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HomeMy WebLinkAboutPACKET Town Board 2019-09-24The 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. The Town of Estes Park will make reasonable accommodations for access to Town services, programs, and activities and special communication arrangements for persons with disabilities. Please call (970) 577-4777. TDD available. BOARD OF TRUSTEES - TOWN OF ESTES PARK Tuesday, September 24, 2019 7:00 p.m. 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. 1. POLICY GOVERNANCE MONITORING REPORT - POLICY 3.8. Policy 2.3 establishing reporting requirements for the Town Administrator under Policy Governance. Policy 3.8 is reported on each September. CONSENT AGENDA: 1. Bills. 2. Town Board Minutes dated September 10, 2019 and Town Board Study Session Minutes dated September 10, 2019. 3. Estes Valley Planning Commission Minutes dated August 20, 2019 and Estes Valley Planning Commission Study Session Minutes dated August 20, 2019 (acknowledgment only). 4. Agreement with JVA Consulting Engineers for Engineering Services for Prospect Mountain Water Distribution system upgrades. 5. Clarification of Town Prosecutor Reporting to Town Attorney. 6. Revised Board Policy 101, Division of Responsibilities. 7. Intergovernmental Agreement with CDOT for Congestion Mitigation and Air Quality Grant Funding for construction of Intersection Improvements on US36 & Community Drive. 8. Acceptance of Town Administrator Policy Governance Monitoring Report. 9. Parks Advisory Board Minutes dated August 15, 2019 (acknowledgement only). 10. Transportation Advisory Board Minutes dated August 15, 2019 (acknowledgement only). REPORTS AND DISCUSSION ITEMS: (Outside Entities). 1. ESTES PARK HIGH SCHOOL MONTE VERDE SCIENCE EXCHANGE. Prepared 09-13-2019 *Revised 09-20-2019 * * 1 1 NOTE: The Town Board reserves the right to consider other appropriate items not available at the time the agenda was prepared. PLANNING COMMISSION ITEMS: Items reviewed by Planning Commission or staff for Town Board Final Action. 1. CONSENT ITEMS: A. PRELIMINARY CONDOMINIUM MAP, THE DIVIDE CONDOMINIUMS AT WILDFIRE, WILDFIRE ROAD, WESTOVER CONSTRUCTION, INC., RDA ASSOCIATES LLC, APPLICANTS. Applicant request to continue item to October 8, 2019. B. PRELIMINARY CONDOMINIUM MAP, THE MEADOW CONDOMINIUMS AT WILDFIRE, WILDFIRE ROAD, WESTOVER CONSTRUCTION, INC., RDA ASSOCIATES, LLC, APPLICANTS. Applicant request to continue item to October 8, 2019. * Board action required to continue Consent Items 1.A and 1.B to October 8, 2019. ACTION ITEMS: 1. ORDINANCE 24-19 AUTHORIZING ISSUANCE OF THE SERIES 2019 POWER AND COMMUNICATIONS REVENUE BONDS. Director Hudson. Authorizes issuance of Power & Communications Revenue Bonds to finance refunding of the 2007 outstanding Light & Power Revenue Bonds and funds completion of the smart grid and broadband system. 2. ORDINANCE 25-19 ADOPTING TITLE 18 OF THE ESTES PARK MUNICIPAL CODE RELATING TO FLOOD DAMAGE PREVENTION. Manager Hook. Existing Floodplain Regulations in Chapter 17.28 of the Estes Park Municipal Code are deleted and replaced with the new Title 18 model regulations received from the Colorado Water Conservation Board. 3. ORDINANCE 26-19 APPROVING THE GROUND LEASE AGREEMENT WITH ESTES PARK R-3 SCHOOL DISTRICT FOR CAREER AND TECHNICAL EDUCATION (CTE) BUILDING. Item to be considered at the October 8, 2019 meeting. (No action required). 4. FEE SUBSIDY REQUEST, TOWN UTILITIES, 380 COMMUNITY DRIVE, ESTES PARK HIGH SCHOOL CTE BUILDING. Director Bergsten and Coordinator Rusch. The Estes Park High School requests Town utility fee subsidies for its new (CTE) building. Total Town utility fees are estimated at $83,898. 5. ORDINANCE 27-19 AMENDING §2.04.060 OF THE ESTES PARK MUNICIPAL CODE TO ALLOW REMOTE PARTICIPATION BY TRUSTEES IN MEETINGS OF THE BOARD. Town Clerk Williamson. REPORTS AND DISCUSSION ITEMS: 1. REVIEW OF DRAFT IGA OPTIONS FOR THE JOINT TOWN BOARD/COUNTY COMMISSION MEETING ON SEPTEMBER 30, 2019. Director Hunt. Discussion of current and potential future Intergovernmental Agreement (IGA) options for the Town and County regarding land-use policy and regulations. ADJOURN. * * 2 2 Town Administrator’s Office Memo To: Honorable Mayor Jirsa Board of Trustees From: Town Administrator Machalek Date: September 24, 2019 RE: Policy Governance Monitoring Internal Report – Policy 3.8 (Mark all that apply) PUBLIC HEARING ORDINANCE LAND USE CONTRACT/AGREEMENT RESOLUTION OTHER: PG Report QUASI-JUDICIAL YES NO Board Policy 2.3 establishes specific reporting requirements for the Town Administrator to provide information on policy compliance to the Board. Reporting on Policy 3.8 – Compensation and Benefits is required annually in September. Policy 3.8 states: “With respect to employment, compensation, and benefits to employees, consultants, contract workers and volunteers, the Town Administrator shall not cause or allow jeopardy to fiscal integrity.” This report constitutes my assurance that, as reasonably interpreted, these conditions have not occurred and, further, that the data submitted below are accurate as of this date. Travis Machalek Town Administrator 3 3 Policy 3.8: With respect to employment, compensation, and benefits to employees, consultants, contract workers and volunteers, the Town Administrator shall not cause or allow jeopardy to fiscal integrity of the Town. Accordingly, pertaining to paid workers, he or she may not: 3.8.1: Change his or her own compensation and benefits. Status: Compliance Interpretation: I interpret this to mean that I cannot take any action that would result in a personal financial benefit, including modifying my benefits, leave provisions, or compensation in any way that is not defined in my employment agreement or specifically approved by the Town Board. Compliance with the policy will be achieved when: All of my compensation and benefits remain as approved by the Board through either my employment agreement or by specific action of the Town Board. Evidence: 1. The adopted budget and Comprehensive Annual Financial Report document that I have not taken any action to change my own compensation or benefits. Report: I report compliance. 3.8.2: Promise or imply permanent or guaranteed employment. Status: Compliance Interpretation: I interpret this to mean that I cannot make any statements to current or potential employees that they can be assured of permanent or guaranteed employment with the Town of Estes Park. Compliance with the policy will be achieved when: I do not make any comments or agreements, verbally or in writing, to any employee that could be construed as implying permanent or guaranteed employment. Evidence: 1. The absence of allegations (substantiated or otherwise) that I have promised or implied permanent or guaranteed employment. No allegations of this type have been raised with myself, Human Resources or with the Board. Report: I report compliance 3.8.3: Establish current compensation and benefits which deviate materially for the regional or professional market for the skills employed. 4 4 Status: Compliance Interpretation: I interpret this to mean that the Town regularly compares our compensation and benefits to the regional market. That market has been defined in Policy 301 as adopted by the Board. The specifics of the market comparison process are defined in Policy 301. Compliance with the policy will be achieved when: I ensure we fully comply the procedures and steps outlined in Board-adopted Policy 301 regarding Classification and Compensation. Evidence: 1. The compensation study, as prepared by the Town Compensation Consultant under the supervision of the Human Resources staff. 2. Published Compensation schedules and Classification plan which are congruent with the results of the annual Compensation Study. 3. Specifics of the compensation model and most recent study are available for inspection upon request. Report: I report compliance. 3.8.4: Establish deferred or long-term compensation and benefits, without approval of the Town Board. Status: Compliance Interpretation: I interpret this to mean that I cannot take any actions that would create or change any deferred or other long-term compensation for any employees without specific Board approval. Compliance with the policy will be achieved when: There have been no changes to any employee’s deferred or other long-term compensation or benefits without Board approval. Evidence: 1. The adopted budget and the Comprehensive Annual Financial Report document that I have not taken any action to change any long-term compensation or benefits without the prior approval of the Board. Report: I report compliance. 5 5       6 6 Town of Estes Park, Larimer County, Colorado, September 10, 2019 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 10th day of September, 2019. Present: Todd Jirsa, Mayor Trustees Carlie Bangs Eric Blackhurst Marie Cenac Patrick Martchink Ron Norris Ken Zornes Also Present: Travis Machalek, Town Administrator Dan Kramer, Town Attorney Jackie Williamson, Town Clerk Absent: None. Mayor Jirsa called the meeting to order at 7:00 p.m. and all desiring to do so, recited the Pledge of Allegiance. SWEARING IN CEREMONY Town Clerk Williamson conducted a swearing-in ceremony for newly elected Trustee Eric Blackhurst. AGENDA APPROVAL. It was moved and seconded (Cenac/Norris) to approve the Agenda, and it passed unanimously. PUBLIC COMMENTS. Greg Rosener/Town citizen stated issues brought up during the recent Recall Election could have been dealt with by the Board, and stated the Board members have an obligation to address concerns of the citizens. He requested the Board develop a process to address future violations of public trust. TOWN BOARD COMMENTS Trustee Cenac commented the Rodeo Committee would be attending the Cervi Ranch/Rodeo stock contractor to serve food to the cowboys. Trustee Bangs stated she and Town Administrator Machalek attended a recent Department of Local Affairs (DOLA) meeting on housing. The Transportation and Advisory Board (TAB) and Sister Cities Committee would meet next week. Trustee Norris reminded the public the Estes Valley Planning Commission would meet on September 17, 2019. The Town Board and Larimer County Commissioners would hold a joint meeting on September 30, 2019 to continue discussions on the future of land use planning within the Estes valley. Trustee Blackhurst stated the Estes Park Housing Authority would hold its monthly meeting on September 11, 2019 in the Hix meeting room at the US Bank building. He thanked his fellow Trustees and staff for providing information and bringing him up to speed on current issues. He announced he would have upcoming conflicts of interest on items before the Board and he would recuse himself when appropriate. TOWN ADMINISTRATOR REPORT. None. 1. CONSENT AGENDA:DRAFT7 7 Board of Trustees – September 10, 2019 – Page 2 1. Bills. 2. Town Board Minutes dated August 27, 2019 and Town Board Study Session Minutes dated August 27, 2019. 3. Board of Appeals Minutes dated May 9, 2019 (acknowledgment only). 4. Family Advisory Board Minutes dated August 1, 2019 (acknowledgement only). 5. Consultant Contract for 2019 Facilities Master Plan with Studio Architecture, LLC for $180,000 (budgeted). 6. Resolution 27-19 Lease a Portion of 1180 Woodstock Drive to KREV-LP. 7. Resolution 28-19 Lease a Portion of 1180 Woodstock Drive to Peak Broadband, Inc. It was moved and seconded (Norris/Zornes) to approve the Consent Agenda Items, and it passed with Trustee Blackhurst recusing himself due to a conflict of interest on Item 6 and 7. 2. ACTION ITEMS: 1. MAYOR PRO TEM. Mayor Jirsa nominated Trustee Cenac stating she has the most years of experience with policy governance and she has made herself available to attend events the Mayor has not been able to attend. Trustee Zornes stated he would prefer the Board consider the appointment of either Trustee Norris or Trustee Martchink due to their tenure on the Board. It was moved and seconded (Jirsa/Cenac) to nominate Trustee Cenac as Mayor Pro Tem. No vote was cast as the substitute motion passed. A substitute motion was moved and seconded (Zornes/Martchink) to nominate Trustee Norris as Mayor Pro Tem, and it passed with Mayor Jirsa and Trustee Cenac voting “No”. 2. RESOLUTION 29-19 SUPPLEMENTAL BUDGET APPROPRIATIONS. Finance Director Hudson outlined amendments to the 2019 Budget to address additional projects and activities that were not known or included in the original budget, including Police Canine Unit, consolidating the Facilities Need Assessment in the Community Reinvestment fund, and de-bruced TABOR revenue transfers. It was moved and seconded (Zornes/Martchink) to approve Resolution 29-19, and it passed with Trustee Cenac abstaining. 3. INITIATED ORDINANCE PETITION – TO PERMIT THE OPERATION OF MARIJUANA FACILITIES WITHIN TOWN LIMITS. Town Clerk Williamson reviewed the Initiated Ordinance to allow the operation of marijuana facilities within town limits, stating the petition was received on July 31, 2019. The Initiated Ordinance was submitted to the Clerk with 17 petition sections containing 366 signatures. A Statement of Sufficiency was established on August 28, 2019 with 271 verified signatures meeting §31-11-104 CRS requirement for a petition to be signed by 5% (238) of the registered voters at the time the petition was certified by form. The Town Board’s options are limited to (1) adopt, without alteration, the Initiated Ordinance as proposed, Ordinance 23-19, or (2) refer the Initiated Ordinance to the registered electors of the municipality at a regular or special election, held not less than 60 days and not more than 150 days after the Statement of Sufficiency by adopting Resolution 26-19. The adoption of the Resolution would set the question, establish the date of a special election and set the election as a mail ballot election if adopted as written. Due to the date in which the petition was submitted to the Town Clerk and the 40-day protest period ending on September 9, 2019, the Town Board was unable to consider adding this item to the November 5, 2019 Coordinated Election. In order to place the Initiated Ordinance on the ballot in November, the Board would have had to certify the DRAFT8 8 Board of Trustees – September 10, 2019 – Page 3 ballot language on September 6, 2019 prior to the protest period end date. If the consensus of the Board is to set a Special election, the Board would have to select a Tuesday between December 8, 2019 and January 7, 2020. The available dates would include December 10, 2019, December 17, 2019, December 24, 2019, December 31, 2019 or January 7, 2020. Staff recommended December 10, 2019 as a mail ballot election date to allow ballots to be mailed and received by the voters prior to the holidays. Those speaking in favor of the Initiated Ordinance included Cam Bogener/Town citizen and petitioner, Travis Blair/Town citizen, Mason Tucker/Town citizen, Walker Calden/Town citizen, Caleb Machado/Town citizen, Lisa Gonzales/Town citizen and Carolyn Newberry/Town citizen and petitioner. Ms. Newberry also stated she would support a vote on the ordinance. Those speaking against the initiated ordinance and set a special election, included Ralph Oren/Town citizen, Brian Wells/Town citizen, Johanna Darden/Town citizen, Jay Lykins/Town citizen, Wendy Koenig-Schuett/Town citizen, Jane Rutledge/Town citizen, Bob Fixter/Town citizen, William Howell/Town citizen, Wayne Newson/Town citizen, Ester Cenac/Town citizen, Judy Howell/Town citizen, Pat Newsom/Town citizen, John Krueger/Town citizen, Ronald Keas/Town citizen, Joel Holtzman/Town citizen, and John Spahnle/Town citizen. Town Board comments were summarized: Blackhurst stated a previous Town Board passed an Ordinance in 2013 to place a moratorium on marijuana, and concluded the issue would be considered in the future through an initiated ordinance process and set for a vote; Zornes concurred with the motion to set a special election; Norris stated support for a special election to allow time for advocacy on the pros and cons of marijuana; Jirsa stated the importance of allowing the citizens to vote on the issue; Bangs stated support for the initiated ordinance and support for a special election; Cenac favors the motion to set a special election to provide citizens time to educate themselves on the pros and cons; and Martchink would support the motion. It was moved and seconded (Blackhurst/Cenac) to appove Resolution 26-19 referring Initiated Ordinance 23-19 to a Special Municipal Election on Tuesday, December 10, 2019, and it passed unanimously. 3. REPORT AND DISCUSSION ITEMS: 1. STRUCTURE OF JOINT TOWN BOARD / COUNTY COMMISSION MEETING ON SEPTEMBER 30, 2019. Director Hunt provided a recap of the last joint meeting between the Town Board and County Commissioners held on July 29, 2019. The next joint meeting to be held on September 30, 2019 would continue the discussion with alternatives to be presented by the Town and County staff, including an alternative to extend the current IGA and a second to recast the IGA. Staff recommended a public meeting to receive public comment and to take action on a preferred alternative. Staff would then develop a final draft IGA for the elected officials to consider at the November 14, 2019 meeting. The Board requested the draft alternatives be presented at the next Town Board meeting on September 24, 2019 as a report and discussion item. Whereupon Mayor Jirsa adjourned the meeting at 8:50 p.m. Todd Jirsa, Mayor Jackie Williamson, Town Clerk DRAFT9 9 Town of Estes Park, Larimer County, Colorado September 10, 2019 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 Rooms 202/203 in said Town of Estes Park on the 10th day of September 2019. Board: Mayor Jirsa, Trustees Bangs, Cenac, Martchink, Norris and Zornes Attending: Mayor Jirsa, Trustees Bangs, Cenac, Martchink, Norris and Zornes Also Attending: Town Administrator Machalek, Town Attorney Kramer and Recording Secretary Beers Absent: None Mayor Jirsa called the meeting to order at 5:30 p.m. DOWNTOWN ESTES LOOP QUARTERLY UPDATE. The Project Technical Advisory Committee provided an overview of the progress and activities since the June 2019 update. Colorado Department of Transportation (CDOT) is the lead agency for full right-of-way acquisition and follows the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Uniform Act). Offers for all seven of the full acquisitions have been made to property owners to include the purchase of four parcels. CDOT assists property owners and tenants who require relocation. If settlements cannot be reached CDOT would proceed with condemnation for value. CDOT is currently working through the condemnation process with three properties. Required asbestos and lead-based paint testing continues pending results. Mitigation time and abatement takes approximately two weeks and determining factors are age, structure, composition and review. Central Federal Lands Highway Division (CFLHD) is the lead agency for project design with approximately 70% of plans in development. Next steps included: 95% design submittals by spring of 2020, right-of- way acquisition and finalizing utility relocation plans and scheduling. CFLHD would conduct monthly Technical Advisory Committee meetings, quarterly updates to the Board and Phase II scope if the Town is awarded the BUILD grant in November 2019. Board questions and comments have been summarized: whether CDOT has compensated businesses for the additional risk to retrofit a new location; if acquisition and relocation is constricted by federal regulations, and concern was heard related to future requests of additional funding requested of the Town. The Board requested the quarterly updates incorporate project cost updates and budget review. ESTES PARK HOUSING AUTHORITY (EPHA) PROJECT ON HIGHWAY 7 – PART II. The EPHA requested a Town commitment to contribute up to $800,000 towards the development of Peak View Apartments workforce housing. Director Hawf stated the Workforce Housing and Childcare Ad-Hoc Task Force final report noted lack of housing options for year-round and season workforce. The type of housing needed includes rental, ownership, short-term, long-term, single family home, apartment and duplex. There are more than 200 new housing options in development in the community over the next 3-5 years for Stanley Avenue, Grand Estates, Wind River, Peak View, Wildfire Homes, Alarado and Habitat for Humanity. EPHA intend to continue to offer attainable and affordable rents for the workforce and continue their mission to serve community needs. Having more housing for employees would allow individuals and families to live, shop and play in the community, thereby creating additional sales tax dollars which remain in Town. The EPHA Peak View housing expansion would include 26 housing units with one, two and three bedroom units. Costs are approximately $7.5 million for development. Funding sources are estimated at $5,090,000 bank loan; $1,610,000 DRAFT10 10 Town Board Study Session – September 10, 2019 – Page 2 equity obtained through development fees and return on previous development and rents; and a $800,000 partnership with the Town at a 50% match to EPHA’s contributions. Partnership options were outlined as a $200,000 tap fee with $600,000 loan or grant, tap fee subsidy request, a loan with interest or housing grant through a master lease where the Town would determine the number of units. The master lease was presented to include year round workforce with EPHA dedicating funds toward a Down Payment Assistance program for employees who participate in the Town Home Ownership Program. A seasonal and contingent workforce option was reviewed which can be established through a master lease option committing the Town to an annual lease. Director Hawf stated the Town would not need to manage housing or pay management costs. Board questions and comments have been summarized: whether staff have reviewed budget implications; would the project incorporate childcare; the Board questioned if the housing would fit the needs which exist for employees; concern was stated regarding the inability of the Town to deliver services without the ability to obtain and keep qualified employees; how the Town could utilize the options presented; whether the EPHA have held master lease discussions with other employers in Town; a request was made for more information on how the 26 units would benefit the Town; should another housing study be conducted before the Town makes a decision on contributing to the project; how rents are determined for workforce housing; the Board was expressed interest in state and county information on AMI levels; and concern regarding the potential of the project becoming a land issue and what position would this place the Board in if there is a land use issue. The Board requested staff bring forward the funding options during the budget process and draft the outline of an agreement after the budget review. TRUSTEE & ADMINISTRATOR COMMENTS & QUESTIONS. Trustee Norris requested an annual survey presented to the Family Advisory Board be distributed to the Board related to children living in poverty in areas of Larimer County. FUTURE STUDY SESSION AGENDA ITEMS. The Board moved the Discussion with the County Assessor regarding Assessment of Vacation Rentals and a Discussion of the Fish Hatchery Property to Items Approved and Unscheduled. Trustee Remote/Electronic Meeting Participation was moved to the September 24, 2019 due to time constraints and requested the Board submit legal questions to the Town Attorney prior to the meeting. The Board made a request to distribute a news release to the public regarding the remote access item being discussed at the next study session meeting. There being no further business, Mayor Jirsa adjourned the meeting at 6:44 p.m. Bunny Victoria Beers, Recording Secretary DRAFT11 11       12 12 RECORD OF PROCEEDINGS Estes Valley Planning Commission August 20, 2019 Board Room, Estes Park Town Hall Commission: Chair Bob Leavitt, Vice-Chair Sharry White, Commissioners Steve Murphree, Frank Theis, Nick Smith, Dave Converse Attending: Chair Leavitt, Vice-Chair White, Commissioners Murphree, Theis, Smith, Converse Also Attending: Director Randy Hunt, Planner I Linda Hardin, Senior Planner Jeff Woeber, Recording Secretary Karin Swanund, Town Board Liasion Ron Norris, Town Attorney Dan Kramer Absent: None OPEN MEETING Chair Leavitt called the meeting to order at 6:00 p.m. There were approximately 35 people in attendance. APPROVAL OF AGEND A It was moved and seconded (White/Smith) to approve the agenda as presented and the motion passed 6-0. PUBLIC COMMENT None CONSENT AGENT 1. Study Session Minutes dated July 16, 2019 2. Meeting Minutes dated July 16, 2019 It was moved and seconded (Converse/Theis) to approve the consent agenda as presented and the motion passed 6-0. ACTION ITEMS 1. DEVELOPMENT PLAN: THE MEADOW CONDOMINIUMS at WILDFIRE Senior Planner Woeber gave a synopsis of the entire Wildfire Development Plan. He reviewed the Development Plan proposal for The Meadow Condominiums. The applicant proposes to develop the vacant lot with nine condominium buildings, eight units per building, containing a total of 72 individual units. All units will be qualified as workforce housing. Workforce housing, under the EVDC §11.4.C., requires, “…at least one (1) resident in each housing unit annually submits an affidavit, including a copy of a W-2 form, to the Town certifying that the resident is employed within the Estes Park School District R-3 Boundary Map.” 13 13 RECORD OF PROCEEDINGS Estes Valley Planning Commission August 20, 2019 Board Room, Estes Park Town Hall As all units are proposed as workforce, the applicant is able to utilize the density and height bonus incentives per EVDC §11.4. The maximum permitted density for this lot using the density bonus incentive (200% of maximum base) is 84 units; however the applicant is proposing 72 with this project. A Restrictive Covenant Agreement is required. Applicant Discussion: Lonnie Sheldon, Van Horn Engineering, distributed a letter of support from the Estes Park Economic Development Corp. He shared a slide show explaining the project and the steps that have been taken thus far in the process as well as the architectural plans and distances from the residences to the south of the development and emergency access points. The price point of units is planned at $260,000-$425,000. A turn lane is not required per the LCUASS Standard (Larimer County Urban Area Street Standards). However, the owners have agreed to install a left turn lane at Wildfire Drive; no additional land will be required to do this. Public Comment: Anna Schonlau, town resident, asked who will be enforcing the workforce housing and commented that the emergency outlets do not meet the fire code requirements. Hold off on any advancement until these concerns are discussed. Applicant response: Reviews with the Fire Marshall have been ongoing and frequent. There are numerous emergency access points planned. Commission Discussion: Attorney Kramer noted that workforce housing will be reviewed by the Town and the Housing Authority, working together to verify employment. Modifications to the Covenants would be decided by the Town Board of Trustees. The Restrictive Covenants run for 50 years. Woeber addressed the emergency outlets, stating that the Fire Marshall thoroughly reviewed the plan and will permit some leeway with ingress and egress. It was suggested to have a letter from the Fire Marshall or have him present at the Town Board Meeting. It was moved and seconded (White/Theis) to APPROVE The Meadow Condominiums at Wildfire Development Plan application according to findings as presented. The motion passed 6-0. 2. PRELIMINARY CONDO MAP, The Meadow Condominiums Staff noted the Preliminary Condominium map is nearly identical to the Development Plan. It was moved and seconded (White/Murphree) to forward a recommendation of APPROVAL to the Town Board of Trustees of The Meadow 14 14 RECORD OF PROCEEDINGS Estes Valley Planning Commission August 20, 2019 Board Room, Estes Park Town Hall Condominiums at Wildfire Preliminary Condominium Map application, according to findings of fact recommended by Staff. The motion passed 6-0. 3. THE DIVIDE CONDOMINIUMS at WILDFIRE. The applicants propose to develop the vacant lot with two condominium buildings, with eight units per building, containing a total of 16 individual units. All units will be qualified as workforce housing. Workforce housing, under the EVDC §11.4.C., requires, “…at least one (1) resident in each housing unit annually submits an affidavit, including a copy of a W-2 form, to the Town certifying that the resident is employed within the Estes Park School District R-3 Boundary Map.” As all units are proposed as workforce, the applicant can utilize the density and height bonus incentives per EVDC §11.4. The maximum permitted density for this lot using the density bonus incentive (200% of maximum base) is 16.3 units, where the applicant is proposing 16. The height bonus incentive allows a maximum height of 38 feet, with a maximum height of 34.83 feet being proposed. Applicant Discussion: see above for The Meadow Public Comment: see above for The Meadow It was moved and seconded (White/Leavitt) to APPROVE The Divide Condominiums at Wildfire Development Plan application according to findings as presented. The motion passed 6-0. 4. PRELIMINARY CONDO MAP, The Divide Condominiums Staff noted the Preliminary Condominium map is nearly identical to the Development Plan. It was moved and seconded (White/Murphee) to forward a recommendation of APPROVAL to the Town Board of Trustees of The Divide Condominiums at Wildfire Preliminary Condominium Map application, according to findings of fact recommended by Staff. The motion passed 6-0. 5. ESTES PARK CHALET DEVELOPMENT PLAN Woeber summarized the Development application proposing to rebuild the lodge, which will have 49 rooms, a restaurant, meeting space, and a craft brewing area. Staff notes the Estes Park Chalet project involves the rebuild of the lodge facility, along with a new proposed “Event Facility.” With that, staff has reviewed and evaluated the impacts of the project as a whole, while at the same time recognizing there are two distinct approval processes. The uses-by-right in the Accommodations Zoning (Hotel/Motel and Restaurant) are considered for action 15 15 RECORD OF PROCEEDINGS Estes Valley Planning Commission August 20, 2019 Board Room, Estes Park Town Hall by the EVPC in the Development Plan, while at the same time recognizing the project involves the Event Facility. The Event Facility use itself is subject to an S1 Level Special Review, with final action by the Town of Estes Park Board of Trustees as the governing body. There is no recommendation by the EVPC for the S1 Special Review. The Special Review is scheduled for the August 27, 2019, Town Board hearing. Applicant Comments: Morgan Mulch, owner, described the past 14 months of planning this development after the devastating fire. He has received a positive consensus from the two HOA boards regarding the plans. 51 of 69 condos on site are in the rental pool, the new accommodations will allow for most event guests to be on-site. The event center will hold 200 people, the restaurant will have 50 seats. Bo Wenzl, project manager, gave a timeline of construction stating it will take between 14-16 months and is being done by Doan Construction using the 2015 Building code requirements. Dave Bangs, Trail Ridge Consulting Engineers, spoke on the emergency access points, which will be a significant improvement from what has been, including fire sprinklers and hydrants There was a drainage study done in 2006 for the entire area. The majority of the project is being done in the original footprint of the burned lodge. Sean Keller, Traffic Engineer Consultant, noted the site plan parking requirements were calculated according to the current Institute of Traffic Engineering total use and total demand, which calls for 195 spaces. Considerable discussion on parking was had between the applicants and the Commission. There is no reciprocal agreement with the church on Promontory Drive. Public Comment: John Meissner, town resident, asked what is being done for fire suppression. (see above) Commission Comments: Appreciation for the timeliness of the rebuild and the overall likeability and creativity of the plan. It was moved and seconded (Smith/Murphree) to APPROVE the Estes Park Chalet Development Plan application according to findings as presented. The motion passed 6-0. 6. BEST WESTERN-SILVER SADDLE DEVELOPMENT PLAN Planner Hardin described the current application to add 18 guest units to the motel, move the swimming pool to an indoor location, and add separate laundry facilities for guests and staff. In addition, the proposal includes employee break areas and an office. Additional parking is included to accommodate the increase in guest units. The property has 56.5% impervious coverage, improving on the 16 16 RECORD OF PROCEEDINGS Estes Valley Planning Commission August 20, 2019 Board Room, Estes Park Town Hall nonconforming standard. Parking spaces have been corrected to 19.5 feet, per code. Applicant comment: Wally Burke, owner, wants to bring the hotel up to modern standards, centrally locate the lobby and make most rooms indoor-corridor. Neighbor views will not be lost. Pubic Comment: Ron Stevens, town resident, objected to the plan as it will impede the view from his condo (E) in Ranch Meadows thus impacting his property value. A redesign of the roof could minimize the impact. Barbra Headley, town resident, stated that the height variance seems to be glossed over. Dave Wehrs, town resident, had questions on how the height was calculated. Applicant response: Jason McMurren, Bas1s Architecture, confirmed the roof is in line with the standard 30 foot code requirement. Building heights are calculated by taking the tallest and shortest part of the building from grade to roofline and averaging those measurements. Commission comments: Viewshed has been a concern in the past, but as long as the plan follows the Development Code there is nothing the Planning Commission can do. Submitting a cross-section of the building would make it much easier to understand the building height. It was moved and seconded (Leavitt/Theis) to APPROVE the Silver Saddle Addition Development Plan application according to findings of fact and including conditions as recommended by Staff. The motion passed 6-0. 7. MODIFICATION OF ALARADO DEVELOPMENT PLAN Director Hunt explained the request of the applicants’ request to modify the conditions of Development Plan approval by adding an option for traffic management on U.S. 34 adjacent to the project site. The applicants specifically are asking that the conditional approval allows for the possibility of a traffic signal at the U.S. 34 / Steamer Drive intersection, rather than the additional traffic lane approved in Oct. 2018, provided that CDOT approves the signal and that other necessary steps (including funding) align. Approval of the motion will not lock in either option for the U.S. 34 traffic solution; it will only allow continued design of the signal and a path to possible approval of that option. Applicant comments: Lonnie Sheldon, Van Horn Engineering, reported that CDOT stated that a waiver could be allowed for a traffic light less than ½ mile from the closest signal if traffic warrants. A traffic study was done in mid-June 17 17 RECORD OF PROCEEDINGS Estes Valley Planning Commission August 20, 2019 Board Room, Estes Park Town Hall and again in August and numbers are now available to take to CDOT for review. The applicant pursued this improvement at their own cost. This request is an option to the original plan; it will be either/or. Ryan Wells, owner, noted that he will fund a traffic light 100%. Public Comment: Sean Jones, town resident, stated that 33% of Jimmy Johns business is delivery and delivery vehicles will account for more traffic. A light will back up traffic on Steamer Drive. David Cordes, town resident, stated that a traffic light may not solve all the problems, and suggested a public meeting to throw out all possible scenarios. Applicant response: A light will provide significant breaks in traffic for turning onto Highway 34. Commission Comments: Questions about the fate of the pedestrian crosswalk to the north. The Transportation Advisory Board (TAB) is an excellent venue for public input. The final decision is up to CDOT, not Public Works or the Town Board. It was moved and seconded (Theis/Smith) to APPROVE the modification to conditions of approval for the Alarado Business Park Development Plan application according to findings of fact and including conditions as recommended by Staff. The motion passed 6-0. REPORTS • Park and Recreation Amendment will be on the Town Board meeting on August 27. The “Green” option will return with camping and hunting struck out. • Suggestion of having an on-site visual of proposed project heights for Development Projects. • Town and County have set a tentative meeting date of September 30 to discuss the future of the IGA. • ADJOURN There being no further business Chair Leavitt adjourned the meeting at 9:06 p.m. Bob Leavitt, Chair Karin Swanlund, Recording Secretary 18 18 Town of Estes Park, Larimer County, Colorado August 20, 2019 Minutes of a Study Session meeting of the PLANNING COMMISSION of the Estes Valley, Larimer County, Colorado. Meeting held in Town Hall Board Room Commission: Chair Leavitt, Vice-Chair White, Commissioners, Murphree, Smith, Theis, Converse Attending: Leavitt, Theis, Murphree, Smith, White, Converse Also Attending: Town Board Liaison Norris, Director Hunt, Planner I Hardin, Senior Planner Woeber, Recording Secretary Swanlund, Town Attorney Kramer Absent: none Chair Leavitt called the meeting to order at 3:30 p.m There were 11 people in attendance. This study session was recorded and can be viewed on the Town website. Wildfire Condominiums: The Meadow and The Divide Senior Planner Woeber reviewed the Condominium plans, along with the entire project. An annexation, rezoning, preliminary plats and Right of Way have all been approved. The two condominium development plans are being reviewed today along with the preliminary condominium maps. The Meadow sits on 5.19 acres and the Divide on 1.01 acres. These will consist of 43 total lots, 26 for townhomes, 2 for condos, one for an office and 10 out lots. Nothing has changed since the plan was first brought before the Commission in June. Architectural drawings will be handed out prior to the 6:00 p.m. meeting. The three code waivers have been approved by the Town Board. Commissioner Converse mentioned that the submitted plans were hard to read and when expanded, became blurry. He also noted that the term “affordable” is not defined in the Development Code, Comprehensive Plan or this proposal. Hunt stated that that term should not be used in staff reports and that applicants not use the term in the future. Attainable or workforce housing should be used instead. Attorney Kramer stated that the restrictions and covenants were not yet ready to be brought before the commission. Estes Park Chalet Development Plan Planner Woeber described the plan to rebuild the burned lodge, including 49 rooms, a restaurant, meeting space and craft brewing area. Drainage and parking studies were previously done and are in line with current needs. The event facility is an S1 review and will be reviewed by the Town Board on August 27. Public Works did not require a traffic study but did ask for a final drainage report when the construction plans are submitted. Best Western-Silver Saddle Development Plan Planner Hardin discussed the plan to add 18 units, laundry facilities, office space, a gathering lounge for guests and enclosing the swimming pool. All affected agencies were notified and their conditions have been met. The building is less than 30 feet in height and meets all of the requirements of the Development Code. Impervious coverage is being lowered with this plan and landscaping is being increased. Impervious coverage meanings and percentages were discussed at length. Alarado Amended Conditions 19 19 Planning Commission Study Session August 20, 2019 – Page 2 Director Hunt explained the need for amended conditions to this plan due to CDOT, Town and project owner concerns with traffic flow. Given the possibility of installing a traffic signal, the applicant would like this to be added as an option to the conditions of the original development plan. David Hook, Public Works engineer, noted that pedestrian patterns are also being considered. He clarified that the original plan did not have a deceleration lane, but an additional lane heading east on 34. The Town and CDOT have discussed a roundabout, but that would not be imposed or included in this project. CDOT will have the final say in what the decision is for this intersection. The traffic solution has to be in place prior to the final CO being issued. Landscaping requirements in Development Plans Director Hunt spoke on projects that had landscaping requirements in their development plan, but the landscaping didn’t survive or wasn’t done according to plan. The Planning Technician will be checking on these issues, with enforcement coming from Code Enforcement Officer. Landscaping requirements were written prior to the Firewise Guidelines. The revised written code will address this. Stanley Hotel Arts Center Director Hunt discussed the upcoming Stanely Hotel Arts Center. This project will be reviewed and decided by the Stanley Historic District Technical Review Committee (TRC). Grading and parking lot permits are being processed. The Art Center Development Plan will be submitted in the near future. Parking and traffic studies will be required before any work can commence. There will be no new Lot 4 building permits approved until the Grading permit for Lot 4 has been resolved. Vacation Home cap related to PUDs Director Hunt discussed the potential conflict of Vacation Homes in relation to a PUD overlay. There is no provision for changing the residential cap in this situation, but PUD amendement language would allow accommodation uses in Residential zones. It needs to be decided which use is allowable and conflicting code language needs to be removed. Updates • IGA: Results from public survey and notes from the public meeting have been posted on the County website. Discussion on ways to get more of the public involved, including the younger demographic, business owners and contractors; “Go to where they gather.” The report of pros/cons has been completed, but the county has not had time to review it. September 30 is the next tentatively scheduled joint meeting. • Park and Rec: Three amendments have been presented to the town board for consideration. Tent camping and hunting have been removed from the preferred “Green” amendment. This will be going back to the Town Board on August 27. Commissioner White commented on an app called Hipcamp, an Airbnb type site with more than 300,000 campsites available for rental on private land. • Parking: An Ayres Associates staff member was in town over the weekend observing and taking notes on the parking congestion, specifically visiting multi-unit projects. More reports in September. • Staff: Three Planner II interviews took place and a preferred candidate was chosen. Negotiations are in the works. All three are qualified candidates. Questions/Future Items 20 20 Planning Commission Study Session August 20, 2019– Page 3 Impervious coverage percentages Alternative plans vs Waivers categories Landscaping requirements with regard to fire danger and utility easements Answer to Vacation Homes in PUD’s (County hearing in October) Commissioner Converse will not be in attendance for the September meeting. Request to email the agenda to the commission as soon as it is available, using “work product” in the subject line. Chair Leavitt adjourned the meeting at 5:20 p.m. _____________________________________ Bob Leavitt, Chair Karin Swanlund, Recording Secretary 21 21       22 22 Utilities Department Memo To: Honorable Mayor Jirsa Board of Trustees Through: Town Administrator Machalek From: Utilities Coordinator Rusch. Utilities Director Bergsten Date: 9/24/2019 RE: Agreement with JVA Consulting Engineers for Engineering Services, Prospect Mountain Water Distribution System Upgrades (Mark all that apply) PUBLIC HEARING ORDINANCE LAND USE CONTRACT/AGREEMENT RESOLUTION OTHER______________ QUASI-JUDICIAL YES NO Objective: The objective is to improve the reliability of water service with new water mains and up- to-date computerized control systems serving the former Prospect Mountain Water Company (PMWC) customers. Present Situation: The PMWC, formerly a bankrupt private water system, was voluntarily transferred to the Town in June of this year. Prior to the transfer, agreements and USDA financing were secured to have the PMWC water distribution system redesigned and replaced. The USDA financing includes a loan of $4,493,000 with forty-year terms at 2.375% and a generous $6,547,000 grant. Only former PMWC customers will be charged with repaying the project costs. Approval of The Agreement is the next milestone in the project. This Agreement has been reviewed and approved by Attorney Kramer, JVA Consulting Engineers, Town staff and the USDA. Proposal: Staff proposes using JVA Consulting Engineers to redesign, competitively bid construction work and manage the entire project. Advantages: • Upgrades this area’s infrastructure with up-to-date, Town compatible technology • Improves its water infrastructure, reliability and quality • Adds fire protection to these neighborhoods • Remove a stigma tied to properties formerly served by PMWC 23 23 Disadvantages: There is an increase in administrative workload associated with the USDA loan and managing the project; however; JVA’s project management proved to be excellent on the Park Entrance Mutual Pipeline and Water Company redesign and system construction project. Action Recommended: Staff recommends approval of The Agreement with JVA Consulting Engineers Finance/Resource Impact: Medium. This project is entirely funded by USDA grant/loan and repaid by the former PMWC customers. The additional administrative workload is a concern which will be monitored and if required, staff will be augmented with short-term consultant support. Level of Public Interest Low for the general public, however high for the former customers of PMWC. Sample Motion: I move for the approval/denial of the Agreement Attachments: Link to the Agreement 24 24 EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Estes Park – JVA, Inc Prospect Mountain Water Distribution System Improvements AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES 25 25 Copyright © 2014: National Society of Professional Engineers 1420 King Street, Alexandria, VA 22314-2794 (703) 684-2882 www.nspe.org American Council of Engineering Companies 1015 15th Street N.W., Washington, DC 20005 (202) 347-7474 www.acec.org American Society of Civil Engineers 1801 Alexander Bell Drive, Reston, VA 20191-4400 (800) 548-2723 www.asce.org The copyright for this EJCDC document is owned jointly by the three sponsoring organizations listed above. The National Society of Professional Engineers is the Copyright Administrator for the EJCDC documents; please direct all inquiries regarding EJCDC copyrights to NSPE. 26 26 EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. TABLE OF CONTENTS Page ARTICLE 1 – SERVICES OF ENGINEER ................................................................................................................... 1 1.01 Scope .............................................................................................................................................. 1 ARTICLE 2 – OWNER’S RESPONSIBILITIES ............................................................................................................ 1 2.01 General ........................................................................................................................................... 1 ARTICLE 3 – SCHEDULE FOR RENDERING SERVICES............................................................................................ 2 3.01 Commencement ............................................................................................................................. 2 3.02 Time for Completion ...................................................................................................................... 2 ARTICLE 4 – INVOICES AND PAYMENTS .............................................................................................................. 2 4.01 Invoices ........................................................................................................................................... 2 4.02 Payments ........................................................................................................................................ 2 ARTICLE 5 – OPINIONS OF COST .......................................................................................................................... 3 5.01 Opinions of Probable Construction Cost ....................................................................................... 3 5.02 Designing to Construction Cost Limit ............................................................................................ 3 5.03 Opinions of Total Project Costs ...................................................................................................... 4 ARTICLE 6 – GENERAL CONSIDERATIONS ............................................................................................................ 4 6.01 Standards of Performance ............................................................................................................. 4 6.02 Design Without Construction Phase Services ............................................................................... 6 6.03 Use of Documents .......................................................................................................................... 6 6.04 Electronic Transmittals ................................................................................................................... 7 6.05 Insurance ........................................................................................................................................ 7 6.06 Suspension and Termination ......................................................................................................... 8 6.07 Controlling Law ............................................................................................................................... 9 6.08 Successors, Assigns, and Beneficiaries ........................................................................................ 10 6.09 Dispute Resolution ....................................................................................................................... 10 6.10 Environmental Condition of Site .................................................................................................. 10 6.11 Indemnification and Mutual Waiver ........................................................................................... 11 6.12 Records Retention ........................................................................................................................ 12 6.13 Miscellaneous Provisions ............................................................................................................. 12 ARTICLE 7 – DEFINITIONS ................................................................................................................................... 13 7.01 Defined Terms .............................................................................................................................. 13 ARTICLE 8 – EXHIBITS AND SPECIAL PROVISIONS ............................................................................................. 17 8.01 Exhibits Included: ......................................................................................................................... 17 8.02 Total Agreement: ......................................................................................................................... 18 8.03 Designated Representatives: ....................................................................................................... 18 8.04 Engineer's Certifications: ............................................................................................................. 18 27 EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES Owner and Engineer further agree as follows: ARTICLE 1 – SERVICES OF ENGINEER 1.01 Scope A. Engineer shall provide, or cause to be provided, the services set forth herein and in Exhibit A. ARTICLE 2 – OWNER’S RESPONSIBILITIES 2.01 General A. Owner shall have the responsibilities set forth herein and in Exhibit B. B. Owner shall pay Engineer as set forth in Article 4 and Exhibit C. C. Owner shall be responsible for all requirements and instructions that it furnishes to Engineer pursuant to this Agreement, and for the accuracy and completeness of all programs, reports, data, and other information furnished by Owner to Engineer pursuant to this Agreement. Engineer may use and rely upon such requirements, programs, instructions, reports, data, and information in performing or furnishing services under this Agreement, subject to any express limitations or reservations applicable to the furnished items. D. Owner shall give prompt written notice to Engineer whenever Owner observes or otherwise becomes aware of: 1. any development that affects the scope or time of performance of Engineer’s services; THIS IS AN AGREEMENT effective as of (“Effective Date”) between Town of Estes Park, Colorado (“Owner”) and JVA, Incorporated (“Engineer”). Owner's Project, of which Engineer's services under this Agreement are a part, is generally identified as follows: Prospect Mountain Water Distribution System Improvements ("Project"). Other terms used in this Agreement are defined in Article 7. Engineer's services under this Agreement are generally identified as follows: Basic services (including preliminary design, final design, bidding, construction phase services, post-construction phase services), Resident Project Representative (RPR) during construction, and Additional Services as approved. 28 EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 2 2. the presence at the Site of any Constituent of Concern; or 3. any relevant, material defect or nonconformance in: (a) Engineer’s services, (b) the Work, (c) the performance of any Constructor, or (d) Owner’s performance of its responsibilities under this Agreement. ARTICLE 3 – SCHEDULE FOR RENDERING SERVICES 3.01 Commencement A. Engineer is authorized to begin rendering services as of the Effective Date. 3.02 Time for Completion A. Engineer shall complete its obligations within a reasonable time. Specific periods of time for rendering services, or specific dates by which services are to be completed, are provided in Exhibit A, and are hereby agreed to be reasonable. B. If, through no fault of Engineer, such periods of time or dates are changed, or the orderly and continuous progress of Engineer’s services is impaired, or Engineer’s services are delayed or suspended, then the time for completion of Engineer’s services, and the rates and amounts of Engineer’s compensation, shall be adjusted equitably. C. If Owner authorizes changes in the scope, extent, or character of the Project or Engineer’s services, then the time for completion of Engineer’s services, and the rates and amounts of Engineer’s compensation, shall be adjusted equitably. D. Owner shall make decisions and carry out its other responsibilities in a timely manner so as not to delay the Engineer’s performance of its services. E. If Engineer fails, through its own fault, to complete the performance required in this Agreement and any applicable requirement of Enginer in the USDA Rural Development (the “Agency”) Letter of Conditions dated September 28, 2018 within the time set forth, as duly adjusted, then Owner shall be entitled, as its sole remedy, to the recovery of direct damages, if any, resulting from such failure. ARTICLE 4 – INVOICES AND PAYMENTS 4.01 Invoices A. Preparation and Submittal of Invoices: Engineer shall prepare invoices in accordance with its standard invoicing practices and the terms of Exhibit C. Invoices must include a breakdown of services provided. Engineer shall submit its invoices to Owner on a monthly basis. Invoices are due and payable within 30 days of receipt. 4.02 Payments A. Application to Interest and Principal: Payment will be credited first to any interest owed to Engineer and then to principal. 29 EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 3 B. Failure to Pay: If Owner fails to make any payment due Engineer for services and expenses within 30 days after receipt of Engineer’s invoice, then: 1. amounts due Engineer will be increased at the rate of 1.0% per month (or the maximum rate of interest permitted by law, if less) from said thirtieth day; and 2. Engineer may, after giving seven days written notice to Owner, suspend services under this Agreement until Owner has paid in full all amounts due for services, expenses, and other related charges. Owner waives any and all claims against Engineer for any such suspension. C. Disputed Invoices: If Owner disputes an invoice, either as to amount or entitlement, then Owner shall promptly advise Engineer in writing of the specific basis for doing so, may withhold only that portion so disputed, and must pay the undisputed portion subject to the terms of Paragraph 4.01. D. Sales or Use Taxes: If after the Effective Date any governmental entity takes a legislative action that imposes additional sales or use taxes on Engineer’s services or compensation under this Agreement, then Engineer may invoice such additional sales or use taxes for reimbursement by Owner. Owner shall reimburse Engineer for the cost of such invoiced additional sales or use taxes; such reimbursement shall be in addition to the compensation to which Engineer is entitled under the terms of Exhibit C. ARTICLE 5 – OPINIONS OF COST 5.01 Opinions of Probable Construction Cost A. Engineer’s opinions (if any) of probable Construction Cost are to be made on the basis of Engineer’s experience, qualifications, and general familiarity with the construction industry. However, because Engineer has no control over the cost of labor, materials, equipment, or services furnished by others, or over contractors’ methods of determining prices, or over competitive bidding or market conditions, Engineer cannot and does not guarantee that proposals, bids, or actual Construction Cost will not vary from opinions of probable Construction Cost prepared by Engineer. If Owner requires greater assurance as to probable Construction Cost, then Owner agrees to obtain an independent cost estimate. Opinions of Probable Cost and any revisions thereof should reflect compliance with American Iron & Steel requirements mandated by Section 746 of Title VII of the Consolidated Appropriations Act of 2017 (Division A – Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2017) and subsequent statutes mandating domestic preference.” 5.02 Designing to Construction Cost Limit A. If a Construction Cost limit is established between Owner and Engineer, such Construction Cost limit and a statement of Engineer’s rights and responsibilities with respect thereto will be specifically set forth in Exhibit F to this Agreement. 30 EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 4 5.03 Opinions of Total Project Costs A. The services, if any, of Engineer with respect to Total Project Costs shall be limited to assisting the Owner in tabulating the various categories that comprise Total Project Costs. Engineer assumes no responsibility for the accuracy of any opinions of Total Project Costs. B. Opinions of Total Project Costs and any revisions thereof should reflect compliance with American Iron & Steel requirements mandated by Section 746 of Title VII of the Consolidated Appropriations Act of 2017 (Division A – Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2017) and subsequent statutes mandating domestic preference. ARTICLE 6 – GENERAL CONSIDERATIONS 6.01 Standards of Performance A. Standard of Care: The standard of care for all professional engineering and related services performed or furnished by Engineer under this Agreement will be the care and skill ordinarily used by members of the subject profession practicing under similar circumstances at the same time and in the same locality. Engineer makes no warranties, express or implied, under this Agreement or otherwise, in connection with any services performed or furnished by Engineer. B. Technical Accuracy: Owner shall not be responsible for discovering deficiencies in the technical accuracy of Engineer’s services. Engineer shall correct deficiencies in technical accuracy without additional compensation, unless such corrective action is directly attributable to deficiencies in Owner-furnished information. C. Consultants: Engineer may retain such Consultants as Engineer deems necessary to assist in the performance or furnishing of the services, subject to reasonable, timely, and substantive objections by Owner. D. Reliance on Others: Subject to the standard of care set forth in Paragraph 6.01.A, Engineer and its Consultants may use or rely upon design elements and information ordinarily or customarily furnished by others, including, but not limited to, specialty contractors, manufacturers, suppliers, and the publishers of technical standards. E. Compliance with Laws and Regulations, and Policies and Procedures: 1. Engineer and Owner shall comply with applicable Laws and Regulations. 2. Engineer shall comply with any and all policies, procedures, and instructions of Owner that are applicable to Engineer's performance of services under this Agreement and that Owner provides to Engineer in writing, subject to the standard of care set forth in Paragraph 6.01.A, and to the extent compliance is not inconsistent with professional practice requirements. 3. This Agreement is based on Laws and Regulations and Owner-provided written policies and procedures as of the Effective Date. The following may be the basis for 31 EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 5 modifications to Owner’s responsibilities or to Engineer’s scope of services, times of performance, or compensation: a. changes after the Effective Date to Laws and Regulations; b. the receipt by Engineer after the Effective Date of Owner-provided written policies and procedures; c. changes after the Effective Date to Owner-provided written policies or procedures. F. Engineer shall not be required to sign any document, no matter by whom requested, that would result in the Engineer having to certify, guarantee, or warrant the existence of conditions whose existence the Engineer cannot ascertain. Owner agrees not to make resolution of any dispute with the Engineer or payment of any amount due to the Engineer in any way contingent upon the Engineer signing any such document. G. The general conditions for any construction contract documents prepared hereunder are to be EJCDC® C-700 “Standard General Conditions of the Construction Contract” (2013 Edition), prepared by the Engineers Joint Contract Documents Committee, unless expressly indicated otherwise in Exhibit J or elsewhere in this Agreement. H. Engineer shall not at any time supervise, direct, control, or have authority over any Constructor’s work, nor shall Engineer have authority over or be responsible for the means, methods, techniques, sequences, or procedures of construction selected or used by any Constructor, or the safety precautions and programs incident thereto, for security or safety at the Site, nor for any failure of a Constructor to comply with Laws and Regulations applicable to that Constructor’s furnishing and performing of its work. Engineer shall not be responsible for the acts or omissions of any Constructor. I. Engineer neither guarantees the performance of any Constructor nor assumes responsibility for any Constructor’s, failure to furnish and perform the Work in accordance with the Construction Contract Documents. J. Engineer shall not be responsible for any decision made regarding the Construction Contract Documents, or any application, interpretation, clarification, or modification of the Construction Contract Documents, other than those made by Engineer or its Consultants. K. Engineer is not required to provide and does not have any responsibility for surety bonding or insurance-related advice, recommendations, counseling, or research, or enforcement of construction insurance or surety bonding requirements. L. Engineer’s services do not include providing legal advice or representation. M. Engineer’s services do not include (1) serving as a “municipal advisor” for purposes of the registration requirements of Section 975 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (2010) or the municipal advisor registration rules issued by the Securities and Exchange Commission, or (2) advising Owner, or any municipal entity or other person or entity, regarding municipal financial products or the issuance of 32 EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 6 municipal securities, including advice with respect to the structure, timing, terms, or other similar matters concerning such products or issuances. N. While at the Site, Engineer, its Consultants, and their employees and representatives shall comply with the applicable requirements of Contractor's and Owner's safety programs of which Engineer has been informed in writing. 6.02 Design Without Construction Phase Services A. Engineer shall be responsible only for those Construction Phase services expressly required of Engineer in Exhibit A, Paragraph A1.05. With the exception of such expressly required services, Engineer shall have no design, Shop Drawing review, or other obligations during construction, and Owner assumes all responsibility for the application and interpretation of the Construction Contract Documents, review and response to Contractor claims, Construction Contract administration, processing of Change Orders and submittals, revisions to the Construction Contract Documents during construction, construction observation and review, review of Contractor’s payment applications, and all other necessary Construction Phase administrative, engineering, and professional services. Owner waives all claims against the Engineer that may be connected in any way to Construction Phase administrative, engineering, or professional services except for those services that are expressly required of Engineer in Exhibit A. 6.03 Use of Documents A. All Documents are instruments of service, and Engineer shall retain an ownership and property interest therein (including the copyright and the right of reuse at the discretion of the Engineer) whether or not the Project is completed. B. If Engineer is required to prepare or furnish Drawings or Specifications under this Agreement, Engineer shall deliver to Owner at least one original printed record version of such Drawings and Specifications, signed and sealed according to applicable Laws and Regulations. C. Owner may make and retain copies of Documents for information and reference in connection with the use of the Documents on the Project. Engineer grants Owner a limited license to use the Documents on the Project, extensions of the Project, and for related uses of the Owner, subject to receipt by Engineer of full payment due and owing for all services relating to preparation of the Documents, and subject to the following limitations: (1) Owner acknowledges that such Documents are not intended or represented to be suitable for use on the Project unless completed by Engineer, or for use or reuse by Owner or others on extensions of the Project, on any other project, or for any other use or purpose, without written verification or adaptation by Engineer; (2) any such use or reuse, or any modification of the Documents, without written verification, completion, or adaptation by Engineer, as appropriate for the specific purpose intended, will be at Owner’s sole risk and without liability or legal exposure to Engineer or to its officers, directors, members, partners, agents, employees, and Consultants; (3) To the fullest extent legally allowed, Owner shall indemnify and hold harmless Engineer and its officers, directors, members, partners, agents, employees, and Consultants from all claims, damages, losses, and expenses, including attorneys’ fees, arising out of or resulting from 33 EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 7 any use, reuse, or modification of the Documents without written verification, completion, or adaptation by Engineer; and (4) such limited license to Owner shall not create any rights in third parties. D. If Engineer at Owner’s request verifies the suitability of the Documents, completes them, or adapts them for extensions of the Project or for any other purpose, then Owner shall compensate Engineer at rates or in an amount to be agreed upon by Owner and Engineer. 6.04 Electronic Transmittals A. Owner and Engineer may transmit, and shall accept, Project-related correspondence, Documents, text, data, drawings, information, and graphics, in electronic media or digital format, either directly, or through access to a secure Project website, in accordance with a mutually agreeable protocol. B. If this Agreement does not establish protocols for electronic or digital transmittals, then Owner and Engineer shall may jointly develop such protocols. C. When transmitting items in electronic media or digital format, the transmitting party makes no representations as to long term compatibility, usability, or readability of the items resulting from the recipient’s use of software application packages, operating systems, or computer hardware differing from those used in the drafting or transmittal of the items, or from those established in applicable transmittal protocols. 6.05 Insurance A. Engineer shall procure and maintain insurance as set forth in Exhibit G. Engineer shall cause Owner to be listed as an additional insured on any applicable general liability insurance policy carried by Engineer. B. Owner shall procure and maintain insurance as set forth in Exhibit G. Owner shall cause Engineer and its Consultants to be listed as additional insureds on any general liability policies carried by Owner, which are applicable to the Project. C. Owner shall require Contractor to purchase and maintain policies of insurance covering workers' compensation, general liability, motor vehicle damage and injuries, and other insurance necessary to protect Owner's and Engineer's interests in the Project. Owner shall require Contractor to cause Engineer and its Consultants to be listed as additional insureds with respect to such liability insurance purchased and maintained by Contractor for the Project. D. Owner and Engineer shall each deliver to the other certificates of insurance evidencing the coverages indicated in Exhibit G. Such certificates shall be furnished prior to commencement of Engineer’s services and at renewals thereafter during the life of the Agreement. E. All policies of property insurance relating to the Project, including but not limited to any builder’s risk policy, shall allow for waiver of subrogation rights and contain provisions to the effect that in the event of payment of any loss or damage the insurers will have no 34 EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 8 rights of recovery against any insured thereunder or against Engineer or its Consultants. Owner and Engineer waive all rights against each other, Contractor, the Consultants, and the respective officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them, for all losses and damages caused by, arising out of, or resulting from any of the perils or causes of loss covered by any builder’s risk policy and any other property insurance relating to the Project. Owner and Engineer shall take appropriate measures in other Project-related contracts to secure waivers of rights consistent with those set forth in this paragraph. F. All policies of insurance shall contain a provision or endorsement that the coverage afforded will not be canceled or reduced in limits by endorsement, and that renewal will not be refused, until at least 10 days prior written notice has been given to the primary insured. Upon receipt of such notice, the receiving party shall promptly forward a copy of the notice to the other party to this Agreement. G. At any time, Owner may request that Engineer or its Consultants, at Owner’s sole expense, provide additional insurance coverage, increased limits, or revised deductibles that are more protective than those specified in Exhibit G. If so requested by Owner, and if commercially available, Engineer shall obtain and shall require its Consultants to obtain such additional insurance coverage, different limits, or revised deductibles for such periods of time as requested by Owner, and Exhibit G will be supplemented to incorporate these requirements. 6.06 Suspension and Termination A. Suspension: 1. By Owner: Owner may suspend the Project for up to 90 days upon seven days written notice to Engineer. 2. By Engineer: Engineer may, after giving seven days written notice to Owner, suspend services under this Agreement if Owner has failed to pay Engineer for invoiced services and expenses, as set forth in Paragraph 4.02.B, or in response to the presence of Constituents of Concern at the Site, as set forth in Paragraph 6.10.D. B. Termination: The obligation to provide further services under this Agreement may be terminated: 1. For cause, a. by either party upon 30 days written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party. b. by Engineer: 1) upon seven days written notice if Owner demands that Engineer furnish or perform services contrary to Engineer’s responsibilities as a licensed professional; or 35 EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 9 2) upon seven days written notice if the Engineer’s services for the Project are delayed or suspended for more than 90 days for reasons beyond Engineer’s control, or as the result of the presence at the Site of undisclosed Constituents of Concern, as set forth in Paragraph 6.10.D. 3) Engineer shall have no liability to Owner on account of such termination. c. Notwithstanding the foregoing, this Agreement will not terminate under Paragraph 6.06.B.1.a if the party receiving such notice begins, within seven days of receipt of such notice, to correct its substantial failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt thereof; provided, however, that if and to the extent such substantial failure cannot be reasonably cured within such 30 day period, and if such party has diligently attempted to cure the same and thereafter continues diligently to cure the same, then the cure period provided for herein shall extend up to, but in no case more than, 60 days after the date of receipt of the notice. 2. For convenience, by Owner effective upon Engineer’s receipt of notice from Owner. C. Effective Date of Termination: The terminating party under Paragraph 6.06.B may set the effective date of termination at a time up to 30 days later than otherwise provided to allow Engineer to demobilize personnel and equipment from the Site, to complete tasks whose value would otherwise be lost, to prepare notes as to the status of completed and uncompleted tasks, and to assemble Project materials in orderly files. D. Payments Upon Termination: 1. In the event of any termination under Paragraph 6.06, Engineer will be entitled to invoice Owner and to receive full payment for all services performed or furnished in accordance with this Agreement and all Reimbursable Expenses incurred through the effective date of termination. Upon making such payment, Owner shall have the limited right to the use of Documents, at Owner’s sole risk, subject to the provisions of Paragraph 6.03. 2. In the event of termination by Owner for convenience or by Engineer for cause, Engineer shall be entitled, in addition to invoicing for those items identified in Paragraph 6.06.D.1, to invoice Owner and receive payment of a reasonable amount for services and expenses directly attributable to termination, both before and after the effective date of termination, such as reassignment of personnel, costs of terminating contracts with Engineer’s Consultants, and other related close-out costs, using methods and rates for Additional Services as set forth in Exhibit C. 6.07 Controlling Law A. This Agreement is to be governed by the Laws and Regulations of the state in which the Project is located. 36 EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 10 6.08 Successors, Assigns, and Beneficiaries A. Owner and Engineer are hereby bound and the successors, executors, administrators, and legal representatives of Owner and Engineer (and to the extent permitted by Paragraph 6.08.B the assigns of Owner and Engineer) are hereby bound to the other party to this Agreement and to the successors, executors, administrators and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements, and obligations of this Agreement. B. Neither Owner nor Engineer may assign, sublet, or transfer any rights under or interest (including, but without limitation, money that is due or may become due) in this Agreement without the written consent of the other party, except to the extent that any assignment, subletting, or transfer is mandated by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. C. Unless expressly provided otherwise in this Agreement: 1. Nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by Owner or Engineer to any Constructor, other third-party individual or entity, or to any surety for or employee of any of them. 2. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of Owner and Engineer and not for the benefit of any other party. 3. Owner agrees that the substance of the provisions of this Paragraph 6.08.C shall appear in the Construction Contract Documents. 6.09 Dispute Resolution A. Owner and Engineer agree to negotiate all disputes between them in good faith for a period of 30 days from the date of notice prior to invoking the procedures of Exhibit H or other provisions of this Agreement, or exercising their rights at law. B. If the parties fail to resolve a dispute through negotiation under Paragraph 6.09.A, then either or both may invoke the procedures of Exhibit H. If Exhibit H is not included, or if no dispute resolution method is specified in Exhibit H, then the parties may exercise their rights at law. 6.10 Environmental Condition of Site A. Owner represents to Engineer that as of the Effective Date to the best of Owner’s knowledge no Constituents of Concern, other than those disclosed in writing to Engineer, exist at or adjacent to the Site. B. If Engineer encounters or learns of an undisclosed Constituent of Concern at the Site, then Engineer shall notify (1) Owner and (2) appropriate governmental officials if Engineer reasonably concludes that doing so is required by applicable Laws or Regulations. 37 EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 11 C. It is acknowledged by both parties that Engineer’s scope of services does not include any services related to unknown or undisclosed Constituents of Concern. If Engineer or any other party encounters, uncovers, or reveals an undisclosed Constituent of Concern, then Owner shall promptly determine whether to retain a qualified expert to evaluate such condition or take any necessary corrective action. D. If investigative or remedial action, or other professional services, are necessary with respect to undisclosed Constituents of Concern, or if investigative or remedial action beyond that reasonably contemplated is needed to address a disclosed or known Constituent of Concern, then Engineer may, at its option and without liability for consequential or any other damages, suspend performance of services on the portion of the Project affected thereby until such portion of the Project is no longer affected. E. If the presence at the Site of undisclosed Constituents of Concern adversely affects the performance of Engineer’s services under this Agreement, then the Engineer shall have the option of (1) accepting an equitable adjustment in its compensation or in the time of completion, or both; or (2) terminating this Agreement for cause on seven days notice. F. Owner acknowledges that Engineer is performing professional services for Owner and that Engineer is not and shall not be required to become an "owner," “arranger,” “operator,” “generator,” or “transporter” of hazardous substances, as defined in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as amended, which are or may be encountered at or near the Site in connection with Engineer’s activities under this Agreement. 6.11 Indemnification and Mutual Waiver A. Indemnification by Engineer: To the fullest extent permitted by Laws and Regulations legally allowed, Engineer shall indemnify and hold harmless Owner, and Owner’s officers, directors, members, partners, agents, consultants, and employees, from losses, damages, and judgments (including reasonable consultants’ and attorneys’ fees and expenses) arising from third-party claims or actions relating to the Project, provided that any such claim, action, loss, damages, or judgment is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom, but only to the extent caused by any negligent act or omission of Engineer or Engineer’s officers, directors, members, partners, agents, employees, or Consultants. This indemnification provision is subject to and limited by the provisions, if any, agreed to by Owner and Engineer in Exhibit I, “Limitations of Liability." B. Indemnification by Owner: To the fullest extent legally allowed, Owner shall indemnify and hold harmless Engineer and its officers, directors, members, partners, agents, employees, and Consultants as required by Laws and Regulations. and to the extent (if any) required in Exhibit I, “Limitations of Liability.” C. Environmental Indemnification: To the fullest extent permitted by Laws and Regulations, Owner shall indemnify and hold harmless Engineer and its officers, directors, members, partners, agents, employees, and Consultants from all claims, costs, losses, damages, actions, and judgments (including reasonable consultants’ and attorneys fees and 38 EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 12 expenses) caused by, arising out of, relating to, or resulting from a Constituent of Concern at, on, or under the Site, provided that (1) any such claim, cost, loss, damages, action, or judgment is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom, and (2) nothing in this paragraph shall obligate Owner to indemnify any individual or entity from and against the consequences of that individual's or entity's own negligence or willful misconduct. D. No Defense Obligation: The indemnification commitments in this Agreement do not include a defense obligation by the indemnitor unless such obligation is expressly stated. E. Percentage Share of Negligence: To the fullest extent permitted by Laws and Regulations legally allowed, a party’s total liability to the other party and anyone claiming by, through, or under the other party for any cost, loss, or damages caused in part by the negligence of the party and in part by the negligence of the other party or any other negligent entity or individual, shall not exceed the percentage share that the party’s negligence bears to the total negligence of Owner, Engineer, and all other negligent entities and individuals. F. Mutual Waiver: To the fullest extent permitted by Laws and Regulations legally allowed, Owner and Engineer waive against each other, and the other’s employees, officers, directors, members, agents, insurers, partners, and consultants, any and all claims for or entitlement to special, incidental, indirect, or consequential damages arising out of, resulting from, or in any way related to this Agreement or the Project, from any cause or causes. 6.12 Records Retention A. Engineer shall maintain on file in legible form, for a period of five years following completion or termination of its services, all Documents, records (including cost records), and design calculations related to Engineer’s services or pertinent to Engineer’s performance under this Agreement. Upon Owner’s request, Engineer shall provide a copy of any such item to Owner at cost. 6.13 Miscellaneous Provisions A. Notices: Any notice required under this Agreement will be in writing, addressed to the appropriate party at its address on the signature page and given personally, by registered or certified mail postage prepaid, or by a commercial courier service. All notices shall be effective upon the date of receipt. B. Survival: All express representations, waivers, indemnifications, and limitations of liability included in this Agreement will survive its completion or termination for any reason. C. Severability: Any provision or part of the Agreement held to be void or unenforceable under any Laws or Regulations shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon Owner and Engineer, which agree that the Agreement shall be reformed to replace such stricken provision or part thereof with a 39 EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 13 valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. D. Waiver: A party’s non-enforcement of any provision shall not constitute a waiver of that provision, nor shall it affect the enforceability of that provision or of the remainder of this Agreement. E. Accrual of Claims: To the fullest extent permitted by Laws and Regulations legally allowed, all causes of action arising under this Agreement shall be deemed to have accrued, and all statutory periods of limitation shall commence, no later than the date of Substantial Completion. F. Colorado Governmental Immunity Act: The parties hereto understand and agree that the Owner is relying on, and does not waive or intend to waive by any provision in this Agreement, the monetary limitations or any other rights, immunities and protections provided by the Colorado Governmental Immunity Act Section 24-10-101 et seq., C.R.S., as from time to time amended, or otherwise available to the Owner, its officers, employees or agents. G. Annual Appropriations: Nothing herein shall constitute a multiple fiscal year obligation of the Owner pursuant to the Colorado Constitution, Article X, and Section 20. Notwithstanding any other provision of this Agreement, the Owner’s obligations under this Agreement are subject to annual appropriation by the Town Board. Any failure of the Town Board annually to appropriate adequate monies to finance the Owner’s obligations under this Agreement shall terminate this Agreement at such time as such then-existing appropriations are to be depleted. Notice shall be promptly given to Engineer of any failure to appropriate such adequate monies. ARTICLE 7 – DEFINITIONS 7.01 Defined Terms A. Wherever used in this Agreement (including the Exhibits hereto) terms (including the singular and plural forms) printed with initial capital letters have the meanings indicated in the text above, in the exhibits, or in the following definitions: 1. Addenda—Written or graphic instruments issued prior to the opening of bids which clarify, correct, or change the bidding requirements or the proposed Construction Contract Documents. 2. Additional Services—The services to be performed for or furnished to Owner by Engineer in accordance with Part 2 of Exhibit A of this Agreement. 3. Agreement—This written contract for professional services between Owner and Engineer, including all exhibits identified in Paragraph 8.01 and any duly executed amendments. 4. Application for Payment—The form acceptable to Engineer which is to be used by Contractor during the course of the Work in requesting progress or final payments and 40 EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 14 which is to be accompanied by such supporting documentation as is required by the Construction Contract. 5. Basic Services—The services to be performed for or furnished to Owner by Engineer in accordance with Part 1 of Exhibit A of this Agreement. 6. Change Order—A document which is signed by Contractor and Owner and authorizes an addition, deletion, or revision in the Work or an adjustment in the Construction Contract Price or the Construction Contract Times, or other revision to the Construction Contract, issued on or after the effective date of the Construction Contract. 7. Change Proposal—A written request by Contractor, duly submitted in compliance with the procedural requirements set forth in the Construction Contract, seeking an adjustment in Construction Contract Price or Construction Contract Times, or both; contesting an initial decision by Engineer concerning the requirements of the Construction Contract Documents or the acceptability of Work under the Construction Contract Documents; challenging a set-off against payments due; or seeking other relief with respect to the terms of the Construction Contract. 8. Constituent of Concern—Asbestos, petroleum, radioactive material, polychlorinated biphenyls (PCBs), hazardous waste, and any substance, product, waste, or other material of any nature whatsoever that is or becomes listed, regulated, or addressed pursuant to (a) the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§9601 et seq. (“CERCLA”); (b) the Hazardous Materials Transportation Act, 49 U.S.C. §§5501 et seq.; (c) the Resource Conservation and Recovery Act, 42 U.S.C. §§6901 et seq. (“RCRA”); (d) the Toxic Substances Control Act, 15 U.S.C. §§2601 et seq.; (e) the Clean Water Act, 33 U.S.C. §§1251 et seq.; (f) the Clean Air Act, 42 U.S.C. §§7401 et seq.; or (g) any other federal, State, or local statute, law, rule, regulation, ordinance, resolution, code, order, or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic, or dangerous waste, substance, or material. 9. Construction Contract—The entire and integrated written contract between the Owner and Contractor concerning the Work. 10. Construction Contract Documents—Those items designated as “Contract Documents” in the Construction Contract, and which together comprise the Construction Contract. 11. Construction Contract Price—The money that Owner has agreed to pay Contractor for completion of the Work in accordance with the Construction Contract Documents. 12. Construction Contract Times—The number of days or the dates by which Contractor shall: (a) achieve milestones, if any, in the Construction Contract; (b) achieve Substantial Completion; and (c) complete the Work. 13. Construction Cost—The cost to Owner of the construction of those portions of the entire Project designed or specified by or for Engineer under this Agreement, including construction labor, services, materials, equipment, insurance, and bonding costs, and allowances for contingencies. Construction Cost does not include costs of services of 41 EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 15 Engineer or other design professionals and consultants; cost of land or rights-of-way, or compensation for damages to property; Owner’s costs for legal, accounting, insurance counseling, or auditing services; interest or financing charges incurred in connection with the Project; or the cost of other services to be provided by others to Owner. Construction Cost is one of the items comprising Total Project Costs. 14. Constructor—Any person or entity (not including the Engineer, its employees, agents, representatives, and Consultants), performing or supporting construction activities relating to the Project, including but not limited to Contractors, Subcontractors, Suppliers, Owner’s work forces, utility companies, other contractors, construction managers, testing firms, shippers, and truckers, and the employees, agents, and representatives of any or all of them. 15. Consultants—Individuals or entities having a contract with Engineer to furnish services with respect to this Project as Engineer’s independent professional associates and consultants; subcontractors; or vendors. 16. Contractor—The entity or individual with which Owner enters into a Construction Contract. 17. Documents—Data, reports, Drawings, Specifications, Record Drawings, building information models, civil integrated management models, and other deliverables, whether in printed or electronic format, provided or furnished in appropriate phases by Engineer to Owner pursuant to this Agreement. 18. Drawings—That part of the Construction Contract Documents that graphically shows the scope, extent, and character of the Work to be performed by Contractor. 19. Effective Date—The date indicated in this Agreement on which it becomes effective, but if no such date is indicated, the date on which this Agreement is signed and delivered by the last of the parties to sign and deliver. 20. Engineer—The individual or entity named as such in this Agreement. 21. Field Order—A written order issued by Engineer which requires minor changes in the Work but does not change the Construction Contract Price or the Construction Contract Times. 22. Laws and Regulations; Laws or Regulations—Any and all applicable laws, statutes, rules, regulations, ordinances, codes, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 23. Owner—The individual or entity named as such in this Agreement and for which Engineer's services are to be performed. Unless indicated otherwise, this is the same individual or entity that will enter into any Construction Contracts concerning the Project. 24. Project—The total undertaking to be accomplished for Owner by engineers, contractors, and others, including planning, study, design, construction, testing, commissioning, and 42 EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 16 start-up, and of which the services to be performed or furnished by Engineer under this Agreement are a part. 25. Record Drawings—Drawings depicting the completed Project, or a specific portion of the completed Project, prepared by Engineer as an Additional Service and based on Contractor's record copy of all Drawings, Specifications, Addenda, Change Orders, Work Change Directives, Field Orders, and written interpretations and clarifications, as delivered to Engineer and annotated by Contractor to show changes made during construction. 26. Reimbursable Expenses—The expenses incurred directly by Engineer in connection with the performing or furnishing of Basic Services and Additional Services for the Project. 27. Resident Project Representative—The authorized representative of Engineer assigned to assist Engineer at the Site during the Construction Phase. As used herein, the term Resident Project Representative or "RPR" includes any assistants or field staff of Resident Project Representative. The duties and responsibilities of the Resident Project Representative, if any, are as set forth in Exhibit D. 28. Samples—Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and that establish the standards by which such portion of the Work will be judged. 29. Shop Drawings—All drawings, diagrams, illustrations, schedules, and other data or information that are specifically prepared or assembled by or for Contractor and submitted by Contractor to illustrate some portion of the Work. Shop Drawings, whether approved or not, are not Drawings and are not Construction Contract Documents. 30. Site—Lands or areas to be indicated in the Construction Contract Documents as being furnished by Owner upon which the Work is to be performed, including rights-of-way and easements, and such other lands furnished by Owner which are designated for the use of Contractor. 31. Specifications—The part of the Construction Contract Documents that consists of written requirements for materials, equipment, systems, standards, and workmanship as applied to the Work, and certain administrative requirements and procedural matters applicable to the Work. 32. Subcontractor—An individual or entity having a direct contract with Contractor or with any other Subcontractor for the performance of a part of the Work. 33. Substantial Completion—The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of Engineer and the Owner, the Work (or a specified part thereof) is sufficiently complete, in accordance with the Construction Contract Documents, so that the Work (or a specified part thereof) can be utilized for the purposes for which it is intended. The terms “substantially complete” and “substantially completed” as applied to all or part of the Work refer to Substantial Completion thereof. 43 EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 17 34. Supplier—A manufacturer, fabricator, supplier, distributor, materialman, or vendor having a direct contract with Contractor or with any Subcontractor to furnish materials or equipment to be incorporated in the Work by Contractor or a Subcontractor. 35. Total Project Costs—The total cost of planning, studying, designing, constructing, testing, commissioning, and start-up of the Project, including Construction Cost and all other Project labor, services, materials, equipment, insurance, and bonding costs, allowances for contingencies, and the total costs of services of Engineer or other design professionals and consultants, together with such other Project-related costs that Owner furnishes for inclusion, including but not limited to cost of land, rights-of-way, compensation for damages to properties, Owner’s costs for legal, accounting, insurance counseling, and auditing services, interest and financing charges incurred in connection with the Project, and the cost of other services to be provided by others to Owner. 36. Work—The entire construction or the various separately identifiable parts thereof required to be provided under the Construction Contract Documents. Work includes and is the result of performing or providing all labor, services, and documentation necessary to produce such construction; furnishing, installing, and incorporating all materials and equipment into such construction; and may include related services such as testing, start-up, and commissioning, all as required by the Construction Contract Documents. 37. Work Change Directive—A written directive to Contractor issued on or after the effective date of the Construction Contract, signed by Owner and recommended by Engineer, ordering an addition, deletion, or revision in the Work. 38. Agency–The Rural Utilities Service or any designated representative of Rural Utilities Service, including USDA, Rural Development. B. Day: 1. The word “day” means a calendar day of 24 hours measured from midnight to the next midnight. ARTICLE 8 – EXHIBITS AND SPECIAL PROVISIONS 8.01 Exhibits Included: A. Exhibit A, Engineer’s Services. B. Exhibit B, Owner’s Responsibilities. C. Exhibit C, Payments to Engineer for Services and Reimbursable Expenses. D. Exhibit D, Duties, Responsibilities and Limitations of Authority of Resident Project Representative. E. Exhibit E, Notice of Acceptability of Work. F. Exhibit F, Construction Cost Limit. NOT USED 44 EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 18 G. Exhibit G, Insurance. H. Exhibit H, Dispute Resolution. I. Exhibit I, Limitations of Liability. NOT USED J. Exhibit J, Special Provisions. NOT USED K. Exhibit K, Amendment to Owner-Engineer Agreement. 8.02 Total Agreement A. This Agreement, (together with the exhibits included above) constitutes the entire agreement between Owner and Engineer and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified, or canceled by a written instrument duly executed by both parties. Amendments should be based whenever possible on the format of Exhibit K to this Agreement. 8.03 Designated Representatives A. With the execution of this Agreement, Engineer and Owner shall designate specific individuals to act as Engineer’s and Owner’s representatives with respect to the services to be performed or furnished by Engineer and responsibilities of Owner under this Agreement. Such an individual shall have authority to transmit instructions, receive information, and render decisions relative to this Agreement on behalf of the respective party whom the individual represents. 8.04 Engineer's Certifications A. Engineer certifies that it has not engaged in corrupt, fraudulent, or coercive practices in competing for or in executing the Agreement. For the purposes of this Paragraph 8.04: 1. "corrupt practice" means the offering, giving, receiving, or soliciting of any thing of value likely to influence the action of a public official in the selection process or in the Agreement execution; 2. "fraudulent practice" means an intentional misrepresentation of facts made (a) to influence the selection process or the execution of the Agreement to the detriment of Owner, or (b) to deprive Owner of the benefits of free and open competition; 3. "coercive practice" means harming or threatening to harm, directly or indirectly, persons or their property to influence their participation in the selection process or affect the execution of the Agreement. 8.05 Federal Requirements A. Agency Concurrence. Signature of a duly authorized representative of the Agency in the space provided on the signature page of EJCDC form E-500 hereof does not constitute a commitment to provide financial assistance or payments hereunder but does signify that this Agreement conforms to Agency’s applicable requirements. This Agreement shall not be effective unless the Funding Agency’s designated representative concurs. No 45 EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 19 amendment to this Agreement shall be effective unless the Funding Agency’s designated representative concurs. B. Audit and Access to Records. Owner, Agency, the Comptroller General of the United States, or any of their duly authorized representatives, shall have access to any books, documents, papers, and records of the Engineer which are pertinent to the Agreement, for the purpose of making audits, examinations, excerpts, and transcriptions. Engineer shall maintain all required records for three years after final payment is made and all other pending matters are closed. C. Restrictions on Lobbying. Engineer and each Consultant shall comply with “Byrd anti- lobbying amendment (31 U.S.C. 1352)” if they are recipients of engineering services contracts and subcontracts that exceed $100,000 at any tier. If applicable, Engineer must complete a certification form on lobbying activities related to a specific Federal loan or grant that is a funding source for this Agreement. 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, or an employee of a member of Congress in connection with obtaining any Federal contract, grant, or any other applicable award. Each tier shall disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Certifications and disclosures are forwarded from tier to tier up to the Owner. Necessary certification and disclosure forms shall be provided by Owner. D. Suspension and Debarment. Engineer certifies, by signing this Agreement, that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in this transaction by any Federal department or agency. Engineer will not contract with any Consultant for this project if it or its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. Necessary certification forms shall be provided by the Owner. The Engineer will complete and submit a form AD-1048, “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion – lower tier transactions,” to the Owner who will forward it to USDA, Rural Development processing office. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on page 1. Owner: Town of Estes Park Engineer: JVA, Incorporated By: By: Print name: Todd Jirsa Print name: Josh J. McGibbon Title: Mayor Title: Vice President Date Signed: Date Signed: 09/16/2019 46 EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 20 Engineer License or Firm's Certificate No. (if required): PE.0040279 State of: Colorado Address for Owner’s receipt of notices: Address for Engineer’s receipt of notices: 170 MacGregor Ave PO Box 1200 1319 Spruce Street Estes Park, CO 80517 Boulder, CO 80302 Designated Representative (Paragraph 8.03.A): Designated Representative (Paragraph 8.03.A): Reuben Bergsten Josh J. McGibbon Title: Utilities Director Title: Vice President Phone Number: 970-577-3583 Phone Number: 970-225-9099 E-Mail Address: RBergsten@Estes.org E-Mail Address: jmcgibbon@jvajva.com 47 RUS Bulletin 1780-26 Exhibit C Page 1 RUS CERTIFICATION PAGE PROJECT NAME:__________________________________________________________ The Engineer and Owner hereby concur in the Funding Agency required revisions to E-500 (2014). In addition, Engineer certifies to the following: All modifications required by RUS Bulletin 1780-26 have been made in accordance with the terms of the license agreement, which states in part that the Engineer “must plainly show all changes to the Standard EJCDC Text, using ‘Track Changes’ (redline/strikeout), highlighting, or other means of clearly indicating additions and deletions.” Such other means may include attachments indicating changes (e.g. Supplementary Conditions modifying the General Conditions). SUMMARY OF ENGINEERING FEES Note that the fees indicated on this table are only a summary and if there is a conflict with any provision of Exhibit C, the provisions there overrule the values on this table. Fees shown in will not be exceeded without the concurrence of the Agency. Basic Services $_______________________ Resident Project Observation $_______________________ Additional Services $_______________________ TOTAL: $_______________________ 48 RUS Bulletin 1780-26 Exhibit C Page 2 Any adjustments to engineering fees or changes to maximum estimated values must be approved by the Agency and must include a table of what specific category or categories of fees are being changed, what fees were before and after the change, and the resulting total fee. Engineer Date Name and Title Owner Date Name and Title Agency Concurrence: As lender or insurer of funds to defray the costs of this Contract, and without liability for any payments thereunder, the Agency hereby concurs in the form, content, and execution of this Agreement. Agency Representative Date Name and Title 49 Exhibit A – Engineer’s Services EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 This is EXHIBIT A, consisting of [ 17 ] pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated [ ]. Engineer’s Services Article 1 of the Agreement is supplemented to include the following agreement of the parties. Engineer shall provide Basic and Additional Services as set forth below. PART 1 – BASIC SERVICES A1.01 Study and Report Phase NOT USED A1.02 Preliminary Design Phase A. After acceptance by Owner and concurrence by Agency of the Report and any other Study and Report Phase deliverables; selection by Owner of a recommended solution; issuance by Owner of any instructions of for use of Project Strategies, Technologies, and Techniques, or for inclusion of sustainable features in the design; and indication by Owner of any specific modifications or changes in the scope, extent, character, or design requirements of the Project desired by Owner, (1) Engineer and Owner shall discuss and resolve any necessary revisions to Engineer’s compensation (through application of the provisions regarding Additional Services, or otherwise), or the time for completion of Engineer’s services, resulting from the selected solution, related Project Strategies, Technologies, or Techniques, sustainable design instructions, or specific modifications to the Project, and (2) upon written authorization from Owner, Engineer shall: 1. Prepare Preliminary Design Phase documents consisting of final design criteria, preliminary drawings, outline specifications, and written descriptions of the Project. 2. In preparing the Preliminary Design Phase documents, use any specific applicable Project Strategies, Technologies, and Techniques authorized by Owner and Agency during or following the Study and Report Phase, and include sustainable features, as appropriate, pursuant to Owner’s instructions. 3. Provide necessary field surveys and topographic and utility mapping for Engineer’s design purposes. Comply with the scope of work and procedure for the identification and mapping of existing utilities selected and authorized by Owner pursuant to advice from Engineer based on ASCE 38, “Standard Guideline for the Collection and Depiction of Existing Subsurface Utility Data,” as set forth in Paragraph A1.01.A.12 above. If no such scope of work and procedure for utility mapping has been selected and authorized, then at a minimum the utility mapping will include Engineer contacting utility owners and obtaining available information. 4. Visit the Site as needed to prepare the Preliminary Design Phase documents. 50 Exhibit A – Engineer’s Services EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 2 5. Advise Owner if additional reports, data, information, or services of the types described in Exhibit B are necessary and assist Owner in obtaining such reports, data, information, or services. 6. Continue to assist Owner with Project Strategies, Technologies, and Techniques that Owner has chosen to implement. 7. Based on the information contained in the Preliminary Design Phase documents, prepare a revised opinion of probable Construction Cost, and assist Owner in tabulating the various cost categories which comprise Total Project Costs. 8. Obtain and review Owner’s instructions regarding Owner’s procurement of construction services (including instructions regarding advertisements for bids, instructions to bidders, and requests for proposals, as applicable), Owner’s construction contract practices and requirements, insurance and bonding requirements, electronic transmittals during construction, and other information necessary for the finalization of Owner’s bidding-related documents (or requests for proposals or other construction procurement documents), and Construction Contract Documents. Also obtain and review copies of Owner’s design and construction standards, Owner’s standard forms, general conditions (if other than EJCDC® C-700, Standard General Conditions of the Construction Contract, 2013 Edition), supplementary conditions, text, and related documents or content for Engineer to include in the draft bidding-related documents (or requests for proposals or other construction procurement documents), and in the draft Construction Contract Documents, when applicable. Engineer must also incorporate all Agency regulations, forms, and design and construction standards applicable to the project in development of the documents indicated in this Article. 9. Perform or provide the following other Preliminary Design Phase tasks or deliverables: a. Prepare and submit a Colorado Department of Public Health and Environment (CDPHE) required Basis of Design Report (BDR) for the new water storage tank only. 10. Furnish [ electronic ] review copies of the Preliminary Design Phase documents, opinion of probable Construction Cost, and any other Preliminary Design Phase deliverables to Owner within [ 210 ] days of authorization to proceed with this phase, and review them with Owner. Within [ 30 ] days of receipt, Owner shall submit to Engineer any comments regarding the furnished items. 11. Revise the Preliminary Design Phase documents, opinion of probable Construction Cost, and any other Preliminary Design Phase deliverables in response to Owner’s comments, as appropriate, and furnish to Owner [ electronic ] copies of the revised Preliminary Design Phase documents, revised opinion of probable Construction Cost, and any other deliverables within [ 14 ] days after receipt of Owner’s comments. B. Engineer’s services under the Preliminary Design Phase will be considered complete on the date when Engineer has delivered to Owner the revised Preliminary Design Phase documents, revised opinion of probable Construction Cost, and any other Preliminary Design Phase deliverables. 51 Exhibit A – Engineer’s Services EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 3 A1.03 Final Design Phase A. After acceptance by Owner of the Preliminary Design Phase documents, revised opinion of probable Construction Cost as determined in the Preliminary Design Phase, and any other Preliminary Design Phase deliverables, subject to any Owner-directed modifications or changes in the scope, extent, character, or design requirements of or for the Project, and upon written authorization from Owner, Engineer shall: 1. Prepare final Drawings and Specifications indicating the scope, extent, and character of the Work to be performed and furnished by Contractor. 2. Visit the Site as needed to assist in preparing the final Drawings and Specifications. 3. Provide technical criteria, written descriptions, and design data for Owner’s use in filing applications for permits from or approvals of governmental authorities having jurisdiction to review or approve the final design; assist Owner in consultations with such authorities; and revise the Drawings and Specifications in response to directives from such authorities, as appropriate. 4. Advise Owner of any recommended adjustments to the opinion of probable Construction Cost. 5. After consultation with Owner, include in the Construction Contract Documents any specific protocols for the transmittal of Project-related correspondence, documents, text, data, drawings, information, and graphics, in electronic media or digital format, either directly, or through access to a secure Project website. Any such protocols shall be applicable to transmittals between and among Owner, Engineer, and Contractor during the Construction Phase and Post-Construction Phase, and unless agreed otherwise shall supersede any conflicting protocols previously established for transmittals between Owner and Engineer. 6. Assist Owner in assembling known reports and drawings of Site conditions, and in identifying the technical data contained in such reports and drawings upon which bidders or other prospective contractors may rely. 7. In addition to preparing the final Drawings and Specifications, assemble drafts of other Construction Contract Documents based on specific instructions and contract forms, text, or content received from Owner. 8. Prepare or assemble draft bidding-related documents (or requests for proposals or other construction procurement documents), based on the specific bidding or procurement- related instructions and forms, text, or content received from Owner. 9. Perform or provide the following other Final Design Phase tasks or deliverables: a. The Engineer shall identify the building codes and accessibility standards used in the design and indicate them on the drawings and specifications and certify that the final drawings and specifications comply with those standards. 52 Exhibit A – Engineer’s Services EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 4 10. Furnish for review by Owner, its legal counsel and Agency, and other advisors, [electronic] copies of the final Drawings and Specifications, assembled drafts of other Construction Contract Documents, the draft bidding-related documents (or requests for proposals or other construction procurement documents), and any other Final Design Phase deliverables, within [ 90 ] days of authorization to proceed with the Final Design Phase, and review them with Owner. Within [ 30 ] days of receipt, Owner shall submit to Engineer any comments regarding the furnished items, and any instructions for revisions. 11. Revise the final Drawings and Specifications, assembled drafts of other Construction Contract Documents, the draft bidding-related documents (or requests for proposals or other construction procurement documents), and any other Final Design Phase deliverables in accordance with comments and instructions from the Owner, as appropriate, and submit [ 3 ] final copies of such documents to Owner within [ 21 ] days after receipt of Owner’s comments and instructions. 12. Provide the Owner and Agency with a written certification that the final Drawings and Specifications, other assembled Construction Contract Documents, bidding-related documents (or requests for proposals or other construction procurement documents), and any other Final Design Phase deliverables comply with all requirements of Agency. Use the Engineer’s Certification of Final Plans and Specifications (RUS Bulletin 1780-26, Exhibit J) for this purpose.” 13. Services required to determine and certify that the best of the Engineer’s knowledge and belief all iron and steel products referenced in engineering analysis, the Plans, Specifications, Bidding Documents, and associated Bid Addenda requiring design revisions are either produced in the United States or are the subject of an approved waiver; and services required to determine the best of the engineer’s knowledge and belief that approved substitutes, equals, and all iron and steel products proposed in the shop drawings, Change Orders and Partial Payment Estimates are either produced in the United States or are the subject of an approved waiver under Section 746 of Title VII of the Consolidated Appropriations Act of 2017 (Division A – Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2017) and subsequent statues mandating domestic preference. The term “iron and steel products” means the following products made primarily of iron or steel; lined or unlined pipes and fittings, manhole covers and other municipal castings, hydrants, tanks, flanges, pipe clams and restraints, valves, structural steel, reinforced precast concrete, and construction materials. The deminimis and minor components waiver apply to this contract. B. Engineer’s services under the Final Design Phase will be considered complete on the date when Engineer has delivered to Owner the final Drawings and Specifications, other assembled Construction Contract Documents, bidding-related documents (or requests for proposals or other construction procurement documents), and any other Final Design Phase deliverables and all final design phase deliverables have been accepted by Owner. C. In the event that the Work designed or specified by Engineer is to be performed or furnished under more than one prime contract, or if Engineer’s services are to be separately sequenced with the work of one or more prime Contractors (such as in the case of fast-tracking), Owner 53 Exhibit A – Engineer’s Services EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 5 and Engineer shall, prior to commencement of the Final Design Phase, develop a schedule for performance of Engineer’s services during the Final Design, Bidding or Negotiating, Construction, and Post-Construction Phases in order to sequence and coordinate properly such services as are applicable to the work under such separate prime contracts. This schedule is to be prepared and included in or become an amendment to Exhibit A whether or not the work under such contracts is to proceed concurrently. D. The number of prime contracts for Work designed or specified by Engineer upon which the Engineer’s compensation has been established under this Agreement is [ 1 ]. If more prime contracts are awarded, Engineer shall be entitled to an equitable increase in its compensation under this Agreement. A1.04 Bidding or Negotiating Phase A. After acceptance by Owner of the final Drawings and Specifications, other Construction Contract Documents, bidding-related documents (or requests for proposals or other construction procurement documents), and the most recent opinion of probable Construction Cost as determined in the Final Design Phase, and upon written authorization by Owner to proceed, Engineer shall: 1. Assist Owner in advertising for and obtaining bids or proposals for the Work, assist Owner in issuing assembled design, contract, and bidding-related documents (or requests for proposals or other construction procurement documents) to prospective contractors, and, where applicable, maintain a record of prospective contractors to which documents have been issued, attend pre-bid conferences, if any, and receive and process contractor deposits or charges for the issued documents. 2. Prepare and issue Addenda as appropriate to clarify, correct, or change the issued documents. Obtain Agency concurrence on any addenda that modify the bidding documents. Obtain prior concurrence where possible. 3. Provide information or assistance needed by Owner in the course of any review of proposals or negotiations with prospective contractors. 4. Consult with Owner as to the qualifications of prospective contractors. 5. Consult with Owner as to the qualifications of subcontractors, suppliers, and other individuals and entities proposed by prospective contractors, for those portions of the Work as to which review of qualifications is required by the issued documents. 6. The Engineer shall evaluate and determine the acceptability of “or equals” and substitute materials and equipment proposed by prospective contractors prior to award of contracts for the Work. Engineer shall issue a bid addendum for any and all approved “or equals” and substitutes. Review of substitutes and “or equals” shall be in accordance with the General Conditions of the Construction Contract and applicable Agency regulations. Services under this paragraph are subject to the provisions of Paragraph A2.02.A.2 of this Exhibit A. If the issued documents require, the Engineer shall evaluate and determine the acceptability of "or equals" and substitute materials and equipment proposed by prospective contractors, provided that such proposals are 54 Exhibit A – Engineer’s Services EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 6 allowed by the bidding-related documents (or requests for proposals or other construction procurement documents) prior to award of contracts for the Work. Services under this paragraph are subject to the provisions of Paragraph A2.02.A.2 of this Exhibit A. 7. Attend the bid opening, prepare bid tabulation sheets to meet Owner’s schedule, and assist Owner in evaluating bids or proposals, assembling final contracts for the Work for execution by Owner and Contractor, and in issuing notices of award of such contracts. 8. If Owner engages in negotiations with bidders or proposers, assist Owner with respect to technical and engineering issues that arise during the negotiations. 9. Perform or provide the following other Bidding or Negotiating Phase tasks or deliverables: a. Upon award of the Construction Contract, the Engineer shall furnish to Owner five executed copies of the Contract Documents and one electronic copy of the signed documents, including Drawings and Specifications. 10. Provide copies of Manufacturers’ Certification letters to the Bidders on any brand name iron and steel products along with the Plans, Specifications and Bidding Documents. Manufacturers’ Certification Letters are to be included in the Bidding Documents and must be kept in the engineer’s project file and on site during construction. 11. Provide copies of Manufacturers’ Certification letters to the Contractor on any brand name iron and steel products along with the Plans, Specifications, Bidding Documents including any Bid Addenda and Change Orders. Manufacturers’ Certification Letters must be kept in the engineer’s project file and on site during construction. B. The Bidding or Negotiating Phase will be considered complete upon commencement of the Construction Phase or upon cessation of negotiations with prospective contractors (except as may be required if Exhibit F is a part of this Agreement). A1.05 Construction Phase A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from Owner, Engineer shall: 1. General Administration of Construction Contract: Consult with Owner and act as Owner’s representative as provided in the Construction Contract. The extent and limitations of the duties, responsibilities, and authority of Engineer shall be as assigned in EJCDC® C-700, Standard General Conditions of the Construction Contract (2013 Edition), prepared by the Engineers Joint Contract Documents Committee, or other construction general conditions specified in this Agreement. If Owner, or Owner and Contractor, modify the duties, responsibilities, and authority of Engineer in the Construction Contract, or modify other terms of the Construction Contract having a direct bearing on Engineer, then Owner shall compensate Engineer for any related increases in the cost to provide Construction Phase services. Engineer shall not be 55 Exhibit A – Engineer’s Services EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 7 required to furnish or perform services contrary to Engineer’s responsibilities as a licensed professional. All of Owner’s instructions to Contractor will be issued through Engineer, which shall have authority to act on behalf of Owner in dealings with Contractor to the extent provided in this Agreement and the Construction Contract except as otherwise provided in writing. 2. Resident Project Representative (RPR): Provide the services of an RPR at the Site to assist the Engineer and to provide more extensive observation of Contractor’s work. Duties, responsibilities, and authority of the RPR are as set forth in Exhibit D. The furnishing of such RPR’s services will not limit, extend, or modify Engineer’s responsibilities or authority except as expressly set forth in Exhibit D. 3. Selection of Independent Testing Laboratory: Assist Owner in the selection of an independent testing laboratory to perform the services identified in Exhibit B, Paragraph B2.01. 4. Pre-Construction Conference: Participate in and chair a pre-construction conference prior to commencement of Work at the Site. 5. Electronic Transmittal Protocols: If the Construction Contract Documents do not specify protocols for the transmittal of Project-related correspondence, documents, text, data, drawings, information, and graphics, in electronic media or digital format, either directly, or through access to a secure Project website, then together with Owner and Contractor jointly develop such protocols for transmittals between and among Owner, Contractor, and Engineer during the Construction Phase and Post-Construction Phase. 6. Original Documents: If requested by Owner to do so, m Maintain and safeguard during the Construction Phase at least one original printed record version of the Construction Contract Documents, including Drawings and Specifications signed and sealed by Engineer and other design professionals in accordance with applicable Laws and Regulations. Throughout the Construction Phase, make such original printed record version of the Construction Contract Documents available to Contractor and Owner for review. 7. Schedules: Receive, review, and determine the acceptability of any and all schedules that Contractor is required to submit to Engineer, including the Progress Schedule, Schedule of Submittals, and Schedule of Values. 8. Baselines and Benchmarks: As appropriate, establish baselines and benchmarks for locating the Work which in Engineer’s judgment are necessary to enable Contractor to proceed. 9. Visits to Site and Observation of Construction: In connection with observations of Contractor’s Work while it is in progress: a. Make visits to the Site at intervals appropriate to the various stages of construction, as Engineer deems necessary, to observe as an experienced and qualified design professional the progress of Contractor’s executed Work. Such visits and observations by Engineer, and the Resident Project Representative, if any, are not 56 Exhibit A – Engineer’s Services EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 8 intended to be exhaustive or to extend to every aspect of the Work or to involve detailed inspections of the Work beyond the responsibilities specifically assigned to Engineer in this Agreement and the Construction Contract Documents, but rather are to be limited to spot checking, selective sampling, and similar methods of general observation of the Work based on Engineer’s exercise of professional judgment, as assisted by the Resident Project Representative, if any. Based on information obtained during such visits and observations, Engineer will determine in general if the Work is proceeding in accordance with the Construction Contract Documents, and Engineer shall keep Owner informed of the progress of the Work. b. The purpose of Engineer’s visits to the Site, and representation by the Resident Project Representative, if any, at the Site, will be to enable Engineer to better carry out the duties and responsibilities assigned to and undertaken by Engineer during the Construction Phase, and, in addition, by the exercise of Engineer’s efforts as an experienced and qualified design professional, to provide for Owner a greater degree of confidence that the completed Work will conform in general to the Construction Contract Documents and that Contractor has implemented and maintained the integrity of the design concept of the completed Project as a functioning whole as indicated in the Construction Contract Documents. Engineer shall not, during such visits or as a result of such observations of the Work, supervise, direct, or have control over the Work, nor shall Engineer have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected or used by any Constructor, for security or safety at the Site, for safety precautions and programs incident to any Constructor’s work in progress, for the coordination of the Constructors’ work or schedules, nor for any failure of any Constructor to comply with Laws and Regulations applicable to furnishing and performing of its work. Accordingly, Engineer neither guarantees the performance of any Constructor nor assumes responsibility for any Constructor’s failure to furnish or perform the Work, or any portion of the Work, in accordance with the Construction Contract Documents. c. The visits described in Article A1.05.A.9.a shall be at least monthly and the Engineer shall document all visits to the project with copies furnished to the Owner and Agency. 10. Defective Work: Reject Work if, on the basis of Engineer’s observations, Engineer believes that such Work is defective under the terms and standards set forth in the Construction Contract Documents. Provide recommendations to Owner regarding whether Contractor should correct such Work or remove and replace such Work, or whether Owner should consider accepting such Work as provided in the Construction Contract Documents. 11. Compatibility with Design Concept: If Engineer has express knowledge that a specific part of the Work that is not defective under the terms and standards set forth in the Construction Contract Documents is nonetheless not compatible with the design concept of the completed Project as a functioning whole, then inform Owner of such incompatibility, and provide recommendations for addressing such Work. 57 Exhibit A – Engineer’s Services EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 9 12. Clarifications and Interpretations: Accept from Contractor and Owner submittal of all matters in question concerning the requirements of the Construction Contract Documents (sometimes referred to as requests for information or interpretation—RFIs), or relating to the acceptability of the Work under the Construction Contract Documents. With reasonable promptness, render a written clarification, interpretation, or decision on the issue submitted, or initiate an amendment or supplement to the Construction Contract Documents. 13. Non-reviewable Matters: If a submitted matter in question concerns the Engineer’s performance of its duties and obligations, or terms and conditions of the Construction Contract Documents that do not involve (1) the performance or acceptability of the Work under the Construction Contract Documents, (2) the design (as set forth in the Drawings, Specifications, or otherwise), or (3) other engineering or technical matters, then Engineer will promptly give written notice to Owner and Contractor that Engineer will not provide a decision or interpretation. 14. Field Orders: Subject to any limitations in the Construction Contract Documents, Engineer may prepare and issue Field Orders requiring minor changes in the Work. 15. Change Orders and Work Change Directives: Recommend Change Orders and Work Change Directives to Owner, as appropriate, and prepare Change Orders and Work Change Directives as required. 16. Differing Site Conditions: Respond to any notice from Contractor of differing site conditions, including conditions relating to underground facilities such as utilities, and hazardous environmental conditions. Promptly conduct reviews and prepare findings, conclusions, and recommendations for Owner’s use. 17. Shop Drawings, Samples, and Other Submittals: Review and approve or take other appropriate action with respect to Shop Drawings, Samples, and other required Contractor submittals to ensure compliance with American and Iron Steel requirements mandated by Section 746 of Title VII of the Consolidated Appropriations Act of 2017 (Division A – Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2017) and subsequent statutes mandating domestic preference. Any iron and steel products included in any submittal by the General Contractor, must include a Manufacturers’ Certification letter to verify the products were produced in the United States. Copies of Manufacturers’ Certification letters must be kept in the engineer’s project file and on site during construction. Review and approve or take other appropriate action with respect to Shop Drawings, Samples, and other required Contractor submittals, but only for conformance with the information given in the Construction Contract Documents and compatibility with the design concept of the completed Project as a functioning whole as indicated by the Construction Contract Documents. Such reviews and approvals or other action will not extend to means, methods, techniques, sequences, or procedures of construction or to safety precautions and programs incident thereto. Engineer shall meet any Contractor’s submittal schedule that Engineer has accepted. 18. Substitutes and “Or-equal”: Evaluate and determine the acceptability of substitute or “or-equal” materials and equipment proposed by Contractor, but subject to the 58 Exhibit A – Engineer’s Services EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 10 provisions of Paragraph A2.02.A.2 of this Exhibit A. Review of substitutes and “or equals” shall be in accordance with the General Conditions of the Construction Contract and applicable Agency regulations. Prior to approval of any substitute “or equal” obtain a Manufacturers’ Certification letter to verify the products were produced in the United States. Manufacturers’ Certification letters must be kept in the engineer’s project file and on site during construction to ensure compliance with American and Iron Steel requirements mandated by Section 746 of Title VII of the Consolidated Appropriations Act of 2017 (Division A – Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2017) and subsequent statues mandating domestic preference, if applicable. 19. Inspections and Tests: a. Receive and review all certificates of inspections, tests, and approvals required by Laws and Regulations or the Construction Contract Documents. Engineer’s review of such certificates will be for the purpose of determining that the results certified indicate compliance with the Construction Contract Documents and will not constitute an independent evaluation that the content or procedures of such inspections, tests, or approvals comply with the requirements of the Construction Contract Documents. Engineer shall be entitled to rely on the results of such inspections and tests. b. As deemed reasonably necessary, request that Contractor uncover Work that is to be inspected, tested, or approved. c. Pursuant to the terms of the Construction Contract, require special inspections or testing of the Work, whether or not the Work is fabricated, installed, or completed. d. Receive and review all Manufacturers’ Certification Letters for materials required to comply with American and Iron Steel requirements mandated by Section 746 of Title VII of the Consolidated Appropriations Act of 2017 (Division A – Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2017) and subsequent statutes mandating domestic preference to verify the products were produced in the United States. Manufacturers’ Certification letters must be kept in the engineer’s project file and on site during construction. 20. Change Proposals and Claims: (a) Review and respond to Change Proposals. Review each duly submitted Change Proposal from Contractor and, within 30 days after receipt of the Contractor’s supporting data, either deny the Change Proposal in whole, approve it in whole, or deny it in part and approve it in part. Such actions shall be in writing, with a copy provided to Owner and Contractor. If the Change Proposal does not involve the design (as set forth in the Drawings, Specifications, or otherwise), the acceptability of the Work, or other engineering or technical matters, then Engineer will notify the parties that the Engineer will not resolve the Change Proposal. (b) Provide information or data to Owner regarding engineering or technical matters pertaining to Claims. (c) Review Change Proposals to ensure compliance with American Iron and Steel requirements mandated by Section 746 of Title VII of the Consolidated Appropriations Act of 2017 (Division A – Agriculture, Rural Development, Food and Drug Administration, and 59 Exhibit A – Engineer’s Services EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 11 Related Agencies Appropriations Act, 2017) and subsequent statutes mandating domestic preference. 21. Applications for Payment: Based on Engineer’s observations as an experienced and qualified design professional and on review of Applications for Payment and accompanying supporting documentation: a. Determine the amounts that Engineer recommends Contractor be paid. Recommend reductions in payment (set-offs) based on the provisions for set-offs stated in the Construction Contract. Such recommendations of payment will be in writing and will constitute Engineer’s representation to Owner, based on such observations and review, that, to the best of Engineer’s knowledge, information and belief, Contractor’s Work has progressed to the point indicated, the Work is generally in accordance with the Construction Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon Substantial Completion, to the results of any subsequent tests called for in the Construction Contract Documents, and to any other qualifications stated in the recommendation), and the conditions precedent to Contractor’s being entitled to such payment appear to have been fulfilled in so far as it is Engineer’s responsibility to observe the Work. In the case of unit price Work, Engineer’s recommendations of payment will include final determinations of quantities and classifications of the Work (subject to any subsequent adjustments allowed by the Construction Contract Documents). b. By recommending payment, Engineer shall not thereby be deemed to have represented that observations made by Engineer to check the quality or quantity of Contractor’s Work as it is performed and furnished have been exhaustive, extended to every aspect of Contractor’s Work in progress, or involved detailed inspections of the Work beyond the responsibilities specifically assigned to Engineer in this Agreement. Neither Engineer’s review of Contractor’s Work for the purposes of recommending payments nor Engineer’s recommendation of any payment including final payment will impose on Engineer responsibility to supervise, direct, or control the Work, or for the means, methods, techniques, sequences, or procedures of construction or safety precautions or programs incident thereto, or Contractor’s compliance with Laws and Regulations applicable to Contractor’s furnishing and performing the Work. It will also not impose responsibility on Engineer to make any examination to ascertain how or for what purposes Contractor has used the money paid to Contractor by Owner; to determine that title to any portion of the Work, including materials or equipment, has passed to Owner free and clear of any liens, claims, security interests, or encumbrances; or that there may not be other matters at issue between Owner and Contractor that might affect the amount that should be paid. 22. Contractor’s Completion Documents: Receive from Contractor, review, and transmit to Owner maintenance and operating instructions, schedules, guarantees, bonds, certificates or other evidence of insurance required by the Construction Contract Documents, certificates of inspection, tests and approvals, and Shop Drawings, Samples, and other data approved as provided under Paragraph A1.05.A.17. Receive from Contractor, review, and transmit to Owner the annotated record documents which are 60 Exhibit A – Engineer’s Services EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 12 to be assembled by Contractor in accordance with the Construction Contract Documents to obtain final payment. The extent of Engineer’s review of record documents shall be to check that Contractor has submitted all pages. Receive from Contractor and review the annotated record documents which are to be assembled by Contractor in accordance with the Construction Contract Documents to obtain final payment. The Engineer shall prepare Record Drawings, and furnish such Record Drawings to Owner.” 23. Substantial Completion: Promptly after notice from Contractor that Contractor considers the entire Work ready for its intended use, in company with Owner and Contractor, visit the Site to review the Work and determine the status of completion. Follow the procedures in the Construction Contract regarding the preliminary certificate of Substantial Completion, punch list of items to be completed, Owner’s objections, notice to Contractor, and issuance of a final certificate of Substantial Completion. Assist Owner regarding any remaining engineering or technical matters affecting Owner’s use or occupancy of the Work following Substantial Completion. 24. Other Tasks: Perform or provide the following other Construction Phase tasks or deliverables: a. Upon Substantial Completion, the Engineer shall provide a copy of the Certificate of Substantial Completion to the Agency and Owner. 25. Final Notice of Acceptability of the Work: Conduct a final visit to the Project to determine if the Work is complete and acceptable so that Engineer may recommend, in writing, final payment to Contractor. Accompanying the recommendation for final payment, Engineer shall also provide a notice to Owner and Contractor in the form attached hereto as Exhibit E (“Notice of Acceptability of Work”) that the Work is acceptable (subject to the provisions of the Notice and Paragraph A1.05.A.21.b) to the best of Engineer’s knowledge, information, and belief, and based on the extent of the services provided by Engineer under this Agreement. a. Obtain the Contractors’ Certification letter and copies of Manufacturers’ Certification letters for all American Iron and Steel products used in the project. Upon Substantial Completion, provide copies of Engineer’s, Contractors’, and Manufacturers’ Certification letters to the Owner and a copy of Contractor’s Certification letter to the Agency. Provide a list of manufacturers of American Iron and Steel products used in the project and include manufacturer’s name and location, and product(s) to the Agency. 26. Standards for Certain Construction-Phase Decisions: Engineer will render decisions regarding the requirements of the Construction Contract Documents, and judge the acceptability of the Work, pursuant to the specific procedures set forth in the Construction Contract for initial interpretations, Change Proposals, and acceptance of the Work. In rendering such decisions and judgments, Engineer will not show partiality to Owner or Contractor, and will not be liable to Owner, Contractor, or others in connection with any proceedings, interpretations, decisions, or judgments conducted or rendered in good faith. 61 Exhibit A – Engineer’s Services EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 13 B. Duration of Construction Phase: The Construction Phase will commence with the execution of the first Construction Contract for the Project or any part thereof and will terminate upon written recommendation by Engineer for final payment to Contractors. If the Project involves more than one prime contract as indicated in Paragraph A1.03.D, then Construction Phase services may be rendered at different times in respect to the separate contracts. Subject to the provisions of Article 3, Engineer shall be entitled to an equitable increase in compensation if Construction Phase services (including Resident Project Representative services, if any) are required after the original date for completion and readiness for final payment of Contractor as set forth in the Construction Contract. A1.06 Post-Construction Phase A. Upon written authorization from Owner during the Post-Construction Phase, Engineer shall: 1. Together with Owner, visit the Project to observe any apparent defects in the Work, make recommendations as to replacement or correction of defective Work, if any, or the need to repair of any damage to the Site or adjacent areas, and assist Owner in consultations and discussions with Contractor concerning correction of any such defective Work and any needed repairs. 2. Together with Owner, visit the Project within one month before the end of the Construction Contract’s correction period to ascertain whether any portion of the Work or the repair of any damage to the Site or adjacent areas is defective and therefore subject to correction by Contractor. 3. Perform or provide the following other Post-Construction Phase tasks or deliverables: NOT USED B. The Post-Construction Phase services may commence during the Construction Phase and, if not otherwise modified in this Exhibit A, will terminate twelve months after the commencement of the Construction Contract’s correction period. PART 2 – ADDITIONAL SERVICES A2.01 Additional Services Requiring Owner’s Written Authorization A. If authorized in writing by Owner, Engineer shall provide Additional Services of the types listed below. These services are not included as part of Basic Services and will be paid for by Owner as indicated in Exhibit C. 1. Preparation of applications and supporting documents (in addition to those furnished under Basic Services) for private or governmental grants, loans, or advances in connection with the Project; preparation or review of environmental assessments and impact statements not including preparation of the Environmental Report defined under Basic Services; review and evaluation of the effects on the design requirements for the Project of any such statements and documents prepared by others; and assistance in obtaining approvals of authorities having jurisdiction over the anticipated environmental impact of the Project. 62 Exhibit A – Engineer’s Services EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 14 2. Services to make measured drawings of existing conditions or facilities, to conduct tests or investigations of existing conditions or facilities, or to verify the accuracy of drawings or other information furnished by Owner or others. 3. Services resulting from significant changes in the scope, extent, or character of the portions of the Project designed or specified by Engineer, or the Project’s design requirements, including, but not limited to, changes in size, complexity, Owner’s schedule, character of construction, or method of financing; and revising previously accepted studies, reports, Drawings, Specifications, or Construction Contract Documents when such revisions are required by changes in Laws and Regulations enacted subsequent to the Effective Date or are due to any other causes beyond Engineer’s control. 4. Services resulting from Owner’s request to evaluate additional Study and Report Phase alternative solutions beyond those agreed to in Paragraph A1.01.A.1 and 2, but only if the Owner’s request is made after completion of the Study and Report Phase. 5. Services required as a result of Owner’s providing incomplete or incorrect Project information to Engineer. 6. Providing renderings or models for Owner’s use, including services in support of building information modeling or civil integrated management. 7. Undertaking investigations and studies including, but not limited to: a. detailed consideration of operations, maintenance, and overhead expenses; b. the preparation of feasibility studies (such as those that include projections of output capacity, utility project rates, project market demand, or project revenues) and cash flow analyses, provided that such services are based on the engineering and technical aspects of the Project, and do not include rendering advice regarding municipal financial products or the issuance of municipal securities; c. preparation of appraisals; d. evaluating processes available for licensing, and assisting Owner in obtaining process licensing; e. detailed quantity surveys of materials, equipment, and labor; and f. audits or inventories required in connection with construction performed or furnished by Owner. 8. Furnishing services of Consultants for other than Basic Services. 9. Providing data or services of the types described in Exhibit B, when Owner retains Engineer to provide such data or services instead of Owner furnishing the same. 10. Providing the following services: 63 Exhibit A – Engineer’s Services EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 15 a. Services attributable to more prime construction contracts than specified in Paragraph A1.03.D. b. Services to arrange for performance of construction services for Owner by contractors other than the principal prime Contractor, and administering Owner’s contract for such services. 11. Services during out-of-town travel required of Engineer, other than for visits to the Site or Owner’s office as required in Basic Services (Part 1 of Exhibit A). 12. Preparing for, coordinating with, participating in and responding to structured independent review processes, including, but not limited to, construction management, cost estimating, project peer review, value engineering, and constructibility review requested by Owner; and performing or furnishing services required to revise studies, reports, Drawings, Specifications, or other documents as a result of such review processes. 13. Preparing additional bidding-related documents (or requests for proposals or other construction procurement documents) or Construction Contract Documents for alternate bids or cost estimates requested by Owner for the Work or a portion thereof. 14. Assistance in connection with bid protests, rebidding, or renegotiating contracts for construction, materials, equipment, or services, except when such assistance is required to complete services required by Paragraph 5.02.A and Exhibit F. 15. Preparing conformed Construction Contract Documents that incorporate and integrate the content of all Addenda and any amendments negotiated by Owner and Contractor. 16. Providing Construction Phase services beyond the original date for completion and readiness for final payment of Contractor, but only if such services increase the total quantity of services to be performed in the Construction Phase, rather than merely shifting performance of such services to a later date. 17. [Deleted]. 18. Supplementing Record Drawings with information regarding the completed Project, Site, and immediately adjacent areas obtained from field observations, Owner, utility companies, and other reliable sources. 19. Conducting surveys, investigations, and field measurements to verify the accuracy of Record Drawing content obtained from Contractor, Owner, utility companies, and other sources; revise and supplement Record Drawings as needed. 20. Preparation of operation, maintenance, and staffing manuals. 21. Protracted or extensive assistance in refining and adjusting of Project equipment and systems (such as initial startup, testing, and balancing). 22. Assistance to Owner in training Owner’s staff to operate and maintain Project equipment and systems. 64 Exhibit A – Engineer’s Services EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 16 23. Assistance to Owner in developing systems and procedures for (a) control of the operation and maintenance of Project equipment and systems, and (b) related recordkeeping. 24. Preparing to serve or serving as a consultant or witness for Owner in any litigation, arbitration, lien or bond claim, or other legal or administrative proceeding involving the Project. 25. Overtime work requiring higher than regular rates. 26. Providing construction surveys and staking to enable Contractor to perform its work other than as required under Paragraph A1.05.A.8; any type of property surveys or related engineering services needed for the transfer of interests in real property; and providing other special field surveys. 27. Providing more extensive services required to enable Engineer to issue notices or certifications requested by Owner. 28. Extensive services required during any correction period, or with respect to monitoring Contractor’s compliance with warranties and guarantees called for in the Construction Contract (except as agreed to under Basic Services). 29. Other additional services performed or furnished by Engineer not otherwise provided for in this Agreement. A2.02 Additional Services Not Requiring Owner’s Written Authorization A. Engineer shall advise Owner that Engineer is commencing to perform or furnish the Additional Services of the types listed below. For such Additional Services, Engineer need not request or obtain specific advance written authorization from Owner. Engineer shall cease performing or furnishing such Additional Services upon receipt of written notice to cease from Owner. 1. Services in connection with Work Change Directives and Change Orders to reflect changes requested by Owner. 2. Services in making revisions to Drawings and Specifications occasioned by the acceptance of substitute materials or equipment other than “or equal” items; evaluation and determination of an excessive number of proposed “or equals” or substitutions, whether proposed before or after award of the Construction Contract. Services in making revisions to Drawings and Specifications occasioned by the acceptance of substitute materials or equipment other than “or equal” items; services after the award of the Construction Contract in evaluating and determining the acceptability of a proposed "or equal" or substitution which is found to be inappropriate for the Project; evaluation and determination of an excessive number of proposed "or equals" or substitutions, whether proposed before or after award of the Construction Contract. 65 Exhibit A – Engineer’s Services EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 17 3. Services resulting from significant delays, changes, or price increases occurring as a direct or indirect result of materials, equipment, or energy shortages. 4. Additional or extended services arising from (a) the presence at the Site of any Constituent of Concern or items of historical or cultural significance, (b) emergencies or acts of God endangering the Work, (c) damage to the Work by fire or other causes during construction, (d) a significant amount of defective, neglected, or delayed Work, (e) acceleration of the progress schedule involving services beyond normal working hours, or (f) default by Contractor. 5. Services (other than Basic Services during the Post-Construction Phase) in connection with any partial utilization of the Work by Owner prior to Substantial Completion. 6. Evaluating unreasonable or frivolous requests for interpretation or information (RFIs), Change Proposals, or other demands from Contractor or others in connection with the Work, or an excessive number of RFIs, Change Proposals, or demands. 7. Reviewing a Shop Drawing or other Contractor submittal more than three times, as a result of repeated inadequate submissions by Contractor. 8. While at the Site, compliance by Engineer and its staff with those terms of Owner's or Contractor's safety program provided to Engineer subsequent to the Effective Date that exceed those normally required of engineering personnel by federal, State, or local safety authorities for similar construction sites. 66 Exhibit B – Owner's Responsibilities EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 This is EXHIBIT B, consisting of [ 4 ] pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated [ ]. Owner’s Responsibilities Article 2 of the Agreement is supplemented to include the following agreement of the parties. B2.01 In addition to other responsibilities of Owner as set forth in this Agreement, Owner shall at its expense: A. Provide Engineer with all criteria and full information as to Owner’s requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility, and expandability, and any budgetary limitations. B. Give instructions to Engineer regarding Owner’s procurement of construction services (including instructions regarding advertisements for bids, instructions to bidders, and requests for proposals, as applicable), Owner’s construction contract practices and requirements, insurance and bonding requirements, electronic transmittals during construction, and other information necessary for the finalization of Owner’s bidding-related documents (or requests for proposals or other construction procurement documents), and Construction Contract Documents. Furnish copies (or give specific directions requesting Engineer to use copies already in Engineer’s possession) of all design and construction standards, Owner’s standard forms, general conditions (if other than EJCDC® C-700, Standard General Conditions of the Construction Contract, 2013 Edition), supplementary conditions, text, and related documents and content for Engineer to include in the draft bidding-related documents (or requests for proposals or other construction procurement documents), and draft Construction Contract Documents, when applicable. Owner shall have responsibility for the final content of (1) such bidding-related documents (or requests for proposals or other construction procurement documents), and (2) those portions of any Construction Contract other than the design (as set forth in the Drawings, Specifications, or otherwise), and other engineering or technical matters; and Owner shall seek the advice of Owner’s legal counsel, risk managers, and insurance advisors with respect to the drafting and content of such documents. C. Furnish to Engineer any other available information pertinent to the Project including reports and data relative to previous designs, construction, or investigation at or adjacent to the Site. D. Following Engineer’s assessment of initially-available Project information and data and upon Engineer’s request, obtain, furnish, or otherwise make available (if necessary through title searches, or retention of specialists or consultants) such additional Project-related information and data as is reasonably required to enable Engineer to complete its Basic and Additional Services. Such additional information or data would generally include the following: 1. Property descriptions. 67 Exhibit B – Owner's Responsibilities EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 2 2. Zoning, deed, and other land use restrictions. 3. Utility and topographic mapping and surveys. 4. Property, boundary, easement, right-of-way, and other special surveys or data, including establishing relevant reference points. 5. Explorations and tests of subsurface conditions at or adjacent to the Site; geotechnical reports and investigations; drawings of physical conditions relating to existing surface or subsurface structures at the Site; hydrographic surveys, laboratory tests and inspections of samples, materials, and equipment; with appropriate professional interpretation of such information or data. 6. Environmental assessments, audits, investigations, and impact statements, and other relevant environmental, historical, or cultural studies relevant to the Project, the Site, and adjacent areas. 7. Data or consultations as required for the Project but not otherwise identified in this Agreement. E. Arrange for safe access to and make all provisions for Engineer to enter upon public and private property as required for Engineer to perform services under the Agreement. F. Recognizing and acknowledging that Engineer's services and expertise do not include the following services, provide, as required for the Project: 1. Accounting, bond and financial advisory (including, if applicable, “municipal advisor” services as described in Section 975 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (2010) and the municipal advisor registration rules issued by the Securities and Exchange Commission), independent cost estimating, and insurance counseling services. 2. Legal services with regard to issues pertaining to the Project as Owner requires, Contractor raises, or Engineer reasonably requests. 3. Such auditing services as Owner requires to ascertain how or for what purpose Contractor has used the money paid. G. Provide the services of an independent testing laboratory to perform all inspections, tests, and approvals of samples, materials, and equipment required by the Construction Contract Documents (other than those required to be furnished or arranged by Contractor), or to evaluate the performance of materials, equipment, and facilities of Owner, prior to their incorporation into the Work with appropriate professional interpretation thereof. Provide Engineer with the findings and reports generated by testing laboratories, including findings and reports obtained from or through Contractor. H. Provide reviews, approvals, and permits from all governmental authorities having jurisdiction to approve all phases of the Project designed or specified by Engineer and such reviews, 68 Exhibit B – Owner's Responsibilities EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 3 approvals, and consents from others as may be necessary for completion of each phase of the Project. I. Advise Engineer of the identity and scope of services of any independent consultants employed by Owner to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project peer review, value engineering, and constructibility review. J. If Owner designates a construction manager or an individual or entity other than, or in addition to, Engineer to represent Owner at the Site, define and set forth as an attachment to this Exhibit B the duties, responsibilities, and limitations of authority of such other party and the relation thereof to the duties, responsibilities, and authority of Engineer. K. If more than one prime contract is to be awarded for the Work designed or specified by Engineer, then designate a person or entity to have authority and responsibility for coordinating the activities among the various prime Contractors, and define and set forth the duties, responsibilities, and limitations of authority of such individual or entity and the relation thereof to the duties, responsibilities, and authority of Engineer as an attachment to this Exhibit B that is to be mutually agreed upon and made a part of this Agreement before such services begin. L. Inform Engineer in writing of any specific requirements of safety or security programs that are applicable to Engineer, as a visitor to the Site. M. Examine all alternative solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other documents presented by Engineer (including obtaining advice of an attorney, risk manager, insurance counselor, financial/municipal advisor, and other advisors or consultants as Owner deems appropriate with respect to such examination) and render in writing timely decisions pertaining thereto. N. Inform Engineer regarding any need for assistance in evaluating the possible use of Project Strategies, Technologies, and Techniques, as defined in Exhibit A. O. Advise Engineer as to whether Engineer’s assistance is requested in identifying opportunities for enhancing the sustainability of the Project. P. Place and pay for advertisement for Bids in appropriate publications. Q. Furnish to Engineer data as to Owner’s anticipated costs for services to be provided by others (including, but not limited to, accounting, bond and financial, independent cost estimating, insurance counseling, and legal advice) for Owner so that Engineer may assist Owner in collating the various cost categories which comprise Total Project Costs. R. Attend and participate in the pre-bid conference, bid opening, pre-construction conferences, construction progress and other job related meetings, and Site visits to determine Substantial Completion and readiness of the completed Work for final payment. S. Authorize Engineer to provide Additional Services as set forth in Part 2 of Exhibit A of the Agreement, as required. 69 Exhibit B – Owner's Responsibilities EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 4 T. Perform or provide the following: NOT USED B.2.02: Owners are ultimately responsible for compliance with Section 746 of Title VII of the Consolidated Appropriations Act of 2017 (Division A - Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2017) and subsequent statutes mandating domestic preference and will be responsible for the following: (a) Signing loan resolutions, grant agreements and letters of intent to meet conditions which include American Iron and Steel language, accepting American Iron and Steel requirements in those documents and in the letter of conditions. (b) Signing change orders (i.e. C-941 of EJCDC) and partial payment estimates (i.e. C-620 of EJCDC) and thereby acknowledging responsibility for compliance with American Iron and Steel requirements. (c) Obtaining the certification letters from the consulting engineer upon substantial completion of the project and maintaining this documentation for the life of the loan. (d) Where the owner provides their own engineering and/or construction services, providing copies of engineers’, contractors’, and manufacturers’ certification letters (as applicable) to the Agency. All certification letters must be kept in the engineer’s project file and on site during construction. For Owner Construction (Force Account), all clauses from Section 17 of RUS Bulletin 1780-35 must be included in the Agreement for Engineering Services. (e) Where the owner directly procures American Iron and Steel products, including American Iron and Steel clauses in the procurement contracts and obtaining manufacturers’ certification letters and providing copies to consulting engineers and contractors. 70 Exhibit C –Compensation Packet BC-1: Basic Services (other than RPR) – Lump Sum Method of Payment EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 This is EXHIBIT C, consisting of [ 6 ] pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated [ ]. Payments to Engineer for Services and Reimbursable Expenses COMPENSATION PACKET BC-1: Basic Services – Lump Sum Article 2 of the Agreement is supplemented to include the following agreement of the parties: ARTICLE 2 – OWNER’S RESPONSIBILITIES C2.01 Compensation for Basic Services (other than Resident Project Representative) – Lump Sum Method of Payment A. Owner shall pay Engineer for Basic Services set forth in Exhibit A, except for services of Engineer’s Resident Project Representative, if any, as follows: 1. A Lump Sum amount of $825,000 based on the following estimated distribution of compensation: a. Study and Report Phase $0 [0%] b. Preliminary Design Phase $360,000 [44%] c. Final Design Phase $140,000 [17%] d. Bidding and Negotiating Phase $35,000 [4%] e. Construction Phase $282,000 [34%] f. Post-Construction Phase $8,000 [1%] 2. Engineer may alter the distribution of compensation between individual phases noted herein to be consistent with services actually rendered, but shall not exceed the total Lump Sum amount unless approved in writing by the Owner and Agency. 3. The Lump Sum includes compensation for Engineer’s services and services of Engineer’s Consultants, if any. Appropriate amounts have been incorporated in the Lump Sum to account for labor costs, overhead, profit, expenses (other than any expressly allowed Reimbursable Expenses), and Consultant charges. 4. In addition to the Lump Sum, Engineer is also entitled to reimbursement from Owner for the following Reimbursable Expenses (see Appendix 1 for rates or charges): Mileage, meals and lodging. 5. The portion of the Lump Sum amount billed for Engineer’s services will be based upon Engineer’s estimate of the percentage of the total services actually completed during the 71 Exhibit C –Compensation Packet BC-1: Basic Services (other than RPR) – Lump Sum Method of Payment EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 2 billing period. If any Reimbursable Expenses are expressly allowed, Engineer may also bill for any such Reimbursable Expenses incurred during the billing period. B. Period of Service: The compensation amount stipulated in Compensation Packet BC-1 is conditioned on a period of service not exceeding [48] months. If such period of service is extended, the compensation amount for Engineer's services shall be appropriately adjusted with concurrence of the Owner and Agency. C2.02 NOT USED C2.03 NOT USED 72 Exhibit C – Compensation Packet RPR-2: Resident Project Representative Services— Standard Hourly Rates Method of Payment. EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 COMPENSATION PACKET RPR-2: Resident Project Representative – Standard Hourly Rates Article 2 of the Agreement is supplemented to include the following agreement of the parties: C2.04 Compensation for Resident Project Representative Basic Services – Standard Hourly Rates Method of Payment A. Owner shall pay Engineer for Resident Project Representative Basic Services as follows: 1. Resident Project Representative Services: For services of Engineer’s Resident Project Representative under Paragraph A1.05.A of Exhibit A, an amount equal to the cumulative hours charged to the Project by each class of Engineer’s personnel times Standard Hourly Rates for each applicable billing class for all Resident Project Representative services performed on the Project, plus related Reimbursable Expenses and Engineer’s Consultant’s charges, if any. The total compensation under this paragraph is estimated to be $372,200 based upon full-time RPR services on an eight-hour workday, Monday through Friday, over a [ 570 ] day construction schedule. 2. If rate(s) for RPR services is not indicated in Appendix Two to Exhibit C, “Standard Hourly Rates Schedule,” the The Standard Hourly Rate for RPR services is $108 per hour. B. Compensation for Reimbursable Expenses: 1. For those Reimbursable Expenses that are not accounted for in the compensation for Basic Services under Paragraph C2.01, and are directly related to the provision of Resident Project Representative or Post-Construction Basic Services, Owner shall pay Engineer at the rates set forth in Appendix 1 to this Exhibit C. 2. Reimbursable Expenses include the expenses identified in Appendix 1 and the following: transportation (including mileage), lodging, and subsistence incidental thereto; providing and maintaining field office facilities including furnishings and utilities; subsistence and transportation of Resident Project Representative and assistants; toll telephone calls, mobile phone charges, and courier charges; reproduction of reports, Drawings, Specifications, bidding-related or other procurement documents, Construction Contract Documents, and similar Project-related items. In addition, if authorized in advance by Owner, Reimbursable Expenses will also include expenses incurred for the use of highly specialized equipment. 3. The amounts payable to Engineer for Reimbursable Expenses, if any, will be those internal expenses related to the Resident Project Representative Basic Services that are actually incurred or allocated by Engineer, plus all invoiced external Reimbursable Expenses allocable to such services, the latter multiplied by a factor of [1.1]. 4. The Reimbursable Expenses Schedule will be adjusted annually (as of January 1) to reflect equitable changes in the compensation payable to Engineer. Changes will not be effective unless and until concurred in by the Owner and Agency. 73 Exhibit C – Compensation Packet RPR-2: Resident Project Representative Services— Standard Hourly Rates Method of Payment. EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 2 C. Other Provisions Concerning Payment Under this Paragraph C2.04: 1. Whenever Engineer is entitled to compensation for the charges of Engineer’s Consultants, those charges shall be the amounts billed by Engineer’s Consultants to Engineer times a factor of [1.1]. 2. Factors: The external Reimbursable Expenses and Engineer’s Consultant’s factors include Engineer’s overhead and profit associated with Engineer’s responsibility for the administration of such services and costs. 3. Estimated Compensation Amounts: a. Engineer’s estimate of the amounts that will become payable for specified services are only estimates for planning purposes., are not binding on the parties, and are not the minimum or maximum amounts payable to Engineer under the Agreement. However, Engineer shall not be entitled to payment for any services over and above the total sum amount of $372,200 set forth in Section 2.01.A.1. unless authorized by a written change order an Amendment to this Agreement executed by Owner and approved by the Agency. b. When estimated compensation amounts have been stated herein and it subsequently becomes apparent to Engineer that the total compensation amount thus estimated will be exceeded, Engineer shall give Owner and Agency written notice thereof, allowing Owner and Agency to consider its options, including suspension or termination of Engineer's services for Owner's convenience. Upon notice Owner and Engineer promptly shall review the matter of services remaining to be performed and compensation for such services. Owner shall either exercise its right to suspend or terminate Engineer's services for Owner's convenience, agree to such compensation exceeding said estimated amount, or agree to a reduction in the remaining services to be rendered by Engineer, so that total compensation for such services will not exceed said estimated amount when such services are completed by written change order an Amendment to this Agreement. If Owner decides not to suspend Engineer's services during negotiations and Engineer exceeds the estimated amount before Owner and Engineer have agreed to an increase in the compensation due Engineer or a reduction in the remaining services, then Engineer shall be paid for all services rendered hereunder. 4. To the extent necessary to verify Engineer’s charges and upon Owner’s timely request, Engineer shall make copies of such records available to Owner at cost at no cost. 74 74 Exhibit C – Compensation Packet AS-1: Additional Services – Standard Hourly Rates Method of Payment. EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 COMPENSATION PACKET AS-1: Additional Services – Standard Hourly Rates Article 2 of the Agreement is supplemented to include the following agreement of the parties: C2.05 Compensation for Additional Services – Standard Hourly Rates Method of Payment A. Owner shall pay Engineer for Additional Services, if any, as follows: 1. General: For services of Engineer’s personnel engaged directly on the Project pursuant to Paragraph A2.01 or A2.02 of Exhibit A, except for services as a consultant or witness under Paragraph A2.01.A.20, (which if needed shall be separately negotiated based on the nature of the required consultation or testimony) an amount equal to the cumulative hours charged to the Project by each class of Engineer’s personnel times Standard Hourly Rates for each applicable billing class for all Additional Services performed on the Project, plus related Reimbursable Expenses and Engineer’s Consultant’s charges, if any. B. Compensation For Reimbursable Expenses: 1. For those Reimbursable Expenses that are not accounted for in the compensation for Basic Services under Paragraph C2.01 and are directly related to the provision of Additional Services, Owner shall pay Engineer at the rates set forth in Appendix 1 to this Exhibit C. 2. Reimbursable Expenses include the expenses identified in Appendix 1 and the following categories: transportation (including mileage), lodging, and subsistence incidental thereto; providing and maintaining field office facilities including furnishings and utilities; toll telephone calls, mobile phone charges, and courier charges; reproduction of reports, Drawings, Specifications, bidding-related or other procurement documents, Construction Contract Documents, and similar Project-related items; and Consultants’ charges. In addition, if authorized in advance by Owner, Reimbursable Expenses will also include expenses incurred for the use of highly specialized equipment. 3. The amounts payable to Engineer for Reimbursable Expenses, if any, will be the Additional Services-related internal expenses actually incurred or allocated by Engineer, plus all invoiced external Reimbursable Expenses allocable to such Additional Services, the latter multiplied by a factor of [1.1]. 4. The Reimbursable Expenses Schedule will be adjusted annually (as of January 1) to reflect equitable changes in the compensation payable to Engineer. Changes will not be effective unless and until concurred in by the Owner and Agency. C. Other Provisions Concerning Payment for Additional Services: 1. Whenever Engineer is entitled to compensation for the charges of Engineer’s Consultants, those charges shall be the amounts billed by Engineer’s Consultants to Engineer times a factor of [1.1]. 75 Exhibit C – Compensation Packet AS-1: Additional Services – Standard Hourly Rates Method of Payment. EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 2 2. Factors: The external Reimbursable Expenses and Engineer’s Consultant’s Factors include Engineer’s overhead and profit associated with Engineer’s responsibility for the administration of such services and costs. 3. To the extent necessary to verify Engineer’s charges and upon Owner’s timely request, Engineer shall make copies of such records available to Owner at cost at no cost. 76 Exhibit C – Appendix 1: Reimbursable Expenses Schedule. EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 This is Appendix 1 to EXHIBIT C, consisting of [ 1 ] pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated [ ]. Reimbursable Expenses Schedule Reimbursable Expenses are subject to review and adjustment per Exhibit C. Rates and charges for Reimbursable Expenses as of the date of the Agreement are: 8"x11" Copies/Impressions $ N/A/page Copies of Drawings $ N/A/sq. ft. Mileage (auto) $ 0.545/mile Air Transportation N/A CAD Charge $ N/A/hour Laboratory Testing N/A Health and Safety Level D $ N/A/day Health and Safety Level C $ N/A/day Meals and Lodging At Cost 77 Exhibit C – Appendix 2: Standard Hourly Rates Schedule. EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 This is Appendix 2 to EXHIBIT C, consisting of [1] pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated [ ]. Standard Hourly Rates Schedule A. Standard Hourly Rates: 1. Standard Hourly Rates are set forth in this Appendix 2 to this Exhibit C and include salaries and wages paid to personnel in each billing class plus the cost of customary and statutory benefits, general and administrative overhead, non-project operating costs, and operating margin or profit. 2. The Standard Hourly Rates apply only as specified in Article C2. B. Schedule: Hourly rates for services performed on or after the date of the Agreement are: Principal $172/hour Senior Project Manager $152/hour Project Manager $132/hour Senior Project Engineer $128/hour Project Engineer $120/hour Senior Designer $116/hour Design Engineer/ CAD Designer $108/hour Administrative Support $100/hour 78 Exhibit D - Resident Project Representative. EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 This is EXHIBIT D, consisting of [ 5 ] pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated [ ]. Duties, Responsibilities, and Limitations of Authority of Resident Project Representative Article 1 of the Agreement is supplemented to include the following agreement of the parties: ARTICLE 1 - SERVICES OF ENGINEER D1.01 Resident Project Representative A. Engineer shall furnish a Resident Project Representative (“RPR”) to assist Engineer in observing progress and quality of the Work. The RPR may provide full time representation or may provide representation to a lesser degree. RPR is Engineer’s representative at the Site, will act as directed by and under the supervision of Engineer, and will confer with Engineer regarding RPR’s actions. Full time Resident Project Representation is required unless request in writing by the Owner and waived in writing by the Agency. B. Through RPR's observations of the Work, including field checks of materials and installed equipment, Engineer shall endeavor to provide further protection for Owner against defects and deficiencies in the Work. However, Engineer shall not, as a result of such RPR observations of the Work, supervise, direct, or have control over the Work, nor shall Engineer (including the RPR) have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected or used by any Constructor, for security or safety at the Site, for safety precautions and programs incident to the Work or any Constructor’s work in progress, for the coordination of the Constructors’ work or schedules, or for any failure of any Constructor to comply with Laws and Regulations applicable to the performing and furnishing of its work. The Engineer (including RPR) neither guarantees the performances of any Constructor nor assumes responsibility for any Constructor’s failure to furnish and perform the Work, or any portion of the Work, in accordance with the Construction Contract Documents. In addition, the specific terms set forth in Exhibit A, Paragraph A1.05, of this Agreement are applicable. C. The duties and responsibilities of the RPR are as follows: 1. General: RPR’s dealings in matters pertaining to the Work in general shall be with Engineer and Contractor. RPR’s dealings with Subcontractors shall only be through or with the full knowledge and approval of Contractor. RPR shall generally communicate with Owner only with the knowledge of and under the direction of Engineer. 2. Schedules: Review the progress schedule, schedule of Shop Drawing and Sample submittals, schedule of values, and other schedules prepared by Contractor and consult with Engineer concerning acceptability of such schedules. 3. Conferences and Meetings: Attend meetings with Contractor, such as preconstruction conferences, progress meetings, job conferences, and other Project-related meetings 79 Exhibit D - Resident Project Representative. EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 2 (but not including Contractor’s safety meetings), and as appropriate prepare and circulate copies of minutes thereof. 4. Safety Compliance: Comply with Site safety programs, as they apply to RPR, and if required to do so by such safety programs, receive safety training specifically related to RPR’s own personal safety while at the Site. 5. Liaison: a. Serve as Engineer’s liaison with Contractor. Working principally through Contractor’s authorized representative or designee, assist in providing information regarding the provisions and intent of the Construction Contract Documents. b. Assist Engineer in serving as Owner’s liaison with Contractor when Contractor’s operations affect Owner’s on-Site operations. c. Assist in obtaining from Owner additional details or information, when required for proper execution of the Work. 6. Clarifications and Interpretations: Receive from Contractor submittal of any matters in question concerning the requirements of the Construction Contract Documents (sometimes referred to as requests for information or interpretation—RFIs), or relating to the acceptability of the Work under the Construction Contract Documents. Report to Engineer regarding such RFIs. Report to Engineer when clarifications and interpretations of the Construction Contract Documents are needed, whether as the result of a Contractor RFI or otherwise. Transmit Engineer’s clarifications, interpretations, and decisions to Contractor. , 7. Shop Drawings and Samples: a. Record date of receipt of Samples and Contractor-approved Shop Drawings. b. Receive Samples that are furnished at the Site by Contractor, and notify Engineer of availability of Samples for examination. c. Advise Engineer and Contractor of the commencement of any portion of the Work requiring a Shop Drawing or Sample submittal, if RPR believes that the submittal has not been received from Contractor, or has not been approved by Contractor or Engineer. 8. Proposed Modifications: Consider and evaluate Contractor’s suggestions for modifications to the Drawings or Specifications, and report such suggestions, together with RPR’s recommendations, if any, to Engineer. Transmit Engineer’s response (if any) to such suggestions to Contractor. 9. Review of Work; Defective Work: a. Report to Engineer whenever RPR believes that any part of the Work is defective under the terms and standards set forth in the Construction Contract Documents, and provide recommendations as to whether such Work should be corrected, 80 Exhibit D - Resident Project Representative. EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 3 removed and replaced, or accepted as provided in the Construction Contract Documents. b. Inform Engineer of any Work that RPR believes is not defective under the terms and standards set forth in the Construction Contract Documents, but is nonetheless not compatible with the design concept of the completed Project as a functioning whole, and provide recommendations to Engineer for addressing such Work. ; and c. Advise Engineer of that part of the Work that RPR believes should be uncovered for observation, or requires special testing, inspection, or approval. 10. Inspections, Tests, and System Start-ups: a. Consult with Engineer in advance of scheduled inspections, tests, and systems start- ups. b. Verify that tests, equipment, and systems start-ups and operating and maintenance training are conducted in the presence of appropriate Owner’s personnel, and that Contractor maintains adequate records thereof. c. Observe, record, and report to Engineer appropriate details relative to the test procedures and systems start-ups. d. Observe whether Contractor has arranged for inspections required by Laws and Regulations, including but not limited to those to be performed by public or other agencies having jurisdiction over the Work. e. Accompany visiting inspectors representing public or other agencies having jurisdiction over the Work, record the results of these inspections, and report to Engineer. 11. Records: a. Maintain at the Site orderly files for correspondence, reports of job conferences, copies of Construction Contract Documents including all Change Orders, Field Orders, Work Change Directives, Addenda, additional Drawings issued subsequent to the execution of the Construction Contract, RFIs, Engineer’s clarifications and interpretations of the Construction Contract Documents, progress reports, approved Shop Drawing and Sample submittals, and other Project-related documents. b. Prepare a daily report or keep a diary or log book, recording Contractor’s hours on the Site, Subcontractors present at the Site, weather conditions, data relative to questions of Change Orders, Field Orders, Work Change Directives, or changed conditions, Site visitors, deliveries of equipment or materials, daily activities, decisions, observations in general, and specific observations in more detail as in the case of observing test procedures; and send copies to Engineer. c. Upon request from Owner to Engineer, photograph or video Work in progress or Site conditions. 81 Exhibit D - Resident Project Representative. EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 4 d. Record and maintain accurate, up-to-date lists of the names, addresses, fax numbers, e-mail addresses, websites, and telephone numbers (including mobile numbers) of all Contractors, Subcontractors, and major Suppliers of materials and equipment. e. Maintain records for use in preparing Project documentation. f. Upon completion of the Work, furnish original set of all RPR Project documentation to Engineer. g. Maintain all Manufacturers’ Certification letters in the project file and on site during construction to ensure compliance with American Iron and Steel requirements mandated by Section 746 of Title VII of the Consolidated Appropriations Act of 2017 (Division A – Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2017) and subsequent statutes mandating domestic preference, as applicable. 12. Reports: a. Furnish to Engineer periodic reports as required of progress of the Work and of Contractor’s compliance with the progress schedule and schedule of Shop Drawing and Sample submittals. b. [Deleted] c. Furnish to Engineer and Owner copies of all inspection, test, and system start-up reports. d. Immediately inform Engineer of the occurrence of any Site accidents, emergencies, acts of God endangering the Work, possible force majeure or delay events, damage to property by fire or other causes, or the discovery of any potential differing site condition or Constituent of Concern. 13. Payment Requests: Review applications for payment with Contractor for compliance with the established procedure for their submission and forward with recommendations to Engineer, noting particularly the relationship of the payment requested to the schedule of values, Work completed, and materials and equipment delivered at the Site but not incorporated in the Work. 14. Certificates, Operation and Maintenance Manuals: During the course of the Work, verify that materials and equipment certificates, operation and maintenance manuals and other data required by the Contract Documents to be assembled and furnished by Contractor are applicable to the items actually installed and in accordance with the Contract Documents, and have these documents delivered to Engineer for review and forwarding to Owner prior to payment for that part of the Work. 15. Completion: a. Participate in Engineer’s visits to the Site regarding Substantial Completion, assist in the determination of Substantial Completion, and prior to the issuance of a 82 Exhibit D - Resident Project Representative. EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 5 Certificate of Substantial Completion submit a punch list of observed items requiring completion or correction. b. Participate in Engineer’s visit to the Site in the company of Owner and Contractor, to determine completion of the Work, and prepare a final punch list of items to be completed or corrected by Contractor. c. Observe whether all items on the final punch list have been completed or corrected, and make recommendations to Engineer concerning acceptance and issuance of the Notice of Acceptability of the Work (Exhibit E). D. Resident Project Representative shall not: 1. Authorize any deviation from the Construction Contract Documents or substitution of materials or equipment (including “or-equal” items). 2. Exceed limitations of Engineer’s authority as set forth in this Agreement. 3. Undertake any of the responsibilities of Contractor, Subcontractors, or Suppliers, or any Constructor. 4. Advise on, issue directions relative to, or assume control over any aspect of the means, methods, techniques, sequences or procedures of the Work, by Contractor or any other Constructor. 5. Advise on, issue directions regarding, or assume control over security or safety practices, precautions, and programs in connection with the activities or operations of Owner or Contractor. 6. Participate in specialized field or laboratory tests or inspections conducted off-site by others except as specifically authorized by Engineer. 7. Accept Shop Drawing or Sample submittals from anyone other than Contractor. 8. Authorize Owner to occupy the Project in whole or in part. 83 Exhibit E – Notice of Acceptability of Work. EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 This is EXHIBIT E, consisting of [ 2 ] pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated [ ]. NOTICE OF ACCEPTABILITY OF WORK PROJECT: OWNER: CONTRACTOR: OWNER’S CONSTRUCTION CONTRACT IDENTIFICATION: EFFECTIVE DATE OF THE CONSTRUCTION CONTRACT: ENGINEER: NOTICE DATE: To: Owner And To: Contractor From: Engineer The Engineer hereby gives notice to the above Owner and Contractor that Engineer has recommended final payment of Contractor, and that the Work furnished and performed by Contractor under the above Construction Contract is acceptable, expressly subject to the provisions of the related Contract Documents, the Agreement between Owner and Engineer for Professional Services dated ______, and the following terms and conditions of this Notice: CONDITIONS OF NOTICE OF ACCEPTABILITY OF WORK The Notice of Acceptability of Work (“Notice”) is expressly made subject to the following terms and conditions to which all those who receive said Notice and rely thereon agree: 1. This Notice is given with the skill and care ordinarily used by members of the engineering profession practicing under similar conditions at the same time and in the same locality. 2. This Notice reflects and is an expression of the Engineer’s professional opinion. 84 Exhibit E – Notice of Acceptability of Work. EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 2 3. This Notice is given as to the best of Engineer’s knowledge, information, and belief as of the Notice Date. 4. This Notice is based entirely on and expressly limited by the scope of services Engineer has been employed by Owner to perform or furnish during construction of the Project (including observation of the Contractor’s work) under Engineer’s Agreement with Owner, and applies only to facts that are within Engineer’s knowledge or could reasonably have been ascertained by Engineer as a result of carrying out the responsibilities specifically assigned to Engineer under such Agreement. 5. This Notice is not a guarantee or warranty of Contractor’s performance under the Construction Contract, an acceptance of Work that is not in accordance with the related Contract Documents, including but not limited to defective Work discovered after final inspection, nor an assumption of responsibility for any failure of Contractor to furnish and perform the Work thereunder in accordance with the Construction Contract Documents, or to otherwise comply with the Construction Contract Documents or the terms of any special guarantees specified therein. 6. This Notice does not relieve Contractor of any surviving obligations under the Construction Contract, and is subject to Owner’s reservations of rights with respect to completion and final payment. By: Title: Dated: 85 Exhibit G – Insurance. EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 This is EXHIBIT G, consisting of [ 2 ] pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated [ ]. Insurance Paragraph 6.05 of the Agreement is supplemented to include the following agreement of the parties: G6.05 Insurance A. The limits of liability for the insurance required by Paragraph 6.05.A and 6.05.B of the Agreement are as follows: 1. By Engineer: a. Workers’ Compensation: Statutory b. Employer’s Liability -- 1) Bodily injury, each accident: $1,000,000 2) Bodily injury by disease, each employee: $1,000,000 3) Bodily injury/disease, aggregate: $1,000,000 c. General Liability -- 1) Each Occurrence (Bodily Injury and Property Damage): $1,000,000 2) General Aggregate: $2,000,000 d. Excess or Umbrella Liability -- 1) Per Occurrence: $1,000,000 2) General Aggregate: $1,000,000 e. Automobile Liability --Combined Single Limit (Bodily Injury and Property Damage): $1,000,000 f. Professional Liability – 1) Each Claim Made $1,000,000 2) Annual Aggregate $3,000,000 g. Other (specify): $0 2. By Owner: a. Workers’ Compensation: Statutory 86 Exhibit G – Insurance. EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 2 b. Employer’s Liability -- 1) Bodily injury, Each Accident $1,000,000 2) Bodily injury by Disease, Each Employee $1,000,000 3) Bodily injury/Disease, Aggregate $1,000,000 c. General Liability -- 1) General Aggregate: $2,000,000 2) Each Occurrence (Bodily Injury and Property Damage): $1,000,000 d. Excess Umbrella Liability 1) Per Occurrence: $1,000,000 2) General Aggregate: $1,000,000 e. Automobile Liability – Combined Single Limit (Bodily Injury and Property Damage): $1,000,000 f. Other (specify): $0 B. Additional Insureds: 1. The following individuals or entities are to be listed on Owner’s general liability policies of insurance as additional insureds: a. JVA, Incorporated Engineer b. TBD Engineer’s Consultant c. Engineer’s Consultant d. [other] 2. During the term of this Agreement the Engineer shall notify Owner of any other Consultant to be listed as an additional insured on Owner’s general liability policies of insurance. 3. The Owner shall be listed on Engineer’s general liability policy as provided in Paragraph 6.05.A. 87 Exhibit H - Dispute Resolution. EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 This is EXHIBIT H, consisting of [ 1 ] pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated [ ]. Dispute Resolution Paragraph 6.09 of the Agreement is supplemented to include the following agreement of the parties: H6.09 Dispute Resolution A. Mediation: Owner and Engineer agree that they shall first submit any and all unsettled claims, counterclaims, disputes, and other matters in question between them arising out of or relating to this Agreement or the breach thereof (“Disputes”) to mediation by a mediator selected by mutual agreement with the parties equally sharing the cost of the mediation. [Judicial Arbitor Group, 1601 Blake Street #400, Denver, COhere insert name of mediator, or mediation service]. Owner and Engineer agree to participate in the mediation process in good faith. The process shall be conducted on a confidential basis, and shall be completed within 120 days. If such mediation is unsuccessful in resolving a Dispute, then (1) the parties may mutually agree to a dispute resolution of their choice, or (2) either party may seek to have the Dispute resolved by a court of competent jurisdiction. 88 Exhibit K – Amendment to Owner-Engineer Agreement. EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 This is EXHIBIT K, consisting of [ 2 ] pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated [ ]. AMENDMENT TO OWNER-ENGINEER AGREEMENT Amendment No. _____ The Effective Date of this Amendment is: ______. Background Data Effective Date of Owner-Engineer Agreement: Owner: Engineer: Project: Nature of Amendment: [Check those that are applicable and delete those that are inapplicable.] ____ Additional Services to be performed by Engineer ____ Modifications to services of Engineer ____ Modifications to responsibilities of Owner ____ Modifications of payment to Engineer ____ Modifications to time(s) for rendering services ____ Modifications to other terms and conditions of the Agreement Description of Modifications: Here describe the modifications, in as much specificity and detail as needed. Use an attachment if necessary. Agreement Summary: Original agreement amount: $_____________ Net change for prior amendments: $_____________ This amendment amount: $_____________ 89 Exhibit K – Amendment to Owner-Engineer Agreement. EJCDC® E-500, Agreement Between Owner and Engineer for Professional Services. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 2 Adjusted Agreement amount: $_____________ Change in time for services (days or date, as applicable): ______ The foregoing Agreement Summary is for reference only and does not alter the terms of the Agreement, including those set forth in Exhibit C. Owner and Engineer hereby agree to modify the above-referenced Agreement as set forth in this Amendment. All provisions of the Agreement not modified by this or previous Amendments remain in effect. OWNER: ENGINEER: By: By: Print name: Print name: Title: Title: Date Signed: Date Signed: AGENCY CONCURRENCE As lender or insurer of funds to defray the costs of this Agreement, and without liability for any payments thereunder, the Agency hereby concurs in the form, content, and execution of this Agreement Amendment. Agency: USDA Rural Development______________ By (Signature): _______________________________________ Name (Typed): _______________________________________ Title: ___________________________________ Date: ___________________________________ 90 TOWN ATTORNEY’S OFFICE Memo To: Honorable Mayor Jirsa Board of Trustees From: Dan Kramer, Town Attorney Date: September 24, 2019 RE: Reporting Relationship of Town Prosecutor (Mark all that apply) PUBLIC HEARING ORDINANCE LAND USE CONTRACT/AGREEMENT RESOLUTION OTHER______________ QUASI-JUDICIAL YES NO Objective: Clarify the reporting relationship of the Town Prosecutor. Present Situation: The Town entered into an agreement with the Law Office of Avi S. Rocklin, LLC in August 2018 to provide municipal prosecuting services for the Town. Avi Rocklin continues to serve as the Town’s prosecutor. Since that time, the Town has also brought on a full-time, in-house Town Attorney. The relationship between the Board, Prosecutor, and Town Attorney would benefit from clarification. Proposal: As with other special counsel, the Town Attorney would oversee the work of the Town Prosecutor. Subject to the Town’s purchasing policies, contracts with special counsel including the Prosecutor may still be brought to the Board for approval. Advantages: • The Town Attorney is generally responsible for the Town’s legal advice and representation. § 2.24.020(3), E.P.M.C. • A Town Attorney would typically oversee the advice provided by any assistant town attorneys, as well as any contract or specialist attorneys in such fields as municipal bonds, water rights, intellectual property, etc. • This provides for consistency in the advice the Board receives as well as more centralized responsibility for providing the advice and representation. • It also allows for more connection between the Prosecutor and her supervisor. Disadvantages: • May dilute communication between the Town Prosecutor and the Town Board. However, the Prosecutor’s Office should generally be depoliticized. 25 91 • Marginally increases the workload for the Town Attorney. However, the Town Attorney would likely need to be involved in any Board-level issues involving the Town Prosecutor in any case. Action Recommended: Clarify that the Town Prosecutor reports to the Town Attorney. Finance/Resource Impact: None. Level of Public Interest Low Sample Motion: I move to clarify that the Town Prosecutor reports to the Town Attorney. Attachments: None. 26 92 TOWN CLERK Memo To: Honorable Mayor Jirsa Board of Trustees Through: Town Administrator Machalek From: Jackie Williamson, Town Clerk Date: September 24, 2019 RE: Revised Board Policy 101, Division of Responsibilities PUBLIC HEARING ORDINANCE LAND USE CONTRACT/AGREEMENT RESOLUTION OTHER QUASI-JUDICIAL YES NO Objective: Consider Board member appointments after the swearing in of Trustee Eric Blackhurst at the September 10, 2019 meeting. Present Situation: Former Trustee Cody Rex Walker’s appointment as Mayor ProTem, Audit Committee member and appointment to the Estes Park Economic Development Corporation Board of Directors are required to be filled by another current Board member. Proposal: At the September 10, 2019 meeting, the Town Board appointed Trustee Ron Norris to the Mayor ProTem position. The Mayor has proposed the following revisions to the appointments: • Eric Blackhurst Estes Valley Planning Commission • Eric Blackhurst Audit Committee • Patrick Martchink Estes Park Economic Development Corporation All other appointments remain unchanged. Advantages: To fill vacant appointments created with the recall of Trustee Walker. Disadvantages: Appointments would be left vacant and without Town liaisons to provide reporting to the Board. Action Recommended: To approve the revised Policy 101, Division of Responsibilities. Budget: N/A Level of Public Interest. Low. Sample Motion: I move to approve/deny the revisions to Policy 101, Division of Responsibilities. Attachment Revised Policy 101, Division of Responsibilities 27 93 Effective Period: Until Superseded Review Schedule: After each municipal election Revised: 8/139/24/19 Effective Date: 8/139/24/19 References: Governing Policies Manual; Governance Policy Manual 1.6 Board Appointed Committee Principles TOWN BOARD POLICY GOVERNANCE BOARD OF TRUSTEES DIVISION OF RESPONSIBILITIES 101 Revisions 9/24/2019 1. Purpose The Board of Trustees has many varied responsibilities. In order to effectively use their time, the Board finds it necessary to divide duties and responsibilities among the Board members. 2. Assignments To Ongoing Committees: At the first regular meeting following the certification of the results of each biennial election, the Board of Trustees determines each Board and Commission Primary Liaison assignments and responsibilities for the remainder of the term of the current standing Town Board. a. Interim Assignments: Should the Board deem it necessary to create a new liaison assignment or to modify assignments at some time other than as described in 101.2, the Board may do so at any regular meeting of the Board. 3. Assignment To Committees Of The Board Of Trustees (committees comprised solely of members of the Board of Trustees) a) Assignments to Audit Committee: At the first regular meeting following the certification of the results of each biennial election, the Mayor shall appoint two (2) Trustees to the Audit committee with the Mayor serving as the third member. (Ord. 26-88 §1(part), 1988; Ord. 7-03 §1, 2003; Ord. 10-10 §1, 2010; Ord. 10-14 §1, 2014; Ord. 13-15, § 1, 9-22-2015) b) Assignment to Special Committees: Special committees may be established by the Board of Trustees. The Mayor shall appoint all members of any special committee subject to the approval of the Board of Trustees. (Estes Park Municipal Code 2.08.020) 4. Appointment of Mayor Pro- Tem: “At its first meeting following the certification of the results of each biennial election, the Board of Trustees shall choose one (1) of the Trustees as Mayor Pro Tem who, in the absence of the Mayor from any meeting of the Board of Trustees, or during the Mayor's absence from the Town or his or her inability to act, shall perform his or her duties.” (Estes Park Municipal Code 2.16.010) 28 94 Effective Period: Until Superseded Review Schedule: After each municipal election Revised: 8/139/24/19 Effective Date: 8/139/24/19 References: Governing Policies Manual; Governance Policy Manual 1.6 Board Appointed Committee Principles TOWN BOARD POLICY GOVERNANCE BOARD OF TRUSTEES DIVISION OF RESPONSIBILITIES 101 Revisions 9/24/2019 5. Special Assignments to Ad-Hoc and Temporary Committees: The Mayor may nominate trustees to serve on committees, community groups, or in some other capacities as a representative of the Town, except in cases where a Board Liaison has been approved by the Board of Trustees (Policy 1.7.) The Mayor shall present the nomination of any such appointments to the Board for approval at a regular town board meeting. The Mayor will make every effort to distribute special assignments equitably among the members of the Board. 6. Interview panels for Town Committees – In accordance with Section IV A 6 of Policy 102, Town Committees, “Applicants for all committees will be interviewed by the Town Board, or its designees. Any designees will be appointed by the full Town Board.” 7. Outside Committees – Outside committees are committees or boards where the Town is represented by a member of the Board of Trustees and/or staff. These are not committees of the Town of Estes Park and therefore the rules and guidelines for membership are those of the outside entity not the Town. At times, they may request that the Trustees assign an individual(s) to represent the Town, however they may also request a specific individual or position as the Town’s representative to the committee. 8. Liaison Assignments - The Mayor may nominate trustees to serve as a Board Liaison. The Mayor shall present the nomination of any such appointments to the Board for approval at a regular town board meeting. The Mayor will make every effort to distribute special assignments equitably among the members of the Board. 29 95 Effective Period: Until Superseded Review Schedule: After each municipal election Revised: 8/139/24/19 Effective Date: 8/139/24/19 References: Governing Policies Manual; Governance Policy Manual 1.6 Board Appointed Committee Principles TOWN BOARD POLICY GOVERNANCE BOARD OF TRUSTEES DIVISION OF RESPONSIBILITIES 101 Revisions 9/24/2019 Board Assignments Mayor Pro-Tem - __ Trustee Walker_Norris_____________ Board and Commission and Community Representation Board, Commission or Task Force Liaison Staff Liaison Type of Committee Estes Valley Planning Commission Trustee NorrisBlackhurst Randy Hunt Advisory/ Decision Making Estes Valley Board of Adjustment Randy Hunt Decision Making Western Heritage Inc Trustee Cenac n/a Outside Estes Park Museum Friends and Foundation Inc. Derek Fortini Outside Ambassadors Teri Salerno Outside Police Auxiliary Wes Kufeld Working Group Parks Advisory Board Trustee Martchink Brian Berg Advisory Transportation Advisory Board Trustee Bangs Greg Muhonen Advisory Estes Valley Restorative Justice Denise Lord Working Group Estes Park Board of Appeals Randy Hunt Advisory/Decision Making Sister Cities Trustee Bangs n/a Working Group Family Advisory Board Trustee Norris Travis Machalek Advisory 30 96 Effective Period: Until Superseded Review Schedule: After each municipal election Revised: 8/139/24/19 Effective Date: 8/139/24/19 References: Governing Policies Manual; Governance Policy Manual 1.6 Board Appointed Committee Principles TOWN BOARD POLICY GOVERNANCE BOARD OF TRUSTEES DIVISION OF RESPONSIBILITIES 101 Revisions 9/24/2019 Committee or Board Appointed Member(s) Staff Liaison Type of Committee Audit Committee Mayor Jirsa Mayor Pro Tem Walker, Trustee Blackhurst & Cenac Travis Machalek Duane Hudson Advisory Colorado Association of Ski Towns (CAST) Voting Designee – Mayor Jirsa Alt Designee TA Machalek n/a Outside Platte River Power Authority Board of Directors Mayor Jirsa Reuben Bergsten Outside Larimer County Open Lands Board Trustee Zornes n/a Outside Estes Park Economic Development Corporation Board of Directors Mayor Pro Tem Walker, Travis Trustee Martchink & TA Machalek n/a Outside Larimer County Solid Waste Policy Council Trustee Zornes Outside Local Marketing District (Visit Estes Park) Mayor Jirsa, Trustee Cenac n/a Outside Regional Transportation Infrastructure Funding Task Force Trustee Martchink Outside Larimer County Behavioral Health Policy Council Trustee Zornes n/a Outside ___________________________________ Todd Jirsa Mayor 31 97       32 98 PUBLIC WORKS Memo To: Honorable Mayor Jirsa Board of Trustees Through: Town Administrator Machalek From: David Hook, PE, Engineering Manager Date: September 24, 2019 RE: Intergovernmental Agreement with CDOT for US36 & Community Dr Roundabout (Mark all that apply) PUBLIC HEARING ORDINANCE LAND USE CONTRACT/AGREEMENT RESOLUTION OTHER QUASI-JUDICIAL YES NO Objective: Public Works (PW) seeks approval of the Intergovernmental Agreement (IGA) from the Colorado Department of Transportation (CDOT) for Federal Highway Administration (FHWA) Congestion Mitigation and Air Quality (CMAQ) funding to support the US 36 and Community Drive intersection improvement. Present Situation: At the proposed location, US 36 is a two-lane east-west state highway bringing traffic into Estes Park. Currently, any westbound traffic waiting to make a left turn onto Community Drive will cause a queue along US 36 back onto the causeway. Similarly, heavy traffic volumes on US36 cause long delays for traffic entering the highway from Community Drive. A traffic impact study performed in 2009 in conjunction with the construction of the Stanley Park Fairgrounds Event Center identified the need for both a westbound to southbound and eastbound to southbound turn lane from US 36 onto Community Drive. As a condition of approval, CDOT required the Town to install these proposed turn lanes. A traffic impact study performed in 2016 in conjunction with the Estes Valley Community Center also identified the need for intersection improvements as a result of increased vehicle trips. The Town is currently exploring intersection improvement with a roundabout. This CDOT IGA would support construction costs. Proposal: Public Works staff proposes to construct a roundabout at this intersection. CDOT is supporting this effort through this IGA allocating federal CMAQ funds to support construction. Advantages: • A roundabout will slow traffic speeds entering Estes Park on US36. 33 99 •A roundabout can include welcoming landscaping at this major entrance to Estes Park. •Roundabout control has been documented to provide reductions in fatalities and injuries from intersection crashes. •While initial construction typically exceeds the cost of stop signs and traffic signals, the 20-year life-cycle costs are typically 60% less than a traffic signal. •Pedestrian crossings of the approaching roadways are shorter and safer than crossing at signalized intersection. •Reduced idling, hard stops, and start-up acceleration at roundabouts reduces air and noise pollution emission from cars & trucks and is kinder to the environment. •Agency experience with roundabouts documents many users who are initially skeptical of roundabouts become avid supporters after observing and experiencing roundabout operation. •Driver decision-making at roundabouts is simplified where only one, instead of several, other driver movements must be processed when entering an intersection. Simply—“Do I have a clear gap on my left to enter the roundabout?” Disadvantages: •A local match cost share is required; however, funds have been budgeted in 2019. •The project is not yet fully funded; however, construction can be delayed until additional funds are obtained (beyond the grant and current allocation of local funding). •Construction will cause traffic disruption; however, a traffic control plan will be implemented including detour options, US 36 will remain open, and construction will be planned for the off-season. Action Recommended: Public Works staff recommends approval of this IGA. Finance/Resource Impact: The total construction cost of this project is $2.1 million. The IGA is for $750,000. The Town support is budgeted for $690,000. Level of Public Interest High. Sample Motion: I move for the denial/ approval of this CDOT IGA. Attachments: Link to CDOT IGA 34 100 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 1 of 26 STATE OF COLORADO INTERGOVERNMENTAL AGREEMENT Signature and Cover Page State Agency Department of Transportation Agreement Routing Number 20-HA4-XC-00018 Local Agency TOWN OF ESTES PARK Agreement Effective Date The later of the effective date or July 24, 2019 Agreement Description Construction of Intersection Improvements on US 36/Community Drive Project # AQC M405- 024 (23040) Region # 4 Contract Writer LSC Agreement Maximum Amount $905,907.00 THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT Each person signing this Agreement represents and warrants that he or she is duly authorized to execute this Agreement and to bind the Party authorizing his or her signature. STATE OF COLORADO Jared S. Polis, Governor Department of Transportation Shoshana M. Lew, Executive Director ___________________________________________ Joshua Laipply, P.E., Chief Engineer Date: _________________________ 2nd State or Local Agency Signature if Needed ___________________________________________ Signature ___________________________________________ By: (Print Name and Title) Date: _________________________ LEGAL REVIEW Philip J. Weiser, Attorney General ___________________________________________ Assistant Attorney General ___________________________________________ By: (Print Name and Title) 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:_____________________ LOCAL AGENCY TOWN OF ESTES PARK ___________________________________________ Signature ___________________________________________ By: (Print Name and Title) Date: _________________________ Agreement Expiration Date 10 years after the Effective Date, or the date of final payment for and final audit of the project, whichever occurs sooner. Todd A. Jirsa, Mayor 101 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 2 of 26 TABLE OF CONTENTS 1.PARTIES ................................................................................................................................................. 2 2.TERM AND EFFECTIVE DATE ........................................................................................................... 2 3.AUTHORITY .......................................................................................................................................... 3 4.PURPOSE ............................................................................................................................................... 3 5.DEFINITIONS ........................................................................................................................................ 4 6.STATEMENT OF WORK ...................................................................................................................... 6 7.PAYMENTS ........................................................................................................................................... 9 8.REPORTING - NOTIFICATION ......................................................................................................... 13 9.LOCAL AGENCY RECORDS ............................................................................................................. 14 10.CONFIDENTIAL INFORMATION-STATE RECORDS .................................................................... 15 11.CONFLICT OF INTEREST .................................................................................................................. 15 12.INSURANCE ........................................................................................................................................ 16 13.BREACH ............................................................................................................................................... 17 14.REMEDIES ........................................................................................................................................... 18 15.DISPUTE RESOLUTION ..................................................................................................................... 19 16.NOTICES AND REPRESENTATIVES ............................................................................................... 19 17.RIGHTS IN WORK PRODUCT AND OTHER INFORMATION ...................................................... 20 18.GOVERNMENTAL IMMUNITY ........................................................................................................ 21 19.STATEWIDE CONTRACT MANAGEMENT SYSTEM ................................................................... 21 20.GENERAL PROVISIONS .................................................................................................................... 21 21.COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3 -3) ..................................... 23 22.FEDERAL REQUIREMENTS ............................................................................................................. 26 23.DISADVANTAGED BUSINESS ENTERPRISE (DBE) ..................................................................... 26 24.DISPUTES ............................................................................................................................................ 26 EXHIBIT A, STATEMENT OF WORK EXHIBIT B, SAMPLE OPTION LETTER EXHIBIT C, FUNDING PROVISIONS EXHIBIT D, LOCAL AGENCY RESOLUTION EXHIBIT E, LOCAL AGENCY AGREEMENT ADMINISTRATION CHECKLIST EXHIBIT F, CERTIFICATION FOR FEDERAL-AID AGREEMENTS EXHIBIT G, DISADVANTAGED BUSINESS ENTERPRISE EXHIBIT H, LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES EXHIBIT I, FEDERAL-AID AGREEMENT PROVISIONS FOR CONSTRUCTION AGREEMENTS EXHIBIT J, ADDITIONAL FEDERAL REQUIREMENTS EXHIBIT K, FFATA SUPPLEMENTAL FEDERAL PROVISIONS EXHIBIT L, SAMPLE SUBRECIPIENT MONITORING AND RISK ASSESSMENT FORM EXHIBIT M, OMB UNIFORM GUIDANCE FOR FEDERAL AWARDS 1.PARTIES This Agreement is entered into by and between Local Agency named on the Signature and Cover Page for this Agreement (“Local Agency”), and the STATE OF COLORADO acting by and through the State agency named on the Signature and Cover Page for this Agreement (the “State” or “CDOT”). Local Agency 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 Agreement Funds shall be expended within the dates shown in Exhibit C for each respective phase (“Phase Performance Period(s)”). The State shall not be bound by any provision of this Agreement before the Effective Date, and shall have no obligation to pay Local Agency for any Work performed or expense incurred before 1) the Effective Date of this original Agreement; 2) before the encumbering document for the respective phase and the official Notice to Proceed for the respective phase; or 3) after the Final Phase Performance 102 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 3 of 26 End Date, as shown in Exhibit C. B.Initial Term The Parties’ respective performances under this Agreement shall commence on the Agreement Effective Date shown on the Signature and Cover Page for this Agreement and shall terminate on the date of notice of CDOT final acceptance (“Agreement Expiration Date”) shown on the Signature and Cover Page for this Agreement, unless sooner terminated or further extended in accordance with the terms of this Agreement. C.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. This subsection shall not apply to a termination of this Agreement by the State for breach by Local Agency, which shall be governed by §14.A.i. i.Method and Content The State shall notify Local Agency of such termination in accordance with §16. The notice shall specify the effective date of the termination and whether it affects all or a portion of this Agreement. ii.Obligations and Rights Upon receipt of a termination notice for termination in the public interest, Local Agency shall be subject to §14.A.i.a iii.Payments If the State terminates this Agreement in the public interest, the State shall pay Local Agency 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 Loc al Agency for a portion of actual out-of- pocket expenses, not otherwise reimbursed under this Agreement, incurred by Local Agency which are directly attributable to the uncompleted portion of Local Agency’s obligations, provided that the sum of any and all reimbursement shall not exceed the maximum amount payable to Local Agency hereunder. 3.AUTHORITY Authority to enter into this Agreement exists in the law as follows: A.Federal Authority Pursuant to Title I, Subtitle A, of the “Fixing America’s Surface Tran sportation Act” (FAST Act) of 2015, and to applicable provisions of Title 23 of the United States Code and implementing regulations at Title 23 of the Code of Federal Regulations, as may be amended, (collectively referred to hereinafter as the “Federal Provisions”), certain federal funds have been and are expected to continue to be allocated for transportation projects requested by Local Agency and eligible under the Surface Transportation Improvement Program that has been proposed by the State and approved by the Federal Highway Administration (“FHWA”). B.State Authority Pursuant to CRS §43-1-223 and to applicable portions of the Federal Provisions, the State is responsible for the general administration and supervision of performance of projects in the Pr ogram, including the administration of federal funds for a Program project performed by a Local Agency under a contract with the State. This Agreement is executed under the authority of CRS §§29-1-203, 43-1-110; 43-1-116, 43-2-101(4)(c) and 43-2-104.5. 4.PURPOSE The purpose of this Agreement is to disburse Federal funds to the Local Agency pursuant to CDOT’s Stewardship Agreement with the FHWA. 103 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 4 of 26 5.DEFINITIONS The following terms shall be construed and interpreted as follows: A.“Agreement” means this agreement, including all attached Exhibits, all documents incorporated by reference, all referenced statutes, rules and cited authorities, and any future modifications thereto. B.“Agreement Funds” means the funds that have been appropriated, designated, encumbered, or otherwise made available for payment by the State under this Agreement. C.“Award” means an award by a Recipient to a Subrecipient funded in whole or in part by a Federal Award. The terms and conditions of the Federal Award flow down to the Award unless the terms and conditions of the Federal Award specifically indicate otherwise. D.“Budget” means the budget for the Work described in Exhibit C. E.“Business Day” means any day in which the State is open and conducting business, but shall not include Saturday, Sunday or any day on which the State observes one of the holidays listed in §24 -11-101(1) C.R.S. F.“Consultant” means a professional engineer or designer hired by Local Agency to design the Work Product. G.“Contractor” means the general construction contractor hired by Local Agency to construct the Work. H.“CORA” means the Colorado Open Records Act, §§24 -72-200.1 et. seq., C.R.S. I.“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 and Cover Page for this Agreement. J.“Evaluation” means the process of examining Local Agency’s Work and rating it based on criteria established in §6, Exhibit A and Exhibit E. K.“Exhibits” means the following exhibits attached to this Agreement: i.Exhibit A, Statement of Work. ii.Exhibit B, Sample Option Letter. iii.Exhibit C, Funding Provisions iv.Exhibit D, Local Agency Resolution v.Exhibit E, Local Agency Contract Administration Checklist vi.Exhibit F, Certification for Federal-Aid Contracts vii.Exhibit G, Disadvantaged Business Enterprise viii.Exhibit H, Local Agency Procedures for Consultant Services ix.Exhibit I, Federal-Aid Contract Provisions for Construction Contracts x.Exhibit J, Additional Federal Requirements xi.Exhibit K, The Federal Funding Accountability and Transparency Act of 2006 (FFATA) Supplemental Federal Provisions xii.Exhibit L, Sample Sub-Recipient Monitoring and Risk Assessment Form xiii.Exhibit M, Supplemental Provisions for Federal Awards Subject to The Office of Management and Budget Uniform Administrative Requirements, Cost principles, and Audit Requirements for Federal Awards (the “Uniform Guidance”) L.“Federal Award” means an award of Federal financial assistance or a cost-reimbursement contract under the Federal Acquisition Requirements by a Federal Awarding Agency to a 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 contractor or payments to an individual that is a beneficiary of a Federal program. 104 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 5 of 26 M.“Federal Awarding Agency” means a Federal agency providing a Federal Award to a Recipient. N.“FHWA” means the Federal Highway Administration, which is one of the twelve administrations under the Office of the Secretary of Transportation at the U.S. Department of Transportation. FHWA provides stewardship over the construction, maintenance and preservation of the Nation’s highways and tunnels. FHWA is the Federal Awarding Agency for the Federal Award which is the subject of this Agreement. O “Goods” means any movable material acquired, produced, or delivered by Local Agency as set forth in this Agreement and shall include any movable material acquired, produced, or delivered by Local Agency in connection with the Services. P.“Incident” means any accidental or deliberate event that results in or constitutes an imminent threat of the unauthorized access or disclosure of State Confidential Information or of the unauthorized modification, disruption, or destruction of any State Records. Q.“Initial Term” means the time period defined in §2.B R.“Notice to Proceed” means the letter issued by the State to the Local Agency stating the date the Local Agency can begin work subject to the conditions of this Agreement. S.“OMB” means the Executive Office of the President, Office of Management and Budget. T.“Oversight” means the term as it is defined in the Stewardship Agreement between CDOT and the FHWA. U.“Party” means the State or Local Agency, and “Parties” means both the State and Local Agency. 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; and any other information that is linked or linkable to an individual, such as medical, educational, financial, and employment information. PII includes, but is not limited to, all information defined as personally identifiable information in §24-72-501 C.R.S. W.“Recipient” means the Colorado Department of Transportation (CDOT) for this Federal Award. X.“Services” means the services to be performed by Local Agency as set forth in this Agreement, and shall include any services to be rendered by Local Agency 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. Z.“State Fiscal Rules” means the fiscal rules promulgated by the Colorado State Controller pursuant to §24-30-202(13)(a). 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 Purchasing Director” means the position described in the Colorado Procurement Code and its implementing regulations. CC.“State Records” means any and all State data, information, and records, regardless of physical form, including, but not limited to, information subject to disclosure under CORA. DD.“Subcontractor” means third-parties, if any, engaged by Local Agency to aid in performance of the Work. 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. FF. “Uniform Guidance” means the Office of Management and Budget Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, which supersedes requirements from OMB Circulars A-21, A-87, A-110, A-122, A-89, A-102, and A-133, and the 105 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 6 of 26 guidance in Circular A-50 on Single Audit Act follow-up. GG. “Work” means the delivery of the Goods and performance of the Services in compliance with CDOT’s Local Agency Manual described in 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, 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 in an Exhibit shall be construed and interpreted as defined in that Exhibit. i.Design If the Work includes preliminary design, final design, design work sheets, or special provisions and estimates (collectively referred to as the “Plans”), Local Agency shall ensure that it and its Contractors comply with and are responsible for satisfying the following requirements: a.Perform or provide the Plans to the extent required by the nature of the Work. b.Prepare final design in accordance with the requirements of the latest edition of the American Association of State Highway Transportation Officials (AASHTO) manual or other standard, such as the Uniform Building Code, as approved by the State. c.Prepare provisions and estimates in accordance with the most current version of the State’s Roadway and Bridge Design Manuals and Standard Specifications for Road and Bridge Construction or Local Agency specifications if approved by the State. d.Include details of any required detours in the Plans in order to prevent any interference of the construction Work and to protect the traveling public. e.Stamp the Plans as produced by a Colorado registered professional engineer. f.Provide final assembly of Plans and all other necessary documents. g.Ensure the Plans are accurate and complete. h.Make no further changes in the Plans following the award of the construction contract to Contractor unless agreed to in writing by the Parties. The Plans shall be considered final when approved in writing by CDOT, and when final, they will be deemed incorporated herein. ii.Local Agency Work a.Local Agency shall comply with the requirements of the Americans With Disabilities Act (ADA) 42 U.S.C. § 12101, et. seq., and applicable federal regulations and standards as contained in the document “ADA Accessibility Requirements in CDOT Transportation 6.STATEMENT OF WORK Local Agency shall complete the Work as described in this Agreement and in accordance with the provisions of Exhibit A, and the Local Agency Manual. The State shall have no liability to compensate Local Agency for the delivery of any Goods or the performance of any Services that are not specifically set forth in this Agreement. Work may be divided into multiple phases that have separate periods of performance. The State may not compensate for Work that Local Agency performs outside of its designated phase performance period. The performance period of phases, including, but not limited to Design, Construction, Right of Way, Utilities, or Environment phases, are identified in Exhibit C. The State may unilaterally modify Exhibit C from time to time, at its sole discretion, to extend the period of performance for a phase of Work authorized under this Agreement. To exercise this phase performance period extension option, the State will provide written notice to Local Agency in a form substantially equivalent to Exhibit B. The State’s unilateral extension of phase performance periods will not amend or alter in any way the funding provisions or any other terms specified in this Agreement, notwithstanding the options listed under §7.E A.Local Agency Commitments 106 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 7 of 26 Projects”. b.Local Agency shall afford the State ample opportunity to review the Plans and shall make any changes in the Plans that are directed by the State to comply with FHWA requirements. c.Local Agency may enter into a contract with a Consultant to perform all or any portion of the Plans and/or construction administration. Provided, however, if federal-aid funds are involved in the cost of such Work to be done by such Consultant, such Consultant contract (and the performance provision of the Plans under the contract) must comply with all applicable requirements of 23 C.F.R. Part 172 and with any procedures implementing those requirements as provided by the State, including those in Exhibit H. If Local Agency enters into a contract with a Consultant for the Work: 1)Local Agency shall submit a certification that procurement of any Consultant contract complies with the requirements of 23 C.F.R. 172.5(1) prior to entering into such Consultant contract, subject to the State’s approval. If not approved by the State, Local Agency shall not enter into such Consultant contract. 2)Local Agency shall ensure that all changes in the Consultant contract have prior approval by the State and FHWA and that they are in writing. Immediately after the Consultant contract has been awarded, one copy of the executed Consultant contract and any amendments shall be submitted to the State. 3)Local Agency shall require that all billings under the Consultant contract comply with the State’s standardized billing format. Examples of the billing formats are available from the CDOT Agreements Office. 4)Local Agency (and any Consultant) shall comply with 23 C.F.R. 172.5(b) and (d) and use the CDOT procedures described in Exhibit H to administer the Consultant contract. 5)Local Agency may expedite any CDOT approval of its procurement process and/or Consultant contract by submitting a letter to CDOT from Local Agency’s attorney/authorized representative certifying compliance with Exhibit H and 23 C.F.R. 172.5(b)and (d). 6)Local Agency shall ensure that the Consultant contract complies with the requirements of 49 CFR 18.36(i) and contains the following language verbatim: (a) The design work under this Agreement shall be compatible with the requirements of the contract between Local Agency and the State (which is incorporated herein by this reference) for the design/construction of the project. The State is an intended third - party beneficiary of this agreement for that purpose. (b) Upon advertisement of the project work for construction, the consultant shall make available services as requested by the State to assist the State in the evaluation of construction and the resolution of construction problems that may arise during the construction of the project. (c)The consultant shall review the construction Contractor’s shop drawings for conformance with the contract documents and compliance with the provisions of the State’s publication, Standard Specifications for Road and Bridge Construction, in connection with this work. (d)The State, in its sole discretion, may review construction plans, special provision s and estimates and may require Local Agency to make such changes therein as the State determines necessary to comply with State and FHWA requirements. iii.Construction If the Work includes construction, Local Agency shall perform the construction in accordance with the approved design plans and/or administer the construction in accordance with Exhibit E. Such administration shall include Work inspection and testing; approving sources of materials; performing required plant and shop inspections; documentation of contract payments, testing and inspection activities; preparing and approving pay estimates; preparing, approving and securing the funding for contract modification orders and minor contract revisions; processing construction Contractor claims; construction supervision; and meeting the quality control requirements of the FHWA/CDOT Stewardship Agreement, as described in Exhibit E. 107 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 8 of 26 a.The State may, after providing written notice of the reason for the suspension to Local Agency, suspend the Work, wholly or in part, due to the failure of Local Agency or its Contractor to correct conditions which are unsafe for workers or for such periods as the State may deem necessary due to unsuitable weather, or for conditions considered unsuitable for the prosecution of the Work, or for any other condition or reason deemed by the State to be in the public interest. b.Local Agency shall be responsible for the following: 1)Appointing a qualified professional engineer, licensed in the State of Colorado, as Local Agency Project Engineer (LAPE), to perform engineering administration. The LAPE shall administer the Work in accordance with this Agreement, the requirements of the construction contract and applicable State procedures, as defined in the CDOT Local Agency Manual (https://www.codot.gov/business/designsupport/bulletins_manuals/2006- local-agency-manual). 2)For the construction Services, advertising the call for bids, following its approval by the State, and awarding the construction contract(s) to the lowest responsible bidder(s). (a)All Local Agency’s advertising and bid awards pursuant to this Agreement shall comply with applicable requirements of 23 U.S.C. §112 and 23 C.F.R. Parts 633 and 635 and C.R.S. § 24-92-101 et seq. Those requirements include, without limitation, that Local Agency and its Contractor(s) incorporate Form 1273 (Exhibit I) in its entirety, verbatim, into any subcontract(s) for Services as terms and conditions thereof, as required by 23 C.F.R. 633.102(e). (b)Local Agency may accept or reject the proposal of the apparent low bidder for Work on which competitive bids have been received. Local Agency must accept or reject such bids within 3 working days after they are publicly opened. (c)If Local Agency accepts bids and makes awards that exceed the amount of available Agreement Funds, Local Agency shall provide the additional funds necessary to complete the Work or not award such bids. (d)The requirements of §6.A.iii.b.2 also apply to any advertising and bid awards made by the State. (e)The State (and in some cases FHWA) must approve in advance all Force Account Construction, and Local Agency shall not initiate any such Services until the State issues a written Notice to Proceed. iv.Right of Way (ROW) and Acquisition/Relocation a.If Local Agency purchases a ROW for a State highway, including areas of influence, Local Agency shall convey the ROW to CDOT promptly upon the completion of the project/construction. b.Any acquisition/relocation activities shall comply with all applicable federal and State statutes and regulations, including but not limited to, the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, the Uniform Relocation Assistance and Real Property Acquisition Policies for Federal and Federally Assisted Programs, as amended (49 C.F.R. Part 24), CDOT’s Right of Way Manual, and CDOT’s Policy and Procedural Directives. c.The Parties’ respective responsibilities for ensuring compliance with acquisition, relocation and incidentals depend on the level of federal participation as detailed in CDOT’s Right of Way Manual (located at http://www.codot.gov/business/manuals/right-of-way); however, the State always retains oversight responsibilities. d.The Parties’ respective responsibilities at each level of federal participation in CDOT’s Right of Way Manual, and the State’s reimbursement of Local Agency costs will be determined pursuant the following categories: 1)Right of way acquisition (3111) for federal participation and non -participation; 2)Relocation activities, if applicable (3109); 3)Right of way incidentals, if applicable (expenses incidental to acquisition/relocation of right of way – 3114). 108 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 9 of 25 v. Utilities If necessary, Local Agency shall be responsible for obtaining the proper clearance or approval from any utility company that may become involved in the Work. Prior to the Work being advertised for bids, Local Agency shall certify in writing to the State that all such clearances have been obtained. vi. Railroads If the Work involves modification of a railroad company’s facilities and such modification will be accomplished by the railroad company, Local Agency shall make timely application to the Public Utilities Commission (“PUC”) requesting its order providing for the installation of the proposed improvements. Local Agency shall not proceed with that part of the Work before obtaining the PUC’s order. Local Agency shall also establish contact with the railroad company involved for the purpose of complying with applicable provisions of 23 C.F.R. 646, subpart B, concerning federal-aid projects involving railroad facilities, and: a. Execute an agreement with the railroad company setting out what work is to be accomplished and the location(s) thereof, and which costs shall be eligible for federal participation. b. Obtain the railroad’s detailed estimate of the cost of the Work. c. Establish future maintenance responsibilities for the proposed installation. d. Proscribe in the agreement the future use or dispositions of the proposed improvements in the event of abandonment or elimination of a grade crossing. e. Establish future repair and/or replacement responsibilities, as between the railroad company and the Local Agency, in the event of accidental destruction or damage to the installation. vii. Environmental Obligations Local Agency shall perform all Work in accordance with the requirements of current federal and State environmental regulations, including the National Environmental Policy Act of 1969 (NEPA) as applicable. viii. Maintenance Obligations Local Agency shall maintain and operate the Work constructed under this Agreement at its own cost and expense during their useful life, in a manner satisfactory to the State and FHWA. Local Agency shall conduct such maintenance and operations in accordance with all applicable statutes, ordinances, and regulations pertaining to maintaining such improvements. The State and FHWA may make periodic inspections to verify that such improvements are being adequately maintained. ix. Monitoring Obligations Local Agency shall respond in a timely manner to and participate fully with the monitoring activities described in §7.F.vi. x. Limitations The Local Agency 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 the Local Agency. The Local Agency shall not pay or be liable for any claimed interest, late charges, fees, taxes or penalties of any nature except as required by the Local Agency’s laws or policies. B. State’s Commitments i. The State will perform a final project inspection of the Work as a quality control/assurance activity. When all Work has been satisfactorily completed, the State will sign the FHWA Form 1212. ii. Notwithstanding any consents or approvals given by the State for the Plans, the State shall not be liable or responsible in any manner for the structural design, details or construction of any Work constituting major structures designed by, or that are the responsibility of, Local Agency, as identified in Exhibit E. 7. PAYMENTS A. Maximum Amount Payments to Local Agency are limited to the unpaid, obligated balance of the Agreement Funds set forth in Exhibit C. The State shall not pay Local Agency any amount under this Agreement that exceeds the Agreement Maximum set forth in Exhibit C. B. Payment Procedures i. Invoices and Payment 109 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 9 of 26 v.Utilities If necessary, Local Agency shall be responsible for obtaining the proper clearance or approval from any utility company that may become involved in the Work. Prior to the Work being advertised for bids, Local Agency shall certify in writing to the State that all such clearances have been obtained. vi.Railroads If the Work involves modification of a railroad company’s facilities and such modification will be accomplished by the railroad company, Local Agency shall make timely application to the Public Utilities Commission (“PUC”) requesting its order providing for the installation of the proposed improvements. Local Agency shall not proceed with that part of the Work before obtaining the PUC’s order. Local Agency shall also establish contact with the railroad company involved for the purpose of complying with applicable provisions of 23 C.F.R. 646, subpart B, concerning federal - aid projects involving railroad facilities, and: a.Execute an agreement with the railroad company setting out what work is to be accomplished and the location(s) thereof, and which costs shall be eligible for federal participation. b.Obtain the railroad’s detailed estimate of the cost of the Work. c.Establish future maintenance responsibilities for the proposed installation. d.Proscribe in the agreement the future use or dispositions of the proposed improvements in the event of abandonment or elimination of a grade crossing. e.Establish future repair and/or replacement responsibilities, as between the railroad company and the Local Agency, in the event of accidental destruction or damage to the installation. vii.Environmental Obligations Local Agency shall perform all Work in accordance with the requirements of current federal and State environmental regulations, including the National Environmental Policy Act of 1969 (NEPA) as applicable. viii.Maintenance Obligations Local Agency shall maintain and operate the Work constructed under this Agreement at its own cost and expense during their useful life, in a manner satisfactory to the State and FHWA. Local Agency shall conduct such maintenance and operations in accordance with all applicable statutes, ordinances, and regulations pertaining to maintaining such improvements. The State and FHWA may make periodic inspections to verify that such improvements are being adequately maintained. ix.Monitoring Obligations Local Agency shall respond in a timely manner to and participate fully with the monitoring activities described in §7.F.vi. B.State’s Commitments i.The State will perform a final project inspection of the Work as a quality control/assurance activity. When all Work has been satisfactorily completed, the State will sign the FHWA Form 1212. ii.Notwithstanding any consents or approvals given by the State for the Plans, the State sha ll not be liable or responsible in any manner for the structural design, details or construction of any Work constituting major structures designed by, or that are the responsibility of, Local Agency, as identified in Exhibit E. 7.PAYMENTS A.Maximum Amount Payments to Local Agency are limited to the unpaid, obligated balance of the Agreement Funds set forth in Exhibit C. The State shall not pay Local Agency any amount under this Agreement that exceeds the Agreement Maximum set forth in Exhibit C. B.Payment Procedures i.Invoices and Payment 110 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 11 of 26 defined below in §9.A.). C.Matching Funds Local Agency shall provide matching funds as provided in §7.A. and Exhibit C. Local Agency 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. Local Agency’s obligation to pay all or any part of any matching funds, whether direct or contingent, only extend to funds duly and lawfully appropriated for the purposes of this Agreement by the authorized representatives of Local Agency and paid into Local Agency’s treasury. Local Agency represents to the State that the amount designa ted “Local Agency Matching Funds” in Exhibit C has been legally appropriated for the purpose of this Agreement by its authorized representatives and paid into its treasury. Local Agency may evidence such obligation by an appropriate ordinance/resolution or other authority letter expressly authorizing Local Agency to enter into this Agreement and to expend its match share of the Work. A copy of any such ordinance/resolution or authority letter is attached hereto as Exhibit D. Local Agency 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 Local Agency. Local Agency shall not pay or be liable for any claimed interest, late charges, fees, taxes, or penalties of any nature, except as required by Local Agency’s laws or policies. D.Reimbursement of Local Agency Costs The State shall reimburse Local Agency’s allowable costs, not exceeding the maximum total amount described in Exhibit C and §7. The applicable principles described in 2 C.F.R. Part 200 shall govern the State’s obligation to reimburse all costs incurred by Local Agency and submitted to the State for reimbursement hereunder, and Local Agency shall comply with all such princip les. The State shall reimburse Local Agency for the federal-aid share of properly documented costs related to the Work after review and approval thereof, subject to the provisions of this Agreement and Exhibit C. Local Agency costs for Work performed 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. Local Agency costs for Work performed after any Performance Period End Date for a respective phase of the Work, is not reimbursable. Allowable costs shall be: i.Reasonable and necessary to accomplish the Work and for the Goods and Services provided. ii.Actual net cost to Local Agency (i.e. the price paid minus any items of value received by Local Agency that reduce the cost actually incurred). E.Unilateral Modification of Agreement Funds Budget by State Option Letter The State may, at its discretion, issue an “Option Letter” to Local Agency to add or modify Work phases in the Work schedule in Exhibit C if such modifications do not increase total budgeted Agreement Funds. Such Option Letters shall amend and update Exhibit C, Sections 2 or 4 of the Table, and sub- sections B and C of the Exhibit C. Option Letters shall not be deemed valid until signed by the State Controller or an authorized delegate. Modification of Exhibit C by unilateral Option Letter is permitted only in the specific scenarios listed below. The State will exercise such options by providing Local Agency a fully executed Option Letter, in a form substantially equivalent to Exhibit B. Such Option Letters will be incorporated into this Agreement. i.Option to Begin a Phase and/or Increase or Decrease the Encumbrance Amount The State may require by Option Letter that Local Agency begin a new Work phase that may include Design, Construction, Environmental, Utilities, ROW Incide ntals or Miscellaneous Work (but may not include Right of Way Acquisition/Relocation or Railroads) as detailed in Exhibit A. Such Option Letters may not modify the other terms and conditions stated in this Agreement, and must decrease the amount budgeted and encumbered for one or more other Work phases so that the total amount of budgeted Agreement Funds remains the same. The State may also issue a unilateral Option Letter to simultaneously increase and decrease the total encumbrance amount of two or more existing Work phases, as long as the total amount of budgeted Agreement Funds remains the same, replacing the original Agreement Funding exhibit (Exhibit C) with an updated Exhibit C-1 (with subsequent exhibits labeled C-2, C-3, etc.). ii.Option to Transfer Funds from One Phase to Another Phase. 111 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 12 of 26 The State may require or permit Local Agency to transfer Agreement Funds from one Work phase (Design, Construction, Environmental, Utilities, ROW Incidentals or Miscellaneous) to another phase as a result of changes to State, federal, and local match funding. In such case, the original funding exhibit (Exhibit C) will be replaced with an updated Exhibit C-1 (with subsequent exhibits labeled C-2, C-3, etc.) attached to the Option Letter. The Agreement Funds transfe rred from one Work phase to another are subject to the same terms and conditions stated in the original Agreement with the total budgeted Agreement Funds remaining the same. The State may unilaterally exercise this option by providing a fully executed Opti on Letter to Local Agency within thirty (30) days before the initial targeted start date of the Work phase, in a form substantially equivalent to Exhibit B. iii. Option to Exercise Options i and ii. The State may require Local Agency to add a Work phase as detailed in Exhibit A, and encumber and transfer Agreement Funds from one Work phase to another. The original funding exhibit (Exhibit C) in the original Agreement will be replaced with an updated Exhibit C-1 (with subsequent exhibits labeled C-2, C-3, etc.) attached to the Option Letter. The addition of a Work phase and encumbrance and transfer of Agreement Funds are subject to the same terms and conditions stated in the original Agreement with the total budgeted Agreement Funds remaining the same. The State may unilaterally exercise this option by providing a fully executed Option Letter to Local Agency within 30 days before the initial targeted start date of the Work phase, in a form substantially equivalent to Exhibit B. iv. Option to Update a Work Phase Performance Period and/or modify information required under the OMB Uniform Guidance, as outlined in Exhibit C. The State may update any information contained in Exhibit C, Sections 2 and 4 of the Table, and sub-sections B and C of the Exhibit C. F. Accounting Local Agency shall establish and maintain accounting systems in accordance with generally accepted accounting standards (a separate set of accounts, or as a separate and integral part of its current accounting scheme). Such accounting systems shall, at a minimum, provide as follows: i. Local Agency Performing the Work If Local Agency is performing the Work, it shall document all allowable costs, including any approved Services contributed by Local Agency or subcontractors, using payrolls, time rec ords, invoices, contracts, vouchers, and other applicable records. ii. Local Agency-Checks or Draws Checks issued or draws made by Local Agency shall be made or drawn against properly signed vouchers detailing the purpose thereof. Local Agency shall keep on file all checks, payrolls, invoices, contracts, vouchers, orders, and other accounting documents in the office of Local Agency, clearly identified, readily accessible, and to the extent feasible, separate and apart from all other Work documents. iii. State-Administrative Services The State may perform any necessary administrative support services required hereunder. Local Agency shall reimburse the State for the costs of any such services from the budgeted Agreement Funds as provided for in Exhibit C. If FHWA Agreement Funds are or become unavailable, or if Local Agency terminates this Agreement prior to the Work being approved by the State or otherwise completed, then all actual incurred costs of such services and assistance provided by the State shall be reimbursed to the State by Local Agency at its sole expense. iv. Local Agency-Invoices Local Agency’s invoices shall describe in detail the reimbursable costs incurred by Local Agency for which it seeks reimbursement, the dates such costs were incurred and the amounts thereof, and Local Agency shall not submit more than one invoice per month. v. Invoicing Within 60 Days 112 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 13 of 26 The State shall not be liable to reimburse Local Agency for any costs invoiced more than 60 days after the date on which the costs were incurred, including costs included in Local Agency’s final invoice. The State may withhold final payment to Local Agency at the State’s sole discretion until completion of final audit. Any costs incurred by Local Agency that are not allowable under 2 C.F.R. Part 200 shall be Local Agency’s responsibility, and the State will deduct such disallowed costs from any payments due to Local Agency. The State will not reimburse costs for Work performed after the Performance Period End Date for a respective Work phase . The State will not reimburse costs for Work performed prior to Performance Period End Date, but for which an invoice is received more than 60 days after the Performance Period End Date. vi. Risk Assessment & Monitoring Pursuant to 2 C.F.R. 200.331(b), – CDOT will evaluate Local Agency’s risk of noncompliance with federal statutes, regulations, and terms and conditions of this Agreement. Local Agency shall complete a Risk Assessment Form (Exhibit L) when that may be requested by CDOT. The risk assessment is a quantitative and/or qualitative determination of the potential for Local Agency’s non-compliance with the requirements of the Federal Award. The risk assessment will evaluate some or all of the following factors: 1. Experience: Factors associated with the experience and history of the Subrecipient with the same or similar Federal Awards or grants. 2. Monitoring/Audit: Factors associated with the results of the Subrecipient’s previous audits or monitoring visits, including those performed by the Federal Awarding Agency, when the Subrecipient also receives direct federal funding. Include audit results if Subrecipient receives single audit, where the specific award being assessed was selected as a major program. 3. Operation: Factors associated with the significant aspects of the Subrecipient’s operations, in which failure could impact the Subrecipient’s ability to perform and account for the contracted goods or services. 4. Financial: Factors associated with the Subrecipient’s financial stability and ability to comply with financial requirements of the Federal Award. 5. Internal Controls: Factors associated with safeguarding assets and resources, deterring and detecting errors, fraud and theft, ensuring accuracy and completeness of accounting data, producing reliable and timely financial and management information, and ensuring adherence to its policies and plans. 6. Impact: Factors associated with the potential impact of a Subrecipient’s non -compliance to the overall success of the program objectives. 7. Program Management: Factors associated with processes to manage critical personnel, approved written procedures, and knowledge of rules and regulations regarding federal -aid projects. Following Local Agency’s completion of the Risk Assessment Tool (Exhibit L), CDOT will determine the level of monitoring it will apply to Local Agency’s performance of the Work. This risk assessment may be re-evaluated after CDOT begins performing monitoring activities. G. Close Out Local Agency shall close out this Award within 90 days after the Final Phase Performance End Date. Close out requires Local Agency’s submission to the State of all deliverables defined in this Agreement, and Local Agency’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 FHWA has not closed this Federal Award within 1 year and 90 days after the Final Phase Performance End Date due to Local Agency’s failure to submit required docume ntation, then Local Agency may be prohibited from applying for new Federal Awards through the State until such documentation is submitted and accepted. 8. REPORTING - NOTIFICATION A. Quarterly Reports In addition to any reports required pursuant to §19 or pursuant to any exhibit, for any contract having a term longer than 3 months, Local Agency shall submit, on a quarterly basis, a written report specifying 113 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 14 of 26 progress made for each specified performance measure and standard in this Agreement. Such progres s 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 (5) Business Days following the end of each calendar quarter or at such time as otherwise specified by the State. B. Litigation Reporting If Local Agency 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 Local Agency’s ability to perform its obligations under this Agreement, Local Agency 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 in §16. C. Performance and Final Status Local Agency shall submit all financial, performance and other reports to the State no later than 60 calendar days after the Final Phase Performance End Date or sooner termination of this Agreement, containing an Evaluation of Subrecipient’s performance and the final status of Subrecipient’s obligations hereunder. D. Violations Reporting Local Agency must disclose, in a timely manner, in writing to the State and FHWA, all violations of federal or State criminal law involving fraud, bribery, or gratuity violations potentially affecting the Federal Award. Penalties for noncompliance may include suspension or debarment (2 CFR Part 180 and 31 U.S.C. 3321). 9. LOCAL AGENCY RECORDS A. Maintenance Local Agency 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 or the de livery of Services (including, but not limited to the operation of programs) or Goods hereunder. Local Agency shall maintain such records for a period (the “Record Retention 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. 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 Local Agency 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 prop erty. B. Inspection Local Agency shall permit the State to audit, inspect, examine, excerpt, copy, and transcribe Local Agency Records during the Record Retention Period. Local Agency shall make Local Agency Records available during normal business hours at Local Agency’s office or place of business, or at other mutually agreed upon times or locations, upon no fewer than 2 Business Days’ notice from the State, unless the State determines that a shorter period of notice, or no notice, is necessary to protec t the interests of the State. C. Monitoring The State will monitor Local Agency’s performance of its obligations under this Agreement using procedures as determined by the State. The State shall monitor Local Agency’s performance in a manner that does not unduly interfere with Local Agency’s performance of the Work. D. Final Audit Report Local Agency shall promptly submit to the State a copy of any final audit report of an audit performed on Local Agency’s records that relates to or affects this Agreement or the Work, whether the audit is 114 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 15 of 26 conducted by Local Agency or a third party. 10. CONFIDENTIAL INFORMATION-STATE RECORDS A. Confidentiality Local Agency shall hold and maintain, and cause all Subcontractors to hold and maintain, any and all State Records that the State provides or makes available to Local Agency for the sole and exclusive benefit of the State, unless those State Records are otherwise publicly available at the time of disclosure or are subject to disclosure by Local Agency under CORA. Local Agency shall not, without prior written approval of the State, use for Local Agency’s own benefit, publish, copy, or otherwise disclose to any third party, or permit the use by any third party for its benefit or to the detriment of the State, any State Records, except as otherwise stated in this Agreement. Local Agency shall provide for the security of all State Confidential Information in accordance with all policies promulgated by the Colorado Office of Information Security and all applicable laws, rules, p olicies, publications, and guidelines. Local Agency shall immediately forward any request or demand for State Records to the State’s principal representative. B. Other Entity Access and Nondisclosure Agreements Local Agency 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. Local Agency shall ensure all such agents, employees, assigns, and Subcontractors sign nondisclosure agreements with provisions at least as protective as those in this Agreement, and that the nondisclosure agreements are in force at all times the agent, employee, assign or Subcontractor has access to any State Confidential Information. Local Agency shall provide copies of those signed nondisclosure agreements to the State upon request. C. Use, Security, and Retention Local Agency shall use, hold and maintain State Confidential Information in compliance with any and all applicable laws and regulations in facilities located within the United States, and shall maintain a secure environment that ensures confidentiality of all State Confidential Information wherever located. Local Agency shall provide the State with access, subject to Local Agency’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, Local Agency shall return State Records provided to Local Agency or destroy such State Records and certify to the State that it has done so, as directed by the State. If Local Agency is prevented by law or regulation from returning or destroying State Confidential Information, Local Agency warrants it will guarantee the confidentiality of, and cease to use, such State Confidential Information. D. Incident Notice and Remediation If Local Agency becomes aware of any Incident, it 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 Local Agency can establish that none of Local Agency or any of its agents, employees, assigns or Subcontractors are the cause or source of the Incident, Local Agency shall be responsible for the cost of notifying each person who may have been impacted by the Incident. After an Incident, Local Agency 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. 11. CONFLICT OF INTEREST A. Actual Conflicts of Interest Local Agency 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 Local Agency under this Agreement. Such a conflict of interest would arise when a Local Agency 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. Officers, employees and agents of Local Agency may neither solicit nor accept gratuities, favors or anything of monetary value from contractors or parties to subcontracts. 115 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 16 of 26 B. Apparent Conflicts of Interest Local Agency 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, Local Agency shall refrain from any practices, activities or relationships that reasonably appear to be in conflict with the full performance of Local Agency’s obligations under this Agreement. C. Disclosure to the State If a conflict or the appearance of a conflict arises, or if Local Agency is uncertain whether a conflict or the appearance of a conflict has arisen, Local Agency 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. 12. INSURANCE Local Agency shall obtain and maintain, and ensure that each Subcontractor shall obtain and ma intain, 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 with an AM Best rating of A-VIII or better. A. Local Agency Insurance Local Agency is a "public entity" within the meaning of the Colorado Governmental Immunity Act, §24 - 10-101, et seq., C.R.S. (the “GIA”) and shall maintain 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. B. Subcontractor Requirements Local Agency shall ensure that each Subcontractor that is a public entity within the meaning of the GIA, maintains at all times during the terms of this Agreement, such liability insurance, by commercial policy or self-insurance, as is necessary to meet the Subcontractor’s obligations under the GIA. Local Agency shall ensure that each Subcontractor that is not a public entity within the meaning of the GIA, maintains at all times during the terms of this Agreement all of the following insurance policies: i. Workers’ Compensation Workers’ compensation insurance as required by state statute, and employers’ liability insurance covering all Local Agency or Subcontractor employees acting within the course and scope of their employment. ii. General Liability Commercial general liability insurance written on an Insurance Services Office occurrence form, covering premises operations, fire damage, independent contractors, products and completed operations, blanket contractual liability, personal injury, and advertising liability with minimum limits as follows: a. $1,000,000 each occurrence; b. $1,000,000 general aggregate; c. $1,000,000 products and completed operations aggregate; and d. $50,000 any 1 fire. iii. 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. iv. Protected Information Liability insurance covering all loss of State Confidential Information, such as PII, PHI, PCI, Tax Information, and CJI, and claims based on alleged violations of privacy rights through improper use or disclosure of protected information with minimum limits as follows: 116 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 17 of 26 a.$1,000,000 each occurrence; and b.$2,000,000 general aggregate. v.Professional Liability Insurance Professional liability insurance covering any damages caused by an error, omission or any negligent act with minimum limits as follows: a.$1,000,000 each occurrence; and b.$1,000,000 general aggregate. vi.Crime Insurance Crime insurance including employee dishonesty coverage with minimum limits as follows: a.$1,000,000 each occurrence; and b.$1,000,000 general aggregate. C.Additional Insured The State shall be named as additional insured on all commercial general liab ility policies (leases and construction contracts require additional insured coverage for completed operations) required of Local Agency and Subcontractors. In the event of cancellation of any commercial general liability policy, the carrier shall provide at least 10 days prior written notice to CDOT. D.Primacy of Coverage Coverage required of Local Agency and each Subcontractor shall be primary over any insurance or self - insurance program carried by Local Agency or the State. E.Cancellation All commercial 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 Local Agency and Local Agency shall forward such notice to the State in accordance with §16 within 7 days of Local Agency’s receipt of such notice. F.Subrogation Waiver All commercial insurance policies secured or maintained by Local Agency 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 Local Agency or the State, its agencies, institutions, organizations, officers, agents, employees, and volunteers. G.Certificates For each commercial insurance plan provided by Local Agency under this Agreement, Local Agency shall provide to the State certificates evidencing Local Agency’s insurance coverage required in this Agreement within 7 Business Days following the Effective Date. Local Agency shall provide to the State certificates evidencing Subcontractor insurance coverage required under this Agreement within 7 Business Days following the Effective Date, except that, if Local Agency’s subcontract is not in effect as of the Effective Date, Local Agency shall provide to the State certificates showing Subcontractor insurance coverage required under this Agreement within 7 Business Days following Local Agency’s execution of the subcontract. No later than 15 days before the expiration date of Local Agency’s or any Subcontractor’s coverage, Local Agency 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, Local Agency shall, within 7 Business Days following the request by the State, supply to the State evidence satisfactory to the State of compliance with the provisions of this §12. 13.BREACH A.Defined 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, shall be a breach. The institution of proceedings under any bankruptcy, insolvency, reorganization or similar law, by or against Local Agency, or the appointment of a receiver or similar officer for Local Agency or any of its property, which is not vacated or fully 117 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 18 of 26 stayed within 30 days after the institution of such proceeding, shall also constitute a breach. B.Notice and Cure Period In the event of a breach, the aggrieved Party shall give written notice of breach to the other Party. If the notified Party does not cure the breach, at its sole expense, within 30 days after the delivery of written notice, the Party may exercise any of the remedies as described in §14 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 the Agreement in order to protect the public interest of the State. 14.REMEDIES A.State’s Remedies If Local Agency 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 §13.B, shall have all of the remedies listed in this §14.A. 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 In the event of Local Agency’s uncured breach, the State may terminate this entire Agreement or any part of this Agreement. Local Agency shall continue performance of this Agreement to the extent not terminated, if any. a.Obligations and Rights To the extent specified in any termination notice, Local Agency shall not incur further obligations or render further performance past the effective date of such notice, and shall terminate outstanding orders and subcontracts with third parties. However, Local Agency 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, Local Agency shall assign to the State all of Local Agency's rights, title, and interest in and to such terminated orders or subcontracts. Upon termination, Local Agency shall take timely, reasonable and necessary action to protect and preserve property in the possession of Local Agency but in which the State has an interest. At the State’s request, Local Agency shall return materials owned by the State in Local Agency’s possession at the time of any termination. Local Agency 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 Local Agency for accepted Work received as of the date of termination. If, after termination by the State, the State agrees that Local Agency was not in breach or that Local Agency'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.C. c.Damages and Withholding Notwithstanding any other remedial action by the State, Local Agency shall remain liable to the State for any damages sustained by the State in connection with any breach by Local Agency, and the State may withhold payment to Local Agency for the purpose of mitigating the State’s damages until such time as the exact amount of damages due to the State from Local Agency is determined. The State may withhold any amount that may be due Local Agency 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 Local Agency’s performance with respect to all or any portion of the Work pending 118 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 19 of 26 corrective action as specified by the State without entitling Local Agency to an adjustment in price or cost or an adjustment in the performance schedule. Local Agency 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 Local Agency after the s uspension of performance. b.Withhold Payment Withhold payment to Local Agency until Local Agency corrects its Work. c.Deny Payment Deny payment for Work not performed, or that due to Local Agency’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 from the Work of any of Local Agency’s employees, agents, or Subcontractors from the Work whom the State deems incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable or whose continued relation to this Agreement is deemed by the State to be contrary to the public interest or the State’s best interest. e.Intellectual Property If any Work infringes a patent, copyright, trademark, trade secret, or other intellectual property right, Local Agency shall, as approved by the State (a) secure that right to use such Work for the State or Local Agency; (b) replace the Work with noninfringing Work or modify the Work so that it becomes noninfringing; or, (c) remove any infringing Work and refund the amount paid for such Work to the State. B.Local Agency’s Remedies If the State is in breach of any provision of this Agreement and does not cure such breach, Local Agency, following the notice and cure period in §13.B and the dispute resolution process in §15 shall have all remedies available at law and equity. 15.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 Local Agency for resolution. B.Resolution of Controversies If the initial resolution described in §15.A fails to resolve the dispute within 10 Business Days, Contractor shall submit any alleged breach of this Contract by the State to the Procurement Official of CDOT as described in §24-101-301(30), C.R.S. for resolution in accordance with the provisions of §§24- 106-109, 24-109-101.1, 24-109-101.5, 24-109-106, 24-109-107, 24-109-201 through 24-109-206, and 24-109-501 through 24-109-505, C.R.S., (the “Resolution Statutes”), except that if Contractor wishes to challenge any decision rendered by the Procurement Official, Contractor’s challenge shall be an appeal to the executive director of the Department of Personnel and Ad ministration, or their delegate, under the Resolution Statutes before Contractor pursues any further action as permitted by such statutes. Except as otherwise stated in this Section, all requirements of the Resolution Statutes shall apply including, without limitation, time limitations. 16.NOTICES AND REPRESENTATIVES Each individual identified below 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 b e delivered (i) by hand with receipt required, (ii) by certified or registered mail to such Party’s principal representative at the address set forth below or (iii) as an email with read receipt requested to the principal representative at the email address, if any, set forth below. 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 below. Either Party may change its principal representative or principal representative 119 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 20 of 26 contact information by notice submitted in accordance with this §16 without a formal amendment to this Agreement. Unless otherwise provided in this Agreement, notices shall be effective upon delivery of the written notice. For the State Colorado Department of Transportation (CDOT) Jake Schuch, PE, Project Manager Traffic 10601 W. 10th Street Greeley, CO 80634 970-350-2205 jake.schuch@state.co.us For the Local Agency TOWN OF ESTES PARK David Hook, Engineer PO BOX 1200 Estes Park, CO 80517 970-577-3586 dhook@estes.org 17.RIGHTS IN WORK PRODUCT AND OTHER INFORMATION A.Work Product Local Agency assigns to the State and its successors and assigns, the entire right, title, and interest in and to all causes of action, either in law or in equity, for past, present, or future infringement of intellectual property rights related to the Work Product and all works based on, derived from, or incorporating the Work Product. Whether or not Local Agency is under contract with the State at the time, Local Agency shall execute applications, assignments, and other documents, and shall render all other reasonable assistance requested by the State, to enable the State to secure patents, copyrights, licenses and other intellectual property rights related to the Work Product. The Parties intend the Work Product to be works made for hire. i.Copyrights To the extent that the Work Product (or any portion of the Work Product) would not be considered works made for hire under applicable law, Local Agency hereby assigns to the State, the entire right, title, and interest in and to copyrights in all Work Product and all works based upon, derived from, or incorporating the Work Product; all copyright applications, registrations, extensions, or renewals relating to all Work Product and all works based upon, derived from, or incorporating the Work Product; and all moral rights or similar rights with respect to the Work Product throughout the world. To the extent that Local Agency cannot make any of the assignments required by this section, Local Agency hereby grants to the State a perpetual, irrevocable, royalty-free license to use, modify, copy, publish, display, perform, transfer, distribute, sell, and create derivative works of the Work Product and all works based upon, derived from, or incorporating the Work Product by all means and methods and in any format now known or invented in the future. The State may assign and license its rights under this license. ii.Patents In addition, Local Agency grants to the State (and to recipients of Work Product distributed by or on behalf of the State) a perpetual, worldwide, no-charge, royalty-free, irrevocable patent license to make, have made, use, distribute, sell, offer for sale, import, transfer, and otherwise utilize, operate, modify and propagate the contents of the Work Product. Such license applies only to those pa tent claims licensable by Local Agency that are necessarily infringed by the Work Product alone, or by the combination of the Work Product with anything else used by the State. 120 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 21 of 26 B.Exclusive Property of the State Except to the extent specifically provided elsewhere in this Agreement, any pre-existing State Records, State software, research, reports, studies, photographs, negatives, or other documents, drawings, models, materials, data, and information shall be the exclusive property of the State (collective ly, “State Materials”). Local Agency shall not use, willingly allow, cause or permit Work Product or State Materials to be used for any purpose other than the performance of Local Agency’s obligations in this Agreement without the prior written consent of the State. Upon termination of this Agreement for any reason, Local Agency shall provide all Work Product and State Materials to the State in a form and manner as directed by the State. 18.GOVERNMENTAL IMMUNITY Liability for claims for injuries to persons or property arising from the negligence of the Parties, their departments, boards, commissions committees, bureaus, offices, employees and officials shall be controlled and limited by the provisions of the GIA; 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. 19.STATEWIDE CONTRACT MANAGEMENT SYSTEM If the maximum amount payable to Local Agency under this Agreement is $100,000 or greater, either on the Effective Date or at anytime thereafter, this §19 shall apply. Local Agency agrees to be governed by and comply with the provisions of §24-102-205, §24-102-206, §24-103-601, §24-103.5-101 and §24-105-102 C.R.S. regarding the monitoring of vendor performance and the reporting of contract performance information in the State’s contract management system (“Contract Management System” or “CMS”). Local Agency’s performance shall be subject to evaluation and review in accordance with the terms and conditions of this Agreement, Colorado statutes governing CMS, and State Fiscal Rules and State Controller policies. 20.GENERAL PROVISIONS A.Assignment Local Agency’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 Local Agency’s rights and obligations approved by the State shall be subject to the provisions of this Agreement B.Subcontracts Local Agency shall not enter into any subcontract in connection with its obligations under this Agreement without the prior, written approval of the State. Local Agency shall submit to the State a copy of each such subcontract upon request by the State. All subcontracts entered into by Local Agency in connection with this Agreement shall comply with all applicable federal and state laws and regulations, shall provide that they are governed by the laws of the State of Colorado, and shall be subject to all provisions of this Agreement. C.Binding Effect Except as otherwise provided in §20.A. all provisions of this Agreement, including the benefits and burdens, shall extend to and be binding upon the Parties’ respective successors and assigns. D.Authority Each Party represents and warrants to the other that the execution and delivery of this Agreement and the performance of such Party’s obligations have been duly authorized. E.Captions and References The captions and headings in this Agreement are for convenience of reference only, and shall not be used to interpret, define, or limit its provisions. All references in this Agreement to sections (whether spelled out or using the § symbol), subsections, exhibits or other attachments, are references to sections, subsections, exhibits or other attachments contained herein or incorporated as a part hereof, unless otherwise noted. F.Counterparts This Agreement may be executed in multiple, identical, original counterparts, each of which shall be 121 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 22 of 26 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.Jurisdiction and Venue 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. 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 contract amendments, shall conform to the policies promulgated 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.Order of Precedence In the event of a conflict or inconsistency between this Agreemen t and any exhibits or attachment such conflict or inconsistency shall be resolved by reference to the documents in the following order of priority: i.Colorado Special Provisions in the main body of this Agreement. ii.The provisions of the other sections of the main body of this Agreement. iii Exhibit A, Statement of Work. iv.Exhibit D, Local Agency Resolution. v.Exhibit C, Funding Provisions. vi.Exhibit B, Sample Option Letter. vii.Exhibit E, Local Agency Contract Administration Checklist. viii.Other exhibits in descending order of their attachment. 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 fo rce and effect, provided that the Parties can continue to perform their obligations under this Agreement in accordance with the intent of the Agreement. M.Survival of Certain Agreement Terms Any provision of this Agreement that imposes an obligation on a Party after termination or expiration of the Agreement shall survive the termination or expiration of the 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., Sub title 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 Local 122 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 23 of 26 Agency. Local Agency shall be solely responsible for any exemptions from the collection of excise, sales or use taxes that Local Agency may wish to have in place in connection with this Agreement. N.Third Party Beneficiaries Except for the Parties’ respective successors and assigns described in §20.C, 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 thi s Agreement are incidental to the Agreement, and do not create any rights for such third parties. O.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. P.CORA Disclosure To the extent not prohibited by federal law, this Agreement and the performance measures and standards required under §24-103.5-101 C.R.S., if any, are subject to public release through the CORA. Q.Standard and Manner of Performance Local Agency shall perform its obligations under this Agreement in accordance with the highest standards of care, skill and diligence in Local Agency’s industry, trade, or profession. R.Licenses, Permits, and Other Authorizations. Local Agency shall secure, prior to the Effective Date, and maintain at all times during the term of this Agreement, at its sole expense, all licenses, certifications, permits, and other authorizations required to perform its obligations under this Agreement, and shall ensure that all employees, agents and Subcontractors secure and maintain at all times during the term of their employment, agency or subcontract, all license, certifications, permits and other authorizations required to perform their obligations in relation to this Agreement. 21.COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3) These Special Provisions apply to all contracts except where noted in italics. A.STATUTORY APPROVAL. §24-30-202(1), C.R.S. This Contract shall not be valid until it has been approved by the Colorado State Controller or designee. If this Contract is for a Major Information Technology Project, as defined in §24-37.5-102(2.6), then this Contract shall not be valid until it has been approved by the State’s Chief Information Officer or designee. B.FUND AVAILABILITY. §24-30-202(5.5), C.R.S. Financial obligations of the State payable after the current State Fiscal Year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. C.GOVERNMENTAL IMMUNITY. Liability for claims for injuries to persons or property arising from the negligence of the State, its departments, boards, commissions committees, bureaus, offices, employees and officials shall be controlled and limited by the provisions of the Colorado Governmental Immunity Act, §24-10-101, et seq., C.R.S.; the Federal Tort Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b), and the State’s risk management statutes, §§24 -30-1501, et seq. C.R.S. No term or condition of this Contract shall be construed or interpreted as a waiver, express or implied, of any of the immun ities, rights, benefits, protections, or other provisions, contained in these statutes. D.INDEPENDENT CONTRACTOR Contractor shall perform its duties hereunder as an independent contractor and not as an employee. Neither Contractor nor any agent or employee of Contractor shall be deemed to be an agent or employee of the State. Contractor shall not have authorization, express or implied, to bind the State to any agreement, liability or understanding, except as expressly set forth herein. Contractor and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise provide such coverage for Contractor or any of its agents or employees. Contractor shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this Contract. Contractor shall (i) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (i i) 123 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 24 of 26 provide proof thereof when requested by the State, and (iii) be solely responsible for its acts and those of its employees and agents. E.COMPLIANCE WITH LAW. Contractor shall comply with all applicable federal and State laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices. F.CHOICE OF LAW, JURISDICTION, AND VENUE. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Contract. Any provision included or incorporated herein by reference which conflicts with said laws, rules, and regulations shall be null and void. All suits or actions related to this Contract shal l be filed and proceedings held in the State of Colorado and exclusive venue shall be in the City and County of Denver. G.PROHIBITED TERMS. Any term included in this Contract that requires the State to indemnify or hold Contractor harmless; requires the State to agree to binding arbitration; limits Contractor’s liability for damages resulting from death, bodily injury, or damage to tangible property; or that conflicts with this provision in any way shall be void ab initio. Nothing in this Contract shall be construed as a waiver of any provision of §24-106-109 C.R.S. Any term included in this Contract that limits Contractor’s liability that is not void under this section shall apply only in excess of any insurance to be maintained under this Contract, and no insurance policy shall be interpreted as being subject to any limitations of liability of this Contract. H.SOFTWARE PIRACY PROHIBITION. State or other public funds payable under this Contract shall not be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. Contractor hereby certifies and warrants that, during the term of this Contract and any extensions, Contractor has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that Contractor is in violation of this provision, the State may exercise any remedy available at law or in equity or under this Contract, including, without limitation, immediate termination of this Contract and any remedy consistent with federal copyright laws or applicable licensing restrictions. I.EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. §§24-18-201 and 24-50-507, C.R.S. The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this Contract. Contractor has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of Contractor’s services and Contractor shall not employ any person having such known interests. J.VENDOR OFFSET AND ERRONEOUS PAYMENTS. §§24-30-202(1) and 24-30-202.4, C.R.S. [Not applicable to intergovernmental agreements] Subject to §24-30-202.4(3.5), C.R.S., the State Controller may withhold payment under the State’s vendor offset intercept system for debts owed to State agencies for: (i) unpaid child support debts or child support arrearages; (ii) unpaid balances of tax, accrued interest, or other charges specified in §§39- 21-101, et seq., C.R.S.; (iii) unpaid loans due to the Student Loan Division of the Department of Higher Education; (iv) amounts required to be paid to the Unemployment Compensation Fund; and (v) other unpaid debts owing to the State as a result of final agency determination or judicial action. The State may also recover, at the State’s discretion, payments made to Contractor in error for any reason, including, but not limited to, overpayments or improper payments, and unexpended or excess funds received by Contractor by deduction from subsequent payments under this Contract, deduction from any payment due under any other contracts, grants or agreements between the State and Contractor, or by any other appropriate method for collecting debts owed to the State. K.PUBLIC CONTRACTS FOR SERVICES. §§8-17.5-101, et seq., C.R.S. [Not applicable to agreements relating to the offer, issuance, or sale of securities, investment advisory services or fund management services, sponsored projects, intergovernmental agreements, or information technology services or products and services] Contractor certifies, warrants, and agrees that it does not knowingly employ or contract with an illegal alien who will perform work under this Contract and will confirm the employment eligibility of all employees who are newly hired for employment in the United States to perform work under this Contract, through participation in the E-Verify Program or the State verification program established pursuant to §8-17.5-102(5)(c), C.R.S., Contractor shall not knowingly employ or contract with an illegal alien to perform work under this Contract or enter into a contract with a Subcontractor that fails to certify to Contractor that the Subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Contract. Contractor (i) shall not use E-Verify Program or the program procedures of the Colorado Department of Labor and Employment (“Department Program”) to undertake pre- employment screening of job applicants while this Contract is being performed, (ii) shall notify the Subcontractor and the contracting State agency or institution of higher education within 3 days if Contractor has actual knowledge that a Subcontractor is employing or contracting with an illegal alien for work under this Contract, (iii) shall terminate the subcontract if a Subcontractor does not stop employing or contracting with the illegal alien within 3 days of receiving 124 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 25 of 26 the notice, and (iv) shall comply with reasonable requests made in the course of an investigation, undertaken pursuant to §8-17.5-102(5), C.R.S., by the Colorado Department of Labor and Employment. If Contractor participates in the Department program, Contractor shall deliver to the contracting State agency, Institution of Higher Education or political subdivision, a written, notarized affirmation, affirming that Contractor has examined the legal work status of such employee, and shall comply with all of the other requirements of the Department program. If Contractor fails to comply with any requirement of this provision or §§8-17.5-101, et seq., C.R.S., the contracting State agency, institution of higher education or political subdivision may terminate this Contract for breach and, if so terminated, Contractor shall be liable for damages. L.PUBLIC CONTRACTS WITH NATURAL PERSONS. §§24-76.5-101, et seq., C.R.S. Contractor, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that Contractor (i) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (ii) shall comply with the provisions of §§24-76.5-101, et seq., C.R.S., and (iii) has produced one form of identification required by §24- 76.5-103, C.R.S. prior to the Effective Date of this Contract. Revised 11 -1 -18 THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK 125 OLA #: 331001981 Routing #: 20-HA4-XC-00018 Document Builder Generated Rev. 12/09/2016 Page 26 of 26 22. FEDERAL REQUIREMENTS Local Agency and/or their contractors, subcontractors, and consultants shall at all times during the execution of this Agreement strictly adhere to, and comply with, all applicable federal and State laws, and their implementing regulations, as they currently exist and may hereafter be amended. A summary of applicable federal provisions are attached hereto as Exhibit F, Exhibit I, Exhibit J, Exhibit K and Exhibit M are hereby incorporated by this reference. 23. DISADVANTAGED BUSINESS ENTERPRISE (DBE) Local Agency will comply with all requirements of Exhibit G and Local Agency Contract Administration Checklist regarding DBE requirements for the Work, except that if Local Agency desires to use its own DBE program to implement and administer the DBE provisions of 49 C.F.R. Part 26 under this Agreement, i t must submit a copy of its program’s requirements to the State for review and approval before the execution of this Agreement. If Local Agency uses any State- approved DBE program for this Agreement, Local Agency shall be solely responsible to defend that DBE program and its use of that program against all legal and other challenges or complaints, at its sole cost and expense. Such responsibility includes, without limitation, determinations concerning DBE eligibility requirements and certification, adequate legal and factual bases for DBE goals and good faith efforts. State approval (if provided) of Local Agency’s DBE program does not waive or modify the sole responsibility of Local Agency for use of its program. 24. DISPUTES Except as otherwise provided in this Agreement, any dispute concerning a question of fact arising under this Agreement which is not disposed of by agreement shall be decided by the Chief Engineer of the Department of Transportation. The decision of the Chief Engineer will be final and concl usive unless, within 30 calendar days after the date of receipt of a copy of such written decision, Local Agency mails or otherwise furnishes to the State a written appeal addressed to the Executive Director of CDOT. In connection with any appeal proceeding under this clause, Local Agency shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, Local Agency shall proceed diligently with the performance of this Agreement in accordance with the Chief Engineer’s decision. The decision of the Executive Director or his duly authorized representative for the determination of such appeals shall be final and conclusive and serve as final agency action. This dispute clause does not pre clude consideration of questions of law in connection with decisions provided for herein. Nothing in this Agreement, however, shall be construed as making final the decision of any administrative official, representative, or board on a question of law. THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK 126 Exhibit A – Page 1 of 1 EXHIBIT A, STATEMENT OF WORK The Colorado Department of Transportation (CDOT) will oversee the Town of Estes Park when Estes Park designs and constructs the following: intersection improvements on US 36 and Community Drive which will include construction of a roundabout, and box culvert extension (Herein referred to as “this work”). CDOT and Estes Park believe it will be beneficial to perform this work to improve mobility and safety through the intersection. This project will conform to all applicable state and federal regulations and standards. The design phase is underway and will be followed by a construction phase. Construction is anticipated to begin as early as calendar year 2020 and is anticipated to be completed within 12 months of commencing construction. THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK 127 EXHIBIT B, SAMPLE OPTION LETTER State Agency Department of Transportation Option Letter Number ZOPTLETNUM Local Agency ZVENDORNAME Agreement Routing Number ZSMARTNO Agreement Maximum Amount Initial term State Fiscal Year ZFYY_1 Extension terms State Fiscal Year ZFYY_2 State Fiscal Year ZFYY_3 State Fiscal Year ZFYY_4 State Fiscal Year ZFYY_5 Total for all state fiscal years $ ZFYA_1 $ ZFYA_2 $ ZFYA_3 $ ZFYA_4 $ ZFYA_5 $ ZPERSVC_MAX_ AMOUNT Agreement Effective Date The later of the effective date or ZSTARTDATEX Current Agreement Expiration Date ZTERMDATEX 1.OPTIONS: A. Option to extend for an Extension Term B. Option to unilaterally authorize the Local Agency to begin a phase which may include Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous ONLY (does not apply to Acquisition/Relocation or Railroads) and to update encumbrance amounts (a new Exhibit C must be attached with the option letter and shall be labeled C-1, future changes for this option shall be labeled as follows: C-2, C-3, C-4, etc.). C. Option to unilaterally transfer funds from one phase to another phase (a new Exhibit C must be attached with the option letter and shall be labeled C-1, future changes for this option shall be labeled as follows: C-2, C-3, C- 4, etc.). D. Option to unilaterally do both A and B (a new Exhibit C must be attached with the option letter and shall be labeled C-1, future changes for this option shall be labeled as follows: C-2, C-3, C-4, etc.). E. Option to update a Phase Performance Period and/or Modify OMB Uniform Guidance Information. 2.REQUIRED PROVISIONS: Option A In accordance with Section 2, C of the Original Agreement referenced above, the State hereby exercises its option for an additional term, beginning on (insert date) and ending on the current contract expiration date shown above, under the same funding provisions stated in the Original Contract Exhibit C, as amended. Option B In accordance with Section 7, E of the Original Agreement referenced above, the State hereby exercises its option to authorize the Local Agency to begin a phase that will include (describe which phase will be added and include all that apply – Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous) and to encumber previously budgeted funds for the phase based upon changes in funding availability and authorization. The encumbrance for (Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneou s)is (insert dollars here). A new Exhibit C-1 is made part of the original Agreement and replaces Exhibit C. (The following is a NOTE only, please delete when using this option. Future changes for this option for Exhibit C shall be labeled as follows: C-2, C-3, C-4, etc.). Option C In accordance with Section 7, E of the Original Agreement referenced above, the State hereby exercises its option to Exhibit B - Page 1 of 2 128 Exhibit B - Page 2 of 2 authorize the Local Agency to transfer funds from (describe phase from which funds will be moved) to (describe phase to which funds will be moved) based on variance in actual phase costs and original phase estimates. A new Exhibit C- 1 is made part of the original Agreement and replaces Exhibit C. Option D In accordance with Section 7, E of the Original Agreement referenced above, the State hereby exercises its option to authorize the Local Agency to begin a phase that will include (describe which phase will be added and include all that apply – Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous); 2) to encumber funds for the phase based upon changes in funding availability and authorization; and 3) to transfer funds from (describe phase from which funds will be moved) to (describe phase to which funds will be moved) based on variance in actual phase costs and original phase estimates. A new Exhibit C-1 is made part of the original Agreement and replaces Exhibit C. (The following language must be included on ALL options): The Agreement Maximum Amount table on the Contract’s Signature and Cover Page is hereby deleted and replaced with the Current Agreement Maximum Amount table shown above. Option E In accordance with Section 7, E of the Original Agreement referenced above, the State hereby exercises its option to authorize the Local Agency to update a Phase Performance Period and/or Modify OMB Uniform Guidance Information. A new Exhibit C-1 is made part of the original Agreement and replaces Exhibit C. 3. OPTION EFFECTIVE DATE: The effective date of this option letter is upon approval of the State Controller or delegate. APPROVALS: State of Colorado: Jared S. Polis, Governor By: _____________________________________________ Date: __________________ Executive Director, Colorado Department of Transportation ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER CRS §24-30-202 requires the State Controller to approve all State Contracts. This Agreement is not valid until signed and dated below by the State Controller or delegate. Contractor is not authorized to begin performance until such time. If the Local Agency begins performing prior thereto, the State of Colorado is not obligated to pay the Local Agency for such performance or for any goods and/or services provided hereunder. State Controller Robert Jaros, CPA, MBA, JD By: __________________________________ Date: ________________________________ 129 Exhibit C - Page 1 of 2 EXHIBIT C– FUNDING PROVISIONS AQC M405-024 (23040) A.Cost of Work Estimate The Local Agency has estimated the total cost the Work to be $905,907.00, which is to be funded as follows: 1.BUDGETED FUNDS a.Federal Funds (82.79% of Participating Costs) $750,000.00 b.Local Agency Matching Funds (17.21% of Participating Costs) $155,907.00 TOTAL BUDGETED FUNDS $905,907.00 2.OMB UNIFORM GUIDANCE a.Federal Award Identification Number (FAIN):TBD b.Federal Award Date (also Phase Performance Start Date):See Below c.Amount of Federal Funds Obligated:$0.00 d.Total Amount of Federal Award:$750,000.00 e.Name of Federal Awarding Agency:FHWA f.CFDA# - Highway Planning and Construction CFDA 20.205 g.Is the Award for R&D?No h.Indirect Cost Rate (if applicable)N/A 3.ESTIMATED PAYMENT TO LOCAL AGENCY a.Federal Funds Budgeted $750,000.00 b.Less Estimated Federal Share of CDOT-Incurred Costs $0.00 TOTAL ESTIMATED PAYMENT TO LOCAL AGENCY $750,000.00 4.FOR CDOT ENCUMBRANCE PURPOSES a.Total Encumbrance Amount $905,907.00 b.Less ROW Acquisition 3111 and/or ROW Relocation 3109 $0.00 Net to be encumbered as follows: $905,907.00 Note: No funds are currently available. Construction funds will become available after Federal Authorization and execution of an Option letter (Exhibit B) or formal Amendment. WBS Element 23040.20.10 Performance Period Start*/End Date TBD / TBD Constr. 3301 $0.00 *The Local Agency should not begin work until all three of the following are in place: 1) Phase Performance Period Start Date; 2) The execution of the document encumbering funds for the respective phase; and 3) Local Agency receipt of the official Notice to Proceed. Any work performed before these three milestones are achieved will not be reimbursable. 130 Exhibit C - Page 2 of 2 B.Matching Funds The matching ratio for the federal participating funds for this Work is 82.79% federal-aid funds to 17.21% Local Agency funds, it being understood that such ratio applies only to the $905,907.00 that is eligible for federal participation, it being further understood that all non-participating costs are borne by the Local Agency at 100%. If the total participating cost of performance of the Work exceeds $905,907.00, and additional federal funds are made available for the Work, the Local Agency shall pay 17.21% of all such costs eligible for federal participation and 100% of all non-participating costs; if additional federal funds are not made available, the Local Agency shall pay all such excess costs. If the total participating cost of performance of the Work is less than $905,907.00, then the amounts of Local Agency and federal-aid funds will be decreased in accordance with the funding ratio described herein. The performance of the Work shall be at no cost to the State. C.Maximum Amount Payable The maximum amount payable to the Local Agency under this Agreement shall be $750,000.00 (for CDOT accounting purposes, the federal funds of $750,000.00 and the Local Agency matching funds of $155,907.00 will be encumbered for a total encumbrance of $905,907.00), unless such amount is increased by an appropriate written modification to this Agreement executed before any increased cost is incurred. It is understood and agreed by the parties hereto that the total cost of the Work stated hereinbefore is the best estimate available, based on the design data as approved at the time of execution of this Agreement, and that such cost is subject to revisions (in accord with the procedure in the previous sentence) agreeable to the parties prior to bid and award. The maximum amount payable shall be reduced without amendment when the actual amount of the Local Agency’s awarded contract is less than the budgeted total of the federal participating funds and the Local Agency matching funds. The maximum amount payable shall be reduced through the execution of an Option Letter as described in Section 7. A. of this contract. D.Single Audit Act Amendment All state and local government and non-profit organizations receiving more than $750,000 from all funding sources defined as federal financial assistance for Single Audit Act Amendment purposes shall comply with the audit requirements of 2 CFR part 200, subpart F (Audit Requirements) see also, 49 C.F.R. 18.20 through 18.26. The Single Audit Act Amendment requirements applicable to the Local Agency receiving federal funds are as follows: i.Expenditure less than $750,000 If the Local Agency expends less than $750,000 in Federal funds (all federal sources, not just Highway funds) in its fiscal year then this requirement does not apply. ii.Expenditure of $750,000 or more-Highway Funds Only If the Local Agency expends $750,000 or more, in Federal funds, but only received federal Highway funds (Catalog of Federal Domestic Assistance, CFDA 20.205) then a program specific audit shall be performed. This audit will examine the “financial” procedures and processes for this program area. iii.Expenditure of $750,000 or more-Multiple Funding Sources If the Local Agency expends $750,000 or more in Federal funds, and the Federal funds are from multiple sources (FTA, HUD, NPS, etc.) then the Single Audit Act applies, which is an audit on the entire organization/entity. iv.Independent CPA Single Audit shall only be conducted by an independent CPA, not by an auditor on staff. An audit is an allowable direct or indirect cost. 131 Exhibit D – Page 1 of 1 EXHIBIT D, LOCAL AGENCY RESOLUTION NOT APPLICABLE 132 CDOT Form 1243 09/06 Page 1 of 4 Previous editions are obsolete and may not be used COLORADO DEPARTMENT OF TRANSPORTATION LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST Project No. AQC M405-024 STIP No. SR47001 Project Code 23040 Region 04 Project Location Estes Park Date 6/27/2019 Project Description Community Drive Intersection Local Agency Town of Estes Park Local Agency Project Manager David Hook CDOT Resident Engineer Katrina Kloberdanz CDOT Project Manager Jake Schuch INSTRUCTIONS: This checklist shall be utilized to establish the contract administration responsibilities of the individual parties to this agreement. The checklist becomes an attachment to the Local Agency agreement. Section numbers correspond to the applicable chapt ers of the CDOT Local Agency Manual. The checklist shall be prepared by placing an "X" under the responsible party, opposite each of the tasks. The “X” denotes th e party responsible for initiating and executing the task. When neither CDOT nor the Local Ag ency is responsible for a task, not applicable (NA) shall be noted. In addition, a “#” will denote that CDOT must concur or approve. Tasks that will be performed by Headquarters staff will be indicated. The Regions, in accordance with established policies and procedures, will determine who will perform all other tasks that are the responsibility of CDOT. The checklist shall be prepared by the CDOT Resident Engineer or the CDOT Project Manager, in cooperation with the Local Agency Project Manager, and submitted to the Region Program Engineer. If contract administration responsibilities change, the CDOT Resident Engineer, in cooperation with the Local Agency Project Manager, will prepare and distribute a revised checklist . NO. DESCRIPTION OF TASK RESPONSIBLE PARTY LA CDOT TIP / STIP AND LONG-RANGE PLANS 2-1 Review Project to ensure consistency with STIP and amendments thereto X FEDERAL FUNDING OBLIGATION AND AUTHORIZATION 4-1 Authorize funding by phases (CDOT Form 418 - Federal-aid Program Data. Requires FHWA concurrence/involvement) X PROJECT DEVELOPMENT 5-1 Prepare Design Data - CDOT Form 463 X 5-2 Prepare Local Agency/CDOT Inter-Governmental Agreement (see also Chapter 3) X 5-3 Conduct Consultant Selection/Execute Consultant Agreement X 5-4 Conduct Design Scoping Review meeting X X 5-5 Conduct Public Involvement X 5-6 Conduct Field Inspection Review (FIR) X 5-7 Conduct Environmental Processes (may require FHWA concurrence/involvement) X 5-8 Acquire Right-of-Way (may require FHWA concurrence/involvement) X # 5-9 Obtain Utility and Railroad Agreements X 5-10 Conduct Final Office Review (FOR) X 5-11 Justify Force Account W ork by the Local Agency – CDOT Form 895 X # 5-12 Justify Proprietary, Sole Source, or Local Agency Furnished items - CDOT Form 1381 X # 5-13 Document Design Exceptions - CDOT Form 464 X # 5-14 Prepare Plans, Specifications and Construction Cost Estimates X # 5-15 Ensure Authorization of Funds for Construction – CDOT Form 1180 X 133 CDOT Form 1243 09/06 Page 2 of 4 Previous editions are obsolete and may not be used NO. DESCRIPTION OF TASK RESPONSIBLE PARTY LA CDOT PROJECT DEVELOPMENT CIVIL RIGHTS AND LABOR COMPLIANCE 6-1 Set Disadvantaged Business Enterprise (DBE) Goals for Consultant and Construction Contracts (CDOT Region EEO/Civil Rights Specialist) X 6-2 Determine Applicability of Davis-Bacon Act This project is is not exempt from Davis-Bacon requirements as determined by the functional classification of the project location (Projects located on local roads and rural minor collectors may be exempt.) Katrina Kloberdanz________ 6/27/2019 CDOT Resident Engineer(Signature on File) Date X 6-3 Set On-the-Job Training Goals. X 6-4 Title VI Assurances X Ensure the correct Federal Wage Decision, all required Disadvantaged Business Enterprise/On-the-Job Training special provisions and FHWA Form 1273 are included in the Contract (CDOT Resident Engineer) X ADVERTISE, BID AND AWARD 7-1 Obtain Approval for Advertisement Period of Less Than Three Weeks X # 7-2 Advertise for Bids X 7-3 Distribute “Advertisement Set” of Plans and Specifications X 7-4 Review W orksite and Plan Details with Prospective Bidders While Project is Under Advertisement X 7-5 Open Bids X 7-6 Process Bids for Compliance X Check CDOT Form 1415 - Certificate of Proposed DBE Participation when the low bidder meets DBE goals X Evaluate CDOT Form 1416 - DBE Good Faith Effort Documentation and determine if the Contractor has made a good faith effort when the low bidder does not meet DBE goals X Submit required documentation for CDOT award concurrence X 7-7 Concurrence from CDOT to Award X 7-8 Approve Rejection of Low Bidder X 7-9 Award Contract X # 7-10 Provide “Award” and “Record” Sets of Plans and Specifications X CONSTRUCTION MANAGEMENT 8-1 Issue Notice to Proceed to the Contractor X 8-2 Project Safety X 8-3 Conduct Conferences: Pre-construction Conference (Appendix B) X Presurvey Construction staking Monumentation X X Partnering (Optional) X Structural Concrete Pre-Pour (Agenda is in CDOT Construction Manual) X Concrete Pavement Pre-Paving (Agenda is in CDOT Construction Manual) X HMA Pre-Paving (Agenda is in CDOT Construction Manual) X 8-4 Develop and distribute Public Notice of Planned Construction to media and local residents X 8-5 Supervise Construction A Professional Engineer (PE) registered in Colorado, who will be “in responsible charge of construction supervision.” David Hook 970-577-3586 Local Agency Professional Engineer or Phone number CDOT Resident Engineer X 134 CDOT Form 1243 09/06 Page 3 of 4 Previous editions are obsolete and may not be used NO. DESCRIPTION OF TASK RESPONSIBLE PARTY LA CDOT Provide competent, experienced staff who will ensure the Contract work is constructed in accordance with the plans and specifications X Construction inspection and documentation X 8-6 Approve Shop Drawings X 8-7 Perform Traffic Control Inspections X # 8-8 Perform Construction Surveying X 8-9 Monument Right-of-Way X 8-10 Prepare and Approve Interim and Final Contractor Pay Estimates Provide the name and phone number of the person authorized for this task. David Hook 970-577-3586 Local Agency Representative Phone number X 8-11 Prepare and Approve Interim and Final Utility/Railroad Billings X 8-12 Prepare Local Agency Reimbursement Requests X 8-13 Prepare and Authorize Change Orders – CDOT Form 90 X # 8-14 Approve All Change Orders X 8-15 Monitor Project Financial Status X 8-16 Prepare and Submit Monthly Progress Reports X 8-17 Resolve Contractor Claims and Disputes X 8-18 Conduct Routine and Random Project Reviews Provide the name and phone number of the person responsible for this task. Katrina Kloberdanz 970-350-2211 CDOT Resident Engineer Phone number X MATERIALS 9-1 Discuss Materials at Preconstruction Meeting -Buy America documentation prior to installation of steel X 9-2 Complete CDOT Form 250 - Materials Documentation Record  Generate form, which includes determining the minimum number of required tests and applicable material submittals for all materials placed on the project  Update the form as work progresses  Complete and distribute form after work is completed X X X 9-3 Perform Project Acceptance Samples and Tests X 9-4 Perform Laboratory Verification Tests X 9-5 Accept Manufactured Products Inspection of structural components:  Fabrication of structural steel and pre-stressed concrete structural components  Bridge modular expansion devices (0” to 6” or greater)  Fabrication of bearing devices X X X X 9-6 Approve Sources of Materials X 9-7 Independent Assurance Testing (IAT), Local Agency Procedures CDOT Procedures  Generate IAT schedule – CDOT Form 379  Schedule and provide notification  Conduct IAT X X X 9-8 Approve Mix Designs  Concrete  Hot Mix Asphalt X X # # 9-9 Check Final Materials Documentation X 9-10 Complete and Distribute Final Materials Documentation X 135 CDOT Form 1243 09/06 Page 4 of 4 Previous editions are obsolete and may not be used CONSTRUCTION CIVIL RIGHTS AND LABOR COMPLIANCE 10-1 Fulfill Project Bulletin Board and Pre-construction Packet Requirements X 10-2 Process CDOT Form 205b - Sublet Permit Application Review and sign completed CDOT Form 205 for each subcontractor, and submit to EEO/Civil Rights Specialist X 10-3 Conduct Equal Employment Opportunity and Labor Compliance Verification Employee Interviews. Complete CDOT Form 280 X 10-4 Monitor Disadvantaged Business Enterprise Participation to Ensure Compliance with the “Commercially Useful Function” requirements – CDOT Form 1432 X 10-5 Conduct Interviews When Project Utilizes On-the-Job Trainees. Complete CDOT Form 200 - OJT Training Questionnaire X 10-6 Check Certified Payrolls (Contact the Region EEO/Civil Rights Specialists for training requirements.) X # 10-7 Submit FHWA Form 1391 - Highway Construction Contractor’s Annual EEO Report X FINALS 11-1 Conduct Final Project Inspection. Complete and submit CDOT Form 1212 - Final Acceptance Report (Resident Engineer with mandatory Local Agency participation.) X # 11-2 Write Final Project Acceptance Letter X 11-3 Advertise for Final Settlement X 11-4 Prepare and Distribute Final As-Constructed Plans X 11-5 Prepare EEO Certification X 11-6 Check Final Quantities, Plans and Pay Estimate; Check Project Documentation; and submit Final Certifications X 11-7 Check Material Documentation and Accept Final Material Certification (See Chapter 9) X 11-8 Obtain CDOT Form 1419 - Contractor DBE Payment Certification from the Contactor and submit to the Resident Engineer (Quarterly) X 11-9 Obtain FHWA Form 47 - Statement of Materials and Labor Used … from the Contractor NA 11-10 Process Final Payment X 11-11 Complete and Submit CDOT Form 950 - Project Closure X 11-12 Retain Project Records for Three Years from Date of Project Closure X X 11-13 Retain Final Version of Local Agency Contract Administration Checklist X X cc: CDOT Resident Engineer/Project Manager CDOT Region Program Engineer CDOT Region EEO/Civil Rights Specialist CDOT Region Materials Engineer CDOT Contracts and Market Analysis Branch Local Agency Project Manager 136 Exhibit F - Page 1 of 1 EXHIBIT F, CERTIFICATION FOR FEDERAL-AID CONTRACTS The Local Agency certifies, by signing this Agreement, to the best of its knowledge and belief, that: No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of a ny Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewa l, amendment, or modification of any Federal contract, Agreement, loan, or cooperative agreement. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer of Congress, or an employee of a Member of Congress in connection with this Federal contract, Agreement, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instr uctions. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. The prospective participant also agree by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such sub - recipients shall certify and disclose accordingly. 137 Exhibit G - Page 1 of 1 EXHIBIT G SECTION 1. Policy. It is the policy of the Colorado Department of Transportation (CDOT) that disadvantaged business enterprises shall have the maximum opportunity to participate in the performance of contracts financed in whole or in part with Federal funds under this agreement, pursuant to 49 CFR Part 26. Consequently, the 49 CFR Part IE DBE requirements the Colorado Department of Transportation DBE Program (or a Local Agency DBE Program approved in advance by the State) apply to this agreement. SECTION 2. DBE Obligation. The recipient or its the Local Agency agrees to ensure that disadvantaged business enterprises as determined by the Office of Certification at the Colorado Department of Regulatory Agencies have the maximum opportunity to participate in the performance of contracts and subcontracts financed in whole or in part with Federal funds provided under this agreement. In this regard, all participants or contractors shall take all necessary and reasonable steps in accordance with the CDOT DBE program (or a Local Agency DBE Program approved in advance by the State) to ensure that disadvantaged business enterprises have the maximum opportunity to compete for and perform contracts. Recipients and their contractors shall not discriminate on the basis of race, color, nat ional origin, or sex in the award and performance of CDOT assisted contracts. SECTION 3 DBE Program. The Local Agency (sub-recipient) shall be responsible for obtaining the Disadvantaged Business Enterprise Program of the Colorado Department of Transportation, 1988, as amended, and shall comply with the applicable provisions of the program. (If applicable). A copy of the DBE Program is available from and will be mailed to the Local Agency upon request: Civil Rights & Business Resource Center Colorado Department of Transportation 2829 W. Howard Place Denver, Colorado 80204 Phone: (303) 757-9234 REVISED 1/22/98 REQUIRED BY 49 CFR PART 138 Exhibit H - Page 1 of 2 EXHIBIT H, LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES Title 23 Code of Federal Regulations (CFR) 172 applies to a federally funded Local Agency project agreement administered by CDOT that involves professional consultant services. 23 CFR 172.1 states “The policies and procedures involve federally funded contracts for engineering and design related services for pro jects subject to the provisions of 23 U.S.C. 112(a) and are issued to ensure that a qualified consultant is obtained through an equitable selection process, that prescribed work is properly accomplished in a timely manner, and at fair and reasonable cost” and according to 23 CFR 172.5 “Price shall not be used as a factor in the analysis and selection phase.” Therefore, local agencies must comply with these CFR requirements when obtaining professional consultant services under a federally funded consultant contract administered by CDOT. CDOT has formulated its procedures in Procedural Directive (P.D.) 400.1 and the related operations guidebook titled "Obtaining Professional Consultant Services". This directive and guidebook incorporate requirements from both Federal and State regulations, i.e., 23 CFR 172 and CRS §24-30-1401 et seq. Copies of the directive and the guidebook may be obtained upon request from CDOT's Agreements and Consultant Management Unit. [Local agencies should have their own written procedures on file for each method of procurement that addresses the items in 23 CFR 172]. Because the procedures and laws described in the Procedural Directive and the guidebook are quite lengthy, the subsequent steps serve as a short-hand guide to CDOT procedures that a Local Agency must follow in obtaining professional consultant services. This guidance follows the format of 23 CFR 172. The steps are: 1.The contracting Local Agency shall document the need for obtaining professional services. 2.Prior to solicitation for consultant services, the contracting Local Agency shall develop a detailed scope of work and a list of evaluation factors and their relative importance. The evaluation factors are those identified in C.R.S. 24-30-1403. Also, a detailed cost estimate should be prepared for use during negotiations. 3.The contracting agency must advertise for contracts in conformity with the requirements of C.R.S. 24-30-1405. The public notice period, when such notice is required, is a minimum of 15 days prior to the selection of the three most qualified firms and the advertising should be done in one or more daily newspapers of general circulation. 4.The Local Agency shall not advertise any federal aid contract without prior review by the CDOT Regional Civil Rights Office (RCRO) to determine whether the contract shall be subject to a DBE contract goal. If the RCRO determines a goal is necessary, then the Local Agency shall include the goal and the applicable provisions within the advertisement. The Local Agency shall not award a contract to any Contractor or Consultant without the confirmation by the CDOT Civil Rights and Business Resource Center that the Contractor or Consultant has demonstrated good faith efforts. The Local Agency shall work with the CDOT RCRO to ensure compliance with the established terms during the performance of the contract. 5.The Local Agency shall require that all contractors pay subcontractors for satisfactory performance of work no later than 30 days after the receipt of payment for that work from the contractor. For construction projects, this time period shall be reduced to seven days in accordance with Colorado Revised Statute 24-91-103(2). If the Local Agency withholds retainage from contractors and/or allows contractors to withhold retainage from subcontractors, such retainage provisions must comply with 49 CFR 26.29. 6.Payments to all Subconsultants shall be made within thirty days of receipt of payment from [the Local Agency] or no later than ninety days from the date of the submission of a complete invoice from the Subconsultant, whichever occurs first. If the Consultant has good cause to dispute an amount invoiced by a Subconsultant, the Consultant shall notify [the Local Agency] no later than the required date for payment. Such notification shall include the amount disputed and justification for the withholding. The Consultant shall maintain records of payment that show amounts paid to all Subconsultants. Good cause does not include the Consultant’s failure to submit an invoice to the Local Agency or to deposit payments made. 7.The analysis and selection of the consultants shall be done in accordance with CRS §24-30-1403. This section of the regulation identifies the criteria to be used in the evaluation of CDOT pre-qualified prime consultants and their team. It also shows which criteria are used to short-list and to make a final selection. The short-list is based on the following evaluation factors: a. Qualifications, 139 Exhibit H - Page 2 of 2 b. Approach to the Work, c. Ability to furnish professional services. d. Anticipated design concepts, and e. Alternative methods of approach for furnishing the professional services. Evaluation factors for final selection are the consultant's: a. Abilities of their personnel, b. Past performance, c. Willingness to meet the time and budget requirement, d. Location, e. Current and projected work load, f. Volume of previously awarded contracts, and g. Involvement of minority consultants. 8.Once a consultant is selected, the Local Agency enters into negotiations with the consultant to obtain a fair and reasonable price for the anticipated work. Pre-negotiation audits are prepared for contracts expected to be greater than $50,000. Federal reimbursements for costs are limited to those costs allowable unde r the cost principles of 48 CFR 31. Fixed fees (profit) are determined with consideration given to size, complexity, duration, and degree of risk involved in the work. Profit is in the range of six to 15 percent of the total direct and indirect costs. 9.A qualified Local Agency employee shall be responsible and in charge of the Work to ensure that the work being pursued is complete, accurate, and consistent with the terms, conditions, and specifications of the contract. At the end of Work, the Local Agency prepares a performance evaluation (a CDOT form is available) on the consultant. CRS §§24-30-1401 THROUGH 24-30-1408, 23 CFR PART 172, AND P.D. 400.1, PROVIDE ADDITIONAL DETAILS FOR COMPLYING WITH THE PRECEEDING EIGHT (8) STEPS. 140 Exhibit I - Page 1 of 12 EXHIBIT I, FEDERAL-AID CONTRACT PROVISIONS FOR CONSTRUCTION CONTRACTS 141 Exhibit I - Page 2 of 12 142 Exhibit I - Page 3 of 12 143 Exhibit I - Page 4 of 12 144 Exhibit I - Page 5 of 12 145 Exhibit I - Page 6 of 12 146 Exhibit I - Page 7 of 12 147 Exhibit I - Page 8 of 12 148 Exhibit I - Page 9 of 12 149 Exhibit I - Page 10 of 12 150 Exhibit I - Page 11 of 12 151 Exhibit I - Page 12 of 12 152 Exhibit J - Page 1 of 11 EXHIBIT J, ADDITIONAL FEDERAL REQUIREMENTS Federal laws and regulations that may be applicable to the Work include: Executive Order 11246 Executive Order 11246 of September 24, 1965 entitled "Equal Employment Opportunity," as amended by Executive Order 11375 of October 13, 1967 and as supplemented in Department of Labor regulations (41 CFR Chapter 60) (All construction contracts awarded in excess of $10,000 by the Local Agencies and their contractors or the Local Agencies). Copeland "Anti-Kickback" Act The Copeland "Anti-Kickback" Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29 CFR Part 3) (All contracts and sub -Agreements for construction or repair). Davis-Bacon Act The Davis-Bacon Act (40 U.S.C. 276a to a-7) as supplemented by Department of Labor regulations (29 CFR Part 5) (Construction contracts in excess of $2,000 awarded by the Local Agencies and the Local Agencies when required by Federal Agreement program legislation. This act requires that all laborers and mechanics employed by contractors or sub-contractors to work on construction projects financed by federal assistance must be paid wages not less than those established for the locality of the project by the Secretary of Labor). Contract Work Hours and Safety Standards Act Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327 -330) as supplemented by Department of Labor regulations (29 CFR Part 5). (Construction contracts awa rded by the Local Agency’s in excess of $2,000, and in excess of $2,500 for other contracts which involve the employment of mechanics or laborers). Clean Air Act Standards, orders, or requirements issued under section 306 of the Clean Air Act (42 U.S.C. 1857(h), section 508 of the Clean Water Act (33 U.S.C. 1368). Executive Order 11738, and Environmental Protection Agency regulations (40 CFR Part 15) (contracts, subcontracts, and sub-Agreements of amounts in excess of $100,000). Energy Policy and Conservation Act Mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94 -163). OMB Circulars Office of Management and Budget Circulars A-87, A-21 or A-122, and A-102 or A-110, whichever is applicable. Hatch Act The Hatch Act (5 USC 1501-1508) and Public Law 95-454 Section 4728. These statutes state that federal funds cannot be used for partisan political purposes of any kind b y any person or organization involved in the administration of federally-assisted programs. Nondiscrimination The Local Agency shall not exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States on the ground of race, color national origin, sex, age or disability. Prior to the receipt of any Federal financial assistance from CDOT, the Local Agency shall execute the attached Standard DOT Title VI assurance. As appropriate, the Local Agency shall include Appendix A, B, or C to the Standard DOT Title VI assurance in any contract utilizing federal funds, land or other aid. The Local Agency shall also include the following in all contract advertisements: The [Local Agency], in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (79 Stat. 252, 42 US.C. §§ 2000d to 2000d-4) and the Regulations, hereby notifies all bidders that it will affirmatively ensure that any contract entered into pursuant to this advertisement, DBEs will be afforded full and fair opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, or national origin in consideration for any award. 153 Exhibit J - Page 2 of 11 ADA In any contract utilizing federal funds, land, or other federal aid, the Local Agency shall require the federal- aid recipient or contractor to provide a statement of written assurance that they will comply with Section 504 and not discriminate on the basis of disability. Uniform Relocation Assistance and Real Property Acquisition Policies Act The Uniform Relocation Assistance and Real Property Acquisition Policies Act, as amended (Public Law 91-646, as amended and Public Law 100-17, 101 Stat. 246-256). (If the contractor is acquiring real property and displacing households or businesses in the performance of the Agreement). Drug-Free Workplace Act The Drug-Free Workplace Act (Public Law 100-690 Title V, subtitle D, 41 USC 701 et seq.). Age Discrimination Act of 1975 The Age Discrimination Act of 1975, 42 U.S.C. Sections 6101 et. seq. and its implementing regulation, 45 C.F.R. Part 91; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, as amended, and implementing regulation 45 C.F.R. Part 84. 23 C.F.R. Part 172 23 C.F.R. Part 172, concerning "Administration of Engineering and Design Related Contracts". 23 C.F.R Part 633 23 C.F.R Part 633, concerning "Required Contract Provisions for Federal -Aid Construction Contracts". 23 C.F.R. Part 635 23 C.F.R. Part 635, concerning "Construction and Maintenance Provisions". Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973 Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973. The requirements for which are shown in the Nondiscrimination Provisions, which are attached hereto and made a part hereof. Nondiscrimination Provisions: In compliance with Title VI of the Civil Rights Act of 1964 and with Section 162(a) of the Federal Aid Highway Act of 1973, the Contractor, for itself, its assignees and successors in interest, agree as follows: v.Compliance with Regulations The Contractor will comply with the Regulations of the Department of Transportation relative to nondiscrimination in Federally assisted programs of the Department of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the "Regulations"), which are herein incorporated by reference and made a part of this Agreement. vi.Nondiscrimination The Contractor, with regard to the work performed by it after award and prior to completion of the contract work, will not discriminate on the ground of race, color, sex, mental or physical handicap or national origin in the selection and retention of Subcontractors, including procurement of materials and leases of equipment. The Contractor will not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix C of the Regulations. vii.Solicitations for Subcontracts, Including Procurement of Materials and Equipment In all solicitations either by competitive bidding or negotiation made by the Contractor for work to be performed under a subcontract, including procurement of materials or equip ment, each potential Subcontractor or supplier shall be notified by the Contractor of the Contractor's obligations under this Agreement and the Regulations relative to nondiscrimination on the ground of race, color, sex, mental or physical handicap or national origin. viii.Information and Reports The Contractor will provide all information and reports required by the Regulations, or orders and instructions issued pursuant thereto and will permit access to its books, records, accounts, other sources of information and its facilities as may be determined by the State or the FHWA to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of the Contractor is in the exclusive possession of another who fails or refuses to furnish this information, the Contractor shall so certify to the State, or the FHWA as appropriate and shall set forth what efforts have been made to obtain the information. 154 Exhibit J - Page 3 of 11 ix.Sanctions for Noncompliance In the event of the Contractor's noncompliance with the nondiscrimination provisions of this Agreement, the State shall impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: a. Withholding of payments to the Contractor under the contract until the Contractor complies, and/or b. Cancellation, termination or suspension of the contract, in whole or in part. Incorporation of Provisions §22 The Contractor will include the provisions of this Exhibit J in every subcontract, including procureme nt of materials and leases of equipment, unless exempt by the Regulations, orders, or instructions issued pursuant thereto. The Contractor will take such action with respect to any subcontract or procurement as the State or the FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance; provided, however, that, in the event the Contractor becomes involved in, or is threatened with, litigation with a Subcontractor or supplier as a result of such direction, the Contractor ma y request the State to enter into such litigation to protect the interest of the State and in addition, the Contractor may request the FHWA to enter into such litigation to protect the interests of the United States. THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK 155 Exhibit J - Page 4 of 11 Assurances for Local Agencies DOT Order No. 1050.2A The [Local Agency] (herein referred to as the "Recipient"), HEREBY AGREES THAT, as a condition to receiving any Federal financial assistance from the U.S. Department of Transportation (DOT), through the Colorado Department of Transportation and the Federal Highway Administration (FHWA), Federal Transit Administration (FTA), and Federal Aviation Administration (FAA), is subject to and will comply with the following: Statutory/Regulatory Authorities Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); 49 C.F.R. Part 21 (entitled Non-discrimination In Federally-Assisted Programs Of The Department Of Transportation-Effectuation Of Title VI Of The Civil Rights Act Of 1964); 28 C.F.R. section 50.3 (U.S. Department of Justice Guidelines for Enforcement of Title VI of the Civil Rights Act of 1964); The preceding statutory and regulatory cites hereinafter are referred to as the "Acts" and "Regulations," respectively. General Assurances In accordance with the Acts, the Regulations, and other pertinent directives, circulars, policy, memoranda, and/or guidance, the Recipient hereby gives assurance that it will promptly take any measures necessary to ensure that: "No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity, "for which the Recipient receives Federal financial assistance from DOT, including the FHWA, FTA, or FAA. The Civil Rights Restoration Act of 1987 clarified the original intent of Congress, with respect to Title VI and other Non-discrimination requirements (The Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973), by restoring the broad, institutional-wide scope and coverage of these non-discrimination statutes and requirements to include all programs and activities of the Recipient, so long as any portion of the program is Federally assisted. Specific Assurances More specifically, and without limiting the above general Assurance, the Recipient agrees with and gives the following Assurances with respect to its Federally assisted FHWA, FTA, and FAA assisted programs: 1.The Recipient agrees that each "activity," "facility," or "program," as defined in §§ 21.23(b) and 21.23(e) of 49 C.F.R. § 21 will be (with regard to an "activity") facilitated, or will be (with regard to a "facility") operated, or will be (with regard to a "program") conducted in compliance with all requirements imposed by , or pursuant to the Acts and the Regulations. 2.The Recipient will insert the following notification in all solicitations for bids, Requests For Proposals for work, or material subject to the Acts and the Regulations made in connection with all FHWA, FTA and FAA programs and, in adapted form, in all proposals for negotiated agreements regardless of funding source: 3."The [Local Agency] in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 US.C. §§ 2000d to 2000d-4) and the Regulations, hereby notifies all bidders that it will affirmatively ensure that any contract entered into pursuant to this advertisement, disadvantaged business enterprises will be afforded full and fair opportunity 156 Exhibit J - Page 5 of 11 4.to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, or national origin in consideration for an award." 5.The Recipient will insert the clauses of Appendix A and E of this Assurance in every contract or agreement subject to the Acts and the Regulations. 6.The Recipient will insert the clauses of Appendix B of this Assurance, as a covenant running with the land, in any deed from the United States effecting or recording a transfer of real property, structures, use, or improvements thereon or interest therein to a Recipient. 7.That where the Recipient receives Federal financial assistance to construct a facility, or part of a facility, the Assurance will extend to the entire facility and facilities operated in connection therewith. 8.That where the Recipient receives Federal financial assistance in the form, or for the acquisition of real property or an interest in real property, the Assurance will extend to rights to space on, over, or under such property. 9.That the Recipient will include the clauses set forth in Appendix C and Appendix D of this Assurance, as a covenant running with the land, in any future deeds, leases, licenses, permits, or similar instruments entered into by the Recipient with other parties: a.for the subsequent transfer of real property acquired or improved under the applicable activity, project, or program; and b.for the construction or use of, or access to, space on, over, or under real property acquired or improved under the applicable activity, project, or program. 10.That this Assurance obligates the Recipient for the period during which Federal financial assistance is extended to the program, except where the Federal financial assistance is to provide, or is in the form of, personal property, or real property, or inter est therein, or structures or improvements thereon, in which case the Assurance obligates the Recipient, or any transferee for the longer of the following periods: a.the period during which the property is used for a purpose for which the Federal financial assistance is extended, or for another purpose involving the provision of similar services or benefits; or b.the period during which the Recipient retains ownership or possession of the property. 11.The Recipient will provide for such methods of administration for the program as are found by the Secretary of Transportation or the official to whom he/she delegates specific authority to give reasonable guarantee that it, other recipients, sub-recipients, sub-grantees, contractors, subcontractors, consultants, transferees, successors in interest, and other participants of Federal financial assistance under such program will comply with all requirements imposed or pursuant to the Acts, the Regulations, and this Assurance. 12.The Recipient agrees that the United States has a right to seek judicial enforcement with regard to any matter arising under the Acts, the Regulations, and this Assurance. By signing this ASSURANCE, the [Local Agency] also agrees to comply (and require any sub-recipients, sub- grantees, contractors, successors, transferees, and/or assignees to comply) with all applicable provisions governing the FHWA, FTA, and FAA’s access to records, accounts, documents, information, facilities, and staff. You also recognize that you must comply with any program or compliance reviews, and/or complaint investigations conducted by CDOT, FHWA, FTA, or FAA. You must keep records, reports, and submit the material for review 157 Exhibit J - Page 6 of 11 upon request to CDOT, FHWA, FTA, or FAA, or its designee in a timely, complete, and accurate way. Additionally, you must comply with all other reporting, data collection, and evaluation requirements, as prescribed by law or detailed in program guidance. [Local Agency] gives this ASSURANCE in consideration of and for obtaining any Federal grants, loans , contracts, agreements, property, and/or discounts, or other Federal -aid and Federal financial assistance extended after the date hereof to the recipients by the U.S. Department of Transportation under the FHWA, FTA, and FAA. This ASSURANCE is binding on [Local Agency], other recipients, sub-recipients, sub-grantees, contractors, subcontractors and their subcontractors', transferees, successors in interest, and any other participants in the FHWA, FTA, and FAA funded programs. The person(s) signing below is authorized to sign this ASSURANCE on behalf of the Recipient. _____________________________________ (Name of Recipient) by ___________________________________ (Signature of Authorized Official) DATED________________________________ 158 Exhibit J - Page 7 of 11 APPENDIX A During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees as follows: 1.Compliance with Regulations: The contractor (hereinafter includes consultants) will comply with the Acts and the Regulations relative to Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation, FHWA, as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract. 2.Non-discrimination: The contractor, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR Part 21. 3.Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the contractor of the contractor's obligations under this contract and the Acts and the Regulations relative to Non-discrimination on the grounds of race, color, or national origin. 4.Information and Reports: The contractor will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, re cords, accounts, other sources of information, and its facilities as may be determined by the [Local Agency], CDOT or FHWA to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information, the contractor will so certify to the [Local Agency], CDOT or FHWA, as appropriate, and will set forth what efforts it has made to obtain the information. 5.Sanctions for Noncompliance: In the event of a contractor's noncompliance with the Non- discrimination provisions of this contract, the [Local Agency] will impose such contract sanctions as it, CDOT or FHWA may determine to be appropriate, including, but not limited to: a.withholding payments to the contractor under the contract until the contractor complies; and/or b.cancelling, terminating, or suspending a contract, in whole or in part. 6.Incorporation of Provisions: The contractor will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The contractor will take action with respect to any subcontract or procurement as the Recipient or the [Local Agency], CDOT or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the contractor becomes involved in, or is threatened with litigation by a subcontr actor, or supplier because of such direction, the contractor may request the Recipient to enter into any litigation to protect the interests of the Recipient. In addition, the contractor may request the United States to enter into the litigation to protect the interests of the United States. 159 Exhibit J - Page 8 of 11 APPENDIX B CLAUSES FOR DEEDS TRANSFERRING UNITED STATES PROPERTY The following clauses will be included in deeds effecting or recording the transfer of real property, structures, or improvements thereon, or granting interest therein from the United States pursuant to the provisions of Assurance 4: NOW, THEREFORE, the U.S. Department of Transportation as authorized by law and upon the condition that the [Local Agency] will accept title to the lands and maintain the project constructed thereon in accordance with (Name of Appropriate Legislative Authority), the Regulations for the Administration of (Name of Appropriate Program), and the policies and procedures prescribed by the FHWA of the U.S. Department of Transportation in accordance and in compliance with all requirements imposed by Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S Department of Transportation pertaining to and effectuating the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. § 2000d to 2000d -4), does hereby remise, release, quitclaim and convey unto the [Local Agency] all the right, title and interest of the U.S. Department of Transportation in and to said lands described in Exhibit A attached hereto and made a part hereof. (HABENDUM CLAUSE) TO HAVE AND TO HOLD said lands and interests therein unto [Local Agency] and its successors forever, subject, however, to the covenants, conditions, restrictions and reservations herein contained as follows, which will remain in effect for the period during which the real property or structures are used for a purpose for which Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits and will be binding on the [Local Agency] its successors and assigns. The [Local Agency], in consideration of the conveyance of said lands and interests in lands, does hereby covenant and agree as a covenant running with the land for itself, its successors and assigns, that (1) no person will on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination with regard to any facility located wholly or in part on, over, or under such lands hereby conveyed [,] [and]* (2) that the [Local Agency] will use the lands and interests in lands and interests in lands so conveyed, in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation, Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations and Acts may be amended [, and (3) that in the event of breach of any of the above -mentioned non- discrimination conditions, the Department will have a right to ent er or re-enter said lands and facilities on said land, and that above described land and facilities will thereon revert to and vest in and become the absolute property of the U.S. Department of Transportation and its assigns as such interest existed prior to this instruction].* (*Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to make clear the purpose of Title VI.) 160 Exhibit J - Page 9 of 11 APPENDIX C CLAUSES FOR TRANSFER OF REAL PROPERTY ACQUIRED OR IMPROVED UNDER THE ACTIVITY, FACILITY, OR PROGRAM The following clauses will be included in deeds, licenses, leases, permits, or similar instruments entered into by the [Local Agency] pursuant to the provisions of Assurance 7(a): A.The (grantee, lessee, permittee, etc. as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree [in the case of deeds and leases add "as a covenant running with the land"] that: 1.In the event facilities are constructed, maintained, or otherwise operated on the property described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S. Department of Transportation activity, facility, or program is extended or for another purpose involving the provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.) will maintain and operate such facilities and services in compliance with all requirements imposed by the Acts and Regulations (as may be amended) such that no person on the grounds of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities. B.With respect to licenses, leases, permits, etc., in the event of breach of any of the above Non -discrimination covenants, [Local Agency] will have the right to terminate the (lease, license, permit, etc.) and to enter, re -enter, and repossess said lands and facilities thereon, and hold the same as if the (lease, license, permit, etc.) had never been made or issued.* C.With respect to a deed, in the event of breach of any of the above Non -discrimination covenants, the [Local Agency] will have the right to enter or re-enter the lands and facilities thereon, and the above described lands and facilities will there upon revert to and vest in and become the absolute property of the [Local Agency] and its assigns.* (*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.) 161 Exhibit J - Page 10 of 11 APPENDIX D CLAUSES FOR CONSTRUCTION/USE/ACCESS TO REAL PROPERTY ACQUIRED UNDER THE ACTIVITY, FACILITY OR PROGRAM The following clauses will be included in deeds, licen ses, permits, or similar instruments/agreements entered into by [Local Agency] pursuant to the provisions of Assurance 7(b): A.The (grantee, licensee, permittee, etc., as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds and leases add, "as a covenant running with the land") that (1) no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under such land, and the furnishing of services thereon, no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, (3) that the (grantee, licensee, lessee, permittee, etc.) will use the premises in compliance with all other requirements imposed by or pursuant to the Acts and Regulations, as amended, set forth in this Assurance. B.With respect to (licenses, leases, permits, etc.), in the event of breach of any of the above Non- discrimination covenants, [Local Agency] will have the right to terminate the (license, permit, etc., as appropriate) and to enter or re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, permit, etc., as appropriate) had never been made or issued.* C.With respect to deeds, in the event of breach of any of the above Non -discrimination covenants, [Local Agency] will there upon revert to and vest in and become the absolute property of [Local Agency] of Transportation and its assigns.* (*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.) 162 Exhibit J - Page 11 of 11 APPENDIX E During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees to comply with the following non -discrimination statutes and authorities; including but not limited to: Pertinent Non-Discrimination Authorities: Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of sex); Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR Part 27; The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age); Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); The Civil Rights Restoration Act of 1987, (PL 100 -209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not); Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation regulations at 49 C.F.R. parts 37 and 38; The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low- Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of Limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq). 163 Exhibit K - Page 1 of 4 EXHIBIT K, FFATA SUPPLEMENTAL FEDERAL PROVISIONS State of Colorado Supplemental Provisions for Federally Funded Contracts, Grants, and Purchase Orders Subject to The Federal Funding Accountability and Transparency Act of 2006 (FFATA), As Amended Revised as of 3-20-13 The contract, grant, or purchase order to which these Supplemental 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 Supplemental Provisions, the Special Provisions, the contract or any attachments or exhibits incorporated into and made a part of the contract, the provisions of these Supplemental Provisions shall control. 1.Definitions. For the purposes of these Supplemental Provisions, the following terms shall have the meanings ascribed to them below. 1.1. “Award” means an award of Federal financial assistance that a non-Federal Entity receives or administers in the form of: 1.1.1. Grants; 1.1.2. Contracts; 1.1.3. Cooperative agreements, which do not include cooperative research and development agreements (CRDA) pursuant to the Federal Technology Transfer Act of 1986, as amended (15 U.S.C. 3710); 1.1.4. Loans; 1.1.5. Loan Guarantees; 1.1.6. Subsidies; 1.1.7. Insurance; 1.1.8. Food commodities; 1.1.9. Direct appropriations; 1.1.10. Assessed and voluntary contributions; and 1.1.11. Other financial assistance transactions that authorize the expenditure of Federal funds by non- Federal Entities. Award does not include: 1.1.12. Technical assistance, which provides services in lieu of money; 1.1.13. A transfer of title to Federally-owned property provided in lieu of money; even if the award is called a grant; 1.1.14. Any award classified for security purposes; or 1.1.15. Any award funded in whole or in part with Recovery funds, as defined in section 1512 of the American Recovery and Reinvestment Act (ARRA) of 2009 (Public Law 111-5). 1.2. “Contract” means the contract to which these Supplemental Provisions are attached and includes all Award types in §1.1.1 through 1.1.11 above. 1.3. “Contractor” means the party or parties to a Contract funded, in whole or in part, with Federal financial assistance, other than the Prime Recipient, and includes grantees, subgrantees, Subrecipients, and borrowers. For purposes of Transparency Act reporting, Contractor does not in clude Vendors. 1.4. “Data Universal Numbering System (DUNS) Number” means the nine-digit number established and assigned by Dun and Bradstreet, Inc. to uniquely identify a business entity. Dun and Bradstreet’s website may be found at: http://fedgov.dnb.com/webform. 1.5. “Entity” means all of the following as defined at 2 CFR part 25, subpart C; 1.5.1. A governmental organization, which is a State, local government, or Indian Tribe; 1.5.2. A foreign public entity; 1.5.3. A domestic or foreign non-profit organization; 164 Exhibit K - Page 2 of 4 1.5.4. A domestic or foreign for-profit organization; and 1.5.5. A Federal agency, but only a Subrecipient under an Award or Subaward to a non -Federal entity. 1.6. “Executive” means an officer, managing partner or any other employee in a managemen t position. 1.7. “Federal Award Identification Number (FAIN)” means an Award number assigned by a Federal agency to a Prime Recipient. 1.8. “FFATA” means the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109 - 282), as amended by §6202 of Pub lic Law 110-252. FFATA, as amended, also is referred to as the “Transparency Act.” 1.9. “Prime Recipient” means a Colorado State agency or institution of higher education that receives an Award. 1.10. “Subaward” means a legal instrument pursuant to which a Prime Recipient of Award funds awards all or a portion of such funds to a Subrecipient, in exchange for the Subrecipient’s support in the performance of all or any portion of the substantive project or program for which the Award was granted. 1.11. “Subrecipient” 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 Subreci pient is subject to the terms and conditions of the Federal Award to the Prime Recipient, including program compliance requirements. The term “Subrecipient” includes and may be referred to as Subgrantee. 1.12. “Subrecipient Parent DUNS Number” means the subrecipient parent organization’s 9-digit Data Universal Numbering System (DUNS) number that appears in the subrecipient’s System for Award Management (SAM) profile, if applicable. 1.13. “Supplemental Provisions” means these Supplemental Provisions for Federally Funded Contracts, Grants, and Purchase Orders subject to the Federal Funding Accountability and Transparency Act of 2006, As Amended, as may be revised pursuant to ongoing guidance from the relevant Federal or State of Colorado agency or institution of higher education. 1.14. “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. 1.15. “Total Compensation” means the cash and noncash dollar value earned by an Executive during the Prime Recipient’s or Subrecipient’s preceding fiscal year and includes the following: 1.15.1. Salary and bonus; 1.15.2. Awards of stock, stock options, and stock appreciation rights, using the dollar amount recognized for financial statement reporting purposes with respect to the fiscal year in accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2005) (FAS 123R), Shared Based Payments; 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; 1.15.4. Change in present value of defined benefit and actuarial pension plans; 1.15.5. Above-market earnings on deferred compensation which is not tax-qualified; 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. 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. The Transparency Act also is referred to as FFATA. 1.17 “Vendor” means a dealer, distributor, merchant or other seller providing property or services required for a project or program funded by an Award. A Vendor is not a Prime Recipient or a Subrecipient and is not subject to the terms and conditions of the Federal award. Program compliance requirements do not pass through to a Vendor. 165 Exhibit K - Page 3 of 4 2.Compliance. Contractor shall comply with all applicable provisions of the Transparency Act and the regulations issued pursuant thereto, including but not limited to these Supplemental Provisions. Any revisions to such provisions or regulations shall automatically become a part of these Supplemental Provisions, without the necessity of either party executing any further instrument. The State of Colorado may provide written notification to Contractor of such revisions, but such notice shall not be a condition precedent to the effectiveness of such revisions. 3.System for Award Management (SAM) and Data Universal Numbering System (DUNS) Requirements. 3.1. SAM. Contractor shall maintain the currency of its information in SAM until the Contractor submits the final financial report required under the Award or receives final payment, whichever is later. Contractor shall review and update SAM information at least annually after the initial registration, and more frequently if required by changes in its information. 3.2. DUNS. Contractor shall provide its DUNS number to its Prime Recipient, and shall update Contractor’s information in Dun & Bradstreet, Inc. at least annually after the initial registration , and more frequently if required by changes in Contractor’s information. 4.Total Compensation. Contractor shall include Total Compensation in SAM for each of its five most highly compensated Executives for the preceding fiscal year if: 4.1. The total Federal funding authorized to date under the Award is $25,000 or more; and 4.2. In the preceding fiscal year, Contractor received: 4.2.1. 80% or more of its annual gross revenues from Federal procurement contracts and subcontracts and/or Federal financial assistance Awards or Subawards subject to the Transparency Act; and 4.2.2. $25,000,000 or more in annual gross revenues from Federal procurement contracts and subcontracts and/or Federal financial assistance Awards or Subawards subject to the Transparency Act; and 4.3. 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. 5.Reporting. Contractor shall report data elements to SAM and to the Prime Recipient as required in §7 below if Contractor is a Subrecipient for the Award pursuant to the Transparency Act. No direct payment shall be made to Contractor for providing any reports required under these Supplemental Provisions and the cost of producing such reports shall be included in the Contract price. The reporting requirements in §7 below are based on guidance from the US Office of Management and Budget (OMB), and as such are subject to change at any time by OMB. Any such changes shall be automatically incorporated into this Contract and shall become part of Contractor’s obligations under this Contract, as provided in §2 above. The Colorado Office of the State Controller will provide summaries of revised OMB reporting requirements at http://www.colorado.gov/dpa/dfp/sco/FFATA.htm. 6.Effective Date and Dollar Threshold for Reporting. The effective date of these Supplemental Provisions apply to new Awards as of October 1, 2010. Reporting requirements in §7 below apply to new Awards as of October 1, 2010, if the initial award is $25,000 or more. If the initial Award is below $25,000 but subsequent Award modifications result in a total Award of $25,000 or more, the Award is subject to the repor ting requirements as of the date the Award exceeds $25,000. If the initial Award is $25,000 or more, but funding is subsequently de - obligated such that the total award amount falls below $25,000, the Award shall continue to be subject to the reporting requirements. 7.Subrecipient Reporting Requirements. If Contractor is a Subrecipient, Contractor shall report as set forth below. 7.1 ToSAM. A Subrecipient shall register in SAM and report the following data elements in SAM for each Federal Award Identification Number no later than the end of the month following the month in which the Subaward was made: 166 Exhibit K - Page 4 of 4 7.1.1 Subrecipient DUNS Number; 7.1.2 Subrecipient DUNS Number + 4 if more than one electronic funds transfer (EFT) account; 7.1.3 Subrecipient Parent DUNS Number; 7.1.4 Subrecipient’s address, including: Street Address, City, State, Country, Zip + 4, and Congressional District; 7.1.5 Subrecipient’s top 5 most highly compensated Executives if the criteria in §4 above are met; and 7.1.6 Subrecipient’s Total Compensation of top 5 most highly compensated Executives if criteria in §4 above met. 7.2 To Prime Recipient. A Subrecipient shall report to its Prime Recipient, upon the effective date of the Contract, the following data elements: 7.2.1 Subrecipient’s DUNS Number as registered in SAM. 7.2.2 Primary Place of Performance Information, including: Street Address, City, State, Country, Zip code + 4, and Congressional District. 8. Exemptions. 8.1. These Supplemental 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. 8.2 A Contractor with gross income from all sources of less than $300,000 in the previous tax year is exempt from the requirements to report Subawards and the Total Compensation of its most highly compensated Executives. 8.3 Effective October 1, 2010, “Award” currently means a grant, cooperative agreement, or other arrangement as defined in Section 1.1 of these Special Provisions. On future dates “Award” may include other items to be specified by OMB in policy memoranda available at the OMB Web site; Award also will include other types of Awards subject to the Transparency Act. 8.4 There are no Transparency Act reporting requirements for Vendors. Event of Default. Failure to comply with these Supplemental Provisions shall constitute an event of default under the Contract and the State of Colorado may terminate the Contract upon 30 days prior written notice if t he default remains uncured five calendar days following the termination of the 30 day notice period. This remedy will be in addition to any other remedy available to the State of Colorado under the Contract, at law or in equity. 167 Exhibit L - Page 1 of 3 EXHIBIT L, SAMPLE SUBRECIPIENT MONITORING AND RISK ASSESSMENT 168 Exhibit L - Page 2 of 3 169 Exhibit L - Page 3 of 3 170 Exhibit M - Page 1 of 5 EXHIBIT M, OMB Uniform Guidance for Federal Awards Subject to The Office of Management and Budget Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (“Uniform Guidance”), Federal Register, Vol. 78, No. 248, 78590 The agreement to which these Uniform Guidance Supplemental 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 th ese Supplemental Provisions, the Special Provisions, the agreement or any attachments or exhibits incorporated into and made a part of the agreement, the provisions of these Uniform Guidance Supplemental Provisions shall control. In the event of a conflict between the provisions of these Supplemental Provisions and the FFATA Supplemental Provisions, the FFATA Supplemental Provisions shall control. 9. Definitions. For the purposes of these Supplemental Provisions, the following terms shall have the meanings ascribed to them below. 9.1. “Award” means an award by a Recipient to a Subrecipient funded in whole or in part by a Federal Award. The terms and conditions of the Federal Award flow down to the Award unless the terms and conditions of the Federal Award specifically indicate otherwise. 2 CFR §200.38 9.2. “Federal Award” means an award of Federal financial assistance or a cost-reimbursement contract under the Federal Acquisition Requirements by a Federal Awarding Agency to a 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 contractor or payments to an individual that is a beneficiary of a Federal program. 9.3. “Federal Awarding Agency” means a Federal agency providing a Federal Award to a Recipient. 2 CFR §200.37 9.4. “FFATA” means the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109 - 282), as amended by §6202 of Public Law 110 -252. 9.5. “Grant” or “Grant Agreement” means an agreement setting forth the terms and conditions of an Award. The term does not include an agreement that provides only direct Federal cash assistance to an individual, a subsidy, a loan, a loan guarantee, insurance, or acquires property or services for the direct benefit of use of the Federal Awarding Agency or Recipient. 2 CFR §200.51. 9.6. “OMB” means the Executive Office of the President, Office of Management and Budget. 9.7. “Recipient” means a Colorado State department, agency or institution of higher education that receives a Federal Award from a Federal Awarding Agency to carry out an activity under a Federal program. The term does not include Subrecipients. 2 CFR §200.86 9.8. “State” means the State of Colorado, acting by and through its departments, agencies and institutions of higher education. 9.9. “Subrecipient” means a non-Federal entity receiving an Award from a Recipient to carry out part of a Federal program. The term does not include an individual who is a beneficiary of such program. 9.10. “Uniform Guidance” means the Office of Management and Budget Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, which supersedes requirements from OMB Circulars A-21, A-87, A-110, and A-122, OMB Circulars A-89, A-102, and A- 133, and the guidance in Circular A-50 on Single Audit Act follow-up. The terms and conditions of the Uniform Guidance flow down to Awards to Subrecipients unless the Uniform Guidance or the terms and conditions of the Federal Award specifically indicate otherwise. 9.11. “Uniform Guidance Supplemental Provisions” means these Supplemental Provisions for Federal Awards subject to the OMB Uniform Guidance, as may be revised pursuant to ongoing guidance from relevant Federal agencies or the Colorado State Controller. 10. Compliance. Subrecipient shall comply with all applicable provisions of the Uniform Guidance, including but not limited to these Uniform Guidance Supplemental Provisions. Any revisions to such provisions automatically shall become a part of these Supplemental Provisions, without the neces sity of either party executing any further 171 Exhibit M - Page 2 of 5 instrument. The State of Colorado may provide written notification to Subrecipient of such revisions, but such notice shall not be a condition precedent to the effectiveness of such revisions. 11. Procurement Standards. 3.1 Procurement Procedures. Subrecipient shall use its own documented procurement procedures which reflect applicable State, local, and Tribal laws and regulations, provided that the procurements conform to applicable Federal law and the standards identified in the Uniform Guidance, including without limitation, §§200.318 through 200.326 thereof. 3.2 Procurement of Recovered Materials. If Subrecipient is a State Agency or an agency of a political subdivision of a 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. 4. Access to Records. Subrecipient shall permit Recipient and auditors to have access to Subrecipient’s records and financial statements as necessary for Recipient to meet the requirements of §200.331 (Requirements for pass - through entities), §§200.300 (Statutor y and national policy requirements) through 200.309 (Period of performance), and Subpart F-Audit Requirements of the Uniform Guidance. 2 CFR §200.331(a)(5). 5. Single Audit Requirements. If Subrecipient expends $750,000 or more in Federal Awards during S ubrecipient’s fiscal year, 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. 5.1 Election. Subrecipient shall have a single audit conducted in accordance with Uniform Guidance §200.514 (Scope of audit), except when it elects to have a program-specific audit conducted in accordance with §200.507 (Program-specific audits). 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 Recipient. A program-specific audit may not be elected for research and development unless all of the Federal Awards expended were received from Reci pient and Recipient approves in advance a program-specific audit. 5.2 Exemption. If Subrecipient expends less than $750,000 in Federal Awards during its fiscal year, Subrecipient shall be exempt from Federal audit requirements for that year, except as not ed 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. 5.3 Subrecipient Compliance Responsibility. Subrecipient shall procure or otherwise arrange for the audit required by Part F of the Uniform Guidance and ensure it is properly performed and submitted when due in accordance with the Uniform Guidance. Subrecipient shall prepare appropriate financial statements, including the schedule of expenditures of Federal awards in accordance with Uniform Guidance §200.510 (Financial statements) and provide the auditor with access to personnel, accounts, books, records, supporting documentation, and other information as needed for the auditor to perform the audit required by Uniform Guidance Part F-Audit Requirements. 6. Contract Provisions for Subrecipient Contracts. Subrecipient shall comply with and shall include all of the following applicable provisions in all subcontracts entered into by it pursuant to this Grant Agreement. 6.1 Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of “federally assisted construction contract” in 41 CFR Part 60-1.3 shall include the equal opportunity clause provided under 41 CFR 60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 CFR Part, 1964 -1965 Comp., p. 339), as 172 Exhibit M - Page 3 of 5 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 Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.” “During the performance of this contract, the contractor agrees as follows: (1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause. (2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. (3) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under section 202 of Executive Order 11246 of September 24, 1965, and shal l post copies of the notice in conspicuous places available to employees and applicants for employment. (4) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (5) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. (6) In the event of the contractor's non-compliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be canceled, terminated or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (7) The contractor will include the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States.” 4.2 Davis-Bacon Act. Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non-Federal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisi ons Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage deter mination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non -Federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each sol icitation. 173 Exhibit M - Page 4 of 5 The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-Federal entity must report all suspected or reported violations to the Federal awarding agency. The contracts must also include a provision for compliance with the Copeland “Anti- Kickback” Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or Subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non- Federal entity must report all suspected or reported violations to the Federal awarding agency. 4.3 Rights to Inventions Made Under a Contract or Agreement. If the Federal Award meets the definition of “funding agreement” under 37 CFR §401.2 (a) and Subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” Subrecipient must comply with the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency. 4.4 Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251 - 1387), as amended. Contracts and subgrants of amounts in excess of $150,000 must contain a p rovision that requires the non-Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). 4.5 Debarment and Suspension (Executive Orders 12549 and 12689). A contract award (see 2 CFR 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), “Debar ment 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. 4.6 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 org anization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non-Federal award. 7. Certifications. Unless prohibited by Federal statutes or regulations, Recipient may require Subrecipient to submit certifications and representations required by Federal statutes or regulations on an annual basis. 2 CFR §200.208. Submission may be required more frequently if Subrecipient fails to meet a requirement of the Federal award. Subrecipient shall certify in writing to the State at the end of the Award that the project or activity was completed or the level of effort was expended. 2 CFR §200.201(3). If the required level of activity or effort was not carried out, the amount of the Award must be adjusted. 2. 8. Event of Default. Failure to comply with these Uniform Guidance Supplemental Provisions shall constitute an event of default under the Grant Agreement (2 CFR §200.339) and the State 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 availab le to the State of Colorado under the Grant, at law or in equity. 9. Effective Date. The effective date of the Uniform Guidance is December 26, 2013. 2 CFR §200.110. The procurement standards set forth in Uniform Guidance §§200.317 -200.326 are applicable to new Awards made by 174 Exhibit M - Page 5 of 5 Recipient as of December 26, 2015. The standards set forth in Uniform Guidance Subpart F-Audit Requirements are applicable to audits of fiscal years beginning on or after December 26, 2014. 10. Performance Measurement The Uniform Guidance requires completion of OMB-approved standard information collection forms (the PPR). The form focuses on outcomes, as related to the Federal Award Performance Goals that awarding Federal agencies are required to detail in the Awards. Section 200.301 provides guidance to Federal agencies to measure performance in a way that will help the Federal awarding agency and other non-Federal entities to improve program outcomes. The Federal awarding agency is required to provide recipients with clear pe rformance goals, indicators, and milestones (200.210). Also, must require the recipient to relate financial data to performance accomplishments of the Federal award. 175       176 Town of Estes Park, Larimer County, Colorado, August 15, 2019 Minutes of a regular meeting of the Parks Advisory Board of the Town of Estes Park, Larimer County, Colorado. Meeting held in the Museum Conference Room of the Estes Park Museum on the 15th day of August, 2019. Present Merle Moore Vicki Papineau Ron Wilcocks Rex Poggenpohl Wade Johnston Also Megan Van Hoozer, Public Works Administrative Assistant Present: Patrick Martchink, Town Board Liaison Absent: Dewain Lockwood Geoffrey Elliot Brian Berg, Parks Supervisor Chair Merle Moore called the meeting to order at 8:34 a.m. PUBLIC COMMENT Estes Arts District – Greg Miles and Wade Johnston reported that the recently held EAD events (Snowy Grass, Friends of Folks, First Friday Art Groove) were very successful. The EAD will be expanding the board, their collaboration and relationship-building with the Town’s PAB. The EAD now offers scholarships for artists to expand to business teachings. The EAD will work as a jurying committee for artwork which will have parameters outlined by PAB as the EAD has experience in performing these functions. Chair Moore welcomes a more formal cooperative, working relationship. Areas of the existing Art In Public Places (AIPP) Guidelines will need additional expertise regarding art maintenance plans. Miles can provide that type of information. Member Poggenpohl would assist in having this process in place for potential grants and an eventual master plan. Member Wilcocks stated that he is also hoping for some joint grant opportunities for different art pieces in the area. Wilcocks will present this idea to the EAD at the next board meeting. Chair Moore requested the EAD review the Town’s AIPP Guidelines. GENERAL BUSINESS A motion was made and seconded (Poggenpohl/Papineau) to approve the July meeting minutes and all were in favor. ESTES PARK NOXIOUS WEED ORDINANCE - ADVISORY Member Papineau gave a summary of the meeting with the mayor regarding the ordinance for noxious weeds. The mayor will send the proposed ordinance to Town Attorney Kramer for review and comment. Trustee Liaison Martchink was unaware of how far along in the process the ordinance was but will check with Attorney Kramer to determine if it is available for review. PAB is not satisfied with the current ordinance. 35 177 Parks Advisory Board – August 15, 2019 – Page 2 Casey Cisneros, Larimer County Noxious Weed Manager and part of Larimer County Land Stewardship Management, attended the PAB to discuss the proposed Town of Estes Park Noxious Weed Ordinance. Cisneros presented Larimer County’s plan and reviewed it with the PAB. The PAB communicated that the Town’s proposed ordinance was reviewed and a letter of recommendation was sent to the Town Board recommending adoption. Based on comments received during that meeting, it appears that the ordinance is too aggressive in nature and would not be adopted. Supervisor Berg invited Cisneros to come present and collaborate with Estes Park to help determine needed changes. The plan presented is in agreement is in compliance with Colorado state law. Cisneros stated that a municipality’s Weed Management Plan should encompass private property in addition to Town property and needs adopted by the Town. Moore questioned how best to modify the ordinance to enable enforcement. Papineau stated the mayor doesn’t agree that the Town should have to comply with the Colorado Noxious weed Act (state law). Cisneros suggested a review of integrated weed management from the USDA and stated that Larimer County should assist with weed management for private property owners via cost-share opportunities. Moore shared the efforts of PAB/ELSA to establish the ordinance then asked Casey how to get buy-in from our mayor and Town Board. The State Coordinator Steve Rider, explained the law and how the municipality is impacted. Member Papineau has this contact information. Incentives are provided for compliance and there are grant opportunities which are provided through the Noxious Weed Fund. Strong education/outreach, management of town properties, and enforcement would be needed should the ordinance pass. Grants could potentially be redistributed to the private owners. Director Muhonen suggested the State Weed Coordinator be invited to the next Town Board meeting at which the ordinance will be discussed. Cisneros suggested leaning on the state law for guidance rather than duplicate within a municipal ordinance. Simply refer everything back to state law as it contains all the requirements that would be captured in the ordinance. MRS WALSH’S GARDEN COMMITTEE UPDATE Chair Moore reported that the committee has been busy. A lot of work has occurred with both stonework and planting. A certification from Native Plant Society was requested and awarded. This information will be sent to Supervisor Berg who will ensure the information is published. New labeling will be taking place and a new kiosk has been installed with information pertaining to what is in bloom and when, insects in the garden, how the legend works, etc. The kiosk may also contain handouts. The committee is working on a date in late August or early September for a Q&A event specific to native plants. The garden is currently having irrigation issues and a committee member is planning to meet with an irrigation specialist with the Town. It was determined that rather than fix the waterfall, there are potential opportunities for planting pockets that specifically need to be near water. This information will be gathered before any work is performed. There is also discussion about the creation of a garden-wide master plan. This will be discussed further and the September PAB meeting. 36 178 Parks Advisory Board – August 15, 2019 – Page 3 AIPP GUIDELINES REVIEW Over the past month members have reviewed the AIPP Guidelines and presented their suggested edits. Public Works Administrative Assistant Megan Van Hoozer will work on updating the guidelines and will provide to the PAB once completed. Wilcocks suggested that all art be GPS located via the existing GIS system including all associated information. This will allow the public to go to the website and access a map that will show them the location of all art. Muhonen stated there is a summer intern that may potentially be able to get this started. Poggenpohl stated that, down the road, he’d like to see an interactive map like this. It was determined that a guiding document is needed for capturing this information. Wilcocks suggested capturing all the locations and building from there. Chair Moore asked if it would be helpful to make this request in writing for the budget process. A motion was made and seconded for Chair Moore to initiate a formal request in writing to Director Muhonen to have AIPP capture this process (Poggenpohl/Wilcocks). All were in favor. The AIPP Guidelines will be reviewed again at the November PAB meeting with the plan to adopt the changes. AIPP FUNDING RESEARCH Member Poggenpohl provided a document showing the research done to date for AIPP funding. He stated that developing a Master Plan will be necessary in order to have a good chance at grant funding. OTHER BUSINESS With no other business to discuss, a motion was made and seconded (Moore/Johnston) to adjourn the meeting at 10: a.m. and all were in favor. Recording Secretary Megan Van Hoozer, Public Works 37 179       38 180 Town of Estes Park, Larimer County, Colorado, August 21, 2019 Minutes of a regular meeting of the Transportation Advisory Board of the Town of Estes Park, Larimer County, Colorado. Meeting held in the Room 202 of Town Hall on the 21st day of August, 2019. Present: Gordon Slack Belle Morris Ron Wilcocks Janice Crow Scott Moulton Stan Black Linda Hanick Also Present: Trustee Carlie Bangs, Town Board Liaison Greg Muhonen, Public Works Director Vanessa Solesbee, Parking & Transit Manager David Hook, Engineering Manager Karin Swanlund, Recording Secretary Absent: Ann Finley Tom Street Chair Morris called the meeting to order at 12:03 p.m. PUBLIC COMMENT: Tom Hannah, 220 3rd Street, spoke on the pedestrian crosswalk at Second Street and Highway 7, stating it is not marked correctly. He recommended a pedestrian island, or a hazard/flasher beacon at this location. He also suggested looking at the online resource Traffic Calming ePrimer, which has a lot of information. David Hook stated that the new traffic engineer at CDOT, Katrina Kloberdanz, could be a good contact. It was noted that Larry Haas, CDOT traffic engineer, will be at the November 20 TAB meeting. APPROVAL OF MINUTES: It was moved and seconded (Slack/Moulton) to approve the June meeting minutes, with one correction, and all were in favor. The revision requested was to change the name “Belle” to Chair Morris on page one, under TAB Priority Grid Review. TAB 2020 PRIORITY/ PW Strategic Plan: Chair Morris shared the Priority Matrix from June and will be preparing a chart from the feedback received. Manager Solesbee will distribute her notes from the June meeting. The Public Works Strategic Plan was briefly discussed. CDOT is tallying its traffic survey and the Highway 7 corridor is a major subject. TAC REGIONAL TRANSIT – SALES TAX The Technical Advisory Committee regional half penny sales tax is being campaigned for the November ballot. The tax could create as much as one billion dollars over the next 20 years in multi-modal transportation help for Larimer County. Director Muhonen explained what it will take to get this on the ballot. It is a Larimer County Commission decision. Public comment at the beginning of the Town Board meeting on August 27 in support of this was recommended, as well as advocating with the community through the Town Public Information Officer. It was moved and seconded (Hanick/Moulton) to support the Sales Tax Funding Proposal with a letter to the Town Board and the Larimer County Board of County Commissioners. All were in favor. 39 181 Transportation Advisory Board – August 21, 2019 – Page 2 PROJECT UPDATES (V. Solesbee – Parking & Transit Manager) Bustang service begins Saturday August 24. There will be a ribbon-cutting ceremony at the Visitor Center. Two buses daily on Saturday and Sunday for the next six weeks will be coming to Estes Park from Denver’s Union Sation. This is a pilot program being conducted by CDOT. The weekend after Labor Day is the Scot Fest and additional buses will be running. The Hiker and the Trolley will not start until the parade is complete. Monday the 9th is the end of the Town’s transit service for the season. Nearly all of the 35,000 shuttle schedules have been dispersed. Para-transit rides are required by CDOT; after researching this, the Town is aiming for the same service coverage as Winter Park. The Silver route will be available for para-transit rides on the second half of the hour. Member Crow stated that the Town can contract with Via or per passenger to cover hours needed. There have been very few complaints from the YMCA regarding the lack of shuttle service this year. The YMCA stated that they would be willing to pay if the service were to be reinstated at a future date. TAB members were asked to volunteer in polling visitors about their parking experience. The Town is fully staffed for parking data collection through September. Two study session discussions are scheduled with the Town Board regarding paid parking. August 24 and October 8 with two options being presented: Status Quo Plus (more permits, longer service, no paid parking) or Paid Parking (30/70). A Town Board public hearing will be on October 22. Pricing and meter options will be provided at the September TAB meeting. There was an increase in the number of citations issued of approximately 4% over 2018. The TAB discussed pricing for the Parking Plan. $144,000 requested for metered parking, $400,000 for the entire project was submitted for approval in the 2020 Town budget process. It was noted that this is not about making money, but losing money makes it a fruitless proposition. PROJECT UPDATES (D. Hook – Engineering Manager) Leaking water from the water main break on Elkhorn lifted the pavement leaving the asphalt 2 inches above the gutter, thus the reason for such a large re-pavement area. Brodie Avenue project is underway. The construction zone has been adapted for school hours. The project is behind schedule, but progressing well. The walking trail is open, but not repaired. There has not been much feedback on the 4th Street improvements. Member Moulton commented that bike transitions need to be well marked and the final curb and gutter creates a steep transition and use of the next driveway is preferred. This is more of an issue when the road is wet. Morris suggested that TAB members ride a bike or walk from 36 onto 4th Street to Highway 7 to get first-hand experience of the new design. Utility and drainage work is going on at Hwy 7 and Lexington Lane by CDOT. Highway 36/Community Drive Roundabout: There will be a public hearing/project open house on August 29, 4:30 p.m. at the Museum. Detailed descriptions of the project will be given, including a Complete Streets Checklist (traffic calming guidelines, and recommended Design Cross-section), Basic Design, and Preliminary Plans. CDOT is aware and supportive of this; their technical review will begin soon. A Field Inspection 40 182 Transportation Advisory Board – August 21, 2019 – Page 3 Review (FIR) will take place on August 22. The project is not fully funded so timing is still a question. One member commented that the speed limit across the causeway needs to be decreased for roundabout accommodation. This will be the “Front Door” to Estes Park and needs to be thoughtfully designed with that in mind. OTHER BUSINESS With no other business to discuss, Chair Morris adjourned the meeting at 2:08 p.m. Recording Secretary Karen Swanlund 41 183       42 184 /D%LyVIHUD GH&RVWD5LFD -XQH 7KH%LRVSKHUH 2I&RVWD5LFD (O%RVTXHQXERVRGH0RQWH9HUGH Ɣ /RVERVTXHVQXERVRVVRQ ERVTXHVGHXQDDOWXUDTXHPLGH HQWUH\PHWURV Ɣ (OERVTXHQXERVRFRQWLQH GHOERVTXHHQWRGRHOPXQGR(O ERVTXHQXERVRFRQWLHQHHO GHOELRGLYHUVRGHOPXQGR Ɣ (QXQVRORiUEROKD\ GLIHUHQWHVHVSHFLDVYLYLHQGR\ SODQWDVLQGLYLGXDOHV +D\SODQWDVTXHFUHFHQHQFLPDGH RWUDVTXHVHOODPDHStILWDV H (O Ɣ &ORXGIRUHVWVDUHIRUHVWV RIDKHLJKWWKDWPHDVXUHV EHWZHHQDQG PHWHUV Ɣ 7KHFORXGIRUHVWFRQWDLQV RIWKHIRUHVW ZRUOGZLGH7KHFORXG IRUHVWFRQWDLQVRIWKH ZRUOG VELRGLYHUVLW\ Ɣ ,QDVLQJOHWUHHWKHUHDUH GLIIHUHQWVSHFLHVOLYLQJ DQGLQGLYLGXDOSODQWV 7KHUHDUHSODQWVWKDWJURZRQ WRSRIRWKHUVFDOOHGHSLSK\WHV 5LR1HJUR%ODFN5LYHU Ɣ 3UREH Ɣ S+WGVR[LJHQRFRQGXFWLYLGDG Ɣ 3HORWD\0HWURGHPDGHUD Ɣ ,JXDOYLPRVORVPDFURLQYHUWHEUDGRV Ɣ ,GHQWLILFDPRVORVWLSRVGH PDFURLQYHUWHEUDGRV Ɣ :HXVHGDSUREHWRPHDVXUHWKHS+ GLVVROYHGVROLGVFRQGXFWLYLW\DQGR[\JHQ OHYHOVRIWKHVWUHDP Ɣ $:RRGHQEDOODQGPHWHUVWLFNZHUHXVHG WRPHDVXUHFXUUHQW Ɣ :HDOVRVDZWKHPDFURLQYHUWHEUDWHV Ɣ :HLGHQWLILHGWKHW\SHVRI PDFURLQYHUWHEUDWHV (OSiMDURFDPSDQD (OPDFKRWLHQHXQDFDEH]DGHFRORUEODQFR\ DEDMRHVFRORUFDIH(OPDFKROHJULWDDOD KHPEUDSDUDLPSUHVLRQDUOD 6XVFRORUHVDWUDHODVKHPEUDV /DKHPEUDHOLJHHOTXHPiVOHDWUDHDHOOD  Ɣ 7KHPDOHKDVDZKLWHKHDGDQG WKHORZHUERG\LVEURZQ Ɣ 7KHPDOHELUGFDOOVWKHIHPDOHWR LPSUHVVKHU Ɣ ,W¶VFRORUVDWWUDFWWKHIHPDOHVDQG WKHIHPDOHJHWVWRFKRRVHZKLFK PDOHPRVWDWWUDFWVKHU %HOOELUGV 7HQRULR Ɣ 7HQRULRHVXQDVHOYDWURSLFDO Ɣ (VRVLJQLILFDTXHHVPiVEDMRTXH PHWURV Ɣ (QODVQRFKHVODVWRUPHQWDVVRQ IXHUWHV\HOUHVWRGHOGtDKDFHVRO Ɣ 7HQRULRLVDWURSLFDOIRUHVW Ɣ $WURSLFDOIRUHVWLVORZHUWKDQ PHWHUV Ɣ 7KHZHDWKHULVXQSUHGLFWDEOHDQG LQ WKH QLJKWV VWRUPV FRPH LQ DQG RIWHQLQWKHGD\LW¶VYHU\VXQQ\ 7HQRULRFRQWLQXDGR 7HQRULRWLHQHXQUtRPX\~QLFR /RVVLOFDWRVGHDOXPLQLRKDFHQTXH HOUtRVHYHDD]XO (OS+KDFHTXHORVVLOLFDWRVGH DOXPLQLRVHH[SDQGDQ\UHIOHMHQ PiV (VWRGHUULEDHOUtRSDUDYHUVHD]XO Ɣ 7HQRULRKDVDYHU\XQLTXHULYHU Ɣ 7KHDOXPLQXPVLOLFDWHVPDNHWKHULYHU ORRNOLNHDWXUTXRLVHFRORU Ɣ 7KH3+PDNHVWKHDOXPLQXPVLOLFDWHV H[SDQGDQGKDYHDODUJHUUHIOHFWLRQ Ɣ 7KHULYHUKDVDFU\VWDOEOXHFRORU 0DQJOHVGH&LSDQFL Ɣ +D\VLHWHHVSHFLHVGH PDQJODUHV Ɣ (OPDQJODUHQODIRWRHV HOPHGLR Ɣ /RVPDQJODUHVVH HQFXHQWUDQHQOXJDUHV K~PHGRVFRPRHQODV RULOODVGHODVUtRV\HQ ORVSDQWDQRV Ɣ7KHUHDUHVHYHQ VSHFLHVRIPDQJURYHV Ɣ 7KHWUHHLQWKHPLGGOH LVWKHPDQJURYH Ɣ 0DQJURYHVDUHIRXQG LQKXPLGSODFHVVXFK DVRQWKHEDQNVRI ULYHUVDQGLQVZDPSV 3DOR9HUGH3DOR9HUGHHVHVSHFLDOSRUTXHHOSDQWDQR\ORVUtRVVRQMXQWRV 3RUTXHKD\EDMDDOWLWXGHVELHQVHFR 7DPELpQSXHGHVHUUHIHULGRFRPRXQSDUDtVRGHPRVTXLWRVFRPR ORVLQVHFWRVSLFDGRUHVFRPRVLHPSUHSUHVHQWH /RV&RFRGULORV\JUDQGHVODJDUWRVVRQFRPXQHVDOUHGHGRUGHOUtR 3DOR9HUGHLVVSHFLDOEHFDXVHWKHVZDPSDQGWKHULYHUVDUHPHOGHG WRJHWKHU %HFDXVHLW¶VDWORZDOWLWXGHLWLVYHU\GU\ ,WFDQDOVREHUHIHUUHGWRDVDSDUDGLVHIRUPRVTXLWRHVVXFKDV ELWLQJLQVHFWVDVDOZD\VSUHVHQW &URFRGLOHVDQGODUJHOL]DUGVDUHFRPPRQDURXQGDQGLQWKHULYHU 3DORYHUGHFRQWLQXHG $SHVDUGHODDSDULHQFLDWUDQTXLOD H[LVWHQSUREOHPDV /DHVSHFLHVLQYDVRUDV\ORVLQFHQGLRV IRUHVWDOHVHQODHVWDFLyQVHFDGHYDVWDQ ODWLHUUD 6HKDQWRPDGRPXFKDVFRQWUDPHGLGDV\ KDQWHQLGREDVWDQWHp[LWRHQGLVWLQJXLUODV DPHQD]DV (VXQHVIXHU]RFRPXQLWDULR\PDQWLHQH HOiUHDHQVXEHOOH]DQDWXUDO 'HVSLWHWKHFDOPDSSHDUDQFH WKHUHDUHSUREOHPV ,QYDVLYHVSHFLHVDQGIRUHVWILUHV LQWKHGU\VHDVRQGHYDVWDWHWKH HDUWK 0DQ\FRXQWHUPHDVXUHVKDYH EHHQWDNHQDQGKDYHEHHQTXLWH VXFFHVVIXOLQGLVWLQJXLVKLQJ WKUHDWV ,WLVDFRPPXQLW\HIIRUWDQG PDLQWDLQVWKHDUHDLQLWVQDWXUDO EHDXW\ 1 PROCEDURE FOR LAND USE PUBLIC HEARING Applicable items include: Annexation, Amended Plats, Boundary Line Adjustments, Development Plans, Rezoning, Special Review, Subdivision 1. MAYOR. The next order of business will be the public hearing on PLANNING COMMISSION CONSENT ITEM 1.A PRELIMINARY CONDOMINIUM MAP, THE DIVIDE CONDOMINIUMS AT WILDFIRE ROAD, WESTOVER CONSTRUCTION, INC., RDA ASSOCIATES LLC, APPLICANTS AND PLANNING COMMISSION CONSENT ITEM 1.B PRELIMINARY CONDOMINIUM MAP, THE MEADOW CONDOMINIUMS AT WILDFIRE ROAD, WESTOVER CONSTRUCTION, INC., RDA ASSOCIATES LLC, APPLICANTS. SUGGESTED MOTION FOR CONTINUED CONSENT ITEMS.  I move to approve/deny continuing the Planning Commission Consent Items 1.A & 1.B to the October 8, 2019 Town Board Meeting. VOTE ON THE MOTION. Vote on the motion or consideration of another action. 43 185       186 COMMUNITY DEVELOPMENT Memo To: Honorable Mayor Jirsa Board of Trustees Through: Town Administrator Machalek From: Jeffrey Woeber, Senior Planner Date: September 24, 2019 RE: Continuance Request, Preliminary Condominium Map, The Divide Condominiums at Wildfire, Wildfire Road, Westover Construction, Inc., RDA Associates LLC, Applicants The Town of Estes Park Community Development staff requests a continuance of the Preliminary Condominium Map for The Divide Condominiums at Wildfire, to the October 8, 2019 Town Board of Trustees hearing. 44 187 COMMUNITY DEVELOPMENT Memo To: Honorable Mayor Jirsa Board of Trustees Through: Town Administrator Machalek From: Jeffrey Woeber, Senior Planner Date: September 24, 2019 RE: Continuance Request, Preliminary Condominium Map, The Meadow Condominiums at Wildfire, Wildfire Road, Westover Construction, Inc., RDA Associates LLC, Applicants The Town of Estes Park Community Development staff requests a continuance of the Preliminary Condominium Map for The Meadow Condominiums at Wildfire, to the October 8, 2019 Town Board of Trustees hearing. 45 188 PROCEDURE FOR PUBLIC HEARING Applicable items include: Rate Hearings, Code Adoption, Budget Adoption 1. MAYOR. The next order of business will be the public hearing on ORDINANCE 24-19 AUTHORIZING ISSUANCE OF THE SERIES 2019 POWER AND COMMUNICATIONS REVENUE BONDS. At this hearing, the Board of Trustees shall consider the information presented during the public hearing, from the Town staff, public comment, and written comments received on the application. Any member of the Board may ask questions at any stage of the public hearing which may be responded to at that time. Mayor declares the Public Hearing open. 2. STAFF REPORT. Review the staff report. 3. PUBLIC COMMENT. Any person will be given an opportunity to address the Board concerning the Ordinance. All individuals must state their name and address for the record. Comments from the public are requested to be limited to three minutes per person. 4. MAYOR. Ask the Town Clerk whether any communications have been received in regard to the Ordinance which are not in the Board packet. Ask the Board of Trustees if there are any further questions concerning the Ordinance. Indicate that all reports, statements, exhibits, and written communications presented will be accepted as part of the record. Declare the public hearing closed. Request Board consider a motion. 47 189 7. SUGGESTED MOTION. Suggested motion(s) are set forth in the staff report. 8. DISCUSSION ON THE MOTION. Discussion by the Board on the motion. 9. VOTE ON THE MOTION. Vote on the motion or consideration of another action. 48 190 FINANCE DEPARTMENT Memo To: Honorable Mayor Jirsa Board of Trustees Through: Town Administrator Machalek From: Duane Hudson, Finance Director Date: September 24, 2019 RE: Ordinance 24-19 Authorizing Issuance of the Series 2019 Power and Communications Revenue Bonds (Mark all that apply) PUBLIC HEARING ORDINANCE LAND USE CONTRACT/AGREEMENT RESOLUTION OTHER______________ QUASI-JUDICIAL YES NO Objective: Adopt ordinance 24-19 authorizing the issuance of the Series 2019A and 2019B Power and Communications Revenue Bonds and delegating final authority for document execution at the time of bond closing. Present Situation: This is the final Board action necessary for the sale of the bonds to finance the municipal broadband project. As you know, the process to bring a gigabit broadband service to the community started years ago and is now becoming a reality. In 2014, the Town partnered with the Estes Park Economic Development Corporation to assess the demand for broadband services in the area. In February 2015, the voters overwhelmingly approved the Town’s right to provide broadband services with 92% of voters in favor of this. Later that summer, NEO Connect completed a business plan and feasibility analysis for a Fiber-to-Premise network to serve the Light and Power service area. In 2016, the Town had a take rate study conducted by Jill Mosteller, Ph.D. which confirmed the demand for such a service. Later that year, Manweiler Telecom Consulting, LLC was commissioned to begin a detailed engineering design for a gigabit broadband system for the service area which was completed and is currently being used by staff to complete the final design. In March 2019, the Town Board unanimously approved the expansion of the Light and Power Enterprise Fund to include communication facilities and approved a name change to “Power and Communication Enterprise Fund” (P&C). The Town also approved a budget amendment authorizing the use of $3,000,000 of P&C funding to start buildout of a pilot area. Within the last couple months, NEO Connect completed a formal update to financial projections for construction and operation of a municipal broadband system. 49 191 Proposal: The proposed municipal broadband system will be operated as a division of the Power and Communication Enterprise Fund. There are a number of benefits to this arrangement that have been discussed and conveyed during previous Board actions and communications. To complete construction and operational startup of the proposed municipal broadband system, the Town is planning on issuing Power and Communication Enterprise Fund Revenue Bonds as presented in the accompanying bond ordinance. The proposed bonds are being sold using a negotiated sale process as described in the Town’s debt management policy # 605. Working with the Town’s Financial Advisor Jim Manire of Hilltop Securities Inc., Bond Attorney Richard Buddin of Kutak Rock LLP, and Underwriter Bryan Stelmack of Stifel, Nicolaus and Co. Inc. and numerous others, the following financing structure has been developed. The proposed bond issuance will finance: • The refunding of $3,030,000 outstanding Light and Power Revenue Bonds Series 2007; and • The smart grid system for the Town’s Light and Power Facilities; • The installation of a fiber-to-premises broadband network. The bond principal amount, together with premiums earned on the sale of the bonds, will be designed to achieve the desired $33 to $35 million of funding. The exact details will not be known until the day of the sale since interest rates and other market factors can impact the proceeds received, requiring the ability to make final changes on the day of sale to achieve the desired funding. As such, the bond ordinance provides parameters to guide the final terms as follows: • Nontaxable Refunding and Improvement Power and Communications Revenue Bonds, Series 2019A o Principal up to $27,000,000 o Net effective interest rate for the refunding portion shall not exceed 3.87% o Net effective interest rate for the financing portion shall not exceed 4.0% o Mature no later than Nov 1, 2039 (20 years) o Maximum Annual Debt Service Requirements shall not exceed $2,750,000 • Taxable Power and Communications Revenue Bonds, Series 2019B o Principal up to $8,000,000 o Net effective interest rate shall not exceed 3.45% o Maturity no later than Nov 1, 2031 o Maximum Annual Debt Service Requirements shall not exceed $2,500,000 We are currently planning on an October 29, 2019 bond sale date with ultimate settlement in mid Nov. This allows us to sell our bonds before the Nov election which 50 192 typically has several bond issues ready to go upon voter approval. On the day of sale, the final bond terms will be fixed in a “Bond Purchase Agreement” between the Town and Stifel. The bond ordinance delegates final approval and execution authority for this Bond Purchase Agreement and other required documents to the Mayor, Town Administrator or Finance Officer. Both taxable and nontaxable issues are secured by a pledge of Power and Communication Enterprise Fund revenues as explained in Section 17 of Bond Ordinance. This includes both electric revenues and broadband revenues. It is important to note that Section 23 of the Bond Ordinance requires the Town to set rates that will achieve sufficient revenues, after payment of operation and maintenance expenses, to pay an amount at least equal to 125% of the combined annual debt service for outstanding bonds, very similar to most revenue bonds, including the existing 2007 Bonds. The final bond structure will be sufficient to generate the funding needed. Based on current market conditions, but subject to change, the anticipated funding need is as follows: Project Construction Funds $ 26,000,000 Working Capital 1,040,000 Capitalized Interest 2,892,014 Refunding 3,039,374 Cost of Issuance 150,000 Underwriter’s Discount 108,349 Additional Proceeds (Rounding) 3,530 Total $ 33,233,267 The Town is basing its budget and project plan on a 40% take rate. With 40% of customers signing up when available, the system is expected to create positive cash flows beginning in 2021. We also had a formal proforma projection calculated at a take rate of 35% with the broadband division still expected to generate positive cash flows in 2021. These projections did not include a broadband rate increase, however management may suggest rate changes in the future as deemed necessary. Even if take rates were significantly less (i.e. approx. 27% take rate), operations are expected to generate positive cash flows beginning in 2021 until the in-home hardware replacement program starts in 2025. We can always make operational changes to delay that program if take rates are not meeting expectations. Advantages: • Provides funding to complete the smart grid system for the electric division. • Provides funding to refund the existing 2007 Bonds. • Provides working capital and capitalized interest to reduce cash flow burdens during the startup phase of the system. • Provides more flexibility in the buildout schedule by using a taxable bond component. 51 193 • Most importantly, the project will provide the community and P&C service area access to a gigabit broadband service not currently available nor expected to be available in the foreseeable future through other service providers. Disadvantages: • This is the largest debt issuance the Town has completed to date. • This adds additional service demands and complexity to the Town’s operations. • This issuance imposes debt service obligations for the next 20 years on the Power and Communication Enterprise Fund. Action Recommended: Adopt Ordinance 24-19 to authorize issuance of Power and Communication Revenue Bonds Series 2019A and Series 2019B. Finance/Resource Impact: Total bond proceeds estimated at $33 to $35 million. Level of Public Interest Implementation of a gigabit broadband system has very strong public support. Sample Motion: I move for the approval/denial of Ordinance 24-19 authorizing the issuance of Power and Communication Revenue Bonds Series 2019A and 2019B. Attachments: Attachment A: Summarized Proforma Financial Data Linked - Ordinance 24-19 52 194 dKtEK&^d^WZ<WZK:dKWZd/E'^ddDEdZKE/s/^/KEKE>zdĂŬĞZĂƚĞ ϰϬйϮϬϮϬ ϮϬϮϭ ϮϬϮϮ ϮϬϮϯ ϮϬϮϰ ϮϬϮϱ ϮϬϮϲ ϮϬϮϳ ϮϬϮϴZĞǀĞŶƵĞƐƌŽĂĚďĂŶĚZĞǀĞŶƵĞƐϴϴϳ͕ϰϵϴϮ͕Ϯϱϵ͕ϴϳϭϯ͕ϴϳϭ͕ϵϬϭϱ͕ϬϭϬ͕ϲϮϯϱ͕ϲϴϲ͕Ϭϱϲϱ͕ϳϲϰ͕ϳϵϭϱ͕ϳϳϵ͕Ϯϯϯϱ͕ϳϳϵ͕Ϯϯϯϱ͕ϳϳϵ͕Ϯϯϯ/ŶƐƚĂůůĂƚŝŽŶ&ĞĞƐϭϯϬ͕ϵϳϱϯϯϴ͕ϵϮϬϱϴϮ͕ϳϵϵϳϰϳ͕ϳϬϵϮϭϯ͕ϱϰϯϮϭϲ͕ϱϬϱϮϭϳ͕ϱϰϵϮϭϳ͕ϱϰϵϮϭϳ͕ϱϰϵdŽƚĂůZĞǀĞŶƵĞƐ ϭ͕Ϭϭϴ͕ϰϳϯϮ͕ϱϵϴ͕ϳϵϭϰ͕ϰϱϰ͕ϳϬϬϱ͕ϳϱϴ͕ϯϯϮϱ͕ϴϵϵ͕ϱϵϵϱ͕ϵϴϭ͕Ϯϵϲϱ͕ϵϵϲ͕ϳϴϮϱ͕ϵϵϲ͕ϳϴϮϱ͕ϵϵϲ͕ϳϴϮdžƉĞŶƐĞƐ/ŶƚĞƌŶĞƚĐĐĞƐƐϴϱ͕ϭϵϳϵϱ͕ϱϰϰϭϬϳ͕ϭϮϰϭϭϰ͕ϳϭϱϭϭϵ͕ϰϵϰϭϮϬ͕ϲϵϬϭϮϭ͕ϭϭϭϭϮϭ͕ϭϭϭϭϮϭ͕ϭϭϭ/ŶƚĞƌŶĞƚĂĐŬďŽŶĞdžƉĞŶƐĞƐϭϬϴ͕ϲϲϴϭϭϳ͕ϳϭϭϭϰϮ͕ϴϮϲϭϲϰ͕ϯϮϲϭϳϯ͕ϳϱϴϭϳϱ͕ϲϱϴϭϳϲ͕ϯϮϳϭϳϲ͕ϯϮϳϭϳϲ͕ϯϮϳŽŶƚƌĂĐƚĞĚ^ĞƌǀŝĐĞƐϵϯ͕ϵϬϬϵϯ͕ϵϬϬϯϬ͕ϬϬϬϯϬ͕ϬϬϬϯϬ͕ϬϬϬϯϬ͕ϬϬϬϯϬ͕ϬϬϬϯϬ͕ϬϬϬϯϬ͕ϬϬϬ^ƚĂĨĨdžƉĞŶƐĞƐϭ͕ϭϬϵ͕ϳϲϱϵϬϵ͕ϳϲϱϭ͕ϰϮϵ͕ϳϲϱϭ͕ϰϮϵ͕ϳϲϱϭ͕ϰϮϵ͕ϳϲϱϭ͕ϰϮϵ͕ϳϲϱϭ͕ϰϮϵ͕ϳϲϱϭ͕ϰϮϵ͕ϳϲϱϭ͕ϰϮϵ͕ϳϲϱ'ĞŶĞƌĂůDĂƌŬĞƚŝŶŐϯϱ͕ϬϬϬϯϱ͕ϬϬϬϯϱ͕ϬϬϬϯϱ͕ϬϬϬϯϱ͕ϬϬϬϯϱ͕ϬϬϬϯϱ͕ϬϬϬϯϱ͕ϬϬϬϯϱ͕ϬϬϬŝůůŝŶŐ^LJƐƚĞŵͬŽƐƚϯϵ͕ϵϲϰ ϵϬ͕ϯϯϲϭϰϵ͕ϰϵϰϭϵϭ͕Ϭϰϳϭϵϱ͕ϱϱϬϭϵϴ͕ϭϱϰϭϵϴ͕ϲϰϳ ϭϵϴ͕ϲϰϳ ϭϵϴ͕ϲϰϳsĞŚŝĐůĞΘƋƵŝƉDĂŝŶƚΘKƉĞƌĂƚŝŽŶƐϴϱ͕ϬϬϬ ϴϱ͕ϬϬϬϴϱ͕ϬϬϬϴϱ͕ϬϬϬϴϱ͕ϬϬϬϲϵϴ͕ϲϲϱϴϴϭ͕ϴϰϬϵϮϮ͕ϲϱϵϵϰϮ͕ϲϯϱ'ĞŶĞƌĂůĂŶĚĚŵŝŶŽƐƚƐϱϳ͕ϲϬϬ ϱϳ͕ϲϬϬϱϳ͕ϲϬϬϱϳ͕ϲϬϬϱϳ͕ϲϬϬϱϳ͕ϲϬϬϱϳ͕ϲϬϬϱϳ͕ϲϬϬϱϳ͕ϲϬϬdŽƚĂůdžƉĞŶƐĞƐ ϭ͕ϲϭϱ͕Ϭϵϰϭ͕ϰϴϰ͕ϴϱϳϮ͕Ϭϯϲ͕ϴϬϵϮ͕ϭϬϳ͕ϰϱϰϮ͕ϭϮϲ͕ϭϲϳϮ͕ϳϰϱ͕ϱϯϮϮ͕ϵϯϬ͕ϮϵϬϮ͕ϵϳϭ͕ϭϬϵϮ͕ϵϵϭ͕ϬϴϱEĞƚ/ŶĐŽŵĞ;>ŽƐƐͿĞĨŽƌĞĞďƚ^ĞƌǀŝĐĞ;ϱϵϲ͕ϲϮϭͿϭ͕ϭϭϯ͕ϵϯϰϮ͕ϰϭϳ͕ϴϵϭϯ͕ϲϱϬ͕ϴϳϴϯ͕ϳϳϯ͕ϰϯϮϯ͕Ϯϯϱ͕ϳϲϰϯ͕Ϭϲϲ͕ϰϵϮϯ͕ϬϮϱ͕ϲϳϯϯ͕ϬϬϱ͕ϲϵϳĞďƚ^ĞƌǀŝĐĞƌŽĂĚďĂŶĚĞďƚ^ĞƌǀŝĐĞ;ŶĞƚŽĨĐĂƉŝƚĂůŝnjĞĚŝŶƚĞƌĞƐƚͿͲͲͲ ϭ͕ϳϬϬ͕ϳϱϬϭ͕ϳϬϭ͕ϲϮϳϭ͕ϳϬϭ͕ϰϳϮϭ͕ϳϬϬ͕ϰϮϬϭ͕ϳϬϴ͕ϮϴϬϮ͕ϭϭϬ͕ϬϵϭEĞƚ/ŶĐŽŵĞ;>ŽƐƐͿĨŽƌƌŽĂĚďĂŶĚŝǀŝƐŝŽŶ;ϱϵϲ͕ϲϮϭͿϭ͕ϭϭϯ͕ϵϯϰϮ͕ϰϭϳ͕ϴϵϭϭ͕ϵϱϬ͕ϭϮϴϮ͕Ϭϳϭ͕ϴϬϱϭ͕ϱϯϰ͕ϮϵϮϭ͕ϯϲϲ͕ϬϳϮϭ͕ϯϭϳ͕ϯϵϯϴϵϱ͕ϲϬϲEKd͗dŚŝƐƐĐŚĞĚƵůĞŝƐƉƌĞƐĞŶƚĞĚŽŶĂĐĂƐŚďĂƐŝƐ͕ĞdžĐůƵĚŝŶŐĚĞƉƌĞĐŝĂƚŝŽŶĂŶĚĐĂƉŝƚĂůĐŽƐƚƐ͘/ƚĚŽĞƐŶŽƚŝŶĐůƵĚĞƚŚĞĚĞďƚĂƚƚƌŝďƵƚĂďůĞƚŽƚŚĞůĞĐƚƌŝĐŝǀŝƐŝŽŶƐŵĂƌƚŐƌŝĚŶŽƌƚŚĞƌĞĨƵŶĚŝŶŐŽĨƚŚĞϮϬϬϳďŽŶĚƐdŚĞƐĞĂƌĞƉƌŽũĞĐƚŝŽŶƐŽŶůLJĂŶĚĂĐƚƵĂůƉĞƌĨŽƌŵĂŶĐĞŵĂLJǀĂƌLJƐŝŐŶŝĨŝĐĂŶƚůLJĚĞƉĞŶĚŝŶŐŽŶĂĐƚƵĂůďƵŝůĚŽƵƚƐĐŚĞĚƵůĞ͕ƚĂŬĞƌĂƚĞƐ͕ĞƚĐdŚĞĚĞďƚƐĞƌǀŝĐĞŝƐďĂƐĞĚŽŶůĂƚĞƐƚĞƐƚŝŵĂƚĞƐ͘ZĞǀĞŶƵĞƐĂŶĚĞdžƉĞŶƐĞƐďĂƐĞĚŽŶƚŚĞƵŐϮϬϭϵ&ŝŶĂŶĐŝĂůDŽĚĞůƉƌĞƉĂƌĞĚďLJEKŽŶŶĞĐƚAttachment A - Summarized Proforma Financial Data53195 dŽǁŶŽĨƐƚĞƐWĂƌŬdĂŬĞZĂƚĞ^ĞŶƐŝƚŝǀŝƚLJŶĂůLJƐŝƐƵŐƵƐƚϮϬϭϵWƌŽ&ŽƌŵĂWƌŽũĞĐƚŝŽŶƐEKŽŶŶĞĐƚϮϬϮϬ ϮϬϮϭ ϮϬϮϮ ϮϬϮϯ ϮϬϮϰ ϮϬϮϱ ϮϬϮϲ ϮϬϮϳ ϮϬϮϴϯϱйdĂŬĞZĂƚĞZĞǀĞŶƵĞƐ ϴϱϭ͕ϲϵϲ Ϯ͕ϭϵϲ͕ϱϮϭ ϯ͕ϴϬϳ͕ϱϭϭϰ͕ϵϳϰ͕ϮϬϬϱ͕ϭϱϬ͕ϯϱϮϱ͕ϮϯϮ͕Ϭϰϵϱ͕Ϯϰϳ͕ϳϮϵϱ͕Ϯϰϳ͕ϳϮϵϱ͕Ϯϰϳ͕ϳϮϵdžƉĞŶƐĞƐϭ͕ϲϬϳ͕ϭϰϬϭ͕ϰϲϲ͕ϲϬϰϮ͕ϬϬϱ͕ϴϭϰϮ͕Ϭϱϵ͕ϴϲϱϮ͕Ϭϴϳ͕ϯϬϮϮ͕ϳϬϭ͕ϴϴϵϮ͕ϴϳϭ͕ϬϴϳϮ͕ϵϬϴ͕ϰϵϰϮ͕ϵϮϴ͕ϯϬϰEĞƚĞĨŽƌĞĞďƚ^ǀĐ;ϳϱϱ͕ϰϰϯͿϳϮϵ͕ϵϭϳϭ͕ϴϬϭ͕ϲϵϳϮ͕ϵϭϰ͕ϯϯϱϯ͕Ϭϲϯ͕ϬϱϬϮ͕ϱϯϬ͕ϭϲϬϮ͕ϯϳϲ͕ϲϰϭϮ͕ϯϯϵ͕ϮϯϱϮ͕ϯϭϵ͕ϰϮϱĞďƚ^ǀĐͲͲͲ ϭ͕ϳϬϬ͕ϳϱϬϭ͕ϳϬϭ͕ϲϮϳϭ͕ϳϬϭ͕ϰϳϮϭ͕ϳϬϬ͕ϰϮϬϭ͕ϳϬϴ͕ϮϴϬϮ͕ϭϭϬ͕ϬϵϭEĞƚ/ŶĐŽŵĞ;>ŽƐƐͿ;ϳϱϱ͕ϰϰϯͿϳϮϵ͕ϵϭϳϭ͕ϴϬϭ͕ϲϵϳϭ͕Ϯϭϯ͕ϱϴϱϭ͕ϯϲϭ͕ϰϮϯϴϮϴ͕ϲϴϴϲϳϲ͕ϮϮϭϲϯϬ͕ϵϱϱϮϬϵ͕ϯϯϰϰϬйdĂŬĞZĂƚĞZĞǀĞŶƵĞƐϭ͕Ϭϭϴ͕ϰϳϯϮ͕ϱϵϴ͕ϳϵϭϰ͕ϰϱϰ͕ϳϬϬϱ͕ϳϱϴ͕ϯϯϮϱ͕ϴϵϵ͕ϱϵϵϱ͕ϵϴϭ͕Ϯϵϲϱ͕ϵϵϲ͕ϳϴϮϱ͕ϵϵϲ͕ϳϴϮϱ͕ϵϵϲ͕ϳϴϮdžƉĞŶƐĞƐϭ͕ϲϭϱ͕Ϭϵϰϭ͕ϰϴϰ͕ϴϱϳϮ͕Ϭϯϲ͕ϴϬϵϮ͕ϭϬϳ͕ϰϱϰϮ͕ϭϮϲ͕ϭϲϳϮ͕ϳϰϱ͕ϱϯϮϮ͕ϵϯϬ͕ϮϵϬϮ͕ϵϳϭ͕ϭϬϵϮ͕ϵϵϭ͕ϬϴϱEĞƚĞĨŽƌĞĞďƚ^ǀĐ;ϱϵϲ͕ϲϮϭͿϭ͕ϭϭϯ͕ϵϯϰϮ͕ϰϭϳ͕ϴϵϮϯ͕ϲϱϬ͕ϴϳϴϯ͕ϳϳϯ͕ϰϯϮϯ͕Ϯϯϱ͕ϳϲϱϯ͕Ϭϲϲ͕ϰϵϮϯ͕ϬϮϱ͕ϲϳϯϯ͕ϬϬϱ͕ϲϵϳĞďƚ^ǀĐͲͲͲ ϭ͕ϳϬϬ͕ϳϱϬϭ͕ϳϬϭ͕ϲϮϳϭ͕ϳϬϭ͕ϰϳϮϭ͕ϳϬϬ͕ϰϮϬϭ͕ϳϬϴ͕ϮϴϬϮ͕ϭϭϬ͕ϬϵϭEĞƚ/ŶĐŽŵĞ;>ŽƐƐͿ;ϱϵϲ͕ϲϮϭͿϭ͕ϭϭϯ͕ϵϯϰϮ͕ϰϭϳ͕ϴϵϮϭ͕ϵϱϬ͕ϭϮϴϮ͕Ϭϳϭ͕ϴϬϱϭ͕ϱϯϰ͕Ϯϵϯϭ͕ϯϲϲ͕ϬϳϮϭ͕ϯϭϳ͕ϯϵϯϴϵϱ͕ϲϬϲϱϬйdĂŬĞZĂƚĞZĞǀĞŶƵĞƐϭ͕ϮϬϮ͕ϰϴϮΨϯ͕ϭϲϳ͕ϱϰϴΨϱ͕ϱϬϱ͕ϮϮϴΨϳ͕ϭϵϮ͕ϱϱϳΨϳ͕ϯϴϯ͕ϳϳϬΨϳ͕ϰϴϬ͕ϳϱϵΨϳ͕ϰϵϲ͕ϰϯϵΨϳ͕ϰϵϲ͕ϰϯϵΨϳ͕ϰϵϲ͕ϰϯϵΨdžƉĞŶƐĞƐϭ͕ϲϮϰ͕ϬϲϬϭ͕ϱϮϮ͕ϰϬϭϮ͕Ϭϴϳ͕ϰϴϲϮ͕ϭϳϴ͕ϯϵϯϮ͕ϮϬϮ͕ϯϱϭϮ͕ϴϮϴ͕ϬϳϬϯ͕Ϭϯϯ͕ϭϳϵϯ͕ϬϵϮ͕ϵϳϳϯ͕ϭϭϲ͕ϱϯϮEĞƚĞĨŽƌĞĞďƚ^ǀĐ;ϰϮϭ͕ϱϳϴͿΨϭ͕ϲϰϱ͕ϭϰϳΨϯ͕ϰϭϳ͕ϳϰϮΨϱ͕Ϭϭϰ͕ϭϲϱΨϱ͕ϭϴϭ͕ϰϭϵΨϰ͕ϲϱϮ͕ϲϴϴΨϰ͕ϰϲϯ͕ϮϱϵΨϰ͕ϰϬϯ͕ϰϲϮΨϰ͕ϯϳϵ͕ϵϬϳΨĞďƚ^ǀĐͲͲͲ ϭ͕ϳϬϬ͕ϳϱϬϭ͕ϳϬϭ͕ϲϮϳϭ͕ϳϬϭ͕ϰϳϮϭ͕ϳϬϬ͕ϰϮϬϭ͕ϳϬϴ͕ϮϴϬϮ͕ϭϭϬ͕ϬϵϭEĞƚ/ŶĐŽŵĞ;>ŽƐƐͿ;ϰϮϭ͕ϱϳϴͿϭ͕ϲϰϱ͕ϭϰϳϯ͕ϰϭϳ͕ϳϰϮϯ͕ϯϭϯ͕ϰϭϱϯ͕ϰϳϵ͕ϳϵϮϮ͕ϵϱϭ͕ϮϭϲϮ͕ϳϲϮ͕ϴϯϵϮ͕ϲϵϱ͕ϭϴϮϮ͕Ϯϲϵ͕ϴϭϲAttachment A - Summarized Proforma Financial Data54196 4844-4843-7663.3 ORDINANCE NO. 24-19 TOWN OF ESTES PARK, COLORADO ACTING BY AND THROUGH ITS POWER AND COMMUNICATIONS ENTERPRISE AN ORDINANCE OF THE TOWN OF ESTES PARK, COLORADO, ACTING BY AND THROUGH ITS POWER AND COMMUNICATIONS ENTERPRISE, AUTHORIZING THE ISSUANCE OF REFUNDING AND IMPROVEMENT POWER AND COMMUNICATIONS REVENUE BONDS, SERIES 2019A, AND OF POWER AND COMMUNICATIONS REVENUE BONDS, TAXABLE SERIES 2019B; PROVIDING FOR THE FORMS AND OTHER DETAILS IN CONNECTION WITH SAID BONDS; PROVIDING FOR THE PAYMENT OF THE BONDS FROM THE NET INCOME DERIVED FROM PROVIDING POWER AND COMMUNICATIONS SERVICES, AND MAKING CERTAIN COVENANTS IN CONNECTION THEREWITH; AUTHORIZING THE EXECUTION AND DELIVERY OF AGREEMENTS AND DOCUMENTS IN CONNECTION WITH THE BONDS; AND PROVIDING OTHER MATTERS RELATING THERETO. WHEREAS, the Town of Estes Park, Colorado (the “Town”) is a statutory town and political subdivision duly organized and existing pursuant to the laws of the State of Colorado (the “State”); and WHEREAS, the Town is authorized by section 31-15-707, Colorado Revised Statutes, to own, operate and maintain electric light and power works and distribution systems and all appurtenances necessary to said works and systems, and the Town has heretofore undertaken to acquire and develop an electric light and power works and distribution system, which is operated and maintained as a utility and income-producing project (collectively, the “Light and Power Facilities”); and WHEREAS, the Town is authorized by article 27 of title 29, Colorado Revised Statutes, and an election held on February 3, 2015 pursuant to such statute, to provide cable television service, telecommunications service, and advanced service (collectively, “Broadband Services”) to residential and commercial customers within the service area of the Town’s Light and Power Facilities; and WHEREAS, the Board of Trustees (the “Board”) of the Town has formally established a Light and Power Enterprise (the “Light and Power Enterprise”) pursuant to Ordinance No. 7-99, adopted September 28, 1999; and WHEREAS, pursuant to Ordinance No. 02-19, adopted March 12, 2019, the Board expanded the services of the Light and Power Enterprise to include Broadband 197 2 4844-4843-7663.3 Services and reconstituted and renamed the Light and Power Enterprise as the Power and Communications Enterprise (the “Enterprise”); and WHEREAS, the Light and Power Facilities have been and continue to be operated by the Enterprise, and the broadband network necessary to provide telecommunications service and advanced service (the “Communications Facilities”) will be operated by the Enterprise, as a government-owned business, which is authorized to issue its own revenue bonds and receives under 10% of annual revenue in grants from all Colorado state and local governments combined, and it is hereby determined that the Enterprise is an enterprise within the meaning of Article X, Section 20 of the Colorado Constitution; and WHEREAS, the Town, acting by and through the Light and Power Enterprise, has heretofore issued certain of its obligations designated as “Light and Power Revenue Bonds, Series 2007” in the aggregate principal amount of $6,180,000 and which are currently outstanding in the aggregate principal amount of $3,350,000 (the “Series 2007 Bonds”); and WHEREAS, the Board, acting as the governing body of the Enterprise, has heretofore determined and does hereby determine that it is necessary to fund (i) the installation of the smart grid system for the Light and Power Facilities and (ii) the installation of Communications Facilities for a fiber-to-premises broadband network in order to provide a level of broadband service that the Town identifies as necessary to provide internet service with speed, quality, cost and back up redundancy equivalent to what is available in large cities in the United States of America (collectively, the “Project”), to further the health, safety and welfare of the Town and its residents; and WHEREAS, the Board, acting as the governing body of the Enterprise, deems it necessary and appropriate to authorize the issuance of Refunding and Improvement Power and Communications Revenue Bonds, Series 2019A (the “2019A Bonds”), upon the terms described herein, for the purposes of: (a) redeeming the remaining outstanding Series 2007 Bonds, except the 2019 maturity thereof (the “Refunded Bonds”), (b) financing a portion of the Project, (c) funding a debt service reserve account, (d) funding capitalized interest on the non-refunding portion of the 2019A Bonds, and (e) paying the costs of issuance of the 2019A Bonds; and WHEREAS, the Board, acting as the governing body of the Enterprise, deems it necessary and appropriate to authorize the issuance of Power and Communications Revenue Bonds, Taxable Series 2019B (the “2019B Bonds”), upon the terms described herein, for the purposes of (a) financing a portion of the Project, (b) funding a debt service reserve account, (c) funding capitalized interest on the 2019B Bonds, and (d) paying the costs of issuance of the 2019B Bonds; and WHEREAS, the 2019A Bonds and the 2019B Bonds shall be collectively referred to herein as the “Bonds”; and 198 3 4844-4843-7663.3 WHEREAS, the Bonds, when issued by the Town, acting by and through the Enterprise, are permitted, under Article X, Section 20 of the Colorado Constitution, to be issued without an election; and WHEREAS, the Bonds will be payable solely from and secured by a first lien on the net income, after payment of operating expenses, derived by the Enterprise from the operation of the Light and Power Facilities and the Communications Facilities (collectively, the “Facilities”), including the Project; and WHEREAS, the Town, acting by and through the Enterprise, has begun the installation of Communications Facilities to serve the Ranch Meadows and Carriage Hills neighborhoods as a pilot project (the “Pilot Project”); and WHEREAS, the moneys spent on the Pilot Project will be reimbursed to the Town, acting by and through the Enterprise, from proceeds of the 2019A Bonds pursuant to Resolution No. 09-19, adopted March 26, 2019; and WHEREAS, pursuant to Section 18-8-308, Section 24-18-109, and Section 24-18-110, Colorado Revised Statutes (“C.R.S.”), no member of the Board has any substantial financial interest in the subject of this Ordinance, or any personal or private interest, whether or not financial, in the subject of this Ordinance; and WHEREAS, bonds of the Town, acting by and through the Enterprise, may be sold by public or private sale to the best advantage of the Town; and WHEREAS, the Board has engaged Hilltop Securities Inc., of Denver, Colorado as municipal advisor to the Town (the “Municipal Advisor”) and Stifel, Nicolaus & Company, Incorporated (“Stifel” or the “Underwriter”) to underwrite the sale of the Bonds; and WHEREAS, there have been filed with the Board (a) a proposed form of Paying Agency Agreement, as defined herein; (b) a form of the Preliminary Official Statement to be distributed by the Underwriter to prospective purchasers of the Bonds; (c) a proposed form of Bond Purchase Agreement (the “Bond Purchase Agreement”), between the Town, acting by and through the Enterprise, and the Underwriter, for the sale of the Bonds to the Underwriter; and (d) a proposed form of Continuing Disclosure Agreement, as defined herein; and WHEREAS, the Board, acting as the governing body of the Enterprise, desires to approve the forms of such documents, authorize the execution thereof, and authorize the issuance of the Bonds pursuant to this Ordinance. BE IT ORDAINED BY THE BOARD OF TRUSTEES OF THE TOWN OF ESTES PARK, COLORADO, ACTING AS THE GOVERNING BODY OF ITS POWER AND COMMUNICATIONS ENTERPRISE: 199 4 4844-4843-7663.3 Section 1. Definitions. In addition to the terms defined in the preambles of this Ordinance, the following capitalized terms shall have the respective meanings set forth below unless the context hereof requires otherwise: “Acquire” or “Acquisition” means the design, construction, reconstruction, purchase, lease, gift, transfer, assignment, option to purchase, grant from the federal government or any public body or other person, endowment, bequest, devise, installation, condemnation, contract, or other acquirement or other provision, or any combination thereof, of facilities, other property, any project, or an interest therein. “Board” means the Board of Trustees, the governing body of the Town, acting as such or, as the context requires, acting as the governing body of the Enterprise. “Bond Counsel” means (a) as of the date of issuance of the Bonds, Kutak Rock LLP; and (b) as of any other date, Kutak Rock LLP or such other attorneys selected by the Town with nationally recognized expertise in the issuance of municipal bonds. “Bond Details Certificate” means a certificate executed by the Mayor, the Town Administrator or the Finance Officer of the Town, dated on or before the date of delivery of the Bonds to the Underwriter, setting forth (a) the rate or rates of interest on the Bonds, (b) the conditions and prices at which the Bonds may be redeemed before the maturities thereof, (c) the existence and amount of capitalized interest or reserve funds related to each series of the Bonds, (d) the price at which each series of the Bonds will be sold to the Underwriter, (e) the total principal amount of each series of the Bonds, (f) the amount of principal maturing in each year for each series of the Bonds, and (g) the dates on which principal and interest shall be paid, as authorized by the Supplemental Act and this Ordinance, all of which shall be subject to the parameters and restrictions contained in this Ordinance. “Bond Year” means the 12 months commencing on the second day of November in a given year and ending on the first day of November in the next succeeding calendar year. “Code” means the Internal Revenue Code of 1986, as amended, and the regulations promulgated or existing thereunder. “Combined Maximum Annual Debt Service Requirements” means, as of any date of calculation, the sum of the maximum annual payments of principal of and interest on the Bonds and all issues of Parity Bonds for which the computation is being made. “Commercial Bank” means a state or national bank or trust company which is a member of the Federal Deposit Insurance Corporation and of the Federal Reserve System, which has capital and surplus of $10,000,000 or more and which is located within the United States of America. “Communications Facilities” means internet access equipment and fiber installation and connections in order to provide residential and commercial broadband 200 5 4844-4843-7663.3 internet service, residential and commercial voice over internet protocol telephone service, and managed in-house WiFi service. “Comparable Bond Year” means, in connection with any Fiscal Year, the Bond Year which ends in such Fiscal Year. For example, for the Fiscal Year commencing on January 1, 2020, the Comparable Bond Year ends in 2020 on November 1. “Continuing Disclosure Agreement” means the Continuing Disclosure Undertaking, in substantially the form filed with the Board at the time of introduction of this Ordinance, to be executed by the Town, acting by and through the Enterprise, and dated the date of issuance and delivery of the Bonds. “Cost of the Project” means all or any part of the cost of Acquisition, Improvement and Equipment of all or any part of the Project, including, without limitation: (i) All preliminary expenses or other costs, including without limitation working capital costs, monies expended, advanced or loaned by the Town or the Enterprise or advanced by the Federal Government, the State or by any other Person from any source, with the approval of the Board, or any combination thereof, or otherwise; (ii) The costs of making surveys and tests, audits, preliminary plans, other plans, specifications, estimates of costs and other preliminaries; (iii) The costs of contingencies; (iv) The costs of premiums on any builders’ risk insurance and performance bonds during the construction, installation and other acquisition of the Project, or a reasonably allocated share thereof; (v) The costs of appraising, printing, estimates, advice, inspection, other services of engineers, architects, accountants, financial consultants, attorneys at law, clerical help and other agents and employees; (vi) The costs of making, publishing, posting, mailing and otherwise giving any notice in connection with the Project and the issuance of the Bonds; (vii) All costs and expenses of issuing the Bonds including, without limitation, fees of the Paying Agent, Bond Counsel, counsel to the Underwriter, counsel to the Town or the Enterprise, municipal or financial advisors, rating agencies and printers to the extent not defrayed as an Operation and Maintenance Expense; (viii) The costs of the filing or recording of instruments and the cost of any title insurance premiums; 201 6 4844-4843-7663.3 (ix) The costs of funding any construction loans and other temporary loans pertaining to the Project and of the incidental expenses incurred in connection with such loans; (x) The costs of demolishing, removing, or relocating any buildings, structures, or other facilities on land acquired for the Project, and of acquiring lands to which such buildings, structures or other facilities may be moved or relocated; (xi) The costs of machinery and equipment; (xii) The costs of any properties, rights, easements or other interests in properties, or any licenses, privileges, agreements and franchises; (xiii) The payment of the premium for any Reserve Fund Insurance Policy to be deposited in the 2019A Debt Service Reserve Account or the 2019B Debt Service Reserve Account, if any; (xiv) The costs of labor, material and obligations incurred to contractors, builders and materialmen in connection with the acquisition and construction of the Project; (xv) The costs of amending any ordinance or other instrument pertaining to the Bonds or otherwise to the Light and Power Facilities or the Communications Facilities; and (xvi) All other costs and expenses pertaining to the Project, including any costs and expenditures required by law. “C.R.S.” means Colorado Revised Statutes, as amended. “Debt Service Requirements” means, for any period, the principal of, and interest on, and any premium due in connection with the redemption of the Bonds, any Parity Bonds, or any other securities payable from the Pledged Revenues, excluding any amounts actually on hand and irrevocably committed to the payment of Debt Service Requirements. “Enterprise” means the Power and Communications Enterprise (fka the Light and Power Enterprise) formally established by Ordinance No. 7-99 of the Town on September 28, 1999, and reconstituted and renamed as the Power and Communications Enterprise by Ordinance No. 2-19 of the Town on March 12, 2019. “Equip” or “Equipment” means the design, manufacture, purchase, lease or installation or replacement of items of equipment, machinery, tools, software, hardware and related property and fixtures installed or used in the operation of the Light and Power Facilities, the Communications Facilities, other property, any project, or any interest therein. 202 7 4844-4843-7663.3 “Event of Default” means any one of the events described in Section 48 hereof. “Excess Investment Earnings Account” means the special account established by Section 12 hereof. “Federal Securities” means bills, certificates of indebtedness, notes, or bonds which are direct obligations of, or the principal of and interest on which obligations are unconditionally guaranteed by, the United States of America. “Finance Officer” means the Director of Finance of the Town. “Fiscal Year” means the 12 months commencing on the first day of January of any calendar year and ending on the last day of December of such calendar year or such other 12-month period as may from time-to-time be designated by the Board or by State statute as the Fiscal Year of the Town. “Improve” or “Improvement” means the addition, extension, enlargement, betterment, replacement or improvement or any combination thereof, of the Light and Power Facilities, the Communications Facilities, other property, any project, or any interest therein. “Interest Payment Date” means May 1 and November 1, as determined in the Bond Details Certificate. “Letter of Instructions” means the Letter of Instructions appended to or made a part of the Tax Compliance Certificate for the 2019A Bonds, dated the date of issuance of the 2019A Bonds, and delivered by Bond Counsel to the Town, including any amendments thereto. “Light and Power Facilities” means all light and power facilities of the Town used in providing electric power to customers, including but not limited to substations, distribution, fiber optic smart grid communications facilities, and any light and power facilities added from time-to-time by the Town. “Maximum Annual Debt Service Requirements” means, as of any date of calculation, with respect to the Bonds or any issue of Parity Bonds for which the computation is being made, the largest amount of Debt Service Requirements coming due in any single Bond Year when such Bonds or Parity Bonds are Outstanding. “Operation and Maintenance Account” means the special account established in Section 12 hereof. “Operation and Maintenance Expenses” means such reasonable and necessary current expenses of the Enterprise, paid or accrued, of operating, maintaining and repairing the Light and Power Facilities and Communications Facilities as may be determined by the Board. The term may include, at the option of the Board, except as limited by contract or otherwise limited by law, without limiting the generality of the foregoing: 203 8 4844-4843-7663.3 (a) engineering, auditing, legal and other overhead expenses directly related and reasonably allocable to the administration, operation and maintenance of the Light and Power Facilities or the Communications Facilities; (b) insurance and surety bond premiums appertaining to the Light and Power Facilities or the Communications Facilities; (c) the reasonable charges of any paying agent, registrar, transfer agent, depository or escrow bank appertaining to the Light and Power Facilities or the Communications Facilities or any bonds or other securities issued therefor; (d) annual payments to pension, retirement, health and hospitalization funds appertaining to the Light and Power Facilities or the Communications Facilities; (e) any taxes, assessments, franchise fees or other charges or payments in lieu of the foregoing; (f) ordinary and current rentals of equipment or other property under any operating leases and rentals with respect to capital leases; (g) contractual services, professional services, salaries, administrative expenses, and costs of labor appertaining to the Light and Power Facilities or the Communications Facilities and the cost of materials and supplies used for current operation or routine maintenance and repair of the Light and Power Facilities or the Communications Facilities; (h) repairs and replacements of equipment and other parts of the Light and Power Facilities or the Communications Facilities necessary to maintain the revenue producing capacity thereof; (i) the costs incurred in the billing and collection of all or any part of the Revenue; (j) all costs to purchase power and any costs of utility services furnished to the Light and Power Facilities; (k) reasonable indirect administrative costs incurred for the benefit of the Light and Power Facilities or the Communications Facilities; (l) costs of any professional services related to the calculation, payment or application for refund of arbitrage rebate; and (m) any other such expenses considered in determining the amount of fees and charges imposed to cover costs of operation and maintenance of the Light and Power Facilities or the Communications Facilities. 204 9 4844-4843-7663.3 Except as expressly provided herein, “Operation and Maintenance Expenses” does not include: (a) any allowance for depreciation; (b) any costs of Improvement, extensions or betterments; (c) any accumulation of reserves for capital replacements; (d) any accumulation of reserves for operation, maintenance or repair of the Light and Power Facilities or the Communications Facilities; (e) any allowance for the redemption of any bonds or other securities or the payment of any interest thereon; (f) any liabilities incurred in the Acquisition of any properties comprising the Light and Power Facilities or the Communications Facilities or any existing properties comprising the Light and Power Facilities or the Communications Facilities or any combination thereof; (g) any other ground of legal liability not based on contract; or (h) any annual transfer of surplus Pledged Revenues from the Power and Communications Enterprise Fund to the General Fund pursuant to Section 12(i) hereof. “Ordinance” means, this Ordinance authorizing the issuance of the Bonds, including any amendment hereto. “Outstanding” means, as of any particular date, the Bonds, Parity Bonds or any such other securities payable in whole or in part from the Pledged Revenues which have been duly authorized, executed and delivered, except the following: (a) any Bond, Parity Bond or other security canceled by the Paying Agent or otherwise on behalf of the Town on or before such date; (b) any Bond, Parity Bond or other security held by or on behalf of the Town; (c) any Bond, Parity Bond or other security for the payment or the redemption of which moneys or Federal Securities sufficient (including the known minimum yield available for such purpose from Federal Securities in which such amount wholly or in part may be initially invested) to pay all of the Debt Service Requirements of such Bond, Parity Bond or other security to the maturity date or specified Redemption Date thereof shall have theretofore been deposited in escrow or in trust with a Trust Bank for that purpose; and 205 10 4844-4843-7663.3 (d) any Bond, Parity Bond or other security in lieu of or in substitution for which another Bond, Parity Bond or other security shall have been executed and delivered. “Owner” means the holder of any bearer instrument or registered owner of any registered instrument. “Parity Bonds” means bonds, notes, securities or other obligations payable in whole or in part from the Pledged Revenues and having a lien thereon on a parity with the lien thereon of the Bonds and issued in accordance with the requirements of this Ordinance. “Paying Agency Agreement” means the Registration and Paying Agency Agreement, between the Town, acting by and through the Enterprise, and the Registrar and Paying Agent. “Paying Agent” means UMB Bank, n.a., or its successor, which shall perform the function of paying agent with respect to the Bonds. “Permitted Investments” means any investment which, as of the time made, is permitted by the laws of the State for moneys of the Town and the policies of the Town pertaining to Town investments to be made with Town funds; provided that such investment must be rated at least investment grade by Standard & Poor’s Ratings Services. “Person” means any individual, firm, partnership, corporation, company, association, joint stock association, limited liability company or body politic or any trustee, receiver, assignee or similar representative thereof. “Pledged Revenues” means all Revenue remaining after the deduction of Operation and Maintenance Expenses. “Policy Costs” means the repayment of draws and payment of expenses and accrued interest thereon to any insurance company that has issued a Reserve Fund Insurance Policy or similar instrument for the 2019A Debt Service Reserve Account or the 2019B Debt Service Reserve Account. “Power and Communications Enterprise Fund” means the enterprise fund of the Town used to account for revenues and expenditures of the Enterprise. “Project” means (i) the completion of the smart grid system for the Light and Power Facilities, (ii) the Acquisition, Improvement and Equipment of Communications Facilities for a fiber-to-premises broadband network to residential and commercial customers within the service area of the Light and Power Facilities, and (iii) any other Improvement to the Light and Power Facilities deemed necessary or desirable by the Board. 206 11 4844-4843-7663.3 “Record Date” means the fifteenth day of the calendar month next preceding an Interest Payment Date for the Bonds. “Redemption Date” means the date fixed for the redemption prior to maturity of any Bond or other designated securities payable from the Pledged Revenues in any notice of prior redemption given by or on behalf of the Town, acting by and through the Enterprise. “Registrar” means UMB Bank, n.a., or its successors and assigns, which shall perform the function of bond registrar with respect to the Bonds. “Reserve Fund Insurance Policy” means any insurance policy, surety bond, irrevocable letter of credit or similar instrument deposited in or credited to the 2019A Debt Service Reserve Account or the 2019B Debt Service Reserve Account in lieu of moneys on deposit therein. “Revenue” means all income from the rates, fees and charges imposed by the Town for the Light and Power Facilities and services, and the Communications Facilities and services, together with all interest income of the Power and Communications Enterprise Fund; provided however, that no retained earnings shall ever be included as Revenue. “State” means the State of Colorado. “Subordinate Bonds” or “Subordinate Securities” means bonds or securities payable from the Pledged Revenues having a lien thereon subordinate or junior to the lien thereon of the Bonds. “Superior Bonds” or “Superior Securities” means bonds or securities payable from the Pledged Revenues having a lien thereon superior or senior to the lien thereon of the Bonds. “Supplemental Act” means the Supplemental Public Securities Act, constituting part 2 of article 57 of title 11, C.R.S. “Tax Compliance Certificate” means the Tax Compliance Certificate signed by the Town, acting by and through the Enterprise, relating to the application of the requirements of Sections 103 and 141-150 of the Code to the 2019A Bonds. “Town” means the Town of Estes Park, Colorado, acting as such or, as the context requires, acting by and through, and as the operator of, the Enterprise. “Trust Bank” means a Commercial Bank which is authorized to exercise and is exercising trust powers. “2019A Bonds” means the Town of Estes Park, Colorado, acting by and through its Power and Communications Enterprise, Refunding and Improvement Power and Communications Revenue Bonds, Series 2019A, authorized by this Ordinance. 207 12 4844-4843-7663.3 “2019B Bonds” means the Town of Estes Park, Colorado, acting by and through its Power and Communications Enterprise, Power and Communications Revenue Bonds, Taxable Series 2019B, authorized by this Ordinance. “2019A Debt Service Reserve Account” means the special account created and referred to in Section 12 hereof. “2019B Debt Service Reserve Account” means the special account created and referred to in Section 12 hereof. “2019A Principal and Interest Account” means the special account established in Section 12 hereof. “2019B Principal and Interest Account” means the special account established in Section 12 hereof. “2019A Project Account” means the special account created and referred to in Section 12 hereof. “2019B Project Account” means the special account created and referred to in Section 12 hereof. Section 2. Construction. This Ordinance, except where the context by clear implication herein otherwise requires, shall be construed as follows: (a) words in the singular include the plural, and words in the plural include the singular; (b) words in the masculine gender include the feminine and the neuter, and when the sense so indicates words of the neuter gender refer to any gender; (c) sections, paragraphs and clauses mentioned by number, letter, or otherwise, correspond to the respective sections, paragraphs and clauses of this Ordinance so numbered or otherwise so designated; and (d) the headings applied to sections and paragraphs of this Ordinance are inserted only as a matter of convenience and ease of reference and in no way define or limit the scope or intent of any provisions of this Ordinance. Section 3. Authorization. The 2019A Bonds, payable as to all Debt Service Requirements solely out of the Pledged Revenues, are hereby authorized to be issued in the aggregate principal amount not to exceed $27,000,000 in accordance with the Colorado Constitution, particularly Article X, Section 20 thereof, Title 31, Article 15, Parts 3 and 7, C.R.S., Title 30, Article 20, Part 3, C.R.S., Title 29, Article 27, C.R.S., Title 11, Article 56, C.R.S., and all other laws thereunto appertaining; and the 2019B Bonds, payable as to all Debt Service Requirements solely out of the Pledged Revenues, are hereby authorized to be issued in the aggregate principal amount not to exceed $8,000,000 in accordance with the Colorado Constitution, particularly Article X, 208 13 4844-4843-7663.3 Section 20 thereof, Title 31, Article 15, Parts 3 and 7, C.R.S., Title 30, Article 20, Part 3, C.R.S., Title 29, Article 27, C.R.S., and all other laws thereunto appertaining. The Board elects to apply all of the provisions of the Supplemental Act to the issuance of the Bonds. Section 4. Bond Details. The Bonds of each series shall be issued in fully registered form in denominations of $5,000 and any integral multiple thereof (provided that no Bond may be in a denomination which exceeds the principal coming due on its maturity date, and no individual Bond may be issued to mature on more than one maturity date). The Bonds of each series shall be dated as of their date of registration and authentication by the Paying Agent. Bonds of each series authenticated prior to the first interest payment date, as determined in the Bond Details Certificate, shall bear interest from their date of original issuance, as determined in the Bond Details Certificate. Bonds of each series authenticated on the first interest payment date, as determined in the Bond Details Certificate, shall bear interest from that date, and Bonds of each series authenticated on any later date, shall bear interest from the May 1 or November 1 next preceding their date of authentication, or if authenticated on a May 1 or November 1, shall bear interest from that date; provided, however, that if interest on a series of the Bonds shall be in default, Bonds of that series issued in exchange for Bonds of that series surrendered for transfer or exchange shall be dated and bear interest as of the date to which interest has been paid in full on the Bonds of that series so surrendered. The Bonds of each series shall bear interest until their respective maturities or prior redemption, such interest being payable semiannually on May 1 and November 1 in each year, as provided in the Bond Details Certificate. Pursuant to Section 11-57-205 of the Supplemental Act, the Board hereby delegates to the Mayor, the Town Administrator or the Finance Officer of the Town the authority to determine, upon advice from the Municipal Advisor, the details of each series of the Bonds identified in the definition of Bond Details Certificate in Section 1 of this Ordinance and the authority to sign the Bond Purchase Agreement, upon advice from the Municipal Advisor. The execution of the Bond Purchase Agreement shall signify the acceptance by the Town, acting by and through the Enterprise, of the proposal of the Underwriter with respect to the purchase of the portion of the 2019A Bonds being issued to refund the Refunded Bonds and the proposal of the Underwriter with respect to the purchase of the 2019B Bonds and the portion of the 2019A Bonds being issued to finance the Project. The Bonds of each series shall bear interest at the rate or rates determined by the Mayor, the Town Administrator or the Finance Officer of the Town in the Bond Details Certificate, calculated on the basis of a 360 day year consisting of twelve 30 day months; provided, however, that the net effective interest rate of the portion of the 2019A Bonds attributable to the current refunding of the Refunded Bonds shall not exceed 3.870% and the net effective interest rate of the portion of the 2019A Bonds attributable to financing the Project shall not exceed 4.00%. The 2019A Bonds shall mature no later than November 1, 2039, and on November 1 in the years and in the principal amounts determined by the Mayor, the Town Administrator or the Finance 209 14 4844-4843-7663.3 Officer of the Town in the Bond Details Certificate. The Maximum Annual Debt Service Requirements for the 2019A Bonds shall not exceed $2,750,000. The net effective interest rate of the 2019B Bonds shall not exceed 3.45%. The 2019B Bonds shall mature no later than November 1, 2031 and on November 1 in the years and in the principal amounts determined by the Mayor, the Town Administrator or the Finance Officer of the Town in the Bond Details Certificate. The Maximum Annual Debt Service Requirements for the 2019B Bonds shall not exceed $2,500,000. Section 5. Book Entry. Each series of the Bonds initially shall be issued in the name of Cede & Co., as nominee of The Depository Trust Company, New York, New York (“DTC”), as registered owner of each series of the Bonds, and immobilized in the custody of DTC. A single certificate for each maturity date or for each interest rate for each maturity date of the 2019A Bonds and the 2019B Bonds will be issued and delivered to DTC. Beneficial owners of the Bonds will not receive physical delivery of Bond certificates, except in the event that replacements are issued therefor as provided in the Paying Agency Agreement. All subsequent transfers of ownership interests, after immobilization of the original Bond certificates as provided above, will be made by book entry only, and no investor or other party purchasing, selling or otherwise transferring Bonds is to receive, hold or deliver any Bond certificate as long as DTC or any successor depository holds the immobilized Bond certificates. The Mayor and all other members of the Board and the Town Administrator and the Finance Officer of the Town are hereby authorized to take any and all actions as may be necessary and not inconsistent with this Ordinance in order to qualify each series of the Bonds for DTC’s book entry system, including the execution of DTC’s Blanket Letter of Representations, and payments to DTC by the Paying Agent shall be made in accordance with such Letter of Representations. Section 6. Payment of Bonds; Paying Agent and Registrar. The principal of, premium, if any, and interest on the Bonds shall be payable in lawful money of the United States of America, without deduction for exchange or collection charges. The principal of and premium, if any, on each Bond shall be payable upon surrender thereof at the principal corporate trust operations office of the Paying Agent or at the principal corporate trust operations office of any successor Paying Agent appointed by the Town, acting by and through the Enterprise. Interest on each Bond shall be paid by the Paying Agent on behalf of the Town, acting by and through the Enterprise, to the Owner thereof by check or draft mailed to such Owner at the address of such Owner as it appears on the registration books of the Town, acting by and through the Enterprise, maintained by the Registrar, or by wire transfer as described in the Paying Agency Agreement. In the event that the date upon which any payment of interest on or principal of the Bonds shall be due is not a Business Day (as defined in the Paying Agency Agreement) then such interest or principal (or both, as the case may be) shall be payable on the next succeeding Business Day without additional interest. The Town, acting by and through the Enterprise, shall cause, pursuant to the Paying Agency Agreement, books for the registration and for the transfer of Bonds to be kept by the Paying Agent. UMB Bank, n.a., is hereby constituted and appointed the 210 15 4844-4843-7663.3 Paying Agent and Registrar of the Town, acting by and through the Enterprise, with respect to the Bonds; however, the Town, acting by and through the Enterprise, may, in its discretion, appoint any one or more successor or additional Paying Agents and Registrars for the Bonds in accordance with the Paying Agency Agreement. The Bonds shall be subject to registration, transfer and exchange in the manner, and subject to the terms and conditions, set forth in the Paying Agency Agreement. Section 7. Prior Redemption. The 2019A Bonds or any part thereof may be callable for redemption, at the option of the Town, acting by and through the Enterprise, prior to the final maturity thereof, at the price or prices (expressed as a percentage of the principal amount) and on the redemption date or dates as determined by the Mayor, the Town Administrator or the Finance Officer of the Town in the Bond Details Certificate. The 2019A Bonds or any part thereof may be callable for mandatory sinking fund redemption at a price (expressed as a percentage of principal amount) of 100%, plus accrued interest to the redemption date, as determined by the Mayor, the Town Administrator or the Finance Officer of the Town in the Bond Details Certificate. The 2019B Bonds or any part thereof may be callable for redemption, at the option of the Town, acting by and through the Enterprise, prior to the final maturity thereof, at the price or prices (expressed as a percentage of the principal amount) and on the redemption date or dates as determined by the Mayor, the Town Administrator or the Finance Officer of the Town in the Bond Details Certificate. The 2019B Bonds or any part thereof may be callable for mandatory sinking fund redemption at a price (expressed as a percentage of principal amount) of 100%, plus accrued interest to the redemption date, as determined by the Mayor, the Town Administrator or the Finance Officer of the Town in the Bond Details Certificate. If less than all of the 2019A Bonds or 2019B Bonds, as the case may be, within a maturity are to be redeemed on any prior redemption date, the 2019A Bonds or 2019B Bonds, as the case may be, to be redeemed shall be selected by lot prior to the date fixed for redemption, in such manner as the Paying Agent shall determine. The Bonds shall be redeemed only in integral multiples of $5,000. In the event a Bond is of a denomination larger than $5,000, a portion of such Bond may be redeemed, but only in the principal amount of $5,000 or any integral multiple thereof. Such Bond shall be treated for the purpose of redemption as that number of Bonds which results from dividing the principal amount of such Bond by $5,000. In the event a portion of any Bond is redeemed, the Paying Agent shall, without charge to the Owner of such Bond, authenticate and deliver a replacement Bond or Bonds for the unredeemed portion thereof. Notice of any redemption of the 2019A Bonds or the 2019B Bonds, as the case may be, shall be given by the Paying Agent in the name of the Town, acting by and through the Enterprise, by mailing a copy of the redemption notice by first-class mail to the Owners of the 2019A Bonds or the 2019B Bonds, as the case may be, to be redeemed at the addresses of such Owners shown on the registration books maintained by the Paying Agent pursuant to the Paying Agency Agreement or by electronic means to DTC or its successors, not more than 60 nor less than 30 days prior to the 211 16 4844-4843-7663.3 redemption date. Failure to mail notice to the Owner of any Bond designated for redemption, or any defect in any notice given, shall not affect the validity of any proceedings for the redemption of the 2019A Bonds or the 2019B Bonds, as the case may be, as to which no such failure shall have occurred. Any notice sent as provided herein shall be conclusively presumed to have been duly given, whether or not the Owner actually receives the notice. Each notice of redemption shall specify the date fixed for redemption, the redemption price, the place or places of payment, that payment will be made upon presentation and surrender of the 2019A Bonds or the 2019B Bonds, as the case may be, to be redeemed, that interest accrued to the date fixed for redemption will be paid as specified in said notice, and that on and after said date interest thereon will cease to accrue. If less than all the outstanding 2019A Bonds or the 2019B Bonds, as the case may be, are to be redeemed, the notice of redemption shall specify the numbers of the 2019A Bonds or the 2019B Bonds, as the case may be (or portions of 2019A Bonds or 2019B Bonds, as the case may be, issued in a principal amount in excess of $5,000) to be redeemed. On or prior to the date fixed for redemption, funds sufficient to pay the 2019A Bonds or the 2019B Bonds, as the case may be, or portions of the 2019A Bonds or the 2019B Bonds, as the case may be, called for redemption, together with the premium, if any, and the accrued interest to the redemption date, are to be deposited with the Paying Agent. The giving of notice and the deposit of funds for redemption shall cause interest on any Bond or portion thereof called for redemption to cease to accrue from and after the date fixed for redemption. In addition to the foregoing notice, further notice may be given by the Paying Agent in order to comply with the requirements of any depository holding the Bonds but no defect in said further notice nor any failure to give all or any portion of such further notice shall in any manner defeat the effectiveness of a call for redemption if notice thereof is given as above prescribed. Section 8. Forms of the 2019A Bonds and the 2019B Bonds. Each series of the Bonds shall be signed with the manual or facsimile signature of the Mayor of the Town, sealed with a facsimile or manual impression of the seal of the Town, and attested by the manual or facsimile signature of the Town Clerk. Should any officer whose manual or facsimile signature appears on any Bond cease to be such officer before delivery of the Bonds, such manual or facsimile signature shall nevertheless be valid and sufficient for all purposes. The 2019A Bonds shall be in substantially the following form: 212 17 4844-4843-7663.3 (Form of Series 2019A Bond] UNITED STATES OF AMERICA STATE OF COLORADO COUNTY OF LARIMER TOWN OF ESTES PARK, COLORADO acting by and through its POWER AND COMMUNICATIONS ENTERPRISE REFUNDING AND IMPROVEMENT POWER AND COMMUNICATIONS REVENUE BOND SERIES 2019A No. R-______ $__________ Interest rate Maturity date Original Issue Date CUSIP _____% November 1, ____ __________, 2019 _____________ REGISTERED OWNER: Cede & Co. PRINCIPAL AMOUNT: DOLLARS The Town of Estes Park, Colorado (the “Town”), acting by and through its Power and Communications Enterprise (the “Enterprise”), for value received, hereby promises to pay, solely out of the special accounts hereinafter designated but not otherwise, to the Registered Owner (named above), or registered assigns, on the Maturity Date (specified above) or on the date of prior redemption, the Principal Amount (specified above). In like manner the Town, acting by and through the Enterprise, promises to pay interest on such Principal Amount (computed on the basis of a 360 day year of twelve 30-day months) from the interest payment date next preceding the date of registration and authentication of this 2019A Bond, unless this 2019A Bond is registered and authenticated prior to * , in which event this 2019A Bond shall bear interest from * 2019, at the Interest Rate per annum specified above, payable semiannually on May 1 and November 1 each year, commencing on * , until the Principal Amount hereof is paid at maturity or upon prior redemption. The principal of this 2019A Bond is payable in lawful money of the United States of America to the Registered Owner hereof upon maturity or prior redemption * To be determined by Mayor, Town Administrator or Town Finance Officer. 213 18 4844-4843-7663.3 and presentation and surrender hereof at the principal corporate trust operations office of UMB Bank, n.a., in Kansas City, Missouri, or its successor, as Paying Agent. Payment of each installment of interest hereon shall be made to the Registered Owner hereof whose name shall appear on the registration books of the Town, acting by and through the Enterprise, maintained by UMB Bank, n.a., in Denver, Colorado, or its successor as Registrar, at the close of business on the fifteenth day of the calendar month next preceding each interest payment date (the “Record Date”), and shall be paid by check or draft of the Paying Agent mailed on or before the interest payment date to such Registered Owner at his or her address as it appears on such registration books. The Paying Agent may make payments of interest on any 2019A Bond by such alternative means as may be mutually agreed to between the registered owner of such 2019A Bond and the Paying Agent, as provided in the ordinance authorizing the issuance of this 2019A Bond (the “Bond Ordinance”). Any such interest not so timely paid or duly provided for shall cease to be payable to the person who is the Registered Owner hereof at the close of business on the Record Date and shall be payable to the person who is the Registered Owner hereof at the close of business on a Special Record Date (the “Special Record Date”) established for the payment of any defaulted interest. Notice of the Special Record Date and the date fixed for the payment of defaulted interest shall be given by first-class mail to the Registered Owner hereof as shown on the registration books on a date selected by the Registrar. If the date for making any payment or performing any action shall be a legal holiday or a day on which the principal corporate trust operations office of the Paying Agent or Registrar is authorized or required by law to remain closed, such payment may be made or act performed on the next succeeding day which is not a legal holiday or a day on which the principal corporate trust operations office of the Paying Agent or Registrar is authorized or required by law to remain closed. This Bond is one of a series of Refunding and Improvement Power and Communications Revenue Bonds, Series 2019A, issued in the aggregate principal amount of $ * (the “2019A Bonds”), all of like date, tenor, and effect except as to number, principal amount, interest rate, and date of maturity, issued by the Town of Estes Park, Colorado, acting by and through its Power and Communications Enterprise (the “Enterprise”), for the purpose of (i) financing the completion of the smart grid system for the Light and Power Facilities (as defined in the Bond Ordinance) and the installation of Communications Facilities (as defined in the Bond Ordinance) for a fiber- to-premises broadband network, and (ii) refunding the remaining outstanding Light and Power Revenue Bonds, Series 2007, issued by the Town, acting by and through the Enterprise (fka the Light and Power Enterprise). This 2019A Bond is issued under the authority of and in full conformity with the Constitution of the State of Colorado; Title 31 Article 15, Parts 3 and 7, C.R.S., Title 30, Article 20, Part 3, C.R.S., Title 29, Article 27, C.R.S., Title 11, Article 56, C.R.S., and all other laws of the State of Colorado thereunto enabling; the Supplemental Public Securities Act, part 2 of article 57 of title 11, C.R.S.; and pursuant to the Bond Ordinance. Pursuant to § 11-57-210, C.R.S., such recital * To be determined by Mayor, Town Administrator or Town Finance Officer. 214 19 4844-4843-7663.3 shall conclusively impart full compliance with all of the provisions of the Supplemental Public Securities Act, and this 2019A Bond issued containing such recital is conclusive evidence of the validity and regularity of the issuance of this 2019A Bond after its delivery for value. It is hereby recited, certified and warranted that all of the requirements of law have been fully complied with by the proper officers in issuing this 2019A Bond. Simultaneously with the issuance of this 2019A Bond, there are also being issued a series of Power and Communications Revenue Bonds, Taxable Series 2019B in the aggregate principal amount of $ * (the “2019B Bonds”) under the Bond Ordinance, on a parity with the 2019A Bonds. The 2019A Bonds and the 2019B Bonds are collectively referred to herein as the “Bonds.” Payment of the principal of and interest on this 2019A Bond is to be made solely from, and as security for such payment there are irrevocably (but not necessarily exclusively) pledged, pursuant to the Bond Ordinance, two special accounts, thereby identified as the 2019A Principal and Interest Account and the 2019A Debt Service Reserve Account, into which the Town, acting by and through the Enterprise, has covenanted in the Bond Ordinance to pay, from certain revenues derived from the operation and use of and otherwise pertaining to the Light and Power Facilities and the Communications Facilities of the Town (the “Revenue” as defined in the Bond Ordinance) after provision is made only for the payment of all necessary and reasonable current expenses of operating, maintaining and repairing the Light and Power Facilities and the Communications Facilities (such remaining revenues being referred to as the “Pledged Revenues”), sums sufficient to pay when due the principal of and interest on the Bonds and any parity securities payable from such revenues. The Bonds are equally and ratably secured by a lien on the Pledged Revenues, and the Bonds constitute an irrevocable and first lien (but not necessarily an exclusive first lien) thereon. In addition, obligations in addition to the Bonds, subject to expressed conditions, may be issued and made payable from the Pledged Revenues having a lien thereon subordinate and junior to the lien thereon of the Bonds, or subject to additional expressed conditions, having a lien thereon on a parity with the lien thereon of the Bonds, as provided in the Bond Ordinance. THIS 2019A BOND IS A SPECIAL, LIMITED OBLIGATION PAYABLE SOLELY OUT OF AND SECURED BY AN IRREVOCABLE AND FIRST LIEN (BUT NOT NECESSARILY AN EXCLUSIVE FIRST LIEN) ON THE PLEDGED REVENUES, AS MORE SPECIFICALLY PROVIDED IN THE BOND ORDINANCE. THIS 2019A BOND DOES NOT CONSTITUTE A DEBT OR AN INDEBTEDNESS OF THE TOWN WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY PROVISION OR LIMITATION. THIS 2019A BOND IS NOT PAYABLE IN WHOLE OR IN PART FROM THE PROCEEDS OF GENERAL PROPERTY TAXES OR ANY OTHER FORM OF TAXATION, AND THE FULL FAITH AND CREDIT OF THE TOWN IS NOT * To be determined by Mayor, Town Administrator or Town Finance Officer 215 20 4844-4843-7663.3 PLEDGED FOR THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THIS 2019A BOND. It is hereby recited, certified and warranted that for the payment of the principal of and interest on this 2019A Bond, the Town, acting by and through the Enterprise, has created and will maintain said special accounts and will deposit the Pledged Revenues therein, and out of said special accounts, as an irrevocable charge thereon, will pay the principal of and interest on this 2019A Bond in the manner provided by the Bond Ordinance. Reference is made to the Bond Ordinance, and to any and all modifications and amendments thereof, for an additional description of the provisions, terms and conditions upon which the Bonds are issued and secured, including, without limitation, the nature and extent of the security for the Bonds, provisions with respect to the custody and application of the proceeds of the Bonds, the collection and disposition of the revenues and moneys charged with and pledged to the payment of the principal of and interest on the Bonds, a description of the special funds referred to above and the nature and extent of the security and pledge afforded thereby for the payment of the principal of and interest on this 2019A Bond, and the manner of enforcement of said pledge, as well as the rights, duties, immunities and obligations of the Town, acting by and though the Enterprise, and also the rights and remedies of the registered owners of the Bonds. To the extent and in the respects permitted by the Bond Ordinance, the provisions of the Bond Ordinance, or any instrument amendatory thereof or supplemental thereto, may be modified or amended by action of the Board of Trustees of the Town, acting as the governing body of the Enterprise, taken in the manner and subject to the conditions and exceptions provided in the Bond Ordinance. The pledge of revenues and other obligations of the Town, acting by and through the Enterprise, under the Bond Ordinance may be discharged at or prior to the maturity or prior redemption of the Bonds upon the making of provision for the payment of the Bonds on the terms and conditions set forth in the Bond Ordinance. The 2019A Bonds maturing on or before * are not subject to redemption prior to maturity. The 2019A Bonds maturing on and after * , are subject to redemption prior to maturity, at the option of the Town, acting by and through the Enterprise, in whole or in part, in any order of maturity and in whole or partial maturities, on * , and on any date thereafter, at the redemption price (expressed as a percentage of the principal amount) of * %, plus accrued interest to the redemption date. The 2019A Bonds will be redeemed only in integral multiples of $5,000. In the event a Bond is of a denomination larger than $5,000, a portion of such Bond may be redeemed, but only in the principal amount of $5,000 or any integral multiple thereof. Such Bond will be treated for the purposes of redemption as that number of Bonds * To be determined by Mayor, Town Administrator or Town Finance Officer. 216 21 4844-4843-7663.3 which results from dividing the principal amount of such Bond by $5,000. In the event a portion of this 2019A Bond is redeemed, the Registrar shall, without charge to the Registered Owner of this 2019A Bond, authenticate and deliver a replacement 2019A Bond or 2019A Bonds for the unredeemed portion. Notice of prior redemption shall be given by mailing a copy of the redemption notice, not more than 60 days and not less than thirty (30) days prior to the date fixed for redemption, to the Registered Owner of this 2019A Bond at the address shown on the registration books maintained by the Registrar or by electronic means to DTC or its successors, in the manner set forth in the Bond Ordinance. All 2019A Bonds called for redemption will cease to bear interest after the specified redemption date, provided funds for their redemption are on deposit at the place of payment at that time. The Town, acting by and through the Enterprise, and Registrar shall not be required (a) to issue, register, transfer or exchange any 2019A Bond during a period beginning at the opening of business on the Record Date immediately preceding any interest payment date or on any date of selection of 2019A Bonds to be redeemed prior to their maturity, and ending at the close of business on the interest payment date or date on which the applicable notice of redemption is given, or (b) to register, transfer or exchange any 2019A Bond selected or called for redemption in whole or in part. The Town, acting by and through the Enterprise, the Paying Agent and the Registrar may deem and treat the Registered Owner of this 2019A Bond as the absolute owner hereof for all purposes (whether or not this 2019A Bond shall be overdue), and any notice to the contrary shall not be binding upon the Town, acting by and through the Enterprise, the Paying Agent or the Registrar. This 2019A Bond may be exchanged at the principal corporate trust operations office of the Registrar for a like aggregate principal amount of 2019A Bonds of the same maturity of other authorized denominations. This 2019A Bond is transferable by the Registered Owner hereof in person or by his or her attorney duly authorized in writing, at the principal corporate trust operations office of the Registrar, but only in the manner, subject to the limitations, and upon payment of the charges provided in the Bond Ordinance and upon surrender and cancellation of this 2019A Bond. This 2019A Bond may be transferred upon the registration books upon delivery to the Registrar of this 2019A Bond, accompanied by a written instrument or instruments of transfer in form and with guaranty of signature satisfactory to the Registrar, duly executed by the Registered Owner of this 2019A Bond or his or her attorney-in-fact or legal representative, containing written instructions as to the details of the transfer of this 2019A Bond, along with the social security number or federal employer identification number of such transferee. In the event of the transfer of this 2019A Bond, the Registrar shall enter the transfer of ownership in the registration books and shall authenticate and deliver in the name of the transferee or transferees a new fully registered 2019A Bond or 2019A Bonds of authorized denominations of the same maturity and interest rate for the aggregate principal amount which the Registered Owner is entitled to receive at the earliest practicable time. The Registrar shall charge the Registered Owner of this 2019A Bond for every such transfer or exchange an 217 22 4844-4843-7663.3 amount sufficient to reimburse it for its reasonable fees and for any tax or other governmental charge required to be paid with respect to such transfer or exchange. This 2019A Bond shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the authorizing Bond Ordinance until the Certificate of Authentication hereon shall have been signed by the Registrar. 218 23 4844-4843-7663.3 IN TESTIMONY WHEREOF, the Board of Trustees of the Town, acting as the governing body of the Enterprise, has caused this 2019A Bond to be signed by the manual or facsimile signature of the Mayor of the Town, sealed with an impression or a facsimile of the seal of the Town, and attested by the manual or facsimile signature of the Town Clerk, all as of the date set forth below. TOWN OF ESTES PARK, COLORADO, ACTING BY AND THROUGH ITS POWER AND COMMUNICATIONS ENTERPRISE [SEAL] By Mayor Attested: By Town Clerk 219 24 4844-4843-7663.3 CERTIFICATE OF AUTHENTICATION This 2019A Bond is one of the 2019A Bonds of the issue described in the within mentioned Bond Ordinance. Date of UMB BANK, n.a., as Registrar Authentication: By Authorized Signatory 220 25 4844-4843-7663.3 ASSIGNMENT FOR VALUE RECEIVED, the undersigned sells, assigns, and transfers unto ______________________________________________________________________ ______ SOCIAL SECURITY OR FEDERAL EMPLOYER IDENTIFICATION NUMBER OF ASSIGNEE (Name and Address of Assignee) the within 2019A Bond and does hereby irrevocably constitute and appoint ______________________, attorney, to transfer said 2019A Bond on the books kept for registration thereof with full power of substitution in the premises. Dated: ______________________________ By Name Title NOTICE: The signature to this Assignment must correspond with the name of the Registered Owner as it appears upon the face of the within 2019A Bond in every particular, without, alteration or enlargement or any change whatsoever. Signature of Registered Owner: Signature Guaranteed: (Bank, Trust Company, or Firm) 221 26 4844-4843-7663.3 (End of Form of 2019A Bond) 222 27 4844-4843-7663.3 The 2019B Bonds shall be in substantially the following form: (Form of 2019B Bond] UNITED STATES OF AMERICA STATE OF COLORADO COUNTY OF LARIMER TOWN OF ESTES PARK, COLORADO acting by and through its POWER AND COMMUNICATIONS ENTERPRISE POWER AND COMMUNICATIONS REVENUE BOND TAXABLE SERIES 2019B No. R-______ $__________ Interest rate Maturity date Original Issue Date CUSIP _____% November 1, ____ __________, 2019 _____________ REGISTERED OWNER: Cede & Co. PRINCIPAL AMOUNT: DOLLARS The Town of Estes Park, Colorado (the “Town”), acting by and through its Power and Communications Enterprise (the “Enterprise”), for value received, hereby promises to pay, solely out of the special accounts hereinafter designated but not otherwise, to the Registered Owner (named above), or registered assigns, on the Maturity Date (specified above) or on the date of prior redemption, the Principal Amount (specified above). In like manner the Town, acting by and through the Enterprise, promises to pay interest on such Principal Amount (computed on the basis of a 360 day year of twelve 30-day months) from the interest payment date next preceding the date of registration and authentication of this 2019B Bond, unless this 2019B Bond is registered and authenticated prior to * , in which event this 2019B Bond shall bear interest from * 2019, at the Interest Rate per annum specified above, payable semiannually on May 1 and November 1 each year, commencing on * , until the Principal Amount hereof is paid at maturity or upon prior redemption. The principal of this 2019B Bond is payable in lawful money of the United * To be determined by Mayor, Town Administrator or Town Finance Officer. 223 28 4844-4843-7663.3 States of America to the Registered Owner hereof upon maturity or prior redemption and presentation and surrender hereof at the principal corporate trust operations office of UMB Bank, n.a., in Kansas City, Missouri, or its successor, as Paying Agent. Payment of each installment of interest hereon shall be made to the Registered Owner hereof whose name shall appear on the registration books of the Town, acting by and through the Enterprise, maintained by UMB Bank, n.a., in Denver, Colorado, or its successor as Registrar, at the close of business on the fifteenth day of the calendar month next preceding each interest payment date (the “Record Date”), and shall be paid by check or draft of the Paying Agent mailed on or before the interest payment date to such Registered Owner at his or her address as it appears on such registration books. The Paying Agent may make payments of interest on any 2019B Bond by such alternative means as may be mutually agreed to between the registered owner of such 2019B Bond and the Paying Agent, as provided in the ordinance authorizing the issuance of this 2019B Bond (the “Bond Ordinance”). Any such interest not so timely paid or duly provided for shall cease to be payable to the person who is the Registered Owner hereof at the close of business on the Record Date and shall be payable to the person who is the Registered Owner hereof at the close of business on a Special Record Date (the “Special Record Date”) established for the payment of any defaulted interest. Notice of the Special Record Date and the date fixed for the payment of defaulted interest shall be given by first-class mail to the Registered Owner hereof as shown on the registration books on a date selected by the Registrar. If the date for making any payment or performing any action shall be a legal holiday or a day on which the principal corporate trust operations office of the Paying Agent or Registrar is authorized or required by law to remain closed, such payment may be made or act performed on the next succeeding day which is not a legal holiday or a day on which the principal corporate trust operations office of the Paying Agent or Registrar is authorized or required by law to remain closed. This Bond is one of a series of Power and Communications Revenue Bonds, Taxable Series 2019B, issued in the aggregate principal amount of $ * (the “2019B Bonds”), all of like date, tenor, and effect except as to number, principal amount, interest rate, and date of maturity, issued by the Town of Estes Park, Colorado, acting by and through its Power and Communications Enterprise (the “Enterprise”), for the purpose of (i) financing the completion of the smart grid system for the Light and Power Facilities (as defined in the Bond Ordinance) and the installation of Communications Facilities (as defined in the Bond Ordinance) for a fiber-to-premises broadband network. This 2019B Bond is issued under the authority of and in full conformity with the Constitution of the State of Colorado; Title 31 Article 15, Parts 3 and 7, C.R.S., Title 30, Article 20, Part 3, C.R.S., Title 29, Article 27, C.R.S., and all other laws of the State of Colorado thereunto enabling; the Supplemental Public Securities Act, part 2 of article 57 of title 11, C.R.S.; and pursuant to the Bond Ordinance. Pursuant to § 11-57-210, C.R.S., such recital shall conclusively impart full compliance with all of the provisions of the Supplemental Public Securities Act, and this 2019B Bond issued containing such * To be determined by Mayor, Town Administrator or Town Finance Officer. 224 29 4844-4843-7663.3 recital is conclusive evidence of the validity and regularity of the issuance of this 2019B Bond after its delivery for value. It is hereby recited, certified and warranted that all of the requirements of law have been fully complied with by the proper officers in issuing this 2019B Bond. Simultaneously with the issuance of this 2019B Bond, there are also being issued a series of Refunding and Improvement Power and Communications Revenue Bonds, Series 2019A in the aggregate principal amount of $ * (the “2019A Bonds”) under the Bond Ordinance, on a parity with the 2019B Bonds. The 2019A Bonds and the 2019B Bonds are collectively referred to herein as the “Bonds.” Payment of the principal of and interest on this 2019B Bond is to be made solely from, and as security for such payment there are irrevocably (but not necessarily exclusively) pledged, pursuant to the Bond Ordinance, two special accounts, thereby identified as the 2019B Principal and Interest Account and the 2019B Debt Service Reserve Account, into which the Town, acting by and through the Enterprise, has covenanted in the Bond Ordinance to pay, from certain revenues derived from the operation and use of and otherwise pertaining to the Light and Power Facilities and the Communications Facilities of the Town (the “Revenue” as defined in the Bond Ordinance) after provision is made only for the payment of all necessary and reasonable current expenses of operating, maintaining and repairing the Light and Power Facilities and the Communications Facilities (such remaining revenues being referred to as the “Pledged Revenues”), sums sufficient to pay when due the principal of and interest on the Bonds and any parity securities payable from such revenues. The Bonds are equally and ratably secured by a lien on the Pledged Revenues, and the Bonds constitute an irrevocable and first lien (but not necessarily an exclusive first lien) thereon. In addition, obligations in addition to the Bonds, subject to expressed conditions, may be issued and made payable from the Pledged Revenues having a lien thereon subordinate and junior to the lien thereon of the Bonds, or subject to additional expressed conditions, having a lien thereon on a parity with the lien thereon of the Bonds, as provided in the Bond Ordinance. THIS 2019B BOND IS A SPECIAL, LIMITED OBLIGATION PAYABLE SOLELY OUT OF AND SECURED BY AN IRREVOCABLE AND FIRST LIEN (BUT NOT NECESSARILY AN EXCLUSIVE FIRST LIEN) ON THE PLEDGED REVENUES, AS MORE SPECIFICALLY PROVIDED IN THE BOND ORDINANCE. THIS 2019B BOND DOES NOT CONSTITUTE A DEBT OR AN INDEBTEDNESS OF THE TOWN WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY PROVISION OR LIMITATION. THIS 2019B BOND IS NOT PAYABLE IN WHOLE OR IN PART FROM THE PROCEEDS OF GENERAL PROPERTY TAXES OR ANY OTHER FORM OF TAXATION, AND THE FULL FAITH AND CREDIT OF THE TOWN IS NOT PLEDGED FOR THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THIS 2019B BOND. * To be determined by Mayor, Town Administrator or Town Finance Officer. 225 30 4844-4843-7663.3 It is hereby recited, certified and warranted that for the payment of the principal of and interest on this 2019B Bond, the Town, acting by and through the Enterprise, has created and will maintain said special accounts and will deposit the Pledged Revenues therein, and out of said special accounts, as an irrevocable charge thereon, will pay the principal of and interest on this 2019B Bond in the manner provided by the Bond Ordinance. Reference is made to the Bond Ordinance, and to any and all modifications and amendments thereof, for an additional description of the provisions, terms and conditions upon which the Bonds are issued and secured, including, without limitation, the nature and extent of the security for the Bonds, provisions with respect to the custody and application of the proceeds of the Bonds, the collection and disposition of the revenues and moneys charged with and pledged to the payment of the principal of and interest on the Bonds, a description of the special funds referred to above and the nature and extent of the security and pledge afforded thereby for the payment of the principal of and interest on this 2019B Bond, and the manner of enforcement of said pledge, as well as the rights, duties, immunities and obligations of the Town, acting by and though the Enterprise, and also the rights and remedies of the registered owners of the Bonds. To the extent and in the respects permitted by the Bond Ordinance, the provisions of the Bond Ordinance, or any instrument amendatory thereof or supplemental thereto, may be modified or amended by action of the Board of Trustees of the Town, acting as the governing body of the Enterprise, taken in the manner and subject to the conditions and exceptions provided in the Bond Ordinance. The pledge of revenues and other obligations of the Town, acting by and through the Enterprise, under the Bond Ordinance may be discharged at or prior to the maturity or prior redemption of the Bonds upon the making of provision for the payment of the Bonds on the terms and conditions set forth in the Bond Ordinance. The 2019B Bonds maturing on or before * are not subject to redemption prior to maturity. The 2019B Bonds maturing on and after * , are subject to redemption prior to maturity, at the option of the Town, acting by and through the Enterprise, in whole or in part, in any order of maturity and in whole or partial maturities, on * , and on any date thereafter, at the redemption price (expressed as a percentage of the principal amount) of * %, plus accrued interest to the redemption date. The Bonds will be redeemed only in integral multiples of $5,000. In the event a Bond is of a denomination larger than $5,000, a portion of such Bond may be redeemed, but only in the principal amount of $5,000 or any integral multiple thereof. Such Bond will be treated for the purposes of redemption as that number of Bonds which results from dividing the principal amount of such Bond by $5,000. In the event a portion of this 2019B Bond is redeemed, the Registrar shall, without charge to the * To be determined by Mayor, Town Administrator or Town Finance Officer. 226 31 4844-4843-7663.3 Registered Owner of this 2019B Bond, authenticate and deliver a replacement 2019B Bond or 2019B Bonds for the unredeemed portion. Notice of prior redemption shall be given by mailing a copy of the redemption notice, not more than 60 days and not less than thirty (30) days prior to the date fixed for redemption, to the Registered Owner of this 2019B Bond at the address shown on the registration books maintained by the Registrar or by electronic means to DTC or its successors, in the manner set forth in the Bond Ordinance. All 2019B Bonds called for redemption will cease to bear interest after the specified redemption date, provided funds for their redemption are on deposit at the place of payment at that time. The Town, acting by and through the Enterprise, and Registrar shall not be required (a) to issue, register, transfer or exchange any 2019B Bond during a period beginning at the opening of business on the Record Date immediately preceding any interest payment date or on any date of selection of 2019B Bonds to be redeemed prior to their maturity, and ending at the close of business on the interest payment date or date on which the applicable notice of redemption is given, or (b) to register, transfer or exchange any 2019B Bond selected or called for redemption in whole or in part. The Town, acting by and through the Enterprise, the Paying Agent and the Registrar may deem and treat the Registered Owner of this 2019B Bond as the absolute owner hereof for all purposes (whether or not this 2019B Bond shall be overdue), and any notice to the contrary shall not be binding upon the Town, acting by and through the Enterprise, the Paying Agent or the Registrar. This 2019B Bond may be exchanged at the principal corporate trust operations office of the Registrar for a like aggregate principal amount of 2019B Bonds of the same maturity of other authorized denominations. This 2019B Bond is transferable by the Registered Owner hereof in person or by his or her attorney duly authorized in writing, at the principal corporate trust operations office of the Registrar, but only in the manner, subject to the limitations, and upon payment of the charges provided in the Bond Ordinance and upon surrender and cancellation of this 2019B Bond. This 2019B Bond may be transferred upon the registration books upon delivery to the Registrar of this 2019B Bond, accompanied by a written instrument or instruments of transfer in form and with guaranty of signature satisfactory to the Registrar, duly executed by the Registered Owner of this 2019B Bond or his or her attorney-in-fact or legal representative, containing written instructions as to the details of the transfer of this 2019B Bond, along with the social security number or federal employer identification number of such transferee. In the event of the transfer of this 2019B Bond, the Registrar shall enter the transfer of ownership in the registration books and shall authenticate and deliver in the name of the transferee or transferees a new fully registered 2019B Bond or 2019B Bonds of authorized denominations of the same maturity and interest rate for the aggregate principal amount which the Registered Owner is entitled to receive at the earliest practicable time. The Registrar shall charge the Registered Owner of this 2019B Bond for every such transfer or exchange an amount sufficient to reimburse it for its reasonable fees and for any tax or other governmental charge required to be paid with respect to such transfer or exchange. 227 32 4844-4843-7663.3 This 2019B Bond shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the authorizing Bond Ordinance until the Certificate of Authentication hereon shall have been signed by the Registrar. 228 33 4844-4843-7663.3 IN TESTIMONY WHEREOF, the Board of Trustees of the Town, acting as the governing body of the Enterprise, has caused this 2019B Bond to be signed by the manual or facsimile signature of the Mayor of the Town, sealed with an impression or a facsimile of the seal of the Town, and attested by the manual or facsimile signature of the Town Clerk, all as of the date set forth below. TOWN OF ESTES PARK, COLORADO, ACTING BY AND THROUGH ITS POWER AND COMMUNICATIONS ENTERPRISE [SEAL] By Mayor Attested: By Town Clerk 229 34 4844-4843-7663.3 CERTIFICATE OF AUTHENTICATION This 2019B Bond is one of the 2019B Bonds of the issue described in the within mentioned Bond Ordinance. Date of UMB BANK, n.a., as Registrar Authentication: By Authorized Signatory 230 35 4844-4843-7663.3 ASSIGNMENT FOR VALUE RECEIVED, the undersigned sells, assigns, and transfers unto ______________________________________________________________________ ______ SOCIAL SECURITY OR FEDERAL EMPLOYER IDENTIFICATION NUMBER OF ASSIGNEE (Name and Address of Assignee) the within 2019B Bond and does hereby irrevocably constitute and appoint ______________________, attorney, to transfer said 2019B Bond on the books kept for registration thereof with full power of substitution in the premises. Dated: ______________________________ By Name Title NOTICE: The signature to this Assignment must correspond with the name of the Registered Owner as it appears upon the face of the within 2019B Bond in every particular, without, alteration or enlargement or any change whatsoever. Signature of Registered Owner: Signature Guaranteed: (Bank, Trust Company, or Firm) 231 36 4844-4843-7663.3 (End of Form of 2019B Bond) 232 37 4844-4843-7663.3 Section 9. Authentication. No Bond of either series shall be valid or obligatory for any purpose or be entitled to any security or benefit under this Ordinance unless and until a Certificate of Authentication on such 2019A Bond or 2019B Bond substantially in the form herein above set forth shall have been duly executed by the Registrar, and such executed Certificate of the Registrar upon any such 2019A Bond or 2019B Bond shall be conclusive evidence that such 2019A Bond or 2019B Bond has been authenticated and delivered under this Ordinance. The Registrar’s Certificate of Authentication on any 2019A Bond or 2019B Bond shall be deemed to have been executed by it if signed by an authorized officer or signatory of the Registrar, but it shall not be necessary that the same officer or signatory sign the Certificate of Authentication on all of the 2019A Bonds or 2019B Bonds issued hereunder. Section 10. Delivery of Bonds. Following the adoption of this Ordinance, the Town, acting by and through the Enterprise, shall execute each series of the Bonds and shall deliver them to the Registrar. The Registrar shall authenticate each series of the Bonds and deliver them to or hold them on behalf of DTC, as directed by the Town, acting by and through the Enterprise. Section 11. Disposition and Investment of Proceeds. The Bonds shall be issued and sold for the purpose of paying the Project Costs and for the redemption of the Refunded Bonds prior to the maturity thereof. Upon the issuance of the 2019A Bonds, proceeds of the 2019A Bonds, in an amount sufficient to redeem the Refunded Bonds on the earliest possible date following the issuance of the 2019A Bonds, shall be transferred to UMB Bank, n.a., as the paying agent for the Refunded Bonds. Neither the Underwriter nor any subsequent Owners of any of the Bonds shall be responsible for the application or disposal by the Town, acting by and through the Enterprise, or any of its officers of the funds derived from the sale thereof. All or any portion of the proceeds of the Bonds shall be temporarily invested or reinvested, pending such use, in Permitted Investments. Investments shall be valued by the Town, acting by and through the Enterprise, at fair market value on an annual basis, exclusive of accrued interest. Section 12. Funds and Accounts. Certain proceeds of the Bonds, and the Revenue, shall be deposited by the Town, acting by and through the Enterprise, in the funds and accounts described in this Section 12, to be accounted for in the manner and priority set forth herein. The Pledged Revenues and all moneys and securities paid or to be paid to or held or to be held in any fund or account hereunder (except the Operation and Maintenance Account and the Excess Investment Earnings Account) are hereby pledged to secure the payment of the Debt Service Requirements of the Bonds, subject to the provisions herein relating to the 2019A Project Account and 2019B Project Account and subject to the application of the Pledged Revenues for the payment of the Debt Service Requirements of any Parity Bonds. This pledge shall be valid and binding from and after the date of the first delivery of the Bonds, and the moneys, as received by the Town, acting by and through the Enterprise, and hereby pledged, shall 233 38 4844-4843-7663.3 immediately be subject to the lien of this pledge without any physical delivery thereof, any filing, or further act. The lien of this pledge and the obligation to perform the contractual provisions hereby made shall have priority over any or all other obligations and liabilities of the Town, acting by and through the Enterprise, (except as herein otherwise expressly provided), and the lien of this pledge shall be valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the Town or the Enterprise (except as herein otherwise expressly provided), irrespective of whether such parties have notice thereof. (a) 2019A Project Account. The non-refunding proceeds of the 2019A Bonds, except the sums, if any, required in Sections 12(e) and (f) hereof to be deposited in the 2019A Principal and Interest Account and the 2019A Debt Service Reserve Account, shall be deposited in the 2019A Project Account hereby created within the Power and Communications Enterprise Fund and shall be maintained, used and withdrawn only as provided herein and in the Tax Compliance Certificate solely for the purpose of paying, or reimbursing the Town or the Enterprise for payments of, the Cost of the Project and are pledged therefor. Any such proceeds remaining in the 2019A Project Account after completion of the Project, excluding investment earnings which may be required to be rebated to the federal government, shall be used first to pay the costs of any additional capital improvements that the Town, acting by and through the Enterprise, may determine to be part of the Project; then deposited in the 2019A Principal and Interest Account to be used for the purposes of the 2019A Principal and Interest Account or shall be used to the extent feasible to call and redeem 2019A Bonds in advance of maturity. The Town, acting by and through the Enterprise, shall use any proceeds of the 2019A Bonds credited to the 2019A Project Account, without further order, to pay the Debt Service Requirements of the 2019A Bonds as the same become due whenever and to the extent moneys in the 2019A Principal and Interest Account and the 2019A Debt Service Reserve Account or moneys otherwise available therefor are insufficient for that purpose, unless such proceeds shall be needed to defray obligations accrued and to accrue under any contracts then existing and pertaining to the Project. Any moneys so used shall be restored to the 2019A Project Account from the first Pledged Revenues thereafter received and not needed to meet the requirements provided in paragraphs (e) and (f) hereof. (b) 2019B Project Account. The proceeds of the 2019B Bonds, except the sums, if any, required in Sections 12(e) and (f) hereof to be deposited in the 2019B Principal and Interest Account and the 2019B Debt Service Reserve Account, shall be deposited in the 2019B Project Account hereby created within the Power and Communications Enterprise Fund and shall be maintained, used and withdrawn only as provided herein solely for the purpose of paying the Cost of the Project and are pledged therefor. Any such proceeds remaining in the 2019B Project Account after completion of the Project, including investment earnings, shall be used first to pay the costs of any additional capital improvements that the Town, acting by and through the Enterprise, may determine to be part of the Project; then deposited in the 2019B Principal and 234 39 4844-4843-7663.3 Interest Account to be used for the purposes of the 2019B Principal and Interest Account or shall be used to the extent feasible to call and redeem 2019B Bonds in advance of maturity. The Town, acting by and through the Enterprise, shall use any proceeds of the 2019B Bonds credited to the 2019B Project Account, without further order, to pay the Debt Service Requirements of the 2019B Bonds as the same become due whenever and to the extent moneys in the 2019B Principal and Interest Account and the 2019B Debt Service Reserve Account or moneys otherwise available therefor are insufficient for that purpose, unless such proceeds shall be needed to defray obligations accrued and to accrue under any contracts then existing and pertaining to the Project. Any moneys so used shall be restored to the 2019B Project Account from the first Pledged Revenues thereafter received and not needed to meet the requirements provided in paragraphs (e) and (f) hereof. (c) Power and Communications Enterprise Fund. Except as otherwise provided herein, the entire Revenue, upon receipt thereof from time-to-time by the Town, acting by and through the Enterprise, shall be set aside and credited immediately to the Power and Communications Enterprise Fund. In addition, the Town may at its option credit to the Power and Communications Enterprise Fund any other moneys of the Town legally available for expenditure for the purposes of the Power and Communications Enterprise Fund as provided herein. The Power and Communications Enterprise Fund shall be administered and the moneys on deposit therein shall be deposited and applied in the following order of priority: FIRST, to the Operation and Maintenance Account to pay Operation and Maintenance Expenses in the manner set forth in Section 12(d) hereof; SECOND, concurrently and without priority of one over another, to the 2019A Principal and Interest Account to pay the Debt Service Requirements of the 2019A Bonds, to the 2019B Principal and Interest Account to pay the Debt Service Requirements of the 2019B Bonds, and to any account or accounts established to pay the Debt Service Requirements with respect to any Parity Bonds then Outstanding in the manner set forth in Section 12(e) hereof; THIRD, concurrently and without priority of one over another, to the 2019A Debt Service Reserve Account, to the 2019B Debt Service Reserve Account, and to any debt service reserve account or accounts established for any Parity Bonds, in the manner set forth in Section 12(f) hereof; 235 40 4844-4843-7663.3 FOURTH, to the payment of the Debt Service Requirements of Subordinate Bonds or other Subordinate Securities in accordance with Section 12(h) hereof; and FIFTH, to be used in accordance with Sections 12(g) and (i) hereof. (d) Operation and Maintenance Account. As a first charge on the Power and Communications Enterprise Fund, there shall be credited from time-to-time to the Operation and Maintenance Account created by this Ordinance within the Power and Communications Enterprise Fund moneys sufficient to pay the Operation and Maintenance Expenses of the Light and Power Facilities and the Communications Facilities as they become due and payable, and thereupon the Operation and Maintenance Expenses shall be promptly paid. (e) 2019A and 2019B Principal and Interest Accounts. The Town shall deposit in the 2019A and 2019B Principal and Interest Accounts, as the case may be, created by this Ordinance within the Power and Communications Enterprise Fund, forthwith upon receipt of the proceeds of the Bonds, (i) interest accrued on each series of the Bonds from their date to the date of delivery thereof to the Underwriter, to apply to the payment of interest first due on the 2019A Bonds and the 2019B Bonds, and (ii) the amount of capitalized interest for each series of the Bonds as determined in the Bond Details Certificate. Subject to the payments required by Section 12(d) hereof, for so long as the 2019A Bonds, the 2019B Bonds, or any Parity Bonds are Outstanding, the Town, acting by and through the Enterprise, shall deposit in the 2019A Principal and Interest Account, the 2019B Principal and Interest Account, and to any account or accounts established to pay the principal of and interest on any Parity Bonds then Outstanding, from the Pledged Revenues on or before the last day of each month beginning with the month of issuance of the Bonds and before the first Interest Payment Date, the amount of interest accruing on the 2019A Bonds, 2019B Bonds and any Parity Bonds during said month (with a credit for the amount of any accrued interest and capitalized interest on the 2019A Bonds and the 2019B Bonds deposited in the 2019A Principal and Interest Account and the 2019B Principal and Interest Account, respectively), and on or before the last day of each month after the first Interest Payment Date of the Bonds, the following amounts: (i) Interest Payments. Concurrently and without priority of one over another, to the 2019A Principal and Interest Account, the 2019B Principal and Interest Account, and to any account or accounts established to pay the interest on any Parity Bonds then Outstanding, one- sixth of the aggregate amount of the next installment of interest due in the then current Bond Year plus any other amounts due for interest on the 2019A Bonds, the 2019B Bonds and any Parity Bonds then Outstanding (with a credit for the amount of any capitalized interest on the 2019A 236 41 4844-4843-7663.3 Bonds and the 2019B Bonds deposited in the 2019A Principal and Interest Account and the 2019B Principal and Interest Account, respectively); and (ii) Principal Payments. Concurrently and without priority of one over another, to the 2019A Principal and Interest Account, the 2019B Principal and Interest Account, and any account or accounts established to pay the principal of any Parity Bonds then Outstanding, one-twelfth of the aggregate amount of the installment of principal due in the then current Bond Year plus any other amounts due for principal of the 2019A Bonds, the 2019B Bonds and any Parity Bonds then Outstanding. Such interest and principal shall be promptly paid when due. The moneys credited to the 2019A Principal and Interest Account, the 2019B Principal and Interest Account, and any account or accounts established to pay the principal of and interest on any Parity Bonds then Outstanding shall be used to pay the Debt Service Requirements of the 2019A Bonds, the 2019B Bonds and any Parity Bonds, respectively, then Outstanding, as such Debt Service Requirements become due, except as otherwise provided in this Ordinance. The 2019A Principal and Interest Account, the 2019B Principal and Interest Account, and any account or accounts established to pay the principal of and interest on any Parity Bonds then Outstanding shall also be maintained as a sinking fund for the mandatory redemption of any 2019A Bonds, any 2019B Bonds, or any Parity Bonds, respectively, which are subject to mandatory sinking fund redemption. Any mandatory sinking fund redemption shall be treated as an installment of principal for purposes of this Section 12(e). The 2019A Principal and Interest Account, the 2019B Principal and Interest Account, and any account or accounts established to pay the principal of and interest on any Parity Bonds then Outstanding shall have proportionately equal claims to the Pledged Revenues and shall each be on a parity with one another. Nothing herein shall be construed to prevent the Town, acting by and through the Enterprise, from creating subfunds or subaccounts for the purpose of recording the payments and accumulations made hereunder in a manner consistent with the accounting principles which may be employed by the Town from time-to-time. (f) 2019A and 2019B Debt Service Reserve Accounts. The 2019A Debt Service Reserve Account and the 2019B Debt Service Reserve Account are hereby created within the Power and Communications Enterprise Fund to secure payment of the 2019A Bonds and the 2019B Bonds, respectively. The existence and amounts of the 2019A Debt Service Reserve Account and the 2019B Debt Service Reserve Account shall otherwise be established in the Bond Details Certificate. In the event the amount in each of the 2019A Debt Service Reserve Account and the 2019B Debt Service Reserve Account is determined to be $0 in the Bond Details Certificate, all references herein to the 2019A Debt Service Reserve Account and the 2019B Debt Service Reserve Account, and the requirements that a reserve fund or account be established for any Parity Bonds, shall be of no force and effect. 237 42 4844-4843-7663.3 A sum equal to (i) the lesser of (A) 10% of the stated principal amount of the 2019A Bonds, (B) the Maximum Annual Debt Service Requirements of the 2019A Bonds coming due in any Bond Year or (C) 125% of the average annual principal and interest payments on the 2019A Bonds, or (ii) any lesser amount (the “2019A Reserve Requirement”) shall be deposited and maintained in the 2019A Debt Service Reserve Account upon the issuance of the 2019A Bonds. A sum determined in the Bond Details Certificate (the “2019B Reserve Requirement”) shall be deposited and maintained in the 2019B Debt Service Reserve Account upon the issuance of the 2019B Bonds. In satisfaction of the 2019A Reserve Requirement and the 2019B Reserve Requirement, the Town, acting by and through the Enterprise, shall deposit either proceeds of the 2019A Bonds and the 2019B Bonds, cash of the Enterprise or a Reserve Fund Insurance Policy in each of the 2019A Debt Service Reserve Account and the 2019B Debt Service Reserve Account. Subject to the payments required by Sections (d) and (e) hereof, from the Pledged Revenues there shall be credited, as hereinafter provided, to the 2019A Debt Service Reserve Account and the 2019B Debt Service Reserve Account moneys sufficient to maintain the 2019A Debt Service Reserve Account at the 2019A Reserve Requirement and to maintain the 2019B Debt Service Reserve Account at the 2019B Reserve Requirement. In the event that the amount of the 2019A Debt Service Reserve Account falls below the 2019A Reserve Requirement or the 2019B Debt Service Reserve Account falls below the 2019B Reserve Requirement, the Town, acting by and through the Enterprise, shall credit monthly, as provided below, to the 2019A Debt Service Reserve Account or the 2019B Debt Service Reserve Account, as the case may be, from the Pledged Revenues, that sum of money needed to maintain the 2019A Reserve Requirement or the 2019B Reserve Requirement, as applicable. The moneys required to be on deposit in the 2019A Debt Service Reserve Account and the 2019B Debt Service Reserve Account shall be maintained as a continuing reserve to be used, except as hereinafter provided in this subparagraph (f) and in Section 47 hereof, only to prevent deficiencies in payment of the Debt Service Requirements of the 2019A Bonds or the 2019B Bonds then Outstanding resulting from failure to deposit into the 2019A Principal and Interest Account or the 2019B Principal and Interest Account, as the case may be, sufficient funds to pay such Debt Service Requirements as the same become due. In the event that there is a deficiency in the 2019A Principal and Interest Account for the payment of interest on and/or principal of the 2019A Bonds on any Interest Payment Date, monies in the 2019A Debt Service Reserve Account shall be transferred to the 2019A Principal and Interest Account in the amount of such deficiency. In the event that there is a deficiency in the 2019B Principal and Interest Account for the payment of interest on and/or principal of the 2019B Bonds on any Interest Payment Date, monies in the 2019B Debt Service Reserve Account shall be transferred to the 2019B Principal and Interest Account in the amount of such deficiency. 238 43 4844-4843-7663.3 Any Reserve Fund Insurance Policy shall be held by the Paying Agent. Any Reserve Fund Insurance Policy shall be valued at the amount available to be drawn or otherwise paid pursuant to such Reserve Fund Insurance Policy. The Paying Agent shall maintain adequate records as to the amount available to be drawn at any time under any Reserve Fund Insurance Policy and shall inform the Town, acting by and through the Enterprise, of any draws or payments made under any Reserve Fund Insurance Policy. In the event that the amount in the 2019A Debt Service Reserve Account falls below the 2019A Reserve Requirement or the amount in the 2019B Debt Service Reserve Account falls below the 2019B Reserve Requirement, the Town, acting by and through the Enterprise, shall deposit in the 2019A Debt Service Reserve Account or the 2019B Debt Service Reserve Account, as applicable, but subject to the payments required by Section 12(d) and 12(e) hereof, monthly, commencing on the last day of the month next succeeding each date on which moneys in the 2019A Debt Service Reserve Account have fallen below the 2019A Reserve Requirement or moneys in the 2019B Debt Service Reserve Account have fallen below the 2019B Reserve Requirement, an amount in substantially equal monthly payments on the last day of each month, to replenish the 2019A Reserve Requirement or the 2019B Reserve Requirement, as the case may be, in not more than 12 monthly payments. Nothing in this Ordinance shall be construed as limiting the right of the Town, acting by and through the Enterprise, to substitute for any Bond proceeds or cash required to be maintained hereunder in the 2019A Debt Service Reserve Account or the 2019B Debt Service Reserve Account a Reserve Fund Insurance Policy in the amount otherwise required to be maintained hereunder; provided that any such substitution shall not cause the then current rating or ratings of the 2019A Bonds or the 2019B Bonds, as applicable, to be adversely affected. (g) Termination of Deposits. No payment need be made into the 2019A Principal and Interest Account if the amount in the 2019A Principal and Interest Account and the moneys in the 2019A Debt Service Reserve Account (but not proceeds of a Reserve Fund Insurance Policy) total a sum at least equal to the entire amount of the Outstanding 2019A Bonds, as to all Debt Service Requirements, to their respective maturities or to any Redemption Date or Redemption Dates as of which the Town, acting by and through the Enterprise, shall have exercised or shall have obligated itself to exercise its option to redeem, prior to their respective maturity dates, the Outstanding 2019A Bonds thereafter maturing and subject to such redemption (provided that, solely for the purpose of this subparagraph (g), there shall be deemed to be a credit to the 2019A Principal and Interest Account of moneys, Federal Securities and bank deposits, or any combination thereof, accounted for in any other fund or account of the Town, acting by and through the Enterprise, and restricted solely for the purpose of paying the Debt Service Requirements of the 2019A Bonds), in which case moneys in the 2019A Principal and Interest Account and moneys in the 2019A Debt Service Reserve Account in an amount, including any known interest 239 44 4844-4843-7663.3 or other gain to accrue from any investment or deposit of moneys pursuant to Section 14 hereof from the time of any such investment or deposit to the time or respective times the proceeds of any such investment or deposit shall be needed for such payment, at least equal to such Debt Service Requirements, shall be used solely to pay such Debt Service Requirements as the same become due. Any moneys in excess thereof in the 2019A Principal and Interest Account and moneys in the 2019A Debt Service Reserve Account and any other moneys derived from the Revenue or otherwise pertaining to the Light and Power Facilities or the Communications Facilities may be used in any lawful manner determined by the Town, acting by and through the Enterprise. No payment need be made into the 2019B Principal and Interest Account if the amount in the 2019B Principal and Interest Account and the moneys in the 2019B Debt Service Reserve Account (but not proceeds of a Reserve Fund Insurance Policy) total a sum at least equal to the entire amount of the Outstanding 2019B Bonds, as to all Debt Service Requirements, to their respective maturities or to any Redemption Date or Redemption Dates as of which the Town, acting by and through the Enterprise, shall have exercised or shall have obligated itself to exercise its option to redeem, prior to their respective maturity dates, the Outstanding 2019B Bonds thereafter maturing and subject to such redemption (provided that, solely for the purpose of this subparagraph (g), there shall be deemed to be a credit to the 2019B Principal and Interest Account of moneys, Federal Securities and bank deposits, or any combination thereof, accounted for in any other fund or account of the Town, acting by and through the Enterprise, and restricted solely for the purpose of paying the Debt Service Requirements of the Series 2019B Bonds), in which case moneys in the 2019B Principal and Interest Account and moneys in the 2019B Debt Service Reserve Account in an amount, including any known interest or other gain to accrue from any investment or deposit of moneys pursuant to Section 14 hereof from the time of any such investment or deposit to the time or respective times the proceeds of any such investment or deposit shall be needed for such payment, at least equal to such Debt Service Requirements, shall be used solely to pay such Debt Service Requirements as the same become due. Any moneys in excess thereof in the 2019B Principal and Interest Account and moneys in the 2019B Debt Service Reserve Account and any other moneys derived from the Revenue or otherwise pertaining to the Light and Power Facilities or the Communications Facilities may be used in any lawful manner determined by the Town, acting by and through the Enterprise. (h) Payment of Subordinate Securities. After there has been deposited to the 2019A Principal and Interest Account, the 2019B Principal and Interest Account, and any account or accounts established to pay the principal of and interest on any Parity Bonds then Outstanding, amounts sufficient to pay all the Debt Service Requirements due during the current Bond Year on all 2019A Bonds, 2019B Bonds and any Parity Bonds then Outstanding and after any replenishment of the 2019A Debt Service Reserve Account and the 2019B Debt Service Reserve Account to be made in the current Bond Year have been made, 240 45 4844-4843-7663.3 any moneys remaining in the Power and Communications Enterprise Fund for such Bond Year may be used by the Town, acting by and through the Enterprise, for the payment of Debt Service Requirements of Subordinate Securities payable from the Pledged Revenues and authorized to be issued in accordance with this Ordinance, including reasonable reserves for such Subordinate Securities, if any; but the lien of such Subordinate Securities on the Pledged Revenues and the pledge thereof for the payment of such Subordinate Securities shall be subordinate to the lien and pledge thereof for the Bonds and any Parity Bonds as provided herein. (i) Use of Remaining Revenues. After the payments required to be made by Sections 12(a) through (h) hereof are made, at the end of any Bond Year, or whenever in any Bond Year there shall have been credited to the special funds identified in Sections 12(a) through (h) hereof all amounts required to be deposited in such special funds during said Bond Year, as provided herein, any remaining moneys credited to the Power and Communications Enterprise Fund may be used for the Acquisition of Improvements or Equipment for the Light and Power Facilities, the Communications Facilities or for any one or any combination of other lawful purposes as the Town may from time-to-time determine. (j) Budget and Appropriation of Sums. The sums provided to make the payments specified in this Section 12 are hereby appropriated for said purposes, and said amounts for each year shall be included in the annual budget and the appropriation ordinance or measures to be adopted or passed by the Board in each year respectively while any of the Bonds, either as to principal or interest, are Outstanding and unpaid. No provisions of any constitution, charter, statute, ordinance, this Ordinance, or other order or measure enacted after the issuance of the Bonds shall in any manner be construed as limiting or impairing the obligation of the Town to keep and perform the covenants contained in this Ordinance so long as any of the Bonds remain Outstanding and unpaid. Nothing herein shall prohibit the Board from appropriating other funds of the Town legally available for this purpose to the Power and Communications Enterprise Fund for the purposes thereof. (k) Excess Investment Earnings Account. The Finance Officer shall transfer into and pay from the Excess Investment Earnings Account hereby created within the Power and Communications Enterprise Fund the amount of required arbitrage rebate, if any, due to the federal government under Sections 103 and 148(f)(2) of the Code. The Finance Officer shall determine or cause to be determined such amounts in the manner required by said sections and related regulations and Section 41 hereof. Transfer of the investment earnings that are required to be rebated to the federal government shall be made from the 2019A Project Account, the 2019A Principal and Interest Account and the 2019A Debt Service Reserve Account; provided, however, that required arbitrage rebate payments shall be made to the federal government from legally available funds 241 46 4844-4843-7663.3 regardless of whether there are any remaining proceeds or other funds attributable to the 2019A Bonds that are available for that purpose. All amounts in the Excess Investment Earnings Account, including income earned from investment thereof, shall be held by the Finance Officer free and clear of any lien created by this Ordinance, and the Finance Officer shall remit the same to the federal government from time-to-time as provided in Section 41(b) hereof. Any moneys in the Excess Investment Earnings Account that are not needed to make arbitrage rebate payments to the federal government may be transferred to the 2019A Principal and Interest Account and used for the Debt Service Requirements of the 2019A Bonds. Section 13. Places and Times of Deposits. Each of the special funds or accounts created or referred to in Section 12 hereof shall be maintained as a book account of the Town and all moneys accounted for therein shall at all times be either deposited in a Commercial Bank or invested in Permitted Investments. For purposes of such deposits or investments of moneys, nothing herein prevents the commingling of moneys accounted for in any two or more such funds or accounts pertaining to the Revenue. Such funds or accounts shall be continuously secured to the fullest extent required or permitted by the laws of the State for the securing of public funds and shall be irrevocable and not withdrawable by anyone for any purpose other than the respective designated purposes of such funds or accounts. Each periodic payment shall be credited to the proper fund or account not later than the date therefor herein designated, except that when any such date shall be a Saturday, a Sunday or a legal holiday, then such payment shall be made on or before the next succeeding business day. Section 14. Investment of Funds. Any moneys in any fund or account described in Section 12 hereof may be invested, reinvested or deposited only in Permitted Investments. Securities or obligations so purchased as an investment of moneys in any such fund or account shall be deemed at all times to be a part of the applicable fund or account. Interest and profit realized from investments of moneys in the 2019A and 2019B Project Accounts shall be credited to the 2019A and 2019B Project Accounts, respectively, except that any interest or profit from investments of moneys in the 2019A Project Account may be credited to the Excess Investment Earnings Account, if necessary. Any loss resulting from investments of moneys in the 2019A and 2019B Project Accounts shall be charged to the 2019A and 2019B Project Accounts, respectively. Interest and profit realized from investments in the 2019A and 2019B Debt Service Reserve Accounts shall be credited to the 2019A and 2019B Debt Service Reserve Accounts, respectively; provided that, so long as the amount in the 2019A Debt Service Reserve Account equals the 2019A Reserve Requirement, such interest and profit may be transferred to the 2019A Principal and Interest Account and distributed in the same manner as other moneys in the 2019A Principal and Interest Account or may be transferred to the Excess Investment Earnings Account, if necessary, and so long as the amount in the 2019B Debt Service Reserve Account 242 47 4844-4843-7663.3 equals the 2019B Reserve Requirement, such interest and profit may be transferred to the 2019B Principal and Interest Account and distributed in the same manner as other moneys in the 2019B Principal and Interest Account. Any loss resulting from such investments in the 2019A and 2019B Debt Service Reserve Accounts shall be charged to the 2019A and 2019B Debt Service Reserve Accounts, respectively. Interest and profit realized from investments in the 2019A Principal and Interest Account or the 2019B Principal and Interest Account shall be credited to the 2019A Principal and Interest Account or the 2019B Principal and Interest Account, respectively, except that any interest or profit from investments of moneys in the 2019A Principal and Interest Account may be credited to the Excess Investment Earnings Account, if necessary. Any loss resulting from investments of moneys in the 2019A Principal and Interest Account or the 2019B Principal and Interest Account shall be charged to the 2019A Principal and Interest Account or the 2019B Principal and Interest Account, respectively. The Town, acting by and through the Enterprise, shall present for redemption or sale on the prevailing market any securities or obligations so purchased as an investment of moneys in a given fund or account whenever it shall be necessary to do so in order to provide moneys to meet any required payment or transfer from such fund or account. The Town, acting by and through the Enterprise, shall not invest any moneys accounted for in the 2019A Project Account, the 2019A Principal and Interest Account or the 2019A Debt Service Reserve Account if any such investment would contravene the covenant concerning arbitrage in Section 41(a) hereof. Section 15. No Liability for Losses Incurred in Performing Terms of Ordinance. Neither the Town nor any officer of the Town shall be liable or responsible for any loss resulting from any investment or reinvestment made in accordance with this Ordinance. Section 16. Character of Funds. The moneys in any fund or account herein described shall consist of lawful money of the United States of America or investments permitted by Section 14 hereof or both such money and such investments. Moneys deposited in a demand or time deposit account in or evidenced by a certificate of deposit of a Commercial Bank pursuant to Sections 13 and 14 hereof, appropriately secured according to the laws of the State, shall be deemed lawful money of the United States of America. Section 17. First Lien on Pledged Revenues; Equality of Bonds. Except as expressly provided in this Ordinance with respect to Parity Bonds, and Subordinate Securities, the Pledged Revenues shall be and hereby are irrevocably pledged and set aside to pay the Debt Service Requirements of the Bonds and any Parity Bonds. The Bonds constitute an irrevocable and first lien (but not necessarily an exclusive first lien) upon the Pledged Revenues. The Bonds and any Parity Bonds hereafter authorized to be issued and from time-to-time Outstanding are equitably and ratably secured by a lien on the Pledged Revenues and shall not be entitled to any priority one over the other in the application of the Pledged Revenues regardless of the time or times of the issuance thereof, it being 243 48 4844-4843-7663.3 the intention of the Board that there shall be no priority among the Bonds and any Parity Bonds, regardless of the fact that they may be actually issued and delivered at different times. The creation, perfection, enforcement, and priority of the pledge of Pledged Revenues to secure or pay the Bonds and any Parity Bonds as provided herein shall be governed by Section 11-57-208 of the Supplemental Act and this Ordinance. Pledged Revenues pledged for the payment of the Bonds and any Parity Bonds, as received by or otherwise credited to the Town, acting by and through the Enterprise, shall immediately be subject to the lien of such pledge without any physical delivery, filing, or further act. The lien of such pledge on the Pledged Revenues pledged for payment of the Bonds and any Parity Bonds and the obligation to perform the contractual provisions made herein shall have priority over any or all other obligations and liabilities of the Town, acting by and through the Enterprise, and of the Town. The lien of such pledge shall be valid, binding, and enforceable as against all persons having claims of any kind in tort, contract, or otherwise against the Town, acting by and through the Enterprise, and against the Town irrespective of whether such persons have notice of such liens. Section 18. Issuance of Parity Bonds. Nothing herein, except the limitations stated in Section 22 hereof, prevents the issuance by the Town, acting by and through the Enterprise, of Parity Bonds payable from the Pledged Revenues and constituting a lien on the Pledged Revenues on a parity with, but not prior or superior to, the lien thereon of the Bonds; but before any such Parity Bonds are authorized or actually issued the Town, acting by and through the Enterprise, shall satisfy the following conditions: (a) Absence of Default. At the time of the adoption of the supplemental ordinance or other instrument authorizing the issuance of the Parity Bonds as provided in Section 22 hereof, the Town, acting by and through the Enterprise, shall not be in default in making any payments required by Section 12 hereof. (b) Historic Revenues Tests. (i) Except as hereinafter provided in the case of Parity Bonds issued for the purpose of refunding less than all of the Bonds and other Parity Bonds then Outstanding, the Pledged Revenues for the last complete Fiscal Year prior to the issuance of the proposed Parity Bonds, as certified by the Finance Officer, must have been equal to at least 125% of the Combined Maximum Annual Debt Service Requirements of the Bonds and other Parity Bonds then Outstanding, and the Parity Bonds proposed to be issued, plus 100% of any Policy Costs attributable to the Bonds. (ii) If any adjustment in rates, fees, tolls or charges is made by the Town, acting by and through the Enterprise, during such Fiscal Year, the Finance Officer shall adjust the calculation of the Pledged Revenues 244 49 4844-4843-7663.3 to reflect the amount thereof that would have been received if such adjustment had been in effect throughout such Fiscal Year. (iii) For purposes of this Section 18(b), when computing the Maximum Annual Debt Service Requirements for any issue of securities bearing interest at a variable, adjustable, convertible or other similar rate which is not fixed for the entire term thereof, it shall be assumed that any such securities Outstanding at the time of the computation will bear interest during any period, if the interest rate for such periods shall not have been determined, at a fixed rate equal to the higher of 6% per annum or the highest interest rate borne during the preceding 24 months by outstanding securities of the Town bearing interest at a variable, adjustable, convertible or other similar rate or, if no such securities of the Town are Outstanding at the time of the computation, by any similar securities for which the interest rate is determined by reference to an index comparable to that to be utilized in connection with the securities proposed to be issued, or if the interest rate for such period has been determined and is not subject to variation, adjustment or conversion prior to the expiration of such period, at the rate so determined. It shall further be assumed that any such securities which maybe tendered prior to maturity for purchase at the option of the owner thereof will mature on their stated maturity or mandatory redemption dates. (iv) In the case of Parity Bonds issued for the purpose of refunding less than all of the Bonds and other Parity Bonds then Outstanding, compliance with this Section 18(b) shall not be required so long as the Debt Service Requirements payable on such Parity Bonds and the Bonds and other Parity Bonds left Outstanding in each Bond Year after the issuance of such Parity Bonds do not exceed the Debt Service Requirements payable on the Bonds and other Parity Bonds Outstanding in each Bond Year prior to the issuance of such Parity Bonds. Section 19. Effect of Certification of Revenues. Where certifications of revenues are required by this Ordinance, the specified and required written certifications of the Finance Officer to the effect that revenues are sufficient to pay the required amounts shall be conclusively presumed to be accurate in determining the right of the Town, acting by and through the Enterprise, to authorize, issue, sell and deliver Parity Bonds. Section 20. Subordinate Securities Permitted. Nothing herein, except the limitations stated in Section 22 hereof, prevents the Town, acting by and through the Enterprise, from issuing Subordinate Securities for any lawful purpose. Section 21. Superior Securities Prohibited. Nothing herein permits the Town, acting by and through the Enterprise, to issue Superior Bonds or Superior Securities. 245 50 4844-4843-7663.3 Section 22. Supplemental Ordinances. Parity Bonds or Subordinate Securities shall be issued only after authorization thereof by ordinance, supplemental ordinance or legislative measure adopted by the Board, in substantially the same form as this Ordinance, stating the purpose or purposes of the issuance of such Parity Bonds or Subordinate Securities, directing the application of the proceeds thereof to such purpose or purposes, directing the execution thereof, and fixing and determining or authorizing the Mayor, Town Administrator or Finance Director to determine the date, series designation, total principal amount and principal amounts maturing in each year, maturity or maturities, maximum rate or rates of interest and prior redemption privileges of the Town, acting by and through the Enterprise, with respect thereto, and providing for payments to and from the Power and Communications Enterprise Fund in accordance with this Ordinance. All Parity Bonds and Subordinate Securities shall be payable as to principal and interest on the same semiannual dates as the Bonds. Section 23. Rate Maintenance Covenant. The Town, acting by and through the Enterprise, shall prescribe, revise and collect rates, fees and charges for use of the Light and Power Facilities and the Communications Facilities which shall produce Revenue sufficient, together with any other moneys legally available therefor and credited to the Power and Communications Enterprise Fund, to make the payments and accumulations required by this Ordinance, and which shall produce Revenue sufficient, after payment of Operation and Maintenance Expenses, to pay an amount at least equal to 125% of the combined annual Debt Service Requirements for the Outstanding Bonds and every issue of Outstanding Parity Bonds. Such Revenue remaining after payment of Operation and Maintenance Expenses and the Debt Service Requirements of the Outstanding Bonds and the Outstanding Parity Bonds also shall be sufficient to pay 100% of the combined annual Debt Service Requirements of all Outstanding Subordinate Securities, plus any amounts required to meet then existing deficiencies pertaining to any fund or account relating to the Pledged Revenues or any securities payable therefrom, plus any Policy Costs attributable to the Bonds. The Board will increase rates, fees and charges in such manner and to such extent as to reasonably insure the payments and accumulations required by the provisions of this Ordinance. Section 24. Collection of Charges. The Town, acting by and through the Enterprise, shall cause all rates, fees and charges to be billed promptly and collected as soon as reasonable, and shall prescribe and enforce rules and regulations or impose contractual obligations for the payment thereof, to the end that the Pledged Revenues shall be adequate to meet the requirements of this Ordinance and any other ordinance or instrument supplemental thereto. The rates, fees and charges shall be collected in any lawful manner. Section 25. Competent Management. The Town shall employ experienced and competent management personnel for each component of the Light and Power Facilities and the Communications Facilities. If the Town, acting by and through the Enterprise, shall fail to pay the Debt Service Requirements of the Bonds promptly as the same become due, or if the Town, acting by and through the Enterprise, shall fail to keep any of the covenants herein contained and if such default shall continue for a period of 60 days, or if in any Fiscal Year the Pledged Revenues, together with any 246 51 4844-4843-7663.3 other moneys legally available therefor and credited to the Power and Communications Enterprise Fund, should fail to equal at least the amount of the Debt Service Requirements of the Bonds and other obligations payable from the Pledged Revenues due in the Comparable Bond Year, the Town shall retain a firm or firms of competent management Persons skilled and knowledgeable in the operation of light and power and broadband facilities and services to assist in the management of the Light and Power Facilities and Communications Facilities so long as such default or deficiency continues. Section 26. Performance of Duties. The Town, acting by and through the Enterprise, or otherwise, shall faithfully and punctually perform, or cause to be performed, all duties with respect to the Revenue and the Light and Power Facilities and Communications Facilities required by the constitution and laws of the State and the ordinances and contracts of the Town and the Enterprise, including without limitation the proper segregation of the proceeds of the Bonds, and the Revenue and their application from time-to-time to the respective funds provided therefor. Section 27. Costs of Bond Issuance and of Performance. Except as otherwise specifically provided herein, all costs and expenses incurred in connection with the issuance of the Bonds, payment of the Debt Service Requirements, or the performance of or compliance with any covenant or agreement contained in this Ordinance shall be paid exclusively (but only from the appropriate special fund or account in the manner authorized herein) from the proceeds of the Bonds, the Pledged Revenues, or other legally available moneys, and in no event shall any of such costs or expenses be required to be paid out of or charged to the general fund of the Town. Section 28. Contractual Obligations. The Town, acting by and through the Enterprise, will perform all contractual obligations undertaken by it hereunder and any other agreements relating to the Bonds, the Revenue, the Light and Power Facilities or the Communications Facilities. Section 29. Further Assurances. At any and all times the Town, acting by and through the Enterprise, shall, so far as it may be authorized by law, pass, make, duly execute, acknowledge, deliver and file or record all and every such further instrument, act, deed, conveyance, assignment, transfer, other document, and assurance as may be necessary or desirable for the better assuring, conveying, granting, assigning and confirming all and singular the rights, the Pledged Revenues and other funds hereby pledged or assigned, or intended so to be, or which the Town, acting by and through the Enterprise, may hereafter become bound to pledge or assign, or as may be reasonable and required to carry out the purposes of this Ordinance. The Town, acting by and through the Enterprise and its officers, or otherwise, shall at all times, to the extent permitted by law, defend, preserve and protect the pledge of the Pledged Revenues and other funds and accounts pledged hereunder and all the rights of every Owner of any of the Bonds against all claims and demands of all Persons. Section 30. Conditions Precedent. Upon the date of issuance of the Bonds, all conditions, acts and things required by the Constitution or laws of the United States 247 52 4844-4843-7663.3 of America, the constitution or laws of the State and this Ordinance to exist, to have happened, and to have been performed precedent to or in the issuance of the Bonds shall exist, have happened and have been performed, and the Bonds shall not contravene any debt or other limitation prescribed by the Constitution or laws of the United States of America or the constitution or laws of the State. Section 31. Efficient Operation and Maintenance. The Town, acting by and through the Enterprise, shall at all times operate the Light and Power Facilities and the Communications Facilities properly and in a sound and economical manner. The Town, acting by and through the Enterprise, shall maintain, preserve and keep the Light and Power Facilities and the Communications Facilities properly or cause the same so to be maintained, preserved and kept, with the appurtenances and every part and parcel thereof in good repair, working order and condition, and shall from time-to-time make or cause to be made all necessary and proper repairs, replacements and renewals so that at all times the maintenance of the Light and Power Facilities and the Communications Facilities may be properly and advantageously conducted. All salaries, fees, wages and other compensation paid by the Town, acting by and through the Enterprise, in connection with the repair, maintenance and operation of the Light and Power Facilities and the Communications Facilities shall be fair and reasonable. Section 32. Records and Accounts. The Town will keep proper books of record and accounts, separate and apart from all other records and accounts, showing complete and correct entries of all transactions relating to the funds referred to herein. Section 33. Rules, Regulations and other Details. The Town, acting by and through the Enterprise, shall establish and enforce reasonable rules and regulations governing the construction, operation, care, repair, maintenance, management, control and use of the Light and Power Facilities and the Communications Facilities. The Town, acting by and through the Enterprise, shall observe and perform all of the terms and conditions contained in this Ordinance and shall comply with all valid acts, rules, regulations, orders and directives of any legislative, executive, administrative or judicial body applicable to the Light and Power Facilities, the Communications Facilities or the Town. Section 34. Payment of Governmental Charges. The Town, acting by and through the Enterprise, shall pay or cause to be paid all taxes and assessments or other municipal or governmental charges, if any, lawfully levied or assessed upon or in respect of the Light and Power Facilities or the Communications Facilities, or upon any part thereof, or upon any portion of the Revenue, when the same shall become due, and shall duly observe and comply with all valid requirements of any municipal or governmental authority relative to the Light and Power Facilities or the Communications Facilities, or any part thereof, except for any period during which the same are being contested in good faith by proper legal proceedings. The Town, acting by and through the Enterprise, shall not create or suffer to be created any lien or charge upon the Light and Power Facilities, the Communications Facilities, or any part thereof, or upon the Revenue, except the pledge and lien created by this Ordinance for the payment of the Debt Service Requirements due in connection with the Bonds, and except as herein 248 53 4844-4843-7663.3 otherwise permitted. The Town, acting by and through the Enterprise, shall pay or cause to be discharged or shall make adequate provision to satisfy and to discharge, within 90 days after the same shall become payable, all lawful claims and demands for labor, materials, supplies or other objects which, if unpaid, might by law become a lien upon the Light and Power Facilities, the Communications Facilities or any part thereof, or the Revenue, but nothing herein requires the Town, acting by and through the Enterprise, to pay or to cause to be discharged or to make provision for any such tax, assessment, lien or charge, so long as the validity thereof is contested in good faith and by appropriate legal proceedings. Section 35. Protection of Security; Enterprise Status. The Town, the Enterprise, and its officers, agents and employees, shall not take any action in such manner or to such extent as might prejudice the security for the payment of the Debt Service Requirements of the Bonds and any other securities payable from the Pledged Revenues according to the terms thereof. No contract shall be entered into nor any other action taken by which the rights of any Owner of any Bonds or other securities payable from Pledged Revenues might be prejudicially and materially impaired or diminished. The Town has established, and will use its best efforts to continue to operate and maintain, the Power and Communications Enterprise as an enterprise for purposes of Article X, Section 20 of the Colorado Constitution. Section 36. Accumulation of Interest Claims. In order to prevent any accumulation of claims for interest after maturity, the Town, acting by and through the Enterprise, shall not directly or indirectly extend or assent to the extension of the time for the payment of any claim for interest on any of the Bonds or any other securities payable from the Pledged Revenues; and the Town, acting by and through the Enterprise, shall not directly or indirectly be a party to or approve any arrangements for any such extension or for the purpose of keeping alive any of such claims for interest. If the time for the payment of any such installment of interest is extended in contravention of the foregoing provisions, such installment or installments of interest after such extension or arrangement shall not be entitled in case of default hereunder to the benefit or the security of this Ordinance, except upon the prior payment in full of the principal of all of the Bonds and any securities payable from the Pledged Revenues the payment of which has not been extended. Section 37. Prompt Payment of Bonds. The Town, acting by and through the Enterprise, shall promptly pay the Debt Service Requirements of every Bond at the place, on the dates, and in the manner specified herein and in the Bonds according to the true intent and meaning hereof. Section 38. Additional Securities. The Town shall not hereafter issue any bonds or securities relating to the Light and Power Facilities or the Communications Facilities and payable from the Pledged Revenues, other than the Bonds, without compliance with the requirements with respect to the issuance of Parity Bonds or Subordinate Securities set forth herein to the extent applicable. 249 54 4844-4843-7663.3 Section 39. Other Liens. At the time of issuance of the Bonds, there shall be no liens or encumbrances of any nature whatsoever on or against the Light and Power Facilities, the Communications Facilities or any part thereof or on or against the Pledged Revenues. Section 40. Surety Bonds. Each official or other person having custody of the Revenue or responsible for its handling, shall be bonded at all times. The cost of each such bond shall be considered an Operation and Maintenance Expense, unless otherwise provided by law. Section 41. Federal Income Tax Covenants. The Town, acting by and through the Enterprise, covenants to and for the benefit of the Owners of the 2019A Bonds as follows: (a) Arbitrage. The Town, acting by and through the Enterprise, will not directly or indirectly use or permit the use of proceeds of the 2019A Bonds or of any moneys treated as proceeds of the 2019A Bonds, or any other funds of the Town from whatever source derived, to acquire any investment, or take or permit to be taken any other action, which would cause the 2019A Bonds to be characterized as arbitrage bonds within the meaning of Section 148 of the Code, or to make, or permit to be made, any use of the proceeds of the 2019A Bonds or of any moneys treated as proceeds of the 2019A Bonds within the meaning of the Code which would otherwise cause the interest on the 2019A Bonds to be includable in gross income for federal income tax purposes. In the event that at any time the Town is of the opinion that, for purposes of this paragraph, it is necessary to restrict or limit the yield on the investment of any moneys held by the Town, acting by and through the Enterprise, under this Ordinance, the Town, acting by and through the Enterprise, shall take such action as may be necessary. (b) Rebate. The Finance Officer shall calculate or cause to be calculated the rebate amount for the 2019A Bonds, if any, on each computation date in the manner required by Treas. Reg. § 1.148-3 (or any successor provision thereto that is applicable to the 2019A Bonds). For this purpose, a computation date is any date selected by the Finance Officer, provided the first computation date is no later than the fifth anniversary of the date of issue of the 2019A Bonds, a subsequent computation date is no later than five years after the previous computation date and the final computation date is the date that all of the 2019A Bonds are retired. The Finance Officer shall pay over to the United States government, from amounts on deposit in the Excess Investment Earnings Account or other legally available funds, an amount equal to at least 90% of the rebate amount so calculated within 60 days of each computation date (other than the final computation date), and an amount equal to 100% of the rebate amount so calculated within 60 days of the final computation date, in the manner and at the place required by Treas. Reg. § 1.148-3 (or any successor provision thereto that is applicable to the 2019A Bonds). 250 55 4844-4843-7663.3 (c) Private Use or Loan. The Town will not take or permit to be taken any action that would cause the 2019A Bonds to be characterized as private activity bonds within the meaning of Section 141 of the Code, and it will take all actions within its power and permitted by law which are or may be necessary to prevent the 2019A Bonds from being characterized as private activity bonds. Facilities originally financed or refinanced with proceeds of the 2019A Bonds shall not be used in a manner that would cause the 2019A Bonds to be considered as private activity bonds within the meaning of the Code. To this end, the Town, acting by and through the Enterprise, will not permit more than 10% of the proceeds of the 2019A Bonds to be used (directly or indirectly) in the trade or business of non-governmental persons, and will not use (directly or indirectly) any of the proceeds of the 2019A Bonds to make or finance a loan (or deemed loan) to non-governmental persons, in a manner that could cause the 2019A Bonds to be characterized as private activity bonds. For this purpose, a person uses the proceeds of the 2019A Bonds if (i) it owns or leases all or a portion of the Project; (ii) it has actual or beneficial use of all or a portion of the Project pursuant to a management or incentive payment contract, an output contract or another arrangement; or (iii) the proceeds are used to satisfy a primary and unconditional obligation of such person to provide the Project. A person is not treated as using the proceeds for this purpose merely because it uses the Project as a member of the general public; however, use will not be treated as general public use if such person has priority rights or other preferential benefits in respect of the Project pursuant to an arrangement with the Town. The Town shall not make or finance (directly or indirectly) any loans from proceeds of the 2019A Bonds to persons other than governmental persons without an approving opinion of Bond Counsel. (d) Further Actions. The Town, acting by and through the Enterprise, will take all actions within its power and permitted by law which are or may be necessary to assure that interest on the 2019A Bonds at all times remains excludable from gross income for federal income tax purposes, including complying with the provisions of the Tax Compliance Certificate to be executed and delivered by the Town, acting by and through the Enterprise, in connection with the issuance of the 2019A Bonds, the covenants set forth herein and all requirements of the Code that must be satisfied subsequent to the issuance of the 2019A Bonds for interest on the 2019A Bonds to be, or continue to be, excluded from gross income for federal income tax purposes. (e) Information Reporting. The Town will timely file Internal Revenue Form 8038-G with respect to the 2019A Bonds as required by Section 149(e) of the Code. (f) No Federal Guarantee. The 2019A Bonds are not and shall not become directly or indirectly “federally guaranteed.” A 2019A Bond will be considered to be “federally guaranteed” if the payment of principal or interest with respect to such 2019A Bond is guaranteed (in whole or in part) by the United 251 56 4844-4843-7663.3 States of America (or any agency or instrumentality thereof) or if 5% or more of the proceeds of the 2019A Bonds are used in making loans the payment of principal or interest with respect to which is guaranteed (in whole or in part) by the United States of America (or any agency or instrumentality thereof) or if invested (directly or indirectly) in federally insured deposits or accounts. (g) Single Issue. The Town or the Enterprise shall not sell any other tax-exempt obligations within 15 days of the sale of the Bonds pursuant to the same plan of financing with the Bonds and payable from the same source of funds or having substantially the same claim to the same source of funds used to pay the Bonds. (h) Letter of Instructions. The Town will comply with the Letter of Instructions delivered to it on the date of issuance of the 2019A Bonds, including but not limited by the provisions of the Letter of Instructions regarding the application and investment of proceeds of the 2019A Bonds, the calculations, the deposits, the disbursements, the investments and the retention of records described in the Letter of Instructions; provided that, in the event the original Letter of Instructions is superseded or amended by a new Letter of Instructions drafted by, and accompanied by an opinion of Bond Counsel stating that the use of the new Letter of Instructions will not cause the interest on the 2019A Bonds to become includible in gross income for federal income tax purposes, the Town will thereafter comply with the new Letter of Instructions. Notwithstanding any provision of this Section, the Town may rely conclusively on an opinion of Bond Counsel in complying, or in any deviation from complying, with the provisions of this Section. Section 42. Disposal of Property. Except for the use of the Light and Power Facilities, the Communications Facilities and services pertaining thereto in the ordinary course of business, no part of the Light and Power Facilities or the Communications Facilities shall be sold, leased, mortgaged, pledged, encumbered or otherwise disposed of or otherwise alienated, until all of the Bonds have been paid in full, or unless provision has been made therefor, or until the Bonds have otherwise been redeemed; provided, however, that the Town, acting by and through the Enterprise, may sell, exchange or lease at any time and from time-to-time any property or facilities constituting part of the Light and Power Facilities or the Communications Facilities and not needed in the construction, reconstruction or operation thereof; but any proceeds of any such sale or exchange received and not used to replace such property so sold or exchanged shall be deposited in the Power and Communications Enterprise Fund, and any proceeds of any such lease received shall be deposited by the Town, acting by and through the Enterprise, as revenues of the Light and Power Facilities or the Communications Facilities, as the case may be. Notwithstanding the provisions of this Section 42, the Town, acting by and through the Enterprise, may dispose of any facility constituting a part of the Light and Power Facilities or the Communications Facilities; provided that (a) at the time of such disposition such facility has not produced Revenue at least equal to the Operation and Maintenance Expenses reasonably allocable to it for 252 57 4844-4843-7663.3 a period of at least one full fiscal year, and (b) such disposition will not, in the opinion of Bond Counsel, have a material adverse effect upon the federal income tax treatment of interest on the 2019A Bonds. Section 43. Inspection of Records. Any Owner of any of the Bonds or any other securities payable from the Pledged Revenues, or any duly authorized agent or agents of such Owner, shall have the right at all reasonable times to inspect all records, accounts and data relating thereto, concerning the Light and Power Facilities, the Communications Facilities or the Revenue, to make copies of such records, accounts and data at the Owner’s expense, and to inspect the Light and Power Facilities, the properties comprising the Light and Power Facilities, the Communications Facilities, and the properties comprising the Communications Facilities. Section 44. Audits Required. The Town, annually following the close of each Fiscal Year, shall order an audit for the Fiscal Year of the books and accounts pertaining to the Light and Power Facilities and the Communications Facilities to be made forthwith by an Independent Accountant as part of the Town’s annual audit procedure. The Board shall order that the Town’s audit report show the receipts and disbursements for each fund or account pertaining to the Light and Power Facilities and the Communications Facilities or the Revenue. A pro rata portion of the expenses incurred in connection with the Town’s annual audit procedure may be regarded and paid as an Operation and Maintenance Expense. Section 45. Insurance and Reconstruction. Except to the extent that the Town elects to insure itself, the Town shall at all times maintain with responsible insurers all such insurance reasonably required and obtainable within limits and at costs deemed reasonable by the Town as is customarily maintained with respect to light and power facilities, broadband facilities, and services of like character against loss of or damage to the Light and Power Facilities and the Communications Facilities and against public and other liability to the extent at least reasonably necessary to protect the interest of the Town and of each Owner of Bonds or any other security payable from the Pledged Revenues, except as herein otherwise provided. If any revenue generating part of the Light and Power Facilities or the Communications Facilities shall be damaged or destroyed, the Town, acting by and through the Enterprise, shall, as expeditiously as possible, commence and diligently proceed with the repair or replacement of the damaged or destroyed property so as to restore the same to use; provided that no such repair or replacement shall be required if the Town shall determine in good faith that the damaged or destroyed property was not, prior to such damage or destruction, materially contributing to the Pledged Revenues. The proceeds of any insurance appertaining to the Light and Power Facilities and the Communications Facilities shall be payable to the Town, acting by and through the Enterprise, and (except for proceeds of use and occupancy insurance) shall be applied to the necessary costs involved in such repair and replacement, and to the extent not so applied shall (together with the proceeds of any such use and occupancy insurance) be deposited in the Power and Communications Enterprise Fund as Revenue. Nothing herein shall be deemed to be a waiver by the Town or the Enterprise of the protections afforded by the Colorado Governmental Immunity Act. 253 58 4844-4843-7663.3 Section 46. Completion of Project; Estimated Life of Project. The Town, acting by and through the Enterprise, with the proceeds derived from the sale of the Bonds, and any other legally available moneys, including the proceeds derived from the issuance of Parity Bonds, if any, shall proceed promptly and with all due speed cause the Project to be completed without delay to the best of the Town’s ability and with due diligence, as herein provided. The Board hereby determines that the estimated life of the Project is not less than the maximum term of the Bonds permitted hereunder. Section 47. Defeasance. When all Debt Service Requirements of the Bonds have been duly paid, the pledge and lien and all obligations hereunder shall thereby be discharged and the Bonds, shall no longer be deemed to be Outstanding within the meaning of this Ordinance. Payment of any Bond shall be deemed made when the Town, acting by and through the Enterprise, has placed in escrow or in trust with a Trust Bank, located within or without the State, cash or Federal Securities in an amount sufficient (including the known minimum yield available for such purpose from such Federal Securities in which such amount wholly or in part may be initially invested) to pay all Debt Service Requirements of such Bond, as the same become due to the final maturity date of such Bond or upon any Redemption Date as of which the Town, acting by and through the Enterprise, shall have exercised or shall have obligated itself to exercise its option to call such Bond for prior redemption. The Federal Securities shall become due at or prior to the respective times at which the proceeds thereof shall be needed, in accordance with a schedule established and agreed upon between the Town, acting by and through the Enterprise, and such bank at the time of the creation of the escrow or trust, or the Federal Securities shall be subject to redemption at the option of the Owner thereof to assure such availability as so needed to meet such schedule. Nothing herein shall be construed to prohibit a partial defeasance of the Outstanding Bonds in accordance with the provisions of this Section 47. Section 48. Events of Default. Each of the following events is hereby declared to be and to constitute an Event of Default: (a) Nonpayment of Principal. Payment of the principal of any Bond is not made when the same becomes due and payable, either at maturity or by proceedings for prior redemption, or otherwise; (b) Nonpayment of Interest. Payment of any installment of interest on any Bond is not made when the same becomes due and payable; (c) Incapacity To Perform. The Town, acting by and through the Enterprise, for any reason becomes incapable of fulfilling its obligations hereunder; (d) Nonperformance of Duties. The Town, acting by and through the Enterprise, shall have failed to carry out and to perform (or in good faith to begin the performance of) all acts and things lawfully required to be carried out or to be 254 59 4844-4843-7663.3 performed by it under any contract relating to the Revenue or to the Light and Power Facilities, the Communications Facilities or otherwise, including without limitation, this Ordinance, and such failure shall continue for 60 days after receipt of notice from the Owners of 25% in aggregate principal amount of the Bonds then Outstanding; provided that if such failure cannot be cured within such 60 days and if during that period corrective action has commenced to remedy such failure and subsequently is diligently pursued by the Town, acting by and through the Enterprise, to the completion of such performance, an Event of Default shall not be deemed to have occurred; (e) Failure To Reconstruct. The Town, acting by and through the Enterprise, discontinues or unreasonably delays or fails to carry out with reasonable dispatch the reconstruction of any essential part of the Light and Power Facilities or the Communications Facilities which is condemned, destroyed or damaged and is not promptly repaired or replaced (whether such failure to repair the same is due to impracticality of such repair or replacement, or is due to a lack of moneys therefor, or for other reason); (f) Appointment of Receiver. An order or decree is entered by a court of competent jurisdiction, with the consent or acquiescence of the Town, acting by and through the Enterprise, appointing a receiver or receivers for the Light and Power Facilities or the Communications Facilities or for the Revenue and any other moneys subject to the lien to secure the payment of the Bonds, or if any order or decree, having been entered without the consent or acquiescence of the Town, acting by and through the Enterprise, is not vacated or discharged or stayed on appeal within 60 days after entry; or (g) Default of Any Provision. The Town, acting by and through the Enterprise, defaults in the due and punctual performance of any other of the representations, covenants, conditions, agreements and other provisions contained in the Bonds or in this Ordinance on its part to be performed, and if such default continues for 60 days after written notice, specifying such default and requiring the same to be remedied, is given to the Town by the Owners of 25% in aggregate principal amount of the Bonds then Outstanding; provided that if such failure cannot be cured within such 60 days and if during that period corrective action has commenced to remedy such default and subsequently is diligently pursued to the completion of such performance, an Event of Default shall not be deemed to have occurred. Section 49. Remedies for Defaults. Upon the happening and continuance of any of the Events of Default, as provided in Section 48 hereof, then and in every case the Owner or Owners of not less than 25% in aggregate principal amount of the Bonds then Outstanding, including, without limitation, a trustee or trustees therefor, may proceed against the Town and its agents, officers and employees to protect and to enforce the rights of any Owner of Bonds under this Ordinance by mandatory injunction or by other suit, action, or special proceedings in equity or at law, in any court of competent jurisdiction, either for the appointment of a receiver or an operating trustee or 255 60 4844-4843-7663.3 for the specific performance of any covenant or agreement contained herein or for any proper legal or equitable remedy as such Owner or Owners may deem most effectual to protect and to enforce the rights aforesaid, or thereby to enjoin any act or thing which may be unlawful or in violation of any right of any Owner of any Bond, or to require the Town, acting by and through the Enterprise, to act as if it were the trustee of an express trust, or any combination of such remedies or as otherwise may be authorized by any statute or other provision of law. All such proceedings at law or in equity shall be instituted, had and maintained for the equal benefit of all Owners of the Bonds and any Parity Bonds then Outstanding. Any receiver or operating trustee appointed in any proceedings to protect the rights of such Owners hereunder may collect, receive and apply all Revenue arising after the appointment of such receiver or operating trustee in the same manner as the Town itself might do. The consent to any such appointment is hereby expressly granted by the Town, acting by and through the Enterprise. Section 50. Rights and Privileges Cumulative. The failure of any Owner of any Outstanding Bond to proceed in any manner herein provided shall not relieve the Town or any of its officers, agents or employees of any liability for failure to perform to carry out any duty, obligation or other commitment. Each right or privilege of any such Owner or trustee therefor is in addition and is cumulative to any other right or privilege, and the exercise of any right or privilege by or on behalf of any Owner shall not be deemed a waiver of any other right or privilege thereof. Each Owner of any Bond shall be entitled to all of the privileges, rights and remedies provided or permitted in this Ordinance and as otherwise provided or permitted by law or in equity or by statute, subject to the applicable provisions concerning the Revenue and the proceeds of the Bonds. Nothing herein affects or impairs the right of any Owner of any Bond to enforce the payment of the Debt Service Requirements due in connection with such Bond or the obligation of the Town to pay the Debt Service Requirements of such Bond to the Owner thereof at the time and the place expressed in such Bond. Section 51. Duties Upon Default. Upon the happening of any of the Events of Default as provided in Section 48 hereof, the Town, acting by and through the Enterprise, in addition, will do and perform all proper acts on behalf of and for the Owners of the Outstanding Bonds to protect and to preserve the security created for the payment of their Bonds and to insure the payment of the Debt Service Requirements promptly as the same become due. During any period of default, so long as any of the Bonds, as to any Debt Service Requirements, are Outstanding, except to the extent it may be unlawful to do so, all Pledged Revenues shall be paid into the 2019A and 2019B Principal and Interest Accounts on an equitable and prorated basis, and used for the purposes therein provided. If the Town, acting by and through the Enterprise, fails or refuses to proceed as in this Section 51 provided, the Owner or Owners of not less than 25% in aggregate principal amount of the Bonds then Outstanding, after demand in writing, may proceed to protect and to enforce the rights of the Owners of the Bonds as herein above provided; and to that end any such Owners of Outstanding Bonds shall be subrogated to all rights of the Town under any agreement or contract involving the Pledged Revenues entered into prior to the effective date of this Ordinance or thereafter while any of the Bonds are Outstanding. Nothing herein requires the Town, acting by and through the Enterprise, to proceed as provided herein if it determines in good faith 256 61 4844-4843-7663.3 and without any abuse of its discretion that if it so proceeds it is more likely than not to incur a net loss rather than a net gain or that such action is likely to affect materially and prejudicially the Owners of the Outstanding Bonds or any Outstanding Parity Bonds. Section 52. Amendments of Ordinance Not Requiring Consent of Bond Owners. The Town, acting by and through the Enterprise, may, without the consent of, or notice to, the Owners of the Bonds, adopt an ordinance supplemental hereto (which amendments shall thereafter form a part hereof) for any one or more or all of the following purposes: (a) to cure any ambiguity, to cure, correct or supplement any formal defect or omission or inconsistent provision contained in this Ordinance, to make any provision necessary or desirable due to a change in law, to make any provisions with respect to matters arising under this Ordinance, or to make any provisions for any other purpose, if such provisions are necessary or desirable and do not materially adversely affect the interests of the Owners of the Bonds; (b) to subject to this Ordinance or pledge to the payment of the Bonds additional revenues, properties or collateral; (c) to grant or confer upon the Owners any additional rights, remedies, powers or authority that may be lawfully granted to or conferred upon the Owners; (d) to facilitate the designation of a substitute securities depository or to terminate the book-entry registration system for the Bonds; (e) to facilitate the issuance of Parity Bonds permitted to be issued pursuant to the section hereof entitled “Issuance of Parity Bonds;” (f) to facilitate the funding of the 2019A and 2019B Debt Service Reserve Accounts or the substitution of one source of funding of the 2019A and 2019B Debt Service Reserve Accounts for another permitted source; (g) to maintain the then existing or to secure a higher rating of the Bonds by any nationally recognized securities rating agency; or (h) to make any other change that does not materially adversely affect the Owners of the Bonds. Section 53. Amendment of Ordinance Requiring Consent of Bond Owners. Exclusive of the amendatory ordinances covered by Section 52 hereof, this Ordinance may be amended or modified by ordinances or other legislative measures duly adopted by the Board, without receipt by it of any additional consideration, but with the written consent of the Owners of 66% in aggregate principal amount of the Bonds then Outstanding at the time of the adoption of such amendatory ordinance; provided that no such amendatory ordinance shall permit: 257 62 4844-4843-7663.3 (a) Changing payment. A change in the maturity or in the terms of redemption of the principal of any Outstanding Bond or any installment of interest thereon; (b) Reducing Return. A reduction in the principal amount of any Bond or the rate of interest thereon without the consent of the Owner of the Bond; (c) Prior Lien. The creation of a lien upon or a pledge of revenues ranking prior to the lien or to the pledge created by this Ordinance; (d) Modifying Amendment Terms. A reduction of the principal amount or percentages of Bonds, or any modification otherwise affecting the description of Bonds, otherwise changing the consent of the Owners of Bonds, which may be required herein for any amendment hereto; (e) Priorities Between Bonds. The establishment of priorities as between Bonds issued and Outstanding under the provisions of this Ordinance; or (f) Partial Modification. Any modifications otherwise materially and prejudicially affecting the rights or privileges of the Owners of less than all of the Bonds then Outstanding. Whenever the Board proposes to amend or modify this Ordinance under the provisions of this Section 53 it shall give notice of the proposed amendment by mailing such notice to the Underwriter, or to any successor thereof known to the Finance Officer, and to all Owners of Bonds at the addresses appearing on the registration books of the Town, acting by and through the Enterprise, or by electronic means to DTC or its successors. Such notice shall briefly set forth the nature of the proposed amendment and shall state that a copy of the proposed amendatory ordinance or other instrument is on file in the office of the Finance Officer for public inspection. Section 54. Time for and Consent to Amendment. Whenever at any time within one year from the date of the completion of the notice required to be given by Section 53 hereof there shall be filed in the office of the Finance Officer an instrument or instruments executed by the Owners of at least 66% in aggregate principal amount of the Bonds then Outstanding, which instrument or instruments shall refer to the proposed amendatory ordinance or other instrument described in such notice and shall specifically consent to and approve the adoption of such ordinance or other instrument, thereupon, but not otherwise, the Board may adopt such amendatory ordinance or instrument and such ordinance or instrument shall become effective. If the Owners of at least 66% in aggregate principal amount of the Bonds then Outstanding, at the time of the adoption of such amendatory ordinance or instrument, or the predecessors in title of such Owners, shall have consented to and approved the adoption thereof as herein provided, no Owner of any Bond, whether or not such Owner shall have consented to or shall have revoked any consent as herein provided, shall have any right or interest to object to the adoption of such amendatory ordinance or other instrument or to object to 258 63 4844-4843-7663.3 any of the terms or provisions therein contained or to the operation thereof or to enjoin or restrain the Town, acting by and through the Enterprise, from taking any action pursuant to the provisions thereof. Any consent given by the Owner of a Bond pursuant to the provisions hereof shall be irrevocable for a period of six months from the date of the completion of the notice above provided for and shall be conclusive and binding upon all future Owners of the same Bond during such period. Such consent may be revoked at any time after six months from the completion of such notice, by the Owner who gave such consent or by a successor in title, by filing notice of such revocation with the Finance Officer, but such revocation shall not be effective if the Owners of 66% in aggregate principal amount of the Bonds Outstanding, prior to the attempted revocation, shall have consented to and approved the amendatory instrument referred to in such revocation. Section 55. Unanimous Consent. Notwithstanding anything in the foregoing provisions contained, the terms and the provisions of this Ordinance, or of any ordinance or instrument amendatory thereof, and the rights and the obligations of the Town, acting by and through the Enterprise, and of the Owners of the Bonds may be modified or amended in any respect upon the adoption by the Board, and upon the filing with the Finance Officer, of an instrument to that effect and with the consent of the Owners of all the then Outstanding Bonds, such consent to be given in the manner provided in Section 54 hereof. Section 56. Exclusion of Bonds. At the time of any consent or other action taken hereunder the Registrar shall furnish to the Finance Officer a certificate, upon which the Finance Officer may rely, describing all Bonds to be excluded for the purpose of consent or other action or any calculation of Outstanding Bonds provided for hereunder, and, with respect to such excluded Bonds, the Town, acting by and through the Enterprise, shall not be entitled or required with respect to such Bonds to give or obtain any consent or to take any other action provided for hereunder. Section 57. Notation on Bonds. Any of the Bonds delivered after the effective date of any action taken as provided in Section 53, 54 or 55, or Bonds Outstanding at the effective date of such action, may bear a notation thereon by endorsement or otherwise in form approved by the Board as to such action; and if any such Bond so executed and delivered after such date does not bear such notation, then upon demand of the Owner of any Bond Outstanding at such effective date and upon presentation of his or her Bond for such purpose at the principal corporate trust operations office of the Town, suitable notation shall be made on such Bond by the Finance Officer as to any such action. If the Board so determines, new Bonds so modified as in the opinion of the Board to conform to such action shall be prepared, executed and delivered; and upon demand of the Owner of any Bond then Outstanding, shall be exchanged without cost to such Owner for Bonds then Outstanding upon surrender of such Outstanding Bonds. Section 58. No Pledge of Property. The payment of the Bonds is not secured by an encumbrance, mortgage, or other pledge of property of the Town or the Enterprise, except for the Pledged Revenues. No property of the Town or the 259 64 4844-4843-7663.3 Enterprise, subject to such exception, is pledged for the payment of the Bonds or shall be liable to be forfeited or taken in payment of the Bonds. Section 59. Authorization To Execute Documents. The Mayor and the Town Clerk, other officers of the Town, and the members of the Board are hereby authorized and directed to take any and all actions necessary or appropriate to effectuate the provisions of this Ordinance, including but not limited to: (a) the execution of the Paying Agency Agreement, the Continuing Disclosure Agreement, the Bond Purchase Agreement, and the Official Statement; and (b) the execution of such certificates and affidavits as reasonably may be required by the Underwriter. The Town Clerk is hereby authorized and directed to attest, as necessary, all signatures and acts of the Mayor or any official of the Board or the Town in connection with the matters authorized by this Ordinance, and to place the seal of the Town, as necessary, on the documents authorized and approved by this Ordinance and all other additional certificates, documents and other papers associated with the transactions and other matters authorized by this Ordinance. The Mayor or Mayor Pro Tem or the Town Administrator or the Finance Officer of the Town and all other officials, employees and agents of the Board or the Town are hereby authorized to execute and deliver for and on behalf of the Town or the Enterprise any and all additional certificates, documents and other papers, including, but not limited to a commitment by an insurance company to issue a surety bond, insurance policy or similar instrument for deposit in the 2019A and 2019B Debt Service Reserve Accounts for the payment of the respective series of the Bonds, and any agreement concerning the deposit and investment of funds in connection with the transactions contemplated by this Ordinance, and to perform all other acts that they may deem necessary or appropriate in order to implement and carry out the transactions and other matters authorized or contemplated by this Ordinance. Section 60. Ratification and Approval of Prior Actions. All actions heretofore taken by the officers of the Town and members of the Board, consistent with the provisions of this Ordinance, relating to the authorization, sale, issuance and delivery of the Bonds, are hereby ratified, approved and confirmed. Section 61. Approval of Official Statement. The Board hereby approves and authorizes the distribution and use of the Preliminary Official Statement and authorizes the preparation of a final Official Statement containing any updated information regarding items described in the Preliminary Official Statement which become known to the Town, acting by and through the Enterprise, after the date of the Preliminary Official Statement but prior to the date of delivery of the Bonds. Copies of the final Official Statement are hereby authorized to be distributed by the Underwriter to all interested persons in connection with the sale of the Bonds. Section 62. Ordinance Irrepealable. After the Bonds are issued, this Ordinance shall be and remain irrepealable until the Bonds and the interest accrued thereon shall have been fully paid, satisfied and discharged. Section 63. Repealer. All acts, orders, ordinances, or parts thereof, in conflict with this Ordinance are hereby repealed, but only to the extent of such conflict. 260 65 4844-4843-7663.3 Section 64. Severability. If one or more sections or parts of this Ordinance shall be adjudged unenforceable or invalid, such judgment shall not affect, impair or invalidate the remaining provisions of this Ordinance, it being the intention that the various provisions hereof are severable. Section 65. Recording and Authentication. This Ordinance, immediately upon its passage, shall be recorded in the Town book of Ordinances kept for that purpose, and shall be authenticated by the signatures of the Mayor and of the Town Clerk. [Remainder of page intentionally blank] 261 66 4844-4843-7663.3 Section 66. Effective Date. Following its adoption, this Ordinance shall take effect and be in force on the date that is 30 days after its publication. INTRODUCED, READ BY TITLE, APPROVED AND ADOPTED on the 24th day of September, 2019. [SEAL] Attest: TOWN OF ESTES PARK, COLORADO, ACTING BY AND THROUGH ITS POWER AND COMMUNICATIONS ENTERPRISE Town Clerk Mayor 262 4844-4843-7663.3 APPENDIX A TABLE OF CONTENTS Section 1. Definitions ................................................................................................. 3 Section 2. Construction ............................................................................................ 11 Section 3. Authorization ........................................................................................... 12 Section 4. Bond Details ........................................................................................... 12 Section 5. Book Entry .............................................................................................. 13 Section 6. Payment of Bonds; Paying Agent and Registrar ..................................... 13 Section 7. Prior Redemption .................................................................................... 14 Section 8. Forms of the 2019A Bonds and the 2019B Bonds .................................. 15 Section 9. Authentication ......................................................................................... 32 Section 10. Delivery of Bonds .................................................................................... 32 Section 11. Disposition and Investment of Proceeds ................................................. 32 Section 12. Funds and Accounts ............................................................................... 32 Section 13. Places and Times of Deposits ................................................................ 40 Section 14. Investment of Funds ............................................................................... 40 Section 15. No Liability for Losses Incurred in Performing Terms of Ordinance ........ 41 Section 16. Character of Funds ................................................................................. 41 Section 17. First Lien on Pledged Revenues; Equality of Bonds ............................... 41 Section 18. Issuance of Parity Bonds ........................................................................ 42 Section 19. Effect of Certification of Revenues .......................................................... 43 Section 20. Subordinate Securities Permitted ........................................................... 43 Section 21. Superior Securities Prohibited ................................................................ 43 Section 22. Supplemental Ordinances ....................................................................... 43 Section 23. Rate Maintenance Covenant .................................................................. 44 Section 24. Collection of Charges.............................................................................. 44 Section 25. Competent Management ........................................................................ 44 Section 26. Performance of Duties ............................................................................ 44 Section 27. Costs of Bond Issuance and of Performance .......................................... 45 Section 28. Contractual Obligations ........................................................................... 45 Section 29. Further Assurances ................................................................................ 45 Section 30. Conditions Precedent ............................................................................. 45 Section 31. Efficient Operation and Maintenance ...................................................... 45 Section 32. Records and Accounts ............................................................................ 46 Section 33. Rules, Regulations and other Details ...................................................... 46 Section 34. Payment of Governmental Charges ........................................................ 46 Section 35. Protection of Security; Enterprise Status ................................................ 46 Section 36. Accumulation of Interest Claims ............................................................. 47 Section 37. Prompt Payment of Bonds ...................................................................... 47 Section 38. Additional Securities ............................................................................... 47 Section 39. Other Liens ............................................................................................. 47 Section 40. Surety Bonds .......................................................................................... 47 Section 41. Federal Income Tax Covenants .............................................................. 47 Section 42. Disposal of Property................................................................................ 49 263 ii 4844-4843-7663.3 Section 43. Inspection of Records ............................................................................. 50 Section 44. Audits Required ...................................................................................... 50 Section 45. Insurance and Reconstruction ................................................................ 50 Section 46. Completion of Project; Estimated Life of Project ..................................... 51 Section 47. Defeasance ............................................................................................. 51 Section 48. Events of Default .................................................................................... 51 Section 49. Remedies for Defaults ............................................................................ 52 Section 50. Rights and Privileges Cumulative ........................................................... 53 Section 51. Duties Upon Default ................................................................................ 53 Section 52. Amendments of Ordinance Not Requiring Consent of Bond Owners ..... 54 Section 53. Amendment of Ordinance Requiring Consent of Bond Owners .............. 54 Section 54. Time for and Consent to Amendment ..................................................... 55 Section 55. Unanimous Consent ............................................................................... 56 Section 56. Exclusion of Bonds ................................................................................. 56 Section 57. Notation on Bonds .................................................................................. 56 Section 58. No Pledge of Property............................................................................. 56 Section 59. Authorization To Execute Documents ..................................................... 56 Section 60. Ratification and Approval of Prior Actions ............................................... 57 Section 61. Approval of Official Statement ................................................................ 57 Section 62. Ordinance Irrepealable ........................................................................... 57 Section 63. Repealer ................................................................................................. 57 Section 64. Severability ............................................................................................. 57 Section 65. Recording and Authentication ................................................................. 57 Section 66. Effective Date ......................................................................................... 58 264 PROCEDURE FOR PUBLIC HEARING Applicable items include: Rate Hearings, Code Adoption, Budget Adoption 1. MAYOR. The next order of business will be the public hearing on ORDINANCE 25-19 ADOPTING TITLE 18 OF THE ESTES PARK MUNICIPAL CODE RELATING TO FLOOD DAMAGE PREVENTION At this hearing, the Board of Trustees shall consider the information presented during the public hearing, from the Town staff, public comment, and written comments received on the application. Any member of the Board may ask questions at any stage of the public hearing which may be responded to at that time. Mayor declares the Public Hearing open. 2. STAFF REPORT. Review the staff report. 3. PUBLIC COMMENT. Any person will be given an opportunity to address the Board concerning the Ordinance. All individuals must state their name and address for the record. Comments from the public are requested to be limited to three minutes per person. 4. MAYOR. Ask the Town Clerk whether any communications have been received in regard to the Ordinance which are not in the Board packet. Ask the Board of Trustees if there are any further questions concerning the Ordinance. Indicate that all reports, statements, exhibits, and written communications presented will be accepted as part of the record. Declare the public hearing closed. Request Board consider a motion. 55 265 7.SUGGESTED MOTION. Suggested motion(s) are set forth in the staff report. 8.DISCUSSION ON THE MOTION. Discussion by the Board on the motion. 9.VOTE ON THE MOTION. Vote on the motion or consideration of another action. 56 266 PUBLIC WORKS Memo To: Honorable Mayor Jirsa Board of Trustees Through: Town Administrator Machalek From:David Hook, PE, Public Works Engineering Manager Greg Muhonen, PE, Public Works Director Date:September 24, 2019 RE:Ordinance #25-19 Adopting Title 18 of the Estes Park Municipal Code Relating to Flood Damage Prevention (Mark all that apply) PUBLIC HEARING ORDINANCE LAND USE CONTRACT/AGREEMENT RESOLUTION OTHER______________ QUASI-JUDICIAL YES NO Objective: Adopt Ordinance 25-19 revising the Town’s floodplain regulations. Present Situation: At the June 25 and July 9 Town Board Study Sessions, Public Works staff discussed with the Town Board several components of the Town’s floodplain management program, including the Town’s participation in the National Flood Insurance Program (NFIP). We also discussed FEMA’s Community Rating System (CRS) (in which the Town does not currently participate), our current floodplain regulations, the Community Assistance Visit (CAV) conducted by the Colorado Water Conservation Board (CWCB) and the Federal Emergency Management Agency (FEMA) this past February, and staff’s recent efforts to update our floodplain regulations to meet the minimum stan dards of the NFIP. From those discussions, staff concluded the following: •The Town should continue participation in the NFIP and thus continue providing comprehensive, proactive floodplain management services to the Estes Park community. •The Board did not have an immediate interest in pursuing Town participation in the CRS, but this opportunity could be a future consideration. •The Board did not have suggestions for modifications to the proposed draft regulations. •The Board accepted the CWCB & FEMA recommendations to use the Draft CHAMP data as part of the regulatory basis for establishing the Special Flood 57 267 Hazard Area in Estes Park in the interim until a new Flood Insurance Study (FIS) and corresponding Flood Insurance Rate Maps (FIRM) are adopted by FEMA. Subsequent to the July 9 discussion, staff has coordinated with Town Attorney Kramer and representatives of CWCB and FEMA regarding final edits to the proposed floodplain regulations. Changes to the draft regulations since the July discussion include: developing the text for 18.04.040 to address incorporating the draft CHAMP data into the regulations, several other additions and deletions suggested by Town Attorney Kramer, and some minor formatting, grammar, and spelling edits. Proposal: Public Works staff proposes to replace our existing floodplain regulations in the Estes Park Municipal Code with the revised regulations presented in Exhibit A to the attached Ordinance. Advantages: • Maintain eligibility for NFIP participation. • Improved protection of lives and property in flood -prone areas. • Assigns the cost of future Letters of Map Revisions (LOMRs) on projects requiring a Floodplain Development Permit to the applicant instead of the Town. Disadvantages: • Increased regulatory burden on proposed improvements within the areas of special flood hazard. • Applicants for Floodplain Development Permits bear the cost of preparing LOMRs. • More properties will be subject to flood insurance obligations sooner and at a higher cost as compared to regulating to only the existing effective FIS & FIRM. Action Recommended: PW staff recommends that the Town Board approve the Ordinance and Exhibit A as presented. Finance/Resource Impact: As proposed, implementing the proposed floodplain regulations are expected to have a negligible financial impact on the Town budget. Future costs to others for flood insurance and preparing LOMRs are expected to be significant and a necessary consequence of maintaining membership in the NFIP. Level of Public Interest The level of public interest is expected to be moderate while the ramification of this decision can be financially significant to impacted property owners. Sample Motion: I move for the approval/denial of Ordinance 25-19. Attachments: Ordinance 25-19 with Exhibit A. 58 268 ORDINANCE NO. 25-19 AN ORDINANCE REPEALING CHAPTER 17.28 AND ADDING TITLE 18 OF THE MUNICIPAL CODE OF THE TOWN OF ESTES PARK RELATING TO FLOODPLAIN REGULATIONS WHEREAS, the Legislature of the State of Colorado has, in Title 29, Article 20 of the Colorado Revised Statutes, delegated the responsibility of local governmental units to adopt regulations designed to minimize flood losses; and WHEREAS, the flood hazard areas of the Town of Estes Park are subject to periodic inundation, which can result in loss of life and property, health and safety hazards, disruption of commerce and governmental services, and extraordinary public expenditures for flood protection and relief, all of which adversely affect the health, safety and general welfare of the public; and WHEREAS, these flood losses are created by the cumulative effect of obstructions in floodplains which cause an increase in flood heights and velocities, and by the occupancy of flood hazard areas by uses vulnerable to floods and hazardous to other lands because they are inadequately elevated, floodproofed or otherwise protected from flood damage; and WHEREAS, the Board of Trustees of the Town of Estes Park, Colorado has determined that it is in the best interest of the Town to amend certain sections of the Municipal Code of the Town of Estes Park, Colorado. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF TRUSTEES OF THE TOWN OF ESTES PARK, COLORADO AS FOLLOWS: Section 1: Section 17.28 (“Floodplain Regulations”) of the Municipal Code is hereby repealed in its entirety. Section 2: The Municipal Code is hereby amended by the addition of Title 18 (“Flood Damage Prevention”), included herein as Exhibit A. Section 3: This amendment to the Estes Park Municipal Code shall take effect and be enforced thirty (30) days after its adoption and publication. PASSED AND ADOPTED by the Board of Trustees of the Town of Estes Park, Colorado this ____ day of _______________, 2019. TOWN OF ESTES PARK, COLORADO By: Mayor 59 269 ATTEST: Town Clerk I hereby certify that the above Ordinance was introduced and read at a regular meeting of the Board of Trustees on the day of , 2019 and published in a newspaper of general circulation in the Town of Estes Park, Colorado, on the day of , 2019, all as required by the Statutes of the State of Colorado. Town Clerk 60 270 EXHIBIT A Title 18 – Flood Damage Prevention Chapter 18.04 - Floodplain Regulations 18.04.010 - Purpose. It is the purpose of this ordinance to promote public health, safety and general welfare and to minimize public and private losses due to flood conditions in specific areas by provisions designed to: 1. Protect human life and health; 2. Minimize expenditure of public money for costly flood control projects; 3. Minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public; 4. Minimize prolonged business interruptions; 5. Minimize damage to critical facilities, infrastructure and other public facilities such as water, sewer and gas mains; electric and communications stations; and streets and bridges located in floodplains; 6. Help maintain a stable tax base by providing for the sound use and development of flood- prone areas in such a manner as to minimize future flood blight areas; and 7. Ensure that potential buyers are notified that property is located in a flood hazard area. In order to accomplish its purposes, this ordinance uses the following methods: 1. Restrict or prohibit uses that are dangerous to health, safety or property in times of flood, or cause excessive increases in flood heights or velocities; 2. Require that uses vulnerable to floods, including facilities which serve such uses, be protected against flood damage at the time of initial construction; 3. Control the alteration of natural floodplains, stream channels, and natural protective barriers, which are involved in the accommodation of flood waters; 4. Control filling, grading, dredging and other development which may increase flood damage; 5. Prevent or regulate the construction of flood barriers which will unnaturally divert flood waters or which may increase flood hazards to other lands. 18.04.020 – Definitions. Unless specifically defined below, words or phrases used in this ordinance shall be interpreted to give them the meaning they have in common usage and to give this ordinance its most reasonable application. 100-YEAR FLOOD - A flood having a recurrence interval that has a one-percent chance of being equaled or exceeded during any given year (1-percent-annual-chance flood). The terms "one- hundred-year flood" and "one percent chance flood" are synonymous with the term "100-year flood." The term does not imply that the flood will necessarily happen once every one hundred years. 61 271 100-YEAR FLOODPLAIN - The area of land susceptible to being inundated as a result of the occurrence of a one-hundred-year flood. 500-YEAR FLOOD - A flood having a recurrence interval that has a 0.2-percent chance of being equaled or exceeded during any given year (0.2-percent-chance-annual-flood). The term does not imply that the flood will necessarily happen once every five hundred years. 500-YEAR FLOODPLAIN - The area of land susceptible to being inundated as a result of the occurrence of a five-hundred-year flood. ADDITION - Any activity that expands the enclosed footprint or increases the square footage of an existing structure. ALLUVIAL FAN FLOODING - A fan-shaped sediment deposit formed by a stream that flows from a steep mountain valley or gorge onto a plain or the junction of a tributary stream with the main stream. Alluvial fans contain active stream channels and boulder bars, and recently abandoned channels. Alluvial fans are predominantly formed by alluvial deposits and are modified by infrequent sheet flood, channel avulsions and other stream processes. AREA OF SHALLOW FLOODING - A designated Zone AO or AH on a community's Flood Insurance Rate Map (FIRM) with a one percent chance or greater annual chance of flooding to an average depth of one to three feet where a clearly defined channel does not exist, where the path of flooding is unpredictable and where velocity flow may be evident. Such flooding is characterized by ponding or sheet flow. BASE FLOOD – The flood which has a one percent chance of being equaled or exceeded in any given year (also known as a 100-year flood). This term is used in the National Flood Insurance Program (NFIP) to indicate the minimum level of flooding to be used by a community in its floodplain management regulations. BASE FLOOD ELEVATION (BFE) - The elevation shown on a FEMA Flood Insurance Rate Map for Zones AE, AH, A1-A30, AR, AR/A, AR/AE, AR/A1-A30, AR/AH, AR/AO, V1-V30, and VE that indicates the water surface elevation resulting from a flood that has a one percent chance of equaling or exceeding that level in any given year. BASEMENT - Any area of a building having its floor sub-grade (below ground level) on all sides. CHANNEL - The physical confine of stream or waterway consisting of a bed and stream banks, existing in a variety of geometries. CHANNELIZATION - The artificial creation, enlargement or realignment of a stream channel. CODE OF FEDERAL REGULATIONS (CFR) - The codification of the general and permanent Rules published in the Federal Register by the executive departments and agencies of the Federal Government. It is divided into 50 titles that represent broad areas subject to Federal regulation. 62 272 COMMUNITY - Any political subdivision in the state of Colorado that has authority to adopt and enforce floodplain management regulations through zoning, including, but not limited to, cities, towns, unincorporated areas in the counties, Indian tribes and drainage and flood control districts. CONDITIONAL LETTER OF MAP REVISION (CLOMR) - FEMA's comment on a proposed project, which does not revise an effective floodplain map, that would, upon construction, affect the hydrologic or hydraulic characteristics of a flooding source and thus result in the modification of the existing regulatory floodplain. CRITICAL FACILITY – A structure or related infrastructure, but not the land on which it is situated, as specified in 18.04.230 that if flooded may result in significant hazards to public health and safety or interrupt essential services and operations for the community at any time before, during and after a flood. See 18.04.230. DEVELOPMENT - Any man-made change in improved and unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials. DFIRM DATABASE - Database (usually spreadsheets containing data and analyses that accompany DFIRMs). The FEMA Mapping Specifications and Guidelines outline requirements for the development and maintenance of DFIRM databases. DIGITAL FLOOD INSURANCE RATE MAP (DFIRM) - FEMA digital floodplain map. These digital maps serve as “regulatory floodplain maps” for insurance and floodplain management purposes. ELEVATED BUILDING - A non-basement building (i) built, in the case of a building in Zones A1-30, AE, A, A99, AO, AH, B, C, X, and D, to have the top of the elevated floor above the ground level by means of pilings, columns (posts and piers), or shear walls parallel to the flow of the water and (ii) adequately anchored so as not to impair the structural integrity of the building during a flood of up to the magnitude of the base flood. In the case of Zones A1-30, AE, A, A99, AO, AH, B, C, X, and D, "elevated building" also includes a building elevated by means of fill or solid foundation perimeter walls with openings sufficient to facilitate the unimpeded movement of flood waters. EXISTING MANUFACTURED HOME PARK OR SUBDIVISION - A manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including, at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed before the effective date of the floodplain management regulations adopted by a community. EXPANSION TO AN EXISTING MANUFACTURED HOME PARK OR SUBDIVISION- The preparation of additional sites by the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads). 63 273 FEDERAL REGISTER - The official daily publication for Rules, proposed Rules, and notices of Federal agencies and organizations, as well as executive orders and other presidential documents. FEMA - Federal Emergency Management Agency, the agency responsible for administering the National Flood Insurance Program. FLOOD OR FLOODING - A general and temporary condition of partial or complete inundation of normally dry land areas from: 1. The overflow of water from channels and reservoir spillways; 2. The unusual and rapid accumulation or runoff of surface waters from any source; or 3. Mudslides or mudflows that occur from excess surface water that is combined with mud or other debris that is sufficiently fluid so as to flow over the surface of normally dry land areas (such as earth carried by a current of water and deposited along the path of the current). FLOOD INSURANCE RATE MAP (FIRM) – An official map of a community, on which the Federal Emergency Management Agency has delineated both the Special Flood Hazard Areas and the risk premium zones applicable to the community. FLOOD INSURANCE STUDY (FIS) - The official report provided by the Federal Emergency Management Agency. The report contains the Flood Insurance Rate Map as well as flood profiles for studied flooding sources that can be used to determine Base Flood Elevations for some areas. FLOODPLAIN OR FLOOD-PRONE AREA - Any land area susceptible to being inundated as the result of a flood, including the area of land over which floodwater would flow from the spillway of a reservoir. FLOODPLAIN ADMINISTRATOR - The community official designated by title to administer and enforce the floodplain management regulations. FLOODPLAIN DEVELOPMENT PERMIT – A permit required before construction or development begins within any Special Flood Hazard Area (SFHA). Permits are required to ensure that proposed development projects meet the requirements of the NFIP and this floodplain management ordinance. FLOODPLAIN MANAGEMENT - The operation of an overall program of corrective and preventive measures for reducing flood damage, including but not limited to emergency preparedness plans, flood control works and floodplain management regulations. FLOODPLAIN MANAGEMENT REGULATIONS - Zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as a floodplain ordinance, grading ordinance and erosion control ordinance) and other applications of police power. The term describes such state or local regulations, in any combination thereof, which provide standards for the purpose of flood damage prevention and reduction. FLOOD CONTROL STRUCTURE - A physical structure designed and built expressly or 64 274 partially for the purpose of reducing, redirecting, or guiding flood flows along a particular waterway. These specialized flood modifying works are those constructed in conformance with sound engineering standards. FLOODPROOFING - Any combination of structural and/or non-structural additions, changes, or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures and their contents. FLOODWAY (REGULATORY FLOODWAY) - The channel of a river or other watercourse and adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than a designated height. The Colorado statewide standard for the designated height to be used for all newly studied reaches shall be one-half foot (six inches). Letters of Map Revision to existing floodway delineations may continue to use the floodway criteria in place at the time of the existing floodway delineation. FREEBOARD - The vertical distance in feet above a predicted water surface elevation intended to provide a margin of safety to compensate for unknown factors that could contribute to flood heights greater than the height calculated for a selected size flood such as debris blockage of bridge openings and the increased runoff due to urbanization of the watershed. FUNCTIONALLY DEPENDENT USE - A use which cannot perform its intended purpose unless it is located or carried out in close proximity to water. The term includes only docking facilities, port facilities that are necessary for the loading and unloading of cargo or passengers, and ship building and ship repair facilities, but does not include long-term storage or related manufacturing facilities. HIGHEST ADJACENT GRADE – The highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure. HISTORIC STRUCTURE - Any structure that is: 1. Listed individually in the National Register of Historic Places (a listing maintained by the Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register; 2. Certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary to qualify as a registered historic district; 3. Individually listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of Interior; or 4. Individually listed on a local inventory of historic places in communities with historic preservation programs that have been certified either: a. By an approved state program as determined by the Secretary of the Interior or; b. Directly by the Secretary of the Interior in states without approved programs. LETTER OF MAP REVISION (LOMR) - FEMA's official revision of an effective Flood Insurance Rate Map (FIRM), or Flood Boundary and Floodway Map (FBFM), or both. LOMRs 65 275 are generally based on the implementation of physical measures that affect the hydrologic or hydraulic characteristics of a flooding source and thus result in the modification of the existing regulatory floodway, the effective Base Flood Elevations (BFEs), or the Special Flood Hazard Area (SFHA). LETTER OF MAP REVISION BASED ON FILL (LOMR-F) – FEMA’s modification of the Special Flood Hazard Area (SFHA) shown on the Flood Insurance Rate Map (FIRM) based on the placement of fill outside the existing regulatory floodway. LEVEE – A man-made embankment, usually earthen, designed and constructed in accordance with sound engineering practices to contain, control, or divert the flow of water so as to provide protection from temporary flooding. For a levee structure to be reflected on the FEMA FIRMs as providing flood protection, the levee structure must meet the requirements set forth in 44 CFR 65.10. LEVEE SYSTEM - A flood protection system which consists of a levee, or levees, and associated structures, such as closure and drainage devices, which are constructed and operated in accordance with sound engineering practices. LOWEST FLOOR - The lowest floor of the lowest enclosed area (including basement). Any floor used for living purposes which includes working, storage, sleeping, cooking and eating, or recreation or any combination thereof. This includes any floor that could be converted to such a use such as a basement or crawl space. The lowest floor is a determinate for the flood insurance premium for a building, home or business. An unfinished or flood resistant enclosure, usable solely for parking or vehicles, building access or storage in an area other than a basement area is not considered a building's lowest floor; provided that such enclosure is not built so as to render the structure in violation of the applicable non-elevation design requirement of Section 60.3 of the National Flood insurance Program regulations. MANUFACTURED HOME - A structure transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when connected to the required utilities. The term "manufactured home" does not include a "recreational vehicle". MANUFACTURED HOME PARK OR SUBDIVISION - A parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale. MEAN SEA LEVEL - For purposes of the National Flood Insurance Program, the North American Vertical Datum (NAVD) of 1988 or other datum, to which Base Flood Elevations shown on a community's Flood Insurance Rate Map are referenced. MATERIAL SAFETY DATA SHEET (MSDS) – A form with data regarding the properties of a particular substance. An important component of product stewardship and workplace safety, it is intended to provide workers and emergency personnel with procedures for handling or working with that substance in a safe manner, and includes information such as physical data (melting point, boiling point, flash point, etc.), toxicity, health effects, first aid, reactivity, storage, disposal, protective equipment, and spill-handling procedures. NATIONAL FLOOD INSURANCE PROGRAM (NFIP) – FEMA’s program of flood insurance coverage and floodplain management administered in conjunction with the Robert T. Stafford 66 276 Relief and Emergency Assistance Act. The NFIP has applicable Federal regulations promulgated in Title 44 of the Code of Federal Regulations. The U.S. Congress established the NFIP in 1968 with the passage of the National Flood Insurance Act of 1968. NEW CONSTRUCTION – The construction of a new structure (including the placement of a mobile home) or facility or the replacement of a structure or facility which has been totally destroyed. NEW MANUFACTURED HOME PARK OR SUBDIVISION - A manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed on or after the effective date of floodplain management regulations adopted by a community. NO-RISE CERTIFICATION – A record of the results of an engineering analysis conducted to determine whether a project will increase flood heights in a floodway. A No-Rise Certification must be supported by technical data and signed by a registered Colorado Professional Engineer. The supporting technical data should be based on the standard step-backwater computer model used to develop the 100-year floodway shown on the Flood Insurance Rate Map (FIRM) or Flood Boundary and Floodway Map (FBFM). PHYSICAL MAP REVISION (PMR) - FEMA’s action whereby one or more map panels are physically revised and republished. A PMR is used to change flood risk zones, floodplain and/or floodway delineations, flood elevations, and/or planimetric features. RECREATIONAL VEHICLE - means a vehicle which is: 1. Built on a single chassis; 2. 400 square feet or less when measured at the largest horizontal projections; 3. Designed to be self-propelled or permanently towable by a light duty truck; and 4. Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use. SUBDIVISION shall have the meaning given in §30-28-101, C.R.S., and shall include any use of a parcel or building for condominiums. SPECIAL FLOOD HAZARD AREA – The land in the floodplain within a community subject to a one percent or greater chance of flooding in any given year, i.e., the 100-year floodplain. START OF CONSTRUCTION - The date the building permit was issued, including substantial improvements, provided the actual start of construction, repair, reconstruction, rehabilitation, addition, placement, or other improvement was within 180 days of the permit date. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for basement, footings, piers or foundations or the erection of temporary 67 277 forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. For a substantial improvement, the actual start of construction means the first alteration of any wall, ceiling, floor, or other structural part of a building, whether or not that alteration affects the external dimensions of the building. STRUCTURE - A walled and roofed building, including a gas or liquid storage tank, which is principally above ground, as well as a manufactured home. SUBSTANTIAL DAMAGE - Damage of any origin sustained by a structure whereby the cost of restoring the structure to its before-damaged condition would equal or exceed 50 percent of the market value of the structure just prior to when the damage occurred. SUBSTANTIAL IMPROVEMENT - Any reconstruction, rehabilitation, addition, or other improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure before "Start of Construction" of the improvement. The value of the structure shall be determined by the local jurisdiction having land use authority in the area of interest. This includes structures which have incurred "Substantial Damage", regardless of the actual repair work performed. The term does not, however, include either: 1. Any project for improvement of a structure to correct existing violations of state or local health, sanitary, or safety code specifications which have been identified by the local code enforcement official and which are the minimum necessary conditions or 2. Any alteration of a "historic structure” provided that the alteration will not preclude the structure's continued designation as a "historic structure." THRESHOLD PLANNING QUANTITY (TPQ) – A quantity designated for each chemical on the list of extremely hazardous substances that triggers notification by facilities to the State that such facilities are subject to emergency planning requirements. VARIANCE - A grant of relief to a person from the requirement of this ordinance when specific enforcement would result in unnecessary hardship. A variance, therefore, permits construction or development in a manner otherwise prohibited by this ordinance. (For full requirements see Section 60.6 of the National Flood Insurance Program regulations). VIOLATION - The failure of a structure or other development to be fully compliant with the community's floodplain management regulations. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required in Section 60.3(b)(5), (c)(4), (c)(10), (d)(3), (e)(2), (e)(4), or (e)(5) is presumed to be in violation until such time as that documentation is provided. WATER SURFACE ELEVATION - The height, in relation to the North American Vertical Datum (NAVD) of 1988 (or other datum, where specified), of floods of various magnitudes and frequencies in the floodplains of coastal or riverine areas. 18.04.030 LANDS TO WHICH THIS ORDINANCE APPLIES The ordinance shall apply to all Special Flood Hazard Areas and areas removed from the 68 278 floodplain by the issuance of a FEMA Letter of Map Revision Based on Fill (LOMR-F) within the jurisdiction of the Town of Estes Park, Colorado. 18.04.040 BASIS FOR ESTABLISHING THE SPECIAL FLOOD HAZARD AREA The Special Flood Hazard Areas will be identified by the scientific and engineering report entitled Flood Insurance Study for Larimer County and Incorporated Areas (“Flood Insurance Study"), dated February 6, 2013 including its accompanying Flood Insurance Rate Maps and/or Flood Boundary-Floodway Maps. These Special Flood Hazard Areas identified by the Flood Insurance Study and attendant mapping are the minimum area of applicability of this ordinance and will be supplemented by the study entitled Colorado Hazard Mapping Program, Hydraulic Analysis – Volume 2, Technical Support Data Notebook for the Big Thompson Watershed (HUC-8 10190006) (“Big Thompson Watershed Technical Support Data Notebook”), dated August 16, 2019, including its Summary Addendum, wherever it is more restrictive than the Flood Insurance Study. The Big Thompson Watershed Technical Support Data Notebook has been designated and approved by the Colorado Water Conservation Board at its September 18-19, 2019 meeting in Alamosa, Colorado. These special flood hazard areas are the minimum area of applicability of this chapter and may be further supplemented by studies designated and approved by the Town Board by ordinance. The Floodplain Administrator shall keep a copy of the Flood Insurance Study and a copy of the Big Thompson Watershed Technical Support Data Notebook, including the Summary Addendum to the Big Thompson Technical Support Data Notebook, listing the names and corresponding stream mileages of all of the streams studied in said report, on file and available for public inspection. 18.04.050 ESTABLISHMENT OF FLOODPLAIN DEVELOPMENT PERMIT A Floodplain Development Permit shall be required to ensure conformance with the provisions of this ordinance. 18.04.060 COMPLIANCE No structure or land shall hereafter be located, altered, or have its use changed within the Special Flood Hazard Area without full compliance with the terms of this ordinance and other applicable regulations. Nothing herein shall prevent the Board of Trustees from taking such lawful action as is necessary to prevent or remedy any violation. These regulations meet the minimum requirements as set forth by the Colorado Water Conservation Board and the National Flood Insurance Program. 18.04.070 ABROGATION AND GREATER RESTRICTIONS This ordinance is not intended to repeal, abrogate, or impair any existing easements. However, where this ordinance and another ordinance or easement conflict or overlap, whichever imposes the more stringent restrictions shall prevail. 18.04.080 INTERPRETATION In the interpretation and application of this ordinance, all provisions shall be: 69 279 1. Considered as minimum requirements; 2. Liberally construed in favor of the governing body; and 3. Deemed neither to limit nor repeal any other powers granted under State statutes. 18.04.090 WARNING AND DISCLAIMER OF LIABILITY The degree of flood protection required by this ordinance is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. On rare occasions greater floods can and will occur and flood heights may be increased by man-made or natural causes. This ordinance does not imply that land outside the Special Flood Hazard Area or uses permitted within such areas will be free from flooding or flood damages. This ordinance shall not create liability on the part of the Community or any official or employee or agent thereof for any flood damages that result from reliance on this ordinance or any administrative decision lawfully made thereunder. 18.04.100 SEVERABILITY This ordinance and the various parts thereof are hereby declared to be severable. Should any section of this ordinance be declared by the courts to be unconstitutional or invalid, such decision shall not affect the validity of the ordinance as a whole, or any portion thereof other than the section so declared to be unconstitutional or invalid. 18.04.110 DESIGNATION OF THE FLOODPLAIN ADMINISTRATOR The Town of Estes Park appointed Floodplain Administrator shall administer, implement and enforce the provisions of this ordinance and other appropriate sections of 44 CFR (National Flood Insurance Program Regulations) pertaining to floodplain management. Floodplain Administrator means the community official designated by the Town Administrator to administer and enforce the floodplain management regulations. 18.04.120 DUTIES & RESPONSIBILITIES OF THE FLOODPLAIN ADMINISTRATOR Duties and responsibilities of the Floodplain Administrator shall include, but not be limited to, the following: 1. Maintain all records pertaining to the provisions of this ordinance, including the actual elevation (in relation to mean sea level) of the lowest floor (including basement) of all new or substantially improved structures and any floodproofing certificate required by 18.04.130. 2. Review, approve, or deny all applications for Floodplain Development Permits required by adoption of this ordinance. 3. Review Floodplain Development Permit applications to determine whether a proposed building site, including the placement of manufactured homes, will be reasonably safe from flooding. 4. Review permits for proposed development to assure that all necessary permits have been obtained from those Federal, State or local governmental agencies (including Section 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1334) from which prior approval is required. 70 280 5. Inspect all development at appropriate times during the period of construction to ensure compliance with all provisions of this ordinance, including proper elevation of the structure. 6. Where interpretation is needed as to the exact location of the boundaries of the Special Flood Hazard Area (for example, where there appears to be a conflict between a mapped boundary and actual field conditions) the Floodplain Administrator shall make the necessary interpretation. 7. When Base Flood Elevation data has not been provided in accordance with 18.04.040, the Floodplain Administrator shall obtain, review and reasonably utilize any Base Flood Elevation data and Floodway data available from a Federal, State, or other source, in order to administer the provisions of 18.04.160 - 18.04.230. 8. For waterways with Base Flood Elevations for which a regulatory Floodway has not been designated, no new construction, substantial improvements, or other development (including fill) shall be permitted within Zones A1-30 and AE on the community's FIRM, unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the base flood more than one-half foot at any point within the community. 9. Under the provisions of 44 CFR Chapter 1, Section 65.12, of the National Flood Insurance Program regulations, a community may approve certain development in Zones A1-30, AE, AH, on the community's FIRM which increases the water surface elevation of the base flood by more than one-half foot, provided that the community first applies for a conditional FIRM revision through FEMA (Conditional Letter of Map Revision), fulfills the requirements for such revisions as established under the provisions of Section 65.12 and receives FEMA approval. 10. Notify, in riverine situations, adjacent communities and the State Coordinating Agency, which is the Colorado Water Conservation Board, prior to any alteration or relocation of a watercourse, and submit evidence of such notification to FEMA. 11. Ensure that the flood carrying capacity within the altered or relocated portion of any watercourse is maintained. 18.04.130 PERMIT PROCEDURES Application for a Floodplain Development Permit shall be presented to the Floodplain Administrator on forms furnished by him/her and may include, but not be limited to, plans in duplicate drawn to scale showing the location, dimensions, and elevation of proposed landscape alterations, existing and proposed structures, including the placement of manufactured homes, and the location of the foregoing in relation to Special Flood Hazard Area. Additionally, the following information is required: 1. Elevation (in relation to mean sea level), of the lowest floor (including basement) of all new and substantially improved structures; 2. Elevation in relation to mean sea level to which any nonresidential structure shall be floodproofed; 3. A certificate from a registered Colorado Professional Engineer or architect that the nonresidential floodproofed structure shall meet the floodproofing criteria of 18.04.170(2); 4. Description of the extent to which any watercourse or natural drainage will be altered or relocated as a result of proposed development. 5. Maintain a record of all such information in accordance with 18.04.120. 71 281 Approval or denial of a Floodplain Development Permit by the Floodplain Administrator shall be based on all of the provisions of this ordinance and the following relevant factors: 1. The danger to life and property due to flooding or erosion damage; 2. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner; 3. The danger that materials may be swept onto other lands to the injury of others; 4. The compatibility of the proposed use with existing and anticipated development; 5. The safety of access to the property in times of flood for ordinary and emergency vehicles; 6. The costs of providing governmental services during and after flood conditions including maintenance and repair of streets and bridges, and public utilities and facilities such as sewer, gas, electrical and water systems; 7. The expected heights, velocity, duration, rate of rise and sediment transport of the flood waters and the effects of wave action, if applicable, expected at the site; 8. The necessity to the facility of a waterfront location, where applicable; 9. The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use; 18.04.140 VARIANCE PROCEDURES 1. The Board of Trustees, as established by the Community, shall hear and render judgment on requests for variances from the requirements of this ordinance. 2. The Board of Trustees shall hear and render judgment on an appeal only when it is alleged there is an error in any requirement, decision, or determination made by the Floodplain Administrator in the enforcement or administration of this ordinance. 3. Any person or persons aggrieved by the decision of the Board of Trustees may appeal such decision in the courts of competent jurisdiction. 4. The Floodplain Administrator shall maintain a record of all actions involving an appeal and shall report variances to the Federal Emergency Management Agency upon request. 5. Variances may be issued for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or the State Inventory of Historic Places, without regard to the procedures set forth in the remainder of this ordinance. 6. Variances may be issued for new construction and substantial improvements to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing the relevant factors in 18.04.130 have been fully considered. As the lot size increases beyond the one-half acre, the technical justification required for issuing the variance increases. 7. Upon consideration of the factors noted above and the intent of this ordinance, the Board of Trustees may attach such conditions to the granting of variances as it deems necessary to further the purpose and objectives of this ordinance as stated in 18.04.010. 8. Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result. 9. Variances may be issued for the repair or rehabilitation of historic structures upon a determination that the proposed repair or rehabilitation will not preclude the structure's 72 282 continued designation as a historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure. 10. Prerequisites for granting variances: a. Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief. b. Variances shall only be issued upon: i. Showing a good and sufficient cause; ii. A determination that failure to grant the variance would result in exceptional hardship to the applicant, and iii. A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances. c. Any applicant to whom a variance is granted shall be given written notice that the structure will be permitted to be built with the lowest floor elevation below the Base Flood Elevation, and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation. 11. Variances may be issued by a community for new construction and substantial improvements and for other development necessary for the conduct of a Functionally Dependent Use provided that: a. The criteria outlined in 18.04.140 (1)-(9) are met, and b. The structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety. 18.04.150 PENALTIES FOR NONCOMPLIANCE Civil Remedies and Enforcement Powers. 1. Deny/Withhold Permits. Deny and withhold all permits, certificates or other forms of authorization to use or develop any land, structure or improvements thereon until the alleged violation related to such property, use or development is corrected. This provision shall apply whether or not the current owner or Applicant for the permit is responsible for the violation. Where the Community Development Director determines that an Applicant or Property Owner has an outstanding violation or violations of this Code, the Community Development Director shall be authorized to deny or withhold all permits, certificates or other forms of authorization for any use or development activity undertaken by such person until the outstanding violation is corrected. The provision shall apply whether or not the property for which the permit, application or other approval is sought is the property in violation. The Property Owner or Applicant shall have the right to appeal the Community Development Director's determination that a violation of this Code exists to the Board of Trustees or the Board of County Commissioners, whichever is applicable. The Board shall hold a hearing on the appeal as soon as practical and either uphold, reverse or modify the determination of the Community Development Director as the Board deems appropriate. 73 283 2. Revoke Permits. Revoke any development permit or other authorization, after notice and a public hearing by the Decision-Making Body that originally granted final authorization or approval of the permit, when it is determined that either: a. There is a departure from the approved plans, specifications or conditions of approval; b. There is a violation of any provision of this Code; c. The development permit was obtained by false representation; or d. The development permit was issued in error. Written notice of revocation shall be served upon the owner, the owner's agent, Applicant or other person to whom the permit was issued, or such notice may be posted in a prominent location at the place of the violation. No work or construction shall proceed after service of the revocation notice. 3. Stop Work Order. a. Issuance of Stop Work Order. With or without revoking permits, the Community Development Director may issue an order to stop work on any property on which there is an uncorrected violation of either a provision of this Code or a provision of a permit or other form of authorization issued hereunder. The stop work order shall specify the Code provisions allegedly in violation. After any such order has been served, no work shall proceed on any building, other structure or tract of land covered by such order, except to correct such violation or comply with the order. b. Timing/Notice. The stop work order may be issued at the same time as the notice of the initial violation (see §12.7 below), or subsequent to such notice. The stop work order may also specify a shorter time for correction of the violation than the fifteen-day period specified in §12.7.A below. The stop work order shall also indicate that failure to comply with the order may subject the violator to civil and/or criminal liability as penalty for the violation(s). 4. Injunctive Relief. Initiate injunction or abatement proceedings or other appropriate legal action in the District Court or other court of competent jurisdiction against any person who fails to comply with any provision of this Code or any requirement or condition imposed pursuant to this Code. In any court proceeding in which the Town or the County seeks a preliminary injunction, it shall be presumed that a violation of this Code is a real, immediate and irreparable injury to the public; that the public will be irreparably injured by the continuation of the Code violation unless the violation is enjoined; and that there is no plain and adequate remedy at law for the subject Code violation. 5. Abatement. Seek a court order in the nature of mandamus, abatement, injunction or other action to abate or remove a violation or to otherwise restore the premises to the condition which existed before the violation. 6. Guilty of Municipal Code Violation. A person shall be guilty of an Estes Park Municipal Code violation upon conviction in any case where a violation of this Code exists within the Town of Estes Park, where notice of violation, including any stop work order, has been properly served, and where such person fails to comply with such notice or stop work order. (Ord. 18-02 #6) 7. Penalty. Persons found guilty of a violation pursuant to this Section, within the Town of Estes Park, shall be subject to the fines and penalties established in the Estes Park Municipal Code. (Ord. 18-02 #6) 74 284 Criminal Remedies and Enforcement Powers in the Unincorporated Larimer County. 1. Guilty of Misdemeanor. A person shall be guilty of a misdemeanor upon conviction in any case where a violation of this Code exists, where notice of violation, including any stop work order, has been properly served, and where such person fails to comply with such notice or stop work order. 2. Penalty. Persons found guilty of a misdemeanor pursuant to this Section shall be punishable by a fine of not more than one thousand dollars ($1,000.00) or by imprisonment for not more than ten (10) days, or by both such fine or imprisonment for each such violation. 3. It shall be the responsibility of the County Attorney to bring any criminal enforcement action. At the discretion of the Board of County Commissioners, it may appoint the District Attorney to perform such enforcement duties in lieu of the County Attorney. (Ord. 18-02 #6) 18.04.160 GENERAL STANDARDS In all Special Flood Hazard Areas, the following provisions are required for all new construction and substantial improvements: 1. All new construction or substantial improvements shall be designed (or modified) and adequately anchored to prevent flotation, collapse or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy; 2. All new construction or substantial improvements shall be constructed by methods and practices that minimize flood damage; 3. All new construction or substantial improvements shall be constructed with materials resistant to flood damage; 4. All new construction or substantial improvements shall be constructed with electrical, heating, ventilation, plumbing, and air conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding; 5. All manufactured homes shall be installed using methods and practices which minimize flood damage. For the purposes of this requirement, manufactured homes must be elevated and anchored to resist flotation, collapse, or lateral movement. Methods of anchoring may include, but are not limited to, use of over-the-top or frame ties to ground anchors. This requirement is in addition to applicable State and local anchoring requirements for resisting wind forces. 6. All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of flood waters into the system; 7. New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of flood waters into the system and discharge from the systems into flood waters; and, 8. On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. 18.04.170 SPECIFIC STANDARDS 75 285 In all Special Flood Hazard Areas where base flood elevation data has been provided as set forth in (i) 18.04.040, (ii) 18.04.120 (7), or (iii) 18.04.220, the following provisions are required: 1. RESIDENTIAL CONSTRUCTION New construction and Substantial Improvement of any residential structure shall have the lowest floor (including basement), electrical, heating, ventilation, plumbing, and air conditioning equipment and other service facilities (including ductwork), elevated to one foot above the base flood elevation. Upon completion of the structure, the elevation of the lowest floor, including basement, shall be certified by a registered Colorado Professional Engineer, architect, or land surveyor. Such certification shall be submitted to the Floodplain Administrator. 2. NONRESIDENTIAL CONSTRUCTION With the exception of Critical Facilities, outlined in 18.04.230, new construction and Substantial Improvements of any commercial, industrial, or other nonresidential structure shall either have the lowest floor (including basement), electrical, heating, ventilation, plumbing, and air conditioning equipment and other service facilities (including ductwork), elevated to one foot above the base flood elevation or, together with attendant utility and sanitary facilities, be designed so that at one foot above the base flood elevation the structure is watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy. A registered Colorado Professional Engineer or architect shall develop and/or review structural design, specifications, and plans for the construction, and shall certify that the design and methods of construction are in accordance with accepted standards of practice as outlined in this subsection. Such certification shall be maintained by the Floodplain Administrator, as proposed in 18.04.130. 3. ENCLOSURES New construction and substantial improvements, with fully enclosed areas below the lowest floor that are usable solely for parking of vehicles, building access, or storage in an area other than a basement and which are subject to flooding shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a registered Colorado Professional Engineer or architect or meet or exceed the following minimum criteria: a. A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided. b. The bottom of all openings shall be no higher than one foot above grade. c. Openings may be equipped with screens, louvers, valves, or other coverings or devices provided that they permit the automatic entry and exit of floodwaters. 4. MANUFACTURED HOMES All manufactured homes that are placed or substantially improved within Zones A1-30, AH, and AE on the community's FIRM on sites (i) outside of a manufactured home park or subdivision, (ii) in a new manufactured home park or subdivision, (iii) in an expansion to an existing manufactured home park or subdivision, or (iv) in an existing manufactured home park or subdivision on which manufactured home has incurred 76 286 "substantial damage" as a result of a flood, be elevated on a permanent foundation such that the lowest floor of the manufactured home, electrical, heating, ventilation, plumbing, and air conditioning equipment and other service facilities (including ductwork), are elevated to one foot above the base flood elevation and be securely anchored to an adequately anchored foundation system to resist flotation, collapse, and lateral movement. All manufactured homes placed or substantially improved on sites in an existing manufactured home park or subdivision within Zones A1-30, AH and AE on the community's FIRM that are not subject to the provisions of the above paragraph, shall be elevated so that either: a. The lowest floor of the manufactured home, electrical, heating, ventilation, plumbing, and air conditioning equipment and other service facilities (including ductwork), are one foot above the base flood elevation, or b. The manufactured home chassis is supported by reinforced piers or other foundation elements of at least equivalent strength that are no less than 36 inches in height above grade and be securely anchored to an adequately anchored foundation system to resist flotation, collapse, and lateral movement. 5. RECREATIONAL VEHICLES All recreational vehicles placed on sites within Zones A1-30, AH, and AE on the community's FIRM either: a. Be on the site for fewer than 180 consecutive days, b. Be fully licensed and ready for highway use, or c. Meet the permit requirements of 18.04.130, and the elevation and anchoring requirements for "manufactured homes" in paragraph (4) of this section. A recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick disconnect type utilities and security devices, and has no permanently attached additions. 6. PRIOR APPROVED ACTIVITIES Any activity for which a Floodplain Development Permit was issued by the Town of Estes Park or a CLOMR was issued by FEMA prior to the effective date of the ordinance may be completed according to the standards in place at the time of the permit or CLOMR issuance and will not be considered in violation of this ordinance if it meets such standards. The CLOMR becomes null and void in the eyes of the community and a new permit and CLOMR may be required if there is a revision through a PMR, LOMR or new study that impacts the CLOMR boundary. 18.04.180 STANDARDS FOR AREAS OF SHALLOW FLOODING (AO/AH ZONES) Located within the Special Flood Hazard Area established in 18.04.040, are areas designated as shallow flooding. These areas have special flood hazards associated with base flood depths of 1 to 3 feet where a clearly defined channel does not exist and where the path of flooding is unpredictable and where velocity flow may be evident. Such flooding is characterized by ponding or sheet flow; therefore, the following provisions apply: 1. RESIDENTIAL CONSTRUCTION 77 287 All new construction and Substantial Improvements of residential structures must have the lowest floor (including basement), electrical, heating, ventilation, plumbing, and air conditioning equipment and other service facilities (including ductwork), elevated above the highest adjacent grade at least one foot above the depth number specified in feet on the community's FIRM (at least three feet if no depth number is specified). Upon completion of the structure, the elevation of the lowest floor, including basement, shall be certified by a registered Colorado Professional Engineer, architect, or land surveyor. Such certification shall be submitted to the Floodplain Administrator. 2. NONRESIDENTIAL CONSTRUCTION With the exception of Critical Facilities, outlined in 18.04.230, all new construction and Substantial Improvements of non-residential structures, must have the lowest floor (including basement), electrical, heating, ventilation, plumbing, and air conditioning equipment and other service facilities (including ductwork), elevated above the highest adjacent grade at least one foot above the depth number specified in feet on the community's FIRM (at least three feet if no depth number is specified), or together with attendant utility and sanitary facilities, be designed so that the structure is watertight to at least one foot above the base flood level with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads of effects of buoyancy. A registered Colorado Professional Engineer or architect shall submit a certification to the Floodplain Administrator that the standards of this Section, as proposed in 18.04.130, are satisfied. Within Zones AH or AO, adequate drainage paths around structures on slopes are required to guide flood waters around and away from proposed structures. 18.04.190 FLOODWAYS Floodways are administrative limits and tools used to regulate existing and future floodplain development. The State of Colorado has adopted Floodway standards that are more stringent than the FEMA minimum standard (see definition of Floodway in 18.04.020. Located within Special Flood Hazard Area established in 18.04.040, are areas designated as Floodways. Since the Floodway is an extremely hazardous area due to the velocity of floodwaters which carry debris, potential projectiles and erosion potential, the following provisions shall apply: 1. Encroachments are prohibited, including fill, new construction, substantial improvements and other development within the adopted regulatory Floodway unless it has been demonstrated through hydrologic and hydraulic analyses performed by a licensed Colorado Professional Engineer and in accordance with standard engineering practice that the proposed encroachment would not result in any increase (requires a No-Rise Certification) in flood levels within the community during the occurrence of the base flood discharge . 2. If 18.04.190 (1) above is satisfied, all new construction and substantial improvements shall comply with all applicable flood hazard reduction provisions of 18.04.170 – 18.04.230. 3. Under the provisions of 44 CFR Chapter 1, Section 65.12, of the National Flood Insurance Regulations, a community may permit encroachments within the adopted regulatory floodway that would result in an increase in Base Flood Elevations, provided that the community first applies for a CLOMR and floodway revision through FEMA. 78 288 18.04.200 ALTERATION OF A WATERCOURSE For all proposed developments that alter a watercourse within a Special Flood Hazard Area, the following standards apply: 1. Channelization and flow diversion projects shall appropriately consider issues of sediment transport, erosion, deposition, and channel migration and properly mitigate potential problems through the project as well as upstream and downstream of any improvement activity. A detailed analysis of sediment transport and overall channel stability should be considered, when appropriate, to assist in determining the most appropriate design. 2. Channelization and flow diversion projects shall evaluate the residual 100-year floodplain. 3. Any channelization or other stream alteration activity proposed by a project proponent must be evaluated for its impact on the regulatory floodplain and be in compliance with all applicable Federal, State and local floodplain rules, regulations and ordinances. 4. Any stream alteration activity shall be designed and sealed by a registered Colorado Professional Engineer or Certified Professional Hydrologist. 5. All activities within the regulatory floodplain shall meet all applicable Federal, State and Town of Estes Park floodplain requirements and regulations. 6. Within the Regulatory Floodway, stream alteration activities shall not be constructed unless the project proponent demonstrates through a Floodway analysis and report, sealed by a registered Colorado Professional Engineer, that there is not more than a 0.00-foot rise in the proposed conditions compared to existing conditions Floodway resulting from the project, otherwise known as a No-Rise Certification, unless the community first applies for a CLOMR and Floodway revision in accordance with 18.04.190. 7. Maintenance shall be required for any altered or relocated portions of watercourses so that the flood-carrying capacity is not diminished. 18.04.210 PROPERTIES REMOVED FROM THE FLOODPLAIN BY FILL A Floodplain Development Permit shall not be issued for the construction of a new structure or addition to an existing structure on a property removed from the floodplain by the issuance of a FEMA Letter of Map Revision Based on Fill (LOMR-F), unless such new structure or addition complies with the following: 1. RESIDENTIAL CONSTRUCTION The lowest floor (including basement), electrical, heating, ventilation, plumbing, and air conditioning equipment and other service facilities (including ductwork), must be elevated to one foot above the Base Flood Elevation that existed prior to the placement of fill. 2. NONRESIDENTIAL CONSTRUCTION The lowest floor (including basement), electrical, heating, ventilation, plumbing, and air conditioning equipment and other service facilities (including ductwork), must be 79 289 elevated to one foot above the Base Flood Elevation that existed prior to the placement of fill, or together with attendant utility and sanitary facilities be designed so that the structure or addition is watertight to at least one foot above the base flood level that existed prior to the placement of fill with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads of effects of buoyancy. 18.04.220 STANDARDS FOR SUBDIVISION PROPOSALS 1. All subdivision proposals including the placement of manufactured home parks and subdivisions shall be reasonably safe from flooding. If a subdivision or other development proposal is in a flood-prone area, the proposal shall minimize flood damage. 2. All proposals for the development of subdivisions including the placement of manufactured home parks and subdivisions shall meet Floodplain Development Permit requirements of 18.04.050; 18.04.130; and the provisions of 18.04.170 – 18.04.230 of this ordinance. 3. Base Flood Elevation data shall be generated for subdivision proposals and other proposed development including the placement of manufactured home parks and subdivisions which is greater than 50 lots or 5 acres, whichever is lesser, if not otherwise provided pursuant to 18.04.040 or 18.04.120 of this ordinance. 4. All subdivision proposals including the placement of manufactured home parks and subdivisions shall have adequate drainage provided to reduce exposure to flood hazards. 5. All subdivision proposals including the placement of manufactured home parks and subdivisions shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize or eliminate flood damage. 18.04.230 STANDARDS FOR CRITICAL FACILITIES A Critical Facility is a structure or related infrastructure, but not the land on which it is situated, as specified in Rule 6 of the Rules and Regulations for Regulatory Floodplains in Colorado, that if flooded may result in significant hazards to public health and safety or interrupt essential services and operations for the community at any time before, during and after a flood. 1. CLASSIFICATION OF CRITICAL FACITILIES It is the responsibility of the Board of Trustees to identify and confirm that specific structures in their community meet the following criteria: Critical Facilities are classified under the following categories: (a) Essential Services; (b) Hazardous Materials; (c) At-risk Populations; and (d) Vital to Restoring Normal Services. a. Essential services facilities include public safety, emergency response, emergency medical, designated emergency shelters, communications, public utility plant facilities, and transportation lifelines. These facilities consist of: 80 290 i. Public safety (police stations, fire and rescue stations, emergency vehicle and equipment storage, and, emergency operation centers); ii. Emergency medical (hospitals, ambulance service centers, urgent care centers having emergency treatment functions, and non-ambulatory surgical structures but excluding clinics, doctors offices, and non-urgent care medical structures that do not provide these functions); iii. Designated emergency shelters; iv. Communications (main hubs for telephone, broadcasting equipment for cable systems, satellite dish systems, cellular systems, television, radio, and other emergency warning systems, but excluding towers, poles, lines, cables, and conduits); v. Public utility plant facilities for generation and distribution (hubs, treatment plants, substations and pumping stations for water, power and gas, but not including towers, poles, power lines, buried pipelines, transmission lines, distribution lines, and service lines); and vi. Air Transportation lifelines (airports (municipal and larger), helicopter pads and structures serving emergency functions, and associated infrastructure (aviation control towers, air traffic control centers, and emergency equipment aircraft hangars). Specific exemptions to this category include wastewater treatment plants (WWTP), non-potable water treatment and distribution systems, and hydroelectric power generating plants and related appurtenances. Public utility plant facilities may be exempted if it can be demonstrated to the satisfaction of the Board of Trustees that the facility is an element of a redundant system for which service will not be interrupted during a flood. At a minimum, it shall be demonstrated that redundant facilities are available (either owned by the same utility or available through an intergovernmental agreement or other contract) and connected, the alternative facilities are either located outside of the 100-year floodplain or are compliant with the provisions of this section, and an operations plan is in effect that states how redundant systems will provide service to the affected area in the event of a flood. Evidence of ongoing redundancy shall be provided to the Board of Trustees on an as- needed basis upon request. b. Hazardous materials facilities include facilities that produce or store highly volatile, flammable, explosive, toxic and/or water-reactive materials. These facilities may include: i. Chemical and pharmaceutical plants (chemical plant, pharmaceutical manufacturing); ii. Laboratories containing highly volatile, flammable, explosive, toxic and/or water-reactive materials; iii. Refineries; 81 291 iv. Hazardous waste storage and disposal sites; and v. Above ground gasoline or propane storage or sales centers. Facilities shall be determined to be Critical Facilities if they produce or store materials in excess of threshold limits. If the owner of a facility is required by the Occupational Safety and Health Administration (OSHA) to keep a Material Safety Data Sheet (MSDS) on file for any chemicals stored or used in the work place, AND the chemical(s) is stored in quantities equal to or greater than the Threshold Planning Quantity (TPQ) for that chemical, then that facility shall be considered to be a Critical Facility. The TPQ for these chemicals is: either 500 pounds or the TPQ listed (whichever is lower) for the 356 chemicals listed under 40 C.F.R. § 302 (2010), also known as Extremely Hazardous Substances (EHS); or 10,000 pounds for any other chemical. This threshold is consistent with the requirements for reportable chemicals established by the Colorado Department of Health and Environment. OSHA requirements for MSDS can be found in 29 C.F.R. § 1910 (2010). The Environmental Protection Agency (EPA) regulation “Designation, Reportable Quantities, and Notification,” 40 C.F.R. § 302 (2010) and OSHA regulation “Occupational Safety and Health Standards,” 29 C.F.R. § 1910 (2010) are incorporated herein by reference and include the regulations in existence at the time of the promulgation this ordinance, but exclude later amendments to or editions of the regulations Specific exemptions to this category include: i. Finished consumer products within retail centers and households containing hazardous materials intended for household use, and agricultural products intended for agricultural use. ii. Buildings and other structures containing hazardous materials for which it can be demonstrated to the satisfaction of the local authority having jurisdiction by hazard assessment and certification by a qualified professional (as determined by the local jurisdiction having land use authority) that a release of the subject hazardous material does not pose a major threat to the public. iii. Pharmaceutical sales, use, storage, and distribution centers that do not manufacture pharmaceutical products. These exemptions shall not apply to buildings or other structures that also function as Critical Facilities under another category outlined in this section. c. At-risk population facilities include medical care, congregate care, and schools. These facilities consist of: i. Elder care (nursing homes); ii. Congregate care serving 12 or more individuals (day care and assisted living); iii. Public and private schools (pre-schools, K-12 schools), before-school and after-school care serving 12 or more children); 82 292 d. Facilities vital to restoring normal services including government operations. These facilities consist of: i. Essential government operations (public records, courts, jails, building permitting and inspection services, community administration and management, maintenance and equipment centers); ii. Essential structures for public colleges and universities (dormitories, offices, and classrooms only). These facilities may be exempted if it is demonstrated to the Board of Trustees that the facility is an element of a redundant system for which service will not be interrupted during a flood. At a minimum, it shall be demonstrated that redundant facilities are available (either owned by the same entity or available through an intergovernmental agreement or other contract), the alternative facilities are either located outside of the 100-year floodplain or are compliant with this ordinance, and an operations plan is in effect that states how redundant facilities will provide service to the affected area in the event of a flood. Evidence of ongoing redundancy shall be provided to the Board of Trustees on an as-needed basis upon request. 2. PROTECTION FOR CRITICAL FACILITIES All new and substantially improved Critical Facilities and new additions to Critical Facilities located within the Special Flood Hazard Area shall be regulated to a higher standard than structures not determined to be Critical Facilities. For the purposes of this ordinance, protection shall include one of the following: a. Location outside the Special Flood Hazard Area; or b. Elevation of the lowest floor or floodproofing of the structure, together with attendant utility and sanitary facilities, to at least two feet above the Base Flood Elevation. 3. INGRESS AND EGRESS FOR NEW CRITICAL FACILITIES New Critical Facilities shall, when practicable as determined by the Board of Trustees, have continuous non-inundated access (ingress and egress for evacuation and emergency services) during a100-year flood event. 83 293       84 294 UTLITIES DEPARTMENT Memo To: Honorable Mayor Jirsa Board of Trustees Through: Town Administrator Machalek From: Utilities Director Bergsten, Utilities Coordinator Rusch Date: 9/24/2019 RE: Fee Subsidy Request, Town Utilities, 380 Community Drive, Estes Park High School CTE Building (Mark all that apply) ☐PUBLIC HEARING ☐ORDINANCE ☐ LAND USE☐CONTRACT/AGREEMENT ☐ RESOLUTION ☒ OTHER: Fee Subsidy QUASI-JUDICIAL ☐ YES ☒ NO Objective: To present the Estes Park High School’s fee subsidy request for their new Career and Technical Education (CTE) Building. Present Situation: The Estes Park High School plans to build a new CTE building with an attached greenhouse. Their request indicates the project is $200,000 over budget. They are requesting funds to subsidize the water tap fees and electrical line extension costs, totaling an estimated at $83,898. The available Board subsidy pool is $21,140.80 Proposal: Because there is no adopted utility fee waiver policy at this time, staff proposes the Town Board discuss the advantages and disadvantages of subsidizing a percentage of these fees. As a general guideline, Community Development’s Policy 402, Fee Waiver states: “It is the policy of the Town Board of Trustees to support essential community needs such as attainable and workforce housing, assisted living, and health care services through consideration of waiving in-house fees assessed by the Community Development Department. The Estes Valley Comprehensive Plan is used as a guide in identifying these community needs.” Advantages: ●Subsidy approval would assist this project that is stated to be some $200,000 short on estimated construction cost (see attached Statement of Intent). 85 295 Disadvantages: ● An indirect connection can be made between the Board’s strategic outcome areas and this project. The Board’s outcome areas are listed below: o Robust Economy o Infrastructure o Exceptional Guest Services o Public Safety, Health and Environment o Outstanding Community Services o Governmental Services and Internal Support o Transportation o Town Financial Health however, the Board’s subsidy pool is discretionary. ● Approval of this request will decrease the remaining funding set aside for the remainder of 2019; however, staff has not received any specific inquiries at this time. Action Recommended: Staff yields to the Town Board’s discretion. Finance/Resource Impact: 101-1100-411.29-05, Town Board Economic Development Funds, $16,195 remaining Level of Public Interest Moderate Sample Motion: I move for the approval/denial of subsidizing (an amount or percentage determined by the Board) for the School’s CTE project. Attachments: Requestor’s Statements of Intent. 86 296 10/3/2019 1 Building Site • North side of Manford Ave. • East of Community Garden • South of Bike park/Pump track • Compost Digesters • Apron for Outdoor work with students on East side Building Floor Plan • 30’x19’Classroom Space • Welding Lab • Auto Shop • Wood Shop • Greenhouse Work room • Attached 23’x67’ Greenhouse 1 2 10/3/2019 2 Elevations Profile Greenhouse • Passive Solar: R32 • ⅔ Concrete Slab: Mobile garden beds on casters • ⅓ Dirt: Perennial Planting space for citrus, berries, banana tree etc. • Phase change material • Fully automated climate control + data system •Ground Air Heat Transfer System 3 4 Estes Park School District R-3 1605 Brodie Ave Estes Park, CO 80517 Chuck Scott – Principal Town of Estes Park: Statement of Intent The Estes Park School District R-3 (School) intends to build a 6,480 square foot Career and Technical Education (CTE) building with an attached 1,509 square foot greenhouse. The School has entered a lease agreement with the Town of Estes Park for a parcel of land on the north side of Manford Avenue across from the existing high school for the proposed buildings. The School respectfully requests consideration of a fee subsidy for water tap fees. The tap fee is estimated to be $45,847.00. Property Information The property in the lease agreement is located in Stanley Park and includes the existing parking lot located north of Manford Avenue and south of the Stanley Park Bike Park. Current Status The CTE building is currently at the 100% construction drawing phase and drawings are currently being submitted for review from the Colorado Division of Fire Prevention and Control, the Estes Valley Fire Protection District, and the Larimer County Department of Health and Environment. The School is ready to begin construction following finalization of the lease agreement with the town. 87 297 Additional Information The proposed CTE Building will fill a need that the School District has identified for technical education and career-oriented opportunities for students. Currently, students are limited to receiving technical education without hands-on experience or are required to travel to the Ft Collins for technical education opportunities. Initially the CTE building will include teaching facilities for welding, auto mechanic and wood shop classes, in addition to greenhouse space. Ultimately the facility could include kitchen area for home economics. In 2016 The school district gave 6.5 acres along with adjoining water and sewer tap credits to the Estes Valley Recreation and Parks District (EVRPD) for the development of the Estes Valley Community Center. This contribution has required the school to seek additional property and water taps for the proposed improvements. The estimated construction cost is $1.6 million with a current budget of $1.4 million. The requested fee subsidy for the water tap fees will allow the purchase of needed tools and equipment. The voting down of Amendment 73 in November of 2018 has limited the school anticipated budget for the proposed facility. The proposed facility will benefit the community as well as the school by providing technical career training for local youth to enhance career advancement after high school. Chuck Scott EPHS Principal 88 298 Estes Park School District R-3 1605 Brodie Ave Estes Park, CO 80517 Chuck Scott – Principal Statement of Intent The Estes Park School District R-3 (School) intends to build a 6,480 square foot Career and Technical Education (CTE) building with an attached 1,509 square foot greenhouse. The School has entered a lease agreement with the Town of Estes Park for a parcel of land on the north side of Manford Avenue across from the existing high school for the proposed buildings. The School respectfully requests consideration of a fee subsidy for electric service extension. The fee to have primary power extended to the site is quoted at $38,050.58. Property Information The property in the lease agreement is located in Stanley Park and includes the existing parking lot located north of Manford Avenue and south of the Stanley Park Bike Park. Current Status The CTE building is currently at the 100% construction drawing phase and drawings are currently being submitted for review from the Colorado Division of Fire Prevention and Control, the Estes Valley Fire Protection District, and the Larimer County Department of Health and Environment. The School is ready to begin construction following finalization of the lease agreement with the town. Additional Information The proposed CTE Building will fill a need that the School District has identified for technical education and career-oriented opportunities for students. Currently, students are limited to receiving technical 89 299 education without hands-on experience or are required to travel to the Ft Collins for technical education opportunities. Initially the CTE building will include teaching facilities for welding, auto mechanic and wood shop classes, in addition to greenhouse space. Ultimately the facility could include kitchen area for home economics. In 2016 The school district gave 6.5 acres along with adjoining water and sewer tap credits to the Estes Valley Recreation and Parks District (EVRPD) for the development of the Estes Valley Community Center. This contribution has required the school to seek additional property and water taps for the proposed improvements. The estimated construction cost is $1.6 million with a current budget of $1.4 million. The requested fee subsidy for the water tap fees will allow the purchase of needed tools and equipment. The voting down of Amendment 73 in November of 2018 has limited the school anticipated budget for the proposed facility. The proposed facility will benefit the community as well as the school by providing technical career training for local youth to enhance career advancement after high school. Chuck Scott EPHS Principal 90 300 PROCEDURE FOR PUBLIC HEARING Applicable items include: Rate Hearings, Code Adoption, Budget Adoption 1. MAYOR. The next order of business will be the public hearing on ORDINANCE 27-19 AMENDING §2.04.060 OF THE ESTES PARK MUNICIPAL CODE TO ALLOW REMOTE PARTICIPATION BY TRUSTEES IN MEETINGS OF THE BOARD. At this hearing, the Board of Trustees shall consider the information presented during the public hearing, from the Town staff, public comment, and written comments received on the application. Any member of the Board may ask questions at any stage of the public hearing which may be responded to at that time. Mayor declares the Public Hearing open. 2. STAFF REPORT. Review the staff report. 3. PUBLIC COMMENT. Any person will be given an opportunity to address the Board concerning the Ordinance. All individuals must state their name and address for the record. Comments from the public are requested to be limited to three minutes per person. 4. MAYOR. Ask the Town Clerk whether any communications have been received in regard to the Ordinance which are not in the Board packet. Ask the Board of Trustees if there are any further questions concerning the Ordinance. Indicate that all reports, statements, exhibits, and written communications presented will be accepted as part of the record. Declare the public hearing closed. Request Board consider a motion. 91 301 7. SUGGESTED MOTION. Suggested motion(s) are set forth in the staff report. 8. DISCUSSION ON THE MOTION. Discussion by the Board on the motion. 9. VOTE ON THE MOTION. Vote on the motion or consideration of another action. 92 302 Town Clerk Memo To: Honorable Mayor Jirsa Board of Trustees Through: Town Administrator Machalek From: Jackie Williamson, Town Clerk Date: September 24, 2019 RE: Ordinance 27-19 Amending §2.04.060 of the Estes Park Municipal Code to Allow Remote Participation by Trustees in Meetings of the Board. PUBLIC HEARING ORDINANCE LAND USE CONTRACT/AGREEMENT RESOLUTION OTHER QUASI-JUDICIAL YES NO Objective: Consider amending the Municipal Code to allow remote participation for Board meeting by the Board of Trustees. Present Situation: The Town’s current Municipal Code requires all actions of the Board of Trustees shall require the concurrence of the majority of those present. Municipal Code Section 2.04.060 Action of Board would require an amendment to allow a member to participate in a Board meeting remotely. Attorney Kramer has reviewed Colorado law § 31-16-103, C.R.S. and determined it is possible for Trustees to participate remotely through an ordinance. Further he has determined other Colorado municipalities allow remote participation; however, they tend to prohibit remote participation in quasi-judicial matters and executive sessions. Proposal: Attorney Kramer has prepared Ordinance 27-19 to allow remote participation by Board members. The proposed ordinance is broad and would allow the Board to consider the adoption of a Board policy to address specific issues such as when Board members would be allowed to participate remotely and on what topics. Advantages: • Remote participate could ensure a quorum is met for Board meetings, especially in times when a super majority may be needed for an item. • Allow participation by a Board member during emergencies. Disadvantages: • Depending on technical considerations there could be a cost to establishing the remote participation. Action Recommended: As this is a policy decision of the Board, staff does not have a formal recommendation on the proposed Ordinance. 93 303 Budget: Unknown at this time. Pending the Board’s direction on the type of remote participation; i.e. by phone, by skype, etc. there could be a cost to purchase additional software, hardware, etc. Level of Public Interest. Low. Sample Motion: I move to approve/deny Ordinance 27-19 Attachment Ordinance 27-19 94 304 ORDINANCE NO. 27-19 AN ORDINANCE AMENDING SECTION 2.04.060 OF THE ESTES PARK MUNICIPAL CODE TO ALLOW REMOTE PARTICIPATION BY TRUSTEES IN MEETINGS OF THE BOARD WHEREAS, the Town Board of Trustees desires to update Section 2.04.060 of the Municipal Code to allow remote participation by Trustees in meetings of the Board; NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF TRUSTEES OF THE TOWN OF ESTES PARK, COLORADO AS FOLLOWS: Section 1: The Estes Park Municipal Code Section 2.04.060 Action by Board shall be amended by adding underlined material and deleting stricken material as follows: All ordinances and all resolutions for the appropriation of money or the entering into of contracts shall require for their passage the concurrence of a majority of the Board of Trustees. All other actions of the Board of Trustees upon which a vote is taken shall require the concurrence of a majority of those present. Members of the Board of Trustees may participate remotely in meetings and vote remotely on actions of the Board so long as they are present remotely in real time. The Board may, by a policy adopted by resolution, limit the circumstances for which such remote participation and voting will be available. Section 2: This Ordinance shall take effect and be enforced thirty (30) days after its adoption and publication. PASSED AND ADOPTED by the Board of Trustees of the Town of Estes Park, Colorado this ____ day of _______________, 2019. TOWN OF ESTES PARK, COLORADO Mayor ATTEST: Town Clerk 95 305 I hereby certify that the above Ordinance was introduced at a regular meeting of the Board of Trustees on the day of , 2019 and published in a newspaper of general circulation in the Town of Estes Park, Colorado, on the day of , 2019, all as required by the Statutes of the State of Colorado. Town Clerk 96 306 COMMUNITY DEVELOPMENT Report To: Honorable Mayor Jirsa Board of Trustees Through: Town Administrator Machalek From: Randy Hunt, Community Development Director Date: September 24, 2019 RE: Review of Draft IGA Options for the Joint Town Board/County Commission Meeting on September 30, 2019 Objective: Identify Intergovernmental Agreement (IGA) options for further consideration and possible direction/decision at the Joint Town Board/County Commissioners meeting on September 30, 2019 Present Situation: County and Town staff have been collaborating on draft IGA language for consideration by the Town Board Trustees, the Board of County Commissioners, and all stakeholders. Proposal: The two drafts have remained unchanged since they were emailed to Town Board members, Planning Commissioners, and Board of Adjustment members on Fri., Sep. 13. The Board of County Commissioners also have copies of these drafts. They are included again in this packet. Staff will be prepared at your Sep. 24 discussion to explain the drafts further and answer any questions or concerns at that time. We will also share any additional information that may become available in recent days, as this is a fast-moving set of issues. Along with the two drafts, all bodies were also provided a cover memo from Town staff and a memorandum from the County Manager. The County Manager’s memo is included in this packet. The staff’s cover memo from our Friday the 13th email is copied unchanged, as follows: As staff indicated at your Tue. Sep. 10 Town Board meeting, County and Town staff have been collaborating on draft IGA language for consideration by the Town Board of Trustees, the Board of County Commissioners, and all stakeholders. The attachments accompanying this memorandum comprise our first public drafts of two options for Town and County review. 97 307 These drafts have already undergone staff review at several levels. We believe they are ready for public review; however, we would not wish to suggest that they are final drafts. They are intended to give substance to discussions and allow for examination of which elements seem to work and which elements need more examination. (In the software world, you could think of these as “beta versions”: ready for trial runs, but no expectations they are bug-free.) Although this cover memo has my name (Randy Hunt) on it, I want to stress that the IGA draft language is very much a group product by staff. County staff – Community Development, County Attorney, Administration, and others – in particular deserve much credit for actual drafting. Town staff – Community Development, Town Attorney, Administration, and others – contributed a number of edits. Most of the edits have been shared back and forth, but I’d like to note that the latest drafts went to County staff yesterday afternoon – thus, any glitches in the most recent materials are likely Town staff (almost certainly my glitches.) Attachment 5A in particular is my product and has not had as thorough review by County and others. Here is a summary outline of the attachments: • A Memo from County staff to Town staff, dated Mon. Sep. 9. • Attachment A (“Sixth Amendment…”): As the County staff memo indicates, this is one option on the table; it essentially maintains the status quo in the current IGA for approximately one year, except to specify that County staff will begin processing of County applications Jan. 1, 2020, and no payment from the County to the Town for those services is required in 2020. (These elements are already reflected in both Town and County draft 2020 budgets.) Town staff made no changes to County staff’s draft. • Attachment B (“An Intergovernmental Agreement…”: This is the second and most intricate option. It outlines staff’s concepts toward a new IGA. The County staff’s draft is original text; Town staff changes show up as redlines, strikeouts, and comments. o An important caveat: We recognize that policy direction is embedded in this option (and in Attachment A as well.) Policy direction is in the realm of our elected officials. With that said, the discussion can move forward expeditiously if specific concepts for policy are on the table, and all parties can examine them, determine if they’re expected to work or not, and if necessary come up with different policy directions. This is the spirit of Attachment B. • Attachment 5A: This is a sort of sub-category of Attachment B, addressing transitions with our current Planning Commission and Board of Adjustment. As noted, this is newly minted language and needs more review internally by staff. It should be read alongside Sec. 5 in Attachment B. 98 308 The County Commissioners are expected to consider these materials and discuss IGA options on Monday, Sep. 16 in a work session. We will plan to provide you with updates on those discussions in the near future. We will also share any Town Board discussions with the County as matters progress. Staff will provide any and all relevant updates to you in time for your Sep. 24 Town Board agenda item on this topic. Please let us know if you have any questions or concerns. Advantages: • Provides a framework for Town Board discussion regarding the IGA • Allows staff, the public, and all stakeholders to consider various alternatives for proceeding with a joint Town/County cooperative planning structure Disadvantages: • Although there are undoubtedly pros and cons to each alternative presented (and likely pros and cons for all alternatives), there is no intrinsic disadvantage to have options made available and discussing them. Action Recommended: N/A; discussion item only at this time. Finance/Resource Impact: N/A at this time. Level of Public Interest High interest in the joint planning framework and the IGA in general. It is unknown what level of public interest may exist regarding the options themselves. 99 309 LARIMER COUNTY | COMMUNITY DEVELOPMENT P.O. Box 1190, Fort Collins, Colorado 80522-1190 MEMORANDUM To: Travis Machalek, Town Manager, Town of Estes Valley Randy Hunt, Community Development Director, Town of Estes Valley Dan Kramer, Town Attorney From: Linda Hoffmann, County Manager Jeannine Haag, County Attorney Frank Haug, Assistant County Attorney II Lesli Ellis, AICP CEP, Community Development Director Date: September 9, 2019 Re: Estes Valley Intergovernmental Agreement (IGA) Options This memo is to present suggestions for next steps related to the Town and County Intergovernmental Agreement (IGA) for cooperative land use planning for the Estes Valley Planning Area. Earlier this year, the Town asked the County to resume development review for the unincorporated area of the Estes Valley beginning January 1, 2020. Additionally, the Town requested that the current agreement (which expires February 2020) not be renewed and that the Town and County explore other possible options for working cooperatively with respect to land use planning and development in the Estes Valley. Since that time, we’ve worked together to host a community input event and gather input via electronic means, and County staff has begun to draft intergovernmental agreement options. Additionally, the Commissioners asked County staff to work with the Town to consider two approaches to the IGA. A. The first option is to extend the existing agreement with minor amendments for one year while the parties work on reaching agreement on a longer-term cooperative land use approach. The extension would be implemented through a sixth amendment to the IGA. The sixth amendment would also provide that county planning staff will process development review applications in the unincorporated area of the Estes Valley beginning January 1, 2000. An example of such agreement is presented in Attachment A. B. The second option is to prepare an IGA that explains how the Town and County will work together on planning and address future issues such as the comprehensive plan and defining town planning and growth limits. A draft of an initial framework IGA to further discuss policy and gather Town and community feedback is provided in Attachment B. 100 310 Page 2 Staff has been working together to review results of the July/August community engagement and define the next stages of engagement and joint meetings of the Town Trustees and Board of County Commissioners. The next event is scheduled for Monday, September 30, 2019. On September 10, would Town staff be willing to present and discuss the two above approaches with Town Trustees? Trustees’ feedback to refine or add to one of the above options or eliminate one would help guide us to prepare for the September 30 event and provide additional analysis of options. We will share Town Trustee feedback with the Commissioners at a work session on September 16. Thank you for your consideration. 101 311 SIXTH AMENDMENT TO INTERGOVERNMENTAL AGREEMENT BETWEEN LARIMER COUNTY, COLORADO AND THE TOWN OF ESTES PARK , COLORADO This Sixth Amendment to Intergovernmental Agreement Between Larimer County, Colorado (“County”) and the Town of Estes Park, Colorado (Town”) is made and effective this _______ day of September 2019. I. RECITALS WHEREAS, County and Town entered into an Intergovernmental Agreement effective February 1, 2000, (“IGA”) addressing their rights and responsibilities with respect to land use, zoning and development within the Estes Valley, an area comprised of the Town and a defined area of unincorporated Larimer County adjacent to the Town; and WHEREAS, the IGA has been subsequently amended five times; and WHEREAS, pursuant to the fifth amendment, the IGA is set to expire February ______, 2020; and WHEREAS, the Town and County seek to amend the IGA pursuant to this Sixth Amendment. II. CONSIDERATION NOW, THEREFORE in consideration of the County and Town’s mutual covenants, promises and agreements stated herein and other good and valuable consideration, the receipt of which is hereby acknowledged, the County and Town agree as follows: III. TERMS 1. The IGA and five subsequent amendments thereto are modified to extend the termination date of the IGA to and including February ________, 2021. 2. Commencing January 1, 2020, the County shall undertake at its own cost and expense to process all land use applications that are submitted for properties within the unincorporated areas of the Estes Valley and cease payments to the Town for such services. The Town shall undertake at its own cost and expense to process all land use applications that are submitted for properties within the Town municipal limits of the Estes Valley. 3. Except as amended herein, the IGA and all five subsequent amendments shall remain in full force and effect as written. 102 312 Sixth Amendment to IGA Larimer County and Town of Estes Park Page Two Dated and effective as of the first date written above. BOARD OF COUNTY COMMISSIONERS OF LARMER COUNTY, COLORADO By: _________________________________ Tom Donnelly, Chair ATTEST: ________________________________ Clerk to the Board TOWN OF ESTES PARK, COLORADO By: _________________________________ Todd A. Jirsa, Mayor ATTEST: _________________________________ Town Clerk DATE ________________________ APPROVED AS TO FORM: ___________________________________ COUNTY ATTORNEY DATE ________________________ APPROVED AS TO FORM: ___________________________________ TOWN ATTORNEY 103 313 Discussion Draft – Sept. 513, 2019 1 AN INTERGOVERNMENTAL AGREEMENT Regarding Land Use Planning and Related Issues for the Estes Valley Discussion Draft – September 513, 2019 THIS INTERGOVEMENTAL AGREEMENT (“Agreement”) is made and effective this ___ day of _____________, 2019 (“Effective Date”) by and between LARIMER COUNTY, COLORADO (“County”), a body politic organized under and existing by virtue of the laws of the State of Colorado and THE TOWN OF ESTES PARK, COLORADO (“Town”) and jointly referred to as the “Parties.” Contents of the Agreement (for reference while reviewing drafts) 1. Definitions................................................................................................................................................ 3 2. Adoption of new plans and regulations. ................................................................................................... 4 3. Land Use Regulations and Fees ............................................................................................................... 5 4. Parties’ Roles in Development Review, Compliance .............................................................................. 7 5. Development Review Approvals (Planning Commission and Board of Adjustment) ............................. 9 6. Annexation ............................................................................................................................................... 9 7. Implementation of Agreement ............................................................................................................... 10 8. Performance of Agreement .................................................................................................................... 10 9. Third-Party Rights .................................................................................................................................. 11 10. Agreement Amendments...................................................................................................................... 11 11. Severability. ......................................................................................................................................... 11 12. Term and termination of Agreement .................................................................................................... 11 13. Effective Date ...................................................................................................................................... 12 RECITALS A. WHEREAS, the Parties have worked together cooperatively on land use planning since the late 1990s, with an initial intergovernmental agreement (IGA) effective February 1, 2000, with five subsequent amendments, and which expires in February 2020; B. WHEREAS, in 1996, the Town and County prepared and jointly adopted the Estes Valley Comprehensive Plan for the land area in the Estes Valley Planning Area which includes lands within Town limits and in unincorporated Larimer County, which plan is effective until updated or superseded; C. WHEREAS, the Parties agree that maintaining and enhancing areas of Town development in a thoughtful and deliberate way, managing growth in the Estes Valley, and protecting open space and conserving rural character isare enhanced by cooperation in land use planning and 104 314 Discussion Draft – Sept. 513, 2019 2 development review services; D. WHEREAS, concentrating Town level development in areas planned and designated for such development affords greater efficiency in the delivery of services such as water, streets and transportation, fire and police protection and other services, and affords a measure of predictability to landowners and residents concerning where services will be provided in the future; E. WHEREAS, maintaining the parts of the Estes Valley Planning Area that are designated for rural uses as rural promotes the purposes of providing a community buffer between the Town and the adjacent national park and federal lands, serves the economic and community interests, and meets the goals of the community as set forth through the Estes Valley Comprehensive Plan; F. WHEREAS, the purposes of this Intergovernmental Agreement (Agreement) are to: 1. Implement the Comprehensive Plan of Larimer County and the Estes Valley Comprehensive Plan as it currently exists or may hereafter be amended or replaced; 2. Establish effective means of planning for future development and conservation within the unincorporated portion of the County in the Estes Valley; 3. Assure that Town Level Development occurs only where and when facilities and services can be provided to it and in appropriate locations within the Estes Valley that are able to support higher intensities of development; 4. Assure that land eligible for annexation to the Town are annexedconsidered for annexedation prior to or concurrently with development (note: approach to annexation needsannexation needs further discussion between County and Town); 5. Provide effective means for the appropriate design, construction, and maintenance of public improvements; 6. Encourage the efficient use of land and open space conservation in appropriate locations, including those in the unincorporated areas of the Estes Valley; 7. Provide a mechanism for property owners, residents, stakeholders, and others to have input on and be informed as to where development will occur in the future; 8. Assure that development in in the vicinity of the Town does not negatively impact roads or other infrastructure improvements in unincorporated Larimer County, and provide that when there are negative impacts, those impacts will be appropriately mitigated; and 9. Allocate responsibilities of Larimer County and the Town of for purposes of administering land use within their respective jurisdictions. G. WHEREAS, pursuant to State of Colorado law, local jurisdictions are authorized to regulate the location of activities and developments; phase development of services and facilities; regulate development on the basis of its impact on the community or surrounding areas; plan for and regulate the use of land so as to provide for planned and orderly use of land and protection of the environment; cooperate or contract with other units of government for the purpose of planning and regulating the development of land, including, but not limited to, the joint exercise of planning, zoning, subdivision, building, and related regulations and annexation of property, all in a manner consistent with constitutional rights and statutory procedures; 105 315 Discussion Draft – Sept. 513, 2019 3 H. WHEREAS, communication among local jurisdictions, special districts, property owners and other interested parties is essential to accomplishing this Agreement; I. WHEREAS, any provisions in this Agreement may be implemented only to the extent legally permitted by State and Federal Law; and J. WHEREAS, the Parties have sought community input and held hearings after proper public notice for the consideration of entering into this Agreement. AGREEMENT NOW, THEREFORE in consideration of the covenants and obligations expressed herein, it is hereby agreed by and between the Parties as follows: 1. DEFINITIONS The following terms shall have the meanings set forth below. 1.1. Annexation. Annexation means the incorporation of land area into an existing municipality with a resulting change in the boundaries of that municipality. 1.2. Estes Valley Comprehensive Plan. The adopted Comprehensive Plan for the Estes Valley Planning Area, adopted by the Estes Park Planning Commission and the Larimer County Planning Commission in December 1996. The Plan addresses land use, transportation, natural resources, and other elements and guides through maps and text and generally indicates the types, densities and intensities of land use that are acceptable for any given parcel of land or area in the Estes Valley. It also establishes the Estes Valley Planning Area boundary. 1.3. Estes Valley Development Code (EVDC). The adopted land use, zoning, and development standards for the Estes Valley adopted by the Town and County effective in 19979 and as subsequently amended. 1.4. Estes Valley Planning Area (EVPA). The Estes Valley Planning Area is that geographical area beyond Town limits established in the Estes Valley Comprehensive Plan. In such area, Town level development is currently not considered appropriate or desired except where it annexes to the Town. LandThis Agreement anticipates that Lland within the EVPA immediately adjacent to Town limits should (or “may” or “must”?) may be annexed into the Town when Town Level Development is proposed. 1.5. Estes Valley Overlay District (EV Overlay District). Regulations proposed to be adopted by Larimer County as part of the Larimer County Land Use Code to maintain consistency with existing Estes Valley Development Code and to implement this Agreement. 1.6. Larimer County Comprehensive Plan. The official vision and policy document guiding long- range framework for decision making for Larimer County’s unincorporated areas outside the Estes Valley, adopted in 2019 by the County Planning Commission. 106 316 Discussion Draft – Sept. 513, 2019 4 1.7. Larimer County Land Use Code. The regulations proposed to be adopted and amended by the Board of County Commissioners pursuant to the authority of Title 30, Article 28 of the Colorado Revised Statutes to implement the Larimer County Comprehensive Plan. The Land Use Code contains, inter alia, land use regulations, development standards, and development review procedures for the unincorporated areas. 1.8. Open Space. Land that is not occupied by any structure or artificial impervious surfaces and that is intended for long-term conservation purposes. 1.9. Rural Areas. Areas which are outside the Town’s corporate limits and which are planned or zoned for rural estate or other rural residential uses or which are designated to remain as conserved areas. These lands are not intended to be annexed and will generally remain rural in character. 1.10. Supplemental Regulations. Regulations proposed to be adopted by Larimer County in the Land Use Code as part of the Estes Valley Overlay District (EV Overlay District) and that provide for the implementation of land use, street, design, and other development standards consistent with the Estes Valley Development Code and carried forward through the County’s development review process. 1.11. Town Level Development. Any development which uses Town level facilities and services provided either by the Town or special districts and which is at higher intensities that rural areas. 1.12. Town Level Facilities and Services. Services such as central water, sewer, responsive fire protection, urban level street construction and maintenance, and/or similar services that are typically provided by the Town or an appropriate district and are necessary to serve Town level development as defined in this Agreement. 1.12.1.13. Town of Estes Park Development Code. The regulations proposed to be adopted and amended by the Town of Estes Park Town Board of Trustees pursuant to the authority of Title 31 Article 23 of the Colorado Revised Statutes to implement the Estes Valley Comprehensive Plan or its successor Plan(s) as such Plan(s) may apply to the Town of Estes Park. 2. ADOPTION OF NEW PLANS AND REGULATIONS. This section identifies the plans and boundary maps which are referenced in this Agreement. 2.1. Comprehensive Plan(s), The Parties agree to communicate and coordinate to prepare a Comprehensive Plan for the Town that will extend into encompass the Town and the unincorporated area of Larimer County within the Estes Valley Planning Area, which upon adoption, the respective Parties shall replace and supersede the current Estes Valley Comprehensive Plan. If by __________(date – end of 2021?),?)December 31, 2021, the Comprehensive Plan has not been completed or does not extend to cover the Estes Valley Planning Area, the County shall amend its Comprehensive Plan to included policies and maps that address the unincorporated area of the Estes Valley. The Plan also will include a boundary within the Estes Valley Planning Area boundary to delineate areas of the Estes Valley that are Formatted: Indent: Left: 0.5", No bullets or Commented [HR1]: I think this is feasible. If we run into delays, we can amend. But I think it’s helpful to set a target date in the IGA and encourage all to adhere to it. 107 317 Discussion Draft – Sept. 513, 2019 5 suitable for annexation to the Town (e.g., a “town growth boundary,” or another term to be defined), and areas that should remain rural in unincorporated Larimer County. 2.2. Estes Valley Planning Area Boundary. The Estes Valley Planning Area boundary is identified in “Exhibit 1”, and attached hereto and incorporated herein, including and subsequent amendments thereto. 2.3. Land Use Codes. The Parties agree that there shall be prepared a Land Use Code for the Town and a Land Use Code for the County, which upon adoption by the respective parties shall replace and supersede the current Estes Valley Development Code as to that Party. The County’s Land Use Code as currently existing or hereafter amended or superseded is anticipated to include regulations specific to the incorporated area of Larimer County within the Estes Valley. 2.4. Land Use and Zoning Designations. in the unincorporated Estes Valley Planning Area. The County intends to recognize and carry forward the zoning districts and certain development standards of the Estes Valley Development Code when proposing and adopting supplemental regulations to the County Land Use Code for the unincorporated area of the Estes Valley. These disrictsdistricts and standards shall include but are not limited to standards for steep slopes, ridgeline protection, grading and site disturbance, tree and vegetation protection, wildlife habitat protection, exterior lighting, and allowed uses, building heights, and setbacks associated with the relevant zoning districts, that are guided by the Estes Valley Comprehensive Plan.. 2.5. Land Use and Zoning Designations in the Town of Estes Park. The Town intends to recognize and carry forward the zoning districts and certain development standards of the Estes Valley Development Code via preparation and adoption of the Town of Estes Park Development Code. It is anticipated that the Town of Estes Park Development Code’s original adoption will in content be substantially similar to the Town-applicable provisions of the Estes Valley Development Code as it exists at the time of adoption of this Intergovernmental Agreement, provided that the Town of Estes Park Development Code may include appropriate amendments and modifications for clarity and reconciliation of non-harmonious Code sections, or may include changes as deemed appropriate in response to specific land-use requests on behalf of property owners. It is further anticipated that upon adoption of a new Comprehensive Plan, a rewritten Town of Estes Park Development Code that conforms to guidance in the Plan will be prepared and adopted by the Town. 3. LAND USE REGULATIONS AND FEES This section addresses the relevant development standards, procedures, and fees that apply to proposed development in the Estes Valley Planning Area. 3.1. Town Limits. Within the municipal boundaries of the Town of Estes Park as they exist or may be changed through annexation, the Town shall maintain and exercise the right to review and approve development subject to the Town of Estes ParkValley Development Code, as existing or hereafter amended. The Parties agree that, except as modified through appropriate due process in accordance with applicable law and procedures, all Town regulations, standards and procedures shall apply to future development within the incorporated Town of Estes Park. The Parties agree that land-use appeals, interpretations, and variances, including those applied at the building 108 318 Discussion Draft – Sept. 513, 2019 6 permit stage, shall be processed and decided by the Town as provided for in the Town of Estes Park Development Code, as existing or hereafter amended. 3.2. Unincorporated Estes Valley Area. Within the unincorporated area of the Estes Valley, Larimer County shall maintain and exercise the right to review and approve development subject to the Larimer County Land Use Code (including the Estes Valley Overlay District and supplementary regulations). The Parties agree that, except as modified by the supplemental regulations noted below, all County regulations, standards and procedures shall apply to future development within the unincorporated portion of the Estes Valley. The Parties agree that appeals, interpretations, and variances, including those applied at the building permit stage, shall be processed and decided by the County as provided for in the Larimer County Land Use Code. 3.3. Estes Valley Overlay District and Supplemental Regulations: The County will undertake the required legislative process to establish the Estes Valley Overlay Zone District (EV Overlay District) and supplemental land use regulations to implement this Agreement. The County agrees that it will require development applications for Rezonings, Special Review, Development Plans or Site Plans, and Planned Land Division in the unincorporated areas of Estes Valley to meet either the Larimer County development standards, as contained within the Larimer County Land Use Code and its technical supplements or any other standards contained in the Estes Valley Overlay District and supplemental regulations. 3.4. Modifications to Regulations. The Parties agree that the Town or County may allow reasonable modifications from adopted standards within their respective jurisdictions where the Town or County in its respective discretion determines that either: 3.3.1. By reason of exceptional physical conditions or other extraordinary and exceptional situations unique to such property, including, but not limited to, physical conditions such as exceptional narrowness, shallowness, or topography, the strict application of the standard sought to be modified would result in unusual and exceptional practical difficulties, or exceptional and undue hardship upon the owner of the affected property, provided that such difficulties are not caused by an act or omission on the part of the owner or applicant, or 3.3.2. The proposed modification will serve to advance or protect the public interests and purposes of the standards for which the modification is requested equally well or better than a plan which complies with the standard for which a modification is requested. The County agrees it will refer any proposed modifications to the Town for its review and a recommendation. 3.5. Fees for Development: The Parties agree to maintain and administer separate fees with their respective jurisdictions in the Estes Valley Planning Area. 3.5.1. The County’s Capital Expansion fees for roads, community parks, and drainage shall apply within the unincorporated areas of the Estes Valley. 3.5.2. The County’s regional park fee shall not apply within the unincorporated portion of the Estes Valley. Commented [HR2]: Note for Town: This is the County Code’s umbrella term for subdivisions and allied matters. Commented [HR3]: This section refers to Variances as defined and regulated in EVDC. 109 319 Discussion Draft – Sept. 513, 2019 7 4. PARTIES’ ROLES IN DEVELOPMENT REVIEW, COMPLIANCE 4.1. Establishment of Improvement Districts. The County agrees to notify and allow the Town to comment prior to establishing any improvement district within the Estes Valley unincorporated area. 4.2. Utilities and Services. In areas where the Town has jurisdiction and oversight over the delivery of utility services and other services relative to public improvements, the Town agrees to provide a mechanism for the performance of inspections of any utility or other public improvements provided by developers. In areas where special districts have jurisdiction and oversight over the delivery of utility services and other services relative to public improvements, the Town agrees to propose that the Town and the respective special district include terms in the intergovernmental agreement with the respective special district that stipulate that the special district will perform these inspections. The County agrees that it will propose provisions in the supplemental regulations that the Town or the special district may charge developers an appropriate fee for this inspection service. 4.3. Town Development and Improvements in the County. To the extent that development in the Town requires the construction of off-site public improvements in the unincorporated County area of the Estes Valley that are typically not associated with development in the County, the Town agrees to provide a mechanism for maintenance of those off-site public improvements by adjacent property owner. Such improvements include, but are not limited to, curbs and gutters, bicycle and pedestrian facilities, transit facilities, traffic signals, traffic control and traffic calming devices, drainage facilitates, streetscapes, and medians. 4.4. Development Review Staffing Roles 4.4.1. County Review, Town Referral within Estes Valley. Within the Estes Valley Planning Area unincorporated areas, the County agrees to submit proposals for the following proposed development applications to the Town staff for review and comment: Rezoning; Special Review; Public Site Plan, Minor Special review, Special Exception, or any land division application that results in the creation of one or more additional lots. The Town’s review and comment shall be limited to whether shall include consideration of whether and how the proposal is consistent with the Estes Valley Overlay District and supplemental regulations. If the Town staff recommends against approval and the County subsequently grants approval, the County agrees to provide a written statement to the Town outlining the reasons for approval. The Town agrees to provide the County with written comments, if any, within twenty-one (21) days after the County or its authorized representative mails to the Town a request for comments in accordance with state statute. 4.4.2. Town Review, Referral to County for Town Development that May Impact County’s Public Improvements. The Town agrees to provide to the County an opportunity to review and comment upon applications for development within the Town that may affect the County’s interests and public improvements, including, but not limited to, road improvements. 4.5. Additional Review Roles. The Town and the County have additional operating rules, regulations, ordinances and requirements which may apply to development and use of property Commented [HR4]: We should discuss and ensure that this list is comprehensive as to what infrastructure is included and what is not. 110 320 Discussion Draft – Sept. 513, 2019 8 within the Estes Valley Planning Area. These include but are not limited to the following areas of regulation: Table 1: Review Roles of Town of Estes and Larimer County Type of Process or Regulation Within Town of Estes (Who Administers) Within Unincorporated Estes Valley – Larimer County (Who Administers) Floodplain Regulations Town floodplain regulations (Town Community Development) County floodplain regulations (County Engineering) Sign Regulations Town sign regulations (Town Community Development) County sign regulations (LC Community Development) Building Permits Town Building Code (Town Building Official) County Building Code, permit, and inspection programs (County Building Official) Streets and Roads Standards Street standards (Town Engineer) Larimer County Rural Area Street Standards. County road construction, safety, and maintenance (County Engineer) Drainage Drainage standards (Town Engineer) Drainage standards (County Engineer) Public Health and Safety TownCounty Health Department County Health Department Wildfire Construction Wildlife Construction standards in Larimer County’s building code (Town Building Official) Wildlife Construction standards in Larimer County’s building code (County Building Official) Code Compliance Town Code Compliance County Code Compliance Vacation Rentals Approved by Town (Town Maintains its rentals and cap) Those approved roll into County program (County maintains the current cap in the unincorporated area for #__units) Commented [HR5]: We currently defer to County Health for review. Commented [HR6]: Marking for further discussion by both entities. 111 321 Discussion Draft – Sept. 513, 2019 9 5. DEVELOPMENT REVIEW APPROVALS (PLANNING COMMISSION AND BOARD OF ADJUSTMENT) (Note: Options for this section will vary depending on input from elected officials and outcomes of the questionnaire and public process.) 5.1. (Option A.) Estes Valley Planning Commission. Joint Estes Valley Planning Commission for review in unincorporated valley to have the duties, responsibilities, and obligations of the County Planning Commission for the area of the unincorporated Estes Valley, with most final approvals by the Board of County Commissioners. (Note: An alternative is to retain the joint planning commission as an advisory group for the purpose of preparing the Comprehensive Plan and/or transitionally for projects currently in the Town’s development review pipeline.) OR (Option B) Larimer County Planning Commission. The Larimer County Planning Commission shall review development applications in the unincorporated Estes Valley. (Note: Discuss whether to adjust the membership to include a member from the Town.) 5.2. (Option A) Estes Valley Board of Adjustment (or County BOA, Option B). The Larimer County Board of Adjustment shall hear all variance requests pursuant to the terms of conditions of state statute, the Larimer County Land Use Code, and supplemental regulations. 6. ANNEXATION (Note: Discuss which current annexation provisions to carry forward and what new ones to add.) 6.1. Annexation Petition. The County agrees that it will not accept any application for Rezoning; Special Review; Public Site Plan, Minor Special review, Special Exception, or any land division application that results in the creation of one or more additional lots on property that is eligible for voluntary annexation to the Town unless an written annexation petition request which conforms to the Town’s standard annexation conditions is submitted to the Town and is subsequently denied by the Town. If such an annexation petition is denied by the Town, the County may accept said application on the property and, if appropriate, approve it in accordance with the Larimer County Land Use Code. 6.2. Eligibility for Annexation. The Parties agree that the term “eligibility for annexation” shall mean any land that is contiguous to the corporate limits via one point of connection, and that it is anticipated that the Town’s policy to Town would annex as expeditiously as possible all lands eligible for annexation in the Estes vValley at such time that a development proposal and annexation petition, including all required fees and supplemental information, is received from the property owner(s). The Town represents that it fully intends will give due consideration to the desirability of annexing lands at such time that they become eligible for annexation based upon State annexation statutes. When a town growth boundary is defined, lands within that area shall be annexed considered for annexation at such time that a development proposal is presented. 6.3. Future Annexations/Development Agreement. The County agrees that, in the case of lands within the unincorporated area of the Estes Valley Planning Area which are not eligible for annexation but that are proposing Town level development, the County shall require applicants that apply for Rezoning; Special Review; Public Site Plan, Minor Special review, Special Exception, or any land division application that results in the creation of one or more additional lots after the effective date of this Agreement to sign an annexation agreement as a condition of Commented [HR7]: Please see accompanying Attachment B Draft – New Sec. 5A. I took a shot at spelling out transition authority for EVPC and EVBoA, and also suggested an advisory role in Comp Plan(s) for the EVPC members (as a new group, not as a PC.) Commented [HR8]: We’ll want to refine this list. The three highlighted terms are County processes that have no direct counterparts in EVDC to my knowledge. 112 322 Discussion Draft – Sept. 513, 2019 10 development approval. The Town agrees to annex any such land associated with a signed annexation agreement within six (6) months of said land becoming eligible for annexation. 6.4. Annexation of Roadways. The Town agrees to annex the entire width of roadways and all roadways adjacent to Town limits. 6.5. Annexation of Enclaves: The Town agrees that it will review enclaves on annual basis to determine their appropriateness for annexation and the Town’s ability to service said enclaves. If the Town deems an enclave is appropriate for annexation and it can adequately provide services, the Town will strive to expeditiously annex said enclave. (Note: County agreements generally contain stronger language with a commitment to annexation of enclaves.) 7. IMPLEMENTATION OF AGREEMENT 7.1. Transition. Applications submitted prior to the effective date of this Agreement shall be processed pursuant to the law and regulation in effect prior to this Agreement. Applications for development submitted after the effective date of this IGA shall be processed according to this Agreement. 7.2. Supplemental Regulations Timing: The Parties agree that within 45 days from the effective date of this Agreement they will have proposed supplemental regulations to their Codes to implement the terms of this Agreement. Such proposed supplemental regulations will address fees, land uses and development standards. The Parties further agree to undertake the required legislative process to propose amending their respective land use codes or related documents and procedures as necessary to implement this Agreement. (Note: Discuss timeline. County is aiming for concurrently preparing and adopting the supplemental regulations, but 45 days after this Agreement may be more realistic.) 7.3. County Development Review Commencement. County will commence development review on January 1, 2020 for all new applications received on or after January 1, 2020 7.4. Training Regarding this Agreement: The Parties agree to (a) notify newly elected officials, new managers and key staff of the existence of this Agreement, and (b) on an as-needed basis, conduct training sessions on the procedures which are necessary to implement this Agreement. 7.5. Mediation: If the Parities fail to reach agreement on any provisions contained in this Agreement, the Parties agree to engage a trained mediator to help them resolve the issue. 7.6. Agreements with Special Districts. The Town agrees that it will strive to achieve intergovernmental agreements with all special districts which shall require the special districts to plan their facilities according to the Town’s adopted plans. 8. PERFORMANCE OF AGREEMENT Either party may seek specific performance or enforcement of this Agreement in a Court of competent jurisdiction, but neither party shall have any claim or remedy for damages arising from an alleged breach hereof against the other, nor shall this Agreement confer on either Party standing to contest a land use decision or action of the other except as a breach of this Agreement. Commented [HR9]: The principle has merit, but Town and County may not want this to be a blanket requirement. Commented [TM10]: Do we have these now? What does this look like? Commented [HR11]: County staff indicate this may not be relevant for Estes Valley. Further research needed. 113 323 Discussion Draft – Sept. 513, 2019 11 9. THIRD-PARTY RIGHTS This Agreement is not intended to modify the standing the Parties may possess independent of this Agreement. This Agreement is between the Town of Estes Park and Larimer County and no third-party rights or beneficiaries exist or are created hereby. 10. AGREEMENT AMENDMENTS The procedures for amending this Agreement shall be as follows: 10.1. Amendments to the text of this Agreement: The text of this Agreement may be amended only by written agreement of both Parties. Either Party may initiate an amendment, but any such initiation must be in writing. 10.2. Amendments to the Estes Valley Planning Area boundary: The Estes Valley Planning Area Boundary may be amended by written agreement of both Parties. 10.3. Amendments to elements of the Town’s Comprehensive Plan: At least thirty (30) days prior to the adoption of any amendments to the Town’s Comprehensive Plan, the Town shall notify the County and provide the County with an opportunity to make comments on any such amendments to the Town’s Comprehensive Plan that would in any way either (1) affect the Estes Valley Planning Area, (2) call for an amendment to the boundaries, or (3) cause any changes to be made to any of the supplemental regulations. The Town shall notify the County of any such amendment to the Town’s Comprehensive Plan within thirty (30) days of the adoption of any such amendment. As a result of any amendment being made to the Town’s Comprehensive Plan, the County shall not be obligated to amend either this Agreement, its Estes Valley Overlay District or any supplemental regulations. 10.4. Amendments to elements of the Town’s Comprehensive Plan as specifically applicable to unincorporated Estes Valley: At least thirty (30) days prior to the adoption of any amendments to any elements of the County’s Comprehensive Plan that have specific applicability to the unincorporated Estes Valley, the County shall notify the Town and provide the Town with an opportunity to make comments on any such amendments to the County’s Comprehensive Plan that would in any way either (1) affect the Estes Valley Planning Area, (2) call for an amendment to the boundaries, or (3) cause any changes to be made to any of the Town’s regulations. The County shall notify the Town of any such amendment to the County’s Comprehensive Plan within thirty (30) days of the adoption of any such amendment. As a result of any amendment being made to the County’s Comprehensive Plan, the Town shall not be obligated to amend either this Agreement or any Town regulations. 11. SEVERABILITY. If any portion of this Agreement is held by a court in a final, non-appealable decision to be per se invalid or unenforceable as to any Party, the entire Agreement shall be terminated, it being the understanding and intent of the Parties that ever portion of the Agreement is essential and not severable from the remainder. 12. TERM AND TERMINATION OF AGREEMENT This Agreement shall remain in full force and effect for a period of five (5) years from the date of its execution. Thereafter, it shall be automatically renewed for successive five-year terms unless at least six (6) months prior to its scheduled expiration, either Party should notify the other Party in writing of its Commented [HR12]: I think the boundary is also called out in the Comp Plan. If so, an amendment should also be specified for the Plan. We’ll review the Plan on this element. 114 324 Discussion Draft – Sept. 513, 2019 12 decision that the Agreement not be renewed. Either party may terminate this Agreement upon 180 days noticedays’ notice. 13. EFFECTIVE DATE In Witness thereof, the Parties hereto have executed this Agreement to be effective on the Effective Date first written above: Town of Estes Park: By: ________________ Todd Jirsa, Mayor ATTEST: ___________________________ Town Clerk Approved as to Legal Form: Approved as to Content: _____________________________ ________________________ Town Attorney Town ManagerAdministrator The County of Larimer: _____________________________ Tom Donnelly, Chair Board of Commissioners ATTEST: _______________________ 115 325 Discussion Draft – Sept. 513, 2019 13 Angela Myers, Clerk and Recorder Approved as to Legal Form: Approved as to Content: _______________________ ________________________ County Attorney County Manager 116 326 5A. PLANNING COMMISSION(S) AND BOARD(S) OF ADJUSTMENT – TRANSITIONS [DRAFT: 2019-09-13] [NOTE: this is a first draft and intended to represent a policy option, rather than a defined direction] 5A.1. Transitional Estes Valley Planning Commission. The parties hereby continue, for a time- limited transitional period, the Estes Valley Planning Commission (“Transitional EVPC”), with duties, responsibilities, authority, obligations, and operational parameters pursuant to the terms and conditions of this Agreement as follows: 5A.1.1. Authority. The Transitional EVPC shall have authority limited to the following: 5A.1.1.1. The Transitional EVPC shall have all of the duties, responsibilities, and obligations of a Joint Planning Commission pursuant to the provisions of the Estes Valley Development Code or its successor Code(s), as those duties, responsibilities, and obligations apply to land-use applications that are properly filed prior to the effective date of this Intergovernmental Agreement, but that have not reached final disposition by the appropriate final decision-making entity by that date. It is anticipated that all such “pipeline” applications will be considered and decided upon in a deliberatively expeditious fashion. 5A.1.1.2. Members of the Transitional EVPC may, upon passage of appropriate Resolution(s) of the Town of Estes Park Board of Trustees and the Board of County Commissioners of Larimer County, appointed as members of an official Comprehensive Plan Advisory Body for preparation and deliberation toward adoption by appropriate authority(s) of new Comprehensive Plan(s) for the Town of Estes Park, the unincorporated Estes Valley, or both together. 5A.1.1.3. Upon final disposition of all “pipeline” land-use applications pursuant to Section 5.1.1.1, the Transitional EVPC shall sunset and cease existence as a Joint Planning Commission. In accordance with Section 5A.1.1.2, members of the Transitional EVPC are eligible to continue in a Comprehensive Plan Advisory Body capacity. 5A.1.2. Membership. The Transitional EVPC shall be composed of seven (7) members. Three (3) members shall be appointed by the Town and four (4) members shall be appointed by the County. Each member shall serve for a four (4) year term, or until the EVPC’s sunset date, whichever may occur first. It is anticipated the currently serving members of the EVPC will continue as members of the Transitional EVPC, as they are able and willing, and that the appointment process herein will need to be invoked only in the event of a vacancy. 5A.1.3. Residency. All appointees of the Town shall be residents of the Town for at least one (1) year prior to their appointment. All appointees of the County shall be residents of the unincorporated portion of the Estes Valley Planning Area for at least one (1) year prior to their appointment. All members shall continue to be residents of their respective areas during 117 327 their entire terms. A County appointee on the Transitional EVPC residing in an area annexed by the Town may continue to serve the remainder of that member’s term. 5A.2. Estes Valley Transitional Board of Adjustment. The parties hereby continue, for a time- limited transitional period, the Estes Valley Board of Adjustment (“Transitional EVBoA”), with duties, responsibilities, authority, obligations, and operational parameters, pursuant to the terms and conditions of this Agreement as follows: 5A.2.1. Authority. The Transitional EVBoA shall have authority limited to the following: 5A.2.1.1. The Transitional EVBoA shall have all of the duties, responsibilities, and obligations of a Joint Board of Adjustment pursuant to the provisions of the Estes Valley Development Code or its successor Code(s) as those duties, responsibilities, and obligations apply to land-use applications that are properly filed prior to the effective date of this Intergovernmental Agreement, but that have not reached final disposition by the appropriate final decision-making entity by that date. It is anticipated that all such applications will be considered and decided upon in a deliberatively expeditious fashion. 5A.2.1.2. Upon final disposition of all land-use applications pursuant to Section 5A.2.1.1, the Transitional EVBoA shall sunset and cease existence as a Joint Board of Adjustment. 5A.2.2. Membership. The Transitional EVBoA shall be composed of five (5) members. Three (3) members shall be appointed by the Town and two (2) members shall be appointed by the County. Each member shall serve for a three (3) year term, or until the EVBoA’s sunset date, whichever may occur first. It is anticipated the currently serving members of the EVBoA will continue as members of the Transitional EVBoA, as they are able and willing, and that the appointment process herein will need to be invoked only in the event of a vacancy. 5A.2.3. Residency. All appointees of the Town shall be residents of the Town for at least one (1) year prior to their appointment. All appointees of the County shall be residents of the unincorporated portion of the Estes Valley Planning Area for at least one (1) year prior to their appointment. All members shall continue to be residents of their respective areas during their entire terms. A County appointee on the Transitional EVBoA residing in an area annexed by the Town may continue to serve the remainder of that member’s term. 5A.2. Town of Estes Park Planning Commission. The Town shall appoint a Planning Commission in accordance with Title 31 Article 23 Part 2 of the Colorado Revised Statutes and the Town of Estes Park Development Code, with duties, responsibilities, and obligations as specified therein. The Town of Estes Park Planning Commission shall have authority in all applications that are designated in Statute and Code for Planning Commission review within the Town of Estes Park, for all applications filed on or after January 1, 2020. Membership and residency shall be as specified in Title 31 Article 23 Part 2 of the Colorado Revised Statutes and the Town of Estes Park Development Code. It is anticipated that membership will consist of five (5) members appointed by the Town Board for staggered terms. 5A.3. Larimer County Planning Commission. The Larimer County Planning Commission shall … [County may specify additional language here as appropriate.] 5A.4. Town of Estes Park Board of Adjustment. The Town shall appoint a Board of Adjustment in accordance with Title 31 Article 23 Part 3 of the Colorado Revised Statutes and the Town of Estes Park Development Code, with duties, responsibilities, and obligations as specified therein. 118 328 The Town of Estes Park Board of Adjustment shall have authority in all applications that are designated in Statute and Code for Board of Adjustment review within the Town of Estes Park, for all applications filed on or after January 1, 2020. Membership and residency shall be as specified in Title 31 Article 23 Part 3 of the Colorado Revised Statutes and the Town of Estes Park Development Code. It is anticipated that membership will consist of three (3) members appointed by the Town Board for staggered terms. 5A.3. Larimer County Board of Adjustment. The Larimer County Board of Adjustment shall … [County may specify additional language here as appropriate.] 119 329 ____________________________________________________________________________________________________________________ CMS PLANNING & DEVELOPMENT, INC. P.O. BOX 416 ESTES PARK, CO 80517 (970) 231-6200 CMS PLANNING & DEVELOPMENT MEMO To: Mayor Jirsa and Town Board From: Frank Theis Date: September 24, 2019 Re: IGA Discussion In regards to your discussion of the Town/County Land Use IGA, I would like you to consider that the decisions made this year will affect how the community will prepare a new Comprehensive Plan for the Estes Valley (County & Town). In 2020, several new Town Trustees and County Commissioners may be elected, with at least two new County Commissioners. Those elected officials are the ones who will be leading the Comprehensive Planning efforts for the next 2-3 years. It seems fair to those future elected leaders, and their constituents, to delay final decisions on a new IGA. This is my personal and professional opinion, and does not represent a position of the Planning Commission. Thanks for your consideration, Frank Theis 1516 Prospect Mountain Drive Estes Park, CO 330