HomeMy WebLinkAbout2019-08-06 Agenda and Supporting Documentation Town Council Evening Meeting Agenda
VAIL TOW N COUNCIL REGULAR MEETING
Evening Agenda
Town Council Chambers
6:00 PM, August 6, 2019
Notes:
Times of items are approximate, subject to change, and cannot be relied upon to determine what time Council will
consider an item.
Public comment will be taken on each agenda item.
Citizen participation offers an opportunity for citizens to express opinions or ask questions regarding town
services, policies or other matters of community concern, and any items that are not on the agenda. Please
attempt to keep comments to three minutes; time limits established are to provide efficiency in the conduct of the
meeting and to allow equal opportunity for everyone wishing to speak.
1.Citizen Participation (10 min.)
2.Consent Agenda (5 min.)
2.1.Resolution No. 31, Series of 2019, A Resolution Approving an
Intergovernmental Agreement (the "IGA") Between the Town of Vail and
Eagle River Water and Sanitation District Regarding the Paving of the Red
Sandstone Elementary School Access Road; and Setting Forth Details in
Regard Thereto.
Background: The Town of Vail is planning to resurface a portion of the Red
Sandstone Elementary School access road. The Eagle River Water and
Sanitation District has installed a new water main across the access road is
required to resurface the access road in their construction area. The Town
and District staff recommend combining paving efforts to minimize impact to
the site and provide a better quality final product. Work is to be completed
prior to the start of the school district fall term. The District will reimburse
the Town for the described work.
Staff Recommendation: Staff recommends approving Resolution No. 31,
Series of 2019, A Resolution Approving an Intergovernmental Agreement
(the "IGA") Between the Town of Vail and Eagle River Water and Sanitation
District Regarding the Paving of the Red Sandstone Elementary School
Access Road; and Setting Forth Details in Regard Thereto.
2.2.Resolution No. 32, Series of 2019, A Resolution Approving an
Intergovernmental Agreement (the "IGA") Between the Town of Vail and
Eagle River Water and Sanitation District Regarding the Construction of
Sanitary Sewer Main at Bridge Road; and Setting Forth Details in Regard
Thereto.
Background: The Town of Vail is currently reconstructing the Bridge Road
structure over Gore Creek and the Eagle River Water and Sanitation
District wishes to relocate a sanitary sewer manhole and replace
approximately 58' of sanitary sewer main in the vicinity of the Town's
project. The proposed work does not impact the Town's construction
August 6, 2019 - Page 1 of 109
schedule. The District will reimburse the Town for the described work.
Staff Recommendation: Staff recommends approving Resolution No. 32,
Series of 2019, A Resolution Approving an Intergovernmental Agreement
(the "IGA") Between the Town of Vail and Eagle River Water and
Sanitation District Regarding the Construction of Sanitary Sewer Main at
Bridge Road; and Setting Forth Details in Regard Thereto.
2.3.Resolution No. 33, Series of 2019, a Resolution Approving an
Intergovernmental Contract Between the Town of Vail and the State of
Colorado Department of Public Health and Environment Water Quality
Control Division.
Background: Untreated stormwater has been identified in the Gore Creek
Strategic Action plan as one of three main causes of Gore Creek's
impairment. To address this problem town environmental staff and engineers
have identified a prioritized list of stormwater retrofits and upgrades.
Projects have already been completed or are nearly complete at the town
snow dump, public works facility, East Vail interchange, Stephen's Park and
Ford Park soccer fields. The next high priority project is on Westhaven
Drive. This project is designed to filter and treat stormwater from the Hotel
Talisa complex, Westhaven Drive and portions of I-70 and the South
Frontage Road. In addition to the $167,589 in state funds, Hotel Talisa has
contributed $20,000 towards this project. Matching funds from the town are
required and budgeted.
Staff Recommendation: Staff recommends the approval of Resolution 33,
Series of 2019, a Resolution Approving an Intergovernmental Contract
Between the Town of Vail and the State of Colorado Department of Public
Health and Environment Water Quality Control Division.
2.4.Contract with Conservation by Design for Gore Valley Trail Interpretive
Installation
Presenter(s): Peter Wadden, Watershed Education Coordinator
Background: On May 20, 2018, Town of Vail entered into a contract with the
interpretive design firm Conservation by Design for the development of the
Gore Valley Trail Interpretive Plan. Town Council adopted the interpretive
plan on April 2, 2019. The next step in enacting the Plan is to design a
watershed walk-over map, 12 story stations and two picnic table tops as well
as fabricate the story stations and table tops (Attachment A).
Staff Recommendation: Staff recommends Council authorize the acting
town manager to enter into a contract with Conservation by Design.
2.5.Request approval from the Town Council to purchase up to 7 battery electric
40' low floor buses from Gillig Inc. per the bus replacement plan.
Background: Request approval from the Town Council to purchase up to 7
battery electric buses per the bus replacement plan. The TOV owns and
operates 32 transit buses, the buses are on a 12 year replacement plan,
which is consistent with FTA requirements that a transit bus be designed
and operate for a minimum of 12 years. The two oldest buses are not on the
replacement schedule and are used as backup buses. The bus replacement
plan has seven buses to be replaced in 2020 that will be battery electric.
After demoing many different vendors of battery electric buses our team
would recommend that we purchase Gillig battery electric buses.
Staff Recommendation: Authorize the Town Manager to approve the
purchase of up to 7, 40’ Gillig battery electric lowfloor buses and order the
seven buses this year to take delivery in 2020. These funds are in the 5
year capital plan in 2020.
August 6, 2019 - Page 2 of 109
2.6.Vail Valley Drive at Vail Trails Sidewalk Extension Contract Award
Background: In cooperation with the Vail Trails Chalet's the Town of Vail will
construct a sidewalk along Vail Valley Drive in front of the Vail Trails
Chalet's. This is a critical missing piece of sidewalk along Vail Valley Drive
and will provide safer access along Vail Valley Drive and to Vail Trails.
Staff Recommendation: Staff recommends the Town Council directs the
Town Manager to enter into a contract with Icon, Inc. in the amount of
$92,402.60, in a form approved by the Town Attorney; and to enter into a
reimbursement agreement with Vail Trail’s in the amount of $20,403.40 in a
form approved by the Town Attorney.
3.Town Manager Report (5 min.)
3.1.Red Sandstone Parking Structure Update
Presenter(s): Greg Hall, Public Works Director
4.Presentations / Discussion
4.1.Civic Area Plan Update 90 min.
Presenter(s): Matt Gennett, Community Development Director
Action Requested of Council: Staff asks Council to review the presentation
and provide direction to the project team.
Background: Following up from our last update to Council on July 16, 2019,
this presentation will focus on the remaining timeline and work program for
the plan, a description of how the third engagement window will rollout and
function, and the eleven key elements of the plan.
5.Adjournment
5.1.Adjournment 7:50 p.m. (estmiate)
Meeting agendas and materials can be accessed prior to meeting day on the Town of Vail website
www.vailgov.com. All town council meetings will be streamed live by High Five Access Media and available
for public viewing as the meeting is happening. The meeting videos are also posted to High Five Access Media
website the week following meeting day, www.highfivemedia.org.
Please call 970-479-2136 for additional information. Sign language interpretation is available upon request with
48 hour notification dial 711.
August 6, 2019 - Page 3 of 109
VAIL TOWN COUNCIL AGENDA MEMO
ITEM/TOPIC: Resolution No. 31, Series of 2019, A Resolution Approving an Intergovernmental
Agreement (the "IGA") Between the Town of Vail and Eagle River Water and Sanitation District
Regarding the Paving of the Red Sandstone Elementary School Access Road; and Setting Forth
Details in Regard Thereto.
BACKGROUND: The Town of Vail is planning to resurface a portion of the Red Sandstone
Elementary School access road. The Eagle River Water and Sanitation District has installed a
new water main across the access road is required to resurface the access road in their
construction area. The Town and District staff recommend combining paving efforts to minimize
impact to the site and provide a better quality final product. Work is to be completed prior to the
start of the school district fall term. The District will reimburse the Town for the described work.
STAFF RECOMMENDATION: Staff recommends approving Resolution No. 31, Series of
2019, A Resolution Approving an Intergovernmental Agreement (the "IGA") Between the Town of
Vail and Eagle River Water and Sanitation District Regarding the Paving of the Red Sandstone
Elementary School Access Road; and Setting Forth Details in Regard Thereto.
ATTACHMENTS:
Description
Resolution 31, Series 2019
August 6, 2019 - Page 4 of 109
Resolution No. 31, Series of 2019 – RSSES
RESOLUTION NO. 31 Series of 2019
A RESOLUTION APPROVING AN INTERGOVERNMENTAL BETWEEN THE
TOWN OF VAIL AND THE EAGLE RIVER WATER AND SANITATION
DISTRICT REGARDING THE PAVING OF THE RED SANDSTONE ELEMENTARY SCHOOL ACCESS ROAD WHEREAS, the Eagle River Water and Sanitation District (the “District”) desires to
install a water main along across the Red Sandstone Elementary School access road and the
Town desires to resurface a portion of the access;
WHEREAS, the Town and the District wish to combine their construction efforts to achieve coordination, cost sharing and cost savings benefits, minimize disruption to the neighborhood and to allow the installation of infrastructure projects to be phased in logical
sequence; and
WHEREAS, the parties wish to enter into an Intergovernmental Agreement (the “IGA”) to set forth the terms of the combined construction efforts of the two agencies.
NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF VAIL, COLORADO THAT: Section 1. The Town Council hereby approves the IGA and authorizes the Town
Manager to enter into the IGA with ERWSD on behalf of the Town 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 6th day of August, 2019.
_______ Dave Chapin Town Mayor ATTEST: ______ Tammy Nagel Town Clerk
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INTERGOVERNMENTAL AGREEMENT
FOR
BRIDGE ROAD SANITARY SEWER MAIN RECONSTRUCTION
THIS AGREEMENT is made and entered into this ______ day of ____________
2019, by EAGLE RIVER WATER AND SANITATION DISTRICT, a quasi-
municipal corporation and political subdivision of the State of Colorado, (“District”) and the TOWN OF VAIL, a political subdivision of the State of Colorado (“Town”). Collectively these entities are also referred to as the “Parties”.
RECITALS
WHEREAS, Eagle River Water and Sanitation District is a water and sanitation district organized and existing under the Colorado Special District Act; and
WHEREAS, the District is empowered to provide water and sewer service to its customers and constituents within and without its boundaries, within Eagle County, Colorado, on such terms and conditions as the District may decide; and
WHEREAS, the Town of Vail is a Colorado municipality organized and operated pursuant to its home rule charter and Colorado law; and
WHEREAS, Section 18(2)(a) and (b), Article XIV of the Colorado Constitution,
Section 29-1-203, C.R.S., and Section 32-1-1001, C.R.S., provide for the ability of the
Parties to enter into contracts and agreements with one another to provide
intergovernmental services and facilities, when so authorized by their governing bodies;
and
WHEREAS, the Constitution and statutes of the State of Colorado permit and
encourage agreements between political subdivisions of the State, in order that the
inhabitants of such political subdivisions may thereby secure high quality governmental
services; and
WHEREAS, it is recognized by the Parties, that the public health, safety and welfare of their inhabitants is best served by providing high quality water and sewer services; and
WHEREAS, the District wishes to install a water main across the Red Sandstone Elementary School access road (the “District Project”); and
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WHEREAS, the Town wishes to resurface a portion of the Red Sandstone
Elementary School access road (the “Town Project”); and
WHEREAS, the Parties wish to combine their construction efforts to achieve cost
sharing and cost savings benefits, minimize disruption to the neighborhood and to allow
the installation of infrastructure projects to be phased in logical sequence; and
WHEREAS, the Parties desire for the Town Project and the District Project to be administered, constructed and installed, to the extent provided for herein, as one project (collectively, the “Project”); and
WHEREAS, each of the Parties hereto desires to work together to authorize and accomplish the construction of the Project; and
WHEREAS, each of the Parties hereto has determined it to be in the best interests of their respective taxpayers, residents, property owners, and constituents to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual performance of the
covenants, agreements, and stipulations contained herein, and for other good and valuable
consideration, the Parties hereto agree as follows:
1. Cooperation. The Parties agree to cooperate in the planning, design,
construction, inspection, cost and expense sharing, administration and
warranty phases of the Project referenced in this Agreement and to
cooperate and facilitate the combined efforts including, but not limited to
the execution of any additional agreements, easements, and rights-of-way
necessary to implement the purposes of this Agreement.
2. Project Management: The District will provide a construction management
representative (“District Construction Manager”) to coordinate the construction work for the District Project, provide clarifications to the contractor for the Project (the “Project Contractor”) and review and approve proposed field changes, cost changes and time changes in a timely manner. With respect to communications with Project Contractor, suppliers and consultants, the District Construction Manager shall not have authority to bind, or otherwise affect the obligations of, the Town. 3. Construction Inspection. The District Construction Manager will be responsible for construction inspection of the District Project.
4. Construction Costs. The Town agrees to pay all costs to the Project
Contractor for the Project. The Town will invoice the District for costs
incurred for the District Project based on work accomplished per the
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Project Contractor’s invoices and the value of the work listed in
Attachment A. The District will reimburse the Town for the invoiced work
within 30 days. The District represents that it has appropriated sufficient
funds to pay in full its obligations hereunder.
5. Change Orders. Any change orders that arise during construction related to the District Project will be negotiated between the District and the Project Contractor. Neither the District nor its contractor will commence any work outside of the contracted items for which it expects reimbursement from the Town without the prior approval of the Town’s Construction Manager.
6. Enforcement. The Parties agree that this Agreement may be enforced in law or in equity for specific performance, injunctive, or other appropriate relief, including damages, as may be available according to the laws and statutes of the State of Colorado. It is specifically understood that by executing this Agreement each Party commits itself to perform pursuant to
the terms contained herein, and that any breach hereof which results in any
recoverable damages shall not cause the termination of any obligations
created by this Agreement unless such termination is declared by the Party
not in breach hereof.
7. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Colorado.
8. Venue. Venue for the trial of any action arising out of any dispute hereunder shall be in the District Court for Eagle County, State of Colorado, pursuant to the appropriate rules of civil procedures. 9. Captions. The headings and sections and paragraphs are included only for convenience and reference. If any conflict between any heading and the text of this Agreement exists, the text shall control. 10. Binding Agreement upon Successors and Assigns. This Agreement and the rights and obligations created hereby shall be binding upon and inure to the
benefit of the Parties hereto and their respective successors and assigns.
11. Interested Persons. Nothing herein expressed or implied is intended or
should be construed to confer or give to any person or corporation or
governmental entity other than the District and the Town, any right, remedy
or claim under or by reason hereof or by reason of any covenant or
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condition herein contained, nor limit in any way the powers and
responsibilities of the Town, the District, or any other entity not a party
hereto.
12. Notices. All notices, requests, demands, consents and other
communications hereunder shall be transmitted in writing and shall be deemed to have been duly given when hand-delivered or sent by certified, United States mail, postage prepaid, with return receipt requested, addressed to the parties as follows: Parry McKenny, Town Manager Town of Vail 75 South Frontage Road Vail, Colorado 81657
With a Copy to:
Matt Mire, Town Attorney Town of Vail
75 South Frontage Road
Vail, Colorado 81657
Eagle River Water and Sanitation District
Linn Brooks, General Manager
846 Forest Road
Vail, Colorado 81657
With a Copy to:
James P. Collins, Esq. Collins Cockrel & Cole 390 Union Boulevard, Suite 400 Denver, Colorado 80228-1556
Either party may change the address at which it receives written notice, by notifying the other party in writing in the manner provided herein.
13. Severability. If any portion of this Agreement is held invalid or unenforceable for any reason by a court of competent jurisdiction as to either Party or as to both Parties, such portion shall be deemed severable
and its invalidity or its unenforceability shall not affect the remaining
provisions; such remaining provisions shall be fully severable and this
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Agreement shall be construed and enforced as if such invalid provisions
had never been inserted into this Agreement.
14. Waiver. The waiver of any breach of any of the provisions of this
Agreement, by any party, shall not constitute a continuing waiver of any
subsequent breach by that party, either of the same, or of another provision of this Agreement. 15. Amendment. This Agreement may be amended, modified, changed, or terminated in whole or in part only by written agreement duly authorized and executed by the Parties hereto. 16. Duplicate Originals. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together, shall constitute one and the same agreement. 17. Separate Entity Status. In no event shall either party, its employees or its
representatives, be considered or authorized to act as employees or agents
of the other party.
18. Indemnification. Each party, to the extent permitted by law and subject to
all of the immunities, defenses and protections afforded to that party by the
Colorado Governmental Immunity Act, shall indemnify and hold harmless,
the other party, its officers, directors, employees and agents from and
against any claims including attorneys fees, arising out of the negligence of the officers, employees or agents of the indemnifying party and rising out of the performance of services under this Agreement. 19. Force Majeure. No party shall be liable for any failure to perform as required by this Agreement to the extent such failure to perform is caused by any reason beyond the control of that party or by reason of any of the following occurrences, whether or not caused by such party: strikes, labor disturbances or labor disputes of any character, accidents, riots, civil disorders or commotions, war, acts of aggression, floods, earthquakes, acts of God, explosion or similar occurrences; provided, such party shall
exercise its best efforts to provide the best possible alternative performance
and to prevent the foregoing occurrence from obstructing full performance.
Such occurrences shall not terminate this Agreement and shall not affect
this Agreement except as provided in this Section.
20. Entire Agreement of the Parties. This Agreement represents the full and
complete understanding of Parties, and supersedes any prior agreements,
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discussions, negotiations, representations or understandings of Parties with
respect to the subject matter contained herein.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
effective as of the date and year first above written.
EAGLE RIVER WATER AND
SANITATION DISTRICT
By:
Linn Brooks, General Manager
Attest:
Leslie Isom, Administration Manager
TOWN OF VAIL
By:
Patty McKenny, Town Manager
Attest:
Tammy Nagel, Town Clerk
APPROVED AS TO FORM
Matt Mire, Town Attorney
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ATTACHMENT A
EXHIBIT A
Red Sandstone Elementary School Access Road Resurfacing
Scope of Work
Work is to include asphalt milling 2” depth and asphalt paving 2” depth.
ITEM Unit Est Qty Unit Price Total
Asphalt Milling SF 2,500 $1.20 $3,000.00
Asphalt Paving TON 32 $125.00 $4,000.00
TOTAL $7,000.00
August 6, 2019 - Page 13 of 109
VAIL TOWN COUNCIL AGENDA MEMO
ITEM/TOPIC: Resolution No. 32, Series of 2019, A Resolution Approving an Intergovernmental
Agreement (the "IGA") Between the Town of Vail and Eagle River Water and Sanitation District
Regarding the Construction of Sanitary Sewer Main at Bridge Road; and Setting Forth Details in
Regard Thereto.
BACKGROUND: The Town of Vail is currently reconstructing the Bridge Road structure over
Gore Creek and the Eagle River Water and Sanitation District wishes to relocate a sanitary sewer
manhole and replace approximately 58' of sanitary sewer main in the vicinity of the Town's project.
The proposed work does not impact the Town's construction schedule. The District will reimburse
the Town for the described work.
STAFF RECOMMENDATION: Staff recommends approving Resolution No. 32, Series of
2019, A Resolution Approving an Intergovernmental Agreement (the "IGA") Between the Town of
Vail and Eagle River Water and Sanitation District Regarding the Construction of Sanitary Sewer
Main at Bridge Road; and Setting Forth Details in Regard Thereto.
ATTACHMENTS:
Description
Resolution 32, Series 2019
August 6, 2019 - Page 14 of 109
Resolution No. 32, Series of 2019, IGA BRIDGE ROAD
RESOLUTION NO. 32 Series of 2019
A RESOLUTION APPROVING AN INTERGOVERNMENTAL AGREEMENT
BETWEEN THE TOWN OF VAIL AND EAGLE RIVER WATER AND
SANITATION DISTRICT REGARDING THE CONSTRUCTION OF SANITARY SEWER MAIN AT BRIDGE ROAD
WHEREAS, the Eagle River Water and Sanitation District (the “District”) desires to install a new sanitary sewer main along the Gore Creek in the vicinity of Bridge Road, and the Town desires to reconstruct the Bridge Road structure over Gore Creek;
WHEREAS, the Town and the District wish to combine their construction efforts to
achieve coordination, cost sharing and cost savings benefits, minimize disruption to the neighborhood and to allow the installation of infrastructure projects to be phased in logical sequence; and
WHEREAS, the parties wish to enter into an Intergovernmental Agreement (the “IGA”) to set forth the terms of the combined construction efforts of the two agencies.
NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF VAIL, COLORADO THAT: Section 1. The Town Council hereby approves the IGA and authorizes the Town
Manager to enter into the IGA with ERWSD on behalf of the Town 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 6th day of August, 2019.
_________ Dave Chapin Town Mayor ATTEST: ______ Tammy Nagel Town Clerk
August 6, 2019 - Page 15 of 109
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INTERGOVERNMENTAL AGREEMENT
FOR
BRIDGE ROAD SANITARY SEWER MAIN RECONSTRUCTION
THIS AGREEMENT is made and entered into this ______ day of ____________
2019, by EAGLE RIVER WATER AND SANITATION DISTRICT, a quasi-
municipal corporation and political subdivision of the State of Colorado, (“District”) and the TOWN OF VAIL, a political subdivision of the State of Colorado (“Town”). Collectively these entities are also referred to as the “Parties”.
RECITALS
WHEREAS, Eagle River Water and Sanitation District is a water and sanitation district organized and existing under the Colorado Special District Act; and
WHEREAS, the District is empowered to provide water and sewer service to its customers and constituents within and without its boundaries, within Eagle County, Colorado, on such terms and conditions as the District may decide; and
WHEREAS, the Town of Vail is a Colorado municipality organized and operated pursuant to its home rule charter and Colorado law; and
WHEREAS, Section 18(2)(a) and (b), Article XIV of the Colorado Constitution,
Section 29-1-203, C.R.S., and Section 32-1-1001, C.R.S., provide for the ability of the
Parties to enter into contracts and agreements with one another to provide
intergovernmental services and facilities, when so authorized by their governing bodies;
and
WHEREAS, the Constitution and statutes of the State of Colorado permit and
encourage agreements between political subdivisions of the State, in order that the
inhabitants of such political subdivisions may thereby secure high quality governmental
services; and
WHEREAS, it is recognized by the Parties, that the public health, safety and welfare of their inhabitants is best served by providing high quality water and sewer services; and
WHEREAS, the District wishes to relocate sanitary sewer manhole 380 and replace approximately 58 linear feet of sanitary sewer main within the Bridge Road structure over Gore Creek (the “District Project”); and
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WHEREAS, the Town is currently reconstructing the Bridge Road structure over
Gore Creek (the “Town Project”); and
WHEREAS, the Parties wish to combine their construction efforts to achieve cost
sharing and cost savings benefits, minimize disruption to the neighborhood and to allow
the installation of infrastructure projects to be phased in logical sequence; and
WHEREAS, the Parties desire for the Town Project and the District Project to be administered, constructed and installed, to the extent provided for herein, as one project (collectively, the “Project”); and
WHEREAS, each of the Parties hereto desires to work together to authorize and accomplish the construction of the Project; and
WHEREAS, each of the Parties hereto has determined it to be in the best interests of their respective taxpayers, residents, property owners, and constituents to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual performance of the
covenants, agreements, and stipulations contained herein, and for other good and valuable
consideration, the Parties hereto agree as follows:
1. Cooperation. The Parties agree to cooperate in the planning, design,
construction, inspection, cost and expense sharing, administration and
warranty phases of the Project referenced in this Agreement and to
cooperate and facilitate the combined efforts including, but not limited to
the execution of any additional agreements, easements, and rights-of-way
necessary to implement the purposes of this Agreement.
2. Project Management: The District will provide a construction management
representative (“District Construction Manager”) to coordinate the construction work for the District Project, provide clarifications to the contractor for the Project (the “Project Contractor”) and review and approve proposed field changes, cost changes and time changes in a timely manner. With respect to communications with Project Contractor, suppliers and consultants, the District Construction Manager shall not have authority to bind, or otherwise affect the obligations of, the Town. 3. Construction Inspection. The District Construction Manager will be responsible for construction inspection of the District Project.
4. Construction Costs. The Town agrees to pay all costs to the Project
Contractor for the Project. The Town will invoice the District for costs
incurred for the District Project based on work accomplished per the
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Project Contractor’s invoices and the value of the work listed in
Attachment A. The District will reimburse the Town for the invoiced work
within 30 days. The District represents that it has appropriated sufficient
funds to pay in full its obligations hereunder.
5. Change Orders. Any change orders that arise during construction related to the District Project will be negotiated between the District and the Project Contractor. Neither the District nor its contractor will commence any work outside of the contracted items for which it expects reimbursement from the Town without the prior approval of the Town’s Construction Manager.
6. Bill of Sale. The Town will provide the District with a Bill of Sale for the District Project, per the District’s Rules and Regulations.
7. Enforcement. The Parties agree that this Agreement may be enforced in law or in equity for specific performance, injunctive, or other appropriate relief, including damages, as may be available according to the laws and
statutes of the State of Colorado. It is specifically understood that by
executing this Agreement each Party commits itself to perform pursuant to
the terms contained herein, and that any breach hereof which results in any
recoverable damages shall not cause the termination of any obligations
created by this Agreement unless such termination is declared by the Party
not in breach hereof.
8. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Colorado. 9. Venue. Venue for the trial of any action arising out of any dispute hereunder shall be in the District Court for Eagle County, State of Colorado, pursuant to the appropriate rules of civil procedures. 10. Captions. The headings and sections and paragraphs are included only for convenience and reference. If any conflict between any heading and the text of this Agreement exists, the text shall control.
11. Binding Agreement upon Successors and Assigns. This Agreement and the
rights and obligations created hereby shall be binding upon and inure to the
benefit of the Parties hereto and their respective successors and assigns.
12. Interested Persons. Nothing herein expressed or implied is intended or
should be construed to confer or give to any person or corporation or
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governmental entity other than the District and the Town, any right, remedy
or claim under or by reason hereof or by reason of any covenant or
condition herein contained, nor limit in any way the powers and
responsibilities of the Town, the District, or any other entity not a party
hereto.
13. Notices. All notices, requests, demands, consents and other communications hereunder shall be transmitted in writing and shall be deemed to have been duly given when hand-delivered or sent by certified, United States mail, postage prepaid, with return receipt requested, addressed to the parties as follows: Parry McKenny, Town Manager Town of Vail 75 South Frontage Road Vail, Colorado 81657
With a Copy to:
Matt Mire, Town Attorney
Town of Vail
75 South Frontage Road
Vail, Colorado 81657
Eagle River Water and Sanitation District
Linn Brooks, General Manager
846 Forest Road
Vail, Colorado 81657
With a Copy to:
James P. Collins, Esq. Collins Cockrel & Cole 390 Union Boulevard, Suite 400 Denver, Colorado 80228-1556
Either party may change the address at which it receives written notice, by notifying the other party in writing in the manner provided herein.
14. Severability. If any portion of this Agreement is held invalid or
unenforceable for any reason by a court of competent jurisdiction as to
either Party or as to both Parties, such portion shall be deemed severable
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and its invalidity or its unenforceability shall not affect the remaining
provisions; such remaining provisions shall be fully severable and this
Agreement shall be construed and enforced as if such invalid provisions
had never been inserted into this Agreement.
15. Waiver. The waiver of any breach of any of the provisions of this Agreement, by any party, shall not constitute a continuing waiver of any subsequent breach by that party, either of the same, or of another provision of this Agreement. 16. Amendment. This Agreement may be amended, modified, changed, or terminated in whole or in part only by written agreement duly authorized and executed by the Parties hereto. 17. Duplicate Originals. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together, shall constitute one and the same agreement.
18. Separate Entity Status. In no event shall either party, its employees or its
representatives, be considered or authorized to act as employees or agents
of the other party.
19. Indemnification. Each party, to the extent permitted by law and subject to
all of the immunities, defenses and protections afforded to that party by the
Colorado Governmental Immunity Act, shall indemnify and hold harmless, the other party, its officers, directors, employees and agents from and against any claims including attorneys fees, arising out of the negligence of the officers, employees or agents of the indemnifying party and rising out of the performance of services under this Agreement. 20. Force Majeure. No party shall be liable for any failure to perform as required by this Agreement to the extent such failure to perform is caused by any reason beyond the control of that party or by reason of any of the following occurrences, whether or not caused by such party: strikes, labor disturbances or labor disputes of any character, accidents, riots, civil
disorders or commotions, war, acts of aggression, floods, earthquakes, acts
of God, explosion or similar occurrences; provided, such party shall
exercise its best efforts to provide the best possible alternative performance
and to prevent the foregoing occurrence from obstructing full performance.
Such occurrences shall not terminate this Agreement and shall not affect
this Agreement except as provided in this Section.
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{00701900.DOCX / 3 } 6
21. Entire Agreement of the Parties. This Agreement represents the full and
complete understanding of Parties, and supersedes any prior agreements,
discussions, negotiations, representations or understandings of Parties with
respect to the subject matter contained herein.
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{00701900.DOCX / 3 } 7
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
effective as of the date and year first above written.
EAGLE RIVER WATER AND
SANITATION DISTRICT
By:
Linn Brooks, General Manager
Attest:
Leslie Isom, Administration Manager
TOWN OF VAIL
By:
Patty McKenny, Town Manager
Attest:
Tammy Nagel, Town Clerk
APPROVED AS TO FORM
Matt Mire, Town Attorney
August 6, 2019 - Page 22 of 109
{00701900.DOCX / 3 }
ATTACHMENT A
EXHIBIT A
Bridge Road Bridge Replacement
BRO M306-007 (20095)
Sanitary Sewer Replacement
Scope of Work
Work is to include removal of existing sanitary sewer manhole 380, install new sanitary sewer manhole
approximately 45 LF west of MH380, install approximately 58 LF of 10” C900 pvc sanitary sewer main
between the new manhole and MH400 including bypass pumping.
ITEM Unit Qty Unit Price Totla
Remove Manhole Ea 1 $35,000.00 $35,000.00
Install Manhole Ea 1 $12,000.00 $12,000.00
10” C900 PVC LF 58 $200.00 $11,600.00
TOTAL $58,600.00
August 6, 2019 - Page 23 of 109
VAIL TOWN COUNCIL AGENDA MEMO
ITEM/TOPIC: Resolution No. 33, Series of 2019, a Resolution Approving an Intergovernmental
Contract Between the Town of Vail and the State of Colorado Department of Public Health and
Environment Water Quality Control Division.
BACKGROUND: Untreated stormwater has been identified in the Gore Creek Strategic Action
plan as one of three main causes of Gore Creek's impairment. To address this problem town
environmental staff and engineers have identified a prioritized list of stormwater retrofits and
upgrades. Projects have already been completed or are nearly complete at the town snow dump,
public works facility, East Vail interchange, Stephen's Park and Ford Park soccer fields. The next
high priority project is on Westhaven Drive. This project is designed to filter and treat stormwater
from the Hotel Talisa complex, Westhaven Drive and portions of I-70 and the South Frontage
Road. In addition to the $167,589 in state funds, Hotel Talisa has contributed $20,000 towards this
project. Matching funds from the town are required and budgeted.
STAFF RECOMMENDATION: Staff recommends the approval of Resolution 33, Series of
2019, a Resolution Approving an Intergovernmental Contract Between the Town of Vail and the
State of Colorado Department of Public Health and Environment Water Quality Control Division.
ATTACHMENTS:
Description
Resolution No. 33 Series of 2019
August 6, 2019 - Page 24 of 109
Resolution No. 33, Series 2019 – CDPHE
Resolution No. 33 Series of 2019
A RESOLUTION APPROVING AN INTERGOVERNMENTAL CONTRACT
BETWEEN THE TOWN OF VAIL AND THE STATE OF COLORADO
DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT WATER QUALITY CONTROL DIVISION WHEREAS, untreated stormwater has been identified in the Gore Creek Strategic Action Plan as a main cause of the impairment to Gore Creek; and
WHEREAS, the Colorado Department of Public Health and Environment (the
“CDPHE”) has awarded the Town a grant of $167,589 for stormwater filtration improvements and upgrades on Westhaven Drive, subject to the terms if an Intergovernmental Contract (the “IGA”).
NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF VAIL, COLORADO THAT: Section 1. The Council hereby approves the IGA and authorizes the Town Manager
to enter into the IGA with the CDPHE on behalf of the Town 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 6th day of August, 2019.
_________ Dave Chapin Town Mayor ATTEST: ____ Tammy Nagel Town Clerk
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Intergovernmental Template Ver 22.4.19 Page 1 of 1
DEPARTMENT OF PUBLIC HEALTH AND
ENVIRONMENT
CONTRACT
ROUTING NO.
2020*0586
INTERGOVERNMENT CONTRACT
STATE: CONTRACTOR:
State of Colorado for the use & benefit of the Town of Vail
Department of Public Health and Environment 75 South Frontage Road
Water Quality Control Division Vail, Co 81657
4300 Cherry Creek Drive South
B-2
Denver, Co 80246 CONTRACTOR DUNS: 075753293
CONTRACTOR ENTITY TYPE:
CONTRACT MADE DATE: 6/11/2019
Political Subdivision
BILLING STATEMENTS RECEIVED:
Quarterly
TERM: STATUTORY AUTHORITY:
This contract shall be effective upon approval by
the State Controller, or designee, or on 7/29/2019, CLASSIFICATION: Subrecipient
whichever is later. The contract shall end on 2/28/2023.
CONTRACT PRICE NOT TO EXCEED: $167,589.00
PROCUREMENT METHOD: FEDERAL FUNDING DOLLARS: $134,600.00
RFA STATE FUNDING DOLLARS: $32,989.00
BID/RFP/LIST PRICE AGREEMENT NUMBER: OTHER FUNDING DOLLARS:
8875 Specify “Other”:
MAXIMUM AMOUNT AVAILABLE PER FISCAL YEAR:
LAW SPECIFIED VENDOR STATUTE:
FY2020-2023: $167,589.00
PRICE STRUCTURE: Cost Reimbursement
STATE REPRESENTATIVE: CONTRACTOR REPRESENTATIVE:
Tamara Allen Pete Wadden
Restoration and Protection Unit Manager 75 South Frontage Road
4300 Cherry Creek Drive South Vail, Co 81657
B-2
Denver, Co 80246
PROJECT DESCRIPTION:
The project serves to improve water quality in the Gore Creek Watershed, near Vail Colorado, by implementing and investigating the
effectiveness of nonpoint source best management practices (BMPs) to reduce nonpoint source pollution of sediment.
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Intergovernmental Template Ver 22.4.19 Page 2 of 2
EXHIBITS:
The following exhibits are hereby incorporated:
Exhibit A - Additional Provisions (and any of its Attachments; e.g., A-1, A-2, etc.)
Exhibit B - Statement of Work (and any of its Attachments; e.g., B-1, B-2, etc.)
Exhibit C - Budget (and any of its Attachments; e.g., C-1, C-2, etc.)
Exhibit D - Option Letter (and any of its Attachments; e.g., D-1, D-2, etc.)
COORDINATION: The State warrants that required approval, clearance and coordination has been accomplished from and with appropriate agencies. Section 29-1-203, C.R.S., as amended, encourages governments to make the most efficient and effective use of their powers and responsibilities by cooperating and contracting with each other to the fullest extent possible to provide any function, service, or facility lawfully authorized to
each of the cooperating or contracting entities.
APPROVAL: In no event shall this contract be deemed valid until it shall have been approved by the State Controller or
his/her designee.
PROCUREMENT: All State of Colorado contracts with its political subdivisions and other governmental entities are exempt from the State of Colorado’s personnel rules and procurement code. PRICE PROVISIONS: Payments pursuant to this contract shall be made as earned, in whole or in part, from available funds, encumbered for the purchase of the described services and/or deliverables. The liability of the State at
any time for such payments shall be limited to the encumbered amount remaining of such funds. Authority exists in the laws and funds have been budgeted, appropriated and otherwise made available, and a sufficient unencumbered balance thereof remains available for payment.
Financial obligations of the State of Colorado payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available.
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Intergovernmental Template Ver 22.4.19 Page 3 of 3
GENERAL PROVISIONS The following clauses apply to this contract. In some instances, these general clauses have been expanded upon in other sections/exhibits of/to this contract. To the extent that other provisions of the contract provide more specificity than these general clauses, the more specific provision shall control. 1. Governmental Immunity. Notwithstanding any other provision to the contrary, no term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protection or other provisions of the Colorado Governmental Immunity Act, Section 24-10-101 et.seq., CRS, as now or hereafter amended. The parties understand and agree that liability for claims for injuries to persons or property arising out of negligence of the State of Colorado, its departments, institutions, agencies, boards, officials and employees is controlled and limited by the provisions of Section 24-10-101 et.seq. CRS and the risk management statutes, Section 24-30-1501, et.seq, CRS as now or hereafter amended. 2. Available Funds Contingency a. Available Funds. The State is prohibited by law from making commitments beyond the term of the State’s current fiscal year; therefore, Contractor’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. 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 available amount remaining of such encumbered funds. In the event that state funds become unavailable for this Contract, as determined by the State, the State may immediately terminate this Contract or amend it accordingly. b. Federal Funds Contingency. Payment pursuant to this contract, if in federal funds, whether in whole or in part, is subject to and contingent upon the continuing availability of federal funds for the purposes hereof. In the event that said funds, or any part thereof, become unavailable, as determined by the State, the State may immediately terminate this contract or amend it accordingly without liability including liability for termination costs. 3. Billing Procedures. The State shall establish billing procedures and requirements for payment due the Contractor in providing performance pursuant to this contract. The Contractor shall comply with the established billing procedures and requirements for submission of billing statements. The State shall comply with CRS 24-30-202(24) when paying vendors upon receipt of a correct notice of the amount due for goods or services provided hereunder. 4. Exhibits - Interpretation. Unless otherwise stated, all referenced exhibits are incorporated herein and made a part of this contract. Unless otherwise stated, the terms of this contract shall control over any conflicting terms in any of its exhibits. In the event of conflicts or inconsistencies between this contract and its exhibits or attachments, such conflicts or inconsistencies shall be resolved by reference to the documents in the following order of priority: 1) the Special Provisions of this Contract; 2) the Additional Provisions Exhibit A and its attachments if included; 3) the Contract (other than the Special Provisions); 4) the RFP if applicable and attached; 5) the Scope/Statement of Work Exhibit B and its attachments if included; 6) the Contractor’s proposal if applicable and attached; 7) other exhibits/attachments in their order of appearance. The conditions, provisions, and terms of any RFP attached hereto, if applicable, establish the minimum standards of performance that the Contractor must meet under this Contract. If the Contractor's Proposal, if attached hereto, or any attachments or exhibits thereto, or the Scope/Statement of Work Exhibit B, establish or create standards of performance greater than those set forth in the RFP, then the Contractor shall also meet those standards of performance under this Contract. 5. Notice and Representatives. For the purposes of this contract, the representative for each party is as designated herein. Any notice required or permitted may be delivered in person or sent by registered or certified mail, return receipt requested, to the party at the address provided, and if sent by mail it is effective when posted in a U.S. Mail Depository with sufficient postage attached thereto. Notice of change of address or change or representative shall be treated as any other notice.
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6. Contractor Representations - Qualifications/Licenses/Approvals/Insurance. The Contractor certifies that, at the time of entering into this contract, it and its agents have currently in effect all necessary licenses, certifications, approvals, insurance, etc. required to properly provide the services and/or supplies covered by this contract in the state of Colorado. Proof of such licenses, certifications, approvals, insurance, etc. shall be provided upon the State's request. Any revocation, withdrawal or non-renewal of necessary license, certification, approval, insurance, etc. required for the Contractor to properly perform this contract, shall be grounds for termination of this contract by the State. Contractor certifies that it is qualified to perform such services or provide such deliverables as delineated in this contract. 7. Legal Authority. The Contractor 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 bind the Contractor to its terms. The person(s) executing this contract on behalf of the Contractor warrant(s) that such person(s) have full authorization to execute this contract. 8. Insurance – Contractor. The Contractor is a “public entity” within the meaning of the Colorado Governmental Immunity Act (CGIA), section 24-10-101, et seq., C.R.S., as amended. Therefore, at all times during the initial term of this Contract, and any renewals or extensions hereof, the Contractor shall maintain such liability insurance, by commercial policy or self-insurance, as is necessary to meet its liabilities under the CGIA. If requested by the State, the Contractor shall provide the State with written proof of such insurance coverage. 9. Rights in Data, Documents and Computer Software or Other Intellectual Property. All intellectual property including without limitation, databases, software, documents, research, programs and codes, as well as all, reports, studies, data, photographs, negatives or other documents, drawings or materials prepared by the Contractor in the performance of its obligations under this contract shall be the exclusive property of the State. Unless otherwise stated, all such material shall be delivered to the State by the Contractor upon completion, termination, or cancellation of this contract. Contractor shall not use, willingly allow, or cause to have such materials used for any purpose other than the performance of the Contractor’s obligations under this contract without the prior written consent of the State. All documentation, accompanying the intellectual property or otherwise, shall comply with the State requirements which include but is not limited to all documentation being in a paper, human readable format which is useable by one who is reasonably proficient in the given subject area. Software documentation shall be delivered by Contractor to the State that clearly identifies the programming language and version used, and when different programming languages are incorporated, identifies the interfaces between code programmed in different programming languages. The documentation shall contain source code which describes the program logic, relationship between any internal functions, and identifies the disk files which contain the various parts of the code. Files containing the source code shall be delivered and their significance to the program described in the documentation. The documentation shall describe error messages and the location in the source code, by page, line number, or other suitable identifier, where the error message is generated. The Contractor warrants that the delivered software will be sufficiently descriptive to enable maintenance and modification of the software. The State’s ownership rights described herein shall include, but not be limited to, the right to copy, publish, display, transfer, prepare derivative works, or otherwise use the works. If any material is produced under this Contract and the parties hereto mutually agreed that said material could be copyrighted by Contractor or a third party, then the State, and any applicable federal funding entity, shall, without additional cost, have a paid in full, irrevocable, royalty free, and non-exclusive license to reproduce, publish, or otherwise use, and authorize others to use, the copyrightable material for any purpose authorized by the Copyright Law of the United States as now or hereafter enacted. Upon the written request of the State, the Contractor shall provide the State with three (3) copies of all such copyrightable material. 10. Confidential or Proprietary Information. Subject to the Public (Open) Records Act, section 24-72-101, et seq., C.R.S., as amended, if the Contractor obtains access to any records, files, or other information of the State in connection with, or during the performance of, this Contract, then the Contractor shall keep all such records, files, or other information confidential and shall comply with all laws and regulations concerning the confidentiality of all such records, files, or information to the same extent as such laws and regulations apply to the State. Contractor shall protect the confidentiality of all information accessed, used,
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Intergovernmental Template Ver 22.4.19 Page 5 of 5
held, created or received in connection with this Contract and shall insure that any subcontractors or agents of Contractor protect the confidentiality of all information under this Contract. Contractor shall access, use and disclose confidential information only for the operation and administration of the Contract, and shall not directly or indirectly disclose confidential information after the term of the Contract. Contractor shall implement appropriate safeguards as are necessary to prevent accidental or unauthorized use or disclosure of confidential information and shall maintain a comprehensive written information privacy and security program that includes administrative, technical and physical safeguards for maintaining and transmitting electronic confidential information. Contractor shall promptly notify the State if Contractor breaches the confidentiality of any information covered by this Contract. Any breach of confidentiality by the Contractor, or third party agents of the Contractor, shall constitute good cause for the State to cancel this Contract, without liability to the State. Any State waiver of an alleged breach of confidentiality by the Contractor, or third party agents of the Contractor, does not constitute a waiver of any subsequent breach by the Contractor, or third party agents of the Contractor. The Contractor must identify to the State the information that it considers confidential or proprietary. This is a continuing obligation. Confidential or proprietary information for the purpose of this paragraph is information relating to Contractor’s research, development, trade secrets, business affairs, internal operations and management procedures and those of its customers, clients or affiliates, but does not include information lawfully obtained by third parties, information which is in the public domain, or information which is or could have been acquired/developed independently by the State or a third party. Notwithstanding the foregoing, the State shall not be in violation of its obligations under this section should it disclose confidential information if such disclosure is, in the sole opinion of the State’s legal counsel, required by applicable law and/or legal process (including, but not limited to, disclosures required pursuant to the Colorado (Open) Public Records Act, sections 24-72-201, et. seq, C.R.S., as now or hereafter amended). The State shall endeavor to provide notice to the Contractor, as promptly as practicable under the circumstances, of any demand, request, subpoena, court order or other action requiring such disclosure, in order to afford Contractor the opportunity to take such lawful action as it deems appropriate to oppose, prevent or limit the disclosure, solely at its own instance and expense; but nothing herein shall be construed to require the State to refuse or delay compliance with any such law, order or demand. 11. Records Maintenance, Performance Monitoring & Audits. The Contractor shall maintain a complete file of all records, documents, communications, and other materials that pertain to the operation of the program/project or the delivery of services under this contract. Such files shall be sufficient to properly reflect all direct and indirect costs of labor, materials, equipment, supplies and services, and other costs of whatever nature for which a contract payment was made. These records shall be maintained according to generally accepted accounting principles and shall be easily separable from other Contractor records. The Contractor shall protect the confidentiality of all records and other materials containing personally identifying information that are maintained in accordance with this contract. Except as provided by law, no information in possession of the Contractor about any individual constituent shall be disclosed in a form including identifying information without the prior written consent of the person in interest, a minor's parent, guardian, or the State. The Contractor shall have written policies governing access to, duplication and dissemination of, all such information and advise its agents, if any, that they are subject to these confidentiality requirements. The Contractor shall provide its agents, if any, with a copy or written explanation of these confidentiality requirements before access to confidential data is permitted. The Contractor authorizes the State, the federal government or their designee, to perform audits and/or inspections of its records, at any reasonable time during the term of this contract and for a period of six (6) years following the termination of this contract, to assure compliance with the state or federal government's terms and/or to evaluate the Contractor's performance. Any amounts the State paid improperly shall be immediately returned to the State or may be recovered in accordance with other remedies. All such records, documents, communications, and other materials shall be the property of the State unless otherwise specified herein and shall be maintained by the Contractor in a central location as custodian for the State on behalf of the State, for a period of six (6) years from the date of final payment or submission of the final federal expenditure report under this contract, unless the State requests that the records be retained for a longer period, or until an audit has been completed with the following qualification. If an audit by or on behalf of the federal and/or state government has begun but is not completed at the end of the six (6) year period, or if audit findings have not been resolved after a six (6) year period, the materials shall be retained until the resolution of the audit findings.
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The Contractor shall permit the State, any other governmental agency authorized by law, or an authorized designee thereof, in its sole discretion, to monitor all activities conducted by the Contractor pursuant to the terms of this contract. Monitoring may consist of internal evaluation procedures, reexamination of program data, special analyses, on-site verification, formal audit examinations, or any other procedures as deemed reasonable and relevant. All such monitoring shall be performed in a manner that will not unduly interfere with contract work. 12. Taxes. The State, as purchaser, is exempt from all federal excise taxes under Chapter 32 of the Internal Revenue Code [No. 84-730123K] and from all state and local government use taxes [C.R.S. 39- 26-114(a) and 203, as amended]. The Contractor is hereby notified that when materials are purchased for the benefit of the State, such exemptions apply except that in certain political subdivisions the vendor may be required to pay sales or use taxes even though the ultimate product or service is provided to the State. These sales or use taxes will not be reimbursed by the State. 13. Conflict of Interest. During the term of this contract, the Contractor shall not engage in any business or personal activities or practices or maintain any relationships which conflict in any way with the Contractor fully performing his/her obligations under this contract. Additionally, the Contractor acknowledges that, in governmental contracting, even the appearance of a conflict of interest is harmful to the interests of the State. Thus, the Contractor agrees to refrain from any practices, activities or relationships which could reasonably be considered to be in conflict with the Contractor's fully performing his/her obligations to the State under the terms of this contract, without the prior written approval of the State. In the event that the Contractor is uncertain whether the appearance of a conflict of interest may reasonably exist, the Contractor shall submit to the State a full disclosure statement setting forth the relevant details for the State's consideration and direction. Failure to promptly submit a disclosure statement or to follow the State's direction in regard to the apparent conflict shall be grounds for termination of the contract. Further, the Contractor, and its subcontractors or subgrantees, shall maintain a written code of standards governing the performance of its employees engaged in the award and administration of contracts. No employee, officer, or agent of the Contractor, subcontractor, or subgrantee shall participate in the selection, or in the award or administration of a contract or subcontract supported by Federal funds if a conflict of interest, real or apparent, would be involved. Such a conflict would arise when: a. The employee, officer or agent; b. Any member of the employee’s immediate family; c. The employee’s partner; or d. An organization which employees, or is about to employ, any of the above, has a financial or other interest in the firm selected for award. The Contractor’s, subcontractor’s, or subgrantee’s officers, employees, or agents will neither solicit nor accept gratuities, favors, or anything of monetary value from Contractor’s potential contractors, or parties to subagreements. 14. Inspection and Acceptance (Services) and Contractor Warranty. The State reserves the right to inspect services provided under this contract at all reasonable times and places during the term of the contract. “Services” as used in this clause includes services performed or tangible material produced or delivered in the performance of services. If any of the services do not conform to contract requirements, the State may require the contractor to perform the services again in conformity with contract requirements, with no additional payment. When defects in the quality or quantity of service cannot be corrected by re-performance, the State may (1) require the contractor to take necessary action to ensure that the future performance conforms to contract requirements and (2) equitably reduce the payment due the contractor to reflect the reduced value of the services performed. These remedies in no way limit the remedies available to the State in the termination provisions of this contract, or remedies otherwise available at law. Contractor warrants that all supplies furnished under this contract shall be free from defects in materials or workmanship, are installed properly and in accordance with manufacturer recommendations or other industry standards, and will function in a failure-free manner for a period of one (1) year from the date of delivery or installation. Contractor shall, at its option, repair or replace any supplies that fail to satisfy this
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warranty during the warranty period. Additionally, Contractor agrees to assign to the State all written manufacturer warranties relating to the supplies and to deliver such written warranties to the State. 15. Adjustments in Price. Adjustments to contract prices are allowable only so long as they are mutually agreeable by the parties and so long as they are included within a contract amendment made prior to the effective date of the price adjustments and made pursuant to the State of Colorado Fiscal Rules, signed by the parties, and approved by the State Controller or designee. The Contractor shall provide cost or pricing data for any price adjustment subject to the provisions of the Cost or Pricing Data Section of the Colorado State Procurement Rules. Any adjustment in contract price pursuant to the application of a clause in this contract shall be made in one or more of the following ways: a. By agreement on a fixed-price adjustment; b. By unit prices specified in the contract; c. In such other manner as the parties may mutually agree; or d. In the absence of agreement between the parties, by a unilateral determination by the procurement officer of the costs attributable to the event or situation covered by the clause, plus appropriate profit or fee. 16. Contract Modifications. This contract is subject to such modifications as may be required by changes in Federal or State law, or their implementing regulations. Any such required modification shall automatically be incorporated into and be part of this contract on the effective date of such change as if fully set forth herein. If either the State or the Contractor desires to modify the terms and conditions of this Contract, then the parties shall execute a standard written amendment to this Contract initiated by the State. The standard written amendment must be executed and approved in accordance with all applicable laws and rules by all necessary parties including the State Controller or delegate. 17. Litigation. The Contractor shall within five (5) calendar days after being served with a summons, complaint, or other pleading which has been filed in any federal or state court or administrative agency notify the State that it is a party defendant in a case which involves services provided under this contract. The Contractor shall deliver copies of such document(s) to the State's Executive Director. The term "litigation" includes an assignment for the benefit of creditors, and filings in bankruptcy, reorganization and/or foreclosure. 18. Notice of Breach and Dispute Resolution: If the State or the Contractor believes in good faith that the other party has failed to timely complete a deliverable, or has otherwise committed a material breach of this Contract, then the non-breaching party shall notify the breaching party in writing of the alleged breach within ten (10) business days of: 1) the date of the alleged breach if the non-breaching party is aware of the breach at the time it occurs; or 2) the date that the non-breaching party becomes aware of the breach. Upon receipt of written notice of an alleged breach of the Contract, the breaching party shall have ten (10) business days, or such additional time as may be agreed to in writing between the parties, within which to cure the alleged breach or to notify the non-breaching party in writing of the breaching party’s belief that a material breach of this Contract has not occurred. Failure of the breaching party to cure or respond in writing within the above time period shall result in the non-breaching party being entitled to pursue any and all remedies available at law or in equity. Except as herein specifically provided otherwise, disputes concerning the performance of this contract which cannot be resolved by the designated contract representatives shall be referred in writing to a senior departmental management staff designated by the department and a senior manager designated by the Contractor. Failing resolution at that level, disputes shall be presented in writing to the Executive Director and the Contractor's chief executive officer for resolution. This process is not intended to supersede any other process for the resolution of controversies provided by law. The Contractor and its sureties shall be liable for any damage to the State resulting from the Contractor’s breach, whether or not the Contractor’s right to proceed with the work is terminated. The State reserves the right, in its sole discretion, to determine whether or not to accept substituted performance tendered by the Contractor or the Contractor’s sureties and acceptance is dependent upon completion of all applicable inspection procedures.
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19. Remedies: In addition to any other remedies provided for in this contract, and without limiting its remedies otherwise available at law, the State may exercise the following remedial actions if the Contractor substantially fails to satisfy or perform the duties and obligations in this contract. Substantial failure to satisfy the duties and obligations shall be defined to mean significant insufficient, incorrect or improper performance, activities, or inaction by the Contractor. Without limitation, these remedial actions include: a. withhold payment to Contractor until the necessary services or corrections in performance are satisfactorily completed; and/or b. require the vendor to take necessary action to ensure that the future performance conforms to contract requirements; and/or c. request the removal from work on the contract of employees or agents of Contractor whom the State justifies as being incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable, or whose continued employment on the contract the State deems to be contrary to the public interest or not in the best interest of the State; and/or d. deny payment for those services or obligations which have not been performed and which due to circumstances caused by Contractor cannot be performed, or if performed would be of no value to the State; denial of the amount of payment must be reasonably related to the value of work or performance lost to the State; and/or e. suspend Contractor’s performance pending necessary corrective action as specified by the State without Contractor’s entitlement to adjustment in price/cost or schedule; and/or f. modify or recover payments (from payments under this contract or other contracts between the State and the vendor as a debt due to the State) to correct an error due to omission, error, fraud and/or defalcation; and/or g. terminate the contract. These remedies in no way limit the remedies available to the State in the termination provisions of this contract, or remedies otherwise available at law. 20. Termination. a. Termination for Default. The State may terminate the contract for cause. In the event this contract is terminated for cause, the State will only reimburse the Contractor for accepted work or deliverables received up to the date of termination. In the event this contract is terminated for cause, final payment to the Contractor may be withheld at the discretion of the State until completion of final audit. Notwithstanding the above, the Contractor shall not be relieved of liability to the State for any damages sustained by the State by virtue of any breach of the contract by the Contractor, and the State may withhold any payment to the Contractor for the purposes of mitigating its damages until such time as the exact amount of damages due to the State from the Contractor is determined. If it is determined that the Contractor was not in default then such termination shall be treated as a termination for convenience as described herein. In the event of termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, and reports or other material prepared by the contractor under this contract shall, at the option of the State, become its property, and the Contractor shall be entitled to receive just and equitable compensation for any services and supplies delivered and accepted. The Contractor shall be obligated to return any payment advanced under the provisions of this contract. b. Termination for Convenience. The State shall have the right to terminate this contract at any time the State determines necessary by giving the Contractor at least twenty (20) calendar days prior
written notice. If notice is so given, this contract shall terminate on the expiration of the specified time period, and the liability of the parties hereunder for further performance of the terms of this contract shall thereupon cease, but the parties shall not be released from the duty to perform their obligations up to the date of termination. In the event of termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, and reports or other material prepared by the contractor under this contract shall, at the option of the State, become its property, and the Contractor shall be entitled to receive just and equitable compensation for any satisfactory services and supplies delivered. In the event that the State terminates this contract under the Termination for Convenience provisions, the Contractor is entitled to submit a termination claim within ten (10) days of the
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effective date of termination. The termination claim shall address and the State shall consider paying the following costs: I. the contract price for performance of work, which is accepted by the State, up to the effective date of the termination; II. reasonable and necessary costs incurred in preparing to perform the terminated portion of the contract; III. reasonable profit on the completed but undelivered work up to the date of termination; IV. the costs of settling claims arising out of the termination of subcontracts or orders, not to exceed 30 days pay for each subcontractor; V. reasonable accounting, legal, clerical, and other costs arising out of the termination settlement. In no event shall reimbursement under this clause exceed the contract amount reduced by amounts previously paid by the State to the Contractor. c. Immediate Termination. This contract is subject to immediate termination, in whole or in part, by the State without further liability in all of the following circumstances: I. In the event that the State determines that the health, safety, or welfare of persons receiving services may be in jeopardy; II. Upon verifying that the Contractor has engaged in or is about to participate in fraudulent or other illegal acts; or III. If State or federal funds are not appropriated, or otherwise become unavailable to fund this Contract. 21. Stop Work Order. Upon written approval by the State Procurement Officer or delegee, the State may, by written order to the Contractor, at any time, and without notice to any surety, require the Contractor to stop all or any part of the work called for by this contract. This order shall be for a specified period after the order is delivered to the Contractor. Any such order shall be identified specifically as a stop work order issued pursuant to this clause. Upon receipt of such an order, the Contractor shall forthwith comply with its terms and take all reasonable steps to minimize the incurring of costs allocable to the work covered by the order during the period of work stoppage. Before the stop work order expires, as legally extended, the State Procurement Officer or delegee shall either: a. Cancel the stop work order; or b. Terminate the work covered by such order; or c. Terminate the contract. If a stop work order issued under this clause is properly canceled, the Contractor shall have the right to resume work. An appropriate adjustment shall be made in the delivery schedule or contract price, or both, and the contract shall be modified accordingly in writing pursuant to the terms of this contract dealing with contract modifications, if: a. The stop work order results in increased time required for, or in the Contractor’s cost properly allocable to, the performance of any part of this contract; and b. The Contractor asserts claim for such an adjustment within thirty (30) days after the end of the period of work stoppage. If the work covered by such order is terminated for default or convenience, the reasonable costs resulting from the stop work order shall be allowed by adjustment or otherwise and such adjustment shall be in accordance with the Price Adjustment Clause of this contract. 22. Venue. The parties agree that exclusive venue for any action related to performance of this contract shall be in
the City and County of Denver, Colorado. 23. Understanding of the Parties. a. Complete Integration. This contract is intended as the complete integration of all understandings between the parties. No prior or contemporaneous addition, deletion, or other amendment hereto
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shall have any force or effect whatsoever, unless embodied herein in writing. No subsequent novation, renewal, addition, deletion, or other amendment hereto shall have any force or effect unless embodied in a written contract executed and approved pursuant to the State Fiscal Rules. b. Severability. To the extent that this contract 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. c. Binding Agreement. Except as herein specifically provided otherwise, it is expressly understood and agreed that this contract shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. All rights of action relating to enforcement of the terms and conditions shall be strictly reserved to the State and the named Contractor. Nothing contained in this agreement shall give or allow any claim or right of action whatsoever by any other third person. It is the express intention of the State and the Contractor that any such person or entity, other than the State or the Contractor, receiving services or benefits under this agreement shall be deemed an incidental beneficiary only. d. Waiver. The waiver of any breach of a term hereof shall not be construed as a waiver of any other term, or the same term upon subsequent breach. e. Continuing Obligations. The State and the Contractor's obligations under this contract shall survive following termination or expiration to the extent necessary to give effect to the intent and understanding of the parties. f. Assignment and Change In Ownership, Address, Financial Status. Except as herein specifically provided otherwise, the rights, duties and obligations of the Contractor arising hereunder cannot be assigned, delegated, subgranted or subcontracted except with the express prior written consent of the State, which consent shall not be unreasonably withheld. In the case of assignment or delegation, Contractor and the State shall execute the standard State novation agreement prior to the assignment or delegation being effective against the State. The subgrants and subcontracts permitted by the State shall be subject to the requirements of this contract. The Contractor is responsible for all subcontracting arrangements, delivery of services, and performance of any subgrantor or subcontractor. The Contractor warrants and agrees that any subgrant or subcontract, resulting from its performance under the terms and conditions of this contract, shall include a provision that the said subgrantor or subcontractor shall abide by the terms and conditions hereof. Also, the Contractor warrants and agrees that all subgrants or subcontracts shall include a provision that the subgrantor or subcontractor shall indemnify and hold harmless the State. The subgrantors or subcontractors must be certified to work on any equipment for which their services are obtained.
This provision shall not be construed to prohibit assignments of the right to payment to the extent permitted by section 4-9-318, CRS, provided that written notice of assignment adequate to identify the rights assigned is received by the controller for the agency, department, or institution executing this contract. Such assignment shall not be deemed valid until receipt by such controller – as distinguished from the State Controller – and the Contractor assumes the risk that such written notice of assignment is received by the controller for the agency, department, or institution involved. The Contractor is required to formally notify the State prior to, or if circumstances do not allow prior notification then immediately following, any of the following: I. change in ownership; II. change of address; III. the filing of bankruptcy. g. Force Majeure. Neither the Contractor nor the State shall be liable to the other for any delay in, or failure of performance of, any covenant or promise contained in this contract, nor shall any delay or failure constitute default or give rise to any liability for damages if, and only to the extent that,
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such delay or failure is caused by “force majeure.” As used in this contract “force majeure” means acts of God; acts of the public enemy; acts of the State and any governmental entity in its sovereign or contractual capacity; fires; floods, epidemics; quarantine restrictions, strikes or other labor disputes; freight embargoes; or unusually severe weather. h. Changes In Law. This contract is subject to such modifications as may be required by changes in applicable federal or State law, or their implementing rules, regulations, or procedures. Any such required modification shall automatically be incorporated into and be part of this contract on the effective date of such change as if fully set forth herein. Except as provided above, no modification of this contract shall be effective unless agreed to in writing by both parties in the form of a written amendment to this Contract that has been previously executed and approved in accordance with applicable law. i. Media or Public Announcements. Unless otherwise provided for in this Contract, the Contractor shall not make any news release, publicity statement, or other public announcement, either in written or oral form that concerns the work provided under this Contract, without the prior written approval of the State. The Contractor shall submit a written request for approval to the State no less than ten (10) business days before the proposed date of publication. The State shall not unreasonably withhold approval of the Contractor’s written request to publish. Approval or denial of the Contractor’s request by the State, shall be delivered to the Contractor in writing within six (6) business days from the date of the State’s receipt of Contractor’s request for approval. If required by the terms and conditions of a federal or state grant, the Contractor shall obtain the prior approval of the State and all necessary third parties prior to publishing any materials produced under this Contract. If required by the terms and conditions of a federal or state grant, the Contractor shall also credit the State and all necessary third parties with assisting in the publication of any materials produced under this Contract. It shall be the obligation of the Contractor to inquire of the State as to whether these requirements exist and obtain written notification from the State as Contractor deems appropriate. 24. Intellectual Indemnity. Contractor shall defend, at its sole expense, any claim(s) or suit(s) brought against the State alleging that the use by the State of any product(s), or any part thereof, supplied by Contractor under this agreement constitutes infringement of any patent, copyright, trademark, or other proprietary rights, provided that the State gives Contractor written notice within twenty (20) days of receipt by the State of such notice of such claim or suit, provides assistance and cooperation to Contractor in connection with such action, and Contractor has sole authority to defend or settle the claim. Contractor shall consult the State regarding such defense and the State may, at its discretion and expense, participate in any defense. Should the State not choose to participate, Contractor shall keep the State advised of any settlement or defense. Contractor shall have liability for all such claims or suits, except as expressly provided herein, and shall indemnify the State for all liability incurred by the State as a result of such infringement. Contractor shall pay all reasonable out-of-pocket costs and expenses, and damages finally awarded by a court of competent jurisdiction, awarded or agreed to by Contractor regarding such claims or suits. If the product(s), or any part thereof, become the subject of any claim, suit or proceeding for infringement of any patent, trademark or copyright, or in the event of any adjudication that the product(s), or any part thereof, infringes any patent, trademark or copyright, or if the sub-license or use of the product(s), or any part thereof, is enjoined, Contractor, after consultation with the State, shall do one of the following at Contractor's expense: a. produce for the State the right under such patent, trademark or copyright to use or sub-license, as appropriate, the product or such part thereof; or b. replace the product(s), or part thereof, with other suitable products or parts conforming to the original license and State specifications; or c. suitably modify the products, or part thereof. Except as otherwise expressly provided herein, Contractor shall not be liable for any costs or expenses incurred without its prior written authorization.
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Contractor shall have no obligation to defend against or to pay any costs, damages or attorney's fees with respect to any claim based upon: a. the use of an altered release if Contractor had not consented to the alteration; or b. the combination, operation or use of the product(s) with programs or data which were not furnished by Contractor, if such infringement would have been avoided if the programs or data furnished by persons or entities other than Contractor had not been combined, operated or used with the product(s); or c. the use of product(s) on or in connection with equipment or software not permitted under this contract if such infringement would have been avoided by not using the product(s) on or in connection with such other equipment or software. 25. Conformance with Law. If this Contract involves federal funds or compliance is otherwise federally mandated, the Contractor and its agent(s) shall at all times during the term of this contract strictly adhere to all applicable federal laws, state laws, Executive Orders and implementing regulations as they currently exist and may hereafter be amended. Without limitation, these federal laws and regulations include: a. Office of Management and Budget Circulars and The Common Rule for Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, as applicable; b. the “Hatch Act” (5 U.S.C. 1501-1508) and Public Law 95-454, Section 4728 c. when required by Federal program legislation, the “Davis-Bacon Act”, as amended (40 U.S.C. 3141-3148) as supplemented by Department of Labor Regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”); d. when required by Federal program legislation, the Copeland “Anti-Kickback” Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and Subcontractors on Public Building of Public Work Financed in Whole or in Part by Loans or Grants from the United States”). e. 42 U.S.C. 6101 et seq., 42 U.S.C. 2000d, 29 U.S.C. 794 (regarding discrimination); f. the “Americans with Disabilities Act” (Public Law 101-336; 42 U.S.C. 12101, 12102, 12111 - 12117, 12131 - 12134, 12141 - 12150, 12161 - 12165, 12181 - 12189, 12201 - 12213 and 47 U.S.C. 225 and 47 U.S.C. 611); g. if the Contractor is acquiring an interest in real property and displacing households or businesses in the performance of this Contract, then the Contractor is in compliance with 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); h. when applicable, the Contractor shall comply with the provisions of the “Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments” (Common Rule); i. Section 2101 of the Federal Acquisition Streamlining Act of 1994, Public Law 103-355; and j. If the Contractor is a covered entity under the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. 1320d – 1320d-8, the Contractor shall comply with applicable HIPAA requirements. If Contractor is a business associate under HIPAA, Contractor hereby agrees to, and has an affirmative duty to, execute the State’s current HIPAA Business Associate Agreement. In this case, Contractor must contact the State’s representative and request a copy of the Business Associate Agreement, complete the agreement, have it signed by an authorized representative of the Contractor, and deliver it to the State. k. The Federal Funding Accountability and Transparency Act of 2006 (Public Law 109-282), as amended by §6062 of Public Law 110-252, including without limitation all data reporting requirements required there under. This Act is also referred to as FFATA. l. Contractor shall comply with the provisions of Section 601 of Title VI of the Civil Rights Act of 1964, as amended. m. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of “federally assisted construction contract” in 41 CFR Part 60-1.3 comply with the equal opportunity clause provided under 41 CFR 60-1.3(b), in accordance with Executive Order 11246, “Equal Employment Opportunity: (30 FR 12319, 12935, 3 CFR Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal
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Employment Opportunity,” and implementing regulations at 41 CFR part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor. n. where applicable, Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708). o. if the Federal award meets the definition of “funding agreement” under 37 CFR § 401.2 (a) and the recipient or subrecipient wishes to enter into an agreement with a small business firm or nonprofit organization, comply with the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency. p. the Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251-1387), as amended. q. if applicable, comply with the mandatory standards and policies on energy efficiency contained within the State of Colorado’s energy conservation plan issued in compliance with the Energy Policy and Conservation Act, 42 U.S.C. 6201. 26. Contractor Affirmation. If this Contract involves federal funds or compliance is otherwise federally mandated, then by signing and submitting this Contract the Contractor affirmatively avers that: a. the Contractor is in compliance with the requirements of the “Drug-Free Workplace Act” (Public Law 100-690 Title V, Subtitle D, 41 U.S.C. 701 et seq.); b. the Contractor and all principals are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal department or agency; the Contractor and all principals shall comply with all applicable regulations pursuant to Executive Order 12549 (3 CFR Part 1986 Comp., p. 189) and Executive Order 12689 (3 CFR Part 1989 Comp., p. 235), Debarment and Suspension; and, c. the Contractor shall comply with all applicable regulations pursuant to Section 319 of Public Law 101-121, Guidance for New Restrictions on Lobbying, including, Certification and Disclosure, 29 C.F.R. 93.110(1990) and where applicable, the Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). 27. Annual Audits. If the Contractor expends federal funds from all sources (direct or from pass-through entities) in an amount of $750,000 or more during its fiscal year, then the Contractor shall have an audit of that fiscal year in accordance with Office of Management and Budget (OMB) Circular A-133 (Audits of States, Local Governments, and Non-Profit Organizations). If the Contractor expends federal funds received from the State in an amount of $750,000 or more during its fiscal year, then the Contractor shall furnish one (1) copy of the audit report(s) to the State’s Internal Audit Office within thirty (30) calendar days after the Contractor’s receipt of its auditor’s report or nine (9) months after the end of the Contractor’s audit period, whichever is earlier. If (an) instance(s) of noncompliance with federal laws and regulations occurs, then the Contractor shall take all appropriate corrective action(s) within six (6) months of the issuance of (a) report(s). 28. Holdover. In the event that the State desires to continue the services provided for in this Contract and a
replacement contract has not been fully executed by the expiration date of the Contract, this Contract may be extended unilaterally by the State for a period of up to two (2) months upon written notice to the Contractor under the same terms and conditions of the original Contract including, but not limited to, prices, rates, and service delivery requirements. However, this extension terminates when the replacement contract becomes effective when signed by the State Controller or an authorized delegate.
29. Survival of Certain Contract Terms. Notwithstanding anything in this contract to the contrary, the parties understand and agree that all terms and conditions of this contract which may require continued performance, compliance, or effect beyond the termination date of the contract and shall survive such
termination date and shall be enforceable by the State as provided herein in the event of failure to perform or comply by the Contractor.
30. STATEWIDE CONTRACT MANAGEMENT SYSTEM [This section shall apply when the Effective Date is on or after July 1, 2009 and the maximum amount payable to Contractor hereunder is $100,000 or
higher]
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By entering into this Contract, Contractor agrees to be governed, and to abide, by the provisions of CRS §24-102-205, §24-102-206, §24-103-601, §24-103.5-101 and §24-105-102 concerning the monitoring of vendor performance on state contracts and inclusion of contract performance information in a statewide contract management system.
Contractor’s performance shall be evaluated in accordance with the terms and conditions of this Contract, State law, including CRS §24-103.5-101, and State Fiscal Rules, Policies and Guidance. Evaluation of Contractor’s performance shall be part of the normal contract administration process and Contractor’s performance will be systematically recorded in the statewide Contract Management System. Areas of review shall include, but shall not be limited to quality, cost and timeliness. Collection of information relevant to the performance of Contractor’s obligations under this Contract shall be determined by the specific requirements of such obligations and shall include factors tailored to match the requirements of the Statement of Project of this Contract. Such performance information shall be entered into the statewide Contract Management System at intervals established in the Statement of Project and a final review and rating shall be rendered within 30 days of the end of the Contract term. Contractor shall be notified following each performance and shall address or correct any identified problem in a timely manner and maintain work progress.
Should the final performance evaluation determine that Contractor demonstrated a gross failure to meet the performance measures established under the Statement of Project, the Executive Director of the Colorado Department of Personnel and Administration (Executive Director), upon request by the Colorado Department of Public Health and Environment and showing of good cause, may debar Contractor and prohibit Contractor from bidding on future contracts. Contractor may contest the final evaluation and result by: (i) filing rebuttal statements, which may result in either removal or correction of the evaluation (CRS §24-105-102(6)), or (ii) 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 Contractor, by the Executive Director, upon showing of good cause.
31. Performance Outside the State of Colorado and/or the United States
[Not applicable if Contract Funds include any federal funds] Following the Effective Date, Contractor shall provide written notice to the State, in accordance with the Notices and Representatives provision, within 20 days of the earlier to occur of Contractor’s decision to perform, or its execution of an agreement with a Subcontractor to perform, Services outside the State of Colorado and/or the United States. Such notice shall specify the type of Services to be performed outside the State of Colorado and/or the United States and the reason why it is necessary or advantageous to perform such Services at such location or locations. All notices received by the State pursuant to this provision shall be posted on the Colorado Department of Personnel & Administration’s website. Knowing failure by Contractor to provide notice to the State under this provision shall constitute a material breach of this Contract.
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These Special Provisions apply to all contracts except where noted in italics.
A. CONTROLLER'S APPROVAL. §24-30-202(1), C.R.S.
This Contract shall not be valid until it has been approved by the Colorado State Controller or designee.
B. FUND AVAILABILITY. §24-30-202(5.5), C.R.S.
Financial obligations of the State payable after the current State Fiscal Year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available.
C. GOVERNMENTAL IMMUNITY.
Liability for claims for injuries to persons or property arising from the negligence of the State, its departments, boards, commissions committees, bureaus, offices, employees and officials shall be controlled and limited by the provisions of the Colorado Governmental Immunity Act, §24-10-101, et seq., C.R.S.; the Federal Tort Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b), and the State’s risk management statutes, §§24-30-1501, et seq. C.R.S. No term or condition of this Contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, contained in these statutes.
D. INDEPENDENT CONTRACTOR
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 shall not have authorization, express or implied, to bind the State to any agreement, liability or understanding, except as expressly set forth herein. 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. Contractor shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this Contract. Contractor shall (i) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (ii) provide proof thereof when requested by the State, and (iii) be solely responsible for its acts and those of its employees and agents.
E. 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.
F. CHOICE OF LAW, JURISDICTION, AND VENUE.
Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Contract. Any provision included or incorporated herein by reference which conflicts with said laws, rules, and regulations shall be null and void. All suits or actions related to this Contract shall be filed and proceedings held in the State of Colorado and exclusive venue shall be in the City and County of Denver.
G. PROHIBITED TERMS.
Any term included in the Contract that requires the State to indemnify or hold Contractor harmless; requires the State to agree to binding arbitration; limits Contractor’s liability for damages resulting from death, bodily injury, or damage to tangible property; or that conflicts with this provision in any way shall be void ab initio. Nothing in this Contract shall be construed as a waiver of any provision of §24-106-109 C.R.S. Any term included in this Contract that limits Contractor’s liability that is not void under this section shall apply only in excess of any insurance to be maintained under this Contract, and no insurance policy shall be interpreted as being subject to any limitations of liability of this Contract.
H. SOFTWARE PIRACY PROHIBITION.
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
COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-1)
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this Contract, including, without limitation, immediate termination of this Contract and any remedy consistent with federal copyright laws or applicable licensing restrictions.
I. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. §§24-18-201 and 24-50-507, C.R.S.
The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this 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.
J. VENDOR OFFSET AND ERRONEOUS PAYMENTS. §§24-30-202(1) and 24-30-202.4, C.R.S.
[Not applicable to intergovernmental agreements] Subject to §24-30-202.4(3.5), C.R.S., the State Controller may withhold payment under the State’s vendor offset intercept system for debts owed to State agencies for: (i) unpaid child support debts or child support arrearages; (ii) unpaid balances of tax, accrued interest, or other charges specified in §§39-21-101, et seq., C.R.S.; (iii) unpaid loans due to the Student Loan Division of the Department of Higher Education; (iv) amounts required to be paid to the Unemployment Compensation Fund; and (v) other unpaid debts owing to the State as a result of final agency determination or judicial action. The State may also recover, at the State’s discretion, payments made to Contractor in error for any reason, including, but not limited to, overpayments or improper payments, and unexpended or excess funds received by Contractor by deduction from subsequent payments under this Contract, deduction from any payment due under any other contracts, grants or agreements between the State and Contractor, or by any other appropriate method for collecting debts owed to the State.
K. PUBLIC CONTRACTS FOR SERVICES. §§8-17.5-101, et seq. C.R.S.
[Not applicable to agreements relating to the offer, issuance, or sale of securities, investment 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 State verification program established pursuant to §8-17.5-102(5)(c), C.R.S., 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 (i) shall not use E-Verify Program or the program procedures of the Colorado Department of Labor and Employment (“Department Program”) to undertake pre-employment screening of job applicants while this Contract is being performed, (ii) shall notify the Subcontractor and CDPHE within 3 days if Contractor has actual knowledge that a Subcontractor is employing or contracting with an illegal alien for work under this Contract, (iii) shall terminate the subcontract if a Subcontractor does not stop employing or contracting with the illegal alien within 3 days of receiving the notice, and (iv) shall comply with reasonable requests made in the course of an investigation, undertaken pursuant to §8-17.5-102(5), C.R.S., by the Colorado Department of Labor and Employment. If Contractor participates in the Department program, Contractor shall deliver to CDPHE 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 §§8-17.5-101 et seq., C.R.S., CDPHE may terminate this Contract for breach and, if so terminated, Contractor shall be liable for damages.
L. PUBLIC CONTRACTS WITH NATURAL PERSONS. §§24-76.5-101, et seq., C.R.S.
Contractor, if a natural person 18 years of age or older, hereby swears and affirms under penalty of perjury that he or she (i) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (ii) shall comply with the provisions of §§24-76.5-101 et seq., C.R.S., and (iii) has produced one form of identification required by §24-76.5-103, C.R.S. prior to the Effective Date of this Contract.
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Intergovernmental Template Ver 22.4.19 Page 17 of 17
SIGNATURE PAGE
Contract Routing Number: 2020*0586
THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT Each person signing this Amendment represents and warrants that he or she is duly authorized to execute this
Amendment and to bind the Party authorizing his or her signature.
CONTRACTOR Town of Vail
_________________________________________
______________________________________________
By: Print Name & Title
Date: _________________________
STATE OF COLORADO Jared S. Polis, Governor Colorado Department Of Public Health and Environment Jill Hunsaker Ryan, MPH, Executive Director
______________________________________________ By: Lisa McGovern, Procurement and Contracts Section
Director
Date: _________________________
PROGRAM APPROVAL Colorado Department Of Public Health and Environment
__________________________________________
_________________________________________
By: Print Name & Title
Date:_____________________
In accordance with §24-30-202 C.R.S., this Amendment is not valid until signed and dated below by the State Controller
or an authorized delegate.
STATE CONTROLLER Robert Jaros, CPA, MBA, JD
__________________________________________
By: David Norris, Controller, CDPHE
Contract Effective Date:_____________________
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Intergovernmental Template Ver 22.4.19 Page 18 of 18
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August 6, 2019 - Page 43 of 109
EXHIBIT A
Page 1 of 4 Contract_Exhibit-A_AdditionalProvisions_18.3.12
ADDITIONAL PROVISIONS To Original Contract Routing Number 2020*0586
These provisions are to be read and interpreted in conjunction with the provisions of the Contract specified above. 1. This Contract contains federal and state funds (see Catalog of Federal Domestic Assistance (CFDA) numbers 66.460). 2. The United States Environmental Protection Agency (“USEPA”) has awarded as of 9/12/2018 anticipated federal funds of $2,100,000.00 under Notice of Cooperative Agreement Awards, hereinafter “NCAA” number(s) C9-99818618 to provide support to the state of Colorado to implement its State Nonpoint Source Management program developed under the Clean Water Act Section 319. If the underlying “NCAA” authorizes the State to pay all allowable and allocable expenses of a Contractor as of the Effective Date of that NCAA, then the State shall reimburse the Contractor for any allowable and allocable expenses of the Contractor that have been incurred by the Contractor since the proposed Effective Date of this Contract. If the underlying NCAA does not authorize the State to pay all allowable and allocable expenses of a Contractor as of the Effective Date of that NCAA, then the State shall only reimburse the Contractor for those allowable and allocable expenses of the Contractor that are incurred by the Contractor on or after the Effective Date of this Contract, with such Effective Date being the later of the date specified in this Contract or the date the Contract is signed by the State Controller or delegee. 3. To receive compensation under the Contract, the Contractor shall submit a signed quarterly CDPHE WQCD Nonpoint Source Program Custom Invoice Form. This form will be provided to the Contractor by the Nonpoint Source Project Coordinator. CDPHE will provide technical assistance in accessing and completing the form. The CDPHE WQCD Nonpoint Source Program Custom Invoice Form must be submitted no later than forty-five (45) calendar days after the end of the billing period for which services were rendered. Expenditures shall be in accordance with the Statement of Work attached hereto as Exhibit B and incorporated herein and the associated Budget attached hereto as Exhibit C and incorporated herein. The Contractor shall receive pre-approval from the NPS Project Coordinator for planned purchases of equipment with a unit costs of $5,000 or more. The Contractor shall provide a matching contribution of at least $56,744.00. Matching contributions may be provided as cash or in-kind services, and may include contributions from other project partners. Unless otherwise provided for in the Contract, local match, if any, shall be included on all invoices as required by funding source. The Contractor shall not use federal funds to satisfy federal cost sharing and matching requirements unless approved in writing by the appropriate federal agency. The Contractor shall submit the
following expenditure and match documentation with the completed CDPHE WQCD Nonpoint Source Program Custom Invoice Form: progress report(s) and additional applicable documents in the invoice form. Match requirements shall be documented in accordance with 2 CFR 225 Cost Principles for State, Local and Indian Tribal Governments, as currently promulgated. Scan the completed and signed CDPHE WQCD Nonpoint Source Program Custom Invoice Form and any
additional applicable documentation into an electronic document. Email the invoice form and supporting documentation to: cdphe_wqcd_nonpointsource+managers@state.co.us Final billings under the Contract must be received by the State within a reasonable time after the expiration
or termination of the Contract; but in any event no later than forty-five (45) calendar days from the effective expiration or termination date of the Contract.
The State shall hold five percent (5%) of the total obligation of the State as the final payment. Final payment will be made upon approval of the final report by the State.
August 6, 2019 - Page 44 of 109
EXHIBIT A
Page 2 of 4 Contract_Exhibit-A_AdditionalProvisions_18.3.12
4. Time Limit For Acceptance Of Deliverables. a. Evaluation Period. The State shall have thirty (30) calendar days from the date a deliverable is delivered to the State by the Contractor to evaluate that deliverable, except for those deliverables that have a different time negotiated by the State and the Contractor. b. Notice of Defect. If the State believes in good faith that a deliverable fails to meet the design specifications for that particular deliverable, or is otherwise deficient, then the State shall notify the Contractor of the failure or deficiencies, in writing, within thirty (30) calendar days of: 1) the date the deliverable is delivered to the State by the Contractor if the State is aware of the failure or deficiency at the time of delivery; or 2) the date the State becomes aware of the failure or deficiency. The above time frame shall apply to all deliverables except for those deliverables that have a different time negotiated by the State and the Contractor in writing pursuant to the State’s fiscal rules. c. Time to Correct Defect. Upon receipt of timely written notice of an objection to a completed deliverable, the Contractor shall have a reasonable period of time, not to exceed ten (10) calendar days, to correct the noted deficiencies. 5. The State has determined that this Contract does not constitute a Business Associate relationship under HIPAA. 6. This award does not include funds for Research and Development. 7. The State, at its discretion, shall have the option to extend the term under this Contract beyond the Initial Term for a period or for successive periods, of 1 year at the same rates and under the same terms specified in the Contract. In order to exercise this option, the State shall provide written notice to Contractor in as form substantially equivalent to Exhibit D. If exercised, the provisions of the Option Letter shall become part of and be incorporated in the original contract. The total duration of this contract shall not exceed 5 years. 8. The State, at its discretion, shall have the option to increase or decrease the statewide quantity of Goods and/or Services based upon the rates established in this Contract, and modify the maximum amount payable accordingly. In order to exercise this option, the State shall provide written notice to Contractor in a form substantially equivalent to Exhibit D. Delivery of Goods and/or performance of Services shall continue at the same rates and terms as described in this Contract. 9. Responsible Project Director: The Contractor’s performance of the services required hereunder shall be under the direct supervision of Pete Wadden, who is hereby designated as the Contractor’s Project Director for this Contract. If, at any time during the term of this Contract, the Contractor’s named Project Director, xxx is not assigned to this Contract, then the Contractor shall immediately notify the State in writing and all work under this Contract shall be suspended until a new Project Director, acceptable to the State, has been assigned by the Contractor to this Contract. 10. The Contractor shall comply with the current EPA general terms and conditions associated with this NCAA which are available at http://www.epa.gov/grants/grant-terms-and-conditions, some of which are highlighted below. These terms and conditions are in addition to the assurances and certifications made as part of the award and the terms, conditions, or restrictions cited throughout the contract.
a. Requirement for Data Universal Numbering System (DUNS) numbers. If the Contractor is authorized to make sub-contracts under this award, the contractor: i. Shall notify potential sub-contractors that no entity (see definition in paragraph 12.3 of the EPA general terms and conditions award term) may receive a sub-award unless the entity has provided its DUNS number.
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EXHIBIT A
Page 3 of 4 Contract_Exhibit-A_AdditionalProvisions_18.3.12
ii. Shall not make a sub-contract to an entity unless the entity has provided its DUNS number. b. TITLE VI – Limited English Proficiency (LEP), Public Participation and Affirmative Compliance Obligation i. As a recipient of EPA financial assistance, the Contractor, as required by Title VI of the Civil Rights Act shall provide meaningful access to LEP individuals. In implementing that requirement, the recipient agrees to use as a guide the Office of Civil Rights (OCR) document entitled "Guidance to Environmental Protection Agency Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons." The guidance can be found at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2004_register&docid=fr25jn04-79.pdf c. Audit Requirements; i. In accordance with 2 CFR 200.501(a), if the Contractor expends $750,000 or more in total Federal funds during the Contractor’s fiscal year, then the Contractor shall have a single or program specific audit conducted for that fiscal year. d. The Contractor shall not use funds under this Contract to purchase light refreshments and/or meals to be served at meetings, conferences, training workshops and outreach activities (events) unless the purchase of light refreshments has been pre-approved by the NPS Project Coordinator during scope of work negotiations.
11. Minority Business Enterprises and Women’s Business Enterprises
If, at any time during the term of this Contract, or any renewal or extension thereof, the Contractor awards any subcontract(s), then the Contractor agrees to make the Six Good Faith Efforts identified in 40 CFR, Section 33.301 during procurement for construction, equipment, services and supplies. If the Contractor awards any subcontract(s) through procurement for construction, equipment, services and supplies, then the Contractor shall adopt the “fair share” goals/objectives for Minority Business Enterprise (MBE) and Women’s Business Enterprise (WBE) participation in procurement associated with the grant identified in section 2 above, which are a minimum six and one tenth percent (6.1%) fair share goal for the utilization of MBE and a minimum six and six tenths percent (6.6%) fair share goal for the utilization of WBE. If, at any time during the term of this Contract, or any renewal or extension thereof, the Contractor awards any subcontract(s) under the Contract to a Disadvantaged Business Enterprise, then the Contractor shall complete and submit an EPA Form 5700 52A “MBE/WBE Utilization under Federal Grants, Cooperative Agreements, and Interagency Agreements” to the State annually.
12. Permits and Surveys
Contractor shall ensure that all necessary permits (such as Clean Water Act Section 404) are received or surveys completed (such an Endangered Species Act or Historic Preservation Act) prior to implementation of any grant funded activity which may fall under applicable federal, state or local laws. Copies of any biological survey results, where a survey is necessary under Endangered Species Act shall be forwarded to the State. Contractor shall provide copies of all permits upon request of the State.
13. The Contractor shall comply with the current Clean Water Act Section 319 Non-Point Source Assistance Agreements Public Awareness Terms and Conditions available at: https://www.epa.gov/grants/clean-water-
act-section-319-non-point-source-assistance-agreements-public-awareness-terms-and, some of which are highlighted below:
August 6, 2019 - Page 46 of 109
EXHIBIT A
Page 4 of 4 Contract_Exhibit-A_AdditionalProvisions_18.3.12
a. The Contractor shall include the Colorado Department of Public Health and Environment Nonpoint Source Program and Environmental Protection Agency in the credits on all public information and educational products that are developed under this contract and shall include CDPHE and EPA logos on project signage.
b. The Contractor shall notify the NPS Project Coordinator at least fourteen (14) working days in advance of any public or media events publicizing significant project accomplishments in order to provide the opportunity for attendance and participation.
c. To increase public awareness of projects serving communities where English is not the predominant language, recipients are encouraged to include in their outreach strategies communication in non-English languages. Translation costs for this purpose are allowable, provided the costs are reasonable
14. Operation and Maintenance
a. The Contractor shall assure the continued proper operation and maintenance of all nonpoint source management practices that have been implemented for projects funded under this agreement. Such practices shall be operated and maintained for the expected lifespan of the specific practice and in accordance with commonly accepted standards.
August 6, 2019 - Page 47 of 109
EXHIBIT B
Page 1 of 4 Contract_SOW_Exhibit B_December_2015.doc
STATEMENT OF WORK To Original Contract Routing Number 2020*0586
These provisions are to be read and interpreted in conjunction with the provisions of the contract specified above. I. Entity Name: Town of Vail
Project Description: The project serves to improve water quality in the Gore Creek Watershed, near Vail Colorado, by implementing and investigating the effectiveness of nonpoint source best management practices
(BMPs) to reduce nonpoint source pollution of sediment, within the contract term. Nonpoint source pollution results from runoff carrying pollutants from diffuse sources into streams. The diffuse nature of entry of nonpoint source pollution makes it difficult to manage, thus leading to the need for implementation of BMPs. The project specific pollutant is sediment, which negatively affects macroinvertebrate habitat when the load level exceeds the water quality standard. Gore Creek is provisionally listed for macroinvertebrates on the 303(d) list of impaired waters, because the elevated sediment in the stream does not meet the aquatic life standard set by the Water
Quality Control Commission. Implementing the BMPs will improve water quality and aquatic habitat for macroinvertebrates and fish species. II. Definitions: 1. BMPs - Best Management Practices - A practice or combination of practices, as determined by a responsible group after examination of alternative practices and appropriate public participation, to be the most effective, practicable means of preventing or reducing the amount of pollution from nonpoint sources to a level consistent with water quality standards and goals. BMPs can be both structural (e.g. construction of on-the-ground controls) and nonstructural (e.g. education programs).
2. CDPHE – Colorado Department of Public Health and Environment
3. EPA - Environmental Protection Agency
4. Macroinvertebrate Habitat - Aquatic macroinvertebrates live on, under, and around rocks and sediment on
the bottoms of lakes, rivers, and streams.
5. MMI - (Multimetric Index – for macroinvertebrates) a numeric representation of biological or habitat conditions
based on combined signals of many assemblage or physical measurements. Each measurement,
or metric, is selected to be included in the index because it shows a consistent response along a known
disturbance gradient. The combined index gives a reliable indication of biological or habitat integrity.
6. Nonpoint source pollution – pollution from many diffuse sources that is carried to waterbodies by rain or
snowmelt
7. NPS – Nonpoint Source
8. NRCS – Natural Resources Conservation Service
9. SAP – Sampling and Analysis Project Plan - a plan intended to assist organizations in documenting the
procedural and analytical requirements for one-time, or time limited, projects involving the collection of water,
soil, sediment, or other samples taken to characterize areas of potential environmental contamination. It
combines the basic elements of a Quality Assurance Project Plan (QAPP) and a Field Sampling Plan (FSP).
10. WQX: The Water Quality Exchange (WQX) is the mechanism for data partners to submit water monitoring
data to EPA
III. Work Plan: Goal #1: To improve water quality in Colorado by reducing the potential for nonpoint source pollution. Objective #1: No later than the expiration date of the contract, the Contractor shall reduce sediment nonpoint source pollution impacts within the Gore Creek watershed.
Primary Activity #1 The Contractor shall finalize nonpoint source BMP designs.
August 6, 2019 - Page 48 of 109
EXHIBIT B
Page 2 of 4 Contract_SOW_Exhibit B_December_2015.doc
Sub-Activities #1
1. The Contractor shall review NRCS design criteria.
2. The Contractor shall apply applicable NRCS design criteria at each BMP site. 3. The Contractor shall prepare design documents.
Primary Activity #2 The Contractor shall implement at least two (2) nonpoint source BMPs for sediment reduction.
Sub-Activities #2
1. The Contractor shall select a contractor through an open bidding process. 2. The Contractor shall construct the final BMPs.
Primary Activity #3 The Contractor shall quantify nonpoint source pollutant load reduction through BMP
performance monitoring.
Sub-Activities #3
1. The Contractor shall develop a SAP.
2. The Contractor shall collect pre-nonpoint source BMP(s) implementation water quality samples.
3. The Contractor shall collect pre-nonpoint source BMP(s) implementation macroinvertebrate samples.
4. The Contractor shall collect post nonpoint source BMP(s) implementation water quality samples.
5. The Contractor shall collect post nonpoint source BMP(s) implementation macroinvertebrate samples.
6. The Contractor shall analyze water quality samples for metals. 7. The Contractor shall analyze water quality samples for sediment.
8. The Contractor shall analyze water quality samples for chemical pollutants. 9. The Contractor shall analyze macroinvertebrate samples.
10. The Contractor shall upload the water quality data to the EPA WQX database. 11. The Contractor shall upload the macroinvertebrate data to the EPA WQX database.
12. The Contractor shall upload the BMP performance data to the International Stormwater BMP Database.
13. The Contractor shall calculate sediment load reductions. 14. The Contractor shall evaluate the effectiveness of BMPs to meet water quality load
reduction targets.
Primary Activity #4 The Contractor shall conduct outreach activities within the Gore Creek watershed community.
Sub-Activities #4
1. The Contractor shall hold at least one (1) public tour of the BMPs within one (1) year
of construction. 2. The Contractor shall create a project fact sheet. 3. The Contractor shall feature the project at least one (1) time on three (3) different social media sites.
Primary Activity #5 The Contractor shall prepare project reports.
Sub-Activities #5 1. The Contractor shall prepare semi-annual reports. 2. The Contractor shall prepare a draft final report. 3. The Contractor shall prepare a final report.
Standards and Requirements
1. The content of electronic documents located on CDPHE and non-CDPHE websites and information contained on CDPHE and non-CDPHE websites may be updated periodically during the contract term. The contractor shall monitor documents and website content for updates and comply with all updates. 2. The Contractor shall comply with all CDPHE branding policies. This information is located on the Colorado Brand website www.colorado.gov/cdphe/logo-brand and incorporated in this contract by reference. 3. The Contractor shall select at least two (2) nonpoint source BMP from the list of BMPs in Appendix E of the 2012 Nonpoint Source Management Plan. This document is incorporated and made a part of this contract by reference and is available at the following
August 6, 2019 - Page 49 of 109
EXHIBIT B
Page 3 of 4 Contract_SOW_Exhibit B_December_2015.doc
website: https://www.colorado.gov/pacific/cdphe/2012-nonpoint-source-management-
plan. 4. The WQCD will provide written feedback for any draft documentation related to final deliverables within 30 calendar days of receipt from the Contractor. 5. The Contractor shall have a sign-in sheet at the tour.
6. The Contractor shall use the Nonpoint Source Sampling and Analysis Project Plan (SAP) template. This document is incorporated and made a part of this contract by reference and is available at the following website: https://www.colorado.gov/pacific/cdphe/nonpoint-source-project-monitoring-and-assessment 7. The Contractor shall receive email approval of the SAP from the CDPHE Water Quality Control Division Project Coordinator prior to commencement of sampling activities.
8. The Contractor shall receive email approval from the WQCD Project Coordinator for any changes to the SAP prior to implementing those changes in the field. 9. The Contractor shall use the CDPHE NPS Semi-Annual and Final Report templates. These documents are incorporated and made a part of this contract by reference and are available at the following website: https://www.colorado.gov/pacific/cdphe/nonpoint-source-project-management.
10. Social media platforms to feature the project include but are not limited to: a. Facebook b. Twitter. c. Instagram
11. The Contractor shall upload all water quality data to the EPA Water Quality Data (WQX). This website is incorporated and made a part of this contract by reference and is available
at the following website https://www.epa.gov/waterdata/water-quality-data-wqx 12. The Contractor shall verify all water quality data uploaded to WQX are uploaded into the
Water Quality Portal database. This database is incorporated and made a part of this contract by reference and is available at the following website
https://www.waterqualitydata.us/. 13. The final report shall include:
a. Geo-referencing data of sampling locations. b. Geo-referencing data of BMP locations. c. An assessment of all data. d. Pollutant load reduction evaluation.
Expected Results of Activity(s)
1. Improved water quality by implementation of nonpoint source BMPs to reduce the
amount of sediment in Gore Creek watershed. Sediment negatively affects aquatic life when the concentration exceeds the water quality standard.
2. Improved MMI scores near nonpoint source BMP implementation areas. Measurement of Expected Results
1. Sediment load reductions in nonpoint source BMP implementation areas.
Completion Date Deliverables 1. The Contractor shall submit a draft SAPP to the WQCD Project Coordinator via email. No later than 60 days in advance of
any sampling event.
2. The Contractor shall submit the final SAPP to the WQCD Project
Coordinator via email.
No later than 10
days in advance of the first sampling
event.
3. The Contractor shall submit final design documents to the WQCD Project Coordinator via email. No later than 30 days after design
completion.
4. The Contractor shall submit semi-annual reports to the WQCD Project Coordinator via email. No later than each March 15th and
September 15th during the contract
period.
August 6, 2019 - Page 50 of 109
EXHIBIT B
Page 4 of 4 Contract_SOW_Exhibit B_December_2015.doc
5. The Contractor shall submit screenshots of social media posts to
the WQCD Project Coordinator via email.
No later than 5 days
after posting.
6. The Contractor shall submit the project factsheet to the WQCD Project Coordinator via email. No later than 10 days after completion.
7. The Contractor shall submit the draft final report to the WQCD Project Coordinator via email. No later than 60 days before the end
date of the contract.
8. The Contractor shall submit proof of submittal of data to the EPA
WQX database to the WQCD Project Coordinator via email.
No later than 30
days before the end date of the contract.
9. The Contractor shall submit the final report to the WQCD Project Coordinator via email. No later than the end date of the
contract.
IV. Monitoring: CDPHE’s monitoring of this contract for compliance with performance requirements will be conducted throughout the contract period by the Nonpoint Source Project Coordinator. Methods used will include a review of documentation determined by CDPHE to be reflective of performance to include invoices, progress reports, semi-annual reports and other fiscal and programmatic documentation as applicable. The Contractor’s performance will be evaluated at set intervals and communicated to the contractor. A Final Contractor Performance Evaluation will be conducted at the end of the life of the contract. V. Resolution of Non-Compliance: The Contractor will be notified in writing within 7 calendar days of discovery of a compliance issue. Within 30 calendar days of discovery, the Contractor and the State will collaborate, when appropriate, to determine the action(s) necessary to rectify the compliance issue and determine when the action(s) must be completed. The action(s) and time line for completion will be documented in writing and agreed to by both parties. If extenuating circumstances arise that requires an extension to the time line, the Contractor must email a request to the Nonpoint Source Project Coordinator and receive approval for a new due date. The State will oversee the completion/implementation of the action(s) to ensure time lines are met and the issue(s) is resolved. If the Contractor demonstrates inaction or disregard for the agreed upon compliance resolution plan, the State may exercise its rights under the provisions of this contract.
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EXHIBIT C
Page 1 of 1
I. Entity Name: Town of Vail
II. Definitions:
1. BMP: Best Management Practice
2. NPS: Nonpoint Source
3. WQIF: Water Quality Improvement Fund
III. Budget Table
Activities NPS 2018 319 Grant* WQIF 2018 Total Funding
Activity 1: Finalize nonpoint source BMP designs. $0 $20,000 $20,000
Activity 2: Implement at least two (2) nonpoint source BMPs for sediment reduction. $134,600 $12,989 $147,589
Activity 3: Quantify nonpoint source
pollutant load reduction through BMP performance monitoring. $0 $0 $0
Activity 4: Conduct outreach activities within the Gore Creek watershed community. $0 $0 $0
Activity 5: Prepare project reports. $0 $0 $0
Project Totals $134,600 $32,989 $167,589
Contract Total (NPS +WQIF): $167,589
*Minimum match of $56,744 is a requirement of this grant. Minimum match does not include WQIF funds.
Budget To Original Contract Routing Number 2020*0586
August 6, 2019 - Page 52 of 109
Exhibit D
Page 1 of 2
OPTION LETTER
Date: State Fiscal Year: Option Letter No. Original Contract CMS#
Option Letter CMS Routing # CORE Encumbrance #
DELETE all BLUE text, CUSTOMIZE Red text and CHANGE Red text to Black after customization. 1) OPTIONS: Choose all applicable options listed below a. Option to extend for a renewal or additional term b. Option to change amount of goods c. Option to change amount of services d. Option to change contract rates e. Option to initiate next phase of contract
2) REQUIRED PROVISIONS. All Option Letters shall contain the appropriate provisions set forth below:
a. For use with Options a: In accordance with Section(s) enter section the Original Contract referenced above between the State of Colorado, Colorado Department of Public Health and Environment, and enter Contractor’s name the State hereby
exercises its option for an additional term beginning insert start date and ending on insert end date at the rates stated in the Original Contract, as amended.
b. For use with Option b and c. In accordance with Section(s) enter section of the Original Contract routing number referenced above, between the State of Colorado, Colorado Department of Public Health and Environment, and enter Contractor’s name the State hereby exercises its option to Increase/Decrease the quantity of Goods/Services or both at the rates stated in the Original Contract, as amended.
c. For use with Option d. In accordance with Section(s) enter section of the Original Contract routing number referenced above, the State hereby exercise its option to modify the Contract rates specified in Exhibit/Section Number. The Contract
rates attached to this Option letter in Exhibit/Attachment Name replace the rates in the original Contract as of the Option Effective Date of this Option Letter.
d. For use with Option e: In accordance with Section(s) enter section of the Original Contract routing number referenced above, the State hereby exercise its option to initiate Phase indicate which Phase: 2, 3, 4 etc. which shall begin on insert start
date and ending on insert end date at the cost/price specified in Section enter section the Original Contract referenced above. e. For use with Options a, b, c that modify the contract value: The amount of the current Fiscal Year contract value is
increased/decreased by $ enter amount of change to a new contract value of insert new $ amount as consideration for
services/goods ordered under the contract for the current fiscal year Indicate Fiscal Year. The first sentence in Section enter
section of the original contract is hereby modified accordingly. The amended total contract financial obligation including all
previous amendments, option letters, etc. is insert new $ amount.
3) Effective Date: The effective date of this Option Letter is upon approval of the State Controller if exact date is required
complete the following: enter date, and include the following: whichever is later.
STATE OF COLORADO John W. Hickenlooper, GOVERNOR Department of Public Health and Environment
By: Lisa McGovern, Purchasing & Contracts Section Director Date: _________________________
PROGRAM APPROVAL: By: ____________________________________
ALL CONTRACTS REQUIRE APPROVAL BY THE STATE CONTROLLER CRS §24-30-202 requires the State Controller to approve all State Contracts. This Contract is not valid until signed and dated below by the State Controller or delegate. Contractor is not authorized to begin performance until such time. If Contractor begins performing prior thereto, the State of Colorado is not obligated to pay Contractor for such performance or for any goods and/or services provided hereunder.
August 6, 2019 - Page 53 of 109
Exhibit D
Page 2 of 2
STATE CONTROLLER Robert Jaros, CPA, MBA, JD
By: ____________________________________
Date: ___________________
August 6, 2019 - Page 54 of 109
VAIL TOWN COUNCIL AGENDA MEMO
ITEM/TOPIC: Contract with Conservation by Design for Gore Valley Trail Interpretive Installation
PRESENTER(S): Peter Wadden, Watershed Education Coordinator
BACKGROUND: On May 20, 2018, Town of Vail entered into a contract with the interpretive
design firm Conservation by Design for the development of the Gore Valley Trail Interpretive Plan.
Town Council adopted the interpretive plan on April 2, 2019. The next step in enacting the Plan is
to design a watershed walk-over map, 12 story stations and two picnic table tops as well as
fabricate the story stations and table tops (Attachment A).
STAFF RECOMMENDATION: Staff recommends Council authorize the acting town manager
to enter into a contract with Conservation by Design.
ATTACHMENTS:
Description
Attachment A: SOW for design and fabrication
PSA for Interpretive Installation Design and Fabrication
August 6, 2019 - Page 55 of 109
SCOPE OF WORK
Gore Valley Trail Interpretive Exhibit Design & Fabrication
Vail, CO
Summary
The Town of Vail has recently committed funding for interpretive exhibits along Gore Valley Trail in Vail,
CO, and has selected Conservation By Design to perform this work.
Scope of Work
Conservation By Design (CBD) will implement the development, design and fabrication of outdoor exhibits
described below. This work will include the development and refinement of interpretive text, acquisition of
images (photographs and/or illustrations), graphic design, overall exhibit design, and fabrication of all
elements. Delivery and installation are NOT included in the current scope of work and will require
additional fees.
Story Station Exhibits—Designed to be installed at 12 locations along Gore Valley Trail. Each story
station exhibit will include a thematic, custom-shaped metal sign base and one or more graphic
panels. Some locations will also include an interactive element, as described below.
o Location 1: East Vail Highway Exit—Single-sided upright exhibit with spotting scope.
o Location 2: Beaver pond—Single-sided upright exhibit with spotting scope.
o Location 3: Ford Park before bridge to nature center—Single-sided upright exhibit.
o Location 4: Ford Park before covered bridge—Low profile exhibit.
o Location 5: Ford Park near downstream entrance—Low profile exhibit with tactile element.
o Location 6: Between covered bridge to Vail Village and Ford Park—Single-sided upright
exhibit with spotting scope and fish-shaped stream gauge.
o Location 7: Gore Creek Promenade or Whitewater Park—Double-sided upright exhibit.
o Location 8: Public Library—Single-sided upright exhibit.
o Location 9: Behind Lion Square Lodge west of skier bridge—Low profile exhibit.
o Location 10: Between wastewater treatment plant and skier bridge—Low profile exhibit with
tactile element.
o Location 11: Wastewater treatment plant outflow—Single-sided upright exhibit with
filtration model.
o Location 12: Donovan Park—Single-sided upright exhibit.
Walkover Watershed Map—Design of artwork only.
Picnic Tables—Graphic panels will be designed to be inset into the surface of existing picnic tables
at two locations: Public Library and at Vail Village.
August 6, 2019 - Page 56 of 109
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Exhibit designs will be submitted to the client for review at the 30%, 60% and 90% review stages. Client will
provide final acceptance at the 100% submittal. Fabrication will proceed once final design acceptance has
been received.
Project Primaries
The client has identified one primary project contact who will represent the Town of Vail throughout the
project. All instructions, review comments and revisions will be consolidated and routed through this
primary client contact—Pete Wadden, Watershed Education Coordinator. Both parties understand that this
main client contact may change at any point. However, the duties of the main client contact will remain the
same.
Payment
The cost to provide the above services totals $71,000 and will be paid in 4 installments (at the 30%, 60%
and 90% draft design submittals and upon acceptance of all fabricated items). Payments will be made by
the Town of Vail within 30 days of approved invoices.
Roles & Responsibilities
Any change to the scope of work must be documented in an amendment to this agreement and may
result in additional project costs or changes to the project schedule. Scope of work changes include:
Additional revisions requested after revision instructions have been received.
Revisions requested for previously approved project phases.
Failure of Client or CBD to perform requirements of the agreement.
Changes in the scope of work to be accomplished under this agreement.
Any request by Client or CBD to change the project timeline.
Tasks to Be Performed by Client
Provide all relevant background materials and
any specialist contacts for the project.
Provide timely guidance and overview for the
entire process.
Provide timely reviews and feedback essential
to the development of this interpretive
project.
Identify a Client oversight team for review
and one Client Representative. This Client
Representative will be responsible for
distributing draft submittals for review and
consolidating all review comments.
Provide background materials, make
appropriate contacts with key stakeholders,
schedule meetings and handle logistics
related to any site visit.
Tasks to Be Performed by CBD
Melanie Pierson will serve as the Project
Manager and Principal-in-Charge of this
project. All correspondence will be directed
to Melanie unless otherwise agreed to.
Develop and maintain a project schedule.
Review research materials and develop
interpretive text.
Perform research and secure graphics as
appropriate.
Attend and facilitate site visit meetings.
Manage/administer overall project.
Produce draft and final documents.
August 6, 2019 - Page 57 of 109
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AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT is made and entered into this 7th day of August, 2019 by and
between the TOWN OF VAIL, a Colorado municipal corporation, 75 South Frontage Road, Vail,
Colorado 81657, hereinafter referred to as the "Town,", and Conservation by Design, a small
business that specializes in site interpretation, 2220 E. Calvary Lane, Prescott, AZ 86301
("Contractor") (each individually a "Party" and collectively the "Parties").
WHEREAS, the Town requires professional services; and
WHEREAS, Contractor has held itself out to the Town as having the requisite expertise
and experience to perform the required professional services.
NOW, THEREFORE, for the consideration hereinafter set forth, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
I. SCOPE OF SERVICES
A. Contractor shall furnish all labor and materials required for the complete and
prompt execution and performance of all duties, obligations, and responsibilities which are
described or reasonably implied from the Scope of Services set forth in Exhibit A, attached
hereto and incorporated herein by this reference.
B. A change in the Scope of Services shall not be effective unless authorized as an
amendment to this Agreement. If Contractor proceeds without such written authorization,
Contractor shall be deemed to have waived any claim for additional compensation, including a
claim based on the theory of unjust enrichment, quantum merit or implied contract. Except as
expressly provided herein, no agent, employee, or representative of the Town is authorized to
modify any term of this Agreement, either directly or implied by a course of action.
II. TERM AND TERMINATION
A. This Agreement shall commence on the Effective Date, and shall continue until
Contractor completes the Scope of Services to the satisfaction of the Town, or until terminated as
provided herein.
B. Either Party may terminate this Agreement upon seven (7) days advance written
notice. The Town shall pay Contractor for all work previously authorized and completed prior to
the date of termination. If, however, Contractor has substantially or materially breached this
Agreement, the District shall have any remedy or right of set-off available at law and equity.
III. COMPENSATION
A. In consideration for the completion of the Scope of Services by Contractor, the
Town shall pay Contractor an amount not to exceed $71,000. This maximum amount shall
include all fees, costs and expenses incurred by Contractor, and no additional amounts shall be
paid by the Town for such fees, costs and expenses. Contractor shall bill the Town on a
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quarterly basis and be paid by the Town as the Scope of Services is completed to the satisfaction
of the Town.
B. Notwithstanding the maximum amount specified in this Section, Contractor shall
be paid only for work performed. If Contractor completes the Scope of Services for less than the
maximum amount, Contractor shall be paid the lesser amount, not the maximum amount.
IV. PROFESSIONAL RESPONSIBILITY
A. Contractor hereby warrants that it is qualified to assume the responsibilities and
render the services described herein and has all requisite corporate authority and professional
licenses in good standing, required by law.
B. The work performed by Contractor shall be in accordance with generally accepted
professional practices and the level of competency presently maintained by other practicing
professional firms in the same or similar type of work in the applicable community. The work
and services to be performed by Contractor hereunder shall be done in compliance with
applicable laws, ordinances, rules and regulations.
C. The Town's review, approval or acceptance of, or payment for any services shall
not be construed to operate as a waiver of any rights under this Agreement or of any cause of
action arising out of the performance of this Agreement.
D. Because the Town has hired Contractor for its professional expertise, Contractor
agrees not to employ subcontractors to perform any work under the Scope of Services, except for
those explicitly described in Exhibit A.
V. OWNERSHIP
Any materials, items, and work specified in the Scope of Services, and any and all related
documentation and materials provided or developed by Contractor shall be exclusively owned by
the Town. Contractor expressly acknowledges and agrees that all work performed under the
Scope of Services constitutes a "work made for hire." To the extent, if at all, that it does not
constitute a "work made for hire," Contractor hereby transfers, sells, and assigns to the Town all
of its right, title, and interest in such work. The Town may, with respect to all or any portion of
such work, use, publish, display, reproduce, distribute, destroy, alter, retouch, modify, adapt,
translate, or change such work without providing notice to or receiving consent from Contractor.
VI. INDEPENDENT CONTRACTOR
Contractor is an independent contractor. Notwithstanding any other provision of this
Agreement, all personnel assigned by Contractor to perform work under the terms of this
Agreement shall be, and remain at all times, employees or agents of Contractor for all purposes.
Contractor shall make no representation that it is a Town employee for any purposes.
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VII. INSURANCE
A. Contractor agrees to procure and maintain, at its own cost, a policy or policies of
insurance sufficient to insure against all liability, claims, demands, and other obligations
assumed by Contractor pursuant to this Agreement. At a minimum, Contractor shall procure and
maintain, and shall cause any subcontractor to procure and maintain, the insurance coverages
listed below, with forms and insurers acceptable to the Town.
1. Worker's Compensation insurance to cover obligations imposed by
applicable law for any employee engaged in the performance of work under this
Agreement, and Employer's Liability insurance with minimum limits of $100,000 bodily
injury by accident for each employee, $100,000 bodily injury by disease for each
employee, and policy limit of $500,000 bodily injury by disease.
2. Commercial General Liability insurance with minimum combined single
limits of six hundred thousand ($600,000) each occurrence and one million dollars
($1,000,000) general aggregate. The policy shall be applicable to all premises and
operations, and shall include coverage for bodily injury, broad form property damage,
personal injury (including coverage for contractual and employee acts), blanket
contractual, products, and completed operations. The policy shall contain a severability
of interests provision, and shall include the Town and the Town's officers, employees,
and contractors as additional insureds. No additional insured endorsement shall contain
any exclusion for bodily injury or property damage arising from completed operations.
B. Such insurance shall be in addition to any other insurance requirements imposed
by law. The coverages afforded under the policies shall not be canceled, terminated or
materially changed without at least thirty (30) days prior written notice has been given to the
Town. In the case of any claims-made policy, the necessary retroactive dates and extended
reporting periods shall be procured to maintain such continuous coverage. Any insurance carried
by the Town, its officers, its employees, or its contractors shall be excess and not contributory
insurance to that provided by Contractor. Contractor shall be solely responsible for any
deductible losses under any policy.
VIII. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless the Town and its officers, insurers,
volunteers, representative, agents, employees, heirs and assigns from and against all claims,
liability, damages, losses, expenses and demands, including attorney fees, on account of injury,
loss, or damage, including without limitation claims arising from bodily injury, personal injury,
sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever,
which arise out of or are in any manner connected with this Agreement if such injury, loss, or
damage is caused in whole or in part by, the act, omission, error, professional error, mistake,
negligence, or other fault of Contractor, any subcontractor of Contractor, or any officer,
employee, representative, or agent of Contractor, or which arise out of a worker's compensation
claim of any employee of Contractor or of any employee of any subcontractor of Contractor.
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IX. ILLEGAL ALIENS
A. Certification. By entering into this Agreement, Contractor hereby certifies that, at
the time of this certification, it does not knowingly employ or contract with an illegal alien who
will perform work under this Agreement and that Contractor will participate in either the E-
Verify Program administered by the United States Department of Homeland Security and Social
Security Administration or the Department Program administered by the Colorado Department
of Labor and Employment to confirm the employment eligibility of all employees who are newly
hired to perform work under this Agreement.
B. Prohibited Acts. Contractor shall not:
1. Knowingly employ or contract with an illegal alien to perform work under
this Agreement; or
2. 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 Agreement.
C. Verification.
1. If Contractor has employees, Contractor has confirmed the employment
eligibility of all employees who are newly hired to perform work under this Agreement
through participation in either the E-Verify Program or the Department Program.
2. Contractor shall not use the E-Verify Program or Department Program
procedures to undertake pre-employment screening of job applicants while this
Agreement is being performed.
3. If Contractor obtains actual knowledge that a subcontractor performing
work under this Agreement knowingly employs or contracts with an illegal alien who is
performing work under this Agreement, Contractor shall:
a. Notify the subcontractor and the District within three (3) days that
Contractor has actual knowledge that the subcontractor is employing or
contracting with an illegal alien who is performing work under this Agreement;
and
b. Terminate the subcontract with the subcontractor if within three (3)
days of receiving the notice required pursuant to subsection 1 hereof, the
subcontractor does not stop employing or contracting with the illegal alien who is
performing work under this Agreement; except that Contractor shall not terminate
the subcontract if during such three (3) days the subcontractor provides
information to establish that the subcontractor has not knowingly employed or
contracted with an illegal alien who is performing work under this Agreement.
D. Duty to Comply with Investigations. Contractor shall comply with any
reasonable request by the Colorado Department of Labor and Employment made in the
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course of an investigation conducted pursuant to C.R.S. § 8-17.5-102(5)(a) to ensure that
Contractor is complying with the terms of this Agreement.
E. Affidavits. If Contractor does not have employees, Contractor shall sign the "No
Employee Affidavit" attached hereto. If Contractor wishes to verify the lawful presence of
newly hired employees who perform work under the Agreement via the Department Program,
Contractor shall sign the "Department Program Affidavit" attached hereto.
X. MISCELLANEOUS
A. Governing Law and Venue. This Agreement shall be governed by the laws of the
State of Colorado, and any legal action concerning the provisions hereof shall be brought in
Eagle County, Colorado.
B. No Waiver. Delays in enforcement or the waiver of any one or more defaults or
breaches of this Agreement by the Town shall not constitute a waiver of any of the other terms or
obligation of this Agreement.
C. Integration. This Agreement constitutes the entire agreement between the Parties,
superseding all prior oral or written communications.
D. Third Parties. There are no intended third-party beneficiaries to this Agreement.
E. Notice. Any notice under this Agreement shall be in writing, and shall be deemed
sufficient when directly presented or sent pre-paid, first class United States Mail to the party at
the address set forth on the first page of this Agreement.
F. Severability. If any provision of this Agreement is found by a court of competent
jurisdiction to be unlawful or unenforceable for any reason, the remaining provisions hereof shall
remain in full force and effect.
G. Modification. This Agreement may only be modified upon written agreement of
the Parties.
H. Assignment. Neither this Agreement nor any of the rights or obligations of the
Parties hereto, shall be assigned by either Party without the written consent of the other.
I. Governmental Immunity. The Town, its officers, and its employees, are relying
on, and do not waive or intend to waive by any provision of this Agreement, the monetary
limitations (presently one hundred fifty thousand dollars ($150,000) per person and six hundred
thousand dollars ($600,000) per occurrence) or any other rights, immunities, and protections
provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended,
or otherwise available to the Town and its officers or employees.
J. Rights and Remedies. The rights and remedies of the Town under this Agreement
are in addition to any other rights and remedies provided by law. The expiration of this
Agreement shall in no way limit the Town's legal or equitable remedies, or the period in which
such remedies may be asserted, for work negligently or defectively performed.
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K. Subject to Annual Appropriation. Consistent with Article X, § 20 of the Colorado
Constitution, any financial obligation of the District not performed during the current fiscal year
are subject to annual appropriation, and thus any obligations of the Town hereunder shall extend
only to monies currently appropriated and shall not constitute a mandatory charge, requirement,
debt or liability beyond the current fiscal year.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date first set
forth above.
TOWN OF VAIL
a Colorado Municipal Corporation
ATTEST:
___________________________________ _________________________________
Tammy Nagel Patty McKenny
Town Clerk Acting Town Manager
CONTRACTOR
By: ________________________________
Melanie Pierson, Principal
Conservation by Design
STATE OF ________________ )
) ss.
COUNTY OF )
The foregoing instrument was subscribed, sworn to and acknowledged before me this ___
day of ________________, 2019, by ____________________________ as _________________
of ________________________.
My commission expires:
(S E A L) ____________________________________
Notary Public
August 6, 2019 - Page 64 of 109
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EXHIBIT A
SCOPE OF SERVICES
See attached Proposal from Conservation by Design to the
Town of Vail
August 6, 2019 - Page 65 of 109
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DEPARTMENT PROGRAM AFFIDAVIT
[To be completed only if Contractor participates in the
Department of Labor Lawful Presence Verification Program]
I, ________________________, as a public contractor under contract with the Town of
Vail (the " Town "), hereby affirm that:
1. I have examined or will examine the legal work status of all employees who are
newly hired for employment to perform work under this public contract for services
("Agreement") with the Town within twenty (20) days after such hiring date;
2. I have retained or will retain file copies of all documents required by 8 U.S.C. §
1324a, which verify the employment eligibility and identity of newly hired employees who
perform work under this Agreement; and
3. I have not and will not alter or falsify the identification documents for my newly
hired employees who perform work under this Agreement.
____________________________________ ________________________
Signature Date
STATE OF __________________ )
) ss.
COUNTY OF )
The foregoing instrument was subscribed, sworn to and acknowledged before me this
___ day of __________, 2018, by _______________________ as _________________ of
________________________.
My commission expires:
(S E A L) ___________________________________
Notary Public
August 6, 2019 - Page 66 of 109
VAIL TOWN COUNCIL AGENDA MEMO
ITEM/TOPIC: Request approval from the Town Council to purchase up to 7 battery electric 40'
low floor buses from Gillig Inc. per the bus replacement plan.
BACKGROUND: Request approval from the Town Council to purchase up to 7 battery electric
buses per the bus replacement plan. The TOV owns and operates 32 transit buses, the buses are
on a 12 year replacement plan, which is consistent with FTA requirements that a transit bus be
designed and operate for a minimum of 12 years. The two oldest buses are not on the
replacement schedule and are used as backup buses. The bus replacement plan has seven buses
to be replaced in 2020 that will be battery electric. After demoing many different vendors of battery
electric buses our team would recommend that we purchase Gillig battery electric buses.
STAFF RECOMMENDATION: Authorize the Town Manager to approve the purchase of up to
7, 40’ Gillig battery electric lowfloor buses and order the seven buses this year to take delivery in
2020. These funds are in the 5 year capital plan in 2020.
ATTACHMENTS:
Description
Staff Memo
August 6, 2019 - Page 67 of 109
TO: Vail Town Council
FROM: Public Works Department
DATE: August 6th, 2019
SUBJECT: Replace Transit Buses
I. PURPOSE
The purpose of this memo is to request approval from the Town Council to purchase up to 7
battery electric buses per the bus replacement plan, the TOV currently operates with 32 transit
buses.
II. BACKGROUND
The TOV owns and operates 32 transit buses, the buses are on a 12 year replacement plan, which
is consistent with FTA requirements that a transit bus be designed and operate for a minimum of
12 years. The current fleet of buses is:
(2) 2006 Gillig 35’ buses
(8) 2019 Gillig Low floor 40’ buses
(7) 2018 Gillig Low floor 40’ buses
(7) 2008 Gillig Low floor 40’ hybrid buses
(6) 2011 Gillig Low floor 40’ buses
(2) 2012 Gillig Low floor 40’ hybrid buses
The two oldest buses are not on the replacement schedule and are used as backup buses, we will
keep the 2006 Gillig’s as the backup buses.
The current lead time to start a bus build is 14 months from the date of order. The bus replacement
plan has seven buses to be replaced in 2020 that will be battery electric. After demoing many
different vendors of battery electric buses our team would recommend that we purchase Gillig
battery electric buses. This will allow the Town to keep driver options the same and have the bus
drive very similar to what are drivers are used to. Also most of our spare parts inventory will
transfer over to these new buses keeping inventory costs down. Gillig is using Cummins for their
electric drive system. This means we will have support on this new technology in Denver and
Grand Junction. The other bus manufacturers are either over seas or across the country. The
Town already has a strong relationship with Cummins as 95% of our current diesel engines are
Cummins.
August 6, 2019 - Page 68 of 109
2
III. Vendor Selection
The budget for this project is $6,525,000 in 2020. The Town is utilizing pricing based on a joint
procurement plan with a FTA approved State of Virginia contract. The price of each bus, based on
the State of Virginia contract with adjustments made to meet TOV requirements is $859,465. For
seven buses the total would be $6,016,255. The town currently has a grant for $525.287 for one
bus. We are still awaiting a response on our final grant submittal. We would like to use the
remaining $508,745 for the bus charges required to operate these buses. We would like to put a
place holder on these charger funds and present to Council at a later date for approval.
IV. ACTION REQUESTED
Authorize the Town Manager to approve the purchase of up to 7, 40’ Gillig battery electric low floor
buses and order the seven buses this year to take delivery in 2020. These funds are in the 5 year
capital plan in 2020.
August 6, 2019 - Page 69 of 109
VAIL TOWN COUNCIL AGENDA MEMO
ITEM/TOPIC: Vail Valley Drive at Vail Trails Sidewalk Extension Contract Award
BACKGROUND: In cooperation with the Vail Trails Chalet's the Town of Vail will construct a
sidewalk along Vail Valley Drive in front of the Vail Trails Chalet's. This is a critical missing piece of
sidewalk along Vail Valley Drive and will provide safer access along Vail Valley Drive and to Vail
Trails.
STAFF RECOMMENDATION: Staff recommends the Town Council directs the Town Manager
to enter into a contract with Icon, Inc. in the amount of $92,402.60, in a form approved by the Town
Attorney; and to enter into a reimbursement agreement with Vail Trail’s in the amount of $20,403.40
in a form approved by the Town Attorney.
ATTACHMENTS:
Description
Memo
August 6, 2019 - Page 70 of 109
To: Town Council
From: Public Works Department
Date: August 6, 2018
Subject: Vail Valley Drive at Vail Trails Sidewalk Extension Project Award
I. SUMMARY
The Town of Vail, in cooperation with Vail Trails Chalet’s, publically bid the Vail Valley
Drive at Vail Trails Sidewalk Extension Project this past spring. We received two bids
well over the project budget and estimate.
In an effort to keep the project moving forward the Town developed a Value Engineered
option and worked with the bidding contractors to develop a viable project. The final VE
bid received that was within budget was from Icon, Inc. in the amount of $92,406.00
Town of Vail Cost $72,002.60
Vail Trail’s Cost $20,403.40
The Town’s project budget is $85,000.
II. STAFF RECOMMENDATION
Staff recommends the Town Council directs the Town Manager to enter into a contract
with Icon, Inc. in the amount of $92,402.60, in a form approved by the Town Attorney;
and to enter into a reimbursement agreement with Vail Trail’s in the amount of
$20,403.40 in a form approved by the Town Attorney.
August 6, 2019 - Page 71 of 109
VAIL TOWN COUNCIL AGENDA MEMO
ITEM/TOPIC: Red Sandstone Parking Structure Update
PRESENTER(S): Greg Hall, Public Works Director
August 6, 2019 - Page 72 of 109
VAIL TOWN COUNCIL AGENDA MEMO
ITEM/TOPIC: Civic Area Plan Update
PRESENTER(S): Matt Gennett, Community Development Director
ACTION REQUESTED OF COUNCIL: Staff asks Council to review the presentation and
provide direction to the project team.
BACKGROUND: Following up from our last update to Council on July 16, 2019, this
presentation will focus on the remaining timeline and work program for the plan, a description of
how the third engagement window will rollout and function, and the eleven key elements of the plan.
ATTACHMENTS:
Description
Staff Memorandum
Power Point Presentation
August 6, 2019 - Page 73 of 109
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August 6, 2019 - Page 74 of 109
Town of Vail Civic Area Plan
Town Council Update #6
August 6, 2019
August 6, 2019 - Page 75 of 109
Today’s Agenda
Timeline/work program
Community Engagement Window #3
Key Elements of the Plan
•Re-development of Dobson
•Multi-purpose events facility
•Circulation around Charter/Dobson
•South Frontage Road
•Town Hall
August 6, 2019 - Page 76 of 109
TC Update
August 20
Timeline/
Work Program
August 6, 2019 - Page 77 of 109
Timeline/
Work Program
Formulating plan/key elements/testing ideas/design
considerations/next steps/etc.
Updated cost estimates
Funding scenarios
Civil and traffic considerations
Potential phasing
August 6, 2019 - Page 78 of 109
Timeline/
Work Program
August 20th Town Council Work Session
August 26th PEC Work Session
September 16th Release of Plan
September 23rd PEC Formal Review
October 8th Town Council Formal Review
October 22nd Town Council Formal Review
November 5th as needed
August 6, 2019 - Page 79 of 109
Community Engagement
Window #3
August 6, 2019 - Page 80 of 109
Approach and results of Window #1
•High level information and questions
•Asked about issues/concerns and opportunities/desires
•11 key takeaways
Approach and results of Window #2
•Shared sketches of ideas
•Asked how ideas responded to “what we heard”
•Generally supportive responses to ideas
Community Engagement
Window #3
August 6, 2019 - Page 81 of 109
Approach to Window #3
EngageVail
•Keep at a high level
•Frame discussion around 11 key takeaways from Window #1
•Present sketch of potential master plan concept
Pop-ups
Community Engagement
Window #3
August 6, 2019 - Page 82 of 109
Improve and expand parking and accessibility throughout.
Improve pedestrian access, safety, aesthetics.
Improve community green spaces, integrate local art.
Upgrade Dobson Ice Arena: expand its uses (evaluate the need
for a second sheet of ice/multi-use), improve its aesthetics.
Keep the Vail Public Library where it is; link it with Dobson Ice
Arena.
11 Key
Takeaways
Community Engagement
Window #3
August 6, 2019 - Page 83 of 109
Improve the Municipal Complex aesthetics or
relocate/redevelop site.
Better utilize the Charter Bus Lot.
Implement a community facility with flexible space for multi-
function events, community gatherings, performing arts,
recreation.
Support the active community with outdoor recreation spaces.
Explore housing opportunities.
Advocate public-private partnerships within the civic area.
11 Key
Takeaways
Community Engagement
Window #3
August 6, 2019 - Page 84 of 109
Community Engagement
Window #3
August 6, 2019 - Page 85 of 109
Community Engagement
Window #3
August 6, 2019 - Page 86 of 109
Key elements of the Plan •Re-development of Dobson
•Multi-purpose events facility
•Circulation around
Charter/Dobson
•South Frontage Road
•Town Hall
August 6, 2019 - Page 87 of 109
Re-development of Dobson
What we heard on July 18th . . . .
•Demo Dobson
•Develop new “utilitarian rink”
•Limited support for 2nd sheet
•Interest in understanding feasibility of ice w/in
multi-use facility
August 6, 2019 - Page 88 of 109
Re-development of Dobson
August 6, 2019 - Page 89 of 109
Re-development of Dobson Limitations of a utilitarian rink/VRD
August 6, 2019 - Page 90 of 109
Re-development of Dobson
Feasibility of ice within a multi-use events facility
•Spatial limitations
•Design challenges/implications
•Goals for a multi-use events facility
August 6, 2019 - Page 91 of 109
Re-development of Dobson
August 6, 2019 - Page 92 of 109
Re-development of Dobson
Design challenges/implications
•Footprint of rink “drives” design
•Inability to demise event space
•Relationship of uses
•Climate and Acoustics
•Volume of space
•Turnover time (ice) and flooring
•Materials/quality of finishes
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Re-development of Dobson
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Re-development of Dobson
NHL SheetDobson footprint
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Re-development of Dobson
What we envisioned Plan would say . . .
•Demo Dobson
•New arena with many upgrades
•Arena utilized primarily for ice
•Special events similar to past
•Outline potential program elements, rec potential
•Connectivity with Charter site
•Parking/Drop-off
Question –are we on right track with Dobson?
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Multi-purpose events facility
What we heard on July 18th . . . .
•Strong support for a multi-purpose facility
•Strong emphasis on “community” uses
•A facility that can be the heart of the Civic Area, a hub, a catalyst
Question -what is the most suitable location?
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Multi-purpose events facility
Charter/Dobson site and Municipal Building site
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Multi-purpose events facility
Charter/Dobson
The Potential
Better connectivity
Synergy with Dobson
Potential anchor to Civic Area
Larger site area
Potential for combining sites
Proximity to parking
The Challenges
Access/carrying capacity
Existing uses at Charter
Municipal Site
The Potential
SFR opportunity
The Challenges
Isolated
Lack of synergy
Limited site area
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Multi-purpose events facility
Question –does Council agree with Charter/Dobson location?
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Circulation around Charter/Dobson
The Problem
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Circulation around Charter/Dobson
The Solution
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South Frontage Road
What we heard on July 18th . . .
•Some interest
•Include both options in Plan
Question -If MU events facility
is at Charter/Dobson, is there a
reason to move SFR?
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South Frontage Road
Reasons to re-locate SFR:
•Improved connectivity for
other potential uses
•Improve quality of sites for
potential private development
•DDA and land lease potential
to support bonds
Implications:
•Need for new Police
Department
Question –do we drop idea of SFR re-location?
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Town Hall
What we heard on July 18th . . .
•Varied opinions of location of Town Hall
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Town Hall
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Town Hall
Are we on the right track with Town Hall?
Police Department
to remainNew Admin/Com Dev
Potential housing or
other development
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Next Steps
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VAIL TOWN COUNCIL AGENDA MEMO
ITEM/TOPIC: Adjournment 7:50 p.m. (estmiate)
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