HomeMy WebLinkAbout08176ORDINANCE NO. 8176
AN ORDINANCE APPROVING A CONTRACT M086 -057 (17649) BETWEEN
THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND THE
COLORADO DEPARTMENT OF TRANSPORTATION FOR THE PRINTING OF
BICYCLE MAPS AND BUDGETING AND APPROPRIATING FUNDS IN THE
AMOUNT OF $9,000 IN CAPITAL PROJECT NO. DT0901 AND AUTHORIZING
THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Contract M086 -057 (17649) between the City of Pueblo and the Colorado
Department of Transportation for the printing of bicycle maps, a copy of which shall have been
placed on file with the City Clerk on or before seven (7) days prior to the date of final passage of
this ordinance and which has been presented to Council at the Public Hearing upon this
Ordinance, having been approved as to form by the City Attorney, is hereby approved.
SECTION 2.
The President of the City Council is hereby authorized to execute and deliver the
Contract in the name of the City, and the City Clerk is directed to attest same and affix the Seal
of the City thereto.
SECTION 3.
Funds in the amount of $9,000 are hereby budgeted and appropriated in Project No.
DT0901 and shall only be expended and used for this Project.
INTRODUCED: April 12, 2010
BY: Vera Ortegon
COUNCILPERSON
APPROVED:
RESIDENT CF CITY CC) UNCIL
ATTESTED BY:
GIB' Y CLERK
PASSED AND APPROVED: April 26, 2010
Background Paper for Proposed
ORDINANCE
DATE: APRIL 12, 2010 AGENDA ITEM # R -3
DEPARTMENT: PUBLIC WORKS
EARL WILKINSION, P.E.
TITLE
AN ORDINANCE APPROVING A CONTRACT M086 -057 (17649) BETWEEN THE CITY OF
PUEBLO, A MUNICIPAL CORPORATION, AND THE COLORADO DEPARTMENT OF
TRANSPORTATION FOR THE PRINTING OF BICYCLE MAPS AND BUDGETING AND
APPROPRIATING FUNDS IN THE AMOUNT OF $9,000 IN CAPITAL PROJECT NO. DT0901
AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME
ISSUE
Should the City enter into a contract with the Colorado Department of Transportation to allow for
the printing of bicycle maps?
RECOMMENDATION
Approval of Ordinance
BACKGROUND
The City of Pueblo, in cooperation with various other public agencies and citizens, have been in
the process of re- developing the regional bicycle map. The core committee consisted of
members from the City of Pueblo, PACOG, City- County Health Department, and citizens
representing avid bicyclists. Public comment periods were held June 22 "d , 2009 at the Pueblo
West Library and June 24 2009 at the Pueblo County Conference Room.
The goal is to have the maps printed and ready for distribution during the month of May, which
is Colorado Bike Month. These funds will allow the printing of approximately 50,000 maps,
which will be distributed to schools, civic and government building, tourist information locations,
bicycle shops and recreational facilities.
FINANCIAL IMPACT
The total amount of the grant is $9,000 of which 80% ($7,200) is Federal participating funds,
with 20% (1,800) local agency match. The local agency match has been provided by the City -
County Health Department, through a LiveWell grant. City accepted and budgeted said funds in
Project No. DT0901 with Ordinance No. 8114 on November 9, 2009.
(FMLAWRK) Rev 7/8/09
PROJECT STE M086 -057, (17649) Routing # 10 HA2 15588
REGION 2 / (BH) ID 271001173
STATE OF COLORADO
Department of Transportation
Agreement
with
City of Pueblo
TABLE OF CONTENTS I
1. PARTIES 2
2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY. 2
3. RECITALS 2
4. DEFINITIONS 2
5. TERM and EARLY TERMINATION. 3
6. SCOPE OF WORK 3
7. OPTION LETTER MODIFICATION 7
8. PAYMENTS 8
9. ACCOUNTING 10
10. REPORTING - NOTIFICATION 10
11. LOCAL AGENCY RECORDS 11
12. CONFIDENTIAL INFORMATION -STATE RECORDS 11
13. CONFLICT OF INTEREST 12
14. REPRESENTATIONS AND WARRANTIES 12
15. INSURANCE 13
16. DEFAULT - BREACH 14
17. REMEDIES 14
18. NOTICES and REPRESENTATIVES 16
19. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE 17
20. GOVERNMENTAL IMMUNITY 17
21. STATEWIDE CONTRACT MANAGEMENT SYSTEM 17
22. FEDERAL REQUIREMENTS 18
23. DISADVANTAGED BUSINESS ENTERPRISE (DBE) 18
24. DISPUTES 18
25. GENERAL PROVISIONS 18
26. COLORADO SPECIAL PROVISIONS 21
27. SIGNATURE PAGE 23
28. EXHIBIT A - SCOPE OF WORK 1
29. EXHIBIT B - LOCAL AGENCY RESOLUTION 1
30. EXHIBIT C - FUNDING PROVISIONS 1
31. EXHIBIT D - OPTION LETTER 1
32. EXHIBIT E - LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST 1
33. EXHIBIT F - CERTIFICATION FOR FEDERAL -AID CONTRACTS 1 1
34. EXHIBIT G - DISADVANTAGED BUSINESS ENTERPRISE
35. EXHIBIT H - LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES 1
36. EXHIBIT I - FEDERAL -AID CONTRACT PROVISIONS 1 1
37. EXHIBIT J - FEDERAL REQUIREMENTS
1. PARTIES
THIS AGREEMENT is entered into by and between the City of Pueblo (hereinafter called the "Local
Agency "), and the STATE OF COLORADO acting by and through the Department of Transportation
(hereinafter called the "State" or "CDOT ").
2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY.
This Agreement shall not be effective or enforceable until it is approved and signed by the Colorado
State Controller or their designee (hereinafter called the "Effective Date "). The State shall not be liable
to pay or reimburse the Local Agency for any performance hereunder, including, but not limited to
costs or expenses incurred, or be bound by any provision hereof prior to the Effective Date.
3. RECITALS
A. Authority, Appropriation, And Approval
Authority exists in the law and funds have been budgeted, appropriated and otherwise made
available and a sufficient unencumbered balance thereof remains available for payment and the
required approval, clearance and coordination have been accomplished from and with
appropriate agencies.
i. Federal Authority
Pursuant to Title I, Subtitle A, Section 1108 of the "Transportation Equity Act for the 21s
Century" of 1998 (TEA -21) and /or the "Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users" (SAFETEA -LU) of 2005 and to applicable provisions of Title
23 of the United States Code and implementing regulations at Title 23 of the Code of Federal
Regulations, as may be amended, (collectively referred to hereinafter as the "Federal
Provisions "), certain federal funds have been and are expected to continue to be allocated
for transportation projects requested by the Local Agency and eligible under the Surface
Transportation Improvement Program that has been proposed by the State and approved by
the Federal Highway Administration ( "FHWA ").
ii. State Authority
Pursuant to CRS §43 -1 -223 and to applicable portions of the Federal Provisions, the State is
responsible for the general administration and supervision of performance of projects in the
Program, including the administration of federal funds for a Program project performed by a
Local Agency under a contract with the State. This Agreement is executed under the
authority of CRS § §29 -1 -203, 43 -1 -110; 43 -1 -116, 43- 2- 101(4)(c) and 43 -2 -14.
B. Consideration
The Parties acknowledge that the mutual promises and covenants contained herein and other
good and valuable consideration are sufficient and adequate to support this Agreement.
C. Purpose
The purpose of this Agreement is to disburse Federal funds to the Local Agency pursuant to
CDOT's Stewardship Agreement with the FHWA.
D. References
All references in this Agreement to sections (whether spelled out or using the § symbol),
subsections, exhibits or other attachments, are references to sections, subsections, exhibits or
other attachments contained herein or incorporated as a part hereof, unless otherwise noted.
4. DEFINITIONS
The following terms as used herein shall be construed and interpreted as follows:
A. Agreement or Contract
"Agreement" or "Contract" means this Agreement, its terms and conditions, attached exhibits,
documents incorporated by reference under the terms of this Agreement, and any future
modifying agreements, exhibits, attachments or references that are incorporated pursuant to
Colroado State Fiscal Rules and Policies.
B. Agreement Funds
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"Agreement Funds" means funds payable by the State to Local Agency pursuant to this
Agreement.
C. Budget
"Budget" means the budget for the Work described in Exhibit C.
D. Consultant and Contractor
"Consultant" means a professional engineer or designer hired by Local Agency to design the
Work and "Contractor" means the general construction contractor hired by Local Agency to
construct the Work.
E. Evaluation
"Evaluation" means the process of examining the Local Agency's Work and rating it based on
criteria established in §6 and Exhibits A and E.
F. Exhibits and Other Attachments
The following exhibit(s) are attached hereto and incorporated by reference herein: Exhibit A
(Scope of Work), Exhibit B (Resolution), Exhibit C (Funding Provisions), Exhibit D (Option
Letter), Exhibit E (Checklist), Exhibit F (Certification for Federal -Aid Funds), Exhibit G
(Disadvantaged Business Enterprise), Exhibit H (Local Agency Procedures), Exhibit I (Federal -
Aid Contract Provisions) and Exhibit J (Federal Requirements).
G. Goods
"Goods" means tangible material acquired, produced, or delivered by the Local Agency either
separately or in conjunction with the Services the Local Agency renders hereunder.
H. Oversight
"Oversight" means the term as it is defined in the Stewardship Agreement between CDOT and
the Federal Highway Administration ( "FHWA ") and as it is defined in the Local Agency Manual.
I. Party or Parties
"Party" means the State or the Local Agency and "Parties" means both the State and the Local
Agency
J. Work Budget
Work Budget means the budget described in Exhibit C.
K. Services
"Services" means the required services to be performed by the Local Agency pursuant to this
Contract.
L. Work
"Work" means the tasks and activities the Local Agency is required to perform to fulfill its
obligations under this Contract and Exhibits A and E, including the performance of the
Services and delivery of the Goods.
M. Work Product
"Work Product" means the tangible or intangible results of the Local Agency's Work, including,
but not limited to, software, research, reports, studies, data, photographs, negatives or other
finished or unfinished documents, drawings, models, surveys, maps, materials, or work product
of any type, including drafts.
5. TERM and EARLY TERMINATION.
The Parties' respective performances under this Agreement shall commence on the Effective Date.
This Agreement shall terminate after five (5) years of state controllers signature in section 27, unless
sooner terminated or completed as demonstrated by final payment and final audit.
6. SCOPE OF WORK
A. Completion
The Local Agency shall complete the Work and other obligations as described herein in Exhibit
A. Work performed prior to the Effective Date or after final acceptance shall not be considered
part of the Work.
B. Goods and Services
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The Local Agency shall procure Goods and Services necessary to complete the Work. Such
procurement shall be accomplished using the Contract Funds and shall not increase the
maximum amount payable hereunder by the State.
C. Employees
All persons employed hereunder by the Local Agency, or any Consultants or Contractor shall be
considered the Local Agencys', Consultants' or Contractors' employee(s) for all purposes and
shall not be employees of the State for any purpose.
D. State and Local Agency Commitments
i. Design
If the Work includes preliminary design or final design or design work sheets, or special
provisions and estimates (collectively referred to as the "Plans "), the Local Agency shall
comply with and be responsible for satisfying the following requirements:
a) Perform or provide the Plans to the extent required by the nature of the Work.
b) Prepare final design in accordance with the requirements of the latest edition of the
American Association of State Highway Transportation Officials (AASHTO) manual or
other standard, such as the Uniform Building Code, as approved by the State.
c) Prepare provisions and estimates in accordance with the most current version of the
State's Roadway and Bridge Design Manuals and Standard Specifications for Road and
Bridge Construction or Local Agency specifications if approved by the State.
d) Include details of any required detours in the Plans in order to prevent any interference
of the construction Work and to protect the traveling public.
e) Stamp the Plans produced by a Colorado Registered Professional Engineer.
f) Provide final assembly of Plans and all other necessary documents.
g) Be responsible for the Plans' accuracy and completness.
h) Make no further changes in the Plans following the award of the construction contract to
Contractor unless agreed to in writing by the Parties. The Plans shall be considered final
when approved in writing by CDOT and when final they shall be incorporated herein.
ii. Local Agency Work
a) Local Agency shall comply with the requirements of the Americans With Disabilities Act
(ADA), and applicable federal regulations and standards as contained in the document
"ADA Accessibility Requirements in CDOT Transportation Projects ".
b) Local Agency shall afford the State ample opportunity to review the Plans and make any
changes in the Plans that are directed by the State to comply with FHWA requirements.
c) Local Agency may enter into a contract with a Consultant to perform all or any portion of
the Plans and /or of construction administration. Provided, however, if federal -aid funds are
involved in the cost of such Work to be done by such Consultant, such Consultant contract
(and the performance /provision of the Plans under the contract) must comply with all
applicable requirements of 23 C.F.R. Part 172 and with any procedures implementing
those requirements as provided by the State, including those in Exhibit H. If the Local
Agency enters into a contract with a Consultant for the Work:
(1) Local Agency shall submit a certification that procurement of any Consultant
contract complies with the requirements of 23 C.F.R. 172.5(1) prior to entering into
such Consultant contract, subject to the State's approval. If not approved by the
State, the Local Agency shall not enter into such Consultant contract.
(2) Local Agency shall ensure that all changes in the Consultant contract have
prior approval by the State and FHWA and that they are in writing. Immediately
after the Consultant contract has been awarded, one copy of the executed
Consultant contract and any amendments shall be submitted to the State.
(3) Local Agency shall require that all billings under the consultant contract comply
with the State's standardized billing format. Examples of the billing formats are
available from the CDOT Agreements Office.
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(4) Local Agency (and any Consultant) shall comply with 23 C.F.R. 172.5(b) and
(d) and use the CDOT procedures described in Exhibit H to administer the
Consultant contract.
(5) Local Agency may expedite any CDOT approval of its procurement process
and /or consultant contract by submitting a letter to CDOT from the Local Agency's
attorney /authorized representative certifying compliance with Exhibit H and 23
C.F.R. 172.5(b)and (d).
(6) Local Agency shall ensure that the Consultant agreement complies with the
requirements of 49 CFR 18.36(i) and contains the following language verbatim:
(a) The design work under this Agreement shall be compatible with the
requirements of the contract between the Local Agency and the State (which is
incorporated herein by this reference) for the design /construction of the project.
The State is an intended third -party beneficiary of this agreement for that
purpose.
(b) Upon advertisement of the project work for construction, the consultant
shall make available services as requested by the State to assist the State in
the evaluation of construction and the resolution of construction problems that
may arise during the construction of the project.
(c) The consultant shall review the Construction Contractor's shop drawings for
conformance with the contract documents and compliance with the provisions
of the State's publication, Standard Specifications for Road and Bridge
Construction, in connection with this work.
d) The State, in its sole discretion, may review construction plans, special provisions and
estimates and may require the Local Agency to make such changes therein as the State
determines necessary to comply with State and FHWA requirements.
iii. Construction
a) If the Work includes construction, the Local Agency shall perform the construction in
accordance with the approved design plans and /or administer the construction in
accordance with the Exhibit E. Such administration shall include Work inspection and
testing; approving sources of materials; performing required plant and shop inspections;
documentation of contract payments, testing and inspection activities; preparing and
approving pay estimates; preparing, approving and securing the funding for contract
modification orders and minor contract revisions; processing Construction Contractor
claims; construction supervision; and meeting the Quality Control requirements of the
FHWA/CDOT Stewardship Agreement, as described in the Local Agency Contract
Administration Checklist.
b) If the Local Agency is performing the Work, the State may, after providing written notice
of the reason for the suspension to the Local Agency, suspend the Work, wholly or in part,
due to the failure of the Local Agency or its Contractor to correct conditions which are
unsafe for workers or for such periods as the State may deem necessary due to unsuitable
weather, or for conditions considered unsuitable for the prosecution of the Work, or for any
other condition or reason deemed by the State to be in the public interest.
c) The Local Agency shall be responsible for the following:
(1) Appointing a qualified professional engineer, licensed in the State of Colorado,
as the Local Agency Project Engineer (LAPE), to perform engineering
administration. The LAPE shall administer the Work in accordance with this
Agreement, the requirements of the construction contract and applicable State
procedures.
(2) For the construction of the Work, advertising the call for bids upon approval by
the State and awarding the construction contract(s) to the low responsible
bidder(s).
(a) All advertising and bid awards, pursuant to this agreement, by the Local
Agency shall comply with applicable requirements of 23 U.S.C. §112 and 23
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C.F.R. Parts 633 and 635 and C.R.S. § 24 -92 -101 et seq. Those requirements
include, without limitation, that the Local Agency and its Contractor shall
incorporate Form 1273 (Exhibit 1) in its entirety verbatim into any
subcontract(s) for those services as terms and conditions therefore, as required
by 23 C.F.R. 633.102(e).
(b) The Local Agency may accept or reject the proposal of the apparent low
bidder for Work on which competitive bids have been received. The Local
Agency must accept or reject such bid within three (3) working days after they
are publicly opened.
(c) As part of accepting bid awards, the Local Agency shall provide additional
funds, subject to their availability and appropriation, necessary to complete the
Work if no additional federal -aid funds are available.
(3) The requirements of this §6(D)(iii)(c)(2) also apply to any advertising and
awards made by the State.
(4) If all or part of the Work is to be accomplished by the Local Agency's personnel
(i.e. by force account) rather than by a competitive bidding process, the Local
Agency shall perform such work in accordance with pertinent State specifications
and requirements of 23 C.F.R. 635, Subpart B, Force Account Construction.
(a) Such Work will normally be based upon estimated quantities and firm unit
prices agreed to between the Local Agency, the State and FHWA in advance of
the Work, as provided for in 23 C.R.F. 635.204(c). Such agreed unit prices
shall constitute a commitment as to the value of the Work to be performed.
(b) An alternative to the preceeding subsection is that the Local Agency may
agree to participate in the Work based on actual costs of labor, equipment
rental, materials supplies and supervision necessary to complete the Work.
Where actual costs are used, eligibility of cost items shall be evaluated for
compliance with 48 C.F.R. Part 31.
(c) If the State provides matching funds under this Agreement, rental rates for
publicly owned equipment shall be determined in accordance with the State's
Standard Specifications for Road and Bridge Construction §109.04.
(d) All Work being paid under force account shall have prior approval of the
State and /or FHWA and shall not be initiated until the State has issued a
written notice to proceed.
iv. State's Commitments
a) The State will perform a final project inspection of the Work as a quality
control /assurance activity. When all Work has been satisfactorily completed, the State will
sign the FHWA Form 1212.
b) Notwithstanding any consents or approvals given by the State for the Plans, the State
shall not be liable or responsible in any manner for the structural design, details or
construction of any major structures designed by, or that are the responsibility of, the Local
Agency as identified in the Local Agency Contract Administration Checklist, Exhibit E,
v. ROW and Acquistion /Relocation
a) If the Local Agency purchases a right of way for a State highway, including areas of
influence, the Local Agency shall immediately convey title to such right of way to CDOT
after the Local Agency obtains title.
b) Any acquisition /relocation activities shall comply with all applicable federal and state
statutes and regulations, including but not limited to the Uniform Relocation Assistance and
Real Property Acquisition Policies Act of 1970 as amended and the Uniform Relocation
Assistance and Real Property Acquisition Policies for Federal and Federally Assisted
Programs as amended (49 C.F.R. Part 24), CDOT's Right of Way Manual, and CDOT's
Policy and Procedural Directives.
c) The Parties' respective compliance responsibilities depend on the level of federal
participation; provided however, that the State always retains Oversight responsibilities.
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d) The Parties' respective responsibilities under each level in CDOT's Right of Way Manual
(located at http: / /www.dot.state.co.us /ROW Manual/) and reimbursement for the levels will be
under the following categories:
(1) Right of way acquisition (3111) for federal participation and non - participation;
(2) Relocation activities, if applicable (3109);
(3) Right of way incidentals, if applicable (expenses incidental to
acquisition /relocation of right of way — 3114).
vi. Utilities
If necessary, the Local Agency shall be responsible for obtaining the proper clearance or
approval from any utility company which may become involved in the Work. Prior to the Work
being advertised for bids, the Local Agency shall certify in writing to the State that all such
clearances have been obtained.
vii. Railroads
If the Work involves modification of a railroad company's facilities and such modification will
be accomplished by railroad company, the Local Agency shall make timely application to the
Public Utilities commission requesting its order providing for the installation of the proposed
improvements and not proceed with that part of the Work without compliance. The Local
Agency shall also establish contact with the railroad company involved for the purpose of
complying with applicable provisions of 23 C.F.R. 646, subpart B, concerning federal -aid
projects involving railroad facilities and:
a) Execute an agreement setting out what work is to be accomplished and the location(s)
thereof, and which costs shall be eligible for federal participation.
b) Obtain the railroad's detailed estimate of the cost of the Work.
c) Establish future maintenance responsibilities for the proposed installation.
d) Proscribe future use or dispositions of the proposed improvements in the event of
abandonment or elimination of a grade crossing.
e) Establish future repair and /or replacement responsibilities in the event of accidental
destruction or damage to the installation.
viii. Environmental Obligations
The Local Agency shall perform all Work in accordance with the requirements of the current
federal and state environmental regulations including the National Environmental Policy Act
of 1969 (NEPA) as applicable.
ix. Maintenance Obligations
The Local Agency shall maintain and operate the Work constructed under this Agreement at
its own cost and expense during their useful life, in a manner satisfactory to the State and
FHWA, and the Local Agency shall provide for such maintenance and operations obligations
each year. Such maintenance and operations shall be conducted in accordance with all
applicable statutes, ordinances and regulations pertaining to maintaining such
Pp ,
improvements. The State and FHWA may make periodic inspections to verify that such
improvements are being adequately maintained.
7. OPTION LETTER MODIFICATION
Option Letters may be used to extend Agreement term, change the level of service within the current
term due to unexpected overmatch, add a phase without increasing contract dollars, or increase or
decrease the amount of funding. These options are limited to the specific scenarios listed below. The
Option Letter shall not be deemed valid until signed by the State Controller or an authorized delegate.
Following are the applications for the individual options under the Option Letter form:
A. Option 1- Level of service change within current term due to unexpected overmatch in an
overbid situation only.
In the event the State has contracted all project funding and the Local Agency's construction bid
is higher than expected, this option allows for additional Local Overmatch dollars to be provided
by the Local Agency to be added to the contract. This option is only applicable for Local
Overmatch on an overbid situation and shall not be intended for any other Local Overmatch
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funding. The State may unilaterally increase the total dollars of this contract as stipulated by the
executed Option Letter (Exhibit D), which will bring the maximum amount payable under this
contract tothe amount indicated in Exhibit C -1 attached to the executed Option Letter (future
changes to Exhibit C shall be labeled as C -2, C -3, etc, as applicable). Performance of the
services shall continue under the same terms as established in the contract. The State will use
the Financial Statement submitted by the Local Agency for "Concurrence to Advertise" as
evidence of the Local Agency's intent to award and it will also provide the additional amount
required to exercise this option. If the State exercises this option, the contract will be considered
to include this option provision.
B. Option 2 — Option to add overlapping phase without increasing contract dollars.
The State may require the contractor to begin a phase that may include Design, Construction,
Environmental, Utilities, ROW Incidentals or Miscellaneous (this does not apply to
Acquisition /Relocation or Railroads) as detailed in Exhibit A and at the same terms and
conditions stated in the original contract with the contract dollars remaining the same. The State
may exercise this option by providing a fully executed option to the contractor within thirty (30)
days before the initial targeted start date of the phase, in a form substantially equivalent to
Exhibit D. If the State exercises this option, the contract will be considered to include this option
provision.
C. Option 3 - To update funding (increases and /or decreases) with a new Exhibit C.
This option can be used to increase and /or decrease the overall contract dollars (state, federal,
local match, local agency overmatch) to date, by replacing the original funding exhibit (Exhibit
C) in the Original Contract with an updated Exhibit C -1 (subsequent exhibits to Exhibit C -1
shall be labeled C -2, C -3, etc). The State may have a need to update changes to state, federal,
local match and local agency overmatch funds as outlined in Exhibit C -1, which will be attached
to the option form. The State may exercise this option by providing a fully executed option to the
contractor within thirty (30) days after the State has received notice of funding changes, in a
form substantially equivalent to Exhibit D. If the State exercises this option, the contract will be
considered to include this option provision.
8. PAYMENTS
The State shall, in accordance with the provisions of this §8, pay the Local Agency in the amounts
and using the methods set forth below:
A. Maximum Amount
The maximum amount payable is set forth in Exhibit C as determined by the State from
available funds. Payments to the Local Agency are limited to the unpaid encumbered balance of
the Contract set forth in Exhibit C. The Local Agency shall provide its match share of the costs
as evidenced by an appropriate ordinance /resolution or other authority letter which expressly
authorizes the Local Agency the authority to enter into this Agreement and to expend its match
share of the Work. A copy of such ordinance /resolution or authority letter is attached hereto as
Exhibit B.
B. Payment
i. Advance, Interim and Final Payments
Any advance payment allowed under this Contract or in Exhibit C shall comply with State
Fiscal Rules and be made in accordance with the provisions of this Contract or such Exhibit.
The Local Agency shall initiate any payment requests by submitting invoices to the State in
the form and manner set forth in approved by the State.
ii. Interest
The State shall fully pay each invoice within 45 days of receipt thereof if the amount invoiced
represents performance by the Local Agency previously accepted by the State. Uncontested
amounts not paid by the State within 45 days shall bear interest on the unpaid balance
beginning on the 46th day at a rate not to exceed one percent per month until paid in full;
provided, however, that interest shall not accrue on unpaid amounts that are subject to a
good faith dispute. The Local Agency shall invoice the State separately for accrued interest
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on delinquent amounts. The billing shall reference the delinquent payment, the number of
days interest to be paid and the interest rate.
iii. Available Funds - Contingency- Termination
The State is prohibited by law from making commitments beyond the term of the State's
current fiscal year. Therefore, the Local Agency's compensation beyond the State's current
Fiscal Year is contingent upon the continuing availability of State appropriations as provided
in the Colorado Special Provisions. The State's performance hereunder is also contingent
upon the continuing availability of federal funds. Payments pursuant to this Contract shall be
made only from available funds encumbered for this Contract and the State's liability for such
payments shall be limited to the amount remaining of such encumbered funds. If State or
federal funds are not appropriated, or otherwise become unavailable to fund this Contract,
the State may terminate this Contract immediately, in whole or in part, without further liability
in accordance with the provisions hereof.
iv. Erroneous Payments
At the State's sole discretion, payments made to the Local Agency in error for any reason,
including, but not limited to overpayments or improper payments, and unexpended or excess
funds received by the Local Agency, may be recovered from the Local Agency by deduction
from subsequent payments under this Contract or other contracts, Agreements or
agreements between the State and the Local Agency or by other appropriate methods and
collected as a debt due to the State. Such funds shall not be paid to any party other than the
State.
C. Use of Funds
Contract Funds shall be used only for eligible costs identified herein.
D. Matching Funds
The Local Agency shall provide matching funds as provided in §8.A. and Exhibit C. The Local
Agency shall have raised the full amount of matching funds prior to the Effective Date and shall
report to the State regarding the status of such funds upon request. The Local Agency's
obligation to pay all or any part of any matching funds, whether direct or contingent, only extend
to funds duly and lawfully appropriated for the purposes of this Agreement by the authorized
representatives of the Local Agency and paid into the Local Agency's treasury. The Local
Agency represents to the State that the amount designated "Local Agency Matching Funds" in
Exhibit C has been legally appropriated for the purpose of this Agreement by its authorized
representatives and paid into its treasury. The Local Agency does not by this Agreement
irrevocably pledge present cash reserves for payments in future fiscal years, and this
Agreement is not intended to create a multiple - fiscal year debt of the Local Agency. The Local
Agency shall not pay or be liable for any claimed interest, late charges, fees, taxes or penalties
of any nature, except as required by the Local Agency's laws or policies.
E. Reimbursement of Local Agency Costs
The State shall reimburse the Local Agency's allowable costs, not exceeding the maximum total
amount described in Exhibit C and §8. The applicable principles described in 49 C.F.R. 18
Subpart C and 49 C.F.R. 18.22 shall govern the State's obligation to reimburse all costs
incurred by the Local Agency and submitted to the State for reimubursement hereunder, and the
Local Agency shall comply with all such principles. The State shall reimburse the Local Agency
for the federal -aid share of properly documented costs related to the Work after review and
approval thereof, subject to the provisions of this Agreement and Exhibit C. However, any costs
incurred by the Local Agency prior to the date of FHWA authorization for the Work and prior to
the Effective Date shall not be reimbursed absent specific FHWA and State Controller approval
thereof. Costs shall be:
i. Reasonable and Necessary
Resonable and necessary to accomplish the Work and for the Goods and Services provided.
ii. Net Cost
Actual net cost to the Local Agency (i.e. the price paid minus any items of value received by
the Local Agency that reduce the cost actually incurred);
Page 9 of 23
AV
9. ACCOUNTING
The Local Agency shall establish and maintain accounting systems in accordance with generally
accepted accounting standards (a separate set of accounts, or as a separate and integral part of its
current accounting scheme). Such accounting systems shall, at a minimum, provide as follows:
A. Local Agency Performing the Work
If Local Agency is performing the Work, all allowable costs, including any approved services
contributed by the Local Agency or others, shall be documented using payrolls, time records,
invoices, contracts, vouchers, and other applicable records.
B. Local Agency- Checks or Draws
Checks issued or draws made by the Local Agency shall be made or drawn against properly
signed vouchers detailing the purpose thereof. All checks, payrolls, invoices, contracts,
vouchers, orders, and other accounting documents shall be on file in the office of the Local
Agency ,clearly identified, readily accessible, and to the extent feasible, kept separate and apart
from all other Work documents.
C. State - Administrative Services
The State may perform any necessary administrative support services required hereunder. The
Local Agency shall reimburse the State for the costs of any such services from the Budget as
provided for in Exhibit C. If FHWA funding is not available or is withdrawn, or if the Local Agency
terminates this Agreement prior to the Work being approved or completed, then all actual
incurred costs of such services and assistance provided by the State shall be the Local
Agency's sole expense.
D. Local Agency- Invoices
The Local Agency's invoices shall describe in detail the reimbursable costs incurred by the
Local Agency, for which it seeks reimbursement; the dates such costs were incurred; and the
amounts thereof, and shall not be submitted more often than monthly.
E. Invoicing Within 60 Days
The State shall not be liable to reimburse the Local Agency for any costs unless CDOT receives
such invoices within 60 days after the date for which payment is requested, including final
invoicing. Final payment to the Local Agency may be withheld at the discretion of the State until
completion of final audit. Any costs incurred by the Local Agency that are not allowable under
49 C.F.R. 18 shall be reimbursed by the Local Agency, or the State may offset them against any
payments due from the State to the Local Agency.
F. Reimbursement of State Costs
CDOT shall perform Oversight and the Local Agency shall reimburse CDOT for its related costs.
The Local Agency shall pay invoices within 60 days after receipt thereof. If the Local Agency
fails to remit payment within 60 days, at CDOT's request, the State is authorized to withhold an
equal amount from future apportionment due the Local Agency from the Highway Users Tax
Fund and to pay such funds directly to CDOT. Interim funds, shall be payable from the State
Highway Supplementary Fund (400) until CDOT is reimbursed. If the Local Agency fails to make
payment within 60 days, it shall pay interest to the State at a rate of one percent per month on
the delinquent amounts until the billing is paid in full. CDOT's invoices shall describe in detail
the reimbursable costs incurred, the dates incurred; and the amounts thereof, and shall not be
submitted more often than monthly.
10. REPORTING - NOTIFICATION
Reports, Evaluations, and Reviews required under this §10 shall be in accordance with the
procedures of and in such form as prescribed by the State and in accordance with §19, if applicable.
A. Performance, Progress, Personnel, and Funds
The Local Agency shall submit a report to the State upon expiration or sooner termination of this
Agreement, containing an Evaluation and Review of the Local Agency's performance and the
final status of the Local Agency's obligations hereunder.
B. Litigation Reporting
Page 10 of 23
Within 10 days after being served with any pleading related to this Agreement, in a legal action
filed with a court or administrative agency, the Local Agency shall notify the State of such action
and deliver copies of such pleadings to the State's principal representative as identified herein.
If the State or its principal representative is not then serving, such notice and copies shall be
delivered to the Executive Director of CDOT.
C. Noncompliance
The Local Agency's failure to provide reports and notify the State in a timely manner in
accordance with this §10 may result in the delay of payment of funds and /or termination as
provided under this Agreement.
D. Documents
Upon request by the State, the Local Agency shall provide the State, or its authorized
representative, copies of all documents, including contracts and subcontracts, in its possession
related to the Work.
11. LOCAL AGENCY RECORDS
A. Maintenance
The Local Agency shall make, keep, maintain, and allow inspection and monitoring by the State
of a complete file of all records, documents, communications, notes and other written materials,
electronic media files, and communications, pertaining in any manner to the Work or the
delivery of Services (including, but not limited to the operation of programs) or Goods
hereunder. The Local Agency shall maintain such records until the last to occur of the following:
(I) a period of three years after the date this Agreement is completed or terminated, or (ii) three
years after final payment is made hereunder, whichever is later, or (iii) for such further period as
may be necessary to resolve any pending matters, or (iv) if an audit is occurring, or the Local
Agency has received notice that an audit is pending, then until such audit has been completed
and its findings have been resolved (collectively, the "Record Retention Period ").
B. Inspection
The Local Agency shall permit the State, the federal government and any other duly authorized
agent of a governmental agency to audit, inspect, examine, excerpt, copy and /or transcribe the
Local Agency's records related to this Agreement during the Record Retention Period to assure
compliance with the terms hereof or to evaluate the Local Agency's performance hereunder.
The State reserves the right to inspect the Work at all reasonable times and places during the
term of this Agreement, including any extension. If the Work fails to conform to the requirements
of this Agreement, the State may require the Local Agency promptly to bring the Work into
conformity with Agreement requirements, at the Local Agency's sole expense. If the Work
cannot be brought into conformance by re- performance or other corrective measures, the State
may require the Local Agency to take necessary action to ensure that future performance
conforms to Agreement requirements and exercise the remedies available under this
Agreement, at law or in equity in lieu of or in conjunction with such corrective measures.
C. Monitoring
The Local Agency also shall permit the State, the federal government or any other duly
authorized agent of a governmental agency, in their sole discretion, to monitor all activities
conducted by the Local Agency pursuant to the terms of this Agreement using any reasonable
procedure, including, but not limited to: internal evaluation procedures, examination of program
data, special analyses, on -site checking, formal audit examinations, or any other procedures. All
such monitoring shall be performed in a manner that shall not unduly interfere with the Local
Agency's performance hereunder.
D. Final Audit Report
If an audit is performed on the Local Agency's records for any fiscal year covering a portion of
the term of this Agreement, the Local Agency shall submit a copy of the final audit report to the
State or its principal representative at the address specified herein.
12. CONFIDENTIAL INFORMATION -STATE RECORDS
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The Local Agency shall comply with the provisions of this §10 if it becomes privy to confidential
information in connection with its performance hereunder. Confidential information, includes, but is not
necessarily limited to, state records, personnel records, and information concerning individuals.
A. Confidentiality
The Local Agency shall keep all State records and information confidential at all times and to
comply with all laws and regulations concerning confidentiality of information. Any request or
demand by a third party for State records and information in the possession of the Local Agency
shall be immediately forwarded to the State's principal representative.
B. Notification
The Local Agency shall notify its agents, employees and assigns who may come into contact
with State records and confidential information that each is subject to the confidentiality
requirements set forth herein, and shall provide each with a written explanation of such
requirements before they are permitted to access such records and information.
C. Use, Security, and Retention
Confidential information of any kind shall not be distributed or sold to any third party or used by
the Local Agency or its agents in any way, except as authorized by the Agreement and as
approved by the State. The Local Agency shall provide and maintain a secure environment that
ensures confidentiality of all State records and other confidential information wherever located.
Confidential information shall not be retained in any files or otherwise by the Local Agency or its
agents, except as set forth in this Agreement and approved by the State.
D. Disclosure - Liability
Disclosure of State records or other confidential information by the Local Agency for any reason
may be cause for legal action by third parties against the Local Agency, the State or their
respective agents. The Local Agency shall indemnify, save, and hold harmless the State, its
employees and agents, against any and all claims, damages, liability and court awards including
costs, expenses, and attorney fees and related costs, incurred as a result of any act or omission
by the Local Agency, or its employees, agents, or assignees pursuant to this §12.
13. CONFLICT OF INTEREST
The Local Agency shall not engage in any business or personal activities or practices or maintain any
relationships which conflict in any way with the full performance of the Local Agency's obligations
hereunder. The Local Agency acknowledges that with respect to this Agreement, even the
appearance of a conflict of interest is harmful to the State's interests. Absent the State's prior written
approval, the Local Agency shall refrain from any practices, activities or relationships that reasonably
appear to be in conflict with the full performance of the Local Agency's obligations to the State
hereunder. If a conflict or appearance exists, or if the Local Agency is uncertain whether a conflict or
the appearance of a conflict of interest exists, the Local Agency shall submit to the State a disclosure
statement setting forth the relevant details for the State's consideration. Failure to promptly submit a
disclosure statement or to follow the State's direction in regard to the apparent conflict constitutes a
breach of this Agreement.
14. REPRESENTATIONS AND WARRANTIES
The Local Agency makes the following specific representations and warranties, each of which was
relied on by the State in entering into this Agreement.
A. Standard and Manner of Performance
The Local Agency shall perform its obligations hereunder, including in accordance with the
highest professional standard of care, skill and diligence and in the sequence and manner set
forth in this Agreement.
B. Legal Authority — The Local Agency and the Local Agency's Signatory
The Local Agency warrants that it possesses the legal authority to enter into this Agreement and
that it has taken all actions required by its procedures, by -laws, and /or applicable laws to
exercise that authority, and to lawfully authorize its undersigned signatory to execute this
Agreement, or any part thereof, and to bind the Local Agency to its terms. If requested by the
Page 12 of 23
State, the Local Agency shall provide the State with proof of the Local Agency's authority to
enter into this Agreement within 15 days of receiving such request.
C. Licenses, Permits, Etc.
The Local Agency represents and warrants that as of the Effective Date it has, and that at all
times during the term hereof it shall have, at its sole expense, all licenses, certifications,
approvals, insurance, permits, and other authorization required by law to perform its obligations
hereunder. The Local Agency warrants that it shall maintain all necessary licenses,
certifications, approvals, insurance, permits, and other authorizations required to properly
perform this Agreement, without reimbursement by the State or other adjustment in Agreement
Funds. Additionally, all employees and agents of the Local Agency performing Services under
this Agreement shall hold all required licenses or certifications, if any, to perform their
responsibilities. The Local Agency, if a foreign corporation or other foreign entity transacting
business in the State of Colorado, further warrants that it currently has obtained and shall
maintain any applicable certificate of authority to transact business in the State of Colorado and
has designated a registered agent in Colorado to accept service of process. Any revocation,
withdrawal or non - renewal of licenses, certifications, approvals, insurance, permits or any such
similar requirements necessary for the Local Agency to properly perform the terms of this
Agreement shall be deemed to be a material breach by the Local Agency and constitute
grounds for termination of this Agreement.
15. INSURANCE
The Local Agency and its contractors shall obtain and maintain insurance as specified in this section
at all times during the term of this Agreement: All policies evidencing the insurance coverage required
hereunder shall be issued by insurance companies satisfactory to the Local Agency and the State.
A. The Local Agency
i. Public Entities
If the Local Agency is a "public entity" within the meaning of the Colorado Governmental
Immunity Act, CRS §24 -10 -101, et seq., as amended (the "GIA "), then the Local Agency
shall maintain at all times during the term of this Agreement such liability insurance, by
commercial policy or self- insurance, as is necessary to meet its liabilities under the GIA. The
Local Agency shall show proof of such insurance satisfactory to the State, if requested by the
State. The Local Agency shall require each Agreement with their Consultant and Contractor,
that are providing Goods or Services hereunder, to include the insurance requirements
necessary to meet Consultant or Contractor liabilities under the GIA.
ii. Non - Public Entities
If the Local Agency is not a "public entity" within the meaning of the Governmental Immunity
Act, the Local Agency shall obtain and maintain during the term of this Agreement insurance
coverage and policies meeting the same requirements set forth in §15(B) with respect to
sub - contractors that are not "public entities ".
B. Contractors
The Local Agency shall require each contract with Contractors, Subcontractors, or Consultants,
other than those that are public entities, providing Goods or Services in connection with this
Agreement, to include insurance requirements substantially similar to the following:
I. Worker's Compensation
Worker's Compensation Insurance as required by State statute, and Employer's Liability
Insurance covering all of the Local Agency's Contractors, Subcontractors, or Consultant's
employees acting within the course and scope of their employment.
ii. General Liability
Commercial General Liability Insurance written on ISO occurrence form CG 00 01 10/93 or
equivalent, covering premises operations, fire damage, independent contractors, products
and completed operations, blanket Agreementual liability, personal injury, and advertising
liability with minimum limits as follows: (a) $1,000,000 each occurrence; (b) $1,000,000
general aggregate; (c) $1,000,000 products and completed operations aggregate; and (d)
Page 13 of 23
$50,000 any one fire. If any aggregate limit is reduced below $1,000,000 because of claims
made or paid, contractors, subcontractors, and consultants shall immediately obtain
additional insurance to restore the full aggregate limit and furnish to the Local Agency a
certificate or other document satisfactory to the Local Agency showing compliance with this
provision.
iii. Automobile Liability
Automobile Liability Insurance covering any auto (including owned, hired and non -owned
autos) with a minimum limit of $1,000,000 each accident combined single limit.
iv. Additional Insured
The Local Agency and the State shall be named as additional insured on the Commercial
General Liability policies (leases and construction contracts require additional insured
coverage for completed operations on endorsements CG 2010 11/85, CG 2037, or
equivalent).
v. Primacy of Coverage
Coverage required of the Consultants or Contractors shall be primary over any insurance or
self- insurance program carried by the Local Agency or the State.
vi. Cancellation
The above insurance policies shall include provisions preventing cancellation or non - renewal
without at least 45 days prior notice to the Local Agency and the State by certified mail.
vii. Subrogation Waiver
All insurance policies in any way related to this Agreement and secured and maintained by
the Local Agency's Consultants or Contractors as required herein shall include clauses
stating that each carrier shall waive all rights of recovery, under subrogation or otherwise,
against the Local Agency or the State, its agencies, institutions, organizations, officers,
agents, employees, and volunteers.
C. Certificates
The Local Agency and all Contractors, subcontractors, or Consultants shall provide certificates
showing insurance coverage required hereunder to the State within seven business days of the
Effective Date of this Agreement. No later than 15 days prior to the expiration date of any such
coverage, the Local Agency and each contractor, subcontractor, or consultant shall deliver to
the State or the Local Agency certificates of insurance evidencing renewals thereof. In addition,
upon request by the State at any other time during the term of this Agreement or any sub-
contract, the Local Agency and each contractor, subcontractor, or consultant shall, within 10
days of such request, supply to the State evidence satisfactory to the State of compliance with
the provisions of this §15.
16. DEFAULT - BREACH
A. Defined
In addition to any breaches specified in other sections of this Agreement, the failure of either
Party to perform any of its material obligations hereunder in whole or in part or in a timely or
satisfactory manner, constitutes a breach.
B. Notice and Cure Period
In the event of a breach, notice of such shall be given in writing by the aggrieved Party to the
other Party in the manner provided in §16. If such breach is not cured within 30 days of receipt
of written notice, or if a cure cannot be completed within 30 days, or if cure of the breach has
not begun within 30 days and pursued with due diligence, the State may exercise any of the
remedies set forth in §17. Notwithstanding anything to the contrary herein, the State, in its sole
discretion, need not provide advance notice or a cure period and may immediately terminate
this Agreement in whole or in part if reasonably necessary to preserve public safety or to
prevent immediate public crisis..
17. REMEDIES
If the Local Agency is in breach under any provision of this Agreement, the State shall have all of the
remedies listed in this §17 in addition to all other remedies set forth in other sections of this
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Agreement following the notice and cure period set forth in §16(B). The State may exercise any or all
of the remedies available to it, in its sole discretion, concurrently or consecutively.
A. Termination for Cause and /or Breach
If the Local Agency fails to perform any of its obligations hereunder with such diligence as is
required to ensure its completion in accordance with the provisions of this Agreement and in a
timely manner, the State may notify the Local Agency of such non - performance in accordance
with the provisions herein. If the Local Agency thereafter fails to promptly cure such non-
performance within the cure period, the State, at its option, may terminate this entire Agreement
or such part of this Agreement as to which there has been delay or a failure to properly perform.
Exercise by the State of this right shall not be deemed a breach of its obligations hereunder.
The Local Agency shall continue performance of this Agreement to the extent not terminated, if
any.
i. Obligations and Rights
To the extent specified in any termination notice, the Local Agency shall not incur further
obligations or render further performance hereunder past the effective date of such notice,
and shall terminate outstanding orders and sub - Agreements with third parties. However, the
Local Agency shall complete and deliver to the State all Work, Services and Goods not
cancelled by the termination notice and may incur obligations as are necessary to do so
within this Agreement's terms. At the sole discretion of the State, the Local Agency shall
assign to the State all of the Local Agency's right, title, and interest under such terminated
orders or sub - Agreements. Upon termination, the Local Agency shall take timely, reasonable
and necessary action to protect and preserve property in the possession of the Local Agency
in which the State has an interest. All materials owned by the State in the possession of the
Local Agency shall be immediately returned to the State. All Work Product, at the option of
the State, shall be delivered by the Local Agency to the State and shall become the State's
property.
ii. Payments
The State shall reimburse the Local Agency only for accepted performance received up to
the date of termination. If, after termination by the State, it is determined that the Local
Agency was not in default or that the Local Agency's action or inaction was excusable, such
termination shall be treated as a termination in the public interest and the rights and
obligations of the Parties shall be the same as if this Agreement had been terminated in the
public interest, as described herein.
iii. Damages and Witholding
Notwithstanding any other remedial action by the State, the Local Agency also shall remain
liable to the State for any damages sustained by the State by virtue of any breach under this
Agreement by the Local Agency and the State may withhold any payment to the Local
Agency for the purpose of mitigating the State's damages, until such time as the exact
amount of damages due to the State from the Local Agency is determined. The State may
withhold any amount that may be due to the Local Agency as the State deems necessary to
protect the State, including loss as a result of outstanding liens or claims of former lien
holders, or to reimburse the State for the excess costs incurred in procuring similar goods or
services. The Local Agency shall be liable for excess costs incurred by the State in procuring
from third parties replacement Work, Services or substitute Goods as cover.
B. Early Termination in the Public Interest
The State is entering into this Agreement for the purpose of carrying out the public policy of the
State of Colorado, as determined by its Governor, General Assembly, and /or Courts. If this
Agreement ceases to further the public policy of the State, the State, in its sole discretion, may
terminate this Agreement in whole or in part. Exercise by the State of this right shall not
constitute a breach of the State's obligations hereunder. This subsection shall not apply to a
termination of this Agreement by the State for cause or breach by the Local Agency, which shall
be governed by §17(A) or as otherwise specifically provided for herein.
i. Method and Content
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The State shall notify the Local Agency of the termination in accordance with §17, specifying
the effective date of the termination and whether it affects all or a portion of this Agreement.
ii. Obligations and Rights
Upon receipt of a termination notice, the Local Agency shall be subject to and comply with
the same obligations and rights set forth in §17(A)(i).
iii. Payments
If this Agreement is terminated by the State pursuant to this §17(B), the Local Agency shall
be paid an amount which bears the same ratio to the total reimbursement under this
Agreement as the Services satisfactorily performed bear to the total Services covered by this
Agreement, less payments previously made. Additionally, if this Agreement is less than 60%
completed, the State may reimburse the Local Agency for a portion of actual out -of- pocket
expenses (not otherwise reimbursed under this Agreement) incurred by the Local Agency
which are directly attributable to the uncompleted portion of the Local Agency's obligations
hereunder; provided that the sum of any and all reimbursement shall not exceed the
maximum amount payable to the Local Agency hereunder.
C. Remedies Not Involving Termination
The State, its sole discretion, may exercise one or more of the following remedies in addition to
other remedies available to it:
i. Suspend Performance
Suspend the Local Agency's performance with respect to all or any portion of this Agreement
pending necessary corrective action as specified by the State without entitling the Local
Agency to an adjustment in price /cost or performance schedule. The Local Agency shall
promptly cease performance and incurring costs in accordance with the State's directive and
the State shall not be liable for costs incurred by the Local Agency after the suspension of
performance under this provision.
ii. Withold Payment
Withhold payment to the Local Agency until corrections in the Local Agency's performance
are satisfactorily made and completed.
iii. Deny Payment
Deny payment for those obligations not performed, that due to the Local Agency's actions or
inactions, cannot be performed or, if performed, would be of no value to the State; provided,
that any denial of payment shall be reasonably related to the value to the State of the
obligations not performed.
iv. Removal
Demand removal of any of the Local Agency's employees, agents, or contractors whom the
State deems incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable, or
whose continued relation to this Agreement is deemed to be contrary to the public interest or
not in the State's best interest.
v. Intellectual Property
If the Local Agency infringes on a patent, copyright, trademark, trade secret or other
intellectual property right while performing its obligations under this Agreement, the Local
Agency shall, at the State's option (a) obtain for the State or the Local Agency the right to
use such products and services; (b) replace any Goods, Services, or other product involved
with non - infringing products or modify them so that they become non - infringing; or, (c) if
neither of the forgegoing alternatives are reasonably available, remove any infringing Goods,
Services, or products and refund the price paid therefore to the State.
18. NOTICES and REPRESENTATIVES
Each individual identified below is the principal representative of the designating Party. All notices
required to be given hereunder shall be hand delivered with receipt required or sent by certified or
registered mail to such Party's principal representative at the address set forth below. In addition to,
but not in lieu of a hard -copy notice, notice also may be sent by e-mail to the e-mail addresses, if any,
set forth below. Either Party may from time to time designate by written notice substitute addresses or
Page 16 of 23
persons to whom such notices shall be sent. Unless otherwise provided herein, all notices shall be
effective upon receipt.
A. State:
Don Scanga
CDOT — Region 2
1480 Quail Lake Loop
Coplorado Springs, CO 80906
(719)227 -3244
B. Local Agency:
Pepper Whitleff
City of Pueblo
211 East D Street
Pueblo, CO 81003
(719)553 -2702
19. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE
Any software, research, reports, studies, data, photographs, negatives or other documents, drawings,
models, materials, or work product of any type, including drafts, prepared by the Local Agency in the
performance of its obligations under this Agreement shall be the exclusive property of the State and,
all Work Product shall be delivered to the State by the Local Agency upon completion or termination
hereof. The State's exclusive rights in such Work Product shall include, but not be limited to, the right
to copy, publish, display, transfer, and prepare derivative works. The Local Agency shall not use,
willingly allow, cause or permit such Work Product to be used for any purpose other than the
performance of the Local Agencys's obligations hereunder without the prior written consent of the
State.
20. GOVERNMENTAL IMMUNITY
Notwithstanding any other provision to the contrary, nothing herein shall constitute a waiver, express
or implied, of any of the immunities, rights, benefits, protection, or other provisions of the Colorado
Governmental Immunity Act, CRS §24 -10 -101, et seq., as amended. Liability for claims for injuries to
persons or property arising from the negligence of the State of Colorado, its departments, institutions,
agencies, boards, officials, and employees is controlled and limited by the provisions of the
Governmental Immunity Act and the risk management statutes, CRS §24 -30 -1501, et seq., as
amended.
21. STATEWIDE CONTRACT MANAGEMENT SYSTEM
If the maximum amount payable to the Local Agency under this Agreement is $100,000 or greater,
either on the Effective Date or at anytime thereafter, this §21 applies.
The Local Agency agrees to be governed, and to abide, by the provisions of CRS §24- 102 -205, §24-
102 -206, §24 -103 -601, §24- 103.5 -101 and §24- 105 -102 concerning the monitoring of vendor
performance on state agreements /contracts and inclusion of agreement/contract performance
information in a statewide contract management system.
The Local Agency's performance shall be subject to Evaluation and Review in accordance with the
terms and conditions of this Agreement, State law, including CRS §24- 103.5 -101, and State Fiscal
Rules, Policies and Guidance. Evaluation and Review of the Local Agency's performance shall be
part of the normal Agreement administration process and the Local Agency's performance will be
systematically recorded in the statewide Agreement Management System. Areas of Evaluation and
Review shall include, but shall not be limited to quality, cost and timeliness. Collection of information
relevant to the performance of the Local Agency's obligations under this Agreement shall be
determined by the specific requirements of such obligations and shall include factors tailored to match
the requirements of the Local Agency's obligations. Such performance information shall be entered
into the statewide Contract Management System at intervals established herein and a final
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Evaluation, Review and Rating shall be rendered within 30 days of the end of the Agreement term.
The Local Agency shall be notified following each performance Evaluation and Review, and shall
address or correct any identified problem in a timely manner and maintain work progress.
Should the final performance Evaluation and Review determine that the Local Agency demonstrated a
gross failure to meet the performance measures established hereunder, the Executive Director of the
Colorado Department of Personnel and Administration (Executive Director), upon request by CDOT,
and showing of good cause, may debar the Local Agency and prohibit the Local Agency from bidding
on future Agreements. The Local Agency may contest the final Evaluation, Review and Rating by: (a)
filing rebuttal statements, which may result in either removal or correction of the evaluation (CRS §24-
105- 102(6)), or (b) under CRS §24- 105 - 102(6), exercising the debarment protest and appeal rights
provided in CRS § §24- 109 -106, 107, 201 or 202, which may result in the reversal of the debarment
and reinstatement of the Local Agency, by the Executive Director, upon showing of good cause.
22. FEDERAL REQUIREMENTS
The Local Agency and /or their contractors, subcontractors, and consultants shall at all times during
the execution of this Agreement strictly adhere to, and comply with, all applicable federal and state
laws, and their implementing regulations, as they currently exist and may hereafter be amended. A
listing of certain federal and state laws that may be applicable are described in Exhibit J.
23. DISADVANTAGED BUSINESS ENTERPRISE (DBE)
The Local Agency will comply with all requirements of Exhibit G and the Local Agency Contract
Administration Checklist regarding DBE requirements for the Work, except that if the Local Agency
desires to use its own DBE program to implement and administer the DBE provisions of 49 C.F.R.
Part 26 under this Agreement, it must submit a copy of its program's requirements to the State for
review and approval before the execution of this Agreement. If the Local Agency uses any State -
approved DBE program for this Agreement, the Local Agency shall be solely responsible to defend
that DBE program and its use of that program against all legal and other challenges or complaints, at
its sole cost and expense. Such responsibility includes, without limitation, determinations concerning
DBE eligibility requirements and certification, adequate legal and factual bases for DBE goals and
good faith efforts. State approval (if provided) of the Local Agency's DBE program does not waive or
modify the sole responsibility of the Local Agency for use of its program.
24. DISPUTES
Except as otherwise provided in this Agreement, any dispute concerning a question of fact arising
under this Agreement which is not disposed of by agreement, shall be decided by the Chief Engineer
of the Department of Transportation. The decision of the Chief Engineer will be final and conclusive
unless, within 30 calendar days after the date of receipt of a copy of such written decision, the Local
Agency mails or otherwise furnishes to the State a written appeal addressed to the Executive Director
of CDOT. In connection with any appeal proceeding under this clause, the Local Agency shall be
afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final
decision of a dispute hereunder, the Local Agency shall proceed diligently with the performance of this
Agreement in accordance with the Chief Engineer's decision. The decision of the Executive Director
or his duly authorized representative for the determination of such appeals shall be final and
conclusive and serve as final agency action. This dispute clause does not preclude consideration of
questions of law in connection with decisions provided for herein. Nothing in this Agreement, however,
shall be construed as making final the decision of any administrative official, representative, or board
on a question of law.
25. GENERAL PROVISIONS
A. Assignment
The Local Agency's rights and obligations hereunder are personal and may not be transferred,
assigned or subcontracted without the prior, written consent of the State. Any attempt at
assignment, transfer, subcontracting without such consent shall be void. All assignments and
subcontracts approved by the Local Agency or the State are subject to all of the provisions
Page 18 of 23
hereof. The Local Agency shall be solely responsible for all aspects of subcontracting
arrangements and performance.
B. Binding Effect
Except as otherwise provided in §25(A), all provisions herein contained, including the benefits
and burdens, shall extend to and be binding upon the Parties' respective heirs, legal
representatives, successors, and assigns.
C. Captions
The captions and headings in this Agreement are for convenience of reference only, and shall
not be used to interpret, define, or limit its provisions.
D. Counterparts
This Agreement may be executed in multiple identical original counterparts, all of which shall
constitute one agreement.
E. Entire Understanding
This Agreement represents the complete integration of all understandings between the Parties
and all prior representations and understandings, oral or written, are merged herein. Prior or
contemporaneous addition, deletion, or other amendment hereto shall not have any force or
affect whatsoever, unless embodied herein.
F. Indemnification - General
If Local Agency is not a "public entity" within the meaning of the Colorado Governmental
Immunity Act, CRS §24 -10 -101, et seq., the Local Agency shall indemnify, save, and hold
harmless the State, its employees and agents, against any and all claims, damages, liability and
court awards including costs, expenses, and attorney fees and related costs, incurred as a
result of any act or omission by the Local Agency, or its employees, agents, subcontractors or
assignees pursuant to the terms of this Agreement. This clause is not applicable to a Local
Agency that is a "public entity" within the meaning of the Colorado Governmental Immunity Act,
CRS §24 -10 -101, et seq.
G. Jurisdction and Venue
All suits, actions, or proceedings related to this Agreement shall be held in the State of Colorado
and exclusive venue shall be in the City and County of Denver.
H. Limitations of Liability
Any and all limitations of liability and /or damages in favor of the Local Agency contained in any
document attached to and /or incorporated by reference into this Agreement, whether referred to
as an exhibit, attachment, schedule, or any other name, are void and of no effect. This includes,
but is not necessarily limited to, limitations on (i) the types of liabilities, (ii) the types of
damages, (iii) the amount of damages, and (iv) the source of payment for damages.
I. Modification
i. By the Parties
Except as specifically provided in this Agreement, modifications of this Agreement shall not
be effective unless agreed to in writing by both parties in an amendment to this Agreement,
properly executed and approved in accordance with applicable Colorado State law, State
Fiscal Rules, and Office of the State Controller Policies, including, but not limited to, the
policy entitled MODIFICATIONS OF AGREEMENTS - TOOLS AND FORMS.
ii. By Operation of Law
This Agreement is subject to such modifications as may be required by changes in Federal
or Colorado State law, or their implementing regulations. Any such required modification
automatically shall be incorporated into and be part of this Agreement on the effective date of
such change, as if fully set forth herein.
J. Order of Precedence
The provisions of this Agreement shall govern the relationship of the State and the Local
Agency. In the event of conflicts or inconsistencies between this Agreement and its exhibits and
attachments, such conflicts or inconsistencies shall be resolved by reference to the documents
in the following order of priority:
Page 19 of 23
i. Colorado Special Provisions,
ii. The provisions of the main body of this Agreement,
iii. Exhibit A (Scope of Work),
iv. Exhibit B (Local Agency Resolution),
v. Exhibit C (Funding Provisions),
vi. Exhibit D (Option Letter),
vii. Exhibit E (Local Agency Contract Administration Checklist),
viii. Other exhibits in descending order of their attachment.
K. Severability
Provided this Agreement can be executed and performance of the obligations of the Parties
accomplished within its intent, the provisions hereof are severable and any provision that is
declared invalid or becomes inoperable for any reason shall not affect the validity of any other
provision hereof.
L. Survival of Certain Agreement Terms
Notwithstanding anything herein to the contrary, provisions of this Agreement requiring
continued performance, compliance, or effect after termination hereof, shall survive such
termination and shall be enforceable by the State if the Local Agency fails to perform or comply
as required.
M. Taxes
The State is exempt from all federal excise taxes under IRC Chapter 32 (No. 84- 730123K) and
from all State and local government sales and use taxes under CRS § §39 -26 -101 and 201 et
seq. Such exemptions apply when materials are purchased or services rendered to benefit the
State; provided however, that certain political subdivisions (e.g., City of Denver) may require
payment of sales or use taxes even though the product or service is provided to the State. The
Local Agency shall be solely liable for paying such taxes as the State is prohibited from paying
for or reimbursing the Local Agency for them.
N. Third Party Beneficiaries
Enforcement of this Agreement and all rights and obligations hereunder are reserved solely to
the Parties, and not to any third party. Any services or benefits which third parties receive as a
result of this Agreement are incidental to the Agreement, and do not create any rights for such
third parties.
O. Waiver
Waiver of any breach of a term, provision, or requirement of this Agreement, or any right or
remedy hereunder, whether explicitly or by lack of enforcement, shall not be construed or
deemed as a waiver of any subsequent breach of such term, provision or requirement, or of any
other term, provision, or requirement.
THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK
Page 20 of 23
26. COLORADO SPECIAL PROVISIONS
The Special Provisions apply to all Agreements except where noted in italics.
1. CONTROLLER'S APPROVAL. CRS §24 -30 -202 (1).
This Agreement shall not be deemed valid until it has been approved by the Colorado State Controller or
designee.
2. FUND AVAILABILITY. CRS §24 -30- 202(5.5).
Financial obligations of the State payable after the current fiscal year are contingent upon funds for that
purpose being appropriated, budgeted, and otherwise made available.
3. GOVERNMENTAL IMMUNITY.
No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied,
of any of the immunities, rights, benefits, protections, or other provisions, of the Colorado Governmental
Immunity Act, CRS §24 -10 -101 et seq., or the Federal Tort Claims Act, 28 U.S.C. § §1346(b) and 2671 et
seq., as applicable now or hereafter amended.
4. INDEPENDENT CONTRACTOR
The Local Agency shall perform its duties hereunder as an independent contractor and not as an
employee. Neither The Local Agency nor any agent or employee of The Local Agency shall be deemed to
be an agent or employee of the State. The Local Agency and its employees and agents are not entitled to
unemployment insurance or workers compensation benefits through the State and the State shall not pay
for or otherwise provide such coverage for The Local Agency or any of its agents or employees.
Unemployment insurance benefits shall be available to The Local Agency and its employees and agents
only if such coverage is made available by The Local Agency or a third party. The Local Agency shall pay
when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to
this Agreement. The Local Agency shall not have authorization, express or implied, to bind the State to
any Agreement, liability or understanding, except as expressly set forth herein. The Local Agency shall
(a) provide and keep in force workers' compensation and unemployment compensation insurance in the
amounts required by law, (b) provide proof thereof when requested by the State, and (c) be solely
responsible for its acts and those of its employees and agents.
5. COMPLIANCE WITH LAW.
The Local Agency shall strictly comply with all applicable federal and State laws, rules, and regulations in
effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair
employment practices.
6. CHOICE OF LAW.
Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation,
execution, and enforcement of this Agreement. Any provision included or incorporated herein by
reference which conflicts with said laws, rules, and regulations shall be null and void. Any provision
incorporated herein by reference which purports to negate this or any other Special Provision in whole or
in part shall not be valid or enforceable or available in any action at law, whether by way of complaint,
defense, or otherwise. Any provision rendered null and void by the operation of this provision shall not
invalidate the remainder of this Agreement, to the extent capable of execution.
7. BINDING ARBITRATION PROHIBITED.
The State of Colorado does not agree to binding arbitration by any extra - judicial body or person. Any
provision to the contrary in this contact or incorporated herein by reference shall be null and void.
8. SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00.
State or other public funds payable under this Agreement shall not be used for the acquisition, operation,
or maintenance of computer software in violation of federal copyright laws or applicable licensing
restrictions. The Local Agency hereby certifies and warrants that, during the term of this Agreement and
any extensions, The Local Agency has and shall maintain in place appropriate systems and controls to
prevent such improper use of public funds. If the State determines that The Local Agency is in violation of
this provision, the State may exercise any remedy available at law or in equity or under this Agreement,
including, without limitation, immediate termination of this Agreement and any remedy consistent with
federal copyright laws or applicable licensing restrictions.
9. EMPLOYEE FINANCIAL INTEREST. CRS § §24 -18 -201 and 24 -50 -507.
The signatories aver that to their knowledge, no employee of the State has any personal or beneficial
interest whatsoever in the service or property described in this Agreement. The Local Agency has no
interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree
Page 21 of 23
with the performance of The Local Agency's services and The Local Agency shall not employ any person
having such known interests.
10. VENDOR OFFSET. CRS § §24 -30 -202 (1) and 24 -30- 202.4.
[Not Applicable to intergovernmental agreements] Subject to CRS §24 -30 -202.4 (3.5), the State
Controller may withhold payment under the State's vendor offset intercept system for debts owed to State
agencies for: (a) unpaid child support debts or child support arrearages; (b) unpaid balances of tax,
accrued interest, or other charges specified in CRS §39 -21 -101, et seq.; (c) unpaid loans due to the
Student Loan Division of the Department of Higher Education; (d) amounts required to be paid to the
Unemployment Compensation Fund; and (e) other unpaid debts owing to the State as a result of final
agency determination or judicial action.
11. PUBLIC CONTRACTS FOR SERVICES. CRS §8- 17.5 -101.
[Not Applicable to Agreements relating to the offer, issuance, or sale of securities, investment advisory
services or fund management services, sponsored projects, intergovernmental Agreements, or
information technology services or products and services] The Local Agency certifies, warrants, and
agrees that it does not knowingly employ or contract with an illegal alien who shall perform work under
this Agreement and shall confirm the employment eligibility of all employees who are newly hired for
employment in the United States to perform work under this Agreement, through participation in the E-
Verify Program or the State program established pursuant to CRS §8- 17.5- 102(5)(c), The Local Agency
shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or enter
into a contract with a subcontractor that fails to certify to The Local Agency that the subcontractor shall
not knowingly employ or contract with an illegal alien to perform work under this Agreement. The Local
Agency (a) shall not use E- Verify Program or State program procedures to undertake pre - employment
screening of job applicants while this Agreement is being performed, (b) shall notify the subcontractor and
the contracting State agency within three days if The Local Agency has actual knowledge that a
subcontractor is employing or contracting with an illegal alien for work under this Agreement, (c) shall
terminate the subcontract if a subcontractor does not stop employing or contracting with the illegal alien
within three days of receiving the notice, and (d) shall comply with reasonable requests made in the
course of an investigation, undertaken pursuant to CRS §8 -17.5- 102(5), by the Colorado Department of
Labor and Employment. If The Local Agency participates in the State program, The Local Agency shall
deliver to the contracting State agency, Institution of Higher Education or political subdivision, a written,
notarized affirmation, affirming that The Local Agency has examined the legal work status of such
employee, and shall comply with all of the other requirements of the State program. If The Local Agency
fails to comply with any requirement of this provision or CRS §8- 17.5 -101 et seq., the contracting State
agency, institution of higher education or political subdivision may terminate this Agreement for breach
and, if so terminated, The Local Agency shall be liable for damages.
12. PUBLIC CONTRACTS WITH NATURAL PERSONS. CRS §24- 76.5 -101.
The Local Agency, if a natural person eighteen (18) years of age or older, hereby swears and affirms
under penalty of perjury that he or she (a) is a citizen or otherwise lawfully present in the United States
pursuant to federal law, (b) shall comply with the provisions of CRS §24- 76.5 -101 et seq., and (c) has
produced one form of identification required by CRS §24- 76.5 -103 prior to the effective date of this
Agreement.
SPs Effective 1/1/09
THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK
Page 22 of 23
27. SIGNATURE PAGE
Agreement Routing Number 10 HA2 15588
THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT
* Persons signing for The Local Agency hereby swear and affirm that they are authorized to act on The Local
Agency's behalf and acknowledge that the State is relying on their representations to that effect.
THE LOCAL AGENCY STATE OF COLORADO
City of Pueblo Bill Ritter, Jr. GOVERNOR
By: Lawrence W. Atencio Colorado Department of Transportation
Title: President of City Council Russell George, xecutive Director
. (4)akniJ
"Signature a_"
By: Pam Hutton — CDOT Chief Engineer
Date: April 26, 2010 �J �iL.T '0
Date:
2nd The Local Agency Signature if Needed LEGAL REVIEW
By: Gina Dutcher ohn W. Suthers, Attorney General
Title: City Clerk
By:
�� i gnature - Assistant Attor a General
*Signature
Date: S
Date: April 26, 2010
ALL AGREEMENTS REQUIRE APPROVAL BY THE STATE CONTROLLER
CRS §24 -30 -202 requires the State Controller to approve all State Agreements. This Agreement is not valid until
signed and dated below by the State Controller or delegate. The Local Agency is not authorized to begin
performance until such time. if The Local Agency begins performing prior thereto, the State of Colorado is not
obligated to pay The Local Agency for such performance or for any goods and /or services provided hereunder.
STATE CONTROLLER
David ermott, CPA
By:
Colorado Department of Transportation
Date: 4
Page 23 of 23
28. EXHIBIT A - SCOPE OF WORK
COLORADO DEPARTMENT OF TRANSPORTATION Orig.Date: 10/262009 Project Code # (SAM: 17649 I STIP#:
DESIGN DATA RBV.Date: Project #: M086 -057
Revision #: 0 PE Project Code:
1
Page t to 3 Region #: 02 Project Description: CITY OF PUEBLO BICYCLE MAPS
Status: N) Preliminary ❑ Final ❑ Revised
County: 101
Submitted By PM: SCANGAD Approved by Program Engineer:
Date: Municipality:
System Code: O - Other Federal - Aid Highway
Revised by: Oversight By: A - Exempt
Date: Planned Length: 0.000
Geographic Location: CITY OF PUEBLO, CO
Type of Terrain:
Description of Proposed Construction /Improvement(Attach map showing site location)
PRINTING OF BICYCLE TRAIL MAPS WITHIN THE CITY OF PUEBLO
MI Project Characteristics (Proposed) Median (Type): ❑ Depressed ❑ Painted ❑ Raised ❑ None
❑ Lighting ❑ Handicap Ramps ❑ Traffic Control Signals ❑ Striping
❑ Curb and Gutter ❑ Curb Only ❑ Left-Turn Slots ❑ Continuous Wid[h=
❑ Sidwalk Width= (] Bikeway Width = ❑ Right -Turn Slots [l Continuous Width=
❑ Parking Lane Width= ❑ Detours Signing ❑ Construction ❑ Permanent
❑ Landscaping requirements (description): ❑ Other (description):
M I Right of Way YesMo Est. # 111 Utilities (list names of known utility companies)
ROW 8/or Perm. Easement Required No
Relocation Required No
Temporary Easement Required: No
Changes in Access: No
Changes to Connecting Roads: NO
Railroad Crossings # of Crossings:
Recommendations :
Environmental Type: Approved On: Project Code # Cleared Under: Project # Cleared Under:
None / /
Comments:
Coordination
❑ Withdrawn Lands (Power Sites, Reservoirs, Etc.) Cleared through BLM or Forest Service Office Irrigation Ditch Name:
❑ New Traffic Ordinance Required ❑ Modify Schedule of Existing Ordinance Muncipality:
Other:
VI Construction Method Advertised By: NoAd Reason: Entity / Agency Contact Name: Phone #:
Local Pepper Whittlef,City of Pueblo 719 - 553 - 2702
MI Safety Considerations I Project Under: Guardrail meets current standards: No
❑ Variance in Minimum Design Standards Required ❑ Safety project not all standards Comments:
❑ Justification Attached ❑ Request to be Submittec addressed
(1 Bridge(see item 12) 11 Sae Remarks
❑ Stage Construction (explain in remarks)
3R projects
Safety Evaluation Complete (date):
Page 1 of 3
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Page 2 of 3
Page 3 of 3 Project Code #(SA #): I Project #: Revise Date:
17649 M086 - 057
Major Structures S. to stay, R= to be removed. P= proposed new structure
Reference Standard Structure Structural Horizontal Vertical Year
Structure ID# Length Paint Feature Intersected _Width Roadway Capacity Clearance Clearance Built
Proposed Treament of Bridges to Remain in Place(address bridge rail, capacity, and allowable surfacing thickness):
® Remarks
This project, in its entirety, is solely responsible for the printing of bicycle trail maps located within the City of Pueblo.
Page3of3
29. EXHIBIT B - LOCAL AGENCY RESOLUTION
LOCAL AGENCY
ORDINANCE
or
RESOLUTION
Page 1 of 1
ORDINANCE NO. 8176
AN ORDINANCE APPROVING A CONTRACT M086 -057 (17649) BETWEEN
THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND THE
COLORADO DEPARTMENT OF TRANSPORTATION FOR THE PRINTING OF
BICYCLE MAPS AND BUDGETING AND APPROPRIATING FUNDS IN THE
AMOUNT OF $9,000 IN CAPITAL PROJECT NO. DT0901 AND AUTHORIZING
THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Contract M086 -057 (17649) between the City of Pueblo and the Colorado
Department of Transportation for the printing of bicycle maps, a copy of which shall have been
placed on file with the City Clerk on or before seven (7) days prior to the date of final passage of
this ordinance and which has been presented to Council at the Public Hearing upon this
Ordinance, having been approved as to form by the City Attorney, is hereby approved.
SECTION 2.
The President of the City Council is hereby authorized to execute and deliver the
Contract in the name of the City, and the City Clerk is directed to attest same and affix the Seal
of the City thereto.
SECTION 3.
Funds in the amount of $9,000 are hereby budgeted and appropriated in Project No.
DT0901 and shall only be expended and used for this Project.
INTRODUCED: April 12, 2010
BY: Vera Ortegon
OUNCILPERSON
i
APPROVED: � � L �
'RESIDENT OF CITY COUNCIL
ATTESTED BY: '��
CITY CLERK
PASSED AND APPROVED: April 26, 2010
30. EXHIBIT C — FUNDING PROVISIONS
A. Cost of Work Estimate
The Local Agency has estimated the total cost the Work to be $9,000.00 which is to be funded as
follows:
1 BUDGETED FUNDS
a. Federal Funds $7,200.00
(80% of Participating Costs)
b. Local Agency Matching Funds $1,800.00
(20% of Participating Costs)
d. Local Agency Overmatch $0.00
(Including Non - Participating Indirects)
TOTAL BUDGETED FUNDS $9,000.00
2 ESTIMATED CDOT- INCURRED COSTS
a. Federal Share $0.00
(_ of Participating Costs)
b. Local Agency
Local Agency Share of Participating Costs $0.00
Non - Participating Costs (Including Non -
Participating Indirects) $0.00
Estimated to be Billed to Local Agency $0.00
TOTAL ESTIMATED CDOT- INCURRED COSTS $0.00
3 ESTIMATED PAYMENT TO LOCAL AGENCY
a. Federal Funds Budgeted (1 a) $7,200.00
b. Less Estimated Federal Share of CDOT- Incurred Costs (2a) $0.00
TOTAL ESTIMATED PAYMENT TO LOCAL AGENCY $7,200.00
FOR CDOT ENCUMBRANCE PURPOSES
Total Encumbrance Amount ($7,200.00 divided by
80 %) $9,000.00
Less ROW Acquisition 3111 and /or ROW
Relocation 3109 $0.00
Net to be encumbered as follows: $9,000.00
WBS Element _17649.20.101 Const 1 3301 1 $9,000.00
Page 1 of 2
B. Matching Funds
The matching ratio for the federal participating funds for this Work is 80% federal -aid funds
(CFDA #20 2050) to 20% Local Agency funds, it being understood that such ratio applies only to
the $9,000.00 that is eligible for federal participation, it being further understood that all
non - participating costs are borne by the Local Agency at 100 %. If the total participating cost of
performance of the Work exceeds $9,000.00, and additional federal funds are made available
for the Work, the Local Agency shall pay 20% of all such costs eligible for federal participation
and 100% of all non - participating costs; if additional federal funds are not made available, the
Local Agency shall pay all such excess costs. If the total participating cost of performance of the
Work is less than $9,000.00, 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 $7,200.00
(For CDOT accounting purposes, the federal funds of $7,200.00 and the Local Agency matching
funds of $1,800.00 will be encumbered for a total encumbrance of $9,000.00), 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.
D. Single Audit Act Amendment
All state and local government and non - profit organization Sub -The Local Agencys receiving
more than $500,000 from all funding sources defined as federal financial assistance for Single
Audit Act Amendment purposes, shall comply with the audit requirements of OMB Circular A-
133 (Audits of States, Local Governments and Non - Profit Organizations) see also, 49 C.F.R.
18.20 through 18.26. The Single Audit Act Amendment requirements applicable to Sub -The
Local Agencys receiving federal funds are as follows:
i. Expenditure less than $500,000
If the Sub -The Local Agency expends less than $500,000 in Federal funds (all federal
sources, not just Highway funds) in its fiscal year then this requirement does not apply.
ii. Expenditure exceeding than $500,000- Highway Funds Only
If the Sub -The Local Agency expends more than $500,000 in Federal funds, but only
received federal Highway funds (Catalog of Federal Domestic Assistance, CFDA 20.205)
then a program specific audit shall be performed. This audit will examine the "financial"
procedures and processes for this program area.
iii. Expenditure exceeding than $500,000 - Multiple Funding Sources
If the Sub -The Local Agency expends more than $500,000 in Federal funds, and the Federal
funds are from multiple sources (FTA, HUD, NPS, etc.) then the Single Audit Act applies,
which is an audit on the entire organization /entity.
iv. Independent CPA
Single Audit shall only be conducted by an independent CPA, not by an auditor on staff. An
audit is an allowable direct or indirect cost.
Page 2 of 2
•
31. EXHIBIT D — OPTION LETTER
SAMPLE IGA OPTION LETTER
(This option has been created by the Office of the State Controller for CDOT use only)
NOTE: This option is limited to the specific contract scenarios listed below
AND may be used in place of exercising a formal amendment.
Date: State Fiscal Year: Option Letter No. CLIN Routing #
Original Contract CMS # Option Letter CMS #
Original Contract SAP # Option Letter SAP #
Vendor name:
A. SUBJECT: (Choose applicable options listed below AND in section B and delete the rest)
1. Level of service change within current term due to an unexpected Local overmatch on an overbid
situation ONLY;
2. Option to add phasing to include Design, Construction, Environmental, Utilities, ROW incidentals or
Miscellaneous ONLY (does not apply to Acquisition /Relocation or Railroads);
3. Option to update funding (a new Exhibit C must be attached with the option letter and shall be
labeled C -1 (future changes for this option shall be labeled as follows: C -2, C -3, C -4, etc.)
B. REQUIRED PROVISIONS. All Option Letters shall contain the appropriate provisions set forth
below:
(Insert the following language for use with Option #1):
In accordance with the terms of the original Agreement (insert FY, Agency code & CLIN routing # of
Basic Contract) between the State of Colorado, Department of Transportation and (insert the Local
Agency's name here), the State hereby exercises the option to record a level of service change due to
unexpected overmatch dollars due to an overbid situation. The Agreement is now increased by
(indicate additional dollars here) specified in Paragraph /Section /Provision of the
original Agreement.
(Insert the following language for use with Option #2):
In accordance with the terms of the original Agreement (insert FY, Agency code & CLIN routing #
Basic Contract) between the State of Colorado, Department of Transportation and (insert the Local
Agency's name here), the State hereby exercises the option to add an overlapping phase in (indicate
Fiscal Year here) that will include (describe which phase will be added and include all that apply —
Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous). Total funds for
this Agreement remain the same (indicate total dollars here) as referenced in
Paragraph /Section /Provision /Exhibit of the original Agreement.
(Insert the following language for use with Option #3):
In accordance with the terms of the original Agreement (insert FY, Agency code & CLIN routing # of
Basic Contract) between the State of Colorado, Department of Transportation and (insert the Local
Agency's name here), the State hereby exercises the option to update funding based on changes
from state, federal, local match and /or local agency overmatch funds. The Agreement is now (select
one: increased and /or decreased) by (insert dollars here) specified in Paragraph/- Section /-
Provision /Exhibit of the original Agreement. A new Exhibit C -1 is made part of the
original Agreement and replaces Exhibit C. (The following is a NOTE only so please delete when
Page 1 of 2
using this option: future changes for this option for Exhibit C shall be labeled as follows: C -2, C -3, C -4,
etc.)
(The following language must be included on ALL options):
The amount of the current Fiscal Year contract value is (increased /decreased) by ($ amount of
change) to a new Agreement value of ($ ) to satisfy services /goods ordered under the
Agreement for the current fiscal year (indicate Fiscal Year). The first sentence in
Paragraph /Section /Provision is hereby modified accordingly.
The total Agreement value to include all previous amendments, option letters, etc. is
($ )•
The effective date of this Option Letter is upon approval of the State Controller or delegate.
APPROVALS:
For the The Local Agency:
Legal Name of the Local Agency
By:
Print Name of Authorized Individual
Signature:
Date:
Title: Official Title of Authorized Individual
State of Colorado:
Bill Ritter, Jr., Governor
B Date:
Executive Director, Colorado Department of Transportation
ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER
CRS §24 -30 -202 requires the State Controller to approve all State Contracts. This Agreement is not valid
until signed and dated below by the State Controller or delegate. Contractor is not authorized to begin
performance until such time. If the Local Agency begins performing prior thereto, the State of Colorado
is not obligated to pay the Local Agency for such performance or for any goods and /or services
provided hereunder.
State Controller
David J. McDermott, CPA
By:
Date:
Form Updated: June 12, 2008
Page 2 of 2
32. EXHIBIT E - LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST
COLORADO DEPARTMENT OF TRANSPORTATION
LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST
Project No. STIP No. Project Code Region
M086 -057
SR 25079 -027 17649 02
Project Location Date
City of Pueblo 10/2812009
Project Description
City of Pueblo Bicycle Maps
Local Agency Local Agency Project Manager
City of Pueblo Pepper Whitt)ef 719 -553 -2702
CDOT Resident Engineer CDOT Project Manager
Richard Zamora Don Scanga 719 - 659 -8230
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 vdll 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.
RESPONSIBLE
NO. DESCRIPTION OF TASK PARTY
LA CDOT
TIP / STIP AND LONG -RANGE PLANS
2.1 1 Review Project to ensure it is consist with STIP and amendments thereto 1 1 X
FEDERAL FUNDING OBLIGATION AND AUTHORIZATION
4.1 Authorize funding by phases (COOT Form 418 - Federal - aid Program Data. Requires FHWA X
concurrenceAnvolvement)
PROJECT DEVELOPMENT
5.1 Prepare Design Data - CDOT Form 463 X
5.2 Prepare Local Agency /COOT Inter-Governmental Agreement (see also Chapter 3) X
5.3 Conduct Consultant Selection /Execute Consultant Agreement X
5.4 Conduct Desiqn Scoping Review Meeting X
5.5 Conduct Public Involvement X
5.6 Conduct Field Inspection Review (FIR) X
5.7 Conduct Environmental Processes (may require FHWA concurrenceAnvolvement) NA
5.8 Acquire Right - - Way (may require FHWA concurrenceAnvolvement) NA
5.9 Obtain Utility and Railroad Agreements NA
5.10 Conduct Final Office Review (FOR) X
5.11 Justify Force Account Work by the Local Agency X
5.12 Justify Proprietary, Sole Source, or Local Agency Furnished Items X
5.13 Document Design Exceptions - CDOT Form 464 X
5.14 Prepare Plans, Specifications and Construction Cost Estimates X
5.15 Ensure Authorization of Funds for Construction - X
CDOT Form 1243 09/06 Pagel of 4
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Page 1 of 4
RESPONSIBLE
NO. DESCRIPTION OF TASK PARTY
LA CDOT
PROJECT DEVELOPMENT CIVIL RIGHTS AND LABOR COMPLIANCE
6.1 Set Underutilized Disadvantaged Business Enterprise (UBDE) Goals for Consultant and X
Construction Contracts (CDOT Region EEO /Civil Rights Specialist)
6.2 Determine Applicability of Davis -Bacon Act X
This project ❑ is ® is not exempt from Davis -Bacon requirements as determined by the
functional classification of the project location (Projects located on local roads and rural
minor collectors may be exempt.)
Richard Zamora 10/28/09
CDOT Resident Engineer (Signature on File) Date
6.3 Set On- the -Job Training Goals. Goal is zero if total construction is less than $1 million (CDOT X
Region EEO /Civil Rights Specialist)
6.4 Title VI Assurances NA
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
7.1 Obtain Approval for Advertisement Period of Less Than Three Weeks X
7.2 Advertise for Bids X
7.3 Distribute "Advertisement Set" of Plans and Specifications X
7.4 Review Worksite and Plan Details with Prospective Bidders While Project Is Under X
Advertisement
7.5 Open Bids X
7.6 Process Bids for Compliance
,77 ;V? . 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
determine if the Contractor has made a good faith effort when the low bidder does not meet X
DBE goals
Submit required documentation for CDOT award concurrence X
7.7 Concurrence from CDOT to Award X
7.8 Approve Rejection of Low Bidder X
7.9 Award Contract X
7.10 Provide "Award" and `Record" Sets of Plans and Specifications X
CONSTRUCTION MANAGEMENT
8.1 Issue Notice to Proceed to the Contractor X
8.2 Project Safety X
8.3 Conduct Conferences:
Pre- Construction Conference (Appendix B) X
Pre -survey
• Construction staking NA
• Monumentation X
Partnering (Optional)
Structural Concrete Pre - Pour (Agenda is in CDOT Construction Manual° NA
' ` Concrete Pavement Pre - Paving (Agenda is in CDOT Construction Manua f NA
HMA Pre - Paving (Agenda is in CDOT Construction Manua NA
8.4 Develop and distribute Public Notice of Planned Construction to media and local residents NA _
8.5 Supervise Construction
A Professional Engineer (PE) registered in Colorado, who will be "in responsible charge of
construction supervision."
Sam Vigil 553 -2267
Local Agency Professional Engineer or Phone number X
CDOT Resident Engineer
CDOT Form 1243 09/06 Paget of 4
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RESPONSIBLE
NO. DESCRIPTION OF TASK PARTY
LA CDOT
Provide competent, experienced staff who will ensure the Contract work is constructed in
accordance with the plans and specifications X
Construction inspection and documentation X
8.6 Approve Shop Drawings NA
8.7 Perform Traffic Control Inspections NA
8.8 Perform Construction Surveying NA
8.9 Monument Right -of -Way NA
8.10 Prepare and Approve Interim and Final Contractor Pay Estimates X
Provide the name and phone number of the person authorized for this task.
Pepper Whittlef 553- 2702
Local Agency Representative Phone number
8.11 Prepare and Approve Interim and Final Utility and Railroad Billings NA
8.12 Prepare Local Agency Reimbursement Requests X
8.13 Prepare and Authorize Change Orders X
8.14 Approve All Change Orders X
8.15 Monitor Project Financial Status X
8.16 Prepare and Submit Monthly Progress Reports X
8.17 Resolve Contractor Claims and Disputes X
8.18 Conduct Routine and Random Project Reviews
Provide the name and phone number of the person responsible for this task. X
Richard Zamora 546 -5778
CDOT Resident Engineer Phone number
MATERIALS
9.1 Conduct Materials Pre - Construction Meeting NA
9.2 Complete CDOT Form 250 - Materials Documentation Record
• Generate form, which includes determining the minimum number of required tests and NA
applicable material submittals for all materials placed on the project
• Update the form as work progresses NA
• Complete and distribute form after work is completed
9.3 Perform Project Acceptance Samples and Tests NA
9.4 Perform Laboratory Verification Tests NA
9.5 Accept Manufactured Products NA
Inspection of structural components:
• Fabrication of structural steel and pre - stressed concrete structural components
• Bridge modular expansion devices (0" to 6" or greater)
• Fabrication of bearing devices
9.6 Approve Sources of Materials NA
9.7 Independent Assurance Testing (IAT), Local Agency Procedures 0 CDOT Procedures 0
• Generate IAT schedule
• Schedule and provide notification NA
• Conduct IAT
9.8 Approve mix designs
• Concrete NA
• Hot mix asphalt
9.9 Check Final Materials Documentation NA
9.10 Complete and Distribute Final Materials Documentation NA
CDOT Form 1243 09/06 Page3 of 4
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CONSTRUCTION CIVIL RIGHTS AND LABOR COMPLIANCE
10.1 Fulfill Project Bulletin Board and Pre- Construction Packet Requirements X
10.2 Process CDOT Form 205 - Sublet Permit Application
Review and sign completed CDOT Form 205 for each subcontractor, and submit to X
EEO /Civil Rights Specialist
10.3 Conduct Equal Employment Opportunity and Labor Compliance Verification Employee X
Interviews. Complete CDOT Form 280
10.4 Monitor Disadvantaged Business Enterprise Participation to Ensure Compliance with the X
"Commercially Useful Function" Requirements
10.5 Conduct Interviews When Project Utilizes On- the -Job Trainees. Complete CDOT Form 200 - X
OJT Training Questionnaire
10.6 Check Certified Payrolls (Contact the Region EEO /Civil Rights Specialists for training requirements.) X
10.7 Submit FHWA Form 1391 - Highway Construction Contractor's Annual EEO Report X
FINALS
11.1 Conduct Final Project Inspection. Complete and submit CDOT Form 1212 - Final X
Acceptance Report (Resident Engineer with mandatory Local Agency participation.)
11.2 Write Final Project Acceptance Letter X
11.3 Advertise for Final Settlement X
11.4 Prepare and Distribute Final As- Constructed Plans X
11.5 Prepare EEO Certification X
11.6 Check Final Quantities, Plans, and Pay Estimate; Check Project Documentation; and submit X
Final Certifications
11.7 Check Material Documentation and Accept Final Material Certification (See Chapter 9) NA
11.8 Obtain CDOT Form 17 from the Contractor and Submit to the Resident Engineer X
11.9 Obtain FHWA Form 47 - Statement of Materials and Labor Used ... from the Contractor NA
11.10 Complete and Submit CDOT Form 1212 — Final Acceptance Report (by CDOT) X
11.11 Process Final Payment X
11.12 Complete and Submit CDOT Form 950 - Project Closure X
11.13 Retain Project Records for Six Years from Date of Project Closure X
11.14 Retain Final Version of Local Agency Contract Administration Checklist X
cc: CDOT Resident Engineer /Project Manager
CDOT Region Program Engineer
CDOT Region EEO /Civil Rights Specialist
CDOT Region Materials Engineer
CDOT Contracts and Market Analysis Branch
Local Agency Project Manager
CDOT Form 1243 09/06 Page4 of 4
Previous editions are obsolete and may not be used
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33. EXHIBIT F — CERTIFICATION FOR FEDERAL -AID CONTRACTS
The Local Agency certifies, by signing this Agreement, to the best of its knowledge and belief, that:
No Federal appropriated funds have been paid or will be paid, by or on behalf or the undersigned, to
any person for influencing or attempting to influence an officer or employee of any Federal agency, a
Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress
in connection with the awarding of any Federal loan, the entering into of any cooperative agreement,
and the extension, continuation, renewal, amendment, or modification of any Federal contract,
Agreement, loan, or cooperative agreement.
If any funds other than Federal appropriated funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or of Congress, or an employee of a Member of
Congress in connection with this Federal contract, Agreement, loan, or cooperative agreement, the
undersigned shall complete and submit Standard Form -LLL, "Disclosure Form to Report Lobbying," in
accordance with its instructions.
This certification is a material representation of fact upon which reliance was placed when this
transaction was made or entered into. Submission of this certification is a prerequisite for making or
entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to
file the required certification shall be subject to a civil penalty of not less than $10,000 and not more
than $100,000 for each such failure.
The prospective participant also agree by submitting his or her bid or proposal that he or she shall
require that the language of this certification be included in all lower tier subcontracts, which exceed
$100,000 and that all such sub - recipients shall certify and disclose accordingly.
Required by 23 CFR 635.112
Page 1 of 1
34. EXHIBIT G — DISADVANTAGED BUSINESS ENTERPRISE
SECTION 1. • Policy.
It is the policy of the Colorado Department of Transportation (CDOT) that disadvantaged business
enterprises shall have the maximum opportunity to participate in the performance of contracts financed
in whole or in part with Federal funds under this agreement, pursuant to 49 CFR Part 23.
Consequently, the 49 CFR Part IE DBE requirements the Colorado Department of Transportation DBE
Program (or a Local Agency DBE Program approved in advance by the State) apply to this agreement.
SECTION 2. DBE Obligation.
The recipient or its the Local Agency agrees to ensure that disadvantaged business enterprises as
determined by the Office of Certification at the Colorado Department of Regulatory Agencies have the
maximum opportunity to participate in the performance of contracts and subcontracts financed in whole
or in part with Federal funds provided under this agreement. In this regard, all participants or
contractors shall take all necessary and reasonable steps in accordance with the CDOT DBE program
(or a Local Agency DBE Program approved in advance by the State) to ensure that disadvantaged
business enterprises have the maximum opportunity to compete for and perform contracts. Recipients
and their contractors shall not discriminate on the basis of race, color, national origin, or sex in the
award and performance of CDOT assisted contracts.
SECTION 3 DBE Program.
The Local Agency (sub- recipient) shall be responsible for obtaining the Disadvantaged Business
Enterprise Program of the Colorado Department of Transportation, 1988, as amended, and shall
comply with the applicable provisions of the program. (If applicable).
A copy of the DBE Program is available from and will be mailed to the Local Agency upon request:
Business Programs Office
Colorado Department of Transportation
4201 East Arkansas Avenue, Room 287
Denver, Colorado 80222 -3400
Phone: (303) 757 -9234
revised 1/22/98 Required by 49 CFR Part 23.41
Page 1 of 1
35. EXHIBIT H — LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES
THE LOCAL AGENCY SHALL USE THESE PROCEDURES TO IMPLEMENT FEDERAL -AID
PROJECT AGREEMENTS WITH PROFESSIONAL CONSULTANT SERVICES
Title 23 Code of Federal Regulations (CFR) 172 applies to a federally funded local agency project
agreement administered by CDOT that involves professional consultant services. 23 CFR 172.1
states "The policies and procedures involve federally funded contracts for engineering and design
related services for projects subject to the provisions of 23 U.S.C. 112(a) and are issued to ensure
that a qualified consultant is obtained through an equitable selection process, that prescribed work
is properly accomplished in a timely manner, and at fair and reasonable cost" and according to 23
CFR 172.5 "Price shall not be used as a factor in the analysis and selection phase." Therefore, local
agencies must comply with these CFR requirements when obtaining professional consultant
services under a federally funded consultant contract administered by CDOT.
CDOT has formulated its procedures in Procedural Directive (P.D.) 400.1 and the related
operations guidebook titled "Obtaining Professional Consultant Services ". This directive and
guidebook incorporate requirements from both Federal and State regulations, i.e., 23 CFR 172 and
CRS §24 -30 -1401 et seq. Copies of the directive and the guidebook may be obtained upon request
from CDOT's Agreements and Consultant Management Unit. [Local agencies should have their own
written procedures on file for each method of procurement that addresses the items in 23 CFR 172].
Because the procedures and laws described in the Procedural Directive and the guidebook are
quite lengthy, the subsequent steps serve as a short-hand guide to CDOT procedures that a local
agency must follow in obtaining professional consultant services. This guidance follows the format
of 23 CFR 172. The steps are:
1. The contracting local agency shall document the need for obtaining professional services.
2. Prior to solicitation for consultant services, the contracting local agency shall develop a
detailed scope of work and a list of evaluation factors and their relative importance. The
evaluation factors are those identified in C.R.S. 24 -30 -1403. Also, a detailed cost estimate
should be prepared for use during negotiations.
3. The contracting agency must advertise for contracts in conformity with the requirements of
C.R.S. 24 -30 -1405. The public notice period, when such notice is required, is a minimum of
15 days prior to the selection of the three most qualified firms and the advertising should be
done in one or more daily newspapers of general circulation.
4. The request for consultant services should include the scope of work, the evaluation factors
and their relative importance, the method of payment, and the goal of 10% for Disadvantaged
Business Enterprise (DBE) participation as a minimum for the project.
5. The analysis and selection of the consultants shall be done in accordance with CRS §24 -30-
1403. This section of the regulation identifies the criteria to be used in the evaluation of CDOT
pre - qualified prime consultants and their team. It also shows which criteria are used to short-
list and to make a final selection.
The short-list is based on the following evaluation factors:
a. Qualifications,
b. Approach to the Work,
c. Ability to furnish professional services.
d. Anticipated design concepts, and
e. Alternative methods of approach for furnishing the professional services.
Page 1 of 2
Evaluation factors for final selection are the consultant's:
a. Abilities of their personnel,
b. Past performance,
c. Willingness to meet the time and budget requirement,
d. Location,
e. Current and projected work load,
f. Volume of previously awarded contracts, and
g. Involvement of minority consultants.
6. Once a consultant is selected, the local agency enters into negotiations with the consultant to
obtain a fair and reasonable price for the anticipated work. Pre - negotiation audits are
prepared for contracts expected to be greater than $50,000. Federal reimbursements for
costs are limited to those costs allowable under the cost principles of 48 CFR 31. Fixed fees
(profit) are determined with consideration given to size, complexity, duration, and degree of
risk involved in the work. Profit is in the range of six to 15 percent of the total direct and
indirect costs.
7. A qualified local agency employee shall be responsible and in charge of the Work to ensure
that the work being pursued is complete, accurate, and consistent with the terms, conditions,
and specifications of the contract. At the end of Work, the local agency prepares a
performance evaluation (a CDOT form is available) on the consultant.
8. Each of the steps listed above is to be documented in accordance with the provisions of 49
CFR 18.42, which provide for records to be kept at least three years from the date that the
local agency submits its final expenditure report. Records of projects under litigation shall be
kept at least three years after the case has been settled.
CRS § §24 -30 -1401 through 24 -30 -1408, 23 CFR Part 172, and P.D. 400.1, provide additional
details for complying with the preceeding eight (8) steps.
Page 2 of 2
36. EXHIBIT I - FEDERAL -AID CONTRACT PROVISIONS
FHWA -1273 Electronic version -- March 10, 1994
FHWA Form 1273
REQUIRED CONTRACT PROVISIONS
FEDERAL -AID CONSTRUCTION CONTRACTS
I. General 1 (Applicable to all Federal -aid construction contracts and to all related
II. Nondiscrimination 1 subcontracts of $10,000 or more.)
III. Non - segregated Facilities 3
IV.Payment of Predetermined Minimum Wage 3 1. Equal Employment Opportunity: Equal employment opportunity
V.Statements and Payrolls 6 (EEO) requirements not to discriminate and to take affirmative action to
VI.Record of Materials, Supplies, and Labor 6 assure equal opportunity as set forth under laws, executive orders,
VII. Subletting or Assigning the Contract 7 rules, regulations (28 CFR 35, 29 CFR 1630 and 41 CFR 60) and orders
VIII. Safety: Accident Prevention 7 of the Secretary of Labor as modified by the provisions prescribed
IX.False Statements Concerning Highway Projects 7 herein, and imposed pursuant to 23 U.S.C. 140 shall constitute the EEO
X. Implementation of Clean Air Act and Federal and specific affirmative action standards for the contractors project
Water Pollution Control Act 8 activities under this Agreement. The Equal Opportunity Construction
XI.Certification Regarding Debarment, Suspension, Contract Specifications set forth under 41 CFR 60 -4.3 and the
Ineligibility, and Voluntary Exclusion 8 provisions of the American Disabilities Act of 1990 (42 U.S.C. 12101 et
XII. Certification Regarding Use of Contract Funds for sec.) set forth under 28 CFR 35 and 29 CFR 1630 are incorporated by
Lobbying 9 reference in this Agreement. In the execution of this Agreement, the
contractor agrees to comply with the following minimum specific
ATTACHMENTS requirement activities of EEO:
A.Employment Preference for Appalachian Contracts a. The contractor will work with the State highway agency (SHA)
(included in Appalachian contracts only) and the Federal Government in carrying out EEO obligations and in their
review of his /her activities under the contract.
I. GENERAL
b. The contractor will accept as his operating policy the following
1. These contract provisions shall apply to all work performed on the statement:
contract by the contractors own organization and with the assistance of
workers under the contractors immediate superintendence and to all "It is the policy of this Company to assure that applicants are
work performed on the contract by piecework, station work, or by employed, and that employees are treated during employment,
subcontract. without regard to their race, religion, sex, color, national origin, age
or disability. Such action shall include: employment, upgrading,
2. Except as otherwise provided for in each section, the contractor demotion, or transfer; recruitment or recruitment advertising; layoff
shall insert in each subcontract all of the stipulations contained in these or termination; rates of pay or other forms of compensation; and
Required Contract Provisions, and further require their inclusion in any selection for training, including apprenticeship, pre- apprenticeship,
lower tier subcontract or purchase order that may in turn be made. The and /or on- the -job training."
Required Contract Provisions shall not be incorporated by reference in
any case. The prime contractor shall be responsible for compliance by 2. EEO Officer: The contractor will designate and make known to the
any subcontractor or lower tier subcontractor with these Required SHA contracting officers an EEO Officer who will have the responsibility
Contract Provisions. for and must be capable of effectively administering and promoting an
active contractor program of EEO and who must be assigned adequate
3. A breach of any of the stipulations contained in these Required authority and responsibility to do so.
Contract Provisions shall be sufficient grounds for termination of the
contract. 3. Dissemination of Policy: All members of the contractors staff
who are authorized to hire, supervise, promote, and discharge
4. A breach of the following clauses of the Required Contract employees, or who recommend such action, or who are substantially
Provisions may also be grounds for debarment as provided in 29 CFR involved in such action, will be made fully cognizant of, and will
5.12: implement, the contractor's EEO policy and contractual responsibilities
to provide EEO in each grade and classification of employment. To
Section I, paragraph 2; ensure that the above agreement will be met, the following actions will
Section IV, paragraphs 1 , 2, 3, 4, and 7; be taken as a minimum:
Section V, paragraphs 1 and 2a through 2g.
a. Periodic meetings of supervisory and personnel office
5. Disputes arising out of the labor standards provisions of Section IV employees will be conducted before the start of work and then not less
(except paragraph 5) and Section V of these Required Contract often than once every six months, at which time the contractor's EEO
Provisions shall not be subject to the general disputes clause of this policy and its implementation will be reviewed and explained. The
Agreement. Such disputes shall be resolved in accordance with the meetings will be conducted by the EEO Officer.
procedures of the U.S. Department of Labor (DOL) as set forth in 29
CFR 5, 6, and 7. Disputes within the meaning of this clause include b. All new supervisory or personnel office employees will be
disputes between the contractor (or any of its subcontractors) and the given a thorough indoctrination by the EEO Officer, covering all major
contracting agency, the DOL, or the contractor's employees or their aspects of the contractor's EEO obligations within thirty days following
representatives. their reporting for duty with the contractor.
6. Selection of Labor: During the performance of this Agreement, c. All personnel who are engaged in direct recruitment for the
the contractor shall not: project will be instructed by the EEO Officer in the contractor's
procedures for locating and hiring minority group employees.
a. discriminate against labor from any other State, possession, or
territory of the United States (except for employment preference for d. Notices and posters setting forth the contractor's EEO policy
Appalachian contracts, when applicable, as specified in Attachment A), will be placed in areas readily accessible to employees, applicants for
or employment and potential employees.
b employ convict labor for any purpose within the limits of the e. The contractor's EEO policy and the procedures to implement
project unless it is labor performed by convicts who are on parole, such policy will be brought to the attention of employees by means of
supervised release, or probation. meetings, employee handbooks, or other appropriate means.
II. NONDISCRIMINATION 4. Recruitment: When advertising for employees, the contractor will
include in all advertisements for employees the notation: "An Equal
Page 1 of 8 REQUIRED BY 23 CFR 633.102 --
Opportunity Employer." All such advertisements will be placed in either directly or through a contractor's association acting as agent will
publications having a large circulation among minority groups in the area include the procedures set forth below:
from which the project work force would normally be derived.
a. The contractor will use best efforts to develop, in cooperation
a. The contractor will, unless precluded by a valid bargaining with the unions, joint training programs aimed toward qualifying more
agreement, conduct systematic and direct recruitment through public minority group members and women for membership in the unions and
and private employee referral sources likely to yield qualified minority increasing the skills of minority group employees and women so that
group applicants. To meet this requirement, the contractor will identify they may qualify for higher paying employment.
sources of potential minority group employees, and establish with such
identified sources procedures whereby minority group applicants may be b. The contractor will use best efforts to incorporate an EEO
referred to the contractor for employment consideration. clause into each union agreement to the end that such union will be
contractually bound to refer applicants without regard to their race, color,
b. In the event the contractor has a valid bargaining agreement religion, sex, national origin, age or disability.
providing for exclusive hiring hall referrals, he is expected to observe the
provisions of that agreement to the extent that the system permits the c. The contractor is to obtain information as to the referral
contractor's compliance with EEO contract provisions. (The DOL has practices and policies of the labor union except that to the extent such
held that where implementations of such agreements have the effect of information is within the exclusive possession of the labor union and
discriminating against minorities or women, or obligates the contractor to such labor union refuses to furnish such information to the contractor,
do the same, such implementation violates Executive Order 11246, as the contractor shall so certify to the SHA and shall set forth what efforts
amended.) have been made to obtain such information.
c. The contractor will encourage his present employees to refer d. In the event the union is unable to provide the contractor with a
minority group applicants for employment. Information and procedures reasonable flow of minority and women referrals within the time limit set
with regard to referring minority group applicants will be discussed with forth in the collective bargaining agreement, the contractor will, through
employees. independent recruitment efforts, fill the employment vacancies without
regard to race, color, religion, sex, national origin, age or disability;
5. Personnel Actions: Wages, working conditions, and employee making full efforts to obtain qualified and /or qualifiable minority group
benefits shall be established and administered, and personnel actions of persons and women. (The DOL has held that it shall be no excuse that
every type, including hiring, upgrading, promotion, transfer, demotion, the union with which the contractor has a collective bargaining
layoff, and termination, shall be taken without regard to race, color, agreement providing for exclusive referral failed to refer minority
religion, sex, national- origin, age or disability. The following procedures employees.) In the event the union referral practice prevents the
shall be followed: contractor from meeting the obligations pursuant to Executive Order
11246, as amended, and these special provisions, such contractor shall
a. The contractor will conduct periodic inspections of project sites immediately notify the SHA.
to insure that working conditions and employee facilities do not indicate
discriminatory treatment of project site personnel. 8. Selection of Subcontractors, Procurement of Materials and
Leasing of Equipment: The contractor shall not discriminate on the
b. The contractor will periodically evaluate the spread of wages grounds of race, color, religion, sex, national origin, age or disability in
paid within each classification to determine any evidence of the selection and retention of subcontractors, including procurement of
discriminatory wage practices. materials and leases of equipment.
c. The contractor will periodically review selected personnel a. The contractor shall notify all potential subcontractors and
actions in depth to determine whether there is evidence of discrimi- suppliers of his /her EEO obligations under this Agreement.
nation. Where evidence is found, the contractor will promptly take
corrective action. If the review indicates that the discrimination may b. Disadvantaged business enterprises (DBE), as defined in 49
extend beyond the actions reviewed, such corrective action shall include CFR 23, shall have equal opportunity to compete for and perform
all affected persons. subcontracts which the contractor enters into pursuant to this
Agreement. The contractor will use his best efforts to solicit bids from
d. The contractor will promptly investigate all complaints of alleged and to utilize DBE subcontractors or subcontractors with meaningful
discrimination made to the contractor in connection with his obligations minority group and female representation among their employees.
under this Agreement, will attempt to resolve such complaints, and will Contractors shall obtain lists of DBE construction firms from SHA
take appropriate corrective action within a. reasonable time. If the personnel.
investigation indicates that the discrimination may affect persons other
than the complainant, such corrective action shall include such other c. The contractor will use his best efforts to ensure subcontractor
persons. Upon completion of each investigation, the contractor will compliance with their EEO obligations.
inform every complainant of all of his avenues of appeal.
9. Records and Reports: The contractor shall keep such records as
6. Training and Promotion: necessary to document compliance with the EEO requirements. Such
records shall be retained for a period of three years following completion
a. The contractor will assist in locating, qualifying, and increasing of the contract work and shall be available at reasonable times and
the skills of minority group and women employees, and applicants for places for inspection by authorized representatives of the SHA and the
employment. FH W A.
b. Consistent with the contractor's work force requirements and a. The records kept by the contractor shall document the
as permissible under Federal and State regulations, the contractor shall following:
make full use of training programs, i.e., apprenticeship, and on- the -job
training programs for the geographical area of contract performance. (1) The number of minority and non - minority group members
Where feasible, 25 percent of apprentices or trainees in each occupation and women employed in each work classification on the project;
shall be in their first year of apprenticeship or training. In the event a
special provision for training is provided under this Agreement, this (2) The progress and efforts being made in cooperation with
subparagraph will be superseded as indicated in the special provision. unions, when applicable, to increase employment opportunities for
minorities and women;
c. The contractor will advise employees and applicants for
employment of available training programs and entrance requirements (3) The progress and efforts being made in locating, hiring,
for each. training, qualifying, and upgrading minority and female employees; and
d. The contractor will periodically review the training and (4) The progress and efforts being made in securing the
promotion potential of minority group and women employees and will services of DBE subcontractors or subcontractors with meaningful
encourage eligible employees to apply for such training and promotion. minority and female representation among their employees.
7. Unions: If the contractor relies in whole or in part upon unions as a b. The contractors will submit an annual report to the SHA each
source of employees, the contractor will use his /her best efforts to obtain July for the duration of the project, indicating the number of minority,
the cooperation of such unions to increase opportunities for minority women, and non - minority group employees currently engaged in each
groups and women within the unions, and to effect referrals by such work classification required by the contract work. This information is to
unions of minority and female employees. Actions by the contractor
Page 2 of 8 REQUIRED BY 23 CFR 633.102 --
be reported on Form FHWA -1391. If on -the job training is being required c. All rulings and interpretations of the Davis -Bacon Act and
by special provision, the contractor will be required to collect and report related acts contained in 29 CFR 1, 3, and 5 are herein incorporated by
training data. reference in this Agreement.
III. NONSEGREGATED FACILITIES 2. Classification:
(Applicable to all Federal -aid construction contracts and to all related a. The SHA contracting officer shall require that any class of
subcontracts of $10,000 or more.) laborers or mechanics employed under the contract, which is not listed
in the wage determination, shall be classified in conformance with the
a. By submission of this bid, the execution of this Agreement or wage determination.
subcontract, or the consummation of this material supply agreement or
purchase order, as appropriate, the bidder, Federal -aid construction b. The contracting officer shall approve an additional
contractor, subcontractor, material supplier, or vendor, as appropriate, classification, wage rate and fringe benefits only when the following
certifies that the firm does not maintain or provide for its employees any criteria have been met:
segregated facilities at any of its establishments, and that the firm does
not permit its employees to perform their services at any location, under (1) the work to be performed by the additional classification
its control, where segregated facilities are maintained. The firm agrees requested is not performed by a classification in the wage determination;
that a breach of this certification is a violation of the EEO provisions of
this Agreement. The firm further certifies that no employee will be denied (2) the additional classification is utilized in the area by the
access to adequate facilities on the basis of sex or disability. construction industry;
b. As used in this certification, the term "segregated facilities" (3) the proposed wage rate, including any bona fide fringe
means any waiting rooms, work areas, restrooms and washrooms, benefits, bears a reasonable relationship to the wage rates contained in
restaurants and other eating areas, timeclocks, locker rooms, and other the wage determination; and
storage or dressing areas, parking lots, drinking fountains, recreation or
entertainment areas, transportation, and housing facilities provided for (4) with respect to helpers, when such a classification
employees which are segregated by explicit directive, or are, in fact, prevails in the area in which the work is performed.
segregated on the basis of race, color, religion, national origin, age or
disability, because of habit, local custom, or otherwise. The only c. If the contractor or subcontractors, as appropriate, the laborers
exception will be for the disabled when the demands for accessibility and mechanics (if known) to be employed in the additional classification
override (e.g. disabled parking). or their representatives, and the contracting officer agree on the
classification and wage rate (including the amount designated for fringe
c. The contractor agrees that it has obtained or will obtain identical benefits where appropriate), a report of the action taken shall be sent by
certification from proposed subcontractors or material suppliers prior to the contracting officer to the DOL, Administrator of the Wage and Hour
award of subcontracts or consummation of material supply agreements Division, Employment Standards Administration, Washington, D.C.
of $10,000 or more and that it will retain such certifications in its files. 20210. The Wage and Hour Administrator, or an authorized representa-
tive, will approve, modify, or disapprove every additional classification
IV. PAYMENT OF PREDETERMINED MINIMUM WAGE action within 30 days of receipt and so advise the contracting officer or
will notify the contracting officer within the 30 -day period that additional
(Applicable to all Federal -aid construction contracts exceeding time is necessary.
$2,000 and to all related subcontracts, except for projects located on
roadways classified as local roads or rural minor collectors, which are d. In the event the contractor or subcontractors, as appropriate,
exempt.) the laborers or mechanics to be employed in the additional classification
or their representatives, and the contracting officer do not agree on the
1. General: proposed classification and wage rate (including the amount designated
for fringe benefits, where appropriate), the contracting officer shall refer
a. All mechanics and laborers employed or working upon the site the questions, including the views of all interested parties and the
of the work will be paid unconditionally and not less often than once a recommendation of the contracting officer, to the Wage and Hour
week and without subsequent deduction or rebate on any account Administrator for determination. Said Administrator, or an authorized
[except such payroll deductions as are permitted by regulations (29 CFR representative, will issue a determination within 30 days of receipt and
3) issued by the Secretary of Labor under the Copeland Act (40 U.S.C. so advise the contracting officer or will notify the contracting officer
276c)] the full amounts of wages and bona fide fringe benefits (or cash within the 30 -day period that additional time is necessary
equivalents thereof) due at time of payment. The payment shall be
computed at wage rates not less than those contained in the wage e. The wage rate (including fringe benefits where appropriate)
determination of the Secretary of Labor (hereinafter "the wage determi- determined pursuant to paragraph 2c or 2d of this Section IV shall be
nation ") which is attached hereto and made a part hereof, regardless of paid to all workers performing work in the additional classification from
any contractual relationship which may be alleged to exist between the the first day on which work is performed in the classification.
contractor or its subcontractors and such laborers and mechanics. The
wage determination (including any additional classifications and wage 3. Payment of Fringe Benefits:
rates conformed under paragraph 2 of this Section IV and the DOL
poster (WH -1321) or Form FHWA -1495) shall be posted at all times by a. Whenever the minimum wage rate prescribed in the contract
the contractor and its subcontractors at the site of the work in a for a class of laborers or mechanics includes a fringe benefit which is not
prominent and accessible place where it can be easily seen by the expressed as an hourly rate, the contractor or subcontractors, as
workers. For the purpose of this Section, contributions made or costs appropriate, shall either pay the benefit as stated in the wage
reasonably anticipated for bona fide fringe benefits under Section 1(b)(2) determination or shall pay another bona fide fringe benefit or an hourly
of the Davis -Bacon Act (40 U.S.C. 276a) on behalf of laborers or case equivalent thereof.
mechanics are considered wages paid to such laborers or mechanics,
subject to the provisions of Section IV, paragraph 3b, hereof. Also, for b. If the contractor or subcontractor, as appropriate, does not
the purpose of this Section, regular contributions made or costs incurred make payments to a trustee or other third person, he /she may consider
for more than a weekly period (but not less often than quarterly) under as a part of the wages of any laborer or mechanic the amount of any
plans, funds, or programs, which cover the particular weekly period, are costs reasonably anticipated in providing bona fide fringe benefits under
deemed to be constructively made or incurred during such weekly a plan or program, provided, that the Secretary of Labor has found, upon
period. Such laborers and mechanics shall be paid the appropriate wage the written request of the contractor, that the applicable standards of the
rate and fringe benefits on the wage determination for the classification Davis -Bacon Act have been met. The Secretary of Labor may require
of work actually performed, without regard to skill, except as provided in the contractor to set aside in a separate account assets for the meeting
paragraphs 4 and 5 of this Section IV. of obligations under the plan or program.
b. Laborers or mechanics performing work in more than one 4. Apprentices and Trainees (Programs of the U.S. DOL) and
classification may be compensated at the rate specified for each Helpers:
classification for the time actually worked therein, provided, that the
employer's payroll records accurately set forth the time spent in each a. Apprentices:
classification in which work is performed.
(1) Apprentices will be permitted to work at less than the
predetermined rate for the work they performed when they are employed
Page 3 of 8 REQUIRED BY 23 CFR 633.102 --
pursuant to and individually registered in a bona tide apprenticeship
program registered with the DOL, Employment and Training c. Helpers:
Administration, Bureau of Apprenticeship and Training, or with a State
apprenticeship agency recognized by the Bureau, or if a person is Helpers will be permitted to work on a project if the helper
employed in his /her first 90 days of probationary employment as an classification is specified and defined on the applicable wage determine-
apprentice in such an apprenticeship program, who is not individually tion or is approved pursuant to the conformance procedure set forth in
registered in the program, but who has been certified by the Bureau of Section IV.2. Any worker listed on a payroll at a helper wage rate, who is
Apprenticeship and Training or a State apprenticeship agency (where not a helper under a approved definition, shall be paid not less than the
appropriate) to be eligible for probationary employment as an applicable wage rate on the wage determination for the classification of
apprentice. work actually performed.
(2) The allowable ratio of apprentices to journeyman -level 5. Apprentices and Trainees (Programs of the U.S. DOT):
employees on the job site in any craft classification shall not be greater
than the ratio permitted to the contractor as to the entire work force Apprentices and trainees working under apprenticeship and skill
under the registered program. Any employee listed on a payroll at an training programs which have been certified by the Secretary of
apprentice wage rate, who is not registered or otherwise employed as Transportation as promoting EEO in connection with Federal -aid
stated above, shall be paid not less than the applicable wage rate listed highway construction programs are not subject to the requirements of
in the wage determination for the classification of work actually paragraph 4 of this Section IV. The straight time hourly wage rates for
performed. In addition, any apprentice performing work on the job site in apprentices and trainees under such programs will be established by the
excess of the ratio permitted under the registered program shall be paid particular programs. The ratio of apprentices and trainees to journeymen
not less than the applicable wage rate on the wage determination for the shall not be greater than permitted by the terms of the particular
work actually performed. Where a contractor or subcontractor is program.
performing construction on a project in a locality other than that in which
its program is registered, the ratios and wage rates (expressed in 6. Withholding:
percentages of the journeyman -level hourly rate) specified in the
contractor's or subcontractor's registered program shall be observed. The SHA shall upon its own action or upon written request of an
authorized representative of the DOL withhold, or cause to be withheld,
(3) Every apprentice must be paid at not less than the rate from the contractor or subcontractor under this Agreement or any other
specified in the registered program for the apprentice's level of progress, Federal contract with the same prime contractor, or any other Federally -
expressed as a percentage of the journeyman -level hourly rate specified assisted contract subject to Davis -Bacon prevailing wage requirements
in the applicable wage determination. Apprentices shall be paid fringe which is held by the same prime contractor, as much of the accrued
benefits in accordance with the provisions of the apprenticeship payments or advances as may be considered necessary to pay laborers
program. If the apprenticeship program does not specify fringe benefits, and mechanics, including apprentices, trainees, and helpers, employed
apprentices must be paid the full amount of fringe benefits listed on the by the contractor or any subcontractor the full amount of wages required
wage determination for the applicable classification. If the Administrator by the contract. In the event of failure to pay any laborer or mechanic,
for the Wage and Hour Division determines that a different practice including any apprentice, trainee, or helper, employed or working on the
prevails for the applicable apprentice classification, fringes shall be paid site of the work, all or part of the wages required by the contract, the
in accordance with that determination. SHA contracting officer may, after written notice to the contractor, take
such action as may be necessary to cause the suspension of any further
(4) In the event the Bureau of Apprenticeship and Training, payment, advance, or guarantee of funds until such violations have
or a State apprenticeship agency recognized by the Bureau, withdraws ceased.
approval of an apprenticeship program, the contractor or subcontractor
will no longer be permitted to utilize apprentices at less than the 7. Overtime Requirements:
applicable predetermined rate for the comparable work performed by
regular employees until an acceptable program is approved. No contractor or subcontractor contracting for any part of the
contract work which may require or involve the employment of laborers,
b. Trainees: mechanics, watchmen, or guards (including apprentices, trainees, and
helpers described in paragraphs 4 and 5 above) shall require or permit
(1) Except as provided in 29 CFR 5.16, trainees will not be any laborer, mechanic, watchman, or guard in any workweek in which
permitted to work at less than the predetermined rate for the work he /she is employed on such work, to work in excess of 40 hours in such
performed unless they are employed pursuant to and individually workweek unless such laborer, mechanic, watchman, or guard receives
registered in a program which has received prior approval, evidenced by compensation at a rate not less than one - and - one -half times his /her
formal certification by the DOL, Employment and Training basic rate of pay for all hours worked in excess of 40 hours in such
Administration. workweek.
(2) The ratio of trainees to journeyman -level employees on 8. Violation:
the job site shall not be greater than permitted under the plan approved
by the Employment and Training Administration. Any employee listed on Liability for Unpaid Wages; Liquidated Damages: In the event of any
the payroll at a trainee rate who is not registered and participating in a violation of the clause set forth in paragraph 7 above, the contractor and
training plan approved by the Employment and Training Administration any subcontractor responsible thereof shall be liable to the affected
shall be paid not less than the applicable wage rate on the wage employee for his /her unpaid wages. In addition, such contractor and
determination for the classification of work actually performed. In subcontractor shall be liable to the United States (in the case of work
addition, any trainee performing work on the job site in excess of the done under contract for the District of Columbia or a territory, to such
ratio permitted under the registered program shall be paid not less than District or to such territory) for liquidated damages. Such liquidated
the applicable wage rate on the wage determination for the work actually damages shall be computed with respect to each individual laborer,
performed. mechanic, watchman, or guard employed in violation of the clause set
forth in paragraph 7, in the sum of $10 for each calendar day on which
(3) Every trainee must be paid at not less than the rate such employee was required or permitted to work in excess of the
specified in the approved program for his /her level of progress, standard work week of 40 hours without payment of the overtime wages
expressed as a percentage of the journeyman -level hourly rate specified required by the clause set forth in paragraph 7.
in the applicable wage determination. Trainees shall be paid fringe
benefits in accordance with the provisions of the trainee program. If the 9. Withholding for Unpaid Wages and Liquidated Damages:
trainee program does not mention fringe benefits, trainees shall be paid
the full amount of fringe benefits listed on the wage determination unless The SHA shall upon its own action or upon written request of any
the Administrator of the Wage and Hour Division determines that there is authorized representative of the DOL withhold, or cause to be withheld,
an apprenticeship program associated with the corresponding from any monies payable on account of work performed by the
journeyman -level wage rate on the wage determination which provides contractor or subcontractor under any such contract or any other
for less than full fringe benefits for apprentices, in which case such Federal contract with the same prime contractor, or any other Federally -
trainees shall receive the same fringe benefits as apprentices. assisted contract subject to the Contract Work Hours and Safety
Standards Act, which is held by the same prime contractor, such sums
(4) In the event the Employment and Training Administration as may be determined to be necessary to satisfy any liabilities of such
withdraws approval of a training program, the contractor or contractor or subcontractor for unpaid wages and liquidated damages as
subcontractor will no longer be permitted to utilize trainees at less than provided in the clause set forth in paragraph 8 above.
the applicable predetermined rate for the work performed until an
acceptable program is approved.
Page 4 of 8 REQUIRED BY 23 CFR 633.102 --
V. STATEMENTS AND PAYROLLS f. The falsification of any of the above certifications may subject
the contractor to civil or criminal prosecution under 18 U.S.C. 1001 and
(Applicable to all Federal -aid construction contracts exceeding $2,000 31 U.S.C. 231.
and to all related subcontracts, except for projects located on roadways
classified as local roads or rural collectors, which are exempt.) g. The contractor or subcontractor shall make the records
required under paragraph 2b of this Section V available for inspection,
1. Compliance with Copeland Regulations (29 CFR 3): copying, or transcription by authorized representatives of the SHA, the
FHWA, or the DOL, and shall permit such representatives to interview
The contractor shall comply with the Copeland Regulations of the employees during working hours on the job. If the contractor or
Secretary of Labor which are herein incorporated by reference. subcontractor fails to submit the required records or to make them
available, the SHA, the FHWA, the DOL, or all may, after written notice
2. Payrolls and Payroll Records: to the contractor, sponsor, applicant, or owner, take such actions as may
be necessary to cause the suspension of any further payment, advance,
a. Payrolls and basic records relating thereto shall be or guarantee of funds. Furthermore, failure to submit the required
maintained by the contractor and each subcontractor during the course records upon request or to make such records available may be grounds
of the work and preserved for a period of 3 years from the date of for debarment action pursuant to 29 CFR 5.12.
completion of the contract for at laborers, mechanics, apprentices,
trainees, watchmen, helpers, and guards working at the site of the work. VI. RECORD OF MATERIALS, SUPPLIES, AND LABOR
b. The payroll records shall contain the name, social security 1. On all Federal -aid contracts on the National Highway System,
number, and address of each such employee; his or her correct except those which provide solely for the installation of protective
classification; hourly rates of wages paid (including rates of contributions devices at railroad grade crossings, those which are constructed on a
or costs anticipated for bona fide fringe benefits or cash equivalent force account or direct labor basis, highway beautification contracts, and
thereof the types described in Section 1(b)(2)(B) of the Davis Bacon contracts for which the total final construction cost for roadway and
Act); daily and weekly number of hours worked; deductions made; and bridge is less than $1,000,000 (23 CFR 635) the contractor shall:
actual wages paid. In addition, for Appalachian contracts, the payroll
records shall contain a notation indicating whether the employee does, a. Become familiar with the list of specific materials and
or does not, normally reside in the labor area as defined in Attachment supplies contained in Form FHWA -47, "Statement of Materials and
A, paragraph 1. Whenever the Secretary of Labor, pursuant to Section Labor Used by Contractor of Highway Construction Involving Federal
IV, paragraph 3b, has found that the wages of any laborer or mechanic Funds," prior to the commencement of work under this Agreement.
include the amount of any costs reasonably anticipated in providing
benefits under a plan or program described in Section 1(b)(2)(6) of the b. Maintain a record of the total cost of all materials and
Davis Bacon Act, the contractor and each subcontractor shall maintain supplies purchased for and incorporated in the work, and also of the
records which show that the commitment to provide such benefits is quantities of those specific materials and supplies listed on Form FHWA-
enforceable, that the plan or program is financially responsible, that the 47, and in the units shown on Form FHWA -47.
plan or program has been communicated in writing to the laborers or
mechanics affected, and show the cost anticipated or the actual cost c. Furnish, upon the completion of the contract, to the SHA
incurred in providing benefits. Contractors or subcontractors employing resident engineer on Form FHWA -47 together with the data required in
apprentices or trainees under approved programs shall maintain written paragraph 1 b relative to materials and supplies, a final labor summary of
evidence of the registration of apprentices and trainees, and ratios and all contract work indicating the total hours worked and the total amount
wage rates prescribed in the applicable programs. earned.
c. Each contractor and subcontractor shall furnish, each week in 2. At the prime contractor's option, either a single report covering all
which any contract work is performed, to the SHA resident engineer a contract work or separate reports for the contractor and for each
payroll of wages paid each of its employees (including apprentices, subcontract shall be submitted.
trainees, and helpers, described in Section IV, paragraphs 4 and 5, and
watchmen and guards engaged on work during the preceding weekly VII. SUBLETTING OR ASSIGNING THE CONTRACT
payroll period). The payroll submitted shall set out accurately and
completely all of the information required to be maintained under 1. The contractor shall perform with its own organization contract
paragraph 2b of this Section V. This information may be submitted in work amounting to not less than 30 percent (or a greater percentage if
any form desired. Optional Form WH -347 is available for this purpose specified elsewhere in the contract) of the total original contract price,
and may be purchased from the Superintendent of Documents (Federal excluding any specialty items designated by the State. Specialty items
stock number 029- 005 - 0014 -1), U.S. Government Printing Office, may be performed by subcontract and the amount of any such specialty
Washington, D.C. 20402. The prime contractor is responsible for the items performed may be deducted from the total original contract price
submission of copies of payrolls by all subcontractors. before computing the amount of work required to be performed by the
contractor's own organization (23 CFR 635).
d. Each payroll submitted shall be accompanied by a "Statement
of Compliance," signed by the contractor or subcontractor or his /her a. "Its own organization" shall be construed to include only
agent who pays or supervises the payment of the persons employed workers employed and paid directly by the prime contractor and
under the contract and shall certify the following: equipment owned or rented by the prime contractor, with or without
operators. Such term does not include employees or equipment of a
(1) that the payroll for the payroll period contains the subcontractor, assignee, or agent of the prime contractor.
information required to be maintained under paragraph 2b of this
Section V and that such information is correct and complete; b. "Specialty Items" shall be construed to be limited to work
that requires highly specialized knowledge, abilities, or equipment not
(2) that such laborer or mechanic (including each helper, ordinarily available in the type of contracting organizations qualified and
apprentice, and trainee) employed on the contract during the payroll expected to bid on the contract as a whole and in general are to be
period has been paid the full weekly wages earned, without rebate, limited to minor components of the overall contract.
either directly or indirectly, and that no deductions have been made
either directly or indirectly from the full wages earned, other than 2. The contract amount upon which the requirements set forth in
permissible deductions as set forth in the Regulations, 29 CFR 3; paragraph 1 of Section VII is computed includes the cost of material and
manufactured products which are to be purchased or produced by the
(3) that each laborer or mechanic has been paid not less that contractor under the contract provisions.
the applicable wage rate and fringe benefits or cash equivalent for the
classification of worked performed, as specified in the applicable wage 3. The contractor shall furnish (a) a competent superintendent or
determination incorporated into the contract. supervisor who is employed by the firm, has full authority to direct
performance of the work in accordance with the contract requirements,
and is in charge of all construction operations (regardless of who
e. The weekly submission of a properly executed certification set performs the work) and (b) such other of its own organizational
forth on the reverse side of Optional Form WH -347 shall satisfy the resources (supervision, management, and engineering services) as the
requirement for submission of the "Statement of Compliance" required SHA contracting officer determines is necessary to assure the
by paragraph 2d of this Section V. performance of the contract.
4. No portion of the contract shall be sublet, assigned or otherwise
Page 5 of 8 REQUIRED BY 23 CFR 633.102 --
disposed of except with the written consent of the SHA contracting
officer, or authorized representative, and such consent when given shall By submission of this bid or the execution of this Agreement, or
not be construed to relieve the contractor of any responsibility for the subcontract, as appropriate, the bidder, Federal -aid construction
fulfillment of the contract. Written consent will be given only after the contractor, or subcontractor, as appropriate, will be deemed to have
SHA has assured that each subcontract is evidenced in writing and that stipulated as follows:
it contains all pertinent provisions and requirements of the prime
contract. 1. That any facility that is or will be utilized in the performance of this
Agreement, unless such contract is exempt under the Clean Air Act, as
VIII. SAFETY: ACCIDENT PREVENTION amended (42 U.S.C. 1857 et sec.., as amended by Pub.L. 91 -604), and
under the Federal Water Pollution Control Act, as amended (33 U.S.C.
1. In the performance of this Agreement the contractor shall comply 1251 et o ., as amended by Pub.L. 92 -500), Executive Order 11738,
with all applicable Federal, State, and local laws governing safety, and regulations in implementation thereof (40 CFR 15) is not listed, on
health, and sanitation (23 CFR 635). The contractor shall provide all the date of contract award, on the U.S. Environmental Protection
safeguards, safety devices and protective equipment and take any other Agency (EPA) List of Violating Facilities pursuant to 40 CFR 15.20.
needed actions as it determines, or as the SHA contracting officer may
determine, to be reasonably necessary to protect the life and health of 2. That the firm agrees to comply and remain in compliance with all the
employees on the job and the safety of the public and to protect property requirements of Section 114 of the Clean Air Act and Section 308 of the
in connection with the performance of the work covered by the contract. Federal Water Pollution Control Act and all regulations and guidelines
listed thereunder.
2. It is a condition of this Agreement, and shall be made a condition of
each subcontract, which the contractor enters into pursuant to this 3. That the firm shall promptly notify the SHA of the receipt of any
Agreement, that the contractor and any subcontractor shall not permit communication from the Director, Office of Federal Activities, EPA,
any employee, in performance of the contract, to work in surroundings or indicating that a facility that is or will be utilized for the contract is under
under conditions which are unsanitary, hazardous or dangerous to consideration to be listed on the EPA List of Violating Facilities.
his /her health or safety, as determined under construction safety and
health standards (29 CFR 1926) promulgated by the Secretary of Labor, 4. That the firm agrees to include or cause to be included the
in accordance with Section 107 of the Contract Work Hours and Safety requirements of paragraph 1 through 4 of this Section X in every
Standards Act (40 U.S.C. 333). nonexempt subcontract, and further agrees to take such action as the
government may direct as a means of enforcing such requirements.
3. Pursuant to 29 CFR 1926.3, it is a condition of this Agreement that
the Secretary of Labor or authorized representative thereof, shall have XI. CERTIFICATION REGARDING DEBARMENT, SUSPENSION,
right of entry to any site of contract performance to inspect or investigate INELIGIBILITY AND VOLUNTARY EXCLUSION
the matter of compliance with the construction safety and health
standards and to carry out the duties of the Secretary under Section 107 1. Instructions for Certification - Primary Covered Transactions:
of the Contract Work Hours and Safety Standards Act (40 U.S.C. 333).
(Applicable to all Federal -aid contracts - 49 CFR 29)
IX. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS
a. By signing and submitting this proposal, the prospective
In order to assure high quality and durable construction in conformity primary participant is providing the certification set out below.
with approved plans and specifications and a high degree of reliability on
statements and representations made by engineers, contractors, suppli- b. The inability of a person to provide the certification set out
ers, and workers on Federal -aid highway projects, it is essential that all below will not necessarily result in denial of participation in this covered
persons concerned with the project perform their functions as carefully, transaction. The prospective participant shall submit an explanation of
thoroughly, and honestly as possible. Willful falsification, distortion, or why it cannot provide the certification set out below. The certification or
misrepresentation with respect to any facts related to the project is a explanation will be considered in connection with the department or
violation of Federal law. To prevent any misunderstanding regarding the agency's determination whether to enter into this transaction. However,
seriousness of these and similar acts, the following notice shall be failure of the prospective primary participant to furnish a certification or
posted on each Federal -aid highway project (23 CFR 635) in one or an explanation shall disqualify such a person from participation in this
more places where it is readily available to all persons concerned with transaction.
the project:
c. The certification in this clause is a material representation of
NOTICE TO ALL PERSONNEL ENGAGED ON FEDERAL -AID fact upon which reliance was placed when the department or agency
HIGHWAY PROJECTS determined to enter into this transaction. If it is later determined that the
prospective primary participant knowingly rendered an erroneous
18 U.S.C. 1020 reads as follows: certification, in addition to other remedies available to the Federal
Government, the department or agency may terminate this transaction
"Whoever, being an officer, agent, or employee of the United States, for cause of default.
or of any State or Territory, or whoever, whether a person, association,
firm, or corporation, knowingly makes any false statement, false d. The prospective primary participant shall provide immediate
representation, or false report as to the character, quality, quantity, or written notice to the department or agency to whom this proposal is
cost of the material used or to be used, or the quantity or quality of the submitted if any time the prospective primary participant learns that its
work performed or to be performed, or the cost thereof in connection certification was erroneous when submitted or has become erroneous
with the submission of plans, maps, specifications, contracts, or costs of by reason of changed circumstances.
construction on any highway or related project submitted for approval to
the Secretary of Transportation; or e. The terms "covered transaction," "debarred," "suspended,"
"ineligible," "lower tier covered transaction," "participant," "person,"
Whoever knowingly makes any false statement, false representation, "primary covered transaction," "principal," "proposal," and "voluntarily
false report or false claim with respect to the character, quality, quantity, excluded," as used in this clause, have the meanings set out in the
or cost of any work performed or to be performed, or materials furnished Definitions and Coverage sections of rules implementing Executive
or to be furnished, in connection with the construction of any highway or Order 12549. You may contact the department or agency to which this
related project approved by the Secretary of Transportation; or proposal is submitted for assistance in obtaining a copy of those
regulations.
Whoever knowingly makes any false statement or false
representation as to material fact in any statement, certificate, or report f. The prospective primary participant agrees by submitting this
submitted pursuant to provisions of the Federal -aid Roads Act approved proposal that, should the proposed covered transaction be entered into,
July 1, 1916, (39 Stat. 355), as amended and supplemented; it shall not knowingly enter into any lower tier covered transaction with a
person who is debarred, suspended, declared ineligible, or voluntarily
Shall be fined not more that $10,000 or imprisoned not more than 5 excluded from participation in this covered transaction, unless
years or both." authorized by the department or agency entering into this transaction.
X. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL g. The prospective primary participant further agrees by
WATER POLLUTION CONTROL ACT submitting this proposal that it will include the clause titled "Certification
Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion -
(Applicable to all Federal -aid construction contracts and to all related Lower Tier Covered Transaction," provided by the department or agency
subcontracts of $100,000 or more.)
Page 6 of 8 REQUIRED BY 23 CFR 633.102 --
entering into this covered transaction, without modification, in all lower c. The prospective lower tier participant shall provide immediate
tier covered transactions and in all solicitations for lower tier covered written notice to the person to which this proposal is submitted if at any
transactions. time the prospective lower tier participant learns that its certification was
erroneous by reason of changed circumstances.
h. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered d. The terms "covered transaction," "debarred," "suspended,"
transaction that is not debarred, suspended, ineligible, or voluntarily "ineligible," "primary covered transaction," "participant," "person,"
excluded from the covered transaction, unless it knows that the "principal," "proposal," and "voluntarily excluded," as used in this clause,
certification is erroneous. A participant may decide the method and have the meanings set out in the Definitions and Coverage sections of
frequency by which it determines the eligibility of its principals. Each rules implementing Executive Order 12549. You may contact the person
participant may, but is not required to, check the non - procurement to which this proposal is submitted for assistance in obtaining a copy of
portion of the "Lists of Parties Excluded From Federal Procurement or those regulations.
Non - procurement Programs" (Non - procurement List) which is compiled
by the General Services Administration. e. The prospective lower tier participant agrees by submitting this
proposal that, should the proposed covered transaction be entered into,
I. Nothing contained in the foregoing shall be construed to require it shall not knowingly enter into any lower tier covered transaction with a
establishment of a system of records in order to render in good faith the person who is debarred, suspended, declared ineligible, or voluntarily
certification required by this clause. The knowledge and information of excluded from participation in this covered transaction, unless
participant is not required to exceed that which is normally possessed by authorized by the department or agency with which this transaction
a prudent person in the ordinary course of business dealings. originated.
j. Except for transactions authorized under paragraph f of these 1. The prospective lower tier participant further agrees by
instructions, if a participant in a covered transaction knowingly enters submitting this proposal that it will include this clause titled "Certification
into a lower tier covered transaction with a person who is suspended, Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion -
debarred, ineligible, or voluntarily excluded from participation in this Lower Tier Covered Transaction," without modification, in all lower tier
transaction, in addition to other remedies available to the Federal covered transactions and in all solicitations for lower tier covered
Government, the department or agency may terminate this transaction transactions.
for cause or default.
g. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that is not debarred, suspended, ineligible, or voluntarily
excluded from the covered transaction, unless it knows that the
Certification Regarding Debarment, Suspension, Ineligibility and certification is erroneous. A participant may decide the method and
Voluntary Exclusion -- Primary Covered Transactions frequency by which it determines the eligibility of its principals. Each
participant may, but is not required to, check the Non - procurement List.
1. The prospective primary participant certifies to the best of its
knowledge and belief, that it and its principals: h. Nothing contained in the foregoing shall be construed to
require establishment of a system of records in order to render in good
a. Are not presently debarred, suspended, proposed for faith the certification required by this clause. The knowledge and
debarment, declared ineligible, or voluntarily excluded from covered information of participant is not required to exceed that which is normally
transactions by any Federal department or agency; possessed by a prudent person in the ordinary course of business
dealings.
b. Have not within a 3 -year period preceding this proposal been
convicted of or had a civil judgment rendered against them for I. Except for transactions authorized under paragraph e of these
commission of fraud or a criminal offense in connection with obtaining, instructions, if a participant in a covered transaction knowingly enters
attempting to obtain, or performing a public (Federal, State or local) into a lower tier covered transaction with a person who is suspended,
transaction or contract under a public transaction; violation of Federal or debarred, ineligible, or voluntarily excluded from participation in this
State antitrust statutes or commission of embezzlement, theft, forgery, transaction, in addition to other remedies available to the Federal
bribery, falsification or destruction of records, making false statements, Government, the department or agency with which this transaction
or receiving stolen property; originated may pursue available remedies, including suspension and /or
debarment.
c. Are not presently indicted for or otherwise criminally or civilly
charged by a governmental entity (Federal, State or local) with
commission of any of the offenses enumerated in paragraph 1b of this
certification; and
Certification Regarding Debarment, Suspension, Ineligibility and
d. Have not within a 3 -year period preceding this Voluntary Exclusion —Lower Tier Covered Transactions:
application /proposal had one or more public transactions (Federal, State
or local) terminated for cause or default. 1. The prospective lower tier participant certifies, by submission of
this proposal, that neither it nor its principals is presently debarred,
2. Where the prospective primary participant is unable to certify to suspended, proposed for debarment, declared ineligible, or voluntarily
any of the statements in this certification, such prospective participant excluded from participation in this transaction by any Federal
shall attach an explanation to this proposal. department or agency.
2. Where the prospective lower tier participant is unable to certify to
any of the statements in this certification, such prospective participant
shall attach an explanation to this proposal.
2. Instructions for Certification - Lower Tier Covered Transac-
tions:
(Applicable to all subcontracts, purchase orders and other lower tier XII. CERTIFICATION REGARDING USE OF CONTRACT FUNDS OR
transactions of $25,000 or more - 49 CFR 29) LOBBYING
a. By signing and submitting this proposal, the prospective lower (Applicable to all Federal -aid construction contracts and to all related
tier is providing the certification set out below. subcontracts which exceed $100,000 - 49 CFR 20)
b. The certification in this clause is a material representation of 1. The prospective participant certifies, by signing and submitting this
fact upon which reliance was placed when this transaction was entered bid or proposal, to the best of his or her knowledge and belief, that:
into. If it is later determined that the prospective lower tier participant
knowingly rendered an erroneous certification, in addition to other a. No Federal appropriated funds have been paid or will be paid,
remedies available to the Federal Government, the department, or by or on behalf of the undersigned, to any person for influencing or
agency with which this transaction originated may pursue available attempting to influence an officer or employee of any Federal agency, a
remedies, including suspension and /or debarment. Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with the awarding of
Page 7 of 8 REQUIRED BY 23 CFR 633.102 --
any Federal contract, the making of any Federal grant, the making of 2 This certification is a material representation of fact upon which
any Federal loan, the entering into of any cooperative agreement, and reliance was placed when this transaction was made or entered into.
the extension, continuation, renewal, amendment, or modification of any 2. Submission of this certification is a prerequisite for making or entering
Federal contract, grant, loan, or cooperative agreement. into this transaction imposed by 31 U.S.C. 1352. Any person who fails to
file the required certification shall be subject to a civil penalty of not less
b. If any funds other than Federal appropriated funds have been than $10,000 and not more than $100,000 for each such failure.
paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any Federal agency, a Member of 3. The prospective participant also agrees by submitting his or her bid or
Congress, an officer or employee of Congress, or an employee of a proposal that he or she shall require that the language of this
Member of Congress in connection with this Federal contract, grant, certification be included in all lower tier subcontracts, which exceed
loan, or cooperative agreement, the undersigned shall complete and $100,000 and that all such recipients shall certify and disclose
submit Standard Form -LLL, "Disclosure Form to Report Lobbying," in accordingly
accordance with its instructions.
Page 8 of 8 REQUIRED BY 23 CFR 633.102 --
37. EXHIBIT J — FEDERAL REQUIREMENTS
Federal laws and regulations that may be applicable to the Work include:
A. Uniform Administrative Requirements for Agreements and Cooperative Agreements to
State and Local Governments (Common Rule)
The "Uniform Administrative Requirements for Agreements and Cooperative Agreements to
State and Local Governments (Common Rule), at 49 Code of Federal Regulations, Part 18,
except to the extent that other applicable federal requirements (including the provisions of 23
CFR Parts 172 or 633 or 635) are more specific than provisions of Part 18 and therefore
supersede such Part 18 provisions. The requirements of 49 CFR 18 include, without limitation:
i. the Local Agency /Contractor shall follow applicable procurement procedures, as required by
section 18.36(d);
H. the Local Agency /Contractor shall request and obtain prior CDOT approval of changes to
any subcontracts in the manner, and to the extent required by, applicable provisions of
section 18.30;
iii. the Local Agency /Contractor shall comply with section 18.37 concerning any sub -
Agreements;
iv. to expedite any CDOT approval, the Local Agency /Contractor's attorney, or other
authorized representative, shall also submit a letter to CDOT certifying Local
Agency /Contractor compliance with section 18.30 change order procedures, and with
18.36(d) procurement procedures, and with 18.37 sub - Agreement procedures, as
applicable;
v. the Local Agency /Contractor shall incorporate the specific contract provisions described in
18.36(i) (which are also deemed incorporated herein) into any subcontract(s) for such
services as terms and conditions of those subcontracts.
B. Executive Order 11246
Executive Order 11246 of September 24, 1965 entitled "Equal Employment Opportunity," as
amended by Executive Order 11375 of October 13, 1967 and as supplemented in Department
of Labor regulations (41 CFR Chapter 60) (All construction contracts awarded in excess of
$10,000 by the Local Agencys and their contractors or sub -the Local Agencys).
C. Copeland "Anti- Kickback" Act
The Copeland "Anti- Kickback" Act (18 U.S.C. 874) as supplemented in Department of Labor
regulations (29 CFR Part 3) (All contracts and sub - Agreements for construction or repair).
D. Davis -Bacon Act
The Davis -Bacon Act (40 U.S.C. 276a to a -7) as supplemented by Department of Labor
regulations (29 CFR Part 5) (Construction contracts in excess of $2,000 awarded by the Local
Agencys and sub -the Local Agencys when required by Federal Agreement program legislation.
This act requires that all laborers and mechanics employed by contractors or sub - contractors to
work on construction projects financed by federal assistance must be paid wages not less than
those established for the locality of the project by the Secretary of Labor).
E. Contract Work Hours and Safety Standards Act
Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-
330) as supplemented by Department of Labor regulations (29 CFR Part 5). (Construction
contracts awarded by the Local Agencys and sub -the Local Agencys in excess of $2,000, and in
excess of $2,500 for other contracts which involve the employment of mechanics or laborers).
F. Clear Air Act
Standards, orders, or requirements issued under section 306 of the Clear Air Act (42 U.S.C.
1857(h), section 508 of the Clean Water Act (33 U.S.C. 1368). Executive Order 11738, and
Environmental Protection Agency regulations (40 CFR Part 15) (contracts, subcontracts, and
sub - Agreements of amounts in excess of $100,000).
G. Energy Policy and Conservation Act
Page 1 of 3
Mandatory standards and policies relating to energy efficiency which are contained in the state
energy conservation plan issued in compliance with the Energy Policy and Conservation Act
(Pub. L. 94 -163).
H. OMB Circulars
Office of Management and Budget Circulars A -87, A -21 or A -122, and A -102 or A -110,
whichever is applicable.
1. Hatch Act
The Hatch Act (5 USC 1501 -1508) and Public Law 95 -454 Section 4728. These statutes state
that federal funds cannot be used for partisan political purposes of any kind by any person or
organization involved in the administration of federally- assisted programs.
J. Nondiscrimination
42 USC 6101 et seq. 42 USC 2000d, 29 USC 794, and implementing regulation, 45 C.F.R. Part
80 et. sea. These acts require that no person shall, on the grounds of race, color, national
origin, age, or handicap, be excluded from participation in or be subjected to discrimination in
any program or activity funded, in whole or part, by federal funds.
K. ADA
The Americans with Disabilities Act (Public Law 101 -336; 42 USC 12101, 12102, 12111- 12117,
12131 - 12134, 12141 - 12150, 12161 - 12165, 12181 - 12189, 12201 -12213 47 USC 225 and 47
USC 611.
L. Uniform Relocation Assistance and Real Property Acquisition Policies Act
The Uniform Relocation Assistance and Real Property Acquisition Policies Act, as amended
(Public Law 91 -646, as amended and Public Law 100 -17, 101 Stat. 246 -256). (If the contractor
is acquiring real property and displacing households or businesses in the performance of the
Agreement).
M. Drug -Free Workplace Act
The Drug -Free Workplace Act (Public Law 100 -690 Title V, subtitle D, 41 USC 701 et sea.).
N. Age Discrimination Act of 1975
The Age Discrimination Act of 1975, 42 U.S.C. Sections 6101 et. sea. and its implementing
regulation, 45 C.F.R. Part 91; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, as
amended, and implementing regulation 45 C.F.R. Part 84.
O. 23 C.F.R. Part 172
23 C.F.R. Part 172, concerning "Administration of Engineering and Design Related Contracts ".
P. 23 C.F.R Part 633
23 C.F.R Part 633, concerning "Required Contract Provisions for Federal -Aid Construction
Contracts ".
0.23 C.F.R. Part 635
23 C.F.R. Part 635, concerning "Construction and Maintenance Provisions ".
R. Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973
Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973. The
requirements for which are shown in the Nondiscrimination Provisions, which are attached
hereto and made a part hereof.
S. Nondiscrimination Provisions:
S. Nondiscrimination Provisions:
In compliance with Title VI of the Civil Rights Act of 1964 and with Section 162(a) of the Federal
Aid Highway Act of 1973, the Contractor, for itself, its assignees and successors in interest,
agree as follows:
i. Compliance with Regulations
The Contractor will comply with the Regulations of the Department of Transportation relative
to nondiscrimination in Federally assisted programs of the Department of Transportation
(Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the "Regulations "),
which are herein incorporated by reference and made a part of this Agreement.
Page 2 of 3
ii. Nondiscrimination
The Contractor, with regard to the work performed by it after award and prior to completion of
the contract work, will not discriminate on the ground of race, color, sex, mental or physical
handicap or national origin in the selection and retention of Subcontractors, including
procurement of materials and leases of equipment. The Contractor will not participate either
directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations,
including employment practices when the contract covers a program set forth in Appendix C
of the Regulations.
iii. Solicitations for Subcontracts, Including Procurement of Materials and Equipment
In all solicitations either by competitive bidding or negotiation made by the Contractor for
work to be performed under a subcontract, including procurement of materials or equipment,
each potential Subcontractor or supplier shall be notified by the Contractor of the
Contractor's obligations under this Agreement and the Regulations relative to
nondiscrimination on the ground of race, color, sex, mental or physical handicap or national
origin.
iv. Information and Reports
The Contractor will provide all information and reports required by the Regulations, or orders
and instructions issued pursuant thereto and will permit access to its books, records,
accounts, other sources of information and its facilities as may be determined by the State or
the FHWA to be pertinent to ascertain compliance with such Regulations, orders and
instructions. Where any information required of the Contractor is in the exclusive possession
of another who fails or refuses to furnish this information, the Contractor shall so certify to the
State, or the FHWA as appropriate and shall set forth what efforts have been made to obtain
the information.
v. Sanctions for Noncompliance.
In the event of the Contractor's noncompliance with the nondiscrimination provisions of this
Agreement, the State shall impose such contract sanctions as it or the FHWA may determine
to be appropriate, including, but not limited to: a. Withholding of payments to the Contractor
under the contract until the Contractor complies, and /or b. Cancellation, termination or
suspension of the contract, in whole or in part.
T. Incorporation of Provisions §22
The Contractor will include the provisions of paragraphs A through F in every subcontract,
including procurement of materials and leases of equipment, unless exempt by the Regulations,
orders, or instructions issued pursuant thereto. The Contractor will take such action with respect
to any subcontract or procurement as the State or the FHWA may direct as a means of
enforcing such provisions including sanctions for noncompliance; provided, however, that, in the
event the Contractor becomes involved in, or is threatened with, litigation with a Subcontractor
or supplier as a result of such direction, the Contractor may request the State to enter into such
litigation to protect the interest of the State and in addition, the Contractor may request the
FHWA to enter into such litigation to protect the interests of the United States.
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