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HomeMy WebLinkAbout2023-02-21 Agenda and Supporting Documentation Town Council Evening Meeting Agenda1.Citizen Participation (10 min.) 1.1 Citizen Participation 2.Any action as a result of executive session 3.Consent Agenda (5 min.) 3.1 January 3, 2023 TC meeting Minutes 3.2 January 17, 2023 TC Meeting Minutes 3.3 Resolution No. 6, Series of 2023, A Resolution Approving a State of Colorado Subaward Agreement between the Town of Vail and the Colorado Department of Transportation Approve, approve with amendments, or deny Resolution No. 6, Series of 2023 Background: The Town of Vail and the Colorado Department of Transportation wish to enter into an agreement with the purpose of providing capital, planning and operating assistance to support public transportation. 3.4 Resolution No. 7, Series of 2023, A Resolution Approving the Purchase of Residential Property Approve Resolution No. 7, Series of 2023 authorizing the Town Manager to enter into an agreement, in a form approved by the Town Attorney, the purchase of Buffer Creek VAIL TOWN COUNCIL MEETING Evening Session Agenda Town Council Chambers and Virtually via Zoom Zoom Meeting Link: https://us02web.zoom.us/webinar/register/WN_W4cVfgU2RlWWXMPIRLy7Kw 6:00 PM, February 21, 2023 Notes: Times of items are approximate, subject to change, and cannot be relied upon to determine what time Council will consider an item. Public comment will be taken on each agenda item. Citizen participation offers an opportunity for citizens to express opinions or ask questions regarding town services, policies or other matters of community concern, and any items that are not on the agenda. Please attempt to keep comments to three minutes; time limits established are to provide efficiency in the conduct of the meeting and to allow equal opportunity for everyone wishing to speak. Citizen Participation.pdf 010323 TC Minutes.pdf 011723 TC Minutes.pdf 2023-06 CDOT Subaward Agreement -jmm.docx IGA Subaward Agreement with CDOT.pdf 1 Condominium, Unit A6, 1860 Meadow Ridge Road, Vail, CO 81657 in the amount of, and not to exceed, $517,500, plus closing costs Background: The ability of housing for its employees remains an ongoing need for the Town of Vail municipal government. As the fourth largest employer in Vail. the Town of Vail too is challenged by the need for housing for its workforce. AS the FTE count for the Town grows so does it's need to support housing for the employees. Over the years the Town has taken a wide range of approaches to addressing its employee housing needs, including "buying down" homes for purchase by Town of Vail employees. Availability of adequate housing remains a primary barrier to acceptance of employment offers for the Town of Vail. 3.5 Resolution No. 8, Series of 2023, A Resolution of the Vail Town Council Approving a Street Cut Permit Pursuant to Section 8-1-21 Vail Town Code Approve, approve with amendments, or deny Resolution No. 8, Series of 2023. Background: The Town Council wishes to approve a street cut permit to allow for certain work to be performed relating to the property known as West Middle Creek, with a physical address of 305 North Frontage Road West, Vail, Colorado. 3.6 Contract Award to A-1 Chipseal for the 2023 Vail Slurry Seal Project Authorize the Town Manager to enter into an agreement, in a form approved by the Town Attorney, with A-1 Chipseal to complete the 2023 Vail Slurry Seal Project in the amount not to exceed $194,842.00. Background: The 2023 Slurry Seal Project is budgeted with the Capital Street Maintenance budget and is within the engineer’s estimate. Roads included in this year’s asphalt preventive maintenance project are Westhaven Dr, Westhaven Cir, Greenhill Ct, Bald Mountain Rd, Manns Ranch Rd, Booth Falls Rd, Booth Falls Ct, Katsos Ranch Rd, Aspen Ln, Aspen Ct and Booth Creek Dr. 3.7 Contract Award to CMT Technical Services for the Geotechnical Work at West Middle Creek Direct the Town Manager to enter into a contract, as approved by the Town Attorney, with CMT Technical Services in an amount not to exceed $228,500. Resolution No. 7, Series of 2023 Authorization to Purchase 02212023.doc Contract to Buy and Sell Real Estate Purchase of 1860 Meadow Ridge Unit A6 02142023.pdf Resolution No. 8 Series of 2023.docx I-70 ROW Exhibit Area2.pdf council_memo-slurry.pdf 2 Background: The Town of Vail has initiated due diligence for future residential development on Lots 4& 5 of the Middle Creek Subdivision ("West Middle Creek Parcel"). To facilitate and inform the due diligence and design processes and to determine risks and associated costs related to any residential development, geotechnical investigations are required. 3.8 Contract Award to Drop Bike, DBA Drop Mobility for the Shift Bike Regional Electric Bike Share Program Direct the Town Manager to enter into an agreement in a form approved by the town attorney with Drop Bike, DBA Drop Mobility in amount not to exceed $224,000 for the execution of the expanded Shift Bike Regional Electric Bike Share Program in 2023. Background: Following the successful 2022 Shift Bike Regional Electric Bike Share Program, Vail Town Council allocated $225,000 in the 2023 budget for staff to launch an expanded regional electric bike share program in collaboration with Town of Avon, EagleVail Metro District, Edwards Metro District, and Eagle County Government with Drop Mobility as the vendor and operator of the system. 3.9 Contract Award to Populous for the Dobson Ice Arena Conceptual Design Authorize the Town Manager to enter into an agreement, in a form approved by the Town Attorney, with Populous Architects to perform conceptual design and cost estimating for the Dobson Ice Arena Renovation Project in the amount of, and not to exceed, $344,600. Background: The Town Council and VRD Board met in July 2022 in a joint work session and instructed the Town staff to begin the renovation process of the arena. On November 18, 2022, the Town issued a Request for Qualifications for design services for the arena. The town received 8 proposals from qualified design teams. A team of interdepartmental town staff and VRD staff narrowed the eight responding teams down to a shortlist of four teams. Populous was chosen as the architect and engineering team to work on the Dobson project. 3.10 Contract Award to RoadSafe Traffic Systems Inc. for the 2023 Roadway Striping Maintenance Authorize the Town Manager to enter into an agreement, in a form approved by the Town Attorney, with RoadSafe Traffic Systems Inc. for an amount not to exceed $57,281.40 for the maintenance work for roadway striping for all Town roads. Background: The Town of Vail publicly bids roadway striping maintenance work each year. This year the Town received two bids. West Middle Creek Geotechnical Report Contract Award 02212023.pdf Shift Bike memo.pdf Shift Bike proposal.pdf Dobson Memo.pdf Council Memo 2-21-23.docx 3 4.Town Manager Report (10 min.) 4.1 Council Matters Status Report 4.2 Strategic Planning Session Update 5.Presentation/Discussion 5.1 Vail Pedestrian Village Safety Project Update 40 min. Listen to presentation and confirm project direction. Presenter(s): Tom Kassmel, Town Engineer Background: The Town of Vail has contracted with Kimley Horn to complete the design of the Vail Pedestrian Village Safety Project which includes the selection of and the design of approximately 70 bollards and or equivalent safety measures and barricades at various locations within the Vail Village, the Lionshead Village, and Ford Park. The purpose of this discussion is to confirm the project goals, review the initial concept, and identify initial concerns. Staff Recommendation: Staff Recommends that the Council confirms the project goals and provide and additional input and or direction. 6.Action Items 6.1 Ordinance No. 2, Series of 2023, First Reading, An Ordinance Amending Section 12-11-4 of the Vail Town Code Concerning Renovations to Jointly Owned Properties 5 min. Approve, approve with amendments or deny Ordinance No. 2, Series of 2023 upon first reading. Presenter(s): Jamie Leaman-Miller, Planner Background: Under Colorado law, any covenant, restriction, or condition that "effectively prohibits or restricts the installation or use of a renewable energy generation device is void and unenforceable." C.R.S. § 38-30-168(1)(a). While generally requiring written approval for renovations to any jointly-owned property is well within the Town's authority, this process creates a conflict when applied to the installation of solar or other renewable energy generation devices upon a commonly- owned property. 6.2 Ordinance 3, Series of 2023, First Reading, An Ordinance Amending Title 3 of the Vail Town Code by the Addition of 10 min. 230221 Matters.docx Strategic Planning Session 021223.docx Council Memo 2-21-23.docx Town Council 2-21-23 Presentation.pdf Public Input Bollards.pdf Staff Memorandum - Ordinance No. 2.pdf Ordinance 2, Series of 2023 Amendment Title 12-11-4.pdf Attachment B. Staff Memorandum PEC22-0031_1-9-23.pdf Attachment C. PEC Results 1-9-23.pdf 4 a New Chapter 7, Establishing the Building and Fire Code Appeals Board, and Amending Title 10 of the Vail Town Code by the Addition of a New Section 10-1-13, Establishing Procedures for the Appeals Process. Approve, approve with amendments, or deny Ordinance No. 3, Series of 2023 upon first reading. Presenter(s): CJ Jarecki, Chief Building Official Background: The BFCAB, or some variant of an Appeals Board, has been in existence in the Town for many decades. The codes adopted by the Town, published by the International Code Council, specify that this Board shall be established by the Town. As such, this Board is essential to the successful administration of the adopted codes of the Town. Unfortunately, a search of the current and historical Town Municipal Code and Charter have shown that there is no language provided for the BFCAB or its function. Additionally, language regarding the appeals process was inadvertently deleted from the Vail Town Code during the code adoption that took place in July of 2022. The second part of the ordinance simply puts this language back into the Vail Town Code. 6.3 Ordinance No. 4, Series of 2023, First Reading, An Ordinance of the Vail Town Council Amending Section 4- 1-6 of the Vail Town Code to Exempt Certain Businesses from Local Business License Requirements 5 min. Approve, approve with amendments, or deny Ordinance No. 4, Series of 2023 Presenter(s): Lauren Noll, Sales Tax Administrator Background: The purpose of Ordinance No. 4, Series 2023 is to amend business licensing requirement exemptions as defined by Title 4, Chapter 1 of the Vail Town Code to comply with Senate Bill 22-032. 7.Adjournment 7:25pm (estimate) Memo - Ordinance 3, Series of 2023, BFCAB.pdf Ordinance 3, Series of 2023 - BFCAB.pdf Ordinance No. 4, Series 2023.pdf Meeting agendas and materials can be accessed prior to meeting day on the Town of Vail website www.vailgov.com. All town council meetings will be streamed live by High Five Access Media and available for public viewing as the meeting is happening. The meeting videos are also posted to High Five Access Media website the week following meeting day, www.highfivemedia.org. Please call 970-479-2136 for additional information. Sign language interpretation is available upon request with 48 hour notification dial 711. 5 AGENDA ITEM NO. 1.1 Item Cover Page DATE:February 21, 2023 SUBMITTED BY:Steph Johnson ITEM TYPE:Citizen Participation AGENDA SECTION:Citizen Participation (10 min.) SUBJECT:Citizen Participation SUGGESTED ACTION: VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: Citizen Participation.pdf 6 7 8 9 10 11 12 13 14 15 16 17 18 From:JOHN & DIANA DONOVAN To:Council Dist List Subject:Fwd: Letters to Vail: Town to Take Up Awarding a Contract for the Remodel of the Dobson Ice Arena and to Consider the Installation of Bollards in the Town. Date:Tuesday, February 21, 2023 8:43:27 AM PLEASE READ. VERY DIRECT AND VERY IMPORTANT! The rendering in this notice makes me sick to my stomach. You need to do needed maintenance and make Dobson shine. It is a unique part of Vail. Not something to casually discard. The cultural facility that seems to be a done deal in your minds, even though it came out of thin air from a special interest group, is not financially viable but it matches the Dobson drawing and the approved new Evergreen. There are so many huge projects on the table now that there is no way any of them will get the attention each of them needs. Your big sustainability study has become a farce. There is nothing sustainable about what you are deciding. The town has never been able to afford the operational costs of the things you seem hell bent on building. You still have not identified who our ideal guest is. You never ask questions about DRB or P E C. Why not? Staff is determining those outcomes. Not unbiased Vail citizens on boards or council. Consultants are driving ridiculous out comes by working with staff knowing it will have no real review from the community nor council, who seem to like whatever they see. The Hub site/Civic Center plan was driven by a flawed process controlled by staff. It is a disaster! Better to lose TIFF funds than to get this all wrong! Bollards are absurd! There are other approaches I expect your next new idea will be to study the Covered Bridge. Am sure a consultant will suggest a metal tube with glass windows and colored flashing lights. Something unique to build their resume snd further diminish the Vail brand…if we even have a brand anymore. Pick a project and do it right! Your legacy as council members is on the line. And Vail’s future is on the line! Happy to discuss any of this. I am not wrong! Sent from my iPhone Begin forwarded message: From: Vail Homeowners Association <vha@vail.net> Date: February 20, 2023 at 5:02:48 AM MST To: dianamdonovan@msn.com Subject: Letters to Vail: Town to Take Up Awarding a Contract for the Remodel of the Dobson Ice Arena and to Consider the Installation of Bollards in the Town. Reply-To: vha@vail.net  TOV work began on the Dobson Arena in the early 1970s with completion in 1979. 19 VAIL HOMEOWNERS ASSOCIATION Letters to Vail Town to Take up Awarding a contract for the Remodel of the Dobson Ice Arena and to Consider the Installation of Bollards in the Town. February 20, 2023 The Dobson Ice Arena On Tuesday evening, the Town Council will consider awarding a contract to Populous Architects for the renovation of the Dobson Ice Arena. The Arena is due for an overhaul. It was originally constructed in 1979 and, since then, has only had one addition and a few other improvements. Recently, the Town had a structural analysis of the arena which determined the building was sound and did not have to be replaced. As a result, it now plans to have a major remodel of the facility. It is anticipated that the Town may use Vail Reinvestment Funds from the Vail Reinvestment Authority to fund all or a portion of the project. It is the intent to have the project designed, entitled and construction initiated by the spring of 2024. The proposal to be considered Tuesday night is in response to a request for a proposal that had been issued in November. According to the Town, it received 8 proposals and narrowed the presenters down to Populous. It is the intent of the Town to have Populous provide a conceptual design, schematic design, design development, entitlement and ultimately construction documents. This is part of the Civic Area plan that was adopted in 2019. Dobson Arena Remodel is Option 3 in the 2019 Civic Area Master Plan. While this proposal involves only the Dobson Arena, it is considered to be Option 3 of the Civic Area Plan. Other aspects of that plan include space for cultural events and potentially the Town’s administrative offices. Recently, a new Cultural Alliance group presented plans to the Town Council for the area at the east end of the Lionshead parking structure, the old Charter bus lot 20 which is currently occupied by the Children’s Garden of Learning, but those plans are not part of this process.  Vail Cultural Center proposed in October 2022 for the east end of the Lionshead Parking Structure. Dobson should be complementary to these proposed uses but, first and foremost, serve the recreational needs of the community. It is anticipated that conceptual scenarios would be provided and sketch plans developed which extensively remodel the existing building and seek to add additional space most likely to the west and south of the building. The Bollard System Proposal The Town is also proposing to contract with a consultant to complete the design of the Vail Pedestrian Village Safety Project which includes the selection of and the design of approximately 70 bollards and or equivalent safety measures and barricades to be placed at various locations within Vail Village, Lionshead Village and Ford Park. The purpose of the discussion Tuesday night is to confirm the project goals, review the initial concept and identify initial concerns. Staff memo to Town Council and detailed presentation of the proposal. The proposed bollards, which could be used to block vehicular traffic in commercial areas, could have an effect on surrounding neighborhoods, depending upon their impact on the flow of traffic. Questions that should be considered are why does Vail need such a system, how and when will it be used, what will be the impact on traffic in surrounding areas and what is the cost of such a system. **************** VHA provides clear and concise discussions of matters affecting the Vail community in the belief that an informed citizenry will be an engaged citizenry. Our intent is to promote more citizen involvement and community discussions of issues facing the Town. If these are issues that concern you, please make your views known to town officials. By joining with VHA, as a member, paid-subscriber or reader you can add your voice to sustain what is good about our community and to shine a spotlight on important issues. 21 ***************** To receive VHA letters and reports as a Reader, Paid- Subscriber or Member contact:  vailhomeownersassoc@gmail.com PO Box 238 Vail, Colorado 81658 Telephone: (970) 331-2099 Email: vha@vail.net Website: www.vailhomeowners.com Copyright: 2023 Vail Homeowners Association | PO Box 238, Vail, CO 81658 Unsubscribe dianamdonovan@msn.com Constant Contact Data Notice Sent by vha@vail.net in collaboration with Try email marketing for free today! 22 From:Danny Padnick To:PublicInputTownCouncil Subject:Bottle Water Sales Date:Monday, February 20, 2023 10:16:45 AM I am disgusted by the amount of bottled water sold in our supermarkets. I realize we can't ban these sales but couldn't we have some kind of public relations campaign touting the benefits of our tap water. Signs in stores asking customers to take the "tap water challenge" would be great...the stores won't like it but I don't think they like bag laws either. Danny Padnick Buffehr Creek 23 From:Larry Steiner To:PublicInputTownCouncil Cc:letters@vaildaily.com Subject:Fwd: Highway lighting on I 70 Date:Monday, February 20, 2023 5:00:07 PM Could you please advise why neither CDOT or TOV cannot have all highway lights operating at both entrances and exits of West Vail, Dowd Junction, etc. as it is extremely dangerous especially on a snowy night not to be able to see the exits and roadway clearly. The lights exist and wondering why it is possible to keep them full operational avoiding creating extremely hazardous nighttime driving situations. Would you kindly respond to this email in writing, as I will not be able to follow the Town Council meeting. Thank you, Lawrence Steiner 2098 Vermont Rd Vail CO 81657 5168354888-cell > 24 From:BARB LOEBIG To:PublicInputTownCouncil Subject:Safety Concerns regarding ADA access into Lionshead Date:Tuesday, February 21, 2023 11:37:41 AM Good morning! We have been a condo owner in Vail/Lionshead since 2019 and enjoy our time in the mountains tremendously. Over the years, one issue has increasingly become of greater safety concern, and that is the lack of wheelchair/stroller access into Lionshead without involving steps. Along with many others, we travel across the pedestrian bridge, and then to avoid steps we must carefully navigate along the side of Frontage Road to get to either side of Lionshead. Even with extreme care on the side of the road, we have had numerous traffic incidents: cars coming across the line into our path (going too fast!); at night we just cannot see (nor can cars see us!) and is especially dangerous; and there are often vehicles stopped along the road for various reasons, and we must walk out in the lane of traffic to proceed. It is just not easy to get from the bridge to the heart of Lionshead on a path with disability access. We understand the area with steps next to the playground makes it complicated to install an ADA-approved path, but we feel it is something that is badly needed and a solution is feasible. Traveling via the road is just not safe, can be a lot for a new mom or elderly person to push a stroller or wheelchair for an extended time, and it’s a long distance for anyone walking who has difficulty managing steps. Many thanks for your consideration, and we look forward to your response. Barb & Brent Loebig 25 From:Ross Goldberg To:PublicInputTownCouncil Subject:pedestrian safety suggestion Date:Tuesday, February 21, 2023 3:02:52 PM Hello, I have a suggestion for a crosswalk of some sort. Where Vail Valley Drive and Sunburst drive meet. I drive past this intersection quite often throughout the year. I see many confused pedestrians and cyclists. I think a marked crosswalk could avoid a future incident. Please call me if you would like a better description. Best regards, Ross Goldberg Vail Realty 970-476-8800 26 From:Joe Shankland To:Council Dist List Subject:Parking for our kids sports Date:Sunday, February 19, 2023 12:44:47 PM Hello I am attending my sons hockey scrimmage today and just paid $20 to get out of the parking structure. We still have another two hours left but I had to go find parking somewhere else in the town of Vail to not pay $40 or $50 to watch my kid play hockey for a couple hours. I would like to propose a cap on how much the town of Vail charges when our kids play with the Vail rec district. We are families from up and down the valley that are supporting their youth programs that are available. The town of Vail is the only location where parents are concerned about the additional fees to watch their kid play a sport. This may also restrict what sports my son plays because I can’t afford the additional funds on top of the orogram fees I already pay for him to be in the activity. I hope the town Council will consider this at the next meeting. I look forward to hearing back from you. Respectfully Joe Shankland Sent from my iPhone 27 AGENDA ITEM NO. 3.1 Item Cover Page DATE:February 21, 2023 SUBMITTED BY:Stephanie Bibbens, Town Manager ITEM TYPE:Consent Agenda AGENDA SECTION:Consent Agenda (5 min.) SUBJECT:January 3, 2023 TC meeting Minutes SUGGESTED ACTION: VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: 010323 TC Minutes.pdf 28 Town Council Meeting Minute s of January 3, 2023 Page 1 Vail Town Council Meeting Minutes Tuesday, January 3, 2023 6:00 P.M. Vail Town Council Chambers The regular meeting of the Vail Town Council was called to order at approximately 6:00 P.M. by Mayor Langmaid . Members present: Kim Langmaid, Mayor Travis Coggin, Mayor Pro Tem Kevin Foley Jen Mason Pete Seibert Barry Davis Jonathan Staufer Staff members present: Russell Forrest, Town Manager Kathleen Halloran, Deputy Town Manger Matt Mire, Town Attorney Stephanie Bibbens, Town Clerk 1. Citizen Participation Douglas Smith, a Vail resident, thanked the frontline workers for the ir efforts over the holiday and invited Vail Resort representatives to visit the town. 2. Any action as a result of executive session There was none. 3. Consent Agenda 3.1 Resolution No. 1, Series of 2023, A Resolution Adopting the Town's Website as the Town's Posting Location. Approve, approve with amendments or deny Resolution No. 1, Series of 2023. Background: C.R.S. Section 24-6-402(2)(III), a local public body shall be deemed to have given full and timely notice of a public meeting if the local public body posts the notice, with specific agenda information if available, no less than twenty-four hours prior to the holding of the meeting on a public website of the local public body. The notice must be accessible at no charge to the public. The local public body, shall, to the extent feasible, make the notices searchable by type of meeting, date of meeting, time of meeting, agenda contents. and any other category deemed appropriate by the local public body. Coggin made a motion to approve, Foley se conded motion passed (7-0). 29 Town Council Meeting Minute s of January 3, 2023 Page 2 3.2 Contract Award to Peak Communications to Upgrade Town's Phone System Software Background: The Avaya telephone system was implemented in 2018 and has performed well for the town over the years. The Town's current version of Avaya Communications Manager will no longer be supported by the company as of the end of 2022, and so an upgrade and/or change is required. Direct the Town Manger to enter into an agreement in a form approved by the Town Attorney with Peak Communications for an amount not to exceed $65,000 to upgrade and transfer the town’s Avaya phone system software. Coggin made a motion to approve, Dav is seconded motion pa ssed (7-0). 4. Town Mana ger Report 4.1 Council Matters and Status Report Forrest reminded Council mem bers of an upcoming event on January 10, 2023 at the Donovan Pavilion for the Vail Police Department. 5. Action Items 5.1 Contract Award to Kimley Horn for the Vail Pedestrian Village Safety Project Presenter(s): Tom Kassmel, Town Engineer Background: The Town of Vail has budgeted for the design and installation of safety improvements, namely retractable bollards, within the high pedestrian areas of the Town of Vail, specifically; Vail Village, Lionshead Village, and Ford Park. Town staff advertised a Request for Proposals (RFP) for the design of these safety improvements and received two proposals. Authorize the Town Manager to enter into an agreement, in a form approved by the Town Attorney, with Kimley Horn for the Vail Pedestrian Village Safety Project in an amount not to exceed $282,585.00 Kassmel presented the potential installation locations for the proposed Vail Pedestrian Village Safety Improvement plan. Kassmel exp lained the improvements would be completed in phases. Phase I would focus on loading and delivery control, Phase II on perimeter control, Phase III on special event zones, and Phase IV any additional control. Vail Village would be a more extensive undertaking than Lionshead or Ford Park. Coggin asked to keep in mind future public consumption areas when looking at bollard placement. Kassmel stated the Phase III implementation could help with bringing back public consumption but there were other hurdles that would need to be tackled as well. 30 Town Council Meeting Minute s of January 3, 2023 Page 3 Foley asked if the $282,000 would cover the cost of completing Phase I of the installation. Kassmel explained the $282,000 was for the design contract and staff would have additional mon ey to complete the first Phase. He further explained there was $6 50,000 in the budget for the project for 2023. Staufer asked what the total budget for the project was and what the maintenance would be for the finished product. Kassmel stated the overall budget was almost $2M dollars and there would be yearly maintenance due to the hydraulics used for the retractable bollards. Foley asked if the weather was a concern regarding the retractable bollards. Kassmel explained Kim ley Horn had experience with the cold weather climate with bollard vendors and would make sure the project was feasible. Coggin made a motion to approve, Mason seconded motion passed (7-0). 6. Public Hearings 6.1 An appeal, pursuant to Section 12-3-3, Appeals, Vail Town Code, of the fina l decision of the Town of Vail Planning and Environmental Commission on November 14, 2022, approving a Major Exterior Alteration, pursuant to Section 12-7H-7, Exterior Alterations or Modifications, Vail Town Code, allowing for the redevelopment of the Evergreen Lodge, located at 250 South Frontage Road West/Lot 2W, Block 1, Vail Lionshead Filing 2, and Lot F-1, Vail Village Filing No. 2 and setting forth details in regard thereto (TC22- 0009) Presenter(s): Greg Roy, Senior Planner Background: HCT Member, LLC represented by Mauriello Planning Group, requests the review of a Major Exterior Alteration, pursuant to Section 12-7H-7, Exterior Alterations or Modifications, Vail Town Code, to allow for the replacement of the existing Evergreen Lodge with a new development, located at 250 South Frontage Road West. Pursuant to Section 12-3-3, Vail Town Code, the Vail Town Council must uphold, uphold with modifications, or overturn the Planning and Environmental Commission ’s December 6 2022, decision. The Town Council must act by motion, with such motion to be approved by a majority of those present. Roy explained that the application in question went before the Planning and Environment Commission multiple times before the final meeting in November, where the Commission voted to approve the project with the findings and conditions that were outlined in the staff report. Attorney Rohn Robbins re presented the appellant the Vail International Condominium Owners Association (VICOA). 31 Town Council Meeting Minute s of January 3, 2023 Page 4 Robbins explained the owners would be aggrieved by the proposed development by the massive scale and scope of the building. He explained the different concerns for the negative environmental effects, specifically to Middle Creek, various safety hazards posed by the proximity of the proposed development to the Vail Health Helipad, concerns regarding the additional strain to the employee housing crisis, the addition of traffic and congestion to the area and they did not believe the proposed development would contribute to “live” beds. Langmaid explained the Town Attorney had been in contact with the FAA regarding the concern over the helipad and the FFA stated it was out of the Town’s ju risdiction and the Town could not weigh in on the subject. Robbins stated he also spoke the Town Attorney and understood the FFA ’s statement but felt the Town Council still had a moral obligation to consider all safety issues. Sharon Cohn with the Solaris Group, reminded Council and the community that the Evergreen project had been a cumulative effort since 2015, beginning with the land exchange with Vail Health. She stated that the exchange accommodated the construction of Vail Health with the helipad factored in, as well as the new entrance on the South Frontage Road to help mitigate the traffic on West Meadow Drive. During that time , many studies were conducted regarding flight plans, vehicular and pedestrian traffic. Cohn also explained the 10-month PEC process worked as it should have. The project was a better product than a year ago because of the PEC’s guidance and the project complied with Lionshead Mixed Use 1 Zoning, the Lionshead Masterplan, and had strong support from the community. Cohn asked that the Council uphold the PEC’s approval. Dominic Mauriello, who represented the applicant, p resented the background of the construction of the Evergreen Lodge up to the current redevelopment application. Mauriello reviewed the 11-month PEC review process that began in February 2022 to the current January 3, 2023, meeting and over that course of time, the application was reviewed at 5 different meetings. Mauriello gave a detailed account for the community outreach regarding the project and stated there was a broad outreach to Vail residents and businesses from April 2022 to December 2022 and neighbors, which inclu ded the Vail International representatives, attended all five of the PEC hearings. Mauriello discussed the project’s zoning compliance, stream setback requirements, building height compliance, density compliance, GRFA compliance, the proposed landscaped area, and the parking and employee housing requirements. Mauriello addressed the appellant’s concerns regarding the project’s design which included the roof slope, windows, horizontal aspect of the west façade, vertical aspect of the building, massing and scale, elevations and the over all architecture of the building. 32 Town Council Meeting Minute s of January 3, 2023 Page 5 Mauriello also addressed the appellant’s environmental concerns regarding Mill Creek, the present walkway, restaurants in the Evergreen, parking, employee housing, “live” beds and public access ways and concerns regarding the helipad safety. Mauriello ended his presentation by requesting Council uphold the PEC’s approval of the project based on the criteria and finding found in the staff report to the PEC, the submittal materials provided by the applicant and the evidence found in the records of the project. Mason asked for more information regarding the 20 employee housing units and how many total beds there were. Cohn explained the housing units were a minimum of one to two bedrooms and there was flexibility in the plans for three-bedroom units. Foley asked for clarificat ion on the existing recreational path from Dobson Ice Arena that led to the Vail International Building. Mauriello explained that path would remain and the dirt path from the Evergreen Building would be eliminated. Staufer asked if the planned hotel would run as a three-, four-, or five-star hotel and how would they accommodate the number of employees it would take to run the hotel at the decided level. Mauriello stated they wanted to run as a four-star hotel. Cohn clarified there was an existing commercial property on site, and they currently have housing for their employees. The project proposed net new employee housing that would add to the already existing employee housing. Langmaid asked how the stream and restoration plan would be handled. Mauriello stated it would be a partnership between the Town of Vail staff and the applicant and that the applicant would seek LEED Certification. Cohn added throughout the application process, the team had been working through schematic designs with LEED Certification in mind. Staufer asked, in reference to the Lionshead Master Plan, if zoning was dependent on design, who had the final say, DRB or PEC. Mauriello explained it was a mixture of the two. PEC focused on the building and if it met criteria and DRB would focus more design requirements. Langmaid asked if there was a rebuttal from the appellant. Rollins addressed discrepancies with Mauriello’ s presentation. Some of the discrepancies addressed were comments made regarding the presented statics of occupancy, VICOA was 33 Town Council Meeting Minute s of January 3, 2023 Page 6 only asked to meet with the development team once, VICOA fully understood the proposed project and that was why they objected to it because they felt it was to o massive. Rollins stated VICOA did not oppose redevelopment to the property bu t felt the current proposal needed to go back to the drawing board because of its size and bulk. Rollins also addressed discrepancies re garding “live” beds for employee housing and reiterated VICOA’s concerns regarding the helipad at Vail Health. Rollins finished by asking Council to do the right thing and send the project back. Mire reminded Coun cil that the appeal was between two parties, Council could take public comment, but should base their decision on the appeal presented. Public comment was called. Elaine Lapin, a Vail resident, stated her disappointment that West Meadow Drive was not looked at for pedestrian safety and referenced her submittal to council prior to the meeting. She asked that Council not approve the project and ask the developers to go back to the drawing board. Merv Lapin, a Vail resident, expressed his concerns regarding the proximity of Vail Health’s helipad to the redevelopment and thought there should be more employee housing allocated than was required. Mire explained to Council that the appeal was based on whether or not the application complied with one of the Town’s already created zone districts and where were certain criteria and standards in those districts. Council could not negotiate, and it would be illegal for them to do so. The Town does not have jurisdiction with oversight of helipads. Alan Danson, a Vail resident. Stated it would be a mistake to ignore the PEC approval and the PEC really thought the application through. Kaye Ferry, a Vail resident, thought the project would enhance the changing guest experience. Ted Steers, a Vail resident, asked Council to embrace the hotel quality of the design and requested they uphold the PEC’s approval. Johannes Faessler, Sonnenalp Hotel, agreed with Danson and stated he hadn’t heard anything during the appeal to justify Council reversing the PEC’s approval. Jim Wear, on behalf of Vail Health, stated the hospital was in support of the development and the hospital did not have an issue with the design which included the helipad concerns. Peter Dan, with East West, stated he provided the statistics for the occupancies presented by the applicant. He wanted to validate the information and explained the numbers given were conservative and spoke in support of the project. 34 Town Council Meeting Minute s of January 3, 2023 Page 7 Mike Glass, President of First Western Trust Bank, asked Council to uphold the PEC’s decision and advocated for the Solaris Group. Mark Gordon, a Vail resident, asked Council to trust the PEC members and the process of the PEC. Ronald Snow, Scorpio Con dominiums, expressed concerns regarding the location of the redevelopment of the Evergreen in relation to the flight paths of Flight for Life helicopters. Greg Tonkovich, Vail International, expressed his concerns with the effects of the redevelopment on Middle Creek and the loss of existing walking paths. Guillermo Velasco, owner at Vail International, explained he thought there should be a redevelopment but there should be a pause to rethink the project so it would comply with the Town of Vail and Lionshead Master Plan. Joshua McMahon, represented an owner from the Evergreen Lodge, agreed with the points made by the appellant and urged the Council to overrule the PEC’s decision. Pamela Steinmark, a Vail resident, expressed her concerns that mass models ha d not been produced for the proposed redevelopment and worried about the location of the project in relation to the helipad and the potential used of EHUs for other developments. Public comment ended. Seibert felt the PEC applied the code and didn’t see a reason to overturn their decision. Staufer expressed his concerns regarding the mass modeling and public safety with the helipad. He requested a letter from the FAA stating the project didn’t interfere with flight plans. Langmaid stated the project isn’t a Special Development District and Council didn’t have leeway to negotiate and believed the PEC met the criteria and would vote in favor of the projected moving forward. Davis agreed with Langmaid and that the PEC did their job. Mason stated she would also vote in favor of the project moving forward and that she felt this was a very thoughtful process and the DRB would also be thoughtful in their process. Foley felt the applicant’s presentation addressed some of the concerns brought up during public comment and stated he had faith that the DRB would take care of the other concerns during their process. Coggin made a motion to approve, Davis seconded motion passed (7-0). 6.2 Ordinance No. 25, Series of 2022, Second Reading, An Ordinance Rezoning Lot 5 of the Middle Creek Subdivision, a Re-subdivision of Tract A, from Natural Area Preservation (NAP) to Housing (H); Lot 4 of the Middle Creek Subdivision, a Re- 35 Town Council Meeting Minute s of January 3, 2023 Page 8 subdivision of Tract A, from Natural Area Preservation (NAP) to General Use (GU), and the Remainder of Tract A, Middle Creek Subdivision, a Re-subdivision of Tract A, From General Use (GU) to Natural Area Preservation (NAP) Presenter(s): Greg Roy, Senior Planner Background: The subject property was annexed into the Town of Vail in 1968 with Ordinance No. 8, Series of 1969. Ordinance No. 19, Series of 1995 zoned the portions of Tract A from Agricultural Open Space to the General Use and Natural Area Preservation districts. This rezoning was part of a larger rezoning that occurred after the passage of the 1994 Open Lands Plan adoption. In 2002, the property was subdivided to create Lots 1 and 2 to facilitate the development of Middle Creek Housing and to create the site for the telecom tower. In 2020, a subdivision application was approved by the PEC to create Lot 3 as the site for the Residences at Main Vail project. Staff Recommendation: The Planning and Environmental Commission held a public hearing on the proposed Zone District Boundary Amendment on December 12, 2022, where a recommendation for approval was forwarded to the Vail Town Council by a vote of 4 -2-0 (Pratt and Perez opposed). Roy explained there were no changes made to the ordinance since the first reading. Public comment was called. There was none. Foley made a motio n, Coggin seconded motion passed (7-0). There being no further business to com e before the council, Foley moved to adjourn the meeting ; Staufer seconded motion passed (7-0), meeting adjourned a t 8:45 pm. Respectfully Submitted, Attest: __________________________________ Kim Langmaid, Mayor ___________________________________ Stephanie Bibbens, Town Clerk 36 AGENDA ITEM NO. 3.2 Item Cover Page DATE:February 21, 2023 SUBMITTED BY:Stephanie Bibbens, Town Manager ITEM TYPE:Consent Agenda AGENDA SECTION:Consent Agenda (5 min.) SUBJECT:January 17, 2023 TC Meeting Minutes SUGGESTED ACTION: VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: 011723 TC Minutes.pdf 37 Town Council Meeting Minutes of January 17, 2023 Page 1 Vail Town Council Meeting Minutes Tuesday, January 17, 2023 6:00 P.M. Vail Town Council Chambers The regular meeting of the Vail Town Council was called to order at approximately 6:00 P.M. by Mayor Langmaid . Members present: Kim Langmaid, Mayor Travis Coggin, Mayor Pro Tem Kevin Foley Jen Mason Pete Se ibert Barry Davis Jonathan Staufer Staff members present: Russell Forrest, Town Manager Kathleen Halloran, Deputy Town Manager Matt Mire, Town Attorney Stephanie Bibbens, Town Clerk 1. Citizen Participation Taylor Gardarian, a resident of Eagle, CO, addressed Town Council regarding his organization, Open-Source Citizen Control of the United States of America. Stephen Connelly, a Vail resident, explained that 600 trees were thrown away every year and proposed the idea of a reusable Christmas tree program. 2. Any action as a result of executive session There was none. 3. Consent Agenda 3.1 December 6, 2022 TC Meeting Minutes Foley made a motion to approve, Da vis se conded motion passed (6-0 Langm aid abstained). 3.2 December 22, 2022 TC Meeting Minutes Foley made a motion to approve, Coggin se conded motion passed (7-0). 3.3 Resolution No. 2, Series of 2023, A Resolution of the Vail Town Council Approving an Intergovernmental Agreement between the Town of Vail and the State of Colorado 38 Town Council Meeting Minutes of January 17, 2023 Page 2 Department of Transportation ("CDOT") regarding a Multi-modal Transportation and Mitigation Options Fund Grant Approve, approve with amendments, or deny Resolution No. 2, Series of 2023. Background: The Town wishes to enter into an agreement with CDOT to receive grant funds in the amount or $250,000 for the necessary capital improvements to expand the Vail E-Courier Loading and Delivery program. Coggin made a motion to approve; Mason seconded motion passed (7-0). 3.4 Resolution No. 3, Series of 2023, A Resolution of the Vail Town Council Extending the Approvals of the Approved Development Plan, Conditional Use Permit and Final Design for the Booth Heights Project Approve, approve with am endments, or deny Resolution No. 3, Series of 2023. Background: To allow the Town and The Vail Corporation sufficient time to participate in court- ordered mediation in the Condemnation Action, the Town Council finds and determines that it is in the best inte rest of the public health, safety and welfare to further extend the term of the approvals of the development plan, conditional use permit and final design for the Booth Heights Project. Before Council voted, Langmaid addressed the community. Langmaid recognized Council had received numerous emails regarding the extension of approvals for Booth Heights and explained Cou ncil was following up on further negotiations with Vail Corporation, which began because of a court ordered mediation. Langmaid stated the condemnation action was put on hold temporarily, but if the negotiations with Vail Corporation was unsuccessful, Council would continue with the court process and proceed with the condemnation action. Coggin made a motion to approve, Davis seconded motion passed (7-0). 3.5 Contract Award with Pro Force Law Enforcement Supply to Purchase Weapons and Accessories for all Sworn Officers Approve the purchase for sidearms, holsters, sighting system and weapon mounted lights for all sworn officers not to exceed $60,000. Background: The Police Department is requesting permission to purchase firearms, holsters, sighting system and weapon mounted lights for all sworn personnel. Coggin made a motion to approve; Mason seconded motion passed (7-0). 4. Town Mana ger Report 4.1 Council Matters and Status Report 39 Town Council Meeting Minutes of January 17, 2023 Page 3 4.2 Community Meeting, March 28, 2023 Forrest confirmed the date for the Community Meeting to be held on March 28, 2023, instead of March 14, 2023. 4.3 Skiing with Elected Officials on Vail Mountain, March 31, 2023 Forrest confirmed the date for the Skiing with Elected Officials on Vail Mountain event will be held on March 31, 2023. 5. Action Items 5.1 Contract Award to Predator Mountainwear for the 2023 Town of Vail Outerwear Uniform Presenter(s): Susie Hervert, General Services Admin. Background: The Town of Vail historically purchases outerwear uniforms for employees every four years. The replacement schedule was for the 22-23 ski season, but the Town had to defer for one year due to supply chain issues and difficulties in finding an outerwear supplier that offered products that could meet the needs of our varied employee groups – particularly in our maintenance divisions. Staff Recommendation: Authorize the Town Manager to enter into a purchase with Predator Mountainwear in a not-to-exceed amount of $185,000 and approve an increase of $35,000 to the Town’s outerwear uniform budget to be included in the first budget supplemental of 2023. Hervert explained due to the supply chain issues and difficulties in finding outwear that offered products that met the need of the Town’s varied employee groups, the replacement schedule for the 22-23 was delayed and asked for an increase in budget because of inflation. Davis made a motion to approve, Foley seconded motion passed (7-0). 5.2 Permission to Proceed Utility and Drainage Easement in the Vicinity of 483 Gore Creek Drive Presenter(s): Greg Roy, Senior Planner Background: The HOA of the Texas Townhomes, located at 483 Gore Creek Drive, represented by Pierce Austin Architects and High Summit Planning, Sean Hannigan, requests permission to proceed for a utility easement on Tract A, Vail Village Filing 5 on Town of Vail Stream Tract. The applicant requests permission to proceed to enter into a utility and drainage easement with the Town of Vail Staff Recommendation: Approve, approve with amendments or deny Easement of Town of Vail Property at 483 Gore Creek Drive. Roy summarized the application was an easement for utilities and drainage and would be along the western side of the property line. 40 Town Council Meeting Minutes of January 17, 2023 Page 4 Roy explained when the Texas Townhomes were first developed, the utilities were constructed off-site, and no easement was granted. Granting the easement for the applicant would help with future updates to the existing utilities that are not up to code and would also allow the applicant to make improvements to Track A and the adjacent right of way and went on to show some of the proposed improvements. Staufer asked where the drainage would be located. Roy referred to the site map that was provided in the Co uncil’s packet and stated the drainage would start at the south side of the town homes, go through the landscaping and it would come out to the easement back to the north towards Gore Creek and terminate at the end of the easement. Roy also stated there was another application in for improve ments to Tract A. Langmaid asked what the catalyst was for the improvement application. Roy explained one of the Texas Townhomes was looking at redevelopment and as they went through the DRB process, the applicant found the utilities that were currently se rvicing them were not up to standards. Public comment was called. Dan Reynolds, representing Vail Trails East, wanted to bring to Council’s attention two parking spaces that might be removed during the improvements the applicant proposed, which was a concern to his client. He stated his client would want the plan to be revised to include the two spaces for Vail Trails East and come to a more formal agreement with the Town if there wasn’t already one for that space. Coggin felt the application was leading to something bigger and there were questions about parking and was not comf ortable moving forward with the easement at this time. Coggin proposed to table the item until the applicant can address some of the issues that were presented. Coggin made a motion to table; Foley seconded motion passed (7-0). 5.3 Ordinance No. 1, Series of 2023, First Reading, an Ordinance Amending Chapter 14 of Title 4 of the Vail Town Code to Expand Acceptable Insurance Types for the Licensing of Short-Term Rental Properties. Presenter(s): Alex Jakubiec, Budget Analyst/STR Manager Background: Sin ce the approval of the most recent short-term rental ordinance, significant increases in coverage have been made to insurance policies offered by online marketplaces such as Aribnb and VRBO. Ordinance No. 1, Series 2023 expands the acceptable types of required short-term rental insurance to include these polices when they meet the other minimum standards. 41 Town Council Meeting Minutes of January 17, 2023 Page 5 Staff Recommendation: Approve, approve with amendments, or deny first reading of Ordinance No. 1, Series of 2023. Jakubiec explained there had been significant increases in coverage made to insurance policies offered by online marketplaces and th e Town would like to expand the acceptable types of required short-term rental insurance to include these polices when they met the other minimum standards. Coggin asked how the Town verified that the property owner used appropriate insurance for their short-term rentals. Jakubiec stated the Town would require an affidavit be signed by the owner which would state they were using approved platforms by the Town and staff also monitored listing services as a backup. Langmaid asked if VRBO, AirBNB and other entities were getting into insurance. Jakubiec explained those outlets used a third-party insurer and only offered insurance if an owner went through their site. Staufer asked how the Town handled if an owner went through a site part time and then rented on their own the other half of the time. Jakubiec stated the Town would require an additional insurance product such as homeowner’s insurance, commercial liability, or umbrella liability. Public comment was called. Steven Connelly, a Vail resident, thanked Jakubiec and the Finance Department for their quick work on the short-term rental insurance changes. Coggin made a motion to approve, Fole y seconded motion passed (7-0). There being no further business to com e before the council, Foley moved to adjourn the meeting; Staufer seconded motion passed (7-0), meet adjourned at 6:30p.m. Respectfully Submitted, Attest: __________________________________ Kim Langmaid, Mayo r ___________________________________ Stephanie Bib bens, Town Clerk 42 AGENDA ITEM NO. 3.3 Item Cover Page DATE:February 21, 2023 SUBMITTED BY:Stephanie Bibbens, Town Manager ITEM TYPE:Consent Agenda AGENDA SECTION:Consent Agenda (5 min.) SUBJECT:Resolution No. 6, Series of 2023, A Resolution Approving a State of Colorado Subaward Agreement between the Town of Vail and the Colorado Department of Transportation SUGGESTED ACTION:Approve, approve with amendments, or deny Resolution No. 6, Series of 2023 VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: 2023-06 CDOT Subaward Agreement -jmm.docx IGA Subaward Agreement with CDOT.pdf 43 RESOLUTION NO.6 Series of 2023 A RESOLUTION APPROVING A STATE OF COLORADO SUBAWARD AGREEMENT BETWEEN THE TOWN OF VAIL AND THE COLORADO DEPARTMENT OF TRANSPORTATION WHEREAS, the Town and the Colorado Department of Transportation wish to enter into an agreement with the purpose of providing capital, planning and operating assistance to support public transportation pursuant to the terms set forth in Exhibit A, attached hereto and incorporated herein by this reference (the "Agreement"), NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: Section 1.The Town Council hereby approves the Agreement in substantially the same form as attached hereto as Exhibit A, and in a form approved by the Town Attorney, and authorizes the Town Manager to execute the Agreement on behalf of the Town. 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 21st day of February 2023. ____________________________ Kim Langmaid, Mayor ATTEST: ___________________________ Stephanie Bibbens, Town Clerk 44 Contract Number: 23-HTR-ZL-00074/491003115 Page 1 of 45 Version 10/23/19 STATE OF COLORADO SUBAWARD AGREEMENT COVER PAGE State Agency Department of Transportation Agreement Number / PO Number 23-HTR-ZL-00074 / 491003115 Subrecipient TOWN OF VAIL Agreement Performance Beginning Date The Effective Date Initial Agreement Expiration Date June 30, 2024 Subaward Agreement Amount Federal Funds-Operating Maximum Amount (50%) Local Funds-Operating Local Match Amount (50%) Agreement Total $229,274.00 $229,274.00 $458,548.00 Fund Expenditure End Date June 30, 2024 Agreement Authority Authority to enter into this Agreement exists in CRS §§43-1-106, 43-1-110, 43-1-117.5, 43-1-701, 43-1-702 and 43-2-101(4)(c), appropriated and otherwise made available pursuant to the FAST ACT, MAP-21, SAFETEA_LU, 23 USC §104 and 23 USC §149. Agreement Purpose In accordance with 49 USC §5311, the purpose of this Agreement is to provide capital, planning, and operating assistance to states to support public transportation in rural areas with populations less than 50,000, where many residents often rely on public transit to reach their destinations. The work to be completed under this Agreement by the Subrecipient is more specifically described in Exhibit A. Exhibits and Order of Precedence The following Exhibits and attachments are included with this Agreement: 1. Exhibit A – Statement of Work and Budget. 2. Exhibit B – Sample Option Letter. 3. Exhibit C – Federal Provisions. 4. Exhibit D – Required Federal Contract/Agreement Clauses. 5. Exhibit E – Verification of Payment. In the event of a conflict or inconsistency between this Agreement and any Exhibit or attachment, such conflict or inconsistency shall be resolved by reference to the documents in the following order of priority: 1. Exhibit C – Federal Provisions. 2. Exhibit D – Required Federal Contract/Agreement Clauses. 3. Colorado Special Provisions in §17 of the main body of this Agreement. 4. The provisions of the other sections of the main body of this Agreement. 5. Exhibit A – Statement of Work and Budget. 6. Executed Option Letters (if any). Principal Representatives For the State: Erin Kelican Division of Transit and Rail Colorado Dept. of Transportation 2829 W. Howard Place Denver, CO 80204 erin.kelican@state.co.us For Subrecipient: Chris Southwick TOWN OF VAIL 75 SOUTH FRONTAGE ROAD W VAIL, CO 81657 csouthwick@vailgov.com DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 45 Contract Number: 23-HTR-ZL-00074/491003115 Page 2 of 45 Version 10/23/19 SIGNATURE PAGE THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT Each person signing this Agreement represents and warrants that the signer is duly authorized to execute this Agreement and to bind the Party authorizing such signature. SUBRECIPIENT TOWN OF VAIL By:_______________________ Name:________________________ Title:__________________________ Date: _________________________ STATE OF COLORADO Jared S. Polis, Governor Department of Transportation Shoshana M. Lew, Executive Director By:_______________________ Name:________________________ Title:__________________________ Date: _________________________ 2nd State or Subrecipient Signature if needed __________________________________________ __________________________________________ By: Print Name of Authorized Individual Date: _________________________ LEGAL REVIEW Philip J. Weiser, Attorney General __________________________________________ By: Assistant Attorney General Date: __________________________ In accordance with §24-30-202, C.R.S., this Agreement is not valid until signed and dated below by the State Controller or an authorized delegate. STATE CONTROLLER Robert Jaros, CPA, MBA, JD ___________________________________________ By: Department of Transportation Effective Date:_____________________ DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 46 Contract Number: 23-HTR-ZL-00074/491003115 Page 3 of 45 Version 10/23/19 TABLE OF CONTENTS 1. PARTIES................................................................................................................................................. 3 2. TERM AND EFFECTIVE DATE .......................................................................................................... 3 3. DEFINITIONS ........................................................................................................................................ 4 4. STATEMENT OF WORK AND BUDGET ........................................................................................... 6 5. PAYMENTS TO SUBRECIPIENT ........................................................................................................ 6 6. REPORTING - NOTIFICATION ........................................................................................................... 8 7. SUBRECIPIENT RECORDS ................................................................................................................. 9 8. CONFIDENTIAL INFORMATION - STATE RECORDS .................................................................... 9 9. CONFLICTS OF INTEREST ............................................................................................................... 10 10. INSURANCE ........................................................................................................................................ 11 11. BREACH OF AGREEMENT ............................................................................................................... 12 12. REMEDIES ........................................................................................................................................... 12 13. DISPUTE RESOLUTION .................................................................................................................... 14 14. NOTICES and REPRESENTATIVES .................................................................................................. 14 15. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION ...................................................... 14 16. GENERAL PROVISIONS .................................................................................................................... 15 17. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3) ..................................... 17 1. PARTIES This Agreement is entered into by and between Subrecipient named on the Cover Page for this Agreement (the “Subrecipient”), and the STATE OF COLORADO acting by and through the State agency named on the Cover Page for this Agreement (the “State”). Subrecipient and the State agree to the terms and conditions in this Agreement. 2. TERM AND EFFECTIVE DATE A. Effective Date This Agreement shall not be valid or enforceable until the Effective Date, and the Grant Funds shall be expended by the Fund Expenditure End Date shown on the Cover Page for this Agreement. The State shall not be bound by any provision of this Agreement before the Effective Date, and shall have no obligation to pay Subrecipient for any Work performed or expense incurred before the Effective Date, except as described in §5.D, or after the Fund Expenditure End Date. B. Initial Term The Parties’ respective performances under this Agreement shall commence on the Agreement Performance Beginning Date shown on the Cover Page for this Agreement and shall terminate on the Initial Agreement Expiration Date shown on the Cover Page for this Agreement (the “Initial Term”) unless sooner terminated or further extended in accordance with the terms of this Agreement. C. Extension Terms - State’s Option The State, at its discretion, shall have the option to extend the performance under this Agreement beyond the Initial Term for a period, or for successive periods, of one year or less at the same rates and under the same terms specified in this Agreement (each such period an “Extension Term”). In order to exercise this option, the State shall provide written notice to Subrecipient in a form substantially equivalent to the Sample Option Letter attached to this Agreement. D. End of Term Extension If this Agreement approaches the end of its Initial Term, or any E xtension Term then in place, the State, at its discretion, upon written notice to Subrecipient in a form substantially equivalent to the Sample Option Letter attached to this Agreement, may unilaterally extend such Initial Term or Extension Term for a period not to exceed two months (an “End of Term Extension”), regardless of whether additional Extension Terms are available or not. The provisions of this Agreement in effect when such notice is given shall remain in effect during the End of Term Extension. The End of Term Extension shall automatically terminate upon execution of a replacement Agreement or modification extending the total term of this Agreement. DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 47 Contract Number: 23-HTR-ZL-00074/491003115 Page 4 of 45 Version 10/23/19 E. Early Termination in the Public Interest The State is entering into this Agreement to serve the public interest of the State of Colorado as determined by its Governor, General Assembly, or Courts. If this Agreement ceases to further the public interest of the State, the State, in its discretion, may terminate this Agreement in whole or in part. A determination that this Agreement should be terminated in the public interest shall not be equivalent to a State right to terminate for convenience. This subsection shall not apply to a termination of this Agreement by the State for Breach of Agreement by Subrecipient, which shall be governed by §12.A.i. i. Method and Content The State shall notify Subrecipient of such termination in accordance with §14. The notice shall specify the effective date of the termination and whether it affects all or a portion of this Agreement, and shall include, to the extent practicable, the public interest justification for the termination. ii. Obligations and Rights Upon receipt of a termination notice for termination in the public interest, Subrecipient shall be subject to the rights and obligations set forth in §12.A.i.a. iii. Payments If the State terminates this Agreement in the public interest, the State shall pay Subrecipient an amount equal to the percentage of the total reimbursement payable under this Agreement that corresponds to the percentage of Work satisfactorily completed and accepted, as determined by the State, less payments previously made. Additionally, if this Agreement is less than 60% completed, as determined by the State, the State may reimburse Subrecipient for a portion of actual out-of-pocket expenses, not otherwise reimbursed under this Agreement, incurred by Subrecipient which are directly attributable to the uncompleted portion of Subrecipient’s obligations, provided that the sum of any and all reimbursement shall not exceed the Subaward Maximum Amount payable to Subrecipient hereunder. F. Subrecipient’s Termination Under Federal Requirements Subrecipient may request termination of this Agreement by sending notice to the State, or to the Federal Awarding Agency with a copy to the State, which includes the reasons for the termination and the effective date of the termination. If this Agreement is terminated in this manner, then Subrecipient shall return any advanced payments made for work that will not be performed prior to the effective date of the termination. 3. DEFINITIONS The following terms shall be construed and interpreted as follows: A. “Agreement” means this subaward agreement, including all attached Exhibits, all documents incorporated by reference, all referenced statutes, rules and cited authorities, and any future modifications thereto. B. “Award” means an award by a Recipient to a Subrecipient funded in whole or in part by a Federal Award. The terms and conditions of the Federal Award flow down to the Award unless the terms and conditions of the Federal Award specifically indicate otherwise. C. “Breach of Agreement” means the failure of a Party to perform any of its obligations in accordance with this Agreement, in whole or in part or in a timely or satisfactory manner. The institution of proceedings under any bankruptcy, insolvency, reorganization or similar law, by or against Subrecipient, or the appointment of a receiver or similar officer for Subrecipient or any of its property, which is not vacated or fully stayed within 30 days after the institution of such proceeding, shall also constitute a breach. If Subrecipient is debarred or suspended under §24-109-105, C.R.S., at any time during the term of this Agreement, then such debarment or suspension shall constitute a breach. D. “Budget” means the budget for the Work described in Exhibit A. E. “Business Day” means any day other than Saturday, Sunday, or a legal holiday as listed in §24-11-101(1), C.R.S. F. “CORA” means the Colorado Open Records Act, §§24 -72-200.1, et. seq., C.R.S. G. “Deliverable” means the outcome to be achieved or output to be provided, in the form of a tangible or intangible Good or Service that is produced as a result of Subrecipient’s Work that is intended to be delivered by Subrecipient. DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 48 Contract Number: 23-HTR-ZL-00074/491003115 Page 5 of 45 Version 10/23/19 H. “Effective Date” means the date on which this Agreement is approved and signed by the Colorado State Controller or designee, as shown on the Signature Page for this Agreement. I. “End of Term Extension” means the time period defined in §2.D. J. “Exhibits” means the exhibits and attachments included with this Agreement as shown on the Cover Page for this Agreement. K. “Extension Term” means the time period defined in §2.C. L. “Federal Award” means an award of Federal financial assistance or a cost-reimbursement contract, under the Federal Acquisition Regulations or by a formula or block grant, by a Federal Awarding Agency to the Recipient. “Federal Award” also means an agreement setting forth the terms and conditions of the Federal Award. The term does not include payments to a Subrecipient or payments to an individual that is a beneficiary of a Federal program. M. “Federal Awarding Agency” means a Federal agency providing a Federal Award to a Recipient. Federal Transit Administration (FTA) is the Federal Awarding Agency for the Federal Award which is the subject of this Agreement. N. “FTA” means Federal Transit Administration. O. “Goods” means any movable material acquired, produced, or delivered by Subrecipi ent as set forth in this Agreement and shall include any movable material acquired, produced, or delivered by Subrecipient in connection with the Services. P. “Grant Funds” means the funds that have been appropriated, designated, encumbered, or otherwise m ade available for payment by the State under this Agreement. Q. “Incident” means any accidental or deliberate event that results in or constitutes an imminent threat of the unauthorized access, loss, disclosure, modification, disruption, or destruction of any communications or information resources of the State, which are included as part of the Work, as described in §§24 -37.5-401, et. seq., C.R.S. Incidents include, without limitation (i) successful attempts to gain unauthorized access to a State system or State Records regardless of where such information is located; (ii) unwanted disruption or denial of service; (iii) the unauthorized use of a State system for the processing or storage of data; or (iv) changes to State system hardware, firmware, or software characteristics without the State’s knowledge, instruction, or consent. R. “Initial Term” means the time period defined in §2.B. S. “Master Agreement” means the FTA Master Agreement document incorporated by reference and made part of FTA’s standard terms and conditions governing the administration of a project supported with federal assistance awarded by FTA. T. “Matching Funds” (Local Funds, or Local Match) means the funds provided by Subrecipient as a match required to receive the Grant Funds and includes in -kind contribution. U. “Party” means the State or Subrecipient, and “Parties” means both the State and Subrecipient. V. “PII” means personally identifiable information including, without limitation, any information maintained by the State about an individual that can be used to distinguish or trace an individual’s identity, such as name, social security number, date and place of birth, mother’s maiden name, or biometric records. PII includes, but is not limited to, all information defined as personally identifiable information in §§24 -72-501 and 24- 73-101, C.R.S. W. “Recipient” means the State agency shown on the Signature and Cover Pages of this Agreement, for the purposes of this Federal Award. X. “Services” means the services to be performed by Subrecipient as set forth in this Agreement and shall include any services to be rendered by Subrecipient in connection with the Goods. Y. “State Confidential Information” means any and all State Records not subject to disclosure under CORA. State Confidential Information shall include but is not limited to PII and State personnel records not subject to disclosure under CORA. State Confidential Information shall not include information or data concerning individuals that is not deemed confidential but nevertheless belongs to the State, which has been communicated, furnished, or disclosed by the State to Subrecipient which (i) is subject to di sclosure pursuant to CORA; (ii) is already known to Subrecipient without restrictions at the time of its disclosure to Subrecipient; (iii) is or subsequently becomes publicly available without breach of any obligation owed by Subrecipient to the State; (iv) is disclosed to Subrecipient, without confidentiality obligations, by a third party DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 49 Contract Number: 23-HTR-ZL-00074/491003115 Page 6 of 45 Version 10/23/19 who has the right to disclose such information; or (v) was independently developed without reliance on any State Confidential Information. Z. “State Fiscal Rules” means the fiscal rules promulgated by the Colorado State Controller pursuant to §24 - 30-202(13)(a), C.R.S. AA. “State Fiscal Year” means a 12-month period beginning on July 1 of each calendar year and ending on June 30 of the following calendar year. If a single c alendar year follows the term, then it means the State Fiscal Year ending in that calendar year. BB. “State Records” means any and all State data, information, and records regardless of physical form. CC. “Subaward Maximum Amount” means an amount equal to the total of Grant Funds for this Agreement. DD. “Subcontractor” means any third party engaged by Subrecipient to aid in performance of the Work. “Subcontractor” also includes sub -recipients of Grant Funds. EE. “Subrecipient” means a non-Federal entity that receives a sub-award from a Recipient to carry out part of a Federal program but does not include an individual that is a beneficiary of such program. A Subrecipient may also be a recipient of other Federal Awards directly from a Federal Awarding Agency. For the purposes of this Agreement, Contractor is a Subrecipient. FF. “Uniform Guidance” means the Office of Management and Budget Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2 CFR Part 200, commonly known as the “Super Circular, which supersedes requirements from OMB Circulars A -21, A-87, A-110, A-122, A-89, A- 102, and A-133, and the guidance in Circular A-50 on Single Audit Act follow-up. GG. “Work” means the Goods delivered and Services performed pursuant to this Agreement. HH. “Work Product” means the tangible and intangible results of the Work, whether finished or unfinished, including drafts. Work Product includes, but is not limited to, documents, text, software (including source code), research, reports, proposals, specifications, plans, notes, studies, data, images, photographs, negatives, pictures, drawings, designs, models, surveys, maps, materials, ideas, concepts, know-how, information, and any other results of the Work. “Work Product” does not include any material that was developed prior to the Effective Date that is used, without modification, in the performance of the Work. Any other term used in this Agreement that is defined elsewhere in this Agreement or in an Exhibit shall be construed and interpreted as defined in that section. 4. STATEMENT OF WORK AND BUDGET Subrecipient shall complete the Work as described in this Agreement and in accordance with the provisions of Exhibit A. The State shall have no liability to compensate Subrecipient for the delivery of any goods or the performance of any services that are not specifically set forth in this Agreement. 5. PAYMENTS TO SUBRECIPIENT A. Subaward Maximum Amount Payments to Subrecipient are limited to the unpaid, obligated balance of the Grant Funds. The State shall not pay Subrecipient any amount under this Agreement that exceeds the Subaward Maximum Amount shown on the Cover Page of this Agreement as “Federal Funds Maximum Amount”. B. Payment Procedures i. Invoices and Payment a. The State shall pay Subrecipient in the amounts and in accordance with the schedule and other conditions set forth in Exhibit A. b. Subrecipient shall initiate payment requests by invoice to the State, in a form and manner approved by the State. c. The State shall pay each invoice within 45 days following the State’s receipt of that invoice, so long as the amount invoiced correctly represents Work completed by Subrecipient and previously accepted by the State during the term that the invoice covers. If the State determines that the amount of any invoice is not correct, then Subrecipient shall make all changes necessary to correct that invoice. d. The acceptance of an invoice shall not constitute acceptance of any Work performed or Deliverables provided under this Agreement. DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 50 Contract Number: 23-HTR-ZL-00074/491003115 Page 7 of 45 Version 10/23/19 ii. Interest Amounts not paid by the State within 45 days of the State’s acceptance of the invoice shall bear interest on the unpaid balance beginning on the 45th day at the rate of 1% per month, as required by §24-30- 202(24)(a), C.R.S., until paid in full; provided, however, that interest shall not accrue on unpaid amounts that the State disputes in writing. Subrecipient shall invoice the State separately for accrued interest on delinquent amounts, and the invoice shall reference the delinquent payment, the number of days’ interest to be paid and the interest rate. iii. Payment Disputes If Subrecipient disputes any calculation, determination or amount of any payment, Subrecipient shall notify the State in writing of its dispute within 30 days following the earlier to occur of Subrecipient’s receipt of the payment or notification of the determination or calculation of the payment by the State. The State will review the information presented by Subrecipient and may make changes to its determination based on this review. The calculation, determination or payment amount that results from the State’s review shall not be subject to additional dispute under this subsection. No payment subject to a dispute under this subsection shall be due until after the State has concluded its review, and the State shall not pay any interest on any amount during the period it is subject to dispute under this subsection. iv. Available Funds-Contingency-Termination The State is prohibited by law from making commitments beyond the term of the current State Fiscal Year. Payment to Subrecipient beyond the current State Fiscal Year is contingent on the appropriation and continuing availability of Grant Funds in any subsequent year (as provided in the Colorado Special Provisions). If federal funds or funds from any other non-State funds constitute all or some of the Grant Funds, the State’s obligation to pay Subrecipient shall be contingent upon such non-State funding continuing to be made available for payment. Payments to be made pursuant to this Agreement shall be made only from Grant Funds, and the State’s liability for such payments shall be limited to the amount remaining of such Grant Funds. If State, federal or other funds are not appropriated, or otherwise become unavailable to fund this Agreement, the State may, upon written notice, terminate this Agreement, in whole or in part, without incurring further liability. The State shall, however, remain obligated to pay for Services and Goods that are delivered and accepted prior to the effective date of notice of termination, and this termination shall otherwise be treated as if this Agreement were terminated in the public interest as described in §2.E. v. Federal Recovery The close-out of a Federal Award does not affect the right of the Federal Awarding Agency or the State to disallow costs and recover funds on the basis of a later audit or other review. Any cost disallowance recovery is to be made within the Record Retention Period, as defined below. C. Matching Funds Subrecipient shall provide Matching Funds as provided in Exhibit A. Subrecipient shall have raised the full amount of Matching Funds prior to the Effective Date and shall report to the State regarding the status of such funds upon request. Subrecipient’s obligation to pay all or any part of any Matching Funds, whether direct or contingent, only extends to funds duly and lawfully appropriated for the purposes of this Agreement by the authorized representatives of Subrecipient and paid into Subrecipient’s treasury or bank account. Subrecipient represents to the State that the amount designated “Subrecipient’s Matching Funds” in Exhibit A has been legally appropriated for the purposes of this Agreement by its authorized representatives and paid into its treasury or bank account. Subrecipient does not by this Agreement irrevocably pledge present cash reserves for payments in future fiscal years, and this Agreement is not intended to create a multiple -fiscal year debt of Subrecipient. Subrecipient shall not pay or be liable for any claimed interest, late charges, fees, taxes or penalties of any nature, except as required by Subrecipient’s laws or policies. D. Reimbursement of Subrecipient Costs i. The State shall reimburse Subrecipient for the federal share of properly documented allowable costs related to the Work after review and approval thereof, subject to the provisions of §5, this Agreement, and Exhibit A. However, any costs incurred by Subrecipient prior to the Effective Date shall not be reimbursed absent specific allowance of pre-award costs and indication that the Federal Award funding is retroactive. The State shall pay Subrecipient for costs or expenses incurred or performance by the Subrecipient prior to the Effective Date, only if (1) the Grant Funds invol ve federal funding and (2) federal laws, rules, and regulations applicable to the Work provide for such retroactive payments to the DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 51 Contract Number: 23-HTR-ZL-00074/491003115 Page 8 of 45 Version 10/23/19 Subrecipient. Any such retroactive payments shall comply with State Fiscal Rules and be made in accordance with the provisions of this Agreement. ii. The State shall reimburse Subrecipient’s allowable costs, not exceeding the Subaward Maximum Amount shown on the Cover Page of this Agreement and on Exhibit A for all allowable costs described in this Agreement and shown in Exhibit A, except that Subrecipient may adjust the amounts between each line item of Exhibit A without formal modification to this Agreement as long as the Subrecipient provides notice to the State of the change, the change does not modify the Subaward Maximum Amount or the Subaward Maximum Amount for any federal fiscal year or State Fiscal Year, and the change does not modify any requirements of the Work. iii. The State shall only reimburse allowable costs described in this Agreement and shown in the Budget if those costs are: a. Reasonable and necessary to accomplish the Work and for the Goods and Services provided; and b. Equal to the actual net cost to Subrecipient (i.e. the price paid minus any items of value received by Subrecipient that reduce the cost actually incurred). iv. Subrecipient’s costs for Work performed after the Fund Expenditure End Date shown on the Cover Page for this Agreement, or after any phase performance period end date for a respective phase of the Work, shall not be reimbursable. Subrecipient shall initiate any payment request by submitting invoices to the State in the form and manner set forth and approved by the State . E. Close-Out Subrecipient shall close out this Award within 45 days after the Fund Expenditure End Date shown on the Cover Page for this Agreement. To complete close-out, Subrecipient shall submit to the State all Deliverables (including documentation) as defined in this Agreement and Subrecipient’s final reimbursement request or invoice. The State will withhold 5% of allowable costs until all final documentation has been submitted and accepted by the State as substantially complete. If the Federal Awarding Agency has not closed this Federal Award within one year and 90 days after the Fund Expenditure End Date shown on the Cover Page for this Agreement due to Subrecipient’s failure to submit required documentation, then Subrecipient may be prohibited from applying for new Federal Awards through the State until such documentation is submitted and accepted. 6. REPORTING - NOTIFICATION A. Quarterly Reports In addition to any reports required pursuant to any other Exhibit, for any Agreement having a term longer than three months, Subrecipient shall submit, on a quarterly basis, a written 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 to the State not later than five Business Days following the end of each calendar quar ter or at such time as otherwise specified by the State. B. Litigation Reporting If Subrecipient is served with a pleading or other document in connection with an action before a court or other administrative decision making body, and such pleading or document relates to this Agreement or may affect Subrecipient’s ability to perform its obligations under this Agreement, Subrecipient shall, within 10 days after being served, notify the State of such action and deliver copies of such pleading or document to the State’s Principal Representative identified on the Cover Page for this Agreement. C. Performance and Final Status Subrecipient shall submit all financial, performance and other reports to the State no later than 45 calendar days after the end of the Initial Term if no Extension Terms are exercised, or the final Extension Term exercised by the State, containing an evaluation and review of Subrecipient’s performance and the final status of Subrecipient’s obligations hereunder. D. Violations Reporting Subrecipient shall disclose, in a timely manner, in writing to the State and the Federal Awarding Agency, all violations of federal or State criminal law involving fraud, bribery, or gratuity violations potentially affecting the Federal Award. The State or the Federal Awarding Agency may impose any penalties for noncompliance DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 52 Contract Number: 23-HTR-ZL-00074/491003115 Page 9 of 45 Version 10/23/19 allowed under 2 CFR Part 180 and 31 U.S.C. 3321, which may include, without limitation, suspension or debarment. 7. SUBRECIPIENT RECORDS A. Maintenance Subrecipient shall make, keep, maintain, and allow inspection and monitoring by the State of a complete file of all records, documents, communications, notes and other written materials, electronic media files, and communications, pertaining in any manner to the Work and the delivery of Service s (including, but not limited to the operation of programs) or Goods hereunder (collectively, the “Subrecipient Records”). Subrecipient shall maintain such records for a period of three years following the date of submission to the State of the final expenditure report, or if this Award is renewed quarterly or annually, from the date of the submission of each quarterly or annual report, respectively (the “Record Retention Period”). If any litigation, claim, or audit related to this Award starts before expir ation 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 agenc y for audit, oversight or indirect costs, and the State, may notify Subrecipient in writing that the Record Retention Period shall be extended. For records for real property and equipment, the Record Retention Period shall extend three years following final disposition of such property. B. Inspection Subrecipient shall permit the State, the federal government, and any other duly authorized agent of a governmental agency to audit, inspect, examine, excerpt, copy and transcribe Subrecipient Records during the Record Retention Period. Subrecipient shall make Subrecipient Records available during normal business hours at Subrecipient’s office or place of business, or at other mutually agreed upon times or locations, upon no fewer than two Business Days’ notice from the State, unless the State determines that a shorter period of notice, or no notice, is necessary to protect the interests of the State. C. Monitoring The State, the federal government, and any other duly authorized agent of a governmental agency, i n its discretion, may monitor Subrecipient’s performance of its obligations under this Agreement using procedures as determined by the State or that governmental entity. Subrecipient shall allow the State to perform all monitoring required by the Uniform Guidance, based on the State’s risk analysis of Subrecipient and this Agreement. The State shall have the right, in its sole discretion, to change its monitoring procedures and requirements at any time during the term of this Agreement. The State shall monitor Subrecipient’s performance in a manner that does not unduly interfere with Subrecipient’s performance of the Work. D. Final Audit Report Subrecipient shall promptly submit to the State a copy of any final audit report of an audit performed on Subrecipient’s records that relates to or affects this Agreement or the Work, whether the audit is conducted by Subrecipient or a third party. Additionally, if Subrecipient is required to perform a single audit under 2 CFR 200.501, et. seq., then Subrecipient shall submit a copy of the results of that audit to the State within the same timelines as the submission to the federal government. 8. CONFIDENTIAL INFORMATION - STATE RECORDS A. Confidentiality Subrecipient shall keep confidential, and cause all Subcontractors to keep confidential, all State Records, unless those State Records are publicly available. Subrecipient shall not, without prior written approval of the State, use, publish, copy, disclose to any third party, or permit the use by any third party of any State Records, except as otherwise stated in this Agreement, permitted by law or approved in writing by the State. Subrecipient shall provide for the security of all State Confidential Information in accordance with all applicable laws, rules, policies, publications, and guidelines. Subrecipient shall immediately forward any request or demand for State Records to the State’s Principal Representative identified on the Cover Page of the Agreement. B. Other Entity Access and Nondisclosure Agreements Subrecipient may provide State Records to its agents, employees, assigns and Subcontractors as necessary to perform the Work, but shall restrict access to State Confidential Information to those agents, employees, assigns and Subcontractors who require access to perform their obligations under this Agreement. DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 53 Contract Number: 23-HTR-ZL-00074/491003115 Page 10 of 45 Version 10/23/19 Subrecipient shall ensure all such agents, employees, assigns, and Subcontractors sign agreements containing nondisclosure provisions at least as protective as those in this Agreement, and that the nondisclosure provisions are in force at all times the agent, employee, assign or Subcontractor has access to any State Confidential Information. Subrecipient shall provide copies of those signed nondisclosure provisions to the State upon execution of the nondisclosure provisions if requested by the State. C. Use, Security, and Retention Subrecipient shall use, hold and maintain State Confidential Information in compliance with any and all applicable laws and regulations only in facilities located within the United States, and shall maintain a secure environment that ensures confidentiality of all State Confidential Information. Subrecipient shall provide the State with access, subject to Subrecipient’s reasonable security requirements, for purposes of inspecting and monitoring access and use of State Confidential Information and evaluating security control effectiveness. Upon the expiration or termination of this Agreement, Subrecipient shall return State Records provided to Subrecipient or destroy such State Records and certify to the State that it has done so, as directed by the State. If Subrecipient is prevented by law or regulation from returning or destroying State Confidential Information, Subrecipient warrants it will guarantee the confidentiality of, and cease to use, such State Confidential Information. D. Incident Notice and Remediation If Subrecipient becomes aware of any Incident, Subrecipient shall notify the State immediately and cooperate with the State regarding recovery, remediation, and the necessity to involve law enforcement, as determined by the State. Unless Subrecipient can establish that Subrecipient and its agents, employees, and Subcontractors are not the cause or source of the Incident, Subrecipient shall be responsible for the cost of notifying each person who may have been impacted by the Incident. After an Incident, Subrecipient shall take steps to reduce the risk of incurring a similar type of Incident in the future as directed by the State, which may include, but is not limited to, developing and implementing a remediation plan that is approved by the State at no additional cost to the State. The State may adjust or direct modifications to this plan, in its sole discretion and Subrecipient shall make all modifications as directed by the State. If Subrecipient cannot produce its analysis and plan within the allotted time, the State, in its sole discretion, may perform such analysis and produce a remediation plan, and Subrecipient shall reimburse the State for the reasonable costs thereof. The State may, in its sole discretion and at Subrecipient’s sole expense, require Subrecipient to engage the services of an independent, qualified, State-approved third party to conduct a security audit. Subrecipient shall provide the State with the results of such audit and evidence of Subrecipient’s planned remediation in response to any negative findings. E. Data Protection and Handling Subrecipient shall ensure that all State Records and Work Product in the possession of Subrecipient or any Subcontractors are protected and handled in accordance with the requirements of this Agreement, including the requirements of any Exhibits hereto, at all times. As used in this section, the protections afforded Work Product only apply to Work Product that requires confidential treatment. F. Safeguarding PII If Subrecipient or any of its Subcontractors will o r may receive PII under this Agreement, Subrecipient shall provide for the security of such PII, in a manner and form acceptable to the State, including, without limitation, State non-disclosure requirements, use of appropriate technology, security practic es, computer access security, data access security, data storage encryption, data transmission encryption, security inspections, and audits. Subrecipient shall be a “Third -Party Service Provider” as defined in §24-73- 103(1)(i), C.R.S., and shall maintain security procedures and practices consistent with §§24-73-101 et seq., C.R.S. 9. CONFLICTS OF INTEREST A. Actual Conflicts of Interest Subrecipient shall not engage in any business or activities or maintain any relationships that conflict in any way with the full performance of the obligations of Subrecipient under this Agreement. Such a conflict of interest would arise when a Subrecipient or Subcontractor’s employee, officer or agent were to offer or provide any tangible personal benefit to an employee of the State, or any member of his or her immediate family or his or her partner, related to the award of, entry into or management or oversight of this Agreement. DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 54 Contract Number: 23-HTR-ZL-00074/491003115 Page 11 of 45 Version 10/23/19 B. Apparent Conflicts of Interest Subrecipient acknowledges that, with respect to this Agreement, even the appearance of a conflict of interest shall be harmful to the State’s interests. Absent the State’s prior written approval, Subrecipient shall refrain from any practices, activities or relationships that reasonably appear to be in conflict with th e full performance of Subrecipient’s obligations under this Agreement. C. Disclosure to the State If a conflict or the appearance of a conflict arises, or if Subrecipient is uncertain whether a conflict or the appearance of a conflict has arisen, Subrecipient shall submit to the State a disclosure statement setting forth the relevant details for the State’s consideration. Failure to promptly submit a disclosure statement or to follow the State’s direction in regard to the actual or apparent conflict constitutes a breach of this Agreement. D. Subrecipient acknowledges that all State employees are subject to the ethical principles described in §24-18- 105, C.R.S. Subrecipient further acknowledges that State employees may be subject to the requirements of §24-18-105, C.R.S., with regard to this Agreement. For the avoidance of doubt, an actual or apparent conflict of interest shall exist if Subrecipient employs or contracts with any State employee, any former State employee within six months following such emplo yee’s termination of employment with the State, or any immediate family member of such current or former State employee. Subrecipient shall provide a disclosure statement as described in §9.C. no later than ten days following entry into a contractual or employment relationship as described in this section. Failure to timely submit a disclosure statement shall constitute a Breach of Agreement. Subrecipient may also be subject to such penalties as are allowed by law. 10. INSURANCE Subrecipient shall obtain and maintain, and ensure that each Subcontractor shall obtain and maintain, insurance as specified in this section at all times during the term of this Agreement. All insurance policies required by this Agreement that are not provided through self-insurance shall be issued by insurance companies as approved by the State. A. Workers’ Compensation Workers’ compensation insurance as required by state statute, and employers’ liability insurance covering all Subrecipient or Subcontractor employees acting within the course and scope of their employment. B. General Liability Commercial general liability insurance covering premises operations, fire damage, independent contractors, products and completed operations, blanket contractual liability, personal injury, and advertising liability with minimum limits as follows: i. $1,000,000 each occurrence; ii. $1,000,000 general aggregate; iii. $1,000,000 products and completed operations aggregate; and iv. $50,000 any 1 fire. C. Automobile Liability Automobile liability insurance covering any auto (including owned, hired and non -owned autos) with a minimum limit of $1,000,000 each accident combined single limit. D. Additional Insured The State shall be named as additional insured on all commercial general liability policies (leases and construction contracts require additional insured coverage for completed operations) required of Subrecipient and Subcontractors. E. Primacy of Coverage Coverage required of Subrecipient and each Subcontractor shall be primary over any insurance or self- insurance program carried by Subrecipient or the State. F. Cancellation All insurance policies shall include provisions preventing cancellation or non-renewal, except for cancellation based on non-payment of premiums, without at least 30 days prior notice to Subrecipient and DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 55 Contract Number: 23-HTR-ZL-00074/491003115 Page 12 of 45 Version 10/23/19 Subrecipient shall forward such notice to the State in accordance with §14 within seven days of Subrecipient’s receipt of such notice. G. Subrogation Waiver All insurance policies secured or maintained by Subrecipient or its Subcontractors in relation to this Agreement shall include clauses stating that each carrier shall waive all rights of recovery under subrogation or otherwise against Subrecipient or the State, its agencies, institutions, organizations, officers, agents, employees, and volunteers. H. Public Entities If Subrecipient is a "public entity" within the meaning of the Colorado Governmental Immunity Act, §24 - 10-101, et seq., C.R.S. (the “GIA”), Subrecipient shall maintain, in lieu of the liability insurance requirements stated above, at all times during the term of this Agreement such liability insurance, by commercial policy or self-insurance, as is necessary to meet its liabilities under the GIA. If a Subcontractor is a public entity within the meaning of the GIA, Subrecipient shall ensure that the Subcontractor maintain at all times during the terms of this Subrecipient, in lieu of the liability insurance requirements stated above, such liability insurance, by commercial policy or self-insurance, as is necessary to meet the Subcontractor’s obligations under the GIA. I. Certificates For each insurance plan provided by Subrecipient under this Agreement, Subrecipient shall provide to the State certificates evidencing Subrecipient’s insurance coverage required in this Agreement prior to the Effective Date. Subrecipient shall provide to the State certificates evidencing Subcontractor insurance coverage required under this Agreement prior to the Effective Date, except that, if Subrecipient’s subcontract is not in effect as of the Effective Date, Subrecipient shall provide to the S tate certificates showing Subcontractor insurance coverage required under this Agreement within seven Business Days following Subrecipient’s execution of the subcontract. No later than 15 days before the expiration date of Subrecipient’s or any Subcontractor’s coverage, Subrecipient shall deliver to the State certificates of insurance evidencing renewals of coverage. At any other time during the term of this Agreement, upon request by the State, Subrecipient shall, within seven Business Days following the request by the State, supply to the State evidence satisfactory to the State of compliance with the provisions of this section. 11. BREACH OF AGREEMENT In the event of a Breach of Agreement, the aggrieved Party shall give written notice of breach to the other Party. If the notified Party does not cure the Breach of Agreement, at its sole expense, within 30 days after the delivery of written notice, the Party may exercise any of the remedies as described in §12 for that Party. Notwithstanding any provision of this Agreement to the contrary, the State, in its discretion, need not provide notice or a cure period and may immediately terminate this Agreement in whole or in part or institute any other remedy in this Agreement in order to protect the public interest of the State; or if Subrecipient is debarred or suspended under §24-109-105, C.R.S., the State, in its discretion, need not provide notice or cure period and may terminate this Agreement in whole or in part or institute any other remedy in this Agreement as of the date that the debarment or suspension takes effect. 12. REMEDIES A. State’s Remedies If Subrecipient is in breach under any provision of this Agreement and fails to cure such breach, the State, following the notice and cure period set forth in §11, shall have all of the remedies listed in this section in addition to all other remedies set forth in this Agreement or at law. The State may exercise any or all of the remedies available to it, in its discretion, concurrently or consecutively. i. Termination for Breach of Agreement In the event of Subrecipient’s uncured breach, the State may terminate this entire Agreement or any part of this Agreement. Additionally, if Subrecipient fails to comply with any terms of the Federal Award, then the State may, in its discretion or at the direction of a Federal Awarding Agency, terminate this entire Agreement or any part of this Agreement. Subrecipient shall continue performance of this Agreement to the extent not terminated, if any. DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 56 Contract Number: 23-HTR-ZL-00074/491003115 Page 13 of 45 Version 10/23/19 a. Obligations and Rights To the extent specified in any termination notice, Subrecipient 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, Subrecipient shall complete and deliver to the State all Work not cancelled by the termination notice, and may incur obligations as necessary to do so within this Agreement’s terms. At the request of the State, Subrecipient shall assign to the State all of Subrecipient’s rights, title, and interest in and to such terminated orders or subcontracts. Upon termination, Subrecipient shall take timely, reasonable and necessary action to protect and preserve property in the possession of Subrecipient but in which the State has an interest. At the State’s request, Subrecipient shall return materials owned by the State in Subrecipient’s possession at the time of any termination. Subrecipient shall deliver all completed Work Product and all Work Product that was in the process of completion to the State at the State’s request. b. Payments Notwithstanding anything to the contrary, the State shall only pay Subrecipient for accepted Work received as of the date of termination. If, after termination by the State, the State agrees that Subrecipient was not in breach or that Subrecipient’s action or inaction was excusable, such termination shall be treated as a termination in the public interest , and the rights and obligations of the Parties shall be as if this Agreement had been terminated in the public interest under §2.E. c. Damages and Withholding Notwithstanding any other remedial action by the State, Subrecipient shall remain liable to the State for any damages sustained by the State in connection with any breach by Subrecipient, and the State may withhold payment to Subrecipient for the purpose of mitigating the State’s damages until such time as the exact amount of damages due to the State from Subrecipient is determined. The State may withhold any amount that may be due Subrecipient as the State deems necessary to protect the State against loss including, without limitation, loss as a result of outstanding liens and excess costs incurred by the State in procuring from third parties replacement Work as cover. ii. Remedies Not Involving Termination The State, in its discretion, may exercise one or more of the following additional remedies: a. Suspend Performance Suspend Subrecipient’s performance with respect to all or any portion of the Work pending corrective action as specified by the State without entitling Subrecipient to an adjustment in price or cost or an adjustment in the performance schedule. Subrecipient shall promptly cease performing Work and incurring costs in accordance with the State’s directive, and the State shall not be liable for costs incurred by Subrecipient after the suspension of performance. b. Withhold Payment Withhold payment to Subrecipient until Subrecipient corrects its Work. c. Deny Payment Deny payment for Work not performed, or that due to Subrecipient’s actions or inactions, cannot be performed or if they were performed are reasonably of no value to the state ; provided, that any denial of payment shall be equal to the value of the obligations not performed. d. Removal Demand immediate removal of any of Subrecipient’s employees, agents, or Subcontractors from the Work whom the State deems incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable or whose continued relation to this Agreement is deemed by the State to be contrary to the public interest or the State’s best interest. e. Intellectual Property If any Work infringes, or if the State in its sole discretion determines that any Work is likely to infringe, a patent, copyright, trademark, trade secret or other intellectual property right, Subrecipient shall, as approved by the State (i) secure that right to use such Work for the State and Subrecipient; DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 57 Contract Number: 23-HTR-ZL-00074/491003115 Page 14 of 45 Version 10/23/19 (ii) replace the Work with noninfringing Work or modify the Work so that it becomes noninfringing; or, (iii) remove any infringing Work and refund the amount paid for such Work to the State. B. Subrecipient’s Remedies If the State is in breach of any provision of this Agreement and does not cure such breach, Subrecipient, following the notice and cure period in §11 and the dispute resolution process in §13 shall have all remedies available at law and equity. 13. DISPUTE RESOLUTION A. Initial Resolution Except as herein specifically provided otherwise, disputes concerning the performance of this Agreement which cannot be resolved by the designated Agreement representatives shall be referred in writing to a senior departmental management staff member designated by the State and a senior manager designated by Subrecipient for resolution. B. Resolution of Controversies If the initial resolution described in §13.A fails to resolve the dispute within 10 Business Days, Subrecipient shall submit any alleged breach of this Agreement by the State to the Procurement Official of the State Agency named on the Cover Page of this Agreement as described in §24-101-301(30), C.R.S., for resolution following the same resolution of controversies process as described in §§24 -106-109, and 24-109-101.1 through 24-109-505, C.R.S., (collectively, the “Resolution Statutes”), except that if Subrecipient wishes to challenge any decision rendered by the Procurement Official, Subrecipient’s challenge shall be an appeal to the executive director of the Department of Personnel and Administration, or their delegate, in the same manner as described in the Resolution Statutes before Subrecipient pursues any further action. Except as otherwise stated in this Section, all 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. 15. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION A. Work Product Subrecipient agrees to provide to the State a royalty-free, non-exclusive and irrevocable license to reproduce publish or otherwise use and to authorize others to use the Work Product described herein, for the Federal Awarding Agency’s and State’s purposes. All Work Product shall be delivered to the State by Subrecipient upon completion or termination hereof. B. Exclusive Property of the State Except to the extent specifically provided elsewhere in this Agreement, all State Records, documents, text, software (including source code), research, reports, proposals, specifications, plans, notes, studies, data, images, photographs, negatives, pictures, drawings, designs, models, surveys, maps, materials, ideas, concepts, know-how, and information provided by or on behalf of the State to Subrecipient are the exclusive property of the State (collectively, “State Materials”). Subrecipient shall not use, willingly allow, cause or permit Work Product or State Materials to be used for any purpose other than the performance of Subrecipient’s obligations in this Agreement without the prior written consent of the State. Upon termination DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 58 Contract Number: 23-HTR-ZL-00074/491003115 Page 15 of 45 Version 10/23/19 of this Agreement for any reason, Subrecipient shall provide all Work Product and State Materials to the State in a form and manner as directed by the State. C. Exclusive Property of Subrecipient Subrecipient retains the exclusive rights, title, and ownership to any and all pre -existing materials owned or licensed to Subrecipient including, but not limited to, all pre-existing software, licensed products, associated source code, machine code, text images, audio and/or video, and third -party materials, delivered by Subrecipient under this Agreement, whether incorporated in a Deliverable or necessary to use a Deliverable (collectively, “Subrecipient Property”). Subrecipient Property shall be licensed to the State as set forth in this Agreement or a State approved license agreement: (i) entered into as exhibits to this Agreement, (ii) obtained by the State from the applicable third-party vendor, or (iii) in the case of open source software, the license terms set forth in the applicable open source license agreement. 16. GENERAL PROVISIONS A. Assignment Subrecipient’s rights and obligations under this Agreement are personal and may not be transferred or assigned without the prior, written consent of the State. Any attempt at assignment or transfer without such consent shall be void. Any assignment or transfer of Subrecipient’s rights and obligations approved by the State shall be subject to the provisions of this Agreement. B. Subcontracts Subrecipient shall not enter into any subaward or subcontract in connection with its obligations under this Agreement without the prior, written approval of the State. Subrecipient shall submit to the State a copy of each such subaward or subcontract upon request by the State. All subawards and subcontracts entered into by Subrecipient in connection with this Agreement shall comply with all applicable federal and state laws and regulations, shall provide that they are governed by the laws of the State of Colorado, and shall be subject to all provisions of this Agreement. If the entity with whom Subrecipient enters into a subcontract or subaward would also be considered a Subrecipient, then the subcontract or subaward entered into by Subrecipient shall also contain provisions permitting both Subrecipient and the State to perform all monitoring of that Subcontractor in accordance with the Uniform Guidance. C. Binding Effect Except as otherwise provided in §16.A, all provisions of this Agreement, including the benefits and burdens, shall extend to and be binding upon the Parties’ respective successors and assigns. D. Authority Each Party represents and warrants to the other that the execution and delivery of this Agreement and the performance of such Party’s obligations have been duly authorized. E. Captions and References The captions and headings in this Agreement are for convenience of reference only, and shall not be used to interpret, define, or limit its provisions. All references in this Agreement to sections (whether spelled out or using the § symbol), subsections, exhibits or other attachments, are references to sections, subsections, exhibits or other attachments contained herein or incorporated as a part hereof, unless otherwise noted. F. Counterparts This Agreement may be executed in multiple, identical, original counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. G. Entire Understanding This Agreement represents the complete integration of all understandings between the Parties related to the Work, and all prior representations and understandings related to the Work, oral or written, are merged into this Agreement. Prior or contemporaneous additions, deletions, or other changes to this Agreement shall not have any force or effect whatsoever, unless embodied herein. H. Digital Signatures If any signatory signs this Agreement using a digital signature in accordance with the Colorado State Controller Contract, Grant and Purchase Order Policies regarding the use of digital signatures issued under the State Fiscal Rules, then any agreement or consent to use digital signatures within the electronic system through which that signatory signed shall be incorporated into this Agreement by reference. DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 59 Contract Number: 23-HTR-ZL-00074/491003115 Page 16 of 45 Version 10/23/19 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 Subrecipient’s or a Subcontractor’s website or any provision incorporated into any click-through or online agreements related to the Work unless that provision is specifically referenced in this Agreement. L. Severability The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect, provided that the Parties can continue to perform their obligations under this Agreement in accordance with the intent of this Agreement. M. Survival of Certain Agreement Terms Any provision of this Agreement that imposes an obligation on a Party after termination or expiration of this Agreement shall survive the termination or expiration of this Agreement and shall be enforceable by the other Party. N. Taxes The State is exempt from federal excise taxes under I.R.C. Chapter 32 (26 U.S.C., Subtitle D, Ch. 32) (Federal Excise Tax Exemption Certificate of Registry No. 84-730123K) and from State and local government sales and use taxes under §§39-26-704(1), et seq., C.R.S. (Colorado Sales Tax Exemption Identification Number 98-02565). The State shall not be liable for the payment of any excise, sales, or use taxes, regardless of whether any political subdivision of the State imposes such taxes on Subrecipient. Subrecipient shall be solely responsible for any exemptions from the collection of excise, sales or use taxes that Subrecipient may wish to have in place in connection with this Agreement. O. Third Party Beneficiaries Except for the Parties’ respective successors and assigns described in §16.A, this Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than the Parties. Enforcement of this Agreement and all rights and obligations hereunder are reserved solely to the Parties. Any services or benefits which third parties receive as a result of this Agreement are incidental to this Agreement, and do not create any rights for such third parties. P. Waiver A Party’s failure or delay in exercising any right, power, or privilege under this Agreement, whether explicit or by lack of enforcement, shall not operate as a waiver, nor shall any single or partial exercise of any right, power, or privilege preclude any other or further exercise of such right, power, or privilege. Q. CORA Disclosure To the extent not prohibited by federal law, this Agreement and the performance measures and standards required under §24-106-107, C.R.S., if any, are subject to public release through the CORA. R. Standard and Manner of Performance Subrecipient shall perform its obligations under this Agreement in accordance with the highest standards of care, skill and diligence in Subrecipient’s industry, trade, or profession. S. Licenses, Permits, and Other Authorizations i. Subrecipient shall secure, prior to the Effective Date, and maintain at all times during the term of this Agreement, at its sole expense, all licenses, certifications, permits, and other authorizations required to perform its obligations under this Agreement, and shall ensure that all employees, agents and Subcontractors secure and maintain at all times during the term of their employment, agency or DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 60 Contract Number: 23-HTR-ZL-00074/491003115 Page 17 of 45 Version 10/23/19 Subcontractor, all license, certifications, permits and other authorizations required to perform their obligations in relation to this Agreement. ii. Subrecipient, if a foreign corporation or other foreign entity transacting business in the State of Colorado, shall obtain prior to the Effective Date and maintain at all times during the term of this Agreement, at its sole expense, a certificate of authority to transact business in the State of Colorado and designate a registered agent in Colorado to accept service of process. T. Federal Provisions Subrecipient shall comply with all applicable requirements of Exhibits C and D at all times during the term of this Agreement. 17. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3) These Special Provisions apply to all agreements except where noted in italics. A. STATUTORY APPROVAL. §24-30-202(1), C.R.S. This Agreement shall not be valid until it has been approved by the Colorado State Controller or designee. If this Agreement is for a Major Information Technology Project, as defined in §24 -37.5-102(2.6), C.R.S., then this Agreement shall not be valid until it has been approved by the State’s Chief Information Officer or designee. B. FUND AVAILABILITY. §24-30-202(5.5), C.R.S. Financial obligations of the State payable after the current State Fiscal Year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available . C. GOVERNMENTAL IMMUNITY. Liability for claims for injuries to persons or property arising from the negligence of the State, its departments, boards, commissions committees, bureaus, offices, employees and officials shall be controlled and limited by the provisions of the Colorado Governmental Immunity Act, §24-10-101, et seq., C.R.S.; the Federal Tort Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b), and the State’s risk management statutes, §§24-30-1501, et seq. C.R.S. No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, contained in these statutes. D. INDEPENDENT CONTRACTOR. Subrecipient shall perform its duties hereunder as an independent contractor and no t as an employee. Neither Subrecipient nor any agent or employee of Subrecipient shall be deemed to be an agent or employee of the State. Subrecipient shall not have authorization, express or implied, to bind the State to any agreement, liability or understanding, except as expressly set forth herein. Subrecipient and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise provide such coverage for Subrecipient or any of its agents or employees. Subrecipient shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this Agreement. Subrecipient shall (i) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (ii) provide proof thereof when requested by the State, and (iii) be solely responsible for its acts and those of its employees and agents. E. COMPLIANCE WITH LAW. Subrecipient shall comply with all applicable federal and State laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices. F. CHOICE OF LAW, JURISDICTION, AND VENUE. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Agreement. Any provision included or incorporated herein by reference which conflicts with said laws, rules, and regulations shall be null and void. All suits or actions related to this Agreement shall be filed and proceedings held in the State of Colorado and exclusive venue shall be in the City and County of Denver. DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 61 Contract Number: 23-HTR-ZL-00074/491003115 Page 18 of 45 Version 10/23/19 G. PROHIBITED TERMS. Any term included in this Agreement that requires the State to indemnify or hold Subrecipient harmless; requires the State to agree to binding arbitration; limits Subrecipient’s liability for damages resulting from death, bodily injury, or damage to tangib le property; or that conflicts with this provision in any way shall be void ab initio. Nothing in this Agreement shall be construed as a waiver of any provision of §24 -106-109, C.R.S. H. SOFTWARE PIRACY PROHIBITION. State or other public funds payable under this Agreement shall not be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. Subrecipient hereby certifies and warrants that, during the term of this Agreement and any extensions, Subrecipient has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that Subrecipient is in violation of this provision, the State may exercise any remedy available at law or in equity or under this Agreement, including, without limitation, immediate termination of this Agreement and any remedy consistent with federal copyright laws or applicable licensing restrictions. I. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. §§24-18-201 and 24-50-507, C.R.S. The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this Agreement. Subrecipient has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of Subrecipient’s services and Subrecipient shall not employ any person having such known interests. J. VENDOR OFFSET AND ERRONEOUS PAYMENTS. §§24-30-202(1) and 24-30-202.4, C.R.S. [Not applicable to intergovernmental agreements] Subject to §24-30-202.4(3.5), C.R.S., the State Controller may withhold payment under the State’s vendor offset intercept system for debts owed to State agencies for: (i) unpaid child support debts or child support arrearages; (ii) unpaid balances of tax, accrued interest, or other charges specified in §§39-21-101, et seq., C.R.S.; (iii) unpaid loans due to the Student Loan Division of the Department of Higher Education; (iv) amounts required to be paid to the Unemployment Compensation Fund; and (v) other unpaid debts owing to the State as a result of final agency determination or judicial action. The State may also recover, at the State’s discretion, payments made to Subrecipient in error for any reason, including, but not limited to, overpayments or improper payments, and unexpended or excess funds received by Subrecipient by deduction from subsequent payments under this Agreement, deduction from any payment due under any other contracts, grants or agreements between the State and Subrecipient, or by any other appropriate method for collecting debts owed to the State. K. PUBLIC CONTRACTS FOR SERVICES. §§8-17.5-101, et seq., C.R.S. [Not applicable to agreements relating to the offer, issuance, or sale of securities, investment advisory services or fund management services, sponsored projects, intergovernmental agreements, or information technology services or products and services] Subrecipient certifies, warrants, and agrees that it does not knowingly employ or contract with an illegal alien who will perform work under this Agreement and will confirm the employment eligibility of all employees who are newly hired for e mployment in the United States to perform work under this Agreement, through participation in the E-Verify Program or the State verification program established pursuant to §8-17.5-102(5)(c), C.R.S., Subrecipient shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or enter into a contract with a Subcontractor that fails to certify to Subrecipient that the Subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. Subrecipient (i) shall not use E-Verify Program or the program procedures of the Colorado Department of Labor and Employment (“Department Program”) to undertake pre-employment screening of job applicants while this Agreement is being performed, (ii) shall notify the Subcontractor and the contracting State agency or institution of higher education within three days if Subrecipient has actual knowledge that a Subcontractor is employing or contracting with an illegal alien for work under this Agreement, (iii) shall terminate the subcontract if a Subcontractor does not stop employing or contracting with the illegal alien within three days of receiving the notice, and (iv) shall comply with reasonable requests made in the course of an investigation, undertaken pursuant to §8-17.5-102(5), C.R.S., by the Colorado Department of Labor and Employment. If Subrecipient participates in the Department program, Subrecipient shall deliver to the contracting State agency, Institution of Higher Education or political subdivision, a written, notarized affirmation, affirming that Subrecipient has examined the legal work status of such employee, and shall comply with all of the other requirements of the DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 62 Contract Number: 23-HTR-ZL-00074/491003115 Page 19 of 45 Version 10/23/19 Department program. If Subrecipient fails to comply with any requirement of this provision or §§8-17.5-101, et seq., C.R.S., the contracting State agency, institution of higher education or political subdivision may terminate this Agreement for breach and, if so terminated, Subrecipient shall be liable for damages. L. PUBLIC CONTRACTS WITH NATURAL PERSONS. §§24-76.5-101, et seq., C.R.S. Subrecipient, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that Subrecipient (i) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (ii) shall comply with the provisions of §§24 -76.5-101, et seq., C.R.S., and (iii) has produced one form of identification required by §24-76.5-103, C.R.S., prior to the Effective Date of this Agreement. DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 63 Contract Number: 23-HTR-ZL-00074/491003115 Page 20 of 45 Version 10/23/19 EXHIBIT A, STATEMENT OF WORK AND BUDGET Project Description* 2023FTA 5311_Operating_ Vail Federal Awarding Agency Federal Transit Administration (FTA) Federal Regional Contact Cindy Terwilliger Federal Award Date To Be Determined Project End Date June 30, 2024 FAIN To Be Determined CFDA# 20.509 CFDA Title Formula Grants for Rural Areas Program Subrecipient Vail, Town of UEID # R17RS3JCQZ68 Contact Name Chris Southwick Vendor # 2000003 Address 75 South Frontage Road Vail, CO 81657-5096 Phone # (970) 479-2159 Email csouthwick@vailgov.com Indirect Rate N/A Total Project Budget $458,548.00 Budget WBS** ALI Federal Funds Local Funds Total Operating 22-11-4042.VAIL.600 30.09.01 50% $229,274.00 50% $229,274.00 $458,548.00 Total Project Amount Encumbered via this Subaward Agreement $458,548.00 * This is not a research and development grant. **The WBS numbers may be replaced without changing the amount of the subaward at CDOT’s discretion. ***FAIN and Date of Federal Award is not available at time execution of contract. This information will reside in DTRs official Transit/Rail Grants system and will be available upon request. A. Project Description Town of Vail shall maintain the existence of public transportation services through the following goals: 1. Enhance access to health care, education, employment, public services, recreation, social transactions, and other basic needs; 2. Assist in the maintenance, development, improvement and use of public transportation in their Transportation Planning Region (TPR); 3. Encourage and facilitate the most efficient use of all transportation funds used to provide passenger transportation in their TPR through the coordination of programs and services; and 4. Encourage mobility management, employment-related transportation alternatives, joint development practices, and transit-oriented development. This funding is provided to support the services described above for January 1 st, 2023 – June 30th, 2024. B. Performance Standards 1. Project Milestones Milestone Description Original Estimated Completion Date Submit Reimbursement Request in COTRAMS Monthly Submit Progress Reports to GU Manager Quarterly DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 64 Contract Number: 23-HTR-ZL-00074/491003115 Page 21 of 45 Version 10/23/19 Submit Final Reimbursement Request in COTRAMS 9/1/2024 IMPORTANT NOTE: All milestones in this Statement of Work (except for the final reimbursement request) must be completed no later than the expiration date of this Subaward Agreement: June 30, 2024. 2. Performance will be reviewed throughout the duration of this Subaward 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 proble ms will be resolved; and/or d. Expected impacts and the efforts to recover from delays. 3. Town of Vail will report on performance using the Program Measure Report in COTRAMS: a. Performance measures established for the FTA Section 5311 Program (Funds Expended, Fare Revenues, Sources of Expended Funds, Service Data, and Volunteer Resources) will be tracked and reported on by Town of Vail. 4. Performance will be reviewed based on: a. Completion of quarterly 5311 Program Measure Reports in COTRAMS, and b. Completion of the annual National Transit Database (NTD) Report. 5. 5311 Program Measure Reports will be submitted in COTRAMS by Town of Vail on or before the following due dates: a. Quarter 1 due April 28th; b. Quarter 2 due July 28th; c. Quarter 3 due October 28th; and d. Annual Report, including Quarter 4, due January 28th. 6. Town of Vail will assist CDOT with Disadvantaged Business Enterprise (DBE) reporting to FTA by using the biannual FTA DBE Report in COTRAMS to report: a. Contracts awarded, payments made, and contracts completed between Town of Vail and prime contractors; and b. Contracts awarded, payments made, and contracts completed between Town of Vail’s prime contractors and their subcontractors. 7. DBE Program Measure Reports will be submitted in COTRAMS by Town of Vail on or before the following due dates: a. Quarter 4 – Quarter 1 (for October 1 – March 31) due April 28th; and b. Quarter 2 – Quarter 3 (for April 1 – September 30) due October 28th. C. Project Budget 1. The Total Project Budget is $458,548.00. CDOT will pay no more than 50% of the eligible, actual operating costs, up to the maximum amount of $229,274.00. CDOT will retain any remaining balance of the federal share of FTA-5311 Funds. Town of Vail shall be solely responsible for all costs incurred in the project in excess of the amount paid by CDOT from Federal Funds for the federal share of eligible, actual costs. For CDOT accounting purposes, the Federal Funds of $229,274.00 (50%) for operating costs, and matching Local Funds $229,274.00 (50%) for operating costs, will be encumbered for this Subaward Agreement. 2. No refund or reduction of the amount of Town of Vail’s share to be provided will be allowed unless there is at the same time a refund or reduction of the federal share of a proportionate amount. 3. Town of Vail may use eligible federal funds for the Local Funds share, but those funds cannot be from other Federal Department of Transportation (DOT) programs. Town of Vail’s share, together with the Federal Funds share, must be enough to ensure payment of Total Project Budget. DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 65 Contract Number: 23-HTR-ZL-00074/491003115 Page 22 of 45 Version 10/23/19 4. Per the terms of this Subaward Agreement, CDOT shall have no obligation to provide state funds for use on this project. CDOT will administer Federal Funds for this Project under the terms of this Subaward Agreement, provided that the federal share of FTA funds to be administered by CDOT are made available and remain available. 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. D. Allowable Costs 1. 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; FTA C 5010.1E Chapter VI : Financial Management; Master Agreement, Section 6 “Non-Federal Share;” and 2 CFR 200.102. Other applicable requirements for cost allowability not cited previously, shall also be c onsidered. 2. Town of Vail’s operating expenses are those costs directly related to system operations. Town of Vail at a minimum, should consider the following items as operating expenses: fuel, oil, drivers and dispatcher salaries and fringe benefits, and licenses. 3. If Town of Vail elects to take administrative assistance, eligible costs may include but are not limited to: general administrative expenses (e.g., salaries of the project director, secretary, and bookkeeper); marketing expenses; insurance premiums or payments to a self-insurance reserve; office supplies; facilities and equipment rental; standard overhead rates; and the costs of administering drug and alcohol testing. Additionally, administrative costs for promoting and coordinating ridesharing are eligible as project administration if the activity is part of a coordinated public transportation program. E. Reimbursement Eligibility 1. Town of Vail must submit invoice(s) monthly via COTRAMS. Reimbursement will apply only to eligible expenses that are incurred within the period of performance (January 1st 2023 – June 30th 2024) of this Subaward Agreement. 2. Reimbursement requests must be within the limits of Section D., Allowable Costs, of this Subaward Agreement. Town of Vail will be reimbursed based on the ratio of Federal Funds share and Local Funds share set forth in the Project Budget above. 3. Town of Vail must submit the final invoice within sixty (60) calendar days of June 30, 2024, and submit a Grant Closeout and Liquidation (GCL) Form in COTRAMS within fifteen (15) days of issuance of the final reimbursement payment. F. 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. In particular, Town of Vail shall ensure that driving personnel are provided professional training in defensive driving and training on the handling of mobility devices and transporting older adults and people with disabilities. G. Restrictions on Lobbying Town of Vail is certifying that it complies with 2 CFR 200.450 by entering into this Subaward Agreement. H. Special Conditions 1. Town of Vail will comply with all requirements imposed by CDOT on Town of Vail so that the federal award is used in accordance with federal statutes, regulations, and the terms and conditions of the federal award. DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 66 Contract Number: 23-HTR-ZL-00074/491003115 Page 23 of 45 Version 10/23/19 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. Record retention shall adhere to the requirements outlined in 2 CFR 200.334 and FTA C 5010.1E. 4. Town of Vail cannot request reimbursement for costs on this project from more than one Federal Awarding Agency or other federal awards (i.e., no duplicate billing). 5. Town of Vail must obtain prior CDOT approval, in writing, if FTA funds are intended to be used for payment of a lease or for third-party contracts. 6. If receiving FTA 5311 funding, Town of Vail shall advertise its fixed route and/or rural based service as available to the general public and service will not be explicitly limited by trip purpose or client type. 7. If receiving FTA 5311 funding, Town of Vail shall maintain and report annually all information required by NTD and any other financial, fleet, or service data. 8. If receiving FTA 5311 or 5339 funding, Town of Vail will ensure subcontractors and subrecipients comply with FTA Drug and Alcohol Regulations. 9. Town of Vail will comply with the Federal Transit Administration (FTA) Drug and Alcohol Regulations, to include on time submission to FTA’s Drug and Alcohol Management Information System (DAMIS). 10. 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 of race, color, national origin, sex, age or disability in accordance with Title VI of the Civil Rights Act of 1964. 11. 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 FTA Subrecipient s” in CDOT’s Title VI Program Plan and Federal Transit Administration Circular 4702.1B, “Title VI Requirements and Guidelines for FTA Recipients.” The Party shall also facilitate FTA’s compliance with Executive Order 12898 and DOT Order 5610.2(a) by incorp orating 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.” 12. Town of Vail will provide transportation services to persons with disabilities in accordance with the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq. 13. 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, FTA Circular 4710.1, and any additional requirements established by CDOT for FTA Subrecipients. 14. 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. 15. Town of Vail shall agree to produce and maintain documentation that supports compliance with the Americans with Disabilities Act to CDOT upon request. 16. Town of Vail shall update its Agency Profile in COTRAMS with any alterations to existing construction or any new construction in accordance with FTA Circular 4710.1. 17. If applicable, Town of Vail will adopt a Transit Asset Mana gement Plan that complies with regulations implementing 49 U.S.C. § 5326(d). DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 67 Contract Number: 23-HTR-ZL-00074/491003115 Page 24 of 45 Version 10/23/19 18. Town of Vail shall include nondiscrimination language and the Disadvantaged Business Enterprise (DBE) assurance in all contracts and solicitations in accordance with DBE regulatio ns, 49 CFR part 26 and CDOT’s DBE program. 19. Meal delivery must not conflict with providing public transportation service or reduce service to public transportation passengers. DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 68 Contract Number: 23-HTR-ZL-00074/491003115 Page 25 of 45 Version 10/23/19 EXHIBIT B, SAMPLE OPTION LETTER State Agency Department of Transportation Option Letter Number Insert the Option Number (e.g. "1" for the first option) Subrecipient Insert Subrecipient's Full Legal Name, including "Inc.", "LLC", etc... Original Agreement Number Insert CMS number or Other Contract Number of the Original Contract Subaward Agreement Amount Federal Funds Option Agreement Number Insert CMS number or Other Contract Number of this Option Maximum Amount (%) $0.00 Local Funds Agreement Performance Beginning Date The later of the Effective Date or Month, Day, Year Local Match Amount (%) $0.00 Agreement Total $0.00 Current Agreement Expiration Date Month, Day, Year 1. OPTIONS: A. Option to extend for an Extension Term or End of Term Extension. 2. REQUIRED PROVISIONS: A. For use with Option 1(A): In accordance with Section(s) 2.B/2.C of the Original Agreement referenced above, the State hereby exercises its option for an additional term/end of term extension, beginning Insert start date and ending on the current agreement expiration date shown above, at the rates stated in the Original Agreement, as amended. B. For use with Options 1(A): The Subaward Agreement Amount table on the Agreement’s Cover Page is hereby deleted and replaced with the Current Subaward Agreement Amount table shown above. 3. OPTION EFFECTIVE DATE: A. The effective date of this Option Letter is upon approval of the State Controller or ____, whichever is later. STATE OF COLORADO Jared S. Polis, Governor Department of Transportation Shoshana M. Lew, Executive Director By:_______________________ Name:________________________ Title:__________________________ Date: _________________________ In accordance with §24-30-202, C.R.S., this Option Letter is not valid until signed and dated below by the State Controller or an authorized delegate. STATE CONTROLLER Robert Jaros, CPA, MBA, JD By:_______________________________________ Department of Transportation Option Letter Effective Date: __________________ DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 69 Contract Number: 23-HTR-ZL-00074/491003115 Page 26 of 45 Version 10/23/19 EXHIBIT C, FEDERAL PROVISIONS 1. APPLICABILITY OF PRO VISIONS 1.1. The Contract to which these Federal Provisions are attached has been funded, in whole or in part, with an Award of Federal funds. In the event of a conflict between the provisions of these Federal Provisions, the Special Provisions, the body of the Contract, or any attachments or exhibits incorporated into and made a part of the Contract, the provisions of these Federal Provisions shall control. 2. DEFINITIONS 2.1. For the purposes of these Federal Provisions, the following terms shall have the meanings ascribed to them below. 2.1.1. “Award” means an award of Federal financial assistance, and the Contract setting forth the terms and conditions of that financial assistance, that a non-Federal Entity receives or administers. 2.1.1.1. Awards may be in the form of: 2.1.1.1.1. Grants; 2.1.1.1.2. Contracts; 2.1.1.1.3. Cooperative agreements, which do not include cooperative research and development agreements (CRDA) pursuant to the Federal Technology Transfer Act of 1986, as amended (15 U.S.C. 3710); 2.1.1.1.4. Loans; 2.1.1.1.5. Loan Guarantees; 2.1.1.1.6. Subsidies; 2.1.1.1.7. Insurance; 2.1.1.1.8. Food commodities; 2.1.1.1.9. Direct appropriations; 2.1.1.1.10. Assessed and voluntary contributions; and 2.1.2.1.11. Other financial assistance transactions that authorize the expenditure of Federal funds by non-Federal Entities. 2.1.1.1.12. Any other items specified by OMB in policy memoranda available at the OMB website or other source posted by the OMB. 2.1.1.2. Award does not include: 2.1.1.2.1. Technical assistance, which provides services in lieu of money; 2.1.1.2.2. A transfer of title to Federally-owned property provided in lieu of money; even if the award is called a grant; 2.1.1.2.3. Any award classified for security purposes; or 2.1.1.2.4. Any award funded in whole or in part with Recovery funds, as defined in section 1512 of the American Recovery and Reinvestment Act (ARRA) of 2009 (Public Law 111 -5). 2.1.2. “Contract” means the Agreement or Subaward Agreement to which these Federal Provisions are attached and includes all Award types in §2.1.1.1 of this Exhibit. 2.1.3. “Contractor” means the party or parties to a Contract or Subaward Agreement funded, in whole or in part, with Federal financial assistance, other than the Prime Recipient, and includes Subrecipients and borrowers. For purposes of Transparency Act reporting, Contractor does not include Vendors. 2.1.4. “Data Universal Numbering System (DUNS) Number” means the nine-digit number established and assigned by Dun and Bradstreet, Inc. to uniquely identify a business entity. Dun and Bradstreet’s website may be found at: http://fedgov.dnb.com/webform. 2.1.5. “Entity” means all of the following as defined at 2 CFR part 25, subpart C; DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 70 Contract Number: 23-HTR-ZL-00074/491003115 Page 27 of 45 Version 10/23/19 2.1.5.1. A governmental organization, which is a State, local government, or Indian Tribe; 2.1.5.2. A foreign public entity; 2.1.5.3. A domestic or foreign non-profit organization; 2.1.5.4. A domestic or foreign for-profit organization; and 2.1.5.5. A Federal agency, but only a Subrecipient under an Award or Sub award to a non-Federal entity. 2.1.6. “Executive” means an officer, managing partner or any other employee in a management position. 2.1.7. “Federal Award Identification Number (FAIN)” means an Award number assigned by a Federal agency to a Prime Recipient. 2.1.8. “Federal Awarding Agency” means a Federal agency providing a Federal Award to a Recipient as described in 2 CFR §200.37 2.1.9. “FFATA” means the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109-282), as amended by §6202 of Public Law 110 -252. FFATA, as amended, also is referred to as the “Transparency Act.” 2.1.10. “Federal Provisions” means these Federal Provisions subject to the Transparency Act and Uniform Guidance, as may be revised pursuant to ongoing guidance from the relevant Federal or State of Colorado agency or institutions of higher education. 2.1.11. “OMB” means the Executive Office of the President, Office of Management and Budget. 2.1.12. “Prime Recipient” means a Colorado State agency or institution of higher education that receives an Award. 2.1.13. “Subaward” means an award by a Recipient to a Subrecipient funded in whole or in part by a Federal Award. The terms and conditions of the Federal Award flow down to the Award unless the terms and conditions of the Federal Award specifically indicate otherwise in accordance with 2 CFR §200.38. The term does not include payments to a contractor or payments to an individual that is a beneficiary of a Federal program. 2.1.14. “Subrecipient” means a non-Federal Entity (or a Federal agency under an Awar d or Subaward to a non-Federal Entity) receiving Federal funds through a Prime Recipient to support the performance of the Federal project or program for which the Federal funds were awarded. A Subrecipient is subject to the terms and conditions of the Federal Award to the Prime Recipient, including program compliance requirements. The term “Subrecipient” includes and may be referred to as Subrecipient. The term does not include an individual who is a beneficiary of a federal program. 2.1.15. “Subrecipient Parent DUNS Number” means the sub recipient parent organization’s 9 -digit Data Universal Numbering System (DUNS) number that appears in the sub recipient’s System for Award Management (SAM) profile, if applicable. 2.1.16. “System for Award Management (SAM)” means the Federal repository into which an Entity must enter the information required under the Transparency Act, which may be found at http://www.sam.gov. 2.1.17. “Total Compensation” means the cash and noncash dollar value earned by an Executive durin g the Prime Recipient’s or Subrecipient’s preceding fiscal year and includes the following: 2.1.17.1. Salary and bonus; 2.1.17.2. Awards of stock, stock options, and stock appreciation rights, using the dollar amount recognized for financial statement reporting purposes with respect to the fiscal year in accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2005) (FAS 123R), Shared Based Payments; 2.1.17.3. Earnings for services under non-equity incentive plans, not including group life, health, hospitalization or medical reimbursement plans that do not discriminate in favor of Executives and are available generally to all salaried employees; 2.1.17.4. Change in present value of defined benefit and actuarial pension plans; 2.1.17.5. Above-market earnings on deferred compensation which is not tax-qualified; DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 71 Contract Number: 23-HTR-ZL-00074/491003115 Page 28 of 45 Version 10/23/19 2.1.17.6. Other compensation, if the aggregate value of all such other compensation (e.g. severance, termination payments, value of life insurance paid on behalf of the employee , perquisites or property) for the Executive exceeds $10,000. 2.1.18. “Transparency Act” means the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109-282), as amended by §6202 of Public Law 110-252. The Transparency Act also is referred to as FFATA. 2.1.19. “Uniform Guidance” means the Office of Management and Budget Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, which supersedes requirements from OMB Circulars A-21, A-87, A-110, and A-122, OMB Circulars A-89, A-102, and A-133, and the guidance in Circular A-50 on Single Audit Act follow-up. The terms and conditions of the Uniform Guidance flow down to Awards to Subrecipients unless the Uniform Guidance or the terms and conditions of the Federal Award specifically indicate otherwise. 2.1.20. “Vendor” means a dealer, distributor, merchant or other seller providing property or services required for a project or program funded by an Award. A Vendor is not a Prime Recipient or a Subrecipient and is not subject to the terms and conditions of the Federal award. Program compliance requirements do not pass through to a Vendor. 3. COMPLIANCE 3.1. Contractor shall comply with all applicable provisions of the Transparency Act, all applicable provisions of the Uniform Guidance, and the regulations issued pursuant thereto, including but not limited to these Federal Provisions. Any revisions to such provisions or regulations shall automatically become a part of these Federal Provisions, without the necessity of either party executing any further instrument. The State of Colorado may provide written notification to Contractor of such revisions, but such notice shall not be a condition precedent to the effectiveness of such revisions. 4. SYSTEM FOR AWARD MANAGEMENT (SAM) AND DATA UNIVERSAL NUMBERING SYSTEM (DUNS) REQUIREMENTS 4.1. SAM. Contractor shall maintain the currency of its information in SAM until the Contractor submits the final financial report required under the Award or receives final payment, whichever is later. Contractor shall review and update SAM information at least annually after the initial registration, and more frequently if required by changes in its information. 4.2. DUNS. Contractor shall provide its DUNS number to its Prime Recipient, and shall update Contractor’s information in Dun & Bradstreet, Inc. at least annually after the initial registration, and more frequently if required by changes in Contractor’s information. 5. TOTAL COMPENSATION 5.1. Contractor shall include Total Compensation in SAM for each of its five most highly compensated Executives for the preceding fiscal year if: 5.1.1. The total Federal funding authorized to date under the Award is $25,000 or more; and 5.1.2. In the preceding fiscal year, Contractor received: 5.1.2.1. 80% or more of its annual gross revenues from Federal procurement contracts and subcontracts and/or Federal financial assistance Awards or Sub awards subject to the Transparency Act; and 5.1.2.2. $25,000,000 or more in annual gross revenues from Federal procurement contracts and subcontracts and/or Federal financial assistance Awards or Sub awards subject to the Transparency Act; and 5.1.3. The public does not have access to information about the compensation of such Executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d) or § 6104 of the Internal Revenue Code of 1986. 6. REPORTING 6.1. Contractor shall report data elements to SAM and to the Prime Recipient as required in this Exhibit if Contractor is a Subrecipient for the Award pursuant to the Transparency Act. No direct payment shall be made to Contractor for providing any reports required under these Federal Provisions and the cost of producing such reports shall be included in the Contract price. The reporting requirements in this Exhibit DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 72 Contract Number: 23-HTR-ZL-00074/491003115 Page 29 of 45 Version 10/23/19 are based on guidance from the US Office of Management and Budget (OMB), and as such are subject to change at any time by OMB. Any such changes shall be automatically incorporated into this Contract and shall become part of Contractor’s obligations under this Contract. 7. EFFECTIVE DATE AND DOLLAR THRESHOLD FOR REPORTING 7.1. Reporting requirements in §8 below apply to new Awards as of October 1, 2010, if the initial award is $25,000 or more. If the initial Award is below $25,000 but subsequent Award modifications result in a total Award of $25,000 or more, the Award is subject to the reporting requirements as of the date the Award exceeds $25,000. If the initial Award is $25,000 or more, but funding is subsequently de - obligated such that the total award amount falls below $25,000, the Award shall continue to be subject to the reporting requirements. 7.2. The procurement standards in §9 below are applicable to new Awards made by Prime Recipient as of December 26, 2015. The standards set forth in §11 below are applicable to audits of fiscal years beginning on or after December 26, 2014 . 8. SUBRECIPIENT REPORTING REQUIREMENTS 8.1. If Contractor is a Subrecipient, Contractor shall report as set forth below. 8.1.1. To SAM. A Subrecipient shall register in SAM and report the following data elements in SAM for each Federal Award Identification Number no later than the end of the month following the month in which the Sub award was made: 8.1.1.1. Subrecipient DUNS Number; 8.1.1.2. Subrecipient DUNS Number + 4 if more than one electronic funds transfer (EFT) account; 8.1.1.3. Subrecipient Parent DUNS Number; 8.1.1.4. Subrecipient’s address, including: Street Address, City, State, Country, Zip + 4, and Congressional District; 8.1.1.5. Subrecipient’s top 5 most highly compensated Executives if the criteria in §4 above are met; and 8.1.1.6. Subrecipient’s Total Compensation of top 5 most highly compensated Executives if criteri a in §4 above met. 8.1.2. To Prime Recipient. A Subrecipient shall report to its Prime Recipient, upon the effective date of the Agreement, the following data elements: 8.1.2.1. Subrecipient’s DUNS Number as registered in SAM. 8.1.2.2. Primary Place of Performance Information, including: Street Address, City, State, Country, Zip code + 4, and Congressional District. 9. PROCUREMENT STANDARDS 9.1. Procurement Procedures. A Subrecipient shall use its own documented procurement procedures which reflect applicable State, local, and Tribal laws and regulations, provided that the procurements conform to applicable Federal law and the standards identified in the Uniform Guidance, including without limitation, §§200.318 through 200.326 thereof. 9.2. Procurement of Recovered Materials. If a Subrecipient is a State Agency or an agency of a political subdivision of the State, its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines. DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 73 Contract Number: 23-HTR-ZL-00074/491003115 Page 30 of 45 Version 10/23/19 10. ACCESS TO RECORDS 10.1. A Subrecipient shall permit Recipient and auditors to have access to Sub recipient’s records and financial statements as necessary for Recipient to meet the requirements of §200.331 (Requirements for pass - through entities), §§200.300 (Statutory and national policy requirements) through 200.309 (Period of performance), and Subpart F-Audit Requirements of the Uniform Guidance. 2 CFR §200.331(a)(5). 11. SINGLE AUDIT REQUIREMENTS 11.1. If a Subrecipient expends $750,000 or more in Federal Awards during the Subrecipient’s fiscal year, the Subrecipient shall procure or arrange for a single or program-specific audit conducted for that year in accordance with the provisions of Subpart F-Audit Requirements of the Uniform Guidance, issued pursuant to the Single Audit Act Amendments of 1996, (31 U.S.C. 7501-7507). 2 CFR §200.501. 11.1.1. Election. A Subrecipient shall have a single audit conducted in accordance with Uniform Guidance §200.514 (Scope of audit), except when it elects to have a program -specific audit conducted in accordance with §200.507 (Program-specific audits). The Subrecipient may elect to have a program-specific audit if Subrecipient expends Federal Awards under only one Federal program (excluding research and development) and the Federal program's statutes, regulations, or the terms and conditions of the Federal award do not requir e a financial statement audit of Prime Recipient. A program-specific audit may not be elected for research and development unless all of the Federal Awards expended were received from Recipient and Recipient approves in advance a program - specific audit. 11.1.2. Exemption. If a Subrecipient expends less than $750,000 in Federal Awards during its fiscal year, the Subrecipient shall be exempt from Federal audit requirements for that year, except as noted in 2 CFR §200.503 (Relation to other audit requirements), but records shall be available for review or audit by appropriate officials of the Federal agency, the State, and the Government Accountability Office. 11.1.3. Subrecipient Compliance Responsibility. A Subrecipient shall procure or otherwise arrange for the audit required by Part F of the Uniform Guidance and ensure it is properly performed and submitted when due in accordance with the Uniform Guidance. Subrecipient shall prepare appropriate financial statements, including the schedule of expenditure s of Federal awards in accordance with Uniform Guidance §200.510 (Financial statements) and provide the auditor with access to personnel, accounts, books, records, supporting documentation, and other information as needed for the auditor to perform the aud it required by Uniform Guidance Part F-Audit Requirements. 12. CONTRACT PROVISIONS FOR SUBRECIPIENT CONTRACTS 12.1. If Contractor is a Subrecipient, then it shall comply with and shall include all of the following applicable provisions in all subcontracts entered into by it pursuant to this Agreement. 12.1.1. Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of “federally assisted construction contract” in 41 CFR Part 60 - 1.3 shall include the equal opportunity clause provided under 41 CFR 60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 CFR Part, 1964 - 1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Ord er 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 CFR part 60, “Office of Federal Contract Compliance Programs, Equal Employment Op portunity, Department of Labor. 12.1.1.1. During the performance of this contract, the contractor agrees as follows: 12.1.1.1.1. Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 74 Contract Number: 23-HTR-ZL-00074/491003115 Page 31 of 45 Version 10/23/19 for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause. 12.1.1.1.2. Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. 12.1.1.1.3. Contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 12.1.1.1.4. Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant or ders of the Secretary of Labor. 12.1.1.1.5. Contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. 12.1.1.1.6. In the event of Contractor's non-compliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be canceled, terminated or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. 12.1.1.1.7. Contractor will include the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States.” 12.1.2. Davis-Bacon Act. Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non- Federal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 3141- 3144, and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-Federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non -Federal entity must report all suspected or reported violations to the Federal awarding agency. The contracts must also include a provision for compliance with the Copeland “Anti -Kickback” Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in W hole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or Subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-Federal entity must report all suspected or reported violations to the Federal awarding agency. DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 75 Contract Number: 23-HTR-ZL-00074/491003115 Page 32 of 45 Version 10/23/19 12.1.3. Rights to Inventions Made Under a Contract or Contract. If the Federal Award meets the definition of “funding Contract” under 37 CFR §401.2 (a) and Subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding Contract,” Subrecipient must comply with the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Contracts,” and any implementing regulations issued by the awarding agency. 12.1.4. Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251-1387), as amended. Contracts and subawards of amounts in excess of $150,000 must contain a provision that requires the non-Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401 -7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). 12.1.5. Debarment and Suspension (Executive Orders 12549 and 12689). A contract award (see 2 CFR 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR par t 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. 12.1.6. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier-to-tier up to the non-Federal award. 13. CERTIFICATIONS 13.1. Unless prohibited by Federal statutes or regulations, Recipient may require Subrecipient to submit certifications and representations required by Federal statutes or regulations on an annual basis. 2 CFR §200.208. Submission may be required more frequently if Subrecipient fails to meet a requirement of the Federal award. Subrecipient shall certify in writing to the State at the end of the Award that the project or activity was completed, or the level of effort was expended. 2 CFR §200.201(3). If the required level of activity or effort was not carried out, the amount of the Award must be adjusted . 14. EXEMPTIONS 14.1. These Federal Provisions do not apply to an individual who receives an Award as a natural pe rson, unrelated to any business or non-profit organization he or she may own or operate in his or her name. 14.2. A Contractor with gross income from all sources of less than $300,000 in the previous tax year is exempt from the requirements to report Subawards and the Total Compensation of its most highly compensated Executives. 14.3. There are no Transparency Act reporting requirements for Vendors. 15. EVENT OF DEFAULT 15.1. Failure to comply with these Federal Provisions shall constitute an event of default under the Contract and the State of Colorado may terminate the Contract upon 30 days prior written notice if the default remains uncured five calendar days following the termination of the 30 -day notice period. This remedy will be in addition to any other remedy available to the State of Colorado under the Contract, at law or in equity. DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 76 Contract Number: 23-HTR-ZL-00074/491003115 Page 33 of 45 Version 10/23/19 EXHIBIT D, REQUIRED FEDERAL CONTRACT/AGREEMENT CLAUSES Section 3(l) – No Federal government obligations to third-parties by use of a disclaimer No Federal/State Government Commitment or Liability to Third Parties. Except as the Federal Government or CDOT expressly consents in writing, the Subrecipient agrees that: (1) The Federal Government or CDOT does not and shall not have any commitment or liability related to the Underlying Agreement, to any Third party Participant at any tier, or to any other person or entity that is not a party (FTA, CDOT or the Subrecipient) to the underlying Agreement, and (2) Notwithstanding that the Federal Government or CDOT may have concurred in or approved any Solicitation or Third party Agreement at any tier that may affect the underlying Agreement, the Federal Government and CDOT does not and shall not have any commitment or liability to any Third Party Participant or other entity or person that is not a party (FTA, CDOT, or the Subrecipient) to the underlying Agreement. Section 4(f) – Program fraud and false or fraudulent statements and related acts False or Fraudulent Statements or Claims. (1) Civil Fraud. The Subrecipient acknowledges and agrees that: (a) Federal laws, regulations, and requirements apply to itself and its Agreement, including the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq., and U.S. DOT regulations, “Program Fraud Civil Remedies,” 49 CFR part 31. (b) By executing the Agreement, the Subrecipient certifies and affirms to the Federal Government the truthfulness and accuracy of any claim, statement, submission, certification, assurance, affirmation, or representation that the Subrecipient provides to the Federal Government and CDOT. (c) The Federal Government and CDOT may impose the penalties of the Program Fraud Civil Remedies Act of 1986, as amended, and other applicable penalties if the Subrecipient presents, submits, or makes available any false, fictitious, or fraudulent information. (2) Criminal Fraud. The Subrecipient acknowledges that 49 U.S.C. § 5323(l)(1) authorizes the Federal Government to impose the penalties under 18 U.S.C. § 1001 if the Subrecipient provides a false, fictitious, or fraudulent claim, statement, submission, certification, assurance, or representation in connection with a federal public transportation program under 49 U.S.C. chapter 53 or any other applicable federal law. Section 9. Record Retention and Access to Sites of Performance. (a) Types of Records. The Subrecipient agrees that it will retain, and will require its Third party Participants to retain, complete and readily accessible records related in whole or in part to the underlying Agreement, including, but not limited to, data, documents, reports, statistics, subagreements, leases, third party contracts, arrangements, other third party agreements of any type, and supporting materials related to those records. (b). Retention Period. The Subrecipient agrees to comply with the record retention requirements in the applicable U.S. OT Common Rule. Records pertaining to its Award, the accompanying underlyingAgreement, and any Amendments thereto must be retained from the day the underlying Agreement was signed by the authorized FTA (or State) official through the course of the Award, the accompanying Agreement, and any Amendments thereto until three years after the Subrecipient has submitted its last or final expenditure report, and other pending matters are closed. (c) Access to Recipient and Third party Participant Records. The Subrecipient agrees and assures that each Subrecipient, if any, will agree to: (1) Provide, and require its Third Party Participants at each tier to provide, sufficient access to inspect and audit records and information related to its Award, the accompanying Agreement, and any Amendments thereto to the U.S. Secretary of Transportation or the Secretary’s duly authorized representatives, to the Comptroller General of the United States, and the Comptroller General’s duly authorized representatives, and to the Subrecipient and each of its Subrecipients, (2) Permit those individuals listed above to inspect all work and materials related to its Award, and to audit any information related to its Award under the control of the Subrecipient or Third party Participant within books, records, accounts, or other locations, and (3) Otherwise comply with 49 U.S.C. § 5325(g), and federal access to records requirements as set forth in the applicable U.S. DOT Common Rules. (d) Access to the Sites of Performance. The Subrecipient agrees to permit, and to require its Third party Participants to permit, FTA and CDOT to have access to the sites of performance of its Award, the accompanying Agreement, and any Amendments thereto, and to make site visits as needed in compliance with State and the U.S. DOT Common Rules. (e) Closeout. Closeout of the Award does not alter the record retention or access re quirements of this section of the Master Agreement. DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 77 Contract Number: 23-HTR-ZL-00074/491003115 Page 34 of 45 Version 10/23/19 3(G) – Federal Changes Application of Federal, State, and Local Laws, Regulations, Requirements, and Guidance . The Subrecipient agrees to comply with all applicable federal requirements and federal guidance. All standards or limits are minimum requirements when those standards or limits are included in the Recipient’s Agreement or this Master Agreement. At the time the FTA Authorized Official (or CDOT) awards federal assistance to the Subrecipient in support of the Agreement, the federal requirements and guidance that apply then may be modified from time to time and will apply to the Subrecipient or the accompanying Agreement, except as FTA determines otherwise in writing. 12 – Civil Rights (c) Nondiscrimination – Title VI of the Civil Rights Act. The Subrecipient agrees to, and assures that each Third party Participant, will: (1) Prohibit discrimination on the basis of race, color, or national origin, (2) Comply with: (i) Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d et seq.; (ii) U.S. DOT regulations, “Nondiscrimination in Federally-Assisted Programs of the Department of Transportation – Effectuation of Title VI of the Civil Rights Act of 1964,” 49 CFR part 21; and (iii) Federal transit law, specifically 49 U.S.C. § 5332 ; and (3) Follow: (i) The most recent edition of FTA Circular 4702.1, “Title VI Requirements and Guidelines for Federal Transit Administration Recipients,” to the extent consistent with applicable federal laws, regulations, requirements, and guidance; (ii) U.S. DOJ, “Guidelines for the enforcement of Title VI, Civil Rights Act of 1964,” 28 CFR § 50.3; and (iii) All other applicable federal guidance that may be issued. (d) Equal Employment Opportunity. (1) Federal Requirements and Guidance. The Subrecipient agrees to, and assures that each Third Party Participant will prohibit discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin, and: (i) Comply with Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; (ii) Comply with Title I of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12101, et seq.; (iii) Facilitate compliance with Executive Order No. 11246, “Equal Employment Opportunity” September 24, 1965 (42 U.S.C. § 2000e note), as amended by any later Executive Order that amends or supersedes it in part and is applicable to federal assistance programs; (iv) Comply with federal transit law, specifically 49 U.S.C. § 5332, as provided in section 12 of th e Master Agreement; (v) FTA Circular 4704.1 “Equal Employment Opportunity (EEO) Requirements and Guidelines for Federal Transit Administration Recipients;” and (vi) Follow other federal guidance pertaining to EEO laws, regulations, and requirements . (2). Specifics. The Subrecipient agrees to, and assures that each Third Party Participant will: (i) Affirmative Action. Take affirmative action that includes, but is not limited to: (A) Recruitment advertising, recruitment, and employment; (B) Rates of pay and other forms of compensation; (C) Selection for training, including apprenticeship, and upgrading; and (D) Transfers, demotions, layoffs, and terminations; but (ii) Indian Tribe. Recognize that Title VII of the Civil Rights Act of 1964, as amended, exempts Indian Tribes under the definition of “Employer,” and (3) Equal Employment Opportunity Requirements for Construction Activities. Comply, when undertaking “construction” as recognized by the U.S. Department of Labor (U.S. DOL), with: (i) U.S. DOL regulations, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor,” 41 CFR chapter 60; and (ii) Executive Order No. 11246, “Equal Employment Opportunity in Federal Employment,” September 24, 1965, 42 U.S.C. § 2000e note, as amended by any later Executive Order that amends or supersedes it, referenced in 42 U.S.C. § 2000e note. (h) Nondiscrimination on the Basis of Disability. The Subrecipient agrees to comply with the following federal prohibitions against discrimination on the basis of disability: (1) Federal laws, including: DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 78 Contract Number: 23-HTR-ZL-00074/491003115 Page 35 of 45 Version 10/23/19 (i) Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, which prohibits discrimination on the basis of disability in the administration of federally assisted Programs, Projects, or activities; (ii) The Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. § 12101 et seq., which requires that accessible facilities and services be made available to individuals with disabilities: (A) For FTA Recipients generally, Titles I, II, and III of the ADA apply; but (B) For Indian Tribes, Titles II and III of the ADA apply, but Title I of the ADA does not apply because it exempts Indian Tribes from the definition of “employer;” (iii) The Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq., which requires that buildings and public accommodations be accessible to individuals with disabilities; (iv) Federal transit law, specifically 49 U.S.C. § 5332, which now includes disability as a prohibited basis for discrimination; and (v) Other applicable federal laws, regulations, and requirements pertaining to access for seniors or individuals with disabilities. (2) Federal regulations and guidance, including: (i) U.S. DOT regulations, “Transportation Services for Individuals with Disabilities (ADA),” 49 CFR part 37; (ii) U.S. DOT regulations, “Nondiscrimination on the Basis of Disability in Programs and Activities Receiving or Benefiting from Federal Financial Assistance,” 49 CFR part 27; (iii) Joint U.S. Architectural and Transportation Barriers Compliance Board (U.S. ATB CB) and U.S. DOT regulations, “Americans With Disabilities (ADA) Accessibility Specifications for Transportation Vehicles,” 36 CFR part 1192 and 49 CFR part 38; (iv) U.S. DOT regulations, “Transportation for Individuals with Disabilities: Passenger Vessels,” 49 CFR part 39; (v) U.S. DOJ regulations, “Nondiscrimination on the Basis of Disability in State and Local Government Services,” 28 CFR part 35; (vi) U.S. DOJ regulations, “Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities,” 28 CFR part 36; (vii) U.S. EEOC, “Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act,” 29 CFR part 1630; (viii) U.S. Federal Communications Commission regulations, “Telecommunications Relay Services and Related Customer Premises Equipment for Persons with Disabilities,” 47 CFR part 64, Subpart F; (ix) U.S. ATBCB regulations, “Electronic and Information Technology Accessibility Standards,” 36 CFR part 1194; (x) FTA regulations, “Transportation for Elderly and Handicapped Persons,” 49 CFR part 609; (x) FTA Circular 4710.1, “Americans with Disabilities Act: Guidance;” and (xi) Other applicable federal civil rights and nondiscrimination regulations and guidance. Incorporation of FTA Terms – 16.a. (a) Federal Laws, Regulations, Requirements, and Guidance. The Subrecipient agrees: (1) To comply with the requirements of 49 U.S.C. chapter 53 and other applicable federal laws, regulations, and requirements in effect now or later that affect its third party procurements; (2) To comply with the applicable U.S. DOT Common Rules; and (3) To follow the most recent edition and any revisions of FTA Circular 4220.1, “Third Party Contracting Guidance,” to the extent consistent with applicable federal laws, regulations, requirements, and guidance. Energy Conservation – 26.j (a) Energy Conservation. The Subrecipient agrees to, and assures that its Subrecipients, will comply with the mandatory energy standards and policies of its state energy conservation plans under the Energy Policy and Conservation Act, as amended, 42 U.S.C. § 6321 et seq., and perform an energy assessment for any building constructed, reconstructed, or modified with federal assistance required under FTA regulation s, “Requirements for Energy Assessments,” 49 CFR part 622, subpart C. Applicable to Awards exceeding $10,000 Section 11. Right of the Federal Government to Terminate. DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 79 Contract Number: 23-HTR-ZL-00074/491003115 Page 36 of 45 Version 10/23/19 (a) Justification. After providing written notice to the Subrecipient, the Subrecipient agrees that the Federal Government may suspend, suspend then terminate, or terminate all or any part of the federal assistance for the Award if: (1) The Subrecipient has failed to make reasonable progress implementing the Award; (2) The Federal Government determines that continuing to provide federal assistance to support the Award does not adequately serve the purposes of the law authorizing the Award; or (3) The Subrecipient has violated the terms of the Agreement, especially if that violation would endanger substantial performance of the Agreement. (b) Financial Implications. In general, termination of federal assistance for the Award will not invalidate obligations properly incurred before the termination date to the extent that the obligation s cannot be canceled. The Federal Government may recover the federal assistance it has provided for the Award, including the federal assistance for obligations properly incurred before the termination date, if it determines that the Subrecipient has misused its federal assistance by failing to make adequate progress, failing to make appropriate use of the Project property, or failing to comply with the Agreement, and require the Subrecipient to refund the entire amount or a lesser amount, as the Federal Government may determine including obligations properly incurred before the termination date. (c) Expiration of the Period of Performance. Except for a Full Funding Grant Agreement, expiration of any period of performance established for the Award does not, b y itself, constitute an expiration or termination of the Award; FTA may extend the period of performance to assure that each Formula Project or related activities and each Project or related activities funded with “no year” funds can receive FTA assistance to the extent FTA deems appropriate. Applicable to Awards exceeding $25,000 From Section 4. Ethics. (a) Debarment and Suspension. The Subrecipient agrees to the following: (1) It will comply with the following requirements of 2 CFR part 180, subpart C, as adopted and supplemented by U.S. DOT regulations at 2 CFR part 1200. (2) It will not enter into any “covered transaction” (as that phrase is defined at 2 CFR §§ 180.220 and 1200.220) with any Third Party Participant that is, or whose principal is, suspended, debarred, or otherwise excluded from participating in covered transactions, except as authorized by- (i) U.S. DOT regulations, “Nonprocurement Suspension and Debarment,” 2 CFR part 1200; (ii) U.S. OMB regulatory guidance, “Guidelines to Agencies on Government-wide Debarment and Suspension (Nonprocurement),” 2 CFR part 180; and (iii) Other applicable federal laws, regulations, or requirements regarding participation with debarred or suspended Subrecipients or Third Party Participants. (3) It will review the U.S. GSA “System for Award Management – Lists of Parties Excluded from Federal Procurement and Nonprocurement Programs,” if required by U.S. DOT regulations, 2 CFR part 1200. (4) It will that its Third Party Agreements contain provisions necessary to flow down these suspension and debarment provisions to all lower tier covered transactions. (5) If the Subrecipient suspends, debars, or takes any similar action against a Third Party Participant or individual, the Subrecipient will provide immediate written notice to the: (i) FTA Regional Counsel for the Region in which the Subrecipient is located or implements the underlying Agreement, (ii) FTA Headquarters Manager that administers the Grant or Cooperative Agreement, or (iii) FTA Chief Counsel. Applicable to Awards exceeding the simplified acquisition threshold ($100,000-see Note) Note: Applicable when tangible property or construction will be acquired Section 15. Preference for United States Products and Services. Except as the Federal Government determines otherwise in writing, the Subrecipient agrees to comply with FTA’s U.S. domestic preference requirements and follow federal guidance, including: Buy America. The domestic preference procurement requirements of 49 U.S.C. § 5323(j), and FTA regulations, “Buy America Requirements,” 49 CFR part 661, to the extent consistent with 49 U.S.C. § 5323(j). Section 39. Disputes, Breaches, Defaults, and Litigation. (a) FTA Interest. FTA has a vested interest in the settlement of any violation of federal law, regulation, or disagreement involving the Award, the accompanying underlying Agreement, and any Amendments thereto DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 80 Contract Number: 23-HTR-ZL-00074/491003115 Page 37 of 45 Version 10/23/19 including, but not limited to, a default, breach, major dispute, or litigation, and FTA reserves the right to concur in any settlement or compromise. (b) Notification to FTA; Flow Down Requirement. If a current or prospective legal matter that may affect the Federal Government emerges, the Subrecipient must promptly notify the FTA Chief Counseland FTA Regional Counsel for the Region in which the Subrecipient is located. The Subrecipient must include a similar notification requirement in its Third Party Agreements and must require each Third Party Participant to include an equivalent provision in its subagreements at every tier, for any agreement that is a “covered transaction” according to 2 C.F.R. §§ 180.220 and 1200.220. (1) The types of legal matters that require notification include, but are not limited to, a major dispute, breach, default, litigation, or naming the Federal Government as a party to litigation or a legal disagreement in any forum for any reason. (2) Matters that may affect the Federal Government include, but are not limited to, the Federal Government’s interests in the Award, the accompanying Underlying Agreement, and any Amendments thereto, or the Federal Government’s administration or enforcement of federal laws, regulations, and requirements. (3) Additional Notice to U.S. DOT Inspector General. The Subrecipient must promptly notify the U.S. DOT Inspector General in addition to the FTA Chief Counsel or Regional Counsel for the Region in which the Subrecipient is located, if the Subrecipient has knowledge of potential fraud, waste, or abuse occurring on a Project receiving assistance from FTA. The notification provision applies if a person has or may have submitted a false claim under the False Claims Act, 31 U.S.C. § 3729, et seq., or has or may have committed a criminal or civil violation of law pertaining to such matters as fraud, conflict of interest, bid rigging, misappropriation or embezzlement, bribery, gratuity, or similar misconduct involving federal assistance. This responsibility occurs whether the Project is subject to this Agreement or another agreement between the Subrecipient and FTA, or an agreement involving a principal, officer, employee, agent, or Third Party Participant of the Subrecipient. It also applies to subcontractors at any tier. Knowledge, as used in this paragraph, includes, but is not limited to, knowledge of a criminal or civil investigation by a Federal, state, or local law enforcement or other investigative agency, a criminal indictment or civil complaint, or probable cause that could support a criminal indictment, or any other credible information in the possession of the Subrecipient. In this paragraph, “promptly” means to refer information without delay and without change. This notification provision applies to all divisions of the Subrecipient, including divisions tasked with law enforcement or investigatory functions. (c) Federal Interest in Recovery. The Federal Government retains the right to a proportionate share of any proceeds recovered from any third party, based on the percentage of the federal share for the Agreement. Notwithstanding the preceding sentence, the Subrecipient may return all liquidated damages it receives to its Award Budget for its Agreement rather than return the federal share of those liquidated damages to the Federal Government, provided that the Subrecipient receives FTA’s prior written concurrence. (d) Enforcement. The Subrecipient must pursue its legal rights and remedies available under any third party agreement, or any federal, state, or local law or regulation. Applicable to Awards exceeding $100,000 by Statute From Section 4. Ethics. a. Lobbying Restrictions. The Subrecipient agrees that neither it nor any Third Party Participant will use federal assistance to influence any officer or employee of a federal agency, member of Congress or an employee of a member of Congress, or officer or employee of Congress on matters that involve the underlying Agreement, including any extension or modification, according to the following: (1) Laws, Regulations, Requirements, and Guidance. This includes: (i) The Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352, as amended; (ii) U.S. DOT regulations, “New Restrictions on Lobbying,” 49 CFR part 20, to the extent consistent with 31 U.S.C. § 1352, as amended; and (iii) Other applicable federal laws, regulations, requirements, and guidance prohibiting the use of federal assistance for any activity concerning legislation or appropriations designed to influence the U.S. Congress or a state legislature; and (2) Exception. If permitted by applicable federal law, regulations, requirements, or guidance, such lobbying activities described above may be undertaken through the Subrecipient’s or Subrecipient’s proper official channels. Section 26. Environmental Protections – Clean Air and Clean Water (d) Other Environmental Federal Laws. The Subrecipient agrees to comply or facilitate compliance, and assures that its Third Party Participants will comply or facilitate compliance, with all applicable federal laws, DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 81 Contract Number: 23-HTR-ZL-00074/491003115 Page 38 of 45 Version 10/23/19 regulations, and requirements, and will follow applicable guidance, including, but not limi ted to, the Clean Air Act, Clean Water Act, Wild and Scenic Rivers Act of 1968, Coastal Zone Management Act of 1972, the Endangered Species Act of 1973, Magnuson Stevens Fishery Conservation and Management Act, Resource Conservation and Recovery Act, Comprehensive Environmental Response, Compensation, and Liability Act, Executive Order No. 11990 relating to “Protection of Wetlands,” and Executive Order No. 11988, as amended, “Floodplain Management.” Applicable with the Transfer of Property or Persons Section 15. Preference for United States Products and Services. Except as the Federal Government determines otherwise in writing, the Subrecipient agrees to comply with FTA’s U.S. domestic preference requirements and follow federal guidance, including: (a) Buy America. The domestic preference procurement requirements of 49 U.S.C. § 5323(j), and FTA regulations, “Buy America Requirements,” 49 CFR part 661, to the extent consistent with 49 U.S.C. § 5323(j); (c) Cargo Preference. Preference – Use of United States-Flag Vessels. The shipping requirements of 46 U.S.C. § 55305, and U.S. Maritime Administration regulations, “Cargo Preference – U.S.-Flag Vessels,” 46 CFR part 381; and (d) Fly America. The air transportation requirements of Section 5 of the Internati onal Air Transportation Fair Competitive Practices Act of 1974, as amended, 49 U.S.C. § 40118, and U.S. General Services Administration (U.S. GSA) regulations, “Use of United States Flag Air Carriers,” 41 CFR §§ 301-10.131 – 301-10.143. Applicable to Construction Activities Section 24. Employee Protections. a. Awards Involving Construction. The Subrecipient agrees to comply and assures that each Third Party Participant will comply with all federal laws, regulations, and requirements providing protections for construction employees involved in each Project or related activities with federal assistance provided through the underlying Agreement, including the: (1) Prevailing Wage Requirements of: (i) Federal transit laws, specifically 49 U.S.C. § 5333(a), (FTA’s “Davis -Bacon Related Act”); (ii) The Davis-Bacon Act, 40 U.S.C. §§ 3141 – 3144, 3146, and 3147; and (iii) U.S. DOL regulations, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction (also Labor Standards Provisions Applicable to Nonconstruction Contracts Subject to the Contract Work Hours and Safety Standards Act),” 29 CFR part 5. (2) Wage and Hour Requirements of: (i) Section 102 of the Contract Work Hours and Safety Standards Act, as amended, 40 U.S.C. § 3702, and other relevant parts of that Act, 40 U.S.C. § 3701 et seq.; and (ii) U.S. DOL regulations, “Labor Standards Provisions Applicable to Co ntracts Covering Federally Financed and Assisted Construction (also Labor Standards Provisions Applicable to Nonconstruction Contracts Subject to the Contract Work Hours and Safety Standards Act),” 29 CFR part 5. (3) “Anti-Kickback” Prohibitions of: (i) Section 1 of the Copeland “Anti-Kickback” Act, as amended, 18 U.S.C. § 874; (ii) Section 2 of the Copeland “Anti-Kickback” Act, as amended, 40 U.S.C. § 3145; and (iii) U.S. DOL regulations, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States,” 29 CFR part 3. (4) Construction Site Safety of: (i) Section 107 of the Contract Work Hours and Safety Standards Act, as amended, 40 U.S.C. § 3704, and other relevant parts of that Act, 40 U.S.C. § 3701 et seq.; and (ii) U.S. DOL regulations, “Recording and Reporting Occupational Injuries and Illnesses,” 29 CFR part 1904; “Occupational Safety and Health Standards,” 29 CFR part 1910; and “Safety and Health Regulations for Construction,” 29 CFR part 1926. From Section 16 (n) Bonding. The Subrecipient agrees to comply with the following bonding requirements and restrictions as provided in federal regulations and guidance: DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 82 Contract Number: 23-HTR-ZL-00074/491003115 Page 39 of 45 Version 10/23/19 (1) Construction. As provided in federal regulations and modified by FTA guidance, for each Project or related activities implementing the Agreement that involve construction, it will provide bid guarantee bonds, contract performance bonds, and payment bonds. (2) Activities Not Involving Construction. For each Project or related activities implementing the Agreement not involving construction, the Subrecipient will not impose excessive bonding and will follow FTA guidance. From Section 23 (b) Seismic Safety. The Subrecipient agrees to comply with the Earthquake Hazards Reduction Act of 1977, as amended, 42 U.S.C. § 7701 et seq., and U.S. DOT regulations, “Seismic Safety,” 49 CFR part 41, specifically, 49 CFR § 41.117. Section 12 Civil Rights D(3) Equal Employment Opportunity Requirements for Construction Activities. Comply, when undertaking “construction” as recognized by the U.S. Department of Labor (U.S. DOL), with: (i.) U.S. DOL regulations, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor,” 41 CFR chapter 60, and (ii) Executive Order No. 11246, “Equal Employment Opportunity in Federal Employment,” September 24, 1965, 42 U.S.C. § 2000e note (30 Fed. Reg. 12319, 12935), as amended by any later Executive Order that amends or supersedes it, referenced in 42 U.S.C. § 2000e note. Applicable to Nonconstruction Activities From Section 24. Employee Protections (b) Awards Not Involving Construction. The Subrecipient agrees to comply and assures that each Third Party Participant will comply with all federal laws, regulations, and requirements providing wage and hour protections for nonconstruction employees, including Section 102 of the Contract Work Hours and Safety Standards Act, as amended, 40 U.S.C. § 3702, and other relevant parts of that Act, 40 U.S.C. § 3701 et seq., and U.S. DOL regulations, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction (also Labor Standards Provisions Applicable to Nonconstruction Contracts Subject to the Contract Work Hours and Safety Standards Act),” 29 CFR part 5. Applicable to Transit Operations a. Public Transportation Employee Protective Arrangements . As a condition of award of federal assistance appropriated or made available for FTA programs involving public transportation operations, the Subrecipient agrees to comply and assures that each Third Party Participant will comply with the following employee protective arrangements of 49 U.S.C. § 5333(b): (1) U.S. DOL Certification. When its Awarded, the accompanying Agreement, or any Amendments thereto involve public transportation operations and are supported with federal assistance appropriated or made available for 49 U.S.C. §§ 5307 – 5312, 5316, 5318, 5323(a)(1), 5323(b), 5323(d), 5328, 5337, 5338(b), or 5339, or former 49 U.S.C. §§ 5308, 5309, 5312, or other provisions of law as required by the Federal Government, U.S. DOL must provide a certification of employee protective arrangements before FTA may provide federal assistance for that Award. The Subrecipient agrees that the certification issued by U.S. DOL is a condition of the underlying Agreement and that the Subrecipient must comply with its terms and conditions. (2) Special Warranty. When its Agreement involves public transportation operations and is supported with federal assistance appropriated or made available for 49 U.S.C. § 5311, U.S. DOL will provide a Special Warranty for its Award, including its Award of federal assistance under the T ribal Transit Program. The Subrecipient agrees that its U.S. DOL Special Warranty is a condition of the underlying Agreement and the Subrecipient must comply with its terms and conditions. (3) Special Arrangements for Agreements for Federal Assistance Aut horized under 49 U.S.C. § 5310. The Subrecipient agrees, and assures that any Third Party Participant providing public transportation operations will agree, that although pursuant to 49 U.S.C. § 5310, and former 49 U.S.C. §§ 5310 or 5317, FTA has determined that it was not “necessary or appropriate” to apply the conditions of 49 U.S.C. § 5333(b) to any Subagreement participating in the program to provide public transportation for seniors (elderly individuals) and individuals with disabilities, FTA reserves the right to make case-by- case determinations of the applicability of 49 U.S.C. § 5333(b) for all transfers of funding authorized under title 23, United States Code (flex funds), and make other exceptions as it deems appropriate. Section 28. Charter Service. DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 83 Contract Number: 23-HTR-ZL-00074/491003115 Page 40 of 45 Version 10/23/19 (a) Prohibitions. The Recipient agrees that neither it nor any Third Party Participant involved in the Award will engage in charter service, except as permitted under federal transit laws, specifically 49 U.S.C. § 5323(d), (g), and (r), FTA regulations, “Charter Service,” 49 CFR part 604, any other Federal Charter Service regulations, federal requirements, or federal guidance. (b) Exceptions. Apart from exceptions to the Charter Service restrictions in FTA’s Charter Service regulations, FTA has established the following additional exceptions to those restrictions: (1) FTA’s Charter Service restrictions do not apply to equipment or facilities supported with federal assistance appropriated or made available for 49 U.S.C. § 5307 to support a Job Access and Reverse Commute (JARC)- type Project or related activities that would have been eligible for assistance under repealed 49 U.S.C. § 5316 in effect in Fiscal Year 2012 or a previous fiscal year, provided that the Subrecipient uses that federal assistance for FTA program purposes only, and (2) FTA’s Charter Service restrictions do not apply to equipment or facilities supported with the federal assistance appropriated or made available for 49 U.S.C. § 5310 to support a New Freedom -type Project or related activities that would have been eligible for federal assistance under repealed 49 U.S.C. § 5317 in effect in Fiscal Year 2012 or a previous fiscal year, provided the Subrecipient uses that federal assistance for program purposes only. (c) Violations. If it or any Third Party Participant engages in a pattern of violations of FTA’s Charter Service regulations, FTA may require corrective measures and remedies, including withholding an amount of federal assistance as provided in FTA’s Charter Service regulations, 49 CFR part 604, appendix D, or barring it or the Third Party Participant from receiving federal assistance provided in 49 U.S.C. chapter 53, 23 U.S.C. § 133, or 23 U.S.C. § 142. Section 29. School Bus Operations. (a) Prohibitions. The Subrecipient agrees that neither it nor any Third Party Participant that is participating in its Award will engage in school bus operations exclusively for the transportation of students or school personnel in competition with private school bus operators, except as permitted by federal transit laws, 49 U.S.C. § 5323(f) or (g), FTA regulations, “School Bus Operations,” 49 CFR part 605, and any other applicable federal “School Bus Operations” laws, regulations, federal requirements, or applicable federal guidance. (b) Violations. If a Subrecipient or any Third Party Participant has operated school bus service in violation of FTA’s School Bus laws, regulations, or requirements, FTA may require the Subrecipient or Third Party Participant to take such remedial measures as FTA considers appropriate, or bar the Subrecipient or Third Party Participant from receiving federal transit assistance. From Section 35 Substance Abuse c. Alcohol Misuse and Prohibited Drug Use. (1) Requirements. The Subrecipient agrees to comply and assure s that its Third Party Participants will comply with: (i) Federal transit laws, specifically 49 U.S.C. § 5331; (ii) FTA regulations, “Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations,” 49 CFR part 655; and (iii) Applicable provisions of U.S. DOT regulations, “Procedures for Transportation Workplace Drug and Alcohol Testing Programs,” 49 CFR part 40. (2) Remedies for Non-Compliance. The Subrecipient agrees that if FTA determines that the Subrecipient or a Third Party Participant receiving federal assistance under 49 U.S.C. chapter 53 is not in compliance with 49 CFR part 655, the Federal Transit Administrator may bar that Subrecipient or Third Party Participant from receiving all or a portion of the federal transit assistance for pub lic transportation it would otherwise receive. Applicable to Planning, Research, Development, and Documentation Projects Section 17. Patent Rights. a. General. The Subrecipient agrees that: (1) Depending on the nature of the Agreement, the Federal Government may acquire patent rights when the Subrecipient or Third Party Participant produces a patented or patentable invention, improvement, or discovery; (2) The Federal Government’s rights arise when the patent or patentable information is conceived or reduced to practice with federal assistance provided through the underlying Agreement; or (3) When a patent is issued or patented information becomes available as described in the preceding section 17(a)(2) of this Master Agreement, the Subrecipient will notify FTA immediately and provide a detailed report satisfactory to FTA. b. Federal Rights. The Subrecipient agrees that: DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 84 Contract Number: 23-HTR-ZL-00074/491003115 Page 41 of 45 Version 10/23/19 (1) Its rights and responsibilities, and each Third Party Participant’s rights and responsibilities, in that federally assisted invention, improvement, or discovery will be determined as provided in applicable federal laws, regulations, requirements, and guidance, including any waiver thereof, and (2) Unless the Federal Government determines otherwise in writing, irrespective of its status or the status of any Third Party Participant as a large business, small business, state government, state instrumentality, local government, Indian tribe, nonprofit organization, institution of hig her education, or individual, the Subrecipient will transmit the Federal Government’s patent rights to FTA, as specified in 35 U.S.C. § 200 et seq., and U.S. Department of Commerce regulations, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” 37 CFR part 401. c. License Fees and Royalties. Consistent with the applicable U.S. DOT Common Rules, the Subrecipient agrees that license fees and royalties for patents, patent applications, and inventions produced with federal assistance provided through the Agreement are program income and must be used in compliance with applicable federal requirements. Section 18. Rights in Data and Copyrights. (a) Definition of “Subject Data.” As used in this section, “subject data” means recorded information whether or not copyrighted, and that is delivered or specified to be delivered as required by the Agreement. Examples of “subject data” include, but are not limited to computer software, standards, specifications, engineering drawings and associated lists, process sheets, manuals, technical reports, catalog item identifications, and related information, but do not include financial reports, cost analyses, or other similar information used for performance or administration of the underlying Agreement. (b) General Federal Restrictions. The following restrictions apply to all subject data first produced in the performance of the Agreement: (1) Prohibitions. The Subrecipient may not publish or reproduce any subject data, in whole, in part, or in any manner or form, or permit others to do so. (2) Exceptions. The prohibitions do not apply to publications or reproductions for the Subrecipient’s own internal use, an institution of higher learning, the portion of subject data that the Federal Government has previously released or approved for release to the public, or the portion of data that has the Federal Government’s prior written consent for release. (c) Federal Rights in Data and Copyrights. The Subrecipient agrees that: (1) General. It must provide a license to its “subject data” to the Federal Government that is royalty-free, non- exclusive, and irrevocable. The Federal Government’s license must permit the Federal Government to reproduce, publish, or otherwise use the subject data or permit other entities or individuals to use the subject data provided those actions are taken for Federal Government purposes, and (2) U.S. DOT Public Access Plan – Copyright License. The Subrecipient grants to U.S. DOT a worldwide, non- exclusive, non-transferable, paid-up, royalty-free copyright license, including all rights under copyright, to any and all Publications and Digital Data Sets as such terms are defined in the U.S. DOT Public Access plan, resulting from scientific research funded either fully or partially by this funding agreement. The Subrecipient herein acknowledges that the above copyright license grant is first in time to any and all other grants of a copyright license to such Publications and/or Digital Data Sets, and that U.S. DOT shall have priority over any other claim of exclusive copyright to the same. (d) Special Federal Rights in Data for Research, Development, Demonstration, Deployment, Technical Assistance, and Special Studies Programs. In general, FTA’s purpose in providing federal assistance for a research, development, demonstration, deployment, technical assistance, or special studies program is to increase transportation knowledge, rather than limit the benefits of the Award to the Subrecipient and its Third Party Participants. Therefore, the Subrecipient agrees that: (1) Publicly Available Report. When an Award providing federal assistance for any of the programs described above is completed, it must provide a repo rt of the Agreement that FTA may publish or make available for publication on the Internet. (2) Other Reports. It must provide other reports related to the Award that FTA may request. (3) Availability of Subject Data. FTA may make available its copyright license to the subject data, and a copy of the subject data to any FTA Recipient or any Third Party Participant at any tier, except as the Federal Government determines otherwise in writing. (4) Identification of Information. It must identify clearly any specific confidential, privileged, or proprietary information submitted to FTA. (5) Incomplete. If the Award is not completed for any reason whatsoever, all data developed with federal assistance for the Award becomes “subject data” and must be delivered as the Federal Government may direct. DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 85 Contract Number: 23-HTR-ZL-00074/491003115 Page 42 of 45 Version 10/23/19 (6) Exception. This section does not apply to an adaptation of any automatic data processing equipment or program that is both for the Subrecipient’s use and acquired with FTA capital program assistance. (e) License Fees and Royalties. Consistent with the applicable U.S. DOT Common Rules, the Subrecipient agrees that license fees and royalties for patents, patent applications, and inventions produced with federal assistance provided through the Agreement are program income and must be used in compliance with federal applicable requirements. (f) Hold Harmless. Upon request by the Federal Government, the Subrecipient agrees that if it intentionally violates any proprietary rights, copyrights, or right of privacy, and if its v iolation under the preceding section occurs from any of the publication, translation, reproduction, delivery, use or disposition of subject data, then it will indemnify, save, and hold harmless against any liability, including costs and expenses of the Federal Government’s officers, employees, and agents acting within the scope of their official duties. The Subrecipient will not be required to indemnify the Federal Government for any liability described in the preceding sentence, if the violation is caused by the wrongful acts of federal officers, employees or agents, or if indemnification is prohibited or limited by applicable state law. (g) Restrictions on Access to Patent Rights. Nothing in this section of this Master Agreement (FTA MA(23)) pertaining to rights in data either implies a license to the Federal Government under any patent, or may be construed to affect the scope of any license or other right otherwise granted to the Federal Government under any patent. (h) Data Developed Without Federal Assistance or Support. The Subrecipient agrees that in certain circumstances it may need to provide to FTA data developed without any federal assistance or support. Nevertheless, this section generally does not apply to data developed without federal assistance, even though that data may have been used in connection with the Award. The Subrecipient agrees that the Federal Government will not be able to protect data developed without federal assistance from unauthorized disclosure unless that data is clearly marked “Proprietary,” or “Confidential.” (i) Requirements to Release Data. The Subrecipient understands and agrees that the Federal Government may be required to release data and information the Subrecipient submits to the Federal Government as required under: (1). The Freedom of Information Act (FOIA), 5 U.S.C. § 552, (2) The U.S. DOT Common Rules, (3) U.S. DOT Public Access Plan, which provides that the Subrecipient agrees to satisfy the reporting and compliance requirements as set forth in the U.S. DOT Public Access plan, including, but not limited to, the submission and approval of a Data Management Plan, the use of Open Researcher and Contributor ID (ORCID) numbers, the creation and maintenance of a Research Project record in the Transportation Research Board’s (TRB) Research in Progress (RiP) database, and the timely and complete submission of all required publications and associated digital data sets as such terms are defined in the DOT Public Access plan. Additional information about how to comply with the requirements can be found at: http://ntl.bts.gov/publicaccess/howtocomply.html, or (4) Other federal laws, regulations, requirements, and guidance concerning access to records pertaining to the Award, the accompanying Agreement, and any Amendments thereto. Miscellaneous Special Requirements From Section 12. Civil Rights. (e) Disadvantaged Business Enterprise. To the extent authorized by applicable federal laws, regulations, or requirements, the Subrecipient agrees to facilitate, and assures that each Third Party Participant will facilitate, participation by small business concerns owned and controlled by socially and economically disadvantaged individuals, also referred to as “Disadvantaged Business Enterprises” (DBEs), in the Agreement as follows: (1) Statutory and Regulatory Requirements. The Subrecipient agrees to comply with: (i) Section 11101(e) of IIJA; (ii) U.S. DOT regulations, “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs,” 49 CFR part 26; and (iii) Federal transit law, specifically 49 U.S.C. § 5332, as provided in section 12 of this Master Agreement. (2) DBE Program Requirements. A Subrecipient that receives planning, capital and/or operating assistance and that will award prime third party contracts exceeding $250,000 the requirements of 49 CFR part 26. (3) Special Requirements for a Transit Vehicle Manufacturer (TVM). The Subrecipient agrees that: (i) TVM Certification. Each TVM, as a condition of being authorized to bid or propose on FTA-assisted transit vehicle procurements, must certify that it has complied with the requirements of 49 CFR part 26; and (ii) Reporting TVM Awards. Within 30 days of any third party contract award for a vehicle purchase, the Subrecipient must submit to FTA the name of the TVM contractor and the total dollar value of the third party contract, and notify FTA that this information has been attached to FTA’s electronic award DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 86 Contract Number: 23-HTR-ZL-00074/491003115 Page 43 of 45 Version 10/23/19 management system. The Subrecipient must also submit additional notifications if options are exercised in subsequent years to ensure that the TVM is still in good standing. (4) Assurance. As required by 49 CFR § 26.13(a): (i) Recipient Assurance. The Subrecipient agrees and assures that: (A) It must not discriminate on the basis of race, color, national origin, or sex in the award and performance of any FTA or U.S. DOT-assisted contract, or in the administration of its DBE program or the requirements of 49 CFR part 26; (B) It must take all necessary and reasonable steps under 49 CFR part 26 to ensure nondiscrimination in the award and administration of U.S. DOT-assisted contracts; (C) Its DBE program, as required under 49 CFR part 26 and as approved by U.S. DOT, is incorporated by reference and made part of the Underlying Agreement; and (D) Implementation of its DBE program approved by U.S. DOT is a legal obligation and failure to carry out its terms shall be treated as a violation of this Master Agreement. (ii) Subrecipient/Third Party Contractor/Third Party Subcontractor Assurance. The Subrecipient agrees and assures that it will include the following assurance in each subagreement and third party contract it signs with a Subrecipient or Third Party Contractor and agrees to obtain the agreement of each of its Subrecipients, Third Party Contractors, and Third Party Subcontractors to include the following assurance in every subagreement and third party contract it signs: (A) The Subrecipient, each Third Party Contractor, and each Third Party Subcontractor must not discriminate on the basis of race, color, national origin, or sex in the award and performance of any FTA or U.S. DOT-assisted subagreement, third party contract, and third party subcontract, as applicable, and the administration of its DBE program or the requirements of 49 CFR part 26; (B) The Subrecipient, each Third Party Contractor, and each Third Party Subcontractor must take all necessary and reasonable steps under 49 CFR part 26 to ensure nondiscrimination in the award and administration of U.S. DOT-assisted subagreements, third party contracts, and third party subcontracts, as applicable; (C) Failure by the Subrecipient and any of its Third Party Contractors or Third Party Subcontractors to carry out the requirements of subparagraph 12.e(4)(b) (of FTA MA(23)) is a material breach of their subagreement, third party contract, or third party subcontract, as applicable; and (D) The following remedies, or such other remedy as the Subrecipient deems appropriate, include , but are not limited to, withholding monthly progress payments; assessing sanctions; liquidated damages; and/or disqualifying the Subrecipient, Third Party Contractor, or Third Party Subcontractor from future bidding as non-responsible. (5) Remedies. Upon notification to the Subrecipient of its failure to carry out its approved program, FTA or U.S. DOT may impose sanctions as provided for under 49 CFR part 26, and, in appropriate cases, refer the matter for enforcement under either or both 18 U.S.C. § 1001, and/or the Program Fraud Civil Remedies Act of 1986, 31 U.S.C. § 3801 et seq. From Section 12. Civil Rights. (h) Nondiscrimination on the Basis of Disability. The Subrecipient agrees to comply with the following federal prohibitions against discrimination on the basis of disability: (1) Federal laws, including: (i) Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, which prohibits discrimination on the basis of disability in the administration of federally assisted Programs, Projects, or activities; (ii) The Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. § 12101 et seq., which requires that accessible facilities and services be made available to individuals with disabilities: (A) For FTA Recipients generally, Titles I, II, and III of the ADA apply,;but (B) For Indian Tribes, Titles II and III of the ADA apply, but Title I of the ADA does not apply because it exempts Indian Tribes from the definition of “employer;” (iii) The Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq., which requires that buildings and public accommodations be accessible to individuals with disabilities; (iv) Federal transit law, specifically 49 U.S.C. § 5332, which now includes disability as a prohibited basis for discrimination; and (v) Other applicable federal laws, regulations, and requirements pertaining to access for seniors or individuals with disabilities. (2) Federal regulations and guidance, including: (i) U.S. DOT regulations, “Transportation Services for Individuals with Disabilities (ADA),” 49 CFR part 37; DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 87 Contract Number: 23-HTR-ZL-00074/491003115 Page 44 of 45 Version 10/23/19 (ii) U.S. DOT regulations, “Nondiscrimination on the Basis of Disability in Programs and Activities Receiving or Benefiting from Federal Financial Assistance,” 49 CFR part 27; (iii) Joint U.S. Architectural and Transportation Barriers Compliance Board (U.S. ATBCB) and U.S. DOT regulations, “Americans With Disabilities (ADA) Accessibility Specifications for Transportation Vehicles,” 36 CFR part 1192 and 49 CFR part 38; (iv) U.S. DOT regulations, “Transportation for Individuals with Disabilities: Passenger Vessels,” 49 CFR part 39; (v) U.S. DOJ regulations, “Nondiscrimination on the Basis of Disability in State and Local Government Services,” 28 CFR part 35; (vi) U.S. DOJ regulations, “Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities,” 28 CFR part 36; (vii) U.S. EEOC, “Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act,” 29 CFR part 1630; (viii) U.S. Federal Communications Commission regulations, “Telecommunications Relay Services and Related Customer Premises Equipment for Persons with Disabilities,” 47 CFR part 64, Subpart F; (ix) U.S. ATBCB regulations, “Electronic and Information Technology Accessibility Standards,” 36 CFR part 1194; (x) FTA regulations, “Transportation for Elderly and Handicapped Persons,” 49 CFR part 609, (xi) FTA Circular 4710.1, “Americans with Disabilities Act: Guidance;” and (xii) Other applicable federal civil rights and nondiscrimination regulations and guidance. Section 16. Procurement. (a) Federal Laws, Regulations, Requirements, and Guidance. The Subrecipient agrees: (1) To comply with the requirements of 49 U.S.C. chapter 53 and other applicable federal laws, regulations, and requirements in effect now or later that affect its third party procurements; (2) To comply with the applicable U.S. DOT Common Rules; and (3) To follow the most recent edition and any revisions of FTA Circular 4220.1, “Third Party Contrac ting Guidance,” to the extent consistent with applicable federal laws, regulations, requirements, and guidance. State Requirements Section 37. Special Notification Requirements for States. (a) Types of Information. To the extent required under federal law, the State, agrees to provide the following information about federal assistance awarded for its State Program, Project, or related activities: (1) The Identification of FTA as the federal agency providing the federal assistance for a State Program or Project; (2) The Catalog of Federal Domestic Assistance Number of the program from which the federal assistance for a State Program or Project is authorized; and (3) The amount of federal assistance FTA has provided for a State Program or Project. (b) Documents. The State agrees to provide the information required under this provision in the following documents: (1) applications for federal assistance, (2) requests for proposals, or solicitations, (3) forms, (4) notifications, (5) press releases, and (6) other publications. DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 88 Contract Number: 23-HTR-ZL-00074/491003115 Page 45 of 45 Version 10/23/19 EXHIBIT E, VERIFICATION OF PAYMENT This checklist is to assist the Subrecipient in preparation of its billing packets to State. This checklist is provided as guidance and is subject to change by State. State shall provide notice of any such changes to Subrecipient. All items may not apply to your particular entity. State’s goal is to reimburse Subrecipients as quickly as possible and a well organized and complete billing packet helps to expedite payment. Verification of Payment –  General Ledger Report must have the following:  Identify check number or EFT number;  If no check number is available, submit Accounts Payable Distribution report with the General Ledger;  In-Kind (must be pre-approved by State) and/or cash match;  Date of the report;  Accounting period;  Current period transactions; and  Account coding for all incurred expenditures.  If no General Ledger Report, all of the following are acceptable :  copies of checks;  check registers; and  paycheck stub showing payment number, the amount paid, the check number or electronic funds transfer (EFT), and the date paid.  State needs to ensure that expenditures incurred by the local agencies have been paid by Party before State is invoiced by Party.  Payment amounts should match the amount requested on the reimbursement. Additional explanation and documentation is required for any variances. In-Kind or Cash Match – If an entity wishes to use these types of match, they must be approved by State prior to any Work taking place.  If in-kind or cash match is being used for the Local Match, the in-kind or cash match portion of the project must be included in the project application and the statement of work attached to the Agreement or purchase order. FTA does not require pre-approval of in-kind or cash match, but State does.  General ledger must also show the in-kind and/or cash match. Indirect costs – If an entity wishes to use indirect costs, the rate must be approved by State prior to applying it to the reimbursements.  If indirect costs are being requested, an approved indirect letter from State or your cognizant agency for indirect costs, as defined in 2 CCR §200. 19, must be provided. The letter must state what indirect costs are allowed, the approved rate and the time period for the approval. The indirect cost plan must be reconciled annually and an updated letter submitted each year thereafter. Fringe Benefits- Considered part of the Indirect Cost Rate and must be reviewed and approved prior to including these costs in the reimbursements.  Submit an approval letter from the cognizant agency for indirect costs, as defined in 2 CCR §200. 19, that verifies fringe benefit, or  Submit the following fringe benefit rate proposal package to State Audit Division:  Copy of Financial Statement;  Personnel Cost Worksheet;  State of Employee Benefits; and  Cost Policy Statement. DocuSign Envelope ID: 32F1F386-76AD-45A6-88C1-4BB20D4FB7E2 89 AGENDA ITEM NO. 3.4 Item Cover Page DATE:February 21, 2023 SUBMITTED BY:George Ruther, Housing ITEM TYPE:Consent Agenda AGENDA SECTION:Consent Agenda (5 min.) SUBJECT:Resolution No. 7, Series of 2023, A Resolution Approving the Purchase of Residential Property SUGGESTED ACTION:Approve Resolution No. 7, Series of 2023 authorizing the Town Manager to enter into an agreement, in a form approved by the Town Attorney, the purchase of Buffer Creek Condominium, Unit A6, 1860 Meadow Ridge Road, Vail, CO 81657 in the amount of, and not to exceed, $517,500, plus closing costs VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: Resolution No. 7, Series of 2023 Authorization to Purchase 02212023.doc Contract to Buy and Sell Real Estate Purchase of 1860 Meadow Ridge Unit A6 02142023.pdf 90 RESOLUTION NO. 7 SERIES OF 2023 A RESOLUTION APPROVING THE PURCHASE OF RESIDENTIAL PROPERTY WHEREAS, (“Owner”) is the owner of certain residential property located in Vail, Colorado (the “Property”); and WHEREAS, the Town wishes to purchase the Property from Owner, and Owner wishes to sell the Property to the Town, pursuant to the terms of the Contract to Buy and Sell Real Estate, attached hereto as Exhibit A and incorporated herein by this reference (the “Contract”). NOW THEREFORE, BE IT RESOLVED BYTHE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: Section 1.The Town Council hereby approves the Contract in substantially the same form attached hereto as Exhibit A and in a form approved by the Town Attorney, authorizes the appropriation of the funds necessary to complete the purchase of the Property and authorizes the Town Manager to execute the Contract on behalf of theTown. 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 21 st day of February, 2023. ________________________________ Kimberly Langmaid, Mayor ATTEST: _________________________________ Stephanie Bibbens, Town Clerk 91 Date: 2/9/2023 Berkshire Hathaway HomeServices Colorado Properties Danean Boukather Ph: 970-476-2482 Fax: 970-476-6499 The printed portions of this form, except differentiated additions, have been approved by the Colorado Real Estate Commission. (CBS1-6-21) (Mandatory 1-22) THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT LEGAL AND TAX OR OTHER COUNSEL BEFORE SIGNING. CONTRACT TO BUY AND SELL REAL ESTATE (RESIDENTIAL) AGREEMENT 1. AGREEMENT. Buyer agrees to buy and Seller agrees to sell the Property described below on the terms and conditions set forth in this contract (Contract). 2. PARTIES AND PROPERTY. 2.1. Buyer. Town of Vail (Buyer) will take title to the Property described below as Joint Tenants Tenants In Common Other n/a. 2.2. No Assignability. This Contract IS NOT assignable by Buyer unless otherwise specified in Additional Provisions. 2.3. Seller. Steve Moore and Dennie. L. Moore (Seller) is the current owner of the Property described below. 2.4. Property. The Property is the following legally described real estate in the County of Eagle, Colorado (insert legal description): BLDG A Subdivision: BUFFER CREEK CONDO Unit: 6 known as: 1860 Meadow Ridge, A6 Vail, CO 81657 together with the interests, easements, rights, benefits, improvements and attached fixtures appurtenant thereto and all interest of Seller in vacated streets and alleys adjacent thereto, except as herein excluded (Property). 2.5. Inclusions. The Purchase Price includes the following items (Inclusions): 2.5.1. Inclusions – Attached. If attached to the Property on the date of this Contract, the following items are included unless excluded under Exclusions: lighting, heating, plumbing, ventilating and air conditioning units, TV antennas, inside telephone, network and coaxial (cable) wiring and connecting blocks/jacks, plants, mirrors, floor coverings, intercom systems, built-in kitchen appliances, sprinkler systems and controls, built-in vacuum systems (including accessories) and garage door openers (including n/a remote controls). If checked, the following are owned by the Seller and included: Solar Panels Water Softeners Security Systems Satellite Systems (including satellite dishes). Leased items should be listed under § 2.5.7. (Leased Items). If any additional items are attached to the Property after the date of this Contract, such additional items are also included in the Purchase Price. 2.5.2. Inclusions – Not Attached. If on the Property, whether attached or not, on the date of this Contract, the following items are included unless excluded under Exclusions: storm windows, storm doors, window and porch shades, awnings, blinds, screens, window coverings and treatments, curtain rods, drapery rods, fireplace inserts, fireplace screens, fireplace grates, heating stoves, storage sheds, carbon monoxide alarms, smoke/fire detectors and all keys. 2.5.3. Other Inclusions. The following items, whether fixtures or personal property, are also CBS1-6-21. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 1 of 23 2/14/2023 4:31:18 PM CTMeContracts.com - ©2023 CTM Software Corp. 92 included in the Purchase Price: Refrigerator, dishwasher, stove, microwave. If the box is checked, Buyer and Seller have concurrently entered into a separate agreement for additional personal property outside of this Contract. 2.5.4. Encumbered Inclusions. Any Inclusions owned by Seller (e.g., owned solar panels) must be conveyed at Closing by Seller free and clear of all taxes (except personal property and general real estate taxes for the year of Closing), liens and encumbrances, except: n/a 2.5.5. Personal Property Conveyance. Conveyance of all personal property will be by bill of sale or other applicable legal instrument. 2.5.6. Parking and Storage Facilities. The use or ownership of the following parking facilities: 1 assigned parking space; and the use or ownership of the following storage facilities: Those on record. Note to Buyer: If exact rights to the parking and storage facilities is a concern to Buyer, Buyer should investigate. 2.5.7. Leased Items. The following personal property is currently leased to Seller which will be transferred to Buyer at Closing (Leased Items): n/a 2.6. Exclusions. The following items are excluded (Exclusions): n/a 2.7. Water Rights/Well Rights. 2.7.1. Deeded Water Rights. The following legally described water rights: n/a Any deeded water rights will be conveyed by a good and sufficient n/a deed at Closing. 2.7.2. Other Rights Relating to Water. The following rights relating to water not included in §§ 2.7.1., 2.7.3. and 2.7.4., will be transferred to Buyer at Closing: n/a 2.7.3. Well Rights. Seller agrees to supply required information to Buyer about the well. Buyer understands that if the well to be transferred is a “Small Capacity Well” or a “Domestic Exempt Water Well” used for ordinary household purposes, Buyer must, prior to or at Closing, complete a Change in Ownership form for the well. If an existing well has not been registered with the Colorado Division of Water Resources in the Department of Natural Resources (Division), Buyer must complete a registration of existing well form for the well and pay the cost of registration. If no person will be providing a closing service in connection with the transaction, Buyer must file the form with the Division within sixty days after Closing. The Well Permit # is n/a. 2.7.4. Water Stock Certificates. The water stock certificates to be transferred at Closing are as follows: n/a 2.7.5. Conveyance. If Buyer is to receive any rights to water pursuant to § 2.7.2. (Other Rights Relating to Water), § 2.7.3. (Well Rights), or § 2.7.4. (Water Stock Certificates), Seller agrees to convey such rights to Buyer by executing the applicable legal instrument at Closing. 2.7.6. Water Rights Review. Buyer Does Does Not have a Right to Terminate if examination of the Water Rights is unsatisfactory to Buyer on or before the Water Rights Examination Deadline. 3. DATES, DEADLINES AND APPLICABILITY. 3.1. Dates and Deadlines. Item No.Reference Event Date or Deadline 1 § 3 Time of Day Deadline n/a 2 § 4 Alternative Earnest Money Deadline 5 Days after MEC CBS1-6-21. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 2 of 23 2/14/2023 4:31:18 PM CTMeContracts.com - ©2023 CTM Software Corp. 93 Tuesday Tuesday Tuesday Tuesday Tuesday Thursday Tuesday Thursday Tuesday Tuesday Tuesday Thursday Monday Monday Monday Monday Title 3 § 8 Record Title Deadline (and Tax Certificate)2/21/2023 4 § 8 Record Title Objection Deadline 2/28/2023 5 § 8 Off-Record Title Deadline 2/21/2023 6 § 8 Off-Record Title Objection Deadline 2/28/2023 7 § 8 Title Resolution Deadline 3/7/2023 8 § 8 Third Party Right to Purchase/Approve Deadline 3/16/2023 Owners' Association 9 § 7 Association Documents Deadline 2/21/2023 10 § 7 Association Documents Termination Deadline 2/23/2023 Seller's Disclosures 11 § 10 Seller’s Property Disclosure Deadline 2/21/2023 12 § 10 Lead-Based Paint Disclosure Deadline 2/21/2023 Loan and Credit 13 § 5 New Loan Application Deadline n/a 14 § 5 New Loan Terms Deadline n/a 15 § 5 New Loan Availability Deadline n/a 16 § 5 Buyer’s Credit Information Deadline n/a 17 § 5 Disapproval of Buyer’s Credit Information Deadline n/a 18 § 5 Existing Loan Deadline n/a 19 § 5 Existing Loan Termination Deadline n/a 20 § 5 Loan Transfer Approval Deadline n/a 21 § 4 Seller or Private Financing Deadline n/a Appraisal 22 § 6 Appraisal Deadline n/a 23 § 6 Appraisal Objection Deadline n/a 24 § 6 Appraisal Resolution Deadline n/a Survey 25 § 9 New ILC or New Survey Deadline n/a 26 § 9 New ILC or New Survey Objection Deadline n/a 27 § 9 New ILC or New Survey Resolution Deadline n/a Inspection and Due diligence 28 § 2 Water Rights Examination Deadline n/a 29 § 8 Mineral Rights Examination Deadline n/a 30 § 10 Inspection Termination Deadline 3/7/2023 31 § 10 Inspection Objection Deadline 3/2/2023 32 § 10 Inspection Resolution Deadline 3/6/2023 33 § 10 Property Insurance Termination Deadline 2/27/2023 34 § 10 Due Diligence Documents Delivery Deadline 2/20/2023 35 § 10 Due Diligence Documents Objection Deadline 2/27/2023 CBS1-6-21. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 3 of 23 2/14/2023 4:31:18 PM CTMeContracts.com - ©2023 CTM Software Corp. 94 Wednesday Tuesday Wednesday Wednesday Tuesday 517,500.00 25,000.00 36 § 10 Due Diligence Documents Resolution Deadline 3/1/2023 37 § 10 Conditional Sale Deadline n/a 38 § 10 Lead-Based Paint Termination Deadline 2/28/2023 Closing and Possession 39 § 12 Closing Date 3/15/2023 40 § 17 Possession Date 3/15/2023 41 § 17 Possession Time Deliver of deed 42 § 27 Acceptance Deadline Date 2/14/2023 43 § 27 Acceptance Deadline Time 5:00 PM(MST) 44 n/a n/a n/a 45 n/a n/a n/a Note: If FHA or VA loan boxes are checked in § 4.5.3. (Loan Limitations), the Appraisal deadlines DO NOT apply to FHA insured or VA guaranteed loans. 3.2. Applicability of Terms. If any deadline blank in § 3.1. (Dates and Deadlines) is left blank or completed with “N/A”, or the word “Deleted,” such deadline is not applicable and the corresponding provision containing the deadline is deleted. Any box checked in this Contract means the corresponding provision applies. If no box is checked in a provision that contains a selection of “None”, such provision means that “None” applies. The abbreviation “MEC” (mutual execution of this Contract) means the date upon which both parties have signed this Contract. The abbreviation “N/A” as used in this Contract means not applicable. 3.3. Day; Computation of Period of Days; Deadlines. 3.3.1. Day. As used in this Contract, the term “day” means the entire day ending at 11:59 p.m., United States Mountain Time (Standard or Daylight Savings, as applicable). Except however, if a Time of Day Deadline is specified in § 3.1. (Dates and Deadlines), all Objection Deadlines, Resolution Deadlines, Examination Deadlines and Termination Deadlines will end on the specified deadline date at the time of day specified in the Time of Day Deadline, United States Mountain Time. If Time of Day Deadline is left blank or “N/A” the deadlines will expire at 11:59 p.m., United States Mountain Time. 3.3.2. Computation of Period of Days. In computing a period of days (e.g., three days after MEC), when the ending date is not specified, the first day is excluded and the last day is included. 3.3.3. Deadlines. If any deadline falls on a Saturday, Sunday or federal or Colorado state holiday (Holiday), such deadline Will Will Not be extended to the next day that is not a Saturday, Sunday or Holiday. Should neither box be checked, the deadline will not be extended. 4. PURCHASE PRICE AND TERMS. 4.1. Price and Terms. The Purchase Price set forth below is payable in U.S. Dollars by Buyer as follows: Item No.Reference Item Amount Amount 1 § 4.1.Purchase Price $ 2 § 4.3.Earnest Money $ 3 § 4.5.New Loan $ 4 § 4.6.Assumption Balance $ 5 § 4.7.Private Financing $ 6 § 4.7.Seller Financing $ 7 n/a n/a $ CBS1-6-21. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 4 of 23 2/14/2023 4:31:18 PM CTMeContracts.com - ©2023 CTM Software Corp. 95 492,500.00 517,500.00 517,500.00 8 n/a n/a $ 9 § 4.4.Cash at Closing $ 10 Total $$ 4.2. Seller Concession. At Closing, Seller will credit to Buyer $n/a (Seller Concession). The Seller Concession may be used for any Buyer fee, cost, charge or expenditure to the extent the amount is allowed by the Buyer’s lender and is included in the Closing Statement or Closing Disclosure at Closing. Examples of allowable items to be paid for by the Seller Concession include, but are not limited to: Buyer’s closing costs, loan discount points, loan origination fees, prepaid items and any other fee, cost, charge, expense or expenditure. Seller Concession is in addition to any sum Seller has agreed to pay or credit Buyer elsewhere in this Contract. 4.3. Earnest Money. The Earnest Money set forth in this Section, in the form of a Wire Transfer, will be payable to and held by Land Title Guarantee (Earnest Money Holder), in its trust account, on behalf of both Seller and Buyer. The Earnest Money deposit must be tendered, by Buyer, with this Contract unless the parties mutually agree to an Alternative Earnest Money Deadline for its payment. The parties authorize delivery of the Earnest Money deposit to the company conducting the Closing (Closing Company), if any, at or before Closing. In the event Earnest Money Holder has agreed to have interest on Earnest Money deposits transferred to a fund established for the purpose of providing affordable housing to Colorado residents, Seller and Buyer acknowledge and agree that any interest accruing on the Earnest Money deposited with the Earnest Money Holder in this transaction will be transferred to such fund. 4.3.1. Alternative Earnest Money Deadline. The deadline for delivering the Earnest Money, if other than at the time of tender of this Contract, is as set forth as the Alternative Earnest Money Deadline. 4.3.2. Disposition of Earnest Money. If Buyer has a Right to Terminate and timely terminates, Buyer is entitled to the return of Earnest Money as provided in this Contract. If this Contract is terminated as set forth in § 24 and, except as provided in § 23 (Earnest Money Dispute), if the Earnest Money has not already been returned following receipt of a Notice to Terminate, Seller agrees to execute and return to Buyer or Broker working with Buyer, written mutual instructions (e.g., Earnest Money Release form), within three days of Seller’s receipt of such form. If Seller is entitled to the Earnest Money, and, except as provided in § 23 (Earnest Money Dispute), if the Earnest Money has not already been paid to Seller, following receipt of an Earnest Money Release form, Buyer agrees to execute and return to Seller or Broker working with Seller, written mutual instructions (e.g., Earnest Money Release form), within three days of Buyer’s receipt. 4.3.2.1. Seller Failure to Timely Return Earnest Money. If Seller fails to timely execute and return the Earnest Money Release Form, or other written mutual instructions, Seller is in default and liable to Buyer as set forth in “If Seller is in Default”, § 20.2. and § 21, unless Seller is entitled to the Earnest Money due to a Buyer default. 4.3.2.2. Buyer Failure to Timely Release Earnest Money. If Buyer fails to timely execute and return the Earnest Money Release Form, or other written mutual instructions, Buyer is in default and liable to Seller as set forth in “If Buyer is in Default, § 20.1. and § 21, unless Buyer is entitled to the Earnest Money due to a Seller Default. 4.4. Form of Funds; Time of Payment; Available Funds. 4.4.1. Good Funds. All amounts payable by the parties at Closing, including any loan proceeds, Cash at Closing and closing costs, must be in funds that comply with all applicable Colorado laws, including electronic transfer funds, certified check, savings and loan teller’s check and cashier’s check (Good Funds). 4.4.2. Time of Payment. All funds, including the Purchase Price to be paid by Buyer, must be paid before or at Closing or as otherwise agreed in writing between the parties to allow disbursement by Closing Company at Closing OR SUCH NONPAYING PARTY WILL BE IN DEFAULT. 4.4.3. Available Funds. Buyer represents that Buyer, as of the date of this Contract, Does Does Not have funds that are immediately verifiable and available in an amount not less than the amount stated as Cash at Closing in § 4.1. 4.5. New Loan. (Omitted as inapplicable) 4.6. Assumption. (Omitted as inapplicable) 4.7. Seller or Private Financing. (Omitted as inapplicable) CBS1-6-21. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 5 of 23 2/14/2023 4:31:18 PM CTMeContracts.com - ©2023 CTM Software Corp. 96 TRANSACTION PROVISIONS 5. FINANCING CONDITIONS AND OBLIGATIONS. (Omitted as inapplicable) 5.3. Credit Information. (Omitted as inapplicable) 5.4. Existing Loan Review. (Omitted as inapplicable) 6. APPRAISAL PROVISIONS. 6.1. Appraisal Definition. An “Appraisal” is an opinion of value prepared by a licensed or certified appraiser, engaged on behalf of Buyer or Buyer’s lender, to determine the Property’s market value (Appraised Value). The Appraisal may also set forth certain lender requirements, replacements, removals or repairs necessary on or to the Property as a condition for the Property to be valued at the Appraised Value. 6.2. Appraised Value. The applicable appraisal provision set forth below applies to the respective loan type set forth in § 4.5.3., or if a cash transaction (i.e., no financing), § 6.2.1. applies. 6.2.1. Conventional/Other. Buyer has the right to obtain an Appraisal. If the Appraised Value is less than the Purchase Price, or if the Appraisal is not received by Buyer on or before Appraisal Deadline Buyer may, on or before Appraisal Objection Deadline: 6.2.1.1. Notice to Terminate. Notify Seller in writing, pursuant to § 24.1., that this Contract is terminated; or 6.2.1.2. Appraisal Objection. Deliver to Seller a written objection accompanied by either a copy of the Appraisal or written notice from lender that confirms the Appraised Value is less than the Purchase Price (Lender Verification). 6.2.1.3. Appraisal Resolution. If an Appraisal Objection is received by Seller, on or before Appraisal Objection Deadline and if Buyer and Seller have not agreed in writing to a settlement thereof on or before Appraisal Resolution Deadline, this Contract will terminate on the Appraisal Resolution Deadline, unless Seller receives Buyer’s written withdrawal of the Appraisal Objection before such termination, (i.e., on or before expiration of Appraisal Resolution Deadline). 6.2.2. FHA. It is expressly agreed that, notwithstanding any other provisions of this Contract, the purchaser (Buyer) shall not be obligated to complete the purchase of the Property described herein or to incur any penalty by forfeiture of Earnest Money deposits or otherwise unless the purchaser (Buyer) has been given, in accordance with HUD/FHA or VA requirements, a written statement issued by the Federal Housing Commissioner, Department of Veterans Affairs, or a Direct Endorsement lender, setting forth the appraised value of the Property of not less than $n/a. The purchaser (Buyer) shall have the privilege and option of proceeding with the consummation of this Contract without regard to the amount of the appraised valuation. The appraised valuation is arrived at to determine the maximum mortgage the Department of Housing and Urban Development will insure. HUD does not warrant the value nor the condition of the Property. The purchaser (Buyer) should satisfy himself/herself/themselves that the price and condition of the Property are acceptable. 6.2.3. VA. It is expressly agreed that, notwithstanding any other provisions of this Contract, the purchaser (Buyer) shall not incur any penalty by forfeiture of Earnest Money or otherwise or be obligated to complete the purchase of the Property described herein, if the Contract Purchase Price or cost exceeds the reasonable value of the Property established by the Department of Veterans Affairs. The purchaser (Buyer) shall, however, have the privilege and option of proceeding with the consummation of this Contract without regard to the amount of the reasonable value established by the Department of Veterans Affairs. 6.3. Lender Property Requirements. If the lender imposes any written requirements, replacements, removals or repairs, including any specified in the Appraisal (Lender Property Requirements) to be made to the Property (e.g., roof repair, repainting), beyond those matters already agreed to by Seller in this Contract, this Contract terminates on the earlier of three days following Seller’s receipt of the Lender Property Requirements, or Closing, unless prior to termination: (1) the parties enter into a written agreement to satisfy the Lender Property Requirements; (2) the Lender Property Requirements have been completed; or (3) the satisfaction of the Lender Property Requirements is waived in writing by Buyer. CBS1-6-21. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 6 of 23 2/14/2023 4:31:18 PM CTMeContracts.com - ©2023 CTM Software Corp. 97 6.4. Cost of Appraisal. Cost of the Appraisal to be obtained after the date of this Contract must be timely paid by Buyer Seller. The cost of the Appraisal may include any and all fees paid to the appraiser, appraisal management company, lender’s agent or all three. 7. OWNERS’ ASSOCIATIONS. This Section is applicable if the Property is located within one or more Common Interest Communities and subject to one or more declarations (Association). 7.1. Common Interest Community Disclosure. THE PROPERTY IS LOCATED WITHIN A COMMON INTEREST COMMUNITY AND IS SUBJECT TO THE DECLARATION FOR THE COMMUNITY. THE OWNER OF THE PROPERTY WILL BE REQUIRED TO BE A MEMBER OF THE OWNERS’ ASSOCIATION FOR THE COMMUNITY AND WILL BE SUBJECT TO THE BYLAWS AND RULES AND REGULATIONS OF THE ASSOCIATION. THE DECLARATION, BYLAWS AND RULES AND REGULATIONS WILL IMPOSE FINANCIAL OBLIGATIONS UPON THE OWNER OF THE PROPERTY, INCLUDING AN OBLIGATION TO PAY ASSESSMENTS OF THE ASSOCIATION. IF THE OWNER DOES NOT PAY THESE ASSESSMENTS, THE ASSOCIATION COULD PLACE A LIEN ON THE PROPERTY AND POSSIBLY SELL IT TO PAY THE DEBT. THE DECLARATION, BYLAWS AND RULES AND REGULATIONS OF THE COMMUNITY MAY PROHIBIT THE OWNER FROM MAKING CHANGES TO THE PROPERTY WITHOUT AN ARCHITECTURAL REVIEW BY THE ASSOCIATION (OR A COMMITTEE OF THE ASSOCIATION) AND THE APPROVAL OF THE ASSOCIATION. PURCHASERS OF PROPERTY WITHIN THE COMMON INTEREST COMMUNITY SHOULD INVESTIGATE THE FINANCIAL OBLIGATIONS OF MEMBERS OF THE ASSOCIATION. PURCHASERS SHOULD CAREFULLY READ THE DECLARATION FOR THE COMMUNITY AND THE BYLAWS AND RULES AND REGULATIONS OF THE ASSOCIATION. 7.2. Association Documents to Buyer. Seller is obligated to provide to Buyer the Association Documents (defined below), at Seller’s expense, on or before Association Documents Deadline. Seller authorizes the Association to provide the Association Documents to Buyer, at Seller’s expense. Seller’s obligation to provide the Association Documents is fulfilled upon Buyer’s receipt of the Association Documents, regardless of who provides such documents. 7.3. Association Documents. Association documents (Association Documents) consist of the following: 7.3.1. All Association declarations, articles of incorporation, bylaws, articles of organization, operating agreements, rules and regulations, party wall agreements and the Association’s responsible governance policies adopted under § 38-33.3-209.5, C.R.S.; 7.3.2. Minutes of: (1) the annual owners’ or members’ meeting and (2) any executive boards’ or managers’ meetings; such minutes include those provided under the most current annual disclosure required under § 38-33.3-209.4, C.R.S. (Annual Disclosure) and minutes of meetings, if any, subsequent to the minutes disclosed in the Annual Disclosure. If none of the preceding minutes exist, then the most recent minutes, if any (§§ 7.3.1. and 7.3.2., collectively, Governing Documents); and 7.3.3. List of all Association insurance policies as provided in the Association’s last Annual Disclosure, including, but not limited to, property, general liability, association director and officer professional liability and fidelity policies. The list must include the company names, policy limits, policy deductibles, additional named insureds and expiration dates of the policies listed (Association Insurance Documents); 7.3.4. A list by unit type of the Association’s assessments, including both regular and special assessments as disclosed in the Association’s last Annual Disclosure; 7.3.5. The Association’s most recent financial documents which consist of: (1) the Association’s operating budget for the current fiscal year, (2) the Association’s most recent annual financial statements, including any amounts held in reserve for the fiscal year immediately preceding the Association’s last Annual Disclosure, (3) the results of the Association’s most recent available financial audit or review, (4) list of the fees and charges (regardless of name or title of such fees or charges) that the Association’s community association manager or Association will charge in connection with the Closing including, but not limited to, any fee incident to the issuance of the Association’s statement of assessments (Status Letter), any rush or update fee charged for the Status Letter, any record change fee or ownership record transfer fees (Record Change Fee), fees to access documents, (5) list of all assessments required to be paid in advance, reserves CBS1-6-21. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 7 of 23 2/14/2023 4:31:18 PM CTMeContracts.com - ©2023 CTM Software Corp. 98 or working capital due at Closing and (6) reserve study, if any (§§ 7.3.4. and 7.3.5., collectively, Financial Documents); 7.3.6. Any written notice from the Association to Seller of a “construction defect action” under § 38-33.3-303.5, C.R.S. within the past six months and the result of whether the Association approved or disapproved such action (Construction Defect Documents). Nothing in this Section limits the Seller’s obligation to disclose adverse material facts as required under § 10.2. (Disclosure of Adverse Material Facts; Subsequent Disclosure; Present Condition) including any problems or defects in the common elements or limited common elements of the Association property. 7.4. Conditional on Buyer’s Review. Buyer has the right to review the Association Documents. Buyer has the Right to Terminate under § 24.1., on or before Association Documents Termination Deadline, based on any unsatisfactory provision in any of the Association Documents, in Buyer’s sole subjective discretion. Should Buyer receive the Association Documents after Association Documents Deadline, Buyer, at Buyer’s option, has the Right to Terminate under § 24.1. by Buyer’s Notice to Terminate received by Seller on or before ten days after Buyer’s receipt of the Association Documents. If Buyer does not receive the Association Documents, or if Buyer’s Notice to Terminate would otherwise be required to be received by Seller after Closing Date, Buyer’s Notice to Terminate must be received by Seller on or before Closing. If Seller does not receive Buyer’s Notice to Terminate within such time, Buyer accepts the provisions of the Association Documents as satisfactory and Buyer waives any Right to Terminate under this provision, notwithstanding the provisions of § 8.6. (Third Party Right to Purchase/Approve). 8. TITLE INSURANCE, RECORD TITLE AND OFF-RECORD TITLE. 8.1. Evidence of Record Title. 8.1.1. Seller Selects Title Insurance Company. If this box is checked, Seller will select the title insurance company to furnish the owner’s title insurance policy at Seller’s expense. On or before Record Title Deadline, Seller must furnish to Buyer, a current commitment for an owner’s title insurance policy (Title Commitment), in an amount equal to the Purchase Price, or if this box is checked, an Abstract of Title certified to a current date. Seller will cause the title insurance policy to be issued and delivered to Buyer as soon as practicable at or after Closing. 8.1.2. Buyer Selects Title Insurance Company. If this box is checked, Buyer will select the title insurance company to furnish the owner’s title insurance policy at Buyer’s expense. On or before Record Title Deadline, Buyer must furnish to Seller, a current commitment for owner’s title insurance policy (Title Commitment), in an amount equal to the Purchase Price. If neither box in § 8.1.1. or § 8.1.2. is checked, § 8.1.1. applies. 8.1.3. Owner’s Extended Coverage (OEC). The Title Commitment Will Will Not contain Owner’s Extended Coverage (OEC). If the Title Commitment is to contain OEC, it will commit to delete or insure over the standard exceptions which relate to: (1) parties in possession, (2) unrecorded easements, (3) survey matters, (4) unrecorded mechanics’ liens, (5) gap period (period between the effective date and time of commitment to the date and time the deed is recorded) and (6) unpaid taxes, assessments and unredeemed tax sales prior to the year of Closing. Any additional premium expense to obtain OEC will be paid by Buyer Seller One-Half by Buyer and One-Half by Seller Other n/a. Regardless of whether the Contract requires OEC, the Title Insurance Commitment may not provide OEC or delete or insure over any or all of the standard exceptions for OEC. The Title Insurance Company may require a New Survey or New ILC, defined below, among other requirements for OEC. If the Title Insurance Commitment is not satisfactory to Buyer, Buyer has a right to object under § 8.7. (Right to Object to Title, Resolution). 8.1.4. Title Documents. Title Documents consist of the following: (1) copies of any plats, declarations, covenants, conditions and restrictions burdening the Property and (2) copies of any other documents (or, if illegible, summaries of such documents) listed in the schedule of exceptions (Exceptions) in the Title Commitment furnished to Buyer (collectively, Title Documents). 8.1.5. Copies of Title Documents. Buyer must receive, on or before Record Title Deadline, copies of all Title Documents. This requirement pertains only to documents as shown of record in the office of the clerk and recorder in the county where the Property is located. The cost of furnishing copies of the CBS1-6-21. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 8 of 23 2/14/2023 4:31:18 PM CTMeContracts.com - ©2023 CTM Software Corp. 99 documents required in this Section will be at the expense of the party or parties obligated to pay for the owner’s title insurance policy. 8.1.6. Existing Abstracts of Title. Seller must deliver to Buyer copies of any abstracts of title covering all or any portion of the Property (Abstract of Title) in Seller’s possession on or before Record Title Deadline. 8.2. Record Title. Buyer has the right to review and object to the Abstract of Title or Title Commitment and any of the Title Documents as set forth in § 8.7. (Right to Object to Title, Resolution) on or before Record Title Objection Deadline. Buyer’s objection may be based on any unsatisfactory form or content of Title Commitment or Abstract of Title, notwithstanding § 13, or any other unsatisfactory title condition, in Buyer’s sole subjective discretion. If the Abstract of Title, Title Commitment or Title Documents are not received by Buyer on or before the Record Title Deadline, or if there is an endorsement to the Title Commitment that adds a new Exception to title, a copy of the new Exception to title and the modified Title Commitment will be delivered to Buyer. Buyer has until the earlier of Closing or ten days after receipt of such documents by Buyer to review and object to: (1) any required Title Document not timely received by Buyer, (2) any change to the Abstract of Title, Title Commitment or Title Documents, or (3) any endorsement to the Title Commitment. If Seller receives Buyer’s Notice to Terminate or Notice of Title Objection, pursuant to this § 8.2. (Record Title), any title objection by Buyer is governed by the provisions set forth in § 8.7. (Right to Object to Title, Resolution). If Seller has fulfilled all Seller’s obligations, if any, to deliver to Buyer all documents required by § 8.1. (Evidence of Record Title) and Seller does not receive Buyer’s Notice to Terminate or Notice of Title Objection by the applicable deadline specified above, Buyer accepts the condition of title as disclosed by the Abstract of Title, Title Commitment and Title Documents as satisfactory. 8.3. Off-Record Title. Seller must deliver to Buyer, on or before Off-Record Title Deadline, true copies of all existing surveys in Seller’s possession pertaining to the Property and must disclose to Buyer all easements, liens (including, without limitation, governmental improvements approved, but not yet installed) or other title matters not shown by public records, of which Seller has actual knowledge (Off-Record Matters). This Section excludes any New ILC or New Survey governed under § 9 (New ILC, New Survey). Buyer has the right to inspect the Property to investigate if any third party has any right in the Property not shown by public records (e.g., unrecorded easement, boundary line discrepancy or water rights). Buyer’s Notice to Terminate or Notice of Title Objection of any unsatisfactory condition (whether disclosed by Seller or revealed by such inspection, notwithstanding § 8.2. (Record Title) and § 13 (Transfer of Title), in Buyer’s sole subjective discretion, must be received by Seller on or before Off-Record Title Objection Deadline. If an Off-Record Matter is received by Buyer after the Off-Record Title Deadline, Buyer has until the earlier of Closing or ten days after receipt by Buyer to review and object to such Off-Record Matter. If Seller receives Buyer’s Notice to Terminate or Notice of Title Objection pursuant to this § 8.3. (Off-Record Title), any title objection by Buyer is governed by the provisions set forth in § 8.7. (Right to Object to Title, Resolution). If Seller does not receive Buyer’s Notice to Terminate or Notice of Title Objection by the applicable deadline specified above, Buyer accepts title subject to such Off-Record Matters and rights, if any, of third parties not shown by public records of which Buyer has actual knowledge. 8.4. Special Taxing Districts. SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO GENERAL OBLIGATION INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED FROM ANNUAL TAX LEVIES ON THE TAXABLE PROPERTY WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH DISTRICTS MAY BE PLACED AT RISK FOR INCREASED MILL LEVIES AND TAX TO SUPPORT THE SERVICING OF SUCH DEBT WHERE CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH A DISTRICT TO DISCHARGE SUCH INDEBTEDNESS WITHOUT SUCH AN INCREASE IN MILL LEVIES. BUYERS SHOULD INVESTIGATE THE SPECIAL TAXING DISTRICTS IN WHICH THE PROPERTY IS LOCATED BY CONTACTING THE COUNTY TREASURER, BY REVIEWING THE CERTIFICATE OF TAXES DUE FOR THE PROPERTY AND BY OBTAINING FURTHER INFORMATION FROM THE BOARD OF COUNTY COMMISSIONERS, THE COUNTY CLERK AND RECORDER, OR THE COUNTY ASSESSOR. 8.5. Tax Certificate. A tax certificate paid for by Seller Buyer, for the Property listing any special taxing districts that affect the Property (Tax Certificate) must be delivered to Buyer on or before Record Title Deadline. If the Property is located within a special taxing district and such inclusion is unsatisfactory to Buyer, in Buyer’s sole subjective discretion, Buyer may terminate, on or before Record Title CBS1-6-21. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 9 of 23 2/14/2023 4:31:18 PM CTMeContracts.com - ©2023 CTM Software Corp. 100 Objection Deadline. Should Buyer receive the Tax Certificate after Record Title Deadline, Buyer, at Buyer’s option, has the Right to Terminate under § 24.1. by Buyer’s Notice to Terminate received by Seller on or before ten days after Buyer’s receipt of the Tax Certificate. If Buyer does not receive the Tax Certificate, or if Buyer’s Notice to Terminate would otherwise be required to be received by Seller after Closing Date, Buyer’s Notice to Terminate must be received by Seller on or before Closing. If Seller does not receive Buyer’s Notice to Terminate within such time, Buyer accepts the provisions of the Tax Certificate and the inclusion of the Property in a special taxing district, if applicable, as satisfactory and Buyer waives any Right to Terminate under this provision. If Buyer’s loan specified in §4.5.3. (Loan Limitations) prohibits Buyer from paying for the Tax Certificate, the Tax Certificate will be paid for by Seller. 8.6. Third Party Right to Purchase/Approve. If any third party has a right to purchase the Property (e.g., right of first refusal on the Property, right to purchase the Property under a lease or an option held by a third party to purchase the Property) or a right of a third party to approve this Contract, Seller must promptly submit this Contract according to the terms and conditions of such right. If the third-party holder of such right exercises its right this Contract will terminate. If the third party’s right to purchase is waived explicitly or expires, or the Contract is approved, this Contract will remain in full force and effect. Seller must promptly notify Buyer in writing of the foregoing. If the third party right to purchase is exercised or approval of this Contract has not occurred on or before Third Party Right to Purchase/Approve Deadline, this Contract will then terminate. Seller will supply to Buyer, in writing, details of any Third Party Right to Purchase the Property on or before the Record Title Deadline. 8.7. Right to Object to Title, Resolution. Buyer has a right to object or terminate, in Buyer’s sole subjective discretion, based on any title matters including those matters set forth in § 8.2. (Record Title), § 8.3. (Off-Record Title), § 8.5. (Special Taxing District) and § 13 (Transfer of Title). If Buyer exercises Buyer’s rights to object or terminate based on any such title matter, on or before the applicable deadline, Buyer has the following options: 8.7.1. Title Objection, Resolution. If Seller receives Buyer’s written notice objecting to any title matter (Notice of Title Objection) on or before the applicable deadline and if Buyer and Seller have not agreed to a written settlement thereof on or before Title Resolution Deadline, this Contract will terminate on the expiration of Title Resolution Deadline, unless Seller receives Buyer’s written withdrawal of Buyer’s Notice of Title Objection (i.e., Buyer’s written notice to waive objection to such items and waives the Right to Terminate for that reason), on or before expiration of Title Resolution Deadline. If either the Record Title Deadline or the Off-Record Title Deadline, or both, are extended pursuant to § 8.2. (Record Title) or § 8.3. (Off-Record Title) the Title Resolution Deadline also will be automatically extended to the earlier of Closing or fifteen days after Buyer’s receipt of the applicable documents; or 8.7.2. Title Objection, Right to Terminate. Buyer may exercise the Right to Terminate under § 24.1., on or before the applicable deadline, based on any title matter unsatisfactory to Buyer, in Buyer’s sole subjective discretion. 8.8. Title Advisory. The Title Documents affect the title, ownership and use of the Property and should be reviewed carefully. Additionally, other matters not reflected in the Title Documents may affect the title, ownership and use of the Property, including, without limitation, boundary lines and encroachments, set-back requirements, area, zoning, building code violations, unrecorded easements and claims of easements, leases and other unrecorded agreements, water on or under the Property and various laws and governmental regulations concerning land use, development and environmental matters. 8.8.1. OIL, GAS, WATER AND MINERAL DISCLOSURE. THE SURFACE ESTATE OF THE PROPERTY MAY BE OWNED SEPARATELY FROM THE UNDERLYING MINERAL ESTATE AND TRANSFER OF THE SURFACE ESTATE MAY NOT NECESSARILY INCLUDE TRANSFER OF THE MINERAL ESTATE OR WATER RIGHTS. THIRD PARTIES MAY OWN OR LEASE INTERESTS IN OIL, GAS, OTHER MINERALS, GEOTHERMAL ENERGY OR WATER ON OR UNDER THE SURFACE OF THE PROPERTY, WHICH INTERESTS MAY GIVE THEM RIGHTS TO ENTER AND USE THE SURFACE OF THE PROPERTY TO ACCESS THE MINERAL ESTATE, OIL, GAS OR WATER. 8.8.2. SURFACE USE AGREEMENT. THE USE OF THE SURFACE ESTATE OF THE PROPERTY TO ACCESS THE OIL, GAS OR MINERALS MAY BE GOVERNED BY A SURFACE USE AGREEMENT, A MEMORANDUM OR OTHER NOTICE OF WHICH MAY BE RECORDED WITH THE COUNTY CLERK AND RECORDER. CBS1-6-21. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 10 of 23 2/14/2023 4:31:18 PM CTMeContracts.com - ©2023 CTM Software Corp. 101 8.8.3. OIL AND GAS ACTIVITY. OIL AND GAS ACTIVITY THAT MAY OCCUR ON OR ADJACENT TO THE PROPERTY MAY INCLUDE, BUT IS NOT LIMITED TO, SURVEYING, DRILLING, WELL COMPLETION OPERATIONS, STORAGE, OIL AND GAS, OR PRODUCTION FACILITIES, PRODUCING WELLS, REWORKING OF CURRENT WELLS AND GAS GATHERING AND PROCESSING FACILITIES. 8.8.4. ADDITIONAL INFORMATION. BUYER IS ENCOURAGED TO SEEK ADDITIONAL INFORMATION REGARDING OIL AND GAS ACTIVITY ON OR ADJACENT TO THE PROPERTY, INCLUDING DRILLING PERMIT APPLICATIONS. THIS INFORMATION MAY BE AVAILABLE FROM THE COLORADO OIL AND GAS CONSERVATION COMMISSION. 8.8.5. Title Insurance Exclusions. Matters set forth in this Section and others, may be excepted, excluded from, or not covered by the owner’s title insurance policy. 8.9. Mineral Rights Review. Buyer Does Does Not have a Right to Terminate if examination of the Mineral Rights is unsatisfactory to Buyer on or before the Mineral Rights Examination Deadline. 9. NEW ILC, NEW SURVEY. 9.1. New ILC or New Survey. If the box is checked, (1) New Improvement Location Certificate (New ILC); or, (2) New Survey in the form of n/a; is required and the following will apply: 9.1.1. Ordering of New ILC or New Survey. Seller Buyer will order the New ILC or New Survey. The New ILC or New Survey may also be a previous ILC or survey that is in the above-required form, certified and updated as of a date after the date of this Contract. 9.1.2. Payment for New ILC or New Survey. The cost of the New ILC or New Survey will be paid, on or before Closing, by: Seller Buyer or: n/a 9.1.3. Delivery of New ILC or New Survey. Buyer, Seller, the issuer of the Title Commitment (or the provider of the opinion of title if an Abstract of Title) and n/a will receive a New ILC or New Survey on or before New ILC or New Survey Deadline. 9.1.4. Certification of New ILC or New Survey. The New ILC or New Survey will be certified by the surveyor to all those who are to receive the New ILC or New Survey. 9.2. Buyer’s Right to Waive or Change New ILC or New Survey Selection. Buyer may select a New ILC or New Survey different than initially specified in this Contract if there is no additional cost to Seller or change to the New ILC or New Survey Objection Deadline. Buyer may, in Buyer’s sole subjective discretion, waive a New ILC or New Survey if done prior to Seller incurring any cost for the same. 9.3. New ILC or New Survey Objection. Buyer has the right to review and object based on the New ILC or New Survey. If the New ILC or New Survey is not timely received by Buyer or is unsatisfactory to Buyer, in Buyer’s sole subjective discretion, Buyer may, on or before New ILC or New Survey Objection Deadline, notwithstanding § 8.3. or § 13: 9.3.1. Notice to Terminate. Notify Seller in writing, pursuant to § 24.1, that this Contract is terminated; or 9.3.2. New ILC or New Survey Objection. Deliver to Seller a written description of any matter that was to be shown or is shown in the New ILC or New Survey that is unsatisfactory and that Buyer requires Seller to correct. 9.3.3. New ILC or New Survey Resolution. If a New ILC or New Survey Objection is received by Seller, on or before New ILC or New Survey Objection Deadline and if Buyer and Seller have not agreed in writing to a settlement thereof on or before New ILC or New Survey Resolution Deadline, this Contract will terminate on expiration of the New ILC or New Survey Resolution Deadline, unless Seller receives Buyer’s written withdrawal of the New ILC or New Survey Objection before such termination (i.e., on or before expiration of New ILC or New Survey Resolution Deadline). DISCLOSURE, INSPECTION AND DUE DILIGENCE CBS1-6-21. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 11 of 23 2/14/2023 4:31:18 PM CTMeContracts.com - ©2023 CTM Software Corp. 102 10. PROPERTY DISCLOSURE, INSPECTION, INDEMNITY, INSURABILITY, DUE DILIGENCE AND SOURCE OF WATER. 10.1. Seller’s Property Disclosure. On or before Seller’s Property Disclosure Deadline , Seller agrees to deliver to Buyer the most current version of the applicable Colorado Real Estate Commission’s Seller’s Property Disclosure form completed by Seller to Seller’s actual knowledge and current as of the date of this Contract. 10.2. Disclosure of Adverse Material Facts; Subsequent Disclosure; Present Condition. Seller must disclose to Buyer any adverse material facts actually known by Seller as of the date of this Contract. Seller agrees that disclosure of adverse material facts will be in writing. In the event Seller discovers an adverse material fact after the date of this Contract, Seller must timely disclose such adverse fact to Buyer. Buyer has the Right to Terminate based on the Seller’s new disclosure on the earlier of Closing or five days after Buyer’s receipt of the new disclosure. Except as otherwise provided in this Contract, Buyer acknowledges that Seller is conveying the Property to Buyer in an “As Is” condition, “Where Is” and “With All Faults.” 10.3. Inspection. Unless otherwise provided in this Contract, Buyer, acting in good faith, has the right to have inspections (by one or more third parties, personally or both) of the Property, Leased Items, and Inclusions (Inspection), at Buyer’s expense. If (1) the physical condition of the Property, including, but not limited to, the roof, walls, structural integrity of the Property, the electrical, plumbing, HVAC and other mechanical systems of the Property, (2) the physical condition of the Inclusions and Leased Items, (3) service to the Property (including utilities and communication services), systems and components of the Property (e.g., heating and plumbing), (4) any proposed or existing transportation project, road, street or highway, or (5) any other activity, odor or noise (whether on or off the Property) and its effect or expected effect on the Property or its occupants is unsatisfactory, in Buyer’s sole subjective discretion, Buyer may: 10.3.1. Inspection Termination. On or before the Inspection Termination Deadline, notify Seller in writing, pursuant to § 24.1., that this Contract is terminated due to any unsatisfactory condition, provided the Buyer did not previously deliver an Inspection Objection. Buyer’s Right to Terminate under this provision expires upon delivery of an Inspection Objection to Seller pursuant to § 10.3.2.; or 10.3.2. Inspection Objection. On or before the Inspection Objection Deadline, deliver to Seller a written description of any unsatisfactory condition that Buyer requires Seller to correct. 10.3.3. Inspection Resolution. If an Inspection Objection is received by Seller, on or before Inspection Objection Deadline and if Buyer and Seller have not agreed in writing to a settlement thereof on or before Inspection Resolution Deadline, this Contract will terminate on Inspection Resolution Deadline unless Seller receives Buyer’s written withdrawal of the Inspection Objection before such termination (i.e., on or before expiration of Inspection Resolution Deadline). Nothing in this provision prohibits the Buyer and the Seller from mutually terminating this Contract before the Inspection Resolution Deadline passes by executing an Earnest Money Release. 10.4. Damage, Liens and Indemnity. Buyer, except as otherwise provided in this Contract or other written agreement between the parties, is responsible for payment for all inspections, tests, surveys, engineering reports, or other reports performed at Buyer’s request (Work) and must pay for any damage that occurs to the Property and Inclusions as a result of such Work. Buyer must not permit claims or liens of any kind against the Property for Work performed on the Property. Buyer agrees to indemnify, protect and hold Seller harmless from and against any liability, damage, cost or expense incurred by Seller and caused by any such Work, claim, or lien. This indemnity includes Seller’s right to recover all costs and expenses incurred by Seller to defend against any such liability, damage, cost or expense, or to enforce this Section, including Seller’s reasonable attorney fees, legal fees and expenses. The provisions of this Section survive the termination of this Contract. This § 10.4. does not apply to items performed pursuant to an Inspection Resolution. 10.5. Insurability. Buyer has the Right to Terminate under § 24.1., on or before Property Insurance Termination Deadline, based on any unsatisfactory provision of the availability, terms and conditions and premium for property insurance (Property Insurance) on the Property, in Buyer’s sole subjective discretion. 10.6. Due Diligence. 10.6.1. Due Diligence Documents. Seller agrees to deliver copies of the following documents CBS1-6-21. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 12 of 23 2/14/2023 4:31:18 PM CTMeContracts.com - ©2023 CTM Software Corp. 103 and information pertaining to the Property and Leased Items (Due Diligence Documents) to Buyer on or before Due Diligence Documents Delivery Deadline: 10.6.1.1. Occupancy Agreements. All current leases, including any amendments or other occupancy agreements, pertaining to the Property. Those leases or other occupancy agreements pertaining to the Property that survive Closing are as follows (Leases): 1. This Contract is subject to the existing Leasehold Agreement in place until August 31, 2023. Buyer shall assume all obligations of the Leasehold Agreement. Seller shall transfer Security Deposit and any prepaid rents to Buyer at Closing. Rents shall be prorated to the Date of Closing. 10.6.1.2. Leased Items Documents. If any lease of personal property (§ 2.5.7., Leased Items) will be transferred to Buyer at Closing, Seller agrees to deliver copies of the leases and information pertaining to the personal property to Buyer on or before Due Diligence Documents Delivery Deadline. Buyer Will Will Not assume the Seller’s obligations under such leases for the Leased Items (§ 2.5.7., Leased Items). 10.6.1.3. Encumbered Inclusions Documents. If any Inclusions owned by Seller are encumbered pursuant to § 2.5.4. (Encumbered Inclusions) above, Seller agrees to deliver copies of the evidence of debt, security and any other documents creating the encumbrance to Buyer on or before Due Diligence Documents Delivery Deadline. Buyer Will Will Not assume the debt on the Encumbered Inclusions (§ 2.5.4., Encumbered Inclusions). 10.6.1.4. Other Documents. Other documents and information: n/a 10.6.2. Due Diligence Documents Review and Objection. Buyer has the right to review and object based on the Due Diligence Documents. If the Due Diligence Documents are not supplied to Buyer or are unsatisfactory, in Buyer’s sole subjective discretion, Buyer may, on or before Due Diligence Documents Objection Deadline: 10.6.2.1. Notice to Terminate. Notify Seller in writing, pursuant to § 24.1., that this Contract is terminated; or 10.6.2.2. Due Diligence Documents Objection. Deliver to Seller a written description of any unsatisfactory Due Diligence Documents that Buyer requires Seller to correct. 10.6.2.3. Due Diligence Documents Resolution. If a Due Diligence Documents Objection is received by Seller, on or before Due Diligence Documents Objection Deadline and if Buyer and Seller have not agreed in writing to a settlement thereof on or before Due Diligence Documents Resolution Deadline, this Contract will terminate on Due Diligence Documents Resolution Deadline unless Seller receives Buyer’s written withdrawal of the Due Diligence Documents Objection before such termination (i.e., on or before expiration of Due Diligence Documents Resolution Deadline). 10.7. Conditional Upon Sale of Property. This Contract is conditional upon the sale and closing of that certain property owned by Buyer and commonly known as None. Buyer has the Right to Terminate under § 24.1. effective upon Seller’s receipt of Buyer’s Notice to Terminate on or before Conditional Sale Deadline if such property is not sold and closed by such deadline. This Section is for the sole benefit of Buyer. If Seller does not receive Buyer’s Notice to Terminate on or before Conditional Sale Deadline, Buyer waives any Right to Terminate under this provision. 10.8. Source of Potable Water (Residential Land and Residential Improvements Only). Buyer Does Does Not acknowledge receipt of a copy of Seller’s Property Disclosure or Source of Water Addendum disclosing the source of potable water for the Property. There is No Well. Buyer Does Does Not acknowledge receipt of a copy of the current well permit. Note to Buyer: SOME WATER PROVIDERS RELY, TO VARYING DEGREES, ON NONRENEWABLE GROUND WATER. YOU MAY WISH TO CONTACT YOUR PROVIDER (OR INVESTIGATE THE DESCRIBED SOURCE) TO DETERMINE THE LONG-TERM SUFFICIENCY OF THE PROVIDER’S WATER SUPPLIES. 10.9. Existing Leases; Modification of Existing Leases; New Leases. [Intentionally Deleted] 10.10. Lead-Based Paint. CBS1-6-21. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 13 of 23 2/14/2023 4:31:18 PM CTMeContracts.com - ©2023 CTM Software Corp. 104 10.10.1. Lead-Based Paint Disclosure. Unless exempt, if the Property includes one or more residential dwellings constructed or a building permit was issued prior to January 1, 1978, for the benefit of Buyer, Seller and all required real estate licensees must sign and deliver to Buyer a completed Lead-Based Paint Disclosure (Sales) form on or before the Lead-Based Paint Disclosure Deadline. If Buyer does not timely receive the Lead-Based Paint Disclosure, Buyer may waive the failure to timely receive the Lead-Based Paint Disclosure, or Buyer may exercise Buyer’s Right to Terminate under § 24.1. by Seller’s receipt of Buyer’s Notice to Terminate on or before the expiration of the Lead-Based Paint Termination Deadline. 10.10.2. Lead-Based Paint Assessment. If Buyer elects to conduct or obtain a risk assessment or inspection of the Property for the presence of Lead-Based Paint or Lead-Based Paint hazards, Buyer has a Right to Terminate under § 24.1. by Seller’s receipt of Buyer’s Notice to Terminate on or before the expiration of the Lead-Based Paint Termination Deadline. Buyer may elect to waive Buyer’s right to conduct or obtain a risk assessment or inspection of the Property for the presence of Lead-Based Paint or Lead-Based Paint hazards. If Seller does not receive Buyer’s Notice to Terminate within such time, Buyer accepts the condition of the Property relative to any Lead-Based Paint as satisfactory and Buyer waives any Right to Terminate under this provision. 10.11. Carbon Monoxide Alarms. Note: If the improvements on the Property have a fuel-fired heater or appliance, a fireplace, or an attached garage and include one or more rooms lawfully used for sleeping purposes (Bedroom), the parties acknowledge that Colorado law requires that Seller assure the Property has an operational carbon monoxide alarm installed within fifteen feet of the entrance to each Bedroom or in a location as required by the applicable building code. 10.12. Methamphetamine Disclosure. If Seller knows that methamphetamine was ever manufactured, processed, cooked, disposed of, used or stored at the Property, Seller is required to disclose such fact. No disclosure is required if the Property was remediated in accordance with state standards and other requirements are fulfilled pursuant to § 25-18.5-102, C.R.S., Buyer further acknowledges that Buyer has the right to engage a certified hygienist or industrial hygienist to test whether the Property has ever been used as a methamphetamine laboratory. Buyer has the Right to Terminate under § 24.1., upon Seller’s receipt of Buyer’s written Notice to Terminate, notwithstanding any other provision of this Contract, based on Buyer’s test results that indicate the Property has been contaminated with methamphetamine, but has not been remediated to meet the standards established by rules of the State Board of Health promulgated pursuant to § 25-18.5-102, C.R.S. Buyer must promptly give written notice to Seller of the results of the test. 11. TENANT ESTOPPEL STATEMENTS. [Intentionally Deleted] Closing Provisions 12. CLOSING DOCUMENTS, INSTRUCTIONS AND CLOSING. 12.1. Closing Documents and Closing Information. Seller and Buyer will cooperate with the Closing Company to enable the Closing Company to prepare and deliver documents required for Closing to Buyer and Seller and their designees. If Buyer is obtaining a loan to purchase the Property, Buyer acknowledges Buyer’s lender is required to provide the Closing Company, in a timely manner, all required loan documents and financial information concerning Buyer’s loan. Buyer and Seller will furnish any additional information and documents required by Closing Company that will be necessary to complete this transaction. Buyer and Seller will sign and complete all customary or reasonably required documents at or before Closing. 12.2. Closing Instructions. Colorado Real Estate Commission’s Closing Instructions Are Are Not executed with this Contract. 12.3. Closing. Delivery of deed from Seller to Buyer will be at closing (Closing). Closing will be on the date specified as the Closing Date or by mutual agreement at an earlier date. At Closing, Seller agrees to deliver a set of keys for the Property to Buyer. The hour and place of Closing will be as designated by Title Company. CBS1-6-21. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 14 of 23 2/14/2023 4:31:18 PM CTMeContracts.com - ©2023 CTM Software Corp. 105 12.4. Disclosure of Settlement Costs. Buyer and Seller acknowledge that costs, quality and extent of service vary between different settlement service providers (e.g., attorneys, lenders, inspectors and title companies). 12.5. Assignment of Leases. Seller must assign to Buyer all Leases at Closing that will continue after Closing and Buyer must assume Seller’s obligations under such Leases. Further, Seller must transfer to Buyer all Leased Items and assign to Buyer such leases for the Leased Items accepted by Buyer pursuant to § 2.5.7. (Leased Items). 13. TRANSFER OF TITLE. Subject to Buyer’s compliance with the terms and provisions of this Contract, including the tender of any payment due at Closing, Seller must execute and deliver the following good and sufficient deed to Buyer, at Closing: special warranty deed general warranty deed bargain and sale deed quit claim deed personal representative’s deed n/a deed. Seller, provided another deed is not selected, must execute and deliver a good and sufficient special warranty deed to Buyer, at Closing. Unless otherwise specified in § 29 (Additional Provisions), if title will be conveyed using a special warranty deed or a general warranty deed, title will be conveyed “subject to statutory exceptions” as defined in §38-30-113(5)(a), C.R.S. 14. PAYMENT OF LIENS AND ENCUMBRANCES. Unless agreed to by Buyer in writing, any amounts owed on any liens or encumbrances securing a monetary sum against the Property and Inclusions, including any governmental liens for special improvements installed as of the date of Buyer’s signature hereon, whether assessed or not, and previous years’ taxes, will be paid at or before Closing by Seller from the proceeds of this transaction or from any other source. 15. CLOSING COSTS, FEES, ASSOCIATION STATUS LETTER AND DISBURSEMENTS, TAXES AND WITHHOLDING. 15.1. Closing Costs. Buyer and Seller must pay, in Good Funds, their respective closing costs and all other items required to be paid at Closing, except as otherwise provided herein. However, if Buyer’s loan specified in §4.5.3. (Loan Limitations) prohibits Buyer from paying for any of the fees contained in this Section, the fees will be paid for by Seller. 15.2. Closing Services Fee. The fee for real estate closing services must be paid at Closing by Buyer Seller One-Half by Buyer and One-Half by Seller Other n/a. 15.3. Association Fees and Required Disbursements. At least fourteen days prior to Closing Date, Seller agrees to promptly request that the Closing Company or the Association deliver to Buyer a current Status Letter, if applicable. Any fees associated with or specified in the Status Letter will be paid as follows: 15.3.1. Status Letter Fee. Any fee incident to the issuance of Association’s Status Letter must be paid by Buyer Seller One-Half by Buyer and One-Half by Seller N/A. 15.3.2. Record Change Fee. Any Record Change Fee must be paid by Buyer Seller One-Half by Buyer and One-Half by Seller N/A. 15.3.3. Assessments, Reserves or Working Capital. All assessments required to be paid in advance (other than Association Assessments as defined in § 16.2. (Association Assessments), reserves or working capital due at Closing must be paid by Buyer Seller One-Half by Buyer and One-Half by Seller N/A. 15.3.4. Other Fees. Any other fee listed in the Status Letter as required to be paid at Closing will be paid by Buyer Seller One-Half by Buyer and One-Half by Seller N/A. 15.4. Local Transfer Tax. Any Local Transfer Tax must be paid at Closing by Buyer Seller One-Half by Buyer and One-Half by Seller N/A. 15.5. Sales and Use Tax. Any sales and use tax that may accrue because of this transaction must be paid when due by Buyer Seller One-Half by Buyer and One-Half by Seller N/A. 15.6. Private Transfer Fee. Any private transfer fees and other fees due to a transfer of the Property, payable at Closing, such as community association fees, developer fees and foundation fees, must be paid at Closing by Buyer Seller One-Half by Buyer and One-Half by Seller N/A. CBS1-6-21. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 15 of 23 2/14/2023 4:31:18 PM CTMeContracts.com - ©2023 CTM Software Corp. 106 15.7. Water Transfer Fees. Water Transfer Fees can change. The fees, as of the date of this Contract, do not exceed $n/a for: Water Stock/Certificates Water District Augmentation Membership Small Domestic Water Company n/a and must be paid at Closing by Buyer Seller One-Half by Buyer and One-Half by Seller N/A. 15.8. Utility Transfer Fees. Utility transfer fees can change. Any fees to transfer utilities from Seller to Buyer must be paid by Buyer Seller One-Half by Buyer and One-Half by Seller N/A. 15.9. FIRPTA and Colorado Withholding. 15.9.1. FIRPTA. The Internal Revenue Service (IRS) may require a substantial portion of the Seller’s proceeds be withheld after Closing when Seller is a foreign person. If required withholding does not occur, the Buyer could be held liable for the amount of the Seller’s tax, interest and penalties. If the box in this Section is checked, Seller represents that Seller IS a foreign person for purposes of U.S. income taxation. If the box in this Section is not checked, Seller represents that Seller is not a foreign person for purposes of U.S. income taxation. Seller agrees to cooperate with Buyer and Closing Company to provide any reasonably requested documents to verify Seller’s foreign person status. If withholding is required, Seller authorizes Closing Company to withhold such amount from Seller’s proceeds. Seller should inquire with Seller’s tax advisor to determine if withholding applies or if an exemption exists. 15.9.2. Colorado Withholding. The Colorado Department of Revenue may require a portion of the Seller’s proceeds be withheld after Closing when Seller will not be a Colorado resident after Closing, if not otherwise exempt. Seller agrees to cooperate with Buyer and Closing Company to provide any reasonably requested documents to verify Seller’s status. If withholding is required, Seller authorizes Closing Company to withhold such amount from Seller’s proceeds. Seller should inquire with Seller’s tax advisor to determine if withholding applies or if an exemption exists. 16. PRORATIONS AND ASSOCIATION ASSESSMENTS. 16.1. Prorations. The following will be prorated to the Closing Date, except as otherwise provided: 16.1.1. Taxes. Personal property taxes, if any, special taxing district assessments, if any, and general real estate taxes for the year of Closing, based on Taxes for the Calendar Year Immediately Preceding Closing Most Recent Mill Levy and Most Recent Assessed Valuation, adjusted by any applicable qualifying seniors property tax exemption, qualifying disabled veteran exemption or Other n/a 16.1.2. Rents. Rents based on Rents Actually Received Accrued. At Closing, Seller will transfer or credit to Buyer the security deposits for all Leases assigned to Buyer, or any remainder after lawful deductions, and notify all tenants in writing of such transfer and of the transferee’s name and address. 16.1.3. Other Prorations. Water and sewer charges, propane, interest on continuing loan and n/a 16.1.4. Final Settlement. Unless otherwise specified in Additional Provisions, these prorations are final. 16.2. Association Assessments. Current regular Association assessments and dues (Association Assessments) paid in advance will be credited to Seller at Closing. Cash reserves held out of the regular Association Assessments for deferred maintenance by the Association will not be credited to Seller except as may be otherwise provided by the Governing Documents. Buyer acknowledges that Buyer may be obligated to pay the Association, at Closing, an amount for reserves or working capital. Any special assessment assessed prior to Closing Date by the Association will be the obligation of Buyer Seller. Except however, any special assessment by the Association for improvements that have been installed as of the date of Buyer’s signature hereon, whether assessed prior to or after Closing, will be the obligation of Seller unless otherwise specified in Additional Provisions. Seller represents there are no unpaid regular or special assessments against the Property except the current regular assessments and n/a Association Assessments are subject to change as provided in the Governing Documents. CBS1-6-21. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 16 of 23 2/14/2023 4:31:18 PM CTMeContracts.com - ©2023 CTM Software Corp. 107 17. POSSESSION. Possession of the Property and Inclusions will be delivered to Buyer on Possession Date at Possession Time, subject to the Leases as set forth in § 10.6.1.1. and, if applicable, any Post-Closing Occupancy Agreement. If Seller, after Closing occurs, fails to deliver possession as specified, Seller will be subject to eviction and will be additionally liable to Buyer, notwithstanding § 20.2. (If Seller is in Default), for payment of $ 100.00 per day (or any part of a day notwithstanding § 3.3., Day) from Possession Date and Possession Time until possession is delivered. Buyer represents that Buyer will occupy the Property as Buyer’s principal residence unless the following box is checked, then Buyer Does Not represent that Buyer will occupy the Property as Buyer’s principal residence. If the box is checked, Buyer and Seller agree to execute a Post-Closing Occupancy Agreement. General Provisions 18. CAUSES OF LOSS, INSURANCE; DAMAGE TO INCLUSIONS AND SERVICES; CONDEMNATION; AND WALK-THROUGH. Except as otherwise provided in this Contract, the Property, Inclusions or both will be delivered in the condition existing as of the date of this Contract, ordinary wear and tear excepted. 18.1. Causes of Loss, Insurance. In the event the Property or Inclusions are damaged by fire, other perils or causes of loss prior to Closing (Property Damage) in an amount of not more than ten percent of the total Purchase Price and if the repair of the damage will be paid by insurance (other than the deductible to be paid by Seller), then Seller, upon receipt of the insurance proceeds, will use Seller’s reasonable efforts to repair the Property before Closing Date. Buyer has the Right to Terminate under § 24.1., on or before Closing Date, if the Property is not repaired before Closing Date, or if the damage exceeds such sum. Should Buyer elect to carry out this Contract despite such Property Damage, Buyer is entitled to a credit at Closing for all insurance proceeds that were received by Seller (but not the Association, if any) resulting from damage to the Property and Inclusions, plus the amount of any deductible provided for in the insurance policy. This credit may not exceed the Purchase Price. In the event Seller has not received the insurance proceeds prior to Closing, the parties may agree to extend the Closing Date to have the Property repaired prior to Closing or, at the option of Buyer, (1) Seller must assign to Buyer the right to the proceeds at Closing, if acceptable to Seller’s insurance company and Buyer’s lender; or (2) the parties may enter into a written agreement prepared by the parties or their attorney requiring the Seller to escrow at Closing from Seller’s sale proceeds the amount Seller has received and will receive due to such damage, not exceeding the total Purchase Price, plus the amount of any deductible that applies to the insurance claim. 18.2. Damage, Inclusions and Services. Should any Inclusion or service (including utilities and communication services), system, component or fixture of the Property (collectively Service) (e.g., heating or plumbing), fail or be damaged between the date of this Contract and Closing or possession, whichever is earlier, then Seller is liable for the repair or replacement of such Inclusion or Service with a unit of similar size, age and quality, or an equivalent credit, but only to the extent that the maintenance or replacement of such Inclusion or Service is not the responsibility of the Association, if any, less any insurance proceeds received by Buyer covering such repair or replacement. If the failed or damaged Inclusion or Service is not repaired or replaced on or before Closing or possession, whichever is earlier, Buyer has the Right to Terminate under § 24.1., on or before Closing Date, or, at the option of Buyer, Buyer is entitled to a credit at Closing for the repair or replacement of such Inclusion or Service. Such credit must not exceed the Purchase Price. If Buyer receives such a credit, Seller’s right for any claim against the Association, if any, will survive Closing. 18.3. Condemnation. In the event Seller receives actual notice prior to Closing that a pending condemnation action may result in a taking of all or part of the Property or Inclusions, Seller must promptly notify Buyer, in writing, of such condemnation action. Buyer has the Right to Terminate under § 24.1., on or before Closing Date, based on such condemnation action, in Buyer’s sole subjective discretion. Should Buyer elect to consummate this Contract despite such diminution of value to the Property and Inclusions, Buyer is entitled to a credit at Closing for all condemnation proceeds awarded to Seller for the diminution in the value of the Property or Inclusions, but such credit will not include relocation benefits or expenses or CBS1-6-21. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 17 of 23 2/14/2023 4:31:18 PM CTMeContracts.com - ©2023 CTM Software Corp. 108 exceed the Purchase Price. 18.4. Walk-Through and Verification of Condition. Buyer, upon reasonable notice, has the right to walk through the Property prior to Closing to verify that the physical condition of the Property and Inclusions complies with this Contract. 18.5. Home Warranty. Seller and Buyer are aware of the existence of pre-owned home warranty programs that may be purchased and may cover the repair or replacement of such Inclusions. 19. RECOMMENDATION OF LEGAL AND TAX COUNSEL. By signing this Contract, Buyer and Seller acknowledge that their respective broker has advised that this Contract has important legal consequences and has recommended: (1) legal examination of title; (2) consultation with legal and tax or other counsel before signing this Contract as this Contract may have important legal and tax implications; (3) to consult with their own attorney if Water Rights, Mineral Rights or Leased Items are included or excluded in the sale; and (4) to consult with legal counsel if there are other matters in this transaction for which legal counsel should be engaged and consulted. Such consultations must be done timely as this Contract has strict time limits, including deadlines, that must be complied with. 20. TIME OF ESSENCE, DEFAULT AND REMEDIES. Time is of the essence for all dates and deadlines in this Contract. This means that all dates and deadlines are strict and absolute. If any payment due, including Earnest Money, is not paid, honored or tendered when due, or if any obligation is not performed timely as provided in this Contract or waived, the non-defaulting party has the following remedies: 20.1. If Buyer is in Default: 20.1.1. Specific Performance. Seller may elect to cancel this Contract and all Earnest Money (whether or not paid by Buyer) will be paid to Seller and retained by Seller. It is agreed that the Earnest Money is not a penalty, and the Parties agree the amount is fair and reasonable. Seller may recover such additional damages as may be proper. Alternatively, Seller may elect to treat this Contract as being in full force and effect and Seller has the right to specific performance or damages, or both. 20.1.2. Liquidated Damages, Applicable. This § 20.1.2. applies unless the box in § 20.1.1. is checked. Seller may cancel this Contract. All Earnest Money (whether or not paid by Buyer) will be paid to Seller and retained by Seller. It is agreed that the Earnest Money amount specified in § 4.1. is LIQUIDATED DAMAGES and not a penalty, which amount the parties agree is fair and reasonable and (except as provided in §§ 10.4. and 21), such amount is SELLER’S ONLY REMEDY for Buyer’s failure to perform the obligations of this Contract. Seller expressly waives the remedies of specific performance and additional damages. 20.2. If Seller is in Default: 20.2.1. Specific Performance, Damages or Both. Buyer may elect to treat this Contract as canceled, in which case all Earnest Money received hereunder will be returned to Buyer and Buyer may recover such damages as may be proper. Alternatively, in addition to the per diem in § 17 (Possession) for failure of Seller to timely deliver possession of the Property after Closing occurs, Buyer may elect to treat this Contract as being in full force and effect and Buyer has the right to specific performance or damages, or both. 20.2.2. Seller’s Failure to Perform. In the event Seller fails to perform Seller’s obligations under this Contract, to include, but not limited to, failure to timely disclose Association violations known by Seller, failure to perform any replacements or repairs required under this Contract or failure to timely disclose any known adverse material facts, Seller remains liable for any such failures to perform under this Contract after Closing. Buyer’s rights to pursue the Seller for Seller’s failure to perform under this Contract are reserved and survive Closing. 21. LEGAL FEES, COST AND EXPENSES. Anything to the contrary herein notwithstanding, in the event of any arbitration or litigation relating to this Contract, prior to or after Closing Date, the arbitrator or court must award to the prevailing party all reasonable costs and expenses, including attorney fees, legal fees and expenses. 22. MEDIATION. If a dispute arises relating to this Contract (whether prior to or after Closing) and is not CBS1-6-21. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 18 of 23 2/14/2023 4:31:18 PM CTMeContracts.com - ©2023 CTM Software Corp. 109 resolved, the parties must first proceed, in good faith, to mediation. Mediation is a process in which the parties meet with an impartial person who helps to resolve the dispute informally and confidentially. Mediators cannot impose binding decisions. Before any mediated settlement is binding, the parties to the dispute must agree to the settlement, in writing. The parties will jointly appoint an acceptable mediator and will share equally in the cost of such mediation. The obligation to mediate, unless otherwise agreed, will terminate if the entire dispute is not resolved within thirty days of the date written notice requesting mediation is delivered by one party to the other at that party’s last known address (physical or electronic as provided in § 26). Nothing in this Section prohibits either party from filing a lawsuit and recording a lis pendens affecting the Property, before or after the date of written notice requesting mediation. This Section will not alter any date in this Contract, unless otherwise agreed. 23. EARNEST MONEY DISPUTE. Except as otherwise provided herein, Earnest Money Holder must release the Earnest Money following receipt of written mutual instructions, signed by both Buyer and Seller. In the event of any controversy regarding the Earnest Money, Earnest Money Holder is not required to release the Earnest Money. Earnest Money Holder, in its sole subjective discretion, has several options: (1) wait for any proceeding between Buyer and Seller; (2) interplead all parties and deposit Earnest Money into a court of competent jurisdiction (Earnest Money Holder is entitled to recover court costs and reasonable attorney and legal fees incurred with such action); or (3) provide notice to Buyer and Seller that unless Earnest Money Holder receives a copy of the Summons and Complaint or Claim (between Buyer and Seller) containing the case number of the lawsuit (Lawsuit) within one hundred twenty days of Earnest Money Holder’s notice to the parties, Earnest Money Holder is authorized to return the Earnest Money to Buyer. In the event Earnest Money Holder does receive a copy of the Lawsuit and has not interpled the monies at the time of any Order, Earnest Money Holder must disburse the Earnest Money pursuant to the Order of the Court. The parties reaffirm the obligation of § 22 (Mediation). This Section will survive cancellation or termination of this Contract. 24. TERMINATION. 24.1. Right to Terminate. If a party has a right to terminate, as provided in this Contract (Right to Terminate), the termination is effective upon the other party’s receipt of a written notice to terminate (Notice to Terminate), provided such written notice was received on or before the applicable deadline specified in this Contract. If the Notice to Terminate is not received on or before the specified deadline, the party with the Right to Terminate accepts the specified matter, document or condition as satisfactory and waives the Right to Terminate under such provision. 24.2. Effect of Termination. In the event this Contract is terminated, and all Earnest Money received hereunder is timely returned to Buyer, the parties are relieved of all obligations hereunder, subject to §§ 10.4. and 21. 25. ENTIRE AGREEMENT, MODIFICATION, SURVIVAL; SUCCESSORS. This Contract, its exhibits and specified addenda, constitute the entire agreement between the parties relating to the subject hereof and any prior agreements pertaining thereto, whether oral or written, have been merged and integrated into this Contract. No subsequent modification of any of the terms of this Contract is valid, binding upon the parties, or enforceable unless made in writing and signed by the parties. Any right or obligation in this Contract that, by its terms, exists or is intended to be performed after termination or Closing survives the same. Any successor to a party receives the predecessor’s benefits and obligations of this Contract. 26. NOTICE, DELIVERY AND CHOICE OF LAW. 26.1. Physical Delivery and Notice. Any document or notice to Buyer or Seller must be in writing, except as provided in § 26.2. and is effective when physically received by such party, any individual named in this Contract to receive documents or notices for such party, Broker, or Brokerage Firm of Broker working with such party (except any notice or delivery after Closing must be received by the party, not Broker or Brokerage Firm). 26.2. Electronic Notice. As an alternative to physical delivery, any notice may be delivered in CBS1-6-21. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 19 of 23 2/14/2023 4:31:18 PM CTMeContracts.com - ©2023 CTM Software Corp. 110 electronic form to Buyer or Seller, any individual named in this Contract to receive documents or notices for such party, Broker or Brokerage Firm of Broker working with such party (except any notice or delivery after Closing, cancellation or Termination must be received by the party, not Broker or Brokerage Firm) at the electronic address of the recipient by facsimile, email or Internet/electronic signatures. 26.3. Electronic Delivery. Electronic Delivery of documents and notice may be delivered by: (1) email at the email address of the recipient, (2) a link or access to a website or server provided the recipient receives the information necessary to access the documents, or (3) facsimile at the facsimile number (Fax No.) of the recipient. 26.4. Choice of Law. This Contract and all disputes arising hereunder are governed by and construed in accordance with the laws of the State of Colorado that would be applicable to Colorado residents who sign a contract in Colorado for real property located in Colorado. 27. NOTICE OF ACCEPTANCE, COUNTERPARTS. This proposal will expire unless accepted in writing, by Buyer and Seller, as evidenced by their signatures below and the offering party receives notice of such acceptance pursuant to § 26 on or before Acceptance Deadline Date and Acceptance Deadline Time. If accepted, this document will become a contract between Seller and Buyer. A copy of this Contract may be executed by each party, separately and when each party has executed a copy thereof, such copies taken together are deemed to be a full and complete contract between the parties. 28. GOOD FAITH. Buyer and Seller acknowledge that each party has an obligation to act in good faith including, but not limited to, exercising the rights and obligations set forth in the provisions of Financing Conditions and Obligations; Title Insurance, Record Title and Off-Record Title; New ILC, New Survey; and Property Disclosure, Inspection, Indemnity, Insurability Due Diligence and Source of Water. ADDITIONAL PROVISIONS AND ATTACHMENTS 29. ADDITIONAL PROVISIONS. (The following additional provisions have not been approved by the Colorado Real Estate Commission.) 1. This Contract to Buy and Sell Real Estate is conditioned and contingent upon the Vail Town Council granting authorization to proceed with the purchase of the Property described in Section 1, subject to the terms of the Contract. Authorization to proceed shall be by consideration of a Vail Town Council Resolution on February 21, 2023." and "Section 15.4. Local Transfer Tax: The buyer, The Town of Vail, agrees to forgo the 1% Town of Vail Transfer Tax on the sale of this property. Both Buyer and Seller shall have no obligation to pay the 1% Town of Vail Transfer Tax at the time of closing. 2. Total commission is 3% of the purchase price. Buyer & Seller agree 1% Seller & 2% Buyer. 3. Seller agrees to withhold an additional $1,000.00 for the security deposit on behalf of the tenant in an escrow account held at Land Title. Money shall be released on September 1, 2023, or earlier upon instructions from Buyer. 30. OTHER DOCUMENTS. 30.1. Documents Part of Contract. The following documents are a part of this Contract: 30.1.1. Post-Closing Occupancy Agreement. If the Post-Closing Occupancy Agreement box is checked in § 17 the Post-Closing Occupancy Agreement is a part of this Contract. CBS1-6-21. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 20 of 23 2/14/2023 4:31:18 PM CTMeContracts.com - ©2023 CTM Software Corp. 111 n/a 30.2. Documents Not Part of Contract. The following documents have been provided but are not a part of this Contract: n/a Signatures Date:2/14/2023 Buyer: Town of Vail By: Russell Forrest, Town Manager [NOTE: If this offer is being countered or rejected, do not sign this document.] Date:2/14/2023 Seller: Steve Moore Date:2/14/2023 Seller: Dennie. L. Moore END OF CONTRACT TO BUY AND SELL REAL ESTATE BROKER’S ACKNOWLEDGMENTS AND COMPENSATION DISCLOSURE. A. Broker Working With Buyer Broker Does Does Not acknowledge receipt of Earnest Money deposit. Broker agrees that if Brokerage Firm is the Earnest Money Holder and, except as provided in § 23, if the Earnest Money has not already been returned following receipt of a Notice to Terminate or other written notice of termination, Earnest CBS1-6-21. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 21 of 23 2/14/2023 4:31:18 PM CTMeContracts.com - ©2023 CTM Software Corp. 112 Money Holder will release the Earnest Money as directed by the written mutual instructions. Such release of Earnest Money will be made within five days of Earnest Money Holder’s receipt of the executed written mutual instructions, provided the Earnest Money check has cleared. Broker is working with Buyer as a Buyer’s Agent Transaction-Broker in this transaction. Customer. Broker has no brokerage relationship with Buyer. See § B for Broker’s brokerage relationship with Seller. Brokerage Firm’s compensation or commission is to be paid by Listing Brokerage Firm Buyer Other Seller. This Broker’s Acknowledgements and Compensation Disclosure is for disclosure purposes only and does NOT create any claim for compensation. Any compensation agreement between the brokerage firms must be entered into separately and apart from this provision. Brokerage Firm’s Name: Berkshire Hathaway HomeServices Colorado Properties Brokerage Firm’s License #: EC 28210 Date:2/9/2023 Broker’s Name: Danean Boukather Broker’s License #: FA100000608 Address: 511 E Lionshead Cir Vail, CO 81657 Ph:970-476-2482 Fax: 970-476-6499 Email Address: danean@bhhsvail.net B. Broker Working with Seller Broker Does Does Not acknowledge receipt of Earnest Money deposit. Broker agrees that if Brokerage Firm is the Earnest Money Holder and, except as provided in § 23, if the Earnest Money has not already been returned following receipt of a Notice to Terminate or other written notice of termination, Earnest Money Holder will release the Earnest Money as directed by the written mutual instructions. Such release of Earnest Money will be made within five days of Earnest Money Holder’s receipt of the executed written mutual instructions, provided the Earnest Money check has cleared. Broker is working with Seller as a Seller’s Agent Transaction-Broker in this transaction. Customer. Broker has no brokerage relationship with Seller. See § A for Broker’s brokerage relationship with Buyer. Brokerage Firm’s compensation or commission is to be paid by Seller Buyer Other . This Broker’s Acknowledgements and Compensation Disclosure is for disclosure purposes only and does NOT create any claim for compensation. Any compensation agreement between the brokerage firms must be entered into separately and apart from this provision. CBS1-6-21. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 22 of 23 2/14/2023 4:31:18 PM CTMeContracts.com - ©2023 CTM Software Corp. 113 Brokerage Firm’s Name: Brokerage Firm’s License #: Broker’s Signature ________________________________________ Date: ______________ Broker’s License #: Address: , Ph: Fax: Email Address: CBS1-6-21. CONTRACT TO BUY AND SELL REAL ESTATE (RESIDENTIAL) CTM eContracts - ©2022 MRI Software LLC - All Rights Reserved CBS1-6-21. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 23 of 23 2/14/2023 4:31:18 PM CTMeContracts.com - ©2023 CTM Software Corp. 114 AGENDA ITEM NO. 3.5 Item Cover Page DATE:February 21, 2023 SUBMITTED BY:Greg Hall, Public Works ITEM TYPE:Consent Agenda AGENDA SECTION:Consent Agenda (5 min.) SUBJECT:Resolution No. 8, Series of 2023, A Resolution of the Vail Town Council Approving a Street Cut Permit Pursuant to Section 8-1- 21 Vail Town Code SUGGESTED ACTION:Approve, approve with amendments, or deny Resolution No. 8, Series of 2023. VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: Resolution No. 8 Series of 2023.docx I-70 ROW Exhibit Area2.pdf 115 RESOLUTION NO. 8 Series of 2023 A RESOLUTION OF THE VAIL TOWN COUNCIL APPROVING A STREET CUT PERMIT PURSUANT TO SECTION 8-1-21 VAIL TOWN CODE WHEREAS, Section 8-1-21 of the Vail Town Code prohibits street cut permits to be issued after December 15 unless approved by resolution of the Town Council. WHEREAS, the Town Council wishes to approve a street cut permit to allow for certain work to be performed relating to the property known as West Middle Creek, with a physical address of 305 North Frontage Road West, Vail, Colorado, and more particularly shown in the attached Exhibit A, attached hereto and made a part hereof by this reference (the “Property”). NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: Section 1.The Town Council hereby approves the issuance of a street cut permit for Property. 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 21st day of February, 2023. _________________________ Kimberly Langmaid, Town Mayor ATTEST: _____________________________ Stephanie Bibbens, Town Clerk 116 117 AGENDA ITEM NO. 3.6 Item Cover Page DATE:February 21, 2023 SUBMITTED BY:Chad Salli, Public Works ITEM TYPE:Contract Award AGENDA SECTION:Consent Agenda (5 min.) SUBJECT:Contract Award to A-1 Chipseal for the 2023 Vail Slurry Seal Project SUGGESTED ACTION:Authorize the Town Manager to enter into an agreement, in a form approved by the Town Attorney, with A-1 Chipseal to complete the 2023 Vail Slurry Seal Project in the amount not to exceed $194,842.00. VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: council_memo-slurry.pdf 118 To:Town Council From:Public Works Date:02/21/2023 Subject:2023 Vail Slurry Seal Contract Award I.ITEM/TOPIC 2023 Vail Slurry Seal Contract Award II.ACTION REQUESTED OF COUNCIL Authorize the Town Manager to enter into an agreement with A-1 Chipseal to complete the 2023 Vail Slurry Seal Project. III.BACKGROUND Staff received 2 bids for the 2023 Slurry Seal Project. The project is budgeted with the Capital Street Maintenance budget and is within the engineer’s estimate. Roads included in this year’s asphalt preventive maintenance project are Westhaven Dr, Westhaven Cir, Greenhill Ct, Bald Mountain Rd, Manns Ranch Rd, Booth Falls Rd, Booth Falls Ct, Katsos Ranch Rd, Aspen Ln, Aspen Ct and Booth Creek Dr. The project is scheduled to be completed by June 23, 2023. IV.STAFF RECOMMENDATION Authorize the Town Manager to enter into an agreement, in a form approved by the Town Attorney, with A-1 Chipseal to complete the 2023 Vail Slurry Seal Project in the amount not to exceed $194,842.00. 119 AGENDA ITEM NO. 3.7 Item Cover Page DATE:February 21, 2023 SUBMITTED BY:Stephanie Bibbens, Housing ITEM TYPE:Consent Agenda AGENDA SECTION:Consent Agenda (5 min.) SUBJECT:Contract Award to CMT Technical Services for the Geotechnical Work at West Middle Creek SUGGESTED ACTION:Direct the Town Manager to enter into a contract, as approved by the Town Attorney, with CMT Technical Services in an amount not to exceed $228,500. VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: West Middle Creek Geotechnical Report Contract Award 02212023.pdf 120 To: From: Date: Subject: Vail Town Council George Ruther, Housing Director February 21, 2023 West Middle Creek, Lots 4 & 5 Geotechnical Consultant Contract Award I.SUMMARY The Town of Vail has initiated due diligence for future residential development on Lots 4 & 5 of the Middle Creek Subdivision ("West Middle Creek Parcel"). To facilitate and inform the due diligence and design processes and to determine risks and associated costs related to any residential development, geotechnical investigations are required. Conducting these investigations as soon as practical, weather permitting, is of significant interest and time is of the essence. The town staff recommends contracting with CMT Technical Services. to perform the geotechnical investigations on the West Middle Creek Parcel. The scope of work entails the following: -10 borings ranging 30' to 70' in depth - 4 ground water depth monitored test wells - use of a crane to lift drill boring rigs for access to minimize site disturbance -13 to 15 days of work - all permits and applications required - completion of a final geotechnical report A total of $228,500 would be encumbered in housing funds appropriated to the West Middle Creek Parcel. II.RECOMMENDATION Direct the Town Manager to enter into a contract, in a form approved by the Town Attorney, with CMT Technical Services in an amount not to exceed $228,500. 121 AGENDA ITEM NO. 3.8 Item Cover Page DATE:February 21, 2023 SUBMITTED BY:Beth Markham, Environmental Sustainability ITEM TYPE:Consent Agenda AGENDA SECTION:Consent Agenda (5 min.) SUBJECT:Contract Award to Drop Bike, DBA Drop Mobility for the Shift Bike Regional Electric Bike Share Program SUGGESTED ACTION:Direct the Town Manager to enter into an agreement in a form approved by the town attorney with Drop Bike, DBA Drop Mobility in amount not to exceed $224,000 for the execution of the expanded Shift Bike Regional Electric Bike Share Program in 2023. VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: Shift Bike memo.pdf Shift Bike proposal.pdf 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 AGENDA ITEM NO. 3.9 Item Cover Page DATE:February 21, 2023 SUBMITTED BY:Greg Hall, Public Works ITEM TYPE:Consent Agenda AGENDA SECTION:Consent Agenda (5 min.) SUBJECT:Contract Award to Populous for the Dobson Ice Arena Conceptual Design SUGGESTED ACTION:Authorize the Town Manager to enter into an agreement, in a form approved by the Town Attorney, with Populous Architects to perform conceptual design and cost estimating for the Dobson Ice Arena Renovation Project in the amount of, and not to exceed, $344,600. VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: Dobson Memo.pdf 146 147 148 AGENDA ITEM NO. 3.10 Item Cover Page DATE:February 21, 2023 SUBMITTED BY:Tom Kassmel, Public Works ITEM TYPE:Consent Agenda AGENDA SECTION:Consent Agenda (5 min.) SUBJECT:Contract Award to RoadSafe Traffic Systems Inc. for the 2023 Roadway Striping Maintenance SUGGESTED ACTION:Authorize the Town Manager to enter into an agreement, in a form approved by the Town Attorney, with RoadSafe Traffic Systems Inc. for an amount not to exceed $57,281.40 for the maintenance work for roadway striping for all Town roads. VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: Council Memo 2-21-23.docx 149 To:Town Council From:Public Works Department Date:February 21, 2023 Subject:Vail Roadway Striping Maintenance Contract Award I.SUMMARY Each year the Town publicly bids maintenance work for roadway striping for all Town roads. This work is budgeted within the Capital Street Maintenance budget. This year the Town received two bids for this work; RoadSafe Traffic Systems, Inc.$57,281.40 Kolbe Striping, Inc.$64,954.95 II.RECOMMENDATION Staff recommends awarding the contract to RoadSafe Traffic Systems, Inc in the amount of $57,281.40 in a form approved by the Town Attorney. 150 AGENDA ITEM NO. 4.1 Item Cover Page DATE:February 21, 2023 SUBMITTED BY:Stephanie Bibbens, Town Manager ITEM TYPE:Town Manager Report AGENDA SECTION:Town Manager Report (10 min.) SUBJECT:Council Matters Status Report SUGGESTED ACTION: VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: 230221 Matters.docx 151 COUNCIL MATTERS Status Report Report for Feb. 21, 2023 o Policy for public input time limits: Town Council directed staff and the Town Attorney to draft a resolution outlining policies on public comment, i.e. the “3- minute rule”, pooling time, and public input on appeal hearings. Staff will return with a resolution in a near-term council meeting. o Council Compensation:Town Council directed staff and the Town Attorney to bring back recommendations for updated Council compensation (for future Council members), as well as a mechanism for regular pay adjustments.Staff will return with a resolution in a near-term council meeting. o Parking credit card processor outage: On Saturday, Feb 4th,there was a widespread outage with the credit card processor (Windcave) used by the town for parking operations. Staff estimates a revenue loss of approximately $50K from the disruption. The town has no recourse based on the contract with Windcave (standard protections for the processor). Town staff is actively pursuing answers and solutions from Windcave to prevent future outages. o Hotel Courtesy Vehicles: Vail PD has been made aware of complaints of speeding hotel courtesy vehicles. Town Council Action Plan Updates Each month town staff will update the Town Council Action Plan document as projects and initiatives move forward or are updated. Below is a link to the timeline and “live” document: https://www.vailgov.com/government/town-council-meeting-registration/town-council- priorities Social Media Tracking The social conversation spiked markedly when the Vice report came out, bringing potential impressions to 8.4 million on Feb. 7. Other themes included positive experience and reception of the NBS 50th week in Vail as well as congratulatory remarks around Marka Moser’s Trailblazer Award. There was also quite a bit of conversation around the e-bike fire and catalytic converter thefts. Positive posts around the Vail experience and snow conditions continue. Here is the general link: https://share.sproutsocial.com/view/3ceef54d-a6ee-444a-aef5-4da6eee44abe 152 This link focuses on conversations around Bighorn Sheep: https://share.sproutsocial.com/view/5829bead-4075-4ec4-a9be-ad40757ec41c To make the most of Sprout Listening, here are two tips – 1.Under the “Performance” tab, scroll down to sentiment summary and click on the gear icon to toggle the setting to show messages tagged as “Neutral” rather than just “Positive” or “Negative” 2.Under the “Themes” tab scroll down to “Top Messages” and toggle between how the messages are sorted to see top messages by various metrics. Scroll below the first three messages and press “Show More” to see further examples. In the News______________________________________________________ Feb. 2 Investigating The Ski Town Housing Shortage https://snowbrains.com/investigating-the-ski-town-housing-shortage/ 153 Feb 3 Public lands for affordable housing https://www.kunc.org/news/2023-02-03/colorado-considers-using-public-land-for-affordable-housing Feb. 4 Burton event https://www.vaildaily.com/news/vail-looking-at-different-event-strategies-but-burton-event-unlikely- to-be-replaced/ Welcome NBS - letter https://www.vaildaily.com/opinion/letter-welcome-national-brotherhood-of-skiers/ Feb. 6 NBS Opening Ceremonies https://snowbrains.com/national-brotherhood-of-skiers-50th-anniversary-in-vail-co-day-2-opening- ceremony/ Feb. 7 Trailblazer Award https://www.vaildaily.com/news/marka-moser-to-receive-2023-vail-trailblazer-award/ https://www.realvail.com/marka-moser-recognized-by-vail-town-council-with-2023-vail-trailblazer- award/a15437/ Gore Creek Promenade https://www.vaildaily.com/news/vail-to-discuss-the-renewal-of-gore-creek-promenade/ NBS - AIPP https://www.9news.com/article/life/style/colorado-guide/national-brotherhood-skiers-celebrating- diversity-through-art/73-041cb315-5876-4d53-8a33-d3b0dbae0967 Vail 60th Anniversary https://www.niagarathisweek.com/community-story/10849061--i-feel-17-again-a-writer-takes-a-ski- down-memory-lane-and-rediscovers-more-than-her-form/ Feb. 8 NBS https://coloradosun.com/2023/02/08/ski-clubs-national-brotherhood-of-skiers-diversity/ Vice News Story https://www.youtube.com/watch?v=Qk2rS33f-Wk https://unofficialnetworks.com/2023/02/08/vails-war-worker-housing/ Feb. 9 NBS 154 https://www.dailycamera.com/2023/02/09/national-brotherhood-skiers-50-years-black-skiers-vail/ Feb. 10 Vail's big housing goals -front page https://www.vaildaily.com/news/vail-sets-big-tangible-goals-for-employee-housing-in-2023/ Feb. 11 STR Insurance Expands https://www.vaildaily.com/news/vail-expands-accepted-short-term-rental-insurance-types/ Lunch with the Locals https://www.vaildaily.com/news/vail-to-host-lunch-with-the-locals-on-water-use-reduction-tactics/ Feb. 12 Plant Christmas Trees - letter https://www.vaildaily.com/opinion/letter-heres-a-solution-to-booth-heights-boondoggle/ Support Chicken Suit Man - letter https://www.summitdaily.com/opinion/letter-to-the-editor-we-should-support-people-who-protest- vail-resorts/ Feb. 13 Henninger Retirement https://www.realvail.com/vail-police-chief-henninger-retiring/a15464/ Feb. 14 Countywide Housing Assessment https://www.vaildaily.com/news/new-countywide-assessment-takes-inventory-of-housing- opportunities/ Henninger Retirement https://www.vaildaily.com/news/vail-police-chief-announces-retirement/ NBS in Ebony Magazine https://www.ebony.com/inside-an-ebony-editors-getaway-to-the-slopes-of-vail/ Feb. 15 Dobson/Civic Hub -front page https://www.vaildaily.com/news/whats-next-for-vails-civic-hub/ Upcoming Events o Community Meeting – Mar 28 o Mar 31 – Ski with Elected Officials in Vail o June 5-8 - *tentative dates for visit from St. Anton officials 155 AGENDA ITEM NO. 4.2 Item Cover Page DATE:February 21, 2023 SUBMITTED BY:Stephanie Bibbens, Town Manager ITEM TYPE:Town Manager Report AGENDA SECTION:Town Manager Report (10 min.) SUBJECT:Strategic Planning Session Update SUGGESTED ACTION: VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: Strategic Planning Session 021223.docx 156 Town Managers Update February 21, 2023 1. Owners Representative RFP The Town has several significant projects in front of it including but not limited tohousing projects, Town Hall offices, Dobson Ice Rink. Having a qualified owner’s representative that has deep experiencing in procuring architectural/design services, construction services, cost estimating, and managing construction projects will help the Town deliver projects on time and on budget. Staff would like to issue an RFP/RFQ for owner representative services to find a qualified individual or company that can support the Town in its construction servicers. The Dobson Ice Rink project would be the next foreseeable project an owner’s representative would be valuable to have to act as an extension of staff. Also, this resource could help provide consulting serviceson housing projects the Town has planned in the future. Staff would like to find a qualified resources with competitive rates and bring a recommended resource back to the Town Council for your approval. 2. Other Updates The Town Manger may also have other updates to provide the Town Council to ensure timely communication. 3. Strategic Goals and Action Plan The matrix below summarizes the Strategic Goals and actions of the Town Council. The Strategic Goals came from a planning meeting with the Town Council on January 17, 2023. The actions were developed from a planning retreat that was scheduled after the last election. Moving forward updated or changes in status with both goals and actions will be highlighted in red. 157 PRIORITY VAIL TOWN COUNCIL GOALS FOR 2023 PRIORITY CATEGORY ISSUE STATEMENT GOALS NEXT STEPS WHO 1 Housing A severe lack of affordable housing in the Eagle Valley and Vail specifically is threatening our ability to attract and retain employees to support our economy and Community. The Town of Vail will acquire 1,000 additional resident housing deed restrictions by the year 2027 as compared to 2017. By October 1, 2023: 1.Complete the Residences at Main Vail. 2.Initiate the entitlement process for the Timber Ridge and West Middle Creek housing developments. 3.Acquire the East Vail CDOT parcel and initiate the design process. 4.Initiate the acquisition process for one additional parcel of land to create a significant regional housing development. 1.5. Amend the commercial linkage requirements and adopt residential linkage 1. Execute management agreement with RMV property manager. 2. Develop a Letter of Intent with Timber Ridge Developer. 3. Complete conceptual site planning for West Middle Creek. 4. Acquire East Vail CDOT parcel. 5. Work with institutional partners to acquire a significant regional housing site. Housing Director lead, supported by Town Manager & Deputy Manager, Finance Dept, Public Works, Com Dev 2 Civic Hub and Town Hall The Town has $36 million to utilize on public uses in Lionshead which could be used for the implementation of the Civic Hub Plan which must be spent by 2030. Dobson Ice Rink's building systems are failing and need replacement. The Town Hall offices at 75 S. Frontage Rd are at the end of their useful life and either require an investment to renovate or they need to be replaced. By November 1, 2023: 1.Determine a program, budget, and critical path to renovate Dobson Ice Arena so that it will continue to serve Vail for another 40 to 50 years. 2.Determine whether to renovate or relocate Town of Vail offices and if relocated determine best location(s), a budget, and a timeline for relocation or renovation. Note: The Town Manager would request that he be able to work with cultural arts interests to further refine the conceptual design and programs for community uses in addition to Dobson and town offices on the hub site 1. Execute design contract with Populous (recommended design team for Dobson). 2. Develop alternative scenarios for locating and/or refurbishing Town offices and provide recommendations to Town Council. 3. (Recommended additional task): Facilitate a discussion on high priority cultural/community uses and how they can be finically sustained over time and bring forward recommendations to the Town Council. Public Works Director - Dobson/ Town Manager & Com Dev Director 3 Excellent Customer Service The Town of Vail has the vison of being the premier mountain resort community in the world which requires providing a consistent and excellent customer service for our residents and guests. At this time the Town does not have organizational goals or metrics for the customer service we provide. Providing excellent service requires defining excellent service and creating a working environment that supports organizational effectiveness in providing excellent customer service. By November 1, 2023: 1.Create a clear definition for providing excellent customer service to our residents and guests for town services and a means of measuring to what degree we are providing excellent customer service. 1.2. Identify and implement metrics for objectively measuring organizational effectiveness and health so that a baseline is developed which can be improved on in future years. Work with leadership team to develop customer service goals and metrics. Town Manager and Leadership Team 4 Land Use Regulations Support Town Goals The Town directly influences retaining and creating affordable housing through its land use code. Municipalities can incent and prevent the creation of affordable housing through its land use code. Also simply improving the efficiency of the development review process to ensure quality development which meets the Towns standards while reducing process time reduces cost for both public and private projects. A periodic review of the land use is a recommended best management practice. By November 1, 2023: Review and analyze Title 12 Zoning, the Official Zoning Map, Title 14 Development Standards, and other pertinent land use policy language including the Town of Vail Comprehensive Plan. Bring forward recommendations for amendments to help foster the creation of affordable housing and improved efficiency of the development review process. 1.Meet with stakeholders (builders, developers, community members, PEC, DRB) and request feedback. 2.Review existing land use code and develop recommendations to achieve this goal. 3.3. Provide recommendations to PEC and Council for consideration and adoption. Community Development Director, Public Works Director, Fire Chief 158 Vail Town Council Action Plan PROJECT MILESTONE UPDATES POINT of CONTACT COMMUNITY West Vail Master Plan Implementation Phase 1, Housing: Implementation of recommendations in Chapter 3, WVMP. May 2022 – April 2023. Update to Council on March 6, 2023. Phase 2, West Vail Center: Implementation of recommendations in Chapter 2, WVMP. May 2023 – Sept. 2023. Update to Council May 15, 2023. Phase 3, Transportation & Mobility: Implement recommendations in Chapter 4, WVMP. Coordinate implementation timeline in context of town-wide Transportation Master Plan. George Ruther, Director of Housing Timber Ridge Apartments Redevelopment Aug. 1, 2023 Updated market study, design development, and entitlement approval process to redevelop Timber Ridge Village Apartments. Spring 2024 Construction begins. Feb. 1 – Apr. 1, 2025 New units expected to be completed and available for phased occupancy. George Ruther, Director of Housing Ford Park Master Plan Amendments Ford Park Master Plan Amendments Todd Oppenheimer, Capital Projects Manager Short Term Rental Policy Amendments Jan. 1, 2023 Effective implementation date of Ordinance No. 11, Series of 2022. Feb. 28, 2023 STR license renewal deadline. Carlie Smith, Finance Director Early Childhood Initiatives Throughout 2023: Continued funding in 2023 for same four identified areas including: tuition assistance for Vail’s families, infant subsidy to maintain infant care in Vail (part of sustainability of ECE programs), workforce retention grants, and continuing to identify expansion opportunities for ECE options in Vail. Krista Miller, Human Resources Director Cultural Heritage Preservation & Programs 2023 budget is $25,000. February 7 - Resolution establishing process for the Naming or Commemoration of town-owned properties. Partner on Trailblazer Award process. Continued work in 2023: Summervail Archives; Vail Valley Voices; Library's 40th Anniversary. Eagle County celebrates 140 years on February 11. CHC website in need of updates. Lori A. Barnes, Library Services Director Permanent Location for Children’s Garden of Learning Lease at temporary location expires 2026 or earlier pending 180 days’ notice.Kathleen Halloran, Deputy Town Manager Wildland Urban Interface Code Amendments Spring 2023 Town Council update on 2022 Fire Free Five grant program. April-October 2023 Implement 2023 Fire Free Five grant program. Fall 2023 Fire Free Five code adoption consideration. Mark Novak, Fire Chief 159 ENVIRONMENT USFS Booth Creek Fuels Reduction Project Spring 2023 USFS driven second NEPA comment period (will require additional TOV funding). Fall 2023 USFS Record of Decision. Winter 2023/2024 Identify costs/funding based upon EA. 2024-2030 Implementation - timeline is variable due to external factors. Mark Novak, Fire Chief Identify Alternative Fuel Solutions 2022 - First boiler replacement operational. Collecting data on usage.Kristen Bertuglia, Environmental Sustainability Director Sustainable Strategic Plan Jan. – Dec. 2023 Kristen Bertuglia, Environmental Sustainability Director Wildlife Crossing at Dowd Junction Feasibility and design RFP in 2023 to identify additional crossing opportunities in addition to Dowd.Kristen Bertuglia, Environmental Sustainability Director Global Friendship | Peer Resort Exchange Programming Ongoing Mia Vlaar, Economic Development Director. Kristen Bertuglia, Environmental Sustainability Director Cultural Heritage Preservation & Programs Summer 2022 - Funding recommendations to Town Council for 2023 budget.Lori A. Barnes, Director of Library Services Open Lands Plan 2022-2028 - Biodiversity study to kick off in late summer 2022.Kristen Bertuglia, Environmental Sustainability Director Building Code Regs & Climate Action Plan Implementation May 2022 Phase 1 complete – Adoption of 2021 ICC Codes with additions for solar and EV readiness 2023. Phase 2 – Roadmap to Zero, incentives to include outdoor energy uses/snowmelt offset program. Matt Gennett, Community Development Director ECONOMY 2. Dobson and Civic Area Plan Implementation Dobson Ice Arena – By November 1st, 2023, determine cost for Dobson & determine location for Town Hall services. Mark Novak, Fire Chief 4. Zoning Review 2022 - First boiler replacement.Matt Gennett, Community Development Director Special Events Funding Model Alternatives Initiative Aug. 2022 - Adoption of new model by Vail Town Council Mia Vlaar, Economic Development Director Destination Stewardship Plan - Steward Vail Dec. 2022 - Adoption of plan by Vail Town Council.Mia Vlaar, Economic Development Director Next Steps for TIF Funding Estimated funds available between 2022 and 2030 total between $35 - $41 million. Timeline: 3 - 5 years Kathleen Halloran, Deputy Town Manager Economic Development Strategic Plan Update Jan. – Dec. 2023.Mia Vlaar, Economic Development Director 160 EXPERIENCE 3. Excellent Customer Service By November 1, 2023 achieve the following: Create a clear definitions of excellent customer service to our residents and guests and a means of measuring to what degree we are providing excellent customer service. Identify and implement a metric for objectively measuring organizational effectiveness and health so that a baseline is developed which can be improved on in future years. Kathleen Halloran, Deputy Town Manager Go Vail 2045 – Vail Mobility & Transportation Master Plan July 2022 – May 2024.Tom Kassmel, Town Engineer Public Works Shops Expansion and Access Improvements March 2021 – June 2022. - Access Improvements Timeline TBD.Greg Hall, Public Works Director E-Vail Courier Implementation Oct. 1, 2022 - Full implementation began.Ryan Kenney, Police Commander Regional Transportation Ballot measure passed in Nov. 2022 Public Parking Initiatives New parking rates and passes were implemented at the start of the 2022/23 winter season Greg Hall, Public Works Director Guest Experience Initiatives Winter season activation and summer season activation 2023.Mia Vlaar, Economic Development Director 161 AGENDA ITEM NO. 5.1 Item Cover Page DATE:February 21, 2023 TIME:40 min. SUBMITTED BY:Tom Kassmel, Public Works ITEM TYPE:Presentation/Discussion AGENDA SECTION:Presentation/Discussion SUBJECT:Vail Pedestrian Village Safety Project Update SUGGESTED ACTION:Listen to presentation and confirm project direction. PRESENTER(S):Tom Kassmel, Town Engineer STAFF RECOMMENDATION:Staff Recommends that the Council confirms the project goals and provide and additional input and or direction. VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: Council Memo 2-21-23.docx Town Council 2-21-23 Presentation.pdf Public Input Bollards.pdf 162 To:Town Council From:Public Works Department Date:February 21, 2023 Subject:Vail Pedestrian Village Safety Improvements Project Update I.SUMMARY The Town of Vail has contracted with Kimley Horn to complete the design of the Vail Pedestrian Village Safety Project which includes the selection of and the design of approximately 70 bollards and or equivalent safety measures and barricades at various locations within the Vail Village, Lionshead Village, and Ford Park. The purpose of the project is to control vehicular access into Vail’s high pedestrian activity areas and restrict access when necessary during special events. The bollards, safety measures, and barricades are not only intended to control general vehicular access but are also intended to be impact resistant to provide the safest possible environment for pedestrians in these areas. The majority of the safety measures will likely be automatic retractable bollards with several being removeable to allow authorized vehicles to access through them as needed. The purpose of this discussion is to confirm the project goals, review the initial concept, and identify any initial concerns. II.PROJECT GOALS As identified above, the goal of this project is to provide a safe and inviting pedestrian experience within the Town’s high pedestrian areas by installing a flexible vehicular access control program that creates a safer pedestrian environment, and is flexible enough to create more secure pedestrian areas that restrict vehicular access completely during specific special events in specific areas at specific times, thus mitigating the potential threat of intentional and/or errant vehicle/pedestrian conflicts resulting in injury or death, all while maintaining full access for emergency vehicles and responders. III.ALTERNATIVES & CRITICAL CHALLENGES Based on our preliminary discussions with the design team it has become apparent that the town will have multiple challenges in fully achieving the above goal. To address 163 Town of Vail Page 2 these challenges and develop reasonable alternatives the critical question that will need to be answered is how Safe and Secure should the identified pedestrian areas be from vehicular incidents/attacks? Regardless of how the Town decides to move forward any potential program installed will provide significant safety improvements and will provide a much safer and controlled pedestrian environment than what exists now, particularly during special events. Each enhancement installed will provide an incremental benefit; however, due to the nature of these areas there will likely always be a loophole for a well-planned intentional vehicle attack, and these improvements will generally not mitigate other types of terroristic attack like an armed pedestrian or drone. Considering the above, some of the challenges that this program will face include the following: Authorized Vehicle Challenge: The primary challenge in achieving these goals is accommodating the sheer number of authorized vehicles that need to gain access to these high pedestrian areas daily, specifically within the Vail Village. The high frequency of access makes security and mitigating intentional terroristic vehicle attacks very difficult. Therefore, understanding how the Town’s goals relate to this challenge is critical. A Safe Access Control program will provide a safer pedestrian environment via standard vehicle access control at standard access points (See more detailed description below and attached concept plan). However, it will be limited when trying to mitigate a planned intentional vehicular attack on pedestrians. A Safe and Secure Access Control program will provide the same safer pedestrian environment but will also allow for the flexibility to create designated secure areas for special events that assist in mitigating planned intentional vehicular attacks (See more detailed description below and attached concept plan). In addition to the above two programs, there is also the potential for many variations of each dependent on the areas that are desired to be made Safe and/or Safe and Secure. A Safe Access Control program includes the installation of an array of safety measures and bollards that provides vehicle access control and limits and deters unauthorized vehicle from entry and will function successfully the vast majority of time from a vehicle access control and guest safety and experience standpoint. This type of program will control unauthorized vehicles from easily gaining access to the high pedestrian activity areas, but will allow buses, maintenance, emergency, loading and delivery vehicles to have access to these areas via proximity cards and retractable bollards. It will also allow authorized hotel and condominium guests to gain access to their designated destinations via a controlled access checkpoint, i.e, Checkpoint Charlie and/or via limited access proximity cards. However, this Safe Access Control program will not function to eliminate the threat of an intentional malicious attack on pedestrians by means of a vehicle. This is because errant or intentional/terroristic vehicles do not 164 Town of Vail Page 3 always use typical designated access points, they create their own paths. They are not deterred by potential vehicle damage that might occur when traversing curbs, planters, landscape areas, or breaking through fences or low impact bollards, or navigating extremely narrow walkways. To mitigate these types of rare events the Town will need to invest in additional security measures (see below). However, as mentioned above, a Safe Access Control program will function well for standard vehicle access control and to provide a safer pedestrian environment most of the time. A Safe Access Control program will likely have a magnitude cost of $2-$3 million dollars. A Safe and Secure Access Control program will not only achieve all the benefits of a Safe Access Control program described above, but it will also assist in mitigating the threat of errant and or intentional/terroristic vehicles, particularly in designated special events areas. However, to achieve this Safe and Secure Access Control program, significant additional safety measures, and operational protocols will have to be put in place. This will include additional high impact barriers in landscape areas and within narrow pedestrian walkways as well as on private property. A Safe and Secure Access Control program will also require changing how authorized vehicles access the village. To mitigate the threat of a planned terrorist attack or an attack by a disgruntled employee or guest; hotel/condominium guests and residents would not be permitted to access designated secure pedestrian areas with vehicles, nor would employees (transit, maintenance, and loading/delivery) be permitted to access designated secure areas with vehicles. This is because any access by guests, residents, and/or employees with any vehicle creates a loophole that potentially allows a terrorist or disgruntled employee/guest to easily plan and implement an attack on pedestrians with a vehicle by merely renting a night at the right hotel/condo or being employed by the right employer who has access to these areas. However, designated secure areas can be limited and defined to certain locations at certain times dependent on the levels of pedestrian activity. Secure areas could be defined as the entire Vail Village or limited to a specific special event venue like Solaris Plaza area, portions of East Meadow Drive, and/or Bridge Street and Gore Creek Drive. A Safe and Secure Access Control program as described above would provide a safer pedestrian environment most of the time as well as have the potential to provide a much more secure area during certain times at specific special event areas. A program like this will likely have a magnitude cost of $5- $7 million dollars and will require significant access protocol changes that will impact guests/residences and employees access at certain times in certain locations. Both programs and variations of each will have the flexibility to control each bollard to be up or down whenever determined necessary. There will be scheduled times when all bollards are up, times when all bollards are down, and everything in between. A Standard Operating Procedure (SOP) will be vetted once a program is selected. Operational Challenges The expectation is that the programs described above will be controlled from a central location via a secure cloud software program that includes a visual on each retractable bollard at all times. The bollards will also be operational via proximity cards and/or vehicular proximity. With this type of access control operation, there is the potential for operational concerns. Despite how far the technology has come to mitigate all issues it 165 Town of Vail Page 4 is not fail safe. Some potential issues that will come up are Standard Operating Procedure (SOP) related and other issues are due to potential hardware/software issues and/or human error. Examples include; Will the bollards remain up on the bus route along East Meadow Drive, potentially slowing buses down, and being a potential hazard to pedestrians when they are frequently going up and down, or do they remain down most of the time. Bollards in the up position within busy pedestrian areas may become a pedestrian hazard since many pedestrians will not be expecting a bollard to be in the pedestrian way. Hundreds of vehicles will still need to gain controlled access to these areas each day and are a potential threat o Buses o Private property access o Town LSEV deliveries o Third party delivery vehicles o Trash Trucks o Town maintenance vehicles o Town enforcement vehicles o Event Vehicles Bollard mal function is still possible, however there are many fail safes to preclude this. A mal function at the wrong time may allow the wrong vehicle in or preclude an emergency vehicle from accessing. The retractable bollards will ultimately be human controlled and monitored, that may cause issues and increases in operational costs. The system will be secured cloud based allowing control from multiple locations, i.e. Checkpoint Charlie when it is manned and Police Department after hours. The system will require cameras at each location to confirm it is safe to raise and lower bollards in addition to the sensors on the bollards The bollards, particularly the retractable bollards will require maintenance, semi- annually. Infrastructure Restoration Challenge: Another identified critical challenge includes the physical installation of these safety measures. In most cases the safety measures need to be installed within the snowmelted areas of town and will impact the snowmelt and other utility infrastructure that is underground. The restoration and relocation of this infrastructure is the bulk of the estimated magnitude of cost provided above. However, one opportunity that has been identified that will limit some cost is the use of the Town’s existing “Utility Trench”, an existing underground conduit raceway that was installed as part of the original construction of the streetscape projects for occasions just like this. The Utility Trench will allow the town to run fiber and power to most of the bollard locations without disturbing significant lengths of snowmelted areas, and it will also allow the Town to expand with additional technologies on this new fiber backbone simultaneously or in the future. 166 Town of Vail Page 5 Private Property Challenge: The last critical challenge is the potential need to install bollards and safety measures on private property. To achieve the additional secure special event areas, bollards will need to be installed on private property to mitigate the threat of vehicles entering pedestrian areas from private property during designated special events. Bollards can be placed on town property to restrict vehicles from getting into more secure areas, but they do not limit vehicles that are already in private property garages (i.e Solaris, Austria Haus, Village Center, Talisman, Pepe’s, and other accommodations within Vail Village). Installing bollards to restrict exiting vehicles from private property during designated special events will be a critical part to enhancing security in these areas. IV.DESIGN AND PHASED CONSTRUCTION Considering the above alternatives and challenges, the project can be designed as a Safe and Secure Access Control program which can be implemented in a phased manner. This will allow additional safety and security enhancements with each construction phase. Staff envisions a phased construction process that begins with a potential spring or fall 2023 pilot program at Checkpoint Charlie, followed by a 2024 perimeter control phase in both Vail and Lionshead Villages, and is then completed with multiple phases of enhanced security for special event areas and Ford Park. This will allow the Town to ease into the operations of the program and assess needs, make changes as necessary prior to implementing the designed Safe and Secure Access Control program. See attached conceptual phasing plans. V.NEXT STEPS To move this project forward staff and the design team are looking for clarification and confirmation of the stated project goals and whether the design team should proceed with both the Safe and Secure portions of the Access Control program. Regardless of how the Town chooses to move forward, the identified high pedestrian areas will see a significant improvement in vehicle access control and will be much safer than they are now against any pedestrian/vehicle incident. The program can also be enhanced in phases over time allowing the Town to incrementally add safety measures to add in additionally security. Based on direction from Council, staff will proceed with the appropriate design, provide more refined budget estimates, investigate grant opportunities, and target a first phase pilot program installation this fall. The design team will also be reviewing Bollards and Operational systems within the next month. In mid-March the design team will be visiting a third-party location in Denver and then attending the International Security Convention and Exposition at the end of March in Las Vegas. In Las Vegas the team will be able to talk to multiple venders and review the bollard program that was recently implemented in along Fremont Street. 167 Town of Vail Page 6 VI.STAFF RECOMMENDATION Based on the initial goals set for this project, staff recommends proceeding with the design of the Safe and Secure Access Control program as outlined above and prepare future budgets accordingly. Staff also recommends that the design of the program is completed to allow for a phased construction which allows for an initial pilot program as soon as spring/fall 2023, followed by multiple phases that allow for increased vehicle access control and safer and more secure special event areas. VII.ATTACHMENTS Presentation 168 PRESENTATION BY Public Works Vail Pedestrian Village Safety Improvements 169 The goal of this project is to provide a safe and inviting pedestrian experience within the Town’s high pedestrian areas by installing a flexible vehicular access control program that creates a safer pedestrian environment, and is flexible enough to create more secure pedestrian areas that restrict vehicular access completely during specific special events in specific areas at specific times, thus mitigating the potential threat of intentional and/or errant vehicle/pedestrian conflicts resulting in injury or death, all while maintaining full access for emergency vehicles and responders. PROJECT GOALS Safety Improvement to Provide •Flexible Vehicle Access Control •Safer Pedestrian Environment •Secure Designated Event Areas In High Pedestrian Areas •Vail Village •Lionshead Village •Dobson Ice Arena/Library •Ford Park Town of Vail | Name of Presentation | vailgov.com 170 CHALLENGES •Authorized Vehicles •Buses •Loading Delivery/Trash •Maintenance Services •Private Property Access •Enforcement Vehicles •Event Vehicles •Operations •Retractable Bollards •https://youtu.be/i_Cw0QJU8ro?t=59 •Pedestrian Bollard Conflicts •Infrastructure •Snowmelt •Utilities •Private Property Town of Vail | Name of Presentation | vailgov.com 171 CONCEPT ALTERNATIVE I •SAFE ACCESS CONTROL •Control Existing Access points •Access via Checkpoint Charlie ONLY •Proximity Cards Access •Buses •Maintenance •Emergency & Enforcement •Magnitude of Cost $2-$3 Million Town of Vail | Name of Presentation | vailgov.com 172      17 3   17 4      17 5 CONCEPT ALTERNATIVE II •SAFE & SECURE ACCESS CONTROL •Security Measures Added at Non- Typical Access Points •Create Designated Secure Special Event Areas •Solaris (EMD & Willow Bridge) •East Meadow Drive •Bridge and/or Gore Creek Drive •Lionshead •Dobson/Library Plaza •Ford Park Amphitheater Plaza •Bollards at Private Property Garages •Example Crash Test https://youtu.be/Zp85- dBwslE?t=70 •Magnitude of Cost $5-$7 Million Town of Vail | Name of Presentation | vailgov.com 176      17 7   17 8      17 9 OPERATIONS & PHASING •OPERATIONS •Secure Cloud Based Operations •Checkpoint Charlie & PD •Camera’s at Each Location •Access via •Checkpoint Charlie •Proximity Cards •Vehicle Proximity •Standard Operation Procedures •Bollards Up/Down •Times/Days/Locations •Special Events •Impact on Buses/L&D/Emergency Response/Private Property Access, etc… Town of Vail | Name of Presentation | vailgov.com •PHASING •2023 Pilot Program •Checkpoint Charlie+ •2024 Safe Access Control (Perimeter) •2025+ Secure Designated Areas 180      18 1      18 2      18 3      18 4   18 5   18 6   18 7      18 8 NEXT STEPS CONFIRM PROJECT GOALS •Safe Access Control OR •Safe and Secure Access Control CONFIRM PHASING & PILOT PROGRAM •Checkpoint Charlie •Checkpoint Charlie, Gorsuch & Hansen •Other Town of Vail | Name of Presentation | vailgov.com NEXT STEPS •Public Outreach •Phase I Design & Vender Selection •Denver Vender Visit 3/16 •ISC Las Vegas Visit 3/29-3/31 •Phase I Pilot Program Construction (Late Spring or Early Fall) 189 Thank you 190 From:Bob Essin To:Nate Peterson; Council Dist List Subject:Fwd: Vail plots pedestrian safety improvements in highly trafficked areas Date:Tuesday, February 21, 2023 11:38:34 AM Town of Vail: Really! $2Million. Have there been sufficient injuries to justify this? Certainly we are not talking about anything permanently that interferes with or competes with existing business, are we? Have there been sufficient studies to justify that this use of space in the streets and elsewhere harms or helps retail tax payers paying big time rent and taxes enough to justify expenses (including town employees) of renting out the streets and other space? I like the atmosphere it creates and enjoy some of the food for sure. While you’re doing it, consider taking the heat out the streets. Maybe you can just turn it off? Bob Sent from my iPad Begin forwarded message: From: Vail Daily <newsletters@vaildaily.com> Date: February 21, 2023 at 11:05:04 MST To: vailbob@comcast.net Subject: Vail plots pedestrian safety improvements in highly trafficked areas Reply-To: newsletters@vaildaily.com  Email not displaying correctly? View the web version ——— DAILY NEWS HEADLINES ——— 191 Vail plots pedestrian safety improvements in highly trafficked areas The town of Vail has budgeted $1.95 million over the next three years to design and install pedestrian safety improvements in high-pedestrian areas such as Vail Village, Lionshead Village, Dobson Ice Arena and Ford Park.... Advertisement | Your Ad Here Minturn Cemetery closes 192 gates to prevent animals from entering, targets spring for fence fix It will be spring before a welding project can blunt the deadly fence points at the Minturn Cemetery, but in the meantime, the gates through which animals are likely entering have been closed. The Minturn... Incoming storms to bring fresh snow to Vail, Eagle County As the holiday crowds disperse, a new storm system is arriving to give Eagle County a fresh coat of snow. The National Weather Service in Grand Junction has issued a Winter Weather Advisory for Tuesday... Wildlife Trail Ambassador Program's new campaign aims to change perspective on wildlife In Eagle, wildlife and humans exist within each other’s backyards. With that coexistence comes a sense of responsibility for residents to respect and protect surrounding wildlife. 193 Through education and jarring imagery, a new wildlife campaign... Haims: Homecare services are available in Eagle County So your spouse just had surgery, and now it is time to take them home. Now that the anxiety of a safe and successful procedure is behind you, your only concern is to make recovery... Writers on the Range: It’s do or die for the Great Salt Lake Last November, the Great Salt Lake, iconic landmark of the Great Basin Desert, fell to its lowest surface elevation ever recorded. The lake had lost 73% of its water and 60% of its area. More... Carnes: Kudos to local government, for a (brief) change Who says all governments are run by 194 incompetent boobs? Sure, some may play political games involving private land that the owners didn’t even realize they owned and bighorn sheep that have spent generations not caring... There are more newsletters! Sign up for Obituaries, Rentals, Skiing, Entertainment, Contests, Buy Local Insider, and more. You are receiving this email because you opted in to the "Daily and Breaking News" newsletter on the The Vail Daily website, or when participating in one of our contests or promotions. Want to stop this newsletter? Just click on the link below to manage your email newsletter subscription. Click here to unsubscribe and manage your email subscriptions.The Vail Daily PO Box 81, Vail, CO 81658-0081 195 From:Stephen Connolly To:Council Dist List Subject:SCREAMS small town charm Date:Friday, February 17, 2023 8:27:05 AM Attachments:image001.png Importance:High Why do you come to Vail or live in Vail? Number One answer: small town charm Vail Pedestrian Village Safety Project Update 40 min. Listen to presentation and confirm project direction. Presenter(s): Tom Kassmel, Town Engineer Background: The Town of Vail has contracted with Kimley Horn to complete the design of the Vail Pedestrian Village Safety Project which includes the selection of and the design of approximately 70 bollards and or equivalent safety measures and barricades at various locations within the Vail Village, the Lionshead Village, and Ford Park. The purpose of this discussion is to confirm the project goals, review the initial concept, and identify initial concerns. Staff Recommendation: Staff Recommends that the Council confirms the project goals and provide and additional input and or direction. Council Memo 2-21-23.docx Town Council 2-21-23 Presentation.pdf This will go right along with the half million in cross walk lights that seldom get used. And the 900 dollar exit gates that don’t work for sheet most o the the time. Thanks for reading. sfc Stephen Connolly sfcvail@hotmail.com 970-376-5798 (cell) 970-476-6826 (phone and voicemail) Looking for a great little Bed and Breakfast in Vail? https://airbnb.com/h/vailbnb A Superhost since 2016. Rethink * Reduce * Reuse * Recycle 196 From:JOHN & DIANA DONOVAN To:Council Dist List Subject:Bollards Date:Tuesday, February 21, 2023 10:16:08 AM Sounds like these are to prevent terrorism. That is about as appropriate as cutting down trees in town to prevent the town from burning down. Or in my neighborhood making pedestrians walk with their backs to traffic while sharing a lane with electric bikes going 30mph! None of this makes sense to me. Resume building . Sent from my liPhone 197 AGENDA ITEM NO. 6.1 Item Cover Page DATE:February 21, 2023 TIME:5 min. SUBMITTED BY:Jamie Leaman-Miller, Community Development ITEM TYPE:Action Items AGENDA SECTION:Action Items SUBJECT:Ordinance No. 2, Series of 2023, First Reading, An Ordinance Amending Section 12-11-4 of the Vail Town Code Concerning Renovations to Jointly Owned Properties SUGGESTED ACTION:Approve, approve with amendments or deny Ordinance No. 2, Series of 2023 upon first reading. PRESENTER(S):Jamie Leaman-Miller, Planner VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: Staff Memorandum - Ordinance No. 2.pdf Ordinance 2, Series of 2023 Amendment Title 12-11-4.pdf Attachment B. Staff Memorandum PEC22-0031_1-9-23.pdf Attachment C. PEC Results 1-9-23.pdf 198 TO: Vail Town Council FROM: Community Development Department DATE: February 21, 2023 SUBJECT: First reading of Ordinance No. 2, Series of 2023, for a Prescribed Regulation Amendment pursuant to Section 12-3-7 Amendment, Vail Town Code to amend Section 12-11-4 Materials To Be Submitted; Procedure, Vail Town Code, to amend joint-property owner requirements regarding renewable energy generation devices and setting forth details in regard thereto. (PEC22-0031) Applicant: Town of Vail Planner: Jamie Leaman-Miller I. SUMMARY The Community Development Department is proposing to update the Vail Town Code to amend joint-property owner requirements regarding renewable energy generation devices. These revisions are meant to update the code to reflect changes in state law. The Planning and Environmental Commission held a public hearing on the proposed Prescribed Regulation Amendment on January 9th, 2023 and recommended approval unanimously. II. ACTION REQUESTED OF THE TOWN COUNCIL The Vail Town Council shall approve, approve with modifications, or deny Ordinance No. 2, Series of 2023, on first reading. III. DESCRIPTION OF REQUEST Please see the draft ordinance prepared by the Town’s legal staff included as Attachment A for an understanding of the changes to Section 12-11-4. These changes were recommended by the Town’s legal department to reflect changes in state law. 199 Town of Vail 2 IV. BACKGROUND The Vail Town Code requires any development or construction – including renovations to existing buildings – to be approved by the Design Review Board. If the property in question is owned in common, then all owners must approve the proposed renovations. Vail Town Code § 12-11-4(B)(1)(d). While generally requiring unanimous approval for renovations to any jointly-owned property is well within the Town's authority, this process creates a conflict when applied to the installation of solar or other renewable energy generation devices upon a commonly-owned property. Under Colorado law, any covenant, restriction, or condition that "effectively prohibits or restricts the installation or use of a renewable energy generation device is void and unenforceable." C.R.S. § 38-30-168(1)(a). A "renewable energy generation device" includes solar panels or a wind-electric generator. C.R.S. § 38-30-168(1)(b). However, the right to install renewable energy generation devices is not absolute. The prohibition of devices does not apply to: (a) Aesthetic provisions that impose "reasonable restrictions" on the dimension, placement, or external appearance of any renewable energy generation device; (b) Safety requirements imposed by either the building code or any recognized electrical safety standards; or (c) Only in the context of wind-electric generators, reasonable restrictions that reduce interference with the use and enjoyment of adjacent properties. C.R.S. § 38-30-168(2). Additionally, the statute does not grant a property owner the right to install a renewable energy generation device on property that is: owned by another person; leased; collateral for a commercial loan; or a limited or general common element of a common interest community. C.R.S. § 38-30-168(3). V. RECOMMENDED MOTION Should the Vail Town Council choose to approve Ordinance No. 2, Series of 2023, on first reading, the Community Development Department recommends the Council pass the following motion: “The Vail Town Council approves, on first reading, Ordinance No. 2, Series of 2023, an ordinance amending Section 12-11-4 Materials To Be Submitted; Procedure, Vail Town Code, to amend joint-property owner requirements regarding renewable energy generation devices and setting forth details in regard thereto.” Should the Vail Town Council choose to approve Ordinance No. 2 Series of 2023, the Community Development Department recommends the Council make the following findings: “The Vail Town Council finds:” 200 Town of Vail 3 1. That the amendment is consistent with the applicable elements of the adopted goals, objectives and policies outlined in the Vail comprehensive plan and is compatible with the development objectives of the town; and 2. That the amendment furthers the general and specific purposes of the zoning regulations; and 3. That the amendment promotes the health, safety, morals, and general welfare of the town and promotes the coordinated and harmonious development of the town in a manner that conserves and enhances its natural environment and its established character as a resort and residential community of the highest quality.” VI. ATTACHMENTS A. Ordinance No. 2, Series of 2023 B. Staff Memorandum to PEC, January 9, 2023 C. PEC Minutes, January 9, 2023 201 1 ORDINANCE NO. 2 SERIES 2023 AN ORDINANCE AMENDING SECTION 12-11-4 OF THE VAIL TOWN CODE CONCERNING RENOVATIONS TO JOINTLY OWNED PROPERTIES WHEREAS, C.R.S. § 38-30-168 establishes that covenants that restrict or effectively prohibit the ability of property owners to install renewable energy generation devices upon their property are void and unenforceable; and WHEREAS, Section 12-11-4 of the Vail Town Code allows an owner within a jointly-owned property to prevent other owners from exercising these rights. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. Section 12-11-4 of the Vail Town Code is amended to read a s follows: 12-11-4: MATERIAL TO BE SUBMITTED; PROCEDURE: ** * (B)Conceptual Design Review: (1)Submittal Requirements: The owner or authorized agent of any project requiring design approval as prescribed by this chapter may submit plans for conceptual review by the Design Review Board to the Department of Community Development. The purpose of a conceptual review is shall be to give the applicant a basic understanding with respect to the design concept and the compatibility of a proposal with the design guidelines contained within this chapter. This procedure is recommended mainly for those applications of a higher impact than single-family and two- family residences, although projects of that nature shall not be excluded the opportunity to request a conceptual design review. The following information shall be submitted for a conceptual review ten (10) days prior to a scheduled design review board meeting: ** * (d)Application form. If the property is owned in common (condominium association) and/or located within a development lot, the written approval of the other property owner, owners or applicable owners' association is shall be required. This can be either in the form of a letter of approval or signature on the application. Such approval shall not be necessary if the application 202 2 is solely for installation of a renewable energy generation device as allowed by C.R.S. § 38-30-168, as amended. ** * C.Preliminary and final design review ** * 6.Additional requirements. In addition to the above requirements, the Department of Community Development may require any or all of the following: ** * (l)Form and fee. Application form and appropriate fee. If the property is owned in common (condominium association) and/or located within a development lot, the written approval of the other property owner, owners or applicable owners' association is shall be required. This can be either in the form of a letter of approval or signature on the application. Such approval shall not be necessary if the application is solely for installation of a renewable energy generation device as allowed by C.R.S. § 38-30-168, as amended. Section 2. If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not effect the validity of the remaining portions of this ordinance; and the Council hereby declares it would have passed this ordinance, and each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. Section 3. The Council hereby finds, determines and declares that this ordinance is necessary and proper for the health, safety and welfare of the Town and the inhabitants thereof. Section 4. The amendment of any provision of the Town Code as provided in this ordinance shall not affect any right which has accrued, any duty imposed, any violation that occurred prior to the effective date hereof, any prosecution commenced, nor any other action or proceeding as commenced under or by virtue of the provision amended. The amendment of any provision hereby shall not revive any provision or any ordinance previously repealed or superseded unless expressly stated herein. Section 5. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are repealed to the extent only of such inconsistency. This repealer shall not be construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore repealed. 203 3 INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON FIRST READING this ___ day of ______________, 2023 and a public hearing for second reading of this Ordinance set for the _____day of ______________, 2023, in the Council Chambers of the Vail Municipal Building, Vail, Colorado. _____________________________ Kim Langmaid, Mayor ATTEST: ____________________________ Stephanie Bibbens, Town Clerk READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED this ___ day of ______________, 2023. _____________________________ Kim Langmaid, Mayor ATTEST: ____________________________ Stephanie Bibbens, Town Clerk 204 TO: Planning and Environmental Commission FROM: Community Development Department DATE: January 9, 2023 SUBJECT: A request for a recommendation to the Vail Town Council for a Prescribed Regulation Amendment pursuant to Section 12-3-7 Amendment, Vail Town Code to amend Section 12-11-4 Materials To Be Submitted; Procedure, Vail Town Code, to amend joint-property owner requirements regarding renewable energy generation devices and setting forth details in regard thereto. (PEC22-0031)    Applicant: Town of Vail Planner: Jamie Leaman-Miller I. SUMMARY The Community Development Department is proposing to update the Vail Town Code to amend joint-property owner requirements regarding renewable energy generation devices. These updates are meant to update the code to reflect changes in state law. II. DESCRIPTION OF REQUEST The Community Development Department is requesting that the Planning and Environmental Commission forward a recommendation of approval to the Vail Town Council for amendments to Section 12, pursuant to Section 12-3-7, Amendment, Vail Town Code, to amend joint-property owner requirements regarding renewable energy generation devices. These updates were recommended by the Town’s legal department to reflect changes in state law. III. BACKGROUND The Vail Town Code requires any development or construction – including renovations to existing buildings – to be approved by the Design Review Board. If the property in question is owned in common, then all of the owners must approve of the proposed renovations. Vail Town Code § 12-11-4(B)(1)(d). While generally requiring unanimous 205 Town of Vail Page 2 approval for renovations to any jointly-owned property is well within the Town's authority, this process creates a conflict when applied to the installation of solar or other renewable energy generation devices upon a commonly-owned property. Under Colorado law, any covenant, restriction, or condition that "effectively prohibits or restricts the installation or use of a renewable energy generation device is void and unenforceable." C.R.S. § 38-30-168(1)(a). A "renewable energy generation device" includes solar panels or a wind-electric generator. C.R.S. § 38-30-168(1)(b). However, the right to install renewable energy generation devices is not absolute. The prohibition devices does not apply to: (a) Aesthetic provisions that impose "reasonable restrictions" on the dimension, placement, or external appearance of any renewable energy generation device; (b) Safety requirements imposed by either the building code or any recognized electrical safety standards; or (c) Only in the context of wind-electric generators, reasonable restrictions that reduce interference with the use and enjoyment of adjacent properties. C.R.S. § 38-30-168(2). Additionally, the statute does not grant a property owner the right to install a renewable energy generation device on property that is: owned by another person; leased; collateral for a commercial loan; or a limited or general common element of a common interest community. C.R.S. § 38-30-168(3). IV. PROPOSED TEXT AMENDMENT LANGUAGE The applicant proposes the following revisions to Vail Town Code 12-11-4. The strikethrough text is to be removed while the underlined text is to be added. The proposed language is also included in Attachment A. 12-11-4: MATERIAL TO BE SUBMITTED; PROCEDURE: * * * (B) Conceptual Design Review: (1) Submittal Requirements: The owner or authorized agent of any project requiring design approval as prescribed by this chapter may submit plans for conceptual review by the Design Review Board to the Department of Community Development. The purpose of a conceptual review is shall be to give the applicant a basic understanding with respect to the design concept and the compatibility of a proposal with the design guidelines contained within this chapter. This procedure is recommended mainly for those applications of a higher impact than single-family and two- 206 Town of Vail Page 3 family residences, although projects of that nature shall not be excluded the opportunity to request a conceptual design review. The following information shall be submitted for a conceptual review ten (10) days prior to a scheduled design review board meeting: * * * (d) Application form. If the property is owned in common (condominium association) and/or located within a development lot, the written approval of the other property owner, owners or applicable owners' association is shall be required. This can be either in the form of a letter of approval or signature on the application. Such approval shall not be necessary if the application is solely for installation of a renewable energy generation device as allowed by C.R.S. § 38-30-168, as amended. * * * C. Preliminary and final design review * * * 6. Additional requirements. In addition to the above requirements, the Department of Community Development may require any or all of the following: * * * (l) Form and fee. Application form and appropriate fee. If the property is owned in common (condominium association) and/or located within a development lot, the written approval of the other property owner, owners or applicable owners' association is shall be required. This can be either in the form of a letter of approval or signature on the application. Such approval shall not be necessary if the application is solely for installation of a renewable energy generation device as allowed by C.R.S. § 38-30-168, as amended. 207 Town of Vail Page 4 V. ROLES OF REVIEWING BODIES Order of Review: Generally, text amendment applications will be reviewed by the Planning and Environmental Commission and the Commission will forward a recommendation to the Town Council. The Town Council will then review the text amendment application and make the final decision. Planning and Environmental Commission: The Planning and Environmental Commission is responsible for the review of a text amendment application, pursuant to Section 12-3-7, Amendment, Vail Town Code, and forwarding of a recommendation to the Town Council. Design Review Board: The Design Review Board (DRB) has no review authority over a text amendment to the Vail Town Code. Town Council: The Town Council is responsible for final approval, approval with modifications, or denial of a text amendment application, pursuant to Section 12-3-7, Amendment, Vail Town Code. Staff: The Town Staff facilitates the application review process. Staff reviews the submitted application materials for completeness and general compliance with the appropriate requirements of the Town Code. Staff also provides the Planning and Environmental Commission a memorandum containing a description and background of the application, an evaluation of the application in regard to the criteria and findings outlined by the Town Code, and a recommendation of approval, approval with modifications, or denial. VI. APPLICABLE PLANNING DOCUMENTS Staff believes that following provisions of the Vail Town Code and Vail Land Use Plan are relevant to the review of this proposal: Title 12, Zoning Regulations, Vail Town Code CHAPTER 12-1, TITLE, PURPOSE AND APPLICABILITY (in part) Section 12-1-2: Purpose: A. General: These regulations are enacted for the purpose of promoting the health, safety, morals, and general welfare of the Town, and to promote the coordinated and 208 Town of Vail Page 5 harmonious development of the Town in a manner that will conserve and enhance its natural environment and its established character as a resort and residential community of high quality. B. Specific: These regulations are intended to achieve the following more specific purposes: 1. To provide for adequate light, air, sanitation, drainage, and public facilities. 2. To secure safety from fire, panic, flood, avalanche, accumulation of snow, and other dangerous conditions. 3. To promote safe and efficient pedestrian and vehicular traffic circulation and to lessen congestion in the streets. 4. To promote adequate and appropriately located off-street parking and loading facilities. 5. To conserve and maintain established community qualities and economic values. 6. To encourage a harmonious, convenient, workable relationship among land uses, consistent with Municipal development objectives. 7. To prevent excessive population densities and overcrowding of the land with structures. 8. To safeguard and enhance the appearance of the Town. 9. To conserve and protect wildlife, streams, woods, hillsides, and other desirable natural features. 10. To assure adequate open space, recreation opportunities, and other amenities and facilities conducive to desired living quarters. 11. To otherwise provide for the growth of an orderly and viable community. VII. ENVIRONMENTAL IMPACTS The proposed prescribed regulation amendment does not have any identifiable environmental impacts. 209 Town of Vail Page 6 VIII. CRITERIA FOR REVIEW 1. The extent to which the text amendment furthers the general and specific purposes of the zoning regulations; and The general purposes of the zoning regulations are for “promoting the health, safety, morals, and general welfare of the town, and to promote the coordinated and harmonious development of the town in a manner that will conserve and enhance its natural environment and its established character as a resort and residential community of high quality”. This text amendment is intended to address changes in state law in order to maintain an accurate municipal code. Staff finds that the proposed text amendment meets this criterion. 2. The extent to which the text amendment would better implement and better achieve the applicable elements of the adopted goals, objectives, and policies outlined in the Vail comprehensive plan and is compatible with the development objectives of the town; and The proposed text amendment will update the Town Code to reflect changes to state law. The changes will not have bearing on development objectives of the Town of Vail. Staff finds that the proposed text amendment meets this criterion. 3. The text amendment demonstrates how conditions have substantially changed since the adoption of the subject regulation and how the existing regulation is no longer appropriate or is inapplicable; and The proposed text changes are the result of changes made to Colorado Revised Statues which the code, at times, references. The current code section is out of date with the amendments made at the State level, showing that conditions have changed since the adoption of the regulation. The amendment brings the code up to date with applicable statutes. Staff finds that the proposed text amendment meets this criterion. 4. The extent to which the text amendment provides a harmonious, convenient, workable relationship among land use regulations consistent with municipal development objectives; and The proposed text amendments will have no effect on the town’s land use regulations or their effectiveness thereof. Staff finds that this criterion is not applicable. 210 Town of Vail Page 7 5. Such other factors and criteria the Planning and Environmental Commission and/or council deem applicable to the proposed text amendments Staff will provide additional information as needed should the PEC and/or council determine other factors or criteria applicable to the proposed text amendment. IX. STAFF RECOMMENDATION The Community Development Department recommends that the Planning and Environmental Commission forward a recommendation of approval for the prescribed regulation amendment to the Vail Town Council. This recommendation is based upon the review of the criteria outlined in Section VIII of this memorandum and the evidence and testimony presented. Should the Planning and Environmental Commission choose to forward a recommendation of approval to the Vail Town Council for the proposed prescribed regulation amendment, the Community Development Department recommends the Commission pass the following motion: "The Planning and Environmental Commission forwards a recommendation of approval to the Vail Town Council for a Prescribed Regulation Amendment pursuant to Section 12-3- 7 Amendment, Vail Town Code to amend Section 12-11-4 Materials To Be Submitted; Procedure, Vail Town Code, to amend joint-property owner requirements regarding renewable energy generation devices and setting forth details in regard thereto. (PEC22- 0031).” Should the Planning and Environmental Commission choose to forward a recommendation of approval to the Vail Town Council for the proposed prescribed regulation amendment, the Community Development Department recommends the Commission makes the following findings: “Based upon a review of Section VIII of the January 9, 2023 staff memorandum to the Planning and Environmental Commission, and the evidence and testimony presented, the Planning and Environmental Commission finds: 1. That the amendment is consistent with the applicable elements of the adopted goals, objectives and policies outlined in the Vail Comprehensive Plan and is compatible with the development objectives of the Town; and 2. That the amendment furthers the general and specific purposes of the Zoning Regulations outlined in Section 12-1-2, Purpose, Vail Town Code; and 3. That the amendment promotes the health, safety, morals, and general welfare of the 211 Town of Vail Page 8 Town and promotes the coordinated and harmonious development of the Town in a manner that conserves and enhances its natural environment and its established character as a resort and residential community of the highest quality." X. ATTACHMENTS A. Draft Ordinance Amendment Title 12-11-4 212 Present:Bobby Lipnick Karen Perez John Rediker Henry Pratt Bill Jensen Brian Judge Absent:Reid Phillips 1.Virtual Link Register to attend the Planning and Environmental Commission meeting. Once registered, you will receive a confirmation email containing information about joining this webinar. 2.Call to Order 3.Main Agenda 3.1 PEC22-0016 - A request for a recommendation to the Vail Town Council for a Prescribed Regulation Amendment amendment, pursuant to Section 12-3-7, Amendment, Vail Town Code, to amend portions of Title 12, Zoning Regulations and Title 14, Development Standards, Vail Town Code to create the West Vail Multiple Family 1 (WVMF1) and West Vail Multiple Family 2 (WVMF 2) Zone Districts and setting forth details in regard thereto. The Applicant requests this item be tabled to February 27, 2023. Planner: Greg Roy Applicant Name: Town of Vail, represented by SE Group 3.2 PEC22-0029 - A request for a recommendation to the Vail Town Council for a Zone District Boundary Amendment pursuant to Section 12-3-7 Amendment, Vail Town Code to establish the boundaries of the West Vail Multiple Family 1 (WVMF1) and West Vail Multiple Family 2 (WVMF2) zone districts and setting forth details in regard thereto. The Applicant requests this item be tabled to February 27, 2023. Planner: Greg Roy Applicant Name: Town of Vail, represented by SE Group Planning and Environmental Commission Minutes Monday, January 9, 2023 1:00 PM Vail Town Council Chambers Brian Judge made a motion to Table to February 27th, 2023; Henry Pratt seconded the motion Passed (6 - 0). Brian Judge made a motion to Table to February 27th, 2023; Henry Pratt seconded the motion Passed (6 - 0). 1 Planning and Environmental Commission Meeting Minutes of January 9, 2023 213 3.3 PEC22-0024 - A request for a review of a variance from Section 14-6-7, Retaining Walls, Vail Town Code, pursuant to Title 12 Chapter 17, Variances, Vail Town Code to allow for a retaining wall in excess of three (3) feet within the required front setback and retaining walls in excess of six (6) feet, located at 784 Potato Patch Drive, Lot 15-W, Block 1, Vail/Potato Patch Condominiums, and setting forth details in regard thereto. This application has been withdrawn at the applicant's request . Planner: Jamie Leaman-Miller Applicant Name: Brian Judge and James Calano represented by J+A Architects 3.4 PEC22-0032 A request for a recommendation to the Vail Town Council for a Prescribed Regulation Amendment pursuant to Section 12-3-7 Amendment, Vail Town Code to amend Section 12-3-3 Appeals, to simplify and clarify the procedures for land use appeals and setting forth details in regard thereto. The Applicant requests this item be tabled to January 23, 2023. Planner: Jamie Leaman-Miller Applicant Name: Town of Vail, represented by Matt Gennett Planner: Jamie Leaman-Miller Applicant Name: Town of Vail, represented by Matt Gennett 3.5 PEC22-0031 - A request for a recommendation to the Vail Town Council for a Prescribed Regulation Amendment pursuant to Section 12-3-7 Amendment, Vail Town Code to amend Section 12-11-4 Materials To Be Submitted, Procedure, Vail Town Code, to amend joint-property owner requirements regarding renewable energy generation devices and setting forth details in regard thereto. Planner Leaman-Miller gives a short presentation on the proposed code amendments. The application is proposing to amend Town Code to be in conformance with a revised Colorado State Statute. The change would generally not require joint property owner approval for renewable energy devices in specific circumstances. Rediker has questions on the three exceptions in the State Statute and if the DRB process still applies. Leaman-Miller confirms DRB approval would still be required and this only removes the Joint Property Owner approval requirement in these cases. Rediker asks about the fee, specifically about the ability to require fees as there are changes in the language that remove the word "fee". Bobby Lipnick made a motion to Table to January 23rd, 2023; Karen Perez seconded the motion Passed (6 - 0). Staff Memorandum PEC22-0031 1-9-23.pdf Attachment A. Draft Ordinance Amendment Title 12-11-4.pdf 2 Planning and Environmental Commission Meeting Minutes of January 9, 2023 214 Planner Roy explains that these would be required the same as they are today; it just removes that language from this particular code section. It is still required by section on Design Review Board applications. Pratt asks about the applicability of HOAs and that this is only changing for primary/secondary properties. Planner Leaman-Miller responds that HOAs and other circumstances where the energy generation device is proposed to be installed on commonly owned property the approval would be required. Removing the joint-property approval requirement predominantly impacts duplex properties. Judge asks about the specific language in the staff report that is not verbatim to the CRS language. Leaman-Miller answers that the referenced background section in the memo is included for context, the specific changes to the Vail Town Code are detailed later in the staff memo. The prior sections are a summary of the application. Public comment opened, no comments, public comment closed. Rediker notes that the criteria is being met by the proposed amendments. He agrees with criteria 1-5 as presented in the memo. Lipnick makes a motion with the findings in the staff report. 4.Approval of Minutes 4.1 PEC Results 12-12-22 (Rediker abstains - absent for Dec. 12 meeting) 5.Information Update 6.Adjournment Bobby Lipnick made a motion to Recommend for approval with the findings in the staff memorandum; Karen Perez seconded the motion Passed (6 - 0). PEC Results 12-12-22.pdf Karen Perez made a motion to Approve ; Bill Jensen seconded the motion Passed (5 - 0). Karen Perez made a motion to Adjourn ; Bill Jensen seconded the motion Passed (6 - 0). 3 Planning and Environmental Commission Meeting Minutes of January 9, 2023 215 AGENDA ITEM NO. 6.2 Item Cover Page DATE:February 21, 2023 TIME:10 min. SUBMITTED BY:Stephanie Bibbens, Town Manager ITEM TYPE:Action Items AGENDA SECTION:Action Items SUBJECT:Ordinance 3, Series of 2023, First Reading, An Ordinance Amending Title 3 of the Vail Town Code by the Addition of a New Chapter 7, Establishing the Building and Fire Code Appeals Board, and Amending Title 10 of the Vail Town Code by the Addition of a New Section 10-1-13, Establishing Procedures for the Appeals Process. SUGGESTED ACTION:Approve, approve with amendments, or deny Ordinance No. 3, Series of 2023 upon first reading. PRESENTER(S):CJ Jarecki, Chief Building Official VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: Memo - Ordinance 3, Series of 2023, BFCAB.pdf Ordinance 3, Series of 2023 - BFCAB.pdf 216 Town of Vail Page 1 TO: Vail Town Council FROM: Community Development Department DATE: February 21, 2023 SUBJECT: Ordinance No. 3, Series of 2023: Titles 7 and 10 – Building and Fire Code Appeals Board I. SUMMARY The purpose of this memorandum is to provide information to the Vail Town Council regarding the adoption of code language that will formally establish the Building and Fire Code Appeals Board (BFCAB). This Board is tasked with the following:  hearing appeals of decisions made by the building official or fire marshal;  assisting the building official or fire marshal with code compliance determination of alternative materials, designs and methods of construction, and;  serving in an advisory capacity to Town Council on matters relating to building and fire code adoption, compliance, intent, modification, and amendment. The ordinance being presented today is to officially establish the BFCAB and its function. II. BACKGROUND The BFCAB, or some variant of an Appeals Board, has been in existence in the Town for many decades. The codes adopted by the Town, published by the International Code Council, specify that this Board shall be established by the Town. As such, this Board is essential to the successful administration of the adopted codes of the Town. Unfortunately, a search of the current and historical Town Municipal Code and Charter have shown that there is no language provided for the BFCAB or its function. Additionally, language regarding the appeals process was inadvertently deleted from the Vail Town Code during the code adoption that took place in July of 2022. The second part of the ordinance simply puts this language back into the Vail Town Code. 217 Town of Vail Page 2 III. ACTION REQUESTED OF THE TOWN COUNCIL The Vail Town Council shall approve, approve with modifications, or deny Ordinance No. 3, Series of 2023 upon first reading. IV. ATTACHMENTS A. Ordinance No. 3, Series of 2023 218 2/14/2023 \\FILESERVER2019\REDIRECTED$\CJARECKI\DESKTOP\BUILDING & FIRE CODE APPEALS BOARD\BFCAB ORDINANCE\ORDINANCE 3, SERIES OF 2023 - BFCAB.DOCX ORDINANCE NO. 3 SERIES 2023 AN ORDINANCE AMENDING TITLE 3 OF THE VAIL TOWN CODE BY THE ADDITION OF A NEW CHAPTER 7, ESTABLISHING THE BUILDING AND FIRE CODE APPEALS BOARD, AND AMENDING TITLE 10 OF THE VAIL TOWN CODE BY THE ADDITION OF A NEW SECTION 10-1-13, ESTABLISHING PROCEDURES FOR THE APPEALS PROCESS. WHEREAS, the Town's adopted building and fire codes require the Town to establish a Board of Appeals; WHEREAS, previously, the section of the Vail Town Code establishing the appeals process for the Building and Fire Code Appeals Board was included in Title 10 but was inadvertently deleted with the latest code adoption; and WHEREAS, the Vail Town Council finds it in the best interest of the public health, safety, and welfare to adopt these amendments to the Vail Town Code. NOW THEREFORE BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. Title 3 of the Vail Town Code is hereby amended by the addition of a new Chapter 7, to read as follows: CHAPTER 7 BUILDING AND FIRE CODE APPEALS BOARD 3-7-1: BOARD ESTABLISHED: The Building and Fire Code Appeals Board (the "Board") is hereby established. 3-7-2: POWERS AND DUTIES: A. The Board shall be authorized to: 1. Hear and decide upon appeals of an order, decision, determination, or interpretation made by the Building Official or the Fire Code Official under Section 10-1-13 of this Code. 2. Assist the Building Official and the Fire Code Official with determining code compliance of alternative materials, designs and methods of construction and equipment. 219 2 2/14/2023 \\FILESERVER2019\REDIRECTED$\CJARECKI\DESKTOP\BUILDING & FIRE CODE APPEALS BOARD\BFCAB ORDINANCE\ORDINANCE 3, SERIES OF 2023 - BFCAB.DOCX 3. Make recommendations to the Town Council on matters relating to building and fire code adoption, compliance, intent, modification, and amendment. 3-7-3: MEMBERSHIP: A. Appointment. The Board shall consist of seven (7) members, all appointed by the Town Council. In addition, the Building Official shall be an ex officio member of the Board, but shall have no voting rights, shall not be counted towards a quorum, and shall not participate in any appeal made to the Board. B. Qualifications. Each member shall be qualified by experience, knowledge, and training to pass on matters pertaining to building construction, codes and standards, hazards of fire or fire protection systems, such as: a licensed architect; a licensed engineer with structural, mechanical, electrical, or fire protection engineering experience; a construction company owner, executive, superintendent, or other manager; or any other individual with similar experience, knowledge, and training. No Board member shall be an employee of the Town. C. Terms. The term for each Board member shall be four (4) years, provided that terms be staggered, and shorter terms may be required to maintain the stagger. All terms shall expire on March 31. Section 3-1-1 of this Code shall not apply to this Board. D. Removal. Board members may be removed by the Town Council for inefficiency, neglect of duty, failure to attend meetings, or malfeasance in office; provided that prior to such removal, the Board member shall receive written notice of the charges supporting removal and shall have an opportunity to be heard. E. Vacancies. If a vacancy occurs in the middle of a Board member's term, the Town Council shall appoint a successor to fill the vacancy and the new member shall serve the remainder of the term of the former member. 3-7-5: PROCEDURES: A. The Board shall establish policies and procedures necessary to carry out its duties. The procedures shall not require compliance with strict rules of evidence or procedure but shall mandate that only relevant information be presented. B. The Board shall meet once per month, as necessary. All Board meetings shall comply with the Colorado Open Meetings Law, C.R.S. § 24- 6-401, et seq. 220 3 2/14/2023 \\FILESERVER2019\REDIRECTED$\CJARECKI\DESKTOP\BUILDING & FIRE CODE APPEALS BOARD\BFCAB ORDINANCE\ORDINANCE 3, SERIES OF 2023 - BFCAB.DOCX C. The Board shall annually select one of its members to serve as Chair and another to serve as Vice-Chair. The Chair, or in the Chair's absence, the Vice-Chair, shall be the presiding officer at Board meetings. In the absence of both the Chair and the Vice-Chair, the Board members present shall appoint a member to serve as acting Chair at said meeting. D. A quorum of the Board shall be four (4) members. A simple majority of Board members present shall be required for the Board to take any action. E. Any Board member with a conflict of interest related to any matter before the Board shall declare such interest and recuse themselves from any discussion, deliberation or vote on such matter. F. All appeals made to the Board shall be in accordance with Section 10-1-13 of this Code. Section 2. Chapter 1 of Title 10 of the Vail Town Code is hereby amended by the addition of the following new Section 10-1-13: 10-1-13: APPEALS: A. Appeal of Building Official or Fire Code Official actions: 1. Authority: The Building and Fire Code Appeals Board (the "Board") shall have the authority to hear and decide appeals from any order, decision, determination, or interpretation by the Building Official or Fire Code Official with respect to the provisions of this Code. An application for appeal shall be based on a claim that the intent of this code or the rules legally adopted thereunder have been incorrectly interpreted, the provisions of this code do not fully apply, or an equivalent or better form of construction is proposed. The Board shall not have the authority to waive any specific requirement of this code. 2. Initiation: An appeal may be initiated by any resident, property owner, or contractor adversely affected by any order, decision, determination, or interpretation by the Building Official or Fire Code Official with respect to the provisions of this Code. Failure to file a timely appeal shall constitute a waiver of any rights under this Chapter to appeal any order, decision, determination or interpretation by the Building Official or Fire Code Official. 3. Procedure: i. A written notice of appeal shall be filed with the Community Development Department within fourteen (14) days of any decision being appealed. Upon the filing of the appeal, the Building Official 221 4 2/14/2023 \\FILESERVER2019\REDIRECTED$\CJARECKI\DESKTOP\BUILDING & FIRE CODE APPEALS BOARD\BFCAB ORDINANCE\ORDINANCE 3, SERIES OF 2023 - BFCAB.DOCX shall gather and forward all records concerning the subject matter of the appeal to the Board. ii. The appeal shall be considered by the Board at its next regularly scheduled meeting. iii. The Board may affirm, reverse, or modify the action of the Building Official or Fire Code Official, or schedule a hearing. Failure of the Board to act within fourteen (14) days of receipt of the appeal information shall be deemed concurrence with the action of the Building Official or Fire Code Official. iv. If a hearing is deemed necessary, it shall be held within thirty (30) days of the first consideration by the Board. Written notice shall be sent to the appellant a minimum of fourteen (14) days prior to the scheduled hearing. The Board may grant one continuance of the hearing of up to thirty (30) days. 4. Findings: The Board shall, on all appeals, make findings of fact based on the evidence presented, as to how the requirements of the applicable Code have or have not been met. B. Appeal of Board actions: 1. Authority: The Town Council shall have the authority to hear and decide appeals from any order, decision, determination, or interpretation of the Board. 2. Initiation: An appeal may be initiated by any resident, property owner, or contractor adversely affected by any order, decision, determination, or interpretation of the Board. Failure to file a timely appeal shall constitute a waiver of any rights under this Chapter to appeal any order, decision, determination, or interpretation of the Board. 3. Procedure: i. A written notice of appeal shall be filed with the Community Development Department within fourteen (14) days of the Board’s decision. Upon the filing of the appeal, the Building Official shall gather and forward all records concerning the subject matter of the appeal to the Town Council. ii. The Town Council shall consider the appeal at its next regularly scheduled meeting. iii. The Town Council may confirm, reverse, or modify the action of the Board. 222 5 2/14/2023 \\FILESERVER2019\REDIRECTED$\CJARECKI\DESKTOP\BUILDING & FIRE CODE APPEALS BOARD\BFCAB ORDINANCE\ORDINANCE 3, SERIES OF 2023 - BFCAB.DOCX 4. Decision: The Town Council may affirm, reverse, or modify the action of the Board. The Town Council shall make findings of fact based the evidence presented. 5. Final Decision: The decision of the Town Council shall be final, subject only to judicial review by a court of competent jurisdiction under C.R.C.P. 106(a)(4). Section 3. Effective Date. This Ordinance shall become effective on or after April 1, 2023. Section 4. If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this ordinance; and the Town Council hereby declares it would have passed this ordinance, and each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. Section 5. The Town Council hereby finds, determines, and declares that this ordinance is necessary and proper for the health, safety and welfare of the Town and the inhabitants thereof. Section 6. The amendment of any provision of the Vail Town Code in this ordinance shall not affect any right which has accrued, any duty imposed, any violation that occurred prior to the effective date hereof, any prosecution commenced, nor any other action or proceeding as commenced under or by virtue of the provision amended. The amendment of any provision hereby shall not revive any provision or ordinance previously repealed or superseded unless expressly stated herein. Section 7. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are repealed to the extent only of such inconsistency. This repealer shall not be construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore repealed. INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON FIRST READING this 21st day of February, 2023 and a public hearing for second reading of this Ordinance is set for the 7th day of March, 2023, in the Council Chambers of the Vail Municipal Building, Vail, Colorado. _____________________________ Kim Langmaid, Mayor ATTEST: ____________________________ 223 6 2/14/2023 \\FILESERVER2019\REDIRECTED$\CJARECKI\DESKTOP\BUILDING & FIRE CODE APPEALS BOARD\BFCAB ORDINANCE\ORDINANCE 3, SERIES OF 2023 - BFCAB.DOCX Stephanie Bibbens, Town Clerk READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED this 7th day of March, 2023. _______________________________ Kim Langmaid, Mayor ATTEST: ____________________________ Stephanie Bibbens, Town Clerk 224 AGENDA ITEM NO. 6.3 Item Cover Page DATE:February 21, 2023 TIME:5 min. SUBMITTED BY:Lauren Noll, Finance ITEM TYPE:Action Items AGENDA SECTION:Action Items SUBJECT:Ordinance No. 4, Series of 2023, First Reading, An Ordinance of the Vail Town Council Amending Section 4-1-6 of the Vail Town Code to Exempt Certain Businesses from Local Business License Requirements SUGGESTED ACTION:Approve, approve with amendments, or deny Ordinance No. 4, Series of 2023 PRESENTER(S):Lauren Noll, Sales Tax Administrator VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: Ordinance No. 4, Series 2023.pdf 225 Town of Vail Page 1 Memorandum To: Town Council From: Finance Department Date: February 21, 2023 Subject: Ordinance No. 4, Series 2023, an ordinance exempting certain businesses from local business license requirements I. PURPOSE The purpose of Ordinance No. 4, Series 2023 is to amend business licensing exemptions for certain businesses as defined by Title 4, Chapter 1 of the Vail Town Code to comply with Senate Bill 22-032. II. BACKGROUND Ordinance No. 4, Series 2023 provides an administrative update to the Town’s sales tax code to comply with Senate Bill 22-032. In April of 2022, SB 22-032 was signed into law with the purpose of simplifying and standardizing local business licensing compliance for retailers that do not have a physical presence or have only incidental physical presence within the local taxing jurisdiction. This bill requires the following: • July 1, 2022: The Town may not charge a fee for a local general business license for a retailer that does not have a physical presence within the Town. • July 1, 2023: The Town is prohibited from requiring the retailer to complete a separate business license application. The Department of Revenue (DOR) is required to collect information from retailers that apply for a state standard business license and provide this information in a monthly report to the Town. The Town will retain the authority to revoke a general business license if a retailer violates Town Code. The bill does not apply to businesses with a physical presence in the Town. III. DISCUSSION In practice the Town of Vail already complies with the requirements of SB 22-032. Businesses without a physical presence in Vail are not charged a fee for a business license and the Town does not have a separate application process for these retailers. This practice however is not clearly defined in the Town’s Code. 226 Town of Vail Page 2 Adoption of Ordinance No. 4, Series 2023 will update the Vail Town Code by defining exempt businesses to comply with SB 22-032 while also formalizing current business licensing practices. This update will have no impact on the Town’s current business licensing processes. IV. ACTION REQUESTED FROM COUNCIL Staff requests that Council approve or approve with amendments Ordinance No. 4, Series 2023 upon 1st reading. 227 1 2/15/2023 ORDINANCE NO. 4 SERIES 2023 AN ORDINANCE OF THE VAIL TOWN COUNCIL AMENDING SECTION 4-1-6 OF THE VAIL TOWN CODE TO EXEMPT CERTAIN BUSINESSES FROM LOCAL BUSINESS LICENSE REQUIREMENTS WHEREAS, Senate Bill 22-032 eliminated fees for local business licenses for certain businesses without a physical presence or with only an incidental physical presence in the local taxing jurisdiction; and WHEREAS, the Town desires to amend its business license application process to comply with Senate Bill 22-032. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. Section 4-1-6 of the Vail Town Code is amended by the addition of the following language: * * * (C)A business that has a state standard retail license and makes retail sales within the Town, but has no physical presence in the Town, or only has an incidental presence in the Town, shall be exempt from the requirements of this Chapter. Section 2. If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not effect the validity of the remaining portions of this ordinance; and the Council hereby declares it would have passed this ordinance, and each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. Section 3. The Council hereby finds, determines and declares that this ordinance is necessary and proper for the health, safety and welfare of the Town and the inhabitants thereof. Section 4. The amendment of any provision of the Town Code as provided in this ordinance shall not affect any right which has accrued, any duty imposed, any violation that occurred prior to the effective date hereof, any prosecution commenced, nor any other action or proceeding as commenced under or by virtue of the provision amended. The amendment of any provision hereby shall not revive any provision or any ordinance previously repealed or superseded unless expressly stated herein. Section 5. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are repealed to the extent only of such inconsistency. This repealer 228 2 2/15/2023 shall not be construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore repealed. INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON FIRST READING this ___ day of ______________, 2023 and a public hearing for second reading of this Ordinance set for the _____day of ______________, 2023, in the Council Chambers of the Vail Municipal Building, Vail, Colorado. _____________________________ Kim Langmaid, Mayor ATTEST: ____________________________ Stephanie Bibbens, Town Clerk READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED this ___ day of ______________, 2023. _____________________________ Kim Langmaid, Mayor ATTEST: ____________________________ Stephanie Bibbens, Town Clerk 229