HomeMy WebLinkAbout2017-43 Amendment to the IGA with CDOT regarding Vail Bridge Road Structure ReplacementRESOLUTION NO. 43
Series of 2017
A RESOLUTION APPROVING AN AMENDMENT TO INTERGOVERNMENTAL AGREEMENT
BETWEEN THE TOWN OF VAIL AND THE COLORADO DEPARTMENT OF TRANSPORTATION
REGARDING VAIL-BRIDGE RD STRUCTURE REPLACEMENT; AND SETTING FORTH DETAILS IN
REGARD THERETO.
WHEREAS, the Town of Vail (the "Town "), in the County of Eagle and State of Colorado is a
home rule municipal corporation duly organized and existing under the laws of the State of Colorado and
the Town Charter (the "Charter "); and
WHEREAS, the members of the Town Council of the Town (the "Council ") have been duly
elected and qualified; and
WHEREAS, the Town and the Colorado Department of Transportation ("CDOT") entered into an
Intergovernmental Agreement on October 20, 2015, routing #15 HA3-75418; and
WHEREAS, the Town and CDOT now wish to amend the existing Intergovernmental Agreement
with updated language required by the Federal Highway Department (FHWA); and
WHEREAS, the Council's approval of Resolution No. 43, Series 2017, is required to enter into an
IGA.
NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF
VAIL, COLORADO THAT:
Section 1. The Council hereby approves the IGA and authorizes the Town Manager to
enter into the IGA with CDOT, in substantially the same form as attached hereto as Exhibit A and in a
form approved by the Town Attorney.
Section 2. This Resolution shall take effect immediately upon its passage.
INTRODUCED, PASSED AND ADOPTED at a regular meetin•4•f - To . ••uncil of the
Town of Vail held this 19th day of December, 2017.
Dave Chapin, Town Mayor
PO #: 471000554
Routing #:15-HA3-ZH-00065-M0005
Original Routing#: 15-HA3-75418
Additional PO Reference#: NA
STATE OF COLORADO AMENDMENT
SIGNATURE AND COVER PAGE
State Agency
Department of Transportation
Amendment Routing Number
15-HA3-ZH-00065-M0005
Local Agency/Region:
TOWN OF VAIL
Original Agreement Routing Number
15-HA3-75418
Amendment # 02
Project #/Subaccount: BRO M306-007 (20095)
Contract Writer: CA
Agreement Maximum
Amount:
Current Encumbrance:
$1,281,000.00
$230,439.00
Amendment Effective Date
Date of Controller Signature
Initial Agreement expiration date
03/08/2020
THE PARTIES HERETO HAVE EXECUTED THIS AMENDMENT
Each person signing this Amendment represents and warrants that he or she is duly authorized to execute this
Amendment and to bind the Party authorizing his or her signature.
LOCAL AGENCY
TOWN OF VAIL
STATE OF COLORADO
John W. Hickenlooper, Governor
Department of Transportation
Shailen P. Bhatt, Executive Director
Signature
Joshua Laipply, P.E., Chief Engineer
Date:
By: (Print Name and Title)
Date:
2nd Local Agency Signature if Needed
Signature
By: (Print Name and Title)
Date:
In accordance with §24-30-202 C.R.S., this Amendment is not valid until signed and dated below by the State
Controller or an authorized delegate.
STATE CONTROLLER
Robert Jaros, CPA, MBA, JD
By:
Department of Transportation
Effective Date:
1
PO #: 471000554
Routing #:15-HA3-ZH-00065-M0005
Original Routing#: 15-HA3-75418
Additional PO Reference#: NA
1) PARTIES
This Amendment (the "Amendment") to the Original Agreement shown on the Signature and Cover Page for
this Amendment (the "Agreement") is entered into by and between the Contractor and the State.
2) TERMINOLOGY
Except as specifically modified by this Amendment, all terms used in this Amendment that are defined in the
Agreement shall be construed and interpreted in accordance with the Agreement.
3) EFFECTIVE DATE AND ENFORCEABILITY
A. Amendment Effective Date
This Amendment shall not be valid or enforceable until the Amendment Effective Date shown on the Signature
and Cover Page for this Amendment. The State shall not be bound by any provision of this Amendment before
that Amendment Effective Date, and shall have no obligation to pay Contractor for any Work performed or
expense incurred under this Amendment either before or after of the Amendment term shown in §3.B of this
Amendment.
B. Amendment Term
The Parties' respective performances under this Amendment and the changes to the Agreement contained herein
shall commence on the Amendment Effective Date shown on the Signature and Cover Page for this Amendment
and shall terminate on the termination of the Agreement.
4) PURPOSE
The Parties entered into the Agreement to disperse Federal funds to the Local Agency pursuant to CDOT's
Stewardship Agreement with the Federal Highway Administration. The Special Highway Committee voted to
pool funds previously awarded for bridge projects Vail -Nugget -A and Vail -Bridge Rd into a single award to
fund the Vail Bridge Rd replacement project.
5) MODIFICATIONS
The Parties now agree to modify the original contract to incorporate the required provisions of the OMB
Uniform Guidance, 2 C.F.R. 200. The following sections of the original agreement are modified: §§2, 3.A,
4, 5, 6, 7, 8.A, 8.B, 8.D, 9.F, 9.G, 10,11,12,13, 15.B.iv, 17.B, 17.C, 19, and 24 (see Attachment A to
this Amendment).
The Parties agree to modify Exhibit C. Exhibit B becomes the Sample Option Letter, which is also
modified in form. Exhibit D becomes the Local Agency Resolution, which is unchanged in
form. Exhibits L and M are added to the agreement (see Exhibit C-2, B-1, Exhibit L and Exhibit
M attached to this Amendment).
6) LIMITS OF EFFECT
This Amendment is incorporated by reference into the Agreement, and the Agreement and all prior amendments
or other modifications to the Agreement, if any, remain in full force and effect except as specifically modified
in this Amendment. Except for the Special Provisions contained in the Agreement, in the event of any conflict,
inconsistency, variance, or contradiction between the provisions of this Amendment and any of the provisions
of the Agreement or any prior modification to the Agreement, the provisions of this Amendment shall in all
respects supersede, govern, and control. The provisions of this Amendment shall only supersede, govern, and
control over the Special Provisions contained in the Agreement to the extent that this Amendment specifically
modifies those Special Provisions.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
2
ATTACHMENT A, Amendment #2, Project BRO M306-007 (20095)
ATTACHMENT A
a. 2 — Effective Date and Notice of Nonliability
Section 2 is deleted in its entirety. It is now titled "Effective Date" and now reads as follows: This
Agreement shall not be valid or enforceable until the Effective Date, and Agreement Funds shall be
expended within the dates shown in Exhibit C for each respective phase ("Phase Performance Period(s)").
The State shall not be bound by any provision of this Agreement before the Effective Date, and shall have
no obligation to pay Local Agency for any Work performed or expense incurred before the Effective Date
or after the Final Phase Performance End Date, as shown in Exhibit C.
b. 3.A — Authority, Appropriation, and Approval
Section 3.A is deleted in its entirety. The title remains the same but now reads as follows:
Authority to enter into this Agreement exists in the law as follows:
i. Federal Authority
Pursuant to Title I, Subtitle A, of the "Fixing America's Surface Transportation Act" (FAST Act)
of 2015, 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 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 43-2-104.5.
c. 4 — Definitions
The following definitions are added alphabetically to §4:
"Business Day" means any day in which the State is open and conducting business, but shall not
include Saturday, Sunday or any day on which the State observes one of the holidays listed in §24-
11-101(1) C.R.S.
"CORA" means the Colorado Open Records Act, §§24-72-200.1 et. seg., C.R.S.
"Effective Date" means the date on which this Agreement is approved and signed by the Colorado
State Controller or designee, as shown on the Signature and Cover Page for this Agreement.
"Federal Award" means an award of Federal financial assistance or a cost -reimbursement contract
under the Federal Acquisition Requirements by a Federal Awarding Agency to a Recipient.
"Federal Award" also means an agreement setting forth the terms and conditions of the Federal
Award. The term does not include payments to a contractor or payments to an individual that is a
beneficiary of a Federal program.
"Federal Awarding Agency" means a Federal agency providing a Federal Award to a Recipient.
"FHWA" means the Federal Highway Administration, which is one of the twelve administrations
under the Office of the Secretary of Transportation at the U.S. Department of Transportation.
FHWA provides stewardship over the construction, maintenance and preservation of the Nation's
Attachment A — Page 1 of 18
ATTACHMENT A, Amendment #2, Project BRO M306-007 (20095)
highways and tunnels. FHWA is the Federal Awarding Agency for the Federal Award which is the
subject of this Agreement.
"Incident" means any accidental or deliberate event that results in or constitutes an imminent
threat of the unauthorized access or disclosure of State Confidential Information or of the
unauthorized modification, disruption, or destruction of any State Records.
"Notice to Proceed" means the letter issued by the State to the Local Agency stating the date the
Local Agency can begin work subject to the conditions of this Agreement.
"OMB" means the Executive Office of the President, Office of Management and Budget.
"PII" means personally identifiable information including, without limitation, any information
maintained by the State about an individual that can be used to distinguish or trace an individual's
identity, such as name, social security number, date and place of birth, mother's maiden name, or
biometric records; and any other information that is linked or linkable to an individual, such as
medical, educational, financial, and employment information. PII includes, but is not limited to, all
information defined as personally identifiable information in §24-72-501 C.R.S.
"Recipient" means the Colorado Department of Transportation (CDOT) for this Federal Award.
"State Confidential Information" means any and all State Records not subject to disclosure under
CORA. State Confidential Information shall include, but is not limited to, PII and State personnel
records not subject to disclosure under CORA.
"State Fiscal Rules" means the fiscal rules promulgated by the Colorado State Controller pursuant
to §24-30-202(13)(a).
"State Fiscal Year" means a 12 month period beginning on July 1 of each calendar year and
ending on June 30 of the following calendar year. If a single calendar year follows the term, then it
means the State Fiscal Year ending in that calendar year.
"State Purchasing Director" means the position described in the Colorado Procurement Code and
its implementing regulations.
"State Records" means any and all State data, information, and records, regardless of physical
form, including, but not limited to, information subject to disclosure under CORA.
"Subcontractor" means third -parties, if any, engaged by Local Agency to aid in performance of the
Work.
"Subrecipient" means a non -Federal entity that receives a sub -award from a Recipient to carry out
part of a Federal program, but does not include an individual that is a beneficiary of such program.
A Subrecipient may also be a recipient of other Federal Awards directly from a Federal Awarding
Agency.
"Uniform Guidance" means the Office of Management and Budget Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal Awards, which supersedes
requirements from OMB Circulars A-21, A-87, A-110, A -I22, A-89, A-102, and A-133, and the
guidance in Circular A-50 on Single Audit Act follow-up.
Section 4.F is deleted in its entirety and replaced with the following:
F — Exhibits and Other Attachments
The following exhibits are attached hereto and incorporated by reference herein:
i. Exhibit A, Statement of Work.
Attachment A — Page 2 of 18
ATTACHMENT A, Amendment #2, Project BRO M306-007 (20095)
ii. Exhibit B, Sample Option Letter.
iii. Exhibit C, Funding Provisions
iv. Exhibit D, Local Agency Resolution
v. Exhibit E, Local Agency Contract Administration Checklist
vi. Exhibit F, Certification for Federal -Aid Contracts
vii. Exhibit G, Disadvantaged Business Enterprise
viii. Exhibit H, Local Agency Procedures for Consultant Services
ix. Exhibit I, Federal -Aid Contract Provisions For Construction Contracts
x. Exhibit J, Additional Federal Requirements
xi. Exhibit K, The Federal Funding Accountability and Transparency Act of 2006 (FFATA)
Supplemental Federal Provisions
xii. Exhibit L, Sample Subrecipient Risk Assessment Form
xiii. Exhibit M, Supplemental Provisions for Federal Awards Subject to The Office of Management
and Budget Uniform Administrative Requirements, Cost principles, and Audit Requirements for
Federal Awards (the "Uniform Guidance")
d. 5 — Term and Early Termination
Section 5 is deleted in its entirety. The title remains the same but now reads as follows:
A. Initial Term
The Parties' respective performances under this Agreement shall commence on the Agreement Effective
Date shown on the Signature and Cover Page for this Agreement and shall terminate on the date of notice
of CDOT final acceptance ("Agreement Expiration Date") shown on the Signature and Cover Page for
this Agreement, unless sooner terminated or further extended in accordance with the terms of this
Agreement.
B. Early Termination in the Public Interest
The State is entering into this Agreement to serve the public interest of the State of Colorado as
determined by its Governor, General Assembly, or Courts. If this Agreement ceases to further the public
interest of the State, the State, in its discretion, may terminate this Agreement in whole or in part. This
subsection shall not apply to a termination of this Agreement by the State for breach by Local Agency,
which shall be governed by §17.A.
e. 6 — Scope of Work
Section 6 is deleted in its entirety. The title remains the same but now reads as follows:
Local Agency shall complete the Work as described in this Agreement and in accordance with the provisions
of Exhibit A, and the Local Agency Manual. The State shall have no liability to compensate Local Agency
for the delivery of any Goods or the performance of any Services that are not specifically set forth in this
Agreement.
Work may be divided into multiple phases that have separate periods of performance. The State may not
compensate Work that Local Agency performs outside of its designated phase performance period. The
performance period of phases, including, but not limited to Design,
Attachment A — Page 3 of 18
ATTACHMENT A, Amendment #2, Project BRO M306-007 (20095)
Construction, Right of Way, Utilities, or Environment phases, are identified in Exhibit C. The State may
unilaterally modify Exhibit C from time to time, at its sole discretion, to extend the period of performance
for a phase of Work authorized under this Agreement. To exercise this phase performance period extension
option, the State will provide written notice to Local Agency in a form substantially equivalent to Exhibit B.
The State's unilateral extension of phase performance periods will not amend or alter in any way the funding
provisions or any other terms specified in this Agreement, notwithstanding the options listed under §7.
A. Local Agency Commitments
Design
If the Work includes preliminary design, final design, design work sheets, or special provisions
and estimates (collectively referred to as the "Plans"), Local Agency shall ensure that it and its
Contractors comply with and are responsible for satisfying the following requirements:
a. Perform or provide the Plans to the extent required by the nature of the Work.
b. Prepare final design in accordance with the requirements of the latest edition of the American
Association 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 as produced by a Colorado registered professional engineer.
f. Provide final assembly of Plans and all other necessary documents.
g. Ensure the Plans are accurate and complete.
h. Make no further changes in the Plans following the award of the construction contract to
Contractor unless agreed to in writing by the Parties. The Plans shall be considered final when
approved in writing by CDOT, and when final, they will be deemed incorporated herein.
ii. Local Agency Work
a. Local Agency shall comply with the requirements of the Americans With Disabilities Act
(ADA) 42 U.S.C. §12101, et. seq., and applicable federal regulations and standards as
contained in the document "ADA Accessibility Requirements in CDOT Transportation
Projects".
b. Local Agency shall afford the State ample opportunity to review the Plans and shall make
any changes in the Plans that are directed by the State to comply with FHWA requirements.
c. Local Agency may enter into a contract with a Consultant to perform all or any portion of
the Plans and/or construction administration. Provided, however, if federal -aid funds are
involved in the cost of such Work to be done by such Consultant, such Consultant contract
(and the performance provision of the Plans under the contract) must comply with all
applicable requirements of 23 C.F.R.
Attachment A — Page 4 of 18
ATTACHMENT A, Amendment #2, Project BRO M306-007 (20095)
d. Part 172 and with any procedures implementing those requirements as provided by the
State, including those in Exhibit H. If Local Agency enters into a contract with a
Consultant for the Work:
1) Local Agency shall submit a certification that procurement of any Consultant contract
complies with the requirements of 23 C.F.R. 172.5(1) prior to entering into such
Consultant contract, subject to the State's approval. If not approved by the State, Local
Agency shall not enter into such Consultant contract.
2) Local Agency shall ensure that all changes in the Consultant contract have prior
approval by the State and FHWA and that they are in writing. Immediately after the
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.
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 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 contract complies with the requirements
of 49 CFR 18.36(1) and contains the following language verbatim:
"(a) The design work under this Agreement shall be compatible with the requirements
of the contract between Local Agency and the State (which is incorporated herein
by this reference) for the design/construction of the project. The State is an
intended third -party beneficiary of this agreement for that purpose.
(b) Upon advertisement of the project work for construction, the consultant shall make
available services as requested by the State to assist the State in the evaluation of
construction and the resolution of construction problems that may arise during the
construction of the project.
(c) The consultant 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 Local Agency to make such changes therein as the
State determines necessary to comply with State and FHWA requirements."
iii. Construction
If the Work includes construction, Local Agency shall perform the construction in accordance
with the approved design plans and/or administer the construction in
Attachment A — Page 5 of 18
ATTACHMENT A, Amendment #2, Project BRO M306-007 (20095)
accordance with Exhibit E. Such administration shall include Work inspection and testing;
approving sources of materials; performing required plant and shop inspections; documentation
of contract payments, testing and inspection activities; preparing and approving pay estimates;
preparing, approving and securing the funding for contract modification orders and minor contract
revisions; processing construction Contractor claims; construction supervision; and meeting the
quality control requirements of the FHWA/CDOT Stewardship Agreement, as described in
Exhibit E.
a. The State may, after providing written notice of the reason for the suspension to Local
Agency, suspend the Work, wholly or in part, due to the failure of Local Agency or its
Contractor to correct conditions which are unsafe for workers or for such periods as the State
may deem necessary 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.
b. Local Agency shall be responsible for the following:
1) Appointing a qualified professional engineer, licensed in the State of Colorado, as
Local Agency Project Engineer (LAPE), to perform engineering administration. The
LAPE shall administer the Work in accordance with this Agreement, the
requirements of the construction contract and applicable State procedures, as defined
in the CDOT Local Agency Manual
(https://www.codot.gov/business/designsupport/bulletins_manuals/2006-local-
agency-manual).
2) For the construction Services, advertising the call for bids, following its approval by
the State, and awarding the construction contract(s) to the lowest responsible bidder(s).
(a) All Local Agency's advertising and bid awards pursuant to this Agreement shall
comply with applicable requirements of 23 U.S.C. *112 and 23 C.F.R. Parts 633
and 635 and C.R.S. § 24-92-101 et seg. Those requirements include, without
limitation, that Local Agency and its Contractor(s) incorporate Form 1273
(Exhibit I) in its entirety, verbatim, into any subcontract(s) for Services as terms
and conditions thereof, as required by 23 C.F.R. 633.102(e).
(b) Local Agency may accept or reject the proposal of the apparent low bidder for
Work on which competitive bids have been received. Local Agency must accept
or reject such bids within 3 working days after they are publicly opened.
(c) If Local Agency accepts bids and makes awards that exceed the amount of
available Agreement Funds, Local Agency shall provide the additional funds
necessary to complete the Work or not award such bids.
(a) The requirements of §6.A.iii.b.2 also apply to any advertising and bid awards
made by the State.
(b) The State (and in some cases FHWA) must approve in advance all Force Account
Construction, and Local Agency shall not initiate any such Services until the State
issues a written Notice to Proceed.
iv. Right of Way (ROW) and Acquisition/Relocation
a. If Local Agency purchases a ROW for a State highway, including areas of influence, Local
Agency shall convey the ROW to CDOT promptly upon the completion of
Attachment A — Page 6 of 18
ATTACHMENT A, Amendment #2, Project BRO M306-007 (20095)
the project/construction.
b. Any acquisition/relocation activities shall comply with all applicable federal and State
statutes and regulations, including but not limited to, the Uniform Relocation Assistance
and Real Property Acquisition Policies Act of 1970, as amended, the Uniform Relocation
Assistance and Real Property Acquisition Policies for Federal and Federally Assisted
Programs, as amended (49 C.F.R. Part 24), CDOT's Right of Way Manual, and CDOT's
Policy and Procedural Directives.
c. The Parties' respective responsibilities for ensuring compliance with acquisition,
relocation and incidentals depend on the level of federal participation as detailed in
CDOT's Right of Way Manual (located at http://www.codot.gov/business/manuals/right-
of-way); however, the State always retains oversight responsibilities.
d. The Parties' respective responsibilities at each level of federal participation in CDOT's
Right of Way Manual, and the State's reimbursement of Local Agency costs will be
determined pursuant the following categories:
1) Right of way acquisition (31 11) for federal participation and non -participation;
2) Relocation activities, if applicable (3109);
3) Right of way incidentals, if applicable (expenses incidental to acquisition/relocation
of right of way — 3114).
v. Utilities
If necessary, Local Agency shall be responsible for obtaining the proper clearance or approval
from any utility company that may become involved in the Work. Prior to the Work being
advertised for bids, Local Agency shall certify in writing to the State that all such clearances have
been obtained.
a. Railroads
If the Work involves modification of a railroad company's facilities and such modification
will be accomplished by the railroad company, Local Agency shall make timely application
to the Public Utilities Commission ("PUC") requesting its order providing for the
installation of the proposed improvements. Local Agency shall not proceed with that part
of the Work before obtaining the PUC's order. Local Agency shall also establish contact
with the railroad company involved for the purpose of complying with applicable
provisions of 23 C.F.R. 646, subpart B, concerning federal -aid projects involving railroad
facilities, and: Execute an agreement with the railroad company setting out what work is
to be accomplished and the location(s) thereof, and which costs shall be eligible for federal
participation. Obtain the railroad's detailed estimate of the cost of the Work.
Attachment A — Page 7 of 18
ATTACHMENT A, Amendment #2, Project BRO M306-007 (20095)
1) Establish future maintenance responsibilities for the proposed installation.
2) Proscribe in the agreement the future use or dispositions of the proposed improvements
in the event of abandonment or elimination of a grade crossing.
3) Establish future repair and/or replacement responsibilities, as between the railroad
company and the Local Agency, in the event of accidental destruction or damage to
the installation.
vi. Environmental Obligations
Local Agency shall perform all Work in accordance with the requirements of current federal and
State environmental regulations, including the National Environmental Policy Act of 1969
(NEPA) as applicable.
vii. Maintenance Obligations
Local Agency shall maintain and operate the Work constructed under this Agreement at its own
cost and expense during their useful life, in a manner satisfactory to the State and FHWA. Local
Agency shall conduct such maintenance and operations in accordance with all applicable statutes,
ordinances, and regulations pertaining to maintaining such improvements. The State and FHWA
may make periodic inspections to verify that such improvements are being adequately maintained.
viii. Monitoring Obligations
Local Agency shall respond in a timely manner to and participate fully with the monitoring
activities described in §9. F.
B. State's Commitments
i. The State will perform a final project inspection of the Work as a quality control/assurance
activity. When all Work has been satisfactorily completed, the State will sign the FHWA Form
1212.
ii. Notwithstanding any consents or approvals given by the State for the Plans, the State shall not be
liable or responsible in any manner for the structural design, details or construction of any Work
constituting major structures designed by, or that are the responsibility of, Local Agency, as
identified in Exhibit E.
f. 7 — Option Letter Modification
Section 7 is deleted in its entirety. The title remains the same but now reads as follows:
The State may, at its discretion, issue an "Option Letter" to Local Agency to add or modify Work phases
in the Work schedule in Exhibit C if such modifications do not increase total budgeted Agreement
Funds. Such Option Letters shall amend and update Exhibit C, Sections 2 or 4 of the Table, and sub-
sections B and C of the Exhibit C. Option Letters shall not be deemed valid until signed by the State
Controller or an authorized delegate. Modification of Exhibit C by unilateral Option Letter is permitted
only in the specific scenarios listed below. The State will exercise such options by providing Local
Agency a fully executed Option Letter, in a form substantially equivalent to Exhibit B, within 30 days
before the targeted start date
Attachment A — Page 8 of 18
ATTACHMENT A, Amendment #2, Project BRO M306-007 (20095)
g.
of a new or modified Work phase. Such Option Letters will be incorporated into this Agreement.
A. Option to Begin a Phase and/or Increase or Decrease the Encumbrance Amount
The State may require by Option Letter that Local Agency begin a new Work phase that may
include Design, Construction, Environmental, Utilities, ROW Incidentals or Miscellaneous Work
(but may not include Right of Way Acquisition/Relocation or Railroads) as detailed in Exhibit
A. Such Option Letters may not modify the other terms and conditions stated in this Agreement,
and must decrease the amount budgeted and encumbered for one or more other Work phases so
that the total amount of budgeted Agreement Funds remains the same. The State may also issue a
unilateral Option Letter to simultaneously increase and decrease the total encumbrance amount
of two or more existing Work phases, as long as the total amount of budgeted Agreement Funds
remains the same, replacing the original Agreement Funding exhibit (Exhibit C) with an updated
Exhibit C-1 (with subsequent exhibits labeled C-2, C-3, etc).
B. Option to Transfer Funds from One Phase to Another Phase.
The State may require or permit Local Agency to transfer Agreement Funds from one Work phase
(Design, Construction, Environmental, Utilities, ROW Incidentals or Miscellaneous) to another
phase as a result of changes to State, federal, and local match funding. In such case, the original
funding exhibit (Exhibit C) will be replaced with an updated Exhibit C-1 (with subsequent
exhibits labeled C-2, C-3, etc.) attached to the Option Letter. The Agreement Funds transferred
from one Work phase to another are subject to the same terms and conditions stated in the original
Agreement with the total budgeted Agreement Funds remaining the same. The State may
unilaterally exercise this option by providing a fully executed Option Letter to Local Agency
within thirty (30) days before the initial targeted start date of the Work phase, in a form
substantially equivalent to Exhibit B.
C. Option to Exercise Options A and B.
The State may require Local Agency to add a Work phase as detailed in Exhibit A, and encumber
and transfer Agreement Funds from one Work phase to another. The original funding exhibit
(Exhibit C) in the original Agreement will be replaced with an updated Exhibit C-1 (with
subsequent exhibits labeled C-2, C-3, etc.) attached to the Option Letter. The addition of a Work
phase and encumbrance and transfer of Agreement Funds are subject to the same terms and
conditions stated in the original Agreement with the total budgeted Agreement Funds remaining
the same. The State may unilaterally exercise this option by providing a fully executed Option
Letter to Local Agency within 30 days before the initial targeted start date of the Work phase, in
a form substantially equivalent to Exhibit B.
D. Option to Update a Work Phase Performance Period and/or modify information required
under the OMB Uniform Guidance, as outlined in Exhibit C.
The State may update any information contained in Exhibit C, Sections 2 and 4 of the Table, and
sub -sections B and C of the Exhibit C.
8.A and 8.B under 8 — Payments
These two sections are deleted in their entirety. The titles remain the same but each section now
Attachment A — Page 9 of 18
ATTACHMENT A, Amendment #2, Project BRO M306-007 (20095)
reads as follows:
A. Maximum Amount
Payments to Local Agency are limited to the unpaid, obligated balance of the Agreement Funds set forth
in Exhibit C. The State shall not pay Local Agency any amount under this Agreement that exceeds the
Agreement Maximum set forth in Exhibit C. The Local Agency shall provide its match share of the
costs as shown in Exhibit C and may be evidenced by an appropriate ordinance/resolution or authority
letter. A copy of such ordinance/resolution or authority letter may be attached as Exhibit D. The
provision by the Local Agency to CDOT of such ordinance/resolution or authority letter is at the Local
Agency's discretion.
B. Payment Procedures
i. Invoices and Payment
1. The State shall pay Local Agency in the amounts and in accordance with
conditions set forth in Exhibit C.
2. Local Agency shall initiate payment requests by invoice to the State, in
a form and manner approved by the State.
3. The State shall pay each invoice within 45 days following the State's
receipt of that invoice, so long as the amount invoiced correctly
represents Work completed by Local Agency and previously accepted
by the State during the term that the invoice covers. If the State
determines that the amount of any invoice is not correct, then Local
Agency shall make all changes necessary to correct that invoice.
4. The acceptance of an invoice shall not constitute acceptance of any Work
performed or deliverables provided under the Agreement.
ii. Interest
Amounts not paid by the State within 45 days after the State's acceptance of the invoice shall bear
interest on the unpaid balance beginning on the 46th day at the rate of 1% per month, as required
by §24-30-202(24)(a), C.R.S., until paid in full; provided, however, that interest shall not accrue
on unpaid amounts that the State disputes in writing. Local Agency shall invoice the State
separately for accrued interest on delinquent amounts, and the invoice shall reference the
delinquent payment, the number of days interest to be paid and the interest rate.
iii. Payment Disputes
If Local Agency disputes any calculation, determination, or amount of any payment, Local
Agency shall notify the State in writing of its dispute within 30 days following the earlier to occur
of Local Agency's receipt of the payment or notification of the determination or calculation of
the payment by the State. The State will review the information presented by Local Agency and
may make changes to its determination based on this review. The calculation, determination, or
payment amount that results from the State's review shall not be subject to additional dispute
under this subsection. No payment subject to a dispute under this subsection shall be due until
after the State
Attachment A — Page 10 of 18
ATTACHMENT A, Amendment #2, Project BRO M306-007 (20095)
has concluded its review, and the State shall not pay any interest on any amount during the period
it is subject to dispute under this subsection.
iv. Available Funds -Contingency -Termination
The State is prohibited by law from making commitments beyond the term of the current State
Fiscal Year. Payment to Local Agency beyond the current State Fiscal Year is contingent on the
appropriation and continuing availability of Agreement Funds in any subsequent year (as
provided in the Colorado Special Provisions). If federal funds or funds from any other non -State
funds constitute all or some of the Agreement Funds, the State's obligation to pay Local Agency
shall be contingent upon such non -State funding continuing to be made available for payment.
Payments to be made pursuant to this Agreement shall be made only from Agreement Funds, and
the State's liability for such payments shall be limited to the amount remaining of such Agreement
Funds. If State, federal or other funds are not appropriated, or otherwise become unavailable to
fund this Agreement, the State may, upon written notice, terminate this Agreement, in whole or
in part, without incurring further liability. The State shall, however, remain obligated to pay for
Services and Goods that are delivered and accepted prior to the effective date of notice of
termination, and this termination shall otherwise be treated as if this Agreement were terminated
in the public interest as described in §5.B.
v. Erroneous Payments
The State may recover, at the State's discretion, payments made to Local Agency in error for any
reason, including, but not limited to, overpayments or improper payments, and unexpended or
excess funds received by Local Agency. The State may recover such payments by deduction from
subsequent payments under this Agreement, deduction from any payment due under any other
contracts, grants or agreements between the State and Local Agency, or by any other appropriate
method for collecting debts owed to the State. The close out of a Federal Award does not affect
the right of FHWA or the State to disallow costs and recover funds on the basis of a later audit or
other review. Any cost disallowance recovery is to be made within the Record Retention Period
(as defined below in §9.A.).
h. 8.D — Matching Funds
Section 8.D is deleted in its entirety. The title remains the same but now reads as follows:
Local Agency shall provide matching funds as provided in §8.A. and Exhibit C. Local Agency shall have
raised the full amount of matching funds prior to the Effective Date and shall report to the State regarding
the status of such funds upon request. Local Agency's obligation to pay all or any part of any matching funds,
whether direct or contingent, only extend to funds duly and lawfully appropriated for the purposes of this
Agreement by the authorized representatives of Local Agency and paid into Local Agency's treasury. Local
Agency represents to the State that the amount designated "Local Agency Matching Funds" in Exhibit C has
been legally appropriated for the purpose of this Agreement by its authorized representatives and paid into
its treasury. Local Agency may evidence such obligation by an appropriate ordinance/resolution or other
authority letter expressly authorizing Local Agency to enter into this Agreement and to expend its match
share of the Work. A copy of any such ordinance/resolution or authority letter is attached hereto as Exhibit
D. Local Agency does not by this Agreement irrevocably pledge present cash reserves for payments in future
fiscal years, and this Agreement is not intended to create a multiple -fiscal year debt of Local Agency. Local
Agency shall not pay or be liable for any claimed interest, late
Attachment A — Page 11 of 18
ATTACHMENT A, Amendment #2, Project BRO M306-007 (20095)
charges, fees, taxes, or penalties of any nature, except as required by Local Agency's laws or policies.
i. 9.F — Reimbursement of State Costs
j•
Section 9.F is deleted in its entirety. It is now titled "Risk Assessment & Monitoring" and now reads as
follows:
Pursuant to 2 C.F.R. 200.331(b), — CDOT will evaluate Local Agency's risk of noncompliance with
federal statutes, regulations, and terms and conditions of this Agreement. Local Agency shall complete
a Risk Assessment Form (Exhibit L)* when that may be requested by CDOT. The risk assessment is a
quantitative and/or qualitative determination of the potential for Local Agency's non-compliance with
the requirements of the Federal Award. The risk assessment will evaluate some or all of the following
factors:
• Experience: Factors associated with the experience and history of the Subrecipient with
the same or similar Federal Awards or grants.
• Monitoring/Audit: Factors associated with the results of the Subrecipient's previous
audits or monitoring visits, including those performed by the Federal Awarding Agency,
when the Subrecipient also receives direct federal funding. Include audit results if
Subrecipient receives single audit, where the specific award being assessed was selected
as a major program.
• Operation: Factors associated with the significant aspects of the Subrecipient's
operations, in which failure could impact the Subrecipient's ability to perform and
account for the contracted goods or services.
• Financial: Factors associated with the Subrecipient's financial stability and ability to
comply with financial requirements of the Federal Award.
• Internal Controls: Factors associated with safeguarding assets and resources, deterring
and detecting errors, fraud and theft, ensuring accuracy and completeness of accounting
data, producing reliable and timely financial and management information, and ensuring
adherence to its policies and plans.
• Impact: Factors associated with the potential impact of a Subrecipient's non-compliance
to the overall success of the program objectives.
• Program Management: Factors associated with processes to manage critical personnel,
approved written procedures, and knowledge of rules and regulations regarding federal -
aid projects.
Following Local Agency's completion of the Risk Assessment Form (Exhibit L), CDOT will determine
the level of monitoring it will apply to Local Agency's performance of the Work. This risk assessment
may be re-evaluated after CDOT begins performing monitoring activities.
*Note: The Risk Assessment applies only to Projects which have the initial phase authorized on or
after July 1, 2016.
9.G — Close Out
Section 9.G is added to the IGA and reads as follows:
Local Agency shall close out this Award within 90 days after the Final Phase Performance End Date. Close
out requires Local Agency's submission to the State of all deliverables defined in this Agreement, and Local
Agency's final reimbursement request or invoice. The State will withhold 5% of allowable costs until all
final documentation has been submitted and accepted by the State
Attachment A — Page 12 of 18
ATTACHMENT A, Amendment #2, Project BRO M306-007 (20095)
as substantially complete. If FHWA has not closed this Federal Award within 1 year and 90 days after the
Final Phase Performance End Date due to Local Agency's failure to submit required documentation, then
Local Agency may be prohibited from applying for new Federal Awards through the State until such
documentation is submitted and accepted.
k. 10 — Reporting — Notification
Section 10 is deleted in its entirety. The title remains the same but now reads as follows:
A. Quarterly Reports
In addition to any reports required pursuant to §21 or pursuant to any exhibit, for any contract having a
term longer than 3 months, Local Agency shall submit, on a quarterly basis, a written report specifying
progress made for each specified performance measure and standard in this Agreement. Such progress
report shall be in accordance with the procedures developed and prescribed by the State. Progress reports
shall be submitted to the State not later than 5 Business Days following the end of each calendar quarter
or at such time as otherwise specified by the State.
B. Litigation Reporting
If Local Agency is served with a pleading or other document in connection with an action before a court
or other administrative decision making body, and such pleading or document relates to this Agreement
or may affect Local Agency's ability to perform its obligations under this Agreement, Local Agency
shall, within 10 days after being served, notify the State of such action and deliver copies of such
pleading or document to the State's principal representative identified in §18.
C. Performance and Final Status
Local Agency shall submit all financial, performance and other reports to the State no later than 60
calendar days after the Final Phase Performance End Date or sooner termination of this Agreement,
containing an Evaluation of Subrecipient's performance and the final status of Subrecipient's obligations
hereunder.
D. Violations Reporting
Local Agency must disclose, in a timely manner, in writing to the State and FHWA, all violations of
federal or State criminal law involving fraud, bribery, or gratuity violations potentially affecting the
Federal Award. Penalties for noncompliance may include suspension or debarment (2 CFR Part 180 and
31 U.S.C. 3321).
1. 11— Local Agency Records
Section 11 is deleted in its entirety. The title remains the same but now reads as follows:
A. Maintenance
Local Agency shall make, keep, maintain, and allow inspection and monitoring by the State of a
complete file of all records, documents, communications, notes and other written materials, electronic
media files, and communications, pertaining in any manner to the Work or the delivery of Services
(including, but not limited to the operation of programs) or Goods hereunder. Local Agency shall
maintain such records for a period (the "Record Retention Period") of three years following the date of
submission to the State of the final expenditure report, or if this Award is renewed quarterly or annually,
from the date of the submission of each quarterly or annual report, respectively. If any litigation, claim,
or audit related to this
Attachment A — Page 13 of 18
ATTACHMENT A, Amendment #2, Project BRO M306-007 (20095)
Award starts before expiration of the Record Retention Period, the Record Retention Period shall extend
until all litigation, claims, or audit findings have been resolved and final action taken by the State or
Federal Awarding Agency. The Federal Awarding Agency, a cognizant agency for audit, oversight or
indirect costs, and the State, may notify Local Agency in writing that the Record Retention Period shall
be extended. For records for real property and equipment, the Record Retention Period shall extend three
years following final disposition of such property.
B. Inspection
Local Agency shall permit the State to audit, inspect, examine, excerpt, copy, and transcribe Local
Agency Records during the Record Retention Period. Local Agency shall make Local Agency Records
available during normal business hours at Local Agency's office or place of business, or at other
mutually agreed upon times or locations, upon no fewer than 2 Business Days' notice from the State,
unless the State determines that a shorter period of notice, or no notice, is necessary to protect the
interests of the State.
C. Monitoring
The State will monitor Local Agency's performance of its obligations under this Agreement using
procedures as determined by the State. The State shall monitor Local Agency's performance in a manner
that does not unduly interfere with Local Agency's performance of the Work.
D. Final Audit Report
Local Agency shall promptly submit to the State a copy of any final audit report of an audit performed
on Local Agency's records that relates to or affects this Agreement or the Work, whether the audit is
conducted by Local Agency or a third party.
m. 12 — Confidential Information -State Records
Section 12 is deleted in its entirety. The title remains the same but now reads as follows:
A. Confidentiality
Local Agency shall hold and maintain, and cause all Subcontractors to hold and maintain, any and all
State Records that the State provides or makes available to Local Agency for the sole and exclusive
benefit of the State, unless those State Records are otherwise publicly available at the time of disclosure
or are subject to disclosure by Local Agency under CORA. Local Agency shall not, without prior written
approval of the State, use for Local Agency's own benefit, publish, copy, or otherwise disclose to any
third party, or permit the use by any third party for its benefit or to the detriment of the State, any State
Records, except as otherwise stated in this Agreement. Local Agency shall provide for the security of
all State Confidential Information in accordance with all policies promulgated by the Colorado Office
of Information Security and all applicable laws, rules, policies, publications, and guidelines. Local
Agency shall immediately forward any request or demand for State Records to the State's principal
representative.
B. Other Entity Access and Nondisclosure Agreements
Local Agency may provide State Records to its agents, employees, assigns and Subcontractors as
necessary to perform the Work, but shall restrict access to State Confidential Information
Attachment A — Page 14 of 18
ATTACHMENT A, Amendment #2, Project BRO M306-007 (20095)
to those agents, employees, assigns and Subcontractors who require access to perform their obligations
under this Agreement. Local Agency shall ensure all such agents, employees, assigns, and
Subcontractors sign nondisclosure agreements with provisions at least as protective as those in this
Agreement, and that the nondisclosure agreements are in force at all times the agent, employee, assign
or Subcontractor has access to any State Confidential Information. Local Agency shall provide copies
of those signed nondisclosure agreements to the State upon request.
C. Use, Security, and Retention
Local Agency shall use, hold and maintain State Confidential Information in compliance with any and
all applicable laws and regulations in facilities located within the United States, and shall maintain a
secure environment that ensures confidentiality of all State Confidential Information wherever located.
Local Agency shall provide the State with access, subject to Local Agency's reasonable security
requirements, for purposes of inspecting and monitoring access and use of State Confidential Information
and evaluating security control effectiveness. Upon the expiration or termination of this Agreement,
Local Agency shall return State Records provided to Local Agency or destroy such State Records and
certify to the State that it has done so, as directed by the State. If Local Agency is prevented by law or
regulation from returning or destroying State Confidential Information, Local Agency warrants it will
guarantee the confidentiality of, and cease to use, such State Confidential Information.
D. Incident Notice and Remediation
If Local Agency becomes aware of any Incident, it shall notify the State immediately and cooperate with
the State regarding recovery, remediation, and the necessity to involve law enforcement, as determined
by the State. Unless Local Agency can establish that none of Local Agency or any of its agents,
employees, assigns or Subcontractors are the cause or source of the Incident, Local Agency shall be
responsible for the cost of notifying each person who may have been impacted by the Incident. After an
Incident, Local Agency shall take steps to reduce the risk of incurring a similar type of Incident in the
future as directed by the State, which may include, but is not limited to, developing and implementing a
remediation plan that is approved by the State at no additional cost to the State.
n. 13 — Conflict of Interest
Section 13 is deleted in its entirety. The title remains the same but now reads as follows:
A. Actual Conflicts of Interest
Local Agency shall not engage in any business or activities, or maintain any relationships that conflict
in any way with the full performance of the obligations of Local Agency under this Agreement. Such a
conflict of interest would arise when a Local Agency or Subcontractor's employee, officer or agent were
to offer or provide any tangible personal benefit to an employee of the State, or any member of his or
her immediate family or his or her partner, related to the award of, entry into or management or oversight
of this Agreement. Officers, employees and agents of Local Agency may neither solicit nor accept
gratuities, favors or anything of monetary value from contractors or parties to subcontracts.
B. Apparent Conflicts of Interest
Local Agency acknowledges that, with respect to this Agreement, even the appearance of a conflict of
interest shall be harmful to the State's interests. Absent the State's prior written
Attachment A — Page 15 of 18
ATTACHMENT A, Amendment #2, Project BRO M306-007 (20095)
approval, Local Agency shall refrain from any practices, activities or relationships that reasonably appear
to be in conflict with the full performance of Local Agency's obligations under this Agreement.
C. Disclosure to the State
If a conflict or the appearance of a conflict arises, or if Local Agency is uncertain whether a conflict or
the appearance of a conflict has arisen, Local Agency shall submit to the State a disclosure statement
setting forth the relevant details for the State's consideration. Failure to promptly submit a disclosure
statement or to follow the State's direction in regard to the actual or apparent conflict constitutes a breach
of this Agreement.
o. 15.B.iv — Additional Insured
P.
Section 15.B.iv is deleted in its entirety. The title remains the same but now reads as follows:
The State shall be named as additional insured on all commercial general liability policies (leases and
construction contracts require additional insured coverage for completed operations) required of Local
Agency and Subcontractors. In the event of cancellation of any commercial general liability policy, the carrier
shall provide at least 10 days prior written notice to CDOT.
17.B — Early Termination in the Public Interest
Section 17.B is deleted in its entirety. It is now titled "Remedies Not Involving Termination" and now reads
as follows:
The State, in its discretion, may exercise one or more of the following additional remedies:
i. Suspend Performance
Suspend Local Agency's performance with respect to all or any portion of the Work
pending corrective action as specified by the State without entitling Local Agency to an
adjustment in price or cost or an adjustment in the performance schedule. Local Agency
shall promptly cease performing Work and incurring costs in accordance with the State's
directive, and the State shall not be liable for costs incurred by Local Agency after the
suspension of performance.
ii. Withhold Payment
Withhold payment to Local Agency until Local Agency corrects its Work.
iii. Deny Payment
Deny payment for Work not performed, or that due to Local Agency's actions or inactions,
cannot be performed or if they were performed are reasonably of no value to the state;
provided, that any denial of payment shall be equal to the value of the obligations not
performed.
iv. Removal
Demand immediate removal from the Work of any of Local Agency's employees, agents,
or Subcontractors from the Work whom the State deems incompetent, careless,
insubordinate, unsuitable, or otherwise unacceptable or whose
Attachment A — Page 16 of 18
ATTACHMENT A, Amendment #2, Project BRO M306-007 (20095)
q.
continued relation to this Agreement is deemed by the State to be contrary to the public
interest or the State's best interest.
v. Intellectual Property
If any Work infringes a patent, copyright, trademark, trade secret, or other intellectual
property right, Local Agency shall, as approved by the State (a) secure that right to use
such Work for the State or Local Agency; (b) replace the Work with noninfringing Work
or modify the Work so that it becomes noninfringing; or, (c) remove any infringing Work
and refund the amount paid for such Work to the State.
17.0 — Remedies Not Involving Termination
Section 17.0 is deleted in its entirety. It is now titled "Local Agency's Remedies" and now reads as follows:
If the State is in breach of any provision of this Agreement and does not cure such breach, Local Agency,
following the notice and cure period in §16.B and the dispute resolution process in §24 shall have all remedies
available at law and equity.
r. 19 — Rights in Data, Documents, and Computer Software
Section 19 is deleted in its entirety. The title remains the same but now reads as follows:
A. Work Product
Local Agency assigns to the State and its successors and assigns, the entire right, title, and interest in
and to all causes of action, either in law or in equity, for past, present, or future infringement of
intellectual property rights related to the Work Product and all works based on, derived from, or
incorporating the Work Product. Whether or not Local Agency is under contract with the State at the
time, Local Agency shall execute applications, assignments, and other documents, and shall render all
other reasonable assistance requested by the State, to enable the State to secure patents, copyrights,
licenses and other intellectual property rights related to the Work Product. The Parties intend the Work
Product to be works made for hire.
i. Copyrights
To the extent that the Work Product (or any portion of the Work Product) would not be considered
works made for hire under applicable law, Local Agency hereby assigns to the State, the entire
right, title, and interest in and to copyrights in all Work Product and all works based upon, derived
from, or incorporating the Work Product; all copyright applications, registrations, extensions, or
renewals relating to all Work Product and all works based upon, derived from, or incorporating
the Work Product; and all moral rights or similar rights with respect to the Work Product
throughout the world. To the extent that Local Agency cannot make any of the assignments
required by this section, Local Agency hereby grants to the State a perpetual, irrevocable, royalty -
free license to use, modify, copy, publish, display, perform, transfer, distribute, sell, and create
derivative works of the Work Product and all works based upon, derived from, or incorporating
the Work Product by all means and methods and in any format
Attachment A — Page 17 of 18
ATTACHMENT A, Amendment #2, Project BRO M306-007 (20095)
now known or invented in the future. The State may assign and license its rights under this
license.
ii. Patents
In addition, Local Agency grants to the State (and to recipients of Work Product distributed by or
on behalf of the State) a perpetual, worldwide, no -charge, royalty -free, irrevocable patent license
to make, have made, use, distribute, sell, offer for sale, import, transfer, and otherwise utilize,
operate, modify and propagate the contents of the Work Product. Such license applies only to
those patent claims licensable by Local Agency that are necessarily infringed by the Work Product
alone, or by the combination of the Work Product with anything else used by the State.
B. Exclusive Property of the State
Except to the extent specifically provided elsewhere in this Agreement, any pre-existing State Records,
State software, research, reports, studies, photographs, negatives, or other documents, drawings, models,
materials, data, and information shall be the exclusive property of the State (collectively, "State
Materials"). Local Agency shall not use, willingly allow, cause or permit Work Product or State
Materials to be used for any purpose other than the performance of Local Agency's obligations in this
Agreement without the prior written consent of the State. Upon termination of this Agreement for any
reason, Local Agency shall provide all Work Product and State Materials to the State in a form and
manner as directed by the State.
s. 24 — Disputes
Section 24 is deleted in its entirety. The title remains the same but now reads as follows:
A. Initial Resolution
Except as herein specifically provided otherwise, disputes concerning the performance of this Agreement
which cannot be resolved by the designated Agreement representatives shall be referred in writing to a
senior departmental management staff member designated by the State and a senior manager designated
by Local Agency for resolution.
B. Resolution of Controversies
If the initial resolution described in §24.A fails to resolve the dispute within 10 Business Days, Local
Agency shall submit any alleged breach of this Agreement by the State to the purchasing director of
CDOT for resolution in accordance with the provisions of §§24-109-101, 24-109-106, 24-109-107, and
24-109-201 through 24-109-206 C.R.S., (the "Resolution Statutes"), except that if Local Agency wishes
to challenge any decision rendered by the purchasing director, Local Agency's challenge shall be an
appeal to the executive director of the Department of Personnel and Administration, or their delegate,
under the Resolution Statutes before Local Agency pursues any further action as permitted by such
statutes. Except as otherwise stated in this Section, all requirements of the Resolution Statutes shall apply
including, without limitation, time limitations.
Attachment A — Page 18 of 18
EXHIBIT C-2 — FUNDING PROVISIONS
A. Cost of Work Estimate
The Local Agency has estimated the total cost the Work to be $1,281,000.00. w
BRO M306-007 (20095)
1. BUDGETED FUNDS
a. Federal Funds
(80% of Participating Costs)
b. Local Agency Matching Funds
(20% of Participating Costs)
$1,024,800.00
$256,200.00
TOTAL BUDGETED FUNDS
$1,281,000.00
2. OMB UNIFORM GUIDANCE
a. Federal Award Identification Number (FAIN):
TBD
b. Federal Award Date (also Phase Performance Start Date):
See Below
c. Amount of Federal Funds Obligated by this Action:
$184,351.20
d. Total Amount of Federal Award:
$1,024,800.00
e. Name of Federal Awarding Agency:
FHWA
f. CFDA Number — Highway Planning and Construction
CFDA 20.205
g. Is the Award for R&D?
No
h. Indirect Cost Rate (if applicable)
N/A
3. ESTIMATED PAYMENT TO LOCAL AGENCY
a. Federal Funds Budgeted
$1,024,800.00
b. Less Estimated Federal Share of CDOT-Incurred Costs
$0.00
TOTAL ESTIMATED PAYMENT TO LOCAL AGENCY
$1,024,800.00
4. FOR CDOT ENCUMBRANCE PURPOSES
a. Total Encumbrance Amount
$1,281,000.00
b. Less ROW Acquisition 31 1 1 and/or ROW Relocation 3109
$0.00
Net to be encumbered as follows:
$1,281,000.00
WBS Element 20095.10.30
Performance Period Start*/End Date
08/25/2014 - 12/31/2018
Design
3020
$230,439.00
WBS Element 20095.20.10
Performance Period Start*/End Date
12/05/2006 -
Const.
3301
$0.00
*The Local Agency should not begin work until all three of the following are in place: 1) Phase Performance Period Start Date; 2) the
execution of the document encumbering funds for the respective phase; and 3) Local Agency receipt of the official Notice to Proceed.
Any work performed before these three milestones are achieved will not be reimbursable.
Exhibit C-2 — Page 1 of 2
B. Matching Funds
The matching ratio for the federal participating funds for this Work is 80% federal -aid funds to 20% Local
Agency funds, it being understood that such ratio applies only to the $1,281,000.00 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 $1,281,000.00, and additional federal
funds are made available for the Work, the Local Agency shall pay 20% of all such costs eligible for federal
participation and 100% of all non -participating costs; if additional federal funds are not made available, the
Local Agency shall pay all such excess costs. If the total participating cost of performance of the Work is less
than $1,281,000.00, then the amounts of Local Agency and federal -aid funds will be decreased in accordance
with the funding ratio described herein. The performance of the Work shall be at no cost to the State.
C. Maximum Amount Payable
The maximum amount payable to the Local Agency under this Agreement shall be $1,024,800.00 (For CDOT
accounting purposes, the federal funds of $1,024,800.00 and the Local Agency matching funds of $256,200.00
will be encumbered for a total encumbrance of $1,281,000.00), 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. NOTE: Design funds are currently available. Other phase funds will be added in
the future by Option Letter or Amendment.
The maximum amount payable shall be reduced without amendment when the actual amount of the Local
Agency's awarded contract is less than the budgeted total of the federal participating funds and the Local
Agency matching funds. The maximum amount payable shall be reduced through the execution of an Option
Letter as described in Section 7. A. of this contract.
D. Single Audit Act Amendment
All state and local government and non-profit organizations receiving more than $750,000 from all funding
sources defined as federal financial assistance for Single Audit Act Amendment purposes shall comply with
the audit requirements of 2 CFR part 200, subpart F (Audit Requirements) see also, 49 C.F.R. 18.20 through
18.26. The Single Audit Act Amendment requirements applicable to the Local Agency receiving federal funds
are as follows:
i. Expenditure less than $750,000
If the Local Agency expends less than $750,000 in Federal funds (all federal sources, not just
Highway funds) in its fiscal year then this requirement does not apply.
ii. Expenditure of $750,000 or more -Highway Funds Only
If the Local Agency expends $750,000 or more, in Federal funds, but only received federal
Highway funds (Catalog of Federal Domestic Assistance, CFDA 20.205) then a program specific
audit shall be performed. This audit will examine the "financial" procedures and processes for this
program area.
iii. Expenditure of $750,000 or more -Multiple Funding Sources
If the Local Agency expends $750,000 or more in Federal funds, and the Federal funds are from
multiple sources (FTA, HUD, NPS, etc.) then the Single Audit Act applies, which is an audit on
the entire organization/entity.
iv. Independent CPA
Single Audit shall only be conducted by an independent CPA, not by an auditor on staff. An audit
is an allowable direct or indirect cost.
Exhibit C-2 — Page 2 of 2
EXHIBIT B-1, SAMPLE OPTION LETTER
State Agency
Department of Transportation
Option Letter Number
ZOPTLETNUM
Local Agency
ZVENDORNAME
Agreement Routing Number
ZSMARTNO
Agreement Maximum Amount
Initial term
State Fiscal Year ZFYY_1
Extension terms
State Fiscal Year ZFYY_2
State Fiscal Year ZFYY_3
State Fiscal Year ZFYY_4
State Fiscal Year ZFYY_5
Total for all state fiscal years
$ ZFYA_ 1
$ ZFYA_2
$ ZFYA_3
$ ZFYA_4
$ ZFYA_5
$
ZPERSVC_MAX_
AMOUNT
Agreement Effective Date
The later of the effective date or ZSTARTDATEX
Current Agreement Expiration Date
ZTERMDATEX
1. OPTIONS:
A. Option to extend for an Extension Term
B. Option to unilaterally authorize the Local Agency to begin a phase which may include Design, Construction,
Environmental, Utilities, ROW incidentals or Miscellaneous ONLY (does not apply to Acquisition/Relocation
or Railroads) and to update encumbrance amounts (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.).
C. Option to unilaterally transfer funds from one phase to another phase (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.).
D. Option to unilaterally do both A and B (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.).
E. Option to update a Phase Performance Period and/or Modify OMB Uniform Guidance Information.
2. REQUIRED PROVISIONS:
Option A
In accordance with Section 2, C of the Original Agreement referenced above, the State hereby exercises its option for an
additional term, beginning on (insert date) and ending on the current contract expiration date shown above, under the same
funding provisions stated in the Original Contract Exhibit C, as amended.
Option B
In accordance with Section 7, D of the Original Agreement referenced above, the State hereby exercises its option to
authorize the Local Agency to begin a phase that will include (describe which phase will be added and include all that
apply — Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous) and to encumber previously
budgeted funds for the phase based upon changes in funding availability and authorization. The encumbrance for (Design,
Construction, Environmental, Utilities, ROW incidentals or Miscellaneous) is (insert dollars here). A new Exhibit C-1 is
made part of the original Agreement and replaces Exhibit C. (The following is a NOTE only, please delete when using this
option. Future changes for this option for Exhibit C shall be labeled as follows: C-2, C-3, C-4, etc.).
Option C
In accordance with Section 7, D of the Original Agreement referenced above, the State hereby exercises its option to
authorize the Local Agency to transfer funds from (describe phase from which funds will be moved) to (describe phase to
which funds will be moved) based on variance in actual phase costs and original phase estimates. A new Exhibit C-1 is
made part of the original Agreement and replaces Exhibit C.
Exhibit B -I — Page 1 of 2
Option D
In accordance with Section 7, D of the Original Agreement referenced above, the State hereby exercises its option to
authorize the Local Agency to begin a phase that will include (describe which phase will be added and include all that
apply — Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous); 2) to encumber funds for the
phase based upon changes in funding availability and authorization; and 3) to transfer funds from (describe phase from
which funds will be moved) to (describe phase to which funds will be moved) based on variance in actual phase costs and
original phase estimates. A new Exhibit C-1 is made part of the original Agreement and replaces Exhibit C.
(The following language must be included on ALL options):
The Agreement Maximum Amount table on the Contract's Signature and Cover Page is hereby deleted and replaced with
the Current Agreement Maximum Amount table shown above.
Option E
In accordance with Section 7, D of the Original Agreement referenced above, the State hereby exercises its option to
authorize the Local Agency to update a Phase Performance Period and/or Modify OMB Uniform Guidance Information. A
new Exhibit C-1 is made part of the original Agreement and replaces Exhibit C.
3. OPTION EFFECTIVE DATE:
The effective date of this option letter is upon approval of the State Controller or delegate.
APPROVALS:
State of Colorado:
John W. Hickenlooper, 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
Robert Jaros, CPA, MBA, JD
By:
Date:
Exhibit B-1 — Page 2 of 2
EXHIBIT L, SAMPLE SUBRECIPIENT MONITORING AND RISK
ASSESSMENT
Elf CDOT SUBRECIPIENT RISK ASSESSMENT Date:
Name of Entity (Subrecipient):
Name cf Project / Program:
Estimated Award Period:
Entity Executive Director or VP:
Entity Chief Franca Officer:
Entity Representative for th',s Self Assessment:
Instructions: (See "Instructions" tab for more information)
1. Check only one box for each question. All questions ore required to beanswered.
2. Otili_-e the "CotIlMereSeetian below the lost question for additional responses.
3. When complete, check the box at the bottom of the form to authorize.
Yes
No
N/A
EXPERIENCE ASSESSMENT Yes No N/A
1
Is your entity new to operating or managing federal funds (has not done so within the past three
years)'
2
Is this funding program new for your entity (managed for less than three years)? Examples of
Jundinq programs include CMAC:. TAP. STP -M, etc.
(
3,
Does your staff assigned to the program have at least three 5,11 years of experierce with this
federal program)
MONITORING/AUDIT ASSESSMENT Yes No N/A
a
Has your entity had an on-site project or grant review from an external entity (e.g.. CDOT.I
FHWA) within the last three years,
( i
5
a) Were there non-compliance issues in this prior review?
j.
b) What were the number and extent of issues in prior review?
; 1
1 ra t
OPERATION ASSESSMENT Yes No N/A
'.
Does your entity have a time and effort reporting system in place to account for 100%of all
employees' time, that can provide a breakdown of the actual time spent on each funded
project? If No, in the comment section please explain hew you intend to document 1004 of
hours worked by employees and breakdown of time spent on each funding project.
n
FINANCIAL ASSESSMENT Yes No N/A
f
a) Does your entity have an indirect cost rate that is approved and current?
-- - 'i—
b) If Yes. who approved the rate, and what date was it approved?
8
Is this grant/award 10% or more of your entity's overall funding?
1
:a
! 1
:o•
n
Has your entity retuned lapsed• funds> •Fond!. "lapse" when they are no ,'anger available for
obligation.
10
Has your entity had difficulty mee:'ng local match requirements in the last three years?
1.1
What is the total federal fundirg your entity has been awarded for the last federal fiscal year,
and what is your entity's f scar. year end-,
Exhibit L - Page 1 of 3
INTERNAL CONTROLS ASSESSMENT Yes No N/A
12
Has your entity had any significant changes it key personnel or accounting system(s) in the last
year? (e.g., Controller. Exec Director, Program Mgr, Accounting Mgr, etc.) if Yes, in the
comment section, please identify the accounting system(s), and /or list personnel positions and
Identify any that are vacant.
n
13
Does your entity have financial procedures and controls in place to accommodate a federal-aid
project?
1
1.1
13
Does your accounting system identify the receipts and expenditures of program funds
separately 'or each aware?
l
15_
Will your accounting system provide for the recorcing of expenditures for each award by the
budget cost categories shown in the approved budget?
16
Does your agency have a review process for all expenditures that will ensure that all costs are
reasonable, allowable and allocated correctly to each funding source? If Yes, in the comment
section please explain your current process for reviewing costs.
17
How many total FTE perform accounting functions within your organization?
i6
2 to 5
I .i
<2
IMPACT
ASSESSMENT vas No N/A
113 For this upcoming federal award or in the immediate future, does your entity have any potential
conflicts of interest' in accordance with applicable Federal awarding agency policy? If Yes.
please disclose these conflicts in writing, along with supporting information, and submit with
this form. ( •Any practices, aCbwtres or relationships that reasonably, appear to be In conflict ,wth the full
performance of the Sobrecro'ent's obligations to toe State.)
P
19 For this aware, has your entity disclosed to CDOT, in writing, violations of Federal criminal law
involving fraud, bribery, or gratuity violations potentially affecting the award? Response
options:
YES = Check if hover one or more violation(s) and hove either disclosed previously to CDOT or as
port of this form. In the comment section, list all violations with names of supporting
documentation and submit with this form.
NO = Check if hove one or more violation(s) and hove not disclosed previously or will not
disclose as part of this form. Explain in the comment section.
N/A = Check if have no violations.
PROGRAM MANAGEMENT ASSESSMENT vas No N/A
20
Does your entity have a written process/procedure or certification statement approved by your
governing board ensuring critical project personnel are capable cf effectively managing Federal-
aid Projects? If Yes, please submit with thisform.
7
21
Does your entity have written procurement policies or certification statement for consultant
selection approved by your governing board in compliance with 23 CFR 172`? if Yes, please
submit with this form. ( •Thr Erooks Act regmres agenoes to promote open compeohon by advertuvrg,
ranking, selec?mgand rsrgotraturg contracts hosed on demonstrated competence and quo! frcatrons, at a
fav and reasonable price.)
2
a) Is your staff familiar with the relevant CDOT manuals and federal program requirements?
b) Does your entity have a written policy or a certification statement approved by your
governing board assuring federal-aid projects will receive adequate inspections? if Yes, please
submit with this form.
n
n
() Does your entity have a written process or a certification statement approved by your
governing board assuring a contractor's work will be completed in conformance with approved
plans and specifications? If Yes please submit with this form.
7
l_
Exhibit L — Page 2 of 3
d) Does your entity have a written policy or certification statement approved by your governing
board assuring that materials installed on the projects are sampled and tested per approved
processes. If Yes, please submit with this form.
E
e) Does your entity have a written policy or certification statement approved by your governing
board assuring that only US manufactured steel will be incorporated into the project (Buy
America requirements }? If Yes, please submit with this form.
El
Comments - As needed, include the question number and provide comments related to the above questions.
Insert additional rows as needed.
n By checking this box, the Executive Director, VP or Chief Financial Officer of this entity certifies that all
information provided on this form is true and correct.
Exhibit L — Page 3 of 3
® rsv1 Ver, on:
r2.0 (0818161
EXHIBIT M, OMB Uniform Guidance for Federal Awards
Subject to
The Office of Management and Budget Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards ("Uniform Guidance"),
Federal Register, Vol. 78, No. 248, 78590
The agreement to which these Uniform Guidance Supplemental Provisions are attached has been funded, in whole
or in part, with an award of Federal funds. In the event of a conflict between the provisions of these Supplemental
Provisions, the Special Provisions, the agreement or any attachments or exhibits incorporated into and made a part
of the agreement, the provisions of these Uniform Guidance Supplemental Provisions shall control. In the event of a
conflict between the provisions of these Supplemental Provisions and the FFATA Supplemental Provisions, the
FFATA Supplemental Provisions shall control.
1. Definitions. For the purposes of these Supplemental Provisions, the following terms shall have the meanings
ascribed to them below.
1.1. "Award" means an award by a Recipient to a Subrecipient funded in whole or in part by a Federal
Award. The terms and conditions of the Federal Award flow down to the Award unless the terms and
conditions of the Federal Award specifically indicate otherwise. 2 CFR §200.38
1.2. "Federal Award" means an award of Federal financial assistance or a cost -reimbursement contract
under the Federal Acquisition Requirements by a Federal Awarding Agency to a Recipient. "Federal
Award" also means an agreement setting forth the terms and conditions of the Federal Award. The term
does not include payments to a contractor or payments to an individual that is a beneficiary of a Federal
program.
1.3. "Federal Awarding Agency" means a Federal agency providing a Federal Award to a Recipient. 2 CFR
§200.37
1.4. "FFATA" means the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109-
282), as amended by §6202 of Public Law 110-252.
1.5. "Grant" or "Grant Agreement" means an agreement setting forth the terms and conditions of an
Award. The term does not include an agreement that provides only direct Federal cash assistance to an
individual, a subsidy, a loan, a loan guarantee, insurance, or acquires property or services for the direct
benefit of use of the Federal Awarding Agency or Recipient. 2 CFR §200.51.
1.6. "OMB" means the Executive Office of the President, Office of Management and Budget.
1.7. "Recipient" means a Colorado State department, agency or institution of higher education that receives a
Federal Award from a Federal Awarding Agency to carry out an activity under a Federal program. The
term does not include Subrecipients. 2 CFR §200.86
1.8. "State" means the State of Colorado, acting by and through its departments, agencies and institutions of
higher education.
1.9. "Subrecipient" means a non -Federal entity receiving an Award from a Recipient to carry out part of a
Federal program. The term does not include an individual who is a beneficiary of such program.
1.10. "Uniform Guidance" means the Office of Management and Budget Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal Awards, which supersedes
requirements from OMB Circulars A-21, A-87, A-110, and A-122, OMB Circulars A-89, A-102, and A-
133, and the guidance in Circular A-50 on Single Audit Act follow-up. The terms and conditions of the
Uniform Guidance flow down to Awards to Subrecipients unless the Uniform Guidance or the terms and
conditions of the Federal Award specifically indicate otherwise.
1.11. "Uniform Guidance Supplemental Provisions" means these Supplemental Provisions for Federal
Awards subject to the OMB Uniform Guidance, as may be revised pursuant to ongoing guidance from
relevant Federal agencies or the Colorado State Controller.
2. Compliance. Subrecipient shall comply with all applicable provisions of the Uniform Guidance, including but
Exhibit M — Page 1 of 5
not limited to these Uniform Guidance Supplemental Provisions. Any revisions to such provisions
automatically shall become a part of these Supplemental Provisions, without the necessity of either party
executing any further instrument. The State of Colorado may provide written notification to Subrecipient of
such revisions, but such notice shall not be a condition precedent to the effectiveness of such revisions.
3. Procurement Standards.
3.1 Procurement Procedures. Subrecipient shall use its own documented procurement procedures which
reflect applicable State, local, and Tribal laws and regulations, provided that the procurements conform
to applicable Federal law and the standards identified in the Uniform Guidance, including without
limitation, §§200.318 through 200.326 thereof.
3.2 Procurement of Recovered Materials. If Subrecipient is a State Agency or an agency of a political
subdivision of a state, its contractors must comply with section 6002 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include
procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR
part 247 that contain the highest percentage of recovered materials practicable, consistent with
maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or
the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid
waste management services in a manner that maximizes energy and resource recovery; and establishing
an affirmative procurement program for procurement of recovered materials identified in the EPA
guidelines.
4. Access to Records. Subrecipient shall permit Recipient and auditors to have access to Subrecipient's records
and financial statements as necessary for Recipient to meet the requirements of §200.331 (Requirements for
pass-through entities), §§200.300 (Statutory and national policy requirements) through 200.309 (Period of
performance), and Subpart F -Audit Requirements of the Uniform Guidance. 2 CFR §200.331(a)(5).
5. Single Audit Requirements. If Subrecipient expends $750,000 or more in Federal Awards during
Subrecipient's fiscal year, Subrecipient shall procure or arrange for a single or program -specific audit
conducted for that year in accordance with the provisions of Subpart F -Audit Requirements of the Uniform
Guidance, issued pursuant to the Single Audit Act Amendments of 1996, (31 U.S.C. 7501-7507). 2 CFR
§200.501.
5.1 Election. Subrecipient shall have a single audit conducted in accordance with Uniform Guidance
§200.514 (Scope of audit), except when it elects to have a program -specific audit conducted in
accordance with §200.507 (Program -specific audits). Subrecipient may elect to have a program -specific
audit if Subrecipient expends Federal Awards under only one Federal program (excluding research and
development) and the Federal program's statutes, regulations, or the terms and conditions of the Federal
award do not require a financial statement audit of Recipient. A program -specific audit may not be
elected for research and development unless all of the Federal Awards expended were received from
Recipient and Recipient approves in advance a program -specific audit.
5.2 Exemption. If Subrecipient expends less than $750,000 in Federal Awards during its fiscal year,
Subrecipient shall be exempt from Federal audit requirements for that year, except as noted in 2 CFR
§200.503 (Relation to other audit requirements), but records shall be available for review or audit by
appropriate officials of the Federal agency, the State, and the Government Accountability Office.
5.3 Subrecipient Compliance Responsibility. Subrecipient shall procure or otherwise arrange for the audit
required by Part F of the Uniform Guidance and ensure it is properly performed and submitted when due
in accordance with the Uniform Guidance. Subrecipient shall prepare appropriate financial statements,
including the schedule of expenditures of Federal awards in accordance with Uniform Guidance
§200.510 (Financial statements) and provide the auditor with access to personnel, accounts, books,
records, supporting documentation, and other information as needed for the auditor to perform the audit
required by Uniform Guidance Part F -Audit Requirements.
Exhibit M — Page 2 of 5
6. Contract Provisions for Subrecipient Contracts. Subrecipient shall comply with and
shall include all of the following applicable provisions in all subcontracts entered into
by it pursuant to this Grant Agreement.
6.1 Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts
that meet the definition of "federally assisted construction contract" in 41 CFR Part 60-1.3 shall include
the equal opportunity clause provided under 41 CFR 60-1.4(b), in accordance with Executive Order
11246, "Equal Employment Opportunity" (30 FR 12319, 12935, 3 CFR Part, 1964-1965 Comp., p. 339),
as amended by Executive Order 11375, "Amending Executive Order 11246 Relating to Equal
Employment Opportunity," and implementing regulations at 41 CFR part 60, "Office of Federal Contract
Compliance Programs, Equal Employment Opportunity, Department of Labor."
"During the performance of this contract, the contractor agrees as follows:
(1) The contractor will not discriminate against any employee or applicant for employment because
of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that
applicants are employed, and that employees are treated during employment, without regard to their race,
color, religion, sex, or national origin. Such action shall include, but not be limited to the following:
Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training, including
apprenticeship. The contractor agrees to post in conspicuous places, available to employees and
applicants for employment, notices to be provided by the contracting officer setting forth the provisions
of this nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf
of the contractor, state that all qualified applicants will receive consideration for employment without
regard to race, color, religion, sex, or national origin.
(3) The contractor will send to each labor union or representative of workers with which he has a
collective bargaining agreement or other contract or understanding, a notice to be provided by the agency
contracting officer, advising the labor union or workers' representative of the contractor's commitments
under section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in
conspicuous places available to employees and applicants for employment.
(4) The contractor will comply with all provisions of Executive Order 11246 of September 24,
1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
(5) The contractor will furnish all information and reports required by Executive Order 11246 of
September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant
thereto, and will permit access to his books, records, and accounts by the contracting agency and the
Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and
orders.
(6) In the event of the contractor's non-compliance with the nondiscrimination clauses of this
contract or with any of such rules, regulations, or orders, this contract may be canceled, terminated or
suspended in whole or in part and the contractor may be declared ineligible for further Government
contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965,
and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of
September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided
by law.
(7) The contractor will include the provisions of paragraphs (1) through (7) in every subcontract or
purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant
to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding
upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract
or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions
including sanctions for noncompliance: Provided, however, that in the event the contractor becomes
involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction,
Exhibit M — Page 3 of 5
the contractor may request the United States to enter into such litigation to protect the interests of the
United States."
4.2 Davis -Bacon Act. Davis -Bacon Act, as amended (40 U.S.C. 3141-3148). When required by Federal
program legislation, all prime construction contracts in excess of $2,000 awarded by non -Federal entities
must include a provision for compliance with the Davis -Bacon Act (40 U.S.C. 3141-3144, and 3146-
3148) as supplemented by Department of Labor regulations (29 CFR Part 5, "Labor Standards Provisions
Applicable to Contracts Covering Federally Financed and Assisted Construction"). In accordance with
the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the
prevailing wages specified in a wage determination made by the Secretary of Labor. In addition,
contractors must be required to pay wages not less than once a week. The non -Federal entity must place
a copy of the current prevailing wage determination issued by the Department of Labor in each
solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of
the wage determination. The non -Federal entity must report all suspected or reported violations to the
Federal awarding agency. The contracts must also include a provision for compliance with the Copeland
"Anti -Kickback" Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR
Part 3, "Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part
by Loans or Grants from the United States"). The Act provides that each contractor or Subrecipient must
be prohibited from inducing, by any means, any person employed in the construction, completion, or
repair of public work, to give up any part of the compensation to which he or she is otherwise entitled.
The non -Federal entity must report all suspected or reported violations to the Federal awarding agency.
4.3 Rights to Inventions Made Under a Contract or Agreement. If the Federal Award meets the
definition of "funding agreement" under 37 CFR §401.2 (a) and Subrecipient wishes to enter into a
contract with a small business firm or nonprofit organization regarding the substitution of parties,
assignment or performance of experimental, developmental, or research work under that "funding
agreement," Subrecipient must comply with the requirements of 37 CFR Part 401, "Rights to Inventions
Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and
Cooperative Agreements," and any implementing regulations issued by the awarding agency.
4.4 Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C.
1251-1387), as amended. Contracts and subgrants of amounts in excess of $150,000 must contain a
provision that requires the non -Federal award to agree to comply with all applicable standards, orders or
regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution
Control Act as amended (33 U.S.C. 1251-1387). Violations must be reported to the Federal awarding
agency and the Regional Office of the Environmental Protection Agency (EPA).
4.5 Debarment and Suspension (Executive Orders 12549 and 12689). A contract award (see 2 CFR
180.220) must not be made to parties listed on the government wide exclusions in the System for Award
Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive
Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235),
"Debarment and Suspension." SAM Exclusions contains the names of parties debarred, suspended, or
otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory
authority other than Executive Order 12549.
4.6 Byrd Anti -Lobbying Amendment (31 U.S.C. 1352). Contractors that apply or bid for an award
exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will
not and has not used Federal appropriated funds to pay any person or organization for influencing or
attempting to influence an officer or employee of any agency, a member of Congress, officer or
employee of Congress, or an employee of a member of Congress in connection with obtaining any
Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any
lobbying with non -Federal funds that takes place in connection with obtaining any Federal award. Such
disclosures are forwarded from tier to tier up to the non -Federal award.
7. Certifications. Unless prohibited by Federal statutes or regulations, Recipient may require Subrecipient to
submit certifications and representations required by Federal statutes or regulations on an annual basis. 2 CFR
§200.208. Submission may be required more frequently if Subrecipient fails to meet a requirement of the
Federal award. Subrecipient shall certify in writing to the State at the end of the Award that the project or
Exhibit M — Page 4 of 5
activity was completed or the level of effort was expended. 2 CFR §200.201(3). If the required level of
activity or effort was not carried out, the amount of the Award must be adjusted.
8. Event of Default. Failure to comply with these Uniform Guidance Supplemental Provisions shall constitute an
event of default under the Grant Agreement (2 CFR §200.339) and the State may terminate the Grant upon 30
days prior written notice if the default remains uncured five calendar days following the termination of the 30
day notice period. This remedy will be in addition to any other remedy available to the State of Colorado under
the Grant, at law or in equity.
9. Effective Date. The effective date of the Uniform Guidance is December 26, 2013. 2 CFR §200.110. The
procurement standards set forth in Uniform Guidance §§200.317-200.326 are applicable to new Awards made
by Recipient as of December 26, 2015. The standards set forth in Uniform Guidance Subpart F -Audit
Requirements are applicable to audits of fiscal years beginning on or after December 26, 2014.
10. Performance Measurement
The Uniform Guidance requires completion of OMB -approved standard information collection forms (the
PPR). The form focuses on outcomes, as related to the Federal Award Performance Goals that awarding
Federal agencies are required to detail in the Awards.
Section 200.301 provides guidance to Federal agencies to measure performance in a way that will help the
Federal awarding agency and other non -Federal entities to improve program outcomes.
The Federal awarding agency is required to provide recipients with clear performance goals, indicators, and
milestones (200.210). Also, must require the recipient to relate financial data to performance accomplishments of
the Federal award.
Exhibit M — Page 5 of 5