HomeMy WebLinkAbout11238Docusign Envelope ID: 62CECE20-9011-8987-81 BB-9AC28C282C20
ORDINANCE NO. 11238
AN ORDINANCE APPROVING AN INTERGOVERNMENTAL
AGREEMENT BETWEEN THE CITY OF PUEBLO, A
COLORADO MUNICIPAL CORPORATION, AND THE STATE OF
COLORADO, ACTING BY AND THROUGH THE COLORADO
DEPARTMENT OF TRANSPORTATION, PROJECT: SHO M086-
106 (27194) PRAIRIE AND ST CLAIR IMPROVEMENTS,
ACCEPTING A GRANT IN THE AMOUNT OF $621,000,
ESTABLISHING PROJECT ACCOUNT C12616, CDOT GRANT
PRAIRIE & ST CLAIR, TRANSFERRING $69,000 FROM
PROJECT ACCOUNT HUAN01, STREET RESURFACING
PROJECT TO PROJECT ACCOUNT C12616, CDOT GRANT
PRAIRIE & ST CLAIR PROJECT, BUDGETING AND
APPROPRIATING FUNDS IN THE AMOUNT OF $690,000, AND
AUTHORIZING THE MAYOR TO EXECUTE SAME
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
Project Account C12616, CDOT Grant Prairie & St Clair Project, is hereby established.
SECTION 2.
The Intergovernmental Agreement ("IGA") between the City of Pueblo ("City"), a
Colorado Municipal Corporation, and the State of Colorado, acting with and through the
Colorado Department of Transportation ("CDOT"), Project: SHO M086-106 (27194), Prairie and
St Clair Intersection, a copy of which is attached hereto, having been approved as to form by
the City Attorney, is hereby approved.
SECTION 3.
Funds in the amount of $69,000.00 are hereby transferred from Project Account
HUAN01, Street Resurfacing to Project Account C12616, CDOT Grant Prairie & St Clair Project,
and budgeted and appropriated for the CDOT Grant Prairie & St Clair Project Account, C12616.
SECTION 4.
Subject to encumbrances by the Colorado State Department of Transportation, funds in
the amount of $621,000.00 are hereby budgeted and appropriated for the Prairie & St Clair
Intersection Imp into Project Account C12616.
SECTION 5.
The Mayor is authorized to execute and deliver the IGA in the name of the City of Pueblo
and the City Clerk is directed to affix the seal of the City thereto and attest same.
SECTION 6.
The officers of the City are authorized to perform any and all acts consistent with this
Ordinance and IGA to implement the policies and procedures described herein.
Docusign Envelope ID: 62CECE20-9011-8987-81 BB-9AC28C282C20
SECTION 7.
This Ordinance shall become effective on the date of final action by the Mayor and City
Council.
Action by City Council:
Introduced and initial adoption of Ordinance by City Council on July 13, 2026.
Final adoption of Ordinance by City Council on July 27, 2026. DocuSignedby:
President of City Council
Action by the Mayor:
Q Approved on
❑ Disapproved on
07/29/2026
based on the following objections:
Mayor
Action by City Council After Disapproval by the Mayor:
❑ Council did not act to override the Mayor's veto.
❑ Ordinance re -adopted on a vote of , on
❑ Council action on failed to override the Mayor's veto.
President of City Council
ATTEST 1.Docusignedby:
City Clerk
Docusign Envelope ID: 62CECE20-9011-8987-81 BB-9AC28C282C20
City Clerk's Office Item # R10
Ciify of
PUEBLO
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Background Paper for Proposed
Ordinance
COUNCIL MEETING DATE: July 27, 2026
TO: President Mark Aliff and Members of City Council
CC: Mayor Heather Graham
VIA: Clyde Bishop, City Clerk
FROM: Andrew Hayes, Public Works Director
SUBJECT: AN ORDINANCE APPROVING AN INTERGOVERNMENTAL
AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO
MUNICIPAL CORPORATION, AND THE STATE OF COLORADO,
ACTING BY AND THROUGH THE COLORADO DEPARTMENT OF
TRANSPORTATION, PROJECT: SHO M086-106 (27194) PRAIRIE AND
ST CLAIR IMPROVEMENTS, ACCEPTING A GRANT IN THE AMOUNT
OF $621,000, ESTABLISHING PROJECT ACCOUNT C12616, CDOT
GRANT PRAIRIE & ST CLAIR, TRANSFERRING $69,000 FROM
PROJECT ACCOUNT HUAN01, STREET RESURFACING PROJECT
TO PROJECT ACCOUNT C12616, CDOT GRANT PRAIRIE & ST CLAIR
PROJECT, BUDGETING AND APPROPRIATING FUNDS IN THE
AMOUNT OF $690,000, AND AUTHORIZING THE MAYOR TO
EXECUTE SAME
SUMMARY:
This Ordinance approves an Intergovernmental Agreement ("IGA") between Pueblo, a
Colorado Municipal Corporation ("City") and the State of Colorado, Colorado
Department of Transportation ("CDOT") accepting a grant in the amount of
$621,000.00, creates Project Account C12616 for CDOT Grant Prairie & St Clair
Project, transfers $69,000.00 for the required 10% match from Project Account
HUAN01, and budgets and appropriates funds totaling $690,000.00 for the Project.
PREVIOUS COUNCIL ACTION:
Resolution 15519, dated February 26, 2024, awarded an Agreement for Professional
Engineering Services in the amount of $142,250.00 to Olsson, Inc., for Project 23-146,
Design for Intersection of Prairie and St. Clair.
Resolution 15613, dated April 22, 2024, rescinded an Agreement for Professional
Engineering Services with Olsson, Inc., awarded an Agreement for Professional
Engineering Services with JR Engineering, Inc., in the amount of $145,890.00 for
Docusign Envelope ID: 62CECE20-9011-8987-81 BB-9AC28C282C20
Project No. 23-146, Design for Intersection of Prairie and St. Clair.
BACKGROUND:
This Ordinance accepts the Highway Safety Improvements Program (SHO) grant award
for Prairie and St Clair Intersection Improvements.
The City submitted a grant to CDOT for the Prairie and St Clair Intersection
Improvements Project. Although Prairie Avenue and St. Clair Avenue is a signalized
intersection, the City identified this intersection as needing improvements due to the
abnormally high number of broadside and rear end vehicle crashes.
Prairie Avenue is a four -lane major arterial and St Clair functions as a minor arterial
(although it is built like a 2 -lane collector). The intersection of Prairie and St. Clair has
been on the City's Capital Improvement Plan since at least 2017, though it has never
been funded.
The Department of Public Works has reviewed and is familiar with the grant application,
award, and associated draft agreement, and to the best of our knowledge and belief,
the City has the present ability to comply with all monetary expenditures, special
conditions, certifications and assurances therein contained.
FINANCIAL IMPLICATIONS:
The matching funds in the amount of $69,000.00 will be transferred from Project
Account HUAN01, Street Resurfacing to Project Account C12616, CDOT Grant Prairie
& St Clair.
Funds in the amount of $690,000.00 shall be budgeted and appropriated for Project
Account C12616.
BOARD/COMMISSION RECOMMENDATION:
None.
STAKEHOLDER PROCESS:
None.
ALTERNATIVES:
Currently, there are no alternatives for completing the improvements without the
funding from the Highway Safety Improvement Program funds.
RECOMMENDATION:
Approve the Ordinance.
ATTACHMENTS:
1. Complete Draft OLA Pueblo (27194) 331003862 June 26, 2026
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
OLA #: 331003862
Routing #:26-HA2-XC-00140
State of Colorado Intergovernmental Agreement
Cover Page
State Agency Agreement Maximum Amount
Department of Transportation $690,000.00
Local Agency
City of Pueblo
Agreement Routing Number
26-HA2-XC-00140
Agreement Effective Date
The later of the Effective Date or
May 27, 2026
Project #
SHO M086-106 (27194)
Region #
2
Agreement Writer
Clayton McClellan
Agreement Description
Agreement Expiration Date Prairie & St Clair Imp
May 26, 2036
Exhibits and Order of Precedence
The following Exhibits and attachments are included with this Agreement:
1. Exhibit A, Scope of Work
2. Exhibit B, Sample Option Letter
3. Exhibit C, Funding Provisions (Budget)
4. Exhibit D, Local Agency Resolution
5. Exhibit E, Local Agency Agreement Administration Checklist
6. Exhibit F, Certification for Federal -Aid Agreements
7. Exhibit G, Disadvantaged Business Enterprise
8. Exhibit H, Local Agency Procedures for Consultant Services
9. Exhibit I, Federal -Aid Agreement Provisions for Construction Agreements
10. Exhibit J, Additional Federal Requirements
11. Exhibit K, Sample Subrecipient Monitoring and Risk Assessment Form
12. Exhibit L, 2 C.F.R. Part 200
13. Exhibit M, Federal Treasury Provisions- Reserved
In the event of a conflict or inconsistency between this Agreement and any Exhibit or
attachment, such conflict or inconsistency shall be resolved by reference to the documents in
the following order of priority:
1. The provisions of the other sections of the main body of this Agreement.
2. Exhibit A, Scope of Work
3. Exhibit M, Federal Treasury Provisions -Reserved.
4. Exhibit F, Certification for Federal -Aid Contracts.
5. Exhibit G, Disadvantaged Business Enterprise.
6. Exhibit I, Federal -Aid Contract Provisions for Construction Contracts.
7. Exhibit J, Additional Federal Requirements.
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Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
OLA #: 331003862
Routing #:26-HA2-XC-00140
8. Exhibit K, Sample Sub -Recipient Monitoring and Risk Assessment Form.
9. Exhibit L, 2 C.F.R. Part 200.
10. Exhibit C, Funding Provisions.
11. Exhibit H, Local Agency Procedures for Consultant Services.
12. Exhibit B, Sample Option Letter.
13. Exhibit E, Local Agency Contract Administration Checklist
14. Exhibit D, Local Agency Resolution
15. Other exhibits in descending order of their attachment.
Principal Representatives
For the State:
Matthew Pettit, Local Agency Coordinator
CDOT, Region 2
5615 Wills Blvd.
Pueblo, CO 81008
Matthew.pettit@state.co.us
719-248-0378
For Local Agency:
Kelly Grisham, Project Coordinator
City of Pueblo
211 East D Street
Pueblo, CO 81003
kgrisham@pueblo.us
719-553-2254
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Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
OLA #: 331003862
Routing #:26-HA2-XC-00140
Signature Page
THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT
Each person signing this Contract represents and warrants that he or she is duly authorized
to execute this Contract and to bind the Party authorizing his or her signature.
Local Agency State of Colorado
City of Pueblo Jared S. Polis, Governor
Department of Transportation
Signed by'. Shoshana M. Lew, Executive Director
By: Heather Graham, Mayor
8/18/2026
Date.
Local Agency
City of Pueblo
DocuSigned by:
*ATTEST*
By: Clyde Bishop, City Clerk
Date: 8/18/2026
State Controller
Robert Jaros, CPA, MBA, JD
nsigned by:
ovt
By: Coloradorepartment of Transportation
Effective Date: 8/18/2026
11 Docu/Signed by:
By: Keith Stefanik, P.E., Chief Engineer
Date: 8/18/2026
Legal Review
Philip J. Weiser, Attorney General
N/A
By: Assistant Attorney General
Date:
In accordance with §24-30-202, C.R.S., this Contract is not valid until signed and dated
above by the State Controller or an authorized delegate.
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Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
OLA #: 331003862
Routing #:26-HA2-XC-00140
Table Of Contents
1.
Parties...........................................................................................................
5
2.
Term And Agreement Effective Date.............................................................
5
3.
Authority........................................................................................................
5
4.
Purpose.........................................................................................................
6
5.
Definitions......................................................................................................
6
6.
Scope Of Work............................................................................................
10
7.
Payments.....................................................................................................
17
8.
Reporting - Notification................................................................................
24
9.
Local Agency Records.................................................................................
25
10.
Confidential Information -State Records.......................................................
26
11.
Conflicts Of Interest.....................................................................................
28
12.
Insurance.....................................................................................................
29
13.
Termination..................................................................................................
33
14.
Breach.........................................................................................................
34
15.
Remedies....................................................................................................
34
16.
Dispute Resolution......................................................................................
36
17.
Notices And Representatives......................................................................
37
18.
Rights In Work Product And Other Information ............................................37
37
19.
General Provisions......................................................................................
39
20.
Colorado Special Provisions (Colorado Fiscal Rule 3-3) .............................
42
21.
Federal Requirements.................................................................................
44
22.
Disadvantaged Business Enterprise (DBE) .................................................
45
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Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
OLA #: 331003862
Routing #:26-HA2-XC-00140
Agreement Provisions
1. PARTIES
This Agreement is entered into by and between Local Agency named on the
Signature and Cover Page for this Agreement (Local Agency), and the STATE OF
COLORADO acting by and through the State agency named on the Signature and
Cover Page for this Agreement (the State or CDOT). Local Agency and the State
agree to the terms and conditions in this Agreement.
2. TERM AND AGREEMENT EFFECTIVE DATE
A. Agreement Effective Date
This Agreement shall not be valid or enforceable until the Agreement
Effective Date (as defined in §5), and Agreement Funds shall be expended
within the dates shown in Exhibit C for each respective phase (Phase
Performance Period(s). The State shall not be bound by any provision of
this Agreement before the Agreement Effective Date, and shall have no
obligation to pay Local Agency for any Work performed or expense incurred
before 1) the Agreement Effective Date of this original Agreement; except
as described below in §7.D of this Agreement; 2) before the Encumbering
Document for the respective phase and the official Notice to Proceed for the
respective phase; or 3) after the Final Phase Performance End Date, as
shown in Exhibit C. Additionally, the State shall have no obligation to pay
Local Agency for any Work performed or expense incurred (i) after the
Agreement Expiration Date, (ii) after the required billing deadline specified
below in §7.B.i.e.of this Agreement, (iii) or the expiration of "Special
Funding" if applicable, whichever is sooner. If any of the funding has
milestones that must be met by a certain date or an expiration date of the
funds, then the State's obligation to pay those funds ends if milestones are
not timely met or on the expiration of those funds and no payments will be
made after that date. Otherwise, Agreement Funds will continue until the
Agreement Expiration Date. Funds with milestone deadlines and/or an
expiration date are shown on Exhibit A.
B. Initial Term and Extension
The Parties' respective performances under this Agreement shall
commence on the Agreement Effective Date shown on the Signature and
Cover Page for this Agreement and shall terminate on the Agreement
Expiration Date as shown on the Signature and Cover Page for this
Agreement, unless sooner terminated or further extended in accordance
with the terms of this Agreement. Upon request of Local Agency, the State
may, in its sole discretion, extend the term of this Agreement by Option
Letter pursuant to §7.E.iv below. If the Work will be performed in multiple
phases, the Phase Performance Period of each phase is detailed in Exhibit
C.
3. AUTHORITY
Authority to enter into this Agreement exists in the law as follows:
A. Federal Authority
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Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
OLA #: 331003862
Routing #:26-HA2-XC-00140
Pursuant to Title I, Subtitle A, of the Infrastructure Investment and Jobs Act
(IIJA), and to applicable provisions of Title 23 (Highways) of the United
States Code (U.S.C.) and implementing regulations at Title 23 (Highways)
of the Code of Federal Regulations (C.F.R.), 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 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), pursuant to Title 49 U.S.C. (Transportation)
Chapter 53 (Public Transportation) and Title 23, U.S.C., as amended by the
IIJA, the Fixing America's Surface Transportation Act (FAST), or other
Federal laws that Federal Transit Administration (FTA) administers.
B. State Authority
Pursuant to Colorado Revised Statutes (C.R.S.) §43-1-223 and applicable
portions of the Federal Provisions, the State is responsible for the general
administration and supervision of the 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 C.R.S. §§29-1-203, 43-1-110,
43-1-116, 43-2-101(4)(c) and 43-2-104.5.
4. PURPOSE
The purpose of this Agreement is to disburse Federal and State funds if applicable
to the Local Agency pursuant to CDOT's Stewardship Agreement with the FHWA,
and pursuant to agreement with the U.S. Department of the Treasury (USDT)
and/or FTA as shown in Exhibit C.
5. DEFINITIONS
The following terms shall be construed and interpreted as follows
A. "Agreement" means this Agreement, including all attached Exhibits, all
documents incorporated by reference, all referenced statutes, rules and
cited authorities, and any future modifications thereto. Agreement is used
interchangeably with Contract.
B. "Agreement Effective Date" means the date on which this Agreement is
approved and signed by the Colorado State Controller or designee, as
shown on the Signature and Cover Page for this Agreement.
C. "Agreement Expiration Date" means the date on which this Agreement
expires, as shown on the Signature and Cover Page for this Agreement.
D "Agreement Funds" means the funds that have been appropriated,
designated, encumbered, or otherwise made available for payment by the
State under this Agreement.
E. "Award" means an award by a Recipient to a Subrecipient funded in whole
or in part by a Federal Award. The terms and conditions of the Federal
Award flow down to the Award unless the terms and conditions of the
Federal Award specifically indicate otherwise.
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Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
OLA #: 331003862
Routing #:26-HA2-XC-00140
F. "Breach of Agreement" means the failure of a Party to perform any of its
obligations in accordance with this Agreement, in whole or in part or in a
timely or satisfactory manner. The institution of proceedings under any
bankruptcy, insolvency, reorganization or similar law, by or against Local
Agency, or the appointment of a receiver or similar officer for Local Agency
or any of its property, which is not vacated or fully stayed within 30 days
after the institution of such proceeding, shall also constitute a breach. If
Local Agency or any Contractor or Consultant is debarred or suspended
under C.R.S. §24-109-105, at any time during their performance under this
Agreement, then such debarment or suspension shall constitute a breach.
G. "Budget" means the budget for the Work described in Exhibit C.
H. "Business Day" means any day in which the State is open and conducting
business, but shall not include Saturday, Sunday, or any day on which the
State observes one of the holidays listed in C.R.S.§24-11-101(1).
I. "Consultant" means a professional engineer or designer hired by Local
Agency to design the Work Product.
J. "Contract" means this Agreement, including all attached Exhibits, all
documents incorporated by reference, all referenced statutes, rules and
cited authorities, and any future modifications thereto. Contract and
Agreement are used interchangeably.
K. "Contractor" means the general construction contractor hired by Local
Agency to construct the Work.
L. "CORA" means the Colorado Open Records Act, C.R.S. §§24-72-200.1 et
seq.
M. "Encumbering Document" means a document that authorizes a formal
obligation of funds, typically done through an "Option Letter" as set forth in
§7.E.
N. "Evaluation" means the process of examining Local Agency's Work and
rating it based on criteria established in §6, Exhibit A and Exhibit E.
O. "Exhibits" means the following exhibits attached to this Agreement:
i. Exhibit A, Scope of Work.
ii. Exhibit B, Sample Option Letter.
iii. Exhibit C, Funding Provisions
iv. Exhibit D, Local Agency Resolution
v. Exhibit E, Local Agency Contract Administration Checklist
vi. Exhibit F, Certification for Federal -Aid Contracts
vii. Exhibit G, Disadvantaged Business Enterprise
viii. Exhibit H, Local Agency Procedures for Consultant Services
ix. Exhibit I, Federal -Aid Contract Provisions for Construction Contracts
x. Exhibit J, Additional Federal Requirements
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Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
OLA #: 331003862
Routing #:26-HA2-XC-00140
xi. Exhibit L, Sample Sub -Recipient Monitoring and Risk Assessment
Form
xii. Exhibit M, 2 C.F.R. Part 200
xiii. Exhibit N, Federal Treasury Provisions (Reserved)
P. "Federal Award" means an award of Federal financial assistance or a cost -
reimbursement contract by a Federal Awarding Agency to a Recipient. It
also means an agreement setting forth the terms and conditions of the
Federal Award. The term does not include payments to a contractor or
payments to an individual that is a beneficiary of a Federal program.
Q. "Federal Awarding Agency" means a Federal agency providing a Federal
Award to a Recipient.
R. "FHWA" means the Federal Highway Administration, which is one of the 10
Operating Administrations under the Office of the Secretary of
Transportation at the U.S. Department of Transportation. FHWA provides
stewardship over the construction, maintenance and preservation of the
Nation's highways and tunnels. FHWA is the Federal Awarding Agency for
the Federal Award which may be the subject of this Agreement.
S. "Force Account Construction" means a method of payment where the
Local Agency is reimbursed for the actual costs of labor, materials, and
equipment, plus a predetermined percentage for overhead and profit.
T. "FTA" means Federal Transit Administration.
U. "Goods" means any movable material acquired, produced, or delivered by
Local Agency as set forth in this Agreement and shall include any movable
material acquired, produced, or delivered by Local Agency in connection
with the Services.
V. "Incident" means any accidental or deliberate event that results in or
constitutes an imminent threat of the unauthorized access or disclosure of
State Confidential Information or of the unauthorized modification,
disruption, or destruction of any State Records.
W. "Initial Term" means the time period defined in §2.B.
X. "Local Agency Manual" means a manual to assist Local Agency personnel
involved in the design, construction and management of State and Federally
funded projects. It is available on CDOT's website or can be provided to
Local Agency upon request.
Y. "Local Funds" means the funds provided by the Local Agency as their
obligated contribution to the Federal and/or State Awards to receive the
Federal and/or State funding.
Z. "Notice to Proceed" means the letter issued by the State to the Local
Agency stating the date the Local Agency can begin Work subject to the
conditions of this Agreement.
AA. "OMB" means the Executive Office of the President, Office of Management
and Budget.
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OLA #: 331003862
Routing #:26-HA2-XC-00140
BB. "Oversight" means the term as it is defined in the Stewardship Agreement
between CDOT and the FHWA.
CC. "Party" means the State or Local Agency, and "Parties" means both the
State and Local Agency.
DD. "PII" means personally identifiable information including, without limitation,
any information maintained by the State about an individual that can be
used to distinguish or trace an individual`s identity, such as name, social
security number, date and place of birth, mother`s maiden name, or
biometric records; and any other information that is linked or linkable to an
individual, such as medical, educational, financial, and employment
information. PII includes, but is not limited to, all information defined as
personally identifiable information in C.R.S. §24-72-501 "PII" shall also
mean "personal identifying information" as set forth at C.R.S. § 24-74-102,
et seq.
EE. "Recipient" means the Colorado Department of Transportation (CDOT).
FF. "Services" means the services to be performed by Local Agency as set
forth in this Agreement and shall include any services to be rendered by
Local Agency in connection with the Goods and shall include any
maintenance.
GG. "Special Funding" means an award by Federal agency or the State which
may include but is not limited to one (1) or a combination of Congressional
Earmark, Multimodal Transportation & Mitigation Options Funding,
Revitalizing Main Streets, Safer Main Streets and/or any other applicable
funds.
HH. "State Confidential Information" shall include, but is not limited to, PII and
State personnel records not subject to disclosure under CORA. State
Confidential Information shall not include information or data concerning
individuals that is not deemed confidential but nevertheless belongs to the
State, which has been communicated, furnished, or disclosed by the State
to Contractor which (i) is subject to disclosure pursuant to CORA; (ii) is
already known to Contractor without restrictions at the time of its disclosure
to Contractor; (iii) is or subsequently becomes publicly available without
breach of any obligation owed by Contractor to the State; (iv) is disclosed
to Contractor, without confidentiality obligations, by a third party who has
the right to disclose such information; or (v) was independently developed
without reliance on any State Confidential Information.
II. "State Fiscal Rules" means the fiscal rules promulgated by the Colorado
State Controller pursuant to C.R.S. §24-30-202(13)(a).
JJ. "State Fiscal Year" means a 12 -month period beginning on July 1 of each
calendar year and ending on June 30 of the following calendar year. If a
single calendar year follows the term, then it means the State Fiscal Year
ending in that calendar year.
JJ. "State Records" means all State data, information, and records, regardless
of physical form, including, but not limited to, information subject to
disclosure under CORA.
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Routing #:26-HA2-XC-00140
KK. "Sub -Award" means this Award by the State to Local Agency funded in
whole or in part by a Federal Award and/or State funds. The terms and
conditions of the Federal Award and/or the State funds flow down to this
Sub -Award unless the terms and conditions of the Federal Award and/or
State funds specifically indicate otherwise.
LL. "Subcontractor" means third parties, if any, engaged by Local Agency to
aid in performance of the Work.
MM. "Subrecipient" means a non -Federal entity that receives a sub -award from
a Recipient to carry out part of a Federal program but does not include an
individual that is a beneficiary of such program. A Subrecipient may also
be a recipient of other Federal Awards directly from a Federal Awarding
Agency. For purposes of this Agreement, Local Agency is a subrecipient.
NN. "Uniform Guidance" means Title 2 (Federal Financial Assistance) C.F.R
Chapter 200 (Uniform Administration Requirements, Cost Principles, and
Audit Requirements for Federal Awards) in its entirety.
00. "USDT" means the United States Department of the Treasury which is the
national treasury and finance department of the Federal government of the
United States where it serves as an executive department and is the
Federal Awarding Agency for the Federal Award which may be the subject
of this Agreement.
PP. "Work" means the delivery of the Goods and performance of the Services
in compliance with CDOT's Local Agency Manual described in this
Agreement.
QQ. "Work Product" means the tangible and intangible results of the Work,
whether finished or unfinished, including drafts. Work Product includes,
but is not limited to, documents, text, software (including source code),
research, reports, proposals, specifications, plans, notes, studies, data,
images, photographs, negatives, pictures, drawings, designs, models,
surveys, maps, materials, ideas, concepts, know-how, and any other
results of the Work. "Work Product" does not include any material that was
developed prior to the Agreement Effective Date that is used, without
modification, in the performance of the Work.
Any other term used in this Agreement that is defined in an Exhibit shall be
construed and interpreted as defined in that Exhibit.
6. SCOPE OF WORK
Local Agency shall complete the Work as described in and in accordance with the
provisions of this Agreement, the provisions of Exhibit A, and the Local Agency
Manual. The State shall have no liability to compensate Local Agency for the
delivery of any Goods or the performance of any Services that are not specifically
set forth in this Agreement. Work may be divided into multiple phases that have
separate periods of performance. The State may not compensate for Work that
Local Agency performs outside of its designated Phase Performance Period. The
Phase Performance Periods, including, but not limited to Design, Construction,
Miscellaneous, Right of Way, Utilities, and/or Environment phases, are identified
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in Exhibit C. The State may unilaterally modify Exhibit C from time to time, at its
sole discretion, as listed in §7.E of this Agreement.
A. Local Agency Commitments
Design
If the Work includes preliminary design, final design, design work
sheets, or special provisions and estimates (collectively referred to
as the "Plans"), Local Agency shall ensure that Local Agency it and
its Contractors and Subcontractors comply with and are responsible
for satisfying the following requirements:
a. Perform or provide the Plans to the State.
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 to prevent
any interference of the construction Work and to protect the
travelling public.
e. Stamp the Plans as produced by a Colorado registered
professional engineer.
f. Provide final assembly of Plans and all other necessary
documents to the State pursuant to §17.
g. Ensure the Plans are accurate and complete.
h. The Plans shall be considered final when approved in writing
by CDOT, and when final, the Plans will be deemed
incorporated herein. Local Agency shall make no further
changes in the Plans following the award of the construction
contract to Contractor unless expressly agreed to in writing by
the Parties.
ii. Local Agency Work
a. Local Agency shall comply with the requirements of the
Americans with Disabilities Act (ADA) 42 U.S.C. § 12101, et
seq., and applicable Federal regulations and standards as
contained in the procedural directive "ADA Accessibility
Requirements in CDOT Transportation Projects".
b. Local Agency shall afford the State ample opportunity to
review the Plans and shall make any changes in the Plans
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that are directed by the State to comply with FHWA
requirements.
c. Local Agency may enter into a contract with a Consultant to
perform all or any portion of the Plans and/or construction
administration. Provided, however, if Federal -aid funds are
involved in the cost of such Work to be done by such
Consultant, such Consultant contract (and the performance
provision of the Plans under the contract) must comply with
all applicable requirements of 23 C. F. R. Part 172 and with any
procedures implementing those requirements as provided by
the State, including those in Exhibit H. If Local Agency enters
into a contract with a Consultant for the Work Local Agency
must strictly comply with all the following requirements:
1. Local Agency Local Agency shall submit a certification
that procurement of any Consultant contract complies
with the requirements of 23 C.F.R. 172.5 prior to
entering such Consultant contract, subject to the
State's approval. If not approved by the State, Local
Agency shall not enter 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 bills under the
Consultant contract comply with the State's
standardized billing format.
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 request to expedite any CDOT
approval of its procurement process and/or Consultant
contract by submitting a letter to CDOT from Local
Agency's attorney/authorized representative certifying
compliance with Exhibit H and 23 C.F.R. 172.5(b) and
(d).
iii. Construction
If the Work includes construction, Local Agency shall perform the
construction in accordance with the approved design Plans and/or
administer the construction in accordance with Exhibit E. Such
administration shall include, but is not necessarily limited to, Work
inspection and testing; approving sources of materials; performing
required plant and shop inspections; documentation of contract
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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 Exhibit E.
a. The State may, after providing written notice of the reason for
the suspension to Local Agency, suspend the Work, in whole
or in part, due to the failure of Local Agency or its Contractor
to correct conditions which are unsafe for workers or for such
periods as the State may deem necessary 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.
1. If the CDOT Engineer suspends the Work the
suspension will be lifted when the conditions that led
to the suspension are corrected. This requires the
Local Agency or its Contractor to submit a plan for
corrective measures to ensure the Work progresses
safely and satisfactorily in the future. The CDOT
Engineer will issue a notice to resume Work.
b. Local Agency shall be responsible for the following:
1. Appointing a qualified professional engineer, licensed
in the State of Colorado, as Local Agency Project
Engineer (LAPE), to perform engineering
administration. The LAPE shall administer the Work in
accordance with this Agreement, the requirements of
the construction contract and applicable State
procedures, as defined in the CDOT Local Agency
Manual.
2. For the construction Services, advertising the call for
bids, following its approval by the State, and awarding
the construction contract(s) to the lowest responsible
bidder(s).
a. All Local Agency's advertising and bid awards
pursuant to this Agreement shall comply with
applicable requirements of 23 U.S.C. §112 and
23 C.F.R. Parts 633 and 635 and C.R.S. § § 24-
92-101 et seq. Those requirements include,
without limitation, that Local Agency and its
Contractor(s) incorporate Form 1273 (Exhibit I)
in its entirety, verbatim, into any subcontract(s)
for Services as terms and conditions thereof, as
required by 23 C.F.R. 633.102(e).
b. Local Agency may accept or reject the proposal
of the apparent low bidder for Work on which
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competitive bids have been received. Local
Agency must accept or reject such bids within
three (3) working days after they are publicly
opened.
c. If Local Agency accepts bids and makes awards
that exceed the amount of available Agreement
Funds, Local Agency shall provide the
additional funds necessary to complete the
Work or not award such bids.
d. The requirements of §6.A.iii.b.2 also apply to
any advertising and bid awards made by the
State.
e. The State (and in some cases FHWA) must
approve in advance all Force Account
Construction, and Local Agency shall not initiate
any such Services until the State issues a
written Notice to Proceed to Local Agency.
iv. Right of Way (ROW) and Acquisition/Relocation
a. If Local Agency purchases a ROW for a State highway the
Local Agency shall convey the ROW to CDOT promptly
upon the completion of the project/construction.
b. Any acquisition/relocation activities shall comply with all
applicable Federal and State statutes and regulations,
including but not limited to, the Uniform Relocation Assistance
and Real Property Acquisition Policies Act of 1970, as
amended, 49 C.F.R. Part 24 (Uniform Relocation Assistance
and Real Property Acquisition Policies for Federal and
Federally Assisted Programs), as amended, CDOT's Right of
Way Manual, and CDOT's applicable Policy and Procedural
Directives.
c. The Parties' respective responsibilities for ensuring
compliance with acquisition, relocation and incidentals
depend on the level of Federal participation as detailed in
CDOT's Right of Way Manual, which is available at CDOT's
website or can be provided to Local Agency upon request;
however, the State always retains certain oversight
responsibilities.
d. The Parties' respective responsibilities at each level of
Federal participation in CDOT's Right of Way Manual, and
the State's reimbursement of Local Agency costs will be
determined pursuant the following categories:
1. Right of way acquisition (3111) for Federal
participation and non -participation;
2. Relocation activities, if applicable (3109); and
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3. Right of way incidentals, if applicable (expenses
incidental to acquisition/relocation of right of way
3114).
e. If Exhibit C indicates that funds are allocated to ROW, such
funds shall be transferred to CDOT's ROW division for
payment to Local Agency and processing as follows:
1. Local Agency shall use the appropriate Memorandum
of Agreement (MOA) for Local Agency Acquisition or
MOA for Temporary Easement/Local Agency
Acquisition forms for ROW acquisition (or such
agreements as amended);
2. Within 30 days or more prior to closure of the project
by CDOT, Local Agency shall submit to CDOT the
following (ROW Payment Packet):
a. Certificate of Cost of Right of Way Form
(executed by Local Agency);
b. CDOT Local Agency Reimbursement Request
Form (executed by Local Agency);
c. Fair Market Value (FMV) or Waiver Valuation
for each ROW acquisition;
d. Recommendation for Settlement, if applicable;
e. Copy of check or other proof of payment for
ROW;
f. Signed MOAs between Local Agency and land
owners;
g. Recorded Deeds and/or MOAs;
h. Parcel Negotiation Record and Agent's
Certificate; and
i. Copies of FMV Offer Letters.
All forms are available on CDOT's website at:
codot.gov/business/manuals/right-of-way-manual or can be
provided to Local Agency upon request.
3. If CDOT's ROW Manager accepts the ROW Payment
Packet, the ROW Manager shall countersign the
CDOT Local Agency Reimbursement Request Form
and Certificate of Cost of Right of Way Form;
4. CDOT ROW shall perform a successful TIN match for
issuance of the warrant; and
5. CDOT ROW shall submit a Warrant Request to the
CDOT Controller Delegate for approval of payment to
Local Agency. The CDOT Controller Delegate shall
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execute the Warrant Request prior to issuance of
payment to Local Agency for ROW.
v. Utilities
If necessary, Local Agency shall be responsible for obtaining all
proper clearance(s) and/or approval(s) from any utility company that
may become involved in the Work. Prior to the Work being advertised
for bids, Local Agency shall certify in writing to the State that all such
clearances and/or approvals have been obtained.
vi. Railroads
If the Work involves modification of a railroad company's facilities
and such modification will be accomplished by the railroad company,
Local Agency shall make timely application to the Public Utilities
Commission (PUC) requesting the PUC's order providing for the
installation of the proposed improvements. Local Agency shall not
proceed with that part of the Work before obtaining the PUC's order.
Local Agency shall also establish contact with the railroad company
involved for the purpose of complying with applicable provisions of
23 C.F.R. 646, subpart B, concerning Federal -aid projects involving
railroad facilities, and:
a. Execute an agreement with the railroad company setting out
what work is to be accomplished and the location(s) thereof,
and which costs shall be eligible for Federal participation.
b. Obtain the railroad's detailed estimate of the cost of the
Work.
c. Establish future maintenance responsibilities for the
proposed installation.
d. Proscribe in the agreement the future use or dispositions of
the proposed improvements in the event of abandonment or
elimination of a grade crossing.
e. Establish future repair and/or replacement responsibilities,
as between the railroad company and the Local Agency, in
the event of accidental destruction or damage to the
installation.
vii. Environmental Obligations
Local Agency shall perform all Work in accordance with the
requirements of current applicable Federal and State environmental
regulations, including but not limited to the National Environmental
Policy Act of 1969 (NEPA) as applicable.
viii. Maintenance Obligations
Local Agency shall maintain and operate the Work constructed under
this Agreement at its own cost and expense during the Work's useful
life, in a manner satisfactory to the State and FHWA. If the Work is
on a State Highway, Local Agency is responsible for all maintenance
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in accordance with the Division of Authority pursuant to C.R.S. §43-
2-135. Additionally, a separate Maintenance & Operations
Agreement may be entered into by the Parties. Local Agency shall
make proper provisions for such maintenance obligations each year.
Local Agency shall conduct such maintenance and operations in
accordance with all applicable statutes, ordinances, and regulations
pertaining to maintaining such improvements. The State and FHWA
may make periodic inspections to verify that such Work is being
adequately maintained.
ix. Monitoring Obligations
Local Agency shall respond in a timely manner to and participate
fully in the monitoring activities described in §7.F.vi.
B. State's Commitments
The State will perform a final project inspection of the Work as a
quality control/assurance activity. When all Work has been
satisfactorily completed, the State will sign the FHWA Form 1212.
ii. Notwithstanding any consents or approvals given by the State for the
Plans, the State shall not be liable or responsible in any manner for
the design, details or construction of any Work constituting major
structures designed by, or that are the responsibility of, Local
Agency, as identified in Exhibit E.
7. PAYMENTS
A. Maximum Amount
Payments to Local Agency are limited to the unpaid, obligated balance
subject to fund(s) availability of the Agreement Funds set forth in Exhibit
C. The State shall not pay Local Agency any amount under this
Agreement that exceeds the Agreement Maximum set forth in Exhibit C.
B. Payment Procedures
Invoices and Payment
a. The State shall pay Local Agency in the amounts and in
accordance with conditions set forth in Exhibit C.
b. Local Agency shall initiate payment requests by invoice to
the State, in a form and manner approved by the State.
c. The State shall pay each invoice within 45 days following the
State's receipt of that invoice, so long as the amount invoiced
correctly represents Work completed by Local Agency and
previously accepted by the State during the term that the
invoice covers. If the State determines that the amount of
any invoice is not correct, then Local Agency shall make all
changes necessary to correct that invoice. After a Local
Agency provides the State with a corrected and accepted
invoice, the State shall pay such corrected and accepted
invoice within 45 days.
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d. The acceptance of an invoice shall not constitute acceptance
of any Work performed or deliverables provided under the
Agreement.
e. If a project is funded in part with Federal and/or State Special
Funding there may be an expiration date for the funds. The
expiration date applies to Federal and/or State funds and
local funds used to match these funds as shown on Exhibit
A. To receive payment or credit for the match, Work (i) must
be completed or substantially completed, as outlined in the
terms of the grant, prior to the expiration date of the Special
Funding and (ii) invoiced in compliance with all the rules and
requirements outlined in the award applicable to of the
funding. The acceptance of an invoice shall not constitute
acceptance of any Work performed or deliverables
provided under the Agreement.
ii. Interest
Amounts not paid by the State within 45 days after the State's
acceptance of the invoice shall bear interest on the unpaid balance
beginning on the 46th day at the rate of 1% per month, as required
by C.R.S. §24-30-202(24)(a), until paid in full; provided, however,
that interest shall not accrue on unpaid amounts that the State
disputes in writing. Local Agency shall invoice the State separately
for accrued interest on delinquent amounts, and the invoice shall
reference the delinquent payment, the number of days interest to be
paid and the interest rate.
iii. Payment Disputes
If Local Agency disputes any calculation, determination, or amount
of any payment, Local Agency shall notify the State in writing of its
dispute within 30 days following the earlier occurrence of Local
Agency's receipt of the payment or notification of the determination
or calculation of the payment by the State. The State will review the
information presented by Local Agency and may make changes to
the State's determination based on this review. The calculation,
determination, or payment amount that results from the State's
review shall not be subject to additional dispute under this
subsection. No payment subject to a dispute under this subsection
shall be due until after the State has concluded its review, and the
State shall not pay any interest on any amount during the period it is
subject to dispute under this subsection.
iv. Available Funds -Contingency -Termination
a. The Parties are prohibited by law from making commitments
beyond the term of the current State Fiscal Year. In addition
to all other payment conditions and/or limitations included
within this Agreement and/or applicable law, any potential
Payment to Local Agency beyond the current State Fiscal
Year or fiscal year is expressly contingent on the
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appropriation and continuing availability of Agreement Funds
in any subsequent State Fiscal Year or fiscal year (as
provided in the Colorado Special Provisions). Payments to be
made pursuant to this Agreement shall be made only from
Agreement Funds, and the State's liability for such payments
shall be limited to the amount remaining of such Agreement
Funds. If State, Federal, or other funds are not appropriated,
or otherwise become unavailable to fund this Agreement, the
Parties may, upon written notice, terminate this Agreement, in
whole or in part, without incurring further liability. The Parties
shall, however, remain obligated to pay for Services, Goods,
and the Work that are delivered and accepted prior to the
effective date of notice of termination, and termination
pursuant to this §7.b.iv.a shall otherwise be treated as if this
Agreement were terminated in the public interest as described
in §13.A.
v. Erroneous Payments
The State may recover, at the State's sole discretion, payments
made to Local Agency in error for any reason, including, but not
limited to, overpayments or improper payments, and unexpended or
excess funds received by Local Agency. The State may recover such
payments by deduction from subsequent payments under this
Agreement, deduction from any payment due under any other
contracts, grants, or agreements between the State and Local
Agency, or by any other appropriate method for collecting debts
owed to the State. The close out of a Federal Award does not affect
the right of FHWA or the State to disallow costs and recover funds
based on a later audit or other review. Any cost disallowance
recovery is to be made within the Record Retention Period (as
defined below in §9.A.).
vi. Federal Recovery
The close out of a Federal Award does not affect the right of the
Federal Awarding Agency or the State to disallow costs and recover
funds based on a later audit or other review. Any cost disallowance
recovery is to be made within the Record Retention Period, as
defined below.
C. Local Agency Funds
Local Agency shall provide its obligated contribution funds as outlined in
§7.A. and Exhibit C. Local Agency shall have raised and/or allocated the
full amount of its funds prior to the Agreement Effective Date and shall
report to the State regarding the status of such funds upon request. 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 Local
Agency and paid into Local Agency's treasury. Local Agency represents to
the State that the amount designated "Local Agency Funds" in Exhibit C
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has been legally appropriated for the purpose of this Agreement by its
authorized representatives and paid into its treasury. Local Agency may
evidence such obligation by an appropriate ordinance/resolution or other
authority letter expressly authorizing Local Agency to enter into this
Agreement and to expend its match share of the Work. A copy of any
ordinance/resolution or authority letter is attached hereto as Exhibit D if
applicable. Local Agency does not by this Agreement irrevocably pledge
present cash reserves for payments in future fiscal years, and this
Agreement is not intended to create a multiple -fiscal year debt of Local
Agency. Local Agency shall not pay or be liable for any claimed interest,
late charges, fees, taxes, or penalties of any nature, except as required by
Local Agency's laws or policies.
D. Reimbursement of Local Agency Costs
The State shall reimburse Local Agency's allowable costs, not exceeding
the Agreement Maximum amount set forth in Exhibit C, subject to fund(s)
availability, described in §7. However, any costs incurred by Local Agency
prior to the Agreement Effective Date shall not be reimbursed absent
specific allowance of pre -award costs and indication that the Federal Award
funding is retroactive. The State shall pay Local Agency for costs or
expenses incurred or performance by the Local Agency prior to the
Agreement Effective Date, only if (1) the Agreement Funds involve Federal
funding and (2) Federal laws, rules, and regulations applicable to the Work
provide for such retroactive payments to the Local Agency. Any such
retroactive payments shall comply with State Fiscal Rules and be made in
accordance with the provisions of this Agreement. The applicable principles
described in 2 C.F.R. Part 200 shall govern the State's obligation to
reimburse all costs incurred by Local Agency and submitted to the State for
reimbursement hereunder, and Local Agency shall comply with all such
principles. The State shall reimburse Local Agency for the Federal -aid share
of properly documented costs related to the Work after review and approval
thereof, subject to the provisions of this Agreement and Exhibit C. If this
Agreement involves State Funds, the State 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 State. State shall not pay or be liable for any claimed interest,
late charges, fees, taxes, or penalties of any nature, except as required by
State laws or policies. Local Agency costs for Work performed prior to the
Agreement Effective Date shall not be reimbursed absent specific
allowance of pre -award costs and indication that the Federal Award funding
is retroactive. Local Agency costs for Work performed after any
Performance Period End Date for a respective phase of the Work is not
reimbursable. Allowable costs shall be limited to the following:
i. Reasonable and necessary to accomplish the Work and for the
Goods and Services provided; and
ii. Actual net cost to Local Agency (i.e. the price paid minus any items
of value received by Local Agency that reduces the cost actually
incurred).
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E. Unilateral Modification of Agreement Funds Budget or Agreement/ Phase
Term by State Option Letter
The State may, at its sole discretion, issue an "Option Letter" to Local
Agency to add or modify Work phases in the Work schedule in Exhibit C if
such modifications do not increase total budgeted Agreement Funds. Such
Option Letters shall amend and update Exhibit C. Option Letters shall not
be deemed valid until signed by the State Controller or an authorized
delegate. This Option Letter is NOT a Notice to Proceed. Modification of
Exhibit C by unilateral Option Letter is permitted only in the specific
scenarios listed below in §7.E.i, ii, iii, and iv. The State will exercise such
options by providing Local Agency a fully executed Option Letter, in a form
substantially equivalent to Exhibit B. Such fully executed Option Letters will
be automatically incorporated into this Agreement.
Option to Begin a Phase and/or Increase or Decrease the
Encumbrance Amount
The State may require by Option Letter that Local Agency begin a
new Work phase that may include Design, Construction,
Environmental, Utilities, ROW Incidentals and/or Miscellaneous
Work (but may not include Right of Way Acquisition/Relocation or
Railroads) as detailed in Exhibit A. Such Option Letters may only
modify the other terms and conditions specifically enumerated in
§7.E.i, ii, iii, and/or iv as long as the Agreement Maximum Amount
remains the same. The State may also change the funding sources
if the amount budgeted remains the same and the Local Agency
contribution does not increase. The State may also issue an Option
Letter to increase and/or decrease the total encumbrance amount of
one (1) or more existing Work phases, Right of Way
Acquisition/Relocation, or Railroads, as long as the total amount of
budgeted Agreement Funds remains the same. This must be done
within 120 days of changing the encumbrance amount.
Option to Transfer Funds from One Phase to Another Phase.
The State may require or permit Local Agency to transfer Agreement
Funds from one (1) Work phase (Design, Construction,
Environmental, Utilities, ROW Incidentals or Miscellaneous) to
another phase. The Agreement Funds transferred from one (1) Work
phase to another are subject to the same terms and conditions stated
in the original Agreement with the total budgeted Agreement Funds
remaining the same. The State may unilaterally exercise this option
by providing a fully executed Option Letter to Local Agency, in a form
substantially equivalent to Exhibit B with an amended Exhibit C.
iii. Option to Exercise Options i and ii.
The State may require Local Agency to add a Work phase as detailed
in Exhibit A and encumber and transfer Agreement Funds from one
(1) Work phase to another. The addition of a Work phase and
encumbrance and transfer of Agreement Funds are subject to the
same terms and conditions stated in the original Agreement with the
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total budgeted Agreement Funds remaining the same. The State
may unilaterally exercise this option by providing a fully executed
Option Letter to Local Agency before the initial targeted start date of
the Work phase, in a form substantially equivalent to Exhibit B with
an amended Exhibit C.
iv. Option to Extend Agreement/Phase Term. The State, at its sole
discretion, shall have the option to extend the term of this Agreement
and/or update a Work Phase Performance Period, as outlined in
Exhibit C. To exercise this option, the State shall provide written
notice to the Local Agency in a form substantially equivalent to
Exhibit B with an amended Exhibit C.
F. Accounting
Local Agency shall establish and maintain accounting systems in
accordance with generally accepted accounting standards (a separate set
of accounts, or as a separate and integral part of its current accounting
scheme). Such accounting systems shall, at a minimum, provide as follows:
Local Agency Performing the Work
If Local Agency is performing the Work, Local Agency shall
document all allowable costs, including any approved Services
contributed by Local Agency or subcontractors, using payrolls, time
records, invoices, contracts, vouchers, and other applicable records.
ii. Local Agency -Checks or Draws
Checks issued or draws made by Local Agency shall be made or
drawn against properly signed vouchers detailing the purpose
thereof. Local Agency shall keep on file all checks, payrolls, invoices,
contracts, vouchers, orders, and other accounting documents in the
office of Local Agency, clearly identified, readily accessible, to the
extent feasible, separate, and apart from all other Work documents.
iii. State -Administrative Services
The State may perform any necessary administrative support
services required hereunder. Local Agency shall reimburse the State
for the costs of any such services from the budgeted Agreement
Funds as provided for in Exhibit C. If FHWA Agreement Funds are
or become unavailable, or if Local Agency terminates this Agreement
prior to the Work being approved by the State or otherwise
completed, then all actual incurred costs of such services and
assistance provided by the State shall be reimbursed to the State by
Local Agency at its sole expense.
iv. Local Agency -Invoices
Local Agency's invoices shall describe in detail the reimbursable
costs incurred by Local Agency for which it seeks reimbursement,
the dates such costs were incurred and the amounts thereof, and
Local Agency shall not submit more than one invoice per month.
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v. Invoicing Within 60 Days
The State shall not be liable to reimburse Local Agency for any costs
invoiced more than 60 days after the date on which the costs were
incurred, including costs included in Local Agency's final invoice. The
State may withhold final payment to Local Agency at the State's sole
discretion until completion of final audit by the State. Any costs
incurred by Local Agency that are not allowable under 2 C.F.R. Part
200 shall be Local Agency's responsibility, and the State will deduct
such disallowed costs from any payments due to Local Agency. The
State will not reimburse costs for Work performed after the
Performance Period End Date for a respective Work phase. The
State will not reimburse costs for Work performed prior to
Performance Period End Date, but for which an invoice is received
more than 60 days after the Performance Period End Date.
vi. Risk Assessment & Monitoring
Pursuant to 2 C.F.R. 200.331(b), CDOT will evaluate Local Agency's
risk of noncompliance with Federal statutes, regulations, and terms
and conditions of this Agreement. Local Agency shall complete a
Risk Assessment Form (Exhibit K) when that may be requested by
CDOT. The risk assessment is a quantitative and/or qualitative
determination of the potential for Local Agency's non-compliance
with the requirements of the Federal Award. The risk assessment will
evaluate some or all the following factors:
a. Experience: Factors associated with the experience and
history of the Subrecipient with the same or similar Federal
Awards or grants.
b. Monitoring/Audit: Factors associated with the results of the
Subrecipient's previous audits or monitoring visits, including
those performed by the Federal Awarding Agency, when the
Subrecipient also receives direct Federal funding. Include
audit results if Subrecipient receives single audit, where the
specific award being assessed was selected as a major
program.
c. Operation: Factors associated with the significant aspects of
the Subrecipient's operations, in which failure could impact
the Subrecipient's ability to perform and account for the
contracted goods or services.
d. Financial: Factors associated with the Subrecipient's financial
stability and ability to comply with financial requirements of the
Federal Award.
e. Internal Controls: Factors associated with safeguarding
assets and resources, deterring and detecting errors, fraud
and theft, ensuring accuracy and completeness of accounting
data, producing reliable and timely financial and management
information, and ensuring adherence to its policies and plans.
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f. Impact: Factors associated with the potential impact of a
Subrecipient's non-compliance to the overall success of the
program objectives.
g. Program Management: Factors associated with processes to
manage critical personnel, approved written procedures, and
knowledge of rules and regulations regarding Federal -aid
projects.
Following Local Agency's completion of the Risk Assessment Tool
(Exhibit K), CDOT will determine the level of monitoring it will apply
to Local Agency's performance of the Work. This risk assessment
may be re-evaluated after CDOT begins performing monitoring
activities.
G. Close Out
Local Agency shall close out this Award within 90 days after the Final Phase
Performance End Date or sooner termination of this Agreement. Close out
requires Local Agency's submission to the State of all deliverables defined
in this Agreement, and Local Agency's final reimbursement request or
invoice. The State will withhold 5% of allowable costs until all final
documentation has been submitted and accepted by the State as
substantially complete. Once final documentation has been received by the
State and payment has been made, any remaining funds can be liquidated
from the project. If FHWA, USDT or FTA has not closed this Federal Award
within one (1) year and 90 days after the Final Phase Performance End
Date due to Local Agency's failure to submit required documentation, then
Local Agency may be prohibited from applying for new Federal or State
Awards through the State until such documentation is submitted and
accepted. Additionally, the Local Agency will not be able to access any
funds on any new or existing projects until such documentation is submitted
and accepted.
8. REPORTING - NOTIFICATION
A. Quarterly Reports
In addition to any reports required pursuant to any exhibit, for any contract
having a term longer than three (3) months, Local Agency shall submit, on
a quarterly basis, a written report specifying progress made for each
specified performance measure and standard in this Agreement. Such
progress report shall be in accordance with the procedures developed and
prescribed by the State. Progress reports shall be submitted to the State
not later than 10 Business Days following the end of each calendar quarter
or at such time as otherwise specified by the State.
B. Litigation Reporting
If Local Agency is served with a pleading or other document in connection
with an action before a court or other administrative decision making body,
and such pleading or document relates to this Agreement or may affect
Local Agency's ability to perform its obligations under this Agreement, Local
Agency shall, within 10 days after being served or other receipt of such
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pleading or other document, notify the State of such action and deliver
copies of such pleading or document to the State's principal representative
identified on the Cover Page as noted in §17.
C. Performance and Final Status
Local Agency shall submit all financial, performance and other reports to
the State no later than 60 calendar days after the Final Phase Performance
End Date or sooner termination of this Agreement, containing an Evaluation
of Subrecipient's performance and the final status of Subrecipient's
obligations hereunder.
D. Violations Reporting
Local Agency must disclose, in a timely manner, in writing to the State and
FHWA, all violations of Federal or State criminal law involving fraud, bribery,
or gratuity violations potentially affecting the Federal Award. Penalties for
noncompliance may include suspension or debarment (2 C.F.R. Part 180
OMB Guidelines to Agencies on Government -Wide Debarment and
Suspension).
E. Federal Funding Accountability and Transparency Act (FFATA) Reporting
Local Agency shall submit Executive Compensation Information according
to 2 CFR Part 170, Appendix A as may be amended from time to time.
9. LOCAL AGENCY RECORDS
A. Maintenance
Local Agency shall make, keep, maintain, and allow inspection and
monitoring by the State of a complete file of all records, documents,
communications, notes and other written materials, electronic media files,
and communications, pertaining in any manner to the Work or the delivery
of Services (including, but not limited to the operation of programs) or
Goods hereunder. Local Agency shall maintain such records for a period
(Record Retention Period) pursuant to the requirements of the funding
source and for a minimum of three (3) years following the date of
submission to the State of the final expenditure report, whichever is longer,
or if this Award is renewed quarterly or annually, from the date of the
submission of each quarterly or annual report, respectively. If any litigation,
claim, or audit related to this Award starts before expiration of the Record
Retention Period, the Record Retention Period shall extend until all
litigation, claims, or audit findings have been resolved and final action taken
by the State or Federal Awarding Agency. The Federal Awarding Agency,
a cognizant agency for audit, oversight or indirect costs, and the State, may
notify Local Agency in writing that the Record Retention Period shall be
extended. For records for real property and equipment, the Record
Retention Period shall extend three (3) years following final disposition of
such property.
B. Inspection
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Records during the Record Retention Period. Local Agency shall make
Local Agency Records available during normal business hours at Local
Agency's office or place of business, or at other mutually agreed upon times
or locations, upon no fewer than two (2) Business Days' notice from the
State, unless the State determines that a shorter period of notice, or no
notice, is necessary to protect the interests of the State.
C. Monitoring
The State will monitor Local Agency's performance of its obligations under
this Agreement using procedures as determined by the State. The State
shall monitor Local Agency's performance in a manner that does not unduly
interfere with Local Agency's performance of the Work. Local Agency shall
allow the State to perform all monitoring required by the Uniform Guidance,
based on the State's risk analysis of Local Agency. The State shall have the
right, in its sole discretion, to change its monitoring procedures and
requirements at any time during the term of this Agreement. If Local Agency
enters into a subcontract with an entity that would also be considered a
Subrecipient, then the subcontract entered into by Local Agency shall
contain provisions permitting both Local Agency and the State to perform
all monitoring of that Subcontractor in accordance with the Uniform
Guidance.
D. Final Audit Report
Local Agency shall promptly submit to the State a copy of any final audit
report of an audit performed on Local Agency's records that relates to or
affects this Agreement or the Work, whether the audit is conducted by Local
Agency or a third party. Additionally, if Local Agency is required to perform
a single audit under 2 C.F.R. 200.501, et seq., then Local Agency shall
submit a copy of the results of that audit to the State within the same timeline
as the submission to the Federal government.
10. CONFIDENTIAL INFORMATION -STATE RECORDS
A. Confidentiality
Local Agency shall hold and maintain, and cause all Subcontractors to hold
and maintain, any and all State Records that the State provides or makes
available to Local Agency for the sole and exclusive benefit of the State,
unless those State Records are otherwise publicly available at the time of
disclosure or are subject to disclosure by Local Agency under CORA. Local
Agency shall not, without prior written approval of the State, use for Local
Agency's own benefit, publish, copy, or otherwise disclose to any third party,
or permit the use by any third party for its benefit or to the detriment of the
State, any State Records, except as otherwise stated in this Agreement.
Local Agency shall provide for the security of all State Confidential
Information in accordance with all policies promulgated by the Colorado
Office of Information Security and all applicable laws, rules, policies,
publications, and guidelines. Local Agency shall immediately forward any
request or demand for State Records to the State's principal representative.
Local Agency shall immediately forward any request or demand for State
Records to the State's principal representative.
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B. Other Entity Access and Nondisclosure Agreements
Local Agency may provide State Records to its agents, employees, assigns
and Subcontractors as necessary to perform the Work, but shall restrict
access to State Confidential Information to those agents, employees,
assigns and Subcontractors who require access to perform their obligations
under this Agreement. Local Agency shall ensure all such agents,
employees, assigns, and Subcontractors sign nondisclosure agreements
with provisions at least as protective as those in this Agreement, and that
the nondisclosure agreements are always in force the agent, employee,
assign, or Subcontractor has access to any State Confidential Information.
Local Agency shall provide copies of those signed nondisclosure
agreements to the State upon request.
C. Use, Security, and Retention
Local Agency shall use, hold, and maintain State Confidential Information
in compliance with any and all applicable laws and regulations in facilities
located within the United States and shall maintain a secure environment
that ensures confidentiality of all State Confidential Information wherever
located. Local Agency shall provide the State with access, subject to Local
Agency's reasonable security requirements, for purposes of inspecting and
monitoring access and use of State Confidential Information and evaluating
security control effectiveness. Upon the expiration or termination of this
Agreement, Local Agency shall return State Records provided to Local
Agency or destroy such State Records and certify to the State that it has
done so, as directed by the State. If Local Agency is prevented by law or
regulation from returning or destroying State Confidential Information, Local
Agency warrants it will guarantee the confidentiality of, and cease to use,
such State Confidential Information.
D. Incident Notice and Remediation
If Local Agency becomes aware of any Incident, it shall notify the State
immediately and cooperate with the State regarding recovery, remediation,
and the necessity to involve law enforcement, as determined by the State.
Unless Local Agency can establish that none of Local Agency or any of its
agents, employees, assigns, or Subcontractors are the cause or source of
the Incident, Local Agency shall be responsible for the cost of notifying each
person who may have been impacted by the Incident. After an Incident,
Local Agency shall take steps to reduce the risk of incurring a similar type
of Incident in the future as directed by the State, which may include, but is
not limited to, developing, and implementing a remediation plan that is
approved by the State at no additional cost to the State.
E. Data Protection and Handling
Local Agency shall ensure that all State Records and Work Product in the
possession of Local Agency or any Subcontractors are protected and
handled in accordance with the requirements of this Agreement, including
the requirements of any Exhibits hereto, at all times.
F. Safeguarding Personally Identifying Information (PII)
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If Local Agency or any of its Subcontracts will or may receive PII under this
Agreement, Local Agency shall provide for the security for such P11, in a
manner and form acceptable to the State, including, without limitation, State
non -disclosure requirements, use of appropriate technology, security
practices, computer access security, data access security, data storage
encryption, data transmission encryption, security inspections, and audits.
Local Agency shall be a "Third Party Service Provider" as defined in C.R.S.
§24-73-103(1)(i), and shall maintain security procedures and practices
consistent with C.R.S. §§24-73-101 et seq. In addition, as set forth in C.R.S.
§24-74-102, et seq., Local Agency and Contractor, including, but not limited
to, Local Agency and Contractor's employees, agents, and Subcontractors,
agrees not to share any PII with any third parties for the purpose of
investigating for, participating in, cooperating with, or assisting with Federal
immigration enforcement.
11. CONFLICTS OF INTEREST
A. Actual Conflicts of Interest
Local Agency shall not engage in any business or activities or maintain any
relationships that conflict in any way with the full performance of the
obligations of Local Agency under this Agreement. Such a conflict of interest
would arise when a Local Agency or Subcontractor's employee, officer or
agent were to offer or provide any tangible personal benefit to an employee
of the State, or any member of his or her immediate family or his or her
partner, related to the award of, entry into or management or oversight of
this Agreement. Officers, employees, and agents of Local Agency may
neither solicit nor accept gratuities, favors or anything of monetary value
from contractors or parties to subcontracts.
B. Apparent Conflicts of Interest
Local Agency acknowledges that, with respect to this Agreement, even the
appearance of a conflict of interest shall be harmful to the State's interests.
Absent the State's prior written approval, Local Agency shall refrain from
any practices, activities or relationships that reasonably appear to be in
conflict with the full performance of Local Agency's obligations under this
Agreement.
C. Disclosure to the State
If a conflict or the appearance of a conflict arises, or if Local Agency is
uncertain whether a conflict or the appearance of a conflict has arisen, Local
Agency shall submit to the State a disclosure statement setting forth the
relevant details for the State's consideration. Failure to promptly submit a
disclosure statement or to follow the State's direction regarding the actual
or apparent conflict constitutes a Breach of Agreement.
D. Acknowledgement
Local Agency acknowledges that all State employees are subject to the
ethical principles described in C.R.S. §24-18-105. Local Agency further
acknowledges that State employees may be subject to the requirements of
C.R.S. §24-18-105 with regard to this Agreement.
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12. INSURANCE
Local Agency shall obtain and maintain and ensure that each Contactor,
Consultant, and Subcontractor shall obtain and maintain, insurance as specified in
this section at all times during the term of this Agreement. All insurance policies
required by this Agreement that are not provided through self-insurance shall be
issued by insurance companies with an AM Best rating of A -VIII or better.
A. Local Agency Insurance
Local Agency is a "public entity" within the meaning of the Colorado
Governmental Immunity Act, C.R.S. §24-10-101, et seq., (GIA) and 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.
B. Contractor, Consultant, and Subcontractor Requirements
Local Agency shall ensure that each Contractor, Consultant, and
Subcontractor that is a public entity within the meaning of the GIA, maintains
at all times during the terms of this Agreement, such liability insurance, by
commercial policy or self-insurance, as is necessary to meet the Contractor
and Subcontractor's obligations under the GIA. Local Agency shall ensure
that each Contractor and Subcontractor that is not a public entity within the
meaning of the GIA, maintains at all times during the terms of this
Agreement all of the following insurance policies:
Workers' Compensation
Workers' compensation insurance as required by state statute, and
employers' liability insurance covering all Local Agency or
Subcontractor employees acting within the course and scope of their
employment.
General Liability
Commercial general liability insurance written on an Insurance
Services Office occurrence form, covering premises operations, fire
damage, independent contractors, products and completed
operations, blanket contractual liability, personal injury, and
advertising liability with minimum limits depending on the amount of
the Agreement Maximum Amount including any Amendments.
a. Agreements $50,000,000 or less:
$1,000,000 each occurrence;
2. $2,000,000 general aggregate;
3. $2,000,000 products
aggregate; and
4. $50,000 any one (1) fire.
and completed operations
5. Completed Operations coverage shall be provided for
a minimum period of one (1) year following final
acceptance of work. If any aggregate limit is reduced
below $1,000,000 because of claims made or paid, the
Contractor shall immediately obtain additional
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insurance to restore the full aggregate limit and furnish
the certificate or other satisfactory document.
b. Agreements greater than $50,000,000 up to $100,000,000:
1. $5,000,000 each occurrence which may combined with
the umbrella insurance amount to reach the minimum
threshold;
2. $10,000,000 general aggregate which may combined
with the umbrella insurance amount to reach the
minimum threshold;
3. $2,000,000 products and completed operations
aggregate; and
4. $50,000 any one (1) fire.
5. Completed Operations coverage shall be provided for
a minimum period of one (1) year following final
acceptance of work. If any aggregate limit is reduced
below $1,000,000 because of claims made or paid, the
Contractor shall immediately obtain additional
insurance to restore the full aggregate limit and furnish
the certificate or other satisfactory document.
c. Agreements greater than $100,000,000:
1. $10,000,000 each occurrence which may be combined
with the umbrella insurance amount to reach the
minimum threshold;
2. $20,000,000 general aggregate which may combined
with the umbrella insurance amount to reach the
minimum threshold;
3. $2,000,000 products and completed operations
aggregate; and
4. $50,000 any one (1) fire.
5. Completed Operations coverage shall be provided for
a minimum period of one (1) year following final
acceptance of work. If any aggregate limit is reduced
below $1,000,000 because of claims made or paid, the
Contractor shall immediately obtain additional
insurance to restore the full aggregate limit and furnish
the certificate or other satisfactory document.
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. Professional Liability Insurance (this insurance requirement only
applies if the Contractor, Consultant, and/or Subcontractor is
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providing professional services including, but not limited to,
engineering, architectural, landscape architectural, professional
surveying, industrial hygiene services, or any other commonly
understood professional service).
Professional liability insurance covering any damages caused by an
error, omission or any negligent act with minimum limits depending
on the amount of the Agreement Maximum Amount including any
Amendments.
a. Agreements $50,000,000 or less:
1. $1,000,000 each occurrence;
2. $1,000,000 general aggregate;
3. Each Contractor, Consultant, and Subcontractor that is
not a public entity within the meaning of this GIA shall
renew and maintain Professional Liability Insurance as
outlined above for a minimum of one year following
final acceptance of Work.
b. Agreements greater than $50,000,000 up to $100,000,000:
1. $5,000,000 each occurrence which may be combined
with the umbrella insurance amount to reach the
minimum threshold;
2. $10,000,000 general aggregate which may be
combined with the umbrella insurance amount to reach
the minimum threshold; and
3. Each Contractor, Consultant, and Subcontractor that is
not a public entity within the meaning of this GIA shall
renew and maintain Professional Liability Insurance as
outlined above for a minimum of one year following
final acceptance of Work.
c. Agreements greater than $100,000,000:
1. $10,000,000 each occurrence which may be combined
with the umbrella insurance amount to reach the
minimum threshold;
2. $20,000,000 general aggregate which may be
combined with the umbrella insurance amount to reach
the minimum threshold;
3. Each Contractor, Consultant, and Subcontractor that is
not a public entity within the meaning of this GIA shall
renew and maintain Professional Liability Insurance as
outlined above for a minimum of one year following
final acceptance of Work.
v. Umbrella or Excess Liability Insurance
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Umbrella or Excess Liability Insurance with minimum limits of
$1,000,000 or as needed to meet minimum threshold for general
liability insurance in 12.B.ii.b & c. This policy shall become primary
in the event the primary Liability Policy limits are impaired or
exhausted.
C. Additional Insured
The State shall be named as additional insured on all commercial general
liability policies (leases and construction contracts require additional
insured coverage for completed operations) and umbrella or excess liability
policies required of Local Agency's Contractors, Consultants, and
Subcontractors. In the event of cancellation of any commercial general
liability policy, the carrier shall provide at least 10 days prior written notice
to State.
D. Primacy of Coverage
Coverage required of Local Agency and each Contractor, Consultant, and
Subcontractor shall be primary over any insurance or self-insurance
program carried by Local Agency or the State.
E. Cancellation
All commercial insurance policies shall include provisions preventing
cancellation or non -renewal, except for cancellation based on non-payment
of premiums, without at least 30 days prior notice to Local Agency and Local
Agency shall forward such notice to the State in accordance with §17 within
seven (7) days of Local Agency's receipt of such notice.
F. Subrogation Waiver
All commercial insurance policies secured or maintained by Local Agency
or its Contractors, Consultants, and Subcontractors in relation to this
Agreement shall include clauses stating that each carrier shall waive all
rights of recovery under subrogation or otherwise against Local Agency or
the State, its agencies, institutions, organizations, officers, agents,
employees, and volunteers.
G. Certificates
For each commercial insurance plan provided by Local Agency under this
Agreement, Local Agency shall provide to the State certificates evidencing
Local Agency's insurance coverage required in this Agreement within seven
(7) Business Days following the Agreement Effective Date. Local Agency
shall provide to the State certificates evidencing Contractor, Consultant,
and Subcontractor insurance coverage required under this Agreement
within seven (7) Business Days following the Agreement Effective Date,
except that, if Local Agency's subcontract is not in effect as of the
Agreement Effective Date, Local Agency shall provide to the State
certificates showing Contractor, Consultant, and Subcontractor insurance
coverage required under this Agreement within seven (7) Business Days
following Local Agency's execution of the subcontract. No later than 15 days
before the expiration date of Local Agency's or any Contractor, Consultant,
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and Subcontractor's coverage, Local Agency shall deliver to the State
certificates of insurance evidencing renewals of coverage. At any other time
during the term of this Agreement, upon request by the State, Local Agency
shall, within seven (7) Business Days following the request by the State,
supply to the State evidence satisfactory to the State of compliance with the
provisions of this §12.
13. TERMINATION
A. Early Termination in the Public Interest
The State is entering into this Agreement to serve the public interest of the
State of Colorado. If this Agreement ceases to further the public interest of
the State or if State, Federal or other funds used for this Agreement are not
appropriated timely or otherwise become unavailable to fund this
Agreement the State, in its discretion, may terminate this Agreement in
whole or in part. This subsection shall not apply to a termination of this
Agreement by the State for Breach of Agreement by Local Agency, which
shall be governed by §14 of this Agreement.
Method and Content
The State shall notify Local Agency by providing written notice to
Local Agency of the termination and be in accordance with §17. The
notice shall specify the effective date of the termination and whether
it affects all or a portion of this Agreement.
Obligations and Rights
Upon receipt of a termination notice for termination in the public
interest, Local Agency shall be subject to §15.A.i.a.
Iii. Payments
If the State terminates this Agreement in the public interest, the State
shall pay Local Agency an amount equal to the percentage of the
total reimbursement payable under this Agreement that corresponds
to the percentage of Work satisfactorily completed and accepted, as
determined by the State, less payments previously made.
Additionally, if this Agreement is less than 60% completed, as
determined by the State, the State may reimburse Local Agency for
a portion of actual out-of-pocket expenses, not otherwise reimbursed
under this Agreement, incurred by Local Agency which are directly
attributable to the uncompleted portion of Local Agency's obligations,
provided that the sum of any and all reimbursement shall not exceed
the Agreement Maximum Amount specified on Exhibit C payable to
Local Agency hereunder.
B. Termination Due to Project Completion
This Agreement may be terminated early upon project completion after the
final invoice has been paid. The Local Agency must submit an invoice they
have indicated is the final invoice to CDOT. Once that invoice has been paid
any remaining funds can be liquidated from the project. The State shall
notify Local Agency by providing written notice to Local Agency of the
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termination in accordance with §17 of this Agreement. The notice shall
specify the effective date of the termination and will be the Agreement
Expiration Date.
C. Termination by Mutual Agreement
This Agreement may be terminated early if all Parties agree that this would
be in the best interest of the Parties. The Party initiating the termination shall
send a written request to the other Party requesting termination. Once this
request is received the State shall notify Local Agency by providing written
notice to Local Agency of the termination in accordance with §17 of this
Agreement. The notice shall include the request to terminate and specify
the effective date of the termination and will be the Agreement Expiration
Date.
D. Termination for Breach
In the event of Local Agency's uncured Breach of Agreement, the State may
terminate this entire Agreement or any part of this Agreement. Local Agency
shall continue performance of this Agreement to the extent not terminated,
if any. §14.
14. BREACH
Notice and Cure Period
In the event of a Breach of Agreement, the aggrieved Party shall give written notice
of breach to the other Party. If the notified Party does not cure the breach, at its
sole expense, within 30 days after the delivery of written notice, the Party may
exercise any of the remedies as described in §15 for that Party. Notwithstanding
any provision of this Agreement to the contrary, the State, in its discretion, need
not provide notice or a cure period and may immediately terminate this Agreement
in whole or in part or institute any other remedy in the Agreement to protect the
public interest of the State; or if Local Agency is debarred or suspended under
§24-109-105, C.R.S., the State, in its discretion, need not provide notice or cure
period and may terminate this Agreement in whole or in part or institute any other
remedy in this Agreement as of the date that the debarment or suspension takes
effect.
15. REMEDIES
A. State's Remedies
If Local Agency is in breach under any provision of this Agreement and fails
to cure such breach, the State, following the notice and cure period set forth
in §14, shall have all of the remedies listed in this §15.A. in addition to all
other remedies set forth in this Agreement or at law. The State may exercise
any or all of the remedies available to it, in its discretion, concurrently or
consecutively.
Remedies Involving Termination for Breach of Agreement
In the event of Local Agency's uncured breach and the State's notice
of termination, as set forth in §14, the Local Agency shall continue
performance of this Agreement to the extent not terminated, if any.
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a. Obligations and Rights
To the extent specified in any termination notice, Local
Agency shall not incur further obligations or render further
performance past the effective date of such notice and shall
terminate outstanding orders and subcontracts with third
parties. However, Local Agency shall complete and deliver to
the State all Work not canceled by the termination notice and
may incur obligations as necessary to do so within this
Agreement's terms. At the request of the State, Local Agency
shall assign to the State all Local Agency's rights, title, and
interest in and to such terminated orders or subcontracts.
Upon termination, Local Agency shall take timely, reasonable,
and necessary action to protect and preserve property in the
possession of Local Agency but in which the State has an
interest. At the State's request, Local Agency shall return
materials owned by the State in Local Agency's possession at
the time of any termination. Local Agency shall deliver all
completed Work Product and all Work Product that was in the
process of completion to the State at the State's request.
b. Payments
Notwithstanding anything to the contrary, the State shall only
pay Local Agency for accepted Work received as of the date
of termination. If, after termination by the State, the State
agrees that Local Agency was not in breach or that Local
Agency's action or inaction was excusable, such termination
shall be treated as a termination in the public interest, and the
rights and obligations of the Parties shall be as if this
Agreement had been terminated in the public interest under
§13.A.
c. Damages and Withholding
Notwithstanding any other remedial action by the State, Local
Agency shall remain liable to the State for any damages
sustained by the State in connection with any breach by Local
Agency, and the State may withhold payment to Local Agency
for the purpose of mitigating the State's damages until such
time as the exact amount of damages due to the State from
Local Agency is determined. The State may withhold any
amount that may be due Local Agency as the State deems
necessary to protect the State against loss including, without
limitation, loss as a result of outstanding liens and excess
costs incurred by the State in procuring from third parties
replacement Work as cover.
ii. Remedies Not Involving Termination
The State, in its discretion, may exercise one (1) or more of the
following additional remedies:
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a. Suspend Performance
Suspend Local Agency's performance with respect to all or
any portion of the Work pending corrective action as specified
by the State without entitling Local Agency to an adjustment
in price or cost or an adjustment in the performance schedule.
Local Agency shall promptly cease performing Work and
incurring costs in accordance with the State's directive, and
the State shall not be liable for costs incurred by Local Agency
after the suspension of performance.
b. Withhold Payment
Withhold payment to Local Agency until Local Agency
corrects its Work.
c. Deny Payment
Deny payment for Work not performed, or that due to Local
Agency's actions or inactions, cannot be performed or if they
were performed are reasonably of no value to the state;
provided, that any denial of payment shall be equal to the
value of the obligations not performed.
d. Removal
Demand immediate removal from the Work of any of Local
Agency's employees, agents, or Subcontractors from the
Work whom the State deems incompetent, careless,
insubordinate, unsuitable, or otherwise unacceptable or
whose continued relation to this Agreement is deemed by the
State to be contrary to the public interest or the State's best
interest.
e. Intellectual Property
If any Work infringes a patent, copyright, trademark, trade
secret, or other intellectual property right, Local Agency shall,
as approved by the State (a) secure that right to use such
Work for the State or Local Agency; (b) replace the Work with
non infringing Work or modify the Work so that it becomes non
infringing; or, (c) remove any infringing Work and refund the
amount paid for such Work to the State.
B. Local Agency's Remedies
If the State is in breach of any provision of this Agreement and does not
cure such breach, Local Agency, following the notice and cure period in §14
and the dispute resolution process in §16 shall have all remedies available
at law and equity.
16. DISPUTE RESOLUTION
A. Initial Resolution
Except as herein specifically provided otherwise, disputes concerning the
performance of this Agreement which cannot be resolved by the designated
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Agreement representatives shall be referred in writing to a senior
departmental management staff member designated by the State and a
senior manager designated by Local Agency for resolution.
B Resolutions of Controversies
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 CDOT. The decision
of the Chief Engineer will be final and conclusive unless, within 30 calendar
days after the date of receipt of a copy of such written decision, Local
Agency mails or otherwise furnishes to the State a written appeal addressed
to the Executive Director of CDOT. In connection with any appeal
proceeding under this clause, Local Agency shall be afforded an opportunity
to be heard and to offer evidence in support of its appeal. Pending final
decision of a dispute hereunder, Local Agency shall proceed diligently with
the performance of this Agreement in accordance with the Chief Engineer's
decision. The decision of the Executive Director or their 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.
17. NOTICES AND REPRESENTATIVES
Each individual identified as a Principal Representative on the Cover Page for this
Agreement shall be the Principal Representative of the designating Party. All
notices required or permitted to be given under this Agreement shall be in writing
and shall be delivered (i) by hand with receipt required, (ii) by certified or registered
mail to such Party's Principal Representative at the address set forth below or (iii)
as an email with read receipt requested to the Principal Representative at the email
address, if any, set forth below. If a Party delivers a notice to another through email
and the email is undeliverable, then, unless the Party has been provided with an
alternate email contact, the Party delivering the notice shall deliver the notice by
hand with receipt required or by certified or registered mail to such Party's Principal
Representative at the address set forth below. Either Party may change its
Principal Representative, its contact information, or any of its representatives
identified in an exhibit and its contact information by notice submitted in
accordance with this §17 without a formal amendment to this Agreement. Unless
otherwise provided in this Agreement, notices shall be effective upon delivery of
the written notice.
18. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION
A. Work Product
Local Agency hereby grants to the State a perpetual, irrevocable, non-
exclusive, royalty free license, with the right to sublicense, to make, use,
reproduce, distribute, perform, display, create derivatives of and otherwise
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exploit all intellectual property created by Local Agency or any
Subcontractors. Local Agency assigns to the State and its successors and
assigns, the entire right, title, and interest in and to all causes of action,
either in law or in equity, for past, present, or future infringement of
intellectual property rights related to the Work Product and all works based
on, derived from, or incorporating the Work Product. Whether or not Local
Agency is under contract with the State at the time, Local Agency shall
execute applications, assignments, and other documents, and shall render
all other reasonable assistance requested by the State, to enable the State
to secure patents, copyrights, licenses, and other intellectual property rights
related to the Work Product. The Parties intend the Work Product to be
works made for hire.
Copyrights
To the extent that the Work Product (or any portion of the Work
Product) would not be considered works made for hire under
applicable law, Local Agency hereby assigns to the State, the entire
right, title, and interest in and to copyrights in all Work Product and
all works based upon, derived from, or incorporating the Work
Product; all copyright applications, registrations, extensions, or
renewals relating to all Work Product and all works based upon,
derived from, or incorporating the Work Product; and all moral rights
or similar rights with respect to the Work Product throughout the
world. To the extent that Local Agency cannot make any of the
assignments required by this section, Local Agency hereby grants to
the State a perpetual, irrevocable, royalty -free license to use, modify,
copy, publish, display, perform, transfer, distribute, sell, and create
derivative works of the Work Product and all works based upon,
derived from, or incorporating the Work Product by all means and
methods and in any format now known or invented in the future. The
State may assign and license its rights under this license.
ii. Patents
In addition, Local Agency grants to the State (and to recipients of
Work Product distributed by or on behalf of the State) a perpetual,
worldwide, no -charge, royalty -free, irrevocable patent license to
make, have made, use, distribute, sell, offer for sale, import, transfer,
and otherwise utilize, operate, modify, and propagate the contents of
the Work Product. Such license applies only to those patent claims
licensable by Local Agency that are necessarily infringed by the
Work Product alone, or by the combination of the Work Product with
anything else used by the State.
iii. Assignments and Assistance
Whether or not the Local Agency is under Agreement with the State
at the time, Local Agency shall execute applications, assignments,
and other documents, and shall render all other reasonable
assistance requested by the State, to enable the State to secure
patents, copyrights, licenses, and other intellectual property rights
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related to the Work Product. The Parties intend the Work Product to
be works made for hire. Local Agency assigns to the State and its
successors and assigns, the entire right, title, and interest in and to
all causes of action, either in law or in equity, for past, present, or
future infringement of intellectual property rights related to the Work
Product and all works based on, derived from, or incorporating the
Work Product.
B. Exclusive Property of the State
Except to the extent specifically provided elsewhere in this Agreement, any
pre-existing State Records, State software, research, reports, studies,
photographs, negatives, or other documents, drawings, models, materials,
data, and information shall be the exclusive property of the State
(collectively, State Materials). Local Agency shall not use, willingly allow,
cause, or permit Work Product or State Materials to be used for any purpose
other than the performance of Local Agency's obligations in this Agreement
without the prior written consent of the State. Upon termination of this
Agreement for any reason, Local Agency shall provide all Work Product and
State Materials to the State in a form and manner as directed by the State.
C. Exclusive Property of Local Agency
Local Agency retains the exclusive rights, title, and ownership to any and
all pre-existing materials owned or licensed to Local Agency including, but
not limited to, all pre-existing software, licensed products, associated
source code, machine code, text images, audio and/or video, and third -party
materials, delivered by Local Agency under this Agreement, whether
incorporated in a Deliverable or necessary to use a Deliverable (collectively,
Local Agency Property). Local Agency Property shall be licensed to the
State as set forth in this Agreement or a State approved license agreement:
(i) entered into as exhibits to this Agreement, (ii) obtained by the State from
the applicable third -party vendor, or (iii) in the case of open source software,
the license terms set forth in the applicable open source license agreement.
19. GENERAL PROVISIONS
A. Assignment
Local Agency's rights and obligations under this Agreement are personal
and may not be transferred or assigned without the prior, written consent of
the State. Any attempt at assignment or transfer without such consent shall
be void. Any assignment or transfer of Local Agency's rights and obligations
approved by the State shall be subject to the provisions of this Agreement.
B. Captions and References
The captions and headings in this Agreement are for convenience of
reference only, and shall not be used to interpret, define, or limit its
provisions. All references in this Agreement to sections (whether spelled out
or using the § symbol), subsections, exhibits or other attachments, are
references to sections, subsections, exhibits, or other attachments
contained herein or incorporated as a part hereof, unless otherwise noted.
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C
D
E
F
G
H
Entire Understanding
This Agreement represents the complete integration of all understandings
between the Parties related to the Work, and all prior representations and
understandings related to the Work, oral or written, are merged into this
Agreement. Prior or contemporaneous additions, deletions, or other
changes to this Agreement shall not have any force or effect whatsoever,
unless embodied herein.
Modification
Except as otherwise provided in this Agreement, any modification to this
Agreement shall only be effective if agreed to in a formal amendment to this
Agreement, properly executed and approved in accordance with applicable
Colorado State law and State Fiscal Rules. Modifications permitted under
this Agreement, other than Agreement amendments, shall conform to the
policies promulgated by the Colorado State Controller.
Statutes, Regulations, Fiscal Rules, and Other Authority.
Any reference in this Agreement to a statute, regulation, State Fiscal Rule,
fiscal policy, or other authority shall be interpreted to refer to such authority
then current, as may have been changed or amended since the Agreement
Effective Date.
Digital Signatures
If any signatory signs this agreement using a digital signature in accordance
with the Colorado State Controller Agreement, Grant, and Purchase Order
Policies regarding the use of digital signatures issued under the State Fiscal
Rules, then any agreement or consent to use digital signatures within the
electronic system through which that signatory signed shall be incorporated
into this Agreement by reference.
Severability
The invalidity or unenforceability of any provision of this Agreement shall
not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect, provided that the
Parties can continue to perform their obligations under this Agreement in
accordance with the intent of the Agreement.
Survival of Certain Agreement Terms
Any provision of this Agreement that imposes an obligation on a Party after
termination or expiration of the Agreement shall survive the termination or
expiration of the Agreement and shall be enforceable by the other Party.
Specifically, §§6.A.viii, 9.A & B, 12 and 19.K shall survive termination or
expiration of this Agreement.
Third Party Beneficiaries
Except for the Parties' respective successors and assigns described in
§19.A, this Agreement does not and is not intended to confer any rights or
remedies upon any person or entity other than the Parties. Enforcement of
this Agreement and all rights and obligations hereunder are reserved solely
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to the Parties. Any services or benefits which third parties receive as a result
of this Agreement are incidental to the Agreement, and do not create any
rights for such third parties.
Waiver
A Party's failure or delay in exercising any right, power, or privilege under
this Agreement, whether explicit or by lack of enforcement, shall not operate
as a waiver, nor shall any single or partial exercise of any right, power, or
privilege preclude any other or further exercise of such right, power, or
privilege.
K. Indemnification
General Indemnification
Local Agency shall be responsible for its own actions and for the
actions of its own employees related to this Agreement. Local
Agency shall also cause its Contractors, Consultants, and any
Subcontractors to indemnify, save, and hold harmless the State, its
employees, agents and assignees, against any and all costs,
expenses, claims, damages, liabilities, court awards including costs,
expenses, and attorney fees and related costs, directly or indirectly
arising out of, resulting from or related to (in whole or in part) this
Agreement, any rights or interests granted pursuant to this
Agreement and other amounts (including attorneys' fees and related
costs) incurred as a result of any act or omission by Local Agency,
or its employees, agents, Contractors, Consultants, Subcontractors,
or assignees in connection with this Agreement. This provision shall
survive the termination of the Agreement.
Confidential Information Indemnification
Disclosure or use of State Confidential Information by Local Agency
or its contractors and any Contractors, Consultants, and
Subcontractors in violation of §10 may be cause for legal action by
third parties against Local Agency, the State, or their respective
agents. Local Agency shall be responsible for its own actions and for
the actions of its own employees related to this violation of §10. Local
Agency shall also cause its Contractors, Consultants, and any
Subcontractors to indemnify, save, and hold harmless CDOT, its
employees and agents, against any and all claims, damages, liability
and court awards including costs, expenses, and attorney fees and
related costs incurred by the State in relation to any act or omission
by Local Agency, or its employees, agents, assigns, or
Subcontractors in violation of §10. This provision shall survive the
termination of the Agreement.
iii. Intellectual Property Indemnification
Local Agency shall be responsible for its own actions and for the
actions of its own employees related to intellectual property of the
Work. Local Agency shall also cause its Contractors, Consultants,
and any Subcontractors to indemnify, save, and hold harmless the
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Indemnified Parties, against any and all costs, expenses, claims,
damages, liabilities, and other amounts (including attorneys' fees
and costs) incurred by the State in relation to any claim that any Work
infringes a patent, copyright, trademark, trade secret, or any other
intellectual property right. This provision shall survive the termination
of the Agreement.
iv. Accessibility Indemnification
Local Agency shall be responsible for its own actions and for the
actions of its own employees related to this Agreement. Local
Agency shall also cause its Contractors, Consultants, and any
Subcontractors to indemnify, save, hold harmless, and assume
liability on behalf of the State, its officers, employees, agents and
assignees (collectively the "Indemnified Parties"), for any and all
costs, expenses, claims, damages, liabilities, court awards, attorney
fees and related costs, and other amounts incurred by any of the
Indemnified Parties in relation to Contractor, Consultant, and/or
Subcontractor's noncompliance with §§24-85-101, et seq., C.R.S.,
or the Accessibility Standards for Individuals with a Disability as
established by the Office of Information Technology pursuant to
Section §24-85-103, C.R.S. State employees are considered third
parties for the purposes of this section.
L. Accessibility
i. Local Agency shall comply with the Accessibility Standards for
Individuals with a Disability, as adopted by the Office of Information
Technology pursuant to C.R.S. §24-85-103
ii. The State may require that the Local Agency's compliance with the
Accessibility Standards for Individuals with a Disability adopted by
the Office of Information Technology pursuant to §24-85-103 C.R.S.
is determined and tested by a qualified third party selected by the
State. The State may ask the Local Agency to review the selection
of the third party. Local Agency shall be responsible for all costs
associated with the third -party vendor's assessment. If Local Agency
is not in compliance as determined by the third -party vendor, at the
State's request and at the State's direction, Local Agency shall
promptly take all necessary actions to come into compliance using a
State -approved vendor, at no additional cost to the State.
M. Compliance with State and Federal Law, Regulations and Executive Orders
Local Agency shall comply with all State and Federal law, regulations,
executive orders, State and Federal Awarding Agency policies, procedures,
directives, and reporting requirements at all times during the term of this
Agreement.
20. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3)
These Special Provisions apply to all Agreements.
A. STATUTORY APPROVAL. §24-30-202(1) C.R.S.
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This Agreement shall not be valid until it has been approved by the Colorado
State Controller or designee. If this Agreement is for a Major Information
Technology Project, as defined in §24-37.5-102(19), C.R.S., then this
Agreement shall not be valid until it has been approved by the State's Chief
Information Officer or designee.
B. FUND AVAILABILITY. §24-30-202(5.5) C.R.S., applicable Local Agency
law, rule or regulation
Financial obligations of the Parties payable after the current State Fiscal
Year or fiscal year are contingent upon funds for that purpose being
appropriated, budgeted, and otherwise made available.
C. GOVERNMENTAL IMMUNITY.
Liability for claims for injuries to persons or property arising from the
negligence of the Parties, its departments, boards, commissions
committees, bureaus, offices, employees and officials shall be controlled
and limited by the provisions of the Colorado Governmental Immunity Act,
§24-10-101, etseq., C.R.S..; the Federal Tort Claims Act, 28 U.S.C. Pt. VI,
Ch. 171 and 28 U.S.C. 1346(b), and the State's risk management statutes,
§§24-30-1501, et seq. C.R.S. 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, contained in
these statutes.
D. INDEPENDENT CONTRACTOR
Local Agency shall perform its duties hereunder as an independent
contractor and not as an employee. Neither Local Agency nor any agent or
employee of Local Agency shall be deemed to be an agent or employee of
the State. 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. 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 Local Agency or any of its agents or employees. Local Agency
shall pay when due all applicable employment taxes and income taxes and
local head taxes incurred pursuant to this Agreement. Local Agency shall
(i) provide and keep in force workers' compensation and unemployment
compensation insurance in the amounts required by law, (ii) provide proof
thereof when requested by the State, and (iii) be solely responsible for its
acts and those of its employees and agents.
E. COMPLIANCE WITH LAW.
Local Agency shall 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.
F. CHOICE OF LAW, JURISDICTION, AND VENUE.
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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. All suits or
actions related to this Agreement shall be filed and proceedings held in the
State of Colorado and exclusive venue shall be in the City and County of
Denver.
G. PROHIBITED TERMS.
Any term included in this Agreement that requires the Parties to indemnify
or hold the Parties harmless; requires the Parties to agree to binding
arbitration; limits Parties' liability for damages resulting from death, bodily
injury, or damage to tangible property; or that conflicts with this provision in
any way shall be void ab initio. Nothing in this Agreement shall be construed
as a waiver of any provision of §24-106-109 C.R.S.
H. SOFTWARE PIRACY PROHIBITION.
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. Local
Agency hereby certifies and warrants that, during the term of this
Agreement and any extensions, 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 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.
I. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. §§24-18-
201 and 24-50-507 C.R.S.
The signatories aver that to their knowledge, no employee of the State has
any personal or beneficial interest whatsoever in the service or property
described in this Agreement. Local Agency has no interest and shall not
acquire any interest, direct or indirect, that would conflict in any manner or
degree with the performance of Local Agency's services and Local Agency
shall not employ any person having such known interests.
21. FEDERAL REQUIREMENTS
Local Agency and/or their Contractors, Consultants, and Subcontractors 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. Certain exhibits reference
Executive Orders (EO) that have been revoked and other revocations have been
proposed but not yet finalized. By way of example this is a non -exhaustive list:
Exhibit I, FHWA Form 1273, references EO 11246, which has been revoked. This
EO is also referenced in other exhibits. Exhibit J, Additional Federal Requirements,
Appendix E, references EO 12898, which has been revoked. Certain federal
regulatory changes related to this revocation have been proposed but not yet
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finalized. Similarly, E0 11375 (which had amended E0 11246) and E0 13166,
are referenced in exhibits and have been revoked. A summary of applicable
Federal provisions are attached hereto as Exhibit F, Exhibit I, Exhibit J, Exhibit
L, and Exhibit M and are hereby incorporated by this reference. It is incumbent
upon Local Agency and their Contractors, Consultants, and Subcontractors to stay
up to date on all applicable Federal and State laws, and their implementing
regulations, and E0s that have been or proposed to be revoked.
22. DISADVANTAGED BUSINESS ENTERPRISE (DBE)
Local Agency will comply with all requirements of Exhibit E and Exhibit G, Local
Agency Contract Administration Checklist, regarding DBE requirements for the
Work.
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EXHIBIT A
SCOPE OF WORK
Name of Project: Prairie & St Clair Imp
Project Number: SH0 M086-106
SubAccount #: 27194
General Description
The local agency shall be responsible for the construction of intersection improvements
at the intersection of Prairie Avenue and St. Clair Avenue, Project M086-106 (27194).
The construction planned will consist of traffic signal upgrade, sidewalk, handicap ramps,
and lighting.
By accepting funds for this Scope of Work, Local Agency acknowledges, understands,
and accepts the continuing responsibility for the safety of the traveling public after initial
acceptance of the project. Local Agency is responsible for maintaining and operating
the scope of work described in this Exhibit A constructed under this Agreement at
its own cost and expense during its useful life.
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EXHIBIT B
SAMPLE IGA OPTION LETTER
Date State Fiscal Year Option Letter No.
Project Code Original Agreement #
Vendor Name:
Option to unilaterally add phasing to include Design, Construction,
Environmental, Utilities, ROW incidentals or Miscellaneous and to update
encumbrance amount(s).
Option to unilaterally transfer funds from one phase to another phase.
Option to unilaterally add phasing to include Design, Construction,
Environmental, Utilities, ROW incidentals or Miscellaneous, to update
encumbrance amount(s), and to unilaterally transfer funds from one phase
to another phase.
Option to unilaterally extend the term of this Agreement and/or update a
Work Phase Performance Period and/or modify OMB Guidance.
Option A
In accordance with the terms of the original Agreement between the State of
Colorado, Department of Transportation and the Local Agency, the State
hereby exercises the option to authorize the Local Agency to add a phase
and to encumber funds for the phase based on changes in funding availability
and authorization. The total encumbrance is (or increased) by $0.00. A new
Exhibit C-1 is made part of the original Agreement and replaces Exhibit C.
Option B
In accordance with the terms of the original Agreement between the State of
Colorado, Department of Transportation and the Local Agency, the State
hereby exercises the option to transfer funds based on variance in actual
phase costs and original phase estimates. A new Exhibit C-1 is made part
of the original Agreement and replaces Exhibit C.
Option C
In accordance with the terms of the original Agreement between the State of
Colorado, Department of Transportation and the Local Agency, the State
hereby exercises the option to 1) release the Local Agency to begin a phase;
2) to encumber funds for the phase based upon changes in funding
availability and authorization; and 3) to transfer funds from phases based
on variance in actual phase costs and original phase estimates. A new
Exhibit C-1 is made part of the original Agreement and replaces Exhibit C.
Exhibit B- Page 1 of 2
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Option D
In accordance with the terms of the original Agreement between the State of
Colorado, Department of Transportation and the Local Agency, the State hereby
exercises the option extend the term of this Agreement and/or update a Work
Phase Performance Period and/or modify information required under the OMB
Uniform Guidance, as outlined in Exhibit C. This is made part of the original
Agreement and replaces the Expiration Date shown on the Signature and Cover
Page. Any updated version of Exhibit C shall be attached to any executed Option
Letter as Exhibit C-1 (with subsequent exhibits labeled C-2, C-3, etc.).
The effective date of this option letter is upon approval of the State Controller or
delegate.
STATE OF COLORADO
Jared S. Polis
Department of Transportation
By:
Keith Stefanik, P.E., Chief Engineer
(For) Shoshana M. Lew, Executive Director
Date:
ALL AGREEMENTS MUST BE APPROVED BY THE STATE CONTROLLER
CRS §24-30-202 requires the State Controller to approve all State
Agreements. This Agreement is not valid until signed and dated below by the
State Controller or delegate. Contractor is not authorized to begin
performance until such time. If the Local Agency begins performing prior
thereto, the State of Colorado is not obligated to pay the Local Agency for
such performance or for any goods and/or services provided hereunder.
STATE OF COLORADO
STATE CONTROLLER
Robert Jaros, CPA, MBA, JD
0
Colorado Department of Transportation
Date:
Exhibit B- Page 2 of 2
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Fed $ LA Work
EXHIBIT C - FUNDING PROVISIONS
City of Pueblo # SHO M086-106 (27194)
A. Cost of Work Estimate
The Local Agency has estimated the total cost of the Work to be $690,000.00, which is
to be funded as follows:
1. FUNDING
a. Federal Funds
(90% of HLZ Award)
b. Local Agency Funds
(10% of HLZ Award)
$621,000.00
$69,000.00
TOTAL FUNDS ALL SOURCES $690,000.00
2. OMB UNIFORM GUIDANCE
a. Federal Award
Identification Number (FAIN):
b. Name of Federal Awarding Agency:
c. Local Agency Unique Entity Identifier
d. Assistance Listing #
Highway Planning and Construction
Highway Safety Improvement Program
e. Is the Award for R&D?
f. Indirect Cost Rate (if applicable)
g. Amount of Federal Funds Obligated by this Action:
h. Amount of Federal Funds
Obligated to Date (including this Action):
TBD
FHWA
NJK3BNUDRHJ7
ALN 20.205
ALN 20.272
No
N/A
$0.00
$0.00
3. ESTIMATED PAYMENT TO LOCAL AGENCY
a. Federal Funds Budgeted $621,000.00
b. Less Estimated Federal Share of CDOT-Incurred Costs $0.00
TOTAL ESTIMATED PAYMENT TO LOCAL AGENCY 90% $621,000.00
TOTAL ESTIMATED FUNDING BY LOCAL AGENCY 10% $69,000.00
TOTAL PROJECT ESTIMATED FUNDING 100.00% $690,000.00
4. FOR CDOT ENCUMBRANCE PURPOSES
a. Total Encumbrance Amount
(Federal funds + Local Agency funds) $690,000.00
b. Less ROW Acquisition 3111 and/or ROW Relocation 3109 $0.00
NET TO BE ENCUMBERED BY CDOT IS AS FOLLOWS $690,000.00
Note: No funds are currently available. Design and Construction funds will become
available after execution of an Option letter (Exhibit B) or formal Amendment.
Exhibit C - Page 1 of 3
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Design 3020
WBS Element 27194.10.30 Performance Period Start*/End Date $0.00
TBD-TBD
Const. 3301
WBS Element 27194.20.10 Performance Period Start*/End Date $0.00
TBD-TBD
*The Local Agency should not begin work until all three (3) of the following are in place: 1)
Phase Performance Period Start Date; 2) the execution of the document encumbering
funds for the respective phase; and 3) Local Agency receipt of the official Notice to
Proceed. Any work performed before these three (3) milestones are achieved will not be
reimbursable.
B. Funding Ratios
The funding ratio for the Federal funds for this Work is 90% Federal funds to 10% Local
Agency funds, and this ratio applies only to the $690,000.00 that is eligible for Federal
funding. All other costs are borne by the Local Agency at 100%. If the total cost of
performance of the Work exceeds $690,000.00, and additional Federal funds are not
available, the Local Agency shall pay all such excess costs. If the total cost of
performance of the Work is less than $690,000.00, then the amounts of Local Agency
and Federal funds will be decreased in accordance with the funding ratio described in
Al. This applies to the entire scope of Work.
C. Maximum Amount Payable
The maximum amount payable to the Local Agency under this Agreement shall be
$621,000.00. For CDOT accounting purposes, the Federal funds of $621,000.00 and
the Local Agency funds of $69,000.00 will be encumbered for a total encumbrance of
$690,000.00. The total budget of this funding source is $690,000.00, unless this amount
is increased by an executed amendment before any increased cost is incurred. The total
cost of the Work is the best estimate available, based on the design data as approved
at the time of execution of this Agreement, and that any cost is subject to revisions
agreed to by the parties prior to bid and award. This applies to the entire scope of
Work.
D. Single Audit Act Amendment
All state and local government and non-profit organizations receiving $1,000,000 or
more from all funding sources defined as Federal Financial Assistance for Single Audit
Act Amendment purposes shall comply with the audit requirements of 2 CFR part 200,
subpart F (Audit Requirements). The Single Audit Act Amendment requirements
applicable to the Local Agency receiving Federal funds are as follows:
i. Expenditure less than $1,000,000
If the Local Agency expends less than $1,000,000 in Federal funds (all
Federal sources, not just Highway funds) in its fiscal year then this
requirement does not apply.
ii. Expenditure of $1,000,000 or more -Highway Funds Only
If the Local Agency expends $1,000,000 or more, in Federal funds, but only
received Federal Highway funds then a program specific audit shall be
performed. This audit will examine the "financial" procedures and processes for
this program area.
iii. Expenditure of $1,000,000 or more -Multiple Funding Sources
If the Local Agency expends $1,000,000 or more in Federal funds, and the
Exhibit C - Page 2 of 3
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Federal funds are from multiple sources (FTA, HUD, NPS, etc.) then the Single
Audit Act applies, which is an audit on the entire organization/entity.
iv. Independent CPA
Single Audit shall only be conducted by an independent CPA, not by an auditor
on staff. An audit is an allowable direct or indirect cost.
Exhibit C - Page 3 of 3
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Exhibit D: Local Agency Resolution
Ciily of
PUEBLO
m;µ
...w
Background Paper for Proposed
Ordinance
COUNCIL MEETING DATE: July 27, 2026
TO: President Mark Aliff and Members of City Council
CC: Mayor Heather Graham
VIA: Clyde Bishop, City Clerk
FROM: Andrew Hayes, Public Works Director
City Clerk's Office Item # R10
SUBJECT: AN ORDINANCE APPROVING AN INTERGOVERNMENTAL
AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO
MUNICIPAL CORPORATION, AND THE STATE OF COLORADO,
ACTING BY AND THROUGH THE COLORADO DEPARTMENT OF
TRANSPORTATION, PROJECT: SHO M086-106 (27194) PRAIRIE AND
ST CLAIR IMPROVEMENTS, ACCEPTING A GRANT IN THE AMOUNT
OF $621,000, ESTABLISHING PROJECT ACCOUNT C12616, CDOT
GRANT PRAIRIE & ST CLAIR, TRANSFERRING $69,000 FROM
PROJECT ACCOUNT HUAN01, STREET RESURFACING PROJECT
TO PROJECT ACCOUNT C12616, CDOT GRANT PRAIRIE & ST CLAIR
PROJECT, BUDGETING AND APPROPRIATING FUNDS IN THE
AMOUNT OF $690,000, AND AUTHORIZING THE MAYOR TO
EXECUTE SAME
SUMMARY:
This Ordinance approves an Intergovernmental Agreement ("IGA") between Pueblo, a
Colorado Municipal Corporation ("City") and the State of Colorado, Colorado
Department of Transportation ("CDOT") accepting a grant in the amount of
$621,000.00, creates Project Account C12616 for CDOT Grant Prairie & St Clair
Project, transfers $69,000.00 for the required 10% match from Project Account
HUAN01, and budgets and appropriates funds totaling $690,000.00 for the Project.
PREVIOUS COUNCIL ACTION:
Resolution 15519, dated February 26, 2024, awarded an Agreement for Professional
Engineering Services in the amount of $142,250.00 to Olsson, Inc., for Project 23-146,
Design for Intersection of Prairie and St. Clair.
Resolution 15613, dated April 22, 2024, rescinded an Agreement for Professional
Engineering Services with Olsson, Inc., awarded an Agreement for Professional
Engineering Services with JR Engineering, Inc., in the amount of $145,890.00 for
Exhibit D: Page 1 of 4
Docusign Envelope ID: 62CECE20-9011-8987-81 BB-9AC28C282C20
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Project No. 23-146, Design for Intersection of Prairie and St. Clair
BACKGROUND:
This Ordinance accepts the Highway Safety Improvements Program (SHO) grant award
for Prairie and St Clair Intersection Improvements.
The City submitted a grant to CDOT for the Prairie and St Clair Intersection
Improvements Project. Although Prairie Avenue and St. Clair Avenue is a signalized
intersection, the City identified this intersection as needing improvements due to the
abnormally high number of broadside and rear end vehicle crashes.
Prairie Avenue is a four -lane major arterial and St Clair functions as a minor arterial
(although it is built like a 2 -lane collector). The intersection of Prairie and St. Clair has
been on the City's Capital Improvement Plan since at least 2017, though it has never
been funded.
The Department of Public Works has reviewed and is familiar with the grant application,
award, and associated draft agreement, and to the best of our knowledge and belief,
the City has the present ability to comply with all monetary expenditures, special
conditions, certifications and assurances therein contained.
FINANCIAL IMPLICATIONS:
The matching funds in the amount of $69,000.00 will be transferred from Project
Account HUAN01, Street Resurfacing to Project Account C12616, CDOT Grant Prairie
& St Clair.
Funds in the amount of $690,000.00 shall be budgeted and appropriated for Project
Account C12616.
BOARD/COMMISSION RECOMMENDATION:
None.
STAKEHOLDER PROCESS:
None.
ALTERNATIVES:
Currently, there are no alternatives for completing the improvements without the
funding from the Highway Safety Improvement Program funds.
RECOMMENDATION:
Approve the Ordinance.
ATTACHMENTS:
1. Complete Draft OLA Pueblo (27194) 331003862 June 26, 2026
Exhibit D: Page 2 of 4
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
ORDINANCE NO. 11238
AN ORDINANCE APPROVING AN INTERGOVERNMENTAL
AGREEMENT BETWEEN THE CITY OF PUEBLO, A
COLORADO MUNICIPAL CORPORATION, AND THE STATE OF
COLORADO, ACTING BY AND THROUGH THE COLORADO
DEPARTMENT OF TRANSPORTATION, PROJECT: SHO M086-
106 (27194) PRAIRIE AND ST CLAIR IMPROVEMENTS,
ACCEPTING A GRANT IN THE AMOUNT OF $621,000,
ESTABLISHING PROJECT ACCOUNT C12616, CDOT GRANT
PRAIRIE & ST CLAIR, TRANSFERRING $69,000 FROM
PROJECT ACCOUNT HUAN01, STREET RESURFACING
PROJECT TO PROJECT ACCOUNT C12616, CDOT GRANT
PRAIRIE & ST CLAIR PROJECT, BUDGETING AND
APPROPRIATING FUNDS IN THE AMOUNT OF $690,000, AND
AUTHORIZING THE MAYOR TO EXECUTE SAME
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
Project Account C12616, CDOT Grant Prairie & St Clair Project, is hereby established.
SECTION 2.
The Intergovernmental Agreement ("IGA") between the City of Pueblo ("City"), a
Colorado Municipal Corporation, and the State of Colorado, acting with and through the
Colorado Department of Transportation ("CDOT"), Project: SHO M086-106 (27194), Prairie and
St Clair Intersection, a copy of which is attached hereto, having been approved as to form by
the City Attorney, is hereby approved.
SECTION 3.
Funds in the amount of $69,000.00 are hereby transferred from Project Account
HUAN01, Street Resurfacing to Project Account C12616, CDOT Grant Prairie & St Clair Project,
and budgeted and appropriated for the CDOT Grant Prairie & St Clair Project Account, C12616.
SECTION 4.
Subject to encumbrances by the Colorado State Department of Transportation, funds in
the amount of $621,000.00 are hereby budgeted and appropriated for the Prairie & St Clair
Intersection Imp into Project Account C12616.
SECTION 5.
The Mayor is authorized to execute and deliver the IGA in the name of the City of Pueblo
and the City Clerk is directed to affix the seal of the City thereto and attest same.
SECTION 6.
The officers of the City are authorized to perform any and all acts consistent with this
Ordinance and IGA to implement the policies and procedures described herein.
Exhibit D: Page 3 of 4
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
SECTION 7.
This Ordinance shall become effective on the date of final action by the Mayor and City
Council.
Action by City Council:
Introduced and initial adoption of Ordinance by City Council on July 13, 2026.
Final adoption of Ordinance by City Council on July 27, 2026. DocuSignedby:
President of City Council
Action by the Mayor:
Q Approved on
❑ Disapproved on
07/29/2026
based on the following objections:
Action by City Council After Disapproval by the Mayor:
❑ Council did not act to override the Mayor's veto.
❑ Ordinance re -adopted on a vote of
on
Mayor
❑ Council action on failed to override the Mayor's veto.
ATTEST 1.Docusignedby:
City Clerk
President of City Council
Exhibit D: Page 4 of 4
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Exhibit E
Colorado Department of Transportation
Local Agency Contract Administration Checklist
Project Number STIP Number Project Code Region
[SHO M086-106 ISR26644.120 1127194 02
Project Location Date
[Prairie Avenue and St. Clair Avenue H0911612025
Project Description
Intersection Improvements at Prairie and St. Clair Avenue
Local Agency Local Agency Project Manager
City of Pueblo Kelly Grisham
CDOT Resident Engineer CDOT Project Manager
Lachelle Davis Matt Pettit
Instructions:
This checklist shall be used to establish the contractual administrative responsibilities of the
individual parties to this agreement. The checklist becomes an attachment to the Local Agency
Agreement. Section numbers (No.) correspond to the applicable chapters of the CDOT Local
Agency Manual (formerly referred to as the Local Agency Desk Reference). Local Agency Web
Resource (LAWR) numbers correspond to the applicable flowchart in the Local Agency Web
Resource.
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. It is preferred
that only one responsible party be selected, however a number of items may have both parties
selected based on judgement. When neither CDOT nor the Local Agency is responsible for a task,
not applicable (N/A) shall be marked. In addition, # will be marked to denote that CDOT must
concur or approve.
The Regions, in accordance with established policies and procedures, will determine who will
perform tasks that are the responsibility of CDOT.
The checklist shall be prepared by the CDOT Resident Engineer or the CDOT Project Manager, in
cooperation with the Local Agency Project Manager, and submitted to the Region Program
Engineer. If contract administration responsibilities change, the CDOT Resident Engineer, in
cooperation with the Local Agency Project Manager, will prepare and distribute a revised
checklist.
Note:
Failure to comply with applicable Federal and State requirements may result in the loss of Federal
or State participation in funding.
Exhibit E: Page 1 of 10 CDOT Form 1243 8/24 Page 1 of 10
Previous editions are obsolete and may not be used.
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Acronyms:
Colorado Department of Transportation - CDOT
Disadvantaged Business Enterprise - DBE
Colorado Department of Transportation - CDOT
Disadvantaged Business Enterprise - DBE
Equal Employment Opportunity - EEO
Federal Highway Administration - FHWA
Field Inspection Review - FIR
Final Office Review - FOR
Hot Mix Asphalt - HMA
Independent Assurance Testing - IAT
Intergovernmental Agreement - IGA
Local Agency - LA
Local Agency Web Resource - LAWR
Not Applicable - N/A
Number - No.
On -The -Job - OJT
Plans, Specifications, and Estimate - PS6tE
Professional Engineer - PE
Right -of -Way - ROW
Statewide Transportation Improvement Program - STIP
Transportation Improvement Program - TIP
Previous editions are obsolete and may not be used.
Exhibit E: Page 2 of 10 CDOT Form 1243 8/24 Page 2 of 10
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
TIP / STIP Long -Range Plans
Responsible
Party
LAWR No. Description of Task
LA
CDOT
2.1 Review Project to ensure it is consistent with Statewide Plan and
0
OX
amendments thereto
Subrecipient Monitoring
Responsible
Party
LAWR No. Description of Task
LA
CDOT
3.1 Preparation of Subrecipient Monitoring Compliance Documents
• Subrecipient Determination Tool
0
0
• Subrecipient Risk Assessment
0
0
• Subrecipient Notification Letter
0
XD
• Subrecipient Project Update Report (Formerly
"Performance Report to CDOT")
XD
0
• CDOT Monitoring Report of Subrecipients (If applicable)
0
XD
Federal Funding Obligation and Authorization Responsible
Party
LAWR No. Description of Task LA CDOT
4.1 Authorize funding by phases (Requires FHWA Concurrence if 0 0
Federal -aid Highway funded project.). Please check N/A, if
Not applicable.
Project Development
Responsible
Party
LAWR
No.
Description of Task
LA
CDOT
5.1
Determine Delivery Method
0
0
1
5.2
Prepare Design Data - CDOT Form 463
0
0
5.3
Prepare Local Agency/CDOT Inter -Governmental Agreement (see
0
XD
also Chapter 3)
2
5.4
Conduct Consultant Selection/Execute Consultant Agreement
• Project Development
0
0
• Construction Contract Administration (including Fabrication
XD
0
Inspection Services)
3,3A
5.5
Conduct Design Scoping Review Meeting
0
0
3,6
5.6
Conduct Public Involvement
0
0
Exhibit E: Page 3 of 10 CDOT Form 1243 8/24 Page 3 of 10
Previous editions are obsolete and may not be used.
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
LAWR No. Description of Task
3 5.7 Conduct Field Inspection Review (FIR)
4 5.8 Conduct Environmental Process (may require FHWA concurrence
/involvement)
5
5.9
Acquire Right -of -Way (may require FHWA concurrence
/involvement)
3
5.10
Obtain Utility and Railroad Agreements
3
5.11
Conduct Final Office Review (FOR)
3A
5.12
Justify Force Account Work by the Local Agency
3B
5.13
Justify Proprietary, Sole Source, or Local Agency Furnished Items
3
5.14
Document Design Exceptions - CDOT Form 464
5.15
Seek Permission for use of Guaranty and Warranty Clauses
3
5.18
Prepare Plans, Specifications, Construction Cost Estimates and
Submittals
5.19
Comply with Requirements for Off -and On -System Bridges 6t
Other Structural Work
5.20
Update Approvals on PS6tE Package if Project Schedule Delayed
5.21
Ensure Authorization of Funds for Construction
5.22
Use Electronic Signatures
5.23
File Project Development Records/Documentation in ProjectWise
(PW)
Project
Development Civil Rights and Labor Compliance
LAWR No. Description of Task
3 6.1 Set Disadvantaged Business Enterprise (DBE) Goals for Consultant
and Construction Contracts (CDOT Region Civil Rights Office)
6.2 Determine Applicability of Davis -Bacon Act
This project is Vis 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.)
CDOT Resident Engineer Date
Lachelle Davis 09/16/2025
Responsible
Party
LA CDOT
0 0
0
0 0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
Responsible
Party
LA CDOT
0 0
0 0
Exhibit E: Page 4 of 10 CDOT Form 1243 8/24 Page 4 of 10
Previous editions are obsolete and may not be used.
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Responsible
Party
LAWR No.
Description of Task
LA
CDOT
6.3
Set On -the -Job Training Goals (CDOT Region Civil Rights Office)
0
OX
"NA", if Not Applicable
6.4
Enforce Prompt Payment Requirements
XD
6.5
Use Electronic Tracking and Submission Systems
0
0
B2Gnow ❑✓ LCPTracker ❑✓
3 6.6
Prepare/submit Title VI Plan and Incorporate Title VI Assurances
XD
6,7
Ensure the correct Federal Wage Decision, all required
0
Disadvantaged Business Enterprise/On-the-Job Training Special
provisions and FHWA Form 1273 are included in the Contract
(CDOT Resident Engineer)
Advertise, Bid and Award of Construction Projects
Responsible
Party
Federal Project (use 7.1 series in Chapter 7) ❑✓
Non -Federal Project (Use 7.2 series in Chapter 7) ❑
LAWR No. Description of Task LA CDOT
6,7 Obtain Approval for Advertisement Period of Less Than Three OX 0
Weeks
7
Advertise for Bids
0
0
7
Concurrence to Advertise
0
0
7
Distribute "Advertisement Set" of Plans and Specifications
OX
0
7
Review Worksite Et Plan Details w/ Prospective Bidders While
0
0
Project is Under Advertisement
7
Open Bids
0
0
7
Process Bids for Compliance
Check CDOT Form 1415 - Commitment Confirmation when the
Low bidder meets DBE goals. ("N/A" if Not Applicable)
Evaluate CDOT Form 1416 - Good Faith Effort Report and
determine if the Contractor has made a good faith effort when
the low bidder does not meet DBE goals. ("N/A" if Not Applicable)
Submit required documentation for CDOT award concurrence
0
0
Concurrence from CDOT to Award
0
0
Approve Rejection of Low Bidder
0
0
7,8
Award Contract (Federal)
0
0
8
Provide "Award" and "Record" Sets of Plans and Specifications
OX
0
(Federal)
Exhibit E: Page 5 of 10 CDOT Form 1243 8/24 Page 5
of 10
Previous
editions are obsolete and may not be used.
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Construction Management
Responsible
Party
LAWR No. Description of Task LA CDOT
8 Intro File Project Construction Records/Documentation in PW or as Directed 0 XD
8 8.1 Issue Notice to Proceed to the Contractor OX
8 8.2 Project Safety 0 0
8 8.3 Conduct Conferences
• Preconstruction Conference (Appendix B)
OX
0
o Fabrication Inspection Notifications
0
0
• Pre -Survey
OX
0
o Construction Staking
OX
0
o Monumentation
OX
0
• Partnering (Optional)
OX
0
• Structural Concrete Pre -Pour (Agenda is in the CDOT
0
Construction Manual)
• Concrete Pavement Pre -Paving (Agenda is in the CDOT
OX
0
Construction Manual)
• HMA Pre -Paving (Agenda is in the CDOT Construction Manual)
OX
0
8 8.4 Develop and distribute Public Notice of Planned Construction to
0
media and local residents
9 8.5 Supervise Construction
A Professional Engineer (PE) registered in Colorado, who will be
OX
0
"in responsible charge of construction supervision"
Local Agency Professional Engineer
or CDOT Resident Engineer Phone Number
Kelly Grisham 719-553-2295
Provide competent, experienced staff who will ensure the OX 0
Contract work is constructed in accordance with the plans
and specifications
Construction inspection and documentation (including 0
Projects with structures)
Fabrication Inspection and Documentation 0 0
9 8.6 Review and Approve Shop Drawings 0 0
9 8.7 Perform Traffic Control Inspections OX 0
9 8.8 Perform Construction Surveying 0 0
9 8.9 Monument Right -of -Way 0
Exhibit E: Page 6 of 10 CDOT Form 1243 8/24 Page 6 of 10
Previous editions are obsolete and may not be used.
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Responsible
Party
LAWR No. Description of Task LA CDOT
9,9A 8.10 Prepare and Approve Interim and Final Contractor Pay Estimates. 0 0
Collect and review CDOT Form 1418 (or equivalent) or use
compliance software system.
Provide the name and phone number of the person authorized for
this task.
Local Agency Representative Phone Number
Kelly Grisham 719-553-2295
9 8.11 Prepare and Approve Interim and Final Utility and Railroad Billings OX 0
9B 8.12 Prepare and Authorize Change Orders OX
9B 8.13 Submit Change Order Package to CDOT OX 0
9A 8.14 Prepare Local Agency Reimbursement Requests OX 0
9 8.15 Monitor Project Financial Status OX 0
9 8.16 Prepare and Submit Monthly Progress Reports OX 0
9 8.17 Resolve Contractor Claims and Disputes OX 0
8.18 Conduct Routine and Random Project Reviews 0 0
Provide the name and phone number of the person responsible
for this task.
CDOT Resident Engineer Phone Number
Lachelle Davis 719-595-9741
9 8.19 Ongoing Oversight of DBE Participation OX 0
Materials Responsible
Party
LAWR No. Description of Task LA CDOT
9,9C 9.1 Discuss Materials at Pre -Construction Meeting OX 0
• Buy America documentation required prior to Installation of 0
steel
• Buy America, Build America documentation required prior to 0
installation of materials
Exhibit E: Page 7 of 10 CDOT Form 1243 8/24 Page 7 of 10
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Responsible
Party
LAWR No.
Description of Task
LA
CDOT
9,9C 9.2
Complete CDOT Form 250 - Materials Documentation Record
• Generate form, which includes determining the Minimum
0
0
number of required tests and applicable Material submittals
for all materials placed on the project
• Update the form as work progresses
OX
0
• Complete and distribute form after work is completed
0
0
9C 9.3
Perform Project Acceptance Samples and Tests
OX
0
9C 9.4
Perform Laboratory Acceptance Tests
OX
0
9C 9.6
Accept Manufactured Products
OX
0
Inspection of structural components:
• Fabrication of structural steel and pre -stressed concrete
OX
0
structural components
• Bridge modular expansion devices (0" to 6" or greater)
OX
0
• Fabrication of bearing devices
0
0
9C 9.6
Approve Sources of Materials
0
0
9C 9.7
Independent Assurance Testing (IAT)
Local Agency Procedures ❑✓ CDOT Procedures ❑
• Generate IAT schedule
0
0
• Schedule and provide notification
OX
0
• Conduct IAT
0
0
9C 9.8
Approve mix designs
• Concrete
OX
0
• Hot Mix Asphalt
OX
0
9C 9.9
Check Final Materials Documentation
OX
0
9C 9.10
Complete and Distribute Final Materials Documentation
OX
0
Construction Civil Rights and Labor Compliance Responsible
Party
LAWR No. Description of Task LA CDOT
9 10.1 Fulfill Project Bulletin Board and Pre -Construction Packet XD 0
Requirements
Previous editions are obsolete and may not be used.
Exhibit E: Page 8 of 10 CDOT Form 1243 8/24 Page 8 of 10
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Responsible
Party
LAWR No.
Description of Task
LA
CDOT
8,9 10.2
Process CDOT Form 205 - Sublet Permit Application and CDOT
OX
Form 1425 - Supplier Application Approval Request. Review Et
sign completed forms, or review/approve in compliance software
system, as applicable, Et submit to Region Civil Rights Office.
9 10.3
Conduct Equal Employment Opportunity and Labor Compliance
0
0
Verification Employee Interviews. Complete CDOT Form 280
9 10.4
Monitor Disadvantaged Business Enterprise Participation to Ensure
OX
0
Compliance with the "Commercially Useful Function"
Requirements.
9 10.5
Conduct Interviews when Project Utilizes On -the -Job Trainees.
• Complete CDOT Form 1337 - Contractor Commitment to Meet
OX
0
OJT Requirements.
• Complete CDOT Form 838 - OJT Trainee / Apprentice Record.
OX
0
• Complete CDOT Form 200 - OJT Training Questionnaire.
0
0
9 10.6
Check Certified Payrolls (Contact the Region Civil Rights Office
OX
0
for training requirements)
9 10.7
Submit FHWA Form 1391 - Highway Construction Contractor's
OX
0
Annual EEO Report
10.8
Contract Compliance and Project Site Reviews
0
0
Finals
Responsible
Party
LAWR No.
Description of Task
LA
CDOT
11.1
Conduct Final Project Inspection Et Final Inspection of
0
0
Structures, if applicable
10 11.2
Write Final Project Acceptance Letter
0
0
10 11.3
Advertise for Final Settlement
0
0
11 11.4
Prepare and Distribute Final As -Constructed Plans
0
0
11 11.5
Prepare EEO Certification and Collect EEO Forms
0
0
11 11.6
Check Final Quantities, Plans, and Pay Estimate; Check Project
0
0
Documentation; and submit Final Certifications
11 11.7
Check Material Documentation and Accept Final Material
0
0
Certification (See Chapter 9)
11.8
Review CDOT Form 1419
0
0
11.9
Submit CDOT Professional Services Closeout Report Form
OX
0
Previous editions are obsolete and may not be used.
Exhibit E: Page 9 of 10 CDOT Form 1243 8/24 Page 9 of 10
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Responsible
Party
LAWR No.
Description of Task
LA
CDOT
11.10
Complete and Submit CDOT Form 1212 LA - Final Acceptance
0
XD
Report (by CDOT)
11 11.11
Process Final Payment
0
0
11.12
Close out Local Project
0
0
11.13
Complete and Submit CDOT Form 950 - Project Closure
0
0
11 11.14
Retain Project Records
0
0
11 11.15
Retain Final Version of Local Agency Contract Administration
0
0
Checklist
Cc: CDOT Resident Engineer/Project Manager
CDOT Region Program Engineer
CDOT Region Civil Rights Office
CDOT Region Materials Engineer
CDOT Contracts and Market Analysis Branch
Local Agency Project Manager
Previous editions are obsolete and may not be used.
Exhibit E: Page 10 of 10 CDOT Form 1243 8/24 Page 10 of 10
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
EXHIBIT F
CERTIFICATION FOR FEDERAL -AID CONTRACTS
The Local Agency certifies, by signing this Agreement, to the best
of its knowledge and belief, that:
No Federal appropriated funds have been paid or will be paid, by or on
behalf of the undersigned, to any person for influencing or attempting to
influence an officer or employee of any Federal agency, 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 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 agrees by submitting his or her bid or
proposal that he or she shall require that the language of this
certification be included in all lower tier subcontracts, which exceed
$100,000 and that all such sub- recipients shall certify and disclose
accordingly.
Exhibit F - Page 1 of 1
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
FXHIRIT ICS
DISADVANTAGED BUSINESS ENTERPRISES
SECTION 1. Policy
It is the policy of the Colorado Department of Transportation (CDOT) that Disadvantaged
Business Enterprises (DBEs) 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 26. Accordingly, CDOT's federally approved DBE
Program Plan shall apply to this agreement.
SECTION 2. Subrecipient and Participant Obligation.
The Local Agency and its subrecipients agrees to ensure that DBEs certified through the
Colorado Unified Certification Program 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.
All participants on contracts and subcontracts financed in whole or in part with Federal
funds provided under this Agreement shall take all necessary and reasonable steps in
accordance with the CDOT's federally approved DBE Program Plan to ensure that DBEs
have the maximum opportunity to compete for and perform contracts.
Local Agency subrecipients and their contractors shall not discriminate on the basis of
race, color, national origin, or sex in the award and performance of CDOT and federally
assisted contracts.
SECTION 3. DBE Program.
The Local Agency subrecipient shall be responsible for complying with CDOT's FHWA-
approved DBE Program Plan.
Local Agency requirements can be found at:
htts://www.codot.ov/business/civilrts
Exhibit G- Page 1 of 1
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
EXHIBIT H
LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES
Title 23 Code of Federal Regulations (CFR) Part 172 applies to a federally funded Local
Agency project agreement administered by CDOT that involves professional consultant
services. 23 CFR 172.1 states "The requirements herein apply to federally funded
contracts for engineering and design related services for projects subject to the provisions
of 23 U.S.C. 112(a) (related to construction) and are issued to ensure that a qualified
consultant is obtained through an equitable qualifications -based selection procurement
process, that prescribed work is properly accomplished in a timely manner, and at fair
and reasonable cost." Additionally, 23 CFR 172.7(a)(1)(iii)(C) states "In -State or local
preference shall not be used as a factor in the evaluation, ranking 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
manual titled "Obtaining Professional Consultant Services". This directive and manual
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 manual may be obtained upon
request from CDOT's Engineering Contract Services 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 manual
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:
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 Local Agency shall not advertise any federal aid contract without prior
review by the CDOT Regional Civil Rights Office (RCRO) to determine
whether the contract shall be subject to a DBE contract goal. If the RCRO
determines a goal is necessary, then the Local Agency shall include the
goal and the applicable provisions within the advertisement. The Local
Exhibit H - Page 1 of 3
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Agency shall not award a contract to any Contractor or Consultant without
the confirmation by the CDOT Civil Rights and Business Resource Center
that the Contractor or Consultant has demonstrated good faith efforts. The
Local Agency shall work with the CDOT RCRO to ensure compliance with
the established terms during the performance of the contract.
5. The Local Agency shall require that all contractors pay subcontractors for
satisfactory performance of work no later than 30 days after the receipt of
payment for that work from the contractor. For construction projects, this time
period shall be reduced to seven days in accordance with Colorado Revised
Statute 24-91-103(2). If the Local Agency withholds retainage from
contractors and/or allows contractors to withhold retainage from
subcontractors, such retainage provisions must comply with 49 CFR 26.29.
6. Payments to all Subconsultants shall be made within thirty days of receipt
of payment from [the Local Agency] or no later than ninety days from the
date of the submission of a complete invoice from the Subconsultant,
whichever occurs first. If the Consultant has good cause to dispute an
amount invoiced by a Subconsultant, the Consultant shall notify [the Local
Agency] no later than the required date for payment. Such notification shall
include the amount disputed and justification for the withholding. The
Consultant shall maintain records of payment that show amounts paid to all
Subconsultants. Good cause does not include the Consultant's failure to
submit an invoice to the Local Agency or to deposit payments made.
7. The analysis and selection of the consultants shall be done in accordance with
CRS §24-30-1403. This section of the regulation identifies the criteria to be
used in the evaluation of CDOT pre -qualified prime 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.
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,
Exhibit H - Page 2 of 3
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
f. Volume of previously awarded contracts, and
g. Involvement of minority consultants.
8. Once a consultant is selected, the Local Agency enters into negotiations with
the consultant to obtain a fair and reasonable price for the anticipated work.
Pre -negotiation audits are prepared for contracts expected to be greater
than $50,000. Federal reimbursements for costs are limited to those costs
allowable under the cost principles of 48 CFR 31. Fixed fees (profit) are
determined with consideration given to size, complexity, duration, and
degree of risk involved in the work. Profits are in the range of six (6) to 15
percent of the total direct and indirect costs.
9. 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.
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 NINE
(9) STEPS.
Exhibit H - Page 3 of 3
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF FHWA-1 273 — Revised October 23, 2023
EXHIBIT I
REQUIRED CONTRACT PROVISIONS FEDERAL -AID CONSTRUCTION CONTRACTS
I. General
II. Nondiscrimination
III. Non -segregated Facilities
IV. Davis -Bacon and Related Act Provisions
V. Contract Work Hours and Safety Standards Act
Provisions
VI. Subletting or Assigning the Contract
VII. Safety: Accident Prevention
VIII. False Statements Concerning Highway Projects
IX. Implementation of Clean Air Act and Federal Water
Pollution Control Act
X. Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion
XI. Certification Regarding Use of Contract Funds for
Lobbying
XII. Use of United States -Flag Vessels:
ATTACHMENTS
A. Employment and Materials Preference for Appalachian
Development Highway System or Appalachian Local Access
Road Contracts (included in Appalachian contracts only)
I WC] 4 0114:7e1I
1. Form FHWA-1 273 must be physically incorporated in each
construction contract funded under title 23, United States
Code, as required in 23 CFR 633.102(b) (excluding
emergency contracts solely intended for debris removal). The
contractor (or subcontractor) must insert this form in each
subcontract and further require its inclusion in all lower tier
subcontracts (excluding purchase orders, rental agreements
and other agreements for supplies or services). 23 CFR
633.102(e).
The applicable requirements of Form FHWA-1273 are
incorporated by reference for work done under any purchase
order, rental agreement or agreement for other services. The
prime contractor shall be responsible for compliance by any
subcontractor, lower -tier subcontractor or service provider. 23
CFR 633.102(e).
Form FHWA-1273 must be included in all Federal -aid design -
build contracts, in all subcontracts and in lower tier
subcontracts (excluding subcontracts for design services,
purchase orders, rental agreements and other agreements for
supplies or services) in accordance with 23 CFR 633.102. The
design -builder shall be responsible for compliance by any
subcontractor, lower -tier subcontractor or service provider.
Contracting agencies may reference Form FHWA-1273 in
solicitation -for -bids or request -for -proposals documents,
however, the Form FHWA-1273 must be physically
incorporated (not referenced) in all contracts, subcontracts and
lower -tier subcontracts (excluding purchase orders, rental
agreements and other agreements for supplies or services
related to a construction contract). 23 CFR 633.102(b).
2. Subject to the applicability criteria noted in the following
sections, these contract provisions shall apply to all work
performed on the contract by the contractor's own organization
and with the assistance of workers under the contractor's
immediate superintendence and to all work performed on the
contract by piecework, station work, or by subcontract. 23
CFR 633.102(d).
3. A breach of any of the stipulations contained in these
Required Contract Provisions may be sufficient grounds for
withholding of progress payments, withholding of final
payment, termination of the contract, suspension / debarment
or any other action determined to be appropriate by the
contracting agency and FHWA.
4. Selection of Labor: During the performance of this contract,
the contractor shall not use convict labor for any purpose
within the limits of a construction project on a Federal -aid
highway unless it is labor performed by convicts who are on
parole, supervised release, or probation. 23 U.S.C. 114(b).
The term Federal -aid highway does not include roadways
functionally classified as local roads or rural minor collectors.
23 U.S.C. 101(a).
II. NONDISCRIMINATION (23 CFR 230.107(a); 23 CFR Part
230, Subpart A, Appendix A; EO 11246)
The provisions of this section related to 23 CFR Part 230,
Subpart A, Appendix A are applicable to all Federal -aid
construction contracts and to all related construction
subcontracts of $10,000 or more. The provisions of 23 CFR
Part 230 are not applicable to material supply, engineering, or
architectural service contracts.
In addition, the contractor and all subcontractors must comply
with the following policies: Executive Order 11246, 41 CFR
Part 60, 29 CFR Parts 1625-1627, 23 U.S.C. 140, Section 504
of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794),
Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C.
2000d et seq.), and related regulations including 49 CFR Parts
21, 26, and 27; and 23 CFR Parts 200, 230, and 633.
The contractor and all subcontractors must comply with: the
requirements of the Equal Opportunity Clause in 41 CFR 60-
1.4(b) and, for all construction contracts exceeding $10,000,
the Standard Federal Equal Employment Opportunity
Construction Contract Specifications in 41 CFR 60-4.3.
Note: The U.S. Department of Labor has exclusive authority to
determine compliance with Executive Order 11246 and the
policies of the Secretary of Labor including 41 CFR Part 60,
and 29 CFR Parts 1625-1627. The contracting agency and
the FHWA have the authority and the responsibility to ensure
compliance with 23 U.S.C. 140, Section 504 of the
Rehabilitation Act of 1973, as amended (29 U.S.C. 794), and
Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C.
2000d et seq.), and related regulations including 49 CFR Parts
21, 26, and 27; and 23 CFR Parts 200, 230, and 633.
The following provision is adopted from 23 CFR Part 230,
Subpart A, Appendix A, with appropriate revisions to conform
to the U.S. Department of Labor (US DOL) and FHWA
requirements.
Exhibit I- Page 1 of 14
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
1. Equal Employment Opportunity: Equal Employment
Opportunity (EEO) requirements not to discriminate and to
take affirmative action to assure equal opportunity as set forth
under laws, executive orders, rules, regulations (see 28 CFR
Part 35, 29 CFR Part 1630, 29 CFR Parts 1625-1627, 41 CFR
Part 60 and 49 CFR Part 27) and orders of the Secretary of
Labor as modified by the provisions prescribed herein, and
imposed pursuant to 23 U.S.C. 140, shall constitute the EEO
and specific affirmative action standards for the contractor's
project activities under this contract. The provisions of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et
seq.) set forth under 28 CFR Part 35 and 29 CFR Part 1630
are incorporated by reference in this contract. In the execution
of this contract, the contractor agrees to comply with the
following minimum specific requirement activities of EEO:
a. The contractor will work with the contracting agency and
the Federal Government to ensure that it has made every
good faith effort to provide equal opportunity with respect to all
of its terms and conditions of employment and in their review
of activities under the contract. 23 CFR 230.409 (g)(4) & (5).
b. The contractor will accept as its operating policy the
following statement:
"It is the policy of this Company to assure that applicants
are employed, and that employees are treated during
employment, without regard to their race, religion, sex,
sexual orientation, gender identity, color, national origin, age
or disability. Such action shall include: employment,
upgrading, demotion, or transfer; recruitment or recruitment
advertising; layoff or termination; rates of pay or other forms
of compensation; and selection for training, including
apprenticeship, pre -apprenticeship, and/or on-the-job
training."
2. EEO Officer: The contractor will designate and make
known to the contracting officers an EEO Officer who will have
the responsibility for and must be capable of effectively
administering and promoting an active EEO program and who
must be assigned adequate authority and responsibility to do
so.
3. Dissemination of Policy: All members of the contractor's
staff who are authorized to hire, supervise, promote, and
discharge employees, or who recommend such action or are
substantially involved in such action, will be made fully
cognizant of and will implement the contractor's EEO policy
and contractual responsibilities to provide EEO in each grade
and classification of employment. To ensure that the above
agreement will be met, the following actions will be taken as a
minimum:
a. Periodic meetings of supervisory and personnel office
employees will be conducted before the start of work and then
not less often than once every six months, at which time the
contractor's EEO policy and its implementation will be
reviewed and explained. The meetings will be conducted by
the EEO Officer or other knowledgeable company official.
b. All new supervisory or personnel office employees will be
given a thorough indoctrination by the EEO Officer, covering
all major aspects of the contractor's EEO obligations within
thirty days following their reporting for duty with the contractor.
c. All personnel who are engaged in direct recruitment for
the project will be instructed by the EEO Officer in the
contractor's procedures for locating and hiring minorities and
women.
d. Notices and posters setting forth the contractor's EEO
policy will be placed in areas readily accessible to employees,
applicants for employment and potential employees.
e. The contractor's EEO policy and the procedures to
implement such policy will be brought to the attention of
employees by means of meetings, employee handbooks, or
other appropriate means.
4. Recruitment: When advertising for employees, the
contractor will include in all advertisements for employees the
notation: "An Equal Opportunity Employer." All such
advertisements will be placed in publications having a large
circulation among minorities and women in the area from
which the project work force would normally be derived.
a. The contractor will, unless precluded by a valid
bargaining agreement, conduct systematic and direct
recruitment through public and private employee referral
sources likely to yield qualified minorities and women. To
meet this requirement, the contractor will identify sources of
potential minority group employees and establish with such
identified sources procedures whereby minority and women
applicants may be referred to the contractor for employment
consideration.
b. In the event the contractor has a valid bargaining
agreement providing for exclusive hiring hall referrals, the
contractor is expected to observe the provisions of that
agreement to the extent that the system meets the contractor's
compliance with EEO contract provisions. Where
implementation of such an agreement has the effect of
discriminating against minorities or women, or obligates the
contractor to do the same, such implementation violates
Federal nondiscrimination provisions.
c. The contractor will encourage its present employees to
refer minorities and women as applicants for employment.
Information and procedures with regard to referring such
applicants will be discussed with employees.
5. Personnel Actions: Wages, working conditions, and
employee benefits shall be established and administered, and
personnel actions of every type, including hiring, upgrading,
promotion, transfer, demotion, layoff, and termination, shall be
taken without regard to race, color, religion, sex, sexual
orientation, gender identity, national origin, age or disability.
The following procedures shall be followed:
a. The contractor will conduct periodic inspections of project
sites to ensure that working conditions and employee facilities
do not indicate discriminatory treatment of project site
personnel.
b. The contractor will periodically evaluate the spread of
wages paid within each classification to determine any
evidence of discriminatory wage practices.
c. The contractor will periodically review selected personnel
actions in depth to determine whether there is evidence of
discrimination. Where evidence is found, the contractor will
promptly take corrective action. If the review indicates that the
discrimination may extend beyond the actions reviewed, such
corrective action shall include all affected persons.
d. The contractor will promptly investigate all complaints of
alleged discrimination made to the contractor in connection
with its obligations under this contract, will attempt to resolve
such complaints, and will take appropriate corrective action
Exhibit I- Page 2 of 14
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
within a reasonable time. If the investigation indicates that the
discrimination may affect persons other than the complainant,
such corrective action shall include such other persons. Upon
completion of each investigation, the contractor will inform
every complainant of all of their avenues of appeal.
6. Training and Promotion:
a. The contractor will assist in locating, qualifying, and
increasing the skills of minorities and women who are
applicants for employment or current employees. Such efforts
should be aimed at developing full journey level status
employees in the type of trade or job classification involved.
b. Consistent with the contractor's work force requirements
and as permissible under Federal and State regulations, the
contractor shall make full use of training programs (i.e.,
apprenticeship and on-the-job training programs for the
geographical area of contract performance). In the event a
special provision for training is provided under this contract,
this subparagraph will be superseded as indicated in the
special provision. The contracting agency may reserve
training positions for persons who receive welfare assistance
in accordance with 23 U.S.C. 140(a).
c. The contractor will advise employees and applicants for
employment of available training programs and entrance
requirements for each.
d. The contractor will periodically review the training and
promotion potential of employees who are minorities and
women and will encourage eligible employees to apply for
such training and promotion.
7. Unions: If the contractor relies in whole or in part upon
unions as a source of employees, the contractor will use good
faith efforts to obtain the cooperation of such unions to
increase opportunities for minorities and women. 23 CFR
230.409. Actions by the contractor, either directly or through a
contractor's association acting as agent, will include the
procedures set forth below:
a. The contractor will use good faith efforts to develop, in
cooperation with the unions, joint training programs aimed
toward qualifying more minorities and women for membership
in the unions and increasing the skills of minorities and women
so that they may qualify for higher paying employment.
b. The contractor will use good faith efforts to incorporate an
EEO clause into each union agreement to the end that such
union will be contractually bound to refer applicants without
regard to their race, color, religion, sex, sexual orientation,
gender identity, national origin, age, or disability.
c. The contractor is to obtain information as to the referral
practices and policies of the labor union except that to the
extent such information is within the exclusive possession of
the labor union and such labor union refuses to furnish such
information to the contractor, the contractor shall so certify to
the contracting agency and shall set forth what efforts have
been made to obtain such information.
d. In the event the union is unable to provide the contractor
with a reasonable flow of referrals within the time limit set forth
in the collective bargaining agreement, the contractor will,
through independent recruitment efforts, fill the employment
vacancies without regard to race, color, religion, sex, sexual
orientation, gender identity, national origin, age, or disability;
making full efforts to obtain qualified and/or qualifiable
minorities and women. The failure of a union to provide
sufficient referrals (even though it is obligated to provide
exclusive referrals under the terms of a collective bargaining
agreement) does not relieve the contractor from the
requirements of this paragraph. In the event the union referral
practice prevents the contractor from meeting the obligations
pursuant to Executive Order 11246, as amended, and these
special provisions, such contractor shall immediately notify the
contracting agency.
8. Reasonable Accommodation for Applicants /
Employees with Disabilities: The contractor must be familiar
with the requirements for and comply with the Americans with
Disabilities Act and all rules and regulations established
thereunder. Employers must provide reasonable
accommodation in all employment activities unless to do so
would cause an undue hardship.
9. Selection of Subcontractors, Procurement of Materials
and Leasing of Equipment: The contractor shall not
discriminate on the grounds of race, color, religion, sex, sexual
orientation, gender identity, national origin, age, or disability in
the selection and retention of subcontractors, including
procurement of materials and leases of equipment. The
contractor shall take all necessary and reasonable steps to
ensure nondiscrimination in the administration of this contract.
a. The contractor shall notify all potential subcontractors,
suppliers, and lessors of their EEO obligations under this
contract.
b. The contractor will use good faith efforts to ensure
subcontractor compliance with their EEO obligations.
10. Assurances Required:
a. The requirements of 49 CFR Part 26 and the State
DOT's FHWA-approved Disadvantaged Business Enterprise
(DBE) program are incorporated by reference.
b. The contractor, subrecipient or subcontractor shall not
discriminate on the basis of race, color, national origin, or sex
in the performance of this contract. The contractor shall carry
out applicable requirements of 49 CFR part 26 in the award
and administration of DOT -assisted contracts. Failure by the
contractor to carry out these requirements is a material breach
of this contract, which may result in the termination of this
contract or such other remedy as the recipient deems
appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the contractor from future bidding as non -
responsible.
c. The Title VI and nondiscrimination provisions of U.S.
DOT Order 1050.2A at Appendixes A and E are incorporated
by reference. 49 CFR Part 21.
11. Records and Reports: The contractor shall keep such
records as necessary to document compliance with the EEO
requirements. Such records shall be retained for a period of
three years following the date of the final payment to the
contractor for all contract work and shall be available at
reasonable times and places for inspection by authorized
representatives of the contracting agency and the FHWA.
a. The records kept by the contractor shall document the
following:
Exhibit I- Page 3 of 14
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
(1) The number and work hours of minority and non -
minority group members and women employed in each work
classification on the project;
(2) The progress and efforts being made in cooperation
with unions, when applicable, to increase employment
opportunities for minorities and women; and
(3) The progress and efforts being made in locating, hiring,
training, qualifying, and upgrading minorities and women.
b. The contractors and subcontractors will submit an annual
report to the contracting agency each July for the duration of
the project indicating the number of minority, women, and non -
minority group employees currently engaged in each work
classification required by the contract work. This information is
to be reported on Form FHWA-1391. The staffing data should
represent the project work force on board in all or any part of
the last payroll period preceding the end of July. If on-the-job
training is being required by special provision, the contractor
will be required to collect and report training data. The
employment data should reflect the work force on board during
all or any part of the last payroll period preceding the end of
July.
IIIA01IQ01&11xCIN=10ell941lyeCdl11111*1
This provision is applicable to all Federal -aid construction
contracts and to all related construction subcontracts of more
than $10,000. 41 CFR 60-1.5.
As prescribed by 41 CFR 60-1.8, the contractor must ensure
that facilities provided for employees are provided in such a
manner that segregation on the basis of race, color, religion,
sex, sexual orientation, gender identity, or national origin
cannot result. The contractor may neither require such
segregated use by written or oral policies nor tolerate such use
by employee custom. The contractor's obligation extends
further to ensure that its employees are not assigned to
perform their services at any location under the contractor's
control where the facilities are segregated. The term "facilities"
includes waiting rooms, work areas, restaurants and other
eating areas, time clocks, restrooms, washrooms, locker
rooms and other storage or dressing areas, parking lots,
drinking fountains, recreation or entertainment areas,
transportation, and housing provided for employees. The
contractor shall provide separate or single -user restrooms and
necessary dressing or sleeping areas to assure privacy
between sexes.
IDAWITJRE_YiCKe]011901117: 74Iell94lLCeld�:Z61T/1;�IC01<;.1
This section is applicable to all Federal -aid construction
projects exceeding $2,000 and to all related subcontracts and
lower -tier subcontracts (regardless of subcontract size), in
accordance with 29 CFR 5.5. The requirements apply to all
projects located within the right-of-way of a roadway that is
functionally classified as Federal -aid highway. 23 U.S.C. 113.
This excludes roadways functionally classified as local roads
or rural minor collectors, which are exempt. 23 U.S.C. 101.
Where applicable law requires that projects be treated as a
project on a Federal -aid highway, the provisions of this subpart
will apply regardless of the location of the project. Examples
include: Surface Transportation Block Grant Program projects
funded under 23 U.S.C. 133 [excluding recreational trails
projects], the Nationally Significant Freight and Highway
Projects funded under 23 U.S.C. 117, and National Highway
Freight Program projects funded under 23 U.S.C. 167.
The following provisions are from the U.S. Department of
Labor regulations in 29 CFR 5.5 "Contract provisions and
related matters" with minor revisions to conform to the FHWA-
1273 format and FHWA program requirements.
1. Minimum wages (29 CFR 5.5)
a. Wage rates and fringe benefits. All laborers and
mechanics employed or working upon the site of the work (or
otherwise working in construction or development of the
project under a development statute), will be paid
unconditionally and not less often than once a week, and
without subsequent deduction or rebate on any account
(except such payroll deductions as are permitted by
regulations issued by the Secretary of Labor under the
Copeland Act (29 CFR part 3)), the full amount of basic hourly
wages and bona fide fringe benefits (or cash equivalents
thereof) due at time of payment computed at rates not less
than those contained in the wage determination of the
Secretary of Labor which is attached hereto and made a part
hereof, regardless of any contractual relationship which may
be alleged to exist between the contractor and such laborers
and mechanics. As provided in paragraphs (d) and (e) of 29
CFR 5.5, the appropriate wage determinations are effective by
operation of law even if they have not been attached to the
contract. Contributions made or costs reasonably anticipated
for bona fide fringe benefits under the Davis -Bacon Act (40
U.S.C. 3141(2)(B)) on behalf of laborers or mechanics are
considered wages paid to such laborers or mechanics, subject
to the provisions of paragraph 1.e. of this section; also, regular
contributions made or costs incurred for more than a weekly
period (but not less often than quarterly) under plans, funds, or
programs which cover the particular weekly period, are
deemed to be constructively made or incurred during such
weekly period. Such laborers and mechanics must be paid the
appropriate wage rate and fringe benefits on the wage
determination for the classification(s) of work actually
performed, without regard to skill, except as provided in
paragraph 4. of this section. Laborers or mechanics performing
work in more than one classification may be compensated at
the rate specified for each classification for the time actually
worked therein: Provided, That the employer's payroll records
accurately set forth the time spent in each classification in
which work is performed. The wage determination (including
any additional classifications and wage rates conformed under
paragraph 1.c. of this section) and the Davis -Bacon poster
(WH-1 321) must be posted at all times by the contractor and
its subcontractors at the site of the work in a prominent and
accessible place where it can be easily seen by the workers.
b. Frequently recurring classifications. (1) In addition to wage
and fringe benefit rates that have been determined to be
prevailing under the procedures set forth in 29 CFR part 1, a
wage determination may contain, pursuant to § 1.3(f), wage
and fringe benefit rates for classifications of laborers and
mechanics for which conformance requests are regularly
submitted pursuant to paragraph 1.c. of this section, provided
that:
(i) The work performed by the classification is not
performed by a classification in the wage determination for
which a prevailing wage rate has been determined;
Exhibit I- Page 4 of 14
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
(ii) The classification is used in the area by the
construction industry; and
(iii) The wage rate for the classification bears a reasonable
relationship to the prevailing wage rates contained in the
wage determination.
(2) The Administrator will establish wage rates for such
classifications in accordance with paragraph 1.c.(1)(iii) of this
section. Work performed in such a classification must be paid
at no less than the wage and fringe benefit rate listed on the
wage determination for such classification.
c. Conformance. (1) The contracting officer must require that
any class of laborers or mechanics, including helpers, which is
not listed in the wage determination and which is to be
employed under the contract be classified in conformance with
the wage determination. Conformance of an additional
classification and wage rate and fringe benefits is appropriate
only when the following criteria have been met:
(i) The work to be performed by the classification
requested is not performed by a classification in the wage
determination; and
(ii) The classification is used in the area by the
construction industry; and
(iii) The proposed wage rate, including any bona fide fringe
benefits, bears a reasonable relationship to the wage rates
contained in the wage determination.
(2) The conformance process may not be used to split,
subdivide, or otherwise avoid application of classifications
listed in the wage determination.
(3) If the contractor and the laborers and mechanics to be
employed in the classification (if known), or their
representatives, and the contracting officer agree on the
classification and wage rate (including the amount designated
for fringe benefits where appropriate), a report of the action
taken will be sent by the contracting officer by email to
DBAconformance(o7dol.pov. The Administrator, or an
authorized representative, will approve, modify, or disapprove
every additional classification action within 30 days of receipt
and so advise the contracting officer or will notify the
contracting officer within the 30 —day period that additional time
is necessary.
(4) In the event the contractor, the laborers or mechanics to
be employed in the classification or their representatives, and
the contracting officer do not agree on the proposed
classification and wage rate (including the amount designated
for fringe benefits, where appropriate), the contracting officer
will, by email to ®BA conformance(o7dol.pov, refer the
questions, including the views of all interested parties and the
recommendation of the contracting officer, to the Administrator
for determination. The Administrator, or an authorized
representative, will issue a determination within 30 days of
receipt and so advise the contracting officer or will notify the
contracting officer within the 30 —day period that additional time
is necessary.
(5) The contracting officer must promptly notify the
contractor of the action taken by the Wage and Hour Division
under paragraphs 1.c.(3) and (4) of this section. The contractor
must furnish a written copy of such determination to each
affected worker or it must be posted as a part of the wage
determination. The wage rate (including fringe benefits where
appropriate) determined pursuant to paragraph 1.c.(3) or (4) of
this section must be paid to all workers performing work in the
classification under this contract from the first day on which
work is performed in the classification.
d. Fringe benefits not expressed as an hourly rate.
Whenever the minimum wage rate prescribed in the contract
for a class of laborers or mechanics includes a fringe benefit
which is not expressed as an hourly rate, the contractor may
either pay the benefit as stated in the wage determination or
may pay another bona fide fringe benefit or an hourly cash
equivalent thereof.
e. Unfunded plans. If the contractor does not make
payments to a trustee or other third person, the contractor may
consider as part of the wages of any laborer or mechanic the
amount of any costs reasonably anticipated in providing bona
fide fringe benefits under a plan or program, Provided, That
the Secretary of Labor has found, upon the written request of
the contractor, in accordance with the criteria set forth in
§ 5.28, that the applicable standards of the Davis -Bacon Act
have been met. The Secretary of Labor may require the
contractor to set aside in a separate account assets for the
meeting of obligations under the plan or program.
f. Interest. In the event of a failure to pay all or part of the
wages required by the contract, the contractor will be required
to pay interest on any underpayment of wages.
2. Withholding (29 CFR 5.5)
a. Withholding requirements. The contracting agency may,
upon its own action, or must, upon written request of an
authorized representative of the Department of Labor, withhold
or cause to be withheld from the contractor so much of the
accrued payments or advances as may be considered
necessary to satisfy the liabilities of the prime contractor or any
subcontractor for the full amount of wages and monetary relief,
including interest, required by the clauses set forth in this
section for violations of this contract, or to satisfy any such
liabilities required by any other Federal contract, or federally
assisted contract subject to Davis -Bacon labor standards, that
is held by the same prime contractor (as defined in § 5.2). The
necessary funds may be withheld from the contractor under
this contract, any other Federal contract with the same prime
contractor, or any other federally assisted contract that is
subject to Davis -Bacon labor standards requirements and is
held by the same prime contractor, regardless of whether the
other contract was awarded or assisted by the same agency,
and such funds may be used to satisfy the contractor liability
for which the funds were withheld. In the event of a
contractor's failure to pay any laborer or mechanic, including
any apprentice or helper working on the site of the work all or
part of the wages required by the contract, or upon the
contractor's failure to submit the required records as discussed
in paragraph 3.d. of this section, the contracting agency may
on its own initiative and after written notice to the contractor,
take such action as may be necessary to cause the
suspension of any further payment, advance, or guarantee of
funds until such violations have ceased.
b. Priority to withheld funds. The Department has priority to
funds withheld or to be withheld in accordance with paragraph
Exhibit I- Page 5 of 14
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
2.a. of this section or Section V, paragraph 3.a., or both, over
claims to those funds by:
(1) A contractor's surety(ies), including without limitation
performance bond sureties and payment bond sureties;
(2) A contracting agency for its reprocurement costs;
(3) A trustee(s) (either a court -appointed trustee or a U.S.
trustee, or both) in bankruptcy of a contractor, or a contractor's
bankruptcy estate;
(4) A contractor's assignee(s);
(5) A contractor's successor(s); or
(6) A claim asserted under the Prompt Payment Act, 31
U.S.C. 3901-3907.
3. Records and certified payrolls (29 CFR 5.5)
a. Basic record requirements (1) Length of record retention.
All regular payrolls and other basic records must be
maintained by the contractor and any subcontractor during the
course of the work and preserved for all laborers and
mechanics working at the site of the work (or otherwise
working in construction or development of the project under a
development statute) for a period of at least 3 years after all
the work on the prime contract is completed.
(2) Information required. Such records must contain the
name; Social Security number; last known address, telephone
number, and email address of each such worker; each
worker's correct classification(s) of work actually performed;
hourly rates of wages paid (including rates of contributions or
costs anticipated for bona fide fringe benefits or cash
equivalents thereof of the types described in 40 U.S.C.
3141(2)(B) of the Davis -Bacon Act); daily and weekly number
of hours actually worked in total and on each covered contract;
deductions made; and actual wages paid.
(3) Additional records relating to fringe benefits. Whenever
the Secretary of Labor has found under paragraph 1.e. of this
section that the wages of any laborer or mechanic include the
amount of any costs reasonably anticipated in providing
benefits under a plan or program described in 40 U.S.C.
3141(2}(B} of the Davis -Bacon Act, the contractor must
maintain records which show that the commitment to provide
such benefits is enforceable, that the plan or program is
financially responsible, and that the plan or program has been
communicated in writing to the laborers or mechanics affected,
and records which show the costs anticipated or the actual
cost incurred in providing such benefits.
(4) Additional records relating to apprenticeship. Contractors
with apprentices working under approved programs must
maintain written evidence of the registration of apprenticeship
programs, the registration of the apprentices, and the ratios
and wage rates prescribed in the applicable programs.
b. Certified payroll requirements (1) Frequency and method
of submission. The contractor or subcontractor must submit
weekly, for each week in which any DBA- or Related Acts -
covered work is performed, certified payrolls to the contracting
agency. The prime contractor is responsible for the submission
of all certified payrolls by all subcontractors. A contracting
agency or prime contractor may permit or require contractors
to submit certified payrolls through an electronic system, as
long as the electronic system requires a legally valid electronic
signature; the system allows the contractor, the contracting
agency, and the Department of Labor to access the certified
payrolls upon request for at least 3 years after the work on the
prime contract has been completed; and the contracting
agency or prime contractor permits other methods of
submission in situations where the contractor is unable or
limited in its ability to use or access the electronic system.
(2) Information required. The certified payrolls submitted
must set out accurately and completely all of the information
required to be maintained under paragraph 3.a.(2) of this
section, except that full Social Security numbers and last
known addresses, telephone numbers, and email addresses
must not be included on weekly transmittals. Instead, the
certified payrolls need only include an individually identifying
number for each worker ( e.g., the last four digits of the
worker's Social Security number). The required weekly
certified payroll information may be submitted using Optional
Form WH-347 or in any other format desired. Optional Form
WH-347 is available for this purpose from the Wage and Hour
Division website at https://www.dol.pov/sites/do/pou/file HD/
legacy/files/wh347/pdfor its successor website. It is not a
violation of this section for a prime contractor to require a
subcontractor to provide full Social Security numbers and last
known addresses, telephone numbers, and email addresses to
the prime contractor for its own records, without weekly
submission by the subcontractor to the contracting agency.
(3) Statement of Compliance. Each certified payroll
submitted must be accompanied by a "Statement of
Compliance," signed by the contractor or subcontractor, or the
contractor's or subcontractor's agent who pays or supervises
the payment of the persons working on the contract, and must
certify the following:
(i) That the certified payroll for the payroll period contains
the information required to be provided under paragraph 3.b.
of this section, the appropriate information and basic records
are being maintained under paragraph 3.a. of this section,
and such information and records are correct and complete;
(ii) That each laborer or mechanic (including each helper
and apprentice) working on the contract during the payroll
period has been paid the full weekly wages earned, without
rebate, either directly or indirectly, and that no deductions
have been made either directly or indirectly from the full
wages earned, other than permissible deductions as set
forth in 29 CFR part 3; and
(iii) That each laborer or mechanic has been paid not less
than the applicable wage rates and fringe benefits or cash
equivalents for the classification(s) of work actually
performed, as specified in the applicable wage determination
incorporated into the contract.
(4) Use of Optional Form WH-347. The weekly submission
of a properly executed certification set forth on the reverse
side of Optional Form WH-347 will satisfy the requirement for
submission of the "Statement of Compliance" required by
paragraph 3.b.(3) of this section.
Exhibit I- Page 6 of 14
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
(5) Signature. The signature by the contractor,
subcontractor, or the contractor's or subcontractor's agent
must be an original handwritten signature or a legally valid
electronic signature.
(6) Falsification. The falsification of any of the above
certifications may subject the contractor or subcontractor to
civil or criminal prosecution under 18 U.S.C. 1001 and 31
U.S.C. 3729.
(7) Length of certified payroll retention. The contractor or
subcontractor must preserve all certified payrolls during the
course of the work and for a period of 3 years after all the work
on the prime contract is completed.
c. Contracts, subcontracts, and related documents. The
contractor or subcontractor must maintain this contract or
subcontract and related documents including, without
limitation, bids, proposals, amendments, modifications, and
extensions. The contractor or subcontractor must preserve
these contracts, subcontracts, and related documents during
the course of the work and for a period of 3 years after all the
work on the prime contract is completed.
d. Required disclosures and access (1) Required record
disclosures and access to workers. The contractor or
subcontractor must make the records required under
paragraphs 3.a. through 3.c. of this section, and any other
documents that the contracting agency, the State DOT, the
FHWA, or the Department of Labor deems necessary to
determine compliance with the labor standards provisions of
any of the applicable statutes referenced by §5.1, available for
inspection, copying, or transcription by authorized
representatives of the contracting agency, the State DOT, the
FHWA, or the Department of Labor, and must permit such
representatives to interview workers during working hours on
the job.
(2) Sanctions for non-compliance with records and worker
access requirements. If the contractor or subcontractor fails to
submit the required records or to make them available, or
refuses to permit worker interviews during working hours on
the job, the Federal agency may, after written notice to the
contractor, sponsor, applicant, owner, or other entity, as the
case may be, that maintains such records or that employs
such workers, take such action as may be necessary to cause
the suspension of any further payment, advance, or guarantee
of funds. Furthermore, failure to submit the required records
upon request or to make such records available, or to permit
worker interviews during working hours on the job, may be
grounds for debarment action pursuant to § 5.12. In addition,
any contractor or other person that fails to submit the required
records or make those records available to WHD within the
time WHD requests that the records be produced will be
precluded from introducing as evidence in an administrative
proceeding under 29 CFR part 6 any of the required records
that were not provided or made available to WHD. WHD will
take into consideration a reasonable request from the
contractor or person for an extension of the time for
submission of records. WHD will determine the
reasonableness of the request and may consider, among other
things, the location of the records and the volume of
production.
(3) Required information disclosures. Contractors and
subcontractors must maintain the full Social Security number
and last known address, telephone number, and email address
of each covered worker, and must provide them upon request
to the contracting agency, the State DOT, the FHWA, the
contractor, or the Wage and Hour Division of the Department
of Labor for purposes of an investigation or other compliance
action.
4. Apprentices and equal employment opportunity (29 CFR
5.5)
a. Apprentices (1) Rate of pay. Apprentices will be permitted
to work at less than the predetermined rate for the work they
perform when they are employed pursuant to and individually
registered in a bona fide apprenticeship program registered
with the U.S. Department of Labor, Employment and Training
Administration, Office of Apprenticeship (OA), or with a State
Apprenticeship Agency recognized by the OA. A person who is
not individually registered in the program, but who has been
certified by the OA or a State Apprenticeship Agency (where
appropriate) to be eligible for probationary employment as an
apprentice, will be permitted to work at less than the
predetermined rate for the work they perform in the first 90
days of probationary employment as an apprentice in such a
program. In the event the OA or a State Apprenticeship
Agency recognized by the OA withdraws approval of an
apprenticeship program, the contractor will no longer be
permitted to use apprentices at less than the applicable
predetermined rate for the work performed until an acceptable
program is approved.
(2) Fringe benefits. Apprentices must be paid fringe benefits
in accordance with the provisions of the apprenticeship
program. If the apprenticeship program does not specify fringe
benefits, apprentices must be paid the full amount of fringe
benefits listed on the wage determination for the applicable
classification. If the Administrator determines that a different
practice prevails for the applicable apprentice classification,
fringe benefits must be paid in accordance with that
determination.
(3) Apprenticeship ratio. The allowable ratio of apprentices to
journeyworkers on the job site in any craft classification must
not be greater than the ratio permitted to the contractor as to
the entire work force under the registered program or the ratio
applicable to the locality of the project pursuant to paragraph
4.a.(4) of this section. Any worker listed on a payroll at an
apprentice wage rate, who is not registered or otherwise
employed as stated in paragraph 4.a.(1) of this section, must
be paid not less than the applicable wage rate on the wage
determination for the classification of work actually performed.
In addition, any apprentice performing work on the job site in
excess of the ratio permitted under this section must be paid
not less than the applicable wage rate on the wage
determination for the work actually performed.
(4) Reciprocity of ratios and wage rates. Where a contractor
is performing construction on a project in a locality other than
the locality in which its program is registered, the ratios and
wage rates (expressed in percentages of the journeyworker's
hourly rate) applicable within the locality in which the
construction is being performed must be observed. If there is
no applicable ratio or wage rate for the locality of the project,
the ratio and wage rate specified in the contractor's registered
program must be observed.
b. Equal employment opportunity. The use of apprentices
and journeyworkers under this part must be in conformity with
Exhibit I- Page 7 of 14
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
the equal employment opportunity requirements of Executive
Order 11246, as amended, and 29 CFR part 30.
c. Apprentices and Trainees (programs of the U.S. DOT).
Apprentices and trainees working under apprenticeship and
skill training programs which have been certified by the
Secretary of Transportation as promoting EEO in connection
with Federal -aid highway construction programs are not
subject to the requirements of paragraph 4 of this Section IV.
23 CFR 230.111(e)(2). The straight time hourly wage rates for
apprentices and trainees under such programs will be
established by the particular programs. The ratio of
apprentices and trainees to journeyworkers shall not be
greater than permitted by the terms of the particular program.
5. Compliance with Copeland Act requirements. The
contractor shall comply with the requirements of 29 CFR part
3, which are incorporated by reference in this contract as
provided in 29 CFR 5.5.
6. Subcontracts. The contractor or subcontractor must insert
FHWA-1273 in any subcontracts, along with the applicable
wage determination(s) and such other clauses or contract
modifications as the contracting agency may by appropriate
instructions require, and a clause requiring the subcontractors
to include these clauses and wage determination(s) in any
lower tier subcontracts. The prime contractor is responsible for
the compliance by any subcontractor or lower tier
subcontractor with all the contract clauses in this section. In
the event of any violations of these clauses, the prime
contractor and any subcontractor(s) responsible will be liable
for any unpaid wages and monetary relief, including interest
from the date of the underpayment or loss, due to any workers
of lower -tier subcontractors, and may be subject to debarment,
as appropriate. 29 CFR 5.5.
7. Contract termination: debarment. A breach of the
contract clauses in 29 CFR 5.5 may be grounds for termination
of the contract, and for debarment as a contractor and a
subcontractor as provided in 29 CFR 5.12.
8. Compliance with Davis -Bacon and Related Act
requirements. All rulings and interpretations of the Davis -
Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5
are herein incorporated by reference in this contract as
provided in 29 CFR 5.5.
9. Disputes concerning labor standards. As provided in 29
CFR 5.5, disputes arising out of the labor standards provisions
of this contract shall not be subject to the general disputes
clause of this contract. Such disputes shall be resolved in
accordance with the procedures of the Department of Labor
set forth in 29 CFR parts 5, 6, and 7. Disputes within the
meaning of this clause include disputes between the contractor
(or any of its subcontractors) and the contracting agency, the
U.S. Department of Labor, or the employees or their
representatives.
10. Certification of eligibility. a. By entering into this contract,
the contractor certifies that neither it nor any person or firm
who has an interest in the contractor's firm is a person or firm
ineligible to be awarded Government contracts by virtue of 40
U.S.C. 3144(b) or § 5.12(a).
b. No part of this contract shall be subcontracted to any
person or firm ineligible for award of a Government contract by
virtue of 40 U.S.C. 3144(b) or § 5.12(a).
c. The penalty for making false statements is prescribed in
the U.S. Code, Title 18 Crimes and Criminal Procedure, 18
U.S.C. 1001.
11. Anti -retaliation. It is unlawful for any person to discharge,
demote, intimidate, threaten, restrain, coerce, blacklist, harass,
or in any other manner discriminate against, or to cause any
person to discharge, demote, intimidate, threaten, restrain,
coerce, blacklist, harass, or in any other manner discriminate
against, any worker or job applicant for:
a. Notifying any contractor of any conduct which the worker
reasonably believes constitutes a violation of the DBA, Related
Acts, this part, or 29 CFR part 1 or 3;
b. Filing any complaint, initiating or causing to be initiated
any proceeding, or otherwise asserting or seeking to assert on
behalf of themselves or others any right or protection under the
DBA, Related Acts, this part, or 29 CFR part 1 or 3;
c. Cooperating in any investigation or other compliance
action, or testifying in any proceeding under the DBA, Related
Acts, this part, or 29 CFR part 1 or 3; or
d. Informing any other person about their rights under the
DBA, Related Acts, this part, or 29 CFR part 1 or 3.
V. CONTRACT WORK HOURS AND SAFETY STANDARDS
ACT
Pursuant to 29 CFR 5.5(b), the following clauses apply to any
Federal -aid construction contract in an amount in excess of
$100,000 and subject to the overtime provisions of the
Contract Work Hours and Safety Standards Act. These
clauses shall be inserted in addition to the clauses required by
29 CFR 5.5(a) or 29 CFR 4.6. As used in this paragraph, the
terms laborers and mechanics include watchpersons and
guards.
1. Overtime requirements. No contractor or subcontractor
contracting for any part of the contract work which may require
or involve the employment of laborers or mechanics shall
require or permit any such laborer or mechanic in any
workweek in which he or she is employed on such work to
work in excess of forty hours in such workweek unless such
laborer or mechanic receives compensation at a rate not less
than one and one-half times the basic rate of pay for all hours
worked in excess of forty hours in such workweek. 29 CFR
5.5.
2. Violation; liability for unpaid wages; liquidated
damages. In the event of any violation of the clause set forth
in paragraph 1. of this section the contractor and any
subcontractor responsible therefor shall be liable for the
unpaid wages and interest from the date of the underpayment.
In addition, such contractor and subcontractor shall be liable to
the United States (in the case of work done under contract for
the District of Columbia or a territory, to such District or to such
territory), for liquidated damages. Such liquidated damages
shall be computed with respect to each individual laborer or
Exhibit I- Page 8 of 14
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
mechanic, including watchpersons and guards, employed in
violation of the clause set forth in paragraph 1. of this section,
in the sum currently provided in 29 CFR 5.5(b)(2)* for each
calendar day on which such individual was required or
permitted to work in excess of the standard workweek of forty
hours without payment of the overtime wages required by the
clause set forth in paragraph 1. of this section.
$31 as of January 15, 2023 (See 88 FR 88 FR 2210) as may
be adjusted annually by the Department of Labor, pursuant to
the Federal Civil Penalties Inflation Adjustment Act of 1990.
3. Withholding for unpaid wages and liquidated damages
a. Withholding process. The FHWA or the contracting
agency may, upon its own action, or must, upon written
request of an authorized representative of the Department of
Labor, withhold or cause to be withheld from the contractor so
much of the accrued payments or advances as may be
considered necessary to satisfy the liabilities of the prime
contractor or any subcontractor for any unpaid wages;
monetary relief, including interest; and liquidated damages
required by the clauses set forth in this section on this
contract, any other Federal contract with the same prime
contractor, or any other federally assisted contract subject to
the Contract Work Hours and Safety Standards Act that is held
by the same prime contractor (as defined in § 5.2). The
necessary funds may be withheld from the contractor under
this contract, any other Federal contract with the same prime
contractor, or any other federally assisted contract that is
subject to the Contract Work Hours and Safety Standards Act
and is held by the same prime contractor, regardless of
whether the other contract was awarded or assisted by the
same agency, and such funds may be used to satisfy the
contractor liability for which the funds were withheld.
b. Priority to withheld funds. The Department has priority to
funds withheld or to be withheld in accordance with Section IV
paragraph 2.a. or paragraph 3.a. of this section, or both, over
claims to those funds by:
(1) A contractor's surety(ies), including without limitation
performance bond sureties and payment bond sureties;
(2) A contracting agency for its reprocurement costs;
(3) A trustee(s) (either a court -appointed trustee or a U.S.
trustee, or both) in bankruptcy of a contractor, or a contractor's
bankruptcy estate;
(4) A contractor's assignee(s);
(5) A contractor's successor(s); or
(6) A claim asserted under the Prompt Payment Act, 31
U.S.C. 3901-3907.
4. Subcontracts. The contractor or subcontractor must insert
in any subcontracts the clauses set forth in paragraphs 1.
through 5. of this section and a clause requiring the
subcontractors to include these clauses in any lower tier
subcontracts. The prime contractor is responsible for
compliance by any subcontractor or lower tier subcontractor
with the clauses set forth in paragraphs 1. through 5. In the
event of any violations of these clauses, the prime contractor
and any subcontractor(s) responsible will be liable for any
unpaid wages and monetary relief, including interest from the
date of the underpayment or loss, due to any workers of lower -
tier subcontractors, and associated liquidated damages and
may be subject to debarment, as appropriate.
5. Anti -retaliation. It is unlawful for any person to discharge,
demote, intimidate, threaten, restrain, coerce, blacklist, harass,
or in any other manner discriminate against, or to cause any
person to discharge, demote, intimidate, threaten, restrain,
coerce, blacklist, harass, or in any other manner discriminate
against, any worker or job applicant for:
a. Notifying any contractor of any conduct which the worker
reasonably believes constitutes a violation of the Contract
Work Hours and Safety Standards Act (CWHSSA) or its
implementing regulations in this part;
b. Filing any complaint, initiating or causing to be initiated
any proceeding, or otherwise asserting or seeking to assert on
behalf of themselves or others any right or protection under
CWHSSA or this part;
c. Cooperating in any investigation or other compliance
action, or testifying in any proceeding under CWHSSA or this
part; or
d. Informing any other person about their rights under
CWHSSA or this part.
VI. SUBLETTING OR ASSIGNING THE CONTRACT
This provision is applicable to all Federal -aid construction
contracts on the National Highway System pursuant to 23 CFR
635.116.
1. The contractor shall perform with its own organization
contract work amounting to not less than 30 percent (or a
greater percentage if specified elsewhere in the contract) of
the total original contract price, excluding any specialty items
designated by the contracting agency. Specialty items may be
performed by subcontract and the amount of any such
specialty items performed may be deducted from the total
original contract price before computing the amount of work
required to be performed by the contractor's own organization
(23 CFR 635.116).
a. The term "perform work with its own organization" in
paragraph 1 of Section VI refers to workers employed or
leased by the prime contractor, and equipment owned or
rented by the prime contractor, with or without operators.
Such term does not include employees or equipment of a
subcontractor or lower tier subcontractor, agents of the prime
contractor, or any other assignees. The term may include
payments for the costs of hiring leased employees from an
employee leasing firm meeting all relevant Federal and State
regulatory requirements. Leased employees may only be
included in this term if the prime contractor meets all of the
following conditions: (based on longstanding interpretation)
(1) the prime contractor maintains control over the
supervision of the day-to-day activities of the leased
employees;
(2) the prime contractor remains responsible for the quality
of the work of the leased employees;
Exhibit I- Page 9 of 14
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
(3) the prime contractor retains all power to accept or
exclude individual employees from work on the project; and
(4) the prime contractor remains ultimately responsible for
the payment of predetermined minimum wages, the
submission of payrolls, statements of compliance and all
other Federal regulatory requirements.
b. "Specialty Items" shall be construed to be limited to work
that requires highly specialized knowledge, abilities, or
equipment not ordinarily available in the type of contracting
organizations qualified and expected to bid or propose on the
contract as a whole and in general are to be limited to minor
components of the overall contract. 23 CFR 635.102.
2. Pursuant to 23 CFR 635.116(a), the contract amount upon
which the requirements set forth in paragraph (1) of Section VI
is computed includes the cost of material and manufactured
products which are to be purchased or produced by the
contractor under the contract provisions.
3. Pursuant to 23 CFR 635.116(c), the contractor shall furnish
(a) a competent superintendent or supervisor who is employed
by the firm, has full authority to direct performance of the work
in accordance with the contract requirements, and is in charge
of all construction operations (regardless of who performs the
work) and (b) such other of its own organizational resources
(supervision, management, and engineering services) as the
contracting officer determines is necessary to assure the
performance of the contract.
4. No portion of the contract shall be sublet, assigned or
otherwise disposed of except with the written consent of the
contracting officer, or authorized representative, and such
consent when given shall not be construed to relieve the
contractor of any responsibility for the fulfillment of the
contract. Written consent will be given only after the
contracting agency has assured that each subcontract is
evidenced in writing and that it contains all pertinent provisions
and requirements of the prime contract. (based on long-
standing interpretation of 23 CFR 635.116).
5. The 30 -percent self -performance requirement of paragraph
(1) is not applicable to design -build contracts; however,
contracting agencies may establish their own self -performance
requirements. 23 CFR 635.116(d).
1T/I�"f9y�viieCKdU7401�11:2N41�01�1IQ011
This provision is applicable to all Federal -aid construction
contracts and to all related subcontracts.
1. In the performance of this contract the contractor shall
comply with all applicable Federal, State, and local laws
governing safety, health, and sanitation (23 CFR Part 635).
The contractor shall provide all safeguards, safety devices and
protective equipment and take any other needed actions as it
determines, or as the contracting officer may determine, to be
reasonably necessary to protect the life and health of
employees on the job and the safety of the public and to
protect property in connection with the performance of the
work covered by the contract. 23 CFR 635.108.
2. It is a condition of this contract, and shall be made a
condition of each subcontract, which the contractor enters into
pursuant to this contract, that the contractor and any
subcontractor shall not permit any employee, in performance
of the contract, to work in surroundings or under conditions
which are unsanitary, hazardous or dangerous to his/her
health or safety, as determined under construction safety and
health standards (29 CFR Part 1926) promulgated by the
Secretary of Labor, in accordance with Section 107 of the
Contract Work Hours and Safety Standards Act (40 U.S.C.
3704). 29 CFR 1926.10.
3. Pursuant to 29 CFR 1926.3, it is a condition of this contract
that the Secretary of Labor or authorized representative
thereof, shall have right of entry to any site of contract
performance to inspect or investigate the matter of compliance
with the construction safety and health standards and to carry
out the duties of the Secretary under Section 107 of the
Contract Work Hours and Safety Standards Act (40 U.S.C.
3704).
VIII. FALSE STATEMENTS CONCERNING HIGHWAY
PROJECTS
This provision is applicable to all Federal -aid construction
contracts and to all related subcontracts.
In order to assure high quality and durable construction in
conformity with approved plans and specifications and a high
degree of reliability on statements and representations made
by engineers, contractors, suppliers, and workers on Federal -
aid highway projects, it is essential that all persons concerned
with the project perform their functions as carefully, thoroughly,
and honestly as possible. Willful falsification, distortion, or
misrepresentation with respect to any facts related to the
project is a violation of Federal law. To prevent any
misunderstanding regarding the seriousness of these and
similar acts, Form FHWA-1022 shall be posted on each
Federal -aid highway project (23 CFR Part 635) in one or more
places where it is readily available to all persons concerned
with the project:
18 U.S.C. 1020 reads as follows:
"Whoever, being an officer, agent, or employee of the United
States, or of any State or Territory, or whoever, whether a
person, association, firm, or corporation, knowingly makes any
false statement, false representation, or false report as to the
character, quality, quantity, or cost of the material used or to
be used, or the quantity or quality of the work performed or to
be performed, or the cost thereof in connection with the
submission of plans, maps, specifications, contracts, or costs
of construction on any highway or related project submitted for
approval to the Secretary of Transportation; or
Whoever knowingly makes any false statement, false
representation, false report or false claim with respect to the
character, quality, quantity, or cost of any work performed or to
be performed, or materials furnished or to be furnished, in
connection with the construction of any highway or related
project approved by the Secretary of Transportation; or
Whoever knowingly makes any false statement or false
representation as to material fact in any statement, certificate,
or report submitted pursuant to provisions of the Federal -aid
Roads Act approved July 11, 1916, (39 Stat. 355), as
amended and supplemented;
Shall be fined under this title or imprisoned not more than 5
years or both."
Exhibit I- Page 10 of 14
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
IX. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL
WATER POLLUTION CONTROL ACT (42 U.S.C. 7606; 2
CFR 200.88; EO 11738)
This provision is applicable to all Federal -aid construction
contracts in excess of $150,000 and to all related
subcontracts. 48 CFR 2.101; 2 CFR 200.327.
By submission of this bid/proposal or the execution of this
contract or subcontract, as appropriate, the bidder, proposer,
Federal -aid construction contractor, subcontractor, supplier, or
vendor agrees to comply with all applicable standards, orders
or regulations issued pursuant to the Clean Air Act (42 U.S.C.
7401-7671q) and the Federal Water Pollution Control Act, as
amended (33 U.S.C. 1251-1387). Violations must be reported
to the Federal Highway Administration and the Regional Office
of the Environmental Protection Agency. 2 CFR Part 200,
Appendix II.
The contractor agrees to include or cause to be included the
requirements of this Section in every subcontract, and further
agrees to take such action as the contracting agency may
direct as a means of enforcing such requirements. 2 CFR
200.327.
X. CERTIFICATION REGARDING DEBARMENT,
SUSPENSION, INELIGIBILITY AND VOLUNTARY
EXCLUSION
This provision is applicable to all Federal -aid construction
contracts, design -build contracts, subcontracts, lower -tier
subcontracts, purchase orders, lease agreements, consultant
contracts or any other covered transaction requiring FHWA
approval or that is estimated to cost $25,000 or more — as
defined in 2 CFR Parts 180 and 1200. 2 CFR 180.220 and
1200.220.
1. Instructions for Certification — First Tier Participants:
a. By signing and submitting this proposal, the prospective
first tier participant is providing the certification set out below.
b. The inability of a person to provide the certification set out
below will not necessarily result in denial of participation in this
covered transaction. The prospective first tier participant shall
submit an explanation of why it cannot provide the certification
set out below. The certification or explanation will be
considered in connection with the department or agency's
determination whether to enter into this transaction. However,
failure of the prospective first tier participant to furnish a
certification or an explanation shall disqualify such a person
from participation in this transaction. 2 CFR 180.320.
c. The certification in this clause is a material representation
of fact upon which reliance was placed when the contracting
agency determined to enter into this transaction. If it is later
determined that the prospective participant knowingly rendered
an erroneous certification, in addition to other remedies
available to the Federal Government, the contracting agency
may terminate this transaction for cause of default. 2 CFR
180.325.
d. The prospective first tier participant shall provide
immediate written notice to the contracting agency to whom
this proposal is submitted if any time the prospective first tier
participant learns that its certification was erroneous when
submitted or has become erroneous by reason of changed
circumstances. 2 CFR 180.345 and 180.350.
e. The terms "covered transaction," "debarred,"
"suspended," "ineligible," "participant," "person," "principal,"
and "voluntarily excluded," as used in this clause, are defined
in 2 CFR Parts 180, Subpart I, 180.900-180.1020, and 1200.
"First Tier Covered Transactions" refers to any covered
transaction between a recipient or subrecipient of Federal
funds and a participant (such as the prime or general contract).
"Lower Tier Covered Transactions" refers to any covered
transaction under a First Tier Covered Transaction (such as
subcontracts). "First Tier Participant" refers to the participant
who has entered into a covered transaction with a recipient or
subrecipient of Federal funds (such as the prime or general
contractor). "Lower Tier Participant" refers any participant who
has entered into a covered transaction with a First Tier
Participant or other Lower Tier Participants (such as
subcontractors and suppliers).
f. The prospective first tier participant agrees by submitting
this proposal that, should the proposed covered transaction be
entered into, it shall not knowingly enter into any lower tier
covered transaction with a person who is debarred,
suspended, declared ineligible, or voluntarily excluded from
participation in this covered transaction, unless authorized by
the department or agency entering into this transaction. 2
CFR 180.330.
g. The prospective first tier participant further agrees by
submitting this proposal that it will include the clause titled
"Certification Regarding Debarment, Suspension, Ineligibility
and Voluntary Exclusion -Lower Tier Covered Transactions,"
provided by the department or contracting agency, entering
into this covered transaction, without modification, in all lower
tier covered transactions and in all solicitations for lower tier
covered transactions exceeding the $25,000 threshold. 2 CFR
180.220 and 180.300.
h. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that is not debarred, suspended, ineligible, or
voluntarily excluded from the covered transaction, unless it
knows that the certification is erroneous. 2 CFR 180.300;
180.320, and 180.325. A participant is responsible for
ensuring that its principals are not suspended, debarred, or
otherwise ineligible to participate in covered transactions. 2
CFR 180.335. To verify the eligibility of its principals, as well
as the eligibility of any lower tier prospective participants, each
participant may, but is not required to, check the System for
Award Management website (httr)s://www.sa .aov/). 2 CFR
180.300, 180.320, and 180.325.
i. Nothing contained in the foregoing shall be construed to
require the establishment of a system of records in order to
render in good faith the certification required by this clause.
The knowledge and information of the prospective participant
is not required to exceed that which is normally possessed by
a prudent person in the ordinary course of business dealings.
j. Except for transactions authorized under paragraph (f) of
these instructions, if a participant in a covered transaction
knowingly enters into a lower tier covered transaction with a
person who is suspended, debarred, ineligible, or voluntarily
excluded from participation in this transaction, in addition to
other remedies available to the Federal Government, the
department or agency may terminate this transaction for cause
or default. 2 CFR 180.325.
Exhibit I- Page 11 of 14
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
2. Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion — First Tier
Participants:
a. The prospective first tier participant certifies to the best of
its knowledge and belief, that it and its principals:
(1) Are not presently debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded from
participating in covered transactions by any Federal
department or agency, 2 CFR 180.335;.
(2) Have not within a three-year period preceding this
proposal been convicted of or had a civil judgment rendered
against them for commission of fraud or a criminal offense in
connection with obtaining, attempting to obtain, or performing
a public (Federal, State, or local) transaction or contract under
a public transaction; violation of Federal or State antitrust
statutes or commission of embezzlement, theft, forgery,
bribery, falsification or destruction of records, making false
statements, or receiving stolen property, 2 CFR 180.800;
(3) Are not presently indicted for or otherwise criminally or
civilly charged by a governmental entity (Federal, State or
local) with commission of any of the offenses enumerated in
paragraph (a)(2) of this certification, 2 CFR 180.700 and
180.800; and
(4) Have not within a three-year period preceding this
application/proposal had one or more public transactions
(Federal, State or local) terminated for cause or default. 2
CFR 180.335(d).
(5) Are not a corporation that has been convicted of a felony
violation under any Federal law within the two-year period
preceding this proposal (USDOT Order 4200.6 implementing
appropriations act requirements); and
(6) Are not a corporation with any unpaid Federal tax liability
that has been assessed, for which all judicial and
administrative remedies have been exhausted, or have lapsed,
and that is not being paid in a timely manner pursuant to an
agreement with the authority responsible for collecting the tax
liability (USDOT Order 4200.6 implementing appropriations act
requirements).
b. Where the prospective participant is unable to certify to
any of the statements in this certification, such prospective
participant should attach an explanation to this proposal. 2
CFR 180.335 and 180.340.
3. Instructions for Certification - Lower Tier Participants
(Applicable to all subcontracts, purchase orders, and other
lower tier transactions requiring prior FHWA approval or
estimated to cost $25,000 or more -2 CFR Parts 180 and
1200). 2 CFR 180.220 and 1200.220.
a. By signing and submitting this proposal, the prospective
lower tier participant is providing the certification set out below
b. The certification in this clause is a material representation
of fact upon which reliance was placed when this transaction
was entered into. If it is later determined that the prospective
lower tier participant knowingly rendered an erroneous
certification, in addition to other remedies available to the
Federal Government, the department, or agency with which
this transaction originated may pursue available remedies,
including suspension and/or debarment.
c. The prospective lower tier participant shall provide
immediate written notice to the person to which this proposal is
submitted if at any time the prospective lower tier participant
learns that its certification was erroneous by reason of
changed circumstances. 2 CFR 180.365.
d. The terms "covered transaction," "debarred,"
"suspended," "ineligible," "participant," "person," "principal,"
and "voluntarily excluded," as used in this clause, are defined
in 2 CFR Parts 180, Subpart I, 180.900 - 180.1020, and 1200.
You may contact the person to which this proposal is
submitted for assistance in obtaining a copy of those
regulations. "First Tier Covered Transactions" refers to any
covered transaction between a recipient or subrecipient of
Federal funds and a participant (such as the prime or general
contract). "Lower Tier Covered Transactions" refers to any
covered transaction under a First Tier Covered Transaction
(such as subcontracts). "First Tier Participant" refers to the
participant who has entered into a covered transaction with a
recipient or subrecipient of Federal funds (such as the prime or
general contractor). "Lower Tier Participant" refers any
participant who has entered into a covered transaction with a
First Tier Participant or other Lower Tier Participants (such as
subcontractors and suppliers).
e. The prospective lower tier participant agrees by
submitting this proposal that, should the proposed covered
transaction be entered into, it shall not knowingly enter into
any lower tier covered transaction with a person who is
debarred, suspended, declared ineligible, or voluntarily
excluded from participation in this covered transaction, unless
authorized by the department or agency with which this
transaction originated. 2 CFR 1200.220 and 1200.332.
f. The prospective lower tier participant further agrees by
submitting this proposal that it will include this clause titled
"Certification Regarding Debarment, Suspension, Ineligibility
and Voluntary Exclusion -Lower Tier Covered Transaction,"
without modification, in all lower tier covered transactions and
in all solicitations for lower tier covered transactions exceeding
the $25,000 threshold. 2 CFR 180.220 and 1200.220.
g. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that is not debarred, suspended, ineligible, or
voluntarily excluded from the covered transaction, unless it
knows that the certification is erroneous. A participant is
responsible for ensuring that its principals are not suspended,
debarred, or otherwise ineligible to participate in covered
transactions. To verify the eligibility of its principals, as well as
the eligibility of any lower tier prospective participants, each
participant may, but is not required to, check the System for
Award Management website (https://www.sam.gov/), which is
compiled by the General Services Administration. 2 CFR
180.300, 180.320, 180.330, and 180.335.
h. Nothing contained in the foregoing shall be construed to
require establishment of a system of records in order to render
in good faith the certification required by this clause. The
knowledge and information of participant is not required to
exceed that which is normally possessed by a prudent person
in the ordinary course of business dealings.
i. Except for transactions authorized under paragraph e of
these instructions, if a participant in a covered transaction
knowingly enters into a lower tier covered transaction with a
person who is suspended, debarred, ineligible, or voluntarily
Exhibit I- Page 12 of 14
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
excluded from participation in this transaction, in addition to
other remedies available to the Federal Government, the
department or agency with which this transaction originated
may pursue available remedies, including suspension and/or
debarment. 2 CFR 180.325.
4. Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion --Lower Tier
Participants:
a. The prospective lower tier participant certifies, by
submission of this proposal, that neither it nor its principals
(1) is presently debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded from
participating in covered transactions by any Federal
department or agency, 2 CFR 180.355;
(2) is a corporation that has been convicted of a felony
violation under any Federal law within the two-year period
preceding this proposal (USDOT Order 4200.6 implementing
appropriations act requirements); and
(3) is a corporation with any unpaid Federal tax liability that
has been assessed, for which all judicial and administrative
remedies have been exhausted, or have lapsed, and that is
not being paid in a timely manner pursuant to an agreement
with the authority responsible for collecting the tax liability.
(USDOT Order 4200.6 implementing appropriations act
requirements)
b. Where the prospective lower tier participant is unable to
certify to any of the statements in this certification, such
prospective participant should attach an explanation to this
proposal.
XI. CERTIFICATION REGARDING USE OF CONTRACT
FUNDS FOR LOBBYING
This provision is applicable to all Federal -aid construction
contracts and to all related subcontracts which exceed
$100,000. 49 CFR Part 20, App. A.
1. The prospective participant certifies, by signing and
submitting this bid or proposal, to the best of his or her
knowledge and belief, that:
a. No Federal appropriated funds have been paid or will be
paid, by or on behalf of the undersigned, to any person for
influencing or attempting to influence an officer or employee of
any Federal agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of
Congress in connection with the awarding of any Federal
contract, the making of any Federal grant, the making of any
Federal loan, the entering into of any cooperative agreement,
and the extension, continuation, renewal, amendment, or
modification of any Federal contract, grant, loan, or
cooperative agreement.
b. If any funds other than Federal appropriated funds have
been paid or will be paid to any person for influencing or
attempting to influence an officer or employee of any Federal
agency, a Member of Congress, an officer or employee of
Congress, or an employee of a Member of Congress in
connection with this Federal contract, grant, loan, or
cooperative agreement, the undersigned shall complete and
submit Standard Form-LLL, "Disclosure Form to Report
Lobbying," in accordance with its instructions.
2. This certification is a material representation of fact upon
which reliance was placed when this transaction was made or
entered into. Submission of this certification is a prerequisite
for making or entering into this transaction imposed by 31
U.S.C. 1352. Any person who fails to file the required
certification shall be subject to a civil penalty of not less than
$10,000 and not more than $100,000 for each such failure.
3. The prospective participant also agrees by submitting its
bid or proposal that the participant shall require that the
language of this certification be included in all lower tier
subcontracts, which exceed $100,000 and that all such
recipients shall certify and disclose accordingly.
XII. USE OF UNITED STATES -FLAG VESSELS:
This provision is applicable to all Federal -aid construction
contracts, design -build contracts, subcontracts, lower -tier
subcontracts, purchase orders, lease agreements, or any other
covered transaction. 46 CFR Part 381.
This requirement applies to material or equipment that is
acquired for a specific Federal -aid highway project. 46 CFR
381.7. It is not applicable to goods or materials that come into
inventories independent of an FHWA funded -contract.
When oceanic shipments (or shipments across the Great
Lakes) are necessary for materials or equipment acquired for a
specific Federal -aid construction project, the bidder, proposer,
contractor, subcontractor, or vendor agrees:
1. To utilize privately owned United States -flag commercial
vessels to ship at least 50 percent of the gross tonnage
(computed separately for dry bulk carriers, dry cargo liners,
and tankers) involved, whenever shipping any equipment,
material, or commodities pursuant to this contract, to the
extent such vessels are available at fair and reasonable rates
for United States -flag commercial vessels. 46 CFR 381.7.
2. To furnish within 20 days following the date of loading for
shipments originating within the United States or within 30
working days following the date of loading for shipments
originating outside the United States, a legible copy of a rated,
'on -board' commercial ocean bill -of -lading in English for each
shipment of cargo described in paragraph (b)(1) of this section
to both the Contracting Officer (through the prime contractor in
the case of subcontractor bills -of -lading) and to the Office of
Cargo and Commercial Sealift (MAR -620), Maritime
Administration, Washington, DC 20590. (MARAD requires
copies of the ocean carrier's (master) bills of lading, certified
onboard, dated, with rates and charges. These bills of lading
may contain business sensitive information and therefore may
be submitted directly to MARAD by the Ocean Transportation
Intermediary on behalf of the contractor). 46 CFR 381.7.
Exhibit I- Page 13 of 14
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
ATTACHMENT A - EMPLOYMENT AND MATERIALS
PREFERENCE FOR APPALACHIAN DEVELOPMENT
HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS
ROAD CONTRACTS (23 CFR 633, Subpart B, Appendix B)
This provision is applicable to all Federal -aid projects funded
under the Appalachian Regional Development Act of 1965.
1. During the performance of this contract, the contractor
undertaking to do work which is, or reasonably may be, done
as on -site work, shall give preference to qualified persons who
regularly reside in the labor area as designated by the DOL
wherein the contract work is situated, or the subregion, or the
Appalachian counties of the State wherein the contract work is
situated, except:
a. To the extent that qualified persons regularly residing in
the area are not available.
b. For the reasonable needs of the contractor to employ
supervisory or specially experienced personnel necessary to
assure an efficient execution of the contract work.
c. For the obligation of the contractor to offer employment to
present or former employees as the result of a lawful collective
bargaining contract, provided that the number of nonresident
persons employed under this subparagraph (1 c) shall not
exceed 20 percent of the total number of employees employed
by the contractor on the contract work, except as provided in
subparagraph (4) below.
2. The contractor shall place a job order with the State
Employment Service indicating (a) the classifications of the
laborers, mechanics and other employees required to perform
the contract work, (b) the number of employees required in
each classification, (c) the date on which the participant
estimates such employees will be required, and (d) any other
pertinent information required by the State Employment
Service to complete the job order form. The job order may be
placed with the State Employment Service in writing or by
telephone. If during the course of the contract work, the
information submitted by the contractor in the original job order
is substantially modified, the participant shall promptly notify
the State Employment Service.
3. The contractor shall give full consideration to all qualified
job applicants referred to him by the State Employment
Service. The contractor is not required to grant employment to
any job applicants who, in his opinion, are not qualified to
perform the classification of work required.
4. If, within one week following the placing of a job order by
the contractor with the State Employment Service, the State
Employment Service is unable to refer any qualified job
applicants to the contractor, or less than the number
requested, the State Employment Service will forward a
certificate to the contractor indicating the unavailability of
applicants. Such certificate shall be made a part of the
contractor's permanent project records. Upon receipt of this
certificate, the contractor may employ persons who do not
normally reside in the labor area to fill positions covered by the
certificate, notwithstanding the provisions of subparagraph (1 c)
above.
5. The provisions of 23 CFR 633.207(e) allow the
contracting agency to provide a contractual preference for the
use of mineral resource materials native to the Appalachian
region.
6. The contractor shall include the provisions of Sections 1
through 4 of this Attachment A in every subcontract for work
which is, or reasonably may be, done as on -site work.
Exhibit I- Page 14 of 14
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
EXHIBIT J
ADDITIONAL FEDERAL REQUIREMENTS
Federal laws and regulations that may be applicable to the Work include:
Executive Order 11246
Executive Order 11246 of September 24, 1965 entitled "Equal Employment Opportunity,"
as amended by Executive Order 11375 of October 13, 1967 and as supplemented in
Department of Labor regulations (41 CFR Chapter 60) (All construction contracts awarded
in excess of $10,000 by the Local Agencies and their contractors or the Local Agencies).
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).
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 Agencies and the Local Agencies when required by Federal Agreement program
legislation. This act requires that all laborers and mechanics employed by contractors or
sub -contractors to work on construction projects financed by federal assistance must be paid
wages not less than those established for the locality of the project by the Secretary of
Labor).
Contract Work Hours and Safety Standards Act
Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-
330) as supplemented by Department of Labor regulations (29 CFR Part 5). (Construction
contracts awarded by the Local Agency's in excess of $2,000, and in excess of $2,500 for
other contracts which involve the employment of mechanics or laborers).
Clean Air Act
Standards, orders, or requirements issued under section 306 of the Clean 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 more than $100,000).
Energy Policy and Conservation Act
Mandatory standards and policies relating to energy efficiency which are contained in the
state energy conservation plan issued in compliance with the Energy Policy and Conservation
Act (Pub. L. 94-163).
Uniform Guidance
Office of Management and Budget Uniform Administrative Requirements, Cost Principles,
and Audit Requirements for Federal Awards (Title 2 Code of the Federal Regulations Part
200), which supersedes requirements from OMB Circulars A-21, A-87, A-110, and A-122,
OMB Circulars A-89, A-102, and A- 133, and the guidance in Circular A-50 on Single
Audit Act follow-up. The terms and conditions of the Uniform Guidance flow down to
Awards to Subrecipients unless the Uniform Guidance or the terms and conditions of the
Federal Award specifically indicate otherwise.
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.
Exhibit J - Page 1 of 11
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Nondiscrimination
The Local Agency shall not exclude from participation in, deny the benefits of, or subject
to discrimination any person in the United States on the ground of race, color national origin,
sex, age or disability. Prior to the receipt of any Federal financial assistance from CDOT, the
Local Agency shall execute the attached Standard DOT Title VI assurance. As appropriate,
the Local Agency shall include Appendix A, B, or C to the Standard DOT Title VI assurance
in any contract utilizing federal funds, land, or other aid. The Local Agency shall also include
the following in all contract advertisements:
The [Local Agency], in accordance with the provisions of Title VI of the
Civil Rights Act of 1964 (79 Stat. 252, 42 US. C. § 2000d to 2000d-4) and
the Regulations, hereby notifies all bidders that it will affirmatively ensure
that any contract entered into pursuant to this advertisement, DBEs will be
afforded full and fair opportunity to submit bids in response to this
invitation and will not be discriminated against on the grounds of race,
color, or national origin in consideration for any award.
ADA
In any contract utilizing federal funds, land, or other federal aid, the Local Agency shall
require the federal- aid recipient or contractor to provide a statement of written assurance
that they will comply with Section 504and not discriminate on the basis of disability.
Uniform Relocation Assistance and Real Property Acquisition Policies Act
The Uniform Relocation Assistance and Real Property Acquisition Policies Act, as amended
(Public Law 91- 646, as amended and Public Law 100-17, 101 Stat. 246-256). (If the
contractor is acquiring real property and displacing households or businesses in the
performance of the Agreement).
Drug -Free Workplace Act
The Drug -Free Workplace Act (Public Law 100-690 Title V, subtitle D, 41 USC 701 et seq.).
Age Discrimination Act of 1975
The Age Discrimination Act of 1975, 42 U.S.C. Sections 6101 et. seq. and its implementing
regulation, 45
C.F.R. Part 91; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, as amended,
and implementing regulation 45 C.F.R. Part 84.
23 C.F.R. Part 172
23 C.F.R. Part 172, concerning "Administration of Engineering and Design Related Contracts".
23 C.F.R Part 633
23 C.F.R Part 633, concerning "Required Contract Provisions for Federal -Aid Construction
Contracts".
23 C.F.R. Part 635
23 C.F.R. Part 635, concerning "Construction and Maintenance Provisions".
Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973
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.
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
Exhibit J - Page 2 of 11
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
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.
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.
Incorporation of Provisions §22
The Contractor will include the provisions of this Exhibit J in every subcontract, including
procurement of materials and leases of equipment, unless exempt by the Regulations, orders,
or instructions issued pursuant thereto. The Contractor will take such action with respect to
any subcontract or procurement as the State or the FHWA may direct as a means of enforcing
such provisions including sanctions for noncompliance; provided, however, that, in the event
the Contractor becomes involved in, or is threatened with, litigation with a Subcontractor or
supplier as a result of such direction, the Contractor may request the State to enter into such
litigation to protect the interest of the State and in addition, the Contractor may request the
FHWA to enter into such litigation to protect the interests of the United States.
Exhibit J - Page 3 of 11
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
SAMPLE
The United States Department of Transportation (USDOT) Standard Title VI/Non-Discrimination
Assurances for Local Agencies
DOT Order No. 1050.2A
The [Local Agency] (herein referred to as the "Recipient"), HEREBY AGREES THAT, as a condition to receiving
any Federal financial assistance from the U.S. Department of Transportation (DOT), through the Colorado Department
of Transportation and the Federal Highway Administration (FHWA), Federal Transit Administration (FTA), and
Federal Aviation Administration (FAA), is subject to and will comply with the following:
Statutorv/Regulatory Authorities
Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on
the basis of race, color, national origin);
49 C.F.R. Part 21 (entitled Non-discrimination In Federally -Assisted Programs Of The Department Of
Transportation -Effectuation Of Title VI Of The Civil Rights Act Of 1964);
28 C.F.R. section 50.3 (U. S. Department of Justice Guidelines for Enforcement of Title VI of the Civil Rights
Act of 1964);
The preceding statutory and regulatory cites hereinafter are referred to as the "Acts" and "Regulations," respectively.
General Assurances
In accordance with the Acts, the Regulations, and other pertinent directives, circulars, policy, memoranda, and/or
guidance, the Recipient hereby gives assurance that it will promptly take any measures necessary to ensure that:
"No person in the United States shall, on the grounds of race, color, or national origin, be excluded from
participation in, be denied the benefits of or be otherwise subjected to discrimination under any program or
activity, 'for which the Recipient receives Federal financial assistance from DOT, including the FHWA, FTA,
or FAA.
The Civil Rights Restoration Act of 1987 clarified the original intent of Congress, with respect to Title VI and other
Non-discrimination requirements (The Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of
1973), by restoring the broad, institutional -wide scope and coverage of these non- discrimination statutes and
requirements to include all programs and activities of the Recipient, so long as any portion of the program is Federally
assisted.
Specific Assurances
More specifically, and without limiting the above general Assurance, the Recipient agrees with and gives the following
Assurances with respect to its Federally assisted FHWA, FTA, and FAA assisted programs:
1. The Recipient agrees that each "activity," "facility," or "program," as defined in §§ 21.23(b) and 21.23(e) of
49 C.F.R. § 21 will be (with regard to an "activity") facilitated or will be (with regard to a "facility") operated or
will be (with regard to a "program") conducted in compliance with all requirements imposed by, or pursuant to
the Acts and the Regulations.
2. The Recipient will insert the following notification in all solicitations forbids, Requests for Proposals for work,
or material subject to the Acts and the Regulations made in connection with all FHWA, FTA and FAA programs
and, in adapted form, in all proposals for negotiated agreements regardless of funding source:
3. "The [Local Agency] in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat.
252, 42 US.C. §§ 2000d to 2000d-4) and the Regulations, hereby notifies all bidders that it will affirmatively
ensure that any contract entered into pursuant to this advertisement, disadvantaged business enterprises will
be afforded full and fair opportunity
Exhibit J - Page 4 of 11
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
4. to submit bids in response to this invitation and will not be discriminated against on the grounds of
race, color, or national origin in consideration for an award.
5. The Recipient will insert the clauses of Appendix A and E of this Assurance in every contract or agreement
subject to the Acts and the Regulations.
6. The Recipient will insert the clauses of Appendix B of this Assurance, as a covenant running with the land,
in any deed from the United States effecting or recording a transfer of real property, structures, use, or
improvements thereon or interest therein to aRecipient.
7. That where the Recipient receives Federal financial assistance to construct a facility, or part of a facility,
the Assurance will extend to the entire facility and facilities operated in connection therewith.
8. That where the Recipient receives Federal financial assistance in the form, or for the acquisition of real
property or an interest in real property, the Assurance will extend to rights to space on, over, or under such
property.
9. That the Recipient will include the clauses set forth in Appendix C and Appendix D of this Assurance, as a
covenant running with the land, in any future deeds, leases, licenses, permits, or similar instruments entered
into by the Recipient with other parties:
a. for the subsequent transfer of real property acquired or improved under the applicable activity, project,
or program; and
b. for the construction or use of, or access to, space on, over, or under real property acquired or improved
under the applicable activity, project, or program.
10. That this Assurance obligates the Recipient for the period during which Federal financial assistance is
extended to the program, except where the Federal financial assistance is to provide, or is in the form of,
personal property, or real property, or interest therein, or structures or improvements thereon, in which case
the Assurance obligates the Recipient, or any transferee for the longer of the following periods:
a. the period during which the property is used for a purpose for which the Federal financial assistance is
extended, or for another purpose involving the provision of similar services or benefits; or
b. the period during which the Recipient retains ownership or possession of the property.
11. The Recipient will provide for such methods of administration for the program as are found by the Secretary
of Transportation or the official to whom he/she delegates specific authority to give reasonable guarantee
that it, other recipients, sub -recipients, sub -grantees, contractors, subcontractors, consultants, transferees,
successors in interest, and other participants of Federal financial assistance under such program will comply
with all requirements imposed or pursuant to the Acts, the Regulations, and this Assurance.
12. The Recipient agrees that the United States has a right to seek judicial enforcement with regard to any
matter arising under the Acts, the Regulations, and this Assurance.
By signing this ASSURANCE, the [Local Agency] also agrees to comply (and require any sub -recipients, sub -
grantees, contractors, successors, transferees, and/or assignees to comply) with all applicable provisions governing
the FHWA, FTA, and FAA's access to records, accounts, documents, information, facilities, and staff. You also
recognize that you must comply with any program or compliance reviews, and/or complaint investigations conducted
by CDOT, FHWA, FTA, or FAA. You must keep records, reports, and submit the material for review
Exhibit J - Page 5 of 11
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
upon request to CDOT, FHWA, FTA, or FAA, or its designee in a timely, complete, and accurate way. Additionally,
you must comply with all other reporting, data collection, and evaluation requirements, as prescribed by law or detailed
in program guidance.
[Local Agency] gives this ASSURANCE in consideration of and for obtaining any Federal grants, loans, contracts,
agreements, property, and/or discounts, or other Federal -aid and Federal financial assistance extended after the date
hereof to the recipients by the U.S. Department of Transportation under the FHWA, FTA, and FAA. This ASSURANCE
is binding on [Local Agency], other recipients, sub -recipients, sub -grantees, contractors, subcontractors and their
subcontractors', transferees, successors in interest, and any other participants in the FHWA, FTA, and FAA funded
programs. The person(s) signing below is authorized to sign this ASSURANCE on behalf of the Recipient.
(Name of Recipient)
by
(Signature of Authorized Official)
DATED
Exhibit J - Page 6 of 11
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
APPENDIX A
During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter
referred to as the "contractor") agrees as follows:
1. Compliance with Regulations: The contractor (hereinafter includes consultants) will comply with the Acts
and the Regulations relative to Non-discrimination in Federally -assisted programs of the U.S. Department of
Transportation, FHWA, as they may be amended from time to time, which are herein incorporated by reference
and made a part of this contract.
2. Non-discrimination: The contractor, with regard to the work performed by it during the contract, will not
discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors,
including procurements of materials and leases of equipment. The contractor will not participate directly or
indirectly in the discrimination prohibited by the Acts and the Regulations, including employment practices
when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR Part 21.
3. Solicitations for Subcontracts, Including Procurements 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 procurements of materials, or leases of equipment, each potential subcontractor or
supplier will be notified by the contractor of the contractor's obligations under this contract and the Acts and
the Regulations relative to Non-discrimination on the grounds of race, color, or national origin.
4. Information and Reports: The contractor will provide all information and reports required by the Acts, the
Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other
sources of information, and its facilities as may be determined by the [Local Agency], CDOT or FHWA to be
pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information
required of a contractor is in the exclusive possession of another who fails or refuses to furnish the
information, the contractor will so certify to the [Local Agency], CDOT or FHWA, as appropriate, and will
set forth what efforts it has made to obtain the information.
5. Sanctions for Noncompliance: In the event of a contractor's noncompliance with the non-discrimination
provisions of this contract, the [Local Agency] will impose such contract sanctions as it, CDOT or FHWA
may determine to be appropriate, including, but not limited to:
a. withholding payments to the contractor under the contract until the contractor complies; and/or
b. cancelling, terminating, or suspending a contract, in whole or in part.
6. Incorporation of Provisions: The contractor will include the provisions of paragraphs one through six in
every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts,
the Regulations and directives issued pursuant thereto. The contractor will take action with respect to any
subcontract or procurement as the Recipient or the [Local Agency], CDOT or FHWA may direct as a means
of enforcing such provisions including sanctions for noncompliance. Provided, that if the contractor becomes
involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the
contractor may request the Recipient to enter into any litigation to protect the interests of the Recipient. In
addition, the contractor may request the United States to enter into the litigation to protect the interests of the
United States.
Exhibit J - Page 7 of 11
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
APPENDIX B
CLAUSES FOR DEEDS TRANSFERRING UNITED STATES PROPERTY
The following clauses will be included in deeds effecting or recording the transfer of real property, structures, or
improvements thereon, or granting interest therein from the United States pursuant to the provisions of Assurance 4:
NOW, THEREFORE, the U.S. Department of Transportation as authorized by law and upon the condition that the
[Local Agency] will accept title to the lands and maintain the project constructed thereon in accordance with (Name of
Appropriate Legislative Authority), the Regulations for the Administration of (Name of Appropriate Program), and
the policies and procedures prescribed by the FHWA of the U.S. Department of Transportation in accordance and in
compliance with all requirements imposed by Title 49, Code of Federal Regulations, U.S. Department of
Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally -assisted programs of the
U.S Department of Transportation pertaining to and effectuating the provisions of Title VI of the Civil Rights Act of
1964 (78 Stat. 252; 42 U.S.C. § 2000d to 2000d-4), does hereby remise, release, quitclaim and convey unto the [Local
Agency] all the right, title and interest of the U.S. Department of Transportation in and to said lands described in Exhibit
A attached hereto and made a part hereof.
(HABENDUM CLAUSE)
TO HAVE AND TO HOLD said lands and interests therein unto [Local Agency] and its successors forever, subject,
however, to the covenants, conditions, restrictions and reservations herein contained as follows, which will remain in
effect for the period during which the real property or structures are used for a purpose for which Federal financial
assistance is extended or for another purpose involving the provision of similar services or benefits and will be binding
on the [Local Agency] its successors and assigns.
The [Local Agency], in consideration of the conveyance of said lands and interests in lands, does hereby covenant and
agree as a covenant running with the land for itself, its successors and assigns, that (1) no person will on the grounds of
race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to
discrimination with regard to any facility located wholly or in part on, over, or under such lands hereby conveyed [,]
[and]* (2) that the [Local Agency] will use the lands and interests in lands and interests in lands so conveyed, in
compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, U.S. Department of
Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally -assisted programs of the
U.S. Department of Transportation, Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations and
Acts may be amended [, and (3) that in the event of breach of any of the above -mentioned non-discrimination conditions,
the Department will have a right to enter or re-enter said lands and facilities on said land, and that above described land
and facilities will thereon revert to and vest in and become the absolute property of the U.S. Department of Transportation
and its assigns as such interest existed prior to this instruction]. *
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear
the purpose of Title VI.)
Exhibit J - Page 8 of 11
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
APPENDIX C
CLAUSES FOR TRANSFER OF REAL PROPERTY ACQUIRED OR IMPROVED UNDER THE
ACTIVITY, FACILITY, OR PROGRAM
The following clauses will be included in deeds, licenses, leases, permits, or similar instruments entered into by the
[Local Agency] pursuant to the provisions of Assurance 7(a):
A. The (grantee, lessee, permittee, etc. as appropriate) for himself/herself, his/her heirs, personal representatives,
successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree [in the
case of deeds and leases add "as a covenant running with the land"] that:
In the event facilities are constructed, maintained, or otherwise operated on the property described in this (deed,
license, lease, permit, etc.) for a purpose for which a U.S. Department of Transportation activity, facility, or
program is extended or for another purpose involving the provision of similar services or benefits, the (grantee,
licensee, lessee, permittee, etc.) will maintain and operate such facilities and services in compliance with all
requirements imposed by the Acts and Regulations (as may be amended) such that no person on the grounds
of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise
subjected to discrimination in the use of said facilities.
B. With respect to licenses, leases, permits, etc., in the event of breach of any of the above Non-discrimination
covenants, [Local Agency] will have the right to terminate the (lease, license, permit, etc.) and to enter, re-enter,
and repossess said lands and facilities thereon, and hold the same as if the (lease, license, permit, etc.) had never
been made or issued. *
C. With respect to a deed, in the event of breach of any of the above Non-discrimination covenants, the [Local Agency]
will have the right to enter or re-enter the lands and facilities thereon, and the above described lands and facilities
will there upon revert to and vest in and become the absolute property of the [Local Agency] and its assigns. *
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make
clear the purpose of Title VI.)
Exhibit J - Page 9 of 11
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
APPENDIX D
CLAUSES FOR CONSTRUCTION/USE/ACCESS TO REAL PROPERTY ACQUIRED UNDER THE
ACTIVITY, FACILITY OR PROGRAM
The following clauses will be included in deeds, licenses, permits, or similar instruments/agreements entered into by
[Local Agency] pursuant to the provisions of Assurance 7(b):
A. The (grantee, licensee, permittee, etc., as appropriate) for himself/herself, his/her heirs, personal representatives,
successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the
case of deeds and leases add, "as a covenant running with the land") that (1) no person on the ground of race,
color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected
to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under
such land, and the furnishing of services thereon, no person on the ground of race, color, or national origin, will
be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, (3) that the
(grantee, licensee, lessee, permittee, etc.) will use the premises in compliance with all other requirements imposed
by or pursuant to the Acts and Regulations, as amended, set forth in this Assurance.
B. With respect to (licenses, leases, permits, etc.), in the event of breach of any of the above Non- discrimination
covenants, [Local Agency] will have the right to terminate the (license, permit, etc., as appropriate) and to enter
or re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, permit, etc., as
appropriate) had never been made or issued. *
C. With respect to deeds, in the event of breach of any of the above Non-discrimination covenants, [Local Agency]
will there upon revert to and vest in and become the absolute property of [Local Agency] of Transportation and its
assigns. *
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make
clear the purpose of Title VI.)
Exhibit J - Page 10 of 11
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
APPENDIX E
During the performance of this contract, the contractor, for itself, its assignees, and successors
in interest (hereinafter referred to as the "contractor") agrees to comply with the following non-
discrimination statutes and authorities; including but not limited to:
Pertinent Non -Discrimination Authorities:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252),
(prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part
21.
• The Uniform Relocation Assistance and Real Property Acquisition Policies Act of
1970, (42 U.S.C. § 4601),(prohibits unfair treatment of persons displaced or whose
property has been acquired because of Federal or Federal -aid programs and projects);
• Federal -Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination
on the basis of sex);
• Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended,
(prohibits discrimination on the basis of disability); and 49 CFR Part 27;
• The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits
discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as
amended, (prohibits discrimination based on race, creed, color, national origin, orsex);
• The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope,
coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age
Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by
expanding the definition of the terms "programs or activities" to include all of the
programs or activities of the Federal -aid recipients, sub -recipients and contractors,
whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act, which prohibit discrimination
on the basis of disability in the operation of public entities, public and private
transportation systems, places of public accommodation,and certain testing entities (42
U.S.C. § § 12131-12189) as implemented by Department of Transportation regulations
at 49 C.F.R. parts 37 and 38;
• The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123)
(prohibits discrimination on the basis of race, color, national origin, and sex);
• Executive Order 12898, Federal Actions to Address Environmental Justice in Minority
Populations and Low -Income Populations, which ensures non-discrimination against
minority populations by discouraging programs, policies, and activities with
disproportionately high and adverse human health or environmental effects on minority
and low-income populations;
• Executive Order 13166, Improving Access to Services for Persons with Limited
English Proficiency, and resulting agency guidance, national origin discrimination
includes discrimination because of Limited English proficiency (LEP). To ensure
compliance with Title VI, you must take reasonable steps to ensure that LEP persons
have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
• Title IX of the Education Amendments of 1972, as amended, which prohibits you from
discriminating because of sex in education programs or activities (20 U.S.C. 1681 et
seq).
Exhibit J - Page 11 of ll
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
:4.1 I.1 i'
':.
Exhibit K
CDOT SUBRECIPIENT RISK ASSESSMENT
Generate a pdf version for circulation to others by clicking the Print to PDF button
below.
Grantee Entity
Entity Name (Subrecipient)
Representative for this Self Assessment (Person Completing this Form)
Name Email
Chief Administrative Officer, Chief Financial Officer (CFO) or Equivalent
Name Email
Project Manager
Name
Project Details
Name of Project / Program
Project Number
Grant Program Awarded
Estimated Award Period
Risk Assessment
Assessment Date
CDOT Project Manager
Name Email
Email
Project Sub -Account Number''''
Phone
Exhibit K- Page 1 of 9
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Instructions: (See "Instructions" tab for more information)
1. All questions are required to be answered.
2. Utilize the "Comment" section below the last question for additional responses.
3. When complete, check the box at the bottom of the form to authorize.
4. Click the Submit button when ready to submit.
5. A copy of the responses will be emailed to the Assessor Email.
Note: Fields marked with "` are required.
Experience Assessment
1. Is your entity new to operating or managing federal funds (has not done so within the past
three years)?
('mm Yes ('mm No
2. Is this funding program new for your entity (managed for less than three years)? Examples
of funding programs include CMAQ, TAP, STP-M, etc."`
('mm' Yes (mm ' No
3. Does your staff assigned to the program have at least three full years of experience with
this federal program?
('mm Yes (mm ' No
Monitoring/Audit Assessment
4. Has your entity had an on -site project or grant review from an external entity (e.g., CDOT,
FHWA) within the last three years?
('mm Yes ('mm No 'N/A
5a. Were there non-compliance issues in this prior review?
r` ' Yes mm ' No ' N /A
Operation Assessment
6. Does your entity have a time and effort reporting system in place to account for 100% of
all employees' time, that can provide a breakdown of the actual time spent on each funded
project?
('mm ' Yes ('mm ' No
Exhibit K- Page 2 of 9
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Financial Assessment
7. Does your entity have an indirect cost rate that is approved and current?
mm , Yes No
No
8. Is this grant/award 10% or more of your entity's overall funding?''
.. >10% ��.� <10%
9. Has your entity returned lapsed* funds?
*Funds "lapse" when they are no longer available for obligation.
Yes No No (�...)� N/A
10. Has your entity had difficulty meeting local match requirements in the last three years?''
Yes °'u_M1, No N/A
11 a. What is the total federal funding your entity has been awarded for the last federal fiscal
year?''
11 b. What is your entity's fiscal year
Internal Control Assessment
12. Has your entity had any significant changes in key personnel or accounting system(s) in
the last year? (e.g., Controller, Exec Director, Program Mgr, Accounting Mgr, etc.)
M,mm Yes No N /A
13. Does your entity have financial procedures and controls in place to accommodate a
federal -aid (or other federally funded) project?
('mm Yes ('mm No
14. Does your accounting system identify the receipts and expenditures of program funds
separately for each award?
('mm Yes ('mm No
15. Will your accounting system provide for the recording of expenditures for each award by
the budget cost categories shown in the approved budget?
('mm Yes ('mm No
16. Does your agency have a review process for all expenditures that will ensure that all costs
are reasonable, allowable and allocated correctly to each funding source?
('mm Yes No No ' N/A
17. How many total FTE perform accounting functions within your organization?
('mm >=6 ('mm ' 2 to 5M; ' <2
Exhibit K- Page 3 of 9
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Impact Assessment
18. For this upcoming federal award or in the immediate future, does your entity have any
potential conflicts of interest* in accordance with applicable Federal awarding agency
policy? (*Any practices, activities or relationships that reasonably appear to be in conflict with the full
performance of the Subrecipient's obligations to the State.)"
Yes No
19. For this award, has your entity disclosed to CDOT, in writing, violations of Federal
criminal law involving fraud, bribery, or gratuity violations potentially affecting the award?
Select Yes if one or more violation(s) and have either disclosed previously to CDOT or as part of
this form.
Select No if one or more violation(s) and have not disclosed previously or will not disclose as part
of this form.
Select N/A if there are no violations.'
Yes No N/A
Exhibit K- Page 4 of 9
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Program Management Assessment
20. Does your entity have a written process/procedure or certification statement approved by
your governing board ensuring critical project personnel are capable of effectively managing
Federal -aid (or other federally funded) projects?
Yes No N/A
21. Does your entity have written procurement policies or certification statement for
consultant selection approved by your governing board in compliance with 23 CFR 172*?
(*The Brooks Act requires agencies to promote open competition by advertising, ranking, selecting, and negotiating
contracts based on demonstrated competence and qualifications, at a fair and reasonable price.)
Yes No N/A
22a. Is your staff familiar with the relevant CDOT manuals and federal program requirements?'
Yes No N/A
22b. Does your entity have a written policy or a certification statement approved by your
governing board assuring federal -aid (or other federally funded) projects will receive
adequate inspections?
22c. Does your entity have a written process or a certification statement approved by your
governing board assuring a contractor's work will be completed in conformance with
approved plans and specifications?
Yes No N/A
22d. Does your entity have a written policy or certification statement approved by your
governing board assuring that materials installed on the projects are sampled and tested per
approved processes.
Yes No N/A
22e. Does your entity have a written policy or certification statement approved by your
governing board assuring compliance with the Uniform Relocation Assistance and Real
Property Acquisitions Act of 1970 and implementing regulations on federally funded projects?'
Yes No N/A
Comments - As needed, include the question number and provide comments related to the above
questions.
I have confirmed with the Chief Administrative Officer or Chief Financial Officer of this entity
to certify that this information is true and correct.
Exhibit K- Page 5 of 9
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Instructions and Guide to the SUBRECIPIENT RISK ASSESSMENT (Self Assessment)
Definitions
GAAP: Generally Accepted Accounting Principles
GAAS: Generally Accepted Auditing Standards
GAGAS: Generally Accepted Government Auditing Standards
OMB: Office of Management and Budget
Using the Assessment:
The answers provided on this self -assessment questionnaire assist in the determination of a
subrecipient's risk of noncompliance with State and Federal statutes, regulations and the terms and
conditions of the subaward in compliance with 2 CFR §200.332 (b). Some questions require a simple
yes, no, or N/A answer. However, additional information may be provided in the comments sections
and should be included if the answer demonstrates that the subrecipient has internal controls in one
area, but not throughout the process. For example: The subrecipient may describe a good process
for determining allowability and reasonableness but not fully explain how the cost is allocated
across funding sources. Additional explanation for each question is provided below.
Assessment Reviewers: If a question is not answered or the answer does not address the question
asked, then select the appropriate column to calculate the highest risk rating for that category. If
you receive an answer that does not fit into one of the drop -down choices, please contact the
Internal Audit Division to discuss. ALL questions should be answered.
Experience Assessment
Q1. Previous Experience of Subrecipient with managing federal funds
A subrecipient that has experience in managing federal funds has a lower risk of error (or non-
compliance with federal requirements) than a subrecipient with little to no experience.
Q2. Previous Experience of Subrecipient with funding program
A subrecipient experienced in managing a particular federal funding program will have a lower risk
of non-compliance than a subrecipient who is familiar with the funding program. Each funding
program has specific guidance and regulations.
Q3. Previous Experience of Staff with funding -program
A subrecipient with staff that has little experience in managing a particular funding program has a
higher risk of error than an entity with staff experienced with the funding program.
Exhibit K- Page 6 of 9
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Monitoring/Audit Assessment
Q4. Recent Review
A subrecipient who has not had a recent financial or program review is a higher risk since CDOT is
not familiar with or had an opportunity to review their processes or if they comply with guidance
and regulations.
Q5. Non-compliance Issues in Prior Visit
A subrecipient who has experienced non-compliance issues in the past will be assessed as a higher
risk so the appropriate monitoring can occur to verify if the non-compliance issues can be mitigated.
Operation Assessment
Q6. Timesheet Maintenance
§200.430 of the Supercircular requires salaries and wages to be based on records that accurately
reflect the work performed. These records must reasonably reflect the total activity for which the
employee is compensated by the non -Federal entity, not exceeding 100% of compensated activities.
Financial Assessment
Q7. Indirect Cost Rate
Whether a non -Federal entity has an indirect cost rate or not, will not impact the overall risk rating
on this form. However, if an indirect cost rate will be requested, the non -Federal entity must notify
CDOT Audit so that the indirect cost rate can be reviewed and included in the Federal award.
Q8. Size of Grant
If the funds received from CDOT make up a substantial portion of the entity's overall funding, there
is typically a higher risk to the funding if the entity were to have any financial issues.
Q9. Lapsed Funds
Funds "lapse" when they are no longer utilized or available for obligation. Funds lapse at the end of
the applicable fiscal year, unless another date is provided by statute or contract. If a subrecipient
has previously allowed funds to lapse they are considered higher risk.
Q10. Local Match
Difficulty in meeting local match requirements can affect project delivery and is indicative of higher
risk.
Q1 1. Total Federal Funds
This information is important in deciding how much federal funding makes up the total funding
sources for the entity. If an entity manages a small amount, the risk is higher that they will be
unfamiliar with the fiscal requirements of accounting for the funds. "Total Federal Funds" includes
funds for projects in which your entity administers/performs the work (i.e. construction projects),
but not for funds that you pass -through to other entities.
Exhibit K- Page 7 of 9
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Internal Control Assessment
Q1 2. Significant Changes in Key Personnel
Significant changes in key personnel can increase the risk of non-compliance with federal
requirements for that entity. For example, a new controller may not be familiar with subaward
requirements, or a new executive director could make large changes in the entity that may increase
their risk of consistent compliance.
Q1 3. Financial Procedures and Controls
Subrecipients with effective written procedures and financial controls, along with staff familiar with
CDOT procedures and manuals, will have a lower risk of non-compliance with federal requirements.
Q14. Receipts and Expenditures Separated per Each Award
Subrecipients with accounting systems in which separate costs are maintained for each award
reduce the risk that costs are ineligible due to being comingled and billed to multiple awards more
than once.
Q1 5. Recording of Expenditures by Budget Cost Categories
Subrecipients with accounting systems that can track costs by award AND by the different types of
costs allowed in the award (i.e. labor, sub-consultant/contractor, and materials) reduce the risk
that costs are not allocable (see below).
Q16. Reasonableness, allowability, allocability
Allowability - Expenses charged to a grant must meet the following allowability criteria:
a) The costs must be reasonable.
b) The costs must be given consistent treatment through application of those generally accepted
accounting principles appropriate to the circumstances.
c) The costs must conform to any limitations or exclusions set forth in the grant agreement or in the
Federal Cost Principles.
Allocability:
Once allowability criteria have been met, the cost must be evaluated against the criterion of
allocability. That is, the cost has been incurred solely to support or advance the work of a specific
grant award. It also means the process of assigning a cost, or a group of costs, to one or more cost
objectives, is in reasonable and realistic proportion to the benefit provided or other equitable
relationship. A cost objective may be a major function of the agency, a particular service or project,
a sponsored agreement, or indirect Cost activity. The process may entail assigning a cost(s) directly
to a final cost objective or through one or more intermediate cost objectives.
Reasonableness:
The cost must be able to withstand public scrutiny. (i.e., objective individuals not affiliated with the
institution would agree that a cost is appropriate on a grant award or as a component in its indirect
cost proposal)
Q17. Number of FTEs
This is associated with the number (#) of individual grants and amount of funding the entity receives
If the entity only has a small # of grants, then a small # of FTE would generally suffice. However, if
the entity has a large # of grants, but only a small # of accounting FTE, then there is a higher risk that
the funds may not be accounted for correctly.
Exhibit K- Page 8 of 9
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Impact Assessment
Q1 8. Conflicts of Interest
A subrecipient with no or few conflicts of interest, demonstrates a greater understanding of federal
requirements than a subrecipient with many conflicts. See 2 CFR §200.112. Under the Uniform
Guidance, States (and subrecipients) have to disclose in writing any potential conflicts of interest.
Q19. Violations of Federal Criminal Law
A subrecipient with many violations of criminal law affecting the federal award, demonstrates a
disregard for rules and requirements and is at an increased risk of non-compliance than a
subrecipient with no or few violations. See 2 CFR §200.113.
Program Management Assessment
Questions #20 - #22 on the Self -Assessment are applicable to construction projects and would not be
suitable for use, for example, with planning projects. Cases in which the question does not apply,
mark N/A.
Q20. Critical Project Personnel
If the local entity has a process for ensuring that critical project personnel are qualified to manage
federal -aid (or other federally funded) projects, or provide certification statements to this effect,
they are at less risk of non-compliance.
Q21. Written Procurement Policies
The procedures and laws a local entity must follow in obtaining professional consultant services are
lengthy and complex. A local entity who has written procedures approved by the entity's governing
board for staff or who certify that all laws will be followed is at less risk of non-compliance.
Q22. Program Management Questions a - e
These questions are intended to ensure an understanding of rules and regulations regarding federal -
aid (or other federally funded) projects. A local entity must be able to demonstrate knowledge in
these areas in order to be at low risk for non-compliance.
General
Update Risk Assessment
The Subrecipient Risk Assessment is to assess the risk related to the subrecipient. It is required to be
updated based upon the frequency identified in the Subrecipient Monitoring and Risk Assessment
Manual.
Exhibit K- Page 9 of 9
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF Khibit L
2 C.F.R. Part 200
https://www.ecfr.gov/current/title-2/subtitle-A/chapter-I I/part-200
Title 2 —Federal Financial Assistance
Subtitle A —Office of Management and Budget Guidance for Federal Financial Assistance
Chapter 11 —Office of Management and Budget Guidance
Part 200 Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards
SubpartA Acronyms and Definitions
Acronyms
§ 200.0
Acronyms.
§ 200.1
Definitions.
Subpart B General
Provisions
§ 200.100
Purpose.
§ 200.101
Applicability.
§ 200.102
Exceptions.
§ 200.103
Authorities.
§ 200.104
Supersession.
§ 200.105
Effect on other issuances.
§ 200.106
Agency implementation.
§ 200.107
OMB responsibilities.
§ 200.108
Inquiries.
§ 200.109
Review date.
§ 200.110
Effective date.
§ 200.111
English language.
§ 200.112
Conflict of interest.
§ 200.113
Mandatory disclosures.
Subpart C Pre -Federal Award Requirements and Contents of Federal Awards
§ 200.200
Purpose.
§ 200.201
Use of grants, cooperative agreements, fixed amount awards, and contracts.
§ 200.202
Program planning and design.
§ 200.203
Requirement to provide public notice of Federal financial assistance programs.
§ 200.204
Notices of funding opportunities.
§ 200.205
Federal agency review of merit of proposals.
§ 200.206
Federal agency review of risk posed by applicants.
§ 200.207
Standard application requirements.
§ 200.208
Specific conditions.
§ 200.209
Certifications and representations.
§ 200.210
Pre -award costs.
Exhibit L - Page 1 of 7
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
2 C.F.R. Part 200
§ 200.211 Information contained in a Federal award.
§ 200.212 Public access to Federal award information.
§ 200.213 Reporting a determination that an applicant is not qualified for a Federal award.
§ 200.214 Suspension and debarment.
§ 200.215 Never contract with the enemy.
§ 200.216 Prohibition on certain telecommunications and video surveillance equipment or
services.
§ 200.217 Whistleblower protections.
Subpart D Post Federal Award Requirements
§ 200.300 Statutory and national policy requirements.
§ 200.301 Performance measurement.
§ 200.302 Financial management.
§ 200.303 Internal controls.
§ 200.304 Bonds.
§ 200.305 Federal payment.
§ 200.306 Cost sharing.
§ 200.307 Program income.
§ 200.308 Revision of budget and program plans.
§ 200.309 Modifications to Period of Performance.
Property Standards
§ 200.310 Insurance coverage.
§ 200.311 Real property.
§ 200.312 Federally owned and exempt property.
§ 200.313 Equipment.
§ 200.314 Supplies.
§ 200.315 Intangible property.
§ 200.316 Property trust relationship.
Procurement Standards
§ 200.317 Procurements by States and Indian Tribes.
§ 200.318 General procurement standards.
§ 200.319 Competition.
§ 200.320 Procurement methods.
§ 200.321 Contracting with small businesses, minority businesses, women's business
enterprises, veteran -owned businesses, and labor surplus area firms.
§ 200.322 Domestic preferences for procurements.
§ 200.323 Procurement of recovered materials.
§ 200.324 Contract cost and price.
§ 200.325 Federal agency or pass -through entity review.
§ 200.326 Bonding requirements.
Exhibit L - Page 2 of 7
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
2 C.F.R. Part 200
§ 200.327 Contract provisions.
Performance and Financial Monitoring and Reporting
§ 200.328
Financial reporting.
§ 200.329
Monitoring and reporting program performance.
§ 200.330
Reporting on real property.
Subrecipient Monitoring and Management
§ 200.331
Subrecipient and contractor determinations.
§ 200.332
Requirements for pass -through entities.
§ 200.333
Fixed amount subawards.
Record Retention and Access
§ 200.334 Record retention requirements.
§ 200.335 Requests for transfer of records.
§ 200.336 Methods for collection, transmission, and storage of information.
§ 200.337 Access to records.
§ 200.338 Restrictions on public access to records.
Remedies for Noncompliance
§ 200.339 Remedies for noncompliance.
§ 200.340 Termination.
§ 200.341 Notification of termination requirement.
§ 200.342 Opportunities to object, hearings, and appeals.
§ 200.343 Effects of suspension and termination.
Closeout
§ 200.344 Closeout.
Post -Closeout Adjustments and Continuing Responsibilities
§ 200.345 Post -closeout adjustments and continuing responsibilities.
Collection of Amounts Due
§ 200.346 Collection of amounts due.
Subpart E Cost Principles
General Provisions
§ 200.400 Policy guide.
§ 200.401 Application.
Basic Considerations
§ 200.402
Composition of costs.
§ 200.403
Factors affecting allowability of costs.
§ 200.404
Reasonable costs.
§ 200.405
Allocable costs.
§ 200.406
Applicable credits.
§ 200.407
Prior written approval (prior approval).
§ 200.408
Limitation on allowance of costs.
Exhibit L - Page 3 of 7
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
2 C.F.R. Part 200
§ 200.409 Special considerations.
§ 200.410 Collection of unallowable costs.
§ 200.411 Adjustment of previously negotiated indirect cost rates containing unallowable
costs.
Direct and Indirect Costs
§ 200.412 Classification of costs.
§ 200.413 Direct costs.
§ 200.414 Indirect costs.
§ 200.415 Required certifications.
Special Considerations for States, Local Governments and Indian
Tribes
§ 200.416 Cost allocation plans and indirect cost proposals.
§ 200.417 Interagency service.
§ 200.418 Costs incurred by states and local governments.
§ 200.419 Cost accounting standards.
General Provisions for Selected Items of Cost
§ 200.420 Considerations for selected items of cost.
§ 200.421 Advertising and public relations.
§ 200.422 Advisory councils.
§ 200.423 Alcoholic beverages.
§ 200.424 Alumni activities.
§ 200.425 Audit services.
§ 200.426 Bad debts.
§ 200.427 Bonding costs.
§ 200.428 Collections of improper payments.
§ 200.429 Commencement and convocation costs.
§ 200.430 Compensation —personal services.
§ 200.431 Compensation —fringe benefits.
§ 200.432 Conferences.
§ 200.433 Contingency provisions.
§ 200.434 Contributions and donations.
§ 200.435 Defense and prosecution of criminal and civil proceedings, claims, appeals and
patent infringements.
§ 200.436 Depreciation.
§ 200.437 Employee health and welfare costs.
§ 200.438 Entertainment and prizes.
§ 200.439 Equipment and other capital expenditures.
§ 200.440 Exchange rates.
§ 200.441 Fines, penalties, damages and other settlements.
Exhibit L - Page 4 of 7
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
2 C.F.R. Part 200
§ 200.442 Fundraising and investment management costs.
§ 200.443 Gains and losses on the disposition of depreciable assets.
§ 200.444 General costs of government.
§ 200.445 Goods or services for personal use.
§ 200.446 Idle facilities and idle capacity.
§ 200.447 Insurance and indemnification.
§ 200.448 Intellectual property.
§ 200.449 Interest.
§ 200.450 Lobbying.
§ 200.451 Losses on other awards or contracts.
§ 200.452 Maintenance and repair costs.
§ 200.453 Materials and supplies costs, including costs of computing devices.
§ 200.454 Memberships, subscriptions, and professional activity costs.
§ 200.455 Organization costs.
§ 200.456 Participant support costs.
§ 200.457 Plant and security costs.
§ 200.458 Pre -award costs.
§ 200.459 Professional service costs.
§ 200.460 Proposal costs.
§ 200.461 Publication and printing costs.
§ 200.462 Rearrangement and reconversion costs.
§ 200.463 Recruiting costs.
§ 200.464 Relocation costs of employees.
§ 200.465 Rental costs of real property and equipment.
§ 200.466 Scholarships, student aid costs, and tuition remission.
§ 200.467 Selling and marketing costs.
§ 200.468 Specialized service facilities.
§ 200.469 Student activity costs.
§ 200.470 Taxes (including Value Added Tax).
§ 200.471 Telecommunication and video surveillance costs.
§ 200.472 Termination and standard closeout costs.
§ 200.473 Training and education costs.
§ 200.474 Transportation costs.
§ 200.475 Travel costs.
§ 200.476 Trustees.
Subpart F Audit Requirements
Exhibit L - Page 5 of 7
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
2 C.F.R. Part 200
General
§ 200.500 Purpose.
Audits
§ 200.501 Audit requirements.
§ 200.502 Basis for determining Federal awards expended.
§ 200.503 Relation to other audit requirements.
§ 200.504 Frequency of audits.
§ 200.505 Remedies for audit noncompliance.
§ 200.506 Audit costs.
§ 200.507 Program -specific audits.
Auditees
§ 200.508
Auditee responsibilities.
§ 200.509
Auditor selection.
§ 200.510
Financial statements.
§ 200.511
Audit findings follow-up.
§ 200.512
Report submission.
Federal Agencies
§ 200.513
Responsibilities.
Auditors
§ 200.514
Standards and scope of audit.
§ 200.515
Audit reporting.
§ 200.516
Audit findings.
§ 200.517
Audit documentation.
§ 200.518
Major program determination.
§ 200.519
Criteria for Federal program risk.
§ 200.520
Criteria for a low -risk auditee.
Management Decisions
§ 200.521 Management decisions.
Appendix Ito Part 200
Full Text of Notice of Funding Opportunity
Appendix II to Part 200
Contract Provisions for Non -Federal Entity Contracts Under
Federal Awards
Appendix III to Part 200
Indirect (F&A) Costs Identification and Assignment, and Rate
Determination for Institutions of Higher Education (IHEs)
Appendix IV to Part 200
Indirect (F&A) Costs Identification and Assignment, and Rate
Exhibit L - Page 6 of 7
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
2 C.F.R. Part 200
Determination for Nonprofit Organizations
Appendix V to Part 200
State/Local Governmentwide Central Service Cost Allocation
Plans
Appendix VI to Part 200
Public Assistance Cost Allocation Plans
Appendix VII to Part 200
States and Local Government and Indian Tribe Indirect Cost
Proposals
Appendix VIII to Part 200
Nonprofit Organizations Exempted From Subpart E of Part 200
Appendix IX to Part 200
Hospital Cost Principles
Appendix X to Part 200
Data Collection Form
Appendix XI to Part 200
Compliance Supplement
Appendix XII to Part 200
Award Term and Condition for Recipient Integrity and
Performance Matters
Exhibit L - Page 7 of 7
Docusign Envelope ID: A8594729-47B7-82B7-83E1-776C7B83D6DF
Exhibit M
Federal Treasury Provisions
Reserved
Exhibit M- Page 1 of 1