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HomeMy WebLinkAbout2017-01 Amendment to IGA Amendment with CDOT for Town of Vail Water QualityRESOLUTION NO. 1 Series of 2017 A RESOLUTION APPROVING AN AMENDMENT TO INTERGOVERNMENTAL AGREEMENT BETWEEN THE TOWN OF VAIL AND THE COLORADO DEPARTMENT OF TRANSPORTATION REGARDING 1-70 MP 180-182 — VAIL WATER QUALITY— TOWN OF VAIL; 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 currently has budgeted the required local match; and WHEREAS, the Federal Highway Administration (the "FHWA ") allocates funds for local transportation projects; and WHEREAS, the Town is requesting FHWA funds for the construction of the 1-70 MP 180-182 - Vail Water Quality— Town of Vail (the "Project "); and WHEREAS, the Colorado Department of Transportation ("CDOT ") is responsible for the general administration and supervision of performance by the Town for the Project: and WHEREAS, the Town and CDOT wish to enter into an Intergovernmental Agreement (the "IGA ") authorizing the construction of the Project; and WHEREAS, the Council finds and determines that IGA is necessary and will promote the health, safety, morals, and general welfare of the Town; and WHEREAS, the Council's approval of Resolution No. 1, 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 re Town of Vail held this 3rd day of January, 2017. To n Council of the Project:I-70 MP 180 - 182 PWQ TAP 0702-376 (21752) Region: 3 (JH) OLA #: 331001569 Routing #: 17-HA3-XC-00064 (FMLAWRK) Rev. 7/8/09 STATE OF COLORADO Department of Transportation Agreement with TOWN OF VAIL TABLE OF CONTENTS 1. PARTIES 2 2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY 2 3. RECITALS 2 4. DEFINITIONS 2 5. TERM AND EARLY TERMINATION 3 6. SCOPE OF WORK 3 7. OPTION LETTER MODIFICATION 6 8. PAYMENTS 7 9. ACCOUNTING 9 10. REPORTING - NOTIFICATION 9 11. LOCAL AGENCY RECORDS 10 12. CONFIDENTIAL INFORMATION -STATE RECORDS 10 13. CONFLICT OF INTEREST 11 14. REPRESENTATIONS AND WARRANTIES 11 15. INSURANCE 12 16. DEFAULT -BREACH 13 17. REMEDIES 13 18. NOTICES and REPRESENTATIVES 15 19. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE 15 20. GOVERNMENTAL IMMUNITY 15 21. STATEWIDE CONTRACT MANAGEMENT SYSTEM 15 22. FEDERAL REQUIREMENTS 16 23. DISADVANTAGED BUSINESS ENTERPRISE (DBE) 16 24. DISPUTES 16 25. GENERAL PROVISIONS 16 26. COLORADO SPECIAL PROVISIONS 19 27. SIGNATURE PAGE 21 • 28. EXHIBIT A - SCOPE OF WORK 29. EXHIBIT B - LOCAL AGENCY RESOLUTION 30. EXHIBIT C - FUNDING PROVISIONS 31. EXHIBIT D - OPTION LETTER 32. EXHIBIT E - LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST 33. EXHIBIT F - CERTIFICATION FOR FEDERAL -AID CONTRACTS 34. EXHIBIT G - DISADVANTAGED BUSINESS ENTERPRISE 35. EXHIBIT H - LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES 36. EXHIBIT I - FEDERAL -AID CONTRACT PROVISIONS 37. EXHIBIT J - FEDERAL REQUIREMENTS 38. EXHIBIT K - SUPPLEMENTAL FEDERAL PROVISIONS Document Builder Generated Rev. 12/09/2016 Page 1 of 21 OLA #: 331001569 Routing #: 17-HA3-XC-00064 1. PARTIES THIS AGREEMENT is entered into by and between TOWN OF VAIL (hereinafter called the "Local Agency"), and the STATE OF COLORADO acting by and through the Department of Transportation (hereinafter called the "State" or "CDOT"). 2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY This Agreement shall not be effective or enforceable until it is approved and signed by the Colorado State Controller or their designee (hereinafter called the "Effective Date"). The State shall not be liable to pay or reimburse the Local Agency for any performance hereunder, including, but not limited to costs or expenses incurred, or be bound by any provision hereof prior to the Effective Date. 3. RECITALS A. Authority, Appropriation, and Approval Authority exists in the law and funds have been budgeted, appropriated and otherwise made available and a sufficient unencumbered balance thereof remains available for payment and the required approval, clearance and coordination have been accomplished from and with appropriate agencies. i. Federal Authority Pursuant to Title I, Subtitle A, Section 1108 of the "Transportation Equity Act for the 21st Century" of 1998 (TEA -21) and/or the "Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users" (SAFETEA-LU) of 2005 and to applicable provisions of Title 23 of the United States Code and implementing regulations at Title 23 of the Code of Federal Regulations, as may be amended, (collectively referred to hereinafter as the "Federal Provisions"), certain federal funds have been and are expected to continue to be allocated for transportation projects requested by the Local Agency and eligible under the Surface Transportation Improvement Program that has been proposed by the State and approved by the Federal Highway Administration ("FHWA"). ii. State Authority Pursuant to CRS §43-1-223 and to applicable portions of the Federal Provisions, the State is responsible for the general administration and supervision of performance of projects in the Program, including the administration of federal funds for a Program project performed by a Local Agency under a contract with the State. This Agreement is executed under the authority of CRS §§29-1-203, 43-1-110; 43-1-116, 43-2-101(4)(c) and 43-2-104.5. B. Consideration The Parties acknowledge that the mutual promises and covenants contained herein and other good and valuable consideration are sufficient and adequate to support this Agreement. C. Purpose The purpose of this Agreement is to disburse Federal funds to the Local Agency pursuant to CDOT's Stewardship Agreement with the FHWA. D. References All references in this Agreement to sections (whether spelled out or using the § symbol), subsections, exhibits or other attachments, are references to sections, subsections, exhibits or other attachments contained herein or incorporated as a part hereof, unless otherwise noted. 4. DEFINITIONS The following terms as used herein shall be construed and interpreted as follows: A. Agreement or Contract "Agreement" or "Contract" means this Agreement, its terms and conditions, attached exhibits, documents incorporated by reference under the terms of this Agreement, and any future modifying agreements, exhibits, attachments or references that are incorporated pursuant to Colorado State Fiscal Rules and Policies. B. Agreement Funds "Agreement Funds" means funds payable by the State to Local Agency pursuant to this Agreement. C. Budget "Budget" means the budget for the Work described in Exhibit C. D. Consultant and Contractor "Consultant" means a professional engineer or designer hired by Local Agency to design the Work and "Contractor" means the general construction contractor hired by Local Agency to construct the Work. Document Builder Generated Page 2 of 21 Rev. 12/09/2016 OLA #: 331001569 Routing #: 17-HA3-XC-00064 E Evaluation "Evaluation" means the process of examining the Local Agency's Work and rating it based on criteria established in §6 and Exhibits A and E. F. Exhibits and Other Attachments The following exhibit(s) are attached hereto and incorporated by reference herein: Exhibit A (Scope of Work), Exhibit B (Resolution), Exhibit C (Funding Provisions), Exhibit D (Option Letter), Exhibit E (Checklist), Exhibit F (Certification for Federal -Aid Funds), Exhibit G (Disadvantaged Business Enterprise), Exhibit H (Local Agency Procedures), Exhibit I (Federal -Aid Contract Provisions), Exhibit J (Federal Requirements) and Exhibit K (Supplemental Federal Provisions). G. Goods "Goods" means tangible material acquired, produced, or delivered by the Local Agency either separately or in conjunction with the Services the Local Agency renders hereunder. H. Oversight "Oversight" means the term as it is defined in the Stewardship Agreement between CDOT and the Federal Highway Administration ("FHWA") and as it is defined in the Local Agency Manual. L Party or Parties "Party" means the State or the Local Agency and "Parties" means both the State and the Local Agency J. Work Budget Work Budget means the budget described in Exhibit C. K. Services "Services" means the required services to be performed by the Local Agency pursuant to this Contract. L. Work "Work" means the tasks and activities the Local Agency is required to perform to fulfill its obligations under this Contract and Exhibits A and E, including the performance of the Services and delivery of the Goods. M. Work Product "Work Product" means the tangible or intangible results of the Local Agency's Work, including, but not limited to, software, research, reports, studies, data, photographs, negatives or other finished or unfinished documents, drawings, models, surveys, maps, materials, or work product of any type, including drafts. 5. TERM AND EARLY TERMINATION The Parties' respective performances under this Agreement shall commence on the Effective Date. This Agreement shall terminate after five (5) years of state controllers signature in section 27, unless sooner terminated or completed as demonstrated by final payment and final audit. 6. SCOPE OF WORK A. Completion The Local Agency shall complete the Work and other obligations as described herein in Exhibit A. Work performed prior to the Effective Date or after final acceptance shall not be considered part of the Work. B. Goods and Services The Local Agency shall procure Goods and Services necessary to complete the Work. Such procurement shall be accomplished using the Contract Funds and shall not increase the maximum amount payable hereunder by the State. C. Employees All persons employed hereunder by the Local Agency, or any Consultants or Contractors shall be considered the Local Agency's, Consultants', or Contractors' employee(s) for all purposes and shall not be employees of the State for any purpose. D. State and Local Agency Commitments i. Design If the Work includes preliminary design or final design or design work sheets, or special provisions and estimates (collectively referred to as the "Plans"), the Local Agency shall comply with and be responsible for satisfying the following requirements: a) Perform or provide the Plans to the extent required by the nature of the Work. b) Prepare final design in accordance with the requirements of the latest edition of the American Association of State Highway Transportation Officials (AASHTO) manual or other standard, such as the Uniform Building Code, as approved by the State. Document Builder Generated Page 3 of 21 Rev. 12/09/2016 OLA #: 331001569 Routing #: 17-HA3-XC-00064 c) Prepare provisions and estimates in accordance with the most current version of the State's Roadway and Bridge Design Manuals and Standard Specifications for Road and Bridge Construction or Local Agency specifications if approved by the State. d) Include details of any required detours in the Plans in order to prevent any interference of the construction Work and to protect the traveling public. e) Stamp the Plans produced by a Colorado Registered Professional Engineer. f) Provide final assembly of Plans and all other necessary documents. g) Be responsible for the Plans' accuracy and completeness. h) Make no further changes in the Plans following the award of the construction contract to contractor unless agreed to in writing by the Parties. The Plans shall be considered final when approved in writing by CDOT and when final they shall be incorporated herein. ii. Local Agency Work a) Local Agency shall comply with the requirements of the Americans With Disabilities Act (ADA), and applicable federal regulations and standards as contained in the document "ADA Accessibility Requirements in CDOT Transportation Projects". b) Local Agency shall afford the State ample opportunity to review the Plans and make any changes in the Plans that are directed by the State to comply with FHWA requirements. c) Local Agency may enter into a contract with a Consultant to perform all or any portion of the Plans and/or of construction administration. Provided, however, if federal -aid funds are involved in the cost of such Work to be done by such Consultant, such Consultant contract (and the performance/provision of the Plans under the contract) must comply with all applicable requirements of 23 C.F.R. Part 172 and with any procedures implementing those requirements as provided by the State, including those in Exhibit H. If the Local Agency enters into a contract with a Consultant for the Work: (1) Local Agency shall submit a certification that procurement of any Consultant contract complies with the requirements of 23 C.F.R. 172.5(1) prior to entering into such Consultant contract, subject to the State's approval. If not approved by the State, the Local Agency shall not enter into such Consultant contract. (2) Local Agency shall ensure that all changes in the Consultant contract have prior approval by the State and FHWA and that they are in writing. Immediately after the Consultant contract has been awarded, one copy of the executed Consultant contract and any amendments shall be submitted to the State. (3) Local Agency shall require that all billings under the Consultant contract comply with the State's standardized billing format. Examples of the billing formats are available from the CDOT Agreements Office. (4) Local Agency (and any Consultant) shall comply with 23 C.F.R. 172.5(b) and (d) and use the CDOT procedures described in Exhibit H to administer the Consultant contract. (5) Local Agency may expedite any CDOT approval of its procurement process and/or Consultant contract by submitting a letter to CDOT from the Local Agency's attorney/authorized representative certifying compliance with Exhibit H and 23 C.F.R. 172.5(b)and (d). (6) Local Agency shall ensure that the Consultant contract complies with the requirements of 49 CFR 18.36(i) and contains the following language verbatim: (a) The design work under this Agreement shall be compatible with the requirements of the contract between the Local Agency and the State (which is incorporated herein by this reference) for the design/construction of the project. The State is an intended third -party beneficiary of this agreement for that purpose. (b) Upon advertisement of the project work for construction, the consultant shall make available services as requested by the State to assist the State in the evaluation of construction and the resolution of construction problems that may arise during the construction of the project. (c) The consultant shall review the Construction Contractor's shop drawings for conformance with the contract documents and compliance with the provisions of the State's publication, Standard Specifications for Road and Bridge Construction, in connection with this work. (d) The State, in its sole discretion, may review construction plans, special provisions and estimates and may require the Local Agency to make such changes therein as the State determines necessary to comply with State and FHWA requirements. Document Builder Generated Page 4 of 21 Rev. 12/09/2016 OLA #: 331001569 Routing #: 17-HA3-XC-00064 iii. Construction If the Work includes construction, the Local Agency shall perform the construction in accordance with the approved design plans and/or administer the construction in accordance with Exhibit E. Such administration shall include Work inspection and testing; approving sources of materials; performing required plant and shop inspections; documentation of contract payments, testing and inspection activities; preparing and approving pay estimates; preparing, approving and securing the funding for contract modification orders and minor contract revisions; processing Construction Contractor claims; construction supervision; and meeting the Quality Control requirements of the FHWA/CDOT Stewardship Agreement, as described in the Local Agency Contract Administration Checklist. a) If the Local Agency is performing the Work, the State may, after providing written notice of the reason for the suspension to the Local Agency, suspend the Work, wholly or in part, due to the failure of the Local Agency or its Contractor to correct conditions which are unsafe for workers or for such periods as the State may deem necessary due to unsuitable weather, or for conditions considered unsuitable for the prosecution of the Work, or for any other condition or reason deemed by the State to be in the public interest. b) The Local Agency shall be responsible for the following: (1) Appointing a qualified professional engineer, licensed in the State of Colorado, as the Local Agency Project Engineer (LAPE), to perform engineering administration. The LAPE shall administer the Work in accordance with this Agreement, the requirements of the construction contract and applicable State procedures. (2) For the construction of the Work, advertising the call for bids upon approval by the State and awarding the construction contract(s) to the low responsible bidder(s). (a) All advertising and bid awards, pursuant to this agreement, by the Local Agency shall comply with applicable requirements of 23 U.S.C. §112 and 23 C.F.R. Parts 633 and 635 and C.R.S. § 24-92-101 et seq. Those requirements include, without limitation, that the Local Agency and its Contractor shall incorporate Form 1273 (Exhibit 1) in its entirety verbatim into any subcontract(s) for those services as terms and conditions therefore, as required by 23 C.F.R. 633.102(e). (b) The Local Agency may accept or reject the proposal of the apparent low bidder for Work on which competitive bids have been received. The Local Agency must accept or reject such bid within three (3) working days after they are publicly opened. (c) As part of accepting bid awards, the Local Agency shall provide additional funds, subject to their availability and appropriation, necessary to complete the Work if no additional federal -aid funds are available. (3) The requirements of this §6(D)(iii)(c)(2) also apply to any advertising and awards made by the State. (4) If all or part of the Work is to be accomplished by the Local Agency's personnel (i.e. by force account) rather than by a competitive bidding process, the Local Agency shall perform such work in accordance with pertinent State specifications and requirements of 23 C.F.R. 635, Subpart B, Force Account Construction. (a) Such Work will normally be based upon estimated quantities and firm unit prices agreed to between the Local Agency, the State and FHWA in advance of the Work, as provided for in 23 C.F.R. 635.204(c). Such agreed unit prices shall constitute a commitment as to the value of the Work to be performed. (b) An alternative to the preceding subsection is that the Local Agency may agree to participate in the Work based on actual costs of labor, equipment rental, materials supplies and supervision necessary to complete the Work. Where actual costs are used, eligibility of cost items shall be evaluated for compliance with 48 C.F.R. Part 31. (c) If the State provides matching funds under this Agreement, rental rates for publicly owned equipment shall be determined in accordance with the State's Standard Specifications for Road and Bridge Construction § 109.04. (d) All Work being paid under force account shall have prior approval of the State and/or FHWA and shall not be initiated until the State has issued a written notice to proceed. E. State's Commitments a) The State will perform a final project inspection of the Work as a quality control/assurance activity. When all Work has been satisfactorily completed, the State will sign the FHWA Form 1212. Document Builder Generated Page 5 of 21 Rev. 12/09/2016 OLA #: 331001569 Routing #: 17-HA3-XC-00064 b) Notwithstanding any consents or approvals given by the State for the Plans, the State shall not be liable or responsible in any manner for the structural design, details or construction of any major structures designed by, or that are the responsibility of, the Local Agency as identified in the Local Agency Contract Administration Checklist, Exhibit E. F. ROW and Acquisition/Relocation a) If the Local Agency purchases a right of way for a State highway, including areas of influence, the Local Agency shall immediately convey title to such right of way to CDOT after the Local Agency obtains title. b) Any acquisition/relocation activities shall comply with all applicable federal and state statutes and regulations, including but not limited to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 as amended and the Uniform Relocation Assistance and Real Property Acquisition Policies for Federal and Federally Assisted Programs as amended (49 C.F.R. Part 24), CDOT's Right of Way Manual, and CDOT's Policy and Procedural Directives. c) The Parties' respective compliance responsibilities depend on the level of federal participation; provided however, that the State always retains Oversight responsibilities. d) The Parties' respective responsibilities under each level in CDOT's Right of Way Manual (located at http://www.dot.state.co.us/ROW_Manual/) and reimbursement for the levels will be under the following categories: (1) Right of way acquisition (3111) for federal participation and non -participation; (2) Relocation activities, if applicable (3109); (3) Right of way incidentals, if applicable (expenses incidental to acquisition/relocation of right of way — 3114). G. Utilities If necessary, the Local Agency shall be responsible for obtaining the proper clearance or approval from any utility company which may become involved in the Work. Prior to the Work being advertised for bids, the Local Agency shall certify in writing to the State that all such clearances have been obtained. a) Railroads If the Work involves modification of a railroad company's facilities and such modification will be accomplished by the railroad company, the Local Agency shall make timely application to the Public Utilities commission requesting its order providing for the installation of the proposed improvements and not proceed with that part of the Work without compliance. The Local Agency shall also establish contact with the railroad company involved for the purpose of complying with applicable provisions of 23 C.F.R. 646, subpart B, concerning federal -aid projects involving railroad facilities and: b) Execute an agreement setting out what work is to be accomplished and the location(s) thereof, and which costs shall be eligible for federal participation. c) Obtain the railroad's detailed estimate of the cost of the Work. d) Establish future maintenance responsibilities for the proposed installation. e) Proscribe future use or dispositions of the proposed improvements in the event of abandonment or elimination of a grade crossing. f) Establish future repair and/or replacement responsibilities in the event of accidental destruction or damage to the installation. H. Environmental Obligations The Local Agency shall perform all Work in accordance with the requirements of the current federal and state environmental regulations including the National Environmental Policy Act of 1969 (NEPA) as applicable. I. Maintenance Obligations The Local Agency shall maintain and operate the Work constructed under this Agreement at its own cost and expense during their useful life, in a manner satisfactory to the State and FHWA, and the Local Agency shall provide for such maintenance and operations obligations each year. Such maintenance and operations shall be conducted in accordance with all applicable statutes, ordinances and regulations pertaining to maintaining such improvements. The State and FHWA may make periodic inspections to verify that such improvements are being adequately maintained. 7. OPTION LETTER MODIFICATION Document Builder Generated Page 6 of 21 Rev. 12/09/2016 OLA #: 331001569 Routing #: 17-HA3-XC-00064 An option letter may be used to add a phase without increasing total budgeted funds, increase or decrease the encumbrance amount as shown on Exhibit C, and/or transfer funds from one phase to another. Option letter modification is limited to the specific scenarios listed below. The option letter shall not be deemed valid until signed by the State Controller or an authorized delegate. A. Option to add a phase and/or increase or decrease the total encumbrance amount. The State may require the Local Agency to begin a phase that may include Design, Construction, Environmental, Utilities, ROW Incidentals or Miscellaneous (this does not apply to Acquisition/Relocation or Railroads) as detailed in Exhibit A and at the same terms and conditions stated in the original Agreement, with the total budgeted funds remaining the same. The State may simultaneously increase and/or decrease the total encumbrance amount by replacing the original funding exhibit (Exhibit C) in the original Agreement with an updated Exhibit C-1 (subsequent exhibits to Exhibit C-1 shall be labeled C-2, C-3, etc). The State may exercise this option by providing a fully executed option to the Local Agency within thirty (30) days before the initial targeted start date of the phase, in a form substantially equivalent to Exhibit D. If the State exercises this option, the Agreement will be considered to include this option provision. B. Option to transfer funds from one phase to another phase. The State may require or permit the Local Agency to transfer funds from one phase (Design, Construction, Environmental, Utilities, ROW Incidentals or Miscellaneous) to another as a result of changes to state, federal, and local match. The original funding exhibit (Exhibit C) in the original Agreement will be replaced with an updated Exhibit C-1 (subsequent exhibits to Exhibit C-1 shall be labeled C-2, C-3, etc.) and attached to the option letter. The funds transferred from one phase to another are subject to the same terms and conditions stated in the original Agreement with the total budgeted funds remaining the same. The State may unilaterally exercise this option by providing a fully executed option to the Local Agency within thirty (30) days before the initial targeted start date of the phase, in a form substantially equivalent to Exhibit D. Any transfer of funds from one phase to another is limited to an aggregate maximum of 24.99% of the original dollar amount of either phase affected by a transfer. A bilateral amendment is required for any transfer exceeding 24.99% of the original dollar amount of the phase affected by the increase or decrease. C. Option to do both Options A and B. The State may require the Local Agency to add a phase as detailed in Exhibit A, and encumber and transfer funds from one phase to another. The original funding exhibit (Exhibit C) in the original Agreement will be replaced with an updated Exhibit C-1 (subsequent exhibits to Exhibit C-1 shall be labeled C-2, C-3, etc.) and attached to the option letter. The addition of a phase and encumbrance and transfer of funds are subject to the same terms and conditions stated in the original Agreement with the total budgeted funds remaining the same. The State may unilaterally exercise this option by providing a fully executed option to the Local Agency within thirty (30) days before the initial targeted start date of the phase, in a form substantially equivalent to Exhibit D. 8. PAYMENTS The State shall, in accordance with the provisions of this §8, pay the Local Agency in the amounts and using the methods set forth below: A. Maximum Amount The maximum amount payable is set forth in Exhibit C as determined by the State from available funds. Payments to the Local Agency are limited to the unpaid encumbered balance of the Contract set forth in Exhibit C. The Local Agency shall provide its match share of the costs as evidenced by an appropriate ordinance/resolution or other authority letter which expressly authorizes the Local Agency the authority to enter into this Agreement and to expend its match share of the Work. A copy of such ordinance/resolution or authority letter is attached hereto as Exhibit B. B. Payment i. Advance, Interim and Final Payments Any advance payment allowed under this Contract or in Exhibit C shall comply with State Fiscal Rules and be made in accordance with the provisions of this Contract or such Exhibit. The Local Agency shall initiate any payment requests by submitting invoices to the State in the form and manner approved by the State. ii. Interest Document Builder Generated Page 7 of 21 Rev. 12/09/2016 OLA #: 331001569 Routing #: 17-HA3-XC-00064 The State shall fully pay each invoice within 45 days of receipt thereof if the amount invoiced represents performance by the Local Agency previously accepted by the State. Uncontested amounts not paid by the State within 45 days shall bear interest on the unpaid balance beginning on the 46th day at a rate not to exceed one percent per month until paid in full; provided, however, that interest shall not accrue on unpaid amounts that are subject to a good faith dispute. The Local Agency shall invoice the State separately for accrued interest on delinquent amounts. The billing shall reference the delinquent payment, the number of days interest to be paid and the interest rate. iii. Available Funds -Contingency -Termination The State is prohibited by law from making commitments beyond the term of the State's current fiscal year. Therefore, the Local Agency's compensation beyond the State's current Fiscal Year is contingent upon the continuing availability of State appropriations as provided in the Colorado Special Provisions. The State's performance hereunder is also contingent upon the continuing availability of federal funds. Payments pursuant to this Contract shall be made only from available funds encumbered for this Contract and the State's liability for such payments shall be limited to the amount remaining of such encumbered funds. If State or federal funds are not appropriated, or otherwise become unavailable to fund this Contract, the State may terminate this Contract immediately, in whole or in part, without further liability in accordance with the provisions hereof. iv. Erroneous Payments At the State's sole discretion, payments made to the Local Agency in error for any reason, including, but not limited to overpayments or improper payments, and unexpended or excess funds received by the Local Agency, may be recovered from the Local Agency by deduction from subsequent payments under this Contract or other contracts, Agreements or agreements between the State and the Local Agency or by other appropriate methods and collected as a debt due to the State. Such funds shall not be paid to any party other than the State. C. Use of Funds Contract Funds shall be used only for eligible costs identified herein. D. Matching Funds The Local Agency shall provide matching funds as provided in §8.A. and Exhibit C. The Local Agency shall have raised the full amount of matching funds prior to the Effective Date and shall report to the State regarding the status of such funds upon request. The Local Agency's obligation to pay all or any part of any matching funds, whether direct or contingent, only extend to funds duly and lawfully appropriated for the purposes of this Agreement by the authorized representatives of the Local Agency and paid into the Local Agency's treasury. The Local Agency represents to the State that the amount designated "Local Agency Matching Funds" in Exhibit C has been legally appropriated for the purpose of this Agreement by its authorized representatives and paid into its treasury. The Local Agency does not by this Agreement irrevocably pledge present cash reserves for payments in future fiscal years, and this Agreement is not intended to create a multiple -fiscal year debt of the Local Agency. The Local Agency shall not pay or be liable for any claimed interest, late charges, fees, taxes or penalties of any nature, except as required by the Local Agency's laws or policies. E. Reimbursement of Local Agency Costs The State shall reimburse the Local Agency's allowable costs, not exceeding the maximum total amount described in Exhibit C and §8. The applicable principles described in 49 C.F.R. 18 Subpart C and 49 C.F.R. 18.22 shall govern the State's obligation to reimburse all costs incurred by the Local Agency and submitted to the State for reimbursement hereunder, and the Local Agency shall comply with all such principles. The State shall reimburse the Local Agency for the federal -aid share of properly documented costs related to the Work after review and approval thereof, subject to the provisions of this Agreement and Exhibit C. However, any costs incurred by the Local Agency prior to the date of FHWA authorization for the Work and prior to the Effective Date shall not be reimbursed absent specific FHWA and State Controller approval thereof. Costs shall be: i. Reasonable and Necessary Reasonable and necessary to accomplish the Work and for the Goods and Services provided. ii. Net Cost Actual net cost to the Local Agency (i.e. the price paid minus any items of value received by the Local Agency that reduce the cost actually incurred). Document Builder Generated Rev. 12/09/2016 Page 8 of 21 OLA #: 331001569 Routing #: 17-HA3-XC-00064 9. ACCOUNTING The Local Agency shall establish and maintain accounting systems in accordance with generally accepted accounting standards (a separate set of accounts, or as a separate and integral part of its current accounting scheme). Such accounting systems shall, at a minimum, provide as follows: A. Local Agency Performing the Work If Local Agency is performing the Work, all allowable costs, including any approved services contributed by the Local Agency or others, shall be documented using payrolls, time records, invoices, contracts, vouchers, and other applicable records. B. Local Agency -Checks or Draws Checks issued or draws made by the Local Agency shall be made or drawn against properly signed vouchers detailing the purpose thereof. All checks, payrolls, invoices, contracts, vouchers, orders, and other accounting documents shall be on file in the office of the Local Agency, clearly identified, readily accessible, and to the extent feasible, kept separate and apart from all other Work documents. C. State -Administrative Services The State may perform any necessary administrative support services required hereunder. The Local Agency shall reimburse the State for the costs of any such services from the Budget as provided for in Exhibit C. If FHWA funding is not available or is withdrawn, or if the Local Agency terminates this Agreement prior to the Work being approved or completed, then all actual incurred costs of such services and assistance provided by the State shall be the Local Agency's sole expense. D. Local Agency -Invoices The Local Agency's invoices shall describe in detail the reimbursable costs incurred by the Local Agency for which it seeks reimbursement, the dates such costs were incurred and the amounts thereof, and shall not be submitted more often than monthly. E. Invoicing Within 60 Days The State shall not be liable to reimburse the Local Agency for any costs unless CDOT receives such invoices within 60 days after the date for which payment is requested, including final invoicing. Final payment to the Local Agency may be withheld at the discretion of the State until completion of final audit. Any costs incurred by the Local Agency that are not allowable under 49 C.F.R. 18 shall be reimbursed by the Local Agency, or the State may offset them against any payments due from the State to the Local Agency. F. Reimbursement of State Costs CDOT shall perform Oversight and the Local Agency shall reimburse CDOT for its related costs. The Local Agency shall pay invoices within 60 days after receipt thereof. If the Local Agency fails to remit payment within 60 days, at CDOT's request, the State is authorized to withhold an equal amount from future apportionment due the Local Agency from the Highway Users Tax Fund and to pay such funds directly to CDOT. Interim funds shall be payable from the State Highway Supplementary Fund (400) until CDOT is reimbursed. If the Local Agency fails to make payment within 60 days, it shall pay interest to the State at a rate of one percent per month on the delinquent amounts until the billing is paid in full. CDOT's invoices shall describe in detail the reimbursable costs incurred, the dates incurred and the amounts thereof, and shall not be submitted more often than monthly. 10. REPORTING - NOTIFICATION Reports, Evaluations, and Reviews required under this §10 shall be in accordance with the procedures of and in such form as prescribed by the State and in accordance with §18, if applicable. A. Performance, Progress, Personnel, and Funds The Local Agency shall submit a report to the State upon expiration or sooner termination of this Agreement, containing an Evaluation and Review of the Local Agency's performance and the final status of the Local Agency's obligations hereunder. B. Litigation Reporting Within 10 days after being served with any pleading related to this Agreement, in a legal action filed with a court or administrative agency, the Local Agency shall notify the State of such action and deliver copies of such pleadings to the State's principal representative as identified herein. If the State or its principal representative is not then serving, such notice and copies shall be delivered to the Executive Director of CDOT. Document Builder Generated Page 9 of 21 Rev. 12/09/2016 OLA #: 331001569 Routing #: 17-HA3-XC-00064 C. Noncompliance The Local Agency's failure to provide reports and notify the State in a timely manner in accordance with this §10 may result in the delay of payment of funds and/or termination as provided under this Agreement. D. Documents Upon request by the State, the Local Agency shall provide the State, or its authorized representative, copies of all documents, including contracts and subcontracts, in its possession related to the Work. 11. LOCAL AGENCY RECORDS A. Maintenance The Local Agency shall make, keep, maintain, and allow inspection and monitoring by the State of a complete file of all records, documents, communications, notes and other written materials, electronic media files, and communications, pertaining in any manner to the Work or the delivery of Services (including, but not limited to the operation of programs) or Goods hereunder. The Local Agency shall maintain such records until the last to occur of the following: (i) a period of three years after the date this Agreement is completed or terminated, or (ii) three years after final payment is made hereunder, whichever is later, or (iii) for such further period as may be necessary to resolve any pending matters, or (iv) if an audit is occurring, or the Local Agency has received notice that an audit is pending, then until such audit has been completed and its findings have been resolved (collectively, the "Record Retention Period"). B. Inspection The Local Agency shall permit the State, the federal government and any other duly authorized agent of a governmental agency to audit, inspect, examine, excerpt, copy and/or transcribe the Local Agency's records related to this Agreement during the Record Retention Period to assure compliance with the terms hereof or to evaluate the Local Agency's performance hereunder. The State reserves the right to inspect the Work at all reasonable times and places during the term of this Agreement, including any extension. If the Work fails to conform to the requirements of this Agreement, the State may require the Local Agency promptly to bring the Work into conformity with Agreement requirements, at the Local Agency's sole expense. If the Work cannot be brought into conformance by re -performance or other corrective measures, the State may require the Local Agency to take necessary action to ensure that future performance conforms to Agreement requirements and may exercise the remedies available under this Agreement at law or in equity in lieu of or in conjunction with such corrective measures. C. Monitoring The Local Agency also shall permit the State, the federal government or any other duly authorized agent of a governmental agency, in their sole discretion, to monitor all activities conducted by the Local Agency pursuant to the terms of this Agreement using any reasonable procedure, including, but not limited to: internal evaluation procedures, examination of program data, special analyses, on-site checking, formal audit examinations, or any other procedures. All such monitoring shall be performed in a manner that shall not unduly interfere with the Local Agency's performance hereunder. D. Final Audit Report If an audit is performed on the Local Agency's records for any fiscal year covering a portion of the term of this Agreement, the Local Agency shall submit a copy of the final audit report to the State or its principal representative at the address specified herein. 12. CONFIDENTIAL INFORMATION -STATE RECORDS The Local Agency shall comply with the provisions of this §12 if it becomes privy to confidential information in connection with its performance hereunder. Confidential information, includes, but is not necessarily limited to, state records, personnel records, and information concerning individuals. Nothing in this §12 shall be construed to require the Local Agency to violate the Colorado Open Records Act, C.R.S. § 24-72-101 et seq. A. Confidentiality The Local Agency shall keep all State records and information confidential at all times and to comply with all laws and regulations concerning confidentiality of information. Any request or demand by a third party for State records and information in the possession of the Local Agency shall be immediately forwarded to the State's principal representative. B. Notification Document Builder Generated Page 10 of 21 Rev. 12/09/2016 OLA #: 331001569 Routing #: 17-HA3-XC-00064 The Local Agency shall notify its agents, employees, and assigns who may come into contact with State records and confidential information that each is subject to the confidentiality requirements set forth herein, and shall provide each with a written explanation of such requirements before they are permitted to access such records and information. C. Use, Security, and Retention Confidential information of any kind shall not be distributed or sold to any third party or used by the Local Agency or its agents in any way, except as authorized by the Agreement and as approved by the State. The Local Agency shall provide and maintain a secure environment that ensures confidentiality of all State records and other confidential information wherever located. Confidential information shall not be retained in any files or otherwise by the Local Agency or its agents, except as set forth in this Agreement and approved by the State. D. Disclosure -Liability Disclosure of State records or other confidential information by the Local Agency for any reason may be cause for legal action by third parties against the Local Agency, the State or their respective agents. The Local Agency is prohibited from providing indemnification to the State pursuant to the Constitution of the State of Colorado, Article XI, Section 1, however, the Local Agency shall be responsible for any and all claims, damages, liability and court awards including costs, expenses, and attorney fees and related costs, incurred as a result of any act or omission by the Local Agency, or its employees, agents, or assignees pursuant to this §12. 13. CONFLICT OF INTEREST The Local Agency shall not engage in any business or personal activities or practices or maintain any relationships which conflict in any way with the full performance of the Local Agency's obligations hereunder. The Local Agency acknowledges that with respect to this Agreement even the appearance of a conflict of interest is harmful to the State's interests. Absent the State's prior written approval, the Local Agency shall refrain from any practices, activities or relationships that reasonably appear to be in conflict with the full performance of the Local Agency's obligations to the State hereunder. If a conflict or appearance exists, or if the Local Agency is uncertain whether a conflict or the appearance of a conflict of interest exists, the Local Agency shall submit to the State a disclosure statement setting forth the relevant details for the State's consideration. Failure to promptly submit a disclosure statement or to follow the State's direction in regard to the apparent conflict constitutes a breach of this Agreement. 14. REPRESENTATIONS AND WARRANTIES The Local Agency makes the following specific representations and warranties, each of which was relied on by the State in entering into this Agreement. A. Standard and Manner of Performance The Local Agency shalt perform its obligations hereunder, including in accordance with the highest professional standard of care, skill and diligence and in the sequence and manner set forth in this Agreement. B. Legal Authority — The Local Agency and the Local Agency's Signatory The Local Agency warrants that it possesses the legal authority to enter into this Agreement and that it has taken all actions required by its procedures, by-laws, and/or applicable laws to exercise that authority, and to lawfully authorize its undersigned signatory to execute this Agreement, or any part thereof, and to bind the Local Agency to its terms. If requested by the State, the Local Agency shall provide the State with proof of the Local Agency's authority to enter into this Agreement within 15 days of receiving such request. C. Licenses, Permits, Etc. The Local Agency represents and warrants that as of the Effective Date it has, and that at all times during the term hereof it shall have, at its sole expense, all licenses, certifications, approvals, insurance, permits, and other authorization required by law to perform its obligations hereunder. The Local Agency warrants that it shall maintain all necessary licenses, certifications, approvals, insurance, permits, and other authorizations required to properly perform this Agreement, without reimbursement by the State or other adjustment in Agreement Funds. Additionally, all employees and agents of the Local Agency performing Services under this Agreement shall hold all required licenses or certifications, if any, to perform their responsibilities. The Local Agency, if a foreign corporation or other foreign entity transacting business in the State of Colorado, further warrants that it currently has obtained and shall maintain any applicable certificate of authority to transact business in the State of Colorado and has designated a registered agent in Colorado to accept service Document Builder Generated Page 11 of 21 Rev. 12/09/2016 OLA #: 331001569 Routing #: 17-HA3-XC-00064 of process. Any revocation, withdrawal or non -renewal of licenses, certifications, approvals, insurance, permits or any such similar requirements necessary for the Local Agency to properly perform the terms of this Agreement shall be deemed to be a material breach by the Local Agency and constitute grounds for termination of this Agreement. 15. INSURANCE The Local Agency and its contractors shall obtain and maintain insurance as specified in this section at all times during the term of this Agreement: All policies evidencing the insurance coverage required hereunder shall be issued by insurance companies satisfactory to the Local Agency and the State. A. The Local Agency i. Public Entities If the Local Agency is a "public entity" within the meaning of the Colorado Governmental Immunity Act, CRS §24-10-101, et seq., as amended (the "GIA"), then the Local Agency shall maintain at all times during the term of this Agreement such liability insurance, by commercial policy or self-insurance, as is necessary to meet its liabilities under the GIA. The Local Agency shall show proof of such insurance satisfactory to the State, if requested by the State. The Local Agency shall require each Agreement with their Consultant and Contractor, that are providing Goods or Services hereunder, to include the insurance requirements necessary to meet Consultant or Contractor liabilities under the GIA. ii. Non -Public Entities If the Local Agency is not a "public entity" within the meaning of the Governmental Immunity Act, the Local Agency shall obtain and maintain during the term of this Agreement insurance coverage and policies meeting the same requirements set forth in § 15(B) with respect to sub -contractors that are not "public entities". B. Contractors The Local Agency shall require each contract with Contractors, Subcontractors, or Consultants, other than those that are public entities, providing Goods or Services in connection with this Agreement, to include insurance requirements substantially similar to the following: i. Worker's Compensation Worker's Compensation Insurance as required by State statute, and Employer's Liability Insurance covering all of the Local Agency's Contractors, Subcontractors, or Consultant's employees acting within the course and scope of their employment. ii. General Liability Commercial General Liability Insurance written on ISO occurrence form CG 00 01 10/93 or equivalent, covering premises operations, fire damage, independent contractors, products and completed operations, blanket liability, personal injury, and advertising liability with minimum limits as follows: (a) $1,000,000 each occurrence; (b) $1,000,000 general aggregate; (c) $1,000,000 products and completed operations aggregate; and (d) $50,000 any one fire. If any aggregate limit is reduced below $1,000,000 because of claims made or paid, contractors, subcontractors, and consultants shall immediately obtain additional insurance to restore the full aggregate limit and furnish to the Local Agency a certificate or other document satisfactory to the Local Agency showing compliance with this provision. iii. Automobile Liability Automobile Liability Insurance covering any auto (including owned, hired and non -owned autos) with a minimum limit of $1,000,000 each accident combined single limit. iv. Additional Insured The Local Agency and the State shall be named as additional insured on the Commercial General Liability policies (leases and construction contracts require additional insured coverage for completed operations on endorsements CG 2010 11/85, CG 2037, or equivalent). v. Primacy of Coverage Coverage required of the Consultants or Contractors shall be primary over any insurance or self- insurance program carried by the Local Agency or the State. vi. Cancellation The above insurance policies shall include provisions preventing cancellation or non -renewal without at least 45 days prior notice to the Local Agency and the State by certified mail. vii. Subrogation Waiver All insurance policies in any way related to this Agreement and secured and maintained by the Local Agency's Consultants or Contractors as required herein shall include clauses stating that each carrier Document Builder Generated Page 12 of 21 Rev. 12/09/2016 OLA #: 331001569 Routing #: 17-HA3-XC-00064 shall waive all rights of recovery, under subrogation or otherwise, against the Local Agency or the State, its agencies, institutions, organizations, officers, agents, employees, and volunteers. C. Certificates The Local Agency and all Contractors, subcontractors, or Consultants shall provide certificates showing insurance coverage required hereunder to the State within seven business days of the Effective Date of this Agreement. No later than 15 days prior to the expiration date of any such coverage, the Local Agency and each contractor, subcontractor, or consultant shall deliver to the State or the Local Agency certificates of insurance evidencing renewals thereof. In addition, upon request by the State at any other time during the term of this Agreement or any sub -contract, the Local Agency and each contractor, subcontractor, or consultant shall, within 10 days of such request, supply to the State evidence satisfactory to the State of compliance with the provisions of this §15. 16. DEFAULT -BREACH A. Defined In addition to any breaches specified in other sections of this Agreement, the failure of either Party to perform any of its material obligations hereunder in whole or in part or in a timely or satisfactory manner constitutes a breach. B Notice and Cure Period In the event of a breach, notice of such shall be given in writing by the aggrieved Party to the other Party in the manner provided in §18. If such breach is not cured within 30 days of receipt of written notice, or if a cure cannot be completed within 30 days, or if cure of the breach has not begun within 30 days and pursued with due diligence, the State may exercise any of the remedies set forth in §17. Notwithstanding anything to the contrary herein, the State, in its sole discretion, need not provide advance notice or a cure period and may immediately terminate this Agreement in whole or in part if reasonably necessary to preserve public safety or to prevent immediate public crisis. 17. REMEDIES If the Local Agency is in breach under any provision of this Agreement, the State shall have all of the remedies listed in this §17 in addition to all other remedies set forth in other sections of this Agreement following the notice and cure period set forth in §16(B). The State may exercise any or all of the remedies available to it, in its sole discretion, concurrently or consecutively. A. Termination for Cause and/or Breach If the Local Agency fails to perform any of its obligations hereunder with such diligence as is required to ensure its completion in accordance with the provisions of this Agreement and in a timely manner, the State may notify the Local Agency of such non-performance in accordance with the provisions herein. If the Local Agency thereafter fails to promptly cure such non-performance within the cure period, the State, at its option, may terminate this entire Agreement or such part of this Agreement as to which there has been delay or a failure to properly perform. Exercise by the State of this right shall not be deemed a breach of its obligations hereunder. The Local Agency shall continue performance of this Agreement to the extent not terminated, if any. i. Obligations and Rights To the extent specified in any termination notice, the Local Agency shall not incur further obligations or render further performance hereunder past the effective date of such notice, and shall terminate outstanding orders and sub -Agreements with third parties. However, the Local Agency shall complete and deliver to the State all Work, Services and Goods not cancelled by the termination notice and may incur obligations as are necessary to do so within this Agreement's terms. At the sole discretion of the State, the Local Agency shall assign to the State all of the Local Agency's right, title, and interest under such terminated orders or sub -Agreements. Upon termination, the Local Agency shall take timely, reasonable and necessary action to protect and preserve property in the possession of the Local Agency in which the State has an interest. All materials owned by the State in the possession of the Local Agency shall be immediately returned to the State. All Work Product, at the option of the State, shall be delivered by the Local Agency to the State and shall become the State's property. ii. Payments The State shall reimburse the Local Agency only for accepted performance received up to the date of termination. If, after termination by the State, it is determined that the Local Agency was not in default Document Builder Generated Page 13 of 21 Rev. 12/09/2016 OLA #: 331001569 Routing #: 17-HA3-XC-00064 or that the Local Agency's action or inaction was excusable, such termination shall be treated as a termination in the public interest and the rights and obligations of the Parties shall be the same as if this Agreement had been terminated in the public interest, as described herein. iii. Damages and Withholding Notwithstanding any other remedial action by the State, the Local Agency also shall remain liable to the State for any damages sustained by the State by virtue of any breach under this Agreement by the Local Agency and the State may withhold any payment to the Local Agency for the purpose of mitigating the State's damages, until such time as the exact amount of damages due to the State from the Local Agency is determined. The State may withhold any amount that may be due to the Local Agency as the State deems necessary to protect the State, including loss as a result of outstanding liens or claims of former lien holders, or to reimburse the State for the excess costs incurred in procuring similar goods or services. The Local Agency shall be liable for excess costs incurred by the State in procuring from third parties replacement Work, Services or substitute Goods as cover. B. Early Termination in the Public Interest The State is entering into this Agreement for the purpose of carrying out the public policy of the State of Colorado, as determined by its Governor, General Assembly, and/or Courts. If this Agreement ceases to further the public policy of the State, the State, in its sole discretion, may terminate this Agreement in whole or in part. Exercise by the State of this right shall not constitute a breach of the State's obligations hereunder. This subsection shall not apply to a termination of this Agreement by the State for cause or breach by the Local Agency, which shall be governed by §17(A) or as otherwise specifically provided for herein. i. Method and Content The State shall notify the Local Agency of the termination in accordance with § 18, specifying the effective date of the termination and whether it affects all or a portion of this Agreement. ii. Obligations and Rights Upon receipt of a termination notice, the Local Agency shall be subject to and comply with the same obligations and rights set forth in §17(A)(i). iii. Payments If this Agreement is terminated by the State pursuant to this §17(B), the Local Agency shall be paid an amount which bears the same ratio to the total reimbursement under this Agreement as the Services satisfactorily performed bear to the total Services covered by this Agreement, less payments previously made. Additionally, if this Agreement is less than 60% completed, the State may reimburse the Local Agency for a portion of actual out-of-pocket expenses (not otherwise reimbursed under this Agreement) incurred by the Local Agency which are directly attributable to the uncompleted portion of the Local Agency's obligations hereunder; provided that the sum of any and all reimbursement shall not exceed the maximum amount payable to the Local Agency hereunder. C. Remedies Not Involving Termination The State, its sole discretion, may exercise one or more of the following remedies in addition to other remedies available to it: i. Suspend Performance Suspend the Local Agency's performance with respect to all or any portion of this Agreement pending necessary corrective action as specified by the State without entitling the Local Agency to an adjustment in price/cost or performance schedule. The Local Agency shall promptly cease performance and incurring costs in accordance with the State's directive and the State shall not be liable for costs incurred by the Local Agency after the suspension of performance under this provision. ii. Withhold Payment Withhold payment to the Local Agency until corrections in the Local Agency's performance are satisfactorily made and completed. iii. Deny Payment Deny payment for those obligations not performed that due to the Local Agency's actions or inactions cannot be performed or, if performed, would be of no value to the State; provided that any denial of payment shall be reasonably related to the value to the State of the obligations not performed. iv. Removal Demand removal of any of the Local Agency's employees, agents, or contractors whom the State deems incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable, or whose continued relation to this Agreement is deemed to be contrary to the public interest or not in the State's best interest. Document Builder Generated Page 14 of 21 Rev. 12/09/2016 OLA #: 331001569 Routing #: 17-HA3-XC-00064 v. Intellectual Property If the Local Agency infringes on a patent, copyright, trademark, trade secret or other intellectual property right while performing its obligations under this Agreement, the Local Agency shall, at the State's option (a) obtain for the State or the Local Agency the right to use such products and services; (b) replace any Goods, Services, or other product involved with non -infringing products or modify them so that they become non -infringing; or, (c) if neither of the foregoing alternatives are reasonably available, remove any infringing Goods, Services, or products and refund the price paid therefore to the State. 18. NOTICES and REPRESENTATIVES Each individual identified below is the principal representative of the designating Party. All notices required to be given hereunder shall be hand delivered with receipt required or sent by certified or registered mail to such Party's principal representative at the address set forth below. In addition to but not in lieu of a hard -copy notice, notice also may be sent by e-mail to the e-mail addresses, if any, set forth below. Either Party may from time to time designate by written notice substitute addresses or persons to whom such notices shall be sent. Unless otherwise provided herein, all notices shall be effective upon receipt. A. If to State: CDOT Region: 3 Jason Huddle Project Manager 222 S. 6th Street, Room 317 Grand Junction, CO 81501 970-683-6253 B. If to the Local Agency: Town of Vail Chad Salli Project Engineer 75 South Frontage Road W Vail, CO 81657 970-479-2253 19. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE Any software, research, reports, studies, data, photographs, negatives or other documents, drawings, models, materials, or work product of any type, including drafts, prepared by the Local Agency in the performance of its obligations under this Agreement shall be the exclusive property of the State and all Work Product shall be delivered to the State by the Local Agency upon completion or termination hereof. The State's exclusive rights in such Work Product shall include, but not be limited to, the right to copy, publish, display, transfer, and prepare derivative works. The Local Agency shall not use, willingly allow, cause or permit such Work Product to be used for any purpose other than the performance of the Local Agency's obligations hereunder without the prior written consent of the State. 20. GOVERNMENTAL IMMUNITY Notwithstanding any other provision to the contrary, nothing herein shall constitute a waiver, express or implied, of any of the immunities, rights, benefits, protection, or other provisions of the Colorado Governmental Immunity Act, CRS §24-10-101, et seq., as amended. Liability for claims for injuries to persons or property arising from the negligence of the State of Colorado, its departments, institutions, agencies, boards, officials, and employees and of the Local Agency is controlled and limited by the provisions of the Governmental Immunity Act and the risk management statutes, CRS §24-30-1501, et seq., as amended. 21. STATEWIDE CONTRACT MANAGEMENT SYSTEM If the maximum amount payable to the Local Agency under this Agreement is $100,000 or greater, either on the Effective Date or at any time thereafter, this §21 applies. The Local Agency agrees to be governed, and to abide, by the provisions of CRS §24-102-205, §24-102-206, §24-103-601, §24-103.5-101 and §24-105-102 concerning the monitoring of vendor performance on state agreements/contracts and inclusion of agreement/contract performance information in a statewide contract management system. The Local Agency's performance shall be subject to Evaluation and Review in accordance with the terms and conditions of this Agreement, State law, including CRS §24-103.5-101, and State Fiscal Rules, Policies and Guidance. Evaluation and Review of the Local Agency's performance shall be part of the normal Agreement administration process and the Local Agency's performance will be systematically recorded in the statewide Agreement Management System. Areas of Evaluation and Review shall include, but shall not be limited to quality, cost and timeliness. Collection of information relevant to the performance of the Local Agency's obligations under this Agreement shall be determined by the specific requirements of such obligations and shall include Document Builder Generated Page 15 of 21 Rev. 12/09/2016 OLA #: 331001569 Routing #: 17-HA3-XC-00064 factors tailored to match the requirements of the Local Agency's obligations. Such performance information shall be entered into the statewide Contract Management System at intervals established herein and a final Evaluation, Review and Rating shall be rendered within 30 days of the end of the Agreement term. The Local Agency shall be notified following each performance Evaluation and Review, and shall address or correct any identified problem in a timely manner and maintain work progress. Should the final performance Evaluation and Review determine that the Local Agency demonstrated a gross failure to meet the performance measures established hereunder, the Executive Director of the Colorado Department of Personnel and Administration (Executive Director), upon request by CDOT, and showing of good cause, may debar the Local Agency and prohibit the Local Agency from bidding on future Agreements. The Local Agency may contest the final Evaluation, Review and Rating by: (a) filing rebuttal statements, which may result in either removal or correction of the evaluation (CRS §24-105-102(6)), or (b) under CRS §24-105-102(6), exercising the debarment protest and appeal rights provided in CRS §§24-109-106, 107, 201 or 202, which may result in the reversal of the debarment and reinstatement of the Local Agency, by the Executive Director, upon showing of good cause. 22. FEDERAL REQUIREMENTS The Local Agency and/or their contractors, subcontractors, and consultants shall at all times during the execution of this Agreement strictly adhere to, and comply with, all applicable federal and state laws, and their implementing regulations, as they currently exist and may hereafter be amended. 23. DISADVANTAGED BUSINESS ENTERPRISE (DBE) The Local Agency will comply with all requirements of Exhibit G and the Local Agency Contract Administration Checklist regarding DBE requirements for the Work, except that if the Local Agency desires to use its own DBE program to implement and administer the DBE provisions of 49 C.F.R. Part 26 under this Agreement, it must submit a copy of its program's requirements to the State for review and approval before the execution of this Agreement. If the Local Agency uses any State- approved DBE program for this Agreement, the Local Agency shall be solely responsible to defend that DBE program and its use of that program against all legal and other challenges or complaints, at its sole cost and expense. Such responsibility includes, without limitation, determinations concerning DBE eligibility requirements and certification, adequate legal and factual bases for DBE goals and good faith efforts. State approval (if provided) of the Local Agency's DBE program does not waive or modify the sole responsibility of the Local Agency for use of its program. 24. DISPUTES Except as otherwise provided in this Agreement, any dispute concerning a question of fact arising under this Agreement which is not disposed of by agreement shall be decided by the Chief Engineer of the Department of Transportation. The decision of the Chief Engineer will be final and conclusive unless, within 30 calendar days after the date of receipt of a copy of such written decision, the Local Agency mails or otherwise furnishes to the State a written appeal addressed to the Executive Director of CDOT. In connection with any appeal proceeding under this clause, the Local Agency shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the Local Agency shall proceed diligently with the performance of this Agreement in accordance with the Chief Engineer's decision. The decision of the Executive Director or his duly authorized representative for the determination of such appeals shall be final and conclusive and serve as final agency action. This dispute clause does not preclude consideration of questions of law in connection with decisions provided for herein. Nothing in this Agreement, however, shall be construed as making final the decision of any administrative official, representative, or board on a question of law. 25. GENERAL PROVISIONS A. Assignment The Local Agency's rights and obligations hereunder subcontracted without the prior written consent of subcontracting without such consent shall be void. All Agency or the State are subject to all of the provisions for all aspects of subcontracting arrangements and per B. Binding Effect are personal and may not be transferred, assigned or the State. Any attempt at assignment, transfer, or assignments and subcontracts approved by the Local hereof. The Local Agency shall be solely responsible formance. Document Builder Generated Page 16 of 21 Rev. 12/09/2016 OLA #: 331001569 Routing #: 17-HA3-XC-00064 Except as otherwise provided in §25(A), all provisions herein contained, including the benefits and burdens, shall extend to and be binding upon the Parties' respective heirs, legal representatives, successors, and assigns. C. Captions The captions and headings in this Agreement are for convenience of reference only, and shall not be used to interpret, define, or limit its provisions. D. Counterparts This Agreement may be executed in multiple identical original counterparts, all of which shall constitute one agreement. E. Entire Understanding This Agreement represents the complete integration of all understandings between the Parties and all prior representations and understandings, oral or written, are merged herein. Prior or contemporaneous addition, deletion, or other amendment hereto shall not have any force or affect whatsoever, unless embodied herein. F. Indemnification - General If Local Agency is not a "public entity" within the meaning of the Colorado Governmental Immunity Act, CRS §24-10-101, et seq., the Local Agency shall indemnify, save, and hold harmless the State, its employees and agents, against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees and related costs, incurred as a result of any act or omission by the Local Agency, or its employees, agents, subcontractors or assignees pursuant to the terms of this Agreement. This clause is not applicable to a Local Agency that is a "public entity" within the meaning of the Colorado Governmental Immunity Act, CRS §24-10-101, et seq. G. Jurisdiction and Venue All suits, actions, or proceedings related to this Agreement shall be held in the State of Colorado and exclusive venue shall be in the City and County of Denver. H. Limitations of Liability Any and all limitations of liability and/or damages in favor of the Local Agency contained in any document attached to and/or incorporated by reference into this Agreement, whether referred to as an exhibit, attachment, schedule, or any other name, are void and of no effect. This includes, but is not necessarily limited to, limitations on (i) the types of liabilities, (ii) the types of damages, (iii) the amount of damages, and (iv) the source of payment for damages. L Modification i. By the Parties Except as specifically provided in this Agreement, modifications of this Agreement shall not be effective unless agreed to in writing by both parties in an amendment to this Agreement, properly executed and approved in accordance with applicable Colorado State law, State Fiscal Rules, and Office of the State Controller Policies, including, but not limited to, the policy entitled MODIFICATIONS OF AGREEMENTS - TOOLS AND FORMS. ii. By Operation of Law This Agreement is subject to such modifications as may be required by changes in Federal or Colorado State law, or their implementing regulations. Any such required modification automatically shall be incorporated into and be part of this Agreement on the effective date of such change, as if fully set forth herein J. Order of Precedence The provisions of this Agreement shall govern the relationship of the State and the Local Agency. In the event of conflicts or inconsistencies between this Agreement and its exhibits and attachments, such conflicts or inconsistencies shall be resolved by reference to the documents in the following order of priority: i. Colorado Special Provisions, ii. The provisions of the main body of this Agreement, iii. Exhibit A (Scope of Work), iv. Exhibit B (Local Agency Resolution), v. Exhibit C (Funding Provisions), vi. Exhibit D (Option Letter), vii. Exhibit E (Local Agency Contract Administration Checklist), Document Builder Generated Page 17 of 21 Rev. 12/09/2016 OLA #: 331001569 Routing #: 17-HA3-XC-00064 viii. Other exhibits in descending order of their attachment. K. Severability Provided this Agreement can be executed and performance of the obligations of the Parties accomplished within its intent, the provisions hereof are severable and any provision that is declared invalid or becomes inoperable for any reason shall not affect the validity of any other provision hereof. L. Survival of Certain Agreement Terms Notwithstanding anything herein to the contrary, provisions of this Agreement requiring continued performance, compliance, or effect after termination hereof, shall survive such termination and shall be enforceable by the State if the Local Agency fails to perform or comply as required. M. Taxes The State is exempt from all federal excise taxes under IRC Chapter 32 (No. 84-730123K) and from all State and local government sales and use taxes under CRS §§39-26-101 and 201 et seq. Such exemptions apply when materials are purchased or services rendered to benefit the State; provided however, that certain political subdivisions (e.g., City of Denver) may require payment of sales or use taxes even though the product or service is provided to the State. The Local Agency shall be solely liable for paying such taxes as the State is prohibited from paying for or reimbursing the Local Agency for them N. Third Party Beneficiaries Enforcement of this Agreement and all rights and obligations hereunder are reserved solely to the Parties, and not to any third party. Any services or benefits which third parties receive as a result of this Agreement are incidental to the Agreement, and do not create any rights for such third parties. O. Waiver Waiver of any breach of a term, provision, or requirement of this Agreement, or any right or remedy hereunder, whether explicitly or by lack of enforcement, shall not be construed or deemed as a waiver of any subsequent breach of such term, provision or requirement, or of any other term, provision, or requirement. THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK Document Builder Generated Page 18 of 21 Rev. 12/09/2016 OLA #: 331001569 Routing #: 17-HA3-XC-00064 26. COLORADO SPECIAL PROVISIONS The Special Provisions apply to all Agreements except where noted in italics. A. CONTROLLER'S APPROVAL. CRS §24-30-202 (1). This Agreement shall not be deemed valid until it has been approved by the Colorado State Controller or designee. B. FUND AVAILABILITY. CRS §24-30-202(5.5). Financial obligations of the State payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. C. GOVERNMENTAL IMMUNITY. No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, of the Colorado Governmental Immunity Act, CRS §24-10-101 et seq., or the Federal Tort Claims Act, 28 U.S.C. §§1346(b) and 2671 et seq., as applicable now or hereafter amended. D. INDEPENDENT CONTRACTOR. The Local Agency shall perform its duties hereunder as an independent contractor and not as an employee. Neither The Local Agency nor any agent or employee of The Local Agency shall be deemed to be an agent or employee of the State. The Local Agency and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise provide such coverage for The Local Agency or any of its agents or employees. Unemployment insurance benefits shall be available to The Local Agency and its employees and agents only if such coverage is made available by The Local Agency or a third party. The Local Agency shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this Agreement. The Local Agency shall not have authorization, express or implied, to bind the State to any Agreement, liability or understanding, except as expressly set forth herein. The Local Agency shall (a) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (b) provide proof thereof when requested by the State, and (c) be solely responsible for its acts and those of its employees and agents. E. COMPLIANCE WITH LAW. The Local Agency shall strictly comply with all applicable federal and State laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices. F. CHOICE OF LAW. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Agreement. Any provision included or incorporated herein by reference which conflicts with said laws, rules, and regulations shall be null and void. Any provision incorporated herein by reference which purports to negate this or any other Special Provision in whole or in part shall not be valid or enforceable or available in any action at law, whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision shall not invalidate the remainder of this Agreement, to the extent capable of execution. G. BINDING ARBITRATION PROHIBITED. The State of Colorado does not agree to binding arbitration by any extra judicial body or person. Any provision to the contrary in this contact or incorporated herein by reference shall be null and void. H. SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00. State or other public funds payable under this Agreement shall not be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. The Local Agency hereby certifies and warrants that, during the term of this Agreement and any extensions, The Local Agency has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that The Local Agency is in violation of this provision, the State may exercise any remedy available at law or in equity or under this Agreement, including, without limitation, immediate termination of this Agreement and any remedy consistent with federal copyright laws or applicable licensing restrictions. Document Builder Generated Page 19 of 21 Rev. 12/09/2016 OLA #: 331001569 Routing #: 17-HA3-XC-00064 I. EMPLOYEE FINANCIAL INTEREST. CRS §§24-18-201 and 24-50-507. The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this Agreement. The Local Agency has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of The Local Agency's services and The Local Agency shall not employ any person having such known interests. J. VENDOR OFFSET. CRS §§24-30-202 (1) and 24-30-202.4. /Not Applicable to intergovernmental agreements/. Subject to CRS §24-30-202.4 (3.5), the State Controller may withhold payment under the State's vendor offset intercept system for debts owed to State agencies for: (a) unpaid child support debts or child support arrearages; (b) unpaid balances of tax, accrued interest, or other charges specified in CRS §39-21-101, et seq.; (c) unpaid loans due to the Student Loan Division of the Department of Higher Education; (d) amounts required to be paid to the Unemployment Compensation Fund; and (e) other unpaid debts owing to the State as a result of final agency determination or judicial action. K. PUBLIC CONTRACTS FOR SERVICES. CRS §8-17.5-101. /Not Applicable to Agreements relating to the offer, issuance, or sale of securities, investment advisory services or fund management services, sponsored projects, intergovernmental Agreements, or information technology services or products and services/. The Local Agency certifies, warrants, and agrees that it does not knowingly employ or contract with an illegal alien who shall perform work under this Agreement and shall confirm the employment eligibility of all employees who are newly hired for employment in the United States to perform work under this Agreement, through participation in the E -Verify Program or the State program established pursuant to CRS §8-17.5-102(5)(c), The Local Agency shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or enter into a contract with a subcontractor that fails to certify to The Local Agency that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. The Local Agency (a) shall not use E - Verify Program or State program procedures to undertake pre-employment screening of job applicants while this Agreement is being performed, (b) shall notify the subcontractor and the contracting State agency within three days if The Local Agency has actual knowledge that a subcontractor is employing or contracting with an illegal alien for work under this Agreement, (c) shall terminate the subcontract if a subcontractor does not stop employing or contracting with the illegal alien within three days of receiving the notice, and (d) shall comply with reasonable requests made in the course of an investigation, undertaken pursuant to CRS §8- 17.5-102(5), by the Colorado Department of Labor and Employment. If The Local Agency participates in the State program, The Local Agency shall deliver to the contracting State agency, Institution of Higher Education or political subdivision, a written, notarized affirmation, affirming that The Local Agency has examined the legal work status of such employee, and shall comply with all of the other requirements of the State program. If The Local Agency fails to comply with any requirement of this provision or CRS §8-17.5- 101 et seq., the contracting State agency, institution of higher education or political subdivision may terminate this Agreement for breach and, if so terminated, The Local Agency shall be liable for damages. L. PUBLIC CONTRACTS WITH NATURAL PERSONS. CRS §24-76.5-101. The Local Agency, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that he or she (a) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (b) shall comply with the provisions of CRS §24-76.5-101 et seq., and (c) has produced one form of identification required by CRS §24-76.5-103 prior to the effective date of this Agreement. SPs Effective 1/1/09 THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK Document Builder Generated Page 20 of 21 Rev. 12/09/2016 OLA #: 331001569 Routing #: 17-HA3-XC-00064 27. SIGNATURE PAGE THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT * Persons signing for The Local Agency hereby swear and affirm that they are authorized to act on The Local Agency's behalf and acknowledge that the State is relying on their representations to that effect. THE LOCAL AGENCY TOWN OF VAIL Name: By STATE OF COLORADO John W. Hickenlooper Department of Transportation (print name) Title: Date: Joshua Laipply, P.E., Chief Engineer (For) Shailen P. Bhatt, Executive Director (print title) *Signature Date: 2nd Local Agency Signature if needed Name:LEGAL By STATE OF COLORADO REVIEW Cynthia H. Coffman, Attorney General (print name) I itic: (print title) Date: Signature — Assistant Attorney General *Signature Date: ALL AGREEMENTS REQUIRE APPROVAL BY THE STATE CONTROLLER CRS §24-30-202 requires the State Controller to approve all State Agreements. This Agreement is not valid until signed and dated below by the State Controller or delegate. The Local Agency is not authorized to begin performance until such time. If The Local Agency begins performing prior thereto, the State of Colorado is not obligated to pay The Local Agency for such performance or for any goods and/or services provided hereunder. STATE OF COLORADO STATE CONTROLLER Robert Jaros, CPA, MBA, JD By: Colorado Department of Transportation Date: Document Builder Generated Rev. 12/09/2016 Page 21 of 21 28. EXHIBIT A — SCOPE OF WORK 21752 - 1-70 MP 180-182 - Vail Water Quality— Town of Vail TAP Project —0702-376 SCOPE OF WORK The project consists water quality ponds and structures at MP 180 at the East Vail 1-70 Frontage Road and East Vail 1-70 Interchange and at MP 182 along 1-70. The purpose of the project is to improve water quality from the surface runoff of 1-70 and 1-70 Frontage Roads in East Vail as recommended by the Gore Creek Water Quality Improvement Plan (2013) and to provide and enhancement to the on- going Vail Pass Sediment Actions Control Plan (SCAP) (2002). THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK Exhibit A - Page 1 of 1 29. EXHIBIT B - LOCAL AGENCY RESOLUTION LOCAL AGENCY ORDINANCE or RESOLUTION Exhibit B 30. EXHIBIT C — FUNDING PROVISIONS A. Cost of Work Estimate The Local Agency has estimated the total cost of the Work to be $875,000.00, which is to be funded as follows: TAP 0702-376 (21752) 1 BUDGETED FUNDS a. Federal Funds $700,000.00 (80% of Participating Costs) b. Local Agency Matching Funds $175,000.00 (20% of Participating Costs) TOTAL BUDGETED FUNDS $875,000.00 2 ESTIMATED CDOT-INCURRED COSTS a. Federal Share $0.00 (0% of Participating Costs) b. Local Agency $0.00 TOTAL ESTIMATED CDOT-INCURRED COSTS $0.00 3 ESTIMATED PAYMENT TO LOCAL AGENCY a. Federal Funds Budgeted (la) $700,000.00 b. Less Estimated Federal Share of CDOT-Incurred Costs (2a) $0.00 TOTAL ESTIMATED PAYMENT TO LOCAL AGENCY $700,000.00 FOR CDOT ENCUMBRANCE PURPOSES Total Encumbrance Amount $875,000.00 Less ROW Acquisition 3111 and/or ROW Relocation 3109 $0.00 Net to be encumbered as follows: $875,000.00 NOTE: Construction funds are currently not available. The Construction funds will become available after the federal authorization and execution of an Option Letter (Exhibit D) or Amendment. WBS Element ««<»»> Design 3020 $0.00 WBS Element 21752.20.10 Const 3301 $0.00 Exhibit C - Page 1 of 2 B. Matching Funds The matching ratio for the federal participating funds of this Work is 80% federal-aid funds (CFDA #20.205) to 20% Local Agency funds, it being understood that such ratio applies only to the $875,000.00 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 $875,000.00, 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 $875,000.00, 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 $700,000.00 (For CDOT accounting purposes, the federal funds of $700,000.00 and the Local Agency matching funds of $175,000.00 will be encumbered for a total encumbrance of $875,000.00), unless such amount is decreased as described in Sections B. and C. 1. of this Exhibit C, or increased by an appropriate written modification to this Agreement executed before any increased cost is incurred. NOTE: Construction funds are currently not available. The Construction funds will become available after the federal authorization and execution of an Option Letter (Exhibit D) or Amendment. 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. 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 OMB Circular A-133 (Audits of States, Local Governments and Non-Profit Organizations). The Single Audit Act Amendment requirements applicable to the Local Agency receiving federal funds are as follows: i. Expenditure Tess 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 exceeding more than $750,000-Highway Funds Only If the Local Agency expends more than $750,000 in Federal funds, but only received federal Highway funds (Catalog of Federal Domestic Assistance, CFDA 20.205) then a program specific audit shall be performed. This audit will examine the "financial" procedures and processes for this program area. iii. Expenditure exceeding more than $750,000-Multiple Funding Sources If the Local Agency expends more than $750,000 in Federal funds, and the Federal funds are from multiple sources (FTA, HUD, NPS, etc.) then the Single Audit Act applies, which is an audit on the entire organization/entity. iv. Independent CPA Single Audit shall only be conducted by an independent CPA, not by an auditor on staff. An audit is an allowable direct or indirect cost. Exhibit C - Page 2 of 2 31. EXHIBIT D — OPTION LETTER SAMPLE IGA OPTION LETTER (This option has been created by the Office of the State Controller for CDOT use only) NOTE: This option is limited to the specific contract scenarios listed below AND may be used in place of exercising a formal amendment. Date: State Fiscal Year: Option Letter No. Option Letter CMS Routing # Option Letter SAP # Original Contract CMS # Original Contract SAP # Vendor name: SUBJECT: 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.). 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.). 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.). REQUIRED PROVISIONS: Option A (Insert the following language for use with the Option A): In accordance with the terms of the original Agreement (insert CMS routing # of the original Agreement) between the State of Colorado, Department of Transportation and (insert the Local Agency's name here), the State hereby exercises the 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 tabled as follows: C-2, C-3, C-4, etc.). Option B (Insert the following language for use with Option 8): In accordance with the terms of the original Agreement (insert CMS # of the original Agreement) between the State of Colorado, Department of Transportation and (insert the Local Agency's name here), the State hereby exercises the option 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 is a NOTE only so 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.; and no more than 24.99% of any phase may be moved using this option letter. A transfer greater than 24.99% must be Exhibit D - Page 1 of 2 made using a formal amendment).. Option C (Insert the following language for use with Option C): In accordance with the terms of the original Agreement (insert CMS routing # of original Agreement) between the State of Colorado, Department of Transportation and (insert the Local Agency's name here), the State hereby exercises the option to 1) release 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 is a NOTE only so 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.; and no more than 24.99% of any phase may be moved using this option letter. A transfer greater than 24.99% must be made using a formal amendment). (The following language must be included on ALL options): The total encumbrance as a result of this option and all previous options and/or amendments is now (insert total encumbrance amount), as referenced in Exhibit (C-1, C-2, etc., as appropriate). The total budgeted funds to satisfy services/goods ordered under the Agreement remains the same: (indicate total budgeted funds) as referenced in Exhibit (C-1, C-2, etc., as appropriate) of the original Agreement. 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: Form Updated: December 19, 2012 Exhibit D - Page 2 of 2 32. EXHIBIT E - LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST The following checklist has been developed to ensure that all required aspects of a project approved for Federal funding have been addressed and a responsible party assigned for each task. After a project has been approved for Federal funding in the Statewide Transportation Improvement Program, the Colorado Department of Transportation (CDOT) Project Manager, Local Agency Project Manager, and CDOT Resident Engineer prepare the checklist. It becomes a part of the contractual agreement between the Local Agency and CDOT. The CDOT Agreements Unit will not process a Local Agency agreement without this completed checklist. It will be reviewed at the Final Office Review meeting to ensure that all parties remain in agreement as to who is responsible for performing individual tasks. xvii Exhibit E - Page 1 of 5 COLORADO DEPARTMENT OF TRANSPORTATION LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST Project No TAP 0702-376 STIP No Protect Code 21752 Region 3 Project Location East Vail and 1-70 Frontage Road Water Quality Structures (1-70 MM 180 & MM 182) Date 03-2b-15 Project Description Water quality facilities at the 1.70 East Vail (MM 180) interchange and along Gore Creek at 1-70 (MM 182) near Gore Creek campground overpass Local Agency Town of Vail Dept of Public Works Local Agency Project Manager Mr Chad Salli, Project Engineer (cSalli¢7)vailaov corn) / 970-479-2169 CDOT Resident Engineer Martha Miller / 970-683-9933 CDOT Project Manager Joe Carter / 970-683-6253 INSTRUCTIONS: This checklist shall be utilized to establish the contract administration responsibilities of the individual parties to this agreement The checklist becomes an attachment to the Local Agency agreement Section numbers correspond to the applicable chapters of the CDOT Local Agency Manual. The checklist shall be prepared by placing an "X" under the responsible party, opposite each of the tasks. The "X" denotes the party responsible for initiating and executing the task Only one responsible party should be selected When neither CDOT nor the Local Agency is responsible tor a task, not applicable (NA) shall be noted In addition, a '# will denote that CDOT must concur or approve Tasks that will be performed by Headquarters staff will be indicated The Regions, in accordance with established policies and procedures. will determine who will perform all other tasks that are the responsibility of CDOT. The checklist shall be prepared by the CDOT Resident Engineer or the CDOT Project Manager, in cooperation with the Local Agency Project Manager, and submitted to the Region Program Engineer. If contract administration responsibilities change, the CDOT Resident Engineer, in cooperation with the Local Agency Project Manager, will prepare and distribute a revised checklist. Note. Failure to comply with applicable Federal and State requirements may result in the loss of Federal or State participation in funding NO. DESCRIPTION OF TASK RESPONSIBLE PARTY LA CDOT TIP / STIP AND LONG-RANGE PLANS 2 1 I Review Project to ensure it is consist with STIP and amendments thereto I ( X FEDERAL FUNDING OBLIGATION AND AUTHORIZATION 4.1 Authorize funding by phases (CDOT Form 418- Federal -aid Program Data. Requires FI -{WA concur ren ceAn volvemen t ) X PROJECT DEVELOPMENT 5.1 Prepare Design Data - COOT Form 463 X 5 2 Prepare Local Agency/CDOT Inter -Governmental Agreement (see also Chapter 3) X X 5 3 Conduct Consultant Selection/Execute Consultant Agreement 5.4 Conduct Design Scoping Review Meeting X X 5 5 Conduct Public Involvement 5 6 Conduct Field Inspection Review (FIR) X 5 7 Conduct Environmental Processes (may require FHWA concurrence.rinvdvement) X 5 8 Acquire Right -of -Way (may require FHWA concurrence/involvement) X 5.9 Obtain Utility and Railroad Agreements Conduct Final Office Review (FOR) X X 5 10 CDOT Form 1243 REVISION DATE: DEC 2014 Paige 1 of 4 Previous editions are obsolete and may not be used Exhibit E - Page 2 of 5 NO. DESCRIPTION OF TASK RESPONSIBLE PARTY LA CDOT 5.11 Justify Force Account Work by the Local Agency Justify Proprietary Sole Source or Local Agency Furnished Items X X 5.12 5.13 Document Design Exceptions - CDOT Form 464 X 5 14 Prepare Plans, Specifications and Construction Cost Estimates X 5.15 Ensure Authorization of Funds for Construction X PROJECT DEVELOPMENT CIVIL RIGHTS AND LABOR COMPLIANCE 6.1 Set Underutilized Disadvantaged Business Enterprise (UBDE) Goals for Consultant and Construction Contracts (COOT Racoon EEO/Civil Rights Specialist) X 6.2 Determine Applicability of Davis -Bacon Act This project 0 is Eis not exempt from Davis -Bacon requirements as determined by the functional classification of the project location (Projects located on local roads and rural minor collectors may be exempt ) Martha Miller P E 03-26-2015 X CDOT Resident Engineer (Signature on File) Date 6 3 Set On -the -Job Training Goals Goal is zero if total construction is less than Si million (COOT Region EEO/Civil Rights Specialist) X 6 4 Title VI Assurances Ensure the correct Federal Wage Decision, all required Disadvantaged Business Enterprise/On-the-Job Training special provisions and FHWA Form 1273 are included in the Contract (COOT Resident Engineer) X ADVERTISE, BID AND AWARD 7.1 Obtain Approval for Advertisement Period of Less Than Three Weeks X 7.2 Advertise for Bids X 7.3 Distribute "Advertisement Set of Plans and Specifications X 7.4 Review Worksite and Plan Details with Prospective Bidders While Project Is Under Advertisement X 7.5 Open Bids X 7 6 Process Bids for Compliance Check CDOT Form 715 - Certificate of Proposed Underutilized DBE Participation when the low bidder meets UDBE goals X Evaluate CDOT Form 718 - Underutilized DBE Good Faith Effort Documentation and determine if the Contractor has made a good faith effort when the low bidder does not meet DBE goals X Submit required documentation for CDOT award concurrence X 7.7 Concurrence from COOT to Award X 7 8 Approve Rejection of Low Bidder X 7.9 Award Contract X 7 10 Provide "Award" and 'Record" Sets of Plans and Specifications X CONSTRUCTION MANAGEMENT 8 1 Issue Notice to Proceed to the Contractor X 8.2 Project Safety X X 8 3 Conduct Conferences Pre -Construction Conference (Appendix B) X Pre -survey • Construction staking • Monumentation X X Partnering (Optional) X Structural Concrete Pre -Pour (Agenda is in CDOT Construction Manua° X Concrete Pavement Pre -Paving (Agenda is in COOT Construction Manual) X HMA Pre -Paving (Agenda is in COOT Construction Manua X 8 4 Develop and distribute Public Notice of Planned Construction to media and local residents X 8 5 Supervise Construction CDOT Form 1243 REVISION DATE: DEC 2014 Page 2 of 4 Previous editions are obsolete and may not be used. Exhibit E - Page 3 of 5 NO. DESCRIPTION OF TASK RESPONSIBLE PARTY LA CDOT A Professional Engineer (PE) registered in Colorado. who will be "in responsible charge of construction supervision." Mr Chad Salli, Town of Vail 970-479-2169 X Local Agency Professional Engineer or Phone number CDOT Resident Engineer Provide competent, experienced staff who will ensure the Contract work is constructed in accordance with the plans and specifications X Construction inspection and documentation X 8 6 Approve Shop Drawings X 8.7 Perform Traffic Control Inspections X 8 8 Perform Construction Surveying X 8.9 Monument Right -of -Way X 8.10 Prepare and Approve Interim and Final Contractor Pay Estimates Provide the name and phone number of the person authorized for this task. Mr Chad Salli, Town of Vail 970-479-2169 X Local Agency Representative Phone number 8 11 Prepare and Approve Interim and Final Utility and Railroad Billings X 8 12 Prepare and Authorize Change Orders X 8 13 Submit Change Order Package to CDOT X 8.14 Prepare Local Agency Reimbursement Requests X 8.15 Monitor Project Financial Status X 8 16 Prepare and Submit Monthly Progress Reports X 8.17 Resolve Contractor Claims and Disputes Conduct Routine and Random Project Reviews Provide the name and phone number of the person responsible for this task Martha Miller, P.E. 970-683-9933 X X 8 18 CDOT Resident Engineer Phone number MATERIALS 9 1 Discuss Materials at Pre -Construction Meeting • Buy America documentation required prior to installabon of steel X 9 2 Complete CDOT Form 250 - Materials Documentation Record • Generate form, which includes determining the minimum number of required tests and applicable material submittals for all materials placed on the project • Update the form as work progresses • Complete and distribute form after work is completed X 9 3 Perform Project Acceptance Samples and Tests X 9 4 Perform Laboratory Verification Tests X 9 5 Accept Manufactured Products Inspection of structural components. • Fabrication of structural steel and pre -stressed concrete structural components • Bridge modular expansion devices (0" to 6' or greater) • Fabrication of bearing devices X X X X 9-6 Approve Sources of Materials X X X X 9 7 Independent Assurance Testing (IAT), Local Agency Procedures 0 CDOT Procedures • Generate IAT schedule • Schedule and provide notification • Conduct IAT 9 8 Approve mix designs • Concrete • Hot mix asphalt X X x X 9 9 Check Final Materials Documentation X 9.10 Complete and Distribute Final Materials Documentation X X CDOT Form 1243 REVISION DATE: DEC 2914 Page 3 of 4 Previous editions are obsdete and may not be used. Exhibit E - Page 4 of 5 NO. DESCRIPTION OF TASK RESPONSIBLE PARTY LA CDOT CONSTRUCTION CIVIL RIGHTS AND LABOR COMPLIANCE 10 1 Fulfill Project Bulletin Board and Pre-Consu„ction Packet Requirements Process CDOT Form 205 - Sublet Permit Application Review and sign completed CDOT Forrn 205 for each subcontractor, and submit to EEO/Civil Rights Specialist X X X X 10 2 103 Conduct Equal Employment Opportunity and Labor Compliance Verification Employee Interviews Complete COOT Form 280 10 4 Monitor Disadvantaged Business Enterprise Participation to Ensure Compliance vnth the "Commercially Useful Function` Requirements X X 10 5 Conduct Interviews When Project Utilizes On-the-Job Trainees Complete CDOT Form 200 - OJT Training Questionnaire 10 6 Check Certified Payrolls (Contact the Region EEO/Civil Rights Specialists for training requirements ) X X 10.7 Submit FHWA Form 1391 - Highway Construction Contractor's Annual EEO Report FINALS 11 1 Conduct Final Project Inspection Complete and submit COOT Form 1212 - Final Acceptance Report (Resident Engineer with mandatory Local Agency participation.) X 112 Write Final Project Acceptance Letter X 11 3 Advertise for Final Settlement X 11 4 Prepare and Distribute Final As-Constructed Plans X 11.5 Prepare EEO Certrfication X 11 6 Check Final Quantities. Plans and Pay Estimate, Check Project Documentation, and submit Final Certifications X 11 7 Check Material Documentation and Accept Final Material Certification (See Chapter 91 X X 11 8 Obtain CDOT Form 17 from the Contractor and Submit to the Resident Engineer 11 9 = - -- . - - - -. NIA 11 10 Complete and Submit CDOT Form 1212 — Final Acceptance Report (by CDOT) X 11 11 Process Final Payment X 11 12 Complete and Submit COOT Form 950 - Project Closure X 11.13 Retain Project Records for Six Years from Date of Project Closure X 11 14 Retain Final Version of Local Agency Contract Administration Checklist X x cc CDOT Resident Engineer/Project Manager CDOT Region Program Engineer CDOT Region EEO/Civil Rights Specialist CDOT Region Materials Engineer CDOT Contracts and Market Analysis Branch Local Agency Project Manager CDOT Form 1243 REVISION DATE. DEC 2014 Page 4 of 4 Previous editions are obsolete and may not be used Exhibit E - Page 5 of 5 33. EXHIBIT F — CERTIFICATION FOR FEDERAL -AID CONTRACTS The Local Agency certifies, by signing this Agreement, to the best of its knowledge and belief, that: No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, Agreement, loan, or cooperative agreement. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer of Congress, or an employee of a Member of Congress in connection with this Federal contract, Agreement, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not Tess than $10,000 and not more than $100,000 for each such failure. The prospective participant also agree by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such sub -recipients shall certify and disclose accordingly. Required by 23 CFR 635.112 Exhibit F - Page 1 of 1 34. EXHIBIT G — DISADVANTAGED BUSINESS ENTERPRISE 1. Program Objective and Assurance: It is the objective of the State to create a level playing field upon which Disadvantaged Business Enterprises (DBEs) can compete fairly for DOT -assisted contracts. By entering into this Agreement, the Local Agency hereby agrees to the following: The Local Agency shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any DOT -assisted contract or in the administration of the DBE program or the requirements of 49 CFR part 26. The Local Agency shall take all necessary and reasonable steps under 49 CFR part 26 to ensure nondiscrimination in the award and administration of DOT - assisted contracts. The State's DBE program, as required by 49 CFR part 26 and as approved by DOT, is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the recipient of its failure to carry out its approved program, the Department may impose sanctions as provided for under part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.). Each contract the Local Agency signs with a subcontractor (and each subcontract the prime contractor signs with a subcontractor) must include the following assurance: The contractor, sub recipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT -assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate. 2. DBE Contract Goals: Each scope of work prepared to procure consultant services or construction of the Work shall be evaluated by the CDOT Regional Civil Rights Office to determine a contract goal. The Local Agency shall be responsible for ensuring that the contract goal is incorporated into the procurement advertisement and accompanied by either: a. For consultant services, CDOT's then current process for evaluating the Consultant's proposed DBE participation; or an alternative proposed by the local agency and approved by CDOT. b. For construction, the CDOT DBE Standard Special Provision and all related forms. The Local Agency shall submit the Statement of Interest (consultants) and/or DBE Forms (Construction) to the CDOT Civil Rights and Business Resource Center for review and concurrence prior to award. 3. Compliance: With the assistance of the Local Agency, the CDOT Regional Civil Rights Office shall oversee the subcontractor's performance toward the contract goal. Revised 11/2013 Exhibit G - Page 1 of 1 35. EXHIBIT H — LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES THE LOCAL AGENCY SHALL USE THESE PROCEDURES TO IMPLEMENT FEDERAL -AID PROJECT AGREEMENTS WITH PROFESSIONAL CONSULTANT SERVICES Title 23 Code of Federal Regulations (CFR) 172 applies to a federally funded local agency project agreement administered by CDOT that involves professional consultant services. 23 CFR 172.1 states "The policies and procedures involve federally funded contracts for engineering and design related services for projects subject to the provisions of 23 U.S.C. 112(a) and are issued to ensure that a qualified consultant is obtained through an equitable selection process, that prescribed work is properly accomplished in a timely manner, and at fair and reasonable cost" and according to 23 CFR 172.5 "Price shall not be used as a factor in the analysis and selection phase." Therefore, local agencies must comply with these CFR requirements when obtaining professional consultant services under a federally funded consultant contract administered by CDOT. CDOT has formulated its procedures in Procedural Directive (P.D.) 400.1 and the related operations guidebook titled "Obtaining Professional Consultant Services". This directive and guidebook incorporate requirements from both Federal and State regulations, i.e., 23 CFR 172 and CRS §24- 30-1401 et seq. Copies of the directive and the guidebook may be obtained upon request from CDOT's Agreements and Consultant Management Unit. [Local agencies should have their own written procedures on file for each method of procurement that addresses the items in 23 CFR 172]. Because the procedures and laws described in the Procedural Directive and the guidebook are quite lengthy, the subsequent steps serve as a short -hand guide to CDOT procedures that a local agency must follow in obtaining professional consultant services. This guidance follows the format of 23 CFR 172. The steps are: 1. The contracting local agency shall document the need for obtaining professional services. 2. Prior to solicitation for consultant services, the contracting local agency shall develop a detailed scope of work and a list of evaluation factors and their relative importance. The evaluation factors are those identified in C.R.S. 24-30-1403. Also, a detailed cost estimate should be prepared for use during negotiations. 3. The contracting agency must advertise for contracts in conformity with the requirements of C.R.S. 24-30-1405. The public notice period, when such notice is required, is a minimum of 15 days prior to the selection of the three most qualified firms and the advertising should be done in one or more daily newspapers of general circulation. 4. The request for consultant services should include the scope of work, the evaluation factors and their relative importance, the method of payment, and the goal of 10% for Disadvantaged Business Enterprise (DBE) participation as a minimum for the project. 5. The analysis and selection of the consultants shall be done in accordance with CRS §24-30- 1403. This section of the regulation identifies the criteria to be used in the evaluation of CDOT pre -qualified prime consultants and their team. It also shows which criteria are used to short-list and to make a final selection. The short-list is based on the following evaluation factors: a. Qualifications, b. Approach to the Work, c. Ability to furnish professional services. d. Anticipated design concepts, and e. Alternative methods of approach for furnishing the professional services. Exhibit H - Page 1 of 2 Evaluation factors for final selection are the consultant's: a. Abilities of their personnel, b. Past performance, c. Willingness to meet the time and budget requirement, d. Location, e. Current and projected work load, f. Volume of previously awarded contracts, and g. Involvement of minority consultants. 6. Once a consultant is selected, the local agency enters into negotiations with the consultant to obtain a fair and reasonable price for the anticipated work. Pre -negotiation audits are prepared for contracts expected to be greater than $50,000. Federal reimbursements for costs are limited to those costs allowable under the cost principles of 48 CFR 31. Fixed fees (profit) are determined with consideration given to size, complexity, duration, and degree of risk involved in the work. Profit is in the range of six to 15 percent of the total direct and indirect costs. 7. A qualified local agency employee shall be responsible and in charge of the Work to ensure that the work being pursued is complete, accurate, and consistent with the terms, conditions, and specifications of the contract. At the end of Work, the local agency prepares a performance evaluation (a CDOT form is available) on the consultant. CRS §§24-30-1401 through 24-30-1408, 23 CFR Part 172, and P.D. 400.1, provide additional details for complying with the preceeding eight (8) steps. Exhibit H - Page 2 of 2 36. EXHIBIT I - FEDERAL -AID CONTRACT PROVISIONS REQUIRED CONTRACT PROVISIONS FEDERAL -AID CONSTRUCTION CONTRACTS I General II. Nondiscnnanation III Nonsegregated Facilities IV. Davis -Baan and Related Act Provisions V, Contrail Work I lours and Safety Standards Act Provisions VI. Subletting or Assigning the Contract VII. Safety' Accident Prevention VIII. False Statements ConeAmino Highway Projects IX. Imt>lementabon of Clean Air Act and Federal Water Pollution Control Act X. Compliance with GoyemmenMlde Suspension and Debarment Requirements Xi. Certification Regarding Use of Contract Funds for Lobbying ATTACI IMENTS A. Employment and Matenals Preference for Appalachian Development Highway System or Appalachian Local Access Road Contracts (included in Appalachian contracts only) 1. GENERAL 1 Fomi FHWA-1273 must be physically incorporated in each construction contract funded under Title 23 (excluding emergency contracts solely intended for debris removal) The contractor (or subcontractor) must insert this fonn in each subcontract and further require as inclusion in alt lower tier subcontracts (excluding purchase orders, rental agreements and other agreements for supplies or services) The applicable requirements of Form FI IWA-1273 are incorporated by reference for work done under any purchase order. rental agreement or agreement for other services. The prime contractor shall be responsible for compliance by any subcontractor, tower -tier subcontractor or service faowder. Fomr FHWA-1273 must be mNuded in all Federal -aid (lesign- buitd contracts. in all subcontracts and in lower ter subcontracts (excluding subcontracts for design saroces purchase orders, rental agreements and other agreements for supplies or services). The design -builder shall be responsible for compliance by any subcontractor, lower -tier Subcontractor Of serwce provider Contracting agencies may reference Form FHWA-1273 in bid proposal or request for proposal documentshowever. the Form FI IWA-1273 must be physically incorporated (not referenced) in all contracts, subcontracts and lower -tier subcontracts (excluding purchase orders. rental agreements and other agreements for supplies or services related to a construction contract) 2. Subject to the applicability crilena noted in the following sections, these contract provisions shall apply to all work performed on the contract by the contractor's Own organization and with the assistance of workers under the contractor's immediate supenntendence and to all work performed on the contract by piecework. station work. or by subcontract FHWA-1273 -- Revised May 1. 2012 3 A breach of any of the stipulations contained in these Required Contract Provisions may be sufficient grounds for withholding of progress payments withholding of final paymenttermination of the contractsuspension r debarment or any other action detemened to be appropriate by the contracting agency and Fl !WA 4 Selection Of Labor- During the performance of this contract, the contractor shall not use convict labor for any purpose within the limits of a construction project on a Federal -aid highway unless 1 is labor performed by convicts who are on parole, supervised releaseor probation The term Federal -aid highway does not include roadways functionally classified as local roans or rural minor collectors II. NONDISCRIMINATION The provisions of this section related to 23 CFR Part 230 are applicable to all Federal -aid construction contracts and to all related construction subcontracts of 510.000 or more The provisions of 23 CFR Part 230 are not applicable to matenal supply. engmeenng. or architectural service contracts. In addition. the contractor and all subcontractors must comply with the following policies' Executive Order 11246, 41 CFR 60. 29 CFR 1625-1627, Title 23 USC Section 140. the Rehabilitation Act of 1973, as amended (29 USC 794), Tide VI of the Civil Rights Act of 1964 as amended, and related regulations including 49 CFR Parts 21. 26 and 27: and 23 CFR Parts 200 230. and 033. The contractor and all subcontractors must comply with: the requirements of the Equal Opportunity Clause in 41 CFR 60- 1 4(b) and. for all construction contracts exceeding 510.000, the Standard Federal Equal Employment Opportunity Construction Contract Specifications in 41 CFR 60-4 3 Note: The U.S. Department of Labor has exclusive authonty to detemrine compliance with Executive Order 11246 and the policies of the Secretary of Labor including 41 CFR 60. and 29 CFR 1625-1627. The contracting agency and the FIiWA have the authority and the responsibility to ensure compliance with Tate 23 USC Section 140. the Rehabilitation Act of 1973. as amended (29 USC 794). and Title VI of the Civil Rights Act of 1964, as amended, and related regulations including 49 CFR Parts 21. 26 and 27: and 23 CFR Paris 200 230. and 633 The following provision is adopted front 23 CFR 230. Appendix A. with appropriate revisions to confomt to the U.S. Department of Later (US DOL) and FHWA requirements. 1. Equal Employment Opportunity: Equal employment opportunity (EEO) requirements not to discriminate and to take affimtalive action to assure equal opportunity as set forth under laws, executive orders. rules. regulations (28 CFR 35, 29 CFR 1630, 29 CFR 1625-1627 41 CFR 60 and 49 CFR 27) and orders of the Secretary of Labor as modified by the provisions prescribed herein, and imposed pursuant to 23 U S C. 140 shall constitute the EEO and specific affirmative action standards for the contractors project activities under Exhibit 1 - Page 1 of 12 this contrail. The provisions of the Americans with Disabilities Act of 1990 (42 LI S C 12101 et seq.) set forth under 28 CFR 35 and 29 CFR 1630 are incorporated by reference in this contract. In the execution of this contract. the contractor agrees to comply vnth the following minimum specific requirement activities of EEO o The contractor will work with the ntra tt 1g agency and the Federal Government to ensure that it has made every good faith effort to provide equal opportunity with respect to all of its terms and conditions of employment and in their review of activates under the contrail. b The contractor will accept as its operating policy the following statement, "It is the policy of this Company to assure that applicants are employed. and that employees are treated dunng employment. without regard to their race, religion. sex. color, national origin, age or disability Such action shall include employment. upgrading, demotion, or transfer; recruitment or recruitment advertising', layoff or temonabon, rates of pay or other forms of r.ompensatore and selection for training. including apprenticeship. pre -apprenticeship, andior on-the- job training " 2. EEO Officer: The contractor will designate and make known to the contracting officers an EEO Officer who will have the responsibility for and must be capable of effectively administering and promoting an active EEO program and who must be assigned adequate authority and responsibility to do sin 3. Dissemination of Policy- All members of the contractors staff who are authorized to hire supervisepromote. and discharge en -1)10005, or who recommend such action. or who are substantially involved in such action. will be made fully cognizant of, and will implement. the contractors EEO policy and contractual responsibilities to provide EEO in each grade and classification of empioyrnent To ensure that the above agreement will be met. the following actions will be taken as a minimum a Penofic meetings of supervisory and personnel office employees will be conducted before the start of work and then not less often than once every six months. at which time the contractor's EEO policy and its Implementation wet be reviewed and explained The meetings will be conducted by the EEO Officer b. All new supervisory or personnel office employees will be given a thorough indoctrination by the EEO Officer. covering at major aspects of the contractor's EEO obligations wttnin thirty days following their reporting for duty with the contractor c Al personnel who are engaged in direct recruitment for the project will be instructed by the EEO Officer in the contractor's procedures for locating and hiring minonties and Women Li Notices and posters setting toren the contractor's 6E0 policy will be placed in areas readily accessible to employees. applicants for employment and potential employees. e The contractors EEO policy and the procedures to implement such policy well be brought to the attention of employees by means of [meetings. employee handbooks. or other appropriate means 2 4. Recruitment: When advertising for employees, the contractor will include in all advertisements for employees the notation: "An Equal Opportunity Employer." All such advertisements will be placed in publications having a large circulation among nannies and women In the area from which the prosect work torte waxed normally be denved. a The contractor willunless precluded by a valid bargaining agreement. conduct systematic and direct recruitment through public and private employee referral sources likely to yield qualified minorities and women. To meet this requirement. the contractor will identify sources of potential rrenonty group employees. and establish with such identified sources procedures whereby minonty and women applicants may be referred to the contractor for employment consideration b. In the event the contractor has a valid bargaining agreement providing for exclusive hinng hall referrals. the contractor is expected to observe the provisions of that agreement to the extent that the system meets the contractor's compliance with EEO contract pmvrsrons Where implementation of such an agreement has the effect of discriminating against minorities or women. or obligates the contractor to do the same. such implementation violates Federal nondiscrimination provisions c. The contractor will encourage Its present employees to refer minorities and women as applicants for employment. Information and procedures with regard to referrrny such applicants will be discussed with employees. 5. Personnel Actions: Wages working conditions and employee benefits shall be established and administered. and personnel actions of every type including hiring upgrading. promotion. transfer, demotion, layoff. and termination. shall be taken without regard to race. color. religion. sex, national angin. age or disability. The following procedures shall be followed' a. The contractor will conduct panodic inspections of project saes to insure that working conditions and employee facilites do not indicate discriminatory treatment of prosect see personnel b The contractor will periodically evaluate the spread of wages paid within each classification to determine any evidence of drscnminatory wage practices c The contractor will penodicasy review selected personnel actions in depth to determine whether there is evidence of discrimination Where evidence is foundthe contractor vvll promptly take corrective acnon, If the review indicates that the discrimination may, extend beyond the actions renewed, such corrective action shall include all affected persons d.. The contractor will promptly investigate all complaints of alleged discnnrnation made to the contractor in connection with Its obligations under this contract, 1111 attempt to resolve such complaints and will take appropriate corrective action within a reasonable erne If the investigation indicates that the discrimination rnay affect persons other than the complainant. such corrective action shall include such other persons Upon completion of each investigation. the contractor will inform every complainant of all of their avenues of appeal. 6. Training and Promotion: a The contractor will assist in locating, qualifying, and increasing the skills of minorities and women who are Exhibit 1 - Page 2 of 12 applicants for employment or current employees. Such efforts should be aimed at developing full journey level status employees in the type of (rade or job classification involved b Consistent with the contractor's work force requirements and as pemsssible under Federal and State regulations. the contractor shall make full use of training programs. re.. apprenticeship. and on-the-job training programs for the geographical area of contract performance. In the event a special provision for training is provided under this contract. this subparagraph will be superseded as indicated in the speefal pmvisron The contracting agency may reserve training positions for persons who receive welfare assistance in accordance with 23 U S C 140(a) c. The contractor will advise employees and applicants for employment of available training programs and entrance requirements for each d. The contractor will periodically review the training and promotion potential of employees who are mirsoribes and woman and will encourage eligible employees to apply dor such training and promotion T. Unions: If the contractor relies in whole or in part upon [inions as a source of employees. the contractor wilt use good faith efforts to obtain the cooperation of such unions to increase opportunities for minorities and women. Actions by the contractor either directly or through a contractor's association acting as agent. will include the procedures set forth below' a The contractor will use good faith efforts to develop. in cooperation with the unions. joint training programs aimed toward qualifying more minorities and women for membership in the unions and increasing the skills of nninonties and women so that they may qualify for higher paying employment b The contractor will use good faith efforts to incorporate an EEO clause into each union agreement to the end that such union will be contractually bound to refer applicants without regard to then race. colorreligion, sex, national ongin age or disability. c. The contractor is to obtain information as 10 the referral practices and policies of the labor union exempt that to the extent such information is within the exclusive possession of the labor union and such labor union recuses to furnish such information to the contractor. the contractor shall so certify to the Contracting agency and shall set forth what efforts have been made 10 obtain such information. d. In the event the union is unable to provide the contractor with a reasonable flow of referrals within the time limit set forth in the collective bargaining agreementthe contractor pinl. through independent recruitment efforts, tiff the employment vacancies without regard to racecolor. religion, sexnational raigin age or disability' making full efforts to obtain qualified and/or qualifiable minorities and women. The failure of a unison to provide sufflorent referrals; (even though it is obligated to provide exclusive referrals under the terns of a collective bargaining agreement) does not relieve the contractor from the requirements of this paragraph In the event the union referral practice prevents the contractor frau meeting the obligations pursuant to Executive Order 11246. as amended. and these special provisions. such contractor shall immediately nobly the contracting agency 8. Reasonable Accommodation for Applicants I Employees with Disabilities: The contractor must be familiar with the requirements for and comply with the Amencans with Disabilities Act and all rules and regulations established there under. Employers must provide reasonable accommodation in all employment activities unless to do so wnued cause an undue hardship. 9, Selection of Subcontractors. Procurement of Materials and Leasing of Equipment: The contractor shall not discnminate on the grounds of race. color, religion. sex. national ongin, age or disability in the selection and retention of subcontractors. including procurement of materials and leases of equipment The contractor shall take all necessary and reasonable steps to ensure nondiscrimination in the administration of this contract a The contractor shall notify all potential subcontractors and suppliers and lessors of their EEO obligations under this contract b The contractor will use good faith efforts to ensure subcontractor compliance with their EEO obligations. 10. Assurance Requited by 49 CFR 26.13)b). a The requirements of 49 CFR Part 26 and the Stale DOTs U S DOT -approved DBE program are incorporated by reference. b The contractor 04 subcontractor shall not ibscnminate on the basis of race. color. national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT -assisted contracts. Failure by the contractor to carry out these requirements is a matenal breach of this contract. which may result in the tem inabon of this contract or such other remedy as the contracting agency deems appropnate 11. Records and Reports: The contractor shall keep such records as necessary to document compliance with the EEO requirements. Such records shall be retained for a period of three years following the date of the final payment to the contractor for all contract word: and shall be available a1 reasonable times and places for inspection by authonzed representatives of the contracting agency and the FI IWA a The records kept by the contractor shall document the following: (1) The number and work hours of minonty and non - minority group members and women employed in each work classification on the project: (2) The progress and efforts being made in cooperation with unions. when applicable. to increase employment opportunities for minorities and women, and (3) The progress and efforts being made in locatinghiring, trainingqualdyng, and upgrading minorities and waren, b The contractors and subcontractors will submit an annual report to the contracting agency earn July for the duration of the project. indicating the number of minority, women, and non-mnonty group employees currently engaged in each work classification required by the contract work. This information is to be reported on Form Fl IWA-1391 The staffing data should represent the project work force on board in all or any par of the last payroll period preceding the end of July. If on-the-job training is being required by special provision. the contractor Exhibit 1 - Page 3 of 12 will be required to collect and report training data. The employment data should reflect the work force on board during all or any part of the last payroll penod preceding the end of July III. NONSEGREGATED FACILITIES This provision is applicable to all Federal -aid construction contracts and t0 all related construction subcontracts of 310.000 or more. The contractor must ensure that facilities provided for employees are provided in such a manner that segregation on the basis of race. color. religion. sex. or national ongun cannot result. The contractor may neither require such segregated use by written a oral policies nor tolerate such use by employee custon. The contractor's obligation extends further to ensure that its employees are not assigned to perfomi their services at any location. under the contractor's control, where the facilities are segregated, The tern)'facilities" includes waiting rooms, work areas, restaurants and other eating areas, time clocksrestrtxxns washrooms locker rooms. and other storage or dressing areas, parking lots. dunking fountains recreation or entertainment areas. transportation. and housing provided for employees. The contractor shall provide separate or single -user restrooms and necessary dressing or sleeping areas to assure privacy between sexes IV. DAVIS-BACON AND RELATED ACT PROVISIONS This section is applicable to an Federal -aid construction projects exceeding 32.000 and to all related subcontracts and lower -tier subcontracts (regardless of subcontract size). The requirements apply to all projects located within the right-of- way of a roadway that is functionally classified as Federal -aid highway'. This excludes roadways functionally classified as local roads or nrral mina collectors. which are exempt. Contracting agencies may elect to apply these requirements to other projects. The following provision, are front the U S Department of Labor regulations in 29 CFR 5.5 'Contract provisions and related matters- with minor revisions to conform to the FI IWA- 1273 fomrat and Ft ti/VA program requirenments. 1. Minimum wages a. All laborers and mechanics employed or working upon the site o1 the work, will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any acc unt (except such payroll deductions as are parmitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)). the lull amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereofregardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and rnechanics. Contributions made or costs reasonably anticipated for bona fide tinge benefits under section 1(b)(2) of the Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics. subject to the provisions 4 of paragraph 1,dof this section: also. regular contributions made or costs incurred for more than a weakly pencil lbut not less often than quarterly) under plans, funds. or programs which cover the particular weekly penod, are deemed to be constructively made or incurred during such weekly penod. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed without regard to skill. except as provided in 29 CFR 5.5(aX4). Laborers or mechanics performing work in more than one dassification may be compensated at the rate specified for each classification for the bra actually worked therein Provided. That the employer's payroll records accurately set forth the time spent in each nlassiticabon in which work is pedomed. Tha wage determination (irxiudirig any additional classification and wage rates conformed under paragraph 1 b of this section) and the Davis -Bacon poster (WH -1321) shall be posted at all tines by the contractor and its subcontractors at the see of time work In a prominent and accessible place where it can be easily seen by the workers. b (1) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met. (i) The work to be performed by the classification requested is not periormed by a classification in the wage detemmination' and (ii) The classification is utilized in the area by the construction industry and (ri) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage detemenation (2) If the contractor and the laborers and madams to be employed in the classification (if known). or their representativesand the contracting officer agree on the classification and wage rate (including the amount designated for Cringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division. Employment Standards Adminrstrabon. U.S. Department of Labor. Washington DC 20210. The Administrator, or an authorized representative, will approve. modify. or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30 -day penod that additional time is necessary (3) In the event the contractor, the laborers or mechanics to be employed in the dassdication or their representatives. and the contracting officer do not agree on the proposed classification and wage rate (inducting the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the quesborw, including the views of all interested parties and the recommendation of the contracting officerto the Wage and flour Administrator for determination. The Wage and I lour Administrator. or an authonzed representativevolt issue a detemination within 30 days of receipt and so advise the contracting officer or Exhibit 1 - Page 4 of 12 well notify the contracting officer within the 3O day penod that additional time is necessary (4) The wage rate (including fnnge benefits where appropnate) determined pursuant to paragraphs 1 b (2) or 1.b.(3) of Vim section. shall be pard to all workers perfomling work in the classification under this contract from the fust day on which work is performed in the classification c. Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate.. the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof d If the contractor does not make payments to a trustee or other third person, the Contractor may Consider as part Of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program. Provided. That the Secretary of Labor has found. upon the written request of the contractor. that the applicable standards of the Davis -Bacon Act have been met. The Secretary Of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. 2. Withholding The contracting agency shall upon its own action or upon written request of an authonzed representative of the Department of Labor, withhold or cause to be withheld from the contractor under this contract. or any other Federal contract with the same prime contractor. or any other federally - assisted contract subject to Davis -Bacon prevailing wage requirements. which is held by the same prime contractor. so much of the accaued payments or advances as may be considered necessary to pay laborers and mechanics. including apprentices, traineesand helpers, employed by the convector or any subcontractor the full amount Of wages required by the contract In the event of failure to pay any laborer or mechanic. Including any apprentice, trainee. or helper. employed or working on the s1e of the work all or part of the wages required by the contract. the contracting agency may atter written notice to the contractortake such action as may be necessary to cause the suspension of any further payment advance. or guarantee of funds until such violations have ceased 3. Payrolls and basic records a Payrolls and basic records relating thereto shall be maintained by the contractor dunng the course of the wok and preserved for a penod of three years thereafter for all laborers and mechanics working at the site of the work Such records shall contain the name. address, and social secunty number of each such Worker, hiS or her correct classification. hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fnnge benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis -Bacon Act). daily and weekly number of hours worked deductions made and actual wages paid Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in pmvidsng benefits under a plan or program described in section 1(b)(2X8) of the Davis - 5 Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits Is enforceable, that the plan or program rs financially responsible. and that the plan or program has been communicated in writing to the laborers or mechanics affected. and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall mantan written evidence of the registration of apprenticeship programs and certification of trainee programs. the registra000 of the apprentices and trainees. and the ratios and wage rates prescribed n the applicable pmgrams. b (1) The contractor shall submit weekly for each week es which any contract work is pertorn ed a copy of all payrolls to the contracting agency. The payrolls subnutled shall set out accurately and completely all of the infomiation required to be maintained under 29 CFR 5.5(a)(3)(1). except that full social security numbers and home addresses shall r101 be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee e g. , the last tour digits of the employee's social security number) The required weekly payroll information may be submitted in any form desired. Optional Form WI 1-347 is available for this purpose from the Wage and I lour Division Web site at htlp'l/www dol govtesalwhd!omistwh347instr htm or its successor site The prime contractor is responsible for the submission of copies of payrolls by all subcsmtractos Contractors and subcontractors shall maintain the full social security number and current address of each covered worker. and shall provide them upon request to the contracting agency for transmission to the State DOT, the FFIWA or the Wage and I lour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements, Itis nota violation of this section for a prime contractor to require a subcontractor to provide addresses and 00031 security numbers to the prime contractor for its own records. without weekly submission to the contracting agency.. (2) Each payroll submitted shall be accompanied by a "Statement of Compliance.- signed by the contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following: (i) That the payroll for the payroll penod contains the information required to be provided under §S 5 (a)(3)(i) of Regulations. 29 CFR part 5. the appmpnate information is being maintained under §5 5 (a )(3)(;) of Regulations, 29 CFR part 5. and that surh lnfomlatlon is correct and complete: (ii) That each laborer or mechanic (including each helper. apprentice. and trainee) employed on the contract rlunng the payroll penod has been paid the full weekly wages eamed. without rebate. either directly or indirectly. and that no deductions have been made edher directly or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations 29 CFR part 3 (iii) That each laborer or mechanic has been paid not less than the applicable wage rates and fnnge benefits or cash equivalents for the classification of work performed, as specified in the applicable wage delamination incorporated into the contract Exhibit 1 - Page 5 of 12 (3) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form W11-347 shall satisfy the requirement for submission of the 'Statement of Compliance' raqured by paragraph 3b (2) of this section. (4) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code. c. The contractor or subcontractor shall make the records required under paragraph 3.a of this section available for inspection, copying or transcription by authorized representatives of the contracting agency. the State DOT. the FI IWA, or the Department of Labor. and shall pemmit such representatives to interview employees during working hours on the job If the contractor or subcontractor fails to submit the required records or to snake them available, the Fl MA may. after written notice to the contractor. the contracting agency or the State DOT. take such action as may be necessary to cause the suspension of any further payment. advance, or guarantee of funds. Furthermore. failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5 12 4. Apprentices and trainees a Apprentices (programs of the USDOL). Apprentices will be permitted to work at less than the predetermined rate for the work they perfomed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor. Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services. or with a State Apprenticeship Agency recognized by the Office. or if a person Is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program. but who has been certified by the Office of Apprenticeship Training. Employer and Labor Services or a State Apprenticeship Agency (where appropnate) to be eligible for probabonary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above.. shall be paid not less than the applicable wage rate on the wage detemination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage detemination for the work actually performed Where a contractor is performing construction on a project in a locality other than that in whirh its program is registeredthe ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractors or subcontractor's registered program shall be observed Every apprentice must be paid at not less than the rate specified m the registered program for the apprentice's level of progress. expressed as a percentage of the journeymen hourly 6 rate specified in the applicable wage determination. Apprentices shall be paid fnnge benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fnnge benefits. apprentices must be paid the full amount of fnnge benefits listed on the wage determination for the applicable classification. If the Administrator detemtnes that a different practice prevails for tha applicable apprentice classification fringes shall be paid in accordance with that determination. In the event the Office of Apprenbceship Training, Employer and Labor Services. or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved, b Trainees (programs of the USDOL). Except as provided in 29 CFR 5.16, trainees will not be pernitted to work at less than the predetemtined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received pnor approval, evidenced by fume! certification by the U S Department of Labor. Employment and Training Administration The ratio of trainees to journeymen on the join site shall not be greater than permitted under the plan approved by the Employment and Training Administration Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fnnge benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits. trainees shall be paid the full amount of fringe benefits listed on the wage detemmabon unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage detemination which provides tor less than full fnnge benefits for apprentices.. Any employee listed on time payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination tor the classification of work actually performed In addition. any trainee performing work on the job site in excess of the ratio pemstted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed In the event the Employment and Training Administration withdraws approval of a training program, the contractor we no longer be permitted to utilize trainees at less than the applicable predetemsned rate for the work performed until an acceptable program is approved c Equal employment opportunity The utilization of apprentices. trainees arid journeymen under this part shall be ren confomnity with the equal employment opportunity requirements of Executive Order 11246. as amended. and 29 CFR pan 30 Exhibit 1 - Page 6 of 12 d Apprentices and Trainees (programs of the U S DOT) Apprentices and trainees working under apprenticeship and skill training programs which have been certified by the Secretary of Transportation as promoting EEO in cnnnecbon with Federal -aid highway construction programs are not subject to the requirements of paragraph 4 of this Section IV. The straight time hourly wage rates for apprentices and trainees under such programs will be established by the particular programs. The ratio of apprentices and trainees to journeymen shall not be: greater than pen -tided by the temis of the particular program 5. Compliance with Copeland Act requirements. The contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this contract 6, Subcontracts. The contractor or subcontractor shall insert Fowl Ft WA -1273 in any subcontracts and also require the subcontractors to include Form Ft RVA -1273 in any lower tier subcontracts The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 20 CFR 5 5 7. Contract termination: debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the contract. and for debarment as a contractor and a subcontractor as provided in 29 CFR 5 12 8. Compliance with Davis -Bacon and Related Act requirements. All rulings and interpretations of the Davis - Bacon and Related Acts contained in 29 CFR parts 1 3. and 5 aro herein incorporated by reference in this contract 9. Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract Such disputes Shall be resolved in accordance with the procedures of the Department of Labor set Mrth in 29 CFR parts 5 6. and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its sutxnntractors) and the contracting agency. the U.S. Department of Labor. or the employees or their representatives. 10. Certification of eligibility. a. By entering into this contract, the contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the contractor's fiml is a person or flmt Ineligible t0 be awarded Government contracts by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a X1 b. No part of this contract shall be subcontracted to any person or timn ineligible for award of a Government contract by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(aX1). c. The penalty for making false statements is presdaibed in the U.S. Cnmmal Code. 18 U.S.0 1001. V. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT The following clauses apply to any Federal -aid construction contract in an amount in excess of 5100.000 and subject to the overtime provisions of the Contract Work [lours and Safety Standards Ad These clauses shall be inserted in addition to the clauses required by 29 CFR 5 5(a) or 29 CFR 4 6 As used in this paragraph, the temps laborers and mechanics include watchmen and guards. 1. Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit anv such laborer or mechanic in any workweek in which he or she is employed 00 such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half butes the bask rate of pay for all hours worked in excess of forty hours in such workweek 2. Violation; liability for unpaid wages; liquidated damages In the event of any violation of the clause set froth In paragraph (1.) of this section. the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition. such contractor and subcontractor shall be liable to the United States (in the case of work clone under contract for the District of Columbia or a tenitoni. to such Distinct or to such tenrtory), for liquidated damages. Such liquidated damages shall be computed with respect to each indent -fuel laborer or mechanic. including watchmen and guards employed in violabnn of the clause set forth In paragraph (1 ) of this section, in the sum of $10 for each calendar clay on which such individual was required or permitted to work in excess of the standard workweek of lcxty hours without payment of the overtime wages required by the clause set forth in paragraph (1 ) of this section. 3. Withholding for unpaid wages and liquidated damages. The FI IWA or the contacting agency shall upon its own action or upon written request of an authorized representative of the Department of Laborwithhdd or cause to be withheld. from any moneys payable on account of mirk performed by the contractor or subcontractor under any such Contract or any other Federal contract with the sante pnme contractor. or any other federally -assisted contract subject to the Contract Waft I lours and Safety Standards Act. which is held by One same pnrne contractor. such sums as may be detemined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and hquidated damages as provided in the clause set forth in paragraph (2. ) of this section. 4. Subcontracts. The contractor or subcontractor shall insert In any subcontracts the clauses set forth in paragraph (1.) through (4 ) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (1 ) through (4 ) of this section Exhibit 1 - Page 7 of 12 VI. SUBLETTING OR ASSIGNING THE CONTRACT This provision Is applicable to all Federal -aid construction contracts on the National Highway System. 1. The contractor shall perform with Its ovm organization contract week amounting to not less than 30 percent (or a greater percentage d specified elsewhere in the contract) of the total ongrnat contract once, exrJuding any specialty items designated by the contracting agency. Specialty items may be performed by subcontract and the mount of any such specialty Items periomted may be deducted from the total original contract price before computing the amount of work required to be performed by the contractor's own organization (23 CFR 635 116) a. The term 'perform work with its own organization' refers to workers employed or leased by the prune contractor. and equipment owned or rented by the prime contractor with or without operators. Such terirl does not include employees or equipment of a subcontractor or lower tier subcontractor agents of the prime contractor. or any other assignees The term may include payments for the costs of hiring leased employees from an employee leasing firm meeting all relevant Federal and State regulatory requirements. Leased employees may only be included in this term if the pnme contractor meets all of the following conditions - (1) the pnme contractor maintains control over the supervision of the day-to-day activities of the leased employees: (2) the pnme contractor remains responsible for the quality of the work of the leased employees: (3) the pnme contractor retains all power to accept or exclude individual employees from work on the protect: and (4) the prime contractor remains ultimately responsible for the payment of predetemoned minimum wages. the submission of payrolls. statements of compliance and all other Federal regulatory requirements b. "Specialty Items' shall be construed to be limited to work that requires highly specialized knowledge. abilities, or equipment not ordinarily available in the type of contracting organizations qualified and expected to bid or propose on the contract as a whole and in general are to be limited to minor components of the overall contract 2. The contract amount upon which the requirements set forth in paragraph (1) of Section VI is computed includes the cost of material and manufactured products which are to be purchased or produced by the contractor under the contract provisions. 3 The contractor shall furnish (a) a competent supenntendent or supervisor who is employed by the fimh, has full authority to (tract performance of the work in accordance with the contract requirements. and Is in charge of all construction operations (regardless of who perforans the work) and (b) such other of Its own organizational resources (supervision. managementand engineering services) as the contracting officer determines is necessary to assure the performance of Vie contract. 4 No portion of the contract shall be sublet. assigned or othenwse disposed of except with the wntten consent of the contracting officer. or authorized representative, and such consent when given shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract. Wntten consent will be given only after the contracting agency has assured that each subcontract is evidenced In writing and that it contains all pertinent provisions and requirements of the prime contract 5 The 30 self -performance requirement of paragraph (1 ) is not applicable to design -build contracts: however, contracting agencies may establish their own self -performance requirements. VII. SAFETY: ACCIDENT PREVENTION This pr o v i s l o n is applicable to all Federal -aid construction contracts and to all related subcontracts. 1. In the performance o1 this contract the 00093Mor shall comply with all applicable Federal. Stateand local laws governing safety. health, and sanitation (23 CFR 635). The contractor shall provide all safeguardssafety devices and protective equipment and take any other needed actions as it determines, or as the contracting officer may detemrne, to he reasonably necessary to protect the life and health of employees on the lob and the safety of the public and to protect property in connection with the performance of the work covered by the contract. 2 It is a condition of this contract. and shall be made a condition of each subcontract, which the contractor enters into pursuant to this contract, that the contractor and any subcontractor shall not pemiit any employee. in perfomiance of the contract, to work in surroundings or under conditions which are unsanitaryhazardous or dangerous to hisiher health or safety. as deterred under construction safety and health standards (29 CFR 1926) promulgated by the Secretary of Labor. 111 accordance with Section 107 o1 the Contract WOrk I lours and Safety Standards Act (40 U.S C 3704) 3 Pursuant to 29 CFR 1926 .3, it Is a condition of this contract that the Secretary of Labor or authorized representative thereof, shall have right of entry to any site of contract performance to inspect or investigate the matter of compliance with the construction safety and health standards and to carry out the duties of the Secretary under Section 107 of the Contract Work Flours and Safety Standards Act 140 U S C 3704) VIII. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS T his s provision is applicable to all Federal -aid construction contracts and to all related subcontracts. In order to assure high quality and durable construction in confomMy with approved plans and specifications and a high degree of reliability on statements and representations made by engineers, contractors, suppliers and workers on Federal - ad highway protects, itis essential that all persons concerned with the protect perform their functions as carefully. thoroughly. and honestly as possible. Willful falsification. distortion. or misrepresentation with respect to any facts related to the project is a violator) of Federal law. To prevent any misunderstanding regarding the seriousness of these and similar acts. Fomi FI IWA-1022 shall be posted on each Federal -aid highway project (23 CFR 635) in one or more places where it is readily available to all persons concerned with the project 111 U.S.C. 1020 reads as follows: Exhibit 1 - Page 8 of 12 'Whoever, being an officer, agent or employee of the United States. or of any State or Teritoryor whoeverwhether a person. associabon. firm, or corporation, knowingly makes any false statement. false representation. or false report as to the character. quality. quantity, or cost of the matenal used or to be used. or the quantity or quality of the work perforated or to be performed. or the cost thereof in connecbon with the submission of plans. maps, specifications contracts, or costs of constnicton on any highway or related projeCt submitted for approval to the Secretary of Transportation or Whoever knowingly makes any false statement, false representation, false report or false clamp with respect to the character, quality, quantity, or cost of any work perfomhed or to be performed. or materials furnished or to be fumished. in connection with the construction of any highway or related project approved by the Secretary of Transportation: or Whoever knovangly makes any false statement or false representation as to matenat fact in any statement, certificate, or report submitted pursuant to provisions of the Federal -ad Roads Act approved July 1, 1916, (39 Stat. 355). as amended and supplemented - Shall be fined under this title or impnsoned not more than 5 years or both " IX. IMPLEMENTATION or CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT This provision is applicable to all Federal -aid construction contracts and to all related subcontracts By subrnissioi of this bidrproposal or the execution of this contract, a subcontract. as appropnate. the bidder. proposer. Federal -aid construction contractor. or subcontractor. as appropriate. will be deemed to have stipulated as follows' 1. That any person who is or will be utilized in the perfomtance of this contract is not prohibited from receiving an award due to a violation of Section 508 of the Clean Water Act or Section 306 of the Clean Air Act. 2 That the contractor agrees to include or cause to be included the requirements of paragraph (1) of this Section X in every subcontract, and further agrees to take such action as the contracting agency may direct as a means of enforcing suds requirements X. CERTIFICATION REGARDING DEBARMENT, SUSPENSION. INELIGIBILITY AND VOLUNTARY EXCLUSION This provision is applicable to all Federal -aid construction contracts design -build contracts subcontracts, lower -tier subcontractspurchase orderslease agreements consultant contracts Or any other covered transaction requiring FIIWA approval or that is estimated to cost S25, 000 or mare - as defined in 2 CFR Parts 180 and 1200 1. Instructions for Certification - First Tier Participants: a By signing and submttting this proposal, the prospective first ter participant is pmwding the certification set out below. b. The inability of a person to provide the certification set out below will not necessarily result in denial of participation in this 9 covered transaction. The prospective first tier participant shall submit an explanation of why 0 cannot provide the carbfication set out below The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. I lowever. failure of the prospective first tier participant to furnish a Certification or an explanation shall disqualify such a person from parficipaton in this transaction c. The certification in this clause is a material representation of fact upon which reliance was placed when the Contracting agency determined to enter into this transaction. If it is liter deternened that the prospective participant knowingly rendered an erroneous certification, in addition to Other remedies available to the Federal Government. the contracting agency may temrinate this transaction for cause of default d. The pmspective first ter participant shall provide immediate written notice to the contracting agency to whom this proposal is submitted if any time the prospective first ter participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances e. The temps "covered transaction."' -debarred." "suspended." "inetgible"'participant," "person," "pnnapaI " and "voluntarily excluded." as used in this clause, are defined in 2 CFR Parts 180 and 1200 -First Tier Covered Transactions' refers to any covered transaction between a grantee or subgrantee of Federal funds and a participant (such as the prime or general contract) 'Lower Tier Covered Transactions- refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts) "First Tier Participant- refers to the participant who has entered into a covered transaction with a grantee or suhgrantee of Federal funds (such as the prime or general contractor). 'Lower Tier Participant- refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers). 1. The prospective first tier participant agrees by submitting this proposal that. should the proposed covered transaction be entered into, 1 shall not knowingly enter Into any lower ter covered transaction with a person who is debarred, suspended. declared ineligibleor voluntanly excluded from participation in this covered transaction. unless authorized by the department or agency entering into this transaction g. The prospective first ter participant further agrees oy submitting this proposal that it will include the dause teed "Certification Regarding Debarment. Suspension. Ineligibility and Voluntary Exclusion -Lower Tier Covered Transactions " provided by the department or contracting agency. entenng into this covered transactionwithout modificationto all lower ter covered transactions and in all soliatabons for lower tier covered transactions exceeding the S25,000 threshold h A participant in a covered transaction may rely upon a certficafian of a prospective participant in a lower tier covered transaction that is not debarred. suspended. ineligible. or voluntanly excluded from the covered transaction Unless it knows that the certficaton is erroneous. A participant is responsible for ensunng that ds principals are not suspended. debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals. as well as the eligibility of any lower tier prospective participants. each participant may, but is not required to. check the Excluded Parties List System website (htto 'liwvrw eels dov'), which is compiled by tha General Services Administration Exhibit 1 - Page 9 of 12 Nothing contained in the foregoing shall be construed to require the establishment of a system of records in order to render in goal faith the certification required by this clause. The knowledge and information of the prospective participant is not required to exceed that which is normally possessed by a prudent person in the Ordinary course of business dealings J Except for transactions authnnzeci under paragraph (f) of these instructions, d a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred. ineligible, or voluntarily excluded from participation in this transaction. In addrti0n t0 Other remedies available to the Federal Government. the department or agency may terminate this transaction for cause or default. 2. Certification Regarding Debarment. Suspension. Ineligibility and Voluntary Exclusion - First Tier Participants: a. The prospective first tier participant certifies to the best of its knowledge and belief. that it and its pnncipals: (1) Are not presently debarred suspended, proposed for debarment. declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency: {2) I lave not within a three-year period preceding this proposal been convicted of or had a civil Judgment rendered against therm for commission of fraud or a criminal offense in connection with obtainingattempting to obtain. or performing a public (Federal. State or local) transaction or contract under a public transaction: violation of Federal or Stale antitrust statutes or commission of embezzlement, theft, forgery. bribery. falsification or destruction of records. making false statements. or receiving stolen property: (3) Are not presentty Indicted for or otherwise criminally or civilly charged by a governmental entity (Federal. State or local) with commission of any of the offenses enumerated in paragraph (aX2) of Iles certification, and (4) Have not within a three-year period precerfing this application:proposal had one or more public transactions (Federal. State or local) terminated for cause or default b- Where the prospective participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal 2 Instructions for Certification - Lower Tler Participants: (Applicable to all subciintractspurchase orders and other lower tier transactions requrnng pnor Ft IWA approval or estimated to cost 525,000 or more - 2 CFR Parts 180 and 1200) a By signing and submitting this proposalthe prospective lower tier is providing the certification set out below b The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department. or agency with which 10 this transaction originated may pursue available remedies. including suspension andlor debarment c The prospective lower ter participant snail provide immediate written notice to the person to which this proposal is submitted it at any time the prospective lower tier participant learns that its certification was erroneous by reason of changed circumstances d. The terms "covered transaction." "debarred," "suspended." "ineligible." 'participant," "person." "pnnupal." and'Yoluntaniy excluded," a5 used in this clause. are defined in 2 CFR Parts 180 and 1200. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations, 'First Tier Covered Transactions - refers to any covered transaction between a grantee or subgrantee of Federal funds and a participant (such as the prime or general contract). -Lower Tier Covered Transactions' refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). -First Tier Participant refers to the participant who has entered into a covered transaction with a grantee or subgrantee of Federal funds (such as the prime or general contractor). -Lower Tier Participant- refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers) e. The prospective lower tier participant agrees by submitting this proposal that. should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntanly excluded from participation in this covered transaction. unless authonzed by the department or agency with which this transaction originated f. The prospective lower tier participant further agrees by submitting this proposal that it wall include this clause titled "Certification Regarding Debarment. Suspension. ineligibility and Voluntary Exclusion -Lower Tier Covered Transaction." without modification, in all laver ter covered transactions and in all solicitations for lower tier covered transactions exceeding the 525.000 threshold. g A partupant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred. suspended, ineligible. or voluntaniy excluded from the covered transaction. unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred. or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals as well as the eligibility of any lower tier prospective participants. each participant may. but is not required to. check the Excluded Parties List System website (h1105 !iY,W*•l eok5.0ov1). which is compiled by the General Services Administration.. 0 Nothing contained in the foregoing shall be construed to require establishment of a system of records in oder to render in good faith the certification required by this clause The knowledge and information of particapant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. r. Except for transactions authorized under paragraph e of these instructions if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred. ineligible. or voluntanly excluded froom participation in this transaction in addition to other remedies available to the Federal Government. the Exhibit 1- Page 10 of 12 department or agency with which this transaction onginated may pursue available remedies including suspension andror debarment Certification Regarding Debarment. Suspension, Ineligibility and Voluntary Excluslon--Lower Tler Participants: 1, The prospective lower Ler participant certifies, by submission of this proposal. that neither it nor Its pnncapats is presently debarred. suspended. proposed fa' debamient, declared ineligibleor voluntarily excluded from participating in covered transactions by any Federal department or agency 2. Where the prospective lower tier partiapant is unable to certify to any of the statements in this certification such prospective parbapant shall attach an explanation to this proposal XI. CERTIFICATION REGARDING USE OF CONTRACT FUNDS FOR LOBBYING This provision is applicable to alt Federal -aid construction contracts and to all related subcontracts Much exceed 5100,000 149 CFR 201 1. The prospective participant certifies, by signing and submitting this hid or proposal to the best of his or her knowledge and belief, that - a No Federal appropriated funds have been paid or will he paid, by or on behalf of the undersigned. to any person for influencing or attempting to influence an officer or employee of any Federal agency a Member of Congress. an officer or employee of Congress. or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant. the making o1 any Federal loan the entenng into of any cooperative agreement. and the extension. continuation, renewal, amendment, or modification of any Federal contractgrant, loan, or cooperative agreement, b If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to Influence an officer or employee of any Federal agency a Member of Congress, an officer or employee of Congress or an employee of a Member of Congress in connection with this Federal contract, grant. loan, or cooperative agreement. the undersigned shall complete and submit Standard Form -LLL. "Disclosure Form to Report Lobbying." in aec-cxdance with its instructions 2 This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U. S C 1352 Any person who tails to file the required certification shall be subject 10 a civil penally of not less than $10.000 and not more than 5100 000 for each such failure 3. Tha prospective participant also agrees by submitting its hid or proposal that the participant shall require that the language of thus certification be included in all lower tier subcontracts, which exceed 5100,000 and that alt such recipients shall certify and disclose accordingly Exhibit 1- Page 11 of 12 ATTACHMENT A • EMPLOYMENT AND MATERIALS PREFERENCE FOR APPALACHIAN DEVELOPMENT HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS ROAD CONTRACTS This provision is applicable to all Federal -aid projects funded under the Appalachian Regional Development AG1 of 1965 1 Dunng the performance of itis contractthe contractor undertaking to do work which is. or reasonably may be. done as on-site work, shall give preference to qualified persons who regularly reside in the labor area as designated by the DOL wherein the contract work is situated. or the subregionor the Appalachian counties of the State wherein the contract work is situatedexcept a To the extent that qualified persons regularly resiitrng m the area are not available. b. For the reasonable needs of the contractor to employ supervisory or specially expenenced personnel necessary to assure an efficient execution of the contract work. c For the obligation of the contractor 10 offer employment to present or former employees as the result of a lawful collective bargaining contract. provided that the number of nonresident persons employed under this subparagraph (15) shall not exceed 20 percent o1 the total number of employees employed by the contractor on the contract work.. except as provided in subparagraph (4) below. 2. The contractor shall place a job order with the State Employment Service indicating (a) the classitications of the laborers. mechanics and other employees required to perform the contract work. (b) the number of employees required in each classification, (c) the date on which the participant estimates such employees will be required, and (d) any other pertinent infomatton required by the State Employment Service to complete the job order form The job order may be placed with the Stale Employment Service in writing or by telephone If during the course of the contract work. the information submitted by the contractor in the original job order is substantially modified. the participant shall promptly notify the State Employment Service. 3. The contractor shall give full consideration to all qualified job applicants referrer) to Yarn by the State Employment Service. The contractor is not required to grant employment to any job applicants who, in his opinion are not qualified to perform the classification of wok required. 4. If. within one week following the placing of a job order try the contractor with the State Employment Service, the State Employment Service is unable to refer any qualified job applicants to the contractor, or less than the number requested. the State Employment Service will forward a certificate to the contractor indicating the unavailalllity of applicants. Such certificate shalt be made a part of the contractor's pemianent project records Upon receipt of this certificate, the contractor may employ persons who do not normally reside in the labor area to fill positions covered by the certificatenotwithstanding the provisions of subparagraph (10) above. 5 The provisions of 23 CFR 633 207(e) allow the contracting agency to provide a contractual preference for the use of mineral resource materials native to the Appalachian region 6 The contractor shall include the provisions of Sections 1 through 4 of this Attachment A in every subcontract for work which is. or reasonably may be. done as on-site work. Exhibit 1- Page 12 of 12 37. EXHIBIT J — FEDERAL REQUIREMENTS Federal laws and regulations that may be applicable to the Work include: Executive Order 11246 Executive Order 11246 of September 24, 1965 entitled "Equal Employment Opportunity," as amended by Executive Order 11375 of October 13, 1967 and as supplemented in Department of Labor regulations (41 CFR Chapter 60) (All construction contracts awarded in excess of $10,000 by the Local Agencys and their contractors or the Local Agencys). Copeland "Anti-Kickback" Act The Copeland "Anti-Kickback" Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29 CFR Part 3) (All contracts and sub-Agreements for construction or repair). Davis-Bacon Act The Davis-Bacon Act (40 U.S.C. 276a to a-7) as supplemented by Department of Labor regulations (29 CFR Part 5) (Construction contracts in excess of $2,000 awarded by the Local Agencys and the Local Agencys when required by Federal Agreement program legislation. This act requires that all laborers and mechanics employed by contractors or sub-contractors to work on construction projects financed by federal assistance must be paid wages not Tess than those established for the locality of the project by the Secretary of Labor). Contract Work Hours and Safety Standards Act Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327- 330) as supplemented by Department of Labor regulations (29 CFR Part 5). (Construction contracts awarded by the Local Agency's in excess of $2,000, and in excess of $2,500 for other contracts which involve the employment of mechanics or laborers). Clear Air Act Standards, orders, or requirements issued under section 306 of the Clear Air Act (42 U.S.C. 1857(h), section 508 of the Clean Water Act (33 U.S.C. 1368). Executive Order 11738, and Environmental Protection Agency regulations (40 CFR Part 15) (contracts, subcontracts, and sub-Agreements of amounts in excess of $100,000). Energy Policy and Conservation Act Mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94-163). OMB Circulars Office of Management and Budget Circulars A-87, A-21 or A-122, and A-102 or A-110, whichever is applicable. Hatch Act The Hatch Act (5 USC 1501-1508) and Public Law 95-454 Section 4728. These statutes state that federal funds cannot be used for partisan political purposes of any kind by any person or organization involved in the administration of federally-assisted programs. Nondiscrimination 42 USC 6101 et seq. 42 USC 2000d, 29 USC 794, and implementing regulation, 45 C.F.R. Part 80 et. seq. These acts require that no person shall, on the grounds of race, color, national origin, age, or handicap, be excluded from participation in or be subjected to discrimination in any program or activity funded, in whole or part, by federal funds. ADA The Americans with Disabilities Act (Public Law 101-336; 42 USC 12101, 12102, 12111-12117, 12131-12134, 12141-12150, 12161-12165, 12181-12189, 12201-12213 47 USC 225 and 47 USC 611. Uniform Relocation Assistance and Real Property Acquisition Policies Act The Uniform Relocation Assistance and Real Property Acquisition Policies Act, as amended (Public Law 91-646, as amended and Public Law 100-17, 101 Stat. 246-256). (If the contractor Exhibit J - Page 1 of 3 is acquiring real property and displacing households or businesses in the performance of the Agreement). Drug -Free Workplace Act The Drug -Free Workplace Act (Public Law 100-690 Title V, subtitle D, 41 USC 701 et seq.). Age Discrimination Act of 1975 The Age Discrimination Act of 1975, 42 U.S.C. Sections 6101 et. seq. and its implementing regulation, 45 C.F.R. Part 91; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, as amended, and implementing regulation 45 C.F.R. Part 84. 23 C.F.R. Part 172 23 C.F.R. Part 172, concerning "Administration of Engineering and Design Related Contracts". 23 C.F.R Part 633 23 C.F.R Part 633, concerning "Required Contract Provisions for Federal -Aid Construction Contracts". 23 C.F.R. Part 635 23 C.F.R. Part 635, concerning "Construction and Maintenance Provisions". Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973 Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973. The requirements for which are shown in the Nondiscrimination Provisions, which are attached hereto and made a part hereof. Nondiscrimination Provisions: In compliance with Title VI of the Civil Rights Act of 1964 and with Section 162(a) of the Federal Aid Highway Act of 1973, the Contractor, for itself, its assignees and successors in interest, agree as follows: i. Compliance with Regulations The Contractor will comply with the Regulations of the Department of Transportation relative to nondiscrimination in Federally assisted programs of the Department of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the "Regulations"), which are herein incorporated by reference and made a part of this Agreement. ii. Nondiscrimination The Contractor, with regard to the work performed by it after award and prior to completion of the contract work, will not discriminate on the ground of race, color, sex, mental or physical handicap or national origin in the selection and retention of Subcontractors, including procurement of materials and leases of equipment. The Contractor will not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix C of the Regulations. iii. Solicitations for Subcontracts, Including Procurement of Materials and Equipment In all solicitations either by competitive bidding or negotiation made by the Contractor for work to be performed under a subcontract, including procurement of materials or equipment, each potential Subcontractor or supplier shall be notified by the Contractor of the Contractor's obligations under this Agreement and the Regulations relative to nondiscrimination on the ground of race, color, sex, mental or physical handicap or national origin. iv. Information and Reports The Contractor will provide all information and reports required by the Regulations, or orders and instructions issued pursuant thereto and will permit access to its books, records, accounts, other sources of information and its facilities as may be determined by the State or the FHWA to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of the Contractor is in the Exhibit J - Page 2 of 3 exclusive possession of another who fails or refuses to furnish this information, the Contractor shall so certify to the State, or the FHWA as appropriate and shall set forth what efforts have been made to obtain the information. v. Sanctions for Noncompliance In the event of the Contractor's noncompliance with the nondiscrimination provisions of this Agreement, the State shall impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: a. Withholding of payments to the Contractor under the contract until the Contractor complies, and/or b. Cancellation, termination or suspension of the contract, in whole or in part. Incorporation of Provisions §22 The Contractor will include the provisions of this Exhibit J in every subcontract, including procurement of materials and leases of equipment, unless exempt by the Regulations, orders, or instructions issued pursuant thereto. The Contractor will take such action with respect to any subcontract or procurement as the State or the FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance; provided, however, that, in the event the Contractor becomes involved in, or is threatened with, litigation with a Subcontractor or supplier as a result of such direction, the Contractor may request the State to enter into such litigation to protect the interest of the State and in addition, the Contractor may request the FHWA to enter into such litigation to protect the interests of the United States. Exhibit J - Page 3 of 3 38. EXHIBIT K — SUPPLEMENTAL FEDERAL PROVISIONS State of Colorado Supplemental Provisions for Federally Funded Contracts, Grants, and Purchase Orders Subject to The Federal Funding Accountability and Transparency Act of 2006 (FFATA), As Amended Revised as of 3-20-13 The contract, grant, or purchase order to which these 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 contract or any attachments or exhibits incorporated into and made a part of the contract, the provisions of these 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 of Federal financial assistance that a non -Federal Entity receives or administers in the form of: 1.1.1.Grants; 1.1.2.Contracts; 1.1.3. Cooperative agreements, which do not include cooperative research and development agreements (CRDA) pursuant to the Federal Technology Transfer Act of 1986, as amended (15 U.S.C. 3710); 1.1.4.Loans; 1.1.5.Loan Guarantees; 1.1.6.Subsidies; 1.1.7.Insurance; 1.1.8.Food commodities; 1.1.9.Direct appropriations; 1.1.10. Assessed and voluntary contributions; and 1.1.11. Other financial assistance transactions that authorize the expenditure of Federal funds by non -Federal Entities. Award does not include: 1.1.12. Technical assistance, which provides services in lieu of money; 1.1.13. A transfer of title to Federally -owned property provided in lieu of money; even if the award is called a grant; 1.1.14. Any award classified for security purposes; or 1.1.15. Any award funded in whole or in part with Recovery funds, as defined in section 1512 of the American Recovery and Reinvestment Act (ARRA) of 2009 (Public Law 111-5). 1.2. "Contract" means the contract to which these Supplemental Provisions are attached and includes all Award types in §1.1.1 through 1.1.11 above. 1.3. "Contractor" means the party or parties to a Contract funded, in whole or in part, with Federal financial assistance, other than the Prime Recipient, and includes grantees, subgrantees, Subrecipients, and borrowers. For purposes of Transparency Act reporting, Contractor does not include Vendors. 1.4. "Data Universal Numbering System (DUNS) Number" means the nine -digit number established and assigned by Dun and Bradstreet, Inc. to uniquely identify a business entity. Dun and Bradstreet's website may be found at: http://fedgov.dnb.com/webform. 1.5. "Entity" means all of the following as defined at 2 CFR part 25, subpart C; 1.5.1. A governmental organization, which is a State, local government, or Indian Tribe; 1.5.2.A foreign public entity; Exhibit K - Page 1 of 4 1.5.3.A domestic or foreign non-profit organization; 1.5.4.A domestic or foreign for-profit organization; and 1.5.5. A Federal agency, but only a Subrecipient under an Award or Subaward to a non -Federal entity. 1.6. "Executive" means an officer, managing partner or any other employee in a management position. 1.7. "Federal Award Identification Number (FAIN)" means an Award number assigned by a Federal agency to a Prime Recipient. 1.8. "FFATA" means the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109- 282), as amended by §6202 of Public Law 110-252. FFATA, as amended, also is referred to as the "Transparency Act." 1.9. "Prime Recipient" means a Colorado State agency or institution of higher education that receives an Award. 1.10. "Subaward" means a legal instrument pursuant to which a Prime Recipient of Award funds awards all or a portion of such funds to a Subrecipient, in exchange for the Subrecipient's support in the performance of all or any portion of the substantive project or program for which the Award was granted. 1.11. "Subrecipient" means a non -Federal Entity (or a Federal agency under an Award or Subaward to a non -Federal Entity) receiving Federal funds through a Prime Recipient to support the performance of the Federal project or program for which the Federal funds were awarded. A Subrecipient is subject to the terms and conditions of the Federal Award to the Prime Recipient, including program compliance requirements. The term "Subrecipient" includes and may be referred to as Subgrantee. 1.12. "Subrecipient Parent DUNS Number" means the subrecipient parent organization's 9-digit Data Universal Numbering System (DUNS) number that appears in the subrecipient's System for Award Management (SAM) profile, if applicable. 1.13. "Supplemental Provisions" means these Supplemental Provisions for Federally Funded Contracts, Grants, and Purchase Orders subject to the Federal Funding Accountability and Transparency Act of 2006, As Amended, as may be revised pursuant to ongoing guidance from the relevant Federal or State of Colorado agency or institution of higher education. 1.14. "System for Award Management (SAM)" means the Federal repository into which an Entity must enter the information required under the Transparency Act, which may be found at http://www.sam.gov. 1.15. "Total Compensation" means the cash and noncash dollar value earned by an Executive during the Prime Recipient's or Subrecipient's preceding fiscal year and includes the following: 1.15.1. Salary and bonus; 1.15.2. Awards of stock, stock options, and stock appreciation rights, using the dollar amount recognized for financial statement reporting purposes with respect to the fiscal year in accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2005) (FAS 123R), Shared Based Payments; 1.15.3. Earnings for services under non-equity incentive plans, not including group life, health, hospitalization or medical reimbursement plans that do not discriminate in favor of Executives and are available generally to all salaried employees; 1.15.4. Change in present value of defined benefit and actuarial pension plans; 1.15.5. Above-market earnings on deferred compensation which is not tax-qualified; 1.15.6. Other compensation, if the aggregate value of all such other compensation (e.g. severance, termination payments, value of life insurance paid on behalf of the employee, perquisites or property) for the Executive exceeds $10,000. 1.16. "Transparency Act" means the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109-282), as amended by §6202 of Public Law 110-252. The Transparency Act also is referred to as FFATA. Exhibit K - Page 2 of 4 1.17 "Vendor" means a dealer, distributor, merchant or other seller providing property or services required for a project or program funded by an Award. A Vendor is not a Prime Recipient or a Subrecipient and is not subject to the terms and conditions of the Federal award. Program compliance requirements do not pass through to a Vendor. 2. Compliance. Contractor shall comply with all applicable provisions of the Transparency Act and the regulations issued pursuant thereto, including but not limited to these Supplemental Provisions. Any revisions to such provisions or regulations shall automatically 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 Contractor of such revisions, but such notice shall not be a condition precedent to the effectiveness of such revisions. 3. System for Award Management (SAM) and Data Universal Numbering System (DUNS) Requirements. 3.1. SAM. Contractor shall maintain the currency of its information in SAM until the Contractor submits the final financial report required under the Award or receives final payment, whichever is later. Contractor shall review and update SAM information at least annually after the initial registration, and more frequently if required by changes in its information. 3.2. DUNS. Contractor shall provide its DUNS number to its Prime Recipient, and shall update Contractor's information in Dun & Bradstreet, Inc. at least annually after the initial registration, and more frequently if required by changes in Contractor's information. 4. Total Compensation. Contractor shall include Total Compensation in SAM for each of its five most highly compensated Executives for the preceding fiscal year if: 4.1. The total Federal funding authorized to date under the Award is $25,000 or more; and 4.2. In the preceding fiscal year, Contractor received: 4.2.1. 80% or more of its annual gross revenues from Federal procurement contracts and subcontracts and/or Federal financial assistance Awards or Subawards subject to the Transparency Act; and 4.2.2. $25,000,000 or more in annual gross revenues from Federal procurement contracts and subcontracts and/or Federal financial assistance Awards or Subawards subject to the Transparency Act; and 4.3. The public does not have access to information about the compensation of such Executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d) or § 6104 of the Internal Revenue Code of 1986. 5. Reporting. Contractor shall report data elements to SAM and to the Prime Recipient as required in §7 below if Contractor is a Subrecipient for the Award pursuant to the Transparency Act. No direct payment shall be made to Contractor for providing any reports required under these Supplemental Provisions and the cost of producing such reports shall be included in the Contract price. The reporting requirements in §7 below are based on guidance from the US Office of Management and Budget (OMB), and as such are subject to change at any time by OMB. Any such changes shall be automatically incorporated into this Contract and shall become part of Contractor's obligations under this Contract, as provided in §2 above. The Colorado Office of the State Controller will provide summaries of revised OMB reporting requirements at http://www.colorado.qov/dpa/dfp/sco/FFATA.htm. 6. Effective Date and Dollar Threshold for Reporting. The effective date of these Supplemental Provisions apply to new Awards as of October 1, 2010. Reporting requirements in §7 below apply to new Awards as of October 1, 2010, if the initial award is $25,000 or more. If the initial Award is below $25,000 but subsequent Award modifications result in a total Award of $25,000 or more, the Award is subject to the reporting requirements as of the date the Award exceeds $25,000. If the initial Award is $25,000 or more, but funding is subsequently de -obligated such that the total award amount falls below $25,000, the Award shall continue to be subject to the reporting requirements. Exhibit K - Page 3 of 4 7. Subrecipient Reporting Requirements. If Contractor is a Subrecipient, Contractor shall report as set forth below. 7.1 ToSAM. A Subrecipient shall register in SAM and report the following data elements in SAM for each Federal Award Identification Number no later than the end of the month following the month in which the Subaward was made: 7.1.1 Subrecipient DUNS Number; 7.1.2 Subrecipient DUNS Number + 4 if more than one electronic funds transfer (EFT) account; 7.1.3 Subrecipient Parent DUNS Number; 7.1.4 Subrecipient's address, including: Street Address, City, State, Country, Zip + 4, and Congressional District; 7.1.5 Subrecipient's top 5 most highly compensated Executives if the criteria in §4 above are met; and 7.1.6 Subrecipient's Total Compensation of top 5 most highly compensated Executives if criteria in §4 above met. 7.2 To Prime Recipient. A Subrecipient shall report to its Prime Recipient, upon the effective date of the Contract, the following data elements: 7.2.1 Subrecipient's DUNS Number as registered in SAM. 7.2.2 Primary Place of Performance Information, including: Street Address, City, State, Country, Zip code + 4, and Congressional District. 8. Exemptions. 8.1. These Supplemental Provisions do not apply to an individual who receives an Award as a natural person, unrelated to any business or non-profit organization he or she may own or operate in his or her name. 8.2 A Contractor with gross income from all sources of less than $300,000 in the previous tax year is exempt from the requirements to report Subawards and the Total Compensation of its most highly compensated Executives. 8.3 Effective October 1, 2010, "Award" currently means a grant, cooperative agreement, or other arrangement as defined in Section 1.1 of these Special Provisions. On future dates "Award" may include other items to be specified by OMB in policy memoranda available at the OMB Web site: Award also will include other types of Awards subject to the Transparency Act. 8.4 There are no Transparency Act reporting requirements for Vendors. Event of Default. Failure to comply with these Supplemental Provisions shall constitute an event of default under the Contract and the State of Colorado may terminate the Contract 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 Contract, at law or in equity. Exhibit K - Page 4 of 4