HomeMy WebLinkAboutResolution 2013-0017CITY OF WHEAT RIDGE, COLORADO
RESOLUTION NO. 17
Series of 2013
TITLE: A RESOLUTION APPROVING A CONTRACT WITH THE
COLORADO DEPARTMENT OF TRANSPORTATION FOR THE
WADSWORTH BOULEVARD PLANNING AND
ENVIRONMENTAL LINKAGE STUDY FROM 36TH TO 46TH
AVENUE
WHEREAS , the City Council wishes to provide for the planning and
environmental study of the Wadsworth Boulevard corridor from 36th to 46th Avenue; and
WHEREAS , the City has been awarded a federal transportation grant by the
Denver Regional Council of Governments (DR COG) to conduct a study of this particular
transportation corridor; and
WHEREAS , the C ity has negotiated a contract with the Colorado Department of
Transportation (COOT), DR COG's funding steward , for the fund ing of the Project; and
WHEREAS , the project funds are programmed in the 2013 Capital Investment
Program budget in the total amount of $1,200 ,000 in the Wadsworth PEL account to
finance the project cost and will seek reimbursement of 53% of the Project costs from
COOT upon Project completion ;
NOW, THEREFORE , BE IT RESOLVED by the C ity Council of the City of
Wheat Ridge, Colorado, that:
Section 1. Contract Approved . The contract between the City and (COOT) for
Project 19488: Wadsworth Boulevard Planning and Environmental Linkage Study
from 36 th to 46t h Avenue, is hereby approved and the Mayor and City Clerk are
authorized and directed to execute the same .
This Resolution shall be effective immediately upon adoption .
DONE AND RESOLVED this I '3 ~day of -.:....;....:..;:;;~'----
ATTEST:
I
(FMLAWRK)
PROJECT STU 1211.0S1, (1t488)
REGION II(JH)
STATE OF COLORADO
DepanunentofTranapo~tion
Intergovernmental Agreement
with
City of Wheat Ridge
TABLE OF CONTENTS
Rev 11128/12
Routing I 13 HA6 54978
10. 271001151
1. PARTIES ......................................................................................................................................... 2
2 . EFFECTIVE DATE AND NOTICE OF NONLIABIUTY ..................................................................... 2
3 . RECITALS ....................................................................................................................................... 2
4 . DEFINITIONS .................................................................................................................................. 2
5. TERM and EARLY TERMINATION ................................................................................................. 3
6. SCOPE OF WORK .......................................................................................................................... 3
7. OPTION LETTER MODIFICATION .................................................................................................. 7
8 . PAYMENTS ..................................................................................................................................... 8
9. ACCOUNTING .............................................................................................................................. 10
10. REPORTING -NOTIFICATION ................................................................................................... 11
11 . LOCAL AGENCY RECORDS ...................................................................................................... 11
12. CONFIDENTIAL INFORMATION-STATE RECORDS .................................................................. 12
13. CONFLICT OF INTEREST .......................................................................................................... 12
14. REPRESENTATIONS AND WARRANTIES ................................................................................. 12
15. INSURANCE ............................................................................................................................... 13
16. DEFAULT-BREACH .................................................................................................................... 14
17. REMEDIES .................................................................................................................................. 15
18. NOTICES and REPRESENTATIVES ........................................................................................... 17
19. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOF1WARE ............................................ 17
20. GOVERNMENTALIMMUNIT'Y .................................................................................................... 17
21 . STATEWIDE CONTRACT MANAGEMENT SYSTEM ................................................................. 18
22. FEDERAL REQUIREMENTS ....................................................................................................... 18
23. DISADVANTAGED BUSINESS ENTERPRISE (OBE) ................................................................. 18
24. DISPUTES ................................................................................................................................... 18
25. GENERAL PROVISIONS ............................................................................................................ 19
26. COLORADO SPECIAL PROVISIONS ......................................................................................... 22
27. SIGNATURE PAGE ..................................................................................................................... 24
28. EXHIBIT A-SCOPE OF WORK ........................... : ....................................................................... 1
29. EXHIBIT B -LOCAL AGENCY RESOLUTION .............................................................................. 1
30. EXHIBIT C-FUNDING PROVISIONS .......................................................................................... 1
31 . EXHIBIT D -OPTION LETTER ..................................................................................................... 1
32. EXHIBIT E -LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST ............................. 1
33. EXHIBIT F-CERTIFICATION FOR FEDERAL-AID CONTRACTS ............................................... 1
34. EXHIBIT G-DISADVANTAGED BUSINESS ENTERPRISE ........................................................ 1
35. EXHIBIT H-LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES ........................ 1
36. EXHIBIT 1-FEDERAL-AID CONTRACT PROVISIONS ................................................................ 1
37. EXHIBIT J-FEDERAL REQUIREMENTS .................................................................................... 1
38. EXHIBIT K-SUPPLEMENTAL FEDERAL PROVISIONS ............................................................. 1
I
1. PARTIES
THIS AGREEMENT is entered into by and between the City of Wheat Ridge (hereinafter called the
"Local Agency"), and the STATE OF COLORADO acting by and through the Department of
Transportation (hereinafter called the ·state• or ·coon.
2. EFFECTIVE DATE AND NOncE OF NONUABIUTY
This Agreement shall not be effective or enforceable until it Is approved and signed by the Colorado
State Controller or their designee (hereinafter called the •effective Date"). The State shall not be liable
to pay or reimburse the Local Agency for any performance hereunder, including, but not limited to
costs or expenses incurred, or be bound by any provision hereof prior to the Effective Date.
3. RECITALS
A. Authority, Appropriation, And Approval
Authority exists in the law and funds have been budgeted, appropriated and otherwise made
available and a sufficient unencumbered balance thereof remains available for payment and the
required approval, clearance and coordination have been accomplished from and with
appropriate agencies.
I. Federal Authority
Pursuant to Title I , Subtitle A , Section 1108 of the •Transportation Equity Act for the 21"
Century• of 1998 (TEA-21 ) and/or the ·safe, Accountable, Flexible , Efficient Transportation
Equity Act: A Legacy for Users· (SAFETEA-LU) of 2005 and to applicable provisions of Tit1e
23 of the United States Code and implementing regulations at Title 23 of the Code of Federal
Regulations, as may be amended, (collectively referred to hereinafter as the "Federal
Provisions"), certain federal funds have been and are expected to continue to be allocated
for transportation projects requested by the Local Agency and eligible under the Surface
Transportation Improvement Program that has been proposed by the State and approved by
the Federal Highway Administration ("FHWA 1.
II. State Authority
Pursuant to CRS §43-1-223 and to applicable portions of the Federal Provisions, the State is
responsib le for the general administration and supervision of performance of projects in the
Program, including the administration of federal funds for a Program project performed by a
Local Agency under a contract with the State. This Agreement is executed under the
authority of CRS §§29-1 -203, 43-1 -110; 43-1 -116, 43-2-101(4)(c) and 43-2-104.5 .
B . Consideration
The Parties acknowledge that the mutual promises and covenants contained herein and other
good and valuable consideration are sufficient and adequate to support this Agreement.
C . Purpose
The purpose of this Agreement is to disburse Federal funds to the Local Agency pursuant to
COOT's Stewardship Agreement with the FHWA.
D. References
All references in this Agreement to sections (whether spelled out or using the § symbol),
subsections, exhibits or other attachments, are references to sections, subsections, exhibits or
other attachments contained herein or incorporated as a part hereof, unless otherwise noted.
4. DEFINITIONS
The following terms as used herein shall be construed and interpreted as follows :
A. Agreement or Contract
• Agreemenr or ·contract• means this Agreement, its terms and conditions, attached eXhibits,
documents incorporated by reference under the terms of this Agreement, and any future
modifying agreements, exhibits , attachments or references that are incorporated pursuant to
Colorado State Fiscal Rules and Policies .
B . Agreement Funds
UAgreement Funds" means funds payable by the State to Local Agency pursuant to this
Agreement.
Page 2 of 24
C. Budget
"Budget• means the budget for the Work described In Exhibit C.
D . Consultant and Contractor
"Consultanr means a professional engineer or designer hired by local Agency to design the
Work and ·contractor" means the general construction contractor hired by local Agency to
construct the Work.
E. Evaluation
"Evaluation• means the process of examining the Local Agency's Work and rating it based on
criteria established in §6 and Exhibits A and E.
F . Exhibits and Other Attachments
The following exhlbit(s) are attached hereto and incorporated by reference herein: Exhibit A
(Scope of Work), Exhibit B (Resolution), Exhibit C (Funding Provisions), Exhibit D (Option
letter), Exhibit E (Local Agency Contract Administration Checklist), Exhibit F (Certification for
Federal-Aid Funds), Exhibit G (Disadvantaged Business Enterprise), Exhibit H (Local Agency
Procedures), Exhibit I (Federal-Aid Contract Provisions), Exhibit J (Federal Requirements) and
Exhibit K (Supplemental Federal Provisions).
G. Goods
"Goods" means tangible material acquired, produced, or delivered by the local Agency either
separately or in conjunction with the Services the local Agency renders hereunder.
H. Oversight
·oversighr means the term as It is defined In the Stewardship Agreement between COOT and
the Federal Highway Administration ("FHWAj and as it is defined in the Local Agency Manual.
I. Party or Parties
"Party" means the State or the Local Agency and "Parties· means both the State and the Local
Agency
J. Work Budget
Work Budget means the budget described in Exhibit C .
K. Services
"Services· means the required services to be performed by the Local Agency pursuant to this
Contract.
L. Work
"Work" means the tasks and activities the local Agency is required to perform to fulfill its
obligations under this Contract and Exhibits A and E , including the performance of the
Services and delivery of the Goods.
M. Work Product
"Work Product" means the tangible or intangible results of the local Agency's Work, including,
but not limited to, software, research, reports, studies, data, photographs, negatives or other
finished or unfinished documents, drawings, models, surveys, maps, materials, or work product
of any type, including drafts.
6 . TERM and EARLY TERMINA noN
The Parties' respective performances under this Agreement shall commence on the Effective Date.
This Agreement shall terminate after ten (10) years of state controllers signature in section 27, unless
sooner terminated or completed as demonstrated by final payment and final audit
6. SCOPE OF WORK
A . Completion
The Local Agency shall complete the Work and other obligations as described herein in Exhibit
A . Work performed prior to the Effective Date or after final acceptance shall not be considered
part of the Work.
B . Goods and Services
Page 3 of24
The Local Agency shall procure Goods and Services necessary to complete the Wort<. Such
procurement shall be accomplished using the Contract Funds and shall not increase the
maximum amount payable hereunder by the State.
C. Employ ...
All persons employed hereunder by the Local Agency, or any Consultants or Contractors shall
be considered the Local Agency's , Consultants' or Contractors' employee{s} for all purposes
and shall not be employees of the State for any purpose.
D. State and Local Agency Commitments
I. Design
If the Wort< includes preliminary design or final design or design wort< sheets, or special
provisions and estimates (collectively referred to as the ·Plans"), the Local Agency shall
comply with and be responsible for satisfying the following requirements:
a) Perform or provide the Plans to the extent required by the nature of the Wort<.
b) Prepare final design in accordance with the requirements of the latest edition of the
American Association of State Highway Transportation Officials (AASHTO} manual or
other standard , such as the Uniform Building Code, as approved by the state.
c) Prepare provisions and estimates in accordance with the most current version of the
State's Roadway and Bridge Design Manuals and Standard Specifications for Road and
Bridge Construction or Local Agency specifications if approved by the State.
d) Include details of any required detours in the Plans in order to prevent any interference
of the construction Wort< and to protect the traveling public.
e) Stamp the Plans produced by a Colorado Registered Professional Engineer.
f) Provide final assembly of Plans and all other necessary documents.
g) Be responsible for the Plans' accuracy and completeness.
h) Make no further changes in the Plans following the award of the construction contract
to Contractor unless agreed to in writing by the Parties. The Plans shall be considered
final when approved in writing by COOT and when final they shall be incorporated herein.
II. Local Agency Work
a) Local Agency shall comply with the requ irements of the Americans Wrth Disabilities Act
{ADA), and applicable federal regulations and standards as contained in the document
UADA Accessibility Requirements in COOT Transportation Projects".
b) Local Agency shall afford the State ample opportunity to review the Plans and make
any changes in the Plans that are directed by the State to comply with FHWA
requirements.
c) Local Agency may enter into a contract with a Consultant to perform all or any portion
of the Plans and/or of construction administration. Provided, however, if federal-aid funds
are involved in the cost of such Wort< to be done by such Consultant, such Consultant
contract {and the performance/provision of the Plans under the contract) must comply
with all applicable requirements of 23 C.F .R. Part 172 and with any procedures
implementing those requirements as provided by the State, including those in Exhibit H .
If the Local Agency enters into a contract with a Consultant for the Wort<:
(1) Local Agency shall submit a certification that procurement of any Consultant
contract complies with the requirements of 23 C .F.R. 172.5(1) prior to entering into
such Consultant contract, subject to the State's approval. If not approved by the
State . the local Agency shall not enter into such Consultant contract.
(2) local Agency shall ensure that all changes in the Consultant contract have
prior approval by the State and FHWA and that they are in writing. Immediately
after the Consultant contract has been awarded, one copy of the executed
Consultant contract and any amendments shall be submitted to the State.
(3) local Agency shall require that all billings under the Consultant contract comply
with the State's standardized billing format. Examples of the billing formats are
available from the COOT Agreements Office.
Page 4 of 24
(4) local Agency (and any Consultant) shall comply with 23 C.F.R. 172.5(b) and
(d) and use the COOT procedures described in Exhibit H to administer the
Consuttant contract.
(&) local Agency may expedite any COOT approval of its procurement process
and/or Consultant contract by submitting a letter to COOT from the local Agency's
attorney/authorized representative certifying compliance with Exhibit H and 23
C.F.R. 172 .5(b)and (d).
(6) local Agency shall ensure that the Consultant contract complies with the
requirements of 49 CFR 18.36(i) and contains the following language verbatim :
(a) The design work under this Agreement shaft be compatible with the
requirements of the contract between the local Agency and the State (which is
incorporated herein by this reference) for the design/construction of the project.
The State is an intended third-party beneficiary of this agreement for that
purpose.
(b) Upon advertisement of the project work for construction, the consultant
shall make available services as requested by the State to assist the State in
the evaluation of construction and the resolution of construction problems that
may arise during the construction of the project.
(c) The consultant shall review the Construction Contractor's shop drawings for
conformance with the contract documents and compliance with the provisions
of the State 's publication . Standard Specifications for Road and Bridge
Construction, in connection with this work .
d) The State, in its sole discretion , may review construction plans , special provisions and
estimates and may require the local Agency to make such changes therein as the State
determines necessary to comply with State and FHWA requirements.
ill. Construction
If the Work includes construction. the local Agency shall perform the construction in
accordance with the approved design plans and/or administer the construction in
accordance with Exhibit E. Such administration shall include Work inspection and testing;
approving sources of materials ; perfonning required plant and shop inspections;
dociJmentation of contract payments, testing and inspection activities; preparing and
approving pay estimates; preparing, approving and securing the funding for contract
modifiCation orders and minor contract revisions; processing Construction Contractor
claims; construction supervision ; and meeting the Quality Control requirements of the
FHWA/CDOT Stewardship Agreement, as described in the local Agency Contract
Administration Checklist.
a) If the local Agency is performing the Work, the State may, after providing written
notice of the reason for the suspension to the local Agency, suspend the Work, wholly or
in part, due to the failure of the local Agency or its Contractor to correct conditions which
are unsafe for workers or for such periods as the State may deem necessary due to
unsuitable weather, or for conditions considered unsuitable for the prosecution of the
Work, or for any other condition or reason deemed by the State to be in the public
interest.
b) The local Agency shall be responsible for lhe folowing:
(1) Appointing a qualified professional engineer, licensed in the State of Colorado,
as the local Agency Project Engineer (LAPE), to perform engineering
administration . The LAPE shall administer the Work in accordance with this
Agreement, the requirements of the construction contract and applicable State
procedures.
(2) For the construction of the Wori<, advertising the call for bids upon approval by
the State and awarding the construction contract(s) to the low responsible
bidder(s).
Page 5 of24
(a) All advertising and bid awards, pursuant to this agreement, by the
Local Agency shall compty with applicable requirements of 23 U.S.C. §112
and 23 C .F .R. Parts 633 and 635 and C .R .S. § 24-92-101 et seq. Those
requirements include , without limitation, that the Local Agency and its
Contractor shall Incorporate Form 1273 (Exhibit I) in its entirety verbatim
into any subcontract(s) for those services as terms and conditions therefor,
as required by 23 C.F .R. 633.1 02(e).
(b) The Local Agency may accept or reject the proposal of the apparent
low bidder for Work on which competitive bids have been received . The
Local Agency must accept or reject such bid within three (3) working days
after they are publicly opened.
(c) As part of accepting bid awards, the Local Agency shall provide
additional funds , subject to their availability and appropriation, necessary to
complete the Work if no additional federal-aid funds are available.
(3) The requirements of this §6(0}(11i)(c)(2) also apply to any advertising and
awards made by the State.
(4) If all or part of the Work is to be accomplished by the Local Agency's
personnel (I.e . by force account) rather than by a competitive bidding process, the
Local Agency shall perform such work in accordance with pertinent State
specifications and requirements of 23 C .F .R. 635, Subpart 8 , Force Account
Construction.
(a) Such Work will normally be based upon estimated quantities and firm
unit prices agreed to between the Local Agency, the State and FHWA in
advance of the Work, as provided for in 23 C .R.F. 635.204(c). Such agreed
unit prices shall constitute a commitment as to the va lue of the Work to be
performed.
(b) An alternative to the preceeding subsection is that the Local Agency
may agree to participate in the Work based on actual costs of labor,
equipment rental , materials supplies and supervision necessary to
complete the Work. Where actual costs are used, eligibility of cost items
shall be evaluated for compliance with 48 C .F .R. Part 31 .
(c) If the State provides matching funds under this Agreement, rental rates
for publicly owned equipment shall be determined in accordance with the
State 's Standard Specifications for Road and Bridge Construction §109.04.
(d) All Work being paid under force account shall have prior approval of
the State and/or FHWA and shall not be initiated until the State has issued
a written notice to proceed .
E. State's Commitments
a) The State will perform a final project inspection of the Work as a quality
controVassurance activity. When all Work has been satisfactorily completed, the State will
sign the FHWA Form 1212.
b) Notwithstanding any consents or approvals given by the State for the Plans, the State
shall not be liable or responsible in any manner for the structural design , details or
construction of any major structures designed by, or that are the responsibility of, the Local
Agency as identified in the Local Agency Contract Administration Checklist, Exh ibit E,
F. ROWand Acqulatl on/RelocatJon
a) If the Local Agency purchases a right of way for a State highway, including areas of
influence, the Local Agency shall immediately convey title to such right of way to COOT
after the Local Agency obtains title.
b) Any acquisition/relocation activities shall comply with all applicable federal and state
statutes and regulations , including but not limited to the Uniform Relocation Assistance and
Real Property Acquis it ion Policies Act of 1970 as amended and the Uniform Relocation
A ssistan ce and Real Property Acquisition Policies for Federal and Federally Ass isted
Page 6 of 24
Programs as amended (49 C.F.R. Part 24), COOT's Right of Way Manual , and COOT's
Policy and Procedural Oirect.ives.
c) The Part ies ' respective compliance responsibilities depend on the level of federal
participation ; provided however, that the State always retains Oversight responsibilities .
d) The Parties ' respective responsibilities under each level In COOT 's Right of Way
Manual (located at http://www.dot.state .co.usfROW Manual/) and reimbursement for the levels
will be under the following categories:
G . Utilities
(1 ) Right of way acquisition (3111) for federal participation and non-participation ;
(2) Relocation activities , if appliCIIble (3109);
(3) Right of way incidentals, if applicable (expenses incidental to
acqu isition/relocation of right of way-311•).
If necessary, the Local Agency shall be responsible for obtaining the proper clearance or
approval from any utility company which may become Involved in the Wor1<. Prior to the Wor1<
being advertised for bids, the Local Agency shall certify in writing to the State that all such
clearances have been obtained .
a) Railroads
If the Wor1< involves modification of a railroad company 's facilities and such modification will
be accomplished by the railroad company, the Local Agency shall make timely application
to the Public Utilities commission requesting its order providing for the installation of the
proposed improvements and not proceed with that part of the Work without compliance.
The Local Agency shall also establish contact with the railroad company involved for the
purpose of complying with applicable provisions of 23 C.F.R. 646, subpart 8, concerning
federal-aid projects involving rairroad facilities and:
b) Execute an agreement setting out what work is to be accomplished and the location(s)
thereof, and which costs shall be eligible for federal participation .
c) Obtain the railroad 's detailed estimate of \he co§t of the Work .
d) Establish future maintenance responsibilities for the proposed installation .
e) Proscribe Mure use or d ispositions of the proposed improvements in the event of
abandonment or elimination of a grade crossing .
f) Establish future repa ir and/or replacement responsibilities in the event of accidental
destruction or damage to the installation .
H. Environmental Obligations
The Local Agency shall perform all Wor1< in accordance with the requirements of the current
federal and state environmental regulations Including the National Environmental Policy Act
of 1969 (NEPA) as applicable.
I. Maintenance Obligations
The Local Agency shall ma intain and operate the Wori< constructed under this Agreement at
its own cost and expense during their useful life, in a manner satisfactory to the State and
FHWA, and the Local Agency shall provide for such maintenance and operations obligations
each year. Such maintenance and operations shall be conducted in accordance with all
applicable statutes , ordinances and regulations pertaining to maintaining such
improvements. The State and FHWA may make periodic inspections to verify that such
improvements are being adequately maintained.
7. OPTION LElTER MOOIFICA nON
An opti on letter may be used to authorize the Local Agency to begin a phase without increasing total
budgeted funds , increase or decrease the encumberance amount as shown on Exhibit C , and/or
tranfer funds from one phase to another. Option letter modification is limited to the specific scenarios
listed below. The option letter shall not be deemed valid until signed by the State Controller or an
authorized delegate.
A. Option to begin a phase and/or Increase or decrease the encumberance amount
Page 7 of24
The State may authorize the local Agency to begin a phase that may include Design,
Construction, Environmental, Utilities, ROW Incidentals or Miscellaneous (this does not
apply to Acquisition/Relocation or Railroads) as detailed in Exhibit A and at the same terms
and conditions stated in the original Agreement, with the total budgeted funds as shown on
Exhibit C remaining the same. The State may increase or decfease the encumbrance
amount for a particular phase by replacing the original funding exhibit (Exhibit C) in the
original Agreement with an updated Exhibit C-1 (subsequent exttibfts to Exhibit C-1 shall be
labeled C-2. C -3 . etc). The State may exercise this option by providing a fully executed
option to the local Agency within thirty (30) days before the initial targeted start date of the
phase, in a form substantially equivalent to Exhibit D. tf the State exercises this option, the
Agreement will be considered to include this option provision.
B . Option to transfer funds from one phase to another phase
The State may permit the Local Agency to transfer funds from one phase (Design,
Construction, Environmental, Utilities, ROW Incidentals or Miscellaneous) to another as a
result of changes to state, federal, and local match. The original fu nding exhibit (Exhibit C)
in the original Agreement will be replaced with an updated Exhibit C-1 (subsequent exhibits
to Exhibit C-1 shall be tabled C-2, C -3, etc.) and attached to the option letter. The funds
transferred from one phase to another are subject to the same terms and conditions stated
in the original Agreement with the total budgeted funds remaining the same. The State may
unilaterally exercise this option by providing a fully executed option to the Local Agency
within thirty (30) days before the initial targeted start date of the phase , in a form
substantially equivalent to Exhibit D. Any transfer of funds from one phase to another is
limited to an aggregate maximum of 24.99% of the original dollar amount of either phase
affected by a transfer. A bilateral amendment is required for any transfer exceeding 24.99%
of the original dollar amount of the phase affected by the increase or decrease.
C. Option to do both Options A and B
The State may authorize the Local Agency to begin a phase as detailed in Exhibit A, and
encumber and transfer funds from one phase to another. The original funding exhibit
(Exhibit C) in the original Agreement will be replaced with an updated Exhibit C-1
(subsequent exh ibits to Exhibit C-1 shall be labeled C-2, C-3 , etc.) and attached to the
option letter. The addition of a phase and encumbrance and transfer of funds are subject to
the same terms and conditions stated in the original Agreement with the total budgeted funds
remaining the same. The State may unilaterally exercise this option by providing a fully
executed option to the Local Agency within thirty (30) days before the initial targeted start
date of the phase, in a form substantially equivalent to Exhibit D.
8 . PAYMENTS
The State shall, in accordance with the provisions of this §8, pay the Local Agency in the amounts
and using the methods set forth below:
A. Maximum Amount
The maximum amount payable is set forth in Exhibit C as determined by the State from
available funds. Payments to the Local Agency are limited to the unpaid encumbered balance of
the Agreement set forth in Exhibit C . The Local Agency shall provide its match share of the
costs as evidenced by an appropriate ordinance/resolution or other authority letter which
expressly authorizes the Local Agency the authority to enter into this Agreement and to expend
its match share of the Work. A copy of such ordinance/resolution or authority letter is attached
hereto as Exhibit B.
B. Payment
I. Advance, Interim and Final Payments
Any advance payment allowed under th is Contract or in Exhibit C shall comply with State
Fiscal Rules and be made in accordance with the provisions of this Contract or such Exhibit.
Page 8 of 24
The local Agency shall initiate any payment requests by submitting invoices to the State in
the form and manner, approved by the State.
II. Interest
The State shall fully pay each invoice within 45 days of receipt thereof if the amount Invoiced
represents performance by the local Agency previously accepted by the State. Uncontested
amounts not paid by the State within 45 days shall bear interest on the unpaid balance
beginning on the 46th day at a rate not to exceed one percent per month until paid in full;
provided, however, that interest shall not accrue on unpaid amounts that are subject to a
good faith dispute. The local Agency shall invoice the State separately for accrued interest
on delinquent amounts. The billing shall reference the delinquent payment, the number of
days interest to be paid and the interest rate.
IH. Available Funda.Contlngency· Termination
The State is prohibited by law from making cornmrunents beyond the term of the State's
current fiscal year. Therefore, the locaJ Agency's compensation beyond the State's current
Fiscal Year is contingent upon the continuing availability of State appropriations as provided
in the Colorado Special Provisions. The State's performance hereunder is also contingent
upon the continuing availability of federal funds. Payments pursuant to this Contract shall be
made only from available funds encumbered for this Contract and the State's liability for such
payments shall be limited to the amount remaining of such encumbered funds. If State or
federal funds are not appropriated, or otherwise become unavailable to fund this Contract,
the State may terminate this Contract immediately, iri whole or in part, without further liability
in accordance with the provisions hereof.
lv. Erroneous Payments
At the State's sole discretion, payments made to the local Agency in error for any reason ,
including , but not limited to overpayments or improper payments, and unexpended or excess
funds received by the local Agency, may be recovered from the local Agency by deduction
from subsequent payments under this Contract or other contracts, Agreements or
agreements between the State and the local Agency or by other appropriate methods and
collected as a debt due to the State. Such funds shall not be paid to any party other than the
State.
C. Uae of Funda
Contract Funds shall be used only for eligible costs identified herein.
D. Matching Funda
The local Agency shall provide matching funds as provided in §S.A. and Exhibit C . The local
Agency shall have raised the full amount of matching funds prior to the Effective Date and shall
report to the State regarding the status of such funds upon request. The local Agency's
obligation to pay all or any part of any matching funds, whether direct or contingent, only extend
to funds duly and lawfully appropriated for the purposes of this Agreement by the authorized
representatives of the local Agency and paid into the local Agency's treasury. The local
Agency represents to the State that the amount designated •local Agency Matching Funds· in
Exhibit C has been legally appropriated for the purpose of this Agreement by its authorized
representatives and paid into its treasury. The local Agency does not by this Agreement
irrevocably pledge present cash reserves for payments in future fiSC81 years, and this
Agreement is not intended to create a multiple-fiscal year debt of the locaJ Agency. The local
Agency shall not pay or be liable for any claimed interest. late charges, fees, taxes or penalties
of any nature, except as required by the local Agency's laws or policies.
E. Reimbursement of Local Agency Coats
The State shall reimburse the Local Agency's allowable costs, not exceeding the maximum total
amount described in Exhibit C and §8. The applicable principles described in 49 C.F .R. 18
Subpart C and 49 C .F .R. 18.22 shall govern the State's obligation to reimburse all costs
incurred by the local Agency and submitted to the State for reimubursement hereunder, and the
local Agency shall comply with all such princ iples. The State shall reimburse the local Agency
for the federal-aid share of properly documented costs related to the Work after review and
Page 9 of24
approval thereof. subject to the provisions of this Agreement and Exhibit C . However. any costs
incurred by the local Agency prior to the date of FHWA authorization for the WQ!1( and prior to
the Effective Date shall not be reimbursed absent specific FHWA and State Controller approval
thereof. Costs shall be:
I. Reaaonabfe and Necessary
Resonable and necessary to accomplish the Wori< and for the Goods and Services provided.
II. Net Coat
Actual net cost to the local Agency (i.e. the price paid minus any items of value received by
the local Agency that reduce the cost actuany incurred);
9. ACCOUNTlNG
The local Agency shall establish and maintain accounting systems in accordance with generally
accepted accounting standards (a separate set of accounts, or as a separate and integral part of its
current accounting scheme). Such accounting systems shall, at a minimum, provide as follows :
A. Local Agency Performing the Work
If local Agency is performing the Wort<, all allowable costs . including any approved services
contributed by the local Agency or others, shall be documented using payrolls . time records ,
invoices, contracts, vouchers , and other applicable records .
B . Local Agency-Checks or Draws
Checks issued or draws made by the local Agency shall be made or drawn against properly
signed vouchers detailing the purpose thereof. All checks , payrolls, invoices. contracts,
vouchers , orders. and other accounting documents shall be on file in the office of the local
Agency ,clearly identified , read ily accessible, and to the extent feasible. kept separate and apart
from all other Work documents.
C. State~Admlnlstrative Services
The State may perform any necessary administrative support services required hereunder. The
Local Agency shall reimburse the State for the costs of any such services from the Budget as
provided for in Exhibit C . If FHWA fund ing is not available or is withdrawn. or if the local Agency
terminates this Agreement prior to the Wort< being approved or completed, then all actual
incurred costs of such services and assistance provided by the State shall be the Local
Agency's sole expense.
D. Local Agency-Invoices
The local Agency's invoices shall describe in detail the reimbursable costs incurred by the
Local Agency for which it seeks reimbursement, the dates such costs were incurred and the
amounts thereof, and shall not be submitted more often than monthly.
E. Invoicing Within 60 Days
The State shall not be liable to reimburse the local Agency for any costs unless COOT receives
such invoices within 60 days after the date for which payment is requested. including final
invoicing. Final payment to the Local Agency may be withheld at the discretion of the State until
completion of final audit. Any costs incurred by the local Agency that are not allowable under
49 C.F .R. 18 shall be reimbursed by the local Agency, or the State may offset them against any
payments due from the State to the local Agency.
F. Reimbursement of State Costs
COOT shall perform Oversight and the local Agency shall reimburse COOT for its related costs.
The local Agency shall pay invoices within 60 days after receipt thereof. If the Local Agency
fails to remit payment with in 60 days, at COOT's request , the State is authorized to withhold an
equal amount from future apportionment due the local Agency from the Highway Users Tax
Fund and to pay such funds d irectly to COOT. Interim funds shall be payable from the State
Highway Supplementary Fund (400} until COOT is reimbursed . If the local Agency fails to make
payment within 60 days, it shall pay interest to the State at a rate of one percent per month on
the delinquent amounts until the billing is paid in full . COOT's invoices shall describe in detail
the re imbursable costs incurred , the dates incurred and the amounts thereof, and shall not be
submitted more often than monthly.
Page 10 of24
10. REPORTING-NOnFICATION
Reports , Evaluations , and Reviews required under this §10 shall be in accordance with the
procedures of and in such form as prescribed by the State and in accordance with §18, if applicable.
A. Performance, Progress, Personnel, and Funds
The Local Agency shall submit a report to the State upon expiration or sooner termination of this
Agreement, containing an Evaluation and Review of the Local Agency's performance and the
final status of the Local Agency's obligations hereunder.
B. Litigation Reporting
Within 10 days after being served with any plead ing related to this Agreement , in a legal action
filed with a court or administrative agency, the Local Agency shall notify the State of such action
and deliver copies of such pleadings to the State's principal representative as identified herein .
If the State or its principal representative is not then serving, such notice and copies shall be
delivered to the Executive Director of COOT.
C. Noncompliance
The Local Agency's failure to provide reports and notify the State in a timely manner in
accordance with this §10 may result in the delay of payment of funds and/or termination as
provided under this Agreement
D. Documents
Upon request by the State, the Local Agency shalf provide the State, or Its authorized
representative, copies of all documents, including contracts and subcontracts , in Its possession
related to the Wor1<:.
11. LOCAL AGENCY RECORDS
A. Maintenance
The Local Agency shall make, keep, maintain , and allow inspection and monitoring by the State
of a complete file of all records , documents, communications , notes and other written materials,
electronic media files, and communications, pertaining in any manner to the Wor1<: or the
delivery of Services (including, but not limited to the operation of programs) or Goods
hereunder. The Local Agency shall maintain such records until the last to occur of the following :
(I) a period of three years after the date this Agreement is completed or terminated , or (II) three
years after final payment is made hereunder, whichever is later, or (Ill) for such further period as
may be necessary to resolve any pending matters , or (lv) if an audit Is occurring, or the Local
Agency has received notice that an audit is pending , then until such audit has been completed
and its findings have been resolved (collectively, the ·Record Retention Period•).
B. Inspection
The Local Agency shall permit the State, the federal government and any other duly authorized
agent of a governmental agency to audit, inspect, examine, excerpt, copy and/or transcribe the
local Agency's records related to this Agreement during the Record Retention Period to assure
compliance with the terms hereof or to evaluate the Local Agency's perfonnance hereunder.
The State reserves the right to inspect the Wor1<: at all reasonable times and places during the
term of this Agreement. including any extension . If the Wor1<: fails to conform to the requirements
of this Agreement, the State may require the local Agency promptly to bring the Wor1c into
conformity with Agreement requirements, at the local Agency's sate expense . If the Wor1c
cannot be brought into conformance by re-performance or other corrective measures, the State
may require the Local Agency to take necessary action to ensure that future performance
conforms to Agreement requirements and may exercise the remedies available under this
Agreement at law or in equity in lieu of or in conjunction with such corrective measures.
C. Monitoring
The Local Agency also shall permit the State, the federal government or any other duly
authorized agent of a governmental agency, in their sole discretion , to monitor all activities
conducted by the Local Agen cy pursuant to the terms of this Agreement us ing any reasonable
procedure, inc lud ing, but not li mited to : internal evaluation procedures, exam ina ti on of program
Page 11 of24
data, special analyses, on-site checking, formal audit examinations, or any other procedures. All
such monitoring shall be performed in a manner that shall not unduly interfere with the local
Agency's performance hereunder.
D. Final Audit Report
If an audit is performed on the Local Agency's records for any fiscal year covering a portion of
the term of this Agreement, the local Agency shall submit a copy of the final audit report to the
State or its principal representative at the address specified herein.
12. CONFIDENTIAL IN FORMA T10N-5TA TE RECORDS
The local Agency shall comply with the provisions of this §12 if it becomes privy to confidential
information in connection with its performance hereunder. Confidential information, includes, but is not
necessarily limited to, state records, personnel records, and information concerning individuals.
Nothing in this §12 shall be construed to require the local Agency to violate the Colorado Open
Records Act , C .R.S . §§ 24-72-1001 et seq.
A. Confidentiality
The local Agency shall keep all State records and information confidential at all times and to
comply with all laws and regulations concerning confidentiality of information. Any request or
demand by a third party for State records and information in the possession of the local Agency
shall be immediately forwarded to the State's principal representative.
B. Notification
The Local Agency shall notify its agents, employees and assigns who may come into contact
with State records and confidential information that each is subject to the confidentiality
requirements set f orth herein, and shall provide each with a written explanation of such ·
requirements before they are permitted to access such records and information.
C. Use, Security, and Retention
Confidential information of any kind shall not be distributed or sold to any third party or used by
the local Agency or its agents in any way, except as authorized by the Agreement and as
approved by the State. The local Agency shall provide and maintain a secure environment that
ensures confidentiality of all State records and other confidential information wherever located .
Confidential information shall not be retained in any files or otherwise by the Local Agency or its
agents, except as set forth in this Agreement and approved by the State.
D. Dfsclosure-Liablltty
Disclosure of State records or other confidential information by the local Agency for any reason
may be cause for legal action by third parties against the local Agency, the State or their
respective agents. The Local Agency is prohibited from providing indemnification to the State
pursuant to the Constitution of the State of Colorado, Article XI, Section 1, however, the local
Agency shall be responsible for any and all claims, damages, liability and court awards including
costs, expenses, and attorney fees and related costs, incurred as a result of any act or omission
by the Local Agency, or its employees, agents, or assignees pursuant to th is §12.
13. CONFLICT OF INTEREST
The local Agency shall not engage in any business or personal activities or practices or maintain any
relationships which conflict in any way with the full performance of the local Agency's obligations
hereunder. The local Agency acknow1edges that with respect to this Agreement even the appearance
of a conflict of interest is harmful to the State's interests. Absent the State's prior written approval, the
local Agency shall refrain from any practices, activities or relationships that reasonably appear to be
in conflict with the full performance of the Local Agency's obligations to the State hereunder. If a
conflict or appearance exists, or if the local Agency is uncertain whether a conflict or the appearance
of a conflict of interest exists, the local Agency shall submit to the State a disclosure statement
setting forth the relevant details for the State's consideration. Failure to promptly submit a disclosure
statement or to follow the State's direction in regard to the apparent conflict constitutes a breach of
th is Agreement.
14. REPRESENTATIONS AND WARRANTIES
Page 12 o f 24
The local Agency makes the following specific representations and warranties , each of which was
relied on by the State in entering into this Agreement.
A . Standard and Manner of Perfonnance
The Local Agency shall perform its obligations hereunder, including in accordance with the
highest professional standard of care, skill and diligence and in the sequence and manner set
forth in this Agreement
B. Legal Authority -The Local Agency and the Local Agency's Signatory
The Local Agency warrants that it possesses the legal authority to enter Into this Agreement and
that it has taken all actions required by its procedures, by-laws, and/or applicable laws to
exercise that authority, and to lawfully authorize its undersigned signatory to execute this
Agreement, or any part thereof, and to bind the Local Agency to its terms. If requested by the
State, the Local Agency shall provide the State with proof of the Local Agency's authority to
enter into this Agreement within 15 days of receiving such request.
C. Licenses, Pennlts, Etc .
The Local Agency represents and warrants that as of the Effective Date it has, and that at all
times during the term hereof it shall have, at its sote expense, all licenses, certifications,
approvals, insurance, permits, and other authorization required by law to perform its obligations
hereunder. The Local Agency warrants that it shall maintain all necessary licenses,
certifications, approvals, Insurance, permits, and other authorizations required to property
perform this Agreement, without reimbursement by the State or other adjustment in Agreement
Funds. Additionally, all employees and agents of the local Agency performing Services under
this Agreement shall hold all required licenses or certifications, If any, to perform their
responsibilities . The Local Agency, if a foreign corporation or other foreign entity transacting
business in the State of Colorado, further warrants that it currently has obtained and shall
maintain any applicable certificate of authority to transact business in the State of Colorado and
has designated a reg istered agent in Colorado to accept service of process. Any revocation,
withdrawal or non-renewal of licenses, certifications, approvals, insurance, permits or any such
similar requirements necessary for the local Agency to prope.rly perform the terms of this
Agreement shall be deemed to be a material breach by the Local Agency and constitute
grounds for termination of this Agreement.
15. INSURANCE
The Local Agency and its contractors shall obtain and maintain insurance as specified in this section
at all times during the term of this Agreement: All policies evidencing the insurance coverage required
hereunder shall be issued by insurance companies satisfactory to the Local Agency and the State.
A. The Local Agency
f. Public Entitles
If the Local Agency Is a "public entity'' within the meaning of the Colorado Governmental
Immunity Act, CRS §24-10-101 , et seq., as amended (the "GIAj, then the Local Agency
shall maintain at all times during the term of this Agreement such liability insurance, by
commercial policy or self-insurance, as is necessary to meet its liabifities under the GIA. The
local Agency shall show proof of such insurance satisfactory to the State, if requested by the
State. The local Agency shall require each Agreement with their Consultant and Contractor,
that are providing Goods or Services hereunder, to include the insu,.nce requirements
necessary to meet Consultant or Contractor liabilities under the GIA.
II. Non.Publlc Entities
If the Local Agency is not a "public entity" within the meaning of the Govemmentallmmunity
Act, the Local Agency shall obtain and maintain during the term of this Agreement insurance
coverage and policies meeting the same requirements set forth in §15(8) with respect to
subcontractors that are not "public entities".
B. Contractors
Page 13 of 24
The local Agency shall requ ire each contract with Contractors, Subcontractors, or Consultants,
other than those that are public entities, providing Goods or Services in connection with this
Agreement, to include insurance requirements substantially similar to the following :
I. Worker's Compensation
Wor1<er's Compensation Insurance as required by State statute, and Employer's liability
Insurance covering all of the local Agency's Contractors, Subcontractors, or Consultant's
employees acting within the course and scope of their employment.
II. General Liability
Commercial General Liability Insurance written on ISO occurrence fonn CG 00 01 10193 or
equivalent, covering premises operations , fire damage, independent contractors , products
and completed operations, blanket liability, personal injury, and advertising liability with
minimum limits as follows : (a) $1 ,000,000 each occurrence; (b) $1,000,000 general
aggregate; (c) $1 ,000,000 products and completed operations aggregate; and (d) $50,000
any one fire . If any aggregate limit is reduced below $1 ,000,000 because of claims made or
paid, contractors , subcontractors, and consultants shall immediately obtain additional
insurance to restore the full aggregate limit and fum ish to the local Agency a certificate or
other document satisfactory to the local Agency showing compliance with this provision.
Ill. Automobile Liability
Automobile liability Insurance covering any auto (including owned , hired and non-owned
autos) with a mini mum limit of $1 ,000,000 each accident combined single limit.
lv. Additional Insured
The local Agency and the State shall be named as additional insured on the Commercial
General Liability policies (leases and construction contracts require additional insured
coverage for completed operations on endorsements CG 2010 11/85, CG 2037, or
equivalent).
v . Primacy of Coverage
Coverage required of the Consultants or Co ntractors shall be primary over any insurance or
self-insurance program carried by the local Agency or the State.
vi. Cancellation
The above insu rance policies shall include provisions preventing cancellation or non-renewal
without at least 45 days prior notice to the local Agency and the State by certified mail.
vii. Subrogation Waiver
All insurance policies in any way related to this Agreement and secured and mainta ined by
the local Agency's Consultants or Contractors as required herein shall include clauses
stating that each carrier shall waive all rights of recovery, under subrogation or otherwise,
against the local Agency or the State, its agencies, institutions, organizations , officers,
agents, employees, and volunteers.
C. Certificates
The local Agency shall provide certificates showing insurance coverage required hereunder to
the State within seven business days of the Effective Date of this Agreement. All Contractors,
Subcontractors, or Consultants shall provide certificates showing insurance coverage required
hereunder to the local Agency 5 business days prior to wori< commencing by the Contractor,
Subcontractors, or Consultants. No later than 15 days prior to the expiration date of any such
coverage, the local Agency and each Contractor, Subcontractor, or Consultant shall deliver to
the State or the local Agency certificate of insurance evidencing renewa ls thereof. In addition,
upon request by the State at any other time during the term of this Agreement or any sub-
contract, the local Agency and each Contractor, Subcontractor, or Consultant shall , within 10
days of such request, supply to the State evidence satisfactory to the State of compliance with
the provision of th is §16 .
16. OEFAUL T·BREACH
Page 14 of 24
A. Defined
In addition to any breaches specified in other sections of th is Agreement, the fa ilure of either
Party to perform any of its material obligations hereunder in whole or in part or in a timely or
satisfactory manner constitutes a breach .
B. Notice and Cure Period
In the event of a breach , notice of such shall be given in writing by the aggrieved Party to the
other Party in the manner provided in §18. If such breach is not cured within 30 days of receipt
of written notice, or if a cure cannot be completed within 30 days, or if cure of the breach has
no t begun with in 30 days and pursued with due diligence, the State may exercise any of the
remedies set forth in §17 . Notwithstanding anything to the contrary herein , the State, in its sole
discretion , need not provide advance notice or a cure period and may immediately terminate
this Agreement in whole or in part if reasonably necessary to preserve public safety or to
prevent immediate public crisis.
17. REMEDIES
If the Local Agency Is In breach under any provision of this Agreement, the State shall have all of the
remedies fisted in th is §17 in addition to all other remedies set forth in other sections of this
Agreement following the notice and cure period set forth in §16(B). The State may exercise any or all
of the remedies available to it , in its sole discretion , concurrently or consecutively .
A. Termination for Cause and/or Breach
If the Local Agency fails to perform any of its obligations hereunder with such diligence as is
requ ired to ensure its completion in accordance with the provisions of this Ag reement and in a
timely manner, the State may notify the Local Agency of such non -performance in accordance
with the provisions herein . If the Local Agency thereafter falls to promptly cure such non-
performance with in the cure period , the State, at its option , may terminate this entire Agreement
or such part of this Agreement as to which there has been delay or a failure to property perform .
Exercise by the State of this right shall not be deemed a breach of its obligations hereunder.
The Local Agency shall continue performance of this Agreement to the extent not terminated , if
any.
I. Obligations and Rights
To the extent specified in any term ination notice, the Local Agency shall not Incur further
obligations or render further performance hereunder past the effective date of such notice,
and shall terminate outstanding orders and sub-Agreements with third parties. However, the
Local Agency shall complete and deliver to the State an Wor1c , Services and Goods not
cancelled by the termination notice and may incur obligations as are necessary to do so
with in this Agreement 's terms. At the sole discretion of the State, the Local Agency shall
assign to the State all of the Local Agency's right, title, and interest under such terminated
orders or sub-Agreements. Upon termination, the Local Agency shall take timely, reasonable
and necessary action to protect and preserve property In the possession of the Local Agency
in which the State has an interest. All materials owned by the State In the possession of the
Local Agency shall be immediately returned to the State. All Wor1c Product, at the option of
the State, shall be delivered by the Local Agency to the State and shall become the State's
property.
II. Payments
The State shall reimburse the Local Agency only for accepted performance received up to
the date of termination . If, afte r termination by the State , it is determined that the local
Agency was not in defautt or that the Local Agency's action or inaction was excusable, such
term ination shall be treated as a term ination in the public Interest and the rights and
obligations of the Parties shall be the same as if this Agreement had been terminated in the
public interest, as described herein.
Ill. Damages and Wltholdlng
Notwit hstanding any oth er remed ial acti on by the State, th e Local Agency also shall rema in
liab le to the State for any dam ages sustained by the State by virtue of any brea ch under this
Page 15of24
Agreement by the local Agency and the State may withhold any payment to the local
Agency for the purpose of mitigating the State's damages, until such time as the exact
amount of damages due to the State from the local Agency is determined. The State may
withhold any amount that may be due to the local Agency as the State deems necessary to
protect the State, including loss as a result of outstanding liens or claims of former lien
holders, or to reimburse the State for the excess costs incurred in procuring similar goods or
services. The local Agency shall be liable for excess costs incurred by the State in procuring
from third parties replacement Wori(, Services or substitute Goods as cover.
B. Early TennlnatJon In the Public Interest
The State is entering into this Agreement for the purpose of carrying out the public policy of the
State of Colorado, as determined by its Governor, General Assembly, and/or Courts. If this
Agreement ceases to further the public policy of the State , the State , in its sole discretion, may
terminate this Agreement in whole or in part. Exercise by the State of this right shall not
constitute a breach of the State's obligations hereunder. This subsection shall not apply to a
termination of this Agreement by the State for cause or breach by the local Agency, which shall
be governed by § 17(A) or as otherwise specifically provided for herein.
I. Method and Content
The State shall notify the local Agency of the termination in accordance with §18, specifying
the effective date of the termination and whether it affects all or a portion of this Agreement.
II. Obligations and Rights
Upon receipt of a termination notice, the local Agency shall be subject to and comply with
the same obligations and rights set forth in §17(A)(I).
Ill. Payments
If this Agreement is terminated by the State pursuant to this §17(8), the local Agency shall
be paid an amount which bears the same ratio to the total reimbursement under this
Agreement as the Services satisfactorily performed bear to the total Services covered by this
Agreement, less payments previously made. Additionally, if this Agreement is less than 60%
completed, the State may reimburse the local Agency for a portion of actual out-of-pocket
expenses (not otherwise reimbursed under this Agreement) incurred by the local Agency
which are directly attributable to the uncompleted portion of the local Agency's obligations
hereunder; provided that the sum of any and all reimbursement shall not exceed the
maximum amount payable to the local Agency hereunder.
C. Remedies Not Involving Tennlnatlon
The State, its sole discretion, may exercise one or more of the following remedies in addition to
other remedies available to it:
I. Suspend Perfonnance
Suspend the local Agency's performance with respect to all or any portion of this Agreement
pending necessary corrective action as specified by the State without entitling the local
Agency to an adjustment in price/cost or performance schedule. The Local Agency shall
promptly cease performance and incurring costs in accordance with the State's directive and
the State shall not be liable for costs incurred by the Local Agency after the suspension of
performance under this provision .
II . Wlthold Payment
Withhold payment to the local Agency until corrections in the local Agency's performance
are satisfactorily made and completed .
111. Deny Payment
Deny payment for those obligations not performed that due to the local Agency's actions or
inactions cannot be performed or, if performed, would be of no value to the State; provided
that any denial of payment shall be reasonably related to the value to the State of the
obligations not performed .
lv. Removal
Demand removal of any of the local Agency's employees, agents. or contractors whom the
State deems incompetent. careless, insubordinate, unsuitable, or otherwise unacceptable. or
Page 16 of24
whose cont inued relation to this Agreement is deemed to be contrary to the public interest or
not in the State 's best interest.
v . Intellectual Property
If the Local Agency infringes on a patent, copyright, trademark, trade secret or other
intellectual property right while performing its obligations under this Agreement. the Local
Agency shall , at the State's option (a) obtain for the State or the Local Agency the right to
use such products and services; (b) replace any Goods, Services, or other product involved
with non-infringing products or modify them so that they become non-infringing ; or, (c) tf
neither of the forgegoing alternatives are reasonably available, remove any infringing Goods ,
Services, or products and refund the price paid therefore to the State.
18. NOTICES and REPRESENTATIVES
Each individual identifted below is the principal representative of the designating Party. All notices
required to be given hereunder shall be hand delivered with receipt required or sent by certified or
registered mail to such Party 's principal representative at the address set forth below. In addition to
but not in lieu of a hard-copy notice, notice also may be sent by e-mail to the e-mail addresses, if any,
set forth below. Either Party may from time to time designate by written notice substitute addresses or
persons to whom such notices shall be sent. Unless otherwise provided herein , all notices shall be
effective upon receipt .
A. State:
Paul Neiman
COOT Region 6
2000 South Holly Street
Denver CO 80222
(720) 497-6986
paul .nelman@state.co .us
B . Local Age ncy:
Mark Westberg
City of Westminster
7500 West 29~~"~ Avenue
Westminster, CO 80033
(303) 235-2863
mwestberg@ci.wheatridae.co .us
19. RIGHTS fN DATA, DOCUMENTS, AND COMPUTER SOFTWARE
Any software , research , reports, studies , data , photographs. negatives or other documents. drawings,
models. materials , or work product of any type , including drafts, prepared by the Local Agency in the
performance of its obligat ions under this Agreement shall be the exclusive property of the State and
all Work Product shall be delivered to the State by the Local Agency upon completion or termination
hereof. The State's exclusive rights in such Work Product shall include, but not be limited to, the right
to copy, publish, display, transfer, and prepare derivative works . The Local Agency shall not use ,
willingly allow, cause or permit such Work Product to be used for any purpose other than the
performance of the Local Agencys's obligations hereunder without the prior written consent of the
State.
20. GOVERNMENTAL IMMUNITY
Notwithstanding any other provision to the contrary, nothing herein shall constitute a waiver. express
or implied, of any of the immunities, rights, benefits, protection , or other provisions of the Colorado
Governmental Immunity Act, CRS §24-1 0-101 , et seq., as amended . Uability for claims for injuries to
persons or property arising from the negligence of the State of Colorado, its departments , institutions,
agencies , boards , officials , and employees and of the Local Agency Is controlled and limited by the
provisions of the Governmental Im munity Act and the risk management statutes, CRS §24-30-1501 ,
et seq ., as amended .
Page 17 of 24
21. STATEWIDE CONTRACT MANAGEMENT SYSTEM
If the maximum amount payable to the Local Agency under this Agreement is $100,000 or greater.
either on the Effective Date or at anytime thereafter. this §21 applies.
The Local Agency agrees to be governed. and to abide. by the provisions of CRS §24-102-205. §24-
102-206, §24-1 03-601 , §24-1 03.5-101 and §24-1 05-102 concerning the monitoring of vendor
performance on state agreements/contracts and inclusion of agreemenVcontract performance
information in a statewide contract management system.
The Local Agency's performance shall be subject to Evaluation and Review in accordance with the
terms and conditions of this Agreement, State law, including CRS §24-103 .5-101, and State Fiscal
Rules , Policies and Guidance. Evaluation and Review of the Local Agency's performance shall be
part of the normal Agreement administration process and the Local Agency's performance will be
systematically recorded in the statewide Agreement Management System . Areas of Evaluation and
Review shall include, but shall not be limited to quality, cost and timeliness . Collection of information
relevant to the performance of the Local Agency's obligations under this Agreement shalt be
determined by the specific requirements of such obligations and shalt include factors tailored to match
the requirements of the Local Agency's obligations. Such performance information shalt be entered
into the statewide Contract Management System at intervals established herein and a final
Evaluation, Review and Rating shall be rendered within 30 days of the end of the Agreement term.
The Local Agency shall be notified following each performance Evaluation and Review, and shall
address or correct any identified problem in a timely manner and maintain work progress.
Should the final performance Evaluation and Review determine that the Local Agency demonstrated a
gross failure to meet the performance measures established hereunder, the Executive Director of the
Colorado Department of Personnel and Administration (Executive Director), upon request by COOT,
and showing of good cause, may debar the Local Agency and prohibit the Local Agency from bidding
on future Agreements. The Local Agency may contest the final Evaluation, Review and Rating by: (a)
filing rebuttal statements, which may result in e ither removal or correction of the evaluation (CRS §24-
105-102(6)), or (b) under CRS §24-105-102(6), exercising the debarment protest and appeal rights
provided in CRS §§24-109-106, 107, 201 or 202, which may result in the reversal of the debarment
and reinstatement of the Local Agency, by the Executive Director, upon showing of good cause.
22. FEDERAL REQUIREMENTS
The Local Agency and/or their contractors, subcontractors, and consultants shall at all times during
the execution of this Agreement strictly adhere to, and comply with, all applicable federal and state
laws, and their implementing regulations, as they currently exist and may hereafter be amended. A
listing of certain federal and state taws that may be applicable are described in Exhibit I, Exhibit J
and Exhibit K .
23. DISADVANTAGED BUSINESS ENTERPRISE (DBE)
The Local Agency will comply with all requirements of Exhibit G and the Local Agency Contract
Administration Checklist regarding DBE requirements for the Wor1<, except that if the Local Agency
desires to use its own DBE program to implement and administer the DBE provisions of 49 C .F .R.
Part 26 under this Agreement, it must submit a copy of its program 's requirements to the State for
review and approval before the execution of this Agreement. If the Local Agency uses any State-
approved DBE program for this Agreement, the Local Agency shall be solely responsible to defend
that DBE program and its use of that program against all legal and other challenges or complaints, at
its sole cost and expense. Such responsibility includes, without limitation, determinations concerning
DBE eligibility requirements and certification, adequate legal and factual bases for DBE goats and
good faith efforts. State approval (if provided) of the Local Agency's DBE program does not waive or
modify the sole responsibility of the Local Agency for use of its program .
24. DISPUTES
Except as otherwise provided in this Agreement, any dispute concerning a question of fact arising
under this Agreement wh ich is not disposed of by agreement shall be decided by the Chief Engineer
Page 18 of 24
of the Department of Transportation. The decision of the Chief Engineer will be final and conclusive
unless , within 30 calendar days after the date of receipt of a copy of such written decision , the Local
Agency mails or otherwise furnishes to the State a written appeal addressed to the Executive Director
of COOT . In connection with any appeal proceeding under this clause , the Local Agency shall be
afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final
decision of a dispute hereunder, the Local Agency shall proceed diligently with the performance of this
Agreement In accordance with the Chief Engineer's decision . The decision of the Executive Director
or his duly authorized representative for the determination of such appuls shall be final and
conclusive and serve as final agency action . This dispute clause does not preclude consideration of
questions of law in connection with decisions provided for herein . Nothing in this Agreement, however,
shall be construed as making final the decision of any administrative official, representative, or board
on a question oflaw.
25. GENERAL PROVISIONS
A. Assignment
The Local Agency's rights and obligations hereunder are personal and may not be transferred,
assigned or subcontracted without the prior written consent of the State. Any attempt at
assignment, transfer, or subcontracting without such consent shall be void . All assignments and
subcontracts approved by the Local Agency or the State are subject to all of the provisions
hereof. The Local Agency shall be solely responsible for all aspects of subcontracting
arrangements and performance .
B. Binding Effect
Except as otherwise provided In §25(A), all provisions herein contained, including the benefits
and burdens, shall extend to and be binding upon the Parties' respective heirs, legal
representatives, successors, and assigns.
C. Captions
The captions and headings in this Agreement are for convenience of reference only, and shall
not be used to interpret, define, or limit its provisions .
D. Counterparts
This Agreement may be executed in multiple identical original counterparts, all of which shall
constitute one agreement.
E. Entire Understanding
This Agreement represents the complete integration of all understandings between the Parties
and all prior representations and understandings, oral or written, are merged herein. Prior or
contemporaneous addition , deletion, or other amendment hereto shall not have any force or
affect whatsoever, unless embodied herein.
F. Indemnification ·General
If Local Agency is not a "public entity" within the meaning of the Colorado Governmental
Immunity Act, CRS §24-10-101, et seq ., the Local Agency shall indemnify, save , and hold
harmless the State, its employees and agents , against any and all claims, damages, liability and
court awards including costs , expenses, and attorney fees and related costs, Incurred as a
result of any act or omission by the Local Agency, or its employees, agents, subcontractors or
assignees pursuant to the terms of this Agreement. This clause is not applicable to a Local
Agency that Is a "public entity" within the meaning of the Colorado Governmental Immunity Act,
CRS §24-10-101, et seq.
G. Jurlsdctlon and Venue
All suits , actions , or proceedings related to this Agreement shall be held in the State of Colorado
and exclusive venue shall be In the City and County of Denver.
H. LlmltatJons of Liability
Any and all limitations of liability and/or damages In favor of the Local Agency contained in any
document attached to and/or incorporated by reference into this Agreement , whether referred to
as an exhibit, attachment, schedule, or any other name , are void and of no effect. This includes,
Page 19 of24
but is not necessarily limited to, limitations on (I) the types of liabilities, (II) the types of
damages, (Ill) the amount of damages, and (lv) the source of payment for damages.
I. Modtflcatfon
I. By the Parties
Except as specifically provided in this Agreement, modifications of this Agreement shall not
be effective unless agreed to In writing by both parties In an amendment to this Agreement,
property executed and approved in accordance with applicable Colorado State law, State
Fiscal Rules , and Office of the State Controller Policies, including, but not limited to, the
policy entitled MODIFICATIONS OF AGREEMENTS -TOOLS AND FORMS.
II. By Operation of Law
This Agreement is subject to such modifications as may be required by changes in Federal
or Colorado State law, or their implementing regulations . Any such required modification
automatically shall be incorporated into and be part of this Agreement on the effective date of
such change, as if fully set forth herein.
J. Order of Precedence
The provisions of this Agreement shall govern the relationship of the State and the local
Agency. In the event of conflicts or inconsistencies between this Agreement and its exhibits and
attachments, such conflicts or inconsistencies shall be resolved by reference to the documents
in the following order of priority:
I. Colorado Special Provisions,
II. The provisions of the main body of this Agreement,
Ill. Exhibit A (Scope of Work).
iv. Exhibit B (Local Agency Resolution),
v . Exhibit C (Funding Provisions),
vi. Exhibit D (Option Letter),
vii. Exhibit E (Local Agency Contract Administration Checklist),
viii. Other exhibits in descending order of their attachment.
K . Severability
Provided this Agreement can be executed and performance of the obligations of the Parties
accomplished within its intent, the provisions hereof are severable and any provision that is
declared invalid or becomes inoperable for any reason shall not affect the validity of any other
provision hereof.
L. Survival of Certain Agreement Terms
Notwithstanding anything herein to the contrary, provisions of this Agreement requiring
continued performance, compliance, or effect after termination hereof, shall survive such
termination and shall be enforceable by the State if the Local Agency fa ils to perform or comply
as required .
M. Taxes
The State is exempt from all federal excise taxes under IRC Chapter 32 (No. 84-730123K) and
from all State and local government sales and use taxes under CRS §§39-26-1 01 and 201 et
seq. Such exemptions apply when materials are purchased or services rendered to benefit the
State; provided however, that certain political subdivisions (e.g .• City of Denver) may require
payment of sales or use taxes even though the product or service is provided to the State. The
Local Agency shall be solely liable for paying such taxes as the State is prohibited from paying
for or reimbursing the Local Agency for them.
N . Third Party Beneficiaries .
Enforcement of this Agreement and all rights and obligations hereunder are reserved solely to
the Parties, and not to any third party. Any services or benefits which third parties receive as a
result of this Agreement are incidental to the Agreement, and do not create any rights for such
third parties.
0. Waiver
Page 20 of24
Waiver of any breach of a term , provision , or requirement of this Agreement, or any right or
remedy hereunder, whether explicitly or by lack of enforcement, shall not be construed or
deemed as a waiver of any subsequent breach of such term, provision or requirement, or of any
other term , provision , or requirement.
THE REST OF THIS PAGE INTENnONALL Y LEFT BLANK
Page 21 of24
26 . COLORADO SPECIAL PROVISIONS
The Special Provisions apply to all Agreements except where noted in Italics.
1. CONTROLLER•s APPROVAL. CRS §24-30-202 (1).
This Agreement shall not be deemed valid until it has been approved by the Colorado State Controller or
designee.
2. FUND AVAILABIUTY. CRS §24-30-202(6.6).
Financial obligations of the State payable after the current fiscal year are contingent upon funds for that
purpose be i ng appropriated, budgeted , and otherwise made available.
3. GOVERNMENTAL IMMUNITY.
No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied ,
of any of the immunities , rights , benefits , protections , or other provisions , of the Colorado Governmental
Immunity Act , CRS §24-10-1 01 et seq ., or the Federal Tort Claims Act, 28 U .S.C. §§1346(b) and 2671 et
seq., as applicable now or hereafter amended.
4. INDEPENDENT CONTRACTOR
The Local Agency shall perform its duties hereunder as an i ndependent contractor and not as an
employee. Neither The Local Agency nor any agent or employee of The Local Agency shall be deemed to
be an agent or employee of the State. The Local Agency and its employees and agents are not entitled to
unemployment insurance or workers compensation benefrts through the State and the State shall not pay
for or otherwise provide such coverage for The Local Agency or any of its agents or employees.
Unemployment insurance benefits shall be available to The Local Agency and its employees and agents
only if such coverage is made avai lable by The Local Agency or a third party. The Local Agency shall pay
when due all applicable employment taxes and i ncome taxes and local head taxes incurred pursuant to
this Agreement. The Local Agency shall not have authorization , express or implied, to bind the State to
any Agreement , liabil ity or understandi ng , except as expressly set forth herei n. The Local Agency shall
(a) provide and keep in force workers' compensation and unemployment compensation insurance in the
amounts requ ired by law. (b) pro vide proof thereof when requested by the State , and (c) be solely
respons ible for its acts and those of its employees and agents.
5. COMPLIANCE WITH LAW.
The Local Agency sha ll st ri ctly comply with all applicable federal and State laws, rules , and regulations i n
effect or hereafter established , i ncluding , without l im itation , laws applicable to dis crim ination and unfair
employment practices.
6. CHOICE OF LAW.
Colorado law, and ru les and regulations issued pursuant thereto, shall be applied in the interpretation ,
execution , and enforcement of this Agreement. Any provi sion included or incorporated herei n by
reference which conflicts with said laws, rules , and regulations shall be null and void . Any provision
incorporated herei n by reference which purports to negate this or any other Special Provision in whole or
i n part shall not be valid or enforceable or available in any action at law, whether by way of complaint.
defense, or otherwi se . Any provision rendered null and void by the operation of this provision shall not
invalidate the remainder of this Agreement, to the extent capable of execution.
7 . BINDING ARBITRATION PROHIBITED.
The State of Colorado does not agree to binding arbitration by any extra-judicial body or person . Any
provi sion to the contrary i n this contact or i ncorporated herein by reference sha ll be null and void .
8. SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00.
State or other public funds payable under this Agreement shall not be used for the acquisition, operation ,
or maintenance of computer software in violation of federal copyright laws or applicable licensing
restrictions . The Local Agency hereby certifies and warrants that, during the term of this Agreement and
any extensions , The Local Agency has and shall maintain in place appropriate systems and controls to
prevent such improper use of public funds . If the State determines that The Local Agency is in violation of
this provision , the State may exercise any remedy available at law or in equity or under this Agreement,
including, without limitation , immediate termination of thi s Agreement and any remedy consistent with
federal copyright laws or applicable licensing restrictions .
9. EMPLOYEE FINANCIAL INTEREST. CRS §§24-18-201 and 24-50-507.
The signatories aver that to their knowledge , no employee of the State has any personal or beneficial
interest whatsoever i n the service or property described in th is Agreement. The Loca l Agency has no
interest and shall not acqu i re any inte rest . d irect or ind irect , that would conflict i n any manner or degree
Page 22 of24
with the performance of The Local Agency's services and The Local Agency shall not employ any person
having such known interests.
10. VENDOR OFFSET. CRS HU-30-202 (1) and 24-30-202.4.
[Not Appllc.ble to lntergovemmen~lag,..,ents) Subject to CRS §24-30-202 .4 (3.5), the State
Controller may withhold payment under the State's vendor offset intercept system for debts owed to State
agencies for: (a) unpaid child support debts or child support arrearages; (b) unpaid balances of tax,
accrued Interest. or other charges specified in CRS §39-21-101, et seq.; (c) unpaid loans due to the
Student Loan Division of the Department of Higher Education ; (d) amounts required to be paid to the
Unemployment Compensation Fund; and (e) other unpaid debts owing to the State as a result of final
agency determination or judicial action.
11. PUBUC CONTRACTS FOR SERVICES. CRS Sl-17.5-101.
[Not Appllc.ble to AgfNments ret.ting to the offer, luu.nce, or at. of ucurltla, Investment
advl$oty services or fund ma,.,ent services, sponsored projects, lntfHJionmmenml
Agreement:IJ, or Information technology services or products and services} The Local Agency
certifies, warrants, and agrees that it does not knowingly employ or contract with an illegal alien who shall
perform wort< under this Agreement and shall confirm the employment eligibility of all employees who are
newly hired for employment in the United States to perform wort< under this Agreement, through
participation in theE-Verify Program or the State program established pursuant to CRS §8-17.5-
102(5)(c), The Local Agency shall not knowingly employ or contract with an illegal alien to perform wort<
under this Agreement or enter into a contract with a subcontractor that fails to certify to The Local Agency
that the subcontractor shall not knowingly employ or contract with an illegal alien to perform wort< under
this Agreement. The Local Agency (a) shall not use E-Verify Program or State program procedures to
undertake pre-employment screening of job applicants while this Agreement is being performed , (b) shall
notify the subcontractor and the contracting State agency within three days If The Local Agency has
actual knowfedge that a subcontractor Is employing or contracting with an illegal alien for wort< under this
Agreement, (c) shall terminate the subcontract if a subcontractor does not stop employing or contracting
with the illegal alien within three days of receiving the notice , and (d) shall comply with reasonable
requests made in the course of an investigation, undertaken pursuant to CRS §8-17.5-102(5), by the
Colorado Department of Labor and Employment. If The Local Agency participates in the State program,
The Local Agency shall deliver to the contracting State agency, Institution of Higher Education or political
subdivision , a written , notarized affirmation , affirming that The Local Agency has examined the legal wort<
status of such employee, and shall comply with all of the other requirements of the State program. If The
Local Agency fails to comply with any requirement of this provision or CRS §8-17.5-101 et seq., the
contract.ing State agency, institution of higher education or political subdivision may terminate this
Agreement for breach and , if so terminated, The Local Agency shall be liable for damages.
f2. PUBLIC CONTRACTS WITH NATURAL PERSONS. CRS §24-76.5--101.
The Local Agency, If a natural person eighteen (18) years of age or older, hereby swears and affirms
under penalty of perjury that he or she (a) Is a citizen or otherwise lawfully present in the United States
pursuant to federal law, (b) shall comply with the provisions of CRS §24-76.5-101 et seq., and (c) has
produced one form of identiftcation required by CRS §24-76.5-1 03 prior to the effective date of this
Agreement.
SPs Effective 1/1/09
THE REST OF THIS PAGE INTENT10NALL Y LEFT BLANK
Page 23 of24
27. SIGNATURE PAGE
Agreement Routing Number 13 HA6 54978
THE PARTIES HERETO HAVE EXECUTED THIS AQBEEMENJ
• Persons 1lgnlng for The Loeal Agency hereby .weer and amrm that they are authortud to act on The Local
Asa-ncy'• behalf and acknowledge that the State II relying on their rep,...ntatiOM to that etr.ct.
THE LOCAL AGENCY
CITY OF WHEA I RIDGE
STATE OF COLORADO
Print: ..:Te-rrv 12, iUUu.'
John W . Hlckenlooper, GOVERNOR
Colorado Department of Transportation
Donald E. Hunt, Executive Director
By: T imothy J . Harris, P .E ., Chief Engineer
Date :-----------
Date: ·5JJ3 I
2nd The Local Agency Signature if Needed
Print:----------------
Title: ------------------
·signature
Date:-----------
ALL AGREEMENTS REQUIRE APPROVAL BY THE STATE CONTROLLER
CRS §24-30-202 requires the State Controller to approve all State Agree menta. Thl1 Agreement II not valid until
signed and dated below by the State Controller or del-aate. The local Agency 11 not autho,Ued to begin
performance until 1uch time. If The local Agency beg in• performing prior thereto, the State of Colorado Ia not
obligated to pay The local Agency for 1uch performance or for any goods and/or services provided hereunder.
STATE CONTROLLER
David J . McDermott. CPA
By: __________________ _
Colorado Department of Transportation
Date : ________ _
Page 24 of 24
28 . EXHIBIT A-SCOPE OF WORK
The eventual project will widen this highway to 6 travel lanes, provide additional tum lanes at key
congested intersections, and Install medians to better manage access. Medians will be added and
possible driveway consolidation will be done to better manage access along the corridor. Bike lanes
and detached sidewalks will also be added to serve additional modes of transportation . Also included
will be new street and pedestrian lights, likely LED, along with streetscape improvements consisting of
landscaping and street furniture .
The goal of the PEL Study will be to establish the Purpose and Need, define the study area for
subsequent phases, develop reasonable alternatives with logical termini and independent utility,
and program priorities, timeframes, and potential funding to be used in updating transportation
plans and transportation improvement programs (TIPs).
The Study will include development and evaluation of alternatives based on consideration of the
Purpose and Need, geometric, planning, and environmental factors , the location of developed
areas, a traffic analysis, and public and agency input. PEL Study alternatives will Initially be
developed based on available environmental and community data, and will be refined through
agency and public input and other on-going studies. Once the feasible alternatives are selected,
interim phasing options will be developed and prioritized to facilitate incremental improvements
that could be done prior to a full widening project.
The intent of the PEL Study analysis is not to identify impacts, but rather to identify potential
roadblocks for those PEL Study alternatives which provide the best balance in meeting the
Purpose and Need and avoiding/minimizing the potential to affect resources during subsequent
study phases.
The Study will be developed and documented in a form that can be incorporated by reference , as
appropriate, in subsequent NEPA document(s). All final deliverables will be of such quality that
they could be incorporated directly or by reference into these NEPA documents.
Exhibit A • Page 1 of 1
29. EXHIBIT 8 -LOCAL AGENCY RESOLUTION
LOCAL AGENCY
ORDINANCE
or
RESOLUTION
Exhibit B-Page 1 of 1
30. EXHIBIT C -FUNDING PROVISIONS STU 1211..081 (19488)
A. Coat of Work Estimate
The local Agency has estimated the total cost the Work to be $768 ,209.00, which is to be funded
as follows:
1 BUDGETED FUNDS
a. Federal Funds (FY 13 STM Metro@ 82.79%) $636,000.00
b. local Agency Matching Funds (FY 13 STM Metro@ 17.21%) $132,209.00
JroTAL BUDGETED FUNDS $768,209.00
2 ESTIMATED COOT ..fNCURRED COSTS
a. Federal Share $0.00
(82.79% of Participating Costs)
b . Local Agency
Local Agency Share of Participating Costs $0.00
Non-Participating Costs (Including Non-Participating
lndirects) $0.00
Estimated to be Billed to local Agency $0.00
I TOTAL ESTIMATED COOT-INCURRED COSTS $0.00
3 ESnMATED PAYMENT TO LOCAL AGENCY
a . Federal Funds Budgeted (1a) $636,000.00
b . Less Estimated Federal Share of COOT-Incurred Costs (2a) $0.00
I TOTAL ESTIMATED PAYMENT TO LOCAL AGENCY $636000.00
FORCDOTENCUMBRANCEPURPOSES
Total Encumbrance Amount $768,209.00
less ROW Acquisition 3111 and/or ROW Relocation 3109 $0.00
Net to be encumbered as foUows : 1$768,209.00
was Element <<<<<>>>> Design 3020 $0.00
WBS Element 19488.10.50 Mise 3404 $768 209.00
was Element <<<<<>>>> Const 3301 $0.00
Exhibit C -Page 1 of 2
B. Matching Funds
The matching ratio for the federal participating funds for this Work is 82.79% federal-aid funds
(CFDA #20.205) to 17.21% local Agency funds , it being understood that such ratio applies only
to the $768,209.00 that is eligible for federal participation , it being further understood that all
non-participating costs are borne by the Local Agency at 100%. If the total participating cost of
performance of the Work exceeds $768,209.00, and additional federal funds are made available
for the Work, the local Agency shall pay 17.21% of all such costs eligible for federal
participation and 100% of all non-participating costs; if additional federal funds are not made
available, the local Agency shall pay all such excess costs. If the total participating cost of
performance of the Work is less than $768,209.00, then the amounts of local Agency and
federal-aid funds will be decreased in accordance with the funding ratio described herein. The
performance of the Work shall be at no cost to the State.
C. Maximum Amount Payable
The maximum amount payable to the Local Agency under this Agreement shall be $636,000.00
(For COOT accounting purposes, the federal funds of $636,000.00 and the local Agency
matching funds of $132,209.00 will be encumbered for a total encumbrance of $768,209.00),
unless such amount is increased by an appropriate written modification to this Agreement
executed before any increased cost is incurred. It is understood and agreed by the parties
hereto that the total cost of the Work stated hereinbefore is the best estimate available , based
on the design data as approved at the time of execution of this Agreement, and that such cost is
subject to revisions (in accord with the procedure in the previous sentence) agreeable to the
parties prior to bid and award.
D. Single Audit Act Amendment
All state and local government and non-profit organizations receiving more than $500,000 from
all funding sources defined as federal financial assistance for Single Audit Act Amendment
purposes shall comply with the audit requirements of OMB Circular A-133 (Audits of States,
local Governments and Non-Profrt Organizations) see also, 49 C.F.R. 18.20 through 18.26 . The
Single Audit Act Amendment requirements applicable to the local Agency receiving federal
funds are as follows :
I. Expenditure less than $500,000
If the Local Agency expends less than $500,000 in Federal funds (all federal sources, not
just Highway funds) in its fiscal year then this requirement does not apply.
il. Expenditure exceeding than $500,000-Highway Funds Only
If the local Agency expends more than $500,000 in Federal funds, but only received federal
Highway funds (C atalog of Federal Domestic Assistance, CFDA 20.205) then a program
specific audit shall be performed. This audit will examine the "financial" procedures and
processes for this program area.
Ill. Expenditure exceeding than $500,000-Multlple Funding Sources
If the Local Agency expends more than $500,000 in Federal funds , and the Federal funds
are from multiple sources (FT A , HUD, NPS, etc.) then the Single Audit Act applies, which is
an audit on the entire organization/entity.
fv. Independent CPA
S ingle Audit shall only be co nducted by an independent C PA, not by an auditor on staff. An
audit is an allowable d irect o r indirect cost.
Exhtbit C -Page 2 of 2