HomeMy WebLinkAbout940761.tiff RESOLUTION
RE: APPROVE CONTRACT FOR A COMMUNITY DEVELOPMENT BLOCK GRANT FOR
INFRASTRUCTURE IMPROVEMENTS IN SUPPORT OF ROCKY MOUNTAIN PRODUCE WITH
COLORADO DEPARTMENT OF LOCAL AFFAIRS AND AUTHORIZE CHAIRMAN 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 a Contract for a Community
Development Block Grant for infrastructure improvements in support of Rocky
Mountain Produce between the Colorado Department of Local Affairs and the County
of Weld, State of Colorado, by and through the Board of County Commissioners of
Weld County, with terms and conditions being as stated in said contract, and
WHEREAS, after review, the Board deems it advisable to approve said
contract, 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 Contract for a Community Development Block Grant for
infrastructure improvements in support of Rocky Mountain Produce between the
Colorado Department of Local Affairs and the County of Weld, State of Colorado,
by and through the Board of County Commissioners of Weld County, be, and hereby
is, approved.
BE IT FURTHER RESOLVED by the Board that the Chairman be, and hereby is,
authorized to sign said contract.
The above and foregoing Resolution was, on motion duly made and seconded,
adopted by the following vote on the 8th day of August, A.D. , 1994.
J/ � I //A'il BOARD OF COUNTY COMMISSIONERS
ATTEST: /��a% WELD COUNTY, COLORADO ,
Weld County Clerk to the Board ti )g )`;) ti').Z2J
• W. WebsteV, C air n
4,_,./.44,,,:_,_BY:
De ut Clerk to te B rd Dale , . Hall, em
Deputy /,c! fLr�o �r-
APP D, AS TO FORM: /740-7.-',.--- (- x
/Georg. Baxter
ounty Att rney �'�--^�-'�( onstance L. Harbert
EXCUSED
Barbara J. Kirkmeyer
940761
CJ c o /F
SS
COLORADO
August 2, 1994
The Honorable William Webster
Chairman, Weld County Commissioners
915 10th Street
Greeley, Colorado 80631
RE: Weld County Infrastructure Contract in support of Rocky Mountain Produce
Office of LLC/No. 94-967
Business Development
1625 Broadway,Suite 1710 Dear Chairman Webster:
Denver,Colorado 80202
(303)892-3840 It is my pleasure to inform you that the Financial Review Committee ("FRC') has
(303)892-3848 FAX conditionally approved $99,000 for a Community Development Block Grant ("CDBG")
Roy Romer to be utilized for infrastructure improvements in support of Rocky Mountain Produce
Governor LLC in Weld County. This approval is conditioned upon the U.S. Department of
Housing and Urban Development's normal program review of state funded projects.
Enclosed is the Weld County Contract for your review. Please sign all four contracts and
have the contracts attested by the Corporate Secretary or the equivalent person to that
position
Please return all four contracts with original signatures to me so that I can forward them
for processing at the Department of Local Affairs (DOLA). Please do not date the
contract.
No expenses incurred before the contract is fully executed by all parties will be
reimbursed by the state. As you may also know, federal regulations prohibit local
grantees from obligating CDBG funds or incurring costs for project activities until a
formal release of funds process has been properly followed by the grantee and approved
by the state. This release of funds process involves a thorough review of the project's
possible environmental impact and compliance with other federal regulations.
We would like to thank Donald D. Warden and Cathy Schulte for their responsive and
professional packaging of this application. Please call me at 892-3840 if you have any
questions or concerns. We look forward to working with you and the contract
administrator for this project.
940761
The Honorable William Webster
August 2, 1994
Page 2 of 2
Sin ely, /Ay
G
aime G. Gomez, Manager
v inane and Job Training Programs
Enclosures
(4 original contracts)
cc Senator Tom Norton
Senator Don Ament
Senator Jim Roberts
Senator Bob Schaffer
Representative Bill Jerke
Representative David T. Owen
Representative Pat Sullivan
Representative Faye Fleming
Representative William G. Kaufman
Representative Peggy Reeves
Representative Bernhard Strom
Donald D. Warden
William J. Argo
Cathy Schulte
Jodi Hartmann
Bill Timmermeyer, DOLA
Bonnie Kugler, DOLA
Mary Cornish, DOLA
File
940761
DEPARTMENT OR AGENCY NUMBER
NAA
Form 6-AC-021(R 5/85) CONTRACT ROUTING NUMBER
�r S-O9
CDBG 94-967 GRANT BUDGET LINE
O41(
CONTRACT
THIS CONTRACT, made this c day of ,Lc 19 , by and
between the State of Colorado for the use and benefit of the artment of Local Affairs, 1313
Sherman Street, Denver, Colorado 80203, hereinafter referred to as the State, and Weld County,
hereinafter referred to as the Contractor.
WHEREAS, 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 in Fund Number 1 bU , Appropriation Code I25 , Org. No. {DC.0
, Contract Encumbrance Number CRS'3GC,-1 ; and
WHEREAS,required approval,clearance and coordination has been accomplished from and
with appropriate agencies; and
WHEREAS, the United States Government, through the Housing and Community
Development Act of 1974 ("the Act"),Pub.L.No.93-383,as amended,has established a Community
Development Block Grant("CDBG")program and has allowed each state to elect to administer such
federal funds for its nonentitlement areas,subject to certain conditions,including a requirement that
the state's program give maximum feasible priority to activities which will benefit low- and
moderate-income families or aid in the prevention or elimination of slums or blight; the state's
program may also include activities designed to meet other community development needs having
a particular urgency because existing conditions pose a serious and immediate threat to the health
or welfare of the community where other financial resources are not available to meet such needs.
Additionally, the state's program is subject to a federal requirement that not less than seventy
percent (70%) of the aggregate amount of CDBG funds received by the state shall be used for the
support of activities that benefit persons of low- and moderate-income; and
WHEREAS, the State of Colorado has elected to administer such federal funds for its
nonentitlement areas through the Colorado Department of Local Affairs ("Department"), Division
of Local Government, and Division of Housing, pursuant to C.R.S. 1973, 24-32-106(1) (d),
24-32-304(2) (j) and 24-32-705(1) (i); and
WHEREAS,the Department has received applications from political subdivisions in Colorado
for allocations from the federal CDBG funds available to Colorado; and
WHEREAS, the Contractor is one of the eligible political subdivisions to receive CDBG
funds; and
Page 1 of 18 Pages
f1D()/ -
WHEREAS, the Department has approved the proposed Project of the Contractor;
NOW THEREFORE it is hereby agreed that:
1. Scope of Services. In consideration for the monies to be received from the State,the
Contractor shall do, perform,and carry out, in a satisfactory and proper manner, as determined by
the State, all work elements as indicated in the "Scope of Service," set forth in Exhibit A, which is
attached hereto and is incorporated herein by reference, and is hereinafter referred to as the
"Project." Work performed prior to the execution of this Contract shall not be considered part of
this Project.
2. Responsible Administrator.The performance of the services required hereunder shall
be under the direct supervision of Donald D.Warden, an employee or agent of Contractor,who is
hereby designated as the administrator-in-charge of this Project. At any time the
administrator-in-charge is not assigned to this Project, all work shall be suspended until the
Contractor assigns a mutually acceptable replacement administrator-in-charge and the State receives
notification of such replacement assignment.
3. Time of Performance. This Contract shall become effective upon proper execution
by the State Controller of this Contract. The Project contemplated herein shall commence as soon
as practicable after the execution of this Contract and shall be undertaken and performed in the
sequence set forth in the attached Scope of Services. The Contractor agrees that time is of the
essence in the performance of its obligations under this Contract,and that completion of the Project
shall occur no later than the termination date set forth in the Scope of Services.
4. Eligibility and National Objectives. All project activities shall be eligible under
Section 105 of the Act, as amended, and all related regulations and requirements. Furthermore,
project activities shall meet the following indicated(with an "X") broad national objective(s), as set
forth in Section 104(b)(3) of the Act, as amended, and all related regulations and requirements:
X Benefit persons of low and moderate income;
Prevent or eliminate slums or blight;
Meet other community development needs having a particular urgency because
existing conditions pose a serious and immediate threat to the health or welfare of
the community where other financial resources are not available to meet such needs.
5. Obligation, Expenditure and Disbursement of Funds.
a) Prior Expenses. Expenses incurred by the Contractor in association with said
Project prior to execution of this Contract are not eligible CDBG expenditures and shall not be
reimbursed by the State.
b) Environmental Review Procedures. Funds shall not be obligated or utilized
for any activities requiring a release of funds by the State under the Environmental Review
Procedures for the CDBG program at 24 CFR Part 58 until such release is issued in writing.
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940761
Administrative costs, reasonable engineering and design costs, and costs of other exempt activities
identified in 24 CFR 58.34 (a)(1) through (8) do not require a release of funds by the State. For
categorically excluded activities listed in 58.35 (a) determined to be exempt because there are no
circumstances which require compliance with any other Federal laws and authorities cited at 58.5,
the Contractor must make and document such a determination of exemption prior to incurring costs
for such activities.
c) Community Development Plan Requirement. Prior to receiving disbursements
of CDBG funds from the State,the Contractor shall identify its community development and housing
needs,including the needs of low-and moderate-income persons,and the activities to be undertaken
to meet such needs.
6. Definition of Low- and Moderate-Income Persons. Low-income and
moderate-income persons are defined, for the purposes of this contract, as those persons who are
members of low-income and moderate-income families as set forth in Exhibit B,which is attached
hereto and is incorporated herein by reference, or as subsequently promulgated in writing by the
State.
7. Citizen Participation. The Contractor shall provide citizens with reasonable notice
of, and opportunity to comment on, any substantial change proposed to be made in the use of
CDBG funds from one eligible activity to another by following the same citizen participation
procedures required for the preparation and submission of its CDBG application to the State. The
Contractor shall also comply with the procedure set forth herein regarding the modification and
amendment of this Contract.
Additionally,the Contractor shall have and follow a Citizen Participation Plan which includes
the six elements specified in Section 104(a)(3)the Act. The Citizen Participation Plan must include
a provision for at least one public hearing during the course of the Project to allow citizens to review
and comment on the Contractor's performance in carrying out the Project.
8. Residential Antidisplacement and Relocation Assistance Plan. The Contractor shall
follow a residential antidisplacement and relocation assistance plan which, should displacement
occur, provide that:
a) governmental agencies or private developers shall provide within the same
community comparable replacement dwellings for the same number of occupants as could have been
housed in the occupied and vacant occupiable low and moderate income dwelling units demolished
or converted to a use other than for housing for low and moderate income persons,and provide that
such replacement housing may include existing housing assisted with project based assistance
provided under Section 8 of the United States Housing Act of 1939;
b) such comparable replacement dwellings shall be designed to remain affordable
to persons of low and moderate income for ten (10) years from the time of initial occupancy;
c) relocation benefits shall be provided for all low or moderate income persons
who occupied housing demolished or converted to a use other than for low or moderate income
housing, including reimbursement for actual and reasonable moving expenses, security deposits,
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940761
credit checks,and other moving-related expenses,including any interim living costs; and,in the case
of displaced persons of low and moderate income, provide either:
i) compensation sufficient to ensure that, for a 5-year period, the
displaced families shall not bear, after relocation, a ratio of shelter
costs to income that exceeds 30 percent; or
ii) if elected by a family, a lump-sum payment equal to the capitalized
value of the benefits available under subclause (i) to permit the
household to secure participation in a housing cooperative or mutual
housing association;
d) Persons displaced shall be relocated into comparable replacement housing that
is:
i) decent, safe, and sanitary;
ii) adequate in size to accommodate the occupants;
iii) functional equivalent; and,
iv) in an area not subject to unreasonably adverse environmental
conditions.
Persons displaced shall have the right to elect,as an alternative to the benefits under this paragraph
to receive benefits under the Uniform Relocation Assistance and Real Property Acquisition Policies
Act of 1970, as amended, if such persons determine that it is in their best interest to do so; and,
where a claim for assistance under subparagraph d) is denied by the Contractor,the claimant may
appeal to the State, and that the decision of the State shall be final unless a court determines the
decision was arbitrary and capricious.
The Contractor shall follow the Residential Antidisplacement and Relocation Assistance Plan except
that paragraphs a) and b) shall not apply in an case in which the Secretary of the U.S. Department
of Housing and Urban Development finds, on the basis of objective data, that there is available in
the area an adequate supply of habitable affordable housing for low and moderate income persons.
A determination under this paragraph is final and nonreviewable.
9. Affirmatively FurtheringFair Housing. The Contractor shall affirmatively further fair
housing in addition to conducting and administering its Project in conformity with the equal
opportunity requirements of Title VI of the Civil Rights Act of 1964 and the Fair Housing Act, as
required herein.
10. Recovery of Capital Costs of Public Improvements. The Contractor shall not attempt
to recover any capital costs of public improvements assisted in whole or part with CDBG funds by
assessing any amount against properties owned and occupied by persons of low and moderate
income, including any fee charged or assessment made as a condition of obtaining access to such
public improvements, unless:
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940761
a) CDBG funds are used to pay the proportion of such fee or assessment that
relates to the capital costs of such public improvements that are financed from revenue sources other
than the CDBG program, or
b) for the purposes of assessing any amount against properties owned and
occupied by persons of moderate income who are not persons of low income,it certifies that it lacks
sufficient CDBG funds to comply with the requirements of subparagraph a) hereinabove.
11. Compensation and Method of Payment. The State agrees to pay to the Contractor,
in consideration for the work and services to be performed, a total amount not to exceed Ninety-
Nine Thousand and No/100 Dollars ($99,000). The method and time of payment shall be made in
accordance with the "Payment Method" set forth herein.
12. Financial Management. At all times from the effective date of this Contract until
completion of this Contract,the Contractor shall comply with the administrative requirements,cost
principles and other requirements set forth in the Financial Management section of the CDBG
Grantee Handbook, hereinafter referred to as the "Financial Management Requirements".
13. Payment Method. Unless otherwise provided in the Scope of Services:
a) the Contractor shall periodically initiate all drawdown requests by submitting
to the Department a written request using the State-provided form,for reimbursement of actual and
proper expenditures of State CDBG funds plus an estimation of funds needed for a reasonable
length of time.
b) The State may withhold any payment if the Contractor has failed to comply
with the Financial Management Requirements,program objectives,contractual terms,or reporting
requirements.
c) The State will withhold payment of the final five (5) percent of the total
contract amount until the Contractor has submitted and the Department has accepted all required
quarterly Financial Status Report and Performance Report information.
14. Audit.
a) Discretionary Audit. The State, through the Executive Director of the
Department, the State Auditor, or any of their duly authorized representatives, including an
independent Certified Public Accountant of the State's choosing, or the federal government or any
of its properly delegated or authorized representatives shall have the right to inspect, examine,and
audit the Contractor's (and any subcontractor's) records, books, accounts and other relevant
documents. Such discretionary audit may be requested at any time and for any reason from the
effective date of this Contract until five (5) years after the date final payment for this Project is
received by the Contractor, provided that the audit is performed during normal business hours.
b) Mandatory Audit. Whether or not the State calls for a discretionary audit
as provided above, the Contractor shall include the Project in an annual audit report as required by
the Colorado Local Government Audit Law,C.R.S. 1973,29-1-601, et s_g and the Single Audit Act
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940761
of 1984, Pub. L. 98-502, and federal and State implementing rules and regulations. Such audit
reports shall be simultaneously submitted to the Department and the State Auditor. Thereafter,the
Contractor shall supply the Department with copies of all correspondence from the State Auditor
related to the relevant audit report. If the audit reveals evidence of non-compliance with applicable
requirements, the Department reserves the right to institute compliance or other appropriate
proceedings notwithstanding any other judicial or administrative actions filed pursuant to C.R.S.
1973, 29-1-607 or 29-1-608.
15. Contractor. An Independent Contractor. Contractor shall be an independent
contractor and shall have no authorization, express or implied, to bind the State to any agreements,
settlements, liability or understanding except as expressly set forth herein.
16. Personnel. The Contractor represents that it has,or will secure at its own expense,
unless otherwise stated in the Scope of Services, all personnel, as employees or agent of the
Contractor,necessary to perform the work and services required to be performed by the Contractor
under this Contract. Such personnel may not be employees of or have any contractual relationship
with the State and no such personnel are eligible for any employee benefits, unemployment
compensation or any other benefits accorded to State employees. Contractor shall pay when due
all required employment taxes and income tax withholding. All of the services required hereunder
will be performed by the Contractor or under its supervision,and all personnel engaged in the work
shall be fully qualified and shall be authorized under State and local law to perform such services.
The Contractor is responsible for providing Workman's Compensation Coverage and Unemployment
Compensation Coverage for all of its employees to the extent required by law,and for providing such
coverage for themselves. In no case is the State responsible for providing Workman's Compensation
Coverage for any employees or subcontractors of Contractor pursuant to this agreement.
17. Contract Suspension. If the Contractor fails to comply with any contractual provision,
the State may, after notice to the Contractor, suspend the contract and withhold further payments
or prohibit the Contractor from incurring additional obligations of contractual funds, pending
corrective action by the Contractor or a decision to terminate in accordance with provisions herein.
The State may determine to allow such necessary and proper costs which the Contractor could not
reasonably avoid during the period of suspension provided such costs were necessary and reasonable
for the conduct of the project.
18. Contract Termination. This contract may be terminated as follows:
a) Termination Due to Loss of Funding. The parties hereto expressly recognize
that the Contractor is to be paid, reimbursed, or otherwise compensated with federal CDBG funds
provided to the State for the purpose of contracting for the services provided for herein or with
program income, and therefore, the Contractor expressly understands and agrees that all its rights,
demands and claims to compensation arising under this Contract are contingent upon receipt of such
funds by the State. In the event that such funds or any part thereof are not received by the State,
the State may immediately terminate or amend this Contract.
b) Termination for Cause. If, through any cause, the Contractor shall fail to
fulfill in a timely and proper manner his obligations under this Contract,or if the Contractor shall
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violate any of the covenants, agreements,or stipulations of this Contract,the State shall thereupon
have the right to terminate this Contract for cause by giving written notice to the Contractor of such
termination and specifying the effective date thereof, at least five (5) days before the effective date
of such termination. In that event, all finished or unfinished documents, data, studies, surveys,
drawings, maps, models, photographs, and reports or other material prepared by the Contractor
under this Contract shall, at the option of the State, become its property, and the Contractor shall
be entitled to receive just and equitable compensation for any satisfactory work completed on such
documents and other materials.
Notwithstanding the above, the Contractor shall not be relieved of liability to the
State for any damages sustained by the State by virtue of any breach of the Contract by the
Contractor, and the State may withhold any payments to the Contractor for the purpose of setoff
until such time as the exact amount of damages due the State from the Contractor is determined.
c) Termination for Convenience. The State may terminate this Contract at any
time the State determines that the purposes of the distribution of State CDBG monies under the
Contract would no longer be served by completion of the Project. The State shall effect such
termination by giving written notice of termination to the Contractor and specifying the effective
date thereof, at least twenty (20) days before the effective date of such termination. In that event,
all finished or unfinished documents and other materials as described in subparagraph b)above shall,
at the option of the State, become its property. If the Contract is terminated by the State as
provided herein, the Contractor will be paid an amount which bears the same ratio to the total
compensation as the services actually performed bear to the total services of the Contractor covered
by this Contract, less payments of compensation previously made: Provided, however, that if less
than sixty percent (60%) of the services covered by this Contract have been performed upon the
effective date of such termination, the Contractor shall be reimbursed (in addition to the above
payment)for that portion of the actual out-of-pocket expenses(not otherwise reimbursed under this
Contract) incurred by the Contractor during the Contract period which are directly attributable to
the uncompleted portion of the services covered by this Contract. If this Contract is terminated due
to the fault of the Contractor, Paragraph 18b hereof relative to termination shall apply.
19. Modification and Amendment.
a) Modification by Operation of Law. This Contract is subject to such
modifications as may be required by changes in federal or state law or regulations. Any such
required modification shall be incorporated into and be part of this Contract as if fully set forth
herein.
b) Programmatic or Budgetary Modifications. Contractor shall follow the
revision procedures set forth in the Financial Management Requirements if programmatic or
budgetary modifications are desired:
i) The contractor must submit a written request to the Department and
obtain prior written approval from the Department under the
following circumstances:
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940761
a. unless otherwise specified in the Scope of Services, when
cumulative budgetary changes exceed five (5) percent of the
total contract amount or Five Thousand Dollars ($5,000),
whichever is less;
b. when any budget transfers to or between administration
budgetary categories are proposed;
c. when the scope, objective or completion date of the Project
changes;
d. when additional or less State funding is needed;
e. when revisions involve the transfer of amounts budgeted for
indirect costs to absorb increases in direct costs; and
1. when revisions pertain to the addition of items requiring
approval in accordance with the provisions of the subsection
of the Financial Management Requirements entitled "Cost
Principles."
ii) Under the following circumstances and in addition to the foregoing
procedure, prior approval for changes must be authorized by the
State in an amendment to this contract properly executed and
approved in accordance with applicable law:
a. when cumulative budgetary changes exceed ten (10) percent
of the total contract amount or Twenty Thousand Dollars
($20,000),whichever is greater;
b. when the scope, objective or completion date of the Project
changes substantially,as determined by the Department; and
c. when any additional State funding is needed.
Under such circumstances, the Department's approval is not binding
until memorialized in the contract amendment.
c) Other Modifications. If either the State or the Contractor desires to modify
the terms of this Contract other than as set forth in subparagraphs a and b above,written notice of
the proposed modification shall be given to the other party. No such modification shall take effect
unless agreed to in writing by both parties in an amendment to this Contract properly executed and
approved in accordance with applicable law.
20. Integration. This Contract,as written,with attachments and references,is intended
as the complete integration of all understanding between the parties at this time and no prior or
contemporaneous addition,deletion or amendment hereto shall have any force or effect whatsoever,
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44n'7R1
unless embodied in a written authorization or contract amendment incorporating such changes,
executed and approved pursuant to applicable law.
21. Reports.
a) Financial Reports. The Contractor shall submit to the Department three (3)
copies of quarterly financial status reports in the manner and method set forth in the Financial
Management Requirements.
b) Performance Reports. The Contractor shall submit to the Department three
(3) copies of quarterly performance reports and of a project completion report in a manner and
method prescribed by the Department.
22. Conflict of Interest.
a) In the Case of Procurement. In the procurement of supplies, equipment,
construction and services by the Contractor and its subcontractors,no employee,officer or agent of
the Contractor or its subcontractors shall participate in the selection or in the award or
administration of a contract if a conflict of interest, real or apparent, would be involved. Such a
conflict would arise when the employee,officer or agent; any member of his immediate family; his
partner; or an organization which employs,or is about to employ,any of the above, has a financial
or other interest in the party or firm selected for award. Officers, employees or agents of the
Contractor and its subcontractors shall neither solicit nor accept gratuities, favors or anything of
monetary value from parties or potential parties to contracts. Unsolicited items provided as gifts
are not prohibited if the intrinsic value of such items is nominal.
b) In all Cases Other Than Procurement. In all cases other than procurement
(including the provision of housing rehabilitation assistance to individuals,the provision of assistance
to businesses, and the acquisition and disposition of real property), no persons described in
subparagraph i) below who exercise or have exercised any functions or responsibilities with respect
to CDBG activities or who are in a position to participate in a decision making process or gain inside
information with regard to such activities,may obtain a personal or financial interest or benefit from
the activity, or have an interest in any contract, subcontract or agreement with respect thereto, or
the proceeds thereunder,either for themselves or those with whom they have family or business ties,
during their tenure or for one year thereafter.
i) Persons Covered. The conflict of interest provisions of this paragraph
b) apply to any person who is an employee,agent,consultant,officer,
or elected official or appointed official of the Contractor or of any
designated public agencies or subcontractors receiving CDBG funds.
ii) Threshold Requirements for Exceptions. Upon the written request
of the Contractor,the State may grant an exception to the provisions
of this subparagraph b) when it determines that such an exception
will serve to further the purposes of the CDBG program and the
effective and efficient administration of the Contractor's Project. An
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940'761
exception may be considered only after the Contractor has provided
the following:
a. A disclosure of the nature of the conflict, accompanied by an
assurance that:
j. there has been or will be a public disclosure of the
conflict and a description of how the public disclosure
was or will be made; and
ii. the affected person has withdrawn from his or her
functions or responsibilities, or the decision making
process with respect to the specific CDBG assisted
activity in question; and
b. An opinion of the Contractor's attorney that the interest for
which the exception is sought would not violate State or local
law; and
c. A written statement signed by the chief elected official of the
Contractor holding the State harmless from all liability in
connection with any exception which may be granted by the
State to the provisions of this subparagraph b);
iii) Factors to be Considered for Exceptions. In determining whether to
grant a requested exception after the Contractor has satisfactorily met
the requirements of subparagraph ii) above, the State shall consider
the cumulative effect of the following factors, where applicable:
a. Whether the exception would provide a significant cost
benefit or an essential degree of expertise to the Project
which would otherwise not be available;
b. Whether an opportunity was provided for open competitive
bidding or negotiation;
c. Whether the person affected is a member of a group or class
of low or moderate income persons intended to be
beneficiaries of the CDBG assisted activity,and the exception
will permit such person to receive generally the same benefits
as are being made available or provided to the group or class;
d. Whether the interest or benefit was present before the
affected person was in a position as described in this
subparagraph b);
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940761
e. Whether undue hardship will result either to the Contractor
or the person affected when weighed against the public
interest served by avoiding the prohibited conflict; and
Any other relevant considerations.
23. Compliance with Applicable Laws. At all times during the performance of this
Contract, the Contractor and any subcontractors shall strictly adhere to all applicable federal and
State laws, orders, and all applicable standards, regulations, interpretations or guidelines issued
pursuant thereto. The applicable federal laws and regulations include:
a) National Environmental Policy Act of 1969 (42 USC 4321 et seq.), as
amended, and the implementing regulations of HUD (24 CFR Part 58) and of the Council on
Environmental Quality (40 CFR Parts 1500 - 1508) providing for establishment of national policy,
goals, and procedures for protecting, restoring and enhancing environmental quality.
b) National Historic Preservation Act of 1966(16 USC 470 et seq.),as amended,
requiring consideration of the effect of a project on any district, site, building, structure or object
that is included in or eligible for inclusion in the National Register of Historic Places.
c) Executive Order 11593, Protection and Enhancement of the Cultural
Environment, May 13, 1971 (36 FR 8921 et seq.) requiring that federally-funded projects contribute
to the preservation and enhancement of sites, structures and objects of historical, architectural or
archaeological significance.
d) The Archaeological and Historical Data Preservation Act of 1974,amending
the Reservoir Salvage Act of 1960 (16 USC 469 et seq.), providing for the preservation of historic
and archaeological data that would be lost due to federally-funded development and construction
activities.
e) Executive Order 11988,Floodplain Management,May 24, 1977(42 FR 26951
et seq.) prohibits undertaking certain activities in flood plains unless it has been determined that
there is no practical alternative, in which case notice of the action must be provided and the action
must be designed or modified to minimize potential damage.
f) Executive Order 11990,Protection of Wetlands, May 24, 1977 (42 FR 26961
et seq.) requiring review of all actions proposed to be located in or appreciably affecting a wetland.
Undertaking or assisting new construction located in wetlands must be avoided unless it is
determined that there is no practical alternative to such construction and that the proposed action
includes all practical measures to minimize potential damage.
g) Safe Drinking Water Act of 1974 (42 USC 201, 300 f et seq., 7401 et seq.),
as amended, prohibiting the commitment of federal financial assistance for any project which the
Environmental Protection Agency determines may contaminate an aquifer which is the sole or
principal drinking water source for an area.
Page 11 of 18 Pages
940761
h) The Endangered Species Act of 1973 (16 USC 1531 et seq.), as amended,
requiring that actions authorized,funded,or carried out by the federal government do not jeopardize
the continued existence of endangered and threatened species or result in the destruction or
modification of the habitat of such species which is determined by the Department of the Interior,
after consultation with the State, to be critical.
i) The Wild and Scenic Rivers Act of 1968 (16 USC 1271 et seq.),as amended,
prohibiting federal assistance in the construction of any water resources project that would have a
direct and adverse affect on any river included in or designated for study or inclusion in the National
Wild and Scenic Rivers System.
j) The Clean Air Act of 1970(42 USC 1857 et seq.),as amended, requiring that
federal assistance will not be given and that license or permit will not be issued to any activity not
conforming to the State implementation plan for national primary and secondary ambient air quality
standards.
k) HUD Environmental Criteria and Standards (24 CFR Part 51) providing
national standards for noise abatement and control,acceptable separation distances from explosive
or fire prone substances and suitable land uses for airport runway clear zones.
I) Uniform Relocation Assistance and Real Property Acquisition Policies Act
of 1970 -- Title III,Real Property Acquisition (Pub. L. 91-646 and implementing regulations at 24
CFR Part 42),providing for uniform and equitable treatment of persons displaced from their homes,
businesses,or farms by federal or federally-assisted programs and establishing uniform and equitable
land acquisition policies for federal assisted programs. Requirements include bona fide land
appraisals as a basis for land acquisition, specific procedures for selecting contract appraisers and
contract negotiations, furnishing to owners of property to be acquired a written summary statement
of the acquisition price offer based on the fair market price,and specified procedures connected with
condemnation.
m) Uniform Relocation Assistance and Real Property Acquisition Policies Act
of 1970, as amended -- Title II, Uniform Relocation Assistance (Pub. L. 91-646 and implementing
regulations at 24 CFR Part 42), providing for fair and equitable treatment of all persons displaced
as a result of any federal or federally-assisted program. Relocation payments and assistance,
last-resort housing replacement by displacing agency, and grievance procedures are covered under
the Uniform Act. Payments and assistance will be made pursuant to state or local law,or the grant
recipient must adopt a written policy available to the public describing the relocation payments and
assistance that will be provided. Moving expenses and up to$22,500 for each qualified homeowner
or up to $5,250 for each tenant are required to be paid.
n) Section 104(d)of the Housing and Community Development Act of 1974(42
USC 5301 as amended and implementing regulations at 24 CFR Part 570), providing for the
replacement of all low/moderate income dwelling units that are demolished or converted to another
use as a direct result of the use of CDBG funds, and which provides for relocation assistance for all
low/moderate income households so displaced.
Page 12 of 18 Pages
940761.
o) Davis-Bacon Fair Labor Standards Act(40 USC 276a-276a-5)requiring that,
on all contracts and subcontracts which exceed S2,000 for federally-assisted construction,alteration
or rehabilitation, laborers and mechanics employed by contractors or subcontractors shall be paid
wages at rates not less than those prevailing on similar construction in the locality as determined by
the Secretary of Labor. (This requirement applies to the rehabilitation of residential property only
if such property is designed for use of eight or more families.)
p) Contract Work Hours and Safety Standards Act of 1962(40 USC 327 et seq.)
requiring that mechanics and laborers employed on federally-assisted contracts which exceed$2,000
be paid wages of not less than one and one-half times their basic wage rates for all hours worked
in excess of forty in a work week.
q) Copeland "Anti-Kickback" Act of 1934 (40 USC 276 (c)) prohibiting and
prescribing penalties for"kickbacks"of wages in federally-financed or assisted construction activities.
r) The Lead-Based Paint Poisoning Prevention Act -- Title IV (42 USC 4831)
prohibiting the use of lead-based paint in residential structures constructed or rehabilitated with
federal assistance, and requiring notification to purchasers and tenants of such housing of the
hazards of lead-based paint and of the symptoms and treatment of lead-based paint poisoning.
s) Section 3 of the Housing and Community Development Act of 1968(12 USC
1701 (u)), as amended,providing that, to the greatest extent feasible,opportunities for training and
employment that arise through HUD-financed projects,will be given to lower-income persons in the
unit of the project area, and that contracts be awarded to businesses located in the project area or
to businesses owned, in substantial part, by residents of the project area.
t) Section 109 of the Housing and Community Development Act of 1974 (42
USC 5309), as amended, providing that no person shall be excluded from participation (including
employment), denied program benefits or subjected to discrimination on the basis of race, color,
national origin or sex under any program or activity funded in whole or in part under Title I
(Community Development) of the Act.
u) Title VI of the Civil Rights Act of 1964 (Pub. L. 88-352; 42 USC 2000 (d))
prohibiting discrimination on the basis of race, color, religion or religious affiliation, or national
origin in any program or activity receiving federal financial assistance.
v) The Fair Housing Act (42 USC 3601-20), as amended, prohibiting housing
discrimination on the basis of race,color,religion,sex, national origin,handicap and familial status.
w) Executive Order 11246 (1965), as amended by Executive Orders 11375,
prohibiting discrimination on the basis of race, color, religion, sex or national origin in any phase
of employment during the performance of federal or federally-assisted contracts in excess of$2,000.
x) Executive Order 11063 (1962), as amended by Executive Order 12259,
requiring equal opportunity in housing by prohibiting discrimination on the basis of race, color,
religion, sex or national origin in the sale or rental of housing built with federal assistance.
Page 13 of 18 Pages
940761
y) Section 504 of the Rehabilitation Act of 1973 (29 USC 793), as amended,
providing that no otherwise qualified individual shall, solely by reason of a handicap, be excluded
from participation (including employment),denied program benefits or subjected to discrimination
under any program or activity receiving federal funds.
z) Age Discrimination Act of 1975, (42 USC 6101), as amended, providing that
no person shall be excluded from participation, denied program benefits or subjected to
discrimination on the basis of age under any program or activity receiving federal funds.
24. Monitoring and Evaluation. The State will monitor and evaluate the Contract with
the Contractor under the CDBG program. The Contract will be monitored for compliance with the
rules, regulations,requirements and guidelines which the State has promulgated or may promulgate
and will be monitored periodically during the operation of the project and upon its completion. The
Contract will also be subject to monitoring and evaluation by the U.S.Department of Housing and
Urban Development. The Contract will be evaluated to gauge its impact upon low- and
moderate-income residents of the community, slums or blighted areas, or other urgent need
conditions and for the effective and efficient utilization of CDBG funds.
25. Severability. To the extent that this Contract may be executed and performance of
the obligations of the parties may be accomplished within the intent of the Contract, the terms of
this Contract are severable,and should any term or provision hereof be declared invalid or become
inoperative for any reason, such invalidity or failure shall not affect the validity of any other term
or provision hereof. The waiver of any breach of a term hereof shall not be construed as waiver of
any other term.
26. Binding on Successors. Except as herein otherwise provided, this agreement shall
inure to the benefit of and be binding upon the parties, or any subcontractors hereto, and their
respective successors and assigns.
27. Subletting,Assignment or Transfer. Neither party nor any subcontractors hereto may
sublet, sell, transfer, assign or otherwise dispose of this Contract or any portion thereof, or of its
rights, title, interest or duties therein, without the prior written consent of the other party. No
subcontract or transfer of Contract shall in any case release the Contractor of liability under this
Contract.
28. Non-Discrimination. The Contractor shall comply with all applicable State and
Federal laws, rules, regulations and Executive Orders of the Governor of Colorado involving non-
discrimination on the basis of race, color, religion, national origin, age, handicap or sex. In
compliance with Paragraph 5 of the Special Provisions section of this contract,Contractor agrees to
consider minorities or minority businesses as employees, specialists, agents, consultants or
subcontractors under this Contract. Contractor may utilize the expertise of the State Minority
Business Office within the Office of the Governor for assistance in complying with the non-
discrimination and affirmative action requirements of this contract and applicable statutes.
29. Excessive Force. In accordance with section 519 of Public Law 101-144, the HUD
Appropriations Act, and Section 906 of Cranston-Gonzalez Affordable Housing Act of 1990, the
Contractor has adopted and is enforcing a policy prohibiting the use of excessive force by law
Page 14 of 18 Pages
9407c1
enforcement agencies within its jurisdiction against any individuals engaged in nonviolent civil rights
demonstrations; and has adopted and is enforcing a policy of enforcing applicable state and local
laws against physically barring entrance to or exit from a facility or location which is the subject of
such non-violent civil rights demonstration within its jurisdiction.
30. Lobbying. The Contractor assures and certifies 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 agency, a Member of Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with the awarding of any federal contract, the making of any
federal grant, the making of any federal loan, the entering into of any cooperative agreement, and
the extension, continuation, renewal, amendment, or modification of any federal contract, grant,
loan, or cooperative agreement.
b) If any funds other than federal appropriated funds have been paid or will be
paid to any person for influencing or attempting to influence an offer or employee of any agency,
a Member of Congress, an officer or employee of Congress, or an employee of a Member of
Congress in connection with this federally funded contract, grant, loan, or cooperative agreement,
it shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in
accordance with its instructions.
c) It shall require that the language of this certification be included in the award
documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose
accordingly.
d) It understands that 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. My 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.
31. Applicant Statement of Assurances and Certifications. The Contractor has previously
signed an"Applicant Statement of Assurances and Certifications"which is hereby incorporated and
made a part of this contract by reference.
32. Survival of Certain Contract Terms. Notwithstanding anything herein to the contrary,
the parties understand and agree that all terms and conditions of this contract and the exhibits and
attachments hereto which may require continued performance or compliance beyond the termination
date of the contract shall survive such termination date and shall be enforceable by the State as
provided herein in the event of such failure to perform or comply by the Contractor or its
subcontractors.
Page 15 of 18 Pages
940761
Pam 6-AC-02a(Rat 1/93)
SPECIAL PROVISIONS
CONTROLLER'S APPROVAL
1. This contract shall not be deemed valid until it shall have been approved by the Controller of the State of Colorado or such
assistant as he may designate. This provision is applicable to any contract involving the payment of money by the State.
FUND AVAILABILITY
2. Financial obligations of the State of Colorado payable after the current fiscal year are contingent upon funds for that
purpose being appropriated,budgeted and otherwise made available.
BOND REQUIREMENT
3. If this contract involves the payment of more than fifty thousand dollars for the construction,erection,repair,maintenance,
or improvement of any building,road,bridge,viaduct,tunnel,excavation or other public work for this State,the contractor shall,before
entering upon the performance of any such work included in this contract,duly execute and deliver to the State official who will sign the
contract,a good and sufficient bond or other acceptable surety to be approved by said official in a penal sum not less than one-half of
the total amount payable by the terms of this contract. Such bond shall be duly executed by a qualified corporate surety conditioned upon
the faithful performance of the contract and in addition,shall provide that if the contractor or his subcontractors fail to duly pay for any
labor,materials,team hire,sustenance,provisions,prevendor or other supplies used or consumed by such contractor or his subcontractor
in performance of the work contracted to be done or fails to pay any person who supplies rental machinery,tools,or equipment in the
prosecution of the work the surety will pay the same in an amount not exceeding the sum specified in the bond,together with interest
at the rate of eight percent per annum. Unless such bond is executed,delivered and filed,no claim in favor of the contractor arising
under such contract shall be audited,allowed or paid. A certified or cashier's check or a bank money order payable to the Treasurer
of the State of Colorado may be accepted in lieu of a bond. This provision is in compliance with CRS 38-26-106.
INDEMNIFICATION
4. To the extent authorized by law,the contractor 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 incurred as a result of any act
or omission by the contractor,or its employees,agents,subcontractors,or assignees pursuant to the terms of this contract.
DISCRIMINATION AND AFFIRMATIVE ACTION
5. The contractor agrees to comply with the letter and spirit of the Colorado Antidiscrimination Act of 1957,as amended,and
other applicable law respecting discrimination and unfair employment practices(CRS 24-34-402),and as required by Executive Order,
Equal Opportunity and Affirmative Action,dated April 16, 1975. Pursuant thereto,the following provisions shall be contained in all State
contracts or sub-contracts
During the performance of this contract,the contractor agrees as follows:
(a) The contractor will not discriminate against any employee or applicant for employment because of race,creed,color,
national origin,sex,marital status,religion,ancestry,mental or physical handicap,or age. The contractor will take affirmative
action to insure that applicants are employed,and that employees are treated during employment,without regard to the above
mentioned characteristics. Such action shall include,but not be limited to the following: employment upgrading,demotion,
or transfer,recruitment or recruitment advertisings;lay-offs or terminations;rates of pay or other forms of compensation;and
selection for training,including apprenticeship. The contractor agrees to post in conspicuous places,available to employees
and applicants for employment, notices to be provided by the contracting officer setting forth provisions of this non-
discrimination clause.
(b) The contractor will,in all solicitations or advertisements for employees placed by or on behalf of the contractor,state that
all qualified applicants will receive consideration for employment without regard to race,creed,color,national origin,sex,
marital status,religion,ancestry,mental or physical handicap,or age.
(c) The contractor will send to each labor union or representative of workers with which he has a collective bargaining
agreement or other contract or understanding,notice to be provided by the contracting officer,advising the labor union or
workers'representative of the contractor's commitment under the Executive Order,Equal Opportunity and Affirmative Action,
dated April 16, 1975,and of the rules,regulations,and relevant Orders of the Governor.
(d) The contractor and labor unions will furnish all information and reports required by Executive Order,Equal Opportunity
and Affirmative Action of April 16,1975,and by the rules,regulations and Orders of the Governor,or pursuant thereto,and
Page 16 of 18 Pages
940761.
will permit access to his books,records,and accounts by the contracting agency and the office of the Governor or his designee
for purposes of investigation to ascertain compliance with such rules,regulations and orders.
(e) A labor organization will not exclude any individual otherwise qualified from full membership rights in such labor
organization, or expel any such individual from membership in such labor organization or discriminate against any of its
members in the full enjoyment of work opportunity because of race,creed,color,sex,national origin,or ancestry.
(I) A labor organization,or the employees or members thereof will not aid,abet,incite,compel or coerce the doing of any
act defined in this contract to be discriminatory or obstruct or prevent any person from complying with the provisions of this
contract or any order issued thereunder,or attempt,either directly or indirectly,to commit any act defined in this contract to
be discriminatory.
(g) In the event of the contractor's non-compliance with the non-discrimination clauses of this contract or with any of such
rules,regulations,or orders,this contract may be cancelled,terminated or suspended in whole or in part and the contractor
may be declared ineligible for further State contracts in accordance with procedures,authorized in Executive Order,Equal
Opportunity and Affirmative Action of April 16, 1975 and the rules, regulations, or orders promulgated in accordance
therewith,and such other sanctions as may be imposed and remedies as may be invoked as provided in Executive Order,Equal
Opportunity and Affirmative Action of April 16,1975,or by rules,regulations,or orders promulgated in accordance therewith,
or as otherwise provided by law.
(h) The contractor will include the provisions of paragraphs(a)through(h)in every sub-contract and subcontractor purchase
order unless exempted by rules,regulations,or orders issued pursuant to Executive Order,Equal Opportunity and Affirmative
Action of April 16,1975,so that such provisions will be binding upon each subcontractor or vendor. The contractor will take
such action with respect to any sub-contracting or purchase order as the contracting agency may direct,as a means of enforcing
such provisions,including sanctions for non-compliance;provided,however,that in the event the contractor becomes involved
in,or is threatened with,litigation,with the subcontractor or vendor as a result of such direction by the contracting agency,
the contractor may request the State of Colorado to enter into such litigation to protect the interest of the State of Colorado.
COLORADO LABOR PREFERENCE
6a. Provisions of CRS 8-17-101&102 for preference of Colorado labor are applicable to this contract if public works within
the State are undertaken hereunder and are financed in whole or in part by State funds.
b. When construction contract for a public project is to be awarded to a bidder,a resident bidder shall be allowed a preference
against a non-resident bidder from a state or foreign country equal to the preference given or required by the state or foreign country
in which the non-resident bidder is a resident. If it is determined by the officer responsible for awarding the bid that compliance with
this subsection .06 may cause denial of federal funds which would otherwise be available or would otherwise be inconsistent with
requirements of federal law,this subsection shall be suspended,but only to the extent necessary to prevent denial of the moneys or to
eliminate the inconsistency with federal requirements(CRS 8-19-101 and 102).
GENERAL
7. The laws of the State of Colorado and rules and regulations issued pursuant thereto shall be applied in the interpretation,
execution and enforcement of this contract. Any provision of this contract whether or not incorporated herein by reference which
provides for arbitration by any extra-judicial body or person or which is otherwise in conflict with said laws,rules,and regulations shall
be considered null and void. Nothing contained in any provision incorporated herein by reference which purports to negate this or any
other special provision in whole or in part shall 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 will not invalidate the remainder of this
contract to the extent that the contract is capable of execution.
8. At all times during the performance of this Contract,the Contractor shall strictly adhere to all applicable federal and state
laws,rules,and regulations that have been or may hereafter be established.
9. The signatories hereto aver that they are familiar with CRS 18-8-301,et.seq.,(Bribery and Corrupt Influences)and CRS
18-8-401,et.seq.,(Abuse of Public Office),and that no violation of such provisions is present.
10. The signatories aver that to their knowledge,no state employee has a personal or beneficial interest whatsoever in the
service or property described herein.
Page 17 of 18 Pages
940761.
IN WITNESS WHEREOF,the parties hereto have executed this Contract on the day first above written.
Contractor.
(Full Legal Name)Weld County STATE OF COLORADO
ROY ROMER,GOVERNOR
P.O.Box 758
Greeley,CO 80632 By:
•5 Executive Dire•o
Position(Title)
Department os Local Affairs
84-6000813 7N,e,
Social Smutty Number or PedeN ID.Number
Its: d144 ?r7 V
(If Corporation:) / / /1 /�i
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Corporate Secrets or uivalent,
Town/City/County Clerk
(ALL A..dmmNORTON APPROVALS:
ATF�MttMENERAL CONTROLLER
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Br LC:�..G%' i By.
ALVIN E. MASSENBURG
Ass;startt Attorney General ,{;, 4{"a F l a n=.
General Legal Services ' - ;,0RD W H ,
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Liht', t
Page 18 of 18 Pages
940761
EXHIBIT A
Scope of Services
940'7st
EXHIBIT A
1. SCOPE OF SERVICES
A. General Provisions. This project consists of providing a Community
Development Block Grant ( "CDBG" ) to the Contractor to assist with public
infrastructure improvements in support of Rocky Mountain Produce LLC and
Colorado Greenhouse LLC (the Firm) , a greenhouse operating with heat
produced by an adjacent power plant. The Firm has committed to expand
its facility in Weld County, Colorado. The purpose of the project is to
encourage economic diversification and job creation which addresses the
CDBG program objective of benefit to low- and moderate-income persons in
Weld County, subject to the following provisions:
B. Specific Provisions. The following specific provisions are hereby made
a part of this Scope of Services.
1 . The CDBG grant amount shall not exceed Ninety-Nine Thousand and
No/100 Dollars ($99,000) .
2 . The CDBG grant shall assist with the following infrastructure
improvements:
a. reconstruction of Weld County Road 16 between U. S. Highway 85
and Weld County Road 31 . A 2" hot-layed asphaltic concrete
wearing course will be applied to improve the surface
condition and right quality of the existing roadway. The
length of the project is 1 . 5 miles . Gravel shoulders will be
re-established by applying additional crushed aggregate; and
b. administrative costs incurred by Weld County.
3 . In the event Contractor needs to hire a subcontractor not employed
by Weld County, Davis-Bacon wages would apply for any services over
$2 , 000 provided by a single contractor. Services provided by
public service, in which a public service company services its own
equipment, shall be exempt from Davis-Bacon wage requirements. Any
contract for work that shall be completed by person(s) other than
forced account labor shall be awarded using a competitive bid
process with the Contractor being obligated to award the bid to the
lowest qualified bidder meeting the Contractor's specifications.
4 . Contractor shall ensure that project plans and specifications are
reviewed and approved by the appropriate regulatory agencies prior
to disbursal of funds to Contractor.
5. Contractor shall maintain written evidence of Contractor's project
leveraging. Such documentation shall be in the amount of Six
Thousand Seven Hundred Eighty-Four and No/100 Dollars ($6 , 784)
utilized toward the infrastructure improvements (and documented by
Page 1 of 5 pages
940761
invoices and corresponding reimbursement checks) specified in
Specific Provision B. 2 .a. of this exhibit.
Land is not being acquired for this project; therefore, acquisition
requirements shall not apply.
6. Contractor shall make quarterly on-site visits to the Firm to as-
sess/monitor the progress toward job creation.
7 . Contractor and Firm shall execute a written agreement ( "Agreement" )
which includes the following:
a. The Firm commits to create a minimum of eleven (11) new, full-
time jobs within one (1) year of the initial disbursement of
CDBG funds. Agreement shall require that at least fifty-one
percent (51%) of the new, full-time jobs created by the Firm
shall be held by low-to-moderate income persons. In the event
more than eleven ( 11) permanent jobs are created, Contractor
shall ensure that at least fifty-one percent ( 51%) of all jobs
created (as a result of CDBG funds) are provided to low and
moderate income persons.
b. The Agreement shall include the following information: i ) a
list (including the type of positions, the number of
positions, and wage scales) of the full-time equivalent
permanent jobs to be created with a breakout of those
positions which are expected to be filled by low- and
moderate-income persons; ii) identification of those positions
that can only be filled by persons with substantial training,
work experience or education beyond high school and a
statement from the Firm as to whether the Firm shall agree to
hire, and train as necessary, low- or moderate-income persons
for these jobs; iii ) a proposed schedule for the creation of
the committed jobs; and iv) provisions requiring written
records to be kept and reports to be made regarding the
documentation of low- and moderate-income benefit and
beneficiaries by race, ethnicity, gender, and handicap status
in the same manner and to the same extent as Department
requires of Contractor.
c. The Firm shall be required in the Agreement to make every
effort to maintain a level of operation that would support
such levels of full employment, hereinafter determined to be
at least eighty-five (85) full-time positions (inclusive of
existing jobs and new jobs required per this Contract) .
d. The Firm shall allow Contractor and CDBG program
representatives to make on-site visits to verify CDBG program
information if reasonable notice has been provided by
Contractor.
Page 2 of 5 pages
9407St
e. The Agreement shall state the Firm expressly acknowledges that
such infrastructure improvements would not have been
undertaken but for the Firm's contractual commitment to
perform all of the Firm's obligations thereunder. The
Agreement shall require a commitment by the Firm to expand its
operations located in Weld County, Colorado, upon timely
completion of regulatory and legal aspects and infrastructure
improvements required by the project but no later than one (1)
year from the initial disbursement of CDBG funds.
f. In the event a majority of the Firm shall be sold or
transferred, the Firm shall notify the Contractor and the
Office of Business Development in writing prior to the sale or
transfer. At that time, the Office of Business Development
shall determine whether the potential owner meets its
criteria; if not, the below-mentioned liquidation damages
shall become due and owing at the time ownership is
transferred. Any approved purchasee or transferee must
expressly assume the Firm's obligations pursuant to the
Agreement with the Contractor.
The Agreement shall additionally require the Firm to repay
Contractor for CDBG funds expended in the event the Company
does not fulfill its responsibilities under the Agreement.
The Firm shall therefore expressly agree that, at the time of
such occurrence, the Firm shall be obligated to pay to the
Contractor as liquidated damages a sum based upon the
percentage of the Firm's performance deficiency multiplied by
the $99,000 of CDBG funds, but shall not exceed $99 ,000 . The
Firm shall expressly agree in Agreement that the above formula
for liquidated damages is a reasonable basis upon which to
estimate the actual damages resulting from the Firm's failure
to perform in accordance with the terms of the contract. If
any other business(es) utilize the CDBG improvements funded
under this Contract, the Agreement may be revised to reflect
the Firm's pro-rata share of liquidation damages provided that
any new business(es) agrees in writing to be responsible for
its pro-rata share.
Any funds from liquidated damages shall be appropriated to the
Contractor to be applied toward other eligible CDBG economic
development efforts as approved by Department. (./ JI
The Agreement must be executed and submitted to the Office of
Business Development prior to distribution of CDBG funds.
8. Contractor shall ensure that any business that utilizes any of the
infrastructure improvements being constructed with funds provided
under this Contract, in whole or in part, executes a written
contract with Contractor committing to provide at least fifty-one
percent (51%) of all of the jobs created/retained as a result of
CDBG funds to low- and moderate-income individuals. This
Page 3 of 5 pages
9407St
requirement applies for a three year period following the
completion of construction of the CDBG activities stated herein.
Contractor shall submit a report in a manner and method prescribed
by the Office of Business Development to the Office of Business
Development on a quarterly basis, no later than the thirtieth
( 30th) day of the month after the end of each calendar quarter of
the contract period and continuing after the contract period for
the timeframe delineated above.
9. Contractor certifies that the project and terms under which
assistance is to be provided are appropriate and necessary due to
insufficient funds in Contractor's operating budget.
10. Contractor shall notify the Office of Business Development in
writing of an event of Firm's non-performance as described in this
Contract herein within ten (10) calendar days of such event.
11 . Contractor shall notify the Office of Business Development in
writing of changes in this project's funding commitments negotiated
by and between the Contractor and other funding sources. The
amount, terms and conditions of this grant are based, in part, on
the participation of public and private financing. Any change in
participation may materially affect the state's ability to
participate as stated herein and shall require state approval .
12 . In the event total project funds are less than $105,784 , funds for
project costs shall be reduced proportionately from all funding
sources .
C. Time of Performance. The project shall commence upon the date of
execution of this Contract. The Contract shall expire within one ( 1)
year of the date of this Contract. Any request(s) for a contract
extension by the Contractor shall be submitted to the Office of Business
Development at least thirty ( 30) days prior to the expiration of the
Contract with a full justification for the extension request.
D. Budget.
Uses: Sources: Amount:
Infrastructure improvements* CDBG $ 90 ,000
CONTRACTOR $ 6,784
Administration CDBG $ 9 ,000
TOTAL $105,784
See Specific Provision B. 2 .a of this exhibit for further definition.
E. Payment Schedule. All payments to the Contractor shall be made in
accordance with provisions set forth in Paragraph 13 within the main
Page 4 of 5 pages
940751.
body of this Contract, except for the requirements that the state
withhold a five percent ( 5%) retention payment which is herein waived.
F. Contract Monitoring. The Office of Business Development or its agent
shall monitor this project at least once during the Contract period and
as needed.
G. Reporting Schedule. The Contractor shall provide quarterly financial
and program reports to the Office of Business Development in accordance
with the provisions set forth in Paragraph 21 within the main body of
this Contract.
H. Contract Requirements. The Contractor shall submit all documentation
required by this Contract, as applicable, to the Office of Business
Development except for the Audits required in Paragraph 14 within the
main body of this Contract.
Page 5 of 5 pages
940751.
EXHIBIT B
Definition of Low and Moderate Income Households and Persons
9409St
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