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HomeMy WebLinkAbout2020-02-18 Agenda and Supporting Documentation Town Council Evening Meeting Agenda VAIL TO W N C O U N C IL R E G U L AR ME E TIN G Evening Agenda Town Council C hambers 6:00 PM, February 18, 2020 Notes: Times of items are approximate, subject to c hange, and cannot be relied upon to determine what time C ounc il 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 conc ern, and any items that are not on the agenda. Please attempt to keep c omments to three minutes; time limits established are to provide efficienc y in the c onduct of the meeting and to allow equal opportunity for everyone wishing to speak. 1.Citizen Participation (10 min.) 2.Any action as a result of executive session 3.Consent Agenda (5 min.) 3.1.Resolution No. 5, Series of 2020, A Resolution Approving a Grant Agreement with Colorado Department of Transportation for Transit Facility Electric Service Upgrades and I nstall Charges; and Setting Forth Details in Regard Thereto. Background: The Town of Vail is in the process of replacing the bus fleet to battery electric buses. This project relates to the infrastructure needed to upgrade the Town bus barn to support depot charging of a battery-electric bus fleet. The Colorado Department of Transportation is supporting this project with 2020 FA S TE R funds. The agreement outlines both parties responsibilities. Staff Recommendation: Authorize the Town Manager to enter into the Grant Agreement with Colorado Department of Transportation in a form approvded by the Town Attorney. 3.2.Grand View at Lionshead Management Agreement Background: Management contract between Town of Vail and Donovan Pavilion Management, I nc. for services managing the Grand View meeting space at the Lionshead Welcome Center. Staff Recommendation: Authorize the Town Manager to enter into a five year agreement with Donovan Pavilion Management, I nc for managing the Grand View meeting space at the Lionshead W elcome Center. 3.3.J ohn F. Donovan Pavilion Management Agreement Background: Management contract between Town of Vail and Donovan Pavilion Management, I nc. for services associated with managing Donovan Pavilion. February 18, 2020 - Page 1 of 121 Staff Recommendation: Authorize the Town Manager to enter into a five year agreement with Donovan Pavilion Management, I nc for services associated with managing the Donovan Pavilion. 3.4.Vail 2020 Overlay Contract Award Background: Staff received 3 bids for the Vail 2020 Overlay Project from 360 Paving, Elam Construction and United Companies. The project is budgeted with the Capital Street Maintenance budget and is within the engineer ’s estimate. Roads included in this year ’s asphalt overlay project include West Lionshead Circle, East Lionshead Circle, W est Meadow Drive and Bighorn Road from Exit 180 to Pitkin Creek. The project is scheduled to be completed by J une 18, 2020. Staff Recommendation: Authorize the Town Manager to enter into an agreement, in a form approved by the Town Attorney, with 360 Paving L L C to complete the Vail 2020 Overlay Project in the amount not to exceed $340,000.00. 3.5.Powabunga Music Festival Contract Award Background: The Commission of Special Events granted funding in 2020 to the event producer Full Send Productions in the amount of $79,790 for the Powabunga music festival in April. I t is Vail Town policy that the Town Council has to authorize the Town Manger to enter into agreements above $50,000. Staff Recommendation: Authorize the Town Manager to enter into an a funding agreement in a form approved by the Town Attorney, with event producer Powabunga in an amount not to exceed $79,790. 3.6.Burton US Open Funding Agreement Award Background: The Town Council granted funding in 2020 to Burton in the amount of $490,000 for the Burton US Open Event in February. I t is Vail Town policy that the Town Council has to authorize the Town Manger to enter into agreements above $50,000 Staff Recommendation: Authorize the Town Manager to enter into an a funding agreement in a form approved by the Town Attorney, with event producer Burton in an amount not to exceed $490,000. 3.7.Taste of Vail Funding Agreement Award Background: The Commission on Special Events granted funding in 2020 to Taste of Vail in the amount of $55,000 for the Taste of Vail Event in April. I t is Vail Town policy that the Town Council has to authorize the Town Manger to enter into agreements above $50,000 Staff Recommendation: Authorize the Town Manager to enter into an a funding agreement on a form approved by the Town Attorney, with event producer Taste of Vail in an amount not to exceed $55,000. 4.Town Manager Report (10 min.) 4.1.Spring Back to Vail Update 5.Presentations / Discussion 5.1.2019 Deed-Restricted Employee Housing Compliance Status Report 10 min. Presenter(s): George Ruther, Housing Director and Lynne Campbell, Housing Coordinator February 18, 2020 - Page 2 of 121 Background: Annually, the Town of Vail Housing Department is charged with verifying compliance of deed-restricted properties in the Town of Vail. There are 888 deed-restricted properties requiring verification. As a courtesy, Housing staff sent affidavit forms to deed-restricted property owners on December 13, 2019 reminding each of their February 1 obligation to provide documentation demonstrating compliance. As of the February 1 deadline 57%, or 501 deed-restricted units have complied. 6.Adjournment 6.1.Adjournment 6:35 pm estimate Meeting agendas and materials can be acc es s ed prior to meeting day on the Town of Vail webs ite www.vailgov.com. All town c ouncil meetings will be streamed live by High F ive Ac cess Media and available for public viewing as the meeting is happening. T he meeting videos are als o posted to High F ive Ac cess Media website the week following meeting day, www.highfivemedia.org. P leas e c all 970-479-2136 for additional information. S ign language interpretation is available upon reques t with 48 hour notification dial 711. February 18, 2020 - Page 3 of 121 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: Resolution No. 5, Series of 2020, A Resolution A pproving a Grant A greement with Colorado Department of Transportation for Transit Facility E lectric Service Upgrades and I nstall Charges; and S etting F orth Details in Regard T hereto. B AC K G RO UND: The Town of Vail is in the process of replacing the bus fleet to battery electric buses. This project relates to the infrastructure needed to upgrade the Town bus barn to support depot charging of a battery-electric bus fleet. The Colorado Department of Transportation is supporting this project with 2020 FA S T E R funds. T he agreement outlines both parties responsibilities. S TAF F RE C O M M E ND AT IO N: A uthorize the Town Manager to enter into the Grant Agreement with Colorado Department of Transportation in a form approvded by the Town Attorney. AT TAC H ME N TS: Description Resolution No. 5, Series of 2020 February 18, 2020 - Page 4 of 121 Resolution No. 38, Series 2014 RESOLUTION NO. 5 Series of 2020 A RESOLUTION APPROVING A GRANT AGREEMENT WITH COLORADO DEPARTMENT OF TRANSPORTATION FOR TRANSIT FACILITY ELECTRIC SERVICE UPGRADES AND INSTALL CHARGES; AND SETTING FORTH DETAILS IN REGARD THERETO. WHEREAS, the Town of Vail (the “Town”) is in the process of replacing the bus fleet to battery electric buses (the “project”); WHEREAS, this project relates to the infrastructure needed to upgrade the Town bus bard to support depot charging of a battery-electric bus fleet; WHEREAS, Colorado Department of Transportation (“CDOT”) is supporting this project with a 2020 FASTER funds; and WHEREAS, the Town and CDOT now wish to enter into the Grant Agreement outlining the responsibility or both parties NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: Section 1. The Council hereby approves and authorizes the Town Manager to enter into the Grant Agreement with CDOT, in substantially the same form as attached hereto as Exhibit A and in a form approved by the Town Attorney. Section 2. This Resolution shall take effect immediately upon its passage. INTRODUCED, PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Vail held this 18th day of February 2020. _________________________ Dave Chapin, Town Mayor ATTEST: _____________________________ Tammy Nagel, Town Clerk February 18, 2020 - Page 5 of 121 STATE OF COLORADO GRANT AGREEMENT COVER PAGE State Agency Agreement Number/ PO# Department of Transportation 20-HTR-ZL-03179 I 491002132 Grantee Agreement Performance Beginning Date TOWN OF VAIL The Effective Date Initial Agreement Expiration Date Agreement Maximum Amount December 31, 2020 FASTER Funds Fund Expenditure End Date State Fiscal Year 2020 $1,099,920.00 December 31, 2020 Local Funds $274,980.00 Agreement Authority Authority to enter into this Agreement exists in Total for all State Fiscal Years $1,099,920.00 CRS §§43-1-106, 43-1-110, 43-1-117.5, 43-2- 101(4)(c), 43-4-811(2), SB 09-108 Agreement Purpose The purpose of this Grant is for CDOT to disburse FASTER Transit Program Funds to Grantee to conduct work within the provisions of this Grant. The work to be completed under this Grant by the Grantee is more specifically described herein. Exhibits and Order of Precedence The following Exhibits and attachments are included with this Agreement: 1. Exhibit A, Statement of Work and Budget. 2. Exhibit B, Sample Option Letter. 3. Exhibit C, Title VI-Civil Rights. 4. Exhibit D, Local Agency Grant Administration Checklist. In the event of a conflict or inconsistency between this Agreement and any Exhibit or attachment, such conflict or inconsistency shall be resolved by reference to the documents in the following order of priority: 1. Exhibit C, Title VI-Civil Rights. 2. Colorado Special Provisions in §17 of the main body of this Agreement. 3. The provisions of the other sections of the main body of this Agreement. 4. Exhibit A, Statement of Work and Budget. 5. Executed Option Letters (if any). Principal Representatives For the State: For Subrecipient: Brodie Ayers Greg Hall Division of Transit and Rail TOWN OF VAIL 2829 W. Howard Pl. 75 SOUTH FRONTAGE ROAD Denver, CO 80204 VAIL, CO 81657-5096 brodie.ayers@state.co.us ghall@vailgov.com Contract Number 20-HTR-ZL-03179/491002132 Page I of 32 Version I 0/30/19 February 18, 2020 - Page 6 of 121 SIGNATURE PAGE THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT Each person signing this Agreement represents and warrants that the signer is duly authorized to execute this Agreement and to bind the Party authorizing such signature. GRANTEE STATE OF COLORADO TOWN OF VAIL Jared S. Polis, Governor Department of Transportation Shoshana M. Lew, Executive Director By: Name & Title of Person Signing for Grantee By: David Krutsinger, Director Division of Transit and Rail Date: Date: 2nd State or Grantee Signature if needed LEGAL REVIEW Philip J. Weiser, Attorney General By: Assistant Attorney General By: Print Name of Authorized Individual Date: Date: In accordance with §24-30-202, C.R.S., this Agreement is not valid until signed and dated below by the State Controller or an authorized delegate. ST ATE CONTROLLER Robert Jaros, CPA, MBA, JD By: Department of Transportation Effective Date: Contract Number 20-HTR-ZL-03179/491002132 Page 2 of32 Version I 0/30/19 February 18, 2020 - Page 7 of 121 TABLE OF CONTENTS 1. PARTIES ................................................................................................................................................ 3 2. TERM AND EFFECTIVE DA TE .......................................................................................................... 3 3. DEFINITIONS ........................................................................................................................................ 4 4. STATEMENT OF WORK ...................................................................................................................... 6 5. PAYMENTS TO GRANTEE ................................................................................................................. 6 6. REPORTING -NOTIFICATION ........................................................................................................... 7 7. GRANTEE RECORDS ........................................................................................................................... 8 8. CONFIDENTIAL INFORMATION -STATE RECORDS .................................................................... 9 9. CONFLICTS OF INTEREST ............................................................................................................... 10 10. INSURANCE ........................................................................................................................................ 10 11. BREACH OF AGREEMENT ............................................................................................................... 11 12. REMEDIES ........................................................................................................................................... 12 13. DISPUTE RESOLUTION .................................................................................................................... 13 14. NOTICES and REPRESENTATIVES .................................................................................................. 13 15. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION ...................................................... 14 16. GENERAL PROVISIONS .................................................................................................................... 14 17. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3) ..................................... 16 1. PARTIES This Agreement is entered into by and between Grantee named on the Cover Page for this Agreement (the "Grantee"), and the ST A TE OF COLORADO acting by and through the State agency named on the Cover Page for this Agreement (the "State"). Grantee and the State agree to the terms and conditions in this Agreement. 2. TERM AND EFFECTIVE DATE A. Effective Date This Agreement shall not be valid or enforceable until the Effective Date, and the Grant Funds shall be expended by the Fund Expenditure End Date shown on the Cover Page for this Agreement. The State shall not be bound by any provision of this Agreement before the Effective Date, and shall have no obligation to pay Grantee for any Work performed or expense incurred before the Effective Date, except as described in §5.D, or after the Fund Expenditure End Date. If the Work will be performed in multiple phases, the period of performance start and end date of each phase is detailed under the Project Schedule in Exhibit A. B. Initial Term The Parties' respective performances under this Agreement shall commence on the Agreement Performance Beginning Date shown on the Cover Page for this Agreement and shall terminate on the Initial Agreement Expiration Date shown on the Cover Page for this Agreement (the "Initial Term") unless sooner terminated or further extended in accordance with the terms of this Agreement. C. Extension Terms -State's Option The State, at its discretion, shall have the option to extend the performance under this Agreement beyond the Initial Term for a period, or for successive periods, of one year or less at the same rates and under the same terms specified in this Agreement (each such period an "Extension Term"). In order to exercise this option, the State shall provide written notice to Grantee in a form substantially equivalent to Sample Option Letter attached to this Agreement. D. End of Term Extension If this Agreement approaches the end of its Initial Term, or any Extension Term then in place, the State, at its discretion, upon written notice to Grantee in a form substantially equivalent to the Sample Option Letter attached to this Agreement, may unilaterally extend such Initial Term or Extension Term for a period not to exceed two months (an "End of Term Extension"), regardless of whether additional Extension Terms are available or not. The provisions of this Agreement in effect when such notice is given shall remain in effect during the End of Term Extension. The End of Term Extension shall automatically terminate upon execution of a replacement Agreement or modification extending the total term of this Agreement. Contract Number 20-HTR-ZL-03179/491002132 Page 3 of32 Version I 0/30/19 February 18, 2020 - Page 8 of 121 I I I l l ! I i ·I l I ,1 l I l l ! t j t l 1 l I 1 I l 1 I t E. Early Termination in the Public Interest The State is entering into this Agreement to serve the public interest of the State of Colorado as determined by its Governor, General Assembly, or Courts. If this Agreement ceases to further the public interest of the State, the State, in its discretion, may terminate this Agreement in whole or in part. A determination that this Agreement should be terminated in the public interest shall not be equivalent to a State right to terminate for convenience. This subsection shall not apply to a termination of this Agreement by the State for Breach of Agreement by Grantee, which shall be governed by §12.A.i. 1. Method and Content The State shall notify Grantee of such termination in accordance with §14. The notice shall specify the effective date of the termination and whether it affects all or a portion of this Agreement, and shall include, to the extent practicable, the public interest justification for the termination. ii. Obligations and Rights Upon receipt of a termination notice for termination in the public interest, Grantee shall be subject to the rights and obligations set forth in §12.A.i.a. iii. Payments If the State terminates this Agreement in the public interest, the State shall pay Grantee an amount equal to the percentage of the total reimbursement payable under this Agreement that corresponds to the percentage of Work satisfactorily completed and accepted, as determined by the State, less payments previously made. Additionally, if this Agreement is less than 60% completed, as determined by the State, the State may reimburse Grantee for a portion of actual out-of-pocket expenses, not otherwise reimbursed under this Agreement, incurred by Grantee which are directly attributable to the uncompleted portion of Grantee's obligations, provided that the sum of any and all reimbursement shall not exceed the Grant Maximum Amount payable to Grantee hereunder. F. Grantee's Termination Under Federal Requirements Grantee may request termination of this Grant by sending notice to the State, or to the Federal Awarding Agency with a copy to the State, which includes the reasons for the termination and the effective date of the termination. If this Grant is terminated in this manner, then Grantee shall return any advanced payments made for work that will not be performed prior to the effective date of the termination. 3. DEFINITIONS The following terms shall be construed and interpreted as follows: A. "Agreement" means this agreement, including all attached Exhibits, all documents incorporated by reference, all referenced statutes, rules and cited authorities, and any future modifications thereto. B. "Breach of Agreement" means the failure of a Party to perform any of its obligations in accordance with this Agreement, in whole or in part or in a timely or satisfactory manner. The institution of proceedings under any bankruptcy, insolvency, reorganization or similar law, by or against Grantee, or the appointment of a receiver or similar officer for Grantee or any of its property, which is not vacated or fully stayed within 30 days after the institution of such proceeding, shall also constitute a breach. If Grantee is debarred or suspended under §24-109-105, C.R.S., at any time during the term of this Agreement, then such debarment or suspension shall constitute a breach. C. "Budget" means the budget for the Work described in Exhibit A. D. "Business Day" means any day other than Saturday, Sunday, or a legal holiday as listed in §24-11-101(1), C.R.S. E. "CORA" means the Colorado Open Records Act, §§24-72-200.1, et seq., C.R.S. F. "Deliverable" means the outcome to be achieved or output to be provided, in the form of a tangible or intangible Good or Service that is produced as a result of Grantee's Work that is intended to be delivered by Grantee. G. "Effective Date" means the date on which this Agreement is approved and signed by the Colorado State Controller or designee, as shown on the Signature Page for this Agreement. H. "End of Term Extension" means the time period defined in §2.D. Contract Number 20-HTR-ZL-03179/491002132 Page 4 of32 Version 10/30/19 February 18, 2020 - Page 9 of 121 I. "Exhibits" means the exhibits and attachments included with this Agreement as shown on the Cover Page for this Agreement. J. "Extension Term" means the time period defined in §2.C. K. "Goods" means any movable material acquired, produced, or delivered by Grantee as set forth in this Agreement and shall include any movable material acquired, produced, or delivered by Grantee in connection with the Services. L. "Grant Funds" means the funds that have been appropriated, designated, encumbered, or otherwise made available for payment by the State under this Agreement. M. "Grant Maximum Amount" means an amount equal to the total of Grant Funds for this Agreement. N. "Incident" means any accidental or deliberate event that results in or constitutes an imminent threat of the unauthorized access, loss, disclosure, modification, disruption, or destruction of any communications or information resources of the State, which are included as part of the Work, as described in §§24-37.5-401, et seq., C.R.S. Incidents include, without limitation (i) successful attempts to gain unauthorized access to a State system or State Records regardless of where such information is located; (ii) unwanted disruption or denial of service; (iii) the unauthorized use of a State system for the processing or storage of data; or (iv) changes to State system hardware, firmware, or software characteristics without the State's knowledge, instruction, or consent. 0. "Initial Term" means the time period defined in §2.B. P. "Matching Funds" (Local Funds) means the funds provided by Grantee as a match required to receive the Grant Funds. Q. "Party" means the State or Grantee, and "Parties" means both the State and Grantee. R. "PII" means personally identifiable information including, without limitation, any information maintained by the State about an individual that can be used to distinguish or trace an individual's identity, such as name, social security number, date and place of birth, mother's maiden name, or biometric records. PII includes, but is not limited to, all information defined as personally identifiable information in §§24-72-501 and 24- 73-101, C.R.S. S. "Services" means the services to be performed by Grantee as set forth in this Agreement, and shall include any services to be rendered by Grantee in connection with the Goods. T. "State Confidential Information" means any and all State Records not subject to disclosure under CORA. State Confidential Information shall include, but is not limited to PII, and State personnel records not subject to disclosure under CORA. State Confidential Information shall not include information or data concerning individuals that is not deemed confidential but nevertheless belongs to the State, which has been communicated, furnished, or disclosed by the State to Grantee which (i) is subject to disclosure pursuant to CORA; ( ii) is already known to Grantee without restrictions at the time of its disclosure to Grantee; (iii) is or subsequently becomes publicly available without breach of any obligation owed by Grantee to the State; (iv) is disclosed to Grantee, without confidentiality obligations, by a third party who has the right to disclose such information; or (v) was independently developed without reliance on any State Confidential Information. U. "State Fiscal Rules" means the fiscal rules promulgated by the Colorado State Controller pursuant to §24- 30-202(13)(a), C.R.S. V. "State Fiscal Year" means a 12 month period beginning on July 1 of each calendar year and ending on June 30 of the following calendar year. If a single calendar year follows the term, then it means the State Fiscal Year ending in that calendar year. W. "State Records" means any and all State data, information, and records, regardless of physical form. X. "Subcontractor" means any third party engaged by Grantee to aid in performance of the Work. "Subcontractor" also includes sub-grantees of Grant Funds. Y. "Work" means the Goods delivered and Services performed pursuant to this Agreement. Z. "Work Product" means the tangible and intangible results of the Work, whether finished or unfinished, including drafts. Work Product includes, but is not limited to, documents, text, software (including source code), research, reports, proposals, specifications, plans, notes, studies, data, images, photographs, negatives, pictures, drawings, designs, models, surveys, maps, materials, ideas, concepts, know-how, information, and Contract Number 20-HTR-ZL-03179/491002132 Page 5 of 32 Version 10/30/19 February 18, 2020 - Page 10 of 121 any other results of the Work. "Work Product" does not include any material that was developed prior to the Effective Date that is used, without modification, in the performance of the Work. Any other term used in this Agreement that is defined elsewhere in this Agreement or in an Exhibit shall be construed and interpreted as defined in that section. 4. STATEMENT OF WORK Grantee shall complete the Work as described in this Agreement and in accordance with the provisions of Exhibit A. The State shall have no liability to compensate Grantee for the delivery of any goods or the performance of any services that are not specifically set forth in this Agreement. 5. PAYMENTS TO GRANTEE A. Grant Maximum Amount Payments to Grantee are limited to the unpaid, obligated balance of the Grant Funds. The State shall not pay Grantee any amount under this Agreement that exceeds the Grant Maximum Amount for that State Fiscal Year shown on the Cover Page of this Agreement as "FASTER Funds Maximum Amount". B. Payment Procedures 1. Invoices and Payment a. The State shall pay Grantee in the amounts and in accordance with the conditions set forth in Exhibit A. b. Grantee shall initiate payment requests by invoice to the State, in a form and manner approved by the State. c. Any advance payment allowed under this Agreement, shall comply with State Fiscal Rules and be made in accordance with the provisions of this Agreement and its Exhibits. Eligibility and submission for advance payment is subject to State approval and must include approved documentation in the form and manner set forth and approved by the State. d. The State shall pay each invoice within 45 days following the State's receipt of that invoice, so long as the amount invoiced correctly represents Work completed by Grantee and previously accepted by the State during the term that the invoice covers. If the State determines that the amount of any invoice is not correct, then Grantee shall make all changes necessary to correct that invoice. e. The acceptance of an invoice shall not constitute acceptance of any Work performed or Deliverables provided under this Agreement. ii. Interest Amounts not paid by the State within 45 days of the State's acceptance of the invoice shall bear interest on the unpaid balance beginning on the 45th day at the rate of 1 % per month, as required by §24-30- 202(24 )(a), C.R.S., until paid in full; provided, however, that interest shall not accrue on unpaid amounts that the State disputes in writing. Grantee shall invoice the State separately for accrued interest on delinquent amounts, and the invoice shall reference the delinquent payment, the number of days' interest to be paid and the interest rate. iii. Payment Disputes If Grantee disputes any calculation, determination or amount of any payment, Grantee shall notify the State in writing of its dispute within 30 days following the earlier to occur of Grantee's receipt of the payment or notification of the determination or calculation of the payment by the State. The State will review the information presented by Grantee and may make changes to its determination based on this review. The calculation, determination or payment amount that results from the State's review shall not be subject to additional dispute under this subsection. No payment subject to a dispute under this subsection shall be due until after the State has concluded its review, and the State shall not pay any interest on any amount during the period it is subject to dispute under this subsection. 1v. Available Funds-Contingency-Termination The State is prohibited by law from making commitments beyond the term of the current State Fiscal Year. Payment to Grantee beyond the current State Fiscal Year is contingent on the appropriation and continuing availability of Grant Funds in any subsequent year (as provided in the Colorado Special Provisions). If federal funds or funds from any other non-State funds constitute all or some of the Grant Contract Number 20-HTR-ZL-03179/491002132 Page 6 of 32 Version I 0/30/19 February 18, 2020 - Page 11 of 121 Funds, the State's obligation to pay Grantee shall be contingent upon such non-State funding continuing to be made available for payment. Payments to be made pursuant to this Agreement shall be made only from Grant Funds, and the State's liability for such payments shall be limited to the amount remaining of such Grant Funds. If State, federal or other funds are not appropriated, or otherwise become unavailable to fund this Agreement, the State may, upon written notice, terminate this Agreement, in whole or in part, without incurring further liability. The State shall, however, remain obligated to pay for Services and Goods that are delivered and accepted prior to the effective date ofnotice of termination, and this termination shall otherwise be treated as if this Agreement were terminated in the public interest as described in §2.E. C. Matching Funds Grantee shall provide Matching Funds as provided in §5.A and Exhibit A. Grantee shall have raised the full amount of Matching Funds prior to the Effective Date and shall report to the State regarding the status of such funds upon request. Grantee's obligation to pay all or any part of any Matching Funds, whether direct or contingent, only extends to funds duly and lawfully appropriated for the purposes of this Agreement by the authorized representatives of Grantee and paid into Grantee's treasury or bank account. Grantee represents to the State that the amount designated "Grantee's Matching Funds" in Exhibit A has been legally appropriated for the purposes of this Agreement by its authorized representatives and paid into its treasury or bank account. Grantee does not by this Agreement irrevocably pledge present cash reserves for payments in future fiscal years, and this Agreement is not intended to create a multiple-fiscal year debt of Grantee. If Grantee is a public entity, Grantee shall not pay or be liable for any claimed interest, late charges, fees, taxes or penalties of any nature, except as required by Grantee's laws or policies. D. Reimbursement of Grantee Costs 1. Any costs incurred by Grantee prior to the Effective Date shall not be reimbursed. ii. The State shall reimburse Grantee's allowable costs, not exceeding the Grant Maximum Amount shown on the Cover Page of this Agreement and on Exhibit A for all allowable costs described in this Agreement and shown in Exhibit A, except that Grantee may adjust the amounts between each line item of Exhibit A without formal modification to this Agreement as long as the Grantee provides notice to the State of the change, the change does not modify the Grant Maximum Amount of this Agreement or the Grant Maximum Amount for any State Fiscal Year, and the change does not modify any requirements of the Work. 111. The State shall only reimburse allowable costs described in this Agreement and shown in the Budget if those costs are: a. Reasonable and necessary to accomplish the Work and for the Goods and Services provided; and b. Equal to the actual net cost to Grantee (i.e. the price paid minus any items of value received by Grantee that reduce the cost actually incurred.) 1v. Grantee's costs for Work performed after the Fund Expenditure End Date shown on the Signature and Cover Page for this Agreement, or after any phase performance period end date for a respective phase of the Work, shall not be reimbursable. Grantee shall initiate any payment request by submitting invoices to the State in the form and manner set forth and approved by the State E. Close-Out Grantee shall close out this Award within 45 days after the Fund Expenditure End Date shown on the Cover Page for this Agreement. To complete close-out, Grantee shall submit to the State all Deliverables (including documentation) as defined in this Agreement and Grantee's final reimbursement request or invoice. The State will withhold 5% of allowable costs until all final documentation has been submitted and accepted by the State as substantially complete. 6. REPORTING -NOTIFICATION A. Quarterly Reports. In addition to any reports required pursuant to any other Exhibit, for any Agreement having a term longer than three months, Grantee shall submit, on a quarterly basis, a written report specifying progress made for each specified performance measure and standard in this Agreement. Such progress report shall be in accordance with the procedures developed and prescribed by the State. Progress reports shall be submitted Contract Number: 20-HTR-ZL-03179/491002132 Page 7 of 32 Version I 0/30/19 February 18, 2020 - Page 12 of 121 to the State not later than five Business Days following the end of each calendar quarter or at such time as otherwise specified by the State. B. Litigation Reporting If Grantee is served with a pleading or other document in connection with an action before a court or other administrative decision making body, and such pleading or document relates to this Agreement or may affect Grantee's ability to perform its obligations under this Agreement, Grantee shall, within 10 days after being served, notify the State of such action and deliver copies of such pleading or document to the State's Principal Representative identified on the Cover Page for this Agreement. C. Performance and Final Status Grantee shall submit all financial, performance and other reports to the State no later than 45 calendar days after the end of the Initial Term ifno Extension Terms are exercised, or the final Extension Term exercised by the State, containing an evaluation and review of Grantee's performance and the final status of Grantee's obligations hereunder. D. Violations Reporting Grantee shall disclose, in a timely manner, in writing to the State, all violations of State criminal law involving fraud, bribery, or gratuity violations potentially affecting the Federal Award. The State may impose any penalties for noncompliance allowed under 2 CFR Part 180 and 31 U .S.C. 3321, which may include, without limitation, suspension or debarment. 7. GRANTEE RECORDS A. Maintenance Grantee shall make, keep, maintain, and allow inspection and monitoring by the State of a complete file of all records, documents, communications, notes and other written materials, electronic media files, and communications, pertaining in any manner to the Work and the delivery of Services (including, but not limited to, the operation of programs) or Goods hereunder (collectively, the "Grantee Records"). Grantee shall maintain such records for a period of three years following the date of submission to the State of the final expenditure report, or if this Award is renewed quarterly or annually, from the date of the submission of each quarterly or annual report, respectively (the "Record Retention Period"). If any litigation, claim, or audit related to this A ward starts before expiration of the Record Retention Period, the Record Retention Period shall extend until all litigation, claims, or audit findings have been resolved and final action taken by the State or Federal Awarding Agency. The Federal Awarding Agency, a cognizant agency for audit, oversight or indirect costs, and the State, may notify Grantee in writing that the Record Retention Period shall be extended. For records for real property and equipment, the Record Retention Period shall extend three years following final disposition of such property. B. Inspection Grantee shall permit the State and any other duly authorized agent of the State to audit, inspect, examine, excerpt, copy and transcribe Grantee Records during the Record Retention Period. Grantee shall make Grantee Records available during normal business hours at Grantee's office or place of business, or at other mutually agreed upon times or locations, upon no fewer than two Business Days' notice from the State, unless the State determines that a shorter period of notice, or no notice, is necessary to protect the interests of the State. C. Monitoring The State and any other duly authorized agent of the State, in its discretion, may monitor Grantee's performance of its obligations under this Agreement using procedures as determined by the State. The State shall have the right, in its sole discretion, to change its monitoring procedures and requirements at any time during the term of this Agreement. The State shall monitor Grantee's performance in a manner that does not unduly interfere with Grantee's performance of the Work. D. Final Audit Report Grantee shall promptly submit to the State a copy of any final audit report of an audit performed on Grantee's records that relates to or affects this Agreement or the Work, whether the audit is conducted by Grantee or a third party. Contract Number 20-HTR-ZL-03179/491002132 Page 8 of32 Version I 0/30/ 19 February 18, 2020 - Page 13 of 121 8. CONFIDENTIAL INFORMATION -ST A TE RECORDS A. Confidentiality Grantee shall keep confidential, and cause all Subcontractors to keep confidential, all State Records, unless those State Records are publicly available. Grantee shall not, without prior written approval of the State, use, publish, copy, disclose to any third party, or permit the use by any third party of any State Records, except as otherwise stated in this Agreement, permitted by law or approved in writing by the State. Grantee shall provide for the security of all State Confidential Information in accordance with all applicable laws, rules, policies, publications, and guidelines. Grantee shall immediately forward any request or demand for State Records to the State's Principal Representative identified on the Cover Page of this Agreement. B. Other Entity Access and Nondisclosure Agreements Grantee may provide State Records to its agents, employees, assigns and Subcontractors as necessary to perform the Work, but shall restrict access to State Confidential Information to those agents, employees, assigns and Subcontractors who require access to perform their obligations under this Agreement. Grantee shall ensure all such agents, employees, assigns, and Subcontractors sign agreements containing nondisclosure provisions at least as protective as those in this Agreement, and that the nondisclosure provisions are in force at all times the agent, employee, assign or Subcontractor has access to any State Confidential Information. Grantee shall provide copies of those signed nondisclosure provisions to the State upon execution of the nondisclosure provisions ifrequested by the State. C. Use, Security, and Retention Grantee shall use, hold and maintain State Confidential Information in compliance with any and all applicable laws and regulations only in facilities located within the United States, and shall maintain a secure environment that ensures confidentiality of all State Confidential Information. Grantee shall provide the State with access, subject to Grantee's reasonable security requirements, for purposes of inspecting and monitoring access and use of State Confidential Information and evaluating security control effectiveness. Upon the expiration or termination of this Agreement, Grantee shall return State Records provided to Grantee or destroy such State Records and certify to the State that it has done so, as directed by the State. If Grantee is prevented by law or regulation from returning or destroying State Confidential Information, Grantee warrants it will guarantee the confidentiality of, and cease to use, such State Confidential Information. D. Incident Notice and Remediation If Grantee becomes aware of any Incident, Grantee shall notify the State immediately and cooperate with the State regarding recovery, remediation, and the necessity to involve law enforcement, as determined by the State. Unless Grantee can establish that Grantee, and its agents, employees, and Subcontractors are not the cause or source of the Incident, Grantee shall be responsible for the cost of notifying each person who may have been impacted by the Incident. After an Incident, Grantee shall take steps to reduce the risk of incurring a similar type of Incident in the future as directed by the State, which may include, but is not limited to, developing and implementing a remediation plan that is approved by the State at no additional cost to the State. The State may adjust or direct modifications to this plan, in its sole discretion and Grantee shall make all modifications as directed by the State. If Grantee cannot produce its analysis and plan within the allotted time, the State, in its sole discretion, may perform such analysis and produce a remediation plan, and Grantee shall reimburse the State for the reasonable costs thereof. The State may, in its sole discretion and at Grantee's sole expense, require Grantee to engage the services of an independent, qualified, State-approved third party to conduct a security audit. Grantee shall provide the State with the results of such audit and evidence of Grantee's planned remediation in response to any negative findings. E. Data Protection and Handling Grantee shall ensure that all State Records and Work Product in the possession of Grantee or any Subcontractors are protected and handled in accordance with the requirements of this Agreement, including the requirements of any Exhibits hereto, at all times. As used in this section, the protections afforded Work Product only apply to Work Product that requires confidential treatment. F. Safeguarding PII If Grantee or any of its Subcontractors will or may receive PII under this Agreement, Grantee shall provide for the security of such PII, in a manner and form acceptable to the State, including, without limitation, State non-disclosure requirements, use of appropriate technology, security practices, computer access security, data access security, data storage encryption, data transmission encryption, security inspections, and audits. Contract Number: 20-HTR-ZL-03179/491002132 Page 9 of32 Version 10/30/19 February 18, 2020 - Page 14 of 121 Grantee shall be a "Third-Party Service Provider" as defined in §24-73-103(l)(i), C.R.S., and shall maintain security procedures and practices consistent with §§24-73-101, et seq., C.R.S. 9. CONFLICTS OF INTEREST A. Actual Conflicts of Interest Grantee shall not engage in any business or activities, or maintain any relationships that conflict in any way with the full performance of the obligations of Grantee under this Agreement. Such a conflict of interest would arise when a Grantee or Subcontractor's employee, officer or agent were to offer or provide any tangible personal benefit to an employee of the State, or any member of his or her immediate family or his or her partner, related to the award of, entry into or management or oversight of this Agreement. B. Apparent Conflicts oflnterest Grantee acknowledges that, with respect to this Agreement, even the appearance of a conflict of interest shall be harmful to the State's interests. Absent the State's prior written approval, Grantee shall refrain from any practices, activities or relationships that reasonably appear to be in conflict with the full performance of Grantee's obligations under this Agreement. C. Disclosure to the State If a conflict or the appearance of a conflict arises, or if Grantee is uncertain whether a conflict or the appearance of a conflict has arisen, Grantee shall submit to the State a disclosure statement setting forth the relevant details for the State's consideration. Failure to promptly submit a disclosure statement or to follow the State's direction in regard to the actual or apparent conflict constitutes a breach of this Agreement. 10. INSURANCE Grantee shall obtain and maintain, and ensure that each Subcontractor shall obtain and maintain, insurance as specified in this section at all times during the term of this Agreement. All insurance policies required by this Agreement that are not provided through self-insurance shall be issued by insurance companies as approved by the State. A. Workers' Compensation Workers' compensation insurance as required by state statute, and employers' liability insurance covering all Grantee or Subcontractor employees acting within the course and scope of their employment. B. General Liability Commercial general liability insurance covering premises operations, fire damage, independent contractors, products and completed operations, blanket contractual liability, personal injury, and advertising liability with minimum limits as follows: i. $1,000,000 each occurrence; ii. $1,000,000 general aggregate; 111. $1,000,000 products and completed operations aggregate; and 1v. $50,000 any 1 fire. C. Automobile Liability Automobile liability insurance covering any auto (including owned, hired and non-owned autos) with a minimum limit of$1,000,000 each accident combined single limit. D. Protected Information Liability insurance covering all loss of State Confidential Information, such as PII, PHI, PCI, Tax Information, and CJI, and claims based on alleged violations of privacy rights through improper use or disclosure of protected information with minimum limits as follows: i. $1,000,000 each occurrence; and ii. $2,000,000 general aggregate. E. Professional Liability Insurance Professional liability insurance covering any damages caused by an error, omission or any negligent act with minimum limits as follows: Contract Number 20-HTR-ZL-03179/491002132 Page IO of32 Version 10/30/19 February 18, 2020 - Page 15 of 121 1. $1,000,000 each occurrence; and 11. $1,000,000 general aggregate. F. Crime Insurance Crime insurance including employee dishonesty coverage with minimum limits as follows: 1. $1,000,000 each occurrence; and ii. $1,000,000 general aggregate. G. Additional Insured The State shall be named as additional insured on all commercial general liability policies (leases and construction contracts require additional insured coverage for completed operations) required of Grantee and Subcontractors. H. Primacy of Coverage Coverage required of Grantee and each Subcontractor shall be primary over any insurance or self-insurance program carried by Grantee or the State. I. Cancellation All insurance policies shall include prov1s10ns preventing cancellation or non-renewal, except for cancellation based on non-payment of premiums, without at least 30 days prior notice to Grantee and Grantee shall forward such notice to the State in accordance with §14 within 7 days of Grantee's receipt of such notice. J. Subrogation Waiver All insurance policies secured or maintained by Grantee or its Subcontractors in relation to this Agreement shall include clauses stating that each carrier shall waive all rights ofrecovery under subrogation or otherwise against Grantee or the State, its agencies, institutions, organizations, officers, agents, employees, and volunteers. K. Public Entities If Grantee is a "public entity" within the meaning of the Colorado Governmental Immunity Act, §24-10-101, et seq., C.R.S. (the "GIA"), Grantee shall maintain, in lieu of the liability insurance requirements stated above, at all times during the term of this Agreement such liability insurance, by commercial policy or self- insurance, as is necessary to meet its liabilities under the GIA. If a Subcontractor is a public entity within the meaning of the GIA, Grantee shall ensure that the Subcontractor maintain at all times during the terms of this Grantee, in lieu of the liability insurance requirements stated above, such liability insurance, by commercial policy or self-insurance, as is necessary to meet the Subcontractor's obligations under the GIA. L. Certificates For each insurance plan provided by Grantee under this Agreement, Grantee shall provide to the State certificates evidencing Grantee's insurance coverage required in this Agreement prior to the Effective Date. Grantee shall provide to the State certificates evidencing Subcontractor insurance coverage required under this Agreement prior to the Effective Date, except that, if Grantee's subcontract is not in effect as of the Effective Date, Grantee shall provide to the State certificates showing Subcontractor insurance coverage required under this Agreement within seven Business Days following Grantee's execution of the subcontract. No later than 15 days before the expiration date of Grantee's or any Subcontractor's coverage, Grantee shall deliver to the State certificates of insurance evidencing renewals of coverage. At any other time during the term of this Agreement, upon request by the State, Grantee shall, within seven Business Days following the request by the State, supply to the State evidence satisfactory to the State of compliance with the provisions of this section. 11. BREACH OF AGREEMENT In the event of a Breach of Agreement, the aggrieved Party shall give written notice of Breach of Agreement to the other Party. If the notified Party does not cure the breach, at its sole expense, within 30 days after the delivery of written notice, the Party may exercise any of the remedies as described in §12 for that Party. Notwithstanding any provision of this Agreement to the contrary, the State, in its discretion, need not provide notice or a cure period and may immediately terminate this Agreement in whole or in part or institute any other remedy in this Agreement in order to protect the public interest of the State; or if Grantee is debarred Contract Number 20-HTR-ZL-03179/491002132 Page 11 of32 Version 10/30/19 February 18, 2020 - Page 16 of 121 or suspended under §24-109-105, C.R.S., the State, in its discretion, need not provide notice or cure period and may terminate this Agreement in whole or in part or institute any other remedy in this Agreement as of the date that the debarment or suspension takes effect. 12. REMEDIES A. State's Remedies If Grantee is in breach under any provision of this Agreement and fails to cure such breach, the State, following the notice and cure period set forth in §11, shall have all of the remedies listed in this section in addition to all other remedies set forth in this Agreement or at law. The State may exercise any or all of the remedies available to it, in its discretion, concurrently or consecutively. 1. Termination for Breach of Agreement In the event of Grantee's uncured breach, the State may terminate this entire Agreement or any part of this Agreement. Grantee shall continue performance of this Agreement to the extent not terminated, if any. a. Obligations and Rights To the extent specified in any termination notice, Grantee shall not incur further obligations or render further performance past the effective date of such notice, and shall terminate outstanding orders and subcontracts with third parties. However, Grantee shall complete and deliver to the State all Work not cancelled by the termination notice, and may incur obligations as necessary to do so within this Agreement's terms. At the request of the State, Grantee shall assign to the State all of Grantee's rights, title, and interest in and to such terminated orders or subcontracts. Upon termination, Grantee shall take timely, reasonable and necessary action to protect and preserve property in the possession of Grantee but in which the State has an interest. At the State's request, Grantee shall return materials owned by the State in Grantee's possession at the time of any termination. Grantee shall deliver all completed Work Product and all Work Product that was in the process of completion to the State at the State's request. b. Payments Notwithstanding anything to the contrary, the State shall only pay Grantee for accepted Work received as of the date of termination. If, after termination by the State, the State agrees that Grantee was not in breach or that Grantee's action or inaction was excusable, such termination shall be treated as a termination in the public interest, and the rights and obligations of the Parties shall be as if this Agreement had been terminated in the public interest under §2.E. c. Damages and Withholding Notwithstanding any other remedial action by the State, Grantee shall remain liable to the State for any damages sustained by the State in connection with any breach by Grantee, and the State may withhold payment to Grantee for the purpose of mitigating the State's damages until such time as the exact amount of damages due to the State from Grantee is determined. The State may withhold any amount that may be due Grantee as the State deems necessary to protect the State against loss including, without limitation, loss as a result of outstanding liens and excess costs incurred by the State in procuring from third parties replacement Work as cover. ii. Remedies Not Involving Termination The State, in its discretion, may exercise one or more of the following additional remedies: a. Suspend Performance Suspend Grantee's performance with respect to all or any portion of the Work pending corrective action as specified by the State without entitling Grantee to an adjustment in price or cost or an adjustment in the performance schedule. Grantee shall promptly cease performing Work and incurring costs in accordance with the State's directive, and the State shall not be liable for costs incurred by Grantee after the suspension of performance. b. Withhold Payment Withhold payment to Grantee until Grantee corrects its Work. Contract Number 20-HTR-ZL-03 l 79/491002132 Page 12 of32 Version I 0/30/19 February 18, 2020 - Page 17 of 121 c. Deny Payment Deny payment for Work not performed, or that due to Grantee's actions or inactions, cannot be performed or if they were performed are reasonably of no value to the State; provided, that any denial of payment shall be equal to the value of the obligations not performed. d. Removal Demand immediate removal of any of Grantee's employees, agents, or Subcontractors from the Work whom the State deems incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable or whose continued relation to this Agreement is deemed by the State to be contrary to the public interest or the State's best interest. e. Intellectual Property If any Work infringes, or if the State in its sole discretion determines that any Work is likely to infringe, a patent, copyright, trademark, trade secret or other intellectual property right, Grantee shall, as approved by the State (i) secure that right to use such Work for the State and Grantee; (ii) replace the Work with noninfringing Work or modify the Work so that it becomes noninfringing; or, (iii) remove any infringing Work and refund the amount paid for such Work to the State. B. Grantee's Remedies If the State is in breach of any provision of this Agreement and does not cure such breach, Grantee, following the notice and cure period in §11 and the dispute resolution process in §13 shall have all remedies available at law and equity. 13. DISPUTE RESOLUTION A. Initial Resolution Except as herein specifically provided otherwise, disputes concerning the performance of this Agreement which cannot be resolved by the designated Agreement representatives shall be referred in writing to a senior departmental management staff member designated by the State and a senior manager designated by Grantee for resolution. B. Resolution of Controversies If the initial resolution described in §13.A fails to resolve the dispute within 10 Business Days, Grantee shall submit any alleged breach of this Agreement by the State to the Procurement Official of the State Agency named on the Cover Page of this Agreement as described in §24-101-301(30), C.R.S., for resolution following the same resolution of controversies process as described in §§24-106-109, and 24-109-101.1 through 24-109-505, C.R.S., (collectively, the "Resolution Statutes"), except that if Grantee wishes to challenge any decision rendered by the Procurement Official, Grantee's challenge shall be an appeal to the executive director of the Department of Personnel and Administration, or their delegate, in the same manner as described in the Resolution Statutes before Grantee pursues any further action. Except as otherwise stated in this Section, all requirements of the Resolution Statutes shall apply including, without limitation, time limitations regardless of whether the Colorado Procurement Code applies to this Agreement. 14. NOTICES and REPRESENTATIVES Each individual identified as a Principal Representative on the Cover Page for this Agreement shall be the principal representative of the designating Party. All notices required or permitted to be given under this Agreement shall be in writing, and shall be delivered (A) by hand with receipt required, (B) by certified or registered mail to such Party's principal representative at the address set forth on the Cover Page for this Agreement or (C) as an email with read receipt requested to the principal representative at the email address, if any, set forth on the Cover Page for this Agreement. If a Party delivers a notice to another through email and the email is undeliverable, then, unless the Party has been provided with an alternate email contact, the Party delivering the notice shall deliver the notice by hand with receipt required or by certified or registered mail to such Party's principal representative at the address set forth on the Cover Page for this Agreement. Either Party may change its principal representative or principal representative contact information, or may designate specific other individuals to receive certain types of notices in addition to or in lieu of a principal representative, by notice submitted in accordance with this section without a formal amendment to this Agreement. Unless otherwise provided in this Agreement, notices shall be effective upon delivery of the written notice. Contract Number 20-HTR-ZL-03179/491002132 Page 13 of32 Version 10/30/19 February 18, 2020 - Page 18 of 121 15. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION A. Work Product Whether or not Grantee is under contract with the State at the time, Grantee shall execute applications, assignments, and other documents, and shall render all other reasonable assistance requested by the State, to enable the State to secure patents, copyrights, licenses and other intellectual property rights related to the Work Product. The Parties intend the Work Product to be works made for hire. Grantee assigns to the State and its successors and assigns, the entire right, title, and interest in and to all causes of action, either in law or in equity, for past, present, or future infringement of intellectual property rights related to the Work Product and all works based on, derived from, or incorporating the Work Product. B. Exclusive Property of the State Except to the extent specifically provided elsewhere in this Agreement, all State Records, documents, text, software (including source code), research, reports, proposals, specifications, plans, notes, studies, data, images, photographs, negatives, pictures, drawings, designs, models, surveys, maps, materials, ideas, concepts, know-how, and infonnation provided by or on behalf of the State to Grantee are the exclusive property of the State (collectively, "State Materials"). Grantee shall not use, willingly allow, cause or pennit Work Product or State Materials to be used for any purpose other than the perfonnance of Grantee's obligations in this Agreement without the prior written consent of the State. Upon tennination of this Agreement for any reason, Grantee shall provide all Work Product and State Materials to the State in a fonn and manner as directed by the State. C. Exclusive Property of Grantee Grantee retains the exclusive rights, title, and ownership to any and all pre-existing materials owned or licensed to Grantee including, but not limited to, all pre-existing software, licensed products, associated source code, machine code, text images, audio and/or video, and third-party materials, delivered by Grantee under this Agreement, whether incorporated in a Deliverable or necessary to use a Deliverable (collectively, "Grantee Property"). Grantee Property shall be licensed to the State as set forth in this Agreement or a State approved license agreement: (i) entered into as exhibits to this Agreement, (ii) obtained by the State from the applicable third-party vendor, or (iii) in the case of open source software, the license tenns set forth in the applicable open source license agreement. 16. GENERAL PROVISIONS A. Assignment Grantee's rights and obligations under this Agreement are personal and may not be transferred or assigned without the prior, written consent of the State. Any attempt at assignment or transfer without such consent shall be void. Any assignment or transfer of Grantee's rights and obligations approved by the State shall be subject to the provisions of this Agreement. B. Subcontracts Grantee shall not enter into any subgrant or subcontract in connection with its obligations under this Agreement without providing notice to the State. The State may reject any such Subcontractor, and Grantee shall tenninate any subcontract that is rejected by the State and shall not allow any Subcontractor to perfonn any work after that Subcontractor's subcontract has been rejected by the State. Grantee shall submit to the State a copy of each such subgrant or subcontract upon request by the State. All subgrants and subcontracts entered into by Grantee in connection with this Agreement shall comply with all applicable federal and state laws and regulations, shall provide that they are governed by the laws of the State of Colorado, and shall be subject to all provisions of this Agreement. C. Binding Effect Except as otherwise provided in §16.A., all provisions of this Agreement, including the benefits and burdens, shall extend to and be binding upon the Parties' respective successors and assigns. D. Authority Each Party represents and warrants to the other that the execution and delivery of this Agreement and the perfonnance of such Party's obligations have been duly authorized. E. Captions and References The captions and headings in this Agreement are for convenience ofreference only, and shall not be used to interpret, define, or limit its provisions. All references in this Agreement to sections (whether spelled out or Contract Number 20-HTR-ZL-03179/491002132 Page 14 of32 Version 10/30/19 February 18, 2020 - Page 19 of 121 using the § symbol), subsections, exhibits or other attachments, are references to sections, subsections, exhibits or other attachments contained herein or incorporated as a part hereof, unless otherwise noted. F. Counterparts This Agreement may be executed in multiple, identical, original counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. G. Entire Understanding This Agreement represents the complete integration of all understandings between the Parties related to the Work, and all prior representations and understandings related to the Work, oral or written, are merged into this Agreement. Prior or contemporaneous additions, deletions, or other changes to this Agreement shall not have any force or effect whatsoever, unless embodied herein. H. Digital Signatures If any signatory signs this Agreement using a digital signature in accordance with the Colorado State Controller Contract, Grant and Purchase Order Policies regarding the use of digital signatures issued under the State Fiscal Rules, then any agreement or consent to use digital signatures within the electronic system through which that signatory signed shall be incorporated into this Agreement by reference. I. Modification Except as otherwise provided in this Agreement, any modification to this Agreement shall only be effective if agreed to in a formal amendment to this Agreement, properly executed and approved in accordance with applicable Colorado State law and State Fiscal Rules. Modifications permitted under this Agreement, other than Agreement amendments, shall conform to the policies issued by the Colorado State Controller. J. Statutes, Regulations, Fiscal Rules, and Other Authority. Any reference in this Agreement to a statute, regulation, State Fiscal Rule, fiscal policy or other authority shall be interpreted to refer to such authority then current, as may have been changed or amended since the Effective Date of this Agreement. K. External Terms and Conditions Notwithstanding anything to the contrary herein, the State shall not be subject to any provision included in any terms, conditions, or agreements appearing on Grantee's or a Subcontractor's website or any provision incorporated into any click-through or online agreements related to the Work unless that provision is specifically referenced in this Agreement. L. Severability The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect, provided that the Parties can continue to perform their obligations under this Agreement in accordance with the intent of this Agreement. M. Survival of Certain Agreement Terms Any provision of this Agreement that imposes an obligation on a Party after termination or expiration of this Agreement shall survive the termination or expiration of this Agreement and shall be enforceable by the other Party. N. Taxes The State is exempt from federal excise taxes under I.R.C. Chapter 32 (26 U.S.C., Subtitle D, Ch. 32) (Federal Excise Tax Exemption Certificate of Registry No. 84-730123K) and from State and local government sales and use taxes under §§39-26-704(1), et seq., C.R.S. (Colorado Sales Tax Exemption Identification Number 98-02565). The State shall not be liable for the payment of any excise, sales, or use taxes, regardless of whether any political subdivision of the State imposes such taxes on Grantee. Grantee shall be solely responsible for any exemptions from the collection of excise, sales or use taxes that Grantee may wish to have in place in connection with this Agreement. 0. Third Party Beneficiaries Except for the Parties' respective successors and assigns described in § 16.A., this Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than the Parties. Enforcement of this Agreement and all rights and obligations hereunder are reserved solely to the Parties. Any services or benefits which third parties receive as a result of this Agreement are incidental to this Agreement, and do not create any rights for such third parties. Contract Number 20-HTR-ZL-03179/491002132 Page 15 of32 Version 10/30/ 19 February 18, 2020 - Page 20 of 121 l l l I I P. Waiver A Party's failure or delay in exercising any right, power, or privilege under this Agreement, whether explicit or by lack of enforcement, shall not operate as a waiver, nor shall any single or partial exercise of any right, power, or privilege preclude any other or further exercise of such right, power, or privilege. Q. CORA Disclosure To the extent not prohibited by federal law, this Agreement and the performance measures and standards required under §24-106-107, C.R.S., if any, are subject to public release through the CORA. R. Standard and Manner of Performance Grantee shall perform its obligations under this Agreement in accordance with the highest standards of care, skill and diligence in Grantee's industry, trade, or profession. S. Licenses, Permits, and Other Authorizations. 1. Grantee shall secure, prior to the Effective Date, and maintain at all times during the term of this Agreement, at its sole expense, all licenses, certifications, permits, and other authorizations required to perform its obligations under this Agreement, and shall ensure that all employees, agents and Subcontractors secure and maintain at all times during the term of their employment, agency or Subcontractor, all license, certifications, permits and other authorizations required to perform their obligations in relation to this Agreement. ii. Grantee, if a foreign corporation or other foreign entity transacting business in the State of Colorado, shall obtain prior to the Effective Date and maintain at all times during the term of this Agreement, at its sole expense, a certificate of authority to transact business in the State of Colorado and designate a registered agent in Colorado to accept service of process. T. Federal Provisions Grantee shall comply with all applicable requirements of Exhibit C at all times during the term of this Agreement. 17. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3) These Special Provisions apply to all contracts except where noted in italics. A. STATUTORY APPROVAL. §24-30-202(1), C.R.S. This Agreement shall not be valid until it has been approved by the Colorado State Controller or designee. If this Agreement is for a Major Information Technology Project, as defined in §24-37.5-102(2.6), C.R.S., then this Agreement shall not be valid until it has been approved by the State's Chief Information Officer or designee .. B. FUND AVAILABILITY. §24-30-202(5.5), C.R.S. Financial obligations of the State payable after the current State Fiscal Year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. C. GOVERNMENTAL IMMUNITY. Liability for claims for injuries to persons or property ansmg from the negligence of the State, its departments, boards, commissions committees, bureaus, offices, employees and officials shall be controlled and limited by the provisions of the Colorado Governmental Immunity Act, §24-10-101, et seq., C.R.S.; the Federal Tort Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b), and the State's risk management statutes, §§24-30-1501, et seq., C.R.S. No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, contained in these statutes. D. INDEPENDENT CONTRACTOR. Grantee shall perform its duties hereunder as an independent contractor and not as an employee. Neither Grantee nor any agent or employee of Grantee shall be deemed to be an agent or employee of the State. Grantee shall not have authorization, express or implied, to bind the State to any agreement, liability or understanding, except as expressly set forth herein. Grantee 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 Grantee or any of its agents or employees. Grantee shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this Agreement. Grantee shall (i) provide and keep in force workers&#39; compensation Contract Number 20-HTR-ZL-03179/491002132 Page 16 of32 Version 10/30/19 February 18, 2020 - Page 21 of 121 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. Grantee shall comply with all applicable federal and State laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices. F. CHOICE OF LAW, JURISDICTION, AND VENUE. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Agreement. Any provision included or incorporated herein by reference which conflicts with said laws, rules, and regulations shall be null and void. All suits or actions related to this Agreement shall be filed and proceedings held in the State of Colorado and exclusive venue shall be in the City and County of Denver. G. PROHIBITED TERMS. Any term included in this Agreement that requires the State to indemnify or hold Grantee harmless; requires the State to agree to binding arbitration; limits Grantee's liability for damages resulting from death, bodily injury, or damage to tangible property; or that conflicts with this provision in any way shall be void ab initio. Nothing in this Agreement shall be construed as a waiver of any provision of §24-106-109, C.R.S. H. SOFTWARE PIRACY PROHIBITION. State or other public funds payable under this Agreement shall not be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. Grantee hereby certifies and warrants that, during the term of this Agreement and any extensions, Grantee has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. if the State determines that Grantee is in violation of this provision, the State may exercise any remedy available at law or in equity or under this Agreement, including, without limitation, immediate termination of this Agreement and any remedy consistent with federal copyright laws or applicable licensing restrictions. I. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. §§24-18-201 and 24-50-507, C.R.S. The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this Agreement. Grantee has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of Grantee's services and Grantee 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 ofHigher 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 Grantee in error for any reason, including, but not limited to, overpayments or improper payments, and unexpended or excess funds received by Grantee by deduction from subsequent payments under this Agreement, deduction from any payment due under any other contracts, grants or agreements between the State and Grantee, 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] Grantee certifies, warrants, and agrees that it does not knowingly employ or contract with an illegal alien who will perform work under this Agreement and will confirm the employment eligibility ofall employees who are newly hired for employment in the United States to perform work under this Agreement, through participation in the EVerify Program or the State verification program established pursuant to §8-17.5-102(5)( c ), C.R.S., Grantee shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or enter into a contract with a Subcontractor that fails to certify to Grantee that the Subcontractor shall not knowingly employ or contract with an illegal alien Contract Number 20-HTR-ZL-03179/491002132 Page 17 of32 Version 10/30/19 February 18, 2020 - Page 22 of 121 to perfonn work under this Agreement. Grantee (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 Agreement is being perfonned, (ii) shall notify the Subcontractor and the contracting State agency or institution of higher education within three days if Grantee has actual knowledge that a Subcontractor is employing or contracting with an illegal alien for work under this Agreement, (iii) shall tenninate the subcontract if a Subcontractor does not stop employing or contracting with the illegal alien within three days ofreceiving the notice, and (iv) shall complywith 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 Grantee participates in the Department program, Grantee shall deliver to the contracting State agency, Institution of Higher Education or political subdivision, a written, notarized affinnation, affinning that Grantee has examined the legal work status of such employee, and shall comply with all of the other requirements of the Department program. If Grantee fails to comply with any requirement of this provision or §§8-17.5-101, et seq., C.R.S., the contracting State agency, institution of higher education or political subdivision may tenninate this Agreement for breach and, if so tenninated, Grantee shall be liable for damages. L. PUBLIC CONTRACTS WITH NATURAL PERSONS. §24-76.5-101, et seq., C.R.S. Grantee, if a natural person eighteen ( 18) years of age or older, hereby swears and affinns under penalty of perjury that Grantee (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 fonn of identification required by §24-76.5-103, C.R.S., prior to the Effective Date of this Agreement. Contract Number 20-HTR-ZL-03179/491002132 Page 18 of32 Version 10/30/19 February 18, 2020 - Page 23 of 121 EXHIBIT A, STATEMENT OF WORK AND BUDGET Project Description 2020-FASTER: Transit Facility Electric Svc Upgrades & Install Chargers Project End Date December 31, 2020 Sub-recipient Vail, Town of DUNS# 075753293 Contact Name Greg Hall Vendor# 2000003 Address 75 S Frontage Rd Phone (970) 479-2160 Vail, CO 81657-5096 USA Email ghall@vailgov.com Indirect Rate NIA WBS* 23273 ALI Total Project Budget $1,374,900.00 State FASTER Funds (at 80% or less) $1,099,920.00 Local Funds (at 20% or more) $274,980.00 Total Project Amount Encumbered via this Grant Agreement $1,099,920.00 *The WBS numbers may be replaced without changing the amount of the grant at CDOT's discretion. A. Project Description The Town of Vail is in the process ofa bus replacement project which will begin fleet transition to battery electric buses through established fleet replacement schedules. This project is currently being supported with a 2017 FT A Low or No Emissions Section 5339( c) electric battery bus award and is part of a long-term fleet replacement plan. This specific project relates to the infrastructure needed to upgrade the Town of Vail bus barn to support depot charging of a battery-electric bus fleet. Currently, the bus barn houses diesel and hybrid buses and needs significant electrical upgrades to accommodate fleet-scale charging of battery electric buses. The Town of Vail will use the 2020 FASTER funds, along with local matching funds, to support the upgrade of the power supply and installation of chargers at the bus barn facility. The project will support the goals of the Statewide Transit Plan. Salient features for this project are: Consultant selection process, design and entitlement process, including approval from the electric utility provider, contractor selection process and procurement, construction of approved improvements, project turnover and closeout. Procurement /Project Delivery Method: The project will utilize the Design-Bid-Build method of delivery. Electing CM/GC as a contractor selection process is subject to CDOT's approval. Town of Vail must submit a written request to COOT and obtain permission on the project delivery method changes. Town of Vail will select a construction firm within six months of the execution of this grant agreement. Project Location: 1289 Elkhorn Drive, Vail, CO 81657 National Environmental Policy Act (NEPA): The Town of Vail must ensure that the environmental consequences of its transportation project have been adequately considered and that required mitigation measures can be completed within the time frame and budget described in the application. An environmental clearance is required before final design, right-of-way acquisition and construction funds are authorized. Contact the COOT Project Manager for guidance concerning the environmental requirements. Among those requirements, Environmental Justice considerations should be analyzed Contract Number 20-HTR-ZL-03179/491002132 Page 19 of32 Version I 0/30/19 February 18, 2020 - Page 24 of 121 and documented, if applicable. For more information see Chapter 9 .15 of the CDOT NEPA Manual, found at: https://www.codot.gov/programs/environmental/nepa-program/nepa-manual . Right of Way: Even though the Town of Vail does not anticipate additional Right of Way needed for this project at the time of execution of this grant agreement, the Town of Vail shall consult the CDOT Region 3 Right of Way Manager and determine whether the Town of Vail shall submit information sufficient to demonstrate the entirety of the Project, including but not limited to the vault, transformer and service line installations, can be implemented entirely on property owned and/or controlled by the Town of Vail. In the event it is determined the Project requires the acquisition of real estate interests, whether permanent or temporary, the acquisition of such interests must be conducted in compliance with the Uniform Relocation & Real Property Acquisition Policies Act of 1970, as amended (Uniform Act), applicable Colorado state statutes, and the CDOT Right of Way Manual. Persons or firms involved in the valuation and acquisition ofreal estate interests required for the Project must be qualified by CDOT to perform those functions. Please direct all right of way related communications to: Tim Woodmansee CDOT Region 3 Right of Way Manager 222 S. 6th Street, Room 317 Grand Junction, CO 81501 Phone: 970-683-6224 Email: tim.woodmansee@state.co.us Utilities: The project is required to comply with CRS 9-.5-101 through 108 regarding subsurface utility engineering (SUE). If the project meets the four criteria listed within the aforementioned Colorado Revised Statute, a SUE investigation will be required. For more additional information, please relay your questions to: Joe Carter CDOT Region 3 Utility Engineering Program Manager 222 S. 6th Street, Room 317 Grand Junction, CO 81501 Phone:970-683-6209 Email: joseph.carter@state.co.us Design: Work including preliminary design or final design (the "Construction Plans"), design work sheets, or special provisions and estimates (collectively referred to as the "Plans"), requires that the Grantee comply with the following requirements, as applicable: a. perform or provide the Plans, to the extent required by the nature of the Work; b. prepare final design (Construction Plans) in accordance with the requirements of the latest edition of the American Association of State Highway Transportation Officials (AASHTO) manual or other standard, such as the Uniform Building Code, as approved by COOT; c. prepare special provisions and estimates in accordance with the State's Roadway and Bridge Design Manuals and Standard Specifications for Road and Bridge Construction or Grantee specifications if approved by COOT; d. include details of any required detours in the Plans, in order to prevent any interference of the construction Work and to protect the traveling public; e. stamp the Plans produced by a Colorado Registered Professional Engineer; f. provide final assembly of Plans and Grant documents; Contract Number 20-HTR-ZL-03179/491002132 Page 20 of32 Version I 0/30/19 February 18, 2020 - Page 25 of 121 g. be responsible for the Plans being accurate and complete; and h. make no further changes in the Plans following the award of the construction contract except in writing approved by all the Parties. The Plans shall be considered final when approved and accepted by the Parties hereto, and when final they shall be deemed incorporated herein. Construction: I. Work including construction requires that, the Town of Vail perform the construction and construction administration in accordance with the approved Plans and CDOT oversight. Such administration shall include Project inspection and testing; performing required plant and shop inspections; documentation of grant payments, testing and inspection activities; preparing and approving pay estimates; preparing, approving and securing the funding for Grant modification orders and minor subgrant revisions; processing Subgrantee claims; construction supervision; 2. The State shall have the authority to suspend the Work, wholly or in part, by giving written notice thereof to the Grantee, due to the failure of the Grantee or its Subgrantee to correct Project conditions which are unsafe for workers or for such periods as the State may deem necessary due to unsuitable weather, or for conditions considered unsuitable for the prosecution of the Work, or for any other condition or reason deemed by the State to be in the public interest. 3. Grantee-Town of Vail: a. shall appoint a qualified professional engineer, licensed in the State of Colorado, as the Grantee Project Engineer ("LAPE"), to perform that administration. The LAPE shall administer the Project in accordance with this Grant, the requirements of the construction sub grant and applicable State procedures. b. if bids are to be let for the construction of the Project, it shall advertise the call for bids upon approval by the State and award the construction subgrant(s) to the low responsible bidder(s) upon approval by the State. (I) In advertising and awarding the bid for the construction, the Grantee shall comply with applicable requirements of23 USC§ 112, 23 CFR Parts 633 and 635, and CRS §24-92-10 I et seq. Those requirements include, without limitation, that the Grantee/Subgrantee shall comply with terms and conditions as required by 23 CFR §633.102(e). (2) The Grantee has the option to accept or reject the proposal of the apparent low bidder for work on which competitive bids have been received. The Grantee must declare the acceptance or rejection within 15 working days after said bids are publicly opened. (3) By indicating its concurrence in such award, the Grantee, acting by or through its duly authorized representatives, agrees to provide additional funds, subject to their availability and appropriation for that purpose, ifrequired to complete the Work under this Project ifno additional State funds will be made available for the Project. This paragraph also applies to Projects advertised and awarded by the State. Project Administration and Approvals: Town of Vail and/or consultant will provide day to day oversight of the plans and construction. CDOT will provide oversight of the project, including Procurement and Invoice Approval. Key Tasks/Deliverables: • Obtain CDOT approval for procurement /advertisement (PCR) for Design Consultant • Advertise for bids for Design Consultant • Obtain CDOT approval of Procurement Authorization (PA) for award for Design Consultant (Design consultant should subcontract a SUE consultant as a SUE investigation is required for the project. Utility Contract Number 20-HTR-ZL-03179/491002132 Page 21 of32 Version 10/30/19 February 18, 2020 - Page 26 of 121 i '1 J 'l & ' ~ j i ~ 1 I l ,j I J 'l 1 :1 i ;J ; l coordination shall be performed by the Design Consultant.) This should be reflected in the Milestone Table below in Section B • A ward Selected Design Consultant • Complete the final design (Town of Vail shall notify CDOT two weeks in advance so CDOT staff can review the final design along with Town of Vail) • • • • • • • Conduct environmental clearance process Obtain utility agreements Prepare construction cost estimates Obtain CDOT approval for procurement /advertisement (PCR) for Construction Contractor Advertise for bids for Construction Contractor Obtain CDOT approval of Procurement Authorization (PA) for Construction Contractor Award selected construction contractor • Conduct pre-construction conference (CDOT staff will participate in the conference along with Town of Vail) • Monitor construction process • • Conduct Final Project Inspection (CDOT staff will participate in the inspection along with Town of Vail) Submit monthly reimbursement requests to CDOT . • Process the final reimbursement request upon project closeout CDOT, or a COOT-authorized Construction PE Consultant, will be involved in some manner in most of the activities listed above. B. Performance Standards 1. Project Milestones Milestone Description Design Consultant RFP Issued Select Design Contractor Award Design Contract (Including SUE Contractor) Design Complete RFP Construction Contractor A ward Construction Contract Notice to Proceed Substantial Completion Project Close Out Final Reimbursement Request Original Estimated Complete Date 1/31/2020 2/26/2020 3/3/2020 6/12/2020 6/15/2020 7/7/2020 7/10/2020 10/2/2020 11/6/2020 12/31/2020 IMPORTANT NOTE: All milestones in this Statement of Work (except for the final reimbursement requests) must be completed no later than the expiration date of this Subaward Agreement: December 31, 2020. 2. Town of Vail shall use the Capital Asset(s) purchased for its transit operations and shall perform regularly recurring maintenance with specific performance measures tied to Town of Vail's written maintenance plans, including manufacturer's recommendations and warranty program(s). Town of Vail will measure whether this project is successful and improves the efficiency, effectiveness, and safety of transportation. 3. Performance will be reviewed throughout the duration of this Grant Agreement. Town of Vail shall report to the CDOT Project Manager whenever one or more of the following occurs: a. Budget or schedule changes; b. Scheduled milestone or completion dates are not met; c. Identification of problem areas and how the problems will be resolved; and/or d. Expected impacts and the efforts to recover from delays. Contract Number: 20-HTR-ZL-03179/491002132 Page 22 of 32 Version I 0/30/ 19 February 18, 2020 - Page 27 of 121 4. Town of Vail must comply and submit all reimbursements and associated reports, including the assignment of "Colorado Department of Transportation" as the lienholder on the Capital Asset(s), as a condition of project closeout. C. Project Budget 1. The detail of project cost is listed on the following table: Vault & Transformer installation $35,000 Service Installation cost-800' to building $175,000 Main distribution switch and 1600 Amp service $250,000 Electrical room retrofit, code updates, fire suppression $120,000 Run 1,200' service line to bus barn $215,000 Service to each charger location (7 X 18,000) $126,000 Back-up Power Generation $154,000 Building, electrical, and utility permits $25,000 Engineering and design $100,000 Construction Administration $50,000 Project Contingency (10%) $124,900 Total $1,374,900 2. The Total Project Budget is $1,374,900.00. The State will pay no more than 80% of the eligible, actual project costs, up to the maximum amount of$1,099,920.00. The State will retain any remaining balance of the state share of FASTER Funds. Town of Vail shall be solely responsible for all costs incurred in the project in excess of the amount paid by the State from FASTER Funds for the state share of eligible, actual costs. For CDOT accounting purposes, the FASTER Funds of$1,099,920.00 will be encumbered for this Grant Agreement. 3. No refund or reduction of the amount of Town of Vail's share to be provided for the project will be allowed unless there is at the same time a refund or reduction of the state share of a proportionate amount. 4. Town of Vail may use eligible federal funds for the Local Funds share. Town of Vail's share, together with the State FASTER Funds share, must be enough to ensure payment of the Total Project Budget. 5. Per the terms of this Grant Agreement, the State shall have no obligation to provide state funds for use on this project. The State will administer FASTER funds for this project under the terms of this Grant Agreement, provided that the state share of FASTER funds to be administered by the State are made available and remain available. Town of Vail shall initiate and prosecute to completion all actions necessary to enable Town of Vail to provide its share of the Total Project Budget at or prior to the time that such funds are needed to meet the Total Project Budget. Contract Number 20-HTR-ZL-03179/491002132 Page 23 of 32 Version I 0/30/19 February 18, 2020 - Page 28 of 121 D. Procurement Procurement of this Capital Asset(s) will comply with state procurement procedures and the DTR Quick Procurement Guide. In addition to the state requirements outlined below, state procedures for purchase of this Capital Asset(s) must be followed and will be outlined prior to selecting Design Contractor and Construction Contractor. 1. The first step in the procurement process will be to obtain an Independent Cost Estimate (ICE). 2. The second step will be to obtain a Procurement Concurrence Request (PCR) approval from the CDOT Project Manager through COTRAMS. 3. Prior to entering into a purchasing agreement with the selected vendor, Town of Vail shall request a Purchase Authorization (PA), and submit a purchase order for the Capital Asset(s) in COTRAMS. 4. Once the Purchase Authorization (PA) is approved by the CDOT Project Manager, and the Capital Asset(s) is/are ordered, the CDOT Project Manager shall be notified by Town of Vail in COTRAMS of the agreed upon delivery date. 5. Upon delivery, Town of Vail shall be responsible for having the Capital Asset(s) inspected and accepted within fifteen (15) calendar days of delivery. If defects prevent acceptance of the Capital Asset(s), Town of Vail will contact the vendor to resolve any defects and notify CDOT. 6. Town of Vail shall be responsible for reimbursing the selected vendor within forty-five (45) calendar days after acceptance of the Capital Asset(s). E. Allowable Costs Town of Vail shall agree to adhere to the provisions for allowable and unallowable costs cited in the following regulations: 2 CFR 200.420 through 200.475 and 2 CFR 200.102. Other applicable requirements for cost allowability not cited previously, shall also be considered. F. Reimbursement Eligibility Requests for reimbursement for eligible project costs will be paid to Town of Vail upon submission ofa complete reimbursement packet in COTRAMS for those eligible costs incurred during the Grant Agreement effective dates. Town of Vail will submit monthly reimbursement requests to CDOT and bill up to 95% of the FASTER total eligible amount, which is $1,306,155, then submit a final invoice of$68,745 upon the project closeout. Accepted reimbursement packets will include the following completed documents: • Independent Cost Estimate (ICE) (with the first reimbursement requests for the design consultant and the construction contractor) • Procurement Concurrence Request (PCR) (with the first reimbursement requests for the design consultant and the construction contractor) • Purchase Authorization (PA) (with the first reimbursement requests for the design consultant and the construction contractor) • Invoice • Proof of Payment • Any Relevant Supporting Documents • Monthly Project Progress Report Town of Vail must submit the final invoice within sixty (60) calendar days of acceptance of the Capital Asset(s), and submit a Grant Closeout and Liquidation (GCL) Form in COTRAMS within fifteen (15) calendar days of issuance of the final reimbursement payment. Contract Number 20-HTR-ZL-03179/491002132 Page 24 of32 Version I 0/30/19 February 18, 2020 - Page 29 of 121 G. State lnterest--Service Life CDOT maintains its share of the remaining state interest upon disposition of state assisted property before the end of its useful life or for a value greater than $5,000 after the useful life has been met, according to the provisions of the State Management Plan. The useful life of the purchased equipment begins on the date it is placed into service and continues until it is removed from service. Minimum useful life is determined by years of service, in accordance with the State Management Plan. The minimum useful life of each equipment component shall be obtained from each manufacturer and shall be documented with the State. Town of Vail shall not dispose or otherwise release the Capital Asset(s) to any other party while there is state interest in the Capital Asset(s) without approval from the CDOT Project Manager. Town of Vail is responsible for making the request to the CDOT Project Manager in a timely manner, providing appropriate documentation, if indicated, when a lien release is being requested in order to allow CDOT to process the release of a lien. H. Training In an effort to enhance transit safety, Town of Vail and any subrecipients and subcontractors shall make a good faith effort to ensure that appropriate training of agency and contracted personnel is occurring and that personnel are up to date in appropriate certifications. I. Restrictions on Lobbying Town of Vail is certifying that it complies with 2 CFR 200.450 by entering into this Subaward Agreement. J. Special Conditions 1. Town of Vail will comply with all requirements imposed by CDOT on Town of Vail so that the state award is used in accordance with state statutes, regulations, and the terms and conditions of the state award. 2. Town of Vail must permit CDOT and their auditors to have access to Town of Vail's records and financial statements as necessary, with reasonable advance notice. 3. Except as provided in this Grant Agreement, Town of Vail shall not be reimbursed for any purchase, issued purchase order, or leased capital equipment prior to the execution of this Grant Agreement. 4. Town of Vail shall document any loss, damage, or theft of FT A-or state-funded property, equipment, or rolling stock in COTRAMS. 5. Town of Vail shall ensure that it does not exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States on the ground ofrace, color, national origin, sex, age or disability in accordance with Title VI of the Civil Rights Act of 1964. 6. Town of Vail shall seek to ensure non-discrimination in its programs and activities by developing and maintaining a Title VI Program in accordance with the "Requirements for FT A Subrecipients" in CDOT's Title VI Program Plan and Federal Transit Administration Circular 4702.lB, "Title VI Requirements and Guidelines for FTA Recipients." The Party shall also facilitate FT A's compliance with Executive Order 12898 and DOT Order 5610.2(a) by incorporating the principles of environmental justice in planning, project development and public outreach in accordance with FTA Circular 4703.1 "Environmental Justice Policy Guidance for Federal Transit Administration Recipients." 7. Town of Vail will provide transportation services to persons with disabilities, in accordance with Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq. Contract Number 20-HTR-ZL-03179/491002132 Page 25 of32 Version I 0/30/19 February 18, 2020 - Page 30 of 121 8. Town of Vail shall develop and maintain an ADA Program in accordance with 28 CFR Part 35, Nondiscrimination on the Basis of Disability in State and Local Government Services, FT A Circular 4 710.1, and any additional requirements established by CDOT for FTA subrecipients. 9. Town of Vail shall ensure that it will comply with the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, FTA guidance, and any other federal, state, and/or local laws, rules and/or regulations. In any contract utilizing federal funds, land, or other federal aid, Town of Vail shall require its subrecipients and/or contractors to provide a statement of written assurance that they will comply with Section 504 and not discriminate on the basis of disability. 10. Town of Vail shall agree to produce and maintain documentation that supports compliance with the Americans with Disabilities Act to CDOT upon request. Contract Number 20-HTR-ZL-03179/491002132 Page 26 of32 Version I 0/30/19 February 18, 2020 - Page 31 of 121 EXHIBIT B, SAMPLE OPTION LETTER State Agency Option Letter Number Department of Transportation Insert the Option Number ( e.g. "l" for the first option) Grantee Original Agreement Number Insert Grantee's Full Legal Name, including "Inc.", Insert CMS number or Other Contract Number of the "LLC", etc ... Original Contract Current Agreement Maximum Amount Option Agreement Number Initial Tenn Insert CMS number or Other Contract Number of State Fiscal Year 20xx $0.00 this Option Extension Tenns Agreement Performance Beginning Date State Fiscal Year 20xx $0.00 The later of the Effective Date or Month, Day, Year State Fiscal Year 20xx $0.00 State Fiscal Year 20xx $0.00 Current Agreement Expiration Date State Fiscal Year 20xx $0.00 Month, Day, Year Local Funds $0.00 Total for All State Fiscal Years $0.00 1. OPTIONS: A. Option to extend for an Extension Term or End of Tenn Extension. 2. REQUIRED PROVISIONS: A. For use with Option HA): In accordance with Section(s) 2.B/2.C of the Original Agreement referenced above, the State hereby exercises its option for an additional tenn/end oftenn extension, beginning Insert start date and ending on the current Agreement expiration date shown above, at the rates stated in the Original Agreement, as amended. B. For use with all Options that modify the Agreement Maximum Amount: The Agreement Maximum Amount table on the Agreement's Cover Page is hereby deleted and replaced with the Current Agreement Maximum Amount table shown above. 3. OPTION EFFECTIVE DATE: A. The effective date of this Option Letter is upon approval of the State Controller or __ , whichever is later. STATE OF COLORADO Jared S. Polis, Governor Department of Transportation Shoshana M. Lew, Executive Director By: ______________ _ Date: David Krutsinger, Director, Division of Transit and Rail Contract Number 20-HTR-ZL-03179/491002132 In accordance with §24-30-202, C.R.S., this Option is not valid until signed and dated below by the State Controller or an authorized delegate. ST ATE CONTROLLER Robert Jaros, CPA, MBA, JD By: ______________ _ Department of Transportation Option Effective Date: Page 27 of 32 Version 10/30/19 February 18, 2020 - Page 32 of 121 EXHIBIT C, TITLE VI -CIVIL RIGHTS Nondiscrimination Requirements The Parties shall not exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States on the ground of race, color, national origin, sex, age or disability. During the performance of this agreement, the Grantee, for itself, its assignees and successors in interest (hereinafter referred to as the "Grantee") agrees as follows: ( 1) Compliance with Regulations: The grantee shall comply with the Regulation relative to nondiscrimination in federally-assisted programs of the Department of Transportation (hereinafter, "DOT") Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this contract. (2) Nondiscrimination: The grantee, with regard to the work performed by it during the contract, shall not discriminate on the grounds ofrace, color, national origin, or sex in the selection and retention of subgrantees, including procurements of materials and leases of equipment. The grantee shall not participate either directly or indirectly in the discrimination prohibited by section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix B of the Regulations. (3) Solicitations for Subgrantees, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by the grantee for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential subgrantee or supplier shall be notified by the grantee of the grantee's obligations under this contract and the Regulations relative to nondiscrimination on the grounds of race, color, national origin or sex. (4) Information and Reports: The grantee shall provide all information and reports required by the Regulations or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the Colorado Department of Transportation to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of a grantee is in the exclusive possession of another who fails or refuses to furnish this information the grantee shall so certify to the Colorado Department of Transportation as appropriate, and shall set forth what efforts it has made to obtain the information. (5) Sanctions for Noncompliance: In the event of the grantee's noncompliance with the nondiscrimination provisions of this contract, the Colorado Department of Transportation shall impose such contract sanctions as may determine to be appropriate, including, but not limited to: (a) withholding of payments to the grantee under the contract until the grantee complies, and/or (b) cancellation, termination or suspension of the contract, in whole or in part. (6) Incorporation of Provisions: The grantee shall include the provisions of paragraphs (1) through (6) in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. The grantee shall take such action with respect to any subcontract or procurement as the Colorado Department of Transportation may direct as a means of enforcing such provisions including sanctions for non-compliance; provided, however, that, in the event a grantee becomes involved in, or is threatened with, litigation with a subgrantee or supplier as a result of such direction, the grantee may request the Colorado Department of Transportation to enter into such litigation to protect the interests of the Colorado Department of Transportation. Contract Number: 20-HTR-ZL-03 I 79/491002132 Page 28 of32 Version I 0/30/ I 9 February 18, 2020 - Page 33 of 121 EXHIBIT D, LOCAL AGENCY GRANT ADMINISTRATION CHECKLIST The following checklist has been developed to ensure that all required aspects of a project approved for state funding have been addressed and a responsible party assigned for each task. After a project has been approved for state funding in the Statewide Transportation Improvement Program, the Colorado Department of Transportation (CDOT) Project Manager, Local Agency Project Manager, and CDOT Resident Engineer (if appropriate) prepare the checklist. It becomes a part of the contractual agreement between the Local Agency and CDOT. The CDOT Agreements Unit will not process a Local Agency agreement without this completed checklist. It will be reviewed at the Final Office Review meeting to ensure that all parties remain in agreement as to who is responsible for performing individual tasks. COLORADO DEPARTMENT OF TRANSPORTATION LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST Project No. STIP No. Project Code Region 23273.10.50 SST7035.324 N/A DTR 23273.10.50 Project Location Date 1289 Elkhorn Drive vail CO 12/19/2019 Project Description 2020-FASTER; Transit Facility Electric Svc Uoarades & Install Charaer Local Agency Local Agency Project Manager Town of Vail Grea Hall COOT Resident Engineer COOT Project Manager N/A Brodie Ayers INSTRUCTIONS: This checklist shall be utilized to establish the contract administration responsibilities of the individual parties to this agreement. The checklist becomes an attachment to the Local Agency agreement. Section numbers correspond to the applicable chapters of the COOT Local Agency Manual. The checklist shall be prepared by placing an "X" under the responsible party, opposite each of the tasks. The "X" denotes the party responsible for initiating and executing the task. Only one responsible party should be selected. When neither COOT nor the Local Agency is responsible for a task, not applicable (NA) shall be noted. In addition, a "#" will denote that COOT must concur or approve. Tasks that will be performed by Headquarters staff will be indicated. The Regions, in accordance with established policies and procedures, will determine who will perform all other tasks that are the responsibility of COOT. The checklist shall be prepared by the COOT Resident Engineer or the COOT Project Manager, in cooperation with the Local Agency Project Manager, and submitted to the Region Program Engineer. If contract administration responsibilities change, the COOT Resident Engineer, in cooperation with the Local Agency Project Manager, will prepare and distribute a revised checklist. Note: Failure to comply with applicable Federal and State requirements may result in the loss of Federal or State participation in fundina. Contract Number: 20-HTR-ZL-03179/49 l 002132 Page 29 of32 Version I 0/30/19 February 18, 2020 - Page 34 of 121 RESPONSIBLE NO. DESCRIPTION OF TASK PARTY LA COOT TIP/ STIP AND LONG-RANGE PLANS 2.1 Review Project to ensure it is consistent with STIP and amendments thereto X STATEFUNDING OBLIGATION AND AUTHORIZATION 4.1 Authorize funding by phases (CDOT Form 418 -Federal-aid Program Data. Requires X CDOTconcurrence/involvement) PROJECT DEVELOPMENT 5.1 Preoare Desian Data -CDOT Form 463 N/A 5.2 Preoare Local Aaency/CDOT Inter-Governmental Aareement (see also Chapter 3) X 5.3 Conduct Consultant Selection/Execute Consultant Agreement • Project Development X # • Construction Contract Administration (includina Fabrication lnsoection Services) X 5.4 Conduct Desian Scopina Review Meetina X 5.5 Conduct Public Involvement X 5.6 Conduct Field Inspection Review (FIR) N/A 5.7 Conduct Environmental Processes (may require CDOT concurrence/involvement) X # 5.8 Acauire Riaht-of-Way (may require CDOT concurrence/involvement) X 5.9 Obtain Utility and Railroad Agreements X I 5.10 Conduct Final Office Review (FOR) X # 5.11 Justify Force Account Work by the Local Agency N/A 5.12 Justify Proprietary, Sole Source, or Local Aaency Furnished Items X 5.13 Document Design Exceptions -CDOT Form 464 N/A 5.14 Prepare Plans, Specifications, Construction Cost Estimates and Submittals X 5.15 Ensure Authorization of Funds for Construction X X PROJECT DEVELOPMENT CIVIL RIGHTS AND LABOR COMPLIANCE 6.1 Set Disadvantaged Business Enterprise (DBE) Goals for Consultant and Construction N/A Contracts (CDOT Reaion EEO/Civil Riohts Specialist). 6.2 Determine Applicability of Davis-Bacon Act This project X D is D is not exempt from Davis-Bacon requirements as determined by the functional classification of the project location (Projects located on local roads and rural minor collectors may be exempt.) CDOT Resident Engineer (Signature on File) Date 6.3 Set On-the-Job Trainina Goals (CDOT Reoion EEO/Civil Rights Specialist) N/A 6.4 Title VI Assurances X Ensure the correct Federal Wage Decision, all required Disadvantaged Business N/A Enterprise/On-the-Job Training special provisions and FHWA Form 1273 are included in the Contract 1r.nnT -- ADVERTISE, BID AND AWARD of CONSTRUCTION PROJECTS 7.1 Obtain Aooroval for Advertisement Period of Less Than Three Weeks X # 7.2 Advertise for Bids X 7.3 Distribute "Advertisement Set" of Plans and Soecifications X 7.4 Review Worksite and Plan Details with Prospective Bidders While Project Is Under X Advertisement 7.5 Open Bids X 7.6 Process Bids for Compliance Check CDOT Form 1415-Commitment Confirmation when the low bidder meets DBE aoals N/A N/A Evaluate CDOT Form 1416 -Good Faith Effort Report and determine if the Contractor has made a aood faith effort when the low bidder does not meet DBE goals N/A NIA Submit required documentation for CDOT award concurrence X 7.7 Concurrence from CDOT to Award X 7.8 Aoorove Reiection of Low Bidder # 7.9 Award Contract X 7.10 Provide "Award" and "Record" Sets of Plans and Specifications X Contract Number: 20-HTR-ZL-03179/491002132 Page 30 of 32 Version 10/30/19 February 18, 2020 - Page 35 of 121 RESPONSIBLE NO. DESCRIPTION OF TASK PARTY LA CDOT CONSTRUCTION MANAGEMENT 8.1 Issue Notice to Proceed to the Contractor X 8.2 Project Safety X 8.3 Conduct Conferences: Pre-Construction Conference (Appendix B) X X • Fabrication Inspection Notifications Pre-survey • Construction staking X • Monumentation Partnering (Optional) N/A Structural Concrete Pre-Pour (Agenda is in COOT Construction Manual) X Concrete Pavement Pre-Paving (Agenda is in COOT Construction Manual) X HMA Pre-Paving (Agenda is in COOT Construction Manual) X 8.4 Develop and distribute Public Notice of Planned Construction to media and local residents N/A 8.5 Supervise Construction A Professional Engineer (PE) registered in Colorado, who will be "in responsible charge of construction supervision." Tom Kassemel 970-479-2235 X Local Agency Professional Engineer or Phone number CDOT Resident Enaineer Provide competent, experienced staff who will ensure the Contract work is constructed in accordance with the plans and specifications X Construction inspection and documentation X Fabrication Inspection and documentation X 8.6 Aoorove Shop Drawinas X 8.7 Perform Traffic Control Inspections N/A 8.8 Perform Construction Surveyina X 8.9 Monument Right-of-Way N/A 8.10 Prepare and Approve Interim and Final Contractor Pay Estimates. Collect and review CDOT X Form 1418 (or equivalent) Provide the name and phone number of the person authorized for this task. Greg Hall 970 479-2160 Local Agency Representative Phone number 8.11 Prepare and APProve Interim and Final Utilitv and Railroad Billinas X 8.12 Prepare and Authorize Chanae Orders X 8.13 Submit Change Order Packaae to CDOT X # 8.14 Prepare I "'""' 11.n<>nr,v o,,.;mh, R<>mooc,tc, X 8.15 Monitor Proiect Financial Status X 8.16 Prepare and Submit Monthlv Proaress Reports X 8.17 Resolve Contractor Claims and Disputes X 8.18 Conduct Routine and Random Project Reviews Provide the name and phone number of the person responsible for this task. X Brodie Ay_ers/ or DTR PE Consultant 303-757-9767 CDOT Resident Engineer Phone number 8.19 Onaoina Oversiaht of DBE Participation N/A MATERIALS 9.1 Discuss Materials at Pre-Construction Meeting X • Buv America documentation reauired prior to installation of steel 9.2 Complete CDOT Forrtt 250 -Materials Doc □rnentatlon ~ecorc:J • Generate form, which includes determining the minimum number of required tests and N/A aPPlicable material submittals for all materials Placed on the proiect Contract Number 20-HTR-ZL-03179/491002132 Page 31 of32 Version 10/30/19 February 18, 2020 - Page 36 of 121 ; l I J RESPONSIBLE NO. DESCRIPTION OF TASK PARTY LA CDOT • Update the form as work progresses • Complete and distribute form after work is completed 9.3 Perform Project Acceptance Samples and Tests N/A 9.4 Perform Laboratory Verification Tests N/A 9.5 Accept Manufactured Products X Inspection of structural components: • Fabrication of structural steel and pre-stressed concrete structural components N/A l • Bridge modular expansion devices (O" to 6" or greater) N/A • Fabrication of bearing devices N/A 9.6 Aoorove Sources of Materials N/A 9.7 Independent Assurance Testing (IAT), Local Agency Procedures XO CDOT Procedures D • Generate IAT schedule N/A • Schedule and provide notification N/A • Conduct IAT N/A l 9.8 Approve mix designs N/A • Concrete N/A • Hot mix asphalt 9.9 Check Final Materials Documentation N/A 9.10 Complete and Distribute Final Materials Documentation N/A CONSTRUCTION CIVIL RIGHTS AND LABOR COMPLIANCE 10.1 Fulfill Proiect Bulletin Board and Pre-Construction Packet Reauirements N/A I 1 10.2 Process CDOT Form 205 -Sublet Permit Application Review and sign completed CDOT Form 205 for each subcontractor, and submit to N/A EEO/Civil Riahts Specialist 10.3 Conduct Equal Employment Opportunity and Labor Compliance Verification Employee N/A Interviews. Complete CDOT Form 280 10.4 Monitor Disadvantaged Business Enterprise Participation to Ensure Compliance with the N/A "Commercially Useful Function" Requirements 10.5 Conduct Interviews When Project Utilizes On-the-Job Trainees. N/A • Complete CDOT Form 1337 -Contractor Commitment to Meet OJT Requirements . • Complete CDOT Form 838 -OJT Trainee I Apprentice Record . N/A • Complete CDOT Form 200 -OJT Trainina Questionnaire N/A 10.6 Check Certified Payrolls (Contact the Region EEO/Civil Rights Specialists for trainina reauirements.l N/A 10.7 Submit FHWA Form 1391 -Hiahwav Construction Contractor's Annual EEO Reoort N/A FINALS 11.1 Conduct Final Project Inspection. Complete and submit CDOT Form 1212 -Final X Acceptance Report (Resident Engineer with mandatory Local Agency participation.) 11.2 Write Final Proiect Acceptance Letter X 11.3 Advertise for Final Settlement X 11.4 Prepare and Distribute Final As-Constructed Plans X 11.5 Prepare EEO Certification and Collect EEO Forms X 11.6 Check Final Quantities, Plans, and Pay Estimate; Check Project Documentation; and submit X # Final Certifications 11.7 Check Material Documentation and Accept Final Material Certification (See Chapter 9) N/A X 11.8 Obtain CDOT Form 1419 from the Contractor and Submit to the CDOT Project Manaaer X 11.9 (FHWA Form 47 discontinued) N/A N/A 11.10 Complete and Submit CDOT Form 1212 -Final Acceptance RePort (bv CDOT) X 11.11 Process Final Pavment X # 11.12 Complete and Submit CDOT Form 950 -Project Closure X 11.13 Retain Project Records for Six Years from Date of Project Closure X 11.14 Retain Final Version of Local Agency Contract Administration Checklist X Contract Number: 20-HTR-ZL-03179/491002132 Page 32 of 32 Version I 0/30/19 February 18, 2020 - Page 37 of 121 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: Grand View at L ionshead Management Agreement B AC K G RO UND: Management contract between Town of Vail and Donovan P avilion Management, I nc. for services managing the Grand View meeting space at the L ionshead Welcome Center. S TAF F RE C O M M E ND AT IO N: A uthorize the Town Manager to enter into a five year agreement with Donovan P avilion Management, I nc for managing the Grand View meeting space at the L ionshead Welcome Center. AT TAC H ME N TS: Description Grand View at Lionshead Management Agreement February 18, 2020 - Page 38 of 121 To: Town Council From: Finance Director, Assistant Town Manager, Donovan Management Pavilion, Inc. Date: February 18, 2020 Subject: Management Contracts (2) for Donovan Pavilion and Grand View at Lionshead Welcome Center 1. PURPOSE The consent agenda includes two new renewal agreements for management services with Donovan Pavilion Management, Inc. for two of the town’s facilities, Donovan Pavilion and Grand View at Lionshead Welcome Center. Town Council approved staff to renew the services with Donovan Pavilion Management, Inc. The two contracts show effective dates as January 1, 2021 through December 31, 2025. The current agreements also include the clause that states at the end of the fourth year (five-year term) the town may negotiate a renewal. The clause is helpful since it addresses the fact there are typically reservations already taking place a full year out. 2. BACKGROUND Staff presented information related to the renewal of the town’s management agreement with Donovan Management Pavilion, Inc. at the November 5, 2019 council meeting. At that time, there were programming, utilization and financial updates presented to Council (see exhibit below for link to documents). As a reminder, with the Donovan Pavilion nearing 15 years in operation, the town has budgeted capital improvements over the next two years; including:  2020: replace furniture used by guests (tables, chairs, cushions, etc.).  2020 & 2021: adding additional storage area and minor interior renovations ($75K in 2020 for planning and design, $680K in 2021 for construction)  2021: replacement and relocation of the heating & ventilation (HVAC) system; while the HVAC system is still functional from a mechanical standpoint, the noise disruption during paid events is not reflective of the Vail brand or expected level of service. A more effective and efficient system will be proposed, which includes relocating the equipment outside the building. 3. ACTION REQUESTED Staff requests Council’s approval of each management contract with Donovan Pavilion Management, Inc. to manage 1) the Donovan Pavilion, and 2) Grand View located at Lionshead Welcome Center. The term of the agreement is five years beginning 2021 and ending 2025. EXHIBITS:  Memo and Summary of Facility Utilization (Donovan and Grand View): https://vail.novusagenda.com/agendapublic/CoverSheet.aspx?ItemID=11783&MeetingID=999 ). February 18, 2020 - Page 39 of 121 1 2/13/2020 H:\CLIENT FILES\ASMUSSEN, LAURIE\DONOVAN PAVILION\MANAGEMENT CONTRACTS WITH TOV\2020\GRAND VIEW MGMT AGMT FINAL FOR SIGNATURE 2-13-2020.DOC GRAND VIEW AT LIONSHEAD MANAGEMENT AGREEMENT BETWEEN THE TOWN OF VAIL AND DONOVAN PAVILION MANAGEMENT, INC. THIS AGREEMENT is entered into on this 18tht day of February, 2020, by the TOWN OF VAIL, a Colorado municipal corporation (the "Town") and DONOVAN PAVILION MANAGEMENT, INC., a Colorado corporation (the "Management Company") (each individually a "Party" and collectively, the "Parties"). WHEREAS, the Town owns the Grand View at Lionshead (the "Grand View"), a multi- use community gathering space located at 395 South Frontage Road, Vail, CO 81657; WHEREAS, the Town wishes to market and make the Grand View available for public and private meetings and events; WHEREAS, the Town wishes to retain the services of the Management Company to operate, market and manage the Grand View to maximize the use of the Grand View by the general public; and WHEREAS, the parties wish to enter into an agreement to establish the amount, duration, terms and conditions for the Management Company to provide such services to the Town. NOW, THEREFORE, for the consideration hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged the Parties agree as follows: 1. SCOPE OF SERVICES. The Town desires to retain the Management Company to perform the duties described on Exhibit A attached hereto and incorporated by reference herein. The Management Company agrees to perform the duties in accordance with the Approved Operating Budget (defined below), as amended by the Town. 2. ADMINISTRATIVE RESPONSIBILITIES AND CONTROL OF FUNDS. 2.1 Books and Records. The Management Company shall maintain adequate and separate books and records for the Grand View in accordance with Accrual-Method Tax Basis Accounting, which shall be supported by sufficient documentation to ascertain that said entries are properly and accurately recorded. The Management Company shall maintain such control over accounting and financial transactions as is reasonably required to protect the Town's assets from theft, error or fraudulent activity and shall make such records available to the Town upon reasonable request therefore without delay and without expense. The Management Company agrees the Town shall have the right, through its duly authorized employees, agents or representatives, to examine all pertinent records and other reports required to be provided and filed with the Town at any and all reasonable times for the purpose of determining the accuracy thereof. February 18, 2020 - Page 40 of 121 2 2/13/2020 H:\CLIENT FILES\ASMUSSEN, LAURIE\DONOVAN PAVILION\MANAGEMENT CONTRACTS WITH TOV\2020\GRAND VIEW MGMT AGMT FINAL FOR SIGNATURE 2-13-2020.DOC 2.2 Budget. The Management Company shall prepare and submit to the Town an annual operating budget for the forthcoming year in accordance with the Town's budget timetable. The Town shall consider the proposed budget, consult with the Management Company, and agree on an "Approved Operating Budget" for the forthcoming fiscal year. The Approved Operating Budget shall serve as a guideline to the Management Company in operating the Grand View, and the Management Company agrees to use diligence and to employ all reasonable efforts to the effect that the actual cost of operating the Grand View shall not exceed the Approved Operating Budget pertaining thereto. 2.3 Reconciliation. The Management Company shall provide a summary of revenue and expenditures compared with the Approved Operating Budget bi-annually, on or before January 31 and October 31 of each year and shall present this information to the Town Council or the advisory committee as may be requested; expenditures may not exceed the Approved Operating Budget without prior written approval of the Town Council. In addition, the Management Company shall provide a summary of revenue and expenditures compared with the Approved Operating Budget within 30 days of the end of the calendar year, with a check payable to the "Town of Vail" for the difference between the Approved Operating Budget and amounts actually spent. 2.4 Billing. The Management Company shall establish a billing system to provide adequate control over revenue and to provide information that the Management Company deems necessary to manage the Grand View 's operations, collect all rental fees, deposits, etc. per rates established in the Operating Plan. 2.5 Bank Account. The Management Company shall establish a checking account in the Management Company's name to deposit revenue checks and to disburse payments to vendors. 2.6 Payments to Vendors. The Management Company shall make payments to vendors and the Management Company employees per the Approved Operating Budget. 2.7 Fees. The Management Company will remit monthly all rental fees, damage charges, and miscellaneous receipts by the 25th day of the following month. Security deposits which may be refundable to the renter will be retained by the Management Company until such time as they are used to pay for damages incurred. If no damages are assessed, the Management Company will return the deposits directly to the renter. 2.8 Payments by Town. Beginning January 1, 2021, the Town shall make a payment to the Management Company on the first business day of each quarter in an amount equal to one- quarter of the Approved Operating Budget less the Base Fee. Such payment shall be used as operating funds. 2.9 Maintenance and Repairs. The Town owns the Grand View and shall be responsible for its condition, care and upkeep, and the costs associated with same. The Town and the Management Company will determine if a maintenance cost will be attributed to the Grand View Operating Budget or the Town's general budget. The Management Company shall take good care of the premises and the fixtures and improvements therein, including, without February 18, 2020 - Page 41 of 121 3 2/13/2020 H:\CLIENT FILES\ASMUSSEN, LAURIE\DONOVAN PAVILION\MANAGEMENT CONTRACTS WITH TOV\2020\GRAND VIEW MGMT AGMT FINAL FOR SIGNATURE 2-13-2020.DOC limitation, any storefront, doors, plate glass, windows, heating and air conditioning system, plumbing, pipes, electrical wiring and conduits, and shall promptly notify the Town of problems or maintenance required at the Grand View. The Management Company will take security deposits from parties booking the Grand View; however, the Management Company is not responsible for any damage done to the Grand View or the surrounding Town property by third parties. In case of system breakdowns, the Management Company will first contact the Town of Vail, Facilities Maintenance supervisor, if during normal business hours. If after hours, the Management Company will contact an outside repair company on a list of approved vendors that will be provided by the Facilities Maintenance Supervisor. In an emergency situation the Management Company is authorized to contact an approved vendor immediately. 2.10 Web Site Inclusion. The Town will provide the Management Company access to the Town website. The Management Company is to provide appropriate content and update the site in a timely fashion. 2.11 Client Referrals. The Management Company will refer prospective clients to lodging properties and event venues located within Vail for additional group activities. If there is not a property located within Vail that meets the client’s needs, then the Management Company will refer the client to other venues located within Eagle County. 2.12 Entities Affiliated with Management Company. The Town acknowledges that Laurie Asmussen also owns and operates Eagle Valley Events, Inc., which offers wedding and event planning services. The Town consents to the Management Company contracting with customers or clients of Eagle Valley Events, Inc. to reserve or rent the Grand View under the same terms as would be offered to any other patron renting the Grand View. The Town also consents to the Management Company contracting with its affiliated personnel and entities to provide janitorial and other services for the Grand View at commercially reasonable rates. 3. TERM AND TERMINATION. 3.1. The term of this Agreement shall begin January 1, 2021 and shall continue through December 31, 2026, unless terminated by either Party as provided in Section 3.2. 3.2. This Agreement may be terminated at any time without cause by the Management Company or the Town if the terminating Party has given 90 days' prior written notice to the other Party. The Town may terminate this Agreement at any time upon 30 days' written notice with cause. Cause shall be defined as the occurrence of any of the following events relating to the Management Company: 3.2.1. The Management Company fails to perform any of its services in the manner or within the time required herein; or 3.2.2. The Management Company commits or permits a material breach of or defaults in any of its duties, liabilities or obligations hereunder. 3.3. To terminate this Agreement for cause, the Town must first give written notice to the Management Company of the default and the Management Company shall have 15 days from February 18, 2020 - Page 42 of 121 4 2/13/2020 H:\CLIENT FILES\ASMUSSEN, LAURIE\DONOVAN PAVILION\MANAGEMENT CONTRACTS WITH TOV\2020\GRAND VIEW MGMT AGMT FINAL FOR SIGNATURE 2-13-2020.DOC the date of the notice to cure such default. If the default remains uncured after 15 days, the Town may terminate this Agreement by written notice, effective on the date of such notice. The Parties acknowledge that in the event this Agreement is terminated in accordance with any of its provisions, the Management Company may have existing contractual obligations with third parties as the result of contracts relating to the Grand View which the Management Company has entered or facilitated. Upon termination of this Agreement, the Management Company will assign all existing contracts relating to the Grand View to the Town or its designated successor and the Town or designated successor will assume all duties of the Management Company which may arise from said contracts, provided that the Town determines such contracts to be commercially reasonable, in its reasonable discretion, and Management Company shall be released from its duties and obligations under said contracts. 3.4. This Agreement may also be terminated by the Management Company in the event of a material default of any of the terms and conditions of this Agreement by the Town, provided the Management Company has first provided the Town with written notice of the default and the Town shall have failed to cure the specified default within 15 days of the date of the notice. In the event of termination with or without cause, the Management Company shall be paid its Management Fee as set forth in the Approved Operating Budget on a pro-rata basis for work satisfactorily completed prior to the date of termination, and for expenses incurred prior to the date of termination. 3.5 If the Town terminates this Agreement without cause (pursuant to §3.2 above), the Management Company will be paid a commission on all pending bookings at the rate specified on the Commission Structure in Section 4 below. Payment of the commission(s) will be made to Management Company after completion of the booked event. If the Management Company terminates this Agreement without cause (pursuant to §3.2 above), the Management Company shall not be entitled to receive commissions on pending bookings. 3.6 Upon expiration of the fourth year of the term of this Agreement, the Town shall, at its option, either negotiate a new agreement with the Management Company or request proposals from the public. If proposals are to be taken, the Town agrees to give notice of same to the Management Company not less than 30 days prior to the end of this Agreement term. 4. CONSIDERATION 4.1 The Town agrees to compensate the Management Company for management services performed under this Agreement as follows: 4.1.1 During the term of this Agreement an annual Base Fee of $55,000, to be paid in 12 equal monthly installments of $4,583.33. Each payment of the Base Fee will be paid by the last day of the month in which service is rendered. The Base Fee shall be increased by 2% after each 24 month period and the monthly installments increased accordingly. 4.1.2 The Management Company will also be paid for certain expenses, including without limitation cleaning and staff, related to managing Grand View in accordance with rates set forth on a rate sheet approved by the Town staff annually. February 18, 2020 - Page 43 of 121 5 2/13/2020 H:\CLIENT FILES\ASMUSSEN, LAURIE\DONOVAN PAVILION\MANAGEMENT CONTRACTS WITH TOV\2020\GRAND VIEW MGMT AGMT FINAL FOR SIGNATURE 2-13-2020.DOC 4.1.3 Cancelled Events. If an event is cancelled and the deposit retained, the retained deposit shall be shared equally between the Town and the Management Company. 5. ANNUAL APPROPRIATION. Notwithstanding anything herein contained to the contrary, the Town's obligations under this Agreement are expressly subject to an annual appropriation being made by the Vail Town Council in an amount sufficient to allow the Town to perform its obligations hereunder. In the event sufficient funds shall not be appropriated for the payment of sums due hereunder, this Agreement may be terminated by either party without penalty. The Town's obligations hereunder shall not constitute a general obligation indebtedness or multiple-year direct or indirect debt or other financial obligation whatsoever within the meaning of the Constitution or laws of the State of Colorado. 6. ILLEGAL ALIENS. 6.1. Certification. By entering into this Agreement, the Management Company 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 the Management Company will participate in either the E-Verify Program administered by the U.S. 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. 6.2. Prohibited Acts. The Management Company shall not knowingly employ or contract with an illegal alien to perform work under this Agreement, or enter into a contract with a subcontractor that fails to certify to the Management Company that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. 6.3. Verification. 6.3.1. If the Management Company has employees, Management Company 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. 6.3.2. The Management Company 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. 6.3.3. If the Management Company 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, the Management Company shall: notify the subcontractor and the Town within 3 days that the Management Company has actual knowledge that the subcontractor is employing or contracting with an illegal alien who is performing work under this Agreement; and February 18, 2020 - Page 44 of 121 6 2/13/2020 H:\CLIENT FILES\ASMUSSEN, LAURIE\DONOVAN PAVILION\MANAGEMENT CONTRACTS WITH TOV\2020\GRAND VIEW MGMT AGMT FINAL FOR SIGNATURE 2-13-2020.DOC terminate the subcontract with the subcontractor if within 3 days of receiving the notice required pursuant to Section 6.3.1, the subcontractor does not stop employing or contracting with the illegal alien who is performing work under this Agreement; except that the Management Company shall not terminate the subcontract if during such 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. 6.4. Duty to Comply with Investigations. The Management Company shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation conducted pursuant to C.R.S. § 8-17.5-102(5)(a) to ensure that the Management Company is complying with the terms of this Agreement. 6.5. Affidavits. If the Management Company does not have employees, the Management Company shall sign the "No Employee Affidavit" attached hereto. If the Management Company wishes to verify the lawful presence of newly hired employees who perform work under the Agreement via the Department Program, the Management Company shall sign the "Department Program Affidavit" attached hereto. 7. PERSONNEL. 7.1 The Management Company agrees that the principal personnel responsible for the performance of this Agreement will be Laurie Asmussen, but the Management Company may have employees, independent contractors and subcontractors assist in the performance of duties under this Agreement. The Management Company further agrees that no substitute of the principal personnel shall be made without the prior written approval of the Town. None of the services provided for in this Agreement, including the principal personnel, shall be modified without the prior written approval of the Town. 7.2 The Management Company represents that its personnel and subcontractors engaged in this project are fully qualified and properly trained to perform the services related to this Agreement. 8. INDEPENDENT CONTRACTOR. The Management Company is an independent contractor, and nothing contained in this Agreement shall constitute or designate the Management Company or any of its employees or subcontractors as agents (except as expressly set forth in this Agreement) or employees of the Town. Further, it is agreed that: 8.1. The Town does not require the Management Company to work exclusively for it; 8.2. The Town, for whom the services are to be performed, does not establish a quality standard for the Management Company; 8.3. The Town will not oversee the actual work or instruct the Management Company as to how the work will be performed; February 18, 2020 - Page 45 of 121 7 2/13/2020 H:\CLIENT FILES\ASMUSSEN, LAURIE\DONOVAN PAVILION\MANAGEMENT CONTRACTS WITH TOV\2020\GRAND VIEW MGMT AGMT FINAL FOR SIGNATURE 2-13-2020.DOC 8.4. The Town can terminate this Agreement if the Management Company violates the terms of this Agreement or fails to produce a result that meets the specifications of this Agreement; 8.5. The Town does not provide training for the Management Company's employees or workers; 8.6. The Town does not provide tools or benefits to complete this Agreement although materials and equipment may be supplied; 8.7. The Town does not dictate the time of performance except that a completion schedule and range of work hours may be established; 8.8. Payment for services rendered pursuant to this Agreement will be made to the trade or business name of the provider of services rather than to the individual; and 8.9. The Town does not in any way combine its business operations with those of the Management Company. THE MANAGEMENT COMPANY AS AN INDEPENDENT CONTRACTOR, IS NOT ENTITLED TO WORKERS' COMPENSATION BENEFITS AND IS OBLIGATED TO PAY FEDERAL AND STATE INCOME TAX ON ANY MONIES EARNED. 9. INSURANCE. The Management Company shall obtain and maintain in force for the term of this Agreement the following insurance: 9.1 A Comprehensive general liability insurance policy, including products liability, with limits of not less than $1,000,000.00 per occurrence and not less than $2,000,000.00 general aggregate for bodily injury or death of any person or persons or damage to property. 9.2. Worker's Compensation and employer liability in accordance with the Worker's Compensation Act of the State of Colorado. 9.3. Automobile liability (including owned, non-owned, and hired) in an amount not less than $100,000.00 per individual and not less than $300,000.00 per occurrence. 9.4 The above coverages shall be obtained from companies acceptable to the Town. Certificates of Insurance evidencing automobile liability coverage shall be furnished to the Town at the time of the signing of this Agreement. The general liability policy shall include the Town as an additional named insured by policy endorsement. Subcontractors of the Management Company shall carry the above insurances to the extent of their contractual limits. The coverages afforded under the policies shall not be canceled, terminated or materially changed without at least 30 days prior written notice 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 the Management Company. The Management Company shall be solely responsible for any deductible losses under any policy. February 18, 2020 - Page 46 of 121 8 2/13/2020 H:\CLIENT FILES\ASMUSSEN, LAURIE\DONOVAN PAVILION\MANAGEMENT CONTRACTS WITH TOV\2020\GRAND VIEW MGMT AGMT FINAL FOR SIGNATURE 2-13-2020.DOC 10. INDEMNIFICATION. The Management Company 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 or the Grand View, unless caused by the negligence of the Town. This indemnification shall survive the expiration or termination of this Agreement. 11. UTILITIES AND SERVICES. The Town agrees that it will furnish at no cost to the Management Company the necessary electricity, heating, lighting, and water for the Grand View. The Management Company will provide janitorial, trash removal, and all other services necessary to maintain the Grand View in a clean and orderly condition, and such services will be paid for by the Management Company with funds provided by the Town and set forth in the Approved Operating Budget. 12. SERVICE OF ALCOHOLIC BEVERAGES. The Management Company shall include, with each event contract agreement, a diagram, rules and guidelines of alcohol permitted areas of the Grand View and patio areas where alcohol service, consumption and storage will be controlled to insure that all rules and regulations of the Colorado Liquor Code and the Town regulations are adhered to during each event held at the Grand View. 13. PROPRIETARY INFORMATION. 13.1 The Management Company shall retain as its sole and separate property all its proprietary information which has a unique nature and value, including such matters as, but not limited to, the Management Company's business operations, internal structure and financial affairs; the Management Company's systems and procedures; confidential reports and lists of former, present and prospective customers, vendors, suppliers, subcontractors and employees; the Management Company's marketing and business strategy; the pricing structure, information relating to proposed publications and other products; and other proprietary and confidential information, all of which is and shall be deemed to be proprietary and confidential information (the "Proprietary and Confidential Information"). The Management Company shall retain all rights to the Proprietary and Confidential Information. 13.2 All financial books, records, except those prepared for the Town, instruments and documents; customer lists; data; reports; programs; software; hardware; tapes; rolodexes; telephone and address books; listings; programming; customer files and records; and any and all other instruments, records and documents recorded or stored on any medium (collectively, the "Records") shall at all times be and remain the property of the Management Company. Upon the termination of this Agreement, the Town shall return to the Management Company all Records and the Town shall neither make nor retain any copies of any such Records after such cessation. 13.3. Notwithstanding the foregoing, the Parties hereby acknowledge and agree that the information described in this Section 12 may be subject to disclosure and/or retention pursuant to the Colorado Open Records Act, C.R.S. § 24-72-201, et seq., as amended. February 18, 2020 - Page 47 of 121 9 2/13/2020 H:\CLIENT FILES\ASMUSSEN, LAURIE\DONOVAN PAVILION\MANAGEMENT CONTRACTS WITH TOV\2020\GRAND VIEW MGMT AGMT FINAL FOR SIGNATURE 2-13-2020.DOC 14. NO WAIVER. No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other provision of this Agreement, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided, nor shall the waiver of any default of this Agreement be deemed a waiver of any subsequent default. 15. MISCELLANEOUS. 15.1. Amendment. Except as otherwise herein provided, any and all amendments, additions or deletions to this Agreement shall be null and void unless approved by the parties affected thereby in writing. 15.2. Complete Agreement. This Agreement and attached exhibits supersede and take the place of any and all previous Management Agreements entered into between the parties hereto. 15.3. Binding Nature. This Agreement shall be binding upon and inure to the benefit of the Parties, each of their successors and permitted assigns, and shall be binding upon and inure to the benefit of the Management Company, and its permitted assigns. 15.4. Governing Law and Venue. This Agreement shall be construed, interpreted and applied in accordance with and shall be governed by, the laws applicable in the State of Colorado, and venue for any legal action arising out of this Agreement shall be in Eagle County, Colorado. 15.5. Rebates. The Management Company agrees it will not collect or charge any undisclosed fee, rebate or discount, and if any such fee, rebate or discount should be received by the Management Company, these will be credited to the account of the Town. 15.6. Notice. Any written notice required pursuant to this Agreement shall be deemed given on the third business day after mailing if mailed, certified mail, return receipt requested, to the respective parties at the addresses below: Assistant Town Manager Town of Vail 75 S. Frontage Road Vail, Colorado 81657 Ph. 970/479-2113 Donovan Grand View Management, Inc. 1600 S. Frontage Road Vail, Colorado 81657 Attn: Laurie Asmussen Ph. 970/477-3699 February 18, 2020 - Page 48 of 121 10 2/13/2020 H:\CLIENT FILES\ASMUSSEN, LAURIE\DONOVAN PAVILION\MANAGEMENT CONTRACTS WITH TOV\2020\GRAND VIEW MGMT AGMT FINAL FOR SIGNATURE 2-13-2020.DOC With a copy to: Ann Hutchison Hutchison Law Firm, LLC P.O. Box 394 Gypsum, CO 81637 15.7. Assignment. It is anticipated that some of the services described within this Agreement will be contracted for by the Management Company. The Management Company will advise the Assistant Town Manager of contracts entered into for services to be provided pursuant to this Agreement. 15.8. Compliance with Law. The Management Company will not perform any of the services provided specified in this Agreement contrary to any local, state, federal, or county law. 15.9. Severability. Should any provision of this Agreement be found to be invalid, all other provisions shall remain in full force and effect as though severable from the part invalidated. 15.10 Governmental Immunity. The Town and its officers, attorneys and employees are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations 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, attorneys or employees. IN WITNESS WHEREOF, the Parties have caused this Agreement to be made the day and year first above written. TOWN OF VAIL, COLORADO ______________________________ Scott Robson, Town Manager ATTEST: _______________________________ Tammy Nagel, Town Clerk February 18, 2020 - Page 49 of 121 11 2/13/2020 H:\CLIENT FILES\ASMUSSEN, LAURIE\DONOVAN PAVILION\MANAGEMENT CONTRACTS WITH TOV\2020\GRAND VIEW MGMT AGMT FINAL FOR SIGNATURE 2-13-2020.DOC DONOVAN PAVILION MANAGEMENT, INC., a Colorado corporation By: ______________________________________ Laurie Asmussen, President State of Colorado ) )ss County of Eagle ) Subscribed to and, affirmed before me by Laurie Asmussen, in the County of Eagle, State of Colorado, this ____ day of _____________________, 20___. ________________________________ Notary Public February 18, 2020 - Page 50 of 121 12 2/13/2020 H:\CLIENT FILES\ASMUSSEN, LAURIE\DONOVAN PAVILION\MANAGEMENT CONTRACTS WITH TOV\2020\GRAND VIEW MGMT AGMT FINAL FOR SIGNATURE 2-13-2020.DOC Grand View Management Company Contract Reservations Plan All reservations for the Grand View will be tracked via an internal reservation system. Entries and modifications will be password secured and done only by authorized personnel. Nonprofit groups (i.e. educational, social philanthropic organizations) who are approved by the Vail Town Council or Town Manager's office for complimentary facility usage, will be asked to place a deposit on the space for cleaning purposes. Clients who book the Grand View for an event will receive a contract outlining the deposit/payment/security deposit requirements. All bookings will be paid in full prior to the event. Anon-refundable deposit will be required at the time the booking is confirmed. If a Client requests to cancel an event and the Management Company is able to re-book the space, the deposit will be returned to the canceled party. The Management Company will keep a current, up-to-date calendar that will be distributed to appropriate Town departments including: • Town Administration • Fire • Parking Dept. Staffing Plan The Grand View will be staffed with the following positions during event times, including set-up and take down: • Facility staff member • Security personnel • Janitorial personnel will be on-site following the event Additional staffing, subcontracted for the group, may include: • Catering manager and wait staff • A/V personnel • Entertainment assistance All vendors must obtain pre-approval to work any event in the Grand View. The Management Company will review the application submitted by the vendor who agrees to adhere to all guidelines for doing business in the Town of Vail and agree to adhere to all Town of Vail policies. The Management Company will keep regular office hours and conduct tours of the facility, either with drop-in clients or scheduled tours. February 18, 2020 - Page 51 of 121 13 2/13/2020 H:\CLIENT FILES\ASMUSSEN, LAURIE\DONOVAN PAVILION\MANAGEMENT CONTRACTS WITH TOV\2020\GRAND VIEW MGMT AGMT FINAL FOR SIGNATURE 2-13-2020.DOC An emergency/after hours cell number will be stated on the Grand View voice mail so that the Management Company may be reached 24 hours a day/ 7 days a week. Information requests will be sent to prospective clients in a timely and efficient manner. A database will be created and maintained consisting of all current clients, perspective clients and previous clients. Informative collateral will be sent out, either via e-mail, fax or in written form, on a regular basis to maintain these contacts. Facility Guidelines The rate structure for the Grand View encompasses a Peak and Off-Peak season for year around bookings. All clients booking the facility will be issued a Facility Rental contract that outlines: • The facility usage • Event Guidelines for Grand View use • Facility rental checklist • The deposit and payment schedule • Required security needs • Vendor application for pre-approval to provide service to Grand View clients • Vendor checklist • Indemnification provisions Discounted & Complimentary Use Plan The Grand View will be made available to certain individuals and non-profit organizations at a reduced or complimentary rate as more fully described in "Discounted Use Categories for Use on Monday through Thursday", attached hereto and incorporated by this reference herein. The Management Company will screen & review all applications submitted by individuals and/or non-profit organizations seeking a reduced or complimentary rate and will notify Town manager's staff of the application. The Town Manager's staff will have the sole authority to approve such use. The Management Company will invoice the Town annually for costs incurred by The Management Company resulting from the complimentary or reduced rate uses and the Town will reimburse the Management Company for such costs each year. Alcohol Service For events serving alcoholic beverages, the Management Company requires the services of a professional Security Company to be on-site during the entire event. These fees will be paid by the client. February 18, 2020 - Page 52 of 121 14 2/13/2020 H:\CLIENT FILES\ASMUSSEN, LAURIE\DONOVAN PAVILION\MANAGEMENT CONTRACTS WITH TOV\2020\GRAND VIEW MGMT AGMT FINAL FOR SIGNATURE 2-13-2020.DOC All functions where alcoholic beverages are served must have a TIPS-trained bartender to distribute the alcohol. As outlined in the fee structure, all groups wishing to serve alcohol will be assessed an Alcohol Usage Fee. Such fee will be determined by the Management Company. Marketing Plan Executive Summary The Management Company team will provide professional operational, event management, sales/ marketing/PR for the Grand View. The primary, but not exclusive, focus encompasses: • Selling the Grand View as a multi-purpose facility for Vail residents, Eagle County residents and visitors to the area • Promoting the Grand View as a first class facility • Promoting the Grand View for a wide variety of events such as: weddings, corporate meetings, rehearsal dinners, memorial services, and others • Promoting the Grand View as an enticement sales tool for sales managers who focus on bringing guests to Vail • Managing the operation of the Grand View as a first class, yet comfortable, venue • Maintaining open communication between the, Town staff to keep the Grand View operating as a revenue producing entity for the Town. Mission Statement The primary purpose of the Grand View is as a venue available for lease by residents and visitors at which an event may be held. The Grand View shall also serve as a community gathering place, attracting residents of Vail and the surrounding area to meet in a social or corporate setting. Goals & Objectives The Management Company has the following goals and objectives: Establish awareness of the Grand View as an alternative gathering place for leisure and corporate groups visiting the Vail Valley. Establish attractive rates for the renting of the facility in order to entice usage. Focus on seasonal group rentals to establish base clientele working toward a year -round strategy. Manage the facility in a professional manner including: o keeping accurate records of all event activity in the Grand View maintaining a clean and safe environment for guests. o have established procedures in place for management and facility users . o timely reporting to Town on facility usage and management. Utilize research to adjust operational plan according to economic climate of the Vail Valley and surrounding areas. February 18, 2020 - Page 53 of 121 15 2/13/2020 H:\CLIENT FILES\ASMUSSEN, LAURIE\DONOVAN PAVILION\MANAGEMENT CONTRACTS WITH TOV\2020\GRAND VIEW MGMT AGMT FINAL FOR SIGNATURE 2-13-2020.DOC Segment Strategy The Grand View is located in a resort community where corporate and leisure groups are consistently seeking new venues for their functions, the Grand View offers a unique alternative. The Management Company's strategy for targeting the above corporate and leisure market is to establish and maintain relationships with sales partners in the Vail Valley. These partners include: Wedding planners Hotel sales managers Vail Valley Partnership sales managers February 18, 2020 - Page 54 of 121 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: J ohn F. Donovan P avilion Management Agreement B AC K G RO UND: Management contract between Town of Vail and Donovan P avilion Management, I nc. for services associated with managing Donovan Pavilion. S TAF F RE C O M M E ND AT IO N: Authorize the Town Manager to enter into a five year agreement with Donovan P avilion Management, I nc for services associated with managing the Donovan P avilion. AT TAC H ME N TS: Description Donovan Management Memorandum February 18, 2020 - Page 55 of 121 To: Town Council From: Finance Director, Assistant Town Manager, Donovan Management Pavilion, Inc. Date: February 18, 2020 Subject: Management Contracts (2) for Donovan Pavilion and Grand View at Lionshead Welcome Center 1. PURPOSE The consent agenda includes two new renewal agreements for management services with Donovan Pavilion Management, Inc. for two of the town’s facilities, Donovan Pavilion and Grand View at Lionshead Welcome Center. Town Council approved staff to renew the services with Donovan Pavilion Management, Inc. The two contracts show effective dates as January 1, 2021 through December 31, 2025. The current agreements also include the clause that states at the end of the fourth year (five-year term) the town may negotiate a renewal. The clause is helpful since it addresses the fact there are typically reservations already taking place a full year out. 2. BACKGROUND Staff presented information related to the renewal of the town’s management agreement with Donovan Management Pavilion, Inc. at the November 5, 2019 council meeting. At that time, there were programming, utilization and financial updates presented to Council (see exhibit below for link to documents). As a reminder, with the Donovan Pavilion nearing 15 years in operation, the town has budgeted capital improvements over the next two years; including:  2020: replace furniture used by guests (tables, chairs, cushions, etc.).  2020 & 2021: adding additional storage area and minor interior renovations ($75K in 2020 for planning and design, $680K in 2021 for construction)  2021: replacement and relocation of the heating & ventilation (HVAC) system; while the HVAC system is still functional from a mechanical standpoint, the noise disruption during paid events is not reflective of the Vail brand or expected level of service. A more effective and efficient system will be proposed, which includes relocating the equipment outside the building. 3. ACTION REQUESTED Staff requests Council’s approval of each management contract with Donovan Pavilion Management, Inc. to manage 1) the Donovan Pavilion, and 2) Grand View located at Lionshead Welcome Center. The term of the agreement is five years beginning 2021 and ending 2025. EXHIBITS:  Memo and Summary of Facility Utilization (Donovan and Grand View): https://vail.novusagenda.com/agendapublic/CoverSheet.aspx?ItemID=11783&MeetingID=999 ). February 18, 2020 - Page 56 of 121 1 JOHN F. DONOVAN PAVILION MANAGEMENT AGREEMENT BETWEEN THE TOWN OF VAIL AND DONOVAN PAVILION MANAGEMENT, INC. THIS AGREEMENT is entered into this 18th day of February 2020, by the TOWN OF VAIL, a Colorado home rule municipality (the "Town") and DONOVAN PAVILION MANAGEMENT, INC., a Colorado corporation (the "Management Company") (each individually a "Party" and collectively, the "Parties"). WHEREAS, the Town owns the John F. Donovan Pavilion (the "Pavilion"), a multi-use community gathering space located at 1600 South Frontage Road, Vail, CO 81657; WHEREAS, the Town wishes to market and make the Pavilion available for public and private meetings and events; WHEREAS, the Town wishes to retain the services of the Management Company to operate, market and manage the Pavilion to maximize the use of the Pavilion by the general public; and WHEREAS, the Parties wish to enter into an agreement to establish the amount, duration, terms and conditions for the Management Company to provide such services to the Town. NOW, THEREFORE, for the consideration hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. SCOPE OF SERVICES. The Town desires to retain the Management Company to perform the duties described in Exhibit A attached hereto and incorporated by this reference. The Management Company agrees to perform the duties in accordance with the Approved Operating Budget (defined below), as amended by the Town. 2. ADMINISTRATIVE RESPONSIBILITIES AND CONTROL OF FUNDS. 2.1. Books and Records. The Management Company shall maintain adequate and separate books and records for the Pavilion in accordance with Accrual-Method Tax Basis Accounting, which shall be supported by sufficient documentation to ascertain that said entries are properly and accurately recorded. The Management Company shall maintain such control over accounting and financial transactions as is reasonably required to protect the Town's assets from theft, error or fraudulent activity and shall make such records available to the Town upon reasonable request therefore without delay and without expense. The Management Company agrees the Town shall have the right, through its duly authorized employees, agents or representatives, to examine all pertinent records and other reports required to be provided and filed with the Town at any and all reasonable times for the purpose of determining the accuracy thereof. 2.2. Budget. The Management Company shall prepare and submit to the Town an annual operating budget for the forthcoming year in accordance with the Town's budget timetable. The Town shall consider the proposed budget, consult with the Management Company, and agree on an "Approved Operating Budget" for the forthcoming fiscal year. The February 18, 2020 - Page 57 of 121 2 Approved Operating Budget shall serve as a guideline to the Management Company in operating the Pavilion, and the Management Company agrees to use diligence and to employ all reasonable efforts to the effect that the actual cost of operating the Pavilion shall not exceed the Approved Operating Budget pertaining thereto. 2.3. Reconciliation. The Management Company shall provide a summary of revenue and expenditures compared with the Approved Operating Budget bi-annually, on or before January 31 and October 31 of each year, and shall present this information to the Town Council or the advisory committee as may be requested by the Town; expenditures may not exceed the Approved Operating Budget without prior written approval of the Town Council. In addition, the Management Company shall provide a summary of revenue and expenditures compared with the Approved Operating Budget within 30 days of the end of the calendar year, with a check payable to the "Town of Vail" for the difference between the Approved Operating Budget and amounts actually spent. 2.4. Billing. The Management Company shall establish a billing system to provide adequate control over revenue and to provide information that the Management Company deems necessary to manage the Pavilion's operations, collect all rental fees, deposits, etc. per rates established in the Approved Operating Budget. 2.5. Bank Account. The Management Company shall establish a checking account in the Management Company's name to deposit revenue checks and to disburse payments to vendors. 2.6. Payments. The Management Company shall make payments to vendors and the Management Company employees per the Approved Operating Budget. 2.7. Fees. The Management Company will remit monthly all rental fees, damage charges, and miscellaneous receipts by the 25th day of the following month. Security deposits which may be refundable to the renter will be retained by the Management Company until such time as they are used to pay for damages incurred. If no damages are assessed, the Management Company will return the deposits directly to the renter. 2.8. Payments. The Town shall make a payment to the Management Company for use as operating funds on the first business day of each quarter which is amount shall be equal to one-quarter of the Approved Operating Budget less the Base Fee, which budget may be adjusted by the Town. 2.9. Maintenance and Repairs. The Town owns the Pavilion and shall be responsible for its condition, care and upkeep, and the costs associated with same. The Town and the Management Company will determine if a maintenance cost will be attributed to the Pavilion Operating Budget or the Town's general budget. The Management Company shall take good care of the Pavilion and the fixtures and improvements therein, including, without limitation, any storefront, doors, plate glass, windows, heating and air conditioning system, plumbing, pipes, electrical wiring and conduits, and shall promptly notify the Town of problems or maintenance required at the Pavilion. The Management Company will take security deposits from parties booking the Pavilion; however, the Management Company is not responsible for any damage February 18, 2020 - Page 58 of 121 3 done to the Pavilion or the surrounding Town property by third parties. In case of system breakdowns, the Management Company will first contact the Town Facilities Maintenance supervisor, if during normal business hours. If after hours, the Management Company will contact an outside repair company on a list of approved vendors that will be provided by the Facilities Maintenance Supervisor. In an emergency situation the Management Company is authorized to contact an approved vendor immediately. 2.10. Web Site Inclusion. The Town will provide the Management Company access to the Town website. The Management Company is to provide appropriate content and update the site in a timely fashion. 2.11. Client Referrals. The Management Company will refer prospective clients to lodging properties and event venues located within Vail for additional group activities. If there is not a property located within Vail that meets the client's needs, then the Management Company will refer the client to other venues located within Eagle County. 2.12. Entities Affiliated with Management Company. The Town acknowledges that Laurie Asmussen also owns and operates Eagle Valley Events, Inc. which offers wedding and event planning services. The Town consents to the Management Company contracting with customers or clients of Eagle Valley Events, Inc. to reserve or rent the Pavilion under the same terms as would be offered to any other patron renting the Pavilion. The Town also consents to the Management Company contracting with its affiliated personnel and entities to provide janitorial and other services for the Pavilion at commercially reasonable rates. 3. TERM AND TERMINATION. 3.1. The term of this Agreement shall begin January 1, 2021 and shall continue through December 31, 2026, unless terminated by either Party as provided in Section 3.2. 3.2. This Agreement may be terminated at any time without cause by the Management Company or the Town if the terminating Party has given 90 days' prior written notice to the other Party. The Town may terminate this Agreement at any time upon 30 days' written notice with cause. Cause shall be defined as the occurrence of any of the following events relating to the Management Company: 3.2.1. The Management Company fails to perform any of its services in the manner or within the time required herein; or 3.2.2. The Management Company commits or permits a material breach of or defaults in any of its duties, liabilities or obligations hereunder. 3.3. To terminate this Agreement for cause, the Town must first give written notice to the Management Company of the default and the Management Company shall have 15 days from the date of the notice to cure such default. If the default remains uncured after 15 days, the Town may terminate this Agreement by written notice, effective on the date of such notice. The Parties acknowledge that in the event this Agreement is terminated in accordance with any of its provisions, the Management Company may have existing contractual obligations with third parties as the result of contracts relating to the Pavilion which the Management Company has February 18, 2020 - Page 59 of 121 4 entered or facilitated. Upon termination of this Agreement, the Management Company will assign all existing contracts relating to the Pavilion to the Town or its designated successor and the Town or designated successor will assume all duties of the Management Company which may arise from said contracts, provided that the Town determines such contracts to be commercially reasonable, in its reasonable discretion, and Management Company shall be released from its duties and obligations under said contracts. 3.4. This Agreement may also be terminated by the Management Company in the event of a material default of any of the terms and conditions of this Agreement by the Town, provided the Management Company has first provided the Town with written notice of the default and the Town shall have failed to cure the specified default within 15 days of the date of the notice. In the event of termination with or without cause, the Management Company shall be paid its Management Fee as set forth in the Approved Operating Budget on a pro-rata basis for work satisfactorily completed prior to the date of termination, and for expenses incurred prior to the date of termination. In the event the Town terminates this Agreement without cause (pursuant to §3.2 above), the Management Company will also be paid a commission on all pending bookings at the rate specified on the Commission Structure in Section 4 below. Payment of the commission(s) will be made to Management Company after completion of the booked event. In the event the Management Company terminates this Agreement without cause pursuant to §3.2 above, it shall not be entitled to receive commissions on pending bookings. 3.5. Upon expiration of the fourth year of the term of this Agreement, the Town shall, at its option, either negotiate a new agreement with the Management Company or request proposals from the public. If proposals are to be taken, the Town agrees to give notice of same to the Management Company not less than 30 days prior to the end of this Agreement term. 4. COMPENSATION. 4.1 The Town agrees to compensate the Management Company for management services performed under this Agreement as follows: 4.1.1 During the term of this Agreement an annual Base Fee of $88,288.00 ("Base Fee"), to be paid in 12 equal monthly installments of $7,357.33. Each payment of the Base Fee will be paid by the last day of the month in which service is rendered. The Base Fee shall be increased by 2% after each 24 month period and the monthly installments increased accordingly. 4.1.2 As additional compensation, the Town will pay a commission to Management Company beginning when the year-to-date gross revenue earned, for accounting purposes, reaches the minimum amount shown in the commission structure set forth below and will be paid at the end of the month following the month in which it is reported. Gross revenue shall include the amounts generated from all rentals of the Pavilion building and its contents. Gross revenue shall not include any sales taxes, or other taxes that are collected and paid directly to the Town or other governmental entities; or security deposits paid to cover damages, or fees collected from the client’s initial deposit for onsite staff, alcohol security and/or cleaning. February 18, 2020 - Page 60 of 121 5 Annual Base Fee Commission structure $88,288 5% of gross revenue $88,000 – $102,000 8% of gross revenue $102,000 – $117,000 12% of gross revenue $117,000 – $132,000 15% of gross revenue over $132,000 4.1.3 The Management Company will also be paid for certain expenses related to managing Donovan Pavilion, including without limitation cleaning and staffing, in accordance with rates set forth on a rate sheet approved by the Town staff annually. 4.1.2 Cancelled Events. If an event is cancelled and the deposit retained, the retained deposited shall be shared equally between the Town and the Management Company. 5. ANNUAL APPROPRIATION. Notwithstanding anything herein contained to the contrary, the Town's obligations under this Agreement are expressly subject to an annual appropriation being made by the Vail Town Council in an amount sufficient to allow the Town to perform its obligations hereunder. In the event sufficient funds shall not be appropriated for the payment of sums due hereunder, this Agreement may be terminated by either party without penalty. The Town's obligations hereunder shall not constitute a general obligation indebtedness or multiple-year direct or indirect debt or other financial obligation whatsoever within the meaning of the Constitution or laws of the State of Colorado. 6. ILLEGAL ALIENS. 6.1. Certification. By entering into this Agreement, the Management Company 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 the Management Company will participate in either the E-Verify Program administered by the U.S. 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. 6.2. Prohibited Acts. The Management Company shall not knowingly employ or contract with an illegal alien to perform work under this Agreement, or enter into a contract with a subcontractor that fails to certify to the Management Company that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. 6.3. Verification. 6.3.1. If the Management Company has employees, Management Company has confirmed the employment eligibility of all employees who are newly hired to perform February 18, 2020 - Page 61 of 121 6 work under this Agreement through participation in either the E-Verify Program or the Department Program. 6.3.2. The Management Company 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. 6.3.3. If the Management Company 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, the Management Company shall: notify the subcontractor and the Town within 3 days that the Management Company has actual knowledge that the subcontractor is employing or contracting with an illegal alien who is performing work under this Agreement; and terminate the subcontract with the subcontractor if within 3 days of receiving the notice required pursuant to Section 6.3.1, the subcontractor does not stop employing or contracting with the illegal alien who is performing work under this Agreement; except that the Management Company shall not terminate the subcontract if during such 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. 6.4. Duty to Comply with Investigations. The Management Company shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation conducted pursuant to C.R.S. § 8-17.5-102(5)(a) to ensure that the Management Company is complying with the terms of this Agreement. 6.5. Affidavits. If the Management Company does not have employees, the Management Company shall sign the "No Employee Affidavit" attached hereto. If the Management Company wishes to verify the lawful presence of newly hired employees who perform work under the Agreement via the Department Program, the Management Company shall sign the "Department Program Affidavit" attached hereto. 7. PERSONNEL. 7.1 The Management Company agrees that the principal personnel responsible for the performance of this Agreement will be Laurie Asmussen, but the Management Company may have employees, independent contractors and subcontractors assist in the performance of duties under this Agreement. The Management Company further agrees that no substitute of the principal personnel shall be made without the prior written approval of the Town. None of the services provided for in this Agreement, including the principal personnel, shall be modified without the prior written approval of the Town. 7.2 The Management Company represents that its personnel and subcontractors engaged in this project are fully qualified and properly trained to perform the services related to this Agreement. 8. INDEPENDENT CONTRACTOR. The Management Company is an independent contractor, and nothing contained in this Agreement shall constitute or designate the February 18, 2020 - Page 62 of 121 7 Management Company or any of its employees or subcontractors as agents (except as expressly set forth in this Agreement) or employees of the Town. Further, it is agreed that: 8.1. The Town does not require the Management Company to work exclusively for it; 8.2. The Town, for whom the services are to be performed, does not establish a quality standard for the Management Company; 8.3. The Town will not oversee the actual work or instruct the Management Company as to how the work will be performed; 8.4. The Town can terminate this Agreement if the Management Company violates the terms of this Agreement or fails to produce a result that meets the specifications of this Agreement; 8.5. The Town does not provide training for the Management Company's employees or workers; 8.6. The Town does not provide tools or benefits to complete this Agreement although materials and equipment may be supplied; 8.7. The Town does not dictate the time of performance except that a completion schedule and range of work hours may be established; 8.8. Payment for services rendered pursuant to this Agreement will be made to the trade or business name of the provider of services rather than to the individual; and 8.9. The Town does not in any way combine its business operations with those of the Management Company. THE MANAGEMENT COMPANY AS AN INDEPENDENT CONTRACTOR, IS NOT ENTITLED TO WORKERS' COMPENSATION BENEFITS AND IS OBLIGATED TO PAY FEDERAL AND STATE INCOME TAX ON ANY MONIES EARNED. 9. INSURANCE. The Management Company shall obtain and maintain in force for the term of this Agreement the following insurance: 9.1 A Comprehensive general liability insurance policy, including products liability, with limits of not less than $1,000,000.00 per occurrence and not less than $2,000,000.00 general aggregate for bodily injury or death of any person or persons or damage to property 9.2. Worker's Compensation and employer liability in accordance with the Worker's Compensation Act of the State of Colorado. 9.3. Automobile liability (including owned, non-owned, and hired) in an amount not less than $100,000.00 per individual and not less than $300,000.00 per occurrence. February 18, 2020 - Page 63 of 121 8 9.4 The above coverages shall be obtained from companies acceptable to the Town. Certificates of Insurance evidencing automobile liability coverage shall be furnished to the Town at the time of the signing of this Agreement. The general liability policy shall include the Town as an additional named insured by policy endorsement. Subcontractors of the Management Company shall carry the above insurances to the extent of their contractual limits. The coverages afforded under the policies shall not be canceled, terminated or materially changed without at least 30 days prior written notice 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. 10. INDEMNIFICATION. The Management Company 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 or the Pavilion, unless caused by the negligence of the Town. This indemnification shall survive the expiration or termination of this Agreement. 11. UTILITIES AND SERVICES. The Town agrees that it will furnish at no cost to the Management Company the necessary electricity, heating, lighting, and water for the Pavilion. The Management Company will provide janitorial, trash removal, and all other services necessary to maintain the Pavilion in a clean and orderly condition, and such services will be paid for by the Management Company with funds provided by the Town and set forth in the Operating Budget. 12. SERVICE OF ALCOHOLIC BEVERAGES. The Management Company shall include, with each event contract agreement, a diagram, rules and guidelines of alcohol permitted areas of Donovan Pavilion and patio areas where alcohol service, consumption and storage will be controlled to insure that all rules and regulations of the Colorado Liquor Code and the Town regulations are adhered to during each event held at Donovan Pavilion. 13. PROPRIETARY INFORMATION. 13.1 The Management Company shall retain as its sole and separate property all its proprietary information which has a unique nature and value, including such matters as, but not limited to, the Management Company's business operations, internal structure and financial affairs; the Management Company's systems and procedures; confidential reports and lists of former, present and prospective customers, vendors, suppliers, subcontractors and employees; the Management Company's marketing and business strategy; the pricing structure, information relating to proposed publications and other products; and other proprietary and confidential information, all of which is and shall be deemed to be proprietary and confidential information (the "Proprietary and Confidential Information"). The Management Company shall retain all rights to the Proprietary and Confidential Information. February 18, 2020 - Page 64 of 121 9 13.2 All financial books, records, except those prepared for the Town, instruments and documents; customer lists; data; reports; programs; software; hardware; tapes; rolodexes; telephone and address books; listings; programming; customer files and records; and any and all other instruments, records and documents recorded or stor ed on any medium (collectively, the "Records") shall at all times be and remain the property of the Management Company. Upon the termination of this Agreement, the Town shall return to the Management Company all Records and the Town shall neither make nor retain any copies of any such Records after such cessation. 13.3. Notwithstanding the foregoing, the Parties hereby acknowledge and agree that the information described in this Section 12 may be subject to disclosure and/or retention pursuant to the Colorado Open Records Act, C.R.S. § 24-72-201, et seq., as amended. 14. NO WAIVER. No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other provision of this Agreement, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided, nor shall the waiver of any default of this Agreement be deemed a waiver of any subsequent default. 15. MISCELLANEOUS. 15.1. Amendment. Except as otherwise herein provided, any and all amendments, additions or deletions to this Agreement shall be null and void unless approved by the parties affected thereby in writing. 15.2. Complete Agreement. This Agreement and attached exhibits supersede and take the place of any and all previous Management Agreements entered into between the parties hereto. 15.3. Binding Nature. This Agreement shall be binding upon and inure to the benefit of the Parties, each of their successors and permitted assigns, and shall be binding upon and inure to the benefit of the Management Company, and its permitted assigns. 15.4. Governing Law and Venue. This Agreement shall be construed, interpreted and applied in accordance with and shall be governed by, the laws applicable in the State of Colorado, and venue for any legal action arising out of this Agreement shall be in Eagle County, Colorado. 15.5. Rebates. The Management Company agrees it will not collect or charge any undisclosed fee, rebate or discount, and if any such fee, rebate or discount should be received by the Management Company, these will be credited to the account of the Town. 15.6. Notice. Any written notice required pursuant to this Agreement shall be deemed given on the third business day after mailing if mailed, certified mail, return receipt requested, to the respective parties at the addresses below: Patty McKenny Assistant Town Manager Town of Vail 75 S. Frontage Road Vail, Colorado 81657 Ph: 970-479-2113 February 18, 2020 - Page 65 of 121 10 Donovan Pavilion Management, Inc. 1600 S. Frontage Road Vail, Colorado 81657 Attn: Laurie Asmussen Ph. 970/477-3699 With a copy to: Ann Hutchison Hutchison Law Firm, LLC P.O. Box 394 Gypsum, CO 81637 14.7. Assignment. It is anticipated that some of the services described within this Agreement will be contracted for by the Management Company. The Management Company will advise the Assistant Town Manager of contracts entered into for services to be provided pursuant to this Agreement. 14.8. Compliance with Law. The Management Company will not perform any of the services provided specified in this Agreement contrary to any local, state, federal, or county law. 14.9. Severability. Should any provision of this Agreement be found to be invalid, all other provisions shall remain in full force and effect as though severable from the part invalidated. 14.10 Governmental Immunity. The Town and its officers, attorneys and employees are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations 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, attorneys or employees.IN WITNESS WHEREOF, the Parties have caused this Agreement to be made the day and year first above written. TOWN OF VAIL, COLORADO _________________________________________ Scott Robson, Town Manager ATTEST: ______________________________ Tammy Nagel, Town Clerk February 18, 2020 - Page 66 of 121 11 DONOVAN PAVILION MANAGEMENT, INC., a Colorado corporation By: _______________________________ Laurie Asmussen, President STATE OF COLORADO ) ) ss COUNTY OF EAGLE ) Subscribed to and affirmed before me by Laurie Asmussen, in the County of Eagle, State of Colorado, this ____ day of _____________________, 20___. ________________________________ Notary Public February 18, 2020 - Page 67 of 121 12 Exhibit A Donovan Pavilion Management Company Contract Reservations Plan All reservations for the Donovan Pavilion will be tracked via an internal reservation system. Entries and modifications will be password secured and done only by authorized personnel. Nonprofit groups (i.e. educational, social philanthropic organizations) who are approved by the Vail Town Council or Town Manager's office for complimentary facility usage, will be asked to place a deposit on the space for cleaning purposes. Clients who book the Pavilion for an event will receive a contract outlining the deposit/payment/security deposit requirements. All bookings will be paid in full prior to the event. Anon-refundable deposit will be required at the time the booking is confirmed. If a Client requests to cancel an event and the Management Company is able to re-book the space, the deposit will be returned to the canceled party. The Management Company will keep a current, up-to-date calendar that will be distributed to appropriate Town departments including: • Town Administration • Fire • Parking Dept. Staffing Plan The Pavilion will be staffed with the following positions during event times, including set-up and take down: • Facility staff member • Security personnel • Janitorial personnel will be on-site following the event Additional staffing, subcontracted for the group, may include: • Catering manager and wait staff • A/V personnel • Entertainment assistance All vendors must obtain pre-approval to work any event in the Pavilion. The Management Company will review the application submitted by the vendor who agrees to adhere to all guidelines for doing business in the Town of Vail and agree to adhere to all Town of Vail policies. The Management Company will keep regular office hours and conduct tours of the facility, either with drop-in clients or scheduled tours. February 18, 2020 - Page 68 of 121 13 An emergency/after hours cell number will be stated on the Pavilion voice mail so that the Management Company may be reached 24 hours a day/ 7 days a week. Information requests will be sent to prospective clients in a timely and efficient manner. A database will be created and maintained consisting of all current clients, perspective clients and previous clients. Informative collateral will be sent out, either via e-mail, fax or in written form, on a regular basis to maintain these contacts. Facility Guidelines The rate structure for the Donovan Pavilion encompasses a Peak and Off-Peak season for year around bookings. All clients booking the facility will be issued a Facility Rental contract that outlines: • The facility usage • Event Guidelines for Pavilion use • Facility rental checklist • The deposit and payment schedule • Required security needs • Vendor application for pre-approval to provide service to Pavilion clients • Vendor checklist • Indemnification provisions Discounted & Complimentary Use Plan The Pavilion will be made available to certain individuals and non-profit organizations at a reduced or complimentary rate as more fully described in "Discounted Use Categories for Use on Monday through Thursday", attached hereto and incorporated by this reference herein. The Management Company will screen & review all applications submitted by individuals and/or non-profit organizations seeking a reduced or complimentary rate and will notify Town manager's staff of the application. The Town Manager's staff will have the sole authority to approve such use. The Management Company will invoice the Town annually for costs incurred by The Management Company resulting from the complimentary or reduced rate uses and the Town will reimburse the Management Company for such costs each year. Alcohol Service For events serving alcoholic beverages, the Management Company requires the services of a professional Security Company to be on-site during the entire event. These fees will be paid by the client. All functions where alcoholic beverages are served must have a TIPS-trained bartender to distribute the alcohol. February 18, 2020 - Page 69 of 121 14 As outlined in the fee structure, all groups wishing to serve alcohol will be assessed an Alcohol Usage Fee. Such fee will be determined by the Management Company. Marketing Plan Executive Summary The Management Company team will provide professional operational, event management, sales/ marketing/PR for the Donovan Pavilion. The primary, but not exclusive, focus encompasses: • Selling the Pavilion as a multi-purpose facility for Vail residents, Eagle County residents and visitors to the area • Promoting the Pavilion as a first class facility • Promoting the Pavilion for a wide variety of events such as: weddings, corporate meetings, rehearsal dinners, memorial services, and others • Promoting the Pavilion as an enticement sales tool for sales managers who focus on bringing guests to Vail • Managing the operation of the Pavilion as a first class, yet comfortable, venue • Maintaining open communication between the, Town staff to keep the Pavilion operating as a revenue producing entity for the Town. Mission Statement The primary purpose of the Donovan Pavilion is as a venue available for lease by residents and visitors at which an event may be held. The Donovan Pavilion shall also serve as a community gathering place, attracting residents of Vail and the surrounding area to meet in a social or corporate setting. Goals & Objectives The Management Company has the following goals and objectives: Establish awareness of the Donovan Pavilion as an alternative gathering place for leisure and corporate groups visiting the Vail Valley. Establish attractive rates for the renting of the facility in order to entice usage. Focus on seasonal group rentals to establish base clientele working toward a year -round strategy. Manage the facility in a professional manner including: o keeping accurate records of all event activity in the Pavilion maintaining a clean and safe environment for guests. o have established procedures in place for management and facility users . o timely reporting to Town on facility usage and management. Utilize research to adjust operational plan according to economic climate of the Vail Valley and surrounding areas. February 18, 2020 - Page 70 of 121 15 Segment Strategy The Donovan Pavilion is located in a resort community where corporate and leisure groups are consistently seeking new venues for their functions, the Pavilion offers a unique alternative. The Management Company's strategy for targeting the above corporate and leisure market is to establish and maintain relationships with sales partners in the Vail Valley. These partners include: Wedding planners Hotel sales managers Vail Valley Partnership sales managers February 18, 2020 - Page 71 of 121 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: Vail 2020 Overlay Contract Award B AC K G RO UND: S taff received 3 bids for the Vail 2020 Overlay P roject from 360 P aving, E lam Construction and United Companies. T he project is budgeted with the Capital S treet Maintenance budget and is within the engineer’s estimate. Roads included in this year’s asphalt overlay project include West L ionshead Circle, East L ionshead Circle, West Meadow Drive and B ighorn Road from E xit 180 to P itkin Creek. The project is scheduled to be completed by J une 18, 2020. S TAF F RE C O M M E ND AT IO N: A uthorize the Town Manager to enter into an agreement, in a form approved by the Town A ttorney, with 360 Paving L L C to complete the Vail 2020 Overlay P roject in the amount not to exceed $340,000.00. AT TAC H ME N TS: Description memo February 18, 2020 - Page 72 of 121 To: Town Council From: Public Works Date: 02/18/2020 Subject: Vail 2020 Overlay Contract Award I. ITEM/TOPIC Vail 2020 Overlay Contract Award II. ACTION REQUESTED OF COUNCIL Authorize the Town Manager to enter into an agreement with 360 Paving LLC to complete the Vail 2020 Overlay Project. III. BACKGROUND Staff received 3 bids for the Vail 2020 Overlay Project from 360 Paving, Elam Construction and United Companies. The project is budgeted with the Capital Street Maintenance budget and is within the engineer’s estimate. Roads included in this year’s asphalt overlay project include West Lionshead Circle, East Lionshead Circle, West Meadow Drive and Bighorn Road from Exit 180 to Pitkin Creek. The project is scheduled to be completed by June 18, 2020. IV. STAFF RECOMMENDATION Authorize the Town Manager to enter into an agreement, in a form approved by the Town Attorney, with 360 Paving LLC to complete the Vail 2020 Overlay Project in the amount not to exceed $340,000.00. February 18, 2020 - Page 73 of 121 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: Powabunga Music F estival Contract Award B AC K G RO UND: The Commission of Special E vents granted funding in 2020 to the event producer F ull Send P roductions in the amount of $79,790 for the Powabunga music festival in A pril. I t is Vail Town policy that the Town Council has to authorize the Town Manger to enter into agreements above $50,000. S TAF F RE C O M M E ND AT IO N: Authorize the Town Manager to enter into an a funding agreement in a form approved by the Town A ttorney, with event producer Powabunga in an amount not to exceed $79,790. AT TAC H ME N TS: Description Powabunga 2020 Funding Agreement February 18, 2020 - Page 74 of 121 1 2/12/2020 – Town of Vail 2020 CSE Funding Agreement AGREEMENT FOR FUNDING CONTRIBUTION THIS AGREEMENT FOR FUNDING CONTRIBUTION (the "Agreement") is made and entered into this 24 day of January, 2020 (the "Effective Date"), by and between the Town of Vail, 75 South Frontage Road, Vail, CO 81657, a Colorado home rule municipal corporation (the "Town"), and Full Send Productions, an independent contractor with a principal place of business at 2897 Timber Creek Dr # D21, Vail, CO 81657, ("Recipient") (each a "Party" and collectively the "Parties"). WHEREAS, the Town encourages and supports community events, because such events promote the public health, safety and welfare; WHEREAS, Recipient is producing an event in the Town beginning on or about April 17, 2020; WHEREAS, the Town's Commission on Special Events (the "CSE") has agreed to provide funding to Recipient to assist in the Powabunga event (the "Event"); WHEREAS, the Event has been designated by the Town as a Cultural, Recreational and Community Event; and WHEREAS, in exchange for Town funding, Recipient is willing to comply with the terms and conditions set forth in this Agreement. NOW, THEREFORE, for the consideration hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: I. RECIPIENT'S DUTIES A. Recipient shall plan, organize, promote and carry out the Event as described in Event Description set forth in Exhibit A, attached hereto and incorporated herein by this reference. B. At least 30 days prior to the start of the Event, Recipient shall complete and submit all permits that may be required for the Event by use of the Town special event permits website: www.vailpermits.com. All such applications shall be submitted under the name of Recipient. C. Recipient shall comply with all applicable regulations pertaining to the production of special events in the Town, including without limitation: the special event permit application; ; the Town Logo Standards, Vail Mountain Brand and Logo Guidelines, found at http://bit.ly/2hnGZ8f; and the Town's marketing checklist, attached hereto as Exhibit B and incorporated herein by this reference. D. If required by the Commission on Special Events (“CSE”), Recipient shall allow the Town to perform market research and attendee surveys during or after the Event by an independent, third-party economic impact research firm hired by the Town. Further, Recipient shall share attendee contact information with the research firm, or send a web February 18, 2020 - Page 75 of 121 2 2/12/2020 – Town of Vail 2020 CSE Funding Agreement survey link provided by said firm to its participant/ticket sales database as directed by the Town. The Town shall share survey data and analysis with Recipient for its use and inclusion in the post-event report. E. Recipient shall schedule and complete a post-event report and meeting with the CSE within 60 days following the close of the Event. Recipient shall include in its report any non-confidential data from the Event it deems relevant to the Town's review and assessment of the Event. The Town will provide a PowerPoint template for Recipient's use in preparing the report, and the finished PowerPoint shall be submitted to the Town a minimum of 7 days prior to the date scheduled for the post-event meeting. F. Recipient shall provide Town with one time access to its event customer email database and the Town shall send one email inviting customers to subscribe to the Town’s events newsletter. G. At least 7 days prior to the final payment being issued, recipient shall provide the Town Finance Director with audited financial statements for the organization and actual results from the event including Income Statement, Balance Sheet and other reasonable financial information. Supporting records may be requested by the town. H. The Town shall be entitled to complimentary advertising, photography, and other exposure as part of any of the promotional or informational material Recipient causes to be prepared for the Event. I. Recipient shall ensure that all marketing and lodging inquiries relating to the Event are directed to properties within the Town whenever reasonably possible. J. The Town may download video or photographs of the Event provided by the recipient for promotional or editorial purposes (the "Event Media") at no charge, as follows: 1. As part of Recipient's post-event report, Recipient shall provide the Town with a link for the download location for the Event Media. 2. Recipient hereby transfers, sells, and assigns to the Town all of its right, title, and interest in the Event Media. The Town may, with respect to all or any portion of the Event Media, use, publish, display, reproduce, distribute, destroy, alter, retouch, modify, adapt, translate, or change the Event Media without providing notice to or receiving consent from Recipient. K. If applicable, any additional sponsor benefits required to be provided by Recipient to the Town pursuant to this Agreement shall be set forth in Exhibit C, attached hereto and incorporated herein by this reference. II. TERM AND TERMINATION February 18, 2020 - Page 76 of 121 3 2/12/2020 – Town of Vail 2020 CSE Funding Agreement A. This Agreement shall commence on the Effective Date, and shall continue until Recipient completes the Event and all responsibilities imposed by this Agreement unless sooner terminated as provided herein. B. Either Party may terminate this Agreement upon 30 days advance written notice. If Recipient terminates this Agreement prior to Recipient's completion of the Event, Recipient shall refund all portions of the Total Contribution already paid. If the Town terminates this Agreement due to Recipient's breach of this Agreement, the Town is not obligated to make any additional payments and may seek repayment by Recipient of any portion of the Total Contribution already paid. III. CONTRIBUTION A. If Recipient satisfies the conditions of this Agreement, the Town will pay Recipient $79,790 (the "Total Contribution") in three payments, as set forth below. 1. Payment One: 33% of the Total Contribution ($26,330), payable upon: Recipient executing this Agreement with a completed and signed marketing checklist, and Recipient's completion and submittal of the Sponsor Benefits, and Recipient’s invoice number one. 2. Payment Two: 33% of the Total Contribution ($26,330), payable after submittal of a complete special event permit application and the Town's verification of the marketing checklist and invoice number two. 3. Payment Three: 34% of the Total Contribution ($27,130), payable following the presentation of a post-event report in compliance with this Agreement and following approval by the CSE affirming that all requested information has been provided and that Recipient and the Event have met all conditions for funding and has submitted invoice number three. Payment Three may be reduced or eliminated by the CSE if Recipient's post-event report does not include all required information or if Recipient has failed to meet all conditions of this Agreement. B. Recipient expressly acknowledges that the Total Contribution may be reduced if Recipient fails to produce satisfactory evidence that Recipient has fully complied with all conditions of this Agreement and all other applicable conditions of the permit. Recipient further acknowledges that the Total Contribution may be reduced by the Town as compensation for any outstanding debt Recipient owes the Town including without limitation unpaid contracts for service or unpaid taxes. IV. RESPONSIBILITY A. Recipient hereby warrants that it is qualified to assume the responsibilities to carry out the Event and has all requisite corporate authority and licenses in good standing, required by law. The Event shall comply with all applicable laws, ordinances, rules and regulations. February 18, 2020 - Page 77 of 121 4 2/12/2020 – Town of Vail 2020 CSE Funding Agreement B. The Town's review, approval or acceptance of, or payment for any portion of the Event shall not be construed to operate as a waiver of any rights under this Agreement or as a waiver of any cause of action arising out of the performance of this Agreement. C. Recipient may employ subcontractors to plan, organize, promote or carry out all or portions of the Event, provided that Recipient shall ensure that all such subcontractors comply with the terms and conditions of this Agreement. V. INDEPENDENT CONTRACTOR Recipient is an independent contractor. Notwithstanding any other provision of this Agreement, all personnel assigned by Recipient to perform work on the Event under the terms of this Agreement shall be, and remain at all times, employees or agents of Recipient for all purposes. Recipient shall make no representation that it is a Town employee for any purpose. VI. INSURANCE A. Recipient 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 of or related to the Event. At a minimum, Recipient 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 as required by law. 2. Commercial General Liability insurance with minimum combined single limits of $2,000,000 each occurrence and $2,000,000 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 30 days prior written notice 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 Recipient. Recipient shall be solely responsible for any deductible losses under any policy. February 18, 2020 - Page 78 of 121 5 2/12/2020 – Town of Vail 2020 CSE Funding Agreement C. Recipient shall provide to the Town a certificate of insurance as evidence that the required policies are in full force and effect. The certificate shall identify this Agreement. VII. INDEMNIFICATION Recipient 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 the Event or 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 Recipient, any subcontractor of Recipient, or any officer, employee, representative, or agent of Recipient, or which arise out of a worker's compensation claim of any employee of Recipient or of any employee of any subcontractor of Recipient. VIII. ILLEGAL ALIENS A. Certification. By entering into this Agreement, Recipient 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 Recipient 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. Recipient shall not knowingly employ or contract with an illegal alien to perform work under this Agreement, or enter into a contract with a subcontractor that fails to certify to Recipient that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. C. Verification. 1. If Recipient has employees, Recipient 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. Recipient 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 Recipient 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, Recipient shall: notify the subcontractor and the Town within 3 days that Recipient has actual knowledge that the February 18, 2020 - Page 79 of 121 6 2/12/2020 – Town of Vail 2020 CSE Funding Agreement subcontractor is employing or contracting with an illegal alien who is performing work under this Agreement; and terminate the subcontract with the subcontractor if within 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 Recipient shall not terminate the subcontract if during such 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. Recipient shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation conducted pursuant to C.R.S. § 8-17.5-102(5)(a) to ensure that Recipient is complying with the terms of this Agreement. E. Affidavits. If Recipient does not have employees, Recipient shall sign the "No Employee Affidavit" attached hereto. If Recipient wishes to verify the lawful presence of newly hired employees who perform work under the Agreement via the Department Program, Recipient shall sign the "Department Program Affidavit" attached hereto. IX. FORCE MAJEURE; WEATHER A. If performance or completion of the Event is rendered impossible by an act or regulation of any public authority, an act of God, strike, civil tumult, war, or interruptions of transportation services, or any other proven cause beyond Recipient's control other than inclement weather, it is understood and agreed to by Recipient and the Town that there shall be no claim for damages by either Party and all monies advanced to Recipient will be returned to the Town. B. The Town shall determine in its sole discretion if the Event should be cancelled due to inclement weather. If the Event is cancelled prior to its commencement due to inclement weather and Recipient is present and able to perform, or if the Event begins and is subsequently cancelled by the Town due solely to inclement weather, Recipient shall be deemed to have complied with this Agreement. 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. February 18, 2020 - Page 80 of 121 7 2/12/2020 – Town of Vail 2020 CSE Funding Agreement 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 and its officers, attorneys and employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities or 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, attorneys 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. K. Subject to Annual Appropriation. Consistent with Article X, § 20, of the Colorado Constitution, any financial obligation of the Town not performed during the current fiscal year is subject to annual appropriation, 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 as of the Effective Date. TOWN OF VAIL, COLORADO ________________________________ Scott Robson, Town Manager ATTEST: __________________________________ Tammy Nagel, Town Clerk February 18, 2020 - Page 81 of 121 8 2/12/2020 – Town of Vail 2020 CSE Funding Agreement RECIPIENT By: ________________________________ STATE OF COLORADO ) ) ss. COUNTY OF ) The foregoing instrument was subscribed, sworn to and acknowledged before me this ___ day of ________________, 2020, by ____________________________ as _________________ of ________________________. My commission expires: (S E A L) ________________________________ Notary Public February 18, 2020 - Page 82 of 121 9 2/12/2020 – Town of Vail 2020 CSE Funding Agreement EXHIBIT A EVENT DESCRIPTION “Our mission is to create immersive experiences that exemplify the uniquely vibrant culture that continues to thrive in Colorado. We will rally millennials from the front range and across the country, to be part of an event that celebrates all the magic you feel when breathing in the Rocky Mountains. Our event will be anchored around 3 nights of world class music, a week of large pop up art installations, a modern market in the village and unique on-mountain experiences.” – Powabunga CSE Funding Application Concert Schedule Ford Park Parking Lot // Thursday April 16 - Monday April 20, 2020 International Bridge/Check Point Charlie // Saturday April 18 - Sunday April 19, 2020 Ale House // Friday April 17 - Saturday April 18, 2020 Dobson Arena // Friday April 17 - Saturday April 18, 2020 February 18, 2020 - Page 83 of 121 10 2/12/2020 – Town of Vail 2020 CSE Funding Agreement EXHIBIT B MARKETING CHECKLIST Recipient agrees to the placement of the Town logo on marketing and promotional materials it produces or causes to be produced for the Event as appropriate to the Town's level of sponsorship. Recipient shall complete the checklist and upload here: https://webportalapp.com/sp/home/2020events. Recipient also agrees to the following provisions: • Town approval is required for all Event marketing materials for publication regardless of medium. • Town approval is required for any proofs that include the Town or Vail Mountain logo. • Items requiring Town approval must be submitted to the Town a minimum of 14 days prior to publication. • The Town may reduce its Total Contribution for marketing items that Recipient fails to submit properly and in a timely manner. • Recipient shall use the Town logo and shall make Town social media mentions and hashtags wherever reasonably possible. In doing so, Recipient shall comply with the Town's exact usage guidelines. February 18, 2020 - Page 84 of 121 11 2/12/2020 – Town of Vail 2020 CSE Funding Agreement EXHIBIT C SPONSOR BENEFITS FORM The following additional benefits are due to the Town of Vail in consideration of the event funding: 38 VIP weekend passes good for access to all events. Top tier logo placement on all print and digital media and prominent placement on the website. Logo inclusion in all email communications sent to the event database. Tagging of Town of Vail social media accounts in a minimum of 10 event posts. Option for 10x10 activation space at events that have a vendor presence. One-time access to your email list to send an invitation to sign up for Town of Vail emails. Logo inclusion on stage signage commensurate with sponsorship level. A minimum of 4 PA mentions per event. February 18, 2020 - Page 85 of 121 12 2/12/2020 – Town of Vail 2020 CSE Funding Agreement NO EMPLOYEE AFFIDAVIT [To be completed only if Recipient has no employees] 1. Check and complete one: I, _______________________________, am a sole proprietor doing business as __________________________. I do not currently employ any individuals. Should I employ any employees during the term of my Agreement with the Town of Vail (the "Town"), I certify that I will comply with the lawful presence verification requirements outlined in that Agreement. OR I, ______________________________, am the sole owner/member/shareholder of ___________________________, a ______________________________ [specify type of entity – i.e., corporation, limited liability company], that does not currently employ any individuals. Should I employ any individuals during the term of my Agreement with the Town, I certify that I will comply with the lawful presence verification requirements outlined in that Agreement. 2. Check one. I am a United States citizen or legal permanent resident. The Town must verify this statement by reviewing one of the following items:  A valid Colorado driver's license or a Colorado identification card;  A United States military card or a military dependent's identification card;  A United States Coast Guard Merchant Mariner card;  A Native American tribal document;  In the case of a resident of another state, the driver’s license or state-issued identification card from the state of residence, if that state requires the applicant to prove lawful presence prior to the issuance of the identification card; or  Any other documents or combination of documents listed in the Town’s “Acceptable Documents for Lawful Presence Verification” chart that prove both Recipient’s citizenship/lawful presence and identity. OR I am otherwise lawfully present in the United States pursuant to federal law. Recipient must verify this statement through the federal Systematic Alien Verification of Entitlement ("SAVE”) program, and provide such verification to the Town. ____________________________________ __________________________ Signature Date February 18, 2020 - Page 86 of 121 13 2/12/2020 – Town of Vail 2020 CSE Funding Agreement DEPARTMENT PROGRAM AFFIDAVIT [To be completed only if Recipient 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 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 COLORADO ) ) 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 February 18, 2020 - Page 87 of 121 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: Burton US Open Funding Agreement Award B AC K G RO UND: The Town Council granted funding in 2020 to Burton in the amount of $490,000 for the B urton US Open Event in February. I t is Vail Town policy that the Town Council has to authorize the Town Manger to enter into agreements above $50,000 S TAF F RE C O M M E ND AT IO N: Authorize the Town Manager to enter into an a funding agreement in a form approved by the Town A ttorney, with event producer Burton in an amount not to exceed $490,000. AT TAC H ME N TS: Description Burton 2020 Funding Agreement February 18, 2020 - Page 88 of 121 1 2/10/2020 Town of Vail 2020 Event Funding Agreement AGREEMENT FOR FUNDING CONTRIBUTION THIS AGREEMENT FOR FUNDING CONTRIBUTION (the "Agreement") is made and entered into this 26th day of January, 2020 (the "Effective Date"), by and between the Town of Vail, 75 South Frontage Road, Vail, CO 81657, a Colorado home rule municipal corporation (the "Town"), and The Burton Corporation, an independent contractor with a principal place of business at 180 Queen City Park Road, Burlington, VT 05401 ("Recipient") (each a "Party" and collectively the "Parties"). WHEREAS, the Town encourages and supports community events, because such events promote the public health, safety and welfare; WHEREAS, Recipient is producing an event in the Town beginning on or about 2/24/2020; WHEREAS, the Town Council has agreed to provide funding to Recipient to assist in the Burton US Open event (the "Event"); WHEREAS, the Event has been designated by the Town as a Signature Event; and WHEREAS, in exchange for Town funding, Recipient is willing to comply with the terms and conditions set forth in this Agreement. NOW, THEREFORE, for the consideration hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: I. RECIPIENT'S DUTIES A. Recipient shall plan, organize, promote and carry out the Event as described in Event Description set forth in Exhibit A, attached hereto and incorporated herein by this reference. B. At least 30 days prior to the start of the Event, Recipient shall complete and submit all permits that may be required for the Event by use of the Town special event permits website: www.vailpermits.com. All such applications shall be submitted under the name of Recipient. C. Recipient shall comply with all applicable regulations pertaining to the production of special events in the Town, including without limitation: the special event permit application; the Town Logo Standards, Vail Mountain Brand and Logo Guidelines, found at http://bit.ly/2hnGZ8f; and the Town's marketing checklist, attached hereto as Exhibit B and incorporated herein by this reference. D. If required by the Commission on Special Events (“CSE”), Recipient shall allow the Town to perform market research and attendee surveys during or after the Event by an independent, third-party economic impact research firm hired by the Town. Further, Recipient shall share attendee contact information with the research firm, or send a web February 18, 2020 - Page 89 of 121 2 2/10/2020 Town of Vail 2020 Event Funding Agreement survey link provided by said firm to its participant/ticket sales database as directed by the Town. The Town shall share survey data and analysis with Recipient for its use and inclusion in the post-event report. E. Recipient shall schedule and complete a post-event report and meeting with the CSE within 60 days following the close of the Event. Recipient shall include in its report any non-confidential data from the Event it deems relevant to the Town's review and assessment of the Event. The Town will provide a PowerPoint template for Recipient's use in preparing the report, and the finished PowerPoint shall be submitted to the Town a minimum of 7 days prior to the date scheduled for the post-event meeting. F. Following the Event, Recipient agrees to e-mail Event attendees and in such e-mail, provide link to Town’s event website. G. Upon request, Burton agrees to provide Town with evidence of financial solvency. H. The Town shall be entitled to complimentary advertising, photography, and other exposure as part of any of the promotional or informational material Recipient causes to be prepared for the Event. Notwithstanding the foregoing, such complimentary rights shall exist only to the extent that (i) Recipient has full and complete ownership of such advertising, photography or other exposure, or (ii) other license rights which enable it to provide the same to the Town. I. Recipient shall ensure that all marketing and lodging inquiries relating to the Event are directed to properties within the Town whenever reasonably possible. J. The Town may download video or photographs of the Event provided by Recipient for promotional or editorial purposes (the "Event Media") at no charge, as follows: 1. As part of Recipient's post-event report, Recipient shall provide the Town with a link for the download location for the Event Media. 2. Recipient hereby licenses to the Town on a non-exclusive basis all of its right, title, and interest in the Event Media. The Town may, with respect to all or any portion of the Event Media, use, publish, display, reproduce, destroy, alter, retouch, modify, adapt, translate, or change the Event Media for the sole purpose of promoting the Town or the Event without providing notice to or receiving consent from Recipient. K. If applicable, any additional sponsor benefits required to be provided by Recipient to the Town pursuant to this Agreement shall be set forth in Exhibit C, attached hereto and incorporated herein by this reference. February 18, 2020 - Page 90 of 121 3 2/10/2020 Town of Vail 2020 Event Funding Agreement II. TERM AND TERMINATION A. This Agreement shall commence on the Effective Date, and shall continue until Recipient completes the Event and all responsibilities imposed by this Agreement unless sooner terminated as provided herein. B. Either Party may terminate this Agreement upon (i) material breach of this Agreement and seven (7) days’ right to cure said breach; or (ii) 30 days’ advance written notice. If Recipient terminates this Agreement prior to Recipient's completion of the Event and not as a result of the Town’s material breach, Recipient shall refund all portions of the Total Contribution already paid. If the Town terminates this Agreement due to Recipient's breach of this Agreement, the Town is not obligated to make any additional payments and may seek repayment by Recipient of any portion of the Total Contribution already paid. III. CONTRIBUTION A. If Recipient satisfies the conditions of this Agreement, the Town will pay Recipient $490,000 (the "Total Contribution") in two payments, as set forth below. 1. Payment One: 66% of the Total Contribution ($323,400), payable upon: Recipient executing this Agreement with a completed and signed marketing checklist, and Recipient’s invoice number one. 3. Payment Two: 34% of the Total Contribution ($166,600), payable following the presentation of a post-event report in compliance with this Agreement and following approval by the CSE affirming that all requested information has been provided and that Recipient and the Event have met all conditions for funding and has submitted invoice number two. Payment Two may be reduced or eliminated by the CSE on a pro rata basis if Recipient's post-event report does not include all required information or if Recipient has failed to meet all material conditions of this Agreement. B. Recipient expressly acknowledges that the Total Contribution may be reduced if Recipient fails to produce satisfactory evidence that Recipient has fully complied with all material conditions of this Agreement and all other applicable conditions of the permit. Recipient further acknowledges that the Total Contribution may be reduced by the Town as compensation for any outstanding debt Recipient owes the Town including without limitation unpaid contracts for service or unpaid taxes. IV. RESPONSIBILITY A. Recipient hereby warrants that it is qualified to assume the responsibilities to carry out the Event and has all requisite corporate authority and licenses in good standing, required by law. The Event shall comply with all applicable laws, ordinances, rules and regulations. February 18, 2020 - Page 91 of 121 4 2/10/2020 Town of Vail 2020 Event Funding Agreement B. The Town's review, approval or acceptance of, or payment for any portion of the Event shall not be construed to operate as a waiver of any rights under this Agreement or as a waiver of any cause of action arising out of the performance of this Agreement. C. Recipient may employ subcontractors to plan, organize, promote or carry out all or portions of the Event, provided that Recipient shall ensure that all such subcontractors comply with the terms and conditions of this Agreement. V. INDEPENDENT CONTRACTOR Recipient is an independent contractor. Notwithstanding any other provision of this Agreement, all personnel assigned by Recipient to perform work on the Event under the terms of this Agreement shall be, and remain at all times, employees or agents of Recipient for all purposes. Recipient shall make no representation that it is a Town employee for any purpose. VI. INSURANCE A. Recipient 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 of or related to the Event. At a minimum, Recipient 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 as required by law. 2. Commercial General Liability insurance with minimum combined single limits of $2,000,000 each occurrence and $2,000,000 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 30 days prior written notice 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 Recipient. Recipient shall be solely responsible for any deductible losses under any policy. February 18, 2020 - Page 92 of 121 5 2/10/2020 Town of Vail 2020 Event Funding Agreement C. Recipient shall provide to the Town a certificate of insurance as evidence that the required policies are in full force and effect. The certificate shall identify this Agreement. VII. INDEMNIFICATION Recipient 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 the Event or 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 Recipient, any subcontractor of Recipient, or any officer, employee, representative, or agent of Recipient, or which arise out of a worker's compensation claim of any employee of Recipient or of any employee of any subcontractor of Recipient. VIII. ILLEGAL ALIENS A. Certification. By entering into this Agreement, Recipient 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 Recipient 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. Recipient shall not knowingly employ or contract with an illegal alien to perform work under this Agreement, or enter into a contract with a subcontractor that fails to certify to Recipient that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. C. Verification. 1. If Recipient has employees, Recipient 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. For employees who perform work under this Agreement, Recipient 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 Recipient 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, Recipient shall: notify the subcontractor and the Town within 3 days that Recipient has actual knowledge that the February 18, 2020 - Page 93 of 121 6 2/10/2020 Town of Vail 2020 Event Funding Agreement subcontractor is employing or contracting with an illegal alien who is performing work under this Agreement; and terminate the subcontract with the subcontractor if within 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 Recipient shall not terminate the subcontract if during such 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. Recipient shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation conducted pursuant to C.R.S. § 8-17.5-102(5)(a) to ensure that Recipient is complying with the terms of this Agreement. E. Affidavits. If Recipient does not have employees who perform work under this Agreement, Recipient shall sign the "No Employee Affidavit" attached hereto. If Recipient wishes to verify the lawful presence of newly hired employees who perform work under the Agreement via the Department Program, Recipient shall sign the "Department Program Affidavit" attached hereto. IX. FORCE MAJEURE; WEATHER A. If performance or completion of the entire Event is rendered impossible by an act or regulation of any public authority, an act of God, strike, civil tumult, war, or interruptions of transportation services, or any other proven cause beyond Recipient's control other than inclement weather, it is understood and agreed to by Recipient and the Town that there shall be no claim for damages by either Party and all monies advanced to Recipient will be returned to the Town. 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. February 18, 2020 - Page 94 of 121 7 2/10/2020 Town of Vail 2020 Event Funding 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 and its officers, attorneys and employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities or 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, attorneys 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. K. Subject to Annual Appropriation. Consistent with Article X, § 20, of the Colorado Constitution, any financial obligation of the Town not performed during the current fiscal year is subject to annual appropriation, 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 as of the Effective Date. TOWN OF VAIL, COLORADO ________________________________ Scott Robson, Town Manager ATTEST: __________________________________ Tammy Nagel, Town Clerk RECIPIENT The Burton Corporation By: ________________________________ February 18, 2020 - Page 95 of 121 8 2/10/2020 Town of Vail 2020 Event Funding Agreement STATE OF COLORADO ) ) ss. COUNTY OF ) The foregoing instrument was subscribed, sworn to and acknowledged before me this ___ day of ________________, 2020, by ____________________________ as _________________ of ________________________. My commission expires: (S E A L) ________________________________ Notary Public February 18, 2020 - Page 96 of 121 9 2/10/2020 Town of Vail 2020 Event Funding Agreement EXHIBIT A EVENT DESCRIPTION The 2020 Burton U.S. Open Snowboarding Championships returns to Vail Mountain bringing with it the best snowboarders in the world competing to win the most prestigious Halfpipe and Slopestyle titles in snowboarding. There are three event categories in the Burton U.S. Open Snowboarding Championships, namelyslopestyle, halfpipe and entertainment, with men and women categories for each. The five-day event also features free music festivals, a Dobson Ice party, and activities for kids like the Burton Girls Ride Days and the learn-to-ride Riglet park. Visit Vail in February 2020 to experience the world-class U.S. Open Snowboarding event. February 18, 2020 - Page 97 of 121 10 2/10/2020 Town of Vail 2020 Event Funding Agreement EXHIBIT B MARKETING CHECKLIST Recipient agrees to the placement of the Town logo on marketing and promotional materials it produces or causes to be produced for the Event as appropriate to the Town's level of sponsorship. Recipient shall complete the checklist and upload here: https://webportalapp.com/sp/home/2020events. Recipient also agrees to the following provisions: • Town approval is required for all Event marketing materials for publication regardless of medium. • Town approval is required for any proofs that include the Town or Vail Mountain logo. • Items requiring Town approval must be submitted to the Town a minimum of 14 days prior to publication. • The Town may reduce its Total Contribution for marketing items that Recipient fails to submit properly and in a timely manner. • Recipient shall use the Town logo and shall make Town social media mentions and hashtags wherever reasonably possible. In doing so, Recipient shall comply with the Town's exact usage guidelines. February 18, 2020 - Page 98 of 121 11 2/10/2020 Town of Vail 2020 Event Funding Agreement EXHIBIT C SPONSOR BENEFITS FORM The following additional benefits are due to the Town of Vail in consideration of the event funding: 1 The right to Town of Vail name and/or logo I.D. on USO 4-color print ads in national publications 2 The right to Town of Vail name and/or logo I.D. on three-thousand four hundred (3,400) USO posters 3 The right to Town of Vail name on the USO media releases; 4 The right to Town of Vail name and/or logo I.D., with link, on the landing page and sponsor page of the USO website to launch in January 2020; 5 The right to Town of Vail name and/or logo I.D. on twenty (20) Rider/Competitor bibs; 6 The right to Town of Vail signage displayed in the USO competition venue and sponsor village. Burton to produce no less than ten (10) 3'x8' coroplast signs and the necessary 3'x8' vinyl banners; 7 The right to Town of Vail name and/or logo I.D. on the 8'x8' USO awards backdrop; 8 The right to a minimum of fifteen (15) Town of Vail PA mentions at the USO at Golden Peak and Solaris; 9 The right to two (2) thirty second (:30) spots to be aired during the live 60 minute or 120 minute USO programs to be aired during the 90 minute Reb Bull Signature Series show on FS1; 10 The right to integrate TOV onsite signage visually into the webcast and television programming globally; 11 The right to Thirty Six (36) pairs of USO VIP Credentials (72 total credentials); 12 The right to ten (10) thirty second (:30) spots to be aired on the Big Screens during the USO; 13 The right to place a printed collateral piece in one thousand one hundred (1,100) USO gift bags; 14 The right to receive Thirty Six USO gift bags; 15 The right to the inclusion of :10 second of Town of Vail footage in one or more USO television programs, Burton to produce; 16 The right to quality talent for the Solaris USO concerts; 17 The right to visibility via Burton's global television distribution; 18 The right to an paid USO marketing/social media push and presence into key domestic and international Town of Vail markets; 19 The right to a continued Town of Vail merchant outreach and support program surrounding the USO (Apres All Day Program) - Fitz, Pazzos, Garfs; 20 The right to the expansion of the Riglet program to Golden Peak; February 18, 2020 - Page 99 of 121 12 2/10/2020 Town of Vail 2020 Event Funding Agreement 21 The right to TOV to be included in the NEW USO App; 22 The right to a USO Town of Vail school outreach program, as determined by Burton, which will be exclusive to Vail schools including Red Sandstone and VMS and Children's Garden of Learning. 23 The right to expanded grass roots/local community marketing 24 Focus on marketing to the early season visitor with the goal of having them return to Vail for the USO 25 The right to target the spanish speaking market with specific USO messaging. 26 The right to 350 pieces of swag (beanies) for Town Staff to be delivered prior to the event. February 18, 2020 - Page 100 of 121 13 2/10/2020 Town of Vail 2020 Event Funding Agreement NO EMPLOYEE AFFIDAVIT [To be completed only if Recipient has no employees] 1. Check and complete one: I, _______________________________, am a sole proprietor doing business as __________________________. I do not currently employ any individuals. Should I employ any employees during the term of my Agreement with the Town of Vail (the "Town"), I certify that I will comply with the lawful presence verification requirements outlined in that Agreement. OR I, ______________________________, am the sole owner/member/shareholder of ___________________________, a ______________________________ [specify type of entity – i.e., corporation, limited liability company], that does not currently employ any individuals. Should I employ any individuals during the term of my Agreement with the Town, I certify that I will comply with the lawful presence verification requirements outlined in that Agreement. 2. Check one. I am a United States citizen or legal permanent resident. The Town must verify this statement by reviewing one of the following items:  A valid Colorado driver's license or a Colorado identification card;  A United States military card or a military dependent's identification card;  A United States Coast Guard Merchant Mariner card;  A Native American tribal document;  In the case of a resident of another state, the driver’s license or state-issued identification card from the state of residence, if that state requires the applicant to prove lawful presence prior to the issuance of the identification card; or  Any other documents or combination of documents listed in the Town’s “Acceptable Documents for Lawful Presence Verification” chart that prove both Recipient’s citizenship/lawful presence and identity. OR I am otherwise lawfully present in the United States pursuant to federal law. Recipient must verify this statement through the federal Systematic Alien Verification of Entitlement ("SAVE”) program, and provide such verification to the Town. ____________________________________ __________________________ Signature Date February 18, 2020 - Page 101 of 121 14 2/10/2020 Town of Vail 2020 Event Funding Agreement DEPARTMENT PROGRAM AFFIDAVIT [To be completed only if Recipient 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 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 COLORADO ) ) 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 February 18, 2020 - Page 102 of 121 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: Taste of Vail Funding Agreement Award B AC K G RO UND: The Commission on Special E vents granted funding in 2020 to Taste of Vail in the amount of $55,000 for the Taste of Vail E vent in A pril. I t is Vail Town policy that the Town Council has to authorize the Town Manger to enter into agreements above $50,000 S TAF F RE C O M M E ND AT IO N: Authorize the Town Manager to enter into an a funding agreement on a form approved by the Town Attorney, with event producer Taste of Vail in an amount not to exceed $55,000. AT TAC H ME N TS: Description Taste of Vail Funding Agreement February 18, 2020 - Page 103 of 121 1 2/13/2020 HTTPS://VAILCOGOV.SHAREPOINT.COM/SITES/ECONDEV/SHARED DOCUMENTS/CSE/2020 EVENTS/TASTE OF VAIL/TASTE OF VAIL 2020 FUNDING AGREEMENT.DOCX AGREEMENT FOR FUNDING CONTRIBUTION THIS AGREEMENT FOR FUNDING CONTRIBUTION (the "Agreement") is made and entered into this 11th day of February, 2020 (the "Effective Date"), by and between the Town of Vail, 75 South Frontage Road, Vail, CO 81657, a Colorado home rule municipal corporation (the "Town"), and Taste of Vail, an independent contractor with a principal place of business at PO Box 5663, Vail, CO 81657, ("Recipient") (each a "Party" and collectively the "Parties"). WHEREAS, the Town encourages and supports community events, because such events promote the public health, safety and welfare; WHEREAS, Recipient is producing an event in the Town on or about April 1, 2020,; WHEREAS, the Town's Commission on Special Events (the "CSE") has agreed to provide funding to Recipient to assist in the Taste of Vail event (the "Event"); WHEREAS, the Event has been designated by the Town as a Cultural, Recreational and Community Event; and WHEREAS, in exchange for Town funding, Recipient is willing to comply with the terms and conditions set forth in this Agreement. NOW, THEREFORE, for the consideration hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: I. RECIPIENT'S DUTIES A. Recipient shall plan, organize, promote and carry out the Event as described in Event Description set forth in Exhibit A, attached hereto and incorporated herein by this reference. B. At least 30 days prior to the start of the Event, Recipient shall complete and submit all permits that may be required for the Event by use of the Town special event permits website: www.vailpermits.com. All such applications shall be submitted under the name of Recipient. C. Recipient shall comply with all applicable regulations pertaining to the production of special events in the Town, including without limitation: the special event permit application; ; the Town Logo Standards, Vail Mountain Brand and Logo Guidelines, found at http://bit.ly/2hnGZ8f; and the Town's marketing checklist, attached hereto as Exhibit B and incorporated herein by this reference. D. If required by the CSE Recipient shall allow the Town to perform market research and attendee surveys during or after the Event by an independent, third-party economic impact research firm hired by the Town. Further, Recipient shall share attendee contact information with the research firm, or send a web survey link provided by said firm to its participant/ticket sales database as directed by the Town. The Town February 18, 2020 - Page 104 of 121 2 2/13/2020 HTTPS://VAILCOGOV.SHAREPOINT.COM/SITES/ECONDEV/SHARED DOCUMENTS/CSE/2020 EVENTS/TASTE OF VAIL/TASTE OF VAIL 2020 FUNDING AGREEMENT.DOCX shall share survey data and analysis with Recipient for its use and inclusion in the post- event report. E. Recipient shall schedule and complete a post-event report and meeting with the CSE within 60 days following the close of the Event. Recipient shall include in its report any non-confidential data from the Event it deems relevant to the Town's review and assessment of the Event. The Town will provide a PowerPoint template for Recipient's use in preparing the report, and the finished PowerPoint shall be submitted to the Town a minimum of 7 days prior to the date scheduled for the post-event meeting. F. Recipient shall provide Town with one time access to its event customer email database and the Town shall send one email inviting customers to subscribe to the Town’s events newsletter. G. At least 7 days prior to the final payment being issued, recipient shall provide the Town Finance Director with audited financial statements for the organization and actual results from the event including Income Statement, Balance Sheet and other reasonable financial information. Supporting records may be requested by the town. H. The Town shall be entitled to complimentary advertising, photography, and other exposure as part of any of the promotional or informational material Recipient causes to be prepared for the Event. I. Recipient shall ensure that all lodging marketing and lodging inquiries relating to the Event are directed to properties within the Town whenever reasonably possible. J. The Town may download video or photographs of the Event for promotional or editorial purposes (the "Event Media") at no charge, as follows: 1. As part of Recipient's post-event report, Recipient shall provide the Town with a link for the download location for the Event Media. 2. Recipient hereby transfers, sells, and assigns to the Town all of its right, title, and interest in the Event Media. The Town may, with respect to all or any portion of the Event Media, use, publish, display, reproduce, distribute, destroy, alter, retouch, modify, adapt, translate, or change the Event Media without providing notice to or receiving consent from Recipient. K. If applicable, any additional sponsor benefits required to be provided by Recipient to the Town pursuant to this Agreement shall be set forth in Exhibit C, attached hereto and incorporated herein by this reference. II. TERM AND TERMINATION A. This Agreement shall commence on the Effective Date, and shall continue until Recipient completes the Event and all responsibilities imposed by this Agreement unless sooner terminated as provided herein. February 18, 2020 - Page 105 of 121 3 2/13/2020 HTTPS://VAILCOGOV.SHAREPOINT.COM/SITES/ECONDEV/SHARED DOCUMENTS/CSE/2020 EVENTS/TASTE OF VAIL/TASTE OF VAIL 2020 FUNDING AGREEMENT.DOCX B. Either Party may terminate this Agreement upon 30 days advance written notice. If Recipient terminates this Agreement prior to Recipient's completion of the Event, Recipient shall refund all portions of the Total Contribution already paid. If the Town terminates this Agreement due to Recipient's breach of this Agreement, the Town is not obligated to make any additional payments and may seek repayment by Recipient of any portion of the Total Contribution already paid. III. CONTRIBUTION A. If Recipient satisfies the conditions of this Agreement, the Town will pay Recipient $55,000 (the "Total Contribution") in three payments, as set forth below. 1. Payment One: 33% of the Total Contribution ($18,333), payable upon: Recipient executing this Agreement with a completed and signed marketing checklist, and Recipient's completion and submittal of the Sponsor Benefits, and Recipient’s invoice number one. 2. Payment Two: 33% of the Total Contribution ($18,333), payable after submittal of a complete special event permit application and the Town's verification of the marketing checklist and invoice number two. 3. Payment Three: 34% of the Total Contribution ($18,334), following the presentation of a post-event report in compliance with this Agreement and following approval by the CSE affirming that all requested information has been provided and that Recipient and the Event have met all conditions for funding and has submitted invoice number three. Payment Three may be reduced or eliminated by the CSE if Recipient's post-event report does not include all required information or if Recipient has failed to meet all conditions of this Agreement. B. Recipient expressly acknowledges that the Total Contribution may be reduced if Recipient fails to produce satisfactory evidence that Recipient has fully complied with all conditions of this Agreement and all other applicable conditions of the permit. Recipient further acknowledges that the Total Contribution may be reduced by the Town as compensation for any outstanding debt Recipient owes the Town including without limitation unpaid contracts for service or unpaid taxes. IV. RESPONSIBILITY A. Recipient hereby warrants that it is qualified to assume the responsibilities to carry out the Event and has all requisite corporate authority and licenses in good standing, required by law. The Event shall comply with all applicable laws, ordinances, rules and regulations. B. The Town's review, approval or acceptance of, or payment for any portion of the Event shall not be construed to operate as a waiver of any rights under this Agreement or as a waiver of any cause of action arising out of the performance of this Agreement. February 18, 2020 - Page 106 of 121 4 2/13/2020 HTTPS://VAILCOGOV.SHAREPOINT.COM/SITES/ECONDEV/SHARED DOCUMENTS/CSE/2020 EVENTS/TASTE OF VAIL/TASTE OF VAIL 2020 FUNDING AGREEMENT.DOCX C. Recipient may employ subcontractors to plan, organize, promote or carry out all or portions of the Event, provided that Recipient shall ensure that all such subcontractors comply with the terms and conditions of this Agreement. V. INDEPENDENT CONTRACTOR Recipient is an independent contractor. Notwithstanding any other provision of this Agreement, all personnel assigned by Recipient to perform work on the Event under the terms of this Agreement shall be, and remain at all times, employees or agents of Recipient for all purposes. Recipient shall make no representation that it is a Town employee for any purpose. VI. INSURANCE A. Recipient 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 of or related to the Event. At a minimum, Recipient 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 as required by law. 2. Commercial General Liability insurance with minimum combined single limits of $2,000,000 each occurrence and $2,000,000 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 30 days prior written notice 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 Recipient. Recipient shall be solely responsible for any deductible losses under any policy. C. Recipient shall provide to the Town a certificate of insurance as evidence that the required policies are in full force and effect. The certificate shall identify this Agreement. February 18, 2020 - Page 107 of 121 5 2/13/2020 HTTPS://VAILCOGOV.SHAREPOINT.COM/SITES/ECONDEV/SHARED DOCUMENTS/CSE/2020 EVENTS/TASTE OF VAIL/TASTE OF VAIL 2020 FUNDING AGREEMENT.DOCX VII. INDEMNIFICATION Recipient 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 the Event or 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 Recipient, any subcontractor of Recipient, or any officer, employee, representative, or agent of Recipient, or which arise out of a worker's compensation claim of any employee of Recipient or of any employee of any subcontractor of Recipient. VIII. ILLEGAL ALIENS A. Certification. By entering into this Agreement, Recipient 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 Recipient 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. Recipient shall not knowingly employ or contract with an illegal alien to perform work under this Agreement, or enter into a contract with a subcontractor that fails to certify to Recipient that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. C. Verification. 1. If Recipient has employees, Recipient 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. Recipient 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 Recipient 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, Recipient shall: notify the subcontractor and the Town within 3 days that Recipient has actual knowledge that the subcontractor is employing or contracting with an illegal alien who is performing work under this Agreement; and terminate the subcontract with the subcontractor if within 3 days of receiving the notice required pursuant to subsection 1 hereof, February 18, 2020 - Page 108 of 121 6 2/13/2020 HTTPS://VAILCOGOV.SHAREPOINT.COM/SITES/ECONDEV/SHARED DOCUMENTS/CSE/2020 EVENTS/TASTE OF VAIL/TASTE OF VAIL 2020 FUNDING AGREEMENT.DOCX the subcontractor does not stop employing or contracting with the illegal alien who is performing work under this Agreement; except that Recipient shall not terminate the subcontract if during such 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. Recipient shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation conducted pursuant to C.R.S. § 8-17.5-102(5)(a) to ensure that Recipient is complying with the terms of this Agreement. E. Affidavits. If Recipient does not have employees, Recipient shall sign the "No Employee Affidavit" attached hereto. If Recipient wishes to verify the lawful presence of newly hired employees who perform work under the Agreement via the Department Program, Recipient shall sign the "Department Program Affidavit" attached hereto. IX. FORCE MAJEURE; WEATHER A. If performance or completion of the Event is rendered impossible by an act or regulation of any public authority, an act of God, strike, civil tumult, war, or interruptions of transportation services, or any other proven cause beyond Recipient's control other than inclement weather, it is understood and agreed to by Recipient and the Town that there shall be no claim for damages by either Party and all monies advanced to Recipient will be returned to the Town. B. The Town shall determine in its sole discretion if the Event should be cancelled due to inclement weather. If the Event is cancelled prior to its commencement due to inclement weather and Recipient is present and able to perform, or if the Event begins and is subsequently cancelled by the Town due solely to inclement weather, Recipient shall be deemed to have complied with this Agreement. 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. February 18, 2020 - Page 109 of 121 7 2/13/2020 HTTPS://VAILCOGOV.SHAREPOINT.COM/SITES/ECONDEV/SHARED DOCUMENTS/CSE/2020 EVENTS/TASTE OF VAIL/TASTE OF VAIL 2020 FUNDING AGREEMENT.DOCX 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 and its officers, attorneys and employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities or 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, attorneys 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. K. Subject to Annual Appropriation. Consistent with Article X, § 20, of the Colorado Constitution, any financial obligation of the Town not performed during the current fiscal year is subject to annual appropriation, 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 as of the Effective Date. TOWN OF VAIL, COLORADO ________________________________ Scott Robson, Town Manager ATTEST: __________________________________ Tammy Nagel, Town Clerk February 18, 2020 - Page 110 of 121 8 2/13/2020 HTTPS://VAILCOGOV.SHAREPOINT.COM/SITES/ECONDEV/SHARED DOCUMENTS/CSE/2020 EVENTS/TASTE OF VAIL/TASTE OF VAIL 2020 FUNDING AGREEMENT.DOCX RECIPIENT By: ________________________________ STATE OF COLORADO ) ) ss. COUNTY OF ) The foregoing instrument was subscribed, sworn to and acknowledged before me this ___ day of ________________, 2020, by ____________________________ as _________________ of ________________________. My commission expires: (S E A L) ________________________________ Notary Public February 18, 2020 - Page 111 of 121 9 2/13/2020 HTTPS://VAILCOGOV.SHAREPOINT.COM/SITES/ECONDEV/SHARED DOCUMENTS/CSE/2020 EVENTS/TASTE OF VAIL/TASTE OF VAIL 2020 FUNDING AGREEMENT.DOCX EXHIBIT A EVENT DESCRIPTION The Taste of Vail's Goal is to enhance Vail's image, position, and reputation as a world class resort with a serious commitment to fine food and to promote recognitions of the Vail culinary lifestyle. We aim to bring guests to town to stay in Vail lodging, frequent Vail businesses, and enjoy meals created by Vail chefs. For the past 30 years, The Taste of Vail has been a premier food and wine tasting festival introducing and educating visitors and locals to the delights of fine food and wine. The festival is comprised of a variety of events in locations throughout Vail. The 2020 Taste of Vail will kick-off with the popular Debut of Rosé featuring the latest rosé releases from various wineries. The next day will feature the Lamb Après Tasting sponsored by the American Lamb Board. Day three features the unique Mountain Top Tasting and the festival will culminate with the Grand Tasting highlighting Vail's best of the best restaurants. Interspersed throughout the week's events will be private parties, wine and food seminars, gallery walks, and a Vail Parade of Homes. There will be also be brunches throughout Vail on Sunday August 6th. February 18, 2020 - Page 112 of 121 10 2/13/2020 HTTPS://VAILCOGOV.SHAREPOINT.COM/SITES/ECONDEV/SHARED DOCUMENTS/CSE/2020 EVENTS/TASTE OF VAIL/TASTE OF VAIL 2020 FUNDING AGREEMENT.DOCX EXHIBIT B MARKETING CHECKLIST Recipient agrees to the placement of the Town logo on marketing and promotional materials it produces or causes to be produced for the Event as appropriate to the Town's level of sponsorship. Recipient shall complete the checklist and upload here: https://webportalapp.com/sp/home/2020events. Recipient also agrees to the following provisions: • Town approval is required for all Event marketing materials for publication regardless of medium. • Town approval is required for any proofs that include the Town or Vail Mountain logo. • Items requiring Town approval must be submitted to the Town a minimum of 14 days prior to publication. • The Town may reduce its Total Contribution for marketing items that Recipient fails to submit properly and in a timely manner. • Recipient shall use the Town logo and shall make Town social media mentions and hashtags wherever reasonably possible. In doing so, Recipient shall comply with the Town's exact usage guidelines. February 18, 2020 - Page 113 of 121 11 2/13/2020 HTTPS://VAILCOGOV.SHAREPOINT.COM/SITES/ECONDEV/SHARED DOCUMENTS/CSE/2020 EVENTS/TASTE OF VAIL/TASTE OF VAIL 2020 FUNDING AGREEMENT.DOCX EXHIBIT C SPONSOR BENEFITS FORM The following additional benefits are due to the Town of Vail in consideration of the event funding: 16 Sponsor Passes (Able to go to all Signature events: Debut of Rose, American Lamb Aprés Tasting, Mtn Top Tasting, & Grand Tasting 200 individual lamb tickets 14 Debut of Rosé tickets 18 gift bags Top tier logo placement on all print and digital media and prominent placement on the website. Logo inclusion in all email communications sent to the event database. Tagging of Town of Vail social media accounts in a minimum of 10 event posts. Option for 10x10 activation space at events that have a vendor presence. One-time access to your email list to send an invitation to sign up for Town of Vail emails. 1 Full page ad in the Taste of Vail printed program. Logo inclusion on stage signage commensurate with sponsorship level. A minimum of 4 PA mentions per event. February 18, 2020 - Page 114 of 121 12 2/13/2020 HTTPS://VAILCOGOV.SHAREPOINT.COM/SITES/ECONDEV/SHARED DOCUMENTS/CSE/2020 EVENTS/TASTE OF VAIL/TASTE OF VAIL 2020 FUNDING AGREEMENT.DOCX NO EMPLOYEE AFFIDAVIT [To be completed only if Recipient has no employees] 1. Check and complete one: I, _______________________________, am a sole proprietor doing business as __________________________. I do not currently employ any individuals. Should I employ any employees during the term of my Agreement with the Town of Vail (the "Town"), I certify that I will comply with the lawful presence verification requirements outlined in that Agreement. OR I, ______________________________, am the sole owner/member/shareholder of ___________________________, a ______________________________ [specify type of entity – i.e., corporation, limited liability company], that does not currently employ any individuals. Should I employ any individuals during the term of my Agreement with the Town, I certify that I will comply with the lawful presence verification requirements outlined in that Agreement. 2. Check one. I am a United States citizen or legal permanent resident. The Town must verify this statement by reviewing one of the following items:  A valid Colorado driver's license or a Colorado identification card;  A United States military card or a military dependent's identification card;  A United States Coast Guard Merchant Mariner card;  A Native American tribal document;  In the case of a resident of another state, the driver’s license or state-issued identification card from the state of residence, if that state requires the applicant to prove lawful presence prior to the issuance of the identification card; or  Any other documents or combination of documents listed in the Town’s “Acceptable Documents for Lawful Presence Verification” chart that prove both Recipient’s citizenship/lawful presence and identity. OR I am otherwise lawfully present in the United States pursuant to federal law. Recipient must verify this statement through the federal Systematic Alien Verification of Entitlement ("SAVE”) program, and provide such verification to the Town. ____________________________________ __________________________ Signature Date February 18, 2020 - Page 115 of 121 13 2/13/2020 HTTPS://VAILCOGOV.SHAREPOINT.COM/SITES/ECONDEV/SHARED DOCUMENTS/CSE/2020 EVENTS/TASTE OF VAIL/TASTE OF VAIL 2020 FUNDING AGREEMENT.DOCX DEPARTMENT PROGRAM AFFIDAVIT [To be completed only if Recipient 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 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 COLORADO ) ) 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 February 18, 2020 - Page 116 of 121 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: Spring B ack to Vail Update February 18, 2020 - Page 117 of 121 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: 2019 Deed-Restricted Employee Housing Compliance Status Report P RE S E NT E R(S ): George Ruther, Housing Director and Lynne Campbell, Housing Coordinator B AC K G RO UND: Annually, the Town of Vail Housing Department is charged with verifying compliance of deed-restricted properties in the Town of Vail. T here are 888 deed-restricted properties requiring verification. A s a courtesy, Housing staff sent affidavit forms to deed-restricted property owners on December 13, 2019 reminding each of their F ebruary 1 obligation to provide documentation demonstrating compliance. As of the F ebruary 1 deadline 57%, or 501 deed- restricted units have complied. AT TAC H ME N TS: Description 2019 Deed-Restricted E H U Compliance Status Report Memorandum February 18, 2020 - Page 118 of 121 Memorandum To: Vail Town Council From: Lynne Campbell, Housing Coordinator Date: February 18, 2020 Subject: 2019 Deed-Restricted Employee Housing Compliance Status Report I. SUMMARY The Town of Vail Housing Department is charged with verifying compliance of more than 888 deed-restricted properties in the Town of Vail, annually. As a courtesy, Housing staff sent affidavit forms to deed-restricted property owners on December 13, 2019 reminding each of their obligation to provide documentation demonstrating compliance by no later than February 1, 2020, per the terms the recorded deed-restrictions. As a result, 501 deed-restricted property owners, or 57%, submitted the required documentation by the February 1st deadline. See Attachment A for breakdown of received affidavits. II. NEXT STEPS The Housing Department, in collaboration with the Police Department, is preparing to respond to the lack of compliance, including the potential issuance of municipal court summons to all who have not complied by February 14, 2020. February 18, 2020 - Page 119 of 121 2019 EHU Compliance statsGeneration Requirement# of Owners# of EHUs # Rec'd RentedOwner OccupiedMail returned Non-CompliantVail InDEED included in #% Received CommentsPre-1992no requirement25 26 7 4 0 1 0 0 27% 7 received- 4 rented, 1 mail returned1992-1994no rental, yes affidavit19 20 11 9 0 0 9 0 55% 11 received - 9 rented1994-April 4, 2000yes rental, yes affidavit39 62 40 31 8 0 23 0 65%31 rented, 8 owner occupied; 1 unrented, (1 unbuilt recorded restriction - counted toward owner occ)Post April 4, 2000yes rental, yes affidavit103 401 239 212 27 0 162 135 60%TOTAL: 212 rented; 27 owner occupiedNon Vail INDEED 179 rented, 11 owner occupiedVail InDEED 49 submitted - 33 rented, 16 owner occupiedPrice Appreciation Capyes rental, yes affidavit105 254 204 0 204 0 50 0 80%28 rentals: City Mkt (18), ERWSD (7), Mtn Valley Dev (3)Town of Vail Ownedyes rental, yes affidavit1 125 0 0 0 0 125 0 0% 96 (Timber Ridge) operated by Corum Real Estate292 888 501 256 239 369 135Required Affidaits 862 494 57%Updated 2/1/2020ATTACHMENT AFebruary 18, 2020 - Page 120 of 121 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: A djournment 6:35 pm estimate February 18, 2020 - Page 121 of 121