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HomeMy WebLinkAbout2012-12-18 Agenda and Support Documentation Town Council Evening SessionVAIL TOWN COUNCIL EVENING SESSION AGENDA VAIL TOWN COUNCIL CHAMBERS 75 S. Frontage Road W. Vail, CO 81657 6:00 P.M., DECEMBER 18, 2012 NOTE: Times of items are approximate, subject to change, and cannot be relied upon to determine at what time Council will consider an item. 1. ITEM/TOPIC: Citizen Participation (15 min.) PRESENTER(S): Public 2. ITEM/TOPIC: Consent Agenda: 1) Resolution No. 36, Series of 2012, A Resolution Approving an Intergovernmental Agreement Between the Town of Vail and the Colorado Department of Transportation Regarding Simba Run Interchange; and Setting Forth Details in Regard Thereto - Gregg Hall 2) Resolution No. 37, Series of 2012, A Resolution Approving an Intergovernmental Agreement Between the Town of Vail and the Colorado Department of Transportation Regarding Review of Design Work of the TOV Municipal Complex Development; and Setting Forth Details in Regard Thereto. - Gregg Hall & George Ruther 3) Resolution No. 38, Series of 2012, A Resolution Approving an Intergovernmental Agreement Between the Town of Vail and Eagle River Fire Protection District; and Setting forth Details in Regard Thereto - Mark Miller & Matt Mire (5 min.) PRESENTER(S): Various 3. ITEM/TOPIC: Town Manager Report: Town Council letter to US Forest Service supporting proposed Vail Mountain 2012 Recreation Enhancements Project - Kelli McDonald (5 min) PRESENTER(S): Various 4. ITEM/TOPIC: Second reading of Ordinance No. 20, Series 2012, 2012 Budget Amendment (10 min.) PRESENTER(S): Kathleen Halloran ACTION REQUESTED OF COUNCIL: Approve or approve with amendments Ordinance No. 20, Series 2012 BACKGROUND: Please see attached memo STAFF RECOMMENDATION: Approve or approve with amendments Ordinance No. 20, Series 2012 5. ITEM/TOPIC: Appointment of CSE and VLMDAC members (5 min.) 12/18/2012 PRESENTER(S): Pam Brandmeyer ACTION REQUESTED OF COUNCIL: Council interviewed all interested applicants at the work session earlier in the day. Staff requests that the Council vote and appoint three members to the CSE and three members to the VLMDAC. BACKGROUND: See information from work session of December 18, 2012. STAFF RECOMMENDATION: Staff requests Council appoint three members to the CSE and three members to the VLMDAC for two year terms each, from January 1, 2013 to December 31, 2014. 6. ITEM/TOPIC: The Community Development Department will present the four (4) Ever Vail development applications before the Vail Town Council and request action be taken on Resolution No. 35, Series of 2012 and the second readings of Ordinance Nos. 7, 8 and 9, Series of 2011. The four (4) applications are intended to facilitate the future redevelopment of Ever Vail. Major Subdivision (Resolution No. 35, Series of 2012): A request for a review of a preliminary plan for a major subdivision, pursuant to Chapter 13-3, Major Subdivision, Vail Town Code, to allow for the creation of two lots for the redevelopment of the properties known as Ever Vail (West Lionshead), located at 862, 923, 934, 953, 1000 and 1031 South Frontage Road West, and the South Frontage Road West right-of-way/unplatted (a complete legal description is available for inspection at the Town of Vail Community Development Department), and setting forth details in regard thereto. (PEC080062)Rezoning (Ordinance No. 7, Series of 2011): A request for a recommendation to the Vail Town Council for a zone district boundary amendment, pursuant to Section 12-3-7, Amendment, Vail Town Code, to allow for a establish Lionshead Mixed Use 2 District zoning on Parcels 1 and 2 of the Ever Vail Subdivision located generally at 862, 923, 934, 953, 1000, and 1031 South Frontage Road, and the South Frontage Road right-of- way/unplatted (a complete legal description is available for inspection at the Town of Vail Community Development Department), and setting forth details in regard thereto. (PEC080061)Special Development District Amendment (Ordinance No. 8, Series of 2011): A request for a recommendation to the Vail Town Council for a major amendment to Special Development District No. 4, Cascade Village, pursuant to Section 12-9A-10, Amendment Procedures, Vail Town Code, to allow for the removal of Development Area D (Glen Lyon Office Building) from Special Development District No. 4, Cascade Village, and for a zone district boundary amendment, pursuant to Section 12-3-7, Amendment, Vail Town Code, to include the subject property in the Lionshead Mixed Use 2 District, located at 1000 South Frontage Road West/Lot 54, Glen Lyon Subdivision, and setting forth details in regard thereto. (PEC090036)Title 12, Zoning Regulations, Vail Town Code, Amendment ( Ordinance No. 9, Series of 2011): A request for a final recommendation to the Vail Town Council for prescribed regulation amendments, pursuant to Section 12-3-7, Amendment, Vail Town Code, to amend Section 12-10-19, Core Areas Identified, Vail Town Code, to amend the core area parking maps to include "Ever Vail" (West Lionshead) within the "Commercial Core" designation, and setting forth details in regard thereto. (PEC080065) (30 min.) PRESENTER(S): George Ruther Warren Campbell ACTION REQUESTED OF COUNCIL: The Planning and Environmental Commission recommends the Vail Town Council approve Resolution No. 35, Series of 2012 and approve Ordinance Nos. 7, 8, and 9, Series of 2011 upon 12/18/2012 second reading. BACKGROUND: On December 4, 2012 the Vail Town Council continued Resolution No. 35, Series of 2012 to the December 18th public hearing by unanimous vote. Ordinance Nos. 7, 8, and 9, Series of 2011 were approved upon first reading by a vote of 6-1-0 (Donovan opposed). STAFF RECOMMENDATION: The Planning and Environmental Commission recommends the Vail Town Council approves Resolution No. 35, Series of 2012 and the second reading of Ordinance Nos. 7, 8, and 9, Series of 2011. 7. ITEM/TOPIC: Discussion of Amendment 64 Concerning the Retail Sale, Distribution, Cultivation and Dispensing of Recreational Marijuana. (15 min. ) PRESENTER(S): Matt Mire ACTION REQUESTED OF COUNCIL: Review the attached memorandum, discuss and direct staff. BACKGROUND: On November 6, 2012, the registered electors of the State of Colorado voted to adopt Amendment 64, an amendment to the Colorado Constitution authorizing the personal use and regulation of marijuana. In sum, Amendment 64 legalizes recreational marijuana use for persons over the age of 21 and creates a licensing strucure for marijuana businesses. Amendment 64 has no effect on the state's medical marijuana regulations. Municipalities may choose to either prohibit or regulate retail marijuana businesses. There are many legal and practical considerations that will affest the implementation of Amendment 64, including the application of federal lawand the official position of the federal government. Over the coming months, the Town will be closely monitoring all state lefislative measures concerning Amendment 64 and awaiting the U.S. Department of Justice's official position on Amendment 64. STAFF RECOMMENDATION: Review the attached memorandum, discuss and direct staff. 8. ITEM/TOPIC: The first reading of Ordinance No. 21, Series of 2012, an ordinance for prescribed regulation amendments, pursuant to Section 12-3-7, Amendment, Vail Town Code, to allow for amendments to Section 12-8B-7, Height, Vail Town Code, to establish an allowable building height for golf course clubhouses within the outdoor recreation district, and to allow for amendments to Section 12-2-2, Definitions, Vail Town Code, to define the terms golf course and golf course clubhouse, and setting forth details in regard thereto. (5 minutes) PRESENTER(S): Bill Gibson, Community Development Department ACTION REQUESTED OF COUNCIL: The applicant is requesting Town Council to table the public hearing of Ordinance No. 21, Series of 2012 to the January 8, 2013 Council meeting. BACKGROUND: The Planning and Environmental Commission held a public hearing on the proposed amendment on October 22nd and November 12, 2012. On November 12, 2012, Planning and Environmental Commission forwarded a recommendation of approval to the Vail Town Council for the 12/18/2012 proposed amendment by a vote of 5-0-2 (Pierce and Hopkins recused). STAFF RECOMMENDATION: The applicant is requesting Town Council to table the public hearing of Ordinance No. 21, Series of 2012 to the January 8, 2013 Council meeting. 9. ITEM/TOPIC: The first reading of Ordinance No. 22, Series of 2012, an ordinance for a zone district boundary amendment, pursuant to Section 12-3- 7, Amendment, Vail Town Code, to allow for a rezoning of the Vail Golf Course parking lot from the General Use District to the Outdoor Recreation District, located at 1775 Sunburst Drive/Lot 3, Sunburst Filing 3, and setting forth details in regard thereto. (5 min.) PRESENTER(S): Bill Gibson, Community Development Department ACTION REQUESTED OF COUNCIL: The applicant is requesting Town Council to table the public hearing of Ordinance No. 22, Series of 2012 to the January 8, 2013 Council meeting. BACKGROUND: The Planning and Environmental Commission held a public hearing on the proposed amendment on October 22nd and November 12, 2012. On November 12, 2012, Planning and Environmental Commission forwarded a recommendation of approval to the Vail Town Council for the proposed amendment by a vote of 5-0-2 (Pierce and Hopkins recused). STAFF RECOMMENDATION: The applicant is requesting Town Council to table the public hearing of Ordinance No. 22, Series of 2012 to the January 8, 2013 Council meeting. 10. ITEM/TOPIC: Second Reading of Ordinance No. 23, Series of 2012, an Ordinance Approving a Franchise Agreement with Comcast of Colorado VI, LLC for the Provision of Cable Services in the Town of Vail. (30 min. ) PRESENTER(S): Matt Mire ACTION REQUESTED OF COUNCIL: Approve, approve with modifications, or deny Ordinance No. 23, Series of 2012, on second reading. (See attached memorandum) BACKGROUND: On April 2, 2007 and again on December 20, 2010, the Town received from Comcast Colorado VI, LLC ("Comcast") an application for renewal of its franchise agreement with the Town. During negotiations of a new franchise agreement, the existing franchise agreement was extended several times and during that time the Town discovered performance and technical issues that necessitated resolution prior to the approval of a new franchise agreement. In July 2011, the Town and Comcast entered into a Compliance Agreement to resolve the performance and technical issues. By July 2012, the performance and technical issues were resolved and the Compliance Agreement was fully performed. Article 12 of the Vail Town Charter authorizes the Town Council to grant franchises for a term not to exceed twenty (20) years. The procedures for renewal of franchise agreements for the provision of cable services is set forth in Chapter 5 of Title 8 of the Vail Town Code. (See attached memorandum) STAFF RECOMMENDATION: Approve, approve with modifications, or deny Ordinance No. 23, Series of 2012, on second reading. See attached memorandum. 12/18/2012 11. ITEM/TOPIC: Appointment of Newpaper of Record for 2013. (5 min.) PRESENTER(S): Lorelei Donaldson/Pam Brandmeyer ACTION REQUESTED OF COUNCIL: Appoint the Vail Daily as the Town of Vail's newspaper of record for 2013. BACKGROUND: Each year the town has to appoint a newpaper of record for publishing of notices per state statute. The Vail Daily is currently the only daily newspaper that complies with state statute regulations for the Town of Vail notices. STAFF RECOMMENDATION: Appoint the Vail Daily as the town's newspaper of record for 2013. 12. ITEM/TOPIC: Adjournment (8:10 p.m.) 12/18/2012 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: December 18, 2012 ITEM/TOPIC: Citizen Participation PRESENTER(S): Public 12/18/2012 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: December 18, 2012 ITEM/TOPIC: Consent Agenda: 1) Resolution No. 36, Series of 2012, A Resolution Approving an Intergovernmental Agreement Between the Town of Vail and the Colorado Department of Transportation Regarding Simba Run Interchange; and Setting Forth Details in Regard Thereto - Gregg Hall 2) Resolution No. 37, Series of 2012, A Resolution Approving an Intergovernmental Agreement Between the Town of Vail and the Colorado Department of Transportation Regarding Review of Design Work of the TOV Municipal Complex Development; and Setting Forth Details in Regard Thereto. - Gregg Hall & George Ruther 3) Resolution No. 38, Series of 2012, A Resolution Approving an Intergovernmental Agreement Between the Town of Vail and Eagle River Fire Protection District; and Setting forth Details in Regard Thereto - Mark Miller & Matt Mire PRESENTER(S): Various ATTACHMENTS: Resolution No. 36, Series of 2012 Resolution No. 37, Series of 2012 Resolution No. 38, Series of 2012 12/18/2012 Resolution No. 36, Series 2012 RESOLUTION NO. 36 Series of 2012 A RESOLUTION APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE TOWN OF VAIL, AND THE COLORADO DEPARTMENT OF TRANSPORTATION REGARDING SIMBA RUN INTERCHANGE; AND SETTING FORTH DETAILS IN REGARD THERETO. WHEREAS, the Town of Vail (the “Town”), in the County of Eagle and State of Colorado is a home rule municipal corporation duly organized and existing under the laws of the State of Colorado and the Town Charter (the “Charter”); WHEREAS, the members of the Town Council of the Town (the “Council”) have been duly elected and qualified; WHEREAS, the Town desires to partner with Colorado Department of Transportation (“CDOT”) to study the feasibility of adding an underpass perpendicular to I-70 at approximately mile marker 175, “Simba Run Interchange” (the “Project”); WHEREAS, the Project would connect the north and south Frontage Roads and would potentially improve pedestrian and vehicular circulation west of the main Vail exit; WHEREAS, Certain Surface Transportation project funds are made available only for eligible “Transportation Enhancement Activities”; WHEREAS, the purpose of this Intergovernmental Agreement (“IGA”) is to disburse Federal Enhancement funds to the Town pursuant to CDOT’s Stewardship Agreement with the Federal Highway Administration; and WHEREAS, the Council’s approval of Resolution No. 36, Series 2012, is required to enter into an IGA. NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: Section 1. The Council hereby approves and authorizes the Town Manager to enter into an Intergovernmental Agreement with CDOT, in substantially the same form as attached hereto as Exhibit A and in a form approved by the Town Attorney. Section 2. This Resolution shall take effect immediately upon its passage. INTRODUCED, PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Vail held this 18th day of December, 2012. _________________________ Andy P. Daly, Town Mayor ATTEST: _____________________________ Lorelei Donaldson, Town Clerk 12/18/2012 (FMLAWRK) PROJECT STA 0702-327 (19094) REGION 3/(wma) Rev 7/01/09 STATE OF COLORADO Department of Transportation Agreement with Town of Vail TABLE OF CONTENTS 1. PARTIES ......................................................................................................................................... 2 2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY. .................................................................... 2 3. RECITALS ....................................................................................................................................... 2 4. DEFINITIONS .................................................................................................................................. 2 5. TERM and EARLY TERMINATION. ................................................................................................ 3 6. SCOPE OF WORK .......................................................................................................................... 4 7. OPTION LETTER MODIFICATION.................................................................................................. 7 8. PAYMENTS ..................................................................................................................................... 8 9. ACCOUNTING .............................................................................................................................. 10 10. REPORTING - NOTIFICATION ................................................................................................... 10 11. LOCAL AGENCY RECORDS ...................................................................................................... 11 12. CONFIDENTIAL INFORMATION-STATE RECORDS.................................................................. 12 13. CONFLICT OF INTEREST .......................................................................................................... 12 14. REPRESENTATIONS AND WARRANTIES ................................................................................. 12 15. INSURANCE ............................................................................................................................... 13 16. DEFAULT-BREACH .................................................................................................................... 14 17. REMEDIES .................................................................................................................................. 15 18. NOTICES and REPRESENTATIVES ........................................................................................... 17 19. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE ............................................ 17 20. GOVERNMENTAL IMMUNITY .................................................................................................... 17 21. STATEWIDE CONTRACT MANAGEMENT SYSTEM ................................................................. 17 22. FEDERAL REQUIREMENTS....................................................................................................... 18 23. DISADVANTAGED BUSINESS ENTERPRISE (DBE) ................................................................. 18 24. DISPUTES ................................................................................................................................... 18 25. GENERAL PROVISIONS ............................................................................................................ 19 26. COLORADO SPECIAL PROVISIONS ......................................................................................... 21 27. SIGNATURE PAGE ..................................................................................................................... 23 28. EXHIBIT A – SCOPE OF WORK AND FORM 463 ........................................................................ 1 29. EXHIBIT B – LOCAL AGENCY RESOLUTION .............................................................................. 1 30. EXHIBIT C – FUNDING PROVISIONS .......................................................................................... 1 31. EXHIBIT D – OPTION LETTER ..................................................................................................... 1 32. EXHIBIT E – LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST ............................. 1 33. EXHIBIT F – CERTIFICATION FOR FEDERAL-AID CONTRACTS ............................................... 1 34. EXHIBIT G – DISADVANTAGED BUSINESS ENTERPRISE ........................................................ 1 35. EXHIBIT H – LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES ........................ 1 36. EXHIBIT I – FEDERAL-AID CONTRACT PROVISIONS ................................................................ 1 37. EXHIBIT J – FEDERAL REQUIREMENTS .................................................................................... 1 38. EXHIBIT K – SUPPLEMENTAL FEDERAL PROVISIONS………………………….………………….1 Routing # 13 HA3 50661 SAP # 271001789 FOR CDOT TRACKING PURPOSES (subject to change). 12/18/2012 Page 2 of 23 1. PARTIES THIS AGREEMENT is entered into by and between the Town of Vail, CDOT Vendor # 2000003, (“Local Agency”), and the STATE OF COLORADO acting by and through the Department of Transportation (“State” or “CDOT”). 2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY This Agreement shall not be effective or enforceable until it is approved and signed by the Colorado State Controller or their designee (“Effective Date”). The State shall not be liable to pay or reimburse the Local Agency for any performance hereunder, including, but not limited to costs or expenses incurred, or be bound by any provision hereof prior to the Effective Date. 3. RECITALS A. Authority, Appropriation, And Approval Authority exists in the law and funds have been budgeted, appropriated and otherwise made available and a sufficient unencumbered balance thereof remains available for payment and the required approval, clearance and coordination have been accomplished from and with appropriate agencies. i. Federal Authority Pursuant to § 1007(a) of TEA-21, at 23 U.S.C. § 133(d)(2), certain Surface Transportation project funds are made available only for eligible “Transportation Enhancement Activities”, as defined in § 23 U.S.C. § 101(a), and this contract provides for the performance by the Local Agency of a project for an eligible Transportation Enhancement Activity. Pursuant to Title I, Subtitle A, Section 1108 of the “Transportation Equity Act for the 21st Century” of 1998 (TEA-21) and/or the “Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users” (SAFETEA-LU) of 2005 and to applicable provisions of Title 23 of the United States Code and implementing regulations at Title 23 of the Code of Federal Regulations, as may be amended, (collectively referred to hereinafter as the “Federal Provisions”), certain federal funds have been and are expected to continue to be allocated for transportation projects requested by the Local Agency and eligible under the Surface Transportation Improvement Program that has been proposed by the State and approved by the Federal Highway Administration (“FHWA”). ii. State Authority Pursuant to CRS §43-1-223 and to applicable portions of the Federal Provisions, the State is responsible for the general administration and supervision of performance of projects in the Program, including the administration of federal funds for a Program project performed by a Local Agency under a contract with the State. This Agreement is executed under the authority of CRS § 23 U.S.C. § 101(a), CRS §§29-1-203, 43-1-110; 43-1-116, 43-2-101(4)(c) and 43-2- 144. B. Consideration The Parties acknowledge that the mutual promises and covenants contained herein and other good and valuable consideration are sufficient and adequate to support this Agreement. C. Purpose The purpose of this Agreement is to disburse Federal Enhancement funds to the Local Agency pursuant to CDOT’s Stewardship Agreement with the FHWA. D. References All references in this Agreement to sections (whether spelled out or using the § symbol), subsections, exhibits or other attachments, are references to sections, subsections, exhibits or other attachments contained herein or incorporated as a part hereof, unless otherwise noted. 4. DEFINITIONS The following terms as used herein shall be construed and interpreted as follows: A. Agreement or Contract 12/18/2012 Page 3 of 23 “Agreement” or “Contract” means this Agreement, its terms and conditions, attached exhibits, documents incorporated by reference under the terms of this Agreement, and any future modifying agreements, exhibits, attachments or references that are incorporated pursuant to Colroado State Fiscal Rules and Policies. B. Agreement Funds “Agreement Funds” means funds payable by the State to Local Agency pursuant to this Agreement. C. Budget “Budget” means the budget for the Work described in Project Payment Provisions in Exhibit C. D. Consultant and Contractor “Consultant” means a professional engineer or designer hired by Local Agency to design the Work and “Contractor” means the general construction contractor hired by Local Agency to construct the Work. E. Evaluation “Evaluation” means the process of examining the Local Agency’s Work and rating it based on criteria established in §6 and Exhibits A and E. F. Exhibits and Other Attachments The following exhibit(s) are attached hereto and incorporated by reference herein: Exhibit A (Scope of Work and Form 463), Exhibit B (Resolution), Exhibit C (Funding Provisions), Exhibit D (Option Letter), Exhibit E (Checklist), Exhibit F (Certification for Federal-Aid Funds), Exhibit G (Disadvantaged Business Enterprise), Exhibit H (Local Agency Procedures), Exhibit I (Federal-Aid Contract Provisions), Exhibit J (Federal Requirements) and Exhibit K (Supplemental Federal Provisions). G. Goods “Goods” means tangible material acquired, produced, or delivered by the Local Agency either separately or in conjunction with the Services the Local Agency renders hereunder. H. Oversight “Oversight” means the term as it is defined in the Stewardship Agreement between CDOT and the Federal Highway Administration (“FHWA”) and as it is defined in the Local Agency Manual. I. Party or Parties “Party” means the State or the Local Agency and “Parties” means both the State and the Local Agency J. Work Budget Work Budget means the budget described in Project Funding Provisions in Exhibit C. K. Services “Services” means the required services to be performed by the Local Agency pursuant to this Contract. L. Work “Work” means the tasks and activities the Local Agency is required to perform to fulfill its obligations under this Contract and Exhibits A and E, including the performance of the Services and delivery of the Goods. M. Work Product “Work Product” means the tangible or intangible results of the Local Agency’s Work, including, but not limited to, software, research, reports, studies, data, photographs, negatives or other finished or unfinished documents, drawings, models, surveys, maps, materials, or work product of any type, including drafts. 5. TERM and EARLY TERMINATION The Parties’ respective performances under this Agreement shall commence on the Effective Date. This Agreement shall terminate five (5) years from date of contract execution (Controller’s signature), unless sooner terminated or completed as demonstrated by final payment and final audit. 12/18/2012 Page 4 of 23 6. SCOPE OF WORK A. Completion The Local Agency shall complete the Work and other obligations as described herein in Exhibits A and E. Work performed prior to the Effective Date or after final acceptance shall not be considered part of the Work. B. Goods and Services The Local Agency shall procure Goods and Services necessary to complete the Work. Such procurement shall be accomplished using the Contract Funds and shall not increase the maximum amount payable hereunder by the State. C. Employees All persons employed hereunder by the Local Agency, or any Consultants or Contractor shall be considered the Local Agencys’, Consultants’ or Contractors’ employee(s) for all purposes and shall not be employees of the State for any purpose. D. State and Local Agency Committments i. Design If the Work includes preliminary design or final design or design work sheets, or special provisions and estimates (collectively referred to as the “Plans”), the Local Agency shall comply with and be responsible for satisfying the following requirements: a) Perform or provide the Plans to the extent required by the nature of the Work. b) Prepare final design in accordance with the requirements of the latest edition of the American Association of State Highway Transportation Officials (AASHTO) manual or other standard, such as the Uniform Building Code, as approved by the State. c) Prepare provisions and estimates in accordance with the most current version of the State’s Roadway and Bridge Design Manuals and Standard Specifications for Road and Bridge Construction or Local Agency specifications if approved by the State. d) Include details of any required detours in the Plans in order to prevent any interference of the construction Work and to protect the traveling public. e) Stamp the Plans produced by a Colorado Registered Professional Engineer. f) Provide final assembly of Plans and all other necessary documents. g) Be responsible for the Plans’ accuracy and completness. h) Make no further changes in the Plans following the award of the construction contract to Contractor unless agreed to in writing by the Parties. The Plans shall be considered final when approved in writing by CDOT and when final they shall be incorporated herein. ii. Local Agency Work a) Local Agency shall comply with the requirements of the Americans With Disabilities Act (ADA), and applicable federal regulations and standards as contained in the document “ADA Accessibility Requirements in CDOT Transportation Projects”. b) Local Agency shall afford the State ample opportunity to review the Plans and make any changes in the Plans that are directed by the State to comply with FHWA requirements. c) Local Agency may enter into a contract with a Consultant to perform all or any portion of the Plans and/or of construction administration. Provided, however, if federal-aid funds are involved in the cost of such Work to be done by such Consultant, such Consultant contract (and the performance/provision of the Plans under the contract) must comply with all applicable requirements of 23 C.F.R. Part 172 and with any procedures implementing those requirements as provided by the State, including those in Exhibit H. If the Local Agency enters into a contract with a Consultant for the Work: (1) Local Agency shall submit a certification that procurement of any Consultant contract complies with the requirements of 23 C.F.R. 172.5(1) prior to entering into such Consultant contract, subject to the State’s approval. If not approved by the State, the Local Agency shall not enter into such Consultant contract. (2) Local Agency shall ensure that all changes in the Consultant contract have prior approval by the State and FHWA and that they are in writing. Immediately 12/18/2012 Page 5 of 23 after the Consultant contract has been awarded, one copy of the executed Consultant contract and any amendments shall be submitted to the State. (3) Local Agency shall require that all billings under the consultant contract comply with the State’s standardized billing format. Examples of the billing formats are available from the CDOT Agreements Office. (4) Local Agency (and any Consultant) shall comply with 23 C.F.R. 172.5(b) and (d) and use the CDOT procedures described in Exhibit H to administer the Consultant contract. (5) Local Agency may expedite any CDOT approval of its procurement process and/or consultant contract by submitting a letter to CDOT from the Local Agency’s attorney/authorized representative certifying compliance with Exhibit H and 23 C.F.R. 172.5(b)and (d). (6) Local Agency shall ensure that the Consultant agreement complies with the requirements of 49 CFR 18.36(i) and contains the following language verbatim: (a) The design work under this Agreement shall be compatible with the requirements of the contract between the Local Agency and the State (which is incorporated herein by this reference) for the design/construction of the project. The State is an intended third-party beneficiary of this agreement for that purpose. (b) Upon advertisement of the project work for construction, the consultant shall make available services as requested by the State to assist the State in the evaluation of construction and the resolution of construction problems that may arise during the construction of the project. (c) The consultant shall review the Construction Contractor’s shop drawings for conformance with the contract documents and compliance with the provisions of the State’s publication, Standard Specifications for Road and Bridge Construction, in connection with this work. d) The State, in its sole discretion, may review construction plans, special provisions and estimates and may require the Local Agency to make such changes therein as the State determines necessary to comply with State and FHWA requirements. iii. Construction a) If the Work includes construction, the Local Agency shall perform the construction in accordance with the approved design plans and/or administer the construction in accordance with the Exhibit E. Such administration shall include Work inspection and testing; approving sources of materials; performing required plant and shop inspections; documentation of contract payments, testing and inspection activities; preparing and approving pay estimates; preparing, approving and securing the funding for contract modification orders and minor contract revisions; processing Construction Contractor claims; construction supervision; and meeting the Quality Control requirements of the FHWA/CDOT Stewardship Agreement, as described in the Local Agency Contract Administration Checklist. b) If the Local Agency is performing the Work, the State may, after providing written notice of the reason for the suspension to the Local Agency, suspend the Work, wholly or in part, due to the failure of the Local Agency or its Contractor to correct conditions which are unsafe for workers or for such periods as the State may deem necessary due to unsuitable weather, or for conditions considered unsuitable for the prosecution of the Work, or for any other condition or reason deemed by the State to be in the public interest. c) The Local Agency shall be responsible for the following: (1) Appointing a qualified professional engineer, licensed in the State of Colorado, as the Local Agency Project Engineer (LAPE), to perform engineering administration. The LAPE shall administer the Work in accordance with this Agreement, the requirements of the construction contract and applicable State procedures. 12/18/2012 Page 6 of 23 (2) For the construction of the Work, advertising the call for bids upon approval by the State and awarding the construction contract(s) to the low responsible bidder(s). (a) All advertising and bid awards, pursuant to this agreement, by the Local Agency shall comply with applicable requirements of 23 U.S.C. §112 and 23 C.F.R. Parts 633 and 635 and C.R.S. § 24-92-101 et seq. Those requirements include, without limitation, that the Local Agency and its Contractor shall incorporate Form 1273 (Exhibit I) in its entirety verbatim into any subcontract(s) for those services as terms and conditions therefore, as required by 23 C.F.R. 633.102(e). (b) The Local Agency may accept or reject the proposal of the apparent low bidder for Work on which competitive bids have been received. The Local Agency must accept or reject such bid within three (3) working days after they are publicly opened. (c) As part of accepting bid awards, the Local Agency shall provide additional funds, subject to their availability and appropriation, necessary to complete the Work if no additional federal-aid funds are available. (3) The requirements of this §6(D)(iii)(c)(2) also apply to any advertising and awards made by the State. (4) If all or part of the Work is to be accomplished by the Local Agency’s personnel (i.e. by force account) rather than by a competitive bidding process, the Local Agency shall perform such work in accordance with pertinent State specifications and requirements of 23 C.F.R. 635, Subpart B, Force Account Construction. (a) Such Work will normally be based upon estimated quantities and firm unit prices agreed to between the Local Agency, the State and FHWA in advance of the Work, as provided for in 23 C.R.F. 635.204(c). Such agreed unit prices shall constitute a commitment as to the value of the Work to be performed. (b) An alternative to the preceeding subsection is that the Local Agency may agree to participate in the Work based on actual costs of labor, equipment rental, materials supplies and supervision necessary to complete the Work. Where actual costs are used, eligibility of cost items shall be evaluated for compliance with 48 C.F.R. Part 31. (c) If the State provides matching funds under this Agreement, rental rates for publicly owned equipment shall be determined in accordance with the State’s Standard Specifications for Road and Bridge Construction §109.04. (d) All Work being paid under force account shall have prior approval of the State and/or FHWA and shall not be initiated until the State has issued a written notice to proceed. iv. State’s Commitments a) The State will perform a final project inspection of the Work as a quality control/assurance activity. When all Work has been satisfactorily completed, the State will sign the FHWA Form 1212. b) Notwithstanding any consents or approvals given by the State for the Plans, the State shall not be liable or responsible in any manner for the structural design, details or construction of any major structures designed by, or that are the responsibility of, the Local Agency as identified in the Local Agency Contract Administration Checklist, Exhibit E, v. ROW and Acquistion/Relocation a) If the Local Agency purchases a right of way for a State highway, including areas of influence, the Local Agency shall immediately convey title to such right of way to CDOT after the Local Agency obtains title. b) Any acquisition/relocation activities shall comply with all applicable federal and state statutes and regulations, including but not limited to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 as amended and the Uniform Relocation 12/18/2012 Page 7 of 23 Assistance and Real Property Acquisition Policies for Federal and Federally Assisted Programs as amended (49 C.F.R. Part 24), CDOT’s Right of Way Manual, and CDOT’s Policy and Procedural Directives. c) The Parties’ respective compliance responsibilities depend on the level of federal participation; provided however, that the State always retains Oversight responsibilities. d) The Parties’ respective responsibilities under each level in CDOT’s Right of Way Manual (located at http://www.dot.state.co.us/ROW_Manual/) and reimbursement for the levels will be under the following categories: (1) Right of way acquisition (3111) for federal participation and non-participation; (2) Relocation activities, if applicable (3109); (3) Right of way incidentals, if applicable (expenses incidental to acquisition/relocation of right of way – 3114). vi. Utilities If necessary, the Local Agency shall be responsible for obtaining the proper clearance or approval from any utility company which may become involved in the Work. Prior to the Work being advertised for bids, the Local Agency shall certify in writing to the State that all such clearances have been obtained. vii. Railroads If the Work involves modification of a railroad company’s facilities and such modification will be accomplished by railroad company, the Local Agency shall make timely application to the Public Utilities commission requesting its order providing for the installation of the proposed improvements and not proceed with that part of the Work without compliance. The Local Agency shall also establish contact with the railroad company involved for the purpose of complying with applicable provisions of 23 C.F.R. 646, subpart B, concerning federal-aid projects involving railroad facilities and: a) Execute an agreement setting out what work is to be accomplished and the location(s) thereof, and which costs shall be eligible for federal participation. b) Obtain the railroad’s detailed estimate of the cost of the Work. c) Establish future maintenance responsibilities for the proposed installation. d) Proscribe future use or dispositions of the proposed improvements in the event of abandonment or elimination of a grade crossing. e) Establish future repair and/or replacement responsibilities in the event of accidental destruction or damage to the installation. viii. Environmental Obligations The Local Agency shall perform all Work in accordance with the requirements of the current federal and state environmental regulations including the National Environmental Policy Act of 1969 (NEPA) as applicable. ix. Maintenance Obligations The Local Agency shall maintain and operate the Work constructed under this Agreement at its own cost and expense during their useful life, in a manner satisfactory to the State and FHWA, and the Local Agency shall provide for such maintenance and operations obligations each year. Such maintenance and operations shall be conducted in accordance with all applicable statutes, ordinances and regulations pertaining to maintaining such improvements. The State and FHWA may make periodic inspections to verify that such improvements are being adequately maintained. 7. OPTION LETTER MODIFICATION Option Letters may be used to extend Agreement term, change the level of service within the current term due to unexpected overmatch, add a phase without increasing contract dollars, or increase or decrease the amount of funding. These options are limited to the specific scenarios listed below. The Option Letter shall not be deemed valid until signed by the State Controller or an authorized delegate. Following are the applications for the individual options under the Option Letter form: 12/18/2012 Page 8 of 23 A. Option 1- Level of service change within current term due to unexpected overmatch in an overbid situation only. In the event the State has contracted all project funding and the Local Agency’s construction bid is higher than expected, this option allows for additional Local Overmatch dollars to be provided by the Local Agency to be added to the contract. This option is only applicable for Local Overmatch on an overbid situation and shall not be intended for any other Local Overmatch funding. The State may unilaterally increase the total dollars of this contract as stipulated by the executed Option Letter (Exhibit D), which will bring the maximum amount payable under this contract tothe amount indicated in Exhibit C-1 attached to the executed Option Letter (future changes to Exhibit C shall be labeled as C-2, C- 3, etc, as applicable). Performance of the services shall continue under the same terms as established in the contract. The State will use the Financial Statement submitted by the Local Agency for “Concurrence to Advertise” as evidence of the Local Agency’s intent to award and it will also provide the additional amount required to exercise this option. If the State exercises this option, the contract will be considered to include this option provision. B. Option 2 – Option to add overlapping phase without increasing contract dollars. The State may require the contractor to begin a phase that may include Design, Construction, Environmental, Utilities, ROW Incidentals or Miscellaneous (this does not apply to Acquisition/Relocation or Railroads) as detailed in Exhibit A and at the same terms and conditions stated in the original contract with the contract dollars remaining the same. The State may exercise this option by providing a fully executed option to the contractor within thirty (30) days before the initial targeted start date of the phase, in a form substantially equivalent to Exhibit D. If the State exercises this option, the contract will be considered to include this option provision. C. Option 3 - To update funding (increases and/or decreases) with a new Exhibit C. This option can be used to increase and/or decrease the overall contract dollars (state, federal, local match, local agency overmatch) to date, by replacing the original funding exhibit (Exhibit C) in the Original Contract with an updated Exhibit C-1 (subsequent exhibits to Exhibit C-1 shall be labeled C-2, C-3, etc). The State may have a need to update changes to state, federal, local match and local agency overmatch funds as outlined in Exhibit C-1, which will be attached to the option form. The State may exercise this option by providing a fully executed option to the contractor within thirty (30) days after the State has received notice of funding changes, in a form substantially equivalent to Exhibit D. If the State exercises this option, the contract will be considered to include this option provision. 8. PAYMENTS The State shall, in accordance with the provisions of this §8, pay the Local Agency in the amounts and using the methods set forth below: A. Maximum Amount The maximum amount payable to the Local Agency under this Agreement is set forth in Exhibit C, and as determined by the State from available funds. Payments to the Local Agency are limited to the unpaid encumbered balance of the Contract set forth in Exhibit C. The Local Agency shall provide its match share of the costs as evidenced by an appropriate ordinance/resolution or other authority letter which expressly authorizes the Local Agency the authority to enter into this Agreement and to expend its match share of the Work. A copy of such ordinance/resolution or authority letter is attached hereto as Exhibit B. B. Payment i. Advance, Interim and Final Payments Any advance payment allowed under this Contract or in Exhibit C shall comply with State Fiscal Rules and be made in accordance with the provisions of this Contract or such Exhibit. The Local Agency shall initiate any payment requests by submitting invoices to the State in the form and manner set forth in approved by the State. ii. Interest 12/18/2012 Page 9 of 23 The State shall fully pay each invoice within 45 days of receipt thereof if the amount invoiced represents performance by the Local Agency previously accepted by the State. Uncontested amounts not paid by the State within 45 days shall bear interest on the unpaid balance beginning on the 46th day at a rate not to exceed one percent per month until paid in full; provided, however, that interest shall not accrue on unpaid amounts that are subject to a good faith dispute. The Local Agency shall invoice the State separately for accrued interest on delinquent amounts. The billing shall reference the delinquent payment, the number of days interest to be paid and the interest rate. iii. Available Funds-Contingency-Termination The State is prohibited by law from making commitments beyond the term of the State’s current fiscal year. Therefore, the Local Agency’s compensation beyond the State’s current Fiscal Year is contingent upon the continuing availability of State appropriations as provided in the Colorado Special Provisions. The State’s performance hereunder is also contingent upon the continuing availability of federal funds. Payments pursuant to this Contract shall be made only from available funds encumbered for this Contract and the State’s liability for such payments shall be limited to the amount remaining of such encumbered funds. If State or federal funds are not appropriated, or otherwise become unavailable to fund this Contract, the State may terminate this Contract immediately, in whole or in part, without further liability in accordance with the provisions hereof. iv. Erroneous Payments At the State’s sole discretion, payments made to the Local Agency in error for any reason, including, but not limited to overpayments or improper payments, and unexpended or excess funds received by the Local Agency, may be recovered from the Local Agency by deduction from subsequent payments under this Contract or other contracts, Agreements or agreements between the State and the Local Agency or by other appropriate methods and collected as a debt due to the State. Such funds shall not be paid to any party other than the State. C. Use of Funds Contract Funds shall be used only for eligible costs identified herein. D. Matching Funds The Local Agency shall provide matching funds as provided in §8.A. and Exhibit C. The Local Agency shall have raised the full amount of matching funds prior to the Effective Date and shall report to the State regarding the status of such funds upon request. The Local Agency’s obligation to pay all or any part of any matching funds, whether direct or contingent, only extend to funds duly and lawfully appropriated for the purposes of this Agreement by the authorized representatives of the Local Agency and paid into the Local Agency’s treasury. The Local Agency represents to the State that the amount designated “Local Agency Matching Funds” in Exhibit C has been legally appropriated for the purpose of this Agreement by its authorized representatives and paid into its treasury. The Local Agency does not by this Agreement irrevocably pledge present cash reserves for payments in future fiscal years, and this Agreement is not intended to create a multiple-fiscal year debt of the Local Agency. The Local Agency shall not pay or be liable for any claimed interest, late charges, fees, taxes or penalties of any nature, except as required by the Local Agency’s laws or policies. E. Reimbursement of Local Agency Costs The State shall reimburse the Local Agency’s allowable costs, not exceeding the maximum total amount described in Exhibit C and §8. The applicable principles described in 49 C.F.R. 18 Subpart C and 49 C.F.R. 18.22 shall govern the State’s obligation to reimburse all costs incurred by the Local Agency and submitted to the State for reimubursement hereunder, and the Local Agency shall comply with all such principles. The State shall reimburse the Local Agency for the federal-aid share of properly documented costs related to the Work after review and approval thereof, subject to the provisions of this Agreement and Exhibit C. However, any costs incurred by the Local Agency prior to the date of FHWA authorization for the Work and prior to 12/18/2012 Page 10 of 23 the Effective Date shall not be reimbursed absent specific FHWA and State Controller approval thereof. Costs shall be: i. Reasonable and Necessary Resonable and necessary to accomplish the Work and for the Goods and Services provided. ii. Net Cost Actual net cost to the Local Agency (i.e. the price paid minus any items of value received by the Local Agency that reduce the cost actually incurred); 9. ACCOUNTING The Local Agency shall establish and maintain accounting systems in accordance with generally accepted accounting standards (a separate set of accounts, or as a separate and integral part of its current accounting scheme). Such accounting systems shall, at a minimum, provide as follows: A. Local Agency Performing the Work If Local Agency is performing the Work, all allowable costs, including any approved services contributed by the Local Agency or others, shall be documented using payrolls, time records, invoices, contracts, vouchers, and other applicable records. B. Local Agency-Checks or Draws Checks issued or draws made by the Local Agency shall be made or drawn against properly signed vouchers detailing the purpose thereof. All checks, payrolls, invoices, contracts, vouchers, orders, and other accounting documents shall be on file in the office of the Local Agency ,clearly identified, readily accessible, and to the extent feasible, kept separate and apart from all other Work documents. C. State-Administrative Services The State may perform any necessary administrative support services required hereunder. The Local Agency shall reimburse the State for the costs of any such services from the Budget as provided for in Exhibit C. If FHWA funding is not available or is withdrawn, or if the Local Agency terminates this Agreement prior to the Work being approved or completed, then all actual incurred costs of such services and assistance provided by the State shall be the Local Agency’s sole expense. D. Local Agency-Invoices The Local Agency’s invoices shall describe in detail the reimbursable costs incurred by the Local Agency, for which it seeks reimbursement; the dates such costs were incurred; and the amounts thereof, and shall not be submitted more often than monthly. E. Invoicing Within 60 Days The State shall not be liable to reimburse the Local Agency for any costs unless CDOT receives such invoices within 60 days after the date for which payment is requested, including final invoicing. Final payment to the Local Agency may be withheld at the discretion of the State until completion of final audit. Any costs incurred by the Local Agency that are not allowable under 49 C.F.R. 18 shall be reimbursed by the Local Agency, or the State may offset them against any payments due from the State to the Local Agency. F. Reimbursement of State Costs CDOT shall perform Oversight and the Local Agency shall reimburse CDOT for its related costs. The Local Agency shall pay invoices within 60 days after receipt thereof. If the Local Agency fails to remit payment within 60 days, at CDOT’s request, the State is authorized to withhold an equal amount from future apportionment due the Local Agency from the Highway Users Tax Fund and to pay such funds directly to CDOT. Interim funds, shall be payable from the State Highway Supplementary Fund (400) until CDOT is reimbursed. If the Local Agency fails to make payment within 60 days, it shall pay interest to the State at a rate of one percent per month on the delinquent amounts until the billing is paid in full. CDOT’s invoices shall describe in detail the reimbursable costs incurred, the dates incurred; and the amounts thereof, and shall not be submitted more often than monthly. 10. REPORTING - NOTIFICATION 12/18/2012 Page 11 of 23 Reports, Evaluations, and Reviews required under this §10 shall be in accordance with the procedures of and in such form as prescribed by the State and in accordance with §19, if applicable. A. Performance, Progress, Personnel, and Funds The Local Agency shall submit a report to the State upon expiration or sooner termination of this Agreement, containing an Evaluation and Review of the Local Agency’s performance and the final status of the Local Agency's obligations hereunder. B. Litigation Reporting Within 10 days after being served with any pleading related to this Agreement, in a legal action filed with a court or administrative agency, the Local Agency shall notify the State of such action and deliver copies of such pleadings to the State’s principal representative as identified herein. If the State or its principal representative is not then serving, such notice and copies shall be delivered to the Executive Director of CDOT. C. Noncompliance The Local Agency’s failure to provide reports and notify the State in a timely manner in accordance with this §10 may result in the delay of payment of funds and/or termination as provided under this Agreement. D. Documents Upon request by the State, the Local Agency shall provide the State, or its authorized representative, copies of all documents, including contracts and subcontracts, in its possession related to the Work. 11. LOCAL AGENCY RECORDS A. Maintenance The Local Agency shall make, keep, maintain, and allow inspection and monitoring by the State of a complete file of all records, documents, communications, notes and other written materials, electronic media files, and communications, pertaining in any manner to the Work or the delivery of Services (including, but not limited to the operation of programs) or Goods hereunder. The Local Agency shall maintain such records until the last to occur of the following: (i) a period of three years after the date this Agreement is completed or terminated, or (ii) three years after final payment is made hereunder, whichever is later, or (iii) for such further period as may be necessary to resolve any pending matters, or (iv) if an audit is occurring, or the Local Agency has received notice that an audit is pending, then until such audit has been completed and its findings have been resolved (collectively, the “Record Retention Period”). B. Inspection The Local Agency shall permit the State, the federal government and any other duly authorized agent of a governmental agency to audit, inspect, examine, excerpt, copy and/or transcribe the Local Agency's records related to this Agreement during the Record Retention Period to assure compliance with the terms hereof or to evaluate the Local Agency's performance hereunder. The State reserves the right to inspect the Work at all reasonable times and places during the term of this Agreement, including any extension. If the Work fails to conform to the requirements of this Agreement, the State may require the Local Agency promptly to bring the Work into conformity with Agreement requirements, at the Local Agency’s sole expense. If the Work cannot be brought into conformance by re-performance or other corrective measures, the State may require the Local Agency to take necessary action to ensure that future performance conforms to Agreement requirements and exercise the remedies available under this Agreement, at law or in equity in lieu of or in conjunction with such corrective measures. C. Monitoring The Local Agency also shall permit the State, the federal government or any other duly authorized agent of a governmental agency, in their sole discretion, to monitor all activities conducted by the Local Agency pursuant to the terms of this Agreement using any reasonable procedure, including, but not limited to: internal evaluation procedures, examination of program data, special analyses, on-site checking, formal audit examinations, or any other procedures. All 12/18/2012 Page 12 of 23 such monitoring shall be performed in a manner that shall not unduly interfere with the Local Agency’s performance hereunder. D. Final Audit Report If an audit is performed on the Local Agency’s records for any fiscal year covering a portion of the term of this Agreement, the Local Agency shall submit a copy of the final audit report to the State or its principal representative at the address specified herein. 12. CONFIDENTIAL INFORMATION-STATE RECORDS The Local Agency shall comply with the provisions of this §12 if it becomes privy to confidential information in connection with its performance hereunder. Confidential information, includes, but is not necessarily limited to, state records, personnel records, and information concerning individuals. A. Confidentiality The Local Agency shall keep all State records and information confidential at all times and to comply with all laws and regulations concerning confidentiality of information. Any request or demand by a third party for State records and information in the possession of the Local Agency shall be immediately forwarded to the State’s principal representative. B. Notification The Local Agency shall notify its agents, employees and assigns who may come into contact with State records and confidential information that each is subject to the confidentiality requirements set forth herein, and shall provide each with a written explanation of such requirements before they are permitted to access such records and information. C. Use, Security, and Retention Confidential information of any kind shall not be distributed or sold to any third party or used by the Local Agency or its agents in any way, except as authorized by the Agreement and as approved by the State. The Local Agency shall provide and maintain a secure environment that ensures confidentiality of all State records and other confidential information wherever located. Confidential information shall not be retained in any files or otherwise by the Local Agency or its agents, except as set forth in this Agreement and approved by the State. D. Disclosure-Liability Disclosure of State records or other confidential information by the Local Agency for any reason may be cause for legal action by third parties against the Local Agency, the State or their respective agents. The Local Agency shall indemnify, save, and hold harmless the State, its employees and agents, against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees and related costs, incurred as a result of any act or omission by the Local Agency, or its employees, agents, or assignees pursuant to this §12. 13. CONFLICT OF INTEREST The Local Agency shall not engage in any business or personal activities or practices or maintain any relationships which conflict in any way with the full performance of the Local Agency’s obligations hereunder. The Local Agency acknowledges that with respect to this Agreement, even the appearance of a conflict of interest is harmful to the State’s interests. Absent the State’s prior written approval, the Local Agency shall refrain from any practices, activities or relationships that reasonably appear to be in conflict with the full performance of the Local Agency’s obligations to the State hereunder. If a conflict or appearance exists, or if the Local Agency is uncertain whether a conflict or the appearance of a conflict of interest exists, the Local Agency shall submit to the State a disclosure statement setting forth the relevant details for the State’s consideration. Failure to promptly submit a disclosure statement or to follow the State’s direction in regard to the apparent conflict constitutes a breach of this Agreement. 14. REPRESENTATIONS AND WARRANTIES The Local Agency makes the following specific representations and warranties, each of which was relied on by the State in entering into this Agreement. A. Standard and Manner of Performance 12/18/2012 Page 13 of 23 The Local Agency shall perform its obligations hereunder, including in accordance with the highest professional standard of care, skill and diligence and in the sequence and manner set forth in this Agreement. B. Legal Authority – The Local Agency and the Local Agency’s Signatory The Local Agency warrants that it possesses the legal authority to enter into this Agreement and that it has taken all actions required by its procedures, by-laws, and/or applicable laws to exercise that authority, and to lawfully authorize its undersigned signatory to execute this Agreement, or any part thereof, and to bind the Local Agency to its terms. If requested by the State, the Local Agency shall provide the State with proof of the Local Agency’s authority to enter into this Agreement within 15 days of receiving such request. C. Licenses, Permits, Etc. The Local Agency represents and warrants that as of the Effective Date it has, and that at all times during the term hereof it shall have, at its sole expense, all licenses, certifications, approvals, insurance, permits, and other authorization required by law to perform its obligations hereunder. The Local Agency warrants that it shall maintain all necessary licenses, certifications, approvals, insurance, permits, and other authorizations required to properly perform this Agreement, without reimbursement by the State or other adjustment in Agreement Funds. Additionally, all employees and agents of the Local Agency performing Services under this Agreement shall hold all required licenses or certifications, if any, to perform their responsibilities. The Local Agency, if a foreign corporation or other foreign entity transacting business in the State of Colorado, further warrants that it currently has obtained and shall maintain any applicable certificate of authority to transact business in the State of Colorado and has designated a registered agent in Colorado to accept service of process. Any revocation, withdrawal or non-renewal of licenses, certifications, approvals, insurance, permits or any such similar requirements necessary for the Local Agency to properly perform the terms of this Agreement shall be deemed to be a material breach by the Local Agency and constitute grounds for termination of this Agreement. 15. INSURANCE The Local Agency and its contractors shall obtain and maintain insurance as specified in this section at all times during the term of this Agreement: All policies evidencing the insurance coverage required hereunder shall be issued by insurance companies satisfactory to the Local Agency and the State. A. The Local Agency i. Public Entities If the Local Agency is a "public entity" within the meaning of the Colorado Governmental Immunity Act, CRS §24-10-101, et seq., as amended (the “GIA”), then the Local Agency shall maintain at all times during the term of this Agreement such liability insurance, by commercial policy or self-insurance, as is necessary to meet its liabilities under the GIA. The Local Agency shall show proof of such insurance satisfactory to the State, if requested by the State. The Local Agency shall require each Agreement with their Consultant and Contractor, that are providing Goods or Services hereunder, to include the insurance requirements necessary to meet Consultant or Contractor liabilities under the GIA. ii. Non-Public Entities If the Local Agency is not a "public entity" within the meaning of the Governmental Immunity Act, the Local Agency shall obtain and maintain during the term of this Agreement insurance coverage and policies meeting the same requirements set forth in §15(B) with respect to sub-contractors that are not "public entities". B. Contractors The Local Agency shall require each contract with Contractors, Subcontractors, or Consultants, other than those that are public entities, providing Goods or Services in connection with this Agreement, to include insurance requirements substantially similar to the following: i. Worker’s Compensation 12/18/2012 Page 14 of 23 Worker’s Compensation Insurance as required by State statute, and Employer’s Liability Insurance covering all of the Local Agency’s Contractors, Subcontractors, or Consultant’s employees acting within the course and scope of their employment. ii. General Liability Commercial General Liability Insurance written on ISO occurrence form CG 00 01 10/93 or equivalent, covering premises operations, fire damage, independent contractors, products and completed operations, blanket Agreementual liability, personal injury, and advertising liability with minimum limits as follows: (a) $1,000,000 each occurrence; (b) $1,000,000 general aggregate; (c) $1,000,000 products and completed operations aggregate; and (d) $50,000 any one fire. If any aggregate limit is reduced below $1,000,000 because of claims made or paid, contractors, subcontractors, and consultants shall immediately obtain additional insurance to restore the full aggregate limit and furnish to the Local Agency a certificate or other document satisfactory to the Local Agency showing compliance with this provision. iii. Automobile Liability Automobile Liability Insurance covering any auto (including owned, hired and non-owned autos) with a minimum limit of $1,000,000 each accident combined single limit. iv. Additional Insured The Local Agency and the State shall be named as additional insured on the Commercial General Liability policies (leases and construction contracts require additional insured coverage for completed operations on endorsements CG 2010 11/85, CG 2037, or equivalent). v. Primacy of Coverage Coverage required of the Consultants or Contractors shall be primary over any insurance or self-insurance program carried by the Local Agency or the State. vi. Cancellation The above insurance policies shall include provisions preventing cancellation or non-renewal without at least 45 days prior notice to the Local Agency and the State by certified mail. vii. Subrogation Waiver All insurance policies in any way related to this Agreement and secured and maintained by the Local Agency’s Consultants or Contractors as required herein shall include clauses stating that each carrier shall waive all rights of recovery, under subrogation or otherwise, against the Local Agency or the State, its agencies, institutions, organizations, officers, agents, employees, and volunteers. C. Certificates The Local Agency and all Contractors, subcontractors, or Consultants shall provide certificates showing insurance coverage required hereunder to the State within seven business days of the Effective Date of this Agreement. No later than 15 days prior to the expiration date of any such coverage, the Local Agency and each contractor, subcontractor, or consultant shall deliver to the State or the Local Agency certificates of insurance evidencing renewals thereof. In addition, upon request by the State at any other time during the term of this Agreement or any sub- contract, the Local Agency and each contractor, subcontractor, or consultant shall, within 10 days of such request, supply to the State evidence satisfactory to the State of compliance with the provisions of this §15. 16. DEFAULT-BREACH A. Defined In addition to any breaches specified in other sections of this Agreement, the failure of either Party to perform any of its material obligations hereunder in whole or in part or in a timely or satisfactory manner, constitutes a breach. B. Notice and Cure Period In the event of a breach, notice of such shall be given in writing by the aggrieved Party to the other Party in the manner provided in §16. If such breach is not cured within 30 days of receipt 12/18/2012 Page 15 of 23 of written notice, or if a cure cannot be completed within 30 days, or if cure of the breach has not begun within 30 days and pursued with due diligence, the State may exercise any of the remedies set forth in §17. Notwithstanding anything to the contrary herein, the State, in its sole discretion, need not provide advance notice or a cure period and may immediately terminate this Agreement in whole or in part if reasonably necessary to preserve public safety or to prevent immediate public crisis.. 17. REMEDIES If the Local Agency is in breach under any provision of this Agreement, the State shall have all of the remedies listed in this §17 in addition to all other remedies set forth in other sections of this Agreement following the notice and cure period set forth in §16(B). The State may exercise any or all of the remedies available to it, in its sole discretion, concurrently or consecutively. A. Termination for Cause and/or Breach If the Local Agency fails to perform any of its obligations hereunder with such diligence as is required to ensure its completion in accordance with the provisions of this Agreement and in a timely manner, the State may notify the Local Agency of such non-performance in accordance with the provisions herein. If the Local Agency thereafter fails to promptly cure such non- performance within the cure period, the State, at its option, may terminate this entire Agreement or such part of this Agreement as to which there has been delay or a failure to properly perform. Exercise by the State of this right shall not be deemed a breach of its obligations hereunder. The Local Agency shall continue performance of this Agreement to the extent not terminated, if any. i. Obligations and Rights To the extent specified in any termination notice, the Local Agency shall not incur further obligations or render further performance hereunder past the effective date of such notice, and shall terminate outstanding orders and sub-Agreements with third parties. However, the Local Agency shall complete and deliver to the State all Work, Services and Goods not cancelled by the termination notice and may incur obligations as are necessary to do so within this Agreement’s terms. At the sole discretion of the State, the Local Agency shall assign to the State all of the Local Agency's right, title, and interest under such terminated orders or sub-Agreements. Upon termination, the Local Agency shall take timely, reasonable and necessary action to protect and preserve property in the possession of the Local Agency in which the State has an interest. All materials owned by the State in the possession of the Local Agency shall be immediately returned to the State. All Work Product, at the option of the State, shall be delivered by the Local Agency to the State and shall become the State’s property. ii. Payments The State shall reimburse the Local Agency only for accepted performance received up to the date of termination. If, after termination by the State, it is determined that the Local Agency was not in default or that the Local Agency's action or inaction was excusable, such termination shall be treated as a termination in the public interest and the rights and obligations of the Parties shall be the same as if this Agreement had been terminated in the public interest, as described herein. iii. Damages and Witholding Notwithstanding any other remedial action by the State, the Local Agency also shall remain liable to the State for any damages sustained by the State by virtue of any breach under this Agreement by the Local Agency and the State may withhold any payment to the Local Agency for the purpose of mitigating the State’s damages, until such time as the exact amount of damages due to the State from the Local Agency is determined. The State may withhold any amount that may be due to the Local Agency as the State deems necessary to protect the State, including loss as a result of outstanding liens or claims of former lien holders, or to reimburse the State for the excess costs incurred in procuring similar goods or 12/18/2012 Page 16 of 23 services. The Local Agency shall be liable for excess costs incurred by the State in procuring from third parties replacement Work, Services or substitute Goods as cover. B. Early Termination in the Public Interest The State is entering into this Agreement for the purpose of carrying out the public policy of the State of Colorado, as determined by its Governor, General Assembly, and/or Courts. If this Agreement ceases to further the public policy of the State, the State, in its sole discretion, may terminate this Agreement in whole or in part. Exercise by the State of this right shall not constitute a breach of the State’s obligations hereunder. This subsection shall not apply to a termination of this Agreement by the State for cause or breach by the Local Agency, which shall be governed by §17(A) or as otherwise specifically provided for herein. i. Method and Content The State shall notify the Local Agency of the termination in accordance with §17, specifying the effective date of the termination and whether it affects all or a portion of this Agreement. ii. Obligations and Rights Upon receipt of a termination notice, the Local Agency shall be subject to and comply with the same obligations and rights set forth in §17(A)(i). iii. Payments If this Agreement is terminated by the State pursuant to this §17(B), the Local Agency shall be paid an amount which bears the same ratio to the total reimbursement under this Agreement as the Services satisfactorily performed bear to the total Services covered by this Agreement, less payments previously made. Additionally, if this Agreement is less than 60% completed, the State may reimburse the Local Agency for a portion of actual out-of-pocket expenses (not otherwise reimbursed under this Agreement) incurred by the Local Agency which are directly attributable to the uncompleted portion of the Local Agency’s obligations hereunder; provided that the sum of any and all reimbursement shall not exceed the maximum amount payable to the Local Agency hereunder. C. Remedies Not Involving Termination The State, at its sole discretion, may exercise one or more of the following remedies in addition to other remedies available to it: i. Suspend Performance Suspend the Local Agency’s performance with respect to all or any portion of this Agreement pending necessary corrective action as specified by the State without entitling the Local Agency to an adjustment in price/cost or performance schedule. The Local Agency shall promptly cease performance and incurring costs in accordance with the State’s directive and the State shall not be liable for costs incurred by the Local Agency after the suspension of performance under this provision. ii. Withold Payment Withhold payment to the Local Agency until corrections in the Local Agency’s performance are satisfactorily made and completed. iii. Deny Payment Deny payment for those obligations not performed, that due to the Local Agency’s actions or inactions, cannot be performed or, if performed, would be of no value to the State; provided, that any denial of payment shall be reasonably related to the value to the State of the obligations not performed. iv. Removal Demand removal of any of the Local Agency’s employees, agents, or contractors whom the State deems incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable, or whose continued relation to this Agreement is deemed to be contrary to the public interest or not in the State’s best interest. v. Intellectual Property If the Local Agency infringes on a patent, copyright, trademark, trade secret or other intellectual property right while performing its obligations under this Agreement, the Local Agency shall, at the State’s option (a) obtain for the State or the Local Agency the right to 12/18/2012 Page 17 of 23 use such products and services; (b) replace any Goods, Services, or other product involved with non-infringing products or modify them so that they become non-infringing; or, (c) if neither of the forgegoing alternatives are reasonably available, remove any infringing Goods, Services, or products and refund the price paid therefore to the State. 18. NOTICES and REPRESENTATIVES Each individual identified below is the principal representative of the designating Party. All notices required to be given hereunder shall be hand delivered with receipt required or sent by certified or registered mail to such Party’s principal representative at the address set forth below. In addition to, but not in lieu of a hard-copy notice, notice also may be sent by e-mail to the e-mail addresses, if any, set forth below. Either Party may from time to time designate by written notice substitute addresses or persons to whom such notices shall be sent. Unless otherwise provided herein, all notices shall be effective upon receipt. A. State: Jennifer Babcock, PE CDOT Region 3 714 Grand Avenue, PO Box 298 Eagle, CO 81631 (970) 328-9936 Jennifer.Babcock@state.co.us B. Local Agency: Greg Hall, Public Works Director Town of Vail 1309 Elkhorn Drive Vail, CO 81657 (970) 479-2158 ghall@vailgov.com 19. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE Any software, research, reports, studies, data, photographs, negatives or other documents, drawings, models, materials, or work product of any type, including drafts, prepared by the Local Agency in the performance of its obligations under this Agreement shall be the exclusive property of the State and, all Work Product shall be delivered to the State by the Local Agency upon completion or termination hereof. The State’s exclusive rights in such Work Product shall include, but not be limited to, the right to copy, publish, display, transfer, and prepare derivative works. The Local Agency shall not use, willingly allow, cause or permit such Work Product to be used for any purpose other than the performance of the Local Agencys's obligations hereunder without the prior written consent of the State. 20. GOVERNMENTAL IMMUNITY Notwithstanding any other provision to the contrary, nothing herein shall constitute a waiver, express or implied, of any of the immunities, rights, benefits, protection, or other provisions of the Colorado Governmental Immunity Act, CRS §24-10-101, et seq., as amended. Liability for claims for injuries to persons or property arising from the negligence of the State of Colorado, its departments, institutions, agencies, boards, officials, and employees is controlled and limited by the provisions of the Governmental Immunity Act and the risk management statutes, CRS §24-30-1501, et seq., as amended. 21. STATEWIDE CONTRACT MANAGEMENT SYSTEM If the maximum amount payable to the Local Agency under this Agreement is $100,000 or greater, either on the Effective Date or at anytime thereafter, this §21 applies. The Local Agency agrees to be governed, and to abide, by the provisions of CRS §24-102-205, §24- 102-206, §24-103-601, §24-103.5-101 and §24-105-102 concerning the monitoring of vendor 12/18/2012 Page 18 of 23 performance on state agreements/contracts and inclusion of agreement/contract performance information in a statewide contract management system. The Local Agency’s performance shall be subject to Evaluation and Review in accordance with the terms and conditions of this Agreement, State law, including CRS §24-103.5-101, and State Fiscal Rules, Policies and Guidance. Evaluation and Review of the Local Agency’s performance shall be part of the normal Agreement administration process and the Local Agency’s performance will be systematically recorded in the statewide Agreement Management System. Areas of Evaluation and Review shall include, but shall not be limited to quality, cost and timeliness. Collection of information relevant to the performance of the Local Agency’s obligations under this Agreement shall be determined by the specific requirements of such obligations and shall include factors tailored to match the requirements of the Local Agency’s obligations. Such performance information shall be entered into the statewide Contract Management System at intervals established herein and a final Evaluation, Review and Rating shall be rendered within 30 days of the end of the Agreement term. The Local Agency shall be notified following each performance Evaluation and Review, and shall address or correct any identified problem in a timely manner and maintain work progress. Should the final performance Evaluation and Review determine that the Local Agency demonstrated a gross failure to meet the performance measures established hereunder, the Executive Director of the Colorado Department of Personnel and Administration (Executive Director), upon request by CDOT, and showing of good cause, may debar the Local Agency and prohibit the Local Agency from bidding on future Agreements. The Local Agency may contest the final Evaluation, Review and Rating by: (a) filing rebuttal statements, which may result in either removal or correction of the evaluation (CRS §24- 105-102(6)), or (b) under CRS §24-105-102(6), exercising the debarment protest and appeal rights provided in CRS §§24-109-106, 107, 201 or 202, which may result in the reversal of the debarment and reinstatement of the Local Agency, by the Executive Director, upon showing of good cause. 22. FEDERAL REQUIREMENTS The Local Agency and/or their contractors, subcontractors, and consultants shall at all times during the execution of this Agreement strictly adhere to, and comply with, all applicable federal and state laws, and their implementing regulations, as they currently exist and may hereafter be amended. A listing of certain federal and state laws that may be applicable are described in Exhibit J. 23. DISADVANTAGED BUSINESS ENTERPRISE (DBE) The Local Agency will comply with all requirements of Exhibit G and the Local Agency Contract Administration Checklist regarding DBE requirements for the Work, except that if the Local Agency desires to use its own DBE program to implement and administer the DBE provisions of 49 C.F.R. Part 26 under this Agreement, it must submit a copy of its program’s requirements to the State for review and approval before the execution of this Agreement. If the Local Agency uses any State- approved DBE program for this Agreement, the Local Agency shall be solely responsible to defend that DBE program and its use of that program against all legal and other challenges or complaints, at its sole cost and expense. Such responsibility includes, without limitation, determinations concerning DBE eligibility requirements and certification, adequate legal and factual bases for DBE goals and good faith efforts. State approval (if provided) of the Local Agency’s DBE program does not waive or modify the sole responsibility of the Local Agency for use of its program. 24. DISPUTES Except as otherwise provided in this Agreement, any dispute concerning a question of fact arising under this Agreement which is not disposed of by agreement, shall be decided by the Chief Engineer of the Department of Transportation. The decision of the Chief Engineer will be final and conclusive unless, within 30 calendar days after the date of receipt of a copy of such written decision, the Local Agency mails or otherwise furnishes to the State a written appeal addressed to the Executive Director of CDOT. In connection with any appeal proceeding under this clause, the Local Agency shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the Local Agency shall proceed diligently with the performance of this 12/18/2012 Page 19 of 23 Agreement in accordance with the Chief Engineer’s decision. The decision of the Executive Director or his duly authorized representative for the determination of such appeals shall be final and conclusive and serve as final agency action. This dispute clause does not preclude consideration of questions of law in connection with decisions provided for herein. Nothing in this Agreement, however, shall be construed as making final the decision of any administrative official, representative, or board on a question of law. 25. GENERAL PROVISIONS A. Assignment The Local Agency’s rights and obligations hereunder are personal and may not be transferred, assigned or subcontracted without the prior, written consent of the State. Any attempt at assignment, transfer, subcontracting without such consent shall be void. All assignments and subcontracts approved by the Local Agency or the State are subject to all of the provisions hereof. The Local Agency shall be solely responsible for all aspects of subcontracting arrangements and performance. B. Binding Effect Except as otherwise provided in §25(A), all provisions herein contained, including the benefits and burdens, shall extend to and be binding upon the Parties’ respective heirs, legal representatives, successors, and assigns. C. Captions The captions and headings in this Agreement are for convenience of reference only, and shall not be used to interpret, define, or limit its provisions. D. Counterparts This Agreement may be executed in multiple identical original counterparts, all of which shall constitute one agreement. E. Entire Understanding This Agreement represents the complete integration of all understandings between the Parties and all prior representations and understandings, oral or written, are merged herein. Prior or contemporaneous addition, deletion, or other amendment hereto shall not have any force or affect whatsoever, unless embodied herein. F. Indemnification - General If Local Agency is not a “public entity” within the meaning of the Colorado Governmental Immunity Act, CRS §24-10-101, et seq., the Local Agency shall indemnify, save, and hold harmless the State, its employees and agents, against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees and related costs, incurred as a result of any act or omision by the Local Agency, or its employees, agents, subcontractors or assignees pursuant to the terms of this Agreement. This clause is not applicable to a Local Agency that is a "public entity" within the meaning of the Colorado Governmental Immunity Act, CRS §24-10-101, et seq. G. Jurisdction and Venue All suits, actions, or proceedings related to this Agreement shall be held in the State of Colorado and exclusive venue shall be in the City and County of Denver. H. Limitations of Liability Any and all limitations of liability and/or damages in favor of the Local Agency contained in any document attached to and/or incorporated by reference into this Agreement, whether referred to as an exhibit, attachment, schedule, or any other name, are void and of no effect. This includes, but is not necessarily limited to, limitations on (i) the types of liabilities, (ii) the types of damages, (iii) the amount of damages, and (iv) the source of payment for damages. I. Modification i. By the Parties Except as specifically provided in this Agreement, modifications of this Agreement shall not be effective unless agreed to in writing by both parties in an amendment to this Agreement, 12/18/2012 Page 20 of 23 properly executed and approved in accordance with applicable Colorado State law, State Fiscal Rules, and Office of the State Controller Policies, including, but not limited to, the policy entitled MODIFICATIONS OF AGREEMENTS - TOOLS AND FORMS. ii. By Operation of Law This Agreement is subject to such modifications as may be required by changes in Federal or Colorado State law, or their implementing regulations. Any such required modification automatically shall be incorporated into and be part of this Agreement on the effective date of such change, as if fully set forth herein. J. Order of Precedence The provisions of this Agreement shall govern the relationship of the State and the Local Agency. In the event of conflicts or inconsistencies between this Agreement and its exhibits and attachments, such conflicts or inconsistencies shall be resolved by reference to the documents in the following order of priority: i. Colorado Special Provisions, ii. The provisions of the main body of this Agreement, iii. Exhibit A (Scope of Work and Form 463), iv. Exhibit B (Local Agency Resolution), v. Exhibit C (Funding Provisions), vi. Exhibit D (Option Letter), vii. Exhibit E (Local Agency Contract Administration Checklist), viii. Other exhibits in descending order of their attachment. K. Severability Provided this Agreement can be executed and performance of the obligations of the Parties accomplished within its intent, the provisions hereof are severable and any provision that is declared invalid or becomes inoperable for any reason shall not affect the validity of any other provision hereof. L. Survival of Certain Agreement Terms Notwithstanding anything herein to the contrary, provisions of this Agreement requiring continued performance, compliance, or effect after termination hereof, shall survive such termination and shall be enforceable by the State if the Local Agency fails to perform or comply as required. M. Taxes The State is exempt from all federal excise taxes under IRC Chapter 32 (No. 84-730123K) and from all State and local government sales and use taxes under CRS §§39-26-101 and 201 et seq. Such exemptions apply when materials are purchased or services rendered to benefit the State; provided however, that certain political subdivisions (e.g., City of Denver) may require payment of sales or use taxes even though the product or service is provided to the State. The Local Agency shall be solely liable for paying such taxes as the State is prohibited from paying for or reimbursing the Local Agency for them. N. Third Party Beneficiaries Enforcement of this Agreement and all rights and obligations hereunder are reserved solely to the Parties, and not to any third party. Any services or benefits which third parties receive as a result of this Agreement are incidental to the Agreement, and do not create any rights for such third parties. O. Waiver Waiver of any breach of a term, provision, or requirement of this Agreement, or any right or remedy hereunder, whether explicitly or by lack of enforcement, shall not be construed or deemed as a waiver of any subsequent breach of such term, provision or requirement, or of any other term, provision, or requirement. THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK 12/18/2012 Page 21 of 23 26. COLORADO SPECIAL PROVISIONS The Special Provisions apply to all Agreements except where noted in italics. 1. CONTROLLER'S APPROVAL. CRS §24-30-202 (1). This Agreement shall not be deemed valid until it has been approved by the Colorado State Controller or designee. 2. FUND AVAILABILITY. CRS §24-30-202(5.5). Financial obligations of the State payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. 3. GOVERNMENTAL IMMUNITY. No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, of the Colorado Governmental Immunity Act, CRS §24-10-101 et seq., or the Federal Tort Claims Act, 28 U.S.C. §§1346(b) and 2671 et seq., as applicable now or hereafter amended. 4. INDEPENDENT CONTRACTOR. The Local Agency shall perform its duties hereunder as an independent contractor and not as an employee. Neither The Local Agency nor any agent or employee of The Local Agency shall be deemed to be an agent or employee of the State. The Local Agency and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise provide such coverage for The Local Agency or any of its agents or employees. Unemployment insurance benefits shall be available to The Local Agency and its employees and agents only if such coverage is made available by The Local Agency or a third party. The Local Agency shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this Agreement. The Local Agency shall not have authorization, express or implied, to bind the State to any Agreement, liability or understanding, except as expressly set forth herein. The Local Agency shall (a) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (b) provide proof thereof when requested by the State, and (c) be solely responsible for its acts and those of its employees and agents. 5. COMPLIANCE WITH LAW. The Local Agency shall strictly comply with all applicable federal and State laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices. 6. CHOICE OF LAW. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Agreement. Any provision included or incorporated herein by reference which conflicts with said laws, rules, and regulations shall be null and void. Any provision incorporated herein by reference which purports to negate this or any other Special Provision in whole or in part shall not be valid or enforceable or available in any action at law, whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision shall not invalidate the remainder of this Agreement, to the extent capable of execution. 7. BINDING ARBITRATION PROHIBITED. The State of Colorado does not agree to binding arbitration by any extra-judicial body or person. Any provision to the contrary in this contact or incorporated herein by reference shall be null and void. 8. SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00. State or other public funds payable under this Agreement shall not be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. The Local Agency hereby certifies and warrants that, during the term of this Agreement and any extensions, The Local Agency has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that The Local Agency is in violation of this provision, the State may exercise any remedy available at law or in equity or under this Agreement, including, without limitation, immediate termination of this Agreement and any remedy consistent with federal copyright laws or applicable licensing restrictions. 9. EMPLOYEE FINANCIAL INTEREST. CRS §§24-18-201 and 24-50-507. The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this Agreement. 12/18/2012 Page 22 of 23 The Local Agency has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of The Local Agency’s services and The Local Agency shall not employ any person having such known interests. 10. VENDOR OFFSET. CRS §§24-30-202 (1) and 24-30-202.4. [Not Applicable toIntergovernmental agreements] Subject to CRS §24-30-202.4 (3.5), the State Controller may withhold payment under the State’s vendor offset intercept system for debts owed to State agencies for: (a) unpaid child support debts or child support arrearages; (b) unpaid balances of tax, accrued interest, or other charges specified in CRS §39-21-101, et seq.; (c) unpaid loans due to the Student Loan Division of the Department of Higher Education; (d) amounts required to be paid to the Unemployment Compensation Fund; and (e) other unpaid debts owing to the State as a result of final agency determination or judicial action. 11. PUBLIC CONTRACTS FOR SERVICES. CRS §8-17.5-101. [Not Applicable to Agreements relating to the offer, issuance, or sale of securities, investment advisory services or fund management services, sponsored projects, Intergovernmental Agreements, or information technology services or products and services] The Local Agency certifies, warrants, and agrees that it does not knowingly employ or contract with an illegal alien who shall perform work under this Agreement and shall confirm the employment eligibility of all employees who are newly hired for employment in the United States to perform work under this Agreement, through participation in the E-Verify Program or the State program established pursuant to CRS §8-17.5- 102(5)(c), The Local Agency shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or enter into a contract with a subcontractor that fails to certify to The Local Agency that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. The Local Agency (a) shall not use E-Verify Program or State program procedures to undertake pre-employment screening of job applicants while this Agreement is being performed, (b) shall notify the subcontractor and the contracting State agency within three days if The Local Agency has actual knowledge that a subcontractor is employing or contracting with an illegal alien for work under this Agreement, (c) shall terminate the subcontract if a subcontractor does not stop employing or contracting with the illegal alien within three days of receiving the notice, and (d) shall comply with reasonable requests made in the course of an investigation, undertaken pursuant to CRS §8-17.5-102(5), by the Colorado Department of Labor and Employment. If The Local Agency participates in the State program, The Local Agency shall deliver to the contracting State agency, Institution of Higher Education or political subdivision, a written, notarized affirmation, affirming that The Local Agency has examined the legal work status of such employee, and shall comply with all of the other requirements of the State program. If The Local Agency fails to comply with any requirement of this provision or CRS §8-17.5-101 et seq., the contracting State agency, institution of higher education or political subdivision may terminate this Agreement for breach and, if so terminated, The Local Agency shall be liable for damages. 12. PUBLIC CONTRACTS WITH NATURAL PERSONS. CRS §24-76.5-101. The Local Agency, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that he or she (a) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (b) shall comply with the provisions of CRS §24-76.5-101 et seq., and (c) has produced one form of identification required by CRS §24-76.5-103 prior to the effective date of this Agreement. SPs Effective 1/1/09 THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK 12/18/2012 Page 23 of 23 27. SIGNATURE PAGE Agreement Routing Number 13 HA3 50661 THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT * Persons signing for The Local Agency hereby swear and affirm that they are authorized to act on The Local Agency’s behalf and acknowledge that the State is relying on their representations to that effect. THE LOCAL AGENCY Town of Vail CDOT Vendor # 2000003 Print: _______________________________ Title: ______________________________ __________________________________________ *Signature STATE OF COLORADO JOHN W. HICKENLOOPER, GOVERNOR ________________________________________ Timothy J. Harris, P.E., Chief Engineer for Donald E. Hunt, Executive Director Colorado Department of Transportation 2nd The Local Agency Signature if Needed Print: ________________________________ Title: ______________________________ ______________________________________________ *Signature LEGAL REVIEW John W. Suthers, Attorney General By:_______________________________________________ Signature - Assistant Attorney General ALL AGREEMENTS REQUIRE APPROVAL BY THE STATE CONTROLLER CRS §24-30-202 requires the State Controller to approve all State Agreements. This Agreement is not valid until signed and dated below by the State Controller or delegate. The Local Agency is not authorized to begin performance until such time. If The Local Agency begins performing prior thereto, the State of Colorado is not obligated to pay The Local Agency for such performance or for any goods and/or services provided hereunder. STATE CONTROLLER David J. McDermott, CPA By:___________________________________________ Colorado Department of Transporation Date:_____________________ 12/18/2012 Exhibit A - Page 1 of 4 28. EXHIBIT A – SCOPE OF WORK and FORM 463 THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK 12/18/2012 Exhibit A - Page 2 of 4 12/18/2012 Exhibit A - Page 3 of 4 12/18/2012 Exhibit A - Page 4 of 4 12/18/2012 Exhibit B - Page 1 of 1 29. EXHIBIT B – LOCAL AGENCY RESOLUTION LOCAL AGENCY ORDINANCE or RESOLUTION 12/18/2012 Exhibit C - Page 1 of 2 SA19041 30. EXHIBIT C – FUNDING PROVISIONS STA 0702-327 (19094) A. Cost of Work Estimate The Local Agency has estimated the total cost the Work to be $125,000.00 which is to be funded as follows: 1 BUDGETED FUNDS a. Federal Funds $125,000.00 b. Local Agency Matching Funds $0.00 TOTAL BUDGETED FUNDS $125,000.00 2 ESTIMATED CDOT-INCURRED COSTS a. Federal Share $0.00 b. Local Share Local Agency Share of Participating Costs $0.00 Non-Participating Costs (Including Non-Participating Indirects) $0.00 Estimated to be Billed to Local Agency $0.00 TOTAL ESTIMATED CDOT-INCURRED COSTS $0.00 3 ESTIMATED PAYMENT TO LOCAL AGENCY a. Federal Funds Budgeted (1a) $125,000.00 b. Less Estimated Federal Share of CDOT-Incurred Costs (2a) $0.00 TOTAL ESTIMATED PAYMENT TO LOCAL AGENCY $125,000.00 FOR CDOT ENCUMBRANCE PURPOSES Estimated Total Encumbrance Amount $125,000.00 Less ROW Acquisition 3111 and/or ROW Relocation 3109 ($0.00) Net to be encumbered as follows: WBS Element 19094.10.30 Design 3020 $0.00 WBS Element 19094.20.10 Const 3301 $0.00 B. Matching Funds The matching ratio for the federal participating funds for this Work is 100% federal-aid funds (CFDA #20 2050) to 0% Local Agency funds, it being understood that such ratio applies only to the $125,000.00 that is eligible for federal participation, it being further understood that all non-participating costs are borne by the Local Agency at 100%. If the total participating cost of performance of the Work exceeds $125,000.00, and additional federal funds are made available for the Work, the Local Agency shall pay 0% of all such costs eligible for federal participation and 100% of all non-participating costs; if additional federal funds are not made available, the 12/18/2012 Exhibit C - Page 2 of 2 SA19041 Local Agency shall pay all such excess costs. If the total participating cost of performance of the Work is less than $125,000.00, then the amounts of Local Agency and federal-aid funds will be decreased in accordance with the funding ratio described herein. C. Maximum Amount Payable The maximum amount payable to the Local Agency under this Agreement shall be $125,000.00 (For CDOT accounting purposes, the federal funds of $125,000.00 will be encumbered for a total encumbrance of $125,000.00), unless such amount is increased by an appropriate written modification to this Agreement executed before any increased cost is incurred. *Note: $0.00 is currently available for the Work. Funds will be encumbered by Option Letter or Formal Amendment as they become authorized. It is understood and agreed by the parties hereto that the total cost of the Work stated hereinbefore is the best estimate available, based on the design data as approved at the time of execution of this Agreement, and that such cost is subject to revisions (in accord with the procedure in the previous sentence) agreeable to the parties prior to bid and award. D. Single Audit Act Amendment All state and local government and non-profit organization Sub-The Local Agencys receiving more than $500,000 from all funding sources defined as federal financial assistance for Single Audit Act Amendment purposes, shall comply with the audit requirements of OMB Circular A- 133 (Audits of States, Local Governments and Non-Profit Organizations) see also, 49 C.F.R. 18.20 through 18.26. The Single Audit Act Amendment requirements applicable to Sub-The Local Agencys receiving federal funds are as follows: i. Expenditure less than $500,000 If the Sub-The Local Agency expends less than $500,000 in Federal funds (all federal sources, not just Highway funds) in its fiscal year then this requirement does not apply. ii. Expenditure exceeding than $500,000-Highway Funds Only If the Sub-The Local Agency expends more than $500,000 in Federal funds, but only received federal Highway funds (Catalog of Federal Domestic Assistance, CFDA 20.205) then a program specific audit shall be performed. This audit will examine the “financial” procedures and processes for this program area. iii. Expenditure exceeding than $500,000-Multiple Funding Sources If the Sub-The Local Agency expends more than $500,000 in Federal funds, and the Federal funds are from multiple sources (FTA, HUD, NPS, etc.) then the Single Audit Act applies, which is an audit on the entire organization/entity. iv. Independent CPA Single Audit shall only be conducted by an independent CPA, not by an auditor on staff. An audit is an allowable direct or indirect cost. 12/18/2012 Exhibit D - Page 1 of 2 31. EXHIBIT D – OPTION LETTER SAMPLE IGA OPTION LETTER (This option has been created by the Office of the State Controller for CDOT use only) NOTE: This option is limited to the specific contract scenarios listed below AND may not be used in place of exercising a formal amendment. Date: State Fiscal Year: Option Letter No. CLIN Routing # Original Contract CMS # Original Contract SAP # Option Letter CMS # Option Letter SAP # Vendor name: _________________________________________________ A. SUBJECT: (Choose applicable options listed below AND in section B and delete the rest) 1. Level of service change within current term due to an unexpected Local overmatch on an overbid situation ONLY; 2. Option to add phasing to include Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous ONLY (does not apply to Acquisition/Relocation or Railroads); 3. Option to update funding (a new Exhibit C must be attached with the option letter and shall be labeled C-1 (future changes for this option shall be labeled as follows: C-2, C-3, C-4, etc.) B. REQUIRED PROVISIONS. All Option Letters shall contain the appropriate provisions set forth below: (Insert the following language for use with Option #1): In accordance with the terms of the original Agreement (insert FY, Agency code & CLIN routing # of Basic Contract) between the State of Colorado, Department of Transportation and (insert the Local Agency’s name here), the State hereby exercises the option to record a level of service change due to unexpected overmatch dollars due to an overbid situation. The Agreement is now increased by (indicate additional dollars here) specified in Paragraph/Section/Provision _________________ of the original Agreement. (Insert the following language for use with Option #2): In accordance with the terms of the original Agreement (insert FY, Agency code & CLIN routing # Basic Contract) between the State of Colorado, Department of Transportation and (insert the Local Agency’s name here), the State hereby exercises the option to add an overlapping phase in (indicate Fiscal Year here) that will include (describe which phase will be added and include all that apply – Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous). Total funds for this Agreement remain the same (indicate total dollars here) as referenced in Paragraph/Section/Provision/Exhibit ________________of the original Agreement. (Insert the following language for use with Option #3): In accordance with the terms of the original Agreement (insert FY, Agency code & CLIN routing # of Basic Contract) between the State of Colorado, Department of Transportation and (insert the Local Agency’s name here), the State hereby exercises the option to update funding based on changes from state, federal, local match and/or local agency overmatch funds. The Agreement is now (select one: increased and/or decreased) by (insert dollars here) specified in Paragraph/-Section/- Provision/Exhibit ______________ of the original Agreement. A new Exhibit C-1 is made part of the original Agreement and replaces Exhibit C. (The following is a NOTE only so please delete when 12/18/2012 Exhibit D - Page 2 of 2 using this option: future changes for this option for Exhibit C shall be labeled as follows: C-2, C-3, C-4, etc.) (The following language must be included on ALL options): The amount of the current Fiscal Year contract value is (increased/decreased) by ($ amount of change) to a new Agreement value of ($_____________) to satisfy services/goods ordered under the Agreement for the current fiscal year (indicate Fiscal Year). The first sentence in Paragraph/Section/Provision ____________ is hereby modified accordingly. The total Agreement value to include all previous amendments, option letters, etc. is ($______________). The effective date of this Option Letter is upon approval of the State Controller or delegate. State of Colorado: John W. Hickenlooper, Governor By: _____________________________________________ Date: __________________ Executive Director, Colorado Department of Transportation ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER CRS §24-30-202 requires the State Controller to approve all State Contracts. This Agreement is not valid until signed and dated below by the State Controller or delegate. Contractor is not authorized to begin performance until such time. If the Local Agency begins performing prior thereto, the State of Colorado is not obligated to pay the Local Agency for such performance or for any goods and/or services provided hereunder. State Controller David J. McDermott, CPA By: __________________________________ Date: ________________________________ Form Updated: June 12, 2008 12/18/2012 Exhibit E – Page 1 of 5 32. EXHIBIT E – LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST 12/18/2012 Exhibit E – Page 2 of 5 12/18/2012 Exhibit E – Page 3 of 5 12/18/2012 Exhibit E – Page 4 of 5 12/18/2012 Exhibit E – Page 5 of 5 12/18/2012 Exhibit F – Page 1 of 1 33. EXHIBIT F – CERTIFICATION FOR FEDERAL-AID CONTRACTS The Local Agency certifies, by signing this Agreement, to the best of its knowledge and belief, that: No Federal appropriated funds have been paid or will be paid, by or on behalf or the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, Agreement, loan, or cooperative agreement. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or of Congress, or an employee of a Member of Congress in connection with this Federal contract, Agreement, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. The prospective participant also agree by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such sub-recipients shall certify and disclose accordingly. Required by 23 CFR 635.112 12/18/2012 Exhibit G - Page 1 of 1 34. EXHIBIT G – DISADVANTAGED BUSINESS ENTERPRISE SECTION 1. Policy. It is the policy of the Colorado Department of Transportation (CDOT) that disadvantaged business enterprises shall have the maximum opportunity to participate in the performance of contracts financed in whole or in part with Federal funds under this agreement, pursuant to 49 CFR Part 23. Consequently, the 49 CFR Part IE DBE requirements the Colorado Department of Transportation DBE Program (or a Local Agency DBE Program approved in advance by the State) apply to this agreement. SECTION 2. DBE Obligation. The recipient or its the Local Agency agrees to ensure that disadvantaged business enterprises as determined by the Office of Certification at the Colorado Department of Regulatory Agencies have the maximum opportunity to participate in the performance of contracts and subcontracts financed in whole or in part with Federal funds provided under this agreement. In this regard, all participants or contractors shall take all necessary and reasonable steps in accordance with the CDOT DBE program (or a Local Agency DBE Program approved in advance by the State) to ensure that disadvantaged business enterprises have the maximum opportunity to compete for and perform contracts. Recipients and their contractors shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of CDOT assisted contracts. SECTION 3 DBE Program. The Local Agency (sub-recipient) shall be responsible for obtaining the Disadvantaged Business Enterprise Program of the Colorado Department of Transportation, 1988, as amended, and shall comply with the applicable provisions of the program. (If applicable). A copy of the DBE Program is available from and will be mailed to the Local Agency upon request: Business Programs Office Colorado Department of Transportation 4201 East Arkansas Avenue, Room 287 Denver, Colorado 80222-3400 Phone: (303) 757-9234 revised 1/22/98 Required by 49 CFR Part 23.41 12/18/2012 Exhibit H - Page 1 of 2 35. EXHIBIT H – LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES THE LOCAL AGENCY SHALL USE THESE PROCEDURES TO IMPLEMENT FEDERAL-AID PROJECT AGREEMENTS WITH PROFESSIONAL CONSULTANT SERVICES Title 23 Code of Federal Regulations (CFR) 172 applies to a federally funded local agency project agreement administered by CDOT that involves professional consultant services. 23 CFR 172.1 states “The policies and procedures involve federally funded contracts for engineering and design related services for projects subject to the provisions of 23 U.S.C. 112(a) and are issued to ensure that a qualified consultant is obtained through an equitable selection process, that prescribed work is properly accomplished in a timely manner, and at fair and reasonable cost” and according to 23 CFR 172.5 “Price shall not be used as a factor in the analysis and selection phase.” Therefore, local agencies must comply with these CFR requirements when obtaining professional consultant services under a federally funded consultant contract administered by CDOT. CDOT has formulated its procedures in Procedural Directive (P.D.) 400.1 and the related operations guidebook titled "Obtaining Professional Consultant Services". This directive and guidebook incorporate requirements from both Federal and State regulations, i.e., 23 CFR 172 and CRS §24-30-1401 et seq. Copies of the directive and the guidebook may be obtained upon request from CDOT's Agreements and Consultant Management Unit. [Local agencies should have their own written procedures on file for each method of procurement that addresses the items in 23 CFR 172]. Because the procedures and laws described in the Procedural Directive and the guidebook are quite lengthy, the subsequent steps serve as a short-hand guide to CDOT procedures that a local agency must follow in obtaining professional consultant services. This guidance follows the format of 23 CFR 172. The steps are: 1. The contracting local agency shall document the need for obtaining professional services. 2. Prior to solicitation for consultant services, the contracting local agency shall develop a detailed scope of work and a list of evaluation factors and their relative importance. The evaluation factors are those identified in C.R.S. 24-30-1403. Also, a detailed cost estimate should be prepared for use during negotiations. 3. The contracting agency must advertise for contracts in conformity with the requirements of C.R.S. 24-30-1405. The public notice period, when such notice is required, is a minimum of 15 days prior to the selection of the three most qualified firms and the advertising should be done in one or more daily newspapers of general circulation. 4. The request for consultant services should include the scope of work, the evaluation factors and their relative importance, the method of payment, and the goal of 10% for Disadvantaged Business Enterprise (DBE) participation as a minimum for the project. 5. The analysis and selection of the consultants shall be done in accordance with CRS §24-30- 1403. This section of the regulation identifies the criteria to be used in the evaluation of CDOT pre-qualified prime consultants and their team. It also shows which criteria are used to short- list and to make a final selection. The short-list is based on the following evaluation factors: a. Qualifications, b. Approach to the Work, c. Ability to furnish professional services. d. Anticipated design concepts, and e. Alternative methods of approach for furnishing the professional services. 12/18/2012 Exhibit H - Page 2 of 2 Evaluation factors for final selection are the consultant's: a. Abilities of their personnel, b. Past performance, c. Willingness to meet the time and budget requirement, d. Location, e. Current and projected work load, f. Volume of previously awarded contracts, and g. Involvement of minority consultants. 6. Once a consultant is selected, the local agency enters into negotiations with the consultant to obtain a fair and reasonable price for the anticipated work. Pre-negotiation audits are prepared for contracts expected to be greater than $50,000. Federal reimbursements for costs are limited to those costs allowable under the cost principles of 48 CFR 31. Fixed fees (profit) are determined with consideration given to size, complexity, duration, and degree of risk involved in the work. Profit is in the range of six to 15 percent of the total direct and indirect costs. 7. A qualified local agency employee shall be responsible and in charge of the Work to ensure that the work being pursued is complete, accurate, and consistent with the terms, conditions, and specifications of the contract. At the end of Work, the local agency prepares a performance evaluation (a CDOT form is available) on the consultant. 8. Each of the steps listed above is to be documented in accordance with the provisions of 49 CFR 18.42, which provide for records to be kept at least three years from the date that the local agency submits its final expenditure report. Records of projects under litigation shall be kept at least three years after the case has been settled. CRS §§24-30-1401 through 24-30-1408, 23 CFR Part 172, and P.D. 400.1, provide additional details for complying with the preceeding eight (8) steps. 12/18/2012 Exhibit I - Page 1 of 8 REQUIRED BY 23 CFR 633.102 -- 36. EXHIBIT I – FEDERAL-AID CONTRACT PROVISIONS FHWA-1273 Electronic version -- March 10, 1994 FHWA Form 1273 REQUIRED CONTRACT PROVISIONS FEDERAL-AID CONSTRUCTION CONTRACTS I. General 1 II. Nondiscrimination .................................................................................... 1 III. Non-segregated Facilities ....................................................................... 3 IV. Payment of Predetermined Minimum Wage ........................................... 3 V. Statements and Payrolls ......................................................................... 6 VI. Record of Materials, Supplies, and Labor ............................................... 6 VII. Subletting or Assigning the Contract .................................... 7 VIII. Safety: Accident Prevention ................................................. 7 IX. False Statements Concerning Highway Projects .................................... 7 X. Implementation of Clean Air Act and Federal Water Pollution Control Act ..................................................................... 8 XI. Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion ....................................................... 8 XII. Certification Regarding Use of Contract Funds for Lobbying ................................................................................................... 9 ATTACHMENTS A. Employment Preference for Appalachian Contracts (included in Appalachian contracts only) I. GENERAL 1. These contract provisions shall apply to all work performed on the contract by the contractor's own organization and with the assistance of workers under the contractor's immediate superintendence and to all work performed on the contract by piecework, station work, or by subcontract. 2. Except as otherwise provided for in each section, the contractor shall insert in each subcontract all of the stipulations contained in these Required Contract Provisions, and further require their inclusion in any lower tier subcontract or purchase order that may in turn be made. The Required Contract Provisions shall not be incorporated by reference in any case. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with these Required Contract Provisions. 3. A breach of any of the stipulations contained in these Required Contract Provisions shall be sufficient grounds for termination of the contract. 4. A breach of the following clauses of the Required Contract Provisions may also be grounds for debarment as provided in 29 CFR 5.12: Section I, paragraph 2; Section IV, paragraphs 1, 2, 3, 4, and 7; Section V, paragraphs 1 and 2a through 2g. 5. Disputes arising out of the labor standards provisions of Section IV (except paragraph 5) and Section V of these Required Contract Provisions shall not be subject to the general disputes clause of this Agreement. Such disputes shall be resolved in accordance with the procedures of the U.S. Department of Labor (DOL) as set forth in 29 CFR 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the DOL, or the contractor's employees or their representatives. 6. Selection of Labor: During the performance of this Agreement, the contractor shall not: a. discriminate against labor from any other State, possession, or territory of the United States (except for employment preference for Appalachian contracts, when applicable, as specified in Attachment A), or b employ convict labor for any purpose within the limits of the project unless it is labor performed by convicts who are on parole, supervised release, or probation. II. NONDISCRIMINATION (Applicable to all Federal-aid construction contracts and to all related subcontracts of $10,000 or more.) 1. Equal Employment Opportunity: Equal employment opportunity (EEO) requirements not to discriminate and to take affirmative action to assure equal opportunity as set forth under laws, executive orders, rules, regulations (28 CFR 35, 29 CFR 1630 and 41 CFR 60) and orders of the Secretary of Labor as modified by the provisions prescribed herein, and imposed pursuant to 23 U.S.C. 140 shall constitute the EEO and specific affirmative action standards for the contractor's project activities under this Agreement. The Equal Opportunity Construction Contract Specifications set forth under 41 CFR 60-4.3 and the provisions of the American Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) set forth under 28 CFR 35 and 29 CFR 1630 are incorporated by reference in this Agreement. In the execution of this Agreement, the contractor agrees to comply with the following minimum specific requirement activities of EEO: a. The contractor will work with the State highway agency (SHA) and the Federal Government in carrying out EEO obligations and in their review of his/her activities under the contract. b. The contractor will accept as his operating policy the following statement: "It is the policy of this Company to assure that applicants are employed, and that employees are treated during employment, without regard to their race, religion, sex, color, national origin, age or disability. Such action shall include: 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, pre-apprenticeship, and/or on-the-job training." 2. EEO Officer: The contractor will designate and make known to the SHA contracting officers an EEO Officer who will have the responsibility for and must be capable of effectively administering and promoting an active contractor program of EEO and who must be assigned adequate authority and responsibility to do so. 3. Dissemination of Policy: All members of the contractor's staff who are authorized to hire, supervise, promote, and discharge employees, or who recommend such action, or who are substantially involved in such action, will be made fully cognizant of, and will implement, the contractor's EEO policy and contractual responsibilities to provide EEO in each grade and classification of employment. To ensure that the above agreement will be met, the following actions will be taken as a minimum: a. Periodic meetings of supervisory and personnel office employees will be conducted before the start of work and then not less often than once every six months, at which time the contractor's EEO policy and its implementation will be reviewed and explained. The meetings will be conducted by the EEO Officer. b. All new supervisory or personnel office employees will be given a thorough indoctrination by the EEO Officer, covering all major aspects of the contractor's EEO obligations within thirty days following their reporting for duty with the contractor. c. All personnel who are engaged in direct recruitment for the project will be instructed by the EEO Officer in the contractor's procedures for locating and hiring minority group employees. d. Notices and posters setting forth the contractor's EEO policy will be placed in areas readily accessible to employees, applicants for employment and potential employees. e. The contractor's EEO policy and the procedures to implement such policy will be brought to the attention of employees by means of meetings, employee handbooks, or other appropriate means. 4. Recruitment: When advertising for employees, the contractor will include in all advertisements for employees the notation: "An Equal 12/18/2012 Exhibit I - Page 2 of 8 REQUIRED BY 23 CFR 633.102 -- Opportunity Employer." All such advertisements will be placed in publications having a large circulation among minority groups in the area from which the project work force would normally be derived. a. The contractor will, unless precluded by a valid bargaining agreement, conduct systematic and direct recruitment through public and private employee referral sources likely to yield qualified minority group applicants. To meet this requirement, the contractor will identify sources of potential minority group employees, and establish with such identified sources procedures whereby minority group applicants may be referred to the contractor for employment consideration. b. In the event the contractor has a valid bargaining agreement providing for exclusive hiring hall referrals, he is expected to observe the provisions of that agreement to the extent that the system permits the contractor's compliance with EEO contract provisions. (The DOL has held that where implementations of such agreements have the effect of discriminating against minorities or women, or obligates the contractor to do the same, such implementation violates Executive Order 11246, as amended.) c. The contractor will encourage his present employees to refer minority group applicants for employment. Information and procedures with regard to referring minority group applicants will be discussed with employees. 5. Personnel Actions: Wages, working conditions, and employee benefits shall be established and administered, and personnel actions of every type, including hiring, upgrading, promotion, transfer, demotion, layoff, and termination, shall be taken without regard to race, color, religion, sex, national origin, age or disability. The following procedures shall be followed: a. The contractor will conduct periodic inspections of project sites to insure that working conditions and employee facilities do not indicate discriminatory treatment of project site personnel. b. The contractor will periodically evaluate the spread of wages paid within each classification to determine any evidence of discriminatory wage practices. c. The contractor will periodically review selected personnel actions in depth to determine whether there is evidence of discrimi- nation. Where evidence is found, the contractor will promptly take corrective action. If the review indicates that the discrimination may extend beyond the actions reviewed, such corrective action shall include all affected persons. d. The contractor will promptly investigate all complaints of alleged discrimination made to the contractor in connection with his obligations under this Agreement, will attempt to resolve such complaints, and will take appropriate corrective action within a. reasonable time. If the investigation indicates that the discrimination may affect persons other than the complainant, such corrective action shall include such other persons. Upon completion of each investigation, the contractor will inform every complainant of all of his avenues of appeal. 6. Training and Promotion: a. The contractor will assist in locating, qualifying, and increasing the skills of minority group and women employees, and applicants for employment. b. Consistent with the contractor's work force requirements and as permissible under Federal and State regulations, the contractor shall make full use of training programs, i.e., apprenticeship, and on-the-job training programs for the geographical area of contract performance. Where feasible, 25 percent of apprentices or trainees in each occupation shall be in their first year of apprenticeship or training. In the event a special provision for training is provided under this Agreement, this subparagraph will be superseded as indicated in the special provision. c. The contractor will advise employees and applicants for employment of available training programs and entrance requirements for each. d. The contractor will periodically review the training and promotion potential of minority group and women employees and will encourage eligible employees to apply for such training and promotion. 7. Unions: If the contractor relies in whole or in part upon unions as a source of employees, the contractor will use his/her best efforts to obtain the cooperation of such unions to increase opportunities for minority groups and women within the unions, and to effect referrals by such unions of minority and female employees. Actions by the contractor either directly or through a contractor's association acting as agent will include the procedures set forth below: a. The contractor will use best efforts to develop, in cooperation with the unions, joint training programs aimed toward qualifying more minority group members and women for membership in the unions and increasing the skills of minority group employees and women so that they may qualify for higher paying employment. b. The contractor will use best efforts to incorporate an EEO clause into each union agreement to the end that such union will be contractually bound to refer applicants without regard to their race, color, religion, sex, national origin, age or disability. c. The contractor is to obtain information as to the referral practices and policies of the labor union except that to the extent such information is within the exclusive possession of the labor union and such labor union refuses to furnish such information to the contractor, the contractor shall so certify to the SHA and shall set forth what efforts have been made to obtain such information. d. In the event the union is unable to provide the contractor with a reasonable flow of minority and women referrals within the time limit set forth in the collective bargaining agreement, the contractor will, through independent recruitment efforts, fill the employment vacancies without regard to race, color, religion, sex, national origin, age or disability; making full efforts to obtain qualified and/or qualifiable minority group persons and women. (The DOL has held that it shall be no excuse that the union with which the contractor has a collective bargaining agreement providing for exclusive referral failed to refer minority employees.) In the event the union referral practice prevents the contractor from meeting the obligations pursuant to Executive Order 11246, as amended, and these special provisions, such contractor shall immediately notify the SHA. 8. Selection of Subcontractors, Procurement of Materials and Leasing of Equipment: The contractor shall not discriminate on the grounds of race, color, religion, sex, national origin, age or disability in the selection and retention of subcontractors, including procurement of materials and leases of equipment. a. The contractor shall notify all potential subcontractors and suppliers of his/her EEO obligations under this Agreement. b. Disadvantaged business enterprises (DBE), as defined in 49 CFR 23, shall have equal opportunity to compete for and perform subcontracts which the contractor enters into pursuant to this Agreement. The contractor will use his best efforts to solicit bids from and to utilize DBE subcontractors or subcontractors with meaningful minority group and female representation among their employees. Contractors shall obtain lists of DBE construction firms from SHA personnel. c. The contractor will use his best efforts to ensure subcontractor compliance with their EEO obligations. 9. Records and Reports: The contractor shall keep such records as necessary to document compliance with the EEO requirements. Such records shall be retained for a period of three years following completion of the contract work and shall be available at reasonable times and places for inspection by authorized representatives of the SHA and the FHWA. a. The records kept by the contractor shall document the following: (1) The number of minority and non-minority group members and women employed in each work classification on the project; (2) The progress and efforts being made in cooperation with unions, when applicable, to increase employment opportunities for minorities and women; (3) The progress and efforts being made in locating, hiring, training, qualifying, and upgrading minority and female employees; and (4) The progress and efforts being made in securing the services of DBE subcontractors or subcontractors with meaningful minority and female representation among their employees. b. The contractors will submit an annual report to the SHA each July for the duration of the project, indicating the number of minority, women, and non-minority group employees currently engaged in each work classification required by the contract work. This information is to 12/18/2012 Exhibit I - Page 3 of 8 REQUIRED BY 23 CFR 633.102 -- be reported on Form FHWA-1391. If on-the job training is being required by special provision, the contractor will be required to collect and report training data. III. NONSEGREGATED FACILITIES (Applicable to all Federal-aid construction contracts and to all related subcontracts of $10,000 or more.) a. By submission of this bid, the execution of this Agreement or subcontract, or the consummation of this material supply agreement or purchase order, as appropriate, the bidder, Federal-aid construction contractor, subcontractor, material supplier, or vendor, as appropriate, certifies that the firm does not maintain or provide for its employees any segregated facilities at any of its establishments, and that the firm does not permit its employees to perform their services at any location, under its control, where segregated facilities are maintained. The firm agrees that a breach of this certification is a violation of the EEO provisions of this Agreement. The firm further certifies that no employee will be denied access to adequate facilities on the basis of sex or disability. b. As used in this certification, the term "segregated facilities" means any waiting rooms, work areas, restrooms and washrooms, restaurants and other eating areas, timeclocks, locker rooms, and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees which are segregated by explicit directive, or are, in fact, segregated on the basis of race, color, religion, national origin, age or disability, because of habit, local custom, or otherwise. The only exception will be for the disabled when the demands for accessibility override (e.g. disabled parking). c. The contractor agrees that it has obtained or will obtain identical certification from proposed subcontractors or material suppliers prior to award of subcontracts or consummation of material supply agreements of $10,000 or more and that it will retain such certifications in its files. IV. PAYMENT OF PREDETERMINED MINIMUM WAGE (Applicable to all Federal-aid construction contracts exceeding $2,000 and to all related subcontracts, except for projects located on roadways classified as local roads or rural minor collectors, which are exempt.) 1. General: a. All mechanics and laborers employed or working upon the site of the work will be paid unconditionally and not less often than once a week and without subsequent deduction or rebate on any account [except such payroll deductions as are permitted by regulations (29 CFR 3) issued by the Secretary of Labor under the Copeland Act (40 U.S.C. 276c)] the full amounts of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment. The payment shall be computed at wage rates not less than those contained in the wage determination of the Secretary of Labor (hereinafter "the wage determi- nation") which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor or its subcontractors and such laborers and mechanics. The wage determination (including any additional classifications and wage rates conformed under paragraph 2 of this Section IV and the DOL poster (WH-1321) or Form FHWA-1495) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers. For the purpose of this Section, contributions made or costs reasonably anticipated for bona fide fringe benefits under Section 1(b)(2) of the Davis-Bacon Act (40 U.S.C. 276a) on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of Section IV, paragraph 3b, hereof. Also, for the purpose of this Section, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs, which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in paragraphs 4 and 5 of this Section IV. b. Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein, provided, that the employer's payroll records accurately set forth the time spent in each classification in which work is performed. c. All rulings and interpretations of the Davis-Bacon Act and related acts contained in 29 CFR 1, 3, and 5 are herein incorporated by reference in this Agreement. 2. Classification: a. The SHA contracting officer shall require that any class of laborers or mechanics employed under the contract, which is not listed in the wage determination, shall be classified in conformance with the wage determination. b. The contracting officer shall approve an additional classification, wage rate and fringe benefits only when the following criteria have been met: (1) the work to be performed by the additional classification requested is not performed by a classification in the wage determination; (2) the additional classification is utilized in the area by the construction industry; (3) the proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination; and (4) with respect to helpers, when such a classification prevails in the area in which the work is performed. c. If the contractor or subcontractors, as appropriate, the laborers and mechanics (if known) to be employed in the additional classification or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the DOL, Administrator of the Wage and Hour Division, Employment Standards Administration, Washington, D.C. 20210. The Wage and Hour Administrator, or an authorized representa- tive, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. d. In the event the contractor or subcontractors, as appropriate, the laborers or mechanics to be employed in the additional classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Wage and Hour Administrator for determination. Said Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary e. The wage rate (including fringe benefits where appropriate) determined pursuant to paragraph 2c or 2d of this Section IV shall be paid to all workers performing work in the additional classification from the first day on which work is performed in the classification. 3. Payment of Fringe Benefits: a. Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor or subcontractors, as appropriate, shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly case equivalent thereof. b. If the contractor or subcontractor, as appropriate, does not make payments to a trustee or other third person, he/she may consider as a part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, provided, that the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. 4. Apprentices and Trainees (Programs of the U.S. DOL) and Helpers: a. Apprentices: (1) Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed 12/18/2012 Exhibit I - Page 4 of 8 REQUIRED BY 23 CFR 633.102 -- pursuant to and individually registered in a bona fide apprenticeship program registered with the DOL, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State apprenticeship agency recognized by the Bureau, or if a person is employed in his/her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of Apprenticeship and Training or a State apprenticeship agency (where appropriate) to be eligible for probationary employment as an apprentice. (2) The allowable ratio of apprentices to journeyman-level employees on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any employee listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate listed in the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor or subcontractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman-level hourly rate) specified in the contractor's or subcontractor's registered program shall be observed. (3) Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeyman-level hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator for the Wage and Hour Division determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. (4) In the event the Bureau of Apprenticeship and Training, or a State apprenticeship agency recognized by the Bureau, withdraws approval of an apprenticeship program, the contractor or subcontractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the comparable work performed by regular employees until an acceptable program is approved. b. Trainees: (1) Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the DOL, Employment and Training Administration. (2) The ratio of trainees to journeyman-level employees on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. (3) Every trainee must be paid at not less than the rate specified in the approved program for his/her level of progress, expressed as a percentage of the journeyman-level hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman-level wage rate on the wage determination which provides for less than full fringe benefits for apprentices, in which case such trainees shall receive the same fringe benefits as apprentices. (4) In the event the Employment and Training Administration withdraws approval of a training program, the contractor or subcontractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. c. Helpers: Helpers will be permitted to work on a project if the helper classification is specified and defined on the applicable wage determina- tion or is approved pursuant to the conformance procedure set forth in Section IV.2. Any worker listed on a payroll at a helper wage rate, who is not a helper under a approved definition, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. 5. Apprentices and Trainees (Programs of the U.S. DOT): Apprentices and trainees working under apprenticeship and skill training programs which have been certified by the Secretary of Transportation as promoting EEO in connection with Federal-aid highway construction programs are not subject to the requirements of paragraph 4 of this Section IV. The straight time hourly wage rates for apprentices and trainees under such programs will be established by the particular programs. The ratio of apprentices and trainees to journeymen shall not be greater than permitted by the terms of the particular program. 6. Withholding: The SHA shall upon its own action or upon written request of an authorized representative of the DOL withhold, or cause to be withheld, from the contractor or subcontractor under this Agreement or any other Federal contract with the same prime contractor, or any other Federally- assisted contract subject to Davis-Bacon prevailing wage requirements which is held by the same prime contractor, as much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the SHA contracting officer may, after written notice to the contractor, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. 7. Overtime Requirements: No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers, mechanics, watchmen, or guards (including apprentices, trainees, and helpers described in paragraphs 4 and 5 above) shall require or permit any laborer, mechanic, watchman, or guard in any workweek in which he/she is employed on such work, to work in excess of 40 hours in such workweek unless such laborer, mechanic, watchman, or guard receives compensation at a rate not less than one-and-one-half times his/her basic rate of pay for all hours worked in excess of 40 hours in such workweek. 8. Violation: Liability for Unpaid Wages; Liquidated Damages: In the event of any violation of the clause set forth in paragraph 7 above, the contractor and any subcontractor responsible thereof shall be liable to the affected employee for his/her unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory) for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer, mechanic, watchman, or guard employed in violation of the clause set forth in paragraph 7, in the sum of $10 for each calendar day on which such employee was required or permitted to work in excess of the standard work week of 40 hours without payment of the overtime wages required by the clause set forth in paragraph 7. 9. Withholding for Unpaid Wages and Liquidated Damages: The SHA shall upon its own action or upon written request of any authorized representative of the DOL withhold, or cause to be withheld, from any monies payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other Federally- assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph 8 above. 12/18/2012 Exhibit I - Page 5 of 8 REQUIRED BY 23 CFR 633.102 -- V. STATEMENTS AND PAYROLLS (Applicable to all Federal-aid construction contracts exceeding $2,000 and to all related subcontracts, except for projects located on roadways classified as local roads or rural collectors, which are exempt.) 1. Compliance with Copeland Regulations (29 CFR 3): The contractor shall comply with the Copeland Regulations of the Secretary of Labor which are herein incorporated by reference. 2. Payrolls and Payroll Records: a. Payrolls and basic records relating thereto shall be maintained by the contractor and each subcontractor during the course of the work and preserved for a period of 3 years from the date of completion of the contract for all laborers, mechanics, apprentices, trainees, watchmen, helpers, and guards working at the site of the work. b. The payroll records shall contain the name, social security number, and address of each such employee; his or her correct classification; hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalent thereof the types described in Section 1(b)(2)(B) of the Davis Bacon Act); daily and weekly number of hours worked; deductions made; and actual wages paid. In addition, for Appalachian contracts, the payroll records shall contain a notation indicating whether the employee does, or does not, normally reside in the labor area as defined in Attachment A, paragraph 1. Whenever the Secretary of Labor, pursuant to Section IV, paragraph 3b, has found that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in Section 1(b)(2)(B) of the Davis Bacon Act, the contractor and each subcontractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, that the plan or program has been communicated in writing to the laborers or mechanics affected, and show the cost anticipated or the actual cost incurred in providing benefits. Contractors or subcontractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprentices and trainees, and ratios and wage rates prescribed in the applicable programs. c. Each contractor and subcontractor shall furnish, each week in which any contract work is performed, to the SHA resident engineer a payroll of wages paid each of its employees (including apprentices, trainees, and helpers, described in Section IV, paragraphs 4 and 5, and watchmen and guards engaged on work during the preceding weekly payroll period). The payroll submitted shall set out accurately and completely all of the information required to be maintained under paragraph 2b of this Section V. This information may be submitted in any form desired. Optional Form WH-347 is available for this purpose and may be purchased from the Superintendent of Documents (Federal stock number 029-005-0014-1), U.S. Government Printing Office, Washington, D.C. 20402. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. d. Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the contractor or subcontractor or his/her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following: (1) that the payroll for the payroll period contains the information required to be maintained under paragraph 2b of this Section V and that such information is correct and complete; (2) that such laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in the Regulations, 29 CFR 3; (3) that each laborer or mechanic has been paid not less that the applicable wage rate and fringe benefits or cash equivalent for the classification of worked performed, as specified in the applicable wage determination incorporated into the contract. e. The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall satisfy the requirement for submission of the "Statement of Compliance" required by paragraph 2d of this Section V. f. The falsification of any of the above certifications may subject the contractor to civil or criminal prosecution under 18 U.S.C. 1001 and 31 U.S.C. 231. g. The contractor or subcontractor shall make the records required under paragraph 2b of this Section V available for inspection, copying, or transcription by authorized representatives of the SHA, the FHWA, or the DOL, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, the SHA, the FHWA, the DOL, or all may, after written notice to the contractor, sponsor, applicant, or owner, take such actions as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12. VI. RECORD OF MATERIALS, SUPPLIES, AND LABOR 1. On all Federal-aid contracts on the National Highway System, except those which provide solely for the installation of protective devices at railroad grade crossings, those which are constructed on a force account or direct labor basis, highway beautification contracts, and contracts for which the total final construction cost for roadway and bridge is less than $1,000,000 (23 CFR 635) the contractor shall: a. Become familiar with the list of specific materials and supplies contained in Form FHWA-47, "Statement of Materials and Labor Used by Contractor of Highway Construction Involving Federal Funds," prior to the commencement of work under this Agreement. b. Maintain a record of the total cost of all materials and supplies purchased for and incorporated in the work, and also of the quantities of those specific materials and supplies listed on Form FHWA- 47, and in the units shown on Form FHWA-47. c. Furnish, upon the completion of the contract, to the SHA resident engineer on Form FHWA-47 together with the data required in paragraph 1b relative to materials and supplies, a final labor summary of all contract work indicating the total hours worked and the total amount earned. 2. At the prime contractor's option, either a single report covering all contract work or separate reports for the contractor and for each subcontract shall be submitted. VII. SUBLETTING OR ASSIGNING THE CONTRACT 1. The contractor shall perform with its own organization contract work amounting to not less than 30 percent (or a greater percentage if specified elsewhere in the contract) of the total original contract price, excluding any specialty items designated by the State. Specialty items may be performed by subcontract and the amount of any such specialty items performed may be deducted from the total original contract price before computing the amount of work required to be performed by the contractor's own organization (23 CFR 635). a. "Its own organization" shall be construed to include only workers employed and paid directly by the prime contractor and equipment owned or rented by the prime contractor, with or without operators. Such term does not include employees or equipment of a subcontractor, assignee, or agent of the prime contractor. b. "Specialty Items" shall be construed to be limited to work that requires highly specialized knowledge, abilities, or equipment not ordinarily available in the type of contracting organizations qualified and expected to bid on the contract as a whole and in general are to be limited to minor components of the overall contract. 2. The contract amount upon which the requirements set forth in paragraph 1 of Section VII is computed includes the cost of material and manufactured products which are to be purchased or produced by the contractor under the contract provisions. 3. The contractor shall furnish (a) a competent superintendent or supervisor who is employed by the firm, has full authority to direct performance of the work in accordance with the contract requirements, and is in charge of all construction operations (regardless of who performs the work) and (b) such other of its own organizational resources (supervision, management, and engineering services) as the SHA contracting officer determines is necessary to assure the performance of the contract. 4. No portion of the contract shall be sublet, assigned or otherwise 12/18/2012 Exhibit I - Page 6 of 8 REQUIRED BY 23 CFR 633.102 -- disposed of except with the written consent of the SHA contracting officer, or authorized representative, and such consent when given shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract. Written consent will be given only after the SHA has assured that each subcontract is evidenced in writing and that it contains all pertinent provisions and requirements of the prime contract. VIII. SAFETY: ACCIDENT PREVENTION 1. In the performance of this Agreement the contractor shall comply with all applicable Federal, State, and local laws governing safety, health, and sanitation (23 CFR 635). The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions as it determines, or as the SHA contracting officer may determine, to be reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract. 2. It is a condition of this Agreement, and shall be made a condition of each subcontract, which the contractor enters into pursuant to this Agreement, that the contractor and any subcontractor shall not permit any employee, in performance of the contract, to work in surroundings or under conditions which are unsanitary, hazardous or dangerous to his/her health or safety, as determined under construction safety and health standards (29 CFR 1926) promulgated by the Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 333). 3. Pursuant to 29 CFR 1926.3, it is a condition of this Agreement that the Secretary of Labor or authorized representative thereof, shall have right of entry to any site of contract performance to inspect or investigate the matter of compliance with the construction safety and health standards and to carry out the duties of the Secretary under Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 333). IX. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS In order to assure high quality and durable construction in conformity with approved plans and specifications and a high degree of reliability on statements and representations made by engineers, contractors, suppli- ers, and workers on Federal-aid highway projects, it is essential that all persons concerned with the project perform their functions as carefully, thoroughly, and honestly as possible. Willful falsification, distortion, or misrepresentation with respect to any facts related to the project is a violation of Federal law. To prevent any misunderstanding regarding the seriousness of these and similar acts, the following notice shall be posted on each Federal-aid highway project (23 CFR 635) in one or more places where it is readily available to all persons concerned with the project: NOTICE TO ALL PERSONNEL ENGAGED ON FEDERAL-AID HIGHWAY PROJECTS 18 U.S.C. 1020 reads as follows: "Whoever, being an officer, agent, or employee of the United States, or of any State or Territory, or whoever, whether a person, association, firm, or corporation, knowingly makes any false statement, false representation, or false report as to the character, quality, quantity, or cost of the material used or to be used, or the quantity or quality of the work performed or to be performed, or the cost thereof in connection with the submission of plans, maps, specifications, contracts, or costs of construction on any highway or related project submitted for approval to the Secretary of Transportation; or Whoever knowingly makes any false statement, false representation, false report or false claim with respect to the character, quality, quantity, or cost of any work performed or to be performed, or materials furnished or to be furnished, in connection with the construction of any highway or related project approved by the Secretary of Transportation; or Whoever knowingly makes any false statement or false representation as to material fact in any statement, certificate, or report submitted pursuant to provisions of the Federal-aid Roads Act approved July 1, 1916, (39 Stat. 355), as amended and supplemented; Shall be fined not more that $10,000 or imprisoned not more than 5 years or both." X. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT (Applicable to all Federal-aid construction contracts and to all related subcontracts of $100,000 or more.) By submission of this bid or the execution of this Agreement, or subcontract, as appropriate, the bidder, Federal-aid construction contractor, or subcontractor, as appropriate, will be deemed to have stipulated as follows: 1. That any facility that is or will be utilized in the performance of this Agreement, unless such contract is exempt under the Clean Air Act, as amended (42 U.S.C. 1857 et seq., as amended by Pub.L. 91-604), and under the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251 et seq., as amended by Pub.L. 92-500), Executive Order 11738, and regulations in implementation thereof (40 CFR 15) is not listed, on the date of contract award, on the U.S. Environmental Protection Agency (EPA) List of Violating Facilities pursuant to 40 CFR 15.20. 2. That the firm agrees to comply and remain in compliance with all the requirements of Section 114 of the Clean Air Act and Section 308 of the Federal Water Pollution Control Act and all regulations and guidelines listed thereunder. 3. That the firm shall promptly notify the SHA of the receipt of any communication from the Director, Office of Federal Activities, EPA, indicating that a facility that is or will be utilized for the contract is under consideration to be listed on the EPA List of Violating Facilities. 4. That the firm agrees to include or cause to be included the requirements of paragraph 1 through 4 of this Section X in every nonexempt subcontract, and further agrees to take such action as the government may direct as a means of enforcing such requirements. XI. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION 1. Instructions for Certification - Primary Covered Transactions: (Applicable to all Federal-aid contracts - 49 CFR 29) a. By signing and submitting this proposal, the prospective primary participant is providing the certification set out below. b. The inability of a person to provide the certification set out below will not necessarily result in denial of participation in this covered transaction. The prospective participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective primary participant to furnish a certification or an explanation shall disqualify such a person from participation in this transaction. c. The certification in this clause is a material representation of fact upon which reliance was placed when the department or agency determined to enter into this transaction. If it is later determined that the prospective primary participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause of default. d. The prospective primary participant shall provide immediate written notice to the department or agency to whom this proposal is submitted if any time the prospective primary participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. e. The terms "covered transaction," "debarred," "suspended," "ineligible," "lower tier covered transaction," "participant," "person," "primary covered transaction," "principal," "proposal," and "voluntarily excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549. You may contact the department or agency to which this proposal is submitted for assistance in obtaining a copy of those regulations. f. The prospective primary participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction. g. The prospective primary participant further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion- Lower Tier Covered Transaction," provided by the department or agency 12/18/2012 Exhibit I - Page 7 of 8 REQUIRED BY 23 CFR 633.102 -- entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. h. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the non-procurement portion of the "Lists of Parties Excluded From Federal Procurement or Non-procurement Programs" (Non-procurement List) which is compiled by the General Services Administration. I. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. j. Except for transactions authorized under paragraph f of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default. * * * * * Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion--Primary Covered Transactions 1. The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals: a. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency; b. Have not within a 3-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; c. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph 1b of this certification; and d. Have not within a 3-year period preceding this application/proposal had one or more public transactions (Federal, State or local) terminated for cause or default. 2. Where the prospective primary participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. * * * * * 2. Instructions for Certification - Lower Tier Covered Transac- tions: (Applicable to all subcontracts, purchase orders and other lower tier transactions of $25,000 or more - 49 CFR 29) a. By signing and submitting this proposal, the prospective lower tier is providing the certification set out below. b. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department, or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. c. The prospective lower tier participant shall provide immediate written notice to the person to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous by reason of changed circumstances. d. The terms "covered transaction," "debarred," "suspended," "ineligible," "primary covered transaction," "participant," "person," "principal," "proposal," and "voluntarily excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations. e. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated. f. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion- Lower Tier Covered Transaction," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. g. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the Non-procurement List. h. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. I. Except for transactions authorized under paragraph e of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. * * * * * Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion--Lower Tier Covered Transactions: 1. The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. 2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. * * * * * XII. CERTIFICATION REGARDING USE OF CONTRACT FUNDS OR LOBBYING (Applicable to all Federal-aid construction contracts and to all related subcontracts which exceed $100,000 - 49 CFR 20) 1. The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that: a. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of 12/18/2012 Exhibit I - Page 8 of 8 REQUIRED BY 23 CFR 633.102 -- any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. b. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. 2 This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. 2. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. 3. The prospective participant also agrees by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such recipients shall certify and disclose accordingly 12/18/2012 Exhibit J - Page 1 of 3 37. EXHIBIT J – FEDERAL REQUIREMENTS Federal laws and regulations that may be applicable to the Work include: A. Uniform Administrative Requirements for Agreements and Cooperative Agreements to State and Local Governments (Common Rule) The "Uniform Administrative Requirements for Agreements and Cooperative Agreements to State and Local Governments (Common Rule), at 49 Code of Federal Regulations, Part 18, except to the extent that other applicable federal requirements (including the provisions of 23 CFR Parts 172 or 633 or 635) are more specific than provisions of Part 18 and therefore supersede such Part 18 provisions. The requirements of 49 CFR 18 include, without limitation: i. the Local Agency/Contractor shall follow applicable procurement procedures, as required by section 18.36(d); ii. the Local Agency/Contractor shall request and obtain prior CDOT approval of changes to any subcontracts in the manner, and to the extent required by, applicable provisions of section 18.30; iii. the Local Agency/Contractor shall comply with section 18.37 concerning any sub- Agreements; iv. to expedite any CDOT approval, the Local Agency/Contractor's attorney, or other authorized representative, shall also submit a letter to CDOT certifying Local Agency/Contractor compliance with section 18.30 change order procedures, and with 18.36(d) procurement procedures, and with 18.37 sub-Agreement procedures, as applicable; v. the Local Agency/Contractor shall incorporate the specific contract provisions described in 18.36(i) (which are also deemed incorporated herein) into any subcontract(s) for such services as terms and conditions of those subcontracts. B. Executive Order 11246 Executive Order 11246 of September 24, 1965 entitled "Equal Employment Opportunity," as amended by Executive Order 11375 of October 13, 1967 and as supplemented in Department of Labor regulations (41 CFR Chapter 60) (All construction contracts awarded in excess of $10,000 by the Local Agencys and their contractors or sub-the Local Agencys). C. Copeland "Anti-Kickback" Act The Copeland "Anti-Kickback" Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29 CFR Part 3) (All contracts and sub-Agreements for construction or repair). D. Davis-Bacon Act The Davis-Bacon Act (40 U.S.C. 276a to a-7) as supplemented by Department of Labor regulations (29 CFR Part 5) (Construction contracts in excess of $2,000 awarded by the Local Agencys and sub-the Local Agencys when required by Federal Agreement program legislation. This act requires that all laborers and mechanics employed by contractors or sub-contractors to work on construction projects financed by federal assistance must be paid wages not less than those established for the locality of the project by the Secretary of Labor). E. Contract Work Hours and Safety Standards Act Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327- 330) as supplemented by Department of Labor regulations (29 CFR Part 5). (Construction contracts awarded by the Local Agencys and sub-the Local Agencys in excess of $2,000, and in excess of $2,500 for other contracts which involve the employment of mechanics or laborers). F. Clear Air Act Standards, orders, or requirements issued under section 306 of the Clear Air Act (42 U.S.C. 1857(h), section 508 of the Clean Water Act (33 U.S.C. 1368). Executive Order 11738, and Environmental Protection Agency regulations (40 CFR Part 15) (contracts, subcontracts, and sub-Agreements of amounts in excess of $100,000). G. Energy Policy and Conservation Act 12/18/2012 Exhibit J - Page 2 of 3 Mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94-163). H. OMB Circulars Office of Management and Budget Circulars A-87, A-21 or A-122, and A-102 or A-110, whichever is applicable. I. Hatch Act The Hatch Act (5 USC 1501-1508) and Public Law 95-454 Section 4728. These statutes state that federal funds cannot be used for partisan political purposes of any kind by any person or organization involved in the administration of federally-assisted programs. J. Nondiscrimination 42 USC 6101 et seq. 42 USC 2000d, 29 USC 794, and implementing regulation, 45 C.F.R. Part 80 et. seq. These acts require that no person shall, on the grounds of race, color, national origin, age, or handicap, be excluded from participation in or be subjected to discrimination in any program or activity funded, in whole or part, by federal funds. K. ADA The Americans with Disabilities Act (Public Law 101-336; 42 USC 12101, 12102, 12111-12117, 12131-12134, 12141-12150, 12161-12165, 12181-12189, 12201-12213 47 USC 225 and 47 USC 611. L. Uniform Relocation Assistance and Real Property Acquisition Policies Act The Uniform Relocation Assistance and Real Property Acquisition Policies Act, as amended (Public Law 91-646, as amended and Public Law 100-17, 101 Stat. 246-256). (If the contractor is acquiring real property and displacing households or businesses in the performance of the Agreement). M. Drug-Free Workplace Act The Drug-Free Workplace Act (Public Law 100-690 Title V, subtitle D, 41 USC 701 et seq.). N. Age Discrimination Act of 1975 The Age Discrimination Act of 1975, 42 U.S.C. Sections 6101 et. seq. and its implementing regulation, 45 C.F.R. Part 91; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, as amended, and implementing regulation 45 C.F.R. Part 84. O. 23 C.F.R. Part 172 23 C.F.R. Part 172, concerning "Administration of Engineering and Design Related Contracts". P. 23 C.F.R Part 633 23 C.F.R Part 633, concerning "Required Contract Provisions for Federal-Aid Construction Contracts". Q. 23 C.F.R. Part 635 23 C.F.R. Part 635, concerning "Construction and Maintenance Provisions". R. Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973 Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973. The requirements for which are shown in the Nondiscrimination Provisions, which are attached hereto and made a part hereof. S. Nondiscrimination Provisions: In compliance with Title VI of the Civil Rights Act of 1964 and with Section 162(a) of the Federal Aid Highway Act of 1973, the Contractor, for itself, its assignees and successors in interest, agree as follows: i. Compliance with Regulations The Contractor will comply with the Regulations of the Department of Transportation relative to nondiscrimination in Federally assisted programs of the Department of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the "Regulations"), which are herein incorporated by reference and made a part of this Agreement. ii. Nondiscrimination 12/18/2012 Exhibit J - Page 3 of 3 The Contractor, with regard to the work performed by it after award and prior to completion of the contract work, will not discriminate on the ground of race, color, sex, mental or physical handicap or national origin in the selection and retention of Subcontractors, including procurement of materials and leases of equipment. The Contractor will not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix C of the Regulations. iii. Solicitations for Subcontracts, Including Procurement of Materials and Equipment In all solicitations either by competitive bidding or negotiation made by the Contractor for work to be performed under a subcontract, including procurement of materials or equipment, each potential Subcontractor or supplier shall be notified by the Contractor of the Contractor's obligations under this Agreement and the Regulations relative to nondiscrimination on the ground of race, color, sex, mental or physical handicap or national origin. iv. Information and Reports The Contractor will provide all information and reports required by the Regulations, or orders and instructions issued pursuant thereto and will permit access to its books, records, accounts, other sources of information and its facilities as may be determined by the State or the FHWA to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of the Contractor is in the exclusive possession of another who fails or refuses to furnish this information, the Contractor shall so certify to the State, or the FHWA as appropriate and shall set forth what efforts have been made to obtain the information. v. Sanctions for Noncompliance In the event of the Contractor's noncompliance with the nondiscrimination provisions of this Agreement, the State shall impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: a. Withholding of payments to the Contractor under the contract until the Contractor complies, and/or b. Cancellation, termination or suspension of the contract, in whole or in part. T. Incorporation of Provisions§22 The Contractor will include the provisions of paragraphs A through F in every subcontract, including procurement of materials and leases of equipment, unless exempt by the Regulations, orders, or instructions issued pursuant thereto. The Contractor will take such action with respect to any subcontract or procurement as the State or the FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance; provided, however, that, in the event the Contractor becomes involved in, or is threatened with, litigation with a Subcontractor or supplier as a result of such direction, the Contractor may request the State to enter into such litigation to protect the interest of the State and in addition, the Contractor may request the FHWA to enter into such litigation to protect the interests of the United States. 12/18/2012 Exhibit K – Page 1 of 4 38. EXHIBIT K – SUPPLEMENTAL FEDERAL PROVISIONS State of Colorado Supplemental Provisions for Federally Funded Contracts, Grants, and Purchase Orders Subject to The Federal Funding Accountability and Transparency Act of 2006 (FFATA), As Amended As of October 15, 2010 The contract, grant, or purchase order to which these Supplemental Provisions are attached has been funded, in whole or in part, with an Award of Federal funds. In the event of a conflict between the provisions of these Supplemental Provisions, the Special Provisions, the contract or any attachments or exhibits incorporated into and made a part of the contract, the provisions of these Supplemental Provisions shall control. 1. Definitions. For the purposes of these Supplemental Provisions, the following terms shall have the meanings ascribed to them below. 1.1. “Award” means an award of Federal financial assistance that a non-Federal Entity receives or administers in the form of: 1.1.1. Grants; 1.1.2. Contracts; 1.1.3. Cooperative agreements, which do not include cooperative research and development agreements (CRDA) pursuant to the Federal Technology Transfer Act of 1986, as amended (15 U.S.C. 3710); 1.1.4. Loans; 1.1.5. Loan Guarantees; 1.1.6. Subsidies; 1.1.7. Insurance; 1.1.8. Food commodities; 1.1.9. Direct appropriations; 1.1.10. Assessed and voluntary contributions; and 1.1.11. Other financial assistance transactions that authorize the expenditure of Federal funds by non-Federal Entities. Award does not include: 1.1.12. Technical assistance, which provides services in lieu of money; 1.1.13. A transfer of title to Federally-owned property provided in lieu of money; even if the award is called a grant; 1.1.14. Any award classified for security purposes; or 1.1.15. Any award funded in whole or in part with Recovery funds, as defined in section 1512 of the American Recovery and Reinvestment Act (ARRA) of 2009 (Public Law 111-5). 1.2. “Central Contractor Registration (CCR)” means the Federal repository into which an Entity must enter the information required under the Transparency Act, which may be found at http://www.bpn.gov/ccr. 1.3. “Contract” means the contract to which these Supplemental Provisions are attached and includes all Award types in §1.1.1 through 1.1.11 above. 1.4. “Contractor” means the party or parties to a Contract funded, in whole or in part, with Federal financial assistance, other than the Prime Recipient, and includes grantees, subgrantees, Subrecipients, and borrowers. For purposes of Transparency Act reporting, Contractor does not include Vendors. 1.5. “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. 12/18/2012 Exhibit K - Page 2 of 4 1.6. “Entity” means all of the following as defined at 2 CFR part 25, subpart C; 1.6.1. A governmental organization, which is a State, local government, or Indian Tribe; 1.6.2. A foreign public entity; 1.6.3. A domestic or foreign non-profit organization; 1.6.4. A domestic or foreign for-profit organization; and 1.6.5. A Federal agency, but only a Subrecipient under an Award or Subaward to a non-Federal entity. 1.7. “Executive” means an officer, managing partner or any other employee in a management position. 1.8. “Federal Award Identification Number (FAIN)” means an Award number assigned by a Federal agency to a Prime Recipient. 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.” 1.10. “Prime Recipient” means a Colorado State agency or institution of higher education that receives an Award. 1.11. “Subaward” means a legal instrument pursuant to which a Prime Recipient of Award funds awards all or a portion of such funds to a Subrecipient, in exchange for the Subrecipient’s support in the performance of all or any portion of the substantive project or program for which the Award was granted. 1.12. “Subrecipient” means a non-Federal Entity (or a Federal agency under an Award or Subaward to a non-Federal Entity) receiving Federal funds through a Prime Recipient to support the performance of the Federal project or program for which the Federal funds were awarded. A Subrecipient is subject to the terms and conditions of the Federal Award to the Prime Recipient, including program compliance requirements. The term “Subrecipient” includes and may be referred to as Subgrantee. 1.13. “Subrecipient Parent DUNS Number” means the subrecipient parent organization’s 9-digit Data Universal Numbering System (DUNS) number that appears in the subrecipient’s Central Contractor Registration (CCR) profile, if applicable. 1.14. “Supplemental Provisions” means these Supplemental Provisions for Federally Funded Contracts, Grants, and Purchase Orders subject to the Federal Funding Accountability and Transparency Act of 2006, As Amended, as may be revised pursuant to ongoing guidance from the relevant Federal or State of Colorado agency or institution of higher education. 1.15. “Total Compensation” means the cash and noncash dollar value earned by an Executive during the Prime Recipient’s or Subrecipient’s preceding fiscal year and includes the following: 1.15.1. Salary and bonus; 1.15.2. Awards of stock, stock options, and stock appreciation rights, using the dollar amount recognized for financial statement reporting purposes with respect to the fiscal year in accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2005) (FAS 123R), Shared Based Payments; 1.15.3. Earnings for services under non-equity incentive plans, not including group life, health, hospitalization or medical reimbursement plans that do not discriminate in favor of Executives and are available generally to all salaried employees; 1.15.4. Change in present value of defined benefit and actuarial pension plans; 1.15.5. Above-market earnings on deferred compensation which is not tax-qualified; 1.15.6. Other compensation, if the aggregate value of all such other compensation (e.g. severance, termination payments, value of life insurance paid on behalf of the 12/18/2012 Exhibit K - Page 3 of 4 employee, perquisites or property) for the Executive exceeds $10,000. 1.16. “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. 1.17 “Vendor” means a dealer, distributor, merchant or other seller providing property or services required for a project or program funded by an Award. A Vendor is not a Prime Recipient or a Subrecipient and is not subject to the terms and conditions of the Federal award. Program compliance requirements do not pass through to a Vendor. 2. Compliance. Contractor shall comply with all applicable provisions of the Transparency Act and the regulations issued pursuant thereto, including but not limited to these Supplemental Provisions. Any revisions to such provisions or regulations shall automatically become a part of these Supplemental Provisions, without the necessity of either party executing any further instrument. The State of Colorado may provide written notification to Contractor of such revisions, but such notice shall not be a condition precedent to the effectiveness of such revisions. 3. Central Contractor Registration (CCR) and Data Universal Numbering System (DUNS) Requirements. 3.1. CCR. Contractor shall maintain the currency of its information in the CCR until the Contractor submits the final financial report required under the Award or receives final payment, whichever is later. Contractor shall review and update the CCR information at least annually after the initial registration, and more frequently if required by changes in its information. 3.2. DUNS. Contractor shall provide its DUNS number to its Prime Recipient, and shall update Contractor’s information in Dun & Bradstreet, Inc. at least annually after the initial registration, and more frequently if required by changes in Contractor’s information. 4. Total Compensation. Contractor shall include Total Compensation in CCR for each of its five most highly compensated Executives for the preceding fiscal year if: 4.1. The total Federal funding authorized to date under the Award is $25,000 or more; and 4.2. In the preceding fiscal year, Contractor received: 4.2.1. 80% or more of its annual gross revenues from Federal procurement contracts and subcontracts and/or Federal financial assistance Awards or Subawards subject to the Transparency Act; and 4.2.2. $25,000,000 or more in annual gross revenues from Federal procurement contracts and subcontracts and/or Federal financial assistance Awards or Subawards subject to the Transparency Act; and 4.3. The public does not have access to information about the compensation of such Executives 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. 5. Reporting. Contractor shall report data elements to CCR and to the Prime Recipient as required in §7 below if Contractor is a Subrecipient for the Award pursuant to the Transparency Act. No direct payment shall be made to Contractor for providing any reports required under these Supplemental Provisions and the cost of producing such reports shall be included in the Contract price. The reporting requirements in §7 below are based on guidance from the US Office of Management and Budget (OMB), and as such are subject to change at any time by OMB. Any such changes shall be automatically incorporated into this Contract and shall become part of Contractor’s obligations under this Contract, as provided in §2 above. The Colorado Office of the State Controller will provide summaries of revised OMB reporting 12/18/2012 Exhibit K - Page 4 of 4 requirements at http://www.colorado.gov/dpa/dfp/sco/FFATA.htm. 6. Effective Date and Dollar Threshold for Reporting. The effective date of these supplemental provisions apply to new Awards as of October 1, 2010. Reporting requirements in §7 below apply to new Awards as of October 1, 2010, if the initial award is $25,000 or more. If the initial Award is below $25,000 but subsequent Award modifications result in a total Award of $25,000 or more, the Award is subject to the reporting requirements as of the date the Award exceeds $25,000. If the initial Award is $25,000 or more, but funding is subsequently de-obligated such that the total award amount falls below $25,000, the Award shall continue to be subject to the reporting requirements. 7. Subrecipient Reporting Requirements. If Contractor is a Subrecipient, Contractor shall report as set forth below. 7.1 To CCR. A Subrecipient shall register in CCR and report the following data elements in CCR for each Federal Award Identification Number no later than the end of the month following the month in which the Subaward was made: 7.1.1 Subrecipient DUNS Number; 7.1.2 Subrecipient DUNS Number + 4 if more than one electronic funds transfer (EFT) account; 7.1.3 Subrecipient Parent DUNS Number; 7.1.4 Subrecipient’s address, including: Street Address, City, State, Country, Zip + 4, and Congressional District; 7.1.5 Subrecipient’s top 5 most highly compensated Executives if the criteria in §4 above are met; and 7.1.6 Subrecipient’s Total Compensation of top 5 most highly compensated Executives if criteria in §4 above met. 7.2 To Prime Recipient. A Subrecipient shall report to its Prime Recipient, upon the effective date of the Contract, the following data elements: 7.2.1 Subrecipient’s DUNS Number as registered in CCR. 7.2.2 Primary Place of Performance Information, including: Street Address, City, State, Country, Zip code + 4, and Congressional District. 8. Exemptions. 8.1. These Supplemental Provisions do not apply to an individual who receives an Award as a natural person, unrelated to any business or non-profit organization he or she may own or operate in his or her name. 8.2 A Contractor with gross income from all sources of less than $300,000 in the previous tax year is exempt from the requirements to report Subawards and the Total Compensation of its most highly compensated Executives. 8.3 Effective October 1, 2010, “Award” currently means a grant, cooperative agreement, or other arrangement as defined in Section 1.1 of these Special Provisions. On future dates “Award” may include other items to be specified by OMB in policy memoranda available at the OMB Web site; Award also will include other types of Awards subject to the Transparency Act. 8.4 There are no Transparency Act reporting requirements for Vendors. 9. Event of Default. Failure to comply with these Supplemental Provisions shall constitute an event of default under the Contract and the State of Colorado may terminate the Contract upon 30 days prior written notice if the default remains uncured five calendar days following the termination of the 30 day notice period. This remedy will be in addition to any other remedy available to the State of Colorado under the Contract, at law or in equity. 12/18/2012 Resolution No. 37, Series 2012 RESOLUTION NO. 37 Series of 2012 A RESOLUTION APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE TOWN OF VAIL, AND THE COLORADO DEPARTMENT OF TRANSPORTATION REGARDING REVIEW OF DESIGN WORK OF THE TOV MUNICIPAL COMPLEX DEVELOPMENT; AND SETTING FORTH DETAILS IN REGARD THERETO. WHEREAS, the Town of Vail (the “Town”), in the County of Eagle and State of Colorado is a home rule municipal corporation duly organized and existing under the laws of the State of Colorado and the Town Charter (the “Charter”); WHEREAS, the members of the Town Council of the Town (the “Council”) have been duly elected and qualified; WHEREAS, the Town will design the work for a development in between and adjacent to I-70 and the South Frontage Road; WHEREAS, the Town desires to provide funds to Colorado Department of Transportation (“CDOT”) to review the design work of the TOV Municipal complex development (the “Project”); WHEREAS, the Town and CDOT desire to enter into an Intergovernmental Agreement (IGA) outlining the scope of work; and WHEREAS, the Council’s approval of Resolution No. 37, Series 2012, is required to enter into an IGA. NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: Section 1. The Council hereby approves and authorizes the Town Manager to enter into an Intergovernmental Agreement with CDOT, in substantially the same form as attached hereto as Exhibit A and in a form approved by the Town Attorney. Section 2. This Resolution shall take effect immediately upon its passage. INTRODUCED, PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Vail held this 18th day of December, 2012. _________________________ Andy P. Daly, Town Mayor ATTEST: _____________________________ Lorelei Donaldson, Town Clerk 12/18/2012 Page 1 of 8 (State $CDOTWRK) PROJECT CO 0702-326 (19093) REGION 6/(JH/WMA) INTERGOVERNMENTAL AGREEMENT THIS CONTRACT made this ___ day of ________________ 20___, by and between the State of Colorado for the use and benefit of the Colorado Department of Transportation hereinafter referred to as the State and the Town of Vail, 1309 Elkhorn Drive, Vail, Colorado, 81657, CDOT Vendor #: 2000003 hereinafter referred to as the “Contractor” or the “Local Agency.” RECITALS 1. Authority exists in the law and funds have been budgeted, appropriated and otherwise made available and a sufficient uncommitted balance thereof remains available for payment of project and CDOT costs in Fund Number 400, Function 1350, GL Acct. 4518000010, WBS Element 19093.10.50, (Contract Encumbrance Amount $0.00). 2. Required approval, clearance and coordination have been accomplished from and with appropriate agencies. 3. Pursuant to §§43-2-103 and 43-2-112 CRS as amended, the State may contract with Local Agencies to provide maintenance and construction of highways that are part of the state (or local agency) highway system. 4. The Local Agency will design the work for a development in between and adjacent to I-70 and the South Frontage Road in the Town of Vail, Colorado. 5. The Local Agency desires to provide funds to CDOT to review the design work of the Steadman Philippon Research Facility & TOV Municipal complex development, and provide input on the project detailed in the Scope of Work and Form 463, Exhibit A, referred to as the “Project” or the “Work”. 6. The Local Agency has funds available and desires to provide 100% of the Work to be performed by CDOT. 7. The Local Agency and CDOT agree that the fee for the review of the design work will be $64,321.00. 8. This contract is executed under the authority of §§ 29-1-203, 43-1-110; 43-1-116, 43-2-101(4)(c) and 43-2-144, CRS. Routing # 13 HA3 50632 SAP # 331000615 FOR CDOT TRACKING PURPOSES (subject to change). 12/18/2012 Page 2 of 8 THE PARTIES NOW AGREE THAT: Section 1. Scope of Work The Project or Work under this Agreement shall consist of CDOT reviewing the design work of the Steadman Philippon Research Facility & TOV Municipal complex development and provide input on the project in the Town of Vail, and more specifically described in Exhibit A. Section 2. Order of Precedence In the event of conflicts or inconsistencies between this Agreement and its exhibits, such conflicts or inconsistencies shall be resolved by reference to the documents in the following order of priority: 1. This Agreement 2. Exhibit A (Scope of Work and Form 463) 3. Other Exhibits in descending order of their attachment. Section 3. Term The term of this Agreement shall begin on the date of execution by the CDOT Controller, or her Designee. This Agreement shall terminate one (1) year from the date of execution, unless sooner terminated or extended upon written agreement by both Parties. Section 4. Project Funding Provisions A. The Local Agency and CDOT have estimated the total cost of the work and the Local Agency is prepared to provide the funding for the work, as evidenced by an appropriate ordinance or resolution duly passed and adopted by the authorized representatives of the Local Agency, which expressly authorizes the Local Agency to enter into this Agreement and to expand its funds for the project. A copy of this ordinance or resolution is attached hereto and incorporated herein as Exhibit B. B. The Local Agency and CDOT has estimated the total cost of the work to be $64,321.00 which is to be funded as follows: a. Local Agency Funds $64,321.00 b. Total Funds $64,321.00 C. The maximum amount payable by the Local Agency under this Agreement shall be $64,321.00, unless such amount is increased by an appropriate written modification to this contract executed before any increased cost is incurred. It is understood and agreed by the parties hereto that the total cost of the work stated hereinbefore is the best estimate available, based on the design data as approved at the time of execution of this contract, and that such cost is subject to revisions (in accord with the procedure in the previous sentence) agreeable 12/18/2012 Page 3 of 8 to the parties prior to bid and award. D. The parties hereto agree that this Agreement is contingent upon all funds designated for the project herein being made available from state sources, as applicable. Should these sources fail to provide necessary funds as agreed upon herein, the Agreement may be terminated by either party, provided that any party terminating its interest and obligations herein shall not be relieved of any obligations which existed prior to the effective date of such termination or which may occur as a result of such termination. Section 5. Project Payment Provisions A. The Local Agency will reimburse the State for incurred costs relative to the project following the Local Agency's review and approval of such charges, subject to the terms and conditions of this contract. B. If the Local Agency is to be billed for CDOT incurred costs, the billing procedure shall be as follows: 1. Upon receipt of each bill from the State, the Local Agency will remit to the State the amount billed no later than 60 days after receipt of each bill. Should the Local Agency fail to pay moneys due the State within 60 days of demand or within such other period as may be agreed between the parties hereto, the Local Agency agrees that, at the request of the State, the State Treasurer may withhold an equal amount from future apportionment due the Local Agency from the Highway Users Tax Fund and to pay such funds directly to the State. Interim funds, until the State is reimbursed, shall be payable from the State Highway Supplementary Fund (400). 2. If the Local Agency fails to make timely payment to the State as required by this section (within 60 days after the date of each bill), the Local Agency shall pay interest to the State at a rate of one percent per month on the amount of the payment which was not made in a timely manner, until the billing is paid in full. The interest shall accrue for the period from the required payment date to the date on which payment is made. C. The State will prepare and submit to the Local Agency, no more than monthly, charges for costs incurred relative to the project. The State’s invoices shall include a description of the amounts of services performed, the dates of performance and the amounts and description of reimbursable expenses. The invoices will be prepared in accordance with the State’s standard policies, procedures and standardized billing format. Section 6. Utilities If necessary, the Responsible Party will be responsible for obtaining the proper clearance or approval from any utility company, which may become involved in this Project. Prior to this Project being advertised for bids, the Responsible Party will certify in writing to the State that all such clearances have been obtained. 12/18/2012 Page 4 of 8 Section 7. Environmental Obligations CDOT shall perform all Work in accordance with the requirements of the current federal and state environmental regulations including the National Environmental Policy Act of 1969 (NEPA) as applicable. Section 8. Termination Provisions Either Party may terminate this Agreement at any time. Either of the Parties may terminate their participation in this Agreement by giving ninety (90) days’ written notice to the other parties. Section 9. Legal Authority The Local Agency warrants that it possesses the legal authority to enter into this contract and that it has taken all actions required by its procedures, by-laws, and/or applicable law to exercise that authority, and to lawfully authorize its undersigned signatory to execute this contract and to bind the Local Agency to its terms. The person(s) executing this contract on behalf of the Local Agency warrants that such person(s) has full authorization to execute this contract. Section 10. Representatives and Notice The State will provide liaison with the Local Agency through the State's Region 3 Director, 714 Grand Avenue, PO Box 298, Eagle, CO 81631. Said Region Director will also be responsible for coordinating the State's activities under this. All communications relating to the day-to-day activities for the work shall be exchanged between representatives of the State’s Transportation Region 3 and the Local Agency. All communication, notices, and correspondence shall be addressed to the individuals identified below. Either party may from time to time designate in writing new or substitute representatives. If to State: Jennifer Babcock, PE CDOT Region 3 Project Manager 714 Grand Avenue, PO Box 298 Eagle, CO 81631 (970) 328-9936 If to the Local Agency: George Ruther, AICP Director of Community Development Town of Vail 1309 Elkhorn Drive Vail, CO 81631 970-328-9936 12/18/2012 Page 5 of 8 Section 11. Successors Except as herein otherwise provided, this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Section 12. Third Party Beneficiaries The Parties to this Agreement do not intend to benefit any person not a party to this Agreement. No person or entity, other than the Parties to this Agreement, shall have any right, legal or equitable to enforce any provision of this Agreement. Section 13. Severability To the extent that this Agreement may be executed and performance of the obligations of the parties may be accomplished within the intent of the contract, the terms of this contract are severable, and should any term or provision hereof be declared invalid or become inoperative for any reason, such invalidity or failure shall not affect the validity of any other term or provision hereof. Section 14. Waiver The waiver of any breach of a term, provision, or requirement of this Agreement shall not be construed or deemed as a waiver of any subsequent breach of such term, provision, or requirement, or of any other term, provision or requirement. Section 15. Entire Understanding This Agreement embodies the entire agreement about its subject matter among the Parties and supersedes all prior agreements and understandings, if any. Section 16. Survival of Contract Terms Notwithstanding anything herein to the contrary, the parties understand and agree that all terms and conditions of this Agreement and the exhibits and attachments hereto which may require continued performance, compliance or effect beyond the termination date of the Agreement shall survive such termination date and shall be enforceable by the State as provided herein in the event of such failure to perform or comply by the Local Agency. Section 17. Modification of Terms and Conditions This Agreement is subject to such modifications as may be required by changes in State law, or their implementing regulations. Any such required modification shall automatically be incorporated into and be part of this Agreement on the effective date of such change as if fully set forth herein. Except as provided above, no modification of this Agreement shall be effective unless agreed to in writing by both parties in an amendment to this Agreement that is properly executed and approved in 12/18/2012 Page 6 of 8 accordance with applicable law. Section 18. Disputes Should disputes or disagreements occur of any matter relating to the responsibilities identified in this Agreement, both CDOT and CCD shall collaborate to resolve the dispute. If the persons identified in Section 12 of this Agreement cannot achieve resolution within a thirty (30) day period, the matter shall be submitted jointly to the City and County of Denver’s Mayor or his/her designee and CDOT’s Chief Engineer for final resolution of the dispute. If the Mayor of the City and County of Denver and CDOT’s Chief Engineer are unable to resolve the dispute within a thirty (30) day period, this Agreement will terminate. The Parties agree that participation in this administrative procedure shall be a condition precedent to initiation of litigation, except in the case of emergency or other conditions that entitle either Party to injunctive or emergency relief from a court of competent jurisdiction, in which no participation in the foregoing alternative dispute resolution process will be required. Section 19. Local Agency, State Not Agents of Each Other It is expressly understood and agreed that the State and the Local Agency shall not in any respect be deemed agents of each other, but shall be deemed to each be an independent contractor. THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK 12/18/2012 Page 7 of 8 Section 20. These Special Provisions apply to all contracts except where noted in italics. 1. CONTROLLER'S APPROVAL. CRS §24-30-202(1). This contract shall not be valid until it has been approved by the Colorado State Controller or designee. 2. FUND AVAILABILITY. CRS §24-30-202(5.5). Financial obligations of the State payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. 3. GOVERNMENTAL IMMUNITY. No term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, of the Colorado Governmental Immunity Act, CRS §24-10-101 et seq., or the Federal Tort Claims Act, 28 U.S.C. §§1346(b) and 2671 et seq., as applicable now or hereafter amended. 4. INDEPENDENT CONTRACTOR. Contractor shall perform its duties hereunder as an independent contractor and not as an employee. Neither Contractor nor any agent or employee of Contractor shall be deemed to be an agent or employee of the State. Contractor 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 Contractor or any of its agents or employees. Unemployment insurance benefits will be available to Contractor and its employees and agents only if such coverage is made available by Contractor or a third party. Contractor shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this contract. Contractor shall not have authorization, express or implied, to bind the State to any agreement, liability or understanding, except as expressly set forth herein. Contractor shall (a) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (b) provide proof thereof when requested by the State, and (c) be solely responsible for its acts and those of its employees and agents. 5. COMPLIANCE WITH LAW. Contractor shall strictly comply with all applicable federal and State laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices. 6. CHOICE OF LAW. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this contract. Any provision included or incorporated herein by reference which conflicts with said laws, rules, and regulations shall be null and void. Any provision incorporated herein by reference which purports to negate this or any other Special Provision in whole or in part shall not be valid or enforceable or available in any action at law, whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision shall not invalidate the remainder of this contract, to the extent capable of execution. 7. BINDING ARBITRATION PROHIBITED. The State of Colorado does not agree to binding arbitration by any extra-judicial body or person. Any provision to the contrary in this contact or incorporated herein by reference shall be null and void. 8. SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00. State or other public funds payable under this contract shall not be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. Contractor hereby certifies and warrants that, during the term of this contract and any extensions, Contractor has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that Contractor is in violation of this provision, the State may exercise any remedy available at law or in equity or under this contract, including, without limitation, immediate termination of this contract and any remedy consistent with federal copyright laws or applicable licensing restrictions. 9. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. CRS §§24-18-201 and 24-50-507. The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this contract. Contractor has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of Contractor’s services and Contractor shall not employ any person having such known interests. 10. VENDOR OFFSET. CRS §§24-30-202 (1) and 24-30-202.4. [Not Applicable to intergovernmental agreements] Subject to CRS §24-30-202.4 (3.5), the State Controller may withhold payment under the State’s vendor offset intercept system for debts owed to State agencies for: (a) unpaid child support debts or child support arrearages; (b) unpaid balances of tax, accrued interest, or other charges specified in CRS §39-21-101, et seq.; (c) unpaid loans due to the Student Loan Division of the Department of Higher Education; (d) amounts required to be paid to the Unemployment Compensation Fund; and (e) other unpaid debts owing to the State as a result of final agency determination or judicial action. 11. PUBLIC CONTRACTS FOR SERVICES. CRS §8-17.5-101. [Not Applicable to agreements relating to the offer, issuance, or sale of securities, investment advisory services or fund management services, sponsored projects, intergovernmental agreements, or information technology services or products and services] Contractor certifies, warrants, and agrees that it does not knowingly employ or contract with an illegal alien who will perform work under this contract and will confirm the employment eligibility of all employees who are newly hired for employment in the United States to perform work under this contract, through participation in the E-Verify Program or the Department program established pursuant to CRS §8-17.5-102(5)(c), Contractor shall not knowingly employ or contract with an illegal alien to perform work under this contract or enter into a contract with a subcontractor that fails to certify to Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this contract. Contractor (a) shall not use E-Verify Program or Department program procedures to undertake pre-employment screening of job applicants while this contract is being performed, (b) shall notify the subcontractor and the contracting State agency within three days if Contractor has actual knowledge that a subcontractor is employing or contracting with an illegal alien for work under this contract, (c) shall terminate the subcontract if a subcontractor does not stop employing or contracting with the illegal alien within three days of receiving the notice, and (d) shall comply with reasonable requests made in the course of an investigation, undertaken pursuant to CRS §8-17.5-102(5), by the Colorado Department of Labor and Employment. If Contractor participates in the Department program, Contractor shall deliver to the contracting State agency, Institution of Higher Education or political subdivision a written, notarized affirmation, affirming that Contractor has examined the legal work status of such employee, and shall comply with all of the other requirements of the Department program. If Contractor fails to comply with any requirement of this provision or CRS §8-17.5-101 et seq., the contracting State agency, institution of higher education or political subdivision may terminate this contract for breach and, if so terminated, Contractor shall be liable for damages. 12. PUBLIC CONTRACTS WITH NATURAL PERSONS. CRS §24-76.5-101. Contractor, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that he or she (a) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (b) shall comply with the provisions of CRS §24-76.5-101 et seq., and (c) has produced one form of identification required by CRS §24-76.5-103 prior to the effective date of this contract. Revised 1-1-09 SPECIAL PROVISIONS 12/18/2012 Page 8 of 8 THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT LOCAL AGENCY: STATE OF COLORADO: JOHN W. HICKENLOOPER, GOVERNOR TOWN OF VAIL CDOT Vendor Number: 2000003 By Timothy J. Harris, PE, Chief Engineer for Donald E. Hunt, Executive Director Department of Transportation Print Name and Title of Authorized Officer Signature of Authorized Officer LOCAL AGENCIES: (A Local Agency seal or attestation is required) Attest (Seal) By: (Secretary or Equivalent, or Town/City/County Clerk) ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER CRS 24-30-202 requires that the State Controller approve all state contracts. This contract is not valid until the State Controller, or such assistant as he may delegate, has signed it. The contractor is not authorized to begin performance until the contract is signed and dated below. If performance begins prior to the date below, the State of Colorado may not be obligated to pay for the goods and/or services provided. STATE CONTROLLER: DAVID J. MCDERMOTT, CPA By: Date: 12/18/2012 Exhibit A Exhibit A – Page 1 of 4 Scope of Work and Form 463 THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK 12/18/2012 Exhibit A Exhibit A – Page 2 of 4 12/18/2012 Exhibit A Exhibit A – Page 3 of 4 12/18/2012 Exhibit A Exhibit A – Page 4 of 4 12/18/2012 Exhibit B Exhibit B – Page 1 of 1 LOCAL AGENCY ORDINANCE or RESOLUTION 12/18/2012 Resolution No. 38, Series 2012 RESOLUTION NO. 38 Series of 2012 A RESOLUTION APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE TOWN OF VAIL AND EAGLE RIVER FIRE PROTECTION DISTRICT; AND SETTING FORTH DETAILS IN REGARD THERETO. WHEREAS, the Town of Vail (the “Town”), in the County of Eagle and State of Colorado is a home rule municipal corporation duly organized and existing under the laws of the State of Colorado and the Town Charter (the “Charter”); WHEREAS, the members of the Town Council of the Town (the “Council”) have been duly elected and qualified; WHEREAS, the Town desires to partner with Eagle River Fire Protection District (ERFPD) to fund a training chief position to be employed by ERFPD, to provide contract services to Vail Fire Department (VFD); WHEREAS, the VFD and ERFPD wish to enter into this Intergovernmental Agreement (IGA) setting forth each of the Parties’ rights and obligations concerning the funding of the Training Chief position and receipt of training services from ERFPD; and WHEREAS, the Council’s approval of Resolution No. 38, Series 2012, is required to enter into an IGA. NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: Section 1. The Council hereby approves and authorizes the Town Manager to enter into an Intergovernmental Agreement with ERFPD, in substantially the same form as attached hereto as Exhibit A and in a form approved by the Town Attorney. Section 2. This Resolution shall take effect immediately upon its passage. INTRODUCED, PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Vail held this 18th day of December, 2012. _________________________ Andy P. Daly, Town Mayor ATTEST: _____________________________ Lorelei Donaldson, Town Clerk 12/18/2012 {00302577.DOC / 4} INTERGOVERNMENTAL AGREEMENT CONCERNING THE COOPERATIVEUSE OF A TRAINING CHIEF This Intergovernmental Agreement Concerning the CooperativeUse of a Training Chief (“Agreement”) is entered into as of day of December, 2012 by and between the Eagle River Fire Protection District, a quasi-municipal corporation and political subdivision of the State of Colorado(“ERFPD”),and the Vail Fire Department acting through the Town of Vail, a home rule and municipal corporation(“VFD”), collectively, the “Parties”or “Entities.” RECITALS A.ERFPD wascreated under the Colorado Special District Act, §§ 32-1-101, et seq., C.R.S.for the purpose of providing fire protection functions, services and facilities. VFD is a department within the Town of Vail and is authorized to provide fire protection functions, services and facilities pursuantto Section 1.2 of the Town of Vail Home Rule Charter and Section 1-7-1 of the Vail Municipal Code. B.The state constitution and § 29-1-203, C.R.S., authorize the Parties to contract with one another to provide any function, service or facility lawfully authorized to each.The Fire Chiefs areauthorized to run the operations of and to hire personnel on behalf of their respective Entities. C.The Parties have identified a common need for training chief services. The Parties desire to work cooperatively to fund a training chief position (“Training Chief”)to be employedby ERFPD, to provide contract services to VFDin accordance with the terms of this Agreement. The Parties may enter into additional agreements concerning thecooperativeuse of training facilities and other mattersof common interest. D.ERFPDis willing and able to employthe Training Chief. The Parties wish to enter into this Agreementsetting forth each of the Parties’rights and obligationsconcerning the funding of the Training Chiefposition and receipt of training services from ERFPD. NOW THEREFORE, for good and valuable mutual consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: AGREEMENT I.Engagement of a Training Chief. A.The Training Chief shall be hired and employed by ERFPD. ERFPD shall be the sole employer of the Training Chief. ERFPD shall be responsible for determining the qualification and job description for the Training Chief, however, minimum qualifications for the position and job duties for the Training Chief for ERFPD to 12/18/2012 {00302577.DOC / 4}2 receive payment for services under this Agreementare attached hereto as Exhibit A, which may be amended from time to time. B.The Fire Chiefs shall review the resumes or applications of the candidates for the Training Chief positionand collectively determine the candidates they wish to jointly interview. After initial interviews, the Fire Chiefs shall determine the candidates to becalled back for second interviews. C.ERFPDshall conduct its standard pre-hiring screeningprocedure forall candidates selected for second interviews. D.The Fire Chiefs shall conduct second interviews and recommend acandidate for the Training Chiefposition.ERFPD shall complete its standard hiring process for the selected candidate. Upon due consideration of the recommendation of the Fire Chiefs, ERFPD shall, in its sole discretion, determinewhich candidate to employ. II.Training Chief Compensation. The Training Chief will be employed solely by ERFPD. The responsibility to hire and supervise, including promote, discipline and terminate remains solely with ERFPD. As such, ERFPD shall be solely responsible for payment of all salary, wages and other compensation, reimbursement of expenses, liability and workers’ compensation insurance, pension and for withholding payroll taxes for the Training Chief. III.Payment for Services. A.VFD shall pay to ERFPD one-fourth of the Compensation Package amount as set forth on Exhibit B, attached hereto and incorporated herein, for training services to be provided by ERFPD through the Training Chief. Such amountis based upon a one-fourth share to VFDof the anticipated costs to ERFPD associated with employment of the Training Chief. The compensation and benefits actually paid by ERFPD to the Training Chief shall be determined by ERFPD in its sole discretion. B.The costs of services under this Agreement shall be reviewed on an annual basis on or before November1st for each subsequent year. Any modification of the cost of services shall be only upon mutual agreement. VFDmay terminate its participation in this Agreement for failure to agree to an increase in the cost of services associated with ERFPD’s employment of the Training Officer, effective January 1st of the subsequent year. IV.Utilization of the Training Chief. A.The primary function of the Training Chief shall be to oversee a joint firefighter training program for the Parties. 12/18/2012 {00302577.DOC / 4}3 B.VFDshall receive training services from ERFPD provided through the Training Chief, equivalent to one-fourth of thehours worked by a full-time employee. The Fire Chiefs shall use a good faith effort to share such trainingservices on a quarterly basis. C.ERFPDshall be responsible for coordinating and allocating thetrainingservices with VFD through itsFire Chief or designee. D.On a monthly basis, ERFPD shall prepare a summarized report for VFD describing thetraining services providedduring the prior month, the amount of time spent on each activity, and the allocation of time to each Entity. The report shall contain a running summary for the year of the Training Chief’s time allocated to eachof the Parties. V.Payment of Services. ERFPD shall invoice VFDfor itscosts for training serviceson a quarterly basis. Payments shall be due within thirty(30) days of receipt of any invoice. VI.Term. AThe term of this Agreementshall be for a period of five (5) years, with the option torenew for one additional five(5)year term. B.EitherParty to this Agreement may terminate itsinterest effective as of December 31st of each year, upon giving sixty(60) days prior written notice to the other Party, including notice of any non-appropriation of funds for the subsequent fiscal year. VII.General Provisions. A.This Agreementshall be governed by and construed in accordance with the laws of the State of Colorado. B.This Agreementdoes not create a multiple fiscal year debt for ERFPD or VFD. Funding of the Training Chief positionby ERFPD and payments for training services by VFDshall be subject to annual appropriationby each of the Parties. C.Should any provision of this Agreementor the application thereof, to any extent, be held invalid or unenforceable, the remainder of this Agreementand the application thereof other than those provisions as to which it shall have been held invalid or unenforceable, shall not be affected thereby and shall continue in full force and effect and shall be enforceable to the fullest extent permitted by law or in equity. D.This Agreementembodies the entire agreement between the Parties hereto concerning the subject matter hereof and supersedes all prior conversations, proposals, negotiations, understandings and agreements, whether written or oral. 12/18/2012 {00302577.DOC / 4}4 E.All exhibitsattached to this Agreementand referred to herein shall for all purposes be deemed to be incorporated in this Agreementby this reference and made a part hereof. F.In the event of any litigationbetween the Parties hereto concerning the subject matter hereof, the prevailing party in such litigationshall be entitled to receive all reasonable costs and expenses, including reasonable attorneys’fees, incurred by the prevailing party in such litigation. G.This Agreementshall not be modified except by a written agreement executed and acknowledged by all of the Parties hereto and attached as an addendum. H.Each of the Parties represents to the othersthat ithas full power and authority to execute, deliver and perform this Agreement, that this Agreementconstitutes a valid and legally binding obligation of such Party. I.Notices, invoices, and other communications required or permitted to be given shall be in writing, and delivered personally, sent electronically with a hard copy sent by First Class mail, or sent by U.S. mail, postage prepaid, addressed to the Parties at their addresses of record. EXECUTED as of the date first written above. EAGLE RIVER FIRE PROTECTION DISTRICT By: President ATTEST: By: Secretary TOWN OF VAIL By: Stan Zemler, Town Manager Attest: Lorelei Donaldson, Town Clerk 12/18/2012 {00302577.DOC / 4}5 EXHIBIT A Job Description -Division Chief of Training This position is responsible for developing and maintaining the work related skills and proficiency of the personnel whose agency participates in the Intergovernmental Agreement Concerning the CooperativeUse of a Training Chief. For each of the Participating Agencies, the Training Chief will develop training programs that emphasize position-appropriateprofessional development, ensure the scheduling of training, provide instruction, liaise with the Colorado Division of Fire Prevention and Control on matters related to training, coordinate certifications and maintain training records. The Training Chief makes budgetary recommendations that serve to enhance the overall effectiveness of the Participating Agencies’ training programs. This position reports to the Fire Chief of the Eagle River Fire Protection District, but works closely and coordinates with the Fire Chiefs and staffs of the Participating Agencies. General Statement of Duties: Coordinates, schedules and implements training for members that maintain and enhance individual and team performance. Develops programs that lead to member certification. Provides basic training for new members and skill maintenance of existing members. Serves as a coordinator for matters related to training between the Participating Agencies and the Colorado Division of Fire Prevention and Control, Colorado Department of Health and Colorado Mountain College for all fire and emergency medical certifications. Represents the Participating Agencies in training issues of local and statewide concern. Responds to major incidents as requested by the Participating Agencies. Assists with fire ground command functions as may be required and assigned at major incidents. Maintains the Participating Agencies’ training records. Performs other duties as assigned. Essential Functions Develop training programs appropriate for each rank that promotes operational consistency allowing employees to work collaboratively between Agencies using the same skills. Develop a system to assess knowledge, skills and abilities of all ranks at each agency. Performs strenuous physical tasks before, during and after the emergency response, and often for extended periods of time. Performs fire suppression tasks and other emergency functions at heights and in confined spaces. Enters hazardous atmospheres and other conditions that may present great personal risk. 12/18/2012 {00302577.DOC / 4}6 Operates motor vehicles to and from the scene of emergencies and may operate fire pumps and other power equipment. Operates department staff vehicles. Operates computer equipment, phones, and other office equipment as necessary; completes reports. Maintains certified Fire Officer I or equivalent and State of Colorado Emergency Medical Technician. Obtains Fire Inspector I certification within 2 years. Enters hazardous atmospheres and other conditions that may present great personal risk. Communicates with voice over two-way radio. Communicates with voice to members of the community and to members of the team. Gives verbal presentations to live audiences ranging from children to adults. Possesses the ability to remain calm in life threatening or other critical situations. Minimum Requirements Must possess State of Colorado Fire Officer I, Fire Instructor I, Proctor, and Emergency Medical Technician certifications. Must possess a valid State of Colorado driver’s license. Must possess a HighSchool Diploma or equivalent. Ability to work as a manager of a team, in critical or life threatening circumstances. Ability to resolve and solve problems and conflicts with professionalism. Possesses excellent teaching, presentation and communication abilities. Experience in computer applications and databases. Ability to demonstrate strenuous physical tasks. I understand the description of the job and the essential functions as given above. I also understand that all of the duties are not described and that I will perform all duties as directed by my supervisor and management. This job description supersedesany previous description of the duties and functions of Division Chief of Training. Signing this job description in no way guarantees continued employment in this position. I understand that I am an at-will employee and that I may end this employment at any time, Eagle River Fire Protection District has the same right. Signature Date Print Name 12/18/2012 {00302577.DOC / 4}7 EXHIBIT B Compensation Package -Division Chief of Training Training Chief Regular Full-Time Wages79,404.00 Regular Part-Time Wages0.00 Pay for Performance Bonus0.00 Overtime Wages (FLSA)0.00 Uniform Allowance500.00 FT Pension8,734.44 PTS Pension0.00 Wellness0.00 Employee Assistance Program9.00 FICA/Medicare1,158.61 Group Health and Life Insurance12,146.21 Long-Term Disability Insurance –FPPA2,064.50 Workers’Compensation4,067.11 Unemployment Insurance239.71 Long-term Disability347.04 Short term Disability159.00 30K Life & ADD (Prudential)54.36 Total Salary & Benefits108,883.99 12/18/2012 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: December 18, 2012 ITEM/TOPIC: Town Manager Report: Town Council letter to US Forest Service supporting proposed Vail Mountain 2012 Recreation Enhancements Project - Kelli McDonald PRESENTER(S): Various ATTACHMENTS: TOV Letter of Support 12/18/2012 Office ofthe Mayor 75 South Frontage Road Vail Colorado 81657December 18, 2012 970-479-2106 Fax: 970-479-2157 Scott Fitzwilliams www.vailgov.com Forest Supervisor clo Don Dressler Winter Sports Program Manager White River National Forest PO Box 190 Minturn, CO 81645 Additionally, sent via email: comment@vailreceis.info RE: Vail Mountain 2012 Recreation Enhancements Project Dear Mr. Fitzwilliams: For several years now, the Vail Town Council has been monitoring the progress of Vail Resorts, in conjunction with the National Ski Areas Association, to amend the Ski Area Permit Act of 1986 that would not only update the legislation to include recreational activity taking place today on U.S. Forest Service lands, but create the potential to increase the amount of year-round activities, and most notably for us, in our backyard, on Vail Mountain. We had previously expressed our support of this update in legislation, and were thrilled to see its approval in late 2011, known as the Ski Area Recreational Opportunities Enhancement Act. We now want to express our support for Vail Resorts' proposed Vail Mountain 2012 Recreation Enhancements Project, pending your thorough environmental review. We applaud the ski company's leadership and expenditure of time and energy to put themselves first in the pipeline with numerous new, exciting activities within its existing Special Use Permit boundary. The interpretive and educational components of the proposed plans are evidence as to why Vail Resorts is the leader in recreational offerings and environmental stewardship within the ski industry. The educational aspects will set the bar high as they are intertwined with an exhilarating canopy tour or Forest Flyer uses on Forest Service lands, and will be a great draw for current and new summer guests. We hope, too, that we will see greater Forest Service presence on the mOLintain providing the education. Recognizing that Vail Resorts are outstanding stewards of the public lands that they lease from you, and that your oversight has ensured our collective guests experience our great outdoors in world-class fashion, for the Town of Vail, the additional reasons we hope you will approve Vail's proposed activities under the name Epic Discovery are: o IlECYCLED PAPER 12/18/2012 • As we continue to collect information, the Town of Vail is on pace for a record summer in 2012 in terms of sales tax revenues; we have invested a great deal in marketing, special events and holding true to our world-class brand. To be able to offer our summer guest another strong reason to stay an additional night or two by way of Epic Discovery has tremendous potential in our minds. • We have been planning for years how to most effectively bolster incremental room nights during the shoulder and summer seasons. There is more traffic on Interstate 70 in the summer months than in the winter. Epic Discovery will provide additional variety by way of new outdoor recreation experiences for our guests who are already here, or need a greater incentive to pull off 1-70. • Vail is one of the top three summer destination spots in the state. We applaud Vail Resorts for identifying the ability to launch summer mountain activities where the entire community can leverage existing visitation. • Year-round resort activities will create year-round jobs, not only on the mountain but throughout our business community in Vail Village and Lionshead as the additional activities will allow local businesses to stay open longer in the shoulder seasons. Stabilizing our workforce goes hand in hand with stabilizing our resort­ based economy. • Just last year, our survey results put hiking as the number one activity for our summer guest. We are so pleased that Vail has an opportunity to place additional hiking, wayfinding and mountain bike trails into its proposed plans for summer activity. Thank you for the opportunity to comment during this scoping period. We look forward to reviewing the draft Environmental Impact Statement when it is issued. Sincerely, TOWN OF VAIL Andy P. Daly, Mayor XC: Vail Town Council 12/18/2012 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: December 18, 2012 ITEM/TOPIC: Second reading of Ordinance No. 20, Series 2012, 2012 Budget Amendment PRESENTER(S): Kathleen Halloran ACTION REQUESTED OF COUNCIL: Approve or approve with amendments Ordinance No. 20, Series 2012 BACKGROUND: Please see attached memo STAFF RECOMMENDATION: Approve or approve with amendments Ordinance No. 20, Series 2012 ATTACHMENTS: 3rd Supp 12/18/2012 TO: Vail Town Council FROM: Finance Department DATE: December 13, 2012 SUBJECT: 2012 Budget Amendment – Ordinance No. 20, Series 2012 I. SUMMARY Staff is requesting approval of Ordinance No. 20 upon second reading, the third budget supplemental appropriation this year. II. DISCUSSION The following changes have occurred since the second reading of this ordinance: Capital Projects Fund: • As of the first reading, staff was still finalizing estimated costs for the Library. During the project several unexpected issues such as excessive ground water encountered during excavation, unsuitable existing soils conditions, and existing structural and mechanical conditions requiring correction. At this time, staff estimates $150,000 will be required to complete the project. The Capital Projects Fund will be reimbursed by the Vail Reinvestment Authority for this same amount, from unused project funds this year. 12/18/2012 2012 2012 Original1st 20122nd20123rdProposedBudgetSupplementalAmendedSupplementalAmendedSupplementalAmendedComments RevenueLocal Taxes: 17,800,000 $ -$ 17,800,000$ 1,100,000$ 18,900,000$ 18,900,000$ Sales Tax Split b/t Gen'l Fund & Capital Fund 61/3961/3961/3961/39 Sales Tax 10,859,000 $ -$ 10,859,000$ 671,000$ 11,530,000$ 11,530,000$ Property and Ownership4,232,000 - 4,232,000 - 4,232,000 4,232,000 Ski Lift Tax 3,492,000 - 3,492,000 - 3,492,000 3,492,000 Franchise Fees, Penalties, and Other Taxes1,11 2,753 - 1,112,753 (75,000) 1,037,753 1,037,753 Licenses & Permits 955,000 - 955,000 200,000 1,155,000 1,155,000 Intergovernmental Revenue 1,911,250 - 1,911,250 - 1,911,250 76,900 1,988,150 Wildland deployment reimbursement Transportation Centers 4,425,000 - 4,425,000 (586,000) 3,839,000 3,839,000 Charges for Services 774,850 - 774,850 24,746 799,596 30,000 829,596 Police contract overtime Fines & Forfeitures 325,000 - 325,000 - 325,000 325,000 Earnings on Investments 116,900 - 116,900 - 116,900 116,900 Rental Revenue 869,816 - 869,816 60,000 929,816 929,816 Miscellaneous and Project Reimbursements207,000 25,000 232,000 70,000 302,000 32,000 334,000 EverVail legal fee reimbursement $30K; Library don ation $2K Total Revenue 29,280,569 25,000 29,305,569 364,746 29,670,315 138,900 29,809,215 ExpendituresSalaries 13,679,222 16,500 13,695,722 30,649 13,726,371 106,900 13,833,271 $76.9K Wildland deployment; $30K Police contract overtime (reimbursments above) Benefits 4,597,131 - 4,597,131 3,265 4,600,396 4,600,396 Subtotal Compensation and Benefits18,276,353 16,500 18,292,853 33,914 18,326,767 106,900 18,433,667 Contributions and Special Events1,383,318 105,000 1,488,318 44,900 1,533,218 8,000 1,541,218 Additional winter hours for information booths All Other Operating Expenses6,222,776 142,450 6,365,226 170,850 6,536,076 89,175 6,625,251 $65K legal fees ($30K reimbursed above); $15.3K VVI assessment; $8,875 bank charges for credit card usage Heavy Equipment Operating Charges2,253,304 - 2,253,304 25,000 2,278,304 2,278,304 Heavy Equipment Replacement Charges547,008 - 547,008 - 547,008 547,008 Dispatch Services 575,706 - 575,706 - 575,706 575,706 Total Expenditures 29,258,465 263,950 29,522,415 274,664 29,797,079 204,075 30,001,154 Revenue Over (Under) Expenditures22,104 (238,950) (216,846) 90,082 (126,764) (65,175) (191,939) Transfer to Capital Projects Fund - - - (50,000) (50,000) (2,000) (52,000) Additional library donation to be used for renovati on project 2015 World Alpine Ski Championships (250,000) - (250,000) - (250,000) (250,000) Pro-cycling event (75,000) 75,000 - - - - 2015 Nation's Event (375,000) - (375,000) - (375,000) (375,000) Vail's 50th Anniversary (250,000) - (250,000) (100,000) (350,000) (350,000) Total Expenditures 30,208,465 188,950 30,397,415 424,664 30,822,079 206,075 31,028,154 Surplus Net of Transfers & New Programs (927,896) (1,091,846) (1,151,764) (1,218,939) Beginning Fund Balance 21,645,224 1,901,061 23,546,285 - 23,546,285 23,546,285 Ending Fund Balance20,717,328$ 22,454,439$ 22,394,521$ 22,327,346$ EHOP balance included in ending fund balance - not spendable 690,000$ 690,000$ 690,000$ 690,000$ TOWN OF VAIL 2012 BUDGET SUMMARY OF REVENUE, EXPENDITURES AND CHANGES IN FUND BALANCE GENERAL FUND - 2 - 12/18/2012 2012 2012 Original1st 20122nd20123rdProposedBudgetSupplementalAmendedSupplementalAmendedSupplementalAmendedProject Information Total Sales Tax Revenue:17,800,000$ -$ 17,800,000$ 1,100,000$ 18,900,000$ -$ 18,900,000$ Sales Tax Split between General Fund & Capital Fund 61/3961/3961/3961/3961/39Sales Tax - Capital Projects Fund6,941,000$ -$ 6,941,000$ 429,000$ 7,370,000$ -$ 7,370,000$ Use Tax 515,000 - 515,000 485,000 1,000,000 200,000 1,200,000 Federal Grant Revenue - 828,000 828,000 - 828,000 356,000 1,184,000 2012:$828K for bridge reconstruction; $356K for buses purchased earlier this year Lease Revenue 188,160 - 188,160 - 188,160 - 188,160 Per Vail Commons commercial and residenti al leases Employee Housing Fee-In-Lieu- 70,000 70,000 70,000 70,000 Recognize YTD collections Project Reimbursement - 174,435 174,435 174,435 - 174,435 2012: $111K shared costs for I-70 Noise projects (h omeowners $8K, CDOT $93K and ERWSD $10K); $28,783 energy rebates; $34,652 reimb from VRD for tenant finishes in Welcome Center office space Earnings on Investments and Other67,500 - 67,500 - 67,500 13,500 81,000 Recognize use of Traffic Impact Fee Total Revenue 7,711,660 1,072,435 8,784,095 914,000 9,698,095 569,500 10,267,595 Maintain Town AssetsBus Shelters 30,000 - 30,000 - 30,000 - 30,000 Annual maintenance; New shelter at Simb a Run Parking Structures 640,000 - 640,000 30,000 670,000 - 670,000 $30K for moveable gate near skier drop off in LH; Various repairs including deck topping replacement, expansion joint repairs, ventilation, HVAC, plumbin g and other structural repairs; Since 2010 there is an offset from VRA (see transfer near bottom of sheet) ; Starting in 2012 there are estimated energy savin gs of $50K per year Facilities Capital Maintenance815,000 129,799 944,799 (30,000) 914,799 (15,800) 898,999 Transfer $15.8K to Creekside Housing unit renovatio ns ; Re-appropriate $129K to continue replacement of Bus Barn garage doors; 2012: $152K a ir handling unit for Municipal bldg; $83K repairs t o wood siding, $50K PW shop garage doors and $18K exh aust system at PW Shops; $75K snowmelt boiler system repairs; $38K for Transit office floo rs and walls; $30K for Library wood siding and wind ow repairs; Some energy savings $25K per year for 2012 and 2013 Gore Range Condo Units 2E, 2W & 3W- - - 30,000 30,000 - 30,000 Gore Range Townhomes special assessment for exterio r improvements such as stairways and decks (3 units, $10K each) Creekside Housing Improvements385,000 - 385,000 - 385,000 15,800 400,800 Need to gut plumbing; electrical wiring; roofing, e tc.; asbestos and mold remediation; 4 units were completed in 2010; 4 in 2011; complete remaining 4 units in 2012 and replace exterior siding, stairs a nd decks Donovan Park Pavilion50,000 - 50,000 - 50,000 - 50,000 2012: $50K furniture replacement; 2014: $400K to ch ange ventilation & improve noise and $270K to replace heating/air system; 2016 $50K furniture rep lacement Street Light Improvements 50,000 - 50,000 - 50,000 - 50,000 New street lights and to refurbish resi dential lighting Capital Street Maintenance1,000,078 - 1,000,078 - 1,000,078 (160,000) 840,078 $160K transfer to Matterhorn Bridge project ; On-going maintenance to roads and bridges includi ng asphalt overlays, patching and repairs; 2012 - 2014 were previously updated for recent bid prices (savings of $925K); Assumes that we do not see a dr amatic increase from current prices and that reconstruction of neighborhood roads and bridges occurs (without reconstruction, maintenance costs wil l increase) Relocation of Recycling Center- - - 140,000 140,000 - 140,000 Relocation of recycling center currently at Communi ty Development parking area; This project will be completed prior to the municipal site redevelopment Flood incident repairs - 349,192 349,192 - 349,192 - 349,192 Relating to flood repairs: Reconstruct a portion of Rockledge drainage improvements, Big Horn Creek culvert repair/replacement at Columbine and Spruce Way, Booth Creek improvements to mitigate future flooding of culverts, tennis courts and playgrounds . Fire Truck Replacement590,000 - 590,000 - 590,000 - 590,000 2012 replace pumper truck from 1994; 2014 replace pumper truck from 1999 Town-wide camera system12,000 - 12,000 - 12,000 - 12,000 $12K per year for replacement of cameras and record ers (49 cameras and 3 recorders around town so far; will be adding for Transit and Welcome Centers ); Recorders cost $7-8K each; cameras range from $800 - $3800 each Document Imaging 30,000 75,000 105,000 - 105,000 - 105,000 Supplement for continuation of historical scanning (outside vendor); 2012: Purchase of storage devices ($20K) remainder for increased scanning and storag e in preparation for the municipal relocation/move (Finance, Comm Dev) Software Licensing 40,000 - 40,000 - 40,000 - 40,000 Annual renewal of software licenses Hardware Purchases 48,000 46,000 94,000 - 94,000 - 94,000 Upgrade Microsoft products on all equipment; renew licenses in future; Costs have increased from vendors; 2012 addition: $16K Ipads purchased for bo ards; $30K relating to accelerated projects due to move, mainly related to the town's remote desktop s erver, or RDS Data Center (Computer Rooms)15,000 - 15,000 - 15,000 - 15,000 Based on annual replacement schedule of security and power systems for 3 computer rooms Website and e-commerce29,000 32,700 61,700 - 61,700 - 61,700 Re-appropriate to continue website rede velopment; Internet security & application interfac es Comm Dev ArcGIS System- - - - - - - Web access to town GIS informatio n (similar to County's website GIS product) Fiber Optics in Buildings23,000 - 23,000 - 23,000 - 23,000 Cabling / Network Infrastructure; to r epair, maintain & upgrade Network upgrades 35,000 - 35,000 - 35,000 - 35,000 Computer network systems - replacement cycle every 3-5 years TOWN OF VAIL 2012 BUDGET CAPITAL PROJECTS FUND SUMMARY OF REVENUE, EXPENDITURES AND CHANGES IN FUN D BALANCE - 3 - 12/18/2012 2012 2012 Original1st 20122nd20123rdProposedBudgetSupplementalAmendedSupplementalAmendedSupplementalAmendedProject InformationTOWN OF VAIL 2012 BUDGET CAPITAL PROJECTS FUND SUMMARY OF REVENUE, EXPENDITURES AND CHANGES IN FUN D BALANCE Phone System Infrastructure35,000 - 35,000 - 35,000 - 35,000 Replace infrastructure for 15-year old phone system; Full cost to replace the phone system currently o n unfunded list until Municipal site redevelopment de cision Public Safety System 59,000 - 59,000 - 59,000 - 59,000 Annual capital maintenance of "County-wide "Compute r Aided Dispatch/Records Mgmt System" ; includes patrol car and fire truck laptops and soft ware used to push information to TOV and other agencies; TOV portion of Intergraph software mainte nance Business Systems Replacement175,000 225,000 400,000 - 400,000 - 400,000 Replace 15-year old financial system; continued sup port to current system questionable; better technology; $17K for Comm Dev Permit system update Radio Tower (Vail R56) - 30,000 30,000 30,000 60,000 - 60,000 Town's portion of wireless communication equipment upgrade - Radio tower will be replaced and location moved from outside of Council chambers to outside of Dispatch center; Offset by Dispatch $10K below Intergraph software upgrade- 80,000 80,000 - 80,000 - 80,000 Re-appropriate for TOV portion of upgrade to comput er-aided dispatch system - project scheduled for Fall '12 Police breathalizer replacement10,000 - 10,000 - 10,000 - 10,000 State mandated replacement of 13-yr old equipment; may eventually be offset with grant revenue Police rifle replacement21,250 - 21,250 - 21,250 - 21,250 Replacement of 21-year old rifles (17 u nits) Total Maintenance4,092,328 967,691 5,060,019 200,000 5,260,019 (160,000) 5,100,019 Enhancement of Town AssetsCDOT Required Parking630,000 - 630,000 - 630,000 526,000 1,156,000 2012: LionsHead and guardrail in West Vail on N. Ft g Rd; Increase of $396K based on Council approval of bid award plus $130K due to poor subgra de conditions encountered during project; 2013: Cascade; 2014: Safeway and Vail Village Vail Village Info Booth1,100,000 - 1,100,000 - 1,100,000 - 1,100,000 Remodel, including addition of restrooms and some guest enhancement Vail Village Info Booth pull in lane250,000 - 250,000 - 250,000 - 250,000 Pull off lane in front of Vail Village info booth f or short term parking and to provide an area for an RV or larger vehicle to pull in for information LionsHead Info Booth - - - 25,000 25,000 - 25,000 Proposed demolition of old LionsHead Information Ce nter Guest Service Enhancements: LH Welcome center (VRA) - 269,156 269,156 85,544 354,700 - 354,700 Transferred from Welcome Center project based on Co uncil-approved plan in 2011 for expenses relating to design and hard cost of media, signage, etc. Gue st information improvements town-wide, including pedestrian signage, parking structures, banners at VV & LH Guest Service Enhancements / Wayfinding1,100,000 1,100,000 419,1101,519,110 - 1,519,110 Guest Service / Wayfinding enhancements outside of VRA district Main Vail Fire Station - 50,000 50,000 100,000 150,000 150,000 300,000 Design/architecture for remodel of Main Vail statio n as approved by Council on June 5th; $150K for two employee housing units - paid for with Buy-Down funds below . Remainder of project included in 2013 budget Energy Enhancements - 1,133,021 1,133,021 - 1,133,021 - 1,133,021 Implementation of energy audit enhancements (includes reimb from VRA, RETT, and GF); Fire Equipment 32,000 - 32,000 - 32,000 - 32,000 $12K Thermal image camera for new truck ; $20K set of equipment for ladder truck East Meadow Drive-Streetscape- 380,000 380,000 - 380,000 - 380,000 Work approved by Council April 3rd; Reconstruction of E. Meadow Drive bus path from La Bottega to start of Solaris Neighborhood Road Reconstruction- 10,000 10,000 - 10,000 - 10,000 Re-appropriate $10K to cover design costs spent to get the Vail Valley Dr.project ready to bid (project has been delayed); 2013-2016 East Vail roads; Incre ase of $425K in 2013 for shared project with ERWSD on Rockledge Rd 2013 also includes $200K for planning / design of roadwork in 2014-2016 Neighborhood Bridge Reconstruction- 1,051,815 1,051,815 100,000 1,151,815 260,000 1,411,815 Matterhorn Bridge reconstruction delayed due to CDO T fiscal year and requirements; Partial funding from federal grant; Nugget Lane and Bridge Rd bridg es design in 2013 and construction in 2014 to coincide with federal grants. Council approved a budget increase of $100K on July 3rd with bid award; Additional $160K due to soils and utilities issues. Radio Equipment replacement (pub. works, pub. safety) 48,000 - 48,000 - 48,000 - 48,000 Replacement of 2008 radios for PW, Fire , PD Hybrid Bus Battery Replacement55,000 - 55,000 - 55,000 - 55,000 Scheduled replacement: 1 in 2012; 7 in 2014; Estimated life of 6 years Replace Buses - 1,245,978 1,245,978 - 1,245,978 - 1,245,978 2012: 2 Hybrid buses ordered in 2011; take d elivery in 2012 Timber Ridge Legal/Zoning- 17,315 17,315 - 17,315 - 17,315 Continuation of negotiations Total Enhancements3,215,000 4,157,285 7,372,285 729,654 8,101,939 936,000 9,037,939 New AssetsMunicipal Redevelopment- 760,209 760,209 120,000 880,209 - 880,209 Estimated costs for architecture and design $513K p lus project management $247K; Based on approved contracts; $120K for developer agreement with Triu mph Welcome Center (VRA)304,700 973,444 1,278,144 (354,700) 923,444 - 923,444 Continuation of the project; Includes $34K reimburs ement from VRD for tenant finishes;Funded by the Vail Reinvestment Authority (see Transfers below); Transferring $354.7K to Guest Service Enhancement project above based on Council approved plan from 2 011 East LionsHead Portal (VRA)2,075,000 41,289 2,116,289 - 2,116,289 - 2,116,289 Re-appropriation; Design work approved by Council F eb 1st; Originally budgeted entire project in 2012; Funded by the Vail Reinvestment Authority (East LH Circle) - 4 - 12/18/2012 2012 2012 Original1st 20122nd20123rdProposedBudgetSupplementalAmendedSupplementalAmendedSupplementalAmendedProject InformationTOWN OF VAIL 2012 BUDGET CAPITAL PROJECTS FUND SUMMARY OF REVENUE, EXPENDITURES AND CHANGES IN FUN D BALANCE West LionsHead Portal (VRA)750,000 22,500 772,500 - 772,500 - 772,500 Re-appropriation; Design work approved by Council F eb 1st; Originally budgeted entire project in 2012; Funded by the Vail Reinvestment Authority (Concert Hall Plaza) Library Remodel (VRA)1,600,000 451,728 2,051,728 50,000 2,101,728 152,000 2,253,728 $150K required to complete the project; $2K of Library grant dollars (for a total of $52K) for additional technology enhancements to community roo m; Re-appropriation plus $350K additional approved by Council March 20th; Funded by the Vail Reinvestment Authority (see Transfers below); This project would add additional community space on mai n level, with offices and community room on basement level; includes elevator as required by co de Sundial Plaza (VRA)850,000 - 850,000 - 850,000 - 850,000 Fountain needs to be removed or significant repairs/replacement; Stairways; Adjoining park could be improved rather than try to find a location for a n ew LH park. A "new" LH park was on Unfunded list f or $800K; $285K of this amount would be to improve the connection of walkways up toward First Chair West Vail Fire Station - 7,500 7,500 - 7,500 - 7,500 Final bills for West Vail Fire Statio n Buy-down Program - 552,118 552,118 - 552,118 (150,000) 402,118 Carry forward program funding; $150K in 2012 used for two EHU's at the Main Vail F .S. Buy-down Program Funded by Pay -in-Lieu- 537,803 537,803 - 537,803 - 537,803 Carry forward current balance of program funding: Housing funded directly by Pay-in-Lieu fees collecte d from developers; Variable Message Signs / Way-Finding Improvements 100,000 49,954 149,954 (149,954) - - - 2012: replacement of two ramp signs at Main Vail ($ 200K); Transferring to Guest Service / Wayfinding above I-70 Noise - 350,183 350,183 - 350,183 - 350,183 Re-appropriate for utility relocation for Bald Mountain berm extension Underground Utility improvements- 121,200 121,200 - 121,200 - 121,200 Re-appropriate for continuation of projects: East Vail on Bighorn Rd and Golf Course to Ford Park; Reimbursements from homeowners totaling $55,000 ($5 K from East Vail and $50K from residents near golf course), Vail Rec District ($15K) and Holy Cro ss directly funding $43,000 for East Vail project Total New Assets:5,679,700 3,867,928 9,547,628 (334,654) 9,212,974 2,000 9,214,974 Total Capital before Financing12,987,028 8,992,904 21,979,932 595,000 22,574,932 778,000 23,352,932 Debt Service and FinancingDebt Service on Outstanding Bonds2,088,346 - 2,088,346 - 2,088,346 - 2,088,346 Annual debt service payments Timber Ridge Debt Service Guarantee- 925,000 925,000 - 925,000 - 925,000 Annual debt service guarantee - requireme nt of TR debt Total Debt Service and Financing:2,088,346 925,000 3,013,346 - 3,013,346 - 3,013,346 Total Expenditures15,075,374 9,917,904 24,993,278 595,000 25,588,278 778,000 26,366,278 Other Financing Sources (Uses)Transfer from Vail Reinvestment Authority6,546,700 2,488,874 9,035,574 - 9,035,574 - 9,035,574 2012: LH Portal improvements $2.9M, Sundial plaza $ 850K, $2.0 Library remodel, CDOT-Required parking $102K in LH, LH Pkg mtc $365K, LH Welcome Center $1.1M, Guest Svcs $710K; Energy enhancements $953K; Transfer from General Fund- - - 50,000 50,000 2,000 52,000 Transfer from GF from Library grants fo r Library renovation of community room Transfer from Dispatch Fund- - - 10,000 10,000 - 10,000 Transfer from Dispatch for Radio Tower project Revenue Over (Under) Expenditures(817,014) (6,356,595) (7,173,609) 379,000 (6,794,609) (206,500) (7,001,109) Beginning Fund Balance8,988,8309,459,90918,448,739- 18,448,739- 18,448,739 Ending Fund Balance8,171,816 11,275,130 11,654,130 11,447,630 *Promissory note due from Childrens' Garden of Leaning included in ending fund balance - not spendable 5,000 5,000 5,000 5,000 - 5 - 12/18/2012 2012 2012 Original1st 20122nd20123rdProposedBudgetSupplementalAmendedSupplementalAmendedSupplementalAmended Comments Real Estate Transfer Tax 3,835,000$ -$ 3,835,000$ -$ 3,835,000$ -$ 3,835,000$ 2012 "base" sales 20% less than 2010 Golf Course Lease126,888 - 126,888 - 126,888 - 126,888 Annual lease payment from Vail Recreation District 2% annual increase - deposited to "Recreation Enhancement Account" (accompanying expenditure list ed below) Intergovenmental Revenue20,000 - 20,000 - 20,000 - 20,000 $20K Lottery fund proceeds Project Reimbursements15,000 1,150,000 1,165,000 - 1,165,000 21,660 1,186,660 $1.165M VRD portion for Golf Course Clubhouse const ruction; $21.6K reimbursement from Eagle County for recycling hauling program Recreation Amenity Fees10,000 - 10,000 - 10,000 - 10,000 Earnings on Investments and Other68,000 - 68,000 - 68,000 - 68,000 Total Revenue 4,074,888 1,150,000 5,224,888 - 5,224,888 21,660 5,246,548 Maintain Town AssetsAnnual Park and Landscape Maintenance1,350,140 - 1,350,140 - 1,350,140 - 1,350,140 Ongoing path, park and open space maintenance, project mgmt Management Fee to General Fund (5%)191,750 - 191,750 - 191,750 - 191,750 5% of RETT Collections - fee remitted to the General Fund for administration Rec. Path Capital Maint93,395 - 93,395 - 93,395 - 93,395 Capital maintenance of the town's recreation path s ystem; 2012 includes $50K to replace deer screen at Dowd Junction and $15K for pedestrian bridge inspections Tree Maintenance 65,000 25,000 90,000 - 90,000 - 90,000 Re-appropriate for Aspen tree scale; Regular maintenance for tree health within the town (spraying, removing, new trees); scale spraying on town-owned property at approx. $120 per tree; Initiating tree-planting program for lost trees Forest Health Management195,000 - 195,000 - 195,000 - 195,000 Pine beetle mitigation in conjunction w/ forest service (Crew of 6 during spring/summer mont hs) Street Furniture Replacement25,000 - 25,000 - 25,000 - 25,000 Annual replacement or capital repairs, includes bike racks Park / Playground Capital Maintenance85,000 - 85,000 - 85,000 - 85,000 2012 includes paving paths to Stephens Park ($22K), ADA compliance for play structure at Stephens Park, Re-landscape main entry (east) at Donovan Park ($20K) and resurface Donovan basketball court ($10K) Alpine Garden Support85,620 - 85,620 - 85,620 - 85,620 Council approved one-time capital of $20K for water feature in 2012 and $65K of operating Eagle River Watershed Programs50,000 - 50,000 12,000 62,000 - 62,000 2012 $50K Council contributions; $12K off cycle contribution for regional water quality monitoring program "Water Quality Data and Assessment Program" Public Art - Operating92,657 - 92,657 - 92,657 - 92,657 AIPP salary and operating expenses Environmental Sustainability250,000 - 250,000 - 250,000 21,660 271,660 Environmental Sustainability programs; Increase in recycling hauling to be reimbursed by Eagle County (see above) Total Maintenance2,483,562 25,000 2,508,562 12,000 2,520,562 21,660 2,542,222 Enhancement of Town AssetsFlood Incident Repairs1,050,000 - 1,050,000 - 1,050,000 - 1,050,000 2012: repairs to culverts, drainage, and preventative improvements Stephen's Park Stream Repairs- - - - - - - Streambank stabilization sign (req uirement of the grant) Trailhead Development / Improvement50,000 - 50,000 - 50,000 - 50,000 Improve trailheads; Continued need through 2012 (one trail per year) ADA Compliance w/ VRD10,000 - 10,000 - 10,000 - 10,000 Shared costs with VRD - ADA access at recreational facilities;new ADA regulations went into effect 2011; Need to replace drinking fountains at all par ks ($2K each) Frontage Road Bike Lanes/Trails1,150,000 - 1,150,000 - 1,150,000 - 1,150,000 4 miles of bike lanes (6 foot shoulders) to be added prior to CDOT overlay project; first priority is Blue Cow Chute to East Vail; path from Vail Mtn Sc hool to E. Vail exit Streambank/tract mitigation200,000 - 200,000 - 200,000 - 200,000 2012 planning; 2013 implementation **estimate only** Red Sandstone Park - Per Safety plan- 197,630 197,630 - 197,630 - 197,630 Reconstruction of playground per safety plan; 20 years old Public Art - General program / art80,000 255,878 335,878 - 335,878 - 335,878 To purchase sculptures, artwork, art programs and events; remainder is re-appropriated each year to accumulate enough funds; Supplement budget for annual donations, manhole cover & jewelery sales, and poster sales contributed during 2011 Public Art - Winterfest - 33,494 33,494 - 33,494 - 33,494 Recognize donations made for Winterfest event ($5,100 in 2011); Re-appropriate donation balance; (approximate cost of event is $25K per year) Total Enhancements2,540,000 487,002 3,027,002 - 3,027,002 - 3,027,002 TOWN OF VAIL 2012 BUDGET SUMMARY OF REVENUE, EXPENDITURES AND CHANGES IN FUN D BALANCE REAL ESTATE TRANSFER TAX FUND- 6 - 12/18/2012 2012 2012 Original1st 20122nd20123rdProposedBudgetSupplementalAmendedSupplementalAmendedSupplementalAmended Comments TOWN OF VAIL 2012 BUDGET SUMMARY OF REVENUE, EXPENDITURES AND CHANGES IN FUN D BALANCE REAL ESTATE TRANSFER TAX FUND VRD-Managed Facility ProjectsRecreation Enhancement Account126,888 (126,888) - - - - - Transfer balance to Golf Course Clubhouse redevelopment as intended by this reserve account - funded by annual lease revenue Golf Course Clubhouse - - - - - - - Transferred balance to new clubhouse construction funding (see New Assets below) Golf Course - Other Improvements18,468 133,167 151,635 - 151,635 - 151,635 Re-appropriate for replacement of maintenance storage building; Improvements to golf course: 7th tee box retaining wall, 11th and 17th hole bridges; improvements to maintenance building including stucco, wood trim and soffits; Mtce Storage building Dobson Ice Arena 73,495 343,279 416,774 - 416,774 - 416,774 Re-appropriate for upgrade of louver system, replac ement of doors, refurbishment of wood exterior and landscape improvements; '2012: renovate changing rooms and restrooms Ford Park / Tennis Center Improvements428,910 - 428,910 - 428,910 - 428,910 Re-appropriate 2011 unspent and transfer to Ford Park Fields project for upper bench improvements; 2012 outbuilding improvements at ball fields Gymnastics Center 1,978 - 1,978 - 1,978 - 1,978 Waiting on energy audit prior to inst alling cooling system Nature Center 10,646 - 10,646 - 10,646 - 10,646 2012 wood open rail fencing Total VRD-Managed Facility Projects660,385 349,558 1,009,943 - 1,009,943 - 1,009,943 New AssetsGolf Course Clubhouse (CCF)- 6,712,761 6,712,761 - 6,712,761 - 6,712,761 Re-appropriation of prior estimate for design and architecture; plus transfer of $1.26M from prior clubhouse capital maintenance budget; $1.15M reimbursement from VRD, allocation of Recreation Enhancement Funds $504K and Conference Center funds of $3.8M (Total project cost estimated at $6.8M) Ford Park Fields (CCF)- 6,297,340 6,297,340 - 6,297,340 - 6,297,340 Added transfer of $342.6K from Ford Park/Tennis, tr ansfer of $200K from Ford Park Improvements budget and a transfer of $2,256,185 from Ford Park Management Plan budget. Consolidating dollars already in previous budgets and adding use of $3.5M in Conference Center Funds for total project estimated cost of $6.3M Public Restrooms - 370,000 370,000 - 370,000 - 370,000 Restrooms at lower bench of Ford Park Total New Assets: - 13,380,101 13,380,101 - 13,380,101 - 13,380,101 Total Expenditures5,683,947 14,241,661 19,925,608 12,000 19,937,608 21,660 19,959,268 Other Financing Sources (Uses)Transfer to Capital Project Fund- - - - - - - Transfer to CPF for implementation of energy audit enhancements Transfer from Conference Center Fund- 6,785,000 6,785,000 - 6,785,000 - 6,785,000 Transfer from Conf Center Funds for Golf Clubhouse ($3.8M) and Ford Park Field projects ($3.5M), net of $515K transferred in 2011 for planning/desig n Revenue Over (Under) Expenditures(1,609,059) (6,306,661) (7,915,720) (12,000) (7,927,720) - (7,927,720) Beginning Fund Balance9,451,8317,833,774 17,285,60517,285,60517,285,605 Ending Fund Balance7,842,772$ 9,369,885$ 9,357,885$ 9,357,885$ - 7 - 12/18/2012 Ordinance No. 20, Series of 2012 ORDINANCE NO. 20 SERIES OF 2012 AN ORDINANCE MAKING BUDGET ADJUSTMENTS TO THE TOWN OF VAIL GENERAL FUND, CAPITAL PROJECTS FUND, AND REAL ESTATE TRANSFER TAX FUND OF THE 2012 BUDGET FOR THE TOWN OF VAIL, COLORADO; AND AUTHORIZING THE SAID ADJUSTMENTS AS SET FORTH HEREIN; AND SETTING FORTH DETAILS IN REGARD THERETO. WHEREAS, contingencies have arisen during the fiscal year 2012 which could not have been reasonably foreseen or anticipated by the Town Council at the time it enacted Ordinance No. 21, Series of 2011, adopting the 2012 Budget and Financial Plan for the Town of Vail, Colorado; and, WHEREAS, the Town Manager has certified to the Town Council that sufficient funds are available to discharge the appropriations referred to herein, not otherwise reflected in the Budget, in accordance with Section 9.10(a) of the Charter of the Town of Vail; and, WHEREAS, in order to accomplish the foregoing, the Town Council finds that it should make certain budget adjustments as set forth herein. NOW, THEREFORE, BE IT ORDAINED, BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO that: 1. Pursuant to Section 9.10(a) of the Charter of the Town of Vail, Colorado, the Town Council hereby makes the following budget adjustments for the 2012 Budget and Financial Plan for the Town of Vail, Colorado, and authorizes the following budget adjustments: General Fund $ 206,075 Capital Projects Fund 778,000 Real Estate Transfer Tax Fund 21,660 Total $ 1,005,735 2. If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this ordinance; and the Town Council hereby declares it would have passed this ordinance, and each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. 3. The Town Council hereby finds, determines, and declares that this ordinance is necessary and proper for the health, safety, and welfare of the Town of Vail and the inhabitants 12/18/2012 Ordinance No. 20, Series of 2012 thereof. 4. The repeal or the repeal and reenactment of any provision of the Municipal Code of the Town of Vail as provided in this ordinance shall not affect any right which has accrued, any duty imposed, any violation that occurred prior to the effective date hereof, any prosecution commenced, nor any other action or proceedings as commenced under or by virtue of the provision repealed or repealed and reenacted. The repeal of any provision hereby shall not revive any provision or any ordinance previously repealed or superseded unless expressly stated herein. 5. All bylaws, orders, resolutions, and ordinances, or parts thereof, inconsistent herewith are repealed to the extent only of such inconsistency. This repealer shall not be construed to revise any bylaw, order, resolution, or ordinance, or part thereof, theretofore repealed. INTRODUCED, READ, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON FIRST READING this 4th day of December, 2012, and a public hearing shall be held on this Ordinance on the 18th day of December, 2012, at the regular meeting of the Town Council of the Town of Vail, Colorado, in the Municipal Building of the town. _______________________________ Andrew P. Daly, Mayor ATTEST: ___________________________ Lorelei Donaldson, Town Clerk READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED IN FULL this 18th day of December 2012. _____________________________ Andrew P. Daly, Mayor ATTEST: ________________________________ Lorelei Donaldson, Town Clerk 12/18/2012 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: December 18, 2012 ITEM/TOPIC: Appointment of CSE and VLMDAC members PRESENTER(S): Pam Brandmeyer ACTION REQUESTED OF COUNCIL: Council interviewed all interested applicants at the work session earlier in the day. Staff requests that the Council vote and appoint three members to the CSE and three members to the VLMDAC. BACKGROUND: See information from work session of December 18, 2012. STAFF RECOMMENDATION: Staff requests Council appoint three members to the CSE and three members to the VLMDAC for two year terms each, from January 1, 2013 to December 31, 2014. 12/18/2012 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: December 18, 2012 ITEM/TOPIC: The Community Development Department will present the four (4) Ever Vail development applications before the Vail Town Council and request action be taken on Resolution No. 35, Series of 2012 and the second readings of Ordinance Nos. 7, 8 and 9, Series of 2011. The four (4) applications are intended to facilitate the future redevelopment of Ever Vail. Major Subdivision (Resolution No. 35, Series of 2012): A request for a review of a preliminary plan for a major subdivision, pursuant to Chapter 13-3, Major Subdivision, Vail Town Code, to allow for the creation of two lots for the redevelopment of the properties known as Ever Vail (West Lionshead), located at 862, 923, 934, 953, 1000 and 1031 South Frontage Road West, and the South Frontage Road West right-of-way/unplatted (a complete legal description is available for inspection at the Town of Vail Community Development Department), and setting forth details in regard thereto. (PEC080062)Rezoning (Ordinance No. 7, Series of 2011): A request for a recommendation to the Vail Town Council for a zone district boundary amendment, pursuant to Section 12-3-7, Amendment, Vail Town Code, to allow for a establish Lionshead Mixed Use 2 District zoning on Parcels 1 and 2 of the Ever Vail Subdivision located generally at 862, 923, 934, 953, 1000, and 1031 South Frontage Road, and the South Frontage Road right-of-way/unplatted (a complete legal description is available for inspection at the Town of Vail Community Development Department), and setting forth details in regard thereto. (PEC080061)Special Development District Amendment (Ordinance No. 8, Series of 2011): A request for a recommendation to the Vail Town Council for a major amendment to Special Development District No. 4, Cascade Village, pursuant to Section 12- 9A-10, Amendment Procedures, Vail Town Code, to allow for the removal of Development Area D (Glen Lyon Office Building) from Special Development District No. 4, Cascade Village, and for a zone district boundary amendment, pursuant to Section 12-3-7, Amendment, Vail Town Code, to include the subject property in the Lionshead Mixed Use 2 District, located at 1000 South Frontage Road West/Lot 54, Glen Lyon Subdivision, and setting forth details in regard thereto. (PEC090036)Title 12, Zoning Regulations, Vail Town Code, Amendment ( Ordinance No. 9, Series of 2011): A request for a final recommendation to the Vail Town Council for prescribed regulation amendments, pursuant to Section 12-3-7, Amendment, Vail Town Code, to amend Section 12-10-19, Core Areas Identified, Vail Town Code, to amend the core area parking maps to include "Ever Vail" (West Lionshead) within the "Commercial Core" designation, and setting forth details in regard thereto. (PEC080065) PRESENTER(S): George Ruther Warren Campbell ACTION REQUESTED OF COUNCIL: The Planning and Environmental Commission recommends the Vail Town Council approve Resolution No. 35, Series of 2012 and approve Ordinance Nos. 7, 8, and 9, Series of 2011 upon second reading. BACKGROUND: On December 4, 2012 the Vail Town Council continued Resolution No. 35, Series of 2012 to the December 18th public hearing by unanimous vote. Ordinance Nos. 7, 8, and 9, Series of 2011 were approved upon first reading by a vote of 6-1-0 (Donovan opposed). STAFF RECOMMENDATION: The Planning and Environmental Commission recommends the Vail Town Council approves Resolution No. 35, Series of 2012 and the second reading of Ordinance Nos. 7, 8, and 9, Series of 2011. 12/18/2012 ATTACHMENTS: TC memorandum 121812 Resolution No. 35, Series of 2012 Ordinance No. 7 Series of 2011 Second Reading Ordinance No, 8 Series of 2011 Second Reading Ordinance No. 9 series of 2011 Second Reading 12/18/2012 TO: Vail Town Council FROM: Community Development Department DATE: December 18, 2012 SUBJECT: Presentation on the four (4) Ever Vail development applications before the Vail Town Council and request for final review of Resolution No. 35, Series of 2012 and Ordinance Nos. 7, 8 and 9, Series of 2011. I. SUMMARY The Community Development Department will present the four (4) Ever Vail development applications before the Vail Town Council and request that action be taken on the following applications: • Resolution No. 35, series of 2012 - Major subdivision • Ordinance No. 7, Series of 2011 - Zone district boundary amendment (zoning) • Ordinance No. 8, Series of 2011 - SDD No. 4, Cascade Village, major amendment • Ordinance No. 9, Series of 2011 - Prescribed regulations amendment to establish commercial core parking requirements Copies of Resolution No. 35, Series of 2012 and Ordinance Nos. 7, 8, and 9, Series of 2011 are attached for review (Attachments A, B, C, and D). II. BACKGROUND On December 4, 2012 the Vail Town Council continued Resolution No. 35, Series of 2012 to the December 18th public hearing by unanimous vote. Ordinance Nos. 7, 8, 9, Series of 2011 were approved upon first reading by a vote of 6-1-0 (Donovan opposed). III. PLANNING AND ENVIRONMENTAL COMMISSION RECOMMENDATION The Planning and Environmental Commission recommends the Vail Town Council approves Resolution No. 35, Series of 2012 and the second reading of Ordinance Nos. 7, 8, and 9, Series of 2011. 12/18/2012 Town of Vail Page 2 IV. COMMUNITY DEVELOMENT DEPARTMENT RECOMMENDATION Since the Planning and Environmental Commission forwarded their recommendations to the Vail Town Council circumstances have changed. The Vail Town Council, applicant, and staff have discussed the timing, effective date, subdivider agreement, and other elements of the Ever Vail development applications. The Community Development Department believes that the conditions included with each recommendation from the Planning and Environmental Commission have been achieved in Resolution No. 35, Series of 2012 and Ordinance Nos. 7, 8, and 9, Series of 2011. V. ATTACHMENTS A. Resolution No. 35, series of 2012 - Major subdivision B. Ordinance No. 7, Series of 2011 - Zone district boundary amendment (zoning) C. Ordinance No. 8, Series of 2011 - SDD No. 4, Cascade Village, major amendment D. Ordinance No. 9, Series of 2011 - Prescribed regulations amendment to establish commercial core parking requirements 12/18/2012 1 12/13/2012 S:\COMMUNITY DEVELOPMENT\COUNCIL\RESOLUTIONS\2012\RESOLUTION NO 35 EVER VAIL PRELIMINARY PLAN 121812.DOCX RESOLUTION NO. 35 SERIES OF 2012 A RESOLUTION APPROVING A PRELIMINARY PLAN FOR A MAJOR SUBDIVISION CREATING PARCELS 1 AND 2 OF THE EVER VAIL SUBDIVISION, PURSUANT TO SECTIONS 13-3-4 AND 13-3-5 OF THE VAIL TOWN CODE, SUBJECT TO CERTAIN CONDITIONS WHEREAS, Section 13-3-4 of the, Vail Town Code, sets forth the procedures for approval of a preliminary plan for a major subdivision; WHEREAS, the Town has received an application for approval of a preliminary plan for a major subdivision (the "Preliminary Plan") for the property that will be known as Parcels 1 and 2 of the Ever Vail Subdivision, as more particularly described in Exhibit A, attached hereto and incorporated herein by this reference (the "Property"); WHEREAS, on January 10, 2011, the Town of Vail Planning and Environmental Commission (the "PEC") held a properly noticed public hearing on the Preliminary Plan; WHEREAS, the applicant and the Town have agreed that final approval of the Preliminary Plan should be made by the Town Council, rather than the PEC, without the necessity of a formal appeal by the Town Council pursuant to Section 13-3-5(C) of the Vail Town Code; WHEREAS, the PEC has forwarded to the Vail Town Council (the "Town Council") a recommendation of approval of the Preliminary Plan, with certain conditions; WHEREAS, on or about September 14, 2011 and December 4, 2012, the Eagle River Water & Sanitation District submitted written and verbal comments on the proposed Preliminary Plan, and requested that certain items be addressed prior to the redevelopment of the Property; WHEREAS, the Town Council acknowledges that the issues raised by the Eagle River Water & Sanitation District are of concern to the Town and that the appropriate time to address them is during the development review process for the Ever Vail development; WHEREAS, when the Frontage Road is relocated, the Final Plat for the Ever Vail Subdivision can be submitted for approval; WHEREAS, the Town Council is willing to provide the applicant with time to relocate the Frontage Road; WHEREAS, the applicant and the Town have discussed the timing of the Frontage Road relocation, and the Town Council finds and determines that eight years is sufficient time to relocate the Frontage Road; and 12/18/2012 2 12/13/2012 S:\COMMUNITY DEVELOPMENT\COUNCIL\RESOLUTIONS\2012\RESOLUTION NO 35 EVER VAIL PRELIMINARY PLAN 121812.DOCX WHEREAS, the applicant and the Town have agreed that the final approval of the Final Plat, when it is submitted for approval, should be made by the Town Council, rather than the PEC, pursuant to Section 13-3-10 of the Vail Town Code, without the necessity of a formal appeal by the Town Council. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. Factors Considered. Pursuant to Section 13-3-4(A) of the Vail Town Code, the Town Council has considered the following factors prior to making its determination on the application for approval of the Preliminary Plan for Parcels 1 and 2 of the Ever Vail Subdivision: a. The extent to which the proposed subdivision is consistent with all the applicable elements of the adopted goals, objectives and policies outlined in the Town's comprehensive plan and is compatible with the development objectives of the Town; b. The extent to which the proposed subdivision complies with all of the standards of Titles 12 and 13 of the Vail Town Code; c. The extent to which the proposed subdivision presents a harmonious, convenient, workable relationship among land uses consistent with municipal development objectives; d. The extent of the effects on the future development of the surrounding area; e. The extent to which the proposed subdivision is located and designed to avoid creating spatial patterns that cause inefficiencies in the delivery of public services, or require duplication or premature extension of public facilities, or result in a "leapfrog" pattern of development; and f. The extent to which the utility lines are sized to serve the planned ultimate population of the service area to avoid future land disruption to upgrade undersized lines; g. The extent to which the proposed subdivision provides for the growth of an orderly viable community and serves the best interests of the community as a whole; and h. The extent to which the proposed subdivision results in adverse or beneficial impacts on the natural environment, including, but not limited to, water quality, air quality, noise, vegetation, riparian corridors, hillsides and other desirable natural features. 12/18/2012 3 12/13/2012 S:\COMMUNITY DEVELOPMENT\COUNCIL\RESOLUTIONS\2012\RESOLUTION NO 35 EVER VAIL PRELIMINARY PLAN 121812.DOCX Section 2. Findings. Pursuant to Section 13-3-4(B) of the Vail Town Code and based on the evidence and testimony presented in consideration of this resolution, the Town Council finds and determines as follows: a. The subdivision is in compliance with the criteria listed in Section 1 hereof; b. That the subdivision is consistent with the adopted goals, objectives and policies outlined in the Town's comprehensive plan and compatible with the development objectives of the Town; c. The subdivision is compatible with and suitable to adjacent uses and appropriate for the surrounding areas; and d. The subdivision promotes the health, safety, morals, and general welfare of the Town and promotes the coordinated and harmonious development of the Town in a manner that conserves and enhances its natural environment and its established character as a resort and residential community of the highest quality. Section 3. Approval. Based on the foregoing findings, the Preliminary Plan for the major subdivision of the Property, creating Parcels 1 and 2 of the Ever Vail Subdivision, is hereby approved. Section 4. Final Plat. a. The Final Plat for the Ever Vail Subdivision shall not be approved prior to the relocation of the Frontage Road and compliance with all applicable requirements of the Vail Town Code, including without limitation Section 13-3-14. b. Because the Town Council finds and determines that a reasonable time for the relocation of the Frontage Road is eight years, the Preliminary Plan approval set forth in Section 3 hereof shall not expire until December 31, 2020, in lieu of the one-year expiration set forth in Section 13-3-6(A) of the Vail Town Code . Prior to December 31, 2020, the applicant shall obtain approval of the Final Plat for the Ever Vail Subdivision pursuant to Title 13 of the Vail Town Code, or the Preliminary Plan approval set forth in this resolution shall expire without any further action of the PEC or the Town Council. c. If the Final Plat is consistent with the Preliminary Plan, the final approval of the Final Plat shall be made by the Town Council, rather than the PEC, without the necessity of a formal appeal by the Town Council pursuant to Section 13-3-10 of the Vail Town Code. The Town Council’s consideration of the Final Plat shall occur at a public hearing, and no hearing before the PEC shall be required. The criteria for approval of the Final Plat shall be as set forth in Section 13-3-7 of the Vail Town Code. d. If the Final Plat is inconsistent with the Preliminary Plan, the Final Plat shall be submitted to the PEC first, pursuant to Section 13-3-9 of the Vail Town Code, and the PEC shall make a recommendation to the Town Council. The Town Council shall consider the Final Plat without the necessity of a formal appeal pursuant to Section 12/18/2012 4 12/13/2012 S:\COMMUNITY DEVELOPMENT\COUNCIL\RESOLUTIONS\2012\RESOLUTION NO 35 EVER VAIL PRELIMINARY PLAN 121812.DOCX 13-3-10 of the Vail Town Code. The Town Council’s consideration of the Final Plat shall occur at a public hearing, and the criteria for approval of the Final Plat shall be as set forth in Section 13-3-7 of the Vail Town Code. 12/18/2012 5 12/13/2012 S:\COMMUNITY DEVELOPMENT\COUNCIL\RESOLUTIONS\2012\RESOLUTION NO 35 EVER VAIL PRELIMINARY PLAN 121812.DOCX INTRODUCED, PASSED AND ADOPTED this 18th day of December, 2012. _______________________________ Andy P. Daly, Mayor ATTEST: _____________________________ Lorelei Donaldson, Town Clerk 12/18/2012 12/18/2012 1 11/28/2012 \\VWS-STORAGE\DESKTOPS$\WCAMPBELL\DESKTOP\EVER VAIL REZONING-3.DOCX ORDINANCE NO. 7 SERIES OF 2011 AN ORDINANCE REZONING PARCELS 1 AND 2 OF THE EVER VAIL SUBDIVISION FROM ARTERIAL BUSINESS AND SPECIAL DEVELOPMENT DISTRICT NO. 4 TO LIONSHEAD MIXED USE 2 PURSUANT TO SECTION 12-3-7 OF THE VAIL TOWN CODE, SUBJECT TO CERTAIN CONDITIONS, AND SETTING FORTH DETAILS IN REGARD THERETO. WHEREAS, Section 12-3-7 of the, Vail Town Code, sets forth the procedures for rezoning property, also known as amending zone district boundaries; WHEREAS, the Town has received an application to rezone the property that will be known as Parcels 1 and 2 of the Ever Vail Subdivision, as more particularly described in Exhibit A, attached hereto and incorporated herein by this reference (the “Property”); WHEREAS, the Property is currently zoned as follows: 862 (Vail Resorts Maintenance Shop) zoned Lionshead Mixed Use 2 ("LMU-2"); 923 (Holy Cross lot) zoned LMU-2; 934 (Amoco/BP site) zoned LMU-2; 953 (Vail Professional Building) zoned Arterial Business District; 1000 (Glen Lyon Office Building) zoned Special Development District No. 4; and 1031 (Cascade Crossing) zoned Arterial Business District; WHEREAS, on January 10, 2011, the Town of Vail Planning and Environmental Commission (the "PEC") held a properly noticed public hearing on a proposed rezoning of Parcels 1 and 2 of the Ever Vail Subdivision, when such parcels are created, to LMU- 2; WHEREAS, the PEC has forwarded to the Vail Town Council (the "Town Council") a recommendation of approval of the proposed rezoning, with certain conditions; WHEREAS, the rezoning of Parcels 1 and 2 of the Ever Vail Subdivision cannot become effective until the Frontage Road is relocated and the Final Plat for the Ever Vail Subdivision is approved by the Town Council, signed by all required parties and properly recorded with the Eagle County Clerk and Recorder; WHEREAS, the Town Council is willing to provide the applicant with time to relocate the Frontage Road; WHEREAS, the applicant and the Town have discussed the timing of the Frontage Road relocation, and the Town Council finds and determines that eight years is sufficient time to relocate the Frontage Road; and 12/18/2012 2 11/28/2012 \\VWS-STORAGE\DESKTOPS$\WCAMPBELL\DESKTOP\EVER VAIL REZONING-3.DOCX WHEREAS, the Town Council finds and determines that, should the Frontage Road not be relocated by December 31, 2020, the rezoning of Parcels 1 and 2 of the Ever Vail Subdivision shall not take effect. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. Factors Considered. Pursuant to Section 12-3-7 of the Vail Town Code, the Town Council has considered the following factors prior to making its determination on the application to rezone Parcels 1 and 2 of the Ever Vail Subdivision: a. The extent to which the rezoning is consistent with all the applicable elements of the adopted goals, objectives and policies outlined in the Town of Vail Comprehensive Plan and is compatible with the development objectives of the Town; b. The extent to which the rezoning amendment is suitable with the existing and potential land uses on the site and existing and potential surrounding land uses as set out in the Town's adopted planning documents; c. The extent to which the rezoning presents a harmonious, convenient, workable relationship among land uses consistent with municipal development objectives; d. The extent to which the rezoning provides for the growth of an orderly viable community and does not constitute spot zoning as the amendment serves the best interests of the community as a whole; and e. The extent to which the rezoning results in adverse or beneficial impacts on the natural environment, including, but not limited to, water quality, air quality, noise, vegetation, riparian corridors, hillsides and other desirable natural features; f. The extent to which the rezoning is consistent with the purpose statement of the proposed zone district; and g. The extent to which the rezoning demonstrates how conditions have changed since the zoning designation of the subject property was adopted and is no longer appropriate. Section 2. Findings. Pursuant to Section 12-3-7 of the Vail Town Code and based on the evidence and testimony presented in consideration of this ordinance, the Town Council finds and determines as follows: a. LMU-2 zoning of Parcels 1 and 2 of the Ever Vail Subdivision, when such parcels are created, will be necessary to achieve compliance with the Lionshead Redevelopment Master Plan and to achieve the development objectives of the Town; b. LMU-2 zoning of Parcels 1 and 2 of the Ever Vail Subdivision, when such parcels are created, will be consistent with the adopted goals, objectives and policies 12/18/2012 3 11/28/2012 \\VWS-STORAGE\DESKTOPS$\WCAMPBELL\DESKTOP\EVER VAIL REZONING-3.DOCX outlined in the Town of Vail Comprehensive Plan and compatible with the development objectives of the Town; c. LMU-2 zoning of Parcels 1 and 2 of the Ever Vail Subdivision, when such parcels are created, will be compatible with and suitable to adjacent uses and appropriate for the surrounding areas; and d. LMU-2 zoning of Parcels 1 and 2 of the Ever Vail Subdivision, when such parcels are created, will promote the health, safety, morals, and general welfare of the town and promote the coordinated and harmonious development of the Town in a manner that conserves and enhances its natural environment and its established character as a resort and residential community of the highest quality. Section 3. Rezoning. Based on the foregoing findings, and subject to Section 4 hereof, Parcels 1 and 2 of the Ever Vail Subdivision are hereby rezoned to Lionshead Mixed Use 2. Section 4. Condition Precedent and Expiration. The rezoning set forth in Section 3 hereof shall take effect on the date that the Final Plat for the Ever Vail Subdivision, creating Parcels 1 and 2, is properly recorded with the Eagle County Clerk and Recorder; provided that, if the Final Plat for the Ever Vail Subdivision has not been properly recorded by December 31, 2020, the rezoning set forth in Section 3 hereof shall not take effect. Section 5. Severability. If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not effect the validity of the remaining portions of this ordinance; and the Town Council hereby declares it would have passed this ordinance, and each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. Section 6. Effect. The amendment of any provision of the Vail Town Code as provided in this ordinance shall not affect any right which has accrued, any duty imposed, any violation that occurred prior to the effective date hereof, any prosecution commenced, nor any other action or proceeding as commenced under or by virtue of the provision amended. The amendment of any provision hereby shall not revive any provision or any ordinance previously repealed or superseded unless expressly stated herein. The time period established by Section 5.3(d) of the Vail Town Charter shall commence on the date of adoption of this ordinance by the Town Council. Section 7. Repealer. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are repealed to the extent only of such inconsistency. This repealer shall not be construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore repealed. INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON FIRST READING this 4th day of December, 2012 and a public hearing for second reading of this Ordinance set for the 18th day of December, 12/18/2012 4 11/28/2012 \\VWS-STORAGE\DESKTOPS$\WCAMPBELL\DESKTOP\EVER VAIL REZONING-3.DOCX 2012, at 6:00 P.M. in the Council Chambers of the Vail Municipal Building, Vail, Colorado. _______________________________ Andy P. Daly, Mayor ATTEST: _____________________________ Lorelei Donaldson, Town Clerk READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED this 18th day of December, 2012. _____________________________ Andy P. Daly, Mayor ATTEST: ____________________________ Lorelei Donaldson, Town Clerk 12/18/2012 I 70 S F R O N TA G E R D W N F R O N T A G E R D W VAIL VIE W D R L IO N S RI D G E L O O P W F O R E S T R D RED SANDSTONE RD SANDSTONE DR I 70 I ! ! !! !!!!! Ever Vail 0125250Feet Ever VailE ver Vail Proposed Changes to ZoningP roposed Changes to Zoning This map was created by the Town of Vail GIS Team. Use of this map should be for general purposes only. The Town of Vail does not warrant the accuracy of the information contained herein.(where shown, parcel line work is approximate) Last Modified: November 16, 2012 Existing Zoning Lionshead Mixed Use 2 (LMU-2) Arterial Business (ABD) Not Designated Special Development District No. 4 I 70 S F R O N TA G E R D W N F R O N T A G E R D W VAIL VIE W DR LI O N S RI D G E L O O P W F O R E S T R D RED SANDSTONE RD SANDSTONE DR I 7 0 Proposed Zoning Lionshead Mixed Use 2 (LMU-2) 12/18/2012 1 11/28/2012 \\VWS-STORAGE\DESKTOPS$\WCAMPBELL\DESKTOP\EVER VAIL SDD-3.DOC ORDINANCE NO. 8 SERIES OF 2011 AN ORDINANCE AMENDING ORDINANCE NO. 5, SERIES OF 2008, CASCADE VILLAGE, TO REMOVE DEVELOPMENT AREA D FROM SPECIAL DEVELOPMENT DISTRICT NO. 4, CASCADE VILLAGE, PURSUANT TO SECTION 12-9A-10 OF THE VAIL TOWN CODE, SUBJECT TO CERTAIN CONDITIONS, AND SETTING FORTH DETAILS IN REGARD THERETO. WHEREAS, Section 12-9A-10 of the Zoning Regulations permits major amendments to previously approved development plans for Special Development Districts; WHEREAS, Ordinance No. 5, Series of 1976 adopted Special Development District No. 4, Cascade Village ("SDD No. 4"); WHEREAS, Resolution No. 19, Series of 2008 changed the land use designation for Development Area D to Lionshead Redevelopment Master Plan in the Vail Land Use Plan; WHEREAS, Resolution No. 26, Series of 2008 adopted site specific recommendations for Development Area D within the Lionshead Redevelopment Master Plan; WHEREAS, the proposed Ever Vail Subdivision will incorporate Development Area D; WHEREAS, on January 24, 2011, after a properly noticed public hearing, the Town of Vail Planning and Environmental Commission recommended approval of the amendments to SDD No. 4; WHEREAS, the removal of Development Area D from SDD No. 4 cannot take effect until the Frontage Road is relocated and the Final Plat for the Ever Vail Subdivision is approved by the Town Council, signed by all required parties and properly recorded with the Eagle County Clerk and Recorder; WHEREAS, the Town Council is willing to provide the applicant with time to relocate the Frontage Road; WHEREAS, the applicant and the Town have discussed the timing of the Frontage Road relocation, and the Town Council finds and determines that eight years is sufficient time to relocate the Frontage Road; and 12/18/2012 2 11/28/2012 \\VWS-STORAGE\DESKTOPS$\WCAMPBELL\DESKTOP\EVER VAIL SDD-3.DOC WHEREAS, the Town Council finds and determines that, should the Frontage Road not be relocated by December 31, 2020, the removal of Development Area D from SDD No. 4 shall not take effect. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. Findings. Pursuant to Section 12-9A-10 of the Vail Town Code and based on the evidence and testimony presented in consideration of this ordinance, the Vail Town Council (the "Town Council") hereby finds and determines as follows: a. The approval procedures described in Section 12-9A of the Vail Town Code have been fulfilled; b. The proposed amendment to SDD No. 4 meets the Town's development objectives as identified in the Vail Comprehensive Plan; c. SDD No. 4 should be amended to achieve compliance with the Lionshead Redevelopment Master Plan; d. The proposed amendment to SDD No. 4 complies with the nine design criteria outlined in Section 12-9A-8 of the Vail Town Code; e. The proposed amendment to SDD No. 4 is compatible with and suitable to adjacent uses and appropriate for the surrounding areas; f. The proposed amendment to SDD No. 4 promotes the health, safety, morals, and general welfare of the town and promote the coordinated and harmonious development of the Town in a manner that conserves and enhances its natural environment and its established character as a resort and residential community of the highest quality; and g. It is in the best interest of the public health, safety, and welfare to amend SDD No. 4 to remove Development Area D, so that Development Area D can become a part of the Ever Vail Subdivision when that subdivision is created. Section 2. Amendment. Subject to Section 3 hereof, Ordinance No. 5, Series of 2008, is hereby amended to remove Development Area D from SDD No. 4. All provisions of SDD No. 4 not expressly amended in this Ordinance shall remain in full force and effect. Specifically, SDD No. 4 shall be amended to read as follows (deletions are shown in strike through/additions are shown in bold): Established A. Special Development District No. 4 is established for the development on a parcel of land comprising 97.955 96.155 acres and Special Development District No. 4 and the 97.955 96.155 acres may be referred to as “SDD No. 4.” 12/18/2012 3 11/28/2012 \\VWS-STORAGE\DESKTOPS$\WCAMPBELL\DESKTOP\EVER VAIL SDD-3.DOC B. The district shall consist of four separate development areas, as identified in this ordinance consisting of the following approximate sizes: Area Known As Development Area Acreage Cascade Village A 17.955 Coldstream Condominiums B 4.000 Glen Lyon Primary/Secondary and Single Family Lots C 9.100 Glen Lyon Commercial Site D 1.800 Tract K E 8.322 Dedicated Open Space 32.078 Roads 4.700 TOTAL 97.955 96.155 Development Plan--Required--Approval Procedure Each development area with the exception of Development Areas A and D shall be subject to a single development plan. Development Area A shall be allowed to have two development plans for the Cascade Club site as approved by the Town Council. The Waterford and Cornerstone sites shall be allowed one development plan each. Development Area D shall be allowed to develop per the approved phasing plans as approved by the Town Council. A development plan for Development Area E shall be established through the review and approval of a design review application and/or conditional use permit application. The developer shall have the right to proceed with the development plans or scenarios as defined in the development statistics section of this ordinance. Amendments to SDD No. 4 shall comply with Section 12-9A, Vail Town Code. Permitted Uses D. Area D. Glen Lyon Commercial Site 1. Business and professional offices; 2. Employee dwelling as defined in Section 12-13 of the Municipal Code. E.D. Area E, Tract K 1. Bicycle and pedestrian paths. 2. Interpretive nature walks. 3. Nature preserves. 4. Passive outdoor recreation areas and open spaces. Conditional Uses 12/18/2012 4 11/28/2012 \\VWS-STORAGE\DESKTOPS$\WCAMPBELL\DESKTOP\EVER VAIL SDD-3.DOC D. Area D, Glen Lyon Commercial Site 1. Micro-brewery as defined in Town of Vail Municipal code, Chapter 12-2. E.D. Area E, Tract K 1. Public parks. 2. Public utility and public service uses. 3. Access roads. 4. Ski lifts and tows. 5. Ski trails. 6. Snowmaking facilities. 7. Other uses customarily incidental and accessory to permitted and conditional uses and necessary for the operation thereof, with the exception of buildings. Accessory Uses D. Area D, Glen Lyon Commercial Site 1. Home occupations, subject to issuance of a home occupation permit in accordance with the provisions of Title 12, Zoning Regulations, Vail Town Code. 2. Attached garages or carports, private greenhouses, swimming pools, tennis courts, patios, or other recreational facilities customarily incidental to permitted residential uses. 3. Other uses customarily incidental and accessory to permitted or conditional uses, and necessary for the operation thereof. 4. Minor arcade. Density--Dwelling Units, D. Area D, Glen Lyon Commercial Site. Three dwelling units, two of which shall be employee dwelling units as defined within Chapter 12-13, Vail Town Code. Density--Floor Area D. Area D, Glen Lyon Commercial Site. The development plan for this area has expired. See Ordinance No. 8, Series of 1998 for previous requirements. Commercial Square Footage B. Area D, Glen Lyon Commercial Site. The development plan for this area has expired. See Ordinance No. 8, Series of 1998 for previous requirements. 12/18/2012 5 11/28/2012 \\VWS-STORAGE\DESKTOPS$\WCAMPBELL\DESKTOP\EVER VAIL SDD-3.DOC Development Plans Site specific development plans are approved for Area A. and Area D. The development plans for Area A are comprised of those plans submitted by Vail Ventures, Ltd. and other developers. The development plans for Area D are comprised of those plans submitted by the Glen Lyon Office Building, a Colorado Partnership. The following documents comprise the development plan for the SDD as a whole, Waterford, Cornerstone, Cascade Club Addition Scenario 1 and 2, and Millrace IV., and Area D- Glen Lyon Commercial Site and is not all inclusive: Area D, Glen Lyon Commercial Site. The development plan for this area has expired. See Ordinance No. 8, Series of 1998 for previous requirements. Development Standards The development standards set out herein are approved by the Town Council. These standards shall be incorporated into the approved development plan pertinent to each development area to protect the integrity of the development of SDD No. 4. They are minimum development standards and shall apply unless more restrictive standards are incorporated in the approved development plan which is adopted by the Town Council. Setbacks D. Area D. Glen Lyon Commercial Site. Required setbacks shall be as indicated on the approved development plans. Height E. Area D. Glen Lyon Commercial Site. 51% of the roof shall have a height between 32 and 40 feet. 49% of the roof area shall have a height under 32 feet. On the perimeter of the building for Area D, height is measured from finished grade up to any point of the roof. On the interior area of any building, height is measured from existing grade up to the highest point of the roof. Development plan drawings shall constitute the height allowances for Area D. Site Coverage Area D: No more than 37% of the total site area shall be covered by buildings and the parking structure. Landscaping At least the following percentages of the total development area shall be landscaped as provided in the development plan. This shall include retention of natural landscape, if appropriate. Areas A and B, fifty percent (50%), and in Areas C and D, sixty percent (60%), of the area shall be landscaped unless otherwise indicated on the site specific development plans. 12/18/2012 6 11/28/2012 \\VWS-STORAGE\DESKTOPS$\WCAMPBELL\DESKTOP\EVER VAIL SDD-3.DOC Parking and Loading D. Area D, Glen Lyon Commercial Site 1. Once the parking structure is constructed, the parking and access to Area D shall be managed per the TDA Parking Report, Parking Management Section, pages 6 and 7, August 10, 1988, and TDA Report, Vail Brewery Parking Analysis Update, dated January 16, 1990, both written by Mr. David Leahy. 2. No loading or delivery of goods shall be allowed on the public right-of-way along the South Frontage Road adjacent to the Area D development. 3. The owner of the property and brewery management shall prohibit semi-truck and trailer truck traffic to the Glen Lyon Commercial site. The only truck loading that shall be allowed to the site shall be vans having a maximum length of 22 feet. Recreation Amenities Tax Assessed The recreational amenities tax due for the development within SDD No. 4 under Chapter 3.20 shall be assessed at a rate not to exceed fifty cents per square foot of GRFA in Development Area B; and at a rate not to exceed fifteen cents per square foot of GRFA in Development Area C; and at a rate not to exceed seventy-five cents per square foot of floor area in Development Area D; and shall be paid in conjunction with each construction phase prior to the issuance of building permits. Conservation and Pollution Controls G. In Area D, a manhole on the brewery service line shall be provided so that the Upper Eagle Valley Consolidated Sanitation District may monitor BOD strength. H. In Area D, the brewery management shall not operate the brewery process during temperature inversions. It shall be the brewery owner's responsibility to monitor inversions. I.G. All trash compactors and trash storage areas shall be completely enclosed within Special Development District 4. J.H. Protective measures shall be used during construction to prevent soil erosion into Gore Creek, particularly when construction occurs in Areas A and D. K. The two employee dwelling units in Area D shall only be allowed to have gas fireplaces that meet the Town of Vail ordinances governing fireplaces. Additional Amenities and Approval Agreements for Special Development District No. 4. C. Area D, Glen Lyon Commercial Site. 12/18/2012 7 11/28/2012 \\VWS-STORAGE\DESKTOPS$\WCAMPBELL\DESKTOP\EVER VAIL SDD-3.DOC The development plan for this area has expired. See Ordinance No. 8, Series of 1998 for previous requirements. Employee Housing The development of SDD No. 4 will have impacts on available employee housing within the Upper Eagle Valley area. In order to help meet this additional employee housing need, the developer(s) of Areas A and D shall provide employee housing. In Area D, the above referenced employee housing requirement shall be provided on site. For the Westhaven Condominiums site, the employee housing requirement shall be met as set forth in Condition 3 herein. The developer(s) of Area A shall build a minimum of 3 employee dwelling units within the Cornerstone Building and 2 within the Liftside (Waterford Building). Each employee unit in the Cornerstone Building shall have a minimum square footage of 600 square feet. There shall be a total of 2 employee dwelling units in the Waterford Building. One shall be a minimum of 300 square feet and the other a minimum of 800 square feet. The developer of the Westhaven Condominiums building shall provide 4,400 square feet of employee housing pursuant to the terms of an agreement reached with the Town of Vail as described in Condition 3. The developer of Area D shall build 2 employee dwelling units in the Area D east building per the approved plan for the East Building. In Area D one employee dwelling unit shall have a minimum GRFA of 795 square feet and the second employee dwelling unit shall have a minimum GRFA of 900 square feet. The GRFA and number of employee units shall not be counted toward allowable density or GRFA for SDD No. 4. All Employee Housing Units shall be deed restricted per Chapter 12.13, as amended, of the Vail Town Code prior to issuance of building permits for the respective project. In Area C, Lots 39-1 and 39-2, shall be required to provide a Type II, Employee Housing Unit (EHU) per Chapter 12-13 of the Zoning Regulations of at least 500 sq. ft. each, on each lot. These lots shall not be entitled to the 500 sq. ft. of additional GRFA. The 500 sq. ft. shall be included in the allowable GRFA on these lots. Each lot shall also be entitled to 300 sq. ft. of garage area credit for the employee housing unit, in addition to the 600 sq. ft. garage area credit allowed per residence. The driveway width of 12 is allowed to remain (no increase in driveway width is required) for all allowed/required dwelling units and employee housing units on these lots. Section 3. Condition Precedent and Expiration. The amendment set forth in Section 2 hereof shall take effect on the date that the Final Plat for the Ever Vail Subdivision, creating Parcels 1 and 2, is properly recorded with the Eagle County Clerk and Recorder; provided that, if the Final Plat for the Ever Vail Subdivision has not been 12/18/2012 8 11/28/2012 \\VWS-STORAGE\DESKTOPS$\WCAMPBELL\DESKTOP\EVER VAIL SDD-3.DOC properly recorded by December 31, 2020, the amendment set forth in Section 2 hereof shall not take effect. Section 4. Severability. If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not effect the validity of the remaining portions of this ordinance; and the Town Council hereby declares it would have passed this ordinance, and each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. Section 5. Effect. The amendment of any provision of the Vail Town Code as provided in this ordinance shall not affect any right which has accrued, any duty imposed, any violation that occurred prior to the effective date hereof, any prosecution commenced, nor any other action or proceeding as commenced under or by virtue of the provision amended. The amendment of any provision hereby shall not revive any provision or any ordinance previously repealed or superseded unless expressly stated herein. Section 6. Repealer. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are repealed to the extent only of such inconsistency. This repealer shall not be construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore repealed. INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON FIRST READING this 4th day of December, 2012, and a public hearing for second reading of this Ordinance set for the 18th day of December, 2012, at 6:00 P.M. in the Council Chambers of the Vail Municipal Building, Vail, Colorado. ______________________________ Andy P. Daly, Mayor ATTEST: __________________________ Lorelei Donaldson, Town Clerk READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED this 18th day of December, 2012. _____________________________ Andy P. Daly, Mayor ATTEST: ____________________________ Lorelei Donaldson, Town Clerk 12/18/2012 11/28/2012 \\VWS-STORAGE\DESKTOPS$\WCAMPBELL\DESKTOP\EVER VAIL PARKING-3.DOC 1 ORDINANCE NO. 9 Series of 2011 AN ORDINANCE AMENDING SECTION 12-10-19 OF THE VAIL TOWN CODE, REGARDING COMMERCIAL CORE AREA PARKING REQUIREMENTS, TO INCORPORATE PARCELS 1 AND 2 OF THE EVER VAIL SUBDIVISION INTO THE COMMERCIAL CORE AREAS DESIGNATION, AND SETTING FORTH DETAILS IN REGARD THERETO. WHEREAS, Section 12-3-7 of the Vail Town Code sets forth the procedures for amending the Town's Zoning Regulations; WHEREAS, the Town has received an application to incorporate the property that will be known as Parcels 1 and 2 of the Ever Vail Subdivision into the Commercial Core Areas designation, as more particularly described in Exhibit A, attached hereto and incorporated herein by this reference; WHEREAS, based on the conceptual plans submitted to date, the Vail Town Council (the "Town Council") finds and determines that the proposed Ever Vail development will create a new base area portal to Vail Mountain with mixed use development, proximity to frequent mass transit, and differing peak times for various land uses, resulting in synergies for the demand of parking spaces; WHEREAS, the 1999 parking analysis prepared by Felsburg, Holt, and Ulveg, the Town's parking consultants, determined that when synergies existing in the demand for parking that there is a reduction in the need when compared to areas without the identified synergies; WHEREAS, Ordinance No. 9, Series of 2000 adopted off-street parking requirements for properties within the Town's Commercial Core Areas and created maps identifying those properties within the Commercial Core Areas; WHEREAS, on January 11, 2010, the Town of Vail Planning and Environmental Commission held a properly noticed public hearing on the application to amend the Zoning Regulations to incorporate Parcels 1 and 2 of the Ever Vail Subdivision within the Commercial Core Areas designation; WHEREAS, the Town of Vail Planning and Environmental Commission forwarded to the Town Council a recommendation of approval of the application, with one condition; WHEREAS, the incorporation of Parcels 1 and 2 of the Ever Vail Subdivision into the Commercial Core Areas designation cannot become effective until the Frontage Road is relocated and the Final Plat for the Ever Vail Subdivision is approved by the Town Council, signed by all required parties and properly recorded with the Eagle County Clerk and Recorder; 12/18/2012 11/28/2012 \\VWS-STORAGE\DESKTOPS$\WCAMPBELL\DESKTOP\EVER VAIL PARKING-3.DOC 2 WHEREAS, the Town Council is willing to provide the applicant with time to relocate the Frontage Road; WHEREAS, the applicant and the Town have discussed the timing of the Frontage Road relocation, and the Town Council finds and determines that eight years is sufficient time to relocate the Frontage Road; and WHEREAS, the Town Council finds and determines that, should the Frontage Road not be relocated by December 31, 2020, the incorporation of the Ever Vail Subdivision into the Commercial Core Parking designation shall not take effect. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. Findings. Pursuant to Section 12-3-7 of the Vail Town Code and based on the evidence and testimony presented in consideration of this ordinance, the Town Council finds and determines as follows: a. The inclusion of Parcels 1 and 2 of the Ever Vail Subdivision, when created, within the Commercial Core Areas designation will be consistent with the applicable elements of the adopted goals, objectives and policies outlined in the Vail Comprehensive Plan and is compatible with the development objectives of the Town; b. The amendment of the Vail Town Code to include Parcels 1 and 2 of the Ever Vail Subdivision, when created, within the Commercial Core Areas designation will further the general and specific purposes of the Zoning Regulations; and c. The amendment of the Vail Town Code to include Parcels 1 and 2 of the Ever Vail Subdivision, when created, within the Commercial Core Areas designation will promote the health, safety, morals, and general welfare of the Town and promote the coordinated and harmonious development of the Town in a manner that conserves and enhances its natural environment and its established character as a resort and residential community of the highest quality. d. This ordinance is necessary and proper for the health, safety and welfare of the Town of Vail and the inhabitants thereof. Section 2. Amendment. Subject to Section 3 hereof, Section 12-10-19 of the Vail Town Code, adopting the Commercial Core Areas Parking Map, is hereby amended by a modification to the map, as depicted in Exhibit A attached hereto and incorporated herein by this reference. Parcels 1 and 2 of the Ever Vail Subdivision are depicted with a hatched pattern. Section 3. Condition Precedent and Expiration. The amendment set forth in Section 2 hereof shall take effect on the date that the Final Plat for the Ever Vail Subdivision, creating Parcels 1 and 2, is properly recorded with the Eagle County Clerk and Recorder; provided that, if the Final Plat for the Ever Vail Subdivision has not been properly 12/18/2012 11/28/2012 \\VWS-STORAGE\DESKTOPS$\WCAMPBELL\DESKTOP\EVER VAIL PARKING-3.DOC 3 recorded by December 31, 2020, the amendment set forth in Section 2 hereof shall not take effect. Section 4. Severability. If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not effect the validity of the remaining portions of this ordinance; and the Town Council hereby declares it would have passed this ordinance, and each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. Section 5. Effect. The amendment of any provision of the Vail Town Code as provided in this ordinance shall not affect any right which has accrued, any duty imposed, any violation that occurred prior to the effective date hereof, any prosecution commenced, nor any other action or proceeding as commenced under or by virtue of the provision amended. The amendment of any provision hereby shall not revive any provision or any ordinance previously repealed or superseded unless expressly stated herein. Section 6. Repealer. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are repealed to the extent only of such inconsistency. This repealer shall not be construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore repealed. INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON FIRST READING this 4th day of December, 2012 and a public hearing for second reading of this Ordinance set for the 18th day of December, 2012, at 6:00 p.m. in the Council Chambers of the Vail Municipal Building, Vail, Colorado. ______________________________ Andy P. Daly, Mayor ATTEST: _________________________ Lorelei Donaldson, Town Clerk READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED this 18th day of December, 2012. _____________________________ Andy P. Daly, Mayor ATTEST: ____________________________ Lorelei Donaldson, Town Clerk 12/18/2012 Landmark Lion SquareLodge South Marriott Antlers Vail Spa Medical Center (parking) Library Landmark Evergreen Lodge Dobson Ice ArenaVa il 21 Lionshead Center Strata Lift House Scorpio Alphorn Ritz CarltonResidences Vantage Point Montaneros Westwind WaterT reatmentFa cility Enzian Vail International Tree Tops Lion SquareLo dge East Arrabellea tVa il Square Gondola Skaal Haus US Bank Lodge atLio nshead PH I & PH II CascadeC rossing VRMain tenanceBui lding Lion SquareL odge North LionsheadArca de VailProfes sionalB uilding Town of Vail Offices Concert HallPla za Lodge atL ionshead PH III Glen Lyon Offices LionsheadIn nAnn ex G o re C re ek R e sid e nc e s SwedishCabi n I 70 N FR O NT A G E R D W S F RON TA G E RD W W FORES T RD VAIL VIEW DR BE AVE R DA M RD E FOREST RD W MEADOW DR SAN DST ONE DR RE D S A N DS TO N E RD ROCKLEDGE RD W L I O N S H E A D C I R E LIONSHEAD CIR LI ON S RI D GE L OO P L I O N S H E A D P L I 70 OFF-RAMP BEA V ER DAM CIR SANDY LN I 70 ON-RAMP (WESTBOUND)RED SA ND ST ONE CIR SPRUC E CT I 70 01,000500 Feet I This map was created by the Town of Vail GIS Team. Use of this map should be for general purposes only.The Town of Vail does not warrant the accuracy of the information contained herein.(where shown, parcel line work is approximate) Last Modified: November 15, 2012 Core Area Parking Map IIC ore Area Parking Map IIL ionsheadL ionshead Commercial Core Area 12/18/2012 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: December 18, 2012 ITEM/TOPIC: Discussion of Amendment 64 Concerning the Retail Sale, Distribution, Cultivation and Dispensing of Recreational Marijuana. PRESENTER(S): Matt Mire ACTION REQUESTED OF COUNCIL: Review the attached memorandum, discuss and direct staff. BACKGROUND: On November 6, 2012, the registered electors of the State of Colorado voted to adopt Amendment 64, an amendment to the Colorado Constitution authorizing the personal use and regulation of marijuana. In sum, Amendment 64 legalizes recreational marijuana use for persons over the age of 21 and creates a licensing strucure for marijuana businesses. Amendment 64 has no effect on the state's medical marijuana regulations. Municipalities may choose to either prohibit or regulate retail marijuana businesses. There are many legal and practical considerations that will affest the implementation of Amendment 64, including the application of federal lawand the official position of the federal government. Over the coming months, the Town will be closely monitoring all state lefislative measures concerning Amendment 64 and awaiting the U.S. Department of Justice's official position on Amendment 64. STAFF RECOMMENDATION: Review the attached memorandum, discuss and direct staff. ATTACHMENTS: Amendment 64 Memorandum 12/18/2012 12/12/12 Q:\USERS\VAIL\MEMOS\AMENDMENT 64(PUBLIC)-M01.DOCX HAYES, PHILLIPS, HOFFMANN & CARBERRY, P.C. 1530 Sixteenth Street, Suite 200 Denver, Colorado 80202-1468 Telephone: (303) 825-6444 Facsimile: (303) 825-1269 Corey Y. Hoffmann Kendra L. Carberry Jefferson H. Parker Of Counsel Herbert C. Phillips J. Matthew Mire Vail Office P.O. Box 2616 Vail, CO 81658 Telephone: (970) 390-4941 Facsimile: (303) 825-1269 Ryan S. Malarky Kelly L. Donlon Elizabeth R. Cross Charissa A. Johnston John E. Hayes (Retired) TOWN OF VAIL MEMORANDUM DATE: DECEMBER 12, 2012 RE: AMENDMENT 64 AND THE AUTHORIZED USE OF MARIJUANA This memorandum outlines the basic provisions of Amendment 64, which was approved by Colorado voters on November 6, 2012, and became effective on December 10, 2012. Amendment 64 amends Article XVIII of the Colorado Constitution and legalizes the possession, use, display, purchase, and transport of one ounce or less of marijuana and marijuana accessories for persons 21 years of age or older. Colo. Const. art. XVIII, § 16(3)(a). Amendment 64 also authorizes the possession, growth, processing and transport of no more than six marijuana plants, if three or fewer are mature, flowering plants. Colo. Const. art. XVIII § 16(3)(b). All marijuana growing activities must take place in an enclosed, locked space and may not occur openly or publicly. Id. Amendment 64 authorizes the consumption of marijuana, so long as consumption occurs in private and not in a manner that endangers others. Colo. Const. art. XVIII, § 16(3)(d). A person 21 years of age or older may also transfer up to one ounce of marijuana, without remuneration, if the person receiving the marijuana is also 21 or older. Colo. Const. art. XVIII, § 16(3)(c). Amendment 64 also authorizes the sale of marijuana and marijuana products to consumers, if the person selling the marijuana obtains a valid license to operate a retail marijuana store. Colo. Const. art. XVIII, § 16(4)(b). Importantly, Amendment 64 has no effect on current state laws that prohibit driving while under the influence of marijuana or driving while impaired by marijuana. Colo. Const. art. XVIII, § 16(6)(b). Regulation of Marijuana Businesses Amendment 64 authorizes a number of new marijuana-related businesses: marijuana cultivation facilities, marijuana product manufacturing facilities, retail marijuana stores and marijuana testing facilities. Colo. Const. art. XVIII, § 16(4)(b)-(c). A person must obtain a license prior to 12/18/2012 December 12, 2012 Page 2 12/12/12 Q:\USERS\VAIL\MEMOS\AMENDMENT 64(PUBLIC)-M01.DOCX operating a commercial marijuana business, and these licenses will not be available until at least July 1, 2013. State Licensing Amendment 64 dictates that the Colorado Department of Revenue (the "DOR") must adopt implementing regulations by July 1, 2013. Colo. Const. art. XVIII, § 16(5)(a). These regulations must include procedures for the issuance, renewal, suspension and revocation of a license to operate a marijuana establishment, as well as a schedule of application, licensing and renewal fees. Id. License fees may not exceed $5,000 for new applicants. Colo. Const. art. XVIII, § 16(6)(a)(II). If a currently licensed medical marijuana business applies for a separate commercial marijuana establishment license, these applicants may not be charged a fee in excess of $500. Id. The DOR must also establish security requirements; labeling standards; requirements to prevent the sale to underage persons; health and safety regulations; restrictions on advertising; and civil penalties for failure to comply with recreational marijuana regulations. Colo. Const. art. XVIII, § 16(4)(a)(IV)-(IX). Local Licensing A local government may prohibit any of the commercial marijuana activities within its jurisdiction by adopting an ordinance or by an election. Colo. Const. art. XVIII, § 16(4)(h). A ballot measure must appear on a general election ballot during an even numbered year, so the next possible election date would be November 4, 2014. If a local government decides to allow commercial marijuana businesses, by October 1, 2013, it must enact an ordinance specifying the entity that will process applications for commercial marijuana establishments within its jurisdiction. Colo. Const. art. XVIII, § 16(5)(e). In addition, local governments are expressly authorized to enact ordinances or regulations governing: (1) the time, place, manner and number of marijuana establishment operations; (2) procedures for issuance, suspension, and revocation of a license issued by the local government; (3) licensing fees; and (4) civil penalties for violations. Colo. Const. art. XVIII, § 16(4)(h). Federal Law Pursuant to federal law, it remains illegal to "manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." 21 U.S.C. § 841. Marijuana is designated as a Schedule 1 controlled substance pursuant to federal law. 21 U.S.C. § 812(c). In 2005, the U.S. Supreme Court decided a case in which users and growers of medical marijuana sought a declaration that the federal Controlled Substance Act was unconstitutional as applied to the California Compassionate Use Act. Gonzales v. Raich, 545 12/18/2012 December 12, 2012 Page 3 12/12/12 Q:\USERS\VAIL\MEMOS\AMENDMENT 64(PUBLIC)-M01.DOCX U.S. 1 (2005). Ultimately, the Court held that medical marijuana use is subject to federal law, despite the fact that such use is legal at the state level. Id. at 27-28. In light of Gonzales, it is clear that a state's authorization of marijuana use does not negate federal law. Indeed, the success of medical marijuana businesses in Colorado has largely been the result of the federal government's choice not to involve itself in state sanctioned licensing. It remains to be seen whether the federal government will take such a lenient approach with recreational marijuana. On December 11, 2012, John Walsh, the United States Attorney for the District of Colorado, issued a statement indicating that the Department of Justice is reviewing Amendment 64; however, the Department's responsibility to enforce the Controlled Substances Act remains unchanged. Mr. Walsh went on to state that neither States nor the Executive Branch can nullify a statute passed by Congress and that growing, selling, or possessing any amount of marijuana remains illegal under federal law. See United States Attorney's Office, Statement By U.S. Attorney John Walsh Regarding Governor Signing Executive Order Implementing Amendment 64 (December 10, 2012). Taxation Recreational marijuana will be subject to existing state and local sales taxes. Amendment 64 specifically directs the General Assembly to enact a new excise tax (not to exceed 15% initially) upon all marijuana sold in the state. Under TABOR, however, this excise tax will need statewide voter approval. Colo. Const. art. X, § 20. If approved, the first $40 million generated by the state excise tax would be credited to the Public School Capital Construction Assistance Fund. Local governments may also enact new taxes on the sale of recreational marijuana, with voter approval. Conclusion In sum, Amendment 64 legalizes recreational marijuana use for persons over the age of 21 and creates a licensing structure for marijuana businesses. Amendment 64 has no effect on the state's medical marijuana regulations. Municipalities may choose to either prohibit or regulate retail marijuana businesses. There are many legal and practical considerations that will affect the implementation of Amendment 64, including the application of federal law and the official position of the federal government. Over the coming months, the Town will be closely monitoring all state legislative measures concerning Amendment 64 and awaiting the U.S. Department of Justice's official position on Amendment 64. 12/18/2012 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: December 18, 2012 ITEM/TOPIC: The first reading of Ordinance No. 21, Series of 2012, an ordinance for prescribed regulation amendments, pursuant to Section 12-3-7, Amendment, Vail Town Code, to allow for amendments to Section 12-8B-7, Height, Vail Town Code, to establish an allowable building height for golf course clubhouses within the outdoor recreation district, and to allow for amendments to Section 12-2-2, Definitions, Vail Town Code, to define the terms golf course and golf course clubhouse, and setting forth details in regard thereto. PRESENTER(S): Bill Gibson, Community Development Department ACTION REQUESTED OF COUNCIL: The applicant is requesting Town Council to table the public hearing of Ordinance No. 21, Series of 2012 to the January 8, 2013 Council meeting. BACKGROUND: The Planning and Environmental Commission held a public hearing on the proposed amendment on October 22nd and November 12, 2012. On November 12, 2012, Planning and Environmental Commission forwarded a recommendation of approval to the Vail Town Council for the proposed amendment by a vote of 5-0-2 (Pierce and Hopkins recused). STAFF RECOMMENDATION: The applicant is requesting Town Council to table the public hearing of Ordinance No. 21, Series of 2012 to the January 8, 2013 Council meeting. 12/18/2012 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: December 18, 2012 ITEM/TOPIC: The first reading of Ordinance No. 22, Series of 2012, an ordinance for a zone district boundary amendment, pursuant to Section 12-3-7, Amendment, Vail Town Code, to allow for a rezoning of the Vail Golf Course parking lot from the General Use District to the Outdoor Recreation District, located at 1775 Sunburst Drive/Lot 3, Sunburst Filing 3, and setting forth details in regard thereto. PRESENTER(S): Bill Gibson, Community Development Department ACTION REQUESTED OF COUNCIL: The applicant is requesting Town Council to table the public hearing of Ordinance No. 22, Series of 2012 to the January 8, 2013 Council meeting. BACKGROUND: The Planning and Environmental Commission held a public hearing on the proposed amendment on October 22nd and November 12, 2012. On November 12, 2012, Planning and Environmental Commission forwarded a recommendation of approval to the Vail Town Council for the proposed amendment by a vote of 5-0-2 (Pierce and Hopkins recused). STAFF RECOMMENDATION: The applicant is requesting Town Council to table the public hearing of Ordinance No. 22, Series of 2012 to the January 8, 2013 Council meeting. 12/18/2012 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: December 18, 2012 ITEM/TOPIC: Second Reading of Ordinance No. 23, Series of 2012, an Ordinance Approving a Franchise Agreement with Comcast of Colorado VI, LLC for the Provision of Cable Services in the Town of Vail. PRESENTER(S): Matt Mire ACTION REQUESTED OF COUNCIL: Approve, approve with modifications, or deny Ordinance No. 23, Series of 2012, on second reading. (See attached memorandum) BACKGROUND: On April 2, 2007 and again on December 20, 2010, the Town received from Comcast Colorado VI, LLC ("Comcast") an application for renewal of its franchise agreement with the Town. During negotiations of a new franchise agreement, the existing franchise agreement was extended several times and during that time the Town discovered performance and technical issues that necessitated resolution prior to the approval of a new franchise agreement. In July 2011, the Town and Comcast entered into a Compliance Agreement to resolve the performance and technical issues. By July 2012, the performance and technical issues were resolved and the Compliance Agreement was fully performed. Article 12 of the Vail Town Charter authorizes the Town Council to grant franchises for a term not to exceed twenty (20) years. The procedures for renewal of franchise agreements for the provision of cable services is set forth in Chapter 5 of Title 8 of the Vail Town Code. (See attached memorandum) STAFF RECOMMENDATION: Approve, approve with modifications, or deny Ordinance No. 23, Series of 2012, on second reading. See attached memorandum. ATTACHMENTS: Comcast Memorandum Ordinance No. 23, Series of 2012 12/18/2012 HAYES, PHILLIPS, HOFFMANN & CARBERRY, P.C. 1530 Sixteenth Street, Suite 200 Denver, Colorado 80202-1468 Telephone: (303) 825-6444 Facsimile: (303) 825-1269 Corey Y. Hoffmann Kendra L. Carberry Jefferson H. Parker Of Counsel Herbert C. Phillips J. Matthew Mire Vail Office P.O. Box 2616 Vail, CO 81658 Telephone: (970) 390-4941 Facsimile: (303) 825-1269 Ryan S. Malarky Kelly L. Donlon Elizabeth R. Cross Charissa A. Johnston John E. Hayes (Retired) TOWN OF VAIL MEMORANDUM TO: MAYOR AND TOWN COUNCIL FROM: J. MATTHEW MIRE, TOWN ATTORNEY KENDRA L. CARBERRY, ESQ. DATE: OCTOBER 11, 2012 RE: COMCAST FRANCHISE This memorandum provides an update regarding negotiations with Comcast for renewal of its cable franchise with the Town. As you may remember, Comcast's current franchise expired on December 31, 2009, but was extended while Comcast addressed a number of compliance issues. Now that Comcast has addressed each of the compliance issues, the Town is in a position to consider the renewal of Comcast’s franchise. Summary of Proposed New Franchise We have been negotiating a new form of franchise agreement with Comcast for the past several months. The proposed new franchise contains standard provisions, most notably the following: 1. Authorization to use public rights-of-way. The primary purpose of a franchise agreement is to give Comcast permission to install facilities in those public rights-of-way under the Town’s control. The new franchise accomplishes this. 2. Franchise fee. Comcast currently collects a franchise fee of 5% on gross revenues collected from cable subscribers in the Town. That franchise fee remains unchanged in the new franchise. 10/11/12 Q:\USERS\VAIL\COMCAST\FRANCHISE-M01.DOCX 12/18/2012 October 11, 2012 Page 2 10/11/12 Q:\USERS\VAIL\COMCAST\FRANCHISE-M01.DOCX 3. Protection of Town's police power. The new franchise contains numerous provisions protecting the Town’s ability to remove and relocate Comcast facilities (at Comcast's expense) in the interest of the public health, safety and welfare. 4. Free subscriptions. The current franchise provides free cable for public buildings, and the new franchise does the same. 5. Technical and customer service standards. The new franchise requires Comcast to comply with certain technical and customer service standards imposed by the Federal Communications Commission. 6. Insurance and indemnification. The new franchise requires $5 million in general liability insurance, $3 million in automobile liability insurance, $1 million in employer’s liability insurance and statutory workers’ compensation insurance. It also requires Comcast to indemnify the Town. 7. Violation procedures and liquidated damages. The new franchise establishes procedures for dealing with franchise violations, and provides for liquidated damages in the event of a violation by Comcast. Remaining Issues At this point, only four issues remain, and we would like the Town Council’s input on those issues (the corresponding sections of the franchise agreement are highlighted): 1. Term – Section 2.3. Comcast would like the longest term possible. The Town's charter allows for 20 years, but Section 8-5-15 of the Vail Town Code only allows for a 15-year term. The Town Council may determine that a term as short as 10 years is acceptable. If the Town Council would like to go as long as 20 years, a Code amendment would be required. 2. Competitive Equity – Section 2.6(C). Comcast has requested that we include a provision requiring competitive equity with not only other cable providers (which is required by federal law), but also other providers of similar services. We would not recommend including such a provision, because it is not required by law. 3. Performance Bond and Letter of Credit – Sections 5.4 and 5.5. The Vail Town Code allows the Town Council to request a letter of credit from Comcast of up to $50,000 at any time. Many communities require Comcast to post a letter of credit throughout the entire term of a franchise. Comcast has requested that we not insert an automatic letter of credit in the new franchise, instead allowing the Town Council to request the letter of credit only if the Town Council determines that a letter of credit is necessary (usually in the case of alleged violations). Comcast has explained that a letter of credit needlessly ties up cash. 12/18/2012 October 11, 2012 Page 3 10/11/12 Q:\USERS\VAIL\COMCAST\FRANCHISE-M01.DOCX Similarly, we requested a performance bond in the amount of $125,000, and Comcast countered with an offer of a $50,000 performance bond. Performance bonds are notoriously difficult to collect, so in our opinion, the performance bond is less helpful than the letter of credit. For perspective, the Town currently holds a performance bond of $5,000 and a $50,000 letter of credit. However, that letter of credit was only collected when the Town accused Comcast of franchise violations. Based on the foregoing, we would recommend that the Town Council require a $50,000 performance bond and a $10,000 letter of credit to be maintained throughout the franchise term, with an allowance for a $50,000 letter of credit within 10 days of a demand from the Town. The lower letter of credit should alleviate Comcast’s concern about tying up cash, while allowing the Town to pay for costs associated with an initial determination of noncompliance. 4. Public, Educational and Governmental Fee ("PEG fee") – Section 9.6. Like the current franchise, the new franchise allows the Town to require Comcast to charge a fee to support PEG programming. Under federal law, the funds generated by the PEG fee must be used to support capital expenditures for Channel 5 or a similar program. The Town can require Comcast to collect a PEG fee of up to 50 cents per subscriber – though the current franchise allows for a PEG fee of up to 25 cents per subscriber, Comcast is not currently collecting any PEG fee for the Town. As such, we would like to know whether the Town Council wishes to impose a PEG fee now, or at least have the new franchise provide for the opportunity to collect a PEG fee in the future. PEG fees are a pass-through, and charged as a line item on customer bills. If the Town Council does wish to impose a PEG fee, we also have an issue as to how that PEG fee will be imposed on multiple dwelling units ("MDUs"). Approximately half of the Town's subscribers are MDUs. Typically, a PEG fee is imposed on a per-subscriber bases, but in an MDU, only one PEG fee is imposed on the whole account, no matter how many users. Comcast has recently started a new program in other states whereby PEG fees would be calculated on a percentage basis, like franchise fees. If the Town Council wishes to impose a PEG fee, Comcast may be willing to assess the PEG fee on a percentage basis. Conclusion The proposed new franchise provides substantial protections for the Town, while allowing Comcast to operate its cable system in a reasonable manner. As such, once we resolve the four outstanding issues, we will be recommending that the Town Council approve the new franchise agreement. We will be discussing the four outstanding issues at your executive session on October 16, 2012. Unless substantial issues remain, we plan to bring the ordinance approving the franchise agreement to the Town Council for first reading on November 6, 2012. As always, if you have any questions or concerns, please feel free to contact us. 12/18/2012 Ordinance No. 23, Series of 2012 1 ORDINANCE NO. 23 SERIES 2012 AN ORDINANCE APPROVING A FRANCHISE AGREEMENT WITH COMCAST OF COLORADO VI, LLC FOR THE PROVISION OF CABLE SERVICES IN THE TOWN OF VAIL WHEREAS, the Town and TCI Cablevision (the predecessor of Comcast Colorado VI, LLC) entered into a franchise agreement on January 5, 1995 to allow TCI Cablevision to provide cable service to subscribers of such service in the Town of Vail, which franchise agreement expired on January 4, 2010; WHEREAS, on April 2, 2007 and again on December 20, 2010, the Town received from Comcast Colorado VI, LLC ("Comcast") an application for renewal of its franchise agreement with the Town; WHEREAS, during negotiations of a new franchise agreement, the existing franchise agreement was extended several times; WHEREAS, during negotiations of a new franchise agreement, the Town discovered performance and technical issues that necessitated resolution prior to the approval of a new franchise agreement; WHEREAS, in July 2011, the Town and Comcast entered into a Compliance Agreement to resolve the performance and technical issues; WHEREAS, by July 2012, the performance and technical issues were resolved and the Compliance Agreement was fully performed; WHEREAS, Article 12 of the Vail Town Charter authorizes the Town Council to grant franchises for a term not to exceed twenty (20) years; WHEREAS, the procedures for renewal of franchise agreements for the provision of cable services is set forth in Chapter 5 of Title 8 of the Vail Town Code; and WHEREAS, the Town Council finds and determines that the franchise agreement with Comcast for the provision of cable services in the Town, in the form attached hereto and incorporated herein by this reference, complies with Article 12 of the Vail Town Charter and Chapter 5 of Title 8 of the Vail Town Code, NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. The Franchise Agreement between the Town and Comcast is hereby approved in substantially the form attached hereto, subject to final approval by the Town Attorney, for a term of ten (10) years, commencing on January 1, 2013. 12/18/2012 Ordinance No. 23, Series of 2012 2 Section 2. If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not effect the validity of the remaining portions of this ordinance; and the Town Council hereby declares it would have passed this ordinance, and each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. Section 3. The Town Council hereby finds, determines and declares that this ordinance is necessary and proper for the health, safety and welfare of the Town and the inhabitants thereof. Section 4. The amendment of any provision of the Vail Town Code as provided in this ordinance shall not affect any right which has accrued, any duty imposed, any violation that occurred prior to the effective date hereof, any prosecution commenced, nor any other action or proceeding as commenced under or by virtue of the provision amended. The amendment of any provision hereby shall not revive any provision or any ordinance previously repealed or superseded unless expressly stated herein. Section 5. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are repealed to the extent only of such inconsistency. This repealer shall not be construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore repealed. INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON FIRST READING this 4th day of December, 2012 and a public hearing for second reading of this Ordinance set for the 18th day of December, 2012, in the Council Chambers of the Vail Municipal Building, Vail, Colorado. _____________________________ Andy Daly, Mayor ATTEST: ____________________________ Lorelei Donaldson, Town Clerk READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED this 18th day of December, 2012. _____________________________ Andy Daly, Mayor ATTEST: ____________________________ Lorelei Donaldson, Town Clerk 12/18/2012 FRANCHISE AGREEMENT TABLE OF CONTENTS SECTION 1. DEFINITIONS.......................................................................................................1 SECTION 2. GRANT OF FRANCHISE....................................................................................4 2.1 Grant.............................................................................................................................4 2.2 Use of Public Ways......................................................................................................5 2.3 Term.............................................................................................................................5 2.4 Effective Date..............................................................................................................5 2.5 Competitive Equity......................................................................................................6 2.6 Familiarity with Agreement and Acceptance...............................................................6 SECTION 3. FRANCHISE FEE AND FINANCIAL CONTROLS.........................................6 3.1 Franchise Fee...............................................................................................................6 3.2 Payments......................................................................................................................7 3.3 Audits...........................................................................................................................7 3.4 Additional Commitments Not Franchise Fees.............................................................7 3.5 Payment on Termination..............................................................................................7 3.6 Service Packages..........................................................................................................8 3.7 Tax Liability.................................................................................................................8 SECTION 4. ADMINISTRATION AND REGULATION.......................................................8 4.1 Rates and Charges........................................................................................................8 4.2 No Rate Discrimination...............................................................................................8 4.3 Time Limits Strictly Construed....................................................................................8 4.4 Performance Evaluations.............................................................................................8 4.5 Late Fees and Disconnection.......................................................................................9 SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS.......................................9 5.1 Indemnification............................................................................................................9 5.2 Indemnification Procedures and Defense....................................................................9 5.3 Insurance....................................................................................................................10 5.4 Letter of Credit...........................................................................................................11 5.5 Performance Bond......................................................................................................12 SECTION 6. CUSTOMER SERVICE......................................................................................12 6.1 Service Availability...................................................................................................12 6.2 Customer Service Standards......................................................................................12 6.3 Customer Privacy.......................................................................................................12 6.4 Customer Service Agreement and Manual................................................................13 12/18/2012 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC SECTION 7. RECORDS............................................................................................................13 7.1 Required Records.......................................................................................................13 7.2 Proprietary Information..............................................................................................14 7.3 Copies of Federal and State Reports..........................................................................14 SECTION 8. PROGRAMMING...............................................................................................14 8.1 Broad Programming Categories.................................................................................14 8.2 Obscenity...................................................................................................................15 8.3 Services for the Disabled...........................................................................................15 8.4 Parental Control Device.............................................................................................15 8.5 Complimentary Cable Service...................................................................................15 SECTION 9. ACCESS................................................................................................................16 9.1 Access Channels........................................................................................................16 9.2 Triggers for Additional Access Channels..................................................................16 9.3 Underutilized Access Channels.................................................................................16 9.4 Access Channel Location...........................................................................................16 9.5 Access Channel Promotion........................................................................................17 9.6 PEG Fee.....................................................................................................................17 9.7 Return Lines...............................................................................................................17 SECTION 10. USE OF PUBLIC WAYS..................................................................................18 10.1 Construction and Maintenance.................................................................................18 10.2 Location and Movement of Facilities.......................................................................18 10.3 Acquisition of Facilities...........................................................................................19 10.4 Reservation of Public Ways.....................................................................................19 10.5 Discontinued Facilities.............................................................................................19 10.6 Use of Conduit or Ducts...........................................................................................20 10.7 Undergrounding.......................................................................................................20 10.8 Tree Trimming.........................................................................................................20 10.9 GIS Mapping............................................................................................................21 SECTION 11. CABLE SYSTEM DESIGN AND TECHNICAL STANDARDS..................21 11.1 Technical Performance.............................................................................................21 11.2 Cable System Performance Testing.........................................................................21 11.3 Standby Power..........................................................................................................21 SECTION 12. VIOLATIONS AND REVOCATION..............................................................21 12.1 Procedure for Remedying Violations.......................................................................21 12.2 Alternative Remedies...............................................................................................22 12.3 Liquidated Damages.................................................................................................22 12/18/2012 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC 12.4 Revocation................................................................................................................23 12.5 Purchase of the Cable System..................................................................................24 SECTION 13. TRANSFER........................................................................................................24 13.1 Transfer of Ownership or Control............................................................................24 SECTION 14. MISCELLANEOUS..........................................................................................25 14.1 Cumulative Rights....................................................................................................25 14.2 Costs to be Borne by Comcast.................................................................................26 14.3 Binding Effect..........................................................................................................26 14.4 Modification.............................................................................................................26 14.5 Governing Law and Venue.......................................................................................26 14.6 No Joint Venture......................................................................................................26 14.7 Waiver......................................................................................................................26 14.8 Severability...............................................................................................................26 14.9 Force Majeure..........................................................................................................26 14.10 Entire Agreement...................................................................................................26 14.11 Notices....................................................................................................................27 12/18/2012 1 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC FRANCHISE AGREEMENT This Franchise Agreement ("Agreement") is made between the Town of Vail, Colorado, a Colorado home rule municipality (the "Town") and Comcast of Colorado VI, LLC ("Comcast"), on this ____ day of ___________________, 2012. WHEREAS, the Town, having determined that the financial, legal, and technical ability of Comcast is reasonably sufficient to provide the services, facilities, and equipment necessary to meet the future cable-related needs of the community, desires to enter into this Agreement with Comcast for the operation and maintenance of a cable system on the terms and conditions set forth herein. NOW THEREFORE, the Town and Comcast agree as follows: SECTION 1. DEFINITIONS For purposes of this Agreement, the following terms shall have the following meanings, provided that terms not defined, or those defined, but not capitalized within the text, shall be given their common and ordinary meaning, and the word "shall" is always mandatory: "Access" includes Public Access, Educational Access and Governmental Access, collectively and means the availability for Noncommercial use by various governmental and educational agencies, institutions and organizations in the community of particular channels on the Cable System to receive and distribute Video Programming to subscribers as permitted under applicable law. "Access Channel" means any Channel designated for Access purposes or otherwise made available to facilitate Access programming. "Affiliate" when used in connection with Comcast means any Person who owns or controls, is owned or controlled by, or is under common ownership or control of Comcast. "Bad Debt" means amounts lawfully owed by a Customer and accrued as revenues on the books of Comcast, but not collected after reasonable efforts by Comcast. "Basic Service" means any Cable Service Tier that includes, at a minimum, the retransmission of local television Broadcast Signals and PEG Access Channels required in this Franchise and any additional programming added by the Town and made available to all Customers in the Franchise Area. "Broadcast Signal" means a television or radio signal transmitted over the air to a wide geographic audience, and received by a Cable System off-the-air by antenna, microwave, satellite dishes or any other means. "Cable Act" means the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, as amended by the Telecommunications Act of 1996, and any amendments thereto. "Cable Operator" means any Person or group of Persons, including Comcast, who provides Cable Service over the Cable System and directly or through one or more Affiliates owns a significant interest in such Cable System or who otherwise controls or is responsible for, through any arrangement, the management and operation of the Cable System. 12/18/2012 2 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC "Cable Service" means the one-way transmission to Customers of Video Programming, or other programming service and Customer interaction, if any, that is required for the selection or use of such Video Programming or other programming service. "Cable System" means Comcast's facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment, designed to provide Cable Service that includes Video Programming and provided to Customers in the Franchise Area. "Channel" means a portion of the frequency band capable of carrying a Video Programming Service or combination of Video Programming Services, whether by analog or digital signal, on a twenty-four (24) hour per day basis or a portion thereof. "Customer" means a Person who lawfully receives Cable Service from the Cable System with Comcast's express permission. "Designated Access Provider" means an entity designated by the Town to manage or co-manage Public, Educational or Governmental Access Channels and facilities. The Town may be a Designated Access Provider. "Dwelling Unit" means any building or portion thereof that has independent living facilities, including provisions for cooking, sanitation and sleeping, and that is designed for residential occupancy. "Educational Access" means Access where Schools are the primary users having editorial control over programming and services. "Emergency" means any condition constituting a clear and present danger to life or property. "Expanded Basic Service" means cable programming services not included in the Basic Service and excluding premium or pay-per-view services. "FCC" means the Federal Communications Commission or its lawful successor. "Fiber Optic" means a transmission medium of optical fiber cable, along with all associated electronics and equipment capable of carrying electric lightwave pulses. "Franchise Area" means the area within the jurisdictional boundaries of the Town, including any areas hereafter annexed by Town. "Franchise Fee" includes any tax, fee or assessment of any kind imposed by the Town on Comcast or Customers, or both solely because of their status as such, but excluding: (i) any tax, fee or assessment of general applicability (including any such tax, fee, or assessment on both utilities and Cable Operators or their services, but not including a tax, fee, or assessment that is unduly discriminatory against Cable Operators or cable Customers); (ii) capital costs that are required by the Agreement to be incurred by Comcast for Access facilities; (iii) requirements or charges incidental to the awarding or enforcing of the Agreement, including but not limited to, payments for bonds, letters of credit, insurance, indemnification, penalties or liquidated damages; or (iv) any fee imposed under Title l7, United States Code. "Governmental Access" means Access where governmental institutions or their designees are the primary users having editorial control over programming and services. "Gross Revenue" means all revenue derived directly or indirectly by Comcast or its Affiliates from the operation of the Cable System in the Franchise Area, including without limitation 12/18/2012 3 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC monthly and other fees charged Customers for Cable Service including Basic Service, Expanded Basic Service, any expanded Tiers of Cable Service, other Tiers of Cable Service, optional Premium Service, pay-per-view and per-program Channels, Cable Service installation, disconnection, reconnection and change-in-service fees, Leased Access Channel fees, remote control rental fees, late fees and administrative fees, consideration received by Comcast from programmers for carriage of Cable Service on the Cable System and recognized as revenue under generally accepted accounting principles ("GAAP"), revenues from rentals of converters or other Cable System equipment, advertising sales revenues (including local, regional and a pro rata share of national advertising carried on the Cable System in the Franchise Area but excluding commissions paid to an unaffiliated agency), revenues from program guides, additional outlet fees, revenue from the sale or carriage of other Cable Service, and revenues from home shopping. Gross Revenue does not include (i) to the extent consistent with GAAP, Bad Debt, provided, however, that any part of such Bad Debt that is written off but subsequently collected shall be included in Gross Revenue in the period collected; or (ii) any taxes on services furnished by Comcast that are imposed directly on any Customer or user by the State, Town or other governmental unit and that are collected by Comcast on behalf of said governmental unit; or (iii) capital costs or contributions required by this Franchise. Franchise Fees are not a tax and are therefore included in Gross Revenue. "Headend" or "Hub" means a facility for signal reception and dissemination on a Cable System, including cable, antennas, wires, satellite dishes, monitors, switchers, modulators, processors for Broadcast Signals or other signals, and all other related equipment and Facilities. "Incremental Costs" means Comcast's direct and actual material and labor cost (excluding profit) of constructing, relocating or placing additional facilities for the Town, excluding the costs that Comcast would otherwise incur to construct, relocate or place facilities for Comcast including, but not limited to, trenching, pipe bedding, backfilling, compacting, restoring the surface, and other charges, costs or expenses. "Institutional Network" means that part of the Cable System facilities or capacity designated for use by non-residential Customers including communications to, from and among government agencies, schools, libraries and other public agencies. "Interconnect" or "Interconnection" means the provision of Access Channel programming to a geographically contiguous cable system, including technical, engineering, physical, and other necessary components to accomplish, complete and adequately maintain such provisioning. "Late fee" means and includes any assessment, charge, cost, fee or sum, however characterized, that Comcast imposes upon a Customer solely for late payment of a bill is a late fee. "Leased Access Channel" means any Channel or portion of a Channel commercially available for programming in accordance with Section 612 of the Cable Act. "Noncommercial" means, in the context of Access Channels, those particular products and services that are not promoted or sold in order to generate revenue that exceeds the costs of operations for the Town or any Designated Access Provider. This term shall not be interpreted to prohibit an Access Channel operator or programmer from soliciting and receiving contributions used to produce and transmit Video Programming on an Access Channel, or from acknowledging a contribution, in the manner of the Corporation for Public Broadcasting or some similar manner, subject to applicable law. 12/18/2012 4 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC "Person" means any natural person, lawful trustee, successor, assignee, transferee, or personal representative, sole proprietorship, partnership, joint venture, association, or limited liability entity or corporation, or any other form of entity or organization. "Public Access" means Access where any member of the general public may be a programmer on a nondiscriminatory basis, subject to operating rules formulated by the Town or its designee. Such rules shall not be designed to control the content of public access programming. Such rules may also address the extent to which and manner in which members of the general public who are not residents of the Town may be programmers on the Access Channel. "Public Way" means land in the Franchise Area acquired for or dedicated to the public and maintained under public authority, including but not limited to public streets, roads, highways, avenues, lanes, alleys, bridges, sidewalks, easements, and similar public property. "Residential Subscriber" means any Person who receives Cable Service delivered to a Dwelling Unit, excluding such multiple Dwelling Units billed on a bulk-billing basis. "Standard Installation" means a one hundred twenty five (125) foot drop connecting to the exterior demarcation point. "State" means the State of Colorado. "Tier" means a category of Cable Service provided by Comcast for which a separate rate is charged. "Video Programming" means programming provided by, or generally considered comparable to programming provided by, a television broadcast station, or cable programming provider primarily consisting of full motion video and audio. SECTION 2. GRANT OF FRANCHISE 2.1 Grant (A) The Town hereby grants to Comcast a nonexclusive authorization to make reasonable and lawful use of the Public Ways to construct, operate, maintain, reconstruct, repair and upgrade the Cable System for the purpose of providing Cable Service, subject to this Agreement and applicable law. Comcast shall provide Cable Service, as authorized by this Agreement, in the Franchise Area in accordance with line extension and density provisions as provided herein. The franchise granted by this Agreement is subject to all prior rights, interests, easements, or franchises granted by Town or its predecessors to any Person to any property or Public Way, including the right of the Town to use same for any purpose it lawfully deems fit. This Agreement conveys limited rights and interests in only those Public Ways in which the Town has an actual interest; it is not a warranty of title or interest in any property. (B) Comcast shall comply with the Vail Town Code and the lawful exercise of the Town’s police power. Subject to the Town’s lawful exercise of its police power, in the event of a conflict between the Vail Town Code and the Agreement, the Agreement shall govern. Comcast acknowledges that the Town may enforce or modify its generally applicable regulatory policies by lawful exercise of the Town's police powers throughout the term of this Agreement, and Comcast agrees to comply with such lawful enforcement or modifications. Comcast reserves the right to challenge provisions of any ordinance, rule, regulation or other enactment of the Town that conflicts with its contractual rights under the Franchise, either now or in the future. This 12/18/2012 5 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC Agreement shall not be interpreted to prevent the Town from imposing other conditions, to the extent permitted by law. (C) No rights shall pass to Comcast by implication. Without limiting the foregoing, by way of example and not limitation, this Agreement shall not be a substitute for: any other permit or authorization required for the privilege of transacting and carrying on a business within the Town that is required by the Town; any permit, agreement or authorization required by the Town for Public Way users in connection with operations on or in Public Ways or public property; or any permits or agreements for occupying any other property to which access is not specifically granted by this Agreement. (D) This Agreement is an express authorization to provide Cable Service only. This Agreement is not a bar to the imposition of any lawful conditions on Comcast with respect to non-Cable Service, telecommunications services or information services, whether similar, different or the same as the condition specified herein. This Agreement does not relieve Comcast of any obligation it may have to obtain from the Town an authorization to provide non- Cable Service, telecommunications services or information services or relieve Comcast of its obligation to comply with any such authorization(s) that may be lawfully required. (E) This Agreement shall have no effect on any obligation of Comcast in effect prior to the effective date of this Agreement to indemnify or insure the Town against acts and omissions occurring during the period that the prior franchise agreement was in effect, nor shall it have any affect upon liability to pay Franchise Fees that were due and owed under a prior franchise. 2.2 Use of Public Ways (A) Subject to the Vail Town Code, as amended, Comcast may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, through, below and along the Public Ways, such wires, cables, conductors, ducts, conduit, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary and appurtenant to the operation of the Cable System. (B) Comcast shall install Cable System facilities in a manner that minimizes interference with the use of the Public Ways by others. To protect public health, safety and welfare, the Town may: require that Cable System facilities be installed at a particular time, at a specific place or in a particular manner as a condition of access to a particular Public Ways; deny access if Comcast is not willing to comply with Town's requirements; remove, or require removal of, any facility that is not installed in compliance with the requirements established by Town, or that is installed without prior Town approval of the time, place or manner of installation and charge Comcast for all the costs associated with removal; and require Comcast to cooperate with others to minimize adverse impacts on the Public Ways through joint trenching and other arrangements. 2.3 Term This Agreement shall have a term of ten (10) years, beginning on the Effective Date. 2.4 Effective Date The Effective Date of this Agreement shall be January 1, 2013. 12/18/2012 6 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC 2.5 Competitive Equity (A) Comcast acknowledges and agrees that the Town reserves the right to grant additional franchises to provide Cable Service in the Franchise Area; provided that if any such franchise is granted by the Town which, in the reasonable opinion of Comcast, contains more favorable or less burdensome Material Terms and Conditions than this Agreement, the Town agrees that, within ninety (90) days of Comcast's request, the parties shall amend this Franchise to insure that the regulatory and financial burdens on each entity are materially equivalent. "Material Terms and Conditions" includes without limitation: Franchise Fees; insurance coverage amounts; System build-out requirements; Public, Education and Government Access Channels and support; customer service standards; required reports and related record keeping; and notice and opportunity to cure breaches. The parties agree that this Subsection does not require a word for word identical franchise or authorization for a competitive entity if the regulatory and financial burdens on each entity are materially equivalent. (B) If an application for a new cable franchise is filed with the Town proposing to serve the Franchise Area, in whole or in part, the Town shall make a good faith effort to provide notice of such application upon Comcast prior to acting on the application. (C) Notwithstanding any provisions to the contrary, at any time that a facilities-based Cable Services provider, legally authorized by state or Federal law, makes Cable Services or multiple Channels of Video Programming within the Franchise Area available for purchase by Customers without a franchise or other similar lawful authorization granted by the Town, then Comcast may seek modification pursuant to subsection (A) hereof, or the term of this Franchise shall, upon ninety (90) days written notice from Comcast, be shortened so that the Franchise shall be deemed to expire on a date six (6) months from the first day of the month following the date of Comcast's notice; provided, however, that if the provision of Cable Services or Video Programming by the other facilities-based Cable Services Provider within the Franchise Area is being legally challenged by the Town, the term of this Franchise shall remain unaffected until such legal challenge is concluded. 2.6 Familiarity with Agreement and Acceptance (A) Comcast acknowledges and warrants that it has carefully read and fully comprehends the terms of this Agreement and that it has fully considered the requirements of this Agreement, and finds that the same are commercially practicable at this time and consistent with all local, State and federal laws and regulations currently in effect. (B) By executing this Agreement, Comcast: (1) acknowledges and accepts the Town's legal right to issue and enforce the Agreement; (2) agrees that it will not oppose the Town's lawful intervention in any legal or regulatory proceeding affecting the Cable System; (3) accepts and agrees to comply with every provision of this Agreement; and (4) agrees that the Agreement was negotiated in compliance with applicable law, and that it will not raise any claim to the contrary. SECTION 3. FRANCHISE FEE AND FINANCIAL CONTROLS 3.1 Franchise Fee As compensation for the use of the Public Ways, Comcast shall pay as a Franchise Fee to Town, for the duration of this Agreement, an amount equal to five percent (5%) of Comcast's Gross Revenue. 12/18/2012 7 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC 3.2 Payments (A) Franchise Fee payments to Town shall be computed quarterly for the preceding calendar quarter ending March 31, June 30, September 30, and December 31. Each quarterly payment shall be due and payable no later than thirty (30) days after said dates. For untimely payments, Comcast shall pay, in addition to the payment or sum due, interest from the due date at the rate of eight percent (8%) per annum until the date the Town receives the payment. (B) No acceptance of payment shall be construed as an accord by Town that the amount paid is the correct amount, nor shall an acceptance of payment be construed as a release of any claim Town may have against Comcast. The period of limitation for recovery of Franchise Fees payable hereunder shall be three (3) years from the date on which payment by Comcast was due or such shorter period of time if so provided by law. (C) A report prepared by a representative of Comcast showing the basis for the computation of the Franchise Fees paid during that period shall either accompany the Franchise Fee payment or be provided under separate cover within ten days of the report. 3.3 Audits (A) On an annual basis, upon thirty (30) days' prior written notice, the Town may conduct an independent audit of Comcast's financial records necessary to ensure compliance with this Agreement. If Comcast cooperates in making all relevant records available upon request, the Town will in good faith attempt to complete each audit within six (6) months, and the audit period shall not be any greater than the previous three (3) years. (B) Additional amounts due to the Town as a result of the audit shall be paid within sixty (60) days following written notice to Comcast. If a Franchise Fee underpayment is discovered as the result of an audit, Comcast shall pay, in addition to the amount due, interest at the maximum allowed rate as provided under State law calculated from the date the underpayment was originally due until the date the Town receives the payment. (C) If the audit shows that Franchise Fees have been underpaid by five percent (5%) or more in a calendar year, Comcast shall pay the actual cost of the audit in a total amount not to exceed $10,000. 3.4 Additional Commitments Not Franchise Fees No term of this Agreement shall affect Comcast's obligation to pay Franchise Fees. Although the total sum of Franchise Fee payments and additional commitments set forth elsewhere in this Agreement may total more than five percent (5%) of Gross Revenue in any twelve-month period, Comcast agrees that the additional commitments regarding PEG funding and Access Channels are not Franchise Fees, nor are they to be offset or credited against Franchise Fee payments unless specifically provided by applicable law. 3.5 Payment on Termination Within one hundred twenty (120) days of termination of this Agreement, Comcast shall file with the Town a financial statement, certified by an independent certified public accountant, showing the Gross Revenue received by Comcast since the end of the previous fiscal year. Within forty five (45) days of the filing of the certified statement with the Town, Comcast shall pay any unpaid amounts as indicated. If Comcast fails to satisfy its remaining financial obligations as 12/18/2012 8 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC required in this Agreement, the Town may do so by utilizing the funds available in a Letter of Credit or other security provided by Comcast. 3.6 Service Packages If Comcast offers bundled Cable Service and non-Cable Service to Customers, Comcast shall fairly and reasonably allocate revenue with regard to Cable Service. 3.7 Tax Liability The Franchise Fees shall be in addition to all taxes or other levies or assessments now or hereafter required to be paid by businesses by any applicable law including without limitation sales, use, utility and other taxes, and business license fees. SECTION 4. ADMINISTRATION AND REGULATION 4.1 Rates and Charges (A) Comcast's rates and charges for Cable Service shall be subject to regulation by Town to the full extent authorized by applicable federal, State and local laws. Customer billing shall be itemized by service pursuant to FCC Regulation, 47 C.F.R. § 76.1619 or as amended. (B) Comcast will use best efforts to maintain with the Town a current schedule of applicable rates charged for Cable Service provided under this Agreement. The Town recognizes that such rates change periodically, and if the Town clerk has reason to believe that the schedule of rates on file is not up to date, then upon three (3) days advance request, Comcast shall provide the Town with a current and complete schedule of applicable rates and charges for Cable Service provided to Customers in the Town. Nothing in this Subsection shall be construed to require Comcast to file rates and charges under temporary reductions or waivers of rates and charges in conjunction with promotional campaigns. 4.2 No Rate Discrimination All Comcast rates and charges shall be published (in the form of a publicly-available rate card), made available to the public, and shall be non-discriminatory as to all Persons of similar classes, under similar circumstances. Nothing herein shall be construed to prohibit: (1) The temporary reduction or waiving of rates or charges in conjunction with promotional campaigns; (2) The offering of reasonable discounts to similarly situated Persons; or (3) The offering of bulk discounts for multiple Dwelling Units. 4.3 Time Limits Strictly Construed When this Agreement sets forth a time for any act to be performed by Comcast, such time shall be deemed to be of the essence, and any failure of Comcast to perform within the allotted time may be considered a breach of this Agreement. 4.4 Performance Evaluations Special evaluation sessions may be held at any time upon written request and upon not less than thirty (30) days prior notice by the Town during the term of this Agreement. All such evaluation sessions shall be open to the public. Topics that may be discussed at any evaluation session may include those issues surrounding Comcast's failure to comply with the terms of the Agreement 12/18/2012 9 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC provided that nothing in this Subsection shall be construed as requiring the renegotiation of this Agreement or any term or provision therein and further provided that this Subsection need not be followed before other legal or equitable remedies within this Agreement. 4.5 Late Fees and Disconnection Comcast's late fee and disconnection policies and practices shall be nondiscriminatory, and such policies and practices, and any fees imposed pursuant to this Subsection, shall apply equally throughout the Franchise Area without regard to the neighborhood or income level of the Customers. SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS 5.1 Indemnification (A) Comcast, at its own expense, shall indemnify, defend and hold harmless the Town, its officers, officials, boards, commissions, agents, representatives and employees, from any action or claim for injury, damage, loss, liability, settlement, proceeding, judgment, or cost or expense, including court and appeal costs and attorney fees and expenses, arising from any casualty or accident to Person or property, including, without limitation, copyright infringement, defamation, and all other damages in any way arising out of, or by reason of, any construction, excavation, erection, operation, maintenance, repair or reconstruction, or any other act done under this Agreement, by or for Comcast, its authorized agents, or by reason of any neglect or omission of Comcast, its authorized agents or its employees. Comcast shall consult and cooperate with the Town while conducting its defense of the Town. (B) The provisions of this Section 5 shall survive the termination of this Agreement unless superseded by indemnification provisions in a new franchise or in federal or state law. (C) Subject to applicable law, Comcast shall indemnify the Town for any damages, including but not limited to damages incurred as a result of delay, payable by the Town related to Comcast's failure to properly install, remove, adjust or relocate any of its facilities in the Public Ways in accordance with any lawful relocation required by the Town. (D) Comcast shall also indemnify, defend and hold the Town harmless for any claim for injury, damage, loss, liability, cost and expense, including court and appeal costs and attorney fees and expenses in any way arising out of any failure by Comcast to secure consents from the owners, authorized distributors or franchisees/licensors of programs to be delivered by the Cable System, provided however, that Comcast will not be required to indemnify the Town for any claims arising out of the use of Access Channels by the Town or its Designated Access Provider or use by the Town of the emergency alert system. 5.2 Indemnification Procedures and Defense (A) If a claim or action arises, the Town or any other indemnified party shall promptly tender the defense of the claim or action to Comcast, which defense shall be at Comcast's expense. The Town may participate in the defense of a claim and Comcast may not agree to any settlement of claims without the Town's written approval, which shall not be unreasonably withheld. (B) The fact that Comcast carries out any activities under this Agreement through independent contractors shall not constitute an avoidance of or defense to Comcast's duty of defense and indemnification. 12/18/2012 10 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC (C) If separate representation is necessary, such as a conflict of interest between the Town and the counsel selected by Comcast to represent the Town, Comcast shall select other counsel. 5.3 Insurance (A) Comcast shall maintain at all times in full force and effect at its own expense each of the following policies of insurance: (1) Commercial General Liability coverage for bodily injury, personal injury, and property damage with limits of no less than two million dollars ($2,000,000) per occurrence. The general aggregate limit shall be no less than five million dollars ($5,000,000). (2) Commercial Automobile Liability Insurance with minimum combined single limits of at least three million dollars ($3,000,000) each occurrence and five million dollars ($5,000,000) aggregate with respect to each of Comcast's owned, hired and non- owned, or any other vehicles assigned to or used in any activities authorized under or used in conjunction with this Agreement. (3) Employer's Liability with limits of at least one million dollars ($1,000,000). (4) Workers' Compensation insurance shall be maintained during the life of this Agreement to comply with State law for all employees. (B) Each policy shall provide that the insurance shall not be canceled or terminated so as to be out of compliance with these requirements without forty-five (45) days' prior written notice, and ten (10) days' notice for nonpayment of any premium. Comcast shall maintain continuous uninterrupted insurance coverage, in at least the amounts required, until all work required to be performed under the terms of this Agreement is satisfactorily completed and, in the case of Commercial General Liability Insurance, for at least one (1) year after termination of this Agreement. A failure of Comcast to comply with any claim reporting provisions or any breach of an insurance policy warranty shall not affect coverage afforded under the policy to protect the Town. However, if coverage is not afforded under these circumstances, Comcast shall indemnify the Town for losses the Town otherwise would have been covered for as an additional insured. (C) All insurance policies, except Workers' Compensation, shall contain a waiver of transfer rights of recovery (subrogation) against the Town, its officers, officials, agents, and employees for any claims arising out of Comcast's work or service. Comcast shall be responsible for deductibles or self-insured retention. (D) All policies shall contain, or shall be endorsed so that: (1) The Town and its officers, officials, boards, commissions, agents, representatives, and employees are to be covered as, and have the rights of, additional insureds with respect to liability arising out of activities performed by, or on behalf of, Comcast under this Agreement or applicable law, or in the construction, operation, upgrade, maintenance, repair, replacement or ownership of the Cable System; (2) Comcast's insurance coverage shall be primary insurance with respect to the Town and its officers, officials, boards, commissions, agents, volunteers and employees. Any insurance or self insurance maintained by the Town or its officers, officials, boards, 12/18/2012 11 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC commissions, agents, representatives, volunteers or employees shall be in excess of Comcast's insurance and shall not contribute to it, provided the occurrence arises out of Comcast's negligence; and (3) Comcast's insurance shall apply separately to each insured against whom a claim is made or lawsuit is brought, except with respect to the limits of the insurer's liability. (E) Comcast shall furnish the Town with certificates of insurance and an endorsement reflecting additional insured status. The certificates for each insurance policy are to be on standard forms or such forms as are consistent with standard industry practices, and are to be received and approved by the Town at the time of acceptance of this Agreement by Comcast with existing insurance coverage to be maintained by Comcast until that date. Comcast hereby warrants that its insurance policies satisfy the requirements of this Agreement. (F) The insurance limits mandated for any insurance coverage required by this Agreement are not intended to be an indication of exposure nor are they limitations on liability or indemnification. 5.4 Letter of Credit (A) On the Effective Date, Comcast shall provide to the Town as security for the faithful performance by Comcast of all provisions of this Agreement, a letter of credit from a financial institution satisfactory to the Town in the amount of fifty thousand dollars ($50,000) (the "Initial Letter of Credit"). If, on December 31, 2014, Comcast is in compliance with this Agreement, including without limitation the Customer Service Standards, the Town shall release the Initial Letter of Credit, and Comcast shall provide the performance bond required by Section 5.5 hereof. (B) At any time during the term of this Agreement after the Initial Letter of Credit has been released by the Town, if there is a claim by the Town of an uncured breach by Comcast of a provision of this Franchise, then the Town may require and Comcast shall reestablish and provide, as quickly as possible, but no later than thirty (30) days after a request from the Town, a letter of credit from a financial institution satisfactory to the Town in the amount of fifty thousand dollars ($50,000). (C) After completion of the procedures set forth in Section 12.1 or other applicable provisions of this Franchise, the letter of credit may be drawn upon by the Town for purposes that include, but are not limited to the following: (1) Failure of Comcast to pay the Town sums due under this Agreement; (2) Reimbursement of costs borne by the Town to correct violations not corrected by Comcast; and (3) Liquidated damages assessed against Comcast as provided in this Agreement. (D) The Town shall give Comcast written notice of any withdrawal under this Subsection upon such withdrawal. Within ten (10) days following receipt of such notice, Comcast shall restore the letter of credit to the amount required under this Agreement. 12/18/2012 12 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC 5.5 Performance Bond Within seven (7) days of the release of the Initial Letter of Credit, Comcast shall provide a performance bond to the Town in the amount of fifty thousand dollars ($50,000) to ensure the faithful performance of its responsibilities under this Agreement and applicable law, including, by way of example and not limitation, its obligations to relocate and remove its facilities and to restore property. Comcast may be required to obtain additional bonds, such as generally applicable construction bonds, in accordance with the Vail Town Code. All bonds shall be in a form approved by the Town Attorney. Comcast shall pay all premiums or costs associated with maintaining the bonds, and shall keep the same in full force and effect at all times. SECTION 6. CUSTOMER SERVICE 6.1 Service Availability (A) Except as otherwise provided herein, Comcast shall provide a standard aerial installation of Cable Service within seven (7) days of a request by any Person in the Franchise Area. Standard Installations shall be done within seven (7) days of a request for service. Comcast shall provide such service: (1) With no extension charge except as specifically authorized by this Agreement; (2) At a non-discriminatory installation charge for a Standard Installation and with additional charges for non-Standard Installations computed according to a non- discriminatory methodology for such installations; and (3) At non-discriminatory monthly rates for all Customers, excepting commercial Customers, Multiple Dwelling Unit Bulk Customers and other lawful exceptions to uniform pricing. (B) No Person shall be refused service arbitrarily. However, for non-Standard Installations or a density of less than twenty five (25) residences per 5280 aerial cable-bearing strand feet of trunk or distribution cable, or sixty (60) residences per 5280 underground trench feet of trunk or distribution cable, Cable Service may be made available on the basis of a capital contribution in aid of construction, including cost of material, labor and easements. Comcast may require that the payment of the capital contribution in aid of construction be borne by such potential Customers and be paid in advance. 6.2 Customer Service Standards Comcast shall comply with the Customer service standards in 47 C.F.R. §§ 76.309, 76.1602, 76.1603 and 76.1619, and any local standards adopted in accordance with applicable law. Comcast acknowledges the Town's ability to enact customer service standards that exceed those enacted by the FCC and the Town acknowledges Comcast's right to recover the costs associated with complying with such standards. Comcast shall not enter into a contract with any Customer that is in any way inconsistent with the terms of this Agreement, or the requirements of any applicable Customer service standards. 6.3 Customer Privacy Comcast shall comply with privacy rights of Customers in accordance with applicable law. 12/18/2012 13 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC 6.4 Customer Service Agreement and Manual (A) Comcast shall provide to Customers an accurate, comprehensive service agreement and customer installation packet for use in establishing Customer service. This material shall, at a minimum, contain the following: (1) Comcast's procedure for investigation and resolution of Customer complaints; (2) Services to be provided and rates for such services; (3) Billing procedures; (4) Service termination procedure; (5) A complete statement of the Customer's right to privacy; (6) Equipment policy; and, (7) The name, address and phone number of the Customer service department that is responsible for handling questions and complaints for Comcast. (B) A copy of the current installation packet shall be available to each Customer: (1) at the time of initial installation and at any time the packet is requested by the Customer. SECTION 7. RECORDS 7.1 Required Records  (A) Comcast shall at all times maintain: (1) Access to a full and complete set of plans, records and maps showing the location of all Cable System facilities in Public Ways; (2) A copy of all FCC filings on behalf of Comcast, its parent corporations or Affiliates that relate to the operation of the Cable System in the Franchise Area; (3) A list of Comcast's rates and Channel line-ups; and, (4) Financial records as required by Section 3 hereof. (B) The Town, upon reasonable prior written notice to Comcast, may review Comcast's records regarding the operation of the Cable System and the provision of Cable Service in the Franchise Area which are reasonably necessary to monitor and enforce Comcast's compliance with this Agreement, including without limitation any records required to be kept in a public file by Comcast pursuant to FCC rules and regulations. All such records shall be retained by Comcast for at least three (3) years. Comcast shall not deny the Town access to any of Comcast's records on the basis that Comcast's records are under the control of any parent corporation, Affiliate or a third party. The Town may request in writing copies of such records that are reasonably necessary, and Comcast shall provide such copies within thirty (30) days at Comcast's sole expense. If the requested records are too voluminous, or for security reasons cannot be copied or removed, then Comcast may request, in writing within ten (10) days of receipt of such request, that the Town inspect them at Comcast's local offices or at one of Comcast's offices more convenient to Town or its duly authorized agent. If any records of Comcast are not kept in such office and not made available to the Town upon written request, and if the Town determines that an examination of such records is necessary for the enforcement 12/18/2012 14 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC of this Agreement, then all reasonable travel expenses incurred in making such examination shall be paid by Comcast. (C) Comcast shall maintain at its business office, in a file available for public inspection during regular business hours, those documents required pursuant to FCC rules and regulations. (D) Comcast shall keep an accurate and comprehensive compilation of any and all Customer complaints received and Comcast's actions in response to those complaints, in a manner consistent with the privacy rights of Customers. Comcast shall provide an executive summary report to the Town on an annual basis within one hundred twenty (120) days of the end of each year that shall include the following information: (1) Nature, date and type of Customer complaints escalated to Comcast by the Town in writing and date complaints were resolved; (2) Average response time for service calls; (3) Phone activity report; (4) A summary of the previous year's activities regarding the development of the Cable System, including, beginning and ending plant miles constructed; (5) An annual report of the company on Form 10-K that is filed with the U.S. Securities and Exchange Commission; and, (6) A copy of all Comcast's rules and regulations applicable to Customers. 7.2 Proprietary Information If Comcast provides records to the Town, the Town agrees to keep confidential any proprietary information to the extent permitted by law. Comcast shall be responsible for clearly and conspicuously identifying the work proprietary, and shall provide a brief written explanation as to why such information is confidential and how it may be treated as such under applicable law. 7.3 Copies of Federal and State Reports Within thirty (30) days of the Town's written request, Comcast shall submit to the Town copies of any pleading, application, notification, communication or document of any kind, submitted by Comcast or an Affiliate to any federal, State or local court, regulatory agency or other government body if such documents relate to the operations of the Cable System. Comcast shall not claim confidential, privileged or proprietary rights to such documents, unless under federal, State, or local law such documents have been determined to be confidential by a court of competent jurisdiction, or a federal or State agency. With respect to all other reports, documents and notifications provided to any federal, State or local regulatory agency as a routine matter in the due course of operating the Cable System, Comcast shall make such documents available to the Town upon the Town's written request. SECTION 8. PROGRAMMING 8.1 Broad Programming Categories (A) Comcast shall provide at least the following initial broad categories of programming to the extent such categories are reasonably available.  Educational programming; 12/18/2012 15 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC  News, weather and information;  Sports;  General entertainment including movies;  Foreign language programming;  Children’s programming;  Family oriented programming;  Arts, culture, performing arts programming;  Science and documentary programming;  National/international news; and  Local/regional news. (B) Comcast shall not delete or so limit as to effectively delete any broad category of programming within its control without prior written notice to the Town. (C) In the event of a modification proceeding under federal law, the mix and quality of Cable Service provided by Comcast shall follow the guidelines of Federal law. 8.2 Obscenity Comcast shall not transmit, or permit to be transmitted, over any Channel subject to its editorial control any programming which is obscene under applicable federal, State or local laws. 8.3 Services for the Disabled In providing Cable Service to the disabled, Comcast shall comply with the Americans With Disabilities Act, as amended. 8.4 Parental Control Device Upon request by any Customer, Comcast shall make available at no charge a parental control device to enable a Customer to control access to both the audio and video portions of any Channels. Comcast shall inform its Customers of the availability of the device at the time of their initial subscription and upon request. 8.5 Complimentary Cable Service Comcast, upon request, shall provide without charge, a Standard Installation and one outlet of Basic Service to those buildings now existing, acquired or hereafter constructed that are either owned and occupied or leased and occupied by the Town, its designee or other governmental entity, including without limitation fire stations, police stations, libraries, schools and the Access studio, provided that they are already served or are within one hundred twenty-five (125) feet of the Cable System. The Cable Service provided shall not be distributed beyond the originally installed outlet without authorization from Comcast, which shall not be unreasonably withheld. In the case of leased facilities, the recipient of service is responsible for securing approval for appropriate right of entry suitable to Comcast in its reasonable discretion. The Cable Service provided shall not be used for commercial purposes or in golf course clubhouses. For new hookups, Comcast shall not provide an outlet to such buildings where a non-Standard Installation 12/18/2012 16 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC is required, unless the Town or building owner/occupant agrees to pay the cost of the non- Standard Installation. SECTION 9. ACCESS 9.1 Access Channels (A) Comcast shall provide, at no charge, two (2) Public, Educational or Governmental (PEG) Access Channels. (B) The Town may delegate management of the PEG Access Channels to a Designated Access Provider. (C) All PEG Access Channels provided for in this Agreement shall be carried system-wide in the Franchise Area, and shall be provided on the Basic Service tier unless otherwise agreed to by the parties. (D) The technical quality of the PEG Access Channels shall not be lower than the quality of other Channels on the same tier of service, at the same technical quality that programming is provided to Comcast by the Town or its Designated Access Provider. (E) The Town shall establish and enforce rules for use of the PEG Access Channels to assure nondiscriminatory access to the Channels to similarly situated users; and to promote use and viewership of the channels, consistent with applicable law. PEG Access Channels may not be used for commercial purposes. (F) Comcast may not exercise any editorial control over the content of programming on the PEG Access Channels. 9.2 Triggers for Additional Access Channels The Town may require Comcast to make available up to one (1) additional Access Channel when the Access Channels required by Subsection 9.1 are used for locally scheduled original programming for at least forty (40) hours per week between 8:00 a.m. and midnight during any consecutive ten (10) week period, and then Comcast shall make available, upon written request, within six (6) months, one additional Access Channel for Access Programming purposes. The programming of any additional Access Channel shall contain distinct and non-repetitive programming of the other Access Channels. 9.3 Underutilized Access Channels Comcast and the Town agree that it is their mutual goal to fully and efficiently use the Channel capacity of the Cable System, which may include allowing Comcast to use underutilized Access Channels. If Comcast believes that any Access Channel is underutilized, Comcast may file a request with the Town to use that Access Channel. The Town shall in its sole discretion render a decision regarding the matter within six (6) months of receiving the request. Should the Town find that the Access Channel may be used by Comcast, then Comcast may begin using such Channel thirty (30) days after receipt of the decision, until such time as the Town requires that the Channel again be available for Access purposes in accordance with Section 9.2. 9.4 Access Channel Location (A) Comcast shall use its best efforts to minimize the movement of Access Channel assignments. Comcast shall provide to the Town a minimum of ninety (90) days prior written 12/18/2012 17 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC notice, prior to any relocation of its Access Channels, unless the change is required by federal law, in which case Comcast shall give the Town the maximum notice possible. Comcast shall pay the Town two thousand dollars ($2,000) per Access Channel, per move. (B) Comcast, at Comcast's expense, shall include notice of Access Channel changes in its regular monthly billing. 9.5 Access Channel Promotion Comcast shall provide the Town the opportunity to include promotional notices on electronic bills on not more than two occasions per year. Comcast shall be provided an opportunity to review all such promotional notices. The Town shall be responsible for any costs associated with the provision of such notices. 9.6 PEG Fee (A) Within ninety (90) days of a written request by the Town, Comcast shall collect and provide to Town an amount equal to twenty-five cents ($0.25) per Residential Subscriber per month as capital support for PEG access ("PEG Fee"). Comcast shall make PEG Fee payments quarterly, no later than thirty (30) days following the end of the quarter. The Town has the right to reduce or increase the PEG Fee up to a maximum of fifty cents ($0.50) per Residential Subscriber per month, after holding a public hearing and inviting public comment on the matter. The Town shall notify Comcast in writing of any changes to the PEG Fee at least sixty (60) days prior to such change. (B) Within ninety (90) days of a written request by the Town, Comcast shall collect and provide to the Town a PEG Fee in an amount not to exceed one-quarter-of-one percent (0.25%) of Gross Revenues derived from the operation of the Cable System to provide Cable Services to any Person who receives Cable Services delivered to a Dwelling Unit in the Franchise Area. (C) The Town may elect to receive PEG Fees calculated under either Subsection (A) or Subsection (B) of this Section, but not both. (D) To the extent permitted by law, the PEG Fee may be itemized on Customer billing statements and recovered from Customers over the term of this Agreement. Comcast shall not be responsible for paying the PEG Fee with respect to gratis or Bad Debt accounts. 9.7 Return Lines (A) Comcast shall maintain the return lines from all existing Access broadcast facilities to the Headend in order to enable the distribution of programming to Customers on the Access Channels. Comcast shall continuously maintain these return lines throughout the term of the Agreement, unless any of these locations are no longer used in the future to originate Access programming. (B) Within eighteen (18) months of a written request by the Town, Comcast shall construct and maintain additional return lines to other locations in the Franchise Area; provided however, that Comcast's construction costs shall be paid by the Town or its Designated Access Provider. (C) Return Lines shall be maintained by Comcast in the same manner as the rest of the Cable System so that Access Channels may be viewed at the same quality that is provided by the Town or its Designated Access Provider. 12/18/2012 18 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC SECTION 10. USE OF PUBLIC WAYS 10.1 Construction and Maintenance (A) The Cable System shall be constructed and maintained so as not to interfere with sewers, water pipes, or any other property of Town, or with any other pipes, wires, conduits, pedestals, structures or other facilities installed in Public Ways. (B) In its maintenance and construction of the Cable System, Comcast shall comply with the Vail Town Code. All construction and maintenance of Comcast's facilities within Public Ways shall, regardless of who performs the construction, be and remain Comcast's responsibility. (C) Comcast's contractors and subcontractors shall be licensed and bonded in accordance with the Town's ordinances, regulations and requirements. Work by contractors and subcontractors is subject to the same restrictions, limitations and conditions as if the work were performed by Comcast. Comcast shall be responsible for all work performed by its contractors and subcontractors and others performing work on its behalf as if the work were performed by it, and shall ensure that all such work is performed in compliance with this Agreement and other applicable law, and shall be jointly and severally liable for all damages and correcting all damage caused by them. It is Comcast's responsibility to ensure that contractors, subcontractors or other Persons performing work on Comcast's behalf are familiar with the requirements of this Agreement and other applicable laws governing the work performed by them. (D) Comcast shall give reasonable notice to private property owners of construction work in adjacent Public Ways. (E) If Comcast disturbs, alters, or damages any public or private property, Comcast shall at its own expense replace and restore any such Public Way or property to a condition equal to the condition of the property existing immediately prior to the disturbance. (F) The Town may inspect any of Comcast's facilities or construction upon at least twenty- four (24) hours' notice, or, in case of emergency, without prior notice, and the Town may charge Comcast generally applicable inspection fees therefor. If an unsafe condition is found, the Town, in addition to taking any other action permitted under applicable law, may order Comcast to make necessary repairs and alterations to correct the unsafe condition by a time the Town establishes. The Town may correct, inspect, administer and repair the unsafe condition if Comcast fails to do so, and to charge Comcast therefor. (G) On notice from Town that any work is being conducted contrary to this Agreement, or in violation of the terms of any applicable law or permit, the work may immediately be stopped by Town. The stop work order shall: be in writing; be given to the Person doing the work or posted on the work site; be sent to Comcast by mail; indicate the nature of the alleged violation or unsafe condition; and establish conditions under which work may be resumed. 10.2 Location and Movement of Facilities (A) After the Town or any franchisee or permittee of the Town notifies Comcast of a proposed Public Way excavation, or design of any project impacting facilities in the Public Way, Comcast shall, at Comcast's expense, mark on the surface all of its located underground facilities within the area of the proposed excavation in accordance with applicable law. 12/18/2012 19 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC (B) The Town may remove or disconnect Comcast's facilities and equipment located in the Public Way or on any other property of the Town in the case of an emergency. Except in an emergency, the Town shall provide reasonable notice to Comcast prior to taking such action and shall provide Comcast with the opportunity to perform such action. Following notice by the Town, Comcast shall remove, replace, relocate, modify or disconnect any of its facilities in a Public Way or on any other property of the Town, except that the Town shall provide at least ninety (90) days written notice of any major capital improvement project that would require the removal, relocation, replacement, modification or disconnection of Comcast's facilities or equipment. If Comcast fails to complete this work within the time prescribed and to the Town's satisfaction, the Town may cause such work to be done at Comcast's expense. Comcast shall remit payment to Town within thirty (30) days of receipt of an itemized list of those costs. (C) If the Town requires Comcast to relocate its facilities located in a Public Way, the Town shall make a reasonable effort to provide Comcast with an alternate location within the Public Way. If funds are generally made available to users of the Public Way for such relocation, Comcast shall be entitled to its pro rata share of such funds. (C) At the request of any Person holding a valid permit and upon reasonable advance notice, Comcast shall temporarily raise, lower or remove its wires as necessary to permit the moving of a building, vehicle, equipment or other item. The cost of such temporary change may be charged by Comcast to the permit holder, and Comcast may require the estimated payment in advance. Such payment is an exchange between Comcast and the permittee, and the Town will not be the administrator of these transactions. 10.3 Acquisition of Facilities Upon Comcast's acquisition of Cable System related facilities in any Public Way, or upon the addition or annexation to the Town of any area in which Comcast owns or operates any facility, such facilities shall be subject to the terms of this Agreement. The Town acknowledges that inclusion of revenue from Customers affected by annexation to the Town will require ninety (90) days to make changes in the billing system affecting those Customers. 10.4 Reservation of Public Ways Nothing in this Agreement shall prevent the Town from constructing any public improvement, or from permitting other utilities the use of the Public Ways. If the Cable System interferes with the construction, maintenance or repair of any Public Way or public improvement, the Cable System shall be removed or relocated in the area the Town directs. If the Town requires Comcast to relocate its facilities located within the Public Way, the Town shall make a reasonable effort to provide Comcast with an alternate location within the Public Way. All such removal or relocation shall be preceded by sixty (60) days written notice or such additional time as may be provided by Town. Should Comcast fail to remove, adjust or relocate its facilities by the date established by the Town, the Town may effect such removal, adjustment or relocation at Comcast's sole expense. If funds are generally made available to users of the Public Way for such relocation, Comcast shall be entitled to its pro rata share of such funds. 10.5 Discontinued Facilities (A) When Comcast intends to discontinue using any facility within a Public Way, Comcast shall submit to Town a complete description of the facility and the date on which Comcast 12/18/2012 20 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC intends to discontinue using the facility. Comcast may remove the facility or request that the Town allow it to remain in place. Notwithstanding Comcast's request that any such facility remain in place, the Town may require Comcast to remove the facility from the Public Way or modify the facility to protect the public health, welfare, safety and convenience. The Town may require Comcast to perform a combination of modification and removal of the facility. (B) Comcast shall complete such removal or modification in accordance with a schedule set by the Town. Until Comcast removes or modifies the facility as directed by the Town, or until the rights to and responsibility for the facility are accepted by another Person having authority to construct and maintain such facility, Comcast shall be responsible for the facility, as well as maintenance of the Public Way, in the same manner and degree as if the facility were in active use, and Comcast shall retain all liability for such facility. (C) If Comcast abandons any facilities, the Town may choose to use such facilities for any purpose whatsoever. 10.6 Use of Conduit or Ducts (A) The Town may install or affix and maintain wires and equipment owned by the Town for Town purposes in or upon any of Comcast's ducts or conduits in the Public Ways, without charge to the Town, to the extent space therein or thereon is reasonably available, and pursuant to all applicable ordinances and codes. For purposes of this Subsection, "Town purposes" includes, but is not limited to, the use of the structures and installations for fire, police, traffic, water, telephone, or signal systems, but not for Cable Service in competition with Comcast. Comcast shall not deduct the value of such use of its facilities from its Franchise Fee payments or from other fees payable to the Town. (B) Comcast acknowledges that the Public Ways have a finite capacity for containing conduit and facilities. Therefore, Comcast agrees that when the Town determines it is impracticable to permit construction of an underground conduit system by any other Person which may at the time have authority to construct or maintain conduits or ducts in the Public Ways, but excluding Persons providing Cable Service in competition with Comcast, the Town may require Comcast to afford to such Person the right to use Comcast's surplus ducts or conduits in common with Comcast, pursuant to the terms and conditions of an agreement for use of surplus ducts or conduits entered into by Comcast and the other Person. Nothing herein shall require Comcast to enter into an agreement with such Person if, in Comcast's reasonable determination, such an agreement will compromise the integrity of the Cable System. 10.7 Undergrounding Where electric and telephone utility wiring is underground, all Cable System lines, wiring and equipment shall also be placed underground with other wireline service at no expense to the Town. Related equipment, such as pedestals, shall be placed in accordance with applicable Town requirements. In areas where either electric or telephone utility wiring are aerial, Comcast may install aerial cable, except when a property owner or resident requests underground installation and agrees to bear the additional cost in excess of aerial installation. 10.8 Tree Trimming Comcast may prune or cause to be pruned, using proper pruning practices, any tree in any Public Way which interferes with the Cable System. Comcast shall comply with all Town requirements 12/18/2012 21 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC regarding tree trimming. Except in emergencies, Comcast may not prune trees at a point below thirty (30) feet above sidewalk grade without seven (7) days prior written notice to the owner or occupant of the premises abutting the Public Way in or over which the tree is growing. The owner or occupant of the abutting premises may prune such tree at his or her own expense during this one (1) week period. If the owner or occupant fails to do so, Comcast may prune such tree at its own expense. For purposes of this Subsection, emergencies exist when it is necessary to prune to protect the public or Comcast's facilities from imminent danger only. 10.9 GIS Mapping Comcast shall provide the Town with records of Comcast's trunk and distribution facilities in the Franchise Area in a standard geographic information (GIS) format within thirty (30) days of receipt of written request or longer if agreed to by the parties. SECTION 11. CABLE SYSTEM DESIGN AND TECHNICAL STANDARDS 11.1 Technical Performance The technical performance of the Cable System shall meet or exceed all applicable technical standards authorized or required by law, including FCC technical standards as they may be amended from time to time, regardless of the transmission technology utilized. The Town shall have the authority provided by law to enforce compliance with these technical standards. 11.2 Cable System Performance Testing (A) Comcast shall, at its expense, perform all tests on the Cable System required by the FCC (including FCC required test points located in the Franchise Area) and shall maintain written records of its test results in accordance with FCC requirements. Copies of such test results shall be provided to the Town upon request. (B) All required tests may be witnessed by representatives of the Town. Upon request, Comcast will notify the Town before any required technical proof-of-performance or other testing occurs. (C) Comcast shall promptly take all necessary measures to correct any performance deficiencies and prevent their recurrence. Sites shall be re-tested within five (5) days following correction until correction has been confirmed and satisfactory results are obtained. 11.3 Standby Power Comcast shall provide standby power generating capacity at the Cable System Headend capable of providing at least twelve (12) hours of emergency operation. Comcast shall maintain standby power supplies that will supply back-up power of at least two (2) hours duration throughout the distribution networks, and four (4) hours duration at all nodes and hubs. SECTION 12. VIOLATIONS AND REVOCATION 12.1 Procedure for Remedying Violations (A) If the Town believes that Comcast has failed to perform any material obligation of this Agreement, the Town shall notify Comcast in writing, stating with specificity, the nature of the alleged violation. Comcast shall have thirty (30) days from the receipt of such notice to: 12/18/2012 22 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC (1) Respond to the Town, contesting the Town's assertion that a violation has occurred, or notifying the Town that violation cannot be cured within thirty (30) days because of the nature of the alleged violation, and requesting a hearing in accordance with Subsection (B), below; or (2) Cure the violation. (B) If Comcast does not cure the violation within thirty (30) days, or denies the violation and requests a hearing, the Town shall set a public hearing on the violation. The Town shall provide not less than seven (7) days prior written notice of the hearing. At the hearing, Comcast shall be provided an opportunity to be heard, to present and question witnesses, and to present evidence in its defense. (C) If, after considering the evidence presented at the public hearing, the Town Council determines that a violation exists, the Town may order Comcast to remedy the violation within fourteen (14) days or within such other reasonable timeframe agreed to by the parties. If Comcast does not remedy the violation within such time to the Town's reasonable satisfaction, the Town may: (1) Assess and collect monetary damages in accordance with this Agreement; (2) Terminate this Agreement; and/or, (3) Pursue any other legal or equitable remedy available under this Agreement or applicable law. 12.2 Alternative Remedies (A) No provision of this Agreement shall bar the right of either party to seek or obtain judicial relief from a violation of any provision of the Agreement or any rule, regulation, requirement or directive promulgated thereunder. Neither the existence of other remedies identified in this Agreement nor the exercise thereof shall be deemed to bar or otherwise limit the right of either party to recover monetary damages, as allowed under applicable law, or to seek and obtain judicial enforcement of obligations by means of specific performance, injunctive relief or mandate, or any other remedy at law or in equity. (B) The Town does not waive any right, immunity, limitation or protection otherwise available to the Town, its officers, officials, Boards, commissions, agents, or employees under any law, including without limitation Section 635A of the Cable Act. Comcast shall not have any monetary recourse against the Town, or its officers, officials, Board, commissions, agents or employees for any loss, costs, expenses or damages arising out of any provision of this Agreement or the enforcement thereof, subject to applicable law. 12.3 Liquidated Damages (A) The Town and Comcast recognize the delays, expense and unique difficulties involved in proving in a legal proceeding the actual loss suffered by the Town as a result of a violation by Comcast of this Agreement. Accordingly, instead of requiring such proof of actual loss, the Town and Comcast agree that Comcast shall pay to the Town the sums set forth in this Subsection. Such amounts are agreed by both parties to be a reasonable estimate of the actual damages the Town would suffer in the event of Comcast's violation. 12/18/2012 23 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC (B) In addition to any other remedy, the Town in its sole discretion may, after following the procedures as provided in this Section 12.1, charge to and collect from Comcast the following liquidated damages per day, for each day, or part thereof, the violation continues: (1) For failure to provide data, documents, reports or information or to cooperate with the Town during an application process or Cable System review or as otherwise provided herein: one hundred fifty dollars ($150). (2) For failure to make timely PEG Fee or Franchise Fee payments: two hundred fifty dollars ($250). (3) For failure to comply with any other provision of this Agreement or Customer Service Standards or the Vail Town Code: one hundred fifty dollars ($150). (C) Each violation shall be considered a separate violation for which separate liquidated damages can be imposed. In no event shall liquidated damages be imposed for a period greater than 120 days. (D) Comcast shall have thirty (30) days to pay the liquidated damages. If not so paid, the Town may draw on any bond or Letter of Credit. The Town shall give Comcast written notice of any such draw, and within seven (7) days of such notice, Comcast shall restore the bond or Letter of Credit to the amount required under this Agreement. 12.4 Revocation (A) The franchise provided by this Agreement may be revoked and all rights and privileges rescinded if a material breach of the Agreement is not cured, or in the event that: (1) Comcast attempts to evade any material provision of this Agreement or to practice any fraud or deceit upon the Town or Customers; (2) Comcast makes a material misrepresentation of fact in the negotiation of this Agreement; (3) Comcast abandons the Cable System, or terminates the Cable System's operations; (4) Comcast fails to restore service to the Cable System after three (3) consecutive days of an outage or interruption in service; except in the case of an emergency or during a force majeure occurrence, or when approval of such outage or interruption is obtained from the Town; or (5) Comcast becomes insolvent, unable or unwilling to pay its debts, or is adjudged bankrupt, there is an assignment for the benefit of Comcast's creditors, or all or part of Cable System is sold under an instrument to secure a debt and is not redeemed by Comcast within thirty (30) days from said sale. (B) Additionally, the franchise granted in this Agreement may be revoked one hundred twenty (120) days after the appointment of a receiver or trustee to conduct the business of Comcast, at the option of the Town and subject to applicable law, whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless directed otherwise by a court of competent jurisdiction. 12/18/2012 24 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC (C) If there is a foreclosure or other involuntary sale of the whole or any part of the plant, property and equipment of Comcast, the Town may serve notice of revocation on Comcast and to the purchaser at the sale, and the rights and privileges of Comcast under this Agreement shall be revoked thirty (30) days after service of such notice, unless: (1) The Town has approved the transfer of the Agreement, in accordance with the procedures set forth in this Agreement and as provided by law; and (2) The transferee has agreed to assume and be bound by all terms of this Agreement. 12.5 Purchase of the Cable System If at any time this Agreement lawfully terminates, the Town shall have the option to purchase the Cable System; provided that nothing in this Agreement shall limit or expand the Town's right of eminent domain under State law. SECTION 13. TRANSFER 13.1 Transfer of Ownership or Control (A) The Cable System and this Agreement shall not be sold, assigned, transferred, leased or disposed of, either in whole or in part, either by involuntary sale or by voluntary sale, merger or consolidation; nor shall title thereto, either legal or equitable, or any right, interest or property therein pass to or vest in any Person or entity without the prior written consent of the Town, which consent shall be by the Town Council, acting by ordinance or resolution. (B) Comcast shall promptly notify the Town of any actual or proposed change in control of Comcast. The word "control" as used herein is defined as an acquisition of 51% or greater ownership interest in Comcast. Such change of control of Comcast shall make this Agreement subject to cancellation unless and until the Town has consented in writing. (C) The parties to the transfer shall make a written request to the Town for its approval of a sale or transfer or change in control and shall furnish all information required by law. (D) In seeking the Town's consent to any transfer, the proposed transferee or controlling entity shall indicate whether it: (1) Has ever been convicted or held liable for acts involving deceit including any violation of federal, State or local law or regulations, or is currently under an indictment, investigation or complaint charging such acts; (2) Has ever had a judgment in an action for fraud, deceit, or misrepresentation entered against the proposed transferee by any court of competent jurisdiction; (3) Has pending any material legal claim, lawsuit, or administrative proceeding arising out of or involving a Cable System or the provision of Cable Services; (4) Is financially solvent, by submitting financial data including financial statements that are audited by a certified public accountant who may also be an officer of the transferee or controlling entity, along with any other data that is lawfully required; and (5) Has the financial, legal and technical capability to enable it to maintain and operate the Cable System for the remaining term of the Agreement. 12/18/2012 25 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC (E) The proposed transferee shall provide complete information regarding any potential impact of the transaction on Customer rates and service, as well as any other documentation reasonably related to the proposed transaction and consistent with applicable law which, in the reasonable discretion of the Town are necessary to understand the proposed transaction. (F) The Town shall act on the request within one hundred twenty (120) days of receipt of the FCC Form 394 application and all information expressly required by this Agreement and applicable law, provided it has received a complete application. Subject to the foregoing, if the Town fails to render a final decision on the request within one hundred twenty (120) days, such request shall be deemed granted unless the requesting party and the Town agree to an extension of time. (G) Within thirty (30) days of any transfer, Comcast shall file with the Town a copy of the deed, agreement, lease or other written instrument evidencing such transfer, certified correct by Comcast and the transferee, and the transferee shall file its written acceptance agreeing to be bound by all terms of this Agreement, subject to applicable law. In the event of a change in control in which Comcast is not replaced by another entity, Comcast will continue to be bound by all terms of the Agreement, subject to applicable law, and will not be required to file an additional written acceptance. The approval of any transfer shall not waive any rights of Town to subsequently enforce noncompliance issues relating to this Agreement. If a change of control involves an entity that was not an Affiliate prior to the contemplated transaction, the Town's consent shall be required for such change in control. (H) In reviewing a transfer request, the Town may inquire into the legal, technical and financial qualifications of the transferee, and Comcast shall assist the Town in so inquiring. The Town may condition said transfer upon such terms as it deems reasonably appropriate, consistent with applicable law and reasonably related to the qualifications of the prospective transferee to comply with this Agreement or the resolution of outstanding and unresolved issues of noncompliance with this Agreement by Comcast. (I) Notwithstanding anything to the contrary in this Subsection, the prior approval of the Town shall not be required for any sale, assignment or transfer of the Agreement or the Cable System to an intracompany entity controlling, controlled by or under the same common control as Comcast, provided that the proposed assignee or transferee shall show financial responsibility as may be determined necessary by the Town and shall agree in writing to comply with all provisions of the Agreement. Further, Comcast may pledge the assets of the Cable System for the purpose of financing without the consent of the Town; provided that such pledge of assets shall not mitigate Comcast's responsibilities to meet its obligations under this Agreement. SECTION 14. MISCELLANEOUS 14.1 Cumulative Rights Subject to applicable law, all rights and remedies given to the Town or retained by the Town in this Agreement shall be in addition to and cumulative with any and all other rights and remedies, existing or implied, now or hereafter available to the Town, at law or in equity, and such rights and remedies shall not be exclusive, but every right and remedy given by this Agreement or otherwise existing may be exercised as often and in such order as deemed expedient by the Town, and the exercise of one right or remedy shall not be deemed a waiver of the right to exercise at the same time or thereafter any other right or remedy. 12/18/2012 26 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC 14.2 Costs to be Borne by Comcast Comcast shall pay for all costs of publication of this Agreement, and any and all notices prior to any public meeting or hearing provided for pursuant to this Agreement in accordance with the Vail Town Code or Charter. 14.3 Binding Effect This Agreement shall be binding upon the parties hereto, their permitted successors, transferees and assigns. 14.4 Modification This Agreement may be modified only by written agreement between the parties. 14.5 Governing Law and Venue This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Colorado, the Cable Act, as amended, any applicable rules, regulations and orders of the FCC, as amended, and any other applicable local, State and federal laws, rules, and regulations. The venue for any dispute related to a violation of this Agreement shall be in an appropriate state court of competent jurisdiction in Eagle County, Colorado. 14.6 No Joint Venture Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the parties, and neither party is authorized to, nor shall either party act toward third persons or the public in any manner that would indicate any such relationship with the other. 14.7 Waiver The failure of either party at any time to require performance by the other of any provision hereof shall in no way affect the right of the other party hereafter to enforce the same. Nor shall the waiver by either party of any breach of any provision hereof be taken or held to be a waiver of any succeeding breach of such provision, or as a waiver of the provision itself or any other provision. 14.8 Severability If any provision of this Agreement is determined to be illegal, invalid or unconstitutional by any court or agency of competent jurisdiction, such determination shall have no effect on the validity of any other provision of this Agreement. 14.9 Force Majeure Comcast shall not be held in violation of this Agreement for any act caused by circumstances reasonably beyond the ability of Comcast to anticipate and control, including war, riots, civil disturbances, floods, severe adverse weather conditions or other natural catastrophes, labor stoppages or power outages exceeding back-up power supplies. 14.10 Entire Agreement This Agreement represents the entire understanding and agreement between the parties hereto with respect to the subject matter hereof and supersede all prior oral and written negotiations between the parties. 12/18/2012 27 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC 14.11 Notices Each party shall maintain and file with the other a local address for the service of notices by mail. All notices shall be sent to such respective address, and such notices shall be effective upon the date of mailing. On the Effective Date, the following are the addressed on file: Comcast: With a copy to: Comcast Comcast 8000 East Iliff Avenue 281 Metcalf Road, Suite 110 Denver, CO 80231 Avon, CO 81620 Attn: Government Affairs Attn: General Manager 12/18/2012 28 12/13/2012 Q:\USERS\VAIL\COMCAST\AGR\FRANCHISE FINAL-3.DOC The Town: Town of Vail 75 South Frontage Road Vail, CO 81657 Attn: Town Manager IN WITNESS WHEREOF, the parties have executed this Agreement on the date first set forth above. TOWN OF VAIL, COLORADO _______________________________ Andy Daly, Mayor ATTEST: __________________________________ Lorelei Donaldson, Town Clerk APPROVED AS TO FORM: __________________________________ J. Matthew Mire, Town Attorney COMCAST OF COLORADO VI, LLC __________________________________ By: _______________________________ Its: _______________________________ STATE OF COLORADO ) ) ss. COUNTY OF _________________ ) The foregoing instrument was subscribed, sworn to and acknowledged before me this ____ day of __________________, 2012, by ______________________ as _______________ of Comcast of Colorado VI LLC. My commission expires: _______________ (S E A L) ____________________________________ Notary Public 12/18/2012 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: December 18, 2012 ITEM/TOPIC: Appointment of Newpaper of Record for 2013. PRESENTER(S): Lorelei Donaldson/Pam Brandmeyer ACTION REQUESTED OF COUNCIL: Appoint the Vail Daily as the Town of Vail's newspaper of record for 2013. BACKGROUND: Each year the town has to appoint a newpaper of record for publishing of notices per state statute. The Vail Daily is currently the only daily newspaper that complies with state statute regulations for the Town of Vail notices. STAFF RECOMMENDATION: Appoint the Vail Daily as the town's newspaper of record for 2013. ATTACHMENTS: Vail Daily Proposal Letter 2013 Vail Daily 2013 Bid Chart 12/18/2012 December 11, 2012 Lorelei Donaldson Town of Vail Town Clerk RE: Town of Vail Publication Bid for the year 2013 Dear Lorelei: Thank you for the opportunity to provide a bid for the Town of Vail local newspaper advertising programs. We are responding to the 2013 bid request with a proposed price per column inch for legal, classified ads and display advertising at $4.65 pci. We are able to confirm that certification of publication notices and invoicing procedures to the Town of Vail will be processed in timely manner. Sincerely, Cathy Ethington Advertising Director Vail Daily cethington@vaildaily.com 970.748.2958 12/18/2012 2013 Vail Daily TOV Bid Newspaper Classified Ads/Legal Publications Display Ads Vail Daily 2013 $4.65 per column inch (*5 column format) Includes internet e-edition $4.65 per column inch Sunday – Monday (*6 column format) Includes internet e-edition Vail Daily 2012 $4.18 per column inch (*5 column format) 10% increase from 2011, aligning with 2007 rates. $4.18 per column inch Sunday – Monday (*6 column format) 10% increase from 2011, aligning with 2007 rates. Vail Daily 2011 $3.80 per column inch (*5 column format) Holding flat from 2010 $3.80 per column inch Sunday – Monday (*6 column format) 5% premium was removed from Fri/Sat papers. Rate was increased 8% from 2010 Mon-Thursday pricing and 3% for Fri/Sat. Vail Daily 2010 (SAME PRICING AS 2005) $3.80 per column inch (*5 column format) APPROX. 21% SAVINGS $3.35 per column inch Sunday – Thursday (*5 column format) $3.52 per column inch (Friday-Saturday) (*6 column format) Vail Daily 2009 $4.65 per column inch 5% increase from last year Included internet e-edition $4.08 Sun-Thurs $4.33 Fri-Sat Included internet e-edition Vail Daily 2008 $4.43 per column inch 6% increase from last year Included internet e-edition $3.89 Sun-Thurs $4.12 Fri-Sat Included internet e-edition Vail Daily 2007 $4.18 per column inch 5% increase from last year Includes internet e-edition $3.67 Sunday-Thursday $3.89 Friday-Saturday Includes internet e-edition Vail Daily 2006 $3.99 per column inch (*5 column format) 5% increase from last year $3.50 Sun-Thurs $3.71 Fri – Sat. (*6 column format) Vail Daily 2005 $3.80 per column inch (*5 column format) $3.35 per column inch Sunday – Thursday (*5 column format) $3.52 per column inch (Friday-Saturday) (*6 column format) Vail Daily 2004 $3.60 per column inch (Legals are based on a 5-column format which is 1.867" wide and 1" in depth) $3.20 per column inch (Display advertising, column inch rate is based on a 6 column format which is approx. 1.53” wide by 1” in depth) 12/18/2012 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: December 18, 2012 ITEM/TOPIC: Adjournment (8:10 p.m.) 12/18/2012