02-09-2011 SERVICES AGREEMENT-OPERATIONS FACILITY PROJECTTOWN OF AVON
PROFESSIONAL SERVICES AGREEMENT
Independent Contractor
Cost Plus Fixed Fee — Not to Exceed Total Price
Town Council Approval
Project/Services Name: 1 -70 Regional Transportation Operations Facility
Project
THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement ") is entered into by and
between, Camp Dresser and Mckee, a corporation of the State of Colorado, whose
business address is 555 17th Street, Denver, Colorado, 80202 ( "Contractor ") and the
TOWN OF AVON, COLORADO ( "Town "), a Home Rule municipality of the State of
Colorado. The Town and the Contractor may be collectively referred to as the "Parties."
RECITALS AND REPRESENTATIONS
WHEREAS, the Town desires to have performed certain professional services as
described in this Agreement; and
WHEREAS, the Contractor represents that the Contractor has the skill, ability, and
expertise to perform the services described in this Agreement and within the deadlines
provided by the Agreement; and.
WHEREAS, the Town desires to engage the Contractor to provide the services
described in this Agreement subject to the terms and conditions of the Agreement.
NOW, THEREFORE, in consideration of the benefits and obligations of this Agreement,
the Parties mutually agree as follows:
1.0 SERVICES AND CONTRACTOR PERFORMANCE
1.1 Services. As directed by and under the supervision of the Town Engineer for
the Town of Avon, the Contractor shall provide the Town with the services
described in Exhibit A (the "Services ").
1.2 Changes to Services. The Town may request a change or changes in the
Services. Any changes that are mutually agreed upon between the Town and
the Contractor shall be made in writing and upon execution by both Parties
shall become an amendment to the Services described in this Agreement. To
be effective, any written change must be signed by the Contractor and by the
Town Council, the Town Manager, or by a person expressly authorized in
writing to sign on behalf of the Town.
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1.3 Independent Contractor. The Contractor shall perform the Services as an
independent contractor and shall not be deemed by virtue of this Agreement
to have entered into any partnership, joint venture, employer /employee or
other relationship with the Town other than as a contracting party and
independent contractor. The Town shall not be obligated to secure, and shall
not provide, any insurance coverage or employment benefits of any kind or
type to or for the Contractor or the Contractor's employees, sub - consultants,
contractors, agents, or representatives, including coverage or benefits related
but not limited to: local, state, or federal income or other tax contributions;
insurance contributions (e.g., FICA); workers' compensation; disability, injury,
or health; professional liability insurance, errors and omissions insurance; or
retirement account contributions.
1.4 Standard of Performance. In performing the Services, the Contractor shall
use that degree of care, skill, and professionalism ordinarily exercised under
similar circumstances by members of the same profession practicing in the
State of Colorado. Contractor represents to the Town that the Contractor is,
and its employees performing such Services are, properly licensed and /or
registered within the State of Colorado for the performance of the Services (if
licensure and /or registration is required by applicable law) and that the
Contractor and employees possess the skills, knowledge, and abilities to
competently, timely, and professionally perform the Services in accordance
with this Agreement.
1.5 Anticipated Project Schedule. The following is a list of anticipated milestone
dates for the Project:
• Notice to Proceed — February 9, 2011
• Commencement of construction Request for Qualifications — May
9, 2011
• Value Engineering Report Complete — June 6, 2011
• Construction Mobilization —August 1, 2011
Contractor's services shall be performed as expeditiously as is consistent with
services provided by firms with a high level of expertise and skill and the orderly
progress of the Project. The Contractor shall provide a detailed schedule for the
performance of professional services upon award which will be consistent with
the dates shown above. The schedule shall include allowances of time for Town
review and for approval by other outside entities required by the Project.
Contractor agrees to work in an expeditious manner within the sound exercise of
its judgment and Standard of Care in the performance of the Agreement. Time is
of the Essence in the performance of this Agreement. By executing this
Agreement, Contractor confirms that the time limitations set forth herein for the
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performance of the Contractor's services are reasonable periods for performing
its services hereunder. .
2.0 COMPENSATION
2.1 Commencement of and Compensation for Services. Following execution of
this Agreement by the Town, the Contractor shall be authorized to commence
performance of the Services as described in Exhibit A subject to the
requirements and limitations on compensation as provided by this Section 2.0
and its subsections.
A. Cost Plus fixed Fee Contract — Not to Exceed Amount. The Contractor
shall perform the Services and shall invoice the Town for work performed
based on the rates and /or compensation methodology described in
Exhibit B. Total compensation (including all reimbursable expenses)
shall not exceed One Million, Two Hundred seventy three thousand nine
hundred eight dollars ($1,273,908.00). The Town Manager is authorized
to add Add Alternate 1 at a subsequent date.
B. Reimbursable Expenses. The following shall be considered "reimbursable
expenses" for purposes of this Agreement and may be billed to the Town
without administrative mark -up but which must be accounted for by the
Contractor and proof of payment shall be provided by the Contractor with
the Contractor's monthly invoices:
• Vehicle Mileage (billed at not more than the prevailing per mile charge
permitted by the Internal Revenue Service as a deductible business
expense)
• Printing and Photocopying Related to the Services
• Long Distance Telephone Charges Related to the Services
• Charges incidental to securing needed information (e.g., charges imposed
to obtain recorded documents)
• Postage and Delivery Services
• Lodging and Meals (only with prior written approval of the Town as to
dates and maximum amount)
• Subcontractor.or subconsultant fees
C. Non - reimbursable Costs Charges Fees, or Other Expenses. Any fee,
cost, charge, fee, or expense incurred by the Contractor not otherwise
specifically authorized by this Agreement shall be deemed a non-
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reimbursable cost and shall be borne by the Contractor and shall not be
billed or invoiced to the Town and shall not be paid by the Town.
D. Increases in Compensation or Reimbursable Expenses. Any increases or
modification of compensation or reimbursable expenses shall be subject
to the approval of the Town and shall be made only by written amendment
of this Agreement executed by both Parties.
2.2 Payment Processing. The Contractor shall submit invoices and requests for
payment in a form acceptable to the Town. Invoices shall not be submitted
more often than once each month unless otherwise approved by this
Agreement or in writing by the Town. Unless otherwise directed or accepted
by the Town, all invoices shall contain sufficient information to account for all
Contractor time (or other appropriate measure(s) of work effort) and all
authorized reimbursable expenses for the Services during the stated period of
the invoice. Following receipt of a Contractor's invoice, the Town shall
promptly review the Contractor's invoice.
2.3 Town Dispute of Invoice or Invoiced Item(s). The Town may dispute any
Contractor time, reimbursable expense, and /or compensation requested by
the Contractor described in any invoice and may request additional
information from the Contractor substantiating any and all compensation
sought by the Contractor before accepting the invoice. When additional
information is requested by the Town, the Town shall advise the Contractor in
writing, identifying the specific item(s) that are in dispute and giving specific
reasons for any request for information. The Town shall pay the Contractor
within forty -five (45) days of the receipt of an invoice for any undisputed
charges or, if the Town disputes an item or invoice and additional information
is requested, within thirty (30) days of acceptance of the item or invoice by the
Town following receipt of the information requested and resolution of the
dispute. To the extent possible, undisputed charges within the same invoice
as disputed charges shall be timely paid in accordance with this Agreement.
Payment by the Town shall be deemed made and completed upon hand
delivery to the Contractor or designee of the Contractor or upon deposit of
such payment or notice in the U.S. Mail, postage pre -paid, addressed to the
Contractor.
3.0 CONTRACTOR'S GENERAL RESPONSIBILITIES
3.1 The Contractor shall become fully acquainted with the available information
related to the Services. The Contractor is obligated to affirmatively request
from the Town such information that the Contractor, based on the
Contractor's professional experience, should reasonably expect is available
and which would be relevant to the performance of the Services.
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3.2 The Contractor shall perform the Services in accordance with this Agreement
and shall promptly inform the Town concerning ambiguities and uncertainties
related to the Contractor's performance that are not addressed by the
Agreement.
3.3 The Contractor shall provide all of the Services in a timely and professional
manner.
3.4 The Contractor shall promptly comply with any written Town request for the
Town or any of its duly authorized representatives to reasonably access and
review any books, documents, papers, and records of the Contractor that are
pertinent to the Contractor's performance under this Agreement for the
purpose of the Town performing an audit, examination, or other review of the
Services.
3.5 The Contractor shall comply with all applicable federal, state and local laws,
ordinances, regulations, and resolutions.
3.6 The Contractor shall be responsible at the Contractor's expense for obtaining,
and maintaining in a valid and effective status, all licenses and permits
necessary to perform the Services unless specifically stated otherwise in this
Agreement.
4.0 TERM AND TERMINATION
4.1 Term. This Agreement shall be effective on the 9th day of February, 2011
at 12:01 a.m., ( "Effective Date ") and shall terminate at 11:59 p.m. on
December 31, 2013, or on a prior date of completion of the Services or
termination as may be permitted by this Agreement; provided, however, that
the Parties may mutually agree in writing to the monthly extension of this
Agreement for up to twelve (12) consecutive calendar months if such
extension is approved by the Town Manager, Town Council and the
Contractor and such extension does not alter or amend any of the terms or
provisions of this Agreement.
4.2 Continuing Services Required. The Contractor shall perform the Services in
accordance with this Agreement commencing on the Effective Date until such
Services are terminated or suspended in accordance with this Agreement.
The Contractor shall not temporarily delay, postpone, or suspend the
performance of the Services without the written consent of the Town Council,
Town Manager, or a person expressly authorized in writing to direct the
Contractor's services.
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4.3 Town Unilateral Termination. This Agreement may be terminated by the
Town for any or no reason upon written notice delivered to the Contractor at
least ten (10) days prior to termination. In the event of the Town's exercise of
the right of unilateral termination as provided by this paragraph:
A. Unless otherwise provided in any notice of termination, the Contractor
shall provide no further services in connection with this Agreement after
receipt of a notice of termination; and
B. All finished or unfinished documents, data, studies and reports prepared
by the Contractor pursuant to this Agreement shall be delivered by the
Contractor to the Town and shall become the property of the Town; and
C. The Contractor shall submit to the Town a final accounting and final
invoice of charges for all outstanding and unpaid Services and
reimbursable expenses performed prior to the Contractor's receipt of
notice of termination and for any services authorized to be performed by
the notice of termination as provided by Section 4.3(A) above. Such final
accounting and final invoice shall be delivered to the Town within thirty
(30) days of the date of termination; thereafter, no other invoice, bill, or
other form of statement of charges owing to the Contractor shall be
submitted to or accepted by the Town.
4.4 Termination for Non - Performance. Should a party to this Agreement fail to
materially perform in accordance with the terms and conditions of this
Agreement, this Agreement may be terminated by the performing party if the
performing party first provides written notice to the non - performing party
which notice shall specify the non - performance, provide both a demand to
cure the non - performance and reasonable time to cure the non - performance,
and state a date upon which the Agreement shall be terminated if there is a
failure to timely cure the non - performance. For purpose of this Section 4.4,
"reasonable time" shall be not less than five (5) business days. In the event
of a failure to timely cure a non - performance and upon the date of the
resulting termination for non - performance, the Contractor prepare a final
accounting and final invoice of charges for all performed but unpaid Services
and authorized reimbursable expenses. Such final accounting and final
invoice shall be delivered to the Town within fifteen (15) days of the date of
termination; thereafter, no other invoice, bill, or other form of statement of
charges owing to the Contractor shall be submitted to or accepted by the
Town. Provided that notice of non - performance is provided in accordance
with this Section 4.3, nothing in this Section 4.3 shall prevent, preclude, or
limit any claim or action for default or breach of contract resulting from non-
performance by a Party.
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4.5 Unilateral Suspension of Services. The Town may suspend the Contractor's
performance of the Services at the Town's discretion and for any reason by
delivery of written notice of suspension to the Contractor which notice shall
state a specific date of suspension. Upon receipt of such notice of
suspension, the Contractor shall immediately cease performance of the
Services on the date of suspension except: (1) as may be specifically
authorized by the notice of suspension (e.g., to secure the work area from
damage due to weather or to complete a specific report or study); or (2) for
the submission of an invoice for Services performed prior to the date of
suspension in accordance with this Agreement.
4.6 Reinstatement of Services Following Town's Unilateral Suspension. The
Town may at its discretion direct the Contractor to continue performance of
the Services following suspension. If such direction by the Town is made
within (30) days of the date of suspension, the Contractor shall recommence
performance of the Services in accordance with this Agreement. If such
direction to recommence suspended Services is made more than thirty -one
(31) days following the date of suspension, the Contractor may elect to:
(1) provide written notice to the Town that such suspension is considered a
unilateral termination of this Agreement pursuant to Section 4.3; or
(2) recommence performance in accordance with this Agreement; or (3) if
suspension exceeded sixty (60) consecutive days, request from the Town an
equitable adjustment in compensation or a reasonable re -start fee and, if
such request is rejected by the Town, to provide written notice to the Town
that such suspension and rejection of additional compensation is considered
a unilateral termination of this Agreement pursuant to Section 4.3. Nothing in
this Agreement shall preclude the Parties from executing a written
amendment or agreement to suspend the Services upon terms and conditions
mutually acceptable to the Parties for any period of time.
4.7 Delivery of Notice of Termination. Any notice of termination permitted by this
Section 4.0 and its subsections shall be addressed to the person signing this
Agreement on behalf of either Town or Contractor at the address shown
below or such other address as either party may notify the other of and shall
be deemed given upon delivery if personally delivered, or forty -eight (48)
hours after deposited in the United States mail, postage prepaid, registered or
certified mail, return receipt requested.
5.0 INSURANCE
5.1 Insurance Generally. The Contractor shall obtain and shall continuously
maintain during the term of this Agreement insurance of the kind and in the
minimum amounts specified in this Section 5.1. The insurance required
herein shall be procured and maintained with insurers with an A- or better
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rating as determined by Best's Key Rating Guide. All required insurance shall
be continuously maintained to cover all liability, claims, demands, and other
obligations assumed by the Contractor.
A. Worker's Compensation Insurance in the minimum amount required by
applicable law for all employees and other persons as may be required by
law. Such policy of insurance shall be endorsed to.include the Town as a
Certificate Holder.
B. Comprehensive General Liability insurance with minimum combined single
limits of Two Million Dollars ($2,000,000.00) Dollars each occurrence and
of Four Million Dollars ($4,000,000.00) aggregate. The policy shall be
applicable to all premises and all operations of the Contractor. The policy
shall include coverage for bodily injury, broad form property damage
(including completed operations), personal injury (including coverage for
contractual and employee acts), blanket contractual, independent
contractors, products, and completed operations. The policy shall contain
a severability of interests provision. Coverage shall be provided on an
"occurrence basis as opposed to a "claims made" basis. Such insurance
shall be endorsed to name the Town as Certificate Holder and name the
Town, and its elected officials, officers, employees and agents as
additional insured parties.
C. Comprehensive Automobile Liability insurance with minimum combined
single limits for bodily injury of not less than of One Hundred Thousand
Dollars ($100,000.00) each person and each accident and for property
damage of not less than Fifty Thousand Dollars ($50,000.00) each
accident with respect to each of the Contractor's owned, hired and non -
owned vehicles assigned to or used in performance of the Services. The
policy shall contain a severability of interests provision. Such insurance
coverage must extend to all levels of subcontractors. Such coverage must
include all automotive equipment used in the performance of the
Agreement, both on the work site and off the work site, and such coverage
shall include non - ownership and hired cars coverage. Such insurance
shall be endorsed to name the Town as Certificate Holder and name the
Town, and its elected officials, officers, employees and agents as
additional insured parties.
D. Professional Liability (errors and omissions) Insurance with a minimum
limit of coverage of Two Million Dollars ($2,000,000.00) per claim and
Four Million Dollars ($4,000,000) annual aggregate. Such policy of
insurance shall be obtained and maintained for two (2) year following
completion of all Services under this Agreement. Such policy of insurance
shall be endorsed to include the Town as a Certificate Holder.
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5.2 Additional Requirements for All Policies. In addition to specific requirements
imposed on insurance by this Section 5.0 and its subsections, insurance shall
conform to all of the following:
A. For both Contractor Insurance and Required Insurance, all policies of
insurance shall be primary insurance, and any insurance carried by the
Town, its officers, or its employees shall be excess and not contributory
insurance to that provided by the Contractor; provided, however, that the
Town shall not be obligated to obtain or maintain any insurance
whatsoever for any claim, damage, or purpose arising from or related to
this Agreement and the Services. The Contractor shall not be an insured
party for any Town - obtained insurance policy or coverage.
B. For both Contractor Insurance and Required Insurance, the Contractor
shall be solely responsible for any deductible losses.
C. For Required Insurance, no policy of insurance shall contain any exclusion
for bodily injury or property damage arising from completed operations.
D. ' For Required Insurance, every policy of insurance shall provide that the
Town will receive notice no less than thirty (30) days prior to any
cancellation, termination, or a material change in such policy.
5.3 Failure to Obtain or Maintain Insurance. The Contractor's failure to obtain
and continuously maintain policies of insurance in accordance with this
Section 5.0 and its subsections shall not limit, prevent, preclude, excuse, or
modify any liability, claims, demands, or other obligations of the Contractor
arising from performance or non - performance of this Agreement. Failure on
the part of the Contractor to obtain and to continuously maintain policies
providing the required coverage, conditions, restrictions, notices, and
minimum limits shall constitute a material breach of this Agreement upon
which the Town may immediately terminate this Agreement, or, at its
discretion, the Town may procure or renew any such policy or any extended
reporting period thereto and may pay any and all premiums in connection
therewith, and all monies so paid by the Town shall be repaid by Contractor to
the Town immediately upon demand by the Town, or at the Town's sole
discretion, the Town may offset the cost of the premiums against any monies
due to the Contractor from the Town pursuant to this Agreement.
5.4 Insurance Certificates. Prior to commencement of the Services, the
Contractor shall submit to the Town certificates of insurance for all Required
Insurance. Insurance limits, term of insurance, insured parties, and other
information sufficient to demonstrate conformance with this Section 5.0 and
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its subsections shall be indicated on each certificate of insurance.
Certificates of insurance shall reference the Project Name as identified on the
first page of this Agreement. The Town may request and the Contractor shall
provide within three (3) business days of such request a current certified copy
of any policy of Required Insurance and any endorsement of such policy.
The Town may, at its election, withhold payment for Services until the
requested insurance policies are received and found to be in accordance with
the Agreement.
6.0 OWNERSHIP OF DOCUMENTS
Any work product, materials, and documents produced by the Contractor, for which the
Contractor has been compensated, pursuant to this Agreement, whether delivered to
the Town or not, shall become property of the Town of Avon and shall not be made
subject to any copyright unless authorized by the Town. Other materials, methodology
and proprietary work used or provided by the Contractor to the Town not specifically
created and delivered pursuant to the Services outlined in this Agreement may be
protected by a copyright held by the Contractor and the Contractor reserves all rights
granted to it by any copyright. The Town shall not reproduce, sell, or otherwise make
copies .of any copyrighted material, subject to the following exceptions: (1) for exclusive
use internally by Town staff and /or employees; or (2) pursuant to a request under the
Colorado Open Records Act, § 24 -72 -203, C.R.-S., to the extent that such statute
applies; or (3) pursuant to law, regulation, or court order. The Contractor waives any
right to prevent its name from being used in connection with the Services.
7.0 CONFLICT OF INTEREST
The Contractor shall refrain from providing services to other persons, firms, or entities
that would create a conflict of interest for the Contractor with regard to providing the
Services pursuant to this Agreement. The Contractor shall not offer or provide anything
of benefit to any Town official or employee that would place the official or employee in a
position of violating the public trust as provided by C.R.S. § 24 -18 -109, as amended, or
any Town — adopted Code of Conduct or ethical principles.
8.0 REMEDIES
In addition to any other remedies provided for in this Agreement, and without limiting its
remedies available at law, the Town may exercise the following remedial actions if the
Contractor substantially fails to perform the duties and obligations of this Agreement.
Substantial failure to perform the duties and obligations of this Agreement shall mean a
significant, insufficient, incorrect, or improper performance, activities or inactions by the
Contractor. The remedial actions include:
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i. Suspend the Contractor's performance pending necessary corrective
action as specified by the Town without the Contractor's entitlement to an
adjustment in any charge, fee, rate, price, cost, or schedule; and /or
ii. Withhold payment to the Contractor until the necessary services or
corrections in performance are satisfactorily completed; and /or
iii. Deny payment for those services which have not been satisfactorily
performed,. and which, due to circumstances caused by the Contractor,
can not be performed, or if performed would be of .no value to the Town;
and /or
iv. Terminate this Agreement in accordance with this Agreement.
If the Agreement is terminated by the Town for cause based on Contractor's negligent
performance, Contractor shall be liable and responsible for all expenses incurred by the
Town in selecting an alternate contractor and advancing the alternate contractor's
scope of professional services to a similar level of progress to the date of termination of
Agreement, to the extent such expenses are caused by or result from Contractor's
negligent performance.
The foregoing remedies are cumulative and the Town, it its sole discretion, may
exercise any or all of the remedies individually or simultaneously.
9.0 MISCELLANEOUS PROVISIONS
9.1 No Waiver of Rights: A waiver by any Party to this Agreement of the breach
of any term or provision of this Agreement shall not operate or be construed
as a waiver of any subsequent breach by either Party. The Town's approval
or acceptance of, or payment for, services shall not be construed to operate
as a waiver of any rights or benefits to be provided under this Agreement. No
covenant or term of this Agreement shall be deemed to be waived by the
Town except in writing signed by the Town Council or by a person expressly
authorized to sign such waiver by resolution of the Town Council of the Town
of Avon, and any written waiver of a right shall not be construed to be a
waiver of any other right or to be a continuing waiver unless specifically
stated.
9.2 No Waiver of Governmental Immunity: Nothing in this Agreement shall be
construed to waive, limit, or otherwise modify any governmental immunity that
may be available by law to the Town, its officials, employees, contractors, or
agents, or any other person acting on behalf of the Town and, in particular,
governmental immunity afforded or available pursuant to the Colorado
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Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado
Revised Statutes.
9.3 Affirmative Action: Contractor will not discriminate against any employee or
applicant for employment because of race, color, religion, sex or national
origin. Contractor will take affirmative action to ensure applicants are
employed, and employees are treated during employment without regard to
their race, color, religion, sex or national origin. Such action shall include, but
not be limited to the following: employment, upgrading, demotion or transfer;
recruitment .or recruitment advertising; layoff or termination; rates of pay or
other forms of compensation; and selection for training, including
apprenticeship.
9.4 Binding Effect: The Parties agree that this Agreement, by its terms, shall be
binding upon the successors, heirs, legal representatives, and assigns;
provided that this Section 9.4 shall not authorize assignment.
9.5 No Third Party Beneficiaries: Nothing contained in this Agreement is
intended to or shall create a contractual relationship with, cause of action in
favor of, or claim for relief for, any third party, including any agent, sub -
consultant or sub - contractor of Contractor. Absolutely no third party
beneficiaries are intended by this Agreement. Any third -party receiving a
benefit from this Agreement is an incidental and unintended beneficiary only.
9.6 Article X, Section 20/TABOR: The Parties understand and acknowledge that
the Town is subject to Article X, § 20 of the Colorado Constitution ( "TABOR ").
The Parties do not intend to violate the terms and requirements of TABOR by
the execution of this Agreement. It is understood and agreed that this
Agreement does not create a multi - fiscal year direct or indirect debt or
obligation within the meaning of TABOR and, therefore, notwithstanding
anything in this Agreement to the contrary, all payment obligations of the
Town are expressly dependent and conditioned upon the continuing
availability of funds beyond the term of the Town's current fiscal period ending
upon the next succeeding December 31. Financial obligations of the Town
payable after the current fiscal year are contingent upon funds for that
purpose being appropriated, budgeted, and otherwise made available in
accordance with the rules, regulations, and resolutions of Town of Avon, and
other applicable law. Upon the failure to appropriate such funds, this
Agreement shall be terminated.
9.7 Governinq Law, Venue, and Enforcement: This Agreement shall be governed
by and interpreted according to the law of the State of Colorado. Venue for
any action arising under this Agreement shall be in the appropriate court for
Eagle County, Colorado. To reduce the cost of dispute resolution and to
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expedite the resolution of disputes under this Agreement, the Parties hereby
waive any and all right either may have to request a jury trial in any civil action
relating primarily to the enforcement of this Agreement. The Parties agree
that the rule that ambiguities in a contract are to be construed against the
drafting party shall not apply to the interpretation of this Agreement. If there is
any conflict between the language of this Agreement and any exhibit or
attachment, the language of this Agreement shall govern.
9.8 Survival of Terms and Conditions: The Parties understand and agree that all
terms and conditions of the Agreement that require continued performance,
compliance, or effect beyond the termination date of the Agreement shall
survive such termination date and shall be enforceable in the event of a
failure to perform or comply.
9.9 Assignment and Release: All or part of the rights, duties, obligations,
responsibilities, or benefits set forth in this Agreement shall not be assigned
by Contractor without the express written consent of the Town Council for
Town of Avon. Any written assignment shall expressly refer to this
Agreement, specify the particular rights, duties, obligations, responsibilities, or
benefits so assigned, and shall not be effective unless approved by resolution
or motion of the Town Council for the Town of Avon. No assignment shall
release the Applicant from performance of any duty, obligation, or
responsibility unless such release is clearly expressed in such written
document of assignment.
9.10 Paragraph Captions: The captions of the paragraphs are set forth only for the
convenience and reference of the Parties and are not intended in any way to
define, limit or describe the scope or intent of this Agreement.
9.11 Integration and Amendment: This Agreement represents the entire and
integrated agreement between the Town and the Contractor and supersedes
all prior negotiations, representations, or agreements, either written or oral.
Any amendments to this must be in writing and be signed by both the Town
and the Contractor.
9.12 Severability: Invalidation of any of the provisions of this Agreement or any
paragraph sentence, clause, phrase, or word herein or the application thereof
in any given circumstance shall not affect the validity of any other provision of
this Agreement.
9.13 Incorporation of Exhibits: Unless otherwise stated in this Agreement, exhibits,
applications, or documents referenced in this Agreement shall be
incorporated into this Agreement for all purposes. In the event of a conflict
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between any incorporated exhibit and this Agreement, the provisions of this
Agreement shall govern and control.
9.14 Employment of or Contracts with Illegal Aliens: Contractor shall not
knowingly employ or contract with an illegal alien to perform work under this
Agreement. Contractor shall not contract with a subcontractor that fails to
certify that the subcontractor does not knowingly employ or contract with any
illegal aliens. By entering into this Agreement, Contractor certifies as of the
date of this Agreement it does not knowingly employ or contract with an illegal
alien who will perform work under the public contract for services and that the
contractor will participate in the e- verify program or department program in
order to confirm the employment eligibility of all employees who are newly
hired for employment to perform work under the public contract for services.
The Contractor is prohibited from using either the e- verify program or the
department program procedures to undertake pre - employment screening of
job applicants while this Agreement is being performed. If the Contractor
obtains actual knowledge that a subcontractor performing work under this
Agreement knowingly employs or contracts with an illegal alien, the
Contractor shall be required to notify the subcontractor and the Town within
three (3) days that the Contractor has actual knowledge that a subcontractor
is employing or contracting with an illegal alien. The Contractor shall
terminate the subcontract if the subcontractor does not stop employing or
contracting with the illegal alien within three (3) days of receiving the notice
regarding Contractor's actual knowledge. The Contractor shall not terminate
the .subcontract if, during such three days, the subcontractor provides
information to establish that the subcontractor has not knowingly employed or
contracted with an illegal alien. The Contractor is required to comply with any
reasonable request made by the Department of Labor and Employment made
in the course of an investigation undertaken to determine compliance with this
provision and applicable state law. If the Contractor violates this provision,
the Town may terminate this Agreement, and the Contractor may be liable for
actual and /or consequential damages incurred by the Town, notwithstanding
any limitation on such damages provided by such Agreement.
9.15 Compliance with Article XXVIII of the Colorado Constitution: If and only to the
extent this Agreement constitutes a "sole source government contract" within
the meaning of Article XXVIII of the Colorado Constitution ( "Article XXVIII"),
then the provisions of Sections 15 through 17 of Article XXVIII ( "Amendment
54 ") are hereby incorporated into this Agreement and the parties hereto shall
comply with the provisions of Amendment 54. In such a case, for purposes of
this Agreement, the Contractor shall constitute a "contract holder" for
purposes of Amendment 54, as shall any additional persons, officers,
directors or trustees related to the Contractor who qualify as "contract
holders" pursuant to, the definition set forth in Article XXVIII. In addition, if and
1 -70 Regional Transportation Operations Facility
CDM Professional Services Agreement
Page 14 of 18
only to the extent this Agreement constitutes a "sole source government
contract," the Contractor hereby certifies that it is not ineligible to hold any
"sole source government contract" pursuant to Amendment 54 or any contract
thereunder, and the Contractor hereby agrees to notify the Town immediately
if, at any point during the term of this Agreement, the Contractor shall become
ineligible to hold any "sole source government contract" pursuant to
Amendment 54 or any contract thereunder. If any provision or provisions of
Amendment 54 are held to be unconstitutional or otherwise invalid by a court
of competent jurisdiction in a non - appealable action, have been repealed
retroactively or otherwise do not apply to this Agreement, such provision or
provisions shall no longer be incorporated into this Agreement and the Parties
shall have no obligations under such provision or provisions.
9.16 Non - Liability of Town for Indirect or Consequential Damages or Lost Profits:
Parties agree that the Town shall not be liable for indirect or consequential
damages, including lost profits that result from the Town's declaration that the
Contractor is in default of the Agreement, so long as the Town acts in good
faith.
9.17 Errors and Omissions. Correction
The Contractor shall conform to the industry- accepted standard of care on
quality and workmanship. The Contractor shall, without additional
compensation, correct or revise any of the Contractor's negligent errors or
omissions in the designs, drawings, specifications, reports, and /or other
services (e.g. all work products) immediately upon notification by the Town.
When negligent errors or omissions are discovered during construction, in
addition to correcting the work product at no additional cost to the Town, the
Contractor shall be liable for the difference between what "correct"
construction will cost and what it would have cost had the drawings,
specifications, et al, been correct, including tear -out, demolition, and re -work.
The Contractor will not be responsible for correcting errors or omissions
caused by Town staff in conjunction with the Contractor's services.
9.18 Notices: Unless otherwise specifically required by a provision of this
Agreement any notice required or permitted by this Agreement shall be in
writing and shall be deemed to have been sufficiently given for all purposes if
sent by certified mail or registered mail, postage and fees prepaid, addressed
to the Party to whom such notice is to be given at the address set forth below
or at such other address as has been previously furnished in writing, to the
other Party. Such notice shall be deemed to have been given when
deposited in the United States Mail properly addressed to the intended
recipient.
1 -70 Regional Transportation Operations Facility
CDM Professional Services Agreement
Page 15 of 18
If to the Town: If to the Contractor:
Town Manager
Robert Armstrong
Town of Avon
CDM, Inc.
P.O. Box 975
55517 th. Street, Suite 1100
Avon, Colorado 80620
Denver, CO 80202
With Copy to:
Eric J. Heil, Town Attorney
Heil Law and Planning, LLC
2696 South Colorado Blvd.,
Suite 550
Denver, CO 80222
10.0 SPECIAL PROVISIONS
The following attachments are included and made a part of this Agreement:
Exhibit A: Scope of Services
Exhibit B.1: Cost Budget Summary
Exhibit B.2: Billing Rates
Exhibit B.3: Exclusions and Additional Services
Exhibit C: Special Provisions
Exhibit D: Federal Aid Contract Provisions
1 -70 Regional Transportation Operations Facility
CDM Professional Services Agreement
Page 16 of 18
11.0 AUTHORITY
The individuals executing this Agreement represent that they are expressly authorized
to enter into this Agreement on behalf of Town of Avon and the Contractor and bind
their respective entities.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK - SIGNATURE PAGE
FOLLOWS
1 -70 Regional Transportation Operations Facility
CDM Professional Services Agreement
Page 17 of 18
THIS AGREEMENT is executed and made effective as provided above.
o�NOFA TOWN OF AVON, COLORADO
,� ..
:SEAL*: By.
Rich Carroll, Mayor
6LORAAO
ATTEST:
APPROVED AS TO FORM:
(Does Not Include Exhibits
X'4D
ric J. WOK, own Attorney
CONTRACTOR:
Camp Dresser and McKee
By:
Name:
Position:
1 -70 Regional Transportation Operations Facility
CDM Professional Services Agreement
Page 18 of 18
EXHIBIT A
SCOPE OF SERVICES
Introduction /Overview
CDM, along with CDM's team member subconsultants, will provide technical services to
meet the following scope of work.
The scope is described in relation to the previously prepared design development
documents which form the basis of the project plan. Reference documents are these:
A. Swift Gulch Project, Preliminary Design Report, CDM, November 8, 2008
B. Design Development Draft Drawings, CDM, June 15, 2009
C. Design Development Fir>al Specifications, CDM, June 15, 2009
D. Design Development Final Drawings, CDM, September 4, 2009
This scope is described in terms of what will be needed in subsequent portions of work
and could be authorized by contract amendment to complete the entire buildout of the
site located at 500 Swift Gulch Road in Avon Colorado. CDM understands not to
proceed without written notification from the Town on subsequent portions of the work.
Services to be provided by CDM:
T1. Project management
T2. Building architectural design.
T3. Civil engineering, to include previous survey verification
T4. Geotechnical engineering
T5. Structural engineering
T6. Electrical site and building power and instrumentation engineering design*
T7. Building mechanical engineering (HVAC and Plumbing)*
T8. Landscape architecture
T9. General construction techniques and methods
T10. Development of Opinions of Probable Construction Cost, to be updated all
major design milestones
T11. General construction sequencing and scheduling
T12. Alternative construction project delivery (including GC /CM, CM -At -Risk,
Design - Build)
T13. Bid assistance
T14. Engineering assistance during construction (including submittal & RFI review,
attendance of monthly progress meetings, assistance with some work
progress inspections)
T15. Start-up, Performance Testing, and Commissioning of new systems
T16. Assistance with review of construction project controls
1 -70 Regional Transportation Operations Facility
Exhibit A: Scope of Services
Page 1 of 3
The planned facilities for this site which require CDM services listed above are as
follows:
Construction Phase 1
• 5,000 -6,500 square foot drive through bus /vehicle automatic wash, fueling,
vacuum /detail, and money handling area
• 25,000- 33,000 square foot reinforced concrete foundation for future bus storage
and maintenance building (e.g., for 24 -30 transit buses with expansion capability to
40 buses in the future)
• Relocation / Decommissioning of the existing Fuel Island
• Installation of new outdoor Fuel Island and canopy
• Relocation / Decommissioning of the existing wash bay
• Relocation of existing portable trailers (offices) and shed storage buildings to north
tier of the site to be out of the way for construction on the middle and southern-
most tiers; relocation of town staff to fully functional re- located buildings
• Site improvements including buried utilities (storm water, power, natural gas, water,
sanitary sewer, telecommunications), retaining walls, lighting, landscaping,
security, grading and pavement.
• Phase 1 construction has a total project budget of $9.4 to $10AM and is partially
funded with a Federal Transit Authority ("FTA ") "State of Good Repair" Grant
(5309). All documents must be prepared to meet both FTA 5309 requirements and
associated CDOT requirements.
Construction Phase 2
• 25,000- 33,000 square foot drive through bus storage and maintenance building
(e.g., for 24 -30 transit buses with expansion capability to 40 buses in the future)
• Site improvements including all buried utilities (e.g., storm water, power, natural
gas, water, sanitary sewer, and telecommunications), retaining walls, lighting,
landscaping, security, grading, and pavement.
• Integrated building on -site photovoltaic power and solar heating systems
• Phase 2 construction has a total project budget of $5,000,000.00 and it is expected
that it will be partially funded with a combination of FTA and CDOT grant funds. All
documents must be prepared to meet FTA and CDOT requirements.
■
1 -70 Regional Transportation Operations Facility
Exhibit A: Scope of Services
Page 2 of 3
More information about the intended facilities can be found in the Reference Documents
A through D.
CDM understands that the Town desires to initiate work only on a portion of the planned
facilities. Under this Agreement, work on Tasks 1 -5, 7, and 9 -10 listed in Exhibit B.1 is
authorized to commence. A contract amendment will be required to authorize work on
tasks 6 and 8. Item Al is an add alternate that can be authorized by the Town Manager
if the funding to pursue certifications becomes available. Town Manager authorization
is contingent upon adequate project budgets and appropriations.
The Town reserves the right to amend the Agreement in the future for subsequent
phases of this site build -out plan.
1 -70 Regional Transportation Operations Facility
Exhibit A: Scope of Services
Page 3 of 3
EXHIBIT B.1
COST BUDGET SUMMARY
Tasks
Description
Budget
1
Complete Design to a 65% level for construction phases 1 & 2 listed
$ 385,247
herein. Site development design will be required for phases 3 & 4 in
order to accommodate phase 1 & 2 construction. The design and
specifications of all major project elements and a detailed, line item cost
estimate shall be included as part of the 65% submittal. T1 -T -12, T17
2
Complete Design to a 100% level (construction bid set) for construction
$ 260,428
phase 1 listed above. Site development design will be required for
future phases in order to accommodate phase 1 construction. (T1 -T -12,
T17
3
Complete design to 100% level (construction bid set) for construction
$ 252,108
phase 2 listed above. Site development design will be required on future
phases to accommodate phase 2 construction. T1 -T -12, T17
4
Assist with development of RFP, procurement activities, and contract
$ 6,665
documents so Town can select and contract with responsive and
responsible constructor. T1 & T13
5
Assist with bidding for phase 1 construction packages T1 & T13
$ 32,283
6
1 Assist with bidding for phase 2 construction package T1 & -T13
not included
7
Provide engineering assistance during construction phase 1 construction
$ 260,653
T1, T14 -T16
8
Provide engineering assistance during construction for phase 2 (T1,
(not included)
T14 -T16
10
Phase 1 Value engineering includes pre -bid value engineering and post-
$ 38,262
bid value engineering to adjust project to meet budget requirements (T1-
T12, T17
10
Phase 2 value engineering includes pre -bid value engineering and post-
$ 38,262
bid value engineering to adjust project to meet budget requirements (T1-
T12, T17
Base Professional Services Compensation
$ 1,273,908
Al
Add Alternate 1: Document and File LEED or Built Green achievments
$ 19,204
with appropriate certifying agency (if additional funding becomes
available to ursue certifications).
Total with Add Alternate 1
$ 1,293,112
All tasks will be billed to the Town of Avon at cost plus a pro -rated portion of the total
fixed profit ($127,391 for the Base Professional Services and /or $1,920 for item Al),
which is included in the line items above. Invoices will pro -rate the fee over the course
of the work based on progress to date using an invoice format and profit calculation
method that is acceptable to both the Town and CDM. In the event that scope is
increased, budgets and fixed profit will be increased accordingly by amendment. The
numbers indicated are round figures based on detailed estimates for the work to be
provided. The project budget will be managed at the task and project level.
1 -70 Regional Transportation Operations Facility
Exhibit B -1: Cost Budget Summary
Page 1 of 2
CDM labor costs will be invoiced based on direct or raw salary costs for professionals
working on the project times the annual audited breakeven multiplier of 2.73. Other
direct costs and subconsultant direct costs are not subject to a breakeven multiplier or
markup. The breakeven multiplier is subject to annual adjustment pending submittal
and approval of audited statements supporting such adjustments. The project duration
is anticipated to be 34 months from February 2011 through December 2014 such that
costs will be billed monthly as incurred.
EXHIBIT B.2
CDM ESTIMATED RAW LABOR RATES*
Grade 9 -10 Principal /Officer
$
80
Grade 8 Technical Specialist
$
70
Grade 7 Senior Engineer /Architect
$
60
Grade 6 PM /Project Engineer /Architect
$
50
Grade 5 Staff Engineer II /Architect II /Senior Designer
$
45
Grade 4 Staff Engineer /Architect
$
35
Grade 3 Engineer /Scientist/Designer
$
30
Grade 2 Contract Admin. /Asst..Engineer /Drafter
$'
25
Grade 1 Admin. /Clerical
$
20
The above raw labor rates are estimates. Actual labor rates of the personnel working on
the project after the NTP will be reflected in the monthly invoices, per the methodology
in 6.1.
* Labor Rates are subject to annual increase as appropriate to remain market -
competitive.
1 -70 Regional Transportation Operations Facility
Exhibit B -1: Cost Budget Summary
Page 2 of 2
EXHIBIT B.3
EXCLUSIONS AND ADDITIONAL SERVICES
Following are services that are not included within this Scope of Services. CDM is
available to provide these services in the event that they become needed by written
amendment or other written authorization:
• Specialty landscape /wetland /stream design
• Tree protection or arborist services of any kind
• Geotechnical exploration
• Offsite haul plans /disposal plans of any kind
• Traffic control, studies or MOT plans of any kind
• Meetings other those specified above
■ CLOMR, LOMR, flood studies or Flood Line determination
■ Environmental, archeological or wetland studies other than specified above
■ Coordination for environmental permits
■ Utility locates
■ Revisions, submissions or resubmissions based on comments or review other than
specified above
• Property dispute resolutions of any kind
• Application for grants /funding
• Deed research other than specified above
• ALTA/ACSM surveys, title surveys or legal descriptions of any kind
• Legal descriptions or easement preparation
• Construction layout/staking of any kind
• Potholing or blind junction box locations
• Property line staking
• Surveyor's Report
• Settlement of disputes of claims due to contractor default or insolvency or
discontinuation of work.
• Wetland delineation or location
• Offsite utility location
• Area wide utility or stormwater studies /evaluations
• Snow melt system design
• Photovoltaic system design
• LEED Design, Application and Design
• Investigation, testing and environmental remediation related to a contaminated site
or buildings of hazardous materials
1 -70 Regional Transportation Operations Facility
Exhibit 13.3: Exclusions and Additional Services
Page 1 of 1
EXHIBIT C
SPECIAL PROVISIONS
In the event that any provision, term or standard in this Exhibit C is inconsistent with
any provision of the main body of the Professional Services Agreement, the provision
terms or standards in this Exhibit C shall govern and control.
C.I. NO OBLIGATION BY FEDERAL GOVERNMENT
(1) The Town and Contractor acknowledge and agree that, notwithstanding any
concurrence by the Federal Government in or approval of the solicitation or
award of the underlying contract, absent the express written consent by the
Federal Government, the Federal Government is not a party to this Contract and
shall not be subject to any obligations or liabilities to the Purchaser, Contractor,
or any other party (whether or not a party to that contract) pertaining to any
matter resulting from the underlying contract.
(2) The Contractor agrees to include the above clause in each subcontract financed
in whole or in part with Federal assistance provided by FTA. It is further agreed
that the clause shall not be modified, except to identify the subcontractor who will
be subject to its provisions.
C.2. AUDIT AND INSPECTION OF RECORDS
(1) Pursuant to 49 CFR 18.39(i)(1 1), the Contractor shall permit the authorized
representatives of the Town, the FTA Administrator or, U.S. Comptroller General
and the State of Colorado to inspect and audit all its books, data, accounts,
documents, papers, records of the Contractor relating to this Contract and its
performance hereunder until the expiration of three (3) years after final payment
under this Contract, except in the event of litigation or settlement of claims arising
from the performance of this Contract, in which case Contractor agrees to
maintain same until the Town, the FTA Administrator, the Comptroller General,
the State of Colorado, or any of their duly authorized representatives, have
disposed of all such litigation, appeals, claims or exceptions related thereto.
(2) The Contractor agrees to permit any of the foregoing parties to reproduce by any
means whatsoever or to copy excerpts and transcriptions as reasonably needed.
The Contractor further agrees to include in all its subcontracts hereunder a
1 -70 Regional Transportation Operations Facility
Exhibit C: Special Provisions
Adopted: December 14, 2010
Page 2 of 23
provision to the effect that the subcontractor agrees that the Town and the State
of Colorado or any of their duly authorized representatives shall, until the
expiration of three years after final payment under the subcontractor, have
access to and the right to examine any pertinent books, documents, papers, and
records of such subcontractor involving transactions related to this Contract or
the work performed in connection herewith. The term "subcontract" as used in
this clause excludes (1) purchase orders not exceeding $5,000.00 and (2)
subcontracts or purchase orders for public utility services at rates established for
uniform applicability to this general public.
C.3. PROGRAM FRAUD & FALSE OR FRAUDLENT STATEMENTS OR RELATED
. ACTS
(1) The Contractor acknowledges that the provisions of the Program Fraud Civil
Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT
regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its
actions pertaining to the work under this Contract. Upon execution of this
Contract, the Contractor certifies or affirms the truthfulness and accuracy of any
statement it has made, it makes, it may make, or causes to be made, pertaining
to the underlying contract or the FTA assisted project for which this Contract
work is being performed. In addition to other penalties that may be applicable,
the Contractor further acknowledges that if it makes, or causes to be made, a
false, fictitious, or fraudulent claim, statement, submission, or certification, the
Federal Government reserves the right to impose the penalties of the Program
Fraud Civil Remedies Act of 1986 on the Contractor to the extent the United
States Federal Government deems appropriate.
(2) The Contractor also acknowledges that if it makes, or causes to be made, a
false, fictitious, or fraudulent claim, statement, submission, or certification to the
Federal Government under a contract connected with a project that is financed in
whole or in part with Federal assistance originally awarded by FTA under the
Town of 49 U.S.C. § 5311, the government reserves the right to impose the
penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5311(n)(1) on the Contractor, to
the extent the Federal Government deems appropriate.
(3) The Contractor agrees to include the above two clauses in each subcontract
financed in whole or in part with Federal assistance provided by FTA. It is further
agreed that the clauses shall not be modified, except to identify the subcontractor
who will be subject to the provisions
CA. FEDERAL CHANGES
1 -70 Regional Transportation Operations Facility
Exhibit C: Special Provisions
Adopted: December 14, 2010
Page 3 of 23
Contractor shall at all times comply with all applicable FTA regulations, policies,
procedures and directives, including without limitation those listed directly or by
reference in the bid documentation or in any grant or funding documentation between
the Town and FTA, as they may be amended or promulgated from time to time during
the term of this Contract. Contractor's failure to so comply shall constitute a material
breach of this Contract.
C.5. CIVIL RIGHTS REQUIREMENTS
The following requirements apply to the underlying contract:
(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as
amended, 42 U.S.C. § 2000d, Section 303 of the Age Discrimination Act of 1975,
as amended, 42 U.S.C. § 6102, Section 202 of the Americans with Disabilities
Act of 1990, 42 U.S.C. § 12132, and Federal Transit Law at 49 U.S.C. § 5332,
the Contractor agrees that it will not discriminate against any employee or
applicant for employment because of.race, color, creed, national origin, sex, age,
or disability. In addition, the Contractor agrees to comply with applicable Federal
implementing regulations and other implementing requirements FTA may issue.
(2) Equal Employment Opportunity - The following equal employment opportunity
requirements apply to the underlying contract:
(a) Race, Color, Creed, National Origin, Sex, Age - In accordance with Title VII
of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit
laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all applicable
equal employment opportunity requirements of U.S. Department of Labor
(U.S. DOL) regulations, "Office .of Federal Contract Compliance Programs,
Equal Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et
seq., (which implement Executive Order No. 11246, "Equal Employment
Opportunity," as amended by Executive Order No. 11375, "Amending
Executive Order 11246 Relating to Equal Employment Opportunity," 42
U.S.C. § 2000e note), and with any applicable Federal statutes, executive
orders, regulations, and Federal policies that may in the future activities
undertaken in the course of the work under this Contract. The Contractor
agrees to take affirmative action to ensure that applicants are employed, and
that employees are treated during employment, without regard to their race,
color, creed, national origin, sex, or age. Such action shall include, but not be
limited to, the following: employment, upgrading, demotion or transfer,
recruitment or recruitment advertising, layoff or termination; rates of pay or
other forms of compensation; and selection for training, including
apprenticeship. In addition, the Contractor agrees to comply with any
implementing requirements FTA may issue.
1 -70 Regional Transportation Operations Facility
Exhibit C: Special Provisions
Adopted: December 14, 2010
Page 4 of 23
(b) Age - In accordance with Section 4 of the Age Discrimination in Employment
Act of 1967, as amended, .29 U.S.C. § § 623 and Federal transit law at 49
U.S.C. § 5332, the Contractor agrees to refrain from discrimination against
present and prospective employees for reason of age. In addition, the
Contractor agrees to comply with any implementing requirements FTA may
issue.
(c) Disabilities - In accordance with Section 102 of the Americans with
Disabilities Act, as amended, 42 U.S.C. § 12112, the Contractor agrees that it
will comply with the requirements of U.S. Equal Employment Opportunity
Commission, "Regulations to Implement the Equal Employment Provisions of
the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to
employment of persons with disabilities. In addition, the Contractor agrees to
comply with any implementing requirements FTA may issue.
(3) Compliance with Regulations: The contractor shall comply with the
Regulations relative to nondiscrimination in federally assisted programs of
the Department of Transportation (hereinafter, "DOT ") Title 49, Code of
Federal Regulations, Part 21, as they may be amended from time to time,
(hereinafter referred to as the Regulations), which are herein incorporated
by reference and made a part of this contract.
(4) Nondiscrimination: The contractor, with regard to the work performed by it
during the contract, shall not discriminate on the grounds of race, color, or
national origin in the selection and retention of subcontractors, including
procurements of materials and leases of equipment. The contractor shall
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 B of the Regulations.
(5) Solicitations for Subcontracts, Including Procurements of Materials and
Equipment: In all solicitations either by competitive bidding or negotiation
made by the contractor for work to be performed under a subcontract,
including procurements of materials or leases of equipment, each potential
subcontractor or supplier shall be notified by the contractor of the
contractor's obligations under this contract and the Regulations relative to
nondiscrimination on the grounds of race, color, or national origin.
(6) Information and Reports: The contractor shall provide all information and
reports required by the Regulations or directives issued pursuant thereto,
and shall permit access to its books, records, accounts, other sources of
information, and its facilities as may be determined by AT or the FEDERAL
TRANSIT ADMINISTRATION to be pertinent to ascertain compliance with
such Regulations, orders and instructions. Where any information required
1 -70 Regional Transportation Operations Facility
Exhibit C: Special Provisions
Adopted: December 14, 2010
Page 5 of 23
of a contractor is in the exclusive possession of another who fails or
refuses to furnish this information the contractor shall so certify to AT, or
the FEDERAL TRANSIT ADMINISTRATION as appropriate, and shall set
forth what efforts it has made to obtain the information.
(7) Sanctions for Noncompliance: In the event of the contractor's
noncompliance with nondiscrimination provision of this contract, AT shall
impose contract sanctions as it or the FEDERAL TRANSIT
ADMINSTRATION 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.
(8) Incorporation of Provisions: The contractor shall include the
provisions of paragraphs (1) through (6) in every subcontract,
including procurements of materials and leases of equipment,
unless exempt by the Regulations, or directives issued pursuant
thereto. The contractor shall take such action with respect to any
subcontract or procurement as AT or the FEDERAL TRANSIT
ADMINISTRATION may direct as a means of enforcing such
provisions including sanctions for noncompliance: Provided,
however, that in the event a contractor becomes involved in, or is
threatened with, litigation with a subcontractor or supplier as a
result of such direction, the contractor may request AT to enter into
such litigation to protect the interests of AT, and, in addition, the
contractor may request the United States to enter into such
litigation to protect the interests of the United States.
C.6. TERMINATION OF CONTRACT
(1) Termination for Convenience. The Town may terminate this Contract, in whole
or in part, at any time by written notice to the Contractor when it is in the
government's best interest. The Contractor shall be paid its costs, including
contract close -out costs, and profit on work performed up to the time of
termination. The Contractor shall promptly submit its termination claim to the
Town to be paid the Contractor. If the Contractor has any property in its
possession belonging to the Town, the Contractor will account for the same, and
dispose of it in the manner the Town directs.
1 -70 Regional Transportation Operations Facility
Exhibit C: Special Provisions
Adopted: December 14, 2010
Page 6 of 23
(2) Termination for Default. If the Contractor does not perform in the manner called
for in the Contract, or if the Contractor fails to comply with any other provisions of
the Contract, the Town may terminate this Contract for default. Termination shall
be effected by serving a notice of termination on the Contractor setting forth the
manner in which the Contractor is in default. The Contractor will only be paid the
contract price for supplies delivered and accepted, or services performed in
accordance with the manner of performance set forth in the Contract.
(3) Possession and Delivery of Goods. If this Contract is terminated while the
Contractor has possession of the Town goods or items to be procured under this
Contract, the Contractor shall deliver such goods or items to Town, upon
direction of to the Town or its agent. The Contractor and the Town shall agree
on payment for the preservation and protection of goods. Failure to agree on an
amount will be resolved under the Dispute Clause.
(4) Opportunity to Cure. The Town in its sole discretion may, in the case of a
termination for breach or default, allow the Contractor five (5) days in which to
cure the defect. In such case, the notice of termination will state the time period
in which cure is permitted and other appropriate conditions.
(5) Termination for Cause. If Contractor fails to remedy to the Town's satisfaction
the breach or default of any of the terms, covenants, or conditions of this
Contract within five (5) after receipt by Contractor of written notice from the Town
setting forth the nature of said breach or default, the Town shall have the right to
terminate the Contract without any further obligation to Contractor. Any such
termination for default shall not in any way operate to preclude the Town from
also pursuing all available remedies against Contractor and any of its sureties for
said breach or default.
(6) Waiver of Remedies for Any Breach. In the event that the Town elects to waive
its remedies for any breach by Contractor of any covenant, term or condition of
this Contract, such waiver by the Town shall not limit the Town's remedies for
any succeeding breach of that or of any other term, covenant, or condition of this
Contract.
(7) Contractor's Right to Proceed. The Contractor's right to proceed shall not be
terminated nor the Contractor charged with damages under this clause if:
(a) the delay in completing the work arises from unforeseeable causes beyond
the control and without the fault or negligence of the Contractor. Examples of
such causes include: acts of God, acts of the Recipient, acts of another
contractor in the performance of a contract with the Recipient, epidemics,
quarantine restrictions, strikes, freight embargoes; and
1 -70 Regional Transportation Operations Facility
Exhibit C: Special Provisions
Adopted: December 14, 2010
Page 7 of 23
(b) the Contractor, within five (5) days from the beginning of any delay, notifies
the Town in writing of the causes of delay. If in the judgment of the Town, the
delay is excusable, the time for completing the work shall be extended. The
judgment of the Town shall be final and conclusive on the parties, but subject
to appeal under the Disputes Clauses.
(8) Contractor Determined Not in Default. If, after termination of the Contractor's
right to proceed, it is determined that the Contractor was not in default, or that the
delay was excusable, the rights and obligations of the parties will be the same as
if the termination had been issued for the convenience of the Town.
C.7. DISADVANTAGED BUSINESS ENTERPRISE PARTICIPATION
In accordance with FTA and CDOT requirements, The Town has created a DBE
program that meets the requirements of 49 CFR Part 26. Contractor agrees for the term
of this Contract to comply with said requirements, including, but not limited to
establishing annual overall goals and submit said goals for FTA approval. Without
limiting the forgoing, Contractor and the Town agree as follows:
(1) This Contract is subject to the requirements of Title 49, Code of Federal
Regulations, Part 26, Participation by Disadvantaged Business Enterprises in
Department of Transportation Financial Assistance Programs. The national goal
for participation of Disadvantaged Business Enterprises (DBE) is 10 %. The
Town's overall goal for DBE participation is 0.03% but is subject to approval by
FTA and CDOT.
(2) The Contractor 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
this DOT - assisted contract. 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 Town deems
appropriate. Each subcontract the Contractor signs with a subcontractor must
include the assurance in this paragraph (see 49 CFR 26.13(b)).
(3) The Contractor is required to pay its subcontractors performing work related to
this Contract for satisfactory performance of that work no later than 30 days after
the Contractor's receipt of payment for that work from the Town. In addition, the
Contractor is required to return any retainage payments to those subcontractors
within 30 days after the subcontractor's work related to this Contract is
satisfactorily completed.
1 -70 Regional Transportation Operations Facility
Exhibit C: Special Provisions
Adopted: December 14, 2010
Page 6 of 23
(4) The Contractor must promptly notify the Town, whenever a DBE subcontractor
performing work related to this Contract is terminated or fails to complete its
work, and must make good faith efforts to engage another DBE subcontractor to
perform at least the same amount of work. The Contractor may not terminate any
DBE subcontractor and perform that work through its own forces or those of an
affiliate without prior written consent of the Town.
C.8. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS
The preceding provisions include, in part, certain Standard Terms and Conditions
required by the Federal Department of Transportation ( "DOT "), whether or not expressly
set forth in the preceding contract provisions. All contractual provisions required by
DOT, as set forth in FTA Circular 4220.1 E, are hereby incorporated by reference.
Anything to the contrary herein notwithstanding, all FTA mandated terms shall be
deemed to control in the event of a conflict with other provisions contained in this
Contract. The Contractor shall not perform any act, fail to perform any act, or refuse to
comply with any the Town requests which would cause the Town to be in violation of the
FTA terms and conditions. In addition, Contractor shall at all times comply with all
applicable FTA regulations, policies, procedures and directives, including without
limitation those listed directly or by reference in the bid documentation or in any grant or
funding documentation between the Town and FTA, as they may be amended or
promulgated from time to time during the term of this Contract. Contractor's failure to so
comply shall constitute a material breach of this Contract.
C.9. DEBARRED BIDDERS
By signing of the Contract the Contractor hereby attests that neither the Contractor,
nor any officer or controlling interest holder of Contractor, is currently, or has been
previously, on any debarred bidders list maintained by the United States government.
C.10. Contract Work Hours and Safety Standards
(1) Overtime requirements - No contractor or subcontractor contracting for any part
of the contract work which may require or involve the employment of laborers or
mechanics shall require or permit any such laborer or mechanic in any workweek
in which he or she is employed on such work to work in excess of forty hours in
such workweek unless such laborer or mechanic receives compensation at a rate
not less than one and one -half times the basic rate of pay for all hours worked in
excess of forty hours in such workweek.
1 -70 Regional Transportation Operations Facility
Exhibit C: Special Provisions
Adopted: December 14, 2010
Page 9 of 23
(2) Violation; liability for unpaid wages; liquidated damages - In the event of any
violation of the clause set forth in paragraph (1) of this section the contractor and
any subcontractor responsible therefore shall be liable for the unpaid wages. In
addition, such contractor and subcontractor shall be liable to the United States
for liquidated damages. Such liquidated damages shall be computed with respect
to each individual laborer or mechanic, including watchmen and guards,
employed in violation of the clause set forth in paragraph (1) of this section, in the
sum of $10 for each calendar day on which such individual was required or
permitted to work in excess of the standard workweek of forty hours without
payment of the overtime wages required by the clause set forth in paragraph (1)
of this section. I
(3) Withholding for unpaid wages and liquidated damages - The Town shall
upon its own action or upon written request of an authorized representative of the
Department of Labor withhold or cause to be withheld, from any moneys payable
on account of work performed by the contractor or subcontractor under any such
contract or any other Federal contract with the same prime contractor, or any
other federally- assisted contract subject to the Contract Work Hours and Safety
Standards Act, which is held by the same prime contractor, such sums as may
be determined to be necessary to satisfy any liabilities of such contractor or
subcontractor for unpaid wages and liquidated damages as provided in the
clause set forth in paragraph (2) of this section.
(4) Subcontracts - The contractor or subcontractor shall insert in any subcontracts
the clauses set forth in paragraphs (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.
C.11. ENERGY CONSERVATION
The contractor agrees to comply with mandatory standards and policies relating to
energy efficiency that are contained in the state energy conservation plan issued in
compliance with the Energy Policy and Conservation Act. (see 42 CFR 77)
C.12. WORKERS' COMPENSATION ACT
The Contractor shall comply with the State Law known as the Colorado Workers'
Compensation Act and shall pay into the State insurance fund the necessary premiums
required by the Act or elect and maintain status as a Qualified Self Insured as allowed
by the Act to cover all employees furnishing said services to the Town, and under the
1 -70 Regional Transportation Operations Facility
Exhibit C: special Provisions
Adopted: December 14, 2010
Page 10 of 23
control of the Contractor, and shall relieve the Town from any costs due to accidents
and other liabilities mentioned in said Act.
C.13. FLY AMERICA (WHERE APPLICABLE)
The Contractor agrees to comply with 49 U.S.C. 40118 (the "Fly America" Act) in
accordance with the General Services Administration's regulations at 41 CFR Part 301-
10, which provide that recipients and sub - recipients of Federal funds and their
contractors are required to use U.S. Flag air carriers for U.S Government - financed
international air travel and transportation of their personal effects or property, to the
extent such service is available, unless travel by foreign air carrier is a matter of
necessity, as defined by the Fly America Act. The Contractor shall submit, if a foreign
air carrier was used, an appropriate certification or memorandum adequately explaining
why service by a U.S. flag air carrier was not available or why it was necessary to use a
foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly
America requirements. The Contractor agrees to include the requirements of this
section in all subcontracts that may involve international air transportation.
C.14. CARGO PREFERENCE (WHERE APPLICABLE)
The Contractor agrees: (1) to use privately owned_ United States -Flag commercial
vessels to ship at least 50 percent of the gross tonnage (computed separately for dry
bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment,
material, or commodities pursuant to the underlying contract to the extent such vessels
are available at fair and reasonable rates for United States -Flag commercial vessels; (2)
to furnish within 20 working days following the date of loading for shipments originating
within the United States or within 30 working days following the date of leading for
shipments originating outside the United States, a legible copy of a rated, "on- board"
commercial ocean bill -of- lading in English for each. shipment of cargo described in the
preceding paragraph to the Division of National Cargo, Office of Market Development,
Maritime Administration, Washington, DC 20590 and to the FTA recipient (through the
contractor in the case of a subcontractor's bill -of- lading.); and (3) to include these
requirements in all subcontracts issued pursuant to this contract when the subcontract
may involve the transport of equipment, material, or commodities by ocean vessel.
1 -70 Regional Transportation Operations Facility
Exhibit C: Special Provisions
Adopted: December 14, 2010
Page 11 of 23
FORM CA
TO BE FILLED OUT ONLY BY GENERAL BIDDERS THAT ARE DISADVANTAGED BUSINESS
ENTERPRISE OR SUBCONTRACTORS WHO ARE DBE.
AFFIDAVIT OF COMPLIANCE DISADVANTAGED BUSINESS ENTERPRISE
State of:
The County of:
}
} ss
}
I hereby declare and affirm, that I am the
(STATE TITLE)
and duly authorized representative of
(STATE NAME OF FIRM)
whose address is
I hereby declare and affirm that I am a Disadvantaged Business Enterprise (DBE) as defined by the
specifications and that I will provide information requested by the Town of Avon to document this fact.
I do solemnly declare and affirm, under the penalties of perjury, that the contents of the aforementioned
document are true and correct and that I am authorized, on behalf of the above firm, to execute this
affidavit.
DATE
SIGNATURE OF AFFIANT
On this day of 20_, before me the above named officer appeared, known
to me to be and the person described in the foregoing Affidavit
and that he /she did execute the same in the capacity therein stated and for the purpose stated.
IN WITNESS THEREOF, I hereunto set.my hand and official seal,
NOTARY PUBLIC
(SEAL)
COMMISSION EXPIRES
The following must be executed by the DBE who is being used as a sub - contractor.
LETTER OF INTENT TO PERFORM AS A SUBCONTRACTOR
The undersigned intends to perform work in connection with the specifications for the Town as (please
check one):
Individual:_; partnership:_; corporation:_; limited liability company:_; joint venture:_
1 -70 Regional Transportation Operations Facility
Exhibit C: Special Provisions
Adopted: December 14, 2010
Page 12 of 23
FORM C.2
The disadvantaged status of the undersigned is confirmed. on the attached Affidavit of
Disadvantaged Business Enterprise. The undersigned is prepared to perform the following
described work in connection with the above project (specify in detail particular work items or
parts thereof to be performed):
at the following cost(s) $
The following commencement and completion date is projected.
PROJECTED WORK ITEM(S)
PROJECTED COMMENCEMENT DATE
PROJECTED COMPLETION DATE
% of the dollar value of the subcontract will be sublet and /or awarded to non - disadvantaged
Contractors and /or non - disadvantaged suppliers. The under signed will enter into a formal agreement for
the work with you conditioned upon your execution of a contract with the Town of Avon. No Agreement
has been entered into between the above -named bidder and DBE subcontractors wherein the below -
named DBE subcontractor has promised not to provide subcontracting quotations to other bidders and
proposers.
DBE Business:
Name:
Address:
City /State /Zip:
Name of Officer for DBE firm
Signature of Authorized Official
Title of Officer for DBE firm
1 -70 Regional Transportation Operations Facility
Exhibit C: Special Provisions
Adopted: December 14, 2010
Page 13 of 23
Date:
Phone Number:
Fax Number:
Email Address:
FORM C.3
CERTIFICATE OF DBE ASSURANCE
In connection with the contract to be approved by the Town:
I hereby certify that I am the
and duly authorized representative of
FIRM) whose address is
. (TITLE)
(NAME OF
I do hereby assure the Town that I have read and am familiar with the requirements for disadvantaged
business participation by companies contracting with the Town and that it is the intention of the
undersigned to meet such DBE goals.
I understand that the Town has established a goal of 4.75% Disadvantaged Business Enterprise
participating on this contract. I further understand that these goal percentages are based on the total
dollar value of the awarded contracts.
I hereby further assure the Town that the undersigned will cause to be completed and submit with this
contract the following documents: DBE Affidavit and the Letter of Intent to Perform as a Sub - Contractor.
Prior to the execution of the contract, I understand that this company may not remain in participation
unless the required documents are submitted or this company has met the DBE requirements as defined
in Section C.7 of this bid specification.
NAME OF PRIME CONTRACTOR
SIGNED BY
TITLE
1 -70 Regional Transportation Operations Facility
Exhibit C: Special Provisions
Adopted: December 14, 2010
Page 14 of 23
FORM C.4
SCHEDULE D
CERTIFICATION OF CONTRACTOR REGARDING UNAVAILABILITY OF A DISADVANTAGED
BUSINESS ENTERPRISE
NAME OF PROJECT
PROJECT NUMBER
NOTE: The bidder must prepare one of these forms for each DBE contract made where the DBE was
found not to be ready, willing, or able to perform the work solicited. If the bidder was unable to obtain the
DBE signature, the form must be completed to the best of the bidder's ability, indicating the reason for the
absence of DBE signature.
I,
(PRIME OR GENERAL BIDDER) (TITLE)
of certify that on
(NAME OF FIRM) (DATE)
I contracted the following DBE Contractor to obtain a bid for work items to be performed on the above -
captioned contract.
FORM OF BID SOUGHT, I.E., DBE CONTRACTOR WORK ITEMS SOUGHT UNIT PRICE, MATERIALS
AND LABOR, LABOR ONLY, ETC.
To the best of my knowledge and belief, said DBE Contractor was unavailable (exclusive of unavailability
due to lack of agreement on price) for work on this project, or unable to prepare a bid, for the following
reason(s):
SIGNATURE:
on the above - identified work on
DATE:
was offered an opportunity to bid
by
(DATE) (SOURCE)
The statement asserted above by the company, which contacted me, is a true and accurate account of
why I did not submit a bid on the project.
SIGNATURE OF DBE:
1 -70 Regional Transportation Operations Facility
Exhibit C: Special Provisions
Adopted: December 14, 2010
Page 15 of M
DATE:
FORM C.5
SCHEDULE D -1 GRANT OF RELIEF FOR BIDDERS
If a bidder finds it impossible fully to meet the DBE goal of this contract, the bidder must include Schedule -
D Certification of Contractor Regarding Unavailability of DBE, accompanied by Documentation showing
that all reasonable good faith efforts were made toward fulfilling the goal. The request and description of
good faith efforts are required in affidavit format. Suggested reasonable efforts should include, but not be
limited to:
(1) Attendance at the pre -bid conference if scheduled.
(2) The Contractor's general affirmative action policies regarding the utilization of DBEs.
(3) The advertisement in trade association newsletters and DBE - oriented and general circulation media,
for specific sub -bids that would be at least equal to the percentage contract goal for DBE utilization.
(4) Notification of DBE Contractor Assistance agencies in writing before bids is due. (the Town will
provide list upon request.)
(5) Direction negotiation with DBE for specific sub -bids; the actions taken must be reported in such a
fashion as to include all the following items:
(a) A detailed statement of the efforts to negotiate with DBEs including name, address, and
telephone numbers of DBEs who were contacted; a description of the information provided to
DBEs regarding the plans and specifications for portions of the work to be performed; a detailed
statement of the reasons why additional prospective agreements with DBEs, if needed to meet
the stated goal, were not reached.
(b) A detailed statement of the efforts made to selected portions of the work proposed to be
performed by DBEs in order to increase the likelihood of achieving the stated goal.
(c) As to each DBE contracted but which the bidder considers to be not qualified, a detailed
statement of the reasons for the bidder conclusion.
(d) As to each DBE contacted which the bidder considers to be unavailable, an Unavailability
Certificate (Schedule D) signed by the DBE; or a statement from the bidder that the DBE refused
to give such written certification after reasonable request and a statement from the bidder of the
reasons for the bidder's conclusion.
(6) Efforts made by the Contractor to expand its search for DBEs beyond usual geographical boundaries
to a reasonable area.
(7) If the Contractor is a distributor or manufacturer where it can be shown that the opportunity for DBE
participation does not exist in work under this contract efforts must include an exhaustive research into
the DBEs potential in the roles of sub - supplier, transport, engineering, distribution, or any other roles
contributing to production and delivery as specified in the contract.
Information must be submitted, in affidavit form, stating the reasons, based on research, why DBE's
participation will not be practically impossible to the extent of this contract.
1 -70 Regional Transportation Operations Facility
Exhibit C: Special Provisions
Adopted: December 14, 2010
Page 16 of 23
FORM C.6
DECLINE PROPOSAL/BID FORM
TOWN OF AVON GOVERNMENT (d.b.a. The TOWN)
Please complete this form if you do not wish to respond to this solicitation:
Proposal /Bid #
Proposal /Bid Title
Proposer /Bidder Company Name
Address
Telephone Number
Contact Person
Reason for not submitting a Proposal /Bid in response to this solicitation.
Thank you for your assistance. Please return this form to:
Procurement Officer
1 -70 Regional Transportation Operations Facility
Exhibit C: Special Provisions
Adopted: December 14, 2010
Page 17 of 23
FORM C.7
AFFIDAVIT CONCERNING CONFLICTS OF INTEREST
AND NONCOMPETITIVE PRACTICES
TOWN OF AVON GOVERNMENT (d.b.a. THE TOWN)
STATE OF
THE COUNTY OF
The undersigned, being first duly sworn, on oath states on behalf of the Contractor:
A. Conflict of Interest
That the Contractor, by entering into this Contract with the Town to perform or provide work, services, or
materials to the Town, has thereby covenanted, and by this affidavit does again covenant and assure that
it has no direct or indirect pecuniary or proprietary interest and that it shall not acquire any such interest
which conflicts in any manner or degree with the services required to be performed under this Contract
and that it shall not employ any person or agent having any such interest. In the event that the Contractor
or its agents, employees, or representatives hereafter acquire such a conflict of interest, it shall
immediately disclose such interest to the Town and take action immediately to eliminate the conflict or to
withdraw from this Contract, as the Town may require.
B. Contingent Fees and Gratuities
That the Contractor, by entering into this Contract with the Town to perform or to provide services or
materials for the Town, has thereby covenanted and by this affidavit does again covenant and assure:
1. That no person or selling agency except bona fide employees or designated agents or representatives
of the Contractor have been employee or retained to solicit or secure this Contract with an agreement or
understanding that a commission, percentage, brokerage, or contingent fee would be paid; and
2. That no gratuities, in the form of entertainment, gifts, or otherwise, were offered or given by the
Contractor or any of its agents, employees, or representatives to any official member, Council Member, or
employee of the Town or other governmental agency with a view toward securing this Contract or
securing favorable treatment with respect to the awarding or amending or the making of any
determination with respect to the performance of this Contract.
Company Name
By
Title
Subscribed and sworn to before me
Notary Public
This day of 20 , in and for the State of residing in
the County of
Notary Signature Commission Expires:
1 -70 Regional Transportation Operations Facility
Exhibit C: Special Provisions
Adopted: December 14, 2010
Page 18 of 23 .
1 -70 Regional Transportation Operations Facility
Exhibit C: Special Provisions
Adopted: December 14, 2010
Page 19 of 23
FORM C.8
NON - COLLUSION BIDDING CERTIFICATE
TOWN OF AVON GOVERNMENT (d.b.a. the Town)
By submission of this bid, each bidder and each person signing on behalf of any bidder certifies, and in
the case of a joint bid, each party certifies as to its own organization, under penalty of perjury, that to the
best knowledge and belief:
1. The prices in this bid have been arrived at independently without collusion, consultation,
communication, or agreement, for the purpose of restricting competition as to any other matter relating to
such prices with any other bidder or with any other competitor.
2. Unless otherwise required by law, the prices which have been quoted in this bid have not been
knowingly disclosed by the bidder prior to opening, directly or indirectly to any other bidder or competitor.
3. No attempt has been made or will be made by the bidder to induce any other person, partnership or
corporation to submit or not submit a bid for the purpose of restricting competition.
Company Name
Signature of Company Official
Title
Date
1 -70 Regional Transportation Operations Facility
Exhibit C: Special Provisions
Adopted: December 14, 2010
Page 20 of 23
FORM C.9
SECURITY COMPLIANCE CERTIFICATION
TOWN OF AVON GOVERNMENT (d.b.a. the Avon)
The Proposer /Bidder hereby agrees that the Town Council of The Town of Avon has the right to reject
any or all bids and to waive informality in any bid and that the Bidder shall not dispute the correctness of
the quantities used in computing the lowest bid.
By execution below, Bidder hereby offers to furnish equipment, goods, and or services as indicated
herein:
Bidder:
Company Name:
Business Street Address:
City, State, Zip:
Signature of Authorized Company Official & Title
Telephone Numbers, Voice and Fax:
I -70 Regional Transportation Operations Facility
Exhibit C: Special Provisions
Adopted: December 14, 2010
Page 21 of 23
FORM CAA
NON - DISCRIMINATION AFFIDAVIT
TOWN OF AVON GOVERNMENT (d.b.a. the Town)
STATE OF: }
} ss.
THE COUNTY OF: }
1. That he /she is the
being first duly sworn and deposes and says:
(President or other official title) of
(Company, Partnership, or Corporation) organized,
and existing under any by virtue of the laws of the State of and in whose behalf
he /she makes this affidavit:
2. That does not and will not discriminate in its employment practices because of race,
ancestry, color religion, sex, age, national origin, physical or mental disability, or veteran status, as
defined and required by law.
3. That further understands this contract, purchase order or agreement is subject to
the Urban Mass Transportation Act of 1964, as amended (49 USC 1601, ETSEQ.); and shall be subject
to all rules and /or regulations issued pursuant thereto regarding nondiscrimination in federally assisted
programs of the United States Department of Transportation (USDOT).
4. That any listed persons, firms or corporations have interest in this proposal /bid as subcontractors; that
this proposal /bid is offered without any connection or without collusion or fraud, and also that no member
of the trustees, head of any department or bureau, or employee therein, or any employee of the Town, is
directly or indirectly interested therein.
5. That they acknowledge receipt herein of the Town Procurement Policy and agree to abide by its rules,
whether or not herein specifically itemized.
Company, Partnership or Corporation name
President or other Official
Subscribed and sworn to before me, this , day of 20
Seal
Notary Public in and for the County of
, State of
My commission expires on the day of 120
1 -70 Regional Transportation Operations Facility
Exhibit C: Special Provisions
Adopted: December 14, 2010
Page 22 of 23
FORM C.11
CERTIFICATION OF PRIMARY PARTICIPATION REGARDING DEBARMENT, SUSPENSION, and
MATTERS OF RESPONSIBILITY
FTA C2015.1 4/28/89
The primary Participant (potential contractor for third party contract) certifies
to the best of its knowledge and belief, that it and its principals:
1 . Are not debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded
from covered transactions by any Federal department or agency;
2. Have not within a three -year period preceding this proposal been convicted of or had a civil judgment
rendered against them for commission of fraud or a criminal offense in connection with obtaining,
attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public
transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery,
bribery, falsification or destruction of records, making false statements, or receiving stolen property;
3. Are not presently indicted or otherwise criminally or civilly charged by a government entity (Federal,
State, or local) with commission of any of these offenses enumerated in paragraph (2) of this certification;
and
4. Have not within a three -year period preceding this application /proposal had one or more public
transactions(s) (Federal, State, or local) terminated for cause or default.
(If the primary participant (applicant for potential third party contract) is unable to certify to any of the
statements in this certification, the participant shall attach an explanation to this certificate.)
The primary participant (applicant for a third party contract), certifies or
affirms the truthfulness and accuracy of the contents of the statements submitted on or with this
certification and understands that the provisions of 31 U.S.C. section 3801 ET SEQ are applicable
thereto.
Signature and Title of Authorized Official
1 -70 Regional Transportation Operations Facility
Exhibit C: Special Provisions
Adopted: December 14, 2010
Page 23 of 23
Date
EXHIBIT D
FEDERAL -AID CONTRACT PROVISIONS
Avon Swift Gulch Project
Exhibit D: Federal Aid Contract Provisions
Adopted: December 14, 2010
Page 1 of 1
CERTIFICATION FOR FEDERAL -AID CONTRACTS
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 or of Congress, or an employee of a Member of
Congress in connection with this Federal contract, Agreement, loan, or cooperative agreement, the
undersigned shall complete and submit Standard Form -LLL, "Disclosure Form to Report Lobbying," in
accordance with its instructions.
This certification is a material representation of fact upon which reliance was placed when this
transaction was made or entered into. Submission of this certification is a prerequisite for making or
entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to
file the required certification shall be subject to a civil penalty of not less than $10,000 and not more
than $100,000 for each such failure.
The prospective participant. also agree by submitting his or her bid or proposal that he or she shall
require that the language of this certification be included in all lower tier subcontracts, which exceed
$100,000 and that all such sub - recipients shall certify and disclose accordingly.
Required by 23 CFR 635.112
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 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
Federal and State regulations, i.e., 23 CFR 172 and CRS §24 -30 -1401 et seq.
[Local agencies should have their own written procedures on file for each method of procurement
that addresses the items in 23 CFR 172].
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
pre - qualified prime consultants and their team. It also shows which criteria are
used to short-list and to make a final selection.
The short -list is based on the following evaluation factors:
a. Qualifications,
b. Approach to the Work,
c. Ability to furnish professional services.
d. Anticipated design concepts, and
e. Alternative methods of approach for furnishing the professional services.
Evaluation factors for final selection are the consultant's:
a. Abilities of their personnel,
b. Past performance,
c. Willingness to meet the time and budget requirement,
d. Location,
e. Current and projected work load,
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 prepares a
performance evaluation on the consultant.
8. Each of the steps listed above is to be documented in accordance with the provisions of 49
CFR 18.42, which provide for records to be kept at least three years from the date that the
local agency submits its final expenditure report. Records of projects under litigation shall be
kept at least three years after the case has been settled.
CRS § §24 -30 -1401 through 24 -30 -1408, 23 CFR Part 172, and P.D. 400.1, provide additional
details for complying with the preceeding eight (8) steps.
FEDERAL -AID CONTRACT PROVISIONS
FHWA Form 1273
REQUIRED CONTRACT PROVISIONS
FEDERAL -AID CONSTRUCTION CONTRACTS
I. General 1
II. Nondiscrimination ..................................................... ...............................
1
III. Non - segregated Facilities ........................................ ...............................
3
IV.Payment of Predetermined Minimum Wage ............ ...............................
3
V.Statements and Payrolls .......................................... ...............................
6
VI.Record of Materials, Supplies, and Labor ................ ...............................
6
VII. Subletting or Assigning the Contract ..... ...............................
7
VIII. Safety: Accident Prevention .................. ...............................
7
IX. False Statements Concerning Highway Projects ..... ...............................
7
X. Implementation of Clean Air Act and Federal
Water Pollution Control Act ...................................... ...............................
8
X 1. Certification Regarding Debarment, Suspension,
Ineligibility, and Voluntary Exclusion ........................ ...............................
8
XII. Certification Regarding Use of Contract Funds for
Lobbying.................................................................... ...............................
9
ATTACHMENTS
A.Employment Preference for Appalachian Contracts
(included in Appalachian contracts only)
(.GENERAL
1. These contract provisions shall apply to all work performed on the
contract by the contractor's own organization and with the assistance of
workers under the contractor's immediate superintendence and to all
work performed on the contract by piecework, station work, or by
subcontract.
2. Except as otherwise provided for in each section, the contractor
shall insert in each subcontract all of the stipulations contained in these
Required Contract Provisions, and further require their inclusion in any
lower tier subcontract or purchase order that may in turn be made. The
Required Contract Provisions shall not be incorporated by reference in
any case. The prime contractor shall be responsible for compliance by
any subcontractor or lower tier subcontractor with these Required
Contract Provisions.
3. A breach of any of the stipulations contained in these Required
Contract Provisions shall be sufficient grounds for termination of the
contract.
4. A breach of the following clauses of the Required Contract
Provisions may also be grounds for debarment as provided in 29 CFR
5.12:
Section I, paragraph 2;
Section IV, paragraphs 1, 2, 3, 4, and 7;
Section V, paragraphs 1 and 2a through 2g.
5. Disputes arising out of the labor standards provisions of Section IV
(except paragraph 5) and Section V of these Required Contract
Provisions shall not be subject to the general disputes clause of this
Agreement. Such disputes shall be resolved in accordance with the
procedures of the U.S. Department of Labor (DOL) as set forth in 29
CFR 5, 6, and 7. Disputes within the meaning of this clause include
disputes between the contractor (or any of its subcontractors) and the
contracting agency, the DOL, or the contractor's employees or their
representatives.
6. Selection of Labor: During the performance of this Agreement,
the contractor shall not:
a. discriminate against labor from any other State, possession, or
territory of the United States (except for employment preference for
Appalachian contracts, when applicable, as specified in Attachment A),
or
b employ convict labor for any purpose within the limits of the
project unless it is labor performed by convicts who are on parole,
supervised release, or probation.
II. NONDISCRIMINATION
(Applicable to all Federal -aid construction contracts and to all related
subcontracts of $10,000 or more.)
1. Equal Employment Opportunity: Equal employment opportunity
(EEO) requirements not to discriminate and to take affirmative action to
assure equal opportunity as set forth under laws, executive orders,.
FHWA -1273 Electronic version -- March 10, 1994
rules, regulations (28 CFR 35, 29 CFR 1630 and 41 CFR 60) and orders
of the Secretary of Labor as modified by the provisions prescribed
herein, and imposed pursuant to 23 U.S.C. 140 shall constitute the EEO
and specific affirmative action standards for the contractor's project
activities under this Agreement. The Equal Opportunity Construction
Contract Specifications set forth under 41 CFR 60 -4.3 and the
provisions of the American Disabilities Act of 1990 (42 U.S.C. 12101 gj
Ng.) set forth under 28 CFR 35 and 29 CFR 1630 are incorporated by
reference in this Agreement. In the execution of this Agreement, the
contractor agrees to comply with the following minimum specific
requirement activities of EEO:
a. The contractor will work with the State highway agency (SHA)
and the Federal Government in carrying out EEO obligations and in their
review of his /her activities under the contract.
b. The contractor will accept as his operating policy the following
statement:
"It is the policy of this Company to assure that applicants are
employed, and that employees are treated during employment,
without regard to their race, religion, sex, color, national origin, age
or disability. Such action shall include: employment, upgrading,
demotion, or transfer; recruitment or recruitment advertising; layoff
or termination; rates of pay or other forms of compensation; and
selection for training, including apprenticeship, pre- apprenticeship,
and /or on -the -job training."
2. EEO Officer: The contractor will designate and make known to the
SHA contracting officers an EEO Officer who will have the responsibility
for and must be capable of effectively administering and promoting an
active contractor program of EEO and who must be assigned adequate
authority and responsibility to do so.
3. Dissemination of Policy: All members of the contractor's staff
who are authorized to hire, supervise, promote, and discharge
employees, or who recommend such action, or who are substantially
involved in such action, will be made fully cognizant of, and will
implement, the contractor's EEO policy and contractual responsibilities
to provide EEO in each grade and classification of employment. To
ensure that the above agreement will be met, the following actions will
be taken as a minimum:
a. Periodic meetings of supervisory and personnel office
employees will be conducted before the start of work and then not less
often than once every six months, at which time the contractor's EEO
policy and its implementation will be reviewed and explained. The
meetings will be conducted by the EEO Officer.
b. All new supervisory or personnel office employees will be
given a thorough indoctrination by the EEO Officer, covering all major
aspects of the contractor's EEO obligations within thirty days following
their reporting for duty with the contractor.
c. All personnel who are engaged in direct recruitment for the
project will be instructed by the EEO Officer in the contractor's
procedures for locating and hiring minority group employees.
d. Notices and posters setting forth the contractor's EEO policy
will be placed in areas readily accessible to employees, applicants for
employment and potential employees.
e. The contractor's EEO policy and the procedures to implement
such policy will be brought to the attention of employees by means of
meetings, employee handbooks, or other appropriate means.
4. Recruitment: When advertising for employees, the contractor will
include in all advertisements for employees the notation: "An Equal
Opportunity Employer." All such advertisements will be placed in
publications having a large circulation among minority groups in the area
from which the project work force would normally be derived.
a. The contractor will, unless precluded by a valid bargaining
agreement, conduct systematic and direct recruitment through public
and private employee referral sources likely to yield qualified minority
group applicants. To meet this requirement, the contractor will identify
sources of potential minority group employees, and establish with such
identified sources procedures whereby minority group applicants may be
referred to the contractor for employment consideration.
b. In the event the contractor has a valid bargaining agreement
providing for exclusive hiring hall referrals, he is expected to observe the
provisions of that agreement to the extent that the system permits the
contractor's compliance with EEO contract provisions. (The DOL has
held that where implementations of such agreements have the effect of
discriminating against minorities or women, or obligates the contractor to
do the same, such implementation violates Executive Order 11246, as
amended.)
c. The contractor will encourage his present employees to refer
minority group applicants for employment. Information and procedures
with regard to referring minority group applicants will be discussed with
employees.
5. Personnel Actions: Wages, working conditions, and employee
benefits shall be established and administered, and personnel actions of
every type, including hiring, upgrading, promotion, transfer, demotion,
layoff, and termination, shall be taken without regard to race, color,
religion, sex, national origin, age or disability. The following procedures
shall be followed:
a. The contractor will conduct periodic inspections of project sites
to insure that working conditions and employee facilities do not indicate
discriminatory treatment of project site personnel.
b. The contractor will periodically evaluate the spread of wages
paid within each classification to determine any evidence of
discriminatory wage practices.
c. The contractor will periodically review selected personnel
actions in depth to determine whether there is evidence of discrimi-
nation. Where evidence is found, the contractor will promptly take
corrective action. If the review indicates that the discrimination may
extend beyond the actions reviewed, such corrective action shall include
all affected persons.
d. The contractor will promptly investigate all complaints of alleged
discrimination made to the contractor in connection with his obligations
under this Agreement, will attempt to resolve such complaints, and will
take appropriate corrective action within a. reasonable time. If the
investigation indicates that the discrimination may affect persons other
than the complainant, such corrective action shall include such other
persons. Upon completion of each investigation, the contractor will
inform every complainant of all of his avenues of appeal.
6. Training and Promotion:
a. The contractor will assist in locating, qualifying, and increasing
the skills of minority group and women employees, and applicants for
employment.
b. Consistent with the contractor's work force requirements and
as permissible under Federal and State regulations, the contractor shall
make full use of training programs, i.e., apprenticeship, and on- the -job
training programs for the geographical area of contract performance.
Where feasible, 25 percent of apprentices or trainees in each occupation
shall be in their first year of apprenticeship or training. In the event a
special provision for training is provided under this Agreement, this
subparagraph will be superseded as indicated in the special provision.
c. The contractor will advise employees and applicants for
employment of available training programs and entrance requirements
for each.
d. The contractor will periodically review the training and
promotion potential of minority group and women employees and will
encourage eligible employees to apply for such training and promotion.
7. Unions: If the contractor relies in whole or in part upon unions as a
source of employees, the contractor will use his/her best efforts to obtain
the cooperation of such unions to increase opportunities for minority
groups and women within the unions, and to effect referrals by such
unions of minority and female employees. Actions by the contractor
either directly or through a contractor's association acting as agent will
include the procedures set forth below:
a. The contractor will use best efforts to develop, in cooperation
with the unions, joint training programs aimed toward qualifying more
minority group members and women for membership in the unions and
increasing the skills of minority group employees and women so that
they may qualify for higher paying employment.
b. The contractor will use best efforts to incorporate an EEO
clause into each union agreement to the end that such union will be
contractually bound to refer applicants without regard to their race, color,
religion, sex, national origin, age or disability.
c. The contractor is to obtain information as to the referral
practices and policies of the labor union except that to the extent such
information is within the exclusive possession of the labor union and
such labor union refuses to furnish such information to the contractor,
the contractor shall so certify to the SHA and shall set forth what efforts
have been made to obtain such information.
d. In the event the union is unable to provide the contractor with a
reasonable flow of minority and women referrals within the time limit set
forth in the collective bargaining agreement, the contractor will, through
independent recruitment efforts, fill the employment vacancies without
regard to race, color, religion, sex, national origin, age or disability;
making full efforts to obtain qualified and /or qualifiable minority group
persons and women. (The DOL has held that it shall be no excuse that
the union with which the contractor has a collective bargaining
agreement providing for exclusive referral failed to refer minority
employees.) In the event the union referral practice prevents the
contractor from meeting the obligations pursuant to Executive Order
11246, as amended, and these special provisions, such contractor shall
immediately notify the SHA.
8. Selection of Subcontractors, Procurement of Materials and
Leasing of Equipment: The contractor shall not discriminate on the
grounds of race, color, religion, sex, national origin, age or disability in
the selection and retention of subcontractors, including procurement of
materials and leases of equipment.
a. The contractor shall notify all potential subcontractors and
suppliers of his/her EEO obligations under this Agreement.
b. Disadvantaged business enterprises (DBE), as defined in 49
CFR 23, shall have equal opportunity to compete for and perform
subcontracts which the contractor enters into pursuant to this
Agreement. The contractor will use his best efforts to solicit bids from
and to utilize DBE subcontractors or subcontractors with meaningful
minority group and female representation among their employees.
Contractors shall obtain lists of DBE construction firms from SHA
personnel.
c. The contractor will use his best efforts to ensure subcontractor
compliance with their EEO obligations.
9. Records and Reports: The contractor shall keep such records as
necessary to document compliance with the EEO requirements. Such
records shall be retained for a period of three years following completion
of the contract work and shall be. available at reasonable times and
places for inspection by authorized representatives of the SHA and the
FHWA.
a. The records kept by the contractor shall document the
following:
(1) The number of minority and non - minority group members
and women employed in each work classification on the project;
(2) The progress and efforts being made in cooperation with
unions, when applicable, to increase employment opportunities for
minorities and women;
(3) The progress and efforts being made in locating, hiring,
training, qualifying, and upgrading minority and female employees; and
(4) The progress and efforts being made in securing the
services of DBE subcontractors or subcontractors with meaningful
minority and female representation among their employees.
b. The contractors will submit an annual report to the SHA each
July for the duration of the project, indicating the number of minority,
women, and non - minority group employees currently engaged in each
work classification required by the contract work. This information is to
be reported on Form FHWA -1391. If on -the job training is being required
by special provision, the contractor will be required to collect and report
training data.
III. NONSEGREGATED FACILITIES
(Applicable to all Federal -aid construction contracts and to all related
subcontracts of $10,000 or more.)
a. By submission of this bid, the execution of this Agreement or
subcontract, or the consummation of this material supply agreement or
purchase order, as appropriate, the bidder, Federal -aid construction
contractor, subcontractor, material supplier, or vendor, as appropriate,
certifies that the firm does not maintain or provide for its employees any
segregated facilities at any of its establishments, and that the firm does
not permit its employees to perform their services at any location, under
its control, where segregated facilities are maintained. The firm agrees
that a breach of this certification is a violation of the EEO provisions of
this Agreement. The firm further certifies that no employee will be denied
access to adequate facilities on the basis of sex or disability.
b. As used in this certification, the term "segregated facilities"
means any waiting rooms, work areas, restrooms and washrooms,
restaurants and other eating areas, timeclocks, locker rooms, and other
storage or dressing areas, parking lots, drinking fountains. recreation or
entertainment areas, transportation, and housing facilities provided for
employees which are segregated by explicit directive, or are, in fact,
segregated on the basis of race, color, religion, national origin, age or
disability, because of habit, local custom, or otherwise. The only
exception will be for the disabled when the demands for accessibility
override (e.g. disabled parking).
c. The contractor agrees that it has obtained or will obtain identical
certification from proposed subcontractors or material suppliers prior to
award of subcontracts or consummation of material supply agreements
of $10,000 or more and that it will retain such certifications in its files.
IV. PAYMENT OF PREDETERMINED MINIMUM WAGE
(Applicable to all Federal -aid construction contracts exceeding
$2,000 and to all related subcontracts, except for projects located on
roadways classified as local roads or rural minor collectors, which are
exempt.)
1. General:
a. All mechanics and laborers employed or working upon the site
of the work will be paid unconditionally and not less often than once a
week and without subsequent deduction or rebate on any account
[except such payroll deductions as are permitted by regulations (29 CFR
3) issued by the Secretary of Labor under the Copeland Act (40 U.S.C.
276c)) the full amounts of wages and bona fide fringe benefits (or cash
equivalents thereof) due at time of payment. The payment shall be
computed at wage rates not less than those contained in the. wage
determination of the Secretary of Labor (hereinafter "the wage determi-
nation") which is attached hereto and made a part hereof, regardless of
any contractual relationship which may be alleged to exist between the
contractor or its subcontractors and such laborers and mechanics. The
wage determination (including any additional classifications and wage
rates conformed under paragraph 2 of this Section IV and the DOL
poster (WH -1321) or Form FHWA -1495) shall be posted at all times by
the contractor and its subcontractors at the site of the work in a
prominent and accessible place where it can be easily seen by the
workers. For the purpose of this Section, contributions made or costs
reasonably anticipated for bona fide fringe benefits under Section 1(b)(2)
of the Davis -Bacon Act (40 U.S.C. 276a) on behalf of laborers or
mechanics are considered wages paid to such laborers or mechanics,
subject to the provisions of Section IV, paragraph 3b, hereof. Also, for
the purpose of this Section, regular contributions made or costs incurred
for more than a weekly period (but not less often than quarterly) under
plans, funds, or programs, which cover the particular weekly period, are
deemed to be constructively made or incurred during such weekly
period. Such laborers and mechanics shall be paid the appropriate wage
rate and fringe benefits on the wage determination for the classification
of work actually performed, without regard to skill, except as provided in
paragraphs 4 and 5 of this Section IV.
b. Laborers or mechanics performing work in more than one
classification may be compensated at the rate specified for each
classification for the time actually worked therein, provided, that the
employer's payroll records accurately set forth the time spent in each
classification in which work is performed.
c. All rulings and interpretations of the Davis -Bacon Act and
related acts contained in 29 CFR 1, 3, and 5 are herein incorporated by
reference in this Agreement.
2. Classificetioh:
a. The SHA contracting officer shall require that any class of
laborers or mechanics employed under the contract, which is not listed
in the wage determination, shall be classified in conformance with the
wage determination.
b. The contracting officer shall approve an additional
classification, wage rate and fringe benefits only when the following
criteria have been met:
(1) the work to be performed by the additional classification
requested is not performed by a classification in the wage determination;
(2) the additional classification is utilized in the area by the
construction industry;
(3) the proposed wage rate, including any bona fide fringe
benefits, bears a reasonable relationship to the wage rates contained in
the wage determination; and
(4) with respect to helpers, when such a classification
prevails in the area in which the work is performed.
c. If the contractor or subcontractors, as appropriate, the laborers
and mechanics (if known) to be employed in the additional classification
or their representatives. and the contracting officer agree on the
classification and wage rate (including the amount designated for fringe
benefits where appropriate), a report of the action taken shall be sent by
the contracting officer to the DOL, Administrator of the Wage and Hour
Division, Employment Standards Administration, Washington, D.C.
20210. The Wage and Hour Administrator, or an authorized representa-
tive, will approve, modify, or disapprove every additional classification
action within 30 days of receipt and so advise the contracting officer or
will notify the contracting officer within the 30 -day period that additional
time is necessary.
d. In the event the contractor or subcontractors, as appropriate,
the laborers or mechanics to be employed in the additional classification
or their representatives, and the contracting officer do not agree on the
proposed classification and wage rate (including the amount designated
for fringe benefits, where appropriate), the contracting officer shall refer
the questions, including the views of all interested parties and the
recommendation of the contracting officer, to the Wage and Hour
Administrator for determination. Said Administrator, or an authorized
representative, will issue a determination within 30 days of receipt and
so advise the contracting officer or will notify the contracting officer
within the 30-day period that additional time is necessary
e. The wage rate (including fringe benefits where appropriate)
determined pursuant to paragraph 2c or 2d of this Section IV shall be
paid to all workers performing work in the additional classification from
the first day on which work is performed in the classification.
3. Payment of Fringe Benefits:
a. Whenever the minimum wage rate prescribed in the contract
for a class of laborers or mechanics includes a fringe benefit which is not
expressed as an hourly rate, the contractor or subcontractors, as
appropriate, shall either pay the benefit as stated in the wage
determination or shall pay another bona fide fringe benefit or an hourly
case equivalent thereof.
b. If the contractor or subcontractor, as appropriate, does not
make payments to a trustee or other third person, he /she may consider
as a part of the wages of any laborer or mechanic the amount of any
costs reasonably anticipated in providing bona fide fringe benefits under
a plan or program, provided, that the Secretary of Labor has found, upon
the written request of the contractor, that the applicable standards of the
Davis -Bacon Act have been met. The Secretary of Labor may require
the contractor to set aside in a separate account assets for the meeting
of obligations under the plan or program.
4. Apprentices and Trainees (Programs of the U.S. DOL) and
Helpers:
a. Apprentices:
(1) Apprentices will be permitted to work at less than the
predetermined rate for the work they performed when they are employed
pursuant to and individually registered in a bona fide apprenticeship
program registered with the DOL, Employment and Training
Administration, Bureau of Apprenticeship and Training, or with a State
apprenticeship agency recognized by the Bureau, or if a person is
employed in his/her first 90 days of probationary employment as an
apprentice in such an apprenticeship program, who is not individually
registered in the program, but who has been certified by the Bureau of
Apprenticeship and Training or a State apprenticeship agency (where
appropriate) to be eligible for probationary employment as an
apprentice.
(2) The allowable ratio of apprentices to journeyman -level
employees on the job site in any craft classification shall not be greater
than the ratio permitted to the contractor as to the entire work force
under the registered program. Any employee listed on a payroll at an
apprentice wage rate, who is not registered or otherwise employed as
stated above, shall be paid not less than the applicable wage rate listed
in the wage determination for the classification of work actually
performed. In addition, any apprentice performing work on the job site in
excess of the ratio permitted under the registered program shall be paid
not less than the applicable wage rate on the wage determination for the
work actually performed. Where a contractor or subcontractor is
performing construction on a project in a locality other than that in which
its program is registered, the ratios and wage rates (expressed in
percentages of the journeyman -level hourly rate) specified in the
contractor's or subcontractor's registered program shall be observed.
(3) Every apprentice must be paid at not less than the rate
specified in the registered program for the apprentice's level of progress,
expressed as a percentage of the journeyman -level hourly rate specified
in the applicable wage determination. Apprentices shall be paid fringe
benefits in accordance with the provisions of the apprenticeship
program. If the apprenticeship program does not specify fringe benefits,
apprentices must be paid the full amount of fringe benefits listed on the
wage determination for the applicable classification. If the Administrator
for the Wage and Hour Division determines that a different practice
prevails for the applicable apprentice classification, fringes shall be paid
in accordance with that determination.
(4) In the event the Bureau of Apprenticeship and Training,
or a State apprenticeship agency recognized by the Bureau, withdraws
approval of an apprenticeship program, the contractor or subcontractor
will no longer be permitted to utilize apprentices at less than the
applicable predetermined rate for the comparable work performed by
regular employees until an acceptable program is approved.
b. Trainees
(1) Except as provided in 29 CFR 5.16, trainees will not be
permitted to work at less than the predetermined rate for the work
performed unless they are employed pursuant to and individually
registered in a program which has received prior approval, evidenced by
formal certification by the DOL, Employment and Training
Administration.
(2) The ratio of trainees to journeyman -level employees on
the job site shall not be greater than permitted under the plan approved
by the Employment and Training Administration. Any employee listed on
the payroll at a trainee rate who is not registered and participating in a
training plan approved by the Employment and Training Administration
shall be paid not less than the applicable wage rate on the wage
determination for the classification of work actually performed. In
addition, any trainee performing work on the job site in excess of the
ratio permitted under the registered program shall be paid not less than
the applicable wage rate on the wage determination for the work actually
performed.
(3) Every trainee must be paid at not less than the rate
specified in the approved program for his/her level of progress,
expressed as a percentage of the journeyman -level hourly rate specified
in the applicable wage determination. Trainees shall be paid fringe
benefits in accordance with the provisions of the trainee program. If the
trainee program does not mention fringe benefits, trainees shall be paid
the full amount of fringe benefits listed on the wage determination unless
the Administrator of the Wage and Hour Division determines that there is
an apprenticeship program associated with the corresponding
journeyman -level wage rate on the wage determination which provides
for less than full fringe benefits for apprentices, in which case such
trainees shall receive the same fringe benefits as apprentices.
(4) In the event the Employment and Training Administration
withdraws approval of a training program, the contractor or
subcontractor will no longer be permitted to utilize trainees at less than
the applicable predetermined rate for the work performed until an
acceptable program is approved.
c. Helpers
Helpers will be permitted to work on a project if the helper
classification is specified and defined on the applicable wage determina-
tion or is approved pursuant to the conformance procedure set forth in
Section IV.2. Any worker listed on a payroll at a helper wage rate, who is
not a helper under a approved definition, shall be paid not less than the
applicable wage rate on the wage determination for the classification of
work actually performed.
5. Apprentices and Trainees (Programs of the U.S. DOT):
Apprentices and trainees working under apprenticeship and skill
training programs which have been certified by the Secretary of
Transportation as promoting EEO in connection with Federal -aid
highway construction programs are not subject to the requirements of
paragraph 4 of this Section IV. The straight time hourly wage rates for
apprentices and trainees under such programs will be established by.the
particular programs. The ratio of apprentices and trainees to journeymen
shall not be greater than permitted by the terms of the particular
program.
6. Withholding:
The SHA shall upon its own action or upon written request of an
authorized representative of the DOL withhold, or cause to be withheld,
from the contractor or subcontractor under this Agreement or any other
Federal contract with the same prime contractor, or any other Federally -
assisted contract subject to Davis -Bacon prevailing wage requirements
which is held by the same prime contractor, as much of the accrued
payments or advances as may be considered necessary to pay laborers
and mechanics, including apprentices, trainees, and helpers, employed
by the contractor or any subcontractor the full amount of wages required
by the contract. In the event of failure to pay any laborer or mechanic,
including any apprentice, trainee, or helper, employed or working on the
site of the work, all or part of the wages required by the contract, the
SHA contracting officer may, after written notice to the contractor, take
such action as may be necessary to cause the suspension of any further
payment, advance, or guarantee of funds until such violations have
ceased.
7. Overtime Requirements:
No contractor or subcontractor contracting for any part of the
contract work which may require or involve the employment of laborers,
mechanics, watchmen, or guards (including apprentices, trainees, and
helpers described in paragraphs 4 and 5 above) shall require or permit
any laborer, mechanic, watchman, or guard in any workweek in which
he /she is employed on such work, to work in excess of 40 hours in such
workweek unless such laborer, mechanic, watchman, or guard receives
compensation at a rate not less than one - and - one -half times his/her
basic rate of pay for all hours worked in excess of 40 hours in such
workweek.
8. Violation:
Liability for Unpaid Wages; Liquidated Damages: In the event of any
violation of the clause set forth in paragraph 7 above, the contractor and
any subcontractor responsible thereof shall be liable to the affected
employee for his/her unpaid wages. In addition, such contractor and
subcontractor shall be liable to the United States (in the case of work
done under contract for the District of Columbia or a territory, to such
District or to such territory) for liquidated damages. Such liquidated
damages shall be computed with respect to each individual laborer,
mechanic, watchman, or guard employed in violation of the clause set
forth in paragraph 7, in the sum of $10 for each calendar day on which
such employee was required or permitted to work in excess of the
standard work week of 40 hours without payment of the overtime wages
required by the clause set forth in paragraph 7.
9. Withholding for Unpaid Wages and Liquidated Damages:
The SHA shall upon its own action or upon written request of any
authorized representative of the DOL withhold, or cause to be withheld,
from any monies payable on account of work performed by the
contractor or subcontractor under any such contract or any other
Federal contract with the same prime contractor, or any other Federally -
assisted contract subject to the Contract Work Hours and Safety
Standards Act, which is held by the same prime contractor, such sums
as may be determined to be necessary to satisfy any liabilities of such
contractor or subcontractor for unpaid wages and liquidated damages as
provided in the clause set forth in paragraph 8 above.
V. STATEMENTS AND PAYROLLS
(Applicable to all Federal -aid construction contracts exceeding $2,000
and to all related subcontracts, except for projects located on roadways
classified as local roads or rural collectors, which are exempt.)
1. Compliance with Copeland Regulations (29 CFR 3):
The contractor shall comply with the Copeland Regulations of the
Secretary of Labor which are herein incorporated by reference.
2. Payrolls and Payroll Records:
a. Payrolls and basic records relating thereto shall be
maintained by the contractor and each subcontractor during the course
of the work and preserved for a period of 3 years from the date of
completion of the contract for all laborers, mechanics, apprentices,
trainees, watchmen, helpers, and guards working at the site of the work.
b. The payroll records shall contain the name, social security
number, and address of each such employee; his or her correct
classification; hourly rates of wages paid (including rates of contributions
or costs anticipated for bona fide fringe benefits or cash equivalent
thereof the types described in Section 1(b)(2)(B) of the Davis Bacon
Act); daily and weekly number of hours worked; deductions made; and
actual wages paid. In addition, for Appalachian contracts, the payroll
records shall contain a notation indicating whether the employee does,
or does not, normally reside in the labor area as defined in Attachment
A, paragraph 1. Whenever the Secretary of Labor, pursuant to Section
IV, paragraph 3b, has found that the wages of any laborer or mechanic
include the amount of any costs reasonably anticipated in providing
benefits under a plan or program described in Section 1(b)(2)(B) of the
Davis Bacon Act, the contractor and each subcontractor shall maintain
records which show that the commitment to provide such benefits is
enforceable, that the plan or program is financially responsible, that the
plan or program has been communicated in writing to the laborers or
mechanics affected, and show the cost anticipated or the actual cost
incurred in providing benefits. Contractors or subcontractors employing
apprentices or trainees under approved programs shall maintain written
evidence of the registration of apprentices and trainees, and ratios and
wage rates prescribed in the applicable programs.
c. Each contractor and subcontractor shall furnish, each week in
which any contract work is performed, to the SHA resident engineer a
payroll of wages paid each of its employees (including apprentices,
trainees, and helpers, described in Section IV, paragraphs 4 and 5, and
watchmen and guards engaged on work during the preceding weekly
payroll period). The payroll submitted shall set out accurately and
completely all of the information required to be maintained under
paragraph 2b of this Section V. This information may be submitted in
any form desired. Optional Form WH -347 is available for this purpose
and may be purchased from the Superintendent of Documents (Federal
stock number 029- 005 - 0014 -1), U.S. Government Printing Office,
Washington, D.C. 20402. The prime contractor is responsible for the
submission of copies of payrolls by all subcontractors.
d. Each payroll submitted shall be accompanied by a "Statement
of Compliance," signed by the contractor or subcontractor or his/her
agent who pays or supervises the payment of the persons employed
under the contract and shall certify the following:
(1) that the payroll for the payroll period contains the
information required to be maintained under paragraph 2b of this
Section V and that such information is correct and complete;
(2) that such laborer or mechanic (including each helper,
apprentice, and trainee) employed on the contract during the payroll
period has been paid the full weekly wages earned, without rebate,
either directly or indirectly, and that no deductions have been made
either directly or indirectly from the full wages earned, other than
permissible deductions as set forth in the Regulations, 29 CFR 3;
(3) that each laborer or mechanic has been paid not less that
the applicable wage rate and fringe benefits or cash equivalent for the
.classification of worked performed, as specified in the applicable wage
determination incorporated into the contract.
e. The weekly submission of a properly executed certification set
forth on the reverse side of Optional Form WH -347 shall satisfy the
requirement for submission of the "Statement of Compliance" required
by paragraph 2d of this Section V.
I. The falsification of any of the above certifications may subject
the contractor to civil or criminal prosecution under 16 U.S.C. 1001 and
31 U.S.C. 231.
g. The contractor or subcontractor shall make the records
required under paragraph 2b of this Section V available for inspection,
copying, or transcription by authorized representatives of the SHA, the
FHWA, or the DOL, and shall permit such representatives to interview
employees during Working hours on the job. If the contractor or
subcontractor fails to submit the required records or to make them
available, the SHA, the FHWA, the DOL, or all may, after written notice
to the contractor, sponsor, applicant, or owner, take such actions as may
be necessary to cause the suspension of any further payment, advance,
or guarantee of funds. Furthermore, failure to submit the required
records upon request or to make such records available may be grounds
for debarment action pursuant to 29 CFR 5.12.
VI. RECORD OF MATERIALS, SUPPLIES, AND LABOR
1. On all Federal -aid contracts on the National Highway System,
except those which provide solely for the installation of protective
devices at railroad grade crossings, those which are constructed on a
force account or direct labor basis, highway beautification contracts, and
contracts for which the total final construction cost for roadway and
bridge is less than $1,000,000 (23 CFR 635) the contractor shall:
a. Become familiar with the list of specific materials and
supplies contained in Form FHWA -47, "Statement of Materials and
Labor Used by Contractor of Highway Construction Involving Federal
Funds," prior to the commencement of work under this Agreement.
b. Maintain a record of the total cost of all materials and
supplies purchased for and incorporated in the work, and also of the
quantities of those specific materials and supplies listed on Form FHWA -
47. and in the units shown on Form FHWA -47.
c. Furnish, upon the completion of the contract, to the SHA
resident engineer on Form FHWA -47 together with the data required in
paragraph 1 b relative to materials and supplies, a final labor summary of
all contract work indicating the total hours worked and the total amount
earned.
2. At the prime contractor's option, either a single report covering all
contract work or separate reports for the contractor and for each
subcontract shall be submitted.
VII. SUBLETTING OR ASSIGNING THE CONTRACT
1. The contractor shall perform with its own organization contract
work amounting to not less than 30 percent (or a greater percentage if
specified elsewhere in the contract) of the total origina! contract price,
excluding any specialty items designated by the State. Specialty items
may be performed by subcontract and the amount of any such specialty
items performed may be deducted from the total original contract price
before computing the amount of work required to be performed by the
contractor's own organization (23 CFR 635).
a. "Its own organization" shall be construed to include only
workers employed and paid directly by the prime contractor and
equipment owned or rented by the prime contractor, with or without
operators. Such term does not include employees or equipment of a
subcontractor, assignee, or agent of the prime contractor.
b. "Specialty Items" shall be construed to be limited to work
that requires highly specialized knowledge, abilities, or equipment not
ordinarily available in the type of contracting organizations qualified and
expected to bid on the contract as a whole and in general are to be
limited to minor components of the overall contract.
2. The contract amount upon which the requirements set forth in
paragraph 1 of Section VII is computed includes the. cost of material and
manufactured products which are to be purchased or produced by the
contractor under the contract provisions.
3. The contractor shall furnish (a) a competent superintendent or
supervisor who is employed by the firm, has full authority to direct
performance of the work in accordance with the contract requirements,
and is in charge of all construction operations (regardless of who
performs the work) and (b) such other of its own organizational
resources (supervision, management, and engineering services) as the
SHA contracting officer determines is necessary to assure the
performance of the contract.
4. No portion of the contract shall be sublet, assigned or otherwise
disposed of except with the written consent of the SHA contracting
officer, or authorized representative, and such consent when given shall
not be construed to relieve the contractor of any responsibility for the
fulfillment of the contract. Written consent will be given only after the
SHA has assured that each subcontract is evidenced in writing and that
it contains all pertinent provisions and requirements of the prime
contract.
VIII. SAFETY: ACCIDENT PREVENTION
1. In the performance of this Agreement the contractor shall comply
with all applicable Federal, State, and local laws governing safety,
health, and sanitation (23 CFR 635). The contractor shall provide all
safeguards, safety devices and protective equipment and take any other
needed actions as it determines, or as the SHA contracting officer may
determine, to be reasonably necessary to protect the life and health of
employees on the job and the safety of the public and to protect property
in connection with the performance of the work covered by the contract.
2. It is a condition of this Agreement, and shall be made a condition of
each subcontract, which the contractor enters into pursuant to this
Agreement, that the contractor and any subcontractor shall not permit
any employee, in performance of the contract, to work in surroundings or
under conditions which are unsanitary, hazardous or dangerous to
his/her health or safety, as determined under construction safety and
health standards (29 CFR 1926) promulgated by the Secretary of Labor,
in accordance with Section 107 of the Contract Work Hours and Safety
Standards Act (40 U.S.C. 333).
3. Pursuant to 29 CFR 1926.3, it is a condition of this Agreement that
the Secretary of Labor or authorized representative thereof, shall have
right of entry to any site of contract performance to inspect or investigate
the matter of compliance with the construction safety and health
standards and to carry out the duties of the Secretary under Section 107
of the Contract Work Hours and Safety Standards Act (40 U.S.C. 333).
IX. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS
In order to assure high quality and durable construction in conformity
with approved plans and specifications and a high degree of reliability on
statements and representations made by engineers, contractors, suppli-
ers, and workers on Federal -aid highway projects, it is essential that all
persons concerned with the project perform their functions as carefully,
thoroughly, and honestly as possible. Willful falsification, distortion, or
misrepresentation with respect to any facts related to the project Is a
violation of Federal law. To prevent any misunderstanding regarding the
seriousness of these and similar acts, the following notice shall be
posted on each Federal -aid highway project (23 CFR 635) in one or
more places where it is readily available to all persons concerned with
the project:
NOTICE TO ALL PERSONNEL ENGAGED ON FEDERAL -AID
HIGHWAY PROJECTS
18 U.S.C. 1020 reads as follcws:
"Whoever, being an officer, agent, or employee of the United States,
or of any State or Territory, or whoever, whether a person, association,
firm, or corporation, knowingly makes any false statement, false
representation, or false report as to the character, quality, quantity, or
cost of the material used or to be used, or the quantity or quality of the
work performed or to be performed, or the cost thereof in connection
with the submission of plans, maps, specifications, contracts, or costs of
construction on any highway or related project submitted for approval to
the Secretary of Transportation; or
Whoever knowingly makes any false statement, false representation,
false report or false claim with respect to the character, quality, quantity,
or cost of any work performed or to be performed, or materials furnished
or to be furnished, in connection with the construction of any highway or
related project approved by the Secretary of Transportation; or
Whoever knowingly makes any false statement or false
representation as to material fact in any statement, certificate, or report
submitted pursuant to provisions of the Federal -aid Roads Act approved
July 1, 1916, (39 Stat.'355), as amended and supplemented;
Shall be fined not more that $10,000 or imprisoned not more than 5
years or both."
X. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL
WATEWPOLLUTION CONTROL ACT
(Applicable to all Federal -aid construction contracts and to all related
subcontracts of $100,000 or more.)
By submission of this bid or the execution of this Agreement, or
subcontract, as appropriate, the bidder, Federal -aid construction
contractor, or subcontractor, as appropriate, will be deemed to have
stipulated as follows:
1. That any facility that is or will be utilized in the performance of this
Agreement, unless such contract is exempt under the Clean Air Act, as
amended (42 U.S.C. 1857 at sec., as amended by Pub.L. 91 -604), and
under the Federal Water Pollution Control Act, as amended (33 U.S.C.
1251 e( egg., as amended by Pub.L. 92 -500), Executive Order 11738,
and regulations in implementation thereof (40 CFR 15) is not listed, on
the date of contract award, on the U.S. Environmental Protection
Agency (EPA) List of Violating Facilities pursuant to 40 CFR 15.20.
2. That the firm agrees to comply and remain in compliance with all the
requirements of Section 114 of the Clean Air Act and Section 308 of the
Federal Water Pollution Control Act and all regulations and guidelines
listed thereunder.
3. That the firm shall promptly notify the SHA of the receipt of any
communication from the Director, Office of Federal Activities, EPA,
indicating that a facility that is or will be utilized for the contract is under
consideration to be listed on the EPA List of Violating Facilities.
4. That the firm agrees to include or cause to be included the
requirements of paragraph 1 through 4 of this Section X in every
nonexempt subcontract, and further agrees to take such action as the
government may direct as a means of enforcing such requirements.
XI. CERTIFICATION REGARDING DEBARMENT, SUSPENSION,
INELIGIBILITY AND VOLUNTARY EXCLUSION
1. Instructions for Certification - Primary Covered Transactions:
(Applicable to all Federal -aid contracts - 49 CFR 29)
a. By signing and submitting this proposal, the prospective
primary participant is providing the certification set out below.
b. The inability of a person to provide the certification set out
below will not necessarily result in denial of participation in this covered
transaction. The prospective participant shall submit an explanation of
why it cannot provide the certification set out below. The certification or
explanation will be considered in connection with the department or
agency's determination whether to enter into this transaction. However,
failure of the prospective primary participant to furnish a certification or
an explanation shall disqualify such a person from participation in this
transaction.
c. The certification in this clause is a material representation of
fact upon which reliance was placed when the department or agency
determined to enter into this transaction. If it is later determined that the
prospective primary participant knowingly rendered an erroneous
certification, in addition to other remedies available to the Federal
Government, the department or agency may terminate this transaction
for cause of default.
d. The prospective primary participant shall provide immediate
written notice to the department or. agency to whom this proposal is
submitted if any time the prospective primary participant learns that its
certification was erroneous when submitted or has become erroneous
by reason of changed circumstances.
e. The terms "covered transaction," "debarred," "suspended,"
"ineligible," "lower tier covered transaction," "participant," "person,"
"primary covered transaction," "principal," "proposal," and "voluntarily
excluded," as used in this clause, have the meanings set out in the
Definitions and Coverage sections of rules implementing Executive
Order 12549. You may contact the department or agency to which this
proposal is submitted for assistance in obtaining a copy of those
regulations.
I. The prospective primary participant agrees by submitting this
proposal that, should the proposed covered transaction be entered into,
it shall not knowingly enter into any lower tier covered transaction with a
person who is debarred, suspended, declared ineligible, or voluntarily
excluded from participation in this covered transaction, unless
authorized by the department or agency entering into this transaction.
g. The prospective primary participant further agrees by
submitting this proposal that it will include the clause titled "Certification
Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion -
Lower Tier Covered Transaction," provided by the department or agency
entering into this covered transaction, without modification, in all lower
tier covered transactions and in all solicitations for lower tier covered
transactions.
h. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that is not debarred, suspended, ineligible, or voluntarily
excluded from the covered transaction, unless it knows that the
certification is erroneous. A participant may decide the method and
frequency by which it determines the eligibility of its principals. Each
participant may, but is not required to, check the non - procurement
portion of the "Lists of Parties Excluded From Federal Procurement or
Non - procurement Programs" (Non - procurement List) which is compiled
by the General Services Administration.
I. Nothing contained in the foregoing shall be construed to require
establishment of a system of records in order to render in good faith the
certification required by this clause. The knowledge and information of
participant is not required to exceed that which is normally possessed by
a prudent person in the ordinary course of business dealings.
j. Except for transactions authorized under paragraph f of these
instructions, if a participant in a covered transaction knowingly enters
into a lower tier covered transaction with a person who is suspended,
debarred, ineligible, or voluntarily excluded from participation in this
transaction, in addition to other remedies available to the Federal
Government, the department or agency may terminate this transaction
for cause or default.
Certification Regarding Debarment, Suspension, Ineligibility and
Voluntary Exclusion— Primary Covered Transactions
1. The prospective primary participant certifies to the best of its
knowledge and belief, that it and its principals:
a. Are not presently debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded from covered
transactions by any Federal department or agency;
b. Have not within a 3 -year period preceding this proposal been
convicted of or had a civil judgment rendered against them for
commission of fraud or a criminal offense in connection with obtaining,
attempting to obtain, or performing a public (Federal, State or local)
transaction or contract under a public transaction; violation of Federal or
State antitrust statutes or commission of embezzlement, theft, forgery,
bribery, falsification or destruction of records, making false statements,
or receiving stolen property;
c. Are not presently indicted for or otherwise criminally or civilly
charged by a governmental entity (Federal, State or local) with
commission of any of the offenses enumerated in paragraph lb of this
certification; and
d. Have not within a 3 -year period preceding this
application /proposal had one or more public transactions (Federal, State
or local) terminated for cause or default.
2. Where the prospective primary participant is unable to certify to
any of the statements in this certification, such prospective participant
shall attach an explanation to this proposal.
2. Instructions for Certification - Lower Tier Covered Transac-
tions:
(Applicable to all subcontracts, purchase orders and other lower tier
transactions of $25,000 or more - 49 CFR 29)
a. By signing and submitting this proposal, the prospective lower
tier is providing the certification set out below.
b. The certification in this clause is a material representation of
fact upon which reliance was placed when this transaction was entered
into. It it is later determined that the prospective lower tier participant
knowingly rendered an erroneous certification, in addition to other
remedies available to the Federal Government, the department, or
agency with which this transaction originated may pursue available
remedies, including suspension and/or debarment.
c. The prospective lower tier participant shall provide immediate
written notice to the person to which this proposal is submitted 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," "primary covered transaction," "participant," "person,"
"principal," "proposal," and "voluntarily excluded," as used in this clause,
have the meanings set out in the Definitions and Coverage sections of
rules implementing Executive Order 12549. You may contact the person
to which this proposal is submitted for assistance in obtaining a copy of
those regulations.
e. The prospective lower tier participant agrees by submitting this
proposal that, should the proposed covered transaction be entered into,
it shall not knowingly enter into any lower tier covered transaction with a
person who is debarred, suspended, declared ineligible, or voluntarily
excluded from participation in this covered transaction, unless
authorized by the department or agency with which this transaction
originated.
I. The prospective lower tier participant further agrees by
submitting this proposal that it will include this clause titled "Certification
Regarding.Debarment, Suspension, Ineligibility and Voluntary Exclusion -
Lower Tier Covered Transaction," without modification, in all lower tier
covered transactions and in all solicitations for lower tier covered
transactions.
g. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that is not debarred, suspended, ineligible, or voluntarily
excluded from the covered transaction, unless it knows that the
certification is erroneous. A participant may.decide the method and
frequency by which it determines the eligibility of its principals. Each
participant may, but is not required to, check the Non - procurement List.
h. Nothing contained in the foregoing shall be construed to
require establishment of a system of records in order to render in good
faith the certification required by this clause. The knowledge and
information of participant is not required to exceed that which is normally
possessed by a prudent person in the ordinary course of business
dealings.
I. Except for transactions authorized under paragraph a of these
instructions, if a participant in a covered transaction knowingly enters
into a lower tier covered transaction with a person who is suspended,
debarred, Ineligible, or voluntarily excluded from participation in this
transaction, in addition to other remedies available to the Federal
Government, the department or agency with which this transaction
originated may pursue available, remedies, including suspension and/or
debarment.
Certification Regarding Debarment, Suspension, Ineligibility and
Voluntary Exclusion —Lower Tier Covered Transactions:
1. The prospective lower tier participant certifies, by submission of
this proposal, that neither it nor its principals is presently debarred,
suspended, proposed for debarment, declared ineligible, or voluntarily
excluded from participation in this transaction by any Federal
department or agency.
2. Where the prospective lower tier participant is unable to certify to
any of the statements in this certification, such prospective participant
shall attach an explanation to this proposal.
XII. CERTIFICATION REGARDING USE OF CONTRACT FUNDS OR
LOBBYING
(Applicable to all Federal -aid construction contracts and to all related
subcontracts which exceed $100,000 - 49 CFR 20)
1. The prospective participant certifies, by signing and submitting this
bid or proposal, to the best of his or her knowledge and belief, that:
a. No Federal appropriated funds have been paid or will be paid,
by or on behalf of the undersigned, to any person for influencing or
attempting to influence an officer or employee of any Federal agency, a
Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with the awarding of
any Federal contract, the making of any Federal grant, the making of
any Federal loan, the entering into of any cooperative agreement, and
the extension, continuation, renewal, amendment, or modification of any
Federal contract, grant, loan, or cooperative agreement.
b. If any funds other than Federal appropriated funds have been
paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any Federal agency, a Member of
Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with this Federal contract, grant,
loan, or cooperative agreement, the undersigned shall complete and
submit Standard Form -LLL, "Disclosure Form to Report Lobbying," in
accordance with its instructions.
2 This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into.
1. Submission of this certification is a prerequisite for making or entering
into this transaction imposed by 31 U.S.C. 1352. Any person who fails to
file the required certification shall be subject to a civil penalty of not less
than $10,000 and not more than $100,000 for each such failure.
2. The prospective participant also agrees by submitting his or her bid or
proposal that he or she shall require that the language of this
certification be included in all lower tier subcontracts, which exceed
$100,000 and that all such recipients shall certify and disclose
accordingly
1. EXHIBIT J — FEDERAL REQUIREMENTS
Federal laws and regulations that may be applicable to the Work include:
Uniform Administrative Requirements for Agreements and Cooperative Agreements to
State and Local Governments (Common Rule)
The "Uniform Administrative Requirements for Agreements and Cooperative
Agreements to State and Local Governments (Common Rule), at 49 Code of Federal
Regulations, Part 18, except to the extent that other applicable federal .requirements
(including the provisions of 23 CFR Parts 172 or 633 or 635) are more specific than
provisions of Part 18 and therefore supersede such Part 18 provisions. The
requirements of 49 CFR 18 include, without limitation:
Executive Order 11246
Executive Order 11246 of September 24, 1965 entitled "Equal Employment
Opportunity," as amended by Executive Order 11375 of October 13, 1967 and as
supplemented in Department of Labor regulations (41 CFR Chapter 60) (All construction
contracts awarded in excess of $10,000 by the Local Agencys and their contractors or
sub -the Local Agencys).
: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 sub -the Local Agencys when required by Federal Agreement
program legislation. This act requires that all laborers and mechanics employed by
contractors or sub - contractors to work on construction projects financed by federal
assistance must be paid wages not less than those established for the locality of the
project by the Secretary of Labor).
Contract Work Hours and Safety Standards Act
Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C.
327 -330) as supplemented by Department of Labor regulations (29 CFR Part 5).
(Construction contracts awarded by the Local Agencys and sub -the Local Agencys in
excess of $2,000, and in excess of $2,500 for other contracts which involve the
employment of mechanics or laborers).
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.
Haich 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 sea. 42 USC 2000d, 29 USC 794, and implementing regulation, 45
C.F.R. Part 80 et. seg. 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 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
sea.).
Age Discrimination Act of 1975
The Age Discrimination Act of 1975, 42 U.S.C. Sections 6101 et. seg. 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:
S. Nondiscrimination Provisions:
In compliance with Title VI of the Civil Rights Act of 1964 and with Section 162(a) of the
Federal Aid Highway Act of 1973, the Contractor, for itself, its assignees and
successors in interest, agree as follows:
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.
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.
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.
Information and Reports
The Contractor will provide all information and reports required by the Regulations, or orders
and instructions issued pursuant thereto and will permit access to its books, records,
accounts, other sources of information and its facilities as may be determined by the State or
the FHWA to be pertinent to ascertain compliance with such Regulations, orders and
instructions. Where any information required of the Contractor is in the exclusive possession
of another who fails or refuses to furnish this information, the Contractor shall so certify to the
State, or the FHWA as appropriate and shall set forth what efforts have been made to obtain
the information..
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 paragraphs A through F in every
subcontract, including procurement of materials and leases of equipment, unless
exempt by the Regulations, orders, or instructions issued pursuant thereto. The
Contractor will take such action with respect to any subcontract or procurement as the
State or the FHWA may direct as a means of enforcing such provisions including
sanctions for noncompliance; provided, however, that, in the event the Contractor
becomes involved in, or is threatened with, litigation with a Subcontractor or supplier as
a result of such direction, the Contractor may request the State to enter into such
litigation to protect the interest of the State and in addition, the Contractor may request
the FHWA to enter into such litigation to protect the interests of the United States.
SUPPLEMENTAL FEDERAL PROVISIONS
Supplemental Provisions for Contracts,. Grants, and Purchase Orders for Federal
Funds received pursuant to the Federal Funding Accountability and Transparency
Act (FFATA) of 2006 and 2008. Amendments As of October 1, 2010
The contract, grant, or purchase order to which these Supplemental Provisions are
attached has been funded, in whole or in part, with 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 A.Grants,
1.1.2. Contracts,
1.1.3. Cooperative agreements (which does not include cooperative research and
development agreements (CRDA) pursuant to the Federal Technology Transfer Act
of 1986, as amended (15 U.S.C. 3710a)),
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, or
1.1.10. Other financial assistance transactions that authorize the non - Federal Entities'
expenditure of Federal Funds.
Award does not include:
1.1.11. Technical assistance, which provides services in lieu of money;
1.1.12. A transfer of title to Federally -owned property provided in lieu of money, even if the
award is called a grant;
1.1.13. Any classified award; or
1.1.14. 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 (Pub. L.
111 -5)
1.2. "Central Contractor Registration (CCR)" means the Federal repository into which an Entity
must provide information required for the conduct of business as a recipient.
1.3. "Data Universal Numbering System (DUNS) Number" means the nine -digit number
established and assigned by Dun and Bradstreet, Inc. to uniquely identify business entities.
1.4. "Entity" means all of the following as defined at 2 CFR part 25, subpart C;
1.4.1. A governmental organization, which is a State, local government, or Indian Tribe,
1.4.2.A foreign public entity,
1.4.3.A domestic or foreign non - profit organization,
1.4.4.A domestic or foreign for - profit organization, and
1A.5. A Federal Agency, but only a subrecipient under an award or subaward to a non -
Federal entity.
1.5. "Subaward" means a legal instrument to provide support for the performance of any portion of
the substantive project or program funded by federal funds to a Prime Recipient that a Prime
Recipient awards to a Subrecipient.
1.6. "Contract" means the contract to which these Supplemental Provisions are attached and
includes all award types in §1.1.
1.7. "Contractor" means the party or parties to the Contract other than the Prime Recipient and
includes a grantee, subgrantee, Subrecipient, or.a borrower. For purposes of FFATA reporting,
Contractor is either a Subrecipient or a Vendor under this Contract.
1.8. " FFATA" means the Federal Funding Accountability and Transparency Act of 2006 (Public
Law 109 -282). Also referred to as the "Transparency Act."
1.9. "Prime Recipient" means a Colorado State Agency or Institution of Higher Education that
receives federal funds directly from a Federal Agency in the form of an award in §1.1.
1.10. "Subrecipient" means 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.
1.11. "Supplemental Provisions" means these Supplemental Provisions for Contracts, Grants, and
Purchase Orders using Federal funds except those funds provided under the American
Recovery and Reinvestment Act of 2009, as may be revised pursuant to ongoing guidance
from the relevant Federal or State of Colorado Agency or Institution of Higher Education.
1.12. "Total Compensation" means the cash and noncash dollar value earned by the executive
during the Prime Recipient's or Subrecipient's preceding fiscal year and includes the following
1.12.1. Salary and bonus,
1.12.2. Awards of stock, stock options, and stock appreciation rights. This amount shall
equal 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,
1.12.3. Earnings for services under non - equity incentive plans. This does not include
group life, health, hospitalization or medical reimbursement plans that do not
discriminate in favor of executives and are available generally to all salaried
employees,
1.12.4. Change in pension value, this amount shall equal the change in present value of
defined benefit and actuarial pension plans,
1.12.5. Above - market earnings on deferred compensation which is not tax- qualified, and
1.12.6. 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.
"Vendor." means a dealer, distributor, merchant or other seller providing goods or services
required for a project or program funded by Federal funds. A Vendor is not subject to all the
terms and conditions of the Federal award, and all program compliance requirements do not
pass through to a Vendor.
2. Compliance. Contractor shall comply with all applicable provisions of the Transparence 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. Central Contractor Registration (CCR) and Data Universal Numbering System (DUNS)
Requirements.
3.1. CCR - Contractor shall maintain the currency of its information in the CCR until the
Contractor submits the final financial report required under this award or receives final
payment, whichever is later. Contractor shall review and update the CCR 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 its information in Dun & Bradstreet at least annually after the initial registration,
and more frequently if required by changes in its information.
4. Total Compensation — Contractor shall include total compensation in CCR for each of its five most
highly compensated executives for the preceding completed fiscal year if:
4.1. the total Federal funding authorized to date under this award is $25,000 or more, and
4.2. in the preceding fiscal year, Contractor received:
4.2.1. 80 percent or more of its annual gross revenues from Federal procurement
contracts and subcontracts and Federal financial assistance 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 Federal financial assistance subject to the
Transparency Act, and
4.3. the public does not have access to information about the compensation of the
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 section 6104 of the Internal
Revenue Code of 1986.
5. Reporting. Contractor shall include data elements in its CCR and report to its Prime Recipient Entity
the data elements required in §7 if Contractor is a Subrecipient for the award types of grants,
contracts, and cooperative agreements (which does not include cooperative research and
development agreements (CRDA) pursuant to the Federal Technology Transfer Act of 1986, as
amended (15 U.S.C. 3710a). No direct payment shall be made to Contractor for providing any
reports required under these Supplemental Provisions, as the cost of producing such reports shall be
deemed included in the Contract price. The reporting requirements in §7 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. The State may provide written notice to Contractor of
any such change in accordance with §2 above, but such notice shall not be a condition precedent to
Contractor's duty to comply with revised OMB reporting requirements. The Colorado Office of the
State Controller shall provide summaries of revised OMB reporting requirements at
hftp://www.colorado.gov/dpa/dfp/sco/FFATA.htm
6. Effective Date and Dollar Threshold for Reporting — The reporting requirements in §7 apply for
new Federal grants, contracts, and cooperative agreements (except CRDA) 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
continues to be subject to the reporting requirements.
7. Subrecipient Reporting Requirements. If Contractor is a Subrecipient, Contractor shall report as
set forth below.
7.1 To CCR. A Subrecipient shall register in CCR and report the following data elements in CCR:
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 Officers' Names of top 5 highly compensated officials if the criteria
in §4 are met.
7.1.6 Subrecipient Officers' Total Compensation of top 5 highly compensated officials if
criteria in §4 met
7.2 To Prime Contractor. A Subrecipient shall report to its Prime Recipient, upon the effective
date of the contract, the following data elements:
2.7.2.1 Primary Place of Performance Information, including: Street Address, City, State,
Country, Zip code + 4, and Congressional District.
8. Vendor — There are no Transparency Act reporting requirements for vendors.
9. Event 61 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 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.