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AGENDA
CITY COUNCIL REGULAR MEETING
August 11, 2020
5:00 PM, City Council Chambers
130 S Galena Street, Aspen
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)
Meeting number (access code): 126 391 0048
Meeting password: 81611
Tuesday, August 11, 2020
4:30 pm | (UTC-06:00) Mountain Time (US & Canada) | 5 hrs
+1-720-650-7664,,1263910048## United States Toll (Denver)
+1-469-210-7159,,1263910048## United States Toll (Dallas)
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)
VI.A.Resolution #051, Series of 2020 - Utilities Advanced Metering Infrastructure Project:
contract approval
VI.B.Resolution #056, Series of 2020 - 5304 Grant Agreement for TIA Update
VI.C.Resolution #063, Series of 2020 - Burlingame 3 Modular Supply Agreement with
Guerdon LLC
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VI.D.Resolution #068 of 2020 - Lumberyard Affordable Housing Conceptual Design, DHM
Design Contract Extension
VI.E.A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
SUBMITTING TO THE ELECTORATE OF THE CITY OF ASPEN A CERTAIN
QUESTION AT THE NOVEMBER 3, 2020, GENERAL ELECTION.
VI.F.Draft minutes for July 27th & July 28th
VII.NOTICE OF CALL-UP
VIII.FIRST READING OF ORDINANCES
VIII.A.Ordinance #10, Series 2020 - Amend Chapter 25.28, Water Shortages of the City of
Aspen Municipal Code Ordinance #10.
IX.PUBLIC HEARINGS
X.ACTION ITEMS
X.A.Resolution #067, Series of 2020 - Extension of Temporary Use – Silver Circle Ice
Rink, 433 E. Durant Avenue, CONTINUE PUBLIC HEARING TO AUGUST 25TH
X.B.Isis Theater Building Debt Service
X.C.Resolution #070, Series of 2020 - IGA for Inspection Services
XI.ADJOURNMENT
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MEMORANDUM
TO:Mayor and City Council
FROM:John Krueger, Director of Transportation
Trish Aragon, City Engineer
Phillip Supino, Director of Community Development
THRU:Scott Miller-Public Works Director, Tricia Aragon-City
Engineer, Dianne Foster-Assistant City Manager
MEMO DATE:July 30, 2020
MEETING DATE:August 11, 2020
RE:Approval of 5304 Grant Agreement for TIA Update
REQUEST OF COUNCIL: City Transportation staff is requesting approval of Resolution
Number 056 of 2020, authorizing the City Manager to sign and execute the attached
Federal Transit Administration Section 5304 Grant Subaward Agreement between the
Colorado Department of Transportation and the City of Aspen.
This grant agreement is for the undertaking of a review and update of the City’s
Transportation Impact Analysis (TIA) process for evaluating and mitigating the
transportation impacts of development. The grant award is made up of $40,000.00
(80%) in federal funding with local match funding of $10,000.00 (20%) for a total of
$50,000.
SUMMARY AND BACKGROUND: Aspen’s TIA system, in place since 2013, requires
proposed developments to determine their transportation impacts based on customized
traffic generation formulas. Next, projects must select from a menu of both Transportation
Demand Management (TDM) and Multi-Modal Level of Service (MMLOS) measures to
fully mitigate all trips. TDM and MMLOS measures are also weighted via custom formulas,
developed specifically for the City of Aspen.
When developed, Aspen’s TIA system was unique for a small town, especially in its
customization, using specific traffic count data for various development types, rather
than attempting to modify trip data based on examples in a large city. City staff believe
that, 7 years later, a TIA review and update is needed to:
1. Ensure that Aspen-specific traffic data and TDM/MMLOS data is still accurate:
A key attribute of Aspen’s TIA process is the underpinning of local data used for
both determining and mitigating impact. Rather than use traffic generation data
from a hotel in Denver, for example, Aspen’s TIA uses local data for local project
review. To remain effective, this data should be reviewed and updated on a
regular basis.
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2. Add and remove TDM/MMLOS menu options based on the most current
research: It is also important to ensure that measures of trip mitigation are
current and relevant as policies and technology change. For example, the current
TIA process allows credit for purchasing WE-cycle passes, although the program
is now offered fare free.
3. Ensure validity of triggers, reporting and other policies: An example of this work
area is the need to ensure that certain triggers for TIA requirement (square
footage, geographic location, etc.) make sense seven years after initial
implementation.
4. Ensure coordination between the new, integrated parking and mobility
regulations in the Land Use Code and the TIA. The new regulations, adopted in
2017, require that all new development and significant renovations provide
parking and mobility improvements. These regulations ensure that development
activities contribute both parking and mobility improvements to the City’s
transportation and pedestrian networks. When the regulations were adopted,
Nelson/Nygaard, the consultants who advised City staff in their development,
strongly recommended that the TIA be updated to ensure the effectiveness of
this integrated system. This grant will close the loop on that process.
DISCUSSION: With the above in mind, staff has been seeking grant opportunities to
offset project costs and was recently awarded a Federal Transportation Administration
5304 planning grant.
The Colorado Department of Transportation (CDOT) administers these grants for the
purpose of funding planning and research projects. Transportation staff will manage this
grant.
City Council approval of the Resolution Number 056 of 2020 will authorize the City
Manager to execute the attached grant subaward agreement between the City of Aspen
and CDOT for the review and update of the Transportation Impact Analysis process.
Upon execution of this grant agreement, staff will issue a Request for Proposals to find
a vendor with the necessary skills and experience and return to Council for contract
approval.
The grant application for this project was submitted prior to the current COVID-19
situation. Staff believes that the project should move forward during this period of cost
reductions for a number of reasons:
Input from the development community indicates the need for updating the TIA.
Development will move forward in Aspen at some level and must continue to be
reviewed.
The parking impacts of development need to be folded into the TIA process.
The timely completion of grant-funded projects is a determining factor when
applying for future grants.
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FINANCIAL IMPACTS:
5304 GRANT AGREEMENT FUNDING:
Grant Agreement Funding Federal
(80%)
Local Match
(20%)
Total
5304 Grant Agreement
Amount
$40,000.00 $10,000.00 $50,000.00.
The Transportation Department will manage this grant, funding the work and receiving
reimbursement for the Federal portion of the project. The reimbursement of the Federal
portion ($40,000) will be provided by the grantor-CDOT. The matching funding
($10,000) for this project will be provided by the Transportation Fund. The net impact to
the Transportation fund after reimbursement will be $10,000 for 2020. Funding for the
project is not currently in the Transportation 2020 budget and may require a
supplemental request.
This project has not gone out to bid yet for consultant services. This will be the next step
if the grant agreement is approved. Council will have an opportunity to review the
project costs when the consultant contract comes back for approval.
Estimated Project Costs:
The current estimated cost of the project is $80,000. This is an interdepartmental
project. The additional costs of the project over and above the grant agreement will
come from contributions from the Engineering, Com Dev and Parking departments.
These contributions will come from either departmental savings or existing 2020
departmental budget authority. The estimated project funding will be:
5304 Grant Funding $40,000
Transportation $10,000
Engineering $10,000
Com Dev $10,000
Parking $10,000
Estimated Project Funding $80,000
Net Cost after Grant Reimbursement = $40,000 (from existing 2020 budget)*
ENVIRONMENTAL IMPACTS: The TIA process, by requiring development to mitigate
its transportation impacts, is a key component of meeting City GHG goals.
ALTERNATIVES: Council could reject the attached resolution and eliminate the TIA
project and associated grant funding from staff’s work plan.
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RECOMMENDATIONS: Staff recommends that City Council approve Resolution
Number 056 of 2020 authorizing the City Manager to execute the Grant Subaward
Agreement between the State of Colorado and the City of Aspen for the review and
update of the TIA.
CITY MANAGER COMMENTS:
______________________________________________________________________
______________________________________________________________________
ATTACHMENTS:
Attachment A:Resolution #056
Attachment B:Contract Documents
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RESOLUTION NO. 056
Series of 2020
A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING
A SECTION 5304 PLANNING GRANT SUBAWARD 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; and
WHEREAS the 5304 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, COLORADO:
That the City Council of the City of Aspen hereby approves the 5304 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 11th day
of August 2020.
_________________________
Torre, Mayor
I, Nicole Henning, 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.
______________________
Nicole Henning, City Clerk
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STATE OF COLORADO SUBAWARD AGREEMENT
COVER PAGE
State Agency
Department of Transportation
Agreement Number / PO Number
20-HTR-ZL-03198 / 491002159
Subrecipient
CITY OF ASPEN
Agreement Performance Beginning Date
The Effective Date
Initial Agreement Expiration Date
September 30, 2022 Subaward Agreement Amount
Federal Funds
Maximum Amount (80%)
Local Funds
Local Match Amount (20%)
Agreement Total
$40,000.00
$10,000.00
$50,000.00
Fund Expenditure End Date
September 30, 2022
Agreement Authority
Authority to enter into this Agreement exists in
CRS §§43-1-106, 43-1-110, 43-1-117.5, 43-1-701,
43-1-702 and 43-2-101(4)(c), appropriated and
otherwise made available pursuant to the FAST
ACT, MAP-21, SAFETEA_LU, 23 USC §104 and
23 USC §149.
Agreement Purpose
In accordance with 49 USC §5304, the purpose of this Grant is to provide funding to support public
transportation planning in rural and small urban areas. The work to be completed under this Grant by the
Grantee is more specifically described in Exhibit A.
Exhibits and Order of Precedence
The following Exhibits and attachments are included with this Agreement:
1. Exhibit A – Statement of Work and Budget.
2. Exhibit B – Sample Option Letter.
3. Exhibit C – Federal Provisions.
4. Exhibit D – Required Federal Contract/Agreement Clauses.
5. Exhibit E – Verification of Payment.
In the event of a conflict or inconsistency between this Agreement and any Exhibit or attachment, such
conflict or inconsistency shall be resolved by reference to the documents i n the following order of priority:
1. Exhibit C – Federal Provisions.
2. Exhibit D – Required Federal Contract/Agreement Clauses.
3. Colorado Special Provisions in §17 of the main body of this Agreement.
4. The provisions of the other sections of the main body of this Agreement.
5. Exhibit A – Statement of Work and Budget.
6. Executed Option Letters (if any).
Principal Representatives
For the State:
Audrey Dakan
Division of Transit and Rail
Colorado Dept. of Transportation
2829 W. Howard Place
Denver, CO 80204
audrey.dakan@state.co.us
For Subrecipient:
Lynn Rumbaugh
CITY OF ASPEN
130 SOUTH GALENA STREET
ASPEN, CO 81611-1902
lynn.rumbaugh@cityofaspen.com
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SIGNATURE PAGE
THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT
Each person signing this Agreement represents and warrants that the signer is duly authorized to execute this
Agreement and to bind the Party authorizing such signature.
SUBRECIPIENT
CITY OF ASPEN
__________________________________________
__________________________________________
By: Print Name of Authorized Individual
Date: _________________________
STATE OF COLORADO
Jared S. Polis, Governor
Department of Transportation
Shoshana M. Lew, Executive Director
___________________
By:_______________________________________
David Krutsinger, Director
Division of Transit and Rail
Date: _________________________
2nd State or Subrecipient Signature if needed
__________________________________________
__________________________________________
By: Print Name of Authorized Individual
Date: _________________________
LEGAL REVIEW
Philip J. Weiser, Attorney General
__________________________________________
By: Assistant Attorney General
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:_____________________
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TABLE OF CONTENTS
1. PARTIES................................................................................................................................................. 3
2. TERM AND EFFECTIVE DATE .......................................................................................................... 3
3. DEFINITIONS ........................................................................................................................................ 4
4. STATEMENT OF WORK AND BUDGET ........................................................................................... 6
5. PAYMENTS TO SUBRECIPIENT ........................................................................................................ 6
6. REPORTING - NOTIFICATION ........................................................................................................... 8
7. SUBRECIPIENT RECORDS ................................................................................................................. 9
8. CONFIDENTIAL INFORMATION - STATE RECORDS .................................................................... 9
9. CONFLICTS OF INTEREST ............................................................................................................... 10
10. INSURANCE ........................................................................................................................................ 11
11. BREACH OF AGREEMENT ............................................................................................................... 12
12. REMEDIES ........................................................................................................................................... 12
13. DISPUTE RESOLUTION .................................................................................................................... 14
14. NOTICES and REPRESENTATIVES .................................................................................................. 14
15. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION ...................................................... 14
16. GENERAL PROVISIONS .................................................................................................................... 15
17. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3) ..................................... 17
1. PARTIES
This Agreement is entered into by and between Subrecipient named on the Cover Page for this Agreement (the
“Subrecipient”), and the STATE OF COLORADO acting by and through the State agency named on the Cover
Page for this Agreement (the “State”). Subrecipient 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 the Grant Funds shall be
expended by the Fund Expenditure End Date shown on the Cover Page for this Agreement. The State shall
not be bound by any provision of this Agreement before the Effective Date, and shall have no obligation to
pay Subrecipient for any Work performed or expense incurred before the Effective Date, except as described
in §5.D, or after the Fund Expenditure End Date.
B. Initial Term
The Parties’ respective performances under this Agreement shall commence on the Agreement Performance
Beginning Date shown on the Cover Page for this Agreement and shall terminate on the Initial Agreement
Expiration Date shown on the Cover Page for this Agreement (the “Initial Term”) unless sooner terminated
or further extended in accordance with the terms of this Agreement.
C. Extension Terms - State’s Option
The State, at its discretion, shall have the option to extend the performance under this Agreement beyond the
Initial Term for a period, or for successive periods, of one year or less at the same rates and under the same
terms specified in this Agreement (each such period an “Extension Term”). In order to exercise this option,
the State shall provide written notice to Subrecipient in a form substantially equivalent to the Sample Option
Letter attached to this Agreement.
D. End of Term Extension
If this Agreement approaches the end of its Initial Term, or any Extension Term then in place, the State, at
its discretion, upon written notice to Subrecipient in a form substantially equivalent to the Sample Option
Letter attached to this Agreement, may unilaterally extend such Initial Term or Extension Term for a period
not to exceed two months (an “End of Term Extension”), regardless of whether additional Extension Terms
are available or not. The provisions of this Agreement in effect when such notice is given shall remain in
effect during the End of Term Extension. The End of Term Extension shall automatically terminate upon
execution of a replacement Agreement or modification extending the total term of this Agreement.
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E. 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. A determination that this
Agreement should be terminated in the public interest shall not be equivalent to a State right to terminate for
convenience. This subsection shall not apply to a termination of this Agreement by the State for Breach of
Agreement by Subrecipient, which shall be governed by §12.A.i.
i. Method and Content
The State shall notify Subrecipient of such termination in accordance with §14. The notice shall specify
the effective date of the termination and whether it affects all or a portion of this Agreement, and shall
include, to the extent practicable, the public interest justification for the termination.
ii. Obligations and Rights
Upon receipt of a termination notice for termination in the public interest, Subrecipient shall be subject
to the rights and obligations set forth in §12.A.i.a.
iii. Payments
If the State terminates this Agreement in the public interest, the State shall pay Subrecipient 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 Subrecipient for a portion of actual out-of-pocket expenses, not otherwise
reimbursed under this Agreement, incurred by Subrecipient which are directly attributable to the
uncompleted portion of Subrecipient’s obligations, provided that the sum of any and all reimbursement
shall not exceed the Subaward Maximum Amount payable to Subrecipient hereunder.
F. Subrecipient’s Termination Under Federal Requirements
Subrecipient may request termination of this Agreement by sending notice to the State, or to the Federal
Awarding Agency with a copy to the State, which includes the reasons for the termination and the effective
date of the termination. If this Agreement is terminated in this manner, then Subrecipient shall return any
advanced payments made for work that will not be performed prior to the effective date of the termination.
3. DEFINITIONS
The following terms shall be construed and interpreted as follows:
A. “Agreement” means this subaward agreement, including all attached Exhibits, all documents incorporated
by reference, all referenced statutes, rules and cited authorities, and any future modifications thereto.
B. “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.
C. “Breach of Agreement” means 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. The institution of proceedings under
any bankruptcy, insolvency, reorganization or similar law, by or against Subrecipient, or the appointment of
a receiver or similar officer for Subrecipient or any of its property, which is not vacated or fully stayed within
30 days after the institution of such proceeding, shall also constitute a breach. If Subrecipient is debarred or
suspended under §24-109-105, C.R.S., at any time during the term of this Agreement, then such debarment
or suspension shall constitute a breach.
D. “Budget” means the budget for the Work described in Exhibit A.
E. “Business Day” means any day other than Saturday, Sunday, or a legal holiday as listed in §24-11-101(1),
C.R.S.
F. “CORA” means the Colorado Open Records Act, §§24 -72-200.1, et. seq., C.R.S.
G. “Deliverable” means the outcome to be achieved or output to be provided, in the form of a tangible or
intangible Good or Service that is produced as a result of Subrecipient’s Work that is intended to be delivered
by Subrecipient.
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H. “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 Page for this Agreement.
I. “End of Term Extension” means the time period defined in §2.D.
J. “Exhibits” means the exhibits and attachments included with this Agreement as shown on the Cover Page
for this Agreement.
K. “Extension Term” means the time period defined in §2.C.
L. “Federal Award” means an award of Federal financial assistance or a cost-reimbursement contract, under
the Federal Acquisition Regulations or by a formula or block grant, by a Federal Awarding Agency to the
Recipient. “Federal Award” also means an agreement setting forth the te rms and conditions of the Federal
Award. The term does not include payments to a Subrecipient or payments to an individual that is a
beneficiary of a Federal program.
M. “Federal Awarding Agency” means a Federal agency providing a Federal Award to a Recipi ent. Federal
Transit Administration (FTA) is the Federal Awarding Agency for the Federal Award which is the subject of
this Agreement.
N. “FTA” means Federal Transit Administration.
O. “Goods” means any movable material acquired, produced, or delivered by Subrecipient as set forth in this
Agreement and shall include any movable material acquired, produced, or delivered by Subrecipient in
connection with the Services.
P. “Grant Funds” means the funds that have been appropriated, designated, encumbered, or ot herwise made
available for payment by the State under this Agreement.
Q. “Incident” means any accidental or deliberate event that results in or constitutes an imminent threat of the
unauthorized access, loss, disclosure, modification, disruption, or destruction of any communications or
information resources of the State, which are included as part of the Work, as described in §§24 -37.5-401,
et. seq., C.R.S. Incidents include, without limitation (i) successful attempts to gain unauthorized access to a
State system or State Records regardless of where such information is located; (ii) unwanted disruption or
denial of service; (iii) the unauthorized use of a State system for the processing or storage of data; or (iv)
changes to State system hardware, firmware, or software characteristics without the State’s knowledge,
instruction, or consent.
R. “Initial Term” means the time period defined in §2.B.
S. “Master Agreement” means the FTA Master Agreement document incorporated by reference and made part
of FTA’s standard terms and conditions governing the administration of a project supported with federal
assistance awarded by FTA.
T. “Matching Funds” (Local Funds, or Local Match) means the funds provided by Subrecipient as a match
required to receive the Grant Funds and includes in-kind contribution.
U. “Party” means the State or Subrecipient, and “Parties” means both the State and Subrecipient.
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 . PII includes,
but is not limited to, all information defined as personally identifiable information in §§24-72-501 and 24-
73-101, C.R.S.
W. “Recipient” means the State agency shown on the Signature and Cover Page s of this Agreement, for the
purposes of this Federal Award.
X. “Services” means the services to be perfor med by Subrecipient as set forth in this Agreement and shall
include any services to be rendered by Subrecipient 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. State Confidential Information shall not include information or data concerning
individuals that is not deemed confidential but nevertheless belongs to the State, which has been
communicated, furnished, or disclosed by the State to Subrecipient which (i) is subject to disclosure pursuant
to CORA; (ii) is already known to Subrecipient without restrictions at the time of its disclosure to
Subrecipient; (iii) is or subsequently becomes publicly available without breach of any obligation owed by
Subrecipient to the State; (iv) is disclosed to Subrecipient, without confidentiality obligations, by a third party
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who has the right to disclose such information; or (v) was independently developed without reliance on any
State Confidential Information.
Z. “State Fiscal Rules” means the fiscal rules promulgated by the Colorado State Controller pursuant to §24-
30-202(13)(a), C.R.S.
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, t hen it means the State Fiscal
Year ending in that calendar year.
BB. “State Records” means any and all State data, information, and records regardless of physical form.
CC. “Subaward Maximum Amount” means an amount equal to the total of Grant Funds for this Agreement.
DD. “Subcontractor” means any third party engaged by Subrecipient to aid in performance of the Work.
“Subcontractor” also includes sub -recipients of Grant Funds.
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. For the purposes of
this Agreement, Contractor is a Subrecipient.
FF. “Uniform Guidance” means the Office of Management and Budget Uniform Administrative Requirements,
Cost Principles, and Audit Requirements for Federal Awards, 2 CFR Part 200, commonly known as the
“Super Circular, which supersedes requirements from OMB Circulars A-21, A-87, A-110, A-122, A-89, A-
102, and A-133, and the guidance in Circular A-50 on Single Audit Act follow-up.
GG. “Work” means the Goods delivered and Services performed pursuant to 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, information, 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 elsewhere in this Agreement or in an Exhibit shall be
construed and interpreted as defined in that section.
4. STATEMENT OF WORK AND BUDGET
Subrecipient shall complete the Work as described in this Agreement and in accordance with the provisions of
Exhibit A. The State shall have no liability to compen sate Subrecipient for the delivery of any goods or the
performance of any services that are not specifically set forth in this Agreement.
5. PAYMENTS TO SUBRECIPIENT
A. Subaward Maximum Amount
Payments to Subrecipient are limited to the unpaid, obligated balance of the Grant Funds. The State shall not
pay Subrecipient any amount under this Agreement that exceeds the Subaward Maximum Amount shown on
the Cover Page of this Agreement as “Federal Funds Maximum Amount”.
B. Payment Procedures
i. Invoices and Payment
a. The State shall pay Subrecipient in the amounts and in accordance with the schedule and other
conditions set forth in Exhibit A.
b. Subrecipient 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 Subrecipient 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 Subrecipient 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 this Agreement.
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ii. Interest
Amounts not paid by the State within 45 days of the State’s acceptance of the invoice shall bear interest
on the unpaid balance beginning on the 45th 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. Subrecipient 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 Subrecipient disputes any calculation, determination or amount of any payment, Subrecipient shall
notify the State in writing of its dispute within 30 days following the earlier to occur of Subrecipient’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 Subrecipient 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 Subrecipient beyond the current State Fiscal Year is contingent on the appropriation
and continuing availability of Grant 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 Grant
Funds, the State’s obligation to pay Subrecipient 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 Grant Funds, and the State’s liability for such payments shall be limited to the amount
remaining of such Grant 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.E.
v. Federal Recovery
The close-out of a Federal Award does not affect the right of the Federal Awarding Agency 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 defined below.
C. Matching Funds
Subrecipient shall provide Matching Funds as provided in Exhibit A. Subrecipient 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. Subrecipient’s obligation to pay all or any part of any Matching Funds, whether
direct or contingent, only extends to funds duly and lawfully appropriated for the purposes of this Agreement
by the authorized representatives of Subrecipient and paid into Subrecipient’s treasury or bank account.
Subrecipient represents to the State that the amount designated “Subrecipient’s Matching Funds” in Exhibit
A has been legally appropriated for the purposes of this Agreement by its authorized representatives and paid
into its treasury or bank account. Subrecipient 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 Subrecipient. Subrecipient shall not pay or be liable for any claimed interest, late charges, fees,
taxes or penalties of any nature, except as required by Subrecipient’s laws or policies.
D. Reimbursement of Subrecipient Costs
i. The State shall reimburse Subrecipient for the federal share of properly documented allowable costs
related to the Work after review and approval thereof, subject to the provisions of §5, this Agreement,
and Exhibit A. However, any costs incurred by Subrecipient 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. The State shall pay Subrecipient for costs or expenses incurred or performance by the
Subrecipient prior to the Effective Date, only if (1) the Grant Funds involve federal funding and (2)
federal laws, rules, and regulations applicable to the Work provide for such retroactive payments to the
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Subrecipient. Any such retroactive payments shall comply with State Fiscal Rules and be ma de in
accordance with the provisions of this Agreement.
ii. The State shall reimburse Subrecipient’s allowable costs, not exceeding the Subaward Maximum
Amount shown on the Cover Page of this Agreement and on Exhibit A for all allowable costs described
in this Agreement and shown in Exhibit A, except that Subrecipient may adjust the amounts between
each line item of Exhibit A without formal modification to this Agreement as long as the Subrecipient
provides notice to the State of the change, the change does not modify the Subaward Maximum Amount
or the Subaward Maximum Amount for any federal fiscal year or State Fiscal Year, and the change does
not modify any requirements of the Work.
iii. The State shall only reimburse allowable costs described in this Agreement and shown in the Budget if
those costs are:
a. Reasonable and necessary to accomplish the Work and for the Goods and Services provided; and
b. Equal to the actual net cost to Subrecipient (i.e. the price paid minus any items of value received by
Subrecipient that reduce the cost actually incurred).
iv. Subrecipient’s costs for Work performed after the Fund Expenditure End Date shown on the Cover Page
for this Agreement, or after any phase performance period end date for a respective phase of the W ork,
shall not be reimbursable. Subrecipient shall initiate any payment request by submitting invoices to the
State in the form and manner set forth and approved by the State .
E. Close-Out
Subrecipient shall close out this Award within 45 days after the Fund Expenditure End Date shown on the
Cover Page for this Agreement. To complete close-out, Subrecipient shall submit to the State all Deliverables
(including documentation) as defined in this Agreement and Subrecipient’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 the Federal Awarding Agency has not closed this Federal
Award within one year and 90 days after the Fund Expenditure End Date shown on the Cover Page for this
Agreement due to Subrecipient’s failure to submit required documentation, then Subrecipient may be
prohibited from applying for new Federal Awards through the State until such documentation is submitted
and accepted.
6. REPORTING - NOTIFICATION
A. Quarterly Reports
In addition to any reports required pursuant to any other Exhibit, for any Agreement having a term longer
than three months, Subrecipient shall submit, on a quarterly basis, a written repor t specifying progress made
for each specified performance measure and standard in this Agreement. Such progress 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 Business Days following the end of each calendar quarter or at such time as
otherwise specified by the State.
B. Litigation Reporting
If Subrecipient 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 Subrecipient’s ability to perform its obligations under this Agreement, Subrecipient 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 on the Cover Page for this Agreement.
C. Performance and Final Status
Subrecipient shall submit all financial, performance and other reports to the State no later than 45 calendar
days after the end of the Initial Term if no Extension Terms are exercised, or the final Extension Term
exercised by the State, containing an evaluation and review of Subrecipient’s performance and the final status
of Subrecipient’s obligations hereunder.
D. Violations Reporting
Subrecipient shall disclose, in a timely manner, in writing to the State and the Federal Awarding Agency, all
violations of federal or State criminal law involving fraud, bribery, or gratuity violations potentially affecting
the Federal Award. The State or the Federal Awarding Agency may impose any penalties for noncompliance
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allowed under 2 CFR Part 180 and 31 U.S.C. 3321, which may include, without limitation, suspension or
debarment.
7. SUBRECIPIENT RECORDS
A. Maintenance
Subrecipient 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 and the delivery of Services (including, but not
limited to the operation of programs) or Goods hereunder (collectively, the “Subrecipient Records”).
Subrecipient shall maintain such records for a 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 (the “Record Retention Period”). 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 Subrecipient 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 property.
B. Inspection
Subrecipient shall permit the State, the federal government, and any other duly authorized agent of a
governmental agency to audit, inspect, examine, excerpt, copy and transcribe Subrecipient Records during
the Record Retention Period. Subrecipient shall make Subrecipient Records available during normal business
hours at Subrecipient’s office or place of business, or at other mutually agreed upon times or locations, upon
no fewer than two Business Days’ notice from the State, unless the State determines that a shorter period of
notice, or no notice, is necessary to protect the interests of the State.
C. Monitoring
The State, the federal government, and any other duly authorized agent of a governmental agency, in its
discretion, may monitor Subrecipient’s performance of its obligations under this Agreement using procedures
as determined by the State or that governmental entity. Subrecipient shall allow the State to perform all
monitoring required by the Uniform Guidance, based on the State’s risk analysis of Subrecipient and this
Agreement. The State shall have the right, in its sole discretion, to change its monitoring procedures and
requirements at any time during the term of this Agreement. The State shall monitor Subrecipient’s
performance in a manner that does not unduly interfere with Subrecipient’s performance of the Work.
D. Final Audit Report
Subrecipient shall promptly submit to the State a copy of any final audit report of an audit performed on
Subrecipient’s records that relates to or affects this Agreement or the Work, whether the audit is conducted
by Subrecipient or a third party. Additionally, if Subrecipient is required to perform a single audit under 2
CFR 200.501, et. seq., then Subrecipient shall submit a copy of the results of that audit to the State within
the same timelines as the submission to the federal government.
8. CONFIDENTIAL INFORMATION - STATE RECORDS
A. Confidentiality
Subrecipient shall keep confidential, and cause all Subcontractors to keep confidential, all State Records,
unless those State Records are publicly available. Subrecipient shall not, without prior written approval of
the State, use, publish, copy, disclose to any third party, or permit the use by any third party of any State
Records, except as otherwise stated in this Agreement, permitted by law or approved in writing by the State.
Subrecipient shall provide for the security of all State Confidential Information in accordance with all
applicable laws, rules, policies, publications, and guidelines. Subrecipient shall immediately forward any
request or demand for State Records to the State’s Principal Representative identified on the Cover Page of
the Agreement.
B. Other Entity Access and Nondisclosure Agreements
Subrecipient 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.
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Subrecipient shall ensure all such agents, employees, assigns, and Subcontractors sign agreements containing
nondisclosure provisions at least as protective as those in this Agreement, and that the nondisclosure
provisions are in force at all times the agent, employee, assign or Subcontractor has access to any State
Confidential Information. Subrecipient shall provide copies of those signed nondisclosure provisions to the
State upon execution of the nondisclosure provisions if requested by the State.
C. Use, Security, and Retention
Subrecipient shall use, hold and maintain State Confidential Information in compliance with any and all
applicable laws and regulations only in facilities located within the United States, and shall maintain a secure
environment that ensures confidentiality of all State Confidential Information. Subrecipient shall provide the
State with access, subject to Subrecipient’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, Subrecipient shall return State Records provided to
Subrecipient or destroy such State Records and certify to the State that it has done so, as directed by the State.
If Subrecipient is prevented by law or regulation from returning or destroying State Confidential Informat ion,
Subrecipient warrants it will guarantee the confidentiality of, and cease to use, such State Confidential
Information.
D. Incident Notice and Remediation
If Subrecipient becomes aware of any Incident, Subrecipient shall notify the State immediately an d cooperate
with the State regarding recovery, remediation, and the necessity to involve law enforcement, as determined
by the State. Unless Subrecipient can establish that Subrecipient and its agents, employees, and
Subcontractors are not the cause or source of the Incident, Subrecipient shall be responsible for the cost of
notifying each person who may have been impacted by the Incident. After an Incident, Subrecipient 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. The State may adjust or direct modifications to this plan, in its sole
discretion and Subrecipient shall make all modifications as directed by the State. If Subrecipient cannot
produce its analysis and plan within the allotted time, the State, in its sole discretion, may perform such
analysis and produce a remediation plan, and Subrecipient shall reimburse the State for the reasonable costs
thereof. The State may, in its sole discretion and at Subrecipient’s sole expense, require Subrecipient to
engage the services of an independent, qualified, State-approved third party to conduct a security audit.
Subrecipient shall provide the State with the results of such audit and evidence of Subrecipient’s planned
remediation in response to any negative findings.
E. Data Protection and Handling
Subrecipient shall ensure that all State Records and Work Product in the possession of Subrecipient or any
Subcontractors are protected and handled in accordance with the requirements of this Agreement, including
the requirements of any Exhibits hereto, at all times. As used in this section, the protections afforded Work
Product only apply to Work Product that requires confidential treatment.
F. Safeguarding PII
If Subrecipient or any of its Subcontractors will o r may receive PII under this Agreement, Subrecipient shall
provide for the security of such PII, in a manner and form acceptable to the State, including, without
limitation, State non-disclosure requirements, use of appropriate technology, security practic es, computer
access security, data access security, data storage encryption, data transmission encryption, security
inspections, and audits. Subrecipient shall be a “Third -Party Service Provider” as defined in §24-73-
103(1)(i), C.R.S., and shall maintain security procedures and practices consistent with §§24-73-101 et seq.,
C.R.S.
9. CONFLICTS OF INTEREST
A. Actual Conflicts of Interest
Subrecipient 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 Subrecipient under this Agreement. Such a conflict of
interest would arise when a Subrecipient 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.
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B. Apparent Conflicts of Interest
Subrecipient 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, Subrecipient shall refrain
from any practices, activities or relationships that reasonably app ear to be in conflict with the full
performance of Subrecipient’s obligations under this Agreement.
C. Disclosure to the State
If a conflict or the appearance of a conflict arises, or if Subrecipient is uncertain whether a conflict or the
appearance of a conflict has arisen, Subrecipient 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.
D. Subrecipient acknowledges that all State employees are subject to the ethical principles described in §24-18-
105, C.R.S. Subrecipient further acknowledges that State employees may be subject to the requirements of
§24-18-105, C.R.S., with regard to this Agreement. For the avoidance of doubt, an actual or apparent conflict
of interest shall exist if Subrecipient employs or contracts with any State employee, any former State
employee within six months following such employee’s termination of employment with the State, or any
immediate family member of such current or former State employee. Subrecipient shall provide a disclosure
statement as described in §9.C. no later than ten days following entry into a contractual or employment
relationship as described in this section. Failure to timely submit a disclosure statement shall constitute a
Breach of Agreement. Subrecipient may also be subject to such penalties as are allowed by law.
10. INSURANCE
Subrecipient shall obtain and maintain, and ensure that each Subcontractor shall obtain and maintain, 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 as approved by
the State.
A. Workers’ Compensation
Workers’ compensation insurance as required by state statute, and employers’ liability insurance covering
all Subrecipient or Subcontractor employees acting within the course and scope of their employment.
B. General Liability
Commercial general liability insurance covering premises operations, fire damage, independent contractors,
products and completed operations, blanket contractual liability, personal injury, and advertising liability
with minimum limits as follows:
i. $1,000,000 each occurrence;
ii. $1,000,000 general aggregate;
iii. $1,000,000 products and completed operations aggregate; and
iv. $50,000 any 1 fire.
C. 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 .
D. 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 Subrecipient
and Subcontractors.
E. Primacy of Coverage
Coverage required of Subrecipient and each Subcontractor shall be primary over any insurance or self-
insurance program carried by Subrecipient or the State.
F. Cancellation
All 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 Subrecipient and
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Subrecipient shall forward such notice to the State in accordance with §14 within seven days of
Subrecipient’s receipt of such notice.
G. Subrogation Waiver
All insurance policies secured or maintained by Subrecipient 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 Subrecipient or the State, its agencies, institutions, organizations, officers, agents,
employees, and volunteers.
H. Public Entities
If Subrecipient is a "public entity" within the meaning of the Colorado Governmental Immunity Act, §24 -
10-101, et seq., C.R.S. (the “GIA”), Subrecipient shall maintain, in lieu of the liability insurance requirements
stated above, 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. If a Subcontractor is a public entity within
the meaning of the GIA, Subrecipient shall ensure that the Subcontractor maintain at all times during the
terms of this Subrecipient, in lieu of the liability insurance requirements stated above, such liability insurance,
by commercial policy or self-insurance, as is necessary to meet the Subcontractor’s obligations under the
GIA.
I. Certificates
For each insurance plan provided by Subrecipient under this Agreement, Subrecipient shall provide to the
State certificates evidencing Subrecipient’s insurance coverage required in this Agreement prior to the
Effective Date. Subrecipient shall provide to the State certificates evidencing Subcontractor insurance
coverage required under this Agreement prior to the Effective Date, except that, if Subrecipient’s subcontract
is not in effect as of the Effective Date, Subrecipient shall provide to the State certificates showing
Subcontractor insurance coverage required under this Agreement within seven Business Days following
Subrecipient’s execution of the subcontract. No later than 15 days before the expiration date of Subrecipient’s
or any Subcontractor’s coverage, Subrecipient 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,
Subrecipient shall, within seven Business Days following the request by the State, supply to the State
evidence satisfactory to the State of compliance with the provisions of this section.
11. BREACH OF AGREEMENT
In the event of a Breach of Agreement, the aggrieved Party shall give written notice of breach to the other
Party. If the notified Party does not cure the Breach of Agreement, at its sole expense, within 30 days after
the delivery of written notice, the Party may exercise any of the remedies as described in §12 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 this Agreement in order to protect the public interest of the State; or if Subrecipient is
debarred or suspended under §24-109-105, C.R.S., the State, in its discretion, need not provide notice or cure
period and may terminate this Agreement in whole or in part or institute any other remedy in this Agreement
as of the date that the debarment or suspension takes effect.
12. REMEDIES
A. State’s Remedies
If Subrecipient 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 §11, shall have all of the remedies listed in this section 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 of Agreement
In the event of Subrecipient’s uncured breach, the State may terminate this entire Agreement or any part
of this Agreement. Additionally, if Subrecipient fails to comply with any terms of the Federal Award,
then the State may, in its discretion or at the direction of a Federal Awarding Agency, terminate this
entire Agreement or any part of this Agreement. Subrecipient shall continue performance of this
Agreement to the extent not terminated, if any.
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a. Obligations and Rights
To the extent specified in any termination notice, Subrecipient shall not incur further obligations or
render further performance past the effecti ve date of such notice, and shall terminate outstanding
orders and subcontracts with third parties. However, Subrecipient 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, Subrecipient shall assign to the State
all of Subrecipient’s rights, title, and interest in and to such terminated orders or subcontracts. Upon
termination, Subrecipient shall take timely, reasonable and necessary action to protect and preserve
property in the possession of Subrecipient but in which the State has an interest. At the State’s
request, Subrecipient shall return materials owned by the State in Subrecipient’s possession at the
time of any termination. Subrecipient 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 pay Subrecipient for accepted Work
received as of the date of termination. If, after termination by the State, the State agrees that
Subrecipient was not in breach or that Subrecipient’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.E.
c. Damages and Withholding
Notwithstanding any other remedial action by the State, Subrecipient shall remain liable to the State
for any damages sustained by the State in connection with any breach by Subrecipient, and the State
may withhold payment to Subrecipient for the purpose of mitigating the State’s damages until such
time as the exact amount of damages due to the State from Subrecipient is determined. The State
may withhold any amount that may be due Subrecipient 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 Subrecipient’s performance with respect to all or any portion of the Work pending
corrective action as specified by the State without entitling Subrecipient to an adjustment in price
or cost or an adjustment in the performance schedule. Subrecipient 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 Subrecipient after the suspension of performance.
b. Withhold Payment
Withhold payment to Subrecipient until Subrecipient corrects its Work.
c. Deny Payment
Deny payment for Work not performed, or that due to Subrecipient’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 of any of Subrecipient’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, or if the State in its sole discretion determines that any Work is likely to
infringe, a patent, copyright, trademark, trade secret or other intellectual property right, Subrecipient
shall, as approved by the State (i) secure that right to use such Work for the State and Subrecipient;
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(ii) replace the Work with noninfringing Work or modify the Work so that it becomes noninfringing;
or, (iii) remove any infringing Work and refund the amount paid for such Work to the State.
B. Subrecipient’s Remedies
If the State is in breach of any provision of this Agreement and does not cure such breach, Subrecipient,
following the notice and cure period in §11 and the dispute resolution process in §13 shall have all remedies
available at law and equity.
13. 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
Subrecipient for resolution.
B. Resolution of Controversies
If the initial resolution described in §13.A fails to resolve the dispute within 10 Business Days, Subrecipient
shall submit any alleged breach of this Agreement by the State to the Procurement Official of the State
Agency named on the Cover Page of this Agreement as described in §24-101-301(30), C.R.S., for resolution
following the same resolution of controversies process as describe d in §§24-106-109, and 24-109-101.1
through 24-109-505, C.R.S., (collectively, the “Resolution Statutes”), except that if Subrecipient wishes to
challenge any decision rendered by the Procurement Official, Subrecipient’s challenge shall be an appeal to
the executive director of the Department of Personnel and Administration, or their delegate, in the same
manner as described in the Resolution Statutes before Subrecipient pursues any further action. Except as
otherwise stated in this Section, all requirement s of the Resolution Statutes shall apply including, without
limitation, time limitations regardless of whether the Colorado Procurement Code applies to this Agreement .
14. NOTICES and REPRESENTATIVES
Each individual identified as a Principal Representative on the Cover Page for this Agreement 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 (A) by hand with receipt required, (B) by certified or
registered mail to such Party’s principal representative at the address set forth on the Cover Page for this
Agreement or (C) as an email with read receipt requested to the principal representative at the email address, if
any, set forth on the Cover Page for this Agreement. 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 on the Cover Page for this Agreement. Either Party
may change its principal representative or principal representative contact information, or may designate specific
other individuals to receive certain types of notices in addition to or in lieu of a principal representative, by notice
submitted in accordance with this section without a formal amendment to this Agreement. Unless otherwise
provided in this Agreement, notices shall be effective upon delivery of the written notice.
15. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION
A. Work Product
Subrecipient agrees to provide to the State a royalty-free, non-exclusive and irrevocable license to reproduce
publish or otherwise use and to authorize others to use the Work Product described herein, for the Federal
Awarding Agency’s and State’s purposes. All Work Product shall be delivered to the State by Subrecipient
upon completion or termination hereof.
B. Exclusive Property of the State
Except to the extent specifically provided elsewhere in this Agreement, all State Records, 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 information provided by or on behalf of the State to Subrecipient are the exclusive
property of the State (collectively, “State Materials”). Subrecipient shall not use, willingly allow, cause or
permit Work Product or State Materials to be used for any purpose other than the performan ce of
Subrecipient’s obligations in this Agreement without the prior written consent of the State. Upon termination
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of this Agreement for any reason, Subrecipient shall provide all Work Product and State Materials to the
State in a form and manner as directed by the State.
C. Exclusive Property of Subrecipient
Subrecipient retains the exclusive rights, title, and ownership to any and all pre -existing materials owned or
licensed to Subrecipient including, but not limited to, all pre-existing software, licensed products, associated
source code, machine code, text images, audio and/or video, and third -party materials, delivered by
Subrecipient under this Agreement, whether incorporated in a Deliverable or necessary to use a Deliverable
(collectively, “Subrecipient Property”). Subrecipient Property shall be licensed to the State as set forth in this
Agreement or a State approved license agreement: (i) entered into as exhibits to this Agreement, (ii) obtained
by the State from the applicable third-party vendor, or (iii) in the case of open source software, the license
terms set forth in the applicable open source license agreement.
16. GENERAL PROVISIONS
A. Assignment
Subrecipient’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 transfer of Subrecipient’s rights and obligations approved by the
State shall be subject to the provisions of this Agreement.
B. Subcontracts
Subrecipient shall not enter into any subaward or subcontract in connection with its obligations under this
Agreement without the prior, written approval of the State. Subrecipient shall submit to the State a copy of
each such subaward or subcontract upon request by the State. All subawards and subcontracts entered into
by Subrecipient 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. If the entity with whom Subrecipient enters into a subcontract or
subaward would also be considered a Subrecipient, then the subcontract or subaward entered into by
Subrecipient shall also contain provisions permitting both Subrecipient and the State to perform all
monitoring of that Subcontractor in accordance with the Uniform Guidance.
C. Binding Effect
Except as otherwise provided in §16.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 Agreement to sections (whether spelled out or
using the § symbol), subsections, exhibits or other attachments, are references to sections, subsections,
exhibits or other attachments contained herein or incorporated as a part hereof, unless otherwise noted.
F. Counterparts
This Agreement may be executed in multiple, identical, original counterparts, each of which shall be 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. Digital Signatures
If any signatory signs this Agreement using a digital signature in accordance with the Colorado State
Controller Contract, Grant and Purchase Order Policies regarding the use of digital signatures issued under
the State Fiscal Rules, then any agreement or consent to use digital signatures within the electronic system
through which that signatory signed shall be incorporated into this Agreement by reference.
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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, prop erly executed and approved in accordance with
applicable Colorado State law and State Fiscal Rules. Modifications permitted under this Agreement, other
than Agreement amendments, shall conform to the policies issued 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. External Terms and Conditions
Notwithstanding anything to the contrary herein, the State shall not be subject to any provision included in
any terms, conditions, or agreements appearing on Subrecipient’s or a Subcontractor’s website or any
provision incorporated into any click-through or online agreements related to the Work unless that provision
is specifically referenced in this Agreement.
L. Severability
The invalidity or unenforceability of any provision 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 accordance with the intent
of this Agreement.
M. Survival of Certain Agreement Terms
Any provision of this Agreement that imposes an obligation on a Party after termination or expiration of this
Agreement shall survive the termination or expiration of this Agreement 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 Subrecipient. Subrecipient shall be solely
responsible for any exemptions from the collection of excise, sales or use taxes that Subrecipient may wish
to have in place in connection with this Agreement.
O. Third Party Beneficiaries
Except for the Parties’ respective successors and assigns described in §16.A, 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 this Agreement, and do not
create any rights for such third parties.
P. 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.
Q. CORA Disclosure
To the extent not prohibited by federal law, this Agreement and the performance measures and standards
required under §24-106-107, C.R.S., if any, are subject to public release through the CORA.
R. Standard and Manner of Performance
Subrecipient shall perform its obligations under this Agreement in accordance with the highest standards of
care, skill and diligence in Subrecipient’s industry, trade, or profession.
S. Licenses, Permits, and Other Authorizations
i. Subrecipient 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
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Subcontractor, all license, certifications, permits and other authorizations required to perform their
obligations in relation to this Agreement.
ii. Subrecipient, if a foreign corporation or other foreign entity transacting business in the State of Colorado,
shall obtain prior to the Effective Date and maintain at all times during the term of this Agreement, at its
sole expense, a certificate of authority to transact business in the State of Colorado and designate a
registered agent in Colorado to accept service of process.
T. Federal Provisions
Subrecipient shall comply with all applicable requirements of Exhibits C and D at all times during the term
of this Agreement.
17. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3)
These Special Provisions apply to all agreements except where noted in italics.
A. STATUTORY 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.
If this Agreement is for a Major Information Technology Project, as defined in §24 -37.5-102(2.6), C.R.S.,
then this Agreement shall not be valid until it has been approved by the State’s Chief Information Officer 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 f unds for
that purpose being appropriated, budgeted, and otherwise made available .
C. GOVERNMENTAL IMMUNITY.
Liability for claims for injuries to persons or property arising from the negligence of the State, its
departments, boards, commissions committees, bureaus, offices, employees and officials shall be controlled
and limited by the provisions of the Colorado Governmental Immunity Act, §24 -10-101, et seq., C.R.S.; 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. 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, contained in these statutes.
D. INDEPENDENT CONTRACTOR.
Subrecipient shall perform its duties hereunder as an independent contractor and not as an employee. Neither
Subrecipient nor any agent or employee of Subrecipient shall be deemed to be an agent or employee of the
State. Subrecipient shall not have authorization, express or implied, to bind the State to any agreement,
liability or understanding, except as expressly set forth herein. Subrecipient 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 Subrecipient or any of its agents or
employees. Subrecipient shall pay when due all applicable employment taxes and income taxes and
local head taxes incurred pursuant to this Agreement. Subrecipient shall (i) provide and keep in force
workers' compensation and unemployment compensation insurance in the amounts required by law,
(ii) provide proof thereof when requested by the State, an d (iii) be solely responsible for its acts and
those of its employees and agents.
E. COMPLIANCE WITH LAW.
Subrecipient shall 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, JURISDICTION, AND VENUE.
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. All suits or actions related to this
Agreement shall be filed and proceedings held in the State of Col orado and exclusive venue shall be in the
City and County of Denver.
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G. PROHIBITED TERMS.
Any term included in this Agreement that requires the State to indemnify or hold Subrecipient harmless;
requires the State to agree to binding arbitration; limits Subrecipient’s liability for damages resulting from
death, bodily injury, or damage to tangible property; or that conflicts with this provision in any way shall be
void ab initio. Nothing in this Agreement shall be construed as a waiver of any provision of §24-106-109,
C.R.S.
H. SOFTWARE PIRACY PROHIBITION.
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.
Subrecipient hereby certifies and warrants that, during the term of this Agreement and any extensions,
Subrecipient has and shall maintain in place appropriate systems and controls to prevent such improper use
of public funds. If the State determines that Subrecipient 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 inter est
whatsoever in the service or property described in this Agreement. Subrecipient has no interest and shall not
acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of
Subrecipient’s services and Subrecipient shall not employ any person having such known interests.
J. VENDOR OFFSET AND ERRONEOUS PAYMENTS. §§24-30-202(1) and 24-30-202.4, C.R.S.
[Not applicable to intergovernmental agreements] Subject to §24-30-202.4(3.5), C.R.S., the State Controller
may withhold payment under the State’s vendor offset intercept system for debts owed to State agencies for:
(i) unpaid child support debts or child support arrearages; (ii) unpaid balances of tax, accrued interest, or
other charges specified in §§39-21-101, et seq., C.R.S.; (iii) unpaid loans due to the Student Loan Division
of the Department of Higher Education; (iv) amounts required to be paid to the Unemployment Compensation
Fund; and (v) other unpaid debts owing to the State as a result of final agency determination or judicial action.
The State may also recover, at the State’s discretion, payments made to Subrecipient in error for any reason,
including, but not limited to, overpayments or improper payments, and unexpended or excess funds received
by Subrecipient by deduction from subsequent payments under this Agreement, deduction from any payment
due under any other contracts, grants or agreements between the State and Subrecipient, or by any other
appropriate method for collecting debts owed to the State.
K. PUBLIC CONTRACTS FOR SERVICES. §§8-17.5-101, et seq., C.R.S.
[Not applicable to agreements relating to the offer, issuance, or sale of securities, investment advis ory
services or fund management services, sponsored projects, intergovernmental agreements, or information
technology services or products and services] Subrecipient certifies, warrants, and agrees that it does not
knowingly employ or contract with an illegal alien who will perform work under this Agreement and will
confirm the employment eligibility of all employees who are newly hired for employment in the United States
to perform work under this Agreement, through participation in the E-Verify Program or the State verification
program established pursuant to §8-17.5-102(5)(c), C.R.S., Subrecipient shall not knowingly employ or
contract with an illegal alien to perform work under this Agreement or enter into a contract with a
Subcontractor that fails to certify to Subrecipient that the Subcontractor shall not knowingly employ or
contract with an illegal alien to perform work under this Agreement. Subrecipient (i) shall not use E-Verify
Program or the program procedures of the Colorado Department of Labor an d Employment (“Department
Program”) to undertake pre-employment screening of job applicants while this Agreement is being
performed, (ii) shall notify the Subcontractor and the contracting State agency or institution of higher
education within three days if Subrecipient has actual knowledge that a Subcontractor is employing or
contracting with an illegal alien for work under this Agreement, (iii) shall terminate the subcontract if a
Subcontractor does not stop employing or contracting with the illegal alien within three days of receiving the
notice, and (iv) shall comply with reasonable requests made in the course of an investigation, undertaken
pursuant to §8-17.5-102(5), C.R.S., by the Colorado Department of Labor and Employment. If Subrecipient
participates in the Department program, Subrecipient shall deliver to the contracting State agency, Institution
of Higher Education or political subdivision, a written, notarized affirmation, affirming that Subrecipient has
examined the legal work status of such employee, and shall comply with all of the other requirements of the
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Department program. If Subrecipient fails to comply with any requirement of this provision or §§8-17.5-101,
et seq., C.R.S., the contracting State agency, institution of higher education or political subdivision may
terminate this Agreement for breach and, if so terminated, Subrecipient shall be liable for damages.
L. PUBLIC CONTRACTS WITH NATURAL PERSONS. §§24-76.5-101, et seq., C.R.S.
Subrecipient, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty
of perjury that Subrecipient (i) is a citizen or otherwise lawfully present in the United States pursuant to
federal law, (ii) shall comply with the provisions of §§24 -76.5-101, et seq., C.R.S., and (iii) has produced
one form of identification required by §24-76.5-103, C.R.S., prior to the Effective Date of this Agreement.
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EXHIBIT A, STATEMENT OF WORK AND BUDGET
Project Description* 2019-5304: Transportation Impact Analysis Review
Federal Awarding Agency Federal Transit Administration (FTA)
Federal Regional Contact Cindy Terwilliger
Federal Award Date To Be Determined
Project End Date September 30, 2022
FAIN To Be Determined CFDA # 20.505
CFDA Title Statewide and Non-Metropolitan Planning and Research Program
Subrecipient City of Aspen DUNS # 076460104
Contact Name Lynn Rumbaugh Vendor # 2000009
Address 130 S. Galena Street
Aspen, CO 81611-3115
Phone (970) 980-5038
Email lynn.rumbaugh@cityofaspen.com Indirect Rate N/A
WBS** 19-04-2026.ASPN.441 ALI 44.24.00
Total Project Budget $50,000.00
Federal FTA-5304 Funds (at 80% or less) $40,000.00
Local Funds (at 20% or more) $10,000.00
Total Project Amount Encumbered via this Subaward Agreement $50,000.00
*This is a research and development project.
**The WBS numbers may be replaced without changing the amount of the subaward at CDOT’s discretion.
A. Project Description
City of Aspen shall use 2019 FTA-5304 Funds, along with Local Funds, to complete the Transportation Impact
Analysis Review project. The project will support the goals of the Statewide Transit Plan.
City of Aspen will retain a qualified firm (vendor) to complete a review of the existing Transportation Impact
Analysis (TIA) process, to include an existing conditions and peer review, recommendations for improving the TIA
process, and development of TIA tools (in Excel) and public -facing materials. The project deliverable will be a final
report including a summary review of existing TIA process (existing conditions, customer feedback, peer review,
validity of assumptions and mitigation options), recommendations for updates, and updated public -facing materials
(TIA guidebook and web -based FAQs).
B. Performance Standards
1. Project Milestones
Milestone Description Original Estimated Completion Date
Issue RFP for Consultant July 1, 2020
Award Consultant Contract September 30, 2020
Issue Notice to Proceed to Consultant October 14, 2020
Submit Initial Reimbursement Request in COTRAMS February 6, 2021
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2. Performance will be reviewed throughout the duration of this Subaward Agreement. City of Aspen shall report
to the CDOT Project Manager whenever one or more of the following occurs:
a. Budget or schedule changes;
b. Scheduled milestone or completion dates are not met;
c. Identification of problem areas and how the p roblems will be resolved; and/or
d. Expected impacts and the efforts to recover from delays.
3. City of Aspen must comply and submit all reimbursements and relevant project documents substantiating
project completion, as a condition of project closeout.
C. Project Budget
1. The Total Project Budget is $50,000.00. CDOT will pay no more than 80% of the eligible, actual project costs,
up to the maximum amount of $40,000.00. CDOT will retain any remaining balance of the federal share of
FTA-5304 Funds. City of Aspen shall be solely responsible for all costs incurred in the project in excess of the
amount paid by CDOT from Federal Funds for the federal share of eligible, actual costs. For CDOT accounting
purposes, the Federal Funds of $40,000.00 (80%) and matching Local Funds of $10,000.00 (20%), will be
encumbered for this Subaward Agreement.
2. No refund or reduction of the amount of City of Aspen’s share to be provided will be allowed unless there is at
the same time a refund or reduction of the federal share of a proportionate amount.
3. City of Aspen may use eligible federal funds for the Local Funds share, but those funds cannot be from other
Federal Department of Transportation (DOT) programs. City of Aspen’s share, together with the Federal Funds
share, must be enough to ensure payment of the Total Project Budget.
4. Per the terms of this Subaward Agreement, CDOT shall have no obligation to provide state funds for use on this
project. CDOT will administer Federal Funds for this project under the terms of this Subaward Agreement,
provided that the federal share of FTA funds to be administered by CDOT are made available and remain
available. City of Aspen shall initiate and prosecute to completion all actions necessary to enable City of Aspen
to provide its share of the Total Project Budget at or prior to the time that such funds are needed to meet the
Total Project Budget.
D. Procurement
Procurement will comply with state procurement procedures, the DTR Quick Procurement Guide, as well as FTA’s
requirements and 2 CFR 200.320. In addition to the state requirements outlined below, state and FTA procedures
(where applicable) must be followed and will be outlined prior to purchase.
1. The first step in the procurement process will be to obtain an Independent Cost Estimate (ICE).
2. The second step will be to obtain Procurement Concurrence Request (PCR) approval from the CDOT Project
Manager through COTRAMS.
3. The third step, and prior to entering into a purchasing agreement or contract with the selected vendor, will be
to obtain Purchase Authorization (PA) approval from the CDOT Project Manager through COTRAMS.
Milestone Description (cont.) Original Estimated Completion Date (cont.)
Project Complete November 1, 2021
Submit Project Deliverable(s) to CDOT Project Manager December 1, 2021
Submit Final Reimbursement Request in COTRAMS December 31, 2021
IMPORTANT NOTE: All milestones in this Statement of Work (except for the final reimbursement request)
must be completed no later than the expiration date of this Subaward Agreement: September 30, 2022.
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E. Allowable Costs
City of Aspen shall agree to adhere to the provisions for allowable and unallowable costs cited in the following
regulations: 2 CFR 200.420 through 200.475; FTA C 5010.1E Chapter VI: Financial Management; Master
Agreement, Section 6 “Non-Federal Share;” and 2 CFR 200.102. Other applicable requirements for cost allowability
not cited previously shall also be considered.
F. Reimbursement Eligibility
Requests for reimbursement for eligible project costs will be paid to City of Aspen upon submission of a complete
reimbursement packet in COTRAMS for those eligible costs incurred during the Subaward Agreement effective
dates.
Accepted reimbursement packets will include the following completed documents:
Invoice
Proof of Payment
Independent Cost Estimate (ICE) (with the first reimbursement request)
Procurement Concurrence Request (PCR) (with the first reimbursement request)
Purchase Authorization (PA) (with the first reimbursement request)
Project progress report/statement (with periodic/monthly reimbursement requests)
Final Draft of Project Deliverable(s) (with the last reimbursement request)
City of Aspen must submit the final request for reimbursement within sixty (60) calendar days of September 30,
2022, and submit a Grant Closeout and Liquidation (GCL) Form in COTRAMS within fifteen (15) calendar days of
issuance of the final reimbursement payment.
G. Restrictions on Lobbying
City of Aspen is certifying that it complies with 2 CFR 200.450 by entering into this Subaward Agreement.
H. Special Conditions
1. City of Aspen will comply with all requirements imposed by CDOT on City of Aspen so that the federal award
is used in accordance with federal statutes, regulations, and the terms and conditions of the federal award.
2. City of Aspen must permit CDOT and their auditors to have access to City of Aspen’s records and financial
statements as necessary, with reasonable advance notice.
3. Record retention shall adhere to the requirements outlined in 2 CFR 200.333 and FTA C 5010.1.
4. Except as provided in this Subaward Agreement, City of Aspen shall not be reimbursed for any purchase, issued
purchase order, or leased capital equipment prior to the execution of this Subaward Agreement.
5. City of Aspen cannot request reimbursement for costs on this project from more than one Federal Awarding
Agency or other federal awards (i.e., no duplicate billing).
6. City of Aspen must obtain CDOT approval, in writing, if FTA funds are intended to be used for payment of a
lease or for third-party contracts.
7. City of Aspen agrees to work cooperatively with CDOT to market and/or publicize this project as requested by
CDOT. Such efforts may include ribbon cuttings, news articles, photos, and/or other media to be
attended/responded to/supplied by City of Aspen, as appropriate.
8. City of Aspen shall ensure that it does 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
in accordance with Title VI of the Civil Rights Act of 1964.
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9. City of Aspen shall seek to ensure non-discrimination in its programs and activities by developing and
maintaining a Title VI Program in accordance with the “Requirements for FTA Subrecipients” in CDOT’s Title
VI Program Plan and Federal Transit Administration Circular 4702.1B, “Title VI Requirements and Guidelines
for FTA Recipients.” The Party shall also facilitate FTA’s compliance with Executive Order 12898 and DOT
Order 5610.2(a) by incorporating the principles of environmental justice in planning, project development, and
public outreach in accordance with FTA Circular 4703.1 “Environmental Justice Policy Guidance for Federal
Transit Administration Recipients.”
10. City of Aspen will provide transportation services to persons with disabilities in accordance with Americans
with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq.
11. City of Aspen shall develop and maintain an ADA Program in accordance with 28 CFR Part 35,
Nondiscrimination on the Basis of Disability in State and Local Government Services, FTA Circular 4710.1,
and any additional requirements established by CDOT for FTA subrecipients.
12. City of Aspen shall ensure that it will comply with the Americans with Disabilities Act, Section 504 of the
Rehabilitation Act, FTA guidance, and any other federal, state, and/or local laws, rules and/or regulations. In
any contract utilizing federal funds, land, or other federal aid, City of Aspen shall require its subrecipients
and/or contractors to provide a statement of written assurance that they will comply with Section 504 and not
discriminate on the basis of disability.
13. City of Aspen shall agree to produce and maintain documentation that supports compliance with the Americans
with Disabilities Act to CDOT upon request.
14. City of Aspen shall provide CDOT with an equity analysis if the project involves choosing a site or location o f a
facility in accordance with FTA Circular 4702.1B.
15. City of Aspen shall include nondiscrimination language and the Disadvantaged Business Enterprise (DBE)
assurance in all contracts and solicitations in accordance with DBE regulations, 49 CFR Part 26, an d CDOT’s
DBE program.
16. City of Aspen shall update its Agency Profile in COTRAMS with any alterations to existing construction or any
new construction in accordance with FTA Circular 4710.1.
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EXHIBIT B, SAMPLE OPTION LETTER
State Agency
Department of Transportation
Option Letter Number
Insert the Option Number (e.g. "1" for the first
option)
Subrecipient
Insert Subrecipient's Full Legal Name, including "Inc.",
"LLC", etc...
Original Agreement Number
Insert CMS number or Other Contract Number of
the Original Contract
Subaward Agreement Amount
Federal Funds
Option Agreement Number
Insert CMS number or Other Contract Number of
this Option Maximum Amount (%) $0.00
Local Funds Agreement Performance Beginning Date
The later of the Effective Date or Month, Day,
Year
Local Match Amount (%) $0.00
Agreement Total $0.00 Current Agreement Expiration Date
Month, Day, Year
1. OPTIONS:
A. Option to extend for an Extension Term or End of Term Extension.
2. REQUIRED PROVISIONS:
A. For use with Option 1(A): In accordance with Section(s) 2.B/2.C of the Original Agreement referenced
above, the State hereby exercises its option for an additional term/end of term extension, beginning Insert
start date and ending on the current agreement expiration date shown above, at the rates stated in the
Original Agreement, as amended.
B. For use with Options 1(A): The Subaward Agreement Amount table on the Agreement’s Cover Page
is hereby deleted and replaced with the Current Subaward Agreement Amount table shown above.
3. OPTION EFFECTIVE DATE:
A. The effective date of this Option Letter is upon approval of the State Controller or ____, whichever is
later.
STATE OF COLORADO
Jared S. Polis, Governor
Department of Transportation
Shoshana M. Lew, Executive Director
By: ________________________________________
David Krutsinger, Director,
Division of Transit & Rail
Date: ________________________________
In accordance with §24-30-202, C.R.S., this Option
Letter 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
Option Letter Effective Date: __________________
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EXHIBIT C, FEDERAL PROVISIONS
1. APPLICABILITY OF PRO VISIONS
1.1. The Contract to which these Federal 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 Federal Provisions,
the Special Provisions, the body of the Contract, or any attachments or exhibits incorporated into and
made a part of the Contract, the provisions of these Federal Provisions shall control.
2. DEFINITIONS
2.1. For the purposes of these Federal Provisions, the following terms shall have the meanings ascribed to
them below.
2.1.1. “Award” means an award of Federal financial assistance, and the Contract setting forth the terms
and conditions of that financial assistance, that a non-Federal Entity receives or administers.
2.1.1.1. Awards may be in the form of:
2.1.1.1.1. Grants;
2.1.1.1.2. Contracts;
2.1.1.1.3. 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);
2.1.1.1.4. Loans;
2.1.1.1.5. Loan Guarantees;
2.1.1.1.6. Subsidies;
2.1.1.1.7. Insurance;
2.1.1.1.8. Food commodities;
2.1.1.1.9. Direct appropriations;
2.1.1.1.10. Assessed and voluntary contributions; and
2.1.2.1.11. Other financial assistance transactions that authorize the expenditure of Federal funds by
non-Federal Entities.
2.1.1.1.12. Any other items specified by OMB in policy memoranda available at the OMB website or
other source posted by the OMB.
2.1.1.2. Award does not include:
2.1.1.2.1. Technical assistance, which provides services in lieu of money;
2.1.1.2.2. A transfer of title to Federally-owned property provided in lieu of money; even if the award
is called a grant;
2.1.1.2.3. Any award classified for security purposes; or
2.1.1.2.4. 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).
2.1.2. “Contract” means the Agreement or Subaward Agreement to which these Federal Provisions are
attached and includes all Award types in §2.1.1.1 of this Exhibit.
2.1.3. “Contractor” means the party or parties to a Contract or Subaward Agreement funded, in whole or
in part, with Federal financial assistance, other than the Prime Recipient, and includes Subrecipients
and borrowers. For purposes of Transparency Act reporting, Contractor does not include Vendors.
2.1.4. “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.
2.1.5. “Entity” means all of the following as defined at 2 CFR part 25, subpart C;
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2.1.5.1. A governmental organization, which is a State, local government, or Indian Tribe;
2.1.5.2. A foreign public entity;
2.1.5.3. A domestic or foreign non-profit organization;
2.1.5.4. A domestic or foreign for-profit organization; and
2.1.5.5. A Federal agency, but only a Subrecipient under an Award or Sub award to a non-Federal entity.
2.1.6. “Executive” means an officer, managing partner or any other employee in a management position.
2.1.7. “Federal Award Identification Number (FAIN)” means an Award number assigned by a Federal
agency to a Prime Recipient.
2.1.8. “Federal Awarding Agency” means a Federal agency providing a Federal Award to a Recipient as
described in 2 CFR §200.37
2.1.9. “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.”
2.1.10. “Federal Provisions” means these Federal Provisions subject to the Transparency Act and Uniform
Guidance, as may be revised pursuant to ongoing guidance from the relevant Federal or State of
Colorado agency or institutions of higher education.
2.1.11. “OMB” means the Executive Office of the President, Office of Management and Budget.
2.1.12. “Prime Recipient” means a Colorado State agency or institution of higher education that receives
an Award.
2.1.13. “Subaward” 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 in accordance with 2 CFR
§200.38. The term does not include payments to a contractor or payments to an individual that is a
beneficiary of a Federal program.
2.1.14. “Subrecipient” means a non-Federal Entity (or a Federal agency under an Award o r 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 Subrecipient.
The term does not include an individual who is a beneficiary of a federal program.
2.1.15. “Subrecipient Parent DUNS Number” means the sub recipient parent organization’s 9 -digit Data
Universal Numbering System (DUNS) number that appears in the sub recipient’s System for Award
Management (SAM) profile, if applicable.
2.1.16. “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.
2.1.17. “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:
2.1.17.1. Salary and bonus;
2.1.17.2. Awards of stock, stock options, and stock appreciation rights, using the dollar amount
recognized for financial statement reporting purposes with respect to the fiscal year in
accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2005)
(FAS 123R), Shared Based Payments;
2.1.17.3. 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;
2.1.17.4. Change in present value of defined benefit and actuarial pension plans;
2.1.17.5. Above-market earnings on deferred compensation which is not tax-qualified;
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2.1.17.6. 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, p erquisites or
property) for the Executive exceeds $10,000.
2.1.18. “Transparency Act” means the Federal Funding Accountability and Transparency Act of 2006
(Public Law 109-282), as amended by §6202 of Public Law 110-252. The Transparency Act also
is referred to as FFATA.
2.1.19. “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.
2.1.20. “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.
3. COMPLIANCE
3.1. Contractor shall comply with all applicable provisions of the Transparency Act, all applicable provisions
of the Uniform Guidance, and the regulations issued pursuant thereto, including but not limited to these
Federal Provisions. Any revisions to such provisions or regulations shall automatically become a part of
these Federal 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.
4. SYSTEM FOR AWARD MANAGEMENT (SAM) AND DATA UNIVERSAL NUMBERING
SYSTEM (DUNS) REQUIREMENTS
4.1. 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.
4.2. 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.
5. TOTAL COMPENSATION
5.1. Contractor shall include Total Compensation in SAM for each of its five most highly compensated
Executives for the preceding fiscal year if:
5.1.1. The total Federal funding authorized to date under the Award is $25,000 or more; and
5.1.2. In the preceding fiscal year, Contractor received:
5.1.2.1. 80% or more of its annual gross revenues from Federal procurement contracts and subcontracts
and/or Federal financial assistance Awards or Sub awards subject to the Transparency Act; and
5.1.2.2. $25,000,000 or more in annual gross revenues from Federal procurement contracts and
subcontracts and/or Federal financial assistance Awards or Sub awards subject to the
Transparency Act; and
5.1.3. The public does not have access to information about the compensation of such Executives through
periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C.
78m(a), 78o(d) or § 6104 of the Internal Revenue Code of 1986.
6. REPORTING
6.1. Contractor shall report data elements to SAM and to the Prime Recipien t as required in this Exhibit 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 Federal Provisions and the cost of
producing such reports shall be included in the Contract price. The reporting requirements in this Exhibit
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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.
7. EFFECTIVE DATE AND DOLLAR THRESHOLD FOR REPORTING
7.1. Reporting requirements in §8 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.
7.2. The procurement standards in §9 below are applicable to new Awards made by Prime Recipient as of
December 26, 2015. The standards set forth in §11 below are applicable to audits of fiscal years
beginning on or after December 26, 2014 .
8. SUBRECIPIENT REPORTING REQUIREMENTS
8.1. If Contractor is a Subrecipient, Contractor shall report as set forth below.
8.1.1. To SAM. A Subrecipient shall register in SAM and report the following data elements in SAM for
each Federal Award Identification Number no later than the end of the month following the month
in which the Sub award was made:
8.1.1.1. Subrecipient DUNS Number;
8.1.1.2. Subrecipient DUNS Number + 4 if more than one electronic funds transfer (EFT) account;
8.1.1.3. Subrecipient Parent DUNS Number;
8.1.1.4. Subrecipient’s address, including: Street Address, City, State, Country, Zip + 4, and
Congressional District;
8.1.1.5. Subrecipient’s top 5 most highly compensated Executives if the criteria in §4 above are met;
and
8.1.1.6. Subrecipient’s Total Compensation of top 5 most highly compensated Executives if criteria in
§4 above met.
8.1.2. To Prime Recipient. A Subrecipient shall report to its Prime Recipient, upon the effective date of
the Agreement, the following data elements:
8.1.2.1. Subrecipient’s DUNS Number as registered in SAM.
8.1.2.2. Primary Place of Performance Information, including: Street Address, City, State, Country, Zip
code + 4, and Congressional District.
9. PROCUREMENT STANDARDS
9.1. Procurement Procedures. A 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.
9.2. Procurement of Recovered Materials. If a Subrec ipient is a State Agency or an agency of a political
subdivision of the 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.
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10. ACCESS TO RECORDS
10.1. A Subrecipient shall permit Recipient and auditors to have access to Sub recipient’s records and financial
statements as necessary for Recipient to meet the requirements of §200.331 (Requirements for pass -
through entities), §§200.300 (Statutory and national policy requirements) through 200.309 (Period of
performance), and Subpart F-Audit Requirements of the Uniform Guidance. 2 CFR §200.331(a)(5).
11. SINGLE AUDIT REQUIREMENTS
11.1. If a Subrecipient expends $750,000 or more in Federal Awards during the Subrecipient’s fiscal year, the
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.
11.1.1. Election. A 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). The 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 Prime 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.
11.1.2. Exemption. If a Subrecipient expends less than $750,000 in Federal Awards during its fiscal year,
the 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 Accountability
Office.
11.1.3. Subrecipient Compliance Responsibility. A Subrecipient shall procure or otherwise arrange for
the audit required by Part F of the Uniform Guidance and ensure it is properly performed and
submitted when due in accordance with the Uniform Guidance. Subrecipient shall prepare
appropriate financial statements, including the schedule of expenditures of Federal awards in
accordance with Uniform Guidance §200.510 (Financial statements) and provide the auditor with
access to personnel, accounts, books, records, supporting documentation, and other information as
needed for the auditor to perform the audit required by Uniform Guidance Part F-Audit
Requirements.
12. CONTRACT PROVISIONS FOR SUBRECIPIENT CONTRACTS
12.1. If Contractor is a Subrecipient, then it shall comply with and shall include all of the following applicable
provisions in all subcontracts entered into by it pursuant to this Agreement.
12.1.1. 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 E xecutive Order 11246
Relating to Equal Employment Opportunity,” and implementing regulations at 41 CFR part 60,
“Office of Federal Contract Compliance Programs, Equal Employment Op portunity, Department of
Labor.
12.1.1.1. During the performance of this contract, the contractor agrees as follows:
12.1.1.1.1. 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
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for employment, notices to be provided by the contracting officer setting forth the
provisions of this nondiscrimination clause.
12.1.1.1.2. 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.
12.1.1.1.3. 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.
12.1.1.1.4. 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.
12.1.1.1.5. Contractor will furnish all information and reports required by Executive Order 11246 of
September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or
pursuant thereto, and will permit access to his books, records, and accounts by the
contracting agency and the Secretary of Labor for purposes of investigation to ascertain
compliance with such rules, regulations, and orders.
12.1.1.1.6. In the event of 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.
12.1.1.1.7. 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 b y
the Secretary of Labor as a means of enforcing such provisions including sanctions for
noncompliance: Provided, however, that in the event Contractor becomes involved in, or
is threatened with, litigation with a subcontractor or vendor as a result of su ch direction,
the contractor may request the United States to enter into such litigation to protect the
interests of the United States.”
12.1.2. Davis-Bacon Act. Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). When required by
Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non -
Federal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 3141-
3144, and 3146-3148) 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 wage s specified in a wage determination made
by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once
a week. The non-Federal entity must place a copy of the current prevailing wage determination
issued by the Department of Labor in each solicitation. The decision to award a contract or
subcontract must be conditioned upon the acceptance of the wage determination. The non -Federal
entity must report all suspected or reported violations to the Federal awarding agency. The contracts
must also include a provision for compliance with the Copeland “Anti -Kickback” Act (40 U.S.C.
3145), as supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and
Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants
from the United States”). The Act provides that each contractor or Subrecipient must be prohibited
from inducing, by any means, any person employed in the construction, completion, or repair of
public work, to give up any part of the compensation to which he or she is otherwise entitled. The
non-Federal entity must report all suspected or reported violations to the Federal awarding agency.
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12.1.3. Rights to Inventions Made Under a Contract or Contract. If the Federal Award meets the
definition of “funding Contract” 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
Contract,” 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 Contracts,” and any implementing regulations issued by the awarding
agency.
12.1.4. 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 subawards 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).
12.1.5. Debarment and Suspension (Executive Orders 12549 and 12689). A contract award (see 2 CFR
180.220) must not be made to parties listed on the government wide exclusions in the System for
Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement
Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p.
235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred,
suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory
or regulatory authority other than Executive Order 12549.
12.1.6. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). Contractors that apply or bid for an award
exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it
will not and has not used Federal appropriated funds to pay any person or organization for
influencing or attempting to influence an officer or employee of any agency, a member of Congress,
officer or employee of Congress, or an employee of a member of Congress in connection with
obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must
also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any
Federal award. Such disclosures are forwarded from tier-to-tier up to the non-Federal award.
13. CERTIFICATIONS
13.1. 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 meet 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 .
14. EXEMPTIONS
14.1. These Federal 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.
14.2. 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.
14.3. There are no Transparency Act reporting requirements for Vendors.
15. EVENT OF DEFAULT
15.1. Failure to comply with these Federal Provisions shall constitute an event of default under the Contract
and the State of Colorado may terminate the Contract upon 30 days prior written notice if the default
remains uncured five calendar days following the termination of the 30 -day notice period. This remedy
will be in addition to any other remedy available to the State of Colorado under the Contract, at law or
in equity.
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EXHIBIT D, REQUIRED FEDERAL CONTRACT/AGREEMENT CLAUSES
All FTA-Assisted Third-Party Contracts and Subawards from the Current FTA Master Agreement
[FTA MA(23)]
Section 3.l. – No Federal government obligations to third-parties by use of a disclaimer
No Federal/State Government Commitment or Liability to Third Parties. Except as the Federal Government or
CDOT expressly consents in writing, the Subrecipient agrees that:
(1) The Federal Government or CDOT do not and shall not have any commitment or liability related to the
Agreement, to any Third-Party Participant at any tier, or to any other person or entity that is not a party (FTA,
CDOT or the Subrecipient) to the Agreement, and
(2) Notwithstanding that the Federal Government or CDOT may have concurred in or approved any Solicitation
or Third-Party Agreement at any tier that may affect the Agreement, the Federal Government and CDOT
does not and shall not have any commitment or liability to any Third Party Participant or other entity or
person that is not a party (FTA, CDOT, or the Subrecipient) to the Agreement.
Section 4.f. – Program fraud and false or fraudulent statements and related acts
False or Fraudulent Statements or Claims.
(1) Civil Fraud. The Subrecipient acknowledges and agrees that:
(a) Federal laws, regulations, and requirements apply to itself and its Agreement, including the Program
Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 e t seq., and U.S. DOT regulations,
“Program Fraud Civil Remedies,” 49 C.F.R. part 31.
(b) By executing the Agreement, the Subrecipient certifies and affirms to the Federal Government the
truthfulness and accuracy of any claim, statement, submission, certification, assurance, affirmation, or
representation that the Subrecipient provides to the Federal Government and CDOT.
(c) The Federal Government and CDOT may impose the penalties of the Program Fraud Civil Remedies
Act of 1986, as amended, and other applicable penalties if the Subrecipient presents, submits, or makes
available any false, fictitious, or fraudulent information.
(2) Criminal Fraud. The Subrecipient acknowledges that 49 U.S.C. § 5323(l)(1) authorizes the Federal
Government to impose the penalties under 18 U.S.C. § 1001 if the Subrecipient provides a false, fictitious,
or fraudulent claim, statement, submission, certification, assurance , or representation in connection with a
federal public transportation program under 49 U.S.C. chapter 53 or any other applicable federal law.
Section 9. Record Retention and Access to Sites of Performance.
a. Types of Records. The Subrecipient agrees that it will retain, and will require its Third-Party Participants to retain,
complete and readily accessible records related in whole or in part to the Underlying Agreement, including, but
not limited to, data, documents, reports, statistics, subagreements, l eases, third party contracts, arrangements,
other third-party agreements of any type, and supporting materials related to those records.
b. Retention Period. The Subrecipient agrees that it will comply with the record retention requirements in the
applicable U.S. DOT Common Rule. Records pertaining to its Award, the accompanying Agreement, and any
Amendments thereto must be retained from the day the Agreement was signed by the authorized FTA or State
official through the course of the Award, the accompanying Agreement, and any Amendments thereto until three
years after the Subrecipient has submitted its last or final expenditure report, and other pending matters are closed.
c. Access to Recipient and Third-Party Participant Records. The Subrecipient agrees and assures that each
Subrecipient, if any, will agree to:
(1) Provide, and require its Third Party Participants at each tier to provide, sufficient access to inspect and audit
records and information related to its Award, the accompanying Agreement, and any Amendments thereto to
the U.S. Secretary of Transportation or the Secretary’s duly authorized representatives, to the Comptroller
General of the United States, and the Comptroller General’s duly authorized representatives, and to the
Subrecipient and each of its Subrecipient,
(2) Permit those individuals listed above to inspect all work and materials related to its Award, and to audit any
information related to its Award under the control of the Subrecipient or Third-Party Participant within books,
records, accounts, or other locations, and
(3) Otherwise comply with 49 U.S.C. § 5325(g), and federal access to records requirements as set forth in the
applicable U.S. DOT Common Rules.
d. Access to the Sites of Performance. The Subrecipient agrees to permit, and to require its Third-Party Participants
to permit, FTA and CDOT to have access to the sites of performance of its Award, the accompanying Agreement,
and any Amendments thereto, and to make site visits as needed in compliance with State and the U.S. DOT
Common Rules.
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e. Closeout. Closeout of the Award does not alter the record retention or access requirements of this section of th e
Master Agreement.
3.G – Federal Changes
Application of Federal, State, and Local Laws, Regulations, Requirements, and Guidan ce.
The Subrecipient agrees to comply with all applicable federal requirements and federal guidance. All standards
or limits are minimum requirements when those standards or limits are included in the Recipient’s Agreement or
this Master Agreement. At the time the FTA Authorized Official (CDOT) awards federal assistance to the
Subrecipient in support of the Agreement, the federal requirements and guidance that apply then may be modified
from time-to-time and will apply to the Subrecipient or the accompanying Agreement.
12 – Civil Rights
a. Nondiscrimination – Title VI of the Civil Rights Act. The Subrecipient agrees to, and assures that each Third-
Party Participant, will:
(1) Prohibit discrimination on the basis of race, color, or national origin,
(2) Comply with:
(a) Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d et seq.,
(b) U.S. DOT regulations, “Nondiscrimination in Federally-Assisted Programs of the Department of
Transportation – Effectuation of Title VI of the Civil Rights Act o f 1964,” 49 C.F.R. part 21, and
(c) Federal transit law, specifically 49 U.S.C. § 5332 , and
(3) Follow:
(a) The most recent edition of FTA Circular 4702.1, “Title VI Requirements and Guidelines for Federal
Transit Administration Recipients,” to the extent consistent with applicable federal laws,
regulations, requirements, and guidance,
(b) U.S. DOJ, “Guidelines for the enforcement of Title VI, Civil Rights Act of 1964,” 28 C.F.R. § 50.3,
and
(c) All other applicable federal guidance that may be issued.
b. Equal Employment Opportunity.
(1) Federal Requirements and Guidance. The Subrecipient agrees to, and assures that each Third-Party
Participant will, prohibit, discrimination on the basis of race, color, religion, sex, sexual orientation,
gender identity, or national origin, and:
(a) Comply with Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.,
(b) Facilitate compliance with Executive Order No. 11246, “Equal Employment Opportunity”
September 24, 1965, 42 U.S.C. § 2000e note, as amended by any later Executive Order that amends
or supersedes it in part and is applicable to federal assistance programs,
(c) Comply with federal transit law, specifically 49 U.S.C. § 5 332, as provided in section 12 of this
Master Agreement,
(d) FTA Circular 4704.1 “Equal Employment Opportunity (EEO) Requirements and Guidelines for
Federal Transit Administration Recipients,” and
(e) Follow other federal guidance pertaining to EEO laws, regulations, and requirements, and
prohibitions against discrimination on the basis of disability,
(2). Specifics. The Subrecipient agrees to, and assures that each Third-Party Participant will:
(a) Prohibited Discrimination. Ensure that applicants for employment are employed and employees are
treated during employment without discrimination on the basis of their race, color, religion, national
origin, disability, age, sexual orientation, gender identity, or status as a parent, as provided in
Executive Order No. 11246 and by any later Executive Order that amends or supersedes it, and as
specified by U.S. Department of Labor regulations,
(b) Affirmative Action. Take affirmative action that includes, but is not limited to:
1 Recruitment advertising, recruitment, and employment,
2 Rates of pay and other forms of compensation,
3 Selection for training, including apprenticeship, and upgrading, and
4 Transfers, demotions, layoffs, and terminations, but
(c) Indian Tribe. Recognize that Title VII of the Civil Rights Act of 1964, as amended, exempts Indian
Tribes under the definition of “Employer,” and
(3) Equal Employment Opportunity Requirements for Construction Activities . Comply, when undertaking
“construction” as recognized by the U.S. Department of Labor (U.S. DOL), with:
(a) U.S. DOL regulations, “Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor,” 41 C.F.R. chapter 60, and
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(b) Executive Order No. 11246, “Equal Employment Opportunity in Federal Employment,” September
24, 1965, 42 U.S.C. § 2000e note, as amended by any later Executive Order that amends or
supersedes it, referenced in 42 U.S.C. § 2000e note.
c. Nondiscrimination on the Basis of Disability. The Subrecipient agrees to comply with the following federal
prohibitions against discrimination on the basis of disability:
(1) Federal laws, including:
(a) Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, which prohibits
discrimination on the basis of disability in the administration of federally assisted Programs,
Projects, or activities,
(b) The Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. § 12101 et seq., which
requires that accessible facilities and services be made available to individuals with disabilities:
1 For FTA Recipients generally, Titles I, II, and III of the ADA apply, but
2 For Indian Tribes, Titles II and III of the ADA apply, but Title I of the ADA does not apply
because it exempts Indian Tribes from the definition of “employer,”
(c) The Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq., which requires that
buildings and public accommodations be accessible to individuals with disabilities,
(d) Federal transit law, specifically 49 U.S.C. § 5332, which now includes disability as a prohibited
basis for discrimination, and
(e) Other applicable federal laws, regulations, and requirements pertaining to access for seniors or
individuals with disabilities.
(2) Federal regulations and guidance, including:
(a) U.S. DOT regulations, “Transportation Services for Individuals with Disabilities (ADA),” 49
C.F.R. part 37,
(b) U.S. DOT regulations, “Nondiscrimination on the Basis of Disability in Programs and Activities
Receiving or Benefiting from Federal Financial Assistance,” 49 C.F.R. part 27,
(c) Joint U.S. Architectural and Transportation Barriers Compliance Board (U.S. ATBCB) and U.S.
DOT regulations, “Americans With Disabilities (ADA) Accessibility Specifications for
Transportation Vehicles,” 36 C.F.R. part 1192 and 49 C.F.R. part 38,
(d) U.S. DOT regulations, “Transportation for Individuals with Disabilities: Passenger Vessels,” 49
C.F.R. part 39,
(e) U.S. DOJ regulations, “Nondiscrimination on the Basis of Disability in State and L ocal
Government Services,” 28 C.F.R. part 35,
(f) U.S. DOJ regulations, “Nondiscrimination on the Basis of Disability by Public Accommodations
and in Commercial Facilities,” 28 C.F.R. part 36,
(g) U.S. EEOC, “Regulations to Implement the Equal Employment Provisions of the Americans with
Disabilities Act,” 29 C.F.R. part 1630,
(h) U.S. Federal Communications Commission regulations, “Telecommunications Relay Services and
Related Customer Premises Equipment for Persons with Disabilities,” 47 C.F.R. part 64, Subpart
F,
(i) U.S. ATBCB regulations, “Electronic and Information Technology Accessibility Standards,” 36
C.F.R. part 1194,
(j) FTA regulations, “Transportation for Elderly and Handicapped Persons,” 49 C.F.R. part 609,
(k) FTA Circular 4710.1, “Americans with Disabilities Act: Guidance,” and
(l) Other applicable federal civil rights and nondiscrimination regulations and guidance.
Incorporation of FTA Terms – 16.a.
a. Federal Laws, Regulations, Requirements, and Guidance. The Subrecipient agrees:
(1) To comply with the requirements of 49 U.S.C. chapter 53 and other applicable federal laws, regulations,
and requirements in effect now or later that affect its third party procurements,
(2) To comply with the applicable U.S. DOT Common Rules, and
(3) To follow the most recent edition and any revisions of FTA Circular 4220.1, “Third Party Contracting
Guidance,” to the extent consistent with applicable federal laws, regulations, requirements, and
guidance.
Energy Conservation – 26.j
a. Energy Conservation. The Subrecipient agrees to, and assures that its Subrecipients, if any, will comply with the
mandatory energy standards and policies of its state energy conservation plans under the Energy Policy and
Conservation Act, as amended, 42 U.S.C. § 6321 et seq., and p erform an energy assessment for any building
constructed, reconstructed, or modified with federal assistance required under FTA regulations, “Requirements
for Energy Assessments,” 49 C.F.R. part 622, subpart C.
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Applicable to Awards exceeding $10,000
Section 11. Right of the Federal Government to Terminate.
a. Justification. After providing written notice to the Subrecipient, the Subrecipient agrees that the Federal
Government may suspend, suspend then terminate, or terminate all or any part of the federal assistance for the
Award if:
(1) The Subrecipient has failed to make reasonable progress implementing the Award,
(2) The Federal Government determines that continuing to provide federal assistance to support the Award does
not adequately serve the purposes of the law authorizing the Award, or
(3) The Subrecipient has violated the terms of the Agreement, especially if that violation would endanger
substantial performance of the Agreement.
b. Financial Implications. In general, termination of federal assistance for the Award will not invalidate obligations
properly incurred before the termination date to the extent that the obligations cannot be canceled. The Federal
Government may recover the federal assistance it has provided for the Award, including the fed eral assistance for
obligations properly incurred before the termination date, if it determines that the Subrecipient has misused its
federal assistance by failing to make adequate progress, failing to make appropriate use of the Project property,
or failing to comply with the Agreement, and require the Subrecipient to refund the entire amount or a lesser
amount, as the Federal Government may determine including obligations properly incurred before the termination
date.
c. Expiration of the Period of Performance. Except for a Full Funding Grant Agreement, expiration of any period of
performance established for the Award does not, by itself, constitute an expiration or termination of the Award;
FTA may extend the period of performance to assure that each Form ula Project or related activities and each
Project or related activities funded with “no year” funds can receive FTA assistance to the extent FTA deems
appropriate.
Applicable to Awards exceeding $25,000
From Section 4. Ethics.
a. Debarment and Suspension. The Subrecipient agrees to the following:
(1) It will comply with the following requirements of 2 C.F.R. part 180, subpart C, as adopted and
supplemented by U.S. DOT regulations at 2 C.F.R. part 1200.
(2) It will not enter into any arrangement to participate in the development or implementation of the
Underlying Agreement with any Third-Party Participant that is debarred or suspended except as
authorized by:
(a) U.S. DOT regulations, “Nonprocurement Suspension and Debarment,” 2 C.F.R. part 1200,
(b) U.S. OMB regulatory guidance, “Guidelines to Agencies on Government-wide Debarment and
Suspension (Nonprocurement),” 2 C.F.R. part 180, including any amendments thereto,
(c) Executive Orders No. 12549, “Uniform Suspension, Debarment, or Exclusion of Participants from
Procurement or Nonprocurement Activity,” October 13, 1994,” 31 U.S.C. § 6101 note, as amended
by Executive Order No. 12689, “Debarment and Suspension,” August 16, 1989 , 31 U.S.C. § 6101
note, and
(d) Other applicable federal laws, regulations, or guidance regarding participation with debarred or
suspended Subrecipients or Third-Party Participants.
(3) It will review the U.S. GSA “System for Award Management – Lists of Parties Excluded from Federal
Procurement and Nonprocurement Programs,” https://www.sam.gov, if required by U.S. DOT
regulations, 2 C.F.R. part 1200.
(4) It will include, and require each Third-Party Participant to include, a similar provision in each lower tier
covered transaction, ensuring that each lower tier Third Party Participant:
(a) Complies with federal debarment and suspension requirements, and
(b) Reviews the SAM at https://www.sam.gov, if necessary to comply with U.S. DOT regulations, 2
C.F.R. part 1200.
(5) If the Subrecipient suspends, debars, or takes any similar action against a Third-Party Participant or
individual, the Subrecipient will provide immediate written notice to the:
(a) FTA Regional Counsel for the Region in which the Subrecipient is located or implements the
Agreement,
(b) FTA Headquarters Manager that administers the Grant or Cooperative Agreement, or
(c) FTA Chief Counsel.
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Applicable to Awards exceeding the simplified acquisition threshold ($100,000-see Note)
Note: Applicable when tangible property or construction will be acquired
Section 15. Preference for United States Products and Services.
Except as the Federal Government determines otherwise in writing, the Subrecipient agrees to comply with FTA’s
U.S. domestic preference requirements and follow federal guidance, including:
Buy America. The domestic preference procurement requirements of 49 U.S.C. § 5323(j), and FTA regulations,
“Buy America Requirements,” 49 C.F.R. part 661, to the extent consistent with 49 U.S.C. § 5323(j).
Section 39. Disputes, Breaches, Defaults, or Other Litigation.
a. FTA Interest. FTA has a vested interest in the settlement of any violation of federal law, regulation, or
disagreement involving the Award, the accompanying Agreement, and any Amendments thereto including,
but not limited to, a default, breach, major dispute, or lit igation, and FTA reserves the right to concur in any
settlement or compromise.
b. Notification to FTA. If a current or prospective legal matter that may affect the Federal Government emerges,
the Subrecipient must promptly notify the FTA Chief Counsel, or FTA Regional Counsel for the Region in
which the Subrecipient is located.
(1) The types of legal matters that require notification include, but are not limited to, a major dispute, breach,
default, litigation, or naming the Federal Government as a party to litigation or a legal disagreement in
any forum for any reason.
(2) Matters that may affect the Federal Government include, but are not limited to, the Federal Government’s
interests in the Award, the accompanying Underlying Agreement, and any Amendment s thereto, or the
Federal Government’s administration or enforcement of federal laws, regulations, and requirements.
(3) If the Subrecipient has credible evidence that a Principal, Official, Employee, Agent, or Third Party
Participant of the Subrecipient, or other person has submitted a false claim under the False Claims Act,
31 U.S.C. § 3729 et seq., or has committed a criminal or civil violation of law pertaining to such matters
as fraud, conflict of interest, bribery, gratuity, or similar misconduct invo lving federal assistance, the
Subrecipient must promptly notify the U.S. DOT Inspector General, in addition to the FTA Chief
Counsel or Regional Counsel for the Region in which the Subrecipient is located.
c. Federal Interest in Recovery. The Federal Government retains the right to a proportionate share of any
proceeds recovered from any third party, based on the percentage of the federal share for the Agreement.
Notwithstanding the preceding sentence, the Subrecipient may return all liquidated damages it receives to its
Award Budget for its Agreement rather than return the federal share of those liquidated damages to the
Federal Government, provided that the Subrecipient receives FTA’s prior written concurrence.
d. Enforcement. The Subrecipient must pursue its legal rights and remedies available under any third-party
agreement, or any federal, state, or local law or regulation.
Applicable to Awards exceeding $100,000 by Statute
From Section 4. Ethics.
a. Lobbying Restrictions. The Subrecipient agrees that neither it nor any Third-Party Participant will use federal
assistance to influence any officer or employee of a federal agency, member of Congress or an employee of a
member of Congress, or officer or employee of Congress on matters that involve the Agree ment, including any
extension or modification, according to the following:
(1) Laws, Regulations, Requirements, and Guidance. This includes:
(a) The Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352, as amended,
(b) U.S. DOT regulations, “New Restrictions on Lobbying,” 49 C.F.R. part 20, to the extent consistent with
31 U.S.C. § 1352, as amended, and
(c) Other applicable federal laws, regulations, requirements, and guidance prohibiting the use of federal
assistance for any activity concerning legislation or appropriations designed to influence the U.S.
Congress or a state legislature, and
(2) Exception. If permitted by applicable federal law, regulations, requirements, or guidance, such lobbying
activities described above may be undertaken through the Subrecipient’s or Subrecipient’s proper official
channels.
Section 26. Environmental Protections – Clean Air and Clean Water
Other Environmental Federal Laws. The Subrecipient agrees to comply or facilitate compliance and assures
that its Third Party Participants will comply or facilitate compliance with all applicable federal laws,
regulations, and requirements, and will follow applicable guidance, including, but not limited to, the Clean
Air Act, Clean Water Act, Wild and Scenic Rivers Act of 1968, Coastal Zone Ma nagement Act of 1972,
the Endangered Species Act of 1973, Magnuson Stevens Fishery Conservation and Management Act,
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Resource Conservation and Recovery Act, Comprehensive Environmental Response, Compensation, and
Liability Act, Executive Order No. 11990 relating to “Protection of Wetlands,” and Executive Order Nos.
11988 and 13690 relating to “Floodplain Management.”)
Applicable with the Transfer of Property or Persons
Section 15. Preference for United States Products and Services.
Except as the Federal Government determines otherwise in writing, the Subrecipient agrees to comply with FTA’s
U.S. domestic preference requirements and follow federal guidance, including:
a. Buy America. The domestic preference procurement requirements of 49 U.S.C. § 5323(j), and FTA
regulations, “Buy America Requirements,” 49 C.F.R. part 661, to the extent consistent with 49 U.S.C. §
5323(j),
b. Cargo Preference. Preference – Use of United States-Flag Vessels. The shipping requirements of 46 U.S.C.
§ 55305, and U.S. Maritime Administration regulations, “Cargo Preference – U.S.-Flag Vessels,” 46 C.F.R.
part 381, and
c. Fly America. The air transportation requirements of Section 5 of the International Air Transportation Fair
Competitive Practices Act of 1974, as amended, 49 U.S.C. § 40118, and U.S. General Services
Administration (U.S. GSA) regulations, “Use of United States Flag Air Carriers,” 41 C.F.R. §§ 301 -10.131
– 301-10.143.
Applicable to Construction Activities
Section 24. Employee Protections.
a. Awards Involving Construction. The Subrecipient agrees to comply and assures that each Third-Party Participant
will comply with all federal laws, regulations, and requirements providing protections for construction employees
involved in each Project or related activities with federal assistance provided through the Agreement, including
the:
(1) Prevailing Wage Requirements of:
(a) Federal transit laws, specifically 49 U.S.C. § 5333(a), (FTA’s “Davis -Bacon Related Act”),
(b) The Davis-Bacon Act, 40 U.S.C. §§ 3141 – 3144, 3146, and 3147, and
(c) U.S. DOL regulations, “Labor Standards Provisions Applicable to Contracts Covering Federally
Financed and Assisted Construction (also Labor Standards Provisions Applicable to Nonconstruction
Contracts Subject to the Contract Work Hours and Safety Standards Act),” 29 C.F.R. part 5.
(2) Wage and Hour Requirements of:
(a) Section 102 of the Contract Work Hours and Safety Standards Act, as amended, 40 U.S.C. § 3702, and
other relevant parts of that Act, 40 U.S.C. § 3701 et seq., an
(b) U.S. DOL regulations, “Labor Standards Provisions Applicable to Contracts Covering Federally
Financed and Assisted Construction (also Labor Standards Provisions Applicable to Nonconstruction
Contracts Subject to the Contract Work Hours and Safety Standards Act),” 29 C.F.R. part 5.
(3) “Anti-Kickback” Prohibitions of:
(a) Section 1 of the Copeland “Anti-Kickback” Act, as amended, 18 U.S.C. § 874,
(b) Section 2 of the Copeland “Anti-Kickback” Act, as amended, 40 U.S.C. § 3145, and
(c) U.S. DOL regulations, “Contractors and Subcontractors on Public Building or Public Work Financed in
Whole or in Part by Loans or Grants from the United States,” 29 C.F.R. part 3.
(4) Construction Site Safety of:
(a) Section 107 of the Contract Work Hours and Safety Standards Act, as amended, 40 U.S.C. § 3704, and
other relevant parts of that Act, 40 U.S.C. § 3701 et seq., and
(b) U.S. DOL regulations, “Recording and Reporting Occupational Injuries and Illnesses,” 29 C.F.R. part
1904; “Occupational Safety and Health Standards,” 29 C.F.R. part 1910; and “Safety and Health
Regulations for Construction,” 29 C.F.R. part 1926.
From Section 16
b. Bonding. The Subrecipient agrees to comply with the following bonding requirements and restrictions as provided
in federal regulations and guidance:
1 Construction. As provided in federal regulations and modified by FTA guidance, for each Project or related
activities implementing the Agreement that involve construction, it will provide bid guarantee bonds, contract
performance bonds, and payment bonds.
2 Activities Not Involving Construction. For each Project or related activities implementing the Agreement not
involving construction, the Subrecipient will not impose excessive bonding and will follow FTA guidance.
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From Section 23
c. Seismic Safety. The Subrecipient agrees to comply with the Earthquake Hazards Reduction Act of 1977, as
amended, 42 U.S.C. § 7701 et seq., and U.S. DOT regulations, “Seismic Safety,” 49 C.F.R. part 41, specifically,
49 C.F.R. § 41.117.
Section 12 Civil Rights D.3
d. Equal Employment Opportunity Requirements for Construction Activities. Comply, when undertaking
“construction” as recognized by the U.S. Department of Labor (U.S. DOL), with:
a. U.S. DOL regulations, “Office of Federal Contract Co mpliance Programs, Equal Employment Opportunity,
Department of Labor,” 41 C.F.R. chapter 60, and
b. Executive Order No. 11246, “Equal Employment Opportunity in Federal Employment,” September 24, 1965,
42 U.S.C. § 2000e note, as amended by any later Executi ve Order that amends or supersedes it, referenced
in 42 U.S.C. § 2000e note.
Applicable to Nonconstruction Activities
From Section 24. Employee Protections
a. Awards Not Involving Construction. The Subrecipient agrees to comply and assures that each Third Party
Participant will comply with all federal laws, regulations, and requirements providing wage and hour protections
for nonconstruction employees, including Section 102 of the Contract Work Hours and Safety Standards Act, as
amended, 40 U.S.C. § 3702, and other relevant parts of that Act, 40 U.S.C. § 3701 et seq., and U.S. DOL
regulations, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted
Construction (also Labor Standards Provisions Applicable to Nonconstructio n Contracts Subject to the Contract
Work Hours and Safety Standards Act),” 29 C.F.R. part 5.
Applicable to Transit Operations
a. Public Transportation Employee Protective Arrangements . As a condition of award of federal assistance
appropriated or made available for FTA programs involving public transportation operations, the Subrecipient
agrees to comply and assures that each Third-Party Participant will comply with the following employee
protective arrangements of 49 U.S.C. § 5333(b):
(1) U.S. DOL Certification. When its Awarded, the accompanying Agreement, or any Amendments thereto
involve public transportation operations and are supported with federal assistance appropriated or made
available for 49 U.S.C. §§ 5307 – 5312, 5316, 5318, 5323(a)(1), 5323(b), 5323(d), 5328, 5337, 5338(b),
or 5339, or former 49 U.S.C. §§ 5308, 5309, 5312, or other provisions of law as required by the Federal
Government, U.S. DOL must provide a certification of employee protective arrangements before FTA
may provide federal assistance for that Award. The Subrecipient agrees that the certification issued by
U.S. DOL is a condition of the Agreement and that the Subrecipient must comply with its terms and
conditions.
(2) Special Warranty. When its Agreement involves public transportation operations and is supported with
federal assistance appropriated or made available for 49 U.S.C. § 5311, U.S. DOL will provide a Special
Warranty for its Award, including its Award of federal assistance under the Tribal Transit Program. The
Subrecipient agrees that its U.S. DOL Special Warranty is a condition of the Agreement and the
Subrecipient must comply with its terms and conditions.
(3) Special Arrangements for Agreements for Federal Assistance Authorized under 49 U.S.C. § 5310. The
Subrecipient agrees, and assures that any Third Party Participant providing public transportation
operations will agree, that although pursuant to 49 U.S.C. § 5310, and former 49 U.S.C. §§ 5310 or 5317,
FTA has determined that it was not “necessary or appropriate” to apply the conditions of 49 U.S.C. §
5333(b) to any Subagreement participating in the program to provide public transportation for seniors
(elderly individuals) and individuals with disabilities, FTA reserves the right to make case-by- case
determinations of the applicability of 49 U.S.C. § 5333(b) for all transfers of funding authorized under
title 23, United States Code (flex funds), and make other exceptions as it deems appropriate.
Section 28. Charter Service.
a. Prohibitions. The Recipient agrees that neither it nor any Third-Party Participant involved in the Award will
engage in charter service, except as permitted under federal transit laws, specifically 49 U.S.C. § 5323(d), (g),
and (r), FTA regulations, “Charter Service,” 49 C.F.R. part 604, any oth er Federal Charter Service regulations,
federal requirements, or federal guidance.
b. Exceptions. Apart from exceptions to the Charter Service restrictions in FTA’s Charter Service regulations, FTA
has established the following additional exceptions to tho se restrictions:
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(1) FTA’s Charter Service restrictions do not apply to equipment or facilities supported with federal assistance
appropriated or made available for 49 U.S.C. § 5307 to support a Job Access and Reverse Commute (JARC)-
type Project or related activities that would have been eligible for assistance under repealed 49 U.S.C. § 5316
in effect in Fiscal Year 2012 or a previous fiscal year, provided that the Subrecipient uses that federal
assistance for FTA program purposes only, and
(2) FTA’s Charter Service restrictions do not apply to equipment or facilities supported with the federal
assistance appropriated or made available for 49 U.S.C. § 5310 to support a New Freedom -type Project or
related activities that would have been eligible for federal assistance under repealed 49 U.S.C. § 5317 in
effect in Fiscal Year 2012 or a previous fiscal year, provided the Subrecipient uses that federal assistance for
program purposes only.
c. Violations. If it or any Third Party Participant engages in a pattern o f violations of FTA’s Charter Service
regulations, FTA may require corrective measures and remedies, including withholding an amount of federal
assistance as provided in FTA’s Charter Service regulations, 49 C.F.R. part 604, appendix D, or barring it or the
Third Party Participant from receiving federal assistance provided in 49 U.S.C. chapter 53, 23 U.S.C. § 133, or
23 U.S.C. § 142.
Section 29. School Bus Operations.
a. Prohibitions. The Subrecipient agrees that neither it nor any Third Party Participant that is participating in its
Award will engage in school bus operations exclusively for the transportation of students or school personnel in
competition with private school bus operators, except as permitted by federal transit laws, 49 U.S.C. § 5323(f) or
(g), FTA regulations, “School Bus Operations,” 49 C.F.R. part 605, and any other applicable federal “School Bus
Operations” laws, regulations, federal requirements, or applicable federal guidance.
b. Violations. If a Subrecipient or any Third-Party Participant has operated school bus service in violation of FTA’s
School Bus laws, regulations, or requirements, FTA may require the Subrecipient or Third Party Participant to
take such remedial measures as FTA considers appropriate, or bar the Subrecipient or T hird Party Participant
from receiving federal transit assistance.
From Section 35 Substance Abuse
c. Alcohol Misuse and Prohibited Drug Use.
(1) Requirements. The Subrecipient agrees to comply and assures that its Third -Party Participants will comply
with:
(a) Federal transit laws, specifically 49 U.S.C. § 5331,
(b) FTA regulations, “Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations,” 49
C.F.R. part 655, and
(c) Applicable provisions of U.S. DOT regulations, “Procedures for Transpor tation Workplace Drug and
Alcohol Testing Programs,” 49 C.F.R. part 40.
(2) Remedies for Non-Compliance. The Subrecipient agrees that if FTA determines that the Subrecipient or a
Third-Party Participant receiving federal assistance under 49 U.S.C. chapter 53 is not in compliance with 49
C.F.R. part 655, the Federal Transit Administrator may bar that Subrecipient or Third Party Participant from
receiving all or a portion of the federal transit assistance for public transportation it would otherwise receive.
Applicable to Planning, Research, Development, and Documentation Projects
Section 17. Patent Rights.
a. General. The Subrecipient agrees that:
(1) Depending on the nature of the Agreement, the Federal Government may acquire patent rights when the
Subrecipient or Third-Party Participant produces a patented or patentable invention, improvement, or
discovery;
(2) The Federal Government’s rights arise when the patent or patentable information is conceived or reduced to
practice with federal assistance provided through the Agreement; or
(3) When a patent is issued or patented information becomes available as described in the preceding section
17.a.(2) of this Master Agreement (FTA MA(23)), the Subrecipient will notify FTA immediately and provide
a detailed report satisfactory to FTA.
b. Federal Rights. The Subrecipient agrees that:
(1) Its rights and responsibilities, and each Third-Party Participant’s rights and responsibilities , in that federally
assisted invention, improvement, or discovery will be determi ned as provided in applicable federal laws,
regulations, requirements, and guidance, including any waiver thereof, and
(2) Unless the Federal Government determines otherwise in writing, irrespective of its status or the status of any
Third Party Participant as a large business, small business, state government, state instrumentality, local
government, Indian tribe, nonprofit organization, institution of higher education, or individual, the
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Subrecipient will transmit the Federal Government’s patent rights to FTA, as specified in 35 U.S.C. § 200 et
seq., and U.S. Department of Commerce regulations, “Rights to Inventions Made by Nonprofit Organizations
and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” 37 C.F.R.
part 401.
c. License Fees and Royalties. Consistent with the applicable U.S. DOT Common Rules, the Subrecipient agrees
that license fees and royalties for patents, patent applications, and inventions produced with federal assistance
provided through the Agreement are program income and must be used in compliance with applicable federal
requirements.
Section 18. Rights in Data and Copyrights.
a. Definition of “Subject Data.” As used in this section, “subject data” means recorded information whether or not
copyrighted, and that is delivered or specified to be delivered as required by the Agreement. Examples of “subject
data” include, but are not limited to computer software, standards, specifications, engineering drawings and
associated lists, process sheets, manuals, technical reports, catalog item identifications, and related information,
but do not include financial reports, cost analyses, or other similar information used for performance or
administration of the Agreement.
b. General Federal Restrictions. The following restrictions apply to all subject data first produced in the performance
of the Agreement:
(1) Prohibitions. The Subrecipient may not publish or reproduce any subject data, in whole, in part, or in any
manner or form, or permit others to do so.
(2) Exceptions. The prohibitions do not apply to publications or reproductions for the Subrecipient’s own internal
use, an institution of higher learning, the portion of subject data that the Federal Government has previously
released or approved for release to the public, or the portion of data that has the Federal Government’s prior
written consent for release.
c. Federal Rights in Data and Copyrights. The Subrecipient agrees that:
(1) General. It must provide a license to its “subject data” to the Federal Government that is royalty -free, non-
exclusive, and irrevocable. The Federal Government’s license must permit the Federal Government to
reproduce, publish, or otherwise use the subject data or permit other entities or individuals to use the subject
data provided those actions are taken for Federal Government purposes, and
(2) U.S. DOT Public Access Plan – Copyright License. The Subrecipient grants to U.S. DOT a worldwide, non-
exclusive, non-transferable, paid-up, royalty-free copyright license, including all rights under copyright, to
any and all Publications and Digital Data Sets as such terms are defined in the U.S. DOT Public Access plan,
resulting from scientific research funded either fully or partially by this funding agreement. The Subrecipient
herein acknowledges that the above copyright license grant is first in time to any and all other grants of a
copyright license to such Publications and/or Digital Data Sets, and that U.S. DOT shall have priority over
any other claim of exclusive copyright to the same.
d. Special Federal Rights in Data for Research, Development, Demonstration, Deployment, Technical Assistance,
and Special Studies Programs. In general, FTA’s purpose in providing federal assistance for a research,
development, demonstration, deployment, technical assistance, or special studies program is to increase
transportation knowledge, rather than limit the bene fits of the Award to the Subrecipient and its Third-Party
Participants. Therefore, the Subrecipient agrees that:
(1) Publicly Available Report. When an Award providing federal assistance for any of the programs described
above is completed, it must provide a report of the Agreement that FTA may publish or make available for
publication on the Internet.
(2) Other Reports. It must provide other reports related to the Award that FTA may request.
(3) Availability of Subject Data. FTA may make available its copyright license to the subject data, and a copy
of the subject data to any FTA Recipient or any Third -Party Participant at any tier, except as the Federal
Government determines otherwise in writing.
(4) Identification of Information. It must identify clearly any specific confidential, privileged, or proprietary
information submitted to FTA.
(5) Incomplete. If the Award is not completed for any reason whatsoever, all data developed with federal
assistance for the Award becomes “subject data” and must be delivered as the Federal Government may
direct.
(6) Exception. This section does not apply to an adaptation of any automatic data processing equipment or
program that is both for the Subrecipient’s use and acquired with FTA capital program assistance.
e. License Fees and Royalties. Consistent with the applicable U.S. DOT Common Rules, the Subrecipient agrees
that license fees and royalties for patents, patent applications, and inventions produced with federal assistance
provided through the Agreement are program income and must be used in compliance with federal applicable
requirements.
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f. Hold Harmless. Upon request by the Federal Government, the Subrecipient agrees that if it intentionally violates
any proprietary rights, copyrights, or right of privacy, and if its violation under the preceding section occurs from
any of the publication, translation, reproduction, delivery, use or disposition of subject data, then it will indemnify,
save, and hold harmless against any liability, including costs and expenses of the Federal Government’s officers,
employees, and agents acting within the scope of their official duties. The Subrecipient will not be required to
indemnify the Federal Government for any liability described in the preceding sentence, if the violation is caused
by the wrongful acts of federal officers, employees or agents, or if indemnification is prohibited or limited by
applicable state law.
g. Restrictions on Access to Patent Rights. Nothing in this section of this Master Agreement (FTA MA(23))
pertaining to rights in data either implies a license to the Federal Government under any patent, or may be
construed to affect the scope of any license or other right otherwise granted to the Federal Government under any
patent.
h. Data Developed Without Federal Assistance or Support. The Subrecipient agrees that in certain circumstances it
may need to provide to FTA data developed without any federal assistance or support. Nevertheless, this section
generally does not apply to data developed without federal assistance, even though that data may have been used
in connection with the Award. The Subrecipient agrees that the Federal Government will not be able to protect
data developed without federal assistance from unauthorized disclosure unless that data is clearly marked
“Proprietary,” or “Confidential.”
i. Requirements to Release Data. The Subrecipient understands and agrees that the Federal Government may be
required to release data and information the Subrecipient submits to the Federal Government as requir ed under:
(1). The Freedom of Information Act (FOIA), 5 U.S.C. § 552,
(2) The U.S. DOT Common Rules,
(3) U.S. DOT Public Access Plan, which provides that the Subrecipient agrees to satisfy the reporting and
compliance requirements as set forth in the U.S. DOT Public Access plan, including, but not limited to, the
submission and approval of a Data Management Plan, the use of Open Researcher and Contributor ID
(ORCID) numbers, the creation and maintenance of a Research Project record in the Transportation Research
Board’s (TRB) Research in Progress (RiP) database, and the timely and complete submission of all required
publications and associated digital data sets as such terms are defined in the DOT Public Access plan.
Additional information about how to compl y with the requirements can be found at:
http://ntl.bts.gov/publicaccess/howtocomply.html, or
(4) Other federal laws, regulations, requirements, and guidance concerning access to records pertaining to the
Award, the accompanying Agreement, and any Amendments thereto.
Miscellaneous Special Requirements
From Section 12. Civil Rights.
a. Disadvantaged Business Enterprise (and Prompt Payment and Return of Retainage). To the extent authorized by
applicable federal laws, regulations, or requirements, the Subrecipient agrees to facilitate, and assures that each
Third-Party Participant will facilitate, participation by small business concerns owned and controlled by socially
and economically disadvantaged individuals, also referred to as “Disadvantaged Business Ente rprises” (DBEs),
in the Agreement as follows:
(1) Statutory and Regulatory Requirements. The Subrecipient agrees to comply with:
(a) Section 1101(b) of the FAST Act, 23 U.S.C. § 101 note,
(b) U.S. DOT regulations, “Participation by Disadvantaged Business Enterprises in Department of
Transportation Financial Assistance Programs,” 49 C.F.R. part 26, and
(c) Federal transit law, specifically 49 U.S.C. § 5332, as provided in section 12 of this Master Agreement
(FTA MA(23)).
(2) DBE Program Requirements. A Subrecipient that receives planning, capital and/or operating assistance and
that will award prime third-party contracts exceeding $250,000 the requirements of 49 C.F.R. part 26.
(3) Special Requirements for a Transit Vehicle Manufacturer (TVM). The Subrecipie nt agrees that:
(a) TVM Certification. Each TVM, as a condition of being authorized to bid or propose on FTA-assisted
transit vehicle procurements, must certify that it has complied with the requirements of 49 C.F.R. part
26, and
(b) Reporting TVM Awards. Within 30 days of any third -party contract award for a vehicle purchase, the
Subrecipient must submit to FTA the name of the TVM contractor and the total dollar value of the third
party contract, and notify FTA that this information has been attached to FT A’s electronic award
management system. The Subrecipient must also submit additional notifications if options are exercised
in subsequent years to ensure that the TVM is still in good standing.
(4) Assurance. As required by 49 C.F.R. § 26.13(a):
(a) Recipient Assurance. The Subrecipient agrees and assures that:
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1 It must not discriminate on the basis of race, color, national origin, or sex in the award and
performance of any FTA or U.S. DOT-assisted contract, or in the administration of its DBE program
or the requirements of 49 C.F.R. part 26,
2 It must take all necessary and reasonable steps under 49 C.F.R. part 26 to ensure nondiscrimination
in the award and administration of U.S. DOT assisted contracts,
3 Its DBE program, as required under 49 C.F.R. part 26 and as approved by U.S. DOT, is incorporated
by reference and made part of the Underlying Agreement, and
4 Implementation of its DBE program approved by U.S. DOT is a legal obligation and failure to carry
out its terms shall be treated as a violation of the Master Agreement (FTA MA(23)).
(b) Subrecipient/Third Party Contractor/Third Party Subcontractor Assurance. The Subrecipient agrees and
assures that it will include the following assurance in each subagreement and third-party contract it signs
with a Subrecipient or Third-Party Contractor and agrees to obtain the agreement of each of its
Subrecipients, Third Party Contractors, and Third Party Subcontractors to include the following
assurance in every subagreement and third party contract it signs:
1 The Subrecipient, each Third-Party Contractor, and each Third-Party Subcontractor must not
discriminate on the basis of race, color, national origin, or sex in the award and performance of any
FTA or U.S. DOT-assisted subagreement, third party contract, and third party subcontract, as
applicable, and the administration of its DBE program or the requirements of 49 C.F.R. part 26,
2 The Subrecipient, each Third-Party Contractor, and each Third-Party Subcontractor must take all
necessary and reasonable steps under 49 C.F.R. part 26 to ensure nondiscrimination in the award
and administration of U.S. DOT-assisted subagreements, third party contracts, and third party
subcontracts, as applicable,
3 Failure by the Subrecipient and any of its Third Party Contractors or Third Party Subcontractors to
carry out the requirements of subparagraph 12.e(4)(b) (of FTA MA(23)) is a material breach of their
subagreement, third party contract, or third party subcontract, as applicable, and
4 The following remedies, or such other remedy as the Subrecipient deems appropriate, include, but
are not limited to, withholding monthly progress payments; assessing sanctions; liquidated damages;
and/or disqualifying the Subrecipient, Third Party Contractor, or Third -Party Subcontractor from
future bidding as non-responsible.
(5) Remedies. Upon notification to the Subrecipient of its failure to carry out its approved program, FTA or U.S.
DOT may impose sanctions as provided for under 49 C.F.R. part 26, and, in appropriate cases, refer the
matter for enforcement under either or both 18 U.S.C. § 1001, and/or the Program Fraud Civil Remedies Act
of 1986, 31 U.S.C. § 3801 et seq.
From Section 12. Civil Rights.
b. Nondiscrimination on the Basis of Disability. The Subrecipient agrees to comply with t he following federal
prohibitions against discrimination on the basis of disability:
(1) Federal laws, including:
(a) Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, which prohibits
discrimination on the basis of disability in the administration of federally assisted Programs,
Projects, or activities,
(b) The Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. § 12101 et seq., which
requires that accessible facilities and services be made available to individuals with disabilities:
1 For FTA Recipients generally, Titles I, II, and III of the ADA apply, but
2 For Indian Tribes, Titles II and III of the ADA apply, but Title I of the ADA does not apply
because it exempts Indian Tribes from the definition of “employer,”
(c) The Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq., which requires that
buildings and public accommodations be accessible to individuals with disabilities,
(d) Federal transit law, specifically 49 U.S.C. § 5332, which now includes disability as a prohibited
basis for discrimination, and
(e) Other applicable federal laws, regulations, and requirements pertaining to access for seniors or
individuals with disabilities.
(2) Federal regulations and guidance, including:
(a) U.S. DOT regulations, “Transportation Services for Individuals with Disabilities (ADA),” 49 C.F.R.
part 37,
(b) U.S. DOT regulations, “Nondiscrimination on the Basis of Disability in Programs and Activities
Receiving or Benefiting from Federal Financial Assista nce,” 49 C.F.R. part 27,
(c) Joint U.S. Architectural and Transportation Barriers Compliance Board (U.S. ATBCB) and U.S.
DOT regulations, “Americans With Disabilities (ADA) Accessibility Specifications for
Transportation Vehicles,” 36 C.F.R. part 1192 and 49 C.F.R. part 38,
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(d) U.S. DOT regulations, “Transportation for Individuals with Disabilities: Passenger Vessels,” 49
C.F.R. part 39,
(e) U.S. DOJ regulations, “Nondiscrimination on the Basis of Disability in State and Local Government
Services,” 28 C.F.R. part 35,
(f) U.S. DOJ regulations, “Nondiscrimination on the Basis of Disability by Public Accommodations
and in Commercial Facilities,” 28 C.F.R. part 36,
(g) U.S. EEOC, “Regulations to Implement the Equal Employment Provisions of the Americans wit h
Disabilities Act,” 29 C.F.R. part 1630,
(h) U.S. Federal Communications Commission regulations, “Telecommunications Relay Services and
Related Customer Premises Equipment for Persons with Disabilities,” 47 C.F.R. part 64, Subpart F,
(i) U.S. ATBCB regulations, “Electronic and Information Technology Accessibility Standards,” 36
C.F.R. part 1194,
(j) FTA regulations, “Transportation for Elderly and Handicapped Persons,” 49 C.F.R. part 609,
(k) FTA Circular 4710.1, “Americans with Disabilities Act: Guidance,” and
(l) Other applicable federal civil rights and nondiscrimination regulations and guidance .
Section 16. Procurement. For Assignability
a. Federal Laws, Regulations, Requirements, and Guidance. The Subrecipient agrees:
(1 To comply with the requirements of 49 U.S.C. chapter 53 and other applicable federal laws, regulations, and
requirements in effect now or later that affect its third-party procurements,
(2) To comply with the applicable U.S. DOT Common Rules, and
(3) To follow the most recent edition and any revisions of FTA Circular 4220.1, “Third Party Contracting
Guidance,” to the extent consistent with applicable federal laws, regulations, requirements, and guidance.
State Requirements
Section 37. Special Notification Requirements for States.
a. Types of Information. To the extent required under federal law, the State, agrees to provide the following
information about federal assistance awarded for its State Program, Project, or related activities:
(1) The Identification of FTA as the federal agency providing the federal assistance for a State Program or
Project,
(2) The Catalog of Federal Domestic Assistance Number of the program from which the federal assistance for a
State Program or Project is authorized, and
(3) The amount of federal assistance FTA has provided for a State Program or Project.
b. Documents. The State agrees to provide the information required under this provision in the following documents:
(1) applications for federal assistance, (2) requests for proposals, or solicitations, (3) forms, (4) notifications, (5)
press releases, and (6) other publications..
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EXHIBIT E, VERIFICATION OF PAYMENT
This checklist is to assist the Subrecipient in preparation of its billing packets to State. This checklist
is provided as guidance and is subject to change by State. State shall provide notice of any such
changes to Subrecipient. All items may not apply to your particular entity. State’s goal is to
reimburse Subrecipients as quickly as possible and a well organized and complete billing packet
helps to expedite payment.
Verification of Payment –
General Ledger Report must have the following:
Identify check number or EFT number;
If no check number is available, submit Accounts Payable Distribution report with the
General Ledger;
In-Kind (must be pre-approved by State) and/or cash match;
Date of the report;
Accounting period;
Current period transactions; and
Account coding for all incurred expenditures.
If no General Ledger Report, all of the following are acceptable:
copies of checks;
check registers; and
paycheck stub showing payment number, the amount paid, the check number or
electronic funds transfer (EFT), and the date paid.
State needs to ensure that expenditures incurred by the local agencies have been paid by
Party before State is invoiced by Party.
Payment amounts should match the amount requested on the reimbursement. Additional
explanation and documentation is required for any variances.
In-Kind or Cash Match – If an entity wishes to use these types of match, they must be
approved by State prior to any Work taking place.
If in-kind or cash match is being used for the Local Match, the in-kind or cash match
portion of the project must be included in the project application and the statement of work
attached to the Agreement or purchase order. FTA does not require pre-approval of in-kind
or cash match, but State does.
General ledger must also show the in-kind and/or cash match.
Indirect costs – If an entity wishes to use indirect costs, the rate must be approved by State
prior to applying it to the reimbursements.
If indirect costs are being requested, an approved indirect letter from State or your
cognizant agency for indirect costs, as defined in 2 CCR §200. 19, must be provided. The
letter must state what indirect costs are allowed, the approved rate and the time period for
the approval. The indirect cost plan must be reconciled annually and an updated letter
submitted each year thereafter.
Fringe Benefits- Considered part of the Indirect Cost Rate and must be reviewed and
approved prior to including these costs in the reimbursements.
Submit an approval letter from the cognizant agency for indirect costs, as defined in 2 CCR
§200. 19, that verifies fringe benefit, or
Submit the following fringe benefit rate proposal package to State Audit Division:
Copy of Financial Statement;
Personnel Cost Worksheet;
State of Employee Benefits; and
Cost Policy Statement.
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MEMORANDUM
TO: Mayor and City Council
FROM: Chris Everson, Affordable Housing Development Project Manager
THRU: Hans de Roos, Capital Asset Director
DATE OF MEMO: August 3, 2020
MEETING DATE: August 11, 2020
RE: Resolution #63 of 2020: Burlingame 3 Modular Supply Agreement with
Guerdon LLC
REQUEST OF COUNCIL: Staff is requesting approval of attached Resolution #63 of 2020 and associated
Supply Agreement for factory construction and delivery of modular housing units for Burlingame 3.
PREVIOUS COUNCIL ACTION: In June 2019, Council directed staff to move forward with a
community outreach program aimed at preparing for construction of the Burlingame Phase 3 affordable
housing development. At the September 24, 2019 City Council work session, staff and the design team
provided a review of the outreach to that point, part of which included 96 surveys received from Burlingame
residents. One of the top 3 construction priorities from those surveys was mitigation of construction noise
and support for modular construction to reduce the duration of on-site construction.
DISCUSSION: Staff issued an RFP for Modular Housing Manufacturer on March 13, 2020.
The RFP was aimed at major residential/multifamily modular manufacture rs with the capacity to handle
the Burlingame 3 project and which are within approximately 750 miles of Aspen. On April 10, 2020, the
City of Aspen received proposals from three modular manufacturers, including the following bids:
Modular Manufacturer Location Proposal Total per square foot
Irontown Modular Spanish Fork, UT $19,198,880 $215.85
Nashua Builders Boise, ID $14,060,302 $156.65
Guerdon LLC Boise, ID $12,242,093 $136.30
The total cost proposed by both Nashua and Guerdon were under budget. Burlingame 3 would be the largest
project in Irontown’s history, and they were the high bidder. Nashua Builders were the next highest bidder,
and rather than proposing to build directly per the plans and specifications which were issued by the project
architect, 359 Design, Nashua proposed an alternate building methodology. Of the three, Guerdon’s price
was lowest, and Guerdon has the highest production capacity. Although all three manufacturers are highly
qualified (on future projects, we would be fortunate to be able to work with any of these firms), Guerdon is
known as one of the largest and most experienced in the industry.
The City’s evaluation team of 5 was made up of 3 staff members plus our architect and owner’s rep. One
key verification which the evaluation team needed to ascertain was whether the low bid by Guerdon was
fully inclusive of everything which is needed for the project, including a beneficial delivery schedule.
Below is a list of items which were further verified by the committee regarding the Guerdon proposal:
✓ Proposed to build directly based on the City’s plans and specifications
✓ Complete design services
✓ 2-Year Warranty Included
✓ Includes State of Colorado building code inspections
✓ On-site Project Site Supervisor provides on-site installation support at Burlingame Ranch
✓ Allows buyer to commission a third party quality assurance inspector in the factory
✓ Includes production of model units for testing sound and vibration
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✓ Delivery Schedule will facilitate project occupancy by summer 2022
✓ Responsible for freight management, shipping includes transportation insurance
✓ Financial stability, long standing history
For the reasons listed above and more, the evaluation team unanimously agreed that the City of Aspen
should select Guerdon and enter into a Letter of Intent to award the contract to Guerdon LLC so that the
engineering process at Guerdon’s factory could begin.
With this recommendation, the City Manager’s Office agreed to the attached Letter of Intent. This is a
customary part of the process in the industry, and in this case, the Letter of Intent provides the City of Aspen
with the assurance of being slotted into the Guerdon production queue for the necessary manufacturing time
slot needed to satisfy the project schedule. Also, the Letter of Intent allows for the engineering process to
begin, and the engineering team at Guerdon has been working for weeks now with the Burlingame 3 design
team to reach a point in the process often referred to as “design lock”, which assures the purchaser of the
precise designs which will be produced at the factory.
As part of the engineering collaboration which has taken place so far among 359 Design and Guerdon, it
has been necessary to refine the modular scope for work, which was bid based on the 100% Design
Development (DD) plans because the RFP was issued in March. The City’s ongoing design effort has since
concurrently advanced the project plans to the 90% Construction Documents (CD) level, and the 90% CD
plans were recently submitted with the building permit applications. (100% CD plans are typically issued
upon completion of the building permit application review and approval process.) To bring the modular
scope of work up to date, the three items listed below were added to the Guerdon scope of work and have
increased the total contract amount accordingly. It would have been necessary to add these items to the
scope of work if any modular manufacturer had been selected. The items added are as follows:
1. Microwave ducting to exterior: $24,928
2. Water heater supply treatment/filter $10,693
3. Two extra layers of gypsum wall board at party walls $51,866
Subtotal of items added since RFP/Proposal $87,487
Updated Contract Total $12,329,580
Transportation of the building modules from the factory to the project site is included in the contract total
in the amount of $1,054,568. It is important to note that this amount is subject to change based on conditions
at the time of shipment and will be updated based on the actual cost of shipment.
A video tour of the Guerdon facilities in Boise is available here. Not shown in the video: Guerdon has put
COVID-19 mitigation protocols in place at the plant, and to date they have been able to continue to operate
the plant with only minor inconveniences in the manufacturing process.
FINANCIAL/BUDGET IMPACTS: The proposed contract price is under budget. It is important to note
that this supply agreement is a large purchase commitment and will obligate the City of Aspen to the
payment terms included, and due to the up-front procurement of materials that Guerdon must invest in to
fulfill the order, the ability for the City to terminate the agreement without cause is not included in the
supply agreement.
By entering into this supply agreement, the City is committed to receiving the units to be delivered to the
Burlingame Ranch site based on the schedule included in the supply agreement. In the event that the City
must delay or re-schedule construction to the future, for one reason or another, the modular units will need
to be stored on site (or somewhere to be determined off site) until such a time as they can be installed at the
Burlingame Ranch project site.
53
Page 3 of 3
RECOMMENDED ACTION: If Council is fully committed to meeting the current project schedule, with
construction beginning in April 2021 through completion in summer 2022, then staff recommends that
Council approve Resolution #63 of 2020 and the Supply Agreement with Guerdon LLC.
CITY MANAGER COMMENTS:
ATTACHMENTS:
1) Resolution #63 of 2020
2) Supply Agreement with Guerdon LLC, including the following exhibits:
• Exhibit A – Product Specifications
o Exhibit A.1 – Modular Construction Specifications
o Exhibit A.2 – Interior Finish Matrix
• Exhibit B – Design Lock Plans
• Exhibit C – Plans: Completed After the Effective Date: Approved by AOR
• Exhibit D – Supply Agreement Price
• Exhibit E – Deposit and Payment Schedule
• Exhibit F – Guerdon Two (2) Year Limited Warranty
• Exhibit G – Scope of Work
• Exhibit H – Milestone Schedule
• Exhibit I – Insurance
• Exhibit K – Modular Unit Conformance Sign-Off
• Exhibit M – Water Commissioning Process
• Exhibit N – Supply Bonds
3) Guerdon RFP Proposal
4) Letter of Intent May 27, 2020
54
RESOLUTION #63
(Series of 2020)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND GUERDON 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 Supply
Agreement between the City of Aspen and Guerdon 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 the Supply
Agreement between the City of Aspen and Guerdon LLC, a copy of which is
annexed hereto and incorporated herein, and does hereby authorize the City
Manager to execute said Supply Agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 28th day of July, 2020.
Torre, Mayor
I, Nicole Henning, 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 July 28, 2020.
Nicole Henning, City Clerk
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5556 S Federal Way, Boise, Idaho 83716 | 1-208-345-5100 | www.Guerdon.com
Guerdon is the leading manufacturer of large-
scale, commercial modular construction projects
in the Western US.
Having constructed over 200 projects in the last
15 years, Guerdon’s team is unrivaled in their
experience, capacity and expertise.
AWARD-WINNING LEADER in Modular Technology
Guerdon’s innovative modular technology
combines on-site construction with
precise off-site factory assembly line production.
Located in Boise, Idaho, Guerdon is strategically
positioned on major transportation routes to
reach key markets throughout the Western US.
5.1 Introduction, Experience, References
229
430 unit apartment complex located next to Cisco’s campus
in Silicon Valley. Modular units were erected over a nearly
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Four story, 243 unit mixed-use residential LEED Platinum
development. Because of its transit-oriented nature, the
project won funding from the Infrastructure Infill Grant
Program of the California Department of Housing and
Community Development.
5556 S Federal Way, Boise, Idaho 83716 | 1-208-345-5100 | www.Guerdon.com
Domain
Union Flats
Coliseum
110 unit affordable housing development with 55 units
designated as affordable. The project is made up of
one five-story building and three two-story buildings.
To finance the project, UrbanCore used public sector
funding from the State, County and City.
An unparalleled portfolio of successfully completed commercial modular projects.
Union City, CA
REFERENCE:
V. Fei Tsen, President, Windflower Properties
415-379-0922 | fei@windflowerproperties.com
San Jose, CA
REFERENCE:
Jason Anderlite, Palisade Builders
650-810-6581
Oakland, CA
REFERENCE:
Michael E. Johnson, President, UrbanCore Development
510-350-7377 | mjohnson@urbancorellc.com
230
7KLVȴYHVWRU\XQLW+RPH6XLWHVE\+LOWRQLVWKHȴUVW
modern hotel built for Hilton using modular technology.
This three story, 52 unit affordable housing project was
EXLOWIRUD & SXEOLFEHQHILWFRUSRUDWLRQ7KHPXOWL
family development features a mix of 1, 2 and 3 bedroom
units for a range of income affordability levels.
5556 S Federal Way, Boise, Idaho 83716 | 1-208-345-5100 | www.Guerdon.com
Hilton Home2
Haciendas III
Yellowstone
Five, three-story lodges with a total of 410 guest rooms
located in Canyon Village, the highest and most remote
site in Yellowstone National Park. The project was
awarded after our successful completion of a 78 unit
employee residence servicing the Old Faithful visitor site.
Both projects were LEED Platinum.
An unparalleled portfolio of successfully completed commercial modular projects.
Salinas, CA
REFERENCE:
Starla Warren, President, Monterey County Housing Authority
831-775-5000 | swarren@hdcmonterey.org
So San Francisco, CA
REFERENCE:
Vijay Patel, Owner, Southern Hospitality
650-333-1886 | vhp@akshardi.com
Yellowstone, WY
REFERENCE:
Andy Stein, Architect, Baker Rinker Seacat
303-455-1366 | andystein@brsarch.com
231
Built to exacting standards and local building codes,
construction takes place in a climate controlled factory
on a ‘one-story’ assembly line, giving crews a superior
environment to focus 100% on constructing quality.
Rigorous plan reviews, a comprehensive four-tier QA/QC
process & in-plant monitoring by third party inspectors
ensures that every aspect of the factory build exceeds
anything found on traditional site-built projects.
Traditional schedules are shortened 30-40% with modular
units being constructed in the plant concurrent with dirt
work and foundations on-site.
When the site is ready to go vertical, finished rooms are
craned into place in a matter of days, rather than months.
Consistent factory production completing 4,000 to 5000
SF per day, shortens construction cycles, reduces delays
& puts more certainty into your construction schedule.
5556 S Federal Way, Boise, Idaho 83716 | 1-208-345-5100 | www.Guerdon.com
QUALITY
SCHEDULE
LABOR
Guerdon’s stable & reliable workforce provides a steady
supply of experienced skilled trades.
Labor challenges on-site are dramatically reduced when
40-70% of your project is completed off-site, in our
factory.
The continually rising costs of local labor especially
on prevailing wage jobs is limited considerably by the
reduced scope performed on-site.
Developers are embracing Guerdon’s Modular Technology to combat rising quality, schedule and labor challenges.
232
Precise production processes with tight tolerance
control geared for high quality multi-story
commercial structures.
5556 S Federal Way, Boise, Idaho 83716 | 1-208-345-5100 | www.Guerdon.com
Experience a smoother construction
process with the team who pioneered
commercial modular techniques.
Guerdon’s assemblies have higher STC
ratings and are noticeably more quiet,
unit-to-unit & floor-to-floor.
Faster to market means opening
for business earlier & generating
revenue sooner.
Gain greater control over
project quality, schedule & the
bottom line.
Production capacity to
produce up to a million
square feet annually,
meeting the demand of
the largest projects.
Construction is all about controlling risk. Modular
construction is a means of harnessing your exposure to
risk on a major portion of your project.
Our fixed price modular contracts lock in your control;
eliminating cost overruns & inflation on a major portion
of your vertical construction.
Reduce your risk, control your budget and open the doors sooner with Guerdon.
RISK CONTROL In addition to reducing quality control issues, schedule
delays & skilled labor shortages that are plaguing the
industry, modular construction also helps you mitigate:
• Inflationary Cost Increases
• Budget Overruns
• Safety Issues
• Weather Damage & Disruption
• Theft & Vandalism
• Material Shortages
• Escalating General Conditions
• Prolonged Borrowing Costs
233
Commercial modular industry veteran, John has experience as a Senior Operations Executive of a multi-
factory, multi-story builder of commercial modular buildings and as Senior Executive of a Canadian
multi-factory builder of modular single-family homes and recreational vehicles. As a licensed
General Contractor in multiple states, John has been involved in the design-build of numerous
large-scale modular projects throughout the USA and Canada. Over the past 35 years, his work
has included: military complexes, multi-family, hospitality, commercial and single-family projects
in addition to building nine complete Brigade complexes utilizing modular technology (apartment
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John Beddow, President & CEO
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for their projects. With nearly 40 years in the modular industry, he has a proven ability to work
through design challenges. His experience ranges from industrialized workforce housing design for
the oil and gas industries to multifamily/multistory wood frame construction projects. He has a
strong knowledge of architectural, mechanical, and plumbing systems and is our LEED and Green
Representative.
Mitch Hovaldt, Director of Engineering & Design
5556 S Federal Way, Boise, Idaho 83716 | 1-208-345-5100 | www.Guerdon.com
Guerdon’s team is led, in every discipline, by construction and modular industry veterans having substantial
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Page 1 of 2
MEMORANDUM
TO: Mayor and City Council
FROM: Chris Everson, Affordable Housing Development Project Manager
THRU: Hans de Roos, Capital Asset Director
DATE OF MEMO: August 3, 2020
MEETING DATE: August 11, 2020
RE: Resolution #68 of 2020: Lumberyard Affordable Housing
Conceptual Design Services, DHM Design Contract Extension
REQUEST OF COUNCIL: Staff is requesting approval of attached Resolution #68 of 2020 and
associated contract extension with DHM Design for the proposed continued scope of work for the
conceptual design process for the Lumberyard affordable housing project.
PREVIOUS COUNCIL ACTION: On June 24, 2019, Council approved Resolution #70 of 2019
and associated contract with DHM Design for initial community outreach and conceptual design
for the lumber yard affordable housing development for 2019. On April 14, 2020, Council
approved a contract extension for DHM Design which included an abbreviated conceptual design
scope of work to allow for the continued conceptual design while the COVID-19 Stay-at-home
Order was in place. At a work session on July 6, 2020, DHM Design presented their conceptual
designs, and Council provided the design team with direction for plan refinements.
DISCUSSION: From the start of the Lumberyard conceptual design process, the goal has been to
create community-vetted conceptual design alternatives for the development of affordable housing
at the Lumberyard property, and for Council to select a preferred conceptual design by December
2020. DHM Design was originally hired with an initial scope of work through 2019, but not with
scope for the entire process through the end of 2020. The continued scope of work proposed herein
includes the remainder of the conceptual design process as envisioned to reach the goal stated
above.
When the abbreviated conceptual design scope of work was undertaken in April, there were certain
elements of the conceptual design process which were tabled for later due to the COVID-19 Stay-
at-home Order. Technical studies related to geotechnical/soils, traffic impacts, noise and air quality
were tabled and are included in the proposed continued scope of work. An additional round of
community outreach and feedback was also tabled and is included in the proposed continued scope
of work as well. Two additional City Council work sessions are also proposed, one for presentation
of the technical studies and the results of the community outreach, and one for Council’s preferred
conceptual design selection, including any final refinements as needed.
The details of the continued scope of work proposed herein are the result of collaboration among
City of Aspen and DHM staff and is included in the attached proposal from DHM Design. Council
provided the design team with ample feedback and direction at the July 6 work session. The scope
of work proposed herein would have the design team modify the plans based on Council’s July 6
direction to move toward a 300-unit conceptual design (which is already in process using hours
remaining from the prior tranche of work) and go directly to additional community outreach to
seek community input on the evolved plans.
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Page 2 of 2
As shown in the schedule provided, the next round of community outreach will consist of 6 weeks
of web-based online feedback from September through October and a few (likely outdoor or
otherwise with appropriate distancing) physical community outreach events where possible. The
topic of engagement for the community outreach will be to seek input from the community based
directly on the plans which are being modified for alignment with Council’s July 6 direction to the
project team.
At the next Council work session for this effort, Council will be able to hear feedback from the
next round of community outreach along with the results of the technical studies. This will allow
Council to be fully informed when directing the next set of refinements to the plans. Staff
anticipates that Council will use the information provided to give direction to the team that will
allow the design team to make near-final adjustments to the plans. Upon return in late November
for a final work session on this topic for 2020, Council will be asked to make a final conceptual
design selection – although further refinements could be accommodated as needed.
At the final work session on this topic for 2020, staff will also seek direction from Council about
next steps for the project. (This direction may also be informed through the budget process which
will occur in October). With the conceptual design stage complete, Council could direct staff to
bring the plans up to an appropriate level for a development application and a land use entitlement
process in 2021.
FINANCIAL/BUDGET IMPACTS: All of the design team work on the project is billed hourly,
not to exceed the maximum contract value. The table below shows the history of the DHM
contract, as compared to the project budget to date:
DHM Contract Amount Approved by
Initial Contract $157,670 Approved by Council 6/24/2019
Addendum #1 $14,968 Approved by staff 1/10/2020
Addendum #2 $36,778 Approved by staff 2/10/2020
Addendum #3 $97,500 Approved by Council 4/14/2020
Addendum #4 $199,500 Proposed herein
Total $506,416
Approved Project Budget
2019 Approved Project Budget $175,000
2020 Approved Project Budget $400,000
Total $575,000
RECOMMENDED ACTION: Staff recommends approval of Resolution #68 of 2020 and
associated contract extension with DHM Design for the proposed scope of work.
CITY MANAGER COMMENTS:
ATTACHMENTS:
1) Resolution #68 of 2020
2) Exhibit A: DHM Design Contract Addendum 4: Continuing Services Scope of Work and
Fee, August-December 2020
3) Lumberyard Conceptual Design Project Schedule
259
RESOLUTION #68
(Series of 2020)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT AMENDMENT BETWEEN THE
CITY OF ASPEN AND DHM DESIGN AUTHORIZING THE CITY MANAGER
TO EXECUTE SAID CONTRACT AMENDMENT ON BEHALF OF THE CITY
OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a contract
amendment between the City of Aspen and DHM Design, 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 the contract
amendment between the City of Aspen and DHM Design, a copy of which is
annexed hereto and incorporated herein, and does hereby authorize th e City
Manager to execute said contract change orders on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 11th day of August, 2020.
Torre, Mayor
I, Nicole Henning, 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 August 11, 2020.
Nicole Henning, City Clerk
260
DENVER CARBONDALE DURANGO BOZEMAN WWW.DHMDESIGN.COM
311 Main Street, Suite 102 Carbondale, Colorado 81623 P: 970.963.6520
August 11, 2020
Chris Everson, Affordable Housing Project Manager
c/o City of Aspen
via email to: chris.everson@cityofaspen.com
RE: Community Outreach and Conceptual Master Plan Design for the Lumberyard Affordable Housing
Development – Contract Addendum 4: Continuing Services Scope of Work and Fee, August-December
2020
Chris:
We are glad to continue supporting the City of Aspen on the Lumberyard Affordable Housing Project. Based on
the direction of City Council on July 6, 2020, we are submitting our proposal for the continuation of the project
work plan for the remainder of 2020. This work plan continues to target the selection of a preferred master plan
by the end of the year. The original project team remains intact, with architects Charles Cunniffe Architects,
planner Robert Schultz Consulting, civil engineer Roaring Fork Engineering, and PR firm Manifest/Darnauer.
To meet the needs to technical research and evaluation, including traffic, noise and survey. Below is a
narrative scope of work, aggregate fees by task, and an outline schedule of activities through the end of 2020.
We are targeting early November for preferred master plan selection and have based our work plan and
associated fees based on that timeline. The overall proposed timeline is responsive to City Council’s desire to
reduce the total project timeline. For 2020, we have reduced the anticipated schedule by one month and have
added initial land use activities to the 2020 work plan. Longer-term the team is working to target ground-
breaking in 2024 instead of 2025; that schedule will be developed in greater detail as the project progresses.
Similar to our approach to the original scope of work we have estimated our hours for each task; we will
access the hours flexibly to be responsive to project needs, but will not exceed the top-set fee without prior
authorization from the City. Our team reached the end of the prior work scope with budget remaining; to
maintain momentum and schedule we have leveraged that remaining budget to begin work on the first steps of
the technical studies and master plan option revisions. This has been accounted for in our fee proposal and
timeline. We have provided a summary of the total project contract at the end of this document and have
accounted for the remaining fee values, from Addendum 3, in our Addendum 4 fee proposal. The services,
deliverables, and fee described below are in addition to the original contract amount and prior contract
addenda. We assume that this agreement will become Addendum 4 to the original contract.
Prior Scope of Work; Next Steps:
The prior contract addendum included tasks described in the master project schedule as “Task 6”, with
alterations to the original schedule as needed to advance the project responsibly during the ongoing pandemic.
Based on council feedback July 6th, we are narrowing the range of total potential units for the project to target
+/-300, and narrowing the site layout to focus on “Option B” of the 7/6 presentation materials. Additionally, our
efforts will study reduction of underground parking to understand the balance of unit count, site arrangement,
massing, and parking at the targeted numbers.
This scope of work also includes continuation of stakeholder, public, neighbor, and technical advisor outreach
and communication. We have formatted our scope of work to be responsive to the known public health
requirements, and to be flexible in adjusting to unknown, future requirements related to the pandemic.
The scope of work for Tasks 7 and 8 is detailed in the following pages.
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New Scope of Work: Tasks 7-8:
Task 7 – Refined plans and preliminary technical studies - August-September 2020
- Refinement of master plan alternatives per council feedback and direction during 7/6 council work
session. The team will continue to refine the building and site design and project program, focusing on
“Option B” and targeting +/-300 units. The studies will further develop the site and massing diagrams
to illustrate responsiveness to council direction. We will study two primary alternatives: (1) will target
the higher unit count, mitigating building mass with underground parking. (2) Will evaluate a reduction
in underground parking (focusing on at-grade, shared garages) with a reduction in total unit count to
mitigate building height and massing. Two overlays will also be carried forward: a modification to the
building layout along Sage Way to create a protected, internal courtyard, and a modification to the
building layout and type at the north end of the site to allow for shared-living studio format. An initial
phasing study will be developed for the two primary alternatives. Deliverables: Refined plan diagrams
and massing models; presentation graphics similar to those presented at the close of Task 6.
- Refinement of building and site program for each plan alternative. A series of tables were
developed in Task 6 to track unit data and project program. These tables will be revised with updated
unit mix for each alternative. Deliverable: Updated project data tables.
- Character and program imagery. Using precedent from other excellent housing developments, we
will develop packages of imagery related to building character, materials, site amenities, and other
unique or innovative program that will begin to tell the story of the project and how it will fit into the
community context of Aspen and the ABC neighborhood. These materials will be used initially in
neighbor and stakeholder outreach, and presented to council for feedback. We will continue to refine
the imagery package for use in the public outreach process in Task 8. Deliverable: Character imagery
package.
- Land use draft parameters. Our team will begin evaluating the alternatives against the land use code
and establishing preliminary land use parameters; this will support an understanding of the land use
implications related to each option. Deliverable: Draft land use review memo.
- Technical studies/data evaluation.
o Existing conditions site survey, including typical ex conditions collection. This will include surface
survey: property boundaries, topography, surface utilities, easements.
o Geotechnical soils. Our intent is to use a recent study performed on an adjacent property to inform
the geotechnical soils conditions at the master plan level. A project-site-specific geotechnical soils
investigation will be required later in the process.
o Noise. The team will establish a monitoring system to collect noise data specific to the Lumberyard
project site. This, along with historical data from the airport, will be used to evaluate the impacts of
highway and airport noise on the site and to generate preliminary recommendations for nuisance
noise mitigation.
o Utilities. Using the unit mixes developed for the refined options, we will coordinate with the relevant
utility providers to understand system capacity and identify thresholds related to the Lumberyard
development.
o Cost, constructability, and phasing. The project team will work with City staff and the City’s engaged
housing contractors to evaluate, at a conceptual level, order-of-magnitude cost for the project. We
will also identify preliminary phasing and constructability options/challenges.
o Energy efficiency. As a part of the refinement of architectural massing, we will establish preliminary
energy efficiency parameters for the buildings, with the intent of understanding the impacts on
massing, footprint, and site arrangement.
o Preliminary transportation study. A larger transportation study related to the ABC is underway and
sponsored by Pitkin County. We will engage with the consultant responsible for that effort, using the
baseline data results to inform the preliminary study for the Lumberyard. We have included time in
our scope for coordination with the County traffic study team. Although the Lumberyard study will be
project-specific, an understanding of the relationship between the two studies is necessary. The
project-specific study will include an evaluation of the impacts of the Lumberyard development to the
262
existing transportation infrastructure, and preliminary recommendations for multi-modal
transportation impact mitigation options for review and discussion.
o Air quality monitoring. Our team proposes working with the City’s Environmental Health department
to establish parameters for a planning-level air quality evaluation.
Deliverable: technical studies summary report, existing conditions survey, preliminary transportation
study.
- Stakeholder and TAC engagement. Direct and targeted stakeholder outreach has resumed, with
meetings and calls to specific neighbor groups and an email project update to the broader stakeholder
and TAC list. We have planned charrettes with selected stakeholders in August, during the design
refinement process. The project web site will be updated with current project information. Stakeholder
outreach will continue through Tasks 7 and 8. Deliverable: Summary notes from all stakeholder
meetings.
- Team meetings. Throughout Tasks 7, and 8, DHM will continue weekly check-in meetings with the
City project manager and, as the task progresses, include full team meetings as necessary to
coordinate the design and technical studies. Additionally, the team will schedule design review and
charrette meetings to advance the iterative building and site concepts. Deliverable: Team meeting
notes.
Task 7 technical studies (transportation, noise, utilities)*: $32,000
Task 7 existing conditions survey: $13,500
Task 7 design/planning team fee: $83,500
Task 7 Reimbursables: $1,000
Task 7 subtotal: $130,000
*The value for this line item includes the three listed technical studies. Other topics noted in the scope
narrative will be covered by the design/planning/City staff team. All topics noted in the scope narrative will be
summarized in the technical studies report.
Task 8 – Public outreach and preferred alternative selection - October-November 2020
- Stakeholder / neighbor outreach will continue in this phase, with targeted meetings with specific
stakeholders/neighbors, and email updates to the broader project database. We have also included
scope for team member attendance at up to six community group meetings. These may include the
AYPA, NextGen, CCLC, and others. The project web site will also be updated at this time.
- Public outreach. Using the refined massing, site study, and character imagery from Task 7, the team
will format and facilitate a series of public outreach activities. We recognize that in-person outreach is
difficult at this time, and that the availability of in-person outreach in September and October is
unknown. We have included scope for team participation in community events as a ‘pop-up open
house’ (up to two and where appropriate), and a public open house series of two meetings.
Additionally, regardless of the availability of in-person meetings, there will be members of the
community who will be uncomfortable or unable to participate in person, and that online engagement
will be necessary. We will host an interactive project webinar – that will also be available for viewing at
the public’s convenience – and will make the project materials and feedback tools available on the
project web site. This online engagement will run for approximately six weeks during the public
outreach period. Public outreach and stakeholder engagement will be summarized in an outreach
document similar to the prior two outreach summaries. Deliverable: Communications products and a
public outreach summary document; open house activities; project web site updates.
- Technical studies, continued. We have assumed that the duration of the technical studies will
extend into task 8, with early findings informing the evolution of the development alternatives, and the
summary report of preliminary technical studies supporting the selection of the preferred master plan.
- Council check-in meeting. Following the outreach activities, the DHM team will work with the City
project manager to format a presentation to City Council. We will present the refined design
alternatives, the results of the stakeholder engagement, results of the preliminary technical studies,
and other new information as developed during Tasks 7 and 8. The target outcome of this presentation
263
is to further narrow the direction for refinement and selection of the preferred alternative at the close of
Task 8, ideally with a clear preference for the preferred alternative. Deliverable: City Council
presentation materials.
- Refinements to master plan materials per stakeholder/TAC outreach, public feedback, and council
direction. The schedule presumes a short period of refinement and/or additional materials needed by
the council to select the preferred master plan, with one or two top alternatives advancing to final
selection. We will summarize the results of the outreach and update the presentation materials,
advancing one or two site plan alternatives to ‘final draft master plan’ format. The materials will also
advance the level of detail in character studies for the site and architecture, allowing the public and
council to understand and provide direction on the overall design aesthetic, amenities, and livability (at
a master planning level). Deliverable: refined alternative products (site plan, massing, character), and
project program materials.
- Project next steps 2021 (Land Use Application). To allow the team to continue seamlessly into the
Land Use Application in 2021, we will generate a work plan, scope and budget for the development of
the land use application. This work plan will identify the tasks, schedule, and deliverables associated
with submitting the land use application in the latter half of 2021. Deliverable: Work plan, schedule,
and budget for 2021 land use application.
- Land Use Application framework. The team will refine the land use evaluation memo with current
project information, and will develop an outline for the land use application in support of the overall
project work plan. This will include land use parameters and submittal requirements. If the process to
date has resulted in a clearly preferred program, it may be appropriate to schedule a pre-application
meeting at the close of Task 8 to formally identify the land use application requirements. Deliverable:
land use application approach summary memorandum.
- Council meeting: selection of preferred master plan. The team will present the final master plan
alternatives to city council and request selection of a preferred master plan, including building and site
design concepts and project program. Deliverable: City Council presentation materials.
Task 8 technical studies allowance (transportation, noise, utilities): $11,000
Task 8 design/planning team fee: $87,500
Task 8 Reimbursables: $1,000
Task 8 subtotal, including allowances: $100,000
Fee Summary
Task 7: $130,000
Task 8: $ 99,500
Less budget remaining from Task 6: $- 30,000
Total Continuing Services Addendum 4: $199,500
Lumberyard fee summary to date (including reimbursables):
Original contract: $157,670
Addendum 1: $ 14,968
Addendum 2: $ 36,778
Addendum 3: $ 97,500
Addendum 4: $199,500
Project total through addendum 4: $506,416
Attachments: Task 7 & 8 project schedule.
264
Additional Services: Should additional services become necessary due to phasing and/or major design
changes due to reasons beyond the control of this office, this work will be done on an hourly basis. If this work
becomes significant we may, at your request, submit a proposal at that time which will identify the extent of any
additional work prior to commencement of the work.
Acceptance: This agreement may be terminated at any time by the Owner or DHM Design Corporation upon
giving (7) days written notice. Work performed up to the date of termination shall be due and payable and shall
be included in the final statement. This agreement, unless previously terminated by written notice, shall be
terminated by the final payment for the finished work.
Please do not hesitate to call with any questions as you review this letter. We look forward to continuing our
work with you on this project.
Respectfully,
DHM Design
Jason Jaynes Owner or Authorized Representative Date
Managing Principal, dhm design
265
7/6-7/107/13-7/177/20-7/247/27-7/318/3-8/78/10-8/148/17-8/218/24-8/288/31-9/49/7-9/119/14-9/189/21-9/259/28-10/210/5-10/910/12-10/1610/19-10/2310/26-10/3011/2-11/611/9-11/1311/16-11/2011/23-11/2711/30-12/412/7-12/1112/14-12/1812/21-12/2512/28-1/01Council Work Session (tentative 10/26)
Aspen Lumberyard Affordable Housing
T A S K S
Outreach and Conceptual Master Plan Working Project Schedule July
29, 2020
6. Refined Site Plans Massing - March-June (complete)
- Existing conditions survey
- Geotechnical soils report review (neighboring property)
Refinement of building and site prgram
- Traffic/transportation study 1
Technical studies
Land use draft parameters
Character and program imagery
- Utilities evaluation
Sep-20 Oct-20 Nov-20 Dec-20Jul-20 Aug-20
Land use application framework and project next steps / 2021 work plan
Council check-in - select preferred master plan
8. Preferred Master Plan Selection - October-November
Team preparation for master plan selection meeting
7. Refined Plans for Selection of Preferred Alternative - Aug-Sept
- Noise impact study
- Air quality evaluation
Stakeholder, neighbor, TAC outreach
Refinement of master plan alternatives
Council check-in #4
Stakeholder, neighbor, TAC outreach
Public outreach (web)
Stakeholder/public outreach summary report (draft, final)
Public outreach (physical)
Refinements to master plan materials per outreach and council
266
1
RESOLUTION NO.069
(Series of 2020)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
SUBMITTING TO THE ELECTORATE OF THE CITY OF ASPEN A CERTAIN QUESTION
AT THE NOVEMBER 3, 2020, GENERAL ELECTION.
WHEREAS, the City Council desires to place before the electorate of the City of Aspen
certain ballot questions; and
WHEREAS, the City Council is authorized pursuant to Section 5.7 of the Aspen City
Charter to, on its own motion, submit questions to a vote of the electorate; and
WHEREAS, the election provisions of Article X, Section 20(3) of the Colorado
Constitution requires that certain financial ballot issues be decided only in a state general election,
biennial local election, or on the first Tuesday in November of odd numbered years.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO, THAT:
Section 1.
The following question shall be submitted to the electorate at the November 3, 2020,
general election:
CITY OF ASPEN – EXTENSION OF EXISTING 0.3% SALES TAX FOR
EDUCATIONAL PURPOSES.
SHALL THE CITY OF ASPEN’S EXISTING 0.3% SALES TAX FOR EDUCATIONAL
PURPOSES, WHICH IS SCHEDULED TO EXPIRE ON DECEMBER 31, 2021, BE
EXTENDED THROUGH DECEMBER 31, 2026; AND SHALL THE REVENUES FROM SUCH
SALES TAXES AND THE EARNINGS THEREON BE COLLECTED, RETAINED AND
SPENT AS A VOTER-APPROVED REVENUE CHANGE WITHOUT LIMITATION UNDER
ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION (TABOR) OR ANY
OTHER LAW?
YES ____
NO ____
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INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the
day of , 2020.
___________________________
Torre, Mayor
I, Nicole Henning, 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.
__________________________
Nicole Henning, City Clerk
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MEMORANDUM
TO:Aspen City Council
FROM:Sara Ott, City Manager
MEMO DATE:August 5, 2020
MEETING DATE:August 11, 2020
RE:Resolution #069, Series of 2020, authorizing a Ballot Issue
for the Extension of a .3% Sales Tax for Educational Purposes
REQUEST OF COUNCIL: At a June joint work session with the Aspen School Board,
Council considered a proposal to place a ballot issue before voters that would extend the
.3% sales tax for educational purposes for an additional five years. Council directed staff to
present a resolution for consideration that would place this issue on the ballot at the election
scheduled for November 3
th.
DISCUSSION: This tax generates funds that are used for educational purposes as set
forth in an IGA between the City of Aspen and the Aspen School District. A copy of the IGA
is attached. The original approval of this sales tax was for four years from January 1, 2013
through December 31, 2016. The school has requested that it be extended for five years
with a sunset of December 31, 2021. In preparation for that sunset, this renew ballot would
ask voters to continue the tax for an additional 5 years. If the extension passes, the IGA
pursuant to its own terms would remain in effect. The City Administration wishes to review
the IGA with the School Administration to refine some details should the tax continue.
Approximately 75% of school district students are from the Aspen-area. The funds collected
from this tax are used in line with the ballot language.
FINANCIAL IMPACTS:
This tax has generated the following revenues in recent years.
2016 $2,145,825
2017 $2,177,656
2018 $2,274,410
2019 $2,460,393
The City of Aspen retains a small fee to cover the city’s costs of collection, auditing and
remittance of this tax.
RECOMMENDATIONS: Staff recommends Council approve Resolution # 069, Series of
2020
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SPECIAL MEETING ASPEN CITY COUNCIL JULY 27, 2020
At 4:00 p.m. Mayor Torre called the special meeting to order with Councilmembers Richards, Mesirow,
Mullins and Hauenstein joining via video conference.
ORDINANCE #12, SERIES OF 2020: Face Covering Zone
Jim True presented Ordinance #12 to council, which would amend Ordinance #11, section 2 to add a
face covering zone. Face coverings would be mandated at all times outdoors. The exceptions would be
under two years old or some type of medical impairment. There are proposed zones which are in the
packet and council will decide on which zone is appropriate.
Mayor Torre mentioned exceptions for eating or drinking. Mr. True said this does not have an exception
for eating and drinking while outside.
Councilman Hauenstein said that last week we included bars, but that was when open, so he would like
a clarification on a “bar”. Mr. True explained that a bar is that of which has limited food service.
Councilwoman Mullins said it’s important to open up the ordinance to language which allows for eating
and drinking on the mall when purchasing from places like the frozen yogurt shop. She’s interested in
the survey results and said she’s heard that most people support extending this to the city limits.
Mayor Torre clarified what “river to river” means and said that covers anyone on a bike and in the west
end walking down the street, etc. Councilwoman Mullins said yes, it was presented as zone 3 in the
memo.
Councilman Mesirow asked about people working out on a bike or running through the zone. Mr. True
said if anyone is passing through the zone, they must have on a mask.
Councilwoman Richards said she is in favor of city limits.
Alissa Farrell went over the survey results.
Trish Aragon went over the mask zone pavement markings and cost. Zone 1 is the least expensive area.
Councilman Hauenstein said he likes the everywhere,every time concept regarding high density public
areas. He can’t imagine wearing a mask while bicycling, however. His preference is for zone 2 extended
to Newberry park and eliminating the 10 min rule.
Mayor Torre asked about the Highlands Base area.
Councilman Hauenstein said he would add an exemption for pedestrians in the Highlands area. He
would also make an exemption for eating or drinking on the mall because you can’t eat through a mask.
He would extend this to the beginning of next year, or at least into October.
Councilwoman Mullins said she would go stricter than less strict and said she’s still pushing for city
limits. She supports an extension through September/October as well but thinks more exemptions will
just muddy this. People can use common sense.
Councilwoman Richards said she also prefers city limits because it makes it simpler. She feels as though
they’ve let people down and they need to do the right thing.
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Mayor Torre said he was in favor of the mall area, but then thought zone 2 made sense. He thinks a
citywide mandate is a little much when someone is in their own front yard and is required to have on a
mask.
Richard Pryor, Police Chief, said the enforcement is the million-dollar question. He said that due to the
exceptions and the ordinances passed, there are a lot of challenges on enforcement. We know we are
not going to achieve 100% compliance. The bigger the zone, the more challenging this is going to be. We
still only have a few officers to police the entire town.
Councilman Mesirow said the end of September or October, to get through the summer surge, is fine
with him as far as a timeline.
Councilman Hauensteinstill thinks it should go through the end of 2020. He does think that having
people wearing a mask on your own property seems like too much. He does value individual freedoms.
Mayor Torre said that Jim will prepare the ordinance to include city limits and another that doesn’t.
Mr. True said this would change the regulations for the golf course too.
Councilman Hauenstein motioned to read Ordinance #12, Councilman Mesirow seconded. Roll call vote:
Hauenstein, yes; Mesirow, yes; Mullins, yes; Richards, yes; Torre, yes. All in favor, motion carried.
Ms. Henning read Ordinance #12, Series of 2020.
Mayor Torre has questions about mandating the entire city and feels we might be diluting our message
here. He will need some answers before making a decision tomorrow.
Councilman Hauensteinmotioned to adopt Ordinance #12, with the following provisions: the mandate
be in effect until November 1st, zone 2 as depicted in the packet and extended to Herron Park and
Highlands Base area. He said there will be an exemption for removal of masks of people who are
stationary and eating and we will eliminate the 10 min rule. Councilwoman Richards seconded.
Councilwoman Mullins offered the friendly amendment of considering city limits instead of zone 2
because it’s a cleaner message and easier way to message to visitors coming in on 82. She’s going for
simplicity.
Councilwoman Mullins asked Councilwoman Richards why she is comfortable with the modification.
Rachel said she wants to reach a consensus in the group, and she took Ward’s comments seriously and
we can tighten up from here if we need to.
Mr. True said he’s confused because we are defining this as all public places, not private yards and
properties.
Councilman Hauensteinaccepted Councilwoman Mullins’ friendly amendment and Councilwoman
Richards accepted as seconder.
Mayor Torre said we are setting up for difficulty in compliance on this.
Roll call vote: Hauenstein, yes; Mesirow, yes; Mullins, yes; Richards, yes; Torre, yes. All in favor, motion
carried.
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Mayor Torre said this is tough stuff and unprecedented.
Councilwoman Mullins motioned to adjourn, Councilman Hauenstein seconded.
Roll call: Hauenstein, yes; Mesirow, yes; Mullins, yes, Richards, yes; Torre, yes. All in favor, motion
carried.
______________________
Nicole Henning, City Clerk
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REGULAR MEETING ASPEN CITY COUNCIL JULY 28, 2020
At 5:00 p.m. Mayor Torre called the regular meeting to order with Councilmembers Richards, Mesirow,
Mullins and Hauenstein joining via video conference.
CITIZEN COMMENTS:
Denise Oberman: Ms. Oberman said she is a resident of California and summers in Aspen. She
commended council for their commitment to public safety and health. She is addressing the mask
requirement and compliance and wanted to comment on a related item having to do with public safety
on trails and in parks. She said everyone 10 years and older should be wearing a mask. There should be
some sort of compliance mechanism. Education was a failure in California, and she doesn’t want to see
replicated here. Mayor Torre asked her about which trails specifically have been a problem. She said
Hunter Creek, Smuggler and the Ute have all been pretty bad.
Justine Cunningham: Ms. Cunningham said she is a scientist and toxicologist who works on viruses. She
said this virus is readily and highly contagious and transmitted through the air and touch on surfaces.
Regarding the trails, she has been surprised by the degree of negligence. The trails become very narrow
and challenging when passing people. This is a win win for all of us to try at this time to extend an effort
of wearing our face coverings. She says people are not wearing the masks at all. She said that aerosol
transmission can occur outdoors as well as indoors.
Lee Mulcahy: Mr. Mulcahy said he is a citizen in Aspen who votes here. Ed Snowdon is a whistleblower
living in Russia. This virus is harmful and we need to remember this from a perspective of a free society.
The destruction of our rights is permanent. He is grateful for many things. He encourages council to seek
out another path so this mask ordinance doesn’t force him to wear a mask in his own front yard or
neighborhood. He doesn’t want to go get his mail with a mask on. The Rio Grande trail is huge, and he
doesn’t want to have to wear a mask when he’s biking into town. Five years ago, a private home was
destroyed in Greenwood. The federal court denied this family funds to fix the home and the supreme
court won’t hear the case. There are a lot of unconstitutional things going on and mentioned his case
with APCHA.
Toni Kronberg – Ms. Kronberg complimented the city on the new street scapes and said there should be
a design contest amongst restaurants. The one-way street in front of Wheeler, is now a lot safer.
Steamboat and others have seen their tax revenues come up, so kudos to that. Kudos on the marathon
work session last night. Excellent job. She mentioned the Galena Plaza and the open space. She said
open space should be open to the sky. Mayor Torre told her to send her comments via email and please
attend the work session regarding Galena Plaza.
COMMISSIONER COMMENTS:
Councilman Hauenstein said that Lee’s comments about Snowdon are not germain to tonight’s
comments. There are documentaries that document what he did and how our individual freedoms are
under attack from our own government. Everyone should watch and become informed about Snowdon.
We need to be cognizant of this. It’s a balancing act with the COVID situation between freedom and
public safety. We are not trying to take freedoms away. It is vitally important that we guard against the
loss of our freedoms. We at the council table are so conscious of this. He was at a gathering on the
beach earlier and people in Maine are sharing all the same concerns as we have back in Aspen. All
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emails he read today said they wanted a face coverings ordinance passed. We are all dedicated to our
health and safety and it is not a political statement.
Councilwoman Mullins thanked Torre for his comments about stress. She has seen more confrontational
behavior on trails and in grocery stores, etc. The unknowns create a lot of stress and anxiety. She’s been
proud of the people in Aspen so far, but she wants to stress that we need to keep having patience. Your
good day is someone else’s worst day. Be aware. It’s unprecedented and a social experiment. Denise,
thank you for your public comment regarding the trails. She hiked Lost Man trail this past weekend and
it was one of the most beautiful hikes taken in years. The wildflowers were beautiful and it helps clear
your head and you can come back somewhat renewed. We will get through it.
Councilwoman Richards dittoed the appreciation for our citizens. These are stressful times and likely to
last a lot longer. She doesn’t want to be the wet blanket on optimism, but there are professionals saying
to close the country back down again and others saying masks are the new normal. We all like to think
this will go away. The more fatigue we have with this, allows us to indulge in magical thinking. A real
danger in the fatigue of the pandemic, is the desire to rip the mask off, etc., but we can’t go there. The
freedom to be healthy is important right now.
Councilman Mesirow agrees with the others and said there needs to be a balance between liberties and
collective safety. He’s been going back and forth on the mask mandate. Thinking back to the meeting
about banning firearms on city property, and said he’s been guilty of looking at the mask issue from a
certain perspective. The fear that this engenders is a real thing and has an effect on mental wellbeing.
He has the pleasure and dread of running his first Audi Power of Four this weekend.
Mayor Torre said we are still doing really well in our efforts. Cooperation, collaboration, some relaxation
is needed during these difficult times. He’s chatted with people in restaurants and retail and said it’s a
real added challenge to deal with all of this on top of it.
CITY MANAGER COMMENTS:
Sara Ott said there will be a new public health order this Friday from Pitkin County and there will be the
removal of the 10 min exemption. Anytime you’re within 6 ft of someone, you should have on a mask.
Groups should be 10 people or less for informal gatherings. She mentioned a data analysis team, which
is building capacity to narrow in on trends and data and she saw some reporting today. The county is
doing a great job on the more tangible items. The county is reporting that the average of new cases per
day, and this week is lower than last week, which is a little bit of good news. Our other counties are
going the opposite way right now, and she will follow up with county manager to talk about trails
regarding ticketing and warnings. She said tonight on the consent agenda, is the MMOF grant and asked
that council please just consider accepting the grant itself. We will come back for a full conversation on
funding at a later date.
BOARD REPORTS:
Councilwoman Mullins said she went to the CORE meeting last Thursday for Ward and it was their
retreat, which held a lot of info.
Councilwoman Richards mentioned that Club 20 will have a meeting with their board of directors for the
ballot in November. Councilwoman Mullins said she would be happy to sit in for Rachel on a meeting.
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Mayor Torre said ACRA met this morning and discussed the census. We still have work to do. We also
discussed what the off season is going to look like this year. Board of Health met last week and there
were changes to the health order, group sizes, 10-minute limit, etc.
CONSENT CALENDAR:
Councilwoman Mullins made a comment regarding Resolution #057, and thanked John Krueger and his
team. They continued to go after grants and did a good job. We are approving this tonight, but it’s not
the final step. It helps the city enormously.
Councilman Hauenstein also commented on Resolution #057 and encouraged people to watch the work
session on this. He said what is planned for this intersection is a huge improvement.
Councilwoman Mullins motioned to approve the consent calendar; Councilwoman Richards seconded.
Roll call vote: Hauenstein, yes; Mesirow, yes; Mullins, yes; Richards, yes, Torre, yes.
ACTION ITEMS: Ordinance #12, Series of 2020 – Mandatory Face Covering Zone
City Attorney, Jim True, explained the Ordinance to council. He said last night council voted to approve
with amendments. He has drafted language that may be acceptable to at least four members of council.
There is an interest to have a mandatory zone that is less than the entire city boundaries, and he has
different versions to satisfy all options.
Councilman Hauenstein noticed there wasn’t a section on exercise. Mr. True said there wasn’t a
consensus, but he expected the conversation to occur. He did include an exception for automobiles and
people with family members.
Councilwoman Richards said she is taking a hard look at boundaries. She doesn’t think exerciseshould
be an exemption. She wants this to be as black and white as possible. She would suggest an end date of
November 4
th.
Councilman Mesirow said we should add molly Gibson Park which has been very active throughout
quarantine as well.
Mayor Torre said he is fine with keeping the zone as tight as possible.
Councilman Hauenstein moved to adopt Ordinance #12, Series of 2020 with the amendment of zone 2
including Heron Park, Newberry Park and the Highlands area, and a November 4
th end date;
Councilwoman Richards seconded.
Councilwoman Richards clarified the commercial center and transit center of Highlands. Mr. True said
Newberry Park is already in the zone and we would only be adding Heron Park.
Mr. True showed the red lined version on screen for council and clarified the stipulations.
Councilman Mesirow said he really doesn’t have an opinion on exercise, and he’s not supporting it at
this point. He said he exercises every day and lives within the zone and for that part of his run, he will
wear a mask and this seems reasonable to him and a reasonable request of others.
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Councilwoman Mullins’ goal was to pass a much more restrictive ordinance, but after reading Richard’s
notes on enforcement and numerous citizen comments on the subject, she will support the smaller
zone. It’s important that we move forward with this and bite the bullet. She supports the amended
zone. She said staff should move forward coming up with a proposal and get ready for Friday activation.
Trish Aragon explained the road markings for tourists coming into town, so they are aware of our new
mask law.
Mayor Torre described the base of Aspen mountain to the river, the corridor running from Aspen street
to Original and then the Highlands base area as being within the zone. Mr. True said this includes all
right of ways of both streets as well.
Roll call vote: Hauenstein, yes; Mesirow, yes; Mullins, yes; Richards, yes; Torre, yes. All in favor, motion
carried.
Mayor Torre said there will be a commencement date of Friday and termination date of November 4
th.
Councilwoman Richards motioned to adjourn, Councilman Mesirow seconded.
Roll call vote: Hauenstein, yes; Mesirow, yes; Mullins, yes; Richards, yes; Torre, yes. All in favor, motion
carried.
______________________
Nicole Henning, City Clerk
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MEMORANDUM
TO:Mayor and City Council
FROM: Steve Hunter, Utilities Resource Manager
Drought Response Committee (DRC)
THROUGH:Tyler Christoff, Director of Utilities
MEMO DATE:08/03/2020
MEETING DATE:08/11/2020
RE:Ordinance # 10 Series 2020Amend Chapters 25.28, Water Shortages of the
City of Aspen Municipal Code.
________________
REQUEST OF COUNCIL:Staff requests approval of first reading of Ordinance #10, adopting
updates to Title 25, Chapter 28 – Water Shortages municipal code revisions attached as Exhibit
A. These changes would work in concert with the City’s Drought Mitigation and Response Plan
(DMRP) to provide a strategic response to water shortage conditions. Council adopted the DMRP
on July 28, 2020.
PREVIOUS COUNCIL ACTION: The City adopted its water shortage policy through an Ordinance
of the Municipal Code. The Water Shortage Ordinance (Chapter 25.28) was originally developed
in the 1980’s. This Ordinance has been amended periodically to update definitions, water
reduction targets and violations.
Council has enacted the Water Shortage Ordinance three times since adoption. Council
declared a Stage I drought in both 2002 and 2012. In 2018 both a Stage I & Stage II Water
Shortage was declared. Temporary water use curtailment and rate increases were enacted
under previous declarations.
In 2019, Council adopted an ordinance and updated the municipal code to strengthen the
definition of water waste and the enforcement against wasting water during all times, not only
under shortage conditions. Additionally, Council directed staff to create operating methods,
policy, and regulations that supported conservation practices. At the time, Council requested a
unified policy outlining the City’s response to water shortages.
On July 14th, 2020 City Council officially adopted resolution #9 declaring stage one water
shortage for the City of Aspen. At this time City departments immediately implemented water
conservation efforts. In addition, City staff has begun public education and outreach on drought
conditions and what residents and visitors can do to help conserve water.
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BACKGROUND: Aspen’s municipal water supply comes primarily from Castle and Maroon Creeks.
Unlike many community supplies, the Aspen water system has very little water storage, relying
primarily on direct streamflow. This system does not allow the controlled release of water to
match water demand. Instead, it depends on the consistent release of water from snowmelt.
During drier than normal years, runoff conditions may not match the timing of the City’s typical
demands, and reductions in typical water usage may be necessary. During these conditions, the
City’s water policy enables Council to enact its Water Shortage Ordinance by selecting an
appropriate water shortage stage.
DISCUSSION: The proposed updates to municipal Code Chapter 25.28 outlined in this memo
support the Drought Mitigation and Response Plan (DMRP) and allow a coordinated response
to future water shortages in Aspen. The following amendments were made to code chapter
25 and are outlined in Exhibit A:
Relocated the “Wasting of Water” narrative into same section as “Water
Shortage” and renamed as “Water Management”
Removed all “Staged Response” details from the code and placed them in the
DMRP
Added promulgation of Rules and Regulations under a shortage declaration
Restructured fees for violation to include increasing fees for each water
shortage stage
Restructured surcharge section to support flexibility
These updates allow the DMRP and City of Aspen code language to work in concert to provide
a coordinated and strategic response to future water storage conditions. City code language
covers regulatory, enforcement, and rate response while the DMRP addresses drought
indicators, outreach, and the community’s hierarchy of need. The complementary nature of
these documents allows a staff to take a more wholistic approach to drought response in the
future.
ENVIRONMENTAL IMPACTS:A city-wide reduction in typical water usage will help reduce the
negative impacts to the agricultural, recreation, and aquatic habitat communities along the
Roaring Fork River. This would not occur if water restrictions were not enacted. Public safety
concerns resulting in increased wildfire and drought related hazards, as well as negative
economic impacts are also expected to occur if conditions persist.
STAFF RECOMMENDATION: Staff recommends approval of Ordinance #10, Series
2020, which adopts updates to Title 25, Chapter 28 – Water Shortages municipal code revisions
attached as Exhibit A.
CITY MANAGER COMMENTS:
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ATTACHMENTS:Exhibit A – Ordinance #10 Series 2020
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ORDINANCE NO. 10
Series of 2020
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, TO
AMENDCHAPTERS 25.20.020,WASTINGOF WATER, AND 25.28,WATERSHORTAGES,
OF THE MUNICIPAL CODE.
WHEREAS,theCityCouncilhasa currently adoptedwater shortage policytoaddressashortage
initssupplyofwater that this ordinance further refines and additionally provides a framework for
sustainable water use during drought conditions; and
WHEREAS, this policy maintains essential public services to preserve public health and
safety, environmental resources, and economic activity during all drought stages; and
WHEREAS, Aspen’s water supply is highly dependent upon snowpack and snowmelt
runoff with no current storage and a large dependence on streamflow availability at its river
diversion points; and
WHEREAS, this ordinance provides guidance to prepare for, and respond to, drought
conditions with transitions and action steps within the varying drought stages.
WHEREAS, the City Council finds that this ordinance furthers, and is necessary for, the
promotion of the public health, safety, and welfare.
NOW, THEREFORE,BE ITORDAINED BY THE COUNCILOFTHECITY OF
ASPEN, COLORADO:
Section 1.
ThatSection25.20.020oftheMunicipalCodeoftheCityofAspen,Coloradowhichsets
forth wasting of water prohibited, is herebydeleted in its entirety.
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Section 2.
That Section 25.28 of the Municipal Code of the City of Aspen, Colorado which sets
forth water shortages applicability, is hereby repealed and replaced as follows:
Chapter 25.28. - WATER MANAGEMENT
Sec 25.28.010. – Purpose.
The City is committed to sustainability and providing a quality potable water supply to the
community. The efficient use of the City’s water resources as identified in the City's municipal
water efficiency plan assures an adequate water supply for municipal water customers for all
municipal purposes. The City supports and promotes the wise use of water under all conditions
to help preserve essential public services and minimize the adverse effects of a water supply
emergency on public health and safety, economic activity, environmental resources, economic
activity, and individual lifestyles. When water shortages occur, restrictions on the use of water
are imposed in order to protect the health and safety of citizens and property owners.
Sec. 25.28.020. - Wasting of water prohibited.
It shall be unlawful for any person using water from the City water system or any system
connected thereto, to waste water. For purposes of this Section, to waste water shall mean any of
the following:
(a) The unnecessary running of water, which is not applied to any beneficial use, through
or out of any water closet, lavatory, urinal, bathtub, hose, hydrant, faucet or other fixture,
appliance or apparatus whatsoever, through the neglect or by reason of faulty or imperfect
plumbing or fixture; or
(b) Applying more water than is reasonably necessary to establish and maintain a healthy
landscape, including but not limited to, the continuous application of water to lawns, sod,
landscaping, or amenity resulting in oversaturation, ponding, pooling, or the flowing of
water into drainage or storm drainage facilities; or
(c) Watering with spray irrigation between the hours of 8.00 a.m. and 6.00 p.m. during the
period from May 1 to October 1, except for the following uses:
(1) Watering for up to twenty-one (21) consecutive days to establish irrigated turf from
seed or sod;
(2) Watering new plant material on the day of planting (e.g., flowers, trees, and shrubs);
(3) Watering that is essential to preserve irrigated or artificial turf subject to heavy
public use;
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(4) Operating an irrigation system for installation, repair, audit, or reasonable
maintenance, if the system is attended throughout the period of operation;
(5) Watering where tree preservation is required under the local tree ordinance; or
(d) Watering landscaped areas during precipitation or high wind; or
(e) Applying water intended for irrigation to an impervious surface, (e.g., a street, parking
lot, alley, sidewalk or driveway); or
(f) Failure to repair an irrigation system unit which is known to be leaking; or
(g) Failure to use covers for outdoor pools or hot tubs; or
(h) Using water instead of a broom or mop to clean outdoor impervious surfaces (e.g.,
sidewalks, driveways, and patios), except when cleaning with water is necessary for
public health or safety reasons or when other cleaning methods are impractical and in
which case the hose must be equipped with an automatic shut-off nozzle; or
(i) Washing vehicles with a hose that lacks an automatic shut-off nozzle; or
(j) Violation of restrictions imposed in connection with a declared water shortage per
Chapter 25.28.030.
The prohibitions against wasting water are applicable regardless of whether a water shortage
has been declared or a system emergency exits. Additional restrictions during times of a declared
water shortage may apply pursuant to Chapter 25.28.030.
(Code 1971, § 23-151; Ord. No. 27-1985 , § 1; Ord. No. 37-1991 , § 5; Ord. No. 24-2019 , § 1,
11-26-2019)
Sec. 25.28.022. - Exceptions.
The following activities do not constitute the wasting of water for purposes of Section
25.20.020:
(a) Flow resulting from firefighting or routine inspection of fire hydrants or from fire
training activities; or
(b) Flow resulting from routine inspection, operation, or maintenance of a utility water
system; or
(c) Water applied as a dust control measure; or
(d) Water used for construction or maintenance activities where the application of water is
the appropriate methodology and where no other practical alternative exists; or
(e) Street sweeping; or
(f) Other watering activities reasonably necessary to protect public health or safety.
(Ord. No. 24-2019 , § 1, 11-26-2019)
25.28.030. - Water shortage declaration.
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(a) A water shortage shall be declared upon a finding by the City Council that the City is facing
a shortage in its supply of water due to drought, system capacity, or any other cause. Such a
finding shall be made by resolution.
(b) The provisions of this Chapter shall apply to the use of the treated water supply, pressurized
and non-pressurized raw water, and reuse water of the City to the extent any City-customer
agreements provide for curtailment of water use or suspension of water delivery during water
shortages or emergencies.
(c) The City Council shall regulate the water service usage in accordance with subsection (a) of
this section through adoption by resolution of a “drought mitigation and response plan”, which
shall be prepared and maintained by the Aspen Utilities Department.
(d) The City Manager shall promulgate rules and regulations to implement the response plan as
appropriate to address the water shortage declared by City Council. Such rules and regulations
may include exemptions, as deemed appropriate by the City Manager.
(e) When the resolution finding a water shortage is approved, the plan set forth in the rules and
regulations shall be implemented. Such rules and regulations shall have full force and effect
and shall be enforceable until such a time as the water shortage is found by City Council to
have ended. It shall be an additional responsibility of the Utilities Director, under direction of
the City Manager, to ensure that the measures described in the rules and regulations are carried
out and to provide sufficient coordination between City departments.
(f) In the event of an emergency, the City Manager shall have the authority to institute rules and
regulations affecting the uses of all water served by the water delivery system until such a
time that a water shortage declaration can be made by the City Council but no longer than 21
consecutive days.
(Code 1971, § 23-200; Ord. No. 27-1985, § 1 ; Ord. No. 18-2002 § 1 [part]
Sec. 25.28.040. - Enforcement and Appeal Process.
The owner or occupant of the licensed premises shall be responsible for compliance with
this Chapter and those who violate these regulations or restrictions shall be subject to the
following actions and penalties.
(a) Upon first violation, the owner or occupant will be issued a written warning.
(b) Upon further violations within a 12-month period from the date of the warning notice
at the same premises, the owner or occupant will be advised in writing and the following
penalty charges will be added to the water bill for the property.
(1) The following penalties shall be due, payable and collectible from any person,
customer, or owner of the residential property pursuant to the provisions of this chapter
by the due date of the water bill. Unless a water shortage declaration is in place, the
charges are based on the “Normal Conditions” column and reflect violations to Section
25.28.020. During a water shortage declaration, the charges are based upon the stage, as
appropriate:
292
Violation Normal
Conditions
Water Shortage Declaration
Stage 1 Stage 2 Stage 3 Emergency
Response
2nd
Violation $125.00 $175.00 $200.00 $300.00 $400.00
3rd Violation $250.00 $300.00 $325.00 $400.00 $500.00
All
Additional
Violations
$500.00 $525.00 $550.00 $650.00 $750.00
(2) The following penalties shall be due, payable and collectible from any nonresidential
customer pursuant to the provisions of this chapter by the due date of the water bill.
Unless a water shortage declaration is in place, the charges are based on the “Normal
Conditions” column. During a water shortage declaration, the charges are based upon the
declared drought stage, as appropriate:
Violation Normal
Conditions
Water Shortage Declaration
Stage 1 Stage 2 Stage 3 Emergency
Response
2nd Violation $250.00 $300.00 $500.00 $750.00 $1,000.00
3rd Violation $1,000.00 $1,250.00 $1,500.00 $1,750.00 $2,000.00
All
Additional
Violations
$2,000.00 $2,500.00 $3,000.00 $3,500.00 $4,000.00
(c) After the fourth violation within a 12-month period from the date of the warning notice
at the same premises, if continued waste of water or willful violation of these regulations
or restrictions occurs, the Water Department may disconnect the service where the
violation has occurred.
(d) Appeal Process. Any person subject to a charge for violation of a provision of this
Chapter may appeal the charge by contacting the Aspen Water Department in writing
within twenty (20) days of receipt of monthly utility bill containing the violation charge.
Unless the customer's appeal is approved prior to the water bill due date, the customer
shall pay any charges that appear on the water bill by the due date of the water bill. If the
customer's appeal is approved after payment has been made, the disputed charge will be
credited on the next water bill.
(Ord. No. 24-2019 , § 1, 11-26-2019)
293
Sec. 25.28.050. - Monthly rates for water shortages.
Unless an alternative system of charges is adopted by City Council, temporary rates will be in
effect during the time that the City Council declares a water shortage. Factors from the tables
below will be specified in the rules and regulations for the water shortage declared by City
Council and will be applied to monthly variable charges identified in Section 25.16.010 to develop
temporary rate increases. Temporary rate increases shall go into effect after a minimum of a 48-
hour notification of this rate change by the City of Aspen City Manager and as set forth in the
rules and regulations provided via Public Notice.
(a) Four-Tier Rate Structure:
Billing Tier
Usage in
Gallons Per
ECU
Stage 1 Stage 2 Stage 3 Emergency
Response
I 0 to 4,000 1.0 1.0 1.0 1.0
II 4,001 to 12,000 1.0 1.0 1.0 1.0
III 12,001 to 16,000 1.0 to 1.75 1.0 to 1.75 1.0 to 1.75 1.0 to 1.75
IV Over 16,000 1.0 to 2.0 1.0 to 2.0 1.0 to 2.0 1.0 to 2.0
(b) Two-Tier Rate Structure (Bulk Water Customers):
Billing Tier
Usage in
Gallons Per
ECU
Stage 1 Stage 2 Stage 3 Emergency
Response
I 0 to 2,940 1.0 1.0 1.0 1.0
II Over 2,940 1.0 to 1.75 1.0 to 1.75 1.0 to 1.75 1.0 to 1.75
(c) Raw Water Rate Structure, Pressurized and Non-Pressurized:
Non-
Pressurized
Raw Water
Pressurized
Raw Water Stage 1 Stage 2 Stage 3
Emergenc
y
Response
Per 1,000 Sq. Ft Per 1,000
Gallons 1.0 to 1.75 1.0 to
1.75
1.0 to
1.75 1.0 to 1.75
Section 3.
Any and all existing ordinances or parts of ordinances of the City of Aspen covering the same
matters as embraced in this Ordinance are hereby repealed and all ordinances or parts of ordinances
inconsistent with the provisions of this ordinance are hereby repealed; provided, however, that such
repeal shall not affect or prevent the prosecution or punishment of any person for any act done or
committed in violation of any ordinance hereby repealed prior to the taking effect of this Ordinance.294
Section 4.
If any section, subsection, sentence, clause, or phrase of this Ordinance is, for any reason, held to
be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the
remaining portions of this Ordinance. The City of Aspen hereby declares that it would have adopted
this Ordinance, and each section, subsection, clause or phrase thereof, irrespective of the fact that
any one or more sections, subsections, sentences, clauses and phrases thereof be declared invalid or
unconstitutional.
Section 5.
This Ordinance shall take effect thirty (30) days after passage, adoption and publication thereof as
provided by law.
Section 6.
This ordinance shall not affect any existing litigation and shall not operate as an abatement of any
action or proceeding now pending under or by virtue of the ordinance repealed or amended as herein
provided, and the same shall be conducted and concluded under such prior ordinances.
FIRST READING OF THIS ORDINANCE WAS INTRODUCED, READ, ORDERED AND
PUBLISHED as provided by law, by the City Council of the City of Aspen on the _____ day of
____________ 2020.
Attest:
Nicole Henning, City Clerk Torre, Mayor
FINALLY, adopted, passed, and approved this ______ day of ________ 2020.
Attest:
Nicole Henning, City Clerk Torre, Mayor
Approved as to form:
James R. True, City Attorney
295
1
MEMORANDUM
TO: Mayor Torre and Aspen City Council
FROM: Amy Simon, Interim Planning Director/Historic Preservation Officer
MEMO DATE: August 3, 2020
MEETING DATE: August 11, 2020
RE: Resolution #067, Series of 2020, Extension of Temporary Use –
Silver Circle Ice Rink, 433 E. Durant Avenue, CONTINUE PUBLIC
HEARING TO AUGUST 25TH
_____
Applicant: G.A. Resort Condo
Association, Inc., c/o Hyatt Residence
Club, Bob Weisman, President, 415 E.
Dean St., Aspen, CO 81611
Representative: Chris Bendon,
BendonAdams, 300 S. Spring St.
#202, Aspen, CO 81611
Location: 433 E. Durant Avenue
Current Zoning & Use: P, Park
Summary: In September 2019, the
applicant received Temporary Use
approval to install a large chiller by the
Silver Circle ice rink for the 2019/2020
winter season. The chiller was a short-
term solution to manufacture ice after
the original refrigeration system, and a
subsequent synthetic ice surface
proved to be problematic. The chiller
was permitted to remain in place until
March 31, 2020, but could not be
removed at that time due to COVID-19.
The applicant seeks to retain the
equipment through next winter, while
researching a permanent solution to
maintain the ice rink or propose an
alternative use.
Staff Recommendation: In June, City Council
granted a Temporary Use approval to allow the
chiller to remain in place into September 2020.
Temporary Uses can only be granted for six
months at a time. The applicant is requesting
another extension while they prepare an
application for a Planned Development
amendment. The amendment is not expected
to be ready prior to the current Temporary Use
expiration in September.
Although a hearing to extend the timeframe to
file was planned for this Council meeting, there
was an error in the required public notice
process. The City failed to publish the notice
in the newspaper, while the applicant
completed their posting and mailing. Staff
requests a continuation of the public
hearing to August 25th in order to issue the
newspaper notice and preserve the work
that the applicant completed.
Silver Circle Ice Rink (Photo Courtesy of
www.uncovercolorado.com)
296
MEMORANDUM
TO:City Council
FROM:Pete Strecker, Finance Director
THROUGH:Sara Ott, City Manager
MEETING DATE:August 11, 2020
RE:Isis Theater Building $2.03M Outstanding Debt
REQUEST OF COUNCIL:Staff is looking for direction for how to proceed with refinancing
the outstanding $2.03M principal debt obligation associated with the Isis Theater building.
The next principal and interest payment date is September 1, 2020 and is equal to
$129,488.
SUMMARY AND BACKGROUND:As discussed most recently with Council on July 14,
the City of Aspen and the Aspen Public Facilities Authority (a separate legal entity with
the five Council members plus the City Clerk and City Finance Director as board
members) partnered with Aspen Film in 2007 to preserve the Isis Theater. With this
partnership came the issuance of debt to improve the building itself. Debt was issued on
the open market using certificates of participation (COPs) and allowed for the value of the
real estate to be used as collateral to secure the debt. As of now, there is $2.03M in debt
outstanding.
The structure of the arrangement between parties is as follows:
The Aspen Public Facilities Authority acts as landlord of the building.
The City of Aspen leases the building from the Authority.
Aspen Film subleases the building from the City of Aspen.
Metropolitan Film entered into an operating lease for the theater with Aspen Film.
At the meeting on July 14, Aspen Film notified the Council that it would enter into an
operating lease extension with Metropolitan Film that would extend beyond June 2020
and continue through January 2021. This new lease allowed for terms that would
restructure payments past due to Aspen Film from Metropolitan Film, allowing May and
June 2020 rent to be paid over a six-month period, as well as forgive April rent.
As Aspen Film has not received rent since March 2020 from Metropolitan Film, it has not
been keeping up with its lease payments to the City of Aspen. To date, these lease
payments have been the source of funding for the semi-annual debt service on the
building, thereby not requiring any City funding to support the debt.
Below is the scheduled billings for the 12 month period that coincides with the debt service
schedule. Rent is collected evenly each month at roughly $15,500 and then is applied
297
towards the two payments made Mar 1 and Sep 1. The imbalance below is due to the
partial call of debt that occurred in Oct 2019 when the Isis Retail Group sold the two
commercial units in the building to a new owner (and the call on debt could only be done
in $5,000 increments and could therefore not perfectly match the current lease terms for
Aspen Film).
DISCUSSION: At the last meeting on this issue with City Council, staff received direction
that the Council was willing to support preservation of the City’s only film theater. The
Council also supported a refinancing of the current debt to take advantage of better
interest rates and to possibly push off the current year’s principal payment due Sept 1.
Due to the impact of COVID on the financial markets, there were many banks that were
apprehensive in looking at a refinancing of this debt; and as such, the City has been
forced to wait for bids that reasonably reflect the City’s AAA credit rating and secure the
best deal possible for Aspen Film. With this waiting, the City believe that the September
1 principal and interest payment will need to be made.
Without rent payments from Aspen Film since April, staff is requesting confirmation from
Council to partner with Aspen Film in the near term, and to continue looking for a
refinancing opportunity to take advantage of lower interest rate environments.
Additionally, staff is looking for specific input from the Council on the extent of City support
so that Aspen Film can have a clear understanding of its timeframe to secure resources
to begin making its rent payments once again. The lease agreement between the City
and Aspen Film can be revisited to make adjustments for deferred or forgiven rent as the
Council sees fit.
FINANCIAL IMPACTS: The City’s General Fund would be required to contribute the
balance due on the certificates of participation (COPs) for the payment due September
Billed Rent Payment Due Balance
Sep-19 15,499.42 - 15,499.42
Oct-19 15,499.42 - 30,998.84
Nov-19 15,499.42 - 46,498.26
Dec-19 15,499.42 - 61,997.68
Jan-20 15,499.42 - 77,497.10
Feb-20 15,499.42 - 92,996.52
Mar-20 15,499.42 (59,488.00) 49,007.94
Apr-20 15,499.42 - 64,507.36
May-20 15,499.42 - 80,006.78
Jun-20 15,499.42 - 95,506.20
Jul-20 15,499.42 - 111,005.62
Aug-20 15,499.42 (129,488.00) (2,982.96)
Annual 185,993.04 (188,976.00) (2,982.96)
298
1. The City received $49,007.94 from Aspen Film and would therefore require the City to
contribute $80,480.06. These funds would require an appropriation and could be
incorporated into the Fall Supplemental. Deferred repayment or payment forgiveness
could be handled within a lease adjustment.
RECOMMENDATIONS:Staff recommends approval of $80,480.06 from the General
Fund (and a Fall Supplemental spending authority increase of the same amount) to
support the full September 1 debt service payment.
Further, staff proposes an initial recommendation to address the outstanding rent due
from Aspen Film for the months of April 2020 through August 2020. If Council agrees, a
modification to the current sublease terms with Aspen Film can require a deferral of these
monthly rent amounts (without interest) for a period of two years, and without any pre-
payment penalty.
ALTERNATIVE: Council could elect to default on the debt however this is not the
recommended course of action – this would result in a negative impact on the City’s credit
rating and would not benefit Aspen Film in the long run.
CITY MANAGER COMMENTS:
299
Page 1
Memorandum: Inspection Services Intergovernmental Agreement
MEMORANDUM
TO:Mayor Torre and City Council
FROM:Stephen Kanipe, Chief Building Official
THROUGH:Phillip Supino, Community Development Director
MEMO DATE:August 5, 2020
MEETING DATE:August 11, 2020
RE:Resolution No. 70, Series of 2020 - Intergovernmental Agreement for
mutual coverage for inspection services
REQUEST OF COUNCIL:Approve Resolution No. 70, Series of 2020.
SUMMARY: The draft Intergovernmental Agreement (IGA), attached as Exhibit A,
provides mutual inspection services between the Town of Snowmass Village, the Town
of Basalt, the Town of Carbondale and the City of Aspen. The intent is to provide
consistent, timely and uninterrupted mechanical (ME), electrical (EL) and plumbing (PL)
inspection services to all citizens of the municipalities named in the agreement. Should
Council approve Resolution No. 70, the draft will be adapted from its current form (as
written by the Town of Snowmass Village) to apply to the City of Aspen.
DISCUSSION: To ensure continuity of inspection services, Community Development
maintains intermittent inspection staff to cover unexpected illnesses, absence, and
leave. The current intermittent inspector has announced his retirement at the end of
August. While more permanent staffing solutions are pursued, the IGA will ensure that
field inspections will continue in a timely manner and in accordance with building code
and State of Colorado requirements. Governments party to the IGA approve the same
agreement and provide mutual inspection support in accordance with the IGA.
FINANCIAL IMPACTS:Inspections are billed to the jurisdiction receiving the service from
the jurisdiction providing the service at $75 per inspection and reconciled quarterly.
ENVIRONMENTAL IMPACTS: This arrangement may reduce in travel time and distance
for field inspection staff and have positive environmental impacts.
ALTERNATIVES:Council may not enter into the IGA. This would reduce timely
inspection service and compromise construction project timelines and completion.
RECOMMENDATIONS: Approve the IGA via Resolution No. 70, Series of 2020.
CITY MANAGER COMMENTS:
300
Page 2 of 2
Construction & Economic Recovery Follow-Up Work Session
ATTACHMENTS:
Exhibit A: Draft IGA
301
Resolution No. 70, Series 2020
Page 1 of 1
RESOLUTION NO. 70
(SERIES OF 2020)
A RESOLUTION OF THE ASPEN CITY COUNCIL APPROVING AN
INTERGOVERNMENTAL AGREEMENT FOR MUTUAL INSPECTION SERVICES AND
AUTHORIZING THE CITY MANAGER TO EXECUTE SAID DOCUMENT ON BEHALF OF
THE CITY OF ASPEN.
WHEREAS,there has been submitted to the City Council an updated intergovernmental
agreement for mutual inspection services to be shared and provided by the City of Aspen, Town of
Snowmass Village, Town of Basalt, and Town of Carbondale, Colorado, a copy of which document is
annexed hereto and made a part thereof.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN AS
FOLLOWS:
That the City Council of the City of Aspen hereby approves an updated intergovernmental agreement
between the Town of Snowmass Village, Town of Basalt, and Town of Carbondale for mutual inspection
services, as described in the agreement, a copy of which is annexed hereto, and does hereby authorize the
City Manager of the City of Aspen to execute said document on behalf of the City of Aspen.
RESOLVED, APPROVED, AND ADOPTED this 11th day of August 2020, by the City Council
for the City of Aspen, Colorado.
_______________________________
Torre, Mayor
ATTEST:APPROVED AS TO FORM:
_____________________________________________________________
Nicole Henning, City Clerk James R True, City Attorney
302
INTERGOVERNMENTAL AGREEMENT BETWEEN
THE CITY AND TOWN COUNCILS OF
THE CITY OF ASPEN,TOWN OF SNOWMASS VILLAGE, TOWN OF
BASALT, AND THE TOWN OF CARBONDALE REGARDING THE
PROVISION OF MUTUAL COVERAGE FOR INSPECTION SERVICES
BETWEEN THE MUNICIPALTIES
PARTIES
THIS IN RGOVERNMENTAL AGREEMENT (the "Agreement") is made this
day ofiQ , 2020 by and between the municipalities of the Town of
Carbondale, the Town of Basalt, the Town of Snowmass Village, and the City of Aspen
collectively the "Parties" and individually a"Party").
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements of
the Parties and other good and valuable consideration, the adequacy and sufficiency of
which is hereby acknowledged, the Parties agree as follows:
Purpose.
The purpose of this Intergovernmental Agreement is to enable the Parties to provide
consistent, uninterrupted inspection services to the citizens of the above-mentioned
municipalities. This Intergovernmental Agreement is designed and intended to:
Provide alternative inspection coverage in the event that one of the
participating jurisdictions is unable to provide inspection services due to
temporary or long-term adequate staffing.
Financial Reconciliation
Any expenses that will cause an unforeseen financial burden or incur a cost impact on the
IGA participants must be agreed upon and receive prior written approval to proceed from
the participating Parties.
The jurisdiction providing the inspection coverage shall invoice the jurisdiction receiving
inspection coverage directly on a per inspection basis at $75/inspection.
Effective Date, Modification, Annual Renewal, and Termination of this
Agreement
This agreement shall become effective 2020. It is agreed that the Parties shall
re-evaluate the terms of this agreement at the end of each calendar year to determine if
City/Towns Inspection Services IGA-Page 1
303
changes need to be made. This agreement shall automatically be renewed, if changes are
not made, for successive one-year periods thereafter. Any Party hereto may modify any
part of this Intergovernmental Agreement for any reason with the written agreement of the
other Parties or terminate all or part of this agreement with 90 days written notice.
Notices.
Any formal notice, demand or request provided for in this Intergovernmental Agreement
shall be in writing and shall be deemed properly given if deposited in the United States
Mail, postage prepaid to:
City of Aspen, Colorado
c/o City Manager
130 South Galena Street
Aspen, Colorado 81611
Town of Snowmass Village, Colorado
c/o Town Manager
PO Box 5010
Snowmass Village, Colorado 81615
Town of Basalt, Colorado
c/o Town Manager
101 Midland Avenue
Basalt, Colorado 81621
Town of Carbondale, Colorado
c/o Town Manager
511 Colorado Avenue
Carbondale, Colorado 81623
signatures on following page]
City/Towns Inspection Services IGA-Page 2
304
APPROVED by the City Council of the City of Aspen on the day of
2020.
ATTEST:CITY COUNCIL:
Nicole Henning, City Clerk Torre, Mayor
Date:
APPROVED by the Town Council of the Town of Snowmass Village on the2Ok day of
S (4Q1 2020.
ATTEST:TOWN COUNCIL
I
I
Rhonda Coxon, Town Clerk Mar ey utter, Mayor
Date:
i,`"
l 4)l3
APPROVED by the Town Council of the Town of Basalt on the day of
2020.
ATTEST:TOWN COUNCIL
Pam Schilling,Town Clerk William Kane, Mayor
Date:
City/Towns Inspection Services IGA-Page 3
305
APPROVED by the Board of Trustees of the Town of Carbondale on the day of
2020.
ATTEST:TOWN COUNCIL
Kathy Derby, Town Clerk Dan Richardson, Mayor
Date:
MANAGER APPROVAL:
Z4i
A‘o
Sara Ott, City Manager 9't Kinney, Town Man.ger
City of Aspen Town of Snowmass Village
Ryan Mahoney, Town Manager Jay Harrington, Town Manager
Town of Basalt Town of Carbondale
APPROVED AS TO FORM:
John Ely, County Attorney James R. True, City Attorney
ISO Dresser, Town Attorney Mark Hamilton, Town Attorney
City/Towns Inspection Services IGA-Page 4
306