HomeMy WebLinkAboutbocc.con.222.2010 CONTRACT # - nt
RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO, REGARDING RECEIPT OF A NATIONAL SCENIC
BYWAY GRANT TO RESTORE THREE OF THE HISTORIC REDSTONE COKE OVENS
RESOLUTION NO. in -2010
WHEREAS the Board of County Commissioners of Pitkin County (BOCC) is committed to the
preservation of the historic Redstone Coke Ovens; and
WHEREAS Pitkin County and consulting engineering firm, JVA, Inc., have prepared final
Drawings and Project Specifications for the Redstone Coke Ovens Stabilization and
Restoration Project; this project entails the Stabilization of 45 - 51 and Restoration of
three of the historic Redstone Coke Ovens, at an estimated total cost of $788,469 to
$866,367 (depending on the number of ovens stabilized).
WHEREAS Pitkin County applied for and was awarded a National Scenic Byways Grant from
the Federal Highways Administration (FHWA) to help fund the Restoration portion of
the project; this grant requires a 20% local match. These funds break down as follows:
• $113,100 National Scenic Byway grant
• $25,428 is cash match by Pitkin County
• $3,700 is in -kind match by Pitkin County
• $500 is cash match by the West Elk Loop Scenic and Historic Byway
WHEREAS the BOCC has already entered into an Intergovernmental Agreement with the
Colorado Department of Transportation (CDOT) to use Transportation Enhancement
Grant funds (also awarded by FHWA) for the Stabilization portion of this project; this
grant requires a 20% local match. These funds break down as follows:
• $413,000 is Transportation Enhancement grant
• $103,250 is cash match by the County
WHEREAS the County has also been offered $143,089 in federal American Recovery and
Reinvestment Act (ARRA) funds, to help cover both the Stabilization and Restoration
portions of this project, to be administered via IGA with CDOT; this grant does not
require a local match.
WHEREAS the property owner, Pitkin County, along with the Pitkin County Historic
Preservation Officer, the Aspen Valley Land Trust, the Colorado Department of
Transportation, the Redstone Historical Society, and the Redstone Caucus are in full
support of this project; and
WHEREAS Pitkin County has agreed to enter into a contract with the State of Colorado,
Department of Transportation to receive certain Federal funds administered by the State
and allocated to the County for the Redstone Coke Ovens Restoration Project; and
WHEREAS the BOCC has already authorized expenditure of Park Dedication Fees to meet the
required cash matches for this project.
NOW THEREFORE BE IT RESOLVED:
1. The BOCC accepts federal National Scenic Byway grant funding in the amount of
$133,100 for Restoration of the historic Redstone Coke Ovens.
2. The BOCC approves the use of $25,428 cash (already appropriated for this Project
from Park Dedication Fees) and $3,700 Staff time to meet the required 20% local
match.
2. The Board intends to collect $500 from the West Elk Loop Scenic and Historic
Byway (WELSHB) for the remaining portion of the required cash match, committed by
WELSHB in the application for Bvways grant funding.
3. This resolution shall be in full force and effect upon its passage and approval.
4. The County hereby designates its Chair to sign the agreement with the Colorado
Department of Transportation to fund the project.
INTRODUCED, FIRST READ, AND SET FOR PUBLIC HEARING ON August 11, 2010.
NOTICE OF PUBLIC HEARING PUBLISHED IN THE ASPEN TIMES WEEKLY ON August
15, 2010
ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON August 25, 2010
PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN
TIMIXS WEEKLY ON L% -5 - VO /0
A TES BOA> OF COUNTY C MMISSIONERS
By //lvY By.�1�`U�"_,4`6 U
Jeanett Jones George Newman, Chair
Depu ounty Clerk
Date:
APPROVED AS TO FORM: M AN GER APPRO AL
John Ely, Count torney Hilary Flet r, County Manager
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CMS: I1 -HT0-22731 /SAP_PO# :291000917
STATE OF COLORADO
DEPARTMENT OF TRANSPORTATION
SCENIC BYWAYS AGREEMENT
with
PITKIN COUNTY
TABLE OF CONTENTS
1. PARTIES 1
2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY 1
3. RECITALS 1
4. DEFINITIONS 2
5. TERM and EARLY TERMINATION 3
6. SCOPE OF WORK 3
7. PAYMENTS 4
8. BILLING: REIMBURSEMENT AND ALLOWABLE COSTS 5
9. REPORTING - NOTIFICATION- PROGRAM MONITORING 6
10. RECORDS 7
11. CONFIDENTIAL INFORMATION -STATE RECORDS 8
12. CONFLICTS OF INTEREST 9
13. BREACH 9
14. REMEDIES 9
15. NOTICE and REPRESENTATIVES 10
16. STATEWIDE CONTRACT MANAGEMENT SYSTEM 11
17. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE 11
18. DISADVANTAGED BUSINESS ENTERPRISE (DBE) 12
19. GENERAL PROVISIONS 12
20. SPECIAL PROVISIONS 16
21. SIGNATURE PAGE 18
EXHIBIT A -SCOPE OF WORK 19
EXHIBIT B- OPTION LETTER [SAMPLE OPTION LETTER] 22
EXHIBIT C- REQUIRED CONTRACT PROVISIONS -FHWA 23
EXHIBIT D- FEDERAL REQUIREMENTS 32
1. PARTIES
THIS Agreement is entered into by and between the Colorado Department of Transportation (hereinafter
called "CDOT OR THE STATE "), and the PITKIN COUNTY (hereinafter called "PITKIN COUNTY or
the Agency "), a public entity operating within the STATE OF COLORADO.
2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY
This Agreement shall not be effective or enforceable until it is approved and signed by the Colorado State
Controller or designee (hereinafter called the "Effective Date "), but shall be effective and enforceable
thereafter in accordance with its provisions. CDOT shall not be liable to pay or reimburse PITKIN
COUNTY for any performance hereunder, including, but not limited to costs or expenses incurred, or be
bound by any provision hereof prior to the Effective Date.
3. RECITALS
A. Authority, Appropriation, And Approval
Authority to enter into this Agreement exists in C.R.S. 43 - - 106; 43 -1 -224; 30 -28 -105; 29 -1 -203; 24 -110-
203, and funds have been budgeted, appropriated and otherwise made available, and a sufficient
unencumbered balance thereof remains available for payment. Required approvals, clearance and
coordination have been accomplished from and with appropriate agencies.
G/L Account: 4231200011 Company Code: 1000 1 Fund: 400 I CO Area: 1000 Functional Area: 3401
WBS Element: 17633.15.02 Funds Center: DT510 -010 Vendor Number: 5100786
Catalog Federal Domestic Assistance Number (CFDA) 20.205 Total Contract Encumbrance: $141,375
Federal Total (80 %): $113,100 I Local Match Total (20%): $28,275 1
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B. Consideration
Local Agency
The Agency has coordinated with CDOT, who has obtained federal financial assistance for Scenic Byways
Program, in accordance with the terms, conditions, and provisions hereinafter contained in this Agreement
and in compliance with applicable federal laws and regulations. And the Agency represents that it has
personnel, professional qualifications, ability, and resources to provide useful, accurate information to
individuals and employers in facilitating its Scenic Byways Program and perform this service.
CDOT
CDOT desires to enter into this Agreement for such Services from PITKIN COUNTY in order to develop,
implement and monitor its Scenic Byways Program, as described in the Scope of Work, attached as
Exhibit A, in accordance with the Federal Highway Administration (FHWA) and State of Colorado laws,
regulations, and policies.
C. Purpose
The "Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users" of 2005
(SAk~ETEA -LU) has continued the institution of the "National Scenic Byways Grant Program," which
offers Federal financial assistance for designated scenic byways through a grant program for carrying out
eligible projects on highways which the State has designated as scenic byways. The Colorado Scenic and
Historic Byways Commission, created by Executive Order on March 16, 1989 for the purpose of guiding
the Colorado Scenic and Historic Byways Program, together with the Colorado Transportation
Commission, have developed criteria and approved the designation of twenty -five scenic and historic
byways throughout the State.
D. References
All references in this Agreement to sections (whether spelled out or using the § symbol), subsections,
exhibits or other attachments, are references to sections, subsections, exhibits or other attachments
contained herein or incorporated as a part hereof, unless otherwise noted.
4. DEFINITIONS
The following terms as used herein shall be construed and interpreted as follows:
A. Agreement or Contract
"Agreement" or "Contract" means this Agreement its terms and conditions, attached exhibits, documents
incorporated by reference under the terms of this Agreement, and any future modifying agreements,
exhibits, attachments or references incorporated pursuant to Colorado State Fiscal Rules and Policies.
B. Agreement Funds
"Agreement Funds" means funds payable by CDOT to PITKIN COUNTY pursuant to this Agreement.
C. Budget
"Budget" means the budget for the Work described in Exhibit A.
D. Evaluation
"Evaluation" means the process of examining PITKIN COUNTY's Work and rating based on criteria
established in §6 and Exhibit A.
E. Exhibits and other Attachments
The following exhibit(s) are attached hereto and incorporated by reference herein: Exhibit A (Scope of
Work), Exhibit B (Option Letter), Exhibit C (Required Contract Provisions - FHWA), Exhibit D (Federal
Requirements).
F. Goods
"Goods" means tangible material acquired, produced, or delivered by PITKIN COUNTY either separately
or in conjunction with the Services PITKIN COUNTY renders hereunder.
G. Party and Parties
"Party" means CDOT or PITKIN COUNTY and "Parties" means both CDOT and PITKIN COUNTY.
H. Program or Project
Means the program or project for which the Work listed in Exhibit A is performed, which is from the
Effective Date through the duration of the Agreement.
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I. Services
"Services" means the required services to be performed by PITKIN COUNTY pursuant to this Agreement.
J. Subcontractor or Consultant
"Subcontractor" or "Consultant", to be used interchangeably, mean third - parties, if any, engaged by
PITKIN COUNTY to aid in performance of its obligations.
K. Work
"Work" means the tasks and activities PITKIN COUNTY is required to perform to fulfill its obligations
under this Agreement and Exhibit A, including the performance of the Services and delivery of the Goods.
L. Work Product
"Work Product" means the tangible or intangible results of PITKIN COUNTY's Work, including, but not
limited to, software, research, reports, studies, data, photographs, negatives or other finished or unfinished
documents, drawings, models, surveys, maps, materials, or Work Product of any type, including drafts.
5. TERM and EARLY TERMINATION
A. Term -Work Commencement
The Parties respective performances under this Agreement shall commence on the Effective Date. This
Agreement shall continue through the completion and final acceptance of the Project by CDOT and the
Agency, however the duration of this contract, including the exercise of any option letters or amendments,
shall not exceed five (5) years.
B. CDOT OPTION LETTER
i. Option to Increase or Decrease Quantities and Total Price
CDOT may increase or decrease the quantity of Goods /Services described in section/schedule /exhibit
based upon the rates established in the Contract. If CDOT exercises the option, it will provide written
notice to PITKIN COUNTY as least 30 days prior to the end of the current Contract term in a form
substantially equivalent to Exhibit B. Delivery/performance of the Goods /Service shall continue at the
same rates and terms. If exercised, the provisions of the Option Letter shall become part of and be
incorporated into the original Contract.
ii. Options for Phased Performance
The State may require PITKIN COUNTY to begin performance on the next contact phase as outlined in
the Statement of Work in Exhibit A and at the same terms and same conditions stated in the Contract. If
the State exercises this option, it will provide written notice to PITKIN COUNTY at least 30 days prior
to the end of the current phase in a form substantially equivalent to Exhibit B. If exercised, the
provisions of the Option Letter shall become part of and be incorporated into the original Contract.
CDOT Two Month Extension
CDOT, at its sole discretion upon written notice to PITKIN COUNTY as provided in *15, may
unilaterally extend the term of this Agreement for a period not to exceed two months if the Parties are
negotiating a replacement Agreement (and not merely seeking a term extension) at or near the end of any
initial term or any extension thereof. The provisions of this Agreement in effect when such notice is
given, including, but not limited to prices, rates, and delivery requirements, shall remain in effect during
the two -month extension. The two month extension shall immediately terminate when and if a
replacement Agreement is approved and signed by the Colorado State Controller or his designee.
C. ORDINANCE, RESOLUTION, AUTHORITY LETTER
When required, the Agency shall submit an ordinance, resolution or authority letter, which expressly
authorizes the Agency with the authority to enter into this contract and to expend its match share of the
Work. If required, a copy of such ordinance /resolution or authority letter is attached hereto.
6. SCOPE OF WORK
A. Work
Per 23 C.F.R. 420.111, PITKIN COUNTY shall complete the Work and other obligations as described
herein and Exhibit A. Work performed prior to the Effective Date or after the Termination Date shall not
be considered part of the Work. The Scope of Work shall include an estimation of anticipated benefits
from each program submitted, a Budget, the activity purpose, objectives, major tasks, timeline of expected
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completion, and an Evaluation process to determine the success of each activity stated in the Scope of
Work.
B. Notice
PITKIN COUNTY shall not commence Work to be completed in the Scope until the date specified by a
written notice, which may be electronic, and shall complete the Work within the period specified in the
Agreement unless the period or terms thereof are extended according to this Agreement.
C. Personnel
PITKIN COUNTY shall take all reasonable steps to carry out all activities described and identified in the
Scope of Work. PITKIN COUNTY shall be responsible to select staff /Consultant Services in compliance
with all applicable federal procurement requirements including 23 CFR 172 and 49 CFR Part 18. Any
Request for Proposal (RFP) used by PITKIN COUNTY to secure Consultant Services must be reviewed by
CDOT before PITKIN COUNTY releases the RFP. CDOT shall have 15 calendar days from the date of
receiving the RFP in which to return comments. Responses to CDOT's comments will be provided by
PITKIN COUNTY within 15 calendar days of receipt of the comments. PITKIN COUNTY shall notify
CDOT in writing before executing any contract for Consultant Services which utilizes program funding.
D. Goods and Services
PITKIN COUNTY shall procure Goods and Services necessary to complete the Work. Such procurement
shall be accomplished using Agreement funds and shall not increase the maximum amount payable
hereunder by CDOT.
E. Scope Amendment
PITKIN COUNTY shall amend the Scope of Work, in accordance with the terms of this contract, when:
1.) Adding or deleting funds from the Scope of Work Budget.
2.) Adding or deleting substantial portions of Scope of Work activities.
7. PAYMENTS
CDOT shall, in accordance with the provisions of this §7, pay PITKIN COUNTY in the amounts and using
the methods set forth below:
A. Basis and Maximum Amount
The maximum amount payable under this Agreement to PITKIN COUNTY by CDOT under this contract
is $113,100 (For CDOT accounting purposes, the Byways federal funds of $113,100 and local matching
funds of $28,275 will be encumbered for a total encumbrance of $141,375), unless such amount is
increased by an appropriate written modification to this contract executed before any increased cost is
incurred. It is understood and agreed by the parties hereto that the total cost of the Work stated herein is
the best estimate available, based on the project as approved at the time of execution of this contract, and
that such cost may be subject to revisions.
The matching ratio for the federal participating funds for this project is 80% Byway federal funds to 20%
Agency funds, it being understood that such ratio applies only to the $141,375.00 ($113,100 Federal Funds
and $28,275 local Matching Funds) that is eligible for federal participation, it being further understood that
all non - participating (not - allowable) costs are borne by PITKIN COUNTY at 100 %. If the total allowable
(participating) cost of performance of the Work exceeds $141,375.00, and additional federal funds are
made available for the project, PITKIN COUNTY shall pay 20% of all such costs eligible for federal
participation and 100% of all non - allowable costs; if additional federal funds are not made available,
PITKIN COUNTY shall pay all such excess costs. If the total allowable cost of the Work is less than
$141,375.00, then the amounts of Agency and Byway federal funds provided by CDOT will be decreased
in accordance with the funding ratio described herein.
B. Funds
i. Available Funds- Contingency
CDOT is prohibited by law from making commitments beyond the term of the State's current fiscal
year. Therefore, PITKIN COUNTY's compensation beyond the State's current fiscal year is contingent
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upon the continuing availability of State appropriations as provided in the Colorado Special Provisions.
If federal funds are used to fund this Agreement, in whole or in part, CDOT's performance hereunder is
contingent upon the continuing availability of such funds. Payments pursuant to this Agreement shall be
made only from available funds encumbered for this Agreement and CDOT's liability for such
payments shall be limited to the amount remaining of such encumbered funds. If State or federal funds
are not appropriated, or otherwise become unavailable to fund this Agreement, CDOT may terminate
this Agreement immediately, in whole or in part, without further liability in accordance with the
provisions hereof.
ii. Limited Availability of Funds
The amount of federal funds available to pay for the program performed by PITKIN COUNTY in any
one year is limited by the amount of the allocated funds, made available through 23 U.S.C. § 104 (b)(2)
and any amendments thereto; 23 U.S.C. 104 (f) and any amendments thereto.
C. Additional Funds Use
CDOT shall not be obligated to use State funds under this Agreement. Agreement Scenic Byways funds
shall be used only to reimburse PITKIN COUNTY for eligible allowable costs incurred and PITKIN
COUNTY shall be solely responsible for all costs incurred that are either not allowable or which exceed the
funds available in the Agreement as identified herein and/or in the Scope of Work.
D. Matching Funds
PITKIN COUNTY shall provide matching funds as required by the Agreement.
8. BILLING: REIMBURSEMENT AND ALLOWABLE COSTS
i. Certification
Upon signing the Billing Form requesting reimbursement, the designated representative of PITKIN COUNTY
has certified that:
1.) The costs are allowable, and therefore reimburseable; and
2.) The expenditure amount for that time period is correct; and
3.) The agreed upon Work has been performed and/or products have been produced; and
4.) All Requests for Proposals have been forwarded to CDOT for review and comment; and
5.) Reimbursements are being requested in accordance with the terms of this Contract; and
6.) Copies of recorded times of employees (where applicable) are correct; including in -kind and
volunteer services.
ii. Documentation
PITKIN COUNTY shall include documentation of expenses of federal funds for Scenic Byways
Activities.
Such information shall include but not be limited to the items listed in this §8 of this Contract as proof
of documentation. For purposes of this Contract, a copy of each invoice shall be forwarded to
the Division of Transportation Development - Business Office c/o
Business Manager at:
4201 E. Arkansas Ave., Shumate Building, Denver, CO 80222
iii. Reimbursement Method and Time
PITKIN COUNTY shall request reimbursement from CDOT for the eligible allowable cost of funds for
those eligible activities identified in the Scope of Work, and other costs as described in §8 of this Contract,
incurred during the contract fiscal year within the limits of this Contract in compliance with federal and
State law and other applicable regulations. Reimbursement requests shall be submitted by PITKIN
COUNTY to CDOT monthly, and will be reimbursed based on the federal participation rate in §3of this
Contract or §7.
iv. Allowable Costs
Allowable and indirect costs may include but are not limited to those listed in 2 CFR 225, 2 CFR 220, 2
CFR 230, 49 CFR Part 18, or State Fiscal Rule 2 -7: "Official Functions and Training Functions,"
whichever may apply. However, such costs shall be limited to those costs determined by the CDOT as
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necessary to directly carry out the tasks described in the Scope of Work for this Agreement. In
determining the amount of allowable costs, CDOT will exclude:
1.) Any costs incurred by PITKIN COUNTY before the execution of the Contract or Option Letter.
2.) Any costs incurred by PITKIN COUNTY that are not included in the Scope of Work.
3.) Any cost incurred by PITKIN COUNTY after the termination date of this Contract or Amendment.
v. Erroneous Payments
At CDOT's sole discretion, payments made to PITKIN COUNTY in error for any reason or costs incurred
that are later found to be unallowable, including but not limited to overpayments or improper payments, and
unexpended or excess funds received by PITKIN COUNTY, shall be reimbursed by PITKIN COUNTY to
the State or offset against current or future obligations due to the State by PITKIN COUNTY, at the State's
discretion; unless prohibited by federal or State law or regulation. Such funds shall not be paid to any party
other than CDOT.
vi. Reimbursement Waiver
PITKIN COUNTY agrees that reimbursement of any cost under this Agreement does not constitute a
final CDOT decision about the allowability of the costs and does not constitute a waiver of any
violation by PITKIN COUNTY of the terms of this Agreement.
9. REPORTING- NOTIFICATION - PROGRAM MONITORING
Reports, evaluations, and reviews required under this §9 shall be in accordance with the procedures of and
in such form as prescribed by the Program guidance and the State.
A. Final Report
Within 30 days after the end of the Project Period, PITKIN COUNTY will provide to CDOT a final
accomplishment report of the activities performed under this Contract for the completed fiscal year. It
shall include, but not be limited to:
1.) Final accomplishments by activities; and
2.) Status of uncompleted products; and
3.) Accomplishment of performance measures; and
4.) Actual expenditures for the Program Period
B. Reporting Guidance
Reporting made for the purposes of this Agreement and its activities shall be done in accordance with 23
CFR 420.117, 450 and 49 CFR Part 18 and Part19, and any supporting sections or amendments. The
provisions of this paragraph do not constitute a waiver of legal and administrative appeals available to
PITKIN COUNTY or the State.
C. Monitoring
In accordance with 23 CFR Part 420.117, 23 CFR Part 450, and other applicable standards, the State will
monitor all the activities conducted by PITKIN COUNTY pursuant to the terms of this Agreement to
assure that the Work is being performed consistent with supporting federal laws and regulations, as
amended, to enable the preparation and submission of appropriate reports that will contain at a minimum:
1.) Comparison of actual performance with established goals;
2.) Progress in meeting schedules;
3.) Comparison of budgeted (approved) amounts and actual costs incurred;
4.) Cost variances to Budget;
5.) Approved Program revisions; and
6.) Other pertinent supporting data
The provisions of this paragraph do not constitute a waiver of legal and administrative appeals available to
the Agency or CDOT.
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D. Performance, Progress, Personnel, and Funds
In responding to these requirements, CDOT will utilize the following steps and procedures to ensure that
assigned responsibilities are carried out:
1.) Monitoring Documents
CDOT will use the current Scope of Work, and and approved study designs, in reviewing the
progress being made by PITKIN COUNTY to meet the commitments in this Contract. The Scope
of Work must include all activities, deliverables, performance measures, and Budgets committed to
by PITKIN COUNTY,
2.) Monitoring Meetings
Meetings between CDOT and PITKIN COUNTY representatives will be conducted at CDOT's
discretion for the purpose of reviewing progress, resource allocations, and billings.
3.) Progress and Financial Reports
CDOT will prepare and submit progress and financial reports to the appropriate federal agencies.
E. Litigation Reporting
Within 10 days after being served with any pleading in a legal action filed with a court or administrative
agency, related to this Agreement or which may affect PITKIN COUNTY's ability to perform its
obligations hereunder, PITKIN COUNTY shall notify CDOT of such action and deliver copies of such
pleadings to CDOT's principal representative as identified herein. If CDOT's principal representative is not
then serving, such notice and copies shall be delivered to the Executive Director of CDOT.
F. Noncompliance
Any product that PITKIN COUNTY has committed to in the Scope of Work not produced and justification
not provided in a timely manner in accordance with this §9, and having been determined by the State the
Agency has materially failed to comply with the terms and conditions of this Agreement, may result in the
delay of payment of funds and/or termination as provided under this Agreement. The following steps, in
accordance with 49 CFR 18.43, will be implemented by CDOT:
1.) CDOT representative will meet with PITKIN COUNTY representative to discuss
performance.
2.) The CDOT representative will report the progress to the CDOT Division of Transportation
Development Director.
3.) The Director will issue a decision as to whether performance is satisfactory or unsatisfactory. If
performance was determined to have been unsatisfactory, CDOT shall determine if a reduction in
allocation is appropriate. PITKIN COUNTY will be notified of any decisions made by CDOT.
G. Subcontracts
Copies of any and all subcontracts entered into by PITKIN COUNTY to perform its obligations hereunder
shall be submitted to CDOT or its principal representative upon request by CDOT. Any and all
subcontracts entered into by PITKIN COUNTY related to its performance hereunder shall comply with all
applicable federal and state laws and shall provide that such subcontracts be governed by the laws of the
State of Colorado. PITKIN COUNTY is responsible for monitoring the Work activities of Subcontractors
and Consultants.
10. RECORDS
PITKIN COUNTY shall make, keep, maintain and allow inspection and monitoring of the following
records:
A. Maintenance
PITKIN COUNTY and any Consultants shall maintain all books, records, and other documentation
pertaining to authorized Scope of Work activities and to completely substantiate all costs incurred and
billed to CDOT during the current Program Period and for a period of three (3) years from the date of
closure of the Project under the terms of this Contract. These records shall be made available for inspection
and audit to CDOT, FHWA, or the Comptroller General of the United States, and copies thereof shall be
furnished, if requested. PITKIN COUNTY shall include this record keeping/audit requirement in any
Contract with any Consultant employed to perform Scope activities by expressly requiring the Consultant
to comply with this requirement.
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B. Inspection
The State and FHWA are specifically authorized to review and inspect at all reasonable times all such
records and all technical and financial aspects of the activities described in the Scope of Work. FHWA
will arrange such review and inspections through CDOT. The State reserves the right to inspect the Work
at all reasonable times and places during the term of this Agreement, including any extension period.
C. A -133
In accordance with the provisions of OMB Circular No. A -133: "Audits of States, Local Governments, and
Nonprofit Organizations," all nonfederal entities including state and local government and non - profit
organizations, receiving more than $500,000 from all federal financial assistance funding sources, shall
comply with the audit requirements of A -133 (see also 49 CFR 18.26). Compliance with A -133 is required
in the following manner:
a) If the Sub - Grantee expends less than $500,000 in federal funds (all federal sources, not just
Highway funds) in its fiscal year then this requirement does not apply.
b) If the Sub - Grantee expends more than $500,000 in federal funds, but only received federal
Highway funds (Catalog of Federal Domestic Assistance, CFDA 20.205) then a program
specific audit shall be performed. This audit will examine the "financial" procedures and
processes for this program area.
c) If the Sub - Grantee expends more than $500,000 in federal funds, and the federal funds are
from multiple sources (FTA, HUD, NPS, etc.) then the Single Audit Act applies, which is an
audit on the entire organization/entity.
d) Single Audit can only be conducted by an independent auditor in accordance with generally
accepted government auditing standards covering financial audits (49 CFR 18.26).
e) An audit is an allowable direct or indirect cost..
D. Final Audit Report
If an audit is performed on PITKIN COUNTY' s records for any fiscal year covering a portion of the term
of this Agreement, PITKIN COUNTY shall submit a copy of the final audit report to CDOT or its principal
representative at the address specified herein.
11. CONFIDENTIAL INFORMATION -STATE RECORDS
PITKIN COUNTY shall comply with the provisions on this §11 if it becomes privy to confidential
information in connection with its performance hereunder. Confidential information includes, but is not
necessarily limited to, any state records, personnel records, and information concerning individuals. Such
information shall not include information required to be disclosed pursuant to the Colorado Open Records
Act, CRS §24 -72 -101, et seq.
A. Confidentiality
PITKIN COUNTY shall keep all State records and information confidential at all times and comply with
all laws and regulations concerning confidentiality of information. Any request or demand by a third party
for State records and information in the possession of PITKIN COUNTY shall be immediately forwarded
to CDOT's principal representative.
B. Notification
PITKIN COUNTY shall notify its agent, employees, Subcontractors and assigns who may come into
contact with State records and confidential information that each is subject to the confidentiality
requirements set forth herein, and shall provide each with a written explanation of such requirements before
they are permitted to access such records and information.
C. Use, Security, and Retention
Confidential information of any kind shall not be distributed or sold to any third party or used by PITKIN
COUNTY or its agents in any way, except as authorized by this Agreement or approved in writing by
CDOT. PITKIN COUNTY shall provide and maintain a secure environment that ensures confidentiality of
all State records and other confidential information wherever located. Confidential information shall not be
retained in any files or otherwise by PITKIN COUNTY or its agents, except as permitted in this Agreement
or approved in writing by CDOT.
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D. Disclosure - Liability
Disclosure of State records or other confidential information for any reason PITKIN COUNTY may be
cause for legal action by third parties against PITKIN COUNTY, CDOT, or their respective agents, and
defense of any such action shall be PITKIN COUNTY's sole responsibility.
12. CONFLICTS OF INTEREST
PITKIN COUNTY shall not engage in any business or personal activities or practices or maintain any
relationships which conflict in any way with the full performance of PITKIN COUNTY's obligations
hereunder. PITKIN COUNTY acknowledges that with respect to this Agreement, even the appearance of a
conflict of interest is harmful to CDOT's and the State of Colorado's interests. Absent CDOT's prior written
approval, PITKIN COUNTY shall refrain from any practices, activities or relationships that reasonably
appear to be in conflict with the full performance of PITKIN COUNTY' s obligations to the State hereunder.
PITKIN COUNTY shall comply with the provisions of CRS §§18-8-308 and 24 -18- 101 -109. If a conflict or
appearance exists, or if PITKIN COUNTY is uncertain whether a conflict or the appearance of a conflict of
interest exists, PITKIN COUNTY shall submit to CDOT a disclosure statement setting forth the relevant
details for CDOT 's direction in regard to the apparent conflict constitutes a breach of this Agreement.
13. BREACH
In addition to any breaches specified in other sections of this Agreement, the failure of either Party to
perform any of its obligations hereunder entirely, partially, or in satisfactory manner, including, but not
limited to, performing them in a timely manner, constitutes a breach.
14. REMEDIES
If either Party is in breach of this Agreement or any other disputes arise between the Parties in connection
herewith, the Parties shall attempt resolve them at the divisional level. If this fails, the matter shall be
referred to superior departmental management staff designated by each Party. If this fails, the executive
director of each Party shall meet and attempt resolution. If this fails, the matter shall be submitted in writing
by both Parties to the State Controller. The State Controller's decisions regarding and resolution of the
matter shall be final.
A. Termination
1.) When the public interests of the State so require, the State may terminate this Contract in whole or
in part. The State shall give written notice of termination to PITKIN COUNTY specifying the
termination of all or a portion of this contract and the effective date of such. Exercise by the State
of this termination for public interests provision shall not be deemed a breach of contract by the
State. Upon receipt of written notice, PITKIN COUNTY shall incur no further obligations in
connection with the terminated Work and, on the date set in the notice of termination, PITKIN
COUNTY shall stop Work to the extent specified. PITKIN COUNTY also shall terminate
outstanding orders and subcontracts as they relate to the terminated Work. All finished or
unfinished documents, data, studies, research, surveys, drawings, maps, models, photographs, and
reports or other materials prepared by PITKIN COUNTY under this Contract shall, at the option of
the State, be delivered by PITKIN COUNTY to the State and shall become the State's property.
The State may direct PITKIN COUNTY to assign PITKIN COUNTY's right, title, and interest
under terminated orders or subcontracts to the State. PITKIN COUNTY shall complete and deliver
to the State the Work not terminated by the notice of termination and may incur obligations as are
necessary to do so within the contract terms.
2.) If this Contract is terminated by the State as provided herein, PITKIN COUNTY shall be paid an
amount which bears the same ratio to the total compensation as the Services satisfactorily
performed or the Products or deliverables satisfactorily delivered or installed bear to the total
Services, Products or deliverables covered by this Contract, less payments of compensation
previously made. In addition, for Contracts that are less than 60% completed, the State may
reimburse PITKIN COUNTY for a portion of actual out -of- pocket expenses (not otherwise
reimbursed under this Contract) incurred by PITKIN COUNTY during the Contract period which
are directly attributable to the uncompleted portion of PITKIN COUNTY's obligations covered by
this Contract. In no event shall reimbursement under this clause exceed the Contract amount. If
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•
this Contract is terminated for cause, or due to the fault of PITKIN COUNTY, the Termination for
Cause or Default provision shall apply.
3.) Termination for Default/Cause
1. If, through any cause, the Agency shall fail to fulfill, its obligations under this Contract, in a
timely and proper manner, or if the Agency shall violate any of the covenants, agreements, or
stipulations of this Contract, CDOT shall thereupon have the right to terminate this Contract
for cause by giving written notice to the Agency of its intent to terminate and providing no less
than ten (10) days opportunity to cure the default or show cause why termination is otherwise
not appropriate. In the event of termination, all finished or unfinished documents, data, studies,
surveys, drawings, maps, models, photographs, and reports or other material prepared by the
Agency under this contract shall, at the option of CDOT, become its property, and the Agency
shall be entitled to receive just and equitable compensation for any Services and Goods
delivered and accepted. The Agency shall be obligated to return any payment advanced under
the provisions of this Contract. This provision shall in no way limit other remedies available to
CDOT in this Contract, or remedies otherwise available at law.
ii. Notwithstanding the above, the Agency shall not be relieved of liability to CDOT for any
damages sustained by CDOT by virtue of any breach of this Contract by the Agency, and
CDOT may withhold any payment to the Agency for the purposes of mitigating its damages
until such time as the exact amount of damages due to CDOT from the Agency is determined.
ill. If after such termination it is determined, for any reason, that the Agency was not in default, or
that the Agency's action/inaction was excusable, such termination shall be treated as a
termination for convenience, and the rights and obligations of the Parties shall be the same as if
this Contract had been terminated for convenience, as described herein.
15. NOTICE and REPRESENTATIVES
Each individual identified below is the principal representative of the designating Party. All notices required
to be given hereunder shall be hand delivered with receipt required or sent by certified or registered mail to
such Party's principal representative at the address set forth below. In addition to, but not in lieu of a hard -
copy notice, notice also may be sent by e-mail to the e-mail addresses, if any, set forth below. Either Party
may from time to time designate by written notice substitute addresses or persons to whom such notices
shall be sent. Unless otherwise provided herein, all notices shall be effective upon receipt.
i. CDOT:
Lenore Bates
DTD/I'ransportation Planning
4201 E. Arkansas Ave.
Shumate Building
80222
i. PITKIN COUNTY:
Crystal Yates -White
Pitkin County Land Manager
76 Service Center Road
Aspen, CO 81611
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16. STATEWIDE CONTRACT MANAGEMENT SYSTEM
If the maximum amount payable to PITKIN COUNTY under this Agreement is $100,000 or greater, either
on the Effective Date or at anytime thereafter, this §16 applies.
PITKIN COUNTY agrees to be governed, and to abide, by the provisions of CRS §24- 102 -205, §24 -102-
206, §24- 103 -601, §24- 103.5 -101 and §24 -105 -102 concerning the monitoring of vendor performance on
state contracts and inclusion of contract performance information in a statewide contract management
system.
PITKIN COUNTY's performance shall be subject to Evaluation and Review in accordance with the terms
and conditions of this Contract, State law, including CRS §24 -103.5 -101, and State Fiscal Rules, Policies
and Guidance. Evaluation and Review of PITKIN COUNTY' s performance shall be part of the normal
contract administration process and PITKIN COUNTY' s performance will be systematically recorded in the
statewide Contract Management System. Areas of Evaluation and Review shall include, but shall not be
limited to quality, cost and timeliness. Collection of information relevant to the performance of PITKIN
COUNTY's obligations under this Contract shall be determined by the specific requirements of such
obligations and shall include factors tailored to match the requirements of PITKIN COUNTY's obligations.
Such performance information shall be entered into the statewide Contract Management System at intervals
established herein and a final Evaluation, Review and Rating shall be rendered within 30 days of the end of
the Contract term. PITKIN COUNTY shall be notified following each performance Evaluation and Review,
and shall address or correct any identified problem in a timely manner and maintain work progress.
Should the final performance Evaluation and Review determine that PITKIN COUNTY demonstrated a
gross failure to meet the performance measures established hereunder, the Executive Director of the
Colorado Department of Personnel and Administration (Executive Director), upon request by CDOT, and
showing of good cause, may debar PITKIN COUNTY and prohibit PITKIN COUNTY from bidding on
future contracts. PITKIN COUNTY may contest the final Evaluation, Review and Rating by: (a) filing
rebuttal statements, which may result in either removal or correction of the evaluation (CRS §24 -105-
102(6)), or (b) under CRS §24- 105- 102(6), exercising the debarment protest and appeal rights provided in
CRS § §24- 109 -106, 107, 201 or 202, which may result in the reversal of the debarment and reinstatement of
PITKIN COUNTY, by the Executive Director, upon showing of good cause.
17. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE
PITKIN COUNTY agrees to provide to the FHWA and CDOT a royalty -free, non - exclusive and irrevocable
license to reproduce, publish, or otherwise use and to authorize others to use, the Work Product described
herein, for Federal Government and Department purposes; Work Product includes but is not limited to the
copyright of any books, publications, or other copyrightable materials (Data, studies, surveys, drawings,
maps, models, photographs, reports) developed in the course of the funded project. 23 CFR 420.121.
Whenever possible, published material shall acknowledge the financial participation of CDOT and/or the
FHWA and other agencies contributing funding to the Work Product. Any published material
acknowledging the contribution of the FHWA shall include the federal disclaimer statement: "FUNDED BY
THE FHWA ". Published materials include any non - internal documents, reports, maps, photographs,
computer software, or like materials that are intended to be viewed by those outside of FHWA, CDOT, and
PITKIN COUNTY.
Patents: In addition to the standard patent rights clauses of 37 C.F.R. §401 et. al, and other applicable laws
and regulations, CDOT, Agency and either party's subrecipients are subject to the provisions of 37 CFR part
401, governing patents and inventions whereby "The subgrantee or PITKIN COUNTY will retain all rights
provided for the State in this clause, and the State will not, as part of the consideration for awarding the
subgrant or contract, obtain rights in the subgrantee's or PITKIN COUNTY's subject inventions."
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18. DISADVANTAGED BUSINESS ENTERPRISE (DBE)
The Agency will comply with all requirements of Exhibit C and the Agency (or Sub Grantee) Contract
Administration Checklist (if used) regarding DBE requirements for the Work, except that if the Sub Grantee
desires to use its own DBE program to implement and administer the DBE provisions of 49 CFR Part 26
under this Contract, it must submit a copy of its program's requirements to the State for review and approval
before the execution of this Contract. If the Sub Grantee uses its program for this Contract, the Sub Grantee
shall be solely responsible to defend that DBE program and its use of that program against all legal and
other challenges or complaints, at its sole cost and expense. Such responsibility includes, without limitation,
determinations concerning DBE eligibility requirements and certification, adequate legal and factual bases
for DBE goals and good faith efforts. State approval (if provided) of the Sub Grantee's DBE program does
not waive or modify the sole responsibility of the Sub Grantee for its use as described above.
19. GENERAL PROVISIONS
A. Assignment
PITKIN COUNTY's rights and obligations hereunder are personal and may not be transferred, assigned or
subcontracted without the prior, written consent of CDOT. Any attempt at assignment, transfer,
subcontracting without such consent shall be void. All assignments, subcontracts, or Subcontractors
approved by PITKIN COUNTY or CDOT are subject to all of the provisions hereof. PITKIN COUNTY
shall be solely responsible for all aspects of subcontracting arrangements and performance.
B. Binding Effect
Except as otherwise provided in this Agreement, all provisions herein contained, including the benefits and
burdens, shall extend to and be binding upon the Parties' respective heirs, legal representatives, successors,
and assigns.
C. Captions
The captions and headings in this Agreement are for convenience of reference only, and shall not be used to
interpret, define, or limit its provisions.
D. Counterparts
This Agreement may be executed in multiple identical original counterparts, all of which shall constitute
one agreement.
E. Entire Understanding
This Agreement represents the complete integration of all understandings between the Parties and all prior
representations and understandings, oral or written, are merged herein. Prior or contemporaneous additions,
deletions, or other changes hereto shall not have any force or affect whatsoever, unless embodied herein.
F. Modification
i. By the Parties
Except as specifically provided in this Agreement, modifications of this Agreement shall not be
effective unless agreed to in writing by both Parties in an amendment to this Agreement, properly
executed and approved in accordance with applicable Colorado State law, State Fiscal Rules, and Office
of the State Controller Policies, including, but not limited to, the policy entitled MODIFICATIONS OF
CONTRACTS - TOOLS AND FORMS.
ii. By Operation of Law
This Agreement is subject to such modifications as may be required by changes in federal or Colorado
State law, or their implementing regulations. Any such required modification automatically shall be
incorporated into and be part of this Agreement on the effective date of such change, as if fully set forth
herein.
G. Order of Precedence
The provisions of this Agreement shall govern the relationship of the State and PITKIN COUNTY. In the
event of conflicts or inconsistencies between this Agreement and its exhibits and attachments specifically
including, but not limited to, those provided by PITKIN COUNTY, such conflicts or inconsistencies shall
be resolved by reference to the documents in the following order of priority:
i. Federal Laws and regulations,
ii. Colorado Special Provisions,
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Hi. The provisions of main body of this Agreement,
iv. Exhibit A (Scope of Work),
v. Exhibit B (Option Letter)
vi. Other exhibits in descending order of their attachment.
H. Severability
Provided this Agreement can be executed and performance of the obligations of the Parties accomplished
within its intent, the provisions hereof are severable and any provision that is declared invalid or becomes
inoperable for any reason shall not affect the validity of any other provision hereof, provided that the
Parties can continue to perform their obligations under this Agreement in accordance with its intent.
I. Survival of Certain Agreement Terms
Notwithstanding anything herein to the contrary, provisions of this Agreement requiring continued
performance, compliance, or effect after termination hereof, shall survive such termination and shall be
enforceable by the State if PITKIN COUNTY fails to perform or comply as required.
J. Third Party Beneficiaries
Enforcement of this Agreement and all rights and obligations hereunder are reserved solely to the Parties
and not to any third party. Any Services or benefits which third parties receive as a result of this Agreement
are incidental to the Agreement, and do not create any rights for such third parties.
K. Waiver
Waiver of any breach of a term, provision, or requirement of this Agreement or any right or remedy
hereunder, whether explicitly or by lack of enforcement, shall not be construed or deemed as a waiver of
any subsequent breach of such term, provision or requirement, or of any other term, provision, or
requirement.
L. Indemnification — General
If Local Agency is not a "public entity" within the meaning of the Colorado Governmental Immunity Act,
CRS §24 -10 -101, et seq., PITKIN COUNTY shall indemnify, save, and hold harmless the State, its
employees and agents, against any and all claims, damages, liability and court awards including costs,
expenses, and attorney fees and related costs, incurred as a result of any act or omission by Local Agency,
or its employees, agents, Subcontractors or assignees pursuant to the terms of this Agreement. This clause
is not applicable to a PITKIN COUNTY that is a "public entity" within the meaning of the Colorado
Governmental Immunity Act, CRS §24 -10 -101, et seq.
M. Jurisdiction and Venue
All suits, actions, or proceedings related to this Agreement shall be held in the State of Colorado and
exclusive venue shall be in the City and County of Denver.
N. Grant Assurances
i. Since this grant contract involves the expenditure of federal funds, PITKIN COUNTY shall at all
times during the execution of this contract strictly adhere to and comply with all applicable
federal and Colorado State laws, and their implementing regulations, as they currently exist and
may hereafter be amended, which laws and regulations are incorporated herein by this reference
as terms and conditions of this contract. PITKIN COUNTY shall also require compliance with
such laws and regulations by Subcontractors under subcontracts permitted under this contract.
Federal laws and regulations that may be applicable include The Uniform Administrative
Requirements for Grants and Cooperative Contracts to State and Local Governments" (Common
Rule), at 49 Code of Federal Regulations, Part 18, or the "Uniform Administrative Requirements
for Grants and Contracts with Non - Profit Organizations ", at 49 Code of Federal Regulations,
Part 19, as applicable. The requirements of 49 CFR Part 18, or Part 19, include, without
limitation:
1.) PITKIN COUNTY shall follow applicable procurement procedures, as required by section 18.36(d) or
19.40
2.) PITKIN COUNTY 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 or 19.25;
3.) PITKIN COUNTY shall comply with section 18.37 or 19.5 concerning any subgrants;
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4.) to expedite CDOT approval, PITKIN COUNTY's attorney, or other authorized representative, shall also
submit a letter to CDOT certifying PITKIN COUNTY compliance with section 18.30 or section 19.25
change order procedures, and with 18.36(d) or section 19.40 procurement procedures, and with section
18.37 or section 19.5 subgrant procedures, as applicable;
5.) PITKIN COUNTY shall incorporate the specific Contract provisions described in section 18.360) or
section 19.48 (which are also deemed incorporated herein) into any subcontract(s) for such Services as
terms and conditions of those subcontracts.
H. Title 23, United States Code, Part 112, and Title 23, Code of Federal Regulations, Part 172, if the
Contract Work includes professional engineering or architectural Services.
Hi. Title 23, United States Code, Part 112, and Title 23, Code of Federal Regulations, Parts 633 and
635, if the Contract Work includes construction Services.
iv. Provided, however, that to the extent that other applicable federal requirements (including the
provisions of Title 23) are more specific than provisions of Title 49, Part 18 or 19, those
requirements shall supersede such Part 18 or 19 provisions.
v. Federal laws and regulations incorporated into this contract include, without limitation:
a) Age Discrimination Act of 1975 42 U.S.C. Sections 6101, et seq.
b) Age Discrimination in Employment Act of 1967 29 U.S.C. 621 -634
c) Americans with Disabilities Act of 1990 (ADA) 42 U.S.C. 12101, et Seq.
d) Equal Pay Act of 1963 29 U.S.C. 206(d)
e) Immigration Reform and Control Act of 1986 8 U.S.C. 1324(b)
f) Section 504 of the Rehabilitation Act of 1973 29 U.S.C. 794
g) Title VI of the Civil Rights Act of 1964 42 U.S.C. 2000(d)
h) Title VII of the Civil Rights Act of 1964 42 U.S.C. 2000(e)
i) Title IX of the Education Amendment of 1972 20 U.S.C. 1681, et seq.
j) Section 24 -34 -302, et seq., Colorado Revised Statutes, as amended.
vi. PITKIN COUNTY shall also comply with any and all laws and regulations prohibiting
discrimination in the performance of PITKIN COUNTY' s obligations under this Contract. In
consideration of and for the purpose of obtaining any and all federal and/or Colorado State
financial assistance, PITKIN COUNTY makes the following assurances, upon which CDOT
relies:
a) PITKIN COUNTY shall not discriminate against any person on the basis of race, color,
national origin, age, sex, religion and handicap, including Acquired Immune Deficiency
Syndrome (AIDS) or AIDS - related conditions, in performance of Work under this Contract.
b) At all times during the performance of this contract, no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in, or denied benefits of the
service, programs, or activities performed by PITKIN COUNTY, or be subjected to any
discrimination by PITKIN COUNTY.
vii. PITKIN COUNTY shall take all necessary affirmative steps, as required by 45 C.F.R. 92.36(e),
Colorado Executive Order, and Procurement Rules to assure that small and minority business
and women's business enterprises are used, when possible, as sources of supplies, equipment,
construction, and Services purchased under this contract.
viii. For the construction of a scenic - byways project that is located within the highway right -
of -way, the Agency shall comply with the requirements outlined under 23 CFR part
635A and the attached FHWA Form #1273 "Required Contract Provisions" (Exhibit C)
(as required by 23 CFR 633.102), as applicable.
ix. For the construction of a scenic - byways project that is located adjacent to or outside the
highway right -of -way, the Agency may comply with the procedures of the "Common
Rule ", 49 CFR Part 18, and allow the state and local agencies to use the state/local
contracting and/or procurement processes, rather than comply with the process contained
in 23 CFR part 635A. A listing of some of the federal and state laws that may be
applicable, depending on the Sub - Grantee /Agency work responsibilities under this
Contract, are described in Exhibit 11
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Page 15 of 34
20. SPECIAL PROVISIONS
The Special Provisions apply to all Agreements except where noted in italics,
1. CONTROLLER'S APPROVAL. CRS §24 -30 -202 (1).
This Agreement shall not be deemed valid until it has been approved by the Colorado Stare Controller or
designee.
2. FUND AVAILABILITY. CRS §24-30- 202(5.5).
Financial obligations of the State payable after the current fiscal year are contingent upon funds for that
purpose being appropriated, budgeted, and otherwise made available.
3. GOVERNMENTAL IMMUNITY.
No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied,
of any of the immunities, rights, benefits, protections, or other provisions, of the Colorado Governmental
Immunity Act, CRS §24 -10 -101 et seq., or the Federal Tort Claims Act, 28 U.S.C. § §1346(b) and 2671
et seq., as applicable now or hereafter amended.
4. INDEPENDENT CONTRACTOR
The Local Agency shall perform its duties hereunder as an independent contractor and not as an
employee. Neither The Local Agency nor any agent or employee of The Local Agency shall be deemed
to be an agent or employee of the State. The Local Agency and its employees and agents are not entitled
to unemployment insurance or workers compensation benefits through the State and the State shall not
pay for or otherwise provide such coverage for The Local Agency or any of its agents or employees.
Unemployment insurance benefits shall be available to The Local Agency and its employees and agents
only if such coverage is made available by The Local Agency or a third party. The Local Agency shall
pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant
to this Agreement. The Local Agency shall not have authorization, express or implied, to bind the State
to any Agreement, liability or understanding, except as expressly set forth herein. The Local Agency
shall (a) provide and keep in force workers' compensation and unemployment compensation insurance in
the amounts required by law, (b) provide proof thereof when requested by the State, and (c) be solely
responsible for its acts and those of its employees and agents.
5. COMPLIANCE WITH LAW.
The Local Agency shall strictly comply with all applicable federal and State laws, rules, and regulations
in effect or hereafter established, including, without limitation, laws applicable to discrimination and
unfair employment practices.
6. CHOICE OF LAW.
Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation,
execution, and enforcement of this Agreement. Any provision included or incorporated herein by
reference which conflicts with said laws, rules, and regulations shall be null and void. Any provision
incorporated herein by reference which purports to negate this or any other Special Provision in whole or
in part shall not 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 shall not
invalidate the remainder of this Agreement, to the extent capable of execution.
7. BINDING ARBITRATION PROHIBITED.
The State of Colorado does not agree to binding arbitration by any extra - judicial body or person. Any
provision to the contrary in this contact or incorporated herein by reference shall be null and void.
8. SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00.
State or other public funds payable under this Agreement shall not be used for the acquisition, operation,
or maintenance of computer software in violation of federal copyright laws or applicable licensing
restrictions. The Local Agency hereby certifies and warrants that, during the term of this Agreement and
any extensions, The Local Agency has and shall maintain in place appropriate systems and controls to
prevent such improper use of public funds. If the State determines that The Local Agency is in violation
of this provision, the State may exercise any remedy available at law or in equity or under this
Agreement, including, without limitation, immediate termination of this Agreement and any remedy
consistent with federal copyright laws or applicable licensing restrictions.
9. EMPLOYEE FINANCIAL INTEREST. CRS § §24 -18 -201 and 24 -50 -507.
The signatories aver that to their knowledge, no employee of the State has any personal or beneficial
interest whatsoever in the service or property described in this Agreement. The Local Agency has no
interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree
Page 16 of 34
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with the performance of the Local Agency's Services and the Local Agency shall not employ any person
having such known interests.
10. VENDOR OFFSET. CRS § §24 -30 -202 (1) and 24- 30- 202.4.
[Not Applicable to intergovernmental agreements] Subject to CRS §24 -30 -202.4 (3.5), the State
Controller may withhold payment under the State's vendor offset intercept system for debts owed to
State agencies for: (a) unpaid child support debts or child support arrearages; (b) unpaid balances of tax,
accrued interest, or other charges specified in CRS §39 -21 -101, et seq.; (c) unpaid loans due to the
Student Loan Division of the Department of Higher Education; (d) amounts required to be paid to the
Unemployment Compensation Fund; and (e) other unpaid debts owing to the State as a result of final
agency determination or judicial action.
11. PUBLIC CONTRACTS FOR SERVICES. CRS §8- 17.5 -101.
[Not Applicable to Agreements relating to the offer, issuance, or sale of securities, investment advisory
services or fund management services, sponsored projects, intergovernmental Agreements, or
information technology services or products and services] The Local Agency certifies, warrants, and
agrees that it does not knowingly employ or contract with an illegal alien who shall perform work under
this Agreement and shall confirm the employment eligibility of all employees who are newly hired for
employment in the United States to perform work under this Agreement, through participation in the E-
Verify Program or the State program established pursuant to CRS §8- 17.5- 102(5)(c), The Local Agency
shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or
enter into a contract with a subcontractor that fails to certify to The Local Agency that the subcontractor
shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. The
Local Agency (a) shall not use E- Verify Program or State program procedures to undertake pre-
employment screening of job applicants while this Agreement is being performed, (b) shall notify the
subcontractor and the contracting State agency within three days if The Local Agency has actual
knowledge that a subcontractor is employing or contracting with an illegal alien for work under this
Agreement, (c) shall terminate the subcontract if a subcontractor does not stop employing or contracting
with the illegal alien within three days of receiving the notice, and (d) shall comply with reasonable
requests made in the course of an investigation, undertaken pursuant to CRS §8- 17.5- 102(5), by the
Colorado Department of Labor and Employment. If The Local Agency participates in the State program,
The Local Agency shall deliver to the contracting State agency, Institution of Higher Education or
political subdivision, a written, notarized affirmation, affirming that The Local Agency has examined the
legal work status of such employee, and shall comply with all of the other requirements of the State
program. If The Local Agency fails to comply with any requirement of this provision or CRS §8 -17.5-
101 et seq., the contracting State agency, institution of higher education or political subdivision may
terminate this Agreement for breach and, if so terminated, The Local Agency shall be liable for damages.
12. PUBLIC CONTRACTS WITH NATURAL PERSONS. CRS §24- 76.5 -101.
The Local Agency, if a natural person eighteen (18) years of age or older, hereby swears and affirms
under penalty of perjury that he or she (a) is a citizen or otherwise lawfully present in the United States
pursuant to federal law, (b) shall comply with the provisions of CRS §24- 76.5 -101 et seq., and (c) has
produced one form of identification required by CRS §24- 76.5 -103 prior to the effective date of this
Agreement.
SPs Effective 1/1/09
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Page 17 of 34
•
•
21. SIGNATURE PAGE
Contract Routing Number CMS: 11- HTD- 22731/SAP_PO#:291000917
THE PARTIES HERETO HAVE EXECUTED THIS INTERAGENCY AGREEMENT
* Persons signing for The Local Agency hereby swear and affirm that they are authorized to act on The Local Agency's behalf
and acknowledge that the State is relying on their representations to that effect.
THE LOCAL AGENCY STATE OF COLORADO
PITKIN COU TY
By: 0441.12 P l.t 4-(P Bill Ritter, Jr. GOVERNOR
N e of Auth zed Individual Colorado Department of Transportation
Russell George, Executive Director
Title: / p nct_iAgrt ' / ./
Official Title of Auth � I J ndividual B '
/Date: Viit/
��
Date: { /1' 1 I n
2nd The Local Agency Signature if Needed LEGAL REVIEW
By: Joh W. Suthers, Attorney General
Name of Authorized Individual
E- ge
Title: By.
Signature - A sistant Attorney Gen
Official Title of Authorized Individual
Date: 9 - oN/ — 16
*Signature off/
Date:
ALL CONTRACTS REQUIRE APPROVAL BY THE STATE CONTROLLER
CRS $24- 30.202 requires the State Controller to approve all State Agreements. This Agreement is not valid until sinned and
dated below by the State Controller or delegate. The Local Agency is not authorized to begin performance until such time. If
The Local Agency begins performing prior thereto. the State of Colorado is not obligated to pay The Local Agency for such
performance or for any goods and/or services provided hereunder.
} TA E CONTROL , r. R
a/ J McDermott, g ' • ^ By:
Controller- • l er ' ado Dent of Transporation
Date: j4.27
Page 18 of 34
EXHIBIT A -SCOPE OF WORK
PITKIN COUNTY -COKE OVEN PROJECT
The overall project consists of the stabilization and restoration of 49 -55 (depending on bids) historic coke ovens
constructed in the early part of the 20 century. The ovens are constructed of fire brick and stone masonry. They are
deteriorating due to weather exposure, plant growth and vandalism. The extent of deterioration and damage varies
significantly among the ovens, necessitating different treatment methods. The four primary methods are: Restoration,
Type A Stabilization, Type B Stabilization, and Limited Work. (for detailed descriptions and site plans indicating
each oven, see JVA, Incorporated drawings and specifications).
Restoration: Complete restoration of three ovens using materials and construction techniques matching
historic.
Restoration Scope of Work includes 3 Ovens:
• All the work for a Type A Stabilized Oven
• Reconstruction of the unloading tunnel
• Reconstruction of the full height stone retaining wall
• Fabrication of non - standard tunnel arch and retaining wall arch shapes
• Fabrication of steel door frames
It is worth noting that the fabrication work will be the most time consuming in terms of lead times to reproduce
necessary elements and time required to perform the extensive reconstruction. There are no existing ovens that
retain the unloading tunnel or the full height retaining wall which characterized the ovens. The reconstructed
ovens will be an important component used to educate visitors about the ovens original appearance and
function.
Type A Stabilization: Ovens in the best condition. Most of oven entrance crown still intact. Stabilization to
include rebuilding of the crown arch, tunnel opening jambs, and trunnel.
Type A Scope of Work includes 27 Ovens in Base Scope and 5 in one Alternate:
• Removal of encroaching vegetation from in, atop, and around ovens.
• Remove soil and materials from inside the ovens
• Remove damaged or loose masonry that cannot be stabilized
• Reproduce and install non - standard masonry shapes
• Rebuild a portion of the stone retaining wall
• Repair /reconstruct the crown, crown arch, trunnel, liner wall, and tunnel opening jambs to match
historical dimensions;
• Clean, repair, and point masonry
• Regrade, backfill, and revegetate to stabilize slope and improve drainage.
Type B Stabilization: Ovens in poor condition. Significant portions of oven crown missing. Stabilization
primarily consists of building out the existing crown to a stable arch configuration (but not necessarily full
reconstruction of the crown arch).
Type B Scope of Work will include 7 ovens located on the East side of the front row:
• Removal of encroaching vegetation from in, atop, and around ovens.
• Remove soil and materials from inside the ovens
• Remove damaged or loose masonry that cannot be stabilized
• Reproduce non - standard masonry shapes and steel fabrications
• Rebuild a portion of the stone retaining wall
• Repair /rebuild liner wall as required to stabilize exposed edge.
• Build out crown to a stable arch configuration centered about the existing opening and oven centerline
in the plane of the crown.
• Repair or (where necessary) reconstruct trunnel.
• Clean, repair, and point masonry
• Regrade, backfill, and revegetate to stabilize slope and improve drainage.
Page 19 of 34
Limited Work: A number of ovens are collapsed or otherwise compromised and will be abandoned in place.
Some work at these ovens is necessary to stabilize or remove dangerous elements and to blend the retaining
wall and grading work in at adjacent ovens.
All of the existing ovens cannot be stabilized with current funding unless bids come in lower than expected or
ARRA funding is significantly more than the $200,000 assumed. Stabilization of the remaining ovens and
development of the site as a park is anticipated as funding becomes available.
This Project is funded from four sources, with a total budget of $864,315, as follows:
• Scenic Byways grant ($113,100)
• Applied only to Restoration Work
• Transportation Enhancement ($413,000)
• Applied to Stabilization and Limited Work
• American Recovery and Reinvestment Act (ARRA) ($143,089)
• Applied to Stabilization and Limited Work
• Pitkin County Matching funds ($195,126 cash; $3,700 in kind)
• Scenic Byways match ($28,700 total)
• $25,000 cash match (for Restoration Construction Administration)
• $3,700 in kind
• Transportation Enhancement match: $103,250 (cash only)
• Additional Match for Construction: $20,382
• Additional Match for Construction Administration/Engineering: $46,494
In order to utilize ARRA funds, this project must go out to bid in September 2010 at the latest.
The bulk of construction is anticipated to take place in Spring and Summer of 2011, but some front -end site work and
materials acquisition will occur before the end of 2010 to lock in this year's costs.
Cost estimates were developed by JVA Inc., who engineered the project. We have included one alternate to cover the
possibility of bids lower than expected. In the best case scenario, we hope to take advantage of the favorable bidding
climate that exists this year along with the efficiency of doing more ovens at one time to stabilize six additional ovens
( "Alternate #1 "). A summary of these estimates for the overall project is enclosed with this letter.
To reiterate: Scenic Byways funds and associated local match will only be applied to the Restoration portion of
this project. This includes both Construction and Administrative costs associated with Restoration. Bidders will be
required to complete a separate Bid Tab form for Restoration Construction costs only. Construction Administration for
Restoration will be provided by JVA, Inc., per CDOT approval and waiver of Policy Memo 23 grant for this project (see
enclosed documentation).
The Restoration Project Budget associated with Scenic Byways is inserted below. Any additional restoration costs
beyond this budget will be paid for by local overmatch.
Page 20 of 34
SCENIC BYWAYS GRANT PROJECT BUDGET: RESTORATION OF 3 COKE OVENS
TOTAL Grant Match
Concrete 1,043.00 1,043.00
Masonry 16,847.00 16,847.00
Metals 1,110.00 1,110.00
Earthwork & Exterior
Emprovements 7,823.00 7,823.00
subtotal labor & material for 3
restorations 80,469.00 80,469.00
Contingency (10.8 %) 8,690.65 8,690.65
Federal Wage Rate Factor (9 %) 7,242.21 7,242.21
subtotal direct costs w /out
general conditions 96,401.86 96,401.86
Standard General Conditions
(Byways Grant Share) 771.43 771.43
total direct construction costs 97,173.29 97,173.29
Contractor Overhead & Profit
(10 %) 9,717.33 9,717.33
Escalation to 2011 (3 %) 2,915.20 2,915.20
subtotal net costs 109,805.82 109,805.82
Performance & Payment Bond
(2 %) 2,196.12 2,196.12
General Liability Insurance (1 %) 1098.06 1098.06
total restoration construction
cost 113,099.99 113,099.99
Construction Administration 25,000 25,000.00
Grant Administration 3,275 3,275.00
total administrative 28,275 28,275.00
Total budget from above 141,374.99 113,099.99 28,275.00
TOTAL COST
(rounded to nearest $1) 141,375 113,100 28,275
Pitkin County, along with Colorado Department of Transportation successfully completed the
Stabilization of the Thomasville Lime Kilns in 2006 and we look forward to the successful partnership
and completion of this project as well.
Page 21 of 34
•
EXHIBIT B- OPTION LETTER [SAMPLE OPTION LETTER]
Date: State Fiscal Year: 1 Option Letter No. 1 CLIN Routing #
1) OPTIONS: Choose all applicable options listed in §1 and in §2 and delete the rest.
a. Option to renew only (for an additional term)
b. Change in the amount of goods within current term
c. Change in amount of goods in conjunction with renewal for additional term
d. Level of service change within current term
e. Level of service change in conjunction with renewal for additional term
f. Option to initiate next phase of a contract
2) REQUIRED PROVISIONS. All Option Letters shall contain the appropriate provisions set forth below:
a. For use with Options 1(a -e): In accordance with Section(s) of the Original Contract routing
number between the State of Colorado, Insert Name of Department or Higher Ed Institution ,
and Contractor's Name, the State hereby exercises its option for an additional term beginning Insert
start date and ending on Insert ending date at a cost/price specified in Section , AND /OR an
increase /decrease in the amount of goods /services at the same rate(s) as specified in Identify the
Section, Schedule, Attachment, Exhibit etc.
b. For use with Option 1(f), please use the following: In accordance with Section(s) of the
Original Contract routing number between the State of Colorado, Insert Name of Department or
Higher Ed Institution , and Contractor's Name, the State hereby exercises its option to initiate Phase
indicate which Phase: 2, 3, 4, etc for the term beginning Insert start date and ending on Insert ending
date at the cost/price specified in Section
c. For use with all Options 1(a -f): The amount of the current Fiscal Year contract value is
increased/decreased by $ amount of change to a new contract value of Insert New $ Amt to as
consideration for services /goods ordered under the contract for the current fiscal year indicate Fiscal
Year. The first sentence in Section is hereby modified accordingly. The total contract value
including all previous amendments, option letters, etc. is Insert New $ Amt.
3) Effective Date. The effective date of this Option Letter is upon approval of the State Controller or
whichever is later
THE LOCAL AGENCY STATE OF COLORADO
INSERT -Legal Name of the Local Agency
By: INSERT -Name of Authorized Individual Bill Ritter, Jr. GOVERNOR
Title: INSERT - Official Title of Authorized Individual Colorado Department of Transportation
Russell George, Executive Director
By: INSERT -Name & Title of Person Signing for Agency or
*Signature IHE
Date: Date:
ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER
CRS §24 -30 -202 requires the State Controller to approve all State Contracts. This Contract is not valid until
signed and dated below by the State Controller or delegate. Contractor is not authorized to begin performance
until such time. H Contractor begins performing prior thereto, the State of Colorado is not obligated to pay
Contractor for such performance or for any goods and/or services provided hereunder.
State Controller
David J. McDermott, CPA
By:
Date: Effective Date: 1/6/09 -Rev 8/25/09
Page 22 of 34
•
EXHIBIT C- REQUIRED CONTRACT PROVISIONS -FHWA
FHWA -1273 Electronic version -- March 10, 1994
FHWA Form 1273
REQUIRED CONTRACT PROVISIONS
FEDERAL -AID CONSTRUCTION CONTRACTS
I. General 1 b. employ convict labor for any purpose within the limits
II. Nondiscrimination 1 of the project unless it is labor performed by convicts who are
III. Nonsegregated Facilities 3 on parole, supervised release, or probation.
IV. Payment of Predetermined Minimum Wage 3
V. Statements and Payrolls 6 11. NONDISCRIMINATION
VI. Record of Materials, Supplies, and Labor 6
VII. Subletting or Assigning the Contract 7 (Applicable to all Federal -aid construction contracts and to all
VIII. Safety: Accident Prevention 7 related subcontracts of $10,000 or more.)
IX. False Statements Concerning Highway Projects.... 7
X. Implementation of Clean Air Act and Federal 1. Equal Employment Opportunity: Equal employment
Water Pollution Control Act 8 opportunity (EEO) requirements not to discriminate and to take
XI. Certification Regarding Debarment, Suspension, affirmative action to assure equal opportunity as set forth under
Ineligibility, and Voluntary Exclusion 8 laws, executive orders, rules, regulations (28 CFR 35, 29 CFR
XII. Certification Regarding Use of Contract Funds for 1630 and 41 CFR 60) and orders of the Secretary of Labor as
Lobbying 9 modified by the provisions prescribed herein, and imposed
pursuant to 23 U.S.C. 140 shall constitute the EEO and specific
ATTACHMENTS affirmative action standards for the contractor's project
activities under this contract. The Equal Opportunity
A. Employment Preference for Appalachian Construction Contract Specifications set forth under 41 CFR
Contracts 60 -4.3 and the provisions of the American Disabilities Act of
(included in Appalachian contracts only) 1990 (42 U.S.C. 12101 g ggg.) set forth under 28 CFR 35 and
29 CFR 1630 are incorporated by reference in this contract. In
I. GENERAL the execution of this contract, the contractor agrees to comply
with the following minimum specific requirement activities of
1. These contract provisions shall apply to all work EEO:
performed on the contract by the contractor's own organization
and with the assistance of workers under the contractor's a. The contractor will work with the State highway
immediate superintendence and to all work performed on the agency (SHA) and the Federal Government in carrying out
contract by piecework, station work, or by subcontract. EEO obligations and in their review of his /her activities under
the contract.
2. Except as otherwise provided for in each section, the
contractor shall insert in each subcontract all of the stipulations b. The contractor will accept as his operating policy the
contained in these Required Contract Provisions, and further following statement:
require their inclusion in any lower tier subcontract or purchase
order that may in tum be made. The Required Contract Provi- "It is the policy of this Company to assure that applicants
sions shall not be incorporated by reference in any case. The are employed, and that employees are treated during
prime contractor shall be responsible for compliance by any employment, without regard to their race, religion, sex,
subcontractor or lower tier subcontractor with these Required color, national origin, age or disability. Such action shall
Contract Provisions. include: employment, upgrading, demotion, or transfer;
recruitment or recruitment advertising; layoff or
3. A breach of any of the stipulations contained in these termination; rates of pay or other forms of compensation;
Required Contract Provisions shall be sufficient grounds for and selection for training, including apprenticeship,
termination of the contract. preapprenticeship, and/or on- the -job training."
4. A breach of the following clauses of the Required 2. EEO Officer: The contractor will designate and make
Contract Provisions may also be grounds for debarment as known to the SHA contracting officers an EEO Officer who will
provided in 29 CFR 5.12: have the responsibility for and must be capable of effectively
administering and promoting an active contractor program of
Section I, paragraph 2; EEO and who must be assigned adequate authority and
Section IV, paragraphs 1, 2, 3, 4, and 7; responsibility to do so.
Section V, paragraphs 1 and 2a through 2g.
3. Dissemination of Policy: All members of the
5. Disputes arising out of the labor standards provisions of contractor's staff who are authorized to hire, supervise,
Section IV (except paragraph 5) and Section V of these promote, and discharge employees, or who recommend such
Required Contract Provisions shall not be subject to the action, or who are substantially involved in such action, will be
general disputes clause of this contract. Such disputes shall made fully cognizant of, and will implement, the contractors
be resolved in accordance with the procedures of the U.S. EEO policy and contractual responsibilities to provide EEO in
Department of Labor (DOL) as set forth in 29 CFR 5, 6, and 7. each grade and classification of employment. To ensure that
Disputes within the meaning of this clause include disputes the above agreement will be met, the following actions will be
between the contractor (or any of its subcontractors) and the taken as a minimum:
contracting agency, the DOL, or the contractor's employees or
their representatives. a. Periodic meetings of supervisory and personnel office
employees will be conducted before the start of work and then
6. Selection of Labor: During the performance of this con- not less often than once every six months, at which time the
tract, the contractor shall not: contractors EEO policy and its implementation will be reviewed
and explained. The meetings will be conducted by the EEO
a. discriminate against labor from any other State, Officer.
possession, or territory of the United States (except for
employment preference for Appalachian contracts, when b. All new supervisory or personnel office employees will
applicable, as specified in Attachment A), or be given a thorough indoctrination by the EEO Officer, covering
Page 23 of 34
all major aspects of the contractor's EEO obligations within discrimination may affect persons other than the complainant,
thirty days following their reporting for duty with the contractor. such corrective action shall include such other persons. Upon
completion of each investigation, the contractor will inform
c. All personnel who are engaged in direct recruitment every complainant of all of his avenues of appeal.
for the project will be instructed by the EEO Officer in the
contractor's procedures for locating and hiring minority group 6. Training and Promotion:
employees.
a. The contractor will assist in locating, qualifying, and
d. Notices and posters setting forth the contractor's EEO increasing the skills of minority group and women employees,
policy will be placed in areas readily accessible to employees, and applicants for employment.
applicants for employment and potential employees.
b. Consistent with the contractor's work force
e. The contractors EEO policy and the procedures to requirements and as permissible under Federal and State
implement such policy will be brought to the attention of regulations, the contractor shall make full use of training
employees by means of meetings, employee handbooks, or programs, i.e., apprenticeship, and on- the -job training
other appropriate means. programs for the geographical area of contract performance.
Where feasible, 25 percent of apprentices or trainees in each
4. Recruitment: When advertising for employees, the occupation shall be in their first year of apprenticeship or
contractor will include in all advertisements for employees the training. In the event a special provision for training is provided
notation: "An Equal Opportunity Employer." All such under this contract, this subparagraph will be superseded as
advertisements will be placed in publications having a large indicated in the special provision.
circulation among minority groups in the area from which the
project work force would normally be derived. c. The contractor will advise employees and applicants
for employment of available training programs and entrance
a. The contractor will, unless precluded by a valid requirements for each.
bargaining agreement, conduct systematic and direct
recruitment through public and private employee referral d. The contractor will periodically review the training and
sources likely to yield qualified minority group applicants. To promotion potential of minority group and women employees
meet this requirement, the contractor will identify sources of and will encourage eligible employees to apply for such training
potential minority group employees, and establish with such and promotion.
identified sources procedures whereby minority group
applicants may be referred to the contractor for employment 7. Unions: If the contractor relies in whole or in part upon
consideration. unions as a source of employees, the contractor will use
his /her best efforts to obtain the cooperation of such unions to
b. In the event the contractor has a valid bargaining increase opportunities for minority groups and women within
agreement providing for exclusive hiring hall referrals, he is the unions, and to effect referrals by such unions of minority
expected to observe the provisions of that agreement to the and female employees. Actions by the contractor either directly
extent that the system permits the contractor's compliance with or through a contractor's association acting as agent will
EEO contract provisions. (The DOL has held that where include the procedures set forth below:
implementation of such agreements have the effect of
discriminating against minorities or women, or obligates the a. The contractor will use best efforts to develop, in
contractor to do the same, such implementation violates cooperation with the unions, joint training programs aimed
Executive Order 11246, as amended.) toward qualifying more minority group members and women for
membership in the unions and increasing the skills of minority
c. The contractor will encourage his present employees group employees and women so that they may quality for
to refer minority group applicants for employment. Information higher paying employment.
and procedures with regard to referring minority group
applicants will be discussed with employees. b. The contractor will use best efforts to incorporate an
EEO clause into each union agreement to the end that such
5. Personnel Actions: Wages, working conditions, and union will be contractually bound to refer applicants without
employee benefits shall be established and administered, and regard to their race, color, religion, sex, national origin, age or
personnel actions of every type, including hiring, upgrading, disability.
promotion, transfer, demotion, layoff, and termination, shall be
taken without regard to race, color, religion, sex, national origin, c. The contractor is to obtain information as to the
age or disability. The following procedures shall be followed: referral practices and policies of the labor union except that to
the extent such information is within the exclusive possession
a. The contractor will conduct periodic inspections of of the labor union and such labor union refuses to furnish such
project sites to insure that working conditions and employee information to the contractor, the contractor shall so certify to
facilities do not indicate discriminatory treatment of project site the SHA and shall set forth what efforts have been made to
personnel. obtain such infornation.
b. The contractor will periodically evaluate the spread of d. In the event the union is unable to provide the
wages paid within each classification to determine any contractor with a reasonable flow of minority and women
evidence of discriminatory wage practices. referrals within the time limit set forth in the collective
bargaining agreement, the contractor will, through independent
c. The contractor will periodically review selected recruitment efforts, fill the employment vacancies without
personnel actions in depth to determine whether there is regard to race, color, religion, sex, national origin, age or
evidence of discrimination. Where evidence is found, the disability; making full efforts to obtain qualified and/or
contractor will promptly take corrective action. If the review qualifiable minority group persons and women. (The DOL has
indicates that the discrimination may extend beyond the actions held that it shall be no excuse that the union with which the
reviewed, such corrective action shall include all affected contractor has a collective bargaining agreement providing for
persons. exclusive referral failed to refer minority employees.) In the
event the union referral practice prevents the contractor from
d. The contractor will promptly investigate all complaints of meeting the obligations pursuant to Executive Order 11246, as
alleged discrimination made to the contractor in connection amended, and these special provisions, such contractor shall
with his obligations under this contract, will attempt to resolve immediately notify the SHA.
such complaints, and will take appropriate corrective action
within a. reasonable time. If the investigation indicates that the
Page 24 of 34
•
•
8. Selection of Subcontractors, Procurement of b. As used in this certification, the term "segregated
Materials and Leasing of Equipment: The contractor shall facilities" means any waiting rooms, work areas, restrooms and
not discriminate on the grounds of race, color, religion, sex, washrooms, restaurants and other eating areas, timeclocks,
national origin, age or disability in the selection and retention of locker rooms, and other storage or dressing areas, parking lots,
subcontractors, including procurement of materials and leases drinking fountains, recreation or entertainment areas, transpor-
of equipment. tatlon, and housing facilities provided for employees which are
segregated by explicit directive, or are, in fact, segregated on
a. The contractor shall notify all potential subcontractors the basis of race, color, religion, national origin, age or
and suppliers of his/her EEO obligations under this contract. disability, because of habit, local custom, or otherwise. The
only exception will be for the disabled when the demands for
b. Disadvantaged business enterprises (DBE), as accessibility override (e.g. disabled parking).
defined in 49 CFR 23, shall have equal opportunity to compete
for and perform subcontracts which the contractor enters into c. The contractor agrees that it has obtained or will obtain
pursuant to this contract. The contractor will use his best identical certification from proposed subcontractors or material
efforts to solicit bids from and to utilize DBE subcontractors or suppliers prior to award of subcontracts or consummation of
subcontractors with meaningful minority group and female material supply agreements of $10,000 or more and that it will
representation among their employees. Contractors shall retain such certifications in its files.
obtain lists of DBE construction fines from SHA personnel.
IV. PAYMENT OF PREDETERMINED MINIMUM WAGE
c. The contractor will use his best efforts to ensure
subcontractor compliance with their EEO obligations. (Applicable to all Federal -aid construction contracts
exceeding $2,000 and to all related subcontracts, except for
9. Records and Reports: The contractor shall keep such projects located on roadways classified as local roads or rural
records as necessary to document compliance with the EEO minor collectors, which are exempt)
requirements. Such records shall be retained for a period of
three years following completion of the contract work and shall 1. General:
be available at reasonable times and places for inspection by
authorized representatives of the SHA and the FHWA. a. All mechanics and laborers employed or working
upon the site of the work will be paid unconditionally and not
a. The records kept by the contractor shall document the less often than once a week and without subsequent deduction
following; or rebate on any account [except such payroll deductions as
are permitted by regulations (29 CFR 3) issued by the
(1) The number of minority and non- minority group Secretary of Labor under the Copeland Act (40 U.S.C. 276c)]
members and women employed in each work classification on the full amounts of wages and bona fide fringe benefits (or
the project; cash equivalents thereof) due at time of payment. The
payment shall be computed at wage rates not less than those
(2) The progress and efforts being made in contained in the wage determination of the Secretary of Labor
cooperation with unions, when applicable, to increase (hereinafter "the wage determination ") which Is attached hereto
employment opportunities for minorities and women; and made a part hereof, regardless of any contractual
relationship which may be alleged to exist between the
(3) The progress and efforts being made in locating, contractor or its subcontractors and such laborers and
hiring, training, qualifying, and upgrading minority and female mechanics. The wage determination (including any additional
employees; and classifications and wage rates conformed under paragraph 2 of
this Section IV and the DOL poster (WH -1321) or Form FHWA-
(4) The progress and efforts being made in securing 1495) shall be posted at all times by the contractor and its
the services of DBE subcontractors or subcontractors with subcontractors at the site of the work in a prominent and
meaningful minority and female representation among their accessible place where it can be easily seen by the workers.
employees. For the purpose of this Section, contributions made or costs
reasonably anticipated for bona fide fringe benefits under
b. The contractors will submit an annual report to the Section 1(b)(2) of the Davis -Bacon Act (40 U.S.C. 276a) on
SHA each July for the duration of the project, indicating the behalf of laborers or mechanics are considered wages paid to
number of minority, women, and non - minority group employees such laborers or mechanics, subject to the provisions of
currently engaged in each work classification required by the Section IV, paragraph 3b, hereof, Also, for the purpose of this
contract work. This information is to be reported on Form Section, regular contributions made or costs incurred for more
FHWA -1391. If on -the job training is being required by special than a weekly period (but not less often than quarterly) under
provision, the contractor will be required to collect and report plans, funds, or programs, which cover the particular weekly
training data. period, are deemed to be constructively made or incurred
during such weekly period. Such laborers and mechanics shall
111. NONSEGREGATED FACILMES be paid the appropriate wage rate and fringe benefits on the
wage determination for the classification of work actually
(Applicable to all Federal -aid construction contracts and to all performed, without regard to skill, except as provided in
related subcontracts of $10,000 or more.) paragraphs 4 and 5 of this Section IV.
a. By submission of this bid, the execution of this b. Laborers or mechanics performing work in more than
contract or subcontract, or the consummation of this material one classification may be compensated at the rate specified for
supply agreement or purchase order, as appropriate, the each classification for the time actually worked therein,
bidder, Federal -aid construction contractor, subcontractor, provided, that the employer's payroll records accurately set
material supplier, or vendor, as appropriate, certifies that the forth the time spent in each classification in which work is
firm does not maintain or provide for its employees any - performed.
segregated facilities at any of its establishments, and that the
firm does not permit its employees to perform their services at c. All rulings and interpretations of the Davis -Bacon Act
any location, under its control, where segregated facilities are and related acts contained in 29 CFR 1, 3, and 5 are herein
maintained. The firm agrees that a breach of this certification is incorporated by reference in this contract.
a violation of the EEO provisions of this contract, The fine
further certifies that no employee will be denied access to 2. Classification:
adequate facilities on the basis of sex or disability.
a. The SHA contracting officer shall require that any
class of laborers or mechanics employed under the contract,
Page 25 of 34
which is not listed in the wage determination, shall be classified 4. Apprentices and Trainees (Programs of the U.S. DOL)
in conformance with the wage determination. and Helpers:
b. The contracting officer shall approve an additional a. Apprentices:
classification, wage rate and fringe benefits only when the
following criteria have been met: (1) Apprentices will be permitted to work at less than
the predetermined rate for the work they performed when they
(1) the work to be performed by the additional are employed pursuant to and individually registered in a bona
classification requested is not performed by a classification in fide apprenticeship program registered with the DOL, Employ -
the wage determination; ment and Training Administration, Bureau of Apprenticeship
and Training, or with a State apprenticeship agency recognized
(2) the additional classification is utilized in the area by the Bureau, or if a person is employed in his/her first 90
by the construction industry; days of probationary employment as an apprentice in such an
apprenticeship program, who is not individually registered in
(3) the proposed wage rate, including any bona fide the program, but who has been certified by the Bureau of
Cringe benefits, bears a reasonable relationship to the wage Apprenticeship and Training or a State apprenticeship agency
rates contained in the wage determination; and (where appropriate) to be eligible for probationary employment
as an apprentice.
(4) with respect to helpers, when such a
classification prevails in the area in which the work is (2) The allowable ratio of apprentices to
performed. journeyman -level employees on the job site in any craft
classification shall not be greater than the ratio permitted to the
c. If the contractor or subcontractors, as appropriate, the contractor as to the entire work force under the registered
laborers and mechanics (if known) to be employed in the program. Any employee listed on a payroll at an apprentice
additional classification or their representatives, and the wage rate, who is not registered or otherwise employed as
contracting officer agree on the classification and wage rate stated above, shall be paid not less than the applicable wage
(including the amount designated for fringe benefits where rate listed in the wage determination for the classification of
appropriate), a report of the action taken shall be sent by the work actually performed. In addition, any apprentice
contracting officer to the DOL, Administrator of the Wage and performing work on the job site in excess of the ratio permitted
Hour Division, Employment Standards Administration, under the registered program shall be paid not less than the
Washington, D.C. 20210. The Wage and Hour Administrator, applicable wage rate on the wage determination for the work
or an authorized representative, will approve, modify, or actually performed. Where a contractor or subcontractor is
disapprove every additional classification action within 30 days performing construction on a project in a locality other than that
of receipt and so advise the contracting officer or will notify the in which its program is registered, the ratios and wage rates
contracting officer within the 30 -day period that additional time (expressed in percentages of the journeyman -level hourly rate)
is necessary. specified in the contractors or subcontractor's registered
program shall be observed.
d. In the event the contractor or subcontractors, as
appropriate, the laborers or mechanics to be employed in the (3) Every apprentice must be paid at not less than
additional classification or their representatives, and the the rate specified in the registered program for the apprentice's
contracting officer do not agree on the proposed classification level of progress, expressed as a percentage of the
and wage rate (including the amount designated for fringe journeyman -level hourly rate specified in the applicable wage
benefits, where appropriate), the contracting officer shall refer determination. Apprentices shall be paid fringe benefits in
the questions, including the views of all interested parties and accordance with the provisions of the apprenticeship program.
the recommendation of the contracting officer, to the Wage and If the apprenticeship program does not specify fringe benefits,
Hour Administrator for determination. Said Administrator, or an apprentices must be paid the full amount of fringe benefits
authorized representative, will issue a determination within 30 listed on the wage determination for the applicable
days of receipt and so advise the contracting officer or will classification. If the Administrator for the Wage and Hour
notify the contracting officer within the 30 -day period that Division determines that a different practice prevails for the
additional time is necessary applicable apprentice classification, hinges shall be paid in
accordance with that determination.
e. The wage rate (including fringe benefits where
appropriate) determined pursuant to paragraph 2c or 2d of this (4) In the event the Bureau of Apprenticeship and
Section IV shall be paid to all workers performing work in the Training, or a State apprenticeship agency recognized by the
additional classification from the first day on which work is Bureau, withdraws approval of an apprenticeship program, the
performed in the classification. contractor or subcontractor will no longer be permitted to utilize
apprentices at less than the applicable predetermined rate for
3. Payment of Fringe Benefits: the comparable work performed by regular employees until an
acceptable program is approved.
a. Whenever the minimum wage rate prescribed in the
contract for a class of laborers or mechanics includes a fringe b. Trainees:
benefit which is not expressed as an hourly rate, the contractor
or subcontractors, as appropriate, shall either pay the benefit (1) Except as provided in 29 CFR 5.16, trainees will
as stated in the wage determination or shall pay another bona not be permitted to work at less than the predetermined rate for
fide fringe benefit or an hourly case equivalent thereof. the work performed unless they are employed pursuant to and
individually registered in a program which has received prior
b. If the contractor or subcontractor, as appropriate, approval, evidenced by formal certification by the DOL,
does not make payments to a trustee or other third person, Employment and Training Administration.
he /she may consider as a part of the wages of any laborer or
mechanic the amount of any costs reasonably anticipated in (2) The ratio of trainees to journeyman -level
providing bona fide fringe benefits under a plan or program, employees on the job site shall not be greater than permitted
provided, that the Secretary of Labor has found, upon the under the plan approved by the Employment and Training
written request of the contractor, that the applicable standards Administration. Any employee listed on the payroll at a trainee
of the Davis -Bacon Act have been met. The Secretary of rate who is not registered and participating in a training plan
Labor may require the contractor to set aside in a separate approved by the Employment and Training Administration shall
account assets for the meeting of obligations under the plan or be paid not less than the applicable wage rate on the wage
program. determination for the classification of work actually performed.
In addition, any trainee performing work on the job site in
Page 26 of 34
•
•
excess of the ratio permitted under the registered program watchman, or guard in any workweek in which he /she is
shall be paid not less than the applicable wage rate on the employed on such work, to work in excess of 40 hours in such
wage determination for the work actually performed. workweek unless such laborer, mechanic, watchman, or guard
receives compensation at a rate not less than one - and - one -half
(3) Every trainee must be paid at not less than the times his/her basic rate of pay for all hours worked in excess of
rate specified in the approved program for his /her level of 40 hours in such workweek.
progress, expressed as a percentage of the journeyman -level
hourly rate specified in the applicable wage determination. 8. Violation:
Trainees shall be paid fringe benefits in accordance with the
provisions of the trainee program. If the trainee program does Liability for Unpaid Wages; Liquidated Damages: In the
not mention fringe benefits, trainees shall be paid the full event of any violation of the clause set forth in paragraph 7
amount of hinge benefits listed on the wage determination above, the contractor and any subcontractor responsible
unless the Administrator of the Wage and Hour Division thereof shall be liable to the affected employee for his/her
determines that there is an apprenticeship program associated unpaid wages. In addition, such contractor and subcontractor
with the corresponding journeyman -level wage rate on the shall be liable to the United States (in the case of work done
wage determination which provides for less than full fringe under contract for the District of Columbia or a territory, to such
benefits for apprentices, in which case such trainees shall District or to such territory) for liquidated damages. Such
receive the same fringe benefits as apprentices. liquidated damages shall be computed with respect to each
individual laborer, mechanic, watchman, or guard employed in
(4) In the event the Employment and Training violation of the clause set forth in paragraph 7, in the sum of
Administration withdraws approval of a training program, the $10 for each calendar day on which such employee was
contractor or subcontractor will no longer be permitted to utilize required or permitted to work in excess of the standard work
trainees at less than the applicable predetermined rate for the week of 40 hours without payment of the overtime wages
work performed until an acceptable program is approved. required by the clause set forth in paragraph 7.
c. Helpers: 9. Withholding for Unpaid Wages and Liquidated
Damages:
Helpers will be permitted to work on a project if the
helper classification is specified and defined on the applicable The SHA shall upon its own action or upon written request of
wage determination or is approved pursuant to the any authorized representative of the DOL withhold, or cause to
conformance procedure set forth in Section IV.2. Any worker be withheld, from any monies payable on account of work
listed on a payroll at a helper wage rate, who is not a helper performed by the contractor or subcontractor under any such
under a approved definition, shall be paid not less than the contract or any other Federal contract with the same prime
applicable wage rate on the wage determination for the contractor, or any other Federally- assisted contract subject to
classification of work actually performed. the Contract Work Hours and Safety Standards Act, which is
held by the same prime contractor, such sums as may be
5. Apprentices and Trainees (Programs of the U.S. determined to be necessary to satisfy any liabilities of such
DOT): contractor or subcontractor for unpaid wages and liquidated
damages as provided in the clause set forth in paragraph 8
Apprentices and trainees working under apprenticeship above.
and skill training programs which have been certified by the
Secretary of Transportation as promoting EEO in connection V. STATEMENTS AND PAYROLLS
with Federal -aid highway construction programs are not subject
to the requirements of paragraph 4 of this Section IV. The (Applicable to all Federal -aid construction contracts
straight time hourly wage rates for apprentices and trainees exceeding $2,000 and to all related subcontracts, except for
under such programs will be established by the particular projects located on roadways classified as local roads or rural
programs. The ratio of apprentices and trainees to journeymen collectors, which are exempt.)
shall not be greater than permitted by the terms of the
particular program. 1. Compliance with Copeland Regulations (29 CFR 3):
6. Withholding: The contractor shall comply with the Copeland Regulations
of the Secretary of Labor which are herein incorporated by
The SHA shall upon its own action or upon written reference.
request of an authorized representative of the DOL withhold, or
cause to be withheld, from the contractor or subcontractor 2. Payrolls and Payroll Records:
under this contract or any other Federal contract with the same
prime contractor, or any other Federally - assisted contract a. Payrolls and basic records relating thereto shall be
subject to Davis -Bacon prevailing wage requirements which is maintained by the contractor and each subcontractor during the
held by the same prime contractor, as much of the accrued course of the work and preserved for a period of 3 years from
payments or advances as may be considered necessary to pay the date of completion of the contract for all laborers,
laborers and mechanics, including apprentices, trainees, and mechanics, apprentices, trainees, watchmen, helpers, and
helpers, employed by the contractor or any subcontractor the guards working at the site of the work.
full amount of wages required by the contract. In the event of
failure to pay any laborer or mechanic, including any b. The payroll records shall contain the name, social
apprentice, trainee, or helper, employed or working on the site security number, and address of each such employee; his or
of the work, all or part of the wages required by the contract, her correct classification; hourly rates of wages paid (including
the SHA contracting officer may, after written notice to the rates of contributions or costs anticipated for bona fide fringe
contractor, take such action as may be necessary to cause the benefits or cash equivalent thereof the types described in
suspension of any further payment, advance, or guarantee of Section 1(b)(2)(8) of the Davis Bacon Act); daily and weekly
funds until such violations have ceased. number of hours worked; deductions made; and actual wages
paid. In addition, for Appalachian contracts, the payroll records
7. Overtime Requirements: shall contain a notation indicating whether the employee does,
or does not, normally reside in the labor area as defined in
No contractor or subcontractor contracting for any part Attachment A, paragraph 1. Whenever the Secretary of Labor,
of the contract work which may require or involve the employ- pursuant to Section IV, paragraph 3b, has found that the wages
ment of laborers, mechanics, watchmen, or guards (including of any laborer or mechanic include the amount of any costs
apprentices, trainees, and helpers described in paragraphs 4 reasonably anticipated in providing benefits under a plan or
and 5 above) shall require or permit any laborer, mechanic, program described in Section 1(b)(2)(B) of the Davis Bacon
Page 27 of 34
Act, the contractor and each subcontractor shall maintain VI. RECORD OF MATERIALS, SUPPLIES, AND LABOR
records which show that the commitment to provide such
benefits is enforceable, that the plan or program is financially 1. On all Federal -aid contracts on the National Highway
responsible, that the plan or program has been communicated System, except those which provide solely for the installation of
in writing to the laborers or mechanics affected, and show the protective devices at railroad grade crossings, those which are
cost anticipated or the actual cost incurred in providing constructed on a force account or direct labor basis, highway
benefits. Contractors or subcontractors employing apprentices beautification contracts, and contracts for which the total final
or trainees under approved programs shall maintain written construction cost for roadway and bridge is less than $1,000, -
evidence of the registration of apprentices and trainees, and 000 (23 CFR 635) the contractor shall:
ratios and wage rates prescribed in the applicable programs.
a. Become familiar with the list of specific materials and
c. Each contractor and subcontractor shall furnish, each supplies contained in Form FHWA -47, "Statement of Materials
week in which any contract work is performed, to the SHA and Labor Used by Contractor of Highway Construction
resident engineer a payroll of wages paid each of its Involving Federal Funds," prior to the commencement of work
employees (including apprentices, trainees, and helpers, under this contract.
described in Section IV, paragraphs 4 and 5, and watchmen
and guards engaged on work during the preceding weekly b. Maintain a record of the total cost of all materials and
payroll period). The payroll submitted shall set out accurately, supplies purchased for and incorporated in the work, and also
and completely all of the information required to be maintained of the quantities of those specific materials and supplies listed
under paragraph 2b of this Section V. This information may be on Form FHWA -47, and in the units shown on Form FHWA -47.
submitted in any form desired. Optional Form WH -347 is
available for this purpose and may be purchased from the c. Furnish, upon the completion of the contract, to the
Superintendent of Documents (Federal stock number 029 -005- SHA resident engineer on Form FHWA -47 together with the
0014 -1), U.S. Government Printing Office, Washington, D.C. data required in paragraph lb relative to materials and
20402. The prime contractor is responsible for the submission supplies, a final labor summary of all contract work indicating
of copies of payrolls by all subcontractors. the total hours worked and the total amount eamed.
d. Each payroll submitted shall be accompanied by a 2. At the prime contractor's option, either a single report
"Statement of Compliance," signed by the contractor or covering all contract work or separate reports for the contractor
subcontractor or his/her agent who pays or supervises the and for each subcontract shall be submitted.
payment of the persons employed under the contract and shall
certify the following: VII. SUBLETTING OR ASSIGNING THE CONTRACT
(1) that the payroll for the payroll period contains the 1. The contractor shall perform with its own organization
information required to be maintained under paragraph 2b of contract work amounting to not less than 30 percent (or a
this Section V and that such information is correct and greater percentage if specified elsewhere in the contract) of the
complete; total original contract price, excluding any specialty items
designated by the State. Specialty items may be performed by
(2) that such laborer or mechanic (including each subcontract and the amount of any such specialty items per -
helper, apprentice, and trainee) employed on the contract formed may be deducted from the total original contract price
during the payroll period has been paid the full weekly wages before computing the amount of work required to be performed
earned, without rebate, either directly or indirectly, and that no by the contractor's own organization (23 CFR 635).
deductions have been made either directly or indirectly from
the full wages earned, other than permissible deductions as set a. "Its own organization" shall be construed to include
forth in the Regulations, 29 CFR 3; only workers employed and paid directly by the prime
contractor and equipment owned or rented by the prime
(3) that each laborer or mechanic has been paid not contractor, with or without operators. Such term does not
less that the applicable wage rate and fringe benefits or cash include employees or equipment of a subcontractor, assignee,
equivalent for the classification of worked performed, as or agent of the prime contractor.
specified in the applicable wage determination incorporated
into the contract. b. "Specialty Items" shall be construed to be limited to
work that requires highly specialized knowledge, abilities, or
e. The weekly submission of a properly executed equipment not ordinarily available in the type of contracting
certification set forth on the reverse side of Optional Form WH- organizations qualified and expected to bid on the contract as a
347 shall satisfy the requirement for submission of the whole and in general are to be limited to minor components of
"Statement of Compliance" required by paragraph 2d of this the overall contract.
Section V.
2. The contract amount upon which the requirements set
f. The falsification of any of the above certifications may forth in paragraph 1 of Section VII is computed includes the
subject the contractor to civil or criminal prosecution under 18 cost of material and manufactured products which are to be
U.S.C. 1001 and 31 U.S.C. 231. purchased or produced by the contractor under the contract
provisions.
g. The contractor or subcontractor shall make the
records required under paragraph 2b of this Section V available 3. The contractor shall furnish (a) a competent
for inspection, copying, or transcription by authorized superintendent or supervisor who is employed by the fine, has
representatives of the SHA, the FHWA, or the DOL, and shall full authority to direct performance of the work in accordance
permit such representatives to interview employees during with the contract requirements, and is in charge of all
working hours on the job. If the contractor or subcontractor construction operations (regardless of who performs the work)
fails to submit the required records or to make them available, and (b) such other of its own organizational resources
the SHA, the FHWA, the DOL, or all may, after written notice to (supervision, management, and engineering services) as the
the contractor, sponsor, applicant, or owner, take such actions SHA contracting officer determines is necessary to assure the
as may be necessary to cause the suspension of any further performance of the contract.
payment, advance, or guarantee of funds. Furthermore, failure
to submit the required records upon request or to make such 4. No portion of the contract shall be sublet, assigned or
records available may be grounds for debarment action otherwise disposed of except with the written consent of the
pursuant to 29 CFR 5.12. 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.
Page 28 of 34
•
Written consent will be given only after the SHA has assured
that each subcontract is evidenced in writing and that it Whoever knowingly makes any false statement or false
contains all pertinent provisions and requirements of the prime representation as to material fact in any statement, certificate,
contract. or report submitted pursuant to provisions of the Federal -aid
Roads Act approved July 1, 1976, (39 Stat. 355), as amended
VIII. SAFETY: ACCIDENT PREVENTION and supplemented;
1. In the performance of this contract the contractor shall Shall be fined not more that $10,000 or imprisoned not more
comply with all applicable Federal, State, and local laws than 5 years or both."
governing safety, health, and sanitation (23 CFR 635). The
contractor shall provide all safeguards, safety devices and X. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL
protective equipment and take any other needed actions as it WATER POLLUTION CONTROL ACT
determines, or as the SHA contracting officer may determine,
to be reasonably necessary to protect the life and health of (Applicable to all Federal -aid construction contracts and to all
employees on the job and the safety of the public and to related subcontracts of $100,000 or more.)
protect property in connection with the performance of the work
covered by the contract. By submission of this bid or the execution of this contract, or
subcontract, as appropriate, the bidder, Federal -aid
2. It is a condition of this contract, and shall be made a construction contractor, or subcontractor, as appropriate, will
condition of each subcontract, which the contractor enters into be deemed to have stipulated as follows:
pursuant to this contract, that the contractor and any
subcontractor shall not permit any employee, in performance of 1. That any facility that is or will be utilized in the performance
the contract, to work in surroundings or under conditions which of this contract, unless such contract is exempt under the
are unsanitary, hazardous or dangerous to his /her health or Clean Air Act, as amended (42 U.S.C. 1857 et., as
safety, as determined under construction safety and health amended by Pub.L. 91 -604), and under the Federal Water
standards (29 CFR 1926) promulgated by the Secretary of Pollution Control Act, as amended (33 U.S.C. 1251 et g., as
Labor, in accordance with Section 107 of the Contract Work amended by Pub.L. 92 -500), Executive Order 11738, and
Hours and Safety Standards Act (40 U.S.C. 333). regulations in implementation thereof (40 CFR 15) is not listed,
on the date of contract award, on the U.S. Environmental
3. Pursuant to 29 CFR 1926.3, it is a condition of this Protection Agency (EPA) List of Violating Facilities pursuant to
contract that the Secretary of Labor or authorized 40 CFR 15.20.
representative thereof, shall have right of entry to any site of
contract performance to inspect or investigate the matter of 2. That the firm agrees to comply and remain in compliance
compliance with the construction safety and health standards with all the requirements of Section 114 of the Clean Air Act
and to carry out the duties of the Secretary under Section 107 and Section 308 of the Federal Water Pollution Control Act and
of the Contract Work Hours and Safety Standards Act (40 all regulations and guidelines listed thereunder.
U.S.C. 333).
3. That the firm shall promptly notify the SHA of the receipt of
IX. FALSE STATEMENTS CONCERNING HIGHWAY any communication from the Director, Office of Federal
PROJECTS Activities, EPA, indicating that a facility that is or will be utilized
for the contract is under consideration to be listed on the EPA
In order to assure high quality and durable construction in List of Violating Facilities.
conformity with approved plans and specifications and a high
degree of reliability on statements and representations made 4. That the firm agrees to include or cause to be included the
by engineers, contractors, suppliers, and workers on Federal- requirements of paragraph 1 through 4 of this Section X in
aid highway projects, it is essential that all persons concerned every nonexempt subcontract, and further agrees to take such
with the project perform their functions as carefully, thoroughly, action as the government may direct as a means of enforcing
and honestly as possible. Willful falsification, distortion, or such requirements.
misrepresentation with respect to any facts related to the
project is a violation of Federal law. To prevent any XI. CERTIFICATION REGARDING DEBARMENT,
misunderstanding regarding the seriousness of these and SUSPENSION,
similar acts, the following notice shall be posted on each INELIGIBILITY AND VOLUNTARY EXCLUSION
Federal -aid highway project (23 CFR 635) in one or more
places where it is readily available to all persons concerned 1. Instructions for Certification - Primary Covered
with the project: Transactions:
NOTICE TO ALL PERSONNEL ENGAGED ON FEDERAL- (Applicable to all Federal -aid contracts - 49 CFR 29)
AID HIGHWAY PROJECTS
a. By signing and submitting this proposal, the
18 U.S.C. 1020 reads as follows: prospective primary participant is providing the certification set
out below.
"Whoever, being an officer, agent, or employee of the United
States, or of any State or Territory, or whoever, whether a b. The inability of a person to provide the certification set
person, association, firm, or corporation, knowing /y makes any out below will not necessarily result in denial of participation in
false statement, false representation, or false report as to the this covered transaction. The prospective participant shall
character, quality, quantity, or cost of the material used or to be submit an explanation of why it cannot provide the certification
used, or the quantity or quality of the work performed or to be set out below. The certification or explanation will be
performed, or the cost thereof in connection with the submis- considered in connection with the department or agency's
sion of plans, maps, specifications, contracts, or costs of determination whether to enter into this transaction. However,
construction on any highway or related project submitted for failure of the prospective primary participant to furnish a
approval to the Secretary of Transportation; or certification or an explanation shall disqualify such a person
from participation in this transaction.
Whoever knowingly makes any false statement, false
representation, false report or false claim with respect to the c. The certification in this clause is a material
character, quality, quantity, or cost of any work performed or to representation of fact upon which reliance was placed when
be performed, or materials furnished or to be furnished, in the department or agency determined to enter into this
connection with the construction of any highway or related transaction. If it is later determined that the prospective
project approved by the Secretary of Transportation; or primary participant knowingly rendered an erroneous
Page 29 of 34
•
certification, in addition to other remedies available to the a. Are not presently debarred, suspended, proposed for
Federal Government, the department or agency may terminate debarment, declared ineligible, or voluntarily excluded from
this transaction for cause of default. covered transactions by any Federal department or agency;
d. The prospective primary participant shall provide b. Have not within a 3 -year period preceding this
immediate written notice to the department or agency to whom proposal been convicted of or had a civil judgment rendered
this proposal is submitted if any time the prospective primary against them for commission of fraud or a criminal offense in
participant teams that its certification was erroneous when connection with obtaining, attempting to obtain, or performing a
submitted or has become erroneous by reason of changed public (Federal, State or local) transaction or contract under a
circumstances. public transaction; violation of Federal or State antitrust
statutes or commission of embezzlement, theft, forgery,
e. The terms "covered transaction," "debarred," bribery, falsification or destruction of records, making false
"suspended," "ineligible," "lower tier covered transaction," statements, or receiving stolen property;
"participant," "person," "primary covered transaction,"
"principal," "proposal," and "voluntarily excluded," as used in c. Are not presently indicted for or otherwise criminally or
this clause, have the meanings set out in the Definitions and civilly charged by a governmental entity (Federal, State or
Coverage sections of rules implementing Executive Order local) with commission of any of the offenses enumerated in
12549. You may contact the department or agency to which paragraph 1 b of this certification; and
this proposal is submitted for assistance in obtaining a copy of
those regulations. d. Have not within a 3 -year period preceding this
application/proposal had one or more public transactions
f. The prospective primary participant agrees by (Federal, State or local) terminated for cause or default.
submitting this proposal that, should the proposed covered
transaction be entered into, it shall not knowingly enter into any 2. Where the prospective primary participant is unable to
lower tier covered transaction with a person who is debarred, certify to any of the statements in this certification, such
suspended, declared ineligible, or voluntarily excluded from prospective participant shall attach an explanation to this
participation in this covered transaction, unless authorized by proposal.
the department or agency entering into this transaction.
g. The prospective primary participant further agrees by
submitting this proposal that it will include the clause titled
"Certification Regarding Debarment, Suspension, Ineligibility 2. Instructions for Certification • Lower Tier Covered
and Voluntary Exclusion -Lower Tier Covered Transaction," Transactions:
provided by the department or agency entering into this
covered transaction, without modification, in all lower tier (Applicable to all subcontracts, purchase orders and other.
covered transactions and in all solicitations for lower tier lower tier transactions of $25,000 or more - 49 CFR 29)
covered transactions.
a. By signing and submitting this proposal, the
h. A participant in a covered transaction may rely upon a prospective lower tier is providing the certification set out
certification of a prospective participant in a lower tier covered below.
transaction that is not debarred, suspended, ineligible, or
voluntarily excluded from the covered transaction, unless it b. The certification in this clause is a material
knows that the certification is erroneous. A participant may representation of fact upon which reliance was placed when
decide the method and frequency by which it determines the this transaction was entered into. If it is later determined that
eligibility of its principals. Each participant may, but is not the prospective lower tier participant knowingly rendered an
required to, check the nonprocurement portion of the "Lists of erroneous certification, in addition to other remedies available
Parties Excluded From Federal Procurement or to the Federal Govemment, the department, or agency with
Nonprocurement Programs" (Nonprocurement List) which is which this transaction originated may pursue available
compiled by the General Services Administration. remedies, including suspension and/or debarment.
I. Nothing contained in the foregoing shall be construed c. The prospective lower tier participant shall provide
to require establishment of a system of records in order to immediate written notice to the person to which this proposal is
render in good faith the certification required by this clause. submitted if at any time the prospective lower tier participant
The knowledge and information of participant is not required to learns that its certification was erroneous by reason of changed
exceed that which is normally possessed by a prudent person circumstances.
in the ordinary course of business dealings.
d. The terms "covered transaction," "debarred,'
j. Except for transactions authorized under paragraph f "suspended," "ineligible," "primary covered transaction,"
of these instructions, if a participant in a covered transaction "participant,' "person;' "principal," "proposal," and "voluntarily
knowingly enters into a lower tier covered transaction with a excluded," as used in this clause, have the meanings set out in
person who is suspended, debarred, ineligible, or voluntarily the Definitions and Coverage sections of rules implementing
excluded from participation in this transaction, in addition to Executive Order 12549. You may contact the person to which
other remedies available to the Federal Government, the this proposal is submitted for assistance in obtaining a copy of
department or agency may terminate this transaction for cause those regulations.
or default.
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,
Certification Regarding Debarment, Suspension, suspended, declared ineligible, or voluntarily excluded from
Ineligibility and Voluntary Exclusion— Primary Covered participation in this covered transaction, unless authorized by
Transactions the department or agency with which this transaction
originated.
1. The prospective primary participant certifies to the best of
its knowledge and belief, that it and its principals: f. The prospective lower tier participant further agrees by
submitting this proposal that it wig include this clause titled
"Certification Regarding Debarment, Suspension, Ineligibility
and Voluntary Exclusion -Lower Tier Covered Transaction,"
Page 30 of 34
without modification, in all lower tier covered transactions and "" *
in all solicitations for lower tier covered transactions.
XII. CERTIFICATION REGARDING USE OF CONTRACT
g. A participant in a covered transaction may rely upon a FUNDS OR LOBBYING
certification of a prospective participant in a lower her covered
transaction that is not debarred, suspended, ineligible, or (Applicable to all Federal -aid construction contracts and to all
voluntarily excluded from the covered transaction, unless it related subcontracts which exceed $100,000 - 49 CFR 20)
knows that the certification is erroneous. A participant may
decide the method and frequency by which it determines the 1. The prospective participant certifies, by signing and
eligibility of its principals. Each participant may, but is not submitting this bid or proposal, to the best of his or her
required to, check the Nonprocurement List. knowledge and belief, that:
h. Nothing contained in the foregoing shall be construed a. No Federal appropriated funds have been paid or will
to require establishment of a system of records in order to be paid, by or on behalf of the undersigned, to any person for
render in good faith the certification required by this clause. influencing or attempting to influence an officer or employee of
The knowledge and infomtation of participant is not required to any Federal agency, a Member of Congress, an officer or
exceed that which is normally possessed by a prudent person employee of Congress, or an employee of a Member of
in the ordinary course of business dealings. Congress in connection with the awarding of any Federal
contract, the making of any Federal grant, the making of any
I. Except for transactions authorized under paragraph e Federal loan, the entering into of any cooperative agreement,
of these instructions, if a participant in a covered transaction and the extension, continuation, renewal, amendment, or
knowingly enters into a lower tier covered transaction with a modification of any Federal contract, grant, loan, or cooperative
person who is suspended, debarred, Ineligible, or voluntarily agreement.
excluded from participation in this transaction, in addition to
other remedies available to the Federal Government, the b. If any funds other than Federal appropriated funds
department or agency with which this transaction originated have been paid or will be paid to any person for influencing or
may pursue available remedies, including suspension and/or attempting to influence an officer or employee ot any Federal
debarment. agency, a Member of Congress, an officer or employee of
Congress, or an employee of a Member of Congress in
connection with this Federal contract, grant, loan, or
cooperative agreement, the undersigned shall complete and
submit Standard Form -LLL, "Disclosure Form to Report
Certification Regarding Debarment, Suspension, Lobbying," in accordance with its instructions.
Ineligibility and Voluntary Exclusion —Lower Tier Covered
Transactions: 2. This certification is a material representation of fact upon
which reliance was placed when this transaction was made or
1. The prospective lower tier participant certifies, by entered into. Submission of this certification is a prerequisite
submission of this proposal, that neither it nor its principals is for making or entering into this transaction imposed by 31
presently debarred, suspended, proposed for debarment, U.S.C. 1352. Any person who fails to file the required
declared ineligible, or voluntarily excluded from participation in certification shall be subject to a civil penalty of not less than
this transaction by any Federal department or agency. $10,000 and not more than $100,000 for each such failure.
2. Where the prospective lower tier participant is unable to 3. The prospective participant also agrees by submitting his or
certify to any ot the statements in this certification, such her bid or proposal that he or she shall require that the
prospective participant shall attach an explanation to this language of this certification be included in all lower tier
proposal. subcontracts, which exceed $100,000 and that all such
recipients shall certify and disclose accordingly.
Page 31 of 34
EXHIBIT D- FEDERAL REQUIREMENTS
FEDERAL REOUIREMENTS
Federal laws and regulations that may be applicable to the Work include:
A. The "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and
Local Governments (Common Rule), at 49 Code of Federal Regulations, Part 18, except to the
extent that other applicable federal requirements (including the provisions of 23 CFR Parts
172 or 633 or 635) are more specific than provisions of Part 18 and therefore supersede such
Part 18 provisions. The requirements of 49 CFR 18 include, without limitation:
1. the Sub Grantee/Contractor shall follow applicable procurement procedures, as required by
section 18.36(d);
2. the Sub Grantee /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 Sub Grantee /Contractor shall comply with section 18.37 concerning any subgrants;
4. to expedite any CDOT approval, the Sub Grantee /Contractor's attorney, or other authorized
representative, shall also submit a letter to CDOT certifying Local Agency /Contractor
compliance with section 18.30 changes procedures, and with I8.36(d) procurement procedures,
and with 18.37 subgrant procedures, as applicable;
5. the Sub Grantee /Contractor shall incorporate the specific contract provisions described in
18.360) (which are also deemed incorporated herein) into any subcontract(s) for such services
as terms and conditions of those subcontracts.
B. Executive Order 11246 of September 24, 1965 entitled "Equal Employment Opportunity," as
amended by Executive Order 11375 of October 13, 1967 and as supplemented in Department of
Labor regulations (41 CFR Chapter 60) (All construction contracts awarded in excess of $10,000
by grantees and their contractors or subgrantees).
C. The Copeland "Anti- Kickback" Act (18 U.S.C. 874) as supplemented in Department of Labor
regulations (29 CFR Part 3) (All contracts and subgrants for construction or repair).
D. The Davis -Bacon Act (40 U.S.C. 276a to a -7) as supplemented by Department of Labor
regulations (29 CFR Part 5) (Construction contracts in excess of $2,000 awarded by grantees and
subgrantees when required by Federal grant program legislation. This act requires that all laborers
and mechanics employed by contractors or sub - contractors to work on construction projects
financed by federal assistance must be paid wages not less than those established for the locality of
the project by the Secretary of Labor).
E. Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327 -330)
as supplemented by Department of Labor regulations (29 CFR Part 5). (Construction contracts
awarded by grantees and subgrantees in excess of $2,000, and in excess of $2,500 for other
contracts which involve the employment of mechanics or laborers).
F. Standards, orders, or requirements issued under section 306 of the Clear Air Act (42 U.S.C.
1857(h), section 508 of the Clean Water Act (33 U.S.C. 1368). Executive Order 11738, and
Environmental Protection Agency regulations (40 CFR Part 15) (contracts, subcontracts, and
subgrants of amounts in excess of $100,000).
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G. Mandatory standards and policies relating to energy efficiency which are contained in the state
energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub.
L. 94 -163).
H. Office of Management and Budget Circulars A -87, A -21 or A -122, and A -102 or A -110,
whichever is applicable.
I. The Hatch Act (5 USC 1501 -1508) and Public Law 95-454 Section 4728. These statutes state that
federal funds cannot be used for partisan political purposes of any kind by any person or
organization involved in the administration of federally- assisted programs.
J. 42 USC 6101 et seq. 42 USC 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 origin, age,
or handicap, be excluded from participation in or be subjected to discrimination in any program or
activity funded, in whole or part, by federal funds;
K. The Americans with Disabilities Act (Public Law 101 -336; 42 USC 12101, 12102, 12111-12117,
12131- 12134, 12141- 12150, 12161- 12165, 12181 - 12189, 12201 -12213 47 USC 225 and 47 USC
611.
L. The Uniform Relocation Assistance and Real Property Acquisition Policies Act, as amended
(Public Law 91 -646, as amended and Public Law 100 -17, 101 Stat. 246 -256). (If the contractor is
acquiring real property and displacing households or businesses in the performance of this
contract.)
M. The Drug -Free Workplace Act (Public Law 100 -690 Title V, subtitle D, 41 USC 701 et seq.).
N. The Age Discrimination Act of 1975, 42 U.S.C. Sections 6101 et. seq. and its implementing
regulation, 45 C.F.R. Part 91; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, as
amended, and 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, concerning "Required Contract Provisions for Federal -Aid Construction
Contracts ".
Q. 23 C.F.R. Part 635, concerning "Construction and Maintenance Provisions ".
R. Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973. The
requirements for which are shown in the Nondiscrimination Provisions, which are attached hereto
and made a part hereof.
S. Nondiscrimination Provisions:
In compliance with Title VI of the Civil Rights Act of 1964 and with Section 162(a) of the Federal
Aid Highway Act of 1973, the Contractor, for itself, its assignees and successors in interest, agree
as follows:
1. Compliance with Regulations. The Contractor will comply with the Regulations of the
Department of Transportation relative to nondiscrimination in Federally assisted programs of
the Department of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafter
referred to as the "Regulations "), which are herein incorporated by reference and made a part
of this contract.
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2. Nondiscrimination. The Contractor, with regard to the work performed by it after award and
prior to completion of the contract work, will not discriminate on the ground of race, color,
sex, mental or physical handicap or national origin in the selection and retention of
Subcontractors, including procurement of materials and leases of equipment. The Contractor
will not participate either directly or indirectly in the discrimination prohibited by Section 21.5
of the Regulations, including employment practices when the contract covers a program set
forth in Appendix C of the Regulations.
3. Solicitations for Subcontracts, Including Procurement of Materials and Equipment. In all
solicitations either by competitive bidding or negotiation made by the Contractor for work to
be performed under a subcontract, including procurement of materials or equipment, each
potential Subcontractor or supplier shall be notified by the Contractor of the Contractor's
obligations under this contract and the Regulations relative to nondiscrimination on the ground
of race, color, sex, mental or physical handicap or national origin.
4. Information and Reports. The Contractor will provide all information and reports required by
the Regulations, or orders and instructions issued pursuant thereto and will permit access to its
books, records, accounts, other sources of information and its facilities as may be determined
by the State or the FHWA to be pertinent to ascertain compliance with such Regulations,
orders and instructions. Where any information required of the Contractor is in the exclusive
possession of another who fails or refuses to furnish this information, the Contractor shall so
certify to the State, or the FHWA as appropriate and shall set forth what efforts have been
made to obtain the information.
5. Sanctions for Noncompliance. In the event of the Contractor's noncompliance with the
nondiscrimination provisions of this contract, the State shall impose such contract sanctions as
it or the FHWA may determine to be appropriate, including, but not limited to:
a. Withholding of payments to the Contractor under the contract until the Contractor
complies, and/or;
b. Cancellation, termination or suspension of the contract, in whole or in part.
6. Incorporation of Provisions. The Contractor will include the provisions of paragraphs A through F in
every subcontract, including procurement of materials and leases of equipment, unless exempt by the
Regulations, orders, or instructions issued pursuant thereto. The Contractor will take such action with
respect to any subcontract or procurement as the State or the FHWA may direct as a means of
enforcing such provisions including sanctions for noncompliance; provided, however, that, in the event
the Contractor becomes involved in, or is threatened with, litigation with a Subcontractor or supplier as
a result of such direction, the Contractor may request the State to enter into such litigation to protect
the interest of the State and in addition, the Contractor may request the FHWA to enter into such
litigation to protect the interests of the United States.
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