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HomeMy WebLinkAbout2024-02-20 Agenda and Supporting Documentation Town Council Evening Meeting1.Call to Order 2.Citizen Participation (10 min.) 3.Any action as a result of executive session 4.Consent Agenda 4.1 Resolution No. 08, Series of 2024, A Resolution Approving a State of Colorado Subaward Agreement between the Town of Vail and the Colorado Department of Transportation to Receive Funding for the Replacement of Two Electric Buses Approve, approve with amendments, or deny Resolution No. 08, Series of 2024. Background: This grant agreement is for funding related to two battery electric buses that are expected to be delivered later in 2024. This is Federal Transit Administration funding administered through the Colorado Department of Transportation. 4.2 Contract Award to Advanced Network Management, Inc. for Data Center Software Licensing Authorize the Town Manager to enter into an agreement, in a form approved by the Town Attorney, with Advanced Network Management, Inc. for VMWare vSphere Foundation Software Licensing for the Data Center, in an amount not to exceed $135,000.00. Background: The Town uses a combination of state-of-the-art hardware and software in our Data Center. The Data Center VAIL TOWN COUNCIL MEETING Evening Session Agenda Town Council Chambers and virtually by Zoom. Zoom meeting link: https://vail.zoom.us/webinar/register/WN_HWa76fhwQ3qqu4zEGt1W1Q 6:00 PM, February 20, 2024 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. Resolution __ 2024 CDOT_Subaward_Agreement_- electric busses.docx Envelope_Created_Town_of_Vail_2022_5339(b)_.pdf 1 hardware contract was awarded at the Council meeting held on January 2, 2024, and includes 5 years of maintenance and support for the hardware. To match that timeframe, the IT Department requested 5 years of VMWare vSphere licensing. 4.3 Contract Award to GH Daniels III and Associates, Inc. for 2024 Main Vail Roundabout Turf Grass Reduction Project Authorize the Town Manager to enter into an agreement, in a form approved by the Town Attorney, with GH Daniels III and Associates, Inc. for the 2024 Turf Grass Reduction Project, in an amount not to exceed $91,316.80.00. Background: The 2024 Turf Grass Reduction Project is a continuation of the Town's on-going efforts to reduce the amount of non-functional irrigated turf grass. 4.4 Holy Cross Energy Special Agreement Approval Authorize the Town Manager to enter into a special agreement, in a form approved by the Town Attorney, with Holy Cross Energy to allow for the advancement of up to $1,200,000.00 in Community Enhancement Funds for the undergrounding of overhead lines from Spraddle Creek Subdivision to Bald Mountain Road. Background: The Town has been working with Holy Cross Energy to underground over 2 miles of overhead lines from Spraddle Creek Subdivision to Bald Mountain Road over the past 4 years. This has required extensive engineering for the work occurring in the Colorado Department of Transportation Right of Way as well as determining the best route regarding town land. Due to the large expense of the project estimated to be over $5.2 million. The Town has been working on a way to leverage all possible sources of funds. 4.5 Multi-Model Operational Fund E-Delivery Grant Adjustment Authorize the adjustment of the MMOF Grant from $250,000.000 to $295,000.00 for the E-Delivery Program and $250,000.00 to $205,000.00 for the Bollards Pilot. Background: in 2022, the Town of Vail was awarded a grant from the Multi-Model Option Funds for $500,000.00 ($250,000.00 with a $250,000.00 match). This grant was intended to purchase equipment for the E-delivery Program and for the Bollards Pilot. The initial distribution of funds was split $250,000.00 for the E-delivery Program and $250,000.00 for the Bollard Pilot. Due to changes with both programs, staff is requesting permission to change the split of funds. 4.6 Contract Award to Drop Mobility for the Shift Bike Regional Electric Bike Share Program Authorize the Town Manager to enter into an agreement, in a Data Center Software Licensing.pdf Main Vail Roundabout Turf Grass Reduction - TC Memo Contract Award.docx council memo-Holy cross Agreement.docx MMOFgranttocouncil(2).docx 2 form approved by the Town Attorney, with Drop Bike, DBA Drop Mobility, for the Shift Bike Program, in the amount no to exceed $225,000. Background: The Shift Bike Regional Electric Bike Share Program launched in 2022 and expanded by 40% in 2023. Town Council has allocated $225,000 in the 2024 budget for staff to launch the third year of the regional electric bike share program in collaboration with local municipal partners. Staff requests this contract to be awarded to Drop Mobility. 5.Action Items 5.1 Contract Award with Auto Auto Wash for the Installation and Replacement of the Town's Bus Wash 15 min. Re-appropriate the total 2023 savings of $350,000.00 from the Bus Replacement, and $105,000.00 within the Capital Projects Fund to offset a budget shortfall in the Bus Wash Replacement Capital Projects Funds and authorize Town Manager to enter into an agreement, in a form approved by the Town Attorney, with Auto Auto Wash for the replacement and installation of the Town's bus wash, in an amount not to exceed $596,945.00. Presenter(s): Greg Hall, Director of Public Works and Transportation Background: Re-appropriate funds from two projects within the Capital Fund to cover overages needed to replace the Bus Wash Award. 5.2 Contract Award to Cummings Group for Timber Ridge Housing Project 5 min. Authorize the Town Manager to enter into an agreement, in a form approved by the Town Attorney, with Cumming Group for the Timber Ridge Housing project, in an amount not to exceed $241,000.00. Presenter(s): Russell Forrest, Town Manager Background: Requesting Town Council's approval to execute an agreement with Cumming Group to provided preconstruction and construction management services for the Timber Ridge Housing Project 6.Public Hearings 6.1 Ordinance No. 01, Series of 2024, Second Reading, An Ordinance Amending Section 7 of Ordinance No. 22, Series of 2023 Regarding the Effective Date of the Ordinance 5 min. Approve, approve with amendments, or deny Ordinance No. 01, Series of 2024, upon second reading. Presenter(s): Greg Roy, Planning Manager E-Bike Share Contract Memo 022024.docx council memo-Bus Wash 02202024.docx Memo on Project Manager for Timber Ridge.docx 3 Background: The subject property is a portion of the CDOT right-of-way that is proposed to be included as part of the Timber Ridge Subdivision with the Minor Subdivision application (PEC21-0010). The plat to incorporate this area into Lot 1 has not been recorded to date, and the effective date of the zoning designation needs to be amended to ensure appropriate time to allow the plat to be recorded prior to zoning to take effect. Currently the zoning will take effect on March 1, 2024 and the proposed ordinance would amend the date to April 1, 2024. 7.Adjournment 6:35pm (estimate) Ord #1 of 2024 Staff Memo.pdf Ordinance No. 1 Series of 2024.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. 4 AGENDA ITEM NO. 4.1 Item Cover Page DATE:February 20, 2024 SUBMITTED BY:Chris Southwick, Public Works ITEM TYPE:Consent Agenda AGENDA SECTION:Consent Agenda SUBJECT:Resolution No. 08, Series of 2024, A Resolution Approving a State of Colorado Subaward Agreement between the Town of Vail and the Colorado Department of Transportation to Receive Funding for the Replacement of Two Electric Buses SUGGESTED ACTION:Approve, approve with amendments, or deny Resolution No. 08, Series of 2024. VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: Resolution __ 2024 CDOT_Subaward_Agreement_- electric busses.docx Envelope_Created_Town_of_Vail_2022_5339(b)_.pdf 5 RESOLUTION NO. 08 Series of 2024 A RESOLUTION APPROVING A STATE OF COLORADO SUBAWARD AGREEMENT BETWEEN THE TOWN OF VAIL AND THE COLORADO DEPARTMENT OF TRANSPORTATION TO RECEIVE FUNDING FOR THE REPLACEMENT OF TWO ELECTRIC BUSSES WHEREAS,the Town and the Colorado Department of Transportation wish to enter into an agreement for the purpose of providing funding for the replacement of two electric busses 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 4TOWN 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 20th day of February 2024. Travis Coggin,Mayor ATTEST: Stephanie Bibbens, Town Clerk 6 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 1 of 47 Version 10/23/19 STATE OF COLORADO SUBAWARD AGREEMENT COVER PAGE State Agency Department of Transportation Agreement Number / PO Number 24-HTR-ZL-00250 / 491003534 Subrecipient TOWN OF VAIL Agreement Performance Beginning Date The Effective Date Initial Agreement Expiration Date December 31, 2025 Subaward Agreement Amount Federal Funds Maximum Amount (80%) Local Funds Local Match Amount (20%) Agreement Total $1,613,760.00 $403,440.00 $2,017,200.00 Fund Expenditure End Date December 31, 2025 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 §5339(b), the purpose of this Grant is to provide capital funding to improve the condition of the nation’s public transportation bus fleets, expand transportation access to employment, educational, and healthcare facilities, and to improve mobility options in rural and urban areas throughout the country. The work to be completed under this Grant b y the Grantee is more specifically described in Exhibit A. Exhibits and Order of Precedence The following Exhibits and attachments are included with this Agreement: 1. Exhibit A – Statement of Work and Budget. 2. Exhibit B – Sample Option Letter. 3. Exhibit C – Federal Provisions. 4. Exhibit D – Required Federal Contract/Agreement Clauses. 5. Exhibit E – Verification of Payment. In the event of a conflict or inconsistency between this Agreement and any Exhibit or attachment, such conflict or inconsistency shall be resolved by reference to the documents 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 Vail, CO 81657-5096 csouthwick@vailgov.com DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 7 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 2 of 47 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:_____Russell Forrest_______ Title:______Town Manager_______ 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:___________________________ Name:_____Stephanie Bibbens_____ Title:______Town Clerk___________ 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: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 8 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 3 of 47 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 Extension Term then in place, th e 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: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 9 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 4 of 47 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: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 10 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 5 of 47 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 Subrecipient as set forth in this Agreement and shall include any movable material acquired, produced, or delivered by Subrecipient in connection with the Services. P. “Grant Funds” means the funds that have been appropriated, designated, encumbered, or otherwise made available for payment by the State under this Agreement. Q. “Incident” means any accidental or deliberate event that results in or constitutes an imminent threat of the unauthorized access, loss, disclosure, modification, disruption, or destruction of any communications or information resources of the State, which are included as part of the Work, as described in §§24 -37.5-401, et. seq., C.R.S. Incidents include, without limitation (i) successful attempts to gain unauthorized access to a State system or State Records regardless of where such information is located; (ii) unwanted disruption or denial of service; (iii) the unauthorized use of a State system for the processing or storage of data; or (iv) changes to State system hardware, firmware, or software characteristics without the State’s knowledge, instruction, or consent. R. “Initial Term” means the time period defined in §2.B. S. “Master Agreement” means the FTA Master Agreement document incorporated by reference and made part of FTA’s standard terms and conditions governing the administration of a project supported with federal assistance awarded by FTA. T. “Matching Funds” (Local Funds, or Local Match) means the funds provided by Subrecipient as a match required to receive the Grant Funds and includes in -kind contribution. U. “Party” means the State or Subrecipient, and “Parties” means both the State and Subrecipient. V. “PII” means personally identifiable information including, without limitation, any information maintained by the State about an individual that can be used to distinguish or trace an individual’s identity, such as name, social security number, date and place of birth, mother’s maiden name, or biometric records . PII includes, but is not limited to, all information defined as personally identifiable information in §§24 -72-501 and 24- 73-101, C.R.S. W. “Recipient” means the State agency shown on the Signature and Cover Page s of this Agreement, for the purposes of this Federal Award. X. “Services” means the services to be 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, whic h has been communicated, furnished, or disclosed by the State to Subrecipient which (i) is subject to disclosure pursuant to CORA; (ii) is already known to Subrecipient without restrictions at the time of its disclosure to Subrecipient; (iii) is or subsequently becomes publicly available without breach of any obligation owed by Subrecipient to the State; (iv) is disclosed to Subrecipient, without confidentiality obligations, by a third party DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 11 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 6 of 47 Version 10/23/19 who has the right to disclose such information; or (v) was indepen dently developed without reliance on any State Confidential Information. Z. “State Fiscal Rules” means the fiscal rules promulgated by the Colorado State Controller pursuant to §24 - 30-202(13)(a), C.R.S. AA. “State Fiscal Year” means a 12-month period beginning on July 1 of each calendar year and ending on June 30 of the following calendar year. If a single calendar year follows the term, 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: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 12 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 7 of 47 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 involve federal funding and (2) federal laws, rules, and regulations applicable to the Work provide for such retroactive payments to the DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 13 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 8 of 47 Version 10/23/19 Subrecipient. Any such retroactive payments shall comply with State Fiscal Rules and be ma de in accordance with the provisions of this Agreement. ii. The State shall reimburse Subrecipient’s allowable costs, not exceeding the Subaward Maximum Amount shown on the Cover Page of this Agreement and on Exhibit A for all allowable costs described in this Agreement and shown in Exhibit A, except that Subrecipient may adjust the amounts between each line item of Exhibit A without formal modification to this Agreement as long as the Subrecipient provides notice to the State of the change, the change does not modify the Subaward Maximum Amount or the Subaward Maximum Amount for any federal fiscal year or State Fiscal Year, and the change does not modify any requirements of the Work. iii. The State shall only reimburse allowable costs described in this Agreement and shown in the Budget if those costs are: a. Reasonable and necessary to accomplish the Work and for the Goods and Services provided; and b. Equal to the actual net cost to Subrecipient (i.e. the price paid minus any items of value received by Subrecipient that reduce the cost actually incurred). iv. Subrecipient’s costs for Work performed after the Fund Expenditure End Date shown on the Cover Page for this Agreement, or after any phase performance period end date for a respective phase of the 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 quarter or at such time as otherwise specified by the State. B. Litigation Reporting If Subrecipient is served with a pleading or other document in connect ion 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: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 14 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 9 of 47 Version 10/23/19 allowed under 2 CFR Part 180 and 31 U.S.C. 3321, which may include, without limi tation, suspension or debarment. 7. SUBRECIPIENT RECORDS A. Maintenance Subrecipient shall make, keep, maintain, and allow inspection and monitoring by the State of a complete file of all records, documents, communications, notes and other written materials, electronic media files, and communications, pertaining in any manner to the Work and the delivery of Services (including, but not limited to the operation of programs) or Goods hereunder (collectively, the “Subrecipient Records”). Subrecipient shall maintain such records for a period of three years following the date of submission to the State of the final expenditure report, or if this Award is renewed quarterly or annually, from the date of the submission of each quarterly or annual report, respectively (the “Record Retention Period”). If any litigation, claim, or audit related to this Award starts before expiration of the Record Retention Period, the Record Retention Period shall extend until all litigation, claims, or audit findings have been resolved and final action taken by the State or Federal Awarding Agency. The Federal Awarding Agency, a cognizant agency for audit, oversight or indirect costs, and the State, may notify Subrecipient in writing that the Record Retention Period shall be extended. For records for real property and equipment, the Record Retention Period shall extend three years following final disposition of such property. B. Inspection Subrecipient shall permit the State, the federal government, and any other duly authorized agent of a governmental agency to audit, inspect, examine, excerpt, copy and transcribe Subrecipient Records during the Record Retention Period. Subrecipient shall make Subrecipient Records available during normal business hours at Subrecipient’s office or place of business, or at other mutually agreed upon times or locations, upon no fewer than two Business Days’ notice from the State, unless the State determines that a shorter period of notice, or no notice, is necessary to protect the interests of the State. C. Monitoring The State, the federal government, and any other duly authorized agent of a governmental agency, in its discretion, may monitor Subrecipient’s performance of its obligations under this Agreement using procedures as determined by the State or that governmental entity. Subrecipient shall allow the State to perform all monitoring required by the Uniform Guidance, based on the Sta te’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: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 15 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 10 of 47 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 securit y 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 p ossession 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 or 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 practices, 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 mana gement or oversight of this Agreement. DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 16 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 11 of 47 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 the full performance of Subrecipient’s obligations under this Agreement. C. Disclosure to the State If a conflict or the appearance of a conflict arises, or if Subrecipient is uncertain whether a conflict or the appearance of a conflict has arisen, Subrecipient shall submit to the State a disclosure statement setting forth the relevant details for the State’s consideration. Failure to promptly submit a disclosure statement or to follow the State’s direction in regard to the actual or apparent conflict constitutes a breach of this Agreement. D. Subrecipient acknowledges that all State employees are subject to the ethical principles described in §24-18- 105, C.R.S. Subrecipient further acknowledges that State employees may be subject to the requirements of §24-18-105, C.R.S., with regard to this Agreement. For the avoidance of doubt, an actual or apparent conflict of interest shall exist if Subrecipient employs or contracts with any State employee, any former State employee within six months following such employee’s termination of employment with the State, or an y 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: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 17 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 12 of 47 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 p rovide to the State certificates showing Subcontractor insurance coverage required under this Agreement within seven Business Days following Subrecipient’s execution of the subcontract. No later than 15 days before the expiration date of Subrecipient’s or any Subcontractor’s coverage, Subrecipient shall deliver to the State certificates of insurance evidencing renewals of coverage. At any other time during the term of this Agreement, upon request by the State, Subrecipient shall, within seven Business Days following the request by the State, supply to the State evidence satisfactory to the State of compliance with the provisions of this section. 11. BREACH OF AGREEMENT In the event of a Breach of Agreement, the aggrieved Party shall give written notice of breach to the other Party. If the notified Party does not cure the Breach of Agreement, at its sole expense, within 30 days after the delivery of written notice, the Party may exercise any of the remedies as described in §12 for that Party. Notwithstanding any provision of this Agreement to the contrary, the State, in its discretion, need not provide notice or a cure period and may immediately terminate this Agreement in whole or in part or institute any other remedy in this Agreement in order to protect the public interest of the State; or if Subrecipient is debarred or suspended under §24-109-105, C.R.S., the State, in its discretion, need not provide notice or cure period and may terminate this Agreement in whole or in part or institute any other remedy in this Agreement as of the date that the debarment or suspension takes effect. 12. REMEDIES A. State’s Remedies If Subrecipient is in breach under any provision of this Agreement and fails to cure such breach, the State, following the notice and cure period set forth in §11, shall have all of the remedies listed in this section in addition to all other remedies set forth in this Agreement or at law. The State may exercise any or all of the remedies available to it, in its discretion, concurrently or consecutively. i. Termination for Breach of Agreement In the event of Subrecipient’s uncured breach, the State may terminate this entire Agreement or any part of this Agreement. Additionally, if Subrecipient fails to comply with any terms of the Federal Award, then the State may, in its discretion or at the direction of a Federal Awarding Agency, terminate this entire Agreement or any part of this Agreement. Subrecipient shall continue performance of this Agreement to the extent not terminated, if any. DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 18 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 13 of 47 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: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 19 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 14 of 47 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. Excep t 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 Part y 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: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 20 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 15 of 47 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: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 21 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 16 of 47 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: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 22 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 17 of 47 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 C hief 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 not as an employee. Neither Subrecipient nor any agent or employee of Subrecipient shall be deemed to be an agent or employee of the State. Subrecipient shall not have authorization, express or implied, to bind the State to any agreement, liability or understanding, except as expressly set forth herein. Subrecipient and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise provide such coverage for Subrecipient or any of its agents or employees. Subrecipient shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this Agreement. Subrecipient shall (i) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (ii) provide proof thereof when requested by the State, 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 referenc e 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: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 23 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 18 of 47 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 tangible property; or that conflicts with this provision in any way shall be void ab initio. Nothing in this Agreement shall be construed as a waiver of any provision of §24 -106-109, C.R.S. H. SOFTWARE PIRACY PROHIBITION. State or other public funds payable under this Agreement shall not be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. Subrecipient hereby certifies and warrants that, during the term of this Agreement and any extensions, Subrecipient has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that Subrecipient is in violation of this provision, the State may exercise any remedy available at law or in equity or under this Agreement, including, without limitation, immediate termination of this Agreement and any remedy consistent with federal copyright laws or applicable licensing restrictions. I. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. §§24-18-201 and 24-50-507, C.R.S. The signatories aver that to their knowledge, no employee of the State has any personal or beneficial 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 employment in the United St ates 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, notar ized 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: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 24 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 19 of 47 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: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 25 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 20 of 47 Version 10/23/19 EXHIBIT A, STATEMENT OF WORK AND BUDGET Project Description* 2022-5339(b): Two (2) Electric Vehicle Bus Replacements Federal Awarding Agency Federal Transit Administration (FTA) Federal Regional Contact Cindy Terwilliger Federal Award Date** To Be Determined Project End Date December 31, 2025 FAIN** To Be Determined CFDA # 20.526 CFDA Title Bus and Bus Facilities Grants Program Subrecipient Town of Vail 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 WBS*** 22-39-08032.VAIL.111 ALI 11.12.01 Total Project Budget $2,017,200.00 Federal FTA-5339 Funds (at 80% or less) $1,613,760.00 Local Funds (at 20% or more) $403,440.00 Total Project Amount Encumbered via this Subaward Agreement $2,017,200.00 *This is not a research and development grant. **The Federal Award Date and FAIN are not available at the time of execution of this Subaward Agreement. This information will be maintained in COT RAMS, CDOT’s transit awards management system, and will be available upon request. *** The WBS numbers may be replaced without changing the amount of the grant at CDOT’s discretion. A. Project Description Town of Vail shall use 2022 FTA-5339 funds, along with local matching funds, to purchase Two (2) Buses as more fully described below. The purchase will support the goals of the Statewide Transit Plan. Town of Vail shall use capital funds to purchase the following ADA compliant vehicles: ALI QTY Fuel Type Description FTA Amount 11.12.01 2 Electric Battery Replacement Bus STD 40 FT $1,613,760.00 The Capital Asset(s) being purchased is/are replacing the following existing fleet vehicles: VIN Fleet ID COTRAMS Inventory Year Model Make 15GGD3016C1180332 178 INV-00016427 2012 LF40 HEV (G30D) GIL - Gillig Corporation 15GGD3018C1180333 179 INV-00016433 2012 LF40 HEV (G30D) GIL - Gillig Corporation DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 26 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 21 of 47 Version 10/23/19 B. Performance Standards 1. Project Milestones 2. Town of Vail shall use the Capital Asset(s) purchased in its transit operations and shall perform regularly recurring maintenance with specific performance measures tied to Town of Vail’s written maintenance plans, including manufacturer’s recommendations and warranty program(s). Town of Vail will measure whether this project is successful and improves the efficiency, effectiveness, and safety of transportation. 3. Performance will be reviewed throughout the duration of this 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 problems will be resolved; and/or d. Expected impacts and the efforts to recover from delays. 4. Town of Vail must comply and submit all reimbursements and reports associated, including the assignment of “Colorado Department of Transportation” as the lienholder on the Capital Asset(s), as a condition of project closeout. C. Project Budget 1. The Total Project Budget is $2,017,200.00. CDOT will pay no more than 80% of the eligible, actual project costs, up to the maximum amount of $1,613,760.00. CDOT will retain any remaining balance of the federal share of FTA-5339 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 $1,613,760.00 (80%) and matching Local Funds of $403,440.00 (20%), 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 the Total Project Budget. 4. Per the terms of this Subaward Agreement, CDOT shall have no obligation to provide state funds for use on this project. CDOT will administer Federal Funds for this project under the terms of this Subaward Agreement, provided that the federal share of FTA funds to be administered by CDOT are made available and remain available. Town of Vail shall initiate and prosecute to completion Milestone Description Original Estimated Completion Date Submit Procurement Concurrence Request (PCR) to CDOT Project Manager for Approval 3/15/2024 Submit Procurement Authorization (PA) and solicitation docs CDOT Project Manager for Approval 4/30/2024 Take Delivery of (First) Vehicle/Equipment/Project Property 01/31/2025 Take Delivery of and Accept All Vehicles/Equipment/Project Property 2/28/2025 Submit Reimbursement Request in COTRAMS 05/31/2025 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: December 31, 2025. DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 27 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 22 of 47 Version 10/23/19 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. Procurement Procurement of the Capital Asset(s) will comply with state procurement procedures, the DTR Quick Procurement Guide, as well as FTA’s requirements and 2 CFR 200.320. In addition to the state requirements outlined below, state and FTA procedures (where applicable) for purchase of the Capital Asset(s) must be followed and will be outlined prior to purchase. 1. The first step in the procurement process will be to obtain an Independent Cost Estimate (ICE). 2. The second step will be to obtain a Procurement Concurrence Request (PCR) approval from the CDOT Project Manager through COTRAMS. 3. Prior to entering into a purchasing agreement with the selected vendor, Town of V ail shall request a Purchase Authorization (PA), and submit a vendor quote for the Capital Asset(s) in COTRAMS. The PA must identify a manufacturer found on the FTA’s certified transit vehicle manufacturer (TVM) list. Only those TVM’s listed on FTA’s TVM list, or that have submitted a goal methodology to FTA that has been approved or has not been disapproved, at the time of solicitation are eligible to bid on FTA funded vehicle procurements. 4. Upon delivery, Town of Vail shall be responsible for having the Capital Asset(s) inspected and accepted within fifteen (15) calendar days of delivery. If defects prevent acceptance of the Capital Asset(s), Town of Vail will contact the vendor to resolve any defects and notify CDOT. 5. Town of Vail shall be responsible for reimbursing the selected vendor within forty-five (45) calendar days after acceptance of the Capital Asset(s). E. Reimbursement Eligibility Requests for reimbursement for eligible project costs will be paid to Town of Vail upon submission of a complete reimbursement packet in COTRAMS for those eligible costs incurred during the Suba ward Agreement effective dates. Accepted reimbursement packets will include the following completed documents: ● Independent Cost Estimate (ICE) ● Procurement Concurrence Request (PCR) ● Purchase Authorization (PA) ● Signed Notice of Acceptance (NA) ● Signed Security Agreement (SA) ● Application for Title showing “Colorado Department of Transportation” as the lienholder ● Invoice ● Proof of Payment ● Post Delivery Certifications Town of Vail must submit the final invoice within sixty (60) calendar days of acceptance of the Capital Asset(s), and submit a Grant Closeout and Liquidation (GCL) Form in COTRAMS within fifteen (15) calendar days of issuance of the final reimbursement payment. F. Federal Interest-Service Life The useful life of rolling stock begins on the date the vehicle is placed in revenue service and continues until it is removed from revenue service. The minimum useful life in years refers to total time in transit revenue service, not time spent stockpiled or otherwise unavailable for regular transit use. The minimum useful life in miles refers to total miles in transit revenue service. Non-revenue miles and periods of extended removal from service do not count towards useful life. Changes in operating circumstances, including unforeseen difficulty maintainin g vehicles, DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 28 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 23 of 47 Version 10/23/19 higher cost of fuel, and changes in local law limiting where vehicles can be operated are not exemptions from minimum useful life requirements. FTA maintains its share of the remaining federal interest upon disposition of federally assisted pro perty before the end of its useful life or for a value greater than $5,000 after the useful life has been met, according to the provisions of FTA C 5010.E1 Chapter IV(4)(o)(1). Minimum useful life is determined by years of service or accumulation of miles, whichever comes first, in accordance with FTA C. 5010.E1 Chapter IV(4)(f)(2). Town of Vail shall not dispose or otherwise release the Capital Asset(s) to any other party while there is federal interest in the Capital Asset(s) without approval from the CDOT Project Manager. Town of Vail is responsible for making the request to the CDOT Project Manager in a timely manner, providing appropriate documentation, if indicated, when a lien release is being requested in order to allow CDOT to process the release of a lien. CDOT and Town of Vail will work in conjunction with Department of Revenue (DOR) to assure the lien is released according to state rules. G. Training In an effort to enhance transit safety, Town of Vail and any subrecipients and subcontractors shall m ake 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 individuals with disabilities. H. Safety Data Town of Vail and any subrecipients shall maintain and submit, as requested, data related to b us safety. This may include, but not be limited to, the number of vehicle accidents within certain measurement parameters set forth by CDOT, the number and extent of passenger injuries or claims, and the number and extent of employee accidents, injuries, and incidents. I. Restrictions on Lobbying Town of Vail is certifying that it complies with 2 CFR 200.450 by entering into this Subaward Agreement. J. Special Conditions 1. Town of Vail will comply with all requirements imposed by CDOT on Town of Vail so that the federal award is used in accordance with federal statutes, regulations, and the terms and conditions of the federal award. 2. Town of Vail must permit CDOT and their auditors to have access to Town of Vail’s records and financial statements as necessary, with reasonable advance notice. 3. Record retention shall adhere to the requirements outlined in 2 CFR 200.333 and FTA C 5010.1. 4. Except as provided in this Subaward Agreement, Town of Vail shall not be reimbursed for any purchase, issued purchase order, or leased capital equipment prior to the execution of this Subaward Agreement. 5. 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). 6. Town of Vail must obtain CDOT approval, in writing, if FTA funds are intended to be used for DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 29 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 24 of 47 Version 10/23/19 payment of a lease or for third-party contracts. 7. Town of Vail shall document any loss, damage, or theft of FTA- or state-funded property, equipment, or rolling stock in COTRAMS. 8. 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. 9. If receiving FTA 5311 funding, Town of Vail shall maintain and report annually all information required by the National Transit Database (NTD) and any other financial, fleet, or service data. 10. If receiving FTA 5311 or 5339 funding, Town of Vail will ensure subcontractors and subrecipients comply with FTA Drug and Alcohol Regulations. 11. 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. 12. 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 Subrecipients” in CDOT’s Title VI Program Plan and Federal Transit Administration Circular 4702.1B, “Title VI Requirements and Guidelines for FTA Recipients.” The Party shall also facilitate FTA’s compliance with Executive Order 12898 and DOT Order 5610.2(a) by incorporat ing 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.” 13. Town of Vail will provide transportation services to persons with disabilities in accordance with Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq. 14. 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. 15. 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. 16. Town of Vail shall agree to produce and maintain documentation that supports compliance with the Americans with Disabilities Act to CDOT upon request. 17. Town of Vail shall provide CDOT with an equity analysis if the project involves choosing a site or location of a facility in accordance with FTA Circular 4702.1B. 18. 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. 19. Town of Vail will adopt a Transit Asset Management Plan that complies with regulations implementing 49 U.S.C. § 5326(d). 20. Town of Vail shall include nondiscrimination language and the Disadvantaged Business Enterprise (DBE) assurance in all contracts and solicitations in accordance with DBE regulations, 49 CFR Part 26, and CDOT’s DBE program. 21. Meal delivery must not conflict with providing public transportation se rvice or reduce service to public transportation passengers. DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 30 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 25 of 47 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. 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: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 31 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 26 of 47 Version 10/23/19 EXHIBIT C, FEDERAL PROVISIONS 1. APPLICABILITY OF PROVISIONS. 1.1. The Grant 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 Grant, or any attachments or exhibits incorporated into and made a part of the Grant, the provisions of these Federal Provisions shall control. 1.2. The State of Colorado is accountable to Treasury for oversight of their subrecipients, including ensuring their subrecipients comply with federal statutes, Award Terms and Conditions, Treasury’s Final Rule, and reporting requirements, as applicable. 1.3. Additionally, any subrecipient that issues a subaward to another entity (2nd tier subrecipient), must hold the 2nd tier subrecipient accountable to these provisions and adhere to reporting requirements. 1.4. These Federal Provisions are subject to the Award as defined in §2 of these Federal Provisions, as may be revised pursuant to ongoing guidance from the relevant Federal or State of Colorado agency or institutions of higher education. 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 Grant setting forth the terms and conditions of that financial assistance, that a non -Federal Entity receives or administers. 2.1.2. “Entity” means: 2.1.2.1. a Non-Federal Entity; 2.1.2.2. a foreign public entity; 2.1.2.3. a foreign organization; 2.1.2.4. a non-profit organization; 2.1.2.5. a domestic for-profit organization (for 2 CFR parts 25 and 170 only); 2.1.2.6. a foreign non-profit organization (only for 2 CFR part 170) only); 2.1.2.7. a Federal agency, but only as a Subrecipient under an Award or Subaward to a non-Federal entity (or 2 CFR 200.1); or 2.1.2.8. a foreign for-profit organization (for 2 CFR part 170 only). 2.1.3. “Executive” means an officer, managing partner or any other employee in a management position. 2.1.4. “Expenditure Category (EC)” means the category of eligible uses as defined by the US Department of Treasury in “Appendix 1 of the Compliance and Reporting Guidance, State and Local Fiscal Recovery Funds” report available at www.treasury.gov. 2.1.5. “Federal Awarding Agency” means a Federal agency providing a Federal Award to a Recipient as described in 2 CFR 200.1 DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 32 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 27 of 47 Version 10/23/19 2.1.6. “Grant” means the Grant to which these Federal Provisions are attached. 2.1.7. “Grantee” means the party or parties identified as such in the Grant to which these Federal Provisions are attached. 2.1.8. “Non-Federal Entity means a State, local government, Indian tribe, institution of higher education, or nonprofit organization that carries out a Federal Award as a Recipient or a Subrecipient. 2.1.9. “Nonprofit Organization” means any corporation, trust, association, cooperative, or other organization, not including IHEs, that: 2.1.9.1. Is operated primarily for scientific, educational, service, charitable, or similar purposes in the public interest; 2.1.9.2. Is not organized primarily for profit; and 2.1.9.3. Uses net proceeds to maintain, improve, or expand the operations of the organization. 2.1.10. “OMB” means the Executive Office of the President, Office of Management and Budget. 2.1.11. “Pass-through Entity” means a non-Federal Entity that provides a Subaward to a Subrecipient to carry out part of a Federal program. 2.1.12. “Prime Recipient” means the Colorado State agency or institution of higher education identified as the Grantor in the Grant to which these Federal Provisions are attached. 2.1.13. “Subaward” means an award by a Prime 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 Subaward unless the terms and conditions of the Federal Award specifically indicate otherwise in accordance with 2 CFR 200.101. 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” or “Subgrantee” means a non-Federal Entity (or a Federal agency under an Award or Subaward to a non-Federal Entity) receiving Federal funds through a Prime Recipient to support the performance of the Federal project or program for which the Federal funds were awarded. A Subrecipient is subject to the terms and conditions of the Federal Award to the Prime Recipient, including program compliance requirements. The term does not include an individual who is a beneficiary of a federal program. For SLFRF Grants, a subrecipient relationship continues to exist for Expenditure Category 6.1 Revenue Replacement. 2.1.15. “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. “Total Compensation” means the cash and noncash dollar value earned by an Executive during the Prime Recipient’s or Subrecipient’s preceding fiscal year (see 48 CFR 52.204-10, as prescribed in 48 CFR 4.1403(a)) and includes the following: 2.1.15.1. Salary and bonus; 2.1.15.2. Awards of stock, stock options, and stock appreciation rights, using the dollar amount recognized for financial statement reporting purposes with DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 33 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 28 of 47 Version 10/23/19 respect to the fiscal year in accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2005) (FAS 123R), Shared Based Payments; 2.1.15.3. Earnings for services under non-equity incentive plans, not including group life, health, hospitalization or medical reimbursement plans that do not discriminate in favor of Executives and are available generally to all salaried employees; 2.1.15.4. Change in present value of defined benefit and actuarial pension plans; 2.1.15.5. Above-market earnings on deferred compensation which is not tax- qualified; 2.1.15.6. Other compensation, if the aggregate value of all such other compensation (e.g., severance, termination payments, value of life insurance paid on behalf of the employee, perquisites or property) for the Executive exceeds $10,000. 2.1.16. “Transparency Act” means the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109-282), as amended by §6202 of Public Law 110-252. 2.1.17. “Uniform Guidance” means the Office of Management and Budget Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. 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. 2.1.18. “Unique Entity ID Number” means the Unique Entity ID established by the federal government for a Grantee at https://sam.gov/content/home 3. COMPLIANCE. 3.1. Grantee shall comply with all applicable provisions of the Transparency Act and the regulations issued pursuant thereto, all provisions of the Uniform Guidance, and all applicable Federal Laws and regulations required by this Federal Award. 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, at its discretion, may provide written notification to Grantee of such revisions, but such notice shall not be a condition precedent to the effectiveness of such revisions. 3.2. Per US Treasury Final Award requirements, grantee programs or services must not include terms or conditions that undermine efforts to stop COVID-19 or discourage compliance with recommendations and CDC guidelines. 4. SYSTEM FOR AWARD MANAGEMENT (SAM) AND UNIQUE ENTITY ID SYSTEM (UEI) REQUIREMENTS. 4.1. SAM. Grantee shall maintain the currency of its information in SAM until the Grantee submits the final financial report required under the Award or receives final payment, whichever is later. Grantee shall review and update SAM information at least annually. 4.2. UEI. Grantee shall provide its Unique Entity ID to its Prime Recipient, and shall update Grantee’s information in SAM.gov at least annually. DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 34 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 29 of 47 Version 10/23/19 5. TOTAL COMPENSATION. 5.1. Grantee 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 $30,000 or more; and 5.1.2. In the preceding fiscal year, Grantee received: 5.1.2.1. 80% or more of its annual gross revenues from Federal procurement Agreements and Subcontractors and/or Federal financial assistance Awards or Subawards subject to the Transparency Act; and 5.1.2.2. $30,000,000 or more in annual gross revenues from Federal procurement Agreements and Subcontractors and/or Federal financial assistance Awards or Subawards subject to the Transparency Act; and 5.1.2.3. 5.1.2.3 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. If Grantee is a Subrecipient of the Award pursuant to the Transparency Act, Grantee shall report data elements to SAM and to the Prime Recipient as required in this Exhibit. No direct payment shall be made to Grantee for providing any reports required under these Federal Provisions and the cost of producing such reports shall be included in the Grant price. The reporting requirements in this Exhibit are based on guidance from the OMB, and as such are subject to change at any time by OMB. Any such changes shall be automatically incorporated into this Grant and shall become part of Grantee’s obligations under this Grant. 7. EFFECTIVE DATE AND DOLLAR THRESHOLD FOR FEDERAL REPORTING. 7.1. Reporting requirements in §8 below apply to new Awards as of October 1, 2010, if the initial award is $30,000 or more. If the initial Award is below $30,000 but subsequent Award modifications result in a total Award of $30,000 or more, the Award is subject to the reporting requirements as of the date the Award exceeds $30,000. If the initial Award is $30,000 or more, but funding is subsequently de-obligated such that the total award amount falls below $30,000, the Award shall continue to be subject to the reporting requirements. If the total award is below $30,000 no reporting required; if more than $30,000 and less than $50,000 then FFATA reporting is required; and, $50,000 and above SLFRF reporting is required. 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. [INTENTIONALLY DELETED] DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 35 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 30 of 47 Version 10/23/19 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 applicable regulations, provided that the procurements conform to applicable Federal law and the standards identified in the Uniform Guidance, including without limitation, 2 CFR 200.318 through 200.327 thereof. 9.2. Domestic preference for procurements (2 CFR 200.322). As appropriate and to the extent consistent with law, the non-Federal entity should, to the greatest extent practicable under a Federal award, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subawards including all Agreements and purchase orders for work or products under this award. 9.3. 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. 10. ACCESS TO RECORDS. 10.1. A Subrecipient shall permit Prime Recipient and its auditors to have access to Subrecipient’s records and financial statements as necessary for Recipient to meet the requirements of 2 CFR 200.332 (Requirements for pass-through entities), 2 CFR 200.300 (Statutory and national policy requirements) through 2 CFR 200.309 (Period of performance), and Subpart F-Audit Requirements of the Uniform Guidance. 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 2 CFR 200.514 (Scope of audit), except when it elects to have a program-specific audit conducted in accordance with 2 CFR 200.507 (Program- specific audits). The Subrecipient may elect to have a program-specific audit if Subrecipient expends Federal Awards under only one Federal program (excluding research and development) and the Federal program’s statutes, regulations, or the terms and conditions of the Federal award do not require a financial statement audit of Prime Recipient. A program-specific audit may not be elected for research and development unless all of the Federal Awards expended were received from Recipient and Recipient approves in advance a program-specific audit. DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 36 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 31 of 47 Version 10/23/19 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 Subpart F of the Uniform Guidance and ensure it is properly performed and submitted when due in accordance with the Uniform Guidance. Subrecipient shall prepare appropriate financial statements, including the schedule of expenditures of Federal awards in accordance with 2 CFR 200.510 (Financial statements) and provide the auditor with access to personnel, accounts, books, records, supporting documentation, and other information as needed for the auditor to perform the audit required by Uniform Guidance Subpart F-Audit Requirements. 12. GRANT PROVISIONS FOR SUBRECIPIENT AGREEMENTS. 12.1. In addition to other provisions required by the Federal Awarding Agency or the Prime Recipient, Grantees that are Subrecipients shall comply with the following provisions. Subrecipients shall include all of the following applicable provisions in all Subcontractors entered into by it pursuant to this Grant. 12.1.1. [Applicable to federally assisted construction Agreements.] Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all Agreements that meet the definition of “federally assisted construction Agreement” 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 Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 CFR part 60, Office of Federal Agreement Compliance Programs, Equal Employment Opportunity, Department of Labor. 12.1.2. [Applicable to on-site employees working on government-funded construction, alteration and repair projects.] Davis-Bacon Act. Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). 12.1.3. Rights to Inventions Made Under a grant or agreement. If the Federal Award meets the definition of “funding agreement” under 37 CFR 401.2 (a) and the Prime Recipient or Subrecipient wishes to enter into an Agreement 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 agreement,” the Prime Recipient or 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, Agreements and Cooperative Agreements,” and any implementing regulations issued by the Federal Awarding Agency. DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 37 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 32 of 47 Version 10/23/19 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. Agreements and subgrants of amounts in excess of $150,000 must contain a provision that requires the non-Federal awardees 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 Agreement award (see 2 CFR 180.220) must not be made to parties listed on the government wide exclusions in SAM, in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. 12.1.6. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal Agreement, 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. 12.1.7. Never Contract with the Enemy (2 CFR 200.215). Federal awarding agencies and recipients are subject to the regulations implementing “Never Contract with the Enemy” in 2 CFR part 183. The regulations in 2 CFR part 183 affect covered Agreements, grants and cooperative agreements that are expected to exceed $50,000 within the period of performance, are performed outside the United States and its territories, and are in support of a contingency operation in which members of the Armed Forces are actively engaged in hostilities. 12.1.8. Prohibition on certain telecommunications and video surveillance services or equipment (2 CFR 200.216). Grantee is prohibited from obligating or expending loan or grant funds on certain telecommunications and video surveillance services or equipment pursuant to 2 CFR 200.216. DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 38 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 33 of 47 Version 10/23/19 12.1.9. Title VI of the Civil Rights Act. The Subgrantee, Contractor, Subcontractor, transferee, and assignee shall comply with Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal financial assistance from excluding from a program or activity, denying benefits of, or otherwise discriminating against a person on the basis of race, color, or national origin (42 U.S.C. § 2000d et seq.), as implemented by the Department of Treasury’s Title VI regulations, 31 CFR Part 22, which are herein incorporated by reference and made a part of this Agreement (or agreement). Title VI also includes protection to persons with “Limited English Proficiency” in any program or activity receiving federal financial assistance, 42 U.S. C. § 2000d et seq., as implemented by the Department of the Treasury’s Title VI regulations, 31 CRF Part 22, and herein incorporated by reference and made part of this Agreement or agreement. 13. CERTIFICATIONS. 13.1. Subrecipient Certification. Subrecipient shall sign a “State of Colorado Agreement with Recipient of Federal Recovery Funds” Certification Form in Exhibit E and submit to State Agency with signed grant agreement. 13.2. Unless prohibited by Federal statutes or regulations, Prime Recipient may require Subrecipient to submit certifications and representations required by Federal statutes or regulations on an annual basis. 2 CFR 200.208. Submission may be required more frequently if Subrecipient fails to meet a requirement of the Federal award. Subrecipient shall certify in writing to the State at the end of the Award that the project or activity was completed or the level of effort was expended. 2 CFR 200.201(3). If the required level of activity or effort was not carried out, the amount of the Award must be adjusted. 14. EXEMPTIONS. 14.1. These Federal Provisions do not apply to an individual who receives an Award as a natural person, unrelated to any business or non-profit organization he or she may own or operate in his or her name. 14.2. A Grantee 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. 15. EVENT OF DEFAULT AND TERMINATION. 15.1. Failure to comply with these Federal Provisions shall constitute an event of default under the Grant and the State of Colorado may terminate the Grant 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 Grant, at law or in equity. 15.2. Termination (2 CFR 200.340). The Federal Award may be terminated in whole or in part as follows: 15.2.1. By the Federal Awarding Agency or Pass-through Entity, if a Non-Federal Entity fails to comply with the terms and conditions of a Federal Award; 15.2.2. By the Federal awarding agency or Pass-through Entity, to the greatest extent authorized by law, if an award no longer effectuates the program goals or agency priorities; DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 39 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 34 of 47 Version 10/23/19 15.2.3. By the Federal awarding agency or Pass-through Entity with the consent of the Non-Federal Entity, in which case the two parties must agree upon the termination conditions, including the effective date and, in the case of partial termination, the portion to be terminated; 15.2.4. By the Non-Federal Entity upon sending to the Federal Awarding Agency or Pass- through Entity written notification setting forth the reasons for such termination, the effective date, and, in the case of partial termination, the portion to be terminated. However, if the Federal Awarding Agency or Pass-through Entity determines in the case of partial termination that the reduced or modified portion of the Federal Award or Subaward will not accomplish the purposes for which the Federal Award was made, the Federal Awarding Agency or Pass-through Entity may terminate the Federal Award in its entirety; or 15.2.5. By the Federal Awarding Agency or Pass-through Entity pursuant to termination provisions included in the Federal Award. DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 40 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 35 of 47 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 requirements of this section of th e Master Agreement. DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 41 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 36 of 47 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: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 42 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 37 of 47 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 n ot 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 disab ilities; (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. (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; DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 43 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 38 of 47 Version 10/23/19 (2) The Federal Government determines that continuing to provide federal assistance to support the Award does not adequately serve the purposes of the law authorizing the Award; or (3) The Subrecipient has violated the terms of the Agreement, especially if that violation would endanger substantial performance of the Agreement. (b) Financial Implications. In general, termination of federal assistance for the Award will not invalidate obligations properly incurred before the termination date to the extent that the obligations cann ot 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, by 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 th e 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, d ebarred, 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 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 DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 44 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 39 of 47 Version 10/23/19 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 pri or 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, regulations, and requirements, and will follow applicable guidance, including, but not limited to, the Clean Air Act, Clean Water Act, Wild and Scenic Rivers Act of 1968, Coastal Zone 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, DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 45 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 40 of 47 Version 10/23/19 Executive Order No. 11990 relating to “P rotection 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 International Air Transportation Fair Competitive Practices Act of 1974, as amended, 49 U.S.C. § 40118, and U.S. General Services Administration (U.S. GSA) regulations, “Use of United States Flag Air Carriers,” 41 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 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. (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: (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. DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 46 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 41 of 47 Version 10/23/19 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. (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: DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 47 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 42 of 47 Version 10/23/19 (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 assures 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 public transportation it would otherwise receive. Applicable to Planning, Research, Development, and Documentation Projects Section 17. Patent Rights. a. General. The Subrecipient agrees that: (1) Depending on the nature of the Agreement, the Federal Government may acquire patent rights when the Subrecipient or Third Party Participant produces a patented or patentable invention, improvement, or discovery; (2) The Federal Government’s rights arise when the patent or patentable information is conceived or reduced to practice with federal assistance provided through the 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: (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 DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 48 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 43 of 47 Version 10/23/19 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 informatio n 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 report of the Agr eement 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 G overnment may direct. (6) Exception. This section does not apply to an adaptation of any automatic data processing equipment or program that is both for the Subrecipient’s use and acquired with FTA capital program assistance. (e) License Fees and Royalties. Consistent with the applicable U.S. DOT Common Rules, the Subrecipient agrees that license fees and royalties for patents, patent applications, and inventions produced with federal assistance provided through the Agreement are program income and must be used in compliance with federal applicable requirements. DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 49 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 44 of 47 Version 10/23/19 (f) Hold Harmless. Upon request by the Federal Government, the Subrecipient agrees that if it intentionally violates any proprietary rights, copyrights, or right of privacy, and if its violation unde r 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 require ments 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 FT A-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 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: DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 50 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 45 of 47 Version 10/23/19 (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; (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; DocuSign Envelope ID: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 51 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 46 of 47 Version 10/23/19 (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, (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 Contracting Guidance,” to the extent consistent with applicable federal laws, regu lations, 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: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 52 Contract Number: 24-HTR-ZL-00250 / 491003534 Page 47 of 47 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: 88533B10-2FD2-45FB-B2B3-3ACBC9883F1D 53 AGENDA ITEM NO. 4.2 Item Cover Page DATE:February 20, 2024 SUBMITTED BY:TJ Johnson, Information Technology ITEM TYPE:Action Items AGENDA SECTION:Consent Agenda SUBJECT:Contract Award to Advanced Network Management, Inc. for Data Center Software Licensing SUGGESTED ACTION:Authorize the Town Manager to enter into an agreement, in a form approved by the Town Attorney, with Advanced Network Management, Inc. for VMWare vSphere Foundation Software Licensing for the Data Center, in an amount not to exceed $135,000.00. VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: Data Center Software Licensing.pdf 54 To: Vail Town Council From: IT Department Date: February 20, 2024 Subject: Data Center Software Licensing I. PURPOSE Provide the Council information about required software licensing for our data center infrastructure replacement project. Request authorization for the Town Manager to enter into an agreement with Advanced Network Management, Inc. (ANM), to purchase VMWare vSphere Foundation licensing. II. BACKGROUND The Town uses a combination of state-of-the-art hardware and software in our data center. The physical hardware, known as an infrastructure stack, provides the compute resources, storage and networking components necessary to create virtual computing devices and systems. VMWare vSphere software provides the tools to leverage these hardware resources and allows the IT department to create and support the Town’s various servers and virtualized desktop infrastructure (VDI). Those virtual devices, in turn, run the applications and systems that the Town needs to conduct its business. The data center hardware contract was awarded at the Council meeting held on January 2, 2024, and includes 5 years of maintenance and support for the hardware. To match that time frame, the IT department requested 5 years of VMWare vSphere licensing with this RFP and received nine bids. We recommend moving forward with ANM, whose bid came in at $133,580.80. While it was not the lowest bid received, it was reasonably competitive – only $1,230 more than the lowest bid for the full 5 years of licensing. More importantly, we are already working with ANM on our data center project, and their knowledge of the Town of Vail’s VMWare configuration is extensive. Partnering with them on the licensing is likely to save time and ensures a consistent approach to this critical project. This expense is fully covered by our existing approved budget for this project. III. ACTION REQUESTED OF COUNCIL Authorize the Town Manager to enter into an agreement, in a form approved by the Town Attorney, with Advanced Network Management, Inc., to provide the necessary VMWare vSphere licensing for an amount not to exceed $135,000. 55 AGENDA ITEM NO. 4.3 Item Cover Page DATE:February 20, 2024 SUBMITTED BY:Todd Oppenheimer, Public Works ITEM TYPE:Consent Agenda AGENDA SECTION:Consent Agenda SUBJECT:Contract Award to GH Daniels III and Associates, Inc. for 2024 Main Vail Roundabout Turf Grass Reduction Project SUGGESTED ACTION:Authorize the Town Manager to enter into an agreement, in a form approved by the Town Attorney, with GH Daniels III and Associates, Inc. for the 2024 Turf Grass Reduction Project, in an amount not to exceed $91,316.80.00. VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: Main Vail Roundabout Turf Grass Reduction - TC Memo Contract Award.docx 56 To:Vail Town Council From:Department of Public Works Date:February 20, 2024 Subject:Request to Award Contract – 2024 Main Vail Roundabout Turf Grass Reduction Project I.PURPOSE The purpose of this item is to request the Town Council to award a construction contract to GH Daniels III and Associates, Inc. in the amount of $91,316.80 for the 2024 Main Vail Roundabout Turf Grass Reduction Project. II.BACKGROUND The 2024 Turf Grass Reduction Project is a continuation of the Town’s on-going efforts to reduce the amount of non-functional irrigated turf grass. The 2024 project converts over 20,000 square feet, 1/3 acre, of irrigated turf grass to native grass, perennial flowers and shrub plantings. The locations for the 2024 project includes the Main Vail Roundabout center island, 2 small turf grass areas on the south side, and the area east of the Vail Police Department parking lot. The project was put out to competitive bid on January 10, 2024, with 3 bidders responding on January 31, 2024. The lowest responsible bid of $91,316.80 was submitted by GH Daniels III and Associates, Inc. GH Daniels III and Associates, Inc.is a local contractor who has successfully completed numerous other projects for the Town of Vail. III.BUDGET INFORMATION The funding for the 2024 Main Vail Roundabout Turf Grass Reduction Project is included in the 2024 Real Estate Transfer Tax, Recreation Path Maintenance Account. The 2024 budgeted amount in this account is $150K. IV.PROJECT SCHEDULE The contractor has provided a schedule to mobilize construction equipment and begin work preparation work, grading and irrigation on June 15, 2024, and ending on July 15, 2024. V.ACTION REQUESTED BY COUNCIL Staff requests the Council direct the Town Manger to enter into a construction contract with GH Daniels III and Associates, Inc. in the amount of $91,316.80 for the 2024 Turf Grass Reduction Project. VI.STAFF RECOMMENDATION Staff recommends that the Council direct the Town Manger to enter into a construction contract with GH Daniels III and Associates, Inc. in the amount of $91,316.80 for the 2024 Main Vail Roundabout Turf Grass Reduction Project. 57 AGENDA ITEM NO. 4.4 Item Cover Page DATE:February 20, 2024 SUBMITTED BY:Greg Hall, Public Works ITEM TYPE:Consent Agenda AGENDA SECTION:Consent Agenda SUBJECT:Holy Cross Energy Special Agreement Approval SUGGESTED ACTION:Authorize the Town Manager to enter into a special agreement, in a form approved by the Town Attorney, with Holy Cross Energy to allow for the advancement of up to $1,200,000.00 in Community Enhancement Funds for the undergrounding of overhead lines from Spraddle Creek Subdivision to Bald Mountain Road. VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: council memo-Holy cross Agreement.docx 58 To:Town Council From:Greg Hall Director of Public Works and Transportation Date:02/20/2024 Subject:Holy Cross Energy Special Agreement Approval I.ITEM/TOPIC Holy Cross Energy Special Agreement for the undergrounding of the overhead lines from Spraddle Creek Subdivision to Bald Mountain Road II.ACTION REQUESTED OF COUNCIL Authorize the Town Manager to enter into an agreement with Holy Cross Energy allowing for a five-year advancement of Community Enhancements Funds to be used on the undergrounding of overhead lines from Spraddle Creek Subdivision to Bald Mountain Road. III.BACKGROUND The Town has been working with Holy Cross Energy to underground over 2 miles of overhead lines from Spraddle Creek Subdivision to Bald Mountain Road over the past 4 years. This has required extensive engineering for the work occurring in the Colorado Department of Transportation Right of Way as well as determining the best route regarding town land. Due to the large expense of the project estimated to be over $5.2 million. The Town has been working on a way to leverage all possible sources of funds. The 2019 Franchise agreement established an additional 1 percent to be used for undergrounding. The town has been collecting these funds for this purpose. The franchise agreement also establishes a 1 percent community enhancement fund. These funds can be used by the town for undergrounding powerlines and over the past 25 years the town has used our community enhancement funds exclusively for this purpose. This franchise agreement allows up to a three-year advancement by Holy Cross regarding Community Enhancement funds. This agreement will allow for a five- year advancement. The special agreement as well as other Holy Cross funds will provide nearly 50 % of the overall cost. Once the project is bid and a contractor is selected, the town staff will return to the council regarding construction contract award. 59 Town of Vail Page 2 The approval of this agreement is needed now to ensure the five-year advancement is in place prior to bidding the project. IV.STAFF RECOMMENDATION Authorize the Town Manager to enter into a special agreement, in a form approved by the Town Attorney, with Holy Cross Energy to allow for the advancement of up to $1,200,000 in Community Enhancement Funds for the undergrounding of overhead lines from Spraddle Creek Subdivision to Bald Mountain Road. 60 AGENDA ITEM NO. 4.5 Item Cover Page DATE:February 20, 2024 SUBMITTED BY:Stephanie Bibbens, Town Manager ITEM TYPE:Consent Agenda AGENDA SECTION:Consent Agenda SUBJECT:Multi-Model Operational Fund E-Delivery Grant Adjustment SUGGESTED ACTION:Authorize the adjustment of the MMOF Grant from $250,000.000 to $295,000.00 for the E-Delivery Program and $250,000.00 to $205,000.00 for the Bollards Pilot. VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: MMOFgranttocouncil(2).docx 61 February 15, 2024 To:Town Council Through:Russell Forrest Town Manager From:Commander Ryan Kenney Chief of Police Subject:MMOF E-delivery Grant In 2022, the Town of Vail was awarded a grant from the Multi-Model Option Funds for $500,000 ($250,000 with a $250,000 match). This grant was intended to purchase equipment for the E- delivery program and for the bollards pilot. The initial distribution of funds was split $250,000 for the E-delivery program and $250,000 for the bollards pilot. Due to changes with both programs, we are requesting permission to change the split of funds to $295,000 for E-delivery and $205,000 for the bollards pilot. This shift in project budgets will be reflected in the 1 st supplemental later this year. These grant funds were initially slated to buy/replace 5 electric delivery carts. Our vendor, Club Car, has offered to buy out the lease on our three remaining leased carts and sell us three new carts. The three new carts will cost $122,000 and utilize the remaining loading and delivery capital budget within the Capital Projects Fund totaling $122,815. This allows the Town of Vail to own all the carts with bumper-to-bumper warranty for the life of the cart (estimated to be 5 years). Town Engineer, Tom Kassmel has received permission from the grant administrator to make this change. Tom has also confirmed that moving the $45,000 from the bollards pilot will not have a negative affect on the project. We are requesting Council approval to adjust the funds split on the MMOF grant. 62 AGENDA ITEM NO. 4.6 Item Cover Page DATE:February 20, 2024 SUBMITTED BY:Beth Markham, Environmental Sustainability ITEM TYPE:Consent Agenda AGENDA SECTION:Consent Agenda SUBJECT:Contract Award to Drop Mobility for the Shift Bike Regional Electric Bike Share Program SUGGESTED ACTION:Authorize the Town Manager to enter into an agreement, in a form approved by the Town Attorney, with Drop Bike, DBA Drop Mobility, for the Shift Bike Program, in the amount no to exceed $225,000. VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: E-Bike Share Contract Memo 022024.docx 63 To:Vail Town Council From:Environmental Sustainability Department Date:February 20, 2024 Subject:Regional Electric Bike Share Program Contract I.Purpose The purpose of this memo is to request the Vail Town Council to award the regional electric bike share contract to Drop Bike, DBA Drop Mobility in the amount not to exceed $225,000 for the 2024 Shift Bike regional electric bike share program. II.Background The Shift Bike Regional Electric Bike Share Program launched in 2022 with 90 e-bikes and 15 stations in Vail, Eagle-Vail, and Avon. The program was expanded by 40% in 2023 to 155 e- bikes and 33 stations and reached from East Vail to West Edwards. The Vail Town Council allocated $225,000 in the 2024 budget for staff to launch the third year of the regional electric bike share program in collaboration with Town of Avon, EagleVail Metro District, Edwards Metro District, and Eagle County Government. Following the release of an RFP in January 2022 and a rigorous review process, the selection committee comprised of Town of Vail Environmental Sustainability and Public Works Department staff and representatives from Town of Avon and EagleVail Metro District selected Drop Mobility as the vendor to provide the turnkey electric bike share system in Vail, Avon and EagleVail in 2022. The Drop Mobility proposal maximized the budget to provide the largest system possible and provided the most robust operations plan with a demonstrated understanding of this community. The selection committee determined Drop Mobility was the best vendor of those who responded to provide a high quality, effective and robust electric bike share system. After successful implementation of the Shift Bike regional electric bike share in 2022 the partner communities opted to continue working with Drop Mobility to implement the turnkey program in 2023 and again in 2024. The Shift Bike system size will remain the same as it was in 2023 and the total budget from Drop Mobility for the system in 2024 will also remain the same as 2023 at $428,150. Each partner community will contribute the following amount for 2024: Vail (52.2%)- $223,743; Avon (22.6%)- $96,679; EagleVail (9%)- $38,672; Eagle County Government (11.7%)- $50,000; and Edwards Metro District (4.5%)- $19,056. Payments will be made at the following intervals: 50% upon contract execution and 30% upon delivery and installation of the system and 20% at the end of the season. 64 Town of Vail Page 2 This year will be third season the partner communities have worked with Drop Mobility as the vendor and operator of the Shift Bike system. The initial cost of the electric bikes is paid off after 3 years, which will lower the annual leasing cost to the partner communities as each fleet of bikes hits this mark, reducing the overall cost of the annual contracts moving forward. Pending annual appropriations, this will be reflected in 2025 for the initial 90 e-bikes deployed in the inaugural year. The 2024 proposal includes the same system size as 2023 with155 electric bikes and 33 hub stations throughout Vail, EagleVail, Avon, and Edwards. Hardware will be distributed proportionately to funding allocations per community. Vail will again receive 81 bikes and 16 stations, Avon 35 bikes and 9 stations, EagleVail 14 bikes and 3 stations, and Edwards 25 bikes and 5 stations. The budget also includes: deployment, hardware: bikes, racks, wayfinder signage, spare batteries, tools, and spare parts, software customization: including website, mobile app, and dashboard software platform fees: dashboard, app and website maintenance, hosting, data fees, GPS, etc. all operations by a local team: including maintenance, daily rebalancing, charging via swappable batteries, customer service, leasing and running local maintenance shop (or partnering with existing local bike shop), labor costs administrative costs, off-season storage at the Avon warehouse, marketing and community outreach, including a part time local marketing staff person. Drop Mobility will work closely with the partner communities of Vail, Avon, EagleVail, Edwards and Eagle County Government to prepare for successful implementation, including review of locations for stations in each community to ensure they are in the best location to maximize use and convenience. In Vail, the hub stations have been located at: Ellefson Park, Intermountain Pocket Park, West Vail Mall bus stop, Glacier Court Bus Stop, top of Buffehr Creek Rd, Timber Ridge, Middle Creek, Donovan Park, Simba Run bus stop, Lionshead Transit Center, Vail Public Library parking lot, Vail Village Transit Center, Ford Park, Booth Lake trailhead, Pitkin Creek bus stop, and Bighorn Park. The current pricing structure will also be evaluated and revised as needed to reflect community needs. In 2023, every rider received the first ride free up to 30 minutes. The Pay As You Go rate was $3 to unlock the bike and included the first 30 minutes of ride time with $0.40/minute after. Locals only memberships were $100 for the season or $25 per month and included 60 minutes of ride time daily and $0.15/minute thereafter. An early bird membership rate of $75 for a season membership will be available in May. Locals are defined as living, working, or owning property in Eagle County. The equity membership is $25 for the entire season and includes 60 minutes of ride time daily and $0.05/min thereafter. There is no unlock fee on the memberships. The equity membership will be expanded to include senior citizens and people with disabilities. Staff will work with Drop Mobility to provide outreach to the local bike shops to for input on 2024 pricing and education and outreach to inform users of the differences between e-bike share programs (commuting, shorter rides) and e-bike rental programs (longer excursions, multi-day usage, recreation, etc.). Ideally this will create a complimentary program to e-bike rental and sales through local bike shops. A warehouse has been secured in Avon as the base for Shift Bike operations for the 2024 season and an Eagle County based operations team will be hired to operate and maintain the system. The Drop Mobility team is working to secure an electric van to use for day-to-day 65 Town of Vail Page 3 operations including re-balancing of bikes, battery swaps, and maintenance to ensure operations are also in line with greenhouse gas reduction goals of the program. The website and mobile app are both now available in Spanish and the Drop Mobility team will develop a dashboard for the website to show near real-time data for system usage, including miles ridden, number of trips taken, greenhouse gas emissions reduced, and calories burned. How to videos were created and are available on the Shift Bike Instagram page. These will be added to the mobile app and website this year. The marketing efforts in 2024 will be ramped up and include a pre-season campaign in the early spring with an early bird rate on memberships and a membership giveaway. A helmet giveaway program will continue in 2024. On-going marketing will be enhanced throughout the duration of the operating season with a part-time locally based marketing person hired by Drop mobility to collect content for social media, provide on the ground education and outreach at hub stations, and improve overall marketing efforts. Drop Mobility worked with the partner communities to develop a sponsorship packet and will begin outreach to secure sponsors for any potential system expansion. Sponsorships can also reduce the cost to the partner communities. Weather pending, the e-bike share program will launch in early May and run through October 31, 2024. III. Action Requested of Council Staff requests the Vail to Town Council to 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 $225,000 for the execution of the Shift Bike Regional Electric Bike Share Program in 2024. 66 AGENDA ITEM NO. 5.1 Item Cover Page DATE:February 20, 2024 TIME:15 min. SUBMITTED BY:Greg Hall, Public Works ITEM TYPE:Action Items AGENDA SECTION:Action Items SUBJECT:Contract Award with Auto Auto Wash for the Installation and Replacement of the Town's Bus Wash SUGGESTED ACTION:Re-appropriate the total 2023 savings of $350,000.00 from the Bus Replacement, and $105,000.00 within the Capital Projects Fund to offset a budget shortfall in the Bus Wash Replacement Capital Projects Funds and authorize Town Manager to enter into an agreement, in a form approved by the Town Attorney, with Auto Auto Wash for the replacement and installation of the Town's bus wash, in an amount not to exceed $596,945.00. PRESENTER(S):Greg Hall, Director of Public Works and Transportation VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: council memo-Bus Wash 02202024.docx 67 To:Town Council From:Greg Hall Director of Public Works and Transportation Jeff Darnall Fleet Manager Date:02/20/2024 Subject:Budget Adjustment and Contract Award for Bus Wash Replacement I.ITEM/TOPIC Reappropriate funds from two projects within the Capital Fund to cover overages needed to replace the Bus Wash Award a contract to Auto Auto Wash for the Bus Wash Replacement. ACTION REQUESTED OF COUNCIL To Authorize the Town Manager to enter into a contract with Auto Auto Wash. Not to exceed $596,945.00 for the replacement and installation of the town’s bus wash. To reappropriate the total 2023 savings of $350,000 from the Bus Replacement, and $105,000 within the Capital Projects fund to offset a budget shortfall in the Bus Wash Replacement Capital Projects Fund. II.BACKGROUND The town’s bus wash is at the end of its useful life. A total of $300,000 was budgeted for its replacement in the 2023 budget. In establishing the budget for the project, various vendors were asked for a budgetary value for the complete project installation. Town staff asked that it be all inclusive and a turnkey installation. Various vendors stated the amount was all inclusive (equipment, installation, ect.) of the project. The $300,000 budget included in 2023 was based on these preliminary vendor estimates. When the project was put out to a formal bid with the same instructions for vendors to return with a project cost that was inclusive of all work required to replace the bus wash only the cost of the equipment was within the original $300,000 estimated budget. The cost of the electrical and plumbing upgrades necessary by each bid to allow for their specific equipment to operate in our bus wash had not been included in the preliminary estimates. The budget to complete the project with the equipment and the extensive electrical and plumbing is now estimated to cost $650,000, a little over double our 68 Town of Vail Page 2 current budget. To cover the additional cost, staff is requesting to utilize 2023 savings of $350,000 from the Bus Replacement and $105,000 from within the Facility Capital Maintenance projects budget. These will be included as reappropriation requests in the first budget supplemental later this year. Through the bidding process, the town received three bids with two being responsive. The town staff is recommending awarding a contract to Auto Auto Wash for an amount not to exceed $596,945.00 III.STAFF RECOMMENDATION Reappropriate the following budget savings of $245,000 from Bus Replacement and $105,000 from Facility Capital Maintenance in the Capital Projects fund for a total of $350,000 to the Bus Wash Project fund. Authorize the Town Manager to enter into a contract, in a form approved by the Town Attorney, with Auto Auto Wash for the Bus Wash Replacement Project in an amount not to exceed $596,945.00. 69 AGENDA ITEM NO. 5.2 Item Cover Page DATE:February 20, 2024 TIME:5 min. SUBMITTED BY:Stephanie Bibbens, Town Manager ITEM TYPE:Action Items AGENDA SECTION:Action Items SUBJECT:Contract Award to Cummings Group for Timber Ridge Housing Project SUGGESTED ACTION:Authorize the Town Manager to enter into an agreement, in a form approved by the Town Attorney, with Cumming Group for the Timber Ridge Housing project, in an amount not to exceed $241,000.00. PRESENTER(S):Russell Forrest, Town Manager VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: Memo on Project Manager for Timber Ridge.docx 70 Page | 1 TO:Vail Town Council FROM:Russell Forrest, Town Manager George Ruther, Housing Director DATE:February 20, 2024 SUBJECT:Owners Representative Services Contract for Timber Ridge Housing Project I.PURPOSE The purpose of this action item is to request the Town Council’s approval to execute an agreement with Cumming Group to provide preconstruction and construction management services for the Timber Ridge Housing project for an amount not to exceed $241,000. Attached is a proposal for these services. II.BACKGROUND The Town is partnering with Triumph Development to build the Timber Ridge Housing project. The Town will be responsible for financially supporting approximately $38.6 million in infrastructure and podium (foundation and parking level) of the 7 buildings that will constitute the Timber Ridge Housing project. In addition, the Town is planning to purchase building D in the project (44 units) for $26 million. Final pricing should be available in April and the draft HOA documents and proposed HOA fees are being completed within the next month. We are on track to begin demolition and construction starting in May of this year. To manage the Town’s significant investment in this project, staff would propose to retain Cummings Group to provide preconstruction and construction services to work with the Triumph team on managing costs and ensuring quality construction of the Timber Ridge project. We have communicated with Triumph regarding the desire to have a construction manager representing the Town engaged with the project team and participate in the bid process for construction and oversight of the infrastructure and podium construction of Timber Ridge. In 2023, the Town issued a request for proposals and qualifications for owner’s representative/construction management services. Cumming Group was chosen in this competitive process to support Dobson ice rink and other construction projects that were being planned in the future. The contract is for time and material not to exceed $241,000. Staff would propose that the Timber Ridge project pay for this cost but that the housing fund reimburse the project for this cost. 71 Page | 2 III.ACTION REQUESTED The Town Council is requested to make a motion to direct the Town Manager to execute a contract with Cumming Group for an amount not to exceed $241,000 to provide owners representative services for the Timber Ridge Housing project. 72 AGENDA ITEM NO. 6.1 Item Cover Page DATE:February 20, 2024 TIME:5 min. SUBMITTED BY:Steph Johnson, Community Development ITEM TYPE:Ordinance AGENDA SECTION:Public Hearings SUBJECT:Ordinance No. 01, Series of 2024, Second Reading, An Ordinance Amending Section 7 of Ordinance No. 22, Series of 2023 Regarding the Effective Date of the Ordinance SUGGESTED ACTION:Approve, approve with amendments, or deny Ordinance No. 01, Series of 2024, upon second reading. PRESENTER(S):Greg Roy, Planning Manager VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: Ord #1 of 2024 Staff Memo.pdf Ordinance No. 1 Series of 2024.pdf 73 TO: Town Council FROM: Community Development Department DATE: February 20, 2024 SUBJECT: Second reading of Ordinance No. 1, Series of 2024, an ordinance amending Section 7 of Ordinance No. 22, Series of 2023 regarding the effective date of the ordinance. Applicant: Town of Vail Planner: Greg Roy, Planning Manager I. SUMMARY The applicant, Town of Vail, is requesting a change to the effective date of zone district boundary amendment, to designate Housing District zoning to a previous portion of CDOT right-of-way that has no zoning designation. II. ACTION REQUESTED OF THE TOWN COUNCIL The Vail Town Council shall approve, approve with modifications, or deny Ordinance No. 1, Series of 2024 on second reading. III. DESCRIPTION OF REQUEST This application proposes to amend the effective date of the designation of the zoning of the portion of CDOT right-of-way being incorporated into Timber Ridge Subdivision Lot 1 as Housing. The area of right-of-way to be added to Lot 1 does not currently have a zoning designation as zoning is not applied to right -of-way. As this property is proposed to be incorporated into Lot 1 with the Minor Subdivision application (PEC21-0010), a consistent zoning designation is needed. A. Ordinance No. 1, Series of 2024 IV. BACKGROUND 74 Town of Vail Page 2 The subject property is a portion of the CDOT right-of-way that is proposed to be included as part of the Timber Ridge Subdivision with the Minor Subdivision application (PEC21 - 0010). The plat to incorporate this area into Lot 1 has not been recorded to date, and the effective date of the zoning designation needs to be amended to ensure appropriate time to allow the plat to be recorded prior to zoning taking effect. Currently the zoning will take effect on March 1, 2024 and the proposed ordinance would amen d the date to April 1, 2024. As the Town is currently not the owner of this property, CDOT has given permission for the Town to enter the entitlements process. Right-of-way does not carry a land use designation and is not assigned a zone district. Since this property is proposed to be incorporated into the greater Lot 1 of Timber Ridge Subdivision, the property needs to be assigned a land use and a zoning designation. For consistency, the proposed High Density Residential land use and Housing zone district will result in uniform land use and zoning designations. In 2013 the property was subdivided into two lots and the eastern portion of the property was redeveloped. In this process, 102 apartments were demolished and replaced with 113 new units. The western portion of the property that is the subject of this application has remained largely the same since it was constructed with only minor changes to the building and site. V. RECOMMENDED MOTION Should the Vail Town Council choose to approve Ordinance No. 1, Series of 2024, on second reading, the Planning and Environmental Commission recommends the Council pass the following motion: “The Vail Town Council approves, on second reading, Ordinance No.1, Series of 2024, an ordinance amending Section 7 of Ordinance No. 22, Series of 2023 regarding the effective date of the ordinance.” Should the Vail Town Council choose to approve Ordinance No. 1 Series of 2024, the Planning and Environmental Commission recommends the Council make the following findings: “The Vail Town Council 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; and 75 Town of Vail Page 3 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.” Vl. ATTACHMENTS A. Ordinance No. 1, Series of 2024 76 ORDINANCE NO. 1 SERIES 2024 AN ORDINANCE AMENDING SECTION 7 OF ORDINANCE NO. 22, SERIES OF 2023 REGARDING THE EFFECTIVE DATE OF THE ORDINANCE WHEREAS, on November 21, 2023 the Town Council gave final approval to Ordinance No. 22, Series of 2023 (“Ordinance 22”), which is a rezoning of a portion of Lot 1, Timber Ridge Subdivision from undesignated to Housing (H); WHEREAS, Ordinance 22 has an effective date of March 1, 2024; and WHEREAS, the Town Council desires to change the effective date of Ordinance 22 to April 1, 2024. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. Section 7 of Ordinance 22 is hereby amended to read as follows: Section 7. This ordinance shall take effect on April 1, 2024. 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 affect 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 Town Council hereby finds, determines and declares that this ordinance is necessary and proper for the health, safety and welfare of the Town and the inhabitants thereof. Section 4. The amendment of any provision of the Vail Town Code as provided in this ordinance shall not affect any right which has accrued, any duty imposed, any violation that occurred prior to the effective date hereof, any prosecution commenced, nor any other action or proceeding as commenced under or by virtue of the provision amended. The amendment of any provision hereby shall not revive any provision or any ordinance previously repealed or superseded unless expressly stated herein. Section 5. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are repealed to the extent only of such inconsistency. This repealer shall not be construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore repealed. INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON FIRST READING this 6th day of February, 2024 and a 77 2 2/1/2024 public hearing for second reading of this Ordinance set for the 20th day of February, 2024, in the Council Chambers of the Vail Municipal Building, Vail, Colorado. _____________________________ Travis Coggin, Mayor ATTEST: ____________________________ Stephanie Bibbens, Town Clerk READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED this 20th day of February, 2024. _____________________________ Travis Coggin, Mayor ATTEST: ____________________________ Stephanie Bibbens, Town Clerk 78