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agenda.council.regular.20180625
CITY COUNCIL AGENDA June 25, 2018 5:00 PM I. Call to Order II. Roll Call III. Scheduled Public Appearances IV. Citizens Comments & Petitions (Time for any citizen to address Council on issues NOT scheduled for a public hearing. Please limit your comments to 3 minutes) V. Special Orders of the Day a) Councilmembers' and Mayor's Comments b) Agenda Amendments c) City Manager's Comments d) Board Reports VI. Consent Calendar (These matters may be adopted together by a single motion) a) Resolution #80, Series of 2018 - Congestion Mitigation Air Quality (CMAQ) Grant Agreement b) Resolution # 94 & 95, Series of 2018 - Development Inspection Contract with PVCMI and Merrick & Company c) Resolution #98, Series of 2018 - Contract Approval for WWE for the Garmisch Street Stormwater Master Plan d) Resolution #96, Series of 2018 - Contract Extension for Shift e) Resolution #58, Series of 2018 - General Services Agreement Approval for Redi Services for Stormwater Mainline Cleaning Services f) Minutes - June 11, 2018 VII. Notice of Call-Up VIII. First Reading of Ordinances IX. Public Hearings X. Action Items a) Resolution #97, Series of 2018 - Soldner Property Conservation Easement XI. Adjournment Next Regular Meeting July 09, 2018 COUNCIL’S ADOPTED GUIDELINES · Make Decisions Based on 30 Year Vision · Tone and Tenor Matter · Remember Where We’re Living and Why We’re Here P1 COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M. P2 MEMORANDUM TO: Mayor and City Council FROM: John Krueger and Lynn Rumbaugh, Transportation THRU: R. Barry Crook, Assistant City Manager DATE OF MEMO: June 12, 2018 DATE OF MEETING: June 25, 2018 RE: Resolution #80, Series of 2018 - Approval of CMAQ Grant Agreement SUMMARY Staff is requesting approval of Resolution 80 series 2018, authorizing the City Manager to sign and execute the attached Intergovernmental Agreement (IGA) between the Colorado Department of Transportation and the City of Aspen, accepting Congestion Mitigation Air Quality (CMAQ) grant funds. This grant agreement is for the purchase of bike share station equipment for the purpose of extending WE-cycle stations to areas not currently served. The total grant awarded is $180,000.00 with a State share of $149,022.00 and a local match totaling $30,978.00, half of which will be the responsibility of Pitkin County. PREVIOUS COUNCIL ACTION City Council has provided support to bike sharing and the WE-cycle bike share program since the system’s inception. This support has come in the form of right-of- way usage, purchase of station equipment, operational funding and temporary office space. Most recently, as part of the 2018 budget process, City Council approved a formalized service agreement with WE-cycle for a total of $145,000.00. P3 VI.a BACKGROUND City Council approval of the attached resolution will allow the City Manager to accept the CMAQ grant agreement between the City of Aspen and CDOT for the purchase of bike share station equipment. In the 1980’s, the City of Aspen was designated by EPA as a non-attainment area for PM-10 (particulate pollution sized 10 microns or less). Since then the City adopted several measures, including expanding the second-largest mass transit system in Colorado, paid parking, an extensive bicycle/pedestrian trail system, carpool incentives and a car share program. These measures helped the City of Aspen become a PM-10 maintenance area on July 14, 2003. As a maintenance area, The City of Aspen is eligible to apply for CMAQ funding. Recent CMAQ awards have been used to purchase carshare vehicles and carpool matching software. In 2011, the City of Aspen and Pitkin County were jointly awarded CMAQ funds for the purchase of bike share station equipment that helped to launch the WE-cycle program. DISCUSSION The attached grant agreement represents a joint award to the City of Aspen and Pitkin County, with the County relinquishing its award to the City of Aspen. The grant, if accepted, will be awarded to and managed by the City of Aspen, with half of the match being the responsibility of Pitkin County. With the $180,000.00 in grant funding, staff will purchase approved station equipment to expand the WE-cycle system to unserved areas in Aspen and the AABC. The City and County will retain ownership of their equipment relative to respective grant contributions. Final locations will be determined via conversations between WE-cycle and the appropriate entities, taking into account outreach and customer requests. Based on grant and manufacturing lead times, it is assumed that the new equipment will be obtained and utilized in the 2019 season. With Council approval of this grant agreement and project, staff will return soon with a contract between the City of Aspen and PBSC Urban Solutions, the manufacturer of WE-cycle’s existing equipment. This vendor was selected via a rigorous RFP process in 2012 and has received a sole-source status via the CMAQ grant award process due to the need for all WE-cycle station equipment to be compatible and interchangeable. P4 VI.a FINANCIAL IMPLICATIONS Financial implications related to this grant agreement are detailed below. Funding for the grant is not included in the 2018 budget. Should Council approve this contract, staff will include the funds in the 2019 Transportation budget in the amount of $180,000 for the full expenditure with reimbursement from CDOT for $149,022, half of the local match from Pitkin County for $15,489 and a net expenditure/local match to the City of $15,489. Federal Share/CDOT City of Aspen Match Pitkin County Match Total $149,022.00 $15,489.00 $15,489.00 $180,000.00 ENVIRONMENTAL IMPLICATIONS The purchase of equipment needed to expand the WE-cycle program directly relates to the City’s goal of keeping traffic at 1993 levels while reducing PM-10 air and other air pollution through the encouragement of alternative transportation. RECOMMENDATION Staff recommends that City Council approve Resolution 80 series 2018 authorizing the City Manager to sign and execute the CMAQ Grant Agreement IGA between the State of Colorado and the City of Aspen. ALTERNATIVES Council could choose not to approve the attached resolution and reject the funding for the proposed project. PROPOSED MOTION “I move to approve Resolution 80 series 2018 authorizing the City Manager to sign and execute the CMAQ Grant Agreement IGA between the State of Colorado and the City of Aspen. CITY MANAGER COMMENTS: ATTACHMENTS P5 VI.a Attachment A: Resolution #80 series 2018 Attachment B: Contract Documents-CMAQ Grant Agreement IGA P6 VI.a RESOLUTION NO. 80 Series of 2018 A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING A CONGESTION MITIGATION AIR QUALITY (CMAQ) GRANT AGREEMENT BETWEEN THE CITY OF ASPEN, COLORADO, AND THE STATE OF COLORADO DEPARTMENT OF TRANSPORTATION, AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID DOCUMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, the City of Aspen seeks to improve air quality and reduce traffic congestion through a variety of transit programs; and WHEREAS the CMAQ grant agreement between the City of Aspen, Colorado and the State of Colorado is annexed hereto and made a part thereof; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COORADO: That the City Council of the City of Aspen hereby approves the Congestion Mitigation Air Quality grant agreement between the City of Aspen, Colorado, and the State of Colorado Department of Transportation, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 25th day of June 2018. _________________________ Steven Skadron, Mayor I, Linda Manning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held on the day hereinabove stated. ______________________ Linda Manning, City Clerk P7 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 1 of 25 STATE OF COLORADO INTERGOVERNMENTAL AGREEMENT Signature and Cover Page State Agency Department of Transportation Agreement Routing Number 18-HA3-ZH-00110 Local Agency CITY OF ASPEN Agreement Effective Date The later of the effective date or May 20, 2018 Agreement Description Aspen Bike Share PH2 Agreement Expiration Date 10 years from the effective date or execution of the Form 950 whichever is sooner Project # AQC M045- 016 (21931) Region # 3 Contract Writer JH Agreement Maximum Amount $180,000.00 THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT Each person signing this Agreement represents and warrants that he or she is duly authorized to execute this Agreement and to bind the Party authorizing his or her signature. LOCAL AGENCY CITY OF ASPEN ___________________________________________ Signature ___________________________________________ By: (Print Name and Title) Date: _________________________ STATE OF COLORADO John W. Hickenlooper, Governor Department of Transportation Michael P. Lewis, Executive Director ___________________________________________ Joshua Laipply, P.E., Chief Engineer Date: _________________________ 2nd State or Local Agency Signature if Needed ___________________________________________ Signature ___________________________________________ By: (Print Name and Title) Date: _________________________ LEGAL REVIEW Cynthia H. Coffman, Attorney General ___________________________________________ Assistant Attorney General ___________________________________________ By: (Print Name and Title) Date: _________________________ In accordance with §24-30-202 C.R.S., this Agreement is not valid until signed and dated below by the State Controller or an authorized delegate. STATE CONTROLLER Robert Jaros, CPA, MBA, JD By:___________________________________________ Department of Transportation Effective Date:_____________________ P8 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 2 of 25 TABLE OF CONTENTS 1. PARTIES ................................................................................................................................................. 2 2. TERM AND EFFECTIVE DATE ........................................................................................................... 2 3. AUTHORITY .......................................................................................................................................... 3 4. PURPOSE ............................................................................................................................................... 3 5. DEFINITIONS ........................................................................................................................................ 4 6. STATEMENT OF WORK ...................................................................................................................... 6 7. PAYMENTS ........................................................................................................................................... 9 8. REPORTING - NOTIFICATION ......................................................................................................... 13 9. LOCAL AGENCY RECORDS ............................................................................................................. 14 10. CONFIDENTIAL INFORMATION-STATE RECORDS .................................................................... 15 11. CONFLICT OF INTEREST .................................................................................................................. 15 12. INSURANCE ........................................................................................................................................ 16 13. BREACH ............................................................................................................................................... 17 14. REMEDIES ........................................................................................................................................... 18 15. DISPUTE RESOLUTION ..................................................................................................................... 19 16. NOTICES AND REPRESENTATIVES ............................................................................................... 19 17. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION ...................................................... 20 18. GOVERNMENTAL IMMUNITY ........................................................................................................ 21 19. STATEWIDE CONTRACT MANAGEMENT SYSTEM ................................................................... 21 20. GENERAL PROVISIONS .................................................................................................................... 21 21. COLORADO SPECIAL PROVISIONS ............................................................................................... 23 22. FEDERAL REQUIREMENTS ............................................................................................................. 24 23. DISADVANTAGED BUSINESS ENTERPRISE (DBE) ..................................................................... 24 24. DISPUTES ............................................................................................................................................ 25 EXHIBIT A, STATEMENT OF WORK EXHIBIT B, SAMPLE OPTION LETTER EXHIBIT C, FUNDING PROVISIONS EXHIBIT D, LOCAL AGENCY RESOLUTION EXHIBIT E, LOCAL AGENCY AGREEMENT ADMINISTRATION CHECKLIST EXHIBIT F, CERTIFICATION FOR FEDERAL-AID AGREEMENTS EXHIBIT G, DISADVANTAGED BUSINESS ENTERPRISE EXHIBIT H, LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES EXHIBIT I, FEDERAL-AID AGREEMENT PROVISIONS FOR CONSTRUCTION AGREEMENTS EXHIBIT J, ADDITIONAL FEDERAL REQUIREMENTS EXHIBIT K, FFATA SUPPLEMENTAL FEDERAL PROVISIONS EXHIBIT L, SAMPLE SUBRECIPIENT MONITORING AND RISK ASSESSMENT FORM EXHIBIT M, OMB UNIFORM GUIDANCE FOR FEDERAL AWARDS 1. PARTIES This Agreement is entered into by and between Local Agency named on the Signature and Cover Page for this Agreement (“Local Agency”), and the STATE OF COLORADO acting by and through the State agency named on the Signature and Cover Page for this Agreement (the “State” or “CDOT”). Local Agency and the State agree to the terms and conditions in this Agreement. 2. TERM AND EFFECTIVE DATE A. Effective Date This Agreement shall not be valid or enforceable until the Effective Date, and Agreement Funds shall be expended within the dates shown in Exhibit C for each respective phase (“Phase Performance Period(s)”). The State shall not be bound by any provision of this Agreement before the Effective Date, and shall have no obligation to pay Local Agency for any Work performed or expense incurred before 1) the Effective Date of this original Agreement; 2) before the encumbering document for the respective phase and the official Notice to Proceed for the respective phase; or 3) after the Final Phase Performance P9 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 3 of 25 End Date, as shown in Exhibit C. B. Initial Term The Parties’ respective performances under this Agreement shall commence on the Agreement Effective Date shown on the Signature and Cover Page for this Agreement and shall terminate on the date of notice of CDOT final acceptance (“Agreement Expiration Date”) shown on the Signature and Cover Page for this Agreement, unless sooner terminated or further extended in accordance with the terms of this Agreement. C. Early Termination in the Public Interest The State is entering into this Agreement to serve the public interest of the State of Colorado as determined by its Governor, General Assembly, or Courts. If this Agreement ceases to further the public interest of the State, the State, in its discretion, may terminate this Agreement in whole or in part. This subsection shall not apply to a termination of this Agreement by the State for breach by Local Agency, which shall be governed by §14.A.i. i. Method and Content The State shall notify Local Agency of such termination in accordance with §16. The notice shall specify the effective date of the termination and whether it affects all or a portion of this Agreement. ii. Obligations and Rights Upon receipt of a termination notice for termination in the public interest, Local Agency shall be subject to §14.A.i.a iii. Payments If the State terminates this Agreement in the public interest, the State shall pay Local Agency an amount equal to the percentage of the total reimbursement payable under this Agreement that corresponds to the percentage of Work satisfactorily completed and accepted, as determined by the State, less payments previously made. Additionally, if this Agreement is less than 60% completed, as determined by the State, the State may reimburse Local Agency for a portion of actual out -of- pocket expenses, not otherwise reimbursed under this Agreement, incurred by Local Agency which are directly attributable to the uncompleted portion of Local Agency’s obligations, provided that the sum of any and all reimbursement shall not exceed the maximum amount paya ble to Local Agency hereunder. 3. AUTHORITY Authority to enter into this Agreement exists in the law as follows: A. Federal Authority Pursuant to Title I, Subtitle A, of the “Fixing America’s Surface Transportation Act” (FAST Act) of 2015, and to applicable provisions of Title 23 of the United States Code and implementing regulations at Title 23 of the Code of Federal Regulations, as may be amended, (collectively referred to hereinafter as the “Federal Provisions”), certain federal funds have been and are expected to continue to be allocated for transportation projects requested by Local Agency and eligible under the Surface Transportation Improvement Program that has been proposed by the State and approved by the Federal Highway Administration (“FHWA”). B. State Authority Pursuant to CRS §43-1-223 and to applicable portions of the Federal Provisions, the State is responsible for the general administration and supervision of performance of projects in the Program, including the administration of federal funds for a Program project performed by a Local Agency under a contract with the State. This Agreement is executed under the authority of CRS §§29-1-203, 43-1-110; 43-1-116, 43-2-101(4)(c) and 43-2-104.5. 4. PURPOSE The purpose of this Agreement is to disburse Federal funds to the Local Agency pursuant to CDOT’s Stewardship Agreement with the FHWA. P10 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 4 of 25 5. DEFINITIONS The following terms shall be construed and interpreted as follows: A. “Agreement” means this agreement, including all attached Exhibits, all documents incorporated by reference, all referenced statutes, rules and cited authorities, and any future modifications thereto. B. “Agreement Funds” means the funds that have been appropriated, designated, encumbered, or otherwise made available for payment by the State under this Agreement. C. “Award” means an award by a Recipient to a Subrecipient funded in whole or in part by a Federal Award. The terms and conditions of the Federal Award flow down to the Award unless the terms and conditions of the Federal Award specifically indicate otherwise. D. “Budget” means the budget for the Work described in Exhibit C. E. “Business Day” means any day in which the State is open and conducting business, but shall not include Saturday, Sunday or any day on which the State obse rves one of the holidays listed in §24-11-101(1) C.R.S. F. “Consultant” means a professional engineer or designer hired by Local Agency to design the Work Product. G. “Contractor” means the general construction contractor hired by Local Agency to construct the Work. H. “CORA” means the Colorado Open Records Act, §§24 -72-200.1 et. seq., C.R.S. I. “Effective Date” means the date on which this Agreement is approved and signed by the Colorado State Controller or designee, as shown on the Signature and Cover Pag e for this Agreement. J. “Evaluation” means the process of examining Local Agency’s Work and rating it based on criteria established in §6, Exhibit A and Exhibit E. K. “Exhibits” means the following exhibits attached to this Agreement: i. Exhibit A, Statement of Work. ii. Exhibit B, Sample Option Letter. iii. Exhibit C, Funding Provisions iv. Exhibit D, Local Agency Resolution v. Exhibit E, Local Agency Contract Administration Checklist vi. Exhibit F, Certification for Federal-Aid Contracts vii. Exhibit G, Disadvantaged Business Enterprise viii. Exhibit H, Local Agency Procedures for Consultant Services ix. Exhibit I, Federal-Aid Contract Provisions for Construction Contracts x. Exhibit J, Additional Federal Requirements xi. Exhibit K, The Federal Funding Accountability and Transparency Act of 2006 (FFATA) Supplemental Federal Provisions xii. Exhibit L, Sample Sub-Recipient Monitoring and Risk Assessment Form xiii. Exhibit M, Supplemental Provisions for Federal Awards Subject to The Office of Management and Budget Uniform Administrative Requirements, Cost principles, and Audit Requirements for Federal Awards (the “Uniform Guidance”) L. “Federal Award” means an award of Federal financial assistance or a cost-reimbursement contract under the Federal Acquisition Requirements by a Federal Awarding Agency to a Recipient. “Federal Award” also means an agreement setting forth the terms and conditions of the Federal Award. The term does not include payments to a contractor or payments to an individual that is a beneficiary of a Federal program. P11 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 5 of 25 M. “Federal Awarding Agency” means a Federal agency providing a Federal Award to a Recipient. N. “FHWA” means the Federal Highway Administration, which is one of the twelve administrations under the Office of the Secretary of Transportation at the U.S. Department of Transportation. FHWA provides stewardship over the construction, maintenance and preservation of the Nation’s highways and tunnels. FHWA is the Federal Awarding Agency for the Federal Award which is the subject of th is Agreement. O “Goods” means any movable material acquired, produced, or delivered by Local Agency as set forth in this Agreement and shall include any movable material acquired, produced, or delivered by Local Agency in connection with the Services. P. “Incident” means any accidental or deliberate event that results in or constitutes an imminent threat of the unauthorized access or disclosure of State Confidential Information or of the unauthorized modification, disruption, or destruction of any State Rec ords. Q. “Initial Term” means the time period defined in §2.B R. “Notice to Proceed” means the letter issued by the State to the Local Agency stating the date the Local Agency can begin work subject to the conditions of this Agreement. S. “OMB” means the Executive Office of the President, Office of Management and Budget. T. “Oversight” means the term as it is defined in the Stewardship Agreement between CDOT and the FHWA. U. “Party” means the State or Local Agency, and “Parties” means both the State and Local Agency. V. “PII” means personally identifiable information including, without limitation, any information maintained by the State about an individual that can be used to distinguish or trace an individual‘s identity, such as name, social security number, date and place of birth, mother‘s maiden name, or biometric records; and any other information that is linked or linkable to an individual, such as medical, educational, financial, and employment information. PII includes, but is not limited to, all i nformation defined as personally identifiable information in §24-72-501 C.R.S. W. “Recipient” means the Colorado Department of Transportation (CDOT) for this Federal Award. X. “Services” means the services to be performed by Local Agency as set forth in this Agreement, and shall include any services to be rendered by Local Agency in connection with the Goods. Y. “State Confidential Information” means any and all State Records not subject to disclosure under CORA. State Confidential Information shall include, but is not limited to, PII and State personnel records not subject to disclosure under CORA. Z. “State Fiscal Rules” means the fiscal rules promulgated by the Colorado State Controller pursuant to §24-30-202(13)(a). AA. “State Fiscal Year” means a 12 month period beginning on July 1 of each calendar year and ending on June 30 of the following calendar year. If a single calendar year follows the term, then it means the State Fiscal Year ending in that calendar year. BB. “State Purchasing Director” means the position described in the Colorado Procurement Code and its implementing regulations. CC. “State Records” means any and all State data, information, and records, regardless of physical form, including, but not limited to, information subject to disclosure under CORA. DD. “Subcontractor” means third-parties, if any, engaged by Local Agency to aid in performance of the Work. EE. “Subrecipient” means a non-Federal entity that receives a sub-award from a Recipient to carry out part of a Federal program, but does not include an individual that is a beneficiary of such program. A Subrecipient may also be a recipient of other Federal Awards directly from a Federal Awarding Agency. FF. “Uniform Guidance” means the Office of Management and Budget Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, which supersedes requirements from OMB Circulars A-21, A-87, A-110, A-122, A-89, A-102, and A-133, and the P12 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 6 of 25 guidance in Circular A-50 on Single Audit Act follow-up. GG. “Work” means the delivery of the Goods and performance of the Services in compliance with CDOT’s Local Agency Manual described in this Agreement. HH. “Work Product” means the tangible and intangible results of the Work, whether finished or unfinished, including drafts. Work Product includes, but is not limited to, documents, text, software (including source code), research, reports, proposals, specifications, plans, notes, studies, data, images, photographs, negatives, pictures, drawings, designs, models, surveys, maps, materials, ideas, concepts, know-how, and any other results of the Work. “Work Product” does not include any material that was developed prior to the Effective Date that is used, without modification, in the performance of the Work. Any other term used in this Agreement that is defined in an Exhibit shall be construed and interpreted as defined in that Exhibit. 6. STATEMENT OF WORK Local Agency shall complete the Work as described in this Agreement and in accordance with the provisions of Exhibit A, and the Local Agency Manual. The State shall have no liability to compensate Local Agency for the delivery of any Goods or the performance of any Services that are not specifically set forth in this Agreement. Work may be divided into multiple phases that have separate periods of performance. The State may not compensate for Work that Local Agency performs outside of its designated phase performance period. The performance period of phases, including, but not limited to Design, Construction, Right of Way, Ut ilities, or Environment phases, are identified in Exhibit C. The State may unilaterally modify Exhibit C from time to time, at its sole discretion, to extend the period of performance for a phase of Work authorized under this Agreement. To exercise this phase performance period extension option, the State will provide written notice to Local Agency in a form substantially equivalent to Exhibit B. The State’s unilateral extension of phase performance periods will not amend or alter in any way the funding provisions or any other terms specified in this Agreement, notwithstanding the options listed under §7.E A. Local Agency Commitments i. Design If the Work includes preliminary design, final design, design work sheets, or special provisions and estimates (collectively referred to as the “Plans”), Local Agency shall ensure that it and its Contractors comply with and are responsible for satisfying the following requirements: a. Perform or provide the Plans to the extent required by the nature o f the Work. b. Prepare final design in accordance with the requirements of the latest edition of the American Association of State Highway Transportation Officials (AASHTO) manual or other standard, such as the Uniform Building Code, as approved by the State. c. Prepare provisions and estimates in accordance with the most current version of the State’s Roadway and Bridge Design Manuals and Standard Specifications for Road and Bridge Construction or Local Agency specifications if approved by the State. d. Include details of any required detours in the Plans in order to prevent any interference of the construction Work and to protect the traveling public. e. Stamp the Plans as produced by a Colorado registered professional engineer. f. Provide final assembly of Plans and all other necessary documents. g. Ensure the Plans are accurate and complete. h. Make no further changes in the Plans following the award of the construction contract to Contractor unless agreed to in writing by the Parties. The Plans shall b e considered final when approved in writing by CDOT, and when final, they will be deemed incorporated herein. ii. Local Agency Work a. Local Agency shall comply with the requirements of the Americans With Disabilities Act (ADA) 42 U.S.C. § 12101, et. seq., and applicable federal regulations and standards as contained in the document “ADA Accessibility Requirements in CDOT Transportation P13 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 7 of 25 Projects”. b. Local Agency shall afford the State ample opportunity to review the Plans and shall make any changes in the Plans that are directed by the State to comply with FHWA requirements. c. Local Agency may enter into a contract with a Consultant to perform all or any portion of the Plans and/or construction administration. Provided, however, if federal-aid funds are involved in the cost of such Work to be done by such Consultant, such Consultant contract (and the performance provision of the Plans under the contract) must comply with all applicable requirements of 23 C.F.R. Part 172 and with any procedures implementing those requirements as provided by the State, including those in Exhibit H. If Local Agency enters into a contract with a Consultant for the Work: 1) Local Agency shall submit a certification that procurement of any Consultant contract complies with the requirements of 23 C.F.R. 172.5(1) prior to entering into such Consultant contract, subject to the State’s approval. If not approved by the State, Local Agency shall not enter into such Consultant contract. 2) Local Agency shall ensure that all changes in the Consultant contract have prior approval by the State and FHWA and that they are in writing. Immediately after the Consultant contract has been awarded, one copy of the executed Consultant contract and any amendments shall be submitted to the State. 3) Local Agency shall require that all billings under the Consultant contract comply with the State’s standardized billing format. Examples of the billing formats are available from the CDOT Agreements Office. 4) Local Agency (and any Consultant) shall comply with 23 C.F.R. 172.5(b) and (d) and use the CDOT procedures described in Exhibit H to administer the Consultant contract. 5) Local Agency may expedite any CDOT approval of its procurement process and/or Consultant contract by submitting a letter to CDOT from Local Agency’s attorney/authorized representative certifying compliance with Exhibit H and 23 C.F.R. 172.5(b)and (d). 6) Local Agency shall ensure that the Consultant contract complies with the requirements of 49 CFR 18.36(i) and contains the following language verbatim: (a) The design work under this Agreement shall be compatible with the requirements of the contract between Local Agency and the State (which is incorporated herein by this reference) for the design/construction of the project. The State is an intended third- party beneficiary of this agreement for that purpose. (b) Upon advertisement of the project work for construction, the consultant shall make available services as requested by the State to assist the State in the evaluation of construction and the resolution of construction problems that may arise during the construction of the project. (c) The consultant shall review the construction Contractor’s shop drawings for conformance with the contract documents and compliance with the provisions of the State’s publication, Standard Specifications for Road and Bridge Construction, in connection with this work. (d) The State, in its sole discretion, may review construction plans, special provisions and estimates and may require Local Agency to make such changes therein as the State determines necessary to comply with State and FHWA requirements. iii. Construction If the Work includes construction, Local Agency shall perform the construction in accordance with the approved design plans and/or administer the construction in accordance with Exhibit E. Such administration shall include Work inspection and testing; approving sources of materials; performing required plant and shop inspections; documentation of contract payments, testing and inspection activities; preparing and approving pay estimates; preparing, approving and securing the funding for contract modification orders and minor contract revisions; processing construction Contractor claims; construction supervision; and meeting the quality control requirements of the FHWA/CDOT Stewardship Agreement, as described in Exhibit E. P14 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 8 of 25 a. The State may, after providing written notice of the reason for the suspension to Local Agency, suspend the Work, wholly or in part, due to the failure of Local Agency or its Contractor to correct conditions which are unsafe for workers or for such periods as the State may deem necessary due to unsuitable weather, or for conditions considered unsuitable for the prosecution of the Work, or for any other condition or reason deemed by the State to be in the public interest. b. Local Agency shall be responsible for the following: 1) Appointing a qualified professional engineer, licensed in the State of Colorado, as Local Agency Project Engineer (LAPE), to perform engineering administration. The LAPE shall administer the Work in accordance with this Agreement, the requirements of the construction contract and applicable State procedures, as defined in the CDOT Local Agency Manual (https://www.codot.gov/business/designsupport/bulletins_manuals/2006 - local-agency-manual). 2) For the construction Services, advertising the call for bids, following its approval by the State, and awarding the construction contract(s) to the lowest responsible bidder(s). (a) All Local Agency’s advertising and bid awards pursuant to this Agreement shall comply with applicable requirements of 23 U.S.C. §112 and 23 C.F.R. Parts 633 and 635 and C.R.S. § 24-92-101 et seq. Those requirements include, without limitation, that Local Agency and its Contractor(s) incorporate Form 1273 (Exhibit I) in its entirety, verbatim, into any subcontract(s) for Services as terms and conditions thereof, as required by 23 C.F.R. 633.102(e). (b) Local Agency may accept or reject the proposal of the apparent low bidder for Work on which competitive bids have been received. Local Agency must accept or reject such bids within 3 working days after they are publicly opened. (c) If Local Agency accepts bids and makes awards that exceed the amount of available Agreement Funds, Local Agency shall provide the additional funds necessary to complete the Work or not award such bids. (d) The requirements of §6.A.iii.b.2 also apply to any advertising and bid awards made by the State. (e) The State (and in some cases FHWA) must approve in advance all Force Account Construction, and Local Agency shall not initiate any such Services until the State issues a written Notice to Proceed. iv. Right of Way (ROW) and Acquisition/Relocation a. If Local Agency purchases a ROW for a State highway, including areas of influence, Local Agency shall convey the ROW to CDOT promptly upon the completion of the project/construction. b. Any acquisition/relocation activities shall comply with all applicable federal and State statutes and regulations, including but not limited to, the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, the Uniform Relocation Assistance and Real Property Acquisition Policies for Federal and Federally Assisted Programs, as amended (49 C.F.R. Part 24), CDOT’s Right of Way Manual, and CDOT’s Policy and Procedural Directives. c. The Parties’ respective responsibilities for ensuring compliance with acquisition, relocation and incidentals depend on the level of federal participation as detailed in CDOT’s Right of Way Manual (located at http://www.codot.gov/business/manuals/right-of-way); however, the State always retains oversight responsibilities. d. The Parties’ respective responsibilities at each level of federal participation in CDOT’s Right of Way Manual, and the State’s reimbursement of Local Agency costs will be determined pursuant the following categories: 1) Right of way acquisition (3111) for federal participation and non -participation; 2) Relocation activities, if applicable (3109); 3) Right of way incidentals, if applicable (expenses incidental to acquisition/relocation of right of way – 3114). P15 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 9 of 25 v. Utilities If necessary, Local Agency shall be responsible for obtaining the proper clearance or approval from any utility company that may become involved in the Work. Prior to the Work being advertised for bids, Local Agency shall certify in writing to the State that all such clearances have been obtained. vi. Railroads If the Work involves modification of a railroad company’s facilities and such modification will be accomplished by the railroad company, Local Agency shall make timely application to the Public Utilities Commission (“PUC”) requesting its order providing for the installation of the proposed improvements. Local Agency shall not proceed with that part of the Work before obtaining the PUC’s order. Local Agency shall also establish contact with the railroad company involved for the purpose of complying with applicable provisions of 23 C.F.R. 646, subpart B, concerning federal - aid projects involving railroad facilities, and: a. Execute an agreement with the railroad company setting out what work is to be accomplished and the location(s) thereof, and which costs shall be eligible for federal participation. b. Obtain the railroad’s detailed estimate of the cost of the Work. c. Establish future maintenance responsibilities for the proposed installation. d. Proscribe in the agreement the future use or dispositions of the proposed improvements in the event of abandonment or elimination of a grade crossing. e. Establish future repair and/or replacement responsibilities, as between the railroad company and the Local Agency, in the event of accidental destruction or damage to the installation. vii. Environmental Obligations Local Agency shall perform all Work in accordance with the requirements of current federal and State environmental regulations, including the National Environmental Policy Act of 1969 (NEPA) as applicable. viii. Maintenance Obligations Local Agency shall maintain and operate the Work constructed under this Agreement at its own cost and expense during their useful life, in a manner satisfactory to the State and FHWA. Local Agency shall conduct such maintenance and operations in accordance with all applicable statutes, ordinances, and regulations pertaining to maintaining such improvements. The State and FHWA may make periodic inspections to verify that such improvements are being adequately maintained. ix. Monitoring Obligations Local Agency shall respond in a timely manner to and participate fully with the monitoring activities described in §7.F.vi. B. State’s Commitments i. The State will perform a final project inspection of the Work as a quality control/assurance activity. When all Work has been satisfactorily completed, the State will sign the FHWA Form 1212. ii. Notwithstanding any consents or approvals given by the State for the Plans, the State sha ll not be liable or responsible in any manner for the structural design, details or construction of any Work constituting major structures designed by, or that are the responsibility of, Local Agency, as identified in Exhibit E. 7. PAYMENTS A. Maximum Amount Payments to Local Agency are limited to the unpaid, obligated balance of the Agreement Funds set forth in Exhibit C. The State shall not pay Local Agency any amount under this Agreement that exceeds the Agreement Maximum set forth in Exhibit C. B. Payment Procedures i. Invoices and Payment P16 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 10 of 25 a. The State shall pay Local Agency in the amounts and in accordance with conditions set forth in Exhibit C. b. Local Agency shall initiate payment requests by invoice to the State, in a form and manner approved by the State. c. The State shall pay each invoice within 45 days following the State’s receipt of that invoice, so long as the amount invoiced correctly represents Work completed by Local Agency and previously accepted by the State during the term that the invoice covers. If the State determines that the amount of any invoice is not correct, then Local Agency shall make all changes necessary to correct that invoice. d. The acceptance of an invoice shall not constitute acceptance of any Work performed or deliverables provided under the Agreement. ii. Interest Amounts not paid by the State within 45 days after the State’s acceptance of the invoice shall bear interest on the unpaid balance beginning on the 46th day at the rate of 1% per month, as required by §24-30-202(24)(a), C.R.S., until paid in full; provided, however, that interest shall not accrue on unpaid amounts that the State disputes in writing. Local Agency shall invoice the State separately for accrued interest on delinquent amounts, and the invoice shall reference the delinquent payment, the number of days interest to be paid and the interest rate. iii. Payment Disputes If Local Agency disputes any calculation, determination, or amount of any payment, Local Agency shall notify the State in writing of its dispute within 30 days following the earlier to occur of Local Agency’s receipt of the payment or notification of the determination or calculation of the payment by the State. The State will review the information presented by Local Agency and may make changes to its determination based on this review. The calculation, determination, or payment amount that results from the State’s review shall not be subject to additional dispute under this subsection. No payment subject to a dispute under this subsection shall be due until after the State has concluded its review, and the State shall not pay any interest on any amount during the period it is subject to dispute under this subsection. iv. Available Funds-Contingency-Termination The State is prohibited by law from making commitments beyond the term of the current State Fiscal Year. Payment to Local Agency beyond the current State Fiscal Year is contingent on the appropriation and continuing availability of Agreement Funds in any subsequent year (as provided in the Colorado Special Provisions). If federal funds or funds from any other non -State funds constitute all or some of the Agreement Funds, the State’s obligation to pay Local Agency shall be contingent upon such non-State funding continuing to be made available for payment. Payments to be made pursuant to this Agreement shall be made only from Agreement Funds, and the State’s liability for such payments shall be limited to the amount remaining of such Agreement Funds. If State, federal or other funds are not appropriated, or otherwise become unavailable to fund this Agreement, the State may, upon written notice, terminate this Agreement, in whole or in part, without incurring further liability. The State shall, however, remain obligated to pay for Services and Goods that are delivered and accepted prior to the effective date of notice of termination, and this termination shall otherwise be treated as if this Agreement were terminated in the public interest as described in §2.C v. Erroneous Payments The State may recover, at the State’s discretion, payments made to Local Agency in error for any reason, including, but not limited to, overpayments or improper payments, and unexpended or excess funds received by Local Agency. The State may recover such payments by deduction from subsequent payments under this Agreement, deduction from any payment due under any other contracts, grants or agreements between the State and Local Agency, or by any other appropriate method for collecting debts owed to the State. The close out of a Federal Award does not affect the right of FHWA or the State to disallow costs and recover funds on the basis of a later audit or other review. Any cost disallowance recovery is to be made within the Record Retention Period (as P17 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 11 of 25 defined below in §9.A.). C. Matching Funds Local Agency shall provide matching funds as provided in §7.A. and Exhibit C. Local Agency shall have raised the full amount of matching funds prior to the Effective Date and shall report to the State regarding the status of such funds upon request. Local Agency’s obligation to pay all or any part of any matching funds, whether direct or contingent, only extend to funds duly and lawfully appropriated for the purposes of this Agreement by the authorized representatives of Local Age ncy and paid into Local Agency’s treasury. Local Agency represents to the State that the amount designated “Local Agency Matching Funds” in Exhibit C has been legally appropriated for the purpose of this Agreement by its authorized representatives and paid into its treasury. Local Agency may evidence such obligation by an appropriate ordinance/resolution or other authority letter expressly authorizing Local Agency to enter into this Agreement and to expend its match share of the Work. A copy of any such ordinance/resolution or authority letter is attached hereto as Exhibit D. Local Agency does not by this Agreement irrevocably pledge present cash reserves for payments in future fiscal years, and this Agreement is not intended to create a multiple-fiscal year debt of Local Agency. Local Agency shall not pay or be liable for any claimed interest, late charges, fees, taxes, or penalties of any nature, except as required by Local Agency’s laws or policies. D. Reimbursement of Local Agency Costs The State shall reimburse Local Agency’s allowable costs, not exceeding the maximum total amount described in Exhibit C and §7. The applicable principles described in 2 C.F.R. Part 200 shall govern the State’s obligation to reimburse all costs incurred by Local Agency and submitted to the State for reimbursement hereunder, and Local Agency shall comply with all such principles. The State shall reimburse Local Agency for the federal-aid share of properly documented costs related to the Work after review and approval thereof, subject to the provisions of this Agreement and Exhibit C. Local Agency costs for Work performed prior to the Effective Date shall not be reimbursed absent specific allowance of pre-award costs and indication that the Federal Award funding is retroactive. Local Agency costs for Work performed after any Performance Period End Date for a respective phase of the Work, is not reimbursable. Allowable costs shall be: i. Reasonable and necessary to accomplish the Work and for the Goods and Services provided. ii. Actual net cost to Local Agency (i.e. the price paid minus any items of value received by Local Agency that reduce the cost actually incurred). E. Unilateral Modification of Agreement Funds Budget by State Option Letter The State may, at its discretion, issue an “Option Letter” to Local Agency to add or modify Work phases in the Work schedule in Exhibit C if such modifications do not increase total budgeted Agreement Funds. Such Option Letters shall amend and update Exhibit C, Sections 2 or 4 of the Table, and sub- sections B and C of the Exhibit C. Option Letters shall not be deemed valid until signed by the State Controller or an authorized delegate. Modification of Exhibit C by unilateral Option Letter is permitted only in the specific scenarios listed below. The State will exercise such options by providing Local Agency a fully executed Option Letter, in a form substantially equivalent to Exhibit B. Such Option Letters will be incorporated into this Agreement. i. Option to Begin a Phase and/or Increase or Decrease the Encumbrance Amount The State may require by Option Letter that Local Agency begin a new Work phase that may include Design, Construction, Environmental, Utilities, ROW Incidentals or Miscellaneous Work (but may not include Right of Way Acquisition/Relocation or Railroads) as detailed in Exhibit A. Such Option Letters may not modify the other terms and conditions stated in this Agreement, and must decrease the amount budgeted and encumbered for one or more other Work phases so that the total amount of budgeted Agreement Funds remains the same. The State may also issue a unilateral Option Letter to simultaneously increase and decrease the total encumbrance amount of two or more existing Work phases, as long as the total amount of budgeted Agreement Funds remains the same, replacing the original Agreement Funding exhibit (Exhibit C) with an updated Exhibit C-1 (with subsequent exhibits labeled C-2, C-3, etc.). ii. Option to Transfer Funds from One Phase to Another Phase. P18 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 12 of 25 The State may require or permit Local Agency to transfer Agreement Funds from one Work phase (Design, Construction, Environmental, Utilities, ROW Incidentals or Miscellaneous) to another phase as a result of changes to State, federal, and local match funding. In such case, the original funding exhibit (Exhibit C) will be replaced with an updated Exhibit C-1 (with subsequent exhibits labeled C-2, C-3, etc.) attached to the Option Letter. The Agreement Funds transferred from one Work phase to another are subject to the same terms and conditions stated in the original Agreement with the total budgeted Agreement Funds remaining the same. The State may unilaterally exercise this option by providing a fully executed Option Letter to Local Agency within thi rty (30) days before the initial targeted start date of the Work phase, in a form substantially equivalent to Exhibit B. iii. Option to Exercise Options i and ii. The State may require Local Agency to add a Work phase as detailed in Exhibit A, and encumber and transfer Agreement Funds from one Work phase to another. The original funding exhibit (Exhibit C) in the original Agreement will be replaced with an updated Exhibit C-1 (with subsequent exhibits labeled C-2, C-3, etc.) attached to the Option Letter. The addition of a Work phase and encumbrance and transfer of Agreement Funds are subject to the same terms and conditions stated in the original Agreement with the total budgeted Agreement Funds remaining the same. The State may unilaterally exercise this option by providing a fully executed Option Letter to Local Agency within 30 days before the initial targeted start date of the Work phase, in a form substantially equivalent to Exhibit B. iv. Option to Update a Work Phase Performance Period and/or modify information required under the OMB Uniform Guidance, as outlined in Exhibit C. The State may update any information contained in Exhibit C, Sections 2 and 4 of the Table, and sub-sections B and C of the Exhibit C. F. Accounting Local Agency shall establish and maintain accounting systems in accordance with generally accepted accounting standards (a separate set of accounts, or as a separate and integral part of its current accounting scheme). Such accounting systems shall, at a minimum, provide as follows : i. Local Agency Performing the Work If Local Agency is performing the Work, it shall document all allowable costs, including any approved Services contributed by Local Agency or subcontractors, using payrolls, time records, invoices, contracts, vouchers, and other applicable records. ii. Local Agency-Checks or Draws Checks issued or draws made by Local Agency shall be made or drawn against properly signed vouchers detailing the purpose thereof. Local Agency shall keep on file all checks, payrolls, invoices, contracts, vouchers, orders, and other accounting documents in the office of Local Agency, clearly identified, readily accessible, and to the extent feasible, separate and apart from all other Work documents. iii. State-Administrative Services The State may perform any necessary administrative support services required hereunder. Local Agency shall reimburse the State for the costs of any such services from the budgeted Agreement Funds as provided for in Exhibit C. If FHWA Agreement Funds are or become unavailable, or if Local Agency terminates this Agreement prior to the Work being approved by the State or otherwise completed, then all actual incurred costs of such services and assistance provided by the State shall be reimbursed to the State by Local Agency at its sole expense. iv. Local Agency-Invoices Local Agency’s invoices shall describe in detail the reimbursable costs incurred by Local Agency for which it seeks reimbursement, the dates such costs were incurred and the amounts thereof, and Local Agency shall not submit more than one invoice per month. v. Invoicing Within 60 Days P19 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 13 of 25 The State shall not be liable to reimburse Local Agency for any costs invoiced more than 60 days after the date on which the costs were incurred, including costs included in Local Agency’s final invoice. The State may withhold final payment to Local Agency at the State’s sole discretion until completion of final audit. Any costs incurred by Local Agency that are not allowable under 2 C.F.R. Part 200 shall be Local Agency’s responsibility, and the State will deduct such disallowed costs from any payments due to Local Agency. The State will not reimburse costs for Work performed after the Performance Period End Date for a respective Work phase. The State will not reimburse costs for Work performed prior to Performance Period End Date, but for which an invoice is received more than 60 days after the Performance Period End Date. vi. Risk Assessment & Monitoring Pursuant to 2 C.F.R. 200.331(b), – CDOT will evaluate Local Agency’s risk of noncompliance with federal statutes, regulations, and terms and conditions of this Agreement. Local Agency shall complete a Risk Assessment Form (Exhibit L) when that may be requested by CDOT. The risk assessment is a quantitative and/or qualitative determination of the potential for Local Agency’s non-compliance with the requirements of the Federal Award. The risk assessment will evaluate some or all of the following factors: 1. Experience: Factors associated with the experience and history of the Subrecipient with the same or similar Federal Awards or grants. 2. Monitoring/Audit: Factors associated with the results of the Subrecipient’s previous audits or monitoring visits, including those performed by the Federal Awarding Agency, when the Subrecipient also receives direct federal funding. Include audit results if Subrecipient receives single audit, where the specific award being assessed was selected as a major program. 3. Operation: Factors associated with the significant aspects of the Subrecipient’s operations, in which failure could impact the Subrecipient’s ability to perform and account for the contracted goods or services. 4. Financial: Factors associated with the Subrecipient’s financial stability and ability to comply with financial requirements of the Federal Award. 5. Internal Controls: Factors associated with safeguarding assets and resources, deterring and detecting errors, fraud and theft, ensuring accuracy and completeness of accounting data, producing reliable and timel y financial and management information, and ensuring adherence to its policies and plans. 6. Impact: Factors associated with the potential impact of a Subrecipient’s non -compliance to the overall success of the program objectives. 7. Program Management: Factors associated with processes to manage critical personnel, approved written procedures, and knowledge of rules and regulations regarding federal -aid projects. Following Local Agency’s completion of the Risk Assessment Tool (Exhibit L), CDOT will determine the level of monitoring it will apply to Local Agency’s performance of the Work. This risk assessment may be re-evaluated after CDOT begins performing monitoring activities. G. Close Out Local Agency shall close out this Award within 90 days after the Final P hase Performance End Date. Close out requires Local Agency’s submission to the State of all deliverables defined in this Agreement, and Local Agency’s final reimbursement request or invoice. The State will withhold 5% of allowable costs until all final documentation has been submitted and accepted by the State as substantially complete. If FHWA has not closed this Federal Award within 1 year and 90 days after the Final Phase Performance End Date due to Local Agency’s failure to submit required documentati on, then Local Agency may be prohibited from applying for new Federal Awards through the State until such documentation is submitted and accepted. 8. REPORTING - NOTIFICATION A. Quarterly Reports In addition to any reports required pursuant to §19 or pursuant to any exhibit, for any contract having a term longer than 3 months, Local Agency shall submit, on a quarterly basis, a written report specifying P20 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 14 of 25 progress made for each specified performance measure and standard in this Agreement. Such progres s report shall be in accordance with the procedures developed and prescribed by the State. Progress reports shall be submitted to the State not later than five (5) Business Days following the end of each calendar quarter or at such time as otherwise specified by the State. B. Litigation Reporting If Local Agency is served with a pleading or other document in connection with an action before a court or other administrative decision making body, and such pleading or document relates to this Agreement or may affect Local Agency’s ability to perform its obligations under this Agreement, Local Agency shall, within 10 days after being served, notify the State of such action and deliver copies of such pleading or document to the State’s principal representative identified in §16. C. Performance and Final Status Local Agency shall submit all financial, performance and other reports to the State no later than 60 calendar days after the Final Phase Performance End Date or sooner termination of this Agreement, containing an Evaluation of Subrecipient’s performance and the final status of Subrecipient’s obligations hereunder. D. Violations Reporting Local Agency must disclose, in a timely manner, in writing to the State and FHWA, all violations of federal or State criminal law involving fraud, bribery, or gratuity violations potentially affecting the Federal Award. Penalties for noncompliance may include suspension or debarment (2 CFR Part 180 and 31 U.S.C. 3321). 9. LOCAL AGENCY RECORDS A. Maintenance Local Agency shall make, keep, maintain, and allow inspection and monitoring by the State of a complete file of all records, documents, communications, notes and other written materials, electronic media files, and communications, pertaining in any manner to the Work or the de livery of Services (including, but not limited to the operation of programs) or Goods hereunder. Local Agency shall maintain such records for a period (the “Record Retention Period”) of three years following the date of submission to the State of the final expenditure report, or if this Award is renewed quarterly or annually, from the date of the submission of each quarterly or annual report, respectively. If any litigation, claim, or audit related to this Award starts before expiration of the Record Retention Period, the Record Retention Period shall extend until all litigation, claims, or audit findings have been resolved and final action taken by the State or Federal Awarding Agency. The Federal Awarding Agency, a cognizant agency for audit, oversight or indirect costs, and the State, may notify Local Agency in writing that the Record Retention Period shall be extended. For records for real property and equipment, the Record Retention Period shall extend three years following final disposition of such prop erty. B. Inspection Local Agency shall permit the State to audit, inspect, examine, excerpt, copy, and transcribe Local Agency Records during the Record Retention Period. Local Agency shall make Local Agency Records available during normal business hours at Local Agency’s office or place of business, or at other mutually agreed upon times or locations, upon no fewer than 2 Business Days’ notice from the State, unless the State determines that a shorter period of notice, or no notice, is necessary to protec t the interests of the State. C. Monitoring The State will monitor Local Agency’s performance of its obligations under this Agreement using procedures as determined by the State. The State shall monitor Local Agency’s performance in a manner that does not unduly interfere with Local Agency’s performance of the Work. D. Final Audit Report Local Agency shall promptly submit to the State a copy of any final audit report of an audit performed on Local Agency’s records that relates to or affects this Agreement or the Work, whether the audit is P21 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 15 of 25 conducted by Local Agency or a third party. 10. CONFIDENTIAL INFORMATION-STATE RECORDS A. Confidentiality Local Agency shall hold and maintain, and cause all Subcontractors to hold and maintain, any and all State Records that the State provides or makes available to Local Agency for the sole and exclusive benefit of the State, unless those State Records are otherwise publicly available at the time of disclosure or are subject to disclosure by Local Agency under CORA. Local Agency shall not, without prior written approval of the State, use for Local Agency’s own benefit, publish, copy, or otherwise disclose to any third party, or permit the use by any third party for its benefit or to the detriment of the State, any State Records, except as otherwise stated in this Agreement. Local Agency shall provide for the security of all State Confidential Information in accordance with all policies promulgated by the Colorado Office of Information Security and all applicable laws, rules, p olicies, publications, and guidelines. Local Agency shall immediately forward any request or demand for State Records to the State’s principal representative. B. Other Entity Access and Nondisclosure Agreements Local Agency may provide State Records to its agents, employees, assigns and Subcontractors as necessary to perform the Work, but shall restrict access to State Confidential Information to those agents, employees, assigns and Subcontractors who require access to perform their obligations under this Agreement. Local Agency shall ensure all such agents, employees, assigns, and Subcontractors sign nondisclosure agreements with provisions at least as protective as those in this Agreement, and that the nondisclosure agreements are in force at all times the agent, employee, assign or Subcontractor has access to any State Confidential Information. Local Agency shall provide copies of those signed nondisclosure agreements to the State upon request. C. Use, Security, and Retention Local Agency shall use, hold and maintain State Confidential Information in compliance with any and all applicable laws and regulations in facilities located within the United States, and shall maintain a secure environment that ensures confidentiality of all State Confidential Information wherever located. Local Agency shall provide the State with access, subject to Local Agency’s reasonable security requirements, for purposes of inspecting and monitoring access and use of State Confidential Information and evaluating security control effectiveness. Upon the expiration or termination of this Agreement, Local Agency shall return State Records provided to Local Agency or destroy such State Records and certify to the State that it has done so, as directed by the State. If Local Agency is prevented by law or regulation from returning or destroying State Confidential Information, Local Agency warrants it will guarantee the confidentiality of, and cease to use, such State Confidential Information. D. Incident Notice and Remediation If Local Agency becomes aware of any Incident, it shall notify the State immediately and cooperate with the State regarding recovery, remediation, and the necessity to involve law enforcement, as determined by the State. Unless Local Agency can establish that none of Local Agency or any of its agents, employees, assigns or Subcontractors are the cause or source of the Incident, Local Agency shall be responsible for the cost of notifying each person who may have been impacted by the Incident. After an Incident, Local Agency shall take steps to reduce the risk of incurring a similar type of Incident in the future as directed by the State, which may include, but is not limited to, developing and implementing a remediation plan that is approved by the State at no additional cost to the State. 11. CONFLICT OF INTEREST A. Actual Conflicts of Interest Local Agency shall not engage in any business or activities, or maintain any relationships that conflict in any way with the full performance of the obligations of Local Agency und er this Agreement. Such a conflict of interest would arise when a Local Agency or Subcontractor’s employee, officer or agent were to offer or provide any tangible personal benefit to an employee of the State, or any member of his or her immediate family or his or her partner, related to the award of, entry into or management or oversight of this Agreement. Officers, employees and agents of Local Agency may neither solicit nor accept gratuities, favors or anything of monetary value from contractors or partie s to subcontracts. P22 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 16 of 25 B. Apparent Conflicts of Interest Local Agency acknowledges that, with respect to this Agreement, even the appearance of a conflict of interest shall be harmful to the State’s interests. Absent the State’s prior written approval, Local Agency shall refrain from any practices, activities or relationships that reasonably appear to be in conflict with the full performance of Local Agency’s obligations under this Agreement. C. Disclosure to the State If a conflict or the appearance of a conflict arises, or if Local Agency is uncertain whether a conflict or the appearance of a conflict has arisen, Local Agency shall submit to the State a disclosure statement setting forth the relevant details for the State’s consideration. Failure to promptly submit a disclosure statement or to follow the State’s direction in regard to the actual or apparent conflict constitutes a breach of this Agreement. 12. INSURANCE Local Agency shall obtain and maintain, and ensure that each Subcontractor shall obtain and mai ntain, insurance as specified in this section at all times during the term of this Agreement. All insurance policies required by this Agreement that are not provided through self-insurance shall be issued by insurance companies with an AM Best rating of A-VIII or better. A. Local Agency Insurance Local Agency is a "public entity" within the meaning of the Colorado Governmental Immunity Act, §24 - 10-101, et seq., C.R.S. (the “GIA”) and shall maintain at all times during the term of this Agreement such liability insurance, by commercial policy or self -insurance, as is necessary to meet its liabilities under the GIA. B. Subcontractor Requirements Local Agency shall ensure that each Subcontractor that is a public entity within the meaning of the GIA, maintains at all times during the terms of this Agreement, such liability insurance, by commercial policy or self-insurance, as is necessary to meet the Subcontractor’s obligations under the GIA. Local Agency shall ensure that each Subcontractor that is not a public entity within the meaning of the GIA, maintains at all times during the terms of this Agreement all of the following insurance policies: i. Workers’ Compensation Workers’ compensation insurance as required by state statute, and employers’ liability insurance covering all Local Agency or Subcontractor employees acting within the course and scope of their employment. ii. General Liability Commercial general liability insurance written on an Insurance Services Office occurrence form, covering premises operations, fire damage, independent contractors, products and completed operations, blanket contractual liability, personal injury, and advertising liability with minimum limits as follows: a. $1,000,000 each occurrence; b. $1,000,000 general aggregate; c. $1,000,000 products and completed operations aggregate; and d. $50,000 any 1 fire. iii. Automobile Liability Automobile liability insurance covering any auto (including owned, hired and non -owned autos) with a minimum limit of $1,000,000 each accident combined single limit. iv. Protected Information Liability insurance covering all loss of State Confidential Information, such as PII, PHI, PCI, Tax Information, and CJI, and claims based on alleged violations of privacy rights through improper use or disclosure of protected information with minimum limits as follows: P23 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 17 of 25 a. $1,000,000 each occurrence; and b. $2,000,000 general aggregate. v. Professional Liability Insurance Professional liability insurance covering any damages caused by an error, omission or any negligent act with minimum limits as follows: a. $1,000,000 each occurrence; and b. $1,000,000 general aggregate. vi. Crime Insurance Crime insurance including employee dishonesty coverage with minimum limits as follows: a. $1,000,000 each occurrence; and b. $1,000,000 general aggregate. C. Additional Insured The State shall be named as additional insured on all commercial general liability policies (leases and construction contracts require additional insured coverage for completed operations) required of Local Agency and Subcontractors. In the event of cancellation of any commercial general liability policy, the carrier shall provide at least 10 days prior written notice to CDOT. D. Primacy of Coverage Coverage required of Local Agency and each Subcontractor shall be primary over any insurance or self- insurance program carried by Local Agency or the State. E. Cancellation All commercial insurance policies shall include provisions preventing cancellation or non-renewal, except for cancellation based on non-payment of premiums, without at least 30 days prior notice to Local Agency and Local Agency shall forward such notice to the State in accordance with §16 within 7 days of Local Agency’s receipt of such notice. F. Subrogation Waiver All commercial insurance policies secured or maintained by Local Agency or its Subcontractors in relation to this Agreement shall include clauses stating that each carrier shall waive all rights of recovery under subrogation or otherwise against Local Agency or the State, its agencies, institutions, organizations, officers, agents, employees, and volunteers. G. Certificates For each commercial insurance plan provided by Local Agency under this Agreement, Local Agency shall provide to the State certificates evidencing Local Agency’s insurance coverage required in this Agreement within 7 Business Days following the Effective Date. Local Agency shall provide to the State certificates evidencing Subcontractor insurance coverage required under this Agree ment within 7 Business Days following the Effective Date, except that, if Local Agency’s subcontract is not in effect as of the Effective Date, Local Agency shall provide to the State certificates showing Subcontractor insurance coverage required under this Agreement within 7 Business Days following Local Agency’s execution of the subcontract. No later than 15 days before the expiration date of Local Agency’s or any Subcontractor’s coverage, Local Agency shall deliver to the State certificates of insurance evidencing renewals of coverage. At any other time during the term of this Agreement, upon request by the State, Local Agency shall, within 7 Business Days following the request by the State, supply to the State evidence satisfactory to the State of compliance with the provisions of this §12. 13. BREACH A. Defined The failure of a Party to perform any of its obligations in accordance with this Agreement, in whole or in part or in a timely or satisfactory manner, shall be a breach. The institution of proceedings under any bankruptcy, insolvency, reorganization or similar law, by or against Local Agency, or the appointment of a receiver or similar officer for Local Agency or any of its property, which is not vacated or fully P24 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 18 of 25 stayed within 30 days after the institution of such proceeding, shall also constitute a breach. B. Notice and Cure Period In the event of a breach, the aggrieved Party shall give written notice of breach to the other Party. If the notified Party does not cure the breach, at its sole expense, within 30 days after the delivery of written notice, the Party may exercise any of the remedies as described in §14 for that Party. Notwithstanding any provision of this Agreement to the contrary, the State, in its discretion, need not provide notice or a cure period and may immediately terminate this Agreement in whole or in part or institute any other remedy in the Agreement in order to protect the public interest of the State. 14. REMEDIES A. State’s Remedies If Local Agency is in breach under any provision of this Agreement and fails to cure such breach, the State, following the notice and cure period set forth in §13.B, shall have all of the remedies listed in this §14.A. in addition to all other remedies set forth in this Agreement or at law. The State may exercise any or all of the remedies available to it, in its discretion, concurrently or consecutively. i. Termination for Breach In the event of Local Agency’s uncured breach, the State may terminate this entire Agreement or any part of this Agreement. Local Agency shall continue performance of this Agreement to the extent not terminated, if any. a. Obligations and Rights To the extent specified in any termination notice, Local Agency shall not incur further obligations or render further performance past the effective date of such notice, and shall terminate outstanding orders and subcontracts with third parties. However, Local Agency shall complete and deliver to the State all Work not cancelled by the termination notice, and may incur obligations as necessary to do so within this Agreement’s terms. At the request of the State, Local Agency shall assign to the State all of Local Agency's rights, title, and interest in and to such terminated orders or subcontracts. Upon termination, Local Agency shall take timely, reasonable and necessary action to protect and preserve property in the possession of Local Agency but in which the State has an interest. At the State’s request, Local Agency shall return materials owned by the State in Local Agency’s possession at the time of any termination. Local Agency shall deliver all completed Work Product and all Work Product that was in the process of completion to the State at the State’s request. b. Payments Notwithstanding anything to the contrary, the State shall only pa y Local Agency for accepted Work received as of the date of termination. If, after termination by the State, the State agrees that Local Agency was not in breach or that Local Agency's action or inaction was excusable, such termination shall be treated as a termination in the public interest, and the rights and obligations of the Parties shall be as if this Agreement had been terminated in the public interest under §2.C. c. Damages and Withholding Notwithstanding any other remedial action by the State, Local Agency shall remain liable to the State for any damages sustained by the State in connection with any breach by Local Agency, and the State may withhold payment to Local Agency for the purpose of mitigating the State’s damages until such time as the exact amount of damages due to the State from Local Agency is determined. The State may withhold any amount that may be due Local Agency as the State deems necessary to protect the State against loss including, without limitation, loss as a result of outstanding liens and excess costs incurred by the State in procuring from third parties replacement Work as cover. ii. Remedies Not Involving Termination The State, in its discretion, may exercise one or more of the following additional remedies: a. Suspend Performance Suspend Local Agency’s performance with respect to all or any portion of the Work pending P25 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 19 of 25 corrective action as specified by the State without entitling Local Agency to an adjustment in price or cost or an adjustment in the performance schedule. Local Agency shall promptly cease performing Work and incurring costs in accordance with the State’s directive, and the State shall not be liable for costs incurred by Local Agency after the suspension of performance. b. Withhold Payment Withhold payment to Local Agency until Local Agency corrects its Work. c. Deny Payment Deny payment for Work not performed, or that due to Local Agency’s actions or inactions, cannot be performed or if they were performed are reasonably of no value to the state; provided, that any denial of payment shall be equal to the value of the obligations not performed. d. Removal Demand immediate removal from the Work of any of Local Agency’s employees, agents, or Subcontractors from the Work whom the State deems incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable or whose continued relation to this Agreement is deemed by the State to be contrary to the public interest or the State’s best interest. e. Intellectual Property If any Work infringes a patent, copyright, trademark, trade secret, or other intellectual property right, Local Agency shall, as approved by the State (a) secure that right to use such Work for the State or Local Agency; (b) replace the Work with noninfringing Work or modify the Work so that it becomes noninfringing; or, (c) remove any infringing Work and refund the amount paid for such Work to the State. B. Local Agency’s Remedies If the State is in breach of any provision of this Agreement and does not cure such breach, Local Agency, following the notice and cure period in §13.B and the dispute resolution process in §15 shall have all remedies available at law and equity. 15. DISPUTE RESOLUTION A. Initial Resolution Except as herein specifically provided otherwise, disputes concerning the performance of this Agreement which cannot be resolved by the designated Agreement representatives shall be referred in writing to a senior departmental management staff member designated by the State and a senior manager designated by Local Agency for resolution. B. Resolution of Controversies If the initial resolution described in §15.A fails to resolve the dispute within 10 Business Days, Contractor shall submit any alleged breach of this Contract by the State to the Procurement Official of CDOT as described in §24-101-301(30), C.R.S. for resolution in accordance with the provisions of §§24- 106-109, 24-109-101.1, 24-109-101.5, 24-109-106, 24-109-107, 24-109-201 through 24-109-206, and 24-109-501 through 24-109-505, C.R.S., (the “Resolution Statutes”), except that if Contractor wishes to challenge any decision rendered by the Procurement Official, Contractor’s challenge shall be an appeal to the executive director of the Department of Personnel and Administration, or their delegate, under the Resolution Statutes before Contractor pursues any further action as permitted by such statutes. Except as otherwise stated in this Section, all requirements of the Resolution Statutes shall apply including, without limitation, time limitations. 16. NOTICES AND REPRESENTATIVES Each individual identified below shall be the principal representative of the designating Party. All notices required or permitted to be given under this Agreement shall be in writing, and shall be delivered (i) by hand with receipt required, (ii) by certified or registered mail to such Party’s principal representative at the address set forth below or (iii) as an email with read receipt requested to the principal representative at the email address, if any, set forth below. If a Party delivers a notice to another through email and the email is undeliverable, then, unless the Party has been provided with an alternate email contact, the Party delivering the notice shall deliver the notice by hand with receipt required or by certified or registered mail to such Party’s principal representative at the address set forth below. Either Party may change its principal representative or principal representative P26 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 20 of 25 contact information by notice submitted in accordance with this §16 without a formal amendment to this Agreement. Unless otherwise provided in this Agreement, notices shall be effective upon delivery of the written notice. For the State Colorado Department of Transportation (CDOT) Mark Rogers, Project Manager CDOT Region 1 222 South 6th Street Grand Junction, CO 81501 970-683-6252 mark.rogers@state.co.us For the Local Agency CITY OF ASPEN Lynn Rumbaugh, City of Aspen CMAQ Manager 130 South Galena Street Aspen, CO 81611 970-920-5038 lynn.rumbaugh@cityofaspen.com 17. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION A. Work Product Local Agency assigns to the State and its successors and assigns, the entire right, title, and interest in and to all causes of action, either in law or in equity, for past, present, or future infringement of intellectual property rights related to the Work Product and all works based on, derived from, or incorporating the Work Product. Whether or not Local Agency is under contract with the State at the time, Local Agency shall execute applications, assignments, and other documents, and shall render all other reasonable assistance requested by the State, to enable the State to secure patents, copyrights, licenses and other intellectual property rights related to the Work Product. The Parties intend the Work Product to be works made for hire. i. Copyrights To the extent that the Work Product (or any portion of the Work Product) would not be considered works made for hire under applicable law, Local Agency hereb y assigns to the State, the entire right, title, and interest in and to copyrights in all Work Product and all works based upon, derived from, or incorporating the Work Product; all copyright applications, registrations, extensions, or renewals relating to all Work Product and all works based upon, derived from, or incorporating the Work Product; and all moral rights or similar rights with respect to the Work Product throughout the world. To the extent that Local Agency cannot make any of the assignments required by this section, Local Agency hereby grants to the State a perpetual, irrevocable, royalty-free license to use, modify, copy, publish, display, perform, transfer, distribute, sell, and create derivative works of the Work Product and all works based upon, derived from, or incorporating the Work Product by all means and methods and in any format now known or invented in the future. The State may assign and license its rights under this license. ii. Patents In addition, Local Agency grants to the State (and to recipients of Work Product distributed by or on behalf of the State) a perpetual, worldwide, no-charge, royalty-free, irrevocable patent license to make, have made, use, distribute, sell, offer for sale, import, transfer, and otherwise utilize, operate, modify and propagate the contents of the Work Product. Such license applies only to those patent claims licensable by Local Agency that are necessarily infringed by the Work Product alone, or by the combination of the Work Product with anything else used by the State. P27 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 21 of 25 B. Exclusive Property of the State Except to the extent specifically provided elsewhere in this Agreement, any pre -existing State Records, State software, research, reports, studies, photographs, negatives, or other documents, drawing s, models, materials, data, and information shall be the exclusive property of the State (collectively, “State Materials”). Local Agency shall not use, willingly allow, cause or permit Work Product or State Materials to be used for any purpose other than t he performance of Local Agency’s obligations in this Agreement without the prior written consent of the State. Upon termination of this Agreement for any reason, Local Agency shall provide all Work Product and State Materials to the State in a form and manner as directed by the State. 18. GOVERNMENTAL IMMUNITY Liability for claims for injuries to persons or property arising from the negligence of the Parties, their departments, boards, commissions committees, bureaus, offices, employees and officials shall be controlled and limited by the provisions of the GIA; the Federal Tort Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b), and the State’s risk management statutes, §§24-30-1501, et seq. C.R.S. 19. STATEWIDE CONTRACT MANAGEMENT SYSTEM If the maximum amount payable to Local Agency under this Agreement is $100,000 or greater, either on the Effective Date or at anytime thereafter, this §19 shall apply. Local Agency agrees to be governed by and comply with the provisions of §24-102-205, §24-102-206, §24-103-601, §24-103.5-101 and §24-105-102 C.R.S. regarding the monitoring of vendor performance and the reporting of contract performance information in the State’s contract management system (“Contract Management System” or “CMS”). Local Agency’s performance shall be subject to evaluation and review in accordance with the terms and conditions of this Agreement, Colorado statutes governing CMS, and State Fiscal Rules and State Controller policies. 20. GENERAL PROVISIONS A. Assignment Local Agency’s rights and obligations under this Agreement are personal and may not be transferred or assigned without the prior, written consent of the State. Any attempt at assignment or transfer without such consent shall be void. Any assignment or tran sfer of Local Agency’s rights and obligations approved by the State shall be subject to the provisions of this Agreement B. Subcontracts Local Agency shall not enter into any subcontract in connection with its obligations under this Agreement without the prior, written approval of the State. Local Agency shall submit to the State a copy of each such subcontract upon request by the State. All subcontracts entered into by Local Agency in connection with this Agreement shall comply with all applicable federal and state laws and regulations, shall provide that they are governed by the laws of the State of Colorado, and shall be subject to all provisions of this Agreement. C. Binding Effect Except as otherwise provided in §20.A. all provisions of this Agreement, including the benefits and burdens, shall extend to and be binding upon the Parties’ respective successors and assigns. D. Authority Each Party represents and warrants to the other that the execution and delivery of this Agreement and the performance of such Party’s obligations have been duly authorized. E. Captions and References 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. All references in this Agre ement 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. F. Counterparts This Agreement may be executed in multiple, identical, original counterparts, each of which shall be P28 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 22 of 25 deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. G. Entire Understanding This Agreement represents the complete integration of all understandings between the Parties related to the Work, and all prior representations and understandings related to the Work, oral or written, are merged into this Agreement. Prior or contemporaneous additions, deletions, or other changes to this Agreement shall not have any force or effect whatsoever, unless embodied herein. H. Jurisdiction and Venue All suits or actions related to this Agreement shall be filed and proceedings held in the State of Colorado and exclusive venue shall be in the City and County of Denver. I. Modification Except as otherwise provided in this Agreement, any modification to this Agreement shall only be effective if agreed to in a formal amendment to this Agreement, properly executed and approved in accordance with applicable Colorado State law and State Fiscal Rules. Modifications permitted under this Agreement, other than contract amendments, shall conform to the policies promulgated by the Colorado State Controller. J. Statutes, Regulations, Fiscal Rules, and Other Authority. Any reference in this Agreement to a statute, regulation, State Fiscal Rule, fiscal policy or other authority shall be interpreted to refer to such authority then current, as may have been changed or amended since the Effective Date of this Agreement. K. Order of Precedence In the event of a conflict or inconsistency between this Agreement and any exhibits or attachment such conflict or inconsistency shall be resolved by reference to the documents in the following order of priority: i. Colorado Special Provisions in the main body of this Agreement. ii. The provisions of the other sections of the main body of this Agreement. iii Exhibit A, Statement of Work. iv. Exhibit D, Local Agency Resolution. v. Exhibit C, Funding Provisions. vi. Exhibit B, Sample Option Letter. vii. Exhibit E, Local Agency Contract Administration Checklist. viii. Other exhibits in descending order of their attachment. L. Severability The invalidity or unenforceability of any pro vision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect, provided that the Parties can continue to perform their obligations under this Agreement in acco rdance with the intent of the Agreement. M. Survival of Certain Agreement Terms Any provision of this Agreement that imposes an obligation on a Party after termination or expiration of the Agreement shall survive the termination or expiration of the Agree ment and shall be enforceable by the other Party. N. Taxes The State is exempt from federal excise taxes under I.R.C. Chapter 32 (26 U.S.C., Subtitle D, Ch. 32) (Federal Excise Tax Exemption Certificate of Registry No. 84-730123K) and from State and local government sales and use taxes under §§39-26-704(1), et seq. C.R.S. (Colorado Sales Tax Exemption Identification Number 98-02565). The State shall not be liable for the payment of any excise, sales, or use taxes, regardless of whether any political subdivision of the state imposes such taxes on Local P29 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 23 of 25 Agency. Local Agency shall be solely responsible for any exemptions from the collection of excise, sales or use taxes that Local Agency may wish to have in place in connection with this Agreement. N. Third Party Beneficiaries Except for the Parties’ respective successors and assigns described in §20.C, this Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than the Parties. Enforcement of this Agreement and all rights and obligations hereunder are reserved solely to the Parties. 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. O. Waiver A Party’s failure or delay in exercising any right, power, or privilege under this Agreement, whether explicit or by lack of enforcement, shall not operate as a waiver, nor shall any single or partial exercise of any right, power, or privilege preclude any other or further exercise of such right, power, or privilege. P. CORA Disclosure To the extent not prohibited by federal law, this Agreement and the performance measures and standards required under §24-103.5-101 C.R.S., if any, are subject to public release through the CORA. Q. Standard and Manner of Performance Local Agency shall perform its obligations under this Agreement in accordance with the highest standards of care, skill and diligence in Local Agency’s industry, trade, or profession. R. Licenses, Permits, and Other Authorizations. Local Agency shall secure, prior to the Effective Date, and maintain at all times during the term of this Agreement, at its sole expense, all licenses, certifications, permits, and other authorizations required to perform its obligations under this Agreement, and shall ensure that all employees, agents and Subcontractors secure and maintain at all times during the term of their employment, agency or subcontract, all license, certifications, permits and other authorizations r equired to perform their obligations in relation to this Agreement. 21. COLORADO SPECIAL PROVISIONS These Special Provisions apply to all contracts except where noted in italics. A. CONTROLLER'S APPROVAL. §24-30-202(1), C.R.S. This Agreement shall not be valid until it has been approved by the Colorado State Controller or designee. B. FUND AVAILABILITY. §24-30-202(5.5), C.R.S. Financial obligations of the State payable after the current State Fiscal Year are contingent upon fund s for that purpose being appropriated, budgeted, and otherwise made available. C. 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, §24-10-101 et seq. C.R.S., or the Federal Tort Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b). D. INDEPENDENT CONTRACTOR Local Agency shall perform its duties hereunder as an independent contractor and not as an employee. Neither Local Agency nor any agent or employee of Local Agency shall be deemed to be an agent or employee of the State. 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 Local Agency or any of its agents or employees. Unemployment insurance benefits will be available to Local Agency and its employees and agents only if such coverage is made available by Local Agency or a third party. Local Agency shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this Agreement. 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. Local Agency shall (i) provide and keep in force workers' P30 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 24 of 25 compensation and unemployment compensation insurance in the amounts required by law, (ii) provide proof thereof when requested by the State, and (iii) be solely responsible for its acts and those of its employees and agents. E. COMPLIANCE WITH LAW. 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. F. 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 o peration of this provision shall not invalidate the remainder of this Agreement, to the extent capable of execution. G. 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 Agreement or incorporated herein by reference shall be null and void. H. 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. Local Agency hereby certifies and warrants that, during the term of this Agreement and any extensions, 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 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. I. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. §§24-18-201 and 24-50-507, C.R.S. 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. Local Agency has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of Local Agency’s services and Local Agency shall not employ any person having such known interests. 22. FEDERAL REQUIREMENTS Local Agency and/or their contractors, subcontractors, and consultants shall at all times during the execution of this Agreement strictly adhere to, and comply with, all applicable federal and State laws, and their implementing regulations, as they currently exist and may hereafter be amended. A summary of applicable federal provisions are attached hereto as Exhibit F, Exhibit I, Exhibit J, Exhibit K and Exhibit M are hereby incorporated by this reference. 23. DISADVANTAGED BUSINESS ENTERPRISE (DBE) Local Agency will comply with all requirements of Exhibit G and Local Agency Contract Administration Checklist regarding DBE requirements for the Work, except that if Local Agency desires to use its own DBE program to implement and administer the DBE provisions of 49 C.F.R. Part 26 under this Agreement, it must submit a copy of its program’s requirements to the State for review and approval before the execution of this Agreement. If Local Agency uses any State- approved DBE program for this Agreement, Local Agency shall be solely responsible to defend that DBE program and its use of that program against all legal and other challenges or complaints, at its sole cost and expense. Such responsibility includes, without limitation, determinations concerning DBE eligibility requirements and certification, adequate legal and factual bases for DBE goals and good faith efforts. State approval (if provided) of Local Agency’s DBE program does not waive or modify the sole responsibility of Local Agency for use of its pro gram. P31 VI.a PO # / OLA #: 471001247 / AQC M045-016 Routing #: 18-HA3-ZH-00110 Document Builder Generated Rev. 12/09/2016 Page 25 of 25 24. DISPUTES Except as otherwise provided in this Agreement, any dispute concerning a question of fact arising under this Agreement which is not disposed of by agreement shall be decided by the Chief Engineer of the Department of Transportation. The decision of the Chief Engineer will be final and conclusive unless, within 30 calendar days after the date of receipt of a copy of such written decision, Local Agency mails or otherwise furnishes to the State a written appeal addressed to the Executive Directo r of CDOT. In connection with any appeal proceeding under this clause, Local Agency shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, Local Agency shall proceed dilig ently with the performance of this Agreement in accordance with the Chief Engineer’s decision. The decision of the Executive Director or his duly authorized representative for the determination of such appeals shall be final and conclusive and serve as final agency action. This dispute clause does not preclude consideration of questions of law in connection with decisions provided for herein. Nothing in this Agreement, however, shall be construed as making final the decision of any administrative official, representative, or board on a question of law. THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK P32 VI.a Exhibit A – Page 1 of 3 EXHIBIT A, STATEMENT OF WORK P33 VI.a Exhibit A – Page 2 of 3 P34 VI.a Exhibit A – Page 3 of 3 P35 VI.a Exhibit B - Page 1 of 2 EXHIBIT B, SAMPLE OPTION LETTER State Agency Department of Transportation Option Letter Number ZOPTLETNUM Local Agency ZVENDORNAME Agreement Routing Number ZSMARTNO Agreement Maximum Amount Initial term State Fiscal Year ZFYY_1 Extension terms State Fiscal Year ZFYY_2 State Fiscal Year ZFYY_3 State Fiscal Year ZFYY_4 State Fiscal Year ZFYY_5 Total for all state fiscal years $ ZFYA_1 $ ZFYA_2 $ ZFYA_3 $ ZFYA_4 $ ZFYA_5 $ ZPERSVC_MAX_ AMOUNT Agreement Effective Date The later of the effective date or ZSTARTDATEX Current Agreement Expiration Date ZTERMDATEX 1. OPTIONS: A. Option to extend for an Extension Term B. Option to unilaterally authorize the Local Agency to begin a phase which may include Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous ONLY (does not apply to Acquisition/Relocation or Railroads) and to update encumbrance amounts (a new Exhibit C must be attached with the option letter and shall be labeled C-1, future changes for this option shall be labeled as follows: C-2, C-3, C-4, etc.). C. Option to unilaterally transfer funds from one phase to another phase (a new Exhibit C must be attached with the option letter and shall be labeled C-1, future changes for this option shall be labeled as follows: C-2, C-3, C- 4, etc.). D. Option to unilaterally do both A and B (a new Exhibit C must be attached with the option letter and shall be labeled C-1, future changes for this option shall be labeled as follows: C-2, C-3, C-4, etc.). E. Option to update a Phase Performance Period and/or Modify OMB Uniform Guidance Information. 2. REQUIRED PROVISIONS: Option A In accordance with Section 2, C of the Original Agreement referenced above, t he State hereby exercises its option for an additional term, beginning on (insert date) and ending on the current contract expiration date shown above, under the same funding provisions stated in the Original Contract Exhibit C, as amended. Option B In accordance with Section 7, E of the Original Agreement referenced above, the State hereby excerises its option to authorize the Local Agency to begin a phase that will include (describe which phase will be added and include all that apply – Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous) and to encumber previously budgeted funds for the phase based upon changes in funding availability and authori zation. The encumbrance for (Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous)is (insert dollars here). A new Exhibit C-1 is made part of the original Agreement and replaces Exhibit C. (The following is a NOTE only, please delete when using this option. Future changes for this option for Exhibit C shall be labled as follows: C-2, C-3, C-4, etc.). Option C In accordance with Section 7, E of the Original Agreement referenced above, the State hereby excerises its option to P36 VI.a Exhibit B - Page 2 of 2 authorize the Local Agency to transfer funds from (describe phase from which funds will be moved) to (describe phase to which funds will be moved) based on variance in actual phase costs and original phase estimates. A new Exhibit C-1 is made part of the original Agreement and replaces Exhibit C. Option D In accordance with Section 7, E of the Original Agreement referenced above, the State hereby excerises its option to authorize the Local Agency to begin a phase that will include (describe which phase will be added and include all that apply – Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous); 2) to encumber funds for the phase based upon changes in funding availability and authorization; and 3) to transfer funds from (describe phase from which funds will be moved) to (describe phase to which funds will be moved) based on variance in actual phase costs and original phase estimates. A new Exhibit C-1 is made part of the original Agreement and replaces Exhibit C. (The following language must be included on ALL options): The Agreement Maximum Amount table on the Contract’s Signature and Cover Page is hereby deleted and replaced with the Current Agreement Maximum Amount table shown above. Option E In accordance with Section 7, E of the Original Agreement referenced above, the State hereby excerises its option to authorize the Local Agency to update a Phase Performance Period and/or Modify OMB Uniform Guidance Information. A new Exhibit C-1 is made part of the original Agreement and replaces Exhibit C. 3. OPTION EFFECTIVE DATE: The effective date of this option letter is upon approval of the State Controller or delegate. APPROVALS: State of Colorado: John W. Hickenlooper, Governor By: _____________________________________________ Date: __________________ Executive Director, Colorado Department of Transportation ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER CRS §24-30-202 requires the State Controller to approve all State Contracts. This Agreement is not valid until signed and dated below by the State Controller or delegate. Contractor is not authorized to begin performance until such time. If the Local Agency begins performing prior thereto, the State of Colorado is not obligated to pay the Local Agency for such performance or for any goods and/or services provided hereunder. State Controller Robert Jaros, CPA, MBA, JD By: __________________________________ Date: ________________________________ P37 VI.a Exhibit C - Page 1 of 2 EXHIBIT C – FUNDING PROVISIONS AQC M045-016 (21931) A. Cost of Work Estimate The Local Agency has estimated the total cost the Work to be $180,000.00, which is to be funded as follows: 1. BUDGETED FUNDS a. Federal Funds (82.79% of Participating Costs) $149,022.00 b. Local Agency Matching Funds (17.21% of Participating Costs) $30,978.00 TOTAL BUDGETED FUNDS $180,000.00 2. OMB UNIFORM GUIDANCE a. Federal Award Identification Number (FAIN): TBD b. Federal Award Date (also Phase Performance Start Date): See Below c. Amount of Federal Funds Obligated: $149,022.00 d. Total Amount of Federal Award: $149,022.00 e. Name of Federal Awarding Agency: FHWA f. FDA # Highway Planning and Construction CFDA 20.205 g. Is the Award for R&D? No h. Indirect Cost Rate (if applicable) N/A 3. ESTIMATED PAYMENT TO LOCAL AGENCY a. Federal Funds Budgeted $149,022.00 b. Less Estimated Federal Share of CDOT-Incurred Costs $0.00 TOTAL ESTIMATED PAYMENT TO LOCAL AGENCY $149,022.00 4. FOR CDOT ENCUMBRANCE PURPOSES a. Total Encumbrance Amount $180,000.00 b. Less ROW Acquisition 3111 and/or ROW Relocation 3109 $0.00 Net to be encumbered as follows: $180,000.00 Note: Design and Construction phase funds are currently not available. Design and Construction funds will become available after federal authorization and execution of an Option Letter (Exhibit B) or formal Amendment. WBS Element 21931.10.50 Performance Period Start*/End Date 4/3/2018 / 12/31/2020 Misc 3404 $180,000.00 WBS Element <<<<<>>>> Performance Period Start*/End Date N/A / N/A Const. 3301 $0.00 *The Local Agency should not begin work until all three of the following are in place: 1) Phase Performance Period Start Date; 2) the execution of the document encumbering funds for the respective phase; a nd 3) Local Agency receipt of the official Notice to Proceed. Any work performed before these three milestones are achieved will not be reimbursable. P38 VI.a Exhibit C - Page 2 of 2 B. Matching Funds The matching ratio for the federal participating funds for this Work is 82.79% federal-aid funds to 17.21% Local Agency funds, it being understood that such ratio applies only to the $180,000.00 that is eligible for federal participation, it being further understood that all non-participating costs are borne by the Local Agency at 100%. If the total participating cost of performance of the Work exceeds $180,000.00, and additional federal funds are made available for the Work, the Local Agency shall pay 17.21% of all such costs eligible for federal participation and 100% of all non- participating costs; if additional federal funds are not made available, the Local Agency shall pay all such excess costs. If the total participating cost of performance of the Work is less than $180,000.00, then the amounts of Local Agency and federal-aid funds will be decreased in accordance with the funding ratio described herein. The performance of the Work shall be at no cost to the State. C. Maximum Amount Payable The maximum amount payable to the Local Agency under this Agreement shall be $149,022.00 (for CDOT accounting purposes, the federal funds of $149,022.00 and the Local Agency matching funds of $30,978.00 will be encumbered for a total encumbrance of $180,000.00), unless such amount is increased by an appropriate written modification to this Agreement executed before any increased cost is incurred. It is understood and agreed by the parties hereto that the total cost of the Work stated hereinbefore is the best estimate available, based on the design data as approved at the time of execution of this Agreement, and that such cost is subject to revisions (in accord with the procedure in the previous sentence) agreeable to the parties prior to bid and award. The maximum amount payable shall be reduced without amendment when the actual amount of the Local Agency’s awarded contract is less than the budgeted total of the federal participating funds and the Local Agency matching funds. The maximum amount payable shall be reduced through the execution of an Option Letter as described in Section 7. E. of this contract. D. Single Audit Act Amendment All state and local government and non-profit organizations receiving more than $750,000 from all funding sources defined as federal financial assistance for Single Audit Act Amendment purposes shall comply with the audit requirements of 2 CFR part 200, subpart F (Audit Requirements) see also, 49 C.F.R. 18.20 through 18.26. The Single Audit Act Amendment requirements applicable to the Local Agency receiving federal funds are as follows: i. Expenditure less than $750,000 If the Local Agency expends less than $750,000 in Federal funds (all federal sources, not just Highway funds) in its fiscal year then this requirement does not apply. ii. Expenditure of $750,000 or more-Highway Funds Only If the Local Agency expends $750,000 or more, 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. iii. Expenditure of $750,000 or more-Multiple Funding Sources If the Local Agency expends $750,000 or more in Federal funds, and the Federal funds are from multiple sources (FTA, HUD, NPS, etc.) then the Single Audit Act applies, whi ch is an audit on the entire organization/entity. iv. Independent CPA Single Audit shall only be conducted by an independent CPA, not by an auditor on staff. An audit is an allowable direct or indirect cost. P39 VI.a EXHIBIT D, LOCAL AGENCY RESOLUTION NOT APPLICABLE P40 VI.a Exhibit E – Page 1 of 5 EXHIBIT E, LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST P41 VI.a Exhibit E – Page 2 of 5 P42 VI.a Exhibit E – Page 3 of 5 P43 VI.a Exhibit E – Page 4 of 5 P44 VI.a Exhibit E – Page 5 of 5 P45 VI.a Exhibit F - Page 1 of 1 EXHIBIT F, CERTIFICATION FOR FEDERAL-AID CONTRACTS The Local Agency certifies, by signing this Agreement, to the best of its knowledge and belief, that: No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or e mployee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal loan, the entering into of any cooperative agreement, and the extension, continua tion, renewal, amendment, or modification of any Federal contract, Agreement, loan, or cooperative agreement. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer of Congress, or an employee of a Member of Congress in connection with this Federal contract, Agreement, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance wi th its instructions. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction impo sed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. The prospective participant also agree by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such sub - recipients shall certify and disclose accordingly. P46 VI.a Exhibit G - Page 1 of 1 EXHIBIT G [INTENTIONALLY OMITTED] P47 VI.a Exhibit H - Page 1 of 2 EXHIBIT H, LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES Title 23 Code of Federal Regulations (CFR) 172 applies to a federally funded Local Agency project agreement administered by CDOT that involves professional consultant services. 23 CFR 172.1 states “The policies and procedures involve federally funded contracts for engineering and design related services for projects subject to the provisions of 23 U.S.C. 112(a) and are issued to ensure that a qualified consultant is obtained through an equitable selection process, that prescribed work is properly accomplished in a timely manner, and at fair and reasonable cost” and according to 23 CFR 172.5 “Price shall not be used as a factor in the analysis and selection phase.” Therefore, local agencies must comply with these CFR requirements when obtaining professional c onsultant services under a federally funded consultant contract administered by CDOT. CDOT has formulated its procedures in Procedural Directive (P.D.) 400.1 and the related operations guidebook titled "Obtaining Professional Consultant Services". This directive and guidebook incorporate requirements from both Federal and State regulations, i.e., 23 CFR 172 and CRS §24-30-1401 et seq. Copies of the directive and the guidebook may be obtained upon request from CDOT's Agreements and Consultant Management Unit . [Local agencies should have their own written procedures on file for each method of procurement that addresses the items in 23 CFR 172]. Because the procedures and laws described in the Procedural Directive and the guidebook are quite lengthy, the subsequent steps serve as a short-hand guide to CDOT procedures that a Local Agency must follow in obtaining professional consultant services. This guidance follows the format of 23 CFR 172. The steps are: 1. The contracting Local Agency shall document the need for obtaining professional services. 2. Prior to solicitation for consultant services, the contracting Local Agency shall develop a detailed scope of work and a list of evaluation factors and their relative importance. The evaluation factors are those identified in C.R.S. 24-30-1403. Also, a detailed cost estimate should be prepared for use during negotiations. 3. The contracting agency must advertise for contracts in conformity with the requirements of C.R.S. 24 -30- 1405. The public notice period, when such notice is required, is a minimum of 15 days prior to the selection of the three most qualified firms and the advertising should be done in one or more daily newspapers of general circulation. 4. The Local Agency shall not advertise any federal aid contract without prior review by the CDOT Regional Civil Rights Office (RCRO) to determine whether the contract shall be subject to a DBE contract goal. If the RCRO determines a goal is necessary, then the Local Agency shall include the goal and the applicable provisions within the advertisement. The Local Agency shall not award a contract to any Contractor or Consultant without the confirmation by the CDOT Civil Rights and Business Resource Center that the Contractor or Consultant has demonstrated good faith efforts. The Local Agency shall work with the CDOT RCRO to ensure compliance with the established terms during the performance of the contract. 5. The Local Agency shall require that all contractors pay subcontractors for satisfactory performance of work no later than 30 days after the receipt of payment for that work from the contractor. For construction projects, this tiem period shall be reduced to seven days in accordance with Colorado Revised Statute 24 -91-103(2). If the Local Agency withholds retainage from contractors and/or allows contractors to withhold retainage fr om subcontractors, such retainage provisions must comply with 49 CFR 26.29. 6. Payments to all Subconsultants shall be made within thirty days of receipt of payment from [the Local Agency] or no later than ninety days from the date of the submission of a complete invoice from the Subconsultant, whichever occurs first. If the Consultant has good cause to dispute an amount invoiced by a Subconsultant, the Consultant shall notify [the Local Agency] no later than the required date for payment. Such notification shall include the amount disputed and justification for the withholding. The Consultant shall maintain records of payment that show amounts paid to all Subconsultants. Good cause does not include the Consultant’s failure to submit an invoice to the Local Agency or to deposit payments made. 7. The analysis and selection of the consultants shall be done in accordance with CRS §24 -30-1403. This section of the regulation identifies the criteria to be used in the evaluation of CDOT pre-qualified prime consultants and their team. It also shows which criteria are used to short-list and to make a final selection. The short-list is based on the following evaluation factors: a. Qualifications, P48 VI.a Exhibit H - Page 2 of 2 b. Approach to the Work, c. Ability to furnish professional services. d. Anticipated design concepts, and e. Alternative methods of approach for furnishing the professional services. Evaluation factors for final selection are the consultant's: a. Abilities of their personnel, b. Past performance, c. Willingness to meet the time and budget requirement, d. Location, e. Current and projected work load, f. Volume of previously awarded contracts, and g. Involvement of minority consultants. 8. Once a consultant is selected, the Local Agency enters into negotiations with the consultant to obtain a fair and reasonable price for the anticipated work. Pre-negotiation audits are prepared for contracts expected to be greater than $50,000. Federal reimbursements for costs are limited to those costs allowable under the cost principles of 48 CFR 31. Fixed fees (profit) are determined with consideration given to size, complexity, duration, and degree of risk involved in the work. Profit is in the range of six to 15 percent of the total direct and indirect costs. 9. A qualified Local Agency employee shall be responsible and in charge of the Work to ensure that the work being pursued is complete, accurate, and consistent with the terms, conditions, and specifications of the contract. At the end of Work, the Local Agency prepares a performance evaluation (a CDOT form is available) on the consultant. CRS §§24-30-1401 THROUGH 24-30-1408, 23 CFR PART 172, AND P.D. 400.1, PROVIDE ADDITIONAL DETAILS FOR COMPLYING WITH THE PRECEEDING EIGHT (8) STEPS. P49 VI.a Exhibit I - Page 1 of 12 EXHIBIT I, FEDERAL-AID CONTRACT PROVISIONS FOR CONSTRUCTION CONTRACTS P50 VI.a Exhibit I - Page 2 of 12 P51 VI.a Exhibit I - Page 3 of 12 P52 VI.a Exhibit I - Page 4 of 12 P53 VI.a Exhibit I - Page 5 of 12 P54 VI.a Exhibit I - Page 6 of 12 P55 VI.a Exhibit I - Page 7 of 12 P56 VI.a Exhibit I - Page 8 of 12 P57 VI.a Exhibit I - Page 9 of 12 P58 VI.a Exhibit I - Page 10 of 12 P59 VI.a Exhibit I - Page 11 of 12 P60 VI.a Exhibit I - Page 12 of 12 P61 VI.a Exhibit J - Page 1 of 11 EXHIBIT J, ADDITIONAL FEDERAL REQUIREMENTS Federal laws and regulations that may be applicable to the Work include: Executive Order 11246 Executive Order 11246 of September 24, 1965 entitled "Equal Employment Opportunity," as amended by Executive Order 11375 of October 13, 1967 and as supplemented in Department of Labor regulations (41 CFR Chapter 60) (All construction contracts awarded in e xcess of $10,000 by the Local Agencys and their contractors or the Local Agencys). Copeland "Anti-Kickback" Act The Copeland "Anti-Kickback" Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29 CFR Part 3) (All contracts and sub-Agreements for construction or repair). Davis-Bacon Act The Davis-Bacon Act (40 U.S.C. 276a to a-7) as supplemented by Department of Labor regulations (29 CFR Part 5) (Construction contracts in excess of $2,000 awarded by the Local Agencys and the Local Agencys when required by Federal Agreement program legislation. This act requires that all laborers and mechanics employed by contractors or sub-contractors to work on construction projects financed by federal assistance must be paid wages not less than those established for the locality of the project by the Secretary of Labor). Contract Work Hours and Safety Standards Act Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327 -330) as supplemented by Department of Labor regulations (29 CFR Part 5). (Construction contracts awarded by the Local Agency’s in excess of $2,000, and in excess of $2,500 for other contracts which involve the employment of mechanics or laborers). Clear Air Act Standards, orders, or requirements issued under section 306 of the Clear Air Act (42 U.S.C. 1857(h), section 508 of the Clean Water Act (33 U.S.C. 1368). Executive Order 11738, and Environmental Protection Agency regulations (40 CFR Part 15) (contracts, subcontracts, and sub -Agreements of amounts in excess of $100,000). Energy Policy and Conservation Act Mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94-163). OMB Circulars Office of Management and Budget Circulars A-87, A-21 or A-122, and A-102 or A-110, whichever is applicable. Hatch Act The Hatch Act (5 USC 1501-1508) and Public Law 95-454 Section 4728. These statutes state that federal funds cannot be used for partisan political purposes of any kind by any person or organization involved in the administration of federally-assisted programs. Nondiscrimination The Local Agency shall not exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States on the ground of race, color national origin, sex, age or disability. Prior to the receipt of any Federal financial assistance from CDOT, the Local Agency shall execute the attached Standard DOT Title VI assurance. As appropriate, the Local Agency shall include Appendix A, B, or C to the Standard DOT Title VI assurance in any contract utilizing federal funds, land or other aid. The Local Agency shall also include the following in all contract advertisements: The [Local Agency], in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (79 Stat. 252, 42 US.C. §§ 2000d to 2000d -4) and the Regulations, hereby notifies all bidders that it will affirmatively ensure that any contract entered into pursuant to this advertisement, DBEs will be afforded full and fair opportunity to submit bids in response to this invitation and will not be discriminated against on the grouds of race, color, or national origin in consideration for any award. P62 VI.a Exhibit J - Page 2 of 11 ADA In any contract utilizing federal funds, land, or other federal aid, the Local Agency shall require the federal- aid recipient or contractor to provide a statement of written assurance that they will comply with Section 504 and not discriminate on the basis of disability. Uniform Relocation Assistance and Real Property Acquisition Policies Act The Uniform Relocation Assistance and Real Property Acquisition Policies Act, as amended (Public Law 91-646, as amended and Public Law 100-17, 101 Stat. 246-256). (If the contractor is acquiring real property and displacing households or businesses in the performance of the Agreement). Drug-Free Workplace Act The Drug-Free Workplace Act (Public Law 100-690 Title V, subtitle D, 41 USC 701 et seq.). Age Discrimination Act of 1975 The Age Discrimination Act of 1975, 42 U.S.C. Sections 6101 et. seq. and its implementing regulation, 45 C.F.R. Part 91; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, as amended, and implementing regulation 45 C.F.R. Part 84. 23 C.F.R. Part 172 23 C.F.R. Part 172, concerning "Administration of Engineering and Design Related Contracts". 23 C.F.R Part 633 23 C.F.R Part 633, concerning "Required Contract Provisions for Federal -Aid Construction Contracts". 23 C.F.R. Part 635 23 C.F.R. Part 635, concerning "Construction and Maintenance Provisions". Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973 Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973. The requirements for which are shown in the Nondiscrimination Provisions, which are attached hereto and made a part hereof. Nondiscrimination Provisions: In compliance with Title VI of the Civil Rights Act of 1964 and with Section 162(a) of the Federal Aid Highway Act of 1973, the Contractor, for itself, its assignees and successors in interest, agree as follows: i. Compliance with 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 Agreement. ii. 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. iii. 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 Agreement and the Regulations relative to nondiscrimination on the ground of race, color, sex, mental or physical handicap or national origin. iv. 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. P63 VI.a Exhibit J - Page 3 of 11 v. Sanctions for Noncompliance In the event of the Contractor's noncompliance with the nondiscrimination provisions of this Agreement, the State shall impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: a. Withholding of payments to the Contractor under the contract until the Contractor complies, and/or b. Cancellation, termination or suspension of the contract, in whole or in part. Incorporation of Provisions §22 The Contractor will include the provisions of this Exhibit J in every subcontract, including procurement of materials and leases of equipment, unless exempt by the Regulations, orders, or instructions issued pursuant thereto. The Contractor will take such action with respect to any subcontract or procurement as the State or the FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance; provided, however, that, in the event the Contractor becomes involved in, or is threatened with, litigation with a Subcontractor or supplier as a result of such direction, the Contractor may request the State to enter into such litigation to protect the interest of the State and in addition, the Contractor may request the FHWA to enter into such litigation to protect the interests of the United States. THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK P64 VI.a Exhibit J - Page 4 of 11 SAMPLE The United States Department of Transportation (USDOT) Standard Title VI/Non -Discrimination Assurances for Local Agencies DOT Order No. 1050.2A The [Local Agency] (herein referred to as the "Recipient"), HEREBY AGREES THAT, as a condition to receiving any Federal financial assistance from the U.S. Department of Transportation (DOT), through the Colorado Department of Transportation and the Federal Highway Administration (FHWA), Federal Transit Administration (FTA), and Federal Aviation Administration (FAA), is subject to and will comply with the following: Statutory/Regulatory Authorities Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); 49 C.F.R. Part 21 (entitled Non-discrimination In Federally-Assisted Programs Of The Department Of Transportation-Effectuation Of Title VI Of The Civil Rights Act Of 1964); 28 C.F.R. section 50.3 (U.S. Department of Justice Guidelines for Enforcement of Title VI of the Civil Rights Act of 1964); The preceding statutory and regulatory cites hereinafter are referred to as the "Acts" and "Regulations," respectively. General Assurances In accordance with the Acts, the Regulations, and other pertinent directives, circulars, policy, memoranda, and/or guidance, the Recipient hereby gives assurance that it will promptly take any measures necessary to ensure that: "No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity, "for which the Recipient receives Federal financial assistance from DOT, including the FHWA, FTA, or FAA. The Civil Rights Restoration Act of 1987 clarified the original intent of Congress, with respect to Title VI and other Non-discrimination requirements (The Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973), by restoring the broad, institutional-wide scope and coverage of these non- discrimination statutes and requirements to include all programs and activities of the Recipient, so long as any portion of the program is Federally assisted. Specific Assurances More specifically, and without limiting the above general Assurance, the Recipient agrees with and gives the following Assurances with respect to its Federally assisted FHWA, FTA, and FAA assisted programs: 1. The Recipient agrees that each "activity," "facility," or "program," as defined in §§ 21.23(b) and 21.23(e) of 49 C.F.R. § 21 will be (with regard to an "activity") facilitated, or will be (with regard to a "facility") operated, or will be (with regard to a "program") conducted in compliance with all requirements imposed by, or pursuant to the Acts and the Regulations. 2. The Recipient will insert the following notification in all solicitations for bids, Requests For Proposals for work, or material subject to the Acts and the Regulations made in connection with all FHWA, FTA and FAA programs and, in adapted form, in all proposals for negotiated agreements regardless of funding source: 3. "The [Local Agency] in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 US.C. §§ 2000d to 2000d-4) and the Regulations, hereby notifies all bidders that it will affirmatively ensure that any contract entered into pursuant to this advertisement, disadvantaged business enterprises will be afforded full and fair opportunity P65 VI.a Exhibit J - Page 5 of 11 4. to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, or national origin in consideration for an award." 5. The Recipient will insert the clauses of Appendix A and E of this Assurance in every contract or agree ment subject to the Acts and the Regulations. 6. The Recipient will insert the clauses of Appendix B of this Assurance, as a covenant running with the land, in any deed from the United States effecting or recording a transfer of real property, structures, us e, or improvements thereon or interest therein to a Recipient. 7. That where the Recipient receives Federal financial assistance to construct a facility, or part of a facility, the Assurance will extend to the entire facility and facilities operated in connection therewith. 8. That where the Recipient receives Federal financial assistance in the form, or for the acquisition of real property or an interest in real property, the Assurance will extend to rights to space on, over, or under such property. 9. That the Recipient will include the clauses set forth in Appendix C and Appendix D of this Assurance, as a covenant running with the land, in any future deeds, leases, licenses, permits, or similar instruments entered into by the Recipient with other parties: a. for the subsequent transfer of real property acquired or improved under the applicable activity, project, or program; and b. for the construction or use of, or access to, space on, over, or under real property acquired or improved under the applicable activity, project, or program. 10. That this Assurance obligates the Recipient for the period during which Federal financial assistance is extended to the program, except where the Federal financial assistance is to provide, or is in the form of, personal property, or real property, or interest therein, or structures or improvements thereon, in which case the Assurance obligates the Recipient, or any transferee for the longer of the following periods: a. the period during which the property is used for a purpose for which the Federal financial assistance is extended, or for another purpose involving the provision of similar services or benefits; or b. the period during which the Recipient retains ownership or possession of the property. 11. The Recipient will provide for suc h methods of administration for the program as are found by the Secretary of Transportation or the official to whom he/she delegates specific authority to give reasonable guarantee that it, other recipients, sub-recipients, sub-grantees, contractors, subcontractors, consultants, transferees, successors in interest, and other participants of Federal financial assistance under such program will comply with all requirements imposed or pursuant to the Acts, the Regulations, and this Assurance. 12. The Recipient agrees that the United States has a right to seek judicial enforcement with regard to any matter arising under the Acts, the Regulations, and this Assurance. By signing this ASSURANCE, the [Local Agency] also agrees to comply (and require any sub-recipients, sub - grantees, contractors, successors, transferees, and/or assignees to comply) with all applicable provisions governing the FHWA, FTA, and FAA’s access to records, accounts, documents, information, facilities, and s taff. You also recognize that you must comply with any program or compliance reviews, and/or complaint investigations conducted by CDOT, FHWA, FTA, or FAA. You must keep records, reports, and submit the material for review P66 VI.a Exhibit J - Page 6 of 11 upon request to CDOT, FHWA, FTA, or FAA, or its designee in a timely, complete, and accurate way. Additionally, you must comply with all other reporting, data collection, and evaluation requirements, as prescribed by law or detailed in program guidance. [Local Agency] gives this ASSURANCE in consideration of and for obtaining any Federal grants, loans, contracts, agreements, property, and/or discounts, or other Federal -aid and Federal financial assistance extended after the date hereof to the recipients by the U.S. Department of Transportation under the FHWA, FTA, and FAA. This ASSURANCE is binding on [Local Agency], other recipients, sub-recipients, sub-grantees, contractors, subcontractors and their subcontractors', transferees, successors in interest, and any other participants in the F HWA, FTA, and FAA funded programs. The person(s) signing below is authorized to sign this ASSURANCE on behalf of the Recipient. _____________________________________ (Name of Recipient) by ___________________________________ (Signature of Authorized Official) DATED________________________________ P67 VI.a Exhibit J - Page 7 of 11 APPENDIX A During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees as follows: 1. Compliance with Regulations: The contractor (hereinafter includes consultants) will comply with the Acts and the Regulations relative to Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation, FHWA, as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract. 2. Non-discrimination: The contractor, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regul ations, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR Part 21. 3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment : In all solicitations, either by competitive bidding, or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the contractor of the contra ctor's obligations under this contract and the Acts and the Regulations relative to Non-discrimination on the grounds of race, color, or national origin. 4. Information and Reports: The contractor will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the [Local Agency], CDOT or FHWA to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information, the contractor will so certify to the [Local Agency], CDOT or FHWA, as appropriate, and will set forth what efforts it has made to obtain the information. 5. Sanctions for Noncompliance: In the event of a contractor's noncompliance with the Non- discrimination provisions of this contract, the [Local Agency] will impose such contract sanctions as it, CDOT or FHWA may determine to be appropriate, including, but not limited to: a. withholding payments to the contractor under the contract until the contractor complies; and/or b. cancelling, terminating, or suspending a contract, in whole or in part. 6. Incorporation of Provisions: The contractor will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt b y the Acts, the Regulations and directives issued pursuant thereto. The contractor will take action with respect to any subcontract or procurement as the Recipient or the [Local Agency], CDOT or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the contractor may request the Recipient to enter into any litigation to protect the interests of the Recipient. In addition, the contractor may request the United States to enter into the litigation to protect the interests of the United States. P68 VI.a Exhibit J - Page 8 of 11 APPENDIX B CLAUSES FOR DEEDS TRANSFERRING UNITED STATES PROPERTY The following clauses will be included in deeds effecting or recording the transfer of real property, structures, or improvements thereon, or granting interest therein from the United States pursuant to the provisions of Assurance 4: NOW, THEREFORE, the U.S. Department of Transportation as authorized by law and upon the condition that the [Local Agency] will accept title to the lands and maintain the project constructed thereon in accordance with (Name of Appropriate Legislative Authority), the Regulations for the Administration of (Name of Appropriate Program), and the policies and procedures prescribed by the FHWA of the U.S. Department of Transportation in accordance and in compliance with all requirements imposed by Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S Department of Transportation pertaining to and effectuating the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. § 2000d to 2000d-4), does hereby remise, release, quitclaim and convey unto the [Local Agency] all the right, title and interest of the U.S. Department of Transportation in and to said lands described in Exhibit A attached hereto and made a part hereof. (HABENDUM CLAUSE) TO HAVE AND TO HOLD said lands and interests therein unto [Local Agency] and its successors forever, subject, however, to the covenants, conditions, restrictions and reservations herein contained as follows, which will remain in effect for the period during which the real property or structures are used for a purpose for which Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits and will be binding on the [Local Agency] its successors and assigns. The [Local Agency], in consideration of the conveyance of said lands and interests in lands, does hereby covenant and agree as a covenant running with the land for itself, its successors and assigns, that (1) no person will on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination with regard to any facility located wholly or in part on, over, or under such lands hereby conveyed [,] [and]* (2) that the [Local Agency] will use the lands and interests in lands and interests in lands so conveyed, in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation, Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations and Acts may be amended [, and (3 ) that in the event of breach of any of the above-mentioned non-discrimination conditions, the Department will have a right to enter or re -enter said lands and facilities on said land, and that above described land and facilities will thereon revert to and vest in and become the absolute property of the U.S. Department of Transportation and its assigns as such interest existed prior to this instruction].* (*Reverter clause and related language to be used only when it is determined that such a clause is nec essary in order P69 VI.a Exhibit J - Page 9 of 11 APPENDIX C CLAUSES FOR TRANSFER OF REAL PROPERTY ACQUIRED OR IMPROVED UNDER THE ACTIVITY, FACILITY, OR PROGRAM The following clauses will be included in deeds, licenses, leases, permits, or similar inst ruments entered into by the [Local Agency] pursuant to the provisions of Assurance 7(a): A. The (grantee, lessee, permittee, etc. as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree [in the case of deeds and leases add "as a covenant running with the land"] that: 1. In the event facilities are constructed, maintained, or otherwise operated on the property described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S. Department of Transportation activity, facility, or program is extended or for another purpose involving the provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.) will maintain and operate such facilities and services in compliance with all requirements imposed by the Acts and Regulations (as may be amended) such that no person on the grounds of race, color, or national origin, will be excluded from participat ion in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities. B. With respect to licenses, leases, permits, etc., in the event of breach of any of the above Non-discrimination covenants, [Local Agency] will have the right to terminate the (lease, license, permit, etc.) and to enter, re-enter, and repossess said lands and facilities thereon, and hold the same as if the (lease, license, permit, etc.) had never been made or issued.* C. With respect to a deed, in the event of breach of any of the above Non-discrimination covenants, the [Local Agency] will have the right to enter or re-enter the lands and facilities thereon, and the above described lands and facilities will there upon revert to and vest in and become the absolute property of the [Local Agency] and its assigns.* (*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.) P70 VI.a Exhibit J - Page 10 of 11 APPENDIX D CLAUSES FOR CONSTRUCTION/USE/ACCESS TO REAL PROPERTY ACQUIRED UNDER THE ACTIVITY, FACILITY OR PROGRAM The following clauses will be included in deeds, licenses, permits, or similar instruments/agreements entered into by [Local Agency] pursuant to the provisions of Assurance 7(b): A. The (grantee, licensee, permittee, etc., as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds and leases add, "as a covenant running with the land") that (1) no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under such land, and the furnishing of services thereon, no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, (3) that the (grantee, licensee, lessee, permittee, etc.) will use the premises in compliance with all other requirements imposed by or pursuant to the Acts and Regulations, as amended, set forth in this Assurance. B. With respect to (licenses, leases, permits, etc.), in the event of breach of any of the above Non- discrimination covenants, [Local Agency] will have the right to terminate the (license, permit, etc., as appropriate) and to enter or re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, permit, etc., as appropriate) had never been made or issued.* C. With respect to deeds, in the event of breach of any of the above Non-discrimination covenants, [Local Agency] will there upon revert to and vest in and become the absolute property of [Local Agency] of Transportation and its assigns.* (*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.) P71 VI.a Exhibit J - Page 11 of 11 APPENDIX E During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees to comply with the following non-discrimination statutes and authorities; including but not limited to: Pertinent Non-Discrimination Authorities: Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property h as been acquired because of Federal or Federal-aid programs and projects); Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of sex); Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR Part 27; The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age); Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); The Civil Rights Restoration Act of 1987, (PL 100 -209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not); Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 -12189) as implemented by Department of Transportation regulations at 49 C.F.R. parts 37 and 38; The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of Limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable step s to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq). P72 VI.a Exhibit K - Page 1 of 4 EXHIBIT K, FFATA SUPPLEMENTAL FEDERAL PROVISIONS State of Colorado Supplemental Provisions for Federally Funded Contracts, Grants, and Purchase Orders Subject to The Federal Funding Accountability and Transparency Act of 2006 (FFATA), As Amended Revised as of 3-20-13 The contract, grant, or purchase order to which these Supplemental Provisions are attached has been funded, in whole or in part, with an Award of Federal funds. In the event of a conflict between the provisions of these Supplemental Provisions, the Special Provisions, the contract or any attachments or exhibits incorporated into and made a part of the contract, the provisions of these Supplemental Provisions shall control. 1. Definitions. For the purposes of these Supplemental Provisions, the following terms shall have the meanings ascribed to them below. 1.1. “Award” means an award of Federal financial assistance that a non -Federal Entity receives or administers in the form of: 1.1.1. Grants; 1.1.2. Contracts; 1.1.3. Cooperative agreements, which do not include cooperative research and development agreements (CRDA) pursuant to the Federal Technology Transfer Act of 1986, as amended (15 U.S.C. 3710); 1.1.4. Loans; 1.1.5. Loan Guarantees; 1.1.6. Subsidies; 1.1.7. Insurance; 1.1.8. Food commodities; 1.1.9. Direct appropriations; 1.1.10. Assessed and voluntary contributions; and 1.1.11. Other financial assistance transactions that authorize the expenditure of Federal funds by non-Federal Entities. Award does not include: 1.1.12. Technical assistance, which provides services in lieu of money; 1.1.13. A transfer of title to Federally-owned property provided in lieu of money; even if the award is called a grant; 1.1.14. Any award classified for security purposes; or 1.1.15. Any award funded in whole or in part with Recovery funds, as defined in section 1512 of the American Recovery and Reinvestment Act (ARRA) of 2009 (Public Law 111 -5). 1.2. “Contract” means the contract to which these Supplemental Provisions are attached and includes all Award types in §1.1.1 through 1.1.11 above. 1.3. “Contractor” means the party or parties to a Contract funded, in whole or in part, with Federal financial assistance, other than the Prime Recipient, and includes grantees, subgrantees, Subrecipients, and borrowers. For purposes of Transparency Act reporting, Contractor does not include Vendors. 1.4. “Data Universal Numbering System (DUNS) Number” means the nine-digit number established and assigned by Dun and Bradstreet, Inc. to uniquely identify a business entity. Dun and Bradstreet’s website may be found at: http://fedgov.dnb.com/webform. 1.5. “Entity” means all of the following as defined at 2 CFR part 25, subpart C; 1.5.1. A governmental organization, which is a State, local government, or Indian Tribe; 1.5.2. A foreign public entity; 1.5.3. A domestic or foreign non-profit organization; P73 VI.a Exhibit K - Page 2 of 4 1.5.4. A domestic or foreign for-profit organization; and 1.5.5. A Federal agency, but only a Subrecipient under an Award or Subaward to a non-Federal entity. 1.6. “Executive” means an officer, managing partner or any other employee in a management position. 1.7. “Federal Award Identification Number (FAIN)” means an Award number assigned by a Federal agency to a Prime Recipient. 1.8. “FFATA” means the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109 - 282), as amended by §6202 of Public Law 110 -252. FFATA, as amended, also is referred to as the “Transparency Act.” 1.9. “Prime Recipient” means a Colorado State agency or institution of higher education that receives an Award. 1.10. “Subaward” means a legal instrument pursuant to which a Prime Recipient of Award funds awards all or a portion of such funds to a Subrecipient, in exchange for the Subrecipient’s support in the performance of all or any portion of the substantive project or program for which the Award was granted. 1.11. “Subrecipient” means a non-Federal Entity (or a Federal agency under an Award or Subaward to a non - Federal Entity) receiving Federal funds through a Prime Recipient to support the performance of the Federal project or program for which the Federal funds were awarded. A Subrecipient is subject to the terms and conditions of the Federal Award to the Prime Recipient, including program compliance requirements. The term “Subrecipient” includes and may be referred to as Subgrantee. 1.12. “Subrecipient Parent DUNS Number” means the subrecipient parent organization’s 9-digit Data Universal Numbering System (DUNS) number that appears in the subrecipient’s System for A ward Management (SAM) profile, if applicable. 1.13. “Supplemental Provisions” means these Supplemental Provisions for Federally Funded Contracts, Grants, and Purchase Orders subject to the Federal Funding Accountability and Transparency Act of 2006, As Amended, as may be revised pursuant to ongoing guidance from the relevant Federal or State of Colorado agency or institution of higher education. 1.14. “System for Award Management (SAM)” means the Federal repository into which an Entity must enter the information required under the Transparency Act, which may be found at http://www.sam.gov. 1.15. “Total Compensation” means the cash and noncash dollar value earned by an Executive during the Prime Recipient’s or Subrecipient’s preceding fiscal year and includes the following: 1.15.1. Salary and bonus; 1.15.2. Awards of stock, stock options, and stock appreciation rights, using the dollar amount recognized for financial statement reporting purposes with respect to the fiscal year in accordance with the Statement of Financial Accounting Standard s No. 123 (Revised 2005) (FAS 123R), Shared Based Payments; 1.15.3. Earnings for services under non-equity incentive plans, not including group life, health, hospitalization or medical reimbursement plans that do not discriminate in favor of Executives and are available generally to all salaried employees; 1.15.4. Change in present value of defined benefit and actuarial pension plans; 1.15.5. Above-market earnings on deferred compensation which is not tax-qualified; 1.15.6. Other compensation, if the aggregate value of all such other compensation (e.g. severance, termination payments, value of life insurance paid on behalf of the employee, perquisites or property) for the Executive exceeds $10,000. 1.16. “Transparency Act” means the Federal Funding Accountability and Transparency Act of 2006 (P ublic Law 109-282), as amended by §6202 of Public Law 110-252. The Transparency Act also is referred to as FFATA. 1.17 “Vendor” means a dealer, distributor, merchant or other seller providing property or services required for a project or program funded by an Award. A Vendor is not a Prime Recipient or a Subrecipient and is not subject to the terms and conditions of the Federal award. Program compliance requirements do not pass through to a Vendor. P74 VI.a Exhibit K - Page 3 of 4 2. Compliance. Contractor shall comply with all applicable provisions of the Transparency Act and the regulations issued pursuant thereto, including but not limited to these Supplemental Provisions. Any revisions to such provisions or regulations shall automatically become a part of these Supplemental Provisions , without the necessity of either party executing any further instrument. The State of Colorado may provide written notification to Contractor of such revisions, but such notice shall not be a condition precedent to the effectiveness of such revisions. 3. System for Award Management (SAM) and Data Universal Numbering System (DUNS) Requirements. 3.1. SAM. Contractor shall maintain the currency of its information in SAM until the Contractor submits the final financial report required under the Award or receives final payment, whichever is later. Contractor shall review and update SAM information at least annually after the initial registration, and more frequently if required by changes in its information. 3.2. DUNS. Contractor shall provide its DUNS number to its Prime Recipient, and shall update Contractor’s information in Dun & Bradstreet, Inc. at least annually after the initial registration, and more frequently if required by changes in Contractor’s information. 4. Total Compensation. Contractor shall include Total Compensation in SAM for each of its five most highly compensated Executives for the preceding fiscal year if: 4.1. The total Federal funding authorized to date under the Award is $25,000 or more; and 4.2. In the preceding fiscal year, Contractor received: 4.2.1. 80% or more of its annual gross revenues from Federal procurement contracts and subcontracts and/or Federal financial assistance Awards or Subawards subject to the Transparency Act; and 4.2.2. $25,000,000 or more in annua l gross revenues from Federal procurement contracts and subcontracts and/or Federal financial assistance Awards or Subawards subject to the Transparency Act; and 4.3. The public does not have access to information about the compensation of such Executives throu gh periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d) or § 6104 of the Internal Revenue Code of 1986. 5. Reporting. Contractor shall report data elements to SAM and to the Prime Recipient as required in §7 below if Contractor is a Subrecipient for the Award pursuant to the Transparency Act. No direct payment shall be made to Contractor for providing any reports required under these Supplemental Provisions and the cost of producing such reports shall be included in the Contract price. The reporting requirements in §7 below are based on guidance from the US Office of Management and Budget (OMB), and as such are subject to change at any time by OMB. Any such changes shall be automatically incorporated into this Contract and shall become part of Contractor’s obligations under this Contract, as provided in §2 above. The Colorado Office of the State Controller will provide summaries of revised OMB reporting requirements at http://www.colorado.gov/dpa/dfp/sco/FFATA.htm. 6. Effective Date and Dollar Threshold for Reporting. The effective date of these Supplemental Provisions apply to new Awards as of October 1, 2010. Reporting requirements in §7 below apply to new Awards as of October 1, 2010, if the initial award is $25,000 or more. If the initial Award is below $25,000 but subsequent Award modifications result in a total Award of $25,000 or more, the Award is subject to the reporting requirements as of the date the Award exceeds $25,000. If the initial Award is $25,000 or more, but funding is subsequently de-obligated such that the total award amount falls below $25,000, the Award shall continue to be subject to the reporting requirements. 7. Subrecipient Reporting Requirements. If Contractor is a Subrecipient, Contractor shall report as set forth below. P75 VI.a Exhibit K - Page 4 of 4 7.1 ToSAM. A Subrecipient shall register in SAM and report the following data elements in SAM for each Federal Award Identification Number no later than the end of the month following the month in which the Subaward was made: 7.1.1 Subrecipient DUNS Number; 7.1.2 Subrecipient DUNS Number + 4 if more than one electronic funds transfer (EFT) account; 7.1.3 Subrecipient Parent DUNS Number; 7.1.4 Subrecipient’s address, including: Street Address, City, State, Country, Zip + 4, and Congressional District; 7.1.5 Subrecipient’s top 5 most highly compensated Executives if the criteria in §4 above are met; and 7.1.6 Subrecipient’s Total Compensation of top 5 most highly compensated Executives if criteria in §4 above met. 7.2 To Prime Recipient. A Subrecipient shall report to its Prime Recipient, upon the effective date of the Contract, the following data elements: 7.2.1 Subrecipient’s DUNS Number as registered in SAM. 7.2.2 Primary Place of Performance Information, including: Street Address, City, State, Country, Zip code + 4, and Congressional District. 8. Exemptions. 8.1. These Supplemental Provisions do not apply to an individual who receives an Award as a natural person, unrelated to any business or non-profit organization he or she may own or operate in his or her name. 8.2 A Contractor with gross income from all sources of less than $300,000 in the previous tax year is exempt from the requirements to report Subawards and the Total Compensation of its most highly compensated Executives. 8.3 Effective October 1, 2010, “Award” currently means a grant, cooperative agreement, or other arrangement as defined in Section 1.1 of these Special Provisions. On future dates “Award” may include other items to be specified by OMB in policy memoranda available at the OMB Web site; Award also will include other types of Awards subject to the Transparency Act. 8.4 There are no Transparency Act reporting requirements for Vendors. Event of Default. Failure to comply with these Supplemental Provisions shall constitute an event of default under the Contract and the State of Colorado may terminate the Contract upon 30 days prior written notice if the default remains uncured five calendar days following the termination of the 30 day notice period. This remedy will be in addition to any other remedy available to the State of Colorado under the Contract, at law or in equity. P76 VI.a Exhibit L - Page 1 of 3 EXHIBIT L, SAMPLE SUBRECIPIENT MONITORING AND RISK ASSESSMENT P77 VI.a Exhibit L - Page 2 of 3 P78 VI.a Exhibit L - Page 3 of 3 P79 VI.a Exhibit M - Page 1 of 5 EXHIBIT M, OMB Uniform Guidance for Federal Awards Subject to The Office of Management and Budget Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (“Uniform Guidance”), Federal Register, Vol. 78, No. 248, 78590 The agreement to which these Uniform Guidance Supplemental Provisions are attached has been funded, in whole or in part, with an award of Federal funds. In the event of a conflict between the provisions of these Supplemental Provisions, the Special Provisions, the agreement or any attachments or exhibits incorporated into and made a part of the agreement, the provisions of these Uniform Guidance Supplemental Provisions shall control. In the event of a conflict between the provisions of these Supplemental Provisions and the FFATA Supplemental Provisions, the FFATA Supplemental Provisions shall control. 9. Definitions. For the purposes of these Supplemental Provisions, the following terms shall have the meanings ascribed to them below. 9.1. “Award” means an award by a Recipient to a Subrecipient funded in whole or in part by a Federal Award. The terms and conditions of the Federal Award flow down to the Award un less the terms and conditions of the Federal Award specifically indicate otherwise. 2 CFR §200.38 9.2. “Federal Award” means an award of Federal financial assistance or a cost-reimbursement contract under the Federal Acquisition Requirements by a Federal Awarding Agency to a Recipient. “Federal Award” also means an agreement setting forth the terms and conditions of the Federal Award. The term does not include payments to a contractor or payments to an individual that is a beneficiary of a Federal program. 9.3. “Federal Awarding Agency” means a Federal agency providing a Federal Award to a Recipient. 2 CFR §200.37 9.4. “FFATA” means the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109 - 282), as amended by §6202 of Public Law 110 -252. 9.5. “Grant” or “Grant Agreement” means an agreement setting forth the terms and conditions of an Award. The term does not include an agreement that provides only direct Federal cash assistance to an individual, a subsidy, a loan, a loan guarantee, insurance, or acquires property or services for the direct benefit of use of the Federal Awarding Agency or Recipient. 2 CFR §200.51. 9.6. “OMB” means the Executive Office of the President, Office of Management and Budget. 9.7. “Recipient” means a Colorado State department, agency or institution of higher education that receives a Federal Award from a Federal Awarding Agency to carry out an activity under a Federal program. The term does not include Subrecipients. 2 CFR §200.86 9.8. “State” means the State of Colorado, acting by and through its departments, agencies and institutions of higher education. 9.9. “Subrecipient” means a non-Federal entity receiving an Award from a Recipient to carry out part of a Federal program. The term does not include an individual who is a beneficiary of such p rogram. 9.10. “Uniform Guidance” means the Office of Management and Budget Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, which supersedes requirements from OMB Circulars A-21, A-87, A-110, and A-122, OMB Circulars A-89, A-102, and A- 133, and the guidance in Circular A-50 on Single Audit Act follow-up. The terms and conditions of the Uniform Guidance flow down to Awards to Subrecipients unless the Uniform Guidance or the terms and conditions of the Federal Award specifically indicate otherwise. 9.11. “Uniform Guidance Supplemental Provisions” means these Supplemental Provisions for Federal Awards subject to the OMB Uniform Guidance, as may be revised pursuant to ongoing guidance from relevant Federal agencies or the Colorado State Controller. 10. Compliance. Subrecipient shall comply with all applicable provisions of the Uniform Guidance, including but not limited to these Uniform Guidance Supplemental Provisions. Any revisions to such provisions P80 VI.a Exhibit M - Page 2 of 5 automatically shall become a part of these Supplemental Provisions, without the necessity of either party executing any further instrument. The State of Colorado may provide written notification to Subrecipient of such revisions, but such notice shall not be a condition precedent to the effectiveness of such revisions. 11. Procurement Standards. 3.1 Procurement Procedures. Subrecipient shall use its own documented procurement procedures which reflect applicable State, local, and Tribal laws and regulations, provided that the procurements conform to applicable Federal law and the standards identified in the Uniform Guidance, including without limitation, §§200.318 through 200.326 thereof. 3.2 Procurement of Recovered Materials. If Subrecipient is a State Agency or an agency of a political subdivision of a state, its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines. 4. Access to Records. Subrecipient shall permit Recipient and auditors to have access to Subrecipient’s records and financial statements as necessary for Recipient to meet the requirements of §200.331 (Re quirements for pass-through entities), §§200.300 (Statutory and national policy requirements) through 200.309 (Period of performance), and Subpart F-Audit Requirements of the Uniform Guidance. 2 CFR §200.331(a)(5). 5. Single Audit Requirements. If Subrecipient expends $750,000 or more in Federal Awards during Subrecipient’s fiscal year, Subrecipient shall procure or arrange for a single or program -specific audit conducted for that year in accordance with the provisions of Subpart F-Audit Requirements of the Uniform Guidance, issued pursuant to the Single Audit Act Amendments of 1996, (31 U.S.C. 7501 -7507). 2 CFR §200.501. 5.1 Election. Subrecipient shall have a single audit conducted in accordance with Uniform Guidance §200.514 (Scope of audit), except when it elects to have a program-specific audit conducted in accordance with §200.507 (Program-specific audits). Subrecipient may elect to have a program-specific audit if Subrecipient expends Federal Awards under only one Federal program (excluding research and development) and the Federal program's statutes, regulations, or the terms and conditions of the Federal award do not require a financial statement audit of Recipient. A program-specific audit may not be elected for research and development unless all of the Federal Awards expended were received from Recipient and Recipient approves in advance a program-specific audit. 5.2 Exemption. If Subrecipient expends less than $750,000 in Federal Awards during its fiscal year, Subrecipient shall be exempt from Federal audit requirements for that year, except as noted in 2 CFR §200.503 (Relation to other audit requirements), but records shall be available for review or audit by appropriate officials of the Federal agency, the State, and the Government Ac countability Office. 5.3 Subrecipient Compliance Responsibility. Subrecipient shall procure or otherwise arrange for the audit required by Part F of the Uniform Guidance and ensure it is properly performed and submitted when due in accordance with the Uniform Guidance. Subrecipient shall prepare appropriate financial statements, including the schedule of expenditures of Federal awards in accordance with Uniform Guidance §200.510 (Financial statements) and provide the auditor with access to personnel, acco unts, books, records, supporting documentation, and other information as needed for the auditor to perform the audit required by Uniform Guidance Part F-Audit Requirements. 6. Contract Provisions for Subrecipient Contracts. Subrecipient shall comply with and shall include all of the following applicable provisions in all subcontracts entered into by it pursuant to this Grant Agreement. P81 VI.a Exhibit M - Page 3 of 5 6.1 Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of “federally assisted construction contract” in 41 CFR Part 60 -1.3 shall include the equal opportunity clause provided under 41 CFR 60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 CFR Part, 1964 -1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 CFR part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.” “During the performance of this contract, the contractor agrees as follows: (1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause. (2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. (3) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (4) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (5) The contractor will furnish all information and reports required by Execu tive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. (6) In the event of the contractor's non-compliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be canceled, terminated or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (7) The contractor will include the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provision s including sanctions for noncompliance: Provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States.” 4.2 Davis-Bacon Act. Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 award ed by non-Federal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 3141-3144, and 3146- P82 VI.a Exhibit M - Page 4 of 5 3148) as supplemented by Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non -Federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-Federal entity must report all suspected or reported violations to the Federal awarding agency. The contracts must also include a provision for compliance with the Copeland “Anti-Kickback” Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or Subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is other wise entitled. The non-Federal entity must report all suspected or reported violations to the Federal awarding agency. 4.3 Rights to Inventions Made Under a Contract or Agreement. If the Federal Award meets the definition of “funding agreement” under 37 CFR §401.2 (a) and Subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” Subrecipient must comply with the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency. 4.4 Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251-1387), as amended. Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non-Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). 4.5 Debarment and Suspension (Executive Orders 12549 and 12689). A contract award (see 2 CFR 180.220) must not be made to parties listed on the government wide exc lusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. 4.6 Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Eac h tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non-Federal award. 7. Certifications. Unless prohibited by Federal statutes or regulations, Recipient may require Subrecipient to submit certifications and representations required by Federal statutes or regulations on an annual basis. 2 CFR §200.208. Submission may be required more frequently if Subrecipient fails to me et a requirement of the Federal award. Subrecipient shall certify in writing to the State at the end of the Award that the project or activity was completed or the level of effort was expended. 2 CFR §200.201(3). If the required level of activity or effort was not carried out, the amount of the Award must be adjusted. 1. 8. Event of Default. Failure to comply with these Uniform Guidance Supplemental Provisions shall constitute an event of default under the Grant Agreement (2 CFR §200.339) and the State may terminate the Grant upon 30 P83 VI.a Exhibit M - Page 5 of 5 days prior written notice if the default remains uncured five calendar days following the termination of the 30 day notice period. This remedy will be in addition to any other remedy available to the State of Colorado under the Grant, at law or in equity. 9. Effective Date. The effective date of the Uniform Guidance is December 26, 2013. 2 CFR §200.110. The procurement standards set forth in Uniform Guidance §§200.317-200.326 are applicable to new Awards made by Recipient as of December 26, 2015. The standards set forth in Uniform Guidance Subpart F -Audit Requirements are applicable to audits of fiscal years beginning on or after December 26, 2014. 10. Performance Measurement The Uniform Guidance requires completion of OMB-approved standard information collection forms (the PPR). The form focuses on outcomes, as related to the Federal Award Performance Goals that awarding Federal agencies are required to detail in the Awards. Section 200.301 provides guidance to Federal agencies to measure performance in a way that will help the Federal awarding agency and other non-Federal entities to improve program outcomes. The Federal awarding agency is required to provide recipients with clear performance goals, indicators, and milestones (200.210). Also, must require the recipient to relate financial data to performance accomplishments of the Federal award. P84 VI.a Page 1 of 3 MEMORANDUM TO: Mayor and City Council FROM: Andy Rossello P.E., Project Manager II THRU: Ryan Loebach P.E., Senior Project Manager Tyler Christoff P.E., Deputy Director of Utilities Trish Aragon P.E., City Engineer DATE OF MEMO: June 18th, 2018 MEETING DATE: June 25th, 2018 RE: Resolution s #94 and 95, Series of 2018 - As Needed - Development Inspection Services: Professional Services Contract Approval REQUEST: Staff requests Council approval to award two development inspection services contracts to the following companies: Phil Vaughn Construction Management, Inc (PVCMI) and Merrick & Company. PREVIOUS COUNCIL ACTION: Council previously approved the following development inspection services contracts: · Original Contract: Resolution #78, Series of 2016 - Development Inspection Services - Contract for Professional Services (expired June 1, 2017). · Change Order Request: Resolution #92, Series of 2017 - Development Inspection Services Change Order (expired June 1, 2018). · Change Order Request: Resolution #18 and Resolution #19, Series of 2018 – Development Inspection Services Contract (expired June 1, 2018). BACKGROUND: To maintain and operate a water and electric system at a high-quality level it is imperative to have rigorous design review and field inspection services. These services ensure that Utility and Right-of-Way improvements, which the City may take ownership and responsibility of, are installed in accordance with the most up to date Federal, State, and Local requirements. The development inspection services contracts allow the City to supplement staffing on an hourly basis during times of increased fieldwork. The City has selected two separate companies through a competitive bid process, both of which are intimately familiar with the City of Aspen’s Utility and Right-of-Way standards. To remove any potential conflict of interest, any consultant engineer will not be allowed to perform design review and inspection of their own design and submitted development projects. Instead, P85 VI.b Page 2 of 3 consultants contracted through this Contract will provide a third-party review of developer- driven projects within the City. Services provided under these contracts will be delivered on a revolving basis with the expectation that both firms would have the opportunity to work with City staff as-needed. DISCUSSION: Proposals were received from five firms noted below: PVCMI JVA Consulting Engineers Merrick & Company Roaring Fork Engineering JA Watts A team of three employees from the Utilities and Engineering Departments, performed independent reviews of all three proposals. Teams were scored on their work plan, company and team member qualifications, firm capability, proximity to Aspen, and cost. PVCMI and Merrick & Company were selected based on staff scoring. Both PVCMI and Merrick & Company proposals thoroughly addressed all aspects of the City’s scope of work. Staff felt that both firms provided the most comprehensive professional services to the City for this project. FINANCIAL IMPLICATIONS: Staff intends to use Utilities and Engineering funding dedicated and approved for this Project by City Council. Total Project Expenditures Merrick and Company 2018 anticipated work scope $ 36,500.00 PVCMI 2018 anticipated work scope $ 36,500.00 Contingency $ 8,500.00 Total $ 81,500.00 2018 Funding Budgeted Utilities 2018 Funding Development Review $ 56,500.00 Engineering 2018 Funding Right-of-Way Inspection $ 25,000.00 Total $ 81,500.00 RECOMMENDED ACTION: Staff requests Council approval to award two development inspection services contracts to the following companies: Phil Vaughn Construction Management, Inc (PVCMI) and Merrick & Company. ALTERNATIVES: Council can choose any individual companies above, however choosing one may create potential for conflicts of interest as many firms are also involved with development design. The City actively utilizes these services to protect the community safety and assets. By electing not to authorize these contracts the City is exposed to additional risk. P86 VI.b Page 3 of 3 These risks may include, substandard installation of critical infrastructure, safety of the public, and a decreased lifespan of City assets. CITY MANAGER COMMENTS: ATTACHMENTS: A – Resolution #094, Series 2018 – PVCMI Development Inspection Services Contract B – Resolution #095, Series 2018 – Merrick & Company Development Inspection Services Contract C – Contract with PVCMI D – Contract with Merrick & Company P87 VI.b RESOLUTION # 94 (Series of 2018) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND PVCMI AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a contract for the As Needed - Development Inspection Services, between the City of Aspen and PVCMI, a true and accurate copy of which is attached hereto as Exhibit “A”; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Contract As-Needed - Development Inspection Services between the City of Aspen and PVCMI, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 25th day of June, 2018. Steven Skadron, Mayor I, Linda Manning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held, June, 25, 2018. Linda Manning, City Clerk P88 VI.b RESOLUTION # 95 (Series of 2018) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND MERRICK & COMPANY AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a contract for the As Needed - Development Inspection Services, between the City of Aspen and Merrick & Company, a true and accurate copy of which is attached hereto as Exhibit “A”; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Contract As-Needed - Development Inspection Services between the City of Aspen and Merrick & Company, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 25th day of June, 2018. Steven Skadron, Mayor I, Linda Manning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held, June, 25, 2018. Linda Manning, City Clerk P89 VI.b Agreement Professional Services Page 0 CITY OF ASPEN STANDARD FORM OF AGREEMENT V 2009 PROFESSIONAL SERVICES City of Aspen Contract No.: 2018-064. AGREEMENT made as of 25th day of June, in the year 2018. BETWEEN the City: Contract Amount: The City of Aspen c/o Water 130 South Galena Street Aspen, Colorado 81611 Phone: (970) 920-5079 And the Professional: Phil Vaughan Construction Management Inc. c/o Phil Vaughan 1038 County Road 323 Rifle, CO 81650 Phone: 970-625-5350 For the Following Project: As-needed Development Inspection Services Exhibits appended and made a part of this Agreement: The City and Professional agree as set forth below. If this Agreement requires the City to pay an amount of money in excess of $25,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. City Council Approval: Date: ___________________________ Resolution No.:___________________ Exhibit A: Scope of Work. Exhibit B: Fee Schedule. Total: $0.00 P90 VI.b Agreement Professional Services Page 1 1. Scope of Work. Professional shall perform in a competent and professional manner the Scope of Work as set forth at Exhibit A attached hereto and by this reference incorporated herein. 2. Completion. Professional shall commence Work immediately upon receipt of a written Notice to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is consistent with professional skill and care and the orderly progress of the Work in a timely manner. The parties anticipate that all Work pursuant to this Agreement shall be completed no later than January 31, 2020. Upon request of the City, Professional shall submit, for the City's approval, a schedule for the performance of Professional's services which shall be adjusted as required as the project proceeds, and which shall include allowances for periods of time required by the City's project engineer for review and approval of submissions and for approvals of authorities having jurisdiction over the project. This schedule, when approved by the City, shall not, except for reasonable cause, be exceeded by the Professional. 3. Payment. In consideration of the work performed, City shall pay Professional on a time and expense basis for all work performed. The hourly rates for work performed by Professional shall not exceed those hourly rates set forth at Exhibit B appended hereto. Except as otherwise mutually agreed to by the parties the payments made to Professional shall not initially exceed the amount set forth above. Professional shall submit, in timely fashion, invoices for work performed. The City shall review such invoices and, if they are considered incorrect or untimely, the City shall review the matter with Professional within ten days from receipt of the Professional's bill. 4. Non-Assignability. Both parties recognize that this Agreement is one for personal services and cannot be transferred, assigned, or sublet by either party without prior written consent of the other. Sub-Contracting, if authorized, shall not relieve the Professional of any of the responsibilities or obligations under this Agreement. Professional shall be and remain solely responsible to the City for the acts, errors, omissions or neglect of any subcontractors’ officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Professional to the extent of the subcontract. The City shall not be obligated to pay or be liable for payment of any sums due which may be due to any sub-contractor. 5. Termination of Procurement. The sale contemplated by this Agreement may be canceled by the City prior to acceptance by the City whenever for any reason and in its sole discretion the City shall determine that such cancellation is in its best interests and convenience. 6. Termination of Professional Services. The Professional or the City may terminate the Professional Services component of this Agreement, without specifying the reason therefor, by giving notice, in writing, addressed to the other party, specifying the effective date of the termination. No fees shall be earned after the effective date of the termination. Upon any termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or other material prepared by the Professional pursuant to this Agreement shall become the property of the City. Notwithstanding the above, Professional shall not be relieved of any liability to the City for damages sustained by the City by virtue of any breach of this Agreement by the Professional, and the City may withhold any payments to the Professional for the purposes of set-off until such time as the exact amount of damages due the City from the Professional may be determined. P91 VI.b Agreement Professional Services Page 2 7. Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this agreement shall result in, or be construed as establishing an employment relationship. Professional shall be, and shall perform as, an independent Contractor who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or servant of Professional shall be, or shall be deemed to be, the employee, agent or servant of the City. City is interested only in the results obtained under this contract. The manner and means of conducting the work are under the sole control of Professional. None of the benefits provided by City to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, are available from City to the employees, agents or servants of Professional. Professional shall be solely and entirely responsible for its acts and for the acts of Professional's agents, employees, servants and subcontractors during the performance of this contract. Professional shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with respect to Professional and/or Professional's employees engaged in the performance of the services agreed to herein. 8. Indemnification. Professional agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this contract, to the extent and for an amount represented by the degree or percentage such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the wrongful act, omission, error, professional error, mistake, negligence, or other fault of the Professional, any subcontractor of the Professional, or any officer, employee, representative, or agent of the Professional or of any subcontractor of the Professional, or which arises out of any workmen's compensation claim of any employee of the Professional or of any employee of any subcontractor of the Professional. The Professional agrees to investigate, handle, respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of the Professional, or at the option of the City, agrees to pay the City or reimburse the City for the defense costs incurred by the City in connection with, any such liability, claims, or demands. If it is determined by the final judgment of a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse the Professional for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 9. Professional's Insurance. (a) Professional agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 8 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Professional shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 8 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. P92 VI.b Agreement Professional Services Page 3 (b) Professional shall procure and maintain, and shall cause any subcontractor of the Professional to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance acceptable to the City. All coverages shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 8 above. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. (i) Workers’ Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers' Liability insurance with minimum limits of ONE MILLION DOLLARS ($1,000,000.00) for each accident, ONE MILLION DOLLARS ($1,000,000.00) disease - policy limit, and ONE MILLION DOLLARS ($1,000,000.00) disease - each employee. Evidence of qualified self-insured status may be substituted for the Workers' Compensation requirements of this paragraph. (ii) Commercial General Liability insurance with minimum combined single limits of TWO MILLION DOLLARS ($2,000,000.00) each occurrence and TWO MILLION DOLLARS ($2,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall contain a severability of interests provision. (iii) Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate with respect to each Professional's owned, hired and non- owned vehicles assigned to or used in performance of the Scope of Work. The policy shall contain a severability of interests provision. If the Professional has no owned automobiles, the requirements of this Section shall be met by each employee of the Professional providing services to the City under this contract. (iv) Professional Liability insurance with the minimum limits of ONE MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000) aggregate. (c) The policy or policies required above shall be endorsed to include the City and the City's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the City, its officers or employees, or carried by or provided through any insurance pool of the City, shall be excess and not contributory insurance to that provided by Professional. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Professional shall be solely responsible for any deductible losses under any policy required above. P93 VI.b Agreement Professional Services Page 4 (d) The certificate of insurance provided to the City shall be completed by the Professional's insurance agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identify this contract and shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City. (e) Failure on the part of the Professional to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of contract upon which City may immediately terminate this contract, or at its discretion City may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by City shall be repaid by Professional to City upon demand, or City may offset the cost of the premiums against monies due to Professional from City. (f) City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. (g) The parties hereto understand and agree that City is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently $350,000.00 per person and $990,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. 10. City's Insurance. The parties hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Proper- ty/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Risk Management Department and are available to Professional for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide Professional reasonable notice of any changes in its membership or participation in CIRSA. 11. Completeness of Agreement. It is expressly agreed that this agreement contains the entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or written representations, agreements, warranties or promises pertaining to the project matter thereof not expressly incorporated in this writing. 12. Notice. Any written notices as called for herein may be hand delivered or mailed by certified mail return receipt requested to the respective persons and/or addresses listed above. 13. Non-Discrimination. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform services under this contract. Professional agrees to meet all of the requirements of City's municipal code, Section 13-98, pertaining to non-discrimination in employment. P94 VI.b Agreement Professional Services Page 5 14. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition of this Agreement can be waived except by the written consent of the City, and forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant, or condition to be performed by Professional to which the same may apply and, until complete performance by Professional of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. 15. Execution of Agreement by City. This Agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding anything to the contrary contained herein, this Agreement shall not be binding upon the City unless duly executed by the Mayor of the City of Aspen (or a duly authorized official in his absence) following a Motion or Resolution of the Council of the City of Aspen authorizing the Mayor (or a duly authorized official in his absence) to execute the same. 16. Illegal Aliens – CRS 8-17.5-101 & 24-76.5-101. (a) Purpose. During the 2006 Colorado legislative session, the Legislature passed House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added new statutes relating to the employment of and contracting with illegal aliens. These new laws prohibit all state agencies and political subdivisions, including the City of Aspen, from knowingly hiring an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who knowingly hires with an illegal alien to perform work under the contract. The new laws also require that all contracts for services include certain specific language as set forth in the statutes. The following terms and conditions have been designed to comply with the requirements of this new law. (b) Definitions. The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the City of Aspen. “Basic Pilot Program” means the basic pilot employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. “Public Contract for Services” means this Agreement. “Services” means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. (c) By signing this document, Professional certifies and represents that at this time: (i) Professional shall confirm the employment eligibility of all employees who are newly hired for employment in the United States; and P95 VI.b Agreement Professional Services Page 6 (ii) Professional has participated or attempted to participate in the Basic Pilot Program in order to verify that new employees are not illegal aliens. (d) Professional hereby confirms that: (i) Professional shall not knowingly employ or contract new employees without confirming the employment eligibility of all such employees hired for employment in the United States under the Public Contract for Services. (ii) Professional shall not enter into a contract with a subcontractor that fails to confirm to the Professional that the subcontractor shall not knowingly hire new employees without confirming their employment eligibility for employment in the United States under the Public Contract for Services. (iii) Professional has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Professional does not employ any new employees who are not eligible for employment in the United States; and if Professional has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Professional shall forthwith apply to participate in the Federal Basic Pilot Program and shall in writing verify such application within five (5) days of the date of the Public Contract. Professional shall continue to apply to participate in the Federal Basic Pilot Program and shall in writing verify same every three (3) calendar months thereafter, until Professional is accepted or the public contract for services has been completed, whichever is earlier. The requirements of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. (iv) Professional shall not use the Basic Pilot Program procedures to undertake pre-employment screening of job applicants while the Public Contract for Services is being performed. (v) If Professional obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with a new employee who is an illegal alien, Professional shall: (1) Notify such subcontractor and the City of Aspen within three days that Professional has actual knowledge that the subcontractor has newly employed or contracted with an illegal alien; and (2) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the new employee who is an illegal alien; except that Professional shall not terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. P96 VI.b Agreement Professional Services Page 7 (vi) Professional shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. (vii) If Professional violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of Aspen may terminate the Public Contract for Services. If the Public Contract for Services is so terminated, Contractor shall be liable for actual and consequential damages to the City of Aspen arising out of Professional’s violation of Subsection 8-17.5-102, C.R.S. (ix) If Professional operates as a sole proprietor, Professional hereby swears or affirms under penalty of perjury that the Professional (1) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federal law, (2) shall comply with the provisions of CRS 24-76.5-101 et seq., and (3) shall produce one of the forms of identification required by CRS 24-76.5-103 prior to the effective date of this Agreement. 16. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest. (a) Professional warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Professional for the purpose of securing business. (b) Professional agrees not to give any employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore. (c) Professional represents that no official, officer, employee or representative of the City during the term of this Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of this Agreement. (d) In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to: 1. Cancel this Purchase Agreement without any liability by the City; 2. Debar or suspend the offending parties from being a Professional, contractor or subcontractor under City contracts; P97 VI.b Agreement Professional Services Page 8 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Professional; and 4. Recover such value from the offending parties. 17. Fund Availability. Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If this Agreement contemplates the City utilizing state or federal funds to meet its obligations herein, this Agreement shall be contingent upon the availability of those funds for payment pursuant to the terms of this Agreement. 18. General Terms. (a) It is agreed that neither this Agreement nor any of its terms, provisions, conditions, representations or covenants can be modified, changed, terminated or amended, waived, superseded or extended except by appropriate written instrument fully executed by the parties. (b) If any of the provisions of this Agreement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision. (c) The parties acknowledge and understand that there are no conditions or limitations to this understanding except those as contained herein at the time of the execution hereof and that after execution no alteration, change or modification shall be made except upon a writing signed by the parties. (d) This Agreement shall be governed by the laws of the State of Colorado as from time to time in effect. 19. Electronic Signatures and Electronic Records This Agreement and any amendments hereto may be executed in several counterparts, each of which shall be deemed an original, and all of which together shall constitute one agreement binding on the Parties, notwithstanding the possible event that all Parties may not have signed the same counterpart. Furthermore, each Party consents to the use of electronic signatures by either Party. The Scope of Work, and any other documents requiring a signature hereunder, may be signed electronically in the manner agreed to by the Parties. The Parties agree not to deny the legal effect or enforceability of the Agreement solely because it is in electronic form or because an electronic record was used in its formation. The Parties agree not to object to the admissibility of the Agreement in the form of an electronic record, or a paper copy of an electronic documents, or a paper copy of a document bearing an electronic signature, on the ground that it is an electronic record or electronic signature or that it is not in its original form or is not an original. IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement in three copies each of which shall be deemed an original on the date first written above. P98 VI.b Agreement Professional Services Page 9 CITY OF ASPEN, COLORADO: PROFESSIONAL: ________________________________ ______________________________ [Signature] [Signature] By: _____________________________ By: _____________________________ [Name] [Name] Title: ____________________________ Title: ____________________________ Date: ___________________ Date: ___________________ Approved as to form: _______________________________ City Attorney’s Office P99 VI.b Agreement Professional Services Page 10 EXHIBIT A PROFESSIONAL SERVICES AGREEMENT PVCMI will perform development inspection services on an as-needed basis that includes, but is not limited to: A. Pre-Construction Phase: a. Perform constructability review of project plans and specifications. b. Review existing site conditions. c. Attend pre-construction meetings and present special concerns, if any. d. Review applicable City of Aspen Standards: Engineering Design Standards, Water Distribution Standards, Construction and Excavation Standards for Work in the Public Right-of-Way, Electrical Standards and Specifications for Electrical Installation and Use, and Urban Runoff Management Plan B. Construction Phase: a. Review plans, specifications, testing procedures, and phasing. Become familiar with traffic control plans, construction schedules, construction sequences, and permit requirements from other agencies. b. Photograph project prior, during, and after construction. c. Review any shop drawings and submittals, provide guidance to City if documents do not meet standards, applicable regulations or owner preference(s). d. Interpret plans, specifications and regulations and ensure that contractors are following their contracts. Provide inspections to ensure projects are constructed according to project specifications. e. Notify City of Aspen personnel and construction contractors about non- compliance as soon as it is discovered. f. Maintain daily diaries showing site and weather conditions; traffic control measures taken by contractors; labor, equipment and materials used; quantity of work performed; and major incidents/safety violations. Daily diaries shall be submitted to City upon project completion or upon any request. g. Review construction progress schedules on a regular basis; verify schedules are on track with project milestones; identify deviations; and ensure that corrective actions are taken to bring projects back on schedule. h. Provide accurate measurements of work completed by contractors in accordance with contract documents. i. Coordinate with project design consultant the contractor’s requests for interpretation or clarification of meaning and intent of project plans and specifications. j. Review and evaluate proposed change orders render recommendations to City personnel. k. Review soil compaction and materials testing certifications of compliance. Coordinate with City personnel, contractors, and design professional representative(s) during any noted deficiencies. l. Note where contractors have installed materials without approved material testing certifications. Any failed tests shall be reported to City personnel. m. Report potential conflicts to utilities, and advise them to relocate or remove conflicting utilities and report outcome to City. P100 VI.b Agreement Professional Services Page 11 n. Attend weekly progress meetings to communicate, coordinate and resolve any issues or problems that may arise at the job site. o. Coordinate mitigation of construction impacts with contractor, City and other agencies. p. Provide inspection of street lighting, traffic control, channelization, and all other traffic-related work. q. Provide inspection of public utilities/water construction projects. Inspect workmanship and materials involved in a variety of construction projects, including pipelines, pump stations, wells, and storage reservoirs. Ensure conformance with plans, specifications, and water distribution standards. r. Observe construction safety, public safety and convenience, and report discovered problems to City. s. Monitor compliance with the City’s National Pollutant Discharge Elimination System (NPDES) Permits and Urban Runoff Management Plan. Monitor compliance with all other local, state, and federal laws and regulations. t. Prepare and transmit to contractor correspondence related to construction inspection of projects. All correspondence sent to and received from contractors shall be copied and transmitted to City. C. Project Closeout: a. Evaluate completion of work and recommend to City when work is ready for substantial completion award and inspection. b. Conduct substantial completion inspection/walk through with City staff, maintenance/service personnel and project architect/design consultant. c. Issue preliminary and final punch list, including schedule for punch list completion. Monitor and follow through with contractor until completion of all punch list items. d. Coordinate review and submittal of as-built plans to City upon project completion. e. Deliver project files to City. A project specific work plan will be prepared for each project that PVCMI is contracted for in coordination with the City of Aspen, testing/inspection agencies, Design Team and the Contractor. PVCMI will be represented by Phil Vaughan serving as the Project Manager and staff member assigned to projects. The utilization of sub-consultants for the project will be discussed with, and approved by, City of Aspen staff prior to contracting with any of our sub-consultants. Phil Vaughan will direct and supervise the work of sub-consultants. Quality Control: Phil Vaughan reviews all work product of sub-consultants prior to issuance of documents to the City of Aspen. P101 VI.b Agreement Professional Services Page 12 Budget Control: Phil Vaughan will discuss PVCMI budget numbers and overall project budget numbers with City of Aspen staff prior to start of work and during the course of work. We will ensure that the budget requirements of City of Aspen are met. Schedule Control: Phil Vaughan will discuss the PVCMI project schedule and the overall project schedule with City of Aspen staff prior to start of work and during the course of work. We will ensure that the City of Aspen schedule requirements are met. PVCMI Pre-Construction Phase Services Approach: Phil Vaughan will review the project drawings to determine constructability, identify potential existing site conditions conflicts and confirm compliance with City of Aspen standards. Draft Plan review notes will be prepared and submitted to the City of Aspen for review and comment. After review and comment is received from the City of Aspen, a final plan review document will be issued to the City of Aspen. Any issues identified within this report will be discussed with the Applicant for resolution. All reports will be customized as per the direction of the City of Aspen. PVCMI Estimated review time: 20 hours PVCMI Estimated cost: Review: 20 hours @ $95/hr.= $1,900.00. Preparation, travel and attendance at pre-construction meeting: 5 hours @ $95/hr.= $475.00 Mileage: 154 miles @ $0.65/mile= $100.00 Estimated Total Pre-Construction Phase Services: $2,475.00 PVCMI Construction Phase Services Approach: Phil Vaughan-PVCMI will provide all services as requested above. Phil has extensive experience in each of these services as exhibited by his performance of the Hallam Street and Castle Creek Bridge Improvements project and the Aspen Country Inn project for the City of Aspen, and all other projects that PVCMI has been involved in. The services described above are currently being provided by Phil Vaughan- PVCMI on the Hallam Street and Castle Creek Bridge Improvements project. PVCMI Estimated services: 75 working days = 15 weeks. Four site visits per week x 15 weeks x 6 hours per day= 360 hours. P102 VI.b Agreement Professional Services Page 13 PVCMI Estimated cost: Site visits/inspections/review of documents 360 hours @ $95/hr.= $34,200.00 Mileage: 154 miles per site visit x 60 site visits= 9,240 miles @ $0.65/mile= $6,006.00 Estimated Total Construction Phase Services: $40,206.00 PVCMI Project Closeout Approach: Phil Vaughan-PVCMI will provide all services as requested above. The Project Closeout services described above have been provided by Phil Vaughan-PVCMI on the Aspen Country Inn project, and all other projects that PVCMI has been involved in. PVCMI Estimated review time: 30 hours PVCMI Estimated site visits: 3 x 7 hours= 21 hours PVCMI Estimated cost: Site visits/inspections/review of documents 51 hours @ $95/hr.= $4,845.00 Mileage: 154 miles per site visit x 3 site visits= 462 miles @ $0.65/mile= $300.00 Estimated Total Project Closeout Services: $5,145.00 Total Estimated Costs: Estimated Total Pre-Construction Phase Services: $2,475.00 Estimated Total Construction Phase Services: $40,206.00 Estimated Total Project Closeout Services: $5,145.00 Estimated copies: $1,000.00 P103 VI.b Agreement Professional Services Page 14 EXHIBIT B PROFESSIONAL SERVICES AGREEMENT Fee Schedule PVCMI Construction Services Plan Review $95.00/hour Design and Estimation $95.00/hour Meetings/Discussions $95.00/hour Construction Management/ $95.00/hour Scheduling $95.00/hour Travel $95.00/hour + .65 mile Out-of-pocket expenses Cost of expense plus 15% Miscellaneous Charges Photocopies 8.5x11 $0.30/each Photocopies 8.5x11-color $0.75/each Photocopies 11x17 $0.40/each Color 11x17 $1.25/each Blackline/Blueline Prints $3.00/each 24”x36” Mylar Sepias $24.00/each Presentation Binding Cost of expense plus 15% Color Plots- D size $22.00/each D size scans $2.50/each 8.5x11 scans $0.35/each Flash Drives- 8GB $43.00/each P104 VI.b Agreement Professional Services Page 15 ACM Consulting & Engineering PH: 970-245-7292 P.O. 3211, Grand Jct. CO. 81502 3880 S 8.4 Rd., Glade Park, CO 81523 email: joelmrtinez@gmail.com STANDARD HOURLY RATES (Effective January, 2018) Professional Engineer $110.00/hour Meetings and consultations $110.00/hour Additional Services $110.00/hour Travel time $55.00/hour CONSUMABLES/OTHER Copies – per page $.20/ea (8 ½ x 11) $.30/ea (11 x 17) DVD's CD's $3.50/ea Scanning (Photos or Text) $4.50/ea Bond (24 x 36) $6.50/ea Bond (30 x 42) $9.47/ea Mileage $0.54.5cents /mile Reimbursable expenses: Postage, Long distance Telephone, Out of town living expenses, Commercial carrier, Vehicle and Equipment Rental, and other miscellaneous Expenses. Photographs, reductions, enlargements, and other miscellaneous printing. Payment is Net30 Payment is for services rendered on an as-needed basis. The City does not imply or guarantee a minimum contract value. P105 VI.b Agreement Professional Services Page 0 CITY OF ASPEN STANDARD FORM OF AGREEMENT V 2009 PROFESSIONAL SERVICES City of Aspen Contract No.: 2018-064. AGREEMENT made as of 25th day of June, in the year 2018. BETWEEN the City: Contract Amount: The City of Aspen c/o Water 130 South Galena Street Aspen, Colorado 81611 Phone: (970) 920-5079 And the Professional: Merrick & Company c/o ____________________ 5970 Greenwood Plaza Blvd Greenwood Village, CO 80111 Phone: 303-964-3333 For the Following Project: As-needed Development Inspection Services Exhibits appended and made a part of this Agreement: The City and Professional agree as set forth below. If this Agreement requires the City to pay an amount of money in excess of $25,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. City Council Approval: Date: ___________________________ Resolution No.:___________________ Exhibit A: Scope of Work. Exhibit B: Fee Schedule. Total: $0.00 P106 VI.b Agreement Professional Services Page 1 1. Scope of Work. Professional shall perform in a competent and professional manner the Scope of Work as set forth at Exhibit A attached hereto and by this reference incorporated herein. 2. Completion. Professional shall commence Work immediately upon receipt of a written Notice to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is consistent with professional skill and care and the orderly progress of the Work in a timely manner. The parties anticipate that all Work pursuant to this Agreement shall be completed no later than January 31, 2020. Upon request of the City, Professional shall submit, for the City's approval, a schedule for the performance of Professional's services which shall be adjusted as required as the project proceeds, and which shall include allowances for periods of time required by the City's project engineer for review and approval of submissions and for approvals of authorities having jurisdiction over the project. This schedule, when approved by the City, shall not, except for reasonable cause, be exceeded by the Professional. 3. Payment. In consideration of the work performed, City shall pay Professional on a time and expense basis for all work performed. The hourly rates for work performed by Professional shall not exceed those hourly rates set forth at Exhibit B appended hereto. Except as otherwise mutually agreed to by the parties the payments made to Professional shall not initially exceed the amount set forth above. Professional shall submit, in timely fashion, invoices for work performed. The City shall review such invoices and, if they are considered incorrect or untimely, the City shall review the matter with Professional within ten days from receipt of the Professional's bill. 4. Non-Assignability. Both parties recognize that this Agreement is one for personal services and cannot be transferred, assigned, or sublet by either party without prior written consent of the other. Sub-Contracting, if authorized, shall not relieve the Professional of any of the responsibilities or obligations under this Agreement. Professional shall be and remain solely responsible to the City for the acts, errors, omissions or neglect of any subcontractors’ officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Professional to the extent of the subcontract. The City shall not be obligated to pay or be liable for payment of any sums due which may be due to any sub-contractor. 5. Termination of Procurement. The sale contemplated by this Agreement may be canceled by the City prior to acceptance by the City whenever for any reason and in its sole discretion the City shall determine that such cancellation is in its best interests and convenience. 6. Termination of Professional Services. The Professional or the City may terminate the Professional Services component of this Agreement, without specifying the reason therefor, by giving notice, in writing, addressed to the other party, specifying the effective date of the termination. No fees shall be earned after the effective date of the termination. Upon any termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or other material prepared by the Professional pursuant to this Agreement shall become the property of the City. Notwithstanding the above, Professional shall not be relieved of any liability to the City for damages sustained by the City by virtue of any breach of this Agreement by the Professional, and the City may withhold any payments to the Professional for the purposes of set-off until such time as the exact amount of damages due the City from the Professional may be determined. P107 VI.b Agreement Professional Services Page 2 7. Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this agreement shall result in, or be construed as establishing an employment relationship. Professional shall be, and shall perform as, an independent Contractor who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or servant of Professional shall be, or shall be deemed to be, the employee, agent or servant of the City. City is interested only in the results obtained under this contract. The manner and means of conducting the work are under the sole control of Professional. None of the benefits provided by City to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, are available from City to the employees, agents or servants of Professional. Professional shall be solely and entirely responsible for its acts and for the acts of Professional's agents, employees, servants and subcontractors during the performance of this contract. Professional shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with respect to Professional and/or Professional's employees engaged in the performance of the services agreed to herein. 8. Indemnification. Professional agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this contract, to the extent and for an amount represented by the degree or percentage such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the wrongful act, omission, error, professional error, mistake, negligence, or other fault of the Professional, any subcontractor of the Professional, or any officer, employee, representative, or agent of the Professional or of any subcontractor of the Professional, or which arises out of any workmen's compensation claim of any employee of the Professional or of any employee of any subcontractor of the Professional. The Professional agrees to investigate, handle, respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of the Professional, or at the option of the City, agrees to pay the City or reimburse the City for the defense costs incurred by the City in connection with, any such liability, claims, or demands. If it is determined by the final judgment of a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse the Professional for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 9. Professional's Insurance. (a) Professional agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 8 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Professional shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 8 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. P108 VI.b Agreement Professional Services Page 3 (b) Professional shall procure and maintain, and shall cause any subcontractor of the Professional to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance acceptable to the City. All coverages shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 8 above. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. (i) Workers’ Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers' Liability insurance with minimum limits of ONE MILLION DOLLARS ($1,000,000.00) for each accident, ONE MILLION DOLLARS ($1,000,000.00) disease - policy limit, and ONE MILLION DOLLARS ($1,000,000.00) disease - each employee. Evidence of qualified self-insured status may be substituted for the Workers' Compensation requirements of this paragraph. (ii) Commercial General Liability insurance with minimum combined single limits of TWO MILLION DOLLARS ($2,000,000.00) each occurrence and TWO MILLION DOLLARS ($2,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall contain a severability of interests provision. (iii) Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate with respect to each Professional's owned, hired and non- owned vehicles assigned to or used in performance of the Scope of Work. The policy shall contain a severability of interests provision. If the Professional has no owned automobiles, the requirements of this Section shall be met by each employee of the Professional providing services to the City under this contract. (iv) Professional Liability insurance with the minimum limits of ONE MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000) aggregate. (c) The policy or policies required above shall be endorsed to include the City and the City's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the City, its officers or employees, or carried by or provided through any insurance pool of the City, shall be excess and not contributory insurance to that provided by Professional. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Professional shall be solely responsible for any deductible losses under any policy required above. P109 VI.b Agreement Professional Services Page 4 (d) The certificate of insurance provided to the City shall be completed by the Professional's insurance agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identify this contract and shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City. (e) Failure on the part of the Professional to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of contract upon which City may immediately terminate this contract, or at its discretion City may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by City shall be repaid by Professional to City upon demand, or City may offset the cost of the premiums against monies due to Professional from City. (f) City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. (g) The parties hereto understand and agree that City is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently $350,000.00 per person and $990,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. 10. City's Insurance. The parties hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Proper- ty/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Risk Management Department and are available to Professional for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide Professional reasonable notice of any changes in its membership or participation in CIRSA. 11. Completeness of Agreement. It is expressly agreed that this agreement contains the entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or written representations, agreements, warranties or promises pertaining to the project matter thereof not expressly incorporated in this writing. 12. Notice. Any written notices as called for herein may be hand delivered or mailed by certified mail return receipt requested to the respective persons and/or addresses listed above. 13. Non-Discrimination. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform services under this contract. Professional agrees to meet all of the requirements of City's municipal code, Section 13-98, pertaining to non-discrimination in employment. P110 VI.b Agreement Professional Services Page 5 14. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition of this Agreement can be waived except by the written consent of the City, and forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant, or condition to be performed by Professional to which the same may apply and, until complete performance by Professional of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. 15. Execution of Agreement by City. This Agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding anything to the contrary contained herein, this Agreement shall not be binding upon the City unless duly executed by the Mayor of the City of Aspen (or a duly authorized official in his absence) following a Motion or Resolution of the Council of the City of Aspen authorizing the Mayor (or a duly authorized official in his absence) to execute the same. 16. Illegal Aliens – CRS 8-17.5-101 & 24-76.5-101. (a) Purpose. During the 2006 Colorado legislative session, the Legislature passed House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added new statutes relating to the employment of and contracting with illegal aliens. These new laws prohibit all state agencies and political subdivisions, including the City of Aspen, from knowingly hiring an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who knowingly hires with an illegal alien to perform work under the contract. The new laws also require that all contracts for services include certain specific language as set forth in the statutes. The following terms and conditions have been designed to comply with the requirements of this new law. (b) Definitions. The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the City of Aspen. “Basic Pilot Program” means the basic pilot employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. “Public Contract for Services” means this Agreement. “Services” means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. (c) By signing this document, Professional certifies and represents that at this time: (i) Professional shall confirm the employment eligibility of all employees who are newly hired for employment in the United States; and P111 VI.b Agreement Professional Services Page 6 (ii) Professional has participated or attempted to participate in the Basic Pilot Program in order to verify that new employees are not illegal aliens. (d) Professional hereby confirms that: (i) Professional shall not knowingly employ or contract new employees without confirming the employment eligibility of all such employees hired for employment in the United States under the Public Contract for Services. (ii) Professional shall not enter into a contract with a subcontractor that fails to confirm to the Professional that the subcontractor shall not knowingly hire new employees without confirming their employment eligibility for employment in the United States under the Public Contract for Services. (iii) Professional has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Professional does not employ any new employees who are not eligible for employment in the United States; and if Professional has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Professional shall forthwith apply to participate in the Federal Basic Pilot Program and shall in writing verify such application within five (5) days of the date of the Public Contract. Professional shall continue to apply to participate in the Federal Basic Pilot Program and shall in writing verify same every three (3) calendar months thereafter, until Professional is accepted or the public contract for services has been completed, whichever is earlier. The requirements of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. (iv) Professional shall not use the Basic Pilot Program procedures to undertake pre-employment screening of job applicants while the Public Contract for Services is being performed. (v) If Professional obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with a new employee who is an illegal alien, Professional shall: (1) Notify such subcontractor and the City of Aspen within three days that Professional has actual knowledge that the subcontractor has newly employed or contracted with an illegal alien; and (2) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the new employee who is an illegal alien; except that Professional shall not terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. P112 VI.b Agreement Professional Services Page 7 (vi) Professional shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. (vii) If Professional violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of Aspen may terminate the Public Contract for Services. If the Public Contract for Services is so terminated, Contractor shall be liable for actual and consequential damages to the City of Aspen arising out of Professional’s violation of Subsection 8-17.5-102, C.R.S. (ix) If Professional operates as a sole proprietor, Professional hereby swears or affirms under penalty of perjury that the Professional (1) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federal law, (2) shall comply with the provisions of CRS 24-76.5-101 et seq., and (3) shall produce one of the forms of identification required by CRS 24-76.5-103 prior to the effective date of this Agreement. 16. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest. (a) Professional warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Professional for the purpose of securing business. (b) Professional agrees not to give any employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore. (c) Professional represents that no official, officer, employee or representative of the City during the term of this Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of this Agreement. (d) In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to: 1. Cancel this Purchase Agreement without any liability by the City; 2. Debar or suspend the offending parties from being a Professional, contractor or subcontractor under City contracts; P113 VI.b Agreement Professional Services Page 8 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Professional; and 4. Recover such value from the offending parties. 17. Fund Availability. Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If this Agreement contemplates the City utilizing state or federal funds to meet its obligations herein, this Agreement shall be contingent upon the availability of those funds for payment pursuant to the terms of this Agreement. 18. General Terms. (a) It is agreed that neither this Agreement nor any of its terms, provisions, conditions, representations or covenants can be modified, changed, terminated or amended, waived, superseded or extended except by appropriate written instrument fully executed by the parties. (b) If any of the provisions of this Agreement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision. (c) The parties acknowledge and understand that there are no conditions or limitations to this understanding except those as contained herein at the time of the execution hereof and that after execution no alteration, change or modification shall be made except upon a writing signed by the parties. (d) This Agreement shall be governed by the laws of the State of Colorado as from time to time in effect. 19. Electronic Signatures and Electronic Records This Agreement and any amendments hereto may be executed in several counterparts, each of which shall be deemed an original, and all of which together shall constitute one agreement binding on the Parties, notwithstanding the possible event that all Parties may not have signed the same counterpart. Furthermore, each Party consents to the use of electronic signatures by either Party. The Scope of Work, and any other documents requiring a signature hereunder, may be signed electronically in the manner agreed to by the Parties. The Parties agree not to deny the legal effect or enforceability of the Agreement solely because it is in electronic form or because an electronic record was used in its formation. The Parties agree not to object to the admissibility of the Agreement in the form of an electronic record, or a paper copy of an electronic documents, or a paper copy of a document bearing an electronic signature, on the ground that it is an electronic record or electronic signature or that it is not in its original form or is not an original. IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement in three copies each of which shall be deemed an original on the date first written above. P114 VI.b Agreement Professional Services Page 9 CITY OF ASPEN, COLORADO: PROFESSIONAL: ________________________________ ______________________________ [Signature] [Signature] By: _____________________________ By: _____________________________ [Name] [Name] Title: ____________________________ Title: ____________________________ Date: ___________________ Date: ___________________ Approved as to form: _______________________________ City Attorney’s Office P115 VI.b Agreement Professional Services Page 10 EXHIBIT A PROFESSIONAL SERVICES AGREEMENT PVCMI will perform development inspection services on an as-needed basis that includes, but is not limited to: A. Pre-Construction Phase: a. Perform constructability review of project plans and specifications. b. Review existing site conditions. c. Attend pre-construction meetings and present special concerns, if any. d. Review applicable City of Aspen Standards: Engineering Design Standards, Water Distribution Standards, Construction and Excavation Standards for Work in the Public Right-of-Way, Electrical Standards and Specifications for Electrical Installation and Use, and Urban Runoff Management Plan B. Construction Phase: a. Review plans, specifications, testing procedures, and phasing. Become familiar with traffic control plans, construction schedules, construction sequences, and permit requirements from other agencies. b. Photograph project prior, during, and after construction. c. Review any shop drawings and submittals, provide guidance to City if documents do not meet standards, applicable regulations or owner preference(s). d. Interpret plans, specifications and regulations and ensure that contractors are following their contracts. Provide inspections to ensure projects are constructed according to project specifications. e. Notify City of Aspen personnel and construction contractors about non- compliance as soon as it is discovered. f. Maintain daily diaries showing site and weather conditions; traffic control measures taken by contractors; labor, equipment and materials used; quantity of work performed; and major incidents/safety violations. Daily diaries shall be submitted to City upon project completion or upon any request. g. Review construction progress schedules on a regular basis; verify schedules are on track with project milestones; identify deviations; and ensure that corrective actions are taken to bring projects back on schedule. h. Provide accurate measurements of work completed by contractors in accordance with contract documents. i. Coordinate with project design consultant the contractor’s requests for interpretation or clarification of meaning and intent of project plans and specifications. j. Review and evaluate proposed change orders render recommendations to City personnel. k. Review soil compaction and materials testing certifications of compliance. Coordinate with City personnel, contractors, and design professional representative(s) during any noted deficiencies. l. Note where contractors have installed materials without approved material testing certifications. Any failed tests shall be reported to City personnel. m. Report potential conflicts to utilities, and advise them to relocate or remove conflicting utilities and report outcome to City. P116 VI.b Agreement Professional Services Page 11 n. Attend weekly progress meetings to communicate, coordinate and resolve any issues or problems that may arise at the job site. o. Coordinate mitigation of construction impacts with contractor, City and other agencies. p. Provide inspection of street lighting, traffic control, channelization, and all other traffic-related work. q. Provide inspection of public utilities/water construction projects. Inspect workmanship and materials involved in a variety of construction projects, including pipelines, pump stations, wells, and storage reservoirs. Ensure conformance with plans, specifications, and water distribution standards. r. Observe construction safety, public safety and convenience, and report discovered problems to City. s. Monitor compliance with the City’s National Pollutant Discharge Elimination System (NPDES) Permits and Urban Runoff Management Plan. Monitor compliance with all other local, state, and federal laws and regulations. t. Prepare and transmit to contractor correspondence related to construction inspection of projects. All correspondence sent to and received from contractors shall be copied and transmitted to City. C. Project Closeout: a. Evaluate completion of work and recommend to City when work is ready for substantial completion award and inspection. b. Conduct substantial completion inspection/walk through with City staff, maintenance/service personnel and project architect/design consultant. c. Issue preliminary and final punch list, including schedule for punch list completion. Monitor and follow through with contractor until completion of all punch list items. d. Coordinate review and submittal of as-built plans to City upon project completion. e. Deliver project files to City. P117 VI.b Agreement Professional Services Page 12 EXHIBIT B PROFESSIONAL SERVICES AGREEMENT Fee Schedule · Generally (with some exception), there is no charge for travel time or for over 8 hours in one day. · Mileage is charged to/from our Aspen office (or other job site). Rarely is the distance over five miles. · No charge is made for question answers (usually by telephone) requiring less than approximately 10 minutes. · The hourly rate used reflects the type of work. For example, if Jim or Dean are assigned as the full-time inspector on a project, he would be billed at the Resident Engineer rate. P118 VI.b Agreement Professional Services Page 13 · When personnel from our other offices are needed because of the Aspen office overload, billings will assume expenses as from the Aspen office. · If a time effort is thought to be inefficient or misdirected during the design phase, the ineffective time is not billed. · Subconsultants, if needed, as well as expenses, are billed at actual costs plus 5% to cover our expenses. Payment is Net30. Payment is for services rendered on an as-needed basis. The City does not imply or guarantee a minimum dollar contract amount. P119 VI.b MEMORANDUM TO: Mayor and City Council FROM : April Long, P.E., Clean River Program Manager THRU: Trish Aragon, P.E., City Engineer Scott Miller, Capital Asset Director DATE OF MEMO: June 18, 2018 MEETING DATE: June 25, 2018 RE: Resolution #98, Series of 2018 - Garmisch Street Stormwater Master Plan, Professional Services Contract Approval for Wright Water Engineers, Inc. SUMMARY: Staff recommends that Council approves the contract for Wright Water Engineers, Inc. (WWE) in the amount of $92,069.00 for professional services for a Stormwater Master Plan of the Garmisch Street corridor. BACKGROUND: Currently the City has a Surface Drainage Master Plan (Plan) for the entire Aspen Mountain Drainage Basin and an update to this Plan (City of Aspen Detention Analysis, 2014), which includes the Garmisch Street corridor. This Plan was completed in November of 2001 by WRC Engineering, Inc. and updated in September of 2014 by Wright Water Engineers, Inc. The Detention Analysis estimates the amount of surface runoff expected and the direction this runoff will flow, and determines present and future stormwater system capacity problem areas. The City of Aspen has committed to provide a level of service that conveys the entire 10-year (minor) storm event within the stormwater system and the 100-year (major) event within the street infrastructure. The Detention Analysis showed that the Garmisch Street system has capacity for the 10-year event, but overtops the systems to a depth of 12 inches in the 100-year event. Additionally, there are several sections within this stormwater system where larger pipes are discharging into smaller pipes, creating significant areas for concern. The purpose of this Project will be to develop a Stormwater Master Plan and conceptual level design for the Garmisch Street Corridor. The consultant will inventory the existing stormwater conveyance system, evaluate the capacity of the existing infrastructure, evaluate improvement alternatives to reduce the flood risk in the adjacent neighborhoods, and prepare a comprehensive plan for improving stormwater management, including both quantity and quality perspectives. Ultimately, existing and future problem areas will be identified and prioritized and recommended design concepts will be presented. City Staff have prioritized the replacement of the downstream-most pipe that runs along the Mail Trail and this portion of the project will need to be expedited for an August installation. There is approximately $160,000 remaining in Aspen Mountain Drainage Basin Improvements line item that was approved by Council in 2013 and has been carried forward for this project. P120 VI.c DISCUSSION: Proposals were received from four consultants listed below: JR Engineering Kimley-Horn RESPEC Wright Water Engineers, Inc. A team of two employees from the engineering department performed independent reviews of the proposals. Consultant fees were scored as 10% of the overall score. Proposals were evaluated based on project team experience, project understanding and approach. More specifically, criteria carrying the most weight included: § Comprehension of services requested § Team’s qualification, experience and expertise in stormwater master planning § Project approach and proposed scope § Previously similar projects The consultant team receiving the highest scores and the review committee’s selection is the Wright Water Engineers, Inc (WWE) team including Stan Clausen and Associates as a sub-consultant. This team was selected based on its expertise in the subject matter, understanding of the project and of Aspen’s desired approach, and the quality and detail of their proposal. The WWE team members have worked in the development of stormwater master plans across the nation and within Colorado. Of significant importance, the WWE team demonstrated a more comprehensive and detailed understanding of the services Aspen is seeking in this project and delivered a comprehensive and well-defined project approach. FINANCIAL IMPLICATIONS: Staff intends to use stormwater funds dedicated and approved for this Project by City Council in 2013. Funding Budgeted Aspen Mountain Drainage Basin Improvements (Acct# 160.328.81200.50129.) $160,000.00 Contract Amount Garmisch Street Stormwater Master Plan - $ 92,069.00 Remainder $ 67,931.00 RECOMMENDATION: Staff recommends that Council approves the contract for WWE as discussed above. CITY MANAGER COMMENTS: Attachment A: Resolution No. XXX of 2018 Attachment B: Agreement for Professional Services (between the City of Aspen and WWE) P121 VI.c RESOLUTION # 98 (Series of 2018) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND WRIGHT WATER ENGINEERS, INC., SETTING FORTH THE TERMS AND CONDITIONS REGARDING THE GARMISCH STREET STORMWATER MASTER PLAN AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT WHEREAS, there has been submitted to the City Council a contract between the City of Aspen, Colorado, and Wright Water Engineers, Inc., a copy of which contract is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves that contract between the City of Aspen, Colorado, and Wright Water Engineers, Inc. regarding the Garmisch Street Stormwater Master Plan, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 25th day of June 2018. Steven Skadron, Mayor I, Linda Manning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held June 25, 2018. Linda Manning, City Clerk P122 VI.c P123 VI.c P124 VI.c P125 VI.c P126 VI.c P127 VI.c P128 VI.c P129 VI.c P130 VI.c P131 VI.c P132 VI.c P133 VI.c P134 VI.c P135 VI.c P136 VI.c P137 VI.c P138 VI.c P139 VI.c P140 VI.c P141 VI.c P142 VI.c P143 VI.c Page 1 of 2 MEMORANDUM TO: Mayor and City Council FROM: Ashley Perl, Climate Action Manager THROUGH: Barry Crook, Assistant City Manager DATE OF MEMO: June 18, 2018 MEETING DATE: June 25, 2018 RE: Resolution #96, Series of 2018 - Contract Extension for Project Management for Shift REQUEST OF COUNCIL: Staff requests that City Council approve Resolution #096 and the contract extension with Next Chapters, LLC to provide continued project management and assistance to support Shift, the Aspen Mobility Lab. PREVIOUS COUNCIL ACTION: City Council approved staff time and budget for Phase 1 of the Aspen Mobility Lab at a work session on June 26, 2017, and approved additional budget authority as part of the Supplemental Budget Ordinance (#29, Series 2017). City Council approved a contract with Next Chapters, LLC on August 14, 2017 for $30,625 for Project Management of the Aspen Mobility Lab (Resolution #108, 2017). City Council then approved subsequent contract extensions, as budget allowed and the work dictated. City Council approved project budget for 2018 at a work session on May 7, 2018 and in the Supplemental Budget Ordinance (#07, Series 2018). BACKGROUND: In 2017, as part of City Council’s annual goal setting retreat, Mayor Skadron introduced the idea that the City of Aspen should conduct a large-scale, bold experiment that would increase mobility options while decreasing the reliance on the personal automobile in the Aspen community. City of Aspen staff and a team of expert consultants created a project plan and scope that was presented to City Council at the end of 2017 that delivered a comprehensive plan for the Lab that includes transportation options that are competitive with the ease and speed of personal vehicles to all members of the Aspen community, revolutionizing the way people move within the boundary of the Intercept Lot to east of Aspen. The Lab, now referred to as Shift, will be a community-wide initiative to increase the number and availability of convenient mobility options to increase the environmental sustainability, safety and quality of life in the upper Roaring Fork Valley without a focus on adding lanes or parking spaces. P144 VI.d Page 2 of 2 DISCUSSION: Staff will present a complete project plan to City Council in the fall. In the meantime, staff is focused on securing partnerships with mobility and technology providers and sharing the draft plan with the community to see if the current design is attractive for community members. Shift is a complex project that requires a wide-range of expertise and a large team of dedicated staff. Next Chapters, LLC has been an instrumental supporter of the project from the beginning. Candice Olson has contributed expertise in fundraising, technology, and marketing. This contract extension allows Candice Olson to continue working on the project and assisting City of Aspen staff in finalizing the project design. FINANCIAL/BUDGET IMPACTS: City Council has approved $429,500 for use in planning Shift in 2018. The contract extension for an additional $77,400 is within this budgeted amount. ENVIRONMENTAL IMPACTS: Shift positively impacts numerous measures from City Council’s Sustainability Dashboard including: Air Quality (PM levels, ozone levels); Greenhouse Gas Emissions; Castle Creek Bridge Counts; Acres of Trails; Mass Transit Use; and Walkability and Bike-ability Rating. RECOMMENDED ACTION: City Council approve the contract extension and resolution #096. ALTERNATIVES: City Council could elect to retain the status quo and not conduct Shift. City Council could direct staff to limit work to within the tasks that staff can accomplish and forgo the tasks that require project management assistance. ATTACHMENTS: Attachment A: Resolution #096 Attachment B: Contract Extension Attachment C: Scope of Work P145 VI.d RESOLUTION #096 (Series of 2018) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO AND NEXT CHAPTERS LLC, SETTING FORTH THE TERMS AND CONDITIONS OF THE ASPEN MOBILITY LAB PROJECT ASSISTANT. WHEREAS, the City of Aspen is committed to maintaining a high quality of life for residents and providing a superior visitor experience, and WHEREAS, quality of life and experience is greatly influenced by the way community members and visitors move into, out of, and around Aspen, and WHEREAS, Aspen’s current mobility options are not competitive with the personal automobile, which encourages the use of single-occupancy vehicles, and WHEREAS, single occupancy vehicles lead to traffic, air quality and safety concerns, and an overall reduced experience, and WHEREAS, the City of Aspen aims to experiment with new mobility services with the hope that new mobility options can compete with the personal automobile and provide better options for community members to move, and WHEREAS, the City of Aspen supports residents and visitors in choosing low carbon transportation options, and WHEREAS the City of Aspen seeks to test new modes of transportation during a lab in the summer of 2019, and WHEREAS project management expertise and additional assistance is needed to plan Shift, the Aspen Mobility Lab, and support City of Aspen staff in making the project a success, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen hereby approves the Contract between the City of Aspen, Colorado and Next Chapters, LLC that sets forth the terms and conditions of the project assistance for the Aspen Mobility Lab, a copy P146 VI.d of which is incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said Contract on behalf of the City of Aspen. Dated: June 25, 2018 ______________________________ Steven Skadron, Mayor I, Linda Manning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held June 25, 2018. ______________________________ Linda Manning, City Clerk P147 VI.d Amendment to the Professional Services Agreement between the City of Aspen and Next Chapters, LLC originally approved by City Council on August 14, 2017 by Resolution #108, Series 2017, amending the original contract with an additional statement of work and the compensation associated with the additional work through Resolution #096, Series 2018. Statement of Work – Continued assistance for Shift, the Aspen Mobility Lab. Includes: - Attending and organizing meetings of working groups and partners - Coordinating and implementing an outreach strategy - Developing an incentive program - Pursuing the creation of an app - Other project management duties as assigned Compensation – $77,400 No more than an average of 18 hours per week at $125/hour CITY OF ASPEN, COLORADO: Next Chapters, LLC: ________________________________ _________________________________ [Signature] [Signature] By: _____________________________ By: _____________________________ [Name] [Name] Title: ____________________________ Title: ____________________________ Date: ___________________ Date: ___________________ City Council Approval: Date: June 25, 2018 Resolution No: 096, Series 2018 P148 VI.d 1 SHIFT PROJECT PLANNING MAY-DECEMBER, 2018 Submitted by Candice Olson 1022 East Hyman, Aspen, Colorado, 81611 candicecarpenterolson@gmail.com June 14, 2018 Under the Direction of Ashley Perl and Barry Crook City of Aspen Introduction Candice Olson served as the Project Manager for the Aspen Mobility Lab, reporting to Ashley Perl, Project Director for the Lab, since August, 2017. In that time, Phase 1a and 1b of the project were successfully completed, including research, design of Lab components, infrastructure and downtown design, branding, budgeting, and an RFP process for mobility providers. In Phase 2, from February-April, 2018, the 2019 Lab objectives were refined, focusing on three significant problem areas and programs to test solutions; the cost of the lab was significantly reduced and refined; comprehensive data and incentive strategies were developed; and a reduced 2018 Planning Budget was created for Council approval. Phase 3 began with Council approval of the 2018 Planning Budget and covers completion of all aspects of the planning and budgeting to support city budget planning in September, Council approval of Shift in October and kick-off city planning meetings with vendors in October or November. In Phase 3, Candice will step down from an overall project management role to lead focused components of the project: 1. Create a comprehensive task plan and timeline for 2018 planning, with team consensus around each assignment. As part of this responsibility, Candice will continue to lead a bi-weekly Working Group (below) meeting, reviewing agendas when possible with Barry Crook prior to the meetings. Candice will not be responsible for team members meeting the agreed schedule or the deliverables, as the team reports to Barry Crook, but will ensure that delays are highlighted to the team and to Barry, and adjustments made as needed. Candice will meet with team member individually as needed for this purpose. To support this process, Barry will communicate to Candice any relevant changes in his direction and any new data that come out of his weekly one-on-ones with his team. Data-Karen Harrington Mobility Providers-Lynn Rumbaugh and Ashley Perl Transportation-John Krueger Parking and Downtown Businesses-Mitch Osur Engineering-Trish Aragon Project Director- Ashley Perl Barry Crook attends the regular working group meetings as the overall city lead. Parks and Rec has several key planning tasks, and should probably add a representative. P149 VI.d 2 2. Lead the research, identification and integration process for a comprehensive incentive app and strategy to test in 2018 and re-contract for 2019. Lead the incentive strategy, working closely with Mitch Osur, who will lead the sign-up of local providers. Candice will lead the relationship with SkiCo senior executives and 2-3 other potential lead incentive partners, such as Gorsuch and Performance Ski, for planning aspirational incentives. This assignment draws on Candice's extensive experience (15 years) in the successful introduction of consumer-facing technology. 3. Create a comprehensive marketing and promotion strategy and team for 2019 Shift, tightly integrated with the incentive plan and overall outreach goals, beginning with interviews of recommended talent and culminating in a late summer RFP (August). Select (with two city representatives on the selection team) and contract the winning team in fall in 2018. Work with this team to refine refine the plan in late November and December, working closely with Miles as the incentive provider and Kissane Viola as the brand and design lead. This assignment draws on Candice's extensive (23 years) experience in strategic marketing, branding, promotion, and outreach in both the public and non-profit arenas. 4. Co-lead the 2018 summer outreach plan with Ashley Perl, managing the project during her summer leave, assuming half-time support of a logistical assistant from Ashley's office as a committed resource during the leave period, and that the project direction is not altered during her leave. 5. Manage the overall relationship with CityFi, with Gabe Klein as their project lead. This includes engaging CityFi, defining their scope, defining their city counterparts in vendor outreach (Ashley and Lynn), sponsorship efforts (Ashley and Laura), messaging (Mayor Skadron) and overall planning (Candice). Based on these teams, Ashley will set up and communicate all recurring meetings (other than Candice's weekly one-on-one) with CityFi as of June 10. 6. Create a written one-page update on the Shift planning progress, bi-weekly or monthly, as progress warrants. The current scope removes Candice from overall responsibility as Shift Project Manager but focuses and increases lead responsibility in the specific areas noted above, based on significant professional experience in these areas that is additive to current city expertise. Additional Advisory Roles and Meetings: 1. Candice will play an advisory role in keeping Shift within the current $2.3mm total budget for 2019, reviewing budget choices with Barry and Ashley monthly for this purpose. 2. Weekly update with Ashley Perl. This meeting will be set up by Ashley as a recurring meeting on Wednesday or Thursday. If cancelled, it will be rescheduled at a different time the same week. 3. Weekly updates with Ashley Perl and Barry Crook. This meeting will be set up by Ashley as a recurring meeting on Wednesday or Thursday. 4. Steering Committee, scheduled by Ashley as needed. Support from the city: 1. Printer and printing authorization 2. 2 hours a week of admin support for printing and scheduling on the city's calendar software. 3. Increased admin support during Ashley's leave in July-August P150 VI.d 3 4. In support of the timeline and budgeting process, Barry will communicate to Candice any relevant changes in his direction that comes out of his weekly one-on-ones with his team and will share relevant budget information from the team on a timely basis. 5. Timely sharing of all Council presentation, RFPs, contracts and budget and costing materials related to Shift 6. Opportunities for direct 360 feedback to ensure the efficient progress of the project. 7. These changes in Shift roles will be shared with the Working Group and Steering Committee to ensure smooth communication. Candice Olson Candice has extensive experience and proven success in branding, public outreach, consumer facing technology introduction, strategic marketing, and launch planning. Many of her start-ups have involved collaboration between private, non-profit and public partners and satisfying diverse constituencies. Candice is the recipient of an Emmy (media production) and the Matrix Award in Media (marketing), and spent two decades leading branding and building new businesses at American Express, Time Warner, ivillage and Fullbridge. She has 30 years of experience leading complex and innovative new ventures, including a women’s internet network serving 30mm women a month, a 24/7 broadcast network within Comcast that was built in 12 months, a global business education company that brought 20,000 young Saudi women into the workforce through a contract with the Ministry of Education, and a highly regarded network of charter schools that now serves 1,000 students across 6 distinct Brooklyn neighborhoods. Candice began her career at Colorado Outward Bound, working with youth at risk and has been coming to Aspen for 45 years. In 2016, she became a permanent resident. She is an investor in a local business started by her 24-year old daughter (Aspen High School, class of 2011) and Local Coffee House, which also serves as a free location for political and non-profits groups to hold conversations and programs. Candice has an MBA from Harvard, a degree in Human Biology from Stanford in science-driven public policy, and advanced degrees in education and theology from Columbia. (Hourly rate $125) Budget Cost Item Cost Per Month Notes May-December Total Cost, May-December $9,675 $77,400 Assumes an average of 18 hours per week P151 VI.d 1 MEMORANDUM TO: Mayor and City Council FROM: Aaron Reed, CPESC, Stormwater Inspector THRU: Tricia Aragon, PE, City Engineer April Long, PE, Stormwater Manager DATE OF MEMO: June 18nd, 2018 MEETING DATE: June 25th, 2018 RE: Resolution #58, Series of 2018 - Stormwater Mainline Cleaning Services REQUEST OF COUNCIL: Staff recommends Council approve the contract with Redi Services to provide stormwater infrastructure cleaning services. PREVIOUS COUNCIL ACTION: In October 2014 Redi Services was the sole bidder for cleaning services and was awarded a contract not to exceed $75,000 for cleaning and videoing of stormwater pipes. In November 2016 Council approved the purchase of a stormwater and underground infrastructure inspection camera for $91,000 that allows the City to perform the video portion of services in house. BACKGROUND: The City’s stormwater system carries pollutants which can drop out into pipes and inlets causing clogging, blockages, and potential damage to the system. For the system to function properly to reduce flooding and convey stormwater to regional treatment areas, the system must be inspected and cleaned periodically. Additionally, a significant portion of the City’s system is comprised of corrugated metal pipe (CMP) that is beyond its life span and deteriorated to the point that replacement is necessary. In 2018, Council requested that an inventory of that system be completed before the 2019 budget cycle in order to prepare a replacement schedule for the 2019 budget. DISCUSSION: The goals for this contract are: · To remove any pollutants and debris that have accumulated in pipe to prepare pipe for proper conveyance and video inspection. Following this cleaning, City staff will: · Use recently purchased video equipment to inspect the condition of underground stormwater conveyance systems. More specifically, identify and determine the extent of failing portions of Corrugated Metal Pipe. · Provide a prioritization matrix from which the City can determine which portions of the system needs to be repaired or replaced. P152 VI.e 2 After a number of unsuccessful attempts to find a reliable contractor to perform these services in the past, staff recommends a sole-sourced contract with Redi Services. Staff has contracted with Redi Services before and found them to be a responsive vendor that is willing to provide the appropriate equipment that will effectively and efficiently perform the desired cleaning. FINANCIAL/BUDGET IMPACTS: $80,000 was allocated in the Stormwater Fund’s 2018 Operating Budget for this project. ENVIRONMENTAL IMPACTS: Cleaning the stormwater pipe system will eliminate areas of accumulated sediment that can pollute the Roaring Fork River and cause blockages that result in flooding of the neighboring areas. Identification of failing pipe sections can potentially ensure that stormwater and raw water sources are not being lost to the surrounding soil system which ultimately can reduce the quantity of water in the Roaring Fork River. Lastly, knowing areas that are in need of repair may reduce the overall impact during repairs and could reduce the consumption of conveyance materials, backfill, subgrade material, and paving elements such as concrete or asphalt. RECOMMENDED ACTION: Approve the Cleaning Services contract with Redi Services, LLC. The valuation of this contract is not to exceed $75,000. PROPOSED MOTION: “I move to approve Resolution #058 Series of 2018(Exhibit A).” CITY MANAGER COMMENTS: ATTACHMENTS: A – Resolution 58-series of 2018 B – Graphics of areas to be cleaned by Redi Services and inspected by the City Engineering Dept. P153 VI.e RESOLUTION #58 (Series of 2018) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND REDI SERVICES, LLC AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a contract for, between the City of Aspen and Redi Services, LLC, a true and accurate copy of which is attached hereto as Exhibit “A”; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Contract for Cleaning Services, Not to Exceed $75,000.00 between the City of Aspen and Redi Services a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 25th day of June 2018. Steven Skadron, Mayor I, Linda Manning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held, June 25, 2018. Linda Manning, City Clerk P154 VI.e P155 VI.e P156 VI.e P157 VI.e P158 VI.e P159 VI.e P160 VI.e P161 VI.e P162 VI.e P163 VI.e P164 VI.e P165 VI.e Regular Meeting Aspen City Council June 11, 2018 1 CITIZEN COMMENTS ............................................................................................................................... 2 CITY COUNCIL COMMENTS ................................................................................................................... 2 CITY MANAGER REPORTS ..................................................................................................................... 2 CONSENT CALENDAR ............................................................................................................................. 3 Resolution #87, Series of 2018 – Elevator Master Service Agreement ................................................ 3 Resolution #90, Series of 2018 – Skybeam Ranch conservation Easement ......................................... 3 Resolution #91, Series of 2018 – Vernea Mallory Trail Easement ....................................................... 3 Resolution #79, Series of 2018 – Battery Electric Bus Program-Letter of Financial Commitment ..... 3 Resolution #92, Series of 2018 – On-Call Electric Excavation Services Contract Approval for Stutsman Gerbaz Earthmoving Inc ............................................................................................................... 3 Resolution #89, Series of 2018 – Contract with Irrigation Analysis for Water Conservation Services 3 Resolution #93, Series of 2018 – Operating Agreement between the City of Aspen and Webops for the Wheeler Opera House Liquor License .................................................................................................... 3 Minutes – May 29, 2018 ....................................................................................................................... 3 RESOLUTION #88, SERIES OF 2018 ........................................................................................................ 3 P166 VI.f Regular Meeting Aspen City Council June 11, 2018 2 At 5:00 p.m. Mayor Skadron called the regular meeting to order with Councilmembers Mullins and Myrin present. CITIZEN COMMENTS 1. Emzy Veazy III said at times, some staff and board members should recuse themselves due to housing reasons. The APD needs equipment for surveillance. 2. Jim Curtis and Becky Ward representing the Aspen Institute, complimented and thank staff. In 2017 council approved the renovation and addition to the Meadows reception center. We started construction in late 2017. The work has been complete for this summer season. It was a tight schedule. We are here to announce that construction was completed over the weekend and everything looks good for the summer season. None of this would have been possible without the cooperation, perseverance and patience of city staff. We can’t thank them enough. Everyone we dealt with in the city helped us in every way possible. Ms. Ward said the building will be dedicated in memory of Walter Isaacson and the pavilion in honor of Madeline Albright. 3. Amanda Tucker said the city filed a charge against my son and I on Friday claiming I’m guilty of financial fraud. The documents have been in the hands of APCHA for the past six months. The charges brought against me claim fraud. Jim True, city attorney, stated it is an APCHA matter, I am not involved and do not have any information other than what I have here. 4. Lee Mulcahy said he is also facing eviction. He is here to ask for a public hearing. He turned in 137 additional signatures for a peaceful resolution. 5. Sandy Mulcahy spoke about the Africa water well project. She said there were deadlines missed but there were circumstances including the death of her husband. She asked council to have a hearing. CITY COUNCIL COMMENTS Councilman Myrin said we heard from Amanda, Lee and Sandy and in the communities eyes the council is accountable for decisions made by APCHA. We are told by the city attorney that the decisions made by APCHA are independent of the city and county. I think the system is broken. Someone ought to be accountable for the most important program. We can’t just sit here and say we don’t have the authority. The system is broken and we need to fix it. We have no one in charge and have no place for the community to go. We have not spent much time meeting with the county to discuss the governance of what we all think is an important program. Mr. True said there is a significant argument and disagreement as to why enforcement is delegated to APCHA. It is in your power to amend those rules. The enforcement powers are delegated to them. Councilman Myrin said I’m saying there is room for improvement. Dick Butera continued his annual donation to the schools and the teachers. There are 650 people showing up to volunteer for Food & Wine so there is community here. The bridge works stops tomorrow. That will be nice for the summer. Another thing in the paper was alternative plans for city offices. This is an opportunity for council to not add 37,000 square feet of additional development. Each square foot makes it more difficult. If we can avoid adding that and keep things in the core I hope it gets council support. Mayor Skadron wished everyone a happy Food & Wine. The masses will be here and it will be a fun weekend. CITY MANAGER REPORTS Steve Barwick thank staff and the community. Town looks great. Most visible are the parks. He recognized everyone from asset, water, parks and com dev. We had some conflicts with pop up sales last year from lemonade stands to t shirt. Contact the city managers office if you want to do a lemonade stand. P167 VI.f Regular Meeting Aspen City Council June 11, 2018 3 Trish Aragon, city engineer, said there is one more day for the bridge project. We will wrap up this phase of the project but will be doing summer side work. It will be starting up again August 20. The impacts will be intermittent lane closures. Full lane closures will start September 4. CONSENT CALENDAR Councilwoman Mullins compliment the staff for making B and C happen. Austin Weiss, parks, said we are excited about both easements. Sky Beam ranch is adjacent to two other parcels. It will combine for 104 acres of protected land. On Verena Malory, we are excited to see that stay open and thrilled this resolution has come out of a strong relationship with AVLT. Councilwoman Mullins said it is good to see that resolved. Pitkin County will be maintaining the Sky Beam easement and we’ll maintain the trail. Mr. Weiss replied they will do all the leg work. Between city and county, we will maintain the Verena Mallory trail. Councilman Myrin said for Resolution 79, it is 8 busses at one million dollars each with savings on fuel over their life. John Krueger, transportation, stated there is estimated savings from the manufacturer but we need to see the reality on maintenance and fuel. Over 12 to 15 years they do amount. There are no engines to maintain. It is a new technology for Aspen so we need to see how that plays out here. Aspen is responsible for purchasing the busses but RFTA will maintain them. We are not sure where the savings, if any, where go. Councilman Myrin asked who pays for the charging. Mr. Krueger said we are having conversations with Holy Cross about rates. It will not be free. Councilman Myrin said will we be purchasing carbon based electricity. Mr. Kruger said he is not certain. RFTA does have some solar that feeds into the grid. Councilman Myrin said he would prefer green energy. Councilwoman Mullins asked if the EOTC has approved this. Mr. Kruger said they approved the $500,000 contribution last year as part of the budget. Mayor Skadron asked what is the expected mileage. Mr. Kruger stated generally 500,000 miles or 12 to 15 years. Mayor Skadron said there is great demand nation wide is there inventory to satisfy that demand. Mr. Kruger replied yes. Kenny Osur, RFTA, said the longest electric bus in operation is only three years. We see the impact on the community and think this is a big step forward. · Resolution #87, Series of 2018 – Elevator Master Service Agreement · Resolution #90, Series of 2018 – Skybeam Ranch conservation Easement · Resolution #91, Series of 2018 – Vernea Mallory Trail Easement · Resolution #79, Series of 2018 – Battery Electric Bus Program-Letter of Financial Commitment · Resolution #92, Series of 2018 – On-Call Electric Excavation Services Contract Approval for Stutsman Gerbaz Earthmoving Inc · Resolution #89, Series of 2018 – Contract with Irrigation Analysis for Water Conservation Services · Resolution #93, Series of 2018 – Operating Agreement between the City of Aspen and Webops for the Wheeler Opera House Liquor License · Minutes – May 29, 2018 Councilwoman Mullins moved to approve the Consent Calendar; seconded by Councilman Myrin. All in favor, motion carried. RESOLUTION #88, SERIES OF 2018 – Lots 1-5, Ranger Station Subdivision – Extension of Vested Rights – TO BE CONTINUED TO JULY 23, 2018 Councilman Myrin moved to continue Resolution #88, Series of 2018 to July 23, 2018; seconded by Councilwoman Mullins. All in favor, motion carried. At 5:55 p.m. Councilwoman Mullins moved to adjourn; seconded by Councilman Myrin. All in favor, motion carried. Linda Manning City Clerk P168 VI.f Page 1 of 3 MEMORANDUM TO: Mayor and City Council FROM: Austin Weiss, Parks and Open Space Director THRU: Jeff Woods, Parks and Recreation Manager, Sara Ott, Assistant City Manager and Jim True, City Attorney DATE OF MEMO: June 18th, 2018 MEETING DATE: June 25th, 2018 RE: Resolution #97, Series of 2018 - Soldner Conservation Easement Acquisition ______________________________________________________________________________ REQUEST OF COUNCIL: Staff is requesting approval of the expenditure of $225,000 for the purchase of a conservation easement on the Soldner property (Exhibit A). The City of Aspen has partnered with both Pitkin County Open Space & Trails and the Aspen Valley Land Trust (AVLT) to facilitate this purchase from Stephanie Soldner. The total purchase price for the conservation easement is $500,000, $50,000 of which will come from the AVLT and the remaining $450,000 will be split evenly between the City and County. PREVIOUS COUNCIL ACTION: Staff met with City Council on December 7th, 2017 to introduce this acquisition opportunity and to discuss the details of the conservation easement. At that time, Council directed staff to proceed with the negotiations and to bring back a contract for final consideration and approval. BACKGROUND: Stephanie Soldner first reached out to City and County staff in 2016 to look at possible partnerships and solutions to protect the Lot 2 parcel of her property in perpetuity. In the Fall of 2017, Stephanie came back to staff with the idea of protecting the parcel with the sale of a conservation easement to the City and County. Staff presented these proposals to both the City and County Open Space and Trails Boards on November 7, 2017 at a joint meeting. Both Boards expressed unanimous support for moving forward with these opportunities. DISCUSSION: The Soldner property is essentially a County inholding surrounded by the City’s boundaries. Burlingame is to the north, Bar X conservation easement is to the east and Deer Hill Open Space to the west. Stephanie Soldner has a subdivision of the property approved, but is hoping to avoid the need to sell a building site. Lot 2 of the Soldner property is a critical wildlife corridor that P169 X.a Page 2 of 3 connects Deer Hill to Bar X Open Space and the Roaring Fork River gorge. This parcel is an undisturbed sage meadow, providing rare, high-quality wildlife habitat. County approvals are in place to permit up to a 12,215-square foot home on the AR – 2 zoned lot. She has been working on a project that seeks to accomplish two basic goals: 1. Avoid development of the northern half of her land (lot 2), and 2. Protect Paul Soldner’s home and studio as a historic artist’s residence. Essentially, this offering is to convey a conservation easement on the vacant north lot 2 for $500,000. The payment would go towards a fundraising goal $2.2 million for an operating endowment, which, once founded, would then result in historic covenants being placed on the original Soldner residence, studio and associated outbuildings. If that fundraising effort is successful, Stephanie would then pursue a larger fundraising effort to establish a “Soldner Center” for the arts and protect this historic resource for future generations. The AVLT has authorized a $50,000 contribution to the purchase. It would be up to the City and County to split the remaining $450,000 ($225,000 each), in which we could demonstrate a three-way partnership and hopefully help Stephanie gain further support for the preservation of the buildings, and ultimately for the creation of the Soldner Center. FINANCIAL/BUDGET IMPACTS: The cost for the conservation easement on the north lot (2) is $500,000. AVLT has committed to $50,000, which would leave $450,000 for the City and County to split evenly. Therefore, the cost to the City of Aspen for the Soldner Conservation Easement would be $225,000. The 2018 approved budget does not include a capital project for this purchase, so staff will include the funding request in the 2018 Fall Supplemental. The Parks Fund has sufficient reserves to cover this expenditure. ENVIRONMENTAL IMPACTS: The acquisition of the Soldner Conservation Easement will protect a critical wildlife corridor that helps insure unhindered wildlife movements between a very large area including West Buttermilk, the Owl Creek Road area, and the Deer Hill Open Space, to the Roaring Fork River corridor. The possible environmental impacts to not purchasing this conservation easement include habitat loss and fragmentation in an area vital to wildlife. RECOMMENDED ACTION: Parks Department staff recommends the purchase of Soldner Conservation Easement for the proposed dollar amount. ALTERNATIVES: Council could choose to not approve this purchase which might result in a loss of an ecological, cultural and historic asset. It is quite likely that the parcel could be sold and a large, up to 12,215 square feet, home could be built on the property. P170 X.a Page 3 of 3 CITY MANAGER COMMENTS: ATTACHMENTS: Exhibit A – Soldner Property Map Exhibit B – Soldner Conservation Easement P171 X.a RESOLUTION # 97 (Series of 2018) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING THE PURCHASE OF A CONSERVATION EASEMENT BETWEEN THE CITY OF ASPEN AND STEPHANIE SOLDNER, OWNER OF A PROPERTY KNOWN AS LOT 2 of 501 STAGE ROAD, ASPEN, CO 81611 AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE PURCHASE OF SAID CONSERVATION EASEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a proposed Conservation Easement between the City of Aspen and Stephanie Soldner, the owner of 501 Stage Road, Aspen CO, a true and accurate copy of which is attached hereto as Exhibit “A”; and WHEREAS, the City of Aspen Open Space and Trails Board recommends the purchase of this conservation easement; and WHEREAS, after due deliberation and consideration the City Council has determined that it is in the best interest of the City of Aspen to approve said Contract. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves the purchase of a Conservation Easement between the City of Aspen and Stephanie Soldner, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. and, hereby authorizes the expenditure of two hundred twenty-five thousand dollars ($225,000.00). INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 25th day of June 2018. Steven Skadron, Mayor I, Linda Manning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held, June 25, 2018. Linda Manning, City Clerk P172 X.a P173X.a 1 DEED OF CONSERVATION EASEMENT IN GROSS SOLDNER WILDLIFE RESERVE Pitkin County DEED OF CONSERVATION EASEMENT IN GROSS (“Easement”) is granted this day of , 2018, by the PAUL E. AND VIRGINIA I. SOLDNER FAMILY LIMITED PARTNERSHIP LLLP, also known as the SOLDNER FAMILY PARTNERSHIP LLLP, (the “Grantor”) to and for the benefit of ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation having offices at 320 Main Street, Suite 204, Carbondale, Colorado 81623 (the “Trust”), and the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, a body corporate and politic ("Pitkin County"), as co-grantees (the Trust and Pitkin County are hereinafter collectively referred to as the “Co-Grantees" and individually as a “Co- Grantee”) (all the parties are referred to collectively as the "Parties"). The Grantor refers to the current owner of the property as well as future owners. The following exhibits are attached hereto and made part hereof: Exhibit A: Property Legal Description, Exhibit B: Plat of Soldner, Exhibit C: Baseline Acknowledgement. RECITALS WHEREAS, Grantor is the sole owner in fee simple of approximately 5 acres of real property located on Stage Road, Aspen, Pitkin County, State of Colorado. The Easement encumbers the 2.051-acre north parcel depicted as “Lot 2” on the Soldner Family LLLP Subdivision plat attached hereto as Exhibit B, designated as Pitkin County Assessor Parcel Number _________________, which acreage is referred to herein and hereafter as the “Property”. WHEREAS, the Property possesses open space, scenic, natural and wildlife values (collectively, “Conservation Values”) of importance to Grantor, the Trust, the people of Pitkin County, and the people of the State of Colorado that are worthy of preservation; WHEREAS, the Conservation Values of the Property are more particularly described in the Baseline Documentation, described in Section 4 herein, and include the following conservation purposes, the protection of which are recognized for qualified conservation NOTICE TO TITLE COMPANY: Division of the property subject to this Easement is prohibited in accordance with Section 7.1. This Easement further requires $100.00 be paid by the recipient to Aspen Valley Land Trust or its successor at the time of every transfer of this Property, as described in Section 16. This payment is exempt from the transfer fee restrictions contained within C.R.S. 38-35-127. P174 X.a 2 contributions under Section 170(h)(4)(A) of the Internal Revenue Code of 1986, as amended (“IRC”), and under Section 1.170A-14(d) of the Treasury Regulations: · Relatively Natural Habitat [§ 1.170A-14(d)(3)]. The Property consists primarily of a sage meadow, which provides a haven for open field-loving birds, insects, ungulates and small mammals, which have special conservation status on the global and state level. The property’s native plant communities and connectivity to other conserved properties adjacent to the Roaring Fork River and Maroon Creek provide important relatively natural habitat and migration areas for a diversity of wildlife. Although the property only encompasses two acres of wildlife habitat, many species use the property as a link between valuable habitats off the property or the property is a portion of a greater home range. Mule deer are found on the Property throughout the year and elk depend on the property for important winter refuge and during the transition between summer and winter.. Conserving this Property is most important for providing connectivity for deer and elk moving between neighboring larger conservation easements on Deer Hill Open Space and the BarX Ranch conservation easement, which provides connectivity in turn to the Roaring Fork River and other important habitat for big game. According to the Baseline Documentation Report, “there are at least 25 mammal species known or suspected to occur on the property”. The property’s greatest conservation value is as a link between the many other conserved properties in the area providing safe passage for elk, mule deer, and other species between those properties as well as the Roaring Fork River and Maroon Creek riparian corridors. · Open Space [§ 1.170A-14(d)(4)]. The Property qualifies as open space because it will be preserved for the scenic enjoyment of the general public and will yield a significant public benefit. o Scenic Enjoyment. The Property adds to the scenic character of the local landscape in which it lies, and connects two conserved open space properties on Deer Hill and Bar X Ranch, which lie on either side of the Property. As such, the Property provides a degree of openness, contrast and variety to the overall landscape, and is entirely visually accessible to the general public from Stage Road and Harmony Lane, both public roads accessible to the general public, and from recreational trails and nearby public lands, including Red Butte. In addition, the Property provides a scenic open space buffer to the historic Soldner Art Center, located adjacent to the Property, which is eligible for nomination to (and under consideration for) the National Register of Historic Places. o Governmental Policies. Conservation of the Property is promoted by local, state, and federal governmental policies, including the goals and policies of Pitkin County and the City of Aspen. The laws and regulations of the State of Colorado and the United States support conservation of the Property relative to its scenic, wildlife habitat, agricultural heritage, and natural area values: · The Pitkin County Open Space and Trails program was founded in 1990 for the purposes of: (1) Shaping development (greenbelt and viewplanes). (2) Incorporating or protecting significant wildlife habitat and corridors. (3) Preserving historic agricultural and ranching activities. (4) Protecting other public lands from the impacts of development. (5) Preserving historic routes of ingress and egress to public lands and waterways. (6) Providing recreational opportunities throughout Pitkin P175 X.a 3 County which are directly related to and not inconsistent with the foregoing purposes. o Significant Public Benefit. The Property connects other conserved lands in a portion of Pitkin County and the City of Aspen where there is a trend of intense development in the vicinity of the Property. The Property is an island of unincorporated land surrounded by the City of Aspen, which is undergoing intense residential and commercial development, making preservation of open space buffers important. Development of the Property would contribute to degradation of the scenic and natural character of the area, while its preservation will help retain these scenic characteristics. The Property provides habitat connectivity to conservation easements on Deer Hill and BarX Ranch, which are managed by the Trust and the City of Aspen. · Historic Preservation [§ 1.170A-14(d)(5)] The preservation of the Property has importance as a historically important land area adjacent to historic structures eligible for listing on (and currently being considered for) the National Register of Historic Places. The Property is part of the grounds of the Soldner Art Center, and contributes to its scenic, historic, and cultural integrity. WHEREAS Paul Soldner is a major force in the evolution of contemporary ceramic art and acknowledged for his many contributions to ceramic art and art history. Soldner is known for creating American Raku, an entirely new ceramic firing technique, for his kiln designs, and for inventing Soldner Clay Mixers and Soldner electric potter’s wheels for which he held 7 patents. Beginning in 1956 Paul and his wife Ginny Soldner hand-built their unique home and art studio on 5 acres in Aspen Colorado comprising 5 buildings, which integrated environmental principles such as use of solar energy and repurposing materials. The property has been subdivided into 2 parcels, with all buildings and improvements located on the south parcel. This conservation easement is preserving the north parcel which is undeveloped and free from any buildings or other improvements. The Soldner home and studio on the south parcel also contain Paul and Ginny’s private art collection of ceramic artwork made by many of the important American ceramic artists of the second half of the 20th century. The Soldner home is unique, containing many examples of early artwork by influential 20th century ceramic artists who were Paul and Ginny Soldners’ friends and colleagues. The Soldner heirs hope to create a Cultural Art Center in the future on the south parcel adjacent to the conserved parcel in order to provide access to this unique property to artists, innovators and the public, locally and around the world. WHEREAS, Grantor intends, as owner of the Property, to convey to the Co-Grantees the right to preserve and protect the Conservation Values of the Property in perpetuity and the Co- Grantees agree by accepting this grant to honor the intentions of Grantor stated herein and to preserve and protect in perpetuity the Conservation Values of the Property; Whereas Pitkin County's portion of the purchase price was drawn from its Open Space Fund, the County's interest therein is subject to the prohibition on conversion of open space property, as provided in the Pitkin County Home Rule Charter at section 13.5.3; Whereas City of Aspen's portion of the purchase price was drawn from its Open Space P176 X.a 4 Fund, the City's interest therein is an interest in real property acquired for open space purposes, subject to the prohibition on conversion of open space property, as provided in the Aspen Home Rule Charter at section 13.4; WHEREAS, the State of Colorado has recognized the importance of private efforts toward the preservation of natural systems in the State by the enactment of C.R.S. §§38-30.5-101 et seq.; WHEREAS, the Trust is a charitable organization as described in IRC Section 501(c)(3) and is a publicly-supported organization as described in IRCSection 170(b)(1)(A) whose primary purpose is to preserve and protect the natural, scenic, agricultural, historical, and open space resources of the greater Roaring Fork Valley area, including the area in which the Property is located, by assisting landowners who wish to protect their land in perpetuity, and is a “qualified organization” to do so within the meaning of IRC Section 170(h)(3) possessing the resources and commitment to protect and defend the conservation purposes of this grant; WHEREAS, the Trust also meets requirements of Colorado law as a qualified recipient for a conservation easement under C.R.S. §38-30.5-104, and is certified to hold conservation easements for which a state tax credit is claimed by the State of Colorado’s Division of Real Estate as outlined in C.R.S. §12-61-724 and in Rule 2.1 of the Code of Colorado Regulations, Qualifications for Certification to Hold Conservation Easements (4 CCR 725-4, Rule 2.1), for the current year. The Trust is also accredited by the Land Trust Accreditation Commission, a national accreditation program sponsored by the Land Trust Alliance; WHEREAS, the Board of Directors of the Trust has duly authorized the Trust’s Executive Director or her designee to execute and accept this conservation easement on behalf of the Trust; WHEREAS, the Board of County Commissioners of Pitkin County, Colorado is a body corporate and politic and is duly authorized to execute and accept the Easement and has an open space program dedicated to the conservation of land and is qualified to hold conservation easements as a government entity under C.R.S. 38-30.5-104; and WHEREAS, the Easement is partially purchased and partially donated because the purchase price is less than the appraised value of the Property. The purchase price of the Easement was paid in part with funds contributed by Pitkin County, Aspen Valley Land Trust, and the City of Aspen, Colorado, a Colorado municipal corporation (the “City”), for the purpose of protecting certain ecological and open space values important to the residents and visitors of the City. AGREEMENT NOW, THEREFORE, in consideration of the matters above, the mutual covenants, terms, conditions and restrictions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. GRANT P177 X.a 5 Grantor hereby voluntarily and irrevocably grants and conveys to the Co-Grantees this unrestricted gift of a perpetual Conservation Easement in gross (“Easement”) over and across the Property pursuant to C.R.S. §§38-30.5-101 et seq., through the terms mutually agreed to in this Easement, and to hold said Easement unto the Co-Grantees and their successors and assigns forever. Grantor agrees that the grant of the Easement gives rise to a property right, immediately vested in the Co-Grantees, which shall constitute a binding servitude upon the Property and shall be subject to prior reservations, easements, encumbrances and exceptions of record, except as otherwise set forth herein. 2. PURPOSES Pursuant to the terms of C.R.S. §§38-30.5-101 et seq., the purposes of the Easement are to assure that the Property will remain forever predominantly in its scenic, natural and open space condition, subject to the uses of the Property permitted hereunder, to protect and preserve the Conservation Values in perpetuity, to prevent any use of the Property that is inconsistent with the preservation and protection of the Conservation Values and, in the event of their degradation or destruction, to require restoration of such Conservation Values. The primary purpose of this Easement is to protect the wildlife habitat of the Property, the protection of which creates a natural buffer and habitat connectivity between important mule deer and elk winter range on the neighboring Deer Hill and Bar X conservation easements. The secondary purpose is to protect scenic views of the Property visible to the general public from public rights-of-way, as well as the scenic characteristics of the neighboring historic Soldner Art Center. The Easement protects both the primary and secondary purposes, and both are collectively defined as the “Purposes.” The Purposes are prioritized in order to guide the perpetual protection, enforcement, and management of the Purposes over time pursuant to Sections 7 and 12 herein; and the approval, amendment, and termination requests relating to the Purposes pursuant to Sections 11, 19, and 14, respectively. Should the Property’s use for the primary purposes become impossible to achieve, the Property shall continue to be protected for the secondary purposes, and remain available for the primary purpose. Should the Property’s use for the secondary purpose become impossible to achieve, the Property remain available for the primary and secondary purposes. Should the Property’s use for all of the listed purposes become impossible, the parties shall proceed in accordance with Sections 14 and 15 below, and consistent with applicable laws, (as defined in Section 21.1), to continue to honor the original purposes set out for protection by this Deed. 3. INTENT Subject to the express reservations and prohibitions described in Section 7 below, the Parties’ intent is to permit all uses of the Property that are consistent with the Purposes of the Easement (defined above) as determined by the Co-Grantees in their sole discretion. Nothing in this Easement is intended to prevent Grantor’s quiet and reasonable enjoyment of the Property, or to compel a specific use of the Property other than the preservation and protection of the Conservation Values. 4. BASELINE DOCUMENTATION P178 X.a 6 The Parties acknowledge that a Baseline Inventory and Present Condition Report of the Conservation Values and relevant features of the Property was prepared on __________________, 2018 by Colorado Wildlife Science, LLC, a company familiar with conservation easements, the Property, and the environs, and is on file with the Parties and incorporated herein by reference (collectively, the “Baseline Documentation”). The Parties acknowledge and agree that by the execution of this Easement they approve, acknowledge, and accept the Baseline Documentation as an accurate representation of the condition of the Property at the time of this grant. The Parties agree that the Baseline Documentation is not intended to preclude the use of other evidence to establish the present condition of the Property should a controversy arise over its use. 5. RIGHTS OF THE CO-GRANTEES To fulfill the Purposes of this Easement, Grantor hereby conveys to the Co-Grantees a property right and interest in the form of this Easement, which immediately vests with the Co- Grantees (as agreed in Section 1 and stipulated in Section 14.3, herein), and which the Parties agree includes the following affirmative rights: 5.1. The right to all development rights deriving from, or associated with, the Property in any way (“Co-Grantees’ Development Rights”), except those expressly reserved by Grantor in Section 7 of this Easement, shall be held by the Co-Grantees in perpetuity in order to fulfill the Purposes of this Easement, and to ensure that such rights are forever released and terminated as to Grantor and its successors and assigns; 5.2. The right to preserve and protect the Conservation Values in perpetuity; 5.3. The right to enter upon the Property at least annually at reasonable times agreed to mutually by Grantor and the Co-Grantees to inspect the Property thoroughly, to monitor Grantor’s compliance with, and otherwise enforce the terms of this Easement; provided that such entry shall not unreasonably interfere with Grantor’s use and quiet enjoyment of the Property, with the exception that no such notice shall be required in the event the Co-Grantees reasonably believe that immediate entry upon the Property is essential to prevent or mitigate a violation of the Easement; 5.4. The right, as an interest owner in the Property, to prevent or enjoin Grantor or third parties (whether or not invitees of Grantor) from engaging in any activity or use of the Property that is inconsistent with the Purposes of the Easement; and the right to require Grantor or third parties, as may be responsible, to restore such areas or features of the Property that are damaged by any inconsistent activity or use, subject to the qualifications of Section 13.5 herein; 5.5. The right to place and maintain on the Property a sign or signs indicating that a conservation easement is held by the Trust on the Property. The size of the sign and the location, design and content of such signs shall be mutually agreed to by the Trust and Grantor in accordance with applicable signage regulations and the terms of this Deed. The Trust shall be responsible for the maintenance of any such signs. P179 X.a 7 5.6. The right, as an interest owner in the Property, to receive notification from and join Grantor as a party to any condemnation or eminent domain proceedings affecting the Property (as described in Section 14), or to any oil and gas leases, surface use and agreements, damage agreements or rights-of-way that may be proposed, granted or required hereafter as a result of mineral development (as described in Section 7.3.F) or other activities with the potential to impact the surface of the Property or its Conservation Values; and 5.7. Any other rights that the Parties may jointly approve consistent with the Purposes of the Easement, including adding additional purposes or defining additional Conservation Values. 6. RIGHTS OF GRANTOR Grantor reserves to itself and to its personal representatives, heirs, successors, and assigns, all rights and obligations accruing from its ownership of the Property, including the right to engage in activities and uses of the Property not prohibited herein and that are consistent with the Purposes of the Easement, pursuant to IRC §170(h)(4) and C.R.S. §38-30.5-102. 7. PROHIBITED AND PERMITTED USES / RESERVED AND RESTRICTED RIGHTS The following uses and practices by Grantor, though not an exhaustive recital, are either permitted or prohibited by this Easement. Certain uses, where indicated, require notice to or approval from the Co-Grantees, according to Sections 10 and 11. Any other activities that are inconsistent with the Purpose of this Easement or with preservation and protection of the Conservation Values are prohibited. Grantor shall request the Co-Grantees’ prior approval for uses not expressly described herein when there is a question as to their consistency with the Purposes of this Easement. 7.1. No Division of Property. Hereafter, Grantor shall not divide or subdivide (including de facto subdivision) the Property, and at all times the Property shall be owned as a single parcel. Ownership of the Property by joint tenancy or tenancy in common is permitted; however, actions to partition or condominiumize the Property are prohibited. 7.2. Buildings and Improvements. At the time of the grant of this Easement, there exist no buildings or improvements on the Property. The construction or location of any improvements (defined as permanent or temporary buildings, structures, mobile homes or other physical, human-introduced development of or on the Property, including but not limited to landscaping, fences, roads, utilities, septic systems, and golf courses) is prohibited on the Property, except as follows in this Section 7.2: A. Existing Improvements.There are no improvements and there shall be no improvements on the Property, also depicted in Exhibit B. B. Recreational Improvements. Recreational improvements including buildings, trails, golf courses and other recreational amenities, are prohibited on the Property. P180 X.a 8 C. Utilities, Irrigation and Other Technology. The installation of or granting of easements and rights-of-way for utilities, utility lines, and other technological infrastructure is prohibited without prior approval from the Co-Grantees, except as permitted by easements or rights-of-way existing prior to the grant of this Easement. D. Signage or Billboards. No signs or billboards shall be displayed or placed on the Property except for signs informing the public of funding partners and Co-Grantees that participated in the conservation of the Property. 7.3. Natural Resource Management and Property Use. Grantor recognizes the importance of good resource management and stewardship to preserve and protect the Conservation Values. Accordingly, Grantor agrees not to alter the topography of the Property through placement or removal of soil, gravel, land fill, or other materials, nor to impair or disturb the relatively natural habitat for native plants, wildlife, or ecosystems on the Property except: (a) as necessary in emergencies including wildfire, flood and landslide; (b) as approved by the Co- Grantees and any required permitting agencies for habitat enhancement or restoration purposes; (c) as necessary for improvements permitted in Section 7.2, above; and (d) as necessary to uses permitted in this Section 7.3, below. No surface alterations may be made that damage the Conservation Values. A. Livestock and Grazing. Livestock and grazing are prohibited on the Property, except occasional livestock grazing to control weeds for short periods. B. Berm. Grantor may build a berm of up to 5 feet in height on Lot 2 for the purpose of enhancing and protecting wildlife passage. C. Weed Control. Grantor agrees to control noxious weeds and invasive plant species on the Property in accordance with the Colorado Noxious Weed Act codified at C.R.S. 35- 5.5-101 et seq., as amended, and other Applicable Laws, and shall not intentionally introduce noxious weeds or invasive species to the Property. D. Trash and Dumping. Grantor shall not dump or permanently accumulate trash, garbage, or other refuse on the Property, except for agricultural by-products and compostable matter produced or used on the Property. E. Minerals. Grantor owns all of the mineral rights associated with the Property, and Grantor agrees not to separate or transfer any portion of the mineral rights from the Property. In addition, Grantor shall not engage in, lease or otherwise permit the development of such rights on the Property, except by non-surface occupancy methods that will not impact the surface of the Property or otherwise damage the Conservation Values (including ground and surface water resources). a. Future Non-Surface Mineral Development. Grantor shall notice and obtain the consent of the Trust prior to engaging in or entering into any permitted non-surface P181 X.a 9 occupancy mineral development, units, pools, leases, or agreements affecting the Property or underlying minerals, of which documents, leases, and agreements (the “Mineral Agreement” or “Mineral Agreements”) shall be subordinate to this Easement, shall reference this Easement, and summarize the restrictions of this paragraph. The Trust shall claim no rights to proceeds or royalties from any permitted mineral development, except that the Co-Grantees shall have the right to charge a fee to cover its time and expenses for reviewing any proposed Mineral Agreement. Grantor retains sole execution authority for all permitted Mineral Agreements, excluding surface use agreements, for which the Co-Grantee retains the right to execute together with Grantor, provided the Co-Grantees have been properly notified and have had the opportunity to review the Mineral Agreement as required herein. b. Current Mineral Leases and Development. At the time of the Easement’s grant, there are no active oil and gas or other mineral leases or agreements on or affecting the Property. F. Water Rights. There are no water rights associated with this Property. G. Commercial and Industrial Activities. Grantor shall not conduct industrial or commercial activities on the Property. 8. PUBLIC ACCESS By terms of this Easement, Grantor does not afford the public any more than visual access to any portion of the Property. Grantor may permit public access to the Property on such terms and conditions as it deems appropriate, provided that such access is consistent with the terms and Purposes of this Easement. Grantor shall ensure that any public access permitted on the Property is consistent with Colorado’s recreational use statute C.R.S. § 33-41-101 et seq. to limit liability of Co-Grantees, and provides indemnity to the Co-Grantees for the public’s access to and use of the Property. 9. REPRESENTATIONS AND WARRANTIES Grantor represents and warrants that, after reasonable investigation and to the best of its knowledge: 9.1. Except for fuels customarily used or transported in connection with agricultural and construction activities; no substance defined, listed, or otherwise classified pursuant to any federal, state, or local law or regulation as hazardous, toxic, polluting, or otherwise or threatening to human health or the environment exists or has been used or released on the Property; 9.2. There are not now any underground storage tanks located on the Property, and no underground storage tanks have been removed from the Property in a manner not in compliance with Applicable Laws); P182 X.a 10 9.3. Grantor and the Property are in compliance with all federal, state, and local laws and regulations applicable to the Property and there is no existing, pending or threatened litigation affecting or relating to the Property; 9.4. Grantor has good and sufficient title to the Property and has lawful authority to grant and convey the Easement, that any mortgages or liens on the Property are subordinate to the terms of this Easement, and that Grantor shall warrant and forever defend the title to the Easement against all and every person or persons lawfully claiming by, through or under Grantor, the whole or any part thereof, except for rights-of-way, easements, restrictions, covenants and mineral reservations of record. 10. NOTICE OF INTENTION TO UNDERTAKE CERTAIN PERMITTED ACTIONS; REQUESTS FOR APPROVAL The purpose of requiring Grantor to notify the Co-Grantees before undertaking certain activities and uses of the Property, as identified in Section 7 or elsewhere in this Easement, is to afford the Co-Grantees an opportunity to update their records and, if approval is required, to ensure that the activities in question are consistent with the terms and Purposes of this Easement. Grantor shall provide notice to Co-Grantees and seek their approval, according to Section 11 below, for proposed activities or uses not described herein when there is a question as to consistency with the terms or Purposes of the Easement or protection of the Conservation Values. Whenever notice and the Co-Grantees’ approval are required, Grantor shall notify the Co- Grantees in writing not less than 60 days prior to the date Grantor intends to undertake the activity in question, and describe the nature, scope, design, location, timetable, and any other material aspect of the proposed activity in sufficient detail to permit the Co-Grantees to make an informed judgment as to the activity’s consistency with the terms and Purposes of this Easement. Whenever notice is required without the Co-Grantees’ approval, Grantor shall notify the Co- Grantees in writing not less than 30 days in advance of the proposed activity, unless this Easement provides otherwise. 11. CO-GRANTEES’ APPROVAL Whenever this Easement requires that Grantor obtain the Co-Grantees’ approval for any activity or use of the Property, or if Grantor desires approval for any activity not clearly allowed by the Easement, or if the Co-Grantees believe a use is use not clearly consistent with the terms or Purposes of the Easement, such approval shall be given in the Co- Grantees’ sole discretion, according to whether the Co-Grantees determine that such activity will not damage the Conservation Values, which burden of proof lies with the Grantor. The Co-Grantees’ approval may be withheld in its sole discretion if the Co-Grantees determine that the proposed activity would damage the Conservation Values or be otherwise inconsistent with the terms and Purposes of this Easement. The Co-Grantees shall set forth their determination, and the reason(s) for the determination, in writing to Grantor within 30 days of receipt of Grantor’s written notice and request for approval (as described in Section 10, above). If Co-Grantees do not respond within 30 business days, they shall be deemed to have approved the requested activity. In the event the Co- Grantees should withhold their approval, they may also specify to Grantor any modifications to the request that might render the request consistent with the terms and Purposes of the Easement. P183 X.a 11 Where Co-Grantee’s approval is required, Grantor shall not undertake the requested activity until Grantor has received Co-Grantee’s approval in writing. 12. TRUST’S REMEDIES: ENFORCEMENT The Co-Grantees shall have the right to prevent and correct, or require correction of, violations of this Easement. The Co-Grantees are not responsible for monitoring for or enforcing violations of any Applicable Laws (as defined in Section 21.1), permits, or third party contracts affecting the Property now or in the future, except to the degree that any violations of Applicable Laws also violate this Easement, damage the Conservation Values, or be otherwise inconsistent with the Purposes or terms of this Easement. If the Co-Grantees find what they believe is a violation, or a threat of a violation of this Easement, the Co-Grantees shall notify Grantor and the City of Aspen of the nature of the alleged violation. Upon receipt of this notice, Grantor shall immediately discontinue the activity until resolution is achieved with the Co-Grantees, or ensure any third party’s activity is discontinued that could increase or expand the alleged violation and shall either: (a) restore the Property within 60 days to its condition prior to the violation, or (b) if immediate restoration is not possible, Grantor shall submit a restoration plan to the Co-Grantees within 60 days; or (c) provide a written explanation to the Co-Grantees of the reason why the alleged violation should be permitted. If the Co-Grantees are not satisfied with Grantor’s written explanation or restoration actions, the Parties agree to meet as soon as possible to resolve their differences. If a resolution cannot be achieved at the meeting, the Parties agree to attempt to resolve the dispute pursuant to Section 12.1, below. At any time, including if Grantor does not immediately discontinue any activity that could increase or expand the alleged violation, or if the Co-Grantees believe an ongoing, imminent, or threatened activity violates the Easement, the Co-Grantees may take immediate legal action to stop the activity without prior notice to Grantor, without waiting for the period provided for cure to expire, and without waiting for the 60-day mediation period to expire. The Co-Grantees may bring an action at law or in equity, ex parte as necessary, in a court of jurisdiction to enforce the terms of this Easement and to enjoin a violation by temporary or permanent injunction, which may require restoration of the Property to the condition that existed prior to the violation. The Co- Grantees' remedies described here shall be in addition to all remedies now or hereafter existing at law or in equity, and shall include, without limitation, the right to recover damages for violation of the terms of this Easement or injury to the Conservation Values, including damages for the loss of scenic, aesthetic, or environmental values, and the right to other remedies designed to deter bad acts, including restitution of tax benefits or payments for the Easement, disgorgement of profits, and liquidated and punitive damages. The Co-Grantees may apply any damages recovered to the cost of undertaking restorative, remedial or corrective action on the Property without limiting Grantor’s liability for such damages or corrective action. Enforcement of the terms of this Easement shall be at the sole discretion of the Co- Grantees, and any forbearance by the Co-Grantees to exercise its rights under this Easement shall not be construed to be a waiver by the Co-Grantees of their rights, or of any term(s) of the Easement, including any subsequent breach of the same or other term(s) of this Easement. No P184 X.a 12 delay or omission by the Co-Grantees in the exercise of any right or remedy shall impair such right or remedy or be construed as a waiver. The failure of the Co-Grantees to discover a violation or to take immediate legal action shall not bar the Co-Grantees from doing so at any time after the date upon which the violation is discovered. All reasonable costs incurred by the Co-Grantees in enforcing the terms of this Easement by legal or other means, including but not limited to costs of pursuing legal or other action and reasonable attorney’s fees, and costs of restoration necessitated by Grantor’s violation of the terms of this Easement, shall be borne by Grantor, unless Grantor ultimately prevails in a judicial enforcement action or a court finds as a matter of law that the Co-Grantees acted in bad faith in seeking to enforce the terms of this Easement, in which case the Co-Grantees and Grantor shall bear their own costs. If the Parties agree to mediation, the Parties will equally share the cost of the mediator’s fees; In order to protect the public investment in this Easement, the City (the “back-up enforcement party”) is granted the individual right as a back-up enforcer to join the Co-Grantees in enforcing the terms of this Easement, or to pursue enforcement of this Easement without the participation of the Co-Grantees only and exclusively in the event the Co-Grantees decline enforcement in accordance with this Section, and invite the City to enforce in their stead. In addition, should the Co-Grantees fail to monitor the Property annually as required by this Easement, the City may elect to assume monitoring responsibilities for that calendar year. The City may only exercise these back-up rights of enforcement after receiving such invitation from the Co-Grantees, and thereafter providing thirty (30) days’ notice to Grantor, and the Co-Grantees of the alleged violation and the steps being taken to correct the alleged violation. 12.1. Mediation. If a dispute arises between the Parties concerning the consistency of any proposed activity with the terms of this Easement, and Grantor agrees not to proceed with the activity pending resolution of the dispute, the Parties shall attempt to negotiate a resolution for 30 days. If unresolved, either Party may refer the dispute to mediation by written request to the other. Within 10 days of the receipt of such request, the Parties shall select a trained and impartial mediator, preferably with experience in real property law and land conservation. If the Parties are unable to agree on a mediator, or no such experienced mediator is available, then the Parties shall each select a qualified mediator and those two mediators shall select a mediator who shall alone mediate the dispute. Mediation shall then proceed in accordance with the following guidelines: A. Purpose. The purpose of the mediation is to: (a) promote discussion between the Parties; (b) help the Parties develop and exchange information concerning the issues in dispute; and (c) help the Parties develop proposals that will enable them to arrive at a mutually acceptable resolution. The mediation is not intended to result in or be interpreted as resulting in any modification or amendment of the terms, conditions, or restrictions of this Easement; B. Participation. The mediator may meet with the Parties and their counsel jointly or ex parte. The Parties agree that they will participate in the mediation process in good faith and expeditiously, except in cases where the Co-Grantees believe that there is ongoing damage to Conservation Values, in which case the Co-Grantees can suspend its P185 X.a 13 involvement in the mediation to remedy this threat of ongoing violation. Representatives of the Parties with settlement authority will attend mediation sessions as required by the mediator; C. Confidentiality. All information presented to the mediator shall be confidential and may be disclosed by the mediator as the mediator determines unless a party demands confidentiality. The mediator shall not be subject to subpoena by any Party in any subsequent litigation; D. Time Period and Fees. Neither Party shall be obligated to continue the mediation process beyond a period of 60 days from the date of the initial meeting with the mediator, nor if the mediator concludes that there is no reasonable likelihood that continuing mediation will result in a mutually agreeable resolution. The Parties shall each bear 50% of the mediator’s fees. 13. COSTS, LIABILITIES, TAXES, AND ENVIRONMENTAL COMPLIANCE 13.1. Costs, Legal Requirements and Liabilities. Grantor retains all responsibilities and obligations and shall bear all costs and liabilities related to the ownership, operation, and maintenance of the Property, including the payment of property and other taxes related to the Property, and maintenance of liability insurance coverage. Grantor shall make best efforts to keep the Property free of any liens arising out of any work performed for, materials furnished to, or obligations incurred by Grantor. Nothing in this Easement shall be interpreted as prohibiting Grantor from obtaining loans secured by deeds of trust encumbering the Property, provided any such deeds of trust are subordinate to this Easement. Grantor shall pay before delinquency all taxes, assessments, fees and charges of whatever description levied on or assessed against the Property by competent authority and shall furnish County with satisfactory evidence of payment upon request; 13.2. Control. Nothing in this Easement shall be construed as giving rise, in the absence of a judicial decree, to any right or ability of the Co-Grantees or the City of Aspen to exercise physical or managerial control over the day-to-day operations of the Property, or over any of Grantor’s activities on the Property, or otherwise to become an operator with respect to the Property within the meaning of The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), and any Colorado state law counterpart; 13.3. Hold Harmless. Grantor shall hold harmless, indemnify and defend the Co- Grantees, the City of Aspen and their members, directors, officers, employees, agents, and contractors and the heirs, personal representatives, successors, and assigns of each of them (collectively, the “Indemnified Parties”) from and against all liabilities, penalties, costs, losses, damages, expenses, causes of action, claims, demands or judgments including, without limitation, reasonable attorneys’ fees, arising from or in any way connected with: (a) the injury to or the death of any person, or damage to property, occurring on or about or related to the Property, regardless of cause, unless and to the extent such injury, death, or damage was caused by the willful and wanton act (as defined by C.R.S. §13-21-102(1)(b)) or omission of any of the Indemnified Parties; (b) the violation or alleged violation of, or other failure to comply with, any P186 X.a 14 state, federal, or local law, regulation, or requirement, including, without limitation, CERCLA, by any person other than any of the Indemnified Parties, in any way affecting, involving, or relating to the Property; (c) the presence or release of hazardous or toxic substances in, on, from, or under the Property at any time, of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment, unless and to the extent caused by any of the Indemnified Parties; (d) payment of taxes imposed upon or incurred by the Property as a result of this Easement, including property taxes and the sale of income tax credits acquired as a result of this Easement; (e) tax benefits or consequences of any kind which result or do not result from entering into this Easement; and (f) the obligations, covenants, representations, and warranties described herein; 13.4. Waiver of Certain Defenses. Grantor hereby waives the defenses of laches, estoppel and prescription. Grantor and waives any defenses or rights available to Grantor pursuant to C.R.S. §38-41-119 and agrees that the one-year statute of limitation provided by C.R.S. §38-41-119 does not apply to this Easement; 13.5. Acts Beyond Grantor’s Control. Nothing contained in this Easement shall be construed to entitle the Co-Grantees to bring any action against Grantor for any injury to or change in the Property resulting from causes beyond Grantor’s control, including, without limitation, fire, flood, storm, and earth movement, or from any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Property. Grantor is not responsible for acts of third parties not authorized to access the Property, but shall be responsible for all third parties, including guests or invitees, authorized by Grantor to access the Property. The Co-Grantees retain the right to enforce the terms of this Easement against third parties or Grantor or both for violations of the Easement or damage to the Property. Grantor shall make best efforts to prevent third parties from performing, and shall not knowingly allow third parties to perform, an act on or affecting the Property that is inconsistent with the Purpose of this Easement. 14. EXTINGUISHMENT AND CONDEMNATION 14.1. Extinguishment. The Parties agree that any changes in the economic viability of the uses permitted or prohibited by this Easement, or changes to neighboring land and its use shall not be deemed circumstances or conditions justifying the termination or extinguishment of the Easement. In addition, the inability of Grantor, or Grantor’s heirs, successors or assigns, to implement any or all of the uses permitted under this Easement shall not impair the validity of the Easement, or be considered grounds for termination or extinguishment of this Easement. Further, this Easement cannot be abandoned, released, terminated, extinguished, or affected by adverse possession. If circumstances arise in the future that render the Purposes of this Easement impossible to accomplish, the Easement can only be terminated or extinguished, in whole or in part, by judicial proceedings after a court of competent jurisdiction has found that the Purposes of this Easement are impossible to accomplish. Each Party shall promptly notify the other and the City of Aspen P187 X.a 15 when it first learns of such circumstances. The amount of the proceeds to which the Co-Grantees, and the City of Aspen shall be entitled from any sale, exchange, or involuntary conversion of all or any portion of the Property subsequent to such termination, shall be determined, unless otherwise provided by Colorado law at the time, in accordance with the Proceeds paragraph below, and such proceeds shall be used by the Co-Grantees, City of Aspen in a manner consistent with the conservation Purposes of the original Easement contribution, as required by §1.170A- 14(g)(6)(i) of Treasury Regulations; 14.2. Condemnation. If the Easement is taken by condemnation, or by purchase in lieu of condemnation by any public, corporate, or other authority so as to terminate the Easement in whole or in part, Grantor and the Co-Grantees shall act jointly to recover the full value of the interests in the Property subject to the taking or in-lieu purchase, and all damages resulting there from. All expenses reasonably incurred by the Parties in connection with the taking or in-lieu purchase shall be paid out of the amount recovered. The Co-Grantees shall receive a share of the proceeds equal to the consideration they paid for the Easement divided by the value of the Property determined by the appraiser hired by Grantor to value the Property before it was encumbered by the Easement. The Co-Grantees and the City of Aspen’s share of the balance of the amount recovered shall be determined by multiplying that balance by the percentage set forth in Proceeds paragraph below. 14.3. Proceeds. This Easement constitutes a real property interest immediately vested in the Trust, the value of which is to be determined using a fair market value that is equal to the proportionate value that the Easement at the time of the gift, bears to the value of the Property as a whole at the time of the gift, according to the following fraction: $500,000 purchase price of the conservation easement Appraised fair market value of the property accepted by Co-Grantees Should the Easement be taken for public use or otherwise terminated according to the Extinguishment and Condemnation paragraphs above, the Co-Grantees and the City of Aspen shall be entitled to compensation for their proportionate interests, which shall reflect the proportionate monetary contribution of each toward the $500,000 purchase price of the Conservation Easement by the Co-Grantees, which is as follows: the Aspen Valley Land Trust’s is 10% ($50,000 contributed), Pitkin County’s is 45% ($225,000 contributed), and the City’s is 45% ($225,000 contributed). 15. ASSIGNMENT OF EASEMENT In the event a Co-Grantee is no longer able to carry out its duties and obligations under this Easement, or if circumstances change so that another similar organization is better able to carry out such duties and obligations, such Co-Grantee may, upon prior notice to the other Co-Grantee, Grantor, City of Aspen and with prior written consent of City of Aspen, transfer the Easement and assign its rights and obligations under this Easement solely to the other Co-Grantee or to a qualified land conservation organization that is, at the time of transfer: (a) willing and able to accept the transfer; (b) a qualified organization under IRC §170(h) (or any successor provision then applicable), and its applicable Treasury Regulations; (c) authorized to hold conservation easements P188 X.a 16 under Colorado law; (d) charged with a land conservation mission similar to that of the Trust; and (e) approved by the other Co-Grantee. Should a Co-Grantee be unable to assign the Easement according to the procedure set out in this Section 15, or should either the other Co-Grantee, or the City refuse to consent to the transfer, or should the Trust cease to exist, then a court with competent jurisdiction shall assign such Co-Grantee’s interest in the Easement to an organization meeting the criteria described in subsections (a)-(d) herein this paragraph, and shall provide Grantor, City of Aspen notice of and an opportunity to participate in the court proceeding. If both of the Co- Grantees should be unable to monitor the Easement at least annually, or become unable or unqualified to enforce the terms of the Easement, the City shall consult with the Co-Grantees and provide the Co-Grantees an opportunity to address the City’s concerns. If the concerns of the City are not addressed to its satisfaction, such entity shall have the right to require that the Co-Grantees assign this Easement to an organization designated by the City that meets the criteria described in subsections (a)-(d) above in this paragraph. As a condition of such transfer, the transferee shall expressly agree, in writing, to uphold the Purposes of the Easement and to otherwise assume all of the obligations and liabilities of the Co-Grantees set forth in this Easement. After such transfer, the Co-Grantees shall have no further obligation or liability under this Easement. 16. SUBSEQUENT TRANSFERS OF PROPERTY Grantor agrees to notify any party who may purchase, lease, or otherwise hold interest in this Property of the terms of this Easement, and to provide a copy of the Easement and the Baseline Documentation to such party if requested. The conveyance document shall expressly refer to this Easement and acknowledge that all subsequent owners are subject to its terms. The Co-Grantees can meet with any prospective recipient of the Property to explain the terms of this Easement. The failure of Grantor to perform any act required by this section shall not impair the validity of this Easement or limit its enforceability in any way. In addition, at any time Grantor transfers the Property to a third party, including all subsequent transfers, that party shall pay $100.00 to the Trust to cover administrative costs associated with the transfer, as well as to put the third party recipient on notice of the existence of this Easement. This payment is exempt from transfer fee restrictions of C.R.S. §38-35-127. 17. NOTICES Any communication required under the terms of this Easement shall be in writing and physically delivered or sent by first class mail, postage prepaid, to the following addresses, or to such other address as either Party or the City may designate in the future by written notice to the other. Other communications not required by this Easement may be in the form of email or other electronic communication: To Grantor: Paul E. and Virginia I. Soldner Family Limited Partnership LLLP Stephanie Soldner P.O. Box 90 Aspen, CO 81611 P189 X.a 17 To the Trust: Aspen Valley Land Trust 320 Main Street, Suite 204 Carbondale, CO 81623 Phone: 970-963-8440 Fax: 970-963-8441 To Pitkin County: Pitkin County Attorney Office 530 E. Main Street, Suite 300 Aspen, CO 81611 Phone: 970-920-5193 john.ely@pitkincounty.com 18. RECORDATION Co-Grantees shall record this Easement in the official records of Pitkin County, Colorado and may re-record it at any time as may be required to preserve its rights in this Easement. 19. AMENDMENT If circumstances arise under which an amendment to this Easement would be appropriate to promote the Purposes of the Easement, Grantor and the Co-Grantees may jointly amend this Easement, upon forty-five (45) day’s prior written notice to and with the City County’s prior written approval, which approval shall be required for substantive, not corrective or technical amendments, only. However, the Parties are under no obligation to amend this Easement, and they may decline any amendment in their sole discretion. Any amendment shall be consistent with the Purposes of the Easement, and may not affect the Easement’s perpetual duration. Any amendment shall be in writing, signed by all the Parties, and recorded in the records of the Clerk and Recorder of Pitkin County, Colorado. Corrections to correct factual mistakes or typographical or clerical errors may be made at the discretion of the Co-Grantees, with prior notice to Grantor before recording. No amendment shall be allowed that affects the qualification of this Easement or the status of the Trust and Co-Grantees under any applicable laws, including C.R.S. §§38-30.5- 101 et seq., or IRC §170(h), or § 501(c)(3), or any regulations promulgated thereunder. No amendment shall be permitted that will confer impermissible private benefit to Grantor or to any other individual or entity (see Treas. Reg. 1.170A-14(h)(3)(i)), or that will result in private inurement to a board member, staff or contract employee of either Co-Grantee (see Treas. Reg. 1.501(c)(3)-1(c)(2)). Amendments may be subject to a fee to cover staff time, legal and other costs. 20. SUBORDINATION The Property is not subject to any mortgages or liens at the time of grant of this Easement, and thus no subordination is necessary. No provisions of this Easement shall be construed as impairing the ability of Grantor to use the Property as collateral for subsequent borrowing, provided that any mortgage or lien arising from such a borrowing shall be subordinate to this Easement. 21. GENERAL PROVISIONS P190 X.a 18 21.1. Definitions. For the purposes of this Easement, the following words and phrases are defined as follows: A. Grantor and Co-Grantees. The terms "Grantor" and "Co-Grantees," and any pronouns used in place of those terms, refer to, respectively, Grantor and Grantor’s heirs, personal representatives, executors, administrators, successors and assigns, and the Co-Grantees’ and their successors and assigns; B. Easement. The terms “Easement,” “conservation easement,” “Deed of Conservation Easement,” and “Deed of Conservation Easement in gross” refer to this legal document and to the immediately vested interest in real property defined by Colorado Revised Statutes §§38-30.5-101 et seq.; C. Applicable Laws. The term “applicable laws” refers to all relevant federal, state, and local statutes, ordinances, judicial decisions, executive orders, codes or regulations having the force and effect of law that have bearing on or may control certain uses allowed by the Easement; 21.2. Controlling Law. The interpretation and performance of this Easement shall be governed by the laws of the State of Colorado; 21.3. Liberal Construction. This Easement shall be liberally construed in favor of the grant to effect the Purposes of the Easement and the policy and purpose of C.R.S. §38-30.5-101 et seq. If any provision in this instrument is found to be ambiguous, an interpretation consistent with ensuring continuation of the Purposes of the Easement that would render the provision valid shall be favored over any interpretation that would render it invalid. The common law rules of construction and those disfavoring restrictions on the use of real property and construing restrictions in favor of the free and unrestricted use of real property shall not apply to interpretations of this Easement or to disputes between the Parties concerning the meaning of particular provisions of this Easement; 21.4. Severability. If any provision or application of any provision of this Easement, is found to be invalid, the remainder of the provisions shall be deemed severable and remain in full force and effect; 21.5. Entire Agreement. This instrument sets forth the entire agreement between the Parties with respect to the Easement and supersedes all prior discussions or agreements relating to the Easement; 21.6. No Forfeiture. Nothing contained in this Easement will result in a forfeiture or reversion of Grantor’s title in any respect; 21.7. Joint and Several Obligation. The obligations imposed by this Easement upon Grantor shall be joint and several in the event more than one entity or individual holds an interest in the Property at any given time. If the Property’s ownership, now or in the future, is by a single P191 X.a 19 entity consisting of multiple parties including shareholders, partners, or members, that entity is required to notify its shareholders, partners, or members of the entity’s and its parties’ individual rights and responsibilities, including monetary or other obligations set forth in this Easement; 21.8. Successors. The covenants, terms, conditions, and, restrictions of this Easement shall be binding upon, and inure to the benefit of, the Parties hereto and Grantor’s respective personal representatives, heirs, successors, transferees, and assigns, and the Co-Grantees’ successors, transferees, and assigns, and shall continue as a servitude running in perpetuity with the Property; 21.9. Termination of Rights and Obligations. A Party’s rights and obligations under this Easement terminate upon transfer of the Party’s interest in the Easement or the Property, except that liability for acts or omissions under the terms of the Easement occurring prior to transfer shall survive transfer; 21.10. Captions. The captions in this instrument have been inserted solely for convenience of reference and shall have no effect upon construction or interpretation; 21.11. Counterparts. The Parties may execute this instrument in two or more counterparts, which shall, in the aggregate, be signed by all the Parties; each counterpart shall be deemed an original instrument as against any Party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling; 21.12. Merger. Unless the Parties expressly state that they intend a merger of estates or interests to occur, no merger shall be deemed to have occurred under any document executed in the future affecting this Easement, and the Parties specifically agree that C.R.S. Section 38-30.5- 107 shall not apply to cause a merger of Easement into the underlying fee interest of the Property. Nonetheless, if one or both Co-Grantees wish to acquire fee title to the Property or any additional interest in the Property (such as a leasehold), Co-Grantees must first obtain the written approval of City of Aspen. As a condition of such approval, the City may require that one or both of the Co-Grantees first transfer the Easement to the other Co-Grantee or another qualified organization consistent with Section 15 above; 21.13. Authority to Execute. Each Party represents that such Party has full power and authority to execute and deliver this Deed of Conservation Easement; to perform its obligations under this Easement; that the individual(s) executing this Easement on behalf of said Party is fully empowered and legally authorized to do so; and that this Easement constitutes a valid, enforceable, and legally binding obligation of said Party; 21.14. Third Party Beneficiaries and Enforcers. This Easement is entered into by and between Grantor and Co-Grantees, and is solely for the benefit of the public, and Grantor and Co- Grantees as Parties, and the City of Aspen as the sole third party beneficiary, for all purposes set forth in this Easement and their respective successors and assigns. This Easement does not create any rights or responsibilities, including enforcement or beneficial rights in any Parties or third parties beyond Grantor, Co-Grantees, and the City of Aspen as set forth herein. P192 X.a 20 IN WITNESS WHEREOF, Grantor and the Co-Grantees have executed this Deed of Conservation Easement in Gross as of the date first written above. GRANTOR: PAUL E. AND VIRGINIA I. SOLDNER FAMILY LIMITED PARTNERSHIP LLLP, P193 X.a 21 a Colorado limited liability company, By: STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this_____ day of , 2018, by Stephanie Soldner, __________________________, Paul E. and Virginia I. Soldner Family Limited Partnership LLLP, a Colorado limited liability company, as Grantor. WITNESS my hand and official seal. [SEAL] Notary Public My commission expires: CO-GRANTEE: ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation, P194 X.a 22 By: Suzanne Stephens, Executive Director STATE OF COLORADO ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2018, by Suzanne Stephens as Executive Director of ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation. WITNESS my hand and official seal. [SEAL] Notary Public My commission expires: P195 X.a 23 CO-GRANTEE: BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, Colorado, a body corporate and politic By __________________________________ Patti Clapper Chair of the Board of County Commissioners STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) The foregoing document was acknowledged before me this _______ day of ___________, 2018, by Patti Clapper, as Chair of the Board of County Commissioners of Pitkin County, Colorado, a body corporate and politic. WITNESS my hand and official seal. [SEAL] Notary Public My commission expires: Approved as to Form: Manager Approval: _____________________ _________________________ John Ely, Attorney Jon Peacock, County Manager Recommended for Approval: ___________________________________ Dale Will, Acquisition Director, Open Space and Trails P196 X.a 24 EXHIBIT A Legal Description of Property EXHIBIT B P197 X.a 25 Plat for Soldner P198 X.a 26 EXHIBIT C Baseline Documentation Acknowledgment Grantor, Trust and Pitkin County acknowledge that each has read the "Soldner Baseline Documentation Report," dated ________, 2018, and that the report accurately reflects the condition of the Property subject to the Easement as of the date of conveyance of the Easement. GRANTOR: SOLDNER, LLLP a Colorado limited liability partnership, By: CO-GRANTEE: ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation, By: Suzanne Stephens, Executive Director CO-GRANTEE: BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, Colorado, a body corporate and politic By __________________________________ Patti Clapper Chair of the Board of County Commissioners P199 X.a 5/29/2018 Gmail-Budingame Ce'e. `K t(c)# MGmall Lee Mulcahy, artist<leemulcahyphd@gmail.com> Burlingame Wcq A 1 I46r- (5 Julie Kieffer<julie.kieffer@cityofaspen.com> ) 1)TelS-f'lGlut' Mon, May 18, 2015 at 2:47 PM To: "leemulcahyphd@gmail.com"<leemulcahyphd@gmail.com> v Hello, We have concerns that you are not meeting the minimum work requirement to own the property at 53 Forge'Rd.,Aspen. Please provide a copy of your 2014 tax returns including federal,state and all schedules and W2's/1099's by June 2, 2015. If you have any questions, please call or email me. Y�D �CQ Thank you! Y �! INl�ul 2�i ZO�� Julie Kieffer The APCHA office has moved-please note our new address! Qualificatinos Specialist I T 970.920.5216 1 F 970.920.5580 1 www.apcha.org Aspen/Pitkin County Housing Authority 1210 E Hyman St#202 I Aspen,CO 81611 httpsJ/mail.google.com/mail/u/01?ui=2&ik=8f6c2o665c&jsver----dxV Nc9Y02g.en.&cbl=gmail_fe_180516.06_p8&view=pt&msg=14d68c7c2gd68664&as_query=from pttkiry Aspen/Pitkin County Housing Authority (APCHA) yQ 4 City of Aspen/Pitkin County Q A 210 East Hyman Ave., Suite#202 1"1 Aspen, Colorado 81611 Ph: 970.920.5050 * Fax: 970.920.5580 `Sing 0i Website: www.apcha.ore CFinaler October 1. 2015 Put Regular and Certified Mail Lee Mulcahy 0053 Forge Rd Aspen. CO A 1611 RE: 0053 Forge Rd, Aspen, CO Dear Mr. Mulcahy: Previous letters were sent to you regarding breach of your deed restriction and Aspen/Pitkin County Housing Authority's (APCHA's) Affordable Housing Guidelines (Guidelines) for the property located at 0053 Forge Rd, Aspen, Colorado. The Notice of Violation stated: the corner is in breach dor: 1) not elorking fdl time in Pitkin Counrv: 2) not , occtgwing the Properly as your sole place of residence: 3) permitting use of the proper0that is outside of compliance with the Master Deed Restriction: 4) Ailing to meet the residence requiremeni.s•: 5) renting the property without approval by the HOA or APCHA: and 6) not providing APCHA with the information requested As of today's date, you have not provided documentation to show you meet the residency and employment requirement to satisR the first. second and fourth violations listed above. Since you arc out of compliance and since \.on did not request a Board hearing (within the 15 days stated in the Notice of Violation). you must list the property for sale at the maximum sales price of$180,481 based on the value of the land alone because you have not provided APCHA with building cost support documentation to support the actual construction value and maximum sales price of the property. As stated in the Notice of Violation, appreciation has been suspended. Please contact Pam Gabel. APCHA Sales Manager, at 970-920-5054 or Cindy Christensen, Deputy Director, at 970-920-5455 to list the property within 30 days from the date of this letter. Sincerely. Julie Kieffer Qualifications Specialist CC: Pam Gabel. Sales Manager, APCHA Mike Kosdroskv. Executive Director_. APCHA APCHA Board of Directors Tom Smith, Esq., Austin. Peirce R Smith. P.C. 5/29/2018 Gmail-compliance MGmall Lee Mulcahy, artist<leemulcahyphd@gmail.com> compliance Julie Kieffer<julie.kieffer@cityofaspen.com> Thu, Oct 8, 2015 at 1:22 PM To: 'leemulcahyphd@gmail.com"<leemulcahyphd@gmail.com> Article in the paper stated you were out of town, so I am sending this via email as well. Julie Kieffer The APCHA office has moved-please note our new address! Qualificatinos Specialist I T 970.920.5216 1 F 970.920.5580 1 www.apcha.org Aspen/Pitkin County Housing Authority 1 210 E Hyman St#202 Aspen,CO 81611 Mulcahy Final Letter 10 01 15.doc 1443K https://mail.google.com/maiVu/0/?ui=2&ik=8f6c2c665c&jsver---dxV Nc9Y02g.en.&cbl=gmail_fe_180516A6_p8&view=pt&msg=15048e7f35fa2fOf&as_query=from%: 5/29/2018 Gmail-Employee Housing MGmail Lee Mulcahy, artist<leemulcahyphd@gmail.com> Employee Housing Julie Kieffer<julie.kieffer@cityofaspen.com> Wed, Oct 14, 2015 at 4:44 PM To: "leemulcahyphd@gmail.com"<leemulcahyphd@gmail.com> I wanted to follow up on our conversation relating to the employment requirement of 1500 hours per year. I attached the sections from the Guidelines that relate to"employee." I also searched for what the IRS considers as employee and found an interesting article specific to artists. http://www.nolo.com/legal-encyclopedia/when-artists-work-business-versus-hobby-irs-analysis.html f 4, �S Some things you could provide include: (AFC-NA) G C X�1 11 • Records of the sales of your artwork r rr� I e / I • Records of showings in galleries or museums J/Io • / Documentation of Advertising/Marketing your works for sale / • Records of leasing or occupying studio space J j / /j e • Invoices for the purchase of art supplies • Evidence of profit motive • A business plan • Evidence of time and effort • Evidence of art being a source of income that you live on/you depend on income from that profession. Julie Kieffer The APCHA office has moved-please note our new address! Qualificatinos Specialist I T 970.920.5216 1 F 970.920.5580 1 www.apcha.org Aspen/Pitkin County Housing Authority, 1 210 E Hyman St#202 I Aspen,CO 81611 Employee section from guidelines.pdf 182K https://mail.google.comlmail/u/0/?ui=2&ik=8f6c2c665r&jsver--0XV Nc9Y02g.en.&cbl=gmail_fe_180516.06_p8&view=pt&msg=150688700e3bcab3&as_query=from �-tVV) NO RIDING ASPEN IDEAS FESTIVAL The Aspen Institute and Aspen Meadows Campus will be open only to Aspen Ideas Festival attendees lea � June 21 - June 30, 2018 The Aspen Community is welcome on our campus 355 days per year but due to �.- a need for increased security during the �P festival, we are making this change for �r this brief period of time. Please adjust your route accordingly. We appreciate your cooperation tet` `f and look forward to welcoming you back on campus starting July 1st. IMdil dr �yr 4 1J �40A, W $om .—o c ac3a51 F x om [m E o `o mi, Ea g FF c m m c m m m a.m 2m2 m $ E mm E § Z,m g'm rn m ' m V.'m u` V gyy ] E� � � �dH LCJD � ¢ mm �:JSAs m fs BHNEni$Emv Smnmm m�n � Emmm s� ��3� ���_`rm 1O Ij (L t T a m `m as c p N N d r CD mu — J C 7 O 517 HOPKINS AVENUE NEW ASPEN OFFICES NEW BUILDING p.. . . 0 SHORTER10 FEET �'`�-.,ter t. '� '- a • EXISTING BUILDING 10 FEET TALLER _ . . T Cost of Galena Plaza new city offices building Three building plan (Taster's Building. Existing City hall, new Galena Plaza building New Construction Cost: Does not include land $23 million Land Value*: $7 million Total Value: $30 million Cost of 517 Hopkins Street new city offices building Two building plan (Existing City Hall Hopkins St and 517 Hopkins Street) Scrape & Replace finished construction Cost $13.5 million Land Value*: $9.5 million Total Value: $23 million • Pitkin County Assessor Land Value Pitkin County Assessor Web Page 2018 Property Value Summary Property Actual Value Assessed Value Rio Grande Lot 2 LAND 7,000,000 2,030,000 Parking Garage 427 Rio Grande Place IMPROVEMENTS 11,368,400 3,296,840 TOTAL 18,368,400 5,326,840 Properly Actual Value Assessed Value Rio Grande Lot 4 LAND 3,500,000 1,015,000 City Building (includes Tasters) IMPROVEMENTS 1,657,800 480,760 455 Rio Grande Place TOTAL 5,157,800 1,495,760 Property Actual Value Assessed Value Rio Grande Lot LAND 0 0 Tasters PossessoryInterest IMPROVEMENTS 14,000 4,060 455 Rio Grande Place TOTAL 14,000 4,060 Property Actual Value Assessed Value Rio Grande Lot 1 LAND 4,000,000 1,160,000 Rio Grande Park includes: IMPROVEMENTS 0 0 Theatre in Park John Denver Park TOTAL 4,000,000 1,160,000 Playing& Event Field Recycle center Basketball court 460..470..480..500 Rio Grande Place } Pitkin County Assessor Web Page 2018 Property Value Summary Property Actual Value Assessed Value City Hall LAND 6,000,000 1,740,000 Armory Building 130 S. Galena IMPROVEMENTS 4,831,000 1,400,990 TOTAL 10,831,000 3,140,990 CITY AND TOWNSITE OF ASPEN Block:93 Lot: K AND:-Lot:Thru M CITY HALL Parcel Detail fi1e:///E:/Assessor 517 Hopkins.html Pitkin County Assessor Parcel Detail Information Assessor Property Search I Assessor Subset Query I Assessor Sales Search Clerk& Recorder Reception Search I Treasurer Tax Search Search GIS Map I GIS Help Basic Building Characteristics I Value Summary Parcel Detail Value Detail I Sales Detail I Residential/Commercial Improvement Detail Owner Detail I Land Detail I Photographs Tax Account Parcel Property 2017VMyill MDE-LO Number T e Le01038 273707340003 COMWRES 31.806 Primary Owner Name and Address i 517 EAST HOPKINS ASPEN LLC 2001 N HALSTED #304 CHICAGO, IL 60614 Additional Owner Detail Business Name CITY PLAZA BUILDING Legal Description Subdivision: CITY AND TOWNSITE OF ASPEN Block: 94 Lot: D AND:- Lot: Thru F Location Physical Address: 11517 E HOPKINS AVE ASPEN I of 3 6/25/2018,4:20 PM Parcel Detail file:///E:/Assessor 517 Hopkins.htrnl Subdivision: CITY AND TOWNSITE OF ASPEN Land Acres: 1 0.000 Land Sq Ft: 19,000 2018 Property Value Summary 11 Actual Value I Assessed Value Land: I 9,550,0001 2,747,700 Improvements: ] 1,534,3001 421,4501 Totai--. 11 11,084,3001 3,169,1501 Sale Date: 16/10/2014 Sale Price: 1110,000,000 Additional Sales Detail Basic Building Characteristics Number of Residential 1 Buildings: Number of Comm/Ind 1 Buildings: Residential Building Occurrence 0 Characteristics 1 EMPLOYEE DEED 2,636 RESTRICTED: Total Heated Area: 12,636 Property Class: MULTI-UNITS(4-8) IMPRVMNT 1 Actual Year Built: 11983 Effective Year Built: 11983 Bedrooms: 4 1 Baths: I4 1 Quality of Construction: I AVERAGE Exterior Wall: FACE BRICK Interior Wall: DRYWALL Floor: CARPET 2 of 3 625/2018,4:20 PM Parcel Detail file:///E:/Assessor 517 Hopkins.html Heat Type: JIFORCED AIR Heating Fuel: JIGAS Roof Cover: (BUILT-UP Roof Structure: FLAT Neighborhood: COMM. CORE ASPEN RESIDENTIAL iSuper Nbad: 113011 Commercial/Industrial Building Occurrence 0 Characteristics OFFICE BASEMENT[6,037 FINISHED: I OFFICE SECOND FLOOR: 4,104 MULTI USE SECOND 5,464 FLOOR: Total AE!adj 15,605 Property Class: OFFICES-IMPROVEMENTS Actual Year Built: 1983 Effective Year Built: 1985 Quality of Construction: GOOD-BASE Exterior Wall: I GOOD BASE Interior Wall: GOOD-BASE Neighborhood: 11COA COMMERCIAL "B" Top of Pave Assessor Database Search Options Assessor Home Pave Pitkin County Home Pave The Pitkin County Assessor's.Offices make every effort to collect and maintain accurate data. However, Good Turns Software and the Pitkin County Assessor's Offices are unable to warrant any of the information herein contained. Copyright ©2003 - 2015 Good Turns Software. All Rights Reserved. Database & Web Design by Good Turns Software. 3 of 3 6/25/2018,4:20 PM