HomeMy WebLinkAboutResolution 51, 2020CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 51 Series of 2020
TITLE: A RESOLUTION APPROVING AN AMENDMENT TO THE
CONTRACT WITH THE COLORADO DEPARTMENT OF TRANSPORTATION FOR THE WADSWORTH BOULEVARD WIDENING PROJECT FROM 35TH AVENUE TO INTERSTATE 70
WHEREAS, the City Council wishes to provide for the improvement of
Wadsworth Boulevard from 35th Avenue to Interstate 70; and
WHEREAS, the City was awarded a federal transportation grant in 2015 by the Denver Regional Council of Governments (DRCOG) to improve Wadsworth Boulevard between 35th and 48th Avenues; and
WHEREAS, the City approved an Agreement on October 12, 2015 with the
Colorado Department of Transportation (CDOT), DRCOG’s funding steward, for the original funding of the Project that expires on October 26, 2020; and
WHEREAS, the City has been awarded a second federal transportation grant by DRCOG to improve Wadsworth Boulevard between 48th Avenue and Interstate 70; and
WHEREAS, the City has been allocated State Safety and State Surface funds by
CDOT to improve Wadsworth Boulevard between 35th Avenue and Interstate 70; and
WHEREAS, the City staff has negotiated Amendment #1 to the original 2015 Agreement with CDOT to add the additional funding to the Project for the construction phase and extend the agreement expiration date to October 25, 2025.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Wheat
Ridge, Colorado, that:
Section 1. Amendment Approved. Amendment #1 between the City and the Colorado Department of Transportation for Project No. NHPP 1211-086, SA 21006: Wadsworth Boulevard Widening from 35th Avenue to Interstate 70, is
hereby approved and the Mayor and City Clerk are authorized and directed to
execute the same.
DONE AND RESOLVED this 12th day of October 2020.
_______________________
Bud Starker, Mayor
ATTEST:
__________________________ Steve Kirkpatrick, City Clerk
PO #: 471000792 Routing #: 16-HA1-ZH-00035-M0007
Document Builder Generated Rev. 12/09/2016 Page 1 of 2
STATE OF COLORADO AMENDMENT
Amendment #: 1 Project #: NHPP 1211-086 (21006) SIGNATURE AND COVER PAGE
State Agency Department of Transportation Amendment Routing Number 16-HA1-ZH-00035-M0007
Local Agency CITY OF WHEAT RIDGE Original Agreement Routing Number 16-HA1-ZH-00035
Agreement Maximum Amount
Total for all state fiscal years $45,000,000.00
Agreement Performance Beginning Date The later of the effective date or October 26, 2015
Initial Agreement expiration date October 25, 2025
THE PARTIES HERETO HAVE EXECUTED THIS AMENDMENT
Each person signing this Amendment represents and warrants that he or she is duly authorized to execute this Amendment and to bind the Party authorizing his or her signature.
STATE OF COLORADO Jared S. Polis, Governor Department of Transportation
Shoshana M. Lew, Executive Director
___________________________________________ Stephen Harelson, P.E., Chief Engineer
Date: _________________________
LOCAL AGENCY CITY OF WHEAT RIDGE
___________________________________________ Signature
___________________________________________ By: (Print Name and Title)
Date: _________________________
LOCAL AGENCY (2nd Signature if Necessary)
___________________________________________ Signature
___________________________________________ By: (Print Name and Title)
Date: _________________________
In accordance with §24-30-202 C.R.S., this Amendment is not valid until signed and dated below by the State
Controller or an authorized delegate.
STATE CONTROLLER Robert Jaros, CPA, MBA, JD
By:___________________________________________ Department of Transportation
Effective Date:_____________________
Bud Starker, Mayor
October 12, 2020
PO #: 471000792 Routing #: 16-HA1-ZH-00035-M0007
Document Builder Generated Rev. 12/09/2016 Page 2 of 2
1)PARTIESThis Amendment (the “Amendment”) to the Original Agreement shown on the Signature and Cover Page for this Amendment (the “Agreement”) is entered into by and between the Local Agency and the State.
2)TERMINOLOGYExcept as specifically modified by this Amendment, all terms used in this Amendment that are defined in the Agreement shall be construed and interpreted in accordance with the Agreement.
3)EFFECTIVE DATE AND ENFORCEABILITYA.Amendment Effective DateThis Amendment shall not be valid or enforceable until the Amendment Effective Date shown on the Signature and Cover Page for this Amendment. The State shall not be bound by any provision of this Amendment before that Amendment Effective Date, and shall have no obligation to pay the Local Agency for any Work performed or expense incurred under this Amendment either before or after the Amendment term shown in §3.B of this AmendmentB.Amendment TermThe Parties’ respective performances under this Amendment and the changes to the Agreement contained herein shall commence on the Amendment Effective Date shown on the Signature and Cover Page for this Amendment and shall terminate on the termination of the Agreement.
4)PURPOSEThe parties entered into this contract for the widening of Wadsworth Boulevard, from 35th Avenue to 48th Avenue. The parties now wish to amendment the contract to increase total funding to $45,000,000.00, update the Funding Provisions (through a new Exhibit C-4), extend the term of the contract by five years, and update the entire Exhibit Suite.
5)MODIFICATIONS
a)Increase Total Budget from $31,600,000 to $45,000,000b)Decrease Federal STP-M Funds from $25,280,000 to $24,960,000c)Decrease Local STP-M Match from $6,320,000 to $6,240,000d)Add Federal CMAQ Funds of $5,280,000e)Add Local CMAQ Match of $1,320,000f)Add State Safety Funds of $4,200,000g)Add State Surface Funds of $3,000,000h)Extend term of contract to October 25, 2025i)Replace Exhibit Suite A-K in its entirety with new Exhibit Suite A-M
6)LIMITS OF EFFECTThis Amendment is incorporated by reference into the Agreement, and the Agreement and all prior amendments or other modifications to the Agreement, if any, remain in full force and effect except as specifically modified in this Amendment. Except for the Special Provisions contained in the Agreement, in the event of any conflict, inconsistency, variance, or contradiction between the provisions of this Amendment and any of the provisions of the Agreement or any prior modification to the Agreement, the provisions of this Amendment shall in all respects supersede, govern, and control. The provisions of this Amendment shall only supersede, govern, and control over the Special Provisions contained in the Agreement to the extent that this Amendment specifically modifies those Special Provisions.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
Exhibit A-1 – Page 1 of 1
EXHIBIT A-1
STATEMENT OF WORK
Wadsworth Blvd Widening: 35th Ave to I-70
NHPP 1211-086 (21006)
Scope of Work
Develop an EA (Environmental Assessment) Template and construction plans to widen
Wadsworth Boulevard from 4 (four) lanes to 6 (six) lanes with additional turn lanes at key
congested intersections and medians to better manage access along the corridor. Sidewalks will
be included. Also included, will be new LED street and pedestrian lighting and street-scape improvements with landscaping and street furniture.
Exhibit B-1 - Page 1 of 2
EXHIBIT B-1
SAMPLE OPTION LETTER
State Agency Department of Transportation Option Letter Number ZOPTLETNUM
Local Agency ZVENDORNAME Agreement Routing Number ZSMARTNO
Agreement Maximum Amount Initial term State Fiscal Year ZFYY_1 Extension terms
State Fiscal Year ZFYY_2 State Fiscal Year ZFYY_3 State Fiscal Year ZFYY_4 State Fiscal Year ZFYY_5 Total for all state fiscal years
$ ZFYA_1
$ ZFYA_2 $ ZFYA_3 $ ZFYA_4 $ ZFYA_5 $ ZPERSVC_MAX_ AMOUNT
Agreement Effective Date The later of the effective date or ZSTARTDATEX
Current Agreement Expiration Date ZTERMDATEX
1.OPTIONS:
A.Option to extend for an Extension Term
B.Option to unilaterally authorize the Local Agency to begin a phase which may include Design, Construction,Environmental, Utilities, ROW incidentals or Miscellaneous ONLY (does not apply to Acquisition/Relocation orRailroads) and to update encumbrance amounts (a new Exhibit C must be attached with the option letter and shall belabeled C-1, future changes for this option shall be labeled as follows: C-2, C-3, C-4, etc.).
C.Option to unilaterally transfer funds from one phase to another phase (a new Exhibit C must be attached with theoption letter and shall be labeled C-1, future changes for this option shall be labeled as follows: C-2, C-3, C- 4, etc.).
D.Option to unilaterally do both A and B (a new Exhibit C must be attached with the option letter and shall belabeled C-1, future changes for this option shall be labeled as follows: C-2, C-3, C-4, etc.).
E.Option to update a Phase Performance Period and/or Modify OMB Uniform Guidance Information.
2.REQUIRED PROVISIONS: Option A
In accordance with Section 2, C of the Original Agreement referenced above, the State hereby exercises its option for an
additional term, beginning on (insert date) and ending on the current contract expiration date shown above, under the
same funding provisions stated in the Original Contract Exhibit C, as amended.
Option B
In accordance with Section 7, E of the Original Agreement referenced above, the State hereby exercises its option to
authorize the Local Agency to begin a phase that will include (describe which phase will be added and include all that
apply – Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous) and to encumber previously
budgeted funds for the phase based upon changes in funding availability and authorization. The encumbrance for
(Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous) is (insert dollars here). A new
Exhibit C-1 is made part of the original Agreement and replaces Exhibit C. (The following is a NOTE only, please
delete when using this option. Future changes for this option for Exhibit C shall be labeled as follows: C-2, C-3, C-4,
etc.).
Option C
In accordance with Section 7, E of the Original Agreement referenced above, the State hereby exercises its option to
Exhibit B-1 - Page 2 of 2
authorize the Local Agency to transfer funds from (describe phase from which funds will be moved) to (describe phase
to which funds will be moved) based on variance in actual phase costs and original phase estimates. A new Exhibit C-1
is made part of the original Agreement and replaces Exhibit C.
Option D
In accordance with Section 7, E of the Original Agreement referenced above, the State hereby exercises its option to
authorize the Local Agency to begin a phase that will include (describe which phase will be added and include all that
apply – Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous); 2) to encumber funds for
the phase based upon changes in funding availability and authorization; and 3) to transfer funds from (describe phase
from which funds will be moved) to (describe phase to which funds will be moved) based on variance in actual phase costs
and original phase estimates. A new Exhibit C-1 is made part of the original Agreement and replaces Exhibit C.
(The following language must be included on ALL options):
The Agreement Maximum Amount table on the Contract’s Signature and Cover Page is hereby deleted and replaced
with the Current Agreement Maximum Amount table shown above.
Option E
In accordance with Section 7, E of the Original Agreement referenced above, the State hereby exercises its option to
authorize the Local Agency to update a Phase Performance Period and/or Modify OMB Uniform Guidance Information.
A new Exhibit C-1 is made part of the original Agreement and replaces Exhibit C.
3.OPTION EFFECTIVE DATE:
The effective date of this option letter is upon approval of the State Controller or delegate.
APPROVALS:
State of Colorado:
Jared S. Polis, Governor
By: Date:
Executive Director, Colorado Department of Transportation
ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER
State Controller Robert Jaros, CPA, MBA, JD
By:
Date:
CRS §24-30-202 requires the State Controller to approve all State Contracts. This Agreement is not valid until signed and dated below by the State Controller or delegate. Contractor is not authorized to begin performance until such time. If the Local Agency begins performing prior thereto, the State of Colorado is not obligated to pay the Local Agency for such performance or for any goods and/or services provided
hereunder.
Exhibit C-4 - Page 1 of 2
EXHIBIT C-4 – FUNDING PROVISIONS NHPP 1211-086 (21006) Cost of Work Estimate The Local Agency has estimated the total cost the Work to be $45,000,000.00, which is to be funded as follows:
1.BUDGETED FUNDS
a.Federal Funds STP-M(80% of Participating Costs)$24,960,000.00
b.Local Agency Matching Funds(20% of Participating Costs)
c.Federal Funds CMAQ(80% of Participating Costs)
d.Local Agency Matching Funds(20% of Participating Costs)
e.State (Safety)(100% of Participating Costs)
f.State (Surface)(100% of Participating Costs)
$6,240,000.00
$5,280,000.00
$1,320,000.00
$4,200,000.00
$3,000,000.00
TOTAL BUDGETED FUNDS $45,000,000.00
2.OMB UNIFORM GUIDANCE
a.Federal Award Identification Number (FAIN):TBD
b.Federal Award Date (also Phase Performance Start Date):See Below
c.Amount of Federal Funds Obligated:$5,302,144.78
d.Total Amount of Federal Award:$30,240,000.00
e.Name of Federal Awarding Agency:FHWA
f.CFDA# - Highway Planning and Construction CFDA 20.205
g.Is the Award for R&D?No
h.Indirect Cost Rate (if applicable)N/A
3.ESTIMATED PAYMENT TO LOCAL AGENCY
a.Federal Funds Budgeted $30,240,000.00
b.Less Estimated Federal Share of CDOT-Incurred Costs $0.00
TOTAL ESTIMATED PAYMENT TO LOCAL AGENCY $37,280,000.00
4.FOR CDOT ENCUMBRANCE PURPOSES
a.Total Encumbrance Amount $45,000,000.00
b.Less ROW Acquisition 3111 and/or ROW Relocation 3109 $15,000,000.00
Net to be encumbered as follows: $30,000,000.00
Exhibit C-4 - Page 2 of 2
Note: Only $5,200,000.00 in Design and $1,427,680.97 in Environmental funds are currently available. Additional funds will become available after execution of an Option letter (Exhibit B) or formal Amendment.
Performance Period Start*/End Date
WBS Element 21006.10.30 7/23/2015 / 4/30/2021 Design 3020 $5,200,000.00
WBS Element 21006.10.40 7/23/2015 / 4/30/2021 Environmental 3030 $1,427,680.97
WBS Element 21006.20.10 TBD / TBD Construction 3301 $0.00
*The Local Agency should not begin work until all three of the following are in place:
1) Phase Performance Period Start Date; 2) The execution of the document encumbering funds for the respective phase; and 3) Local Agency
receipt of the official Notice to Proceed. Any work performed before these three (3) milestones are achieved will not be reimbursable.
B.Matching FundsThe matching ratio for the federal participating funds for this Work is 80.00% federal-aid (STP-M) funds to 20.00% Local Agency funds,it being understood that such ratio applies only to the $31,200,000.00 that is eligible for federal participation, it being further understoodthat all non-participating costs are borne by the Local Agency at 100%. Also the matching ratio for the federal participating funds for thisWork is 80.00% federal-aid (CMAQ) funds to 20.00% Local Agency funds, it being understood that such ratio applies only to the$6,600,000.00 that is eligible for federal participation, it being further understood that all non-participating costs are borne by the LocalAgency at 100%. If the total participating cost of performance of the Work exceeds $6,600,000.00, and additional federal funds are madeavailable for the Work, the Local Agency shall pay 20.00% 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 totalparticipating cost of performance of the Work is less than $37,800,000.00, then the amounts of Local Agency and federal-aid funds will bedecreased in accordance with the funding ratio described herein. The performance of the Work shall be at no cost to the State.
C.Maximum Amount PayableThe maximum amount payable to the Local Agency under this Agreement shall be $25,800,000.00 (total budgeted federal funds of$37,800,000.00, minus Federal share of ROW Acquisition 3111 and/or ROW Relocation 3109 of $12,000,000.00) (for CDOT accountingpurposes, the federal funds of $25,800,000.00 and the Local Agency matching funds of $3,600,000.00 [total Local Agency Matching Funds of $6,600,000.00 minus Local Agency share of ROW Acquisition of $3,000,000.00], and the State funds of $7,200,000.00 will beencumbered for a total encumbrance of $36,600,000.00), unless such amount is increased by an appropriate written modification to thisAgreement executed before any increased cost is incurred. It is understood and agreed by the parties hereto that the total cost of the Work
stated hereinbefore is the best estimate available, based on the design data as approved at the time of execution of this Agreement, and thatsuch cost is subject to revisions (in accord with the procedure in the previous sentence) agreeable to the parties prior to bid and award.
The maximum amount payable shall be reduced without amendment when the actual amount of the Local Agency’s awarded contract is less than the budgeted total of the federal participating funds and the Local Agency matching funds. The maximum amount payable shall be reduced through the execution of an Option Letter as described in Section 7. E. of this contract.
D.Single Audit Act AmendmentAll state and local government and non-profit organizations receiving more than $750,000 from all funding sources defined as federalfinancial assistance for Single Audit Act Amendment purposes shall comply with the audit requirements of 2 CFR part 200, subpart F(Audit Requirements) see also, 49 C.F.R. 18.20 through 18.26. The Single Audit Act Amendment requirements applicable to the LocalAgency receiving federal funds are as follows:
i.Expenditure less than $750,000If the Local Agency expends less than $750,000 in Federal funds (all federal sources, not just Highway funds) in its fiscalyear then this requirement does not apply.
ii.Expenditure of $750,000 or more-Highway Funds OnlyIf the Local Agency expends $750,000 or more, in Federal funds, but only received federal Highway funds (Catalog ofFederal Domestic Assistance, CFDA 20.205) then a program specific audit shall be performed. This audit will examine the“financial” procedures and processes for this program area.
iii.Expenditure of $750,000 or more-Multiple Funding SourcesIf the Local Agency expends $750,000 or more in Federal funds, and the Federal funds are from multiple sources (FTA,HUD, NPS, etc.) then the Single Audit Act applies, which is an audit on the entire organization/entity.
iv.Independent CPASingle Audit shall only be conducted by an independent CPA, not by an auditor on staff. An audit is an allowable direct orindirect cost.
Exhibit D-1 - Page 1 of 1
EXHIBIT D-1
LOCAL AGENCY RESOLUTION (If APPLICABLE)
CDOT Form 1243 7/17 Page 1 of 4
COLORADO DEPARTMENT OF TRANSPORTATION LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST
Project No.
NHPP 1211-086
STIP No.
SR17012.0018
Project Code
21006
Region
1
Project Location Wadsworth Blvd Widening: 35th Ave to I-70 Date
07/06/2020 Project Description: Wadsworth Blvd Widening: 35th Ave to I-70
Local Agency
City of Wheat Ridge
Local Agency Project Manager
Mark Westberg CDOT Resident Engineer Maria Hajiaghaee CDOT Project Manager Joy French
INSTRUCTIONS: This checklist shall be utilized to establish the contract administration responsibilities of the individual parties to this agreement. The checklist becomes an attachment to the Local Agency agreement. Section numbers correspond to the applicable chapters of the CDOT Local Agency Manual.
The checklist shall be prepared by placing an "X" under the responsible party, opposite each of the tasks. The “X” denotes the party responsible for initiating and executing the task. Only one responsible party should be selected. When neither CDOT nor the Local Agency is responsible for a task, not applicable (NA) shall be noted. In addition, a “#” will denote that CDOT must concur or approve.
Tasks that will be performed by Headquarters staff will be indicated. The Regions, in accordance with established policies and procedures, will determine who will perform all other tasks that are the responsibility of CDOT.
The checklist shall be prepared by the CDOT Resident Engineer or the CDOT Project Manager, in cooperation with the Local Agency Project Manager, and submitted to the Region Program Engineer. If contract administration responsibilities change, the CDOT Resident Engineer, in cooperation with the Local Agency Project Manager, will prepare and distribute a revised checklist.
Note: Failure to comply with applicable Federal and State requirements may result in the loss of Federal or State participation in funding.
NO. DESCRIPTION OF TASK RESPONSIBLE PARTY LA CDOT
TIP / STIP AND LONG-RANGE PLANS
2.1 Review Project to ensure it is consistent with STIP and amendments thereto X
FEDERAL FUNDING OBLIGATION AND AUTHORIZATION
4.1 Authorize funding by phases (CDOT Form 418 - Federal-aid Program Data. Requires FHWA concurrence/involvement) X
PROJECT DEVELOPMENT
5.1 Prepare Design Data - CDOT Form 463 X # 5.2 Prepare Local Agency/CDOT Inter-Governmental Agreement (see also Chapter 3) X
5.3 Conduct Consultant Selection/Execute Consultant Agreement •Project Development
•Construction Contract Administration (including Fabrication Inspection Services)
XX #
5.4 Conduct Design Scoping Review Meeting X X
5.5 Conduct Public Involvement X
5.6 Conduct Field Inspection Review (FIR) X X 5.7 Conduct Environmental Processes (may require FHWA concurrence/involvement) X # 5.8 Acquire Right-of-Way (may require FHWA concurrence/involvement) X #
5.9 Obtain Utility and Railroad Agreements X #
5.10 Conduct Final Office Review (FOR) X X
EXHIBIT E-1 -- Local Agency Contract Administration Checklist
Previous editions are obsolete and may not be used. Exhibit E-1, Page 1 of 4
CDOT Form 1243 7/17 Page 2 of 4
Previous editions are obsolete and may not be used.
NO. DESCRIPTION OF TASK RESPONSIBLE PARTY LA CDOT
5.11 Justify Force Account Work by the Local Agency X #
5.12 Justify Proprietary, Sole Source, or Local Agency Furnished Items X #
5.13 Document Design Exceptions - CDOT Form 464 X #
5.14 Prepare Plans, Specifications, Construction Cost Estimates and Submittals X #
5.15 Ensure Authorization of Funds for Construction X
PROJECT DEVELOPMENT CIVIL RIGHTS AND LABOR COMPLIANCE
6.1 Set Disadvantaged Business Enterprise (DBE) Goals for Consultant and Construction Contracts (CDOT Region EEO/Civil Rights Specialist). X X
6.2 Determine Applicability of Davis-Bacon Act This project is is not exempt from Davis-Bacon requirements as determined by the functional classification of the project location (Projects located on local roads and rural minor collectors may be exempt.)
Maria Hajiaghaee 08/26/2019 CDOT Resident Engineer (Signature on File) Date
X
6.3 Set On-the-Job Training Goals (CDOT Region EEO/Civil Rights Specialist) X 6.4 Title VI Assurances X X Ensure the correct Federal Wage Decision, all required Disadvantaged Business Enterprise/On-the-Job Training special provisions and FHWA Form 1273 are included in the Contract (CDOT Resident Engineer)
X X
ADVERTISE, BID AND AWARD of CONSTRUCTION PROJECTS
7.1 Obtain Approval for Advertisement Period of Less Than Three Weeks X # 7.2 Advertise for Bids X
7.3 Distribute “Advertisement Set” of Plans and Specifications X
7.4 Review Worksite and Plan Details with Prospective Bidders While Project Is Under Advertisement X
7.5 Open Bids X
7.6 Process Bids for Compliance
Check CDOT Form 1415 – Commitment Confirmation when the low bidder meets DBE goals X
Evaluate CDOT Form 1416 - Good Faith Effort Report and determine if the Contractor has made a good faith effort when the low bidder does not meet DBE goals X
Submit required documentation for CDOT award concurrence X
7.7 Concurrence from CDOT to Award X
7.8 Approve Rejection of Low Bidder X
7.9 Award Contract X # 7.10 Provide “Award” and “Record” Sets of Plans and Specifications X
CONSTRUCTION MANAGEMENT
8.1 Issue Notice to Proceed to the Contractor X #
8.2 Project Safety X #
8.3 Conduct Conferences:
Pre-Construction Conference (Appendix B)
•Fabrication Inspection Notifications X
Pre-survey
•Construction staking
•Monumentation
XX
Partnering (Optional) X
Structural Concrete Pre-Pour (Agenda is in CDOT Construction Manual) X
Concrete Pavement Pre-Paving (Agenda is in CDOT Construction Manual) X
HMA Pre-Paving (Agenda is in CDOT Construction Manual) X
8.4 Develop and distribute Public Notice of Planned Construction to media and local residents X
Exhibit E-1, Page 2 of 4
CDOT Form 1243 7/17 Page 3 of 4
Previous editions are obsolete and may not be used.
NO. DESCRIPTION OF TASK RESPONSIBLE PARTY LA CDOT
8.5 Supervise Construction A Professional Engineer (PE) registered in Colorado, who will be “in responsible charge of construction supervision.” Russ Higgins 303 235-2869 Local Agency Professional Engineer or Phone number CDOT Resident Engineer
X
Provide competent, experienced staff who will ensure the Contract work is constructed in accordance with the plans and specifications X
Construction inspection and documentation X Fabrication Inspection and documentation X
8.6 Approve Shop Drawings X
8.7 Perform Traffic Control Inspections X
8.8 Perform Construction Surveying X
8.9 Monument Right-of-Way X
8.10 Prepare and Approve Interim and Final Contractor Pay Estimates. Collect and review CDOT Form 1418 (or equivalent)
Provide the name and phone number of the person authorized for this task.
Russ Higgins 303 235-2869 Local Agency Representative Phone number
8.11 Prepare and Approve Interim and Final Utility and Railroad Billings X 8.12 Prepare and Authorize Change Orders X # 8.13 Submit Change Order Package to CDOT X
8.14 Prepare Local Agency Reimbursement Requests X
8.15 Monitor Project Financial Status X
8.16 Prepare and Submit Monthly Progress Reports X
8.17 Resolve Contractor Claims and Disputes X
8.18 Conduct Routine and Random Project Reviews
Provide the name and phone number of the person responsible for this task.
Kevin Brown 720 497 6954 CDOT Resident Engineer Phone number
X
8.19 Ongoing Oversight of DBE Participation X #
MATERIALS
9.1 Discuss Materials at Pre-Construction Meeting
•Buy America documentation required prior to installation of steel X #
9.2 Complete CDOT Form 250 - Materials Documentation Record
•Generate form, which includes determining the minimum number of required tests andapplicable material submittals for all materials placed on the project
•Update the form as work progresses
•Complete and distribute form after work is completed
XX
X
9.3 Perform Project Acceptance Samples and Tests X
9.4 Perform Laboratory Verification Tests X
9.5 Accept Manufactured Products
Inspection of structural components:
•Fabrication of structural steel and pre-stressed concrete structural components
•Bridge modular expansion devices (0” to 6” or greater)
•Fabrication of bearing devices
X
XXX
9.6 Approve Sources of Materials X 9.7 Independent Assurance Testing (IAT), Local Agency Procedures CDOT Procedures
•Generate IAT schedule•Schedule and provide notification
•Conduct IAT
X X
X
Exhibit E-1, Page 3 of 4
CDOT Form 1243 7/17 Page 4 of 4
Previous editions are obsolete and may not be used.
NO. DESCRIPTION OF TASK RESPONSIBLE PARTY LA CDOT
9.8 Approve mix designs
•Concrete•Hot mix asphalt
XX XX
9.9 Check Final Materials Documentation X #
9.10 Complete and Distribute Final Materials Documentation X
CONSTRUCTION CIVIL RIGHTS AND LABOR COMPLIANCE
10.1 Fulfill Project Bulletin Board and Pre-Construction Packet Requirements X 10.2 Process CDOT Form 205 - Sublet Permit Application Review and sign completed CDOT Form 205 for each subcontractor, and submit to EEO/Civil Rights Specialist X #
10.3 Conduct Equal Employment Opportunity and Labor Compliance Verification Employee Interviews. Complete CDOT Form 280 X
10.4 Monitor Disadvantaged Business Enterprise Participation to Ensure Compliance with the
“Commercially Useful Function” Requirements
X
10.5 Conduct Interviews When Project Utilizes On-the-Job Trainees.
•Complete CDOT Form 1337 – Contractor Commitment to Meet OJT Requirements.
•Complete CDOT Form 838 – OJT Trainee / Apprentice Record.
•Complete CDOT Form 200 - OJT Training Questionnaire
XXXX
10.6 Check Certified Payrolls (Contact the Region EEO/Civil Rights Specialists for training requirements.) X
10.7 Submit FHWA Form 1391 - Highway Construction Contractor’s Annual EEO Report X
FINALS
11.1 Conduct Final Project Inspection. Complete and submit CDOT Form 1212 - Final Acceptance Report (Resident Engineer with mandatory Local Agency participation.) X
11.2 Write Final Project Acceptance Letter X #
11.3 Advertise for Final Settlement X # 11.4 Prepare and Distribute Final As-Constructed Plans X #
11.5 Prepare EEO Certification and Collect EEO Forms X #
11.6 Check Final Quantities, Plans, and Pay Estimate; Check Project Documentation; and submit Final Certifications X #
11.7 Check Material Documentation and Accept Final Material Certification (See Chapter 9) X #
11.8 Obtain CDOT Form 1419 from the Contractor and Submit to the CDOT Project Manager X #
11.9 (FHWA Form 47 discontinued) NA
11.10 Complete and Submit CDOT Form 1212 – Final Acceptance Report (by CDOT) X
11.11 Process Final Payment X X
11.12 Complete and Submit CDOT Form 950 - Project Closure X 11.13 Retain Project Records for Six Years from Date of Project Closure X X
11.14 Retain Final Version of Local Agency Contract Administration Checklist X X
cc: CDOT Resident Engineer/Project Manager CDOT Region Program Engineer CDOT Region EEO/Civil Rights Specialist CDOT Region Materials Engineer CDOT Contracts and Market Analysis Branch Local Agency Project Manager
Exhibit E-1, Page 4 of 4
Exhibit F-1 - Page 1 of 1
EXHIBIT F-1
CERTIFICATION FOR FEDERAL-AID CONTRACTS
The Local Agency certifies, by signing this Agreement, to the best of its knowledge and belief, that:
No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for
influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal loan,
the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, Agreement, loan, or cooperative agreement.
If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer of Congress, or an employee of a Member of Congress in connection with this Federal contract, Agreement, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or
entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty
of not less than $10,000 and not more than $100,000 for each such failure.
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 sub- recipients shall certify and disclose accordingly.
Exhibit G-1 - Page 1 of 1
EXHIBIT G-1
DISADVANTAGED BUSINESS ENTERPRISE
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 26. 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 the Local Agency 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 program (or a Local 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 Local Agency (sub-recipient) 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 Local Agency upon request: Business
Programs Office
Colorado Department of Transportation 2829 West Howard Place
Denver, Colorado 80204
Phone: (303) 757-9007
REVISED 1/22/98 REQUIRED BY 49 CFR PART 26
Exhibit H-1 - Page 1 of 2
EXHIBIT H-1
LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES
Title 23 Code of Federal Regulations (CFR) 172 applies to a federally funded Local Agency project agreement
administered by CDOT that involves professional consultant services. 23 CFR 172.1 states “The policies and procedures involve federally funded contracts for engineering and design related services for projects subject to the
provisions of 23 U.S.C. 112(a) and are issued to ensure that a qualified consultant is obtained through an equitable selection process, that prescribed work is properly accomplished in a timely manner, and at fair and reasonable cost”
and according to 23 CFR 172.5 “Price shall not be used as a factor in the analysis and selection phase.” Therefore, local agencies must comply with these CFR requirements when obtaining professional consultant services under a
federally funded consultant contract administered by CDOT.
CDOT has formulated its procedures in Procedural Directive (P.D.) 400.1 and the related operations guidebook titled "Obtaining Professional Consultant Services". This directive and guidebook incorporate requirements from both Federal and State regulations, i.e., 23 CFR 172 and CRS §24-30-1401 et seq. Copies of the directive and the guidebook may be obtained upon request from CDOT's Agreements and Consultant Management Unit. [Local agencies should have their own written procedures on file for each method of procurement that addresses the items in 23 CFR 172].
Because the procedures and laws described in the Procedural Directive and the guidebook are quite lengthy, the subsequent steps serve as a short-hand guide to CDOT procedures that a Local Agency must follow in obtaining professional consultant services. This guidance follows the format of 23 CFR 172. The steps are:
1.The contracting Local Agency shall document the need for obtaining professional services.
2.Prior to solicitation for consultant services, the contracting Local Agency shall develop a detailed scope ofwork and a list of evaluation factors and their relative importance. The evaluation factors are those identified inC.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 ofthe three most qualified firms and the advertising should be done in one or more daily newspapers of general
circulation.
4.The Local Agency shall not advertise any federal aid contract without prior review by the CDOT RegionalCivil Rights Office (RCRO) to determine whether the contract shall be subject to a DBE contract goal. If theRCRO determines a goal is necessary, then the Local Agency shall include the goal and the applicable provisionswithin the advertisement. The Local Agency shall not award a contract to any Contractor or Consultant withoutthe confirmation by the CDOT Civil Rights and Business Resource Center that the Contractor or Consultant hasdemonstrated good faith efforts. The Local Agency shall work with the CDOT RCRO to ensure compliance withthe established terms during the performance of the contract.
5.The Local Agency shall require that all contractors pay subcontractors for satisfactory performance of workno later than 30 days after the receipt of payment for that work from the contractor. For construction projects, thistime period shall be reduced to seven days in accordance with Colorado Revised Statute 24-91-103(2). If the LocalAgency withholds retainage from contractors and/or allows contractors to withhold retainage fromsubcontractors, such retainage provisions must comply with 49 CFR 26.29.
6.Payments to all Subconsultants shall be made within thirty days of receipt of payment from [the LocalAgency] or no later than ninety days from the date of the submission of a complete invoice from theSubconsultant, whichever occurs first. If the Consultant has good cause to dispute an amount invoiced by aSubconsultant, the Consultant shall notify [the Local Agency] no later than the required date for payment. Suchnotification shall include the amount disputed and justification for the withholding. The Consultant shallmaintain records of payment that show amounts paid to all Subconsultants. Good cause does not include theConsultant’s failure to submit an invoice to the Local Agency or to deposit payments made.
7.The analysis and selection of the consultants shall be done in accordance with CRS §24-30-1403. This section of the regulation identifies the criteria to be used in the evaluation of CDOT pre-qualified prime consultants andtheir 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,
Exhibit H-1 - Page 2 of 2
b.Approach to the Work,
c.Ability to furnish professional services.
d.Anticipated design concepts, and
e.Alternative methods of approach for furnishing the professional services. Evaluation factors for final
selection are the consultant's:
a.Abilities of their personnel,
b.Past performance,
c.Willingness to meet the time and budget requirement,
d.Location,
e.Current and projected work load,
f.Volume of previously awarded contracts, and
g. Involvement of minority consultants.
8.Once a consultant is selected, the Local Agency enters into negotiations with the consultant to obtain a fairand reasonable price for the anticipated work. Pre-negotiation audits are prepared for contracts expected to be
greater than $50,000. Federal reimbursements for costs are limited to those costs allowable under the costprinciples of 48 CFR 31. Fixed fees (profit) are determined with consideration given to size, complexity, duration,and degree of risk involved in the work. Profit is in the range of six to 15 percent of the total direct and indirectcosts.
9.A qualified Local Agency employee shall be responsible and in charge of the Work to ensure that the workbeing pursued is complete, accurate, and consistent with the terms, conditions, and specifications of the contract.At the end of Work, the Local Agency prepares a performance evaluation (a CDOT form is available) on theconsultant.
CRS §§24-30-1401 THROUGH 24-30-1408, 23 CFR PART 172, AND P.D. 400.1, PROVIDE ADDITIONAL
DETAILS FOR COMPLYING WITH THE PRECEEDING EIGHT (8) STEPS.
Exhibit -I-1 - Page 1 of 11
FHWA-1273 -- Revised May 1, 2012
EXHIBIT I-1 FEDERAL-AID CONTRACT PROVISIONS FOR CONSTRUCTION CONTRACTS
I.GeneralII.Nondiscrimination III.Nonsegregated Facilities IV.Davis-Bacon and Related Act Provisions V.Contract Work Hours and Safety Standards Act Provisions VI.Subletting or Assigning the Contract VII.Safety: Accident Prevention VIII.False Statements Concerning Highway Projects IX.Implementation of Clean Air Act and Federal Water Pollution Control ActX.Compliance with Government wide Suspension andDebarment Requirements XI.Certification Regarding Use of Contract Funds for Lobbying
ATTACHMENTS
A. Employment and Materials Preference for AppalachianDevelopment Highway System or Appalachian Local Access RoadContracts (included in Appalachian contracts only)
I.GENERAL
1.Form FHWA-1273 must be physically incorporated in eachconstruction contract funded under Title 23 (excluding emergencycontracts solely intended for debris removal). The contractor (orsubcontractor) must insert this form in each subcontract and furtherrequire its inclusion in all lower tier subcontracts (excluding purchaseorders, rental agreements and other agreements for supplies or services).
The applicable requirements of Form FHWA-1273 are incorporated by reference for work done under any purchase order, rental agreement or agreement for other services. The prime contractor shall be responsible for compliance by any subcontractor, lower-tier subcontractor or service provider.
Form FHWA-1273 must be included in all Federal-aid design- build contracts, in all subcontracts and in lower tier subcontracts (excluding subcontracts for design services, purchase orders, rental agreements and other agreements for supplies or services). The design-builder shall be responsible for compliance by any subcontractor, lower-tier subcontractor or service provider.
Contracting agencies may reference Form FHWA-1273 in bid proposal or request for proposal documents, however, the Form FHWA-1273 must be physically incorporated (not referenced) in all contracts, subcontracts and lower-tier subcontracts (excluding purchase orders, rental agreements and other agreements for supplies or services related to a construction contract).
2.Subject to the applicability criteria noted in the following sections, these contract provisions shall apply to all work performed on thecontract by the contractor's own organization and with the assistanceof workers under the contractor's immediate superintendence and toall work performed on the contract by piecework, station work, or by subcontract.
3.A breach of any of the stipulations contained in these Required ContractProvisions may be sufficient grounds for withholding of progress payments,withholding of final payment, termination of the contract, suspension/debarment or any other action determined to be appropriate by the contracting agency andFHWA.
4.Selection of Labor: During the performance of this contract, the contractorshall not use convict labor for any purpose within the limits of a constructionproject on a Federal-aid highway unless it is labor performed by convicts whoare on parole, supervised release, or probation. The term Federal-aid highwaydoes not include roadways functionally classified as local roads or rural minorcollectors.
II.NONDISCRIMINATION
The provisions of this section related to 23 CFR Part 230 are applicable to all Federal-aid construction contracts and to all related construction subcontracts of $10,000 or more. The provisions of 23 CFR Part 230 are not applicable to material supply, engineering, or architectural service contracts.
In addition, the contractor and all subcontractors must comply with the following policies: Executive Order 11246, 41 CFR 60, 29 CFR 1625-1627, Title 23 USC Section 140, the Rehabilitation Act of 1973, as amended (29 USC 794), Title VI of the Civil Rights Act of 1964, as amended, and related regulations including 49 CFR Parts 21, 26 and 27; and 23 CFR Parts 200, 230, and 633.
The contractor and all subcontractors must comply with: the requirements of the Equal Opportunity Clause in 41 CFR 60- 1.4(b) and, for all construction contracts exceeding $10,000, the Standard Federal Equal Employment Opportunity Construction Contract Specifications in 41 CFR 60-4.3.
Note: The U.S. Department of Labor has exclusive authority to determine compliance with Executive Order 11246 and the policies of the Secretary of Labor including 41 CFR 60, and 29 CFR 1625-1627. The contracting agency and the FHWA have the authority and the responsibility to ensure compliance with Title 23 USC Section 140, the Rehabilitation Act of 1973, as amended (29 USC 794), and Title VI of the Civil Rights Act of 1964, as amended, and related regulations including 49 CFR Parts 21, 26 and 27; and 23 CFR Parts 200, 230, and 633.
The following provision is adopted from 23 CFR 230, Appendix A, with appropriate revisions to conform to the U.S. Department of Labor (US DOL) and FHWA requirements.
1.Equal Employment Opportunity: Equal employment opportunity (EEO) requirements not to discriminate and to take affirmative action to assure equalopportunity as set forth under laws, executive orders, rules, regulations (28 CFR 35, 29 CFR 1630, 29 CFR 1625-1627, 41 CFR 60 and 49 CFR 27) and orders ofthe Secretary of Labor as modified by the provisions prescribed herein, andimposed pursuant to 23 U.S.C. 140 shall constitute the EEO and specificaffirmative action standards for the contractor's project activities under thiscontract. The provisions of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) set forth under 28 CFR 35 and 29 CFR 1630 areincorporated by reference in this contract. In the execution of this contract, thecontractor agrees to comply with the following minimum specific requirementactivities of EEO:
Exhibit I-1 - Page 2 of 11
a. The contractor will work with the contracting agency and theFederal Government to ensure that it has made every good faitheffort to provide equal opportunity with respect to all of its termsand conditions of employment and in their review of activitiesunder the contract.
b. The contractor will accept as its operating policy the following statement:
"It is the policy of this Company to assure that applicants areemployed, and that employees are treated during employment, without regard to their race, religion, sex, color, national origin, age or disability. Such action shall include: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship, pre-apprenticeship, and/or on-the- job training."
2.EEO Officer: The contractor will designate and make known to the contracting officers an EEO Officer who will have the responsibilityfor and must be capable of effectively administering and promoting anactive EEO program and who must be assigned adequate authority andresponsibility to do so.
3.Dissemination of Policy: All members of the contractor's staffwho are authorized to hire, supervise, promote, and dischargeemployees, or who recommend such action, or who are substantiallyinvolved in such action, will be made fully cognizant of, and willimplement, the contractor's EEO policy and contractual responsibilities to provide EEO in each grade and classification ofemployment. To ensure that the above agreement will be met, thefollowing actions will be taken as a minimum:
a. Periodic meetings of supervisory and personnel office employeeswill be conducted before the start of work and then not less often than once every six months, at which time the contractor's EEO policy and its implementation will be reviewed and explained. The meetings will be conducted by the EEO Officer.
b. All new supervisory or personnel office employees will be givena 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 minorities and women.
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 implementsuch policy will be brought to the attention of employees by means of meetings, employee handbooks, or other appropriate means.
4.Recruitment: When advertising for employees, the contractor willinclude in all advertisements for employees the notation: "An EqualOpportunity Employer." All such advertisements will be placed in publications having a large circulation among minorities and women inthe area from which the project work force would normally be derived.
a. The contractor will, unless precluded by a valid bargainingagreement, conduct systematic and direct recruitment through public and private employee referral sources likely to yield qualified minorities and women. To meet this requirement, the contractor will identify sources of potential minority group employees, and establish with such identified sources procedures whereby minority and women applicants may be referred to the contractor for employment consideration.
b. In the event the contractor has a valid bargaining agreementproviding for exclusive hiring hall referrals, the contractor is expected to observe the provisions of that agreement to the extent that the system meets the contractor's compliance with EEO contract provisions. Where implementation of such an agreement has the effect of discriminating against minorities or women, or obligates the contractor to do the same, such implementation violates Federal nondiscrimination provisions.
c. The contractor will encourage its present employees to referminorities and women as applicants for employment. Information and procedures with regard to referring such applicants will be discussed with employees.
5.Personnel Actions: Wages, working conditions, and employeebenefits shall be established and administered, and personnel actions of every type, including hiring, upgrading, promotion, transfer, demotion,layoff, and termination, shall be taken without regard to race, color,religion, sex, national origin, age or disability. The following procedures shall be followed:
a. The contractor will conduct periodic inspections of project sites to insure that working conditions and employee facilities do not indicate discriminatory treatment of project site personnel.
b. The contractor will periodically evaluate the spread of wages paid within each classification to determine any evidence of discriminatory wage practices.
c. The contractor will periodically review selected personnel actions in depth to determine whether there is evidence of 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 allegeddiscrimination made to the contractor in connection with its 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 their avenues of appeal.
6.Training and Promotion:
The contractor will assist in locating, qualifying, and increasing the skills of minorities and women who are applicants for employment or current employees. Such efforts should be aimed at developing full journey level status employees in the type of trade or job classification involved. a. Consistent with the contractor's work force requirements and aspermissible 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. In the event a special provision for training is provided under this contract, this subparagraph will be superseded as indicated in the special provision. The contracting agency may reserve training positions for persons who receive welfare assistance in accordance with 23 U.S.C. 140(a).
b. The contractor will advise employees and applicants foremployment of available training programs and entrance requirements for each.
c. The contractor will periodically review the training and promotionpotential of employees who are minorities and women and will encourage eligible employees to apply for such training and promotion.
Exhibit I - Page 3 of 11
7.Unions: If the contractor relies in whole or in part upon unions as asource of employees, the contractor will use good faith efforts to obtain the cooperation of such unions to increase opportunities for minorities and women. Actions by the contractor, either directly or through acontractor's association acting as agent, will include the procedures set forth below:
a. The contractor will use good faith efforts to develop, incooperation with the unions, joint training programs aimed toward qualifying more minorities and women for membership in the unions and increasing the skills of minorities and women so that they may qualify for higher paying employment.
b. The contractor will use good faith efforts to incorporate an EEO clause into each union agreement to the end that such union will be contractually bound to refer applicants without regard to their race, color, religion, sex, national origin, age or disability.
c. The contractor is to obtain information as to the referral practicesand policies of the labor union except that to the extent such information is within the exclusive possession of the labor union and such labor union refuses to furnish such information to the contractor, the contractor shall so certify to the contracting agency 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 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 minorities and women. The failure of a union to provide sufficient referrals (even though it is obligated to provide exclusive referrals under the terms of a collective bargaining agreement) does not relieve the contractor from the requirements of this paragraph. In the event the union referral practice prevents the contractor from meeting the obligations pursuant to Executive Order 11246, as amended, and these special provisions, such contractor shall immediately notify the contracting agency.
8.Reasonable Accommodation for Applicants / Employees withDisabilities: The contractor must be familiar with the requirements for and comply with the Americans with Disabilities Act and all rules and regulations established there under. Employers must providereasonable accommodation in all employment activities unless to doso would cause an undue hardship.
9.Selection of Subcontractors, Procurement of Materials andLeasing of Equipment: The contractor shall not discriminate on the grounds of race, color, religion, sex, national origin, age or disabilityin the selection and retention of subcontractors, including procurement of materials and leases of equipment. The contractor shall take allnecessary and reasonable steps to ensure nondiscrimination in the administration of this contract.
a. The contractor shall notify all potential subcontractors andsuppliers and lessors of their EEO obligations under this contract.
b. The contractor will use good faith efforts to ensure subcontractor compliance with their EEO obligations.
10.Assurance Required by 49 CFR 26.13(b):
a. The requirements of 49 CFR Part 26 and the State DOT’sU.S. DOT-approved DBE program are incorporated by reference.
b. The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract.
The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the contracting agency deems appropriate.
11.Records and Reports: The contractor shall keep such records asnecessary to document compliance with the EEO requirements. Suchrecords shall be retained for a period of three years following the date of the final payment to the contractor for all contract work and shall beavailable at reasonable times and places for inspection by authorizedrepresentatives of the contracting agency and the FHWA.
a. The records kept by the contractor shall document the following:
(1) The number and work hours of minority and non- minority group members and women employed in each work classification on the project;
(2) The progress and efforts being made in cooperation with unions, when applicable, to increase employment opportunities for minorities and women; and
(3) The progress and efforts being made in locating, hiring,training, qualifying, and upgrading minorities and women;
b. The contractors and subcontractors will submit an annual report to the contracting agency each July for the duration of the project, indicating the number of minority, women, and non- minority group employees currently engaged in each work classification required by the contract work. This information is to be reported on Form FHWA-1391. The staffing data should represent the project work force on board in all or any part of the last payroll period preceding the end of July. If on-the- job training is being required by special provision, the contractor will be required to collect and report training data. The employment data should reflect the work force on board during all or any part of the last payroll period preceding the end of July.
III. NONSEGREGATED FACILITIES
This provision is applicable to all Federal-aid construction contracts and to all related construction subcontracts of
$10,000 or more.
The contractor must ensure that facilities provided for employees are provided in such a manner that segregation on the basis of race, color, religion, sex, or national origin cannot result. The contractor may neither require such segregated use by written or oral policies nor tolerate such use by employee custom. The contractor's obligation extends further to ensure that its employees are not assigned to perform their services at any location, under the contractor's control, where the facilities are segregated. The term "facilities" includes waiting rooms, work areas, restaurants and other eating areas, time clocks, restrooms, washrooms, locker rooms, and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing provided for employees. The contractor shall provide separate or single- user restrooms and necessary dressing or sleeping areas to assure privacy between sexes.
IV.DAVIS-BACON AND RELATED ACT PROVISIONS
This section is applicable to all Federal-aid construction projects exceeding $2,000 and to all related subcontracts and lower-tier subcontracts (regardless of subcontract size). The requirements apply to all projects located within the right-of- way of a roadway that is functionally classified as Federal-aid highway. This excludes roadways functionally classified as local roads or rural minor collectors, which are exempt. Contracting agencies may elect to apply these requirements to other projects.
Exhibit I-1 - Page 4 of 11
The following provisions are from the U.S. Department of Labor regulations in 29 CFR 5.5 “Contract provisions and related matters” with minor revisions to conform to the FHWA- 1273 format and FHWA program requirements.
1.Minimum wages
a. All laborers and mechanics 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 issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics.
Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph 1.d. of this section; also, 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 29 CFR 5.5(a)(4). 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. The wage determination (including any additional classification and wage rates conformed under paragraph 1.b. of this section) and the Davis-Bacon poster (WH–1321) shall be posted at all 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.
b. (1) The contracting officer shall require that any class of laborersor mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met:
(i) The work to be performed by the classification requested isnot performed by a classification in the wage determination; and
(ii) The classification is utilized in the area by the construction industry; and
(iii) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.
(2)If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate(including the amount designated for fringe benefits whereappropriate), a report of the action taken shall be sent by thecontracting officer to the Administrator of the Wage and HourDivision, Employment Standards Administration, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorizedrepresentative, will approve, modify, or disapprove every additionalclassification action within 30 days of receipt and so advise thecontracting officer or will notify the contracting officer within the 30- day period that additional time is necessary.
(3)In the event the contractor, the laborers or mechanics to beemployed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Wage and Hour Administrator for determination. The Wage and Hour Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.
(4)The wage rate (including fringe benefits where appropriate)determined pursuant to paragraphs 1.b.(2) or 1.b.(3) of this section, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification.
c. Whenever the minimum wage rate prescribed in the contract for aclass of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.
d. If the contractor does not make payments to a trustee or other thirdperson, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account, assets for the meeting of obligations under the plan or program.
Exhibit I-1 - Page 5 of 11
2.Withholding
The contracting agency shall upon its own action or upon written request of an authorized representative of the Department of Labor, withhold or cause to be withheld from the contractor under this contract, or any other Federal contract with the same prime contractor, or any other federally- assisted contract subject to Davis-Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the contracting agency 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.
3.Payrolls and basic records
a. Payrolls and basic records relating thereto shall be maintained bythe contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, andsocial security number of each such worker, his or her correctclassification, hourly rates of wages paid (including rates ofcontributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of theDavis- Bacon Act), daily and weekly number of hours worked,deductions made and actual wages paid. Whenever the Secretary ofLabor has found under 29 CFR 5.5(a)(1)(iv) that the wages of anylaborer or mechanic include the amount of any costs reasonablyanticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits isenforceable, that the plan or program is financially responsible, andthat the plan or program has been communicated in writing to thelaborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits.Contractors employing apprentices or trainees under approvedprograms shall maintain written evidence of the registration ofapprenticeship programs and certification of trainee programs, theregistration of the apprentices and trainees, and the ratios and wagerates prescribed in the applicable programs.
b. (1) The contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the contracting agency. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR5.5(a)(3)(i), except that full social security numbers and homeaddresses shall not be included on weekly transmittals. Instead thepayrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee's socialsecurity number). The required weekly payroll information may besubmitted in any form desired. Optional Form WH–347 is availablefor this purpose from the Wage and Hour Division Web site athttp://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor site. The prime contractor is responsible for the submission of copiesof payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and current address of eachcovered worker, and shall provide them upon request to the contracting agency for transmission to the State DOT, the FHWA or the Wage and Hour Division of the Department of Labor for purposes of aninvestigation or audit of compliance with prevailing wagerequirements.
It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the contracting agency.
(2) Each payroll submitted shall be accompanied by a “Statement ofCompliance,” signed by the contractor or subcontractor or his or heragent who pays or supervises the payment of the persons employedunder the contract and shall certify the following:
(i) That the payroll for the payroll period contains the information required to be provided under §5.5 (a)(3) (ii) of Regulations, 29 CFR part 5, the appropriate information is being maintained under §5.5 (a)(3)(i) of Regulations, 29 CFR part 5, and that such information is correct and complete;(ii) That each 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 eitherdirectly or indirectly from the full wages earned, other than
permissible deductions as set forth in Regulations, 29 CFR part 3;
(iii) That each laborer or mechanic has been paid not less than theapplicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract.
(3) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH–347 shall satisfy the requirement for submission of the “Statement of Compliance” required by paragraph 3.b.(2) of this section.
(4) The falsification of any of the above certifications may subject thecontractor or subcontractor to civil or criminal prosecution undersection 1001 of title 18 and section 231 of title 31 of the United StatesCode.
c. The contractor or subcontractor shall make the records required underparagraph 3.a. of this section available for inspection, copying, or transcription by authorized representatives of the contracting agency, the State DOT, the FHWA, or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. Ifthe contractor or subcontractor fails to submit the required records or tomake them available, the FHWA may, after written notice to thecontractor, the contracting agency or the State DOT, take such action as may be necessary to cause the suspension of any further payment,advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be groundsfor debarment action pursuant to 29 CFR 5.12.
4.Apprentices and trainees
a. Apprentices (programs of the USDOL).
Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice.
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The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed.
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 journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination.
In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved.
b. Trainees (programs of the USDOL).
Except as provided in 29 CFR 5.16, trainees will not be 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 U.S. Department of Labor, Employment and Training Administration.
The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration.
Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices.
Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed.
In the event the Employment and Training Administration withdraws approval of a training program, the contractor 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. Equal employment opportunity.
The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30.
d. Apprentices and Trainees (programs of the U.S.DOT).
Apprentices and trainees working under apprenticeship and skill training programs which have been certified by the Secretary of Transportation as promoting EEO in connection with Federal- aid highway construction programs are not subject to the requirements of paragraph 4 of this Section IV. The straight time hourly wage rates for apprentices and trainees under such programs will be established by the particular programs. The ratio of apprentices and trainees to journeymen shall not be greater than permitted by the terms of the particular program.
5.Compliance with Copeland Act requirements. The contractor shall comply with the requirements of 29 CFR part 3, which areincorporated by reference in this contract.
6.Subcontracts. The contractor or subcontractor shall insert FormFHWA-1273 in any subcontracts and also require the subcontractors to include Form FHWA-1273 in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5.
7.Contract termination: debarment. A breach of the contract clausesin 29 CFR 5.5 may be grounds for termination of the contract, and fordebarment as a contractor and a subcontractor as provided in 29 CFR 5.12.
8.Compliance with Davis-Bacon and Related Act requirements. Allrulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this contract.
9.Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this contract shall not be subject to thegeneral disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 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 U.S. Department of Labor, or the employees or their representatives.
Exhibit I-1 - Page 7 of 11
10.Certification of eligibility.
a. By entering into this contract, the contractor certifies that neither it(nor he or she) nor any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awardedGovernment contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
b. No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR5.12(a)(1).
c. The penalty for making false statements is prescribed in the U.S.Criminal Code, 18 U.S.C. 1001.
V.CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
The following clauses apply to any Federal-aid construction contract in an amount in excess of $100,000 and subject to the overtime provisions of the Contract Work Hours and Safety Standards Act. These clauses shall be inserted in addition to the clauses required by 29 CFR 5.5(a) or 29 CFR 4.6. As used in this paragraph, the terms laborers and mechanics include watchmen and guards.
1. Overtime requirements. No contractor or subcontractorcontracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.
2. Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (1.) of thissection, the contractor and any subcontractor responsible thereforshall be liable for the unpaid wages. In addition, such contractor andsubcontractor shall be liable to the United States (in the case of workdone under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidateddamages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation ofthe clause set forth in paragraph (1.) of this section, in the sum of $10for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hourswithout payment of the overtime wages required by the clause set forth in paragraph (1.) of this section.
3. Withholding for unpaid wages and liquidated damages. The FHWA or the contacting agency shall upon its own action or uponwritten request of an authorized representative of the Department ofLabor withhold or cause to be withheld, from any moneys payable onaccount of work performed by the contractor or subcontractor underany such contract or any other Federal contract with the same primecontractor, or any other federally-assisted contract subject to theContract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to benecessary to satisfy any liabilities of such contractor or subcontractorfor unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2.) of this section.
4. Subcontracts. The contractor or subcontractor shall insert in anysubcontracts the clauses set forth in paragraph (1.) through (4.) of thissection and also a clause requiring the subcontractors to include theseclauses in any lower tier subcontracts. The prime contractor shall beresponsible for compliance by any subcontractor or lower tiersubcontractor with the clauses set forth in paragraphs (1.) through (4.)of this section.
VI.SUBLETTING OR ASSIGNING THECONTRACT
This provision is applicable to all Federal-aid construction contracts on the National Highway System.
1.The contractor shall perform with its own organization contract workamounting to not less than 30 percent (or a greater percentage ifspecified elsewhere in the contract) of the total original contract price,excluding any specialty items designated by the contracting agency.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 beperformed by the contractor's own organization (23 CFR 635.116).
a. The term “perform work with its own organization” refers toworkers employed or leased 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 or lower tier subcontractor, agents of the prime contractor, or any other assignees. The term may include payments for the costs of hiring leased employees from an employee leasing firm meeting all relevant Federal and State regulatory requirements. Leased employees may only be included in this term if the prime contractor meets all of the following conditions:
(1) the prime contractor maintains control over the supervision ofthe day-to-day activities of the leased employees; (2) the prime contractor remains responsible for the quality of the work of the leased employees; (3) the prime contractor retains all power to accept or exclude individual employees from work on the project; and (4) the prime contractor remains ultimately responsible for thepayment of predetermined minimum wages, the submission of payrolls, statements of compliance and all other Federal regulatory requirements.
b. "Specialty Items" shall be construed to be limited to work thatrequires highly specialized knowledge, abilities, or equipment not ordinarily available in the type of contracting organizations qualified and expected to bid or propose on the contract as a whole and in general are to be limited to minor components of the overall contract.
2.The contract amount upon which the requirements set forth inparagraph (1) of Section VI is computed includes the cost of material and manufactured products which are to be purchased or produced by thecontractor 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 directperformance of the work in accordance with the contract requirements,and is in charge of all construction operations (regardless of whoperforms the work) and (b) such other of its own organizational resources (supervision, management, and engineering services) as the contracting officer determines is necessary to assure the performance of the contract.
Exhibit I-1 - Page 8 of 11
4.No portion of the contract shall be sublet, assigned or otherwise disposed of except with the written consent of the contracting officer,or authorized representative, and such consent when given shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract. Written consent will be given only after the contracting agency has assured that each subcontract is evidenced inwriting and that it contains all pertinent provisions and requirements of the prime contract
5.The 30% self-performance requirement of paragraph (1) is notapplicable to design-build contracts; however, contracting agenciesmay establish their own self-performance requirements.
VII. SAFETY: ACCIDENTPREVENTION
This provision is applicable to all Federal-aid construction contracts and to all related subcontracts.
1.In the performance of this contract the contractor shall comply withall applicable Federal, State, and local laws governing safety, health,and sanitation (23 CFR 635). The contractor shall provide allsafeguards, safety devices and protective equipment and take any other needed actions as it determines, or as the contracting officer maydetermine, to be reasonably necessary to protect the life and health ofemployees on the job and the safety of the public and to protectproperty in connection with the performance of the work covered bythe contract.
2.It is a condition of this contract, and shall be made a condition ofeach subcontract, which the contractor enters into pursuant to thiscontract, that the contractor and any subcontractor shall not permit any employee, in performance of the contract, to work in surroundings orunder conditions which are unsanitary, hazardous or dangerous tohis/her health or safety, as determined under construction safety andhealth standards (29 CFR 1926) promulgated by the Secretary ofLabor, in accordance with Section 107 of the Contract Work Hoursand Safety Standards Act (40 U.S.C. 3704).
3.Pursuant to 29 CFR 1926.3, it is a condition of this contract that theSecretary of Labor or authorized representative thereof, shall have rightof entry to any site of contract performance to inspect or investigate the matter of compliance with the construction safety and health standardsand to carry out the duties of the Secretary under Section 107 of theContract Work Hours and Safety Standards Act (40 U.S.C.3704).
VIII. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS
This provision is applicable to all Federal-aid construction contracts and to all related subcontracts.
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 misrepresentation with respect to any facts related to the project is a violation of Federal law. To prevent any misunderstanding regarding the seriousness of these and similar acts, Form FHWA-1022 shall be posted on each Federal-aid highway project (23 CFR 635) in one or more places where it is readily available toall persons concerned with the project:
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 character, quality, quantity, or cost of the material used or to be used, or the quantity or quality of the work performed or to be performed, or the cost thereof in connection with the submission of plans, maps, specifications, contracts, or costs of construction on any highway or related project submitted for approval to the Secretary of Transportation; or
Whoever knowingly makes any false statement, false representation, false report or false claim with respect to the character, quality, quantity, or cost of any work performed or to be performed, or materials furnished or to be furnished, in connection with the construction of any highway or related project approved by the Secretary of Transportation; or
Whoever knowingly makes any false statement or false representation as to material fact in any statement, certificate, or report submitted pursuant to provisions of the Federal-aid Roads Act approved July 1, 1916, (39 Stat. 355), as amended and supplemented;
Shall be fined under this title or imprisoned not more than 5 years or both."
IX. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERALWATER POLLUTION CONTROLACT
This provision is applicable to all Federal-aid construction contracts and to all related subcontracts.
By submission of this bid/proposal or the execution of this contract, or subcontract, as appropriate, the bidder, proposer, Federal-aid construction contractor, or subcontractor, as appropriate, will be deemed to have stipulated as follows:
1.That any person who is or will be utilized in the performance of thiscontract is not prohibited from receiving an award due to a violation of Section 508 of the Clean Water Act or Section 306 of the Clean Air Act.2.That the contractor agrees to include or cause to be included therequirements of paragraph (1) of this Section X in every subcontract, and further agrees to take such action as the contracting agency maydirect as a means of enforcing such requirements.
X.CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION
This provision is applicable to all Federal-aid construction contracts, design-build contracts, subcontracts, lower-tier subcontracts, purchase orders, lease agreements, consultant contracts or any other covered transaction requiring FHWA approval or that is estimated to cost $25,000 or more – as defined in 2 CFR Parts 180 and 1200.
1.Instructions for Certification – First Tier Participants:
a. By signing and submitting this proposal, the prospective first tier 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 coveredtransaction. The prospective first tier participant shall submit an
explanation of why it cannot provide the certification set out below.
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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 first tier 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 contracting agency determined to enter into this transaction. If it is later determinedthat the prospective participant knowingly rendered an erroneouscertification, in addition to other remedies available to the FederalGovernment, the contracting agency may terminate thistransaction for cause of default.
d. The prospective first tier participant shall provide immediatewritten notice to the contracting agency to whom this proposal issubmitted if any time the prospective first tier participant learnsthat its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.
e. The terms "covered transaction," "debarred," "suspended,""ineligible," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180and 1200. “First Tier Covered Transactions” refers to anycovered transaction between a grantee or subgrantee of Federalfunds and a participant (such as the prime or general contract).“Lower Tier Covered Transactions” refers to any coveredtransaction under a First Tier Covered Transaction (such assubcontracts). “First Tier Participant” refers to the participantwho has entered into a covered transaction with a grantee or subgrantee of Federal funds (such as the prime or general contractor). “Lower Tier Participant” refers any participant whohas entered into a covered transaction with a First TierParticipant or other Lower Tier Participants (such assubcontractors and suppliers).
f. The prospective first tier participant agrees by submitting thisproposal that, should the proposed covered transaction be enteredinto, it shall not knowingly enter into any lower tier coveredtransaction with a person who is debarred, suspended, declaredineligible, or voluntarily excluded from participation in thiscovered transaction, unless authorized by the department or agency entering into this transaction.
g. The prospective first tier participant further agrees by submitting this proposal that it will include the clause titled "CertificationRegarding Debarment, Suspension, Ineligibility and VoluntaryExclusion-Lower Tier Covered Transactions," provided by thedepartment or contracting agency, entering into this coveredtransaction, without modification, in all lower tier coveredtransactions and in all solicitations for lower tier coveredtransactions exceeding the $25,000 threshold.
h. A participant in a covered transaction may rely upon acertification of a prospective participant in a lower tier coveredtransaction that is not debarred, suspended, ineligible, orvoluntarily excluded from the covered transaction, unless itknows that the certification is erroneous. A participant isresponsible for ensuring that its principals are not suspended,debarred, or otherwise ineligible to participate in coveredtransactions. To verify the eligibility of its principals, as well asthe eligibility of any lower tier prospective participants, eachparticipant may, but is not required to, check the Excluded Parties List System website (https://www.epls.gov/), which iscompiled by the General Services Administration.
i. Nothing contained in the foregoing shall be construed to require the establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge andinformation of the prospective participant is not required to exceedthat which is normally possessed by a prudent person in the ordinary course of business dealings.
j. Except for transactions authorized under paragraph (f) of theseinstructions, if a participant in a covered transaction knowinglyenters into a lower tier covered transaction with a person who issuspended, debarred, ineligible, or voluntarily excluded fromparticipation in this transaction, in addition to other remediesavailable to the Federal Government, the department or agency may terminate this transaction for cause or default.
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2.Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion – First Tier Participants:
a.The prospective first tier participant certifies to the best of itsknowledge and belief, that it and its principals:
(1)Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency;
(2)Have not within a three-year period preceding this proposalbeen convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property;
(3)Are not presently indicted 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(a)(2) of this certification; and
(4)Have not within a three-year period preceding thisapplication/proposal had one or more public transactions (Federal, State or local) terminated for cause or default.
b.Where the prospective participant is unable to certify to any of thestatements in this certification, such prospective participant shall attach an explanation to this proposal.
2. Instructions for Certification - Lower Tier Participants:
(Applicable to all subcontracts, purchase orders and other lower tier transactions requiring prior FHWA approval or estimated to cost $25,000 or more - 2 CFR Parts 180 and 1200)
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 factupon 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.
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c. The prospective lower tier participant shall provide immediatewritten 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," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180 and 1200. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations. “First Tier Covered Transactions” refers to any covered transaction between a grantee or subgrantee of Federal funds and a participant (such as the prime or general contract). “Lower Tier Covered Transactions” refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). “First Tier Participant” refers to the participant who has entered into a covered transaction with a grantee or subgrantee of Federal funds (such as the prime or general contractor). “Lower Tier Participant” refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers).
e. The prospective lower tier participant agrees by submitting thisproposal 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.
f. The prospective lower tier participant further agrees bysubmitting 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 transactionsexceedingthe$25,000 threshold.
g. A participant in a covered transaction may rely upon acertification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the Excluded Parties List System website (https://www.epls.gov/), which is compiled by the General Services Administration.
h. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
Except for transactions authorized under paragraph e of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or 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.
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Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion--Lower Tier Participants:
1.The prospective lower tier participant certifies, by submission ofthis proposal, that neither it nor its principals is presently debarred,suspended, proposed for debarment, declared ineligible, or voluntarilyexcluded from participating in covered transactions by any Federaldepartment or agency.
2.Where the prospective lower tier participant is unable to certify toany of the statements in this certification, such prospective participantshall attach an explanation to this proposal.
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XI. CERTIFICATION REGARDING USE OF CONTRACT FUNDS FOR LOBBYING
This provision is applicable to all Federal-aid construction contracts and to all related subcontracts which exceed $100,000 (49 CFR 20).
1.The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that:
a. No Federal appropriated funds have been paid or will be paid, byor on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
b. If any funds other than Federal appropriated funds have been paidor will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
2.This certification is a material representation of fact upon whichreliance 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 failsto file the required certification shall be subject to a civil penalty of notless than $10,000 and not more than $100,000 for each such failure.
3.The prospective participant also agrees by submitting its bid or proposal that the participant shall require that the language of thiscertification be included in all lower tier subcontracts, which exceed$100,000 and that all such recipients shall certify and discloseaccordingly.
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ATTACHMENT A - EMPLOYMENT AND MATERIALS PREFERENCE FOR APPALACHIAN DEVELOPMENT HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS ROAD CONTRACTS This provision is applicable to all Federal-aid projects funded under the Appalachian Regional Development Act of1965.
1.During the performance of this contract, the contractorundertaking to do work which is, or reasonably may be, done as on-site work, shall give preference to qualified persons who regularly residein the labor area as designated by the DOL wherein the contract workis situated, or the subregion, or the Appalachian counties of the State wherein the contract work is situated, except:
a.To the extent that qualified persons regularly residing in the area are not available.
b.For the reasonable needs of the contractor to employ supervisory or specially experienced personnel necessary to assure an efficient execution of the contract work.
c.For the obligation of the contractor to offer employment to present or former employees as the result of a lawful collective bargaining contract, provided that the number of nonresident persons employed under this subparagraph (1c) shall not exceed 20 percent of the total number of employees employed by the contractor on the contract work, except as provided in subparagraph (4) below.
2.The contractor shall place a job order with the State EmploymentService indicating (a) the classifications of the laborers, mechanics and other employees required to perform the contract work, (b) the number of employees required in each classification, (c) the date on which the participant estimates such employees will be required, and (d) any other pertinent information required by the State Employment Service tocomplete the job order form. The job order may be placed with the State Employment Service in writing or by telephone. If during the course of the contract work, the information submitted by the contractor in the original job order is substantially modified, the participant shallpromptly notify the State Employment Service.
3.The contractor shall give full consideration to all qualified jobapplicants referred to him by the State Employment Service. Thecontractor is not required to grant employment to any job applicants who, in his opinion, are not qualified to perform the classification ofwork required.
4.If, within one week following the placing of a job order by thecontractor with the State Employment Service, the State EmploymentService is unable to refer any qualified job applicants to the contractor, or less than the number requested, the State Employment Service willforward a certificate to the contractor indicating the unavailability ofapplicants. Such certificate shall be made a part of the contractor's permanent project records. Upon receipt of this certificate, thecontractor may employ persons who do not normally reside in the laborarea to fill positions covered by the certificate, notwithstanding theprovisions of subparagraph(1c) above.
5.The provisions of 23 CFR 633.207(e) allow the contracting agency to provide a contractual preference for the use of mineral resourcematerials native to the Appalachian region.
6.The contractor shall include the provisions of Sections 1 through 4 of this Attachment A in every subcontract for work which is, or reasonably may be, done as on-site work.
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EXHIBIT J
ADDITIONAL FEDERAL REQUIREMENTS
Federal laws and regulations that may be applicable to the Work include:
Executive Order 11246 Executive Order 11246 of September 24, 1965 entitled "Equal Employment Opportunity," as amended by Executive Order 11375 of October 13, 1967 and as supplemented in Department of Labor regulations (41 CFR Chapter 60) (All construction contracts awarded in excess of $10,000 by the Local Agencys and their contractors or the Local Agencys).
Copeland "Anti-Kickback" Act The Copeland "Anti-Kickback" Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29 CFR Part 3) (All contracts and sub-Agreements for construction or repair).
Davis-Bacon Act The Davis-Bacon Act (40 U.S.C. 276a to a-7) as supplemented by Department of Labor regulations (29 CFR Part 5) (Construction contracts in excess of $2,000 awarded by the Local Agencys and the Local Agencys when required by Federal Agreement program legislation. This act requires that all laborers and mechanics employed by contractors or sub-contractors to work on construction projects financed by federal assistance must be paid wages not less than those established for the locality of the project by the Secretary of Labor).
Contract Work Hours and Safety Standards Act Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-330) as supplemented by Department of Labor regulations (29 CFR Part 5). (Construction contracts awarded by the Local Agency’s in excess of $2,000, and in excess of $2,500 for other contracts which involve the employment of mechanics or laborers).
Clear Air Act Standards, orders, or requirements issued under section 306 of the Clear Air Act (42 U.S.C. 1857(h), section 508 of the Clean Water Act (33 U.S.C. 1368). Executive Order 11738, and Environmental Protection Agency regulations (40 CFR Part 15) (contracts, subcontracts, and sub-Agreements of amounts in excess of $100,000).
Energy Policy and Conservation Act Mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94-163).
OMB Circulars Office of Management and Budget Circulars A-87, A-21 or A-122, and A-102 or A-110, whichever is applicable.
Hatch Act The Hatch Act (5 USC 1501-1508) and Public Law 95-454 Section 4728. These statutes state that federal funds cannot be used for partisan political purposes of any kind by any person or organization involved in the administration of federally-assisted programs.
Nondiscrimination The Local Agency shall not exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States on the ground of race, color national origin, sex, age or disability. Prior to the
receipt of any Federal financial assistance from CDOT, the Local Agency shall execute the attached Standard DOT Title VI assurance. As appropriate, the Local Agency shall include Appendix A, B, or C to the Standard
DOT Title VI assurance in any contract utilizing federal funds, land or other aid. The Local Agency shall also include the following in all contract advertisements:
The [Local Agency], in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (79 Stat. 252, 42 US.C. §§ 2000d to 2000d-4) and the Regulations, hereby notifies
all bidders that it will affirmatively ensure that any contract entered into pursuant to this advertisement, DBEs will be afforded full and fair opportunity to submit bids in response
to this invitation and will not be discriminated against on the grounds of race, color, or national origin in consideration for any award.
Exhibit J-1 - Page 2 of 11
ADA In any contract utilizing federal funds, land, or other federal aid, the Local Agency shall require the federal-
aid recipient or contractor to provide a statement of written assurance that they will comply with Section 504 and not discriminate on the basis of disability.
Uniform Relocation Assistance and Real Property Acquisition Policies Act The Uniform Relocation Assistance and Real Property Acquisition Policies Act, as amended (Public Law 91- 646, as amended and Public Law 100-17, 101 Stat. 246-256). (If the contractor is acquiring real property and displacing households or businesses in the performance of the Agreement).
Drug-Free Workplace Act The Drug-Free Workplace Act (Public Law 100-690 Title V, subtitle D, 41 USC 701 et seq.).
Age Discrimination Act of 1975 The Age Discrimination Act of 1975, 42 U.S.C. Sections 6101 et. seq. and its implementing regulation, 45 C.F.R. Part 91; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, as amended, and implementingregulation 45 C.F.R. Part 84.
23 C.F.R. Part 172 23 C.F.R. Part 172, concerning "Administration of Engineering and Design Related Contracts".
23 C.F.R Part 633 23 C.F.R Part 633, concerning "Required Contract Provisions for Federal-Aid Construction Contracts".
23 C.F.R. Part 635 23 C.F.R. Part 635, concerning "Construction and Maintenance Provisions".
Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973 Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973. The requirements for which are shown in the Nondiscrimination Provisions, which are attached hereto and made a part hereof.
Nondiscrimination Provisions: In compliance with Title VI of the Civil Rights Act of 1964 and with Section 162(a) of the Federal Aid Highway Act of 1973, the Contractor, for itself, its assignees and successors in interest, agree as follows:
i.Compliance with RegulationsThe Contractor will comply with the Regulations of the Department of Transportation relative to nondiscrimination in Federally assisted programs of the Department of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the "Regulations"), which are herein incorporated by reference and made a part of this Agreement.
ii.NondiscriminationThe Contractor, with regard to the work performed by it after award and prior to completion of the contract work, will not discriminate on the ground of race, color, sex, mental or physical handicap or national origin in the selection and retention of Subcontractors, including procurement of materials and leases of equipment. The Contractor will not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix C of the Regulations. iii.Solicitations for Subcontracts, Including Procurement of Materials and EquipmentIn all solicitations either by competitive bidding or negotiation made by the Contractor for work to beperformed under a subcontract, including procurement of materials or equipment, each potential Subcontractor or supplier shall be notified by the Contractor of the Contractor's obligations under this Agreement and the Regulations relative to nondiscrimination on the ground of race, color, sex, mental or physical handicap or national origin.
iv.Information and ReportsThe Contractor will provide all information and reports required by the Regulations, or orders andinstructions 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.
Exhibit J-1 - Page 3 of 11
v.Sanctions for NoncomplianceIn the event of the Contractor's noncompliance with the nondiscrimination provisions of this
Agreement, the State shall impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: a. Withholding of payments to the Contractor under the
contract until the Contractor complies, and/or b. Cancellation, termination or suspension of the contract, in whole or in part.
Incorporation of Provisions §22 The Contractor will include the provisions of this Exhibit J in every subcontract, including procurement of materials and leases of equipment, unless exempt by the Regulations, orders, or instructions issued pursuant
thereto. The Contractor will take such action with respect to any subcontract or procurement as the State or the FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance; provided,
however, that, in the event the Contractor becomes involved in, or is threatened with, litigation with a Subcontractor or supplier as a result of such direction, the Contractor may request the State to enter into such
litigation to protect the interest of the State and in addition, the Contractor may request the FHWA to enter into such litigation to protect the interests of the United States.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
Exhibit J-1 - Page 4 of 11
SAMPLE
The United States Department of Transportation (USDOT) Standard Title VI/Non-Discrimination
Assurances for Local Agencies
DOT Order No. 1050.2A
The [Local Agency] (herein referred to as the "Recipient"), HEREBY AGREES THAT, as a condition to receiving any Federal financial assistance from the U.S. Department of Transportation (DOT), through the Colorado Department of Transportation and the Federal Highway Administration (FHWA), Federal Transit Administration (FTA), and Federal Aviation Administration (FAA), is subject to and will comply with the following:
Statutory/Regulatory Authorities
•Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin);
•49 C.F.R. Part 21 (entitled Non-discrimination In Federally-Assisted Programs Of The Department OfTransportation-Effectuation Of Title VI Of The Civil Rights Act Of 1964);•28 C.F.R. section 50.3 (U.S. Department of Justice Guidelines for Enforcement of Title VI of the Civil Rights
Act of 1964);
The preceding statutory and regulatory cites hereinafter are referred to as the "Acts" and "Regulations," respectively.
General Assurances
In accordance with the Acts, the Regulations, and other pertinent directives, circulars, policy, memoranda, and/or guidance, the Recipient hereby gives assurance that it will promptly take any measures necessary to ensure that:
"No person in the United States shall, on the grounds of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity, "for which the Recipient receives Federal financial assistance from DOT, including the FHWA, FTA, or FAA.
The Civil Rights Restoration Act of 1987 clarified the original intent of Congress, with respect to Title VI and other Non-discrimination requirements (The Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973), by restoring the broad, institutional-wide scope and coverage of these non- discrimination statutes and
requirements to include all programs and activities of the Recipient, so long as any portion of the program is Federally assisted.
Specific Assurances
More specifically, and without limiting the above general Assurance, the Recipient agrees with and gives the following Assurances with respect to its Federally assisted FHWA, FTA, and FAA assisted programs: 1.The Recipient agrees that each "activity," "facility," or "program," as defined in §§ 21.23(b) and 21.23(e) of49 C.F.R. § 21 will be (with regard to an "activity") facilitated, or will be (with regard to a "facility") operated,or will be (with regard to a "program") conducted in compliance with all requirements imposed by, or pursuantto the Acts and the Regulations.2.The Recipient will insert the following notification in all solicitations for bids, Requests For Proposals for work,or material subject to the Acts and the Regulations made in connection with all FHWA, FTA and FAA programsand, in adapted form, in all proposals for negotiated agreements regardless of funding source:
3."The [Local Agency] in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat.
252, 42 US.C. §§ 2000d to 2000d-4) and the Regulations, hereby notifies all bidders that it will affirmatively
ensure that any contract entered into pursuant to this advertisement, disadvantaged business enterprises will
be afforded full and fair opportunity
Exhibit J-1 - Page 5 of 11
4.to submit bids in response to this invitation and will not be discriminated against on the grounds of
race, color, or national origin in consideration for an award."
5.The Recipient will insert the clauses of Appendix A and E of this Assurance in every contract or agreementsubject to the Acts and the Regulations.
6.The Recipient will insert the clauses of Appendix B of this Assurance, as a covenant running with the land,in any deed from the United States effecting or recording a transfer of real property, structures, use, or
improvements thereon or interest therein to a Recipient.
7.That where the Recipient receives Federal financial assistance to construct a facility, or part of a facility,the Assurance will extend to the entire facility and facilities operated in connection therewith.
8.That where the Recipient receives Federal financial assistance in the form, or for the acquisition of realproperty or an interest in real property, the Assurance will extend to rights to space on, over, or under suchproperty.
9.That the Recipient will include the clauses set forth in Appendix C and Appendix D of this Assurance, as acovenant running with the land, in any future deeds, leases, licenses, permits, or similar instruments entered
into by the Recipient with other parties:
a.for the subsequent transfer of real property acquired or improved under the applicable activity, project,or program; and
b.for the construction or use of, or access to, space on, over, or under real property acquired or improvedunder the applicable activity, project, or program.
10.That this Assurance obligates the Recipient for the period during which Federal financial assistance isextended to the program, except where the Federal financial assistance is to provide, or is in the form of,personal property, or real property, or interest therein, or structures or improvements thereon, in which casethe Assurance obligates the Recipient, or any transferee for the longer of the following periods:
a.the period during which the property is used for a purpose for which the Federal financial assistance isextended, or for another purpose involving the provision of similar services or benefits; orb.the period during which the Recipient retains ownership or possession of the property.
11.The Recipient will provide for such methods of administration for the program as are found by the Secretary
of Transportation or the official to whom he/she delegates specific authority to give reasonable guaranteethat it, other recipients, sub-recipients, sub-grantees, contractors, subcontractors, consultants, transferees,
successors in interest, and other participants of Federal financial assistance under such program will complywith all requirements imposed or pursuant to the Acts, the Regulations, and this Assurance.
12.The Recipient agrees that the United States has a right to seek judicial enforcement with regard to any
matter arising under the Acts, the Regulations, and this Assurance.
By signing this ASSURANCE, the [Local Agency] also agrees to comply (and require any sub-recipients, sub- grantees, contractors, successors, transferees, and/or assignees to comply) with all applicable provisions governing
the FHWA, FTA, and FAA’s access to records, accounts, documents, information, facilities, and staff. You also recognize that you must comply with any program or compliance reviews, and/or complaint investigations
conducted by CDOT, FHWA, FTA, or FAA. You must keep records, reports, and submit the material for review
Exhibit J-1 - Page 6 of 11
upon request to CDOT, FHWA, FTA, or FAA, or its designee in a timely, complete, and accurate way. Additionally, you must comply with all other reporting, data collection, and evaluation requirements, as prescribed by law or detailed in program guidance.
[Local Agency] gives this ASSURANCE in consideration of and for obtaining any Federal grants, loans, contracts, agreements, property, and/or discounts, or other Federal-aid and Federal financial assistance extended after the date hereof to the recipients by the U.S. Department of Transportation under the FHWA, FTA, and FAA. This ASSURANCE is binding on [Local Agency], other recipients, sub-recipients, sub-grantees, contractors, subcontractors and their subcontractors', transferees, successors in interest, and any other participants in the FHWA, FTA, and FAA funded programs. The person(s) signing below is authorized to sign this ASSURANCE on behalf of the Recipient.
(Name of Recipient)
by (Signature of Authorized Official)
DATED
Exhibit J-1 - Page 7 of 11
APPENDIX A
During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees as follows:
1.Compliance with Regulations: The contractor (hereinafter includes consultants) will comply with the Actsand the Regulations relative to Non-discrimination in Federally-assisted programs of the U.S. Department ofTransportation, FHWA, as they may be amended from time to time, which are herein incorporated by referenceand made a part of this contract.
2.Non-discrimination: The contractor, with regard to the work performed by it during the contract, will notdiscriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors,including procurements of materials and leases of equipment. The contractor will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations, including employment practiceswhen the contract covers any activity, project, or program set forth in Appendix B of 49 CFR Part 21.
3.Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations,either by competitive bidding, or negotiation made by the contractor for work to be performed under asubcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the contractor of the contractor's obligations under this contract and the Acts andthe Regulations relative to Non-discrimination on the grounds of race, color, or national origin.
4.Information and Reports: The contractor will provide all information and reports required by the Acts, theRegulations, and directives 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 [Local Agency], CDOT or FHWA to bepertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information
required of a contractor is in the exclusive possession of another who fails or refuses to furnish theinformation, the contractor will so certify to the [Local Agency], CDOT or FHWA, as appropriate, and willset forth what efforts it has made to obtain the information.
5.Sanctions for Noncompliance: In the event of a contractor's noncompliance with the Non- discriminationprovisions of this contract, the [Local Agency] will impose such contract sanctions as it, CDOT or FHWAmay determine to be appropriate, including, but not limited to:
a.withholding payments to the contractor under the contract until the contractor complies; and/orb.cancelling, terminating, or suspending a contract, in whole or in part.
6.Incorporation of Provisions: The contractor will include the provisions of paragraphs one through six inevery subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts,
the Regulations and directives issued pursuant thereto. The contractor will take action with respect to anysubcontract or procurement as the Recipient or the [Local Agency], CDOT or FHWA may direct as a means
of enforcing such provisions including sanctions for noncompliance. Provided, that if the contractor becomesinvolved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, thecontractor may request the Recipient to enter into any litigation to protect the interests of the Recipient. In addition, the contractor may request the United States to enter into the litigation to protect the interests of the
United States.
APPENDIX B
CLAUSES FOR DEEDS TRANSFERRING UNITED STATES PROPERTY
The following clauses will be included in deeds effecting or recording the transfer of real property, structures, or improvements thereon, or granting interest therein from the United States pursuant to the provisions of Assurance 4:
NOW, THEREFORE, the U.S. Department of Transportation as authorized by law and upon the condition that the [Local Agency] will accept title to the lands and maintain the project constructed thereon in accordance with (Name of
Appropriate Legislative Authority), the Regulations for the Administration of (Name of Appropriate Program), and the policies and procedures prescribed by the FHWA of the U.S. Department of Transportation in accordance and in
compliance with all requirements imposed by Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the
U.S Department of Transportation pertaining to and effectuating the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. § 2000d to 2000d-4), does hereby remise, release, quitclaim and convey unto the [Local
Agency] all the right, title and interest of the U.S. Department of Transportation in and to said lands described in Exhibit A attached hereto and made a part hereof.
(HABENDUM CLAUSE)
TO HAVE AND TO HOLD said lands and interests therein unto [Local Agency] and its successors forever, subject, however, to the covenants, conditions, restrictions and reservations herein contained as follows, which will remain in effect for the period during which the real property or structures are used for a purpose for which Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits and will be binding on the [Local Agency] its successors and assigns.
The [Local Agency], in consideration of the conveyance of said lands and interests in lands, does hereby covenant and agree as a covenant running with the land for itself, its successors and assigns, that (1) no person will on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination with regard to any facility located wholly or in part on, over, or under such lands hereby conveyed [,] [and]* (2) that the [Local Agency] will use the lands and interests in lands and interests in lands so conveyed, in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation, Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations and Acts may be amended [, and (3) that in the event of breach of any of the above-mentioned non-discrimination conditions, the Department will have a right to enter or re-enter said lands and facilities on said land, and that above described land and facilities will thereon revert to and vest in and become the absolute property of the U.S. Department of Transportation and its assigns as such interest existed prior to this instruction].*
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.)
Exhibit J-1 - Page 8 of 11
Exhibit J-1 - Page 9 of 11
APPENDIX C
CLAUSES FOR TRANSFER OF REAL PROPERTY ACQUIRED OR IMPROVED UNDER THE ACTIVITY, FACILITY, OR PROGRAM
The following clauses will be included in deeds, licenses, leases, permits, or similar instruments entered into by the [Local Agency] pursuant to the provisions of Assurance 7(a):
A.The (grantee, lessee, permittee, etc. as appropriate) for himself/herself, his/her heirs, personal representatives,successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree [in thecase of deeds and leases add "as a covenant running with the land"] that:
1.In the event facilities are constructed, maintained, or otherwise operated on the property described in this (deed,license, lease, permit, etc.) for a purpose for which a U.S. Department of Transportation activity, facility, orprogram is extended or for another purpose involving the provision of similar services or benefits, the (grantee,licensee, lessee, permittee, etc.) will maintain and operate such facilities and services in compliance with allrequirements imposed by the Acts and Regulations (as may be amended) such that no person on the groundsof race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwisesubjected to discrimination in the use of said facilities.
B.With respect to licenses, leases, permits, etc., in the event of breach of any of the above Non-discriminationcovenants, [Local Agency] will have the right to terminate the (lease, license, permit, etc.) and to enter, re-enter,and repossess said lands and facilities thereon, and hold the same as if the (lease, license, permit, etc.) had neverbeen made or issued. *
C.With respect to a deed, in the event of breach of any of the above Non-discrimination covenants, the [Local Agency]will have the right to enter or re-enter the lands and facilities thereon, and the above described lands and facilitieswill there upon revert to and vest in and become the absolute property of the [Local Agency] and its assigns. *
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.)
Exhibit J-1 - Page 10 of 11
APPENDIX D
CLAUSES FOR CONSTRUCTION/USE/ACCESS TO REAL PROPERTY ACQUIRED UNDER THE ACTIVITY, FACILITY OR PROGRAM
The following clauses will be included in deeds, licenses, permits, or similar instruments/agreements entered into by
[Local Agency] pursuant to the provisions of Assurance 7(b):
A.The (grantee, licensee, permittee, etc., as appropriate) for himself/herself, his/her heirs, personal representatives,successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree (in thecase of deeds and leases add, "as a covenant running with the land") that (1) no person on the ground of race,color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjectedto discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or undersuch land, and the furnishing of services thereon, no person on the ground of race, color, or national origin, willbe excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, (3) that the(grantee, licensee, lessee, permittee, etc.) will use the premises in compliance with all other requirements imposedby or pursuant to the Acts and Regulations, as amended, set forth in this Assurance.
B.With respect to (licenses, leases, permits, etc.), in the event of breach of any of the above Non- discriminationcovenants, [Local Agency] will have the right to terminate the (license, permit, etc., as appropriate) and to enter
or re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, permit, etc., asappropriate) had never been made or issued. *
C.With respect to deeds, in the event of breach of any of the above Non-discrimination covenants, [Local Agency]
will there upon revert to and vest in and become the absolute property of [Local Agency] of Transportation and itsassigns. *
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.)
Exhibit J-1 - Page 11 of 11
APPENDIX E
During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees to comply with the following non-discrimination statutes and authorities; including but not limited to:
Pertinent Non-Discrimination Authorities:
•Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination onthe basis of race, color, national origin); and 49 CFR Part 21.
•The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601),(prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal orFederal-aid programs and projects);
•Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of sex);
•Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discriminationon the basis of disability); and 49 CFR Part 27;
•The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the
basis of age);
•Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as amended, (prohibitsdiscrimination based on race, creed, color, national origin, or sex);
•The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability ofTitle VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of theRehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all ofthe programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programsor activities are Federally funded or not);
•Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disabilityin the operation of public entities, public and private transportation systems, places of public accommodation,and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportationregulations at 49 C.F.R. parts 37 and 38;
•The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) (prohibitsdiscrimination on the basis of race, color, national origin, and sex);
•Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures discrimination against minority populations by discouraging programs,policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations;
•Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, andresulting agency guidance, national origin discrimination includes discrimination because of Limited Englishproficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEPpersons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
•Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating becauseof sex in education programs or activities (20 U.S.C. 1681 et seq).
Exhibit K-1 - Page 1 of 4
EXHIBIT K
FFATA SUPPLEMENTAL FEDERAL PROVISIONS
State of Colorado Supplemental Provisions for Federally Funded Contracts, Grants, and Purchase Orders Subject to The Federal Funding Accountability and Transparency Act of 2006 (FFATA), As Amended Revised as of 3-20-13
The contract, grant, or purchase order to which these Supplemental Provisions are attached has been funded, in whole or in part, with an Award of Federal funds. In the event of a conflict between the provisions of these Supplemental Provisions, the Special Provisions, the contract or any attachments or exhibits incorporated into and made a part of the contract, the provisions of these Supplemental Provisions shall control.
1.Definitions. For the purposes of these Supplemental Provisions, the following terms shall have the meaningsascribed to them below.
1.1. “Award” means an award of Federal financial assistance that a non-Federal Entity receives or administersin the form of:
1.1.1. Grants; 1.1.2. Contracts; 1.1.3. Cooperative agreements, which do not include cooperative research and development agreements (CRDA) pursuant to the Federal Technology Transfer Act of 1986, as amended (15 U.S.C. 3710); 1.1.4. Loans; 1.1.5. Loan Guarantees; 1.1.6. Subsidies; 1.1.7. Insurance; 1.1.8. Food commodities; 1.1.9. Direct appropriations; 1.1.10. Assessed and voluntary contributions; and 1.1.11. Other financial assistance transactions that authorize the expenditure of Federal funds by non- Federal Entities.
Award does not include:
1.1.12. Technical assistance, which provides services in lieu of money; 1.1.13. A transfer of title to Federally-owned property provided in lieu of money; even if the award is
called a grant; 1.1.14. Any award classified for security purposes; or 1.1.15. Any award funded in whole or in part with Recovery funds, as defined in section 1512 of the American Recovery and Reinvestment Act (ARRA) of 2009 (Public Law 111-5).
1.2. “Contract” means the contract to which these Supplemental Provisions are attached and includes all Award types in §1.1.1 through 1.1.11 above.
1.3. “Contractor” means the party or parties to a Contract funded, in whole or in part, with Federal financial assistance, other than the Prime Recipient, and includes grantees, subgrantees, Subrecipients, and borrowers. For purposes of Transparency Act reporting, Contractor does not include Vendors.
1.4. “Data Universal Numbering System (DUNS) Number” means the nine-digit number established and assigned by Dun and Bradstreet, Inc. to uniquely identify a business entity. Dun and Bradstreet’s website may be found at: http://fedgov.dnb.com/webform.
1.5. “Entity” means all of the following as defined at 2 CFR part 25, subpart C;
1.5.1. A governmental organization, which is a State, local government, or Indian Tribe; 1.5.2. A foreign public entity; 1.5.3. A domestic or foreign non-profit organization;
Exhibit K-1 - Page 2 of 4
1.5.4. A domestic or foreign for-profit organization; and 1.5.5. A Federal agency, but only a Subrecipient under an Award or Subaward to a non-Federal entity.
1.6. “Executive” means an officer, managing partner or any other employee in a management position.
1.7. “Federal Award Identification Number (FAIN)” means an Award number assigned by a Federal agency to a Prime Recipient.
1.8. “FFATA” means the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109- 282), as amended by §6202 of Public Law 110-252. FFATA, as amended, also is referred to as the “Transparency Act.”
1.9. “Prime Recipient” means a Colorado State agency or institution of higher education that receives an Award.
1.10. “Subaward” means a legal instrument pursuant to which a Prime Recipient of Award funds awards all or a portion of such funds to a Subrecipient, in exchange for the Subrecipient’s support in the performance of all or any portion of the substantive project or program for which the Award was granted.
1.11. “Subrecipient” means a non-Federal Entity (or a Federal agency under an Award or Subaward to a non- Federal Entity) receiving Federal funds through a Prime Recipient to support the performance of the Federal
project or program for which the Federal funds were awarded. A Subrecipient is subject to the terms and conditions of the Federal Award to the Prime Recipient, including program compliance requirements. The
term “Subrecipient” includes and may be referred to as Subgrantee.
1.12. “Subrecipient Parent DUNS Number” means the subrecipient parent organization’s 9-digit Data Universal Numbering System (DUNS) number that appears in the subrecipient’s System for Award Management (SAM) profile, if applicable.
1.13. “Supplemental Provisions” means these Supplemental Provisions for Federally Funded Contracts, Grants, and Purchase Orders subject to the Federal Funding Accountability and Transparency Act of 2006, As Amended, as may be revised pursuant to ongoing guidance from the relevant Federal or State of Colorado agency or institution of higher education.
1.14. “System for Award Management (SAM)” means the Federal repository into which an Entity must enter
the information required under the Transparency Act, which may be found at http://www.sam.gov.
1.15. “Total Compensation” means the cash and noncash dollar value earned by an Executive during the Prime Recipient’s or Subrecipient’s preceding fiscal year and includes the following:
1.15.1. Salary and bonus; 1.15.2. Awards of stock, stock options, and stock appreciation rights, using the dollar amount recognized for financial statement reporting purposes with respect to the fiscal year in accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2005) (FAS 123R), Shared Based Payments; 1.15.3. Earnings for services under non-equity incentive plans, not including group life, health, hospitalization or medical reimbursement plans that do not discriminate in favor of Executives and are available generally to all salaried employees; 1.15.4. Change in present value of defined benefit and actuarial pension plans;
1.15.5. Above-market earnings on deferred compensation which is not tax-qualified; 1.15.6. Other compensation, if the aggregate value of all such other compensation (e.g. severance,
termination payments, value of life insurance paid on behalf of the employee, perquisites or property) for the Executive exceeds $10,000.
1.16. “Transparency Act” means the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109-282), as amended by §6202 of Public Law 110-252. The Transparency Act also is referred to as FFATA.
1.17 “Vendor” means a dealer, distributor, merchant or other seller providing property or services required for a project or program funded by an Award. A Vendor is not a Prime Recipient or a Subrecipient and is not subject to the terms and conditions of the Federal award. Program compliance requirements do not pass through to a Vendor.
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2.Compliance. Contractor shall comply with all applicable provisions of the Transparency Act and the regulationsissued pursuant thereto, including but not limited to these Supplemental Provisions. Any revisions to suchprovisions or regulations shall automatically become a part of these Supplemental Provisions, without the necessityof either party executing any further instrument. The State of Colorado may provide written notification toContractor of such revisions, but such notice shall not be a condition precedent to the effectiveness of such revisions.
3.System for Award Management (SAM) and Data Universal Numbering System (DUNS) Requirements.
3.1. SAM. Contractor shall maintain the currency of its information in SAM until the Contractor submits thefinal financial report required under the Award or receives final payment, whichever is later. Contractor shall review and update SAM information at least annually after the initial registration, and more frequently if required by changes in its information.
3.2. DUNS. Contractor shall provide its DUNS number to its Prime Recipient, and shall update Contractor’s information in Dun & Bradstreet, Inc. at least annually after the initial registration, and more frequently if
required by changes in Contractor’s information.
4.Total Compensation. Contractor shall include Total Compensation in SAM for each of its five most highlycompensated Executives for the preceding fiscal year if:
4.1. The total Federal funding authorized to date under the Award is $25,000 or more; and
4.2. In the preceding fiscal year, Contractor received:
4.2.1. 80% or more of its annual gross revenues from Federal procurement contracts and subcontracts and/or Federal financial assistance Awards or Subawards subject to the Transparency Act; and 4.2.2. $25,000,000 or more in annual gross revenues from Federal procurement contracts and subcontracts and/or Federal financial assistance Awards or Subawards subject to the Transparency Act; and
4.3. The public does not have access to information about the compensation of such Executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d) or § 6104 of the Internal Revenue Code of 1986.
5.Reporting. Contractor shall report data elements to SAM and to the Prime Recipient as required in §7 below ifContractor is a Subrecipient for the Award pursuant to the Transparency Act. No direct payment shall be made toContractor for providing any reports required under these Supplemental Provisions and the cost of producing suchreports shall be included in the Contract price. The reporting requirements in §7 below are based on guidance fromthe US Office of Management and Budget (OMB), and as such are subject to change at any time by OMB. Any suchchanges shall be automatically incorporated into this Contract and shall become part of Contractor’s obligationsunder this Contract, as provided in §2 above. The Colorado Office of the State Controller will provide summariesof revised OMB reporting requirements at http://www.colorado.gov/dpa/dfp/sco/FFATA.htm.
6.Effective Date and Dollar Threshold for Reporting. The effective date of these Supplemental Provisions applyto new Awards as of October 1, 2010. Reporting requirements in §7 below apply to new Awards as of October 1,2010, if the initial award is $25,000 or more. If the initial Award is below $25,000 but subsequent Awardmodifications result in a total Award of $25,000 or more, the Award is subject to the reporting requirements as ofthe date the Award exceeds $25,000. If the initial Award is $25,000 or more, but funding is subsequently de-obligated such that the total award amount falls below $25,000, the Award shall continue to be subject to thereporting requirements.
7.Subrecipient Reporting Requirements. If Contractor is a Subrecipient, Contractor shall report as set forth below.
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7.1 To SAM. A Subrecipient shall register in SAM and report the following data elements in SAM for each Federal Award Identification Number no later than the end of the month following the month in which the Subaward was made:
7.1.1 Subrecipient DUNS Number;
7.1.2 Subrecipient DUNS Number + 4 if more than one electronic funds transfer (EFT) account;
7.1.3 Subrecipient Parent DUNS Number;
7.1.4 Subrecipient’s address, including: Street Address, City, State, Country, Zip + 4, and Congressional District;
7.1.5 Subrecipient’s top 5 most highly compensated Executives if the criteria in §4 above are met; and
7.1.6 Subrecipient’s Total Compensation of top 5 most highly compensated Executives if criteria in §4 above met.
7.2 To Prime Recipient. A Subrecipient shall report to its Prime Recipient, upon the effective date of the Contract, the following data elements:
7.2.1 Subrecipient’s DUNS Number as registered in SAM.
7.2.2 Primary Place of Performance Information, including: Street Address, City, State, Country, Zip code + 4, and Congressional District.
8.Exemptions.
8.1. These Supplemental Provisions do not apply to an individual who receives an Award as a natural person,unrelated to any business or non-profit organization he or she may own or operate in his or her name.
8.2 A Contractor with gross income from all sources of less than $300,000 in the previous tax year is exempt from the requirements to report Subawards and the Total Compensation of its most highly compensated Executives.
8.3 Effective October 1, 2010, “Award” currently means a grant, cooperative agreement, or other arrangement as defined in Section 1.1 of these Special Provisions. On future dates “Award” may include other items to be specified by OMB in policy memoranda available at the OMB Web site; Award also will include other types of Awards subject to the Transparency Act.
8.4 There are no Transparency Act reporting requirements for Vendors.
Event of Default. Failure to comply with these Supplemental Provisions shall constitute an event of default under the
Contract and the State of Colorado may terminate the Contract upon 30 days prior written notice if the default remains
uncured five calendar days following the termination of the 30 day notice period. This remedy will be in addition to
any other remedy available to the State of Colorado under the Contract, at law or in equity.
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EXHIBIT L
SAMPLE SUBRECIPIENT MONITORING AND RISK ASSESSMENT
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Exhibit L - Page 3 of 3
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EXHIBIT M - OMB Uniform Guidance for Federal Awards Subject to The Office of Management and Budget Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (“Uniform Guidance”), Federal Register, Vol. 78, No. 248, 78590
The agreement to which these Uniform Guidance Supplemental Provisions are attached has been funded, in whole or in part, with an award of Federal funds. In the event of a conflict between the provisions of these Supplemental Provisions, the Special Provisions, the agreement or any attachments or exhibits incorporated into and made a part of the agreement, the provisions of these Uniform Guidance Supplemental Provisions shall control. In the event of a conflict between the provisions of these Supplemental Provisions and the FFATA Supplemental Provisions, the FFATA Supplemental Provisions shall control.
9.Definitions. For the purposes of these Supplemental Provisions, the following terms shall have the meaningsascribed to them below.
9.1. “Award” means an award by a Recipient to a Subrecipient funded in whole or in part by a Federal Award.The terms and conditions of the Federal Award flow down to the Award unless the terms and conditions of the Federal Award specifically indicate otherwise. 2 CFR §200.38
9.2. “Federal Award” means an award of Federal financial assistance or a cost-reimbursement contract under the Federal Acquisition Requirements by a Federal Awarding Agency to a Recipient. “Federal Award” also means an agreement setting forth the terms and conditions of the Federal Award. The term does not include payments to a contractor or payments to an individual that is a beneficiary of a Federal program.
9.3. “Federal Awarding Agency” means a Federal agency providing a Federal Award to a Recipient. 2 CFR §200.37
9.4. “FFATA” means the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109- 282), as amended by §6202 of Public Law 110-252.
9.5. “Grant” or “Grant Agreement” means an agreement setting forth the terms and conditions of an Award. The term does not include an agreement that provides only direct Federal cash assistance to an individual, a subsidy, a loan, a loan guarantee, insurance, or acquires property or services for the direct benefit of use of
the Federal Awarding Agency or Recipient. 2 CFR §200.51.
9.6. “OMB” means the Executive Office of the President, Office of Management and Budget.
9.7. “Recipient” means a Colorado State department, agency or institution of higher education that receives a Federal Award from a Federal Awarding Agency to carry out an activity under a Federal program. The term does not include Subrecipients. 2 CFR §200.86
9.8. “State” means the State of Colorado, acting by and through its departments, agencies and institutions of higher education.
9.9. “Subrecipient” means a non-Federal entity receiving an Award from a Recipient to carry out part of a
Federal program. The term does not include an individual who is a beneficiary of such program.
9.10. “Uniform Guidance” means the Office of Management and Budget Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, which supersedes requirements from OMB
Circulars A-21, A-87, A-110, and A-122, OMB Circulars A-89, A-102, and A- 133, and the guidance in Circular A-50 on Single Audit Act follow-up. The terms and conditions of the Uniform Guidance flow down
to Awards to Subrecipients unless the Uniform Guidance or the terms and conditions of the Federal Award specifically indicate otherwise.
9.11. “Uniform Guidance Supplemental Provisions” means these Supplemental Provisions for Federal Awards subject to the OMB Uniform Guidance, as may be revised pursuant to ongoing guidance from relevant Federal agencies or the Colorado State Controller.
10.Compliance. Subrecipient shall comply with all applicable provisions of the Uniform Guidance, including but notlimited to these Uniform Guidance Supplemental Provisions. Any revisions to such provisions
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automatically shall become a part of these Supplemental Provisions, without the necessity of either party executing any further instrument. The State of Colorado may provide written notification to Subrecipient of such revisions, but such notice shall not be a condition precedent to the effectiveness of such revisions.
11.Procurement Standards.
3.1 Procurement Procedures. Subrecipient shall use its own documented procurement procedures whichreflect applicable State, local, and Tribal laws and regulations, provided that the procurements conform to applicable Federal law and the standards identified in the Uniform Guidance, including without limitation, §§200.318 through 200.326 thereof.
3.2 Procurement of Recovered Materials. If Subrecipient is a State Agency or an agency of a political subdivision of a state, its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.
4.Access to Records. Subrecipient shall permit Recipient and auditors to have access to Subrecipient’s records andfinancial statements as necessary for Recipient to meet the requirements of §200.331 (Requirements for pass-through entities), §§200.300 (Statutory and national policy requirements) through 200.309 (Period ofperformance), and Subpart F-Audit Requirements of the Uniform Guidance. 2 CFR §200.331(a)(5).
5.Single Audit Requirements. If Subrecipient expends $750,000 or more in Federal Awards during Subrecipient’sfiscal year, Subrecipient shall procure or arrange for a single or program-specific audit conducted for that year inaccordance with the provisions of Subpart F-Audit Requirements of the Uniform Guidance, issued pursuant to theSingle Audit Act Amendments of 1996, (31 U.S.C. 7501-7507). 2 CFR §200.501.
5.1 Election. Subrecipient shall have a single audit conducted in accordance with Uniform Guidance§200.514 (Scope of audit), except when it elects to have a program-specific audit conducted in accordancewith §200.507 (Program-specific audits). Subrecipient may elect to have a program-specific audit ifSubrecipient expends Federal Awards under only one Federal program (excluding research anddevelopment) and the Federal program's statutes, regulations, or the terms and conditions of the Federalaward do not require a financial statement audit of Recipient. A program-specific audit may not be elected
for research and development unless all of the Federal Awards expended were received from Recipient andRecipient approves in advance a program-specific audit.
5.2 Exemption. If Subrecipient expends less than $750,000 in Federal Awards during its fiscal year, Subrecipient shall be exempt from Federal audit requirements for that year, except as noted in 2 CFR §200.503 (Relation to other audit requirements), but records shall be available for review or audit byappropriate officials of the Federal agency, the State, and the Government Accountability Office.
5.3 Subrecipient Compliance Responsibility. Subrecipient shall procure or otherwise arrange for the audit required by Part F of the Uniform Guidance and ensure it is properly performed and submitted when due in accordance with the Uniform Guidance. Subrecipient shall prepare appropriate financial statements, including the schedule of expenditures of Federal awards in accordance with Uniform Guidance §200.510 (Financial statements) and provide the auditor with access to personnel, accounts, books, records, supporting documentation, and other information as needed for the auditor to perform the audit required by Uniform Guidance Part F-Audit Requirements.
6.Contract Provisions for Subrecipient Contracts. Subrecipient shall comply with and shall include all of thefollowing applicable provisions in all subcontracts entered into by it pursuant to this Grant Agreement.
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6.1 Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of “federally assisted construction contract” in 41 CFR Part 60-1.3 shall include the equal opportunity clause provided under 41 CFR 60-1.4(b), in accordance with Executive Order 11246,
“Equal Employment Opportunity” (30 FR 12319, 12935, 3 CFR Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 CFR part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.”
“During the performance of this contract, the contractor agrees as follows:
(1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that
applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to the following:
Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this
nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin.
(3) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(4) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
(5) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(6) In the event of the contractor's non-compliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be canceled, terminated or suspended in
whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other
sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(7) The contractor will include the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States.”
4.2 Davis-Bacon Act. Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non-Federal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 3141-3144, and 3146-
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3148) as supplemented by Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-Federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-Federal entity must report all suspected or reported violations to the Federal awarding agency. The contracts must also include a provision for compliance with the Copeland “Anti-Kickback” Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or Subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-Federal entity must report all suspected or reported violations to the Federal awarding agency.
4.3 Rights to Inventions Made Under a Contract or Agreement. If the Federal Award meets the definition of “funding agreement” under 37 CFR §401.2 (a) and Subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” Subrecipient must comply with the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency.
4.4 Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251- 1387), as amended. Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non-Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).
4.5 Debarment and Suspension (Executive Orders 12549 and 12689). A contract award (see 2 CFR 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.
4.6 Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee
of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non- Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non-Federal award.
7.Certifications. Unless prohibited by Federal statutes or regulations, Recipient may require Subrecipient to submitcertifications and representations required by Federal statutes or regulations on an annual basis. 2 CFR §200.208.Submission may be required more frequently if Subrecipient fails to meet a requirement of the Federalaward. Subrecipient shall certify in writing to the State at the end of the Award that the project or activitywas completed or the level of effort was expended. 2 CFR §200.201(3). If the required level of activityor effort was not carried out, the amount of the Award must be adjusted.
1.8.Event of Default. Failure to comply with these Uniform Guidance Supplemental Provisions shall constitute an eventof default under the Grant Agreement (2 CFR §200.339) and the State may terminate the Grant upon 30
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days prior written notice if the default remains uncured five calendar days following the termination of the 30 day notice period. This remedy will be in addition to any other remedy available to the State of Colorado under the Grant, at law or in equity.
9.Effective Date. The effective date of the Uniform Guidance is December 26, 2013. 2 CFR §200.110. Theprocurement standards set forth in Uniform Guidance §§200.317-200.326 are applicable to new Awards made byRecipient as of December 26, 2015. The standards set forth in Uniform Guidance Subpart F-Audit Requirementsare applicable to audits of fiscal years beginning on or after December 26, 2014.
10.Performance Measurement
The Uniform Guidance requires completion of OMB-approved standard information collection forms (the PPR).The form focuses on outcomes, as related to the Federal Award Performance Goals that awarding Federal agencies
are required to detail in the Awards.
Section 200.301 provides guidance to Federal agencies to measure performance in a way that will help the Federalawarding agency and other non-Federal entities to improve program outcomes.
The Federal awarding agency is required to provide recipients with clear performance goals, indicators, andmilestones (200.210). Also, must require the recipient to relate financial data to performance accomplishments ofthe Federal award.