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HomeMy WebLinkAboutResolution-2005-0026 - CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 26 Series of 2005 TITLE: A RESOLUTION APPROVING A CONTRACT WITH THE COLORADO DEPARTMENT OF TRANSPORTATION FOR THE PURCHASE OF SNOW AND ICE CONTROL EQUIPMENT, ALONG WITH AMENDING THE FISCAL YEAR 2005 GENERAL FUND BUDGET TO REFLECT THE APPROVAL OF A SUPPLEMENTAL BUDGET APPROPRIATION IN THE AMOUNT OF $105,000 WHEREAS, the City Council wishes to provide for the early purchase of de-icing equipment funded by a federal grant; and WHEREAS, the City has negotiated a contract with the Colorado Department of Transportation (CDOT), for the purpose of obtaining state approval and oversight for the purchase of the de-icing equipment; and WHEREAS, the cost of the purchase of the de-icing equipment is estimated not to exceed $145,000, and WHEREAS, CDOT will reimburse the City 80% of the costs of the de-icing equipment in year 2006 NOW, THEREFORE, BE IT RESOLVED by the Wheat Ridge City Council, that: Section 1. Contract Approved The contract between the City and CDOT for Project AQC M361-003 purchase of de-icing equipment, is hereby approved and the Mayor and City Clerk are authorized and directed to execute the same - - Section 2,Budqet Amended A supplemental budget appropriation in the amount of $105,000 from General Fund unreserved fund balance to account #01-303-800-809 Section 3.Effective Date Mill' 13> 'wos This Resolution shall be effective immediately upon adoption ft' DONE AND RESOLVED this .:' C) day of " /J / j ,', I! l i ,2005 ( , , Cy f , /,)_ " t 1\ < '< \ /.~ 'C.[L.~"\ '<?<<etchen Cerveny, Mayor -' ATTEST .J ~ RESO 001 2 - STATE OF COLORADO COLORADO DEPARTMENT OF TRANSPORTA nON Region 6 Business Office 2000 South Holh Street Denver Colorado 80222 (303) 757-'-)(,'-)1 ~ . UEPAR\\Jk;~ OF ~~."\nOl'l AQC M361-003 15218 June 23,2005 Tim Paranto City of Wheat Ridge Director ofPubhc Works 7500 West 29th Avenue Wheat RIdge, CO 80215 Dear Mr Paranto, Recently a fully executed orIginal contract should have been mailed to Wheat Ridge regardlllg the purchase of de-Icer eqUIpment Please consider June 20, 2005 as the date of contract executIon. A photocopy ofthe contract IS attached for your records. Please consider thIS letter as the notIce to proceed with the purchase of de-lcer eqUIpment as listed III Exhibit A If you have any questIOns or If you dId not receIve the orIgInal copy of the contract, then please call me, or Jerry Hegwood at (303) 757-9908 SIncerely, /~ ti~/J b- CHARLES E. STEVENsoT \ 1/ . BusIlless Manager CES/dh/jh Enclosures cC' Hsu Project File Suspense File (T-21/ADV$) PROJECT AQC M361-003, (15218) REGION 06 (RP) Rev 10/03 05 HA6 00073 CMS ill 05-122 CONTRACT THIS CONTRACT made thiS~~ of ~ 20.6by and between the State of Colorado for the use and benefit of the Colorado Department of Transportation hereinafter referred to as the State and CITY OF WHEAT RIDGE, 7500 West 29th Avenue, Wheat RIdge, Colorado, FEIN' 840595832, heremafter referred to as the "Contractor" or the "Local Agency" RECIT ALS 1 Authonty exists m the law and funds have been budgeted, appropnated and otherwise made available and a suffiCIent uncommitted balance thereof remains available for payment ofproject and Local Agency costs m Fund Number 400, Appropriation Code 010, Organization Number 9991, Program 2000, Function 3401, Object 2312 1P, Phase M, ReportIllg Category 6800, Contract Encumbrance Number 15218, (Contract Encumbrance Amount. $0 00). 2, ReqUlred approval, clearance and coordIllation has been accomplished from and with appropriate agencies. 3 Pursuant to Title I, Subtitle A, SectIOn 1108 ofthe Transportation Equity Act for the 2151 Century of 1998 (TEA-21) and to applicable provisions of Title 23 of the United States Code and implementIllg regulations at Title 23 ofthe Code ofF ederal Regulations, as may be amended, (collectively referred to heremafter as the "Federal PrOVIsIOns"), certain federal funds have been and will III the future be allocated for transportation projects requested by Local Agencies and eligible under the Surface TransportatIOn Improvement Program that has been proposed by the State and approved by the Federal Highway AdministratIOn ("FHW A"), heremafter referred to as the "Program." 4 Pursuant to 23 C.F.R. S 630 701, Subpart G, the construction of a Local Agency Federal-Aid Project may be advanced without obligating Federal Funds allocated to the State. Under that program, lfthe Local Agency applies to and is approved by the Federal Highway AdministratIOn for advanced authonzation of Federal funding for the project, and if the Local Agency agrees to provide up-front all the Federal and Local Match fundmg needed for the project, the Local Agency will be reimbursed the Federal share from Federal funds in a future fiscal year(s), subject to FHW A makIllg funds for that project available to the State, 5. Pursuant to 9 43-1-223, C.R.S and to applicable portions of the Federal Provisions, the State IS responsible for the general administration and supervision of performance of projects in the Program, mcluding the admInistration of federal funds for a Program project performed by a Local Agency under a contract With the State. Page I of 18 6 The Local Agency has requested that a certain local transportation project be funded as part of the Program, and by the date of execution of thiS contract, the Local Agency and/or the State has completed and submitted a prehmmary versIOn of CDOT form #463 describing the general nature of the Work. The Local Agency understands that, before the Work begms, form #463 may be revIsed as a result of design changes made by CDOT, in coordmatIon with the Local Agency, in ItS mternal reVlew process. The Local Agency desires to perform the Work described m form #463, as lt may be revised. 7 Federal funds are not currently available for this project, and the Local Agency desires to advance the construction of that project pursuant to 23 C.P.R. S 630 701, Subpart G. The Local Agency states it has read, understood, and complies with Subpart G. 8. The Local Agency has applied for and recelved advanced authorization for reimbursement of future federal-aid funds that are anticipated to be budgeted and made available by FHW A to the State m fiscal year 2006, as shown m the latest Transportatlon Improvement Plan (TIP) for project AQC M361-244 (15218) That project is for purchase of one V-box spreader Unit and two combination sand/liquld spreader Units for Wheat RIdge, Colorado, as more speCifically described in Exhibit A (The form #463 and/or a "Scope of Work") in Wheat Ridge, Colorado, hereIllafterreferred to as "the project" or "the work" The Local Agency's application and FHW A's subsequent approval for advanced authorization are attached hereto and made a part hereof. 9 The matching ratIo for thiS federal-aid project is antiCipated to be 80% federal-aid funds to 20% Local Agency funds The Local Agency understands that such ratio applies only to such costs as are eligible for federal participatIOn. The Local Agency also understands that all non-partlcipatmg costs shall be borne by the Local Agency at 100%. The Local Agency further understands that the Local Agency shall advance 100% of the estimated Federal-Aid and the Local Match funds for the project. 10. The Local Agency understands and accepts the fact that future reimbursement of the Federal fundmg for the cost of the work is contmgent upon the FHW A makmg such funds aVailable to the State for that Project III future fiscal years, and to the budgetmg of such funds by the Transportation Commission for reimbursement to the Local Agency. The Local Agency understands that the FHW A has not currently obligated Federal funds for the project. The Local Agency also understands that the State shall have no obligation to repay any funds advanced by the Local Agency for the cost of the work from State funds, and that the State shall have no obligation to repay any funds advanced by the Local Agency unless and untIl funds are made available by the FHW A and Budgeted by the Transportation CommiSSIOn for that purpose. 11. The Local Agency deSlres to comply with the Federal PrOVisions and other applicable reqUirements, mcluding the State's general admmlstratlOn and supervision of the Project through this contract, III order to obtain federal funds. 12. The Local Agency has estimated the total cost of the Work and lS prepared to provide its match share of the cost, as evidenced by an appropriate ordinancelresolution or other authonty letter, which expressly authonzes the Local Agency the authonty to enter mto this contract and to expend its match share of the Work. A copy of such ordinance/resolution or authonty letter is attached hereto as Exhibit Page 2 of 18 13 This contract is executed under the authority of SS 29-1-203, 43-1-110; 43-1-116, 43-2-101 (4)(c) and 43-2-144, C.R.S and Exhibit B. 14 The Local Agency IS adequately staffed and sUItably eqUIpped to undertake and satIsfactonly complete some or all of the Work. 15. The Local Agency can more advantageously perfoon the Work. THE PARTIES NOW AGREE THAT Section 1. Scope of Work The Project or the Work under this contract shall consist of the purchase of one V -box spreader umt and two combmatlOn sand/liqUId spreader umts, III Wheat Ridge, Colorado, as more specifically described III Exhibit A. Section 2. Order of Precedence In the event of conflicts or Illconsistencies between thiS contract and ItS exhibIts, such conflIcts or IllconsistencIes shall be resolved by reference to the documents m the following order of prionty: 1 Special ProvISIons contained in sectIOn 28 of this contract 2. This contract 3. Exhibit A (Scope of Work) 4 Exhibit C (Fundmg Provisions) 5 Exhibit D (CertificatIOn for Federal-Aid Contracts) 6 Exhibit E (DBE Requirements) 7. Exhibit F (Contract Modification Tools) 8 Other Exhibits in descending order of their attachment. Section 3. Term ThiS contract shall be effective upon approval of the State Controller or designee, or on the date made, whichever is later The teon of this contract shall contmue through the completion and final acceptance of the Project by the State, FHW A and the Local Agency. Section 4. Project Funding Provisions The Local Agency has estimated the total cost of the Work and is prepared to provide its match share of the cost, as evidenced by an appropriate ordinance/resolution or other authority letter, which expressly authonzes the Local Agency the authority to enter Illto this contract and to expend its match share of the Work. A copy of such ordinance/resolutIOn or authority letter IS attached hereto as Exhibit B Page 3 of 18 The fundmg provISIons for the Project are attached hereto as Exhibit C The Local Agency shan provide Its share of the funds for the Project as outlIlled m Exhibit C Section S. Project Payment Provisions A. Contmgent upon antiCipated federal funds bemg made aVailable by FHW A for thiS purpose and budgeted by the TransportatIOn CommIssion in fiscal year 2006, the State will reImburse the Local Agency, after said funds have been budgeted and approved, for the federal-aid share of the project charges followmg the State's review and approval of such charges, subject to the terms and conditIOns of thIs contract. Provided, however, that charges incurred by the Local Agency prior to the date of FHW A advanced authorization for the project and prior to the date thIS contract is executed by the State Controller or hiS deSignee will not be charged by the Local Agency to the project, and WIll not be reimbursed by the State, absent specific FHW A approval thereof. B The State will reimburse the Local Agency's reasonable, allocable, allowable costs of performance of the Work, not exceedIllg the maximum total amount described m Exhibit C The applicable pnnclples described III 49 C.F.R. 18 Subpart C and 49 C.F,R. 18.22 shall govern the allow ability and allocabihty of costs under thiS contract. The Local Agency shall comply With all such pnnclples. To be eligible for reimbursement, costs by the Local Agency shall be. in accordance With the proVISIOns of Exhibit C and With the terms and conditIOns of thiS contract; 2. necessary for the accomphshment of the Work, 3 reasonable in the amount for the goods and services provided, 4 actual net cost to the Local Agency (i.e. the price paid mmus any refunds, rebates, or other items of value received by the Local Agency that have the effect of reducmg the cost actually Illcurred), 5 Illcurred for Work performed after the effective date ofthls contract; 6 satIsfactonly documented, C The Local Agency shall establish and maintam a proper accountmg system in accordance With generally accepted accountIllg standards (a separate set of accounts, or as a separate and Illtegral part of ItS current accountIllg scheme) to assure that project funds are expended and costs accounted for m a manner conSIstent With thiS contract and project objectives. All allowable costs charged to the project, includmg any approved servIces contributed by the Local Agency or others, shall be supported by properly executed payrolls, time records, inVOices, contracts or vouchers evidencing m detail the nature of the charges. 2. Any check or order drawn up by the Local Agency, includmg any item which IS or will be chargeable against the project account shall be drawn up only m accordance With a properly signed voucher then on file III the office of the Local Agency, which will detail the purpose for which said check or order IS drawn. All checks, payrolls, invoices, contracts, vouchers, orders or other accounting documents shall be clearly Identified, readily accessible, and to the extent feasible, kept separate and apart from Page 4 of 18 all other such documents, D Upon executIOn of thIs contract, the State IS authonzed, in Its discretion, to perform any necessary ammmstrative support services pursuant to thIs contract. These servIces may be performed pnor to and III preparatIOn for any conditions or requirements ofthis contract, mcludmg pnor FHW A approval of Work. The Local Agency understands and agrees that the State may perform such services, and that payments for such servIces shall be at no cost to the State but shall be as prOVIded for m Exhibit C. At the request of the Local Agency, the State shall also provide other assistance pursuant to this contract as may be agreed m wntmg. In the event that federal-aid project funds rem am aVailable for payment, the Local Agency understands and agrees the costs of any such servIces and assistance shall be paid to the State from project funds at the applicable rate. However, in the event that such fundIllg IS not made available or IS Withdrawn for thiS contract, or if the Local Agency termIllates this contract pnor to project approval or completIOn for any reason, then all actual Illcurred costs of such servIces and assIstance proVIded by the State shall be the sole expense of the Local Agency E. lfthe Local Agency IS to be billed for CDOT mcurred costs, the billIllg procedure shall be as follows: Upon receipt of each bill from the State, the Local Agency will remit to the State the amount billed no later than 60 days after receipt of each bill. Should the Local Agency faIl to pay moneys due the State wlthm 60 days of demand or WIthin such other penod as may be agreed between the parties hereto, the Local Agency agrees that, at the request of the State, the State Treasurer may Withhold an equal amount from future apportIOnment due the Local Agency from the Highway Users Tax Fund and to pay such funds directly to the State. Interim funds, until the State IS reimbursed, shall be payable from the State Highway Supplementary Fund (400) 2. If the Local Agency fails to make timely payment to the State as reqUired by tills section (wIthm 60 days after the date of each bill), the Local Agency shall pay Illterest to the State at a rate of one percent per month on the amount ofthe payment which was not made in a timely manner, until the billing is paid in full. The mterest shall accrue for the penod from the reqUired payment date to the date on whIch payment is made. F In the event that Federal funds are budgeted and approved in the project, the Local Agency will prepare and submit to the State monthly charges for costs Illcurred relative to the project. The Local Agency will prepare project charges III accordance With the State's standard poliCies, procedures, and standardized blllmg format attached hereto and made a part hereof as Exhibit D. The Local Agency shall not bill the State for reImbursement of federal funds until such funds have been budgeted and approved III the project. G CDOT requires an annual accountIllg of all Local Agency costs that are anticipated to be reimbursed. The Local Agency shall prepare a statement of all costs mcurred on the project for whICh Federal funds are antiCipated to be reimbursed and shall submIt such a statement on or before June 30th of each state fiscal year. Page 5 of 18 1 Payments pursuant to this contract shall be made as earned, III whole or in part, from available funds, encumbered for the purchase ofthe described services. The liability of the State, at any time, for such payments shall be limlted to the amount remaining of such encumbered funds. 2. In the event thiS contract IS termmated, final payment to the Local Agency may be Withheld at the discretIOn of the State untIl completion of final audIt. 3 Incorrect payments to the Local Agency due to omission, error, fraud or defalcatIOn shall be recovered from the Local Agency by deduction from subsequent payment under thiS contract or other contracts between the State and Local Agency, or by the State as a debt due to the State. 4 Any costs Illcurred by the Local Agency that are not allowable under 49 c.P.R. 18 shall be reimbursed by the Local Agency, or offset agamst current obligatIOns due by the State to the Local Agency, at the State's election. H. The Local Agency shall provide to the State, in advance, Local Agency funds in the full amount of the estimated total costs of that part or parts of the work: A) for which the State is the responsible party under Section IV, and B) the performance of which the state will contract out. The state will use such Local Agency funds to encumber a State contract to pay a contractor's performance of that work. The Local Agency shall provide that amount to the state no later than 30 days after the executIon of this contract. UntIl and unless the Local Agency proVides that full amount to the State, the State shall have no obhgatlOn to proceed With that partes) of the work. Section 6. State and Local Agency Commitments The Local Agency Contract AdmIllistration Checklist m Exhibit G describes the Work to be performed and assigns responsibIlity of that Work to either the Local Agency or the State. The "Responsible Party" referred to m thiS contract means the Responsible Party as IdentIfied in the Local Agency Contract AdmmIstratlOn Checklist m Exhibit G. A. DeSIgn [Ifapphcable] 1. lfthe Work mcludes prelImmary deSign or final deSign (the "Constructron Plans"), or deSign work sheets, or speCIal provIsions and estImates (collectively referred to as the "Plans"), the responsible party shall comply WIth the followmg reqUirements, as applIcable' a. perform or proVide the Plans, to the extent required by the nature of the Work. b. prepare final design (Constructron Plans) in accord with the reqUIrements of the latest editIOn of the American Association of State Highway TransportatIOn Officials (AASHTO) manual or other standard, such as the Umform Building Code, as approved by CDOT. c. prepare special provisions and estimates in accord with the State's Roadway and Bridge Design Manuals and Standard Specifications for Road and Bridge Construction or Local Agency specifications if approved by CDOT. Page 6 of 18 d. Illclude details of any reqUired detours In the Plans, III order to prevent any Illterference of the construction work and to protect the travelIllg public. e. stamp the Plans produced by a Colorado Registered ProfeSSIOnal Engmeer. f. provide final assembly of Plans and contract documents. g. be responsible for the Plans bemg accurate and complete. h. make no further changes III the Plans followIllg the award of the constructIOn contract except by agreement III writing between the parties. The Plans shall be considered final when approved and accepted by the parties hereto, and when final they shall be deemed incorporated herein. 2. If the Local Agency is the responsible party: a. The local agency shall comply With the reqUirements ofthe Amencans WIth DIsabihtles Act (ADA), and applicable federal regulatIOns and standards as contamed m the document "ADA Accessibihty ReqUirements III CDOT Transportatlon ProJects" b It shall afford the State ample opportumty to review the Plans and make any changes III the Plans that are directed by the State to comply With FHW A reqUirements. c It may enter into a contract With a consultant to do all or any portIOn of the Plans and/or of construction admmistratlOn. ProVided, however, that if federal-aid funds are Illvolved in the cost of such work to be done by a consultant, that consultant contract (and the performance/provIsIOn ofthe Plans under the contract) must comply with all applicable requirements of 23 CFR Part 172 and with any procedures ImplementIllg those requirements as proVided by the State, Including those m Attachment #1 (Exhibit H) attached hereto Ifthe Local Agency does enter mto a contract with a consultant for the Work. (I) It shall submit a certIficatIon that procurement of any deSign consultant contract complied with the requirements of23 CFR 172.5( d) pnor to entenng Illto contract. The State shall either approve or deny such procurement. If dellled, the Local Agency may not enter into the contract. (2) It shall ensure that all changes in the consultant contract have pnor approval by the State and FHW A. Such changes III the contract shall be by written supplement agreement. As soon as the contract with the consultant has been awarded by the Local Agency, one copy of the executed contract shall be submitted to the State. Any amendments to such contract shall also be submitted. (3) it shall require that all consultant billings under that contract shall comply WIth the State's standardized billing format. Examples of the billmg formats are available from the CDOT Agreements Office. (4) It (or Its consultant) shall use the CDOT procedures described III Attachment 1 [ change] to administer that deSign consultant subcontract, to comply With 23 CFR 172.5(b) and (d). Page 7 of 18 (5) It may expedite any CDOT approval of ItS procurement process and/or consultant contract by submitting a letter to CDOT from the certifying Local Agency's attorney/authonzed representative certlfymg compliance With Attachment 1 [change] and 23 CFR 1 72. 5 (b) and (d) (6) it shall ensure that its consultant contract complies With the reqUirements of 49 CFR 18.36(i) and contams the followmg language verbatim: (a) "The desIgn work under thiS contract shall be compatible With the reqUirements of the contract between the Local Agency and the State (which IS mcorporated herem by thiS reference) for the design/constructIOn of the project. The State is an mtended thIrd party benefiCiary of this contract for that purpose." (b) "Upon advertisement ofthe project work for constructIOn, the consultant shall make aVailable services as requested by the State to assist the State m the evaluation of constructIOn and the resolutlOn of construction problems that may anse during the construction of the project." (c) "The consultant shall review the constructlOn contractor's shop drawings for conformance With the contract documents and compliance with the prOVisions of the State's publIcatlOn, Standard SpeCificatIOns for Road and Bndge ConstructIOn, m connectIOn With this work." d, The State, in ItS discretlOn, Will review construction plans, special proVISIons and estimates and will cause the Local Agency to make changes therein that the State determines are necessary to assure compliance with State and FHW A reqUirements. B. Construction [lfapphcable] l. If the Work mcludes construction, the responsible party shall perform the construction III accordance with the approved design plans and/or admiruster the constructIOn allm accord with the Local Agency Contract AdmimstratlOn CheckliSt. Such admIlllstratlon shall mclude project mspection and testIllg; approving sources of materials, performmg reqUired plant and shop mspections; documentatIOn of contract payments, testing and mspection actIVities; preparing and approvmg pay estimates; preparing, approvIllg and secunng the fundIllg for contract modification orders and mmor contract revisions, processing contractor claims; constructIon superviSIOn, and meetmg the Quahty Control requirements of the FHW A/CDOT Stewardship Agreement, as described in the Local Agency Contract AdmmlstratIon Checklist. 2. The State shall have the authonty to suspend the Work, wholly or in part, by giving wntten notIce thereof to the Local Agency, due to the failure ofthe Local Agency or its contractor to correct project conditions whIch are unsafe for workers or for such Page 8 of 18 -- pen ods 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 III the public Illterest. 3 If the Local Agency IS the responsible party: a. It shall appoint a qualified profeSSIOnal engmeer, licensed in the State of Colorado, as the Local Agency Project EngIlleer (LAPE), to perform that administration. The LAPE shall admlmster the project III accordance With thiS contract, the reqUirements of the construction contract and applicable State procedures. b Ifblds are to be let for the construction of the project, It shall advertise the call for bids upon approval by the State and award the constructIOn contract(s) to the low responsible bldder(s) upon approval by the State (I) III advertising and awardmg the bid for the construction of a federal- aid project, the Local Agency shall comply WIth applicable requirements of 23 USC S 112 and 23 CFR Parts 633 and 635 and C.R.S. 924-92-101 et seq Those reqUirements include, without hmItatlOn, that the Local Agency/contractor shall mcorporate Form 1273 (Exhibit n III ItS entirety verbatim into any subcontract(s) for those services as terms and conditIOns therefore, as required by 23 CFR 633 102(e). (2) the Local Agency has the option to accept or reject the proposal of the apparent low bidder for work on which competitive bids have been received. The Local Agency must declare the acceptance or rejection WIthin 3 workIllg days after said bids are publicly opened. (3) by indicating its concurrence in such award, the Local Agency, acting by or through ItS duly authonzed representatives, agrees to proVide additIOnal funds, subject to their availability and appropnatlOn for that purpose, If reqUired to complete the Work under thIS project If no addItIOnal federal-aid funds will be made available for the project. This paragraph also apphes to projects advertised and awarded by the State. c. If all or part ofthe construction work is to be accomplished by Local Agency personnel (i.e. by force account), rather than by a competitive blddmg process, the Local Agency will ensure that all such force account work is accomplIshed III accordance With the pertment State specifications and requirements with 23 CFR 635, Subpart B, Force Account Construction. (1) Such work will normally be based upon estimated quantities and firm unit pnces agreed to between the Local Agency, the State and FHW A in advance ofthe Work, as provided for III 23 CFR 635.204(c). Such agreed umt pnces shall constitute a commitment as to the value of the Page 9 ofl8 ...- Work to be performed. (2) An alternative to the above is that the Local Agency may agree to participate In the Work based on actual costs of labor, equipment rental, materials supplies and supervision necessary to complete the Work. Where actual costs are used, eligibility of cost Items shall be evaluated for compliance with 48 CFR Part 31. (3) Rental rates for publicly owned equipment will be determined In accordance with the State's Standard Specifications for Road and Bndge Construction S 109.04 (4) All force account work shall have prior approval of the State and/or FHW A and shall not be imtiated untIl the State has issued a written notice to proceed. C. State's obligations 1. The State will perform a final project Inspection prior to project acceptance as a Quality Control/Assurance activity When all Work has been satisfactorily completed, the State will sign the FHW A Fonn 1212. 2. Notwithstanding any consents or approvals given by the State for the Plans, the State will not be liable or responsible in any manner for the structural design, details or constructIOn of any major structures that are deSigned by or are the responsibility of the Local Agency as identified III the Local Agency Contract Admimstration Checklist, Exhibit G, within the Work of thiS contract. 3 If the Work involves construction, the State shall have the authority to suspend the Work, wholly or in part, by giving wntten notice thereof to the Local Agency, due to the failure of the Local Agency or ItS construction contractor to correct project conditions which are unsafe for the Workmen 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 Illterest. Section 7. ROW Acquisition and Relocation Pnor to this project being advertised for bids, the Responsible Party will certify in writing to the State that all right of way has been acquired III accordance with the applicable State and federal regulations, or that no additional right of way is reqUired. Any acquisitIOn/relocation activities must comply with all federal and state statutes, regulations, CDOT policies and procedures, 49 CFR Part 24, the government Wide Uniform Act regulation, the FHW A Project Development Guide and CDOT's Right of Way Operations Manual. Allocation of Responsibilities can be as follows: Page 10 of 18 · Federal participatIOn III right of way acquisitIOn (3111 charges), relocation (31 09 charges) actIVItIes, if any, and nght of way lllcldentals (expenses incidental to acqUisition/relocatIon of nght of way - 3114 charges), · Federal partlcipatIon m nght of way acquisition (3111 charges), relocatIOn (3109 charges) but no partlclpatIOn in mCldental expenses (3114 charges), or . No federal partlclpatIOn in nght of way acqmsltIon (311 charges) and relocatlOn activities (3109 expenses) Regardless of the optIon selected above, the State retaIlls overSight responsibilities. The Local Agency's and the State's responsibllities for each optIOn is specifically set forth in CDOT's Right of Way OperatIOn Manual. The manual is located at hup. / /vvww .dot.state, co. us/DevelopProl ects/Dcsl gnSUpport. Section 8. Utilities Ifnecessary, the Responsible Party will be responsible for obtaimng the proper clearance or approval from any utihty company which may become involved in thiS Project. Prior to this Project being advertised for bids, the Responsible Party will certify III writIllg to the State that all such clearances have been obtaIlled. Section 9. Railroads In the event the Project mvolves modification of a railroad company's faclhtles whereby the Work lS to be accomplished by railroad company forces, the Responsible Party shall make timely application to the Pubhc UtIlItles Commlssion requesting its order provldmg for the installatIOn of the proposed Improvements and not proceed with that part of the Work wlthout comphance. The Responsible Party shall also establish contact With the railroad company Illvolved for the purpose of complying WIth applicable provIsIOns of 23 CFR 646, subpart B, concernIllg federal-aid projects mvolvmg railroad faCIlities, Illcluding: ExecutIllg an agreement settmg out what work is to be accomplished and the 10catIon(s) thereof, and that the costs ofthe improvement shall be eligible for federal participatIOn. 2. ObtaIllIllg the railroad's detailed estimate ofthe cost ofthe Work. 3 EstablIshmg future mamtenance responsibilities for the proposed installatIOn. 4. Proscribmg future use or dispositIOns of the proposed improvements m the event of abandonment or ehmlllatIon of a grade crossing. 5. EstabhshIllg future repair and/or replacement responsibilities in the event of accldental destructIOn or damage to the lllstallatIOn, Section 10. Environmental Obligations The Local Agency shall perform all Work III accordance with the requirements of the current federal and state environmental regulations includIllg the National EnVironmental Policy Act of 1969 (NEP A) as applicable. Page 11 of 18 Section 11. Maintenance Obligations The Local Agency will mamtain and operate the Improvements constructed under this contract which are not located on the state highway system, at ItS own cost and expense during their useful hfe, III a manner satisfactory to the State and FHW A. The Local Agency will make proper provisions for such maintenance obligatIOns each year Such maintenance and operatIOns shall be conducted m accordance With all applicable statutes, ordmances and regulations which define the Local Agency's obligatIOns to mamtam such improvements. The State and FHWA will make pen odIC inspectIOns ofthe project to venfythat such Improvements are bemg adequately mamtaIlled. MaIlltenance for Improvements located on the state highway system will be performed by the State or by separate contract. Section 12. Federal Requirements The Local Agency and/or their contractor shall at all tImes during the execution of thiS contract stnctly adhere to, and comply With, all applicable federal and state laws, and their Implementmg regulatIOns, as they currently eXist and may hereafter be amended, The contractor shall also require compliance With these statutes and regulations in sub grant agreements permitted under thiS contract. A IIstmg of certam federal and state laws that may be applicable are described III Exhibit J Section 13. Record Keeping The Local Agency shall maintaIll a complete file of all records, documents, commurucatlOns, and other wntten matenals, which pertaIll to the costs Incurred under this contract. The Local Agency shall mamtain such records for a penod of SIX (6) years after the date oftermIllatlOn of this contract or final payment hereunder, whichever is later, or for such further period as may be necessary to resolve any matters which may be pendIng. The Local Agency shall make such matenals available for Illspection at all reasonable times and shall permit duly authorized agents and employees of the State and FHW A to mspect the project and to Inspect, review and audit the project records. Section 14. Termination Provisions ThiS contract may be termlllated as follows. A. TerminatIOn for Convenience. The State may termlllate this contract at any tIme the State detenmnes that the purposes of the distribution of moneys under the contract would no longer be served by completIOn of the project. The State shall effect such termination by givmg wntten notice oftermIllation to the Local Agency and specifying the effective date thereof, at least twenty (20) days before the effective date of such termlllation. B. TermIllatlOn for Cause. If, through any cause, the Local Agency shall fail to fulfill, ill a timelye Page 12 of 18 and proper manner, Its obligatIOns under this contract, or If the Local Agency shall violate any ofthe covenants, agreements, or stipulatIOns oftrns contract, the State shall thereupon have the nght to termmate this contract for cause by glVIllg wntten notice to the Local Agency of Its intent to terrmnate and at least ten (10) days opportumty to cure the default or show cause why terminatIOn IS otherwise not appropriate. In the event oftermmatlon, all fimshed or unfimshed documents, data, studies, surveys, drawmgs, maps, models, photographs and reports or other matenal prepared by the Local Agency under thiS contract shall, at the option ofthe State, become ItS property, and the Local Agency shall be entitled to receive Just and eqUitable compensatIOn for any services and supplies delivered and accepted. The Local Agency shall be obligated to return any payments advanced under the provisions of thiS contract. Notwlthstandlllg the above, the Local Agency shall not be relieved ofliabihty to the State for any damages sustallled by the State by virtue of any breach of the contract by the Local Agency, and the State may Withhold payment to the Local Agency for the purposes of mitIgatlllg its damages until such time as the exact amount of damages due to the State from the Local Agency IS determmed. If after such termlllatlOn It IS determIlled, for any reason, that the Local Agency was not III default or that the Local Agency's actIOn/inactIOn was excusable, such terminatIOn shall be treated as a termmatlOn for convemence, and the rights and obhgatlOns ofthe parties shall be the same as If the contract had been ternunated for convemence, as described herein. C TermIllatlOn Due to Loss of FundIllg. The parties hereto expressly recognIze that the Local Agency IS to be paid, reimbursed, or otherwise compensated With federal and/or State funds which are available to the State for the purposes of contractmg for the Project proVided for herem, and therefore, the Local Agency expressly understands and agrees that aU its rights, demands and claims to compensatIOn ansmg under thiS contract are contmgent upon availabIlity of such funds to the State. In the event that such funds or any part thereof are not available to the State, the State may Immediately termmate or amend thiS contract. Section IS. Legal Authority The Local Agency warrants that it possesses the legal authonty to enter into thiS contract and that It has taken all actIOns required by its procedures, by-laws, and/or applicable law to exercise that authonty, and to lawfully authonze ItS underSigned signatory to execute thiS contract and to bIlld the Local Agency to its terms. The person(s) executlllg this contract on behalf of the Local Agency warrants that such person(s) has full authorizatIOn to execute this contract. Section 16. Representatives and Notice The State will provide liaison with the Local Agency through the State's RegIOn Director, Region 6,2000 South Holly Street, Denver, Colorado 80222. Said ReglOn Dnectorwill also be responsible for coordinatIllg the State's actiVIties under this contract and will also Issue a "Notice to Proceed" to the Local Agency for commencement of the Work. All communications relatlllg to the day-to-day actiVIties for the work shall be exchanged between representatIves of the State's TransportatIOn Page 13 of18 RegIOn 6 and the Local Agency All communicatIOn, notices, and correspondence shall be addressed to the individuals Identified below. Either party may from time to time desIgnate III wntIllg new or substitute representatIves, If to State' Kevlll Hsu Resident EngIlleer CDOT RegIOn 6 2000 South Holly Street Denver, Colorado 80222 (303) 984-5277 If to the Local Agency Tim Paranto CIty of Wheat RIdge Director ofPubhc Works 7500 West 29th Avenue Wheat Ridge, Colorado 80215 (303) 235-2860 Section 17. Successors Except as herem otherwise prOVided, this contract shall mure to the benefit of and be bmding upon the parties hereto and their respective successors and asSignS. Section 18. Third Party Beneficiaries It IS expressly understood and agreed that the enforcement ofthe terms and conditions oftlus contract and all rights of action relatIllg to such enforcement, shall be stnctly reserved to the State and the Local Agency NothIllg contaIlled m thiS contract shall give or allow any claim or nght of action whatsoever by any other third person. It is the express intentIOn of the State and the Local Agency that any such person or entity, other than the State or the Local Agency receivIllg services or benefits under this contract shall be deemed an inCIdental benefiCiary only. Section 19. Governmental Immunity Notwithstandmg any other proviSIOn of thIs contract to the contrary, no term or condItIOn of this contract shall be construed or mterpreted as a waiver, express or implied, of any of the ImmumtIes, nghts, benefits, protectIOn, or other provisions of the Colorado Govemmentallmmunity Act, ~ 24-10-101, et seq., c.R.S., as now or hereafter amended. The parties understand and agree that habilrty for claims for IllJunes to persons or property ansIllg out of negligence of the State of Colorado, ItS departments, IllstltutlOns, agenCIes, boards, offiCials and employees IS controlled and hmlted by the provIsions of 9 24-10-101, et seq., C.R.S., as now or hereafter amended and the nsk management statutes, ~S 24-30-1501, et seq., C.R.S., as now or hereafter amended. Section 20. Severability To the extent that thiS contract may be executed and performance of the obligations of the parties may be accomphshed withm the mtent of the contract, the terms of this contract are severable, and should any term or provision hereofbe declared invalid or become inoperative for any reason, such Illvalidlty or failure shall not affect the vahdlty of any other term or provision hereof. Section 21. Waiver Page 14 of 18 The Waiver of any breach of a term, provisIOn, or requirement of this contract shall not be construed or deemed as a waiver of any subsequent breach of such term, provision, or reqUirement, or of any other tenn, provIsIon or reqUirement. Section 22. Entire Understanding This contract is intended as the complete IlltegratlOn of all understandmgs between the parties. No prior or contemporaneous additIOn, deletIOn, or other amendment hereto shall have any force or effect whatsoever, unless embodied herem by wnting. No subsequent novatIOn, renewal, addition, deletIOn, or other amendment hereto shall have any force or effect unless embodied in a wntmg executed and approved pursuant to the State Fiscal Rules. Section 23. Survival of Contract Terms NotwlthstandIllg anythmg hereIll to the contrary, the parties understand and agree that all terms and conditions of thiS contract and the exhibits and attachments hereto which may require contmued performance, compliance or effect beyond the termIllatlon date of the contract shall survIVe such termmatlOTI date and shall be enforceable by the State as provided herein III the event of such faIlure to perform or comply by the Local Agency Section 24. Modification and Amendment ThIS contract IS subject to such modIfications as may be required by changes III federal or State law, or their implementing regulatIOns. Any such reqUired modification shall automatically be incorporated lllto and be part ofthls contract on the effective date of such change as If fully set forth hereIll. Except as proVIded above, no modifIcatIon ofthls contract shall be effective unless agreed to III wnting by both parties III an amendment to thiS contract that IS properly executed and approved III accordance With applicable law. Section 25. Funding Letters The State may allocate more or less funds available on this contract using a Fundmg Letter substantially eqUivalent to Exhibit F and bearing the approval ofthe State Controller or his deSignee. The funding letter shall not be deemed vahd until It shall have been approved by the State Controller or his designee. Section 26. Disadvantaged Business Enterprise (DBE) The Local Agency will comply with all requHements of Exhibit E and the Local Agency Contract Admimstration Checkhst regardmg DBE requirements for the Work, except that If the Local Agency desires to use ItS own DBE program to implement and admimster the DBE proviSIOns of 49 CFR Part 26 under this contract, It must submit a copy of ItS program's reqUirements to the State for review and approval before the execution of this contract. If the Local Agency uses its program for this contract, the Local Agency shall be solely responsible to defend that DBE program Page 15 ofl8 and Its use of that program agamst all legal and other challenges or complamts, at Its sole cost and expense. Such responsibility Illcludes, without limitation, determinations concernmg DBE ehgibihty requirements and certIfication, adequate legal and factual bases for DBE goals and good faith efforts. State approval (If provided) ofthe Local Agency's DBE program does not Waive or modify the sole responsiblhty of the Local Agency for Its use as described above. Section 27. Disputes Except as otherwise provided m thiS contract, any dispute concerning a question of fact ansIllg under thIS contract which IS not disposed of by agreement will be decided by the Cluef EngIlleer ofthe Department of Transportation, The decision of the Chief Engineer will be final and conclusive unless, wlthm 30 calendar days after the date of receipt of a copy of such wntten decIsIon, the Local Agency mails or otherwIse furnishes to the State a wntten appeal addressed to the Executive Director ofthe Department of Transportation. In connectIOn with any appeal proceedIllg under thiS clause, the Local Agency shall be afforded an opportumty to be heard and to offer eVidence III support of Its appeal. PendIllg final deCISIOn ofa dispute hereunder, the Local Agency shall proceed diligently With the performance of the contract in accordance with the CluefEngineer's deCISIOn. The decision of the Executive Difector or his duly authorized representative for the determmatlon of such appeals will be final and conclUSIve and serve as final agency actIOn. Tills dIspute clause does not preclude consideration of questions of law in connection With decisions prOVided for hereIll. NothIllg in thiS contract, however, shall be construed as making final the deCision of any administrative offiCial, representative, or board on a questIOn of law. Page 16 of18 Section 28. . <.,',' .~.,~ :-;'-:';ii';":':'c".. ;~:"';':-;":Y'!,"';r~C \"i.~..i.')~,~-\r~:~,:'l~" ""~>F!,;-;SeECIAl!FPR:C)VISIO " ',' ,~~~:~~f~~.;f~~>;~~~~).x~"~.; \~' \:'~~1~~~~~g~~#_~: (For Use Onlv with Inter-Governmental Conlractsl CONTROLLER'S APPROVAL CRS 24.30-202 (1) This contract shall not be deemed valid until it has been approved by the Controller of the State of Colorado or such assistant as he may designate. 2. FUND AVAILABILITY CRS 24-30-202 (5.5) Financial obligations of the State of Colorado payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. 3. INDEMNIFICATION To the extent authorized by law, the contractor shall indemnify, save, and hold harmless the State against any and all claims, damages, liability and court awards including costs. expenses, and attorney fees incurred as a result of any act or omission by the Contractor, or its employees, agents, subcontractors, or assignees pursuant to the terms of this contract No term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protection, or other provisions for the parties, of the Colorado Governmental Immunity Act, CRS 24-10-101 et seq, or the Federal Tort Claims Act, 28 U,S,C. 2671 et seq, as applicable, as now or hereafter amended. 4 INDEPENDENT CONTRACTOR 4 CCR 801-2 THE CONTRACTOR SHALL PERFORM ITS DUTIES HEREUNDER AS AN INDEPENDENT CONTRACTOR AND NOT AS AN EMPLOYEE. NEITHER THE CONTRACTOR NOR ANY AGENT OR EMPLOYEE OF THE CONTRACTOR SHALL BE OR SHALL BE DEEMED TO BE AN AGENT OR EMPLOYEE OF THE STATE. CONTRACTOR SHALL PAY WHEN DUE ALL REQUIRED EMPLOYMENT TAXES AND INCOME TAX AND LOCAL HEAD TAX ON ANY MONIES PAID BY THE STATE PURSUANT TO THIS CONTRACT CONTRACTOR ACKNOWLEDGES THAT THE CONTRACTOR AND ITS EMPLOYEES ARE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS UNLESS THE CONTRACTOR OR THIRD PARTY PROVIDES SUCH COVERAGE AND THAT THE STATE DOES NOT PAY FOR OR OTHERWISE PROVIDE SUCH COVERAGE. CONTRACTOR SHALL HAVE NO AUTHORIZATION, EXPRESS OR IMPLIED, TO BIND THE STATE TO ANY AGREEMENTS, LIABILITY, OR UNDERSTANDING EXCEPT AS EXPRESSLY SET FORTH HEREIN. CONTRACTOR SHALL PROVIDE AND KEEP IN FORCE WORKERS' COMPENSATION (AND PROVIDE PROOF OF SUCH INSURANCE WHEN REQUESTED BYTHE STATE) AND UNEMPLOYMENT COMPENSATION INSURANCE IN THE AMOUNTS REQUIRED BY LAW, AND SHALL BE SOLELY RESPONSIBLE FOR THE ACTS OF THE CONTRACTOR, ITS EMPLOYEES AND AGENTS. 5 NON-DISCRIMINATION. The contractor agrees to comply with the letter and the spirit of all applicable state and federal laws respecting discrimination and unfair employment practices, 6. CHOICE OF LAW The laws of the State of Colorado and rules and regulations issued pursuant thereto shall be applied in the interpretation, execution, and enforcement of this contract. Any provision of this contract, whether or not incorporated herein by reference, which provides for artlitration by any extra-judicial body or person or which is otherwise in conflict with said laws, rules, and regulations shall be considered null and void. Nothing contained in any provision incorporated herein by reference which purports to negate this or any other special provision in whole or in part shall be valid or enforceable or available in any action at law whether by way of complaint, defense, or otherwise, Any provision rendered null and void by the operation of this provision will not invalidate the remainder of this contract to the extent that the contract is capable of execution. At all times during the performance of this contract, the Contractor shall strictly adhere to all applicable federal and state laws, rules, and regulations that have been or may hereafter be established, 7 SOFTWARE PIRACY PROHIBITION Governor's Executive Order D 002 00 No State or other public funds payable under this Contract shall be used for the acquisition, operation, or maintenance of computer software in violation of United States copyright laws or applicable licensing restrictions. The Contractor hereby certifies that. for the term of this Contracl and any extensions, the Contractor has in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that the Contractor is in violation of this paragraph, the State may exercise any remedy available at law or equity or under this Contract, including, without limitation, immediate termination of the Contract and any remedy consistent with Uniled States copyright laws or applicable licensing restrictions. 8. EMPLOYEE FINANCIAL INTEREST CRS 24-18-201 & CRS 24-50-507 The signatories aver that to their knowledge, no employee of the State of Colorado has any personal or beneficial interest whatsoever in the service or property described herein. Effective Dale: April 1, 2004 Page 17 of18 THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT CONTRACTOR: STATE OF COLORADO' BILL OWENS, GOVERNOR CITY OF WHEAT RIDGE Legal Name of Contracting Entity By c,.,~ SV\o..~ P ExecutivltDirector DepartmQ;t of Transportation 840595832 LEGAL REVIEW KEll 8^w'.ct.r1 ATTORNEY GENERAL ~T<' "n vV I.cithef'.,' GF~fiTi~~ I-t E: rv C If'f:v C rJ'4 Print Name & Title of Authorized Officer -----' By J<~,-- ( r&.c-L-. Co ALL CONTRACTS MUST BE APPROVED rporale seal here, if available) CORPORATIONS. (A corporate attestation is required.) Attest (Seal) ( CRS 24-30-202 requires that the State Controller approve all state contracts, This contract is not valid until the State Controller, or such assistant as he may delegate, has signed it. The contractor is not authorized to begin performance until the contract is signed and dated below If performance begins prior to the date below, the State of Colorado may not be obligated to pay for the goods and/or services provided. Date STATE CONTROLLER: LESLIE M SHENEFEL T By Effective Date: July 1, 2004 Page 18 of 18 Exhibit A De-leer Equipment 2 combination liquid/solid applicator units installed in tandem truck beds @ $40,000 1 deicer pump $80,000 $15,000 $40,000 $ 5,000 $ 5,000 $145,000 1 V-box spreader unit installed in a single axle dump truck 210,000 gallon tanks Misc. supplies and installation TOTAL Exhibit B LOCAL AGENCY ORDINANCE or RESOLUTION CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 26 Series of 2005 TITLE: A RESOLUTION APPROVING A CONTRACT WITH THE COLORADO DEPARTMENT OF TRANSPORTATION FOR THE PURCHASE OF SNOW AND ICE CONTROL EQUIPMENT, ALONG WITH AMENDING THE FISCAL YEAR 2005 GENERAL FUND BUDGET TO REFLECT THE APPROVAL OF A SUPPLEMENTAL BUDGET APPROPRIATION IN THE AMOUNT OF $105,000 WHEREAS, the City Council wishes to provide for the early purchase of de-icing equipment funded by a federal grant; and WHEREAS, the City has negotiated a contract with the Colorado Department of Transportation (CDOT), for the purpose of obtaining state approval and oversight for the purchase of the de-icing equipment; and WHEREAS, the cost of the purchase of the de-icing equipment is estimated not to exceed $145,000; and WHEREAS, CDOT will reimburse the City 80% of the costs of the de-icing equipment in year 2006 NOW, THEREFORE, BE IT RESOLVED by the Wheat Ridge City Council, that: Section 1. Contract Approved The contract between the City and CDOT for Project AQC M361-003 purchase of de-icing equipment, is hereby approved and the Mayor and City Clerk are authorized and directed to execute the same Section 2.Budqet Amended. A supplemental budget appropriation in the amount of $105,000 from General Fund unreserved fund balance to account #01-303-800-809. Section 3.Effective Date M"y 23, 7005 This Resolution shall be effective immediately upon adoption ,.J ' DONE AND RESOLVED this 21, day of '---rf( (,; ~1 ........----------- ,2005 ATTEST ~~ RESO 001 2 EXHIBIT C FUNDING PROVISIONS A. The Local Agency has estimated the total cost the Work to be $145,000.00 whIch IS to be funded in the future as follows: 1 BUDGETED FUNDS a. Federal Funds $116.00000 (80% of Participating Costs) b Local Agency Matching Funds $29,00000 (20% of Participating Costs) Local Agency Matching for COOT - c. Incurred Non-Participating Costs $000 (Including Non-Participating Indirects) TOTAL BUDGETED FUNDS $145,000.00 2 ESTIMATED COOT -INCURRED COSTS a, Federal Share $000 (80% of Participating Costs) b Local Share Local Agency Share of Participating Costs $000 Non-Participating Costs (Including Non- Participating Indirects) $0,00 Estimated to be Billed to Local Agency $000 TOTAL ESTIMATED COOT-INCURRED COSTS $000 3 ESTIMATED PAYMENT TO LOCAL AGENCY a. Federal Funds Budgeted (1 a) $116,00000 b Less Estimated Federal Share of COOT-Incurred Costs (2a) $000 TOTAL ESTIMATED PAYMENT TO LOCAL AGENCY $116,00000 FOR COOT ENCUMBRANCE PURPOSES Total Encumbrance Amount ($116,000.00 divided by 80%) $145,00000 Less ROW Acquisition 3111 and/or ROW Relocation 3109 $000 Net to be encumbered as follows' I $145,000.00 Miscellaneous] I I $145,00000 Exhibit C - Page 1 of2 B. The matchIllg ratio for the federal partlclpatIllg funds for this project IS 80% federal-aId funds (CFDA#20 2050) to 20% Local Agency funds, it bemg understood that such ratio applIes only to the $145,000.00 that IS elIgible for federal particlpatlOn, It bemg further understood that all non-partlclpatmg costs are borne by the Local Agency at 100%. If the total partlcipatmg cost of performance of the Work exceeds $145,000.00, and addltlOnal federal funds are made available for the project, the Local Agency shall pay 80% of all such costs ehgible for federal partlclpatlOn and 100% of all non-partlclpatIllg costs; If additional federal funds are not made aVailable, the local agency shall pay all such excess costs. If the total particlpatIllg cost of performance of the Work IS less than $145,00000, then the amounts of Local Agency and federal-aId funds will be decreased m accordance WIth the fundIllg ratlO described hereIll. The performance of the Work shall be at no cost to the State. C. The maximum amount payable to the Local Agency under this contract shall be $116,000 00 (For CDOT accountIllg purposes, the federal funds of$116,000 00 and local matchmg funds of $29,00000 Will be encumbered for a total encumbrance of $145,00000), unless such amount is mcreased by an appropnate wntten modIficatlOn to thiS contract executed before any Illcreased cost IS mcurred. It IS understood and agreed by the parties hereto that the total cost ofthe Work stated hereinbefore IS the best estimate available, based on the design data as approved at the time of executlOn ofthis contract, and that such cost IS subject to reVISlOns (Ill accord With the procedure m the prevlOUS sentence) agreeable to the partIeS pnor to bid and award, D The parties hereto agree that thiS contract IS con tIll gent upon all funds deSignated for the project hereIll beIllg made available from federal and/or state and/or Local Agency sources, as applicable. Should these sources, either federal or Local Agency, fail to provIde necessary funds as agreed upon herein, the contract may be terminated by either party, provided that any party terminatmg its mterest and oblIgatlOns herem shall not be relieved of any obhgatlOns which eXisted pnor to the effective date of such termmatlOn or which may occur as a result of such termIllatIon. Exhibit C - Page 2 of 2 Exhibit D A TT ACHMENT LO Certification for Federal-Aid Contracts The contractor certifies, by SlgnIllg this contract, to the best of its knowledge and belref, that: 1 No Federal appropnated funds have been paId or will be paId, by or on behalf or the underSigned, to any person for IllfluencIllg or attemptIllg to Illfluence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress m connection with the awarding of any Federal loan, the entenng mto of any cooperatIve agreement, and the extenSIOn, contIlluatlOn, renewal, amendment, or modificatIOn of any Federal contract, grant, loan, or cooperatIve agreement. 2. If any funds other than Federal appropnated funds have been paId or will be paid to any person for influencIllg or attempting to Illfluence an officer or of Congress, or an employee of a Member of Congress m connectIon with thiS Federal contract, grant, loan, or cooperative agreement, the underSigned shall complete and submIt Standard Form-LLL, "Disclosure Form to Report Lobbymg," m accordance With ItS mstructlOns. This certificatIOn IS a material representatIOn of fact upon which relrance was placed when this transactIOn was made or entered mto SubmiSSion ofthis certificatIOn IS a prereqUisite for makmg or entering mto thiS transactIOn Imposed by SectIon 1352, Title 31, D.S Code. Any person who fails to file the reqUIred certificatIOn shall be subject to a clVll penalty of not less than $10,000 and not more than $100,000 for each such failure. The prospectIve participant also agree by submitting hiS or her bId or proposal that he or she shall reqUIre that the language of thiS certificatIOn be Illcluded III all lower tier subcontracts, winch exceed $100,000 and that all such subreclplents shall certify and disclose accordmgly. Required by 23 CFR 635 112 Exhibit D - Page 1 of 1 Exhibit E DISADV ANT AGED BUSINESS ENTERPRISE (DBE) SECTION 1 PolIcy. It is the polIcy of the Colorado Department of Transportation (CDOT) that disadvantaged business enterpnses shall have the maximum opportUnIty to participate III the performance of contracts financed III whole or in part With Federal funds under thiS agreement, pursuant to 49 CFR Part 23 Consequently, the 49 CFR Part IE DBE reqUirements the Colorado Department of TransportatIOn DBE Program (or a Local Agency DBE Program approved III advance by the State) apply to thiS agreement. SECTION 2 DBE ObligatIOn. The recipient or its contractor agrees to ensure that disadvantaged business enterpnses as determined by the Office of CertificatIOn at the Colorado Department of Regulatory Agencies have the maximum opportumty to participate III the performance of contracts and subcontracts financed III whole or III part with Federal funds provided under thiS agreement. In this regard, all participants or contractors shall take all necessary and reasonable steps III accordance With the CDOT DBE program (or a Local Agency DBE Program approved III advance by the State) to ensure that disadvantaged busIlless enterpnses have the maximum opportUnIty to compete for and perform contracts. Recipients and their contractors shall not dlscnmlllate on the basis of race, color, national onglll, or sex m the award and performance of CDOT aSSisted contracts. SECTION 3 DBE Program. The contractor (subrecipient) shall be responsible for obtaIllIllg the Disadvantaged BusIlless Enterpnse Program of the Colorado Department of Transportation, 1988, as amended, and shall comply With the applicable provisions of the program. (If applicable). A copy of the DBE Program is available from and will be mailed to the contractor upon request: BusIlless Programs Office Colorado Department of TransportatIOn 4201 East Arkansas Avenue, Room 287 Denver, Colorado 80222-3400 Phone (303) 757-9234 revised 1/22/98 Required by 49 CFR Part 23 41 Exhibit E ~ Page 1 of] --- Exhibit F COLORADO DEPARTMENT OF TRANSPORTATION CONTRACT AUTHORITY' FUNDING INCREASE/DECREASE AND APPROVAL LETTER Region State Controller Policy letter on June 12, 1996 Comolete section 1 and submit to COOT Controller's office. COOT Controller letter on Mav 23, 1996 (1 )This form to be used for the following contracts/situations only (check the appropriate situation)' _indefinite quantity, order more/add more _utility/railroad, underestimated total cost - COOT construction, sum of CMO's _LA construction, underestimated cost COOT construction, underestimated tolal cost COOT consultant, underestimated cost SECTION 1 (ReQion use) Date (2) Proiect code (3) To COOT Controller (FAX #(303) 757-9573 or e-mail CONTROLLER) Project # (4) From Office. (5) Phone # (5) FAX # (5) Reqion # (5) COOT has executed a contract with. (6) Address (6) FEIN # (6) Contract routing # (7) COFRS encumbrance # (indicate PO, SC or PC #) (8) Fund Orgn Appro prg rm. Func. Object/Sub-obj N/P GBL Reporting Catg Proj/Sub/Phase (9) (9) (9) (9) (9) (9) (9) (9) (9) Original contract amount Has a Budget Request been processed to cover the contract amount increase? $ (10) yes no (14) Previous Funding Letter(s) total Preparer's name (15) $ (11) (Funding letter #1 thru #---1 PHONE NO' This Funding Letter total Contract Administrator's/Business Manager's Approval $ (12) (16) (# ----.J PHONE NO' Adjusted contract amount COOT Designee Approval $ (13) (17) Local Agency approval (18) SECTION 2 (Controller's Office use) (19) Total allotment amount Commission budget $ (19) $ (19) If construction. CE charges Indirect chgs Adjusted contract amount plus total CE & indirect _CE pool elig (19) $ (19) $ (19) charges calculation S (19) I have reviewed the financial status of the project, organization, grant and have determined that sufficient funds are available to cover this increase, effective as of (19) State Controller or Delegee Date (20) (20) Exhibit F - Page 1 of 1 ---- Exhibit G LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST CDOT Form 1243 INTENTIONALL Y OMITTED Exhibit G - Page 1 of 1 ---- Exhibit H A TT ACHMENT #1 THE LOCAL AGENCY SHALL USE THESE PROCEDURES TO IMPLEMENT FEDERAL-AID PROJECT AGREEMENTS WITH PROFESSIONAL CONSULTANT SERVICES Title 23 Code of Federal Regulations (CFR) 172 applies to a federally funded local agency project agreement administered by CDOT thai involves professional consultant services. 23 CFR 172 and 23 CFR 172( d) state that, "When federal-aid highway funds participale in the contract a local shall use the same procedures as used by the State to administer contracts " Therefore, local agencies must comply with this CFR requirement and the following state procedures when obtaining professional consultant services under a federally funded consultant contract administered by CDOT CDOT has fonnulaled its procedures in Procedural Directive (P.D ) 400 I and the related operations guidebook titled "Obtaining Professional Consultant Services" This directive and guidebook incorporale requirements from both Federal and State regulations, i.e., 23 CFR 172 and Colorado Revised Statute (CR.S ) 24-30-1401 et seq. Copies of !he directive and the guidebook may be obtained upon request from CDOT's Agreements and Consultant Management Unit. [Local agencies should have !heir own "'TIlten procedures on file for each method of procurement that addresses the Ilems m 23 CFR 172.5(b)(l-6)). Because the procedures and laws described in the Procedural Directive and the guidebook are qUite lengthy, the subsequent steps serve as a short-hand guide to CDOT procedures Ihat a local agency must follow in obtaining professional consultanl services, This guidance follows the format of 23 CFR 172. The steps are: The contracting local agency shall document Ihe need for obtaining professional services. 2. Prior to solicitation for consultant services, !he contracting local agency shall develop a detailed scope of work and a list of evaluation factors and Iheir relative importance. The evaluation faclors are those identified in CR.S, 24-30-1403 Also, a detailed cost estimate should be prepared for use during negotJatlOns. 3 The contracting agency must advertise for contracts in confonnity wi!h the requirements ofCR.S. 24-30-1405 The public notice period, when such notice is required, is a minimum of 15 days prior to !he selection of the three most qualified fums and the advertising should be done in one or more daily newspapers of general circulation. 4 The request for consultant services should include !he scope of work, !he evaluation factors and !heir relative importance, the me!hod of payment, and the goal often percent (10%) Disadvantaged Business Enterprise (DBE) participation as a minimum for the project. 5 The analysis and selectIOn of the consultants should be done in accordance with CR.S, 24-30-1403 This section of the regulation identifies the criteria 10 be used in !he evaluation ofCDOT pre-qualified prime consultants and their team It also shows which criteria are used to short-lisl and 10 make a final selection, The short-lisl is based on the followmg evaluation factors: a. Qualifications, b Approach to the project, c. Ability to furnish professional services. d. AntiCIpated design concepts, and e. Alternative me!hods of approach for furnishing !he professional services. Evalualion factors for final selection are !he consultant's: a. Abilities of their personnel, b Past performance, c. Willingness to meet the time and budget requirement, d. Location, Exhibit H - Page 1 of 2 Exhibit H e Current and projecled work load, f. Volume of previously awarded conlracts, and g. Involvement of minority consultants, Under 24-30-1401. cost shall not be considered as a factor in the evaluation of professional consultant services. 6 Once a consultant is selected, the local agency enters into negotiations with the consultant to obtain a fair and reasonable price for the anticipated work. Pre-negotiation audits are prepared for contracts expected to be grealer than $50,000 Federal reimbursement for costs are limited to those costs allowable under the cost principles of 48 CFR 31 Fixed fees (profit) are determined with consideration given to size, complexity, duralion, and degree of risk involved in the work. Profit is in the range of six (6) to fifteen (15) percent of the total direct and indirect costs. 7 A qualified local agency employee shall be responsible and in charge of the projecI to ensure that the work being pursued is complete, accurate, and consistent wilh the terms, conditions, and specifications of the contract. At the end of project, the local agency prepares a perfonnance evaluation (a CDOT form is available) on the consultant. 8 Each of the steps listed above is to be documented in accordance with the provisions of 49 CFR 18.42, which provide for records to be kepi at least three (3) years from the date that the local agency submits its final expenditure report. Records of projects under litigation shall be kept at least three (3) years after the case has been settled. The C.R.S. 24-30-1401 through 24-30-1408,23 CFR Part 172, and P,D 400 I, provide additional details for complying with the eighl (8) steps just discussed, Exhibit H - Page 2 on FHWA Form 1273 Exhibit I FHWA-1273 Electronic version - March 10, 1994 REQUIRED CONTRACT PROVISIONS FEDERAL-AID CONSTRUCTION CONTRACTS I. General 1 II. Nondiscrimination 1 111. Nonsegregated Facilities 3 IV Payment of Predetermined Minimum Wage 3 V Statements and Payrolls 6 VI. Record of Materials, Supplies, and Labor 6 VII. Subletting or Assigning the Contract..., 7 VIII. Safety' Accident Prevention 7 IX. False Statements Conceming Highway Projects. 7 X, Implementation of Clean Air Act and Federal Water Pollution Control Act....""" 8 XL Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion 8 XII. Certification Regarding Use of Contract Funds for Lobbying 9 ATTACHMENTS A. Employment Preference for Appalachian Contracts (included in Appalachian contracts onty) I. GENERAL 1 These contract provisions shall apply to all work performed on the contract by the contractor's own organization and with the assistance of workers under the contractor's immediate superin- tendence and to all work performed on the contract by piecework, station work, or by subcontract 2. Except as otherwise provided for in each section, the contractor shall insert in each subcontract all of the stipulations contained in these Required Contract Provisions, and further require their inclusion in any lower tier subcontract or purchase order that may in turn be made. The Required Contract Provi- sions shall not be incorporated by reference in any case. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with these Required Contract Provisions. 3. A breach of any of the stipulations contained in these Required Contract Provisions shall be sufficient grounds for termination of the contract 4 A breach of the following clauses of the Required Contract Provisions may also be grounds for debarment as provided in 29 CFR5.12: Section I, paragraph 2; Section IV, paragraphs 1,2,3,4, and 7, Section V, paragraphs 1 and 2a through 2g. 5. Disputes arising out of the labor standards provisions of Section IV (except paragraph 5) and Section V of these Required Contract Provisions shall not be subject to the general disputes clause of this contract Such disputes shall be resolved in accor- dance with the procedures of the U.S. Department of Labor (DOL) as set forth in 29 CFR 5, 6, and 7 Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the DOL, or the contractor's employees or their representatives. 6. Selection of labor: During the performance of this con- tract, the contractor shall not: a, discriminate against labor from any other State, posses- sion, or terrilory of the United States (except for employment preference for Appalachian contracts, when applicable, as specified in Attachment A), or b. employ convict labor for any purpose within the limits of the project unless it is labor performed by convicts who are on parole, supervised release, or probation. II. NONDISCRIMINATION (Applicable to all Federal-aid construction contracts and to all related subcontracts of $10,000 or more.) 1 Equal Employment Opportunity. Equal employment opportunity (EEO) requirements not to discriminate and to take affirmative action to assure equal opportunity as set forth under laws, executive orders, rules, regulations (28 CFR 35, 29 CFR 1630 and 41 CFR 60) and orders of the Secretary of Labor as modified by the provisions prescribed herein, and imposed pursuant to 23 U.S,C 140 shall constitute the EEO and specific affirmative action standards for the contractor's project activities under this contract The Equal Opportunity Construction Contract Specifications set forth under 41 CFR 60-4,3 and the provisions of the American Disabilities Act of 1990 (42 U,S.C. 12101 g! ~.) set forth under 28 CFR 35 and 29 CFR 1630 are incorporated by reference in this contract In the execution of this contract, the contractor agrees to comply with the following minimum specific requirement activities of EEO' a. The contractor will work with the State highway agency (SHA) and the Federal Government in carrying out EEO obliga- tions and in their review of hislher activities under the contract b. The contractor will accept as his operating policy the following statement: "It is the policy of this Company to assure that applicants are employed, and that employees are trealed during employ- ment, without regard to their race, religion, sex, color, national origin, age or disability. Such action shall include: employment, upgrading, demotion, or transfer; recruitmenl or recruitment advertising; layoff or termination; rates of payor other forms of compensation; and selection for training, including apprenticeship, preapprenticeship, andlor on-the-job training." 2. EEO Officer' The contractor will designate and make known to the SHA contracting officers an EEO Officer who will have the responsibility for and must be capable of effectively administering and promoting an active contractor program of EEO and who must be assigned adequate authority and responsibility to do so. 3. Dissemination of Policy: All members of the contractor's staff who are authorized to hire, supervise, promote, and discharge employees, or who recommend such action, or who are substantially involved in such action, will be made fully cognizant Exhibit I - Page 1 of 9 of, and will implement, the contracto~s EEO policy and contractual responsibilities to provide EEO in each grade and classification of employment To ensure that the above agreement will be met, the following actions will be taken as a minimum: a. Periodic meetings of supervisory and personnel office employees will be conducted before the start of work and then not less often than once every six months, at which time the contract- or's EEO policy and its implementation will be reviewed and explained, The meetings will be conducted by the EEO Officer b. All new supervisory or personnel office employees will be given a thorough indoctrination by the EEO Officer, covering all major aspects of the contractor's EEO obligations within thirty dayS following their reporting for duty with the contractor c. All personnel who are engaged in direct recruitment for the project will be instructed by the EEO Officer in the contractor's procedures for locating and hiring minority group employees. d. Notices and posters setting forth the contractor's EEO policy will be placed in areas readily accessible to employees, applicants for employment and potential employees. e. The contractor's EEO policy and the procedures to implement such policy will be brought to the attention of employ- ees by means of meetings, employee handbooks, or other appropriate means, 4 Recruitment: When advertising for employees, the contrac- tor will include in all advertisements for employees the notation: "An Equal Opportunity Employer" All such advertisements will be placed in publications having a large circulation among minority groups in the area from which the project work force would normally be derived. a. The contractor will, unless precluded by a valid bargain- ing agreement, conduct syStematic and direct recruitment through public and private employee referral sources likely to yield qualified minority group applicants. To meet this requirement, the contractor will identify sources of potential minolity group employees, and establish with such identified sources procedures whereby minority group applicants may be referred to the contractor for employment consideration. b, In the event the contractor has a valid bargaining agree- ment providing for exclusive hiring hall referrals, he is expected to observe the provisions of that agreement to the extent that the system permits the contracto~s compliance with EEO contract provisions. (The DOL has held that where implementation of such agreements have the effect of discriminating against minolities or women, or obligates the contractor to do the same, such implementation violates Executive Order 11246, as amended.) c. The contractor w',1I encourage his present employees to refer minority group applicants for employment Infonnation and procedures with regard 10 referring minolity group applicants will be discussed with employees. 5. Personnel Actions: Wages, working conditions, and employee benefits shall be established and administered, and personnel actions of every type, including hiring, upgrading, promotion, transfer, demotion, layoff. and tennination, shall be taken without regard to race, color, religion, sex, national origin, age or disability The following procedures shall be followed: a, The contractor will conduct periodic inspections of project siles to insure that working conditions and employee facilities do not indicale discriminatory treatment of project site personnel. b, The contractor will periodically evaluate the spread of wages paid within each classification to detennine any evidence of Exhibit I discriminatory wage practices. c. The contractor will periodically review selected personnel actions in depth to determine whether there is evidence of discrimination. Where evidence is found, the contractor will promptly take corrective action, If the review indicates that the discrimination may extend beyond the actions reviewed, such corrective action shall include a\l affected persons. d, The contractor will promptly investigate all complaints of alleged discrimination made to the contractor in connection with his obligations under this contract, will attempt to resolve such complaints, and will take appropriate corrective action within a, reasonable time, If the investigation indicates that the discrimination may affect persons other than the complainant, such corrective action shall include such other persons. Upon completion of each investigation, the contractor will inform every complainant of all of his avenues of appeal. 6. Training and Promotion: a. The contractor will assist in locating, qualifying, and increasing the skills of minority group and women employees, and applicants for employment. b. Consistent with the contractor's work force requirements and as permissible under Federal and State regulations, the contractor shall make full use of training programs, Le" apprenticeship, and on-the-job training programs for the geographical area of contract performance. Where feasible. 25 percent of apprentices or trainees in each occupation shall be in their first year of apprenticeship or training, In the event a special pfOv\sion for tra\ning is provided under this contract, this subpara- graph will be superseded as indicated in the special provision, c, The contractor will advise employees and applicants for employment of available training programs and entrance requirements for each. d, The contractor will periodically review the training and promotion potential of minority group and women employees and will encourage eligible employees to apply for such training and promotion. 7 Unions: If the contractor relies in whole or in part upon unions as a source of employees, the contractor will use hislher best efforts to obtain the cooperation of such unions to increase opportunities for minority groups and women within the unions, and to effect referrals by such unions of minority and female employees. Actions by the contractor either directly or through a contractor's association acting as agent will include the procedures set forth below: a. The contractor will use best efforts to develop. in cooperation with the unions, joint training programs aimed toward qualifying more minority group members and women for membership in the unions and increasing the skills of minority group employees and women so that they may qualify for higher paying employment b. The contractor will use best efforts to incorporate an EEO dause into each union agreement to the end that such union will be contractually bound to refer applicants without regard to their race, color, religion, sex, national origin, age or disability. c. The contractor is to obtain infonnation as to the referral practices and policies of the labor union except that to the extent such information is within the exclusive possession of the labor union and such labor union refuses to fumish such information to the contractor, the contractor shall so certify to the SHA and shall set forth what efforts have been made to obtain such infonnation. d. In the event the union is unable to provide the contractor Exhibit I - Page 2 of 9 REQUIRED BY 23 CFR 633.102 with a reasonable flow of minority and women referrals within the time limit set forth in the collective bargaining agreement, the contractor will, through independent recruitment efforts, fill the employment vacancies without regard to race, color, religion, sex, naUonal origin, age or disability; making full efforts to obtain qualified and/or qualifiable minority group persons and women. (The DOL has held that it shall be no excuse that the union with which the contractor has a collective bargaining agreement providing for exclusive referral failed to refer minority employees,) In the event the union referral practice prevents the contractor from meeting the obligations pursuant to Executive Order 11246, as amended, and these special provisions, such contractor shall immediately notify the SHA, 8. Selection of Subcontractors, Procurement of Materials and Leasing of Equipment; The contractor shall not discriminate on the grounds of race, color, religion, sex, national origin, age or disability in the selection and retention of subcontractors, including procurement of materials and leases of equipment a. The contractor shall notify all potenUal subcontractors and suppliers of hislher EEO obligations under this contract b. Disadvantaged business enterprises (DBE), as defined in 49 CFR 23, shall have equal opportunity to compete for and perform subcontracts which the contractor enters into pursuant to this contract The contractor will use his best efforts to solicit bids from and to utilize DBE subcontractors or subcontractors with meaningful minority group and female representaUon among their employees. Contractors shall obtain lists of DBE construction firms from SHA personnel. c. The contractor will use his best efforts to ensure subcon- tractor compliance with their EEO obligations. 9 Records and Reports: The contractor shall keep such records as necessary to document compliance with the EEO requirements, Such records shall be retained for a periOd of three years following compleUon of the contract work and shall be available at reasonable times and places for inspection byautho- rized representatives of the SHA and the FHW A, a. The records kept by the contractor shall document the following: (1) The number of minority and non-minority group members and women employed in each work classification on the project: (2) The progress and efforts being made in cooperation with unions, when applicable, to increase employment opportuni- ties for minorities and women; (3) The progress and efforts being made in locating, hiring, training, qualifying, and upgrading minority and female employees; and (4) The progress and efforts being made in securing the services of DBE subcontractors or subcontractors with meaningful minority and female representation among their employees. b. The contractors will submit an annual report to the SHA each July for the duraUon of the project, indicaUng the number of minority, women, and non-minority group employees currently engaged in each work classification required by the contract work. This information is to be reported on Form FHWA-1391 If on-the job training is being required by special provision, the contractor will be required to collect and report training data. III. NONSEGREGATED FACILITIES (Applicable to all Federal-aid construction contracts and to all Exhibit I related subcontracts of $10,000 or more,) a, By submission of this bid, the execuUon of this contract or subcontract, or the consummation of this material supply agree- ment or purchase order, as appropriate, the bidder, Federal-aid construction contractor, subcontractor, material supplier, or vendor, as appropriate, certifies that the firm does not maintain or provide for its employees any segregated facilities at any of its establishments, and that the firm does not permit its employees to perform their services at any location, under its control, where segregated facilities are maintained. The firm agrees that a breach of this certification is a violation of the EEO provisions of this contract The firm further certifies that no employee will be denied access to adequate facilities on the basis of sex or disability b. As used in this certification, the term "segregated facilities" means any waiting rooms, work areas, restrooms and washrooms, restaurants and other eating areas, timeclocks, locker rooms, and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees which are segregated by explicit direcUve, or are, in fact, segregated on the basis of race, color, religion, naUonal origin, age or disability, because of habit, local custom, or otherwise. The only excepUon will be for the disabled when the demands for accessibility override (e.g. disabled parking). c. The contractor agrees that it has obtained or will obtain identical certification from proposed subcontractors or material suppliers prior to award of subcontracts or consummation of malerial supply agreements of $10,000 or more and that it will retain such certifications in its files. IV PAYMENT OF PREDETERMINED MINIMUM WAGE (Applicable to all Federal-aid construction contracts exceeding $2,000 and to all related subcontracts, except for projects located on roadways classified as local roads or rural minor collectors, which are exempt) General: a. All mechanics and laborers employed or working upon the site of the work will be paid uncondiUonally and not less often than once a week and without subsequent deducUon or rebate on any account [except such payroll deductjons as are permitted by regulations (29 CFR 3) issued by the Secretary of Labor under the Copeland Act (40 U.S.C. 276c)] the full amounts of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment The payment shall be computed at wage rales nol less than those contained in the wage determinaUon of the Secretary of Labor (hereinafter "the wage determination") which is attached hereto and made a part hereof. regardless of any contractual relaUonship which may be alleged to exist between the contractor or its subcontractors and such laborers and mechanics. The wage determination (including any additional c1assificaUons and wage rates conformed under paragraph 2 of this Section IV and the DOL poster (WH-1321) or Form FHWA-1495) shall be posted at all Umes by the contractor and its subcontractors at the site of the work in a prominent and accessibte place where it can be easily seen by the workers. For the purpose of this Section, conlribuUons made or costs reasonably anticipated for bona fide fringe benefits under Section 1(bX2) of the Davis-Bacon Act (40 U.S.C. 276a) on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provi- sions of Sectjon IV, paragraph 3b, hereof. Also, for the purpose of this Section, regular contribuUons made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs, which cover the particular weekly period, are deemed to be constructively made or incurred during such we<!kly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage Exhibit I - Page 3 of 9 REQUIRED BY 23 CFR 633 102 determination for the classification of wor1< actually performed, without regard 10 skill, except as provided in paragraphs 4 and 5 of this Secton IV b, Laborers or mechanics performing wor1< in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein, provided, that the employer's payroll records accurately set forth the time spent in each classification in which wor1< is performed. c. All rulings and interpretations of the Davis-Bacon Act and related acts contained in 29 CFR 1, 3, and 5 are herein incorpo- rated by reference in this contract. 2. Classification: a. The SHA contracting officer shall require that any class of laborers or mechanics employed under the contract, which is not listed in the wage determinaton, shall be classified in conformance with the wage determination. b. The contracting officer shall approve an additional classification, wage rate and fringe benefits only when the following criteria have been met: (1) the wor1< to be performed by the additonal classification requested is not performed by a classification in the wage determination; (2) the addiUonal classification is utlized in the area by the construction industry; (3) the proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination; and (4) with respect to helpers, when such a classification prevails in the area in which the wor1< is performed. c. If the contractor or subcontractors, as appropriate, the laborers and mechanics (if known) to be employed in the addition- al classification or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the acton taken shall be sent by the contracting officer to the DOL, Administrator of the Wage and Hour Division, Employment Stan- dards Administration, Washington, D,C. 20210. The Wage and Hour Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary d, In the event the contractor or subcontractors, as appro- priate, the laborers or mechanics to be employed In the additional c1assificaton or their representatives, and the contracting officer do not agree on the proposed classificaton and wage rate (including the amount designated for fringe benefils, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommenda- ton of the contracting officer, to the Wage and Hour Administrator for determination. Said Administrator, or an authorized represen- tative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 3o-day period that additional time is necessary e. The wage rate (including fringe benefits where appropri- ate) determined pursuant to paragrap!12c or 2d of this Seeton IV shall be paid to all wor1<ers performing work in the additional classification from the first day on which wor1< is performed in the classification, 3. Payment of Fringe Benefits: Exhibit I a. Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor or subcontractors, as appropriate, shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly case equivalent thereof. b. If the contractor or subcontractor, as appropriate, does not make payments to a trustee or other third person, he/she may consider as a part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, provided, that the Secre- tary of labor has found, upon the written request of the contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. 4 Apprentices and Trainees (Programs of the U,S, DOL) and Helpers: a, Apprentices: (1) Apprentices will be permitted to work at less than the predetermined rate for the wor1< they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the DOL, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State apprenticeship agency recognized by the Bureau, or if a person is employed in hislher first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of Apprenticeship and Training or a State apprenticeship agency (where appropriate) to be eligible for probationary employment as an apprentice. (2) The allowable ratio of apprentices to joumeyman- level employees on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire wor1< force under the registered program. Any employee listed on a payroll at an apprentice wage rate, who is not regis- tered or otherwise employed as stated above, shall be paid not less than the applicable wage rate listed in the wage determina- tion for the classification of wor1< actually performed. In addition, any apprentice performing wor1< on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor or subcontractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (ex- pressed in percentages of the joumeyman-Ievel hourly rate) specified in the contractor's or subcontractor's registered program shall be observed. (3) Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeyman-level hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determi- nation for the applicable classification. If the Administrator for the Wage and Hour Division delermines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. (4) In the event the Bureau of Apprenticeship and Training, or a State apprenticeship agency recognized by the Bureau, withdraws approval of an apprenticeship program. the contractor or subcontractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the Exhibit I - Page 4 of 9 REQUIRED BY 23 CFR 633 102 comparable work performed by regular employees until an accept- able program is approved. b. Trainees: (1) Excepl as provided in 29 CFR 5,16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the DOL, Employment and Training Administration, (2) The ratio of trainees to joumeyman-Ievel employees on the jOb site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid nolless than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. (3) Every trainee must be paid at not less than the rate specified in the approved program for his/her level of progress, expressed as a percentage of the journeyman.level hourly fate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines Ihat there is an apprentice- ship program associated with the corresponding journeyman-level wage rate on the wage determination which provides for less than full fringe benefits for apprentices, in which case such trainees shall receive the same fringe benefits as apprentices, (4) In the event the Employment and Training Administration withdraws approval of a training program, the contractor or subcontractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. c, Helpers: Helpers will be permitted to work on a project if the helper classification is specified and defined on the applicable wage determination or is approved pursuant to the conformance procedure set forth in Section IV.Z. Any worker listed on a payroll at a helper wage rate, who is not a helper under a approved definition, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually per- formed. 5. Apprentices and Trainees (Programs of the U,S. DOT): Apprentices and trainees working under apprenticeship and skill training programs which have been certified by the Secretary of Transportation as promoting EEO in connection with Federal- aid highway construction programs are not subject to the require- ments of paragraph 4 of this Section IV The straight time hourly wage rates for apprentices and trainees under such programs will be established by the particular programs. The ratio of apprentic- es and trainees to journeymen shall not be greater than permitted by the terms of the particular program. 6. Withholding: The SHA shall upon its own action or upon written request of an authorized representative of the DOL withhold, or cause to be withheld, from the contractor or subcontractor under this Exhibit I contract or any other Federal contract with the same prime contractor, or any other Federally-assisted contract subject to Davis-Bacon prevailing wage requirements which is held by the same prime contractor, as much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, em- ployed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the SHA contracting officer may, after written notice to the contractor, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased, 7 Overtime Requirements: No contractor or subcontractor contracting for any part of the contract work which may require or involve the emptoyment of laborers, mechanics, watchmen, or guards (including apprentices, trainees, and helpers described in paragraphs ~ and 5 above} shall require or permit any laborer, mechanic, watchman, orguard in any workweek in which he/she is employed on such work, to work in excess of 40 hours in such workweek unless such laborer, mechanic, watchman, or guard receives compensation at a rate not less than one-and-one-half times hislher basic rate of pay for all hours worked in excess of 40 hours in such workweek. 8. Viotatlon: Liability for Unpaid Wages; Liquidated Damages: In the event of any violation of the clause set forth in paragraph 7 above, the contractor and any subcontractor responsible thereof shall be liable to the affected employee for his/her unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory) for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer, mechanic, watchman, or guard employed in violation of the clause set forth in paragraph 7, in the sum of $10 for each calendar day on which such employee was reqUired or permitted to work in excess of the standard work week of 40 hours without payment of the overtime wages required by the clause set forth in paragraph 7 9 Withholding for Unpaid Wages and Uquldated Damages: The SHA shall upon its own action or upon written request of any authorized representative of the DOL withhold, or cause to be withheld, from any monies payable on account of wor\< performed by the contractor or subcontractor under any such contract or any other Federat contract with the same prime contractor, or any other Federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined 10 be necessary 10 satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph 8 above. V STATEMENTS AND PAYROLLS (Applicable to all Federal-aid construction contracts exceeding $2,000 and to all related subcontracts, except for projects located on roadways classified as local roads or rural collectors, which are exempt.) 1 Compliance with Copeland Regulations (29 CFR 3): The contractor shall comply with the Copeland Regulations of the Secretary of Labor which are herein incorporated by reference. 2. Payrolls and Payroll Records: ExhibIt I - Page 5 of 9 REQUIRED BY 23 CFF 633 102 a. Payrolls and basic records relating thereto shall be maintained by the contractor and each subcontractor during the course of the work and preserved for a period of 3 years from the date of completion of the contract for all laborers, mechanics, apprentices, trainees, watchmen, helpers, and guards working at the site of the work, b. The payroll records shall contain the name, social security number, and address of each such employee; his or her correct classification; hourly rates of wages paid (induding rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalent thereof the types described in Section 1 (b)(2)(B) of the Davis Bacon Act); daily and weekly number of hours worked; deductions made; and actual wages paid. In addition, tor Appalachian contracts, the payroll records shall contain a notation indicating whether the employee does, or does not. normally reside in the labor area as defined in Attachment A, paragraph 1 Whenever the Secretary of Labor, pursuant to Section IV, paragraph 3b, has found that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in Section 1 (b)(2)(8) at the Davis Bacon Act, the contractor and each subcontractor shall maintain records which show that the commit- ment to provide such benefits is enforceable, that the plan or program is financially responsible, that the plan or program has been communicated in writing to the laborers or mechanics affected, and show the cost anticipated or the actual cost incurred in providing benefits. Contractors or subcontractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprentices and trainees, and ratios and wage rates prescribed in the applicable programs. c. Each contractor and subcontractor shall furnish, each week in which any contract work is performed, to the SHA resident engineer a payroll of wages paid each of its employees (including apprentices, trainees, and helpers, described in Section IV, para- graphs 4 and 5, and watchmen and guards engaged on work during the preceding weekly payroll period). The payroll submitted shall set out accurately and completely all of the information required to be maintained under paragraph 2b of this Section V This information may be submitted in any form desired, Optional Form WH-347 is available for this purpose and maybe purchased from the Superintendent of Documents (Federal stock number 029-005-0014-1), U.S. Government Printing Office, Washington, D.C. 20402, The prime contractor is responsible tor the submis- sion of copies of payrolls by all subcontractors, d. Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the contractor or subcon- tractor or hislher agent who pays or supervises the payment of the persons employed under the contract and shall certify the follow- ing: (1) that the payroll for the payroll period contains the information required to be maintained under paragraph 2b of this Section V and that such information is correct and complete; (2) that such laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages eamed, other than permissible deductions as set forth in the Regulations, 29 CFR 3; (3) that each laborer or mechanic has been paid not less that the applicable wage rate and fringe benefits or cash equivalent for the classification of worked performed, as specified in the applicable wage determination incorporated into the contract. e. The weekly submission of a properly executed certifica- tion set forth on the reverse side of Optional Form WH-347 shall Exhibit I satisfy the requirement for submission of the "Statement of Compliance" required by paragraph 2d of this Section V f, The falsification of any of the above certifications may subject the contractor to civil or criminal prosecution under 18 U.S,C, 1001 and 31 U,S.C. 231 g. The contractor or subcontractor shall make the records required under paragraph 2b of this Section V available for inspection, copying, or transcription by authorized representatives of the SHA, the FHWA, or the DOL, and shall permit such repre- sentatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records orto make them available, the SHA, the FHWA, the DOL, or all may, after written notice to the contractor, sponsor, applicant, or owner, take such actions as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12, VI. RECORD OF MATERIALS, SUPPLIES, AND LABOR 1 On all Federal-aid contracts on the National Highway System, except those which provide solely for the installation of protective devices at railroad grade crossings, those which are constructed on a force account or direct labor basis, h"ghway beautification contracts, and contracts for which the total final construction cost for roadway and bridge is less than $1 ,000,000 (23 CFR 635) the contractor shall: a. Become familiar with the list of specific materials and supplies contained in Form FHWA-47, "Statement of Materials and Labor Used by Contractor of Highway Construction Involving Federal Funds," prior to the commencement of work under this contract. b. Maintain a record of the total cost of all materials and supplies purchased for and incorporated in the work, and also of the quantities of those specific materials and supplies listed on Form FHWA-47, and in the units shown on Form FHWA-47 c. Furnish, upon the completion of the contract, to the SHA resident engineer on Form FHW A-4 7 together with the data required in paragraph 1 b relative to materials and supplies, a final labor summary of all contract work indicating the total hours worked and the total amount earned, 2, At the prime contractor's option, either a single report covering all contract work or separate reports for the contractor and for each subcontract shall be submitted, VII. SUBLETTING OR ASSIGNING THE CONTRACT 1 The contractor shall perform with its own organization contract work amounting to not less than 30 percent (or a greater percentage if specified elsewhere in the contract) of the total original contract price, excluding any specialty items designated by the State. Specialty items may be performed by subcontract and the amount of any such speciatty items performed may be deducted from the total original contract price before computing the amount of work required to be performed by the contractor's own organization (23 CFR 635). a. "lis own organization" shall be construed to include only workers employed and paid directly by Ihe prime contractor and equipment owned or rented by the prime contractor, with or without operators. Such lerm does not include employees or equipment of a subcontractor, assignee, or agent of the prime contractor b. "Specialty lIems. shall be construed to be limited to work that requires highly specialized knowledge, abilities. or Exhibit I - Page 6 of 9 REQUIRED BY 23 CFR 633 102 equipment not ordinarily available in the type of contracting organizations qualified and expected to bid on the contract as a whole and in general are to be limited to minor components of the overall contract 2, The contract amount upon which the requirements set forth in paragraph 1 of Section VII is computed includes the cost of material and manufactured products which are to be purchased or produced by the contractor under the contract provisions. 3, The contractor shall furnish (a) a competent superintendent or supervisor who is employed by the finn, has full authority to direct performance of the work in accordance with the contract requirements, and is in charge of all construction operations (regardless of who perfonns the work) and (b) such other of its own organizational resources (supervision, management, and engineering services) as the SHA contracting officer detennines is necessary to assure the performance of the contract. 4 No portion of the contract shall be sublet, assigned or otherwise disposed of except with the written consent of the SHA contracting officer. or authorized representative, and such consent when given shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract Written consent will be given only afler the SHA has assured that each subcontract is evidenced in writing and that it contains all pertinent proviSions and requirements of the prime contract. VIII. SAFETY ACCIDENT PREVENTION 1 tn the perfonnance of this contract the contractor shall comply with all applicable Federal, State, and local laws governing safety, health, and sanitation (23 CFR 635). The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions as it detennines, or as the SHA contracting officer may detennine, 10 be reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the pertonnance of the work covered by the contract. 2. It is a condition of this contract, and shall be made a condition of each subcontract, which the contractor enters into pursuant to this contract, that the contractor and any subcontractor shall not permit any employee, in perfonnance of the contract, to work in surroundings or under conditions which are unsanitary, hazardous or dangerous to hisfher health or safety, as detennined under construction safety and health standards (29 CFR 1926) promulgated by the Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (40 U.s.C 333), 3. Pursuant to 29 CFR 1926.3, it is a condition of this contract that the Secretary of Labor or authorized representative thereof, shall have right of entry to any site of contract performance to inspect or investigate the matter of compliance with the construc- tion safety and heatth standards and to carry out the duties of the Secretary under Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C 333). IX. fAlSE STATEMENTS CONCERNING HIGHWAY PROJECTS In order to assure high quality and durable construction in confonnity with approved plans and specifications and a high degree of reliability on statements and representations made by engineers, contractors, suppliers, and workers on Federal-aid highway projects, it is essential that all persons concerned with the project perfonn their functions as carefully, thoroughly, and honestly as possibie. Willful falsification, distortion, or misrepre- sentation with respect to any facts related to the project is a violation of Federal law. To prevent any misunderstanding regarding the seriousness of these and similar acts, the following notice shall be posted on each Federal-aid highway projecI (23 Exhibit I CFR 635) in one or more places where it is readily available to all persons concemed with the project: NOTICE TO All PERSONNEL ENGAGED ON FEDERAl-AID HIGHWAY PROJECTS 18 U.S.C 1020 reads as follows: "Whoever, being an officer, agent, or employee of the United States, or of any State or T emtory, or whoever, whether a person, association, finn, or corporation, knowingly makes any false statement, false representation, or false report as to the character, qualify, quantity, or cost of the material used or to be used, or the quantify or quality of the work perfonned or to be perfonned, or the cost thereof in connection with the submission of plans, maps, specifications, contracts, or costs of construction on any highway or related project submitted for approval to the Secretary of Transportation; or Whoever knowingly makes any false statement, false representation, false report or false claim wifh respect to the character, quality, quantity, or cost of any work perfonned or to be perfonned, or materials fumished or to be fumished, in connection with the construction of any highway or related project approved by the Secretary of Transportation; or Whoever knowingly makes any false statement or false representation as to material fact in any statement, certificate, or report submitted pursuant to proviSions of the Federal-aid Roads Act approved July 1, 1916, (39 Stat 355), as amended and supplemented; Shall be fined not more that $10,000 or imprisoned not more than 5 years or both. " X. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT (Applicabte to all Federal-aid construction contracts and to all related subcontracts of $100,000 or more,) By submission of this bid or the execution of this contract or subcontract, as appropriate, the bidder, Federal-aid construction contractor, or subcontractor, as appropriate, will be deemed to have stipulated as follows: 1 That any faCility that is or will be utilized in the performance of this contract, untess such contract is exempt under the Ciean Air Act, as amended (42 U.S C. 1857 m~., as amended by Pub.L 91-604), and under the Federal Water Pollution Control Act as amended (33 U.SC 1251 m~., as amended byPub.L 92-500), Executive Order 11738, and regulations in implementation thereof (40 CFR 15) is not iisted, on the date of contract award, on the U.S. Environmental Protection Agency (EPA) List of Violating Facilities pursuant to 40 CFR 15.20. 2. That the finn agrees to comply and remain in compliance with all the requirements of Section 114 of the Clean Air Act and Section 308 of the Federal Water Pollution Control Act and all regulations and guidelines listed thereunder 3. That the finn shall promptly notify the SHA of the receipt of any communication from the Director, Office of Federal Activities, EPA, indicating that a facility that is or will be utilized for the contract is under consideration to be listed on the EPA List of Violating Facilities. 4 Thai the finn agrees to include or cause to be included the requirements of paragraph 1 through 4 of this Section X in every nonexempt subCOntract, and further agrees to take such action as the government may direct as a means of enforcing such requirements. ExhibIt I - Page 7 of 9 REQUIRED BY 23 CFR 633.102 XI. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION 1 Instructions for Certification - Primary Covered Transactions, (Applicable to all Federal-aid contracts - 49 CFR 29) a. By signing and submitting this proposal, the prospective primary participant is providing the certification set out be\ow b. The inability of a person to provide the certification set out below will not necessarily result in denial of participation in this covered transaction. The prospective participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective primary participant to furnish a certification or an exptanation shall disqualify such a person from participation in this transaction, c. The certification in this dause is a material representation of fact upon which reliance was placed when the department or agency determined to enter into this transaction. If it is later determined that the prospective primary participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Govemment, the department or agency may terminate this transaction for cause of default d. The prospective primary participant shall provide immedi- ate written notice to the department or agency to whom this proposal is submitted if any lime the prospective primary partici- pant learns that its certification waS erroneous when submitted or has become erroneous by reason of changed circumstances. e. The terms "covered transaction," "debarred," "suspended," "ineligible," "lower tier covered transaction," "participant," "person," "primary covered transaction," "principal," "proposal," and "voluntarily excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549, You may contact the department or agency to which this proposal is submitted for assistance in obtaining a copy of those regulations. f. The prospective primary participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, dedared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering inlo this transaction. g. The prospective primary participant further agrees by submitting this proposal that it will indude the clause titled "Certification Regarding Debarment. Suspension, Ineligibility and Voluntary Exdusion-Lower Tier Covered Transaction," provided by the department or agency entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. h. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, inetigible, or volun- tarily exduded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility 01 its principals. Each participant may, but is not required to, check the nonprocurement portion of the "Lists 01 Parties Exduded From Federal Procurement or Nonprocurement Programs" (Nonprocure- ment List) which is compiled by the General Services Administration. Exhibit I I. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings, j. Except lor transactions authorized under paragraph f of these instructions, il a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded Irom participation in this transaction, in addition to other remedies available to the Federal Govemment, the department or agency may terminate this transaction for cause or default. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion--Primary Covered Transactions 1 The prospective primary participant certifies to the best of its knowiedge and belief, that it and its principals: a, Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded Irom covered transactions by any Federal department or agency; b. Have not within a 3-year period preceding this proposal been convicted of or had a civil judgement rendered against them for commission 01 Iraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, lorgery, bribery, falsification or destruction 01 records, making lalse statements, or receiving stolen property; c. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission 01 any of the offenses enumerated in paragraph 1b of this certification; and d, Have not within a 3-year period preceding this application/proposal had one or more publiC transactions (Federal, State or local) terminated lor cause or default 2. Where the prospective primary participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. 2. Instructions for Certification - Lower Tier Covered Transactions: (Applicable to all subcontracts, purchase orders and other lower tier transactions 01 $25,000 or more - 49 CFR 29) a. By signing and submitting this proposal, the prospective lower tier is providing the certification set out below. b. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification. in addition to other remedies available to the Federal Government, the department, or agency with which this transaction originated may pursue available remedies. induding suspension andlor debannent Exhibit I - Page 8 of 9 REQUIRED BY 23 CFR 633 102 c. The prospective lower tier participant shall provide immediate written notice to the person 10 which this proposal is submitted if at any time Ihe prospective lower tier participant leams that its certification was erroneous by reason of changed circumstances. d, The terms "covered transaction," "debarred," "suspended," "ineligible," "primary covered transaction," "participant," "person," "principal," "proposal," and "voluntarily excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations. e. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated, f. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction," without modificalion, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. g. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or volun- tarilyexcluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it delermines the eligibility of its principals, Each participant may, but is not required to, check the Nonprocurement List. h. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings, I. Except for transactions authorized under paragraph e of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension andlor debarment. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transactions: 1 The prospeclive lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. 2, Where the prospective lower tier participant is unable to certify 10 any of the statements in this certification, such prospec- tive participant shall attach an explanation to this proposal. Exhibit I XII. CERTIFICATION REGARDING USE OF CONTRACT FUNDS OR LOBBYING (Applicable to all Federal-aid construction contracts and to all related subcontracts which exceed $100,000 - 49 CFR 20) 1 The prospective participant certifies, by signing and submit- ting this bid or proposal, to the best of his or her knowledge and belief, that: a. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employ- ee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continua- lion, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. b, If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempt- ing to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Oisclosure Form to Report Lobbying," in accordance with its instructions. 2, This certification is a material representalion of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C 1352. Any person who fails to file the required certification shall be subject to a civil penalty of nolless than $10,000 and not more than $100,000 for each such failure. 3, The prospective participant also agrees by submilling his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such recipients shall certify and disclose accordingly Exhibit I - Page 9 of 9 REQUIRED BY 23 CFR 633 102 Exhibit J FEDERAL REQUIREMENTS Federal laws and regulations that may be applicable to the Work include' A. The "Uniform Admmistrative Requirements for Grants and Cooperative Agreements to State and Local Governments (Common Rule), at 49 Code of Federal Regulations, Part 18, except to the extent that other applicable federal requirements (including the provisions of 23 CFR Parts 172 or 633 or 635) are more specific than provisions of Part 18 and therefore supersede such Part 18 provisions. The requirements of 49 CFR 18 include, WIthout limitation, 1 the Local Agency/Contractor shall follow applicable procurement procedures, as required by section 18.36( d); 2. the Local Agency/Contractor shall request and obtain prior CDOT approval of changes to any subcontracts in the manner, and to the extent required by, applicable provIsions of section 18,30; 3 the Local Agency/Contractor shall comply WIth section 18.37 concerning any subgrants; 4 to expedite any CDOT approval, the Local Agency/Contractor's attorney, or other authorized representative, shall also submit a letter to CDOT certifymg Local Agency/Contractor compliance with section 18.30 change order procedures, and with 18.36(d) procurement procedures, and WIth 18,37 subgrant procedures, as apphcable; 5 the Local Agency/Contractor shall mcorporate the specific contract provisions described in 18.36(i) (which are also deemed incorporated herein) into any subcontract(s) for such services as terms and conditions of those subcontracts. B. Executive Order 11246 of September 24, 1965 entitled "Equal Employment Opportumty," as amended by ExecutIVe Order 11375 of October 13, 1967 and as supplemented in Department of Labor regulations (41 CFR Chapter 60) (All construction contracts awarded in excess of $1 0,000 by grantees and their contractors or subgrantees). C The Copeland "Anti-Kickback" Act (18 U.S C 874) as supplemented in Department of Labor regulations (29 CFR Part 3) (All contracts and subgrants for construction or repaIr), D The Davis-Bacon Act (40 U,S.c. 276a to a-7) as supplemented by Department of Labor regulations (29 CFR Part 5) (Construction contracts in excess of $2,000 awarded by grantees and subgrantees when required by Federal grant program legislatIOn, This act requires that all laborers and mechanics employed by contractors or sub-contractors to work on construction projects financed by federal assistance must be paId wages not less than those estabhshed for the locality of the project by the Secretary of Labor). E. Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C 327-330) as supplemented by Department of Labor regulalions (29 CFR Part 5), (Construction contracts awarded by grantees and subgrantees in excess of $2,000, and m excess of $2,500 for other contracts which involve the employment of mechanics or laborers). F. Standards, orders, or reqUirements Issued under sectJon 306 of the Clear AIr Act (42 US C I 857(h), sectIOn 508 of the Clean Water Act (33 U.S.C 1368). Executive Order 11738, and Environmental Protection Agency regulations (40 CFR Part 15) (contracts, subcontracts, and sub grants of amounts in excess of $100,000). G Mandatory standards and policies relatmg to energy effiCIency which are contained in the state energy conservation plan Issued in compliance w1th the Energy Policy and Conservation Act (Pub. L 94-163), H, Office of Management and Budget CIrculars A-87, A-21 or A-122, and A-I02 or A-I 10, whichever is applicable. I. The Hatch Act (5 USC 1501-1508) and Public Law 95-454 Section 4728. These statules state that federal Exhiblt J - Page 1 on Exhibit J funds cannot be used for partisan polItIcal purposes of any kind by any person or organization involved m the adrmmstration of federally-assisted programs. J. 42 use 6101 et seq. 42 use 2000d, 29 USC 794, and implementing regulatIOn, 45 C.F,R. Part 80 et. seq, These acts require that no person shall, on the grounds of race, color, national ongm, age, or handicap, be excluded from participatIOn in or be subjected to discriminatIOn in any program or actiVIty funded, m whole or part, by federal funds; K. The Americans with Disabilities Act (public Law 101-336,42 USC 12101,12102,12111-12117,12131- 12134,12141-12150,12161-12165,12181-12189,12201-12213 47 USC 225 and 47 use 611. L The Umform Relocation Assistance and Real Property Acquisition Policies Act, as amended (public Law 91- 646, as amended and Public Law 100-17, 101 Stat. 246-256). (If the contractor is acqUIring real property and dlsp]acing households or busmesses m the performance ofthlS contract.) M, The Drug-Free Workplace Act (Public Law 100-690 Title V, subtItle D, 41 USC 701 et seq.), N. The Age Discnmination Act of 1975, 42 U,S e Sections 6101 et. seq. and its lmplementing regulation, 45 C.F.R. Part 91, Section 504 of the RehabIlitalion Act of 1973, 29 U.S C 794, as amended, and implementing regulatIOn 45 C.F.R. Part 84 o 23 c.F.R. Part 172, concerning "Administration of Engineering and Design Related Contracts" P 23 C.F.R Part 633, concernmg "ReqUIred Contract Provisions for Federal-Aid ConstructIOn Contracts" Q 23 C.F.R. Part 635, concerning "Construction and Maintenance Provisions" R. TItle VI of the Civil Rights Act of 1964 and I 62(a) of the Federal Aid Highway Act of 1973 The reqUlrements for which are shown in the Nondiscrimination Provisions, which are attached hereto and made a part hereof S. Nondiscnmination ProvlslOns: In compliance WIth Title VI of the Civil Rights Act of 1964 and with Section I 62(a) of the Federal Aid Highway Act of 1973, the Contractor, for itself, its assignees and successors in interest, agree as follows. I Compliance with RegulatIOns, The Contractor will comply with the Regulations of the Department of Transportation relative to nondIscrimination in Federally assisted programs of the Department of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafterreferred to as the "Regulations"), which are herein incorporated by reference and made a part of this contract. 2, NondiscriminatIon, The Contractor, with regard to the work performed by it after award and pnor to completion of the contract work, will not discriminate on the ground of race, color, sex, mental or physical handicap or national ongm in the selection and retention of Subcontractors, including procurement of materials and leases of eqUIpment. The Contractor will not partlcipate either directly or indirectly m the discrimination prohibited by SectIOn 21,5 of the Regulalions, including employmenl practices when the contract covers a program set forth in Appendix C of the Regulations. 3. SolIcitations for Subcontracts. Includmg Procurement of Materials and Equipment. In all solicitatIOns Exhibit J - Page 2 of 3 .., Exhibit J either by competItIve biddmg or negotiatIOn made by the Contractor for work to be performed under a subcontract, including procurement of materials or equipment, each potential Subcontractor or supplier shall be notIfied by the Contractor ofthe Contractor's obligations under this contract and the RegulatIOns relative to nondlscrimmatlOn on the ground of race, color, sex, mental or physIcal handicap or national origm. 4 Information and Reports. The Contractor will proVide all mformation and reports reqUired by the Regulations, or orders and mstructlOns issued pursuant thereto and will permit access to Its books, records, accounts, other sources of information and ItS facihties as may be detennmed by the State or the FHW A to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of the Contractor IS m Ihe exclusive possession of another who fails or refuses to furnish this information, the Contractor shall so certIfy to the State, or the FHW A as appropriate and shall set forth what efforts have been made to obtain the information. 5 Sanctions for Noncompliance, In the event of the Contractor's noncompliance with the nondiscriminatIOn proVIsions of this contract, the State shall impose such contract sanctions as it or the FHW A may determine to be appropriate, including, but nOllimited to. a. Withholding of payments to the Contractor under the contract until the Contractor complies, and/or; b Cancellation, termmation or suspension of the contract, in whole or in part, 6 Incorporation of PrOVIsions. The Contractor will include the provisions of paragraphs A through F m every subcontract, Including procurement of materials and leases of equipment, unless exempt by the Regulations, orders, or instructions issued pursuant thereto The Contractor will take such action with respect to any subcontract or procurement as the State or the FHW A may direct as a means of enforcing such proviSIOns mcludmg sanctions for noncompliance; provided, however, that, in the event the Contractor becomes Involved in, or is threatened WIth, litigation with a Subcontractor or supplIer as a result of such direction, the Contractor may request the State to enter into such litigation to protect Ihe interest of the State and in addition, the Contractor may request the FHW A to enter into such htlgation to protect the interests of the United States, Exhibit J ~ Page 3 of 3