TC Res. No. 2005-48 AUTHORIZING A CONTRACT WITH THE COLORADOTOWN OF AVON, COLORADO
RESOLUTION NO. 05-48
Series of 2005
A RESOLUTION AUTHORIZING A CONTRACT WITH THE COLORADO
DEPARTMENT OF TRANSPORTATION RELATED TO PROJECT STE M058-002,
AVON STREETSCAPING, SUB=15245 FOR STREETSCAPING IN THE TOWN OF
AVON, EAGLE COUNTY, COLORADO
WHEREAS, Avon Town Council has heretofore authorized the construction of Streetscape
Improvements within the Town of Avon including bike, pedestrian, and transit improvements
along Eaglebend Drive/Stonebridge Road; and
WHEREAS, the Colorado Department of Transportation has made federal-aid funds available
for the project based on matching ratio of 80% federal-aid funds to 20% Town of Avon funds
with total eligible project costs up to $186,822.50 pursuant to contract;
NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, COLORADO, AS FOLLOWS:
1. Attached Contract (Exhibit A) with the Colorado Department of Transportation to
provide Federal-Aid Funds for STE M058-002 for construction of streetscape
improvements in the Town of Avon is hereby approved and authorized pursuant
to Sections 29-1-203, 43-1-110, 43-1-116, 43-2-101(4)(c) and 43-2-144, C.R.S.,
as amended.
2. Funding of the Town's share of the project costs is specifically authorized in
connection with the Contract and the required funds have been appropriated in the
Town Budget.
PASSED AND ADOPTED AT A REGULAR MEETING OF THE TOWN COUNCIL OF
THE TOWN OF AVON, COLORADO, ON THE 25TH DAY OF OCTOBER, 2005.
TOWN COUNCIL
OF AVON, OLORADO
®1% ®F qyo~ C
j • • Ronald C. Wolfe, Mayor
r S E A L
ATTEST:
COCOAA40
Pa M Kenney
To erk
y1
Me mo
To: Honorable Mayor and Town Council
Thru: Larry Brooks, Town Manager
From: Norm Wood, Town Engineer
Jeff Schneider, Engineer II
Date: October 18, 2005
Re: Resolution 05-48, A Resolution Authorizing a Contract with the
Colorado Department of Transportation Related to Project Site M058-
002, Avon Streetscaping, SUB=15245 for Streetscaping in the Town of
Avon, Eagle County, Colorado
Summary:
The Colorado Department of Transportation has approved the Town of Avon's application for
Enhancement Grant Funds pursuant to the provisions contained in the attached Contract. In
general this contract stipulates the amount of the grant and conditions the Town must comply
with to be eligible to receive the funds and how they may be used. The Contract designates
the funds for the Eaglebend Drive/Stonebridge Road Streetscape Improvement Project
involving pedestrian, bicycle, and transit improvements. Funding provisions are based on:
Federal Participating Funds (80%) $ 149,458.00
Local Agency Matching Funds (20%) 37,364.50
Total Project Funds (minimum) $ 186,822.50
Other provisions in the Contract include State and Federal Regulations that must be.complied
with for selection of consultants, monitoring construction quality and awarding construction
contract, -and implementation of the construction contract. With few exceptions, these
provisions -should have very little impact on the project as current town practices generally
follow these requirements.
Attached Resolution No. 05-48, Series of 2005, authorizes the Contract with the Colorado
Department of transportation related to Project STE M058-002 for streetscaping in the Town
of Avon and is recommended for approval.
Note: This is an Intergovernmental Agreement and as such requires a two thirds
majority approval by the Council.
hEngineering\CIREaglebend Streetscape\1.3 Funding\1.3.3 Grants\CDOT contract resolution council memo.doc
}
Recommendations:
Approve Resolution No. 05-48, Series of 1999, A Resolution Authorizing a Contract with the
Colorado Department of Transportation Related to Project STE M058-002, Avon
Streetscaping, .SUB=15245 for Streetscape Improvements in the Town of Avbri; Eagle
County, Colorado.
Attachments
Exhibit A: Resolution No. 05-48
Town Manager Comments:
xl~7
1:\Engineering\CIP\Eag1ebend Streeiscape\1.3 Funding\1.33 Grants\CDOT Contract Resolution Council Memo.Doc 2
TOWN OF AVON
RESOLUTION NO. 05 - 48
Series of 2005
A RESOLUTION AUTHORIZING A CONTRACT WITH THE COLORADO
DEPARTMENT OF TRANSPORTATION RELATED TO PROJECT STE M058-002,
AVON STREETSCAPING, SUB=15245 FOR STREETSCAPING IN THE TOWN OF
AVON, EAGLE COUNTY, COLORADO.
WHEREAS, Avon Town Council has heretofore authorized the construction of Streetscape
Improvements within the Town of Avon including bike, pedestrian, and transit improvements
along Eaglebend Drive/Stonebridge Road; and
WHEREAS, the Colorado Department of Transportation has made federal-aid funds available
for the project based on matching ratio of 80% federal-aid funds to 20% Town of Avon funds
with total eligible project costs up to $186,822.50 pursuant to contract;
NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, COLORADO, AS FOLLOWS:
1. Attached Contract (Exhibit A) with the Colorado Department of Transportation to
provide Federal-Aid Funds for STE M058-002 for construction of streetscape
improvements in the Town of Avon is hereby approved and authorized pursuant
to Sections 29-1-203, 43-1-110, 43-1-116, 43-2-101(4)(c) and 43-2-144, C.R.S.,
as amended.
2. Funding of the Town's share of the project costs is specifically authorized in
connection with the Contract and the required funds have been appropriated in the
Town Budget.
1AEngineering\CIP\Eag1ebend Streetscape\1.3 Funding\1.3.3 Grants\Resolution CDOT Contract.Doc
PASSED AND ADOPTED, AT A REGULAR MEETING OF THE TOWN COUNCIL. OF
THE TOWN OF AVON, COLORADO, ON THE 25TH DAY OF OCTOBER, 2005.
TOWN COUNCIL
TOWN OF AVON, COLORADO
ATTEST:
Patty McKenney
Town Clerk
Ronald C. Wolfe, Mayor
1AEngineering\C1P\Eag1ebend Streetscape\1.3 Funding\1.3.3 Grants\Resolution CDOT Contract.Doc
le l T 'ft
(FMLAWRK)
PROJECT STE M058-002, (15245)
REGION 3 (ML)
Rev 09/03
06HA300021
CMS ID 06-027,:
CONTRACT
THIS CONTRACT made this day of
20_, by and between the: State of
Colorado for the use and benefit of the Colorado Department of Transportation hereinafter referred to
as the State and Town of Avon, P.O. Box 975, Avon, Colorado 81620, FEIN: 840771088, hereinafter,
referred to as the "Contractor" or the "Local Agency."
RECITALS
1. Authority exists in the law, and funds have been budgeted, appropriated and otherwise made
available and a sufficient uncommitted balance thereof remains available for payment of project and
Local Agency costs in Fund Number 400, Appropriation Code 010, Organization' Number 9991,
Program 2000, Function 3301, Object 2312 1P, Phase C, Reporting Category'3120, Contract
Encumbrance Number 15245, (Contract Encumbrance Amount: $186,822.50).
2. Required approval, clearance and coordination has been accomplished from and with appropriate
agencies.
3. Pursuant to Title I, Subtitle A, Section 1108 of the Transportation Equity Act for the 21 ' Century of
1998 (TEA-21) and to applicable provisions of Title 23 of the United States Code and implementing
regulations at Title 23 of the Code of Federal Regulations, as may be amended, (collectively referred to
hereinafter as the "Federal Provisions"), certain federal funds have been-and will in the future be
allocated for transportation projects requested by Local Agencies and eligible under the Surface
Transportation Improvement Program that has been proposed by the State.and approved by the Federal
Highway Administration ("FHWA"), hereinafter referred to as the "Program."
4. Pursuant to § 43-1-223, C.R.S. and to applicable, portions of the Federal Provisions, the State is
responsible for the general administration and supervision of performance of projects in the Program,
including the administration of federal funds for a Program project performed by a Local Agency under
a contract with the State.
5. The Local Agency has requested that a certain local transportation project be funded as part of the
Program, and by the date of execution of this contract, the Local Agency and/or the State has
completed and submitted a preliminary version of CDOT form #463 describing the general nature of
the Work. The Local Agency understands that, before the Work begins, form #463 may be revised as a
result of design changes made by CDOT, in coordination with the Local Agency, in its internal review
process. The Local Agency desires to perform the Work described in form #463, as it may be revised.
6. Federal-aid funds have been made available for project STE M058-002 (15245), which shall consist
Page 1 of 17
of the construction of a trail and associated road improvements for a continuation of the
Bicycle/Pedestrian Trail located within the Town of Avon from the transition of Hurd Lane/Eaglebend
Drive on the west end to Stonebridge Drive to US 6, referred to as the "Project" or the "Work." Such
Work will be performed in Avon, Colorado, specifically described in Exhibit A/Form #463.
7. The matching ratio for this federal aid project is 80% federal-aid funds to 20% Local Agency funds,
it being understood that such ratio applies only to such costs as are eligible for federal participation, it
being further understood that all, non-participating costs shall be borne by the Local Agency at 100%.
8. The Local Agency desires to comply with the Federal Provisions and other applicable requirements,
including the State's general, administration and supervision of the Project through this contract, in
order to obtain federal funds.
9. The Local Agency has estimated the total cost of the Work and is prepared to provide its match
share of the cost, as evidenced by an appropriate ordinance/resolution or other authority letter which
expressly authorizes the Local Agency the authority to enter into this contract and to expend its match
share of the Work. A copy of such ordinance/resolution or authority letter is attached hereto as Exhibit
B.
10. This contract is executed under the authority of 29-1-203, 43=1-110; 43-1-116,43-2-101(4)(c)
and 43-2-14.4; C.R.S. and Exhibit B.
11. The Local Agency is adequately staffed and suitably equipped to undertake and satisfactorily
complete some or all of the Work.
12. The Local Agency can more advantageously perform the Work.
THE PARTIES NOW AGREE THAT:
Section 1. Scope of Work
The Project or the Work under this contract shall consist of the construction of a trail and
associated road improvements for a continuation of the Bicycle/Pedestrian Trail located within the
Town of Avon from the transition of Hurd Lane/Eaglebend Drive on the west end to Stonebridge Drive
to US 6, in Avon; Colorado, as more specifically described in, Exhibit A/Form #463, hereinafter
referred to as Exhibit A, which is attached hereto and incorporated herein by this reference.
Section 2. Order of Precedence
Page 2 of 17
In the event of conflicts or inconsistencies between this contract and its exhibits, such conflicts
or inconsistencies shall be resolved by reference to the documents in the following order of priority:
1. Special Provisions contained in section 29 of this contract
2. This contract
3. Exhibit A (Scope of Work)
4. Exhibit C (Funding Provisions)
5. Exhibit D (Certification for Federal-Aid Contracts)
6. Exhibit E (DBE Requirements)
7. Exhibit F (Contract Modification Tools)
8. Other Exhibits in descending order of their attachment.
Section 3. Term
This contract shall be effective upon approval of the State Controller or designee, or on the
date made, whichever is later. The term of this contract shall continue through the completion and
final acceptance of'the Project by the State, FHWA and the Local Agency.
Section 4. Project Funding Provisions
The Local Agency has estimated the total cost of the Work and is prepared to provide its match
share of the cost, as evidenced by an appropriate ordinance/resolution or other authority letter which
expressly authorizes the Local Agency the authority to enter into this contract and to expend its match
share of the Work. A copy of such ordinance/resolution or authority letter is attached hereto as Exhibit
B.
The funding provisions for the Project are attached hereto as Exhibit C. The Local Agency
shall provide its share of the funds for the Project as outlined in Exhibit C.
Section 5. Project Payment Provisions
A. The State will reimburse the Local Agency for the federal-aid share of the project charges
after the State's review and approval of such charges, subject to the terms and conditions of this
contract. However, any charges incurred by the Local Agency prior to the date of FHWA
authorization for the Project and prior to the date this contract is executed by the State Controller or
his designee will not be reimbursed absent specific FHWA and State Controller approval thereof.
B. The State will reimburse the Local Agency's reasonable, allocable, allowable costs of
performance of the Work, not exceeding the maximum total amount described in Exhibit C. The
applicable principles described in 49 C.F.R. 18 Subpart C and 49 C.F.R. 18.22 shall govern the
allowability and allocability of costs under this contract. The Local Agency shall comply with all
such principles. To be eligible for reimbursement, costs by the Local Agency shall be:
1. in accordance with the provisions of Exhibit C and with the terms and conditions of
this contract;
2. necessary for the accomplishment of the Work;
Page 3 of 17
3. reasonable in the, amount for the goods and services provided;
4. actual net cost to the Local Agency (i.e. the price paid minus any refunds, rebates, or
other items of value received by the Local Agency that have the effect of reducing
the. cost actually incurred);
5. incurred for Work performed after the effective date of this contract;
6. satisfactorily documented.
C. The Local Agency shall establish and maintain' a proper accounting system in accordance
with generally accepted accounting standards (a separate set of accounts, or as-a separate and
integral part ,of its current,accounting scheme) to assure that project funds are expended and costs
accounted for in a manner consistent with this contract and project objectives.
1. All allowable costs charged to the project, including any approved -services
contributed by the Local Agency or others, shall be supported by properly executed
payrolls, time records,-invoices, contracts or vouchers evidencing in detail the nature
of the charges.
2. Any check or order drawn up by the Local Agency, including any item which is or,
will be chargeable against the project account shall be drawn-up only in accordance
with a properly signed voucher then on file in the office of the Local Agency, which
will detail the purpose for which said check or order is drawn, All checks, payrolls,
invoices; contracts, vouchers, orders or other accounting documents shall be clearly
identified; readily accessible, and'to the extent feasible, kept separate and apart from
all other such documents.
D. Upon execution of this contract, the State is authorized, in its discretion, to perform any
necessary administrative support services pursuant to this contract. These services may be
performed prior to and in preparation for any conditions or requirements of this contract, including
prior FHWA approval-of Work. The Local Agency understands and agrees that the. State may
perform such services, and that payments for such services shall be at no cost to the State but shall
be as provided for in -Exhibit C. At the request of -the Local Agency, the State shall also provide
other assistance pursuant to this contract as may be agreed in writing. In the event that federal-aid
project funds remain available for payment, the Local Agency understands and agrees the costs of
any-such services and assistance shall be paid to the State from project funds at the applicable rate.
However, in the event that such funding is not made available or is withdrawn for this contract, or if
the Local Agency terminates this contract prior to project approval or completion for any reason,
then all, actual incurred costs of such services and assistance provided by the State shall be the sole
expense of the Local Agency.
E. If the Local Agency is to be billed for CDOT incurred costs, the billing procedure shall be as
follows:
Upon receipt of each bill from the State, the Local Agency will remit to the State the
Page 4 of 17
amount billed no later than 60 days after receipt of each bill. Should the Local'
Agency fail to pay moneys due the State within 60 days of demand or within such
other period as may be agreed between the parties hereto, the Local Agency agrees
that, at the request of the State, the State Treasurer may withhold an equal amount
from future apportionment due the Local Agency from the Highway Users Tax Fund
and to pay such funds directly to the State: Interim funds, until the State is
reimbursed, shall be payable from-the State Highway Supplementary Fund (400).
2. If the Local Agency fails to make timely payment to the State as required by this
section (within 60 days after the date of each bill), the Local Agency shall pay
interest to the State at a rate of one percent per month on the amount of the payment-
which was not made in a timely manner, until the billing is paid in full. The interest
shall accrue for the period from the required payment date to the date oft which
payment is made.
F. The Local Agency will prepare and submit to the State, no more'than monthly, charges for
costs incurred relative to the project. The Local Agency's invoices shall include a description of the
amounts of services performed, the dates of performance and :the amounts and description of
reimbursable expenses. The invoices will be prepared in accordance with the State's standard
policies, procedures and standardized billing format to be supplied by the'State.
G. To be eligible for payment, billings must be received within 60 days after the period for
which payment is being requested and final billings on this contract musf be received by the State
within 60 days after the end of the contract term.
L,- Payments pursuant to this contract shall be made as earned, in whole or in part, from
available funds, encumbered for the purchase of the described services. The liability
of the State, at any time, for such payments shall be limited to the amount remaining
of such encumbered funds.
2. In the event this contract is terminated, final payment to the Local Agency may be
withheld at the discretion of the State until completion of final audit.
3. Incorrect payments to the Local Agency due to omission, error, fraud or defalcation
shall be recovered from the Local Agency by deduction'from subsequent payment
under this contract or other contracts between the State and Local Agency,,or by the
State as a debt due to the State.
4. Any costs incurred by the Local Agency that are not allowable under 49 C.F.R. 18
shall be reimbursed by the Local Agency, or offset against current obligations due by
the State to the Local Agency, at the State's election.
Section & State and Local Agency Commitments
The Local Agency Contract-Administration Checklist in Exhibit G describes the Work to be
performed and assigns responsibility of that Work to'either the Local Agency or the State. The
"Responsible Party" referred to in this contract means the Responsible Party as identified in the
Page 5 of 17
Local Agency Contract Administration Checklist in Exhibit G.
A. Design [if applicable] .
L If the Work includes preliminary design or final design:(the "Construction Plans"), or
design, work sheets, or special provisions and estimates (collectively referred to as the "Plans"), the
responsible party shall comply with the following requirements, as applicable:
a. perform or provide the Plans, to the extent required by the nature of the
Work.
b. prepare final design (Construction Plans) in accord with the requirements of
the , latest edition . of the American Association of State Highway
Transportation Officials (AASHTO) manual. or other standard, such as the
Uniform Building Code, as approved by CDOT.
c. prepare special provisions and estimates in accord with the State's Roadway
and Bridge Design Manuals and Standard,Speci fi cations for Road and Bridge
Construct _ion'or Local Agency specifications if approved by; CDOT.
d. include details of any required detours in the Plans, in order to prevent any
interference of the construction work and to protect the traveling public.
e. stamp the Plans produced by a Colorado Registered Professional Engineer.
f. provide.final assembly of Plans and contract. documents.
g. be responsible for the Plans being accurate and complete.
h. make no further changes in the Plans following the award of the construction
contract except by agreement in writing between the parties. The Plans shall
be considered final when approved and accepted-by the parties hereto, and
when final they-shall be deemed incorporated herein.
2. If the Local Agency is, the responsible party:
a. The local agency shall comply with the requirements of the Americans
With Disabilities Act (ADA), and applicable federal regulations and
standards as, contained in the document "ADA Accessibility Requirements
in CDOT Transportation Projects".
b. It shall afford the State ample opportunity to review the Plans and make
any.changes iri the Plans that are directed by the State to comply with
FHWA requirements.
C. It may enter into a contract with a consultant to do all or any portion of the
Plans and/or of construction administration. Provided, however, that if
federal-aid funds are involved in the cost of such work to be done by a
consultant, that consultant contract (and the performance/provision of the
Plans under the contract) must comply with all applicable requirements of
23 CFR Part 172 and with any procedures implementing those
requirements as provided by the State, including those in Attachment #1
(Exhibit H) attached hereto. If the Local Agency does enter into a
contract with a consultant for the Work:
Page 6 of 17
(1) it shall submit a certification that procurement of any design
consultant contract complied with the requirements of 23 CFR 172.5(d) prior
to entering into contract. The State shall either approve or deny such
procurement. If denied, the Local Agency may not enter into the contract.
(2) it shall ensure that all changes in the consultant contract have prior
approval by the State and FHWA. Such changes in the contract shall be by
written supplement agreement. As soon as the contract with the consultant
has been awarded by the Local Agency, one copy, of the executed contract
shall be submitted to the State. Any amendments to such contract shall also
be submitted.
(3) it shall require that all consultant billings under that contract shall
comply with the State's standardized billing format. Examples of the billing
formats are available from the CDOT Agreements Office.
(4) it (or its consultant) shall use'the CDOT procedures described in
Attachment 1 [change] to administer that design consultant subcontract, to
comply with 23 CFR 172.5(b) and (d).
(5) it may expedite any CDOT approval of its procurement process
and/or consultant contract by submitting a letter to CDOT from the certifying
Local Agency's attorney/authorized representative certifying compliance
with Attachment 1 [change] and 23 CFR 172.5(b)and (d).
(6) it shall ensure that its consultant contract complies with the
requirements of 49 CFR 18.36(1) and contains the following language
verbatim:
(a) "The design work under this contract shall be compatible with
the requirements of the contract between the Local Agency and the
State (which is incorporated herein by this reference) for the
design/construction of the project. The State is an intended third
party beneficiary of this'contract for that purpose."
(b) "Upon advertisement of the project work for construction, the
consultant shall make available services as requested by the State to
assist the State in the evaluation of construction and the resolution of
construction problems that may arise during the construction of the
project."
(c) • "The consultant shall review the construction contractor's
shop drawings for conformance with the contract documents and
compliance-with the provisions of the State's publication, Standard
Specifications for Road and Bridge Construction, in connection with
this work-."
d. The State, in its discretion, will review construction plans, special provisions
and estimates and will cause the Local Agency to make changes therein that
the State determines are- necessary to assure -compliance with State and
FHWA requirements.
B. Construction [if applicable]
Page 7 of 17
If the Work includes construction, the responsible party shall perform the
construction in accordance with the approved design plans and/or administer the
construction all in accord with the Local Agency Contract Administration Checklist.
Such administration shall include project inspection and testing; approving sources
of materials; performing required plant and shop inspections; 'documentation of
contract payments, testing and inspection activities; preparing and approving pay
estimates; preparing, approving and securing the funding for contract modification
orders and minor contract revisions; processing contractor claims; construction
supervision; and meeting the Quality Control requirements of the FHWA/CDOT
Stewardship Agreement, as described in the Local Agency Contract Administration
Checklist.
2. The State shall have the authority to suspend the Work, wholly or in part, by giving
written notice thereof to the Local Agency, due to the failure of the Local Agency or
its contractor to correct project conditions which are unsafe for workers or for such
periods as the State may deem necessary due to unsuitable weather, or-for conditions
considered unsuitable for the prosecution of the Work, or for any other condition or
reason deemed•by the State to be in the public interest. ,
3. If the Local Agency is the responsible party.:
a. it shall appoint a qualified professional engineer, licensed in the State of
Colorado, as the Local Agency Project Engineer (LAPE), to perform that
administration. The LAPE shall administer the project in accordance with
this contract, the requirements of the construction contract and applicable
State procedures.
b.. if bids are to be let for the construction of the project, it-shall advertise the
call for bids upon approval by the State and award the construction
contract(s) to the low responsible bidder(s) upon approval by the State.
(1) in advertising and awarding the bid for the construction of a federal-
aid project, the Local Agency . shall comply with applicable
requirements of 23 USC § 112 and 23 CFR Parts 633 and 635 and
C.R.S. § 24-92-101 et seq. Those requirements include, without
limitation, that the Local Agency/contractor shall incorporate Form
1273 (Exhibit I) in its entirety verbatim into any subcontract(s) for
those services as terms and conditions therefore, as required by 23
CFR 633.102(e).
(2) the Local Agency has the option to accept or reject the proposal of
the apparent low bidder for work on which competitive bids have
_ been received. The Local Agency must declare the acceptance or
rejection within 3 working days after said bids are publicly opened.
(3) by indicating its concurrence in such award, the Local Agency, acting
by or through its duly authorized representatives, agrees to provide
additional funds, subject to their availability and appropriation for
Page 8 of 17
that purpose, if required to complete the Work under this project if no
additional federal-aid funds will be made available for the project.
This paragraph also applies to projects advertised and awarded by the
State.
C. If all or part of the construction work is to be accomplished by Local Agency
personnel (i.e. by force account), rather than by a competitive bidding
process, the Local Agency will ensure that all such force account work is
accomplished in accordance with the pertinent State specifications and
requirements with 23 CFR 635, Subpart B, Force Account Construction.
(l) Such work will normally be based upon estimated quantities and firm
unit prices agreed to between the Local Agency, the State and FHWA
in advance of the Work, as provided for in 23 CFR 635-.204(c). Such
agreed unit prices shall constitute a commitment as to the value of the
Work to be performed.
(2) An alternative to the above is that the Local Agency may agree.to
participate in the Work based on actual costs of labor, equipment
rental, materials supplies and supervision necessary to complete the
Work. Where actual costs are used, eligibility of cost items shall be
evaluated for compliance with 48 CFR Part 31.
(3) Rental-rates for publicly owned equipment will'be determined in.
accordance, with the State's-Standard Specifications for-Road and
Bridge Construction § 109.04.
(4) All force account work shall have prior approval of the State and/or
FHWA and shall not be initiated until the State has issued a written
notice to proceed.
D. State's obligations
L: The State will perform a final project inspection prior to project acceptance as a
Quality Control/Assurance, activity. When all Work has been satisfactorily
completed, the State will sign the FHWA Form 1212.
2. Notwithstanding any consents or approvals given by the State for the Plans; the State
will not be liable or responsible in any manner for the structural design., details or
construction of any major structures that are designed by or are the responsibility of
the Local Agency as identified in the Local Agency Contract Administration
Checklist, Exhibit G, within -the Work of this contract.
Section 7. ROW Acquisition and Relocation
Prior to this project being advertised for bids, the Responsible Party will certify in writing to
the State that all right of way has been acquired in accordance with the applicable State and federal
regulations, or that no additional right of way is required.
Any acquisition/relocation activities must comply with all federal and state statutes,
Page 9 of 17
regulations, CDOT policies and procedures, 49 CFR Part 24, the government wide Uniform Act
regulation, the FHWA Project Development Guide and CDOT's Right of Way Operations Manual.
Allocation of Responsibilities can be as follows:
• Federal participation in right of way acquisition (3111 charges), relocation (3109
charges) activities, if any, and right of way incidentals (expenses incidental to
acquisition/relocation of right of way -'3114 charges);
• Federal participation in -right of way, acquisition (3111 charges), relocation (3109
charges) but no participation in incidental expenses (3114 charges); -or
• No federal participation in right of way-acquisition (311 charges) and relocation
activities (3109 expenses).
Regardless of the option selected above, the State retains oversight responsibilities. The
Local Agency's and the State's responsibilities for each option is specifically set forth in CDOT's
Right of Way Operation Manual. The manual is located at
bttp://www.dot.state.co.us/DevelopPrgiects/DesignSupport.
Section 8. Utilities
If necessary, the Responsible Party will beresponsible for obtaining the proper clearance or
approval from any utility company which may become involved in this Project. Prior to this Project
being advertised for bids, the Responsible Party will certify, in writing to the State that all such
clearances have been obtained.
Section 9. Railroads
In the event the Project involves modification of a railroad company's facilities whereby the
Work is to be accomplished by railroad company,forces, the Responsible Parry shall make timely
application to the Public Utilities Commission requesting its order providing for the installation of
the proposed improvements and not proceed with that part of the Work withoutcompliance. The
Responsible Party shall also establish contact with the railroad company involved for the purpose of
complying with' applicable provisions of 23 CFR 646, subpart B, concerning federal-aid projects
involving railroad facilities, including:
1. Executing an agreement setting out what work is to'be accomplished and the
-location(s) thereof, and that the costs of the improvement'shall be eligible for federal
participation.
2. Obtaining the railroad's detailed estimate of the cost of the Work.
3. Establishing future maintenance responsibilities for the proposed installation.
4. Proscribing future use or dispositions of the proposed improvements in the'event"of
abandonment or elimination of a grade crossing-.
5. Establishing future repair and/or replacement responsibilities in the . event of
accidental destruction or damage to the installation. '
Page 10 of 17
Section 10. Environmental Obligations
The Local Agency shall perform all Work in accordance with the requirements of the current
federal and state environmental regulations including the National Environmental Policy Act of
1969 (NEPA) as applicable.
Section 11. Maintenance Obligations
The Local Agency will maintain and operate the improvements constructed under this
contract at its own cost and expense during their useful life, in a manner satisfactory to the State and
FHWA. The Local Agency will make proper provisions for such maintenance obligations each year.
Such maintenance and operations shall be conducted in accordance with all applicable statutes,
ordinances and regulations which define the Local Agency's obligations to maintain such
improvements. The State and FHWA will make periodic inspections of the project to verify that
such improvements are being adequately maintained.
Section 12. Federal Requirements
The Local Agency and/or their contractor shall at all times during the execution of this
contract strictly adhere to, and comply with, all applicable federal and state laws, and their
implementing regulations, as they currently exist and may hereafter be amended. The contractor
shall also require compliance with these statutes and regulations in subgrant agreements permitted
under this contract. A listing of certain federal and state laws that may be applicable are described
in Exhibit J.
Section 13. Record Keeping
The Local Agency shall maintain a complete file of all records, documents, communications,
and other written materials which pertain to the costs incurred under this contract. The Local
Agency shall maintain such records for a period of six (6) years after the date of termination of this
contract or final payment hereunder, whichever is later, or for such further period as may be
necessary to resolve any matters which may be pending. The Local Agency shall make such
materials available for inspection at all reasonable times and shall permit duly authorized agents and
employees of the State and FHWA to inspect the project and to inspect, review and audit the project
records.
Section 14. Termination Provisions
This contract may be terminated as follows:
A. Termination for Convenience. The State may terminate this contract at any time the
State determines that the purposes of the distribution of moneys under the contract would no longer
be served by completion of the project. It shall be grounds for the State to terminate this contract for
cause, if after a period of two (2) years from the date this contract is executed, the Local Agency
fails to substantially prosecute the work outlined in the contract. The State shall effect such
termination by giving written notice of termination to the Local Agency and specifying the effective
Page 1 l of 17
date thereof, at least twenty (20) days before the effective date of such termination.
B. Termination for Cause. If, through any cause, the Local Agency shall fail to fulfill, in a timely
and proper manner, its obligations under this contract, or if the Local Agency shall violate any of the
covenants, agreements, or stipulations of this contract, the State shall thereupon have the right to
terminate this contract for cause by giving written notice to the Local Agency of its intent to
terminate and at least ten (10) days opportunity to cure the default or show cause why termination is
otherwise not appropriate. In the event of termination, all finished or unfinished documents, data,
studies, surveys, drawings, maps, models, photographs and reports or other material prepared by the
Local Agency under this contract shall, at the option of the State, become its property, and the Local
Agency shall be entitled to receive just and equitable compensation for any services and supplies
delivered and accepted. The Local Agency shall be obligated to return any payments advanced
under the provisions of this contract.
Notwithstanding the above, the Local Agency shall not be relieved of liability to the State for
any damages sustained by the State by virtue of any breach of the contract by the Local Agency, and
the State may withhold payment to the Local Agency for the purposes of mitigating its damages until
such time as the exact amount of damages due to the State from the Local Agency is determined.
If after such termination it is determined, for any reason, that the Local Agency was not in
default or that the Local Agency's action/inaction was excusable, such termination shall be treated
as a termination for convenience, and the rights and obligations of the parties shall be the same as if
the contract had been terminated for convenience, as described herein.
C. Termination Due to Loss of Funding. The parties hereto expressly recognize that the Local
Agency is to be paid, reimbursed, or otherwise compensated with federal and/or State funds which
are available to the State for the purposes of contracting for the Project provided for herein, and
therefore, the Local Agency expressly understands and agrees that all its rights, demands and claims
to compensation arising under this contract are contingent upon availability of such funds to the
State. In the event that such funds or any part thereof are not available to the State, the State may
immediately terminate or amend this contract.
Section 15. Legal Authority
The Local Agency warrants that it possesses the legal authority to enter into this contract and
that it has taken all actions required by its procedures, by-laws, and/or applicable law to exercise that
authority, and to lawfully authorize its undersigned signatory to execute this contract and to bind the
Local Agency to its terms. The person(s) executing this contract on behalf of the Local Agency
warrants that such person(s) has full authorization to execute this contract.
Section 16. Representatives and Notice
Page 12 of 17
The State will provide liaison with the Local Agency through the State's Region Director,
Region 3, 222 S. 6`h Street, Room 317, Grand Junction, CO 81501. Said Region Director will also
be responsible for coordinating the State's activities under this contract and will also issue a "Notice
to Proceed" to the Local Agency for commencement of the Work. All communications relating to
the day-to-day activities for the work shall be exchanged between representatives of the State's
Transportation Region 3 and the Local Agency. All communication, notices, and correspondence
shall be addressed to the individuals identified below. Either party may from time to time designate
in writing new or substitute representatives.
If to State:
Peter Kozinski
CDOT Region 3
Resident Engineer
714 Grand Avenue
Eagle, CO 81631
970-524-0527
Section 17. Successors
If to the Local Agency:
Jeff Schneider
Town of Avon
P.O. Box 975
Avon, Colorado 81620
970-748-7134
Except as herein otherwise provided, this contract shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns.
Section 18. Third Party Beneficiaries
It is expressly understood and agreed that the enforcement of the terms and conditions of this
contract and all rights of action relating to such enforcement, shall be strictly reserved to the State
and the Local Agency. Nothing contained in this contract shall give or allow any claim or right of
action whatsoever by any other third person. It is the express intention of the State and the Local
Agency that any such person or entity, other than the State or the Local Agency receiving services or
benefits under this contract shall be deemed an incidental beneficiary only.
Section 19. Governmental Immunity
Notwithstanding any other provision of this contract to the contrary, no term or condition of
this contract shall be construed or interpreted as a waiver, express or implied, of any of the
immunities, rights, benefits, protection, or other provisions of the Colorado Governmental Immunity
Act, § 24-10-101, et seq., C.R.S., as now or hereafter amended. The parties understand and agree
that liability for claims for injuries to persons or property arising out of negligence of the State of
Colorado, its departments, institutions, agencies, boards, officials and employees is controlled and
limited by the provisions of § 24-10-101, et seq., C.R.S., as now or hereafter amended and the risk
management statutes, 24-30-1501, et seq., C.R.S., as now or hereafter amended.
Section 20. Severability
To the extent that this contract may be executed and performance of the obligations of the
parties may be accomplished within the intent of the contract, the terms of this contract are
Page 13 of 17
severable, and should any term or provision hereof be declared invalid or become inoperative for
any reason,' such invalidity w failure shall not affect the validity of any other term or provision
hereof.
Section 21. Waiver
The waiver of any breach of a term, provision, or-requirement of this contract shall not be
construed or'deemed as a waiver of any subsequent breach of such term, provision, or requirement,
or of any other term, 'provision or requirement.
Section 22. Entire'Understanding
This contract is intended as the complete integration of all understandings between the
parties. No prior or contemporaneous addition, deletion; or other amendment hereto shall have any
force or effect whatsoever, unless embodied herein by writing. No subsequent novation; renewal,
addition, deletion, or other amendment hereto shall have any force or effect unless embodied in a
writing executed and approved pursuant to the State Fiscal Rules.
Section 23. Survival of Contract Terms
Notwithstanding anything herein to the contrary, the parties understand and agree that all
terms and conditions of this contract and ''the exhibits and attachments hereto which may require
continued performance, compliance or effect beyond the termination date of the contract shall,
survive such termination date and shall be enforceable by the State as provided herein in the event of
such failure to perform or comply by the Local Agency.
Section 24. Modification and Amendment
This contract is subject to such modifications as may be required by changes in federal or
State law, or their implementing regulations. Any such required modification shall automatically be
incorporated into and be part of this'contract on the effective date of such change as if fully set forth'
'herein. Except as provided above, no modification of this contract shall be effective unless agreed to
in writing by both parties in an amendment to this contract that is properly executed and approved in
accordance with applicable law.
Section 25. Funding Letters
The State may allocate more or less funds available on this contract using'a Funding Letter
substantially equivalent to Exhibit F and bearing the approval of the State Controller or his designee.
The funding letter, shall not be deemed valid until it shall have been, approved by the State
Controller or his designee.
Section 26. Disadvantaged Business Enterprise (DBE)
TheLocal Agency will comply with all requirements of Exhibit E and the Local Agency
Contract Administration Checklist regarding DBE requirements for the Work, except that if the
Page 14 of 17
Local Agency desires to use its own DBE program to implement and administer the DBE provisions
of 49 CFR Part 26 under this contract, it must submit a copy of its program's requirements to the
State for review and approval before the execution of this contract. If the Local Agency uses its
program for this contract, the Local Agency shall be solely responsible to defend that DBE program
and its use of that program against all legal and other challenges or complaints, at its sole cost and
expense. Such responsibility includes, without limitation, determinations concerning DBE
eligibility requirements and certification, adequate legal and factual bases for DBE goals and good
faith efforts. State approval (if provided) of the Local Agency's DBE program does not waive or
modify the sole responsibility of the Local Agency for its use as described above.
Section 27. Disputes
Except as otherwise provided in this contract, any dispute concerning a question of fact
arising under this contract which is not disposed of by agreement will be decided by the Chief
Engineer of the Department of Transportation. The decision of the Chief Engineer will be final and
conclusive unless, within 30 calendar days after the date of receipt of a copy of such written
decision, the Local Agency mails or otherwise furnishes to the State a written appeal addressed to
the Executive Director of the Department of Transportation. In connection with any appeal
proceeding under this clause, the Local Agency shall be afforded an opportunity to be heard and to
offer evidence in support of its appeal. Pending final decision of a dispute hereunder,,the Local
Agency shall proceed diligently with the performance of the contract in accordance with the Chief
Engineer's decision. The decision of the Executive Director or his duly authorized representative
for the determination of such appeals will be final and conclusive and serve as final agency action.
This dispute clause does not preclude consideration of questions of law in connection with decisions
provided for herein. Nothing in this contract, however, shall be construed as making final the
decision of any administrative official, representative, or board on a question of law.
Section 28. Single Audit Act Amendment
All state and local government and non-profit organization Sub-Grantees receiving more than
$500,000 from all funding sources, that are defined as federal financial assistance for Single Audit
Act Amendment purposes, shall comply with the audit requirements of OMB Circular A-133 (Audits
of States, Local Governments and Non-Profit Organizations) see also, 49 CFR 18.20 through 18.26.
The Single Audit Act Amendment requirements that apply to Sub-Grantees receiving federal funds
are as follows:
a) If the Sub-Grantee expends less than $500,000 in Federal funds (all federal sources, not just
Highway funds) in its fiscal year then this requirement does not apply.
b) If the Sub-Grantee expends more than $500,000 in Federal funds, but only received federal
Highway funds (Catalog of Federal Domestic Assistance, CFDA 20.205) then a program specific
audit shall be performed. This audit will examine the "financial" procedures and processes for
this program area.
c) If the Sub-Grantee expends more than $500,000 in Federal funds, and the Federal funds are
from multiple sources (FTA, HUD, NPS, etc.) then the Single Audit Act applies, which is an
audit on the entire organization/entity.
d) Single Audit can only be conducted by an independent CPA, not by an auditor on staff.
Page 15 of 17
e) An audit is an allowable direct or indirect cost.
Page 16 of 17
Section 29.
(For Use Only with Inter-Governmental Contracts)
CONTROLLER'S APPROVAL. CRS 24-30-202 (1)
This contract shall not be deemed valid until it has been approved by the Controller of the State of Colorado or such assistant as he may
designate.
FUND AVAILABILITY. CRS 24-30-202 (5.5)
Financial obligations of the State of Colorado payable after the current fiscal year are contingent upon funds for that purpose being appropriated,
budgeted, and otherwise made available.
3. INDEMNIFICATION
To the extent authorized by law, the contractor shall indemnify, save, and hold harmless the State against any and all claims, damages, liability and
court awards including costs, expenses, and attorney fees incurred as a result of any act or omission by the Contractor, or its employees, agents,
subcontractors, or assignees pursuant to the terms of this contract.
No term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits,
protection, or other provisions for the parties, of the Colorado Governmental Immunity Act, CRS 24-10-101 et seq. or the Federal Tort Claims
Act, 28 U.S.C. 2671 et seq. as applicable, as now or hereafter amended.
4. INDEPENDENT CONTRACTOR. 4 CCR 801-2
THE CONTRACTOR SHALL PERFORM ITS DUTIES HEREUNDER AS AN INDEPENDENT CONTRACTOR AND NOT-AS AN EMPLOYEE.
NEITHER THE CONTRACTOR NOR ANY AGENT OR EMPLOYEE OF THE CONTRACTOR SHALL BE OR SHALL BE DEEMED TO BE AN
AGENT OR EMPLOYEE OF THE STATE. CONTRACTOR SHALL PAY WHEN DUE ALL REQUIRED EMPLOYMENT TAXES AND INCOME
TAX AND LOCAL HEAD TAX ON ANY MONIES PAID BY THE STATE PURSUANT TO THIS CONTRACT. CONTRACTOR ACKNOWLEDGES
THAT THE CONTRACTOR AND ITS EMPLOYEES ARE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS UNLESS THE
CONTRACTOR OR THIRD PARTY PROVIDES SUCH COVERAGE AND THAT THE STATE DOES NOT PAY FOR OR OTHERWISE
PROVIDE SUCH COVERAGE. CONTRACTOR SHALL HAVE NO AUTHORIZATION, EXPRESS OR IMPLIED, TO BIND THE STATE TO ANY
AGREEMENTS, LIABILITY, OR UNDERSTANDING EXCEPT AS EXPRESSLY SET FORTH HEREIN. CONTRACTOR SHALL PROVIDE AND
KEEP IN FORCE WORKERS' COMPENSATION (AND PROVIDE PROOF OF SUCH INSURANCE WHEN REQUESTED BY THE STATE) AND
UNEMPLOYMENT COMPENSATION INSURANCE IN THE AMOUNTS REQUIRED BY LAW, AND SHALL BE SOLELY RESPONSIBLE FOR
THE ACTS OF THE CONTRACTOR, ITS EMPLOYEES AND AGENTS.
5. NON-DISCRIMINATION.
The contractor agrees to comply with the letter and the spirit of all applicable state' and federal laws respecting discrimination and unfair
employment practices.
6:~ CHOICE OF LAW.
The laws of the State of Colorado and rules and regulations issued pursuant thereto shall be applied in the interpretation, execution, and
enforcement of this contract. Any provision of this contract, whether or not incorporated herein by reference, which provides for arbitration by any
extra-judicial body or person or which is otherwise in conflict with said laws, rules, and regulations shall be considered null and void. Nothing
contained in any provision incorporated herein by reference which purports to negate this or any other special provision in whole or in part shall
be valid or enforceable or available in any action at law whether by way of complaint, defense, or otherwise. Any provision rendered null and void
by the operation of this provision will not invalidate the remainder of this contract to the extent that the contract is capable of execution.
At all times during the performance of this contract, the Contractor shall strictly adhere to all applicable federal and state laws, rules, and
regulations that have been or may hereafter be established.
SOFTWARE PIRACY PROHIBITION Governor's Executive Order D 002 00
No State or other public funds payable under this Contract shall be used for the acquisition, operation, or maintenance of computer software in
violation of United States copyright laws or applicable licensing restrictions. The Contractor hereby certifies that, for the term of this Contract and
any extensions, the Contractor has in place appropriate systems and controls to prevent such improper use of public funds. If the State
determines that the Contractor is in violation of this paragraph, the State may exercise any remedy available at law or equity or under this
Contract, including, without limitation, immediate termination of the Contract and any remedy consistent with United States copyright laws or
applicable licensing restrictions.
EMPLOYEE FINANCIAL INTEREST. CRS 24718-201 & CRS 24-50-507
The signatories aver that to their knowledge, no employee of the State of Colorado has any personal or beneficial interest whatsoever in the
service or property described herein.
Effective Date: August 1, 2005
Page 17 of 17
SIGNATURE PAGE
THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT
CONTRACTOR:
Town of Avon
Legal Name of Contracting Entity
940771088
Social Security Number or FEIN
Signature of Authorized Officer
Print Name & Title of Authorized Officer
CORPORATIONS:
(A corporate attestation is required.)
STATE OF COLORADO:
BILL OWENS, GOVERNOR
By
Executive Director
Department of Transportation
LEGAL REVIEW:
JOHN W. SLITHERS
ATTORNEY GENERAL
By
Attest (Seal) By
(Corporate Secretary or Equivalent, or Town/City/County Clerk) (Place corporate seal here, if available)
ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER
CRS 24-30-202 requires that the State Controller approve all state contracts. This contract is not valid until the State Controller,
or such assistant as he may delegate, has signed it. The contractor is not authorized to begin performance until the contract is
signed and dated below. If performance begins prior to the date below, the State of Colorado may not be obligated to pay for
the goods and/or services provided.
STATE CONTROLLER:
LESLIE M. SHENEFELT
By
Date
Effective Date: August 1, 2005
Page 18 of 17
Exhibit A
FORM 463
or
SCOPE OF WORK
Exhibit B
LOCAL AGENCY
ORDINANCE
or
RESOLUTION
EXHIBIT C FUNDING PROVISIONS
A. The Local Agency has estimated the total cost the Work to be $186,822.50 which is to be
funded as follows:
Exhibit C - Page I of 2
Design
Const2312 1P 3301 $186
B. The matching ratio for the federal participating funds for- this project is 806/o federal-aid
funds (CFDA #20 2050) to 20% Local Agency funds, it being understood that such ratio
applies only to the $186,822.50 that is eligible for federal participation, it being further
understood that all non-participating costs are borne by the Local Agency at 100%. If the
total participating cost of performance of the Work exceeds $186,822.50, and additional
federal funds are made available for the project, the Local Agency'shall pay 20% of all such
costs eligible for federal participation and 100% of all non-participating costs; if additional
federal funds are not made available, the local agency shall pay all such excess costs. If the
total participating cost of performance of the Work is less than $186,822.50, then the
amounts of Local Agency and federal-aid funds will be decreased in accordance with the
funding ratio described herein. The performance ofthe Work shall be at no cost to the State.
C. The maximum amount payable to the Local Agency under this contract shall be $149,458.00
(For CDOT accounting purposes, the federal funds of $149,458.00 and local matching funds
of $37,364.50 will be encumbered for a total encumbrance of $186,822:50), unless such
amount is increased by an appropriate written modification to this contract executed before
any increased cost is incurred. It is understood and agreed by the parties hereto that the total
cost of the Work stated hereinbefore is the best estimate available, based on the design data
as approved at the time of execution of this contract, and that such cost is subject to revisions
(in accord with the procedure in the previous sentence) agreeable to the parties prior to bid
and award.
D. The parties hereto agree that this contract is contingent upon all funds designated for the
project herein being made available from federal and/or state and/or Local Agency sources,
as applicable. Should these sources, either federal or Local Agency, fail to provide
necessary funds as, agreed upon herein, the contract may be terminated by either party,
provided that any party terminating its interest and obligations herein shall not be relieved of
any obligations which existed prior to the effective date of such termination or which may
occur as a result of such termination.
Exhibit C - Page 2 of 2
Exhibit D
ATTACHMENT LO
Certification for Federal-Aid Contracts
The contractor certifies, by signing this contract, to the best of its knowledge and belief, that:
1. No Federal appropriated funds have been paid or will be paid, by or on behalf or the
undersigned, to any person for influencing or attempting to influence an officer or employee of any
Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with the awarding of any Federal loan, the entering into of any
cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any
Federal contract, grant, loan, or cooperative agreement.
2. 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, grant, 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 subrecipients shall certify and disclose accordingly.
Required by 23 CFR 635.112
Exhibit D - Page 1 of 1
Exhibit E
DISADVANTAGED BUSINESS ENTERPRISE (DBE)
SECTION 1. Policy.
It is the policy of the Colorado Department of Transportation (CDOT) that disadvantaged business
enterprises shall have the maximum opportunity to participate in the performance of contracts
financed in whole or in part with-Federal funds under this. agreement, pursuant to 49 CFR Part 23.
Consequently, the 49 CFR' Part IE DBE requirements the Colorado Department of Transportation
DBE Program (or a Local Agency. DBE.Program approved in advance by the State) apply to this
agreement.
SECTION 2. DBE Obligation.
The recipient or its contractor agrees to ensure that disadvantaged business enterprises as determined
by the Office of Certification at the Colorado Department of Regulatory Agencies have the maximum
opportunity. to participate in the performance of contracts and subcontracts financed in whole or in
part with Federal funds provided under this agreement. In, this regard, all participants or contractors
shall take all necessary and reasonable steps in accordance with the CDOT DBE,ptogram (or aLocal
Agency DBE Program approved in advance by the State) to ensure that disadvantaged business
enterprises have the maximum opportunity to compete for and perform contracts. Recipients and
their contractors shall not discriminate on the basis of race, color, national origin, or sex in the award
and performance of CDOT. assisted contracts.
SECTION 3 DBE Program.
The contractor (subrecipient) shall be responsible for obtaining. the Disadvantaged Business
Enterprise Program of the Colorado Department of Transportation, 1988, as amended, and shall,
comply with the applicable provisions of the program. (If applicable).
A copy of the DBE Program is available from and will be mailed to the contractor upon request:
Business Programs Office
Colorado Department of Transportation
4201 East Arkansas Avenue, Room 287
Denver, Colorado 80222-3400
Phone: (303) 757-9234
revised 1/22/98 Required by 49 CFR Part 23.41
Exhibit E - Page 1 of 1
Exhibit F
COLORADO DEPARTMENT OF TRANSPORTATION CONTRACT AUTHORITY:
FUNDING INCREASE/ DECREASE AND APPROVAL LETTER Region: State Controller Policy letter on June 12, 1996
,Complete section 1 and submit to CDOT Controller's office. CDOT Controller letter on May 23, 1996
(1)This form to be used for the following contracts/ situations only (check the appropriate situation):
-indefinite quantity, order more/add more utility/ railroad, underestimated total cost
CDOT construction, sum of CMO's _LA construction, underestimated cost
CDOT construction, underestimated total cost _CDOT consultant, underestimated cost
SECTION 1 (Region use)
Date: (2)
Project code (3)
To: -CDOT Controller (FAX #(303) 757-9573 or e-mail CONTROLLER)
Project # (4)
From:
Office: (5)
Phone # (5)
FAX # (5)
Region # (5)
CDOT has executed a contract with: (6)
Address: (6)
FEIN # (6)
Contract routing # (7)
COFRS encumbrance # (indicate PO, SC or PG
(8)
Fund
Orgn.
Appro.
Prgrm.
Func.
Object/Sub-obj N/P
GBL
Reporting Catg.
Proj/Sub/Phase
(9)
(9)
(9)
(9)
(9)
(9)
(9)
(9)
(9)
Original contract amount
Has a Budget Request been processed to cover the contract amount increase?
(10)
es _no (14)
Previous Funding Letter(s) total
Preparer's name 0 5)
S (11),
(Funding letter #1 thru #__J
PHONE NO:
This Funding Letter total
Contract Administrator's/ Business Manager's Approval
S (12)
(16)
PHONE NO:
Adjusted contract amount
CDOT Designee Approval
S (13)
(17)
Local Agency approval
(18)
SECTION 2 (Controller's Office use) 0 9)
Total allotment amount
Commission budget
$ (19)
S (19)
If construction:
CE charges
Indirect chgs
Adjusted contract amount plus total CE & indirect
_CE pool elig. (19)
S (19)
$ 0 9)
charges calculation S (19)
I have reviewed the financial status of the project, organization, grant and have determined that sufficient funds are available
to cover this increase, effective as of 0 9)
State Controller or Delegee
Date
(20)
(20)
Exhibit F -Page 1 of 1
Exhibit G
LOCAL AGENCY
CONTRACT ADMINISTRATION
CHECKLIST
CDOT Form 1243
Exhibit G - Page I of I
ATTACHMENT #1
Exhibit H
THE LOCAL AGENCY SHALL USE THESE PROCEDURES TO IMPLEMENT FEDERAL-AID
PROJECT AGREEMENTS WITH PROFESSIONAL CONSULTANT SERVICES '
Title 23 Code of Federal Regulations (CFR) 172 applies to a federally funded local agency project agreement
administered by CDOT that involves'professional consultant services. 23 CFR.172 and 23 CFR 172(d) state that, "When
federal-aid highway funds participate in the contract a local shall use the same procedures as used 'by the State to
administer contracts Therefore, local agencies must comply with this CFR requirement-and the following state
procedures when obtaining professional consultant services under a federally funded consultant contract administered by
COOT.,
CDOT has formulated its procedures in Procedural Directive (P.D.) 400.1 and the related operations guidebook titled
"Obtaining Professional Consultant Services". This directive and guidebook incorporate requirement's from both Federal
and State regulations, i.e., 23 CFR 172 and Colorado Revised Statute (C.R:S.) 24-30-1401 et seq. Copies of the directive
and the guidebook may be obtained upon request from CDOT's Agreements and Consultant Management Unit. [Local
agencies should have their own written procedures on file for each method of procurement that addresses the items in 23
CFR 172.5(b)(1-6)].
Because the,procedures and laws described in the Procedural Directive and the guidebook are quite lengthy, the
subsequent steps serve as a short-hand -guide to CDOT procedures that a local agency must follow in obtaining
professional consultant services. This guidance follows the format of 23 CFR 172. The steps are:
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 often percent (10%) Disadvantaged Business Enterprise (DBE)
participation as a minimum for the project.
The analysis and selection of the consultants should be done in accordance with C.R.S. 24-30-1403. This section
of the regulation identifies the criteria to be used in the evaluation of CDOT pre-qualified prime consultants and
their team. It also shows which criteria are used to short-list and to make a final selection.
The short-list is based on the following evaluation factors:
a. Qualifications,
b. Approach to the project,
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,
Exhibit H Page 1 of 2
f. Volume of previously awarded contracts, and
g. Involvement of minority consultants.
Exhibit H
Under 24-30-1401, cost shall not be considered as a factor in the evaluation of professionalconsultant
services.
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 reimbursement 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 (6) to fifteen (15) percent of the total direct and indirect
costs.
7. A qualified local agency employee shall be responsible and in charge of the project to ensure that the work being
pursued is complete, accurate, and consistent with the terms, conditions, and §pecifications of the contract.,At the
end,ofproject, the local agency prepares a performance evaluation (a CDOT form is available) on the consultant.
8: Each of the steps listed above is to be documented in accordance with the provisions of 49 CFR 18.42, which
provide for records to be kept at least three (3) years from the date that the local agency submits its final
expenditure report: Records of projects under litigation shall be kept at least three (3) years after the case has
been settled. .
The C.R.S. 24-30-1401 through 24-30-1408,23 CFR Part 172, and P.D. 400_ .1, provide additional details for complying
with the eight (8) steps just discussed.
Exhibit H - Page 2 of 2
Exhibit I
FHWA Form 1273
REQUIRED CONTRACT PROVISIONS
FEDERAL-AID CONSTRUCTION CONTRACTS
FHWA-1273 Electronic version - March 10, 1994
1.
General
If.
Nondiscrimination
Ill.
Nonsegregated Facilities
IV.
Payment of Predetermined Minimum Wage
V.
Statements and Payrolls
VI.
Record of Materials, Supplies, and Labor
VII.
Subletting or Assigning the Contract
VIII.
Safety: Accident Prevention
IX.
False Statements Concerning Highway Projects
X.
Implementation of Clean Air Act and Federal
Water Po
llution Control Act
XI_
Certification Regarding Debarment, Suspension,
Ineligibility, and Voluntary Exclusion
XII.
Certification Regarding Use of Contract Funds for
Lobbying
ATTACHMENTS
A. Employment Preference for Appalachian Contracts
(included in Appalachian contracts only)
1. 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 superin-
tendence 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 Provi-
sions 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 contract. Such disputes shall be resolved in accor-
dance 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
1 6. Selection of Labor. During the performance of this con-
1 tract, the contractor shall not:
3
3 a. discriminate against labor from any other State, posses-
6 sion, or territory of the United States (except for employment
6 preference for Appalachian contracts, when applicable, as
7 specified in Attachment A), or
7
7 b. employ convict labor for any purpose within the limits of
the project unless it is labor performed by convicts who are on
8 parole, supervised release, or probation.
8 II. NONDISCRIMINATION
(Applicable to all Federal-aid construction contracts and to all
related subcontracts of $10,000 or more.)
1. Equal Employment Opportunity:' Equal employment
opportunity (EEO) requirements not to discriminate and to take
affirmative action to assure equal opportunity as set forth under
laws, executive orders, rules, regulations (28 CFR 35, 29 CFR
1630 and 41 CFR 60) and orders of the Secretary of Labor as
modified by the provisions prescribed herein, and imposed
pursuant to 23 U.S.C. 140 shall constitute the EEO and specific
affirmative action standards for the contractor's project activities
under this contract. The Equal Opportunity Construction Contract
Specifications set forth under 41 CFR 60-4.3 and the provisions of
the American Disabilities Act of 1990 (42 U.S.C. 12101 et seg.)
set forth under 28 CFR 35 and 29 CFR 1630 are incorporated by
reference in this contract. In the execution of this contract, the
contractor agrees to comply 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 obliga-
tions 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 employ-
ment, 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, preapprenticeship, 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
Exhibit I - Pagel of 9
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 contract-
or'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 employ-
ees 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 bargain-
ing 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 agree-
ment 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 implementation 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.
Exhibit I
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 discrimination. 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 contract, 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 contract, this subpara-
graph 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
Exhibit I - Page 2 of 9 REQUIRED BY 23 CFR 633.102
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 contract.
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 contract. 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 subcon-
tractor 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 autho-
rized 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 opportuni-
ties 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.
Exhibit I
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 contract
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 contract. 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, transpor-
tation, 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'disabil'ity,
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 determination") 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 reason-
ably 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
Exhibit I - Page 3 of 9 REQUIRED BY 23 CFR 633.102
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 contract.
2. Classification:
a. The SHA contracting officer shall require that any class
of laborers or mechanics employed under the contract, which is
not listed in the wage determination, shall be classified, in
conformance with the wage determination.
b. The contracting officer shall approve an additional
classification, wage rate and fringe benefits only when' the
following criteria have been met:
(1) the work to be performed by the additional
classification requested is not performed by a classification in the
wage determination;
(2) the additional classification is utilized in the area by
the construction industry;
(3) the proposed wage rate, including any bona fide
fringe benefits, bears a reasonable relationship to the wage rates
contained in the wage determination; and
(4) with respect to helpers, when such a classification
prevails in the area in which the work is performed.
c. If the contractor or subcontractors, as appropriate, the
laborers and mechanics (if known) to be employed in the addition-
al 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 representative, will
approve, modify, or disapprove every additional classification
action within 30 days of receipt and so advise the contracting
officer or will notify the contracting officer within the 30-day period
that additional time is necessary.
d. In the event the contractor or subcontractors, as appro-
priate, 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 recommenda-
tion of the contracting officer, to the Wage and Hour Administrator
for determination. Said Administrator, or an authorized represen-
tative, will issue a determination within 30 days of receipt and so
advise the contracting officer or will notify the contracting officer
Exhibit I
within the 30-day period that additional time is necessary
e. The wage rate (including fringe benefits where appropri-
ate) 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 Secre-
tary of Labor has found, upon the written request of the contrac-
tor, 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.
i
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 apprentice-
ship 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 regis-
tered or otherwise employed as stated above, shall be paid not
less than the applicable wage rate listed in the wage determina-
tion 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 (ex-
pressed 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 determi-
Exhibit I - Page 4 of 9 REQUIRED BY 23 CFR 633.102
nation 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 determi-
nation 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 apprentice-
ship 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 determination 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 per-
formed.
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 require-
Exhibit I
ments 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 apprentic-
es 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
contract or any other Federal- contract with the same prime
contractor, or any other Federally-assisted contract subject to
Davis-Bacon prevailing wage requirements which is held, by the
same prime contractor, as much of the accrued payments or
advances as may be considered necessary to pay'laborers and
mechanics, including apprentices, trainees, and helpers, em-
ployed 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 tie
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
Exhibit I - Page 5 of 9 REQUIRED BY 23 CFR 633.102
(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 refer-
ence.
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 commit-
ment 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 subcon-
tractor 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;
Exhibit I
(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 certifica-
tion set forth on the reverse side of Optional Form WH-347 shall
satisfy the requirement for submission of the "Statement of
Compliance" required by paragraph 2d of this Section V.
f. The falsification of any of the above certifications may
subject the contractor to civil or criminal prosecution under 18
U.S.C. 1001 and 31 U.S.C. 231.
g. The contractor, or subcontractor shall make the records
required under paragraph 2b of this Section V available for
inspection, copying, or transcription by authorized representatives
of the SHA, the FHWA, or the DOL, and shall permit such repre-
sentatives 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, appli-
cant, 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 -
contract.
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
Exhibit I - Page 6 of 9 REQUIRED BY 23 CFR 633.102
percentage if specified elsewhere in the contract) of the total
original contract price, excluding any specialty items designated
by the State. Specialty items may be performed by subcontract
and the amount of any such specialty items performed may be
deducted from the total original contract price before computing
the amount of work required to be performed by the contractor's
own organization (23 CFR 635).
a. "Its own organization" shall be construed to include only
workers employed and paid directly by the prime contractor and
equipment owned or rented by the prime contractor, with or
without operators. Such term does not include employees or
equipment of a subcontractor, assignee, or agent of the prime
contractor.
b. "Specialty Items" shall be construed to be limited to
work that requires highly specialized knowledge, abilities, or
equipment not ordinarily available in the type of contracting
organizations qualified and expected to bid on the contract as a
whole and in general are to be limited to minor components of the
overall contract.
2. The contract amount upon which the requirements set forth
in paragraph 1 of Section VII is computed includes the cost of
material and manufactured products which are to be purchased or
produced by the contractor under the contract provisions.
3. The contractor shall furnish (a) a competent superintendent
or supervisor who is employed by the firm, has full authority to
direct performance of the work in accordance with the contract
requirements, and is in charge of all construction operations
(regardless of who performs the work) and (b) such other of its
own organizational resources (supervision, management, and
engineering services) as the SHA contracting officer determines is
necessary to assure the performance of the contract.
4. No portion of the contract shall be sublet, assigned or
otherwise 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 contract the contractor shall
comply with all applicable Federal, State, and local laws govern-
ing 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 contract, and shall be made a
condition of each subcontract, which the contractor enters into
pursuant to this contract, that the contractor and any subcontrac-
tor 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 contract
that the Secretary of Labor or authorized representative thereof,
shall have right of entry to any site of contract performance to
inspect or investigate the matter of compliance with the construc-
Exhibit I
tion safety and health standards and to cant' 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, suppliers, 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 misrepre-
sentation 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 follows:
"Whoever, being an officer, agent, or employee of the United
States, or of any State or Territory, or whoever, whether a person,
association, firm, or corporation, knowingly makes any false
statement, false representation, or false report as to the charac-
ter, 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 forapproval 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 orto be
performed, or materials furnished or to be furnished, in connection
with the construction of any highway or related project approved
by the Secretary of Transportation; or
Whoever knowingly makes any false statement or false
representation as to material fact in any statement, certificate, or
report submitted pursuant to provisions of the Federal-aid Roads
Act approved July 1, 1916, (39 Stat. 355), as amended and
supplemented;
Shall be fined not more that $10,000 or imprisoned not more
than 5 years or both."
X. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL
WATER POLLUTION CONTROL ACT
(Applicable to all Federal-aid construction contracts and to all
related subcontracts of $100,000 or more.)
By submission of this bid or the execution of this contract, 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 contract, unless such contract is exempt under the Clean Air
Act, as amended (42 U.S.C. 1857 et se g., as amended by Pub.L.
91-604), and under the Federal Water Pollution Control Act, as
amended (33 U.S.C. 1251 et sec., 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
Exhibit I - Page 7 of 9 REQUIRED BY 23 CFR 633.102
Exhibit I
Violating Facilities pursuant to 40 CFR 15.20. agency entering into this transaction.
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 govemment 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)
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 transac-
tion, 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 volun-
tarily 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
nonprocurement portion of the "Lists of Parties Excluded From
Federal Procurement or Nonprocurement Programs"
(Nonprocurement List) which is compiled by the General Services
Administration.
1. 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.
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.
f. The prospective primary participant agrees by submitting
this proposal that, should the proposed covered transaction be
entered into, it shall not knowingly enter into any lower tier
covered transaction with a person who is debarred, suspended,
declared ineligible, or voluntarily excluded from participation in
this covered transaction, unless authorized by the department or
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 judgement 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
1 b 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
Exhibit I - Page 8 of 9 REQUIRED BY 23 CFR 633.102
proposal.
Exhibit I
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.
2. Instructions for Certification - Lower Tier Covered
Transactions:
(Applicable to all subcontracts, purchase orders and other
lower tier transactions of $25,000 or more - 49 CFR 29)
a. By signing and submitting this proposal, the prospective
lower tier is providing the certification set out below.
b. The certification in this clause is a material
representation of fact upon which reliance was placed when this
transaction was entered into. If it is later determined that the
prospective lower tier participant knowingly rendered an
erroneous certification, in addition to other remedies available to
the Federal Government, the department, or agency with which
this transaction originated may pursue available remedies,
including suspension and/or debarment.
c. The prospective lower tier participant shall provide
immediate written notice to the person to which this proposal is
submitted if at any time the prospective lower tier participant
learns that its certification was erroneous by reason of changed
circumstances.
d. The terms "covered transaction," "debarred,"
"suspended," "ineligible," "primary covered transaction,"
"participant," "person," "principal," "proposal," and "voluntarily
excluded," as used in this clause, have the meanings set out in
the Definitions and Coverage sections of rules implementing
Executive Order 12549. You may contact the person to which this
proposal is submitted for assistance in obtaining a copy of those
regulations.
e. The prospective lower tier participant agrees by
submitting this proposal that, should the proposed covered
transaction be entered into, it shall not knowingly enter into any
lower tier covered transaction with a person who is debarred,
suspended, declared ineligible, or voluntarily excluded from
participation in this covered transaction, unless authorized by the
department or agency with which this transaction originated.
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 prospec-
tive 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 submit-
ting 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 employ-
ee 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, continua-
tion, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
f. The prospective lower tier participant further agrees by
submitting this proposal that it will include this clause titled
"Certification Regarding Debarment, Suspension, Ineligibility and
Voluntary Exclusion-Lower Tier Covered Transaction," without
modification, in all lower tier covered transactions and in all
solicitations for lower tier covered transactions.
g. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that is not debarred, suspended, ineligible, or volun-
tarily 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
Nonprocurement 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 knowl-
edge 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.
1. 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
b. If any funds other than Federal appropriated funds have
been paid or will be paid to any person for influencing or attempt-
ing 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. Submission of this certification is a prerequisite for
making or entering into this transaction imposed by 31 U.S.C.
1352. Any person who fails to file the required certification shall
be subject to a civil penalty of not less than $10,000 and not more
than $100,000 for each such failure.
3. The prospective participant also agrees by submitting his or
her bid or proposal that he or she shall require that the language
of this certification be included in all lower tier subcontracts, which
exceed $100,000 and that all such recipients shall certify and
disclose accordingly.
Exhibit I - Page 9 of 9 REQUIRED BY 23 CFR 633.102
Exhibit J
FEDERAL REQUIREMENTS
Federal laws and regulations that may be applicable to the Work include:
A. The "Uniform Administrative Requirements for Grants 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:
1. the Local Agency/Contractor shall follow applicable procurement procedures, as required by section 18.36(d);
2. the Local Agency/Contractor shall request and obtain prior CDOT approval of changes to any subcontracts in the
manner, and to the extent required by, applicable provisions of section 18.30;
3. the Local Agency/Contractor shall comply with section 18.37 concerning any subgrants;
4. to expedite any CDOT Approval, the Local Agency/Contractor's attorney, or other authorized representative, shall
also submit 'a letter ,to CDOT certifying, Local Agency/Contractor compliance with. section 18.30 change order
procedures, and with 18.36(d) procurement procedures, and with 18.37 subgrant procedures, as applicable;
5. the Local Agency/Contractor shall incorporate the specific contract provisions described in 1.8.36(1) (which are also
deemed incorporated herein) into any subcontract(s) for such services as terms and conditions of those subcontracts.
B. 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 grantees and, their contractors - or
subgrantees).
C. The Copeland "Anti-Kickback" Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29
CFR Part 3) (All contracts and subgrants for construction or repair).
D. 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 grantees and subgrantees when-required by Federal
grant program legislation.' ' This act requires that all laborers and mechanics employed by contractors or sub-
contractors to work on construction projects financed by federal assistance must be paid wages not less than those,
established for the locality of the project by the Secretary of Labor).
E. 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 grantees and
subgrantees in excess of $2,000, and in excess of $2,500 for other contracts which involve the employment of
mechanics or laborers).
F. 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 subgrants of amounts in excess of $100,000).
G. Mandatory standards and policies relating to energy efficiency which are contained in the state energy
conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94-163).
H. Office of Management and Budget Circulars A-87, A-21 or A-122, and A-102 or A-110, whichever is
applicable.
1. The Hatch Act (5 USC 1501-1508) and Public Law 95-454 Section 4728. These statutes state that federal
Exhibit J - Page 1 of 3
Exhibit J
funds cannot be used for partisan political purposes of any kind by any person or organization involved in the
administration of federally-assisted programs.
J. '42 USC 6101 et seq. 42 USC 2000d, 29 USC 794, and implementing regulation, 45 C.F.R. Part 80 et. se q..
These acts require that no person shall, on the grounds of race, color, national origin, age, or handicap, be excluded
from participation in or be subjected to discrimination in any program or activity funded, in whole or part, by federal
funds;
K.The Americans with Disabilities Act (Public Law 101-336; 42 USC 12101, 12102, 12111-12117,12131-
12134, 12141=12150, 12161-12165, 12181-12189, 12201-12213 47 USC-225 and 47 USC 611. .
L. -.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 this contract.)
M. The Drug-Free Workplace Act (Public Law 100-690 Title V, subtitle D, 41 USC 701 et se g.).
N. The Age Discrimination Act of 1975, 42 U.S.C. Sections 6101 et. se g. and its implementing regulation,,45
C.F.R. Part 91; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, as amended, and implementing
regulation-45 C.F.R. Part 84.
0. 23 C.F.R. Part 172, concerning "Administration of Engineering and Design Related Contracts".,
P. 23 C.F.R Part 633, concerning "Required Contract Provisions for Federal-Aid Construction Contracts":
Q. 23 C.F.R. Part 635, concerning "Construction and Maintenance Provisions".
R. - Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973. The
requirements for which are shown in the Nondiscrimination Provisions, which are attached hereto and made a part
hereof.
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:
1. 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 contract.
2. 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.
3. 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,
Exhibit J - Page 2 of 3
Exhibit J
including procurement of materials or 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
ground of race, color, sex, mental or physical handicap or national origin.
4. 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.
5. Sanctions for Noncompliance. In the event of. the Contractor's noncompliance with the
nondiscrimination provisions of this contract, 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.
6. Incorporation of Provisions. The Contractor will include the provisions ofparagraphs 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.
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