HomeMy WebLinkAbout20092891.tiffRESOLUTION
RE: APPROVE AGREEMENT FOR SNOW REMOVAL ON DEFENSE ACCESS ROADS AND
AUTHORIZE CHAIR TO SIGN
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with an Agreement for Snow Removal on
Defense Access Roads between the County of Weld, State of Colorado, by and through the Board
of County Commissioners of Weld County, on behalf of the Department of Public Works, and the
Colorado Department of Transportation (CDOT), commencing upon full execution, and ending
October 20, 2014, with further terms and conditions being as stated in said agreement, and
WHEREAS, after review, the Board deems it advisable to approve said agreement, a copy
of which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Agreement for Snow Removal on Defense Access Roads between the
County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld
County, on behalf of the Department of Public Works, and the Colorado Department of
Transportation (CDOT) be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to
sign said agreement.
The above and foregoing Resolution was, on motion duly made and seconded, adopted by
the following vote on the 2nd day of November, A.D., 2009.
ATTEST:
Weld County Clerk to th
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Deputy Clerk to the Bo
APPROVED AS TO FORM:
County Attorney
Date of signature // 9'
BOARD OF BOUNTY COMMISSIONERS
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2009-2891
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STATE OF COLORADO
DEPARTMENT OF TRANSPORTATION
Contracts and Market Analysis Branch
4201 East Arkansas Avenue, 4'" Floor
Denver, Colorado 80222
Telephone: (303) 757-9736
Facsimile: (303) 757-9868
October 20, 2009
Curtis Hall
Weld County
PO box 758
Greeley, CO 80632
RE: Project: GAR C030-034, (16873) Snow removal on Defense Access Roads
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Enclosed please find three executory copies of the above referenced contract between Weld County and
the Colorado Department of Transportation.
All three (3) copies must be signed with two appropriate signatures, one the designated authority binding the
contractor to the contract, and the other attesting to the authority of the first. If you have a seal, please affix it
to the signature page of each copy. In addition, please attach a copy of the ordinance or resolution passed
by City's governing board approving the contract.
Please return all three (3) copies to my attention. When the agreements are approved by the proper authorities, a
verified copy will be returned to you. This Contract is not valid until the State Controller, or such assistant as he
may delegate, has signed it.
Should you have any questions or require further information, please do not hesitate to contact me. Your
assistance in expediting this agreement is appreciated.
Sincere
Contracts fficer
Colorado Department of Transportation
4201 E. Arkansas Avenue
Denver, CO 80222
Phone: (303) 757-9351
e-mail: Brian.Hancock@dot.state.co.us
2009-2891
COLORADO
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MEMORANDUM
TO: Clerk to the Board DATE: January 7, 2010
FROM: Francie Collins, Public Works
SUBJECT: Items Returned for Recording: Doc 2009-2891
State of Colorado, Department of Transportation
Snow Removal on Defense Access Roads
Original Item returned for recording:
Attached is one executed, original Contract with the State of Colorado, Department of
Transportation, dated December 29, 2009, for your records. State Project GAR CO30-034
(16873) for Snow removal on Defense Access Roads
pc: Department of Transportation, Missile Site Defense Access Road file
Curtis Hall, Motor Grader Supervisor
M \Francie\ItemForRecording.docx
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COLORADO
November 4, 2009
Brian Hancock
Contracts Officer
Colorado Department of Transportation
4201 E. Arkansas Avenue
Denver Colorado 80222
PUBLIC WORKS DEPARTMENT
1111 H STREET, P.O. BOX 758
GREELEY, COLORADO 80632
WEBSITE: WWW.CO.WELD.CO.US
PHONE (970) 356-4000, EXT. 3750
FAX: (970) 304-6497
RE: Project GAR CO30-034, (16873) Snow removal on Defense Access Roads
(Weld County reference document No: 2009-2891)
Dear Mr. Hancock:
Enclosed please find three executed copies of the above referenced contract between Weld
County and the Colorado Department of Transportation as well as the Resolution approved by
the Board of Weld County Commissioners.
Please send a copy of the signed Agreement to my attention. I will submit the agreement for
County records.
If you have any questions, please contact me at 970-397-1290.
Motorgrader Supervisor
Enclosures
pc: Department of Transportation, Missile Site Defense Access Road file
M:\Grader Division\SnowMaintenanceCDOTCover Ietter.D0C
(FMLAWRK)
PROJECT GAR C030-034, (16873)
REGION 41 (BH)
Rev 7/8/09
Routing # 10 HA4 07359
ID 271001073
STATE OF COLORADO
Department of Transportation
Agreement
with
Weld County
TABLE OF CONTENTS
1. PARTIES 2
2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY 2
3. RECITALS 2
4. DEFINITIONS 2
5. TERM and EARLY TERMINATION. 3
6. SCOPE OF WORK 3
7. OPTION LETTER MODIFICATION 7
8. PAYMENTS 8
9. ACCOUNTING 10
10. REPORTING - NOTIFICATION 10
11. LOCAL AGENCY RECORDS 11
12. CONFIDENTIAL INFORMATION -STATE RECORDS 11
12
14. REPRESENTATIONS AND WARRANTIES 12
15. INSURANCE 13
16. DEFAULT -BREACH 14
17. REMEDIES 14
18. NOTICES and REPRESENTATIVES 16
19. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE 17
20. GOVERNMENTAL IMMUNITY 17
21. STATEWIDE CONTRACT MANAGEMENT SYSTEM 17
22. FEDERAL REQUIREMENTS 18
23. DISADVANTAGED BUSINESS ENTERPRISE (DBE) 18
24. DISPUTES 18
25. GENERAL PROVISIONS 18
26. COLORADO SPECIAL PROVISIONS 21
27. SIGNATURE PAGE 23
28. EXHIBIT A - SCOPE OF WORK 1
29. EXHIBIT B - LOCAL AGENCY RESOLUTION 1
30. EXHIBIT C - FUNDING PROVISIONS 1
31. EXHIBIT D - OPTION LETTER 1
32. EXHIBIT E - LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST 1
33. EXHIBIT F - CERTIFICATION FOR FEDERAL -AID CONTRACTS 1
34. EXHIBIT G - DISADVANTAGED BUSINESS ENTERPRISE 1
35. EXHIBIT H - LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES 1
36. EXHIBIT I - FEDERAL -AID CONTRACT PROVISIONS 1
37. EXHIBIT J - FEDERAL REQUIREMENTS 1
13. CONFLICT OF INTEREST
20Oq.2 3q
1. PARTIES
THIS AGREEMENT is entered into by and between Weld County (hereinafter called the "Local
Agency"), and the STATE OF COLORADO acting by and through the Department of Transportation
(hereinafter called the "State" or "CDOT").
2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY.
This Agreement shall not be effective or enforceable until it is approved and signed by the Colorado
State Controller or their designee (hereinafter called the "Effective Date"). The State shall not be liable
to pay or reimburse the Local Agency for any performance hereunder, including, but not limited to
costs or expenses incurred, or be bound by any provision hereof prior to the Effective Date.
3. RECITALS
A. Authority, Appropriation, And Approval
Authority exists in the law and funds have been budgeted, appropriated and otherwise made
available and a sufficient unencumbered balance thereof remains available for payment and the
required approval, clearance and coordination have been accomplished from and with
appropriate agencies.
i. Federal Authority
Pursuant to Title I, Subtitle A, Section 1108 of the "Transportation Equity Act for the 21st
Century" of 1998 (TEA -21) and/or the "Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users" (SAFETEA-LU) of 2005 and to applicable provisions of Title
23 of the United States Code and implementing regulations at Title 23 of the Code of Federal
Regulations, as may be amended, (collectively referred to hereinafter as the "Federal
Provisions"), certain federal funds have been and are expected to continue to be allocated
for transportation projects requested by the Local Agency and eligible under the Surface
Transportation Improvement Program that has been proposed by the State and approved by
the Federal Highway Administration ("FHWA").
ii. State Authority
Pursuant to CRS §43-1-223 and to applicable portions of the Federal Provisions, the State is
responsible for the general administration and supervision of performance of projects in the
Program, including the administration of federal funds for a Program project performed by a
Local Agency under a contract with the State. This Agreement is executed under the
authority of CRS §§29-1-203, 43-1-110; 43-1-116, 43-2-101(4)(c) and 43-2-14.
B. Consideration
The Parties acknowledge that the mutual promises and covenants contained herein and other
good and valuable consideration are sufficient and adequate to support this Agreement.
C. Purpose
The purpose of this Agreement is to disburse Federal funds to the Local Agency pursuant to
CDOT's Stewardship Agreement with the FHWA.
D. References
All references in this Agreement to sections (whether spelled out or using the § symbol),
subsections, exhibits or other attachments, are references to sections, subsections, exhibits or
other attachments contained herein or incorporated as a part hereof, unless otherwise noted.
4. DEFINITIONS
The following terms as used herein shall be construed and interpreted as follows:
A. Agreement or Contract
"Agreement" or "Contract" means this Agreement, its terms and conditions, attached exhibits,
documents incorporated by reference under the terms of this Agreement, and any future
modifying agreements, exhibits, attachments or references that are incorporated pursuant to
Colroado State Fiscal Rules and Policies.
B. Agreement Funds
Page 2 of 23
"Agreement Funds" means funds payable by the State to Local Agency pursuant to this
Agreement.
C. Budget
"Budget" means the budget for the Work described in Exhibit C.
D. Consultant and Contractor
"Consultant" means a professional engineer or designer hired by Local Agency to design the
Work and "Contractor" means the general construction contractor hired by Local Agency to
construct the Work.
E. Evaluation
"Evaluation" means the process of examining the Local Agency's Work and rating it based on
criteria established in §6 and Exhibits A and E.
F. Exhibits and Other Attachments
The following exhibit(s) are attached hereto and incorporated by reference herein: Exhibit A
(Scope of Work), Exhibit B (Resolution), Exhibit C (Funding Provisions), Exhibit D (Option
Letter), Exhibit E (Checklist), Exhibit F (Certification for Federal -Aid Funds), Exhibit G
(Disadvantaged Business Enterprise), Exhibit H (Local Agency Procedures), Exhibit I (Federal -
Aid Contract Provisions) and Exhibit J (Federal Requirements).
G. Goods
"Goods" means tangible material acquired, produced, or delivered by the Local Agency either
separately or in conjunction with the Services the Local Agency renders hereunder.
H. Oversight
"Oversight" means the term as it is defined in the Stewardship Agreement between CDOT and
the Federal Highway Administration ("FHWA") and as it is defined in the Local Agency Manual.
I. Party or Parties
"Party" means the State or the Local Agency and "Parties" means both the State and the Local
Agency
J. Work Budget
Work Budget means the budget described in Exhibit C.
K. Services
"Services" means the required services to be performed by the Local Agency pursuant to this
Contract.
L. Work
"Work" means the tasks and activities the Local Agency is required to perform to fulfill its
obligations under this Contract and Exhibits A and E, including the performance of the
Services and delivery of the Goods.
M. Work Product
"Work Product" means the tangible or intangible results of the Local Agency's Work, including,
but not limited to, software, research, reports, studies, data, photographs, negatives or other
finished or unfinished documents, drawings, models, surveys, maps, materials, or work product
of any type, including drafts.
5. TERM and EARLY TERMINATION.
The Parties' respective performances under this Agreement shall commence on the Effective Date.
This Agreement shall terminate on October 20, 2014, unless sooner terminated or completed as
demonstrated by final payment and final audit.
6. SCOPE OF WORK
A. Completion
The Local Agency shall complete the Work and other obligations as described herein in Exhibit
A. Work performed prior to the Effective Date or after final acceptance shall not be considered
part of the Work.
B. Goods and Services
Page 3 of 23
The Local Agency shall procure Goods and Services necessary to complete the Work. Such
procurement shall be accomplished using the Contract Funds and shall not increase the
maximum amount payable hereunder by the State.
C. Employees
All persons employed hereunder by the Local Agency, or any Consultants or Contractor shall be
considered the Local Agencys', Consultants' or Contractors' employee(s) for all purposes and
shall not be employees of the State for any purpose.
D. State and Local Agency Commitments
i. Design
If the Work includes preliminary design or final design or design work sheets, or special
provisions and estimates (collectively referred to as the "Plans"), the Local Agency shall
comply with and be responsible for satisfying the following requirements:
a) Perform or provide the Plans to the extent required by the nature of the Work.
b) Prepare final design in accordance with the requirements of the latest edition of the
American Association of State Highway Transportation Officials (AASHTO) manual or
other standard, such as the Uniform Building Code, as approved by the State.
c) Prepare provisions and estimates in accordance with the most current version of the
State's Roadway and Bridge Design Manuals and Standard Specifications for Road and
Bridge Construction or Local Agency specifications if approved by the State.
d) Include details of any required detours in the Plans in order to prevent any interference
of the construction Work and to protect the traveling public.
e) Stamp the Plans produced by a Colorado Registered Professional Engineer.
f) Provide final assembly of Plans and all other necessary documents.
g) Be responsible for the Plans' accuracy and completness.
h) Make no further changes in the Plans following the award of the construction contract to
Contractor unless agreed to in writing by the Parties. The Plans shall be considered final
when approved in writing by CDOT and when final they shall be incorporated herein.
ii. Local Agency Work
a) Local Agency shall comply with the requirements of the Americans With Disabilities Act
(ADA), and applicable federal regulations and standards as contained in the document
"ADA Accessibility Requirements in CDOT Transportation Projects".
b) Local Agency shall afford the State ample opportunity to review the Plans and make any
changes in the Plans that are directed by the State to comply with FHWA requirements.
c) Local Agency may enter into a contract with a Consultant to perform all or any portion of
the Plans and/or of construction administration. Provided, however, if federal -aid funds are
involved in the cost of such Work to be done by such Consultant, such Consultant contract
(and the performance/provision of the Plans under the contract) must comply with all
applicable requirements of 23 C.F.R. Part 172 and with any procedures implementing
those requirements as provided by the State, including those in Exhibit H. If the Local
Agency enters into a contract with a Consultant for the Work:
(1) Local Agency shall submit a certification that procurement of any Consultant
contract complies with the requirements of 23 C.F.R. 172.5(1) prior to entering into
such Consultant contract, subject to the State's approval. If not approved by the
State, the Local Agency shall not enter into such Consultant contract.
(2) Local Agency shall ensure that all changes in the Consultant contract have
prior approval by the State and FHWA and that they are in writing. Immediately
after the Consultant contract has been awarded, one copy of the executed
Consultant contract and any amendments shall be submitted to the State.
(3) Local Agency shall require that all billings under the consultant contract comply
with the State's standardized billing format. Examples of the billing formats are
available from the CDOT Agreements Office.
Page 4 of 23
(4) Local Agency (and any Consultant) shall comply with 23 C.F.R. 172.5(b) and
(d) and use the CDOT procedures described in Exhibit H to administer the
Consultant contract.
(5) Local Agency may expedite any CDOT approval of its procurement process
and/or consultant contract by submitting a letter to CDOT from the Local Agency's
attorney/authorized representative certifying compliance with Exhibit H and 23
C.F.R. 172.5(b)and (d).
(6) Local Agency shall ensure that the Consultant agreement complies with the
requirements of 49 CFR 18.36(i) and contains the following language verbatim:
(a) The design work under this Agreement shall be compatible with the
requirements of the contract between the Local Agency and the State (which is
incorporated herein by this reference) for the design/construction of the project.
The State is an intended third -party beneficiary of this agreement for that
purpose.
(b) Upon advertisement of the project work for construction, the consultant
shall make available services as requested by the State to assist the State in
the evaluation of construction and the resolution of construction problems that
may arise during the construction of the project.
(c) The consultant shall review the Construction Contractor's shop drawings for
conformance with the contract documents and compliance with the provisions
of the State's publication, Standard Specifications for Road and Bridge
Construction, in connection with this work.
d) The State, in its sole discretion, may review construction plans, special provisions and
estimates and may require the Local Agency to make such changes therein as the State
determines necessary to comply with State and FHWA requirements.
iii. Construction
a) If the Work includes construction, the Local Agency shall perform the construction in
accordance with the approved design plans and/or administer the construction in
accordance with the Exhibit E. Such administration shall include Work inspection and
testing; approving sources of materials; performing required plant and shop inspections;
documentation of contract payments, testing and inspection activities; preparing and
approving pay estimates; preparing, approving and securing the funding for contract
modification orders and minor contract revisions; processing Construction Contractor
claims; construction supervision; and meeting the Quality Control requirements of the
FHWA/CDOT Stewardship Agreement, as described in the Local Agency Contract
Administration Checklist.
b) If the Local Agency is performing the Work, the State may, after providing written notice
of the reason for the suspension to the Local Agency, suspend the Work, wholly or in part,
due to the failure of the Local Agency or its Contractor to correct conditions which are
unsafe for workers or for such periods as the State may deem necessary due to unsuitable
weather, or for conditions considered unsuitable for the prosecution of the Work, or for any
other condition or reason deemed by the State to be in the public interest.
c) The Local Agency shall be responsible for the following:
(1) Appointing a qualified professional engineer, licensed in the State of Colorado,
as the Local Agency Project Engineer (LAPE), to perform engineering
administration. The LAPE shall administer the Work in accordance with this
Agreement, the requirements of the construction contract and applicable State
procedures.
(2) For the construction of the Work, advertising the call for bids upon approval by
the State and awarding the construction contract(s) to the low responsible
bidder(s).
(a) All advertising and bid awards, pursuant to this agreement, by the Local
Agency shall comply with applicable requirements of 23 U.S.C. §112 and 23
Page 5 of 23
C.F.R. Parts 633 and 635 and C.R.S. § 24-92-101 et seq. Those requirements
include, without limitation, that the Local Agency and its Contractor shall
incorporate Form 1273 (Exhibit I) in its entirety verbatim into any
subcontract(s) for those services as terms and conditions therefore, as required
by 23 C.F.R. 633.102(e).
(b) The Local Agency may accept or reject the proposal of the apparent low
bidder for Work on which competitive bids have been received. The Local
Agency must accept or reject such bid within three (3) working days after they
are publicly opened.
(c) As part of accepting bid awards, the Local Agency shall provide additional
funds, subject to their availability and appropriation, necessary to complete the
Work if no additional federal -aid funds are available.
(3) The requirements of this §6(D)(iii)(c)(2) also apply to any advertising and
awards made by the State.
(4) If all or part of the Work is to be accomplished by the Local Agency's personnel
(i.e. by force account) rather than by a competitive bidding process, the Local
Agency shall perform such work in accordance with pertinent State specifications
and requirements of 23 C.F.R. 635, Subpart B, Force Account Construction.
(a) Such Work will normally be based upon estimated quantities and firm unit
prices agreed to between the Local Agency, the State and FHWA in advance of
the Work, as provided for in 23 C.R.F. 635.204(c). Such agreed unit prices
shall constitute a commitment as to the value of the Work to be performed.
(b) An alternative to the preceeding subsection is that the Local Agency may
agree to participate in the Work based on actual costs of labor, equipment
rental, materials supplies and supervision necessary to complete the Work.
Where actual costs are used, eligibility of cost items shall be evaluated for
compliance with 48 C.F.R. Part 31.
(c) If the State provides matching funds under this Agreement, rental rates for
publicly owned equipment shall be determined in accordance with the State's
Standard Specifications for Road and Bridge Construction §109.04.
(d) All Work being paid under force account shall have prior approval of the
State and/or FHWA and shall not be initiated until the State has issued a
written notice to proceed.
iv. State's Commitments
a) The State will perform a final project inspection of the Work as a quality
control/assurance activity. When all Work has been satisfactorily completed, the State will
sign the FHWA Form 1212.
b) Notwithstanding any consents or approvals given by the State for the Plans, the State
shall not be liable or responsible in any manner for the structural design, details or
construction of any major structures designed by, or that are the responsibility of, the Local
Agency as identified in the Local Agency Contract Administration Checklist, Exhibit E,
v. ROW and Acquistion/Relocation
a) If the Local Agency purchases a right of way for a State highway, including areas of
influence, the Local Agency shall immediately convey title to such right of way to CDOT
after the Local Agency obtains title.
b) Any acquisition/relocation activities shall comply with all applicable federal and state
statutes and regulations, including but not limited to the Uniform Relocation Assistance and
Real Property Acquisition Policies Act of 1970 as amended and the Uniform Relocation
Assistance and Real Property Acquisition Policies for Federal and Federally Assisted
Programs as amended (49 C.F.R. Part 24), CDOT's Right of Way Manual, and CDOT's
Policy and Procedural Directives.
c) The Parties' respective compliance responsibilities depend on the level of federal
participation; provided however, that the State always retains Oversight responsibilities.
Page 6 of 23
d) The Parties' respective responsibilities under each level in CDOT's Right of Way Manual
(located at http://www.dot.state.co.us/ROW Manual/) and reimbursement for the levels will be
under the following categories:
(1) Right of way acquisition (3111) for federal participation and non -participation;
(2) Relocation activities, if applicable (3109);
(3) Right of way incidentals, if applicable (expenses incidental to
acquisition/relocation of right of way — 3114).
vi. Utilities
If necessary, the Local Agency shall be responsible for obtaining the proper clearance or
approval from any utility company which may become involved in the Work. Prior to the Work
being advertised for bids, the Local Agency shall certify in writing to the State that all such
clearances have been obtained.
vii. Railroads
If the Work involves modification of a railroad company's facilities and such modification will
be accomplished by railroad company, the Local Agency shall make timely application to the
Public Utilities commission requesting its order providing for the installation of the proposed
improvements and not proceed with that part of the Work without compliance. The Local
Agency shall also establish contact with the railroad company involved for the purpose of
complying with applicable provisions of 23 C.F.R. 646, subpart B, concerning federal -aid
projects involving railroad facilities and:
a) Execute an agreement setting out what work is to be accomplished and the location(s)
thereof, and which costs shall be eligible for federal participation.
b) Obtain the railroad's detailed estimate of the cost of the Work.
c) Establish future maintenance responsibilities for the proposed installation.
d) Proscribe future use or dispositions of the proposed improvements in the event of
abandonment or elimination of a grade crossing.
e) Establish future repair and/or replacement responsibilities in the event of accidental
destruction or damage to the installation.
viii. Environmental Obligations
The Local Agency shall perform all Work in accordance with the requirements of the current
federal and state environmental regulations including the National Environmental Policy Act
of 1969 (NEPA) as applicable.
ix. Maintenance Obligations
The Local Agency shall maintain and operate the Work constructed under this Agreement at
its own cost and expense during their useful life, in a manner satisfactory to the State and
FHWA, and the Local Agency shall provide for such maintenance and operations obligations
each year. Such maintenance and operations shall be conducted in accordance with all
applicable statutes, ordinances and regulations pertaining to maintaining such
improvements. The State and FHWA may make periodic inspections to verify that such
improvements are being adequately maintained.
7. OPTION LETTER MODIFICATION
Option Letters may be used to extend Agreement term, change the level of service within the current
term due to unexpected overmatch, add a phase without increasing contract dollars, or increase or
decrease the amount of funding. These options are limited to the specific scenarios listed below. The
Option Letter shall not be deemed valid until signed by the State Controller or an authorized delegate.
Following are the applications for the individual options under the Option Letter form:
A. Option 1- Level of service change within current term due to unexpected overmatch in an
overbid situation only.
In the event the State has contracted all project funding and the Local Agency's construction bid
is higher than expected, this option allows for additional Local Overmatch dollars to be provided
by the Local Agency to be added to the contract. This option is only applicable for Local
Overmatch on an overbid situation and shall not be intended for any other Local Overmatch
Page 7 of 23
funding. The State may unilaterally increase the total dollars of this contract as stipulated by the
executed Option Letter (Exhibit D), which will bring the maximum amount payable under this
contract tothe amount indicated in Exhibit C-1 attached to the executed Option Letter (future
changes to Exhibit C shall be labeled as C-2, C-3, etc, as applicable). Performance of the
services shall continue under the same terms as established in the contract. The State will use
the Financial Statement submitted by the Local Agency for "Concurrence to Advertise" as
evidence of the Local Agency's intent to award and it will also provide the additional amount
required to exercise this option. If the State exercises this option, the contract will be considered
to include this option provision.
B. Option 2 — Option to add overlapping phase without increasing contract dollars.
The State may require the contractor to begin a phase that may include Design, Construction,
Environmental, Utilities, ROW Incidentals or Miscellaneous (this does not apply to
Acquisition/Relocation or Railroads) as detailed in Exhibit A and at the same terms and
conditions stated in the original contract with the contract dollars remaining the same. The State
may exercise this option by providing a fully executed option to the contractor within thirty (30)
days before the initial targeted start date of the phase, in a form substantially equivalent to
Exhibit D. If the State exercises this option, the contract will be considered to include this option
provision.
C. Option 3 - To update funding (increases and/or decreases) with a new Exhibit C.
This option can be used to increase and/or decrease the overall contract dollars (state, federal,
local match, local agency overmatch) to date, by replacing the original funding exhibit (Exhibit
C) in the Original Contract with an updated Exhibit C-1 (subsequent exhibits to Exhibit C-1
shall be labeled C-2, C-3, etc). The State may have a need to update changes to state, federal,
local match and local agency overmatch funds as outlined in Exhibit C-1, which will be attached
to the option form. The State may exercise this option by providing a fully executed option to the
contractor within thirty (30) days after the State has received notice of funding changes, in a
form substantially equivalent to Exhibit D. If the State exercises this option, the contract will be
considered to include this option provision.
8. PAYMENTS
The State shall, in accordance with the provisions of this §8, pay the Local Agency in the amounts
and using the methods set forth below:
A. Maximum Amount
The maximum amount payable is set forth in Exhibit C as determined by the State from
available funds. Payments to the Local Agency are limited to the unpaid encumbered balance of
the Contract set forth in Exhibit C. The Local Agency shall provide its match share of the costs
as evidenced by an appropriate ordinance/resolution or other authority letter which expressly
authorizes the Local Agency the authority to enter into this Agreement and to expend its match
share of the Work. A copy of such ordinance/resolution or authority letter is attached hereto as
Exhibit B.
B. Payment
i. Advance, Interim and Final Payments
Any advance payment allowed under this Contract or in Exhibit C shall comply with State
Fiscal Rules and be made in accordance with the provisions of this Contract or such Exhibit.
The Local Agency shall initiate any payment requests by submitting invoices to the State in
the form and manner set forth in approved by the State.
ii. Interest
The State shall fully pay each invoice within 45 days of receipt thereof if the amount invoiced
represents performance by the Local Agency previously accepted by the State. Uncontested
amounts not paid by the State within 45 days shall bear interest on the unpaid balance
beginning on the 46th day at a rate not to exceed one percent per month until paid in full;
provided, however, that interest shall not accrue on unpaid amounts that are subject to a
good faith dispute. The Local Agency shall invoice the State separately for accrued interest
Page 8 of 23
on delinquent amounts. The billing shall reference the delinquent payment, the number of
days interest to be paid and the interest rate.
iii. Available Funds -Contingency -Termination
The State is prohibited by law from making commitments beyond the term of the State's
current fiscal year. Therefore, the Local Agency's compensation beyond the State's current
Fiscal Year is contingent upon the continuing availability of State appropriations as provided
in the Colorado Special Provisions. The State's performance hereunder is also contingent
upon the continuing availability of federal funds. Payments pursuant to this Contract shall be
made only from available funds encumbered for this Contract and the State's liability for such
payments shall be limited to the amount remaining of such encumbered funds. If State or
federal funds are not appropriated, or otherwise become unavailable to fund this Contract,
the State may terminate this Contract immediately, in whole or in part, without further liability
in accordance with the provisions hereof.
iv. Erroneous Payments
At the State's sole discretion, payments made to the Local Agency in error for any reason,
including, but not limited to overpayments or improper payments, and unexpended or excess
funds received by the Local Agency, may be recovered from the Local Agency by deduction
from subsequent payments under this Contract or other contracts, Agreements or
agreements between the State and the Local Agency or by other appropriate methods and
collected as a debt due to the State. Such funds shall not be paid to any party other than the
State.
C. Use of Funds
Contract Funds shall be used only for eligible costs identified herein.
D. Matching Funds
The Local Agency shall provide matching funds as provided in §8.A. and Exhibit C. The Local
Agency shall have raised the full amount of matching funds prior to the Effective Date and shall
report to the State regarding the status of such funds upon request. The Local Agency's
obligation to pay all or any part of any matching funds, whether direct or contingent, only extend
to funds duly and lawfully appropriated for the purposes of this Agreement by the authorized
representatives of the Local Agency and paid into the Local Agency's treasury. The Local
Agency represents to the State that the amount designated "Local Agency Matching Funds" in
Exhibit C has been legally appropriated for the purpose of this Agreement by its authorized
representatives and paid into its treasury. The Local Agency does not by this Agreement
irrevocably pledge present cash reserves for payments in future fiscal years, and this
Agreement is not intended to create a multiple -fiscal year debt of the Local Agency. The Local
Agency shall not pay or be liable for any claimed interest, late charges, fees, taxes or penalties
of any nature, except as required by the Local Agency's laws or policies.
E. Reimbursement of Local Agency Costs
The State shall reimburse the Local Agency's allowable costs, not exceeding the maximum total
amount described in Exhibit C and §8. The applicable principles described in 49 C.F.R. 18
Subpart C and 49 C.F.R. 18.22 shall govern the State's obligation to reimburse all costs
incurred by the Local Agency and submitted to the State for reimubursement hereunder, and the
Local Agency shall comply with all such principles. The State shall reimburse the Local Agency
for the federal -aid share of properly documented costs related to the Work after review and
approval thereof, subject to the provisions of this Agreement and Exhibit C. However, any costs
incurred by the Local Agency prior to the date of FHWA authorization for the Work and prior to
the Effective Date shall not be reimbursed absent specific FHWA and State Controller approval
thereof. Costs shall be:
i. Reasonable and Necessary
Resonable and necessary to accomplish the Work and for the Goods and Services provided.
ii. Net Cost
Actual net cost to the Local Agency (i.e. the price paid minus any items of value received by
the Local Agency that reduce the cost actually incurred);
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9. ACCOUNTING
The Local Agency shall establish and maintain accounting systems in accordance with generally
accepted accounting standards (a separate set of accounts, or as a separate and integral part of its
current accounting scheme). Such accounting systems shall, at a minimum, provide as follows:
A. Local Agency Performing the Work
If Local Agency is performing the Work, all allowable costs, including any approved services
contributed by the Local Agency or others, shall be documented using payrolls, time records,
invoices, contracts, vouchers, and other applicable records.
B. Local Agency -Checks or Draws
Checks issued or draws made by the Local Agency shall be made or drawn against properly
signed vouchers detailing the purpose thereof. All checks, payrolls, invoices, contracts,
vouchers, orders, and other accounting documents shall be on file in the office of the Local
Agency ,clearly identified, readily accessible, and to the extent feasible, kept separate and apart
from all other Work documents.
C. State -Administrative Services
The State may perform any necessary administrative support services required hereunder. The
Local Agency shall reimburse the State for the costs of any such services from the Budget as
provided for in Exhibit C. If FHWA funding is not available or is withdrawn, or if the Local Agency
terminates this Agreement prior to the Work being approved or completed, then all actual
incurred costs of such services and assistance provided by the State shall be the Local
Agency's sole expense.
D. Local Agency -Invoices
The Local Agency's invoices shall describe in detail the reimbursable costs incurred by the
Local Agency, for which it seeks reimbursement; the dates such costs were incurred; and the
amounts thereof, and shall not be submitted more often than monthly.
E. Invoicing Within 60 Days
The State shall not be liable to reimburse the Local Agency for any costs unless CDOT receives
such invoices within 60 days after the date for which payment is requested, including final
invoicing. Final payment to the Local Agency may be withheld at the discretion of the State until
completion of final audit. Any costs incurred by the Local Agency that are not allowable under
49 C.F.R. 18 shall be reimbursed by the Local Agency, or the State may offset them against any
payments due from the State to the Local Agency.
F. Reimbursement of State Costs
CDOT shall perform Oversight and the Local Agency shall reimburse CDOT for its related costs.
The Local Agency shall pay invoices within 60 days after receipt thereof. If the Local Agency
fails to remit payment within 60 days, at CDOT's request, the State is authorized to withhold an
equal amount from future apportionment due the Local Agency from the Highway Users Tax
Fund and to pay such funds directly to CDOT. Interim funds, shall be payable from the State
Highway Supplementary Fund (400) until CDOT is reimbursed. If the Local Agency fails to make
payment within 60 days, it shall pay interest to the State at a rate of one percent per month on
the delinquent amounts until the billing is paid in full. CDOT's invoices shall describe in detail
the reimbursable costs incurred, the dates incurred; and the amounts thereof, and shall not be
submitted more often than monthly.
10. REPORTING - NOTIFICATION
Reports, Evaluations, and Reviews required under this §10 shall be in accordance with the
procedures of and in such form as prescribed by the State and in accordance with §19, if applicable.
A. Performance, Progress, Personnel, and Funds
The Local Agency shall submit a report to the State upon expiration or sooner termination of this
Agreement, containing an Evaluation and Review of the Local Agency's performance and the
final status of the Local Agency's obligations hereunder.
B. Litigation Reporting
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Within 10 days after being served with any pleading related to this Agreement, in a legal action
filed with a court or administrative agency, the Local Agency shall notify the State of such action
and deliver copies of such pleadings to the State's principal representative as identified herein.
If the State or its principal representative is not then serving, such notice and copies shall be
delivered to the Executive Director of CDOT.
C. Noncompliance
The Local Agency's failure to provide reports and notify the State in a timely manner in
accordance with this §10 may result in the delay of payment of funds and/or termination as
provided under this Agreement.
D. Documents
Upon request by the State, the Local Agency shall provide the State, or its authorized
representative, copies of all documents, including contracts and subcontracts, in its possession
related to the Work.
11. LOCAL AGENCY RECORDS
A. Maintenance
The Local Agency shall make, keep, maintain, and allow inspection and monitoring by the State
of a complete file of all records, documents, communications, notes and other written materials,
electronic media files, and communications, pertaining in any manner to the Work or the
delivery of Services (including, but not limited to the operation of programs) or Goods
hereunder. The Local Agency shall maintain such records until the last to occur of the following:
(i) a period of three years after the date this Agreement is completed or terminated, or (ii) three
years after final payment is made hereunder, whichever is later, or (iii) for such further period as
may be necessary to resolve any pending matters, or (iv) if an audit is occurring, or the Local
Agency has received notice that an audit is pending, then until such audit has been completed
and its findings have been resolved (collectively, the "Record Retention Period").
B. Inspection
The Local Agency shall permit the State, the federal government and any other duly authorized
agent of a governmental agency to audit, inspect, examine, excerpt, copy and/or transcribe the
Local Agency's records related to this Agreement during the Record Retention Period to assure
compliance with the terms hereof or to evaluate the Local Agency's performance hereunder.
The State reserves the right to inspect the Work at all reasonable times and places during the
term of this Agreement, including any extension. If the Work fails to conform to the requirements
of this Agreement, the State may require the Local Agency promptly to bring the Work into
conformity with Agreement requirements, at the Local Agency's sole expense. If the Work
cannot be brought into conformance by re -performance or other corrective measures, the State
may require the Local Agency to take necessary action to ensure that future performance
conforms to Agreement requirements and exercise the remedies available under this
Agreement, at law or in equity in lieu of or in conjunction with such corrective measures.
C. Monitoring
The Local Agency also shall permit the State, the federal government or any other duly
authorized agent of a governmental agency, in their sole discretion, to monitor all activities
conducted by the Local Agency pursuant to the terms of this Agreement using any reasonable
procedure, including, but not limited to: internal evaluation procedures, examination of program
data, special analyses, on -site checking, formal audit examinations, or any other procedures. All
such monitoring shall be performed in a manner that shall not unduly interfere with the Local
Agency's performance hereunder.
D. Final Audit Report
If an audit is performed on the Local Agency's records for any fiscal year covering a portion of
the term of this Agreement, the Local Agency shall submit a copy of the final audit report to the
State or its principal representative at the address specified herein.
12. CONFIDENTIAL INFORMATION -STATE RECORDS
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The Local Agency shall comply with the provisions of this §10 if it becomes privy to confidential
information in connection with its performance hereunder. Confidential information, includes, but is not
necessarily limited to, state records, personnel records, and information concerning individuals.
A. Confidentiality
The Local Agency shall keep all State records and information confidential at all times and to
comply with all laws and regulations concerning confidentiality of information. Any request or
demand by a third party for State records and information in the possession of the Local Agency
shall be immediately forwarded to the State's principal representative.
B. Notification
The Local Agency shall notify its agents, employees and assigns who may come into contact
with State records and confidential information that each is subject to the confidentiality
requirements set forth herein, and shall provide each with a written explanation of such
requirements before they are permitted to access such records and information.
C. Use, Security, and Retention
Confidential information of any kind shall not be distributed or sold to any third party or used by
the Local Agency or its agents in any way, except as authorized by the Agreement and as
approved by the State. The Local Agency shall provide and maintain a secure environment that
ensures confidentiality of all State records and other confidential information wherever located.
Confidential information shall not be retained in any files or otherwise by the Local Agency or its
agents, except as set forth in this Agreement and approved by the State.
D. Disclosure -Liability
Disclosure of State records or other confidential information by the Local Agency for any reason
may be cause for legal action by third parties against the Local Agency, the State or their
respective agents. The Local Agency shall indemnify, save, and hold harmless the State, its
employees and agents, against any and all claims, damages, liability and court awards including
costs, expenses, and attorney fees and related costs, incurred as a result of any act or omission
by the Local Agency, or its employees, agents, or assignees pursuant to this §12.
13. CONFLICT OF INTEREST
The Local Agency shall not engage in any business or personal activities or practices or maintain any
relationships which conflict in any way with the full performance of the Local Agency's obligations
hereunder. The Local Agency acknowledges that with respect to this Agreement, even the
appearance of a conflict of interest is harmful to the State's interests. Absent the State's prior written
approval, the Local Agency shall refrain from any practices, activities or relationships that reasonably
appear to be in conflict with the full performance of the Local Agency's obligations to the State
hereunder. If a conflict or appearance exists, or if the Local Agency is uncertain whether a conflict or
the appearance of a conflict of interest exists, the Local Agency shall submit to the State a disclosure
statement setting forth the relevant details for the State's consideration. Failure to promptly submit a
disclosure statement or to follow the State's direction in regard to the apparent conflict constitutes a
breach of this Agreement.
14. REPRESENTATIONS AND WARRANTIES
The Local Agency makes the following specific representations and warranties, each of which was
relied on by the State in entering into this Agreement.
A. Standard and Manner of Performance
The Local Agency shall perform its obligations hereunder, including in accordance with the
highest professional standard of care, skill and diligence and in the sequence and manner set
forth in this Agreement.
B. Legal Authority — The Local Agency and the Local Agency's Signatory
The Local Agency warrants that it possesses the legal authority to enter into this Agreement and
that it has taken all actions required by its procedures, by-laws, and/or applicable laws to
exercise that authority, and to lawfully authorize its undersigned signatory to execute this
Agreement, or any part thereof, and to bind the Local Agency to its terms. If requested by the
Page 12 of 23
State, the Local Agency shall provide the State with proof of the Local Agency's authority to
enter into this Agreement within 15 days of receiving such request.
C. Licenses, Permits, Etc.
The Local Agency represents and warrants that as of the Effective Date it has, and that at all
times during the term hereof it shall have, at its sole expense, all licenses, certifications,
approvals, insurance, permits, and other authorization required by law to perform its obligations
hereunder. The Local Agency warrants that it shall maintain all necessary licenses,
certifications, approvals, insurance, permits, and other authorizations required to properly
perform this Agreement, without reimbursement by the State or other adjustment in Agreement
Funds. Additionally, all employees and agents of the Local Agency performing Services under
this Agreement shall hold all required licenses or certifications, if any, to perform their
responsibilities. The Local Agency, if a foreign corporation or other foreign entity transacting
business in the State of Colorado, further warrants that it currently has obtained and shall
maintain any applicable certificate of authority to transact business in the State of Colorado and
has designated a registered agent in Colorado to accept service of process. Any revocation,
withdrawal or non -renewal of licenses, certifications, approvals, insurance, permits or any such
similar requirements necessary for the Local Agency to properly perform the terms of this
Agreement shall be deemed to be a material breach by the Local Agency and constitute
grounds for termination of this Agreement.
15. INSURANCE
The Local Agency and its contractors shall obtain and maintain insurance as specified in this section
at all times during the term of this Agreement: All policies evidencing the insurance coverage required
hereunder shall be issued by insurance companies satisfactory to the Local Agency and the State.
A. The Local Agency
i. Public Entities
If the Local Agency is a "public entity" within the meaning of the Colorado Governmental
Immunity Act, CRS §24-10-101, et seq., as amended (the "GIA"), then the Local Agency
shall maintain at all times during the term of this Agreement such liability insurance, by
commercial policy or self-insurance, as is necessary to meet its liabilities under the GIA. The
Local Agency shall show proof of such insurance satisfactory to the State, if requested by the
State. The Local Agency shall require each Agreement with their Consultant and Contractor,
that are providing Goods or Services hereunder, to include the insurance requirements
necessary to meet Consultant or Contractor liabilities under the GIA.
ii. Non -Public Entities
If the Local Agency is not a "public entity" within the meaning of the Governmental Immunity
Act, the Local Agency shall obtain and maintain during the term of this Agreement insurance
coverage and policies meeting the same requirements set forth in §15(B) with respect to
sub -contractors that are not "public entities".
B. Contractors
The Local Agency shall require each contract with Contractors, Subcontractors, or Consultants,
other than those that are public entities, providing Goods or Services in connection with this
Agreement, to include insurance requirements substantially similar to the following:
i. Worker's Compensation
Worker's Compensation Insurance as required by State statute, and Employer's Liability
Insurance covering all of the Local Agency's Contractors, Subcontractors, or Consultant's
employees acting within the course and scope of their employment.
ii. General Liability
Commercial General Liability Insurance written on ISO occurrence form CG 00 01 10/93 or
equivalent, covering premises operations, fire damage, independent contractors, products
and completed operations, blanket Agreementual liability, personal injury, and advertising
liability with minimum limits as follows: (a) $1,000,000 each occurrence; (b) $1,000,000
general aggregate; (c) $1,000,000 products and completed operations aggregate; and (d)
Page 13 of 23
$50,000 any one fire. If any aggregate limit is reduced below $1,000,000 because of claims
made or paid, contractors, subcontractors, and consultants shall immediately obtain
additional insurance to restore the full aggregate limit and furnish to the Local Agency a
certificate or other document satisfactory to the Local Agency showing compliance with this
provision.
iii. Automobile Liability
Automobile Liability Insurance covering any auto (including owned, hired and non -owned
autos) with a minimum limit of $1,000,000 each accident combined single limit.
iv. Additional Insured
The Local Agency and the State shall be named as additional insured on the Commercial
General Liability policies (leases and construction contracts require additional insured
coverage for completed operations on endorsements CG 2010 11/85, CG 2037, or
equivalent).
v. Primacy of Coverage
Coverage required of the Consultants or Contractors shall be primary over any insurance or
self-insurance program carried by the Local Agency or the State.
vi. Cancellation
The above insurance policies shall include provisions preventing cancellation or non -renewal
without at least 45 days prior notice to the Local Agency and the State by certified mail.
vii. Subrogation Waiver
All insurance policies in any way related to this Agreement and secured and maintained by
the Local Agency's Consultants or Contractors as required herein shall include clauses
stating that each carrier shall waive all rights of recovery, under subrogation or otherwise,
against the Local Agency or the State, its agencies, institutions, organizations, officers,
agents, employees, and volunteers.
C. Certificates
The Local Agency and all Contractors, subcontractors, or Consultants shall provide certificates
showing insurance coverage required hereunder to the State within seven business days of the
Effective Date of this Agreement. No later than 15 days prior to the expiration date of any such
coverage, the Local Agency and each contractor, subcontractor, or consultant shall deliver to
the State or the Local Agency certificates of insurance evidencing renewals thereof. In addition,
upon request by the State at any other time during the term of this Agreement or any sub-
contract, the Local Agency and each contractor, subcontractor, or consultant shall, within 10
days of such request, supply to the State evidence satisfactory to the State of compliance with
the provisions of this §15.
16. DEFAULT -BREACH
A. Defined
In addition to any breaches specified in other sections of this Agreement, the failure of either
Party to perform any of its material obligations hereunder in whole or in part or in a timely or
satisfactory manner, constitutes a breach.
B. Notice and Cure Period
In the event of a breach, notice of such shall be given in writing by the aggrieved Party to the
other Party in the manner provided in §16. If such breach is not cured within 30 days of receipt
of written notice, or if a cure cannot be completed within 30 days, or if cure of the breach has
not begun within 30 days and pursued with due diligence, the State may exercise any of the
remedies set forth in §17. Notwithstanding anything to the contrary herein, the State, in its sole
discretion, need not provide advance notice or a cure period and may immediately terminate
this Agreement in whole or in part if reasonably necessary to preserve public safety or to
prevent immediate public crisis..
17. REMEDIES
If the Local Agency is in breach under any provision of this Agreement, the State shall have all of the
remedies listed in this §17 in addition to all other remedies set forth in other sections of this
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Agreement following the notice and cure period set forth in §16(B). The State may exercise any or all
of the remedies available to it, in its sole discretion, concurrently or consecutively.
A. Termination for Cause and/or Breach
If the Local Agency fails to perform any of its obligations hereunder with such diligence as is
required to ensure its completion in accordance with the provisions of this Agreement and in a
timely manner, the State may notify the Local Agency of such non-performance in accordance
with the provisions herein. If the Local Agency thereafter fails to promptly cure such non-
performance within the cure period, the State, at its option, may terminate this entire Agreement
or such part of this Agreement as to which there has been delay or a failure to properly perform.
Exercise by the State of this right shall not be deemed a breach of its obligations hereunder.
The Local Agency shall continue performance of this Agreement to the extent not terminated, if
any.
i. Obligations and Rights
To the extent specified in any termination notice, the Local Agency shall not incur further
obligations or render further performance hereunder past the effective date of such notice,
and shall terminate outstanding orders and sub -Agreements with third parties. However, the
Local Agency shall complete and deliver to the State all Work, Services and Goods not
cancelled by the termination notice and may incur obligations as are necessary to do so
within this Agreement's terms. At the sole discretion of the State, the Local Agency shall
assign to the State all of the Local Agency's right, title, and interest under such terminated
orders or sub -Agreements. Upon termination, the Local Agency shall take timely, reasonable
and necessary action to protect and preserve property in the possession of the Local Agency
in which the State has an interest. All materials owned by the State in the possession of the
Local Agency shall be immediately returned to the State. All Work Product, at the option of
the State, shall be delivered by the Local Agency to the State and shall become the State's
property.
ii. Payments
The State shall reimburse the Local Agency only for accepted performance received up to
the date of termination. If, after termination by the State, it is determined that the Local
Agency was not in default or that the Local Agency's action or inaction was excusable, such
termination shall be treated as a termination in the public interest and the rights and
obligations of the Parties shall be the same as if this Agreement had been terminated in the
public interest, as described herein.
iii. Damages and Witholding
Notwithstanding any other remedial action by the State, the Local Agency also shall remain
liable to the State for any damages sustained by the State by virtue of any breach under this
Agreement by the Local Agency and the State may withhold any payment to the Local
Agency for the purpose of mitigating the State's damages, until such time as the exact
amount of damages due to the State from the Local Agency is determined. The State may
withhold any amount that may be due to the Local Agency as the State deems necessary to
protect the State, including loss as a result of outstanding liens or claims of former lien
holders, or to reimburse the State for the excess costs incurred in procuring similar goods or
services. The Local Agency shall be liable for excess costs incurred by the State in procuring
from third parties replacement Work, Services or substitute Goods as cover.
B. Early Termination in the Public Interest
The State is entering into this Agreement for the purpose of carrying out the public policy of the
State of Colorado, as determined by its Governor, General Assembly, and/or Courts. If this
Agreement ceases to further the public policy of the State, the State, in its sole discretion, may
terminate this Agreement in whole or in part. Exercise by the State of this right shall not
constitute a breach of the State's obligations hereunder. This subsection shall not apply to a
termination of this Agreement by the State for cause or breach by the Local Agency, which shall
be governed by §17(A) or as otherwise specifically provided for herein.
i. Method and Content
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The State shall notify the Local Agency of the termination in accordance with §17, specifying
the effective date of the termination and whether it affects all or a portion of this Agreement.
ii. Obligations and Rights
Upon receipt of a termination notice, the Local Agency shall be subject to and comply with
the same obligations and rights set forth in §17(A)(i).
iii. Payments
If this Agreement is terminated by the State pursuant to this §17(B), the Local Agency shall
be paid an amount which bears the same ratio to the total reimbursement under this
Agreement as the Services satisfactorily performed bear to the total Services covered by this
Agreement, less payments previously made. Additionally, if this Agreement is less than 60%
completed, the State may reimburse the Local Agency for a portion of actual out-of-pocket
expenses (not otherwise reimbursed under this Agreement) incurred by the Local Agency
which are directly attributable to the uncompleted portion of the Local Agency's obligations
hereunder; provided that the sum of any and all reimbursement shall not exceed the
maximum amount payable to the Local Agency hereunder.
C. Remedies Not Involving Termination
The State, its sole discretion, may exercise one or more of the following remedies in addition to
other remedies available to it:
i. Suspend Performance
Suspend the Local Agency's performance with respect to all or any portion of this Agreement
pending necessary corrective action as specified by the State without entitling the Local
Agency to an adjustment in price/cost or performance schedule. The Local Agency shall
promptly cease performance and incurring costs in accordance with the State's directive and
the State shall not be liable for costs incurred by the Local Agency after the suspension of
performance under this provision.
ii. Withold Payment
Withhold payment to the Local Agency until corrections in the Local Agency's performance
are satisfactorily made and completed.
iii. Deny Payment
Deny payment for those obligations not performed, that due to the Local Agency's actions or
inactions, cannot be performed or, if performed, would be of no value to the State; provided,
that any denial of payment shall be reasonably related to the value to the State of the
obligations not performed.
iv. Removal
Demand removal of any of the Local Agency's employees, agents, or contractors whom the
State deems incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable, or
whose continued relation to this Agreement is deemed to be contrary to the public interest or
not in the State's best interest.
v. Intellectual Property
If the Local Agency infringes on a patent, copyright, trademark, trade secret or other
intellectual property right while performing its obligations under this Agreement, the Local
Agency shall, at the State's option (a) obtain for the State or the Local Agency the right to
use such products and services; (b) replace any Goods, Services, or other product involved
with non -infringing products or modify them so that they become non -infringing; or, (c) if
neither of the forgegoing alternatives are reasonably available, remove any infringing Goods,
Services, or products and refund the price paid therefore to the State.
18. NOTICES and REPRESENTATIVES
Each individual identified below is the principal representative of the designating Party. All notices
required to be given hereunder shall be hand delivered with receipt required or sent by certified or
registered mail to such Party's principal representative at the address set forth below. In addition to,
but not in lieu of a hard -copy notice, notice also may be sent by e-mail to the e-mail addresses, if any,
set forth below. Either Party may from time to time designate by written notice substitute addresses or
Page 16 of 23
persons to whom such notices shall be sent. Unless otherwise provided herein, all notices shall be
effective upon receipt.
A. State:
Tim Tuttle
CDOT Region 4
1420 2"d Street
Greeley, CO 80631
(970)350-2211
B. Local Agency:
Curtis Hall
Weld County
P.O. Box 758
Greeley, CO 80632
(970)304-6495
19. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE
Any software, research, reports, studies, data, photographs, negatives or other documents, drawings,
models, materials, or work product of any type, including drafts, prepared by the Local Agency in the
performance of its obligations under this Agreement shall be the exclusive property of the State and,
all Work Product shall be delivered to the State by the Local Agency upon completion or termination
hereof. The State's exclusive rights in such Work Product shall include, but not be limited to, the right
to copy, publish, display, transfer, and prepare derivative works. The Local Agency shall not use,
willingly allow, cause or permit such Work Product to be used for any purpose other than the
performance of the Local Agencys's obligations hereunder without the prior written consent of the
State.
20. GOVERNMENTAL IMMUNITY
Notwithstanding any other provision to the contrary, nothing herein shall constitute a waiver, express
or implied, of any of the immunities, rights, benefits, protection, or other provisions of the Colorado
Governmental Immunity Act, CRS §24-10-101, et seq., as amended. Liability for claims for injuries to
persons or property arising from the negligence of the State of Colorado, its departments, institutions,
agencies, boards, officials, and employees is controlled and limited by the provisions of the
Governmental Immunity Act and the risk management statutes, CRS §24-30-1501, et seq., as
amended.
21. STATEWIDE CONTRACT MANAGEMENT SYSTEM
If the maximum amount payable to the Local Agency under this Agreement is $100,000 or greater,
either on the Effective Date or at anytime thereafter, this §21 applies.
The Local Agency agrees to be governed, and to abide, by the provisions of CRS §24-102-205, §24-
102-206, §24-103-601, §24-103.5-101 and §24-105-102 concerning the monitoring of vendor
performance on state agreements/contracts and inclusion of agreement/contract performance
information in a statewide contract management system.
The Local Agency's performance shall be subject to Evaluation and Review in accordance with the
terms and conditions of this Agreement, State law, including CRS §24-103.5-101, and State Fiscal
Rules, Policies and Guidance. Evaluation and Review of the Local Agency's performance shall be
part of the normal Agreement administration process and the Local Agency's performance will be
systematically recorded in the statewide Agreement Management System. Areas of Evaluation and
Review shall include, but shall not be limited to quality, cost and timeliness. Collection of information
relevant to the performance of the Local Agency's obligations under this Agreement shall be
determined by the specific requirements of such obligations and shall include factors tailored to match
the requirements of the Local Agency's obligations. Such performance information shall be entered
into the statewide Contract Management System at intervals established herein and a final
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the requirements of the Local Agency's obligations. Such performance information shall be entered
into the statewide Contract Management System at intervals established herein and a final
Evaluation, Review and Rating shall be rendered within 30 days of the end of the Agreement term.
The Local Agency shall be notified following each performance Evaluation and Review, and shall
address or correct any identified problem in a timely manner and maintain work progress.
Should the final performance Evaluation and Review determine that the Local Agency demonstrated a
gross failure to meet the performance measures established hereunder, the Executive Director of the
Colorado Department of Personnel and Administration (Executive Director), upon request by CDOT,
and showing of good cause, may debar the Local Agency and prohibit the Local Agency from bidding
on future Agreements. The Local Agency may contest the final Evaluation, Review and Rating by: (a)
filing rebuttal statements, which may result in either removal or correction of the evaluation (CRS §24-
105-102(6)), or (b) under CRS §24-105-102(6), exercising the debarment protest and appeal rights
provided in CRS §§24-109-106, 107, 201 or 202, which may result in the reversal of the debarment
and reinstatement of the Local Agency, by the Executive Director, upon showing of good cause.
22. FEDERAL REQUIREMENTS
The Local Agency and/or their contractors, subcontractors, and consultants shall at all times during
the execution of this Agreement strictly adhere to, and comply with, all applicable federal and state
laws, and their implementing regulations, as they currently exist and may hereafter be amended. A
listing of certain federal and state laws that may be applicable are described in Exhibit J.
23. DISADVANTAGED BUSINESS ENTERPRISE (DBE)
The Local Agency will comply with all requirements of Exhibit G and the Local Agency Contract
Administration Checklist regarding DBE requirements for the Work, except that if the Local Agency
desires to use its own DBE program to implement and administer the DBE provisions of 49 C.F.R.
Part 26 under this Agreement, it must submit a copy of its program's requirements to the State for
review and approval before the execution of this Agreement. If the Local Agency uses any State -
approved DBE program for this Agreement, the Local Agency shall be solely responsible to defend
that DBE program and its use of that program against all legal and other challenges or complaints, at
its sole cost and expense. Such responsibility includes, without limitation, determinations concerning
DBE eligibility requirements and certification, adequate legal and factual bases for DBE goals and
good faith efforts. State approval (if provided) of the Local Agency's DBE program does not waive or
modify the sole responsibility of the Local Agency for use of its program.
24. DISPUTES
Except as otherwise provided in this Agreement, any dispute concerning a question of fact arising
under this Agreement which is not disposed of by agreement, shall be decided by the Chief Engineer
of the Department of Transportation. The decision of the Chief Engineer will be final and conclusive
unless, within 30 calendar days after the date of receipt of a copy of such written decision, the Local
Agency mails or otherwise furnishes to the State a written appeal addressed to the Executive Director
of CDOT. In connection with any appeal proceeding under this clause, the Local Agency shall be
afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final
decision of a dispute hereunder, the Local Agency shall proceed diligently with the performance of this
Agreement in accordance with the Chief Engineer's decision. The decision of the Executive Director
or his duly authorized representative for the determination of such appeals shall be final and
conclusive and serve as final agency action. This dispute clause does not preclude consideration of
questions of law in connection with decisions provided for herein. Nothing in this Agreement, however,
shall be construed as making final the decision of any administrative official, representative, or board
on a question of law.
25. GENERAL PROVISIONS
A. Assignment
The Local Agency's rights and obligations hereunder are personal and may not be transferred,
assigned or subcontracted without the prior, written consent of the State. Any attempt at
assignment, transfer, subcontracting without such consent shall be void. All assignments and
Page 18 of 23
subcontracts approved by the Local Agency or the State are subject to all of the provisions
hereof. The Local Agency shall be solely responsible for all aspects of subcontracting
arrangements and performance.
B. Binding Effect
Except as otherwise provided in §25(A), all provisions herein contained, including the benefits
and burdens, shall extend to and be binding upon the Parties' respective heirs, legal
representatives, successors, and assigns.
C. Captions
The captions and headings in this Agreement are for convenience of reference only, and shall
not be used to interpret, define, or limit its provisions.
D. Counterparts
This Agreement may be executed in multiple identical original counterparts, all of which shall
constitute one agreement.
E. Entire Understanding
This Agreement represents the complete integration of all understandings between the Parties
and all prior representations and understandings, oral or written, are merged herein. Prior or
contemporaneous addition, deletion, or other amendment hereto shall not have any force or
affect whatsoever, unless embodied herein.
F. Indemnification - General
If Local Agency is not a "public entity" within the meaning of the Colorado Governmental
Immunity Act, CRS §24-10-101, et seq., the Local Agency shall indemnify, save, and hold
harmless the State, its employees and agents, against any and all claims, damages, liability and
court awards including costs, expenses, and attorney fees and related costs, incurred as a
result of any act or omission by the Local Agency, or its employees, agents, subcontractors or
assignees pursuant to the terms of this Agreement. This clause is not applicable to a Local
Agency that is a "public entity" within the meaning of the Colorado Governmental Immunity Act,
CRS §24-10-101, et seq.
G. Jurisdction and Venue
All suits, actions, or proceedings related to this Agreement shall be held in the State of Colorado
and exclusive venue shall be in the City and County of Denver.
H. Limitations of Liability
Any and all limitations of liability and/or damages in favor of the Local Agency contained in any
document attached to and/or incorporated by reference into this Agreement, whether referred to
as an exhibit, attachment, schedule, or any other name, are void and of no effect. This includes,
but is not necessarily limited to, limitations on (i) the types of liabilities, (ii) the types of
damages, (iii) the amount of damages, and (iv) the source of payment for damages.
I. Modification
i. By the Parties
Except as specifically provided in this Agreement, modifications of this Agreement shall not
be effective unless agreed to in writing by both parties in an amendment to this Agreement,
properly executed and approved in accordance with applicable Colorado State law, State
Fiscal Rules, and Office of the State Controller Policies, including, but not limited to, the
policy entitled MODIFICATIONS OF AGREEMENTS - TOOLS AND FORMS.
ii. By Operation of Law
This Agreement is subject to such modifications as may be required by changes in Federal
or Colorado State law, or their implementing regulations. Any such required modification
automatically shall be incorporated into and be part of this Agreement on the effective date of
such change, as if fully set forth herein.
J. Order of Precedence
The provisions of this Agreement shall govern the relationship of the State and the Local
Agency. In the event of conflicts or inconsistencies between this Agreement and its exhibits and
Page 19 of 23
attachments, such conflicts or inconsistencies shall be resolved by reference to the documents
in the following order of priority:
i. Colorado Special Provisions,
H. The provisions of the main body of this Agreement,
iii. Exhibit A (Scope of Work),
iv. Exhibit B (Local Agency Resolution),
v. Exhibit C (Funding Provisions),
vi. Exhibit D (Option Letter),
vii. Exhibit E (Local Agency Contract Administration Checklist),
viii. Other exhibits in descending order of their attachment.
K. Severability
Provided this Agreement can be executed and performance of the obligations of the Parties
accomplished within its intent, the provisions hereof are severable and any provision that is
declared invalid or becomes inoperable for any reason shall not affect the validity of any other
provision hereof.
L. Survival of Certain Agreement Terms
Notwithstanding anything herein to the contrary, provisions of this Agreement requiring
continued performance, compliance, or effect after termination hereof, shall survive such
termination and shall be enforceable by the State if the Local Agency fails to perform or comply
as required.
M. Taxes
The State is exempt from all federal excise taxes under IRC Chapter 32 (No. 84-730123K) and
from all State and local government sales and use taxes under CRS §§39-26-101 and 201 et
seq. Such exemptions apply when materials are purchased or services rendered to benefit the
State; provided however, that certain political subdivisions (e.g., City of Denver) may require
payment of sales or use taxes even though the product or service is provided to the State. The
Local Agency shall be solely liable for paying such taxes as the State is prohibited from paying
for or reimbursing the Local Agency for them.
N. Third Party Beneficiaries
Enforcement of this Agreement and all rights and obligations hereunder are reserved solely to
the Parties, and not to any third party. Any services or benefits which third parties receive as a
result of this Agreement are incidental to the Agreement, and do not create any rights for such
third parties.
O. Waiver
Waiver of any breach of a term, provision, or requirement of this Agreement, or any right or
remedy hereunder, whether explicitly or by lack of enforcement, shall not be construed or
deemed as a waiver of any subsequent breach of such term, provision or requirement, or of any
other term, provision, or requirement.
THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK
Page 20 of 23
26. COLORADO SPECIAL PROVISIONS
The Special Provisions apply to all Agreements except where noted in italics.
1. CONTROLLER'S APPROVAL. CRS §24-30-202 (1).
This Agreement shall not be deemed valid until it has been approved by the Colorado State Controller or
designee.
2. FUND AVAILABILITY. CRS §24-30-202(5.5).
Financial obligations of the State payable after the current fiscal year are contingent upon funds for that
purpose being appropriated, budgeted, and otherwise made available.
3. GOVERNMENTAL IMMUNITY.
No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied,
of any of the immunities, rights, benefits, protections, or other provisions, of the Colorado Governmental
Immunity Act, CRS §24-10-101 et seq., or the Federal Tort Claims Act, 28 U.S.C. §§1346(b) and 2671 et
seq., as applicable now or hereafter amended.
4. INDEPENDENT CONTRACTOR
The Local Agency shall perform its duties hereunder as an independent contractor and not as an
employee. Neither The Local Agency nor any agent or employee of The Local Agency shall be deemed to
be an agent or employee of the State. The Local Agency and its employees and agents are not entitled to
unemployment insurance or workers compensation benefits through the State and the State shall not pay
for or otherwise provide such coverage for The Local Agency or any of its agents or employees.
Unemployment insurance benefits shall be available to The Local Agency and its employees and agents
only if such coverage is made available by The Local Agency or a third party. The Local Agency shall pay
when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to
this Agreement. The Local Agency shall not have authorization, express or implied, to bind the State to
any Agreement, liability or understanding, except as expressly set forth herein. The Local Agency shall
(a) provide and keep in force workers' compensation and unemployment compensation insurance in the
amounts required by law, (b) provide proof thereof when requested by the State, and (c) be solely
responsible for its acts and those of its employees and agents.
5. COMPLIANCE WITH LAW.
The Local Agency shall strictly comply with all applicable federal and State laws, rules, and regulations in
effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair
employment practices.
6. CHOICE OF LAW.
Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation,
execution, and enforcement of this Agreement. Any provision included or incorporated herein by
reference which conflicts with said laws, rules, and regulations shall be null and void. Any provision
incorporated herein by reference which purports to negate this or any other Special Provision in whole or
in part shall not be valid or enforceable or available in any action at law, whether by way of complaint,
defense, or otherwise. Any provision rendered null and void by the operation of this provision shall not
invalidate the remainder of this Agreement, to the extent capable of execution.
7. BINDING ARBITRATION PROHIBITED.
The State of Colorado does not agree to binding arbitration by any extra -judicial body or person. Any
provision to the contrary in this contact or incorporated herein by reference shall be null and void.
8. SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00.
State or other public funds payable under this Agreement shall not be used for the acquisition, operation,
or maintenance of computer software in violation of federal copyright laws or applicable licensing
restrictions. The Local Agency hereby certifies and warrants that, during the term of this Agreement and
any extensions, The Local Agency has and shall maintain in place appropriate systems and controls to
prevent such improper use of public funds. If the State determines that The Local Agency is in violation of
this provision, the State may exercise any remedy available at law or in equity or under this Agreement,
including, without limitation, immediate termination of this Agreement and any remedy consistent with
federal copyright laws or applicable licensing restrictions.
9. EMPLOYEE FINANCIAL INTEREST. CRS §§24-18-201 and 24-50-507.
The signatories aver that to their knowledge, no employee of the State has any personal or beneficial
interest whatsoever in the service or property described in this Agreement. The Local Agency has no
interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree
Page 21 of 23
with the performance of The Local Agency's services and The Local Agency shall not employ any person
having such known interests.
10. VENDOR OFFSET. CRS §§24-30-202 (1) and 24-30-202.4.
[Not Applicable to intergovernmental agreements] Subject to CRS §24-30-202.4 (3.5), the State
Controller may withhold payment under the State's vendor offset intercept system for debts owed to State
agencies for: (a) unpaid child support debts or child support arrearages; (b) unpaid balances of tax,
accrued interest, or other charges specified in CRS §39-21-101, et seq.; (c) unpaid loans due to the
Student Loan Division of the Department of Higher Education; (d) amounts required to be paid to the
Unemployment Compensation Fund; and (e) other unpaid debts owing to the State as a result of final
agency determination or judicial action.
11. PUBLIC CONTRACTS FOR SERVICES. CRS §8-17.5-101.
[Not Applicable to Agreements relating to the offer, issuance, or sale of securities, investment advisory
services or fund management services, sponsored projects, intergovernmental Agreements, or
information technology services or products and services] The Local Agency certifies, warrants, and
agrees that it does not knowingly employ or contract with an illegal alien who shall perform work under
this Agreement and shall confirm the employment eligibility of all employees who are newly hired for
employment in the United States to perform work under this Agreement, through participation in the E -
Verify Program or the State program established pursuant to CRS §8-17.5-102(5)(c), The Local Agency
shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or enter
into a contract with a subcontractor that fails to certify to The Local Agency that the subcontractor shall
not knowingly employ or contract with an illegal alien to perform work under this Agreement. The Local
Agency (a) shall not use E -Verify Program or State program procedures to undertake pre -employment
screening of job applicants while this Agreement is being performed, (b) shall notify the subcontractor and
the contracting State agency within three days if The Local Agency has actual knowledge that a
subcontractor is employing or contracting with an illegal alien for work under this Agreement, (c) shall
terminate the subcontract if a subcontractor does not stop employing or contracting with the illegal alien
within three days of receiving the notice, and (d) shall comply with reasonable requests made in the
course of an investigation, undertaken pursuant to CRS §8-17.5-102(5), by the Colorado Department of
Labor and Employment. If The Local Agency participates in the State program, The Local Agency shall
deliver to the contracting State agency, Institution of Higher Education or political subdivision, a written,
notarized affirmation, affirming that The Local Agency has examined the legal work status of such
employee, and shall comply with all of the other requirements of the State program. If The Local Agency
fails to comply with any requirement of this provision or CRS §8-17.5-101 et seq., the contracting State
agency, institution of higher education or political subdivision may terminate this Agreement for breach
and, if so terminated, The Local Agency shall be liable for damages.
12. PUBLIC CONTRACTS WITH NATURAL PERSONS. CRS §24-76.5-101.
The Local Agency, if a natural person eighteen (18) years of age or older, hereby swears and affirms
under penalty of perjury that he or she (a) is a citizen or otherwise lawfully present in the United States
pursuant to federal law, (b) shall comply with the provisions of CRS §24-76.5-101 et seq., and (c) has
produced one form of identification required by CRS §24-76.5-103 prior to the effective date of this
Agreement.
SPs Effective 1/1/09
THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK
Page 22 of 23
27. SIGNATURE PAGE
Agreement Routing Number
THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT
Persons signing for The Local Agency hereby swear and affirm that they are authorized to act on The Local
Agency's behalf and acknowledge that the State is relying on their representations to that effect.
THE LOCAL AGENCY
Weld County
By: William F. Garcia
Title: Chair,8pard of Weld County Commissioners
*Signature
Date: 11/02/2009
STATE OF COLORADO
Bill Ritter, Jr. GOVERNOR
Colorado Department of Transportation
O1
_._. Russell George, Executive Director
I I /-4
By: Pam Hutton — CDOT Chief Engineer
Date: ' `2 1 — (
2The Lpcl Aggncy ignature if Nee. --d
4/4
/ Ill `rd
By: /wrseutJ iY"v S
Title: Clerk to the Board
By:
ihift
Date:
,Deputy Cle
'Signature
11/02/2009
LEGAL REVIEW
John W. Suthers, Attorney General
etti
ignature - Assistant Attorney GenQrial
Date:
3 1
ALL AGREEMENTS REQUIRE APPROVAL BY THE STATE CONTROLLER
CRS §24-30-202 requires the State Controller to approve all State Agreements. This Agreement is not valid until
signed and dated below by the State Controller or delegate. The Local Agency is not authorized to begin
performance until such time. If The Local Agency begins performing prior thereto, the State of Colorado is not
obligated to pay The Local Agency for such performance or for any goods and/or services provided hereunder.
By:
STATE CONTROLLER
David J. I)A^cpermott, CPA
Colo Department of Transporation
Date: /O2 2 � - Z
Page 23 of 23
«'fz' 5' -,21ri'/
28. EXHIBIT A - SCOPE OF WORK
Whereas, pursuant to the provisions of Section 210, of Title 23, United States Code, and authority
delegated by the Secretary of Transportation, FHWA is authorized to provide for the maintenance of
defense access roads;
Whereas, the Military Traffic Management Command (MTMC) has certified that it is important to the
national defense to provide for extraordinary maintenance and extraordinary snow removal under the
conditions herein set forth on the defense access roads hereinafter described, and has requested that
FHWA take appropriate action to provide for such extraordinary maintenance and extraordinary snow
removal (EM/ESR) out of funds transferred to FHWA by the U.S. Department of the Air Force (USAF);
Whereas, the County is willing to cooperate in the interest of national defense by performing the
extraordinary snow removal (ESR) and extraordinary maintenance (EM) work herein specified, under
conditions what will result in neither a loss nor a gain to the county.
NOW THEREFORE, the parties hereby agree as follows:
1. GENERAL:
As used herein, unless the contract indicates otherwise:
A. "Defense Access Roads" (DAR) are County -owned roads located in Weld County, Colorado that
service missile sites.
B. "Extraordinary Snow Removal" (ESR) is snow removal over and above that ordinarily performed
by the County for the class of roads involved. ESR allows for snow removal at facility driveway
entrances and defense access roads leading up to the first security gate of the facility.
Snow removal on County roads is normally the responsibility of local county agencies and under
normal circumstances the USAF has the flexibility to reschedule its activities allowing these agencies
to provide snow removal service according to their regular schedules and priorities. In some
instances, the USAF may need a road open prior to the County's scheduled snow removal and in
other instances the County may not normally plow roads where sites are located if other means of
access is available to local inhabitants. Therefore, the ESR program was established.
The ESR program is essential to National Defense Readiness by providing site access during
equipment and personnel emergencies. The ESR program only applies to for roads not in the State
highway system. During extreme weather, the USAF personnel will evaluate options available
including rescheduling and using special vehicles prior to requesting ESR.
C. "Extraordinary Maintenance" (EM) is repair work that is over and above the normal maintenance
required to accommodate County traffic when determined necessary and requested by the USAF or
FHWA on behalf of the USAF. EM will only be utilized on:
(i) Primary Transporter / Erector routes when a Priority 11 or 22 exist; and
(ii) Only when an alternate route to the missile Site (MS) is unavailable.
1 USAF Priority 1: a) Maintenance required to repair equipment essential for safe operation of the weapon
system; b) Maintenance after an incident or malfunction to prevent further damage to the weapon system, avoid
injury to personnel, or render the weapon system safe; c) To enable security forces to clear and re -secure /
guard LFs displaying both outer and inner zone alarms that will not reset. 05
Priority 2: a) Maintenance required to place LFs or MAFs on alert or return to alert; b)Maintenance required to retain or
return communication system off -alert or impaired sorties to alert or unimpaired status; c) Maintenance required to retain or
return sorties to EWO status. Reference: Space Command Regulations I-23-10
Page 1 of 4
An authorized agent of the USAF, or the FHWA on behalf of the USAF, will notify the County to repair
the identified DAR defects. As dictated by existing roadway conditions, County priorities, manpower,
availability of resources, statutory limitations, and the priority of the Air Force Emergency, the County
will complete the EM work as rapidly as practicable or notify the USAF otherwise.
The repairs will be made to the extent needed to permit USAF vehicle access to the MS, as
determined in Priority 1 or 2. EM repairs may include, but are not limited to, damaged surfaces, soft
spots, culvert or bridge shoring, radius enhancements, etc. EM is not intended, nor will it be used for,
major repair construction.
D. "Force Account" means the direct performance of county highway construction work by the
County by use of labor, equipment, materials, and supplies furnished by them and used under their
direct control. Force account can include work contracted by the County with private parties as
agreed in the SOW. The County shall comply with Title VI of the Civil Rights Act of 1964, as
amended by 49 CFR 21.
E. Setup Fixed Costs are costs the County incurs for equipment setup and mobilization and routine
snow removal from County roads and missile site access roads. This is independent of activities
reimbursed under the provisions set forth in paragraph "2D".
2. TERMS OF AGREEMENT
A. When EM/ESR on a DAR is necessary, an authorized agent of the USAF will formally request the
service usually during normal working hours. However, weekend, evening, and late night requests
may sometimes be necessary.
For such situations, the County will provide a central dispatch number and / or point of contact for
after-hours calls. Should an after-hours call be received, the County may elect to perform the
requested EM/ESR during non -duty hours. The overtime expense for non -duty hours incurred by the
County shall be acknowledged by the USAF as necessary to the performance of the immediate need
for the success of the mission.
The USAF will furnish a list of authorized agents annually to the County. The USAF will notify the
County of any changes to the list of authorized agents. The County will also be supplied with
telephone numbers for the Air Force Base Administration and the representative FHWA. See
attachment "A."
B. The County will respond to all ESR requests by scheduling snow removal operations within
twenty-four hours, with the intent of performing the snow removal within 24 hours after notification.
Recognition by the parties to this agreement, limitations due to weather conditions, County priorities,
manpower, equipment availability, resources, and priority level of the Air Force Emergency, the
County will respond in a timely manner and clear the designated defense access roads (or notify the
USAF otherwise.) As soon as possible after the DAR has been cleared, the County will notify the
USAF snow desk by telephone at 307-773-2049 or 307-773-3948.
C. A request for EM services issued by the authorized agent of the USAF shall include a "scope of
work" (SOW), a written description of the repair to be accomplished and a dollar limit "not to exceed".
Both parties acknowledging the level of effort necessary to fulfill the request prior to mobilization shall
pen initials on the SOW. The parties can readily make amendments to the SOW upon agreement.
The County will record all necessary information and track services performed to accomplish the
SOW as a 'force account' effort. The term force account shall mean the direct performance of county
highway construction work by the County by use of labor, equipment, materials, and supplies
Page 2 of 4
furnished by them and used under their direct control. Force account can include work contracted by
the County with private parties as agreed in the SOW. The County shall comply with Title VI of the
Civil Rights Act of 1964, as amended by 49 CFR 21.
D. For ESR and EM done by the County at the request of the USAF or FHWA on behalf of the USAF,
the County will be reimbursed for the force account bill and associated documentation.
Documentation shall include justification of rates, all costs including, but not limited to, labor (including
equipment operator), supervision, equipment, material and delivery, labor additives, overhead,
depreciation, fuel, subcontracts, rentals, operation & maintenance, and insurance.
For verification of completed work, the County shall submit a copy of the EM SOW, any amendments,
force account bill, and supporting documentation to:
(i) FHWA; and
(ii) Mr. Rock Hussey, USAF Missile Engineering Flight, 300 Missile Drive, Suite 800, Building
240, F.E. Warren Air Force Base, Wyoming, 82005.
Within 20 working days, FHWA will review and determine if the billing documentation is acceptable for
further payment processing or FHWA will notify the County in writing of the deficiencies necessary to
complete the bill and resubmit for acceptance.
E. ANNUAL REIMBURSEMENT FOR SETUP FIXED COSTS. This agreement recognizes fixed
costs incurred by the County for equipment setup and mobilization independent of activities
reimbursed under the provisions set forth in paragraph "2D". The County may request reimbursement
for the amount identified in the provision below._The agreed amount below was negotiated based on
historical data. The base year is established for Federal FY 2009 and the respective historical
payment amount.
Weld County - $25,000.00
For the term of this agreement, the County will be reimbursed at the rate of the base year amount
increased by simple interest rate at 3.50% per year. The table below shall be the amount reimbursed
upon receipt of the proper billing documentation.
Weld
County
FY 2009
$25,000.00
FY 2010
$25,875.00
FY 2011
$26,780.63
FY 2012
$27,717.95
FY 2013
$28,688.08
F. COMPLIANCE WITH ANTI -DEFICIENCY ACT. Any requirement for the payment or obligation of
funds by the FHWA pursuant to this Agreement shall be subject to the availability of appropriated
funds and the inclusion of such funds into the Department of the Air Force's annual "program work
plan". No provision herein shall be interpreted to require any obligation or payment of funds in
violation of the Anti -Deficiency Act 31 U.S.C. § 1341. In cases where payment or obligation of funds
would constitute a violation of the Anti -Deficiency Act, the dates established requiring the payment or
obligation of such funds by the FHWA shall be appropriately adjusted. It is the expectation of the
parties to this Agreement that all obligations of the FHWA arising under this Agreement will be fully
Page 3 of 4
funded. The FHWA agrees to seek sufficient funding through the United States Department of
Defense budgetary process to fulfill its obligation under this Agreement.
G. OUTSIDE EQUIPMENT RENTAL. When considered necessary, the County may rent equipment
from outside parties to perform the work provided for herein, with advance approval from FHWA. The
County will be reimbursed on the basis of their actual cost for the operation and rental of this
equipment. Including expenses incurred in obtaining the equipment and stand-by charges. To be
reimbursed, the County will need to submit detailed records of the rental agreements, billings, man-
hours, and expenses in obtaining and utilizing the equipment. The County will be reimbursed on the
basis of their actual cost for the operation and rental of this equipment including expenses incurred in
obtaining the equipment and stand-by charges. The County shall not enter into any contracts for any
work contemplated under this agreement without prior written authorization of the FHWA.
H. Detailed records of the costs associated with ESR and EM claims shall be retained on file by the
County for a minimum of three years after the date of final payment for each contract period. The
records shall be made available for review or audit by the FHWA upon request. The records shall
include the name and number of hours worked for each worker and whether it was straight time or
overtime and the quantity and cost of all materials used, including the basis of cost of the materials.
THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK
Page 4 of 4
29. EXHIBIT B - LOCAL AGENCY RESOLUTION
LOCAL AGENCY
ORDINANCE
or
RESOLUTION
Page 1 of 1
RESOLUTION
RE: APPROVE AGREEMENT FOR SNOW REMOVAL ON DEFENSE ACCESS ROADS AND
AUTHORIZE CHAIR TO SIGN
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with an Agreement for Snow Removal on
Defense Access Roads between the County of Weld, State of Colorado, by and through the Board
of County Commissioners of Weld County, on behalf of the Department of Public Works, and the
Colorado Department of Transportation (COOT), commencing upon full execution, and ending
October 20, 2014, with further terms and conditions being as stated in said agreement, and
WHEREAS, after review, the Board deems it advisable to approve said agreement, a copy
of which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Agreement for Snow Removal on Defense Access Roads between the
County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld
County, on behalf of the Department of Public Works, and the Colorado Department of
Transportation (COOT) be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to
sign said agreement.
The above and foregoing Resolution was, on motion duly made and seconded, adopted by
the following vote on the 2nd day of November, A.D., 2009.
ATTEST:
Weld County Clerk to th
BY(tLl12Gv d
Deputy Clerk to the Bo
APPROEb AS T1:
County Attorney
Date of signature' /1-9
BOARD OF OUNTY COMMISSIONERS
WELQT) COLORADO
Dougla- -adem a er. Pro -Tern
P. Conway
,C,IEG�Ck--
ara Kirker
1
I
David E. Long
�n
2009-2891
EG0060
30. EXHIBIT C - FUNDING PROVISIONS
A. Cost of Work Estimate
The Local Agency has estimated the total cost the Work to be $25,000.00 which is to be funded
as follows:
1
BUDGETED FUNDS
a. Federal Funds
$25,000.00
(100% of Participating Costs)
b. Local Agency Matching Funds
$0.00
(0% of Participating Costs)
d. Local Agency Overmatch
$0.00
(Including Non -Participating Indirects)
TOTAL BUDGETED FUNDS
$25,000.00
2
ESTIMATED CDOT-INCURRED COSTS
a. Federal Share
$0.00
(_ of Participating Costs)
b. Local Agency
Local Agency Share of Participating Costs $0.00
Non -Participating Costs (Including Non -
Participating Indirects) $0.00
Estimated to be Billed to Local Agency
$0.00
TOTAL ESTIMATED CDOT-INCURRED COSTS
$0.00
3
ESTIMATED PAYMENT TO LOCAL AGENCY
a. Federal Funds Budgeted (1a)
$25,000.00
b.
Less Estimated Federal Share of CDOT-Incurred Costs (2a)
$0.00
TOTAL ESTIMATED PAYMENT TO LOCAL AGENCY
$25,000.00
FOR CDOT ENCUMBRANCE PURPOSES
Total Encumbrance Amount ($25,000.00 divided by
100%)
$25,000.00
Less ROW Acquisition 3111 and/or ROW
Relocation 3109
$0.00
Net to be encumbered as follows:
$0.00
WBS Element 16773.10.50 Misc. 3403
$25,000.00
Page 1 of 2
B. Matching Funds
The matching ratio for the federal participating funds for this Work is 100% federal -aid funds
(CFDA #20 2050) to 0% Local Agency funds, it being understood that such ratio applies only to
the $25,000.00 that is eligible for federal participation, it being further understood that all
non -participating costs are borne by the Local Agency at 100%. If the total participating cost of
performance of the Work exceeds $25,000.00, and additional federal funds are made available
for the Work, the Local Agency shall pay 0% of all such costs eligible for federal participation
and 100% of all non -participating costs; if additional federal funds are not made available, the
local Agency shall pay all such excess costs. If the total participating cost of performance of the
Work is less than $25,000.00, then the amounts of Local Agency and federal -aid funds will be
decreased in accordance with the funding ratio described herein. The performance of the Work
shall be at no cost to the State.
C. Maximum Amount Payable
The maximum amount payable to the Local Agency under this Agreement shall be $25,000.00
(For CDOT accounting purposes, the federal funds of $25,000.00 and will be encumbered for a
total encumbrance of $25,000.00), unless such amount is increased by an appropriate written
modification to this Agreement executed before any increased cost is incurred. It is understood
and agreed by the parties hereto that the total cost of the Work stated hereinbefore is the best
estimate available, based on the design data as approved at the time of execution of this
Agreement, and that such cost is subject to revisions (in accord with the procedure in the
previous sentence) agreeable to the parties prior to bid and award.
D. Single Audit Act Amendment
All state and local government and non-profit organization Sub -The Local Agencys receiving
more than $500,000 from all funding sources defined as federal financial assistance for Single
Audit Act Amendment purposes, shall comply with the audit requirements of OMB Circular A-
133 (Audits of States, Local Governments and Non -Profit Organizations) see also, 49 C.F.R.
18.20 through 18.26. The Single Audit Act Amendment requirements applicable to Sub -The
Local Agencys receiving federal funds are as follows:
i. Expenditure less than $500,000
If the Sub -The Local Agency expends less than $500,000 in Federal funds (all federal
sources, not just Highway funds) in its fiscal year then this requirement does not apply.
ii. Expenditure exceeding than $500,000 -Highway Funds Only
If the Sub -The Local Agency expends more than $500,000 in Federal funds, but only
received federal Highway funds (Catalog of Federal Domestic Assistance, CFDA 20.205)
then a program specific audit shall be performed. This audit will examine the "financial"
procedures and processes for this program area.
iii. Expenditure exceeding than $500,000 -Multiple Funding Sources
If the Sub -The Local Agency expends more than $500,000 in Federal funds, and the Federal
funds are from multiple sources (FTA, HUD, NPS, etc.) then the Single Audit Act applies,
which is an audit on the entire organization/entity.
iv. Independent CPA
Single Audit shall only be conducted by an independent CPA, not by an auditor on staff. An
audit is an allowable direct or indirect cost.
Page 2 of 2
31. EXHIBIT D - OPTION LETTER
SAMPLE IGA OPTION LETTER
(This option has been created by the Office of the State Controller for CDOT use only)
NOTE: This option is limited to the specific contract scenarios listed below
AND may be used in place of exercising a formal amendment.
Date:
State Fiscal Year:
Option Letter No.
CLIN Routing #
Original Contract CMS #
Original Contract SAP #
Option Letter CMS #
Option Letter SAP #
Vendor name:
A. SUBJECT: (Choose applicable options listed below AND in section B and delete the rest)
1. Level of service change within current term due to an unexpected Local overmatch on an overbid
situation ONLY;
2. Option to add phasing to include Design, Construction, Environmental, Utilities, ROW incidentals or
Miscellaneous ONLY (does not apply to Acquisition/Relocation or Railroads);
3. Option to update funding (a new Exhibit C must be attached with the option letter and shall be
labeled C-1 (future changes for this option shall be labeled as follows: C-2, C-3, C-4, etc.)
B. REQUIRED PROVISIONS. All Option Letters shall contain the appropriate provisions set forth
below:
(Insert the following language for use with Option #1):
In accordance with the terms of the original Agreement (insert FY, Agency code & CLIN routing # of
Basic Contract) between the State of Colorado, Department of Transportation and (insert the Local
Agency's name here), the State hereby exercises the option to record a level of service change due to
unexpected overmatch dollars due to an overbid situation. The Agreement is now increased by
(indicate additional dollars here) specified in Paragraph/Section/Provision of the
original Agreement.
(Insert the following language for use with Option #2):
In accordance with the terms of the original Agreement (insert FY, Agency code & CLIN routing #
Basic Contract) between the State of Colorado, Department of Transportation and [insert the Local
Agency's name here), the State hereby exercises the option to add an overlapping phase in (indicate
Fiscal Year here) that will include (describe which phase will be added and include all that apply —
Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous). Total funds for
this Agreement remain the same (indicate total dollars here) as referenced in
Paragraph/Section/Provision/Exhibit of the original Agreement.
(Insert the following language for use with Option #3):
In accordance with the terms of the original Agreement (insert FY, Agency code & CLIN routing # of
Basic Contract) between the State of Colorado, Department of Transportation and (insert the Local
Agency's name here), the State hereby exercises the option to update funding based on changes
from state, federal, local match and/or local agency overmatch funds. The Agreement is now (select
one: increased and/or decreased) by (insert dollars here) specified in Paragraph/-Section/-
Provision/Exhibit of the original Agreement. A new Exhibit C-1 is made part of the
original Agreement and replaces Exhibit C. (The following is a NOTE only so please delete when
Page 1 of 2
using this option: future changes for this option for Exhibit C shall be labeled as follows: C-2, C-3, C-4,
etc.)
fThe following language must be included on ALL options):
The amount of the current Fiscal Year contract value is (increased/decreased) by ($ amount of
change) to a new Agreement value of ($ ) to satisfy services/goods ordered under the
Agreement for the current fiscal year (indicate Fiscal Year). The first sentence in
Paragraph/Section/Provision is hereby modified accordingly.
The total Agreement value to include all previous amendments, option letters, etc. is
($ ).
The effective date of this Option Letter is upon approval of the State Controller or delegate.
APPROVALS:
For the The Local Agency:
Legal Name of the Local Agency
By:
Print Name of Authorized Individual
Signature:
Date:
Title: Official Title of Authorized Individual
State of Colorado:
Bill Ritter, Jr., Governor
By: Date:
Executive Director, Colorado Department of Transportation
ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER
CRS §24-30-202 requires the State Controller to approve all State Contracts. This Agreement is not valid
until signed and dated below by the State Controller or delegate. Contractor is not authorized to begin
performance until such time. If the Local Agency begins performing prior thereto, the State of Colorado
is not obligated to pay the Local Agency for such performance or for any goods and/or services
provided hereunder.
State Controller
David J. McDermott, CPA
By:
Date:
Form Updated: June 12, 2008
Page 2 of 2
32. EXHIBIT E - LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST
Intentionally Omottied
Page 1 of 1
33. EXHIBIT F - CERTIFICATION FOR FEDERAL -AID CONTRACTS
The Local Agency certifies, by signing this Agreement, to the best of its knowledge and belief, that:
No Federal appropriated funds have been paid or will be paid, by or on behalf or the undersigned, to
any person for influencing or attempting to influence an officer or employee of any Federal agency, a
Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress
in connection with the awarding of any Federal loan, the entering into of any cooperative agreement,
and the extension, continuation, renewal, amendment, or modification of any Federal contract,
Agreement, loan, or cooperative agreement.
If any funds other than Federal appropriated funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or of Congress, or an employee of a Member of
Congress in connection with this Federal contract, Agreement, loan, or cooperative agreement, the
undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in
accordance with its instructions.
This certification is a material representation of fact upon which reliance was placed when this
transaction was made or entered into. Submission of this certification is a prerequisite for making or
entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to
file the required certification shall be subject to a civil penalty of not less than $10,000 and not more
than $100,000 for each such failure.
The prospective participant also agree by submitting his or her bid or proposal that he or she shall
require that the language of this certification be included in all lower tier subcontracts, which exceed
$100,000 and that all such sub -recipients shall certify and disclose accordingly.
Required by 23 CFR 635.112
Page 1 of 1
34. EXHIBIT G - DISADVANTAGED BUSINESS ENTERPRISE
SECTION 1. Policy.
It is the policy of the Colorado Department of Transportation (CDOT) that disadvantaged business
enterprises shall have the maximum opportunity to participate in the performance of contracts financed
in whole or in part with Federal funds under this agreement, pursuant to 49 CFR Part 23.
Consequently, the 49 CFR Part IE DBE requirements the Colorado Department of Transportation DBE
Program (or a Local Agency DBE Program approved in advance by the State) apply to this agreement.
SECTION 2. DBE Obligation.
The recipient or its the Local Agency agrees to ensure that disadvantaged business enterprises as
determined by the Office of Certification at the Colorado Department of Regulatory Agencies have the
maximum opportunity to participate in the performance of contracts and subcontracts financed in whole
or in part with Federal funds provided under this agreement. In this regard, all participants or
contractors shall take all necessary and reasonable steps in accordance with the CDOT DBE program
(or a Local Agency DBE Program approved in advance by the State) to ensure that disadvantaged
business enterprises have the maximum opportunity to compete for and perform contracts. Recipients
and their contractors shall not discriminate on the basis of race, color, national origin, or sex in the
award and performance of CDOT assisted contracts.
SECTION 3 DBE Program.
The Local Agency (sub -recipient) shall be responsible for obtaining the Disadvantaged Business
Enterprise Program of the Colorado Department of Transportation, 1988, as amended, and shall
comply with the applicable provisions of the program. (If applicable).
A copy of the DBE Program is available from and will be mailed to the Local Agency upon request:
Business Programs Office
Colorado Department of Transportation
4201 East Arkansas Avenue, Room 287
Denver, Colorado 80222-3400
Phone: (303) 757-9234
revised 1/22/98 Required by 49 CFR Part 23.41
Page 1 of 1
35. EXHIBIT H - LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES
THE LOCAL AGENCY SHALL USE THESE PROCEDURES TO IMPLEMENT FEDERAL -AID
PROJECT AGREEMENTS WITH PROFESSIONAL CONSULTANT SERVICES
Title 23 Code of Federal Regulations (CFR) 172 applies to a federally funded local agency project
agreement administered by CDOT that involves professional consultant services. 23 CFR 172.1
states "The policies and procedures involve federally funded contracts for engineering and design
related services for projects subject to the provisions of 23 U.S.C. 112(a) and are issued to ensure
that a qualified consultant is obtained through an equitable selection process, that prescribed work
is properly accomplished in a timely manner, and at fair and reasonable cost" and according to 23
CFR 172.5 "Price shall not be used as a factor in the analysis and selection phase." Therefore, local
agencies must comply with these CFR requirements when obtaining professional consultant
services under a federally funded consultant contract administered by CDOT.
CDOT has formulated its procedures in Procedural Directive (P.D.) 400.1 and the related
operations guidebook titled "Obtaining Professional Consultant Services". This directive and
guidebook incorporate requirements from both Federal and State regulations, i.e., 23 CFR 172 and
CRS §24-30-1401 et seq. Copies of the directive and the guidebook may be obtained upon request
from CDOT's Agreements and Consultant Management Unit. [Local agencies should have their own
written procedures on file for each method of procurement that addresses the items in 23 CFR 172].
Because the procedures and laws described in the Procedural Directive and the guidebook are
quite lengthy, the subsequent steps serve as a short -hand guide to CDOT procedures that a local
agency must follow in obtaining professional consultant services. This guidance follows the format
of 23 CFR 172. The steps are:
1. The contracting local agency shall document the need for obtaining professional services.
2. Prior to solicitation for consultant services, the contracting local agency shall develop a
detailed scope of work and a list of evaluation factors and their relative importance. The
evaluation factors are those identified in C.R.S. 24-30-1403. Also, a detailed cost estimate
should be prepared for use during negotiations.
3. The contracting agency must advertise for contracts in conformity with the requirements of
C.R.S. 24-30-1405. The public notice period, when such notice is required, is a minimum of
15 days prior to the selection of the three most qualified firms and the advertising should be
done in one or more daily newspapers of general circulation.
4. The request for consultant services should include the scope of work, the evaluation factors
and their relative importance, the method of payment, and the goal of 10% for Disadvantaged
Business Enterprise (DBE) participation as a minimum for the project.
5. The analysis and selection of the consultants shall be done in accordance with CRS §24-30-
1403. This section of the regulation identifies the criteria to be used in the evaluation of CDOT
pre -qualified prime consultants and their team. It also shows which criteria are used to short-
list and to make a final selection.
The short-list is based on the following evaluation factors:
a. Qualifications,
b. Approach to the Work,
c. Ability to furnish professional services.
d. Anticipated design concepts, and
e. Alternative methods of approach for furnishing the professional services.
Page 1 of 2
Evaluation factors for final selection are the consultant's:
a. Abilities of their personnel,
b. Past performance,
c. Willingness to meet the time and budget requirement,
d. Location,
e. Current and projected work load,
f. Volume of previously awarded contracts, and
g. Involvement of minority consultants.
6. Once a consultant is selected, the local agency enters into negotiations with the consultant to
obtain a fair and reasonable price for the anticipated work. Pre -negotiation audits are
prepared for contracts expected to be greater than $50,000. Federal reimbursements for
costs are limited to those costs allowable under the cost principles of 48 CFR 31. Fixed fees
(profit) are determined with consideration given to size, complexity, duration, and degree of
risk involved in the work. Profit is in the range of six to 15 percent of the total direct and
indirect costs.
7. A qualified local agency employee shall be responsible and in charge of the Work to ensure
that the work being pursued is complete, accurate, and consistent with the terms, conditions,
and specifications of the contract. At the end of Work, the local agency prepares a
performance evaluation (a CDOT form is available) on the consultant.
8. Each of the steps listed above is to be documented in accordance with the provisions of 49
CFR 18.42, which provide for records to be kept at least three years from the date that the
local agency submits itsfinal expenditure report. Records of projects under litigation shall be
kept at least three years after the case has been settled.
CRS §§24-30-1401 through 24-30-1408, 23 CFR Part 172, and P.D. 400.1, provide additional
details for complying with the preceeding eight (8) steps.
Page 2 of 2
36. EXHIBIT I - FEDERAL -AID CONTRACT PROVISIONS
FHWA-1273 Electronic version — March 10. 1994
FHWA Form 1273
REQUIRED CONTRACT PROVISIONS
FEDERAL -AID CONSTRUCTION CONTRACTS
I. General 1
II. Nondiscrimination 1
III. Non -segregated Facilities 3
IV. Payment of Predetermined Minimum Wage 3
V.Statements and Payrolls 6
VI.Record of Materials, Supplies, and Labor 6
VII. Subletting or Assigning the Contract 7
VIII. Safety: Accident Prevention 7
IX. False Statements Concerning Highway Projects 7
X. Implementation of Clean Air Act and Federal
Water Pollution Control Act 8
XI.Certification Regarding Debarment, Suspension,
Ineligibility, and Voluntary Exclusion 8
XII. Certification Regarding Use of Contract Funds for
Lobbying 9
ATTACHMENTS
A.Employment Preference for Appalachian Contracts
(included in Appalachian contracts only)
I. GENERAL
1. These contract provisions shall apply to all work performed on the
contract by the contractor's own organization and with the assistance of
workers under the contractor's immediate superintendence and to all
work performed on the contract by piecework, station work, or by
subcontract.
2. Except as otherwise provided for in each section, the contractor
shall insert in each subcontract all of the stipulations contained in these
Required Contract Provisions, and further require their inclusion in any
lower tier subcontract or purchase order that may in turn be made. The
Required Contract Provisions shall not be incorporated by reference in
any case. The prime contractor shall be responsible for compliance by
any subcontractor or lower tier subcontractor with these Required
Contract Provisions.
3. A breach of any of the stipulations contained in these Required
Contract Provisions shall be sufficient grounds for termination of the
contract.
4. A breach of the following clauses of the Required Contract
Provisions may also be grounds for debarment as provided in 29 CFR
5.12:
Section I, paragraph 2:
Section IV, paragraphs 1, 2, 3, 4, and 7;
Section V, paragraphs 1 and 2a through 2g.
5. Disputes arising out of the labor standards provisions of Section IV
(except paragraph 5) and Section V of these Required Contract
Provisions shall not be subject to the general disputes clause of this
Agreement. Such disputes shall be resolved in accordance with the
procedures of the U.S. Department of Labor (DOL) as set forth in 29
CFR 5. 6. and 7. Disputes within the meaning of this clause include
disputes between the contractor (or any of its subcontractors) and the
contracting agency, the DOL, or the contractor's employees or their
representatives.
6. Selection of Labor: During the performance of this Agreement,
the contractor shall not:
a. discriminate against labor from any other State, possession, or
territory of the United States (except for employment preference for
Appalachian contracts, when applicable, as specified in Attachment A),
or
b employ convict labor for any purpose within the limits of the
project unless it is labor performed by convicts who are on parole.
supervised release, or probation.
II. NONDISCRIMINATION
(Applicable to all Federal -aid construction contracts and to all related
subcontracts of $10,000 or more.)
1. Equal Employment Opportunity: Equal employment opportunity
(EEO) requirements not to discriminate and to take affirmative action to
assure equal opportunity as set forth under laws, executive orders,
rules, regulations (28 CFR 35, 29 CFR 1630 and 41 CFR 60) and orders
of the Secretary of Labor as modified by the provisions prescribed
herein, and imposed pursuant to 23 U.S.C. 140 shall constitute the EEO
and specific affirmative action standards for the contractor's project
activities under this Agreement. The Equal Opportunity Construction
Contract Specifications set forth under 41 CFR 60-4.3 and the
provisions of the American Disabilities Act of 1990 (42 U.S.C. 12101 et
seq.) set forth under 28 CFR 35 and 29 CFR 1630 are incorporated by
reference in this Agreement. In the execution of this Agreement, the
contractor agrees to comply with the following minimum specific
requirement activities of EEO:
a. The contractor will work with the State highway agency (SHA)
and the Federal Government in carrying out EEO obligations and in their
review of his/her activities under the contract.
b. The contractor will accept as his operating policy the following
statement:
"It is the policy of this Company to assure that applicants are
employed, and that employees are treated during employment,
without regard to their race, religion, sex, 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
SHA contracting officers an EEO Officer who will have the responsibility
for and must be capable of effectively administering and promoting an
active contractor program of EEO and who must be assigned adequate
authority and responsibility to do so.
3. Dissemination of Policy: All members of the contractor's staff
who are authorized to hire, supervise, promote, and discharge
employees, or who recommend such action, or who are substantially
involved in such action, 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.
b. All new supervisory or personnel office employees will be
given a thorough indoctrination by the EEO Officer, covering all major
aspects of the contractor's EEO obligations within thirty days following
their reporting for duty with the contractor.
c. All personnel who are engaged in direct recruitment for the
project will be instructed by the EEO Officer in the contractor's
procedures for locating and hiring minority group employees.
d. Notices and posters setting forth the contractor's EEO policy
will be placed in areas readily accessible to employees, applicants for
employment and potential employees.
e. The contractor's EEO policy and the procedures to implement
such policy will be brought to the attention of employees by means of
meetings, employee handbooks, or other appropriate means.
4. Recruitment: When advertising for employees. the contractor will
include in all advertisements for employees the notation: "An Equal
Page
1 of 8 REQUIRED BY 23 CFR 633.102 --
Opportunity Employer." All such advertisements will be placed in
publications having a large circulation among minority groups in the area
from which the project work force would normally be derived.
a. The contractor will, unless precluded by a valid bargaining
agreement, conduct systematic and direct recruitment through public
and private employee referral sources likely to yield qualified minority
group applicants. To meet this requirement, the contractor will identify
sources of potential minority group employees, and establish with such
identified sources procedures whereby minority group applicants may be
referred to the contractor for employment consideration.
b. In the event the contractor has a valid bargaining agreement
providing for exclusive hiring hall referrals, he is expected to observe the
provisions of that agreement to the extent that the system permits the
contractor's compliance with EEO contract provisions. (The DOL has
held that where implementations of such agreements have the effect of
discriminating against minorities or women, or obligates the contractor to
do the same, such implementation violates Executive Order 11246, as
amended.)
c. The contractor will encourage his present employees to refer
minority group applicants for employment. Information and procedures
with regard to referring minority group applicants will be discussed with
employees.
5. Personnel Actions: Wages, working conditions, and employee
benefits shall be established and administered, and personnel actions of
every type, including hiring, upgrading, promotion, transfer, demotion,
layoff, and termination, shall be taken without regard to race, color,
religion, sex, national origin, age or disability. The following procedures
shall be followed:
a. The contractor will conduct periodic inspections of project sites
to insure that working conditions and employee facilities do not indicate
discriminatory treatment of project site personnel.
b. The contractor will periodically evaluate the spread of wages
paid within each classification to determine any evidence of
discriminatory wage practices.
c. The contractor will periodically review selected personnel
actions in depth to determine whether there is evidence of discrimi-
nation. Where evidence is found, the contractor will promptly take
corrective action. If the review indicates that the discrimination may
extend beyond the actions reviewed, such corrective action shall include
all affected persons.
d. The contractor will promptly investigate all complaints of alleged
discrimination made to the contractor in connection with his obligations
under this Agreement, will attempt to resolve such complaints, and will
take appropriate corrective action within a. reasonable time. If the
investigation indicates that the discrimination may affect persons other
than the complainant, such corrective action shall include such other
persons. Upon completion of each investigation, the contractor will
inform every complainant of all of his avenues of appeal.
6. Training and Promotion:
a. The contractor will assist in locating, qualifying, and increasing
the skills of minority group and women employees, and applicants for
employment.
b. Consistent with the contractors work force requirements and
as permissible under Federal and State regulations, the contractor shall
make full use of training programs, i.e., apprenticeship, and on-the-job
training programs for the geographical area of contract performance.
Where feasible, 25 percent of apprentices or trainees in each occupation
shall be in their first year of apprenticeship or training. In the event a
special provision for training is provided under this Agreement, this
subparagraph will be superseded as indicated in the special provision.
c. The contractor will advise employees and applicants for
employment of available training programs and entrance requirements
for each.
d. The contractor will periodically review the training and
promotion potential of minority group and women employees and will
encourage eligible employees to apply for such training and promotion.
7. Unions: If the contractor relies in whole or in part upon unions as a
source of employees, the contractor will use his/her best efforts to obtain
the cooperation of such unions to increase opportunities for minority
groups and women within the unions, and to effect referrals by such
unions of minority and female employees. Actions by the contractor
Page 2
either directly or through a contractor's association acting as agent will
include the procedures set forth below:
a. The contractor will use best efforts to develop, in cooperation
with the unions, joint training programs aimed toward qualifying more
minority group members and women for membership in the unions and
increasing the skills of minority group employees and women so that
they may qualify for higher paying employment.
b. The contractor will use best efforts to incorporate an EEO
clause into each union agreement to the end that such union will be
contractually bound to refer applicants without regard to their race, color,
religion, sex, national origin, age or disability.
c. 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 SHA 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 minority and women referrals within the time limit set
forth in the collective bargaining agreement, the contractor will, through
independent recruitment efforts, fill the employment vacancies without
regard to race, color, religion, sex, national origin, age or disability,
making full efforts to obtain qualified and/or qualifiable minority group
persons and women. (The DOL has held that it shall be no excuse that
the union with which the contractor has a collective bargaining
agreement providing for exclusive referral failed to refer minority
employees.) In the event the union referral practice prevents the
contractor from meeting the obligations pursuant to Executive Order
11246, as amended, and these special provisions, such contractor shall
immediately notify the SHA.
8. Selection of Subcontractors, Procurement of Materials and
Leasing of Equipment: The contractor shall not discriminate on the
grounds of race, color, religion, sex, national origin, age or disability in
the selection and retention of subcontractors, including procurement of
materials and leases of equipment.
a. The contractor shall notify all potential subcontractors and
suppliers of his/her EEO obligations under this Agreement.
b. Disadvantaged business enterprises (DBE), as defined in 49
CFR 23, shall have equal opportunity to compete for and perform
subcontracts which the contractor enters into pursuant to this
Agreement. The contractor will use his best efforts to solicit bids from
and to utilize DBE subcontractors or subcontractors with meaningful
minority group and female representation among their employees.
Contractors shall obtain lists of DBE construction firms from SHA
personnel.
c. The contractor will use his best efforts to ensure subcontractor
compliance with their EEO obligations.
9. Records and 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 completion
of the contract work and shall be available at reasonable times and
places for inspection by authorized representatives of the SHA and the
FHWA.
a. The records kept by the contractor shall document the
following:
(1) The number 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;
(3) The progress and efforts being made in locating, hiring,
training, qualifying, and upgrading minority and female employees; and
(4) The progress and efforts being made in securing the
services of DBE subcontractors or subcontractors with meaningful
minority and female representation among their employees.
b. The contractors will submit an annual report to the SHA each
July for the duration of the project, indicating the number of minority,
women, and non -minority group employees currently engaged in each
work classification required by the contract work. This information is to
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REQUIRED BY 23 CFR 633.102 --
be reported on Form FHWA-1391. If on -the job training is being required
by special provision, the contractor will be required to collect and report
training data.
III. NONSEGREGATED FACILITIES
(Applicable to all Federal -aid construction contracts and to all related
subcontracts of $10,000 or more.)
a. By submission of this bid, the execution of this Agreement or
subcontract, or the consummation of this material supply agreement or
purchase order, as appropriate, the bidder, Federal -aid construction
contractor, subcontractor, material supplier, or vendor, as appropriate,
certifies that the firm does not maintain or provide for its employees any
segregated facilities at any of its establishments, and that the firm does
not permit its employees to perform their services at any location, under
its control, where segregated facilities are maintained. The firm agrees
that a breach of this certification is a violation of the EEO provisions of
this Agreement. The firm further certifies that no employee will be denied
access to adequate facilities on the basis of sex or disability.
b. As used in this certification, the term "segregated facilities"
means any waiting rooms, work areas, restrooms and washrooms,
restaurants and other eating areas, timeclocks, locker rooms, and other
storage or dressing areas, parking lots, drinking fountains, recreation or
entertainment areas, transportation, and housing facilities provided for
employees which are segregated by explicit directive, or are, in fact,
segregated on the basis of race, color, religion, national origin, age or
disability, because of habit, local custom, or otherwise. The only
exception will be for the disabled when the demands for accessibility
override (e.g. disabled parking).
c. The contractor agrees that it has obtained or will obtain identical
certification from proposed subcontractors or material suppliers prior to
award of subcontracts or consummation of material supply agreements
of $10,000 or more and that it will retain such certifications in its files.
IV. PAYMENT OF PREDETERMINED MINIMUM WAGE
(Applicable to all Federal -aid construction contracts exceeding
$2,000 and to all related subcontracts, except for projects located on
roadways classified as local roads or rural minor collectors, which are
exempt.)
1. General:
a. All mechanics and laborers employed or working upon the site
of the work will be paid unconditionally and not less often than once a
week and without subsequent deduction or rebate on any account
[except such payroll deductions as are permitted by regulations (29 CFR
3) issued by the Secretary of Labor under the Copeland Act (40 U.S.C.
276c)j the full amounts of wages and bona fide fringe benefits (or cash
equivalents thereof) due at time of payment. The payment shall be
computed at wage rates not less than those contained in the wage
determination of the Secretary of Labor (hereinafter "the wage determi-
nation") which is attached hereto and made a part hereof, regardless of
any contractual relationship which may be alleged to exist between the
contractor or its subcontractors and such laborers and mechanics. The
wage determination (including any additional classifications and wage
rates conformed under paragraph 2 of this Section IV and the DOL
poster (WH-1321) or Form FHWA-1495) shall be posted at all times by
the contractor and its subcontractors at the site of the work in a
prominent and accessible place where it can be easily seen by the
workers. For the purpose of this Section, contributions made or costs
reasonably anticipated for bona fide fringe benefits under Section 1(bX2)
of the Davis -Bacon Act (40 U.S.C. 276a) on behalf of laborers or
mechanics are considered wages paid to such laborers or mechanics,
subject to the provisions of Section IV, paragraph 3b, hereof. Also, for
the purpose of this Section, regular contributions made or costs incurred
for more than a weekly period (but not less often than quarterly) under
plans, funds, or programs, which cover the particular weekly period, are
deemed to be constructively made or incurred during such weekly
period. Such laborers and mechanics shall be paid the appropriate wage
rate and fringe benefits on the wage determination for the classification
of work actually performed, without regard to skill, except as provided in
paragraphs 4 and 5 of this Section IV.
b. Laborers or mechanics performing work in more than one
classification may be compensated at the rate specified for each
classification for the time actually worked therein, provided, that the
employees payroll records accurately set forth the time spent in each
classification in which work is performed.
c. All rulings and interpretations of the Davis -Bacon Act and
related acts contained in 29 CFR 1, 3, and 5 are herein incorporated by
reference in this Agreement.
2. Classification:
a. The SHA contracting officer shall require that any class of
laborers or mechanics employed under the contract, which is not listed
in the wage determination, shall be classified in conformance with the
wage determination.
b. The contracting officer shall approve an additional
classification, wage rate and fringe benefits only when the following
criteria have been met:
(1) the work to be performed by the additional classification
requested is not performed by a classification in the wage determination:
(2) the additional classification is utilized in the area by the
construction industry;
(3) the proposed wage rate, including any bona fide fringe
benefits, bears a reasonable relationship to the wage rates contained in
the wage determination; and
(4) with respect to helpers, when such a classification
prevails in the area in which the work is performed.
c. If the contractor or subcontractors, as appropriate, the laborers
and mechanics (if known) to be employed in the additional classification
or their representatives, and the contracting officer agree on the
classification and wage rate (including the amount designated for fringe
benefits where appropriate), a report of the action taken shall be sent by
the contracting officer to the DOL, Administrator of the Wage and Hour
Division, Employment Standards Administration, Washington, D.C.
20210. The Wage and Hour Administrator, or an authorized representa-
tive, will approve, modify, or disapprove every additional classification
action within 30 days of receipt and so advise the contracting officer or
will notify the contracting officer within the 30 -day period that additional
time is necessary.
d. In the event the contractor or subcontractors, as appropriate,
the laborers or mechanics to be employed in the additional classification
or their representatives, and the contracting officer do not agree on the
proposed classification and wage rate (including the amount designated
for fringe benefits, where appropriate), the contracting officer shall refer
the questions, including the views of all interested parties and the
recommendation of the contracting officer, to the Wage and Hour
Administrator for determination. Said Administrator, or an authorized
representative, will issue a determination within 30 days of receipt and
so advise the contracting officer or will notify the contracting officer
within the 30 -day period that additional time is necessary
e. The wage rate (including fringe benefits where appropriate)
determined pursuant to paragraph 2c or 2d of this Section IV shall be
paid to all workers performing work in the additional classification from
the first day on which work is performed in the classification.
3. Payment of Fringe Benefits:
a. Whenever the minimum wage rate prescribed in the contract
for a class of laborers or mechanics includes a fringe benefit which is not
expressed as an hourly rate, the contractor or subcontractors, as
appropriate, shall either pay the benefit as stated in the wage
determination or shall pay another bona fide fringe benefit or an hourly
case equivalent thereof.
b. If the contractor or subcontractor, as appropriate, does not
make payments to a trustee or other third person, he/she may consider
as a part of the wages of any 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, that the applicable standards of the
Davis -Bacon Act have been met. The Secretary of Labor may require
the contractor to set aside in a separate account assets for the meeting
of obligations under the plan or program.
4. Apprentices and Trainees (Programs of the U.S. DOL) and
Helpers:
a. Apprentices:
(1) Apprentices will be permitted to work at less than the
predetermined rate for the work they performed when they are employed
Page 3 of 8
REQUIRED BY 23 CFR 633.102 --
pursuant to and individually registered in a bona fide apprenticeship
program registered with the DOL, Employment and Training
Administration, Bureau of Apprenticeship and Training, or with a State
apprenticeship agency recognized by the Bureau, or if a person is
employed in his/her first 90 days of probationary employment as an
apprentice in such an apprenticeship program, who is not individually
registered in the program, but who has been certified by the Bureau of
Apprenticeship and Training or a State apprenticeship agency (where
appropriate) to be eligible for probationary employment as an
apprentice.
(2) The allowable ratio of apprentices to journeyman -level
employees on the job site in any craft classification shall not be greater
than the ratio permitted to the contractor as to the entire work force
under the registered program. Any employee listed on a payroll at an
apprentice wage rate, who is not registered or otherwise employed as
stated above, shall be paid not less than the applicable wage rate listed
in the wage determination for the classification of work actually
performed. In addition, any apprentice performing work on the job site in
excess of the ratio permitted under the registered program shall be paid
not less than the applicable wage rate on the wage determination for the
work actually performed. Where a contractor or subcontractor is
performing construction on a project in a locality other than that in which
its program is registered, the ratios and wage rates (expressed in
percentages of the journeyman -level hourly rate) specified in the
contractor's or subcontractor's registered program shall be observed.
(3) Every apprentice must be paid at not less than the rate
specified in the registered program for the apprentice's level of progress,
expressed as a percentage of the journeyman -level hourly rate specified
in the applicable wage determination. Apprentices shall be paid fringe
benefits in accordance with the provisions of the apprenticeship
program. If the apprenticeship program does not specify fringe benefits,
apprentices must be paid the full amount of fringe benefits listed on the
wage determination for the applicable classification. If the Administrator
for the Wage and Hour Division determines that a different practice
prevails for the applicable apprentice classification, fringes shall be paid
in accordance with that determination.
(4) In the event the Bureau of Apprenticeship and Training,
or a State apprenticeship agency recognized by the Bureau, withdraws
approval of an apprenticeship program, the contractor or subcontractor
will no longer be permitted to utilize apprentices at less than the
applicable predetermined rate for the comparable work performed by
regular employees until an acceptable program is approved.
b. Trainees:
(1) Except as provided in 29 CFR 5.16, trainees will not be
permitted to work at less than the predetermined rate for the work
performed unless they are employed pursuant to and individually
registered in a program which has received prior approval, evidenced by
formal certification by the DOL, Employment and Training
Administration.
(2) The ratio of trainees to joumeyman-level employees on
the job site shall not be greater than permitted under the plan approved
by the Employment and Training Administration. Any employee listed on
the payroll at a trainee rate who is not registered and participating in a
training plan approved by the Employment and Training Administration
shall be paid not less than the applicable wage rate on the wage
determination for the classification of work actually performed. In
addition, any trainee performing work on the job site in excess of the
ratio permitted under the registered program shall be paid not less than
the applicable wage rate on the wage determination for the work actually
performed.
(3) Every trainee must be paid at not less than the rate
specified in the approved program for his/her level of progress,
expressed as a percentage of the journeyman -level hourly rate specified
in the applicable wage determination. Trainees shall be paid fringe
benefits in accordance with the provisions of the trainee program. If the
trainee program does not mention fringe benefits, trainees shall be paid
the full amount of fringe benefits listed on the wage determination unless
the Administrator of the Wage and Hour Division determines that there is
an apprenticeship program associated with the corresponding
journeyman -level wage rate on the wage determination which provides
for less than full fringe benefits for apprentices, in which case such
trainees shall receive the same fringe benefits as apprentices.
(4) In the event the Employment and Training Administration
withdraws approval of a training program, the contractor or
subcontractor will no longer be permitted to utilize trainees at less than
the applicable predetermined rate for the work performed until an
acceptable program is approved.
c. Helpers:
Helpers will be permitted to work on a project if the helper
classification is specified and defined on the applicable wage determina-
tion or is approved pursuant to the conformance procedure set forth in
Section IV.2. Any worker listed on a payroll at a helper wage rate, who is
not a helper under a approved definition, shall be paid not less than the
applicable wage rate on the wage determination for the classification of
work actually performed.
5. Apprentices and Trainees (Programs of the U.S. DOT):
Apprentices and trainees working under apprenticeship and skill
training programs which have been certified by the Secretary of
Transportation as promoting EEO in connection with Federal -aid
highway construction programs are not subject to the requirements of
paragraph 4 of this Section IV. The straight time hourly wage rates for
apprentices and trainees under such programs will be established by the
particular programs. The ratio of apprentices and trainees to journeymen
shall not be greater than permitted by the terms of the particular
program.
6. Withholding:
The SHA shall upon its own action or upon written request of an
authorized representative of the DOL withhold, or cause to be withheld,
from the contractor or subcontractor under this Agreement or any other
Federal contract with the same prime contractor, or any other Federally -
assisted contract subject to Davis -Bacon prevailing wage requirements
which is held by the same prime contractor, as much of the accrued
payments or advances as may be considered necessary to pay laborers
and mechanics, including apprentices, trainees, and helpers, employed
by the contractor or any subcontractor the full amount of wages required
by the contract. In the event of failure to pay any laborer or mechanic.
including any apprentice, trainee, or helper, employed or working on the
site of the work, all or part of the wages required by the contract, the
SHA contracting officer may, after written notice to the contractor, take
such action as may be necessary to cause the suspension of any further
payment, advance, or guarantee of funds until such violations have
ceased.
7. Overtime Requirements:
No contractor or subcontractor contracting for any part of the
contract work which may require or involve the employment of laborers,
mechanics, watchmen, or guards (including apprentices, trainees, and
helpers described in paragraphs 4 and 5 above) shall require or permit
any laborer, mechanic, watchman, or guard in any workweek in which
he/she is employed on such work, to work in excess of 40 hours in such
workweek unless such laborer, mechanic, watchman, or guard receives
compensation at a rate not less than one -and -one-half times his/her
basic rate of pay for all hours worked in excess of 40 hours in such
workweek.
8. Violation:
Liability for Unpaid Wages; Liquidated Damages: In the event of any
violation of the clause set forth in paragraph 7 above, the contractor and
any subcontractor responsible thereof shall be liable to the affected
employee for his/her unpaid wages. In addition, such contractor and
subcontractor shall be liable to the United States (in the case of work
done under contract for the District of Columbia or a territory, to such
District or to such territory) for liquidated damages. Such liquidated
damages shall be computed with respect to each individual laborer,
mechanic, watchman, or guard employed in violation of the clause set
forth in paragraph 7, in the sum of $10 for each calendar day on which
such employee was required or permitted to work in excess of the
standard work week of 40 hours without payment of the overtime wages
required by the clause set forth in paragraph 7.
9. Withholding for Unpaid Wages and Liquidated Damages:
The SHA shall upon its own action or upon written request of any
authorized representative of the DOL withhold, or cause to be withheld,
from any monies payable on account of work performed by the
contractor or subcontractor under any such contract or any other
Federal contract with the same prime contractor, or any other Federally -
assisted contract subject to the Contract Work Hours and Safety
Standards Act, which is held by the same prime contractor, such sums
as may be determined to be necessary to satisfy any liabilities of such
contractor or subcontractor for unpaid wages and liquidated damages as
provided in the clause set forth in paragraph 8 above.
Page 4 of 8
REQUIRED BY 23 CFR 633.102 --
V. STATEMENTS AND PAYROLLS
(Applicable to all Federal -aid construction contracts exceeding $2,000
and to all related subcontracts, except for projects located on roadways
classified as local roads or rural collectors, which are exempt.)
1. Compliance with Copeland Regulations (29 CFR 3):
The contractor shall comply with the Copeland Regulations of the
Secretary of Labor which are herein incorporated by reference.
2. Payrolls and Payroll Records:
a. Payrolls and basic records relating thereto shall be
maintained by the contractor and each subcontractor during the course
of the work and preserved for a period of 3 years from the date of
completion of the contract for all laborers, mechanics, apprentices,
trainees, watchmen, helpers, and guards working at the site of the work.
b. The payroll records shall contain the name, social security
number, and address of each such employee; his or her correct
classification; hourly rates of wages paid (including rates of contributions
or costs anticipated for bona fide fringe benefits or cash equivalent
thereof the types described in Section 1(bX2XB) of the Davis Bacon
Act); daily and weekly number of hours worked; deductions made; and
actual wages paid. In addition, for Appalachian contracts, the payroll
records shall contain a notation indicating whether the employee does,
or does not, normally reside in the labor area as defined in Attachment
A, paragraph 1. Whenever the Secretary of Labor, pursuant to Section
IV, paragraph 3b, has found that the wages of any laborer or mechanic
include the amount of any costs reasonably anticipated in providing
benefits under a plan or program described in Section 1(bX2XB) of the
Davis Bacon Act, the contractor and each subcontractor shall maintain
records which show that the commitment to provide such benefits is
enforceable, that the plan or program is financially responsible, that the
plan or program has been communicated in writing to the laborers or
mechanics affected, and show the cost anticipated or the actual cost
incurred in providing benefits. Contractors or subcontractors employing
apprentices or trainees under approved programs shall maintain written
evidence of the registration of apprentices and trainees, and ratios and
wage rates prescribed in the applicable programs.
c. Each contractor and subcontractor shall furnish, each week in
which any contract work is performed, to the SHA resident engineer a
payroll of wages paid each of its employees (including apprentices.
trainees, and helpers, described in Section IV, paragraphs 4 and 5, and
watchmen and guards engaged on work during the preceding weekly
payroll period). The payroll submitted shall set out accurately and
completely all of the information required to be maintained under
paragraph 2b of this Section V. This information may be submitted in
any form desired. Optional Form WH-347 is available for this purpose
and may be purchased from the Superintendent of Documents (Federal
stock number 029-005-0014-1), U.S. Government Printing Office,
Washington, D.C. 20402. The prime contractor is responsible for the
submission of copies of payrolls by all subcontractors.
d. Each payroll submitted shall be accompanied by a "Statement
of Compliance." signed by the contractor or subcontractor or his/her
agent who pays or supervises the payment of the persons employed
under the contract and shall certify the following:
(1) that the payroll for the payroll period contains the
information required to be maintained under paragraph 2b of this
Section V and that such information is correct and complete;
(2) that such laborer or mechanic (including each helper,
apprentice, and trainee) employed on the contract during the payroll
period has been paid the full weekly wages earned, without rebate,
either directly or indirectly, and that no deductions have been made
either directly or indirectly from the full wages earned, other than
permissible deductions as set forth in the Regulations, 29 CFR 3;
(3) that each laborer or mechanic has been paid not less that
the applicable wage rate and fringe benefits or cash equivalent for the
classification of worked performed, as specified in the applicable wage
determination incorporated into the contract.
e. The weekly submission of a properly executed certification set
forth on the reverse side of Optional Form WH-347 shall satisfy the
requirement for submission of the "Statement of Compliance" required
by paragraph 2d of this Section V.
f. The falsification of any of the above certifications may subject
the contractor to civil or criminal prosecution under 18 U.S.C. 1001 and
31 U.S.C. 231.
g. The contractor or subcontractor shall make the records
required under paragraph 2b of this Section V available for inspection.
copying, or transcription by authorized representatives of the SHA, the
FHWA, or the DOL, and shall permit such representatives to interview
employees during working hours on the job. If the contractor or
subcontractor fails to submit the required records or to make them
available, the SHA, the FHWA, the DOL, or all may, after written notice
to the contractor, sponsor, applicant, or owner, take such actions as may
be necessary to cause the suspension of any further payment, advance,
or guarantee of funds. Furthermore, failure to submit the required
records upon request or to make such records available may be grounds
for debarment action pursuant to 29 CFR 5.12.
VI. RECORD OF MATERIALS, SUPPLIES, AND LABOR
1. On all Federal -aid contracts on the National Highway System,
except those which provide solely for the installation of protective
devices at railroad grade crossings, those which are constructed on a
force account or direct labor basis, highway beautification contracts, and
contracts for which the total final construction cost for roadway and
bridge is less than $1,000.000 (23 CFR 635) the contractor shall:
a. Become familiar with the list of specific materials and
supplies contained in Form FHWA-47. "Statement of Materials and
Labor Used by Contractor of Highway Construction Involving Federal
Funds," prior to the commencement of work under this Agreement.
b. Maintain a record of the total cost of all materials and
supplies purchased for and incorporated in the work, and also of the
quantities of those specific materials and supplies listed on Form FHWA-
47, and in the units shown on Form FHWA-47.
c. Furnish, upon the completion of the contract, to the SHA
resident engineer on Form FHWA-47 together with the data required in
paragraph 1 b relative to materials and supplies, a final labor summary of
all contract work indicating the total hours worked and the total amount
earned.
2. At the prime contractors option, either a single report covering all
contract work or separate reports for the contractor and for each
subcontract shall be submitted.
VII. SUBLETTING OR ASSIGNING THE CONTRACT
1. The contractor shall perform with its own organization 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 State. Specialty items
may be performed by subcontract and the amount of any such specialty
items performed may be deducted from the total original contract price
before computing the amount of work required to be performed by the
contractor's own organization (23 CFR 635).
a. "Its own organization" shall be construed to include only
workers employed and paid directly by the prime contractor and
equipment owned or rented by the prime contractor, with or without
operators. Such term does not include employees or equipment of a
subcontractor, assignee, or agent of the prime contractor.
b. "Specialty Items" shall be construed to be limited to work
that requires highly specialized knowledge, abilities, or equipment not
ordinarily available in the type of contracting organizations qualified and
expected to bid on the contract as a whole and in general are to be
limited to minor components of the overall contract.
2. The contract amount upon which the requirements set forth in
paragraph 1 of Section VII is computed includes the cost of material and
manufactured products which are to be purchased or produced by the
contractor under the contract provisions.
3. The contractor shall furnish (a) a competent superintendent or
supervisor who is employed by the firm, has full authority to direct
performance of the work in accordance with the contract requirements.
and is in charge of all construction operations (regardless of who
performs the work) and (b) such other of its own organizational
resources (supervision, management, and engineering services) as the
SHA contracting officer determines is necessary to assure the
performance of the contract.
4. No portion of the contract shall be sublet, assigned or otherwise
Page 5 of 8
REQUIRED BY 23 CFR 633.102 --
disposed of except with the written consent of the SHA contracting
officer, or authorized representative, and such consent when given shall
not be construed to relieve the contractor of any responsibility for the
fulfillment of the contract. Written consent will be given only after the
SHA has assured that each subcontract is evidenced in writing and that
it contains all pertinent provisions and requirements of the prime
contract.
VIII. SAFETY: ACCIDENT PREVENTION
1. In the performance of this Agreement the contractor shall comply
with all applicable Federal, State, and local laws governing safety,
health, and sanitation (23 CFR 635). The contractor shall provide all
safeguards, safety devices and protective equipment and take any other
needed actions as it determines, or as the SHA contracting officer may
determine, to be reasonably necessary to protect the life and health of
employees on the job and the safety of the public and to protect property
in connection with the performance of the work covered by the contract.
2. It is a condition of this Agreement, and shall be made a condition of
each subcontract, which the contractor enters into pursuant to this
Agreement, that the contractor and any subcontractor shall not permit
any employee, in performance of the contract, to work in surroundings or
under conditions which are unsanitary, hazardous or dangerous to
his/her health or safety, as determined under construction safety and
health standards (29 CFR 1926) promulgated by the Secretary of Labor,
in accordance with Section 107 of the Contract Work Hours and Safety
Standards Act (40 U.S.C. 333).
3. Pursuant to 29 CFR 1926.3, it is a condition of this Agreement that
the Secretary of Labor or authorized representative thereof, shall have
right of entry to any site of contract performance to inspect or investigate
the matter of compliance with the construction safety and health
standards and to carry out the duties of the Secretary under Section 107
of the Contract Work Hours and Safety Standards Act (40 U.S.C. 333).
IX. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS
In order to assure high quality and durable construction in conformity
with approved plans and specifications and a high degree of reliability on
statements and representations made by engineers, contractors, suppli-
ers, and workers on Federal -aid highway projects, it is essential that at
persons concemed with the project perform their functions as carefully,
thoroughly, and honestly as possible. Willful falsification, distortion, or
misrepresentation with respect to any facts related to the project is a
violation of Federal law. To prevent any misunderstanding regarding the
seriousness of these and similar acts, the following notice shall be
posted on each Federal -aid highway project (23 CFR 635) in one or
more places where it is readily available to all persons concemed with
the project:
NOTICE TO ALL PERSONNEL ENGAGED ON FEDERAL -AID
HIGHWAY PROJECTS
18 U.S.C. 1020 reads as follows:
"Whoever, being an officer, agent, or employee of the United States,
or of any State or Territory, or whoever, whether a person, association,
firm, or corporation, 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 1, 1916, (39 Stat. 355), as amended and supplemented;
Shall be fined not more that $10,000 or imprisoned not more than 5
years or both."
X. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL
WATER POLLUTION CONTROL ACT
(Applicable to all Federal -aid construction contracts and to all related
subcontracts of $100,000 or more.)
By submission of this bid or the execution of this Agreement, or
subcontract, as appropriate, the bidder, Federal -aid construction
contractor, or subcontractor, as appropriate, will be deemed to have
stipulated as follows:
1. That any facility that is or will be utilized in the performance of this
Agreement, unless such contract is exempt under the Clean Air Act, as
amended (42 U.S.C. 1857 et se_c., as amended by Pub.L. 91-604), and
under the Federal Water Pollution Control Act, as amended (33 U.S.C.
1251 et seq., as amended by Pub.L. 92-500), Executive Order 11738,
and regulations in implementation thereof (40 CFR 15) is not listed, on
the date of contract award, on the U.S. Environmental Protection
Agency (EPA) List of Violating Facilities pursuant to 40 CFR 15.20.
2. That the firm agrees to comply and remain in compliance with all the
requirements of Section 114 of the Clean Air Act and Section 308 of the
Federal Water Pollution Control Act and all regulations and guidelines
listed thereunder.
3. That the firm shall promptly notify the SHA of the receipt of any
communication from the Director, Office of Federal Activities, EPA,
indicating that a facility that is or will be utilized for the contract is under
consideration to be listed on the EPA List of Violating Facilities.
4. That the firm agrees to include or cause to be included the
requirements of paragraph 1 through 4 of this Section X in every
nonexempt subcontract, and further agrees to take such action as the
government may direct as a means of enforcing such requirements.
XI. CERTIFICATION REGARDING DEBARMENT, SUSPENSION,
INELIGIBILITY AND VOLUNTARY EXCLUSION
1. Instructions for Certification - Primary Covered Transactions:
(Applicable to all Federal -aid contracts -49 CFR 29)
a. By signing and submitting this proposal, the prospective
primary participant is providing the certification set out below.
b. The inability of a person to provide the certification set out
below will not necessarily result in denial of participation in this covered
transaction. The prospective participant shall submit an 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 primary participant to fumish a certification or
an explanation shall disqualify such a person from participation in this
transaction.
c. The certification in this clause is a material representation of
fact upon which reliance was placed when the department or agency
determined to enter into this transaction. If it is later determined that the
prospective primary participant knowingly rendered an erroneous
certification, in addition to other remedies available to the Federal
Government, the department or agency may terminate this transaction
for cause of default.
d. The prospective primary participant shall provide immediate
written notice to the department or agency to whom this proposal is
submitted if any time the prospective primary participant learns that its
certification was erroneous when submitted or has become erroneous
by reason of changed circumstances.
e. The terms "covered transaction," "debarred," "suspended,"
"ineligible," "lower tier covered transaction," "participant," "person,"
"primary covered transaction," "principal," "proposal," and "voluntarily
excluded," as used in this clause, have the meanings set out in the
Definitions and Coverage sections of rules implementing Executive
Order 12549. You may contact the department or agency to which this
proposal is submitted for assistance in obtaining a copy of those
regulations.
f. The prospective primary participant agrees by submitting this
proposal that, should the proposed covered transaction be entered into,
it shall not knowingly enter into any lower tier covered transaction with a
person who is debarred, suspended, declared ineligible, or voluntarily
excluded from participation in this covered transaction, unless
authorized by the department or agency entering into this transaction.
g. The prospective primary participant further agrees by
submitting this proposal that it will include the clause titled "Certification
Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion -
Lower Tier Covered Transaction," provided by the department or agency
Page 6 of 8
REQUIRED BY 23 CFR 633.102 --
entering into this covered transaction, without modification, in all lower
tier covered transactions and in all solicitations for lower tier covered
transactions.
h. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that is not debarred, suspended, ineligible, or voluntarily
excluded from the covered transaction, unless it knows that the
certification is erroneous. A participant may decide the method and
frequency by which it determines the eligibility of its principals. Each
participant may, but is not required to, check the non -procurement
portion of the "Lists of Parties Excluded From Federal Procurement or
Non -procurement Programs" (Non -procurement List) which is compiled
by the General Services Administration.
I. Nothing contained in the foregoing shall be construed to require
establishment of a system of records in order to render in good faith the
certification required by this clause. The knowledge and information of
participant is not required to exceed that which is normally possessed by
a prudent person in the ordinary course of business dealings.
j. Except for transactions authorized under paragraph f of these
instructions, if a participant in a covered transaction knowingly enters
into a lower tier covered transaction with a person who is suspended,
debarred, ineligible, or voluntarily excluded from participation in this
transaction, in addition to other remedies available to the Federal
Government, the department or agency may terminate this transaction
for cause or default.
Certification Regarding Debarment, Suspension, Ineligibility and
Voluntary Exclusion --Primary Covered Transactions
1. The prospective primary participant certifies to the best of its
knowledge and belief, that it and its principals:
a. Are not presently debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded from covered
transactions by any Federal department or agency;
b. Have not within a 3 -year period preceding this proposal been
convicted of or had a civil judgment rendered against them for
commission of fraud or a criminal offense in connection with obtaining,
attempting to obtain, or performing a public (Federal, 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;
c. Are not presently indicted for or otherwise criminally or civilly
charged by a governmental entity (Federal, State or local) with
commission of any of the offenses enumerated in paragraph lb of this
certification; and
d. Have not within a 3 -year period preceding this
application/proposal had one or more public transactions (Federal, State
or local) terminated for cause or default.
2. Where the prospective primary participant is unable to certify to
any of the statements in this certification, such prospective participant
shall attach an explanation to this proposal.
2. Instructions for Certification - Lower Tier Covered Transac-
tions:
(Applicable to all subcontracts, purchase orders and other lower tier
transactions of $25,000 or more - 49 CFR 29)
a. By signing and submitting this proposal, the prospective lower
tier is providing the certification set out below.
b. The certification in this clause is a material representation of
fact upon which reliance was placed when this transaction was entered
into. If it is later determined that the prospective lower tier participant
knowingly rendered an erroneous certification, in addition to other
remedies available to the Federal Government, the department, or
agency with which this transaction originated may pursue available
remedies, including suspension 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.
d. The terms "covered transaction," "debarred," "suspended,"
"ineligible," "primary covered transaction," "participant," "person,"
"principal," "proposal," and "voluntarily excluded," as used in this clause,
have the meanings set out in the Definitions and Coverage sections of
rules implementing Executive Order 12549, You may contact the person
to which this proposal is submitted for assistance in obtaining a copy of
those regulations.
e. The prospective lower tier participant agrees by submitting this
proposal that, should the proposed covered transaction be entered into,
it shall not knowingly enter into any 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.
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.
g. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that is not debarred, suspended, ineligible, or voluntarily
excluded from the covered transaction, unless it knows that the
certification is erroneous. A participant may decide the method and
frequency by which it determines the eligibility of its principals. Each
participant may, but is not required to, check the Non -procurement List.
h. Nothing contained in the foregoing shall be construed to
require establishment of a system of records in order to render in good
faith the certification required by this clause. The knowledge and
information of participant is not required to exceed that which is normally
possessed by a prudent person in the ordinary course of business
dealings.
I. Except for transactions authorized under paragraph 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 excluded from participation in this
transaction, in addition to other remedies available to the Federal
Government, the department or agency with which this transaction
originated may pursue available remedies, including suspension and/or
debarment.
Certification Regarding Debarment, Suspension, Ineligibility and
Voluntary Exclusion —Lower Tier Covered Transactions:
1. The prospective lower tier participant certifies, by submission of
this proposal, that neither it nor its principals is presently debarred,
suspended, proposed for debarment, declared ineligible, or voluntarily
excluded from participation in this transaction by any Federal
department or agency.
2. Where the prospective lower tier participant is unable to certify to
any of the statements in this certification, such prospective participant
shall attach an explanation to this proposal.
XII. CERTIFICATION REGARDING USE OF CONTRACT FUNDS OR
LOBBYING
(Applicable to all Federal -aid construction contracts and to all related
subcontracts which exceed $100,000 - 49 CFR 20)
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
Page 7 of 8
REQUIRED BY 23 CFR 633.102 --
any Federal contract, the making of any Federal grant, the making of
any Federal loan, the entering into of any cooperative agreement, and
the extension, continuation, renewal, amendment, or modification of any
Federal contract, grant, loan, or cooperative agreement.
b. If any funds other than Federal appropriated funds have been
paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any Federal agency, a Member of
Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with this Federal contract, grant,
loan, or cooperative agreement, the undersigned shall complete and
submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in
accordance with its instructions.
2 This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into.
2. Submission of this certification is a prerequisite for making or entering
into this transaction imposed by 31 U.S.C. 1352. Any person who fails to
file the required certification shall be subject to a civil penalty of not less
than $10,000 and not more than $100,000 for each such failure.
3. The prospective participant also agrees by submitting his or her bid or
proposal that he or she 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
Page 8 of 8
REQUIRED BY 23 CFR 633.102 --
37. EXHIBIT J - FEDERAL REQUIREMENTS
Federal laws and regulations that may be applicable to the Work include:
A. Uniform Administrative Requirements for Agreements and Cooperative Agreements to
State and Local Governments (Common Rule)
The "Uniform Administrative Requirements for Agreements and Cooperative Agreements to
State and Local Governments (Common Rule), at 49 Code of Federal Regulations, Part 18,
except to the extent that other applicable federal requirements (including the provisions of 23
CFR Parts 172 or 633 or 635) are more specific than provisions of Part 18 and therefore
supersede such Part 18 provisions. The requirements of 49 CFR 18 include, without limitation:
i. the Local Agency/Contractor shall follow applicable procurement procedures, as required by
section 18.36(d);
ii. the Local Agency/Contractor shall request and obtain prior CDOT approval of changes to
any subcontracts in the manner, and to the extent required by, applicable provisions of
section 18.30;
iii. the Local Agency/Contractor shall comply with section 18.37 concerning any sub -
Agreements;
iv. to expedite any CDOT approval, the Local Agency/Contractor's attorney, or other
authorized representative, shall also submit a letter to CDOT certifying Local
Agency/Contractor compliance with section 18.30 change order procedures, and with
18.36(d) procurement procedures, and with 18.37 sub -Agreement procedures, as
applicable;
v. the Local Agency/Contractor shall incorporate the specific contract provisions described in
18.360) (which are also deemed incorporated herein) into any subcontract(s) for such
services as terms and conditions of those subcontracts.
B. Executive Order 11246
Executive Order 11246 of September 24, 1965 entitled "Equal Employment Opportunity," as
amended by Executive Order 11375 of October 13, 1967 and as supplemented in Department
of Labor regulations (41 CFR Chapter 60) (All construction contracts awarded in excess of
$10,000 by the Local Agencys and their contractors or sub -the Local Agencys).
C. Copeland "Anti -Kickback" Act
The Copeland "Anti -Kickback" Act (18 U.S.C. 874) as supplemented in Department of Labor
regulations (29 CFR Part 3) (All contracts and sub -Agreements for construction or repair).
D. Davis -Bacon Act
The Davis -Bacon Act (40 U.S.C. 276a to a-7) as supplemented by Department of Labor
regulations (29 CFR Part 5) (Construction contracts in excess of $2,000 awarded by the Local
Agencys and sub -the Local Agencys when required by Federal Agreement program legislation.
This act requires that all laborers and mechanics employed by contractors or sub -contractors to
work on construction projects financed by federal assistance must be paid wages not less than
those established for the locality of the project by the Secretary of Labor).
E. Contract Work Hours and Safety Standards Act
Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-
330) as supplemented by Department of Labor regulations (29 CFR Part 5). (Construction
contracts awarded by the Local Agencys and sub -the Local Agencys in excess of $2,000, and in
excess of $2,500 for other contracts which involve the employment of mechanics or laborers).
F. Clear Air Act
Standards, orders, or requirements issued under section 306 of the Clear Air Act (42 U.S.C.
1857(h), section 508 of the Clean Water Act (33 U.S.C. 1368). Executive Order 11738, and
Environmental Protection Agency regulations (40 CFR Part 15) (contracts, subcontracts, and
sub -Agreements of amounts in excess of $100,000).
G. Energy Policy and Conservation Act
Page 1 of 3
Mandatory standards and policies relating to energy efficiency which are contained in the state
energy conservation plan issued in compliance with the Energy Policy and Conservation Act
(Pub. L. 94-163).
H. OMB Circulars
Office of Management and Budget Circulars A-87, A-21 or A-122, and A-102 or A-110,
whichever is applicable.
I. Hatch Act
The Hatch Act (5 USC 1501-1508) and Public Law 95-454 Section 4728. These statutes state
that federal funds cannot be used for partisan political purposes of any kind by any person or
organization involved in the administration of federally -assisted programs.
J. Nondiscrimination
42 USC 6101 et seq. 42 USC 2000d, 29 USC 794, and implementing regulation, 45 C.F.R. Part
80 et. seq. These acts require that no person shall, on the grounds of race, color, national
origin, age, or handicap, be excluded from participation in or be subjected to discrimination in
any program or activity funded, in whole or part, by federal funds.
K. ADA
The Americans with Disabilities Act (Public Law 101-336; 42 USC 12101, 12102, 12111-12117,
12131-12134, 12141-12150, 12161-12165, 12181-12189, 12201-12213 47 USC 225 and 47
USC 611.
L. Uniform Relocation Assistance and Real Property Acquisition Policies Act
The Uniform Relocation Assistance and Real Property Acquisition Policies Act, as amended
(Public Law 91-646, as amended and Public Law 100-17, 101 Stat. 246-256). (If the contractor
is acquiring real property and displacing households or businesses in the performance of the
Agreement).
M. Drug -Free Workplace Act
The Drug -Free Workplace Act (Public Law 100-690 Title V, subtitle D, 41 USC 701 et seq.).
N. 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.
0.23 C.F.R. Part 172
23 C.F.R. Part 172, concerning "Administration of Engineering and Design Related Contracts".
P. 23 C.F.R Part 633
23 C.F.R Part 633, concerning "Required Contract Provisions for Federal -Aid Construction
Contracts".
Q. 23 C.F.R. Part 635
23 C.F.R. Part 635, concerning "Construction and Maintenance Provisions".
R. Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973
Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973. The
requirements for which are shown in the Nondiscrimination Provisions, which are attached
hereto and made a part hereof.
S. Nondiscrimination Provisions:
S. Nondiscrimination Provisions:
In compliance with Title VI of the Civil Rights Act of 1964 and with Section 162(a) of the Federal
Aid Highway Act of 1973, the Contractor, for itself, its assignees and successors in interest,
agree as follows:
i. Compliance with Regulations
The Contractor will comply with the Regulations of the Department of Transportation relative
to nondiscrimination in Federally assisted programs of the Department of Transportation
(Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the "Regulations"),
which are herein incorporated by reference and made a part of this Agreement.
Page 2 of 3
ii. Nondiscrimination
The Contractor, with regard to the work performed by it after award and prior to completion of
the contract work, will not discriminate on the ground of race, color, sex, mental or physical
handicap or national origin in the selection and retention of Subcontractors, including
procurement of materials and leases of equipment. The Contractor will not participate either
directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations,
including employment practices when the contract covers a program set forth in Appendix C
of the Regulations.
iii. Solicitations for Subcontracts, Including Procurement of Materials and Equipment
In all solicitations either by competitive bidding or negotiation made by the Contractor for
work to be performed under a subcontract, including procurement of materials or equipment,
each potential Subcontractor or supplier shall be notified by the Contractor of the
Contractor's obligations under this Agreement and the Regulations relative to
nondiscrimination on the ground of race, color, sex, mental or physical handicap or national
origin.
iv. Information and Reports
The Contractor will provide all information and reports required by the Regulations, or orders
and instructions issued pursuant thereto and will permit access to its books, records,
accounts, other sources of information and its facilities as may be determined by the State or
the FHWA to be pertinent to ascertain compliance with such Regulations, orders and
instructions. Where any information required of the Contractor is in the exclusive possession
of another who fails or refuses to furnish this information, the Contractor shall so certify to the
State, or the FHWA as appropriate and shall set forth' what efforts have been made to obtain
the information.
v. Sanctions for Noncompliance.
In the event of the Contractor's noncompliance with the nondiscrimination provisions of this
Agreement, the State shall impose such contract sanctions as it or the FHWA may determine
to be appropriate, including, but not limited to: a. Withholding of payments to the Contractor
under the contract until the Contractor complies, and/orb. Cancellation, termination or
suspension of the contract, in whole or in part.
T. Incorporation of Provisions§22
The Contractor will include the provisions of paragraphs A through F in every subcontract,
including procurement of materials and leases of equipment, unless exempt by the Regulations,
orders, or instructions issued pursuant thereto. The Contractor will take such action with respect
to any subcontract or procurement as the State or the FHWA may direct as a means of
enforcing such provisions including sanctions for noncompliance; provided, however, that, in the
event the Contractor becomes involved in, or is threatened with, litigation with a Subcontractor
or supplier as a result of such direction, the Contractor may request the State to enter into such
litigation to protect the interest of the State and in addition, the Contractor may request the
FHWA to enter into such litigation to protect the interests of the United States.
Page 3 of 3
MEMORANDUM FOR RECORD
DEPARTMENT OF TRANSPORTATION
Contracts and Market Analysis Branch
4201 East Arkansas Avenue, 4th Floor
Denver, Colorado 80222
Telephone: (303) 757-9351
December 29, 2009
Dear Contractor,
wan -
rani.
DEPARTMENT OF TRANSPORTATION
Enclosed please find your fully approved contractual document with the Colorado Department of Transportation.
Please keep these original documents for your records.
If you have any questions or require further information, please feel free to contact me.
Sincerely,
A
Brian Hancock
Contracts Officer
CDOT — Agreements HQ
Phone: (303)757-9351
E-mail : Brian.Hancockra),dot.state.co.us
RECEIVED
JAN - 6 2010
Mild Cosh hit Works tisparrment
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