HomeMy WebLinkAboutPACKET Town Board 2025-02-25The Mission of the Town of Estes Park is to provide high-quality, reliable services
for the benefit of our citizens, guests, and employees, while being good stewards
of public resources and our natural setting.
BOARD OF TRUSTEES - TOWN OF ESTES PARK
Tuesday, February 25, 2025
7:00 p.m.
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ADVANCED PUBLIC COMMENT
By Public Comment Form: Members of the public may provide written public comment on a specific
agenda item by completing the form found at https://dms.estes.org/forms/TownBoardPublicComment.
The form must be submitted by 12:00 p.m. the day of the meeting in order to be provided to the Town
Board prior to the meeting. All comments will be provided to the Board for consideration during the
agenda item and added to the final packet.
PLEDGE OF ALLEGIANCE.
(Any person desiring to participate, please join the Board in the Pledge of Allegiance).
AGENDA APPROVAL.
PUBLIC COMMENT. (Please state your name and address).
TOWN BOARD COMMENTS / LIAISON REPORTS.
TOWN ADMINISTRATOR REPORT.
CONSENT AGENDA:
1. Bills - https://dms.estes.org/WebLink/browse.aspx?id=253208.
2. Town Board Meeting and Study Session Minutes dated February 11, 2025.
3. Estes Park Planning Commission minutes dated January 21, 2025 (acknowledgment
only).
4. Resolution 13-25 Intergovernmental Agreement with the Colorado Department of
Transportation for Fiscal Year 2025 Federal Transit Administration 5311 Baseline
Rural Area Formula Grant Funds to Support Estes Transit (The Peak) PO 491003850.
Prepared 2025-01-14
*Revised
NOTE: The Town Board reserves the right to consider other appropriate items not available at the time the agenda was
prepared.
5. Resolution 14-25 Contract with E&M Concrete, LLC for 2025 Concrete Repairs
$107,961 - Budgeted.
6. Appointment of Town Treasurer/Town Clerk Pro Tem Tammy Zimmerman.
REPORTS AND DISCUSSION ITEMS: (Outside Entities).
1. ESTES NONPROFIT NETWORK UPDATE AND CHECK IN. Executive Director
Kraft.
ACTION ITEMS:
1. RESOLUTION 15-25 REAFFIRMING SUPPORT FOR IMMIGRATION REFORM.
Town Administrator Machalek.
Consider a resolution to reaffirm the content of Resolution 10-18 Supporting
Immigration Reform.
2. SPRUCE KNOB AND CARRIAGE HILLS WATER SYSTEM IMPROVEMENTS &
LOAN AGREEMENT: Director Bergsten.
RESOLUTION 16-25 First Amendment to the Spruce Knob Bulk Water Service
Agreement Extending the term to December 31, 2025.
RESOLUTION 17-25 Voluntary Water Service Agreement with Spruce Knob
Property Owners.
ORDINANCE 02-25 $5 Million, 20-Year, 3.25% Interest, State Revolving Fund
Loan Agreement with Colorado Water Resource & Power Development
Authority containing $1,500,00 in Loan Forgiveness for Spruce Knob and
Carriage Hills Water System Improvements.
3. INTERVIEW COMMITTEE FOR THE ESTES PARK HOUSING AUTHORITY BOARD
OF COMMISSIONERS. Town Clerk Williamson.
To consider two Board of Trustees to hold interviews for a vacancy on the Board of
Commissioners.
ADJOURN.
Town of Estes Park, Larimer County, Colorado, February 11, 2025
Minutes of a Regular meeting of the Board of Trustees of the Town of Estes
Park, Larimer County, Colorado. Meeting held in the Town Hall in said Town
of Estes Park on the 11th day of February, 2025.
Present: Gary Hall, Mayor
Marie Cenac, Mayor Pro Tem
Trustees Bill Brown
Kirby Hazelton
Mark Igel
Frank Lancaster
Also Present: Travis Machalek, Town Administrator
Dan Kramer, Town Attorney
Bunny Victoria Beers, Deputy Town Clerk
Absent: Trustee Cindy Younglund and Deputy Town Administrator
Damweber
Mayor Hall called the meeting to order at 7:00 p.m. and all desiring to do so, recited the
Pledge of Allegiance.
AGENDA APPROVAL.
It was moved and seconded (Hazelton/Brown) to approve the Agenda, and it passed
unanimously.
PUBLIC COMMENTS.
Nick Thomas/County Resident spoke regarding the vacation home license waitlist stating
support for removing the moratorium and accepting applications for residentially zoned
vacation home licenses. He stated properties with a license have a significantly higher
resale value than properties without, impacting property values and the housing market
in the community.
TRUSTEE COMMENTS.
Trustee Brown spoke regarding rezoning and a recent Board decision to deny a rezoning
application. He spoke regarding the 1999 Estes Valley rezoning based on the existing
use at that time, elements of a change in circumstance, growth in the community, the
need for workforce housing and housing scarcity.
Remaining Board comments were heard and have been summarized: Restorative Justice
to host a deliberative engagement series jointly with the Library; Visit Estes Park CEO
finalist presented to the search committee and presentations were available online; the
Colorado Association of Ski Towns meeting discussions focused on housing , cost of
living, barriers for residents in mountain communities and geothermal energy concepts;
Estes Arts District welcomed a new Executive Director and would be pursuing the
Colorado Creative Districts designation, and Transportation Advisory Board meetings
would be recorded and available on the Town’s YouTube channel.
Larimer Emergency Telephone Authority (LETA) have filed a formal complaint against
CenturyLink with the Colorado Public Utilities Commission (PUC) for lack of redundancy
in the Estes Valley. The Board directed staff to produce a letter signed by the Mayor in
support of redundancy in the Estes Valley for the 911 emergency line.
TOWN ADMINISTRATOR REPORT.
None.
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Board of Trustees – February 11, 2025 – Page 2
CONSENT AGENDA:
1. Bills.
2. Town Board Meeting and Study Session Minutes dated January 28, 2025.
3. Resolution 10-25 Intergovernmental Agreement with the Colorado Department of
Transportation for the Downtown Estes Loop Project (OLA#: 331002864).
4. Resolution 11-25 Professional Services Contract with J-U-B Engineers, Inc. for
Engineering and Design Services for Trail Design along US34 and SH7 - $549,564
Budgeted.
5. Resolution 12-25 Professional Services Agreement Amendment with JVA
Engineering for the Prospect Mountain Water System Improvements Project -
$384,500 Budgeted.
6. Estes Valley Public Library District Board Appointment of Cynthia Morriss for a four
(4) year term beginning January 1, 2025 and ending December 31, 2028.
It was moved and seconded (Cenac/Brown) to approve Consent Agenda items 1
through 5, and it passed unanimously.
Clarification was requested and provided for appointments presented within the consent
agenda for taxing districts without an elected board.
It was moved and seconded (Cenac/Brown) to approve Consent Agenda item 6, and
it passed unanimously.
ACTION ITEMS:
FINAL 2024 STRATEGIC PLAN PROGRESS REPORT AND AMENDED 2025
STRATEGIC PLAN. Town Administrator Machalek provided the final 2024 Strategic
Plan progress report and presented amendments to the 2025 Strategic Plan. The
2024 plan included 55 objectives of which 28 were completed or ongoing objectives
in 2024, three (3) were ongoing or multi-year objectives, and 24 were incomplete. Staff
did not recommend carry over for eight (8) of the incomplete objectives, seven of which
were already included in the 2025 plan. To engage effectively Town Administrator
Machalek stated the 2026 process would be reflective of a realistic number of projects
representive of public engagement on those changes in the community. Staff
anticipated a busy year with projects at various stages of completion. Performance
metrics were set at 80% for projects completed. Board comments have been
summarized: questioned the date of the comments within the status report; whether
the rehabilitation of West Elkhorn Avenue had been scheduled; whether the Town was
awarded Broadband Equity Access and Deployment (BEAD) grant funding; concerns
were heard regarding the Police Chief’s capacity to act as the Emergency Manager
due to the level of workload necessary for that position in a disaster situation
encouraged staff to consider an alternate senior staff member; status of the US34
Corridor Study, and consolidating multiple references to the Visitor Center parking lot
improvements. Kent Smith/Town resident commended staff on the comprehensive
material provided within the packet. It was moved and seconded
(Lancaster/Hazelton) to approve the amended 2025 Strategic Plan as presented,
and it passed unanimously.
Whereupon Mayor Hall adjourned the meeting at 7:47 p.m.
Gary Hall, Mayor
Bunny Victoria Beers, Deputy Town Clerk
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Town of Estes Park, Larimer County, Colorado February 11, 2025
Minutes of a Study Session meeting of the TOWN BOARD of the Town of
Estes Park, Larimer County, Colorado. Meeting held at Town Hall in the
Board Room in said Town of Estes Park on the 11th day of February, 2025.
Board: Mayor Hall, Mayor Pro Tem Cenac, Trustees Brown,
Hazelton, Igel, Lancaster, and Younglund
Attending: Mayor Hall, Mayor Pro Tem Cenac, Trustees Brown,
Hazelton, Igel, and Lancaster
Also Attending: Town Administrator Machalek, Attorney Kramer, Manager
Klein and Town Clerk Williamson
Absent: Trustee Younglund and Deputy Town Administrator
Damweber
Mayor Hall called the meeting to order at 4:21 p.m.
DOWNTOWN PARKING MANAGEMENT PLAN REVIEW. Manager Klein provided an
overview of the plan adopted by the Town Board on January 23, 2018 which contained
four implementation phases. The four primary goals included enhancing the ease of
visitor access to downtown by encouraging parking turnover, encourage the use of
parking lots outside of downtown, improve the use of multimodal transportation options,
and identify cost effective options for expanding parking supply in downtown. He
reviewed each phase assumptions, recommendations and action completed by staff.
Phase 1 highlights consisted of performing 19 public outreach meetings and collected
195 comments from the public, hired a staff manager to implement the Phase 1
recommendations in 2018, 2019, 2020, and updated time-limited signage, expanded
wayfinding signage, and mobilized a License Plate Recognition vehicle. Phase 2
consisted of hiring a contractor, The Car Park, to implement a paid parking rate of
$2/hour in 682 parking spaces in 2021-2025 with program revenue covering expenses
each year and contributed to transit operational costs in 2024, installed 15 pay stations,
one mobile LPR unit, one stationary LPR unit, and 5 hand-held ticketing units, and
revised residential permit from 1 hour to 2 hours free per day. Phase 3 and 4 have not
been operationalized by staff. Staff stated a recent question was posed on the impacts
of a year-round parking plan that was free. Staff stated the impact would likely result in
the downtown parking spaces being occupied by long term parkers, especially during
the 150 peak visitor days; individuals would overstay the parking limits and accept the
parking tickets creating less turnover; comments from business owner and visitors on
where to park and businesses owners voicing concern on available parking for
customers without time limited spots; and how to fund parking enforcement without the
associated revenues from paid parking.
Board discussion ensued and has been summarized: questioned with the Loop
completed if paid parking would assist with traffic flow and turnover; it remains difficult to
isolate the impacts of paid parking on the congestion; how are parking enforcement and
monetizing parking impacting parking management downtown; the Town has an
opportunity to pause paid parking to determine the impact of the Loop and timed entry
has on congestion; paid parking cultivates a negative impression of the community;
would suggest a review of the plan and evaluate next steps by taking a holistic view of
parking as there are different issues to address throughout the year; questioned if there
are enough parking ambassadors; commented there are a number of factors impacting
the downtown experience with parking as one factor; concern was raised on
jeopardizing the progress that has been made with parking and traffic improvements by
eliminating paid parking, even for one year; paid parking has become a norm in
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Town Board Study Session – February 11, 2025 – Page 2
comparable communities; the cost of implementing year-round parking management
would be cost prohibitive; and the parking plan was adopted as a cost neutral plan.
Staff comments were summarized: a travel time analysis was conducted in the past
years and demonstrated the year after implementation of paid parking there was a
reduction in travel time; reverting to free parking would come at a cost to parking space
availability and the turnover rate; and demand base pricing would assist with the
turnover rate during certain times of the year or during event specific days.
BIG HORN PARKING STRUCTURE CONSTRUCTION FUNDING. Manager Klein
provided a brief history on previous discussion with the Town Board on the concept,
design, and construction of the parking structure located at the corner of Big Horn and
Cleave. At the May 14, 2024 study session, the Town Board directed staff to issue a
formal request for proposals for the design of a 3-level parking structure with
approximately 136 parking spaces, and an alternative to include costs for designing the
structural and utility components for a future additional level for housing. Proposals
were received in August 2024 and the second ranked fee proposal of approximately
$461,000 exceeded the funds available. Staff has identified additional funds from the
savings realized with the completion of the Community Drive roundabout that could be
reallocated to the project. The Board directed staff to come forward early in 2025 to
discuss available General Fund revenue to supplement the Parking Fund and discuss
financing and debt service options for the design. Staff outlined recommended steps to
be taken in 2025 if the Board agreed to move forward with the project, including seeking
a budget amendment to identify required funds to complete the design work and enter
into a contract with the second ranked fee proposal, inform the community of the need
to fund the annual debt service for the parking structure construction loan, outline the
parking fee and/or scope changes needed in 2026 to service the construction debt
beginning in 2026 through 2046, and the Town Board to consider a loan or
lease/purchase agreement sufficient to pay for the construction and financing of the
parking structure. Staff further laid out options to pay for the debt services on the
construction of a parking structure in 2026, noting a number of options are available
including increasing the hourly parking rate from $2 to $2.75 or adding additional
downtown paid parking spaces.
Board discussion ensued and has been summarized: questioned how the businesses
along West Elkhorn Avenue viewed the proposed parking structure; may be the perfect
location for employee parking; what other options are available to expand parking
downtown; this project needs to be reviewed with other Town priorities; supports the
need for accessible parking downtown, for those living in the area, and for those
accessing businesses on Cleave Street; concerned with the long term potential in the
area as there may be a higher potential for the area than a parking garage; and
concerned that additional funds are being spent on another parking garage when the
current parking garage remains underutilized during the peak season. Board consensus
was to move forward with the design cost for the project and bring forward a budget
amendment as identified by staff. After further conversation on how to pay for the
construction of the project, the Board’s general direction was to increase the number of
paid parking spaces downtown rather than increasing the cost to park downtown.
Staff noted there are six additional locations identified to expand downtown parking;
however, this location was noted as the highest priority due to the removal of parking
spaces during the Cleave Street construction.
Mayor Hall called a 15 minute break for dinner at 5:26 pm and reconvened the meeting
at 5:42 p.m.
DISCUSS REVIEW OF TOWN PROCESS FOR APPROVING HIGH-IMPACT
PROJECTS. Trustee Igel requested a review of Town processes, specifically around
the consideration and approval of high-impact projects. If the Board would like to
proceed with a review two options would be available: 1) Deputy Town Administrator
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Town Board Study Session – February 11, 2025 – Page 3
Damweber would complete an in-house review of processes, or 2) the Board may direct
staff to complete a Request for Proposal (RFP) to hire a consultant to complete the
review. A refined scope would need to be developed with specific elements outlined for
a consultant before issuing the RFP.
Board discussion was heard and summarized: commented on the need to review
projects from a priority perspective and then look for grants rather than finding projects
for available grants; developing a review process for projects on what the Town may do
differently and how to improve implementation on future projects; concerned that staff
may perceive direction from the Board during discussions that has not be directly
provided; stated large capital projects can span different Boards and are carryover from
previous Boards; the strategic plan should drive projects in a cooperative process with
the staff and the Board; the Town has a workable process and the review could be an
educational opportunity for the public; and a standard flowchart should be developed on
how the Town makes decisions for major projects. The Board consensus was to have
Deputy Town Administrator Damweber review the process that would include
recommendations on what may require an after-action process for projects.
FUTURE STUDY SESSION AGENDA ITEMS.
It was requested and determined to add a discussion on the vacation home waitlist and
the State Wildfire Code to the approved and unscheduled list.
Trustee Lancaster suggested a joint study session with the Planning Commission to
discuss rezoning, the criteria for rezoning, and definition of workforce housing and
associated bonuses for density. Trustee Brown agreed and suggested the use of a
facilitator.
COMMENTS & QUESTIONS.
None.
There being no further business, Mayor Hall adjourned the meeting at 6:22 p.m.
Jackie Williamson, Town Clerk
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Town of Estes Park, Larimer County, Colorado, January 21, 2025
Minutes of a Regular meeting of the ESTES PARK PLANNING COMMISSION of the
Town of Estes Park, Larimer County, Colorado. Meeting was held in said Town of Estes
Park on January 21, 2025.
Commission: Chair Charles Cooper, Vice Chair David Arterburn, Dick
Mulhern, Chris Pawson, Jeff Robbins
Attending: Commissioners Cooper, Arterburn, Pawson, Mulhern,
Robbins, Senior Planner Hornbeck, Planner Kara Washam,
Town Attorney Dan Kramer, Recording Secretary Karin
Swanlund, Community Development Director Steve Careccia,
Town Board Liaison Frank Lancaster
Absent: None
Chair Cooper called the meeting to order at 1:30 p.m.
INTRODUCTIONS
AGENDA APPROVAL
It was moved and seconded (Arterburn/Robbins) to approve the agenda. The motion
passed 5-0.
CONSENT AGENDA APPROVAL
It was moved and seconded (Mulhern/Robbins) to approve the consent agenda. The
motion passed 5-0.
PUBLIC COMMENT:
Jed Eidi, 607 Longs Drive, expressed his confusion over the current definition of
workforce housing, emphasizing the need for affordability in housing development.
Kristine Poppitz, 650 Devon Drive, raised concerns about the time of day Planning
Commission meetings are held, which often hamper public participation. Many citizens
cannot attend meetings during working hours, indicating a need for better scheduling
and notification practices to enhance community involvement. She also reiterated her
desire to be on the Development Code rewrite committee.
DISCUSSION:
Staff provided the Planning Commission with an overview of the criteria established in
the Development Code for the review of code amendments (rezonings) and then
solicited Commission discussion and feedback. As this was an information item, no
formal action from the Commission was required or taken.
The Commission discussed the review criteria and other matters, as summarized below:
Criteria for Rezoning: A few Commissioners mentioned that the rezoning criteria are not
specific enough, leading to varying interpretations among staff, public and Commission
members. A more precise, detailed framework is needed to guide decision-making and
ensure consistency in evaluating future proposals.
Misalignment of Definitions: The current definitions of workforce housing do not
adequately address affordability, leading to confusion. One Commissioner commented
that the term "workforce housing" has been misinterpreted as an increase in density
rather than a means to provide affordable housing options for essential workers.
Developer Interests vs. Community Needs: A Commissioner stated that Developers
often leverage workforce housing provisions to increase housing density, which can
benefit them financially but does not necessarily meet residents' needs. The Planning
Commission must ensure that such developments align with community affordability
goals.
Planning Commission – January 21, 2025 – Page 2
Economic Justification Required: A Commissioner stated that the Commission's ability
to make informed decisions is impeded by the absence of economic data to support
claims about housing needs. Future proposals should include comprehensive economic
analyses to justify density increases and housing developments.
The Role of the Comprehensive Plan: Staff stated that the Comprehensive Plan is an
essential document for guiding development, but as an overall aspirational vision, it
requires interpretation and application to specific zoning cases. The Commission
discussed that they must evaluate how the Plan's goals translate into actionable plans
for individual properties.
Need for Development Code Clarity: As the town prepares to update the Development
Code, there is an opportunity to refine definitions and criteria to better align with the
Comprehensive Plan, community values and expectations. This could help avoid
confusion and ensure that future developments are appropriate and beneficial to the
community.
There being no further business, Chair Cooper adjourned the meeting at 2:37 p.m.
_________________________________
Chuck Cooper, Chair
Karin Swanlund, Recording Secretary
PUBLIC WORKS Memo
To: Honorable Mayor Hall
Board of Trustees
Through: Town Administrator Machalek
From: Dana Klein, CPP, CCTM, Parking & Transit Manager
Greg Muhonen, PE, Public Works Director
Date: February 25, 2025
RE: Resolution 13-25 Intergovernmental Agreement with the Colorado
Department of Transportation for Fiscal Year 2025 Federal Transit
Administration 5311 Rural Area Formula Grant Funds to Support Estes
Transit (The Peak) PO 491003850
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER______________
QUASI-JUDICIAL YES NO
Objective:
Public Works (PW) staff seek Town Board approval of an intergovernmental agreement
(IGA) with the Colorado Department of Transportation (CDOT) for Federal Transit
Administration (FTA) 5311 Rural Area Formula Funds to support Estes Transit (The
Peak) administration and operation.
Present Situation:
The FTA 5311 Program provides funding for rural areas (with populations under 50,000)
that operate fixed-route or demand-response general public transit services. This is the
first of two FY 2025 awards from this federal funding source.
In the late fall of 2024, the Town was notified that Estes Transit (The Peak) would
receive $102,132 in FY 2025 FTA 5311 funding under the “Baseline” award, which
covers Administrative and Operating costs.
In late January 2025, Public Works received notification from CDOT of the subaward
agreement and IGA for execution.
Proposal:
PW staff recommend approval of the IGA with CDOT as presented.
Advantages:
•Supplement the Town’s General Fund allocation for administration and operation
of The Peak (Estes Transit) in 2025.
•Continue providing an ongoing, annual source of funding that, while not
guaranteed, is considered stable due to the program’s longevity.
• Supports the Town Board’s Strategic Plan Key Outcome Area, Transportation,
along with several multi-year goals.
Disadvantages:
• Applying for and receiving grant funding is accompanied by additional
administrative burdens; however, Town staff have recent experience managing
federal grants of this type.
Action Recommended:
Town Board approval of Resolution 13-25.
Finance/Resource Impact:
Current Impact: The breakdown of the award is as follows:
• Administrative Portion: $20,000, with a $5,000 local match.
• Operating Portion: $82,132, with a matching local contribution of $82,132.
The local match, $87,132, is budgeted in 101-5600-456-22-60.
Future Ongoing or One-Time Impacts: None anticipated at this time.
Level of Public Interest
Public interest in this item is likely to be low.
Sample Motion:
I move for the approval/denial of Resolution 13-25.
Attachments:
1. Resolution 13-25
2. LINK - CDOT Subaward Agreement
RESOLUTION 13-25
APPROVING AN INTERGOVERNMENTAL AGREEMENT WITH THE COLORADO
DEPARTMENT OF TRANSPORTATION FOR FEDERAL TRANSIT ADMINISTRATION
5311 RURAL AREA FORMULA FUNDS TO SUPPORT THE PEAK
WHEREAS, the Town Board desires to enter the intergovernmental agreement
referenced in the title of this resolution for the purpose of accepting Fiscal Year 2025
Federal Transit Administration (FTA) 5311 Rural Area Program Funds to support the
administration and operation of The Peak; and
WHEREAS, the Town Board commits to maintaining the existence of public
transportation services in 2025 in support of the goals outlined on page 20 of the
subaward agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF
THE TOWN OF ESTES PARK, COLORADO:
The Board approves, and authorizes the Mayor to sign, the intergovernmental
agreement referenced in the title of this resolution in substantially the form now before
the Board.
DATED this day of , 2025.
TOWN OF ESTES PARK
Mayor
ATTEST:
Town Clerk
APPROVED AS TO FORM:
Town Attorney
ATTACHMENT 1
Contract Number: 25-HTR-ZL-00162 / PO: 491003850
Page 1 of 47 Version 10/23/19
STATE OF COLORADO SUBAWARD AGREEMENT
COVER PAGE
State Agency
Department of Transportation
Agreement Number / PO Number
25-HTR-ZL-00162 / 491003850
Subrecipient
Town of Estes Park
Agreement Performance Beginning Date
The Effective Date
Initial Agreement Expiration Date
December 31, 2025 Subaward Agreement Amount
Federal Funds-Administrative
Maximum Amount (80%)
Local Funds-Administrative
Local Match Amount (20%)
Federal Funds-Operating
Maximum Amount (50%)
Local Funds-Operating
Local Match Amount (50%)
Agreement Total
$20,000.00
$5,000.00
$82,132.00
$82,132.00
$189,264.00
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 §5311, the purpose of this Agreement is to provide capital, planning, and
operating assistance to states to support public transportation in rural areas with populations less than 50,000,
where many residents often rely on public transit to reach their destinations. The work to be completed under
this Agreement by the Subrecipient is more specifically described in Exhibit A.
Exhibits and Order of Precedence
The following Exhibits and attachments are included with this Agreement:
1.Exhibit A – Statement of Work and Budget.
2.Exhibit B – Sample Option Letter.
3.Exhibit C – Federal Provisions.
4.Exhibit D – Required Federal Contract/Agreement Clauses.
5. Exhibit E – Verification of Payment.
In the event of a conflict or inconsistency between this Agreement and any Exhibit or attachment, such
conflict or inconsistency shall be resolved by reference to the documents in the following order of priority:
1.Exhibit C – Federal Provisions.
2.Exhibit D – Required Federal Contract/Agreement Clauses.
3.Colorado Special Provisions in §17 of the main body of this Agreement.
4.The provisions of the other sections of the main body of this Agreement.
5.Exhibit A – Statement of Work and Budget.
6. Executed Option Letters (if any).
Principal Representatives
For the State:
Robin Rocke
Division of Transit and Rail
Colorado Dept. of Transportation
2829 W. Howard Place
Denver, CO 80204
robin.rocke@state.co.us
For Subrecipient:
Dana Klein
Town of Estes Park
P.O. Box 1200
Estes Park, CO 80517-1200
dklein@estes.org
Docusign Envelope ID: 301314BB-EA49-4273-9331-F4EC5CAC763A ATTACHMENT 2
Contract Number: 25-HTR-ZL-00162 / PO: 491003850
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 ESTES PARK
By:_________________________
Name:_____Gary Hall_______
Title:____Mayor (or Designee)____
Date: _________________________
STATE OF COLORADO
Jared S. Polis, Governor
Department of Transportation
Shoshana M. Lew, Executive Director
By:_______________________
Name:________________________
Title:__________________________
Date: _________________________
2nd Subrecipient Signature – Town Attorney
By:_______________________
Name:____Dan Kramer__________
Title:_____Town Attorney________
Date: _________________________
3rd Subrecipient Signature – Town Clerk
By:_________________________
Name:____Jackie Williamson______
Title:_____Town Clerk___________
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: 301314BB-EA49-4273-9331-F4EC5CAC763A
Contract Number: 25-HTR-ZL-00162 / PO: 491003850
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.
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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 unle ss 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 s tayed 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.
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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, which 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
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who has the right to disclose such information; or (v) was independently develope d 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 wi th 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 pr eviously
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.
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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 pa yment, 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
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Subrecipient. Any such retroactive payments shall comply with State Fiscal Rules and be made in
accordance with the provisions of this Agreement.
ii. The State shall reimburse Subrecipient’s allowable costs, not exceeding the Subaward Maximum
Amount shown on the Cover Page of this Agreement and on Exhibit A for all allowable costs described
in this Agreement and shown in Exhibit A, except that Subrecipient may adjust the amounts between
each line item of Exhibit A without formal modification to this Agreement as long as the Subrecipient
provides notice to the State of the change, the change does not modify the Subaward Maximum Amount
or the Subaward Maximum Amount for any federal fiscal year or State Fiscal Year, and the change does
not modify any requirements of the Work.
iii. The State shall only reimburse allowable costs described in this Agreement and shown in the Budget if
those costs are:
a. Reasonable and necessary to accomplish the Work and for the Goods and Services provided; and
b. Equal to the actual net cost to Subrecipient (i.e. the price paid minus any items of value received by
Subrecipient that reduce the cost actually incurred).
iv. Subrecipient’s costs for Work performed after the Fund Expenditure End Date shown on the Cover Page
for this Agreement, or after any phase performance period end date for a respective phase of the Work,
shall not be reimbursable. Subrecipient shall initiate any payment request by submitting invoices to the
State in the form and manner set forth and approved by the State .
E. Close-Out
Subrecipient shall close out this Award within 45 days after the Fund Expenditure End Date shown on the
Cover Page for this Agreement. To complete close-out, Subrecipient shall submit to the State all Deliverables
(including documentation) as defined in this Agreement and Subrecipient’s final reimbursement request or
invoice. The State will withhold 5% of allowable costs until all final documentation has been submitted and
accepted by the State as substantially complete. If the Federal Awarding Agency has not closed this Federal
Award within one year and 90 days after the Fund Expenditure End Date shown on the Cover Page for this
Agreement due to Subrecipient’s failure to submit required documentation, then Subrecipient may be
prohibited from applying for new Federal Awards through the State until such documentation is submitted
and accepted.
6. REPORTING - NOTIFICATION
A. Quarterly Reports
In addition to any reports required pursuant to any other Exhibit, for any Agreement having a term longer
than three months, Subrecipient shall submit, on a quarterly basis, a written report specifying progress made
for each specified performance measure and standard in this Agreement. Such progress report shall be in
accordance with the procedures developed and prescribed by the State. Progress reports shall be submitted
to the State not later than five Business Days following the end of each calendar quar ter or at such time as
otherwise specified by the State.
B. Litigation Reporting
If Subrecipient is served with a pleading or other document in connection with an action before a court or
other administrative decision making body, and such pleading or document relates to this Agreement or may
affect Subrecipient’s ability to perform its obligations under this Agreement, Subrecipient shall, within 10
days after being served, notify the State of such action and deliver copies of such pleading or document to
the State’s Principal Representative identified on the Cover Page for this Agreement.
C. Performance and Final Status
Subrecipient shall submit all financial, performance and other reports to the State no later than 45 calendar
days after the end of the Initial Term if no Extension Terms are exercised, or the final Extension Term
exercised by the State, containing an evaluation and review of Subrecipient’s performance and the final status
of Subrecipient’s obligations hereunder.
D. Violations Reporting
Subrecipient shall disclose, in a timely manner, in writing to the State and the Federal Awarding Agency, all
violations of federal or State criminal law involving fraud, bribery, or gratuity violations potentially affecting
the Federal Award. The State or the Federal Awarding Agency may impose any penalties for noncompliance
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allowed under 2 CFR Part 180 and 31 U.S.C. 3321, which may include, without limitation, suspension or
debarment.
7. SUBRECIPIENT RECORDS
A. Maintenance
Subrecipient shall make, keep, maintain, and allow inspection and monitoring by the State of a complete file
of all records, documents, communications, notes and other written materials, electronic media files, and
communications, pertaining in any manner to the Work and the delivery of S ervices (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 age ncy, 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 State’s risk analysis of Subrecipient and this
Agreement. The State shall have the right, in its sole discretion, to change its monitoring procedures and
requirements at any time during the term of this Agreement. The State shall monitor Subrecipient’s
performance in a manner that does not unduly interfere with Subrecipient’s performance of the Work.
D. Final Audit Report
Subrecipient shall promptly submit to the State a copy of any final audit report of an audit performed on
Subrecipient’s records that relates to or affects this Agreement or the Work, whether the audit is conducted
by Subrecipient or a third party. Additionally, if Subrecipient is required to perform a single audit under 2
CFR 200.501, et. seq., then Subrecipient shall submit a copy of the results of that audit to the State within
the same timelines as the submission to the federal government.
8. CONFIDENTIAL INFORMATION - STATE RECORDS
A. Confidentiality
Subrecipient shall keep confidential, and cause all Subcontractors to keep confidential, all State Records,
unless those State Records are publicly available. Subrecipient shall not, without prior written approval of
the State, use, publish, copy, disclose to any third party, or permit the use by any thir d 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.
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Subrecipient shall ensure all such agents, employees, assigns, and Subcontractors sign agreements containing
nondisclosure provisions at least as protective as those in this Agreement, and that the nondisclosure
provisions are in force at all times the agent, employee, assign or Subcontractor has access to any State
Confidential Information. Subrecipient shall provide copies of those signed nondisclosure provisions to the
State upon execution of the nondisclosure provisions if requested by the State.
C. Use, Security, and Retention
Subrecipient shall use, hold and maintain State Confidential Information in compliance with any and all
applicable laws and regulations only in facilities located within the United States, and shall maintain a secure
environment that ensures confidentiality of all State Confidential Information. Subrecipient shall provide the
State with access, subject to Subrecipient’s reasonable security requirements, for purposes of inspecting and
monitoring access and use of State Confidential Information and evaluating security control effectiveness.
Upon the expiration or termination of this Agreement, Subrecipient shall return State Records provided to
Subrecipient or destroy such State Records and certify to the State that it has done so, as directed by the State.
If Subrecipient is prevented by law or regulation from returning or destroying State Confidential Information,
Subrecipient warrants it will guarantee the confidentiality of, and cease to use, such State Confidential
Information.
D. Incident Notice and Remediation
If Subrecipient becomes aware of any Incident, Subrecipient shall notify the State immediately and cooperate
with the State regarding recovery, remediation, and the necessity to involve law enforcement, as determined
by the State. Unless Subrecipient can establish that Subrecipient and its agents, employees, and
Subcontractors are not the cause or source of the Incident, Subrecipient shall be responsible for t he cost of
notifying each person who may have been impacted by the Incident. After an Incident, Subrecipient shall
take steps to reduce the risk of incurring a similar type of Incident in the future as directed by the State, which
may include, but is not limited to, developing and implementing a remediation plan that is approved by the
State at no additional cost to the State. The State may adjust or direct modifications to this plan, in its sole
discretion and Subrecipient shall make all modifications as directed by the State. If Subrecipient cannot
produce its analysis and plan within the allotted time, the State, in its sole discretion, may perform such
analysis and produce a remediation plan, and Subrecipient shall reimburse the State for the reasonable costs
thereof. The State may, in its sole discretion and at Subrecipient’s sole expense, require Subrecipient to
engage the services of an independent, qualified, State-approved third party to conduct a security audit.
Subrecipient shall provide the State with the results of such audit and evidence of Subrecipient’s planned
remediation in response to any negative findings.
E. Data Protection and Handling
Subrecipient shall ensure that all State Records and Work Product in the possession of Subrecipient or any
Subcontractors are protected and handled in accordance with the requirements of this Agreement, including
the requirements of any Exhibits hereto, at all times. As used in this section, the protections afforded Work
Product only apply to Work Product that requires confidential treatment.
F. Safeguarding PII
If Subrecipient or any of its Subcontractors will 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 encryp tion, security
inspections, and audits. Subrecipient shall be a “Third -Party Service Provider” as defined in §24-73-
103(1)(i), C.R.S., and shall maintain security procedures and practices consistent with §§24 -73-101 et seq.,
C.R.S.
9. CONFLICTS OF INTEREST
A. Actual Conflicts of Interest
Subrecipient shall not engage in any business or activities or maintain any relationships that conflict in any
way with the full performance of the obligations of Subrecipient under this Agreement. Such a conflict of
interest would arise when a Subrecipient or Subcontractor’s employee, officer or agent were to offer or
provide any tangible personal benefit to an employee of the State, or any member of his or her immediate
family or his or her partner, related to the award of, entry into or management or oversight of this Agreement.
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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 Sta te, or any
immediate family member of such current or former State employee. Subrecipient shall provide a disclosure
statement as described in §9.C. no later than ten days following entry into a contractual or employment
relationship as described in this section. Failure to timely submit a disclosure statement shall constitute a
Breach of Agreement. Subrecipient may also be subject to such penalties as are allowed by law.
10. INSURANCE
Subrecipient shall obtain and maintain, and ensure that each Subcontractor shall obtain and maintain, insurance
as specified in this section at all times during the term of this Agreement. All insurance policies required by this
Agreement that are not provided through self-insurance shall be issued by insurance companies as approved by
the State.
A. Workers’ Compensation
Workers’ compensation insurance as required by state statute, and employers’ liability insurance covering
all Subrecipient or Subcontractor employees acting within the course and scope of their employment.
B. General Liability
Commercial general liability insurance covering premises operations, fire damage, independent contractors,
products and completed operations, blanket contractual liability, personal injury, and advertising liability
with minimum limits as follows:
i. $1,000,000 each occurrence;
ii. $1,000,000 general aggregate;
iii. $1,000,000 products and completed operations aggregate; and
iv. $50,000 any 1 fire.
C. Automobile Liability
Automobile liability insurance covering any auto (including owned, hired and non-owned autos) with a
minimum limit of $1,000,000 each accident combined single limit .
D. Additional Insured
The State shall be named as additional insured on all commercial general liability policies (leases and
construction contracts require additional insured coverage for completed operations) required of Subrecipient
and Subcontractors.
E. Primacy of Coverage
Coverage required of Subrecipient and each Subcontractor shall be primary over any insurance or self-
insurance program carried by Subrecipient or the State.
F. Cancellation
All insurance policies shall include provisions preventing cancellation or non -renewal, except for
cancellation based on non-payment of premiums, without at least 30 days prior notice to Subrecipient and
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Subrecipient shall forward such notice to the State in accordance with §14 within seven days of
Subrecipient’s receipt of such notice.
G. Subrogation Waiver
All insurance policies secured or maintained by Subrecipient or its Subcontractors in relation to this
Agreement shall include clauses stating that each carrier shall waive all rights of recovery under subrogation
or otherwise against Subrecipient or the State, its agencies, institutions, organizations, officers, agents,
employees, and volunteers.
H. Public Entities
If Subrecipient is a "public entity" within the meaning of the Colorado Governmental Immunity Act, §24 -
10-101, et seq., C.R.S. (the “GIA”), Subrecipient shall maintain, in lieu of the liability insurance requirements
stated above, at all times during the term of this Agreement such liability insurance, by commercial policy or
self-insurance, as is necessary to meet its liabilities under the GIA. If a Subcontractor is a public entity within
the meaning of the GIA, Subrecipient shall ensure that the Subcontractor maintain at all times during the
terms of this Subrecipient, in lieu of the liability insurance requirements stated above, such liability insurance,
by commercial policy or self-insurance, as is necessary to meet the Subcontractor’s obligations under the
GIA.
I. Certificates
For each insurance plan provided by Subrecipient under this Agreement, Subrecipient shall provide to the
State certificates evidencing Subrecipient’s insurance coverage required in this Agreement prior to the
Effective Date. Subrecipient shall provide to the State certificates evidencing Subcontractor insurance
coverage required under this Agreement prior to the Effective Date, except that, if Subrecipient’s subcontract
is not in effect as of the Effective Date, Subrecipient shall provide to the 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.
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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 out standing
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 oth erwise
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 t hat 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;
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(ii) replace the Work with noninfringing Work or modify the Work so that it becomes noninfringing;
or, (iii) remove any infringing Work and refund the amount paid for such Work to the State.
B. Subrecipient’s Remedies
If the State is in breach of any provision of this Agreement and does not cure such breach, Subrecipient,
following the notice and cure period in §11 and the dispute resolution process in §13 shall have all remedies
available at law and equity.
13. DISPUTE RESOLUTION
A. Initial Resolution
Except as herein specifically provided otherwise, disputes concerning the performance of this Agreement
which cannot be resolved by the designated Agreement representatives shall be referred in writing to a senior
departmental management staff member designated by the State and a senior manager designated by
Subrecipient for resolution.
B. Resolution of Controversies
If the initial resolution described in §13.A fails to resolve the dispute within 10 Business Days, Subrecipient
shall submit any alleged breach of this Agreement by the State to the Procurement Official of the State
Agency named on the Cover Page of this Agreement as described in §24-101-301(30), C.R.S., for resolution
following the same resolution of controversies process as described in §§24 -106-109, and 24-109-101.1
through 24-109-505, C.R.S., (collectively, the “Resolution Statutes”), except that if Subrecipient wishes to
challenge any decision rendered by the Procurement Official, Subrecipient’s challenge shall be an appeal to
the executive director of the Department of Personnel and Administration, or their delegate, in the same
manner as described in the Resolution Statutes before Subrecipient pursues any further action. Except as
otherwise stated in this Section, all requirements of the Resolution Statutes shall apply including, without
limitation, time limitations regardless of whether the Colorado Procurement Code applies to this Agreement .
14. NOTICES and REPRESENTATIVES
Each individual identified as a Principal Representative on the Cover P age for this Agreement shall be the
principal representative of the designating Party. All notices required or permitted to be given under this
Agreement shall be in writing, and shall be delivered (A) by hand with receipt required, (B) by certified or
registered mail to such Party’s principal representative at the address set forth on the Cover Page for this
Agreement or (C) as an email with read receipt requested to the principal representative at the email address, if
any, set forth on the Cover Page for this Agreement. If a Party delivers a notice to another through email and the
email is undeliverable, then, unless the Party has been provided with an alternate email contact, the Party
delivering the notice shall deliver the notice by hand with receipt required or by certified or registered mail to
such Party’s principal representative at the address set forth on the Cover Page for this Agreement. Either Party
may change its principal representative or principal representative contact information, or may designate specific
other individuals to receive certain types of notices in addition to or in lieu of a principal representative, by notice
submitted in accordance with this section without a formal amendment to this Agreement. Unless otherwise
provided in this Agreement, notices shall be effective upon delivery of the written notice.
15. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION
A. Work Product
Subrecipient agrees to provide to the State a royalty-free, non-exclusive and irrevocable license to reproduce
publish or otherwise use and to authorize others to use the Work Product described herein, for the Federal
Awarding Agency’s and State’s purposes. All Work Product shall be delivered to the State by Subrecipient
upon completion or termination hereof.
B. Exclusive Property of the State
Except to the extent specifically provided elsewhere in this Agreement, all State Records, documents, text,
software (including source code), research, reports, proposals, specifications, plans, notes, studies, data,
images, photographs, negatives, pictures, drawings, designs, models, surveys, maps, materials, ideas,
concepts, know-how, and information provided by or on behalf of the State to Subrecipient are the exclusive
property of the State (collectively, “State Materials”). Subrecipient shall not use, willingly allow, cause or
permit Work Product or State Materials to be used for any purpose other than the performance of
Subrecipient’s obligations in this Agreement without the prior written consent of the State. Upon termination
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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 othe rwise 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.
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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 require d 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
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Subcontractor, all license, certifications, permits and other authorizations required to perform their
obligations in relation to this Agreement.
ii. Subrecipient, if a foreign corporation or other foreign entity transacting business in the State of Colorado,
shall obtain prior to the Effective Date and maintain at all times during the term of this Agreement, at its
sole expense, a certificate of authority to transact business in the State of Colorado and designate a
registered agent in Colorado to accept service of process.
T. Federal Provisions
Subrecipient shall comply with all applicable requirements of Exhibits C and D at all times during the term
of this Agreement.
17. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3)
These Special Provisions apply to all agreements except where noted in italics.
A. STATUTORY APPROVAL. §24-30-202(1), C.R.S.
This Agreement shall not be valid until it has been approved by the Colorado State Controller or designee.
If this Agreement is for a Major Information Technology Project, as defined in §24 -37.5-102(2.6), C.R.S.,
then this Agreement shall not be valid until it has been approved by the State’s Chief Information Officer or
designee.
B. FUND AVAILABILITY. §24-30-202(5.5), C.R.S.
Financial obligations of the State payable after the current State Fiscal Year are contingent upon f unds 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 req uired by law,
(ii) provide proof thereof when requested by the State, and (iii) be solely responsible for its acts and
those of its employees and agents.
E. COMPLIANCE WITH LAW.
Subrecipient shall comply with all applicable federal and State laws, rules, and regulations in effect or
hereafter established, including, without limitation, laws applicable to discrimination and unfair employment
practices.
F. CHOICE OF LAW, JURISDICTION, AND VENUE.
Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation,
execution, and enforcement of this Agreement. Any provision included or incorporated herein by reference
which conflicts with said laws, rules, and regulations shall be null and void. All suits or actions related to this
Agreement shall be filed and proceedings held in the State of Colorado and exclusive venue shall be in the
City and County of Denver.
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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 States
to perform work under this Agreement, through participation in the E-Verify Program or the State verification
program established pursuant to §8-17.5-102(5)(c), C.R.S., Subrecipient shall not knowingly employ or
contract with an illegal alien to perform work under this Agreement or enter into a contract with a
Subcontractor that fails to certify to Subrecipient that the Subcontractor shall not knowingly employ or
contract with an illegal alien to perform work under this Agreement. Subrecipient (i) shall not use E-Verify
Program or the program procedures of the Colorado Department of Labor and Employment (“Department
Program”) to undertake pre-employment screening of job applicants while this Agreement is being
performed, (ii) shall notify the Subcontractor and the contracting State agency or institution of higher
education within three days if Subrecipient has actual knowledge that a Subcontractor is employing or
contracting with an illegal alien for work under this Agreement, (iii) shall terminate the subcontract if a
Subcontractor does not stop employing or contracting with the illegal alien within three days of receiving the
notice, and (iv) shall comply with reasonable requests made in the course of an investigation, undertaken
pursuant to §8-17.5-102(5), C.R.S., by the Colorado Department of Labor and Employment. If Subrecipient
participates in the Department program, Subrecipient shall deliver to the contracting State agency, Institution
of Higher Education or political subdivision, a written, notarized affirmation, affirming that Subrecipient has
examined the legal work status of such emplo yee, and shall comply with all of the other requirements of the
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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 po litical 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.
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EXHIBIT A, STATEMENT OF WORK AND BUDGET
Project Description* 2025-5311: Admin & Operating
Federal Awarding Agency Federal Transit Administration (FTA)
Federal Regional Contact Cindy Terwilliger
Year of Funding and Federal Funding Source FFY 2024 FTA-5311
CFDA Title Formula Grants for Rural Areas Program
CFDA # 20.509 FAIN** To Be Determined
Federal Award Date** To Be Determined
Project End Date December 31, 2025
Subrecipient Estes Park, Town of UEID # KNMKSMB6JNW5
Contact Name Dana Klein Vendor # 2000306
Address PO Box 1200
Estes Park, CO 80517-1200
Phone # (970) 577-3577
Email dklein@estes.org Indirect Rate NA
Total Project Budget $189,264.00
Budget WBS*** ALI Federal Funds Local Funds Total
Administrative 24-11-5044.ESTE.620 11.79.00 80% $20,000.00 20% $5,000.00 $25,000.00
Operating 24-11-4044.ESTE.300 30.09.01 50% $82,132.00 50% $82,132.00 $164,264.00
Total Project Amount Encumbered via this Subaward Agreement $189,264.00
*This is not a research and development grant.
**The FAIN and/or Federal Award Date are not available at the time of execution of this Subaward Agreement.
This information will be maintained in COTRAMS, CDOT’s transit awards management system, and will be
provided to Town of Estes Park there once obtained.
***The WBS numbers may be replaced without changing the amount of the grant at CDOT’s discretion.
A. Project Description
Town of Estes Park shall use FTA-5311 funds, along with local matching funds, to maintain the existence of public
transportation services through the following goals:
1. Enhance access to health care, education, employment, public services, recreation, social
transactions, and other basic needs;
2. Assist in the maintenance, development, improvement and use of public transportation in their
Transportation Planning Region (TPR);
3. Encourage and facilitate the most efficient use of all transportation funds used to provide
passenger transportation in their TPR through the coordination of programs and services; and
4. Encourage mobility management, employment -related transportation alternatives, joint
development practices, and transit-oriented development.
This funding is provided to support the services described above for calendar year 2025 (January 1 – December 31).
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B. Performance Standards
1. Project Milestones
Milestone Description Original Estimated
Completion Date
Submit Initial Reimbursement Request in COTRAMS 2/15/2025
Submit Progress Reports to Project Manager 4/28/2025
Submit Final Reimbursement Request in COTRAMS 12/31/2025
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.
2. Performance will be reviewed throughout the duration of this Subaward Agreement. Town of
Estes Park 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.
3. Town of Estes Park shall report on performance using the Program Measure Report in
COTRAMS:
a. Performance measures established for the FTA Section 5311 Program (Funds Expended,
Fare Revenues, Sources of Expended Funds, Service Data, and Volunteer Resources) will
be tracked and reported on by Town of Estes Park.
4. Performance will be reviewed based on:
a. Completion of quarterly 5311 Program Measure Reports in COTRAMS, and
b. Completion of the annual National Transit Database (NTD) Report.
5. 5311 Program Measure Reports shall be submitted in COTRAMS by Town of Estes Park on or
before the following due dates:
a. Quarter 1 due April 28th;
b. Quarter 2 due July 28th;
c. Quarter 3 due October 28th; and
d. Annual Report, including Quarter 4, due January 28th.
6. Town of Estes Park shall assist CDOT with Disadvantaged Business Enterprise (DBE) reporting
to FTA by using the biannual FTA DBE Report in COTRAMS to report:
a. Contracts awarded, payments made, and contracts completed between Town of Estes
Park and prime contractors; and
b. Contracts awarded, payments made, and contracts completed between Town of Estes
Park’s prime contractors and their subcontractors.
7. DBE Program Measure Reports shall be submitted in COTRAMS by Town of Estes Park on or
before the following due dates:
a. Quarter 4 – Quarter 1 (for October 1 – March 31) due April 28th; and
b. Quarter 2 – Quarter 3 (for April 1 – September 30) due October 28th.
C. Project Budget
1. The Total Project Budget is $189,264.00. CDOT will pay no more than 80% of the eligible, actual
administrative costs, up to the maximum amount of $20,000.00, and no more than 50% of the
eligible, actual operating costs, up to the maximum amount of $82,132.00. CDOT will retain any
remaining balance of the federal share of FTA-5311 Funds. Town of Estes Park 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
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Federal Funds of $20,000.00 (80%) for administrative costs and $82,132.00 (50%) for operating
costs, and matching Local Funds of $5,000.00 (20%) for administrative costs and $82,132.00
(50%) for operating costs, will be encumbered for this Subaward Agreement.
2. No refund or reduction of the amount of Town of Estes Park’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 Estes Park 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 Estes
Park’s share, together with the Federal Funds share, shall be enough to ensure payment of Total
Project Budget.
4. Per the terms of this Subaward Agreement, CDOT will 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 Estes Park shall initiate and prosecute to
completion all actions necessary to enable Town of Estes Park to provide its share of the Total
Project Budget at or prior to the time that such funds are needed to meet the Total Project Budget.
D. Allowable Costs
1. Town of Estes Park shall agree to adhere to the provisions for allowable and unallowable costs
cited in the following regulations: 2 CFR 200.420 through 200.476; FTA C 5010.1 Chapter VI:
Financial Management; Master Agreement, Section 6 “Non-Federal Share;” and 2 CFR 200.102.
Other applicable requirements for cost allowability not cited previously shall also be considered.
2. Town of Estes Park’s operating expenses are those costs directly related to system operations.
Town of Estes Park at a minimum, should consider the following items as operating expenses:
fuel, oil, drivers and dispatcher salaries and fringe benefits, and licenses.
3. If Town of Estes Park elects to take administrative assistance, eligible costs may include but are
not limited to: general administrative expenses (e.g., salaries of the project director, secretary, and
bookkeeper); marketing expenses; insurance premiums or payments to a self -insurance reserve;
office supplies; facilities and equipment rental; standard overhead rates; and the costs of
administering drug and alcohol testing. Additionally, administrative costs for promoting and
coordinating ridesharing are eligible as project administration if the activity is part of a
coordinated public transportation program.
E. Reimbursement Eligibility
1. Town of Estes Park must submit invoice(s) monthly via COTRAMS. Reimbursement will apply
only to eligible expenses that are incurred within the period of performance of this Subaward
Agreement.
2. Reimbursement requests must be within the limits of Section D., Allowable Costs, of this
Subaward Agreement. Town of Estes Park will be reimbursed based on the ratio of Federal Funds
share and Local Funds share set forth in the Project Budget above.
3. Town of Estes Park shall submit the final request for reimbursement within sixty (60) calendar
days of December 31, 2025, and submit a Grant Closeout and Liquidation (GCL) Form in
COTRAMS within fifteen (15) days of issuance of the final reimbursement payment.
F. Training
In an effort to enhance transit safety, Town of Estes Park and any subrecipients and subcontractors shall make a
good faith effort to ensure that appropriate training of agency and contracted personnel is occurring and that
personnel are up to date in appropriate certifications. In particular, Town of Estes Park shall ensure that driving
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personnel are provided professional training in defensive driving and training on the handling of mobility devices
and transporting older adults and individuals with disabilities.
G. Restrictions on Lobbying
Town of Estes Park is certifying that it complies with 2 CFR 200.450 by entering into this Subaward Agreement.
H. Special Conditions
1. Town of Estes Park shall comply with all requirements imposed by CDOT on Town of Estes Park
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 Estes Park shall permit CDOT and their auditors to have access to Town of Estes Park’s
records and financial statements as necessary, with reasonable advance notice.
3. Town of Estes Park shall comply with the record retention requirements outlined in 2 CFR
200.334 and FTA C 5010.1.
4. Town of Estes Park shall not request reimbursement for costs on this project from more than one
Federal Awarding Agency or other federal awards (i.e., no duplicate billing).
5. Town of Estes Park shall obtain prior CDOT approval, in writing, if FTA funds are intended to be
used for payment of a lease or for third -party contracts.
6. Town of Estes Park shall advertise its service as available to the general public and shall not
explicitly limit service by trip purpose or client type.
7. Town of Estes Park shall comply with FTA Drug and Alcohol Regulations, to include on time
submission to FTA’s Drug and Alcohol Management Information System (DAMIS).
8. Town of Estes Park shall ensure subcontractors and subrecipients (if any) comply with FTA Drug
and Alcohol Regulations.
9. Town of Estes Park 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.
10. Town of Estes Park 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 FTA Circular 4702.1, “Title VI
Requirements and Guidelines for FTA Recipients.” Town of Estes Park shall also facilitate FTA’s
compliance with Executive Order 12898 and DOT Order 5610.2(a) by incorporating the principles
of environmental justice in planning, project development and public outreach in accordance with
FTA Circular 4703.1 “Environmental Justice Policy Guidance for Federal Transit Administration
Recipients.”
11. Town of Estes Park shall provide transportation services to persons with disabilities in accordance
with the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq.
12. Town of Estes Park shall ensure that it does or 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 Estes Park 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.
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13. Town of Estes Park shall develop and maintain an Americans with Disabilities Act (ADA)
Program in accordance with 28 CFR Part 35, Nondiscrimina tion on the Basis of Disability in State
and Local Government Services, FTA Circular 4710.1, and any additional requirements
established by CDOT for FTA subrecipients.
14. Town of Estes Park shall agree to maintain documentation that supports compliance with t he ADA
and produce said documentation to CDOT upon request.
15. Town of Estes Park will adopt a Transit Asset Management Plan that complies with regulations
implementing 49 U.S.C. § 5326(d). Town of Estes Park shall maintain and report annually all
information required by NTD and any other financial, fleet, or service data.
16. Town of Estes Park 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.
17. Town of Estes Park agrees that any incidental use (e.g. meal or package delivery) shall not reduce
the quality or availability of its regular public transportation service.
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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: __________________
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EXHIBIT C, FEDERAL PROVISIONS
1. APPLICABILITY OF PRO VISIONS
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 t erms 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
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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
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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.
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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]
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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.
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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.
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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.
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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;
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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.
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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 o f this section of the
Master Agreement.
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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:
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(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.
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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;
(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 wo uld 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 cannot be canceled. The Federal
Government may recover the federal assistance it has provided for the Award, including the federal assistance for
obligations properly incurred before the termination date, if it determines that the Subrecipient has misused its
federal assistance by failing to make adequate progress, failing to make appr opriate 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 terminatio n
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 the extent FTA deems
appropriate.
Applicable to Awards exceeding $25,000
From Section 4. Ethics.
(a) Debarment and Suspension. The Subrecipient agrees to the following:
(1) It will comply with the following requirements of 2 CFR part 180, subpart C, as adopted and
supplemented by U.S. DOT regulations at 2 CFR part 1200.
(2) It will not enter into any “covered transaction” (as that phrase is defined at 2 CFR §§ 180.220 and
1200.220) with any Third Party Participant that is, or whose principal is, suspended, debarred, or
otherwise excluded from participating in covered transactions, except as authorized by-
(i) U.S. DOT regulations, “Nonprocurement Suspension and Debarment,” 2 CFR part 1200;
(ii) U.S. OMB regulatory guidance, “Guidelines to Agencies on Government-wide Debarment and
Suspension (Nonprocurement),” 2 CFR part 180; and
(iii) Other applicable federal laws, regulations, or requirements regarding participation with debarred or
suspended Subrecipients or Third Party Participants.
(3) It will review the U.S. GSA “System for Award Management – Lists of Parties Excluded from Federal
Procurement and Nonprocurement Programs,” if required by U.S. DOT regulations, 2 CFR part 1200.
(4) It will that its Third Party Agreements contain provisions necessary to flow down these suspension and
debarment provisions to all lower tier covered transactions.
(5) If the Subrecipient suspends, debars, or takes any similar action against a Third Party Participant or
individual, the Subrecipient will provide immediate written notice to the:
(i) FTA Regional Counsel for the Region in which the Subrecipient is located or implements the
underlying Agreement,
(ii) FTA Headquarters Manager that administers the Grant or Cooperative Agreement, or
(iii) FTA Chief Counsel.
Applicable to Awards exceeding the simplified acquisition threshold ($100,000-see Note)
Note: Applicable when tangible property or construction will be acquired
Section 15. Preference for United States Products and Services.
Except as the Federal Government determines otherwise in writing, the Subrecipient agrees to comply with FTA’s
U.S. domestic preference requirements and follow federal guidance, including:
Buy America. The domestic preference procurement requirements of 49 U.S.C. § 5323(j), and FTA regulations,
“Buy America Requirements,” 49 CFR part 661, to the extent consistent with 49 U.S.C. § 5323(j).
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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
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 disa greement 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 rec eives to its
Award Budget for its Agreement rather than return the federal share of those liquidated damages to the
Federal Government, provided that the Subrecipient receives FTA’s prior written concurrence.
(d) Enforcement. The Subrecipient must pursue its legal rights and remedies available under any third party
agreement, or any federal, state, or local law or regulation.
Applicable to Awards exceeding $100,000 by Statute
From Section 4. Ethics.
a. Lobbying Restrictions. The Subrecipient agrees that neither it nor any Third Party Participant will use federal
assistance to influence any officer or employee of a federal agency, member of Congress or an employee of a
member of Congress, or officer or employee of Congress on matters that involve the underlying Agreement,
including any extension or modification, according to the following:
(1) Laws, Regulations, Requirements, and Guidance. This includes:
(i) The Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352, as amended;
(ii) U.S. DOT regulations, “New Restrictions on Lobbying,” 49 CFR part 20, to the extent consistent with
31 U.S.C. § 1352, as amended; and
(iii) Other applicable federal laws, regulations, requirements, and guidance prohibiting the use of federal
assistance for any activity concerning legislation or appropriations designed to influence the U.S.
Congress or a state legislature; and
(2) Exception. If permitted by applicable federal law, regulations, requirements, or guidance, such lobbying
activities described above may be undertaken through the Subrecipient’s or Subrecipient’s proper official
channels.
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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,
Executive Order No. 11990 relating to “Protection of Wetlands,” and Executive Order No. 11988, as
amended, “Floodplain Management.”
Applicable with the Transfer of Property or Persons
Section 15. Preference for United States Products and Services.
Except as the Federal Government determines otherwise in writing, the Subrecipient agrees to comply with FTA’s
U.S. domestic preference requirements and follow federal guidance, including:
(a) Buy America. The domestic preference procurement requirements of 49 U.S.C. § 5323(j), and FTA
regulations, “Buy America Requirements,” 49 CFR part 661, to the extent consistent with 49 U.S.C. §
5323(j);
(c) Cargo Preference. Preference – Use of United States-Flag Vessels. The shipping requirements of 46 U.S.C.
§ 55305, and U.S. Maritime Administration regulations, “Cargo Preference – U.S.-Flag Vessels,” 46 CFR
part 381; and
(d) Fly America. The air transportation requirements of Section 5 of the 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.
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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.
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 S tandards 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 Tribal 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 Authorized 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 .
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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 r egulations, FTA
has established the following additional exceptions to those restrictions:
(1) FTA’s Charter Service restrictions do not apply to equipment or facilities supported with federal assistance
appropriated or made available for 49 U.S.C. § 5307 to support a Job Access and Reverse Commute (JARC)-
type Project or related activities that would have been eligible for assistance under repealed 49 U.S.C. § 5316
in effect in Fiscal Year 2012 or a previous fiscal year, provided that the Subrecipient uses that federal
assistance for FTA program purposes only, and
(2) FTA’s Charter Service restrictions do not apply to equipment or facilities supported with the federal
assistance appropriated or made available for 49 U.S.C. § 5310 to support a New Freedom -type Project or
related activities that would have been eligible for federal assistance under repealed 49 U.S.C. § 5317 in
effect in Fiscal Year 2012 or a previous fiscal year, provided the Subrecipient uses that federal assistance for
program purposes only.
(c) Violations. If it or any Third Party Participant engages in a pattern of violations of FTA’s Charter Service
regulations, FTA may require corrective measures and remedies, including withholding an amount of federal
assistance as provided in FTA’s Charter Service regulations, 49 CFR part 604, appendix D, or barring it or the
Third Party Participant from receiving federal assistance provided in 49 U.S.C. chapter 53, 23 U.S.C. § 133, or
23 U.S.C. § 142.
Section 29. School Bus Operations.
(a) Prohibitions. The Subrecipient agrees that neither it nor any Third Party Participant that is participating in its
Award will engage in school bus operations exclusively for the transportation of students or school personnel in
competition with private school bus operators, except as permitted by federal transit laws, 49 U.S.C. § 5323(f) or
(g), FTA regulations, “School Bus Operations,” 49 CFR part 605, and any other applicable federal “School Bus
Operations” laws, regulations, federal requirements, or applicable federal guidance.
(b) Violations. If a Subrecipient or any Third Party Participant has operated school bus service in violation of FTA’s
School Bus laws, regulations, or requirements, FTA may require the Subrecipient or Third Party Participant to
take such remedial measures as FTA considers appropriate, or bar the Subrecipient or Third Party Participant
from receiving federal transit assistance.
From Section 35 Substance Abuse
c. Alcohol Misuse and Prohibited Drug Use.
(1) Requirements. The Subrecipient agrees to comply and 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.
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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 higher education, or individual, the
Subrecipient will transmit the Federal Government’s patent rights to FTA, as specified in 35 U.S.C. § 200 et
seq., and U.S. Department of Commerce regulations, “Rights to Inventions Made by Nonprofit O rganizations
and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” 37 CFR part
401.
c. License Fees and Royalties. Consistent with the applicable U.S. DOT Common Rules, the Subrecipient agrees
that license fees and royalties for patents, patent applications, and inventions produced with federal assistance
provided through the Agreement are program income and must be used in compliance with applicable federal
requirements.
Section 18. Rights in Data and Copyrights.
(a) Definition of “Subject Data.” As used in this section, “subject data” means recorded information whether or not
copyrighted, and that is delivered or specified to be delivered as required by the Agreement. Examples of “subject
data” include, but are not limited to computer software, standards, specifications, engineering drawings and
associated lists, process sheets, manuals, technical reports, catalog item identifications, and related information,
but do not include financial reports, cost analyses, or other similar information used for performance or
administration of the underlying Agreement.
(b) General Federal Restrictions. The following restrictions apply to all subject data first produced in the
performance of the Agreement:
(1) Prohibitions. The Subrecipient may not publish or reproduce any subject data, in whole, in part, or in any
manner or form, or permit others to do so.
(2) Exceptions. The prohibitions do not apply to publications or reproductions for the Subrecipient’s own internal
use, an institution of higher learning, the portion of subject data that the Federal Government has previously
released or approved for release to the public, or the portion of data that has the Federal Government’s prior
written consent for release.
(c) Federal Rights in Data and Copyrights. The Subrecipient agrees that:
(1) General. It must provide a license to its “subject data” to the Federal Government that is royalty-free, non-
exclusive, and irrevocable. The Federal Government’s license must permit the Federal Government to
reproduce, publish, or otherwise use the subject data or permit other entities or individuals to use the subject
data provided those actions are taken for Federal Government purposes, and
(2) U.S. DOT Public Access Plan – Copyright License. The Subrecipient grants to U.S. DOT a worldwide, non-
exclusive, non-transferable, paid-up, royalty-free copyright license, including all rights under copyright, to
any and all Publications and Digital Data Sets as such terms are defined in the U.S. DOT Public Access plan,
resulting from scientific research funded either fully or partially by this funding agreement. The Subrecipient
herein acknowledges that the above copyright license grant is first in time to any and all other grants of a
copyright license to such Publications and/or Digital Data Sets, and that U.S. DOT shall have priority over
any other claim of exclusive copyright to the same.
(d) Special Federal Rights in Data for Research, Development, Demonstration, Deployment, Technical Assistance,
and Special Studies Programs. In general, FTA’s purpose in providing federal assistance for a research,
development, demonstration, deployment, technical assistance, or special studies program is to increase
transportation knowledge, rather than limit the benefits of the Award to the Subrecipient and its Third Party
Participants. Therefore, the Subrecipient agrees that:
(1) Publicly Available Report. When an Award providing federal assistance for any of the programs described
above is completed, it must provide a report of the Agreement that FTA may publish or make available for
publication on the Internet.
(2) Other Reports. It must provide other reports related to the Award that FTA may request.
(3) Availability of Subject Data. FTA may make available its copyright license to the subject data, and a copy of
the subject data to any FTA Recipient or any Third Party Participant at any tier, except as the Federal
Government determines otherwise in writing.
(4) Identification of Information. It must identify clearly any specific confidential, privileged, or proprietary
information submitted to FTA.
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(5) Incomplete. If the Award is not completed for any reason whatsoever, all data developed with federal
assistance for the Award becomes “subject data” and must be delivered as the Federal Government may
direct.
(6) Exception. This section does not apply to an adaptation of any automatic data processing equipment or
program that is both for the Subrecipient’s use and acquired with FTA capital program assistance.
(e) License Fees and Royalties. Consistent with the applicable U.S. DOT Common Rules, the Subrecipient agrees
that license fees and royalties for patents, patent applications, and inventions produced with federal assistance
provided through the Agreement are program income and must be used in compliance with federal applicable
requirements.
(f) Hold Harmless. Upon request by the Federal Government, the Subrecipient agrees that if it intentionally violates
any proprietary rights, copyrights, or right of privacy, and if its violation under the preceding section occurs from
any of the publication, translation, reproduction, delivery, use or disposition of subject data, then it will indemnify,
save, and hold harmless against any liability, including costs and expenses of the Federal Government’s officers,
employees, and agents acting within the scope of their official duties. The Subrecipient will not be required to
indemnify the Federal Government for any liability described in the preceding sentence, if the violation is caused
by the wrongful acts of federal officers, employees or agents, or if indemnification is prohibited or limited by
applicable state law.
(g) Restrictions on Access to Patent Rights. Nothing in this section of this Master Agreement (FTA MA(23))
pertaining to rights in data either implies a license to the Federal Government under any patent, or may be
construed to affect the scope of any license or other right otherwise granted to the Federal Government under any
patent.
(h) Data Developed Without Federal Assistance or Support. The Subrecipient agrees that in certain circumstances it
may need to provide to FTA data developed without any federal assistance or support. Nevertheless, this section
generally does not apply to data developed without federal assistance, even though that data may have been used
in connection with the Award. The Subrecipient agrees that the Federal Government will not be able to protect
data developed without federal assistance from unauthorized disclosure unless that data is clearly marked
“Proprietary,” or “Confidential.”
(i) Requirements to Release Data. The Subrecipient understands and agrees that the Federal Government may be
required to release data and information the Subrecipient submits to the Federal Government as required under:
(1). The Freedom of Information Act (FOIA), 5 U.S.C. § 552,
(2) The U.S. DOT Common Rules,
(3) U.S. DOT Public Access Plan, which provides that the Subrecipient agrees to satisfy the reporting and
compliance requirements as set forth in the U.S. DOT Public Access plan, including, but not limited to, the
submission and approval of a Data Management Plan, the use of Open Researcher and Contributor ID
(ORCID) numbers, the creation and maintenance of a Research Project record in the Transportation Research
Board’s (TRB) Research in Progress (RiP) database, and the timely and complete submission of all required
publications and associated digital data sets as such terms are defined in the DOT Public Access plan.
Additional information about how to comply with the requirements can be found at:
http://ntl.bts.gov/publicaccess/howtocomply.html, or
(4) Other federal laws, regulations, requirements, and guidance concerning access to records pertaining to the
Award, the accompanying Agreement, and any Amendments thereto.
Miscellaneous Special Requirements
From Section 12. Civil Rights.
(e) Disadvantaged Business Enterprise. To the extent authorized by applicable federal laws, regulations, or
requirements, the Subrecipient agrees to facilitate, and assures that eac h Third Party Participant will facilitate,
participation by small business concerns owned and controlled by socially and economically disadvantaged
individuals, also referred to as “Disadvantaged Business Enterprises” (DBEs), in the Agreement as follows:
(1) Statutory and Regulatory Requirements. The Subrecipient agrees to comply with:
(i) Section 11101(e) of IIJA;
(ii) U.S. DOT regulations, “Participation by Disadvantaged Business Enterprises in Department of
Transportation Financial Assistance Programs,” 49 CFR part 26; and
(iii) Federal transit law, specifically 49 U.S.C. § 5332, as provided in section 12 of this Master Agreement.
(2) DBE Program Requirements. A Subrecipient that receives planning, capital and/or operating assistance and
that will award prime third party contracts exceeding $250,000 the requirements of 49 CFR part 26.
(3) Special Requirements for a Transit Vehicle Manufacturer (TVM). The Subrecipient agrees that:
(i) TVM Certification. Each TVM, as a condition of being authorized to bid or propose on FTA-assisted
transit vehicle procurements, must certify that it has complied with the requirements of 49 CFR part 26;
and
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(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:
(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 appropr iate, 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 Pr ograms,
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.
Docusign Envelope ID: 301314BB-EA49-4273-9331-F4EC5CAC763A
Contract Number: 25-HTR-ZL-00162 / PO: 491003850
Page 46 of 47 Version 10/23/19
(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. ATBCB) and U.S.
DOT regulations, “Americans With Disabilities (ADA) Accessibility Specifications for
Transportation Vehicles,” 36 CFR part 1192 and 49 CFR part 38;
(iv) U.S. DOT regulations, “Transportation for Individuals with Disabilities: Passenger Vessels,” 49
CFR part 39;
(v) U.S. DOJ regulations, “Nondiscrimination on the Basis of Disability in State and Local Government
Services,” 28 CFR part 35;
(vi) U.S. DOJ regulations, “Nondiscrimination on the Basis of Disability by Public Accommodations
and in Commercial Facilities,” 28 CFR part 36;
(vii) U.S. EEOC, “Regulations to Implement the Equal Employment Provisions of the Americans with
Disabilities Act,” 29 CFR part 1630;
(viii) U.S. Federal Communications Commission regulations, “Telecommunications Relay
Services and Related Customer Premises Equipment for Persons with Disabilities,” 47 CFR part 64,
Subpart F;
(ix) U.S. ATBCB regulations, “Electronic and Information Technology Accessibility Standards,” 36
CFR part 1194;
(x) FTA regulations, “Transportation for Elderly and Handicapped Persons,” 49 CFR part 609,
(xi) FTA Circular 4710.1, “Americans with Disabilities Act: Guidance;” and
(xii) Other applicable federal civil rights and nondiscrimination regulations and guidance.
Section 16. Procurement.
(a) Federal Laws, Regulations, Requirements, and Guidance. The Subrecipient agrees:
(1) To comply with the requirements of 49 U.S.C. chapter 53 and other applicable federal laws, regulations, and
requirements in effect now or later that affect its third party procurements;
(2) To comply with the applicable U.S. DOT Common Rules; and
(3) To follow the most recent edition and any revisions of FTA Circular 4220.1, “Third Party Contrac ting
Guidance,” to the extent consistent with applicable federal laws, regulations, requirements, and guidance.
State Requirements
Section 37. Special Notification Requirements for States.
(a) Types of Information. To the extent required under federal law, the State, agrees to provide the following
information about federal assistance awarded for its State Program, Project, or related activities:
(1) The Identification of FTA as the federal agency providing the federal assistance for a State Program or
Project;
(2) The Catalog of Federal Domestic Assistance Number of the program from which the federal assistance for a
State Program or Project is authorized; and
(3) The amount of federal assistance FTA has provided for a State Program or Project.
(b) Documents. The State agrees to provide the information required under this provision in the
following documents: (1) applications for federal assistance, (2) requests for proposals, or
solicitations, (3) forms, (4) notifications, (5) press releases, and (6) other publications.
Docusign Envelope ID: 301314BB-EA49-4273-9331-F4EC5CAC763A
Contract Number: 25-HTR-ZL-00162 / PO: 491003850
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: 301314BB-EA49-4273-9331-F4EC5CAC763A
PUBLIC WORKS Memo
To: Honorable Mayor Hall
Board of Trustees
Through: Town Administrator Machalek
From: Trevor Wittwer, Civil Engineer
Jeff Bailey, PE, Town Engineer
Date: February 25, 2025
RE: Resolution 14-25 Contract with E&M Concrete, LLC. for 2025 Concrete
Repairs $107,961.00 – Budgeted.
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER______________
QUASI-JUDICIAL YES NO
Objective:
Public Works staff seek Town Board approval of Resolution 14-25 for the construction
contract with E&M Concrete, LLC. (E&M) for 2025 Concrete Repairs which involves
removing and replacing concrete sidewalk, brick pavers, planter boxes, curb and gutter,
and other miscellaneous concrete repairs in various locations in the Town of Estes
Park.
Present Situation:
On December 20, 2024, Public Works advertised an Invitation to Bid for the 2025
Concrete Repairs for the Town of Estes Park. This is a one-time maintenance contract.
After three weeks of advertising, four bids were received on January 9, 2025. The
following table contains the bids for each company, and the Engineer’s Estimate:
COMPANY CITY TOTAL FEE
Chato’s Juarez Company Englewood, CO $46,076.34
E&M Concrete Loveland, CO $107,961.00
Rock & Co. Loveland, CO $149,730.00
High Plains Excavation Estes Park, CO $163,250.00
Engineer’s Estimate $110,420.00
The apparent low bidder was Chato’s Juarez Company; however, due to multiple
mathematical errors in their bid submission, Chato’s Juarez Company elected to
withdraw their bid from consideration.
Proposal:
Public Works staff propose approving the construction contract with E&M Concrete,
LLC. for the 2025 Concrete Repairs.
Advantages:
•Rehabilitation of multiple pedestrian travel ways that provide a safe walkable
surface without trip hazards.
Disadvantages:
•Disruption of pedestrian traffic in the proposed work areas may occur; however,
holiday weekends and local events have been identified as non-working days.
Action Recommended:
Public Works staff recommend approving the construction contract with E&M in the
amount of $107,961.00 and authorizing staff to spend an additional $4,039.00 if needed
to address additional quantities or unanticipated conditions encountered during
construction. The maximum expenditure amount is $112,000.00.
Finance/Resource Impact:
Current Impact: 101-5200-452.25-52 Walkways/Bikeways $112,000.00 expenditure,
$130,000 available budget as of January 29, 2025.
Future Ongoing and/or One-Time Impacts: No anticipated future ongoing or one-time
impacts.
Level of Public Interest
Public interest on this project is expected to be low to moderate.
Sample Motion:
I move for approval/denial of Resolution 14-25.
Attachments:
1. Resolution 14-25
2.Construction Contract with E&M Concrete, LLC. for 2025 Concrete Repairs
RESOLUTION 14-25
APPROVING A CONSTRUCTION CONTRACT WITH E & M CONCRETE, LLC
FOR 2025 CONCRETE REPAIR
WHEREAS, the Town Board wishes to enter a construction contract referenced in
the title of this resolution for overlay and patching.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF
THE TOWN OF ESTES PARK, COLORADO:
The Board approves, and authorizes the Mayor to sign, the construction contract
referenced in the title of this resolution in substantially the form now before the Board. the
Board authorizes the Public Works Director or designee to spend up to a total of
$110,000.00 under this contract.
DATED this day of , 2025.
TOWN OF ESTES PARK
Mayor
ATTEST:
Town Clerk
APPROVED AS TO FORM:
Town Attorney
ATTACHMENT 1
CONSTRUCTION CONTRACT
2025 Concrete Repair
THIS CONTRACT is made atthe Town of Estes Park, Colorado, by and between the Town of
Estes Park, Colorado (Town), a municipal coqporation, andE & M Concrete ,LLC (Contractor),
a Colorado limited liability corporation, whose address is 615 E'77fi Avenue, Thornton, CO
80229.
In consideration of these mutual covenants and conditions, the Town and Contractor agree as
follows:
SCOPE OF WORK. The Contractor shall execute the entire Work described in the Contract
Documents.
CONTRACT IIOCIIMENTS. The Contract incoqporates the following Contract Documents.
In resolving inconsistencies among two or more of the Contract Documents, precedence will be
given in the same order as enumerated-
LIST OF CONTRACT DOCTIMENTS.
The Contract Documents, oxce,pt for Modifications and Change Orders issued after execution of
this Agreement, are:
l- Chauge Orders;
2. Construction Contract;
3. The following addenda, if any:
t Number
I
Date Page(s)
1/3/202s 4
Page(s)
Date
4. The following Special Conditions of the Contract:
i l)ocument Page(s)
Special Conditiow 3
5. General Conditions;
6. The following Technical Specifications:i. Document Title
7. The following Drawings:
i. Title
Public Works Department 12/19/2024
490 Marigold Ln 12/20/2025
&jI Big Horn Dr 12/2A/2025
Parking Garage Wayfnding Kiosk 12/20/2024
Agreementfor Construction Contract--Page I of 6
ATTACHMENT 2
8. Notice to Proceed;
9. Notice of Award;
10. Invitation to Bid
11. BidBond;
12.BidProposal;
13. Instructions to Bidders;
14. Performance Bond and Payment Bond;
1 5. Insurance Certificates;
16. Construction Progress Schedule; and
17. Any other documents listed as Contract Documents in the General Conditions.
CONTRACT PRICE. The Town shall pay the Contractor forperforming the Work and the
completion of the Project according to the Contract subject to change orders as approved in
writing by the Town, under the guidelines in the General Conditions. The Town will pay the base
sum of $107,961.00 DOLLARS (Contract Price), to the Conhactor, subjectto full and
satisfactory performance of the terms and conditions of the Contract. The Town has
appropriated sufficient monoy for this work.
COMPLETION OF WORK. The Contractor must begin work covered by the Contact within
10 days of the issuance of the Notice to Proceed and must complete work:
_ within calendar days from and including the date of Notice to Proceed,
according to the General Conditions.
X by May 23,2025.
X_ as described in the Special Conditions.
LIQUIDATED DAMAGES. If the Contractor fails to substantially complete the Work within
the time period described above, or within such other construction time if modified by a change
order, the Town may permit the Contractor to proceed, and in such case, may deduct the sum of
$500.00 for each calendar day that the Work sball remain uncompleted from monies due or that
may become due the Contractor. This sum is not a penalty but is the cost of field and office
engineering, inspecting, interest on financiag and liquidated darnages,
The parties agpe that under all of the circumstances, tle daily basis and the amount set for
liquidated damages is a reasonable and equitable estimate of all the Town's actual demages for
dslay. The Town expends additional personnel effort in administrating the Confiract or portions
of it that are not completed on time, and such efforts and the costs thereof are impossible to
accurately compute. In addition, some, if not all, citizens of Estes Park incur personal
inconvenience and lose confidence in their govemment as a result of public projec* or parts of
them not being completed on time, and the imFact and damages, certainly serious in monetary as
well as other terrrs are impossible to measure.
Agreementfor Construction Con*act-Page 2 of 6
SERVICE O['NOTICES. Notices to the Town are given if sent by registered or certified mail,
postage prepai{ to the following address:
TOWN OF ESTES PARK
Public Works Department
PO Box 1200
Estes Park, CO 80517
INSURANCE PROVISIONS. The Contractor must not begin any work until the Contractor
obtains, at the Contractols own expense, all required insurance as specified in the General
Conditions. Such insurance must have the approval of the Town of Estes Park as to limits, form
and amount.
RESPONSIBILITIY FOR DAMAGE CLAIMS. The Contractor shall indemniff, save
harmless, and defend the Town, its officers and employees, from and in all suits, actions or
claims of any character brought because of: any injuries or damage received or sustained by any
person, persofis or propefty because of operations for the Town under the Contract; the
Contractor's failure to comply with the provisions of the Contract; the Contractor's neglect of
materials while constructing the Work; because of any act or omission, neglect or misconduct of
the Contractor; because of any claims or amounts recovered from any infringements ofpatent,
tradernark, or copyright, unless the design, device, materials or process involved are specifically
required by Contract; from any claims or amount arising or recovered under the "Worters'
Compensation Act," by reason of the Contractor's failure to comply with the act; pollution or
environmental liability; or any failure of the Contractor to comply with any other law, ordinance,
order or decree. The Town may retain so much of the money due the Contractor under the
Contract, as the Town considers necessary for such purpose, for the Town's use. Ifno money is
due, the Contractor's Surety may be held until such suits, actions, claims for injuries or damages
have been settled. Money due the Contractor will not be withheld when the Contractor produces
satisfactory evidence that the Contractor and the Town are adequately protected by public
liabitity and properly damage insurance.
The Contractor also agrees to pay the Town all expenses incurred to enforce this "Responsibility
for Damage Claim" agreemetrt and if the Contractor's insurer fails to provide or pay for the
defense of the Town of Estes Park, its officers and employees, as additional insureds, the
Contractor agrees to pay for the cost ofthat defense.
Nothing in the INSURANCE PROVISIONS of the General Conditions shall limit the
Contractols responsibility forpaprent of claims, liabilities, damages, fines, peralties, and costs
resulting from its perfonnance ornonperformance under the Contract.
STATUS OF CONTRACTOR- The Contractor is performing all work under the Contract as
an independent contractor and not as an agent or employee of the Town. No employee or official
of the Town will supervise the Contractor nor will the Contractor exercise supervision over any
employee or official of the Town. The Contractor shall not represent that it is an employee or
agent of the Town in any capacity. The Contractor and its employees are not entitled to'Workers'Compensation henefits from the Town and are obligated to pay federal and state
income tax on money earned pursuant to the Contract. This is not an exclusive contract.
Agreementfor Constraction Contract--Page 3 of 6
THIRD-PARTY BENEFICIARIES. None of the terms or conditions in the Contract shall give
or allow any claim, benefit, or right of action by any third person not a party to the Contract.
Any petson except the Town or the Contractor receiving services or benefits under the Contact
shall be only an incidental beneficiary.
INTEGRATION. The Contract is an integration of the entire understauding of the parties with
respect to the matters set forth in it, and supersedes prior negotiations, written or oral
representations and agreements
DEFINfTIONS. The Definitions in the General Conditions apply to the entire Contract unless
modi{ied within a Contract Document.
EXECUTED this _ day of
(Signature pages to follow.)
202s.
Agreement for Consttaction Contract*Page 4 of 6
TOWN OF ESTES PARK
By:
Title:
State of )
)ss
County of )
The foregoing instrument was acknowledged before me by
of the colporation, this -.-.-- day of
Witness my hand and official Seal.
My Commission expires
NotaryPublic
APPROVED AS TO FORM:tu
Town Attorney
Date
of the Town of Estes Park, a Colorado municipal corporation, on behalf
2025.
Agreementfor Construction Contract--Page 5 of 6
CONTRACTOR
Title: President
state of Co bv"d<' ,
county of
^olow
)\ssl
The foregoing instrument was acknowledged before me by
My Commission expires
1- zz - zozf
Date
e ri iL F>p,'n'-tr /'lorcus
(Name ofparty signing)
a member/partnerlmanager/limited partner/agent (select one) on behalf of E&M Concrete,
a Colorado limited liability company, thi" Z'^d day of Arnuo'?
Witness my hand and ofFrcial Seal.
o5- I i4 f zoz {-
LLC,
2025.
Notary Public
Agreementfor Construction Contract--Page 6 of 6
TOWN CLERK’S OFFICE Memo
To: Honorable Mayor Hall
Board of Trustees
Through: Town Administrator Machalek
From: Jackie Williamson, Town Clerk
Date: February 25, 2025
RE: Appointment – Town Treasurer/Town Clerk Pro Tem
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER – Appointment
QUASI-JUDICIAL YES NO
Objective:
To appoint the Town Treasurer/Town Clerk Pro Tem per the Municipal Code 2.24
Present Situation:
The Town hired Tammy Zimmerman as the new Finance Director/Town Treasurer to
replace the current Director, Duane Hudson, who has taken on a limited-term position
with the Town to complete the ERP process. Mrs. Zimmerman began her new position
with the Town on February 17, 2025.
Proposal:
In keeping with the requirements of the Municipal Code and Colorado Revised Statutes,
staff is requesting the Board consider the appointment of Tammy Zimmerman as the
Town Treasurer/Town Clerk Pro-Tem through April 2026. At that time, all required staff
appointments will be considered by the newly seated Board at the second meeting in
April 2026. Per the Municipal Code Section 2.24.010, at the first regular meeting
following certification of the results of each biennial election, the Board of Trustees shall
appoint a qualified person as Town Treasurer.
Advantages:
To comply with the Municipal Code and State Statute requirements.
Disadvantages:
The Town would operate without an appointed Treasurer/Town Clerk Pro Tem.
Action Recommended:
Approve the appointment outlined above through a motion.
Budget:
None.
Level of Public Interest:
Low
Sample Motion:
I move to approve/deny the appointment of Tammy Zimmerman as Town
Treasurer/Town Clerk Pro Tem.
Attachments:
None.
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TOWN ADMINISTRATOR’S
OFFICE
Memo
To: Honorable Mayor Hall
Board of Trustees
From: Town Administrator Machalek
Date: February 25, 2025
RE: Resolution 15-25 Reaffirming Support for Immigration Reform
(Mark all that apply)
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER: _____________
QUASI-JUDICIAL YES NO
Objective:
Town Board consideration of Resolution 15-25, reaffirming the Town’s support for
immigration reform.
Present Situation:
On January 14, a group of public commenters presented a proposed resolution
supporting immigrants in Estes Park to the Town Board. The group also presented
copies of Resolution 10-18 (a Board Resolution supporting immigration reform) for
context. The Board requested a Study Session on January 28 to further discuss this
matter.
At the January 28 Study Session, the Board discussed both the public-proposed
resolution and Resolution 10-18. Staff is bringing forward the proposed resolution based
on that conversation.
Proposal:
Proposed Resolution 15-25 reaffirms the Town’ support for immigration reform.
Advantages:
•Provides clarity on the Town’s position regarding national immigration reform.
Disadvantages:
•Members of the Town Board have voiced concerns about the partisanship or
perception of partisanship surrounding this issue.
Action Recommended:
N/A. This is a Town Board policy decision.
Finance/Resource Impact:
N/A.
Level of Public Interest
High
Sample Motion:
I move for the approval/denial of the Resolution 15-25.
Attachments:
1. Resolution 15-25
RESOLUTION 15-25
REAFFIRMING SUPPORT FOR IMMIGRATION REFORM
WHEREAS, Estes Park is a multicultural community built on the aspirations and
hard work of people who have come together to live here and recognizes and wishes to
maintain the benefits of enhanced cultural diversity provided by our immigrant community;
and
WHEREAS, the community of Estes Park would be greatly diminished should the
immigrants who have lived here for many years, attended our churches, resided in our
neighborhoods, broadened our vision, and enriched our friendships have to leave; and
WHEREAS, Estes Park is a mountain town whose economy is dependent on the
tourism visitation to the area and especially the Rocky Mountain National Park with
current visitation of approximately 4.2 million visitors per year; and
WHEREAS, a forced reduction of the immigrant and foreign work force as a result
of changes in immigration policies would have negative impacts on the economy of Estes
Park; and
WHEREAS, a forced reduction of the immigrant workforce would negatively impact
an integral part of the Estes Park community by possibly separating families whose
children may be United States citizens; and
WHEREAS, a forced reduction of the Estes Park immigrant work force would likely
result in a parallel reduction in the Estes Park school student population resulting in
reductions in overall school income and the reduced ability for our now excellent Estes
Park school system to provide the breadth of educational opportunity that it does now;
and
WHEREAS, the Town Board previously expressed support for immigration reform
through Resolution 10-18, and desires to reaffirm that support.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF
THE TOWN OF ESTES PARK, COLORADO:
The Board reaffirms its commitment to supporting immigration reform in order to
protect the economy and stability of the Estes Park community, and urges the elected
Colorado Congressional Delegation in Washington D.C. to use their powers to achieve
passage of comprehensive U.S. immigration reform that results in resolution of the
immigration-related problems now facing our community and country.
DATED this day of , 2025.
TOWN OF ESTES PARK
Mayor
ATTEST:
Town Clerk
APPROVED AS TO FORM:
Town Attorney
ATTACHMENT 1
RESOLUTION 15-25
REAFFIRMING SUPPORT FOR IMMIGRATION REFORM
WHEREAS, Estes Park is a multicultural community built on the aspirations and
hard work of people who have come together to live here and recognizes and wishes to
maintain the benefits of enhanced cultural diversity provided by our immigrant community;
and
WHEREAS, the community of Estes Park would be greatly diminished should the
immigrants who have lived here for many years, attended our churches, resided in our
neighborhoods, broadened our vision, and enriched our friendships have to leave; and
WHEREAS, Estes Park is a mountain town whose economy is dependent on the
tourism visitation to the area and especially the Rocky Mountain National Park with
current visitation of approximately 4.2 million visitors per year; and
WHEREAS, a reduction of the immigrant and foreign work force would have
negative impacts on the economy of Estes Park; and
WHEREAS, a reduction of the immigrant workforce would negatively impact an
integral part of the Estes Park community by possibly separating families whose children
may be United States citizens; and
WHEREAS, a reduction of the Estes Park immigrant work force would likely result
in a parallel reduction in the Estes Park school student population resulting in reductions
in overall school income and the reduced ability for our now excellent Estes Park school
system to provide the breadth of educational opportunity that it does now; and
WHEREAS, the Town Board previously expressed support for immigration reform
through Resolution 10-18, and desires to reaffirm that support.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF
THE TOWN OF ESTES PARK, COLORADO:
The Board reaffirms its commitment to supporting immigration reform in order to
protect the economy and stability of the Estes Park community, and urges the elected
Colorado Congressional Delegation in Washington D.C. to use their powers to achieve
passage of comprehensive U.S. immigration reform that results in resolution of the
immigration-related problems now facing our community and country.
DATED this day of , 2025.
TOWN OF ESTES PARK
Mayor
ATTEST:
Town Clerk
APPROVED AS TO FORM:
Town Attorney
Modified and passed by the Town Board on 2025-02-25
PUBLIC COMMENT RECEIVED ON 2/20/2025
Board of Trustees Public Comment
Name: Melissa Wood
Stance on Item: For
Agenda Item Title: RESOLUTION 15-25.
Public Comment:
I am in support of this resolution.
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PUBLIC COMMENT RECEIVED ON 2/24/2025
Board of Trustees Public Comment
Name: Robert Johnson
Stance on Item: For
Agenda Item Title: RESOLUTION 15-25.
Public Comment:
I appreciate the principled reasoning of thinking that our resolution is partisan in origin, but our impetus
came from People, not Parties,: from Neighbors, not Networks. This is a true grassroots request.
Respectfully, Robert Johnson ;
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February 24, 2025
From: Louise Olson, 450 Pioneer Lane, Estes Park, Colorado
To: The Town Board of Trustees
Dear Members of the Town Board of Trustees,
I trust that you have studied, spent time weighing arguments for and against within your own souls, as
well as discussed among yourselves regarding the Resolution Supporting Immigrants in our Town. Thank
you. I appreciate the fact that you are taking this seriously.
As a resident in Estes Park for the last forty-one years, I have seen gradual growth in the number of
immigrants in our community. I love the diversity and am blessed with being an adopted member of a
Mexican family, their American grandma. We share meals in each others’ homes, spend holidays
together, love each other very much. Of course, knowing “my family” has opened doors among other
immigrants, all of whom I cherish as friends.
So it should not surprise you that I am in favor of supporting our immigrant population, whether
documented or not, in every way possible and, of course, within the law. The vicious way in which
deportation is being conducted is, in my opinion, a violation of human dignity which causes untold fear
and suffering.
I have tried to understand your concerns about neutrality. You do not want to add to the divisive climate
in which we find ourselves. But remaining neutral, while being well-intentioned, may be misguided. Here
is what Bishop Desmond Tutu has said concerning such issues: “If you are neutral in situations of
injustice, you have chosen the side of the oppressor.” Neutrality sends a message: we do not care about
people who live among us. Neutrality makes them “nobodies”. (Please see attached poem.)
You may have decided on your position already. If you’ve chosen neutrality, would you please
reconsider. I do not want to live in a town that does not support any of its residents, citizens or not.
There is really very little that we can do should ICE darken our doors, but we can let the people who are
family, neighbors, church members, and essential workers in our economy, know that we care about
them.
I strongly urge you to adopt the Resolution submitted to you and also pursue all possible avenues to
immigration reform. In addition, I suggest that, when adopted, the Resolution be made known as widely
as possible so that our immigrant friends know they have our support.
Thank you so much.
Sincerely,
Louise Olson
Louise Olson
The Nobodies
A word applauding nobodies:
who live in shadow’s
rented rooms
or crowded streets,
who empty waste-baskets
owned by the Somebodies
who wash the dishes
filled for those well fed
who don’t write books
but carry stories hid in lowered eyes
who dig the ditches, plant the trees
who turn the wheels of our economy
yet remain nameless at essential work.
Who are the nobodies,
the vast majority
on this world’s unmarked paths.
Who bear the pain
that flares in parched and hungry souls.
Who wash the feet
as once HE did
who live in HIM
but may not know
HE lives in them.
O! to be nobody
at one with that vast multitude
tight gathered anonymity
and beg to be a Somebody. A Somebody!
PUBLIC COMMENT RECEIVED ON 2/23/2025
Board of Trustees Public Comment
Name: Melissa Wood
Stance on Item: For
Agenda Item Title: RESOLUTION 15-25.
Public Comment:
please see my pdf
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In the Town Hall Trustee Study session on January 28 th, three statements were made regarding the
resolution: it was untimely, it was too political, it was too partisan.
I’d like to address these three statements.
This issue is untimely: My question would be, is there a better time to discuss this (admittedly
difficult) issue?
This issue is too partisan : The definition of partisan is “prejudiced in favor of a political cause”,
indicating more than one viewpoint. I would ask:
1. Do you believe in and uphold the Constitution of the United States?
2. Do you believe in the rule of law?
3. Do you believe in the Golden Rule, to treat others as you would wish to be treated?
Assuming the answer is yes, then a careful reading of the updated Resolution reveals that what we
were asking for is directly related to the three questions above. Framing the updated Resolution as
a “partisan” issue is a non -starter. The Resolution we put forth last month calls for immigration
reform that is lawful and consistent with our U.S. and Colorado Constitutions, awareness of the law
to help preserve and protect the rights of all our residents, and lastly, calls for humanitarian
treatment for all our residents. Do we really disagree?
The issue is too political : The definition of a politician is “a person who is professionally involved
in politics, especially as a holder of or a candidate for elected office”. You have been elected as
trustees of Estes Park. There is no such thing as “too political”. It’s you r JOB.
What we are asking for in our Resolution is a public affirmation from the Town that all residents of
our community enjoy equal protection under the law and that community resources will be
available to all according to need. It’s not too much to ask. It’s just the right thing to do.
PUBLIC COMMENT RECEIVED ON 2/23/2025
Board of Trustees Public Comment
Name: Autumn Nelson
Stance on Item: For
Agenda Item Title: RESOLUTION 15-25.
Public Comment:
The Town needs to convey that our current immigration policies and laws are inhumane and causing more
damage than good. Immigration enforcement quotas and raids, which are now in effect, create a ripe
environment for violations of constitutional rights in our community and nationwide. Federal agents are
acting, without search warrants, to enter residences and businesses to search for people who look and
sound like they don't belong in this country. This is racial profiling, and it violates equal protection. US
citizens and Indigenous people have already been questioned and detained in the fray of immigration
enforcement. If this can happen to them, it can happen to any person perceived as unlawfully present,
even if they have lawful status, in this country. No matter who is President or what political views you have,
constitutional rights violations are unacceptable and people should feel safe regardless of their skin color
and/or language they speak.
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UTILITIES Memo
To: Honorable Mayor Hall
Board of Trustees
Through: Town Administrator Machalek
From:
Date:
RE:
Jacqueline Wesley, P.E., Project Manager
Duane Hudson, Interim Finance Director
Reuben Bergsten, Utilities Director
February 25, 2025
Spruce Knob and Carriage Hills Water Systems Improvements & Loan
Agreement
(Mark all that apply)
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER______________
QUASI-JUDICIAL YES NO
Objective:
The Utilities Division aims to make improvements to the Town’s water system and
accept the ownership responsibilities of the private Spruce Knob Water Company after
their system is rebuilt to Town standards. These improvements will provide high-quality,
reliable water service to our community, and will also help us to be good stewards of our
raw water resources.
Present Situation:
The term of our Spruce Knob Bulk Water Supply Agreement needs to be extended.
The Spruce Knob Water Company provides potable water to properties along
Joel Estes Drive. In 2021, the State Division of Water Resources issued a
cease-and-desist order for the water well used by Spruce Knob because
replacement water was not delivered for their consumptive use. The Town’s
Windy Gap water right is the only source of replacement water; however, the
Town’s municipal code 13.24.130 – “Agreements to provide raw water” protects
our raw water rights by requiring properties near our water mains, like the
Spruce Knob properties, to become Town water customers instead of providing
them with our raw water rights. Today, the Town supplies Spruce Knob with
bulk potable, see Resolution 102-22 approving the original Bulk Water Service
Agreement, attached. As a condition of this agreement Spruce Knob Water
Company is required to rebuild their water system to meet Town standards and
subsequently their customer must become individual Town water customers.
A Voluntary Water Service Agreement is required.
“Whiskey’s for drinking, water’s for fighting,” is sometimes attributed to Mark
Twain (1835–1910). Water in the West is political and legal. Memorializing
water service and water rights is critical. As such, the Town requires the
execution of a Voluntary Water Service Agreement with the property owners of
the Spruce Knob Water Company. This agreement details the requirements
and obligations to connect to the Town of Estes Park Water System, including:
becoming individual rural water customers of the Town, paying the Town’s
Water System Development Fees, aka, Fee tap, and paying the financed cost
to reconstruct their aged water system 1.
A loan ordinance approving a loan agreement for Board consideration.
The proposed project funding includes the following:
• For Board consideration tonight, a $5M, 20-year, 3.25% interest, SRF (State
Revolving Fund) loan agreement containing $1,500,000 in Bipartisan
Infrastructure Law principal forgiveness. If the Board passes the ordinance,
the $5M loan principal will be reduced $3.5M.
• A $1.0M Bipartisan Infrastructure Law grant through DOLA, see Board
Resolution 25-24.
• The balance of the project is funded through the Water Division’s
unrestricted fund, approved through Town Board appropriations.
We will ensure existing Town customers do not subsidize the reconstruction of the private
Spruce Knob water system by bidding the Carriage Hills and Spruce Knob construction
scopes as separate line items.
We will equitably allocate the $2.5 M grant and principal forgiveness based on the ratio
of existing Town water to Spruce Knob water properties connected to the project.
Proposal:
Staff proposes:
The first resolution to extend the term of the Spruce Knob Bulk Water Supply
Agreement.
The second resolution to approve the Town/Spruce Knob Voluntary Water Service
Agreement which embodies the Town’s $1M DOLA grant and the $1.5M principal
forgiveness.
The ordinance to approve the SRF loan agreement which includes the $1.5M principal
forgiveness.
Advantages:
The proposed water system improvements will:
• provide high-quality, reliable water service to our community.
• help us to be good stewards of our raw water resources.
1 The agreement is similar to the 2018 Park Entrance and 2019 Prospect Mountain voluntary transfer agreements.
• support the State’s enforcement of the out-of-compliance Spruce Knob well
permit.
• reduce future O&M costs associated with emergency leak repairs in the Carriage
Hills area.
• support our neighbors in need of high-quality, reliable water service along Joel
Estes Drive while improving the economy of scale of our Water Division.
Disadvantages:
The proposed water system improvements have the following disadvantages:
• They will increase our workload.
• They will require additional paperwork and managerial responsibility for Town
staff.
Action Recommended:
Staff recommends approval of the:
• The resolution approving the First Amendment to the Spruce Knob Bulk Water
Service Agreement to extend its term.
• The resolution approving the Voluntary Water Service Agreement with Spruce
Knob Property Owners.
• The ordinance authorizing the execution and delivery of the SRF loan agreement
between the Colorado Water Resources and Power Development Authority and
the Town of Estes Park, Colorado, acting by and through its Water Activity
Enterprise.
Finance/Resource Impact:
1st Resolution: 503-0000-345.30-00 operating revenue into the Water Fund,
$4,600 estimated annual revenue
2st Resolution: 503-7000- 580.35-54, CAHILL, $8,266,597, Budgeted
3rd Ordinance: 503-0000-333.00-00, Federal Grant $1.5M
503-0000-231. , $3.5M, Loan, 3.5% interest, 20 years ;
annual payments ~ $ 242,620
Level of Public Interest
Low.
Sample Motion:
I move for the approval/denial of Resolution 16-25, extending the term of the bulk
water service agreement.
I move for the approval/denial of Resolution 17-25, approving the Voluntary Water
Service Agreement.
I move for the approval/denial of Ordinance 02-25,
Of The Town Of Estes Park, Colorado, Acting By And Through Its Water Activity
Enterprise, Authorizing The Execution And Delivery Of A Loan Agreement Between The
Colorado Water Resources And Power Development Authority And The Town Of Estes
Park, Colorado, Acting By And Through Its Water Activity Enterprise; Authorizing The
Issuance Of A Governmental Agency Bond To The Authority By The Town Of Estes
Park, Colorado, Acting By And Through Its Water Activity Enterprise, In The Aggregate
Principal Amount Not To Exceed $5,000,000 And With The Principal Amount Of Up To
$1,500,000 To Be Forgiven By The Authority, Evidencing The Special And Limited
Obligation Of The Town Of Estes Park, Colorado, Acting By And Through Its Water
Activity Enterprise, Under The Loan Agreement And Said Bond; Specifying The
Maximum Net Effective Interest Rate Of Said Bond And Prescribing Other Details In
Connection Therewith; And Providing Other Matters Properly Relating Thereto
Attachments:
1. Resolution 16-25
2. First Amendment to the Bulk Water Service Agreement
3. Bulk Water Service Agreement dated December 13, 2022
4. Resolution 17-25
5. Voluntary Water Service Agreement
6. Ordinance 02-25
7. LINK - Loan Agreement
8. LINK - Presentation
RESOLUTION 16-25
Approving the First Amendment to the Spruce Knob Bulk Water Service Agreement
WHEREAS, the Town Board wishes to amend the agreement referenced in the
title of this resolution.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF
THE TOWN OF ESTES PARK, COLORADO:
The Board approves, and authorizes the Mayor to sign, the First Amendment to
the Spruce Knob Bulk Water Service Agreement reference in the title of this resolution in
substantially the form now before the Board.
DATED this ___ day of ______ _, 2025.
TOWN OF ESTES PARK
Mayor
ATTEST:
Town Clerk
APPROVED AS TO FORM:
/ G ·:7L,_
/
pee· I Counsel
ATTACHMENT 1
ATTACHMENT 2
ATTACHMENT 3
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ATTACHMENT 4
VOLUNTARY WATER SERVICE AGREEMENT
This Voluntary Water Service Agreement (“Agreement”) is effective as provided in section 1.1 of
this Agreement and is among the Town of Estes Park, a Colorado statutory town, acting by and through its
Water Activity Enterprise (the “Town”), and the owners of real property (“Owners”) located in Larimer
County Colorado known as Spruce Knob: Jeremy & Nancy Collinet, John H. O’Connor Revocable Trust,
The Bucher Family Trust, Matthew A. H. & Cathy B. Schupanitz, Kevin J. & Kim Lee Sheumaker, William
H. & Teri L. Beaver, Christina Family Trust, Harvey Family Trust, Richard K. & Joyce A. Harvey, Patricia
J. Green, Donna J. Shay, and Darlene G. Drane.
RECITALS
WHEREAS, the Town owns and operates a municipal water system and supplies treated water to
customers in the Town and the unincorporated portion of Larimer County commonly known as the Estes
Valley; and
WHEREAS, the Town is in the process of the design, construction, and eventual operation of the
Carriage Hills and Spruce Knob Water Systems Improvement Project (“Project”). The Project consists of
replacing existing water mains with 8-inch and 12-inch water mains and installing valves, fire hydrants,
individual service line connections, and related facilities; and
WHEREAS, the Owners have executed the Agreement for the purpose of obtaining domestic water
service from the Town for their properties and becoming rural residential water customers of the Town; and
WHEREAS, currently the Owners are receiving Town bulk water pursuant to an agreement dated
December 15, 2022 between the Town and the Spruce Knob Water Company.
AGREEMENT
Accordingly, in consideration of the above recitals and the mutual covenants, agreements and
promises set forth herein, the Town and the Owners agree as follows:
1.Definitions. In addition to the defined terms set forth in the above recitals, which are
incorporated herein, the following definitions shall apply to this Agreement.
1.1 “Effective date” shall mean the date in which the Agreement is executed by the
last required signatory.
1.2 “Owners” are the owners of the individual real properties set forth on Exhibit A,
attached hereto by reference, which agree to be served by the Town following completion of the Project as
more fully set forth herein.
1.3 “Allocation” means the determination by the Town of the total cost of the Project
including but not limited to design, bidding, construction, administration, and ancillary support of the
Project attributed to the number of properties owned by the Owners in relation to the total number of
properties served by the Project.
1.4 “Spruce Knob” shall refer to the real property set forth on Exhibit B attached hereto
by reference.
ATTACHMENT 5
2. Town Responsibilities.
2.1 The Town shall be responsible for the design, bidding, contractor selection,
construction and installation of the Project.
2.2 The Town has received and approved a Colorado Water Re sources and Power
Development Authority (CWRPDA) loan in the approximate sum of $2,660,000, a separate CWRPDA loan
of $838,000, a EIAF grant of $1,000,000 for the partial financing of the Project. Also, the Town has an
agreement with CWRPDA for principal loan forgiveness in the amount of $1,500,000. The Town shall be
responsible for all remaining costs of the Project.
2.3 As part of the Project, the Town shall also design, bid, and install individual water
service lines to each Owner ’s property up to and into one building for each Owner for the Spruce Knob
properties.
2.4 Following completion of the Project, the Town shall determine the amount of the
allocated costs of the Spruce Knob portion of the Project and notify the Owners of their respective share of
the allocation. Construction costs for the Spruce Knob portion of the project will be tracked as separate bid
items. The allocated cost for the Spruce Knob portion of the Project shall be equally split between the total
number of customers served in the Spruce Knob portion of the Project. Allocation of the EIAF grant and
CWRPDA principal forgiveness shall be equally split between all properties served in the Project. For
example, if there are 12 Owners’ properties in Spruce Knob and 100 total properties to be served by the
Project, the allocated reduction to the Owners in Spruce Knob will be 12% of the total project grant and
principal forgiveness.
3. Owner’s Responsibilities.
3.1 Owners shall execute the Grant of Temporary Easement for the construction and
installation of the individual water service lines. Each Owner shall be responsible for payment of 1/12th of
the total cost of the installation of all the individual water service lines in the Spruce Knob portion of the
Project.
3.2 Owners shall be responsible for paying the Town’s Water System Development
Fee and Water Rights Fee (“Tap Fee”) for their individual properties. In the event an individual property
requires more than one water service line, the Owner shall pay the additional Tap Fee in full prior to
receiving water service.
4. Following determination of the allocation for the individual lots and the total cost of the
installation of water service lines, the total cost shall be equally divided by the Owners and paid as a
surcharge on their individual water bills. Also, the individual Tap Fee for each lot shall be paid by the
Owners through the surcharge.
5. The Surcharge shall be added to the individual Owners water service bill on a monthly
basis. The total surcharge for each individual property shall be amortized over 20 years with an annual
interest rate of 3.25%.
6. The Project includes a 12-inch water main for the Spruce Knob area. However, the Owners
shall only be responsible for the cost of an 8-inch water main in the allocation of costs for the Project as
determined by unit prices included in the contractor’s bid split equally between the customers served in
Spruce Knob.
7. Annexation. As provided in section 13.24.120(b) of the Town’s municipal code the Owners
agree, that if required by the Town, the Owners shall annex their property to the Town when their property
is eligible for annexation.
8. No Guarantee of Water Quality, Quantity or Pressure. The Town makes no promise or
guarantee of pressure, quantity, or quality of water supply for any purpose, nor is it to be implied from
anything herein, except as required by applicable federal, state and local laws and regulations.
9. Default. If any party to this Agreement fails to perform or otherwise breaches any of the
covenants, terms, conditions, or obligations of this Agreement, then such failure shall constitute a default.
In the event of a default by any party, the non-defaulting party shall provide written notice of the default to
the defaulting party, in accordance with the notice requirements of this Agreement. Following such written
notice, the defaulting party may cure the default within thirty (30) days. Upon cure, this Agreement shall
remain in full force and effect. If the defaulting party fails to cure, the non-defaulting party shall be entitled
to any and all legal and equitable remedies, including but not limited to any specific remedies provided for
in this Agreement. Time is of the essence in this Agreement.
9.1 Remedies for Failure to Make Payment. If any Owner is in default for failure to
make any payment required by this Agreement, together with any accrued late payment charges, then the
Town may suspend the delivery of Treated Water to any Owner until such payment is made.
9.2 No Implied Waiver. No failure by any party to insist upon strict performance of
any term, covenant or provision contained in this Agreement shall constitute a waiver of any such term,
covenant or provision unless such waiver is made in writing by the party to be bound hereby. Any waiver
of a breach of a term or condition of this Agreement shall not prevent a subsequent act, which would have
originally constituted a default under this Agreement, from having all the force and effect of a default.
10. Notices. All notices, and other communications under this Agreement shall be in writing,
except as otherwise provided for in this Agreement. All such notices and communications shall be deemed
to have been duly given on the date of service, if delivered and served personally, or served via electronic
means on the person to whom notice is given; on the next business say after deposit for overnight delivery
by a courier service such as Federal Express; or on the third day after mailing, if mailed to the party to
whom notice is to be given by first class mail, postage prepaid, and properly addressed as follows:
The Town:
Estes Park Water Superintendent
PO Box 1200
Estes Park, CO 80517
With a Copy to:
Estes Park Town Attorney
PO Box 1200
Estes Park, CO 8051
The Owners:
Jeremy & Nancy Collinet, John H. O’Connor Revocable Trust, The Bucher Family Trust, Matthew A. H.
& Cathy B. Schupanitz, Kevin J. & Kim Lee Sheumaker, William H. & Teri L. Beaver, Christina Family
Trust, Harvey Family Trust, Richard K. & Joyce A. Harvey, Patricia J. Green, Donna J. Shay, Darlene G.
Drane
(See Exhibit A for addresses)
11. Governmental Immunity. Nothing in this Agreement shall be construed to waive the
Town’s protection from liability or the limitations on its liability due to its sovereign immunity under the
Colorado Governmental Immunity Act or otherwise.
12. No Regulated Public Utility Status. The parties agree that by this Agreement the Town does
not become a regulated public utility compelled to serve other parties similarly situated. The Owners agree
that neither they nor their successors in interest shall at any time petition the Colorado Public Utilities
Commission (“PUC”) to acquire jurisdiction over any water rate set by the Town or to assert or support any
statement, policy, rulemaking, or legislation attempting to place the Town’s municipal water supply system
under the ratemaking authority or jurisdiction of the PUC or other regulatory entity.
13. No Beneficiaries. This Agreement is for the sole benefit of and binds the parties, their
personal representatives successors, and assigns. This Agreement affords no claim, benefit or right of action
to any third party. Any person besides the Town or the Owners receiving services or benefits under this
Agreement is only an incidental beneficiary.
14. No Third-Party Enforcement. Only the Town and the Owners, as parties to this Agreement,
shall have the right to bring an action to enforce the respective rights and obligations under this Agreement.
No other third party shall have the right or standing to enforce the terms of this Agreement, directly or by
derivative action on behalf of either party.
15. Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Colorado. In the event of litigation over this Agreement, jurisdiction and venue shall
be proper and exclusive in the District Court in and for Larimer County, State of Colorado.
16. Force Majeure. The Owners acknowledge that the availability of the Treated Water
provided for hereunder is dependent upon natural water resources that are variable in quantity of supply,
and which can be affected by causes beyond the Towns’ control. Moreover, the Town shall not be liable for
any delay or failure to perform its obligations under this Agreement caused by an event or condition beyond
the reasonable control of, and without the fault of the Town, including without limitation failure of facilities,
flood, earthquake, storm, lightning, fire, epidemic, contamination, war, terrorist act, riot, civil disturbance,
labor disturbance, accident, sabotage, or restraint by court or restrictions by other public authority which
delays or prevents performance, which the Town could not reasonably have avoided by exercise of due
diligence and foresight. Upon the occurrence of such an event or condition, the obligations of the Town
under this Agreement shall be excused and suspended without penalty or damages, provided that the Town
shall give the Owners written notice describing the particulars of the occurrence or condition, the
suspension of performance is of no greater scope and of no longer duration than is required by the event or
condition, and the Town proceeds with reasonable diligence to remedy its inability to perform and provides
progress reports to the Owner describing the actions taken to remedy the consequences of the event or
condition.
17. Amendment; Assignment. No amendment or modification of this Agreement shall be of
any force or effect unless in writing and executed by the parties hereto with the same formality as this
Agreement. No Owner may not assign their rights or obligations under this Agreement without the prior
written consent of the Town.
18. Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, and all of which shall constitute one and the same Agreement. Facsimile
and electronic signatures shall be acceptable and binding upon all parties.
19. Headings. All paragraph headings used herein are for the convenience of the parties and
shall have no meaning in the interpretation or effect of this Agreement.
20. Negotiated Provisions. This Agreement shall not be construed more strictly against one
party than against the other merely by virtue of the fact that it may have been prepared by counsel for one
of the parties, it being recognized that both the Town and the Owners have contributed substantially and
materially to the preparation of this Agreement.
21. Authority. The parties warrant that they have taken all actions necessary or required by
their own procedures, bylaws, or applicable law, to authorize their respective signatories to sign this
Agreement for them and to bind them to its terms.
22. Financial Obligations. All of the Town’s financial obligations under this Agreement are
contingent upon appropriation, budgeting, and availability of specific funds to discharge those obligations.
Nothing in this Agreement constitutes a debt, a direct or indirect multiple fiscal year financial obligation, a
pledge of the Town’s credit, or a payment guarantee by the Town to the Owners.
Signature Page as follows
TOWN OF ESTES PARK
_______________________________________
Mayor
State of )
) ss
County of )
The foregoing instrument was acknowledged before me by , as
of the Town of Estes Park, a Colorado municipal corporation, on behalf of the
corporation, this day of , 2025.
Witness my hand and official Seal.
My Commission expires .
Notary Public
ATTEST:
_______________________________________
Town Clerk
APPROVED AS TO FORM:
_______________________________________
Special Counsel
287 JOEL ESTES DR
_________________________________
JEREMY COLLINET
State of )
) ss
County of )
The foregoing instrument was acknowledged before me by , as
of the Town of Estes Park, a Colorado municipal corporation, on behalf of the
corporation, this day of , 2025.
Witness my hand and official Seal.
My Commission expires .
Notary Public
_________________________________
NANCY COLLINET
State of )
) ss
County of )
The foregoing instrument was acknowledged before me by , as
of the Town of Estes Park, a Colorado municipal corporation, on behalf of the
corporation, this day of , 2025.
Witness my hand and official Seal.
My Commission expires .
Notary Public
290 JOEL ESTES DR
JOHN H. OCONNOR REVOCABLE TRUST
By:_______________________________
Trustee
State of )
) ss
County of )
The foregoing instrument was acknowledged before me by , as
of the Town of Estes Park, a Colorado municipal corporation, on behalf of the
corporation, this day of , 2025.
Witness my hand and official Seal.
My Commission expires .
Notary Public
295 JOEL ESTES DR
THE BUCHER FAMILY TRUST
By:_______________________________
Trustee
State of )
) ss
County of )
The foregoing instrument was acknowledged before me by , as
of the Town of Estes Park, a Colorado municipal corporation, on behalf of the
corporation, this day of , 2025.
Witness my hand and official Seal.
My Commission expires .
Notary Public
300 JOEL ESTES DR
_________________________________
MATTHEW A. H. SCHUPANITZ
State of )
) ss
County of )
The foregoing instrument was acknowledged before me by , as
of the Town of Estes Park, a Colorado municipal corporation, on behalf of the
corporation, this day of , 2025.
Witness my hand and official Seal.
My Commission expires .
Notary Public
_________________________________
CATHY B . SCHUPANITZ
State of )
) ss
County of )
The foregoing instrument was acknowledged before me by , as
of the Town of Estes Park, a Colorado municipal corporation, on behalf of the
corporation, this day of , 2025.
Witness my hand and official Seal.
My Commission expires .
Notary Public
305 & 309 JOEL ESTES DR
_________________________________
KEVIN J. SHEUMAKER
State of )
) ss
County of )
The foregoing instrument was acknowledged before me by , as
of the Town of Estes Park, a Colorado municipal corporation, on behalf of the
corporation, this day of , 2025.
Witness my hand and official Seal.
My Commission expires .
Notary Public
_________________________________
KIM LEE SHEUMAKER
State of )
) ss
County of )
The foregoing instrument was acknowledged before me by , as
of the Town of Estes Park, a Colorado municipal corporation, on behalf of the
corporation, this day of , 2025.
Witness my hand and official Seal.
My Commission expires .
Notary Public
310 JOEL ESTES DR
_________________________________
WILLIAM H. BEAVER
State of )
) ss
County of )
The foregoing instrument was acknowledged before me by , as
of the Town of Estes Park, a Colorado municipal corporation, on behalf of the
corporation, this day of , 2025.
Witness my hand and official Seal.
My Commission expires .
Notary Public
_________________________________
TERI L. BEAVER
State of )
) ss
County of )
The foregoing instrument was acknowledged before me by , as
of the Town of Estes Park, a Colorado municipal corporation, on behalf of the
corporation, this day of , 2025.
Witness my hand and official Seal.
My Commission expires .
Notary Public
330 JOEL ESTES DR
CHRISTINA FAMILY TRUST
By:_______________________________
Trustee
State of )
) ss
County of )
The foregoing instrument was acknowledged before me by , as
of the Town of Estes Park, a Colorado municipal corporation, on behalf of the
corporation, this day of , 2025.
Witness my hand and official Seal.
My Commission expires .
Notary Public
345 JOEL ESTES DR
HARVEY FAMILY TRUST
By:_______________________________
Trustee
State of )
) ss
County of )
The foregoing instrument was acknowledged before me by , as
of the Town of Estes Park, a Colorado municipal corporation, on behalf of the
corporation, this day of , 2025.
Witness my hand and official Seal.
My Commission expires .
Notary Public
350 JOEL ESTES DR
_________________________________
RICHARD K. HARVEY
State of )
) ss
County of )
The foregoing instrument was acknowledged before me by , as
of the Town of Estes Park, a Colorado municipal corporation, on behalf of the
corporation, this day of , 2025.
Witness my hand and official Seal.
My Commission expires .
Notary Public
_________________________________
JOYCE A. HARVEY
State of )
) ss
County of )
The foregoing instrument was acknowledged before me by , as
of the Town of Estes Park, a Colorado municipal corporation, on behalf of the
corporation, this day of , 2025.
Witness my hand and official Seal.
My Commission expires .
Notary Public
375 JOEL ESTES DR
_________________________________
PATRICIA J. GREEN
State of )
) ss
County of )
The foregoing instrument was acknowledged before me by , as
of the Town of Estes Park, a Colorado municipal corporation, on behalf of the
corporation, this day of , 2025.
Witness my hand and official Seal.
My Commission expires .
Notary Public
2031 E HIGHWAY 36
_________________________________
DONNA J. SHAY
State of )
) ss
County of )
The foregoing instrument was acknowledged before me by , as
of the Town of Estes Park, a Colorado municipal corporation, on behalf of the
corporation, this day of , 2025.
Witness my hand and official Seal.
My Commission expires .
Notary Public
2061 E HIGHWAY 36
_________________________________
DARLENE G. DRANE
State of )
) ss
County of )
The foregoing instrument was acknowledged before me by , as
of the Town of Estes Park, a Colorado municipal corporation, on behalf of the
corporation, this day of , 2025.
Witness my hand and official Seal.
My Commission expires .
Notary Public
EXHIBIT A
287 JOEL ESTES DR
ESTES PARK, CO 80517
JEREMY & NANCY COLLINET
287 JOEL ESTES DR
ESTES PARK, CO 80517
290 JOEL ESTES DR
ESTES PARK, CO 80517
JOHN H. OCONNOR REVOCABLE TRUST
3216 N 176TH ST
OMAHA, NE 68116
295 JOEL ESTES DR
ESTES PARK, CO 80517
THE BUCHER FAMILY TRUST
2253 S ALTON WAY
DENVER, CO 80231
300 JOEL ESTES DR
ESTES PARK, CO 80517
MATTHEW A. H. & CATHY B . SCHUPANITZ
9296 W DAVID AVE
LITTLETON, CO 80128
305 & 309 JOEL ESTES DR
ESTES PARK, CO 80517
KEVIN J. & KIM LEE SHEUMAKER
309 JOEL ESTES DR
ESTES PARK, CO 80517
310 JOEL ESTES DR
ESTES PARK, CO 80517
WILLIAM H. & TERI L. BEAVER
310 JOEL ESTES DR
ESTES PARK, CO 80517
330 JOEL ESTES DR
ESTES PARK, CO 80517
CHRISTINA FAMILY TRUST
498 E 132ND WAY
THORNTON, CO 80241
345 JOEL ESTES DR
ESTES PARK, CO 80517
HARVEY FAMILY TRUST
345 JOEL ESTES DR
ESTES PARK, CO 80517
350 JOEL ESTES DR
ESTES PARK, CO 80517
RICHARD K. & JOYCE A. HARVEY
345 JOEL ESTES DR
ESTES PARK, CO 80517
375 JOEL ESTES DR
ESTES PARK, CO 80517
PATRICIA J. GREEN
375 JOEL ESTES DR
ESTES PARK, CO 80517
2031 E HIGHWAY 36
ESTES PARK, CO 80517
DONNA J. SHAY
4230 KING ST
DENVER, CO 80211
2061 E HIGHWAY 36
ESTES PARK, CO 80517
DARLENE G. DRANE
2061 STATE HIGHWAY 66
ESTES PARK, CO 80517
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ATTACHMENT 6
DRINKING WATER REVOLVING FUND
LOAN AGREEMENT
BETWEEN
COLORADO WATER RESOURCES AND POWER
DEVELOPMENT AUTHORITY
AND
TOWN OF ESTES PARK, COLORADO, ACTING BY AND THROUGH
ITS WATER ACTIVITY ENTERPRISE
DATED
Direct Loan - Revenue Pledge - BIL and Base - Open Funded
ATTACHMENT 7
1-
LOAN AGREEMENT
THIS LOAN AGREEMENT is made and entered into as of this ____ day of ______ 2025,
by and between COLORADO WATER RESOURCES AND POWER DEVELOPMENT
AUTHORITY (the "Authority"), a body corporate and political subdivision of the State of
Colorado, and the TOWN OF ESTES PARK, COLORADO, ACTING BY AND
THROUGH ITS WATER ACTIVITY ENTERPRISE (the "Governmental Agency").
WITNESSETH THAT:
WHEREAS, the United States of America, pursuant to the federal Safe Drinking Water Act
of 1996, assists state and local participation in the financing of the costs of drinking water system
projects and said federal Drinking Water Act requires each state to establish a drinking water
revolving fund to be administered by an instrumentality of the State.
WHEREAS, the Authority was created to initiate, acquire, construct, maintain, repair, and
operate or cause to be operated certain water resource projects, and to finance the cost thereof;
WHEREAS, Section 37-95-107.8, Colorado Revised Statutes, has created a Drinking Water
Revolving Fund to be administered by the Authority;
WHEREAS, the Authority has determined to loan certain sums to governmental agencies in
Colorado to finance all or a portion of the costs of certain water resource projects, which loans
are subject to the requirements of applicable federal law, regulations, and guidelines then in
effect;
WHEREAS, the Authority has authorized certain funds to be applied through its Drinking
Water Revolving Fund to qualified governmental agencies as Principal Forgiveness, as defined
below;
WHEREAS, the Colorado Legislature has approved a Project Eligibility List that includes
the water resource project proposed by the Governmental Agency to be financed hereunder;
WHEREAS, the Governmental Agency has made timely application to the Drinking Water
Revolving Fund for a loan to finance a portion of the cost of a certain water resource project, the
Authority has approved the Governmental Agency's application for a loan from available funds
in the Drinking Water Revolving Fund in an amount not to exceed the amount of the loan
commitment set forth in Exhibit B hereto to finance all or a portion of the cost of such project,
and the Authority has approved the application of Principal Forgiveness funds to that portion of
the Loan as set forth in Exhibit B;
WHEREAS, the Governmental Agency will issue its bond to the Authority to evidence said
loan from the Authority;
2-
NOW THEREFORE, for and in consideration of the award of the loan by the Authority, the
Governmental Agency agrees to perform its obligations under this Loan Agreement in
accordance with the conditions, covenants and procedures set forth herein and attached hereto as
a part hereof, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms as used in this Loan Agreement
shall, unless the context clearly requires otherwise, have the following meanings:
Act" means the "Colorado Water Resources and Power Development Authority Act,"
being Section 37-95-101 et seq. of the Colorado Revised Statutes, as the same may from time to
time be amended and supplemented.
Authority" means the Colorado Water Resources and Power Development Authority, a
body corporate and political subdivision of the State of Colorado duly created and validly
existing under and by virtue of the Act.
Authorized Officer" means, in the case of the Governmental Agency, the person
whose name is set forth in Paragraph (7) of Exhibit B hereto or such other person or persons
authorized pursuant to a resolution or ordinance of the governing body of the Governmental
Agency to act as an Authorized Officer of the Governmental Agency to perform any act or
execute any document relating to the Loan, the Governmental Agency Bond, or this Loan
Agreement, whose name is furnished in writing to the Authority.
Commencement Date" means the date of commencement of the term of this Loan
Agreement, as set forth in Paragraph (1) of Exhibit B attached hereto and made a part hereof.
Cost" means those costs that are eligible to be funded from draws under the Federal
Capitalization Agreement capitalizing the Drinking Water Revolving Fund and are reasonable,
necessary and allocable to the Project and are permitted by generally accepted accounting
principles to be costs of the Project.
Custodian" means Wells Fargo Bank National Association, or any successor appointed
by the Authority as custodian of the direct loan portion of the Drinking Water Revolving Fund.
Event of Default" means any occurrence or event specified in Section 5.01 hereof.
Federal Capitalization Agreement" means the instrument or agreement established or
entered into by the United States of America Environmental Protection Agency with the
Authority to make capitalization grant payments pursuant to the Safe Drinking Water Act, as
amended (42 U.S.C. Section 300f et seq.)
3-
Governmental Agency" means the entity that is a party to and is described in the first
paragraph of this Loan Agreement, and its successors and assigns.
Governmental Agency Bond" means the bond executed and delivered by the
Governmental Agency to the Authority to evidence the Loan, the form of which is attached
hereto as Exhibit D and made a part hereof.
Loan" means the loan made by the Authority to the Governmental Agency to finance or
refinance a portion of the Cost of the Project pursuant to this Loan Agreement. For all purposes
of this Loan Agreement, the amount of the Loan at any time shall be the amount of the Loan
Commitment set forth in Paragraph (4) of Exhibit B attached hereto and made a part of this Loan
Agreement, less any of such principal amount as has been repaid by the Governmental Agency
under this Loan Agreement, and less any Principal Forgiveness applied to the Loan by the
Authority pursuant to Exhibit B.
Loan Agreement" means this Loan Agreement, including the Exhibits attached hereto,
as it may be supplemented, modified, or amended from time to time in accordance with the terms
hereof.
Loan Closing" means the date upon which the Governmental Agency shall issue and
deliver the Governmental Agency Bond.
Loan Repayments" means the payments payable by the Governmental Agency
pursuant to Section 3.03 of this Loan Agreement, including payments payable under the
Governmental Agency Bond.
Loan Term" means the term of this Loan Agreement provided in Paragraph (5) of
Exhibit B attached hereto and made a part hereof, subject to the Principal Forgiveness clause set
forth in Paragraph (10) of Exhibit B, if applicable. If the Loan is prepaid in its entirety pursuant
to Section 3.06, the Loan Term shall automatically terminate.
Pledged Property" means the source of repayment described in Paragraph (3) of
Exhibit A to this Loan Agreement attached hereto and made a part hereof.
Prime Rate" means the prevailing commercial interest rate announced by the Wall
Street Journal from time to time, or, if the Wall Street Journal ceases announcing a prime rate,
shall be the prevailing commercial interest rate announced by Citibank, N.A. as its prime lending
rate.
Principal Forgiveness" means forgiveness of the Governmental Agency’s obligation to
repay that portion of the principal amount of the Loan. This may take the form of "Up-Front
Principal Forgiveness" in the amount identified in Part (4)(a) of Exhibit B, attached hereto and
made a part hereof, which amount shall be applied at Closing, or as "Post-Closing Principal
Forgiveness" in a manner to be effectuated in the Authority’s discretion as provided in
paragraph (10) of Exhibit B, or both.
4-
Project" means the project of the Governmental Agency described in Paragraph (1) of
Exhibit A attached hereto and made a part hereof, all or a portion of the Cost of which is
financed or refinanced by the Authority through the making of the Loan under this Loan
Agreement.
Project Loan Account" means the Project Loan Account established within the
Drinking Water Revolving Fund.
System" means the water system of the Governmental Agency, described in Paragraph
2) of Exhibit A, including the Project, described in Paragraph (1) of Exhibit A attached hereto
and made a part hereof, for which the Governmental Agency is making the borrowing under this
Loan Agreement, as such System may be modified, replaced, or expanded from time to time.
Except where the context otherwise requires, words importing the singular number shall
include the plural number and vice versa, and words importing persons shall include firms,
associations, corporations, agencies and districts. Words importing one gender shall include the
other gender.
ARTICLE II
REPRESENTATIONS AND COVENANTS OF GOVERNMENTAL AGENCY
SECTION 2.01. Representations of Governmental Agency. The Governmental Agency
represents for the benefit of the Authority:
a) Organization and Authority.
i) The Governmental Agency is a governmental agency as defined in the Act
and as described in the first paragraph of this Loan Agreement.
ii) The Governmental Agency has full legal right and authority and all
necessary licenses and permits required as of the date hereof to own, operate, and maintain the
System, other than licenses and permits relating to the construction and acquisition of the Project
that the Governmental Agency expects to receive in the ordinary course of business; to carry on
its activities relating thereto; and to undertake and complete the Project. The Governmental
Agency has full legal right and authority to execute and deliver this Loan Agreement; to execute,
issue, and deliver the Governmental Agency Bond; and to carry out and consummate all
transactions contemplated by this Loan Agreement and the Governmental Agency Bond. The
Project is on the drinking water project eligibility list approved by the General Assembly of the
State of Colorado pursuant to the Act and is a project that the Governmental Agency may
undertake pursuant to Colorado law, and for which the Governmental Agency is authorized by
law to borrow money.
iii) The proceedings of the Governmental Agency's governing body
approving this Loan Agreement and the Governmental Agency Bond, and authorizing their
execution, issuance, and delivery on behalf of the Governmental Agency, and authorizing the
5-
Governmental Agency to undertake and complete the Project, or to cause the same to be
undertaken and completed, have been duly and lawfully adopted and approved in accordance
with the laws of Colorado, and such proceedings were duly approved and published, if
necessary, in accordance with applicable Colorado law, at a meeting or meetings that were duly
called pursuant to necessary public notice and held in accordance with applicable Colorado law,
and at which quorums were present and acting throughout.
iv) This Loan Agreement has been, and the Governmental Agency Bond
when delivered at the Loan Closing will have been, duly authorized, executed, and delivered by
an Authorized Officer of the Governmental Agency; and, assuming that the Authority has all the
requisite power and authority to authorize, execute, and deliver, and has duly authorized,
executed, and delivered, this Loan Agreement, this Loan Agreement constitutes, and the
Governmental Agency Bond when delivered to the Authority will constitute, the legal, valid, and
binding obligations of the Governmental Agency in accordance with their respective terms; and
the information contained under "Description of the Loan" on Exhibit B attached hereto and
made a part hereof is true and accurate in all material respects.
b) Full Disclosure.
There is no fact that the Governmental Agency has not disclosed to the Authority in
writing on the Governmental Agency's application for the Loan or otherwise that materially
adversely affects the properties, activities, prospects, or condition (financial or otherwise) of the
Governmental Agency or the System, or the ability of the Governmental Agency to make all
Loan Repayments, or the ability of the Governmental Agency otherwise to observe and perform
its duties, covenants, obligations, and agreements under this Loan Agreement and the
Governmental Agency Bond.
c) Pending Litigation.
Except as disclosed to the Authority in writing, there are no proceedings pending, or, to
the knowledge of the Governmental Agency threatened, against or affecting the Governmental
Agency, in any court, or before any governmental authority or arbitration board or tribunal, that,
if adversely determined, would materially adversely affect the properties, activities, prospects, or
condition (financial or otherwise) of the Governmental Agency or the System, or the ability of
the Governmental Agency to make all Loan Repayments, or the ability of the Governmental
Agency otherwise to observe and perform its duties, covenants, obligations, and agreements
under this Loan Agreement and the Governmental Agency Bond.
d) Compliance with Existing Laws and Agreements.
The authorization, execution, and delivery of this Loan Agreement and the Governmental
Agency Bond by the Governmental Agency, the observance and performance by the
Governmental Agency of its duties, covenants, obligations, and agreements thereunder, and the
consummation of the transactions provided for in this Loan Agreement and in the Governmental
Agency Bond; the compliance by the Governmental Agency with the provisions of this Loan
Agreement and the Governmental Agency Bond; and the undertaking and completion of the
Project; will not result in any breach of any of the terms, conditions, or provisions of, or
6-
constitute a default under, or result in the creation or imposition of any lien, charge, or
encumbrance upon, any property or assets of the Governmental Agency pursuant to any existing
ordinance or resolution, trust agreement, indenture, mortgage, deed of trust, loan agreement, or
other instrument (other than the lien and charge of this Loan Agreement and the Governmental
Agency Bond) to which the Governmental Agency is a party or by which the Governmental
Agency, the System, or any of the property or assets of the Governmental Agency may be bound,
and such action will not result in any violation of the provisions of the charter or other document
pursuant to which the Governmental Agency was established, or of any laws, ordinances,
resolutions, governmental rules, regulations, or court orders to which the Governmental Agency,
the System, or the properties or operations of the Governmental Agency, are subject.
e) No Defaults.
No event has occurred and no condition exists that, upon authorization, execution, and
delivery of this Loan Agreement and the Governmental Agency Bond, or receipt of the amount
of the Loan, would constitute an Event of Default hereunder. The Governmental Agency is not in
violation of, and has not received notice of any claimed violation of, any term of any agreement
or other instrument to which it is a party, or by which it, the System, or its property, may be
bound, which violation would materially adversely affect the properties, activities, prospects, or
condition (financial or otherwise) of the Governmental Agency or the System, or the ability of
the Governmental Agency to make all Loan Repayments, or the ability of the Governmental
Agency otherwise to observe and perform its duties, covenants, obligations, and agreements
under this Loan Agreement and the Governmental Agency Bond.
f) Governmental Consent.
The Governmental Agency has obtained all permits and approvals required to date by any
governmental body or officer for the making, observance, and performance by the Governmental
Agency of its duties, covenants, obligations, and agreements under this Loan Agreement and the
Governmental Agency Bond, or for the undertaking or completion of the Project and the
financing or refinancing thereof; and the Governmental Agency has complied with all applicable
provisions of law requiring any notification, declaration, filing, or registration with any
governmental body or officer in connection with the making, observance, and performance by
the Governmental Agency of its duties, covenants, obligations, and agreements under this Loan
Agreement and the Governmental Agency Bond, or with the undertaking or completion of the
Project and the financing or refinancing thereof. Other than those relating to the construction
and acquisition of the Project, which the Governmental Agency expects to receive in the
ordinary course of business, no consent, approval, or authorization of, or filing, registration, or
qualification with, any governmental body or officer that has not been obtained is required on the
part of the Governmental Agency as a condition to the authorization, execution, and delivery of
this Loan Agreement and the Governmental Agency Bond, the undertaking or completion of the
Project or the consummation of any transaction herein contemplated.
g) Compliance with Law.
The Governmental Agency:
7-
i) is in compliance with all laws, ordinances, governmental rules, and
regulations to which it is subject, the failure to comply with which would materially adversely
affect the ability of the Governmental Agency to conduct its activities or to undertake or
complete the Project, or the condition (financial or otherwise) of the Governmental Agency or
the System; and
ii) has obtained all licenses, permits, franchises, or other governmental
authorizations presently necessary for the ownership of its property, or for the conduct of its
activities that, if not obtained, would materially adversely affect the ability of the Governmental
Agency to conduct its activities or to undertake or complete the Project, or the condition
financial or otherwise) of the Governmental Agency or the System.
h) Use of Proceeds.
The Governmental Agency will apply the proceeds of the Loan from the Authority as
described in Exhibit B attached hereto and made a part hereof (i) to finance all or a portion of the
Cost; and (ii) where applicable, to reimburse the Governmental Agency for a portion of the Cost,
which portion was paid or incurred in anticipation of reimbursement by the Authority.
SECTION 2.02. Particular Covenants of the Governmental Agency.
a) Pledge of Source of Repayment.
The Governmental Agency irrevocably pledges and grants a lien upon the source of
repayment described in Paragraph (3) of Exhibit A for the punctual payment of the principal of
and the interest on the Loan, and all other amounts due under this Loan Agreement and the
Governmental Agency Bond according to their respective terms.
b) Performance Under Loan Agreement.
The Governmental Agency covenants and agrees to maintain the System in good repair
and operating condition; to cooperate with the Authority in the observance and performance of
the respective duties, covenants, obligations and agreements of the Governmental Agency and
the Authority under this Loan Agreement; and, to comply with the covenants described in the
Exhibits to this Loan Agreement.
c) Completion of Project and Provision of Moneys Therefor.
The Governmental Agency covenants and agrees to exercise its best efforts in accordance
with prudent water utility practice to complete the Project and to provide from the Pledged
Property or other sources available to it all moneys, in excess of the total amount of proceeds it
receives under the Loan, required to complete the Project.
d) Disposition of the System.
During the Loan Term, the Governmental Agency shall not sell, lease, abandon, or
otherwise dispose of, all or substantially all, or any substantial portion, of the System or any
other system that provides revenues to provide for the payment of this Loan Agreement or the
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Governmental Agency Bond, except on ninety (90) days' prior written notice to the Authority
and, in any event, shall not so sell, lease, abandon, or otherwise dispose of the same unless the
following conditions are met: (i) the Governmental Agency shall assign this Loan Agreement in
accordance with Section 4.02 hereof and its rights and interests hereunder to the purchaser or
lessee of the System, and such purchaser or lessee shall expressly assume all duties, covenants,
obligations, and agreements of the Governmental Agency under this Loan Agreement in writing;
and (ii) the Authority shall by appropriate action determine that such sale, lease, abandonment or
other disposition will not adversely affect the Authority's ability to meet its duties, covenants,
obligations, and agreements under the Act, the Federal Clean Water Act, the Safe Drinking
Water Act, or any agreement between the Authority or the State of Colorado relating to any
capitalization grant received by the Authority or the State of Colorado under the Federal Clean
Water Act or the Safe Drinking Water Act, and in its sole discretion, approve such sale, lease,
abandonment, or other disposition.
e) Inspections; Information.
The Governmental Agency shall permit the Authority to examine, visit, and inspect, at
any and all reasonable times, the property, if any, constituting the Project, and to inspect and
make copies of, any accounts, books, and records, including (without limitation) its records
regarding receipts, disbursements, contracts, investments, and any other matters relating thereto
and to its financial standing, and shall supply such reports and information as the Authority may
reasonably require in connection therewith. In addition, the Governmental Agency shall provide
the Authority with copies of any official statements or other forms of offering prospectus relating
to any other bonds, notes, or other indebtedness of the Governmental Agency secured from the
Pledged Property and issued after the date of this Loan Agreement. At the discretion of the
Authority, the Governmental Agency may be required to provide unaudited quarterly financial
reports to the Authority.
f) Cost of Project.
The Governmental Agency certifies that the Estimated Cost of the Project, as listed in
Paragraph (3) of Exhibit B hereto and made a part hereof, is a reasonable and accurate
estimation, and that upon direction of the Authority it shall supply the Authority with a
certificate from its engineer stating that such cost is a reasonable and accurate estimation, taking
into account investment income to be realized during the course of the Project, and other money
that would, absent the Loan, have been used to pay the Estimated Cost of the Project.
g) Reimbursement for Ineligible Costs.
The Governmental Agency shall promptly reimburse the Authority for any portion of the
Loan that is determined not to be a Cost of the Project and that would not be eligible for funding
from draws under the Drinking Water Revolving Fund. Such reimbursement shall be promptly
repaid to the Authority upon written request of the Authority and shall be applied by the
Authority to reduce the principal amount of the Loan.
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h) Advertising.
The Governmental Agency agrees not to advertise the Project for bids until plans and
specifications for the Project, if such plans and specifications require approval, have been
approved by the State Department of Public Health and Environment.
i) Commencement of Construction.
Within twelve (12) months after the Loan Closing, the Governmental Agency shall
initiate construction of the Project.
j) Interest in Project Site.
As a condition of the Loan, the Governmental Agency will demonstrate to the satisfaction
of the Authority before advertising for bids for construction that the Governmental Agency has
or will have a fee simple or such other estate or interest in the site of the Project, including
necessary easements and rights-of-way, as the Authority finds sufficient to assure undisturbed
use and possession for the purpose of construction and operation of the Project for the estimated
life of the Project.
k) No Lobbying.
No portion of the Loan shall be used for lobbying or propaganda as prohibited by 18
U.S.C. Section 1913 or Section 607(a) of Public Law 96-74.
l) Operation and Maintenance of System.
The Governmental Agency covenants and agrees that it shall, in accordance with prudent
water utility practice: (i) at all times operate the properties of its System and any business in
connection therewith in an efficient manner; (ii) maintain its System in good repair, working
order and operating condition; (iii) from time to time make all necessary and proper repairs,
renewals, replacements, additions, betterments, and improvements with respect to its System so
that at all times the business carried on in connection therewith shall be properly and
advantageously conducted; provided, however, this covenant shall not be construed as requiring
the Governmental Agency to expend any funds that are derived from sources other than the
operation of its System or other receipts of such System that are not pledged under subsection (a)
of this Section 2.02, and provided further that nothing herein shall be construed as preventing the
Governmental Agency from doing so.
m) Records; Accounts.
During the Loan Term, the Governmental Agency shall keep accurate records and
accounts for its System (the “System Records”), separate and distinct from its other records and
accounts (the "General Records"). Such System Records shall be maintained in accordance with
generally accepted accounting principles, generally accepted government accounting standards
related to the reporting of infrastructure assets and System Records and General Records shall be
made available for inspection by the Authority at any reasonable time.
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n) Audits.
i) If the Governmental Agency's System Records or General Records are
audited annually by an independent accountant, then it shall furnish a copy of such annual
audit(s) including all written comments and recommendations of the accountant preparing the
audit to the Authority within 210 days of the close of the fiscal year audited, and the
Governmental Agency shall cause its independent auditor to file with the Authority a report to
the effect that the Governmental Agency is not in default of its Rate Covenant, Paragraph (1) of
Exhibit F; Operations and Maintenance Reserve Fund Covenant, Paragraph (5) of Exhibit F; or
Lien Representation, Paragraph (4) of Exhibit F under this Loan Agreement, which report may
be a part of the annual audit or a separate document.
ii) If the Governmental Agency's annual revenues are less than $100,000, and
the Governmental Agency elects in accordance with state law to file a short form audit
exemption in lieu of performing an annual audit, then it shall provide the Authority a copy of
the Exemption from Audit Form completed by a person skilled in governmental accounting
practices, together with a report, also completed by a person skilled in governmental accounting
practices, to the effect that the Governmental Agency is not in default of its Rate Covenant,
Paragraph (1) of Exhibit F; Operations and Maintenance Reserve Fund Covenant, Paragraph (5)
of Exhibit F; or Lien Representation, Paragraph (4) of Exhibit F under this Loan Agreement
within 210 days of the close of the fiscal year.
iii) If the Governmental Agency's annual revenues are more than $100,000,
but less than $500,000, and the Governmental Agency elects in accordance with state law to file
a long form audit exemption in lieu of performing an annual audit, then it shall provide the
Authority a copy of the Exemption from Audit Form completed by an independent accountant
with knowledge of governmental accounting practices, together with a report, also completed by
an independent accountant with knowledge of governmental accounting practices, to the effect
that the Governmental Agency is not in default of its Rate Covenant, Paragraph (1) of Exhibit F;
Operations and Maintenance Reserve Fund Covenant, Paragraph (5) of Exhibit F; or Lien
Representation, Paragraph (4) of Exhibit F under this Loan Agreement within 210 days of the
close of the fiscal year.
o) Insurance.
During the Loan Term, the Governmental Agency shall maintain or cause to be
maintained in force, insurance policies with responsible insurers or self-insurance programs
providing against risk of direct physical loss, damage, or destruction of its System, at least to the
extent that similar insurance is usually carried by utilities constructing, operating, and maintain-
ing utility system facilities of the nature of the Governmental Agency's System, including
liability coverage. The Governmental Agency shall pay all insurance premiums for coverage
required hereby from revenues derived from the operation of the System. Nothing herein shall
be deemed to preclude the Governmental Agency from asserting against any party, other than the
Authority, a defense that may be available to the Governmental Agency, including, without
limitation, a defense of governmental immunity.
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p) Notice of Material Adverse Change.
During the Loan Term, (i) the Governmental Agency shall promptly notify the Authority
of any material adverse change in the activities, prospects, or condition (financial or otherwise)
of the Governmental Agency relating to its System, or its ability to observe and perform its
duties, covenants, obligations, and agreements under this Loan Agreement; (ii) the Governmental
Agency shall promptly notify the Authority of any material adverse change in the activities,
prospects, or condition (financial or otherwise) of the Governmental Agency relating to its ability
to make all Loan Repayments from the Pledged Property, or its ability to otherwise observe and
perform its duties, covenants, obligations, and agreements under this Loan Agreement and the
Governmental Agency Bond.
q) Hiring Requirements.
The Governmental Agency agrees to comply with the requirements found at Title 8,
Article 17, Colorado Revised Statutes.
r) Additional Covenants and Requirements.
Additional covenants and requirements are included on Exhibit F attached hereto and
made a part hereof. The Governmental Agency agrees to observe and comply with each such
additional covenant and requirement included on Exhibit F.
s) Continuing Representations.
The representations of the Governmental Agency contained herein shall be true at the
time of the execution of this Loan Agreement and the Governmental Agency covenants not to
take any action that would cause them not to be true at all times during the term of this Loan
Agreement.
t) Capacity Development.
The Governmental Agency covenants to maintain its technical, financial, and managerial
capability to ensure compliance with the requirements of the Safe Drinking Water Act of 1996
under Section 1452(a)(3)(A)(i).
u) Archeological Artifacts.
In the event that archeological artifacts or historical resources are unearthed during
construction excavation, the Governmental Agency shall stop or cause to be stopped,
construction activities and will notify the State Historic Preservation Office and the Authority of
such unearthing.
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ARTICLE III
LOAN TO GOVERNMENTAL AGENCY; AMOUNTS PAYABLE;
GENERAL AGREEMENTS
SECTION 3.01. The Loan. The Authority hereby agrees to loan and disburse to the
Governmental Agency in accordance with Section 3.02 hereof, and the Governmental Agency
agrees to borrow and accept from the Authority, the Loan in the principal amount equal to the
Loan Commitment set forth in Paragraph (4) of Exhibit B attached hereto and made a part hereof
as such Loan Commitment may be revised to reflect a reduction in the Cost of the Project prior
to the initial Loan Repayment; provided, however, that the Authority shall be under no obligation
to make the Loan if (i) the Governmental Agency does not deliver its Governmental Agency
Bond to the Authority on the Loan Closing, or (ii) an Event of Default has occurred and is
continuing under this Loan Agreement. The Governmental Agency shall use the proceeds of the
Loan strictly in accordance with Section 2.01(h) hereof.
SECTION 3.02. Disbursement of the Loan. The Authority has created in the Drinking Water
Revolving Fund a Project Loan Account for this Project from which the Costs of the Project shall
be paid. Amounts shall be transferred into the Project Loan Account and disbursed to the
Governmental Agency upon receipt of a requisition executed by an Authorized Officer, and
approved by the Authority and the State Department of Public Health and Environment, in the
form set forth in Exhibit G; provided that the Disbursement of the Loan may be withheld if the
Governmental Agency is not complying with any of the covenants and conditions in the Loan
Agreement.
SECTION 3.03. Amounts Payable.
a) The Governmental Agency shall repay the principal due on the Loan, after
accounting for the reduction in the principal of the Loan due to application of Up-Front Principal
Forgiveness at Closing, semi-annually on May 1st and November 1st in accordance with the
schedule set forth on Exhibit C attached hereto and made a part hereof, as the same may be
amended or modified, commencing on the Loan Repayment Commencement Date set forth in
Paragraph (8) of Exhibit B.
The Governmental Agency shall execute the Governmental Agency Bond to evidence its
obligations to make Loan Repayments and the obligations of the Governmental Agency under
the Governmental Agency Bond shall be deemed to be amounts payable under this Section 3.03.
Each Loan Repayment shall be deemed to be a credit against the corresponding obligation of the
Governmental Agency under this Section 3.03 and shall fulfill the Governmental Agency's
obligation to pay such amount hereunder and under the Governmental Agency Bond. Each
payment made pursuant to this Section 3.03 shall be applied to the payment of principal as set
forth in Exhibit C.
b) In addition to the payments required by subsection (a) of this Section 3.03, the
Governmental Agency shall pay a late charge for any payment that is received by the Authority
later than the tenth (10th) day following its due date, in an amount equal to the greater of twelve
percent (12%) per annum or the Prime Rate plus one half of one percent per annum on such late
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payment from its due date to the date it is actually paid; provided, however, that such late charge
shall not be in excess of the maximum rate permitted by law as of the date hereof.
c) Loan Repayments pursuant to this Section 3.03 shall be made by electronic means
either by bank wire transfer or by Automated Clearing House “ACH” transfer).
SECTION 3.04. Loan Repayment – Principal Forgiveness. The Authority has determined to
apply Up-Front Principal Forgiveness to the principal amount of the Loan in an amount
identified in Exhibit B, Part (4)(a). The amount of Up-Front Principal Forgiveness set forth in
Exhibit B, Part (4)(a), will not need to be repaid. Further, at the discretion of the Authority, and
if such funds are available and the Governmental Agency is deemed eligible, the Loan may be
forgiven in an amount up to 100% of the principal amount of the Loan pursuant to the terms and
conditions of the current Capitalization Grant, in a manner to be effectuated as set forth in
Paragraph 10 of Exhibit B attached hereto and made a part hereof. At the Authority’s sole
discretion, and subject to Exhibit B, Paragraph 10(b)(ii)(C), and only if the amount to be
forgiven is 100%, the Authority also may waive payment of any interest accrued on the amount
of principal forgiven through the Effective Date of Post-Closing Principal Forgiveness (defined
in Exhibit B, Paragraph 10(b)).
SECTION 3.05. Unconditional Obligations. The Loan Repayments and all other payments
required hereunder are payable solely from the Pledged Property. The obligation of the
Governmental Agency to make the Loan Repayments and all other payments required hereunder
shall be absolute and unconditional and shall not be abated, rebated, set-off, reduced, abrogated,
terminated, waived, diminished, postponed or otherwise modified in any manner or to any extent
whatsoever, while any payments due under the Loan Agreement remain unpaid regardless of any
contingency, act of God, event or cause whatsoever, including (without limitation) any acts or
circumstances that may constitute failure of consideration, eviction or constructive eviction, the
taking by eminent domain or destruction of or damage to the Project, commercial frustration of
the purpose, any change in the laws of the United States of America or of the State of Colorado
or any political subdivision of either or in the rules or regulations of any governmental authority,
any failure of the Authority to perform and observe any agreement, whether express or implied,
or any duty, liability or obligation arising out of or connected with the Project or this Loan
Agreement or any rights of set-off, recoupment, abatement or counterclaim that the
Governmental Agency might otherwise have against the Authority or any other party or parties;
provided, however, that payments hereunder shall not constitute a waiver of any such rights.
SECTION 3.06. Disclaimer of Warranties and Indemnification. The Governmental Agency
acknowledges and agrees that (i) the Authority makes no warranty or representation, either
express or implied as to the value, design, condition, merchantability, or fitness for particular
purpose, or fitness for any use, of the Project or any portions thereof, or any other warranty or
representation with respect thereto; (ii) in no event shall the Authority or its agents be liable or
responsible for any direct, incidental, indirect, special, or consequential damages in connection
with or arising out of this Loan Agreement, or the Project, or the existence, furnishing,
functioning, or use of the Project, or any item or products or services provided for in this Loan
Agreement; and (iii) to the extent authorized by law, the Governmental Agency shall indemnify,
save, and hold harmless the Authority against any and all claims, damages, liability, and court
awards, including costs, expenses, and attorney fees incurred as a result of any act or omission
by the Governmental Agency, or its employees, agents, or subcontractors pursuant to the terms
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of this Loan Agreement, provided, however, that the provisions of this clause (iii) are not
intended to and shall not be construed as a waiver of any defense or limitation on damages
provided for under and pursuant to the Colorado Governmental Immunity Act (Section 24-10-
101, et seq. C.R.S.), or under the laws of the United States or the State of Colorado.
SECTION 3.07. Option to Prepay Loan Repayments. The Governmental Agency may
prepay the Loan Repayments, in whole or in part without penalty upon prior written notice
unless otherwise waived by the Authority) of not less than thirty (30) days. Prepayments shall
be applied first to accrued interest and then to principal on the Loan. The Authority will amend
Exhibit C to reflect any prepayment of the principal amount of the Loan.
SECTION 3.08. Source of Payment of Governmental Agency's Obligations. The Authority
and the Governmental Agency agree that the amounts payable by the Governmental Agency
under this Loan Agreement, including, without limitation, the amounts payable by the
Governmental Agency pursuant to Section 3.03, Section 3.05, Section 3.06, and Section 5.04 of
this Loan Agreement are payable solely from the Pledged Property, and are not payable from any
other source whatsoever; provided, however, that the Governmental Agency at its option, may
elect to make payment from any source available to it.
SECTION 3.09. Delivery of Documents. Concurrently with the execution and delivery of this
Loan Agreement, the Governmental Agency will cause to be delivered to the Authority each of
the following items:
a) an opinion of the Governmental Agency's counsel substantially in the form set
forth in Exhibit E-1 hereto (such opinion or portions of such opinion may be given by one or
more counsel); provided, however, that the Authority may in its discretion permit variances in
such opinion from the form or substance of such Exhibit E-1 if such variances are not to the
material detriment of the interests of the Authority;
b) an opinion of the Governmental Agency's Bond Counsel substantially in the form
set forth in Exhibit E-2 hereto. Such opinion must be rendered by Bond Counsel listed in the
Directory of Bond Counsel published by the Bond Buyer (the "Red Book");
c) executed counterparts of this Loan Agreement;
d) copies of the resolutions or ordinances of the governing body of the
Governmental Agency authorizing the execution and delivery of this Loan Agreement and the
Governmental Agency Bond, certified by an Authorized Officer of the Governmental Agency;
and
e) such other certificates, documents, opinions, and information as the Authority
may require.
Upon receipt of the foregoing documents, the Authority shall obligate the amount of the Loan
Commitment set forth in Paragraph (4) of Exhibit B, and make the amount of the Loan available
for the Project in accordance with the terms of this Loan Agreement.
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ARTICLE IV
ASSIGNMENT
SECTION 4.01. Assignment and Transfer by Authority. The Governmental Agency
expressly acknowledges that other than the right, title, and interest of the Authority under Section
3.05, Section 5.04, and Section 5.07, all right, title, and interest of the Authority in, to, and under
this Loan Agreement and the Governmental Agency Bond, including, without limitation, the
right to receive payments required to be made by the Governmental Agency hereunder, and to
compel or otherwise enforce observance and performance by the Governmental Agency of its
other duties, covenants, obligations, and agreements hereunder, may be transferred, assigned,
and reassigned in whole or in part by the Authority at its sole discretion to one or more assignees
or subassignees at any time subsequent to their execution without the necessity of obtaining the
consent of, but after giving prior written notice to, the Governmental Agency.
The Authority shall retain the right to compel or otherwise enforce observance and performance
by the Governmental Agency of its duties, covenants, obligations, and agreements under Section
3.05 and Section 5.04.
SECTION 4.02. Assignment by Governmental Agency. Neither this Loan Agreement nor the
Governmental Agency Bond may be assigned by the Governmental Agency for any reason,
unless the following conditions shall be satisfied: (i) the Authority shall have approved said
assignment in writing; (ii) the assignee shall be a governmental agency as defined by the Act,
and the assignee shall have expressly assumed in writing the full and faithful observance and
performance of the Governmental Agency's duties, covenants, agreements, and obligations under
the Loan Agreement; (iii) immediately after such assignment, the assignee shall not be in default
in the performance or observance of any duties, covenants, obligations, or agreements of the
Governmental Agency under this Loan Agreement; and (iv) the Authority shall receive an
opinion of counsel to the effect that such assignment will not violate the provisions of any
agreement entered into by the Authority with, or condition of any grant received by the Authority
from, the United States of America relating to the Federal Capitalization Agreement or any
capitalization grant received by the Authority or the State under the Safe Drinking Water Act.
No assignment shall relieve the Governmental Agency from primary liability for any of its
obligations under this Loan Agreement, and in the event of such assignment, the Governmental
Agency shall continue to remain primarily liable for the performance and observance of its
obligations to be performed and observed under this Loan Agreement.
ARTICLE V
DEFAULTS AND REMEDIES
SECTION 5.01. Event of Default. If any of the following events occur, it is hereby defined as
and declared to be and to constitute an "Event of Default":
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a) failure by the Governmental Agency to pay, or cause to be paid, any Loan
Repayment required to be paid hereunder when due, which failure shall continue for a period of
thirty (30) days;
b) failure by the Governmental Agency to make, or cause to be made, any required
payments of interest and principal, redemption premium, if any, and interest on any bonds, notes,
or other obligations of the Governmental Agency for borrowed money (other than the Loan and
the Governmental Agency Bond), after giving effect to the applicable grace period, the payments
of which are secured by the Pledged Property;
c) failure by the Governmental Agency to observe and perform any duty, covenant,
obligation or agreement on its part to be observed or performed under this Loan Agreement other
than as referred to in Paragraph (a) of this Section, which failure shall continue for a period of
thirty (30) days after written notice, specifying such failure and requesting that it be remedied, is
given to the Governmental Agency; provided, however, that if the failure stated in such notice is
correctable, but cannot be corrected within the applicable period, the Authority may consent to
an extension of such time if corrective action is instituted by the Governmental Agency within
the applicable period and diligently pursued until the Event of Default is corrected;
d) any representation made by or on behalf of the Governmental Agency contained
in this Loan Agreement, or in any instrument furnished in compliance with or with reference to
this Loan Agreement or the Loan, is false or misleading in any material respect; or
e) (i) a petition is filed by or against the Governmental Agency under any federal or
state bankruptcy or insolvency law, or other similar law in effect on the date of this Loan
Agreement or thereafter enacted, unless in the case of any such petition filed against the
Governmental Agency such petition shall be dismissed within thirty (30) days after such filing,
and such dismissal shall be final and not subject to appeal; or (ii) the Governmental Agency shall
become insolvent, or bankrupt or make an assignment for the benefit of its creditors; or (iii) a
custodian (including, without limitation, a receiver, liquidator, or trustee of the Governmental
Agency or any of its property) shall be appointed by court order, or take possession of the
Governmental Agency, or its property or assets, if such order remains in effect, or such
possession continues, for more than thirty (30) days.
SECTION 5.02. Notice of Default. The Governmental Agency shall give the Authority prompt
telephonic notice of the occurrence of any Event of Default referred to in Section 5.01 at such
time as any senior administrative or financial officer of the Governmental Agency becomes
aware of the existence thereof. Any telephonic notice pursuant to this Section 5.02 shall be
confirmed by the Governmental Agency in writing as soon as practicable.
SECTION 5.03. Remedies on Default. Whenever an Event of Default referred to in Section
5.01 hereof shall have occurred and be continuing, the Authority shall have the right to withhold
disbursement of Loan funds remaining, and take such other action at law or in equity as may
appear necessary to enforce the performance and observance of any duty, covenant, obligation,
or agreement of the Governmental Agency hereunder, including, without limitation, appointment
ex parte of a receiver of the System.
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SECTION 5.04. Attorney's Fees and Other Expenses. In the Event of Default, the
Governmental Agency shall on demand pay to the Authority the reasonable fees and expenses of
attorneys, and other reasonable expenses (including, without limitation, the reasonably allocated
costs of in-house counsel and legal staff) incurred by the Authority in the collection of Loan
Repayments or any other sum due hereunder as a result of such default, or in the enforcement of
the performance or observation of any other duties, covenants, obligations, or agreements of the
Governmental Agency to remedy such default.
SECTION 5.05. Application of Moneys. Any moneys collected by the Authority pursuant to
Section 5.03 hereof shall be applied (a) first, to pay any attorney's fees, or other fees and
expenses owed by the Governmental Agency pursuant to Section 5.04 hereof, (b) second, to pay
principal due and payable on the Loan, and (c) third, to pay any other amounts due and payable
under this Loan Agreement.
SECTION 5.06. No Remedy Exclusive; Waiver; Notice. No remedy herein conferred upon or
reserved to the Authority is intended to be exclusive, and every such remedy shall be cumulative
and shall be in addition to every other remedy given under this Loan Agreement, or now or
hereafter existing at law or in equity. No delay or omission to exercise any right, remedy, or
power accruing upon any Event of Default shall impair any such right, remedy, or power, or
shall be construed to be a waiver thereof, but any such right, remedy, or power may be exercised
from time to time and as often as may be deemed expedient. In order to entitle the Authority to
exercise any remedy reserved to it in this Article, it shall not be necessary to give any notice,
other than such notice as may be required in this Article V.
SECTION 5.07. Retention of Authority's Rights. Notwithstanding any assignment or transfer
of this Loan Agreement pursuant to the provisions hereof, or anything else to the contrary
contained herein, the Authority shall have the right upon the occurrence of an Event of Default to
take any action, including (without limitation) bringing an action against the Governmental
Agency at law or in equity, as the Authority may, in its discretion, deem necessary to enforce the
obligations of the Governmental Agency to the Authority pursuant to Section 5.04, Section 3.03,
and Section 3.05 hereof.
SECTION 5.08. Default by the Authority. In the event of any default by the Authority under
any covenant, agreement, or obligation of this Loan Agreement, the Governmental Agency's
remedy for such default shall be limited to injunction, special action, action for specific
performance, or any other available equitable remedy, designed to enforce the performance or
observance of any duty, covenant, obligation, or agreement of the Authority hereunder, as may
be necessary or appropriate. The Authority shall on demand pay to the Governmental Agency
the reasonable fees and expenses of attorneys, and other reasonable expenses, in the enforcement
of such performance or observation.
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ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Notices. All notices, certificates, or other communications hereunder shall be
sufficiently given and shall be deemed given when hand-delivered or mailed by registered or
certified mail, postage prepaid, to the Governmental Agency at the address specified on Exhibit
B attached hereto and made a part hereof, and to the Authority, at the following address:
Colorado Water Resources and Power
Development Authority
1580 N. Logan Street, Suite 820
Denver, Colorado 80203
Attention: Executive Director
Such address may be changed by notice in writing.
SECTION 6.02. Binding Effect. This Loan Agreement shall inure to the benefit of, and shall
be binding upon, the Authority and the Governmental Agency, and their respective successors
and assigns.
SECTION 6.03. Severability. In the event any provision of this Loan Agreement shall be held
illegal, invalid, or unenforceable by any court of competent jurisdiction, such holding shall not
invalidate, render unenforceable, or otherwise affect, any other provision hereof.
SECTION 6.04. Amendments, Supplements and Modifications. This Loan Agreement may
not be amended, supplemented, or modified without the prior written consent of the Authority
and the Governmental Agency.
SECTION 6.05. Execution in Counterparts. This Loan Agreement may be executed in
several counterparts, each of which shall be an original, and all of which shall constitute but one
and the same instrument.
SECTION 6.06. Applicable Law and Venue. This Loan Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado, including the Act. Venue for any
action seeking to interpret or enforce the provisions of this Loan Agreement shall be in the
Denver District Court.
SECTION 6.07. Consents and Approvals. Whenever the written consent or approval of the
Authority shall be required under the provisions of this Loan Agreement, such consent or
approval may only be given by the Authority unless otherwise provided by law, or by rules,
regulations or resolutions of the Authority.
SECTION 6.08. Captions. The captions or headings in this Loan Agreement are for
convenience only and shall not in any way define, limit, or describe, the scope or intent of any
provisions or sections of this Loan Agreement.
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SECTION 6.09. Further Assurances. The Governmental Agency shall, at the request of the
Authority, authorize, execute, acknowledge, and deliver, such further resolutions, conveyances,
transfers, assurances, financing statements, and other instruments, as may be necessary or
desirable for better assuring, conveying, granting, assigning, and confirming, the rights and
agreements, granted or intended to be granted, by this Loan Agreement and the Governmental
Agency Bond.
SECTION 6.10. Recitals. This Loan Agreement is authorized pursuant to and in accordance
with the Constitution of the State of Colorado and all other laws of the State of Colorado
thereunto enabling. Specifically, but not by way of limitation, this Loan Agreement is authorized
by the Governmental Agency pursuant to Title 37, Article 45.1 C.R.S., Title 31, Article 35, Part
4, C.R.S. and Title 11, Article 57, Part 2, C.R.S and shall so recite in the Governmental Agency
Bond. Such recitals shall conclusively impart full compliance with all provisions and limitations
of such laws and shall be conclusive evidence of the validity and regularity of the issuance of the
Governmental Agency Bond, and the Governmental Agency Bond delivered by the
Governmental Agency to the Authority containing such recital shall be incontestable for any
cause whatsoever after its delivery for value.
A-1
EXHIBIT A
1) Description of the Project
The project consists of improvements to portions of the Carriage Hills Water System distribution system
and replacement of the Spruce Knob Water Company distribution system. Spruce Knob Water Company
will permanently connect to the Town's distribution system and dissolve following completion of the
project.
2) Description of the System
System" shall mean, (i) any facility, plant, works, system, building, structure, improvement, machinery,
equipment, fixture or other real or personal property, relating to the collection, treatment, storage and
distribution of water that is owned, operated or controlled by the Governmental Agency, including,
without limitation, the Project (ii) any renewal, replacement, addition, modification or improvement to
i) above, and (iii) all real or personal property and rights therein and appurtenances thereto necessary or
useful or convenient for the effectiveness of the purposes of the Governmental Agency in the
transmission, treatment, storage and distribution of water.
3) Pledged Property
The Pledged Property shall consist of Net Revenue, as defined below:
Net Revenue” means the Gross Revenue after deducting the Operation and Maintenance Expenses.
Gross Revenue” means all income and revenues directly or indirectly derived by the Governmental
Agency from the operation and use of the System, or any part thereof, including without limitation, any
rates, fees (including without limitation plant investment fees and availability fees), and charges for the
services furnished by, or the use of, the System, and all income attributable to any past or future
dispositions of property or rights, or related contracts, settlements, or judgments held or obtained in
connection with the System or its operations, and including investment income accruing from such
moneys; provided however, that there shall be excluded from Gross Revenue: ad valorem property
taxes; any moneys borrowed and used for providing Capital Improvements; any money and securities,
and investment income therefrom, in any refunding fund, escrow account, or similar account, pledged to
the payment of any bonds or other obligations; and any moneys received as grants or appropriations
from the United States, the State of Colorado or other sources, the use of which is limited or restricted
by the grantor or donor to the provision of Capital Improvements or for other purposes resulting in the
general unavailability thereof, except to the extent any such moneys shall be received as payments for
the use of the System, services rendered thereby, the availability of any such service, or the disposal of
any commodities therefrom.
Capital Improvements” means the acquisition of land, easements, facilities and equipment (other than
ordinary repairs and replacements), and the construction or reconstruction of improvements,
betterments, and extensions, for use by, or in connection with, the System in accordance with Generally
Accepted Accounting Principles.
Operation and Maintenance Expenses” means all reasonable and necessary current expenses of the
Governmental Agency, paid or accrued, for operating, maintaining and repairing the System, including
without limitation legal and overhead expenses of the Governmental Agency directly related to the
administration of the System, insurance premiums, audits, professional services, salaries and
administrative expenses, labor and the cost of materials and supplies for current operation; provided
A-2
however, that there shall be excluded from Operation and Maintenance Expenses any allowance for
depreciation, payments in lieu of taxes or franchise fees, expenses incurred in connection with Capital
Improvements, payments due in connection with any bonds or other obligations, and expenses that are
otherwise paid from ad valorem property taxes.
B-1
EXHIBIT B
DESCRIPTION OF THE LOAN
1) Commencement Date: _______
2) Name and Address of Governmental Agency:
Town of Estes Park, Colorado, Acting By And Through Its Water Activity Enterprise
170 MacGregor Ave, P.O. Box 1200
Estes Park, CO 80517
3) Estimated Cost of the Project: $8,266,597
4) Maximum Principal Amount of Loan Commitment: $5,000,000
a) Up-Front Principal Forgiveness to be Applied at Closing: $1,500,000
b) Maximum Total Principal to be Repaid after Application of Up-Front Principal Forgiveness:
3,500,000
5) Loan Term: 20 years
6) Interest Rate: 3.25% annually
7) Authorized Officers:
Duane Hudson, Finance Director
Jacqui Wesley, Project Manager - Utilities
8) Loan Repayment Commencement Date: May 1, 2025
9) Execution Date: ________
10) Principal Forgiveness:
a) Up-Front Principal Forgiveness: The amount of principal of the Loan identified as Up-Front
Principal Forgiveness in Part (4)(a) above will be forgiven at Closing, provided the Governmental
Agency has met each of its obligations and covenants necessary to effect Closing. Exhibit C to the
B-2
Loan Agreement sets forth the repayment schedule after allowing for the reduction of total Loan
principal by the amount of Up-Front Principal Forgiveness applied.
b) Post-Closing Principal Forgiveness: At the discretion of the Authority, and if such funds are
available and the Governmental Agency is deemed eligible, the Loan may be forgiven in an amount
up to 100% of the outstanding principal amount of the Loan. At the Authority’s sole discretion, and
subject to subparagraph (10)(b)(i), below, and only if the amount forgiven is 100% of the
outstanding principal of the Loan, the Authority also may waive payment of interest accrued on the
amount of principal forgiven through the Effective Date of Post-Closing Principal Forgiveness
defined in Paragraph 10(b)(i)). The Authority will provide written notice (the “Notice of Post-
Closing Principal Forgiveness”) to the Governmental Agency once the Authority determines to
exercise its discretion to grant Post-Closing Principal Forgiveness, that funds are available, and that
the Governmental Agency is eligible for such action. The Notice of Post-Closing Principal
Forgiveness will set forth the amount, up to 100%, of the outstanding principal amount of the Loan
to be forgiven, and whether any accrued interest will be waived. Upon the Governmental Agency’s
receipt of the Notice of Post-Closing Principal Forgiveness from the Authority, the following terms
shall apply:
i) If 100% of the principal amount of the Loan is forgiven, then:
A. The award of Post-Closing Principal Forgiveness shall be effective as of the date of the
Notice of Post-Closing Principal Forgiveness (the “Effective Date of 100% Principal
Forgiveness”);
B. The Authority shall amend the repayment schedule set forth in Exhibit C to acknowledge
the Post-Closing Principal Forgiveness award and the Effective Date of 100% Principal
Forgiveness and the waiver of any accrued interest as applicable;
C. The Authority shall amend the Loan Term to extend from the date of Loan Execution until
the date the Water Quality Control Division of the Colorado Department of Health and
Environment (the “WQCD”) issues certification that all required documents have been
submitted and the Governmental Agency has met all Project and Loan requirements;
D. The Governmental Agency Bond will be released at the expiration of the Loan Term, as
amended; and
E. As of the Effective Date of 100% Principal Forgiveness, the following Loan Agreement
sections will no longer apply: Section 2.02. (n) Audits; Section 3.03. Amounts Payable;
Exhibit A (3) Pledged Property; Exhibit F (1) Rate Covenant; Exhibit B (5) Loan Term;
Exhibit B (6) Interest Rate; Exhibit B (8) Loan Repayment Commencement Date; Exhibit C
Repayment Schedule; and all references thereof.
ii) If the Governmental Agency receives Post-Closing Principal Forgiveness for less than 100%
of the outstanding principal amount of the Loan, then:
A. The Effective Date of the Post-Closing Principal Forgiveness shall be the date of the Notice
of Post-Closing Principal Forgiveness from the Authority (the “Effective Date of Partial
Principal Forgiveness”); and
B-3
B. Upon the Effective Date of Partial Principal Forgiveness, the Loan Term shall remain as set
forth in this Loan Agreement, but the Authority shall amend the Loan Repayment Schedule
set forth in Exhibit C to include a revised amortization schedule for the remaining principal
amount.
C. If the Effective Date of Principal Forgiveness, either 100% or Partial, occurs after the Loan
Repayment Commencement Date, and the Governmental Agency has paid one or more of
the scheduled payments, the Post-Closing Principal Forgiveness, as well as any waived
interest accrued on the amount of principal forgiven through the Effective Date of Principal
Forgiveness, will be net of any such payments. The Authority will not reimburse the
Governmental Agency any amount paid by the Governmental Agency.
LOAN DATE:TBD
TOTAL LOAN AMOUNT:$5,000,000.00 INTEREST DATE:TBD
Total Loan Amount is Comprised Of:
UP-FRONT BIL PRINCIPAL FORGIVENESS:$1,500,000.00
REPAYABLE BIL LOAN PRINCIPAL (A) AMOUNT:$838,077.02
REPAYABLE BASE LOAN PRINCIPAL (B) AMOUNT:$2,661,922.98
3,500,000.00
INTEREST RATE:3.250%
TERM (YEARS):20
PAYMENT REMAINING CALCULATED
DATES PAYMENT PRINCIPAL PRINCIPAL INTEREST
3,500,000.00
5/1/2025 $30,585.28 $16,050.56 $3,483,949.44 $14,534.72
11/1/2025 $121,309.55 $64,695.37 $3,419,254.07 $56,614.18
5/1/2026 $121,309.55 $65,746.67 $3,353,507.40 $55,562.88
11/1/2026 $121,309.55 $66,815.05 $3,286,692.35 $54,494.50
5/1/2027 $121,309.55 $67,900.80 $3,218,791.55 $53,408.75
11/1/2027 $121,309.55 $69,004.19 $3,149,787.36 $52,305.36
5/1/2028 $121,309.55 $70,125.51 $3,079,661.85 $51,184.04
11/1/2028 $121,309.55 $71,265.04 $3,008,396.81 $50,044.51
5/1/2029 $121,309.55 $72,423.10 $2,935,973.71 $48,886.45
11/1/2029 $121,309.55 $73,599.98 $2,862,373.73 $47,709.57
5/1/2030 $121,309.55 $74,795.98 $2,787,577.75 $46,513.57
11/1/2030 $121,309.55 $76,011.41 $2,711,566.34 $45,298.14
5/1/2031 $121,309.55 $77,246.60 $2,634,319.74 $44,062.95
11/1/2031 $121,309.55 $78,501.85 $2,555,817.89 $42,807.70
5/1/2032 $121,309.55 $79,777.51 $2,476,040.38 $41,532.04
11/1/2032 $121,309.55 $81,073.89 $2,394,966.49 $40,235.66
5/1/2033 $121,309.55 $82,391.34 $2,312,575.15 $38,918.21
11/1/2033 $121,309.55 $83,730.20 $2,228,844.95 $37,579.35
5/1/2034 $121,309.55 $85,090.82 $2,143,754.13 $36,218.73
11/1/2034 $121,309.55 $86,473.55 $2,057,280.58 $34,836.00
5/1/2035 $121,309.55 $87,878.74 $1,969,401.84 $33,430.81
11/1/2035 $121,309.55 $89,306.77 $1,880,095.07 $32,002.78
5/1/2036 $121,309.55 $90,758.01 $1,789,337.06 $30,551.54
11/1/2036 $121,309.55 $92,232.82 $1,697,104.24 $29,076.73
5/1/2037 $121,309.55 $93,731.61 $1,603,372.63 $27,577.94
11/1/2037 $121,309.55 $95,254.74 $1,508,117.89 $26,054.81
5/1/2038 $121,309.55 $96,802.63 $1,411,315.26 $24,506.92
11/1/2038 $121,309.55 $98,375.68 $1,312,939.58 $22,933.87
5/1/2039 $121,309.55 $99,974.28 $1,212,965.30 $21,335.27
11/1/2039 $121,309.55 $101,598.86 $1,111,366.44 $19,710.69
5/1/2040 $121,309.55 $103,249.85 $1,008,116.59 $18,059.70
11/1/2040 $121,309.55 $104,927.66 $903,188.93 $16,381.89
5/1/2041 $121,309.55 $106,632.73 $796,556.20 $14,676.82
11/1/2041 $121,309.55 $108,365.51 $688,190.69 $12,944.04
5/1/2042 $121,309.55 $110,126.45 $578,064.24 $11,183.10
11/1/2042 $121,309.55 $111,916.01 $466,148.23 $9,393.54
5/1/2043 $121,309.55 $113,734.64 $352,413.59 $7,574.91
11/1/2043 $121,309.55 $115,582.83 $236,830.76 $5,726.72
5/1/2044 $121,309.55 $117,461.05 $119,369.71 $3,848.50
11/1/2044 $121,309.47 $119,369.71 $0.00 $1,939.76
Total $4,761,657.65 $3,500,000.00 $1,261,657.65
C-1
LOAN REPAYMENT SCHEDULE
TOWN OF ESTES PARK, COLORADO, ACTING BY AND THROUGH ITS WATER ACTIVITY ENTERPRISE
Loan Number: #DBS25----
TOTAL REPAYABLE LOAN AMOUNT:
On or before the first of each date, commencing on May 1, 2025, the
Governmental Agency shall pay the amount set forth below:
EXHIBIT C
DRINKING WATER REVOLVING FUND
D-1
EXHIBIT D
GOVERNMENTAL AGENCY BOND
FOR VALUE RECEIVED, the undersigned TOWN OF ESTES PARK, COLORADO,
ACTING BY AND THROUGH ITS WATER ACTIVITY ENTERPRISE (the
Governmental Agency”), hereby promises to pay to the order of the COLORADO WATER
RESOURCES AND POWER DEVELOPMENT AUTHORITY (the "Authority") the
principal amount of Five Million and 00/100 Dollars ($5,000,000.00), less a One Million Five
Hundred Thousand and 00/100 Dollars ($1,500,000.00) reduction in the total principal of the
Loan due to the application of Bipartisan Infrastructure Law (“BIL”) Up-Front Principal
Forgiveness set forth in Exhibit B, Part (4)(a) of the Loan Agreement dated ____, 2025, by and
between the Authority and the Governmental Agency (the "Loan Agreement"), making the
Maximum Total Principal to be Repaid, after Application of Up-Front Principal Forgiveness,
Three Million Five Hundred Thousand and 00/100 Dollars ($3,500,000.00), as set forth in
Exhibit B, Part (4)(b) of the Loan Agreement, or such lesser amount as shall be loaned to the
Governmental Agency pursuant to the Loan Agreement, at the times and in the amounts
determined as provided in the Loan Agreement, at Three and One-Quarter percent (3.25%)
interest, subject to late charges on late payments as provided in Section 3.03 (b) of the Loan
Agreement, and payable on the dates and in the amounts determined as provided in the Loan
Agreement.
This Governmental Agency Bond is issued pursuant to the Loan Agreement and is issued in
consideration of the loan made thereunder (the "Loan") and to evidence the obligations of the
Governmental Agency set forth in Section 3.03 thereof. This Governmental Agency Bond is
subject to assignment or endorsement in accordance with the terms of the Loan Agreement. All
of the definitions, terms, conditions, and provisions of the Loan Agreement are, by this reference
thereto, incorporated herein as a part of this Governmental Agency Bond.
Pursuant to the Loan Agreement, disbursements to the Governmental Agency shall be made
in accordance with written instructions upon the receipt by the Authority of requisitions from the
Governmental Agency executed and delivered in accordance with the requirements set forth in
Section 3.02 of the Loan Agreement.
This Governmental Agency Bond is entitled to the benefits, and is subject to the conditions,
of the Loan Agreement. The obligations of the Governmental Agency to make the payments
required hereunder shall be absolute and unconditional without any defense or right of set-off,
counterclaim, or recoupment by reason of any default by the Authority under the Loan
Agreement, or under any other agreement between the Governmental Agency and the Authority,
or out of any indebtedness or liability at any time owing to the Governmental Agency by the
Authority, or for any other reason.
This Governmental Agency Bond is subject to optional prepayment under the terms and
conditions, and in the amounts, provided in Section 3.07 of the Loan Agreement. The obligation
of the Governmental Agency to make payments under the Loan Agreement and this
Governmental Agency Bond is payable solely from the Pledged Property, except for reserves
created in connection with the Loan.
D-2
This Governmental Agency Bond does not constitute a debt or an indebtedness of the
Governmental Agency or the Town of Estes Park, Colorado, within the meaning of any
constitutional or statutory limitation or provision, and shall not be considered or held to be a
general obligation of the Governmental Agency or the Town of Estes Park, Colorado. The
payment of this Governmental Agency Bond is not secured by an encumbrance, mortgage or
other pledge of property except for such property and moneys pledged for the payment of this
Governmental Agency Bond.
For the payment of this Governmental Agency Bond, the Governmental Agency shall
enforce the Rate Covenant set forth in Paragraph (1) of Exhibit F to the Loan Agreement, shall
promptly collect all revenues of the System, and shall take all necessary action to collect any
revenues that are in default.
If an “Event of Default” as defined in Section 5.01 of the Loan Agreement occurs, the
remedies on default set forth in Section 5.03 of the Loan Agreement shall be available to enforce
the obligations of the Governmental Agency that are evidenced by this Governmental Agency
Bond.
This Governmental Agency Bond is issued under the authority of and in full conformity with
the Constitution and laws of the State of Colorado, including without limitation, Article X,
Section 20 of the Constitution, Title 31, Article 35, Part 4, C.R.S.; Title 37, Article 45.1, C.R.S.;
certain provisions of Title 11, Article 57, Part 2, C.R.S. (the “Supplemental Public Securities
Act”), and pursuant to the Loan Agreement. Pursuant to §11-57-210, of the Supplemental Public
Securities Act, this recital is conclusive evidence of the validity and regularity of the issuance of
the Governmental Agency Bond after its delivery for value. Pursuant to §31-35-413, C.R.S., this
recital conclusively imparts full compliance with all the provisions of Title 31, Article 35, Part 4,
C.R.S., and this Governmental Agency Bond issued containing such recital is incontestable for
any cause whatsoever after its delivery for value.
IN WITNESS WHEREOF, the Governmental Agency has caused this Governmental Agency
Bond to be duly executed, sealed and delivered, as of this ___ day of __________ 2025.
SEAL)
TOWN OF ESTES PARK, COLORADO,
ACTING BY AND THROUGH ITS WATER
ACTIVITY ENTERPRISE
ATTEST:
By: _______________________________
Mayor
By: __________________________
Town Clerk
E-1-1
EXHIBIT E-1
OPINION OF GOVERNMENTAL AGENCY COUNSEL
LETTERHEAD OF COUNSEL TO GOVERNMENTAL AGENCY]
DATED : Closing Date]
Colorado Water Resources and
Power Development Authority
Gentlemen:
I am an attorney admitted to practice in the State of Colorado and I have acted as counsel to
the TOWN OF ESTES PARK, COLORADO, ACTING BY AND THROUGH ITS
WATER ACTIVITY ENTERPRISE (the "Governmental Agency"), which has entered into a
Loan Agreement (as hereinafter defined) with the COLORADO WATER RESOURCES AND
POWER DEVELOPMENT AUTHORITY (the "Authority"), and have acted as such in
connection with the authorization, execution and delivery by the Governmental Agency of the
Loan Agreement and Governmental Agency Bond (as hereinafter defined).
In so acting, I have examined the Constitution and laws of the State of Colorado and the
proceedings relating to organization of the Governmental Agency. I have also examined
originals, or copies certified or otherwise identified to my satisfaction, of the following:
a) the Loan Agreement, dated ___________ (the "Loan Agreement") by and between the
Authority and the Governmental Agency;
b) the proceedings of the governing body of the Governmental Agency relating to the
approval of the Loan Agreement and the execution, issuance and delivery thereof on behalf
of the Governmental Agency, and the authorization of the undertaking and completion of the
Project (as defined in the Loan Agreement);
c) the Governmental Agency Bond, dated _____________ (the "Governmental Agency
Bond") issued by the Governmental Agency to the Authority to evidence the Loan (as
defined in the Loan Agreement;
d) the proceedings of the governing body of the Governmental Agency relating to the
issuance of the Governmental Agency Bond and the execution, issuance and delivery thereof
to the Authority (the Loan Agreement and the Governmental Agency Bond are referred to
herein collectively as the "Loan Documents"); and
e) all outstanding instruments relating to the bonds, notes or other indebtedness of or
relating to the Governmental Agency.
E-1-2
I have also examined and relied upon originals, or copies certified or otherwise authenticated
to my satisfaction, of such other records, documents, certificates and other instruments, and
made such investigation of law as in my judgment I have deemed necessary or appropriate to
enable me to render the opinions expressed below.
For the purpose of this opinion, I have assumed, without relying upon any representations
from the Authority, that funds to be provided for Principal Forgiveness (as defined in the Loan
Agreement), whether provided directly from the Federal State Revolving Fund Capitalization
grant (less State of Colorado matching funds), from funds received under the Infrastructure
Investment and Jobs Act of 2021, also known as the Bipartisan Infrastructure Law (BIL), or from
re-loan funds (Federal State Revolving Fund Capitalization grant funds previously loaned to
governmental agencies for purposes of a project and then repaid under the terms of a loan
agreement with the Authority), are Federal Funds.
Based upon the foregoing, I am of the opinion that:
1) The Governmental Agency is a "governmental agency" within the meaning of the
Authority's enabling legislation and is a water activity enterprise with the full legal right and
authority to execute the Loan Documents.
2) The Governmental Agency has the full legal right and authority to carry on the business
of the System (as defined in the Loan Agreement) as currently being conducted and as
proposed to be conducted, and to undertake and complete the Project.
3) The proceedings of the Governmental Agency's governing body authorizing the
Governmental Agency to undertake and complete the Project were duly and lawfully adopted
and approved in accordance with applicable Colorado law at meetings duly called pursuant to
necessary public notice and held in accordance with applicable Colorado law at which
quorums were present and acting throughout and were published in accordance with
applicable Colorado law.
4) The proceedings of the Governmental Agency's governing body approving the Loan
Documents and authorizing their execution, issuance and delivery on behalf of the
Governmental Agency were duly and lawfully adopted and approved in accordance with
applicable Colorado law, at meetings duly called pursuant to necessary public notice and held
in accordance with applicable Colorado law at which quorums were present and acting
throughout and were published in accordance with applicable Colorado law.
5) To the best of my knowledge, after such investigation as I have deemed appropriate, the
authorization, execution and delivery of the Loan Documents by the Governmental Agency,
the observation and performance by the Governmental Agency of its duties, covenants,
obligations and agreements thereunder and the consummation of the transactions
contemplated therein and the undertaking and completion of Project do not and will not con-
travene any existing law or any existing order, injunction, judgment, decree, rule or
regulation of any court or governmental or administrative agency, authority or person having
jurisdiction over the Governmental Agency or its property or assets or result in a breach or
violation of any of the terms and provisions of, or constitute a default under, any existing
bond resolution, trust agreement, indenture, mortgage, deed of trust, ordinance, order, or
E-1-3
other agreement to which the Governmental Agency is a party or by which it, the System, or
its property or assets is bound.
6) To the best of my knowledge, after such investigation as I have deemed appropriate, all
approvals, consents or authorizations of, or registrations of or filings with, any governmental
or public agency, authority or person required to date on the part of the Governmental
Agency in connection with the authorization, execution, delivery and performance of the
Loan Documents and the undertaking and completion of the Project, other than licenses and
permits relating to the construction and acquisition of the Project which I expect the
Governmental Agency to receive in the ordinary course of business, have been obtained or
made.
7) To the best of my knowledge, after such investigation as I have deemed appropriate,
except as disclosed in writing to the Authority, there is no litigation or other proceeding
pending or threatened in any court or other tribunal of competent jurisdiction (either State or
Federal) that (1) questions the creation, organization or existence of the Governmental
Agency; or the validity, legality or enforceability of the Loan Documents; or the undertaking
or completion of the Project; or (2) if adversely determined, could (a) materially adversely
affect (i) the financial position of the Governmental Agency; (ii) the ability of the
Governmental Agency to perform its obligations under the Loan Documents; (iii) the security
for the Loan Documents; or (iv) the transactions contemplated by the Loan Documents; or
b) impair the ability of the Governmental Agency to maintain and operate its system.
This opinion is rendered on the basis of Federal law and the laws of the State of Colorado as
enacted and construed on the date hereof. I express no opinion as to any matter not set forth in
the numbered paragraphs herein.
I hereby authorize Carlson, Hammond, & Paddock, L.L.C., General Counsel to the
Authority, to rely on this opinion as if I had addressed this opinion to them in addition to you.
Very truly yours,
E-2-1
EXHIBIT E-2
OPINION OF GOVERNMENTAL AGENCY BOND COUNSEL
LETTERHEAD OF BOND COUNSEL TO GOVERNMENTAL AGENCY]
DATED: Closing Date]
Colorado Water Resources and
Power Development Authority
Gentlemen:
We are attorneys admitted to practice in the State of Colorado and we have acted as bond
counsel for the TOWN OF ESTES PARK, COLORADO, ACTING BY AND THROUGH
ITS WATER ACTIVITY ENTERPRISE (the "Governmental Agency"), which has entered
into a Loan Agreement (as hereinafter defined) with the COLORADO WATER RESOUR-
CES AND POWER DEVELOPMENT AUTHORITY (the "Authority"), and have acted as
such in connection with the authorization, execution, and delivery by the Governmental Agency
of the Loan Agreement and Governmental Agency Bond (as hereinafter defined).
In so acting we have examined the Constitution and laws of the State of Colorado that we
deemed relevant and the proceedings relating to organization of the Governmental Agency. We
have also examined originals, or copies certified or otherwise identified to our satisfaction, of the
following:
a) the Loan Agreement, dated _____________ (the "Loan Agreement"), by and between the
Authority and the Governmental Agency;
b) the proceedings of the governing body of the Governmental Agency relating to the
approval of the Loan Agreement, and the execution and delivery thereof by the Govern-
mental Agency;
c) the Governmental Agency Bond, dated _____________ (the "Governmental Agency
Bond"), issued by the Governmental Agency to the Authority to evidence the Loan (as
defined in the Loan Agreement);
d) the proceedings of the governing body of the Governmental Agency relating to the
issuance of the Governmental Agency Bond, and the execution, issuance, and delivery
thereof to the Authority (the Loan Agreement and the Governmental Agency Bond are
referred to herein collectively as the "Loan Documents"); and
e) all outstanding instruments relating to the bonds, notes, or other indebtedness of, or
relating to the Governmental Agency of which we were made aware after reasonable inquiry.
E-2-2
We have also examined and relied upon originals, or copies certified or otherwise
authenticated to our satisfaction, of such other records, documents, certificates, and other
instruments, and made such investigation of law as in our judgment we have deemed necessary
or appropriate to enable us to render the opinions expressed below. As to questions of fact
material to our opinions, we have relied upon the proceedings and other certifications of public
officials furnished to us, without undertaking to verify the same by independent investigation.
For the purpose of this opinion, we have assumed, without relying upon any representation of the
Authority, that funds to be provided for Principal Forgiveness (as defined in the Loan
Agreement), whether provided directly from the Federal State Revolving Fund Capitalization
grant (less State of Colorado matching funds), from funds received under the Infrastructure
Investment and Jobs Act of 2021, also known as the Bipartisan Infrastructure Law (BIL), or from
re-loan funds (Federal State Revolving Fund Capitalization grant funds previously loaned to
governmental agencies for purposes of a project and then repaid under the terms of a loan
agreement with the Authority), are Federal funds.
Based upon the foregoing, we are of the opinion, as of the date hereof and under existing law,
that:
1) The Governmental Agency is a "governmental agency" within the meaning of the
Authority's enabling legislation.
2) The Governmental Agency has full legal right and authority to execute the Loan
Documents and the Governmental Agency has full legal right and authority to observe and
perform its respective duties, covenants, obligations, and agreements thereunder; subject,
however, to the effect of, and to restrictions and limitations imposed by or resulting from,
bankruptcy, insolvency, moratorium, reorganization, debt adjustment, or other similar laws
affecting creditors' rights generally (collectively, “Creditor's Rights Limitations”), heretofore
or hereafter enacted or other laws, judicial decisions and principles of equity relating to the
enforcement of contractual obligations generally.
3) The Governmental Agency has pledged the Pledged Property described in Paragraph (3)
of Exhibit A to the Loan Agreement for the punctual payment of the principal on the Loan
and all other amounts due under the Loan Documents according to their respective terms, and
the Authority has a first lien on such Pledged Property, but not an exclusive first lien. No
filings or recordings are required under the Colorado Uniform Commercial Code in order to
provide a first lien on such Pledged Property, and all actions have been taken as required
under Colorado law to insure the priority, validity, and enforceability of such lien.
4) The Loan Documents have been duly authorized, executed, and delivered by the
authorized officers of the Governmental Agency; and, assuming in the case of the Loan
Agreement, that the Authority has all the requisite power and authority to authorize, execute
and deliver, and has duly authorized, executed, and delivered, the Loan Agreement, the Loan
Documents constitute the legal, valid, and binding obligations of the Governmental Agency
enforceable in accordance with their respective terms; subject, however, to the effect of, and
to restrictions and limitations imposed by, or resulting from, Creditor's Rights Limitations or
other laws, judicial decisions, and principles of equity relating to the enforcement of
contractual obligations generally, provided that no opinion is expressed herein regarding the
validity or enforceability of Section 3.06 of the Loan Agreement or any other provision
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thereof that purports to require the Governmental Agency to indemnify or hold any party
harmless.
5) To the best of our knowledge, after such investigation as we have deemed appropriate,
the authorization, execution, and delivery of the Loan Documents by the Governmental
Agency, the observance and performance by the Governmental Agency of its duties,
covenants, obligations, and agreements thereunder, and the consummation of the transactions
contemplated therein, do not and will not contravene any existing law, or result in a breach or
violation of any of the terms and provisions of, or constitute a default under, any outstanding
instruments relating to the bonds, notes, or other indebtedness of, or relating to, the
Governmental Agency.
6) To the best of our knowledge, after such investigation as we deemed appropriate, all
approvals, consents, or authorizations of, or registrations of or filings with, any governmental
or public agency, authority, or person required to date on the part of the Governmental
Agency in connection with the authorization, execution, delivery, and performance of the
Loan Documents have been obtained or made.
7) The execution and delivery of the Loan Documents are not subject to the limitations of
Article X, Section 20 of the Colorado Constitution, since the Governmental Agency, as of the
date hereof, constitutes an enterprise under said Article X, Section 20. The performance of
the obligations of the Governmental Agency under the Loan Documents is not subject to the
limitations of said Article X, Section 20, as long as the Governmental Agency continues to
qualify as an enterprise under said Article X, Section 20. If the Governmental Agency ceases
to be an enterprise under said Article X, Section 20, during the Loan Term (as defined in the
Loan Agreement), the Loan Documents will continue to constitute legal, valid and binding
obligations of the Governmental Agency enforceable in accordance with their respective
terms; subject, however, to (a) Creditor's Rights Limitations or other laws, judicial decisions
and principles of equity relating to the enforcement of contractual obligations generally and
b) subject to the next sentence, the revenue and spending limitations of said Article X,
Section 20. If the Governmental Agency at any time ceases to be an enterprise under said
Article X, Section 20, (i) the Governmental Agency may continue to impose and increase
fees, rates and charges without voter approval; (ii) all revenues of the Governmental Agency
used to pay Loan Repayments (as defined in the Loan Agreement) will be included in the
Governmental Agency’s fiscal year spending limit under Section 7(d) of said Article X,
Section 20, except that debt service changes and reductions are exceptions to, and not part of,
the Governmental Agency’s revenue and spending base and limits; and (iii) if the
Governmental Agency is required to reduce spending in order to comply with its fiscal year
spending limit under Section 7(b) of said Article X, Section 20, the Governmental Agency
will first be required to reduce spending for purposes for which it does not have an obligation
under law or by contract prior to reducing spending required to comply with the other
covenants contained in the Loan Documents.
The opinions set forth in paragraphs numbered 2, 4 and 5 above are further qualified and
limited to the extent that we express no opinion as to the authority of the Governmental Agency
to agree to perform, or as to the enforceability of, the following provisions of the Loan
Agreement and of the Governmental Agency Bond (to the extent such provisions of the Loan
Agreement are incorporated in the Governmental Agency Bond):
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a) Section 2.02(o) to the extent it purports to waive sovereign immunity;
b) Section 3.05 to the extent that it provides that the Loan Agreement is
enforceable despite the failure of consideration;
c) Section 3.06 or any other provision of the Loan Agreement to the extent
that it requires the Governmental Agency to indemnify or hold harmless
the Authority or any other person; and
d) Section 5.03 or any other provision of the Loan Agreement to the extent
that the Authority is allowed to accelerate the obligations of the
Governmental Agency upon an Event of Default (as defined in the Loan
Agreement).
In addition, the enforceability of the Loan Agreement and the Governmental Agency Bond is
subject to judicial discretion, to the exercise by the State of Colorado and its governmental
bodies of the police power inherent in the sovereignty of the State, and to the exercise by the
United States of America of the powers delegated to it by the Constitution of the United States of
America.
This opinion is rendered on the basis of the laws of the State of Colorado as enacted and
construed on the date hereof. We express no opinion as to any matter not set forth in the
numbered paragraphs herein. In addition, we express no opinion as to the compliance by the
Town of Estes Park or the Governmental Agency with existing laws and regulations governing
the bidding, construction or operation of the Project (as defined in the Loan Agreement) or the
sufficiency of the Pledged Property for payment of the Loan.
We hereby authorize Carlson, Hammond & Paddock, L.L.C., General Counsel to the
Authority, to rely on this opinion as if we had addressed this opinion to them in addition to you.
Very truly yours,
F-1
EXHIBIT F
ADDITIONAL COVENANTS AND REQUIREMENTS
1) Rate Covenant.
The Governmental Agency shall establish and collect such rates, fees, and charges for the
use or the sale of the products and services of the System as, together with other moneys
available therefor, are expected to produce Gross Revenue (as defined in Paragraph (3) of
Exhibit A to this Loan Agreement) for each calendar year that will be at least sufficient
for such calendar year to pay the sum of:
a) all amounts estimated to be required to pay Operation and Maintenance Expenses
as defined in Paragraph (3) of Exhibit A of this Loan Agreement) during such
calendar year;
b) a sum equal to 110% of the debt service due on the Governmental Agency Bond
for such calendar year and debt service coming due during such calendar year on any
obligations secured by a lien on the Pledged Property which lien is on a parity with
the lien of this Loan Agreement on the Pledged Property, in each case computed as of
the beginning of such calendar year;
c) the amount, if any, to be paid during such calendar year into any debt service
reserve account in connection with any obligations secured by a lien on the Pledged
Property which lien is on a parity with the lien of this Loan Agreement on the
Pledged Property;
d) a sum equal to the debt service on any obligations secured by a lien on the
Pledged Property which lien is subordinate to the lien of this Loan Agreement on the
Pledged Property for such calendar year computed as of the beginning of such
calendar year; and
e) amounts necessary to pay and discharge all charges and liens or other
indebtedness not described above payable out of the Gross Revenue during such
calendar year.
2) Rate Study.
In the event that Gross Revenue collected during a fiscal year is not sufficient to meet the
requirements set forth in the Rate Covenant contained in Paragraph (1) of this Exhibit F to this
Loan Agreement, the Governmental Agency shall, within 90 days of the end of such fiscal year,
cause an independent firm of accountants or consulting engineers, to prepare a rate study for the
purpose of recommending a schedule of rates, fees, and charges for the use of the System that, in
the opinion of the firm conducting the study, will be sufficient to provide Gross Revenue to be
collected in the next succeeding fiscal year that will provide compliance with the Rate Covenant
described in Paragraph (1) of this Exhibit F to this Loan Agreement. Such a study shall be
F-2
delivered to the Authority. The Governmental Agency shall within six months of receipt of such
study, adopt rates, fees, and charges for the use of the System, based upon the recommendations
contained in such study, that provide compliance with said Rate Covenant. Notwithstanding the
foregoing, the Authority may, from time to time, in its sole and absolute discretion and pursuant
to such terms and restrictions it may specify, waive in writing the requirement that a rate study
be performed by the Governmental Agency.
3) Additional Bonds.
a) Senior Lien Bonds. The Governmental Agency covenants that it will not issue any
obligations payable out of, or secured by a lien or charge on, the Pledged Property that is
superior to the lien or charge of this Loan Agreement on the Pledged Property.
b) Parity Lien Bonds. The Governmental Agency covenants that it will not issue any
obligations payable out of, or secured by a lien or charge on, the Pledged Property that is on a
parity with the lien or charge of this Loan Agreement on the Pledged Property, unless the
Governmental Agency certifies to the Authority that Net Revenue (as defined in Paragraph (3) of
Exhibit A to this Loan Agreement) for any 12 consecutive months out of the 18 months
preceding the month in which such obligations are to be issued was at least equal to the sum of
a) 110% of the maximum annual debt service due in any one year on (i) this Loan Agreement
and (ii) all other outstanding obligations of the Governmental Agency payable out of, or secured
by a lien or charge on, the Pledged Property that is on a parity with the lien or charge of this
Loan Agreement on the Pledged Property, and (iii) such proposed obligations to be issued, and
b) the maximum annual debt service due in any one year on all obligations payable out of, or
secured by a lien or charge on, the Pledged Property that is subordinate to the lien or charge of
this Loan Agreement on the Pledged Property.
c) Subordinate Lien Bonds. The Governmental Agency covenants that it will not
issue any obligations payable out of, or secured by a lien or charge on, the Pledged Property that
is subordinate to the lien or charge of this Loan Agreement on the Pledged Property, unless the
Governmental Agency certifies to the Authority that, for any 12 consecutive months out of the
18 months preceding the month in which such obligations are to be issued, Net Revenue (as
defined in Paragraph (3) of Exhibit A to this Loan Agreement) was at least 100% of the
maximum annual debt service due in any one year on (a) all obligations outstanding during such
period that are payable out of, or secured by a lien or charge on, the Pledged Property and (b)
such proposed obligations to be issued.
d) Net Revenue Adjustment. In calculating revenue coverage for purposes of the
issuance of additional parity or subordinate lien bonds, the Governmental Agency may adjust
Net Revenue to reflect any rate increases adopted in connection with the issuance of additional
obligations by adding to the actual Net Revenue for the period examined an estimated sum equal
to 100% of the estimated increase in Net Revenue that would have been realized during such
period had the adopted rate increase been in effect during all of such period.
F-3
e) Refunding Bonds. Notwithstanding the foregoing, the Governmental Agency may
issue refunding obligations payable out of, or secured by a lien or charge on, the Pledged
Property, without compliance with the requirements stated above, provided that the debt service
payments on such refunding obligations do not exceed the debt service payments on the refunded
obligations during any calendar year.
4) Lien Representation. The Governmental Agency has disclosed the following bonds,
notes or other evidence of indebtedness of the Governmental Agency issued, or contractual
obligations incurred, having a lien on the Pledged Property, or a portion thereof, of equal rank
with the lien and charge on the Pledged Property of the Governmental Agency Bond:
5,494,410.09 Town of Estes Park, Colorado, acting by and through its Water Activity
Enterprise, Governmental Agency Bond dated June 12, 2008, issued to the Colorado Water
Resources and Power Development Authority; $658,000.00 Town of Estes Park, Colorado,
acting by and through its Water Activity Enterprise, Water Revenue Bond, Series 2020, dated
July 15, 2020, issued to the United States of America acting through the Department of
Agriculture, and payable solely from a Capital Cost Fee to be paid monthly per lot by the users
of the Town’s water distribution system in the Park Entrance Estates neighborhood, which Fee is
to be deposited in a separate Bond Account established under the issuing Ordinance No. 02-20;
and $4,493,000.00 Town of Estes Park, Colorado, acting by and through its Water Activity
Enterprise, Construction Loan Note (Prospect Mountain Water Distribution Project, Series
2022A, dated October 11, 2022, issued to CoBank, ACB,, and payable from the Net Revenues
as defined in the Construction Loan Agreement dated October 11, 2022, between the Town of
Estes Park, Colorado, acting by and through its Water Activity Enterprise, and CoBank,
ACB,(collectively, the “Parity Lien Obligations”). The Pledged Property is free and clear of any
pledge, lien, charge, or encumbrance thereon, or with respect thereto, other than that of the Parity
Lien Obligations, that is of equal rank with the obligation of the Governmental Agency Bond.
Further, the Pledged Property is free and clear of any pledge, lien, charge, or encumbrance
thereon, or with respect thereto, that is prior to the obligation of the Governmental Agency Bond.
5) Operation and Maintenance Reserve Fund. The Governmental Agency shall maintain
an operation and maintenance reserve in an amount equal to three months of operation and
maintenance expenses, excluding depreciation, of the System as set forth in the annual budget for
the current fiscal year. Said reserve may be in the form of unobligated fund balances, or other
unobligated cash or securities (i.e. capital reserves), or may be in a separate segregated fund and
shall be maintained as a continuing reserve for payment of any lawful purpose relating to the
System. If the operation and maintenance reserve falls below this requirement, the shortfall shall
be made up in 24 substantially equal monthly installments beginning the second month after such
shortfall.
6) Davis Bacon & Related Acts (DBRA). The Governmental Agency will comply with
the requirements of the Davis Bacon & Related Acts, codified at 40 U.S.C. §§ 3140 through
3148.
F-4
7) Cost Overruns. Any cost overruns associated with the Project will be the responsibility
of the Governmental Agency and any additional costs to defend against contract claims will not
be reimbursed through this or any future funding.
8) Audit Requirements. For each year in which the Governmental Agency requests a
disbursement from the Project Loan Subaccount, the Governmental Agency shall conduct its
annual audit in accordance with the federal Single Audit Act, 31 U.S.C. 7501 et seq.
9) American Iron and Steel Requirement. The Governmental Agency will comply with
all federal requirements applicable to the Loan, including Section 436 of P.L. 113-76,
Consolidated Appropriations Act, 2014, (the “Appropriations Act”) and related State Revolving
Fund Policy Guidelines, which require that all of the iron and steel products (as defined in the
Appropriations Act and Guidelines) used in the Project must be produced in the United States
unless the Governmental Agency has requested and received a waiver from the requirement
pursuant to the “waiver process” described in the Appropriations Act and Guidelines.
10) Construction Schedule.
The Governmental Agency has provided the following estimated dates regarding the project:
a) Advertisement for Bids Publication Date: January 30, 2025
b) Construction Contract Award Date: April 9, 2025
c) Construction Start Date: April 28, 2025
d) Construction Completion Date: November 20, 2026
11) Technical Managerial and Financial Capacity Requirement. As described in the
Technical/Managerial/Financial (TMF) Capacity Evaluation Report dated August 6, 2024, there
are no mandatory requirements.
12) Build America, Buy America Act. The Governmental Agency will comply with the
requirements of the Build America Buy America Act, enacted as part of the Bipartisan
Infrastructure Law, including guidance for implementing the BABA Act provided by the Office
of Management and Budget, where applicable. BABA establishes domestic content procurement
preference requirements for federal financial assistance provided through the Clean Water and
Drinking Water State Revolving Funds including that iron, steel, manufactured products, and
construction materials used in covered projects are produced in the United States unless the
Governmental Agency has requested and received a waiver from the federal government.
13) Bipartisan Infrastructure Law. The Governmental Agency will comply with all federal
requirements applicable to the Bipartisan Infrastructure Law (the Infrastructure Investment and
Jobs Act) (Public Law 117-58) and related regulations and guidance, during the Loan Term.
G-1
EXHIBIT G
DWRF Form of Requisition
TOWN OF ESTES PARK, COLORADO, ACTING BY AND THROUGH ITS WATER
ACTIVITY ENTERPRISE (the “Governmental Agency”)
Please submit to the following addresses:
Submit Online To:
https://ceos.colorado.gov/CO/CEOS/Public/Client/CO_CIMPLE/Shared/Pages/Main/Login.aspx
If there are any questions or technical issues, please submit your backup document via one of the methods
below.
Email To: cdphe_grantsandloans@state.co.us (preferred backup method)
Or Mail To: Colorado Department of Public Health and Environment
Grants and Loans Unit WQCD-OA-B2
Attn: Project Manager
4300 Cherry Creek Drive South
Denver, Colorado 80246-1530
Or Fax To: 303-782-0390 (Call CDPHE Project Manager to confirm delivery)
Cc: CDPHE Project Manager
Cc: E-mail requisition form (Exhibit G) to the Colorado Water Resources and Power
Development Authority at requisitions@cwrpda.com
This requisition is made in accordance with Section 3.02 of the Loan Agreement executed by the
Colorado Water Resources and Power Development Authority on __________, 2025. Terms defined in
the Loan Agreement and not otherwise defined herein shall have the same meanings when used herein.
The Governmental Agency hereby states as follows:
1. This is Requisition No____________________________________________.
2. The amount requisitioned hereunder is_____________________________.
3. The person, firm or corporation to whom the amount requisitioned is due, or to whom a
reimbursable advance has been made, is ______________________.
4. The payee of the requisitioned amount is___________________________.
5. The manner of payment to the payee is to be wire transferred to:
Bank:
ABA No.:
Account No.:
Account Name:
Contact:
G-2
6. Attached hereto is the appropriate documentation demonstrating that the amount requisitioned
hereunder is currently due or has been advanced by the Governmental Agency.
7. The amount hereby requisitioned is a proper Cost of the Project to be paid only from amounts
deposited in the Project Loan Account established for the Governmental Agency in the Drinking
Water Revolving Fund.
8. On the date hereof, there does not exist any Event of Default under the Loan Agreement nor any
condition which, with the passage of time or the giving of notice, or both, would constitute an
Event of Default thereunder.
9. Estimate of total project completion percentage: __________________%
10. The undersigned is an Authorized Officer of the Governmental Agency duly authorized in
the Loan Agreement to submit the Requisition.
11. The Governmental Agency reaffirms that all representations made by it in the Loan Agreement
are true and accurate as of the date of this requisition, and that it shall continue to observe and
perform all of its duties, covenants, obligations and agreements thereunder, at all times during the
entire term of said Loan Agreement.
Dated: __________________.
TOWN OF ESTES PARK, COLORADO, ACTING BY AND THROUGH ITS
WATER ACTIVITY ENTERPRISE
By: ___________________________.
Title: _________________________& Authorized Officer
Print Name:____________________
You should receive all payments no later than 10 working days after receipt of requisition unless
otherwise notified.
1. The undersigned approves the disbursement of the requisitioned amount from the Project Loan
Account established in the Drinking Water Revolving Fund.
COLORADO WATER RESOURCES AND POWER DEVELOPMENT
AUTHORITY
By: ________________________________
Finance Director
Dated: _____________________________
For Colorado Department of Public Health and Environment, Water Quality Control Division
purposes only:
Payment approved by: ___________________________
Dated: _______________________________________
Carriage Hills and Spruce Knob
SRF Loan Agreement
Town Board Meeting
February 25, 2025
Agenda
ඵ Project Overview
ඵ Reason for the Project
ඵ SRF and BIL Program
ඵ Funding and Financial Strategy
ඵ Schedule
Project Overview
Carriage Hills – Phase 1
80 service connections
Interconnections and pressure breaks
5,900 LF of 8” ductile iron pipe
20 fire hydrants
Asphalt and unpaved road repair
Spruce Knob
12 service connections into the homes
1,310 LF of 12” ductile iron pipe
3 new fire hydrants
Unpaved road repair
The Spruce Knob portion becomes part of a larger
Mall Road Waterline Looping Project
(Base Bid & Additive Alternates)
(Joel Estes Drive)
Reason for the Project
Reduce O&M by replacing old pipes
Bring systems to current standards
Improve water quality and pressure
Improve fire protection
Interconnections for system improvements
Reduce water service interruptions and water
loss
Spruce Knob offers opportunity to access other
funding sources
SRF and BIL Program Overview
SRF = State Revolving Fund
BIL = Bipartisan Infrastructure Law
Offers loans with very low interest rates
Funds are capitalized by federal and state
contributions.
$1 Federal SRF $0.20 State
Leverage funds to increase available
capital for loans by issuing municipal
bonds
Funds are invested in investment grade
securities that are pledged to bondholders
as additional collateral
Source: CDPHE
Water Quality Control Division of the
Colorado Department of Public
Health and Environment
Department of Local AffairsColorado Water Resources and
Power Development Authority
Source: CDPHE Website
Source: CDPHE Website
Source: CDPHE Website
Source: CDPHE Website
Source: CDPHE Website
Funding and Financial Strategy
ඵ Project Costs ($8.3M)
ඵ Fundingg
Drinking Water Revolving Fund Base and BIL Loan $3.5M
BIL Principal Forgiveness (up-front) $1.5M
2024 EIAF (DOLA) Grant $1.0M
Subtotal Provided Funding $6.0M
Water Fund $2.3M
Project Total $8.3M
Requested Loan (BIL and SRF) $3.5M
SRF Loan Duration, years 20
Interest Rate 3.25%
Debt Service, annual $239,263
Our Loan
We are obligated to:
Get State approval of bid package prior to
advertisement
Start construction within 12 months of loan closing
Provide annual audit proving we meet loan covenants
Conduct single audit
Meet other bond obligations.
$5,494,410 dated June 12, 2008, issued by CWRPDA
$658,000 dated July 15, 2020, issued by USDA-RD for
Park Entrance Estates
$4,493,000 dated October 11, 2022, issued to CoBank
for Prospect Mountain
Proposed Schedule
Project Element
CDPHE Approval then Advertise for Bids February/March 2025
Finding of No Significant Impact February/March 2025
Loan Closing March/April 2025
Award Construction Contract April/May 2025
Start Construction May/June 2025
Complete Spruce Knob Portion August/September 2025
Complete Construction November 2026
Questions
and
Discussion?
TOWN CLERK’S OFFICE Memo
To: Honorable Mayor Hall
Board of Trustees
Through: Town Administrator Machalek
From: Jackie Williamson, Town Clerk
Date: February 25, 2025
RE: Interview Committee for the Estes Park Housing Authority Board of
Commissioners
(Mark all that apply)
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER Committee
QUASI-JUDICIAL YES NO
Objective:
To appoint Town Board Members to the interview committee for the vacancy on the
Estes Park Housing Authority Board of Commissioners.
Present Situation:
The Estes Park Housing Authority Board of Commissioners consists of seven-members
and currently has one vacancy. The current open position must be filled by an individual
currently receiving benefits from the Housing Authority as required by the CRS 29-4-
205. The Town Clerk’s Office has advertised the opening which is scheduled to close on
March 3, 2025 and has received 1 application as of the date this memo was prepared.
An update on the number of applications will be provided at the Board meeting.
Proposal:
Policy 101 Section 6 states all applicants for Town Committees/Boards are to be
interviewed by the Town Board, or its designee. Any designee will be appointed by the
Town Board. Therefore, two members of the Board would interview all interested
applicants for the board position.
Advantages:
To move the process forward and allow interviews to be conducted of interested
applicants following the closing of the posted position.
Disadvantages:
None.
Action Recommended:
To appoint two Town Board members to the interview committee.
Finance/Resource Impact:
None.
Level of Public Interest
Low.
Sample Motion:
I move to approve/deny the appointment of Trustees __________ and ___________ to
the Estes Park Housing Authority Board of Commissioners interview committee.
Attachments:
None.