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TC Packet 06-22-2021_______________________________________________________________________________ MEETING AGENDAS AND PACKETS ARE FOUND AT: WWW.AVON.ORG AGENDAS ARE POSTED AT AVON TOWN HALL, AVON RECREATION CENTER, AVON ELEMENTARY AND AVON PUBLIC LIBRARY IF YOU HAVE ANY SPECIAL ACCOMMODATION NEEDS, PLEASE, IN ADVANCE OF THE MEETING, CALL TOWN CLERK BRENDA TORRES AT 970-748-4001 OR EMAIL BTORRES@AVON.ORG WITH ANY SPECIAL REQUESTS. AVON TOWN COUNCIL MEETING AGENDA TUESDAY, June 22, 2021 MEETING BEGINS AT 5:10 PM (ALL START TIMES LISTED IN RED ARE APPROXIMATE) Hybrid meeting; in-person at Avon Town Hall or virtually through Zoom AVON TOWN COUNCIL EXECUTIVE SESSION BEGINS AT 4:00 PM Executive Session for the purpose of discussing specialized details of security arrangements related to Town Hall pursuant to Section 24-6-402(3)(a)(IV), C.R.S. (Police Chief Greg Daly) (40 Minutes) AVON LIQUOR LICENSING AUTHORITY MEETING BEGINS AT 5:00 PM (See Agenda on page 3) AVON TOWN COUNCIL PUBLIC MEETING BEGINS AT 5:10 PM 1. CALL TO ORDER AND ROLL CALL 5:10 2. APPROVAL OF AGENDA 3. DISCLOSURE OF ANY CONFLICTS OF INTEREST RELATED TO AGENDA ITEMS 4. PUBLIC COMMENT – COMMENTS ARE WELCOME ON ITEMS NOT LISTED ON THE FOLLOWING AGENDA Public comments are limited to three (3) minutes. The speaker may request an additional one (1) minute, which may be approved by a majority of Council. 5. BUSINESS ITEMS 5.1. Avon Police Department Annual Presentation (Police Chief Greg Daly) (30 Minutes) 5:15 5.2. Support Letter for SHRED Act (Town Manager Eric Heil) (5 Minutes) 5:45 5.3. Presentation: Recreation Update (Interim Recreation Director Michael Labagh) (20 Minutes) 5:50 5.4. Consideration of Memorandum of Understanding: Climate Action Collaborative Governing Board (Town Manager Eric Heil) (5 Minutes) 6:10 5.5. Public Hearing: Second Reading of Ordinance 21-08 Model Traffic Code (Town Prosecutor Elizabeth Pierce-Durance (5 Minutes) 6:15 5.6. First Reading Ordinance 21-05 Concerning the Management of Plastic Products (Town Attorney Paul Wisor) (20 Minutes) 6:20 5.7. First Reading of Ordinance 21-09 Approving Code Text Amendments to Chapter 7 of the Avon Municipal Code (Planning Director Matt Pielsticker) (20 Minutes) 6:40 5.8. Presentation: Digital Messaging Signs (Town Engineer Justin Hildreth) (30 Minutes) 7:00 5.9. Public Hearing: Outdoor Use of Amplified Sound Permit Application (CASE Manager Danita Dempsey) (5 Minutes) 7:30 5.10. Resolution 21-15 Amending and Re-Adopting the Simplified Rules of Order for Avon Town Council Meetings to Reflect Remote Attendance Policy (Town Attorney Paul Wisor and Town Manager Eric Heil) (15 Minutes) 7:35 5.11. Electric Bus Purchase Agreement (Mobility Director Eva Wilson) (5 Minutes) 7:50 5.12. Diesel Bus Purchase Agreement (Mobility Director Eva Wilson) (5 Minutes) 7:55 5.13. Acceptance of Grant Award – Coronavirus Response and Relief Supplemental Appropriation Act _______________________________________________________________________________ MEETING AGENDAS AND PACKETS ARE FOUND AT: WWW.AVON.ORG AGENDAS ARE POSTED AT AVON TOWN HALL, AVON RECREATION CENTER, AVON ELEMENTARY AND AVON PUBLIC LIBRARY IF YOU HAVE ANY SPECIAL ACCOMMODATION NEEDS, PLEASE, IN ADVANCE OF THE MEETING, CALL TOWN CLERK BRENDA TORRES AT 970-748-4001 OR EMAIL BTORRES@AVON.ORG WITH ANY SPECIAL REQUESTS. Grant (Mobility Director Eva Wilson) (5 Minutes) 8:00 5.14. Consideration of Memorandum of Understanding: The Colorado EV Rental Car Program (Mobility Director Eva Wilson) (5 Minutes) 8:05 5.15. Riverfront Lane Revocable License Agreement (Planning Director Matt Pielsticker) (5 Minutes) 8:10 6. MINUTES 6.1. Approval of June 8, 2021 Regular Council Meeting Minutes (Town Clerk Brenda Torres) (5 Minutes) 8:15 7. WRITTEN REPORTS 7.1. Monthly Financials (Senior Accountant Joel McCracken) 7.2. June 15th Planning and Zoning Commission Meeting Abstract (Planner David McWilliams) 7.3. Upper Eagle Regional Water Authority May 27, 2021 Meeting Summary (Mayor Smith Hymes) 7.4. Avon Police Department Disposition on Forfeited Properties for 2020 (Police Chief Greg Daly) 7.5. Public Wi-Fi Firewall (IT Manager Robert McKenner) ** Indicates topic will be discussed at future agenda’s 8. MAYOR AND COUNCIL COMMENTS & MEETING UPDATES (15 MINUTES) 8:20 9. ADJOURN 8:35 Public Comments: Council agendas shall include a general item labeled “Public Comment” near the beginning of all Council meetings. Members of the public who wish to provide comments to Council greater than three minutes are encouraged to schedule time in advance on the agenda and to provide written comments and other appropriate materials to the Council in advance of the Council meeting. The Mayor shall permit public comments for any action item or work session item and may permit public comment for any other agenda item, and may limit such public comment to three minutes per individual, which limitation may be waived or increased by a majority of the quorum present. Article VI. Public Comments, Avon Town Council Simplified Rules of Order, Adopted by Resolution No. 17-05. FUTURE AGENDAS JULY 13 o Receipt of 2020 Audit Report o Presentation: CIP Project Update o USFS 717.1B Emergency Egress Planning o Work Session: East Harry A. Nottingham Parking Improvements o Presentation: Use Tax o First Reading of Ordinance 21-10 Enacting Chapter 2.05 of the Avon Municipal Code – Removal of Council Members o Second Reading of Ordinance 21-09 Approving Code Text Amendments to Chapter 7 of the Avon Municipal Code o Resolution 21-XX supporting efforts to protect 30% of U.S. Lands, Waters, and Oceans by 2030 o Quarterly Update on 2021 department goals AVON LIQUOR LICENSING AUTHORITY MEETING AGENDA TUESDAY, JUNE 22, 2021 MEETING BEGINS AT 5:00 PM (ALL START TIMES LISTED IN RED ARE APPROXIMATE) Hybrid meeting; in-person at Avon Town Hall or virtually through Zoom 1. CALL TO ORDER AND ROLL CALL 5:00 2. APPROVAL OF AGENDA 3. DISCLOSURE OF ANY CONFLICTS OF INTEREST RELATED TO AGENDA ITEMS 4. PUBLIC COMMENT – COMMENTS ARE WELCOME ON ITEMS NOT LISTED ON THE FOLLOWING AGENDA [AN INITIAL THREE (3) MINUTE LIMIT ALLOWED TO EACH PERSON WISHING TO SPEAK . SPEAKER MAY REQUEST MORE TIME AT THE END OF THE THREE (3) MINUTES, WHICH MAY BE APPROVED BY A MAJORITY OF THE COUNCIL .] 5. PUBLIC HEARING FOR REPORT OF CHANGES -MODIFICATION OF PREMISES 5:00 5.1. APPLICANT NAME: VAIL COUNTRY CLUB, LLC D/B/A VAIL CC LOCATION: 240 CHAPEL SQUARE UNIT B-126 TYPE: TAVERN MANAGER: KENNY THAYER 6. PUBLIC HEARING FOR A NEW H&R LIQUOR LICENSE APPLICATION 5:05 6.1. APPLICANT NAME: MEZZO LLC D/B/A FATTORIA LOCATION: 48 E BEAVER CREEK BLVD. UNITS 105, 106, 107 AND 108 TYPE: HOTEL AND RESTAURANT (CITY) OWNERS: NOAH BENDER AND JAMES PAVELICH 7. APPROVAL OF THE MINUTES FROM JUNE 08, 2021 LIQUOR LICENSING AUTHORITY MEETING (5 Minutes) 5:10 8. WRITTEN REPORT 8.1. REPORT ON RECENT ADMINISTRATIVE APPROVALS (LIQUOR LICENSING AUTHORITY SECRETARY BRENDA TORRES) 9. ADJOURNMENT 5:10 970-748-4001 btorres@avon.org TO: Avon Liquor Licensing Authority FROM: Brenda Torres, Liquor Licensing Authority Secretary RE: PUBLIC HEARING for Modification of Premises - Vail Country Club DATE: June 08, 2021 SUMMARY: Current licensee Vail Country Club LLC d/b/a Vail CC, has submitted a Report of Changes application for modification of premises. The Applicant has submitted materials required by the State of Colorado Liquor Enforcement Division, which materials are in order. Documents are on file in the Town Clerk’s office. Today’s hearing has been properly noticed. The Applicant is expected to be present to answer Authority questions. His request is made in Section 9 of the application form, and is related to the following: *Addition of outside patio Mr. Thayer’s application satisfies these criteria. BACKGROUND: Regulation 47-302 Changing, Altering, or Modifying Licensed Premises. Basis and Purpose. The statutory authority for this regulation is located at subsections 44-3-202(1)(b), 44- 3-202(2)(a)(I)(A), and 44-3- 202(2)(a)(I)(D), C.R.S. The purpose of this regulation is to establish procedures for a licensee seeking to make material or substantial alterations to the licensed premises and provide factors the licensing authority must consider when evaluating such alterations for approval or rejection. A. After issuance of a license, the licensee shall make no physical change, alteration or modification of the licensed premises that materially or substantially alters the licensed premises or the usage of the licensed premises from the plans and specifications submitted at the time of obtaining the original license without application to, and the approval of, the local and state licensing authorities. For purposes of this regulation, physical changes, alterations, or modifications of the licensed premises, or in the usage of the premises requiring prior approval, shall include, but not be limited to, the following: 1.Any increase or decrease in the total size or capacity of the licensed premises. 2.The sealing off, creation of or relocation of a common entryway, doorway, passage, or other such means of public ingress and/or egress, when such common entryway, doorway or passage alters or changes the sale or distribution of alcohol beverages within the licensed premises. For more references to Regulation 47-302 please follow this link: https://www.sos.state.co.us/CCR/GenerateRulePdf.do?ruleVersionId=8009&fileName=1%20CCR%20203-2 The applicant has submitted the required materials for making this request to the Local Authority and the State of Colorado liquor enforcement division. Diagrams of the current premises and of the proposed area to add to current licensed premises have been included. Page 2 of 2 Kenny Thayer, representing Vail CC, will be present to provide support for this application as well as answer any questions. There are a local and a state fee associated with modification of premises applications; the applicant has submitted these fees. LICENSING AUTHORITY: The Town Council, acting as the Local Liquor Licensing Authority, will consider a Modification Application as submitted by Vail CC. A public hearing is required before final action is taken. PROPOSED MOTION: “I move to approve (or deny based upon statutory grounds for denial) the Modification of Premises application made by Vail Country Club LLC d/b/a Vail CC.” Thank you, Brenda MODIFICATION OF PREMISES ATTACHMENTS: The Applicant for the special event permit has submitted the following materials: ✓ Attachment A: Permit Application and Report of Changes (State form DR 8442) ✓ Attachment B: Map diagram of the proposed modification, including an outside area ATTACHMENT A (970) 748-4001 btorres@avon.org TO: Avon Liquor Licensing Authority FROM: Brenda Torres, Liquor Licensing Authority Secretary RE: PUBLIC HEARING for New Hotel & Restaurant (City) Liquor License for Mezzo, LLC d/b/a Fattoria DATE: June 11, 2021 SUMMARY: Mezzo LLC d/b/a Fattoria, as the Applicant, is applying for a new Liquor License. The Applicant has submitted the appropriate materials required by the State of Colorado Liquor Enforcement Division and all materials are in order. These documents are on file in the Town Clerk’s office. ACTION BEFORE THE LOCAL LIQUOR LICENSING AUTHORITY: Public Hearing will be hosted both in a virtual format, using Zoom.us at Avon.org, and in person at Avon Town Hall – 100 Mikaela Way, Avon, Colorado. Town Council acting as the Local Liquor Licensing Authority is asked to consider the liquor license application for the following new Hotel & Restaurant (City) Liquor License: Applicant: Mezzo, LLC d/b/a Fattoria Location: 48 East Beaver Creek Boulevard, Units #105, 106, 107 & 108 Type: Hotel & Restaurant (City) Liquor License Owners: Noah Bender & James Pavelich Action: Resolution No. 21-02 BACKGROUND: Attached is the “Report of Findings” for this application, which was submitted by the applicant on May 19, 2021. The Town Clerk and Town Special Counsel have reviewed the application for complete information and public notice was posted on the premises, Town website, and published in the Vail Daily as documented in the report of findings. A background investigation has been completed by the Avon Police Department and Colorado Bureau of Investigations. Report is on file with the Clerk and a copy will be provided separately to the Liquor Authority Board. These premises were previously licensed, which license expired on December 12, 2020. FINDINGS: The information in the report addresses how the applicant has met the criteria outlined in Section 5.08 Liquor Licenses of the Avon Municipal Code and the State Liquor and Beer Code. The report indicates that the applicant has the burden of proving he is qualified to hold the license. The applicant also has the burden of proving that the reasonable requirements of the neighborhood and the desires of the community require the granting of the license. A petition survey has been submitted; this information will assist in the determination of the “desires & needs of the neighborhood”. It is noted that the petition, with 51 signatures, shows 100% favor for this type of license in this neighborhood. The applicant has submitted a diagram of the premises. The owner has been notified and will attend the meeting. The application fees for the liquor licensing have been submitted for both the Town and State of Colorado. If the Authority decides to approve the application, a resolution is attached, which if adopted takes this action. A motion granting the application is proposed below. If the Authority is considering denial for grounds, the matter should be set for additional hearing at which time those grounds may be answered by the applicant. Page 2 btorres@avon.org PROPOSED MOTION: “I move to approve (or deny based upon statutory grounds for denial) Liquor Licensing Authority Resolution 21-02 Approving the application of Mezzo, LLC d/b/a Fattoria for a New Hotel and Restaurant (City) Liquor License.” Thank you, Brenda NEW LIQUOR LICENSE APPLICATION ATTACHMENTS: The Applicant for the new liquor license has submitted the following materials: Attachment A: Colorado Liquor Retail License Application (State form DR 8404) Attachment B: Diagram of Premises Attachment C: Report of Findings Attachment D: Resolution No. 21-02, Approving the Application of Mezzo, LLC d/b/a Fattoria for a New Hotel and Restaurant (City) Liquor License The following documents as part of the application submittal are on file at the Town Clerk’s offi ce: Lease Agreement Articles of Organization Certificate of Good Standing Individual History Record & Background check reports from Avon Police Department & CBI Petition to Avon Liquor Licensing Authority ADDENDUM TO MEMO FOR NEW LIQUOR LICENSE APPLICATIONS: Background on the Role of Liquor Licensing Authority in Consideration of New Licenses: The Avon Town Council acting as the Local Liquor Licensing Authority has the duty to conduct hearings and make findings of fact as to whether to grant or deny a new local liquor license. The State Licensing Authority cannot grant or issue any "new license" until the Authority has first approved the application by conducting a hearing for such license. If the Authority denies the application, the Executive Director of the State of Colorado cannot override its decision. If the Authority approves a license, the State Licensing Authority cannot refuse to issue the license except upon hearing with a 15 -day notice to the applicant and the Authority. Once the state license is received by the Town Clerk's Office and the Certificate of Occupancy has been received from the Building Department, the Town and State licenses can be issued. The Town Clerk, Town Attorney and Police Department handle the review of the liquor license applications administratively. A “Report of Findings” is completed by the Town Clerk & provided the applicants five days prior to the hearing. The Authority members are provided the application materials when it appears on the Liquor Board Agenda. A public hearing is conducted for all new applications. The Local Authority’s decision is usually given at the conclusion of the hearing although it may be delayed. The decision must be given in writing within 30 days after the date of the hearing and may follow in the form of a resolution. The motion to approve or disapprove should be explicit stating the exact reasons for denial or approval. A motion to deny a license must be based on evidence presented at the hearing. Page 3 btorres@avon.org The Liquor Code of Colorado provides that in making any decision, the Local Licensing Authority must consider the following before approving or denying the application: ▪ Facts & evidence resulting from the investigation & any facts brought to the attention of the Authority. ▪ The reasonable requirements of the neighborhood ▪ The desires of the inhabitants of the neighborhood. ▪ The number, type & availability of liquor outlets located in or near the neighborhood under consideration. ▪ Any other pertinent matters affecting the qualifications of the applicant for the conduct of the type of business proposed. Requests for licenses may be denied for various reasons such as the applicant is not of good moral character, the applicant's character, record, or reputation is unsatisfactory, or the proposed outlet is within 500 feet of any school. ATTACHMENT A ATTACHMENT B LOCAL LIQUOR LICENSING AUTHORITY TOWN OF AVON, COLORADO Report of Findings FattoriaTown of Avon Page 1 of 2 RE THE APPLICATION OF ) MEZZO, LLC D/B/A FATTORIA ) REPORT OF FINDINGS 48 E BEAVER CREEK BLVD SUITES 105, 106, 107 AND 108 ) AVON, COLORADO ) FOR A NEW HOTEL & RESTAURANT (CITY) LIQUOR LICENSE ) TO: THE APPLICANT ABOVE AND OTHER INTERESTED PARTIES SUBMITTED BY: BRENDA TORRES, TOWN CLERK, TOWN OF AVON DATE: JUNE 11, 2021 PURSUANT to the Statutes of the State of Colorado, the Ordinances of the Town of Avon, and the Rules and Procedures of the Local Licensing Authority, the applicants are hereby advised that with regard to the application for a Hotel & Restaurant Liquor License filed with the Town Clerk’s Office on May 19, 2021, an investigation has been made, and the Report of Findings is as follows: 1.The location of the new establishment, Mezzo LLC d/b/a Fattoria is 48 E Beaver Creek Blvd Suites 105, 106, 107 and 108, Avon, Colorado. 2.From evidence submitted, the applicant is entitled to possession of the premises as documented by a “Lease Agreement” with a commencement date of May 1, 2021 and executed between the applicant and The Ark LLC. The applicant has submitted a diagram of the premises showing the floor plan of the building. The premise is approximately 3,600 square feet in size. 3.The operation of a business and sale of liquor in this the proposed location is in an area permitted under the applicable zoning laws of the Town of Avon. The applicant is not required to obtain a license until the business is established. Noah Bend er, however, has been well established with the Town for his other business Southside Benderz. Their sales tax and business licenses are paid and renewed in a timel y manner every month. 4.The proposed building in which the liquor is to be sold is not located within 500' of any public or parochial school or the principal campus of any college, university or seminary. 5.The appropriate documents, i.e. individual history rec ords & fingerprints, required to conduct the background investigation were submitted to the Colorado Bureau of Investigation (“CBI”) and Avon Police Department. The results will be provided to the Liquor Authority Board. The final background report from CBI has been received. See below for name of applicant: Title Name Address Telephone Owner Owner Noah Bender James Pavelich PO Box 99 Vail, CO 81658 PO Box 99 Vail, CO 81658 (603) 545-8375 (603) 545-8375 ATTACHMENT C LOCAL LIQUOR LICENSING AUTHORITY TOWN OF AVON, COLORADO Report of Findings FattoriaTown of Avon Page 2 of 2 6. The applicant has submitted the appropriate application fees to the Town Clerk for co sts associated with a new Concurrent Review application. If the H&R License is approved by Avon’s Local Liquor Authority, the appropriate executed paperwork will be forwarded to the L iquor Enforcement Division for its approval and issuance of the State lic ense. Upon receipt of the State License, the Town Clerk will issue the town license to the owners. 7. The public hearing on this application will be held by a Hybrid meeting, virtually via Zoom.us and in person on Avon Town Hall, 100 Mikaela Way, on June 22, 2021 at 5:00 p.m. Public Notice was given regarding said application and scheduled hearing date and was published in the Vail Daily on June 14, 2021 and posted on premises of the proposed location at least ten days prior to the hearing. At said hearing, the applicant shall have an opportunity to be heard regarding all matters related to the application, including all matters se t forth herein. The applicant has agreed to be present at the virtual hearing. 8. The “neighborhood” has been established by the Avon Liquor Licensing Authority with the adoption of Resolution No. 04-04 on November 23, 2004, defining it as “the neighborhood to be served by any applicant for liquor license of any kind shall be the Town of Avon, including residents of the Town, persons working in the Town and visitors to the Town”. 9. At the public hearing, the applicant has the burden of proving that he is qualified to hold the license applied for, and that his character, record and reputation are satisfactory. The applicant also has the burden of providing prima facie evidence of neighborhood need for the license requested, which he may do with presentation of petitions, remonstrances, or otherwise. The applicant filed the petition that shows unanimous support for this “Hotel and Restaurant Liquor License” in this location with a total of 51 signatures. 10. The applicant is advised to obtain and read a copy of the State of Colorado Liquor and Beer Codes and Regulations and the Town Code Section on Liquor Licenses (Title 5, Chapter 5.08). These regulations can be found on the foll owing websites: https://www.colorado.gov/pacific/enforcement/liquor https://library.municode.com/co/avon/codes/home_rule_charter_and_code?nodeId=CD_TIT5BUT ALIRE_CH5.08LILI E-mailed on June 14, 2021. LIQUOR LICENSING AUTHORITY TOWN OF AVON RESOLUTION 21-02 A Resolution Approving the Application of Mezzo, LLC d/b/a Fattoria for a New Hotel and Restaurant (City) Liquor License WHEREAS, on May 19, 2021, the Liquor Licensing Authority of the Town of Avon (“the Authority”) did receive and consider the application of Fattoria, whose mailing address is PO Box 99, Vail, Colorado, for a new Hotel and Restaurant (City) License located at 48 E Beaver Creek Blvd #105, 106, 107, and 108, Avon, Colorado; and WHEREAS, the Authority finds that Notice of Application was published in the Vail Daily on June 14, 2021 and proof of publication by the publisher of the Vail Daily was received; and WHEREAS, the Authority finds that the application was in proper form and accompanied by the necessary supplementary evidentiary matter required by law, the regulations of the State of Colorado and the Authority; and WHEREAS, the application was supported by the applicant’s presentation to the Authority and by a petition containing 51 signatures in favor; and WHEREAS, the neighborhood to be served by the proposed licensee has been determined to be the Town of Avon, including residents of the Town, persons working in the Town and visitors to the Town as stated in TC Resolution No. 04-04 adopted on November 23, 2004. NOW, THEREFORE, THE LIQUOR LICENSING AUTHORITY OF THE TOWN OF AVON DO ES FIND: 1.The applicant is of good moral character and reputation. 2.The neighborhood to be served by the applicant is the Town of Avon, including residents of the Town, persons working in the Town and visitors to the Town. 3.There does exist a reasonable requirement in such neighborhood for the type of license for w hich application is made. 4.The adult inhabitants of the Town desire that the license be granted. ADOPTED THIS JUNE 22, 2021 BY THE LOCAL LIQUOR AUTHORITY. TOWN OF AVON, COLORADO ______________________________ __________________________ Sarah Smith Hymes, Chairman Brenda Torres, Secretary ATTACHMENT D AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES TUESDAY, JUNE 08, 2021 SETUP AS A HYBRID MEETING (BOTH IN PERSON & VIA ZOOM) 1. CALL TO ORDER AND ROLL CALL The meeting was hosted in person, as well as in a virtual format, using Zoom.us. Chairwoman Smith Hymes called the meeting to order at 5:00 p.m. A roll call was taken and Board members present were Amy Phillips, Scott Prince, Lindsay Hardy, Tamra Underwood, RJ Andrade and Chico Thuon. Also present were Town Manager Eric Heil, Town Attorney Paul Wisor, Police Chief Greg Daly, Public Works Director Gary Padilla, Mobility Director Eva Wilson, Executive Assistant to the Town Manager Ineke de Jong, and Secretary Brenda Torres. 2. APPROVAL OF AGENDA Video Start Time: 00:01:08 Board member Underwood moved to approve the agenda as presented. Vice Chairwoman Phillips seconded the motion and the motion passed unanimously. 3. DISCLOSURE OF ANY CONFLICTS OF INTEREST RELATED TO AGENDA ITEMS Video Start Time: 00:01:31 No conflicts of interest were disclosed. 4. PUBLIC COMMENT – COMMENTS ARE WELCOME ON ITEMS NOT LISTED ON THE FOLLOWING AGENDA Video Start Time: 00:01:41 Chairwoman Smith Hymes asked for public comments by anyone present in person, then asked for any virtual public comment by anyone via video/audio, via phone or via email. No public comments were made. 5. TEMPORARY MODIFICATION OF PREMISES Video Start Time: 00:02:12 5.1. APPLICANT: BOB’S PLACE LLC D/B/A BOB’S PLACE LOCATION: 100 WEST BEAVER CREEK BOULEVARD TYPE: TEMPORARY MODIFICATION OF PREMISES (HOTEL & RESTAURANT (CITY)) MANAGER: ROBERT K. DOYLE Sarah Springer was present and answered questions from Board members. Board member Thuon moved to approve the temporary modification of premises application made by Bob’s Place LLC d/b/a Bob’s Place. Vice Chairwoman Phillips seconded the motion and the motion passed unanimously. 6. LIQUOR LICENSE RENEWAL Video Start Time: 00:06:06 6.1. APPLICANT: YERF LLC D/B/A TICINO ITALIAN RESTAURANT LOCATION: 100 WEST BEAVER CREEK BOULEVARD, UNIT 127 TYPE: HOTEL & RESTAURANT (CITY) MANAGER: CHARLES FREY AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES TUESDAY, JUNE 08, 2021 SETUP AS A HYBRID MEETING (BOTH IN PERSON & VIA ZOOM) Special Counsel Elizabeth Pierce Durance explained that the lease is ending in September for Ticino. The owner present, Charles Frey, explained that the owner of the builing is selling the property and does not wish to renew the lease. Charles Frey is waiting to see if someone purchases the property to decide whether they will relocate or not. Board member Thuon moved to approve the liquor license renewal application for Yerf LLC d/b/a Ticino Italian Restaurant. Vice Chairwoman Phillips seconded the motion and the motion passed unanimously. 7. SPECIAL EVENTS LIQUOR PERMIT Video Start Time: 00:09:49 7.1. APPLICANT NAME: BRAVO! VAIL MUSIC FESTIVAL EVENT: LINDA & MITCH HART SOIRÉE SERIES – AL FRESCO 2021 DATE AND TIME: JUNE 28, 2021 11:00 AM – 11:00 PM LOCATION: 108 PRIMROSE, MOUNTAIN STAR TYPE: SPECIAL EVENT LIQUOR PERMIT MANAGER: EMILY BLOCK Jason Denhart was present and answered several questions from Board members. Board member Thuon moved to approve the special events permit application for the Linda & Mitch Hart Soirée Series – Al Fresco 2021 special event on June 28, 2021. Chairwoman Phillips seconded the motion and the motion passed unanimously. 8. APPROVAL OF THE MINUTES FROM MAY 25, 2021 MEETING Video Start Time: 00:12:38 Board member Prince moved to approve the minutes from the May 25, 2021 Liquor Licensing Authority Meeting. Board member Underwood seconded the motion and the motion passed unanimously. 9. WRITTEN REPORT 9.1. REPORT ON RECENT ADMINISTRATIVE APPROVALS 10. ADJOURNMENT The Avon Liquor Authority meeting adjourned at 5:13 p.m. These minutes are only a summary of the proceedings of the Local Liquor Licensing Authority meeting. They are not intended to be comprehensive or to include each statement, person speaking or to portray with complete accuracy. The most accurate records of the meeting are the audio of the meeting, which is housed in the Town Clerk' s office, and the video of the meeting, which is available at www.highfivemedia.org. AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES TUESDAY, JUNE 08, 2021 SETUP AS A HYBRID MEETING (BOTH IN PERSON & VIA ZOOM) RESPECTFULLY SUBMITTED: ____________________________________ Brenda Torres, Secretary APPROVED: Sarah Smith Hymes ___________________________________ Amy Phillips Chico Thuon Scott Prince Tamra Underwood Lindsay Hardy RJ Andrade (970) 748-4001 btorres@avon.org AVON LIQUOR LICENSING AUTHORITY WRITTEN REPORT To: Avon Liquor Licensing Authority From: Brenda Torres, Liquor Licensing Authority Secretary Date: June 14, 2021 Topic: REPORT ON RECENT LIQUOR LICENSE RENEWALS SUMMARY: The Town’s local liquor licensing regulations allow for administrative review and approval of routine liquor license applications, including: (1) Renewals, (2) Modification of Ownership, (3) Modification of Managers, and (4) Special Event Permits for events already approved by the Town Council. Requirements for administrative approval include that the application is complete, there is no new criminal activity on the background and there are no liquor code violations during the last year. Renewals require notice to be posted for seven days and Special Event Permits for ten days and require the Town Clerk to accept comments and/or requests for a public hearing before the Avon Town Council. In all cases, the Town Clerk has the discretion to refer the application to the Avon Town Council. The Town Clerk is required to report administrative approvals, which is the reason for this written report. Dating back to June 08, 2021, the Town has received one Renewal Application that has met all the requirements for administrative review and approval and was ultimately approved by the Town Clerk. No comments, complaints, or request for hearings were received. It is as follows: Renewals: Applicant: China Garden Inc d/b/a China Garden Location: 100 W Beaver Creek Blvd. Suite 125 Type: Hotel and Restaurant (City) Manager: Juan Carlos Hernandez (970) 748-4049 gdaly@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Greg Daly, Chief of Police RE: Avon Police 2020 Annual Report to include a Six-Month Update DATE: May 11, 2021 SUMMARY: Madam Mayor and Members of Avon Town Council, it is my pleasure to present the 2020 Avon Police Department Annual Report to include a six-month update since the last six-month report in November 2020. This report showcases the excellent professional police services that the men and women of the department deliver to our community 24 hours each day, 365 days a year. It highlights the leadership that the men and women take in many community outreach endeavors and it also highlights the amazing collaboration we share with our partners in law enforcement, the fire service, emergency medical services, medical and behavioral health. Page 2 of 33 Subjects in this report include: • Department Overview (page 2) • Administration of the Department (page 3) • A recap of significant 2020 department events/ activity to include activity since last six-month report 11 November 2020: (page 3) • Community Policing/Engagement Projects and Involvement (page 7) • Activity since Nov 2020 (page 9) • Stolen vehicles update (page 11) • 2020 Senate Bill 217 (page 12) • Avon PD Org Chart (page 16) • Avon PD 2020 Annual Use of Force Chart (page 17) • Professional standards/internal affairs investigations (page 18) • 2020 Annual Reporting of Crime and Traffic Statistics (page 18) • Crime/ Traffic Statistics and Calls for Service (page 20) • Avon Police Department Response Times (page 23) • Alcohol Drug related crimes (page 25) • Arrests (page 25) • Property Crimes (page 26) • Crimes against persons (page 28) • Traffic crashes (page 31) • Traffic enforcement (page 31) • Ethnicity of traffic contacts (page 32) DEPARTMENT OVERVIEW: The Avon Police Department (APD) is a full-service municipal law enforcement agency responsible to protect and serve the citizens, residents, and guests of the Town of Avon 24/7, with an official population of 6,447, (2010 U.S Census) rising to an estimated 10,000 seasonal population. The Department consists of twenty (20) sworn police officers, one (1) part time police sergeant, two (2) non-sworn administrative employees, one (1) part time non-sworn administrative employee and one (1) part time seasonal (Summer) non-sworn community response officer/ranger. We are approved a second CRO/ranger position and are currently trying to recruit. Avon Police employees focus our collective attention on the Department’s Mission Statement “We serve to better our community”, to our motto of “Count on Us” and to our Departmental Goals on a day-to-day basis to ensure the safety and security of residents and visitors in our community. We operate under our Oath of Honor and follow our core values of: Benevolence (We are kind, compassionate and treat all with dignity and respect) Unity (We are guardians and peacekeepers of our community) Improvement (We constantly seek to improve ourselves individually and as a team) Leadership (We inspire others through our actions and words) Dedication (We are committed to our victims, to our community and to each other) Page 3 of 33 Our departmental main focuses are:  Be a trusted community public service agency for our citizens/ residents and guests, trusting that when they reach out to us or when they are contacted by us, they will be respected for their diversity and we will respect their constitutional rights.  Respond to 911 citizen/resident/guest’s emergency calls in a safe and timely manner.  Professionally investigate crimes, prepare high level criminal prosecutions for the District Attorney Office or for the Town Prosecutor and seek justice and healing for our victims.  Continue to enhance traffic safety. Seek behavioral change through educational interventions/ warnings but issue tickets/summons to those who egregiously disrespect community values/ laws or to repeat offenders who did not change behavior from a previous warning.  Through our patrol presence in our neighborhoods, on our streets and in our business districts deter criminal activity.  Seek every opportunity to outreach to our community through as many community events that we can manage.  Have a school resource presence as much as possible in our elementary school to foster a sense of safety, security, and trust with our children. The men and women of the Avon Police Department sincerely appreciate the continued support of the Avon Town Council and Town Manager for the police department and for their continued commitment to the public safety of our citizens, residents, and guests. ADMINISTRATION OF THE DEPARTMENT: The Avon Police Department is led by Police Chief Greg Daly and Deputy Chief Coby Cosper. There are five front line supervisors; four Patrol Sergeants and a Detective Sergeant. Each Patrol Sergeant oversees three (3) police officers when fully staffed. The twelve (12) Patrol Officers and four (4) Patrol Sergeants work 11.5-hour shifts. The Detective Sergeant supervises a detective, and they collectively investigate major crimes, narcotic investigations and manage major programs such as police training. The part time sergeant has multiple responsibilities to include firearms range master, defensive tactics instructor, recruitment backgrounds, department in service and SWAT training and special event coordination. A RECAP OF SIGNIFICANT 2020 DEPARTMENT EVENTS/ ACTIVITY TO INCLUDE ACTIVITY SINCE LAST SIX-MONTH REPORT 11 NOVEMBER 2020:  During the current COVID-19 pandemic, the Avon PD team has ensured continuity of operations, protecting, and serving our citizens, residents, and guests. The police department building has remained open throughout the crisis in order to provide a sense of normalcy to those that we serve. The police officers and administrative service officers have adapted to the ever-changing environment whilst maintaining sufficent staff in the office and on the streets. During the first few months of the pandemic, nighttime officers turned on their solid cruise lights while on patrol at night to show presence and offer some comfort during those tense and uncertain times. We have been working collaboratively with all Town of Avon Departments, with Eagle County Public Health, with Eagle River Fire, Eagle County Paramedic Page 4 of 33 Services, partner Law Enforcement agencies and with local medical care facilities throughout this crisis.  Throughout the pandemic, Deputy Chief Cosper has been part of the Eagle County Emergency Operations Center managing the Emergency Support Function 13 (ESF13), law enforcement/ public safety, keeping all law enforcement leaders updated on public health order changes, formulating and ensuring the dispersion of personal protective equipment to all law enforcement in the county, communicating with our EMS and Fire Department partners and updating standard operating procedures for police officers responding to routine calls and how to respond to suspected COVID-19 cases. In addition, as part of the preparation for COVID-19 crisis, Deputy Chief Cosper completed a Town of Avon continuity of operations plan for Town governance.  Sgt. Jamison regularly instructs “Alive at 25” youth driver education trainings at the police department. The training is funded by a CDOT grant.  We completed a climate action evaluation with Kim Schlaepfer, Project Manager with the Climate Action Collaborative at the Walking Mountains Science Center. As a result, we introduced composting into the police department and improved upon our recycling program. The physical building, as a recently constructed building is pretty energy efficient with attendance lighting controls. The Town of Avon purchased a Ford Inceptor Hybrid to replace our previous Toyota Hybrid. We purchased the Ford as a potential replacement to the heavier, less gas and carbon efficient Chevy Tahoe’s. The Ford has performed very well in terms of road holding, ability to get through our worst snowstorm conditions, economical and carbon reduced idling and its space capacity for all of the emergency response equipment that we carry. We await three (3) additional Ford Hybrid Interceptor police vehicles replacing our patrol Chevy Tahoe’s.  Avon PD has nine (10) military veterans currently serving in its ranks. We have two (2) US Navy veterans, two (2) US Marine Corps veterans and five (6) US Army veterans. We thank the men and women who have served their country and continue to serve their community. We celebrated Veterans Day by remembering their service and their brothers and sisters who sacrificed everything for this amazing country. We also remembered the sacrifice of the families left behind.  Avon PD as part of the Law Enforcement Immigrant Alliance participated in the Catholic Charities and Law Enforcement Immigrant Alliance coat drive. Avon PD was a collection point.  Avon PD participated in the National Drug Take Back program. We were happy to have participated in this excellent national program, ensuring that prescription drugs don’t make it on the street and those same drugs don’t end up in our precious watershed.  Avon PD assisted the kids at Avon Elementary on the annual food drive.  Avon PD continues as a nationally accredited agency through the Commission on Accreditation for Law Enforcement Agencies, Inc. (CALEA®). Less than 1% of law enforcement agencies in the US are accredited through CALEA. We are the smallest agency in Colorado to be accredited through CALEA. In 2019 we completed year four of a four-year accreditation assessment cycle. Under Senior Administrative Services Officer Krista Jaramillo’s leadership, we were found to be 100% compliant to the Commission standards. The accreditation reflects all the hard work that the men and women at the Avon Police Department complete 24 hours a day, 365 days a year in service to better our community. We were to attend the national CALEA conference in Orlando in March 2020, but the conference was cancelled due to the COVID-19 pandemic. Instead, we attended via zoom and presented before a subcommittee of national commissioners. We had the opportunity to showcase our community outreach work to the Page 5 of 33 committee. The committee voted and approved our reaccreditation to the full commission. Colorado State Patrol Colonel Matt Packard, CALEA commissioner, formally presented the accreditation certificate at a Town Council meeting. In addition, we are accredited through the Colorado Association of Chiefs of Police (CACP).  Avon Police were honored to assist with the delivery of Thanksgiving Food packages on behalf of the Vail Valley Salvation Army.  Avon PD officers and detectives continue to work collaboratively with the Gore Range Narcotics Interdiction Team (GRANITE) drug task force comprising of Eagle County Sheriff’s Office and Vail PD task force detectives in apprehending and prosecuting drug dealers out of our community.  Sgt. Holmstrom continues as a member of the steering committee for the Treetop Forensic Interview and Child Advocacy center based in Breckenridge for the 5th Judicial District. He has worked on setting up the center through funding from a variety of governmental sources. The Town of Avon through the Avon Police Department council approved budget is contributing $5,000 to the program for child forensic interviews. In addition, Avon PD contributes $5,000 to the other child advocacy center, Riverbridge in Glenwood Springs. We utilize both centers for forensic interviews for children who have been victim of sexual assault, assault, neglect, or abuse.  The Avon Police Department, in partnership with Vail Resorts, and through an Eagle County Sheriff’s Inter Governmental Agreement, participated in another great season of the Law Enforcement Ski Program at Beaver Creek. This program allows officers to ski as police officers and assist the Sheriff with operations on the mountain during an off duty/secondary work agreement. The officers are compensated a ski-pass for participating in the program. The season continues to be very successful with lots of great community interactions and very positive feedback from ski resort employees.  Chief Greg Daly continues as the board president and actively participates with the Speak Up Reach Out Suicide Prevention Coalition. Chief Daly also participates in the Total Health Alliance, the Mental Health Advisory Committee to the Eagle County Board of County Commissioners and serves on the advisory board to Eagle Valley Behavioral Health.  We continue to increase our Facebook social media presence to a current milepost of over 3,400 followers of the Police Department Facebook page.  APD continues to participate in the “Paris” task force seeking countywide cross discipline collaborative strategies to further the safety and security of our newborn population.  Pastor Nate and Pastor Michael from Calvary Church continue as our departmental chaplains. They provide both religious and secular counselling to our officers dealing with the stress and trauma of the profession.  Avon PD with our other law enforcement partners have engaged Code 4 Counselling out of Aurora to provide mental health services both for resiliency and direct counselling services to our officers. They provide counselling services to officers throughout Eagle County. These services are currently provided though a state Department of Local Affairs funded grant.  Chief Daly also serves as the vice president of the county wide 800 MHz radio governance committee, managing the countywide radio system.  Avon Police Department with our partners from the Town of Avon Public Works and Transit, Eagle River Fire, Vail PD, Colorado State Patrol, Eagle County Paramedics and Vail Communications center conducted our annual West Wildridge Evacuation exercise in May 2020. We practiced the alternative evacuation routes west of the subdivision through Forest Service connector road 717.1B. Page 6 of 33  The Avon Police Department responded to a dramatic gas line fire at Eaglebend apartment complex. Avon Police officers bravely evacuated the surrounding buildings, set up incident command and worked a unified command structure with Eagle River Fire and Xcel energy to bring the fire and gas leak to a safe and successful conclusion resulting in no fire damage to structures or injured residents or responders.  The Avon Police Department provided traffic safety and traffic control support to two separate civil rights marches in Avon. We ensured that the participants enjoyed their constitutional rights to free speech, while protecting them and other motorists during their marches.  Avon PD officers continue to serve as part of the multi-agency Eagle County Special Operations Unit (SOU). The SOU team responded to Basalt to assist Basalt PD with an armed criminal barricade. The party surrendered shortly after the team arrived in the large, armored rescue vehicle. The team conducted a hostage rescue mission, involving an armed hostage taker, at the Mountain Stream complex in Eagle Vail in February. The team also assisted the U.S. Secret Service with protection of Vice President Pence and his family over the Christmas break and during convoy operations to and from the Eagle County Regional Airport. There was a minimal overtime cost for the Avon PD officers who participated and we received many thanks from citizens and guests who noted the team’s presence in Vail Village during the visit.  APD organized and co-hosted with the Eagle County Sheriff’s Office and Vail PD, our annual countywide active shooter response training and collectively trained nearly 65 officers, deputies, and Colorado State Troopers. The fire departments and EMS were not able to participate this year due to wildland fire concerns and ongoing COVID-19 concerns. The training was predominantly conducted outside at the Colorado National Guard High Altitude Army Training Site (HAATS) base at the Eagle County Regional Airport. This life saving training has become an anchor countywide training.  Avon PD had to cancel our four different National Night community parties this year because of the ongoing COVID-19 concerns.  Avon PD officers participated in a swift water rescue training delivered by technicians from the Eagle River Fire Protection District.  Officers from the Avon Police Department were honored to be recognized at the Vail/Eagle/Edwards Tri Rotary Club/Starting Hearts Public Safety Heroes Recognition banquet for both “Call of the Year” for the “Sebastian” multi-agency search in Eagle and they also received a unit citation for a Hostage Rescue event at the Mountain Stream condominium complex on February 29, 2020.  APD completed a sixth successful summer season with a part-time, non-sworn community response officer (CRO). CRO Lopez helped to educate our community and guests regarding Nottingham Park rules and etiquette for a more family friendly experience at the beach. The CRO also assisted with managing the parking plan on the Northside of West Beaver Creek Boulevard. Officer Recruit Lopez successfully graduated from the police academy and is currently in the field training program.  APD continues to partner in the Gore Range DUI Task Force. DUI enforcement is a top traffic safety priority for the men and women of the Avon Police Department.  In October, Chief Daly was honored to receive a “Leadership Excellence” award in the annual awards ceremony hosted by Colorado Mothers Against Drunk Driving (MADD) and Page 7 of 33 the Colorado Department of Transportation for his support of DUI enforcement and for his eleven DUI arrests in 2019.  Administrative Services Officer Krista Jaramillo continues as the president of the Rocky Mountain Accreditation Network (RMAN), our regional representative body for law enforcement CALEA accreditation.  Chief Daly and Sgt. Dammen assisted members of the Federal Bureau of Investigation (FBI) Hostage Rescue Team (HRT) - Blue Team with training In Routt County, Eagle County and Garfield County. Due to our relationship with FBI HRT, our Eagle County Special Operations Unit was able to conduct some helicopter training with the FBI’s Tactical Helicopter Unit while they were here supporting the tactical team.  Avon Police officers on the Eagle County Special Operations Unit was able to conduct some further helicopter training with the Colorado National Guard Counter Narcotics Unit.  Avon PD conducted a police bike school for Avon police officers.  Master Police Officer Peck has mentored five other Avon Police officers to take over the drone program from his very capable hands. They are nearly finished their Federal Aviation Administration (FAA) Part 107 Exemption training to be able to pilot the drone for emergency use and occasionally for some very nice Town of Avon scenic footage.  At the request of several Wildridge residents and as an outcome of the Wildridge Survey, Avon Police Officers have conducted directed traffic control operations in Wildridge, especially concentrating on Bear Trap Road, O’Neal Spur Park, Old Trail and Wildridge Road. The vast majority of Wildridge residents have been extremely appreciative of our presence and our effort to encourage that smaller minority of drivers to slow down and respect their neighbors.  All twenty (20) of current twenty-one (21) Avon Police Officers have completed a 40-hour Mental Health Crisis Intervention Training (CIT), a nationally recognized verbal de-escalation course, whilst also increasing officer’s knowledge and sensitivity to mental health crises. CIT training is a department priority for all new police officers.  Deputy Chief Cosper also serves as a board member on the 5th Judicial District’s V.A.L.E. (Victims Assistance and Law Enforcement) board, managing the 5th Judicial District’s dispersal of funds accrued by the court system in the support of victims.  We had two promotional testing processes for detective and patrol sergeant. Detective Alan Hernandez and Sergeant Balmore Herrera were our successful top candidates from a very competitive pool and succeeded through very stressful testing processes. Alan and Bal are immigrants from Mexico and Honduras and are both bilingual and bicultural. Community Policing/Engagement Projects and Involvement:  APD continues to participate in the countywide Law Enforcement Immigration Alliance, furthering relationships with our Latino community. We have been actively involved in this winter children’s coat drive.  APD officers conducted three internal eight hour concealed weapon and response to active shooter classes for thirty (30) Town of Avon staff members and some spouses.  Avon Police officers continue to deliver positive police interactions and education to the children at Avon Elementary. Sergeant Bal Herrera and Officer Colleen Gaspard, our School Page 8 of 33 Resource Officers, will continue to provide classes to students, parents and staff at the Avon Elementary School and continue to have a great working relationship with Principal, Dana Harrison. Sergeant Herrera and Officer Gaspard perform school resource duties within their patrol officer shifts as a collateral duty.  Happy Halloween! Avon Police Officers purchased and prepared nearly 400 individual Halloween bags for Avon children. Officer Andres Sandoval, Sgt. Tyler Churches, Mrs. Churches and Officer John Mackey stuffed the Halloween themed, Town of Avon recyclable bags in the week before Halloween. The purchases were aided by a community grant from Walmart. Officer Sandoval, Officer Mackey (who came in on their days off) and Community Response Officer Martinez transported the bags in a Town of Avon Public Works truck over to the Avon Elementary School. Principal Dana Harrison and her staff assisted with the Officers in distributing a Halloween bag to every kid in their respective classrooms. The officers then went over to the Eagle Bend apartment complex and met the kids coming off the school bus from Homestake Peak and distributed a further 40 bags. This was our way of thanking our Avon children, especially with our children dealing with so many COVID-19 related impacts. If they decided not to trick or treat, because of COVID-19 concerns, then they have a stuffed Halloween bag from the Avon Police Department, the Town of Avon and Walmart. The bags contained police stickers, pens, a small blanket, slime, crayons and an array of Halloween candy. Thank you to Officer Sandoval for leading this community policing initiative, to Officer Mackey, Sgt. Churches, Mrs. Churches and Community Response Officer Martinez for making it happen.  APD successfully hosted the 12th Annual Avon Police Citizen’s Academy. We had 9 participants. We hosted the 8th Annual Latino Avon Police Citizen’s Academy with 24 participants. Both academies were hosted in conjunction with other Eagle County Law Enforcement agencies. Students covered the following topics over the seven weeks of both academies: o State of the Police Department & Crime and traffic enforcement in Avon; Crime Scene Investigation (CSI), participants had a hands-on experience investigating a crime scene o Firearms Training Simulator (FATS); participants were given computer simulations of shoot or don’t shoot situations and were required to react as a police officer in compliance with the use of force policy and also driving police vehicles on a closed controlled course at the Beaver Creek Bear Lot o Drug Recognition and DUI enforcement; participants learned how to evaluate the sobriety of an individual and perform tests on an intoxicated person o S.W.A.T.: participants learned about the Eagle County Special Operations Unit. Self Defense: participants were taught basic self-defense techniques o Tour of the Eagle County Combined Courts/Justice Center and they met with District Judge Dunkelman and Eagle County Victims Advocate Deena Ezzell o Education lecture on Vail Public Safety Communication Center o An evening with firearms instructors at Old Town Hall using Simmunition weapons and graduation  Avon PD, other law enforcement and Eagle County Paramedics work in concert with the Hope Center to Eagle County on crisis calls throughout Eagle County. This program offers crisis response clinicians who co respond with Eagle County Community Paramedics and Avon PD officers to the scene and endeavor to stabilize a mental/behavioral health situation in the home rather than transporting to the emergency room and/or mental health hospital. The first-year Page 9 of 33 operations statistics demonstrated a reduction in mental health transports by the Eagle County Paramedic Services by 78%. These patients have been triaged in their own homes, rather than been transported to the emergency department and subsequent transport to a mental health facility. Avon PD as part of our council approved budget provides $19,500 in funding for this incredibly important mental health resource. In addition, Town Council approved a further $10,000 for 2020 summer counselling for children.  Chief Daly serves as the vice chair on the board of the county wide 800 MHz radio governance committee, managing the countywide radio system.  Chief Daly sits on the board of the Eagle County First Responders Fund. This is an organization dedicated to providing financial assistance to first responders when they are in a time of need.  During the October 27, 2020 Avon Town Council Meeting, Mayor Smith Hymes and Brenda Torres swore in Officer Shadrach Hines. Mrs. Merling (Wildridge) was presented with the “Volunteer Baker of the Year” award.  APD hosted our Annual Avon Liquor Licensee meeting on Nov 11. Town Manager Eric Heil, Town Attorney, Paul Wisor and Town Clerk Brenda Torres were available for questions. Twenty-two businesses responded to the invitation. Chief Daly and Agent Lisa Maestas, Colorado Department of Revenue Liquor and Tobacco Enforcement Division provided updated legal licensee related information.  Chief Daly was recently appointed by Governor Polis and Attorney General Phil Weiser to the board of the Colorado Police Officers and Standards Training regulatory body for policing in Colorado.  We celebrated the retirement of Master Police Office Peck after 30 years of service to the Avon Police Department and the citizens, residents, and guests of Avon.  After a comprehensive hiring process, we successfully hired new police officers Derek Lopez and Stephanie Villegas. Both Derek and Stephanie are bilingual Spanish speakers. Derek and Stephanie are currently in the field training program.  In November, Avon PD hosted the last night of 2020 Citizens Police Academy- a seven-week program educating our community on everything law enforcement related. We had nineteen (19) community members signed up. The academy was hosted by Avon PD in collaboration with the Eagle County Sheriff’s Office, Vail PD and Eagle PD. This was our 12th year delivering this academy. We hosted the 8th annual Latino Academy just before this academy as mentioned in the previous six-month update.  Avon PD as part of the Eagle County Special Operations SOU training conducted extensive trainings over the last year in the Old Town Hall Building. The facility provided an excellent venue to practice lifesaving hostage rescue techniques and tactics.  Avon Police Officers conducted our annual firearms qualifications in the indoor range at the Colorado Bureau of Investigation in Grand Junction.  Chief Daly participated in a strategic planning meeting with the other board members of the 800 MHZ governing board regarding our collective emergency radio infrastructure in Eagle County. Page 10 of 33  After three years of Chief Daly’s requests/solicitations to the Colorado Department of Transportation (CDOT), CDOT replaced the very old gates (that would not move after large snowfalls) with a barrier control gate at the Mile Marker (MM)167 east bound on ramp. The gate reflects the same infrastructure at the MM168 eastbound on ramp. This gate assists Avon PD and Town of Avon Public Works when we have to shut down eastbound Interstate 70, usually for substantial motor vehicle collisions on eastbound I-70 between MM169 to MM171.  In December, the Avon Police Department with assistance from Eagle River Fire Engine 7 Company, Eagle County Paramedics and community volunteers hosted a fun drive-thru “Shop with A Cop” experience for twenty (20) of our local kids. Incorporating COVID safety practices, APD arranged to have the selected families pull into the police department parking lot from Buck Creek Rd and exit, onto Swift Gulch. We had DJ Omar Loya spinning some beats and the crime fighting dog “Mc Gruff” running around making everyone laugh. Santa Claus, Avon Police Officers, ERF Firefighters, Eagle County Paramedics and other volunteers handed out the gifts to the children as they arrived. Avon Police Department with partners Vail Police Department celebrated 18 years of giving back to the local children with Shop with a Cop 2020. The Shop with a Cop program sponsors children with financial needs, those who are underprivileged, or those who might benefit from a positive interaction with police. In Avon, the children were chosen by Principal Harrison and her staff at the Avon Elementary School. The children picked the gifts online from Walmart and Avon PD picked up the gifts using Avon Public Works trucks. Officers, along with many volunteers from the community, wrapped all of the gifts. It took a great team effort to ensure the success of the program and to make it a fun memorable experience for the children. Special thanks to our Avon PD School Resource Officers Bal Herrera and Colleen Gaspard for planning and making this event happen. The Avon Police Department would like to thank the following for sponsoring the 2020 Shop with a Cop event: Town of Avon, U.S. Bank, Eagle River Presbyterian Church/ Officer Bradley Stamp, Avon Burger King, Avon Pazzo’s Pizza, Polar Star Properties, Avon Starbucks (East Hurd), Avon Domino’s Pizza, Avon Northside Kitchen, Gondola Pizza, Avon Bakery, VFW Post 10721, Holy Cross Energy Grant, Walmart- special thanks to Clarissa, Doris and the online shopping team, the Chavez Family, Town of Avon Public Works, Town of Avon Transit, Wishes Toy Store, Castaneda’s Mexican Market, Jeff Schiros, Jorge Membrano, Carlos Solis, DJ Omar, fundraising by the Vail Police Department and numerous anonymous donors that assisted in making this event an amazing night for all involved!  Master Police Officer Pecks Final Radio Call before Retirement- “Master Police Officer Peck, we accept your retirement resignation with bittersweet emotion. On one hand, we will miss your presence and your positive influence on your colleagues and on this department. You have served with honor and integrity and you have made this department and the Avon Community better with your service. On the other hand, we are happy that you will now enjoy a new and happy chapter in your life with your close-knit family. It will be a tough transition because being an Avon Police officer has been such a huge part of your life for over 30 years. However, you have served for more years than the average police service and you know that you have made many lives better by your role as a police officer, here in Avon. You will continue to be part of the Avon PD family. It has truly been an honor to have served with you. Rest Easy, we have the watch! From the men and women of the Avon Police Department.”  The Marvelous Mrs. Merling and her husband Joe struck again (in a good way!). The 2019 Avon PD Volunteer “Baker of the Year” provided some delicious home cooking to Avon Police Officers during in service training days. We don’t think that we deserve this appreciation any more than our fellow first responders or front-line personnel, but we sure do appreciate the Merling’s Page 11 of 33 community spirit and their affection of the men and women who serve 24 hours a day, 365 days a year. Thank you, Mrs., and Mr. Merling. Avon PD.  Officer Corey Baldwin and Det. Toby Baldwin facilitated a twelve (12) week Hero workout series. They developed a different weekly workout honoring heroes who are both alive and deceased. Multiple first responders participated in the workout program. STOLEN VEHICLES UPDATE From October 30, 2020, to date there were eleven (11) motor vehicles stolen in Avon. In addition, there were five (5) vehicles stolen out of Vail and a further fourteen (14) in Unincorporated Eagle County. The perpetrators unlocked running “puffer” vehicles but also broke into secured locked vehicles. The modus operandi appeared to steal a vehicle, move it to another location, rifle through the vehicle for any items of value, dump the vehicle and then steal another. Additionally, there were vehicles stolen in Eagle County that were dumped in Summit County and in Adams county. Ultimately all of the vehicles stolen in Avon have been located and recovered. Some of the vehicles have sustained substantial damage. The perpetrators appeared to be predominantly coming from Adams and Denver counties. The perpetrators were involved in multiple motor vehicle pursuits with law enforcement in Eagle County, Garfield County, Moffat County, Jefferson County and in the Adams county area. There were multiple firearms found during many of the arrests. A suspect was reported to have fired a weapon at a Colorado State Trooper in the Moffat County Area. Detectives and Officers from Avon PD, Vail PD, Eagle County Sheriff’s Office, and the Colorado State Patrol have been working collectively on these cases. The Avon Police Department conducted forensic investigations on multiple recovered stolen vehicles. In one case, with the assistance from an Eagle County Sheriff’s Deputy, we were able to obtain a fingerprint from a cell phone left in one of the stolen vehicles. We submitted the evidence to the Colorado Bureau of Investigation and got a fingerprint match back to a known offender out of Denver who has multiple similar charges against him in multiple jurisdictions. In addition, we were able to identify a female offender that was a co-conspirator in the execution of some of the crimes. She also has multiple similar offenses against her in a variety of jurisdictions. Avon PD and Vail PD Detectives have been working on comprehensive arrest warrants for both offenders, invoking the Colorado Organized Crime Act (COCA). COCA cases have a sentencing enhancer. Both offenders have been arrested on our collective warrants. Two additional perpetrators were located in Adams County and were charged. 2020 SENATE BILL 217 On June 19, 2020, Governor Jared Polis signed Senate Bill 2020-217 into law. SB 20-217 is known as the Enhance Law Enforcement Integrity bill. The bill was introduced and passed within a very fast two-week period. The bill emanated partly as a response to the tragic murder of Floyd George at the hands of Minneapolis Police Officers. There was a lot of emotion in the passing of the bill and it generally would be agreed that because of its speed of process, it contains some ambiguous and undefined language that needs to be corrected. The Northwest Colorado Council of Governments completed a research document on behalf of its membership to provide a regional perspective to local policy decisions being made in response to SB20- Page 12 of 33 217. Some of the discussion referenced in this section is derived from the completed report, “Regional Impacts to Law Enforcement, SB20-217 Use of Force Bill”. The document was also supported by the Colorado Department of Local Affairs and the Town of Avon’s insurance carrier, Colorado Intergovernmental Risk Sharing Agency (CIRSA). The foreword was completed by Jon Stavney, Executive Director for NWCCOG. The research was completed by Heather Aracelli Coogan, retired Chief of Police for Littleton, CO. The bill covered a several important issues involving law enforcement including the revocation requirements of a peace officers’ certification, use of force and deadly force, prohibited use of choke holds to subdue or arrest, demographic data collection, removing qualified immunity, peace officer training, duty to report and to intervene, body worn cameras and prohibited law enforcement actions in response to protests. However, for the most part the bill enacts some forward-thinking concepts when it comes to policing in Colorado and was a first in the United States. I am glad to report that many aspects of the bill were already incorporated in the Avon Police Department’s policies, procedures, and training. In fact, we have had to make small subtle changes to comply with some aspects of the new law. Our CALEA accreditation had ensured that we had many policies and practices already in place. There were subtle changes to our use of force policies. The intent of SB217, is to ensure that law enforcement officers utilize verbal de-escalation and less lethal levels of force before using lethal use of force. Our Use of Force requirements already required officers to formally report whenever a firearm was pointed at or used or when a less lethal shotgun or taser was pointed at or used against a person. Chokeholds are banned for restraint and arrest control situations but can only be used in a lethal force situation when saving an officer’s life or member of the public. SB217 requires accountability through the use of bodycamera by July 1st, 2023. The Avon Police department has had a bodycamera program since 2015. In fact, we were the first law enforcement agency in Eagle County to issue body cameras to all officers. Bodycameras have been an excellent tool for police accountability, for evidence capture in the prosecution of criminal cases, for internal training and at times for internal professional standards investigations. Unlike Vail PD, Eagle County Sheriff’s Office, or the Colorado State Patrol we did not have in car cameras. However, the Avon Town Council had the vision to approve in-car camera systems to further increase accountability and transparency in our dealings with our community. The in-car cameras will be able to capture the initial traffic violation and any and all actions by offenders as they sit in the rear detainee compartment of our police vehicles during transports to the Avon Police Department or to the Eagle County Detentions Facility. The training staff at the Avon Police Department take pride in our ongoing in-service training. We train on a quarterly basis in every aspect of community policing. We have an annual matrix to ensure that we cover all Police Officer and Standards Training (POST), CALEA and the Colorado Intergovernmental Risk Sharing Agency (CIRSA) required trainings to include; de-escalation training, community policing/community partnership, anti-bias, proper holds and restraints, driving, firearms, arrest control/defensive tactics, less lethal weapons, CALEA update, legal/ search and seizure updates, all hazards/ incident command, CPR/first aid, ethics, crisis intervention de-escalation updates, immediate Page 13 of 33 action response, Truckers against Trafficking, sexual/workplace harassment and response to active threat/shooter events. This is not an all-inclusive list. Data collection reporting requirements; Beginning July 1, 2023, the act requires the Division of Criminal Justice (DCJ) in the Colorado Department of Public Safety to create an annual report of the information that is reported to the division, aggregated, and broken down by state or local agency that employs peace officers, along with the underlying data. Each local agency and the Colorado state patrol that employs peace officers shall report to the division: • All use of force by its peace officers that results in death or serious bodily injury; • All instances when a peace officer resigned while under investigation for violating department policy; • All data relating to contacts conducted by its peace officers; and • All data related to the use of an unannounced entry by a peace officer. The Avon Police Department has been collecting data for all of our traffic stops for years as part of our CALEA accreditation. We complete an annual report tracking the ethnicity of all of our traffic stops. The purpose of the report to identify any trends or patterns that would suggest profiling or bias based policing. I am very happy to report that the Avon Police department does not make traffic stops or pedestrian contacts based on race, gender, sexual identification, religious belief or ethnicity. SB217 when passed required law enforcement agencies to immediately begin to capture the ethnicity information on self-initiated traffic stops and pedestrian contacts with a legal objective to report the ethnicity of all self-initiated traffic stops and pedestrian contacts to the Colorado State Department of Criminal Justice. The bill surprised many agencies that had not been accumulating this type of information in the past. Additionally, the bill did not specify how the information should be collected and ultimately how and in what format, that information will be submitted to the DCJ starting in July 2023. Community policing- as documented throughout this report, community policing is the backbone of what Avon Police Officers do twenty-four (24) hours a day. We conduct comprehensive community outreach activities throughout the year. Crisis Intervention Training (CIT)- a priority of the Avon Police Department. 100% of all currently serving police officers have completed the forty (40) hour crisis intervention training. Dealing with mental health- APD has made it a priority to identify mental health crises as medical events and not criminal events. APD was the first agency in Eagle County to say “no” to transporting community members who were in mental health crisis, in handcuffs in police cars, as was the previous protocol for mental health transports. We worked collaboratively with our law enforcement, EMS, hospital, and behavioral health partners and have evolved much better procedures in dealing with mental health crises. The Avon Police Department was one of the partners in bringing the Eagle Valley Hope Center into operation into Eagle County. The TOA/PD contributes $19,500 towards their annual operation. We practice a co-responder model of involving a Hope Center clinician and an Eagle County Community Paramedic at the earliest juncture on a mental health crisis call. Police Officers are usually the first to be dispatched to an Page 14 of 33 event and respond to ensure a person is not actively trying to hurt/ kill themselves. We then call in the clinician and community paramedic as soon as it is safe to do so and conduct a “warm hand off” to their staff and then we extricate ourselves from the scene unless needed. This new paradigm shift directly ties in with Avon PD’s values and focuses on treating a person in mental crisis as a medical patient and not as a criminal. In 2020, Avon police officers responded to;  75 Welfare Checks  4 Mental Health Holds  53 Suicidal calls  62 Calls for Service directly related to Hope Center  13 Calls for Service directly related to Safe2Tell (Note: there was some cross over between the Hope Center, Safe to Tell, suicidal calls and welfare checks) Hiring practices-A lot of the terrible criminal events involving police officers throughout the United States can be associated with the hiring practices and the culture of those departments. I am glad to report that the Avon Police Department has very high hiring standards. We are a small department but we find budget to send a sergeant out of state to interview former employers, friends, family, and next-door neighbors of prospective employees. We also complete a very comprehensive background integrity interview, a polygraph, a psychological evaluation by a trained police psychologist, a physical fitness test, a physical, an oral broad interview and finally a Chief’s interview. This process is very robust to ensure we hire individuals that are going to fit into and thrive in the values and culture of the Avon Police Department and that of the Town of Avon community. Virtual simulator- Avon Police Officers have trained on use of force firearms simulators in the past. We have trained on the Colorado Bureau of Investigations VITRA 360% simulator in Grand Junction. We have also borrowed a simulator from both Breckenridge PD and Snowmass Village PD. Town Manager Eric Heil had an opportunity to train on a borrowed simulator in 2020 and recognized the unique training value of a simulator. The Avon Town Council with vision, approved the joint purchase of a firearms simulator with the Eagle County Sheriff’s Office to be permanently mounted in the briefing room at the police department. In respect to SB217, the simulator creates stress inoculation scenarios for officers so that they make better use of force decisions. The simulator has verbal de-escalation, less lethal force, and lethal force scenarios to help officers more accurately analyze a use of force encounter and in turn it aids the officer in determining the right use of force option for the circumstances presented to them. The simulator will be used by Avon Police Officers and Eagle County Sheriff’s Deputies on a 24-hour basis. The simulator will be offered to our partner law enforcement agencies in Eagle County. Removal of qualified immunity both for officers and for municipalities. The act allows a person who has a constitutional right secured by the bill of rights of the Colorado constitution that is infringed upon by a peace officer, to bring a civil action for that violation. A plaintiff who prevails in the lawsuit is entitled to reasonable attorney fees, and a defendant in an individual suit is entitled to reasonable attorney fees for defending any frivolous claims. Qualified immunity is no longer a defense to a State civil action. There are two sides to this argument. There is the argument that says that officers cannot be protected by a shield of qualified immunity, and if an officer has broken the law, he or she will be personally liable for costs/damages up to $25,000. The act requires a political subdivision of the state to indemnify its employees for such a claim; except when the peace officer's employer determines the officer did not act Page 15 of 33 upon a good faith and there is a reasonable belief that the action was lawful, then the peace officer is personally liable for five (5) percent of the judgment or $25,000, whichever is less. Unless the judgment is uncollectible from the officer, then the officer's employer satisfies the whole judgment. A public entity does not have to indemnify a peace officer if the peace officer was convicted of a criminal violation for the conduct from which the claim arises. On the other hand, this legislation potentially opens officers up for frivolous lawsuits and could ultimately decertify that officer from working as a police officer, even if the officer did not knowingly do wrong. The other effect of this bill is to remove limits from what a town or city can pay by way of damages and in turn could lead to increased insurance costs. The Colorado State Patrol (CSP) and the Colorado Bureau of Investigation (CBI) were previously excluded from this legislation because the fiscal note was not budgeted for. However, CSP and CBI are to be included in an SB217 version 2, currently being legislated in the State Capitol. The act requires a peace officer to intervene when another officer is using unlawful physical force and requires the intervening officer to file a report regarding the incident. If a peace officer fails to intervene when required, the Police Officers and Standards Training Board (P.O.S.T.) shall decertify the officer. If any peace officer is convicted of or pleads guilty or nolo contendere to a crime involving the unlawful use or threatened use of physical force or the failure to intervene in another officer's use of unlawful force or is found civilly liable in either case, the P.O.S.T. board shall permanently revoke the peace officer's certification. The P.O.S.T. board shall not, under any circumstances, reinstate the peace officer's certification or grant new certification to the peace officer unless exonerated by a court. (https://leg.colorado.gov/bills/sb20-217) Page 16 of 33 Avon Police Department Org Chart 2021 Page 17 of 33 AVON PD 2020 ANNUAL OFFICER USE OF FORCE CHART Avon Police Officers attend to thousands of calls for service each year, in fact 26,741 in 2020. Avon Police Officers interact with thousands of persons on an annual basis. Avon PD officers respect all persons and protect all person’s rights as part of their day-to-day activities. Given the massive number of interactions, I am glad to report that Avon PD officers rarely have to use force, while detaining or arresting offenders. Avon Officers are competently trained in verbal de-escalation techniques. In 2020, Avon Officers made 273 arrests, either by the issuance of a summons and subsequently releasing that person or physically placing that person in custody either to transport that person to the Avon Police Department for processing or for transport to the Eagle County Detentions Facility for booking. With those statistics in mind, in 2020, Avon Police Officers used some level of force on thirteen (13) occasions either by using limited physical force, by pointing their taser or firearm at a subject based on information provided to the officer via our dispatch center, previous contact interaction with an offender or on view sight of a weapon. There was one neck complaint by a mental health hold while officers were assisting paramedics to transport the patient for a mental health evaluation. There was one reported officer injury with a kick to the knee but there were no further issues reported. Limited soft hands were used in six (6) incidents and weapons were directed in seven (7) incidents, 6 incidents where firearms were directed and one where a taser was directed. Number of UOFIncident Report Call TypeSubjects ActionsETOH/Drug/Mental ImpairmentType of Force Used Time of Day# Officer Using Force/# UOF Reports Day of WeekInjury to SuspectInjury to Officer(s)# of Arrests Related to UOFSuspect Race (W, H, B, A, O)Suspect/Subject gender1 2020-000006 Disturbance in Progress Passive Resistance/Defensive Resistance/Psychological Intimidation Drug/Mental Impairment Soft Hands 1244 2 Thursday Complaint of Neck Pain None 0 W M 2 2020-000105 Disturbance in Progress Defensive Resistance ETOH Soft Hands 2014 2 Saturday None None 1 H F 3 2020-000169 Domestic Disturbance Passive Resistance/Defensive Resistance/Active Aggression Drug/ETOH Soft Hands 0236 2 Wednesday None Kicked in Left knee 1 H F 4 2020-000215 Stabbing Suspect reported or suspected to be armed with a dangerous instrument or deadly weapon ETOH Weapons Directed 2331 1 Saturday None None 1 H M 5 2020-000224 Person with a Gun Suspect reported or suspected to be armed with a dangerous instrument or deadly weapon ETOH Weapons Directed 1730 1 Sunday None None 1 B M 6 2020-000327 Person with a Gun Suspect reported or suspected to be armed with a dangerous instrument or deadly weapon ETOH Weapons Directed 1224 2 Tuesday None Biohazard Exposure 1 W F 7 2020-000340 Traffic Complaint Suspect reported or suspected to be armed with a dangerous instrument or deadly weapon None Weapons Directed 1556 2 Friday None None 0 H M 8 2020-000419 Person with a Gun Suspect reported or suspected to be armed with a dangerous instrument or deadly weapon ETOH Weapons Directed 0246 1 Sunday None None 1 H M 9 2020-000437 Disturbance in Progress Aggravated active aggression None Weapons Directed 2300 1 Friday None None 0 W M 10 2020-000439 Restraining Order Violation Passive Resistance/Defensive Resistance ETOH Soft Hands 1758 1 Sunday None None 1 H F 11 2020-000597 Disturbance in Progress Defensive Resistance ETOH Soft Hands 1800 2 Thursday None None 1 W F 12 2020-000599 Suspicious Vehicle Building Search None Weapons Directed 620 1 Saturday None None 1 H M 13 2020-000615 Intoxicated Adult Defensive Resistance/Subject attempting to injure self or commit suicide Drug impairment/Me ntal Health Soft Hands/RIPP System 1738 2 Monday None None 0 H M Page 18 of 33 PROFESSIONAL STANDARDS/ INTERNAL AFFAIRS INVESTIGATIONS As previously mentioned, Avon Police Officers conducted 1,770 traffic stops and had thousands of citizen/resident/guest interactions in 2020. There were three (3) professional standards reviews/complaints in 2020. The three (3) complaints were internally generated based on patrol vehicle collisions. One collision involved an officer on an e-bike striking a vehicle in an oncoming lane causing minor damage to that vehicle. The second collision was a reversing accident in the car wash because the exit bay door was not opening. The third incident was a rear end collision where our officer was hit from behind on Eastbound Interstate 70. The first two investigations found that the officers were at fault and were counselled and if required they completed CIRSA defensive driving training. I am very happy to report that we did not receive any external citizen/resident/guest complaints in 2020. Avon Police Officers are not perfect but we endeavor to maintain high professional standards and treat all with dignity and respect their race, gender, sexual identification, religious beliefs, or ethnicity. 2020 ANNUAL REPORTING OF CRIME AND TRAFFIC STATISTICS I would again like to preface that the following statistical information should in no way minimize the hurt and trauma that every victim experiences as the victim of a person or property crime. An increase or decrease in a particular crime category should not take away from our commitment to seek justice for every victim in every instance. We continue to believe that our success in keeping crime rates low in Avon is supported by high visibility patrol, community engagement and trust building with our residents and guests. The Avon Police Department is committed to “serving to better our community” through reducing crime and improving traffic/community safety through community partnerships, education, and by enforcement of laws. This document contains year-to-year historical crime reporting and traffic data, which highlights highs and lows in activity. There are many variables that contribute to crime and traffic crashes: such as weather, staffing, training, philosophy, prioritization, special events, population, economy, etc. Secondly, this memorandum contains 2020 crime/traffic data as compared to 2019 and 2018. Lastly, additional programs and community projects that the Avon Police Department is currently working on are documented. YEAR-TO-YEAR CRIME/TRAFFIC REPORTING The Avon Police Department captures a wide variety of data and statistics for a variety of reasons. Crime data is sent to the Colorado Bureau of Investigation (CBI) and in turn to the Federal Bureau of Investigation (FBI) for documentation in the National Incident-Based Reporting System (NIBRS). NIBRS collects data on forty-six (46) Group A and ten (10) Group B offenses. Professional Standards Inquiry/ Internal Affairs Case Log Page 19 of 33 The Avon Police Department compares statistical data against the Annual Benchmark Cities Survey, which is a nearly two decade long comparative police performance analytics survey. In 1997, a group of police chiefs from around the country established the benchmark cities survey, which created measurement tools to help ensure police departments provide the best service possible within their respective communities. Overland Park Police Department (KS) has taken the lead in compiling the survey results. The survey, updated annually, provides a range of information about each department. With that information, the participating agencies can set better goals and objectives, and compare their performance in the various areas. Thirty (30) law enforcement agencies from throughout the country participate in this survey including Boulder, Fort Collins, and Lakewood in Colorado. The latest available annual data for this national survey is 2019 (https://www.opkansas.org/city-services/police-fire-safety/police-special- services/benchmark-cities-survey/) Avon Police Department 2010-2020 Activity Statistics 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 Total Crimes Reported 786 908 613 667 912 937 740 798 827 668 530 Group A Crimes 368 440 372 313 388 381 320 313 359 201 285 Group B Crimes 418 468 241 354 524 556 420 487 468 426 245 Clearance Rate .43 .48 .59 .44 .40 .50 .49 .43 .51 .48 .46 Total Reports 897 1111 1015 925 912 972 840 901 855 703 662 Calls for Service 14382 16905 16213 13829 16909 16302 16039 22890 20632 20213 26741 Traffic Accidents 170 161 142 174 148 148 159 159 154 155 139 Traffic Accidents ETOH/Drug 6 8 7 10 12 8 9 7 7 12 5 Total Arrests 334 384 450 435 501 509 379 392 392 345 273 Adult Arrests 291 363 419 413 478 485 358 365 354 318 251 Juvenile Arrests 43 21 31 21 23 24 21 27 38 27 22 Felony Arrests 39 71 88 54 50 66 49 53 71 45 31 Sexual Offenses 6 12 12 4 10 9 7 11 14 7 10 Robbery 1 0 0 0 2 1 0 2 0 0 3 Burglary 28 24 9 11 12 10 13 7 13 1 3 Larceny 149 160 87 129 159 154 133 109 113 83 73 Motor Vehicle Theft 9 4 1 4 6 6 9 7 5 10 10 Assault 48 41 37 36 45 53 47 43 67 47 59 Arson 0 2 1 1 3 1 0 0 0 0 1 Forgery/Counterfeiting 9 5 5 4 9 6 8 3 5 4 2 Fraud 20 17 28 32 27 27 21 27 20 17 17 Vandalism 54 64 51 72 69 76 64 63 65 36 70 Weapon Offense 1 3 4 0 6 4 2 4 6 4 4 Narcotics 41 101 135 15 36 29 15 34 41 26 21 DUI 78 118 89 105 150 156 100 133 108 97 69 Liquor Laws 31 25 23 23 16 20 13 14 15 24 13 Disorderly Conduct 26 30 33 24 19 27 14 20 27 21 19 Domestic Violence 40 41 38 55 37 30 39 33 43 41 31 Traffic Stops 2860 4691 4299 3283 4302 3470 2328 2281 1985 1949 1770 Total Traffic Warnings 1811 3101 2523 2371 3275 2599 1706 1620 1561 1508 1266 Written Traffic Warnings 1170 1463 1378 1423 1299 Traffic Summons Speeding Avon Wildridge WBC BL EBC BL Swift I 70 782 393 63 15 86 31 7 147 1192 379 31 2 46 7 6 265 961 275 16 3 36 6 13 191 701 118 5 2 9 6 2 85 820 169 14 4 22 5 2 103 615 182 7 13 24 14 2 91 545 244 14 7 11 17 8 169 508 283 15 6 11 15 4 223 309 112 5 1 29 8 2 41 302 118 0 3 14 10 8 67 308 117 1 3 27 2 1 66 Page 20 of 33 Metcalf Nottingham 22 19 3 17 1 7 3 4 7 7 18 7 2 2 1 5 1 17 1 11 2 14 Safety Belt 86 410 407 365 316 143 115 46 48 35 52 Child Safety Seats 8 3 7 1 5 0 0 2 3 2 5 Criminal Summons Odor Complaints 0 0 0 0 0 0 0 0 0 0 0 Animal Control Warnings 33 19 12 10 28 58 151 106 119 152 52 Animal Control Summonses 9 6 7 11 3 6 13 3 7 12 4 Wildlife Protection Ordinance (CFS) 23 11 40 3 29 5 37 6 9 19 15 Wildlife Protection Ordinance Summonses 0 0 2 0 1 5 0 0 0 0 0 Bear Calls 38 35 131 18 60 26 64 37 49 26 102 Smoking Violation Summonses 0 0 0 0 0 0 0 0 0 0 0 Smoking Violation Warnings 0 0 0 0 0 0 0 0 0 0 0 Group A crimes include: Homicide, Kidnapping/Abduction, Robbery, Assault, Arson, Extortion, Burglary, Larceny/Theft, Motor Vehicle Theft, Counterfeiting, Fraud, Embezzlement, Stolen Property, Vandalism, Drug/Narcotic Offenses, Sex Offenses, Pornography/Obscene, Gambling Offense, Prostitution, Bribery and Weapon Violations. Group B crimes include: Bad Checks, Curfew/Loitering, Disorderly Conduct, DUI, Family Offenses, Liquor Law Violations, Peeping Tom, Runaway and Trespass. CRIME/TRAFFIC STATISTICS AND CALLS FOR SERVICE During 2020, the Vail Public Safety Communication Center dispatched 4,274 calls for service (CFS) to the Avon Police Department (4,996 in 2018 & 4,850 in 2019). Avon officers generated 21,964 self-initiated (SI) calls for service, which include traffic stops, community policing activities, building checks, foot patrols and extra patrols as requested by community members. Avon Police Officers conducted 11,037 directed patrols leading to decreased criminal activity. An additional 223 calls for service were generated in Avon and were primarily dealt with by the dispatch center. In 2019, Avon officers generated 15,146 self-initiated calls for service and 15,325 SI CFS in 2018 (these figures include a small number of calls that were handled directly by the dispatch center) The 2019 Benchmark Cities Survey shows that the average number of annual calls for service per 1,000 citizens is 451.8 (only includes calls where someone calls dispatch to request police response) Similar dispatch generated calls for service in Avon have been significantly higher over the last three years at 775 in 2018, 752 in 2019 and 663 in 2020. This indicates that the Avon Police Department is busier than the average law enforcement agency in citizen 911 and other response requests, which may be an indicator of public trust. Community members call when they need assistance, whether emergent or not. In 2020 Avon Police Officers conducted an unprecedented 11,037 directed patrols and 780 traffic patrol/radar patrols. As compared to 2019, where Avon PD officers conducted 1,872 directed patrols and 950 traffic patrol/radar patrols to reduce crime and increase visibility throughout the Town of Avon, either at request by a community member or business or through crime deterrence strategies. These directed patrols included foot patrol in Nottingham Park, traffic enforcement in Wildridge, trail heads in Wildridge and at the end of Nottingham and parking monitoring in the core. Avon Officers completed 384 hours of foot patrol. Avon Officers conducted 442 hours of bike patrol. Page 21 of 33 Avon PD Calls for Service (CFS) are broken out into the majorities of categories used by the Vail Public Safety Communications Center (Vail Dispatch). Nature Code 2019 2020 Unknown 911 225 119 Alarm 205 233 Animal Complaint 178 168 Armed Party with Weapon 3 4 Arrest Generic 11 5 Assault 27 42 Assist 1279 1113 Attempt to Locate 127 56 Bar Check 239 160 Nature Code 2019 2020 Bear Call 26 104 Bicycle Accident 1 0 Bike Patrol 248 394 Bomb Threat 2 0 Shift Briefing 95 215 Burglary 7 5 Business Check 833 735 Chain Law 8 5 Civil Standby/Matters 284 216 Contact 644 358 Construction Incident 1 0 Community Oriented Policing 280 263 Damage 39 31 Death 1 2 Directed Patrol 3289 11,037 Disturbance 131 133 Intoxicated Party 53 43 Domestic Disturbance 71 77 Drugs 16 11 Drug Task Force 2 2 Evidence Processing 74 58 Fight 14 29 Fingerprints 3 2 Fire 73 63 Fireworks 1 0 Found Property 95 73 Follow Up 1430 1311 Foot Patrol 1254 1024 Found 3 1 Fraud 43 39 Person with a Gun 4 5 CBI Firearms Check 1 0 Harassment 85 100 ID Check Dispute 5 3 Interview 41 21 Investigations 0 0 Juvenile Problem 41 36 Abduction/Kidnapping 3 0 Page 22 of 33 Liquor Violation 0 1 School Lock Down 1 2 Lost Property 134 107 Medical 114 106 Mental Health Hold 11 4 Missing Overdue Party 31 33 Motor Vehicle Accident 395 347 Negative Contact with Officer 7 14 Noise Complaint 132 190 Open Door/Windows 26 17 Ordinance Violation 29 53 Parking Problem 735 865 Patrol/Radar 1131 780 Prisoner Processing 28 15 Prowler 1 5 Clear/List Person or Vehicle 18 13 Clear Person or Vehicle 3 3 Recovered Stolen Property/Vehicle 2 1 REDDI (Report Every Drunk Driver Immediately) Report 110 71 Relay 205 165 Restraining Order Violation 31 25 Road Debris 88 74 Robbery 1 0 Reports 1438 184 Runaway 1 4 Security Checks 112 100 Registered Sex Offender 44 22 Shooting or Shots Fired 2 8 Mud/Rock/Snow Slide 1 0 Special Assignment/Duty/Patrol 55 74 Suicidal Party 68 53 Suspicious Occurrence 573 578 Traffic Stop 1949 1770 Theft 176 163 Towed Vehicle 25 30 Training 31 120 Traffic Complaint 233 212 Travelers Aid 12 10 Traffic Control 31 26 Trespassing 67 58 Unknown Nature 38 40 Criminal Injury to Property 32 50 Abandoned Vehicle 21 31 VIN Check 23 26 Walk Through 3 3 Welfare Check 84 75 (970) 748-4049 gdaly@avon.org AVON POLICE DEPARTMENT RESPONSE TIMES The Avon Police Department, as part of our annual performance metrics comparison, measures response times to calls for service. These times are documented and calculated through the Vail Public Safety Communications Center. Calls for service are broken into four priorities, which are: Priority 1 & 2: Life or property in immediate threat or just occurred. Units respond immediately, lights and sirens. Priority 3: Normal everyday calls for service, needs to be handled in a timely manner. Priority 4: Calls can be held for a period of time. In practice, Priority 1 and 2 calls are considered life safety emergent calls and are treated as the same category. The 2019 Annual Benchmark Cities Survey indicates that the average response time for Priority 1 responses is 5:40 minutes for the thirty (30) agencies surveyed. The survey does not break down Priority 1 or 2 as does the Vail Public Safety Communications Center; however, the Avon Police Department’s 2020 response time for emergency calls (Priority 1 and 2) is 4:32, less than the 5:40 minute survey average. 2018 Priority 1 - 00:00:00 Priority 2 - 00:03:07 Priority 3 - 00:14:16 Priority 4 - 00:08:46 2019 Priority 1 - 00:00:00 Priority 2 - 00:03:50 Priority 3 - 00:15:28 Priority 4 - 00:11:51 775 452 752 663 Avon Calls for Services Benchmark Cities 2019 Dispatched Calls for Service Per 1000 Citizens Annual Comparison (Calls to dispatch, not officer initiated) 2018 2019 2020 Page 24 of 33 2020 Priority 1 - 00:03:52 Priority 2 - 00:04:32 Priority 3 - 00:15:29 Priority 4 - 00:12:16 During 2020, total crimes reported were lower as compared to 2019 and 2018. Prioroty 1 & 2 Priority 3 Priority 4 2018 3:07 14:16 8:46 2019 3:50 15:28 11:51 2020 4:32 15:29 12:16 0:00 2:24 4:48 7:12 9:36 12:00 14:24 16:48 Axis TitleAvon Police Response Times Annual Comparison 827 855 668 703 530 662 Total Crimes Reported Total Incident Reports Crime Reporting Annual Comparison 2018 2019 2020 Page 25 of 33 ALCOHOL/DRUG RELATED CRIMES The influence of alcohol and/or drugs continue to be significant contributory factors in criminal incidents, especially in relation to crimes against person’s incidents and driving under the influence cases. Officers made 69 DUI arrests in 2020. DUI arrests were down as compared to 2019 for a number of reasons; impact from COVID-19 pandemic- less people out during lockdown periods, bars closed earlier due to public health order restrictions, bars were not as busy (same reason) and the State DUI enforcement grants were temporarily on hold at the beginning of the pandemic to reduce police officer’s potential exposures. DUI related crashes decreased in 2020 to five (5) as compared with twelve (12) in 2019 and seven (7) in 2018. Avon PD narcotic arrests decreased to twenty-one (21) from twenty-six (26) in 2019, and forty-one (41) in 2018. ARRESTS These arrest statistics include full custodial arrests, where the subject is booked into the Eagle County Detention Facility (ECDF), arrests that are processed at the Avon Police Departments booking area, and field summons and release arrests for more minor offenses. Due to the prevailing COVID-19 restrictions, and orders from the Chief Judge of the 5th Judicial District regarding bringing offenders to the Detentions Facility, Avon Officers attempted to summons and release or process at the Avon Police Department booking facility on the more minor offenses whenever possible to ensure the officers were within the Town boundaries as much as possible. In 2020, there was a reduction in arrests to 273 as compared to 345 in 2019 and 392 in 2018. In line with the same decrease, felony arrests decreased from 45 in 2019 to 31 in 2019. Avon Police Officers operated under extraordinary COVID-19 circumstances whereby certain warrants were not enforced by the Chief Judge’s order to alleviate COVID-19 exposure concerns at the Eagle County Detention Center and at other county jails around the 5th Judicial District. 41 6 108 5 6 7 26 7 97 4 6 1221 8 69 2 6 5 Narcotics Marijuana DUI DUID DUI Marijuana DUI Crashes Alcohol/Drugs Annual Comparison 2018 2019 2020 Page 26 of 33 PROPERTY CRIMES: Property crimes remain at historic lows. In 2020, theft/larceny cases decreased from 83 to 73. Burglary significantly saw a slight increase from one (1) to three (3). Vandalism incidents increased significantly from 36 to 70. Avon Police Officers and Detectives worked diligently on a vandalism/ graffiti lead, generating multiple social media search warrants and were in turn able to arrest and charge a serial graffiti offender in June 2020. The offender was charged with damage to property on over thirty-four (34) graffiti cases throughout Eagle County, fourteen (14) that were perpetrated in Avon. 392 71 345 45 273 31 Total Arrests Total Felony Arrests Arrests Annual Comparison 2018 2019 2020 13 5 113 20 65 1 4 83 17 36 3 2 73 17 70 Burglary Forgery Theft/Larceny Fraud Vandalism Property Crimes Annual Comparison 2018 2019 2020 Page 27 of 33 In comparison to the 2019 Benchmark Cities Survey, the average annual number of burglaries per 1,000 residents was 3. Avon’s rate was 0.46. In comparison to the 2019 Benchmark Cities Survey, the average annual number of auto thefts per 1,000 residents was 2.2. Avon has seen an average of 1.29 over the last 3 (three) years. We did see increased auto theft activity in 2020. We had multiple vehicles stolen in Avon and throughout Eagle County. We have identified multiple perpetrators out of the Metro Area, particularly in Adams County. Two perpetrators have been charged and we are advancing a Colorado Organized Crime Case against two additional identified perpetrators (who have extensive criminal histories for similar crimes) 2.02 0.15 3 0.46 Avon Burglary Rates Benchmark Cities 2019 Burglary Rates per 1,000 Citizens Annual Comparison 2018 2019 2020 Page 28 of 33 CRIMES AGAINST PERSONS Avon had zero robberies in 2018 and 2019 with two robberies in 2020. Reported sex offenses have risen from 7 to 10. Assaults decreased from 47 to 59. Domestic violence incidents decreased from 41 to 31, but we did see a higher level of violence within these crimes throughout the pandemic. In comparison to the 2019 Benchmark Cities Survey, the average annual number of reported domestic violence incidents per 1,000 residents is 5.0. Avon’s index for 2020 was 4.8. In comparison to the 2019 Benchmark Cities Survey, the average annual number of reported rape offenses per 1000 is .49 and sexual offenses (excluding rape) per 1,000 residents is .5. Avon has seen a rate significantly higher than this average for each of the last three years at 2.17 in 2018, 1.08 in 2019 and 1.55 in 2020. 0.77 2.2 1.551.55 Avon Citation Average (including DUI) Benchmark Cities 2019 Avon Auto Theft Rate per 1,000 Citizens Annual Comparison 2018 2019 2020 Page 29 of 33 14 67 43 0 7 47 41 0 10 59 31 3 Sex Offenses Assaults Domestic Violence Robbery Crimes Against Persons Annual Comparison 2018 2019 2020 6.67 5 6.36 4.81 Avon DV Rates Benchmark Cities 2019 Domestic Violence Rates per 1,000 Citizens Annual Comparison 2018 2019 2020 Page 30 of 33 The Avon Police Department tracks clearance rates for the most serious crimes. Some crimes have high solvability rates such as narcotic arrests and assaults, while other crimes like some sexual assaults, burglaries, and theft have lesser solvability rates. The Avon Police Department has an average clearance rate that is higher than the Benchmark Cities Survey Part I average. 2.17 1.08 1.55 0.49 0.5 Avon Sexual Assault Rates Benchmark Cities 2019 Rape per 1000 Benchmark Cities 2019 Sex assaults (excluding rape) Sexual Assaults per 1,000 Citizens Annual Comparison 2018 2019 2020 0.51 0.48 0.25 0.46 Avon Clearance Rates Benchamrk Cities Average Part I 2019 Crime Clearance Rates Annual Comparison (Avon rate is average of Part A crimes which are compared to Part I) 2018 2019 2020 Page 31 of 33 TRAFFIC CRASHES Traffic Crashes in 2020 were reported at 139, down from 155 in 2019. There were five (5) impaired driving related accidents, 3.60% of total crashes. Most crashes in Avon occur on Interstate 70, Avon Road, Beaver Creek Boulevard, Beaver Creek Place, and Metcalf/Nottingham Roads. These are our most traveled roadways. The 2019 Benchmark Cities Survey indicates that the crash rate for 1,000 citizens annually was 19.2. Factoring this average would equate to 123 (vs 139 in 2020) crashes in Avon annually. The 2020 injury accidents included:  1 (complaint of injury), 1 (non-incapacitating) out of 27 collisions on I-70.  2 (Incapacitating), 1(complaint of injury), 1(non-incapacitating) out of 36 collisions on Avon Road  1 (complaint of injury) out of 7 on Metcalf/ Nottingham  2 (complaint of injury) out of 5 on Post Blvd  3 (complaint of injury) out of 57 in other locations in Town. TRAFFIC ENFORCEMENT In 2020, Avon Police Officers conducted 1,707 traffic stops (1,949 in 2019, 1,985 in 2018). In respect to the 1,707 traffic contacts, Avon Officers issued 308 traffic citations/summonses and 69 DUI arrest summonses. This enforcement accounts for 22.08 % of all traffic contacts (including DUI) and inversely, we provided warnings/requests for behavioral change to 77.91% of our traffic contacts. This statistic also reflects our philosophy of striving to gain behavioral change for priorities like impaired driving, speeding and not wearing a seat belt. As you can see, the clear majority of traffic contacts end up with a cordial warning and encouragement to fulfill our collective community social obligation to be safe drivers on our roads for all our citizens, residents, and guests. 18% 25% 0% 5%5%3% 44% 2020 Traffic Crashes Interstate 70 Avon Road Beaver Creek Blvd/Beaver Creek Place Metcalf/Nottingham Wildridge Post Blvd Other Page 32 of 33 2020 Traffic Warnings and Citations Race/Sex Warnings (Via E- citation) (Adjusted with demographical information from CAD information for warnings not issued through eCitation device) Citations Total % of overall traffic contacts (cites and warnings) Caucasian/Male 603 108 711 43.41 Caucasian/Female 319 55 374 22.83 African- American/Male 40 6 46 2.81 African- American/Female 6 2 8 0.49 Hispanic/Male 215 91 306 18.68 Hispanic/Female 114 38 152 9.28 Asian/Male 20 4 24 1.46 Asian/Female 3 3 6 0.37 OTHER (M&F) 10 1 11 0.67 TOTAL 1330 308 1638 100 Note: This graphic includes traffic warnings, summonses and citations excluding the 69 summonses issued for DUI. The 2020 ethnic breakdown of our traffic stops to include educational warnings and tickets (excluding DUI):  27.96% of our traffic stops were with persons of Hispanic ethnicity; 18.68% Hispanic males and 9.28% Hispanic females. This compares with 49% of our census population who report Hispanic heritage  43.41% of our traffic stops were with Caucasian males  22.83% of our traffic stops were with Caucasian females  2.81% were with African males  .49% was with African American females Page 33 of 33 Out of 1,707 traffic contacts there were zero sustained complaints filed regarding unprofessionalism or bias policing. The 2020 Benchmark Cities Survey lists the average number of annual traffic citations per 1,000 citizens at 121. This compares with 58 citations per 1,000 citizens in Avon, which is well below the survey data average. Thank you, Chief Greg Daly ### 154 309 1561 48155302 1508 35139 308 1266 52 Traffic Crashes Traffic Summons Traffic Warnings Seat Belt Citations Traffic Enforcement Annual Comparison 2018 2019 2020 65 121 62 58 Avon Citation Average (including DUI) Benchmark Cities 2019 Traffic Citations per 1,000 Citizens Annual Comparison 2018 2019 2020 2020 Annual Report Serving Avon for 40+ Years! Our Mission: “We serve to better our community” “Servimos para mejorar nuestra comunidad” Our Motto: “Count on Us” We serve to better our community Avon Police Department 2020 Organizational Chart The 2020 Abbreviated Highlights-By the Numbers 26,741 Calls for service-4,274 dispatched calls, 21,964 self-initiated and 217 handled by dispatchers 11,037 directed patrols 530 criminal cases reported 662 incident reports taken with 491 follow up supplement reports 139 traffic accident reports 273 total custodial and summons/release arrests including 31 felony arrests 442 hours on foot patrol 384 hours on bike patrol 69 DUI/impaired driving arrests 1,770 traffic stops-1,299 ended up in an educational warnings, 308 citations/ summons issued 27.96% of our traffic stops were with persons of Hispanic ethnicity; 18.68% Hispanic males and 9.28% Hispanic females. This compares with 49% of our census population who report Hispanic heritage. 43.41% of our traffic stops were with Caucasian males. 22.83% of our traffic stops were with Caucasian females. 2.81% were with African males. .49% was with African American females. Average 4:32 minutes response time to emergent calls versus 5:40 minutes per 2018 Annual Benchmark Cities Survey We serve to better our community CALEA National Accreditation was awarded in March 2020-We successfully completed the 4th year of new four (4)-year assessment in September 2019. We then completed our on-site assessment in October 2019. We were virtually re-awarded our accreditation in March 2020. 181 Standards Life, health and safety issues Critical legal issues Conditions that reduce risk and high liability exposure Assessors inspect police operations Smallest Agency in Colorado, and only one west of Denver (except for statewide agencies- Colorado State Patrol and the Colorado Bureau of Investigation) Awarded Colorado Association of Chiefs of Police Accreditation AVON PD 2020 ANNUAL OFFICER USE OF FORCE Avon Police Officers attend to thousands of calls for service each year, in fact 26,741 in 2020. Avon Police Officers interact with thousands of persons on an annual basis. Avon PD officers respect all persons and protect all person’s rights as part of their day-to- day activities. Given the massive number of interactions, I am glad to report that Avon PD officers rarely must use force, while detaining or arresting offenders. Avon Officers are competently trained in verbal de-escalation techniques. In 2020, Avon Officers made 273 arrests, either by the issuance of a summons and subsequently releasing that person or physically placing that person in custody either to transport that person to the Avon Police Department for processing or for transport to the Eagle County Detentions Facility for booking. With those statistics in mind, in 2020, Avon Police Officers used some level of force on thirteen (13) occasions either by using limited physical force, by pointing their taser or firearm at a subject based on information provided to the officer via our dispatch center, previous contact interaction with an offender or on view sight of a weapon. There was one neck complaint by a mental health hold while officers were assisting paramedics to transport the patient for a mental health evaluation. There was one reported officer injury with a kick to the knee but there were no further issues reported. Limited soft hands were used in six (6) incidents and weapons were directed in seven (7) incidents, 6 incidents where firearms were directed and one where a taser was directed. AVON PD 2020 ANNUAL OFFICER USE OF FORCE CHART PROFESSIONAL STANDARDS/ INTERNAL AFFAIRS INVESTIGATIONS As previously mentioned, Avon Police Officers conducted 1,770 traffic stops and had thousands of citizen/resident/guest interactions in 2020. There were three (3) professional standards reviews/complaints in 2020. The three (3) complaints were internally generated based on patrol vehicle collisions. One collision involved an officer on an e-bike striking a vehicle in an oncoming lane causing minor damage to that vehicle. The second collision was a reversing accident in the car wash because the exit bay door was not opening. The third incident was a rear end collision where our officer was hit from behind on Eastbound Interstate 70. The first two investigations found that the officers were at fault and were counselled and if required they completed CIRSA defensive driving training. I am very happy to report that we did not receive any external citizen/resident/guest complaints in 2020. Avon Police Officers are not perfect, but we endeavor to maintain high professional standards and treat all with dignity and respect their race, gender, sexual identification, religious beliefs, or ethnicity. 2020 SENATE BILL 217 On June 19, 2020, Governor Jared Polis signed Senate Bill 2020-217 into law. SB 20-217 is known as the Enhance Law Enforcement Integrity bill. The bill was introduced and passed within a very fast two-week period. The bill emanated partly as a response to the tragic murder of Floyd George at the hands of Minneapolis Police Officers. There was a lot of emotion in the passing of the bill, and it generally would be agreed that because of its speed of process, it contains some ambiguous and undefined language that needs to be corrected. The Northwest Colorado Council of Governments completed a research document on behalf of its membership to provide a regional perspective to local policy decisions being made in response to SB20-217. Some of the discussion referenced in this section is derived from the completed report, “Regional Impacts to Law Enforcement, SB20-217 Use of Force Bill”. The document was also supported by the Colorado Department of Local Affairs and the Town of Avon’s insurance carrier, Colorado Intergovernmental Risk Sharing Agency (CIRSA). The foreword was completed by Jon Stavney, Executive Director for NWCCOG. The research was completed by Heather Aracelli Coogan, retired Chief of Police for Littleton, CO. The bill covered several important issues involving law enforcement including the revocation requirements of a peace officers’ certification, use of force and deadly force, prohibited use of choke holds to subdue or arrest, demographic data collection, removing qualified immunity, peace officer training, duty to report and to intervene, body worn cameras and prohibited law enforcement actions in response to protests. 2020 SENATE BILL 217 However, for the most part the bill enacts some forward-thinking concepts when it comes to policing in Colorado and was a first in the United States. I am glad to report that many aspects of the bill were already incorporated in the Avon Police Department’s policies, procedures, and training. In fact, we have had to make small subtle changes to comply with some aspects of the new law. Our CALEA accreditation had ensured that we had many policies and practices already in place. There were subtle changes to our use of force policies.The intent of SB217, is to ensure that law enforcement officers utilize verbal de-escalation and less lethal levels of force before using lethal use of force. Our Use of Force requirements already required officers to formally report whenever a firearm was pointed at or used or when a less lethal shotgun or taser was pointed at or used against a person. Chokeholds are banned for restraint and arrest control situations but can only be used in a lethal force situation when saving an officer’s life or member of the public. SB217 requires accountability through the use of bodycamera by July 1st, 2023.The Avon Police department has had a bodycamera program since 2015. In fact, we were the first law enforcement agency in Eagle County to issue body cameras to all officers. Bodycameras have been an excellent tool for police accountability, for evidence capture in the prosecution of criminal cases,for internal training and at times for internal professional standards investigations. Unlike Vail PD, Eagle County Sheriff’s Office, or the Colorado State Patrol we did not have in car cameras. However, the Avon Town Council had the vision to approve in-car camera systems to further increase accountability and transparency in our dealings with our community. The in-car cameras will be able to 2020 SENATE BILL 217 The training staff at the Avon Police Department take pride in our ongoing in-service training. We train on a quarterly basis in every aspect of community policing. We have an annual matrix to ensure that we cover all Police Officer and Standards Training (POST), CALEA and the Colorado Intergovernmental Risk Sharing Agency (CIRSA) required trainings to include; de-escalation training, community policing/community partnership, anti-bias, proper holds and restraints, driving, firearms, arrest control/defensive tactics, less lethal weapons, CALEA update, legal/ search and seizure updates, all hazards/ incident command, CPR/first aid, ethics, crisis intervention de-escalation updates, immediate action response, Truckers against Trafficking, sexual/workplace harassment and response to active threat/shooter events. This is not an all-inclusive list. Data collection reporting requirements; Beginning July 1, 2023, the act requires the Division of Criminal Justice (DCJ) in the Colorado Department of Public Safety to create an annual report of the information that is reported to the division, aggregated, and broken down by state or local agency that employs peace officers, along with the underlying data. Each local agency and the Colorado state patrol that employs peace officers shall report to the division: •All use of force by its peace officers that results in death or serious bodily injury; •All instances when a peace officer resigned while under investigation for violating department policy; •All data relating to contacts conducted by its peace officers; and •All data related to the use of an unannounced entry by a peace officer. 2020 SENATE BILL 217 The Avon Police Department has been collecting data for all of our traffic stops for years as part of our CALEA accreditation. We complete an annual report tracking the ethnicity of all of our traffic stops. The purpose of the report to identify any trends or patterns that would suggest profiling or bias based policing. I am very happy to report that the Avon Police department does not make traffic stops or pedestrian contacts based on race, gender, sexual identification, religious belief or ethnicity. SB217 when passed required law enforcement agencies to immediately begin to capture the ethnicity information on self-initiated traffic stops and pedestrian contacts with a legal objective to report the ethnicity of all self-initiated traffic stops and pedestrian contacts to the Colorado State Department of Criminal Justice. The bill surprised many agencies that had not been accumulating this type of information in the past. Additionally, the bill did not specify how the information should be collected and ultimately how and in what format, that information will be submitted to the DCJ starting in July 2023. Community policing-as documented throughout this report, community policing is the backbone of what Avon Police Officers do twenty-four (24) hours a day. We conduct comprehensive community outreach activities throughout the year. Crisis Intervention Training (CIT)-a priority of the Avon Police Department. 100% of all currently serving police officers have completed the forty (40) hour crisis intervention training. 2020 SENATE BILL 217 Dealing with mental health-APD has made it a priority to identify mental health crises as medical events and not criminal events. APD was the first agency in Eagle County to say “no” to transporting community members who were in mental health crisis, in handcuffs in police cars, as was the previous protocol for mental health transports. We worked collaboratively with our law enforcement, EMS, hospital, and behavioral health partners and have evolved much better procedures in dealing with mental health crises. The Avon Police Department was one of the partners in bringing the Eagle Valley Hope Center into operation into Eagle County. The TOA/PD contributes $19,500 towards their annual operation. We practice a co-responder model of involving a Hope Center clinician and an Eagle County Community Paramedic at the earliest juncture on a mental health crisis call. Police Officers are usually the first to be dispatched to an event and respond to ensure a person is not actively trying to hurt/ kill themselves. We then call in the clinician and community paramedic as soon as it is safe to do so and conduct a “warm hand off” to their staff and then we extricate ourselves from the scene unless needed. This new paradigm shift directly ties in with Avon PD’s values and focuses on treating a person in mental crisis as a medical patient and not as a criminal. In 2020, Avon police officers responded to; 75 Welfare Checks , 4 Mental Health Holds 53 Suicidal calls, 62 Calls for Service directly related to Hope Center 13 Calls for Service directly related to Safe2Tell (Note: there was some cross over between the Hope Center, Safe to Tell, suicidal calls and welfare checks) 2020 SENATE BILL 217 Hiring practices-A lot of the terrible criminal events involving police officers throughout the United States can be associated with the hiring practices and the culture of those departments. I am glad to report that the Avon Police Department has very high hiring standards. We are a small department, but we find budget to send a sergeant out of state to interview former employers, friends, family, and next-door neighbors of prospective employees. We also complete a very comprehensive background integrity interview, a polygraph, a psychological evaluation by a trained police psychologist, a physical fitness test, a physical, an oral broad interview and finally a Chief’s interview. This process is very robust to ensure we hire individuals that are going to fit into and thrive in the values and culture of the Avon Police Department and that of the Town of Avon community. Virtual simulator-Avon Police Officers have trained on use of force firearms simulators in the past. We have trained on the Colorado Bureau of Investigations VITRA 360% simulator in Grand Junction. We have also borrowed a simulator from both Breckenridge PD and Snowmass Village PD. Town Manager Eric Heil had an opportunity to train on a borrowed simulator in 2020 and recognized the unique training value of a simulator. The Avon Town Council with vision, approved the joint purchase of a firearms simulator with the Eagle County Sheriff’s Office to be permanently mounted in the briefing room at the police department. In respect to SB217, the simulator creates stress inoculation scenarios for officers so that they make better use of force decisions. The simulator has verbal de-escalation, less lethal force, and lethal force scenarios to help officers more accurately analyze a use of force encounter and in turn it aids the officer in determining the right use of force option for the circumstances presented to them. The simulator will be used by Avon Police Officers and Eagle County Sheriff’s Deputies on a 24-hour basis. The simulator will be offered to our partner law enforcement agencies in Eagle County. 2020 SENATE BILL 217 Removal of qualified immunity both for officers and for municipalities-The act allows a person who has a constitutional right secured by the bill of rights of the Colorado constitution that is infringed upon by a peace officer, to bring a civil action for that violation. A plaintiff who prevails in the lawsuit is entitled to reasonable attorney fees, and a defendant in an individual suit is entitled to reasonable attorney fees for defending any frivolous claims. Qualified immunity is no longer a defense to a State civil action. There are two sides to this argument. There is the argument that says that officers cannot be protected by a shield of qualified immunity, and if an officer has broken the law, he or she will be personally liable for costs/damages up to $25,000. The act requires a political subdivision of the state to indemnify its employees for such a claim; except when the peace officer's employer determines the officer did not act upon a good faith and there is a reasonable belief that the action was lawful, then the peace officer is personally liable for five (5) percent of the judgment or $25,000, whichever is less. Unless the judgment is uncollectible from the officer, then the officer's employer satisfies the whole judgment. A public entity does not have to indemnify a peace officer if the peace officer was convicted of a criminal violation for the conduct from which the claim arises. On the other hand, this legislation potentially opens officers up for frivolous lawsuits and could ultimately decertify that officer from working as a police officer, even if the officer did not knowingly do wrong. The other effect of this bill is to remove limits from what a town or city can pay by way of damages and in turn could lead to increased insurance costs. The Colorado State Patrol (CSP) and the Colorado Bureau of Investigation (CBI) were previously excluded from this legislation because the fiscal note was not budgeted for. However, CSP and CBI are to be included in an SB217 version 2, currently being legislated in the State Capitol. 2020 SENATE BILL 217 The act requires a peace officer to intervene when another officer is using unlawful physical force and requires the intervening officer to file a report regarding the incident. If a peace officer fails to intervene when required, the Police Officers and Standards Training Board (P.O.S.T.) shall decertify the officer. If any peace officer is convicted of or pleads guilty or nolo contendere to a crime involving the unlawful use or threatened use of physical force or the failure to intervene in another officer's use of unlawful force or is found civilly liable in either case, the P.O.S.T. board shall permanently revoke the peace officer's certification. The P.O.S.T. board shall not, under any circumstances, reinstate the peace officer's certification or grant new certification to the peace officer unless exonerated by a court. (https://leg.colorado.gov/bills/sb20-217) STOLEN VEHICLES UPDATE From October 30, 2020, to date there were eleven (11) motor vehicles stolen in Avon. In addition, there were five (5) vehicles stolen out of Vail and a further fourteen (14) in Unincorporated Eagle County. The perpetrators unlocked running “puffer” vehicles but also broke into secured locked vehicles. The modus operandi appeared to steal a vehicle, move it to another location, rifle through the vehicle for any items of value, dump the vehicle and then steal another. Additionally, there were vehicles stolen in Eagle County that were dumped in Summit County and in Adams county. Ultimately all of the vehicles stolen in Avon have been located and recovered. Some of the vehicles have sustained substantial damage. The perpetrators appeared to be predominantly coming from Adams and Denver counties. The perpetrators were involved in multiple motor vehicle pursuits with law enforcement in Eagle County, Garfield County, Moffat County, Jefferson County and in the Adams county area. There were multiple firearms found during many of the arrests. A suspect was reported to have fired a weapon at a Colorado State Trooper in the Moffat County Area. Detectives and Officers from Avon PD, Vail PD, Eagle County Sheriff’s Office, and the Colorado State Patrol have been working collectively on these cases. The Avon Police Department conducted forensic investigations on multiple recovered stolen vehicles.In one case, with the assistance from an Eagle County Sheriff’s Deputy, we were able to obtain a fingerprint from a cell phone left in one of the stolen vehicles. We submitted the evidence to the Colorado Bureau of Investigation and got a fingerprint match back to a known offender out of Denver who has multiple similar charges against him in multiple jurisdictions. In addition, we were able to identify a female offender that was a co-conspirator in the execution of some of the crimes. She also has multiple similar offenses against her in a variety of jurisdictions. Avon PD and Vail PD Detectives have been working on comprehensive arrest warrants for both offenders, invoking the Colorado Organized Crime Act (COCA). COCA cases have a sentencing enhancer. Both offenders have been arrested on our collective warrants. Two additional perpetrators were in Adams County and were charged. The 2019 Abbreviated Highlights The 2019 Abbreviated Highlights The 2019 Abbreviated Highlights The 2019 Abbreviated Highlights The 2019 Abbreviated Highlights The 2019 Abbreviated Highlights The 2019 Abbreviated Highlights The 2019 Abbreviated Highlights 2020 Highlights During the current COVID-19 pandemic, the Avon PD team has ensured continuity of operations, protecting, and serving our citizens, residents, and guests. The police department building has remained open throughout the crisis in order to provide a sense of normalcy to those that we serve. The police officers and administrative service officers have adapted to the ever- changing environment whilst maintaining sufficent staff in the office and on the streets. During the first few months of the pandemic, nighttime officers turned on their solid cruise lights while on patrol at night to show presence and offer some comfort during those tense and uncertain times. We have been working collaboratively with all Town of Avon Departments, with Eagle County Public Health, with Eagle River Fire, Eagle County Paramedic Services, partner Law Enforcement agencies and with local medical care facilities throughout this crisis. Throughout the pandemic, Deputy Chief Cosper has been part of the Eagle County Emergency Operations Center managing the Emergency Support Function 13 (ESF13), law enforcement/ public safety, keeping all law enforcement leaders updated on public health order changes, formulating and ensuring the dispersion of personal protective equipment to all law enforcement in the county, communicating with our EMS and Fire Department partners and updating standard operating procedures for police officers responding to routine calls and how to respond to suspected COVID-19 cases. In addition, as part of the preparation for COVID-19 crisis, Deputy Chief Cosper completed a Town of Avon continuity of operations plan for Town governance. Officers from the Avon Police Department were honored to be recognized at the Vail/Eagle/Edwards Tri Rotary Club/Starting Hearts Public Safety Heroes Recognition banquet for both “Call of the Year” for the “Sebastian” multi-agency search in Eagle and they also received a unit citation for a Hostage Rescue event at the Mountain Stream condominium complex on February 29, 2020. 2020 Highlights Increased our social media presence to include over 3400 followers of the Police Department Facebook page In 2020, we successfully recruited new three police officers, Lopez, Villegas and Davidson. Avon Police Officers and Detectives continue to collaborate with the Gore Range Narcotics Interdiction Team (GRANITE) Successful sixth community resort policing ski patrol program for the 2019-2020 season. APD with assistance from Public Works and Mobility planned and executed an evacuation exercise for the Wildridge subdivision. We conducted a mock evacuation on the June Creek/ Berry Creek access road with Town of Avon Public Works pickup trucks and used an Avon Mobility bus for evacuee transport. Administrative Services Officer Krista Jaramillo was elected as president of the Rocky Mountain Accreditation Network (RMAN), our regional PAC for law enforcement CALEA accreditation. Sgt. Holmstrom continues as a member of the steering committee for the Treetop Forensic Interview and Child Advocacy center based in Breckenridge for the 5th Judicial District. He has worked on setting up the center through funding from a variety of governmental sources. The Town of Avon through the Avon Police Department council approved budget is contributing $5,000 to the program for child forensic interviews. In addition, Avon PD contributes $5,000 to the other child advocacy center, Riverbridge in Glenwood Springs. We utilize both centers for forensic interviews for children who have been victim of sexual assault, assault, neglect, or abuse. 2019 Highlights APD continue to partner in the Eagle County Special Operations Unit and in the Gore Range DUI Task Force. We continue to participate in the countywide Law Enforcement Immigration Alliance, furthering relationships with our Latino community. Avon PD has ten veterans out of 21 officers (two US Navy, two US Marines and six US Army). Our veterans have participated in various community veteran’s day education activities to include speaking at local schools. Avon Police officers continue to deliver positive police interactions and education to the children at Avon Elementary. Officer Colleen Gaspard and Sergeant Bal Herrera have fulfilled the dual roles of police officers and School Resource Officer liaisons with the Avon Elementary School staff and continue to have a great working relationship with Principal Dana Harrison. Avon PD participated in the National Drug Take Back program. We were happy to have participated in this excellent national program, ensuring that prescription drugs don’t make it on the street and those same drugs don’t end up in our precious watershed. Avon Police were honored to assist with the delivery of Thanksgiving Food packages on behalf of the Vail Valley Salvation Army. 2019 Highlights APD successfully hosted the 12th Annual Avon Police Citizen’s Academy. We had 9 participants. We hosted the 8th Annual Latino Avon Police Citizen’s Academy with 24 participants. Both academies were hosted in conjunction with other Eagle County Law Enforcement agencies. Chief Greg Daly is the current board president and actively participates with The Speak Up Reach Out Suicide Prevention Coalition to prevent suicide in Eagle County by providing education, training, and hope. Chief Greg Daly also attends the Total Health Alliance, is a member of the ten-person Mental Health Advisory Committee, advising the Eagle County Board of County Commissioners on spending the 1 A funds. He is also on the advisory board to Eagle Valley Behavioral Health. The Avon Police Department, in partnership with Vail Resorts, and through an Eagle County Sheriff’s Inter Governmental Agreement, participated in another great season of the Law Enforcement Ski Program at Beaver Creek. This program allows officers to ski as police officers and assist the Sheriff with operations on the mountain during an off duty/secondary work agreement. The officers are compensated a ski-pass for participating in the program. The season continues to be very successful with lots of great community interactions and very positive feedback from ski resort employees. Avon Police Department with our partners from the Town of Avon Public Works and Transit, Eagle River Fire, Vail PD, Colorado State Patrol, Eagle County Paramedics and Vail Communications center conducted our annual West Wildridge Evacuation exercise in May 2020. We practiced the alternative evacuation routes west of the subdivision through Forest Service connector road 717.1B. 2020 Highlights Avon PD officers continue to serve as part of the multi-agency Eagle County Special Operations Unit (SOU). The SOU team responded to Basalt to assist Basalt PD with an armed criminal barricade. The party surrendered shortly after the team arrived in the large, armored rescue vehicle. The team conducted a hostage rescue mission, involving an armed hostage taker, at the Mountain Stream complex in Eagle Vail in February. The team also assisted the U.S. Secret Service with protection of Vice President Pence and his family over the Christmas break and during convoy operations to and from the Eagle County Regional Airport. There was a minimal overtime cost for the Avon PD officers who participated, and we received many thanks from citizens and guests who noted the team’s presence in Vail Village during the visit. APD organized and co-hosted with the Eagle County Sheriff’s Office and Vail PD, our annual countywide active shooter response training and collectively trained nearly 65 officers, deputies, and Colorado State Troopers. The fire departments and EMS were not able to participate this year due to wildland fire concerns and ongoing COVID-19 concerns. The training was predominantly conducted outside at the Colorado National Guard High Altitude Army Training Site (HAATS) base at the Eagle County Regional Airport. This life saving training has become an anchor countywide training. APD completed a sixth successful summer season with a part-time, non-sworn community response officer (CRO). CRO Lopez helped to educate our community and guests regarding Nottingham Park rules and etiquette for a more family friendly experience at the beach. The CRO also assisted with managing the parking plan on the Northside of West Beaver Creek Boulevard. Officer Recruit Lopez successfully graduated from the police academy and is currently in the field training program. 2020 Highlights Pastor Nate and Pastor Michael from Calvary Church continue as our departmental chaplains. They provide both religious and secular counselling to our officers dealing with the stress and trauma of the profession. They both were called out as trauma assistance after the officer involved shooting at Walgreens. Avon PD with our other law enforcement partners have engaged Code 4 Counselling out of Aurora to provide mental health services both from the resiliency and direct counselling services to our officers. They visit for two days per month and provide counselling services to officers throughout Eagle County. These services are currently provided though a state Department of Local Affairs funded grant. In October, Chief Daly was honored to receive a “Leadership Excellence” award in the annual awards ceremony hosted by Colorado Mothers Against Drunk Driving (MADD) and the Colorado Department of Transportation for his support of DUI enforcement and for his eleven DUI arrests in 2019. The Avon Police Department responded to a dramatic gas line fire at Eaglebend apartment complex. Avon Police officers bravely evacuated the surrounding buildings, set up incident command and worked a unified command structure with Eagle River Fire and Xcel energy to bring the fire and gas leak to a safe and successful conclusion resulting in no fire damage to structures or injured residents or responders. 2020 Highlights Chief Daly and Sgt. Dammen assisted members of the Federal Bureau of Investigation (FBI) Hostage Rescue Team (HRT) - Blue Team with training In Routt County, Eagle County and Garfield County. Due to our relationship with FBI HRT, our Eagle County Special Operations Unit was able to conduct some helicopter training with the FBI’s Tactical Helicopter Unit while they were here supporting the tactical team. Avon Police officers on the Eagle County Special Operations Unit was able to conduct some further helicopter training with the Colorado National Guard Counter Narcotics Unit. Avon PD conducted a police bike school for Avon police officers. All twenty (20) of current twenty-one (21) Avon Police Officers have completed a 40-hour Mental Health Crisis Intervention Training (CIT), a nationally recognized verbal de-escalation course, whilst also increasing officer’s knowledge and sensitivity to mental health crises. CIT training is a department priority for all new police officers. Deputy Chief Cosper also serves as a board member on the 5th Judicial District’s V.A.L.E. (Victims Assistance and Law Enforcement) board, managing the 5th Judicial District’s dispersal of funds accrued by the court system in the support of victims. We had two promotional testing processes for detective and patrol sergeant. Detective Alan Hernandez and Sergeant Balmore Herrera were our successful top candidates from a very competitive pool and succeeded through very stressful testing processes. Alan and Bal are immigrants from Mexico and Honduras and are both bilingual and bicultural. 2020 Highlights Happy Halloween! Avon Police Officers purchased and prepared nearly 400 individual Halloween bags for Avon children. Officer Andres Sandoval, Sgt. Tyler Churches, Mrs. Churches and Officer John Mackey stuffed the Halloween themed, Town of Avon recyclable bags in the week before Halloween. The purchases were aided by a community grant from Walmart. Officer Sandoval, Officer Mackey (who came in on their days off) and Community Response Officer Martinez transported the bags in a Town of Avon Public Works truck over to the Avon Elementary School. Principal Dana Harrison and her staff assisted with the Officers in distributing a Halloween bag to every kid in their respective classrooms. The officers then went over to the Eagle Bend apartment complex and met the kids coming off the school bus from Homestake Peak and distributed a further 40 bags. This was our way of thanking our Avon children, especially with our children dealing with so many COVID-19 related impacts. If they decided not to trick or treat, because of COVID-19 concerns, then they have a stuffed Halloween bag from the Avon Police Department, the Town of Avon and Walmart. The bags contained police stickers, pens, a small blanket, slime, crayons and an array of Halloween candy. Thank you to Officer Sandoval for leading this community policing initiative, to Officer Mackey, Sgt. Churches, Mrs. Churches and Community Response Officer Martinez for making it happen. Avon PD, other law enforcement and Eagle County Paramedics work in concert with the Hope Center to Eagle County on crisis calls throughout Eagle County. This program offers crisis response clinicians who co respond with Eagle County Community Paramedics and Avon PD officers to the scene and endeavor to stabilize a mental/behavioral health situation in the home rather than transporting to the emergency room and/or mental health hospital. The first-year operations statistics demonstrated a reduction in mental health transports by the Eagle County Paramedic Services by 78%. These patients have been triaged in their own homes, rather than been transported to the emergency department and subsequent transport to a mental health facility. Avon PD as part of our council approved budget provides $19,500 in funding for this incredibly important mental health resource. Additionally, the Council provided a further $10k for summer counselling in 2020. 2020 Highlights Chief Daly was appointed by Governor Polis and Attorney General Phil Weiser to the board of the Colorado Police Officers and Standards Training regulatory body for policing in Colorado. In December, the Avon Police Department with assistance from Eagle River Fire Engine 7 Company, Eagle County Paramedics and community volunteers hosted a fun drive-thru “Shop with A Cop” experience for twenty (20) of our local kids. Incorporating COVID safety practices, APD arranged to have the selected families pull into the police department parking lot from Buck Creek Rd and exit, onto Swift Gulch. We had DJ Omar Loya spinning some beats and the crime fighting dog “Mc Gruff” running around making everyone laugh. Santa Claus, Avon Police Officers, ERF Firefighters, Eagle County Paramedics and other volunteers handed out the gifts to the children as they arrived. Avon Police Department with partners Vail Police Department celebrated 18 years of giving back to the local children with Shop with a Cop 2020. The Shop with a Cop program sponsors children with financial needs, those who are underprivileged, or those who might benefit from a positive interaction with police. In Avon, the children were chosen by Principal Harrison and her staff at the Avon Elementary School. The children picked the gifts online from Walmart and Avon PD picked up the gifts using Avon Public Works trucks. Officers, along with many volunteers from the community, wrapped all of the gifts. It took a great team effort to ensure the success of the program and to make it a fun memorable experience for the children. Special thanks to our Avon PD School Resource Officers Bal Herrera and Colleen Gaspard for planning and making this event happen. The Avon Police Department thanked the following for sponsoring the 2020 Shop with a Cop event: Town of Avon, U.S. Bank, Eagle River Presbyterian Church/ Officer Bradley Stamp, Avon Burger King, Avon Pazzo’s Pizza, Polar Star Properties, Avon Starbucks (East Hurd), Avon Domino’s Pizza, Avon Northside Kitchen, Gondola Pizza, Avon Bakery, VFW Post 10721, Holy Cross Energy Grant, Walmart-special thanks to Clarissa, Doris and the online shopping team, the Chavez Family, Town of Avon Public Works, Town of Avon Transit, Wishes Toy Store, Castaneda’s Mexican Market, Jeff Schiros, Jorge Membrano, Carlos Solis, DJ Omar, fundraising by the Vail Police Department and numerous anonymous donors that assisted in making this event an amazing night for all involved! 2020 Highlights Master Police Officer Pecks Final Radio Call before Retirement-“Master Police Officer Peck, we accept your retirement resignation with bittersweet emotion. On one hand, we will miss your presence and your positive influence on your colleagues and on this department. You have served with honor and integrity, and you have made this department and the Avon Community better with your service. On the other hand, we are happy that you will now enjoy a new and happy chapter in your life with your close-knit family. It will be a tough transition because being an Avon Police officer has been such a huge part of your life for over 30 years. However, you have served for more years than the average police service and you know that you have made many lives better by your role as a police officer, here in Avon. You will continue to be part of the Avon PD family. It has truly been an honor to have served with you. Rest Easy, we have the watch! From the men and women of the Avon Police Department.” The Marvelous Mrs. Merling and her husband Joe struck again (in a good way!). The 2019 Avon PD Volunteer “Baker of the Year” provided some delicious home cooking to Avon Police Officers during in service training days. We don’t think that we deserve this appreciation any more than our fellow first responders or front-line personnel, but we sure do appreciate the Merling’s We train hard and smart to be always ready We train hard and smart to be always ready-firearms qualifications at the Colorado Bureau of Investigation, Grand Junction We train hard and smart to be always ready Avon PD-Part of Eagle County Special Operations Avon PD-Part of Eagle County Special Operations Christmas Card and New Operator Physical Testing Avon PD-Part of Eagle County Special Operations Avon PD-Part of Eagle County Special Operations Avon PD-Celebrating our medical heors at Vail Health! Avon PD-Protecting and respecting all rights! We serve to better our community APD 2020 Work Plan includes day to day operational work and projects in the following areas. Operations Special Projects Recruitment/ Hiring Accreditation Training Special Events Community engagement/ programming We serve to better our community 2020 STRATEGIC GOALS; 1. Continue community resort policing by further engaging with our community and guests, through bicycle patrols, Coffee with a Cop events, hosting a Ski with a Cop activity, National Night Out , Latino and Citizen Police Academies and the Kids, Cops and Hoops program. 2. Continue our CALEA national accreditation, adhering to nationally recognized policies and procedures reflecting community values, while recognizing and respecting individual rights. We will be adopting the 6th edition, which will involve considerable work updating our policies and procedures to the most current edition. The year 2020 will be our first year of a new four-year accreditation cycle. We will finalize the implementation of a countywide Records Management System web-based upgrade. 3. Fully implement a drone program with qualified officer pilots, and with a good operating policy, to use in incidents to include lost children, lost adults, traffic accidents and tactical operations. Also, transition the eCitation program from handheld devices to the in-car mobile terminals. 4. Continue to assist the GRANITE Drug Task Force in apprehending and prosecuting drug dealers and to reduce the exposure of our children especially to the harder drugs like meth, heroin and cocaine that have been more prevalent in our community. 5. Conduct a wildland fire evacuation exercise for Wildridge subdivision before Wildland fire season in 2020. We serve to better our community Operations Respond to 911 calls/ Traffic accidents 24/7/365 Complete criminal and traffic accident investigations Respond to mental health assistance calls Parking enforcement Proactive directed patrols to diminish criminal activity Traffic safety Animal control response Front desk customer service/ fingerprinting/ VIN checks/ Records Requests Report management, case submission to DA/ Municipal Court Evidence management Crime Analysis Purchasing/ requisitions, Training & grant management Court testimony/ DOR appearances Major case investigations DUI enforcement Click it or Ticket School Resource Officer program with Avon Elementary School GRANITE drug task force Six-month Field Training Program for new officers Plan and implement summer community response program for Nottingham Park start training in May to be ready for June Bike patrol and foot patrol We serve to better our community Special Projects New cars, purchase, graphics fit out Plan and lead countywide Active Shooter training in June at Edwards Fire Tower Participant in the steering committee for the Treetop Forensic Interview and Child Advocacy center for the 5th Judicial District. Wildland evac exercise Participant in General Detective regional meetings Colorado Model Traffic Code 2021 update (from 2017) Fully implement drone program with at least five officers trained and qualified as Part 107 pilots Recruitment/ Hiring Recruit the best ! Utilize recruitment video at every opportunity Attend recruitment fairs at academies, high schools, job fairs, college fairs Accreditation Complete end of year CALEA reports in recruitment, training, use of force, anti-bias, pursuit and forcible stopping, Professional Inquires, Active Shooter Continue accreditation for new year four (4) assessment cycle. Update to the 6th edition Krista Jaramillo is President for the Rocky Mountain Accreditation Network We serve to better our community Training (To keep our community, officers and staff safe and to comply with POST, Federal and CALEA requirements) Quarterly firearms (rifle handgun)/, defensive tactics/ Krav Maga Driving Active shooter training Monthly SOU training and forty (40) hour block in June Plan for Krav Maga Instructor Recertification next February Terrorism Liaison Officer Basic Drug investigator school Breacher training SWAT schools for officers Handgun Qualifications Proper Restraint and Holds Anti-Bias Crisis Intervention Training /De-escalation Community Policing and Partnerships SFST Refresher Less than lethal weapons-Taser/ Bean bag shotgun Use of Force Policy Essential Job-Related Tasks Test-Fitness testing We serve to better our community Training continued Legal Update ICS/Emergency Operations Plan/All Hazards CALEA Updates/ Search, Seizure and Arrest Policy Infection Control / Bloodborne Pathogens Pursuit Policy Back and Fall Injury Prevention Crisis Intervention Training Force on force training Animal Control River Bridge Child Advocacy Center Stop Sticks Immobilization Device Slips Trips and Falls Winter Driving Bike Patrol Officer Sexual Harassment Below 100 CST in-service DRE in-service Positional Asphyxia /Excited Delirium Legal Update We serve to better our community Special Events Public Safety (to include Event action plans for larger more complex events) Colorado Classic Xterra Bec Tri / Major League Tri Man of the Cliff Community engagement/Programs Coffee with a Cop Tip a cop Annual Polar Plunge Torch Run Ski with a cop National night out (preparation, planning/ business & volunteer recruitment), National Night Out execution-rescheduled to October Kids, Cops and Hoops Latino Police Academy Citizens Police Academy Assist with Police Explorer POST 204 Law Enforcement Beaver Creek Ski Program Speak Up Reach Out Eagle Valley Behavioral Health We serve to better our community Community engagement/Programs Continued Participant in the steering committee of the Total Health Alliance for strategizing mental health funding priorities Participant in the steering committee for the Treetop Forensic Interview and Child Advocacy center for the 5th Judicial District Mental health advisory board to the Eagle County Board of County Commissioners Quarterly Radio Tech Ops meeting Quarterly meeting of Public Safety Council Quarterly meeting of 800 MHZ radio governance board Quarterly meeting of the Eagle County First Responder Fund Quarterly meeting of countywide Law Enforcement Immigration Alliance Quarterly RMAN meeting Initiated and current participant in the “Paris” task force seeking countywide cross discipline collaborative strategies to further the safety and security of our newborn population. Bear aware campaign Fall Continue to increase our social media presence, Currently over 3400 followers of the Police Department Facebook page. Veterans Day activities. Avon PD has ten veterans out of 21 officers (two US Navy, two US Marines and six US Army). Our veterans have participated in various community veteran’s day education activities to include speaking at local schools. Officer Zepeda is the VFW Post Commander. Town of Avon annual Liquor license meeting/ legal update/ Tipsy Taxi discussion and Sex Assault prevention education Salvation army basket delivery Shop with a Cop Community active shooter response seminars We serve to better our community Community Response Officer Ranger Rose Martinez and Ranger Joshua Hernandez have been hired for the summer season . Their primary mission is visibility and a resource for questions and clarifications on park rules. They also address dogs off leash and jumping off pavilion walls and generally do not request ID for that violation unless there is a concern or flagrant repeat offending. They will ask for IDs and clear for warrants for disorderly type offenses. They are not a lifeguards and individuals swim at their own risk in Nottingham Lake. They monitor the use of stand-up paddle boards and will educate on use of personal floatation devices when appropriate. At the direction of Town Council, we changed their uniforms to green and refer to them as rangers. We are striking that balance between guest services/ park ranger yet still have the the ability to enforce town ordinance and park rules when necessary. Kids, Cops and Hoops basketball program! Why we do this job! Why we do this job! Why we do this job! Avon PD Officers completing their annual fitness qualification Community Engagement-Halloween bag preparation Community Engagement-Halloween bag delivery! Community Engagement-Awards for initial COVID-19 response 2020 Shop with a Cop 2020 Shop with a Cop Saying farewell and Happy Retirement! Community Engagement-Town employee concealed carry firearms class 2020 Citizens Academy 2020 Citizen Police Academy Graduates 2020 Citizen Police Academy Graduates 2020 Latino Police Academy 2020 Latino Police Academy 2020 Latino Police Academy Graduates The men and women of the Avon Police Department sincerely appreciate the continued support of the Avon Town Council and Town Manager for the police department and for their continued commitment to the public safety of our citizens, residents, and guests. Any questions? Thank You/ Gracias TO: Honorable Mayor Smith Hymes and Council members FROM: Greg Daly, Chief of Police RE: Avon Police Department Comparison to other Peer Police Departments DATE: June 22, 2021 BACKGROUND: The tremendous work of the men and women of the Avon Police Department has been captured in the 2020 Annual Report, submitted in this council packet. They work tirelessly twenty-four (24) hours a day to deliver a premium professional police service to our Citizens, Residents and Guests. Our crime rates continue at historic lows and we believe they are attributed to our presence in our community, our community outreach, our relationship trust building and through our high visibility patrols. It is a delicate balance between deterrent presence and too much presence, but for the most part our citizenry, residents, and guests appear to appreciate and support our efforts to protect and serve. As a vibrant mountain resort police department, it is a healthy exercise to see how we compare to other mountain resort police departments in terms of staffing, operations, calls for service, community outreach, reported crimes, and budgets. I provide some comparator statistical information provided by the following agencies: Frisco, Silverthorne, Breckenridge, Telluride, Vail, Snowmass Village, Steamboat Springs, and Aspen. It is a little challenging to compare apples to apples because not all departments keep the same statistics. For example, a number of departments do not seperate out their incident reports numbers from their calls for service. A number of departments do not differentiate between self-initiated calls for service versus dispatched calls for service. Many departments have different computer aided dispatch (CAD) software systems and different report management systems (RMS). However, I have assimilated the provided information as much as possible for comparison purposes. In preparing this report, I would thank the following police leaders and their staff for taking the time and effort to respond:  Chief Josh Comte, Telluride Marshal’s Office,  Chief Corey Christensen, Steamboat Springs Police Department.  Assistant Chief Linda Consuegra, Aspen Police Department,  Commander Ryan Kenney, Vail Police Department  Chief Brian Olson, Snowmass Village Police Department  Chief Jim Baird, Breckenridge Police Department  Chief Tom Wickman, Frisco Police Department  Chief John Minor, Silverthorne Police Department OPERATIONS; STAFFING, CALLS FOR SERVICE, SELF-INITIATED CALLS, TRAFFIC STOPS & INCIDENT REPORTS Agency (Starting from smallest census population to largest) 2010 Census popul ation Number of sworn officer position s. Full time and part-time Number of code enforcement positions Full time and part time Number of civilian admin staff Total Calls for service Self-initiated calls for service (includes traffic stops) Traffic Stops Dispatched calls for service Total number of incident reports Telluride Marshalls Office 2,325 11 3 2 4,336 N/A 962 N/A 306 Frisco PD 2,683 14 2 2 6454 N/A 325 (Pre COVID 1450 with 25% tickets) N/A N/A Snowmass Village PD 2,826 9 2.5 1 4,259 N/A 645 N/A Silverthorne PD 3,887 18 1 3 7,266 N/A 747 Not broken out 1,764 Breckenridge PD 4,540 24 2 2 13,974 15,426 4,359 N/A 1,423 Vail PD 5,305 32 + 2 x .25 PT 7 5 39,541 24,165 includes 2,149 traffic stops 2,149 11,040 1,509 Avon PD 6,447 20 + .5 PT 2 x .25 PT=.5 2.5 26,741 21,964 includes 1,770 traffic stops 1,770 4,274 740 plus 491 supplement reports Aspen PD 6,658 28 + 1PT 5 5 22,746 N/A 1,833 (Pre COVID over 3,000) 17,251 1,453 Steamboat Springs PD 12,088 29 6 FT & 12 PT during summer 8 N/A 7,866 1,887 (Pre COVID 3,052) 16,305 4,486 Calls for service includes dispatched calls and self-initiated (SI) calls. SI calls include traffic stops. Some agencies have the ability/technology to track and separate out different categories of dispatch calls and SI calls. Some agencies/dispatch centers do not track certain metrics where “Not Applicable” (N/A) is entered. Agencies have varying policies as to when a full incident report is completed. Generally, incident reports are drawn for more serious criminal incidents/investigations. Otherwise, officers document details of the less complicated incidents though the in-car computer system where a full case report is not necessary. Again, this is agency specific. The number of incident reports does not include the additional number of supplemental reports- reports by other officers involved in a particular incident and/or follow up investigation supplemental reports. COMMUNITY OUTREACH ACTIVITIES This a summary of some of the community policing outreach and engagement activities by Avon PD and our peer communities. Some of these outreach activities may not have occurred in 2020 for COVID reasons. Avon PD- Nottingham Church Annual bike ride, women’s self defense classes, Coffee with a Cop, Kids, Hoops and Cops, National Night Out, Latino Police Academy, Citizens Police Academy, Colorado Special Olympics Torch Run, Colorado Special Olympics Polar Plunge, Shop with a Cop, Halloween Bag Delivery, assisting Salvation Army with food deliveries. sitting on multiple community nonprofits and boards to include Speak Up Reach Out Mental Health Advisory Committee to the Eagle County Board of County Commissioners, Victims Assistance Fund, Treetop Forensic Advocacy Center, and the 800 MHz Radio Governing Board. Telluride MO- Citizens Academy in the past but put on hold, looking to create an explorer’s program, Torch Run, Mental Health run. Silverthorne PD- Community outreach activities are handled by the Town Marketing Department or other entities. Breckenridge PD- Torch Run, Coffee with a Cop, Neighborhood Bike Rodeo, CARE classes at two elementary schools, Eddie the Eagle Classes Steamboat Springs PD- Citizen’s academy, Coffee with a Cop, CPR/First Aid in Spanish to Latino community, Department members sit on some non-profit boards to further engage community members. Aspen PD- Town wide Citizen Academy, Bike rodeo, In the past they have participated in more to include community picnic, Coffee with a Cop, Bingo with seniors, picnic in the park for the kids, bike safety and community ride, bike auction. Frisco PD- Frisco Elementary Annual Bicycle Rodeo. Dare Program, Latino Citizens Academy, Citizens Police Academy, Torch Run. Vail PD- National Night Out, Torch Run, Coffee with a Cop, Citizen Academies (assist with academies hosted by Avon PD) Snowmass Village PD- 100% of officers live in Snowmass Village. Officers participate as citizens in their local HOA boards, fire board, school coaching or clubs and groups. The community knows them as fellow neighbors, board members, coaches, and police officers. Supplemental employment (second jobs-non- LEO) within the community are typical. 2020 FEDERAL BUREAU OF INVESTIGATION NATIONAL INCIDENT-BASED REPORTING SYSTEM (NIBRS) CRIME STATISICAL COMPARISIONS Agency (Starting from smallest census population to largest) Group A Offenses Reported Group A Offenses Cleared Group A Adult Arrests Adult and juvenile) Group A Percent cleared Group A Crimes per 100,000 Group B Arrests (Adult and juvenile) Total Arrests Arrests per 100,000 population Telluride Marshalls Office 60 14 13 23.33% 2,382.80 39 52 2,065.10 Frisco PD 137 53 30 38.69% 4,254.70 51 81 2,515.50 Snowmass Village PD 43 15 12 34.88% 1,554.0 15 27 975.80 Silverthorne PD 202 26 5 12.87% 4,082.50 73 78 1,576.40 Breckenridge PD 566 340 299 60.07% 11,143.0 87 386 7,599.90 Vail PD 546 194 141 35.53% 9,981.70 110 251 4,588.70 Avon PD 290 134 99 46.21% 4,464.30 140 239 3,679.20 Aspen PD 256 46 38 17.97% 3,491.20 95 133 1,782.60 Steamboat Springs PD 717 272 171 37.94% 5,364.80 211 382 2,858.20 Note: Aspen, Breckenridge, Vail, and Steamboat Springs all deal with substantial ski thefts and deceptive use of ski passes so their false pretenses/swindle/confidence game and all other larceny categories can be higher than other municipalities. BUDGETS/ HOTEL ROOMS/ BED BASE: Municipal budget information gathered by TOA Intern Charise Bishop in 2020. Municipality (Starting from smallest census population to largest) Budget (all funds) Operating budget Number of FTE’s Number of part time/seasonal Bed base Hotel Rooms Short- term rentals Telluride $35,183,665 $10,963,569 79.5 60 1,854 59 1,795 Frisco $30,746,000 $16,625,000 102 120 1,270 559 711 Snowmass Village $30,583,119 $12,570,000 116 34 1,699 880 819 Silverthorne $32,474,000 $13,725,000 114 140 568 438 130 Breckenridge $82,000,000 $23,000,000 181 204 5,971 2,120 3,851 Vail $73,200,000 $51,000,000 284 52 3,823 1,720 2,103 Avon $35,051,000 $22,700,000 95 60 1,202 966 236 Aspen $139,403,650 $76,873,880 318 n/a 2,039 1,293 746 Steamboat Springs $61,383,604 $38,726,832 230 100 4,199 1,392 2,807 POLICE DEPARTMENT BUDGETS Agency (starting from smallest census population to largest) 2020 Budget Telluride Marshalls Office $1,497,323 Frisco PD $1,846,276 Snowmass PD $2,103,844 Silverthorne PD $2,767,511 Breckenridge PD $3,500,000 (approximate) reduced down from $4,063,982 from COVID reductions Vail PD $6,140,973 Avon PD $3,813,568 (Subtracting out gas $30,390 and fleet charges $75,195 for 2020. Capital replacement transfer charges from PD budget were deleted as part of COVID savings earlier in 2020) Aspen PD $5,703,580 Steamboat Springs PD $4,982,280 Note regarding vehicle replacement, maintenance, and fuel costs. Vehicle replacement, maintenance, and fuel costs for the most part, are housed in either the public works and/or fleet budgets and not in the PD budgets of most peer communities to include Vail PD, Telluride MO, Silverthorne PD, Steamboat Springs PD, Aspen PD. Breckenridge PD, Snowmass Village and Frisco PD. I would like to complement Finance Director Scott Wright and his staff for their budget information on the Town of Avon Website. In my research, the Town of Avon budget documents and information are the most comprehensive and easy to access of all of the peer communities. In many instances there are not individual department budgets available and no detailed individual line items. Thank you, Chief Greg Daly ### 970.748.4004 eric@avon.org TO: Honorable Mayor Smith Hymes and Council FROM: Eric Heil, Town Manager RE: Support Letter for SHRED Act DATE: June 17, 2021 SUMMARY: A Letter of Support for the SHRED Act is attached to this Report. Currently, ski area permit fees generate approximately $39 million in revenues, which all goes the United States Treasury. The SHRED Act would increase the retainage of these ski area permit fees to 60-75% to be used to support winter recreation, wildfire response, and broader recreation needs in the ski area regions. Please see the attached information page from Senator Michael Bennet’s office. The Town of Avon currently partners with Eagle County and other municipalities in Eagle County to support two additional Forest Service ranger positions for the summer. We have recognized needs to improve U.S. Forest Service roads, trails, and trailhead parking areas to accommodate the increased visitor traffic that comes to enjoy our surrounding national lands. As stated in the draft Letter of Support, retention of the revenues generated from ski area permit fees will better enable federal management of these lands. PROPOSED MOTION: “I move to approve the Letter of Support for the SHRED Act.” Thank you, Eric ATTACHMENT A: DRAFT Letter of Support ATTACHMENT B: SHRED Act information sheet Post Office Box 975 100 Mikaela Way Avon, CO 81620 NAME ADDRESS ADDRESS June 17, 2021 RE: Support for the SHRED Act Dear Senator Bennet and Senator Barrasso, The Town of Avon strongly supports the SHRED Act to keep ski area permit fees local, support winter recreation and address broad recreation needs. Avon, like many of our mountain town resort peer communities, host a larger number of visitors each year who come to recreate in our surrounding national forests. For many, the opportunity to visit these lands and recreate in the Rocky Mountains creates life-time memories, and we are glad to host these visitors. However, the impacts from increased recreation demands on our national forests far exceed the federal resources allocated to manage such demands. Yet, there is a steady outflow of important ski area permit fee revenues from the Rocky Montain region. The SHRED Act will move us towards a more business like land management practice where a greater portion of the revenues will be re-invested into necessary land management and mitigation measures. We support a sustainable, business-like model that will enable the federal government to maintain these valuable recreational lands for the benefit of our generation and generations to come. We strongly support the SHRED Act. Below are quotes from Ski Country Industry Leaders. Thank you for your consideration. Sincerely, Mayor Sarah Smith Hymes Signing with the support of the full Town Council: Mayor Pro Tem Amy Phillips, Councilor Tamra Underwood, Councilor Chico Thuon, Councilor Scott Prince, Councilor Lindsay Hardy, Councilor Russell Andrade and Mayor Sarah Smith Hymes SUPPORT FROM SKI COUNTRY INDUSTRY LEADERS: “Ski areas across the country appreciate Senator Bennet’s leadership in the Senate and unwavering support for outdoor recreation. Retaining a portion of ski area permit fees with the Forest Service will help boost the agency’s recreation capacity, improve visitor services and expand access to our nation’s forests for all Americans,” said Kelly Pawlak, President/CEO, National Ski Areas Association. ATTACHMENT A: Draft Letter of Support “What the bill’s Ski Area Fee Retention Account does for ski areas is a solid model for all facilitated recreation experiences. Outdoor recreation permit fees should be reallocated at the site, should be used to improve and enhance facilitated recreation experiences, and should be made available to help other sites address recreation programming needs that may not have the resources necessary at the local level,” said Aaron Bannon, executive director of America Outdoors. “The SHRED Act will bring much-needed resources to the United States Forest Service to address the needs of not only ski areas, but the broader recreation management needs of the public lands on which ski town economies are so dependent. This Act will offer ongoing support to the public lands that are so critical to the recreation-based economies of resort communities,” said Margaret Bowes, Executive Director, Colorado Association of Ski Towns. “This bill is not only critical to maintaining the active management of our national forests by providing much needed support to the United States Forest Service, but it also greatly aids in the sustainability and vibrancy of our mountain communities and local recreational opportunities. By allowing local national forests to retain the fees generated from the ski areas in which they originate, forest managers are better equipped to address the many impacts creating a crisis in our forests. Northwest Colorado Council of Governments fully supports the 2021 SHRED Act as drafted and is hopeful its implementation will provide our local United States Forest Service with the overdue and necessary support imperative for its operations to run successfully and efficiently for decades to come,” said Alyssa Shenk, Northwest Colorado Council of Governments Council Chair. ATTACHMENT A: Draft Letter of Support Ski Hill Resources for Economic Development (SHRED) Act Senator Bennet and Senator Barrasso Skiing is a vital component of our outdoor recreation economy, contributing over $55 billion annually and supporting over 500,000 jobs. Downhill skiing and snowboarding occurs at the 122 ski areas that operate on U.S. Forest Service land across the country. In exchange for the opportunity to use some of our nation’s most stunning forestlands, ski areas pay fees to the Forest Service that average $39 million annually. However, under the current system, these fees go directly to the United States Treasury, rather than the local National Forest. The SHRED Act aims to change that, establishing a framework to retain ski fees to support local ski permit and program administration and offset increased recreational use, while providing the Forest Service flexibility to direct resources where they are needed most. Specifically, the SHRED Act would: • Keep Ski Fees Local: By establishing a Ski Area Fee Retention Account to retain a portion of the fees that ski areas pay to the Forest Service. For National Forests that receive less than $15 million in ski fees annually, 75 percent of the fees are retained. For forests that receive more than $15 million in ski fees annually, 60 percent of the ski fees would be retained. The retained funds are available for authorized uses (described below) at the local National Forest. • Support Winter Recreation: In each forest, 75 percent of the retained funds are directly available to support Forest Service Ski Area Program and permitting needs, process proposals for improvement projects, train staff, and prepare for wildfire. Any excess funds can be directed to other National Forests that host ski areas for the same uses. After all of the winter recreation uses have been addressed across the country, excess funds are carried over to the pot of funding that supports broad recreation needs. • Address Broad Recreation Needs: In each forest, 25 percent of the retained funds are available to support a broad set of local recreation management and community needs, including special use permit administration, visitor services, trailhead improvements, facility maintenance, and affordable workforce housing. This set-aside would dramatically increase some Forest Service unit’s budgets to meet the growing visitation and demand for outdoor recreation. The SHRED Act is supported by National Ski Area Association and its 122 member ski areas operating on public lands, Northwest Colorado Council of Governments, Colorado Ski Country USA, Colorado Association of Ski Towns, America Outdoors Association, Vail Resorts, and Jackson Hole Mountain Resort. ATTACHMENT B: SHRED Act Info Sheet Recreation Department Update June 22, 2021 RECREATION DEPARTMENT UPDATE JUNE 22, 2021 MICHAEL LABAGH, INTERIM RECREATION DIRECTOR Recreation Department Update June 22, 2021 RECREATION CENTER OPERATIONS •Mask requirement amended May 19 •Followed transition plan to phase out of COVID-19 policies and procedures •Lasting factors: Increased cleaning efforts, lap swimming reservations, spacing and layout of equipment, staff cross training •475 new memberships since January 1, 2021 •Average daily visits Jan 1-May 31: 258 Recreation Department Update June 22, 2021 RECREATION PROGRAMS •Outdoor Fitness Classes •Summer Camp •Swim Lessons & Swim Team •Recreation Swim Meet •Drop-In Open Water Swim •Dunk-N-Dash •Daddy’s Girl TuTu 2K •Open Water Swim Meet Recreation Department Update June 22, 2021 HARRY A. NOTTINGHAM PARK •Park signage inventory and update •Picnic shelter reservations •SUPCO and beach operations •Musical instrument installations •West Nottingham Park landscaping project •Sod installation upper and lower fields Beach/Park Planning Process to be introduced to Council at July 13, 2021 meeting Recreation Department Update June 22, 2021 PERSONNEL •Operating with 7/10 full-time staff and 70 part-time staff •Interim roles overview Hiring Timeline: •Recreation Services Superintendent •Recreation Services Coordinator •Recreation Director (timing to be discussed with Council at July 13th meeting) Recreation Department Update June 22, 2021 PERSONNEL •70 part-time staff •Several local businesses starting wages $16-$17 per hour •Currently reviewing our ability to raise starting rate to $17/h Recreation Department Update June 22, 2021 ELECTRIC VEHICLE RENTAL PROGRAM Avon Recreation Center will provide two one-day passes as an EV rental incentive at a retail value of $30.00.This partnership will not only encourage EV use and reduce carbon emissions, but it will also showcase one of Avon’s flagship amenities, the Avon Recreation Center. Recreation Department Update June 22, 2021 THANK YOU! 970.748.4004 eric@avon.org TO: Honorable Mayor Smith Hymes and Council FROM: Eric Heil, Town Manager RE: Climate Action Collaborative Memorandum of Understanding DATE: June 18, 2021 SUMMARY: The Climate Action Collaborative (“CAC”) has proposed the formation of a governing board. The original Letter of Intent to Join the Climate Action Collaborative contemplated that the members of the CAC would outline organizational components of the CAC through the adoption of a Memorandum of Understanding. Eagle County led discussions on the adoption of a governing board which is comprised of representatives from the County and participating municipalities in Eagle County. The attached Memorandum of Understand would establish a CAC Governing Board. There is no financial obligation or legal commitment that is created by the adoption of this Memorandum of Understanding. The Memorandum of Understanding contemplates that each member would designate one elected official and one alternate to serve as each entity’s representative on the governing body. Mayor Sarah Smith Hymes has expressed interest in serving as the designated election official. I am willing to serve as the alternative, which would be consistent with my involvement in Climate Action Collaborative efforts on behalf of the Town. This Memorandum of Understanding can be approved by a simple majority vote of the Avon Town Council. RECOMMENDATION: Adoption of this Memorandum of Understanding supports the Avon Town Council’s identified goal to support and implement climate action efforts. PROPOSED MOTION: “I move to approve the Memorandum of Understanding by the Local Government Members of the Climate Action Collaborative for the Eagle County Community.” “I move to designate Mayor Sarah Smith Hymes as the primary representative and Town Manager Eric Heil as the designated alternate for the Town of Avon on the CAC Governing Board.” Thank you, Eric ATTACHMENT A: Memorandum of Understanding MOU for the CAC Governing Board June 22, 2021 Page 1 of 3 MEMORANDUM OF UNDERSTANDING BETWEEN THE LOCAL GOVERNMENT MEMBERS OF THE CLIMATE ACTION COLLABORATIVE FOR THE EAGLE COUNTY COMMUNITY WHEREAS, several local government entities in Eagle County, Colorado, established and joined the Climate Action Collaborative (“CAC”) to reduce greenhouse gas (“GHG”) emissions in accordance with the goals of the Climate Action Plan for the Eagle County Community (“CAP”) as adopted and as may be amended from time to time; and, WHEREAS, a 2017 Letter of Intent to Join The Climate Action Collaborative of the Eagle County Community (“Letter of Intent”) states that the collaborative group will work to outline the organizational components of the CAC and will create a Memorandum of Understanding establishing the CAC and outlining the organizational components of the CAC; and, WHEREAS, local government members of the CAC find that global GHG emissions continue to catalyze global climate change and global temperature increase and that such global temperature increase is projected to result in severe negative effects on habitability, production and resiliency of the global community; and, WHEREAS, the local government members of the CAC recognize the need and benefit to understand and implement best practices to reduce GHG emissions and draw down carbon levels in the atmosphere at the local and regional level, and therefore desire to define an organizational structure which will facilitate regional decision making and alignment of CAC policies; and, WHEREAS, the local government members who financially contribute to the CAC desire to establish and adopt this Memorandum of Understanding (“MOU”) to define the organizational structure; NOW, THEREFORE, the local government entities who are signatories to this MOU establish the following organizational structure for the CAC: 1. CLIMATE ACTION COLLABORATIVE GOVERNING BOARD: A governing board of the CAC is established which shall be referred to as the “CAC Governing Board”. 2. MEMBERSHIP: The CAC Governing Board shall comprise the eligible local government entities situated within Eagle County who sign this MOU. 3. QUALIFICATION OF MEMBERS: To be an eligible local government entity, members of the CAC Governing Body shall meet the following minimum qualifications: (a) municipal and county government entities legally formed in accordance with the laws of Colorado; (b) with boundaries that are wholly or partially within Eagle County; (c) with a governing body that is subject to election by qualified voters as defined in Colorado law; ATTACHMENT A: Memorandum of Understanding MOU for the CAC Governing Board June 22, 2021 Page 2 of 3 (d) who have formally adopted the CAP; and (e) who financially contribute to the CAC in accordance with requirements for financial contributions as established by the CAC Governing Board, as may be amended from time to time. 4. ADDITIONAL MEMBERSHIP: Additional members shall be included on the CAC Governing Body upon receipt of a written request to join the CAC Governing Body by a local government entity who meets the qualifications of membership. 5. REMOVAL OF MEMBERSHIP: The CAC Governing Board may remove any CAC Governing Board member who ceases to meet the minimum qualifications after providing notice to such CAC Governing Board member and stating the reasons that such CAC Governing Board member ceases to meet the minimum qualifications. Those members ceasing to meet the minimum qualification will be provided fifteen (15) days to bring themselves into compliance with minimum qualifications prior to removal from membership. 6. REPRESENTATION: Each qualified member of the CAC Governing Board shall have one voting seat on the CAC Governing Board. Each qualified member of the CAC Governing Board shall appoint a representative who shall be an elected representative of the governing body of the qualified member, and an alternate representative who shall be either an elected official of the governing body of the qualified member or a staff person of such qualified member. The designation of representatives by each qualified member shall be in writing in a manner determined by each respective qualified member and shall be updated from time to time. 7. QUORUM: Quorum shall consist of a majority plus one of the total membership of the CAC Governing Board. In the absence of a quorum, a lesser number may adjourn any meeting to a later time and date. 8. OFFICERS: The CAC Governing Board shall appoint a Chairperson and Co-Chairperson who shall serve as the meeting moderator for meetings of the CAC Governing Board. The duties of the Chairperson, Co-Chairperson and any other Officer positions that may be established shall be further defined in future bylaws to be adopted by the CAC. 9. MEETINGS: The CAC Governing Board shall meet at such time, place, and frequency as is determined appropriate by the CAC Governing Board. The method of calling a meeting and the types of meetings allowed (i.e. in person, electronically, etc.) will be further defined in future bylaws to be adopted by the CAC. 10. DUTIES: The CAC Governing Board shall have the following duties: (a) Prepare and adopt an annual budget and funding mechanisms; (b) Prepare and adopt annual goals; (c) Review and approve contracts for services; and ATTACHMENT A: Memorandum of Understanding MOU for the CAC Governing Board June 22, 2021 Page 3 of 3 (d) Adopt bylaws and other policies as appropriate to achieve the goals of the CAP. 11. VOTING: All decisions of the CAC Governing Board shall be approved by a 3/4ths affirmative vote of the quorum present or as otherwise set forth in the future bylaws to be adopted by the CAC. 12. NO LEGAL OR FINANCIAL OBLIGATIONS: This MOU shall not create any legal obligation for any member local government entity and shall not create any multi-year financial obligation that exceeds the annual financial contribution to the CAC that is approved by each qualified member. THIS MEMORANDUM OF UNDERSTANDING IS HEREBY APPROVED AND EXECUTED BY THE FOLLOWING LOCAL GOVERNMENT ENTITIES: TOWN OF AVON BY:___________________________________________ DATE:________________ Sarah Smith Hymes, Mayor ATTEST:______________________________________ Brenda Torres, Town Clerk ATTACHMENT A: Memorandum of Understanding 970-376-2876 epd@piercedurancelaw.com TO: Honorable Mayor Smith Hymes and Council members FROM: Elizabeth Pierce-Durance, Prosecutor RE: Ordinance 21-08, Adoption of the 2020 Model Traffic Code DATE: June 11, 2021 SUMMARY: Ordinance 21-08 adopts the 2020 Model Traffic code (“MTC”) by reference. Currently the Avon Municipal Code incorporates by reference the 2010 Model Traffic Code, which is not the most recent version. The Avon Police Department, the Town Prosecutor, and the Avon Municipal Court desire adoption of the 2020 Model Traffic Code. On August 14, 2018, the Town adopted Ordinance 18-16, implementing C.R.S. § 42-4-1412(5) regarding the regulation of bicycles approaching roadway intersections. Adoption of the 2020 MTC will not alter or affect this ordinance. On May 25, 2021, the Town adopted Ordinance 21-07, adding a new Chapter 10.40 to the Avon Municipal Code regulating the use of Off-Highway Vehicles in Avon. Adoption of the 2020 MTC will not alter or affect this ordinance. CHANGES AND AMENDMENTS: Ordinance 21-08 repeals, reorders, replaces, and updates Avon Municipal Code sections 10.04.010, 10.04.040, and 10.04.060 through 10.04.180. Many changes are simply to update cross-references to the MTC. Consideration was given to issues recognized by other municipalities. The Colorado Department of Transportation did not provide a Word version of the 2010 Model Traffic Code marked up to show changes from the 2010 MTC. Those changes are noted instead in Appendix 1, provided with this Memorandum. Specific changes to the Avon Municipal Code are as follows: MTC Sec. 107.5 – Obedience to members of the fire department. This enactment continues existing Town policy, as recommended by Avon Police. The language is moved from MTC Section 111 to Section 107.5 because the 2020 MTC has filled in the previously blank Section 111. The fire department obedience language follows a similar provision requiring obedience to police officers. MTC Sec. 706(1) – Obedience to railroad signal. This amendment continues existing policy. MTC Sec. 712(3) – Driving in highway work area. This enactment reinstalls 2010 MTC language, which language was deleted from the 2020 MTC, permitting highway flaggers to work within any highway maintenance or construction work area. This continuation of existing policy is recommended by Avon Police. MTC Sec. 1214 – Parking on private property. This enactment authorizes signage regarding booting and towing on private property within the Town of Avon, which signage is required by Section 5.12.100(4) of the Avon Municipal Code. This language continues existing policy. MTC Sec. 1417 – School zones. This enactment doubles fines for traffic violations occurring within school zones, now designated “School Safety Sensitive Zones,” continuing existing policy. 970-376-2876 epd@piercedurancelaw.com MTC Sec. 1418 – Residential areas. This enactment doubles fines for traffic violations occurring in designated residential areas, now designated “Residential Area Safety Sensitive Zones,” continuing existing policy except that the designated areas are increased to include the Wildwood Subdivision, and parts of Swift Gulch Road, East Beaver Creek Blvd, Post Blvd, and Nottingham Road. These additional areas are based on Avon Police recommendation. MTC Sec. 1419 – Driving on public park. This enactment continues existing policy. MTC Sec 1701, 1705, and 1707 – These penalty sections are inapplicable to municipalities1 and are deleted in full. Penalties for municipal violations are instead set out in Avon Municipal Code Section 10.04.040 as amended. The amendments eliminate the classification of violations into A or B, and set out two categories of violation only, i.e. traffic offense and traffic infraction. Only traffic offenses constitute misdemeanors and are eligible for jury trials and jail sentences. Traffic infractions are punishable by fines only, which fines shall be scheduled by the Municipal Court. MTC Sec. 1709(5.5) and (6) – Penalty assessment notice. This enactment continues existing policy. MTC Sec. 1801 – Authority to impound vehicles. This amendment continues existing policy. MTC Sec. 1903(6)(c) – School buses. This enactment continues existing policy. PROCEDURE FOR ADOPTION BY REFERENCE OF A MODEL CODE: Pursuant to the Avon Charter Section 6.9 and C.R.S. § 31-16-201 et seq., the Town may enact an ordinance which adopts a state code by reference. In addition to regular notice requirements, publication of the ordinance shall contain a summary of the subject matter of the ordinance, the penalty clause and a notice to the public that copies of the proposed ordinance and proposed code are available at the office of the Town Clerk. Avon Charter, §6.5(g). Copies of the MTC are being provided to the Avon Town Council members electronically prior to the meeting to avoid the requirement to read the entire code at the Council meeting. C.R.S. § 31-16-203 and § 31-16-107. The penalties must be written out in full and published in the adopting ordinance. C.R.S. § 31-16-204. After passage of the adopting ordinance, it must be posted in accordance with the Town Charter §§ 6.7 and 6.9. Once adopted by the Town Council, the officer who will be enforcing the ordinance may keep a copy of the MTC in his or her office instead of the Town Clerk’s office and this custodian must keep a reasonable supply of the code for purchase. C.R.S. § 31-16-206. FINANCIAL CONSIDERATIONS: Adoption of the 2020 MTC will have no identifiable financial impact. RECOMMENDATION: Staff recommend adoption on second reading of Ordinance 21-08 Adoption of the 2020 Model Traffic Code. PROPOSED MOTION: I move to approve on Second Reading Ordinance 21-08, adopting the 2020 Model Traffic Code by reference for use within the Town of Avon. ATTACHMENTS: Appendix I: A listing of 2020 MTC changes to 2010 MTC Attachment A: Ordinance 21-08 Thank you, Elizabeth Pierce-Durance. 1 See Section 42-4-110(2), Colorado Revised Statutes. - 1 - APPENDIX I to Council Memo, Ordinance 21-08 The following information is an overview of new, deleted or amended language appearing in the 2020 Model Traffic Code (“MTC”). This overview is provided as a guide to some of the more substantial changes appearing in the MTC, which Code is recommended for adoption by the attached ordinance. This Index of Changes identifies the affected 2020 MTC Section and how it differs from the 2010 MTC currently in use by the Town. INDEX OF CHANGES Forward. Entire section added. Section 106. Text added (paras 4.5(b)-7). Section 107. Text added (second sentence). Section 109(13)(b). Offense changed to infraction. Section 109.5. Text added (para 1(b)). Section 109.6(1). Speed limit changed (35 mph to 45 mph). Section 110. Text added (final sentence to (1); all of (1)(a)- (6)(b)). Section 110.5. Entire section added. Section 111. Entire section added. Section 202. Text added (para 4(a)-(g)). Section 215.5. Repealed entirely. Section 221. Text added (para (9)-(11)) Section 227. Text added (paras (1)(a)(II) and (III)). Section 232. Text added (paras(1)(b) and (2)). Section 235. Text added ((2)(b)(IV)). Section 235. Text added ((4)(a)(I)-(II)). Section 236. Text deleted ((1)(a.3) and (a.7), (9)); text added ((1)(a.8)-(3)) Section 239. Text amended (3); text added (5.5) Sections 241 and 242. Entire sections added. Section 504(a). Text amended. Section 508. Text amended ((1)-(1.5); text added (2)-(4)). Section 510. Text added ((8)-(12)). Section 703. Text added ((3)(b)(II) and (III)). Section 712. Text deleted ((3)). Section 1007. Text added ((2) and (3)). Section 1102. Text amended ((4)). Section 1203. Entire section added. Section 1206. Text added ((3)-(5)). Section 1208. Substantial revision, whole section. Section 1213. Entire section added. Section 1409. Text added (8.5); text amended ((9)). Section 1410.5. Entire section added. Section 1412. Text added ((14)-(15)). Section 1416. Entire section added. - 2 - Section 1705. Entire section added. Section 1707. Entire section added. Section 1718. Entire section added. Section 1719. Entire section added. Appendices: Definitions added. - 3 - FORWARD Because of the significant mobility of today’s traffic and the influx of motorists from many areas, every driver has a right to expect the rules governing the movement of vehicles and pedestrians on streets and highways are clearly defined and reasonably uniform throughout the state and the nation. The General Assembly of the State of Colorado has recognized that conflicts between the state’s traffic laws and municipal traffic ordinances lead to inconsistencies in the movement of traffic and has strengthened the requirements for uniformity of traffic regulations in the following terms: “This article constitutes the uniform traffic code throughout the state and in all political subdivisions and municipalities therein”. (Source: 42- 4-110 (1), C.R.S.) “All local authorities may, in the manner prescribed in article 16 of title 31, C.R.S., or in article 15 of title 30, C.R.S., adopt by reference all or any part of a model traffic code which embodies the rules of the road and vehicle requirements set forth in this article and such other additional regulations as are provided for in section 42-4-111; except that, in the case of state highways, any such additional regulations shall have the approval of the department of transportation”. (Source: 42-4-110 (1)(b), C.R.S.) “No local authority shall adopt, enact, or enforce on any street which is a state highway any ordinance, rule, or resolution which alters or changes the meaning of the ‘rules of the road’ or is otherwise in conflict with the provisions of this article. For the purpose of this section, the ‘rules of the road’ shall be construed to mean any of the regulations on the operation of vehicles set forth in this article which drivers throughout the state are required to obey without the benefit or necessity of official traffic control devices as declared in section 42-4-603 (2).” (Source: 42- 4- 110(1)(c), C.R.S.) These provisions leave little doubt that the basic driving rules are expected to be uniform statewide for the protection of Colorado drivers and pedestrians. If state laws and local government traffic codes are to serve their purpose they must complement one another and be given the widest possible publicity as companion documents. The National Committee on Uniform Traffic Laws and Ordinances points out that it is not the proper purpose of traffic legislation to impose unnecessary or unreasonable restrictions on street or highway traffic, but to ensure, as far as this can be done by law and its enforcement, that traffic shall move smoothly, efficiently and safely; that no legitimate user of the street or highway, whether in a vehicle or on foot, shall be killed, injured or frustrated in such use by the improper behavior of others. Through the cooperative efforts of both state and local governments, the “Model Traffic Code for Colorado” has been developed to make available a specimen set of motor vehicle and traffic regulations that track state law. - 4 - Section 42-4-105, C.R.S., states that all traffic control devices placed or maintained by local authorities shall conform to the most recent edition of the federal “Manual on Uniform Traffic Control Devices” (MUTCD) and the state supplement thereto. Traffic regulatory areas preempted by state law have not been made part of the Code. Local governments are urged to bring their traffic ordinances into harmony with the current Code. Local governments that adopt the Code by reference are cautioned not to make any changes or additions which are in conflict with state law. However, the adopting local governments are at liberty to delete any parts, articles, or sections which are deemed to be inapplicable. A specimen ordinance and specimen public notices for adopting the Code by reference will be found in the Appendix. The following official state documents work in tandem to provide a uniform system of traffic regulation and accepted traffic engineering practices for greater operational efficiency and safety: • Colorado Revised Statutes (C.R.S.), Title 42, Article 4 - Uniform traffic code for the State of Colorado. Updated periodically to correlate with national model legislation. • Model Traffic Code for Colorado – Model ordinance embodies provisions of Colorado Law applicable to driving in municipalities and counties in a form that can be adopted by reference. • Colorado Drivers Manual – Drivers’ handbooks authorized by Colorado statute. Issued by the Colorado Department of Revenue (Division of Motor Vehicles). Traffic control text and illustrations developed by the Colorado Department of Transportation. • Manual on Uniform Traffic Control Devices (MUTCD) – Manual of Federal Highway Administration approved traffic control devices. Updated periodically and adopted by the Transportation Commission as required by Colorado Law. 106. Who may restrict right to use highways. (4.5) (b) (I) A person who operates a motor vehicle or vehicle combination over thirty- five feet in length on state highway 82 between mile markers 47 and 72 in violation of a closure under paragraph (a) of this subsection (4.5) is subject to an enhanced penalty as set forth in section 1701 (4) (a) (I) (F). (II) A person who operates a motor vehicle or vehicle combination over thirty-five feet in length on state highway 82 between mile markers 47 and 72 in violation of a closure under paragraph (a) of this subsection (4.5) where the result of the violation is an incident that causes the closure of a travel lane in one or both directions, is subject to an enhanced penalty as set forth - 5 - in section 1701 (4)(a)(I)(F). (6)(a) Local authorities may, within their respective jurisdictions, for the purpose of road construction and maintenance, temporarily close to through traffic or to all vehicular traffic any highway or portion thereof for a period not to exceed a specified number of workdays for project completion and shall, in conjunction with any such road closure, establish appropriate detours or provide for an alternative routing of the traffic affected when, in the opinion of concerned local authorities, as evidenced by resolution or ordinance, such temporary closing of the highway or portion thereof and the rerouting of traffic is necessary for traffic safety and for the protection of work crews and road equipment. Such temporary closing of the highway or portion thereof and the routing of traffic along other roads shall not become effective until official traffic control devices are erected giving notice of the restrictions, and, when such devices are in place, no driver shall disobey the instructions or directions thereof. (b) Local authorities, within their respective jurisdictions, may provide for the temporary closing to vehicular traffic of any portion of a highway during a specified period of the day for the purpose of celebrations, parades, and special local events or civil functions when in the opinion of said authorities such temporary closing is necessary for the safety and protection of persons who are to use that portion of the highway during the temporary closing. (c) Local authorities shall enter in to agreements with one another for the establishment, signing and marking of appropriate detours and alternative routes which jointly affect local road systems and which are necessary to carry out the provisions of paragraphs (a) and (b) of this subsection (6). Any temporary closing of the street which is a state highway and any rerouting of state highway traffic shall have the approval of the department before such closing becomes effective. (7) A person who violates any provision of this section commits a class B traffic infraction. 107. Obedience to police officers. Any person who violates any provision of this section commits a class 2 misdemeanor traffic offense. 109. Low-power scooters, animals, skis, skates, and toy vehicles on highways (13)(b) Any person who violates subsection (6.5) of this section commits a class A traffic infraction. 109.5. Low-speed electric vehicles. (1)(b) Notwithstanding paragraph (a) of this subsection (1), a low-speed electric vehicle may be operated on a state highway that has a speed limit equal to forty miles per hour or cross a roadway with a speed limit equal to forty miles per hour to cross at-grade, if: (I) Such roadway's lane width is eleven feet or greater; (II) Such roadway provides two or more lanes in either direction; and (III)The Colorado department of transportation has determined, in consultation with local government and law enforcement, upon the basis of a traffic investigation, survey, appropriate design standards, or projected volumes, that the operation of a low-speed electric vehicle on the - 6 - roadway poses no substantial safety risk or hazard to motorists, bicyclists, pedestrians, or other persons. 109.6. Class B low-speed electric vehicles – effective date -rules (1) A class B low speed electric vehicle may be operated only on a roadway that has a speed limit equal to or less than forty-five miles per hour; except that it may be operated to directly cross a roadway that has a speed limit greater than forty-five miles per hour at an at- grade crossing to continue traveling along a roadway with a speed limit equal to or less than forty-five miles per hour. 110. Provisions uniform throughout jurisdiction. (1) All local authorities may enact and enforce traffic regulations on other roads and streets within their respective jurisdictions. All such regulations shall be subject to the following conditions and limitations: (a) All local governments may enact, adopt, or enforce traffic regulations which cover the same subject matter as the various sections of this Code or state law and such additional regulations as are included in section 111, except as otherwise stated in paragraphs (c ) to (e) (sic) of this subsection (1). (b) All local authorities may, in the manner prescribed in article 16 of title 31, C.R.S. or in article 15 of title 30, C.R.S., adopt by reference all or any part of a model traffic code which embodies the rules of the road and vehicle requirements set forth in this article and such additional regulations as are provided for in section 111; except that in the case of state highways, any such additional regulation shall have the approval of the department of transportation. (c) No local authority shall adopt, enact, or enforce on any street which is a state highway any ordinance, rule, or resolution which alters or changes the meaning of any of the “rules of the road” or is otherwise in conflict with the provisions of this article. For the purpose of this section, the “rules of the road” shall be construed to mean any of the regulations on the operation of vehicles set forth in this article which drivers throughout the state are required to obey without the benefit or necessity of official traffic control devices as declared in section 603(2) (d) In no event shall local authorities have the power to enact by ordinance regulations governing the driving of vehicles by persons under the influence of alcohol or of a controlled substance as defined in section 18-18-102(5), C.R.S., or under the influence of any other drug to a degree that renders any such person incapable of safely operating a vehicle, or whose ability to operate a vehicle is impaired by the consumption of alcohol or by the use of a controlled substance as defined in section 18-18-102(5), C.R.S., or any other drug, the registration of vehicles and the licensing of drivers, the duties and obligations of persons involved in traffic accidents, and vehicle equipment requirements in conflict with the provisions of this article; but said local authorities within their respective jurisdictions shall enforce the state laws pertaining to these subjects, and in every charge of violation the complaint shall specify the section of state law under which the charge is made and the state court having jurisdiction. (2) The municipal courts have jurisdiction over violations of traffic regulations enacted or adopted by municipalities. (3) No person convicted of or pleading guilty to a violation of a municipal traffic - 7 - ordinance shall be charged or tried in a state court for the same or similar offense. (4) (a) Any local government located within the program area of the AIR program area as defined in section 304 may adopt ordinances or resolutions pertaining to the enforcement of the emissions control inspection requirements set forth in section 310. (b) An officer coming upon an unattended vehicle in the program area which is in apparent violation of an ordinance or resolution adopted as authorized in paragraph (a) of this subsection (4) may place upon such a vehicle a penalty assessment notice indicating the offense and direction the owner or operator of such vehicle a penalty assessment notice indicating the offense and directing the owner or operator of such vehicle to remit the penalty assessment as set forth in such ordinance to the local jurisdiction in whose name the penalty assessment notice was issued. (c) The aggregate amount of fines, penalties, or forfeitures collected pursuant to ordinances or resolutions adopted as authorized in paragraph (a) of this subsection (4) shall be retained by the local jurisdiction in whose name such penalty notice was issued. (5) The general assembly declares that the adjudication of class A and class B traffic infractions through the county court magistrate system was not intended to create a conflict between the provisions of this article and municipal ordinances covering the same subject matter as this article nor was it intended to require or prohibit the decriminalization of municipal ordinances covering the same subject matter as this article. Municipalities may continue to enforce violations of such ordinances through municipal court even though similar state offenses are enforced through the magistrate system established under this article. (6) (a) The general assembly hereby finds that the use of automated driving systems will help people who may have difficulty driving, including people who are elderly and people with disabilities, gain access to goods and services essential to daily life. This access requires traveling across and in multiple jurisdictions. Therefore, the regulation of automated driving systems is a matter of statewide concern. (b) A state agency or a political subdivision of the state shall not adopt or enforce a policy, rule, or ordinance that sets standards for an automated driving system that are different from the standards set for a human driver. 110.5. Automated vehicle identification systems – definition. (1) The general assembly hereby finds and declares that the enforcement of traffic laws through the use of automated vehicle identification systems under this section is a matter of statewide concern and is an area in which uniform state standards are necessary. (1.5) Except as set out in (1.7), nothing in this section shall apply to a violation detected by an automated vehicle identification device for driving twenty-five miles per hour or more in excess of the reasonable and prudent speed or twenty-five miles per hour or more in excess of the maximum speed limit of seventy-five miles per hour detected by the use of an automated vehicle identification device. (1.7)(a) An automated vehicle identification system shall not be used under this subsection (1.7) unless maintenance, repair, or construction is occurring at the time the system is being used. (2) A local authority may adopt an ordinance authorizing the use of an automated vehicle identification system to detect violations of traffic regulations adopted by the municipality or the local authority may utilize an automated vehicle identification system to detect traffic violations - 8 - under state law, subject to the following conditions and limitations: (a) (I) (Deleted by amendment, L. 2002, p. 570, § 1, effective May 24, 2002. (II) If a local authority detects any alleged violation of a local traffic regulation or traffic violation under state law through the use of an automated vehicle identification system, then the state, county, city and county or municipality shall serve the penalty assessment notice or summons and complaint for a violation detected using an automated vehicle on the defendant no later than ninety days after the alleged violation occurred. If a penalty assessment notice or summons and complaint for a violation detected using an automated vehicle identification system is personally served, the state, a county, a city and county, or a municipality may only charge the actual costs of service of process that shall be no more than the amount usually charged for civil service of process. 111. Powers of Local Authorities. (1) Except as otherwise provided in subsection (2) of this section, this article does not prevent local authorities, with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power, from: a) Regulating or prohibiting the stopping, standing, or parking of vehicles, consistent with the provisions of this article; b) Establishing parking meter zones where it is determined upon the basis of an engineering and traffic investigation that the installation and operation of parking meetings is necessary to aid in the regulation and control of the parking of vehicles during the hours and on the days specified on parking meter signs; c) Regulating traffic by means of police officers or official traffic control devices, consistent with the provisions of this article; d) Regulating or prohibiting processions or assemblages on the highways, consistent with the provisions of this article; e) Designating particular highways or roadways for use by traffic moving in one direction, consistent with the provisions of this article; f) Designating any highway as a through highway or designating any intersection as a stop or yield intersection, consistent with the provisions of this article; g) Designating truck routes and restricting the use of highways, consistent with the provisions of this article; h) Regulating the operation of bicycles or electrical assisted bicycles and requiring the registration and licensing of same, including the requirement of a registration fee, consistent with the provisions of this article; i) Altering or establishing speed limits, consistent with the provisions of this article; j) Establishing speed limits for vehicles in public parks, consistent with the provisions of this article; k) Determining and designating streets, parts of streets, or specific lanes thereon upon which vehicular traffic shall proceed in one direction during one period and the opposite direction during another period of the day, consistent with the provisions of this article; l) Regulating or prohibiting the turning of vehicles, consistent with the - 9 - provisions of this article; m) Designating no-passing zones, consistent with the provisions of this article; n) Prohibiting or regulating the use of controlled-access roadways by nonmotorized traffic or other kinds of traffic, consistent with the provisions of this Code; o) Establishing minimum speed limits, consistent with the provisions of this Code; p) Designating hazardous railroad crossings, consistent with the provisions of this Code; q) Designating and regulating traffic on play streets, consistent with the provisions of this article; r) Prohibiting or restricting pedestrian crossing, consistent with the provisions of this Code; s) Regulating the movement of traffic at school crossings by official traffic control devices or by duly authorized school crossing guards, consistent with the provisions of the Code; t) Regulating persons propelling push carts; u) Regulating persons upon skates, coasters, sleds, or similar devices, consistent with the provisions of this Code; v) Adopting such temporary or experimental regulations as may be necessary to cover emergencies or special conditions; w) Adopting such other traffic regulations as are provided for by this article; x) Closing a street or portion thereof temporarily and establishing appropriate detours or an alternative routing for the traffic affected, consistent with the provisions of this article; y) Regulating the local movement of traffic or the use of local streets where such is not provided for in that article; z) Regulating the operation of low-powered scooters, consistent with the provisions of this article; except that local authorities shall be prohibited from establishing any requirements for the registration and licensing of low powered scooters; aa) Regulating the operation of low-speed electric vehicles, including, without limitation, establishing a safety inspection program, on streets and highways under their jurisdiction by resolution or ordinance of the governing body, if such regulation is consistent with this Code; bb) Authorizing and regulating the operation of golf cars on roadways by resolution or ordinance of the governing body, if the authorization or regulation is consistent with this title and does not authorize: (I) An unlicensed driver of a golf car to carry a passenger who is under twenty-one years of age; (II) Operation of a golf car by a person under sixteen years of age; or (III) Operation of a golf car on a state highway; except that the ordinance or resolution may authorize a person to drive a golf car directly across a state highway at an at- grade sidewalk, bike path, or pedestrian path consistent with section 42-4-117(I) and (3), C.R.S.; cc) Authorizing, prohibiting, or regulating the use of an EPAMD on a roadway, sidewalk, bike path, or pedestrian path consistent with section 117(1) and (3); - 10 - dd) Authorizing the use of the electrical motor on an electrical assisted bicycle on a bike or pedestrian path; ee) Enacting the idling standards in conformity with section 42-14-103, C.R.S. (2)(a) An ordinance or regulation enacted under paragraph (a), (b), (e), (f), (g), (i), (j), (k), (l), (m), (n ), (o), (p), (q), (r ), (v), (x), (y), (aa), or (cc) of subsection (1) of this section may not take effect until official signs or other traffic control devices conforming to standards as required by section 42-4-602, C.R.S., and giving notice of the local traffic regulations are placed upon or at the entrances to the highway or part thereof affected as may be most appropriate. (b) Subsection (1) of this section does not authorize a local authority to regulate or authorize the use of vehicles and motor vehicles on the state highway system that is subject to section 43- 2-135, C.R.S., except in at-grade crossings where the roadway subject to the local authority’s jurisdiction crosses the state highway. The local authority may regulate vehicles within such crossings only to the extent necessary to effect the local authority’s power to regulate the roadway under the local authority’s jurisdiction and only if the regulation or authorization does not interfere with the normal operation of the state highway. (3)(a) A board of county commissioners may by resolution authorize the use of designated portions of unimproved county roads within the unincorporated portion of the county for motor vehicles participating in timed endurance events and for such purposes shall make such regulations relating to the use of such roads and the operation of vehicles as are consistent with public safety in the conduct of such event and with the cooperation of county law enforcement officials. (b) Such resolution by a board of county commissioners and regulations based thereon shall designate the specific route which may be used in such event, the time limitations imposed upon such use, any necessary restrictions in the use of such route by persons not participating in such event, special regulations concerning the operation of vehicles while participating in such event in which case any provisions of this article to the contrary shall not apply to such event, and such requirements concerning the sponsorship of any such event as may be reasonably necessary to assure adequate responsibility therefor. 202. Unsafe vehicles – penalty – identification plates. (4)(a) Upon its approval, the department of revenue shall issue an identification plate for each vehicle, motor vehicle, trailer, or item of special mobile machinery, or similar implement of equipment, used in any type of construction business which shall, when said plate is affixed, exempt any such item of equipment, machinery, trailer, or vehicle from all or part of this section and sections 204 to 231 of this Code. (b) The department of revenue is authorized to promulgate written rules and regulations governing the application for, issuance of, and supervision, administration, and revocation of such identification plates and exemption authority and to prescribe the terms and conditions under which said plates may be issued for each item as set forth in paragraph (a) of this subsection (4), and the department of revenue, in so doing, shall consider the safety of users of the public streets and highways and the type, nature, and use of such items set forth in paragraph of this subsection (4) for which exemption is sought. (c) Each exempt item may be moved on the roads, streets, and highways during daylight - 11 - hours and at such time as vision is not less than five hundred feet. No cargo or supplies shall be hauled upon such exempt item except cargo and supplies used in normal operation of any such item. (d) The identification plate shall be of a size and type designated and approved by the department. A fee of one dollar shall be charged and collected by the department for the issuance of each such identification plate. All such fees so collected shall be paid to the state treasurer who shall credit the same to the highway users tax fund for allocation and expenditure as specified in section 43-4-205(5.5)(b), C.R.S. (e) Each such identification plate shall be issued for a calendar year. Application for such identification plates shall be made by the owner, and such plates shall be issued to the owner of each such item described in paragraph (a) of this subsection (4). Whenever the owner transfers, sells, or assigns the owner's interest therein, the exemption of such item shall expire and the owner shall remove the identification plate therefrom and forward the same to the department of revenue. (f) An owner shall report a lost or damaged identification plate to the department of revenue, and, upon application to and approval by the department of revenue, the department shall issue a replacement plate upon payment to it of a fee of fifty cents. (g) Notwithstanding the amount specified for any fee in this subsection (4), the executive director of the department of revenue by rule or as otherwise provided by law may reduce the amount of one or more of the fees if necessary pursuant to section 24-75-402(3), C.R.S., to reduce the uncommitted reserves of the fund to which all or any portion of one or more of the fees is credited. After the uncommitted reserves of the fund are sufficiently reduced, the executive director of the department of revenue by rule or as otherwise provided by law may increase the amount of one or more of the fees as provided in section 24-75-402(4), C.R.S. 215.5. Signal lamps and devices – street rod vehicles and custom motor vehicles. (1) As used in this section, unless the context otherwise requires: (a) “Blue dot tail light” means a red lamp installed in the rear of a motor vehicle containing a blue or purple insert that is not more than one inch in diameter. (b) Repealed. (2) A street rod vehicle or custom motor vehicle may use blue dot tail lights for stop lamps, rear turning indicator lamps, rear hazard lamps, and rear reflectors. Such lamps shall comply with all requirements provided in this Code other than color requirements. 221. Bicycle and personal mobility device equipment. (9)(a) On or after January 1, 2018, every manufacturer or distributor of new electrical assisted bicycles intended for sale or distribution in this state shall permanently affix to each electrical assisted bicycle, in a prominent location, a label that contains the classification number, top assisted speed, and motor wattage of the electrical assisted bicycle. The label must be printed in the Arial font in at least nine-point type. (b) A person shall not knowingly modify an electrical assisted bicycle so as to change the speed capability or motor engagement of the electrical assisted bicycle without also appropriately replacing, or causing to be replaced, the label indicating the classification required by subsection - 12 - (9)(a) of this section. (10) (a) An electrical assisted bicycle must comply with the equipment and manufacturing requirements for bicycles adopted by the United States consumer product safety commission and codified at 16 CFR 1512 or its successor regulation. (b) A class 2 electrical assisted bicycle must operate in a manner so that the electric motor is disengaged or ceases to function when the brakes are applied. Class 1 and class 3 electrical assisted bicycles must be equipped with a mechanism or circuit that cannot be bypassed and that causes the electric motor to disengage or cease to function when the rider stops pedaling. (c) A class 3 electrical assisted bicycle must be equipped with a speedometer that displays, in miles per hours, the speed the electrical assisted bicycle is traveling. 227. Windows unobstructed – certain materials prohibited – windshield wiper requirements (II) The provisions of this paragraph (a) shall not apply to the windows to the rear of the driver, including the rear window, on any motor vehicle; however, if such windows allow less than twenty-seven percent light transmittance, then the front side windows and the windshield on such vehicles shall allow seventy percent light transmittance. (III) A law enforcement vehicle may have its windows, except the windshield, treated in such a manner so as to allow less than twenty-seven percent light transmittance only for the purpose of providing a valid law enforcement service. A law enforcement vehicle with such window treatment shall not be used for any traffic law enforcement operations, including operations concerning any offense in this article. For purposes of this subparagraph (III), “law enforcement vehicle” means a vehicle owned or leased by a state or local law enforcement agency. The treatment of the windshield of a law enforcement vehicle is subject to the limits described in paragraph (b) of this subsection (1). 232. Minimum safety standards for motorcycles and low-power scooters (1)(b) A person driving or riding a motorcycle need not wear eye protection if the motorcycle has: (I) Three wheels; (II) A maximum design speed of twenty-five miles per hour or less; (III) A windshield; and (IV) Seat belts. (2) The department shall adopt standards and specifications for the design of goggles and eyeglasses. 235. Minimum standards for commercial vehicles – repeal (2)(b)(IV) This section does not apply to a motor vehicle or motor vehicle and trailer combination: (A) With a gross vehicle weight, gross vehicle weight rating, or gross combination rating - 13 - of less than twenty-six thousand one pounds; (B) Not operated in interstate commerce; (C) Not transporting hazardous materials requiring placarding; (D) Not transporting either sixteen or more passengers including the driver or eight or more passengers for compensation; and (E) If the motor vehicle or combination is being used solely for agricultural purposes. (4)(a)(I) The chief of the Colorado state patrol shall adopt rules for the operation of all commercial vehicles and, as specified in subsection (4)(a)(II) of this section, vehicles that would be commercial vehicles but for the fact that they have a manufacturer’s gross vehicle weight rating or gross combination rating of ten thousand one pounds or more but not more than sixteen thousand pounds. In adopting such rules, the chief shall use as general guidelines the standards contained in the current rules and regulations of the United States department of transportation relating to safety regulations, qualifications of drivers, driving of motor vehicles, parts and accessories, notification and reporting of accidents, hours of service of drivers, inspection, repair and maintenance of motor vehicles, financial responsibility, insurance, and employee safety and health standards; except that rules regarding financial responsibility and insurance do not apply to a commercial vehicle as defined in subsection (1) of this section that is also subject to regulation by the public utilities commission under article 10.1 of title 40, C.R.S. On and after September 1, 2003, all commercial vehicle safety inspections conducted to determine compliance with rules promulgated by the chief pursuant to this paragraph (a) must be performed by an enforcement official, as defined in section 42-20-103(2), C.R.S., who has been certified by the commercial vehicle safety alliance, or any successor organization thereto, to perform level I inspections. (II) With respect to the operation of all vehicles that would be commercial vehicles but for the fact that they have a manufacturer’s gross vehicle weight rating or gross combination rating of ten thousand one pounds or more but not more than sixteen thousand pounds, the chief of the Colorado state patrol may adopt rules that authorize the Colorado state patrol to: (A) Annually inspect these vehicles; (B) Enforce with respect to these vehicles all requirements for the securing of loads that apply to commercial vehicles; and (C) Enforce with respect to these vehicles all requirements relating to the use of coupling devices for commercial vehicles. (4)(b) The Colorado public utilities commission may enforce safety rules of the chief of the Colorado state patrol governing commercial vehicles described in subparagraphs (I) and (II) of paragraph (a) of subsection (1) of this section pursuant to his or her authority to regulate motor carriers, as defined in section 40-10.1-101, C.R.S., including the issuance of civil penalties for violations of such rules as provided in section 40-7-113, C.R.S. 236. Safety belt systems- mandatory use- exemptions -penalty (1)(a.3) “Child booster seat” means a child passenger restraint system that meets the federal motor vehicle safety standards set forth in section 49 CFR 571.213, as amended, that is designed to elevate a child to properly sit in a federally approved safety belt system. - 14 - (a.7) “Child safety belt-positioning device” means a device that positions a safety belt around a child in a manner that safely restrains such child in a seating position that conforms to all applicable federal motor vehicle safety standards. (1) (a.8) "Motor vehicle" means a passenger car; a pickup truck; or a van, minivan, or sport utility vehicle with a gross vehicle weight rating of less than ten thousand pounds. "Motor vehicle" does not include motorcycles that are not autocycles, low-power scooters, motorscooters, motorbicycles, motorized bicycles, and farm tractors and implements of husbandry designed primarily or exclusively for use in agricultural operations. (2) (a) (I) Unless exempted pursuant to subsection (3) of this section, and except as otherwise provided in subparagraphs (II) and (III) of this paragraph (a), every child who is under eight years of age and who is being transported in this state in a motor vehicle or in a vehicle operated by a child care center, shall be properly restrained in a child restraint system according to the manufacturer’s instructions: (II) If the child is less than one year of age and weighs less than twenty pounds, the child shall be properly restrained in a rear-facing child restraint system in a rear seat of the vehicle. (III) If the child is one year of age or older, but less than four years of age, and weighs less than forty pounds, but at least twenty pounds, the child shall be properly restrained in a rear- facing or forward- facing child restraint system. (b) Unless excepted pursuant to subsection (3) of this section, every child, who is at least eight years of age but less than sixteen years of age who is being transported in this state in a motor vehicle or in a vehicle operated by a child care center, shall be properly restrained in a safety belt or child restraint system according to the manufacturer's instructions. (c) If a parent is in the motor vehicle, it is the responsibility of the parent to ensure that his or her child or children are provided with and that they properly use a child restraint system or safety belt system. If a parent is not in the motor vehicle, it is the responsibility of the driver transporting a child or children, subject to the requirements of this section, to ensure that such children are provided with and that they properly use a child restraint system or safety belt system. (3) Except as provided in section 42-2-105.5(4), C.R.S., the requirements of subsection (2) of this section shall not apply to a child who: (a) Is being transported in a motor vehicle that is operated in the business of transporting persons for compensation or hire by or on behalf of a common carrier or a contract carrier as those terms are defined in section 40-10.1-101, C.R.S., or an operator of a luxury limousine service as defined in section 40-10.1-301, C.R.S. (9) No driver in a motor vehicle shall be cited for a violation of subparagraph (I) of paragraph (b) of subsection (2) of this section unless such driver was stopped by a law enforcement officer for an alleged violation of Codes 1 to 4 of this title other than a violation of this section or section 237. 239. Misuse of a wireless telephone – definitions – penalty – preemption - 15 - (3) A person shall not use a wireless telephone for the purpose of engaging in text messaging or other similar forms of manual data entry or transmission while operating a motor vehicle. (5.5) (a) Except as provided in subsections (5.5)(b) and (5.5)(c) of this section, a person who operates a motor vehicle in violation of subsection (3) of this section commits a class 2 misdemeanor traffic offense, and the court or the department shall assess a fine of three hundred dollars. (b) If the person’s actions are the proximate cause of bodily injury to another, the person commits a class 1 misdemeanor traffic offense and shall be punished as provided in section 42-4- 1701(3)(a)(II), C.R.S. (c) If the person’s actions are the proximate cause of death to another, the person commits a class 1 misdemeanor traffic offense and shall be punished as provided in section 42-4- 1701(3)(a)(II), C.R.S. 241. Unlawful removal of tow-truck signage - unlawful usage of tow-truck signage. (1)(a) A person, other than a towing carrier or peace officer as described in section 16- 2.5-101, C.R.S., commits the crime of unlawful removal of tow-truck signage if: (I) A towing carrier has placed a tow-truck warning sign on the driver-side window of a vehicle to be towed or, if window placement is impracticable, in another location on the driver- side of the vehicle; and (II) The vehicle to be towed is within fifty feet of the towing carrier vehicle; and (III) The person removes the tow-truck warning sign from the vehicle before the tow is completed. (b) A person commits the crime of unlawful usage of tow-truck signage if the person places a tow-truck warning sign on a vehicle when the vehicle is not in the process of being towed or when the vehicle is occupied. (c) A towing carrier may permit an owner of the vehicle to be towed to retrieve any personal items from the vehicle before the vehicle is towed. (2) A person who violates subsection (1) of this section commits a class 3 misdemeanor. (3) For purposes of this section, "tow-truck warning sign" means a sign that is at least eight inches by eight inches, is either yellow or orange, and states the following: WARNING: This vehicle is in tow. Attempting to operate or operating this vehicle may result in criminal prosecution and may lead to injury or death to you or another person. 242. Automated driving systems – safe harbor. (1) A person may use an automated driving system to drive a motor vehicle or to control a function of a motor vehicle if the system is capable of complying with every state and federal law that applies to the function that the system is operating. (2) Any provision in articles 1 to 3 of title 42 and article 4 that by its nature regulates - 16 - a human driver, including section 42-2-101, C.R.S., does not apply to an automated driving system, except for laws regulating the physical driving of a vehicle. (3) (a) If an automated driving system is not capable of complying with every state and federal law that applies to the function the system is operating, a person shall not test the system unless approved by the Colorado state patrol and the Colorado department of transportation, in accordance with a process overseen by the Colorado state patrol and the Colorado department of transportation. (b) A person who violates this subsection (3) commits a class B traffic infraction. Upon determining that there is probable cause to believe that a motor vehicle was used to violate this subsection (3), a peace officer of the state patrol may impound or immobilize the motor vehicle until the person who violated this section has obtained the required approval in accordance with subsection (3)(a) of this section or signed an affidavit, under penalty of perjury, stating the person’s intention to cease using the automated driving system in Colorado without the required approval. (4) The Colorado department of transportation shall report to the transportation legislation review committee by September 1 of each year, concerning the testing of automated driving systems in Colorado. The first report is due by September 1, 2018. Notwithstanding the provisions of section 24-1-136, the reporting requirements contained in this subsection (4) continued indefinitely. (5) Liability for a crash involving an automated driving system driving a motor vehicle that is not under human control is determined in accordance with applicable state law, federal law, or common law. 504. Height and length of vehicles. (1) No vehicle unladen or with load shall exceed a height of fourteen feet six inches. The department of transportation shall designate highways with overhead highway structures that have less than fourteen feet six inches of vertical clearance. A driver shall not drive a vehicle under a structure if the vehicle’s height exceeds the department’s designated vertical clearance for the structure. 508. Gross weight of vehicles and loads. (2) The department upon registering any vehicle under the laws of this state, which vehicle is designed and used primarily for the transportation of property or for the transportation of ten or more persons, may acquire such information and may make such investigation or tests as necessary to enable it to determine whether such vehicle may safely be operated upon the highways in compliance with all the provisions of this article. The department shall not register any such vehicle for a permissible gross weight exceeding the limitations set forth in sections 501 to 512 and 1407 of this Code. Every such vehicle shall meet the following requirements: (a) It shall be equipped with brakes as required in section 223; (b) Every motor vehicle to be operated outside of business and residential district shall - 17 - have motive power adequate to propel at a reasonable speed such vehicle and any load thereon or be drawn thereby. (3) If the federal highway administration or the United States congress prescribes or adopts vehicle size or weight limits greater than those now prescribed by the “Federal-Aid Highway Act of 1956”, which limits exceed in full or in part the provisions of section 504 or paragraph (b) or (c) of subsection (1) of this Code, the transportation commission, upon determining that Colorado highways have been constructed to standards which will accommodate such additional size or weight and that the adoption of said size and weight limitations will not jeopardize any distribution of federal highway funds to the state, may adopt size and weight limits comparable to those prescribed or adopted by the federal highway administration or the United States congress and may authorize said limits to be used by owners or operators of vehicles while said vehicles are using highways within this state; but no vehicle size or weight limit so adopted by the commission shall be less in any respect than those now provided for in section 504 or paragraph (b) or (c) of subsection (1) of this section. (4) Any person who drives a vehicle or owns a vehicle in violation of any provision of this section commits a class 2 misdemeanor traffic offense. 510. Permits for excess size and weight and for manufactured homes – rules. (8) The department of transportation shall have a procedure to allow those persons who are transporting loads from another state into Colorado and who would require a permit under the provisions of this section to make advance arrangements by telephone or other means of communication for the issuance of a permit if the load otherwise complies with the requirements of this section. (9) No permit shall be necessary for the operation of authorized emergency vehicles, public transportation vehicles operated by municipalities or other political subdivisions of the state, county road maintenance and county road construction equipment temporarily moved upon the highway, implements of husbandry, and farm tractors temporarily moved upon the highway, including transportation of such tractors or implements by a person dealing therein to such person's place of business within the state or to the premises of a purchaser or prospective purchaser within the state; nor shall such vehicles or equipment be subject to the size and weight provisions of this part 5. (10) Local law enforcement officials shall verify the validity of permits issued under this section whenever feasible. Upon determination by any of such officials or by any personnel of a county assessor's or county treasurer's office indicating that a manufactured home has been moved without a valid permit, the district attorney shall investigate and prosecute any alleged violation as authorized by law. (11) (a) Any local authority may impose a fee, in addition to but not to exceed the following amounts: (I) (I) For overlength, overwidth, and overheight permits on loads or vehicles which do not exceed legal weight limits: (A) Annual permit, two hundred fifty dollars; (B) Single trip permit, fifteen dollars; (II) Not applicable. - 18 - (III) For overweight permits for vehicles or loads exceeding legal weight limits up to two hundred thousand pounds: (A) Annual permit, four hundred dollars; (B) Single trip permit, fifteen dollars plus five dollars per axle; (C) Annual fleet permits, one thousand five hundred dollars plus twenty-five dollars per vehicle to be permitted. For purposes of this sub-subparagraph (C), "fleet" means any group of two or more vehicles owned by one person. This sub-subparagraph (C) shall apply only to longer vehicle combinations as defined in section 505. (c) Any local authority may impose a fee for a special permit for structural, oversize, or overweight moves requiring extraordinary action or moves involving weight in excess of two hundred thousand pounds, except that a super-load permit fee is four hundred dollars, the amount of the fee shall not exceed the actual cost of the extraordinary action. (12) (a) Any person holding a permit issued pursuant to this section or any person operating a vehicle pursuant to such permit who violates any provision of this section, any ordinance or resolution of a local authority, or any standards or rules or regulations promulgated pursuant to this section, except the provisions of subparagraph (IV) of paragraph (b) of subsection (2) of this section, commits a class 2 misdemeanor traffic offense. (b) Any person who violates the provisions of subparagraph (IV) of paragraph (b) of subsection (2) of this section commits a class 2 petty offense and, upon conviction thereof, shall be fined two hundred dollars; except that, upon conviction of a second or subsequent such offense, such person commits a class 3 misdemeanor and shall be punished as provided in section 18-1.3- 501, C.R.S. (c) A local authority with regard to a local permit may, after a hearing, revoke, suspend, refuse to renew, or refuse to issue any permit authorized by this section upon a finding that the holder of the permit has violated the provisions of this section, any ordinance or resolution of the local authority, or any standards or rules promulgated pursuant to this section. 705. Operation of vehicle approached by emergency vehicle – operation of vehicle approaching stationary emergency vehicle (3) (b) (I) Except as otherwise provided in subsection (3)(b)(II) and (3)(b)(III) of this section, any person who violates subsection (2), (2.5), or (2.6) of this section commits careless driving as described in 42-4-1402, C.R.S. (II) If the person violates subsection (2) of this section and the person’s actions are the proximate cause of bodily injury to another person, the person commits a class 1 misdemeanor and shall be punished as described in section 18-1.3-501. (III) If the person violations subsection (2) of this section and the person’s actions are the proximate cause of the death of another person, the person commits a class 6 felony and shall be punished as described in section 18-1.3-401. 712. Driving in highway work area (3) Local road authorities, within their respective jurisdictions and in cooperation with law enforcement agencies, may train and appoint adult civilian personnel for special traffic duty as highway flagpersons within any highway maintenance or construction work area. Whenever such - 19 - duly authorized flagpersons are wearing the badge, insignia, or uniform of their office, are engaged in the performance of their respective duties, and are displaying any official hand signal device of a type and in the manner prescribed in the adopted state traffic control manual or supplement thereto for signaling traffic in such areas to stop or to proceed, no person shall willfully fail or refuse to obey the visible instructions or signals so displayed by such flagpersons. Any alleged willful failure or refusal of a driver to comply with such instructions or signals, including information as to the identity of the driver and the license plate number of the vehicle alleged to have been so driven in violation, shall be reported by the work area supervisor in charge at the location to the district attorney for appropriate penalizing action in a court of competent jurisdiction. 1007. Driving on roadways laned for traffic (2)(a) The department of transportation may designate with signage an area on a roadway not otherwise laned for traffic for use by commercial vehicles, as defined in section 235(1)(a), that are designed to transport sixteen or more passengers, including the driver, and that are operated by a governmental entity or government-owned business that transports the general public or by a contractor on behalf of such an entity or government-owned business. Use of such an area is limited to vehicles authorized by the department operating under conditions of use established by the department but, subject to the conditions of use, the driver of an authorized vehicle has sole discretion to decide whether or not to drive on such an area based on the driver’s assessment of the safety of doing so. The department shall consult with the Colorado state patrol before granting authorization for the use of the area and establishing conditions of use. The department shall impose, and each authorized user shall acknowledge, the conditions for use by written agreement, and the department need not note the conditions of use in roadway signage. An authorized user does not violate this section or section 1004 when operating in accordance with the conditions of use for an area imposed by the department and acknowledged by the user in a written agreement. (b) The department of transportation shall work with local governmental agencies in implementing the provisions of this subsection (2). 1102. Altering of speed limits. (4) No alteration of speed limits on state highways within cities, cities and counties, and incorporated towns is effective until it has been approved in writing by the department of transportation. Upon the request of any incorporated city or town, the department of transportation shall conduct any traffic investigation or survey that is deemed to be warranted for determination of a safe and reasonable speed limit on any street or portion thereof that is a state highway. In conducting such a traffic investigation, the department may receive and consider traffic and engineering data provided by the city or county engineer of any requesting local government that will be impacted by a proposed alteration of speed limits. Any speed limit so determined by the department becomes effective when declared by the local authority and made known by official signs conforming to the state traffic control manual. 1203. Ski areas to install signs - 20 - (1) Colorado ski areas shall install traffic control signs as provided in this section on both sides of that segment of every highway which is within one mile of and which leads to the recognized entrances to the ski area parking lots if it is found that: (a) The ski area has insufficient parking capacity as evidenced by the practice of parking by motor vehicles on such highways; and (b) Such parking constitutes a hazard to traffic or an obstacle to snow removal or the movement or passage of emergency equipment. (2) The findings required by subsection (1) of this section shall be made by the department of transportation for the state highway system, by the chairman of the board of county commissioners for county roads, and by the chief executive officer of a municipality for a municipal street system. Such findings shall be based upon a traffic investigation. (3) Such signs shall conform to any and all specifications of the department of transportation adopted pursuant to section 42-4-601, C.R.S. All such signs shall contain a statement that there is no parking allowed on a highway right-of-way so as to obstruct traffic or highway maintenance and that offending vehicles will be towed away. 1206. Unattended motor vehicle – definitions (3) The use or operation of a remote starter system and adequate security measures is sufficient to comply with subsection (1) of this section. (4) As used in this section: (a) "Adequate security measures" includes, but is not limited to: (I) Using a vehicle that requires a key to put the vehicle into gear and move the vehicle; (II) Keeping a keyless start fob out of proximity of the vehicle; or (III) Employing steering wheel security devices. (b) "Remote starter system" means a device installed in a motor vehicle that allows the engine of the vehicle to be started by remote or radio control. (5) Nothing in this section preempts or otherwise impairs the power of local authorities to enforce or enact ordinances or resolutions concerning time limits on the idling of motor vehicles on or before August 10, 2017. 1208. Parking privileges for persons with disabilities – applicability – rules. (1) Definitions. As used in this section: (a) “Disability” or “disabled” has the same meaning as set forth in section 42-3-204, C.R.S. (b) “Holder” means a person with a disability who has lawfully obtained an identifying plate or placard. (c) “Identifying figure” has the same meaning as set forth in section 42-3-204, C.R.S. (d) “Identifying placard” has the same meaning as set forth in section 42-3-204, C.R.S. (e) “Identifying plate” has the same meaning as set forth in section 42-3-204, C.R.S. (f) “Professional” has the same meaning as set forth in section 42-3-204, C.R.S. (f.5) “Remuneration-exempt identifying placard” has the same meaning as set forth in 42-3-204, C.R.S.(g) "Reserved parking" means a parking space reserved for a person with a disability. - 21 - (2) Use of plate or placard. (a) A person with a disability may use reserved parking on public property or private property if the person displays an identifying plate or placard while using reserved parking. (b) When an identifying placard is used for reserved parking, the driver of the parked motor vehicle shall ensure that the front of the identifying placard is legible and visible through the windshield when viewed from outside the vehicle. The driver shall hang the placard from the rear-view mirror unless a rear-view mirror is not available or the individual is physically unable to hang the placard from the rear-view mirror. If the tag is not hung from the rear-view mirror, the driver shall display it on the dashboard. (c) A person with a disability who is a resident of a state other than Colorado may use reserved parking in Colorado if the motor vehicle displays an identifying plate or placard issued by a state other than Colorado, and if: (I) The identifying plate or placard is currently valid in the state of issuance and meets the requirements of 23 CFR 1235; and (II) The holder has not been a resident in Colorado for more than ninety days. (d) A motor vehicle with an identifying plate or a placard may be parked in public parking areas along public streets or in private parking lots regardless of any time limitation imposed upon parking in the area; except that a jurisdiction may specifically limit reserved parking on any public street to no less than four hours. To limit reserved parking, the jurisdiction must clearly post the appropriate time limits in the area. The ability to park notwithstanding parking limitations does not apply to areas in which: (I) Stopping, standing, or parking of all vehicles is prohibited; (II) Only special vehicles may be parked; or (III) Parking is not allowed during specific periods of the day in order to accommodate heavy traffic. (e) (I) The owner of public or private property may request the installation of official signs or pavement markings identifying reserved parking spaces. The request operates as a waiver of any objection the owner may assert concerning enforcement of this section by a peace officer. An officer may enforce this section on private property notwithstanding any provision of law to the contrary. (II) (A) The number and placement of accessible parking spaces should meet or exceed section 1106 of chapter 11 of the 2012 (second printing) version of the international building code, or any succeeding standard, published by the international code council. (B) The technical standards for accessible parking spaces should meet or exceed section 502, or any successor section, of the “Accessible and Useable Buildings and Facilities” standard, or any succeeding standard, promulgated and amended from time to time by the international code council (commonly cited as ICC/ANSI A117.1). (C) Access aisles should post "Wheelchair Access Aisle Absolutely No Parking" sign, which blocks neither the access aisle nor accessible routes. (D) The technical standards for post- or wall-mounted signs indicating accessible parking spaces and van-accessible parking spaces should meet or exceed section 2B.46 concerning parking, standing, and stopping signs and section 2B.47 concerning design of parking, standing, and stopping of the 2009 version of the manual on uniform traffic control devices, or any succeeding standard, published by the United States federal highway administration. (III) The owner of real property with multiple-family dwellings affixed and with reserved - 22 - parking shall retain the reserved parking as commonly owned for the tenants, owners, or visitors of the individual units within the dwellings. This subparagraph (III) does not prohibit the sale of all commonly owned property so long as the reserved parking is not severed from the other elements. (IV) A person shall not impose restrictions on the use of disabled parking unless specifically authorized by a statute of Colorado and a resolution of or ordinance of a political subdivision of Colorado and notice of the restriction is prominently posted by a sign clearly visible at the parking space. (3) Misuse of reserved parking. (a) A person without a disability shall not park in a parking space on public or private property that is clearly identified by an official sign or by visible pavement markings as being reserved parking or as being a passenger loading zone unless: (I) The person is parking the vehicle for the direct benefit of a person with a disability to enter or exit the vehicle while it is parked in the reserved parking space; and (II) An identifying plate or placard obtained under or authorized by section 42-3-204, C.R.S., is displayed in or on the vehicle if the license plate or placard is currently valid or has expired less than one month before the day the person used the reserved parking. (a.5) A person shall not, while parked in a parking space that requires remuneration, display a remuneration-exempt identifying placard that is not issued to the person. A person who possesses a remuneration-exempt identifying placard shall not allow another person to use the placard to park in a parking space that requires remuneration. (b) (I) A person, after using a reserved parking space that has a time limit, shall not switch motor vehicles or move the motor vehicle to another reserved parking space within one hundred yards of the original parking space within the same eight hours in order to exceed the time limit. (II) (A) Parking in a time-limited reserved parking space for more than three hours for at least three days a week for at least two weeks creates a rebuttable presumption that the person is violating this paragraph (b). (B) This subparagraph (II) does not apply to privately owned parking spaces. (c) A person shall not use reserved parking for a commercial purpose unless: (I) The purpose relates to transacting business with a business the reserved parking is intended to serve; or (II) The owner of private property consents to allow the use. (d) (I) An employee of an entity shall not use an identifying placard issued to the entity unless the employee is transporting persons with disabilities. (II) For a violation of this paragraph (d), the chief operations officer within Colorado of the entity to whom the placard or plate was issued and the offending employee are each subject to the penalties in section 42-4-1701(4)(a)(I)(M), C.R.S. (III) (A) It is an affirmative defense to a violation of this paragraph (d) for the chief operations officer within Colorado that the entity enforces an internal policy controlling access to and use of identifying placards issued to the entity. (B) If the placard used is expired by operation of section 42-3-204(6)(f), C.R.S., it is an affirmative defense to a violation of this paragraph (d) that the person did not know the placard was expired if the person who used the placard was the person to whom it was issued. (e) (I) A person who violates subsection (3)(a) or (3)(a.5) of this section is subject to - 23 - the penalties in section 42-4-1701(4)(a)(VIII) and (IX), C.R.S. (II) A person who violates paragraphs (b) to (d) of this subsection (3) is subject to the penalties in section 42-4-1701(4)(a)(I)(M), C.R.S. (4) Blocking access. (a) Regardless of whether a person displays an identifying plate or placard, a person shall not park a vehicle so as to block reasonable access to curb ramps, passenger loading zones, or accessible routes, as identified in 28 CFR part 36 appendix A, that are clearly identified unless the person is actively loading or unloading a person with a disability. (b) A person who violates this subsection (4) is subject to the penalties in section 42- 4- 1701(4)(a)(VIII), C.R.S. (5) Fraud and trafficking. A person is subject to the penalties in section 42- 4- 1701(4)(a)(X), C.R.S., if the person: (a) Knowingly and fraudulently obtains, possesses, uses, or transfers an identifying placard issued to a person with a disability; (b) Knowingly makes, possesses, uses, alters, or transfers what purports to be, but is not, an identifying placard; or (c) Knowingly creates or uses a device intended to give the impression that it is an identifying placard when viewed from outside the vehicle. (6) Enforcement of reserved parking. (a) A peace officer or authorized and uniformed parking enforcement official may check the identification of a person using an identifying plate or placard in order to determine whether the use is authorized. (b) (I) A peace officer or authorized and uniformed parking enforcement official may confiscate an identifying placard that is being used in violation of this section. (II) The peace officer or parking enforcement official shall send a confiscated placard to the department unless it is being held as evidence for prosecution of a violation of this section. If the tag is being held as evidence, the peace officer or parking enforcement official shall notify the department of the confiscation and pending charges. (III) The department shall hold a confiscated placard for thirty days and may dispose of the placard after thirty days. The department shall release the placard to the person with a disability to whom it was issued when the person signs a statement under penalty of perjury that he or she was unaware that the violator used, or intended to use, the placard in violation of this section. (c) A peace officer and the department may investigate an allegation that a person is violating this section. (d) A person who observes a violation of this section may submit evidence, including a sworn statement, concerning the violation to any law enforcement agency. (e) (I) A peace officer may issue a penalty assessment notice for a violation of paragraph (b), (c), or (d) of subsection (3) of this section by sending it by certified mail to the registered owner of the motor vehicle. The peace officer shall include in the penalty assessment notice the offense or infraction, the time and place where it occurred, and a statement that the payment of the penalty assessment and a surcharge is due within twenty days after the issuance of the notice. The department receives payment of the penalty assessment by the due date if the payment is received or postmarked by the twentieth day after the vehicle owner received the penalty assessment notice. - 24 - (II) If the penalty assessment and surcharge are not paid within twenty days after the date the vehicle owner receives the assessment notice specified in subparagraph (I) of this paragraph (e), the peace officer who issued the original penalty assessment notice shall file a complaint with a court having jurisdiction and issue and serve upon the registered owner of the vehicle a summons to appear in court at the time and place specified. (f) (I) The entering court shall send certification of the entry of judgment for each violation of paragraph (b), (c), or (d) of subsection (3) of this section to the department (II) Upon receipt of certification of an entry of judgment for a violation of paragraph (b), (c), or (d) of subsection (3) of this section, the department shall not register the person's vehicle until all fines imposed for the violations have been paid. (III) Upon receipt of certification or independent verification of an entry of judgment, the department shall revoke an identifying plate or placard as provided in section 42-3- 204(7)(d), C.R.S. (g) (I) Notwithstanding any other provision of this section to the contrary, a holder is liable for any penalty or fine as set forth in this section or section 42-3-204, C.R.S., or for any misuse of an identifying plate or placard, including the use of such plate or placard by any person other than a holder, unless the holder furnishes sufficient evidence that the identifying plate or placard was, at the time of the violation, in the care, custody, or control of another person without the holder's knowledge or consent. (II) A holder may avoid the liability described in subparagraph (I) of this paragraph (g) if, within a reasonable time after notification of the violation, the holder furnishes to the prosecutorial division of the appropriate jurisdiction the name and address of the person who had the care, custody, or control of the identifying plate or placard at the time of the violation or the holder reports the license plate or placard lost or stolen to both the appropriate local law enforcement agency and the department. (h) An employer shall not forbid an employee from reporting violations of this section. A person shall not initiate or administer any disciplinary action against an employee because the employee notified the authorities of a possible violation of this section if the employee has a good-faith belief that a violation has occurred. (i) A landlord shall not retaliate against a tenant because the tenant notified the authorities of a possible violation of this section if the tenant has a good-faith belief that a violation has occurred. (j) In order to stop a vehicle from blocking access or illegally using reserved parking, a peace officer may order a vehicle that is used to violate this subsection (4) to be towed to an impound lot or a vehicle storage location. The peace officer shall verify that the vehicle has not been stolen and report the fact of the tow to the department of revenue in accordance with section 42-4-1804, C.R.S. (k) The local authority issuing a citation under this section, or under any local ordinance defining a substantially equivalent offense, shall transfer one-half of the fine to the state treasurer, who shall credit the fine to the disabled parking education and enforcement fund created in section 42-1-226, C.R.S. 1213. Parking in electric motor vehicle charging stations. - 25 - (1)(a) For the purposes of this section, “official sign” means a sign identifying a parking space for electric motor vehicle charging that cites this section or the equivalent local ordinance and that clearly displays the penalties for violating this section or the equivalent local ordinance. (b) The owner of public or private property may install official signs that identify a parking space as a dedicated charging station. The installation operates as a waiver of any objection the owner may assert concerning enforcement of this section by a peace officer. A peace officer may enforce this section on private property. (2)(a) A person shall not park a motor vehicle within a parking space designated for charging a plug-in electric motor vehicle unless the motor vehicle is a plug-in electric motor vehicle. (b) Except as provided in subsection (3) of this section, a person shall not park a plug-in electric motor vehicle in a parking space with a dedicated charging connector for the parking space unless the person is parked in the charging station for the purpose of charging the plug-in electric motor vehicle. (c) A plug-in electric motor vehicle is rebuttably presumed to not be charging if the motor vehicle is: (I) Parked in a charging station parking space with a dedicated charging connector for the space; and (II) Not continuously and electrically connected to the charger for longer than thirty minutes. (3)(a) A person may park a plug-in electric motor vehicle at a charging after the motor vehicle is fully charged in a parking lot: (I) That serves a lodging business if the person is a client of the lodging business and has parked the plug-in electric motor vehicle in the lot to charge overnight; (II) That serves an airport if the person is a client of the airport and has parked the plug- in electric motor vehicle in the lot to charge when traveling; or (III) Between the hours of 11 p.m. and 5 a.m. (b) The exception in subsection (3)(a) of this section is an affirmative defense to a violation of subsection (2) of this section. (4) A person who violates this section commits a class B traffic infraction. 1409. Compulsory insurance – penalty – legislative intent (8.5) If an operator of a motor vehicle or low-power scooter uses a cell phone or other electronic device to present evidence of a complying policy or certificate of self-insurance in full force and effect, as described in paragraph (b) of subsection (3) of this section: (a) The law enforcement officer to whom the operator presents the device shall not explore the contents of the cell phone or other electronic device other than to examine the operator's policy or certificate of self-insurance; and (b) The law enforcement officer to whom the operator presents the device and any law enforcement agency that employs the officer are immune from any civil damages resulting from the officer dropping or otherwise unintentionally damaging the cell phone or other electronic device. (9) It is the intent of the general assembly that the money collected as fines imposed pursuant subsections (4)(a) and (4)(b) of this section are to be used for the supervision of the public - 26 - highways. The general assembly determines that law enforcement agencies that patrol and maintain the public safety on public highways are supervising the public highways. The general assembly further determines that an authorized agent is supervising the public highways through his or her enforcement of the requirements for demonstration of proof of motor vehicle insurance pursuant to section 42-3-105(1)(d), C.R.S. Therefore, of the money collected from fines pursuant to subsections (4)(a) and (4)(b) of this section, fifty percent shall be transferred to the law enforcement agency that issued the ticket for a violation of this section. The remaining fifty percent of the money collected from fines for violations subsection (4)(a) or (4)(b) of this section shall be transmitted to the authorized agent for the county in which the violation occurred. 1410.5 Providing false evidence of proof of motor vehicle insurance – penalty (1) It is unlawful for any person to offer, use, or attempt to offer or use any means, manner, type of paper, document, card, digital image, or any other proof of motor vehicle liability insurance required by state law to a law enforcement officer, judge, magistrate, prosecutor, or employee of a court clerk’s office with the intent to mislead that official regarding the status or any motor vehicle liability insurance policy in the course of an official investigation, or for purposes of dismissing any charge under section 1409 or reducing any penalty imposed under section 1409, where such means, manner, type, or kind of proof of insurance offered or used, or that is attempted to be offered or used, is known or should be known by the person to be false, fraudulent, or incorrect in any material manner or way, or which is known or should be known by the person to be altered, forged, defaced, or changed in any material respect, unless such changes are required or authorized by law. (2) Violation of this section is a class B traffic infraction, punishable by a fine of up to five hundred dollars. (3) A person who is convicted of, who admits liability for, or against whom a judgment is entered for a violation of this section shall be deemed, but only for purposes of section 18-1-408 C.R.S. to have been convicted of a criminal offense. 1412. Operation of bicycles and other human-powered vehicles. (14) (a) (I) A person may ride a class 1 or class 2 electrical assisted bicycle on a bike or pedestrian path where bicycles are authorized to travel. (II) A local authority may prohibit the operation of a class 1 or class 2 electrical assisted bicycle on a bike or a pedestrian path under its jurisdiction. (b) A person shall not ride a class 3 electrical assisted bicycle on a bike or pedestrian path unless: (I) The path is within a street or highway; or (II) The local authority permits the operation of a class 3 electrical assisted bicycle on a path under its jurisdiction. (15) (a) A person under sixteen years of age shall not ride a class 3 electrical assisted bicycle upon any street, highway, or bike or pedestrian path; except that a person under sixteen years of age may ride as a passenger on a class 3 electrical assisted bicycle that is designed to accommodate passengers. (b) A person shall not operate or ride as a passenger on a class 3 electrical assisted bicycle unless: - 27 - (I) Each person under eighteen years of age is wearing a protective helmet of a type and design manufactured for use by operators of bicycles; (II) The protective helmet conforms to the design and specifications set forth by the United States consumer product safety commission or the American Society for Testing and Materials; and (III) The protective helmet is secured properly on the person’s head with a chin strap while the class 3 electrical assisted bicycle is in motion. (c) A violation of subsection (15)(b) of this section does not constitute negligence or negligence per se in the context of any civil personal injury claim or lawsuit seeking damages. 1416. Failure to present a valid transit pass or coupon - fare inspector authorization – definitions. (1) A person commits failure to present a valid transit pass or coupon if the person occupies, rides in, or uses a public transportation vehicle without paying the applicable fare or providing a valid transit pass or coupon. (2) A person shall not occupy, ride in, or use a public transportation vehicle without possession of proof of prior fare payment. A person shall present proof of prior fare payment upon demand of a fare inspector appointed or employed pursuant to subsection (4) of this section, a peace officer, or any other employee or agent of a public transportation entity. (3) A violation of this section is a class B traffic infraction and is punishable by a fine of seventy-five dollars. Notwithstanding any other provision of law, fines for a violation of subsection (1) of this section shall be retained by the clerk of the court in the city and county of Denver upon receipt by the clerk for a violation occurring within that jurisdiction, or transmitted to the state judicial department if the fine is receipted by the clerk of the court of any other county. (4) (a) Public transportation entities may appoint or employ, with the power of removal, fare inspectors as necessary to enforce the provisions of this section. The employing public transportation entity shall determine the requirements for employment as a fare inspector. (b) A fare inspector appointed or employed pursuant to this section is authorized to enforce the provisions of this section while acting within the scope of his or her authority and in the performance of his or her duties. A fare inspector is authorized to issue a citation to a person who commits failure to provide a valid transit pass or coupon in violation of this section. The fare inspector shall issue a citation on behalf of the county in which the person occupying, riding in, or using a public transportation vehicle without paying the applicable fare is located at the time the violation is discovered. The public transportation entity whose fare inspector issued the citation shall timely deliver the citation to the clerk of the county court for the jurisdiction in which the accused person is located at the time the violation is discovered. (5) As used in this section, unless the context otherwise requires: (a) "Proof of prior fare payment" means: (I) A transit pass valid for the day and time of use; (II) A receipt showing payment of the applicable fare for use of a public - 28 - transportation vehicle during the day and time specified in the receipt; or (III) A prepaid ticket or series of tickets showing cancellation by a public transportation entity used within the day and time specified in the ticket. (b) "Public transportation entity" means a mass transit district, a mass transit authority, or any other public entity authorized under the laws of this state to provide mass transportation services to the general public. (c) "Public transportation vehicle" means a bus, a train, a light rail vehicle, or any other mode of transportation used by a public transportation entity to provide transportation services to the general public. (d) "Transit pass" means any pass, coupon, transfer, card, identification, token, ticket, or other document, whether issued by a public transportation entity or issued by an employer to employees pursuant to an agreement with a public transportation entity, used to obtain public transit. 1705. Person arrested to be taken before the proper court (1) Whenever a person is arrested for any violation of this article punishable as a misdemeanor, the arrested person shall be taken without unnecessary delay before a county judge who has jurisdiction of such offense as provided by law, in any of the following cases: (a) When a person arrested demands an appearance without unnecessary delay before a judge; (b) When the person is arrested and charged with an offense under this article causing or contributing to an accident resulting in injury or death to any person; (c) When the person is arrested and charged with DUI, DUI per se, or UDD; (d) When the person is arrested upon a charge of failure to stop in the event of an accident causing death, personal injuries, or damage to property; (e) In any other event when the provisions of section 42-4-1701 (5)(b) and (5)(c) apply and the person arrested refuses to give a written promise to appear in court as provided in section 42-4-1707. (2) Whenever any person is arrested by a police officer for any violation of this article punishable as a misdemeanor and is not required to be taken before a county judge as provided in subsection (1) of this section, the arrested person shall, in the discretion of the officer, either be given a written notice or summons to appear in court as provided in section 42-4-1707 or be taken without unnecessary delay before a county judge who has jurisdiction of such offense when the arrested person does not furnish satisfactory evidence of identity or when the officer has reasonable and probable grounds to believe the person will disregard a written promise to appear in court. The court shall provide a bail bond schedule and available personnel to accept adequate security for such bail bonds. (2.5) In any case in which the arrested person that is taken before a county judge pursuant to subsection (1) or (2) of this section is a child, as defined in section 19-1-103 (18), C.R.S., the provisions of section 42-4-1706 (2) shall apply. (3) Any other provision of law to the contrary notwithstanding, a police officer may place a person who has been arrested and charged with DUI, DUI per se, or UDD and who has been given a written notice or summons to appear in court as provided in section 42-4- 1707 in a state-approved treatment facility for alcohol use disorders even though entry or other - 29 - record of such arrest and charge has been made. Placement is governed by article 81 of title 27, except where in conflict with this section. 1707. Summons and complaint or penalty assessment notice for misdemeanors, petty offenses, and misdemeanor traffic offenses – release - registration (1)(a) Whenever a person commits a violation of this title punishable as a misdemeanor, petty offense, or misdemeanor traffic offense, other than a violation for which a penalty assessment notice may be issued in accordance with the provisions of section 1701(5)(a), and such person is not required by the provisions of section 42-4-1705, C.R.S., to be arrested and taken without unnecessary delay before a county judge, the peace officer may issue and serve upon the defendant a summons and complaint which must contain the name and address of the defendant, the license number of the vehicle involved, if any, the number of the defendant's driver's license, if any, a citation of the statute alleged to have been violated, a brief description of the offense, the date and approximate location thereof, and the date the summons and complaint is served on the defendant; direct the defendant to appear in a specified county court at a specified time and place; and be signed by the peace officer. The summons and complaint submitted to the department of revenue and the county court before which appearance is required, either by paper or electronic submission, must contain the name and address of the defendant, the license of the vehicle involved, if any, and the number of the defendant's driver's license, if any. (b) A summons and complaint issued and served pursuant to paragraph (a) of this subsection (1) on a minor under the age of eighteen years shall also contain or be accompanied by a document containing an advisement to the minor that the minor's parent or legal guardian, if known, shall be notified by the court from which the summons is issued and be required to appear with the minor at the minor's court hearing or hearings. (1) If a peace officer issues and serves a summons and complaint to appear in any court upon the defendant as described in subsection (1) of this section, any defect in form in such summons and complaint regarding the name and address of the defendant, the license number of the vehicle involved, if any, the number of the defendant's driver's license, if any, the date and approximate location thereof, and the date the summons and complaint is served on the defendant may be cured by amendment at any time prior to trial or any time before verdict or findings upon an oral motion by the prosecuting attorney after notice to the defendant and an opportunity for a hearing. No such amendment shall be permitted if substantial rights of the defendant are prejudiced. No summons and complaint shall be considered defective so as to be cause for dismissal solely because of a defect in form in such summons and complaint as described in this subsection (2). (3)(a) Whenever a penalty assessment notice for a misdemeanor, petty offense, or misdemeanor traffic offense is issued pursuant to section 1701(5)(a), the penalty assessment notice that shall be served upon the defendant by the peace officer shall contain the name and address of the defendant, the license number of the vehicle involved, if any, the number of the defendant's driver's license, if any, a citation of the statute alleged to have been violated, a brief description of the offense, the date and approximate location thereof, the amount of the penalty prescribed for the offense, the amount of the surcharges thereon - 30 - pursuant to sections 24-4.1- 119(1)(f), 24-4.2-104(1), and 24-33.5-415.6, C.R.S., the number of points, if any, prescribed for the offense pursuant to section 42-2-127, and the date the penalty assessment notice is served on the defendant; shall direct the defendant to appear in a specified county court at a specified time and place in the event the penalty and surcharges thereon are not paid; shall be signed by the peace officer; and shall contain a place for the defendant to elect to execute a signed acknowledgment of guilt and an agreement to pay the penalty prescribed and surcharges thereon within twenty days, as well as such other information as may be required by law to constitute the penalty assessment notice to be a summons and complaint, should the prescribed penalty and surcharges thereon not be paid within the time allowed in section 1701. (a.5) A penalty assessment notice issued and served pursuant to paragraph (a) of this subsection (3) on a minor under the age of eighteen years shall also contain or be accompanied by a document containing: (I) A preprinted declaration stating that the minor's parent or legal guardian has reviewed the contents of the penalty assessment notice with the minor; (II) Preprinted signature lines following the declaration on which the reviewing person described in subparagraph (I) of this paragraph (a.5) shall affix his or her signature and for a notary public to duly acknowledge the reviewing person's signature; and (III) An advisement to the minor that: (A) The minor shall, within seventy-two hours after service of the penalty assessment notice, inform his or her parent or legal guardian that the minor has received a penalty assessment notice; (B) The parent or legal guardian of the minor is required by law to review and sign the penalty assessment notice and to have his or her signature duly acknowledged by a notary public; and (C) Noncompliance with the requirement set forth in sub-subparagraph (B) of this subparagraph (III) shall result in the minor and the parent or legal guardian of the minor being required to appear in court pursuant to sections 42-4-1710(1) (b), 42-4-1710(1.5), and 42-4- 1716(4), C.R.S. (b) One copy of said penalty assessment notice shall be served upon the defendant by the peace officer and one copy sent to the supervisor within the department and such other copies sent as may be required by rule of the department to govern the internal administration of this article between the department and the Colorado state patrol. (4)(a) The time specified in the summons portion of said summons and complaint must be at least twenty days after the date such summons and complaint is served, unless the defendant shall demand an earlier court appearance date. (b) The time specified in the summons portion of said penalty assessment notice shall be at least thirty days but not more than ninety days after the date such penalty assessment notice is served, unless the defendant shall demand an earlier court appearance date. 1718. Electronic transmission of data—standards. A municipal court, county court, district court, or any court with jurisdiction over violations of traffic rules and laws shall not dismiss any charges or refuse to enforce any traffic law or rule solely because a penalty assessment notice or summons and complaint issued pursuant to the standards established in this section is in electronic form or contains an electronic - 31 - signature. 1719. Violations--commercial driver's license--compliance with federal regulation. As to a holder of a commercial driver's license as defined in section 42-2-402 or the operator of a commercial motor vehicle as defined in section 42-2-402, a court shall not defer imposition of judgment or allow a person to enter into a diversion program that would prevent a driver's conviction for any violation, in any type of motor vehicle, of a traffic control law from appearing on the driver's record. APPENDICES DEFINITIONS (5) "Authorized agent" means the county clerk and recorder in each county in the state of Colorado, the clerk and recorder in the city and county of Broomfield, and the manager of revenue or such other official of the city and county of Denver as may be appointed by the mayor to perform the functions related to the registration of, titling of, or filing of liens on motor vehicles, wheeled trailers, semitrailers, trailer coaches, special mobile machinery, off-highway vehicles, and manufactured homes. (6) "Authorized emergency vehicle" means such vehicles of the fire department, police vehicles, ambulances, and other special-purpose vehicles as are publicly owned and operated by or for a governmental agency to protect and preserve life and property in accordance with state laws regulating emergency vehicles; said term also means the following if equipped and operated as emergency vehicles in the manner prescribed by state law: (a) Privately owned vehicles as are designated by the state motor vehicle licensing agency necessary to the preservation of life and property; or (b) Privately owned tow trucks approved by the public utilities commission to respond to vehicle emergencies. (7.5) "Autocycle" means a three-wheeled motorcycle that does not use handlebars or any other device that is directly connected to a single front wheel to steer and in which the driver and each passenger ride in a fully or partly enclosed seating area that is equipped with safety belts for all occupants that constitute a safety belt system, as defined in section 42-4-237(1)(b), C.R.S. For purposes of this subsection (7.5), “partly enclosed seating area” means a seating area that is entirely or partly surrounded on the sides by the frame or body of a vehicle but is not fully enclosed. (7.7) “Automated driving system” means hardware and software that are collectively capable, without any intervention or supervision by a human operator, of performing all aspects of the dynamic driving task for a vehicle on a part-time or full-time basis, described as levels 4 and 5 - 32 - automation in SAE International’s standard J3016, as it existed in September 2016. (8.5) "BAC" means either: (a) A person's blood alcohol content, expressed in grams of alcohol per one hundred milliliters of blood as shown by analysis of the person's blood; or (b) A person's breath alcohol content, expressed in grams of alcohol per two hundred ten liters of breath as shown by analysis of the person's breath. (9) "Base jurisdiction" means the state, province, or other jurisdiction which receives, apportions, and remits to other jurisdictions moneys paid for registration of a vehicle pursuant to a reciprocal agreement governing registration of vehicles. (10.5) "Bulk electronic transfer" means the mass electronic transfer of files, updated files, or portions thereof, in the same form as those files exist within the department. (16.5) “Colorado DRIVES” is an acronym that stands for “Colorado driver’s license, record, identification, and vehicle enterprise solution” and means the driver and vehicle services information technology system that the department uses to provide driver, identification, and vehicle title registration services to Colorado residents. (27.3) "DUI" means driving under the influence, as defined in section 42-4-1301(1)(f), C.R.S., and use of the term shall incorporate by reference the offense described in section 42-4- 1301(1)(a), C.R.S. (27.5) "DUI per se" means driving with a BAC of 0.08 or more, and use of the term shall incorporate by reference the offense described in section 42-4-1301(2)(a), C.R.S. (27.7) "DWAI" means driving while ability impaired, as defined in section 42-4-1301(1)(g) C.R.S., and use of the term shall incorporate by reference the offense described in section 42- 4- 1301(1)(b), C.R.S. (27.8) (a) “Dynamic driving task” means all of the following aspects of driving: (I) Operational aspects, including steering, braking, accelerating, and monitoring the vehicle and the roadway; and (II) Tactical aspects, including responding to events, determining when to change lanes, turning, using signals, and other related actions. (b) “Dynamic driving task” does not include strategic aspects, including determining destinations or way points, of driving. - 33 - (28) "Effective date of registration period certificate" means the month in which a fleet owner must register all fleet vehicles. (28.5) "Electrical assisted bicycle" means a vehicle having three wheels and fully operable pedals, and an electric motor not exceeding seven hundred fifty watts of power. Electrical assisted bicycles are further required to conform to one of three classes as follows: (a) “Class 1 electrical assisted bicycle” means an electrical assisted bicycle equipped with a motor that provides assistance only when the rider is pedaling and that ceases to provide assistance when the bicycle reaches a speed of twenty miles per hour. (b) “Class 2 electrical assisted bicycle” means an electrical assisted bicycle equipped with a motor that provides assistance regardless of whether the rider is pedaling but ceases to provide assistance when the bicycle reaches a speed of twenty miles per hour. (c) “Class 3 electrical assisted bicycle” means an electrical assisted bicycle equipped with a motor that provides assistance only when the rider is pedaling and that ceases to provide assistance when the bicycle reaches a speed of twenty-eight miles per hour. (28.7) "Electric personal assistive mobility device" or "EPAMD" means a self-balancing, nontandem two-wheeled device, designed to transport only one person, that is powered solely by an electric propulsion system producing an average power output of no more than seven hundred fifty watts. (39.5) "Golf car" means a self-propelled vehicle not designed primarily for operation on roadways and that has: (a) A design speed of less than twenty miles per hour; (b) At least three wheels in contact with the ground; (c) An empty weight of not more than one thousand three hundred pounds; and (d) A carrying capacity of not more than four persons. (47.3) “Last-known address” means: (a) For notifications regarding motor vehicles, the most recent mailing address provided on a vehicle registration or vehicle registration mailing address change notification provided in accordance with section 42-3-113, C.R.S., or the corrected address as reported by an address correction service licensed by the United States postal service; (b) For notifications regarding driving privileges, driver’s licenses, or identification cards when there is a driver’s license or identification card on file with the department, the most recent of either: (I) The mailing address provided by an applicant for a driver’s license or identification card; (II) The mailing address stated on an address change notification provided to the department pursuant to subsection (47.3)(a) of this section; or - 34 - (III) The corrected address as reported by an address correction service licensed by the United States postal service; (c) For notifications regarding driving privileges or identification cards when there is no driver’s license or identification card on file with the department, the most recent address shown on any other record on file with the department pursuant to this article 1 and as may be corrected by an address correction service licensed by the United States postal service. (47.5) "Lien" means a security interest in a motor or off-highway vehicle under article 9 of title 4, C.R.S., and this article. (48) "Local authorities" means every county, municipal, and other local board or body having authority to adopt local police regulations under the constitution and laws of this state. (48.5) (a) "Low-power scooter" means a self-propelled vehicle designed primarily for use on the roadways with not more than three wheels in contact with the ground, no manual clutch, and either of the following: (I) A cylinder capacity not exceeding fifty cubic centimeters if powered by internal combustion; or (II) A wattage not exceeding four thousand four hundred seventy-six if powered by electricity. (b) "Low-power scooter" shall not include a toy vehicle, bicycle, electrical assisted bicycle, wheelchair, or any device designed to assist mobility-impaired people who use pedestrian rights- of-way. (48.6) "Low-speed electric vehicle" means a vehicle that: (a) Is self-propelled utilizing electricity as its primary propulsion method; (b) Has at least three wheels in contact with the ground; (c) Does not use handlebars to steer; and (d) Exhibits the manufacturer's compliance with 49 CFR 565 or displays a seventeen- character vehicle identification number as provided in 49 CFR 565. (68.5)(a) "Persistent drunk driver" means any person who: (I) Has been convicted of or had his or her driver's license revoked for two or more alcohol- related driving violations; (II) Continues to drive after a driver's license or driving privilege restraint has been imposed for one or more alcohol-related driving offenses; (III) Drives a motor vehicle while the amount of alcohol in such person's blood, as shown by analysis of the person's blood or breath, was 0.15 or more grams of alcohol per one hundred - 35 - milliliters of blood or 0.15 or more grams of alcohol per two hundred ten liters of breath at the time of driving or within two hours after driving; or (IV) Refuses to take or complete, or to cooperate in the completing of, a test of his or her blood, breath, saliva, or urine as required by section 18-3-106(4) or 18-3-205(4), C.R.S., or section 42- 4-1301.1(2), C.R.S. (b) Nothing in this subsection (68.5) shall be interpreted to affect the penalties imposed under this title for multiple alcohol- or drug-related driving offenses, including, but not limited to, penalties imposed for violations under sections 42-2-125(1)(g) and (1) (i) and 42-2-202(2), C.R.S. (88) “School bus" means a motor vehicle that is designed and used specifically for the transportation of school children to or from a public or private school or a school-related activity, whether the activity occurs within or without the territorial limits of any district and whether or not the activity occurs during school hours. “School bus” does not include informal or intermittent arrangements, such as sharing of actual gasoline expense or participation in a car pool, for the transportation of school children to or from a public or private school or a school- related activity. (88.5) (a) "School vehicle" means a motor vehicle, including but not limited to a school bus, that is owned by or under contract to a public or private school and operated for the transportation of school children to or from school or a school-related activity. (b) "School vehicle" does not include: (I) Informal or intermittent arrangements, such as sharing of actual gasoline expense or participation in a carpool, for the transportation of school children to or from a public or private school or a school-related activity; or (II) A motor vehicle that is owned by or under contract to a child care center, as defined in section 26-6-102 (5), C.R.S., and that is used for the transportation of children who are served by the child care center. (93.5)(a) "Special mobile machinery" means machinery that is pulled, hauled, or driven over a highway and is either: (I) A vehicle or equipment that is not designed primarily for the transportation of persons or cargo over the public highways; or (II) A motor vehicle that may have been originally designed for the transportation of persons or cargo over the public highways, and has been redesigned or modified by the addition of mounted equipment or machinery, and is only incidentally operated or moved over the public highways. (b) "Special mobile machinery" includes vehicles commonly used in the construction, maintenance, and repair of roadways, the drilling of wells, and the digging of ditches. Ord. 21-08 Adopting 2020 MTC [6/22/21] Page 1 of 12 TOWN OF AVON, COLORADO ORDINANCE NO. 21-08 AN ORDINANCE ADOPTING THE 2020 MODEL TRAFFIC CODE BY REFERENCE AND REPEALING AND REENACTING SECTIONS OF TITLE 10 OF THE AVON MUNICIPAL CODE WHEREAS, the Town of Avon, Colorado (the “Town”) is a home rule municipality and political subdivision of the State of Colorado (the “State”) organized and existing under a home rule charter (the “Charter”) pursuant to Article XX of the Constitution of the State; and WHEREAS, pursuant to C.R.S. §31-15-103 and §31-15-104, and pursuant to the home rule powers of the Town of Avon (“Town”), the Town Council has the power to make and publish ordinances necessary and proper to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience of its inhabitants; and WHEREAS, the Town Council finds that the adoption of the 2020 Model Traffic Code will improve the standards for road safety and will thereby promote the health, safety and general welfare of the Avon community; and WHEREAS, pursuant to Avon Town Charter §6.9 and Title 31, Article 16, Parts 1 and 2, Colorado Revised Statutes, the Town Council may adopt by reference any statute, rule, regulation, model code, or standard that is promulgated by the federal government, the State of Colorado, an agency of either the federal government or the State, or another municipality; and WHEREAS, Section 110 of the 2020 Model Traffic Code states that Town Council may enact, adopt and enforce traffic regulations which address the same subject matter as the various sections of the Model Traffic Code, state law or additional regulations included in C.R.S. §42-4-111; and WHEREAS, the Town Council desires to adopt by reference the 2020 Model Traffic Code for Colorado, also referred to as Model Traffic Code or 2020 Model Traffic Code, with certain amendments as described in this Ordinance; and WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply with the requirements of the Avon Home Rule Charter by setting a public hearing to provide the public an opportunity to present testimony and evidence regarding the application and that approval of this Ordinance on first reading does not constitute a representation that the Town Council, or any member of the Town Council, supports, approves, rejects, or denies this ordinance; APPENDIX A: Ordinance 21-08 Ord. 21-08 Adopting 2020 MTC [6/22/21] Page 2 of 12 WHEREAS, the Town Council conducted a public hearing on June 8, 2021, after properly posting notice of such hearing, and considered all public comments and other information presented prior to taking any final action to adopt this ordinance. BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. 2010 Edition of Model Traffic Code Repealed. The 2010 edition of the Model Traffic Code is hereby repealed. Section 3. 2020 Edition of Model Traffic Code Adopted by Reference. The 2020 edition of the Model Traffic Code is hereby adopted by reference. All amendments to the Model Traffic Code as set forth in Article III Amendments of Chapter 10.04 are hereby readopted as amendments to the 2020 Model Traffic Code except as provided in this Ordinance. Section 4. Repealed and Reenacted. Avon Municipal Code Section 10.04.010(a) is hereby repealed and reenacted in its entirety to read as follows: “10.04.010 Adoption--Copies on File. (a) Pursuant to § 6.9 of Chapter 6 of the Town Charter and C.R.S. Title 31, Article 16, Parts 1 and 2, as amended, there is adopted by reference Articles I and II, inclusive, and with deletions and additions noted below the 2020 edition of the Model Traffic Code for Colorado Municipalities, promulgated by and published as such by the Colorado Department of Transportation, 4201 East Arkansas Ave., Denver, CO 80222, which shall be referred to as the Model Traffic Code or MTC in this Chapter 10.04. The subject matter of the Model Traffic Code relates primarily to comprehensive traffic control regulations for the Town. The purpose of the Ordinance codified in this chapter and the code adopted herein is to provide a system of traffic regulations consistent with state law generally conforming to similar regulations throughout the state and nation. Any conflict between the MTC and local regulation shall be resolved in favor of the local regulation as may be permitted by law.” Section 5. Amended. Avon Municipal Code Section 10.04.040 is hereby repealed and reenacted in its entirety to read as follows: “10.04.040 – Violation – penalties. The following penalties shall apply to this Title: Ord. 21-08 Adopting 2020 MTC [6/22/21] Page 3 of 12 (1) It is unlawful for any person to violate any provision adopted in this Title. (2) Any person violating any provision of this Title may be found guilty of committing a traffic offense or traffic infraction and sentenced by the Municipal Court as set out below. (a) Traffic offenses shall be punished in accordance with the provisions of Section 1.08.010 of this Code, including the possibility of jail. Such offenses shall be deemed misdemeanors and may be tried by a jury. Traffic offenses are the following: traffic violations resulting in an accident causing personal injury, death, or appreciable damage to the property of another; reckless driving; driving 25 mph or more over the speed limit; exhibition of speed or speed contest; eluding or attempting to elude a police officer; disobeying a police officer or fire department member; driving without insurance; failure to stop for school bus with flashing lights; school bus failing to use flashing lights; and use of altered or fictious driving license. (b) Traffic infractions shall be punished by a fine only. Any violation of this Title other than a traffic offense shall constitute a traffic infraction. The Municipal Court shall order a schedule of fines for traffic infractions consistent with this Title. The Municipal Court is further authorized to order individualized fines consistent with this Title for any unscheduled traffic infraction. (c) References in the 2020 Model Traffic Code purporting to penalize traffic offenses and traffic infractions on the basis of different classes are hereby repealed. There shall be a single class of traffic offense and a single class of traffic infraction. (3) Penalties for violations for which points may not be assessed pursuant to Section 42- 2-127, C.R.S., shall be not less than $40.00. Penalties for violations for which points may be assessed pursuant to Section 42-2-127, C.R.S., shall be as follows: (a) Three or fewer points – not less than $50.00 (b) Four or five points – not less than $100.00 (c) More than five points – not less than $150.00 (4) References in the 2020 Model Traffic Code purporting to characterize traffic violations as misdemeanor or petty offenses are hereby repealed. Misdemeanor characterizations shall be governed solely by AMC 10.04.040(2)(a). (5) The Municipal Court reserves the authority to order a schedule of fines in accordance with Colorado Municipal Court Rules of Procedure Rule 210(b)(5), provided that such schedule of fines is not inconsistent with any specific fine set forth in Chapter 10.06. (6) All fines for violations of this Title shall be paid to the Town, unless otherwise specified in this Code. Ord. 21-08 Adopting 2020 MTC [6/22/21] Page 4 of 12 Section 6. Repealed. Avon Municipal Code Sections 10.04.060, 10.04.070, 10.04.080, 10.04.090, 10.04.100, 10.04.110, 10.04.120, 10.04.130, 10.04.140, 10.04.150, 10.04.160, 10.04.170, and 10.04.180 are hereby repealed in their entirety. Section 7. Enacted. Avon Municipal Code Sections 10.04.060 through 10.04.170 are hereby enacted to read as follows: “10.04.060 MTC Section 107.5 enacted – obedience to members of fire department. Section 107.5 of the Model Traffic Code is hereby enacted to read as follows: "Section 107.5. Obedience to members of the fire department. Members of the fire department, when at the scene of a fire, accident or matter involving the use of firefighting equipment, may direct, or assist the police in directing, traffic in the immediate vicinity. No person shall willfully fail or refuse to obey a lawful order or direction of a member of the fire department so acting." 10.04.070 - Section 706(1) amended – obedience to railroad signal. Section 706(1) of the Model Traffic Code is amended in its entirety to read as follows: "706. Obedience to Railroad Signal. (1) Whenever any person driving a motor vehicle approaches a railroad grade crossing under any circumstances stated in this section, the driver of such vehicle shall stop within fifty feet but not less than fifteen feet from the nearest rail of such railroad and shall not proceed until he can do so safely. Such requirements shall apply when: (a) A clearly visible electric or mechanical signal device gives warning of the immediate approach of a railroad train; (b) A crossing gate is lowered or when a human flagman gives or continues to give a signal of the approach or passage of a railroad train; (c) A railroad train approaching within approximately fifteen hundred feet of the highway crossing emits a signal audible from such distance, and such railroad train, by reason of its speed or nearness to such crossing, is an immediate hazard; or (d) An approaching railroad train is plainly visible and is in hazardous proximity to such crossing." 10.04.080 - MTC Section 712(3) amended – Driving in highway work area. Section 712(3) of the Model Traffic Code is amended in its entirety to read as follows: “Section 712. Driving in highway work area. Ord. 21-08 Adopting 2020 MTC [6/22/21] Page 5 of 12 (3) Local road authorities, within their respective jurisdictions and in cooperation with law enforcement agencies, may train and appoint adult civilian personnel for special traffic duty as highway flaggers within any highway maintenance or construction work area. Whenever such duly authorized flaggers are wearing the badge, insignia, or uniform of their office, are engaged in the performance of their respective dues, and are displaying any official hand signal device of a type and in the manner prescribed in the adopted state traffic control manual or supplement thereto for signaling traffic in such areas to stop or to proceed, no person shall willfully fail or refuse to obey the visible instructions or signals so displayed by such flaggers. Any alleged willful failure or refusal of a driver to comply with such instructions or signals, including information as to the identity of the driver and the license plate number of the vehicle alleged to have been so driven in violation, shall be reported by the work area supervisor in charge at the location to the district attorney for appropriate penalizing action in a court of competent jurisdiction. Any person who violates any provision of this section commits a traffic infraction.” 10.04.090 - MTC Section 1214 enacted – Parking on private property. Section 1214 of the Model Traffic Code is hereby enacted to read as follows: “1214. Unlawful parking on private parking lots or private property. It shall be unlawful for any person to park or cause to be parked any vehicle upon any private parking lot or any other private property within the Town of Avon, without the consent of the owner thereof or the tenant or person in possession or control of said private parking lot or private property. (a) Posting of Sign. Any, owner, tenant or person in possession or control of a private parking lot or private property wishing to avail himself of the provision of this section shall post at each and every entrance to a private parking lot or private property a sign containing essentially the following words: Private Parking Lot Parking is reserved for persons having permission of the owner and any other person may be subject to the penalties imposed by Ordinance No. 21- 08. Violating vehicles may be impounded. All signs must be approved by the Chief of Police, who shall have the authority to determine size, shape and lettering of such signs. The Chief of Police may approve signs which combine the requirements of this section with the requirements of Section 5.12.100(4) concerning the booting or towing of unauthorized vehicles. (b) Signing of Complaints. No complaint shall be issued for any violation of this section unless the same is signed by the owner, tenant or person in possession or control of the private parking lot or private property within or upon which a violation of this section may have occurred or the agent of such person or entity." 10.04.110 - MTC Section 1417 enacted—School Safety Sensitive Zones – increase of penalties for moving traffic violations. Ord. 21-08 Adopting 2020 MTC [6/22/21] Page 6 of 12 Section 1417 of the Model Traffic Code is hereby enacted to read as follows: “1417. School zones – increase of penalties for moving traffic violations. (1) Any person who commits a moving traffic violation in a school zone is subject to double penalties and surcharges. (2) For purposes of this section, ‘school zone’ means an area that is designated as a school zone and has appropriate signs posted indicating that the penalties and surcharges will be doubled. The state or local government having jurisdiction over the placement of traffic signs and traffic control devices in the school zone area shall designate when the area will be deemed a school zone for the purposes of this section. In making such designation, the state or local government shall consider when increased penalties are necessary to protect the safety of school children. Such zones shall be designated Safety Sensitive.” 10.04.120 - MTC Section 1418 enacted— Residential Area Safety Sensitive Zones – increase of penalties for moving traffic violations. Section 1418 of the Model Traffic Code is hereby enacted to read as follows: “1418. Residential Area Safety Sensitive Zones – increase of penalties for moving traffic violations. (1) Any person who commits a moving traffic violation in a Residential Area Safety Sensitive Zone area as defined herein is subject to double penalties and surcharges. (2) For purposes of this section, the following are designated ‘residential area safety sensitive zones’ and will be marked with appropriate signage: Wildridge Subdivision; Wildwood Subdivision; on Hurd Lane east of Avon Road; on Stonebridge Drive; on Eaglebend Drive; on West Beaver Creek Boulevard, from Highway 6 to Lake Street; on Swift Gulch Road, from the 800 block to the 1270 block; on East Beaver Creek Blvd, from Post Blvd to the 4000 block; and on Nottingham Road, from Buck Creek Rd to the 730 block.” 10.04.130 - MTC Section 1419 enacted – Driving on Public Park. Section 1419 of the Model Traffic Code is hereby enacted to read as follows: “1419. Driving on public park. No person shall drive or cause to be driven any vehicle on any portion of a public park or other public property other than established roadways specifically provided for public driving, unless specifically authorized so to do by a traffic control officer.” 10.04.140 - MTC Sections 1701, 1705, and 1707 deleted Ord. 21-08 Adopting 2020 MTC [6/22/21] Page 7 of 12 Sections 1701, 1705, and 1707 of the Model Traffic Code are inapplicable to municipalities and are each hereby deleted in its entirety. 10.04.150 - MTC Section 1709 Amended – Penalty assessment notice for traffic offenses. Section 1709 of the Model Traffic Code is amended by enactment of the following language: "(5.5). If a person receives a penalty assessment notice for a violation under Section 1709 and such person pays the fine and surcharge for the violation on or before the 20th day following the date of citation, the points assessed for the violation are reduced as follows: (a) For a violation having an assessment of three (3) or more points under Section 42-2-127, C.R.S., the points are reduced by two (2) points; (b) For a violation having the assessment of two (2) points under Section 42-2-127, C.R.S., the points are reduced by one (1) point. (6). Whenever the Town of Avon reduces a traffic offense the reduced offense and the points assessed for such reduced offense shall conform to the point assessment schedule under Section 42-2-127(5), C.R.S." 10.04.160 - MTC Section 1801 Amended – Authority to impound vehicles. Section 1801 of the Model Traffic Code is hereby amended to read in its entirety as follows: “Section 1801. Authority to Impound Vehicles. (a) Whenever any police officer finds a vehicle, attended or unattended, standing upon any portion of a street or highway right-of-way within this municipality in such a manner as to constitute a violation of sections 1202 and 1204 of this Code, or left unattended, for a period of 24 hours or more and presumed to be abandoned under the conditions prescribed by 42-4-1802 et seq., C.R.S., such officer shall require such vehicle to be removed or cause the same to be removed and placed in storage at the nearest garage or other place of safety designated or maintained by this municipality. (b) In the event of abandonment of a vehicle on property within this municipality other than public rights-of-way the owner of such property shall notify the police department and said police, after a period of 72 hours, shall cause the abandoned vehicle to be removed and placed in storage in the nearest garage or other place of safety designated or maintained by the municipality. (c) Whenever any police officer finds a vehicle parked on any street or at any place within this municipality in violation of any provision of this code or in violation of a provision contained on any official sign, such officer may require such vehicle to be removed or cause the same to be removed and placed in storage. Ord. 21-08 Adopting 2020 MTC [6/22/21] Page 8 of 12 (d) A vehicle illegally parked on private property shall not be impounded pursuant to Section 1801(c) hereof unless a complaint for said violation is signed by the owner, lessee, tenant, or authorized agent who is legally in possession or control of said property. (e) In the event a vehicle is impounded pursuant to subsection (a), (b) or (c) of Section 1801 hereof, the owner or driver of the vehicle shall pay as a fine a reasonable amount for said removal or removal and storage in addition to the penalty imposed for illegal parking or any other violation of any of the provisions hereof. (f) Whenever the police officer or any other employee of the Town of Avon so authorized removes the vehicle and causes it to be impounded as authorized by law, and the officer or other employee knows or is able to ascertain from the registration, or other records in the vehicle or otherwise, the name of the owner and address of the owner, the officer or employee shall immediately give or cause to be given notice in writing to the owner of the fact of the removal, the reason for it and the place to which the vehicle has been removed. (g) Whenever an officer or employee of the Town removes a vehicle from a public way or from public or private property and does not know or is not able to ascertain the name of the owner thereof, or for any other reason is unable to give the notice to the owner as provided in Section 1801(f), and in the event the vehicle is not returned to the owner within a period of three days, the Chief of Police or other employee of the Town designated by the Chief of Police shall immediately send or cause to be sent a written report of the removal by mail to the state department whose duty it is to register motor vehicles. The notice shall include a complete description of the vehicle, the date, time and place of removal, the reasons for the removal, and the name of the garage or other place where the vehicle is stored, with a request that the owner of the vehicle be notified immediately. (h) Whenever, pursuant to the terms of this chapter, a vehicle has been impounded by the Town for period of thirty days and no claim of ownership or right to possession thereof has been made, or when a claim has been made but not established to the satisfaction of the town manager, and no suit or action to determine the claim has been instituted, the Town may dispose of the vehicle in the manner set out in subsection (i). (i) The Chief of Police or other employee of the Town designated by the Chief of Police shall cause written notice to be given to all persons known by him to claim an interest in the vehicle. The notice shall be given by delivery in person, or by certified mail, addressed to the last known address of the business or residence of the person to be notified. The notice shall contain the following: (1) An itemized statement of the amount due to the Town for removal of and storage of the vehicle showing the amount due at the time of notice; (2) A description of the vehicle. (3) A demand that the amount due the Town, as stated in the notice, and such further claims as shall accrue, shall be paid and the right to the possession of the vehicle be established to the satisfaction of the Chief of Police on or before the date mentioned, being not less than ten days Ord. 21-08 Adopting 2020 MTC [6/22/21] Page 9 of 12 from the delivery of the notice if it is personally delivered, or from the date or registration of the letter, unless the person notified chooses to appear before the Chief of Police or his designee within such ten-day period and establishes that (1) the impounding of the vehicle was improper or (2) the amount demanded is unreasonable, and the statement that unless the amount due the Town is paid or determined not to be required and the right to the possession of the vehicle is established to the satisfaction of the Chief of Police within the time specified, the vehicle will be advertised for sale and sold by auction at a specified time and place. (j) In accordance with the terms of the notice provided for in Section 1801(i)(3), a sale of the vehicle by auction may be had to satisfy the claim of the Town for the storage and removal of the vehicle and to discharge the Town from further responsibility in connection with the vehicle and from any duty to further retain or store the vehicle. The sale shall be held at the place where the vehicle is stored or impounded or, if it is manifestly unsuitable for the purpose, at the nearest suitable place and shall be made to the highest bidder of a price at least as great as the estimated value of the vehicle. After the time for the payment of the claim and the establishment to the satisfaction of the Chief of Police of the right to possession of the vehicle has elapsed and notice was given as required, an advertisement of the sale, describing the vehicle to be sold and stating the names of all persons known by the Chief of Police to claim an interest in the vehicle, if any, and the time and place of the sale, shall be published once a week for two consecutive weeks in a newspaper published in the county. The sale shall be held not less than fifteen days from the date of the first publication. The Chief of Police shall execute and deliver a bill of sale, together with any report required by the Colorado Department of Revenue, evidencing transfer of title to the vehicle to any purchaser. (k) From the proceeds of the sale provided for in Section 1801(j), the Chief of Police shall satisfy the claim of the Town for the charges for removal and storage of the vehicle, and for the reasonable charges or expenses for or of the notice, advertising and sale. The balance, if any, of the proceeds will be paid into the treasury of the Town and deposited to the general fund. No claim for refund shall be made by any person entitled to it except if the claim is made within one year from the date of any sale resulting in the payment of any such proceeds into the treasury. A claim or refund shall be made to the town manager, who shall make a thorough examination of the claim. The failure on the part of any person to request the initiation of a refund to him within one year from the date of sale shall be conclusive of the fact that he has no meritorious claim for the refund within the set period of one year from the date of sale and he shall not thereafter commence any action, suit or proceeding whatsoever to obtain the refund and the Town shall be under no liability to him whatsoever by reason of the sale for the payment of any part of the proceeds of the sale or the entire proceeds of the sale in the treasury of the Town. (l) When any vehicle is offered for sale at auction pursuant to the terms of this Chapter and there is no bid for the vehicle, the Chief of Police shall declare the vehicle to be sold to the Town for the amount of the charges for the removal and storage of the vehicle, and the charges and expenses of notice, advertisement, and sale, and shall place the vehicle in the custody of such department of the Town as he in his sole discretion may determine, for the sole benefit and use of the Town. (m) There shall be no right of redemption from any sale made pursuant to the terms of this section and after a vehicle has been sold pursuant to such terms, neither the Town nor any officer, agent Ord. 21-08 Adopting 2020 MTC [6/22/21] Page 10 of 12 or employee of the Town shall be liable for failure to deliver the vehicle to anyone other than the purchaser or purchasers at the sale. (n) Nothing contained herein shall be construed as imposing any obligation or liability on the Town for any negligence in the towing or storage of any vehicle or with respect to the quality of title to any vehicle.” 10.04.170 - MTC Section 1903 amended – school bus violations – increase of penalties for traffic violations. Section 1903 of the Model Traffic Code is amended by enactment of the following language: “1903(6)(c). Any person who violates the provisions of paragraph (a) of subsection (1) of this section is subject to doubled penalties and surcharges.” Section 8. Severability. If any provision of this Ordinance, or the application of such provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. The Town Council hereby declares that it would have passed this Ordinance and each provision thereof, even though any one of the provisions might be declared unconstitutional or invalid. As used in this Section, the term “provision” means and includes any part, division, subdivision, section, subsection, sentence, clause or phrase; the term “application” means and includes an application of an ordinance or any part thereof, whether considered or construed alone or together with another ordinance or ordinances, or part thereof, of the Town. Section 9. Effective Date. This Ordinance shall take effect thirty (30) days after the date of final passage in accordance with Section 6.4 of the Avon Home Rule Charter. Section 10. Safety Clause. The Town Council hereby finds, determines and declares that this Ordinance is promulgated under the general police power of the Town of Avon, that it is promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The Town Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. Section 11. Codification Amendments. The codifier of the Town’s Municipal Code, Colorado Code Publishing, is hereby authorized to make such numerical and formatting changes as may be necessary to incorporate the provisions of this Ordinance within the Avon Municipal Code. The Town Clerk is authorized to correct, or approve the correction by the codifier, of any typographical error in the enacted regulations, provided that such correction shall not substantively change any provision of the regulations adopted in this Ordinance. Such corrections may include spelling, reference, citation, enumeration, and grammatical errors. Section 12. No Existing Violation Affected. Nothing in this Ordinance shall be construed to release, extinguish, alter, modify, or change in whole or in part any penalty, liability or right or Ord. 21-08 Adopting 2020 MTC [6/22/21] Page 11 of 12 affect any audit, suit, or proceeding pending in any court, or any rights acquired, or liability incurred, or any cause or causes of action acquired or existing which may have been incurred or obtained under any ordinance or provision hereby repealed or amended by this Ordinance. Any such ordinance or provision thereof so amended, repealed, or superseded by this Ordinance shall be treated and held as remaining in force for the purpose of sustaining any and all proper actions, suits, proceedings and prosecutions, for the enforcement of such penalty, liability, or right, and for the purpose of sustaining any judgment, decree or order which can or may be rendered, entered, or made in such actions, suits or proceedings, or prosecutions imposing, inflicting, or declaring such penalty or liability or enforcing such right, and shall be treated and held as remaining in force for the purpose of sustaining any and all proceedings, actions, hearings, and appeals pending before any court or administrative tribunal. Section 13. Publication. The Town Clerk is ordered to publish this Ordinance by posting notice of adoption of this Ordinance on final reading by title in at least three public places within the Town and posting at the office of the Town Clerk, which notice shall contain a statement that a copy of the ordinance in full and a statement that a complete copies of the 2020 Model Traffic Code adopted by reference are available for inspection for public inspection in the office of the Town Clerk during normal business hours and which notice shall contain the penalty clauses in full. [SIGNATURE PAGE FOLLOWS] Ord. 21-08 Adopting 2020 MTC [6/22/21] Page 12 of 12 INTRODUCED AND ADOPTED ON SECOND READING AND REFERRED TO PUBLIC HEARING on June 8, 2021 and setting such public hearing for June 22, 2021 at the Council Chambers of the Avon Municipal Building, located at 100 Mikaela Way, Avon, Colorado. BY: ATTEST: ____________________________ ___________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk ADOPTED ON SECOND AND FINAL READING on June 22, 2021 BY: ATTEST: ____________________________ ____________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk APPROVED AS TO FORM: ____________________________ Paul Wisor, Town Attorney 970-300-4373 pwisor@garfieldhecht.com TO: Honorable Mayor Smith Hymes and Council members FROM: Paul Wisor, Town Attorney RE: Ordinance 21-05 – Concerning the Management of Plastic Products DATE: June 13, 2021 SUMMARY: Proposed Ordinance 21-05 seeks to codify certain efforts to manage the consumption of plastics with the Town of Avon. First, Ordinance 21-05 amends Section 8.38.020 of the Avon Municipal Code (the “Code) to alter the definition of “Reusable Bag” to ensure reusable bags utilized in Avon are truly reused. Second, Ordinance 21-05 prohibits the use of expanded polystyrene food containers by retail food establishments. This ban on expanded polystyrene takes effect January 1, 2024. Ordinance 21-05 is presented to Council in light of the passage of HB-21-1162, which is discussed further below. BACKGROUND: In order to fully understand the purpose for Ordinance 21-05, it is necessary to review existing state law, previous ordinances considered by Council as well as legislation recently passed by the Colorado General Assembly. Local Preemption - §25-17-104, C.R.S. Since 1989, Colorado law provided “no unit of local government shall require or prohibit the use or sale of specific types of plastic materials or products or restrict or mandate containers, packaging, or labeling for any consumer products.” This prohibition has prevented most municipalities from regulating plastics within their respective jurisdictions. Plastic Bags Notwithstanding the prohibition found in §25-17-104, C.R.S., in October of 2017, the Town Council adopted Ordinance 17-08, which promoted the use of reusable bags by prohibiting disposable plastic bags and requiring a charge for the use of disposable paper bags at grocers and other retailers. Town Council adopted Ordinance 17-08 in order to address the environmental and health problems associated with such use, and would relieve Town taxpayers of the costs incurred by the Town in conjunction therewith. Ordinance 17-08 permits and encourages the use of reusable bags as an alternative to disposable plastic bags. Pursuant to Ordinance 17-08, Section 8.38.020 of the Avon Municipal Code defines “Reusable Bag” as follows: 1.Is designed and manufactured to withstand repeated uses over a period of time. 2 2.Is made from a material that can be cleaned and disinfected regularly; 3.Is at least two and one-fourth (2.25) mils thick if made from plastic; and 4.Has the capability of carrying a minimum of eighteen (18) pounds. Recently, the Town learned a local retailer is proposing to use a plastic bag that purportedly meets the criteria above. While the plastic bag in question meets the letter of the law, it does not meet the spirit or intended purpose of 17-08 as the plastic bag would likely not be considered reusable by most consumers and will likely be discarded after a single use. Therefore, Town Council provided direction to amend the Avon Municipal Code so plastic bags will not qualify as a “Reusable Bag.” Page 2 of 3 Expanded Polystyrene. Since 2017, taking action to reduce the use of polystyrene-based disposable food service ware by food vendors in Avon has been a priority of Council. Reduction of polystyrene is also an identified goal with the Climate Action Plan for the Eagle County Community. In 2017 Council held two work sessions on the topic and conducted outreach to the Avon business community. Council renewed its efforts in 2019 by holding another working session and conducting additional outreach to the business community. Ultimately, Council adopted Ordinance 19-11, which would have banned the use of expanded polystyrene by food vendors serving prepared food. Ordinance 19-11 was condition on the passage of SB 20-252, which would have removed the prohibition on local government regulation of plastics found in §25-17-104, C.R.S. The General Assembly ultimately failed to pass SB 20-252, and Ordinance 19-11 did not take effect. HB 21-1162 In light of the failure of SB 20-252, HB 21-1162 was introduced during the 2021 legislative session. Though it took many different forms during the legislative process, the General Assembly approved HB 21-1162, which achieved three main goals: 1) it removes the prohibition on local government regulation of plastics beginning July 1, 2024; 2) phases in a plastic bag fee in 2023 and bans plastic bags in 2024; and 3) bans the use of expanded polystyrene food containers in 2024 with an indefinite grace period for polystyrene products in the possession of retail food establishments as of January 1, 2024. ORDINANCE 21-05: Ordinance 21-05 amends the Town’s definition of “Reusable Bag” as part of its effort to limit plastic bags in Avon. Specifically, Ordinance 21-05 adopts the definition of Reusable Bag found in HB 21-1162 which provides: •Is designed, manufactured, for at least one hundred twenty-five uses •Can carry at least twenty-two pounds over a distance of one hundred seventy-five feet; •Has stitched handles; and •Is made of cloth, fiber or other fabric or a recycled material such as polyethylene terephthalate. It is believed this revised definition will guard against the use of bags that may technically have fit the previous definition of “Reusable Bag” but which bags would likely have been treated as regular plastic bags and discarded after one use. Second, Ordinance 21-05 adopts the provisions found in HB 21-1162 which prohibits retail food establishments from using expanded polystyrene to serve ready to eat food. “Ready-to-eat” food means food that is cooked or otherwise prepared in advance for immediate consumption. This provision will take effect January 1, 2024. Beginning July 1, 2024, the Town may impose more stringent restrictions than set forth in HB 21-1162. FINANCIAL CONSIDERATIONS: There is no financial impact to the Town. RECOMMENDATION: Staff recommends adoption of Ordinance 21-05. Page 3 of 3 PROPOSED MOTION: Ordinance 21-05: “I move to approve on First Reading Ordinance 21-05, amending certain portions of Section 8.38.020 of the Code, enacting Chapter 8.50 – Prohibition On Use of Expanded Polystyrene Food Containers, and setting a public hearing for second reading on July 13, 2021.” Paul Wisor ATTACHMENTS: Attachment A: Ordinance 21-05 Attachment B: Background Report of Emily Myler June 14 Ord 21-05 Management of Plastic Products Page 1 of 7 ORDINANCE NO. 21-05 CONCERNING THE MANAGEMENT OF PLASTIC PRODUCTS WHEREAS, pursuant to §31-15-103 and §31-15-104, C.R.S. and pursuant to the home rule powers of the Town of Avon (“Town”), the Town Council has the power to make and publish ordinances necessary and proper to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience of its inhabitants; and WHEREAS, in October of 2017, the Town Council adopted Ordinance 17-08, which promoted the use of reusable bags by prohibiting disposable plastic bags and requiring a charge for the use of disposable paper bags at grocers and other retailers which would help address the environmental and health problems associated with such use, would relieve Town taxpayers of the costs incurred by the Town in conjunction therewith, and would be in the best interest of the public health, safety and welfare of the citizens of the Town; and WHEREAS, in promoting the use of reusable bags, Ordinance 17-08 specifically defines the term “reusable bag” as a bag that: 1. Is designed and manufactured to withstand repeated uses over a period of time. 2 2.Is made from a material that can be cleaned and disinfected regularly; 3. Is at least two and one-fourth (2.25) mils thick if made from plastic; and 4. Has the capability of carrying a minimum of eighteen (18) pounds. WHEREAS, an Avon retailer has proposed introducing a new type of reusable plastic bag to be provided to patrons at no cost to carry purchased items; and WHEREAS, the proposed new reusable plastic bags are made of 2.25 mil thick plastic, purportedly can be reused up to 125 times, carry 18 pounds, and can be cleaned and disinfected regularly in compliance with Ordinance 17-08; and WHEREAS, Town Council and Town staff have examined the proposed resusable plastic bags, and have determined such bags are unlikely to be reused and are likely to be treated as traditional plastic bags, including being disposed of in a manner that creates they precise environmental and health impacts Ordinance 17-08 seeks to avoid; and WHEREAS, the Town Council finds that amending the definition of “reusable bag” to more clearly clarify such bags shall not be disposed of like traditional plastic bags will achieve the overall goals of Ordinance 17-08 and will promote the health, safety and general welfare of the Avon community; and WHEREAS, polystyrene foam is a petroleum-based, lightweight plastic material commonly used as food service ware by retail food vendors operating in the Town of Avon; and ATTACHMENT A: ORDINANCE 21-05 Ord 21-05 Management of Plastic Products Page 2 of 7 WHEREAS, polystyrene foam, which means and includes blown polystyrene and expanded and extruded foams (sometimes incorrectly called StyrofoamTM, a Dow Chemical Company trademarked form of polystyrene foam insulation) that are thermoplastic petrochemical materials utilizing a styrene monomer and processed by any number of techniques, including, but not limited to, fusion of polymer spheres (expandable bead polystyrene), injection molding, foam molding, and extrusion-blow molding (extruded foam polystyrene), has also become a problematic environmental pollutant given its non-biodegradability and nearly non-reusable nature; and WHEREAS, there is no economically feasible means of recycling polystyrene foam locally; and WHEREAS, polystyrene foam is a common pollutant that fragments into small, non- biodegradable pieces that are difficult to clean up and are ingested by aquatic life and other wildlife; and WHEREAS, effective ways to reduce the negative environmental impacts of disposable food service ware include reusing or recycling food service ware and using compostable materials made from renewable resources such as paper, cardboard, corn starch, potato starch, and/or sugarcane; and WHEREAS, the Town desires to restrict the use by food vendors of polystyrene foam disposable food service ware; and WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply with the requirement of Section 6.5(d) of the Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to present testimony and evidence and that approval of this Ordinance on first reading does not constitute a representation that the Town Council, or any member of the Town Council, has determined to take final action on this Ordinance prior to concluding the public hearing on second reading. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO the following: Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. Amendment to Section 8.38.020 – Definition of Reusable Bag. Section 8.38.020 is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: Reusable bag: a bag that: 1.Is designed, manufactured, for at least one hundred twenty-five uses to withstand repeated uses over a period of time. Ord 21-05 Management of Plastic Products Page 3 of 7 2.Is made from a material that can be cleaned and disinfected regularly Can carry at least twenty-two pounds over a distance of one hundred seventy-five feet; 3. Is at least two and one-fourth (2.25) mils thick if made from plastic Has stitched handles; and 4. Has the capability of carrying a minimum of eighteen (18) pounds Is made of cloth, fiber or other fabric or a recycled material such as polyethylene terephthalate. Section 3. Addition of Chapter 8.40 to Title 8 of the Avon Municipal Code. Chapter 8.50, “Prohibition on Use of Expanded Polystyrene Food Containers” is added to Title 8, “Health and Safety,” of the Avon Municipal Code to read as set forth in Exhibit A: Addition of Chapter 8.50 to Title 8 of the Avon Municipal Code, attached hereto. Section 4. Severability. If any provision of this Ordinance, or the application of such provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. The Town Council hereby declares that it would have passed this Ordinance and each provision thereof, even though any one of the provisions might be declared unconstitutional or invalid. As used in this Section, the term “provision” means and includes any part, division, subdivision, section, subsection, sentence, clause or phrase; the term “application” means and includes an application of an ordinance or any part thereof, whether considered or construed alone or together with another ordinance or ordinances, or part thereof, of the Town. Section 5. Effective Date. This Ordinance shall take effect thirty days after the date of final passage in accordance with Section 6.4 of the Avon Home Rule Charter. Section 6. Safety Clause. The Town Council hereby finds, determines and declares that this Ordinance is promulgated under the general police power of the Town of Avon, that it is promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The Town Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. Section 7. No Existing Violation Affected. Nothing in this Ordinance shall be construed to release, extinguish, alter, modify, or change in whole or in part any penalty, liability or right or affect any audit, suit, or proceeding pending in any court, or any rights acquired, or liability incurred, or any cause or causes of action acquired or existing which may have been incurred or obtained under any ordinance or provision hereby repealed or amended by this Ordinance. Any such ordinance or provision thereof so amended, repealed, or superseded by this Ordinance shall be treated and held as remaining in force for the purpose of sustaining any and all proper actions, suits, proceedings and prosecutions, for the enforcement of such penalty, liability, or right, and for the purpose of sustaining any judgment, decree or order which can or may be rendered, entered, or made in such actions, suits or proceedings, or prosecutions imposing, inflicting, or declaring such penalty or liability or enforcing such right, and shall be treated and held as Ord 21-05 Management of Plastic Products Page 4 of 7 remaining in force for the purpose of sustaining any and all proceedings, actions, hearings, and appeals pending before any court or administrative tribunal. Section 8. Codification of Amendments. The codifier of the Town’s Municipal Code, Colorado Code Publishing, is hereby authorized to make such numerical and formatting changes as may be necessary to incorporate the provisions of this Ordinance within the Avon Municipal Code. The Town Clerk is authorized to correct, or approve the correction by the codifier, of any typographical error in the enacted regulations, provided that such correction shall not substantively change any provision of the regulations adopted in this Ordinance. Such corrections may include spelling, reference, citation, enumeration, and grammatical errors. Section 9. Publication. The Town Clerk is ordered to publish this Ordinance in accordance with Chapter 1.16 of the Avon Municipal Code. [SIGNATURE PAGE FOLLOWS] Ord 21-05 Management of Plastic Products Page 5 of 7 INTRODUCED AND ADOPTED ON FIRST READING AND REFERRED TO PUBLIC HEARING on June 22, 2021 and setting such public hearing for July 13, 2021 at the Council Chambers of the Avon Municipal Building, located at One Hundred Mikaela Way, Avon, Colorado. BY: ATTEST: ____________________________ ____________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk ADOPTED ON SECOND AND FINAL READING on July 13, 2021. BY: ATTEST: ____________________________ ____________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk APPROVED AS TO FORM: ____________________________ Paul Wisor, Town Attorney Ord 21-05 Management of Plastic Products Page 6 of 7 EXHIBIT A: ADDITION OF CHAPTER 8.50 TO TITLE 8 OF THE AVON MUNICIPAL CODE CHAPTER 8.50 PROHIBITION ON USE OF EXPANDED POLYSTYRENE FOOD CONTAINERS Section 8.50.010 Definitions. Section 8.50.020 Prohibited use of expanded polystyrene food containers. Section 8.50.030 Exemptions. Section 8.50.040 Violation and Penalties. 8.50.010 DEFINITIONS. For the purposes of this chapter, the following terms have the following meanings: (a) “Container” means a receptacle upon which or inside which food may be placed for consumption, whether or not the receptacle can be fully closed. Container includes hinged food containers, plates, bowls, cups, and trays. (b) “Expanded Polystyrene” means and includes blown polystyrene commonly known as called StyrofoamTM, and any other expanded or extruded foam consisting of thermoplastic petrochemical materials utilizing a styrene monomer and processed by techniques that may include: 1) For expandable bead polystyrene, fusion of polymer spheres; 2) Injection Molding; 3) Foam molding; and 4) For extruded foam polystyrene, extrusion blow molding. (c) “Food” means any raw, cooked, or processed edible substance, ice, beverage, or indgrediebt used or intended for use or for sale, in whole or in part, for human consumption. Food does not include a drug, as that term is defined in §25-5-402(9), C.R.S., as amended. (d) “Ready-to-eat” means food that is cooked or otherwise prepared in advance for immediate consumption. (f) "Retail food establishment” has the same meaning as set forth in §25-4-1602(14), C.R.S., as amended, except retail food establishment does not include farmers markets and roadside markets as described in §25-4-1602(14)(j), C.R.S., as amended. (g) “School” has the same meaning as set forth in §23-3.9-101(6), C.R.S., as amended. 8.50.020 Prohibited use of expanded polystyrene food containers. (a) Except as provided in subsection (b), effective January 1, 2024, a retail food establishment shall not distribute an expanded polystyrene product for use as a container for ready-to-eat food in the Town. (b) If a retail food establishment purchased expanded polystyrene products before January 1, 2024, the retail food establishment may distribute any remaining inventory of the expanded polystyrene products then purchased for use as containers for ready-to-eat food in the Town until the inventory is depleted. Ord 21-05 Management of Plastic Products Page 7 of 7 8.50.030 EXEMPTIONS. The following distribution of polystyrene product shall be exempt from this Section 8.50: (a) Distribution of a polystyrene product that is regulated as a drug, medical device or dietary supplement by the Food and Drug Administration n the United States Department of Health and Human Services under the “Federal Food, Drug and Cosmetic Act 21 U.S.C. Sec 321 est seq., as amended; and (b) Distribution of a polystyrene product by a school. 8.50.040 VIOLATIONS AND PENALTIES. Any person violating any of the provisions of this Chapter shall be deemed to have committed a civil infraction for each and every day or portion thereof during which any infraction is committed, continued or permitted and shall be subject to the penalties contained in Chapter 1.09 of this Code. 970-748-4061 emyler@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Emily Myler, General Government Intern RE: Walmart Reusable Plastic Bags and HB21-1162 DATE: June 14, 2021 SUMMARY: In January of 2021, Staff learned that Walmart Supercenter #1199, located at 171 Yoder Ave in Avon, CO, is planning to introduce a new type of reusable plastic bag which will be provided to patrons at no cost to carry purchased items. The bags are made of 2.25 mil thick plastic, and Walmart states that they can be reused up to 125 times, can carry 18 pounds and can be cleaned and disinfected regularly. As described, the proposed plastic bags meet the standards of a reusable bag outlined in Avon’s Municipal Code, Chapter 8.38 [Attachment 1]. Staff is bringing this matter to Council’s attention because there may be concerns that the proposed reusable bags are similar enough to the previous disposable bags that they are likely to not be reused. This report presents relevant information and options for Council consideration. BACKGROUND: In October 2017, Avon Town Council passed Ordinance 17-08 Adopting a New Chapter 8.38 of Title 8 of the Avon Municipal Code Establishing Disposable Bag Requirements, Including a Paper Bag Fee and Providing for the Collection and Designation of Such Fee. The Chapter outlawed the distribution of disposable plastic bags by retailers and established a $0.10 fee for each disposable paper bag distributed by retailers beginning May 2018. Chapter 8.38 describes its purpose as “to protect the public health, safety and welfare, to address the environmental problems associated with disposable bags, and to relieve the Town taxpayers of the costs imposed upon the Town associated with disposable bags. The intent of the Chapter is to encourage the use of reusable bags” [Section 8.38.010]. On March 27, 2020, the Town Manager issued an order to suspend the $0.10 fee for paper bags in response to the COVID-19 pandemic. The suspension is still in place as of the writing of this report. The current intention is to keep the suspension in place until either the Eagle County COVID-19 Public Health Orders or Avon’s emergency declaration is repealed. ANALYSIS: Peer Community Review: Nine peer communities with ordinances regulating the distribution of disposable bags were examined for this report [see Attachment 2]. Of the nine, six had a definition of “reusable bag” almost the same as Avon’s. These definitions included the requirements that a reusable bag “Is designed and manufactured to withstand repeated uses over a period of time; Is made from a material that can be cleaned and disinfected regularly; Is at least two and one-fourth (2.25) mils thick if made from plastic; and Has the capability of carrying a minimum of eighteen (18) pounds” [Avon Municipal Code, Chapter 8.38,section 8.38.020]. Many other communities added a requirement that the bags must have a lifetime of at least 75 uses. The three remaining communities focus on the material of the bag: Frisco and Breckinridge both require that bags be “made of canvas, woven polypropylene, or similar types of durable materials.” Breckinridge recently excluded all bags made of plastic from this definition, regardless of thickness and durability and Frisco implemented a requirement that plastic bags be made of at least 40 percent recycled material. Telluride requires a reusable bag “that is specifically intended for multiple reuse and is made of cloth, fiber, or other machine washable fabric that is at least 2.25 millimeters thick. Both Steamboat Springs and Frisco have a Walmart store within their boundaries. Frisco is not planning to allow the bags as they are outside the definition of “reusable bag” in their Municipal Code and are not made of any recycled material, as is required of reusable bags. Like Avon, Steamboat Springs’ Code does allow the new bags, but the City was able to reach an agreement with their Walmart location to not use them. ATTACHMENT B: BACKGROUND REPORT Page 2 of 9 FINANCIAL CONSIDERATIONS: The proposed bags would replace the need to provide paper bags at Walmart Superstore #1199 and remit $0.10 per bag to the Town of Avon, impacting the Town’s budget. According to the budget [Attachment 3], The Town collected $73,601 in paper bag fees in 2019. Walmart alone contributed to $28,819 or approximately 39 percent of the total [Attachment 4]. The funds from the paper bag fees are used for various waste-management and sustainability programs including the production and distribution of Town of Avon reusable bags, education on recycling and waste management and infrastructure to reduce waste and increase recycling [Avon Municipal Code, Chapter 8.38, Section 8.38.50]. (Note: As of the writing of this report, the Town has suspended the paper bag fee due to COVID-19. The effects described above will not occur until the time when the Town reinstates the bag fee, which is at this point unknown.) OPTIONS: 1) Amend Chapter 8.38 of the Avon Municipal Code to include a definition of “reusable bag” that either does not allow plastic bags regardless of thickness, or to requires plastic bags include an amount of recycled material, as exemplified by Breckinridge and Frisco respectively [see Attachment 2]. a) Pros: This option would prevent any increase in waste caused by the introduction of the new Walmart bags. This option would also maintain the paper bag fees collected by the Town from Walmart Superstore #1199. b) Cons: Since the bags are not yet available, Staff can only predict how the public will use them and may not be correct. If the public does reuse the bags as designed, they would be a sustainable and cost-effective alternative to paper bags. 2) Require Walmart Superstore #1199 to change the bags in a way that invites reuse (i.e. including the artwork that will go on the Town’s reusable bags, changing the texture and shape etc.) a) Pro: The option gives the Town an opportunity to help design the bags to be an effective tool for sustainability in Avon. b) Con: Walmart Inc. may not be amenable to changing the bags and the Town would still lose the paper bag fees from Walmart Superstore #1199. The public may still not reuse the bags. 3) Request that Walmart Superstore #1199 not use the bags as Steamboat Springs has done. a) Pro: No changes to the Municipal Code need to be made and the Town will continue to receive paper bag fees from Walmart once the fee resumes. b) Con: Success depends on Walmart Superstore #1199’s willingness to work with the Town and there would be no decrease in paper bag waste. 4) Allow Walmart Superstore #1199 to use the bags as they are. a) Pro: If used as intended, the bags could decrease the use of paper bags and lift the financial burden of buying bags from the consumer. b) Con: If not used as intended, this option would likely increase the plastic waste going to landfill. The Town would also lose the paper bag fees from Walmart Superstore #1199. Page 3 of 9 UPDATES FOR COUNCIL MEETING ON 6/22/2021 Reusable Bag Material Research: Three types of bags are affected by Ordinance 17-08. Paper bags made of virgin or recycled paper, single-use plastic bags which are made of high-density polyethylene (HDPE), and Walmart’s multiple-use plastic bags, which are made of polyethylene terephthalate (PET). There are many studies which compare the lifecycle impact of different bag materials, but there is wide disagreement on what environmental impacts to measure, so conclusions differ. For the most part, researchers have found that the impact of PET bags throughout the bag’s life is lower than that of a single-use HDPE bag, but only if used a certain number of times before disposal. There are different threshold numbers for different studies, but the minimum is 104 uses (or once a week for 2 years). The Walmart bags are designed to surpass this threshold; however, the question remains whether the consumers will want to reuse them that many times based on their look, feel and the ability to replace them at no cost. One note of interest is that paper routinely rated poorly in environmental impact because of the effect of cutting down trees and the energy expended to make them. Most carry bag ordinances place less restriction on paper bags because they take less time to decompose, leading to less waste in landfills. However, most studies find that paper bags release more greenhouse gasses into the atmosphere during decomposition than plastic. This and the resource expenditure to produce paper bags has led many researchers to place them lower in sustainability than even single-use HDPE bags. The Sustainable Packaging Coalition is a U.S organization that brings together experts on packaging sustainability. Their Definition of Sustainable Packaging [Attachment 6] gives guidance on the qualities to promote in carry bags to maximize sustainability: 1. Is beneficial, safe & healthy for individuals and communities throughout its life cycle. 2. Meets market criteria for performance and cost 3. Is sourced, manufactured, transported, and recycled using renewable energy 4. Optimizes the use of renewable or recycled source materials 5. Is manufactured using clean production technologies and best practices 6. Is made from materials healthy throughout the life cycle 7. Is physically designed to optimize materials and energy 8. Is effectively recovered and utilized in biological and/or industrial closed loop cycles Council should consider these criteria when amending Ordinance 17-08 to prevent loopholes like the one Walmart used for its PET bag and ensure only the most environmentally friendly packaging is distributed in town. Thank you, Emily ATTACHMENTS: Attachment 1. Town of Avon, Colorado Ordinance 17-08 Attachment 2. Comparison of Peer Communities’ Reusable Bag Definitions Attachment 3. Town of Avon 2021 Adopted Budget, Section IV, Page 19 Attachment 4: Paper Bag Fees from Walmart in 2019 Attachment 5: Image of Proposed Walmart Reusable Bags Attachment 6: Sustainable Packaging Coalition Definitions of Sustainable Packaging Attachment 7: Spec Sheet of Proposed Walmart Reusable Bags Page 4 of 9 Attachment 1: Town of Avon, Colorado Ordinance 17-08 Page 5 of 9 Attachment 2: Comparison of Peer Communities’ Reusable Bag Definitions Peer Community Reusable Bag Definition Avon Plastic disposable bags not allowed $0.10 fee for disposable paper bags Reusable bag: a bag that: 1. Is designed and manufactured to withstand repeated uses over a period of time; 2. Is made from a material that can be cleaned and disinfected regularly 3. Is at least two and one-fourth (2.25) mils thick if made from plastic; and 4. Has the capability of carrying a minimum of eighteen (18) pounds. Frisco $0.25 fee for paper and plastic disposable bags. Reusable bag: means a bag made of canvas, woven polypropylene, or similar types of durable materials Updated in 2020 to require disposable paper and plastic disposable bags be made of at least 40 percent recycled material Carbondale Disposable plastic bags not allowed $0.20 fee for disposable paper bags Reusable bag means a bag that: (1) Is designed and manufactured to withstand repeated uses over a period of time; (2) Is made from a material that can be cleaned and disinfected regularly; (3) Is at least 2.25 millimeters thick if made from plastic; (4) Has a minimum lifetime of 75 uses; and (5) Has the capability of carrying at least 18 pounds. Vail Disposable plastic bags not allowed $0.10 fee for disposable paper bags REUSABLE BAG: A bag that: A. Is designed and manufactured to withstand repeated uses over a period of time; B. Is made from a material that can be cleaned and disinfected regularly; C. Is at least two and one-fourth (2.25) mils thick if made from plastic; and D. Has the capability of carrying a minimum of eighteen (18) pounds. (Ord. 2(2015) § 1) Telluride Disposable plastic bags not allowed $0.10 fee for disposable paper bags Reusable Carryout Bag means a bag that is specifically intended for multiple reuse and is made of cloth, fiber, or other machine washable fabric that is at least 2.25 millimeters thick. . Boulder $0.10 fee for paper and plastic disposable bags “Reusable Bag” means a bag that is: (a) Designed and manufactured to withstand repeated uses over a period of time; (b) Is made from a material that can be cleaned and disinfected regularly; (c) That is at least 2.25 mil thick if made from plastic; (d) Has a minimum lifetime of 75 uses; and (e) Has the capability of carrying a minimum of 18 pounds. Paper disposable bags must be made of recycled material Aspen Reusable Bag. The term Reusable Bag means a bag that is: Page 6 of 9 Disposable plastic bags not allowed $0.20 fee for disposable paper bags. (a) Designed and manufactured to withstand repeated uses over a period of time; and (b) Is made from a material that can be cleaned and disinfected regularly; and (c) That is at least two and one-quarter (2.25) mil thick if made from plastic; and (d) Has a minimum lifetime of seventy-five (75) uses; and (e) Has the capability of carrying a minimum of eighteen (18) pounds. Breckinridge Plastic bags not allowed $0.10 fee for disposable paper bags REUSABLE BAG: A plastic bag that is at least 2.25 mils thick or a bag made of canvas, woven polypropylene, or similar types of durable materials. Updated in 2021 to not allow plastic bags regardless of thickness and required paper bags be made of at least 40 percent recycled material. Steamboat Springs Disposable plastic bags not allowed $0.20 fee for disposable paper bags The term Reusable Bag means a bag that is: (a) Designed and manufactured to withstand repeated uses over a period of time; and (b) Is made from a material that can be cleaned and disinfected regularly; and (c) That is at least 2.25 mil thick if made from plastic; and (d) Has a minimum lifetime of seventy five uses; and (e) Has the capability of carrying a minimum of eighteen pounds. Dillon (to be implemented) Disposable plastic bags not allowed Fee for disposable paper bags Reusable bag means a bag that is: A. Designed and manufactured to withstand repeated uses over a period of time; B. Is made from a material that can be cleaned and disinfected regularly; C. That is at least two and one-quarter (2.25) mil thick if made from plastic; D. Has a minimum lifetime of at least seventy five (75) uses; and E. Has the capability of carrying a minimum of eighteen (18) pounds. Page 7 of 9 Attachment 3: Town of Avon 2021 Adopted Budget, Section IV, Page 19 Page 8 of 9 3 ,105.80 28,819.00 Attachment 4: Paper Bag Fees from Walmart in 2019 Total Account Business Item Paid Period Due Disposable Paper Bag 2065 Walmart Stores Inc Fee 2,836.40 1/1/2019 2/20/2019 Disposable Paper Bag 2065 Walmart Stores Inc Fee 2,689.70 2/1/2019 3/20/2019 Disposable Paper Bag 2065 Walmart Stores Inc Fee 2,827.80 3/1/2019 4/22/2019 Disposable Paper Bag 2065 Walmart Stores Inc Fee 1,648.80 4/1/2019 5/20/2019 Disposable Paper Bag 2065 Walmart Stores Inc Fee 2,427.80 5/1/2019 6/20/2019 Disposable Paper Bag 2065 Walmart Stores Inc Fee 2,562.20 6/1/2019 7/22/2019 Disposable Paper Bag 2065 Walmart Stores Inc Fee 2,950.30 7/1/2019 8/20/2019 Disposable Paper Bag 2065 Walmart Stores Inc Fee 2,287.20 8/1/2019 9/20/2019 Disposable Paper Bag 2065 Walmart Stores Inc Fee 1,703.60 9/1/2019 10/21/2019 Disposable Paper Bag 2065 Walmart Stores Inc Fee 1,901.60 10/1/2019 11/20/2019 Disposable Paper Bag 2065 Walmart Stores Inc Fee 1,877.80 11/1/2019 12/20/2019 Disposable Paper Bag 2065 Walmart Stores Inc Fee 12/1/2019 1/21/2020 Total for 2019: Page 9 of 9 Attachment 5: Image of Proposed Walmart Reusable Bags Page 10 of 9 Attachment 6: Sustainable Packaging Coalition Definitions of Sustainable Packaging Test Report No. PR100697 Rev. 1 Attachment 7: Spec Sheet of Proposed Walmart Reusable Bags Page 1 of 17 www.nts.com National Technical Systems Main: 714-999-1616 1435 Allec Street Fax: 714-999-1636 Anaheim, CA 92805 Date: SEPTEMBER 17, 2019 Customer: Superbag Operating 9291 Baythorne Drive Houston, TX 777041 Purchase Order Number: 01467800 REUSABLE GROCERY BAG TESTING SPECIFICATION: Senate Bill 270 Reusable Grocery Bags TESTS: Capacity Test, Walking Test, ASTM D6988-Determination of Thickness, Washability, Visual Inspection, XRF for Heavy Metals TEST ITEMS: Date Received: 6/3/2019 Sample Identification: Reusable Small 3 Bag Dimensions: 11.5”x6.5”x20.0” This is to certify that the test samples were subjected to the reusable bag testing according the specification above. See Page 2 for Summary of Test Results. Test data, photographs and equipment list are attached. Kevin Belisario Daniel Robertson Test Report No. PR100697 Rev. 1 Page 2 of 17 Preparer and Technical Reviewer Quality Representative Department Manager This report and the information contained herein represents the results of testing of only those articles/products identified in this document and selected by the client. The tests were performed to specifications and/or procedures approved by the client. National Technical Systems (“NTS”) makes no representations expressed or implied that such testing fully demonstrates efficiency, performance, reliability, or any other characteristic of the articles being tested, or similar products. This report should not be relied upon as an endorsement or certification by NTS of the equipment tested, nor does it present any statement whatsoever as to the merchantability or fitness of the test article or similar products for a particular purpose. This document shall not be reproduced except in full without written approval from NTS. REVISIONS Revision Reason for Revision Date NR Initial Release 6/14/2019 1 Updated visual inspection photo on page 6. Added XRF for heavy metals results on page 12-13. 9/17/2019 SUMMARY OF TEST RESULTS Test Sample Identification Results Visual Inspection Reusable Small 3 Met requirement Thickness Reusable Small 3 Met requirement Capacity Reusable Small 3 Met requirement Walking Reusable Small 3 Met requirement Washability Reusable Small 3 Met requirement XRF for Heavy Metals Reusable Small 3 Met requirement Test Report No. PR100697 Rev. 1 Page 3 of 17 Washability TEST SAMPLE IDENTIFICATION: Reusable Small 3 TEST PROCEDURES: SB270 TEST METHOD VARIATION(S): None SAMPLE PREP PERFORMED BY: N/A TEST(S) PERFORMED BY: K. Belisario TEST PERFORMED AT: 1435 S. Allec St., Anaheim CA 92805 TEST DATE: 6/3/2019 REQUIREMENT There shall be no physical change or deterioration to product after being washed by hand or cleaned with a household cleaner. METHOD Each bag was cleaned with liquid dish soap and water per the bag instructions. The bag was then visually inspected for material degradation. RESULTS No major defects or physical change was observed after being hand washed with a liquid soap and water. SAMPLE IDENTIFICATION Significant defects or physical change observed? RESULT Reusable Small 3 none Met requirement Test Report No. PR100697 Rev. 1 Page 4 of 17 Visual Inspection TEST SAMPLE IDENTIFICATION: Reusable Small 3 TEST PROCEDURES: SB270 TEST METHOD VARIATION(S): None EQUIPMENT USED: See Equipment Page SAMPLE PREP PERFORMED BY: N/A TEST(S) PERFORMED BY: K. Belisario TEST PERFORMED AT: 1435 S. Allec St., Anaheim CA 92805 TEST DATE: 5/28/2019 VISUAL INSPECTION RESULTS Physical Characteristics Results: A. Labeling Results: B. C. D. E. F. Sample Identification: REQUIREMENTS Reusable Small 3 Physical Characteristics: A. Product shall have handles Labeling: B. The name of the manufacturer C. The country where the bag was manufactured D. A statement that the bag is reusable and designed for at least 125 uses. E. If the bag is eligible for recycling in the state, instructions to return the bag to the store for recycling or to another appropriate recycling location. If recyclable in the state, the bag shall include the chasing arrows recycling symbol or the term “recyclable,” consistent with the Federal Trade Commission guidelines use of that term, as updated. F. Label shall be permanently attached and be visible to the consumer. Met requirement Did not meet requirement Not Applicable Comment Yes N/A Yes N/A Yes N/A Yes N/A Yes N/A Yes N/A Test Report No. PR100697 Rev. 1 Page 5 of 17 Visual Inspection - Photos Figure 1 Figure 2 Test Report No. PR100697 Rev. 1 Page 6 of 17 Visual Inspection - Photos Figure 3 Test Report No. PR100697 Rev. 1 Page 7 of 17 Capacity Test TEST SAMPLE IDENTIFICATION: Reusable Small 3 TEST PROCEDURES: SB 270 TEST METHOD VARIATION(S): None EQUIPMENT USED: See Equipment Page TEST(S) PERFORMED BY: J. Juarez TEST PERFORMED AT: 1435 S. Allec St., Anaheim CA 92805 TEST DATE: 5/28/2019 REQUIREMENT A capacity of less than 15 liters (15,000cm3) is cause for rejection. METHOD Fill reusable bag with granular material. Using a graduated container measure the volume of material in the plastic bag in liters. RESULTS SAMPLE IDENTIFICATION Bag was able to hold and withstand 15 liters of material? RESULT Reusable Small 3 Yes Met requirement Test Report No. PR100697 Rev. 1 Page 8 of 17 Capacity Test – Photos Figure 4 Thickness TEST SAMPLE IDENTIFICATION: Reusable Small 3 TEST PROCEDURES: SB 270, ASTM D6988-13 Method A TEST METHOD VARIATION(S): None EQUIPMENT USED: See Equipment Page TEST(S) PERFORMED BY: K. Belisario TEST PERFORMED AT: 1435 S. Allec St., Anaheim CA 92805 TEST DATE: 5/28/2019 REQUIREMENT Film thickness shall be at least 2.25 mils for plastic bags. METHOD Determination of the thickness of (1) plastic bag was accomplished using a Mitutoyo dial micrometer. Anvil and spindle surfaces were checked and cleaned for contaminating substances and adjusted to the zero point. The plastic bag was carefully placed between the spindle and the anvil. The thickness reading was recorded and another measurement was taken at different location for a total of three measurements per sample. The zero point was verified after each measurement. Test Report No. PR100697 Rev. 1 Page 9 of 17 RESULTS The average of 3 measurements was reported for each bag. See results below. SAMPLE IDENTIFICATION AVERAGE THICKNESS (mils) RESULT Reusable Small 3 2.28 Met requirement Test Report No. PR100697 Rev. 1 Page 10 of 17 Walking Test TEST SAMPLE IDENTIFICATION: Reusable Small 3 TEST PROCEDURES: SB 270 TEST METHOD VARIATION(S): None EQUIPMENT USED: See Equipment Page TEST(S) PERFORMED BY: K. Belisario TEST PERFORMED AT: 1435 S. Allec St., Anaheim CA 92805 TEST DATE: 5/31/2019 REQUIREMENT There shall be no tearing of the bag after 125 uses over a distance of 175 feet. METHOD Measure and record thickness of the specimen at the center. Place 22lbs mass (river rocks) in the bottom of the reusable bag. Set bag on test machine used to simulate walking motion over 175 feet for 125 trips. Record any deterioration of the bag after each trip. RESULTS Testing discontinued after 125 trips. No evidence of the handles tearing or significant damage to the reusable bags was observed. All reusable grocery bags met the requirement for the walking test. SAMPLE IDENTIFICATION Damage Observed RESULT Reusable Small 3 none Met requirement Test Report No. PR100697 Rev. 1 Page 11 of 17 Walking Test - Photos Figure 5 Figure 6 Test Report No. PR100697 Rev. 1 Page 12 of 17 X-RAY FLUORESCENCE (XRF) REFERENCE N/A TEST SPECIMENS Three (3) bag samples REQUIREMENT N/A SUMMARY See full results below SAMPLE PREPARATION DETAILS N/A SAMPLE PREPARATION PERFORMED BY N/A PREPARATION DATE N/A TEST MODIFICATIONS N/A TEST CONDITIONS N/A TEST PERFORMED BY DDP, 5 North Park Drive Hunt Valley, MD 21030 TEST DATE September 16, 2019 EQUIPMENT USED WC051512 RESULTS: Each sample was scanned using a Niton 3XLt XRF gun. The sample was scanned in plastics mode, with each individual scan being performed for sixty (60) seconds. A total of three (3) scans was taken as follows: • Scan 1 – The entirety of one (1) “side” of the bag was scanned, with the gun being moved slowly across the surface of the bag throughout the scan in an effort to encompass as much of the bag surface as possible. • Scan 2 – A spot scan was taken focused at one (1) “random” location of the sample containing no printed material. • Scan 3 – A spot scan was taken of the green print material. The table below summarizes the results obtained as a result of the XRF analysis. The analysis below shows only results of the heavy metals detected. Results of XRF Analysis (ppm) Test Report No. PR100697 Rev. 1 Page 13 of 17 Sample Scan Sn Pb Zn Fe Ti 1 1 134 < LOD* 27.0 52.7 9,280 2 121 < LOD 23.0 74.6 9,730 3 132 6.32 28.2 93.5 10,500 2 1 133 < LOD 34.6 77.2 7,210 2 122 < LOD 24.0 57.9 10,200 3 123 < LOD 28.4 67.4 9,810 3 1 105 < LOD 38.6 51.2 9,480 2 133 < LOD 20.0 55.0 9,440 3 127 < LOD 21.6 57.4 9,820 * - LOD signifies Limit of Detection Test Report No. PR100697 Rev. 1 Page 14 of 17 EQUIPMENT LIST Test Equipment List Calibration Abbreviations CAL calibrated NCR no calibration required ASTM D6988 Thickness Asset Number Manufacturer Description M/N S/N Range Cal Interval (Months) Cal Due WC058860 Rotronic HygroPalm 22 HygroPalm 22 60222853 Indication Only - Use with Calibrated Sensor/Probe NCR NCR WC058866 Rotronic HygroClip2 Probe HC2-S 60264464 0 to 100°C ±0.1 C, 0-100%RH ±0.8 %RH Cal Points- Temperature:25°C and 50°C Humidity: 20% and 80% 12 09/30/2019 WC058886 Thermoelectric Cooling (TECA) Conditioning Cabinet TC-3300 33001-000 Use with Calibrated Probe 23±2C, 50±5%RH NCR NCR WC058887 Rotronic HygroFlex HF5 HF5 0060443724 See Rotronic HC2-S Probe ID WC058866 NCR NCR WC058962 Mitutoyo Digimatic Indicator ID- C112EX 11012914 0-0.5inch span +/- 0.0001 12 12/31/2019 WC059034 Rotronic HygroClip2 Probe HC2-S 20032361 0 to 100°C ±0.1 C, 0-100%RH ±0.8 %RH 12 10/31/2019 SB270 / Prop 67 - Capacity Test Asset Number Manufacturer Description M/N S/N Range Cal Interval (Months) Cal Due WC058860 Rotronic HygroPalm 22 HygroPalm 22 60222853 Indication Only - Use with Calibrated NCR NCR Test Report No. PR100697 Rev. 1 Page 15 of 17 Sensor/Probe WC058866 Rotronic HygroClip2 Probe HC2-S 60264464 0 to 100°C ±0.1 C, 0-100%RH ±0.8 %RH Cal Points- Temperature:25°C and 50°C Humidity: 20% and 80% 12 09/30/2019 WC058886 Thermoelectric Cooling (TECA) Conditioning Cabinet TC-3300 33001-000 Use with Calibrated Probe 23±2C, 50±5%RH NCR NCR WC058887 Rotronic HygroFlex HF5 HF5 0060443724 See Rotronic HC2-S Probe ID WC058866 NCR NCR WC059034 Rotronic HygroClip2 Probe HC2-S 20032361 0 to 100°C ±0.1 C, 0-100%RH ±0.8 %RH 12 10/31/2019 Test Report No. PR100697 Rev. 1 EQUIPMENT LIST SB270 / Prop 67 - Simulated Walking Test Asset Number Manufacturer Description M/N S/N Range Cal Interval (Months) Cal Due WC058860 Rotronic HygroPalm 22 HygroPalm 22 60222853 Indication Only - Use with Calibrated Sensor/Probe NCR NCR WC058866 Rotronic HygroClip2 Probe HC2-S 60264464 0 to 100°C ±0.1 C, 0-100%RH ±0.8 %RH Cal Points- Temperature:25°C and 50°C Humidity: 20% and 80% 12 09/30/2019 WC058886 Thermoelectric Cooling (TECA) Conditioning Cabinet TC-3300 33001-000 Use with Calibrated Probe 23±2C, 50±5%RH NCR NCR WC058887 Rotronic HygroFlex HF5 HF5 0060443724 See Rotronic HC2-S Probe ID WC058866 NCR NCR WC058974 Futek 25 lb Load Cell LRF400 553132 0-25lb ±0.05% 12 10/12/2019 WC058986 Mitutoyo Digital Caliper CD-6"" CSX 06233912 0-150mm (0-6 inch) +/-0.001"" 12 12/31/2019 WC059034 Rotronic HygroClip2 Probe HC2-S 20032361 0 to 100°C ±0.1 C, 0-100%RH ±0.8 %RH 12 10/31/2019 Visual Inspection Asset Number Manufacturer Description M/N S/N Range Cal Interval (Months) Cal Due WC058860 Rotronic HygroPalm 22 HygroPalm 22 60222853 Indication Only - Use with Calibrated Sensor/Probe NCR NCR WC058866 Rotronic HygroClip2 Probe HC2-S 60264464 0 to 100°C ±0.1 C, 0-100%RH ±0.8 %RH Cal Points- Temperature:25°C and 50°C Humidity: 20% and 80% 12 09/30/2019 WC058886 Thermoelectric Cooling (TECA) Conditioning Cabinet TC-3300 33001-000 Use with Calibrated Probe 23±2C, 50±5%RH NCR NCR WC058887 Rotronic HygroFlex HF5 HF5 0060443724 See Rotronic HC2-S Probe ID WC058866 NCR NCR WC059034 Rotronic HygroClip2 Probe HC2-S 20032361 0 to 100°C ±0.1 C, 0-100%RH ±0.8 %RH 12 10/31/2019 Page 15 of 17 Test Report No. PR100697 Rev. 1 EQUIPMENT LIST Material Asset Number Manufacturer Description M/N S/N Range Cal Interval (Months) Cal Due WC058866 Rotronic HygroClip2 Probe HC2- S 60264464 0 to 100°C ±0.1 C, 0- 100%RH ±0.8 %RH Cal 12 09/30/2019 Points- Temperature:25°C and 50°C Humidity: 20% and 80% WC058886 Thermoelectric Cooling (TECA) Conditioning Cabinet TC- 3300 33001-000 Use with Calibrated Probe 23±2C, 50±5%RH NCR NCR WC058887 Rotronic HygroFlex HF5 HF5 0060443724 See Rotronic HC2-S Probe ID WC058866 NCR NCR WC059034 Rotronic HygroClip2 Probe HC2- S 20032361 0 to 100°C ±0.1 C, 0- 100%RH ±0.8 %RH 12 10/31/2019 XRF Asset Number Manufacturer Description M/N S/N Range Cal Interval (Months) Cal Due WC051512 Thermo Fisher Scientific X-ray Gun, Printer and STand XI3T700 30859 n/a calibrate before use calibrate before use Test Report No. PR100697 Rev. 1 ***END OF REPORT** 970-748-4023 cmcwilliams@avon.org Staff Review Recommendation TO: Honorable Mayor Smith Hymes and Council members THRU: Matt Pielsticker, AICP, Planning Director FROM: David McWilliams, AICP, Town Planner RE: Ordinance 21-09 – Approving Code Text Amendments to Chapter 7 of the Avon Municipal Code DATE: June 14, 2021 STAFF REPORT OVERVIEW: This staff report contains one application for consideration by the Town Council: Code Text Amendment (“CTA”) for various sections of Avon Development Code (“ADC”). SUMMARY: Town Council directed staff to initiate various CTAs and staff included other sections in need of modification. Best practice includes a yearly review of the ADC to determine if updates or edits are necessary. Attached to this report is draft Ordinance 21-09 with CTA language included, with strike-out indicating language to be deleted and underline indicating language to be adopted. LIST OF PROPOSED CHANGES: The following bullets, with associated ADC sections, are discussed in this report. Additional sections are included in the Ordinance due to removal of cross-references. •Development Plan and Design Review - 7.16.080 and 7.16.090 •Public Facility District wording - 7.20.080(e) •Industrial – Commercial Employment Zone District Wording - Table 7.20 – 13 •Employee housing mitigation clarification - 7.20.100 •Parking and loading language - Table 7.28-2 •Exterior Lighting - 7.28.090 •Sign Code - digital signs and window signs- 7.34 PROCESS: The Planning and Zoning Commission (“PZC”) reviews CTA applications and provides a recommendation to Council after conducting a public hearing. Council acts upon CTA applications through Ordinance, after conducting first and second readings and a public hearing. PZC ACTION: After a work session and a public hearing, staff updated the language of certain sections due to feedback. The PZC voted unanimously (6-0) to recommend Town Council approve the CTA. Since that time, staff included additional sections containing cross-references for modification. Additional dialogue regarding language is welcome from the Town Council. Planning & Zoning Public Hearing Recommendation to Council Town Council First and Second Reading - Ordinance Page 2 of 3 RECOMMENDATION: I recommend that Town Council approve first reading of Ordinance 21-09 ORDINANCE 21-09: RECOMMENDED MOTION: “I move to approve on First Reading Ordinance 21-09, approving Code Text Amendments to Chapter 7 of the Avon Municipal Code, and setting a public hearing for second reading on July 13, 2021.” Design Review into Development Plan- 7.16.080 and 7.16.090: This change incorporates all relevant design review procedures within one section. The design review procedure is slated to be removed because it is never a process independent from development plan. Formatting is also now consistent with other chapters, with listed purpose statements. Combining the sections makes the ADC more approachable. Staff kept the majority of the Development Plan section intact and added applicable language from the Design Plan purposes and review criteria. This way, all the relevant information from the two sections is captured in one. Public Facility District wording 7.20.080(e): This proposed modification clarifies that public employee housing is intended within the district. “Government employee housing and Community Housing” was added to Table 7.24-1, Allowed Uses in 2019 and this modification reinforces that point. This change further clarifies the intent of the Town to develop housing on PF zoned land (Swift Gulch site). Light Industrial – Commercial Wording – Table 7.20 - 13: Accessory Dwelling Units (ADU) are a specific type of development, which is tied to a primary residence. Including the phrase “ADU” in this section is contrary to its universally understood definition. Also, staff removed “Employment Zone District” within the name, as it only appears in this table. Parking and loading language - Table 7.28-2: Current language is unclear for parking requirements of multi-family development (i.e. 2 bedroom requirements) and needs to be continually clarified by staff to potential applicants. Based upon discussion with the PZC, staff proposes additional “Dwelling, Multi-Family (Short-Term Rental Overlay) with Parking Management Plan” and “Accommodation” categories to differentiate and address common development types. Multi-family construction is now proposed to be broken down by bedroom count, removing the 2,500 sq. ft. threshold as directed by the PZC. Exterior Lighting - 7.28.090: This amendment ties the lighting code from Chapter 15.30 (building) to Chapter 7 (development). This will make enforcement easier during the application process and during any code compliance cases, but policy remains the same. Fence Design Standards – 7.28.080(b): Staff suggests the inclusion of size and screen mesh requirements, which would diminish Alternative Equivalent Compliance applications processed by staff and heard by the PZC. CODE TEXT ANALYSIS RECOMMENDED MOTION Page 3 of 3 Sign code update- illuminated signs and window signs- 7.34: Town Council directed staff to limit digital signs (for example, menu boards) on private property. Currently, “digital display” signs are permitted as freestanding or wall-mounted signs on arterial streets. The change allows only the Town of Avon to install them, for government use. Also, a small change in window signs is proposed to clarify allowances for illuminated signs. According to the ADC Sec. 7.16.040(c), Review Criteria, the Town Council shall use the following review criteria as the basis for recommendations and decisions on applications to amend the text of the Development Code: 1.The text amendment promotes the health, safety and general welfare of the Avon community; 2.The text amendment promotes or implements the goals and policies of the Avon Comprehensive Plan;3.The text amendment promotes or implements the purposes stated in the Development Code; or 4.The text amendment is necessary or desirable to respond to changed conditions, new planning concepts or other social or economic conditions. Staff Response: The Application addresses Town needs for administrative ease and maintains the current aesthetic of the Town better than the current ADC. It promotes the health, safety and welfare of the community and implements goals and policies of the Comprehensive Plan and Avon Community Housing Plan. Comprehensive Plan goals and policies relating to the CTA are below: Goal A.1: Promote a compact community form. Policy F.1.8: Promote Town Center development that minimize automobile travel. Goal G.3: Discourage air, water, light, and noise pollution. Policy G.3.2: Enforce the use of “Dark Sky” compliant fixtures. The CTA implements the ADC purposes, including (l): “Promote architectural design which is compatible, functional, practical and complimentary checking to Avon's sub-alpine environment”. Attachment: Ordinance 21-09 REVIEW CRITERIA: CODE TEXT AMENDMENT Ord 21-09 Chapter 7 Amendments July 13, 2021 Page 1 of 16 ORDINANCE NO. 21-09 APPROVING CODE TEXT AMENDMENTS TO CHAPTER 7 OF THE AVON MUNICIPAL CODE WHEREAS, pursuant to C.R.S. §31-15-103 and §31-15-104, and pursuant to the home rule powers of the Town of Avon (“Town”), the Town Council has the power to make and publish ordinances necessary and proper to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience of its inhabitants; and WHEREAS, Town Council initiated a code text amendment application for changes to sections of Chapter 7 including: Violations - §7.04.160; Development Review Procedures and Review Authority - Table 7.16-1; General procedures and requirements - §7.16.020(c)(2); Design Review and Development Plan - §7.16.080 and §7.16.090; Review Procedures - §7.16.150; Public Facilities (PF)- §7.20.080(e); Industrial – Commercial Zone District - Table §7.20-13; Employee housing mitigation - §7.20.100; Restaurant - §7.24.060(g)(1); Off-Street Parking - Table §7.28-2; Parking and loading - §7.28.020(g)(iv); Fence Design Standards - §7.28.080(b); Exterior Lighting - §7.28.090(c)(6); Definitions - §7.34.010(b); Permitted Signs Generally - §7.34.010(d); Lighting - §7.34.010(e)(5); Master Sign Programs - §7.34.010(h)(2); Prohibited signs - §7.34.010(i); and WHEREAS, the code text amendments are in conformance with Avon Comprehensive Plan Goal A.1 and 3.4 and Policies F.1.8 and G.3.2; and WHEREAS, the code text amendments will help implement the Avon Community Housing Plan; and WHEREAS, the Town Council finds that the code text amendments will promote the health, safety and general welfare of the Avon community; and WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply with the requirement of Section 6.5(d) of the Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to present testimony and evidence and that approval of this Ordinance on first reading does not constitute a representation that the Town Council, or any member of the Town Council, has determined to take final action on this Ordinance prior to concluding the public hearing on second reading. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO the following: Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. ATTACHMENT A Ord 21-09 Chapter 7 Amendments July 13, 2021 Page 2 of 16 Section 2. Amendment to Chapter 7.04.160 - Violations. Chapter 7.04.160 is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: (c) Transfer or Sale of Interest Prior to Final Subdivision Approval. It is unlawful for any person to transfer or sell or agree to sell any lot, tract, parcel, site, separate interest (including a leasehold interest), condominium interest, timeshare estate or any other division within a subdivision within the Town until such subdivision has been approved in writing by the Town Council and a plat thereof recorded in the office of the Eagle County Clerk and Recorder. A written agreement to sell a condominium unit prior to final subdivision approval shall not constitute a violation of this Section if: the written agreement is expressly conditioned upon approval of the Town Council of the final subdivision plat and all related documents, the preliminary plan has been approved by the Town Council, the building or property to be subdivided has received design review development plan approval (if applicable), the written agreement provides that the prospective buyer or purchaser is entitled to terminate the written agreement and is entitled to receive the full amount of any monies deposited and the form of the written agreement has received approval by the Town Attorney prior to using the form of such written agreement with a prospective purchaser or buyer. Section 3. Amendment to Table 7.16-1 - Development Review Procedures and Review Authority. Table 7.16-1 is hereby amended to read as follows with strike-out indicating language to be deleted: Procedure Notice Requirements* Director PZC TC Comprehensive Plan Amendment (§7.16.030) R H-R H-D Code Text Amendment (§7.16.040) R H-R H-D Rezoning (§7.16.050) M R H-R H-D Planned Unit Development (§7.16.060) Administrative PUD D A Minor PUD Amendment M R H-R H-D Lot Split PUD Amendment for Wildridge PUD M R H-R H-D Major PUD M R H-R H-D Ord 21-09 Chapter 7 Amendments July 13, 2021 Page 3 of 16 Amendment Preliminary PUD M R H-R H-D Final PUD M R H H-D Subdivision (§7.16.070) Administrative Subdivision D A Minor Subdivision D A Preliminary Plan M R H-R H-D Final Plan M R H-D Development Plan (§7.16.080) Minor D or R H-D A Major R H-D A Major in Town Core R H-R H-D Design Review (§7.16.090) D or R H-R or H-D H-D or A Special Review Use (§7.16.100) M R H-D A Variance (§7.16.110) M R H-D A Alternative Equivalent Compliance (§7.16.120) R R-D or R A or R-D Right-of-way Vacation (§7.16.130) M R H-D Vested Property Right (§7.16.040) M R H-R H-D Location, Character and Extent (§7.16.150) R H-D A Sign Plan (§7.16.160) Minor D or R H-D A Major R H-D A Appeal (§7.16.160) H-D Annexation (§7.36) M R H-R H-D Ord 21-09 Chapter 7 Amendments July 13, 2021 Page 4 of 16 1041 Permit (§7.40) R H-R H-D Historic and/or Cultural Preservation Designated (§7.50) H-D Section 4. Amendment to Chapter 7.16.020(c)(2) – General procedures and requirements. Chapter 7.16.020(c)(2) is hereby amended to read as follows with strike-out indicating language to be deleted: Referral to Other Agencies. Development applications may be referred to other agencies for review and comment. The Director shall attempt to identify appropriate referral agencies and shall consider the comments from referral agencies as part of the staff review and report. The Planning and Zoning Commission and Town Council may determine that referral of a development application to an agency for review and comment is appropriate where such referral agencies may provide comments relevant to evaluating the development application for compliance with the review criteria. Referral of development applications to other agencies shall provide a minimum time frame for review and comment of fourteen (14) days for development plans, design review, variances, amendments to text of the Development Code and minor subdivisions; and twenty-one (21) days for preliminary subdivision, planned unit development, planned unit development amendments, rezoning and 1041 permits; however, the time frame for review and comment may be extended if the development application presents technical issues which require additional review, if additional information is provided by the applicant or the application is modified. Referral agencies may include, but are not limited to: Section 5. Amendment to Chapter 7.16.150(b) – Review procedures. Chapter 7.16.150(b) is hereby amended to read as follows with strike-out indicating language to be deleted: Applications for location, character and extent shall follow the general review procedures set forth in Section 7.16.020, General Procedures and Requirements. Applications for location, character and extent may be initiated by the owner or the governmental body having jurisdiction over the public facility. Applications for location, character and extent may be combined with other application procedures and submittal requirements, including but not limited to development plan, design review and subdivision. The failure of the PZC and Council to act within sixty (60) days from and after the date of official submission of a complete application to the Town shall be deemed approval of such application. Ord 21-09 Chapter 7 Amendments July 13, 2021 Page 5 of 16 Section 6. Amendment to Chapter 7.16.080 - Development plan. Chapter 7.16.080 is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: The purpose of the development plan review process is to ensure compliance with the development and design standards and provisions of this Development Code. It is designed to encourage quality development reflective of the goals, policies and objectives of the Comprehensive Plan. (a) Purpose. The general purpose of the development plan review process is to ensure compliance with the development and design standards of the Development Code prior to the issuance of a building permit or concurrent with other required permits and to encourage quality development reflective of the goals and objectives of the Avon Comprehensive Plan. Specific purposes of development plan review include, but are not limited to the following: (1) To prevent excessive or unsightly grading of property that could cause disruption of natural watercourses or scar natural landforms; (2) To ensure that the location and configuration of structures, including signs and signage, are visually harmonious with their sites and with surrounding sites and structures and that there shall be conformance to the Comprehensive Plan of the Town; (3) To ensure that the architectural design of structures and their materials and colors are visually harmonious with the Town's overall appearance, with natural and existing landforms and with officially approved development plans, if any, for the areas in which the structures are proposed to be located; and (4) To ensure that plans for the landscaping of property and open spaces conform with adopted rules and regulations and to provide visually pleasing settings for structures on the same site and on adjoining and nearby sites. (ab) Applicability. A development plan shall be required for all new development and any modification to an existing development or development plan. (bc) Development Plan Categories. Categories of development plans are established and defined as follows for the purpose of determining the appropriate development plan review procedure: (1) Major Development Plan. Major development plans include all new building construction over six hundred (600) square feet; (2) Minor Development Plan. Minor development plans include the following: (i) All new building construction six hundred (600) square feet or less; (ii) Modifications to Dumpster locations; (iii) Screen wall modifications; (iv) Landscape modifications, including but not limited to removal of existing vegetation and addition of new vegetation; Ord 21-09 Chapter 7 Amendments July 13, 2021 Page 6 of 16 (v) Deck modifications, including but not limited to additions, new construction and materials or color modifications; (vi) Mechanical equipment modifications; (vii) Modifications to the exterior of an existing building, including but not limited to windows, doors, minor architectural details, colors and materials; (viii) Modifications to approved development plans which result in a ten-percent or less increase to lot coverage; ten-percent or less increase to building height; ten- percent or less increase to the amount of square footage of a land use or structure and does not result in a change in the types of uses in the project; (ix) Modifications to approved development plans which do not change the character of the approved design; and (x) Other similar changes to a structure or property that do not significantly impact the site layout or design of a building. (cd) Review Procedures. The general review procedures described in Section 7.16.020, General procedures and requirements, shall apply to development plan applications. All development plan applications shall also comply with the procedures listed in Section 7.16.090, Design review. Specific additions and modifications to the general review procedures are identified below. (de) Notice and Hearing. PZC shall review and render a decision or recommendation on the development plan application after conducting a public hearing. Town Council shall conduct a public hearing when reviewing a Development Plan applicable in the Town Core. Notice of the public hearing shall be published and posted in accordance with Subsection 7.16.020(d)(1) and mailed notice is not required. The decision of PZC may be appealed to the Town Council pursuant to Section 7.16.160, Appeal. The Director shall not conduct a public hearing for administrative review and decision on development plan applications. (ef) Review Authority. The review authority for a development plan application shall be determined by the subdivision category. (1) Major Development Plan. The Director shall review and provide a recommendation to the PZC on all major development plan applications. The PZC shall render the final decision on a major development plan, unless the application is located within the Town Core. The decision of the PZC may be appealed to the Town Council pursuant to Section 7.16.160, Appeal. If an application is located within the Town Core, the Director shall review and provide a recommendation to the PZC. The PZC shall review and provide a recommendation to the Town Council. The Town Council shall render the final decision on a major development plan within the Town Core. (2) Minor Development Plan. The Director shall review and render decisions on all minor development plan and minor sign plan applications. The decision of the Director may be appealed to the Town Council pursuant to Section 7.16.170, Appeal. The Director may refer to the PZC any plan application that the Director determines warrants review by the PZC. Ord 21-09 Chapter 7 Amendments July 13, 2021 Page 7 of 16 (fg) Review Criteria. The following review criteria shall be considered as the basis for a decision on development plan applications: (1) Evidence of substantial compliance with the purpose of the Development Code as specified in Section 7.04.030, Purposes; (2) Evidence of substantial compliance with Section 7.16.090, Design review; (3) Consistency with the Avon Comprehensive Plan The design conforms with the Avon Comprehensive Plan and other applicable, adopted plan documents; (4) Consistency with any previously approved and not revoked subdivision plat, planned development or any other precedent plan or land use approval for the property as applicable; (5) Compliance with all applicable development and design standards set forth in this Code, including but not limited to the provisions in Chapter 7.20, Zone Districts and Official Zoning Map, Chapter 7.24, Use Regulations and Chapter 7.28, Development Standards; and (6) That the development can be adequately served by city services, including but not limited to roads, water, wastewater, fire protection and emergency medical services.; and (7) The development design relates conforms with the character of the surrounding community; or, where redevelopment is anticipated, relates the development to the character of Avon as a whole. (gh) Expiration. A development plan approval expires pursuant to Subsection 7.16.020(h). (hi) Revocation. Approved site plan documents shall be binding upon the applicants and their successors and assigns. No permit shall be issued for any building or structure or use that is not in accord with the approved documents or any approved modifications thereto. The construction, location, use or operation of all land and structures within the site shall conform to all conditions and limitations set forth in the documents. No structure, use or other element of approved design review documents shall be eliminated, altered or provided in another manner unless an amended site plan is approved. Any deviation from the approved development plan as approved shall be grounds for revocation of the development plan approval. Section 7. Amendment to Chapter 7.16.090 - Design review. Chapter 7.16.090 is hereby deleted in its entirety. Section 8. Amendment to Table 7.20-9 Dimensions for the Town Center District. Table 7.20-9 is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: Table 7.20-9 Dimensions for the Town Center District Ord 21-09 Chapter 7 Amendments July 13, 2021 Page 8 of 16 Min. Lot Size (acres or sq. ft.) Min. Lot Width (feet) Max. Lot Coverage (%) Min. Landscape Area (%) Min. Front Setback (feet) Min. Side Setback (feet) Min. Rear Setback (feet) Max. Building Height (feet) n/a n/a 50 [5] 20 0 [1, 4] 7.5 [2] 10 [3] 80 [1] Infill development shall match the smallest setback of existing, adjacent structures. [2] TC abutting a residential district shall match the side yard setback standards of that district. [3] When abutting a public street, alley or public right-of-way. The rear setback for TC abutting a residential district shall be 20 feet, regardless of the location of any street, alley or ROW. [4] Nonresidential development that incorporates public space such as a plaza or courtyard into the building design may increase the front setback by up to 20 feet to accommodate that area up to 40% of the front building line. [5] May be increased to 80% if employee housing mitigation is provided in accordance with Section 7.20.100. Section 9. Amendment to Chapter 7.20.080(e) - Public Facilities (PF). Chapter 7.20.080(e) is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: Public Facilities (PF). The PF district is intended to provide sites for public uses such as community centers, police and fire stations, and governmental facilities, government employee housing, and Community Housing. The uses permitted in this district are identified by location in the Avon Comprehensive Plan. Unless otherwise set forth in the Avon Comprehensive Plan, the following dimensional requirements shall apply for the Public Facility (PF) zone district: Section 10. Amendment to Table 7.20-13 Dimensions for the Light Industrial and Commercial Employment District. Table 7.20-13 is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: Table 7.20-13 Dimensions for the Light Industrial and Commercial Employment District Ord 21-09 Chapter 7 Amendments July 13, 2021 Page 9 of 16 USE TYPE Min. Lot Size (acres or sq. ft.) Min. Lot Width (feet) Max. Lot Coverage (%) Min. Landscape Area (%) Min. Front Setback (feet) Min. Side Setback (feet) Min. Rear Setback (feet) Max. Building Height (feet) Max. Density Residential Mixed Use or IC 21,780 sq. ft. 100 50 20 25 7.5 10 48 See footnote [1] Community Housing 21,780 sq. ft. 100 50 20 25 7.5 10 48 10 du/acre [2] [1] Accessory dDwelling units which are accessory to the commercial use are permitted as a special review use pursuant to Section 7.16.100. The maximum density residential in a mixed use project shall be no more than four (4) ADU per acre; provided, however, on lots located on less than one (1) acre in size, the Maximum Residential shall be four (4) ADU per lot. [2] Additional Water Rights Dedication. The dedication of additional water rights may be required as a condition to approval of development which exceeds the meter size assigned to the property. The Town may accept cash-in-lieu of dedication in accordance with a water rights dedication impact fee schedule adopted by ordinance if the Town has adequate availability of surplus water rights as determined by the Town Council in its sole discretion. Section 11. Amendment to 7.20.100 - Employee housing mitigation. Chapter 7.20.100 is hereby amended to read as follows with underline indicating language to be adopted: (b)Applicability. This Section shall apply to new multi-family residential (3 or more units), commercial, accommodation units, industrial and other non-residential development within the Town. This Section applies to all entities, including private and non-profit entities. All Employee housing mitigation dwelling units required in Table 7.20-14 below are applied to the maximum residential density of the development. Section 12. Amendment to Chapter 7.24.060(g)(1) - Restaurant. Chapter 7.24.060(g)(1) is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: An eating and drinking establishment allowed under this Code may provide outdoor seating areas for customers following design review development plan approval and issuance of a liquor license. The approval of outdoor seating shall be reviewed against the following criteria: Ord 21-09 Chapter 7 Amendments July 13, 2021 Page 10 of 16 Section 13. Amendment to Table 7.28-2 - Off-Street Parking. Table 7.28-2 is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: Use Category Use Type Parking Requirement Residential Uses Residential and Accommodation Uses Dwelling, Single-Family, Duplex 2 per unit; 3 per unit for units over 2,500 sq. ft. Dwelling, Multi-Family Studio/ Lock off/ Accommodation unit 1 per unit 1 bedroom – 1.5 per unit /DU over 2,500 sq. ft. All others- 2 per unit Dwelling, Multi-Family (Short-Term Rental Overlay) with Parking Management Plan 1 per unit, plus Guest Parking Guest Parking for Multi-Family 3-5 units - 2 spaces 5-10 units - 3 spaces 11-15 units - 4 spaces 16-20 units - 5 spaces 21-25 units - 6 spaces Over 25 units - 7 spaces plus 1 space for each 5 units in excess of 25 up to a maximum of 10 additional spaces. Group Living Group Homes 1 per bed plus 1 per 100 sq. ft. of GFA Retirement home, nursing home or assisted living facility 1 per 4 beds and 1 per employee with consideration to the number of shifts worked. Use Category Use Type Parking Requirement Public and Institutional Uses Ord 21-09 Chapter 7 Amendments July 13, 2021 Page 11 of 16 Community Services Art gallery or museum 4 per 1,000 sq. ft. GFA Community centers 4 per 1,000 sq. ft. GFA Government services, offices and facilities 4 per 1,000 sq. ft. GFA Library 4 per 1,000 sq. ft. GFA Religious assembly 4 per 1,000 sq. ft. GFA Day Care Child care center 2 per 1,000 sq. ft. GFA Preschool, nursery school 2 per 1,000 sq. ft. GFA Educational Facilities College or university (non-exempt) 4 per 1,000 sq. ft. GFA School, K-12 (public and private) 4 per 1,000 sq. ft. GFA School, vocational-technical and trade 4 per 1,000 sq. ft. GFA Health Care Facilities Medical center/ hospital 4 per 1,000 sq. ft. GFA Medical and dental clinics and offices 4 per 1,000 sq. ft. GFA Urgent care facility 4 per 1,000 sq. ft. GFA Parks and Open Space Golf course 4 per green Commercial Uses General Commercial Uses unless otherwise stated 4 per 1,000 sq. ft. GFA Food and Beverage Services Restaurants, bars and taverns 1 per 60 sq. ft. of indoor seating area. Office Administrative and professional offices 3 per 1,000 sq. ft. GFA Recreation and Entertainment, Outdoor commercial recreation/ Determined by the Director Lighting Standards, Avon Buildings and Construction. Ord 21-09 Chapter 7 Amendments July 13, 2021 Page 12 of 16 Outdoor entertainment Recreation and Entertainment, Indoor Indoor commercial recreation/ entertainment Determined by the Director Accommodation Lodging, Hotel 1 per unit Wholesale Business Wholesale business 1 per 800 sq. ft. GFA Industrial Service General Industrial Uses unless otherwise stated 1 per 800 sq. ft. GFA Section 14. Amendment to 7.28.020(g)(iv) Electric Vehicle Parking. Chapter 7.28.020(g)(iv) is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: Electric Vehicle Parking. As required by Section 15.28, Electrical Vehicle Charging Standards, Avon Buildings and Construction, the quantity and location of EV parking spaces must be demonstrated at design review development plan. Section 15. Amendment to 7.28.060(d)(4) Alternate Screening. Chapter 7.28.060(d)(4) is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: Alternate Screening. Mechanical equipment that is not screened in full compliance with the screening standards of this Section shall be reviewed in accordance with Section 7.16.09080, Design Review Development plan. Alternate screening methods may include, but shall not be limited to, increased setbacks, increased landscaping, grouping the equipment on specific portions of a site, architectural features and painting. Section 16. Amendment to 7.28.090(c)(6) Exterior Lighting. Chapter 7.28.090(c)(6) is hereby amended to read as follows with underline indicating language to be adopted: Exterior Lighting: (1) The location and design of exterior lighting shall comply with Section 15.30, Outdoor Ord 21-09 Chapter 7 Amendments July 13, 2021 Page 13 of 16 Section 17. Amendment to 7.34.010(b) - Definitions. Chapter 7.34.010(b) is hereby amended to read as follows with underline indicating language to be adopted: Foot-candle means a unit of incident light (on a surface) stated in lumens per square foot and measurable with an illuminance meter, a.k.a. footcandle or light meter. One (1) footcandle is equal to one (1) lumen per square foot. Town of Avon sign means a sign erected, installed, or maintained by the Town of Avon for any public purpose, or a sign located on a building owned by the Town. Section 18. Amendment to 7.34.010(d) – Permitted Signs Generally. Chapter 7.34.010(d) is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: (7) Town of Avon Government signs (exempt, including any digital displays). (13) Window Signs (exempt, as long as square footage and type requirements are met). Section 19. Amendment to 7.34.010(e)(5) – Lighting. Chapter 7.34.010(e)(5) is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: Lighting shall be of no greater wattage than is necessary to make the sign visible at night, and should not reflect unnecessarily onto adjacent properties. Lighting sources, except neon tubing, should not be directly visible to passing pedestrians or vehicles, and should be concealed in such a manner that direct light does not shine in a disturbing manner. Internally Lit signs shall not be illuminated when the business is closed. (8) Digital Displays, Electronic Message Centers, and electronic changeable copy signs. Auto-oriented electronic messages, images, and/or changeable copy signs are permitted along arterial streets only for gasoline pricing, parking garage stall counter displays, drive-thru menu boards, drive-thru lane informational signage, provided that they meet the following criteria: i.Such signs shall be equipped with automatic dimmers, which shall be programmed to not exceed three tenths (.3) footcandles over ambient light levels. ii. Signs shall not cause distractions to drivers with moving images or similar effects. iii.Individual letters are limited to 17 inches in height. iv. Digital signs are included in sign area calculations. Ord 21-09 Chapter 7 Amendments July 13, 2021 Page 14 of 16 v.Drive-thru signs shall be oriented to face the interior of the lot and include adequate screening to not impact the view of neighboring properties or the adjacent street. Section 20. Amendment to 7.34.010(h)(2) – Master Sign Programs. Chapter 7.34.010(h)(2) is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: Master Sign Programs are encouraged for all properties and are required as a part of the design review development plan process for all proposed projects. Section 21. Amendment to 7.34.010(i) – Prohibited signs. Chapter 7.34.010(i) is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: (9) Signs erected on public rights-of-way, except government Town of Avon signs. Section 22. Severability. If any provision of this Ordinance, or the application of such provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. The Town Council hereby declares that it would have passed this Ordinance and each provision thereof, even though any one of the provisions might be declared unconstitutional or invalid. As used in this Section, the term “provision” means and includes any part, division, subdivision, section, subsection, sentence, clause or phrase; the term “application” means and includes an application of an ordinance or any part thereof, whether considered or construed alone or together with another ordinance or ordinances, or part thereof, of the Town. Section 23. Effective Date. This Ordinance shall take effect thirty days after the date of final passage in accordance with Section 6.4 of the Avon Home Rule Charter. Section 24. Safety Clause. The Town Council hereby finds, determines and declares that this Ordinance is promulgated under the general police power of the Town of Avon, that it is promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The Town Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. Section 25. No Existing Violation Affected. Nothing in this Ordinance shall be construed to release, extinguish, alter, modify, or change in whole or in part any penalty, liability or right or affect any audit, suit, or proceeding pending in any court, or any rights acquired, or liability incurred, or any cause or causes of action acquired or existing which may have been incurred or obtained under any ordinance or provision hereby repealed or amended by this Ordinance. Any Ord 21-09 Chapter 7 Amendments July 13, 2021 Page 15 of 16 such ordinance or provision thereof so amended, repealed, or superseded by this Ordinance shall be treated and held as remaining in force for the purpose of sustaining any and all proper actions, suits, proceedings and prosecutions, for the enforcement of such penalty, liability, or right, and for the purpose of sustaining any judgment, decree or order which can or may be rendered, entered, or made in such actions, suits or proceedings, or prosecutions imposing, inflicting, or declaring such penalty or liability or enforcing such right, and shall be treated and held as remaining in force for the purpose of sustaining any and all proceedings, actions, hearings, and appeals pending before any court or administrative tribunal. Section 26. Codification of Amendments. The codifier of the Town’s Municipal Code, Colorado Code Publishing, is hereby authorized to make such numerical and formatting changes as may be necessary to incorporate the provisions of this Ordinance within the Avon Municipal Code. The Town Clerk is authorized to correct, or approve the correction by the codifier, of any typographical error in the enacted regulations, provided that such correction shall not substantively change any provision of the regulations adopted in this Ordinance. Such corrections may include spelling, reference, citation, enumeration, and grammatical errors. Section 27. Publication. The Town Clerk is ordered to publish this Ordinance in accordance with Chapter 1.16 of the Avon Municipal Code. [SIGNATURE PAGE FOLLOWS] Ord 21-09 Chapter 7 Amendments July 13, 2021 Page 16 of 16 INTRODUCED AND ADOPTED ON FIRST READING AND REFERRED TO PUBLIC HEARING on June 22, 2021 and setting such public hearing for July 13, 2021 at the Council Chambers of the Avon Municipal Building, located at One Hundred Mikaela Way, Avon, Colorado. BY: ATTEST: ____________________________ ____________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk ADOPTED ON SECOND AND FINAL READING on July 13, 2021. BY: ATTEST: ____________________________ ____________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk APPROVED AS TO FORM: ____________________________ Paul Wisor, Town Attorney 970-748-4045 jhildreth@avon.org TO: Honorable Mayor Smith Hymes and Council Members FROM: Justin Hildreth, Town Engineer RE: Digital Display Signs Update DATE: June 18, 2021 SUMMARY: This report presents an update on the 2021 Digital Display Sign (“DDS”) program. Avon installed the first DDS in 2014 along Avon Road in front of Walgreens. This DDS has become an effective method to notify the public of events in Avon and provide public safety warnings. The community survey results showed they are one of the most effective communication methods the Town has with the public. Since 2014, DDS have reduced in price, improved in resolution, are able to be operated over cellphone networks and have become common in communities. The messages displayed on the signs will follow standards recommended by the Planning and Zoning Commission that ensure they follow the Town’s design aesthtic. The 2021 Capital Improvements Fund includes $150,000 for DDS’s and on March 9, 2021, Council approved the Notice of Award for DDSs on the Avon Road/Railroad bridge and Metcalf Road. Staff is requesting direction regarding the location of the Metcalf Road DDS and future sign locations to be included in the 2022 Capital Projects Fund budget. MANAGER’S COMMENTS: I support referral of each DDS location and design to the Avon Planning and Zoning Commission. Per the Avon Municipal Code, government signs are exempt from the Sign Code; however, these signs are unique and new and therefore would benefit from a public process as well as review and comment by the Avon Planning and Zoning Commission. Metcalf Road On the March 9, 2021 meeting, Council directed Staff to install the Metcalf Road DDS at the Wildwood Road/Metcalf Road intersection instead of near the water pump station. The sign will be 5x3 feet and placed on a stone veneer base, similar to the existing Walgreens DDS. The closest electrical power is near the water pump station 1,200-FT south of the intersection. Staff solicited proposals to extend electrical service to the intersection, and the lowest bid was $85,000. Installing a new electrical service at the water pump station location will cost $10,000. The Metcalf Road and railroad bridge DDSs cost $82,000 and installation cost at the railroad bridge is $15,000, for a total of $97,000. Staff is requesting direction on whether to proceed with locating the sign at the Wildwood Road/Metcalf Road intersection and include an additional $32,000 in the next Capital Projects Fund budget amendment or install the sign near the water pump station. Page 2 of 6 FIGURE1 - Metcalf Road Location Map FIGURE 2 - Street View photo of water pump station location Page 3 of 6 FIGURE 3 - Street View Photo of Wildwood Road/Metcalf Road intersection Avon Road/Railroad Bridge Two 13-x 4-foot signs on the railroad bridge over Avon Road are being fabricated and are on schedule to be installed in July depending on the availability of materials. Page 4 of 6 FUTURE DDS LOCATIONS: Four potential DDS locations are shown on Figure 4 and include Nottingham Road/Swift Gulch Road, West Beaver Creek Blvd at Railroad crossing, Hurd Lane, and Post Blvd. We are requesting direction from Council regarding the sign locations. The current intent is for the signs to match the Walgreens and Metcalf Road DDS design with regard to the stone veneer base. If Council supports these locations for neighborhood DDSs, Staff will proceed with obtaining pricing and will submit information on these sign locations to Planning and Zoning Commission Design Review for review and comment. For planning purposes, each DDS will cost approximately $50,000 to install. FIGURE 4: Potential future DDS Locations Page 5 of 6 FIGURE 5 3x5-Foot DDS Design Page 6 of 6 Nottingham Road/Swift Gulch Road Preliminary investigation indicates the sign will fit between the existing utilities and the right-of-way and will capture traffic to the businesses on Nottingham Road/Metcalf Road, and Mountain Star. If the direction is it to move forward with the sign at this location, we will reach out to the Buck Creek Medical Office Building owners to coordinate the DDS with their sign program West Beaver Creek Blvd at Rail Road Previous discussions involved locating a DDS at the Avon Elementary School Parking Lot entrance. After further investigation, we recommend the sign be located at the railroad crossing because the availability of electrical service and will not impact existing sign at Avon Elementary School. The sign will be visible to all the residents in this neighborhood and Avon Elementary School traffic. Post Blvd A DDS could be placed on Town owned land along Post Blvd between East Beaver Creek Blvd and the railroad bridge. The DDS will be visible to 9,000 vehicle trips per day that travel on Post Blvd and there is electrical infrastructure in the area. This sign will require design review approval from the Traer Creek Design Review Board. Hurd Lane A DDS could be installed on the southside of Hurd Lane on Town owned land across from Nottingham Station Center. Placement of the sign will be difficult because of the steep terrain south of the road. A new electrical service will be required but there is existing Holy Cross infrastructure in the area. RECOMMENDATION: I recommend the Metcalf Road DDS be located near the water pump station because extending electrical power to the Metcalf Road/Wildwood Road intersection results in an additional cost of $70,000. The water pump station location will capture the same traffic audience as the Wildwood Road intersection location. In anticipation of the 2022 Capital Project Fund budget season, Staff is requesting Council’s input regarding additional DDSs throughout Town. The 5 x 3-foot signs will be the same size as the existing Walgreens sign. The signs located on Nottingham Road, Hurd Lane and Post Blvd will include the grey stone smilar to that on Riverfront Lane and Avon Road retaining wall. The West Beaver Creek Blvd sign will have the Colorado Buff Sandstone to match the park restrooms and pavilion. These design elements will be referred to Avon Planning and Zoning Commission for review and comment. Design Review Referral The Metcalf Road DDS is scheduled to be presented to the Avon Planning and Zoning Commission on June 29, 2021 for review and comment. The 4 additional DDSs will be referred to Avon Planning and Zoning Commission for review and comment. The DDS on Post Blvd is also subject to the Traer Creek Design Review. Thank you, Justin 970-748-4065 ddempsey@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Danita Dempsey, CASE Manager RE: Public Hearing for Outdoor Use of Amplified Sound Permit Application DATE: June 22, 2021 SUMMARY: The Town Council is asked to consider approving an Amplified Sound Permit for XTERRA Mountain Championship athletic events July 17th, 2021. Sound will originate from a small cannon and amplified spoken announcements at the Harry A. Nottingham Lake boat ramp. BACKGROUND: A public hearing is required for Outdoor Use of Amplified Sound for events that will be using amplified sound systems outside the hours of 8:00 a.m. to 10:00 p.m. on Saturdays (Avon Municipal Code Chapter 5.24.030). The proposed start time for XTERRA’s amplified sound will be between 6:30 a.m. and the proposed end time is 10:00 a.m. A PUBLIC NOTICE was published, as required in Avon Municipal Code, for the public hearing on Thursday, June 17, 2021. Information for Issuing Amplified Sound Permits: The Ordinance 15-07 amending AMC 5.24, Section 9.12.080 provides the framework for issuing this type of permit. The Council, in making its decision to issue the Amplified Sound Permit, may consider the following: 1. Comments by the public. 2. Necessity of the permit for the cultural, historical, or social benefit of the community. 3. Proximity of the proposed location to residential neighborhoods. 4. Proposed direction of sound projection. 5. Screening of sound from neighboring properties. 6. Compatibility with other uses and activities in the vicinity. RECOMMENDATION: I recommend approval of the Outdoor Use of Amplified Sound Application for XTERRA. This well-established event brings athletes, families and spectators to Avon, which boosts the local economy and brings worldwide recognition to the community. OPTIONS: The Town Council may prescribe any conditions or requirements deemed necessary to minimize adverse effects upon the community or surrounding neighborhood. PROPOSED MOTION: I move to approve the Outdoor Use of Amplified Sound Application for the XTERRA Mountain Championships at Harry A. Nottingham Lake boat ramp. Thank you, Danita ATTACHMENTS: Exhibit A – 2021 Permit Application for Non-Town Funded Special Events (Permit for Outdoors Use of Amplified Sound Included) Exhibit B – Map of proposed sound Page 2 of 3 EXHIBIT A Page 3 of 3 EXHIBIT B 970-300-4373 pwisor@garfieldhecht.com TO: Honorable Mayor Smith Hymes and Councilmembers FROM: Paul Wisor, Town Attorney Eric Heil, Town Manager RE: Resolution 21-15 – Remote Participation Policy DATE: June 17, 2021 SUMMARY: The attached Resolution and Amended and Restated Simplified Rules of Order For Avon Town Council Meetings establishes new guidelines by which Town Council members can participate in Town Council meetings through Zoom or similar video platforms. It is still the policy that remote attendance by Town Council members is the exception rather than the rule. This draft reflects suggested edits made by Councilor Underwood at Council’s June 8th meeting. BACKGROUND: In response to the spread of the COVID-19 virus, the Avon Town Council and the public began attending all Town Council meetings through online video platforms in March 2020. Although this format certainly had glitches of varying degrees, the experience demonstrated remote video participation is a viable method by which some Town Council business can be conducted. In 2015, the Town adopted a remote attendance policy, which enables Town Council members to attend meetings remotely and vote on resolution and ordinance. The attached Resolution supersedes the 2015 policy as this policy did not contemplate some of the advantages and challenges associated with video meetings. REMOTE ATTENDANCE POLICY: The new Remote Attendance Policy is incorporated into the Simplified Rules of Order in Section IV. It is the intent of the Remote Attendance that electronic participation shall be an infrequent or occasional substitution for physical in-person attendance by a Town Council member at Town Council meetings. Participation via remote attendance is allowed by video means, such as Zoom, Webex Microsoft Teams or similar platform, which is clear, uninterrupted and allows two way communication for the participating of a Town Council member. A Council member is only permitted to participate electronically under the following circumstances: •Travelling •Illness •Unusual or unforeseen circumstances that do not allow in-person attendance While a Town Council member participating electronically shall be entitled to otherwise fully participate in the meeting. The revised Remote Attendance Policy allows Council members to fully participate in all Council matters, including quasi-judicial hearings and executive sessions. Updates made since Council’s June 8th meeting include the following items: •Remote attendance is a convenience to Council members, and nothing contained herein shall confer a right on any member of Council member to participate in any meeting by remote attendance. •All requests to participate remotely be made in writing. •It is the responsibility of the Council member to provide the technical means necessary to facilitate remote attendance from their remote location. •When any member of Council is participating by remote attendance, all votes taken shall be conducted by roll call vote. Page 2 of 2 •The officer presiding during the meeting shall designate the individual who Council members should contact during the meeting in the event of technical difficulties. FINANCIAL CONSIDERATIONS: Council provided direction to Staff to research and implement improvements to the Town Council Chambers to enable remote attendance by Council members and the general public. Those improvements are expected to be completed and ready for operation on the June 8th Council meeting. The total cost of those improvements are approximately $30,000. PROPOSED MOTION: “I move to approve Resolution 21-15 thereby adopting an Amended and Restated Simplified Rules of Order For Avon Town Council Meetings to Reflect a Remote Attendance Policy.” Thank you, Paul and Eric ATTACHMENT A: Resolution 21-15 Res 21-15 Amending and Readopting Simplified Rules of Order Page 1 of 1 RESOLUTION 21-15 AMENDING AND RE-ADOPTING THE SIMPLIFIED RULES OF ORDER FOR AVON TOWN COUNCIL MEETINGS TO REFLECT REMOTE ATTENDANCE POLICY WHEREAS, Section 5.1 of the Avon Charter states, “The Council shall determine the rules of procedure governing meetings.” and WHEREAS, the Avon Town Council adopted Simplified Rules of Order for Avon Town Council Meetings on January 28, 2014; and WHEREAS, the Avon Town Council adopted a Remote Attendance Policy on February 24, 2015; and WHEREAS, the Avon Town Council desires to amend the Simplified Rules of Order for Avon Town Council Meetings to formally adopt the Avon Town Council’s policy permit remote attendance of members of Town Council under limited circumstances; and WHEREAS, it is the intent of Avon Town Council that this Resolution 21-15 shall replace the provisions of the 2015 Remote Attendance Policy; and WHEREAS, the Avon Town Council finds that amendment and re-adoption of Simplified Rules of Order will promote meeting efficiency as well as promote the understanding and transparency of Council meeting procedures for the general public; and WHEREAS, the Avon Town Council hereby finds, determines and declares that this Resolution will promote the health, safety and general welfare of the Avon community. NOW THEREFORE, BE IT RESOLVED, BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, that that the Simplified Rules of Order for Avon Town Council Meetings attached hereto as Exhibit A are hereby amended and re-adopted. ADOPTED this 22nd day of June 2021. AVON TOWN COUNCIL By: __________________________________ Sarah Smith-Hymes, Mayor Attest: ________________________________ Brenda Torres, Town Clerk Exhibit A: Resolution 21-15 Adopted January 28, 2014 by Resolution No. 14-03 Amended and Readopted on July 26, 2016 by Resolution No. 16-20 Amended and Readopted on April 11, 2017 by Resolution No. 17-05 Amended and Readopted on June 22, 2021 by Resolution No. 21-15 Page 1 of 6 Avon Town Council Simplified Rules of Order These Simplified Rules of Order establish rules and procedures for Avon Town Council meetings. The intent is to set forth simplified rules which are readily accessible and usable by the Avon Town Council members and understandable by the general public. The provisions of the Home Rule Charter, the Avon Municipal Code, or any ordinance adopted by the Avon Town Council shall govern and apply in the event there is any conflict with these Simplified Rules of Order. Unless otherwise indicated, any reference to “Mayor” shall also mean the “Mayor Pro- Tem” or “Acting Mayor” in the absence of the Mayor, as set forth in the Avon Home Rule Charter. I. Standards of Conduct for Avon Town Meetings: The Avon Town Council finds that the foundation of municipal democracy rests on open, respectful and informed discussion and debate balanced with the necessary efficiency required to take action in the public interest. Reasonable persons will often disagree on many public matters which arise before elected and appointed officials. The process of discussion and debate is essential to the ability of elected and appointed officials to render the best decisions possible for the Avon community. The following standards of conduct are considered the minimum standards for elected and appointed officials. A. Elected and appointed officials shall conduct themselves in a mature manner that is becoming of public officials, shall respect one another and shall respect members of the public. B. Elected and appointed officials shall refrain from profanity, rude behavior or personal attacks and shall promptly apologize to both the board and the recipient of any such behavior in the event of a temporary lapse of appropriate behavior. C. The Mayor shall be responsible for maintaining civility, decorum and order throughout the meeting. D. Members of the Avon Town Council shall not communicate between or amongst themselves by text message, e-mails or other forms of electronic communication during a Council meeting. E. Members of the Avon Town Council shall promptly disclose and announce the sending or receipt by a Council member of a text message, e-mail or other form of electronic communication during a Town Council meeting, to or from any person, for any such communication that concerns a matter on the Town Council agenda for that meeting. II.Mayor: Every meeting of the Avon Town Council shall be presided over by the Mayor. If the Mayor is absent the Mayor Pro-Tem shall preside over the meeting. If the Mayor has a conflict of interest on a matter then the Mayor Pro-Tem shall preside over the meeting for such matter. If the Mayor and Mayor Pro-Tem are absent, or if they both have conflict of interest on a matter, then a quorum of Council members shall appoint an Acting Mayor by motion who shall then preside over the meeting or shall preside over such matter for which the Mayor and Mayor Pro-Tem have conflict of interest. The Mayor shall strive to moderate Council meetings with impartiality, shall strive to allow input from all other Council members on matters before Exhibit A to Resolution 21-15 Adopted January 28, 2014 by Resolution No. 14-03 Amended and Readopted on July 26, 2016 by Resolution No. 16-20 Amended and Readopted on April 11, 2017 by Resolution No. 17-05 Amended and Readopted on June 22, 2021 by Resolution No. 21-15 Page 2 of 6 expressing his or her opinion, and shall refrain from making a motion or seconding a motion until it is apparent that no other member of the Council will do so. III.Agendas: The following rules and procedures shall apply to agendas: A. The Mayor shall determine the agenda in consultation with the Town Manager. The Town Council may direct items to be included on an agenda. Individual Council members may contact the Mayor to request inclusion of a matter on an agenda. The Mayor shall consult with the Town Manager and exercise discretion to determine if the matter should be included on the agenda as a discussion item or an action item. B. After roll call, the Council shall approve the agenda by motion by a majority of the quorum present with any additions or deletions Council deems appropriate. C. The Council may take action by motion at any time during a meeting to schedule discussion or action items on a future agenda which shall be scheduled by Town Staff. D. Noticing for action items and public hearings shall be in accordance with applicable law. IV.Remote Attendance Policy: The preference and expectation of all Council members is to attend Council meetings in-person whenever possible in recognition of the efficiency and effectiveness of in-person participation when conducting the public business of the Town of Avon. However, there may be occasional times when in-person attendance is not possible by Council members. Council finds that remote attendance by Council members is preferable to not permitting participation or delaying the conduct of public business. Participation by remote attendance shall comply with this Section IV and any applicable laws. Remote attendance is a convenience to Council members, and nothing contained herein shall confer a right on any member of Council member to participate in any meeting by remote attendance. A. Remote attendance means participation by video or audio means, such as Zoom, Webex, Microsoft Teams or similar platform, which is clear, uninterrupted and allows two-way communication for the participating Council member. B. Council members may participate in a Council meeting by remote attendance when travelling out-of-town, when ill, or when unusual or unforeseen circumstances do not allow in-person attendance. Council members who are ill are encouraged and expected to participate by remote attendance. C. A Council member who desires to participate by remote attendance shall notify the Mayor and Town Clerk as early as possible in writing. Upon receipt of such written request, the Town shall use its best efforts to provide the technical means necessary to fulfill such request from Town Hall; provided, however, it shall be incumbent upon the Council member who desires to participate by remote attendance to provide the technical means necessary to facilitate remote attendance from their remote location. Exhibit A to Resolution 21-15 Adopted January 28, 2014 by Resolution No. 14-03 Amended and Readopted on July 26, 2016 by Resolution No. 16-20 Amended and Readopted on April 11, 2017 by Resolution No. 17-05 Amended and Readopted on June 22, 2021 by Resolution No. 21-15 Page 3 of 6 D. A Council member who is participating through remote attendance (1) shall be entitled to participate in all Council matters in the same capacity as a Council member in physical attendance, including participation quasi-judicial matters and executive sessions; (2) shall be counted for purposes of establishing a quorum; (3) shall have the opportunity to express comments during the meeting and participate in the same capacity as those members physically present, subject to all general meeting guidelines and adopted procedures; (4) shall be heard, considered, and counted as to any vote taken; (5) shall be called during any vote taken and shall have such Council member’s vote counted and recorded by the Town Clerk and placed in the minutes for the corresponding meeting; and, (6) may leave a meeting and return as in the case of any member upon announcement of such leaving and returning. When any member of Council is participating by remote attendance, all votes taken shall be conducted by roll call vote. E. The Mayor, Mayor-Pro Tem or other designated person who is presiding over the meeting shall have the discretion to mute any Council member who is participating through remote attendance when distracting and extraneous noise is occurring through the remote attendance. The officer who is presiding over the meeting may delegate to the ability to mute Council members to the meeting host with controls for the meeting platform. The officer who is presiding over the meeting shall use best efforts to recognize and provide opportunity for Council members who are participating via remote attendance contribute to the discussion and express comments. The officer presiding during the meeting shall designate the individual who Council members should contact during the meeting in the event of technical difficulties or in connection with other matters related to items not appearing on the agenda for the meeting in which the Council member is participating by remote attendance. F. In the event that there is significant disruption in the connection or communication with a Council member, or members, who are participating via remote attendance which frustrates and disrupts the efficiency and effectiveness of the Council meeting, the officer presiding over the meeting or a majority of Council members who are attending a meeting in-person may choose to terminate the remote attendance of such Council member or may choose to continue or table the Council meeting or agenda matter to a later time. G. Council members who are participating via remote attendance are expected to be situated in a stationary location with adequate internet service with video camera on and presenting in a professional manner similar to in-person Council meeting attendance. V. Motions: All official Town Council actions are initiated by motion. These following rules and procedures apply to motions. There are two basic motions: action motions and procedural motions. Only one action motion may be on the floor at a time. A procedural motion may be proposed, discussed and acted upon when an action motion is on the floor or at any other time. A. Basic Motion: The basic motion to take action is stated as, “I move to . . . .” Every motion requires a second. Once a motion is made no further discussion can continue until a second is made to support the motion. Exhibit A to Resolution 21-15 Adopted January 28, 2014 by Resolution No. 14-03 Amended and Readopted on July 26, 2016 by Resolution No. 16-20 Amended and Readopted on April 11, 2017 by Resolution No. 17-05 Amended and Readopted on June 22, 2021 by Resolution No. 21-15 Page 4 of 6 B. Discussion: All Council members have the right to discuss the motion on the floor. Discussion cannot be concluded unless (1) all Council members present consent or (2) a majority of Council members present approve a procedural motion to “Call the Question” and end debate. C. Withdraw a Motion: The maker of a motion may choose to withdraw the motion at any time prior to the vote on the motion and may interrupt a speaker to withdraw the motion and consent of the Council member who seconded the motion is not required. The motion is immediately withdrawn; however, the Mayor may then ask the Council member who seconded the withdrawn motion and any other Council member if such Council member wishes to make the motion. D. Amendment to Motion: Any Council member may request an amendment to a pending motion. The maker of the pending motion and Council member who seconded the motion must consent to the proposed amendment. Any Council member may also propose a substitute motion to a pending motion which also requires consent of the maker of the pending motion and the Council member who seconded the pending motion. E. Procedural Motion: A procedural motion may be made at any time and may impose or modify any procedural rule provided that such procedure is not in conflict with the Avon Home Rule Charter, any ordinance adopted by the Town, or any applicable state law. Procedural motions require a majority vote of the quorum present. F. Motion to Call the Question or End the Discussion: A motion to “call the question” (also known as a motion to end the discussion) is a procedural motion to end debate and discussion. A motion to call the question cannot be made until each Council member has had at least one reasonable opportunity to ask questions and express his or her opinion on the matter. Once a motion to call the question is made and seconded, it shall be the Mayor’s discretion to allow any further discussion on such procedural motion for the purpose of clarifying any technical, procedural or legal issue related to the procedural motion. A motion to call the question requires a majority vote of the quorum present. Once a motion to call the question is approved, the pending action motion on the floor must be voted upon promptly or, if no action motion is pending, the Mayor shall proceed to the next agenda item. G. Motion to Continue: A motion to continue an agenda item must include a specific future Council meeting date, time and place for the continued matter to be considered again without re-noticing a required public hearing. H. Motion to Table: A motion to table places the agenda item on hold and does not require a specific time for the return of the agenda item. I. Motion to Suspend Rules: A motion to suspend rules may allow suspension of any rule in this Simplified Rule of Order. Such motion may be made and requires a supermajority vote of a majority of the quorum present plus one for approval. A motion to suspend rules may not supersede the procedural requirements of the Avon Home Rule Charter, any ordinance adopted by the Town, or any applicable state law. Exhibit A to Resolution 21-15 Adopted January 28, 2014 by Resolution No. 14-03 Amended and Readopted on July 26, 2016 by Resolution No. 16-20 Amended and Readopted on April 11, 2017 by Resolution No. 17-05 Amended and Readopted on June 22, 2021 by Resolution No. 21-15 Page 5 of 6 J. A Motion to Reconsider: A Motion to Reconsider allows the Council to reconsider a vote on a matter. A Motion to Reconsider may only be made and considered if made and acted upon less than twenty-eight (28) days after the date of the Council action to be reconsidered and may be made only by a member of Council who voted in the majority on the motion which is proposed for reconsideration. VI.Meeting Conduct A. Point of Privilege: A Council member may interrupt the speaker to raise a matter related to the comfort of the meeting, such as room temperature, distractions, or ability to hear speaker. B. Point of Order: A Council member may raise a Point of Order at any time that the Mayor permits meeting conduct which does not follow these Simplified Rules of Order or otherwise fails to maintain civility and decorum by the Council and the general public. C. Appeal: A Council member may move to appeal the ruling of the Mayor on any procedural matter or other decision related to the conduct of the meeting. If the motion is seconded and, after debate, it such motion passes by a simple majority vote of the quorum present, then the ruling or conduct of the Mayor shall be overruled and reversed. D. Call for Orders of the Day: A Council member may call for Orders of the Day when such Council member believes that Council discussion has strayed from the agenda. No second or vote is required. If the Mayor does not return to the agenda, then such ruling may be appealed. E. Adjournment: The Mayor may announce the meeting adjourned when there are no further items on the agenda which have not been addressed. The Council may adjourn a meeting at any time by motion, second and approval by a majority of the quorum present. VII.Public Comments: Council agendas shall include a general item labeled “Public Comment” near the beginning of all Council meetings. Members of the public who wish to provide comments to Council greater than three minutes are encouraged to schedule time in advance on the agenda and to provide written comments and other appropriate materials to the Council in advance of the Council meeting. The Mayor shall permit public comments during any agenda item and may limit public comment to three minutes per individual, which limitation may be waived or increased by a majority of the quorum present. VIII.Public Hearing: The following general rules shall apply to the order and conduct of public hearings. These rules may be modified or suspended by Motion to Suspend Rules. A. The Mayor shall open the public hearing by announcing the topic of the agenda item. The Mayor shall at all times during public hearings strive to maintain civility, decorum and order. B. The Mayor and/or appropriate Town Staff person shall introduce the topic, explain the applicable procedures and laws, and provide any presentation by the Town. Exhibit A to Resolution 21-15 Adopted January 28, 2014 by Resolution No. 14-03 Amended and Readopted on July 26, 2016 by Resolution No. 16-20 Amended and Readopted on April 11, 2017 by Resolution No. 17-05 Amended and Readopted on June 22, 2021 by Resolution No. 21-15 Page 6 of 6 C. The applicant, licensee or appellant shall have the opportunity to present information, provide testimony, or respond to any comments or details in the Town’s presentation. D. The Council shall have the opportunity to ask technical questions of the appropriate Town staff, Town officials and the applicant, licensee or appellant but Council members shall not express opinions on the matter prior to opening the public hearing for public comment. E. The Mayor shall officially open the public hearing for public comment and shall allow for members of the public to provide comment to the Council. The Council may approve a time limitation not less than 3 minutes for individual public comment and may approve sign-up sheets or other public comment procedures to promote order and efficiency by a majority vote of the quorum present provided that individuals shall be permitted to yield his or her public comment time to another speaker. After all public comments are received, or if the Council determines that the volume of public comments requires additional time and moves to continue the public hearing, the Mayor shall close the public comment portion of the public hearing. F. The Council may discuss the merits of the topic of the public hearing and take such action as deemed appropriate after the public comment portion of the public hearing is concluded. If the volume of public comments requires a continuation, if additional information is required to consider the public hearing matter, or if the Council determines that additional time is warranted to consider the matter of the public hearing, the Council may continue the public hearing to a later date and may re-open the public comment portion of the public hearing at any continued public hearing. IX.Executive Sessions: Council may convene into executive session at any time by the affirmative vote of 2/3rds of the quorum present and by announcing the specific statutory citation and purpose of the executive session in accordance with the Colorado Open Meetings Law, CRS §24-6-402(4). The Council is not permitted to take official, final action on any matter in executive session. Exhibit A to Resolution 21-15 970-390-2014 ewilson @avon.org TO: Honorable Mayor Smith Hymes and Council Members FROM: Eva Wilson, Mobility Director RE: E-Bus Purchase Agreement - Proterra DATE: June 15, 2021 SUMMARY: In 2020, the Town of Avon was the only Colorado recipient of the Federal Transit Authority (“FTA”) Low-No Emission Vehicle Grant. The grant awarded up to 80% of $2,000,000 to purchase two (2) 35’ Electric battery replacement buses. The required 20% local match funds are in the 2021 Avon Budget. The purpose of the FTA Low-No Program is to support the transition of the nation’s transit fleet to the lowest polluting and most energy-efficient transit vehicles. The Low-No Program provides funding to state and local governmental authorities for the purchase or lease of zero-emission and low-emission transit buses, including acquisition, construction, and leasing of required supporting facilities. Including the pending diesel bus purchases, the Town of Avon has a trans it fleet size of thirteen (13) buses of various sizes and ages. Six of the thirteen buses are beyond their useful life. This grant will enable Avon to replace two of our oldest diesel buses with electric battery buses. As a grant stipulation, the diesel engines of busses 850 and 855 will be destroyed. This grant will maintain our transit fleet size at thirteen. The purchase of two electric busses is a significant step in transitioning Avon’s transit fleet to zero emission vehicles. Avon Council previously adopted the Climate Action Plan for the Eagle County Community in 2016 and the recent 2021 update. The transition to electric busses implements Climate Action Plan goals adopted by the Town of Avon. The approval of the State of Colorado Grant Agreement and the Proterra Purchase Agreement is presented to Council in accordance with the Town’s Procurement Code which requires Council approval for contracts over $100,000. The State of Colorado Grant Agreement is in a standard form that is non-negotiable. The Town Attorney has reviewed and approved the form of these contracts. RECOMMENDATION: I recommend option 1 and accept the needed FTA grant funds and the Proterra Purchase Agreement. PROPOSED MOTIONS: “I move to accept the FTA grant funds and the Proterra Purchase Agreement.” Thank you, Eva ATTACHMENT A - State of Colorado Grant Agreement ATTACHMENT B – Proterra Purchase Agreement Contract Number: 21-HTR-ZL-00161/491002407 Page 1 of 45 Version 10/23/19 STATE OF COLORADO SUBAWARD AGREEMENT COVER PAGE State Agency Department of Transportation Agreement Number / PO Number 21-HTR-ZL-00161 / 491002407 Subrecipient TOWN OF AVON Agreement Performance Beginning Date The Effective Date Initial Agreement Expiration Date December 31, 2022 Subaward Agreement Amount Federal Funds Maximum Amount (80%) Local Funds Local Match Amount (20%) Agreement Total $1,600,000.00 $400,000.00 $2,000,000.00 Fund Expenditure End Date December 31, 2022 Agreement Authority Authority to enter into this Agreement exists in CRS §§43-1-106, 43-1-110, 43-1-117.5, 43-1-701, 43-1-702 and 43-2-101(4)(c), appropriated and otherwise made available pursuant to the FAST ACT, MAP-21, SAFETEA_LU, 23 USC §104 and 23 USC §149. Agreement Purpose In accordance with 49 USC §5339 (c.), the purpose of this Grant is to provide funding to state and local governmental authorities for the purchase or lease of zero -emission and low-emission transit buses as well as acquisition, construction, and leasing of required supporting facilities. The work to be completed under this Grant by the Grantee is more specifically described in Exhibit A. Exhibits and Order of Precedence The following Exhibits and attachments are included with this Agreement: 1. Exhibit A – Statement of Work and Budget. 2. Exhibit B – Sample Option Letter. 3. Exhibit C – Federal Provisions. 4. Exhibit D – Required Federal Contract/Agreement Clauses. 5. Exhibit E – Verification of Payment. In the event of a conflict or inconsistency between this Agreement and any Exhibit or attachment, such conflict or inconsistency shall be resolved by reference to the documents in the following order of priority: 1. Exhibit C – Federal Provisions. 2. Exhibit D – Required Federal Contract/Agreement Clauses. 3. Colorado Special Provisions in §17 of the main body of this Agreement. 4. The provisions of the other sections of the main body of this Agreement. 5. Exhibit A – Statement of Work and Budget. 6. Executed Option Letters (if any). Principal Representatives For the State: Brodie Ayers Division of Transit and Rail Colorado Dept. of Transportation 2829 W. Howard Place Denver, CO 80204 brodie.ayers@state.co.us For Subrecipient: Eva Wilson TOWN OF AVON BOX D AVON, CO 81620 ewilson@avon.org DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 2 of 45 Version 10/23/19 SIGNATURE PAGE THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT Each person signing this Agreement represents and warrants that the signer is duly authorized to execute this Agreement and to bind the Party authorizing such signature. SUBRECIPIENT TOWN OF AVON __________________________________________ __________________________________________ By: Print Name of Authorized Individual Date: _________________________ STATE OF COLORADO Jared S. Polis, Governor Department of Transportation Shoshana M. Lew, Executive Director __________________________________________ By: Herman Stockinger, Deputy Director and Director of Policy Date: _________________________ 2nd State or Subrecipient Signature if needed __________________________________________ __________________________________________ By: Print Name of Authorized Individual Date: _________________________ LEGAL REVIEW Philip J. Weiser, Attorney General __________________________________________ By: Assistant Attorney General Date: __________________________ In accordance with §24-30-202, C.R.S., this Agreement is not valid until signed and dated below by the State Controller or an authorized delegate. STATE CONTROLLER Robert Jaros, CPA, MBA, JD ___________________________________________ By: Department of Transportation Effective Date:_____________________ DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 Eric Heil 5/18/2021 Eric Heil 5/19/2021 5/19/2021 N/A ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 3 of 45 Version 10/23/19 TABLE OF CONTENTS 1. PARTIES................................................................................................................................................. 3 2. TERM AND EFFECTIVE DATE .......................................................................................................... 3 3. DEFINITIONS ........................................................................................................................................ 4 4. STATEMENT OF WORK AND BUDGET ........................................................................................... 6 5. PAYMENTS TO SUBRECIPIENT ........................................................................................................ 6 6. REPORTING - NOTIFICATION ........................................................................................................... 8 7. SUBRECIPIENT RECORDS ................................................................................................................. 9 8. CONFIDENTIAL INFORMATION - STATE RECORDS .................................................................... 9 9. CONFLICTS OF INTEREST ............................................................................................................... 10 10. INSURANCE ........................................................................................................................................ 11 11. BREACH OF AGREEMENT ............................................................................................................... 12 12. REMEDIES ........................................................................................................................................... 12 13. DISPUTE RESOLUTION .................................................................................................................... 14 14. NOTICES and REPRESENTATIVES .................................................................................................. 14 15. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION ...................................................... 14 16. GENERAL PROVISIONS .................................................................................................................... 15 17. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3) ..................................... 17 1. PARTIES This Agreement is entered into by and between Subrecipient named on the Cover Page for this Agreement (the “Subrecipient”), and the STATE OF COLORADO acting by and through the State agency named on the Cover Page for this Agreement (the “State”). Subrecipient and the State agree to the terms and conditions in this Agreement. 2. TERM AND EFFECTIVE DATE A. Effective Date This Agreement shall not be valid or enforceable until the Effective Date, and the Grant Funds shall be expended by the Fund Expenditure End Date shown on the Cover Page for this Agreement. The State shall not be bound by any provision of this Agreement before the Effective Date, and shall have no obligation to pay Subrecipient for any Work performed or expense incurred before the Effective Date, except as described in §5.D, or after the Fund Expenditure End Date. B. Initial Term The Parties’ respective performances under this Agreement shall commence on the Agreement Performance Beginning Date shown on the Cover Page for this Agreement and shall terminate on the Initial Agreement Expiration Date shown on the Cover Page for this Agreement (the “Initial Term”) unless sooner terminated or further extended in accordance with the terms of this Agreement. C. Extension Terms - State’s Option The State, at its discretion, shall have the option to extend the performance under this Agreement beyond the Initial Term for a period, or for successive periods, of one year or less at the same rates and under the same terms specified in this Agreement (each such period an “Extension Term”). In order to exercise this option, the State shall provide written notice to Subrecipient in a form substantially equivalent to the Sample Option Letter attached to this Agreement. D. End of Term Extension If this Agreement approaches the end of its Initial Term, or any Extension Term then in place, th e State, at its discretion, upon written notice to Subrecipient in a form substantially equivalent to the Sample Option Letter attached to this Agreement, may unilaterally extend such Initial Term or Extension Term for a period not to exceed two months (an “End of Term Extension”), regardless of whether additional Extension Terms are available or not. The provisions of this Agreement in effect when such notice is given shall remain in effect during the End of Term Extension. The End of Term Extension shall automatically terminate upon execution of a replacement Agreement or modification extending the total term of this Agreement. DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 4 of 45 Version 10/23/19 E. Early Termination in the Public Interest The State is entering into this Agreement to serve the public interest of the State of Colorado as determined by its Governor, General Assembly, or Courts. If this Agreement ceases to further the public interest of the State, the State, in its discretion, may terminate this Agreement in whole or in part. A determination that this Agreement should be terminated in the public interest shall not be equivalent to a State right to terminate for convenience. This subsection shall not apply to a termination of this Agreement by the State for Breach of Agreement by Subrecipient, which shall be governed by §12.A.i. i. Method and Content The State shall notify Subrecipient of such termination in accordance with §14. The notice shall specify the effective date of the termination and whether it affects all or a portion of this Agreement, and shall include, to the extent practicable, the public interest justification for the termination. ii. Obligations and Rights Upon receipt of a termination notice for termination in the public interest, Subrecipient shall be subject to the rights and obligations set forth in §12.A.i.a. iii. Payments If the State terminates this Agreement in the public interest, the State shall pay Subrecipient an amount equal to the percentage of the total reimbursement payable under this Agreement that corresponds to the percentage of Work satisfactorily completed and accepted, as determined by the State, less payments previously made. Additionally, if this Agreement is less than 60% completed, as determined by the State, the State may reimburse Subrecipient for a portion of actual out-of-pocket expenses, not otherwise reimbursed under this Agreement, incurred by Subrecipient which are directly attributable to the uncompleted portion of Subrecipient’s obligations, provided that the sum of any and all reimbursement shall not exceed the Subaward Maximum Amount payable to Subrecipient hereunder. F. Subrecipient’s Termination Under Federal Requirements Subrecipient may request termination of this Agreement by sending notice to the State, or to the Federal Awarding Agency with a copy to the State, which includes the reasons for the termination and the effective date of the termination. If this Agreement is terminated in this manner, then Subrecipient shall return any advanced payments made for work that will not be performed prior to the effective date of the termin ation. 3. DEFINITIONS The following terms shall be construed and interpreted as follows: A. “Agreement” means this subaward agreement, including all attached Exhibits, all documents incorporated by reference, all referenced statutes, rules and cited authorities, and any future modifications thereto. B. “Award” means an award by a Recipient to a Subrecipient funded in whole or in part by a Federal Award. The terms and conditions of the Federal Award flow down to the Award unless the terms and conditions of the Federal Award specifically indicate otherwise. C. “Breach of Agreement” means the failure of a Party to perform any of its obligations in accordance with this Agreement, in whole or in part or in a timely or satisfactory manner. The insti tution of proceedings under any bankruptcy, insolvency, reorganization or similar law, by or against Subrecipient, or the appointment of a receiver or similar officer for Subrecipient or any of its property, which is not vacated or fully stayed within 30 days after the institution of such proceeding, shall also constitute a breach. If Subrecipient is debarred or suspended under §24-109-105, C.R.S., at any time during the term of this Agreement, then such debarment or suspension shall constitute a breach. D. “Budget” means the budget for the Work described in Exhibit A. E. “Business Day” means any day other than Saturday, Sunday, or a legal holiday as listed in §24-11-101(1), C.R.S. F. “CORA” means the Colorado Open Records Act, §§24 -72-200.1, et. seq., C.R.S. G. “Deliverable” means the outcome to be achieved or output to be provided, in the form of a tangible or intangible Good or Service that is produced as a result of Subrecipient’s Work that is intended to be delivered by Subrecipient. DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 5 of 45 Version 10/23/19 H. “Effective Date” means the date on which this Agreement is approved and signed by the Colorado State Controller or designee, as shown on the Signature Page for this Agreement. I. “End of Term Extension” means the time period defined in §2.D. J. “Exhibits” means the exhibits and attachments included with this Agreement as shown on the Cover Page for this Agreement. K. “Extension Term” means the time period defined in §2.C. L. “Federal Award” means an award of Federal financial assistance or a cost-reimbursement contract, under the Federal Acquisition Regulations or by a formula or block grant, by a Federal Awarding Agency to the Recipient. “Federal Award” also means an agreement setting forth the terms and conditions of the Federal Award. The term does not include payments to a Subrecipient or payments to an individual that is a beneficiary of a Federal program. M. “Federal Awarding Agency” means a Federal agency providing a Federal Award to a Recipient. Federal Transit Administration (FTA) is the Federal Awarding Agency for the Federal Award which is the subject of this Agreement. N. “FTA” means Federal Transit Administration. O. “Goods” means any movable material acquired, produced, or delivered by Subrecipient as set forth in this Agreement and shall include any movable material acquired, produced, or delivered by Subrecipient in connection with the Services. P. “Grant Funds” means the funds that have been appropriated, designated, encumbered, or otherwise made available for payment by the State under this Agreement. Q. “Incident” means any accidental or deliberate event that results in or constitutes an imminent threat of the unauthorized access, loss, disclosure, modification, disruption, or destruction of any communications or information resources of the State, which are included as part of the Work, as described in §§24-37.5-401, et. seq., C.R.S. Incidents include, without limitation (i) successful attempts to gain unauthorized access to a State system or State Records regardless of where such information is located; (ii) unwanted disruption or denial of service; (iii) the unauthorized use of a State system for the processing or storage of data; or (iv) changes to State system hardware, firmware, or software characteristics without the State’s knowledge, instruction, or consent. R. “Initial Term” means the time period defined in §2.B. S. “Master Agreement” means the FTA Master Agreement document incorporated by reference and made part of FTA’s standard terms and conditions governing the administration of a project support ed with federal assistance awarded by FTA. T. “Matching Funds” (Local Funds, or Local Match) means the funds provided by Subrecipient as a match required to receive the Grant Funds and includes in -kind contribution. U. “Party” means the State or Subrecipient, and “Parties” means both the State and Subrecipient. V. “PII” means personally identifiable information including, without limitation, any information maintained by the State about an individual that can be used to distinguish or trace an individual’s identity, such as name, social security number, date and place of birth, mother’s maiden name, or biometric records . PII includes, but is not limited to, all information defined as personally identifiable information in §§24 -72-501 and 24- 73-101, C.R.S. W. “Recipient” means the State agency shown on the Signature and Cover Page s of this Agreement, for the purposes of this Federal Award. X. “Services” means the services to be performed by Subrecipient as set forth in this Agreement and shall include any services to be rendered by Subrecipient in connection with the Goods. Y. “State Confidential Information” means any and all State Records not subject to disclosure under CORA. State Confidential Information shall include but is not limited to PII and State personnel records not subject to disclosure under CORA. State Confidential Information shall not include information or data concerning individuals that is not deemed confidential but nevertheless belongs to the State, which has been communicated, furnished, or disclosed by the State to Subrecipient which (i) is subject to disclosure pursuant to CORA; (ii) is already known to Subrecipient without restrictions at the time of its disclosure to Subrecipient; (iii) is or subsequently becomes publicly available without breach of any obligation owed by Subrecipient to the State; (iv) is disclosed to Subrecipient, without confidentiality obligations, by a third party DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 6 of 45 Version 10/23/19 who has the right to disclose such information; or (v) was independently developed without reliance on any State Confidential Information. Z. “State Fiscal Rules” means the fiscal rules promulgated by the Colorado State Controller pursuant to §24- 30-202(13)(a), C.R.S. AA. “State Fiscal Year” means a 12-month period beginning on July 1 of each calendar year and ending on June 30 of the following calendar year. If a single calendar year follows the term, t hen it means the State Fiscal Year ending in that calendar year. BB. “State Records” means any and all State data, information, and records regardless of physical form. CC. “Subaward Maximum Amount” means an amount equal to the total of Grant Funds for this Agreement. DD. “Subcontractor” means any third party engaged by Subrecipient to aid in performance of the Work. “Subcontractor” also includes sub -recipients of Grant Funds. EE. “Subrecipient” means a non-Federal entity that receives a sub-award from a Recipient to carry out part of a Federal program but does not include an individual that is a beneficiary of such program. A Subrecipient may also be a recipient of other Federal Awards directly from a Federal Awarding Agency. For the purposes of this Agreement, Contractor is a Subrecipient. FF. “Uniform Guidance” means the Office of Management and Budget Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2 CFR Part 200, commonly known as the “Super Circular, which supersedes requirements from OMB Circulars A-21, A-87, A-110, A-122, A-89, A- 102, and A-133, and the guidance in Circular A-50 on Single Audit Act follow-up. GG. “Work” means the Goods delivered and Services performed pursuant to this Agreement. HH. “Work Product” means the tangible and intangible results of the Work, whether finished or unfinished, including drafts. Work Product includes, but is not limited to, documents, text, software (including source code), research, reports, proposals, specifications, plans, notes, studies, data, images, photographs, negatives, pictures, drawings, designs, models, surveys, maps, materials, ideas, concepts, know-how, information, and any other results of the Work. “Work Product” does not include any material that was developed prior to the Effective Date that is used, without modification, in the performance of the Work. Any other term used in this Agreement that is defined elsewhere in this Agreement or in an Exhibit shall be construed and interpreted as defined in that section. 4. STATEMENT OF WORK AND BUDGET Subrecipient shall complete the Work as described in this Agreement and in accordance with the provisions of Exhibit A. The State shall have no liability to compen sate Subrecipient for the delivery of any goods or the performance of any services that are not specifically set forth in this Agreement. 5. PAYMENTS TO SUBRECIPIENT A. Subaward Maximum Amount Payments to Subrecipient are limited to the unpaid, obligated balance of the Grant Funds. The State shall not pay Subrecipient any amount under this Agreement that exceeds the Subaward Maximum Amount shown on the Cover Page of this Agreement as “Federal Funds Maximum Amount”. B. Payment Procedures i. Invoices and Payment a. The State shall pay Subrecipient in the amounts and in accordance with the schedule and other conditions set forth in Exhibit A. b. Subrecipient shall initiate payment requests by invoice to the State, in a form and manner approved by the State. c. The State shall pay each invoice within 45 days following the State’s receipt of that invoice, so long as the amount invoiced correctly represents Work completed by Subrecipient and previously accepted by the State during the term that the invoice covers. If the State determines that the amount of any invoice is not correct, then Subrecipient shall make all changes necessary to correct that invoice. d. The acceptance of an invoice shall not constitute acceptance of any Work performed or Deliverables provided under this Agreement. DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 7 of 45 Version 10/23/19 ii. Interest Amounts not paid by the State within 45 days of the State’s acceptance of the invoice shall bear interest on the unpaid balance beginning on the 45th day at the rate of 1% per month, as required by §24-30- 202(24)(a), C.R.S., until paid in full; provided, however, that interest shall not accrue on unpaid amounts that the State disputes in writing. Subrecipient shall invoice the State separately for accrued interest on delinquent amounts, and the invoice shall reference the delinquent payment, the number of days’ interest to be paid and the interest rate. iii. Payment Disputes If Subrecipient disputes any calculation, determination or amount of any payment, Subrecipient shall notify the State in writing of its dispute within 30 days following the earlier to occur of Subrecipient’s receipt of the payment or notification of the determination or calculation of the payment by the State. The State will review the information presented by Subrecipient and may make changes to its determination based on this review. The calculation, determination or payment amount that results from the State’s review shall not be subject to additional dispute under this subsection. No payment subject to a dispute under this subsection shall be due until after the State has concluded its review, and the State shall not pay any interest on any amount during the period it is subject to dispute under this subsection. iv. Available Funds-Contingency-Termination The State is prohibited by law from making commitments beyond the term of the current State Fiscal Year. Payment to Subrecipient beyond the current State Fiscal Year is contingent on the appropriation and continuing availability of Grant Funds in any subsequent year (as provided in the Colorado Special Provisions). If federal funds or funds from any other non-State funds constitute all or some of the Grant Funds, the State’s obligation to pay Subrecipient shall be contingent upon such non-State funding continuing to be made available for payment. Payments to be made pursuant to this Agreement shall be made only from Grant Funds, and the State’s liability for such payments shall be limited to the amount remaining of such Grant Funds. If State, federal or other funds are not appropriated, or otherwise become unavailable to fund this Agreement, the State may, upon written notice, terminate this Agreement, in whole or in part, without incurring further liability. The State shall, however, remain obligated to pay for Services and Goods that are delivered and accepted prior to the effective date of notice of termination, and this termination shall otherwise be treated as if this Agreement were terminated in the public interest as described in §2.E. v. Federal Recovery The close-out of a Federal Award does not affect the right of the Federal Awarding Agency or the State to disallow costs and recover funds on the basis of a later audit or other review. Any cost disallowance recovery is to be made within the Record Retention Period, as defined below. C. Matching Funds Subrecipient shall provide Matching Funds as provided in Exhibit A. Subrecipient shall have raised the full amount of Matching Funds prior to the Effective Date and shall report to the State regarding the status of such funds upon request. Subrecipient’s obligation to pay all or any part of any Matching Funds, whether direct or contingent, only extends to funds duly and lawfully appropriated for the purposes of this Agreement by the authorized representatives of Subrecipient and paid into Subrecipient’s treasury or bank account. Subrecipient represents to the State that the amount designated “Subrecipient’s Matching Funds” in Exhibit A has been legally appropriated for the purposes of this Agreement by its authorized representatives and paid into its treasury or bank account. Subrecipient does not by this Agreement irrevocably pledge present cash reserves for payments in future fiscal years, and this Agreement is not intended to create a multiple -fiscal year debt of Subrecipient. Subrecipient shall not pay or be liable for any claimed interest, late charges, fees, taxes or penalties of any nature, except as required by Subrecipient’s laws or policies. D. Reimbursement of Subrecipient Costs i. The State shall reimburse Subrecipient for the federal share of properly documented allowable costs related to the Work after review and approval thereof, subject to the provisions of §5, this Agreement, and Exhibit A. However, any costs incurred by Subrecipient prior to the Effective Date shall not be reimbursed absent specific allowance of pre-award costs and indication that the Federal Award funding is retroactive. The State shall pay Subrecipient for costs or expenses incurred or performance by the Subrecipient prior to the Effective Date, only if (1) the Grant Funds involve federal funding and (2) federal laws, rules, and regulations applicable to the Work provide for such retroactive payments to the DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 8 of 45 Version 10/23/19 Subrecipient. Any such retroactive payments shall comply with State Fiscal Rules and be ma de in accordance with the provisions of this Agreement. ii. The State shall reimburse Subrecipient’s allowable costs, not exceeding the Subaward Maximum Amount shown on the Cover Page of this Agreement and on Exhibit A for all allowable costs described in this Agreement and shown in Exhibit A, except that Subrecipient may adjust the amounts between each line item of Exhibit A without formal modification to this Agreement as long as the Subrecipient provides notice to the State of the change, the change does not modify the Subaward Maximum Amount or the Subaward Maximum Amount for any federal fiscal year or State Fiscal Year, and the change does not modify any requirements of the Work. iii. The State shall only reimburse allowable costs described in this Agreement and shown in the Budget if those costs are: a. Reasonable and necessary to accomplish the Work and for the Goods and Services provided; and b. Equal to the actual net cost to Subrecipient (i.e. the price paid minus any items of value received by Subrecipient that reduce the cost actually incurred). iv. Subrecipient’s costs for Work performed after the Fund Expenditure End Date shown on the Cover Page for this Agreement, or after any phase performance period end date for a respective phase of the W ork, shall not be reimbursable. Subrecipient shall initiate any payment request by submitting invoices to the State in the form and manner set forth and approved by the State . E. Close-Out Subrecipient shall close out this Award within 45 days after the Fund Expenditure End Date shown on the Cover Page for this Agreement. To complete close-out, Subrecipient shall submit to the State all Deliverables (including documentation) as defined in this Agreement and Subrecipient’s final reimbursement request or invoice. The State will withhold 5% of allowable costs until all final documentation has been submitted and accepted by the State as substantially complete. If the Federal Awarding Agency has not closed this Federal Award within one year and 90 days after the Fund Expenditure End Date shown on the Cover Page for this Agreement due to Subrecipient’s failure to submit required documentation, then Subrecipient may be prohibited from applying for new Federal Awards through the State until such documentation is submitted and accepted. 6. REPORTING - NOTIFICATION A. Quarterly Reports In addition to any reports required pursuant to any other Exhibit, for any Agreement having a term longer than three months, Subrecipient shall submit, on a quarterly basis, a written repor t specifying progress made for each specified performance measure and standard in this Agreement. Such progress report shall be in accordance with the procedures developed and prescribed by the State. Progress reports shall be submitted to the State not later than five Business Days following the end of each calendar quarter or at such time as otherwise specified by the State. B. Litigation Reporting If Subrecipient is served with a pleading or other document in connection with an action before a court or other administrative decision making body, and such pleading or document relates to this Agreement or may affect Subrecipient’s ability to perform its obligations under this Agreement, Subrecipient shall, within 10 days after being served, notify the State of such action and deliver copies of such pleading or document to the State’s Principal Representative identified on the Cover Page for this Agreement. C. Performance and Final Status Subrecipient shall submit all financial, performance and other reports to the State no later than 45 calendar days after the end of the Initial Term if no Extension Terms are exercised, or the final Extension Term exercised by the State, containing an evaluation and review of Subrecipient’s performance and the final status of Subrecipient’s obligations hereunder. D. Violations Reporting Subrecipient shall disclose, in a timely manner, in writing to the State and the Federal Awarding Agency, all violations of federal or State criminal law involving fraud, bribery, or gratuity violations potentially affecting the Federal Award. The State or the Federal Awarding Agency may impose any penalties for noncompliance DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 9 of 45 Version 10/23/19 allowed under 2 CFR Part 180 and 31 U.S.C. 3321, which may include, without limitation, suspension or debarment. 7. SUBRECIPIENT RECORDS A. Maintenance Subrecipient shall make, keep, maintain, and allow inspection and monitoring by the State of a complete file of all records, documents, communications, notes and other written materials, electronic media files, and communications, pertaining in any manner to the Work and the delivery of Services (including, but not limited to the operation of programs) or Goods hereunder (collectively, the “Subrecipient Records”). Subrecipient shall maintain such records for a period of three years following the date of submission to the State of the final expenditure report, or if this Award is renewed quarterly or annually, from the date of the submission of each quarterly or annual report, respectively (the “Record Retention Period”). If any litigation, claim, or audit related to this Award starts before expiration of the Record Retention Period, the Record Retention Period shall extend until all litigation, claims, or audit findings have been resolved and final action taken by the State or Federal Awarding Agency. The Federal Awarding Agency, a cognizant agency for audit, oversight or indirect costs, and the State, may notify Subrecipient in writing that the Record Retention Period shall be extended. For records for real property and equipment, the Record Retention Period shall extend three years following final disposition of such property. B. Inspection Subrecipient shall permit the State, the federal government, and any other duly authorized agent of a governmental agency to audit, inspect, examine, excerpt, copy and transcribe Subrecipient Records during the Record Retention Period. Subrecipient shall make Subrecipient Records available during normal business hours at Subrecipient’s office or place of business, or at other mutually agreed upon times or locations, upon no fewer than two Business Days’ notice from the State, unless the State determines that a shorter period of notice, or no notice, is necessary to protect the interests of the State. C. Monitoring The State, the federal government, and any other duly authorized agent of a governmental agency, in its discretion, may monitor Subrecipient’s performance of its obligations under this Agreement using procedures as determined by the State or that governmental entity. Subrecipient shall allow the State to perform all monitoring required by the Uniform Guidance, based on the State’s risk analysis of Subrecipient and this Agreement. The State shall have the right, in its sole discretion, to change its monitoring procedures and requirements at any time during the term of this Agreement. The State shall monitor Subrecipient’s performance in a manner that does not unduly interfere with Subrecipient’s performance of the Work. D. Final Audit Report Subrecipient shall promptly submit to the State a copy of any final audit report of an audit performed on Subrecipient’s records that relates to or affects this Agreement or the Work, whether the audit is conducted by Subrecipient or a third party. Additionally, if Subrecipient is required to perform a single audit under 2 CFR 200.501, et. seq., then Subrecipient shall submit a copy of the results of that audit to the State within the same timelines as the submission to the federal government. 8. CONFIDENTIAL INFORMATION - STATE RECORDS A. Confidentiality Subrecipient shall keep confidential, and cause all Subcontractors to keep confidential, all State Records, unless those State Records are publicly available. Subrecipient shall not, without prior written approval of the State, use, publish, copy, disclose to any third party, or permit the use by any third party of any State Records, except as otherwise stated in this Agreement, permitted by law or approved in writing by the State. Subrecipient shall provide for the security of all State Confidential Information in accordance with all applicable laws, rules, policies, publications, and guidelines. Subrecipient shall immediately forward any request or demand for State Records to the State’s Principal Representative identified on the Cover Page of the Agreement. B. Other Entity Access and Nondisclosure Agreements Subrecipient may provide State Records to its agents, employees, assigns and Subcontractors as necessary to perform the Work, but shall restrict access to State Confidential Information to those agents, employees, assigns and Subcontractors who require access to perform their obligations under this Agreement. DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 10 of 45 Version 10/23/19 Subrecipient shall ensure all such agents, employees, assigns, and Subcontractors sign agreements containing nondisclosure provisions at least as protective as those in this Agreement, and that the nondisclosure provisions are in force at all times the agent, employee, assign or Subcontractor has access to any State Confidential Information. Subrecipient shall provide copies of those signed nondisclosure provisions to the State upon execution of the nondisclosure provisions if requested by the State. C. Use, Security, and Retention Subrecipient shall use, hold and maintain State Confidential Information in compliance with any and all applicable laws and regulations only in facilities located within the United States, and shall maintain a secure environment that ensures confidentiality of all State Confidential Information. Subrecipient shall provide the State with access, subject to Subrecipient’s reasonable security requirements, for purposes of inspecting and monitoring access and use of State Confidential Information and evaluating security control effectiveness. Upon the expiration or termination of this Agreement, Subrecipient shall return State Records provided to Subrecipient or destroy such State Records and certify to the State that it has done so, as directed by the State. If Subrecipient is prevented by law or regulation from returning or destroying State Confidential Informat ion, Subrecipient warrants it will guarantee the confidentiality of, and cease to use, such State Confidential Information. D. Incident Notice and Remediation If Subrecipient becomes aware of any Incident, Subrecipient shall notify the State immediately an d cooperate with the State regarding recovery, remediation, and the necessity to involve law enforcement, as determined by the State. Unless Subrecipient can establish that Subrecipient and its agents, employees, and Subcontractors are not the cause or source of the Incident, Subrecipient shall be responsible for the cost of notifying each person who may have been impacted by the Incident. After an Incident, Subrecipient shall take steps to reduce the risk of incurring a similar type of Incident in the future as directed by the State, which may include, but is not limited to, developing and implementing a remediation plan that is approved by the State at no additional cost to the State. The State may adjust or direct modifications to this plan, in its sole discretion and Subrecipient shall make all modifications as directed by the State. If Subrecipient cannot produce its analysis and plan within the allotted time, the State, in its sole discretion, may perform such analysis and produce a remediation plan, and Subrecipient shall reimburse the State for the reasonable costs thereof. The State may, in its sole discretion and at Subrecipient’s sole expense, require Subrecipient to engage the services of an independent, qualified, State-approved third party to conduct a security audit. Subrecipient shall provide the State with the results of such audit and evidence of Subrecipient’s planned remediation in response to any negative findings. E. Data Protection and Handling Subrecipient shall ensure that all State Records and Work Product in the possession of Subrecipient or any Subcontractors are protected and handled in accordance with the requirements of this Agreement, including the requirements of any Exhibits hereto, at all times. As used in this section, the protections afforded Work Product only apply to Work Product that requires confidential treatment. F. Safeguarding PII If Subrecipient or any of its Subcontractors will o r may receive PII under this Agreement, Subrecipient shall provide for the security of such PII, in a manner and form acceptable to the State, including, without limitation, State non-disclosure requirements, use of appropriate technology, security practic es, computer access security, data access security, data storage encryption, data transmission encryption, security inspections, and audits. Subrecipient shall be a “Third -Party Service Provider” as defined in §24-73- 103(1)(i), C.R.S., and shall maintain security procedures and practices consistent with §§24-73-101 et seq., C.R.S. 9. CONFLICTS OF INTEREST A. Actual Conflicts of Interest Subrecipient shall not engage in any business or activities or maintain any relationships that conflict in any way with the full performance of the obligations of Subrecipient under this Agreement. Such a conflict of interest would arise when a Subrecipient or Subcontractor’s employee, officer or agent were to offer or provide any tangible personal benefit to an employee of the State, or any member of his or her immediate family or his or her partner, related to the award of, entry into or management or oversight of this Agreement. DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 11 of 45 Version 10/23/19 B. Apparent Conflicts of Interest Subrecipient acknowledges that, with respect to this Agreement, even the appearance of a conflict of interest shall be harmful to the State’s interests. Absent the State’s prior written approval, Subrecipient shall refrain from any practices, activities or relationships that reasonably app ear to be in conflict with the full performance of Subrecipient’s obligations under this Agreement. C. Disclosure to the State If a conflict or the appearance of a conflict arises, or if Subrecipient is uncertain whether a conflict or the appearance of a conflict has arisen, Subrecipient shall submit to the State a disclosure statement setting forth the relevant details for the State’s consideration. Failure to promptly submit a disclosure statement or to follow the State’s direction in regard to the actual or apparent conflict constitutes a breach of this Agreement. D. Subrecipient acknowledges that all State employees are subject to the ethical principles described in §24-18- 105, C.R.S. Subrecipient further acknowledges that State employees may be subject to the requirements of §24-18-105, C.R.S., with regard to this Agreement. For the avoidance of doubt, an actual or apparent conflict of interest shall exist if Subrecipient employs or contracts with any State employee, any former State employee within six months following such employee’s termination of employment with the State, or any immediate family member of such current or former State employee. Subrecipient shall provide a disclosure statement as described in §9.C. no later than ten days following entry into a contractual or employment relationship as described in this section. Failure to timely submit a disclosure statement shall constitute a Breach of Agreement. Subrecipient may also be subject to such penalties as are allowed by law. 10. INSURANCE Subrecipient shall obtain and maintain, and ensure that each Subcontractor shall obtain and maintain, insurance as specified in this section at all times during the term of this Agreement. All insurance policies required by this Agreement that are not provided through self-insurance shall be issued by insurance companies as approved by the State. A. Workers’ Compensation Workers’ compensation insurance as required by state statute, and employers’ liability insurance covering all Subrecipient or Subcontractor employees acting within the course and scope of their employment. B. General Liability Commercial general liability insurance covering premises operations, fire damage, independent contractors, products and completed operations, blanket contractual liability, personal injury, and advertising liability with minimum limits as follows: i. $1,000,000 each occurrence; ii. $1,000,000 general aggregate; iii. $1,000,000 products and completed operations aggregate; and iv. $50,000 any 1 fire. C. Automobile Liability Automobile liability insurance covering any auto (including owned, hired and non -owned autos) with a minimum limit of $1,000,000 each accident combined single limit . D. Additional Insured The State shall be named as additional insured on all commercial general liability policies (leases and construction contracts require additional insured coverage for completed operations) required of Subrecipient and Subcontractors. E. Primacy of Coverage Coverage required of Subrecipient and each Subcontractor shall be primary over any insurance or self- insurance program carried by Subrecipient or the State. F. Cancellation All insurance policies shall include provisions preventing cancellation or non -renewal, except for cancellation based on non-payment of premiums, without at least 30 days prior notice to Subrecipient and DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 12 of 45 Version 10/23/19 Subrecipient shall forward such notice to the State in accordance with §14 within seven days of Subrecipient’s receipt of such notice. G. Subrogation Waiver All insurance policies secured or maintained by Subrecipient or its Subcontractors in relation to this Agreement shall include clauses stating that each carrier shall waive all rights of recovery under subrogation or otherwise against Subrecipient or the State, its agencies, institutions, organizations, officers, agents, employees, and volunteers. H. Public Entities If Subrecipient is a "public entity" within the meaning of the Colorado Governmental Immunity Act, §24 - 10-101, et seq., C.R.S. (the “GIA”), Subrecipient shall maintain, in lieu of the liability insurance requirements stated above, at all times during the term of this Agreement such liability insurance, by commercial policy or self-insurance, as is necessary to meet its liabilities under the GIA. If a Subcontractor is a public entity within the meaning of the GIA, Subrecipient shall ensure that the Subcontractor maintain at all times during the terms of this Subrecipient, in lieu of the liability insurance requirements stated above, such liability insurance, by commercial policy or self-insurance, as is necessary to meet the Subcontractor’s obligations under the GIA. I. Certificates For each insurance plan provided by Subrecipient under this Agreement, Subrecipient shall provide to the State certificates evidencing Subrecipient’s insurance coverage required in this Agreement prior to the Effective Date. Subrecipient shall provide to the State certificates evidencing Subcontractor insurance coverage required under this Agreement prior to the Effective Date, except that, if Subrecipient’s subcontract is not in effect as of the Effective Date, Subrecipient shall provide to the State certificates showing Subcontractor insurance coverage required under this Agreement within seven Business Days following Subrecipient’s execution of the subcontract. No later than 15 days before the expiration date of Subrecipient’s or any Subcontractor’s coverage, Subrecipient shall deliver to the State certificates of insurance evidencing renewals of coverage. At any other time during the term of this Agreement, upon request by the State, Subrecipient shall, within seven Business Days following the request by the State, supply to the State evidence satisfactory to the State of compliance with the provisions of this section. 11. BREACH OF AGREEMENT In the event of a Breach of Agreement, the aggrieved Party shall give written notice of breach to the other Party. If the notified Party does not cure the Breach of Agreement, at its sole expense, within 30 days after the delivery of written notice, the Party may exercise any of the remedies as described in §12 for that Party. Notwithstanding any provision of this Agreement to the contrary, the State, in its discretion, need not provide notice or a cure period and may immediately terminate this Agreement in whole or in part or institute any other remedy in this Agreement in order to protect the public interest of the State; or if Subrecipient is debarred or suspended under §24-109-105, C.R.S., the State, in its discretion, need not provide notice or cure period and may terminate this Agreement in whole or in part or institute any other remedy in this Agreement as of the date that the debarment or suspension takes effect. 12. REMEDIES A. State’s Remedies If Subrecipient is in breach under any provision of this Agreement and fails to cure such breach, the State, following the notice and cure period set forth in §11, shall have all of the remedies listed in this section in addition to all other remedies set forth in this Agreement or at law. The State may exercise any or all of the remedies available to it, in its discretion, concurrently or consecutively. i. Termination for Breach of Agreement In the event of Subrecipient’s uncured breach, the State may terminate this entire Agreement or any part of this Agreement. Additionally, if Subrecipient fails to comply with any terms of the Federal Award, then the State may, in its discretion or at the direction of a Federal Awarding Agency, terminate this entire Agreement or any part of this Agreement. Subrecipient shall continue performance of this Agreement to the extent not terminated, if any. DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 13 of 45 Version 10/23/19 a. Obligations and Rights To the extent specified in any termination notice, Subrecipient shall not incur further obligations or render further performance past the effecti ve date of such notice, and shall terminate outstanding orders and subcontracts with third parties. However, Subrecipient shall complete and deliver to the State all Work not cancelled by the termination notice, and may incur obligations as necessary to do so within this Agreement’s terms. At the request of the State, Subrecipient shall assign to the State all of Subrecipient’s rights, title, and interest in and to such terminated orders or subcontracts. Upon termination, Subrecipient shall take timely, reasonable and necessary action to protect and preserve property in the possession of Subrecipient but in which the State has an interest. At the State’s request, Subrecipient shall return materials owned by the State in Subrecipient’s possession at the time of any termination. Subrecipient shall deliver all completed Work Product and all Work Product that was in the process of completion to the State at the State’s request. b. Payments Notwithstanding anything to the contrary, the State shall only pay Subrecipient for accepted Work received as of the date of termination. If, after termination by the State, the State agrees that Subrecipient was not in breach or that Subrecipient’s action or inaction was excusable, such termination shall be treated as a termination in the public interest, and the rights and obligations of the Parties shall be as if this Agreement had been terminated in the public interest under §2.E. c. Damages and Withholding Notwithstanding any other remedial action by the State, Subrecipient shall remain liable to the State for any damages sustained by the State in connection with any breach by Subrecipient, and the State may withhold payment to Subrecipient for the purpose of mitigating the State’s damages until such time as the exact amount of damages due to the State from Subrecipient is determined. The State may withhold any amount that may be due Subrecipient as the State deems necessary to protect the State against loss including, without limitation, loss as a result of outstanding liens and excess costs incurred by the State in procuring from third parties replacement Work as cover. ii. Remedies Not Involving Termination The State, in its discretion, may exercise one or more of the following additional remedies: a. Suspend Performance Suspend Subrecipient’s performance with respect to all or any portion of the Work pending corrective action as specified by the State without entitling Subrecipient to an adjustment in price or cost or an adjustment in the performance schedule. Subrecipient shall promptly cease performing Work and incurring costs in accordance with the State’s directive, and the State shall not be liable for costs incurred by Subrecipient after the suspension of performance. b. Withhold Payment Withhold payment to Subrecipient until Subrecipient corrects its Work. c. Deny Payment Deny payment for Work not performed, or that due to Subrecipient’s actions or inactions, cannot be performed or if they were performed are reasonably of no value to the state ; provided, that any denial of payment shall be equal to the value of the obligations not performed. d. Removal Demand immediate removal of any of Subrecipient’s employees, agents, or Subcontractors from the Work whom the State deems incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable or whose continued relation to this Agreement is deemed by the State to be contrary to the public interest or the State’s best interest. e. Intellectual Property If any Work infringes, or if the State in its sole discretion determines that any Work is likely to infringe, a patent, copyright, trademark, trade secret or other intellectual property right, Subrecipient shall, as approved by the State (i) secure that right to use such Work for the State and Subrecipient; DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 14 of 45 Version 10/23/19 (ii) replace the Work with noninfringing Work or modify the Work so that it becomes noninfringing; or, (iii) remove any infringing Work and refund the amount paid for such Work to the State. B. Subrecipient’s Remedies If the State is in breach of any provision of this Agreement and does not cure such breach, Subrecipient, following the notice and cure period in §11 and the dispute resolution process in §13 shall have all remedies available at law and equity. 13. DISPUTE RESOLUTION A. Initial Resolution Except as herein specifically provided otherwise, disputes concerning the performance of this Agreement which cannot be resolved by the designated Agreement representatives shall be referred in writing to a senior departmental management staff member designated by the State and a senior manager designated by Subrecipient for resolution. B. Resolution of Controversies If the initial resolution described in §13.A fails to resolve the dispute within 10 Business Days, Subrecipient shall submit any alleged breach of this Agreement by the State to the Procurement Official of the State Agency named on the Cover Page of this Agreement as described in §24-101-301(30), C.R.S., for resolution following the same resolution of controversies process as describe d in §§24-106-109, and 24-109-101.1 through 24-109-505, C.R.S., (collectively, the “Resolution Statutes”), except that if Subrecipient wishes to challenge any decision rendered by the Procurement Official, Subrecipient’s challenge shall be an appeal to the executive director of the Department of Personnel and Administration, or their delegate, in the same manner as described in the Resolution Statutes before Subrecipient pursues any further action. Except as otherwise stated in this Section, all requirement s of the Resolution Statutes shall apply including, without limitation, time limitations regardless of whether the Colorado Procurement Code applies to this Agreement . 14. NOTICES and REPRESENTATIVES Each individual identified as a Principal Representative on the Cover Page for this Agreement shall be the principal representative of the designating Party. All notices required or permitted to be given under this Agreement shall be in writing, and shall be delivered (A) by hand with receipt required, (B) by certified or registered mail to such Party’s principal representative at the address set forth on the Cover Page for this Agreement or (C) as an email with read receipt requested to the principal representative at the email address, if any, set forth on the Cover Page for this Agreement. If a Party delivers a notice to another through email and the email is undeliverable, then, unless the Party has been provided with an alternate email contact, the Party delivering the notice shall deliver the notice by hand with receipt required or by certified or registered mail to such Party’s principal representative at the address set forth on the Cover Page for this Agreement. Either Party may change its principal representative or principal representative contact information, or may designate specific other individuals to receive certain types of notices in addition to or in lieu of a principal representative, by notice submitted in accordance with this section without a formal amendment to this Agreement. Unless otherwise provided in this Agreement, notices shall be effective upon delivery of the written notice. 15. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION A. Work Product Subrecipient agrees to provide to the State a royalty-free, non-exclusive and irrevocable license to reproduce publish or otherwise use and to authorize others to use the Work Product described herein, for the Federal Awarding Agency’s and State’s purposes. All Work Product shall be delivered to the State by Subrecipient upon completion or termination hereof. B. Exclusive Property of the State Except to the extent specifically provided elsewhere in this Agreement, all State Records, documents, text, software (including source code), research, reports, proposals, specifications, plans, notes, studies, data, images, photographs, negatives, pictures, drawings, designs, models, surveys, maps, materials, ideas, concepts, know-how, and information provided by or on behalf of the State to Subrecipient are the exclusive property of the State (collectively, “State Materials”). Subrecipient shall not use, willingly allow, cause or permit Work Product or State Materials to be used for any purpose other than the performan ce of Subrecipient’s obligations in this Agreement without the prior written consent of the State. Upon termination DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 15 of 45 Version 10/23/19 of this Agreement for any reason, Subrecipient shall provide all Work Product and State Materials to the State in a form and manner as directed by the State. C. Exclusive Property of Subrecipient Subrecipient retains the exclusive rights, title, and ownership to any and all pre -existing materials owned or licensed to Subrecipient including, but not limited to, all pre-existing software, licensed products, associated source code, machine code, text images, audio and/or video, and third -party materials, delivered by Subrecipient under this Agreement, whether incorporated in a Deliverable or necessary to use a Deliverable (collectively, “Subrecipient Property”). Subrecipient Property shall be licensed to the State as set forth in this Agreement or a State approved license agreement: (i) entered into as exhibits to this Agreement, (ii) obtained by the State from the applicable third-party vendor, or (iii) in the case of open source software, the license terms set forth in the applicable open source license agreement. 16. GENERAL PROVISIONS A. Assignment Subrecipient’s rights and obligations under this Agreement are personal and may not be transferred or assigned without the prior, written consent of the State. Any attempt at assignment or transfer without such consent shall be void. Any assignment or transfer of Subrecipient’s rights and obligations approved by the State shall be subject to the provisions of this Agreement. B. Subcontracts Subrecipient shall not enter into any subaward or subcontract in connection with its obligations under this Agreement without the prior, written approval of the State. Subrecipient shall submit to the State a copy of each such subaward or subcontract upon request by the State. All subawards and subcontracts entered into by Subrecipient in connection with this Agreement shall comply with all applicable federal and state laws and regulations, shall provide that they are governed by the laws of the State of Colorado, and shall be subject to all provisions of this Agreement. If the entity with whom Subrecipient enters into a subcontract or subaward would also be considered a Subrecipient, then the subcontract or subaward entered into by Subrecipient shall also contain provisions permitting both Subrecipient and the State to perform all monitoring of that Subcontractor in accordance with the Uniform Guidance. C. Binding Effect Except as otherwise provided in §16.A, all provisions of this Agreement, including the benefits and burdens, shall extend to and be binding upon the Parties’ respective successors and assigns. D. Authority Each Party represents and warrants to the other that the execution and delivery of this Agreement and the performance of such Party’s obligations have been duly authorized. E. Captions and References The captions and headings in this Agreement are for convenience of reference only, and shall not be used to interpret, define, or limit its provisions. All references in this Agreement to sections (whether spelled out or using the § symbol), subsections, exhibits or other attachments, are references to sections, subsections, exhibits or other attachments contained herein or incorporated as a part hereof, unless otherwise noted. F. Counterparts This Agreement may be executed in multiple, identical, original counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. G. Entire Understanding This Agreement represents the complete integration of all understandings between the Parties related to the Work, and all prior representations and understandings related to the Work, oral or written, are merged into this Agreement. Prior or contemporaneous additions, deletions, or other changes to this Agreement shall not have any force or effect whatsoever, unless embodied herein. H. Digital Signatures If any signatory signs this Agreement using a digital signature in accordance with the Colorado State Controller Contract, Grant and Purchase Order Policies regarding the use of digital signatures issued under the State Fiscal Rules, then any agreement or consent to use digital signatures within the electronic system through which that signatory signed shall be incorporated into this Agreement by reference. DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 16 of 45 Version 10/23/19 I. Modification Except as otherwise provided in this Agreement, any modification to this Agreement shall only be effective if agreed to in a formal amendment to this Agreement, prop erly executed and approved in accordance with applicable Colorado State law and State Fiscal Rules. Modifications permitted under this Agreement, other than Agreement amendments, shall conform to the policies issued by the Colorado State Controller. J. Statutes, Regulations, Fiscal Rules, and Other Authority. Any reference in this Agreement to a statute, regulation, State Fiscal Rule, fiscal policy or other authority shall be interpreted to refer to such authority then current, as may have been changed or amended since the Effective Date of this Agreement. K. External Terms and Conditions Notwithstanding anything to the contrary herein, the State shall not be subject to any provision included in any terms, conditions, or agreements appearing on Subrecipient’s or a Subcontractor’s website or any provision incorporated into any click-through or online agreements related to the Work unless that provision is specifically referenced in this Agreement. L. Severability The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect, provided that the Parties can continue to perform their obligations under this Agreement in accordance with the intent of this Agreement. M. Survival of Certain Agreement Terms Any provision of this Agreement that imposes an obligation on a Party after termination or expiration of this Agreement shall survive the termination or expiration of this Agreement and shall be enforceable by the other Party. N. Taxes The State is exempt from federal excise taxes under I.R.C. Chapter 32 (26 U.S.C., Subtitle D, Ch. 32) (Federal Excise Tax Exemption Certificate of Registry No. 84-730123K) and from State and local government sales and use taxes under §§39-26-704(1), et seq., C.R.S. (Colorado Sales Tax Exemption Identification Number 98-02565). The State shall not be liable for the payment of any excise, sales, or use taxes, regardless of whether any political subdivision of the State imposes such taxes on Subrecipient. Subrecipient shall be solely responsible for any exemptions from the collection of excise, sales or use taxes that Subrecipient may wish to have in place in connection with this Agreement. O. Third Party Beneficiaries Except for the Parties’ respective successors and assigns described in §16.A, this Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than the Parties. Enforcement of this Agreement and all rights and obligations hereunder are reserved solely to the Parties. Any services or benefits which third parties receive as a result of this Agreement are incidental to this Agreement, and do not create any rights for such third parties. P. Waiver A Party’s failure or delay in exercising any right, power, or privilege under this Agreement, whether explicit or by lack of enforcement, shall not operate as a waiver, nor shall any single or partial exercise of any right, power, or privilege preclude any other or further exercise of such right, power, or privilege. Q. CORA Disclosure To the extent not prohibited by federal law, this Agreement and the performance measures and standards required under §24-106-107, C.R.S., if any, are subject to public release through the CORA. R. Standard and Manner of Performance Subrecipient shall perform its obligations under this Agreement in accordance with the highest standards of care, skill and diligence in Subrecipient’s industry, trade, or profession. S. Licenses, Permits, and Other Authorizations i. Subrecipient shall secure, prior to the Effective Date, and maintain at all times during the term of this Agreement, at its sole expense, all licenses, certifications, permits, and other authorizations required to perform its obligations under this Agreement, and shall ensure that all employees, agents and Subcontractors secure and maintain at all times during the term of their employment, agency or DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 17 of 45 Version 10/23/19 Subcontractor, all license, certifications, permits and other authorizations required to perform their obligations in relation to this Agreement. ii. Subrecipient, if a foreign corporation or other foreign entity transacting business in the State of Colorado, shall obtain prior to the Effective Date and maintain at all times during the term of this Agreement, at its sole expense, a certificate of authority to transact business in the State of Colorado and designate a registered agent in Colorado to accept service of process. T. Federal Provisions Subrecipient shall comply with all applicable requirements of Exhibits C and D at all times during the term of this Agreement. 17. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3) These Special Provisions apply to all agreements except where noted in italics. A. STATUTORY APPROVAL. §24-30-202(1), C.R.S. This Agreement shall not be valid until it has been approved by the Colorado State Controller or designee. If this Agreement is for a Major Information Technology Project, as defined in §24 -37.5-102(2.6), C.R.S., then this Agreement shall not be valid until it has been approved by the State’s Chief Information Officer or designee. B. FUND AVAILABILITY. §24-30-202(5.5), C.R.S. Financial obligations of the State payable after the current State Fiscal Year are contingent upon f unds for that purpose being appropriated, budgeted, and otherwise made available . C. GOVERNMENTAL IMMUNITY. Liability for claims for injuries to persons or property arising from the negligence of the State, its departments, boards, commissions committees, bureaus, offices, employees and officials shall be controlled and limited by the provisions of the Colorado Governmental Immunity Act, §24 -10-101, et seq., C.R.S.; the Federal Tort Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b), and the State’s risk management statutes, §§24-30-1501, et seq. C.R.S. No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, contained in these statutes. D. INDEPENDENT CONTRACTOR. Subrecipient shall perform its duties hereunder as an independent contractor and not as an employee. Neither Subrecipient nor any agent or employee of Subrecipient shall be deemed to be an agent or employee of the State. Subrecipient shall not have authorization, express or implied, to bind the State to any agreement, liability or understanding, except as expressly set forth herein. Subrecipient and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise provide such coverage for Subrecipient or any of its agents or employees. Subrecipient shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this Agreement. Subrecipient shall (i) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (ii) provide proof thereof when requested by the State, an d (iii) be solely responsible for its acts and those of its employees and agents. E. COMPLIANCE WITH LAW. Subrecipient shall comply with all applicable federal and State laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices. F. CHOICE OF LAW, JURISDICTION, AND VENUE. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Agreement. Any provision included or incorporated herein by reference which conflicts with said laws, rules, and regulations shall be null and void. All suits or actions related to this Agreement shall be filed and proceedings held in the State of Col orado and exclusive venue shall be in the City and County of Denver. DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 18 of 45 Version 10/23/19 G. PROHIBITED TERMS. Any term included in this Agreement that requires the State to indemnify or hold Subrecipient harmless; requires the State to agree to binding arbitration; limits Subrecipient’s liability for damages resulting from death, bodily injury, or damage to tangible property; or that conflicts with this provision in any way shall be void ab initio. Nothing in this Agreement shall be construed as a waiver of any provision of §24-106-109, C.R.S. H. SOFTWARE PIRACY PROHIBITION. State or other public funds payable under this Agreement shall not be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. Subrecipient hereby certifies and warrants that, during the term of this Agreement and any extensions, Subrecipient has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that Subrecipient is in violation of this provision, the State may exercise any remedy available at law or in equity or under this Agreement, including, without limitation, immediate termination of this Agreement and any remedy consistent with federal copyright laws or applicable licensing restrictions. I. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. §§24-18-201 and 24-50-507, C.R.S. The signatories aver that to their knowledge, no employee of the State has any personal or beneficial inter est whatsoever in the service or property described in this Agreement. Subrecipient has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of Subrecipient’s services and Subrecipient shall not employ any person having such known interests. J. VENDOR OFFSET AND ERRONEOUS PAYMENTS. §§24-30-202(1) and 24-30-202.4, C.R.S. [Not applicable to intergovernmental agreements] Subject to §24-30-202.4(3.5), C.R.S., the State Controller may withhold payment under the State’s vendor offset intercept system for debts owed to State agencies for: (i) unpaid child support debts or child support arrearages; (ii) unpaid balances of tax, accrued interest, or other charges specified in §§39-21-101, et seq., C.R.S.; (iii) unpaid loans due to the Student Loan Division of the Department of Higher Education; (iv) amounts required to be paid to the Unemployment Compensation Fund; and (v) other unpaid debts owing to the State as a result of final agency determination or judicial action. The State may also recover, at the State’s discretion, payments made to Subrecipient in error for any reason, including, but not limited to, overpayments or improper payments, and unexpended or excess funds received by Subrecipient by deduction from subsequent payments under this Agreement, deduction from any payment due under any other contracts, grants or agreements between the State and Subrecipient, or by any other appropriate method for collecting debts owed to the State. K. PUBLIC CONTRACTS FOR SERVICES. §§8-17.5-101, et seq., C.R.S. [Not applicable to agreements relating to the offer, issuance, or sale of securities, investment advisory services or fund management services, sponsored projects, intergovernmental agreements, or information technology services or products and services] Subrecipient certifies, warrants, and agrees that it does not knowingly employ or contract with an illegal alien who wil l perform work under this Agreement and will confirm the employment eligibility of all employees who are newly hired for employment in the United States to perform work under this Agreement, through participation in the E-Verify Program or the State verification program established pursuant to §8-17.5-102(5)(c), C.R.S., Subrecipient shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or enter into a contract with a Subcontractor that fails to certify to Subrecipient that the Subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. Subrecipient (i) shall not use E-Verify Program or the program procedures of the Colorado Department of Labor and Employment (“De partment Program”) to undertake pre-employment screening of job applicants while this Agreement is being performed, (ii) shall notify the Subcontractor and the contracting State agency or institution of higher education within three days if Subrecipient has actual knowledge that a Subcontractor is employing or contracting with an illegal alien for work under this Agreement, (iii) shall terminate the subcontract if a Subcontractor does not stop employing or contracting with the illegal alien within three days of receiving the notice, and (iv) shall comply with reasonable requests made in the course of an investigation, undertaken pursuant to §8-17.5-102(5), C.R.S., by the Colorado Department of Labor and Employment. If Subrecipient participates in the Department program, Subrecipient shall deliver to the contracting State agency, Institution of Higher Education or political subdivision, a written, notarized affirmation, affirming that Subrecipient has examined the legal work status of such employee, and shall comply with all of the other requirements of the DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 19 of 45 Version 10/23/19 Department program. If Subrecipient fails to comply with any requirement of this provision or §§8-17.5-101, et seq., C.R.S., the contracting State agency, institution of higher education or political subdiv ision may terminate this Agreement for breach and, if so terminated, Subrecipient shall be liable for damages. L. PUBLIC CONTRACTS WITH NATURAL PERSONS. §§24-76.5-101, et seq., C.R.S. Subrecipient, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that Subrecipient (i) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (ii) shall comply with the provisions of §§24 -76.5-101, et seq., C.R.S., and (iii) has produced one form of identification required by §24-76.5-103, C.R.S., prior to the Effective Date of this Agreement. DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 20 of 45 Version 10/23/19 EXHIBIT A, STATEMENT OF WORK AND BUDGET Project Description* 2020 5339(c.)-Two (2) Electric Vehicles Federal Awarding Agency Federal Transit Administration (FTA) Federal Regional Contact Cindy Terwilliger Federal Award Date To Be Determined Project End Date December 31, 2022 FAIN To Be Determined CFDA # 20.526 CFDA Title Bus and Bus Facilities Grants Program Subrecipient Town of Avon DUNS # 146666065 Contact Name Eva Wilson Vendor # 2000101 Address 100 Mikaela Way Avon, CO 81620-0975 Phone # (970) 748-4111 Email ewilson@avon.org Indirect Rate N/A WBS** 20-39-0023.AVON.111 ALI 11.12.02, 11.52.03 Total Project Budget $2,000,000.00 Federal FTA-5339 Funds (at 80% or less) $1,600,000.00 Local Funds (at 20% or more) $400,000.00 Total Project Amount Encumbered via this Subaward Agreement $2,000,000.00 *This is not a research and development grant. **The WBS numbers may be replaced without changing the amount of the subaward at CDOT’s discretion. A. Project Description Town of Avon shall use 2021 FTA-5339 (C) funds, along with local matching funds, to replace two , out of useful life, diesel buses with two (2) critical needed 35’ Proterra electric buses and leverage three Proterra electric bus charging stations, as more fully described below. The purchase will support the goals of the Statewide T ransit Plan. Town of Avon shall use capital funds to purchase the following ADA vehicles and Capital Assets: ALI QTY Fuel Type Description FTA Amount 11.12.02 2 Elec Two ADA Electric Buses $1,600,000 The Capital Asset(s) being purchased is/are replacing the following existing fleet vehicles: VIN Fleet ID COTRAMS Inventory Year Model Make 15GCB211931112328 850 INV-00004792 2003 Phantom Gillig Corp 15GGB271071077855 854 INV-00004796 2007 Phantom Gillig Corp DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 21 of 45 Version 10/23/19 B. Performance Standards 1. Project Milestones 2. Town of Avon shall use the Capital Asset(s) purchased in its transit operations and shall perform regularly recurring maintenance with specific performance measures tied to Town of Avon’s written maintenance plans, including manufacturer’s recommendations and warranty program(s). Town of Avon will measure wh ether this project is successful and improves the efficiency, effectiveness, and safety of transportation. 3. Performance will be reviewed throughout the duration of this Subaward Agreement. Town of Avon shall report to the CDOT Project Manager whenever one or more of the following occurs: a. Budget or schedule changes; b. Scheduled milestone or completion dates are not met; c. Identification of problem areas and how the problems will be resolved; and/or d. Expected impacts and the efforts to recover from delays. 4. Town of Avon must comply and submit all reimbursements and reports associated, including the assignment of “Colorado Department of Transportation” as the lienholder on the Capital Asset(s), as a condition of project closeout. C. Project Budget 1. The Total Project Budget is $2,000,000.00. CDOT will pay no more than 80% of the eligible, actual project costs, up to the maximum amount of $1,600,000.00. CDOT will retain any remaining balance of the federal share of FTA-5339 Funds. Town of Avon shall be solely responsible for all costs incurred in the project in excess of the amount paid by CDOT from Federal Funds for the federal share of eligible, actual costs. For CDOT accounting purposes, the Federal Funds of $1,600,000.00 (80%) and matching Local Funds of $400,000.00 (20%), will be encumbered for this Subaward Agreement. 2. No refund or reduction of the amount of Town of Avon’s share to be provided will be allowed unless there is at the same time a refund or reduction of the federal share of a proportionate amount. 3. Town of Avon may use eligible federal funds for the Local Funds share, but those funds cannot be from other Federal Department of Transportation (DOT) programs. Town of Avon’s share, together with the Federal Funds share, must be enough to ensure payment of the Total Project Budget. 4. Per the terms of this Subaward Agreement, CDOT shall have no obligation to provide state funds for use on this project. CDOT will administer Federal Funds for this project under the terms of this Subaward Agreement, provided that the federal share of FTA funds to be administered by CDOT are made available and remain available. Town of Avon shall initiate and prosecute to completion all actions necessary to enable Town of Avon to provide its share of the Total Project Budget at or prior to the time that such funds are needed to meet the Total Project Budget. D. Procurement Procurement of the Capital Asset(s) will comply with state procurement procedures, the DTR Quick Procurement Guide, as well as FTA’s requirements and 2 CFR 200.320. In addition to the state requirements outlined below, state and FTA procedures (where applicable) for purchase of the Capital Asset(s) must be followed and will be outlined prior to purchase. Milestone Description Original Estimated Completion Date Submit Reimbursement Request in COTRAMS 7/1/2021 Submit Progress Reports to GU Manager 1/1/2021 Submit Final Reimbursement Request in COTRAMS 3/31/2022 IMPORTANT NOTE: All milestones in this Statement of Work (except for the final reimbursement request) must be completed no later than the expiration date of this Subaward Agreement: December 31, 2022. DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 22 of 45 Version 10/23/19 1. The first step in the procurement process will be to obtain an Independent Cost Estimate (ICE). 2. The second step will be to obtain a Procurement Concurrence Request (PCR) approval from the CDOT Project Manager through COTRAMS. 3. Prior to entering into a purchasing agreement with the selected vendor, Town of A von shall request a Purchase Authorization (PA), and submit a vendor quote for the Capital Asset(s) in COTRAMS. The PA must identify a manufacturer found on the FTA’s certified transit vehicle manufacturer (TVM) list. Only those TVM’s listed on FTA’s TVM list, or that have submitted a goal methodology to FTA that has been approved or has not been disapproved, at the time of solicitation are eligible to bid on FTA funded vehicle procurements. 4. Upon delivery, Town of Avon shall be responsible for having the Ca pital Asset(s) inspected and accepted within fifteen (15) calendar days of delivery. If defects prevent acceptance of the Capital Asset(s), Town of Avon will contact the vendor to resolve any defects and notify CDOT. 5. Town of Avon shall be responsible for reimbursing the selected vendor within forty-five (45) calendar days after acceptance of the Capital Asset(s). E. Reimbursement Eligibility Requests for reimbursement for eligible project costs will be paid to Town of Avon upon submission of a complete reimbursement packet in COTRAMS for those eligible costs incurred during the Subaward Agreement effective dates. Accepted reimbursement packets will include the following completed documents:  Independent Cost Estimate (ICE)  Procurement Concurrence Request (PCR)  Purchase Authorization (PA)  Signed Notice of Acceptance (NA)  Signed Security Agreement (SA)  Application for Title showing “Colorado Department of Transportation” as the lienholder  Invoice  Proof of Payment  Post Delivery Certifications Town of Avon must submit the final invoice within sixty (60) calendar days of acceptance of the Capital Asset(s), and submit a Grant Closeout and Liquidation (GCL) Form in COTRAMS within fifteen (15) calendar days of issuance of the final reimbursement payment. F. Federal Interest-Service Life The useful life of rolling stock begins on the date the vehicle is placed in revenue service and continues until it is removed from revenue service. The minimum useful life in years refers to total time in transit revenue service, no t time spent stockpiled or otherwise unavailable for regular transit use. The minimum useful life in miles refers to total miles in transit revenue service. Non-revenue miles and periods of extended removal from service do not count towards useful life. Changes in operating circumstances, including unforeseen difficulty maintaining vehicles, higher cost of fuel, and changes in local law limiting where vehicles can be operated are not exemptions from minimum useful life requirements. FTA maintains its share of the remaining federal interest upon disposition of federally assisted property before the end of its useful life or for a value greater than $5,000 after the useful life has been met, according to the provisions of FTA C 5010.E1 Chapter IV(4)(o)(1). Minimum useful life is determined by years of service or accumulation of miles, whichever comes first, in accordance with FTA C. 5010.E1 Chapter IV(4)(f)(2). DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 23 of 45 Version 10/23/19 Town of Avon shall not dispose or otherwise release the Capital Asset(s) to any other party while the re is federal interest in the Capital Asset(s) without approval from the CDOT Project Manager. Town of Avon is responsible for making the request to the CDOT Project Manager in a timely manner, providing appropriate documentation, if indicated, when a lien release is being requested in order to allow CDOT to process the release of a lien. CDOT and Town of Avon will work in conjunction with Department of Revenue (DOR) to assure the lien is released according to state rules. G. Training In an effort to enhance transit safety, Town of Avon and any subrecipients and subcontractors shall make a good faith effort to ensure that appropriate training of agency and contracted personnel is occurring and that personnel are up to date in appropriate certifications. In particular, Town of Avon shall ensure that driving personnel are provided professional training in defensive driving and training on the handling of mobility devices and transporting older adults and individuals with disabilities. H. Safety Data Town of Avon and any subrecipients shall maintain and submit, as requested, data related to bus safety. This may include, but not be limited to, the number of vehicle accidents within certain measurement parameters set forth by CDOT, the number and extent of passenger injuries or claims, and the number and extent of employee accidents, injuries, and incidents. I. Restrictions on Lobbying Town of Avon is certifying that it complies with 2 CFR 200.450 by entering into this Subaward Agreement. J. Special Conditions 1. Town of Avon will comply with all requirements imposed by CDOT on Town of Avon so that the federal award is used in accordance with federal statutes, regulations, and the terms and conditions of the federal award. 2. Town of Avon must permit CDOT and their auditors to have ac cess to Town of Avon’s records and financial statements as necessary, with reasonable advance notice. 3. Record retention shall adhere to the requirements outlined in 2 CFR 200.333 and FTA C 5010.1. 4. Except as provided in this Subaward Agreement, Town of Avon shall not be reimbursed for any purchase, issued purchase order, or leased capital equipment prior to the execution of this Subaward Agreement. 5. Town of Avon cannot request reimbursement for costs on this project from more than one Federal Awarding Agency or other federal awards (i.e., no duplicate billing). 6. Town of Avon must obtain CDOT approval, in writing, if FTA funds are intended to be used for payment of a lease or for third-party contracts. 7. Town of Avon shall document any loss, damage, or theft of FTA- or state-funded property, equipment, or rolling stock in COTRAMS. 8. If receiving FTA 5311 funding, Town of Avon shall advertise its fixed route and/or rural based service as available to the general public and service will not be explicitly limited by trip purpose or client type. 9. If receiving FTA 5311 funding, Town of Avon shall maintain and report annually all information required by the National Transit Database (NTD) and any other financial, fleet, or service data. 10. If receiving FTA 5311 or 5339 funding, Town of Avon will ensure subcontractors and subrecipients comply DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 24 of 45 Version 10/23/19 with FTA Drug and Alcohol Regulations. 11. Town of Avon shall ensure that it does not exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States on the ground of race, color, national origin, sex, age or disability in accordance with Title VI of the Civil Rights Act of 1964. 12. Town of Avon shall seek to ensure non-discrimination in its programs and activities by developing and maintaining a Title VI Program in accordance with the “Requirements for FTA Subrecipients” in CDOT’s Title VI Program Plan and Federal Transit Administration Circular 4702.1B, “Title VI Requirements and Guidelines for FTA Recipients.” The Party shall also facilitate FTA’s compliance with Executive Order 12898 and DOT Order 5610.2(a) by incorporating the principles of environmental justice in planning, project development, and public outreach in accordance with FTA Circular 4703.1 “Environmental Justice Policy Guidance for Fe deral Transit Administration Recipients.” 13. Town of Avon will provide transportation services to persons with disabilities in accordance with Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq. 14. Town of Avon shall develop and maintain an ADA Program in accordance with 28 CFR Part 35, Nondiscrimination on the Basis of Disability in State and Local Government Services, FTA Circular 4710.1, and any additional requirements established by CDOT for FTA subrecipients. 15. Town of Avon shall ensure that it will comply with the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, FTA guidance, and any other federal, state, and/or local laws, rules and/or regulations. In any contract utilizing federal funds, land, or other federa l aid, Town of Avon shall require its subrecipients and/or contractors to provide a statement of written assurance that they will comply with Section 504 and not discriminate on the basis of disability. 16. Town of Avon shall agree to produce and maintain documentation that supports compliance with the Americans with Disabilities Act to CDOT upon request. 17. Town of Avon shall provide CDOT with an equity analysis if the project involves choosing a site or location of a facility in accordance with FTA Circular 4702.1B. 18. Town of Avon shall update its Agency Profile in COTRAMS with any alterations to existing construction or any new construction in accordance with FTA Circular 4710.1. 19. Town of Avon will adopt a Transit Asset Management Plan that complies with regulations implementing 49 U.S.C. § 5326(d). 20. Town of Avon shall include nondiscrimination language and the Disadvantaged Business Enterprise (DBE) assurance in all contracts and solicitations in accordance with DBE regulations, 49 CFR Part 26, and CDOT’s DBE program. 21. Meal delivery must not conflict with providing public transportation service or reduce service to public transportation passengers. DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 25 of 45 Version 10/23/19 EXHIBIT B, SAMPLE OPTION LETTER State Agency Department of Transportation Option Letter Number Insert the Option Number (e.g. "1" for the first option) Subrecipient Insert Subrecipient's Full Legal Name, including "Inc.", "LLC", etc... Original Agreement Number Insert CMS number or Other Contract Number of the Original Contract Subaward Agreement Amount Federal Funds Option Agreement Number Insert CMS number or Other Contract Number of this Option Maximum Amount (%) $0.00 Local Funds Agreement Performance Beginning Date The later of the Effective Date or Month, Day, Year Local Match Amount (%) $0.00 Agreement Total $0.00 Current Agreement Expiration Date Month, Day, Year 1. OPTIONS: A. Option to extend for an Extension Term or End of Term Extension. 2. REQUIRED PROVISIONS: A. For use with Option 1(A): In accordance with Section(s) 2.B/2.C of the Original Agreement referenced above, the State hereby exercises its option for an additional term/end of term extension, beginning Insert start date and ending on the current agreement expiration date shown above, at the rates stated in the Original Agreement, as amended. B. For use with Options 1(A): The Subaward Agreement Amount table on the Agreement’s Cover Page is hereby deleted and replaced with the Current Subaward Agreement Amount table shown above. 3. OPTION EFFECTIVE DATE: A. The effective date of this Option Letter is upon approval of the State Controller or ____, whichever is later. STATE OF COLORADO Jared S. Polis, Governor Department of Transportation Shoshana M. Lew, Executive Director By: ________________________________________ Herman Stockinger, Deputy Director and Director of Policy Date: ________________________________ In accordance with §24-30-202, C.R.S., this Option Letter is not valid until signed and dated below by the State Controller or an authorized delegate. STATE CONTROLLER Robert Jaros, CPA, MBA, JD By:_______________________________________ Department of Transportation Option Letter Effective Date: __________________ DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 26 of 45 Version 10/23/19 EXHIBIT C, FEDERAL PROVISIONS 1. APPLICABILITY OF PRO VISIONS 1.1. The Contract to which these Federal Provisions are attached has been funded, in whole or in part, with an Award of Federal funds. In the event of a conflict between the provisions of these Federal Provisions, the Special Provisions, the body of the Contract, or any attachments or exhibits incorporated into and made a part of the Contract, the provisions of these Federal Provisions shall control. 2. DEFINITIONS 2.1. For the purposes of these Federal Provisions, the following terms shall have the meanings ascribed to them below. 2.1.1. “Award” means an award of Federal financial assistance, and the Contract setting forth the terms and conditions of that financial assistance, that a non-Federal Entity receives or administers. 2.1.1.1. Awards may be in the form of: 2.1.1.1.1. Grants; 2.1.1.1.2. Contracts; 2.1.1.1.3. Cooperative agreements, which do not include cooperative research and development agreements (CRDA) pursuant to the Federal Technology Transfer Act of 1986, as amended (15 U.S.C. 3710); 2.1.1.1.4. Loans; 2.1.1.1.5. Loan Guarantees; 2.1.1.1.6. Subsidies; 2.1.1.1.7. Insurance; 2.1.1.1.8. Food commodities; 2.1.1.1.9. Direct appropriations; 2.1.1.1.10. Assessed and voluntary contributions; and 2.1.2.1.11. Other financial assistance transactions that authorize the expenditure of Federal funds by non-Federal Entities. 2.1.1.1.12. Any other items specified by OMB in policy memoranda available at the OMB website or other source posted by the OMB. 2.1.1.2. Award does not include: 2.1.1.2.1. Technical assistance, which provides services in lieu of money; 2.1.1.2.2. A transfer of title to Federally-owned property provided in lieu of money; even if the award is called a grant; 2.1.1.2.3. Any award classified for security purposes; or 2.1.1.2.4. Any award funded in whole or in part with Recovery funds, as defined in section 1512 of the American Recovery and Reinvestment Act (ARRA) of 2009 (Public Law 111 -5). 2.1.2. “Contract” means the Agreement or Subaward Agreement to which these Federal Provisions are attached and includes all Award types in §2.1.1.1 of this Exhibit. 2.1.3. “Contractor” means the party or parties to a Contract or Subaward Agreement funded, in whole or in part, with Federal financial assistance, other than the Prime Recipient, and includes Subrecipients and borrowers. For purposes of Transparency Act reporting, Contractor does not include Vendors. 2.1.4. “Data Universal Numbering System (DUNS) Number” means the nine-digit number established and assigned by Dun and Bradstreet, Inc. to uniquely identify a business entity. Dun and Brad street’s website may be found at: http://fedgov.dnb.com/webform. 2.1.5. “Entity” means all of the following as defined at 2 CFR part 25, subpart C; DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 27 of 45 Version 10/23/19 2.1.5.1. A governmental organization, which is a State, local government, or Indian Tribe; 2.1.5.2. A foreign public entity; 2.1.5.3. A domestic or foreign non-profit organization; 2.1.5.4. A domestic or foreign for-profit organization; and 2.1.5.5. A Federal agency, but only a Subrecipient under an Award or Sub award to a non-Federal entity. 2.1.6. “Executive” means an officer, managing partner or any other employee in a management position. 2.1.7. “Federal Award Identification Number (FAIN)” means an Award number assigned by a Federal agency to a Prime Recipient. 2.1.8. “Federal Awarding Agency” means a Federal agency providing a Federal Award to a Recipient as described in 2 CFR §200.37 2.1.9. “FFATA” means the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109-282), as amended by §6202 of Public Law 110 -252. FFATA, as amended, also is referred to as the “Transparency Act.” 2.1.10. “Federal Provisions” means these Federal Provisions subject to the Transparency Act and Uniform Guidance, as may be revised pursuant to ongoing guidance from the relevant Federal or State of Colorado agency or institutions of higher education. 2.1.11. “OMB” means the Executive Office of the President, Office of Management and Budget. 2.1.12. “Prime Recipient” means a Colorado State agency or institution of higher education that receives an Award. 2.1.13. “Subaward” means an award by a Recipient to a Subrecipient funded in whole or in part by a Federal Award. The terms and conditions of the Federal Award flow down to the Award unless the terms and conditions of the Federal Award specifically indicate other wise in accordance with 2 CFR §200.38. The term does not include payments to a contractor or payments to an individual that is a beneficiary of a Federal program. 2.1.14. “Subrecipient” means a non-Federal Entity (or a Federal agency under an Award or Subaward to a non-Federal Entity) receiving Federal funds through a Prime Recipient to support the performance of the Federal project or program for which the Federal funds were awarded. A Subrecipient is subject to the terms and conditions of the Federal Award to the Prime Recipient, including program compliance requirements. The term “Subrecipient” includes and may be referred to as Subrecipient. The term does not include an individual who is a beneficiary of a federal program. 2.1.15. “Subrecipient Parent DUNS Number” means the sub recipient parent organization’s 9 -digit Data Universal Numbering System (DUNS) number that appears in the sub recipient’s System for Award Management (SAM) profile, if applicable. 2.1.16. “System for Award Management (SAM)” means the Federal repository into which an Entity must enter the information required under the Transparency Act, which may be found at http://www.sam.gov. 2.1.17. “Total Compensation” means the cash and noncash dollar value earned by an Executive during the Prime Recipient’s or Subrecipient’s preceding fiscal year and includes the following: 2.1.17.1. Salary and bonus; 2.1.17.2. Awards of stock, stock options, and stock appreciation rights, using the dollar amount recognized for financial statement reporting p urposes with respect to the fiscal year in accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2005) (FAS 123R), Shared Based Payments; 2.1.17.3. Earnings for services under non-equity incentive plans, not including group life, health, hospitalization or medical reimbursement plans that do not discriminate in favor of Executives and are available generally to all salaried employees; 2.1.17.4. Change in present value of defined benefit and actuarial pension plans; 2.1.17.5. Above-market earnings on deferred compensation which is not tax-qualified; DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 28 of 45 Version 10/23/19 2.1.17.6. Other compensation, if the aggregate value of all such other compensation (e.g. severance, termination payments, value of life insurance paid on behalf of the employee, perqui sites or property) for the Executive exceeds $10,000. 2.1.18. “Transparency Act” means the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109-282), as amended by §6202 of Public Law 110-252. The Transparency Act also is referred to as FFATA. 2.1.19. “Uniform Guidance” means the Office of Management and Budget Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, which supersedes requirements from OMB Circulars A-21, A-87, A-110, and A-122, OMB Circulars A-89, A-102, and A-133, and the guidance in Circular A-50 on Single Audit Act follow-up. The terms and conditions of the Uniform Guidance flow down to Awards to Subrecipients unless the Uniform Guidance or the terms and conditions of the Federal Award specifically indicate otherwise. 2.1.20. “Vendor” means a dealer, distributor, merchant or other seller providing property or services required for a project or program funded by an Award. A Vendor is not a Prime Recipient or a Subrecipient and is not subject to the terms and conditions of the Federal award. Program compliance requirements do not pass through to a Vendor. 3. COMPLIANCE 3.1. Contractor shall comply with all applicable provisions of the Transparency Act, all applicable provisions of the Uniform Guidance, and the regulations issued pursuant thereto, including but not limited to these Federal Provisions. Any revisions to such provisions or regulations shall automatically become a part of these Federal Provisions, without the necessity of either party executing any further instrument. The State of Colorado may provide written notification to Contractor of such revisions, but such notice shall not be a condition precedent to the effectiveness of such revisions. 4. SYSTEM FOR AWARD MANAGEMENT (SAM) AND DATA UNIVERSAL NUMBERING SYSTEM (DUNS) REQUIREMENTS 4.1. SAM. Contractor shall maintain the currency of its information in SAM until the Contractor submits the final financial report required under the Award or receives final payment, whichever is later. Contractor shall review and update SAM information at least annually after the initial registration, and more frequently if required by changes in its information. 4.2. DUNS. Contractor shall provide its DUNS number to its Prime Recipient, and shall update Contractor’s information in Dun & Bradstreet, Inc. at least annually after the initial registration, and more frequently if required by changes in Contractor’s information. 5. TOTAL COMPENSATION 5.1. Contractor shall include Total Compensation in SAM for each of its five most highly compensated Executives for the preceding fiscal year if: 5.1.1. The total Federal funding authorized to date under the Award is $25,000 or more; and 5.1.2. In the preceding fiscal year, Contractor received: 5.1.2.1. 80% or more of its annual gross revenues from Federal procurement contracts and subcontracts and/or Federal financial assistance Awards or Sub awards subject to the Transparency Act; and 5.1.2.2. $25,000,000 or more in annual gross revenues from Federal procurement contracts and subcontracts and/or Federal financial assistance Awards or Sub awards subject to the Transparency Act; and 5.1.3. The public does not have access to information about the compensation of such Executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d) or § 6104 of the Internal Revenue Code of 1986. 6. REPORTING 6.1. Contractor shall report data elements to SAM and to the Prime Recipient as re quired in this Exhibit if Contractor is a Subrecipient for the Award pursuant to the Transparency Act. No direct payment shall be made to Contractor for providing any reports required under these Federal Provisions and the cost of producing such reports shall be included in the Contract price. The reporting requirements in this Exhibit DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 29 of 45 Version 10/23/19 are based on guidance from the US Office of Management and Budget (OMB), and as such are subject to change at any time by OMB. Any such changes shall be automatically incorporated into this Contract and shall become part of Contractor’s obligations under this Contract. 7. EFFECTIVE DATE AND DOLLAR THRESHOLD FOR REPORTING 7.1. Reporting requirements in §8 below apply to new Awards as of October 1, 2010, if the initial award is $25,000 or more. If the initial Award is below $25,000 but subsequent Award modifications result in a total Award of $25,000 or more, the Award is subject to the reporting requirements as of the date the Award exceeds $25,000. If the initial Award is $25,000 or more, but funding is subsequently de- obligated such that the total award amount falls below $25,000, the Award shall continue to be subject to the reporting requirements. 7.2. The procurement standards in §9 below are applicable to new Awards made by Prime Recipient as of December 26, 2015. The standards set forth in §11 below are applicable to audits of fiscal years beginning on or after December 26, 2014 . 8. SUBRECIPIENT REPORTING REQUIREMENTS 8.1. If Contractor is a Subrecipient, Contractor shall report as set forth below. 8.1.1. To SAM. A Subrecipient shall register in SAM and report the following data elements in SAM for each Federal Award Identification Number no later than the end of the month following the month in which the Sub award was made: 8.1.1.1. Subrecipient DUNS Number; 8.1.1.2. Subrecipient DUNS Number + 4 if more than one electronic funds transfer (EFT) account; 8.1.1.3. Subrecipient Parent DUNS Number; 8.1.1.4. Subrecipient’s address, including: Street Address, City, State, Country, Zip + 4, and Congressional District; 8.1.1.5. Subrecipient’s top 5 most highly compensated Executives if the criteria in §4 above are met; and 8.1.1.6. Subrecipient’s Total Compensation of top 5 most highly compensated Executives if criteria in §4 above met. 8.1.2. To Prime Recipient. A Subrecipient shall report to its Prime Recipient, upon the effective date of the Agreement, the following data elements: 8.1.2.1. Subrecipient’s DUNS Number as registered in SAM. 8.1.2.2. Primary Place of Perfor mance Information, including: Street Address, City, State, Country, Zip code + 4, and Congressional District. 9. PROCUREMENT STANDARDS 9.1. Procurement Procedures. A Subrecipient shall use its own documented procurement procedures which reflect applicable State, local, and Tribal laws and regulations, provided that the procurements conform to applicable Federal law and the standards identified in the Uniform Guidance, including without limitation, §§200.318 through 200.326 thereof. 9.2. Procurement of Recovered Materials. If a Subrecipient is a State Agency or an agency of a political subdivision of the State, its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines. DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 30 of 45 Version 10/23/19 10. ACCESS TO RECORDS 10.1. A Subrecipient shall permit Recipient and auditors to have access to Sub recipient’s record s and financial statements as necessary for Recipient to meet the requirements of §200.331 (Requirements for pass - through entities), §§200.300 (Statutory and national policy requirements) through 200.309 (Period of performance), and Subpart F-Audit Requirements of the Uniform Guidance. 2 CFR §200.331(a)(5). 11. SINGLE AUDIT REQUIREMENTS 11.1. If a Subrecipient expends $750,000 or more in Federal Awards during the Subrecipient’s fiscal year, the Subrecipient shall procure or arrange for a single or program-specific audit conducted for that year in accordance with the provisions of Subpart F-Audit Requirements of the Uniform Guidance, issued pursuant to the Single Audit Act Amendments of 1996, (31 U.S.C. 7501-7507). 2 CFR §200.501. 11.1.1. Election. A Subrecipient shall have a single audit conducted in accordance with Uniform Guidance §200.514 (Scope of audit), except when it elects to have a program -specific audit conducted in accordance with §200.507 (Program-specific audits). The Subrecipient may elect to have a program-specific audit if Subrecipient expends Federal Awards under only one Federal program (excluding research and development) and the Federal program's statutes, regulations, or the terms and conditions of the Federal award do not require a financial statement audit of Prime Recipient. A program-specific audit may not be elected for research and development unless all of the Federal Awards expended were received from Recipient and Recipient approves in advance a program - specific audit. 11.1.2. Exemption. If a Subrecipient expends less than $750,000 in Federal Awards during its fiscal year, the Subrecipient shall be exempt from Federal audit requirements for that year, except as noted in 2 CFR §200.503 (Relation to other audit requirements), but records shall be available for review or audit by appropriate officials of the Federal agency, the State, and the Government Accountability Office. 11.1.3. Subrecipient Compliance Responsibility. A Subrecipient shall procure or otherwise arrange for the audit required by Part F of the Uniform Guidance and ensure it is properly performed and submitted when due in accordance with the Uniform Guidance. Subrecipient shall prepare appropriate financial statements, including the schedule of 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. 12. CONTRACT PROVISIONS FOR SUBRECIPIENT CONTRACTS 12.1. If Contractor is a Subrecipient, then it shall comply with and shall include all of the following applicable provisions in all subcontracts entered into by it pursuant to this Agreement. 12.1.1. Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of “federally assisted construction contract” in 41 CFR Part 60 - 1.3 shall include the equal opportunity clause provided under 41 CFR 60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 CFR Part, 1964 - 1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 CFR part 60, “Office of Federal Contract Compliance Programs, Equal Employment Op portunity, Department of Labor. 12.1.1.1. During the performance of this contract, the contractor agrees as follows: 12.1.1.1.1. Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 31 of 45 Version 10/23/19 for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause. 12.1.1.1.2. Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. 12.1.1.1.3. Contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 12.1.1.1.4. Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant o rders of the Secretary of Labor. 12.1.1.1.5. Contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will per mit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. 12.1.1.1.6. In the event of Contractor's non-compliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be canceled, terminated or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. 12.1.1.1.7. Contractor will include the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such directio n, the contractor may request the United States to enter into such litigation to protect the interests of the United States.” 12.1.2. Davis-Bacon Act. Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non- Federal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 3141- 3144, and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-Federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non -Federal entity must report all suspected or reported violations to the Federal awarding agency. The contracts must also include a provision for compliance with the Copeland “Anti -Kickback” Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in 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. DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 32 of 45 Version 10/23/19 12.1.3. Rights to Inventions Made Under a Contract or Contract. If the Federal Award meets the definition of “funding Contract” under 37 CFR §401.2 (a) and Subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding Contract,” Subrecipient must comply with the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Contracts,” and any implementing regulations issued by the awarding agency. 12.1.4. Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251-1387), as amended. Contracts and subawards of amounts in excess of $150,000 must contain a provision that requires the non-Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401 -7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). 12.1.5. Debarment and Suspension (Executive Orders 12549 and 12689). A contract award (see 2 CFR 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 19 89 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. 12.1.6. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier-to-tier up to the non-Federal award. 13. CERTIFICATIONS 13.1. Unless prohibited by Federal statutes or regulations, Recipient may require Subrecipient to submit certifications and representations required by Federal statutes or regulations on an annual basis. 2 CFR §200.208. Submission may be required more frequently if Subrecipient fails to meet a requirement of the Federal award. Subrecipient shall certify in writing to the State at the end of the Award that the project or activity was completed, or the level of effort was expended. 2 CFR §200.201(3). If the required level of activity or effort was not carried out, the amount of the Award must be adjusted . 14. EXEMPTIONS 14.1. These Federal Provisions do not apply to an individual who receives an Award as a natural person, unrelated to any business or non-profit organization he or she may own or operate in his or her name. 14.2. A Contractor with gross income from all sources of less than $300,000 in the previous tax year is exempt from the requirements to report Subawards and the Total Compensation of its most highly compensated Executives. 14.3. There are no Transparency Act reporting requirements for Vendors. 15. EVENT OF DEFAULT 15.1. Failure to comply with these Federal Provisions shall constitute an event of default under the Contract and the State of Colorado may terminate the Contract upon 30 days prior written notice if the default remains uncured five calendar days following the termination of the 30 -day notice period. This remedy will be in addition to any other remedy available to the State of Colorado under the Contract, at law or in equity. DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 33 of 45 Version 10/23/19 EXHIBIT D, REQUIRED FEDERAL CONTRACT/AGREEMENT CLAUSES All FTA-Assisted Third-Party Contracts and Subawards from the Current FTA Mast er Agreement [FTA MA(23)] Section 3.l. – No Federal government obligations to third-parties by use of a disclaimer No Federal/State Government Commitment or Liability to Third Parties. Except as the Federal Government or CDOT expressly consents in writing, the Subrecipient agrees that: (1) The Federal Government or CDOT do not and shall not have any commitment or liability related to the Agreement, to any Third-Party Participant at any tier, or to any other person or entity that is not a party (FTA, CDOT or the Subrecipient) to the Agreement, and (2) Notwithstanding that the Federal Government or CDOT may have concurred in or approved any Solicitation or Third-Party Agreement at any tier that may affect the Agreement, the Federal Government and CDOT does not and shall not have any commitment or liability to any Third Party Participant or other entity or person that is not a party (FTA, CDOT, or the Subrecipient) to the Agreement. Section 4.f. – Program fraud and false or fraudulent statements and related acts False or Fraudulent Statements or Claims. (1) Civil Fraud. The Subrecipient acknowledges and agrees that: (a) Federal laws, regulations, and requirements apply to itself and its Agreement, including the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq., and U.S. DOT regulations, “Program Fraud Civil Remedies,” 49 C.F.R. part 31. (b) By executing the Agreement, the Subrecipient certifies and affirms to the Federal Government the truthfulness and accuracy of any claim, statement, submission, certification, assurance, affirmation, or representation that the Subrecipient provides to the Federal Government and CDOT. (c) The Federal Government and CDOT may impose the penalties of the Program Fraud Civil Remedies Act of 1986, as amended, and other applicable penalties if the Subrecipient presents, submits, or makes available any false, fictitious, or fraudulent information. (2) Criminal Fraud. The Subrecipient acknowledges that 49 U.S.C. § 5323(l)(1) authorizes the Federal Government to impose the penalties under 18 U.S.C. § 1001 if the Subrecipient provides a false, fictitious, or fraudulent claim, statement, submission, certification, assurance , or representation in connection with a federal public transportation program under 49 U.S.C. chapter 53 or any other applicable federal law. Section 9. Record Retention and Access to Sites of Performance. a. Types of Records. The Subrecipient agrees that it will retain, and will require its Third-Party Participants to retain, complete and readily accessible records related in whole or in part to the Underlying Agreement, including, but not limited to, data, documents, reports, statistics, subagreements, l eases, third party contracts, arrangements, other third-party agreements of any type, and supporting materials related to those records. b. Retention Period. The Subrecipient agrees that it will comply with the record retention requirements in the applicable U.S. DOT Common Rule. Records pertaining to its Award, the accompanying Agreement, and any Amendments thereto must be retained from the day the Agreement was signed by the authorized FTA or State official through the course of the Award, the accompanying Agreement, and any Amendments thereto until three years after the Subrecipient has submitted its last or final expenditure report, and other pending matters are closed. c. Access to Recipient and Third-Party Participant Records. The Subrecipient agrees and assures that each Subrecipient, if any, will agree to: (1) Provide, and require its Third Party Participants at each tier to provide, sufficient access to inspect and audit records and information related to its Award, the accompanying Agreement, and any Amendments thereto to the U.S. Secretary of Transportation or the Secretary’s duly authorized representatives, to the Comptroller General of the United States, and the Comptroller General’s duly authorized representatives, and to the Subrecipient and each of its Subrecipient, (2) Permit those individuals listed above to inspect all work and materials related to its Award, and to audit any information related to its Award under the control of the Subrecipient or Third-Party Participant within books, records, accounts, or other locations, and (3) Otherwise comply with 49 U.S.C. § 5325(g), and federal access to records requirements as set forth in the applicable U.S. DOT Common Rules. d. Access to the Sites of Performance. The Subrecipient agrees to permit, and to require its Third-Party Participants to permit, FTA and CDOT to have access to the sites of performance of its Award, the accompanying Agreement, and any Amendments thereto, and to make site visits as needed in compliance with State and the U.S. DOT Common Rules. DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 34 of 45 Version 10/23/19 e. Closeout. Closeout of the Award does not alter the record retention or access requirements of this section of th e Master Agreement. 3.G – Federal Changes Application of Federal, State, and Local Laws, Regulations, Requirements, and Guidance . The Subrecipient agrees to comply with all applicable federal requirements and federal guidance. All standards or limits are minimum requirements when those standards or limits are included i n the Recipient’s Agreement or this Master Agreement. At the time the FTA Authorized Official (CDOT) awards federal assistance to the Subrecipient in support of the Agreement, the federal requirements and guidance that apply then may be modified from time-to-time and will apply to the Subrecipient or the accompanying Agreement. 12 – Civil Rights a. Nondiscrimination – Title VI of the Civil Rights Act. The Subrecipient agrees to, and assures that each Third- Party Participant, will: (1) Prohibit discrimination on the basis of race, color, or national origin, (2) Comply with: (a) Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d et seq., (b) U.S. DOT regulations, “Nondiscrimination in Federally-Assisted Programs of the Department of Transportation – Effectuation of Title VI of the Civil Rights Act of 1964,” 49 C.F.R. part 21, and (c) Federal transit law, specifically 49 U.S.C. § 5332 , and (3) Follow: (a) The most recent edition of FTA Circular 4702.1, “Title VI Requirements and Guidelines for Federal Transit Administration Recipients,” to the extent consistent with applicable federal laws, regulations, requirements, and guidance, (b) U.S. DOJ, “Guidelines for the enforcement of Title VI, Civil Rights Act of 1964,” 28 C.F.R. § 50.3, and (c) All other applicable federal guidance that may be issued. b. Equal Employment Opportunity. (1) Federal Requirements and Guidance. The Subrecipient agrees to, and assures that each Third-Party Participant will, prohibit, discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin, and: (a) Comply with Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., (b) Facilitate compliance with Executive Order No. 11246, “Equal Employment Opportunity” September 24, 1965, 42 U.S.C. § 2000e note, as amended by any later Executive Order that amends or supersedes it in part and is applicable to federal assistance programs, (c) Comply with federal transit law, specifically 49 U.S.C. § 5332, as provided in section 12 of this Master Agreement, (d) FTA Circular 4704.1 “Equal Employment Opportunity (EEO) Requirements and Guidelines for Federal Transit Administration Recipients,” and (e) Follow other federal guidance pertaining to EEO laws, regulations, and requirements, and prohibitions against discrimination on the basis of disability, (2). Specifics. The Subrecipient agrees to, and assures that each Third-Party Participant will: (a) Prohibited Discrimination. Ensure that applicants for employment are employed and employees are treated during employment without discrimination on the basis of their race, color, religion, national origin, disability, age, sexual orientation, gender identity, or status as a parent, as provided in Executive Order No. 11246 and by any later Executive Order that amends or supersedes it, and as specified by U.S. Department of Labor regulations, (b) Affirmative Action. Take affirmative action that includes, but is not limited to: 1 Recruitment advertising, recruitme nt, and employment, 2 Rates of pay and other forms of compensation, 3 Selection for training, including apprenticeship, and upgrading, and 4 Transfers, demotions, layoffs, and terminations, but (c) Indian Tribe. Recognize that Title VII of the Civil Rights Act of 1964, as amended, exempts Indian Tribes under the definition of “Employer,” and (3) Equal Employment Opportunity Requirements for Construction Activities . Comply, when undertaking “construction” as recognized by the U.S. Department of Labor (U.S. DOL), with: (a) U.S. DOL regulations, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor,” 41 C.F.R. chapter 60, and DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 35 of 45 Version 10/23/19 (b) Executive Order No. 11246, “Equal Employment Opportunity in Federal Employment,” September 24, 1965, 42 U.S.C. § 2000e note, as amended by any later Executive Order that amends or supersedes it, referenced in 42 U.S.C. § 2000e note. c. Nondiscrimination on the Basis of Disability. The Subrecipient agrees to comply with the following federal prohibitions against discrimination on the basis of disability: (1) Federal laws, including: (a) Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, which prohibits discrimination on the basis of disability in the administration of federally assisted Programs, Projects, or activities, (b) The Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. § 12101 et seq., which requires that accessible facilities and services be made available to individuals with disabilities: 1 For FTA Recipients generally, Titles I, II, and III of the ADA apply, but 2 For Indian Tribes, Titles II and III of the ADA apply, but Title I of the ADA does not ap ply because it exempts Indian Tribes from the definition of “employer,” (c) The Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq., which requires that buildings and public accommodations be accessible to individuals with disabilities, (d) Federal transit law, specifically 49 U.S.C. § 5332, which now includes disability as a prohibited basis for discrimination, and (e) Other applicable federal laws, regulations, and requirements pertaining to access for seniors or individuals with disabilities. (2) Federal regulations and guidance, including: (a) U.S. DOT regulations, “Transportation Services for Individuals with Disabilities (ADA),” 49 C.F.R. part 37, (b) U.S. DOT regulations, “Nondiscrimination on the Basis of Disability in Programs a nd Activities Receiving or Benefiting from Federal Financial Assistance,” 49 C.F.R. part 27, (c) Joint U.S. Architectural and Transportation Barriers Compliance Board (U.S. ATBCB) and U.S. DOT regulations, “Americans With Disabilities (ADA) Accessibility Specifications for Transportation Vehicles,” 36 C.F.R. part 1192 and 49 C.F.R. part 38, (d) U.S. DOT regulations, “Transportation for Individuals with Disabilities: Passenger Vessels,” 49 C.F.R. part 39, (e) U.S. DOJ regulations, “Nondiscrimination on the Basis of Disability in State and Local Government Services,” 28 C.F.R. part 35, (f) U.S. DOJ regulations, “Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities,” 28 C.F.R. part 36, (g) U.S. EEOC, “Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act,” 29 C.F.R. part 1630, (h) U.S. Federal Communications Commission regulations, “Telecommunications Relay Services and Related Customer Premises Equipment for Persons with Disabilities,” 47 C.F.R. part 64, Subpart F, (i) U.S. ATBCB regulations, “Electronic and Information Technology Accessibility Standards,” 36 C.F.R. part 1194, (j) FTA regulations, “Transportation for Elderly and Handicapped Persons,” 49 C.F.R. part 609, (k) FTA Circular 4710.1, “Americans with Disabilities Act: Guidance,” and (l) Other applicable federal civil rights and nondiscrimination regulations and guidance. Incorporation of FTA Terms – 16.a. a. Federal Laws, Regulations, Requirements, and Guidance. The Subrecipient agrees: (1) To comply with the requirements of 49 U.S.C. chapter 53 and other applicable federal laws, regulations, and requirements in effect now or later that affect its third party procurements, (2) To comply with the applicable U.S. DOT Common Rules, and (3) To follow the most recent edition and any revisions of FTA Circular 4220.1, “Third Party Contracting Guidance,” to the extent consistent with applicable federal laws, regulations, requirements, and guidance. Energy Conservation – 26.j a. Energy Conservation. The Subrecipient agrees to, and assures that its Subrecipients, if any, will comply with the mandatory energy standards and policies of its state energy conservation plans under the Energy Policy and Conservation Act, as amended, 42 U.S.C. § 6321 et seq., and perform an energy assessment for any building constructed, reconstructed, or modified with federal assistance required under FTA regulations, “Requirements for Energy Assessments,” 49 C.F.R. part 622, subpart C. DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 36 of 45 Version 10/23/19 Applicable to Awards exceeding $10,000 Section 11. Right of the Federal Government to Terminate. a. Justification. After providing written notice to the Subrecipient, the Subrecipient agrees that the Federal Government may suspend, suspend then terminate, or terminate all or any part of the federal assistance for the Award if: (1) The Subrecipient has failed to make reasonable progress implementing the Award, (2) The Federal Government determines that continuing to provide federal assistance to support the Award does not adequately serve the purposes of the law authorizing the Award, or (3) The Subrecipient has violated the terms of the Agreement, especially if that violation would endanger substantial performance of the Agreement. b. Financial Implications. In general, termination of federal assistance for the Award will not invalidate obligations properly incurred before the termination date to the extent that the obligations cannot be canceled. The Federal Government may recover the federal assistance it has provided for the Award, including the federal assistance for obligations properly incurred before the termination date, if it determines that the Subrecipient has misused its federal assistance by failing to make adequate progress, failing to make appr opriate use of the Project property, or failing to comply with the Agreement, and require the Subrecipient to refund the entire amount or a lesser amount, as the Federal Government may determine including obligations properly incurred before the terminatio n date. c. Expiration of the Period of Performance. Except for a Full Funding Grant Agreement, expiration of any period of performance established for the Award does not, by itself, constitute an expiration or termination of the Award; FTA may extend the period of performance to assure that each Formula Project or related activities and each Project or related activities funded with “no year” funds can receive FTA assistance to the extent FTA deems appropriate. Applicable to Awards exceeding $25,000 From Section 4. Ethics. a. Debarment and Suspension. The Subrecipient agrees to the following: (1) It will comply with the following requirements of 2 C.F.R. part 180, subpart C, as adopted and supplemented by U.S. DOT regulations at 2 C.F.R. part 1200. (2) It will not enter into any arrangement to participate in the development or implementation of the Underlying Agreement with any Third-Party Participant that is debarred or suspended except as authorized by: (a) U.S. DOT regulations, “Nonprocurement Suspension and Debarment,” 2 C.F.R. part 1200, (b) U.S. OMB regulatory guidance, “Guidelines to Agencies on Government-wide Debarment and Suspension (Nonprocurement),” 2 C.F.R. part 180, including any amendments thereto, (c) Executive Orders No. 12549, “Uniform Suspension, Debarment, or Exclusion of Participants from Procurement or Nonprocurement Activity,” October 13, 1994,” 31 U.S.C. § 6101 note, as amended by Executive Order No. 12689, “Debarment and Suspension,” August 16, 1989 , 31 U.S.C. § 6101 note, and (d) Other applicable federal laws, regulations, or guidance regarding participation with debarred or suspended Subrecipients or Third-Party Participants. (3) It will review the U.S. GSA “System for Award Management – Lists of Parties Excluded from Federal Procurement and Nonprocurement Programs,” https://www.sam.gov, if required by U.S. DOT regulations, 2 C.F.R. part 1200. (4) It will include, and require each Third-Party Participant to include, a similar provision in each lower tier covered transaction, ensuring that each lower tier Third Party Participant: (a) Complies with federal debarment and suspension requirements, and (b) Reviews the SAM at https://www.sam.gov, if necessary to comply with U.S. DOT regulations, 2 C.F.R. part 1200. (5) If the Subrecipient suspends, debars, or takes any similar action against a Third-Party Participant or individual, the Subrecipient will provide immediate written notice to the: (a) FTA Regional Counsel for the Region in which the Subrecipient is located or implements the Agreement, (b) FTA Headquarters Manager that administers the Grant or Cooperative Agreement, or (c) FTA Chief Counsel. DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 37 of 45 Version 10/23/19 Applicable to Awards exceeding the simplified acquisition threshold ($100,000-see Note) Note: Applicable when tangible property or construction will be acquired Section 15. Preference for United States Products and Services. Except as the Federal Government determines otherwise in writing, the Subrecipient agrees to comply with FTA’s U.S. domestic preference requirements and follow federal guidance, including: Buy America. The domestic preference procurement requirements of 49 U.S.C. § 5323(j), and FTA regulations, “Buy America Requirements,” 49 C.F.R. part 661, to the extent consistent with 49 U.S.C. § 5323(j). Section 39. Disputes, Breaches, Defaults, or Other Litigation. a. FTA Interest. FTA has a vested interest in the settlement of any violation of federal law, regulation, or disagreement involving the Award, the accompanying Agreement, and any Amendments thereto including, but not limited to, a default, breach, major dispute, or litigation, and FTA reserves the right to concur in any settlement or compromise. b. Notification to FTA. If a current or prospective legal matter that may affect the Federal Government emerges, the Subrecipient must promptly notify the FTA Chief Counsel, or FTA Regional Counsel for the Region in which the Subrecipient is located. (1) The types of legal matters that require notification include, but are not limited to, a major dispute, breach, default, litigation, or naming the Federal Government as a party to litigation or a legal disagreement in any forum for any reason. (2) Matters that may affect the Federal Government include, but are not limited to, the Federal Government’s interests in the Award, the accompanying Underlying Agreement, and any Amendments thereto, or the Federal Government’s administration or enforcement of federal laws, regulations, and requirements. (3) If the Subrecipient has credible evidence that a Principal, Official, Employee, Agent, or Third Party Participant of the Subrecipient, or other person has submitted a false claim under the False Claims Act, 31 U.S.C. § 3729 et seq., or has committed a criminal or civil violation of law pertaining to such matters as fraud, conflict of interest, bribery, gratuity, or similar misconduct involving federal assistance, the Subrecipient must promptly notify the U.S. DOT Inspector General, in addition to the FTA Chief Counsel or Regional Counsel for the Region in which the Subrecipient is loca ted. c. Federal Interest in Recovery. The Federal Government retains the right to a proportionate share of any proceeds recovered from any third party, based on the percentage of the federal share for the Agreement. Notwithstanding the preceding sentence, the Subrecipient may return all liquidated damages it receives to its Award Budget for its Agreement rather than return the federal share of those liquidated damages to the Federal Government, provided that the Subrecipient receives FTA’s prior written concurrence. d. Enforcement. The Subrecipient must pursue its legal rights and remedies available under any third-party agreement, or any federal, state, or local law or regulation. Applicable to Awards exceeding $100,000 by Statute From Section 4. Ethics. a. Lobbying Restrictions. The Subrecipient agrees that neither it nor any Third-Party Participant will use federal assistance to influence any officer or employee of a federal agency, member of Congress or an employee of a member of Congress, or officer or employee of Congress on matters that involve the Agreement, including any extension or modification, according to the following: (1) Laws, Regulations, Requirements, and Guidance. This includes: (a) The Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352, as amended, (b) U.S. DOT regulations, “New Restrictions on Lobbying,” 49 C.F.R. part 20, to the extent consistent with 31 U.S.C. § 1352, as amended, and (c) Other applicable federal laws, regulations, requirements, and guidance prohibiting the use of federal assistance for any activity concerning legislation or appropriations designed to influence the U.S. Congress or a state legislature, and (2) Exception. If permitted by applicable federal law, regulations, requirements, or guidance, such lobbying activities described above may be undertaken through the Subrecipient’s or Subrecipient’s proper official channels. Section 26. Environmental Protections – Clean Air and Clean Water Other Environmental Federal Laws. The Subrecipient agrees to comply or facilitate co mpliance and assures that its Third Party Participants will comply or facilitate compliance with all applicable federal laws, regulations, and requirements, and will follow applicable guidance, including, but not limited to, the Clean Air Act, Clean Water Act, Wild and Scenic Rivers Act of 1968, Coastal Zone Management Act of 1972, the Endangered Species Act of 1973, Magnuson Stevens Fishery Conservation and Management Act, DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 38 of 45 Version 10/23/19 Resource Conservation and Recovery Act, Comprehensive Environmental Response, Compen sation, and Liability Act, Executive Order No. 11990 relating to “Protection of Wetlands,” and Executive Order Nos. 11988 and 13690 relating to “Floodplain Management.”) Applicable with the Transfer of Property or Persons Section 15. Preference for United States Products and Services. Except as the Federal Government determines otherwise in writing, the Subrecipient agrees to comply with FTA’s U.S. domestic preference requirements and follow federal guidance, including: a. Buy America. The domestic preference procurement requirements of 49 U.S.C. § 5323(j), and FTA regulations, “Buy America Requirements,” 49 C.F.R. part 661, to the extent consistent with 49 U.S.C. § 5323(j), b. Cargo Preference. Preference – Use of United States-Flag Vessels. The shipping requirements of 46 U.S.C. § 55305, and U.S. Maritime Administration regulations, “Cargo Preference – U.S.-Flag Vessels,” 46 C.F.R. part 381, and c. Fly America. The air transportation requirements of Section 5 of the International Air Transportation Fair Competitive Practices Act of 1974, as amended, 49 U.S.C. § 40118, and U.S. General Services Administration (U.S. GSA) regulations, “Use of United States Flag Air Carriers,” 41 C.F.R. §§ 301 -10.131 – 301-10.143. Applicable to Construction Activities Section 24. Employee Protections. a. Awards Involving Construction. The Subrecipient agrees to comply and assures that each Third-Party Participant will comply with all federal laws, regulations, and requirements providing protections for construction employees involved in each Project or related activities with federal assistance provided through the Agreement, including the: (1) Prevailing Wage Requirements of: (a) Federal transit laws, specifically 49 U.S.C. § 5333(a), (FTA’s “Davis -Bacon Related Act”), (b) The Davis-Bacon Act, 40 U.S.C. §§ 3141 – 3144, 3146, and 3147, and (c) U.S. DOL regulations, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction (also Labor Standards Provisions Applicable to Nonconstr uction Contracts Subject to the Contract Work Hours and Safety Standards Act),” 29 C.F.R. part 5. (2) Wage and Hour Requirements of: (a) Section 102 of the Contract Work Hours and Safety Standards Act, as amended, 40 U.S.C. § 3702, and other relevant parts of that Act, 40 U.S.C. § 3701 et seq., an (b) U.S. DOL regulations, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction (also Labor Standards Provisions Applicable to Nonconstruction Contracts Subject to the Contract Work Hours and Safety Standards Act),” 29 C.F.R. part 5. (3) “Anti-Kickback” Prohibitions of: (a) Section 1 of the Copeland “Anti-Kickback” Act, as amended, 18 U.S.C. § 874, (b) Section 2 of the Copeland “Anti-Kickback” Act, as amended, 40 U.S.C. § 3145, and (c) U.S. DOL regulations, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States,” 29 C.F.R. part 3. (4) Construction Site Safety of: (a) Section 107 of the Contract Work Hours and Safety Standards Act, as amended, 40 U.S.C. § 3704, and other relevant parts of that Act, 40 U.S.C. § 3701 et seq., and (b) U.S. DOL regulations, “Recording and Reporting Occupational Injuries and Illnesses,” 29 C.F.R. part 1904; “Occupational Safety and Health Standards,” 29 C.F.R. part 1910; and “Safety and Health Regulations for Construction,” 29 C.F.R. part 1926. From Section 16 b. Bonding. The Subrecipient agrees to comply with the following bonding requirements and restrictions as provided in federal regulations and guidance: 1 Construction. As provided in federal regulations and modified by FTA guidance, for each Project or related activities implementing the Agreement that involve construction, it will provide bid guarantee bonds, contract performance bonds, and payment bonds. 2 Activities Not Involving Construction. For each Project or related activities implementing the Agreement not involving construction, the Subrecipient will not impose excessive bonding and will follow FTA guidance. DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 39 of 45 Version 10/23/19 From Section 23 c. Seismic Safety. The Subrecipient agrees to comply with the Earthquake Hazards Reduction Act of 1977, as amended, 42 U.S.C. § 7701 et seq., and U.S. DOT regulations, “Seismic Safety,” 49 C.F.R. part 41, specific ally, 49 C.F.R. § 41.117. Section 12 Civil Rights D.3 d. Equal Employment Opportunity Requirements for Construction Activities. Comply, when undertaking “construction” as recognized by the U.S. Department of Labor (U.S. DOL), with: a. U.S. DOL regulations, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor,” 41 C.F.R. chapter 60, and b. Executive Order No. 11246, “Equal Employment Opportunity in Federal Employment,” September 24, 1965, 42 U.S.C. § 2000e note, as amended by any later Executive Order that amends or supersedes it, referenced in 42 U.S.C. § 2000e note. Applicable to Nonconstruction Activities From Section 24. Employee Protections a. Awards Not Involving Construction. The Subrecipient agrees to comply and assures that each Third Party Participant will comply with all federal laws, regulations, and requirements providing wage and hour protections for nonconstruction employees, including Section 102 of the Contract Work Hours and Safety Standards A ct, as amended, 40 U.S.C. § 3702, and other relevant parts of that Act, 40 U.S.C. § 3701 et seq., and U.S. DOL regulations, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction (also Labor Standards Provisions Applicable to Nonconstruction Contracts Subject to the Contract Work Hours and Safety Standards Act),” 29 C.F.R. part 5. Applicable to Transit Operations a. Public Transportation Employee Protective Arrangements . As a condition of award of federal assistance appropriated or made available for FTA programs involving public transportation operations, the Subrecipient agrees to comply and assures that each Third-Party Participant will comply with the following employee protective arrangements of 49 U.S.C. § 5333(b): (1) U.S. DOL Certification. When its Awarded, the accompanying Agreement, or any Amendments thereto involve public transportation operations and are supported with federal assistance appropriated or made available for 49 U.S.C. §§ 5307 – 5312, 5316, 5318, 5323(a)(1), 5323(b), 5323(d), 5328, 5337, 5338(b), or 5339, or former 49 U.S.C. §§ 5308, 5309, 5312, or other provisions of law as required by the Federal Government, U.S. DOL must provide a certification of employee protective arrangements before FTA may provide federal assistance for that Award. The Subrecipient agrees that the certification issued by U.S. DOL is a condition of the Agreement and that the Subrecipient must comply with its terms and conditions. (2) Special Warranty. When its Agreement involves public transportation operations and is supported with federal assistance appropriated or made available for 49 U.S.C. § 5311, U.S. DOL will provide a Special Warranty for its Award, including its Award of federal assistance under the Tribal Transit Program. The Subrecipient agrees that its U.S. DOL Special Warranty is a condition of the Agreement and the Subrecipient must comply with its terms and conditions. (3) Special Arrangements for Agreements for Federal Assistance Authorized under 49 U.S.C. § 5310. The Subrecipient agrees, and assures that any Third Party Participant providing public transportation operations will agree, that although pursuant to 49 U.S.C. § 5310, and former 49 U.S.C. §§ 5310 or 5317, FTA has determined that it was not “necessary or appropriate” to apply the conditions of 49 U.S.C. § 5333(b) to any Subagreement participating in the program to provide public transportation for seniors (elderly individuals) and individuals with disabilities, FTA reserves the right to make case-by- case determinations of the applicability of 49 U.S.C. § 5333(b) for all transfers of funding authorized under title 23, United States Code (flex funds), and make other exceptions as it deems appropriate. Section 28. Charter Service. a. Prohibitions. The Recipient agrees that neither it nor any Third -Party Participant involved in the Award will engage in charter service, except as permitted under federal transit laws, specifically 49 U.S.C. § 5323(d), (g), and (r), FTA regulations, “Charter Service,” 49 C.F.R. part 604, any other Federal Charter Service regulations, federal requirements, or federal guidance. b. Exceptions. Apart from exceptions to the Charter Service restrictions in FTA’s Charter Service regulations, FTA has established the following additional exceptions to those restrictions: DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 40 of 45 Version 10/23/19 (1) FTA’s Charter Service restrictions do not apply to equipment or facilities supported with federal assistance appropriated or made available for 49 U.S.C. § 5307 to support a Job Access and Reverse Commute (JARC)- type Project or related activities that would have been eligible for assistance under repealed 49 U.S.C. § 5316 in effect in Fiscal Year 2012 or a previous fiscal year, provided that the Subrecipient uses that federal assistance for FTA program purposes only, and (2) FTA’s Charter Service restrictions do not apply to equipment or facilities supported with the federal assistance appropriated or made available for 49 U.S.C. § 5310 to support a New Freedom -type Project or related activities that would have been eligible for federal assistance under repealed 49 U.S.C. § 5317 in effect in Fiscal Year 2012 or a previous fiscal year, provided the Subrecipient uses that federal assistance for program purposes only. c. Violations. If it or any Third Party Participant engages in a pattern of violations of FTA’s Charter Service regulations, FTA may require corrective measures and remedies, including withholding an amount of federal assistance as provided in FTA’s Charter Service regulations, 49 C.F.R. part 604, appendix D, or barring it or the Third Party Participant from receiving federal assistance provided in 49 U.S.C. chapter 53, 23 U.S.C. § 133, or 23 U.S.C. § 142. Section 29. School Bus Operations. a. Prohibitions. The Subrecipient agrees that neither it nor any Third Party Participant that is participating in its Award will engage in school bus operations exclusively for the transportation of students or school personnel in competition with private school bus operators, except as permitted by federal transit laws, 49 U.S.C. § 5323(f) or (g), FTA regulations, “School Bus Operations,” 49 C.F.R. part 605, and any other applicable federal “School Bus Operations” laws, regulations, federal requirements, or applicable federal guidance. b. Violations. If a Subrecipient or any Third-Party Participant has operated school bus service in violation of FTA’s School Bus laws, regulations, or requirements, FTA may require the Subrecipient or Third Party Participant to take such remedial measures as FTA considers appropriate, or bar the Subrecipient or Third Party Participant from receiving federal transit assistance. From Section 35 Substance Abuse c. Alcohol Misuse and Prohibited Drug Use. (1) Requirements. The Subrecipient agrees to comply and assures that its Third-Party Participants will comply with: (a) Federal transit laws, specifically 49 U.S.C. § 5331, (b) FTA regulations, “Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations,” 49 C.F.R. part 655, and (c) Applicable provisions of U.S. DOT regulations, “Procedures for Transportation Workplace Drug and Alcohol Testing Programs,” 49 C.F.R. part 40. (2) Remedies for Non-Compliance. The Subrecipient agrees that if FTA determines that the Subrecipient or a Third-Party Participant receiving federal assistance under 49 U.S.C. chapter 53 is not in compliance with 49 C.F.R. part 655, the Federal Transit Administrator may bar that Subrecipient or Third Party Participant from receiving all or a portion of the federal transit assistance for public transportation it would otherwise receive. Applicable to Planning, Research, Development, and Documentation Projects Section 17. Patent Rights. a. General. The Subrecipient agrees that: (1) Depending on the nature of the Agreement, the Federal Government may acquire patent rights when the Subrecipient or Third-Party Participant produces a patented or patentable invention, improvement, or discovery; (2) The Federal Government’s rights arise when the patent or patentable information is conceived or reduced to practice with federal assistance provided through the Agreement; or (3) When a patent is issued or patented information becomes available as described in the preceding section 17.a.(2) of this Master Agreement (FTA MA(23)), the Subrecipient will notify FTA immediately and provide a detailed report satisfactory to FTA. b. Federal Rights. The Subrecipient agrees that: (1) Its rights and responsibilities, and each Third-Party Participant’s rights and responsibilities, in that federally assisted invention, improvement, or discovery will be determined as provided in applicable federal laws, regulations, requirements, and guidance, including any waiver thereof, and (2) Unless the Federal Government determines otherwise in writing, irrespective of its status or the status of any Third Party Participant as a large business, small business, state government, state instrumentality, local government, Indian tribe, nonprofit organization, institution of higher education, or individual, the DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 41 of 45 Version 10/23/19 Subrecipient will transmit the Federal Government’s patent rights to FTA, as specified in 35 U.S.C. § 200 et seq., and U.S. Department of Commerce regulations, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” 37 C.F.R. part 401. c. License Fees and Royalties. Consistent with the applicable U.S. DOT Common Rules, the Subrecipient agrees that license fees and royalties for patents, patent applications, and inventions produced with federal assistance provided through the Agreement are program income and must be used in compliance with applicable federal requirements. Section 18. Rights in Data and Copyrights. a. Definition of “Subject Data.” As used in this section, “subject data” means recorded information whether or not copyrighted, and that is delivered or specified to be delivered as required by the Agreement. Examples of “subject data” include, but are not limited to computer software, standards, specifications, engineering drawings and associated lists, process sheets, manuals, technical reports, catalog item identifications, and related information, but do not include financial reports, cost analyses, or other similar information used for performance or administration of the Agreement. b. General Federal Restrictions. The following restrictions apply to all subject data first produced in the performance of the Agreement: (1) Prohibitions. The Subrecipient may not publish or reproduce any subject data, in whole, in part, or in any manner or form, or permit others to do so. (2) Exceptions. The prohibitions do not apply to publications or reproductions for the Subrecipient’s own internal use, an institution of higher learning, the portion of subject data that the Federal Government has previously released or approved for release to the public, or the portion of data that has the Federal Government’s prior written consent for release. c. Federal Rights in Data and Copyrights. The Subrecipient agrees that: (1) General. It must provide a license to its “subject data” to the Federal Government that is royalty -free, non- exclusive, and irrevocable. The Federal Government’s license must permit the Federal Government to reproduce, publish, or otherwise use the subject data or permit other entities or individuals to use the subject data provided those actions are taken for Federal Government purposes, and (2) U.S. DOT Public Access Plan – Copyright License. The Subrecipient grants to U.S. DOT a worldwide, non- exclusive, non-transferable, paid-up, royalty-free copyright license, including all rights under copyright, to any and all Publications and Digital Data Sets as such terms are defined in the U.S. DOT Public Access plan, resulting from scientific research funded either fully or partially by this funding agreement. The Subrecipient herein acknowledges that the above copyright license grant is first in time to any and all other grants of a copyright license to such Publications and/or Digital Data Sets, and that U.S. DOT shall have priority over any other claim of exclusive copyright to the same. d. Special Federal Rights in Data for Research, Development, Demonstration, Deployment, Technical Assistance, and Special Studies Programs. In general, FTA’s purpose in providing federal assistance for a research, development, demonstration, deployment, technical assistance, or special studies program is to increase transportation knowledge, rather than limit the benefits of the Award to the Subr ecipient and its Third-Party Participants. Therefore, the Subrecipient agrees that: (1) Publicly Available Report. When an Award providing federal assistance for any of the programs described above is completed, it must provide a report of the Agreement that FTA may publish or make available for publication on the Internet. (2) Other Reports. It must provide other reports related to the Award that FTA may request. (3) Availability of Subject Data. FTA may make available its copyright license to the subject data, and a copy of the subject data to any FTA Recipient or any Third -Party Participant at any tier, except as the Federal Government determines otherwise in writing. (4) Identification of Information. It must identify clearly any specific confidential, p rivileged, or proprietary information submitted to FTA. (5) Incomplete. If the Award is not completed for any reason whatsoever, all data developed with federal assistance for the Award becomes “subject data” and must be delivered as the Federal Government may direct. (6) Exception. This section does not apply to an adaptation of any automatic data processing equipment or program that is both for the Subrecipient’s use and acquired with FTA capital program assistance. e. License Fees and Royalties. Consistent with the applicable U.S. DOT Common Rules, the Subrecipient agrees that license fees and royalties for patents, patent applications, and inventions produced with federal assistance provided through the Agreement are program income and must be used in co mpliance with federal applicable requirements. DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 42 of 45 Version 10/23/19 f. Hold Harmless. Upon request by the Federal Government, the Subrecipient agrees that if it intentionally violates any proprietary rights, copyrights, or right of privacy, and if its violation under the prece ding section occurs from any of the publication, translation, reproduction, delivery, use or disposition of subject data, then it will indemnify, save, and hold harmless against any liability, including costs and expenses of the Federal Government’s officers, employees, and agents acting within the scope of their official duties. The Subrecipient will not be required to indemnify the Federal Government for any liability described in the preceding sentence, if the violation is caused by the wrongful acts of federal officers, employees or agents, or if indemnification is prohibited or limited by applicable state law. g. Restrictions on Access to Patent Rights. Nothing in this section of this Master Agreement (FTA MA(23)) pertaining to rights in data either implies a license to the Federal Government under any patent, or may be construed to affect the scope of any license or other right otherwise granted to the Federal Government under any patent. h. Data Developed Without Federal Assistance or Support. The Subrecipient agrees that in certain circumstances it may need to provide to FTA data developed without any federal assistance or support. Nevertheless, this section generally does not apply to data developed without federal assistance, even though that data may have been used in connection with the Award. The Subrecipient agrees that the Federal Government will not be able to protect data developed without federal assistance from unauthorized disclosure unless that data is clearly marked “Proprietary,” or “Confidential.” i. Requirements to Release Data. The Subrecipient understands and agrees that the Federal Government may be required to release data and information the Subrecipient submits to the Federal Government as required under: (1). The Freedom of Information Act (FOIA), 5 U.S.C. § 552, (2) The U.S. DOT Common Rules, (3) U.S. DOT Public Access Plan, which provides that the Subrecipient agrees to satisfy the reporting and compliance requirements as set forth in the U.S. DOT Public Access plan, including, but not limited to, the submission and approval of a Data Management Plan, the use of Open Researcher and Contributor ID (ORCID) numbers, the creation and maintenance of a Research Project record in the Transportation Research Board’s (TRB) Research in Progress (RiP) database, and the timely and complete submission of all required publications and associated digital data sets as such terms are defined in the DOT Public Access plan. Additional information about how to comply with the requirements can be found at: http://ntl.bts.gov/publicaccess/howtocomply.html, or (4) Other federal laws, regulations, requirements, and guidance concerning access to records pertaining to the Award, the accompanying Agreement, and any Amendments thereto. Miscellaneous Special Requirements From Section 12. Civil Rights. a. Disadvantaged Business Enterprise (and Prompt Payment and Return of Retainage). To the extent authorized by applicable federal laws, regulations, or requirements, the Subrecipient agrees to facilitate, and assures that each Third-Party Participant will facilitate, participation by small business concerns owned and controlled by socially and economically disadvantaged individuals, also referred to as “Disadvantaged Business Enterprises” (DBEs), in the Agreement as follows: (1) Statutory and Regulatory Requirements. The Subrecipient agrees to comply with: (a) Section 1101(b) of the FAST Act, 23 U.S.C. § 101 note, (b) U.S. DOT regulations, “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs,” 49 C.F.R. part 26, and (c) Federal transit law, specifically 49 U.S.C. § 5332, as provided in section 12 of this Master Agreement (FTA MA(23)). (2) DBE Program Requirements. A Subrecipient that receives planni ng, capital and/or operating assistance and that will award prime third-party contracts exceeding $250,000 the requirements of 49 C.F.R. part 26. (3) Special Requirements for a Transit Vehicle Manufacturer (TVM). The Subrecipient agrees that: (a) TVM Certification. Each TVM, as a condition of being authorized to bid or propose on FTA-assisted transit vehicle procurements, must certify that it has complied with the requirements of 49 C.F.R. part 26, and (b) Reporting TVM Awards. Within 30 days of any third -party contract award for a vehicle purchase, the Subrecipient must submit to FTA the name of the TVM contractor and the total dollar value of the third party contract, and notify FTA that this information has been attached to FTA’s electronic award management system. The Subrecipient must also submit additional notifications if options are exercised in subsequent years to ensure that the TVM is still in good standing. (4) Assurance. As required by 49 C.F.R. § 26.13(a): (a) Recipient Assurance. The Subrecipient agrees and assures that: DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 43 of 45 Version 10/23/19 1 It must not discriminate on the basis of race, color, national origin, or sex in the award and performance of any FTA or U.S. DOT-assisted contract, or in the administration of its DBE program or the requirements of 49 C.F.R. part 26, 2 It must take all necessary and reasonable steps under 49 C.F.R. part 26 to ensure nondiscrimination in the award and administration of U.S. DOT assisted contracts, 3 Its DBE program, as required under 49 C.F.R. part 26 and as approved by U.S. DOT, is incorporated by reference and made part of the Underlying Agreement, and 4 Implementation of its DBE program approved by U.S. DOT is a legal obligation and failure to carry out its terms shall be treated as a violation of the Master Agreement (FTA MA(23)). (b) Subrecipient/Third Party Contractor/Third Party Subcontractor Assurance. The Subrecipient agrees and assures that it will include the following assurance in each subagreement and third-party contract it signs with a Subrecipient or Third-Party Contractor and agrees to obtain the agreement of each of its Subrecipients, Third Party Contractors, and Third Party Subcontractors to include the following assurance in every subagreement and third party contract it signs: 1 The Subrecipient, each Third-Party Contractor, and each Third-Party Subcontractor must not discriminate on the basis of race, color, national origin, or sex in the award and performance of any FTA or U.S. DOT-assisted subagreement, third party contract, and third party subcontract, as applicable, and the administration of its DBE program or the requirements of 49 C.F.R. part 26, 2 The Subrecipient, each Third-Party Contractor, and each Third-Party Subcontractor must take all necessary and reasonable steps under 49 C.F.R. part 26 to ensure nondiscrimination in the award and administration of U.S. DOT-assisted subagreements, third party contracts, and third party subcontracts, as applicable, 3 Failure by the Subrecipient and any of its Third Party Contractors or Third Party Subcontractors to carry out the requirements of subparagraph 12.e(4)(b) (of FTA MA(23)) is a material breach of their subagreement, third party contract, or third party subcontract, as applicable, and 4 The following remedies, or such other remedy as the Subrecipient deems appropriate, include, but are not limited to, withholding monthly progress payments; assessing sanctions; liquidated damages; and/or disqualifying the Subrecipient, Third Party Contractor, or Third -Party Subcontractor from future bidding as non-responsible. (5) Remedies. Upon notification to the Subrecipient of its failure to carry out its approved program, FTA or U.S. DOT may impose sanctions as provided for under 49 C.F.R. part 26, and, in appropriate cases, refer the matter for enforcement under either or both 18 U.S.C. § 1001, and/or the Program Fraud Civil Remedies Act of 1986, 31 U.S.C. § 3801 et seq. From Section 12. Civil Rights. b. Nondiscrimination on the Basis of Disability. The Subrecipient agrees to comply with the following federa l prohibitions against discrimination on the basis of disability: (1) Federal laws, including: (a) Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, which prohibits discrimination on the basis of disability in the administration o f federally assisted Programs, Projects, or activities, (b) The Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. § 12101 et seq., which requires that accessible facilities and services be made available to individuals with disabilities: 1 For FTA Recipients generally, Titles I, II, and III of the ADA apply, but 2 For Indian Tribes, Titles II and III of the ADA apply, but Title I of the ADA does not apply because it exempts Indian Tribes from the definition of “employer,” (c) The Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq., which requires that buildings and public accommodations be accessible to individuals with disabilities, (d) Federal transit law, specifically 49 U.S.C. § 5332, which now includes disability as a prohibited basis for discrimination, and (e) Other applicable federal laws, regulations, and requirements pertaining to access for seniors or individuals with disabilities. (2) Federal regulations and guidance, including: (a) U.S. DOT regulations, “Transportation Services for Individuals with Disabilities (ADA),” 49 C.F.R. part 37, (b) U.S. DOT regulations, “Nondiscrimination on the Basis of Disability in Programs and Activities Receiving or Benefiting from Federal Financial Assistance,” 49 C.F.R. part 27, (c) Joint U.S. Architectural and Transportation Barriers Compliance Board (U.S. ATBCB) and U.S. DOT regulations, “Americans With Disabilities (ADA) Accessibility Specifications for Transportation Vehicles,” 36 C.F.R. part 1192 and 49 C.F.R. part 38, DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 44 of 45 Version 10/23/19 (d) U.S. DOT regulations, “Transportation for Individuals with Disabilities: Passenger Vessels,” 49 C.F.R. part 39, (e) U.S. DOJ regulations, “Nondiscrimination on the Basis of Disability in State and Local Government Services,” 28 C.F.R. part 35, (f) U.S. DOJ regulations, “Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities,” 28 C.F.R. part 36, (g) U.S. EEOC, “Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act,” 29 C.F.R. part 1630, (h) U.S. Federal Communications Commission regulations, “Telecommunications Relay Services and Related Customer Premises Equipment for Persons with Disabilities,” 47 C.F.R. part 64, Subpart F, (i) U.S. ATBCB regulations, “Electronic and Information Technology Accessibility Standards,” 36 C.F.R. part 1194, (j) FTA regulations, “Transportation for Elderly and Handicapped Persons,” 49 C.F.R. part 609, (k) FTA Circular 4710.1, “Americans with Disabilities Act: Guidance,” and (l) Other applicable federal civil rights and nondiscrimination regulations and guidance . Section 16. Procurement. For Assignability a. Federal Laws, Regulations, Requirements, and Guidance. The Subrecipient agrees: (1 To comply with the requirements of 49 U.S.C. chapter 53 and other applicable federal laws, regulations, and requirements in effect now or later that affect its third-party procurements, (2) To comply with the applicable U.S. DOT Common Rules, and (3) To follow the most recent edition and any revisions of FTA Circular 4220.1, “Third Party Contracting Guidance,” to the extent consistent with applicable federal laws, regulations, requirements, and guidance. State Requirements Section 37. Special Notification Requirements for States. a. Types of Information. To the extent required under federal law, the State, agrees to provide the following information about federal assistance awarded for its State Program, Project, or related activities: (1) The Identification of FTA as the federal agency providing the federal assistance for a State Program or Project, (2) The Catalog of Federal Domestic Assistance Number of the program from which the federal assistance for a State Program or Project is authorized, and (3) The amount of federal assistance FTA has provided for a State Program or Project. b. Documents. The State agrees to provide the information required under this provision in the following documents: (1) applications for federal assistance, (2) requests for proposals, or solicitations, (3) forms, (4) notifications, (5) press releases, and (6) other publications.. DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract Contract Number: 21-HTR-ZL-00161/491002407 Page 45 of 45 Version 10/23/19 EXHIBIT E, VERIFICATION OF PAYMENT This checklist is to assist the Subrecipient in preparation of its billing packets to State. This checklist is provided as guidance and is subject to change by State. State shall provide notice of any such changes to Subrecipient. All items may not apply to your particular entity. State’s goal is to reimburse Subrecipients as quickly as possible and a well organized and complete billing packet helps to expedite payment. Verification of Payment –  General Ledger Report must have the following:  Identify check number or EFT number;  If no check number is available, submit Accounts Payable Distribution report with the General Ledger;  In-Kind (must be pre-approved by State) and/or cash match;  Date of the report;  Accounting period;  Current period transactions; and  Account coding for all incurred expenditures.  If no General Ledger Report, all of the following are acceptable :  copies of checks;  check registers; and  paycheck stub showing payment number, the amount paid, the check number or electronic funds transfer (EFT), and the date paid.  State needs to ensure that expenditures incurred by the local agencies have been paid by Party before State is invoiced by Party.  Payment amounts should match the amount requested on the reimbursement. Additional explanation and documentation is required for any variances. In-Kind or Cash Match – If an entity wishes to use these types of match, they must be approved by State prior to any Work taking place.  If in-kind or cash match is being used for the Local Match, the in-kind or cash match portion of the project must be included in the project application and the statement of work attached to the Agreement or purchase order. FTA does not require pre-approval of in-kind or cash match, but State does.  General ledger must also show the in-kind and/or cash match. Indirect costs – If an entity wishes to use indirect costs, the rate must be approv ed by State prior to applying it to the reimbursements.  If indirect costs are being requested, an approved indirect letter from State or your cognizant agency for indirect costs, as defined in 2 CCR §200. 19, must be provided. The letter must state what indirect costs are allowed, the approved rate and the time period for the approval. The indirect cost plan must be reconciled annually and an updated letter submitted each year thereafter. Fringe Benefits- Considered part of the Indirect Cost Rate a nd must be reviewed and approved prior to including these costs in the reimbursements.  Submit an approval letter from the cognizant agency for indirect costs, as defined in 2 CCR §200. 19, that verifies fringe benefit, or  Submit the following fringe benefit rate proposal package to State Audit Division:  Copy of Financial Statement;  Personnel Cost Worksheet;  State of Employee Benefits; and  Cost Policy Statement. DocuSign Envelope ID: B28FE601-CD33-4688-AE6A-929D6ABCD733 ATTACHMENT A: State Grant Contract PROTERRA FORM SALE CONTRACT Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 TOWN OF AVON AND PROTERRA INC Contract No.: PA-2021-001-AVON Purchase and Sale of Two (2) 35-Foot Battery Electric Buses and Three (3) Associated Charging Stations DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 2 This Contract Agreement (hereinafter referred to as “Contract” or “Agreement”) is made and entered into effective as of the date executed in full (“Effective Date”) by Town of Avon, a home rule municipality and political subdivision of the State of Colorado, and Proterra Inc, a Delaware corporation, with its principal place of business 1815 Rollins Road, Burlingame, CA 94010 (“Contractor”) for the manufacture and delivery of Two (2) 35-Foot Proterra Battery Electric Buses (hereinafter “Buses”), and Three (3) Plug-In Charging Station(s) (hereinafter “Plug-In Charging Stations”). Town of Avon and the Contractor are sometimes individually referred to as “Party” and collectively as “Parties.” SEC. 1 CONTRACT DOCUMENTS A. The Contract consists of the following which are incorporated herein by reference as appropriate: 1. General Contractual Provisions contained herein. 2. Option Tracker and Configuration Templates set forth as Attachment 1 hereto 3. Bus Technical Specifications set forth as Attachment 2 hereto. 4. Charging Station Technical Specifications set forth as Attachment 3 hereto. 5. Warranty Provisions as set forth as Attachment 4 hereto. B. In case of any conflict among these documents where the Parties' intended resolution is not clear, the order of precedence shall be in the same order set forth in paragraph A above. SEC. 2 TERM OF CONTRACT Subject to annual appropriation, Town of Avon and the Contractor agree that the Term of this Contract shall be for five (5) years commencing on the later of the Effective Date or the date of the Notice to Proceed (as defined below) unless otherwise extended by written amendment mutually agreed by Town of Avon and Contractor. Notwithstanding the foregoing, or anything to the contrary contained herein, in no event shall the Effective Date be deemed to have occurred, and none of the obligations of Town of Avon or Contractor under this Contract shall be deemed to have accrued, until Town of Avon has issued to Contractor a written notice to proceed under this Contract (“Notice to Proceed”). SEC. 3 PAYMENT A. Town of Avon shall pay and the Contractor shall accept: 1. Eight Hundred Forty-Eight Thousand Seven Hundred and Seventy-Three Dollars ($848,773.00) per Bus (“Bus Unit Price”), for a total of One Million Six Hundred Ninety- Seven Thousand Five Hundred and Forty-Six Dollars ($1,697,546.00) for all Two (2) Buses initially purchased under this Agreement; 2. Thirty-Five Thousand Five Hundred & Fifty Dollars ($35,550.00) per Plug-In Charging Station (“Plug-In Charging Unit Price”) for a total of One Hundred Six Thousand Six Hundred & Fifty Dollars ($106,650.00) for the Three (3) Charging Stations consisting of three (3) Star-Point Junction Boxes & (3) Dispensers initially purchased under this Agreement; DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 3 3. Eighty-Nine Thousand Five Hundred & Twenty Dollars ($89,520.00) (“Plug-In Charging Installation Price”) for the Three (3) Charging Stations initially purchased under this Agreement; 4. Six Thousand Five Hundred & Twelve Dollars ($6,512.00) for the Proterra Diagnostic Software License initially purchased under this Agreement; 5. Fifty Thousand & Seven Dollars ($50,007.00) for the Spare Parts initially purchased under this Agreement; for a total contract price of One Million Nine Hundred Fitty Thousand Two Hundred & Thirty-Five Dollars ($1,930,235.00) BUT SPECIFICALLY EXCLUDING SALES TAX (“Contract Price”). It is understood and agreed by Town of Avon and the Contractor that Contractor will be responsible for the collection (as an addition to the aforementioned total contract price) and remittance of sales tax, unless Town of Avon provides exemption or similar documentation. B. The Parties agree that the Contractor will submit an invoice to Town of Avon for payment of Contract Price, and Town of Avon will make payments of Contract Price, on the following schedule: 1. Bus Payments: Town of Avon shall make progress payments on a per-Bus basis in accordance with the below provisions: a. 25% payment of the Bus Unit Price when Bus enters the production line. b. 25% payment of the Bus Unit Price when batteries are installed in a Bus. c. 25% payment of the Bus Unit Price when Bus is accepted by Town of Avon at Contractor’s facility in accordance with the provisions of this Contract. d. 25% payment of the Bus Unit Price when Bus is delivered and accepted by Town of Avon at Town of Avon’s facility in accordance with the provisions of this Contract. 2. Plug-In Charging Station Payments: Town of Avon shall make progress payments on a per-Charging Station basis in accordance with the below provisions: a. 25% payment of the Plug-In Charging Station Unit Price and the Plug-In Charging Station Installation Price when site plans and preparation for a Plug-In Charging Station are substantially completed as reasonably determined by Contractor. b. 50% payment of the Plug-In Charging Station Unit Price and the Plug-In Charging Station Installation Price when a Plug-In Charging Station is delivered and commissioned. c. 25% payment of the Plug-In Charging Station Unit Price and the Plug-In Charging Station Installation Price when a Charging Station is accepted by Town of Avon in accordance with the provisions of this Contract; and 3. Proterra Charger Installation Payment. Town of Avon agrees that it will make payment for the Proterra Charger Installation with respect to a particular Charging Station upon receiving an invoice from Contractor. DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 4 4. Payment for Proterra Extended Charger Warranty Coverage. Town of Avon agrees that it will make payment for the Proterra Extended Charger Warranty with respect to a particular Charging Station upon receiving an invoice from Contractor. 5. Unless otherwise set forth herein, Town of Avon shall make all payments to Contractor no later than fifteen (15) calendar days of receipt of an invoice from Contractor. C. All payments due under this Contract in excess of Twenty-Five Thousand Dollars ($25,000) shall be made by wire unless otherwise mutually agreed in writing to Proterra Inc pursuant to the following wiring instructions: Bank of America Merrill Lynch ABA Number: 1210-0035-8 Beneficiary Account Number: 1416800802 Beneficiary Address: 1815 Rollins Road, Burlingame, CA 94010 D. Town of Avon shall be charged and shall make payments for spare parts and/or equipment at the unit prices itemized in the price schedule to be delivered by Contractor within fifteen (15) calendar days after the delivery and acceptance of said spare parts and/or equipment and receipt of a proper invoice. Town of Avon shall also be responsible for and pay any sales tax associated with the purchase of any such spare parts and/or equipment. E. The Contractor may charge interest for late payment if payment is delayed after the payment due dates set forth in this Section 3. Interest will be charged at a rate not to exceed the prime rate of interest published by The Wall Street Journal plus 3% commencing with the date such payment was due. F. Unless otherwise provided in this Contract, the Contractor shall pay all federal, state and local taxes, and duties applicable to and assessable against any work, goods, services, processes and operations incidental to or involved in the Contract, excluding sales taxes associated with the sale of the items set forth herein to Town of Avon (i.e., for the avoidance of doubt, Town of Avon shall pay any and all sales taxes associated with or resulting from purchases pursuant to this Contract). SEC. 4 OPTIONS Intentionally left blank. SEC. 5 ADDITIONAL EQUIPMENT, SERVICES AND DELIVERABLES The Parties recognize that additional services and equipment are necessary for Town of Avon to fully implement the Buses and Charging Stations supplied by the Contractor under the terms of this Agreement, which are set forth below as either being included in or excluded from the Contract Price. Included in the Contract Price: 1. Driver, Maintenance and Repair and Parts Manuals, in quantities/formatting provided pursuant to Section 14 herein DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 5 Additional Charge/Not Included in the Contract Price: 1. Diagnostic laptop, software and tools (if NOT selected on the Option Tracker) Contractor to provide list and charges of tools) 2. Training beyond that agreed in Section 14 of this Contract (if NOT selected on the Option Tracker) 3. Printed documentation beyond that agreed in/supplied pursuant to Section 14 in this Contract (if NOT Selected on the Option Tracker) 4. Civil Design, Installation and Management of Charging Stations except as set forth on Attachment 4 5. Additional Driver, Maintenance and Repair and Parts Manuals not provided pursuant to Section 14 herein If Town of Avon has not purchased spare parts through Proterra, Contractor has attached to this Contract a Recommended Spare Parts Package to be purchased and maintained at Town of Avon’s chosen location, which shall have ample storage room to stock the spare parts, for Bus and OH Charging Station repair and maintenance. SEC. 6 PRE-PRODUCTION MEETING A. A formal pre-production meeting shall be held to review the technical specifications and related Contract provisions and to discuss actual and potential open items. B. The Contractor and Town of Avon agree that the pre-production meeting will be held at either Town of Avon’s chosen location or Contractor’s facility, as mutually determined between Town of Avon and Contractor. Contractor shall provide a formal production schedule at this meeting which, upon mutual acceptance by the Parties, shall be automatically incorporated by reference into this Agreement. The Parties shall make commercially reasonable efforts to resolve all the issues/questions raised at this pre-production meeting within six (6) weeks after the date of the meeting. During the pre-production meeting, the Parties shall address the schedule for development regarding the Charging Station Installation. SEC. 7 FINAL BUS DESIGN In the course of bus design and production, Contractor shall request bus option and design input from Town of Avon. Town of Avon shall give input on bus option and design within a reasonable timeframe. Contractor and Town of Avon shall both agree on final bus option and design package. After agreeing on final bus option and design, Contractor’s Engineering Department will design bus to required specifications. Town of Avon shall review design and once satisfied, approve “Final Bus Design”. Contractor commits to build bus to Final Bus Design and specifications. Town of Avon commits to accept buses built to Final Bus Design. If Town of Avon, after agreeing to final bus design, makes material changes to final bus design, Town of Avon acknowledges that Proterra, in its sole discretion, retains recourse to pursue any of the following actions, as described below, in the “Late Changes” Clause. Contractor shall solely determine whether changes are “material.” Additionally, Town of Avon agrees to inspect buses with solely the “Final Bus Design” as the standard for inspection. DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 6 “Final Bus Design” is comprised of Proterra’s Option Tracker & Configuration Templates (ATTACHMENT 1), and Town of Avon’s Technical Specification (if any such specification exists; ATTACHMENT 2). Any changes to Town of Avon’s Technical Specification, agreed to by both parties and incorporated into the “Final Bus Design,” shall supersede the Technical Specification. SEC. 8 BUS DELIVERY SCHEDULE AND ACCEPTANCE PROCEDURES A. Delivery of Buses shall be determined by signed receipt of Town of Avon's designated agent(s), at point of delivery and may be preceded by a cursory inspection of the Bus. Delivery location for the Buses is 500 Swift Gulch Road, Avon, CO 81620. [The delivery of the Bus shall be FOB at Contractor’s plant identified in Section 18.C below.] B. Following delivery by Town of Avon to Contractor of a written Notice to Proceed under this Contract for Buses, Contractor agrees to deliver the Buses pursuant to the schedule agreed upon between Contractor and Town of Avon in the pre-production meeting, or as otherwise agreed to by the Parties. C. Hours of delivery shall be according to a mutually agreed upon schedule. D. Prior to Town of Avon’s final acceptance of each Bus, each Bus shall undergo Town of Avon’s reasonable tests prior to Town of Avon’s final acceptance of each Bus. Each Bus will be deemed accepted by Town of Avon only when the Contractor has complied in all material respects with the ”Final Bus Design” set forth in Proterra’s Option Tracker & Configuration Templates (ATTACHMENT 1), and Town of Avon’s Technical Specification (if any such specification exists; ATTACHMENT 2) of this Agreement. Acceptance will not be completed until the Contractor has made all reasonably requested repairs to the Bus in accordance with Section 12 of this Contract. Town of Avon agrees and acknowledges that it must make its determination on acceptance or non-acceptance no later than twelve (12) calendar days following receipt of each Bus under this Contract or the Bus shall be deemed accepted, and that in the event of any non-acceptance, Town of Avon shall provide Contractor a reasonably detailed description of the reasons for non- acceptance. Town of Avon shall not be able to reject or not accept a Bus after such twelve (12) calendar day period. Notwithstanding the foregoing, placement of any non-accepted Bus into service shall, notwithstanding anything to the contrary in this Agreement, be deemed acceptance of such Bus. E. The Contractor’s pre-delivery tests and inspections of all Buses shall be performed at or near the Contractor’s plant/facility, and they shall be witnessed by Town of Avon’s inspector(s). Any such tests and inspections performed at or near Contractor’s plant/facility shall be made using the same criteria as set forth above in Subsection (D), and if Town of Avon inspects and accepts a Bus at or near Contractor’s plant/facility, and such Bus has not materially changed when it has been delivered and received by Town of Avon as compared to when such Bus was inspected and accepted at or near Contractor’s plant/facility, then Town of Avon shall not and may not then reject such delivered and received Bus. No post-delivery test/inspection shall apply criteria that are different from the criteria applied in any pre-delivery test/inspection. SEC. 9 CHARGING STATION DELIVERY SCHEDULE AND ACCEPTANCE PROCEDURES DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 7 A. Delivery of the Charging Station shall be determined by signed receipt of Town of Avon's designated agent(s), at point of delivery, unless directed to another location as directed by Town of Avon. Delivery locations will be provided by Town of Avon prior to production. Charging Station delivery shall be made FOB at 500 Swift Gulch Road, Avon, CO 81620. B. The Contractor agrees to deliver the Charging Station no later than fifteen (15) days prior to delivery of the first Bus under this Contract. C. Hours of delivery shall be between 8:30 AM through 5:30 PM local time, Monday through Friday except holidays. D. Each Charging Station will be deemed accepted by Town of Avon only when the Contractor has commissioned the Charging Station and demonstrated that it works to charge the Proterra Catalyst Buses. Acceptance will not be completed until the Contractor has made all reasonably requested repairs to the Charging Station in accordance with Section 12 of this Contract. Town of Avon agrees and acknowledges that it must make its determination on acceptance or non-acceptance no later than twelve (12) calendar days following receipt of and installation of the Charging Station or the Charging Station shall be deemed accepted, and that in the event of any non-acceptance, Town of Avon shall provide Contractor a reasonably detailed description of the reasons for non-acceptance. Town of Avon shall not be able to reject or not accept a Charging Station after such twelve (12) calendar day period. If Proterra has agreed to a Turn-Key (TK) charging solution: If completion or functionality of the charger portion of the project is delayed, whereas Proterra has accepted responsibility for charger installation, but Town of Avon otherwise finds the Bus or Buses themselves acceptable in accordance with the terms and requirements herein, a holdback of 10% of the total contract price for the Bus or Buses may be applied until the chargers are installed and functional in accordance in all material respects with [ATTACHMENT 3]. Town of Avon shall promptly pay such 10% holdback once the chargers are installed and functional in accordance in all material respects with [ATTACHMENT 3]. If Proterra has agreed to a Technical Assistance (TA) charging solution: Whereas Town of Avon accepts responsibility for charger installation and, if, through no fault of Proterra, charger installation or functionality is delayed, Town of Avon agrees to accept the Bus or Buses that meet final bus design specifications in accordance with the terms and requirements herein, even if the charge installation is not yet functional or is delayed. SEC. 10 END OF LIFE BATTERY REPLACEMENT Intentionally left blank. SEC. 11 TITLE The Contractor shall provide reasonably adequate documents for registering the Bus in the State of Colorado to Town of Avon at the time of delivery. Risk of loss on any Bus or OH Charging Station remains with the Contractor until delivery to Town of Avon, at which point risk of loss DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 8 passes to Town of Avon. SEC. 12 REPAIRS OF BUSES AND CHARGING STATIONS AFTER NON- ACCEPTANCE A. After non-acceptance of a Bus or Charging Station, the Contractor must take commercially reasonable efforts to complete work within fifteen (15) business days after receiving notification from Town of Avon of failure of acceptance tests. In the event a repair shall take longer than fifteen (15) business days, Contractor shall have such reasonable time as is necessary to complete the repair so long as Contractor commences to resolve the repair issue within such fifteen (15) business day period. Town of Avon shall make the Bus or OH Charging Station available to complete repairs timely with the Contractor’s repair schedule. B. The Contractor shall provide all spare parts, tools, and space required to complete the repairs. Town of Avon agrees that for the first thirty (30) day period following non-acceptance, Contractor shall have the right to perform repairs at Town of Avon’s facilities, provided that following such thirty (30) day period if the non-accepted item is not corrected then, at Town of Avon’s option, the Contractor may be required to remove the non-accepted item from Town of Avon's facilities while repairs are being effected. If the non-accepted item is removed from Town of Avon's facilities, repair procedures must be pursued by the Contractor's representatives. SEC. 13 ENGINEER/SERVICE REPRESENTATIVES The Contractor shall provide a field service representative(s) available on request to assist Town of Avon's staff in the solution of engineering or design problems that may arise during the acceptance and warranty periods. SEC. 14 DOCUMENTS AND TRAINING A. The Contractor shall supply training documents to Town of Avon in Contractor’s customary format and as reasonably determined by Contractor. The Contractor agrees to provide driver and maintenance training. In connection with such training, Town of Avon agrees to provide Contractor reasonable access to Town of Avon’s data and information, and Town of Avon shall have access to its own custom web portal, which contains the latest versions of all applicable manuals, videos, guidelines and other training materials. Contractor recommends that Town of Avon obtain high voltage safety training for its employees and that Town of Avon develops its own high voltage safety rules and guidelines; however, any such training, rules and guidelines will not be provided by the Contractor. B. Successful acceptance and deployment of new technology requires a significant effort on the part of Town of Avon as well as Contractor. Accordingly, Town of Avon agrees to follow and adhere to the “launch schedule” as agreed to between Contractor and Town of Avon. C. Contractor shall own all data produced by the Buses/vehicle and the Charging Station/charging system. Contractor reserves the right to present data to third parties without the prior consent of Town of Avon. Contractor agrees to provide any data that may be reasonably required to satisfy the requirements of any grants or other sources of funding used to purchase the Buses by Town of Avon at an interval of no more frequently than once per month and for a DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 9 total duration of no more than twelve (12) months. D. Town of Avon agrees that it shall ensure that any drivers assigned to operate the Bus shall be sufficiently trained. New drivers should receive sufficient training on the Bus and its docking and charging procedures including at least four hours of shadow service and five successful docks prior to being in revenue service. Contractor recommends that new drivers get assigned to the Buses no more frequently than every 12 months. E. Labor Rates for any work chargeable to Town of Avon are based on the hourly wage rate of a Senior Field Service Technician, plus 62% fringes plus 125% overhead. The wage rate is subject to adjustment once each year. SEC. 15 TOOLS AND EQUIPMENT The Contractor shall provide Town of Avon with a comprehensive list of all of the tools, equipment, software, specialized diagnostic tools, and/or related equipment for the service, repair and overhaul of the complete Bus, all major sub-systems of the Bus, and the Charging Stations. Proprietary software and computer hardware necessary to repair, service and/or diagnose all systems of the Bus and the Charging Stations shall be made reasonably available to Town of Avon when required to repair the Bus, its systems, or the Charging Stations at no cost to Town of Avon per Section 5 above. SEC. 16 PARTS AVAILABILITY GUARANTEE A. Contractor hereby agrees to make available the spare parts and equipment as set forth in the Option Tracker. B. Proterra will not stock any service parts if those parts were ordered specifically for an individual customer configuration (i.e., not base vehicle parts). This includes, but is not limited to, windows, seats, flooring, ITS/CAD/AVL equipment, and any other specially requested or required parts. Proterra will endeavor to procure special orders parts as request but cannot provide or commit to availability or lead-time. C. Unless otherwise agreed, all units and components procured under this Contract, whether provided by suppliers or manufactured by the Contractor, shall be duplicates in design, manufacture, and installation to assure interchangeability among Buses in this procurement. This interchangeability shall extend to the individual components as well as to their locations in the Buses. D. EXCEPT FOR ANY SUCH WARRANTIES THAT CONTRACTOR MAY EXPRESSLY AND SPECIFICALLY PROVIDE, ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INFRINGEMENT, OR ANY WARRANTIES BASED UPON SAMPLES, MODELS, OR SPECIFICATIONS, ARE EXPRESSLY DISCLAIMED. SEC. 17 MATERIALS/ACCESSORIES RESPONSIBILITIES The Contractor shall be responsible for all materials and workmanship in the construction of the DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 10 Buses and Charging Stations and all accessories used, whether the same are manufactured by the Contractor or purchased from supplier and as subject to the Warr anty provisions set forth in Attachment 2 to this Agreement. This provision excludes fare boxes, radios, and any equipment supplied by Town of Avon, except insofar as such equipment is damaged by the failure of a part or component for which the Contractor is responsible, or except insofar as the damage to such equipment is solely caused by the Contractor during the manufacture of the Buses and/or Charging Stations. SEC. 18 REPRESENTATIVES AND NOTICE A. Town of Avon’s Representative. Town of Avon hereby designates Eva Wilson, to act as its representative for the performance of this Agreement (“Town of Avon’s Representative”). Town of Avon’s Representative shall have the power to act on behalf of Town of Avon for all purposes under this Agreement. B. Contractor’s Representative. Contractor hereby designates Nishant Dixit as its Project Manager, to act as its representative to oversee the performance of this Agreement (“Contractor’s Representative”). Contractor’s Representative shall have full authority to represent and act on behalf of the Contractor for all purposes under this Agreement. Such designation will be provided in writing to Town of Avon’s representative. C. Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: Contractor: Nishant Dixit Customer Program Manager Proterra Inc. 383 Cheryl Lane, City of Industry, CA 91789 Phone (323) 360-1499 with a copy to: Jeff Mitchell / LEGAL Associate General Counsel Proterra Inc. 1815 Rollins Rd. Burlingame, CA 94010 legal@proterra.com Phone (864) 438-0000 Town of Avon: Paul Wisor, Town Attorney pwisor@garfieldhecht.com Any notices required by this Agreement shall be deemed received on (a) the day of delivery if delivered by hand (including overnight courier service) during receiving Party's regular business hours or by facsimile before or during receiving Party's regular business hours; or (b) on the third business day following deposit in the United States mail, postage prepaid, to the addresses set DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 11 forth below, or to such other addresses as the Parties may, from time to time, designate in writing pursuant to the provisions of this Section. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. SEC. 19 ACCOUNTING RECORDS AND AUDIT ADJUSTMENTS The Contractor shall maintain accurate records with respect to all costs and expenses incurred under this Agreement. The Contractor agrees that the United States Department of Transportation and Town of Avon, or any of their duly authorized representatives, shall, for the purpose of audit and examination, and to the extent required by law, be permitted to inspect all work, materials, payrolls, and other data and records, and to audit, during normal business hours with reasonable advanced notice, the books, records, and accounts relating to the performance of the Contract; provided that Contractor shall have the right to maintain and protect the confidentiality of any information so provided. Further, Contractor agrees to maintain all required records for at least three (3) years after Town of Avon has made final payment and all other pending matters are closed. SEC. 20 CHANGE ORDERS AND SPECIFICATION REVISIONS Unless there are changes mandated by applicable law, the Parties recognize that no changes to the Bus and/or Charging Station to be delivered by the Contractor to Town of Avon can be made without a written Change Order executed by Town of Avon’s Representative and accepted by Contractor’s Representative. SEC. 21 LATE CHANGES In order to ensure the highest quality products for our customers, it is imperative that a strict change management process be followed. This includes pre-defined timelines that govern the reasonable time needed to properly design, validate, procure and deploy engineering changes. This Agreement represents and contains specific configurations and specifications agreed upon between Proterra and Town of Avon. Notwithstanding anything to the contrary contained herein, for any and all proposed changes, no matter how material or immaterial, requested by Town of Avon after the date hereof that are outside of or different from the configurations and/or specifications agreed upon between the parties hereto as of the date hereof, Proterra reserves and shall have the right to, in its sole and absolute discretion, pursue any of the following: Propose price increases for the changed configurations and/or specifications, which price increases are subject to Town of Avon’s prior approval, which approval shall not be unreasonably withheld or delayed; A) Propose an alternative build slot and/or delays in delivery/shipment to account for delays resulting from the requested changed configurations and/or specifications; B) Reject some or all of the requested changes to, among other things, preserve a build slot(s) and delivery timeframe; and/or C) Any other solution proposed by Proterra, subject to Town of Avon’s prior approval, which approval shall not be unreasonably withheld or delayed. D) To provide our customers with as much flexibility as possible while maintaining our strict design quality requirements, Proterra shall follow its late change process. E) ANY CHANGE REQUEST, NO MATTER HOW MATERIAL OR IMMATERIAL, WITHIN TWENTY-EIGHT (28) WEEKS BEFORE START OF PRODUCTION (STATION #1) WILL DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 12 REQUIRE COO APPROVAL AND, IF APPROVED, WILL LIKELY IMPACT COST AND SCHEDULE. Notwithstanding anything to the contrary contained herein, Town of Avon acknowledges and agrees that any of the above rights, if/when exercised by Proterra (including any delivery/shipment delays and/or alternative build slots and including any outright rejection of any requested changes) shall not (1) be a breach of this Agreement, (2) affect or toll any warranties provided by Proterra, (3) result in or cause any penalties, damages (including liquidated damages), claims or liabilities to Proterra, (4) give Town of Avon any termination right, (5) affect or change payment terms (including any progress payments) and/or (6) give Town of Avon the right to reject any shipment or fail any inspection. In addition, notwithstanding anything to the contrary contained herein, Proterra may, in its sole and absolute discretion, utilize subcontractors to implement any requested changes that Proterra may agree to. SEC. 22 CUSTOMER SUPPLIED EQUIPMENT Contractor will not accept Town of Avon supplied equipment for installation on the Bus and Charging Stations. All equipment permanently installed on the Buses and Charging Stations must be procured directly by the Contractor, except as follows: A) Templates, such as farebox mounting plates, used only for initial design and fitment or function validation and not to be permanently installed. B) Test Equipment to be used for functional validation of installed systems and not to be permanently installed. SEC. 23 CUSTOMER REQUESTED EQUIPMENT – VENDOR CHANGES Contractor is responsible for all equipment designed and installed on Buses and Charging Systems at completion of manufacture. This includes systems specified directly by Town of Avon hereunder. Changes in design or function of Customer-specified systems, such as ITS, CAD/AVL, radio, etc.) are beyond Contractor’s control and may result in subsequent installation or functional issues beyond the Contractor’s control. Any such changes will therefore be subject to any of the potential remediation actions as indication in Section 21 above. SEC. 24 DISPUTES This Agreement shall be governed by and interpreted according to the law of the State of Colorado. Venue for any action arising under this Agreement shall be in the appropriate court for Eagle County, Colorado. To reduce the cost of dispute resolution and to expedite the resolution of disputes under this Agreement, the Parties hereby waive any and all right either may have to request a jury trial in any civil action relating primarily to the enforcement of this Agreement. The Parties agree that the rule that ambiguities in a contract are to be construed against the drafting party shall not apply to the interpretation of this Agreement. If there is any conflict between the language of this Agreement and any exhibit or attachment, the language of this Agreement shall govern. SEC. 25 MINOR CHANGES Town of Avon acknowledges and agrees that there could be minor changes and/or minor delivery DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 13 and timeline revisions. Accordingly, Town of Avon and Proterra agree to reasonably cooperate in good faith regarding any such minor changes and slight timeline revisions. SEC. 26 TERMINATION A. Termination for Convenience a. Action by Town of Avon The performance of work under the Contract may be terminated by Town of Avon in accordance with this Section in whole, or from time to time in part, with at least sixty (60) days prior written notice to Contractor. Any such termination shall be effected by delivery to the Contractor of a notice of termination specifying the extent to which performance of the professional services under the Contract is terminated and the date upon which such termination becomes effective; provided that such termination effective date shall be no earlier than sixty (60) days after receipt of such termination notice by Contractor. b. Responsibility of Contractor Upon receipt of a notice of termination, and except as otherwise directed by Town of Avon, the Contractor shall, to the extent possible, (1) stop work under the Contract on the date and to the extent specified in the notice of termination; (2) place no further orders or subcontracts for materials, services, or facilities, except as may be necessary for completion of such portion of the work under the Contract as is not terminated; (3) to the extent possible, terminate all orders and subcontracts to the extent that they relate to the performance of work terminated by the notice of termination; (4) transfer title to Town of Avon and deliver in the manner, at the times, and to the extent, if any, directed by Town of Avon, non-proprietary supplies, equipment, and other material produced as a part of, or acquired in connection with the performance of, the work terminated, and any information and other property which, if the Contract had been completed, would have been required to be furnished to Town of Avon provided that Town of Avon reimburses Contractor for all related costs and expenses; and (5) complete any such part of the work as shall not have been terminated by the notice of termination. Payments by Town of Avon to the Contractor shall be made by the effective date of termination, including with respect to the portion of any completed work and related costs and expenses so terminated. Except as otherwise provided, settlement of claims by the Contractor under this termination Section shall be in accordance with the provisions set forth in 48 C.F.R. Part 49, as amended from time to time. B. Termination by Mutual Agreement. The Contract may be terminated by mutual agreement of the Parties. Such termination shall be effective in accordance with a written agreement by the Parties. Any other act of termination shall be in accordance with the termination by convenience or default pro visions DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 14 contained in Sections 24.A. and C., respectively. C. Termination for Default a. Action by Town of Avon Subject to the provisions of subparagraph c. below, Town of Avon may terminate the whole or any part of the Contract in any one of the following circumstances: (1) If the Contractor fails to provide any material services required under this Contract; or (2) If the Contractor fails to perform any of the material provisions of the Contract in accordance in all material respects with its terms. b. Contractor Liability In the event that Town of Avon terminates the Contract in whole or in part as provided in this Subsection (C), Town of Avon may procure, upon such terms and in such manner as Town of Avon may deem appropriate and at Town of Avon’s cost and expense, supplies or services similar to those so terminated. The Contractor shall continue the performance of the Contract to the extent not terminated under the provisions of this Section. c. Cure by Contractor If Town of Avon determines that an event of default under this Section 24 has occurred, it shall immediately notify the Contractor in writing and provide the Contractor with thirty (30) days in which to cure such default; provided that if it would reasonably take longer to cure such default, Contractor shall commence the cure during such thirty (30) day period and take commercially reasonable efforts to cure as soon as reasonably practicable thereafter. If the Contractor fails to cure within such time frame, Town of Avon may declare that Contractor to be in default and terminate the Contract in whole or in part. d. Claims Except as otherwise provided, settlement of claims by the Contractor under this Section shall be in accordance to the provisions set forth in 48 C.F.R. Part 49, as amended from time to time. e. Default by Town of Avon Except to the extent solely caused by a default of Contractor, in the event that Town of Avon breaches this Contract, and such breach, if and only if curable, is not cured within thirty (30) days following written notice from Contractor (or such longer period as is reasonably necessary to cure if such cure may not reasonably be effected in such thirty (30) day period, DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 15 provided Town of Avon diligently prosecutes such cure to completion at all times), Contractor shall have the right to terminate this Contract by written notice delivered by Contractor to Town of Avon at which time Town of Avon shall reimburse Contractor for all reasonable costs and expenses incurred by Contractor in connection with this Contract, including, at Contractor’s option, payment of the difference between the purchase price under this Contract and the actual price paid to Contractor to sell the Buses and Charging Station(s) to another customer. For the avoidance of doubt, failure to make any payment by Town of Avon is a breach that would require cure within thirty (30) days. SEC. 27 RESPONSIBILITIES OF CONTRACTOR AND Town of Avon A. Compliance with Law. The Contractor and Town of Avon shall give all notices and comply with all Federal, state, and local laws, ordinances, rules, regulations, and orders of any public authority bearing on the performance of the Contract, including, but not limited to, the laws referred to in these provisions of the Contract. If the Contract documents are at variance therewith in any respect, any necessary changes shall be incorporated by appropriate modification. Upon reasonable request by the other Party, the requested Party shall furnish the other Party with certificates of compliance with all such laws, orders, and regulations. B. Independent Contractor. All services shall be performed by Contractor or by a third party under Contractor’s supervision. Town of Avon retains Contractor on an independent contractor basis and not as an employee. Contractor retains the right to perform similar or different services for, and sell similar products to, others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Contractor shall also not be employees of Town of Avon and shall be under Contractor's direction. SEC. 28 FORCE MAJEURE The Contractor shall not be liable for any failure to perform if that failure to perform was due to causes beyond the control of the Contractor and Contractor made reasonable efforts to avoid such non-performance. Examples of such causes include, without limitation acts of God, civil disturbances, unanticipated work stoppages, strikes, lockouts, labor disputes, national emergencies, acts of government, epidemics, pandemics, acts of public enemy, storms, casualties, fires, riots, hurricanes, tornadoes, wars, floods or other cause of similar or dissimilar nature beyond Contractor’s control. SEC. 29 CONFLICT OF INTEREST No officer, member or employee of Town of Avon and no members of its governing body, and no other public official of the governing body of the locality in which the project is situated and being carried out who exercise any functions or responsibility in the review and approval of the undertaking or carrying out of this project, shall participate in any decision relating to this Agreement which affects his or her personal interest or have any personal or pecuniary interest, direct or indirect, in this Agreement or the proceeds thereof. DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 16 SEC. 30 INDEMNIFICATION, INSURANCE & LIABILITY A. Indemnification The Contractor shall indemnify and save harmless Town of Avon, its officials and employees, from all losses, damages, costs, expenses, liability, claims, actions, and judgments of any kind brought or asserted against, or incurred by, Town of Avon, to the extent that the same arise out of or are caused by any willful act or omission of the Contractor, or by the employees, officers or directors of the Contractor, but not to the extent arising out of or are caused by any act or omission of Town of Avon or its employees, officers, directors, agents or representatives. Town of Avon agrees that it shall be responsible for the negligent, willful and wrongful acts or omissions of its employees, officers, directors, agents and representatives. In addition, Town of Avon agrees that it shall be responsible for any use of the goods either (a) in combination with apparatus, devices or other products/goods not supplied by Contractor, or (b) in a manner for which the goods were neither designated nor contemplated. B. Insurance. Prior to commencing work, the Contractor shall procure and maintain at Contractor’s own cost and expense for the duration of the Agreement, the following insurance against claims for injuries to person(s) or damages to property which may arise from, or in connection with, the performance of the work or services hereunder by the Contractor or its employees. Contractor shall maintain limits no less than: (1) Commercial General/Umbrella Liability Insurance - $1,000,000 limit per occurrence for property damage and bodily injury. The service provider should indicate in its proposal whether the coverage is provided on a claims-made or on an occurrence basis. (2) Business Automobile/Umbrella Liability Insurance - $1,000,000 limit per accident for property damage and personal injury. (3) Workers’ Compensation and Employers’/Umbrella Liability Insurance -- Workers’ Compensation coverage with benefits and monetary limits as set forth in South Carolina law. This policy shall include Employers’/Umbrella Liability coverage for $1,000,000 per accident. (4) Other Insurance Provisions: a. Commercial General Liability and Automobile Liability Coverage Town of Avon shall be covered as additional insured’s. b. Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by Town of Avon. At the option of Town of Avon, the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to Town of Avon. c. Acceptability of Insurers Insurance is to be placed with South Carolina admitted insurers rated B+X or better by A.M. Best's rating service. DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 17 d. Verification of Coverage Upon written request from Town of Avon, Contractor shall furnish Town of Avon with certificates of insurance and with original endorsements affecting coverage required by this clause. C. Liability. IN NO EVENT WILL CONTRACTOR BE LIABLE TO TOWN OF AVON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR FOR LOSS OF PROFITS OR REVENUE, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE. CONTRACTOR’S CUMULATIVE LIABILITY UNDER THIS CONTRACT WILL NOT EXCEED THE LESSER OF $2 MILLION OR THE AGGREGATE AMOUNT PAID BY TOWN OF AVON PURSUANT TO THIS CONTRACT DURING THE SIX (6) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM OR LIABILITY AT ISSUE. SEC. 31 INTERPRETATION, JURISDICTION, AND VENUE This Contract shall be subject to, governed by, and construed and interpreted solely according to the laws of the State of Colorado. The Contractor and Town of Avon hereby consent and submit to the jurisdiction of the appropriate courts of Colorado or of the United States having jurisdiction in Colorado for adjudication of any suit or cause of action arising under or in connection with the Contract documents, or the performance of this Contract, and agree that any such suit or cause of action may be brought in any such court. SEC. 32 NO FEDERAL GOVERNMENT OBLIGATIONS Although this Contract is funded with Federal funds, absent the Federal Government’s express written consent, the Federal Government shall not be subject to any obligations or liabilities to the Contractor, or any other person other than Town of Avon in connection with the performance of this Contract. SEC. 33 INTERESTS OF MEMBERS OF, OR DELEGATES TO, CONGRESS In accordance with 18 U.S.C. Section 431, no member of, or delegate to, the Congress of the United States shall be admitted to any share or part of the Contract or to any benefit arising therefrom. SEC. 34 FALSE OR FRAUDULENT STATEMENTS AND CLAIMS By executing this Contract, the Contractor acknowledges that if it makes a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose penalties under the program Fraud Civil Remedies Act of 1986. SEC. 35 DEBARMENT/SUSPENSION STATUS The Contractor shall provide Town of Avon with a certification addressing its debarment and suspension status, if any, and that of its principals. The Contractor shall promptly inform Town of DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 18 Avon of any change in the suspension or debarment status of the Contractor or its principals during the term of the Contract. SEC. 36 AMERICANS WITH DISABILITIES ACT The Contractor shall ensure that the Buses manufactured and delivered under the terms of this Contract meet, in all material respects, the applicable Accessibility Guidelines for Transportation Vehicles set out in 49 C.F.R. Part 38. SEC. 37 BUY AMERICA The Contractor shall comply with the applicable Buy America requirements set forth in 49 U.S.C. 5323(j) and the applicable regulations in 49 C.F.R. Part 661, as amended. SEC. 38 CARGO PREFERENCE The Contractor agrees: A. Whenever shipping any equipment, materials or commodities pursuant to this Contract, to utilize privately owned United States-flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, but only if and to the extent such vessels are available at fair and reasonable rates for United States-flag commercial vessels. B. To furnish within twenty (20) business days following the date of loading for shipments originating within the United States, or within forty (40) business days following the date of loading for shipment originating outside the United States, a legible copy of a rated, “on-board” commercial ocean bill-of-lading in English for each shipment of cargo described in paragraph A. above to Town of Avon (through the prime contractor in the case of subcontractor bills -of-lading) and to the Division of National Cargo, Office of Market Development, Maritime Administration, 400 Seventh Street, S.W., Washington, D.C. 20590, marked with appropriate identification of the project. SEC. 39 FLY AMERICA The Contractor agrees that if this Contract may involve the international transportation of goods, equipment, or personnel by air, the Contractor will use U.S.-flag air carriers, only if and to the extent service by these carriers is available at fair and reasonable rates. (49 U.S.C. 40018 and 4 C.F.R. Part 52). SEC. 40 RECYCLED PRODUCTS The Contractor agrees to comply with all the requirements of Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 C.F.R. Part 247, and Executive Order 12873, as they apply to the procurement of the items designated in Subpart B of 40 C.F.R. Part 247. SEC. 41 ENVIRONMENTAL REQUIREMENTS DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 19 The Contractor agrees to comply in all material respects with all Federal, State and local environmental and resource conservation requirements that apply to the construction activities under the terms of this Contract. The Contractor shall report any violation of standards, orders or regulations issued under the Clean Air Act (42 U.S.C. 7401 et seq.) or the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) resulting from any activity of the Contractor in connection with the performance of the Contract to FTA and to the appropriate U.S. EPA Regional Office. The Contractor shall be responsible for the disposal of hazardous materials, in accordance with applicable Federal, state and local laws and regulations. SEC. 42 ENERGY EFFICIENCY The Contractor shall recognize the mandatory standards and policies relating to energy efficiency that are contained in the State Energy Conservation Plan issued in compliance with the Energy Policy and Conservation Act (42 U.S.C. 6321 et seq.). SEC. 43 NONDISCRIMINATION In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disability. SEC. 44 EQUAL EMPLOYMENT OPPORTUNITY The following equal employment opportunity requirements apply to the Contract: A. Race, Color, Creed, National Origin, Sex. In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et seq., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of the Project. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. 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. B. Age. In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 623 and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. C. Disabilities. In accordance with section 102 of the Americans with Disabilities Act, as DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 20 amended, 42 U.S.C. § 12112, the Contractor agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. SEC. 45 DISADVANTAGED BUSINESS ENTERPRISE The Contractor agrees to comply with the Disadvantaged Business Enterprise requirements set forth in 49 C.F.R. 26.49. SEC. 46 PRE-AWARD AND POST-DELIVERY AUDIT REQUIREMENTS The Contractor agrees to comply with 49 U.S.C. § 5323(l) and FTA's implementing regulation at 49 C.F.R. Part 663 and to submit the following certifications: A. The Contractor shall complete and submit a declaration certifying either compliance or noncompliance with Buy America. If the Contractor certifies compliance with Buy America, it shall submit documentation which lists: 1) component and subcomponent parts of the rolling stock to be purchased, identified by manufacturer of the parts, their country of origin and costs on a percentage basis; and 2) the location of the final assembly point for the rolling stock, including a description of the activities that will take place at the final assembly point and the cost of final assembly on a percentage basis. B. The Contractor shall submit evidence that it will be capable of meeting the specifications. C. The Contractor shall submit: 1) manufacturer's FMVSS self-certification sticker information that the vehicle complies with relevant FMVSS; or 2) manufacturer's certified statement that the contracted Buses will not be subject to FMVSS regulations. SEC. 47 BUS TESTING The Contractor agrees to comply with 49 U.S.C. § 5323(c) and FTA's implementing regulation at 49 CFR Part 665 and shall perform the following if applicable: A. If the bus being procured under this Contract is a new bus model or a bus produced with a major change in components or configuration, the Contractor shall provide a copy of the final test report to Town of Avon prior to Town of Avon’s final acceptance of the first bus. B. If the Contractor releases a report under paragraph A above, it shall provide notice to the operator of the testing facility that the report is available to the public. C. If the Contractor represents that the vehicle was previously tested, the vehicle being sold should have substantially the same configuration and major components as the vehicle in the test report, which must be provided to Town of Avon prior to Town of Avon's final acceptance of the first vehicle. If the configuration or components are not identical, the Contractor shall provide a description of the change and the Contractor's basis for concluding that it is not a major change requiring additional testing. DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 21 D. If the Contractor represents that the vehicle is "grandfathered" (has been used in mass transit service in the United States before October 1, 1988, and is currently being produced without a major change in configuration or components), the Contractor shall provide the name and address of the recipient of such a vehicle and the details of that vehicle's configuration and major components. SEC. 48 FEDERAL MOTOR VEHICLE SAFETY STANDARDS The Contractor shall comply with the Federal Motor Vehicle Safety Standards (FMVSS) and Regulations (49 C.F.R. Part 571) issued by the National Highway Traffic Safety Administration, which require motor vehicle manufacturers to conform to and certify compliance with the FMVSS requirements. These Regulations establish crashworthiness and crash avoidance standards for various types of vehicles, including buses. SEC. 49 INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION TERMS AND CONDITIONS A. The Contractor recognizes that this Contract includes, in part, certain terms and conditions required by the Federal Transit Administration, whether or not expressly set forth in this Contract. All contractual provisions required by the Federal Transit Administration, as set forth in FTA Circular 4220.1 (current version as of the Effective Date of this Contract) are hereby incorporated by reference. If any of the provisions of this Contract are contrary to the Federal Transit Administration’s mandated terms and conditions, such Federal Transit Administration’s terms and conditions shall be deemed to control. B. The Contractor shall not knowingly or willingly perform any act, fail to perform any act, or refuse to comply with any requests of Town of Avon which would cause Town of Avon to be in violation of the Federal Transit Administration terms and conditions. SEC. 50 TAX AND CARBON CREDITS A. In the event that the Contractor is entitled to Federal or State tax credits, rebates or refunds conditioned on the sale of battery electric buses or charging stations to a public agency, the Contractor shall not be required to rebate such amounts to Town of Avon when the Contractor takes the credit and/or realizes the refund or rebate. B. In the event that the sale/purchase of a Bus or Charging Station may generate credits or other benefits associated with reductions in carbon emissions, exhaust or emissions banking or other credits, refunds, rebates or incentives of any kind as a result of environmental attributes associated with the deployment of battery electric buses or use of charging stations, such incentives, refunds, rebates or credits shall be owned and attributable solely by the Contractor. SEC. 51 TERMINATION DUE TO LACK OF FUNDS If any of the material amounts due under this Contract constitute federal funds (such as formula funds or grants managed or originated by the U.S. Department of Transportation) and such funds are reduced or eliminated at the sole discretion of the governing body, this Agreement shall terminate unless both Parties agree to modification of the obligations under this Agreement. A reduction in funding cannot reduce monies due and owing to the Contractor on or before the DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 22 effective date of the termination of the Agreement. SEC. 52 ASSIGNMENT OR TRANSFER Except for the rights of money due to Contractor pursuant to this Contract, Contractor shall not assign, hypothecate, or transfer this Agreement or any interest herein to any other party without the prior written consent of Town of Avon, which consent shall not be unreasonably withheld or delayed. Such consent of Town of Avon shall not be required in the event of any transfer or assignment in connection with any merger, acquisition (whether stock or asset) or other change of control involving Contractor. Town of Avon shall not assign, hypothecate, or transfer this Agreement or any interest herein to any other party without the prior written consent of Contractor, which consent shall not be unreasonably withheld or delayed. Any assignment, transfer or hypothecation other than in accordance with the terms of this Section 50 shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. SEC. 53 INTELLECTUAL PROPERTY & CONFIDENTIAL INFORMATION A. Intellectual Property. Town of Avon and Contractor acknowledge that Town of Avon is a transit agency and not a manufacturer of buses or charging stations and therefore has no interest in ownership of any rights in, to, or arising out of: (i) any patents; (ii) inventions, discoveries (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology, technical data and other intellectual property; (iii) copyrights, copyright registrations, mask works, mask work registrations, and applications therefor in the United States, and anywhere in the world, and all other rights corresponding thereto throughout the world; and (iv) any other proprietary rights ((i) through (iv) hereof collectively, the “Intellectual Property”) in or to the technology associated with the charging stations and vehicles/buses that are the subject of this Agreement. As such, Town of Avon and Contractor agree that Contractor shall own any Intellectual Property developed in connection with the buses and charging stations purchased through this Agreement, including, without limitation, any performance and other Bus and Charging Station data developed and any alterations or modifications to the charging stations or buses purchased under this Agreement whether made or developed by Town of Avon or any other party (the “Developed Technology”). Town of Avon hereby assigns and agrees to assign to Contractor, all right, title and interest in the Developed Technology (including all intellectual property rights therein) and the Intellectual Property. Town of Avon shall, to the fullest extent, protect proprietary information, trade secrets and confidential commercial and financial information provided by the Contractor. Town of Avon will provide immediate notice in writing to the Contractor of the existence of any claim that the goods furnished hereunder violate or infringe upon another third party’s rights, and Town of Avon shall reasonably cooperate with Contractor in connection with any such claim. Town of Avon also agrees that it shall not, and shall not allow any third party to, directly or indirectly reverse engineer the Bus or Charging Station or otherwise obtain, share or use any confidential information of Contractor, including, without limitation, any control or other software of Contractor provided with either the Bus or Charging Station. B. Confidential Information. During the performance under this Contract, it may be necessary for either party (the “Discloser”) to make confidential information available to the other party (the “Recipient”). Subject to the requirements of the Colorado Open Records Act, DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 23 the Recipient agrees to use all such information solely for the performance under this Contract and to hold all such information in confidence and not to disclose the same to any third party without the prior written consent of the Discloser. Likewise, the Recipient agrees that information developed in connection with the performance of this Contract shall be used solely for the performance under this Contract, and shall be held in confidence not disclosed to any third party without the prior written consent of the Discloser. Town of Avon shall employ sound business practices no less diligent than those used for Town of Avon’s own confidential information to protect the confidence of all licensed technology, software, documentation, drawings, schematics, manuals, data and other information and material provided by the Contractor pursuant to this Contract. C. Survival. This Section shall survive termination or expiration of this Contract. SEC. 54 MARKETING Contractor and Town of Avon shall work together to promote the unique nature of the deployment of the Buses and Charging Stations under this Contract. However, the Parties shall mutually agree to the content of any press release related to the substance, performance or existence of this Contract and the purchase or use of Buses and Charging Stations hereunder. Town of Avon hereby gives Contractor, and Contractor gives Town of Avon, the right to use images of the Buses and Charging Stations under this Contract in any manner desired by the Parties, subject to each party’s prior written consent, not to be unreasonably withheld. SEC. 55 COMPLIANCE WITH FEDERAL LOBBYING POLICY Customers, including Town of Avon, who apply or bid for an award of $100,000 or more shall file the certification required by 49 CFR Part 20, “New Restrictions on Lobbying.” 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, an 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 USC 1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non-federal funds with respect to that federal Contract, grant or award covered by 31 USC 1352. Such disclosures are forwarded from tier-to-tier up to the recipient. SEC. 56 WHISTLEBLOWER PROTECTION Section 1553 of Division A, Title XV of the American Recovery and Reinvestment Act of 2009, P.L. 111-5, provides protections for certain individuals who make specified disclosures relating to Recovery Act funds. A. An employee of any non-Federal employer receiving covered funds may not be discharged, demoted or otherwise discriminated against as a reprisal for disclosing, including a disclosure made in the ordinary course of an employee’s duties, to the Board, an inspector general, the Comptroller General, a member of Congress, a state or federal regulatory or law enforcement agency, a person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover or terminate misconduct), DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 24 a court or grand jury, the head of a Federal agency or his/her/their representatives, information that the employee reasonably believes is evidence of: 1) gross mismanagement of an agency contract or grant relating to covered funds; 2) a gross waste of covered funds; 3) a substantial and specific danger to public health or safety related to the implementation or use of covered funds; 4) an abuse of authority related to the implementation or use of covered funds; or 5) a violation of law, rule or regulation related to an agency contract (including the competition for or negotiation of a contract) or grant, awarded or issued relating to covered funds. B. To be protected, the disclosure must be made by the employee to the Recovery Accountability and Transparency Board, an Inspector General, the Comptroller General, a member of Congress, a state or federal regulatory or law enforcement agency, a person with supervisory authority over the employee, a court or grand jury, or the head of a federal agency or his/her/their representatives. SEC. 57 IRON, STEEL AND MANUFACTURING A. Required Use of American Iron, Steel, and Manufactured Goods--Section 1605 of the American Recovery and Reinvestment Act of 2009. 1) This award term and condition implements Section 1605 of the American Recovery and Reinvestment Act of 2009 (Recovery Act) (Pub. L. 111-5), by requiring that all iron, steel and manufactured goods used in the project are produced in the United States except as provided in paragraph 2 CFR 176.140 (b)(3) and 2 CFR 176.140 (b)(4). This requirement does not apply to the material listed by the Federal Government under 2 CFR 176.140(b)(2). 2) A prospective applicant requesting a determination regarding the inapplicability of section 1605 of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act) should submit the request to the U.S. Federal Transit Administrator in time to allow a determination before submission of applications or proposals. The prospective applicant shall include the information and applicable supporting data required by paragraphs 2 CFR 176.140(c) and (d) in the request. If an applicant has not requested a determination regarding the inapplicability of 1605 of the Recovery Act before submitting its application or proposal, or has not received a response to a previous request, the applicant shall include the information and supporting data in the application or proposal. SEC. 58 CLEAN AIR AND CLEAN WATER The Contractor shall comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq. The Contractor shall comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq. The Contractor shall report each violation to Town of Avon and understands and agrees that Town of Avon will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 25 SEC. 59 FEDERAL CHANGES Contractor shall at all times comply with all applicable FTA regulations, policies, procedures, and directives. SEC. 60 PRIVACY To the extent that Contractor administers any system of records on behalf of the Federal Government, Contractor agrees to comply with the information restrictions and other applicable requirements of the Privacy Act of 1974, as amended, 5 U.S.C. Sect. 552, (the Privacy Act). Contractor shall obtain the express consent of the Department and the Federal Government before the Contractor operates a system of records on behalf of the Federal Government. SEC. 61 GENERAL PROVISIONS A. Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Unless and except otherwise set forth herein, any term referencing time, days or period for performance shall be deemed calendar days and not business days. All references to Town of Avon include its elected officials, officers, agents, volunteers and independent contractors who serve as Town of Avon officers, officials, or staff except as otherwise specified in this Agreement. The captions of the various sections and paragraphs herein are for convenience and ease of reference only, and do not define, limit, augment or describe the scope, content or intent of this Agreement. B. Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. C. Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise. The failure of Town of Avon or the Contractor to enforce one or more of the terms or conditions of this Contract or to exercise any of its rights or privileges, or the waiver by one Party of any breach of such terms or conditions, shall not be construed as thereafter waiving any such terms, conditions, rights, or privileges, and the same shall continue and remain in force and effect as if no waiver had occurred. D. No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. E. Cooperation: Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. F. Invalidity; Severability. If any portion of this Agreement is declared as invalid, illegal or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 26 G. Authority to Enter Agreement. Contractor has all requisite power and authority to conduct its business and to execute, deliver and perform this Agreement. Town of Avon has all requisite power and authority to conduct its business and to execute, deliver and perform this Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right and authority to make this Agreement and bind each respective Party. H. Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by the Parties which expressly refers to this Agreement. I. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by facsimile or other electronic means shall have the same force and effect as the delivery of an original executed counterpart of this Agreement. J. Survival. Termination will not affect accrued rights, including payment obligations, indemnities, existing commitments or any contractual provision intended to survive termination and will be without penalty or other additional payment. K. Rules of Construction. The singular shall include the plural and vice versa, and any gender shall include any other gender as the text shall indicate. All references to “including” shall mean “including, without limitation.” L. Municipal Addendum. The parties acknowledge a Municipal Addendum is attached here to as Exhibit A. In the event the terms and conditions of the Municipal Addendum conflict in whole or in part with the terms and conditions of the Agreement, the terms and conditions of the Municipal Addendum shall control. [Signatures continued on next page] DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 27 IN WITNESS WHEREOF, the Parties hereto have caused these presents to be duly executed with all the formalities required by law. Proterra Inc Attest: ________________________ By: __________________________ Name and Address: Printed Name: Title: Dated: Town of Avon Attest: By: Name and Address: Printed Name: Eric Heil Title: Town Manager Dated: DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB John Walsh SVP 6/17/2021 Eva Brown Contract Administrator Proterra Inc City of Industry ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 28 ADDENDUM A: MUNICIPAL PROVISIONS. A.1. Addendum A Controls: In the event the terms and conditions of this Addendum A conflict in whole or in part with the terms and conditions of the Agreement, the terms and conditions of this Addendum A shall control. A.2. No Waiver of Governmental Immunity: Nothing in this Agreement shall be construed to waive, limit, or otherwise modify any governmental immunity that may be available by law to Avon, its officials, employees, contractors, or agents, or any other person acting on behalf of Avon and, in particular, governmental immunity afforded or available pursuant to the Colorado Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes. A.3. Affirmative Action: Producer will not discriminate against any employee or sub- contractor for employment because of race, color, religion, sex or national origin. Producer will take affirmative action to ensure applicants are employed, and 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. A.4. Article X, Section 20/TABOR: The Parties understand and acknowledge that Avon is subject to Article X, § 20 of the Colorado Constitution (“TABOR”). The Parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, therefore, notwithstanding anything in this Agreement to the contrary, all payment obligations of Avon are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the Avon’s current fiscal period ending upon the next succeeding December 31. Financial obligations of Avon payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of Town of Avon, and other applicable law. Upon the failure to appropriate such funds, this Agreement shall be terminated. A.5. Employment of or Contracts with Illegal Aliens: Producer shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. Producer shall not contract with a subcontractor that fails to certify that the subcontractor does not knowingly employ or contract with any illegal aliens. By entering into this Agreement, Producer certifies as of the date of this Agreement it does not knowingly employ or contract with an DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 29 illegal alien who will perform work under the public contract for services and that the contractor will participate in the e-verify program or department program in order to confirm the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services. The Producer is prohibited from using either the e-verify program or the department program procedures to undertake pre- employment screening of job applicants while this Agreement is being performed. If the Producer obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, Producer shall be required to notify the subcontractor and Avon within three (3) days that Producer has actual knowledge that a subcontractor is employing or contracting with an illegal alien. Producer shall terminate the subcontract if the subcontractor does not stop employing or contracting with the illegal alien within three (3) days of receiving the notice regarding Producer’s actual knowledge. Producer shall not terminate the subcontract if, during such three days, the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. Producer is required to comply with any reasonable request made by the Department of Labor and Employment made in the course of an investigation undertaken to determine compliance with this provision and applicable state law. If Producer violates this provision, Avon may terminate this Agreement, and Producer may be liable for actual and/or consequential damages incurred by Avon, notwithstanding any limitation on such damages provided by such Agreement. A.6. No Waiver of Rights: A waiver by any Party to this Agreement of the breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either Party. Avon’s approval or acceptance of, or payment for, services shall not be construed to operate as a waiver of any rights or benefits to be provided under this Agreement. No covenant or term of this Agreement shall be deemed to be waived by Avon except in writing. A.7. Binding Effect: The Parties agree that this Agreement, by its terms, shall be binding upon the successors, heirs, legal representatives, and assigns. A.8. Limitation of Damages: The Parties agree that Producer’s remedies for any claims asserted against Avon shall be limited to proven direct damages in an amount to exceed amounts due under the Agreement and that Town shall not be liable for indirect, incidental, special, consequential or punitive damages, including but not limited to lost profits. A.9. No Third-Party Beneficiaries: Nothing contained in this Agreement is intended to or shall create a contractual relationship with, cause of action in favor of, or claim for relief for, any third party, including any agent, sub-consultant or sub-contractor of Producer. Absolutely no third-party beneficiaries are intended by this Agreement. Any third-party receiving a benefit from this Agreement is an incidental and unintended beneficiary only. A.10. Governing Law, Venue, and Enforcement: This Agreement shall be governed by and interpreted according to the law of the State of Colorado. Venue for any action arising under this Agreement shall be in the appropriate court for Eagle County, Colorado. To reduce the cost of dispute resolution and to expedite the resolution of disputes under this DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 30 Agreement, the Parties hereby waive any and all right either may have to request a jury trial in any civil action relating primarily to the enforcement of this Agreement. The Parties agree that the rule that ambiguities in a contract are to be construed against the drafting party shall not apply to the interpretation of this Agreement. If there is any conflict between the language of this Agreement and any exhibit or attachment, the language of this Agreement shall govern. A.11. Survival of Terms and Conditions: The Parties understand and agree that all terms and conditions of the Agreement that require continued performance, compliance, or effect beyond the termination date of the Agreement shall survive such termination date and shall be enforceable in the event of a failure to perform or comply. A.12. Assignment and Release: All or part of the rights, duties, obligations, responsibilities, or benefits set forth in this Agreement shall not be assigned by Producer without the express written consent of Avon. Any written assignment shall expressly refer to this Agreement, specify the particular rights, duties, obligations, responsibilities, or benefits so assigned, and shall not be effective unless approved by Avon. No assignment shall release the Producer from performance of any duty, obligation, or responsibility unless such release is clearly expressed in such written document of assignment. Such consent of Avon shall not be required in the event of any transfer or assignment in connection with any merger, acquisition (whether stock or asset) or other change of control involving Contractor/Producer. A.13. Severability: Invalidation of any of the provisions of this Agreement or any paragraph sentence, clause, phrase, or word herein or the application thereof in any given circumstance shall not affect the validity of any other provision of this Agreement. DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 31 ATTACHMENT 1 OPTION TRACKER AND CONFIGURATION TEMPLATES See attached pages DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract BUS AND CHARGER OPTIONS CONFIGURATOR Customer Number of buses Bus length / model Number of chargers Charger Mfg / Model Contract/P.O. # Delivery Date DESCRIPTION UNIT PRICE # OF UNITS TOTAL PRICE BUS & CONFIGURABLE OPTIONS Base bus $739,000 2 $1,478,000 Configurables $109,773 2 $219,546 Sub-Total, Customer Configured Bus:$848,773 2 $1,697,546 Warranty (Standard Warranty at $0 Price)$0 2 $0 Sub-Total, Bus with Config, Warranty, Tax & Discount:$848,773 2 $1,697,546 CHARGING EQUIPMENT Charger, 125kW PCS (Star-Point Junction Box & Dispenser)$35,550 3 $106,650 Sub-Total, Charging Equipment:$35,550 3 $106,650 CHARGING EQUIPMENT INSTALLATION (IF APPLICABLE) Charging Equipment Installation (Lump Sum)$89,520 1 $89,520 Sub-Total, Charging Equipment Installation:$89,520 $89,520 OTHER ITEMS Training (Standard Training Package at $0 Price)$0 1 $0 Manuals (Standard Manuals Package - Digital Version at $0 Price)$0 1 $0 Tools $6,512 1 $6,512 Parts and other service $50,007 1 $50,007 Sub-Total, Other Items:$56,519 $56,519 TOTAL:$1,950,235 PA-2021-001-AVON TBD Town of Avon 2 35' ZX5 3 125kW PCS (Star-Point Junction Box & Dispenser) CONFIDENTIAL Page 1 of 9 6/16/2021 Approved by: Customer: ______________________________ DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract Option Tracker - Bus Configuration REV C02 Customer Town of Avon Option Content Pricing (Per Bus):$109,773 Number of buses 2 Bus Length / Model 35' ZX5 Contract/P.O. #PA-2021-001-AVON Tentative Delivery Date TBD Proterra Tech Spec Category Customer Selection Option Price Impact X E2 - Four (4) HV Battery Packs, 440kWh $0 X DuoPower E-Axle (Single Axle, Dual Electric Motors, Invertors, and Transmissions)$40,000 X Base - None $0 X Two (2) J1772-CCS Charge Ports: (1) Curbside Rear & (1) Streetside Rear $2,565 X Base - Fire Extinguisher in Curb Side Storage box $0 X Capable of front tow and rear ditch extraction (no rear tow)$6,189 X Base - Single Male Industrial fitting @ bumper and Rear SS access panel $0 X Base - Clean Buff Aluminum, ALCOA PN 896517 $0 X Base - Torque Indicators, Green (Wheel Check WLCH-B)$0 X Hubodometer - Veeder-Root Mechanical $233 X Spare Wheel QTY: 1 Clean Buff Aluminum, ALCOA PN 896517 $593 X Base - Michelin X InCity Energy Z LR L- 315/80R22.5 $0 X Spare Tire (per Tire) QTY: 1 Michelin X InCity Energy Z LR L-315/80R22.5 $738 X 2 Spoke (20")$62 X Front and Side 48" (Half Solid/Half Mesh)$135 X 5-Position Door Switch $675 X Base - Non-Adjustable Pedals $0 X Cup Holder $83 X Driver Coat Hanger $30 X Two (2) Driver Controlled Dash Fans $249 X Heated Seat (Reference Winter Weather Selection), included in seat cost $0 X Special Request Recaro Ergo Metro 8HC.PB.591.VV11 1. Head Rest (Vinyl) = H 2. Right Side Armrest = C 3. Seat belt Alarm = P 4. 240 mm (9.25”) Tracks 5. Right Hand Controls 6. Right Hand 2-PT Belt, Black Webbing =5 7. 12 Degree Recline = 1 8. Powder Coated Black CRS (Cold Rolled Steel) Riser = 9 9. Vinyl Inserts and Bolster (Recaro Lettering Stitching) = VV11 10. Add heated seat option = B $548 X SafeFleet High Mount SS & CS Exterior Mirrors $531 X Base - Flush Mounted, Single Slider Opening, Rocker Latch Handle, 75% Green, 5mm Tempered Glass $0 X Special Request - Reference Template - Single-Piece, Flush Mounted, 50% Grey, 5mm Tempered Glass - Add tip-in option for top section $9,185 X Base - 2 Egress Windows (2 SS)$0 X Base - Eberspaecher 136 All Electric HVAC - R134a refrigerant, 30 kW cooling, 16 kW heating (110F to 80F in 30 min. Meets Modified Houston Pull Down) $0 X Base - None $0 X Base - 1 x Opaque Manually Operated $0 X Mounted on Front bumper, toward street side of bus $40 X Base - Square Key for Exterior Access Panels (Except the Access Panel for the Master Battery Disconnect Switch which remains unlocked) $0 X Sportworks 2 position - APEX 2 - Stainless Steel Finish $1,517 X Base - No Sensor Installed $0 X Wrap - Reference Teamplate - Wrap design provided by customer - Install wrap on the base bus gel coat finish $10,000 X Base - Proterra Decal Package Biligual (English & Spanish)$0 X Full Enclosure (Arow Global) - MV308 Driver Protection System with Standard Glass $9,944 X Base - Altro Meta 2.7 (Color = STORM)$0 X Base - Overhead LED Interior Lighting - White $0 X Base - None $0 X Special Request - Reference Seating Template $791 X Special Request - Reference Passenger Assist Template $647 X Base - 6 Grey Nylon Prima Grab Straps w/ Plastic Knuckle $0 X Base - Ventura Pneumatic, Rear door is In-Swinging $0 OPTION TRACKER Access Door Latch/Locks Interior Lighting Fare Collection TS 9 Overhead Charging Interface TS 5.10 Fire Detection / Suppression Tow Connections TS 46.4 Drivers Controls TowingTS 25 TS 32.1 TS 47 TS 33 Steering Wheel Propulsion System (Electric) Energy Storage System TS 9 Electric Drivetrain Wheels (22.5 x 9") Driver Foot Controls TS 32.2 TS 46.6 TS 79.5 Bike Rack SensorTS 70.2 TS 75.9 TS 76 Appearance (Exterior Graphics)TS 71.1 Winter Weather Package Operator's BarrierTS 75.1 Decals, Numbering and SignalingTS 72 TS 75.8 Passenger Doors TS 66 Passenger WindowsTS 53.4 TS 69.2 TS 70.2 Bike Rack TS 53.2 Emergency Exit (Egress) Passenger Seating Floor Covering Front License Plate Holder TS 79 Passenger Assists (Stanchions) Overhead TS 78 TS 62 Hatches TS 54 HVAC Driver's Seat Note: If these buses are subject to CMVSS, a 3-point seat belt is required. TS 49 TS 49.8 TS 46.3 Visors / Sun Shades TS 9 Mirrors (Exterior) Driver's Amenities TS 52 Driver's Side Window Wheel & Tire Accessories TS 9 Charge Ports Tires CONFIDENTIAL Page 2 of 9 6/16/2021 Approved by: Customer: ______________________________ DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract Option Tracker - Bus Configuration REV C02 Customer Town of Avon Option Content Pricing (Per Bus):$109,773 Number of buses 2 Bus Length / Model 35' ZX5 Contract/P.O. #PA-2021-001-AVON Tentative Delivery Date TBD Proterra Tech Spec Category Customer Selection Option Price Impact OPTION TRACKER X BASE - Driver Controlled Rear Door $0 X Base - Dual Redundant System (Sensitive Edge + Motor Feedback)$0 X Ricon 6:1 $2,982 X Base -2 ADA Positions with 4-point ADA securement system (Q'Straint)Incl. Seat Quote X Luminator, Amber - Front 16x160 - Curbside 14x112 $2,598 X Add 11" Advertisment Holders (standard is 14")$286 X Base - None $0 X Pull Cords, Single Switch on Stanchion Forward of Rear Door $393 X Base - Touch Pad on Seat $0 X Base - Backlit “Stop Requested” sign, Transign #SRD300 $0 X Special Request - Reference Surveillance Template - Safety Vision , 8 Camera System - 3 Exterior & 5 Interior Cameras - 12-Channel Recorder, Panic Button & UPS Back-up Battery $8,595 X Special Request - REI CD-3000 AM/FM/CD/PA System - Gooseneck mic with activation button $0 X Base - None $0 X Base - None $0 X Base - Covert switch Triggers Destination Sign Emergency Message ONLY $0 X Special Request - Motorola APX-4500, handheld mic, mic clip, 800MHz antenna - Install control unit in the electronics compartment - Install remote panel on right side of driver's dash (Ref. Driver's OH Panel Template) $7,421 X Base - None $0 X Base - None $0 X ADA alarm (exterior alarm) will sound with the left or right turn signal, switch in the drivers area to enable/disable the exterior alarm.$1,508 X Special Request - Add USB port for charging devices in the driver's area $150 X Special Request - Swap Parking Brake switch with Motor Shutdown Override switch $1,091 Other Destination Signs Interior Document Holders and Advertising ADA Stop Request Signal Type Passenger Stop Request / Exit Signal TS 86.4 ITS Event Data Recorder TS 83 TS 81.5 Wheelchair Accomodations Stop Requested-Next Stop Sign Voice/CB (2-way) Radio System Emergency Alarm TS 86.2 TS 85 TS 87 TS 86.4.4 Loading Systems for Low-Floor Bus (ADA Ramp)TS 81.1 Exterior Advertising TS 84 TS 86.6 Interior Passenger Display Monitors Door Safety TS 86.5 Automatic Passenger Counter (APC)TS 86.3 TS 80 Camera Surveillance System Public Address System TS 86.1 Rear Door Operation TS 88 Pedestrian Turn Warning System CONFIDENTIAL Page 3 of 9 6/16/2021 Approved by: Customer: ______________________________ DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract Option Tracker - Charger Configuration REV C02 Customer Town of Avon Option Content Pricing (Per Unit):$35,550 Bus Length / Model 35' ZX5 Number of chargers 3 Contract/P.O. #PA-2021-001-AVON Tentative Delivery Date TBD Proterra Tech Spec Category Customer Selection Option Price Impact X Custom (describe here) Star-Point Junction Box for 125kW + Remote Dispenser $31,500 X 25' CCS Cord $550 X Pedestal Mounting $750 X 60kW or 125kW Plug-In Charger Commissioning (per PCS unit)$2,750NACharger Commissioning CHARGER NA SAE J1772 CCS Type 1 Plug-In Chargers NA Plug-In Charger Accessories CONFIDENTIAL Page 4 of 9 6/16/2021 Configuration as noted above approved by: Customer: ____________________________________ DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract Option Tracker - Warranty Options REV C02 Customer Town of Avon Option Content Pricing (Per Bus):$0 Number of buses 2 Bus Length / Model 35' ZX5 Contract/P.O. #PA-2021-001-AVON Tentative Delivery Date TBD Warranty Area Warranty Terms: Template Name Covered Items Warranty Type Duration Unit of Time Warranty Applicable (Indicate "Y" if Yes) Price Extended Price Body Warranty Package Body Warranty Package - 12 Year/600,000 Std Main Monocoque Structure & Corrosion Non-Structural Body elements of: Monocoque Body, Composite Materials Component within the Structural and Body Warranty against rust-through. Standard 12 Years Y N/C N/C Chassis Package Chassis Package - 2 Year/100,000 Std Standard 2 Years Y N/C N/C Complete Vehicle (DuoPower)Complete Vehicle (DuoPower) - 1 Year/50,000 Std Standard 1 Years Y N/C N/C Control Systems Package Control Systems Package - 2 Year/100,000 Std Standard 2 Years Y N/C N/C HV Power Electronics & Cooling Package HV Power Electronics & Cooling Package - 2 Year/100,000 Std Standard 2 Years Y N/C N/C HVAC Package HVAC Package - 2 Year/100,000 Std Standard 2 Years Y N/C N/C Propulsion System Package (DuoPower)Propulsion System Package (DuoPower) - 2 Year/100,000 Std Standard 2 Years Y N/C N/C Vehicle Structural Package Vehicle Structural Package - 3 Year/150,000 Std Standard 3 Years Y N/C N/C Battery Battery - State of Health - 6 Year Std Battery (ESS) - Standard State of Health – 6yr/usage per warranty document Standard 6 Years Y N/C N/C Battery Battery - Base Materials and Workmanship - 6 Year Std Battery (ESS) - Base Materials and Workmanship – 6yr/Unlimited Standard 6 Years Y N/C N/C ADA Ramp ADA Ramp - 2 Year/100,000 Std Standard 2 Years Y N/C N/C Destination Signs Destination Signs - 2 Year/100,000 Std Standard 2 Years Y N/C N/C Door Systems Door Systems - 2 Year/100,000 Std Standard 2 Years Y N/C N/C Fire Suppression Fire Suppression - 2 Year/100,000 Std Standard 2 Years Y N/C N/C Low Voltage Power Low Voltage Power - 2 Year/100,000 Std Standard 2 Years Y N/C N/C Seats Seats - 2 Year/100,000 Std Standard 2 Years Y N/C N/C Windows Windows - 2 Year/100,000 Std Standard 2 Years Y N/C N/C Charger Depot Charger Depot - 2 Year Std Standard 2 Years Y N/C N/C Includes the structural elements of the following: Suspension, Front & Rear, Powertrain Cradle, Including Support Members Place a "Y" in column "G" for all applicable warranties. All Extended Warranties are designated by Orange Boxes. Any warranty coverage requested by the customer not listed in the trracker would be considered a "Custom Warranty" and should be entered at the bottom of the page with a detail description of coverage. For pricing see Warranty Pricing sheet or contact the Warranty Manager. Note **Extended Warranty Duration shown is added to the Standard Warranty Duration (I.E. If Standard Warranty Duration is 2 years and the customer is seeking 5 years of coverage you will choose the 3 year extended warranty) Axles, Steering, Brakes & Suspension, ABS Controller, Front Suspension/Axle Assy, Rear Suspension Assy, Air Bags/Shocks, Ride Height Controller, Ride Height Sensors, Air Compressor, Air Dryer, Brake Calipers, Wheel Speed Sensors, Power Steering Pump/MotorLimited Warranty ZR Vehicle Controller, Multiplex, Powertrain Controller, DMUX, Charge Controller, WCCM (Pantograph), Data Logger, Ride Height Controller, Body Controller, ABS Controller VFD, DC-DC, EMP Pump, HV Junction Box, Radiator, Grayson Pump (if equipped) Traction Motors, Traction Motor Inverter, Gear Boxes, Planetary Units, Oil Pumps WARRANTY CONFIDENTIAL Page 5 of 9 6/16/2021 Approved by: Customer: ______________________________ DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract Option Tracker - Training Options REV C02 Customer Town of Avon Option Content Pricing (Per Order):$0 Number of buses 2 Bus Length / Model 35' ZX5 Contract/P.O. #PA-2021-001-AVON Tentative Delivery Date TBD Proterra Tech Spec Category Customer Selection Option Price Impact X Base - Up to 8, 2hr classes (16hrs total)$0 X Base - 1, 2-4hr class (8hrs total)$0 X Base - 4, 4hr classes (16hrs total)$0 X Option 1 3, 16hr classes (Maintenance 1, Maintenance 2, Advanced Diagnostics and Troubleshooting) *Dependant on agency's needs/availability **This option requires the same student roster for each session ***Classes are typically delivered 30 days after vehicle delivery, 120 days after vehicle delivery, and 30 days prior to the end of the 1st year of warranty respectively $0 X Base - 1, 8hr class $0 NA Bus Maintenance Training NA Charger Maintenance Training - PCS Chargers TRAINING NA Operator Training - Depot Charge NA FSR Familiarization Coaching (Introduction to the bus) NA First Responder Training CONFIDENTIAL Page 6 of 9 6/16/2021 Configuration as noted above approved by: Customer: ____________________________________ DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract Option Tracker - Manuals Options REV C02 Customer Town of Avon Option Content Pricing (Per Order):$0 Number of buses 2 Bus Length / Model 35' ZX5 Contract/P.O. #PA-2021-001-AVON Tentative Delivery Date TBD Proterra Tech Spec Category Customer Selection Option Price Impact X Base - Unlimited view/download access to electronic PDF on ShareFile.$0 X Base - Unlimited view/download access to electronic PDF on ShareFile.$0 X Base - Unlimited view/download access to electronic PDF on ShareFile.$0 X Base - Unlimited view/download access to electronic PDF on ShareFile.$0 X Base - Unlimited view/download access to electronic PDF on ShareFile.$0 NA Quick Reference Guides NA Electrical Schematic MANUALS NA Maintenance and Repair Manual NA Parts Manual NA Operator Manual CONFIDENTIAL Page 7 of 9 6/16/2021 Configuration as noted above approved by: Customer: ____________________________________ DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract Option Tracker - Diagnostic Tools Options REV C02 Customer Town of Avon Option Content Pricing (Per Order):$6,512 Number of buses 2 Bus Length / Model 35' ZX5 Contract/P.O. #PA-2021-001-AVON Tentative Delivery Date TBD Proterra Tech Spec Category Customer Selection Option Price Impact NA Proterra Diagnostic Software License X Each $5,000 NA NEXIQ USB-LINK (WiFi) & NEXIQ J1962 Adaptor- Required for Proterra Diag Software X Each $1,512 DIAGNOSTIC EQUIPMENT AND SPECIAL TOOLS CONFIDENTIAL Page 8 of 9 6/16/2021 Configuration as noted above approved by: Customer: ____________________________________ DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract Option Tracker - Parts Service Options REV C02 Customer Town of Avon Option Content Pricing (Per Order):$50,007 Number of buses 2 Bus Length / Model 35' ZX5 Contract/P.O. #PA-2021-001-AVON Tentative Delivery Date TBD Proterra Tech Spec Category Customer Selection Option Price Impact X 35' Recommended Spares $50,007Initial Recommended Spare Parts NA PARTS AND OTHER SERVICES CONFIDENTIAL Page 9 of 9 6/16/2021 Configuration as noted above approved by: Customer: ____________________________________ DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BABATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 32 ATTACHMENT 2 BUS TECHNICAL SPECIFICATIONS See attached pages DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Description ZX5 ZX5+ ZX5 VEHICLE WITH DUOPOWER™ DRIVETRAIN Total Energy kWh 225 450 Operating Efficiency* kWh/mile 1.5-2.0 1.6-2.3 MPGe 18.8-25.1 16.4-23.5 Operating Range*Miles; Usable energy/Operating efficiency 95-125 172-240 Top Speed (Proterra-governed)mph (per tire rating)65 65 Acceleration (at SLW, seconds) 0 to 20 mph 5.6 5.7 20 to 50 mph 14.7 12.3 Gradability (top speed at % grade, at SLW, mph) 5%56 65 10%38 50 15%27 32 Max Grade (at SLW)33%29.5% Horsepower Peak 338 550 Continuous 170 338 Motor Dual independent 205 kW motors •• Gearbox Proterra 2-speed auto-shift EV gearbox •• Curb Weight lbs 26,358 29,658 Max Gross Vehicle Weight Rating lbs 42,000 42,000 ZX5 VEHICLE WITH PRODRIVE DRIVETRAIN Total Energy kWh 225 450 Operating Efficiency* kWh/mile 1.6-2.0 1.7-2.4 MPGe 18.8-23.5 15.7-22.2 Operating Range*Miles; Usable energy/Operating efficiency 94-124 164-227 Top Speed (Proterra-governed)mph (per tire rating)65 65 Acceleration (at SLW, seconds) 0 to 20 mph 5.9 6.1 20 to 50 mph 20.9 23.1 Gradability (top speed at % grade, at SLW, mph) 5%48 44 10%29 28.5 15%24 21.5 Max Grade (at SLW)26%23.5% Horsepower Peak 335 335 Continuous 170 240 Motor Single 250kW permanent magnet drive motor •• Gearbox Proterra 2-speed auto-shift EV gearbox •• Curb Weight lbs 26,558 29,858 Max Gross Vehicle Weight Rating lbs 42,000 42,000 CHARGING Max Plug-in Charge Rate at 200A kW 73 132 Max Overhead Charge Rate kW 165 330 Overhead Charging Miles replenished per 10 minutes **24 33 Est. time Empty to Full***1.8 hrs 2.0 hrs Plug-in Charging Est. time Empty to Full***1.8 hrs 2.9 hrs *Operating range and efficiencies approximated from simulations based on Altoona testing results at SLW, and will vary with route conditions, weather, vehicle configuration and driver behavior. ** ProDrive powertrain efficiencies | *** Charge time will vary depending on charger type. Estimated charge time empty to full based on 0-97% 35 FOOT BUS PLATFORM SPECIFICATIONS DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Description VEHICLE DIMENSIONS Length 443" Height 128" Width (without mirrors)102" Width (with mirrors)118.8" Wheelbase 243" Approach Angle 9.3° Breakover Angle 7.8° Departure Angle 9.3° Turning Radius 432" INTERIOR Seating Capacity 29 Door Width Front 43.2", Rear 49.1" Lighting LED interior lighting system Handles Stainless-steel stanchion system Stop Request ADA pull cord or touch tape stop request Doors Senstive edges on both front and rear door Wipers Electric wipers and washers HVAC Overhead integrated system EXTERIOR Bus Body Carbon-fiber-reinforced composite material Tires Standard: Michelin 315/80R22.5 Exterior Lights LED BRAKES & SUSPENSION Braking System Regenerative braking; front & rear air disk brakes Traction 4-wheel ABS with optional traction control Suspension Multi-Link Air Ride rear suspension ELECTRICAL SYSTEM Battery System Integrated battery management system Low Voltage Two, Group 31 700 CCA 12v batteries Charge Ports J1772 CCS: One port standard at curb-side rear, 2nd port optional at street-side rear or curb-side front Overhead Charging Optional Plug-in Charging Universal standard J1772-CCS Overhead Charging Universal standard J3105 ADA Two ADA locations, one on each side of the aisle directly behind the front wheel ADA securement system Front ADA power wheelchair ramp (4:1, 6:1 slope) Rear door modesty panels Aisle width between front wheel wells: 35.7" WARRANTY Vehicle Complete Bus - 1 year or 50,000 miles Extended warranties and service contracts available upon request Batteries 12 years / unlimited miles, materials and workmanship SPEC_35_002_2020_Q435 FOOT BUS PLATFORM SPECIFICATIONS DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 33 ATTACHMENT 3 CHARGING STATION TECHNICAL SPECIFICATIONS See attached pages DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract SPECIFICATION 125KW POWER CONTROL SYSTEM General Model 125 kW Power Control System Part Number 033713 Required system components Proterra Dispenser CCS Type 1 Cable Electrical Input Nominal Power –Continuous 138 kVA Input Voltage 480VAC,5-Wire WYE (L1, L2, L3, Neutral, Ground) Input Current 166A @ 480VAC,60Hz Input Frequency 60 Hz Power Factor >0.995 Maximum Efficiency >90% THD –Full Power <3% Electrical Output Output Power Capability –Continuous 125 kW Output Voltage 500-1000VDC 125kW 270-499VDC 60kW Output Current ±200ADC Charging Module Remote dispenser with vehicle interface Mechanical Cooling Liquid cooled –closed loop, exchanger integrated Weight 2500 lb Dimensions Width 40 inches Depth 23.6 inches Height 85 inches Environmental Rated NEMA 3R Wall Clearance Side 6 inches Back 1 inch Adjacent Unit Clearance Side 1 inch gap Back 1 inch gap Door Clearance Facing open space 36 inches Facing another door 48 inch gap Environmental Operational Temperature Range -35°C to 55°C Humidity 0%to 95% Altitude De-rates over 2000m above sea level Communications Protocols Remote management OCPP 1.6 via 4G Cellular Vehicle Communication SAE J1772 CCS Certifications UL 2202, 2231 1DOCUMENT 038145 A02 SPECIFICATION, 125KW PCS DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract May 29th, 2020 Town of Avon 500 Swift Gulch Rd, Avon, CO Re: Proterra – Construction and Installation for three (3) new 125kW DC EV Bus Charging Station Dispensers. Dear Ms. Wilson, We are pleased to provide this quote related to the above referenced project. We have provided a price for the installation of three (3) proterra 125kW PCS DC charging system dispensers at the Town of Avon bus yard located at 500 Swift Gulch Rd, in Avon, Colorado. Project Scope Overview: Town of Avon is planning to procure electric transit buses for use in the Avon Colorado area. In support of this deployment Proterra shall submit this proposal for construction and installation services to install three (3) 125kW PCS charging system dispensers and the necessary electrical distribution equipment and connections to the building electrical system. The project includes installing three (3) new Proterra charging dispensers to be mounted inside the bus garage located at 500 Swift Gulch Rd, in Avon, CO. The 125kW Proterra Charging cabinets will already be installed as part of an existing contract with Eagle County, this proposal is to add three (3) additional dispensers to those charging cabinets. Scope of Services- Installation Scope: · Install protective steel 6” diameter bolt down traffic bollards to protect three (3) charging dispensers. Ten (10) bollards total. · Unload three (3) Proterra charging dispensers upon their arrival at installation site. · Mount three (3) Proterra Charger Dispensers and associated charge cable hook to existing concrete floor in garage, fed from the existing junction boxes at charger cabinets installed under the original contract. · Install two (2) 1.5” EMT conduits from the existing Proterra PCS charger junction boxes to each of the new dispensers. · Conduits will be installed on existing racking along the wall above the garage doors approx. 15’ AFF to the three (3) locations indicated as future on the existing engineered plans dated 4/1/2020. · Terminate all cabling from each of the Proterra Junction boxes to the Proterra Charger Dispensers. Check voltages, perform testing and power on the charger dispenser equipment. DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract · Provide 8 hours of manpower for testing with Proterra · Maintain a competent supervisor onsite at all times when work is being performed. · Maintain a neat and tidy jobsite, with general housekeeping as a high priority. · Provide safety work plans and progress reports weekly to Proterra and Town of Avon. Scope Exclusions: · Does not include cost for charger equipment. · Design and engineering costs are excluded. · Work is assumed to be performed while Proterra contractors are already onsite. · Does not include overtime or off-shift work. Fee Schedule Lump Sum Contract Price : $89,520.00 This quote is made subject to contract and without prejudice. Proterra shall not commence any work on the project until the parties have executed a contract. This quote shall expire in 30 days. Best regards, David Nguyen Infrastructure Project Manager Proterra, Inc. Cc: Andre Lalljie, Proterra Director of Infrastructure Cc: Nishant Dixit, Proterra Business Engagement Manager DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Contract No. PA-2021-001-AVON Battery Electric Buses Version No. 05 Dated June 16, 2021 34 ATTACHMENT 4 WARRANTY PROVISIONS See attached pages DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract CS-OTH-017 3/31/2021 Proterra, Inc. (“Proterra”) warrants to the original purchaser/lessee (“Customer”) that its Proterra ZX5 / ZX5+ / ZX5 Max - Series Battery Electric Transit Bus will be free from defects in material and workmanship under normal use and when properly serviced. Proterra agrees to repair or replace defective parts with either new, or re-certified parts when available, subject to the terms and conditions set forth herein. NOTE: This Warranty does not include Proterra High Voltage Battery Packs. Please refer to the Battery Pack Limited Warranty section. The final determination of required repairs or parts replacement shall be the sole discretion of Proterra. This Proterra Transit Bus Complete Vehicle Limited Warranty (“Warranty”) is a limited warranty subject to the terms and conditions stated in the sections below. EXCEPT FOR THE OBLIGATIONS, WARRANTIES AND REPRESENTATIONS SPECIFIED HEREIN, PROTERRA MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, AND SPECIFICALLY DISCLAIMS ANY WARRANTY ARISING BY USAGE OF TRADE OR BY COURSE OF DEALING. This Warranty is comprised of two sections; Section A applies to the Complete Vehicle, Vehicle Structural Warranty, and Body Warranty. Section B applies to the Major Components listed below. Proterra will reimburse the customer for the parts and labor as published in the Proterra Standard Repair Time Guide (“SRT”) and shall follow local ordinances as necessary and if applicable in accordance with the terms of this warranty and the purchase/lease agreement, along with associated freight costs to provide required replacement parts during the warranty time period identified below. Warranty repairs may be performed by the Customer, an authorized warranty provider, or Proterra only and must adhere to the terms and conditions outlined in the following statement of warranty. All components replaced under the warranty are exclusive property of Proterra Inc. and must be returned following the procedures set forth in the “Part Return” section of the warranty manual. Proterra, at its sole discretion or as part of a Proterra Service Plan, may perform warranty repairs at the Customer location. Costs associated with these repairs will be at the expense of Proterra during standard operating hours. Emergency afterhours warranty support may be performed at the request of the Customer for a fee. At Proterra, safety is of the utmost importance for our customers and our employees. Therefore, we require our customers to have and maintain the necessary safety equipment, in accordance with state and local OSHA regulations, for the use of any Proterra employee, or authorized provider, that may be performing or assisting with repairs at the Customer’s location. This includes but is not limited to, fall restraints, proper lifting equipment and jack stands. Proterra employees will not be permitted to perform any repairs without the necessary safety equipment being provided. PROTERRA TRANSIT BUS COMPLETE VEHICLE LIMITED WARRANTY  DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract CS-OTH-017 3/31/2021 This section includes manufactured or assembled components and systems, including some purchased assemblies listed below. Proterra Complete Vehicle Limited Warranty 1 Year / 50,000 Miles, whichever occurs first. (1 Year / 80,467 Kilometers, whichever occurs first). Coverage includes all components and workmanship that were provided with the Complete Vehicle from the factory. Excludes:  Normal maintenance items or wearable items including, but not limited to, brake pads, filters, light bulbs, fuses, circuit breakers, bushings, or any consumable items that are the sole responsibility of the Customer  Provided Customer Equipment, including but not limited to, cameras, fare boxes, counters, and ITS components.  Adjustments, Alignments and/or loose hardware after the first90 days following vehicle acceptance. Vehicle Structural Warranty 3 Year / 150,000 Miles, whichever occurs first. (3 Year / 241,401 Kilometers, whichever occurs first). Includes the structural elements of the following: Suspension, Front & Rear, Powertrain Cradle, Including Support Members. Excludes:  Physically damaged components due to accidents or other impacts.  Modified/Repaired components that were damaged and repaired after collision. Body Warranty (Monocoque Assembly) 12 Year / 500,000 Miles, whichever occurs first. (12 Year / 804,672 Kilometers, whichever occurs first). This applies to any structural and/or workmanship defects discovered in the Monocoque structure. Excludes:  Non-structural members. WARRANTY TERMS SECTION A – PROTERRA TRANSIT BUS – STANDARD BASE WARRANTY COVERAGE  DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract CS-OTH-017 3/31/2021 This section includes major components purchased and installed by Proterra and listed below and is guided by the manufacture warranty. Each item listed in Section B is covered for 2 years or 100,000 miles (160,934 Kilometers), whichever occurs first. Propulsion System Warranty System Components including but not limited to; Traction Motor, Traction Motor Inverter, Transmission, Drive Shaft, Output Flange, Differential, Gearboxes, Planetary Sets, and Axle shafts, Oil pump(s), and all internally lubricated parts. Excludes: Lack of maintenance and/or physically damaged components HV Power Electronics and HV Cooling Warranty System Components including but not limited to, VFD, DC-DC, HV Junction Box, Radiator, and Battery Coolant Pump(s), Contactors, Shunts and Buss Bars. Excludes: Lack of maintenance and/or physically damaged components HVAC Warranty System Components including but not limited to, Condenser, Compressor, Controller, HVAC Inverter, Evaporator, Receiver/Drier, Blower Fan, Ducting, Thermostat/Thermistor, VFD, and related Sensors and Switches. Excludes:  Maintenance items/filters  Debris from external sources (e.g. leaves, dust/dirt)  Routine Recharge/System Tests  Lack of maintenance  Physically damaged components Control Systems & Driver Convenience Warranty System Components including but not limited to, ZR Vehicle Controller, Multiplex, Powertrain Controller, D-MUX, Charge Controller, WCCM (Pantograph), Factory Telemetry/Data Logger, Ride Height Controller, Body Controller, Defroster and Blower Motor, Driver Workplace Controls and Switches, Excludes:  Modifications to system architecture  Physically damaged components Chassis System Warranty System Components including but not limited to, ABS Controller, Air Bags/Shocks, Ride Height Linkage/Sensors, Ride Height Controller, Ride Height Manifold, Air Compressor, Air Dryer, Brake Calipers, Wheel Speed Sensors, Power Steering Motor and Pump, Steering Linkage and Gear. Excludes:  Air Compressor Filter & Oil Separator Maintenance  Lack of maintenance  Physically damaged components Auxiliary Heater Warranty System Components limited to added components within the Auxiliary Heating Option if selected by the Customer. This includes, Auxiliary Heating Unit, Aux. Heat Fuel System Components, Aux. Blower Motor(s), Aux. Ducting, Aux. Thermistor(s), and Aux. Control(s) as equipped per specification. Excludes:  Maintenance items/filters  Debris from external sources (e.g. leaves, dust/dirt)  Lack of maintenance  Physically damaged components WARRANTY TERMS SECTION B ‐ PROTERRA TRANSIT BUS – STANDARD MAJOR COMPONENT COVERAGE – 2YR/100K  DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract CS-OTH-017 3/31/2021 LOW VOLTAGE 12/24 BATTERY POLICY  Configuration Package Warranty Subsystem Components including but not limited to, Wheelchair Access Ramp(s), Wheelchair Securement System(s), Door System(s), Windows, Destination Signs, Fire Suppression System, and Seating. This includes associated components within each system ordered and identified by the Sales Contract. This is contract-specific coverage based on Customer’s selected Options. Excludes:  Glass breakage, wear and tear  Refilling and/or certification of fire suppression bottles  Seat Covers and Upholstery  Physically damaged components The following conditions are not covered by this Warranty:  Alteration or modification of any part of the Product with any third-party item,  Misuse or negligent use of the bus, including but not limited to Customer’s, or a third-party’s, failure to follow Proterra’s Operating Manual,  Intentional or accidental collision and/or other physical damage.  Acts of Nature,  Neglect or Failure to perform the Preventative Maintenance as outlined in the maintenance documentation for the Product,  Unauthorized use or operation outside of the terms and conditions of the applicable lease contract,  Improper maintenance and repair, or  Intentional acts of destruction, tampering or vandalism.  Adjustments and Alignments past the first 90 days after the bus is delivered to the Customer’s site.  Normal maintenance items or wearable items including, but not limited to, brake pads, filters, light bulbs, fuses, circuit breakers, bushings, or any consumable items.  Oil, coolant, refrigerant and other fluids are not covered except when used in conjunction with a covered repair as identified in the Proterra Service Manual.  Any physical damage to Product while in transit to Customer site. This includes shipping damage by carrier delivering a bus. Any damage incurred while in transit will require a claim being filed to the transportation company.  Body paint and/or vehicle wraps are not covered by this Warranty. Speak to a Proterra representative regarding paint and/or vehicle wrap warranty. Proterra warrants the original 12/24V low voltage batteries during the first 90-day period upon delivery of the Proterra Bus and is not extendable. No claims for these batteries will be accepted after the original 90-day period. For approved low voltage battery replacements during the Warranty period, Customer shall acquire battery at their local vendor and submit for reimbursement through the Warranty Claim submission process outlined within this manual. Customer is advised to contact their local battery vendor for replacement low voltage batteries when required. Proterra will not sell nor ship low voltage batteries through its Service Parts Operation. Any subsequent battery failures will be subject to the warranty terms provided from the local battery vendor. WHAT IS NOT COVERED:  DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract CS-OTH-017 3/31/2021 DELAYED WARRANTY STARTS  PLEASE SEE THE PROTERRA TRANSIT WARRANTY MANUAL FOR ALL SERVICE, PARTS AND WARRANTY POLICIES AND  PROCEDURES The Warranty term starts on the Date of Acceptance for each Product in accordance with the terms of the applicable purchasing contract. Proterra administers the warranty process, and all warranty claim approvals are at the sole and absolute discretion of Proterra. In connection with any claim brought under this Warranty, the Customer must submit a completed Proterra Warranty Claim Form along with a copy of their internal work order, showing technician punch times, and any additional applicable documentation. Customer is required to retain any parts related to a Warranty transaction for thirty (30) days from the date that the claim has been approved. Proterra reserves the right to request any removed parts be returned at any time during the 30-day period. Customer also has thirty (30) days to return any parts that are identified as “Core” parts or will be charged the applicable “Core Charge”. Proterra may perform an inspection of the failed component and supporting documentation to make a claim determination. Proterra will not provide any compensation, labor, repairs, or replacement part to the Customer without the above documentation. Proterra reserves the right to adjust the approved amount to align with the current published SRT guide if excess amounts are claimed without prior authorization from Proterra. NOTE: Towing coverage is only reimbursed during the initial Transit Bus Complete Vehicle Limited Warranty for 1 Year/ 50,000 miles, whichever occurs first. All towing claims must be accompanied the warranty repair order and the towing invoice from the provider. Proterra will not pay mark-up on any sublet claims. For assistance with any warranty claim transactions, please email warranty@proterra.com for support. Please include vehicle VIN, current odometer, unit number, claim number and/or invoice in your correspondence. A Delayed Warranty Start may be granted for the Customer to ready the Product for revenue service. This Delayed Warranty Start period shall not exceed 30 days after the Date of Acceptance for each Product and must be approved in writing by Proterra. This period will allow for Customer to install any necessary equipment, have graphics applied, or any other service readiness activities. For Delayed Warranty Start approval, the Customer must apply for this added time as part of the Purchase Agreement for the Product, or by submitting the Delayed Warranty Start Application included in the Forms Section of the Appendix. ACTIVATION OF WARRANTY   DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract CS-OTH-020 2170 Limited Battery Pack Standard Warranty 12-7-2020 Subject to the terms, conditions and limitations set forth in this Battery Pack Limited Warranty (the “Warranty”), including, without limitation, the Approved Use Conditions, Proterra, Inc. (“Proterra”) warrants to the original purchaser or lessee (individually or collectively, the “Customer”) that its high voltage battery pack (the “Battery Pack”) for the Proterra ZX5 / ZX5+ /ZX5 Max - series battery-electric bus will be free from defects in materials and workmanship. This Warranty covers the parts, labor (if applicable and in accordance with the terms of this Warranty and/or any purchase or lease agreement), and freight costs incurred during the Warranty Period. The Battery Pack may not be serviced by the Customer, or any third-party maintenance provider, without having completed the proper factory training and have successfully been certified by Proterra to service the Battery Pack. Any servicing of the Battery Pack by the Customer, or any third-party maintenance provider, without having become Proterra-Certified will void the Warranty. Proterra, or a Proterra-Certified technician, will perform all necessary repairs to the Battery Pack. As it pertains to this section, the following terms are defined: “Gross Discharge Throughput” means the total energy discharged through the Battery Pack during its life, including energy from external chargers and energy recuperated from regenerative braking. The Gross Discharge Throughput will be tracked by the BMS at the Battery Pack level and reported through the onboard vehicle telemetry system. “Nameplate Energy” means the amount of energy stated in the specifications, bid proposal, and/or contract, divided by the number of Battery Packs (e.g., 4 Battery Packs at 400 kWh would have 100 kWh nameplate energy per Battery Pack). “Available Energy” means the amount of energy available between 0% state of charge (“SOC”) and 100% SOC - This information can be obtained using the Proterra diagnostic tool and a snapshot thereof must accompany any battery claims. Battery Pack Material and Workmanship Warranty 6 Years / Unlimited Mileage Coverage to include all materials, components and workmanship of the Battery Pack to be free of defects. Battery Packs with Nameplate energy of 112.5 kWh 6 Years / 200 MWh For Battery Packs with 112.5 kWh of Nameplate Energy and the Available Energy of 101 kWh in new condition, Proterra warrants Available Energy of 81 kWh per Battery Pack for 6 years, or 200 MWh of Gross Discharge Throughput per Battery Pack, whichever comes first. 2170 BATTERY PACK LIMITED WARRANTY 2170 BATTERY PACK LIMITED WARRANTY TERMS DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract CS-OTH-020 2170 Limited Battery Pack Standard Warranty 12-7-2020 This Warranty includes the following Battery Pack components: • Battery Modules • Battery Management System (BMS) • Battery Cooling System • Battery Pack Enclosure • Electrical, Mechanical, and Thermal Interfaces • Manual Service Disconnect (MSD) The following conditions are not covered by the Battery Pack Limited Warranty: • Battery Packs that have been serviced by a non-Proterra-Certified technician without prior authorization by Proterra. • Alteration or modification of any part of the Product with any third-party item • Misuse or negligent use of the bus, including but not limited to Customer’s, or a third-party’s, failure to follow Proterra’s Operating Manual • Intentional or accidental collision and/or other physical damage • Acts of Nature • Neglect or Failure to perform the Preventative Maintenance as outlined in the maintenance documentation for the Product • Unauthorized use or operation outside of the terms and conditions of the applicable lease contract, • Improper maintenance and repair • Intentional acts of destruction, tampering or vandalism COMPONENTS INCLUDED IN BATTERY PACK LIMITED WARRANTY WHAT IS NOT COVERED DocuSign Envelope ID: 19A176CD-2ACB-4E95-A580-50B401634BAB ATTACHMENT B: Proterra Contract Certificate Of Completion Envelope Id: 19A176CD2ACB4E95A58050B401634BAB Status: Completed Subject: Please DocuSign: Contract_Town of Avon - PA-2021-001-AVON.pdf Source Envelope: Document Pages: 98 Signatures: 2 Envelope Originator: Certificate Pages: 2 Initials: 0 Eva Brown AutoNav: Enabled EnvelopeId Stamping: Enabled Time Zone: (UTC-08:00) Pacific Time (US & Canada) 1815 Rollins Rd Burlingame, CA 94010 ebrown@proterra.com IP Address: 216.14.2.242 Record Tracking Status: Original 6/16/2021 4:23:23 PM Holder: Eva Brown ebrown@proterra.com Location: DocuSign Signer Events Signature Timestamp John Walsh JWalsh@Proterra.com SVP Proterra, Inc. Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 174.248.249.81 Signed using mobile Sent: 6/16/2021 4:27:04 PM Viewed: 6/17/2021 8:58:51 AM Signed: 6/17/2021 8:59:11 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Eva Brown ebrown@proterra.com VP, Legal Proterra, Inc. Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 76.90.194.215 Sent: 6/17/2021 8:59:13 AM Viewed: 6/17/2021 9:01:50 AM Signed: 6/17/2021 9:02:25 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Witness Events Signature Timestamp Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 6/16/2021 4:27:04 PM Certified Delivered Security Checked 6/17/2021 9:01:50 AM Signing Complete Security Checked 6/17/2021 9:02:25 AM ATTACHMENT B: Proterra Contract Envelope Summary Events Status Timestamps Completed Security Checked 6/17/2021 9:02:25 AM Payment Events Status Timestamps ATTACHMENT B: Proterra Contract 970-390-2014 ewilson @avon.org TO: Honorable Mayor Smith Hymes and Council Members FROM: Eva Wilson, Mobility Director RE: Diesel Bus Purchase Agreement - Gillig DATE: June 15, 2021 SUMMARY: For 2021, the Town of Avon was awarded up to 80% of $1,000,000 of CDOT FASTER funds to purchase two (2) 35’ Diesel replacement buses. The required 20% local match funds are in the 2021 Avon Budget. The purchase of the buses will be through a 2015 Purchasing Consortium that was formed to enhance the purchasing power of all Transit Agencies in Eagle County. The Town of Avon has a trans it fleet size of eleven (11) buses of various sizes and ages. Six of the eleven buses are beyond their useful life. This grant will enable Avon to replace two of our oldest diesel buses and reserve the m as backup buses. This effort will bring our transit fleet size to thirteen (13.) The approval of the State of Colorado Grant Agreement and the Gillig contract is presented to Council in accordance with the Town’s Procurement Code which requires Council approval for contracts over $100,000. The State of Colorado Grant Agreement is in a standard form that is non-negotiable. The Town Attorney has reviewed and approved the form of these contracts. RECOMMENDATION: I recommend Council approve the CDOT grant agreement and the CMPC Purchase Agreement with Gillig. PROPOSED MOTIONS: “I move to approve the State of Colorado Grant Agreement and the CMPC Purchase Agreement with Gillig.” Thank you, Eva ATTACHMENT A - State of Colorado Grant Agreement ATTACHMENT B – Colorado Mountain Purchasing Consortium Purchase Agreement with Gillig STATE OF COLORADO GRANT AGREEMENT COVER PAGE State Agency Department of Transportation Agreement Number/PO Number 21-HTR-ZL-03274/491002260 Grantee TOWN OF AVON Agreement Performance Beginning Date The Effective Date Initial Agreement Expiration Date December 31, 2022 Grant Agreement Amount FASTER Funds Maximum Amount Fund Expenditure End Date December 31, 2022 State Fiscal Year 2021 Local Funds Total for all State Fiscal Years $800,000.00 $200,000.00 $800,000.00 Agreement Authority Authority to enter into this Agreement exists in CRS §§43-1-106, 43-1-110, 43-1-117, 43-2- 101(4)(c), 43-4-811(2), SB18-001, SB17-228 and SB17-267. Agreement Purpose The purpose of this Grant is for CDOT to disburse FASTER Transit Program Funds to Grantee to conduct work within the provisions of this Grant. The work to be completed under this Grant by the Grantee is more specifically described herein. Exhibits and Order of Precedence The following Exhibits and attachments are included with this Agreement: 1. Exhibit A, Statement of Work and Budget. 2. Exhibit B, Sample Option Letter. 3. Exhibit C, Title VI-Civil Rights. In the event of a conflict or inconsistency between this Agreement and any Exhibit or attachment, such conflict or inconsistency shall be resolved by reference to the documents in the following order of priority: 1. Exhibit C, Title VI-Civil Rights. 2. Colorado Special Provisions in §17 of the main body of this Agreement. 3. The provisions of the other sections of the main body of this Agreement. 4. Exhibit A, Statement of Work and Budget. 5. Executed Option Letters (if any). Principal Representatives For the State: Brodie Ayers Division of Transit and Rail 2829 W. Howard Place Denver, CO 80204 brodie.ayers@state.co.us For Grantee: Eva Wilson TOWN OF AVON BOX D AVON, CO 81620 ewilson@avon.org DocuSign Envelope ID: 2763A202-10C6-43BF-9425-955D7D2CE436 ATTACHMENT A: State Grant Agreement SIGNATURE PAGE THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT Each person signing this Agreement represents and warrants that the signer is duly authorized to execute this Agreement and to bind the Party authorizing such signature. GRANTEE TOWN OF AVON __________________________________________ __________________________________________ By: Print Name of Authorized Individual Date: _________________________ STATE OF COLORADO Jared S. Polis, Governor Department of Transportation Shoshana M. Lew, Executive Director __________________________________________ __________________________________________ By: David Krutsinger, Director Division of Transit and Rail Date: _________________________ 2nd State or Grantee Signature if needed __________________________________________ __________________________________________ By: Print Name of Authorized Individual Date: _________________________ LEGAL REVIEW Philip J. Weiser, Attorney General __________________________________________ By: Assistant Attorney General Date: __________________________ In accordance with §24-30-202, C.R.S., this Agreement is not valid until signed and dated below by the State Controller or an authorized delegate. STATE CONTROLLER Robert Jaros, CPA, MBA, JD ___________________________________________ By: Department of Transportation Effective Date:_____________________ DocuSign Envelope ID: 2763A202-10C6-43BF-9425-955D7D2CE436 ATTACHMENT A: State Grant Agreement TABLE OF CONTENTS 1. PARTIES................................................................................................................................................. 3 2. TERM AND EFFECTIVE DATE .......................................................................................................... 3 3. DEFINITIONS ........................................................................................................................................ 4 4. STATEMENT OF WORK ...................................................................................................................... 6 5. PAYMENTS TO GRANTEE ................................................................................................................. 6 6. REPORTING - NOTIFICATION ........................................................................................................... 7 7. GRANTEE RECORDS ........................................................................................................................... 8 8. CONFIDENTIAL INFORMATION - STATE RECORDS .................................................................... 9 9. CONFLICTS OF INTEREST ............................................................................................................... 10 10. INSURANCE ........................................................................................................................................ 10 11. BREACH OF AGREEMENT ............................................................................................................... 12 12. REMEDIES ........................................................................................................................................... 12 13. DISPUTE RESOLUTION .................................................................................................................... 13 14. NOTICES and REPRESENTATIVES .................................................................................................. 13 15. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION ...................................................... 14 16. GENERAL PROVISIONS .................................................................................................................... 14 17. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3) ..................................... 16 1. PARTIES This Agreement is entered into by and between Grantee named on the Cover Page for this Agreement (the “Grantee”), and the STATE OF COLORADO acting by and through the State agency named on the Cover Page for this Agreement (the “State”). Grantee and the State agree to the terms and conditions in this Agreement. 2. TERM AND EFFECTIVE DATE A. Effective Date This Agreement shall not be valid or enforceable until the Effective Date, and the Grant Funds shall be expended by the Fund Expenditure End Date shown on the Cover Page for this Agreement. The State shall not be bound by any provision of this Agreement before the Effective Date, and shall have no obligation to pay Grantee for any Work performed or expense incurred before the Effective Date, except as described in §5.D, or after the Fund Expenditure End Date. If the Work will be performed in multiple phases , the period of performance start and end date of each phase is detailed under the Project Schedule in Exhibit A. B. Initial Term The Parties’ respective performances under this Agreement shall commence on the Agreement Performance Beginning Date shown on the Cover Page for this Agreement and shall terminate on the Initial Agreement Expiration Date shown on the Cover Page for this Agreement (the “Initial Term”) unless sooner terminated or further extended in accordance with the terms of this Agreement. C. Extension Terms - State’s Option The State, at its discretion, shall have the option to extend the performance under this Agreement beyond the Initial Term for a period, or for successive periods, of one year or less at the same rates and under the same terms specified in this Agreement (each such period an “Extension Term”). In order to exercise this option, the State shall provide written notice to Grantee in a form substantially equivalent to Sample Option Letter attached to this Agreement. D. End of Term Extension If this Agreement approaches the end of its Initial Term, or any Extension Term then in place, the State, at its discretion, upon written notice to Grantee in a form substantially equivalent to the Sample Option Letter attached to this Agreement, may unilaterally extend such Initial Term or Extension Term for a period not to exceed two months (an “End of Term Extension”), regardless of whether additional Extension Terms are available or not. The provisions of this Agreement in effect whe n such notice is given shall remain in effect during the End of Term Extension. The End of Term Extension shall automatically terminate upon execution of a replacement Agreement or modification extending the total term of this Agreement . DocuSign Envelope ID: 2763A202-10C6-43BF-9425-955D7D2CE436 ATTACHMENT A: State Grant Agreement E. Early Termination in the Public Interest The State is entering into this Agreement to serve the public interest of the State of Colorado as determined by its Governor, General Assembly, or Courts. If this Agreement ceases to further the public interest of the State, the State, in its discretion, may terminate this Agreement in whole or in part. A determination that this Agreement should be terminated in the public interest shall not be equivalent to a State right to terminate for convenience. This subsection shall not apply to a termination of this Agreement by the State for Breach of Agreement by Grantee, which shall be governed by §12.A.i. i. Method and Content The State shall notify Grantee of such termination in accordance with §14. The notice shall specify the effective date of the termination and whether it affects all or a portion of this Agreement, and shall include, to the extent practicable, the public interest justification for the termination. ii. Obligations and Rights Upon receipt of a termination notice for termination in the public interest, Grantee shall be subject to the rights and obligations set forth in §12.A.i.a. iii. Payments If the State terminates this Agreement in the public interest, the State shall pay Grantee an amount equal to the percentage of the total reimbursement payable under this Agreement that corresponds to the percentage of Work satisfactorily completed and accepted, as determined by the State, less payments previously made. Additionally, if this Agreement is less than 60% completed, as determined by the State, the State may reimburse Grantee for a portion of actual out -of-pocket expenses, not otherwise reimbursed under this Agreement, incurred by Grantee which are directly attributable to the uncompleted portion of Grantee’s obligations, provided that the sum of any and all reimbursement shall not exceed the Grant Maximum Amount payable to Grantee hereunder. F. Grantee’s Termination Under State Requirements Grantee may request termination of this Grant by sending notice to the State, which includes the reasons for the termination and the effective date of the termination. If this Grant is terminated in this manner, then Grantee shall return any advanced payments made for work that will not be performed prior to the effective date of the termination. 3. DEFINITIONS The following terms shall be construed and interpreted as follows: A. “Agreement” means this agreement, including all attached Exhibits, all documents incorporated by reference, all referenced statutes, rules and cited authorities, and any future modifications thereto. B. “Breach of Agreement” means the failure of a Party to perform any of its obligations in accordance with this Agreement, in whole or in part or in a timely or satisfactory manner. The institution of proc eedings under any bankruptcy, insolvency, reorganization or similar law, by or against Grantee, or the appointment of a receiver or similar officer for Grantee or any of its property, which is not vacated or fully stayed within 30 days after the institution of such proceeding, shall also constitute a breach. If Grantee is debarred or suspended under §24-109-105, C.R.S., at any time during the term of this Agreement, then such debarment or suspension shall constitute a breach. C. “Budget” means the budget for the Work described in Exhibit A. D. “Business Day” means any day other than Saturday, Sunday, or a legal holiday as listed in §24 -11-101(1), C.R.S. E. “CORA” means the Colorado Open Records Act, §§24 -72-200.1, et seq., C.R.S. F. “Deliverable” means the outcome to be achieved or output to be provided, in the form of a tangible or intangible Good or Service that is produced as a result of Grantee’s Work that is intended to be delivered by Grantee. G. “Effective Date” means the date on which this Agreement is approved and signed by the Colorado State Controller or designee, as shown on the Signature Page for this Agreement. H. “End of Term Extension” means the time period defined in §2.D. DocuSign Envelope ID: 2763A202-10C6-43BF-9425-955D7D2CE436 ATTACHMENT A: State Grant Agreement I. “Exhibits” means the exhibits and attachments included with this Agreement as shown on the Cover Page for this Agreement. J. “Extension Term” means the time period defined in §2.C. K. “Goods” means any movable material acquired, produced, or delivered by Grantee as set forth in this Agreement and shall include any movable material acquired, produced, or delivered by Grantee in connection with the Services. L. “Grant Funds” means the funds that have been appropriated, designated, encumbered, or otherwise made available for payment by the State under this Agreement. M. “Grant Maximum Amount” means an amount equal to the total of Grant Funds for this Agreement. N. “Incident” means any accidental or deliberate event that results in or constitutes an imminent threat of the unauthorized access, loss, disclosure, modification, disruption, or destruction of any communications or information resources of the State, which are included as part of the Work, as described in §§24-37.5-401, et seq., C.R.S. Incidents include, without limitation (i) successful attempts to gain unauthorized access to a State system or State Records regardless of where such information is located; (ii) unwanted disruption or denial of service; (iii) the unauthorized use of a State system for the processing or storage of data; or (iv) changes to State system hardware, firmware, or software characteristics without the State’s knowledge, instruction, or consent. O. “Initial Term” means the time period defined in §2.B. P. “Matching Funds” (Local Funds) means the funds provided by Grantee as a match required to receive the Grant Funds. Q. “Party” means the State or Grantee, and “Parties” means both the State and Grantee. R. “PII” means personally identifiable information including, without limitation, any information maintained by the State about an individual that can be used to distinguish or trace an individual’s identity, such as name, social security number, date and place of birth, mother‘s maiden name, or biometric records. PII includes, but is not limited to, all information defined as personally identifiable information in §§24-72-501 and 24- 73-101, C.R.S. S. “Services” means the services to be performed by Grantee as set forth in this Agreement, and shall include any services to be rendered by Grantee in connection with the Goods. T. “State Confidential Information” means any and all State Records not subject to disclosure under CORA. State Confidential Information shall include, but is not limited to PII, and State personnel records not subject to disclosure under CORA. State Confidential Information shall not include information or data concerning individuals that is not deemed confidential but nevertheless belongs to the State, which has been communicated, furnished, or disclosed by the State to Grantee which (i) is subject to disclosure pursuant to CORA; (ii) is already known to Grantee without restrictions at the time of its disclosure to Grantee; (iii) is or subsequently becomes publicly available without breach of any obligation owed by Grantee to the State; (iv) is disclosed to Grantee, without confidentiality obligations, by a third party who has the right to disclose such information; or (v) was independently developed without reliance on any State Confidential Information. U. “State Fiscal Rules” means the fiscal rules promulgated by the Colorado State Controller pursuant to §24- 30-202(13)(a), C.R.S. V. “State Fiscal Year” means a 12 month period beginning on July 1 of each calendar year and ending on June 30 of the following calendar year. If a single calendar year follows the term, then it means the State Fiscal Year ending in that calendar year. W. “State Records” means any and all State data, information, and records, regardless of physical form. X. “Subcontractor” means any third party engaged by Grantee to aid in performance of the Work. “Subcontractor” also includes sub -grantees of Grant Funds. Y. “Work” means the Goods delivered and Services performed pursuant to this Agreement. Z. “Work Product” means the tangible and intangible results of the Work, whether finished or unfinished, including drafts. Work Product includes, but is not limited to, documents, text, software (including source code), research, reports, proposals, specifications, plans, notes, studies, data, images, photographs, negatives, pictures, drawings, designs, models, surveys, maps, materials, ideas, concepts, know-how, information, and DocuSign Envelope ID: 2763A202-10C6-43BF-9425-955D7D2CE436 ATTACHMENT A: State Grant Agreement any other results of the Work. “Work Product” does not include any material that was developed prior to the Effective Date that is used, without modification, in the performance of the Work. Any other term used in this Agreement that is defined elsewhere in this Agreement or in an Exhibit shall be construed and interpreted as defined in that section. 4. STATEMENT OF WORK Grantee shall complete the Work as described in this Agreement and in accordance with the provisions of Exhibit A. The State shall have no liability to compensate Grantee for the delivery of any goods or the performance of any services that are not specifically set forth in this Agreement. 5. PAYMENTS TO GRANTEE A. Grant Maximum Amount Payments to Grantee are limited to the unpaid, obligated balance of the Grant Funds. The State shall not pay Grantee any amount under this Agreement that exceeds the Grant Maximum Amount for that State Fiscal Year shown on the Cover Page of this Agreement as “FASTER Funds Maximum Amount”. B. Payment Procedures i. Invoices and Payment a. The State shall pay Grantee in the amounts and in accordance with the conditions set forth in Exhibit A. b. Grantee shall initiate payment requests by invoice to the State, in a form and manner approved by the State. c. Any advance payment allowed under this Agreement, shall comply with State Fiscal Rules and be made in accordance with the provisions of this Agreement and its Exhibits. Eligibility and submission for advance payment is subject to State approval and must include approved documentation in the form and manner set forth and approved by the State. d. The State shall pay each invoice within 45 days following the State’s receipt of that invoice, so long as the amount invoiced correctly represents Work completed by Grantee and previously accepted by the State during the term that the invoice covers. If the State deter mines that the amount of any invoice is not correct, then Grantee shall make all changes necessary to correct that invoice . e. The acceptance of an invoice shall not constitute acceptance of any Work performed or Deliverables provided under this Agreement. ii. Interest Amounts not paid by the State within 45 days of the State’s acceptance of the invoice shall bear interest on the unpaid balance beginning on the 45th day at the rate of 1% per month, as required by §24 -30- 202(24)(a), C.R.S., until paid in full; provided, however, that interest shall not accrue on unpaid amounts that the State disputes in writing. Grantee shall invoice the State separately for accrued interest on delinquent amounts, and the invoice shall reference the delinquent payment, the number of days’ interest to be paid and the interest rate. iii. Payment Disputes If Grantee disputes any calculation, determination or amount of any payment, Grantee shall notify the State in writing of its dispute within 30 days following the earlier to occur of Grantee’s receipt of the payment or notification of the determination or calculation of the payment by the State. The State will review the information presented by Grantee and may make changes to its determination based on this review. The calculation, determination or payment amount that results from the State’s review shall not be subject to additional dispute under this subsection. No payment subject to a dispute under this subsection shall be due until after the State has concluded its review, and the State shall not pay any interest on any amount during the period it is subject to dispute under this subsection . iv. Available Funds-Contingency-Termination The State is prohibited by law from making commitments beyond the term of the current Sta te Fiscal Year. Payment to Grantee beyond the current State Fiscal Year is contingent on the appropriation and continuing availability of Grant Funds in any subsequent year (as provided in the Colorado Special Provisions). If federal funds or funds from any other non-State funds constitute all or some of the Grant DocuSign Envelope ID: 2763A202-10C6-43BF-9425-955D7D2CE436 ATTACHMENT A: State Grant Agreement Funds, the State’s obligation to pay Grantee shall be contingent upon such non-State funding continuing to be made available for payment. Payments to be made pursuant to this Agreement shall be ma de only from Grant Funds, and the State’s liability for such payments shall be limited to the amount remaining of such Grant Funds. If State, federal or other funds are not appropriated, or otherwise become unavailable to fund this Agreement, the State may, upon written notice, terminate this Agreement, in whole or in part, without incurring further liability. The State shall, however, remain obligated to pay for Services and Goods that are delivered and accepted prior to the effective date of notice of termination, and this termination shall otherwise be treated as if this Agreement were terminated in the public interest as described in §2.E. C. Matching Funds Grantee shall provide Matching Funds as provided in §5.A and Exhibit A. Grantee shall have raised the full amount of Matching Funds prior to the Effective Date and shall report to the State regarding the status of such funds upon request. Grantee’s obligation to pay all or any part of any Matching Funds, whether direct or contingent, only extends to funds duly and lawfully appropriated for the purposes of this Agreement by the authorized representatives of Grantee and paid into Grantee’s treasury or bank account. Grantee represents to the State that the amount designated “Grantee’s Matching Funds” in Exhibit A has been legally appropriated for the purposes of this Agreement by its authorized representatives and paid into its treasury or bank account. Grantee does not by this Agreement irrevocably pledge present cash reserves for payments in future fiscal years, and this Agreement is not intended to create a multiple-fiscal year debt of Grantee. If Grantee is a public entity, Grantee shall not pay or be liable for any claimed interest, late charges, fees, taxes or penalties of any nature, except as required by Grantee’s laws or policies. D. Reimbursement of Grantee Costs i. Any costs incurred by Grantee prior to the Effective Date shall not be reimbursed. ii. The State shall reimburse Grantee’s allowable costs, not exceeding the Grant Maximum Amount shown on the Cover Page of this Agreement and on Exhibit A for all allowable costs described in this Agreement and shown in Exhibit A, except that Grantee may adjust the amounts between each line item of Exhibit A without formal modification to this Agreement as long as the Grantee provides notice to the State of the change, the change does not modify the Grant Maximum Amount of this Agreement or the Grant Maximum Amount for any State Fiscal Year, and the change does not modify any requirements of the Work. iii. The State shall only reimburse allowable costs described in this Agreement and shown in the Budget if those costs are: a. Reasonable and necessary to accomplish the Work and for the Goods and Services provided; and b. Equal to the actual net cost to Grantee (i.e. the price paid minus any items of value received by Grantee that reduce the cost actually incurred.) iv. Grantee’s costs for Work performed after the Fund Expenditure End Date shown on the Signature and Cover Page for this Agreement, or after any phase performance period end date for a respective phase of the Work, shall not be reimbursable. Grantee shall initiate any payment request by submitting invoices to the State in the form and manner set forth and approved by the State . E. Close-Out Grantee shall close out this Award within 45 days after the Fund Expenditure End Date shown on the Cover Page for this Agreement. To complete close-out, Grantee shall submit to the State all Deliverables (including documentation) as defined in this Agreement and Grantee’s final reimbursement request or invoice. The State will withhold 5% of allowable costs until all final documentation has been submitted and accepted by the State as substantially complete. 6. REPORTING - NOTIFICATION A. Quarterly Reports In addition to any reports required pursuant to any other Exhibit, for any Agreement having a term longer than three months, Grantee shall submit, on a quarterly basis, a written report specifying progress made for each specified performance measure and standard in this Agreement. Such progress report shall be in accordance with the procedures developed and prescribed by the State. Progress reports shall be submitted DocuSign Envelope ID: 2763A202-10C6-43BF-9425-955D7D2CE436 ATTACHMENT A: State Grant Agreement to the State not later than five Business Days following the end of each calendar quarter o r at such time as otherwise specified by the State. B. Litigation Reporting If Grantee is served with a pleading or other document in connection with an action before a court or other administrative decision making body, and such pleading or document relates to this Agreement or may affect Grantee’s ability to perform its obligations under this Agreement, Grantee shall, within 10 days after being served, notify the State of such action and deliver copies of such pleading or document to the State’s Principal Representative identified on the Cover Page for this Agreement. C. Performance and Final Status Grantee shall submit all financial, performance and other reports to the State no later than 45 calendar days after the end of the Initial Term if no Extensio n Terms are exercised, or the final Extension Term exercised by the State, containing an evaluation and review of Grantee’s performance and the final status of Grantee’s obligations hereunder. D. Violations Reporting Grantee shall disclose, in a timely manner, in writing to the State, all violations of State criminal law involving fraud, bribery, or gratuity violations potentially affecting the Federal Award. The State may impose any penalties for noncompliance allowed under 2 CFR Part 180 and 31 U.S.C. 332 1, which may include, without limitation, suspension or debarment. 7. GRANTEE RECORDS A. Maintenance Grantee shall make, keep, maintain, and allow inspection and monitoring by the State of a complete file of all records, documents, communications, notes and o ther written materials, electronic media files, and communications, pertaining in any manner to the Work and the delivery of Services (including, but not limited to, the operation of programs) or Goods hereunder (collectively, the “Grantee Records”). Grant ee shall maintain such records for a period of three years following the date of submission to the State of the final expenditure report, or if this Award is renewed quarterly or annually, from the date of the submission of each quarterly or annual report, respectively (the “Record Retention Period”). If any litigation, claim, or audit related to this Award starts before expiration of the Record Retention Period, the Record Retention Period shall extend until all litigation, claims, or audit findings have b een resolved and final action taken by the State or Federal Awarding Agency. The Federal Awarding Agency, a cognizant agency for audit, oversight or indirect costs, and the State, may notify Grantee in writing that the Record Retention Period shall be extended. For records for real property and equipment, the Record Retention Period shall extend three years following final disposition of such property. B. Inspection Grantee shall permit the State and any other duly authorized agent of the State to audit, inspect, examine, excerpt, copy and transcribe Grantee Records during the Record Retention Period. Grantee shall make Grantee Records available during normal business hours at Grantee’s office or place of business, or at other mutually agreed upon times or locations, upon no fewer than two Business Days’ notice from the State, unless the State determines that a shorter period of notice, or no notice, is necessary to protect the interests of the State. C. Monitoring The State and any other duly authorized agent of the State, in its discretion, may monitor Grantee’s performance of its obligations under this Agreement using procedures as determined by the State. The State shall have the right, in its sole discretion, to change its monitoring procedures and requ irements at any time during the term of this Agreement. The State shall monitor Grantee’s performance in a manner that does not unduly interfere with Grantee’s performance of the Work. D. Final Audit Report Grantee shall promptly submit to the State a copy of any final audit report of an audit performed on Grantee’s records that relates to or affects this Agreement or the Work, whether the audit is conducted by Grantee or a third party. DocuSign Envelope ID: 2763A202-10C6-43BF-9425-955D7D2CE436 ATTACHMENT A: State Grant Agreement 8. CONFIDENTIAL INFORMATION - STATE RECORDS A. Confidentiality Grantee shall keep confidential, and cause all Subcontractors to keep confidential, all State Records, unless those State Records are publicly available. Grantee shall not, without prior written approval of the State, use, publish, copy, disclose to any third party, or permit the use by any third party of any State Records, except as otherwise stated in this Agreement, permitted by law or approved in writing by the State. Grantee shall provide for the security of all State Confidential Information in accordance with all applicable laws, rules, policies, publications, and guidelines. Grantee shall immediately forward any request or demand for State Records to the State’s Principal Representative identified on the Cover Page of this Agreement . B. Other Entity Access and Nondisclosure Agreements Grantee may provide State Records to its agents, employees, assigns and Subcontractors as necessary to perform the Work, but shall restrict access to State Confidential Information to those agents, employees, assigns and Subcontractors who require access to perform their obligations under this Agreement. Grantee shall ensure all such agents, employees, assigns, and Subcontractors sign agreements containing nondisclosure provisions at least as protective as those in this Agreement, and that the nondisclosure provisions are in force at all times the agent, employee, assign or Subcontractor has access to any State Confidential Information. Grantee shall provide copies of those signed nondisclosure provisions to the State upon execution of the nondisclosure provisions if requested by the State. C. Use, Security, and Retention Grantee shall use, hold and maintain State Confidential Information in compliance with any and all applicable laws and regulations only in facilities located within the United States, and shall maintain a secure environment that ensures confidentiality of all State Confidential Information. Grantee shall provide the State with access, subject to Grantee’s reasonable security requirements, for purposes of inspecting a nd monitoring access and use of State Confidential Information and evaluating security control effectiveness. Upon the expiration or termination of this Agreement, Grantee shall return State Records provided to Grantee or destroy such State Records and certify to the State that it has done so, as directed by the State. If Grantee is prevented by law or regulation from returning or destroying State Confidential Information, Grantee warrants it will guarantee the confidentiality of, and cease to use, such Sta te Confidential Information. D. Incident Notice and Remediation If Grantee becomes aware of any Incident, Grantee shall notify the State immediately and cooperate with the State regarding recovery, remediation, and the necessity to involve law enforcement, as determined by the State. Unless Grantee can establish that Grantee, and its agents, employees, and Subcontractors are not the cause or source of the Incident, Grantee shall be responsible for the cost of notifying each person who may have been impacted by the Incident. After an Incident, Grantee shall take steps to reduce the risk of incurring a similar type of Incident in the future as directed by the State, which may include, but is not limited to, developing and implementing a remediation plan that is approved by the State at no additional cost to the State. The State may adjust or direct modifications to this plan, in its sole discretion and Grantee shall make all modifications as directed by the State. If Grantee cannot produce its analysis and plan within the allotted time, the State, in its sole discretion, may perform such analysis and produce a remediation plan, and Grantee shall reimburse the State for the reasonable costs thereof. The State may, in its sole discretion and at Grantee’s sole expense, require Grantee to engage the services of an independent, qualified, State-approved third party to conduct a security audit. Grantee shall provide the State with the results of such audit and evidence of Grantee’s planned remediation in response to any negative findings. E. Data Protection and Handling Grantee shall ensure that all State Records and Work Product in the possession of Grantee or any Subcontractors are protected and handled in accordance with the requirements of this Agreement, includin g the requirements of any Exhibits hereto, at all times. As used in this section, the protections afforded Work Product only apply to Work Product that requires confidential treatment. F. Safeguarding PII If Grantee or any of its Subcontractors will or ma y receive PII under this Agreement, Grantee shall provide for the security of such PII, in a manner and form acceptable to the State, including, without limitation, State non-disclosure requirements, use of appropriate technology, security practices, computer access security, data access security, data storage encryption, data transmission encryption, security inspections, and audits. DocuSign Envelope ID: 2763A202-10C6-43BF-9425-955D7D2CE436 ATTACHMENT A: State Grant Agreement Grantee shall be a “Third-Party Service Provider” as defined in §24-73-103(1)(i), C.R.S., and shall maintain security procedures and practices consistent with §§24-73-101, et seq., C.R.S. 9. CONFLICTS OF INTEREST A. Actual Conflicts of Interest Grantee shall not engage in any business or activities, or maintain any relationships that conflict in any way with the full performance of the obligations of Grantee under this Agreement. Such a conflict of interest would arise when a Grantee or Subcontractor’s employee, officer or agent were to offer or provide any tangible personal benefit to an employee of the State, or any member of his or her immediate family or his or her partner, related to the award of, entry into or management or oversight of this Agreement. B. Apparent Conflicts of Interest Grantee acknowledges that, with respect to this Agreement, even the appearance of a conflict of interest shall be harmful to the State’s interests. Absent the State’s prior written approval, Grantee shall refrain from any practices, activities or relationships that reasonably appear to be in conflict with the full performance of Grantee’s obligations under this Agreement. C. Disclosure to the State If a conflict or the appearance of a conflict arises, or if Grantee is uncertain whether a conflict or the appearance of a conflict has arisen, Grantee shall submit to the State a disclosure statement setting forth the relevant details for the State’s consideration. Failure to promptly submit a disclosure statement or to follow the State’s direction in regard to the actual or apparent conflict constitutes a breach of this Agreement. D. Grantee acknowledges that all State employees are subject to the ethical principles described in §24-18-105, C.R.S. Grantee further acknowledges that State employees may be subject to the requirements of §24-18-105, C.R.S., with regard to this Agreement. For the avoidance of doubt, an actual or apparent conflict of interest shall exist if Grantee employs or contracts with any State employee, any former State employee within six months following such employee’s termination of employment with the State, or any immediate family member of such current or former State employee. Grantee shall provide a disclosure statement as described in §9.C. no later than ten days following entry into a contractual or employment relationship as described in this section. Failure to timely submit a disclosure statement shall constitute a Breach of Agreement. Grantee may also be subject to such penalties as are allowed by law. 10. INSURANCE Grantee shall obtain and maintain, and ensure that each Subcontractor shall obtain and maintain, insurance as specified in this section at all times during the term of this Agreement. All insurance policies required by this Agreement that are not provided through self-insurance shall be issued by insurance companies as approved by the State. A. Workers’ Compensation Workers’ compensation insurance as required by state statute, and employers’ liability insurance covering all Grantee or Subcontractor employees acting within the course and scope of their employment . B. General Liability Commercial general liability insurance covering premises operations, fire damage, independent contractors, products and completed operations, blanket contractual liability, personal injury, and advertising liability with minimum limits as follows: i. $1,000,000 each occurrence; ii. $1,000,000 general aggregate; iii. $1,000,000 products and completed operations aggregate; and iv. $50,000 any 1 fire. C. Automobile Liability Automobile liability insurance covering any auto (including owned, hired and non -owned autos) with a minimum limit of $1,000,000 each accident combined single limit . DocuSign Envelope ID: 2763A202-10C6-43BF-9425-955D7D2CE436 ATTACHMENT A: State Grant Agreement D. Protected Information Liability insurance covering all loss of State Confidential Information, such as PII, PHI, PCI, Tax Information, and CJI, and claims based on alleged violations of privacy rights through improper use or disclosure of protected information with minimum limits as follows : i. $1,000,000 each occurrence; and ii. $2,000,000 general aggregate. E. Professional Liability Insurance Professional liability insurance covering any damages caused by an error, omission or any negligent act with minimum limits as follows: i. $1,000,000 each occurrence; and ii. $1,000,000 general aggregate. F. Crime Insurance Crime insurance including employee dishonesty coverage with minimum limits as follows: i. $1,000,000 each occurrence; and ii. $1,000,000 general aggregate. G. Additional Insured The State shall be named as additional insured on all commercial general lia bility policies (leases and construction contracts require additional insured coverage for completed operations) required of Grantee and Subcontractors. H. Primacy of Coverage Coverage required of Grantee and each Subcontractor shall be primary over any in surance or self-insurance program carried by Grantee or the State. I. Cancellation All insurance policies shall include provisions preventing cancellation or non -renewal, except for cancellation based on non-payment of premiums, without at least 30 days prior notice to Grantee and Grantee shall forward such notice to the State in accordance with §14 within 7 days of Grantee’s receipt of such notice. J. Subrogation Waiver All insurance policies secured or maintained by Grantee or its Subcontractors in relation to this Agreement shall include clauses stating that each carrier shall waive all rights of recovery under subrogation or otherwise against Grantee or the State, its agencies, institutions, organizations, officers, agents, employees, and volunteers. K. Public Entities If Grantee is a "public entity" within the meaning of the Colorado Governmental Immunity Act, §24 -10-101, et seq., C.R.S. (the “GIA”), Grantee shall maintain, in lieu of the liability insurance requirements stated above, at all times during the term of this Agreement such liability insurance, by commercial policy or self - insurance, as is necessary to meet its liabilities under the GIA. If a Subcontractor is a public entity within the meaning of the GIA, Grantee shall ensure that the Subcontractor maintain at all times during the terms of this Grantee, in lieu of the liability insurance requirements stated above, such liability insurance, by commercial policy or self-insurance, as is necessary to meet the Subcontractor’s obligations unde r the GIA. L. Certificates For each insurance plan provided by Grantee under this Agreement, Grantee shall provide to the State certificates evidencing Grantee’s insurance coverage required in this Agreement prior to the Effective Date. Grantee shall provide to the State certificates evidencing Subcontractor insurance coverage required under this Agreement prior to the Effective Date, except that, if Grantee’s subcontract is not in effect as of the Effective Date, Grantee shall provide to the State certific ates showing Subcontractor insurance coverage required under this Agreement within seven Business Days following Grantee’s execution of the subcontract. No later than 15 days before the expiration date of Grantee’s or any Subcontractor’s coverage, Grantee shall deliver to the State certificates of insurance evidencing renewals of coverage. At any other time during the DocuSign Envelope ID: 2763A202-10C6-43BF-9425-955D7D2CE436 ATTACHMENT A: State Grant Agreement term of this Agreement, upon request by the State, Grantee shall, within seven Business Days following the request by the State, supply to the State evidence satisfactory to the State of compliance with the provisions of this section. 11. BREACH OF AGREEMENT In the event of a Breach of Agreement, the aggrieved Party shall give written notice of Breach of Agreement to the other Party. If the notified Party does not cure the breach, at its sole expense, within 30 days after the delivery of written notice, the Party may exercise any of the remedies as described in §12 for that Party. Notwithstanding any provision of this Agreement to the contrary, the State, in its discretion, need not provide notice or a cure period and may immediately terminate this Agreement in whole or in part or institute any other remedy in this Agreement in order to protect the public interest of the State; or if Grantee is debar red or suspended under §24-109-105, C.R.S., the State, in its discretion, need not provide notice or cure period and may terminate this Agreement in whole or in part or institute any other remedy in this Agreement as of the date that the debarment or suspension takes effect. 12. REMEDIES A. State’s Remedies If Grantee is in breach under any provision of this Agreement and fails to cure such breach, the State, following the notice and cure period set forth in §11, shall have all of the remedies listed in this section in addition to all other remedies set forth in this Agreement or at law. The State may exercise any or all of the remedies available to it, in its discretion, concurrently or consecutively. i. Termination for Breach of Agreement In the event of Grantee’s uncured breach, the State may terminate this entire Agreement or any part of this Agreement. Grantee shall continue performance of this Agreement to the extent not terminated, if any. a. Obligations and Rights To the extent specified in any termination notice, Grantee shall not incur further obligat ions or render further performance past the effective date of such notice, and shall terminate outstanding orders and subcontracts with third parties. However, Grantee shall complete and deliver to the State all Work not cancelled by the termination notice, and may incur obligations as necessary to do so within this Agreement’s terms. At the request of the State, Grantee shall assign to the State all of Grantee’s rights, title, and interest in and to such terminated orders or subcontracts. Upon termination, Grantee shall take timely, reasonable and necessary action to protect and preserve property in the possession of Grantee but in which the State has an interest. At the State’s request, Grantee shall return materials owned by the State in Grantee’s possession at the time of any termination. Grantee shall deliver all completed Work Product and all Work Product that was in the process of completion to the State at the State’s request. b. Payments Notwithstanding anything to the contrary, the State shall only pay Grantee for accepted Work received as of the date of termination. If, after termination by the State, the State agrees that Grantee was not in breach or that Grantee’s action or inaction was excusable, such termination shall be treated as a termination in the public interest, and the rights and obligations of the Parties shall be as if this Agreement had been terminated in the public interest under §2.E. c. Damages and Withholding Notwithstanding any other remedial action by the State, Grantee shall re main liable to the State for any damages sustained by the State in connection with any breach by Grantee, and the State may withhold payment to Grantee for the purpose of mitigating the State’s damages until such time as the exact amount of damages due to the State from Grantee is determined. The State may withhold any amount that may be due Grantee as the State deems necessary to protect the State against loss including, without limitation, loss as a result of outstanding liens and excess costs incurred by the State in procuring from third parties replacement Work as cover . ii. Remedies Not Involving Termination The State, in its discretion, may exercise one or more of the following additional remedies: DocuSign Envelope ID: 2763A202-10C6-43BF-9425-955D7D2CE436 ATTACHMENT A: State Grant Agreement a. Suspend Performance Suspend Grantee’s performance with respect to all or any portion of the Work pending corrective action as specified by the State without entitling Grantee to an adjustment in price or cost or an adjustment in the performance schedule. Grantee shall promptly cease performing Work and incurring costs in accordance with the State’s directive, and the State shall not be liable for costs incurred by Grantee after the suspension of performance. b. Withhold Payment Withhold payment to Grantee until Grantee corrects its Work. c. Deny Payment Deny payment for Work not performed, or that due to Grantee’s actions or inactions, cannot be performed or if they were performed are reasonably of no value to the State; provided, that any denial of payment shall be equal to the value of the obligations not performed. d. Removal Demand immediate removal of any of Grantee’s employees, agents, or Subcontractors from the Work whom the State deems incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable or whose continued relation to this Agreement is deemed by the State to be contrary to the public interest or the State’s best interest. e. Intellectual Property If any Work infringes, or if the State in its sole discretion determines that any Work is likely to infringe, a patent, copyright, trademark, trade secret or other intellectual property right, Grantee shall, as approved by the State (i) secure that right to use such Work for the State and Grantee; (ii) replace the Work with noninfringing Work or modify the Work so that it becomes nonin fringing; or, (iii) remove any infringing Work and refund the amount paid for such Work to the State . B. Grantee’s Remedies If the State is in breach of any provision of this Agreement and does not cure such breach, Grantee, following the notice and cure period in §11 and the dispute resolution process in §13 shall have all remedies available at law and equity. 13. DISPUTE RESOLUTION A. Initial Resolution Except as herein specifically provided otherwise, disputes concerning the performance of this Agreement which cannot be resolved by the designated Agreement representatives shall be referred in writing to a senior departmental management staff member designated by the State and a senior manager designated by Grantee for resolution. B. Resolution of Controversies If the initial resolution described in §13.A fails to resolve the dispute within 10 Business Days, Grantee shall submit any alleged breach of this Agreement by the State to the Procurement Official of the State Agency named on the Cover Page of this Agreement as described in §24-101-301(30), C.R.S., for resolution following the same resolution of controversies process as described in §§24 -106-109, and 24-109-101.1 through 24-109-505, C.R.S., (collectively, the “Resolution Statutes”), except that if Grantee wishes to challenge any decision rendered by the Procurement Official, Grantee’s challenge shall be an appeal to the executive director of the Department of Personnel and Administration, or their delegate, in the same manner as described in the Resolution Statutes before Grantee pursues any further action. Except as otherwise stated in this Section, all requirements of the Resolution Statutes shall apply including, without limitation, time limitations regardless of whether the Colorado Procurement Code ap plies to this Agreement. 14. NOTICES and REPRESENTATIVES Each individual identified as a Principal Representative on the Cover Page for this Agreement shall be the principal representative of the designating Party. All notices required or permitted to be given under this Agreement shall be in writing, and shall be delivered (A) by hand with receipt required, (B) by certified or registered mail to such Party’s principal representative at the address set forth on the Cover Page for this Agreement or (C) as an email with read receipt requested to the principal representative at the email address, if DocuSign Envelope ID: 2763A202-10C6-43BF-9425-955D7D2CE436 ATTACHMENT A: State Grant Agreement any, set forth on the Cover Page for this Agreement. If a Party delivers a notice to another through email and the email is undeliverable, then, unless the Party has been provided with an alternate email contact, the Party delivering the notice shall deliver the notice by hand with receipt required or by certified or registered mail to such Party’s principal representative at the address set forth on the Cover Page for this Agreement. Either Party may change its principal representative or principal representative contact information, or may designate specific other individuals to receive certain types of notices in addition to or in lieu of a principal representative , by notice submitted in accordance with this section without a formal amendment to this Agreement. Unless otherwise provided in this Agreement, notices shall be effective upon delivery of the written notice. 15. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION A. Work Product Whether or not Grantee is under contract with the State at the time, Grantee shall execute applications, assignments, and other documents, and shall render all other reasonable assistance requested by the State, to enable the State to secure patents, copyrights, licenses and other intellectual property rights related to the Work Product. The Parties intend the Work Product to be works made for hire. Grantee assigns to the State and its successors and assigns, the entire right, title, and interest in and to all causes of action, either in law or in equity, for past, present, or future infringement of intellectual property rights related to the Work Product and all works based on, derived from, or incorporating the Work Product . B. Exclusive Property of the State Except to the extent specifically provided elsewhere in this Agreement, all State Records, documents, text, software (including source code), research, reports, proposals, specifications, plans, notes, studies, data, images, photographs, negatives, pictures, drawings, designs, models, surveys, maps, materials, ideas, concepts, know-how, and information provided by or on behalf of the State to Grantee are the exclusive property of the State (collectively, “State Materials”). Grantee shall not use, willingly allow, cause or permit Work Product or State Materials to be used for any purpose other than the performance of Grantee’s obligations in this Agreement without the prior written consent of the State. Upon termination of this Agreement for any reason, Grantee shall provide all Work Product and State Materials to the State in a form and manner as directed by the State. C. Exclusive Property of Grantee Grantee retains the exclusive rights, title, and ownership to any and all pre-existing materials owned or licensed to Grantee including, but not limited to, all pre-existing software, licensed products, associated source code, machine code, text images, audio and/or video, and third -party materials, delivered by Grantee under this Agreement, whether incorporated in a Deliverable or necessary to use a Deliverable (collectively, “Grantee Property”). Grantee Property shall be licensed to the State as set forth in this Agreement or a State approved license agreement: (i) entered into as exhibits to this Agreement, (ii) obtained by the State from the applicable third-party vendor, or (iii) in the case of open source software, the license terms set forth in the applicable open source license agreement. 16. GENERAL PROVISIONS A. Assignment Grantee’s rights and obligations under this Agreement are personal and may not be transferred or assigned without the prior, written consent of the State. Any attempt at assignment or transfer without such consent shall be void. Any assignment or transfer of Grantee’s rights and obligations approved by the State shall be subject to the provisions of this Agreement. B. Subcontracts Grantee shall not enter into any subgrant or subcontract in connection with its obligations under this Agreement without providing notice to the State. The State may reject any such Subcontractor, and Grantee shall terminate any subcontract that is rejected by the State and shall not allow any Subcontractor to perform any work after that Subcontractor’s subcontract has been rejected by the State. G rantee shall submit to the State a copy of each such subgrant or subcontract upon request by the State. All subgrants and subcontracts entered into by Grantee in connection with this Agreement shall comply with all applicable federal and state laws and regulations, shall provide that they are governed by the laws of the State of Colorado, and shall be subject to all provisions of this Agreement. DocuSign Envelope ID: 2763A202-10C6-43BF-9425-955D7D2CE436 ATTACHMENT A: State Grant Agreement C. Binding Effect Except as otherwise provided in §16.A., all provisions of this Agreement, including the benefits and burdens, shall extend to and be binding upon the Parties’ respective successors and assigns . D. Authority Each Party represents and warrants to the other that the execution and delivery of this Agreement and the 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 secti ons (whether spelled out or using the § symbol), subsections, exhibits or other attachments, are references to sections, subsections, exhibits or other attachments contained herein or incorporated as a part hereof, unless otherwise noted . F. Counterparts This Agreement may be executed in multiple, identical, original counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. G. Entire Understanding This Agreement represents the complete integration of all understandings between the Parties related to the Work, and all prior representations and understandings related to the Work, oral or written, are merged into this Agreement. Prior or contemporaneous additions, deletions, or other changes to this Agreement shall not have any force or effect whatsoever, unless embodied herein . H. Digital Signatures If any signatory signs this Agreement using a digital signature in accordance with the Colorado State Controller Contract, Grant and Purchase Order Policies regarding the use of digital signatures issued under the State Fiscal Rules, then any agreement or consent to use digital signatures within the electronic system through which that signatory signed shall be incorporated into this Agreement by reference. I. Modification Except as otherwise provided in this Agreement, any modification to this Agreement shall only be effective if agreed to in a formal amendment to this Agreement, properly executed and approved in accordance with applicable Colorado State law and State Fiscal Rules. Modifications permitted under this Agreement, other than Agreement amendments, shall conform to the policies issued by the Colorado State Controller . J. Statutes, Regulations, Fiscal Rules, and Other Authority Any reference in this Agreement to a statute, regulation, State Fiscal Rule, fiscal policy or other authority shall be interpreted to refer to such authority then current, as may have been changed or amended since the Effective Date of this Agreement. K. External Terms and Conditions Notwithstanding anything to the contrary herein, the State shall not be subject to any provision included in any terms, conditions, or agreements appearing on Grantee’s or a Subcontractor’s website or any provision incorporated into any click-through or online agreements related to the Work unless that provision is specifically referenced in this Agreement. L. Severability The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect, provided that the Parties can continue to perform their obligations under this Agreement in accordance with the intent of this Agreement. M. Survival of Certain Agreement Terms Any provision of this Agreement that imposes an obligation on a Party after termination or expiration of this Agreement shall survive the termination or expiration of this Agreement and shall be enforceable by the other Party. N. Taxes The State is exempt from federal excise taxes under I.R.C. Chapter 32 (26 U.S.C., Subtitle D, Ch. 32) (Federal Excise Tax Exemption Certificate of Registry No. 84 -730123K) and from State and local government sales and use taxes under §§39-26-704(1), et seq., C.R.S. (Colorado Sales Tax Exemption Identification Number DocuSign Envelope ID: 2763A202-10C6-43BF-9425-955D7D2CE436 ATTACHMENT A: State Grant Agreement 98-02565). The State shall not be liable for the payment of any excise, sales, or use taxes, regardless of whether any political subdivision of the State imposes such taxes on Grantee. Grantee s hall be solely responsible for any exemptions from the collection of excise, sales or use taxes that Grantee may wish to have in place in connection with this Agreement. O. Third Party Beneficiaries Except for the Parties’ respective successors and assigns described in §16.A., this Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than the Parties. Enforcement of this Agreement and all rights and obligations hereunder are reserved solely to the Parties. Any services or benefits which third parties receive as a result of this Agreement are incidental to this Agreement, and do not create any rights for such third parties. P. Waiver A Party’s failure or delay in exercising any right, power, or privilege under this Agreement, whether explicit or by lack of enforcement, shall not operate as a waiver, nor shall any single or partial exercise of any right, power, or privilege preclude any other or further exercise of such right, power, or privilege . Q. CORA Disclosure To the extent not prohibited by federal law, this Agreement and the performance measures and standards required under §24-106-107, C.R.S., if any, are subject to public release through the CORA. R. Standard and Manner of Performance Grantee shall perform its obligations under this Agreement in accordance with the highest standards of care, skill and diligence in Grantee’s industry, trade, or profession. S. Licenses, Permits, and Other Authorizations. i. Grantee shall secure, prior to the Effective Date, and maintain at all times during the term of this Agreement, at its sole expense, all licenses, certifications, permits, and other authorizations required to perform its obligations under this Agreement, and shall ensure that all employees, agents an d Subcontractors secure and maintain at all times during the term of their employment, agency or Subcontractor, all license, certifications, permits and other authorizations required to perform their obligations in relation to this Agreement. ii. Grantee, if a foreign corporation or other foreign entity transacting business in the State of Colorado, shall obtain prior to the Effective Date and maintain at all times during the term of this Agreement, at its sole expense, a certificate of authority to transact business in the State of Colorado and designate a registered agent in Colorado to accept service of process. T. Federal Provisions Grantee shall comply with all applicable requirements of Exhibit C at all times during the term of this Agreement. 17. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3) These Special Provisions apply to all agreements except where noted in italics. A. STATUTORY APPROVAL. §24-30-202(1), C.R.S. This Agreement shall not be valid until it has been approved by the Colorado State Controller or designee. If this Agreement is for a Major Information Technology Project, as defined in §24 -37.5-102(2.6), C.R.S., then this Agreement shall not be valid until it has been approved by the State’s Chief Information Officer or designee.. B. FUND AVAILABILITY. §24-30-202(5.5), C.R.S. Financial obligations of the State payable after the current State Fiscal Year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. C. GOVERNMENTAL IMMUNITY. Liability for claims for injuries to persons or property arising from the negligence of the State, its departments, boards, commissions committees, bureaus, offices, employees and officials shall be controlled and limited by the provisions of the Colorado Governmental Immunity Act, §24-10-101, et seq., C.R.S.; the Federal Tort Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b), and the State’s risk management statutes, §§24-30-1501, et seq., C.R.S. No term or condition of this Agreement shall be construed or DocuSign Envelope ID: 2763A202-10C6-43BF-9425-955D7D2CE436 ATTACHMENT A: State Grant Agreement interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, contained in these statutes. D. INDEPENDENT CONTRACTOR. Grantee shall perform its duties hereunder as an independent contractor a nd not as an employee. Neither Grantee nor any agent or employee of Grantee shall be deemed to be an agent or employee of the State. Grantee shall not have authorization, express or implied, to bind the State to any agreement, liability or understanding, except as expressly set forth herein. Grantee and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise provide such coverage for Grantee or any of its agents or employees. Grantee shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this Agreement. Grantee shall (i) provide and keep in force workers’ compensation and unemployment compensation insurance in the amounts required by law, (ii) provide proof thereof when requested by the State, and (iii) be solely responsible for its acts and those of its employees and agents. E. COMPLIANCE WITH LAW. Grantee shall comply with all applicable federal and State laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices. F. CHOICE OF LAW, JURISDICTION, AND VENUE. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Agreement. Any provision included or incorporated herein by reference which conflicts with said laws, rules, and regulations shall be null and void. All suits or actions related to this Agreement shall be filed and proceedings held in the State of Colorado and exclusive venue shall be in the City and County of Denver. G. PROHIBITED TERMS. Any term included in this Agreement that requires the State to indemnif y or hold Grantee harmless; requires the State to agree to binding arbitration; limits Grantee’s liability for damages resulting from death, bodily injury, or damage to tangible property; or that conflicts with this provision in any way shall be void ab initio. Nothing in this Agreement shall be construed as a waiver of any provision of §24 -106-109, C.R.S. H. SOFTWARE PIRACY PROHIBITION. State or other public funds payable under this Agreement shall not be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. Grantee hereby certifies and warrants that, during the term of this Agreement and any extensions, Grantee has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that Grantee is in violation of this provision, the State may exercise any remedy available at law or in equity or under this Agreement, including, without limitation, immediate termination of this Agreement and any remedy consistent with federal copyright laws or applicable licensing restrictions. I. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. §§24-18-201 and 24-50-507, C.R.S. The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this Agreement. Grantee has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of Grantee’s services and Grantee shall not employ any person having such known interests. J. VENDOR OFFSET AND ERRONEOUS PAYMENTS. §§24-30-202(1) and 24-30-202.4, C.R.S. [Not applicable to intergovernmental agreements] Subject to §24-30-202.4(3.5), C.R.S., the State Controller may withhold payment under the State’s vendor offset intercept system for debts owed to State agencies for: (i) unpaid child support debts or child support arrearages; (ii) unpaid balances of tax, accrued interest, or other charges specified in §§39-21-101, et seq., C.R.S.; (iii) unpaid loans due to the Student Loan Division of the Department 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 Grantee in error for any reason, including, but not limited to, overpayments or improper payments, and unexpended or excess funds received by Grantee by deduction from subsequent payments under this Agreement, deduction from any payment due DocuSign Envelope ID: 2763A202-10C6-43BF-9425-955D7D2CE436 ATTACHMENT A: State Grant Agreement under any other contracts, grants or agreements between the State and Grantee, or by any other appropri ate method for collecting debts owed to the State. K. PUBLIC CONTRACTS FOR SERVICES. §§8-17.5-101, et seq., C.R.S. [Not applicable to agreements relating to the offer, issuance, or sale of securities, investment advisory services or fund management services, sponsored projects, intergovernmental agreements, or information technology services or products and services] Grantee certifies, warrants, and agrees that it does not knowingly employ or contract with an illegal alien who will perform work under this Agreement and will confirm the employment eligibility of all employees who are newly hired for employment in the United States to perform work under this Agreement, through participation in the E-Verify Program or the State verification program established pursuant to §8-17.5-102(5)(c), C.R.S., Grantee shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or enter into a contract with a Subcontractor that fails to certify to Grantee that the Subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. Grantee (i) shall not use E-Verify Program or the program procedures of the Colorado Department of Labor and Employment (“Department Program”) to undertake pre - employment screening of job applicants while this Agreement is being performed, (ii) shall notify the Subcontractor and the contracting State agency or institution of higher education within three days if Grantee has actual knowledge that a Subcontractor is employing or contracting with an illegal alien for work under this Agreement, (iii) shall terminate the subcontract if a Subcontractor does not stop employing or contracting with the illegal alien within three days of receiving the notice, and (iv) shall comply with reasonable requests made in the course of an investigation, undertaken pursuant to §8-17.5-102(5), C.R.S., by the Colorado Department of Labor and Employment. If Grantee participates in the Department program, Grantee shall deliver to the contracting State agency, Institution of Higher Education or political subdivision, a written, notarized affirmation, affirming that Grantee has examined the legal work status of such employee, and shall comply with all of the other requirements of the Depart ment program. If Grantee fails to comply with any requirement of this provision or §§8 -17.5-101, et seq., C.R.S., the contracting State agency, institution of higher education or political subdivision may terminate this Agreement for breach and, if so ter minated, Grantee shall be liable for damages. L. PUBLIC CONTRACTS WITH NATURAL PERSONS. §§24-76.5-101, et seq., C.R.S. Grantee, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that Grantee (i) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (ii) shall comply with the provisions of §§24-76.5-101, et seq., C.R.S., and (iii) has produced one form of identification required by §24-76.5-103, C.R.S., prior to the Effective Date of this Agreement. DocuSign Envelope ID: 2763A202-10C6-43BF-9425-955D7D2CE436 ATTACHMENT A: State Grant Agreement EXHIBIT A, STATEMENT OF WORK AND BUDGET Project Description 2021-FASTER: Two (2) 35' Bus Replacement Project End Date 12/31/2022 Subrecipient Town of Avon DUNS # 146666065 Contact Name Eva Wilson Vendor # 2000101 Address 100 Mikaela Way Avon, CO 81620-0975 Phone # (970) 748-4111 Email ewilson@avon.org Indirect Rate N/A WBS* 23743.10.50 ALI 11.12.02 Total Project Budget $1,000,000.00 State FASTER Funds (at 80% or less) $800,000.00 Local Funds (at 20% or more) $200,000.00 Total Project Amount Encumbered via this Grant Agreement $800,000.00 *The WBS numbers may be replaced without changing the amount of the grant at CDOT’s discretion. A. Project Description Town of Avon shall use 2020 FASTER funds, along with local matching funds, to purchase 2021 -FASTER: Two (2) 35' Bus Replacement as more fully described below. The purchase will support the goals of the Statewide Transit Plan. Town of Avon shall use capital funds to purchase the following ADA compliant vehicles: ALI QTY Fuel Type Description FASTER Amount 11.12.02 2 Diesel Two (2) 35' Bus Replacement $800,000.00 The Capital Asset(s) being purchased is/are to replace the following existing fleet vehicle(s): VIN COTRAMS Inventory Year Model Make 15GCB211931112328 INV-00004792 2003 Phantom GIL - Gillig Corporation 15GGB271071077855 INV-00004796 2007 Phantom GIL - Gillig Corporation B. Performance Standards 1. Project Milestones Milestone Description Original Estimated Completion Date Submit Procurement Concurrence Request (PCR) to CDOT Project Manager for Approval 05/30/2020 Submit Procurement Authorization (PA) and solicitation docs CDOT Project Manager for Approval 07/01/2020 Take Delivery of (First) Vehicle/Equipment/Project Property 10/31/2022 Take Delivery of and Accept All Vehicles/Equipment/Project Property 10/31/2022 Submit Reimbursement Request in COTRAMS 12/31/2022 IMPORTANT NOTE: All milestones in this Statement of Work (except for the final reimbursement request) must be completed no later than the expiration date of this Grant Agreement: 12/31/2022. DocuSign Envelope ID: 2763A202-10C6-43BF-9425-955D7D2CE436 ATTACHMENT A: State Grant Agreement 2. Town of Avon shall use the Capital Asset(s) purchased in its transit operations and shall perform regularly recurring maintenance with specific performance measures tied to Town of Avon’s written maintenance plans, including manufacturer’s recommendations and warranty program(s). Town of Avon will measure whether this project is successful and improves the efficiency, effectiveness, and safety of transportation. 3. Performance will be reviewed throughout the duration of this Grant Agreement. Town of Avon shall report to the CDOT Project Manager whenever one or more of the following occurs: a. Budget or schedule changes; b. Scheduled milestone or completion dates are not met; c. Identification of problem areas and how the problems will be resolved; and/or d. Expected impacts and the efforts to recover from delays. 4. Town of Avon must comply and submit all reimbursements and reports associated, including the assignment of “Colorado Department of Transportation” as the lienholder on the Capital Asset(s), as a condition of project closeout. C. Project Budget 1. The Total Project Budget is $1,000,000.00. CDOT will pay no more than 80% of the eligible, actual project costs, up to the maximum amount of $800,000.00. CDOT will retain any remaining balance of the state share of FASTER Funds. Town of Avon shall be solely responsible for all costs incurred in the project in excess of the amount paid by CDOT from FASTER Funds for the state share of eligible, actual costs. For CDOT accounting purposes, the FASTER Funds of $800,000.00 will be encumbered for this Grant Agreement. 2. No refund or reduction of the amount of Town of Avon’s share to be provided for the project will be allowed unless there is at the same time a refund or reduction of the state share of a proportionate amount. 3. Town of Avon may use eligible federal funds for the Local Funds share. Town of Avon’s share, together with the State FASTER Funds share, must be enough to ensure payment of the Total Project Budget. 4. Per the terms of this Grant Agreement, CDOT shall have no obligation to provide state funds for use on this project. CDOT will administer FASTER funds for this project under the terms of this Grant Agreement, provided that the state share of FASTER funds to be administered by CDOT are made available and remain available. Town of Avon shall initiate and prosecute to completion all actions necessary to enable Town of Avon to provide its share of the Total Project Budget at or prior to the time that such funds are needed to meet the Total Project Budget. D. Procurement Procurement of this Capital Asset(s) will comply with state procurement procedures and the DTR Quick Procurement Guide. In addition to the state requirements outlined below, state procedures for purchase of this Capital Asset(s) must be followed and will be outlined prior to purchase. 1. The first step in the procurement process will be to obtain an Independent Cost Estimate (ICE). 2. The second step will be to obtain a Procurement Concurrence Request (PCR) approval from the CDOT Project Manager through COTRAMS. 3. Prior to entering into a purchasing agreement with the selected vendor, Town of Avon shall request a Purchase Authorization (PA), and submit a purchase order for the Capital Asset(s) in COTRAMS. 4. Upon delivery, Town of Avon shall be responsible for having the Capital Asset(s) inspected and accepted within fifteen (15) calendar days of delivery. If defects prevent acceptance of the Capital Asset(s), Town of Avon will contact the vendor to resolve any defects and notify CDOT. 5. Town of Avon shall be responsible for reimbursing the selected vendor within forty-five (45) calendar days after acceptance of the Capital Asset(s). DocuSign Envelope ID: 2763A202-10C6-43BF-9425-955D7D2CE436 ATTACHMENT A: State Grant Agreement E. Reimbursement Eligibility Requests for reimbursement for eligible project costs will be paid to Town of Avon upon submission of a complete reimbursement packet in COTRAMS for those eligible costs incurred during the Grant Agreement effective dates. Accepted reimbursement packets will include the following completed documents:  Independent Cost Estimate (ICE)  Procurement Concurrence Request (PCR)  Purchase Authorization (PA)  Signed Notice of Acceptance (NA)  Signed Security Agreement (SA)  Application for Title showing “Colorado Department of Transportation” as the l ienholder  Invoice  Proof of Payment  Post Delivery Certifications Town of Avon must submit the final invoice within sixty (60) calendar days of acceptance of the Capital Asset(s), and submit a Grant Closeout and Liquidation (GCL) Form in COTRAMS within fifteen (15) calendar days of issuance of the final reimbursement payment. F. State Interest-Service Life CDOT maintains its share of the remaining state interest upon disposition of state assisted property before the end of its useful life or for a value greater than $5,000 after the useful life has been met, according to the provisions of the State Management Plan. The useful life of rolling stock begins on the date the vehicle is placed in revenue service and continues until it is removed from revenue service. The minimum useful life in years refers to total time in transit revenue service, not time spent stockpiled or otherwise unavailable for regular transit use. The minimum useful life in miles refers to total miles in transit revenue service. Non-revenue miles and periods of extended removal from service do not count towards useful life. Changes in operating circumstances, including unforeseen difficulty maintaining vehicles, higher cost of fuel, and changes in local law limiting where vehicles can be operated are not exemptions from minimum useful life requirements. Minimum useful life is determined by years of service or accumulation of miles, whichever comes first, in accordance with the State Management Plan. Town of Avon shall not dispose or otherwise release the Capital Asset(s) to any other party while there is state interest in the Capital Asset(s) without approval from the CDOT Project Manager. Town of Avon is responsible for making the request to the CDOT Project Manager in a timely manner, providing appropriate documentation, if indicated, when a lien release is being requested in order to allow CDOT to process the release of a lien. CDOT and Town of Avon will work in conjunction with Department of Revenue (DOR) to assure the lien is released according to state rules. G. Training In an effort to enhance transit safety, Town of Avon and any subrecipients and subcontractors shall make a good faith effort to ensure that appropriate training of agency and contracted personnel is occurring and that personnel a re up to date in appropriate certifications. In particular, Town of Avon shall ensure that driving personnel are provided professional training in defensive driving and training on the handling of mobility devices and transporting older adults and individuals with disabilities. DocuSign Envelope ID: 2763A202-10C6-43BF-9425-955D7D2CE436 ATTACHMENT A: State Grant Agreement H. Safety Data Town of Avon and any subrecipients shall maintain and submit, as requested, data related to bus safety. This may include, but not be limited to, the number of vehicle accidents within certain measurement parameters set forth by CDOT, the number and extent of passenger injuries or claims, and the number and extent of employee accidents, injuries and incidents. I. Restrictions on Lobbying Town of Avon is certifying that it complies with 2 CFR 200.450 by entering into this Subaward Agreement. J. Special Conditions 1. Town of Avon will comply with all requirements imposed by CDOT on Town of Avon so that the state award is used in accordance with state statutes, regulations, and the terms and conditions of the state award. 2. Town of Avon must permit CDOT and their auditors to have access to Town of Avon’s records and financial statements as necessary, with reasonable advance notice. 3. Except as provided in this Grant Agreement, Town of Avon shall not be reimbursed for any purchase, issued purchase order, or leased capital equipment prior to the execution of this Grant Agreement. 4. Town of Avon shall document any loss, damage, or theft of FTA- or state-funded property, equipment, or rolling stock in COTRAMS. 5. Town of Avon shall ensure that it does not exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States on the ground of race, color, national origin, sex, age or disability in accordance with Title VI of the Civil Rights Act of 1964. 6. Town of Avon shall seek to ensure non-discrimination in its programs and activities by developing and maintaining a Title VI Program in accordance with the “Requirements for FTA Subrecipients” in CDOT’s Title VI Program Plan and Federal Transit Administration Circular 4702.1B, “Title VI Requirements and Guidelines for FTA Recipients.” The Party shall also facilitate FTA’s compliance with Executive Order 12898 and DOT Order 5610.2(a) by incorporating the principles of environmental justice in planning, projec t development and public outreach in accordance with FTA Circular 4703.1 “Environmental Justice Policy Guidance for Federal Transit Administration Recipients.” 7. Town of Avon will provide transportation services to persons with disabilities, in accordance wi th Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq. 8. Town of Avon shall develop and maintain an ADA Program in accordance with 28 CFR Part 35, Nondiscrimination on the Basis of Disability in State and Local Government Services, FTA Circular 4710.1, and any additional requirements established by CDOT for FTA subrecipients. 9. Town of Avon shall ensure that it will comply with the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, FTA guidance, and any other federal, state, and/or local laws, rules and/or regulations. In any contract utilizing federal funds, land, or other federal aid, Town of Avon shall require its subrecipients and/or contractors to provide a statement of written assurance that they will comply with Section 504 and not discriminate on the basis of disability. 10. Town of Avon shall agree to produce and maintain documentation that supports compliance with the Americans with Disabilities Act to CDOT upon request. DocuSign Envelope ID: 2763A202-10C6-43BF-9425-955D7D2CE436 ATTACHMENT A: State Grant Agreement EXHIBIT B, SAMPLE OPTION LETTER State Agency Department of Transportation Option Letter Number Insert the Option Number (e.g. "1" for the first option) Grantee Insert Grantee's Full Legal Name, including "Inc.", "LLC", etc... Original Agreement Number Insert CMS number or Other Contract Number of the Original Contract Current Grant Agreement Amount FASTER Funds Maximum Amount Initial Term Option Agreement Number Insert CMS number or Other Contract Number of this Option State Fiscal Year 20xx $0.00 Extension Terms Agreement Performance Beginning Date The later of the Effective Date or Month, Day, Year State Fiscal Year 20xx $0.00 State Fiscal Year 20xx $0.00 State Fiscal Year 20xx $0.00 Current Agreement Expiration Date Month, Day, Year State Fiscal Year 20xx $0.00 Local Funds $0.00 Total for All State Fiscal Years $0.00 1. OPTIONS: A. Option to extend for an Extension Term or End of Term Extension. 2. REQUIRED PROVISIONS: A. For use with Option 1(A): In accordance with Section(s) 2.B/2.C of the Original Agreement referenced above, the State hereby exercises its option for an additional term/end of term extension, beginning Insert start date and ending on the current agreement expiration date shown above, at the rates stated in the Original Agreement, as amended. B. For use with all Option 1(A): The Grant Agreement Amount table on the Agreement’s Cover Page is hereby deleted and replaced with the Current Grant Agreement Amount table shown above. 3. OPTION EFFECTIVE DATE: A. The effective date of this Option Letter is upon approval of the State Controller or , whichever is later. STATE OF COLORADO Jared S. Polis, Governor Department of Transportation Shoshana M. Lew, Executive Director By: ________________________________________ David Krutsinger, Director, Division of Transit and Rail Date: ________________________________ In accordance with §24-30-202, C.R.S., this Option Letter is not valid until signed and dated below by the State Controller or an authorized delegate. STATE CONTROLLER Robert Jaros, CPA, MBA, JD By:_______________________________________ Department of Transportation Option Letter Effective Date:__________________ DocuSign Envelope ID: 2763A202-10C6-43BF-9425-955D7D2CE436 ATTACHMENT A: State Grant Agreement EXHIBIT C, TITLE VI – CIVIL RIGHTS Nondiscrimination Requirements The Parties shall not exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States on the ground of race, color, national origin, sex, age or disability. During the performance of this Agreement, the Grantee, for itself, its assignees and successors in interest (hereinafter referred to as the “Grantee”) agrees as follows: (1) Compliance with Regulations: The Grantee shall comply with the Regulation relative to nondiscrimination in federally-assisted programs of the Department of Transportation (hereinafter, "DOT") Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the “Regulations”), which are herein incorporated by reference and made a part of this Agreement. (2) Nondiscrimination: The Grantee, with regard to the Work performed by it during the Agreement, shall not discriminate on the grounds of race, color, national origin, or sex in the selection and retention of subgrantees, including procurements of materials and leases of equipment. The Grantee shall not participate either directly or indirectly in the discrimination prohibited by section 21.5 of the Regulations, including employment practices when the Agreement covers a program set forth in Appendix B of the Regulations. (3) Solicitations for Subgrantees, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by the Grantee for Work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential subgrantee or supplier shall be notified by the Grantee of the Grantee's obligations under this Agreement and the Regulations relative to nondiscrimination on the grounds of race, color, national origin or sex. (4) Information and Reports: The Grantee shall provide all information and reports required by the Regulations or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the Colorado Department of Transportation to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of a Grantee is in the exclusive possession of another who fails or refuses to furnish this information the Grantee shall so certify to the Colorado Department of Transportation as appropriate, and shall set forth what efforts it has made to obtain the information. (5) Sanctions for Noncompliance: In the event of the Grantee's noncompliance with the nondiscrimination provisions of this Agreement, the Colorado Department of Transportation shall impose such contract sanctions as it may determine to be appropriate, including, but not limited to: (a) withholding of payments to the Grantee under the Agreement until the Grantee complies, and/or (b) cancellation, termination or suspension of the Agreement, in whole or in part. (6) Incorporation of Provisions: The Grantee shall include the provisions of paragraphs (1) through (6) in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. The Grantee shall take such action with respect to any subcontract or procurement as the Colorado Department of Transportation may direct as a means of enforcing such provisions including sanctions for non-compliance; provided, however, that, in the event a Grantee becomes involved in, or is threatened with, litigation with a subgrantee or supplier as a result of such direction, the Grantee may request the Colorado Department of Transportation to enter into such litigation to protect the interests of the Colorado Department of Transportation. DocuSign Envelope ID: 2763A202-10C6-43BF-9425-955D7D2CE436 ATTACHMENT A: State Grant Agreement 1 AMENDMENT – JUNE 22, 2021 *All amended language in yellow highlight. Colorado Mountain Purchasing Consortium PURCHASE AGREEMENT Between Town of Avon – Avon Transit 500 Swift Gulch Road PO Box 975 Avon, CO 81620 AND Gillig LLC For Two (2) 35 Foot Low Floor Transit Buses PROPOSAL # CMPC-15-LTB-RFP Awarded : July 13, 2015 by Eagle County Government P.O. Box 850 Eagle, Colorado 81631 ATTACHMENT B: Gillig Contract 2 PURCHASING AGREEMENT Eagle County Award #CO-2015-353. Issued By: Eagle County P.O. Box 850 Eagle, CO 81631 Administered By : Director of Transportation Contractor: Gillig LLC Address: 451 Discovery Drive Livermore, CA 94551 ATTACHMENT B: Gillig Contract 3 WHEREAS, the Colorado Mountain Purchasing Consortium (CMPC) is a group of local agencies providing mass transportation services, who are aligned for the purpose of the coordinated purchase of large transit buses; and WHEREAS, Eagle County led a solicitation on behalf of the CMPC and issued the Colorado Mountain Purchasing Consortium Request for Proposal for Project No. CMPC- 15-LTB-RFP dated January 12, 2015 (the “RFP,” a copy of which is incorporated herein by this reference and available for inspection in the offices of the ECO Transit Department), which complied with federal guidelines for the purchase of transit buses using state and/or federal grant dollars (the “Solicitation”); and WHEREAS, Gillig LLC (“Manufacturer”) submitted a proposal on March 23, 2015 (the “Proposal,” a copy of which is incorporated herein by this reference and available for inspection at the offices of the ECO Transit Department) and was chosen as the successful respondent to the Solicitation for the bus length(s) identified by the CMPC; and WHEREAS, Town of Avon (“Agency”) is a participant in the CMPC and desires to purchase the below described make and model vehicle(s) from the Manufacturer in accordance with said Solicitation; and WHEREAS, Manufacturer is authorized to do business in the State of Colorado and h as the time, skill, expertise, and experience necessary to provide the vehicles as set forth below in paragraph 1 hereof; and WHEREAS, this Purchase Agreement shall govern the relationship between the Manufacturer and Agency in connection with the procurement of said vehicles. NOW, THEREFORE, in consideration of the foreclosing and following promises, Manufacturer and Agency agree as follows: 1. Equipment: a. Manufacturer agrees to provide the following vehicles and associated components (hereinafter referred to as the “Equipment”) as more specifically identified in the Agency Order which is attached hereto as Exhibit A, and incorporated herein by this reference: Bus Size 35-foot Fuel Type: Diesel Quantity: Two (2) b. Manufacturer shall comply with all general requirements, conditions and terms as set forth in the RFP, including all approved deviations. ATTACHMENT B: Gillig Contract 4 c.In the event of any conflict or inconsistency between the terms and conditions set forth in Exhibit A, the RFP, or the Proposal, and the terms and conditions set forth in this Agreement, the terms and conditions set forth in this Agreement shall prevail. d.Agency shall have the right to inspect all Equipment. Inspection and acceptance shall not be unreasonably delayed or refused. Agency may conduct acceptance tests on each delivered vehicle. These tests shall be completed within ten (10) business days after vehicle delivery and the Manufacturer will be notified by the 10th day if the vehicle has been accepted or needs additional work. The post-delivery tests shall include visual inspection and vehicle operations. Vehicles that fail to pass the post-delivery tests are subject to non-acceptance. Agency shall record details of all defects and notify the Manufacturer of non-acceptance of each vehicle. The defects detected during these tests shall be repaired according to the procedures defined in Section 4: Special Provisions, SP. 1 of the RFP. In the event Agency does not accept the Equipment for any reason in its sole discretion, then the Manufacturer shall upon Agency’s request and at no charge to Agency: i.take the Equipment back; ii.exchange the Equipment; or iii.repair the Equipment. 2.Compensation: a.Agency shall compensate Manufacturer for the Equipment in accordance with the rates shown in Exhibit A, and calculated as follows: Unit Cost Total Cost Purchase Description $484,745.00 $969,490.00 See attached Price Summary for documented changes to price. Price per bus increased from $461,513.00 to $484,745.00 (change of $23,232.00) due to decision to update styling and look of bus to be more consistent with current fleet and new bus branding. Additional service route considerations were taken into account and the passenger seating layout was modified to accommodate more standee passenger needs. b.Payment will be made for Equipment satisfactorily delivered and accepted within thirty (30) days of receipt of a proper and accurate invoice from Manufacturer and when CMPC members receive required FTA/CDOT post-delivery paperwork. All invoices shall include detail regarding the Equipment and such other detail as Agency may request. c.If, at any time during the term or after termination or expiration of this Agreement, Agency reasonably determines that any payment made by Agency to Manufacturer was improper because the Equipment for which payment was made were not provided as set forth in this Agreement, then upon written notice of such determination and request for reimbursement from Agency, Manufacturer shall forthwith return such payment(s) to ATTACHMENT B: Gillig Contract 5 Agency. Upon termination or expiration of this Agreement, unexpended funds advanced by Agency, if any, shall forthwith be returned to Agency. d. Agency will not withhold any taxes from monies paid to the Manufacturer hereunder and Manufacturer agrees to be solely responsible for the accurate reporting and payment of any taxes related to payments made pursuant to the terms of this Agreement. e. Notwithstanding anything to the contrary contained in this Agreement, Agency shall have no obligations under this Agreement after, nor shall any payments be made to Manufacturer in respect of any period after December 31 of any year, without an appropriation therefor by Agency in accordance with a budget adopted by its governing body in compliance with Article 25, title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. 29-1-101 et. seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). 3. Schedule: a. The Equipment shall be delivered at a rate not to exceed five (5) vehicles per week Monday through Friday. No deliveries shall be made on weekends or holidays. Delivery of the Equipment shall be completed on or before 365 days from date of firm order provided written notification from the agency is received by the Manufacturer 480 days prior to delivery, with the exception of 2015 and 2016 vehicles as defined i n the Best and Final Offer. b. Manufacturer and Agency agree that if delivery is not made within a maximum of 480 days, as liquidated damages (but not as a penalty) Manufacturer shall pay Agency one hundred dollars ($100.00) per calendar day, per vehicle. c. The Manufacturer is required to work with the CMPC Program Administrator on all contract delay related issues, per Section 3: General Conditions of the RFP, G.C. 9.3. Finalized order dates are to be communicated to the CMPC Program Administrator to track adherence to delivery timeframe requirements. Notifications of any production delays that would result in late delivery or liquidated damages must be communicated by the Manufacturer to the Agency and CMPC Program Administrator per Section 4: Special Provisions of the RFP, SP 6. 4. Federal Grant Contract: The Parties acknowledge that Agency is a sub- recipient of a grant awarded by either/or the Federal Transit Administration (FTA) or the Colorado Department of Transportation (CDOT), which will be used to fund, in part, the procurement of this equipment. The CMPC estimates that approximately 60% of all CMPC contract amounts will be funded by the FTA and/or CDOT. ATTACHMENT B: Gillig Contract 6 5. Documents: Manufacturer shall execute all documents required by Agency to transfer title of the Equipment to Agency as identified in Section 4: Special Provisions Table 1: Contract Deliverable of the RFP . Manufacturer shall provide copies of any instruction or operations manuals and shall further provide copies of any manufacturers’ warranties associated with the Equipment as specified in the RFP, Section 4, SP 2.3. 6. Other Contract Requirements and Manufacturer Representations: a. Manufacturer has familiarized itself with the intended purpose and use of the Equipment to be provided hereunder, the intended use of such Equipment by Agency, and with all local conditions, federal, state and local laws, ordinances, rules and regulations that in any manner affect cost, progress, or Equipment. b. Manufacturer will make, or cause to be made, examinations, investigations, and tests as he deems necessary for the performance of this Agreement. c. The fact that the Agency has accepted or approved the Equipment shall not relieve Manufacturer of any of its responsibilities. Manufacturer represents and warrants that it has the expertise and personnel necessary to properly perform the terms of this Agreement. Manufacturer shall provide appropriate supervision to its employees to ensure the performance in accordance with this Agreement. Manufacturer will provide the Equipment and any associated services in a skillful, professional and competent manner and in accordance with the standard of care applicable to Manufacturers supplying similar equipment and services. d. Manufacturer warrants merchantability and fitness of the Equipment for its intended use and purpose. e. Manufacturer agrees to provide the standard manufacturer and component warranties as stated in Section 7: Warranty Provisions, of the RFP unless any accepted deviations to Section 7 were accepted by the CMPC as part of the initial proposal or Best and Final Offer proposal for each vehicle purchased under this Purchase Agreement. All accepted deviations are included in the Eagle County Contract Exhibit B. All extended warranties as provided in CER. 8 Price Proposal Form accepted by the CMPC for each bus length awarded are referenced in the Eagle County Contract Exhibit B. f. Manufacturer warrants that title to all Equipment shall pass to Agency either by incorporation into the Agency facility or upon receipt by Manufacturer of payment from Agency (whichever occurs first) free and clear of all liens, claims, security interests or encumbrances. Manufacturer further warrants that Manufacturer (or any other person performing Work) purchased all Equipment free and clear of all liens, claims, security interests or encumbrances. Notwithstanding the foregoing, Manufacturer assumes all risk of loss with respect to the Equipment until the equipment has been delivered. The Agency shall assume risk of loss of the bus on delivery after satisfactory initial delivery inspection. Prior to this delivery, the Manufacturer shall have risk of loss of the bus, including any damages sustained during the delivery regardless of the status of title or any payments ATTACHMENT B: Gillig Contract 7 related to the bus. Drivers shall keep a maintenance log en route, and it shall be delivered to the Agency with the bus. If the bus is released back to the Manufacturer for any reason, then the Manufacturer has the risk of loss upon such release. g. Within a reasonable time after receipt of written notice, Manufacturer shall correct at its own expense, without cost to Agency, and without interruption to Agency as defined in Section 7 : i. Any defects in Equipment which existed prior to or during the period of any guarantee or warranty provided in this Agreement; and ii. Any damage to any property caused by such defects or the repairing of such defects. h. Guarantees and warranties shall not be construed to modify or limit any rights or actions Agency may otherwise have against Manufacturer in law or in equity. i. Manufacturer agrees to work in an expeditious manner, within the sound exercise of its judgment and professional standards, in the performance of this Agreement as outlined in the RFP, Section 7, WR 2.2. Time is of the essence with respect to this Agreement. j. This Agreement constitutes an agreement for performance by Contractor as an independent Contractor and not as an employee of Agency. Nothing contained in this Agreement shall be deemed to create a relationship of employer-employee, master-servant, partnership, joint venture or any other relationship between Agency and Manufacturer except that of independent Manufacturer. Manufacturer shall have no authority to bind Agency. k. Manufacturer represents and warrants that at all times in the performance of the Agreement, Manufacturer shall comply with any and all applicable laws, codes, rules and regulations. l. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all other agreements or understanding between the parties with respect thereto. m. Manufacturer shall not assign any portion of this Agreement without the prior written consent of the Agency. Any attempt to ass ign this Agreement without such consent shall be void. n. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted assigns and successors in interest. Enforcement of this Agreement and all rights and obligations hereunder are reserved solely for the parties, and not to any third party. ATTACHMENT B: Gillig Contract 8 o. No failure or delay by either party in the exercise of any right hereunder shall constitute a waiver thereof. No waiver of any breach shall be deemed a waiver of any preceding or succeeding breach. p. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof. q. The signatories to this Agreement aver to their knowledge no employee of the Agency has any personal or beneficial interest whatsoever in the Equipment described in this Agreement. The Manufacturer has no beneficial interest, direct or indirect, that would conflict in any manner or degree with the performance of the Agreement and Manufacturer shall not employ any person having such known interests. r. The Manufacturer, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that he or she (i) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (ii) to the extent applicable shall comply with C.R.S. 24-76.5-103 prior to the effective date of this Agreement. s. Any and all claims, disputes or controversies related to this Purchase Agreement, or breach thereof, shall be litigated in the Colorado District Court for the county in which Agency is located, which shall be the sole and exclusive forum for such litigation. This Agreement shall be construed and interpreted under and shall be governed by the laws of the State of Colorado. 7. Contract Documents: 1) Purchase Agreement 2) Exhibit A, Agency Order 3) The RFP 4) Manufacturer Proposal and related BAFO which are agreed to by Manufacturer, incorporated herein by this reference, and collectively referred to as "Contract Documents." The Contract Documents may only be altered, amended, or repealed by written amendment. The intent of the Contract Documents is to include all items, components and services necessary for the proper sale and delivery of the Equipment. The Contract Documents are complementary, and what is required by any one shall be as binding as if required by all. Words and abbreviations which have well known technical or trade meanings are used in the Contract Documents in accordance with such recognized meanings. The Contract Documents are listed in order of priority. If a conflict exists in the terms of any of the Contract Documents, the document with a higher priority shall control. ATTACHMENT B: Gillig Contract 9 8. Manufacturer’s Agreement: Gillig LLC agrees to provide the equipment identified above and in the Purchasing Agreement for the consideration stated herein. The offer to provide the equipment identified above is hereby accepted as offered in the proposal in response to # CMPC-15-LTB-RFP, in accordance with the Contract Documents. Gillig, LLC: CMPC Member Agency: Town of Avon By: ___________________ By:_____________________ William F. Fay Jr. Eric Heil Vice President, Sales Town Manager Title Title Date: __________________ Date: __________________ ATTACHMENT B: Gillig Contract CONFIDENTIAL Action Section Item Price Avon, CO 35' Low Floor Diesel Base Unit Price (7/10/2020)$461,513.00 Pre-Production Meeting Changes (E. Wilson) 12/23/2020 Change 0 From Standard To BRT Front & Rear Body Style $13,333.00 Add 0 Front & Rear BRT Roof Fairings $2,500.00 Change 4/5 From Hub To Stud Piloted Wheels ($295.00) Delete 43 Dash Mounted, Front Run Sign (Transign)($315.00) Emailed Meeting Changes (J. Shoun) 1/25/21 Add 6 Onspot Automatic Tire Chain System $1,814.00 Change 61 From Apollo To Safety Vision Video Surveillance System ($750.00) Add 61 Back‐Up Camera $470.00 Emailed Meeting Changes (E. Wilson) 3/25/2021 Delete 61 Back‐Up Camera ($470.00) Emailed Meeting Changes (E. Wilson) 3/30/2021 Change 71 Updated Paint/Graphics Package $2,700.00 Emailed Meeting Changes (E. Wilson) 4/28/2021 Change 28 Updated Seat Layout $4,245.00 Avon, CO 35' Low Floor Diesel Current Price 4/28/2021 $484,745.00 Spares & Tooling Budget (Included In Bus Price) Spares & Tooling Budget (To Deferred Account)$4,569.00 CONFIDENTIAL This pricing information is intended only for the personal and confidential use of the recipient(s) to whom it was originally sent. If you are not an intended recipient of this information or an agent responsible for delivering it to an intended recipient, you are hereby notified that you have received this information in error, and that any review, dissemination, distribution, or copying of this message is strictly prohibited. Price Summary 4/28/2021 Avon, CO (Option -Eagle County, CO -CMPC-15-ITB-RFP ) (2) 35' Low Floor Diesel Buses Serial Number: 195968-195969 ATTACHMENT B: Gillig Contract 970-390-2014 ewilson @avon.org TO: Honorable Mayor Smith Hymes and Council Members FROM: Eva Wilson, Mobility Director RE: Acceptance of Grant Award – Coronavirus Response and Relief Supplemental Appropriation Act Grant DATE: June 15, 2021 SUMMARY: On December 27, 2020, the Coronavirus Response and Relief Supplemental Appropriations Act of 2021 (“CRRSAA”), authorized $900 billion in supplemental appropriations for COVID-19 relief. To help ensure the nation’s public transportation systems can continue to serve the millions of Americans who depend on them, CRRSAA allocated $14 billion in support of the transit industry during this public health emergency. Federal Transit Administration (“FTA”) previously announced $25 billion in Coronavirus Aid, Relief, and Economic Security (“CARES”) Act funding for transportation in April 2020. The Town of Avon was awarded $967,728 for Transit Operations. Similar to the CARES Act, the supplemental funding will be provided at a 100-percent federal share, with no local match required. Reimbursable expenses include transit employee salaries & benefits, fuel, supplies, and PPE gear. Total COVID -19 related Grants: The grant agreement is presented for Council approval in accordance w ith the Town of Avon Procurement Code which requires Council to approve contracts over $100,000. RECOMMENDATION: I recommend Council approve the agreement for CRRSAA grant funds. PROPOSED MOTION S: “I move to approve the State of Colorado Subaward Agreement for CRRSAA, $967,728.” Thank you, Eva ATTACHMENT: State of Colorado Subaward Agreement for CRRSAA for $967,728 Contract Number: 21-HTR-ZL-00302/491002604 Page 1 of 44 Version 10/23/19 STATE OF COLORADO SUBAWARD AGREEMENT COVER PAGE State Agency Department of Transportation Agreement Number / PO Number 21-HTR-ZL-00302 / 491002604 Subrecipient TOWN OF AVON Agreement Performance Beginning Date The Effective Date Initial Agreement Expiration Date December 31, 2022 Subaward Agreement Amount Federal Funds Maximum Amount (100%) Local Funds Local Match Amount (0%) Agreement Total $967,728.00 $0.00 $967,728.00 Fund Expenditure End Date December 31, 2022 Agreement Authority Authority to enter into this Agreement exists in CRS §§43-1-106, 43-1-110, 43-1-117.5, 43-1-701, 43-1-702 and 43-2-101(4)(c), appropriated and otherwise made available pursuant to the FAST ACT, MAP-21, SAFETEA_LU, 23 USC §104 and 23 USC §149. Agreement Purpose In accordance with 49 USC §5311, and the Coronavirus Response and Relief Supplemental Appropriations Act of 2021 (CRRSAA) the purpose of this agreement is to provide funding that will support expenses eligible under the relevant program, with an emphasis on payroll and operational needs prioritization. The work to be completed under this Agreement by the Subrecipient is more specifically described in Exhibit A. Exhibits and Order of Precedence The following Exhibits and attachments are included with this Agreement: 1. Exhibit A – Statement of Work and Budget. 2. Exhibit B – Sample Option Letter. 3. Exhibit C – Federal Provisions. 4. Exhibit D – Required Federal Contract/Agreement Clauses. 5. Exhibit E – Verification of Payment. In the event of a conflict or inconsistency between this Agreement and any Exhibit or attachment, such conflict or inconsistency shall be resolved by reference to the documents in the following order of priority: 1. Exhibit C – Federal Provisions. 2. Exhibit D – Required Federal Contract/Agreement Clauses. 3. Colorado Special Provisions in §17 of the main body of this Agreement. 4. The provisions of the other sections of the main body of this Agreement. 5. Exhibit A – Statement of Work and Budget. 6. Executed Option Letters (if any). Principal Representatives For the State: Brodie Ayers Division of Transit and Rail Colorado Dept. of Transportation 2829 W. Howard Place Denver, CO 80204 brodie.ayers@state.co.us For Subrecipient: Eva Wilson TOWN OF AVON BOX D AVON, CO 81620 ewilson@avon.org DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 2 of 44 Version 10/23/19 SIGNATURE PAGE THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT Each person signing this Agreement represents and warrants that the signer is duly authorized to execute this Agreement and to bind the Party authorizing such signature. SUBRECIPIENT TOWN OF AVON __________________________________________ __________________________________________ By: Print Name of Authorized Individual Date: _________________________ STATE OF COLORADO Jared S. Polis, Governor Department of Transportation Shoshana M. Lew, Executive Director __________________________________________ By: Herman Stockinger, Deputy Director and Director of Policy Date: _________________________ 2nd State or Subrecipient Signature if needed __________________________________________ __________________________________________ By: Print Name of Authorized Individual Date: _________________________ LEGAL REVIEW Philip J. Weiser, Attorney General __________________________________________ By: Assistant Attorney General Date: __________________________ In accordance with §24-30-202, C.R.S., this Agreement is not valid until signed and dated below by the State Controller or an authorized delegate. STATE CONTROLLER Robert Jaros, CPA, MBA, JD ___________________________________________ By: Department of Transportation Effective Date:_____________________ DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 3 of 44 Version 10/23/19 TABLE OF CONTENTS 1. PARTIES................................................................................................................................................. 3 2. TERM AND EFFECTIVE DATE .......................................................................................................... 3 3. DEFINITIONS ........................................................................................................................................ 4 4. STATEMENT OF WORK AND BUDGET ........................................................................................... 6 5. PAYMENTS TO SUBRECIPIENT ........................................................................................................ 6 6. REPORTING - NOTIFICATION ........................................................................................................... 8 7. SUBRECIPIENT RECORDS ................................................................................................................. 9 8. CONFIDENTIAL INFORMATION - STATE RECORDS .................................................................... 9 9. CONFLICTS OF INTEREST ............................................................................................................... 10 10. INSURANCE ........................................................................................................................................ 11 11. BREACH OF AGREEMENT ............................................................................................................... 12 12. REMEDIES ........................................................................................................................................... 12 13. DISPUTE RESOLUTION .................................................................................................................... 14 14. NOTICES and REPRESENTATIVES .................................................................................................. 14 15. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION ...................................................... 14 16. GENERAL PROVISIONS .................................................................................................................... 15 17. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3) ..................................... 17 1. PARTIES This Agreement is entered into by and between Subrecipient named on the Cover Page for this Agreement (the “Subrecipient”), and the STATE OF COLORADO acting by and through the State agency named on the Cover Page for this Agreement (the “State”). Subrecipient and the State agree to the terms and conditions in this Agreement. 2. TERM AND EFFECTIVE DATE A. Effective Date This Agreement shall not be valid or enforceable until the Effective Date, and the Grant Funds shall be expended by the Fund Expenditure End Date shown on the Cover Page for this Agreement. The State shall not be bound by any provision of this Agreement before the Effective Date, and shall have no obligation to pay Subrecipient for any Work performed or expense incurred before the Effective Date, except as described in §5.D, or after the Fund Expenditure End Date. B. Initial Term The Parties’ respective performances under this Agreement shall commence on the Agreement Performance Beginning Date shown on the Cover Page for this Agreement and shall terminate on the Initial Agreement Expiration Date shown on the Cover Page for this Agreement (the “Initial Term”) unless sooner terminated or further extended in accordance with the terms of this Agreement. C. Extension Terms - State’s Option The State, at its discretion, shall have the option to extend the performance under this Agreement beyond the Initial Term for a period, or for successive periods, of one year or less at the same rates and under the same terms specified in this Agreement (each such period an “Extension Term”). In order to exercise this option, the State shall provide written notice to Subrecipient in a form substantially equivalent to the Sample Option Letter attached to this Agreement. D. End of Term Extension If this Agreement approaches the end of its Initial Term, or any Extension Term then in place, th e State, at its discretion, upon written notice to Subrecipient in a form substantially equivalent to the Sample Option Letter attached to this Agreement, may unilaterally extend such Initial Term or Extension Term for a period not to exceed two months (an “End of Term Extension”), regardless of whether additional Extension Terms are available or not. The provisions of this Agreement in effect when such notice is given shall remain in effect during the End of Term Extension. The End of Term Extension shall automatically terminate upon execution of a replacement Agreement or modification extending the total term of this Agreement. DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 4 of 44 Version 10/23/19 E. Early Termination in the Public Interest The State is entering into this Agreement to serve the public interest of the State of Colorado as determined by its Governor, General Assembly, or Courts. If this Agreement ceases to further the public interest of the State, the State, in its discretion, may terminate this Agreement in whole or in part. A determination that this Agreement should be terminated in the public interest shall not be equivalent to a State right to terminate for convenience. This subsection shall not apply to a termination of this Agreement by the State for Breach of Agreement by Subrecipient, which shall be governed by §12.A.i. i. Method and Content The State shall notify Subrecipient of such termination in accordance with §14. The notice shall specify the effective date of the termination and whether it affects all or a portion of this Agreement, and shall include, to the extent practicable, the public interest justification for the termination. ii. Obligations and Rights Upon receipt of a termination notice for termination in the public interest, Subrecipient shall be subject to the rights and obligations set forth in §12.A.i.a. iii. Payments If the State terminates this Agreement in the public interest, the State shall pay Subrecipient an amount equal to the percentage of the total reimbursement payable under this Agreement that corresponds to the percentage of Work satisfactorily completed and accepted, as determined by the State, less payments previously made. Additionally, if this Agreement is less than 60% completed, as determined by the State, the State may reimburse Subrecipient for a portion of actual out-of-pocket expenses, not otherwise reimbursed under this Agreement, incurred by Subrecipient which are directly attributable to the uncompleted portion of Subrecipient’s obligations, provided that the sum of any and all reimbursement shall not exceed the Subaward Maximum Amount payable to Subrecipient hereunder. F. Subrecipient’s Termination Under Federal Requirements Subrecipient may request termination of this Agreement by sending notice to the State, or to the Federal Awarding Agency with a copy to the State, which includes the reasons for the termination and the effective date of the termination. If this Agreement is terminated in this manner, then Subrecipient shall return any advanced payments made for work that will not be performed prior to the effective date of the termination. 3. DEFINITIONS The following terms shall be construed and interpreted as follows: A. “Agreement” means this subaward agreement, including all attached Exhibits, all documents incorporated by reference, all referenced statutes, rules and cited authorities, and an y future modifications thereto. B. “Award” means an award by a Recipient to a Subrecipient funded in whole or in part by a Federal Award. The terms and conditions of the Federal Award flow down to the Award unless the terms and conditions of the Federal Award specifically indicate otherwise. C. “Breach of Agreement” means the failure of a Party to perform any of its obligations in accordance with this Agreement, in whole or in part or in a timely or satisfactory manner. The institution of proceedings under any bankruptcy, insolvency, reorganization or similar law, by or against Subrecipient, or the appointment of a receiver or similar officer for Subrecipient or any of its property, which is not vacated or fully stayed within 30 days after the institution of such proceeding, shall also constitute a breach. If Subrecipient is debarred or suspended under §24-109-105, C.R.S., at any time during the term of this Agreement, then such debarment or suspension shall constitute a breach. D. “Budget” means the budget for the Work described in Exhibit A. E. “Business Day” means any day other than Saturday, Sunday, or a legal holiday as listed in §24-11-101(1), C.R.S. F. “CORA” means the Colorado Open Records Act, §§24 -72-200.1, et. seq., C.R.S. G. “Deliverable” means the outcome to be achieved or output to be provided, in the form of a tangible or intangible Good or Service that is produced as a result of Subrecipient’s Work that is intended to be delivered by Subrecipient. DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 5 of 44 Version 10/23/19 H. “Effective Date” means the date on which this Agreement is approved and signed by the Colorado State Controller or designee, as shown on the Signature Page for this Agreement. I. “End of Term Extension” means the time period defined in §2.D. J. “Exhibits” means the exhibits and attachments included with this Agreement as shown on the Cover Page for this Agreement. K. “Extension Term” means the time period defined in §2.C. L. “Federal Award” means an award of Federal financial assistance or a cost-reimbursement contract, under the Federal Acquisition Regulations or by a formula or block grant, by a Federal Awarding Agency to the Recipient. “Federal Award” also means an agreement setting forth the terms and conditions of the Federal Award. The term does not include payments to a Subrecipient or payments to an individual that is a beneficiary of a Federal program. M. “Federal Awarding Agency” means a Federal agency providing a Federal Award to a Recipient. Federal Transit Administration (FTA) is the Federal Awarding Agency for the Federal Award which is the subject of this Agreement. N. “FTA” means Federal Transit Administration. O. “Goods” means any movable material acquired, produced, or delivered by Subrecipient as set forth in this Agreement and shall include any movable material acquired, produced, or delivered by Subrecipient in connection with the Services. P. “Grant Funds” means the funds that have been appropriated, designated, encumbered, or otherwise made available for payment by the State under this Agreement. Q. “Incident” means any accidental or deliberate event that results in or constitutes an imminent threat of the unauthorized access, loss, disclosure, modification, disruption, or destruction of any communications or information resources of the State, which are included as part of the Work, as described in §§24-37.5-401, et. seq., C.R.S. Incidents include, without limitation (i) successful attempts to gain unauthorized access to a State system or State Records regardless of where such information is located; (ii) unwanted disruption or denial of service; (iii) the unauthorized use of a State system for the processing or storage of data; or (iv) changes to State system hardware, firmware, or software characteristics without the State’s knowledge, instruction, or consent. R. “Initial Term” means the time period defined in §2.B. S. “Master Agreement” means the FTA Master Agreement document incorporated by reference and made part of FTA’s standard terms and conditions governing the administration of a project supported with federal assistance awarded by FTA. T. “Matching Funds” (Local Funds, or Local Match) means the funds provided by Subrecipient as a match required to receive the Grant Funds and includes in -kind contribution. U. “Party” means the State or Subrecipient, and “Parties” means both the State and Subrecipient. V. “PII” means personally identifiable information including, without limitation, any information maintained by the State about an individual that can be used to distinguish or trace an individual’s identity, such as name, social security number, date and place of birth, mother’s maiden name, or biometric records . PII includes, but is not limited to, all information defined as personally identifiable information in §§24-72-501 and 24- 73-101, C.R.S. W. “Recipient” means the State agency shown on the Signature and Cover Page s of this Agreement, for the purposes of this Federal Award. X. “Services” means the services to be performed by Subrecipient as set forth in this Agreement and shall include any services to be rendered by Subrecipient in connection with the Goods. Y. “State Confidential Information” means any and all State Records not subject to disclosure under CORA. State Confidential Information shall include but is not limited to PII and State personnel records not subject to disclosure under CORA. State Confidential Information shall not include information or data concerning individuals that is not deemed confidential but nevertheless belongs to the State, which has been communicated, furnished, or disclosed by the State to Subrecipient which (i) is subject to disclosure pursuant to CORA; (ii) is already known to Subrecipient without restrictions at the time of its disclosure to Subrecipient; (iii) is or subsequently becomes publicly available without breach of any obligation owed by Subrecipient to the State; (iv) is disclosed to Subrecipient, without confidentiality obligations, by a third party DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 6 of 44 Version 10/23/19 who has the right to disclose such information; or (v) was independently developed without reliance on any State Confidential Information. Z. “State Fiscal Rules” means the fiscal rules promulgated by the Colorado State Controller pursuant to §24 - 30-202(13)(a), C.R.S. AA. “State Fiscal Year” means a 12-month period beginning on July 1 of each calendar year and ending on June 30 of the following calendar year. If a single calendar year follows the term, then it means the State Fiscal Year ending in that calendar year. BB. “State Records” means any and all State data, information, and records regardless of physical form. CC. “Subaward Maximum Amount” means an amount equal to the total of Grant Funds for this Agreement. DD. “Subcontractor” means any third party engaged by Subrecipient to aid in performance of the Work. “Subcontractor” also includes sub -recipients of Grant Funds. EE. “Subrecipient” means a non-Federal entity that receives a sub-award from a Recipient to carry out part of a Federal program but does not include an individual that is a beneficiary of such program. A Subrecipient may also be a recipient of other Federal Awards directly from a Federal Awarding Agency. For the purposes of this Agreement, Contractor is a Subrecipient. FF. “Uniform Guidance” means the Office of Management and Budget Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2 CFR Part 200, commonly known as the “Super Circular, which supersedes requirements from OMB Circulars A -21, A-87, A-110, A-122, A-89, A- 102, and A-133, and the guidance in Circular A-50 on Single Audit Act follow-up. GG. “Work” means the Goods delivered and Services performed pursuant to this Agreement. HH. “Work Product” means the tangible and intangible results of the Work, whether finished or unfinished, including drafts. Work Product includes, but is not limited to, documents, text, software (including source code), research, reports, proposals, specifications, plans, notes, studies, data, images, photographs, negatives, pictures, drawings, designs, models, surveys, maps, materials, ideas, concepts, know-how, information, and any other results of the Work. “Work Product” does not include any material that was developed prior to the Effective Date that is used, without modification, in the performance of the Work. Any other term used in this Agreement that is defined elsewhere in this Agreement or in an Exhibit shall be construed and interpreted as defined in that section. 4. STATEMENT OF WORK AND BUDGET Subrecipient shall complete the Work as described in this Agreement and in accordance with the provisions of Exhibit A. The State shall have no liability to compensate Subrecipient for the delivery of any goods or the performance of any services that are not specifically set forth in this Agreement. 5. PAYMENTS TO SUBRECIPIENT A. Subaward Maximum Amount Payments to Subrecipient are limited to the unpaid, obligated balance of the Grant Funds. The State shall not pay Subrecipient any amount under this Agreement that exceeds the Subaward Maximum Amount shown on the Cover Page of this Agreement as “Federal Funds Maximum Amount”. B. Payment Procedures i. Invoices and Payment a. The State shall pay Subrecipient in the amounts and in accordance with the schedule and other conditions set forth in Exhibit A. b. Subrecipient shall initiate payment requests by invoice to the State, in a form and manner approved by the State. c. The State shall pay each invoice within 45 days following the State’s receipt of that invoice, so long as the amount invoiced correctly represents Work completed by Subrecipient and previously accepted by the State during the term that the invoice covers. If the State determines that the amount of any invoice is not correct, then Subrecipient shall make a ll changes necessary to correct that invoice. d. The acceptance of an invoice shall not constitute acceptance of any Work performed or Deliverables provided under this Agreement. DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 7 of 44 Version 10/23/19 ii. Interest Amounts not paid by the State within 45 days of the State’s acceptance of the invoice shall bear interest on the unpaid balance beginning on the 45th day at the rate of 1% per month, as required by §24-30- 202(24)(a), C.R.S., until paid in full; provided, however, that interest shall not accrue on unpaid amounts that the State disputes in writing. Subrecipient shall invoice the State separately for accrued interest on delinquent amounts, and the invoice shall reference the delinquent payment, the number of days’ interest to be paid and the interest rate. iii. Payment Disputes If Subrecipient disputes any calculation, determination or amount of any payment, Subrecipient shall notify the State in writing of its dispute within 30 days following the earlier to occur of Subrecipient’s receipt of the payment or notification of the determination or calculation of the payment by the State. The State will review the information presented by Subrecipient and may make changes to its determination based on this review. The calculation, determination or payment amount that results from the State’s review shall not be subject to additional dispute under this subsection. No payment subject to a dispute under this subsection shall be due until after the State has concluded its review, and the State shall not pay any interest on any amount during the period it is subject to dispute under this subsection. iv. Available Funds-Contingency-Termination The State is prohibited by law from making commitments beyond the term of the current State Fiscal Year. Payment to Subrecipient beyond the current State Fiscal Year is contingent on the appropriation and continuing availability of Grant Funds in any subsequent year (as provided in the Colorado Special Provisions). If federal funds or funds from any other non-State funds constitute all or some of the Grant Funds, the State’s obligation to pay Subrecipient shall be contingent upon such non-State funding continuing to be made available for payment. Payments to be made pursuant to this Agreement shall be made only from Grant Funds, and the State’s liability for such payments shall be limited to the amount remaining of such Grant Funds. If State, federal or other funds are not appropriated, or otherwise become unavailable to fund this Agreement, the State may, upon written notice, terminate this Agreement, in whole or in part, without incurring further liability. The State shall, however, remain obligated to pay for Services and Goods that are delivered and accepted prior to the effective date of notice of termination, and this termination shall otherwise be treated as if this Agreement were terminated in the public interest as described in §2.E. v. Federal Recovery The close-out of a Federal Award does not affect the right of the Federal Awarding Agency or the State to disallow costs and recover funds on the basis of a later audit or other review. Any cost disallowance recovery is to be made within the Record Retention Period, as defined below. C. Matching Funds Subrecipient shall provide Matching Funds as provided in Exhibit A. Subrecipient shall have raised the full amount of Matching Funds prior to the Effective Date and shall report to the State regarding the status of such funds upon request. Subrecipient’s obligation to pay all or any part of any Matching Funds, whether direct or contingent, only extends to funds duly and lawfully appropriated for the purposes of this Agreement by the authorized representatives of Subrecipient and paid into Subrecipient’s treasury or bank account. Subrecipient represents to the State that the amount designated “Subrecipient’s Matching Funds” in Exhibit A has been legally appropriated for the purposes of this Agreement by its authorized representatives and paid into its treasury or bank account. Subrecipient does not by this Agreement irrevocably pledge present cash reserves for payments in future fiscal years, and this Agreement is not intended to create a multiple -fiscal year debt of Subrecipient. Subrecipient shall not pay or be liable for any claimed interest, late charges, fees, taxes or penalties of any nature, except as required by Subrecipient’s laws or policies. D. Reimbursement of Subrecipient Costs i. The State shall reimburse Subrecipient for the federal share of properly documented allowable costs related to the Work after review and approval thereof, subject to the provisions of §5, this Agreement, and Exhibit A. However, any costs incurred by Subrecipient prior to the Effective Date shall not be reimbursed absent specific allowance of pre-award costs and indication that the Federal Award funding is retroactive. The State shall pay Subrecipient for costs or expenses incurred or performance by the Subrecipient prior to the Effective Date, only if (1) the Grant Funds involve federal funding and (2) federal laws, rules, and regulations applicable to the Work provide for such retroactive payments to the DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 8 of 44 Version 10/23/19 Subrecipient. Any such retroactive payments shall comply with State Fiscal Rules and be ma de in accordance with the provisions of this Agreement. ii. The State shall reimburse Subrecipient’s allowable costs, not exceeding the Subaward Maximum Amount shown on the Cover Page of this Agreement and on Exhibit A for all allowable costs described in this Agreement and shown in Exhibit A, except that Subrecipient may adjust the amounts between each line item of Exhibit A without formal modification to this Agreement as long as the Subrecipient provides notice to the State of the change, the change does not modify the Subaward Maximum Amount or the Subaward Maximum Amount for any federal fiscal year or State Fiscal Year, and the change does not modify any requirements of the Work. iii. The State shall only reimburse allowable costs described in this Agreement and shown in the Budget if those costs are: a. Reasonable and necessary to accomplish the Work and for the Goods and Services provided; and b. Equal to the actual net cost to Subrecipient (i.e. the price paid minus any items of value received by Subrecipient that reduce the cost actually incurred). iv. Subrecipient’s costs for Work performed after the Fund Expenditure End Date shown on the Cover Page for this Agreement, or after any phase performance period end date for a respective phase of the W ork, shall not be reimbursable. Subrecipient shall initiate any payment request by submitting invoices to the State in the form and manner set forth and approved by the State . E. Close-Out Subrecipient shall close out this Award within 45 days after the Fund Expenditure End Date shown on the Cover Page for this Agreement. To complete close-out, Subrecipient shall submit to the State all Deliverables (including documentation) as defined in this Agreement and Subrecipient’s final reimbursement request or invoice. The State will withhold 5% of allowable costs until all final documentation has been submitted and accepted by the State as substantially complete. If the Federal Awarding Agency has not closed this Federal Award within one year and 90 days after the Fund Expenditure End Date shown on the Cover Page for this Agreement due to Subrecipient’s failure to submit required documentation, then Subrecipient may be prohibited from applying for new Federal Awards through the State until such documentation is submitted and accepted. 6. REPORTING - NOTIFICATION A. Quarterly Reports In addition to any reports required pursuant to any other Exhibit, for any Agreement having a term longer than three months, Subrecipient shall submit, on a quarterly basis, a written report specifying progress made for each specified performance measure and standard in this Agreement. Such progress report shall be in accordance with the procedures developed and prescribed by the State. Progress reports shall be submitted to the State not later than five Business Days following the end of each calendar quarter or at such time as otherwise specified by the State. B. Litigation Reporting If Subrecipient is served with a pleading or other document in connect ion with an action before a court or other administrative decision making body, and such pleading or document relates to this Agreement or may affect Subrecipient’s ability to perform its obligations under this Agreement, Subrecipient shall, within 10 days after being served, notify the State of such action and deliver copies of such pleading or document to the State’s Principal Representative identified on the Cover Page for this Agreement. C. Performance and Final Status Subrecipient shall submit all financial, performance and other reports to the State no later than 45 calendar days after the end of the Initial Term if no Extension Terms are exercised, or the final Extension Term exercised by the State, containing an evaluation and review of Subrecipient’s performance and the final status of Subrecipient’s obligations hereunder. D. Violations Reporting Subrecipient shall disclose, in a timely manner, in writing to the State and the Federal Awarding Agency, all violations of federal or State criminal law involving fraud, bribery, or gratuity violations potentially affecting the Federal Award. The State or the Federal Awarding Agency may impose any penalties for noncompliance DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 9 of 44 Version 10/23/19 allowed under 2 CFR Part 180 and 31 U.S.C. 3321, which may include, without limitat ion, suspension or debarment. 7. SUBRECIPIENT RECORDS A. Maintenance Subrecipient shall make, keep, maintain, and allow inspection and monitoring by the State of a complete file of all records, documents, communications, notes and other written materials, electronic media files, and communications, pertaining in any manner to the Work and the delivery of Services (including, but not limited to the operation of programs) or Goods hereunder (collectively, the “Subrecipient Records”). Subrecipient shall maintain such records for a period of three years following the date of submission to the State of the final expenditure report, or if this Award is renewed quarterly or annually, from the date of the submission of each quarterly or annual report, respectively (the “Record Retention Period”). If any litigation, claim, or audit related to this Award starts before expiration of the Record Retention Period, the Record Retention Period shall extend until all litigation, claims, or audit findings have been resolved and final action taken by the State or Federal Awarding Agency. The Federal Awarding Agency, a cognizant agency for audit, oversight or indirect costs, and the State, may notify Subrecipient in writing that the Record Retention Period shall be extended. For records for real property and equipment, the Record Retention Period shall extend three years following final disposition of such property. B. Inspection Subrecipient shall permit the State, the federal government, and any other duly authorized agent of a governmental agency to audit, inspect, examine, excerpt, copy and transcribe Subrecipient Records during the Record Retention Period. Subrecipient shall make Subrecipient Records available during normal business hours at Subrecipient’s office or place of business, or at other mutually agreed upon times or locations, upon no fewer than two Business Days’ notice from the State, unless the State determines that a shorter period of notice, or no notice, is necessary to protect the interests of the State. C. Monitoring The State, the federal government, and any other duly authorized agent of a governmental agency, in its discretion, may monitor Subrecipient’s performance of its obligations under this Agreement using procedures as determined by the State or that governmental entity. Subrecipient shall allow the State to perform all monitoring required by the Uniform Guidance, based on the State’s risk analysis of Subrecipient and this Agreement. The State shall have the right, in its sole discretion, to change its monitoring procedures and requirements at any time during the term of this Agreement. The State shall monitor Subrecipient’s performance in a manner that does not unduly interfere with Subrecipient’s performance of the Work. D. Final Audit Report Subrecipient shall promptly submit to the State a copy of any final audit report of an audit performed on Subrecipient’s records that relates to or affects this Agreement or the Work, whether the audit is conducted by Subrecipient or a third party. Additionally, if Subrecipient is required to perform a single audit under 2 CFR 200.501, et. seq., then Subrecipient shall submit a copy of the results of that audit to the State within the same timelines as the submission to the federal government. 8. CONFIDENTIAL INFORMATION - STATE RECORDS A. Confidentiality Subrecipient shall keep confidential, and cause all Subcontractors to keep confidential, all State Records, unless those State Records are publicly available. Subrecipient shall not, without prior written approval of the State, use, publish, copy, disclose to any third party, or permit the use by any third party of any State Records, except as otherwise stated in this Agreement, permitted by law or approved in writing by the State. Subrecipient shall provide for the security of all State Confidential Information in accordance with all applicable laws, rules, policies, publications, and guidelines. Subrecipient shall immediately forward any request or demand for State Records to the State’s Principal Representative identified on the Cover Page of the Agreement. B. Other Entity Access and Nondisclosure Agreements Subrecipient may provide State Records to its agents, employees, assigns and Subcontractors as necessary to perform the Work, but shall restrict access to State Confidential Information to those agents, employees, assigns and Subcontractors who require access to perform their obligations under this Agreement. DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 10 of 44 Version 10/23/19 Subrecipient shall ensure all such agents, employees, assigns, and Subcontractors sign agreements containing nondisclosure provisions at least as protective as those in this Agreement, and that the nondisclosure provisions are in force at all times the agent, employee, assign or Subcontractor has access to any State Confidential Information. Subrecipient shall provide copies of those signed nondisclosure provisions to the State upon execution of the nondisclosure provisions if requested by the State. C. Use, Security, and Retention Subrecipient shall use, hold and maintain State Confid ential Information in compliance with any and all applicable laws and regulations only in facilities located within the United States, and shall maintain a secure environment that ensures confidentiality of all State Confidential Information. Subrecipient shall provide the State with access, subject to Subrecipient’s reasonable security requirements, for purposes of inspecting and monitoring access and use of State Confidential Information and evaluating security control effectiveness. Upon the expiration or termination of this Agreement, Subrecipient shall return State Records provided to Subrecipient or destroy such State Records and certify to the State that it has done so, as directed by the State. If Subrecipient is prevented by law or regulation from returning or destroying State Confidential Information, Subrecipient warrants it will guarantee the confidentiality of, and cease to use, such State Confidential Information. D. Incident Notice and Remediation If Subrecipient becomes aware of any Incident, Subrecipient shall notify the State immediately and cooperate with the State regarding recovery, remediation, and the necessity to involve law enforcement, as determined by the State. Unless Subrecipient can establish that Subrecipient and its agents, employees, and Subcontractors are not the cause or source of the Incident, Subrecipient shall be responsible for the cost of notifying each person who may have been impacted by the Incident. After an Incident, Subrecipient shall take steps to reduce the risk of incurring a similar type of Incident in the future as directed by the State, which may include, but is not limited to, developing and implementing a remediation plan that is approved by the State at no additional cost to the State. The State may adjust or direct modifications to this plan, in its sole discretion and Subrecipient shall make all modifications as directed by the State. If Subrecipient cannot produce its analysis and plan within the allotted time, the State, in its sole discretion, may perfor m such analysis and produce a remediation plan, and Subrecipient shall reimburse the State for the reasonable costs thereof. The State may, in its sole discretion and at Subrecipient’s sole expense, require Subrecipient to engage the services of an independent, qualified, State-approved third party to conduct a security audit. Subrecipient shall provide the State with the results of such audit and evidence of Subrecipient’s planned remediation in response to any negative findings. E. Data Protection and Handling Subrecipient shall ensure that all State Records and Work Product in the possession of Subrecipient or any Subcontractors are protected and handled in accordance with the requirements of this Agreement, including the requirements of any Exhibits hereto, at all times. As used in this section, the protections afforded Work Product only apply to Work Product that requires confidential treatment. F. Safeguarding PII If Subrecipient or any of its Subcontractors will or may receive PII under this Agree ment, Subrecipient shall provide for the security of such PII, in a manner and form acceptable to the State, including, without limitation, State non-disclosure requirements, use of appropriate technology, security practices, computer access security, data access security, data storage encryption, data transmission encryption, security inspections, and audits. Subrecipient shall be a “Third -Party Service Provider” as defined in §24-73- 103(1)(i), C.R.S., and shall maintain security procedures and practices c onsistent with §§24-73-101 et seq., C.R.S. 9. CONFLICTS OF INTEREST A. Actual Conflicts of Interest Subrecipient shall not engage in any business or activities or maintain any relationships that conflict in any way with the full performance of the obligations of Subrecipient under this Agreement. Such a conflict of interest would arise when a Subrecipient or Subcontractor’s employee, officer or agent were to offer or provide any tangible personal benefit to an employee of the State, or any member of his or her immediate family or his or her partner, related to the award of, entry into or management or oversight of this Agreement. DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 11 of 44 Version 10/23/19 B. Apparent Conflicts of Interest Subrecipient acknowledges that, with respect to this Agreement, even the appearance of a conflict of interest shall be harmful to the State’s interests. Absent the State’s prior written approval, Subrecipient shall refrain from any practices, activities or relationships that reasonably appear to be in conflict with the full performance of Subrecipient’s obligations under this Agreement. C. Disclosure to the State If a conflict or the appearance of a conflict arises, or if Subrecipient is uncertain whether a conflict or the appearance of a conflict has arisen, Subrecipient shall submit to the State a disclosure statement setting forth the relevant details for the State’s consideration. Failure to promptly submit a disclosure statement or to follow the State’s direction in regard to the actual or apparent conflict constitutes a breach of this Agreement. D. Subrecipient acknowledges that all State employees are subject to the ethical principles described in §24-18- 105, C.R.S. Subrecipient further acknowledges that State employees may be subject to the requirements of §24-18-105, C.R.S., with regard to this Agreement. For the avoidance of doubt, an actual or apparent conflict of interest shall exist if Subrecipient employs or contracts with any State employee, any former State employee within six months following such employee’s termination of employment wit h the State, or any immediate family member of such current or former State employee. Subrecipient shall provide a disclosure statement as described in §9.C. no later than ten days following entry into a contractual or employment relationship as described in this section. Failure to timely submit a disclosure statement shall constitute a Breach of Agreement. Subrecipient may also be subject to such penalties as are allowed by law. 10. INSURANCE Subrecipient shall obtain and maintain, and ensure that each Subcontractor shall obtain and maintain, insurance as specified in this section at all times during the term of this Agreement. All insurance policies required by this Agreement that are not provided through self-insurance shall be issued by insurance comp anies as approved by the State. A. Workers’ Compensation Workers’ compensation insurance as required by state statute, and employers’ liability insurance covering all Subrecipient or Subcontractor employees acting within the course and scope of their employment. B. General Liability Commercial general liability insurance covering premises operations, fire damage, independent contractors, products and completed operations, blanket contractual liability, personal injury, and advertising liability with minimum limits as follows: i. $1,000,000 each occurrence; ii. $1,000,000 general aggregate; iii. $1,000,000 products and completed operations aggregate; and iv. $50,000 any 1 fire. C. Automobile Liability Automobile liability insurance covering any auto (including owned, hired and non-owned autos) with a minimum limit of $1,000,000 each accident combined single limit . D. Additional Insured The State shall be named as additional insured on all commercial general liability policies (leases and construction contracts require additional insured coverage for completed operations) required of Subrecipient and Subcontractors. E. Primacy of Coverage Coverage required of Subrecipient and each Subcontractor shall be primary over any insurance or self- insurance program carried by Subrecipient or the State. F. Cancellation All insurance policies shall include provisions preventing cancellation or non -renewal, except for cancellation based on non-payment of premiums, without at least 30 days prior notice to Subrecipient and DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 12 of 44 Version 10/23/19 Subrecipient shall forward such notice to the State in accordance with §14 within seven days of Subrecipient’s receipt of such notice. G. Subrogation Waiver All insurance policies secured or maintained by Subrecipient or its Subcontractors in relation to this Agreement shall include clauses stating that each carrier shall waive all rights of recovery under subrogation or otherwise against Subrecipient or the State, its agencies, institutions, organizations, officers, agents, employees, and volunteers. H. Public Entities If Subrecipient is a "public entity" within the meaning of the Colorado Governmental Immunity Act, §24 - 10-101, et seq., C.R.S. (the “GIA”), Subrecipient shall maintain, in lieu of the liability insurance requirements stated above, at all times during the term of this Agreement such liability insurance, by commercial policy or self-insurance, as is necessary to meet its liabilities under the GIA. If a Subcontractor is a public entity within the meaning of the GIA, Subrecipient shall ensure that the Subcontractor maintain at all times during the terms of this Subrecipient, in lieu of the liability insurance requirements stated above, such liability insurance, by commercial policy or self-insurance, as is necessary to meet the Subcontractor’s obligations under the GIA. I. Certificates For each insurance plan provided by Subrecipient under this Agreement, Subrecipient shall provide to the State certificates evidencing Subrecipient’s insurance coverage required in this Agreement prior to the Effective Date. Subrecipient shall provide to the State certificates evidencing Subcontractor insurance coverage required under this Agreement prior to the Effective Date, except that, if Subrecipient’s subcontract is not in effect as of the Effective Date, Subrecipient shall provide to the State certificates showing Subcontractor insurance coverage required under this Agreement within seven Business Days following Subrecipient’s execution of the subcontract. No later than 15 days before the expiration date of Subrecipient’s or any Subcontractor’s coverage, Subrecipient shall deliver to the State certificates of insurance evidencing renewals of coverage. At any other time during the term of this Agreement, upon request by the State, Subrecipient shall, within seven Business Days following the request by the State, supply to the State evidence satisfactory to the State of compliance with the provisions of this section. 11. BREACH OF AGREEMENT In the event of a Breach of Agreement, the aggrieved Party shall give written notice of breach to the other Party. If the notified Party does not cure the Breach of Agreement, at its sole expense, within 30 days after the delivery of written notice, the Party may exercise any of the remedies as described in §12 for that Party. Notwithstanding any provision of this Agreement to the contrary, the State, in its discretion, need not provide notice or a cure period and may immediately terminate this Agreement in whole or in part or institute any other remedy in this Agreement in order to protect the public interest of the State; or if Subrecipient is debarred or suspended under §24-109-105, C.R.S., the State, in its discretion, need not provide notice or cure period and may terminate this Agreement in whole or in part or institute any other remedy in this Agreement as of the date that the debarment or suspension takes effect. 12. REMEDIES A. State’s Remedies If Subrecipient is in breach under any provision of this Agreement and fails to cure such breach, the State, following the notice and cure period set forth in §11, shall have all of the remedies listed in this section in addition to all other remedies set forth in this Agreement or at law. The State may exercise any or all of the remedies available to it, in its discretion, concurrently or consecutively. i. Termination for Breach of Agreement In the event of Subrecipient’s uncured breach, the State may terminate this entire Agreement or any part of this Agreement. Additionally, if Subrecipient fails to comply with any terms of the Federal Award, then the State may, in its discretion or at the direction of a Federal Awarding Agency, terminate this entire Agreement or any part of this Agreement. Subrecipient shall continue performance of this Agreement to the extent not terminated, if any. DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 13 of 44 Version 10/23/19 a. Obligations and Rights To the extent specified in any termination notice, Subrecipient shall not incur further obligations or render further performance past the effective date of such notice, and shall terminate outstanding orders and subcontracts with third parties. However, Subrecipient shall complete and deliver to the State all Work not cancelled by the termination notice, and may incur obligations as necessary to do so within this Agreement’s terms. At the request of the State, Subrecipient shall assign to the State all of Subrecipient’s rights, title, and interest in and to such terminated orders or subcontracts. Upon termination, Subrecipient shall take timely, reasonable and necessary action to protect and preserve property in the possession of Subrecipient but in which the State has an interest. At the State’s request, Subrecipient shall return materials owned by the State in Subrecipient’s possession at the time of any termination. Subrecipient shall deliver all completed Work Product and all Work Product that was in the process of completion to the State at the State’s request. b. Payments Notwithstanding anything to the contrary, the State shall only pay Subrecipient for accepted Work received as of the date of termination. If, after termination by the State, the State agrees that Subrecipient was not in breach or that Subrecipient’s action or inaction was excusable, such termination shall be treated as a termination in the public interest , and the rights and obligations of the Parties shall be as if this Agreement had been terminated in the public interest under §2.E. c. Damages and Withholding Notwithstanding any other remedial action by the State, Subrecipient shall remain liable to the State for any damages sustained by the State in connection with any breach by Subrecipient, and the State may withhold payment to Subrecipient for the purpose of mitigating the State’s damages until such time as the exact amount of damages due to the State from Subrecipient is determined. The State may withhold any amount that may be due Subrecipient as the State deems necessary to protect the State against loss including, without limitation, loss as a result of outstanding liens and excess costs incurred by the State in procuring from third parties replacement Work as cover. ii. Remedies Not Involving Termination The State, in its discretion, may exercise one or more of the following additional remedies: a. Suspend Performance Suspend Subrecipient’s performance with respect to all or any portion of the Work pending corrective action as specified by the State without entitling Subrecipient to an adjustment in price or cost or an adjustment in the performance schedule. Subrecipient shall promptly cease performing Work and incurring costs in accordance with the State’s directive, and the State shall not be liable for costs incurred by Subrecipient after the suspension of performance. b. Withhold Payment Withhold payment to Subrecipient until Subrecipient corrects its Work. c. Deny Payment Deny payment for Work not performed, or that due to Subrecipient’s actions or inactions, cannot be performed or if they were performed are reasonably of no value to the state ; provided, that any denial of payment shall be equal to the value of the obligations not performed. d. Removal Demand immediate removal of any of Subrecipient’s employees, agents, or Subcontractors from the Work whom the State deems incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable or whose continued relation to this Agreement is deemed by the State to be contrary to the public interest or the State’s best interest. e. Intellectual Property If any Work infringes, or if the State in its sole discretion determines that any Work is likely to infringe, a patent, copyright, trademark, trade secret or other intellectual property right, Subrecipient shall, as approved by the State (i) secure that right to use such Work for the State and Subrecipient; DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 14 of 44 Version 10/23/19 (ii) replace the Work with noninfringing Work or modify the Work so that it becomes noninfringing; or, (iii) remove any infringing Work and refund the amount paid for such Work to the State. B. Subrecipient’s Remedies If the State is in breach of any provision of this Agreement and does not cure such breach, Subrecipient, following the notice and cure period in §11 and the dispute resolution process in §13 shall have all remedies available at law and equity. 13. DISPUTE RESOLUTION A. Initial Resolution Except as herein specifically provided otherwise, disputes concerning the performance of this Agreement which cannot be resolved by the designated Agreement representatives shall be referred in writing to a senior departmental management staff member designated by the State and a senior manager designated by Subrecipient for resolution. B. Resolution of Controversies If the initial resolution described in §13.A fails to resolve the dispute within 10 Business Days, Subrecipient shall submit any alleged breach of this Agreement by the State to the Procurement Official of the State Agency named on the Cover Page of this Agreement as described in §24-101-301(30), C.R.S., for resolution following the same resolution of controversies process as described in §§24 -106-109, and 24-109-101.1 through 24-109-505, C.R.S., (collectively, the “Resolution Statutes”), except that if Subrecipient wishes to challenge any decision rendered by the Procurement Official, Subrecipient’s challenge shall be an appeal to the executive director of the Department of Personnel and Administration, or their delegate, in the same manner as described in the Resolution Statutes before Subrecipient pursues any further action. Except as otherwise stated in this Section, all requirements of the Resolution Statutes shall apply including, without limitation, time limitations regardless of whether the Colorado Procurement Code applies to this Agreement . 14. NOTICES and REPRESENTATIVES Each individual identified as a Principal Representative on the Cover Page for this Agreement shall be the principal representative of the designating Party. All notices required or permitted to be given under this Agreement shall be in writing, and shall be delivered (A) by hand with receipt required, (B) by certified or registered mail to such Party’s principal representative at the address set forth on the Cover Page for this Agreement or (C) as an email with read receipt requested to the principal representative at the email address, if any, set forth on the Cover Page for this Agreement. If a Party delivers a notice to another through email and the email is undeliverable, then, unless the Party has been provided with an alternate email contact, the Party delivering the notice shall deliver the notice by hand with receipt required or by certified or registered mail to such Party’s principal representative at the address set forth on the Cover Page for this Agreement. Either Party may change its principal representative or principal representative contact information, or may designate specific other individuals to receive certain types of notices in addition to or in lieu of a principal representative, by notice submitted in accordance with this section without a formal amendment to this Agreement. Unless otherwise provided in this Agreement, notices shall be effective upon delivery of the written notice. 15. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION A. Work Product Subrecipient agrees to provide to the State a royalty-free, non-exclusive and irrevocable license to reproduce publish or otherwise use and to authorize others to use the Work Product described herein, for the Federal Awarding Agency’s and State’s purposes. All Work Product shall be delivered to the State by Subrecipient upon completion or termination hereof. B. Exclusive Property of the State Except to the extent specifically provided elsewhere in this Agreement, all State Records, documents, text, software (including source code), research, reports, proposals, specifications, plans, notes, studies, data, images, photographs, negatives, pictures, drawings, designs, models, surveys, maps, materials, ideas, concepts, know-how, and information provided by or on behalf of the State to Subrecipient are the exclusive property of the State (collectively, “State Materials”). Subrecipient shall not use, willingly allow, cause or permit Work Product or State Materials to be used for any purpose other than the performance of Subrecipient’s obligations in this Agreement without the prior written consent of the State. Upon termination DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 15 of 44 Version 10/23/19 of this Agreement for any reason, Subrecipient shall provide all Work Product and State Materials to the State in a form and manner as directed by the State. C. Exclusive Property of Subrecipient Subrecipient retains the exclusive rights, title, and ownership to any and all pre -existing materials owned or licensed to Subrecipient including, but not limited to, all pre-existing software, licensed products, associated source code, machine code, text images, audio and/or video, and third -party materials, delivered by Subrecipient under this Agreement, whether incorporated in a Deliverable or necessary to use a Deliverable (collectively, “Subrecipient Property”). Subrecipient Property shall be licensed to the State as set forth in this Agreement or a State approved license agreement: (i) entered into as exhibits to this Agreement, (ii) obtained by the State from the applicable third-party vendor, or (iii) in the case of open source software, the license terms set forth in the applicable open source license agreement. 16. GENERAL PROVISIONS A. Assignment Subrecipient’s rights and obligations under this Agreement are personal and may not be transferred or assigned without the prior, written consent of the State. Any attempt at assignment or transfer without such consent shall be void. Any assignment or transfer of Subrecipient’s rights and obligations approved by the State shall be subject to the provisions of this Agreement. B. Subcontracts Subrecipient shall not enter into any subaward or subcontract in connection with its obligations under this Agreement without the prior, written approval of the State. Subrecipient shall submit to the State a copy of each such subaward or subcontract upon request by the State. All subawards and subcontracts entered into by Subrecipient in connection with this Agreement shall comply with all applicable federal and state laws and regulations, shall provide that they are governed by the laws of the State of Colorado, and shall be subject to all provisions of this Agreement. If the entity with whom Subrecipient enters into a subcontract or subaward would also be considered a Subrecipient, then the subcontract or subaward entered into by Subrecipient shall also contain provisions permitting both Subrecipient and the State to perform all monitoring of that Subcontractor in accordance with the Uniform Guidance. C. Binding Effect Except as otherwise provided in §16.A, all provisions of this Agreement, including the benefits and burdens, shall extend to and be binding upon the Parties’ respective successors and assigns. D. Authority Each Party represents and warrants to the other that the execution and delivery of this Agr eement and the performance of such Party’s obligations have been duly authorized. E. Captions and References The captions and headings in this Agreement are for convenience of reference only, and shall not be used to interpret, define, or limit its provisions. All references in this Agreement to sections (whether spelled out or using the § symbol), subsections, exhibits or other attachments, are references to sections, subsections, exhibits or other attachments contained herein or incorporated as a part hereof, unless otherwise noted. F. Counterparts This Agreement may be executed in multiple, identical, original counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. G. Entire Understanding This Agreement represents the complete integration of all understandings between the Parties related to the Work, and all prior representations and understandings related to the Work, oral or written, are merged into this Agreement. Prior or contemporaneous additions, deletions, or other changes to this Agreement shall not have any force or effect whatsoever, unless embodied herein. H. Digital Signatures If any signatory signs this Agreement using a digital signature in a ccordance with the Colorado State Controller Contract, Grant and Purchase Order Policies regarding the use of digital signatures issued under the State Fiscal Rules, then any agreement or consent to use digital signatures within the electronic system through which that signatory signed shall be incorporated into this Agreement by reference. DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 16 of 44 Version 10/23/19 I. Modification Except as otherwise provided in this Agreement, any modification to this Agreement shall only be effective if agreed to in a formal amendment to this Agreement, properly executed and approved in accordance with applicable Colorado State law and State Fiscal Rules. Modifications permitted under this Agreement, other than Agreement amendments, shall conform to the policies issued by the Colorado State Controller. J. Statutes, Regulations, Fiscal Rules, and Other Authority. Any reference in this Agreement to a statute, regulation, State Fiscal Rule, fiscal policy or other authority shall be interpreted to refer to such authority then current, as may have been changed or amended since the Effective Date of this Agreement. K. External Terms and Conditions Notwithstanding anything to the contrary herein, the State shall not be subject to any provision included in any terms, conditions, or agreements appearing on Subrecipient’s or a Subcontractor’s website or any provision incorporated into any click-through or online agreements related to the Work unless that provision is specifically referenced in this Agreement. L. Severability The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect, provided that the Parties can continue to perform their obligations under this Agreement in accordance with the intent of this Agreement. M. Survival of Certain Agreement Terms Any provision of this Agreement that imposes an obligation on a Party after termination or expiration of this Agreement shall survive the termination or expiration of this Agreement and shall be enforceable by the other Party. N. Taxes The State is exempt from federal excise taxes under I.R.C. Chapter 32 (26 U.S.C., Subtitle D, Ch. 32) (Federal Excise Tax Exemption Certificate of Registry No. 84-730123K) and from State and local government sales and use taxes under §§39-26-704(1), et seq., C.R.S. (Colorado Sales Tax Exemption Identification Number 98-02565). The State shall not be liable for the payment of any excise, sales, or use taxes, regardless of whether any political subdivision of the State imposes such taxes on Subrecipient. Subrecipient shall be solely responsible for any exemptions from the collection of excise, sales or use taxes that Subrecipient may wish to have in place in connection with this Agreement. O. Third Party Beneficiaries Except for the Parties’ respective successors and assigns described in §16.A, this Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than the Parties. Enforcement of this Agreement and all rights and obligations hereunder are reserved solely to the Parties. Any services or benefits which third parties receive as a result of this Agreement are incidental to this Agreement, and do not create any rights for such third parties. P. Waiver A Party’s failure or delay in exercising any right, power, or privilege under this Agreement, whether explicit or by lack of enforcement, shall not operate as a waiver, nor shall any single or partial exercise of any right, power, or privilege preclude any other or further exercise of such right, power, or privilege. Q. CORA Disclosure To the extent not prohibited by federal law, this Agreement and the performance measures and standards required under §24-106-107, C.R.S., if any, are subject to public release through the CORA. R. Standard and Manner of Performance Subrecipient shall perform its obligations under this Agreement in accordance with the highest standards of care, skill and diligence in Subrecipient’s industry, trade, or profession. S. Licenses, Permits, and Other Authorizations i. Subrecipient shall secure, prior to the Effective Date, and maintain at all times during the term of this Agreement, at its sole expense, all licenses, certifications, permits, and other authorizations required to perform its obligations under this Agreement, and shall ensure that all employees, agents and Subcontractors secure and maintain at all times during the term of their employment, agency or DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 17 of 44 Version 10/23/19 Subcontractor, all license, certifications, permits and other authorizations required to perform their obligations in relation to this Agreement. ii. Subrecipient, if a foreign corporation or other foreign entity transacting business in the State of Colorado, shall obtain prior to the Effective Date and maintain at all times during the term of this Agreement, at its sole expense, a certificate of authority to transact business in the State of Colorado and designate a registered agent in Colorado to accept service of process. T. Federal Provisions Subrecipient shall comply with all applicable requirements of Exhibits C and D at all times during the term of this Agreement. 17. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3) These Special Provisions apply to all agreements except where noted in italics. A. STATUTORY APPROVAL. §24-30-202(1), C.R.S. This Agreement shall not be valid until it has been approved by the Colorado State Controller or designee. If this Agreement is for a Major Information Technology Project, as defined in §24 -37.5-102(2.6), C.R.S., then this Agreement shall not be valid until it has been approved by the State’s Chief Information Officer or designee. B. FUND AVAILABILITY. §24-30-202(5.5), C.R.S. Financial obligations of the State payable after the current State Fiscal Year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available . C. GOVERNMENTAL IMMUNITY. Liability for claims for injuries to persons or property arising from the negligence of the State, its departments, boards, commissions committees, bureaus, offices, employees and officials shall be controlled and limited by the provisions of the Colorado Governmental I mmunity Act, §24-10-101, et seq., C.R.S.; the Federal Tort Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b), and the State’s risk management statutes, §§24-30-1501, et seq. C.R.S. No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, contained in these statutes. D. INDEPENDENT CONTRACTOR. Subrecipient shall perform its duties hereunder as an independent contractor and not as an employee. Neither Subrecipient nor any agent or employee of Subrecipient shall be deemed to be an agent or employee of the State. Subrecipient shall not have authorization, express or implied, to bind the State to any agreement, liability or understanding, except as expressly set forth herein. Subrecipient and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise provide such coverage fo r Subrecipient or any of its agents or employees. Subrecipient shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this Agreement. Subrecipient shall (i) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (ii) provide proof thereof when requested by the State, and (iii) be solely responsible for its acts and those of its employees and agents. E. COMPLIANCE WITH LAW. Subrecipient shall comply with all applicable federal and State laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices. F. CHOICE OF LAW, JURISDICTION, AND VENUE. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Agreement. Any provision included or incorporated herein by reference which conflicts with said laws, rules, and regulations shall be null and void. All suits or actions related to this Agreement shall be filed and proceedings held in the State of Colorado and exclusive venue shall be in the City and County of Denver. DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 18 of 44 Version 10/23/19 G. PROHIBITED TERMS. Any term included in this Agreement that requires the State to indemnify or hold Subrecipient harmless; requires the State to agree to binding arbitration; limits Subrecipient’s liability for damages resulting from death, bodily injury, or damage to tangible property; or that conflict s with this provision in any way shall be void ab initio. Nothing in this Agreement shall be construed as a waiver of any provision of §24 -106-109, C.R.S. H. SOFTWARE PIRACY PROHIBITION. State or other public funds payable under this Agreement shall not be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. Subrecipient hereby certifies and warrants that, during the term of this Agreement and any extensions, Subrecipient has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that Subrecipient is in violation of this provision, the State may exercise any remedy available at law or in equity or under this Agreement, including, without limitation, immediate termination of this Agreement and any remedy consistent with federal copyright laws or applicable licensing restrictions. I. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. §§24-18-201 and 24-50-507, C.R.S. The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this Agreement. Subrecipient has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of Subrecipient’s services and Subrecipient shall not employ any person having such known interests. J. VENDOR OFFSET AND ERRONEOUS PAYMENTS. §§24-30-202(1) and 24-30-202.4, C.R.S. [Not applicable to intergovernmental agreements] Subject to §24-30-202.4(3.5), C.R.S., the State Controller may withhold payment under the State’s vendor offset intercept system for debts owed to State agencies for: (i) unpaid child support debts or child support arrearages; (ii) unpaid balances of tax, accrued interest, or other charges specified in §§39-21-101, et seq., C.R.S.; (iii) unpaid loans due to the Student Loan Division of the Department of Higher Education; (iv) amounts required to be paid to the Unemployment Compensation Fund; and (v) other unpaid debts owing to the State as a result of final agency determination or judicial action. The State may also recover, at the State’s discretion, payments made to Subrecipient in error for any reason, including, but not limited to, overpayments or improper payments, and unexpended or excess funds received by Subrecipient by deduction from subsequent payments under this Agreement, deduction from any payment due under any other contracts, grants or agreements between the State and Subrecipient, or by any other appropriate method for collecting debts owed to the State. K. PUBLIC CONTRACTS FOR SERVICES. §§8-17.5-101, et seq., C.R.S. [Not applicable to agreements relating to the offer, issuance, or sale of securities, investment advisory services or fund management services, sponsored projects, intergovernmental agreements, or information technology services or products and services] Subrecipient certifies, warrants, and agrees that it does not knowingly employ or contract with an illegal alien who will perform work under this Agreement and will confirm the employment eligibility of all employees who are newly hired for employment in the United States to perform work under this Agreement, through participation in the E-Verify Program or the State verification program established pursuant to §8-17.5-102(5)(c), C.R.S., Subrecipient shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or enter into a contract with a Subcontractor that fails to certify to Subrecipient that the Subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. Subrecipient (i) shall not use E-Verify Program or the program procedures of the Colorado Department of Labor and Employment (“Department Program”) to undertake pre-employment screening of job applicants while this Agreement is being performed, (ii) shall notify the Subcontractor and the contracting State agency or institution of higher education within three days if Subrecipient has actual knowledge that a Subcontractor is employing or contracting with an illegal alien for work under this Agreement, (iii) shall terminate the subcontract if a Subcontractor does not stop employing or contracting with the illegal alien within three days of receiving the notice, and (iv) shall comply with reasonable requests made in the course of an investigation, undertaken pursuant to §8-17.5-102(5), C.R.S., by the Colorado Dep artment of Labor and Employment. If Subrecipient participates in the Department program, Subrecipient shall deliver to the contracting State agency, Institution of Higher Education or political subdivision, a written, notarized affirmation, affirming that Subrecipient has examined the legal work status of such employee, and shall comply with all of the other requirements of the DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 19 of 44 Version 10/23/19 Department program. If Subrecipient fails to comply with any requirement of this provision or §§8-17.5-101, et seq., C.R.S., the contracting State agency, institution of higher education or political subdivision may terminate this Agreement for breach and, if so terminated, Subrecipient shall be liable for damages. L. PUBLIC CONTRACTS WITH NATURAL PERSONS. §§24-76.5-101, et seq., C.R.S. Subrecipient, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that Subrecipient (i) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (ii) shall comply with the provisions of §§24 -76.5-101, et seq., C.R.S., and (iii) has produced one form of identification required by §24-76.5-103, C.R.S., prior to the Effective Date of this Agreement. DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 20 of 44 Version 10/23/19 EXHIBIT A, STATEMENT OF WORK AND BUDGET Project Description* 2021 5311 Coronavirus Response and Relief Supplemental Appropriations Act (CRRSAA) & Winter Surge Operating Federal Awarding Agency Federal Transit Administration (FTA) Federal Regional Contact Cindy Terwilliger Federal Award Date To Be Determined Project End Date December 31, 2022 FAIN To Be Determined CFDA# 20.509 CFDA Title Formula Grants for Rural Areas Program Subrecipient Town of Avon DUNS # 146666065 Contact Name Eva Wilson Vendor # 2000101 Address 500 Swift Gulch Road Avon, CO 81620-0975 Phone # 970-748-4111 Email ewilson@avon.org Indirect Rate N/A Total Project Budget $967,728.00 Budget WBS** ALI Federal Funds Local Funds Total Operating 21-11-4CRSA.AVON.600 30.09.08 100% $967,728.00 0% $0.00 $967,728.00 Total Project Amount Encumbered via this Subaward Agreement $967,728.00 *This is not a research and development grant. **The WBS numbers may be replaced without changing the amount of the subaward at CDOT’s discretion. A. Project Description Town of Avon shall maintain the existence of public transportation services through but not limited to the following goals: 1. Support transit operations to prevent, prepare for, and respond to COVID -19 (see Section D for more details); 2. Enhance access to health care, education, employment, public services, recreation, social transactions, and other basic needs; 3. Assist in the maintenance, development, improvement and use of public transportation in their Transportation Planning Region (TPR); 4. Encourage and facilitate the most efficient use of all transportation funds used to provide passenger transportation in their TPR through the coordination of programs and services; and 5. Encourage mobility management, employment -related transportation alternatives, joint development practices, and transit-oriented development. This funding provides support for the services described above for the performance period from October 1, 2020 to December 31, 2022. DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 21 of 44 Version 10/23/19 B. Performance Standards 1. Project Milestones Milestone Description Original Estimated Completion Date Submit Reimbursement Request in COTRAMS Monthly Submit Quarterly Reports in COTRAMS Quarterly Submit Final Reimbursement Request in COTRAMS 3/1/2023 IMPORTANT NOTE: All milestones in this Statement of Work (except for the final reimbursement request) must be completed no later than the expiration date of this Subaward Agreement: December 31, 2022. 2. Performance will be reviewed throughout the duration of this Subaward Agreement. Town of Avon shall report to the CDOT Project Manager whenever one or more of the following occurs: a. Budget or schedule changes; b. Scheduled milestone or completion dates are not met; c. Identification of problem areas and how the pro blems will be resolved; and/or d. Expected impacts and the efforts to recover from delays. C. Project Budget 1. The Total Project Budget is $967,728.00. CDOT will pay 100% of the eligible, actual operating costs, up to the maximum amount of $967,728.00. CDOT will retain any remaining balance of the federal share of CRRSAA FTA-5311 Funds. Town of Avon shall be solely responsible for all costs incurred in the project in excess of the amount paid by CDOT from Federal Funds for the federal share of eligible, actual costs. For CDOT accounting purposes, the $967,728.00 (100%) for operating costs will be encumbered for this Subaward Agreement. 2. No refund or reduction of the amount of Town of Avon’s share to be provided will be allowed unless there is at the same time a refund or reduction of the federal share of a proportionate amount. 3. Per the terms of this Subaward Agreement, CDOT shall have no obligation to provide state funds for use on this project. CDOT will administer Federal Funds for this Project under the terms of this Subaward Agreement, provided that the federal share of FTA funds to be administered by CDOT are made available and remain available. Town of Avon shall initiate and prosecute to completion all actions necessary to enable Town of Avon to provide its share of the Total Project Budget at or prior to the time that such funds are needed to meet the Total Project Budget. D. Allowable Costs 1. Town of Avon shall agree to adhere to the provisions for allowable and unallowable costs cited in the following regulations: 2 CFR 200.420 through 200.475; FTA C 5010.1E Chapter VI : Financial Management; Master Agreement, Section 6 “Non-Federal Share;” and 2 CFR 200.102. Other applicable requirements for cost allowability not cited previously, shall also be considered. Town of Avon’s operating expenses (net fare revenue) are eligible beginning October 1, 2020. Those costs include a. Paying administrative leave of operations personnel due to reductions in services or quarantine; paratransit service operating expenses; b. Items having a useful life of less than one year, including personal protective equipment and cleaning supplies; or c. Costs directly related to system operations. DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 22 of 44 Version 10/23/19 Town of Avon at a minimum, should consider the following items as operating expenses: fuel, oil, drivers and dispatcher salaries and fringe benefits, and licenses. 2. Eligible expenses under CRRSAA funds cannot also be reimbursed utilizing regular 5311 or CARES Act funds. E. Reimbursement Eligibility 1. Town of Avon must submit invoice(s) monthly via COTRAMS. Reimbursement will apply only to eligible expenses that are incurred within the period of performance (October 1, 2020 – December 31, 2022) of this Subaward Agreement. 2. Reimbursement requests must be within the limits of Section D., Allowable Costs, of this Subaward Agreement. 3. Town of Avon must submit the final invoice within sixty (60) calendar days of December 31, 2022, and submit a Grant Closeout and Liquidation (GCL) Form in COTRAMS within fifteen (15) days of issuance of the final reimbursement payment. F. Training In an effort to enhance transit safety, Town of Avon and any subrecipients and subcontractors shall make a good faith effort to ensure that appropriate training of agency and contracted personnel is oc curring and that personnel are up to date in appropriate certifications. In particular, Town of Avon shall ensure that driving personnel are provided professional training in defensive driving and training on the handling of mobility devices and transporti ng older adults and people with disabilities. G. Restrictions on Lobbying Town of Avon is certifying that it complies with 2 CFR 200.450 by entering into this Subaward Agreement. H. Special Conditions 1. Town of Avon will comply with all requirements imposed by CDOT on Town of Avon so that the federal award is used in accordance with federal statutes, regulations, and the terms and conditions of the federal award. 2. Town of Avon agrees that if it receives federal funding from the Federal Emergency Management Agency (FEMA) or through a pass-through entity through the Robert T. Stafford Disaster Relief and Emergency Assistance Act, a different federal agency, or insurance proceeds for any portion of a project activity approved for FTA funding under this Grant Agreement, it will provide written notification to CDOT, and reimburse CDOT for any federal share that duplicates funding provided by FEMA, another federal agency, or an insurance company. 3. Town of Avon must permit CDOT and their auditors to have access to Town of Avon’s records and financial statements as necessary, with reasonable advance notice. 4. Record retention shall adhere to the requirements outlined in 2 CFR 200.333 and FTA C 5010.1E. 5. Town of Avon cannot request reimbursement for costs on this project from mo re than one Federal Awarding Agency or other federal awards (i.e., no duplicate billing). 6. Town of Avon must obtain prior CDOT approval, in writing, if FTA funds are intended to be used for payment of a lease or for third-party contracts. 7. If receiving FTA 5311 funding, Town of Avon shall advertise its fixed route and/or rural based service as available to the general public and service will not be explicitly limited by trip purpose or client type. DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 23 of 44 Version 10/23/19 8. If receiving FTA 5311 funding, Town of Avon shall maintain and report annually all information required by NTD and any other financial, fleet, or service data. 9. If receiving FTA 5311 or 5339 funding, Town of Avon will ensure subcontractors and subrecipients comply with FTA Drug and Alcohol Regulations. 10. Town of Avon will comply with the Federal Transit Administration (FTA) Drug and Alcohol Regulations, to include on time submission to FTA’s Drug and Alcohol Management Information System (DAMIS). 11. Town of Avon shall ensure that it does not exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States on the ground of race, color, national origin, sex, age or disability in accordance with Title VI of the Civil Rights Act of 1964. 12. Town of Avon shall seek to ensure non-discrimination in its programs and activities by developing and maintaining a Title VI Program in accordance with the “Requirements for FTA Subrecipients” in CDOT’s Title VI Program Plan and Federal Transit Administration Circular 4702.1B, “Title VI Requirements and Guidelines for FTA Recipients.” The Party shall also facilitate FTA’s compliance with Executive Order 12898 and DOT Order 5610.2(a) by incorporating the principles of environmental justice in planning, project development and public outreach in acco rdance with FTA Circular 4703.1 “Environmental Justice Policy Guidance for Federal Transit Administration Recipients.” 13. Town of Avon will provide transportation services to persons with disabilities in accordance with the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq. 14. Town of Avon shall develop and maintain an ADA Program in accordance with 28 CFR Part 35, Nondiscrimination on the Basis of Disability in State and Local Government Services, FTA Circular 4710.1, and any additional requirements established by CDOT for FTA Subrecipients. 15. Town of Avon shall ensure that it will comply with the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, FTA guidance, and any other federal, state, and/or local laws, rules and/or regulations. In any contract utilizing federal funds, land, or other federal aid, Town of Avon shall require its subrecipients and/or contractors to provide a statement of written assurance that they will comply with Section 504 and not discriminate on the basis of disability. 16. Town of Avon shall agree to produce and maintain documentation that supports compliance with the Americans with Disabilities Act to CDOT upon request. 17. Town of Avon shall update its Agency Profile in COTRAMS with any alterations to existing construction or any new construction in accordance with FTA Circular 4710.1. 18. If applicable, Town of Avon will adopt a Transit Asset Management Plan that complies with regulations implementing 49 U.S.C. § 5326(d). 19. Town of Avon shall include nondiscrimination language and the Disadvantaged Business Enterprise (DBE) assurance in all contracts and solicitations in accordance with DBE regulations, 49 CFR part 26 and CDOT’s DBE program. DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 24 of 44 Version 10/23/19 EXHIBIT B, SAMPLE OPTION LETTER State Agency Department of Transportation Option Letter Number Insert the Option Number (e.g. "1" for the first option) Subrecipient Insert Subrecipient's Full Legal Name, including "Inc.", "LLC", etc... Original Agreement Number Insert CMS number or Other Contract Number of the Original Contract Subaward Agreement Amount Federal Funds Option Agreement Number Insert CMS number or Other Contract Number of this Option Maximum Amount (%) $0.00 Local Funds Agreement Performance Beginning Date The later of the Effective Date or Month, Day, Year Local Match Amount (%) $0.00 Agreement Total $0.00 Current Agreement Expiration Date Month, Day, Year 1. OPTIONS: A. Option to extend for an Extension Term or End of Term Extension. 2. REQUIRED PROVISIONS: A. For use with Option 1(A): In accordance with Section(s) 2.B/2.C of the Original Agreement referenced above, the State hereby exercises its option for an additional term/end of term extension, beginning Insert start date and ending on the current agreement expiration date shown above, at the rates stated in the Original Agreement, as amended. B. For use with Options 1(A): The Subaward Agreement Amount table on the Agreement’s Cover Page is hereby deleted and replaced with the Current Subaward Agreement Amount table shown above. 3. OPTION EFFECTIVE DATE: A. The effective date of this Option Letter is upon approval of the State Controller or ____, whichever is later. STATE OF COLORADO Jared S. Polis, Governor Department of Transportation Shoshana M. Lew, Executive Director By: ________________________________________ Herman Stockinger, Deputy Director and Director of Policy Date: ________________________________ In accordance with §24-30-202, C.R.S., this Option Letter is not valid until signed and dated below by the State Controller or an authorized delegate. STATE CONTROLLER Robert Jaros, CPA, MBA, JD By:_______________________________________ Department of Transportation Option Letter Effective Date: __________________ DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 25 of 44 Version 10/23/19 EXHIBIT C, FEDERAL PROVISIONS 1. APPLICABILITY OF PRO VISIONS 1.1. The Contract to which these Federal Provisions are attached has been funded, in whole or in part, with an Award of Federal funds. In the event of a conflict between the provisions of these Federal Provisions, the Special Provisions, the body of the Contract, or any attachments or exhibits incorporated into and made a part of the Contract, the provisions of these Federal Provisions shall control. 2. DEFINITIONS 2.1. For the purposes of these Federal Provisions, the following terms shall have the meanings ascribed to them below. 2.1.1. “Award” means an award of Federal financial assistance, and the Contract setting forth the terms and conditions of that financial assistance, that a non-Federal Entity receives or administers. 2.1.1.1. Awards may be in the form of: 2.1.1.1.1. Grants; 2.1.1.1.2. Contracts; 2.1.1.1.3. Cooperative agreements, which do not include cooperative research and development agreements (CRDA) pursuant to the Federal Technology Transfer Act of 1986, as amended (15 U.S.C. 3710); 2.1.1.1.4. Loans; 2.1.1.1.5. Loan Guarantees; 2.1.1.1.6. Subsidies; 2.1.1.1.7. Insurance; 2.1.1.1.8. Food commodities; 2.1.1.1.9. Direct appropriations; 2.1.1.1.10. Assessed and voluntary contributions; and 2.1.2.1.11. Other financial assistance transactions that authorize the expenditure of Federal funds by non-Federal Entities. 2.1.1.1.12. Any other items specified by OMB in policy memoranda available at the OMB website or other source posted by the OMB. 2.1.1.2. Award does not include: 2.1.1.2.1. Technical assistance, which provides services in lieu of money; 2.1.1.2.2. A transfer of title to Federally-owned property provided in lieu of money; even if the award is called a grant; 2.1.1.2.3. Any award classified for security purposes; or 2.1.1.2.4. Any award funded in whole or in part with Recovery funds, as defined in section 1512 of the American Recovery and Reinvestment Act (ARRA) of 2009 (Public Law 111 -5). 2.1.2. “Contract” means the Agreement or Subaward Agreement to which these Federal Provisions are attached and includes all Award types in §2.1.1.1 of this Exhibit. 2.1.3. “Contractor” means the party or parties to a Contract or Subaward Agreement funded, in whole or in part, with Federal financial assistance, other than the Prime Recipient, and includes Subrecipients and borrowers. For purposes of Transparency Act reporting, Contractor does not include Vendors . 2.1.4. “Data Universal Numbering System (DUNS) Number” means the nine-digit number established and assigned by Dun and Bradstreet, Inc. to uniquely identify a business entity. Dun and Bradstreet’s website may be found at: http://fedgov.dnb.com/webform. 2.1.5. “Entity” means all of the following as defined at 2 CFR part 25, subpart C; DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 26 of 44 Version 10/23/19 2.1.5.1. A governmental organization, which is a State, local government, or Indian Tribe; 2.1.5.2. A foreign public entity; 2.1.5.3. A domestic or foreign non-profit organization; 2.1.5.4. A domestic or foreign for-profit organization; and 2.1.5.5. A Federal agency, but only a Subrecipient under an Award or Sub award to a non-Federal entity. 2.1.6. “Executive” means an officer, managing partner or any other employee in a management position. 2.1.7. “Federal Award Identification Number (FAIN)” means an Award number assigned by a Federal agency to a Prime Recipient. 2.1.8. “Federal Awarding Agency” means a Federal agency providing a Federal Award to a Recipient as described in 2 CFR §200.37 2.1.9. “FFATA” means the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109-282), as amended by §6202 of Public Law 110 -252. FFATA, as amended, also is referred to as the “Transparency Act.” 2.1.10. “Federal Provisions” means these Federal Provisions subject to the Transparency Act and Uniform Guidance, as may be revised pursuant to ongoing guidance from the relevant Federal or State of Colorado agency or institutions of higher education. 2.1.11. “OMB” means the Executive Office of the President, Office of Management and Budget. 2.1.12. “Prime Recipient” means a Colorado State agency or institution of higher education that receives an Award. 2.1.13. “Subaward” means an award by a Recipient to a Subrecipient funded in whole or in part by a Federal Award. The terms and conditions of the Federal Award flow down to the Award unless the te rms and conditions of the Federal Award specifically indicate otherwise in accordance with 2 CFR §200.38. The term does not include payments to a contractor or payments to an individual that is a beneficiary of a Federal program. 2.1.14. “Subrecipient” means a non-Federal Entity (or a Federal agency under an 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 Sub recipient is subject to the terms and conditions of the Federal Award to the Prime Recipient, including program compliance requirements. The term “Subrecipient” includes and may be referred to as Subrecipient. The term does not include an individual who is a beneficiary of a federal program. 2.1.15. “Subrecipient Parent DUNS Number” means the sub recipient parent organization’s 9 -digit Data Universal Numbering System (DUNS) number that appears in the sub recipient’s System for Award Management (SAM) profile, if applicable. 2.1.16. “System for Award Management (SAM)” means the Federal repository into which an Entity must enter the information required under the Transparency Act, which may be found at http://www.sam.gov. 2.1.17. “Total Compensation” means the cash and noncash dollar value earned by an Executive during the Prime Recipient’s or Subrecipient’s preceding fiscal year and includes the following: 2.1.17.1. Salary and bonus; 2.1.17.2. Awards of stock, stock options, and stock appreciation rights, using the dollar amount recognized for financial statement reporting purposes with respect to the fiscal year in accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2005) (FAS 123R), Shared Based Payments; 2.1.17.3. Earnings for services under non-equity incentive plans, not including group life, health, hospitalization or medical reimbursement plans that do not discriminate in favor of Executives and are available generally to all salaried employees; 2.1.17.4. Change in present value of defined benefit and actuarial pension plans; 2.1.17.5. Above-market earnings on deferred compensation which is not tax-qualified; DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 27 of 44 Version 10/23/19 2.1.17.6. Other compensation, if the aggregate value of all such other compensation (e.g. severance, termination payments, value of life insurance paid on behalf of the employee, perquisites or property) for the Executive exceeds $10,000. 2.1.18. “Transparency Act” means the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109-282), as amended by §6202 of Public Law 110-252. The Transparency Act also is referred to as FFATA. 2.1.19. “Uniform Guidance” means the Office of Management and Budget Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, which supersedes requirements from OMB Circulars A-21, A-87, A-110, and A-122, OMB Circulars A-89, A-102, and A-133, and the guidance in Circular A-50 on Single Audit Act follow-up. The terms and conditions of the Uniform Guidance flow down to Awards to Subrecipie nts unless the Uniform Guidance or the terms and conditions of the Federal Award specifically indicate otherwise. 2.1.20. “Vendor” means a dealer, distributor, merchant or other seller providing property or services required for a project or program funded by an Award. A Vendor is not a Prime Recipient or a Subrecipient and is not subject to the terms and conditions of the Federal award. Program compliance requirements do not pass through to a Vendor. 3. COMPLIANCE 3.1. Contractor shall comply with all applicable provisions of the Transparency Act, all applicable provisions of the Uniform Guidance, and the regulations issued pursuant thereto, including but not limited to these Federal Provisions. Any revisions to such provisions or regulations shall automatically become a part of these Federal Provisions, without the necessity of either party executing any further instrument. The State of Colorado may provide written notification to Contractor of such revisions, but such notice shall not be a condition precedent to the effectiveness of such revisions. 4. SYSTEM FOR AWARD MANAGEMENT (SAM) AND DATA UNIVERSAL NUMBERING SYSTEM (DUNS) REQUIREMENTS 4.1. SAM. Contractor shall maintain the currency of its information in SAM until the Contractor submits the final financial report required under the Award or receives final payment, whichever is later. Contractor shall review and update SAM information at least annually after the initial registration, and more frequently if required by changes in its information. 4.2. DUNS. Contractor shall provide its DUNS number to its Prime Recipient, and shall update Contractor’s information in Dun & Bradstreet, Inc. at least annually after the initial registration, and more frequently if required by changes in Contractor’s information. 5. TOTAL COMPENSATION 5.1. Contractor shall include Total Compensation in SAM for each of its five most highly compensated Executives for the preceding fiscal year if: 5.1.1. The total Federal funding authorized to date under the Award is $25,000 or more; and 5.1.2. In the preceding fiscal year, Contractor received: 5.1.2.1. 80% or more of its annual gross revenues from Federal procurement contracts and subcontracts and/or Federal financial assistance Awards or Sub awards subject to the Transparency Act; and 5.1.2.2. $25,000,000 or more in annual gross revenues from Federal procurement contracts and subcontracts and/or Federal financial assistance Awards or Sub awards subject to the Transparency Act; and 5.1.3. The public does not have access to information about the compensation of such Executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d) or § 6104 of the Internal Revenue Code of 1986. 6. REPORTING 6.1. Contractor shall report data elements to SAM and to the Prime Recipient as required in this Exhibit if Contractor is a Subrecipient for the Award pursuant to the Transparency Act. No direct payment shall be made to Contractor for providing any reports required under these Federal Provisions and the cost of producing such reports shall be included in the Contract price. The reporting requirements in this Exhibit DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 28 of 44 Version 10/23/19 are based on guidance from the US Office of Management and Budget (OMB), and as such are subject to change at any time by OMB. Any such changes shall be automatically incorporated into this Contract and shall become part of Contractor’s obligations under this Contract. 7. EFFECTIVE DATE AND DOLLAR THRESHOLD FOR REPORTING 7.1. Reporting requirements in §8 below apply to new Awards as of October 1, 2010, if the initial award is $25,000 or more. If the initial Award is below $25,000 but subsequent Award modifications result in a total Award of $25,000 or more, the Award is subject to the reporting requirements as of the date the Award exceeds $25,000. If the initial Award is $25,000 or more, but funding is subsequently de - obligated such that the total award amount falls below $25,000, the Award shall continue to be subject to the reporting requirements. 7.2. The procurement standards in §9 below are applicable to new Awards made by Prime Recipient as of December 26, 2015. The standards set forth in §11 below are applicable to audits of fiscal years beginning on or after December 26, 2014 . 8. SUBRECIPIENT REPORTING REQUIREMENTS 8.1. If Contractor is a Subrecipient, Contractor shall report as set forth below. 8.1.1. To SAM. A Subrecipient shall register in SAM and report the following data elements in SAM for each Federal Award Identification Number no later than the end of the month following the month in which the Sub award was made: 8.1.1.1. Subrecipient DUNS Number; 8.1.1.2. Subrecipient DUNS Number + 4 if more than one electronic funds transfer (EFT) account; 8.1.1.3. Subrecipient Parent DUNS Number; 8.1.1.4. Subrecipient’s address, including: Street Address, City, State, Country, Zip + 4, and Congressional District; 8.1.1.5. Subrecipient’s top 5 most highly compensated Executives if the criteria in §4 above are met; and 8.1.1.6. Subrecipient’s Total Compensation of top 5 most highly compensated Executives if criteria in §4 above met. 8.1.2. To Prime Recipient. A Subrecipient shall report to its Prime Recipient, upon the effective date of the Agreement, the following data elements: 8.1.2.1. Subrecipient’s DUNS Number as registered in SAM. 8.1.2.2. Primary Place of Performance Information, including: Street Address, City, State, Country, Zip code + 4, and Congressional District. 9. PROCUREMENT STANDARDS 9.1. Procurement Procedures. A Subrecipient shall use its own documented procurement procedures which reflect applicable State, local, and Tribal laws and regulations, provided that the procurements conform to applicable Federal law and the standards identified in the Uniform Guidance, inclu ding without limitation, §§200.318 through 200.326 thereof. 9.2. Procurement of Recovered Materials. If a Subrec ipient is a State Agency or an agency of a political subdivision of the State, its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuri ng solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines. DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 29 of 44 Version 10/23/19 10. ACCESS TO RECORDS 10.1. A Subrecipient shall permit Recipient and auditors to have access to Sub recipient’s records and financial statements as necessary for Recipient to meet the requirements of §200.331 (Requirements for pass - through entities), §§200.300 (Statutory and national policy requirements) through 200.309 (Period of performance), and Subpart F-Audit Requirements of the Uniform Guidance. 2 CFR §200.331(a)(5). 11. SINGLE AUDIT REQUIREMENTS 11.1. If a Subrecipient expends $750,000 or more in Federal Awards during the Subrecipient’s fiscal year, the Subrecipient shall procure or arrange for a single or program-specific audit conducted for that year in accordance with the provisions of Subpart F-Audit Requirements of the Uniform Guidance, issued pursuant to the Single Audit Act Amendments of 1996, (31 U.S.C. 7501-7507). 2 CFR §200.501. 11.1.1. Election. A Subrecipient shall have a single audit conducted in accordance with Uniform Guidance §200.514 (Scope of audit), except when it elects to have a program -specific audit conducted in accordance with §200.507 (Program-specific audits). The Subrecipient may elect to have a program-specific audit if Subrecipient expends Federal Awards under only one Federal program (excluding research and development) and the Federal program's statutes, regulations, or the terms and conditions of the Federal award do not require a financial statement audit of Prime Recipient. A program-specific audit may not be elected for research and development unless all of the Federal Awards expended were received from Recipient and Recipient approves in advance a program- specific audit. 11.1.2. Exemption. If a Subrecipient expends less than $750,000 in Federal Awards during its fiscal year, the Subrecipient shall be exempt from Federal audit requirements fo r that year, except as noted in 2 CFR §200.503 (Relation to other audit requirements), but records shall be available for review or audit by appropriate officials of the Federal agency, the State, and the Government Accountability Office. 11.1.3. Subrecipient Compliance Responsibility. A Subrecipient shall procure or otherwise arrange for the audit required by Part F of the Uniform Guidance and ensure it is properly performed and submitted when due in accordance with the Uniform Guidance. Subrecipient shall prepare appropriate financial statements, including the schedule of 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. 12. CONTRACT PROVISIONS FOR SUBRECIPIENT CONTRACTS 12.1. If Contractor is a Subrecipient, then it shall comply with and shall include all of the following applicable provisions in all subcontracts entered into by it pursuant to this Agreement. 12.1.1. Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of “federally assisted construction contract” in 41 CFR Part 60 - 1.3 shall include the equal opportunity clause provided under 41 CFR 60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 CFR Part, 1964 - 1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 CFR part 60, “Office of Federal Contract Compliance Programs, Equal Employment Op portunity, Department of Labor. 12.1.1.1. During the performance of this contract, the contractor agrees as follows: 12.1.1.1.1. Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 30 of 44 Version 10/23/19 for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause. 12.1.1.1.2. Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. 12.1.1.1.3. Contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 12.1.1.1.4. Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. 12.1.1.1.5. Contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. 12.1.1.1.6. In the event of Contractor's non-compliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be canceled, terminated or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. 12.1.1.1.7. Contractor will include the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States.” 12.1.2. Davis-Bacon Act. Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non - Federal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 3141- 3144, and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-Federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non -Federal entity must report all suspected or reported violations to the Federal awarding agency. The contracts must also include a provision for compliance with the Copeland “Anti -Kickback” Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in 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. DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 31 of 44 Version 10/23/19 12.1.3. Rights to Inventions Made Under a Contract or Contract. If the Federal Award meets the definition of “funding Contract” under 37 CFR §401.2 (a) and Subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding Contract,” Subrecipient must comply with the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Contracts,” and any implementing regulations issued by the awarding agency. 12.1.4. Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251-1387), as amended. Contracts and subawards of amounts in excess of $150,000 must contain a provision that requires the non-Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). 12.1.5. Debarment and Suspension (Executive Orders 12549 and 12689). A contract award (see 2 CFR 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that imple ment Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. 12.1.6. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier-to-tier up to the non-Federal award. 13. CERTIFICATIONS 13.1. Unless prohibited by Federal statutes or regulations, Recipient may require Subrecipient to submit certifications and representations required by Federal statutes or regulations on an annual basis. 2 CFR §200.208. Submission may be required more frequently if Subrecipient fails to meet a requirement of the Federal award. Subrecipient shall certify in writing to the State at the end of the Award that the project or activity was completed, or the level of effort was expended. 2 CFR §200.201(3). If the required level of activity or effort was not carried out, the amount of the Award must be adjusted . 14. EXEMPTIONS 14.1. These Federal Provisions do not apply to an individual who receives an Award as a natural person, unrelated to any business or non-profit organization he or she may own or operate in his or her name. 14.2. A Contractor with gross income from all sources of less than $300,000 in the previous tax year is exempt from the requirements to report Subawards and the Total Compensation of its most highly compensated Executives. 14.3. There are no Transparency Act reporting requirements for Vendors. 15. EVENT OF DEFAULT 15.1. Failure to comply with these Federal Provisions shall constitute an event of default under the Contract and the State of Colorado may terminate the Contract upon 30 days prior written notice if the default remains uncured five calendar days following the termination of the 30-day notice period. This remedy will be in addition to any other remedy available to the State of Colorado under the Contract, at law or in equity. DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 32 of 44 Version 10/23/19 EXHIBIT D, REQUIRED FEDERAL CONTRACT/AGREEMENT CLAUSES All FTA-Assisted Third-Party Contracts and Subawards from the Current FTA Master Agreement [FTA MA(23)] Section 3.l. – No Federal government obligations to third-parties by use of a disclaimer No Federal/State Government Commitment or Liability to Third Parties. Except as the Federal Government or CDOT expressly consents in writing, the Subrecipient agrees that: (1) The Federal Government or CDOT do not and shall not have any commitment or liability related to the Agreement, to any Third-Party Participant at any tier, or to any other person or entity that is not a party (FTA, CDOT or the Subrecipient) to the Agreement, and (2) Notwithstanding that the Federal Government or CDOT may have concurred in or approved any Solicitation or Third-Party Agreement at any tier that may affect the Agreement, the Federal Government and CDOT does not and shall not have any commitment or liability to any Third Party Participant or other entity or person that is not a party (FTA, CDOT, or the Subrecipient) to the Agreement. Section 4.f. – Program fraud and false or fraudulent statements and related acts False or Fraudulent Statements or Claims. (1) Civil Fraud. The Subrecipient acknowledges and agrees that: (a) Federal laws, regulations, and requirements apply to itself and its Agreement, including the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq., and U.S. DOT regulations, “Program Fraud Civil Remedies,” 49 C.F.R. part 31. (b) By executing the Agreement, the Subrecipient certifies and affirms to the Federal Government the truthfulness and accuracy of any claim, statement, submission, certification, assurance, affirmation, or representation that the Subrecipient provides to the Federal Government and CDOT. (c) The Federal Government and CDOT ma y impose the penalties of the Program Fraud Civil Remedies Act of 1986, as amended, and other applicable penalties if the Subrecipient presents, submits, or makes available any false, fictitious, or fraudulent information. (2) Criminal Fraud. The Subrecipient acknowledges that 49 U.S.C. § 5323(l)(1) authorizes the Federal Government to impose the penalties under 18 U.S.C. § 1001 if the Subrecipient provides a false, fictitious, or fraudulent claim, statement, submission, certification, assurance, or re presentation in connection with a federal public transportation program under 49 U.S.C. chapter 53 or any other applicable federal law. Section 9. Record Retention and Access to Sites of Performance. a. Types of Records. The Subrecipient agrees that it will retain, and will require its Third-Party Participants to retain, complete and readily accessible records related in whole or in part to the Underlying Agreement, including, but not limited to, data, documents, reports, statistics, subagreements, leases, third party contracts, arrangements, other third-party agreements of any type, and supporting materials related to those records. b. Retention Period. The Subrecipient agrees that it will comply with the record retention requirements in the applicable U.S. DOT Common Rule. Records pertaining to its Award, the accompanying Agreement, and any Amendments thereto must be retained from the day the Agreement was signed by the authorized FTA or State official through the course of the Award, the accompanying Agree ment, and any Amendments thereto until three years after the Subrecipient has submitted its last or final expenditure report, and other pending matters are closed. c. Access to Recipient and Third-Party Participant Records. The Subrecipient agrees and assures that each Subrecipient, if any, will agree to: (1) Provide, and require its Third Party Participants at each tier to provide, sufficient access to inspect and audit records and information related to its Award, the accompanying Agreement, and any Amendments thereto to the U.S. Secretary of Transportation or the Secretary’s duly authorized representatives, to the Comptroller General of the United States, and the Comptroller General’s duly authorized representatives, and to the Subrecipient and each of its Subrecipient, (2) Permit those individuals listed above to inspect all work and materials related to its Award, and to audit any information related to its Award under the control of the Subrecipient or Third-Party Participant within books, records, accounts, or other locations, and (3) Otherwise comply with 49 U.S.C. § 5325(g), and federal access to records requirements as set forth in the applicable U.S. DOT Common Rules. d. Access to the Sites of Performance. The Subrecipient agrees to permit, and to require its Third-Party Participants to permit, FTA and CDOT to have access to the sites of performance of its Award, the accompanying Agreement, and any Amendments thereto, and to make site visits as needed in compliance with State and the U.S. DOT Common Rules. DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 33 of 44 Version 10/23/19 e. Closeout. Closeout of the Award does not alter the record retention or access requirements of this section of th e Master Agreement. 3.G – Federal Changes Application of Federal, State, and Local Laws, Regulations, Requirements, and Guidance . The Subrecipient agrees to comply with all applicable federal requirements and federal guidance. All standards or limits are minimum requirements when those standards or limits are included in the Recipient’s Agreement or this Master Agreement. At the time the FTA Authorized Official (CDOT) awards federal assistance to the Subrecipient in support of the Agreement, the federal requirements and guidance that apply then may be modified from time-to-time and will apply to the Subrecipient or the accompanying Agreement. 12 – Civil Rights a. Nondiscrimination – Title VI of the Civil Rights Act. The Subrecipient agrees to, and assures that each Third- Party Participant, will: (1) Prohibit discrimination on the basis of race, color, or national origin, (2) Comply with: (a) Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d et seq., (b) U.S. DOT regulations, “Nondiscrimination in Federally-Assisted Programs of the Department of Transportation – Effectuation of Title VI of the Civil Rights Act of 1964,” 49 C.F.R. part 21, and (c) Federal transit law, specifically 49 U.S.C. § 5332 , and (3) Follow: (a) The most recent edition of FTA Circular 4702.1, “Title VI Requirements and Guidelines for Federal Transit Administration Recipients,” to the extent consistent with applicable federal laws, regulations, requirements, and guidance, (b) U.S. DOJ, “Guidelines for the enforcement of Title VI, Civil Rights Act of 1964,” 28 C.F.R. § 50.3, and (c) All other applicable federal guidance that may be issued. b. Equal Employment Opportunity. (1) Federal Requirements and Guidance. The Subrecipient agrees to, and assures that each Third-Party Participant will, prohibit, discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin, and: (a) Comply with Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., (b) Facilitate compliance with Executive Order No. 11246, “Equal Employment Opportunity” September 24, 1965, 42 U.S.C. § 2000e note, as amended by any later Executive Order that amends or supersedes it in part and is applicable to federal assistance programs, (c) Comply with federal transit law, specifically 49 U.S.C. § 5332, as provided in section 12 of this Master Agreement, (d) FTA Circular 4704.1 “Equal Employment Opportunity (EEO) Requirements and Guidelines for Federal Transit Administration Recipients,” and (e) Follow other federal guidance pertaining to EEO laws, regulations, and requirements, and prohibitions against discrimination on the basis of disability, (2). Specifics. The Subrecipient agrees to, and assures that each Third-Party Participant will: (a) Prohibited Discrimination. Ensure that applicants for employment are employed and employees are treated during employment without discrimination on the basis of their race, color, religion, national origin, disability, age, sexual orientation, gender identity, or status as a parent, as provided in Executive Order No. 11246 and by any later Executive Order that amends or supersedes it, and as specified by U.S. Department of Labor regulations, (b) Affirmative Action. Take affirmative action that includes, but is not limited to: 1 Recruitment advertising, recruitment, and employment, 2 Rates of pay and other forms of compensation, 3 Selection for training, including apprenticeship, and upgrading, and 4 Transfers, demotions, layoffs, and terminations, but (c) Indian Tribe. Recognize that Title VII of the Civil Rights Act of 1964, as amended, exempts Indian Tribes under the definition of “Employer,” and (3) Equal Employment Opportunity Requirements for Construction Activities . Comply, when undertaking “construction” as recognized by the U.S. Department of Labor (U.S. DOL), with: (a) U.S. DOL regulations, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor,” 41 C.F.R. chapter 60, and DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 34 of 44 Version 10/23/19 (b) Executive Order No. 11246, “Equal Employment Opportunity in Federal Employment,” September 24, 1965, 42 U.S.C. § 2000e note, as amended by any later Executive Order that amends or supersedes it, referenced in 42 U.S.C. § 2000e note. c. Nondiscrimination on the Basis of Disability. The Subrecipient agrees to comply with the following federal prohibitions against discrimination on the basis of disability: (1) Federal laws, including: (a) Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, which prohibits discrimination on the basis of disability in the administration of federally assisted Programs, Projects, or activities, (b) The Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. § 12101 et seq., which requires that accessible facilities and services be made available to individuals with disabilities: 1 For FTA Recipients generally, Titles I, II, and III of the ADA apply, but 2 For Indian Tribes, Titles II and III of the ADA apply, but Title I of the ADA does not apply because it exempts Indian Tribes from the definition of “employer,” (c) The Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq., which requires that buildings and public accommodations be accessible to individuals with disabilities, (d) Federal transit law, specifically 49 U.S.C. § 5332, which now includes disability as a prohibited basis for discrimination, and (e) Other applicable federal laws, regulations, and requirements pertaining to access for seniors or individuals with disabilities. (2) Federal regulations and guidance, including: (a) U.S. DOT regulations, “Transportation Services for Individuals with Disabilities (ADA),” 49 C.F.R. part 37, (b) U.S. DOT regulations, “Nondiscrimination on the Basis of Disability in Programs and Activities Receiving or Benefiting from Federal Financial Assistance,” 49 C.F.R. part 27, (c) Joint U.S. Architectural and Transportation Barriers Compliance Board (U.S. ATBCB) and U.S. DOT regulations, “Americans With Disabilities (ADA) Accessibility Specifications for Transportation Vehicles,” 36 C.F.R. part 1192 and 49 C.F.R. part 38, (d) U.S. DOT regulations, “Transportation for Individuals with Disabilities: Passenger Vessels,” 49 C.F.R. part 39, (e) U.S. DOJ regulations, “Nondiscrimination on the Basis of Disability in State and Local Government Services,” 28 C.F.R. part 35, (f) U.S. DOJ regulations, “Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities,” 28 C.F.R. part 36, (g) U.S. EEOC, “Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act,” 29 C.F.R. part 1630, (h) U.S. Federal Communications Commission regulations, “Telecommunications Relay Services and Related Customer Premises Equipment for Persons with Disabilities,” 47 C.F.R. part 64, Subpart F, (i) U.S. ATBCB regulations, “Electronic and Information Technology Accessibility Standard s,” 36 C.F.R. part 1194, (j) FTA regulations, “Transportation for Elderly and Handicapped Persons,” 49 C.F.R. part 609, (k) FTA Circular 4710.1, “Americans with Disabilities Act: Guidance,” and (l) Other applicable federal civil rights and nondiscrimination regulations and guidance. Incorporation of FTA Terms – 16.a. a. Federal Laws, Regulations, Requirements, and Guidance. The Subrecipient agrees: (1) To comply with the requirements of 49 U.S.C. chapter 53 and other applicable federal laws, regulations, and requirements in effect now or later that affect its third party procurements, (2) To comply with the applicable U.S. DOT Common Rules, and (3) To follow the most recent edition and any revisions of FTA Circular 4220.1, “Third Party Contra cting Guidance,” to the extent consistent with applicable federal laws, regulations, requirements, and guidance. Energy Conservation – 26.j a. Energy Conservation. The Subrecipient agrees to, and assures that its Subrecipients, if any, will comply with the mandatory energy standards and policies of its state energy conservation plans under the Energy Policy and Conservation Act, as amended, 42 U.S.C. § 6321 et seq., and perform an energy assessment for any building constructed, reconstructed, or modified with federal assistance required under FTA regulations, “Requirements for Energy Assessments,” 49 C.F.R. part 622, subpart C. DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 35 of 44 Version 10/23/19 Applicable to Awards exceeding $10,000 Section 11. Right of the Federal Government to Terminate. a. Justification. After providing written notice to the Subrecipient, the Subrecipient agrees that the Federal Government may suspend, suspend then terminate, or terminate all or any part of the federal assistance for the Award if: (1) The Subrecipient has failed to make reasonable progress implementing the Award, (2) The Federal Government determines that continuing to provide federal assistance to support the Award does not adequately serve the purposes of the law authorizing the Award, or (3) The Subrecipient has violated the terms of the Agreement, especially if that violation would endanger substantial performance of the Agreement. b. Financial Implications. In general, termination of federal assistance for the Award will not invalidate obligations properly incurred before the termination date to the extent that the obligations cannot be canceled. The Federal Government may recover the federal assistance it has provided for the Award, including the federal assistance for obligations properly incurred before the termination date, if it determines that the Subrecipient has misused its federal assistance by failing to make adequate progress, failing to make appropriate use of the Project property, or failing to comply with the Agreement, and require the Subrecipient to refund the entire amount or a lesser amount, as the Federal Government may determine including obligations properly incurred before the termination date. c. Expiration of the Period of Performance. Except for a Full Funding Grant Agreement, expiration of any period of performance established for the Award does not, by itself, constitute an expiration or termination of the Award; FTA may extend the period of performance to assure that each Formula Project or related activities and each Project or related activities funded with “no year” funds can receive FTA assistance to the extent FTA deems appropriate. Applicable to Awards exceeding $25,000 From Section 4. Ethics. a. Debarment and Suspension. The Subrecipient agrees to the following: (1) It will comply with the following requirements of 2 C.F.R. part 180, subpart C, as adopted and supplemented by U.S. DOT regulations at 2 C.F.R. part 1200. (2) It will not enter into any arrangement to participate in the development or implementation of the Underlying Agreement with any Third-Party Participant that is debarred or suspended except as authorized by: (a) U.S. DOT regulations, “Nonprocurement Suspension and Debarment,” 2 C.F.R. part 1200, (b) U.S. OMB regulatory guidance, “Guidelines to Agencies on Government-wide Debarment and Suspension (Nonprocurement),” 2 C.F.R. part 180, including any amendments thereto, (c) Executive Orders No. 12549, “Uniform Suspension, Debarment, or Exclusion of Participants from Procurement or Nonprocurement Activity,” October 13, 1994,” 31 U.S.C. § 6101 note, as amended by Executive Order No. 12689, “Debarment and Suspension,” August 16, 1989 , 31 U.S.C. § 6101 note, and (d) Other applicable federal laws, regulations, or guidance regarding participation with debarred or suspended Subrecipients or Third-Party Participants. (3) It will review the U.S. GSA “System for Award Management – Lists of Parties Excluded from Federal Procurement and Nonprocurement Programs,” https://www.sam.gov, if required by U.S. DOT regulations, 2 C.F.R. part 1200. (4) It will include, and require each Third-Party Participant to include, a similar provision in each lower tier covered transaction, ensuring that each lower tier Third Party Participant: (a) Complies with federal debarment and suspension requirements, and (b) Reviews the SAM at https://www.sam.gov, if necessary to comply with U.S. DOT regulations, 2 C.F.R. part 1200. (5) If the Subrecipient suspends, debars, or takes any similar action against a Third-Party Participant or individual, the Subrecipient will provide immediate written notice to the: (a) FTA Regional Counsel for the Region in which the Subrecipient is located or implements the Agreement, (b) FTA Headquarters Manager that administers the Grant or Cooperative Agreement, or (c) FTA Chief Counsel. DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 36 of 44 Version 10/23/19 Applicable to Awards exceeding the simplified acquisition threshold ($100,000-see Note) Note: Applicable when tangible property or construction will be acquired Section 15. Preference for United States Products and Services. Except as the Federal Government determines otherwise in writing, the Subrecipient agrees to comply with FTA’s U.S. domestic preference requirements and follow federal guidance, including: Buy America. The domestic preference procurement requirements of 49 U.S.C. § 5323(j), and FTA regulations, “Buy America Requirements,” 49 C.F.R. part 661, to the extent consistent with 49 U.S.C. § 5323(j). Section 39. Disputes, Breaches, Defaults, or Other Litigation. a. FTA Interest. FTA has a vested interest in the settlement of any violation of federal law, regulation, or disagreement involving the Award, the accompanying Agreement, and any Amendments thereto including, but not limited to, a default, breach, major dispute, or litigation, and FTA reserves the right to co ncur in any settlement or compromise. b. Notification to FTA. If a current or prospective legal matter that may affect the Federal Government emerges, the Subrecipient must promptly notify the FTA Chief Counsel, or FTA Regional Counsel for the Region in which the Subrecipient is located. (1) The types of legal matters that require notification include, but are not limited to, a major dispute, breach, default, litigation, or naming the Federal Government as a party to litigation or a legal disagreement in any forum for any reason. (2) Matters that may affect the Federal Government include, but are not limited to, the Federal Government’s interests in the Award, the accompanying Underlying Agreement, and any Amendments thereto, or the Federal Government’s administration or enforcement of federal laws, regulations, and requirements. (3) If the Subrecipient has credible evidence that a Principal, Official, Employee, Agent, or Third Party Participant of the Subrecipient, or other person has submitted a false claim under the False Claims Act, 31 U.S.C. § 3729 et seq., or has committed a criminal or civil violation of law pertaining to such matters as fraud, conflict of interest, bribery, gratuity, or similar misconduct involving federal assistance, the Subrecipient must promptly notify the U.S. DOT Inspector General, in addition to the FTA Chief Counsel or Regional Counsel for the Region in which the Subrecipient is located. c. Federal Interest in Recovery. The Federal Government retains the right to a proportionate share of any proceeds recovered from any third party, based on the percentage of the federal share for the Agreement. Notwithstanding the preceding sentence, the Subrecipient may return all liquidated damages it receives to its Award Budget for its Agreement rather than return the federal share of those liquidated damages to the Federal Government, provided that the Subrecipient receives FTA’s prior written concurrence. d. Enforcement. The Subrecipient must pursue its legal rights and remedies available under any third-party agreement, or any federal, state, or local law or regulation. Applicable to Awards exceeding $100,000 by Statute From Section 4. Ethics. a. Lobbying Restrictions. The Subrecipient agrees that neither it nor any Third-Party Participant will use federal assistance to influence any officer or employee of a federal agency, member of Congress or an employee of a member of Congress, or officer or employee of Congress on matters that involve the Agreement, including any extension or modification, according to the following: (1) Laws, Regulations, Requirements, and Guidance. This includes: (a) The Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352, as amended, (b) U.S. DOT regulations, “New Restrictions on Lobbying,” 49 C.F.R. part 20, to the extent consistent with 31 U.S.C. § 1352, as amended, and (c) Other applicable federal laws, regulations, requirements, and guidance prohibiting the use of federal assistance for any activity concerning legislation or appropriations designed to influence the U.S. Congress or a state legislature, and (2) Exception. If permitted by applicable federal law, regulations, requirements, or guidance, such lobbying activities described above may be undertaken through the Subrecipient’s or Subrecipient’s proper official channels. Section 26. Environmental Protections – Clean Air and Clean Water Other Environmental Federal Laws. The Subrecipient agrees to comply or facilitate compliance and assures that its Third Party Participants will comply or facilitate compliance with all applicable federal laws, regulations, and requirements, and will follow applicable guidance, including, but not limited to, the Clean Air Act, Clean Water Act, Wild and Scenic Rivers Act of 1968, Coastal Zone Management Act of 1972, the Endangered Species Act of 1973, Magnuson Stevens Fishery Conservation and Management Act, DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 37 of 44 Version 10/23/19 Resource Conservation and Recovery Act, Comprehensive Environmental Response, Compensation, and Liability Act, Executive Order No. 11990 relating to “Protection of Wetlands,” and E xecutive Order Nos. 11988 and 13690 relating to “Floodplain Management.”) Applicable with the Transfer of Property or Persons Section 15. Preference for United States Products and Services. Except as the Federal Government determines otherwise in writing, the Subrecipient agrees to comply with FTA’s U.S. domestic preference requirements and follow federal guidance, including: a. Buy America. The domestic preference procurement requirements of 49 U.S.C. § 5323(j), and FTA regulations, “Buy America Requirements,” 49 C.F.R. part 661, to the extent consistent with 49 U.S.C. § 5323(j), b. Cargo Preference. Preference – Use of United States-Flag Vessels. The shipping requirements of 46 U.S.C. § 55305, and U.S. Maritime Administration regulations, “Cargo Preference – U.S.-Flag Vessels,” 46 C.F.R. part 381, and c. Fly America. The air transportation requirements of Section 5 of the International Air Transportation Fair Competitive Practices Act of 1974, as amended, 49 U.S.C. § 40118, and U.S. General Services Administration (U.S. GSA) regulations, “Use of United States Flag Air Carriers,” 41 C.F.R. §§ 301 -10.131 – 301-10.143. Applicable to Construction Activities Section 24. Employee Protections. a. Awards Involving Construction. The Subrecipient agrees to comply and assures that each Third-Party Participant will comply with all federal laws, regulations, and requirements providing protections for construction employees involved in each Project or related activities with federal assistance provided through the Agreement, including the: (1) Prevailing Wage Requirements of: (a) Federal transit laws, specifically 49 U.S.C. § 5333(a), (FTA’s “Davis -Bacon Related Act”), (b) The Davis-Bacon Act, 40 U.S.C. §§ 3141 – 3144, 3146, and 3147, and (c) U.S. DOL regulations, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction (also Labor Standards Provisions Applicable to Nonconstruction Contracts Subject to the Contract Work Hours and Safety Standards Act),” 29 C.F.R . part 5. (2) Wage and Hour Requirements of: (a) Section 102 of the Contract Work Hours and Safety Standards Act, as amended, 40 U.S.C. § 3702, and other relevant parts of that Act, 40 U.S.C. § 3701 et seq., an (b) U.S. DOL regulations, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction (also Labor Standards Provisions Applicable to Nonconstruction Contracts Subject to the Contract Work Hours and Safety Standards Act),” 29 C.F.R. part 5. (3) “Anti-Kickback” Prohibitions of: (a) Section 1 of the Copeland “Anti-Kickback” Act, as amended, 18 U.S.C. § 874, (b) Section 2 of the Copeland “Anti-Kickback” Act, as amended, 40 U.S.C. § 3145, and (c) U.S. DOL regulations, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States,” 29 C.F.R. part 3. (4) Construction Site Safety of: (a) Section 107 of the Contract Work Hours and Safety Standards Act, as amended, 40 U.S.C. § 3704, an d other relevant parts of that Act, 40 U.S.C. § 3701 et seq., and (b) U.S. DOL regulations, “Recording and Reporting Occupational Injuries and Illnesses,” 29 C.F.R. part 1904; “Occupational Safety and Health Standards,” 29 C.F.R. part 1910; and “Safety and Health Regulations for Construction,” 29 C.F.R. part 1926. From Section 16 b. Bonding. The Subrecipient agrees to comply with the following bonding requirements and restrictions as provided in federal regulations and guidance: 1 Construction. As provided in federal regulations and modified by FTA guidance, for each Project or related activities implementing the Agreement that involve construction, it will provide bid guarantee bonds, contract performance bonds, and payment bonds. 2 Activities Not Involving Construction. For each Project or related activities implementing the Agreement not involving construction, the Subrecipient will not impose excessive bonding and will follow FTA guidance. DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 38 of 44 Version 10/23/19 From Section 23 c. Seismic Safety. The Subrecipient agrees to comply with the Earthquake Hazards Reduction Act of 1977, as amended, 42 U.S.C. § 7701 et seq., and U.S. DOT regulations, “Seismic Safety,” 49 C.F.R. part 41, specifically, 49 C.F.R. § 41.117. Section 12 Civil Rights D.3 d. Equal Employment Opportunity Req uirements for Construction Activities. Comply, when undertaking “construction” as recognized by the U.S. Department of Labor (U.S. DOL), with: a. U.S. DOL regulations, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor,” 41 C.F.R. chapter 60, and b. Executive Order No. 11246, “Equal Employment Opportunity in Federal Employment,” September 24, 1965, 42 U.S.C. § 2000e note, as amended by any later Executive Order that amends or supersedes it, referenced in 42 U.S.C. § 2000e note. Applicable to Nonconstruction Activities From Section 24. Employee Protections a. Awards Not Involving Construction. The Subrecipient agrees to comply and assures that each Third Party Participant will comply with all federal laws, regulations, and requirements providing wage and hour protections for nonconstruction employees, including Section 102 of the Contract Work Hours and Safety Standards Act, as amended, 40 U.S.C. § 3702, and other relevant parts of that Act, 40 U.S.C. § 3701 et s eq., and U.S. DOL regulations, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction (also Labor Standards Provisions Applicable to Nonconstruction Contracts Subject to the Contract Work Hours and Safety Standards Act),” 29 C.F.R. part 5. Applicable to Transit Operations a. Public Transportation Employee Protective Arrangements . As a condition of award of federal assistance appropriated or made available for FTA programs involving public transportation ope rations, the Subrecipient agrees to comply and assures that each Third-Party Participant will comply with the following employee protective arrangements of 49 U.S.C. § 5333(b): (1) U.S. DOL Certification. When its Awarded, the accompanying Agreement, or any Amendments thereto involve public transportation operations and are supported with federal assistance appropriated or made available for 49 U.S.C. §§ 5307 – 5312, 5316, 5318, 5323(a)(1), 5323(b), 5323(d), 5328, 5337, 5338(b), or 5339, or former 49 U.S.C. §§ 5308, 5309, 5312, or other provisions of law as required by the Federal Government, U.S. DOL must provide a certification of employee protective arrangements before FTA may provide federal assistance for that Award. The Subrecipient agrees that the certification issued by U.S. DOL is a condition of the Agreement and that the Subrecipient must comply with its terms and conditions. (2) Special Warranty. When its Agreement involves public transportation operations and is supported with federal assistance appropriated or made available for 49 U.S.C. § 5311, U.S. DOL will provide a Special Warranty for its Award, including its Award of federal assistance under the Tribal Transit Program. The Subrecipient agrees that its U.S. DOL Special Warranty is a condition of the Agreement and the Subrecipient must comply with its terms and conditions. (3) Special Arrangements for Agreements for Federal Assistance Authorized under 49 U.S.C. § 5310. The Subrecipient agrees, and assures that any Third Party Participant providing public transportation operations will agree, that although pursuant to 49 U.S.C. § 5310, and former 49 U.S.C. §§ 5310 or 5317, FTA has determined that it was not “necessary or appropriate” to apply the conditions of 49 U.S.C. § 5333(b) to any Subagreement participating in the program to provide public transportation for seniors (elderly individuals) and individuals with disabilities, FTA reserves the right to make case-by- case determinations of the applicability of 49 U.S.C. § 5333(b) for all trans fers of funding authorized under title 23, United States Code (flex funds), and make other exceptions as it deems appropriate. Section 28. Charter Service. a. Prohibitions. The Recipient agrees that neither it nor any Third -Party Participant involved in the Award will engage in charter service, except as permitted under federal transit laws, specifically 49 U.S.C. § 5323(d), (g), and (r), FTA regulations, “Charter Service,” 49 C.F.R. part 604, any other Federal Charter Service regulations, federal requirements, or federal guidance. b. Exceptions. Apart from exceptions to the Charter Service restrictions in FTA’s Charter Service regulations, FTA has established the following additional exceptions to those restrictions: DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 39 of 44 Version 10/23/19 (1) FTA’s Charter Service restrictions do not apply to equipment or facilities supported with federal assistance appropriated or made available for 49 U.S.C. § 5307 to support a Job Access and Reverse Commute (JARC)- type Project or related activities that would have been eligible for assistance under repealed 49 U.S.C. § 5316 in effect in Fiscal Year 2012 or a previous fiscal year, provided that the Subrecipient uses that federal assistance for FTA program purposes only, and (2) FTA’s Charter Service restrictions do not apply to equipment or fa cilities supported with the federal assistance appropriated or made available for 49 U.S.C. § 5310 to support a New Freedom -type Project or related activities that would have been eligible for federal assistance under repealed 49 U.S.C. § 5317 in effect in Fiscal Year 2012 or a previous fiscal year, provided the Subrecipient uses that federal assistance for program purposes only. c. Violations. If it or any Third Party Participant engages in a pattern of violations of FTA’s Charter Service regulations, FTA may require corrective measures and remedies, including withholding an amount of federal assistance as provided in FTA’s Charter Service regulations, 49 C.F.R. part 604, appendix D, or barring it or the Third Party Participant from receiving federal assistance provided in 49 U.S.C. chapter 53, 23 U.S.C. § 133, or 23 U.S.C. § 142. Section 29. School Bus Operations. a. Prohibitions. The Subrecipient agrees that neither it nor any Third Party Participant that is participating in its Award will engage in school bus operations exclusively for the transportation of students or school personnel in competition with private school bus operators, except as permitted by federal transit laws, 49 U.S.C. § 5323(f) or (g), FTA regulations, “School Bus Operations,” 49 C.F.R. part 605, and any other applicable federal “School Bus Operations” laws, regulations, federal requirements, or applicable federal guidance. b. Violations. If a Subrecipient or any Third-Party Participant has operated school bus service in violation of FTA’s School Bus laws, regulations, or requirements, FTA may require the Subrecipient or Third Party Participant to take such remedial measures as FTA considers appropriate, or bar the Subrecipient or Third Party Participant from receiving federal transit assistance. From Section 35 Substance Abuse c. Alcohol Misuse and Prohibited Drug Use. (1) Requirements. The Subrecipient agrees to comply and assures that its Third -Party Participants will comply with: (a) Federal transit laws, specifically 49 U.S.C. § 5331, (b) FTA regulations, “Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations,” 49 C.F.R. part 655, and (c) Applicable provisions of U.S. DOT regulations, “Procedures for Transportation Workplace Drug and Alcohol Testing Programs,” 49 C.F.R. part 40. (2) Remedies for Non-Compliance. The Subrecipient agrees that if FTA determines that the Subrecipient or a Third-Party Participant receiving federal assistance under 49 U.S.C. chapter 53 is not in compliance with 49 C.F.R. part 655, the Federal Transit Administrator may bar that Subrecipient or Third Party Participant from receiving all or a portion of the federal transit assistance for public transportation it would otherwise receive. Applicable to Planning, Research, Development, and Documentation Projects Section 17. Patent Rights. a. General. The Subrecipient agrees that: (1) Depending on the nature of the Agreement, the Federal Government may acquire patent rights when the Subrecipient or Third-Party Participant produces a patented or patentable invention, improvement, or discovery; (2) The Federal Government’s rights arise when the patent or patentable information is conceived or reduced to practice with federal assistance provided through the Agreement; or (3) When a patent is issued or patented information becomes available as described in the preceding section 17.a.(2) of this Master Agreement (FTA MA(23)), the Subrecipient will notify FTA immediately and provide a detailed report satisfactory to FTA. b. Federal Rights. The Subrecipient agrees that: (1) Its rights and responsibilities, and each Third-Party Participant’s rights and responsibilities , in that federally assisted invention, improvement, or discovery will be determined as provided in applicable federal laws, regulations, requirements, and guidance, including any waiver thereof, and (2) Unless the Federal Government determines otherwise in writing, irrespective of its status or the status of any Third Party Participant as a large business, small business, state government, state instrumentality, local government, Indian tribe, nonprofit organization, institution of higher education, or individual, the DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 40 of 44 Version 10/23/19 Subrecipient will transmit the Federal Government’s patent rights to FTA, as specified in 35 U.S.C. § 200 et seq., and U.S. Department of Commerce regulations, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” 37 C.F.R. part 401. c. License Fees and Royalties. Consistent with the applicable U.S. DOT Common Rules, the Subrecipient agrees that license fees and royalties for patents, patent applications, and inventions produced with federal assistance provided through the Agreement are program income and must be used in compliance with applicable federal requirements. Section 18. Rights in Data and Copyrights. a. Definition of “Subject Data.” As used in this section, “subject data” means recorded information whether or not copyrighted, and that is delivered or specified to be delivered as required by the Agreement. Examples of “subject data” include, but are not limited to computer software, standards, specifications, engineering drawings and associated lists, process sheets, manuals, technical reports, catalog item identifications, and related information, but do not include financial reports, cost analyses, or other similar information used for performance or administration of the Agreement. b. General Federal Restrictions. The following restrictions apply to all subject data first produced in the performance of the Agreement: (1) Prohibitions. The Subrecipient may not publish or reproduce any subject data, in whole, in part, or in any manner or form, or permit others to do so. (2) Exceptions. The prohibitions do not apply to publications or reproductions for the Subrecipient’s own internal use, an institution of higher learning, the portion of subject data that the Federal Government has previously released or approved for release to the public, or the portion of data that has the Federal Government’s prior written consent for release. c. Federal Rights in Data and Copyrights. The Subrecipient agrees that: (1) General. It must provide a license to its “subject data” to the Federal Government that is royalty -free, non- exclusive, and irrevocable. The Federal Government’s license must permit the Federal Government to reproduce, publish, or otherwise use the subject data or permit other entities or individuals to use the subject data provided those actions are taken for Federal Government purposes, and (2) U.S. DOT Public Access Plan – Copyright License. The Subrecipient grants to U.S. DOT a worldwide, non- exclusive, non-transferable, paid-up, royalty-free copyright license, including all rights under copyright, to any and all Publications and Digital Data Sets as such terms are defined in the U.S. DOT Public Access plan, resulting from scientific research funded either fully or partially by this funding agreement. The Subrecipient herein acknowledges that the above copyright license grant is firs t in time to any and all other grants of a copyright license to such Publications and/or Digital Data Sets, and that U.S. DOT shall have priority over any other claim of exclusive copyright to the same. d. Special Federal Rights in Data for Research, Development, Demonstration, Deployment, Technical Assistance, and Special Studies Programs. In general, FTA’s purpose in providing federal assistance for a research, development, demonstration, deployment, technical assistance, or special studies program is to increase transportation knowledge, rather than limit the benefits of the Award to the Subrecipient and its Third-Party Participants. Therefore, the Subrecipient agrees that: (1) Publicly Available Report. When an Award providing federal assistance for any of the programs described above is completed, it must provide a report of the Agreement that FTA may publish or make available for publication on the Internet. (2) Other Reports. It must provide other reports related to the Award that FTA may request. (3) Availability of Subject Data. FTA may make available its copyright license to the subject data, and a copy of the subject data to any FTA Recipient or any Third -Party Participant at any tier, except as the Federal Government determines otherwise in writing. (4) Identification of Information. It must identify clearly any specific confidential, privileged, or proprietary information submitted to FTA. (5) Incomplete. If the Award is not completed for any reason whatsoever, all data developed with federa l assistance for the Award becomes “subject data” and must be delivered as the Federal Government may direct. (6) Exception. This section does not apply to an adaptation of any automatic data processing equipment or program that is both for the Subrecipient’s use and acquired with FTA capital program assistance. e. License Fees and Royalties. Consistent with the applicable U.S. DOT Common Rules, the Subrecipient agrees that license fees and royalties for patents, patent applications, and inventions produced with federal assistance provided through the Agreement are program income and must be used in compliance with federal applicable requirements. DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 41 of 44 Version 10/23/19 f. Hold Harmless. Upon request by the Federal Government, the Subrecipient agrees that if it intentionally violates any proprietary rights, copyrights, or right of privacy, and if its violation under the preceding section occurs from any of the publication, translation, reproduction, delivery, use or disposition of subject data, then it will indemnify, save, and hold harmless against any liability, including costs and expenses of the Federal Government’s officers, employees, and agents acting within the scope of their official duties. The Subrecipient will not be required to indemnify the Federal Government for any liability described in the preceding sentence, if the violation is caused by the wrongful acts of federal officers, employees or agents, or if indemnification is prohibited or limited by applicable state law. g. Restrictions on Access to Patent Rights. Nothing in this section of this Master Agreement (FTA MA(23)) pertaining to rights in data either implies a license to the Federal Government under any patent, or may be construed to affect the scope of any license or other right otherwise granted to the Feder al Government under any patent. h. Data Developed Without Federal Assistance or Support. The Subrecipient agrees that in certain circumstances it may need to provide to FTA data developed without any federal assistance or support. Nevertheless, this section generally does not apply to data developed without federal assistance, even though that data may have been used in connection with the Award. The Subrecipient agrees that the Federal Government will not be able to protect data developed without federal assistance from unauthorized disclosure unless that data is clearly marked “Proprietary,” or “Confidential.” i. Requirements to Release Data. The Subrecipient understands and agrees that the Federal Government may be required to release data and information the Subrecipient submits to the Federal Government as required under: (1). The Freedom of Information Act (FOIA), 5 U.S.C. § 552, (2) The U.S. DOT Common Rules, (3) U.S. DOT Public Access Plan, which provides that the Subrecipient agrees to satisfy the reporting and compliance requirements as set forth in the U.S. DOT Public Access plan, including, but not limited to, the submission and approval of a Data Management Plan, the use of Open Researcher and Contributor ID (ORCID) numbers, the creation and maintenance of a Research Project record in the Transportation Research Board’s (TRB) Research in Progress (RiP) database, and the timely and complete submission of all required publications and associated digital data sets as such terms are defined in the DOT Public Access plan. Additional information about how to comply with the requirements can be found at: http://ntl.bts.gov/publicaccess/howtocomply.html, or (4) Other federal laws, regulations, requirements, and guidance concerning access to records pertai ning to the Award, the accompanying Agreement, and any Amendments thereto. Miscellaneous Special Requirements From Section 12. Civil Rights. a. Disadvantaged Business Enterprise (and Prompt Payment and Return of Retainage). To the extent authorized by applicable federal laws, regulations, or requirements, the Subrecipient agrees to facilitate, and assures that each Third-Party Participant will facilitate, participation by small business concerns owned and controlled by socially and economically disadvantaged individuals, also referred to as “Disadvantaged Business Enterprises” (DBEs), in the Agreement as follows: (1) Statutory and Regulatory Requirements. The Subrecipient agrees to comply with: (a) Section 1101(b) of the FAST Act, 23 U.S.C. § 101 note, (b) U.S. DOT regulations, “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs,” 49 C.F.R. part 26, and (c) Federal transit law, specifically 49 U.S.C. § 5332, as provided in section 12 of this Mast er Agreement (FTA MA(23)). (2) DBE Program Requirements. A Subrecipient that receives planning, capital and/or operating assistance and that will award prime third-party contracts exceeding $250,000 the requirements of 49 C.F.R. part 26. (3) Special Requirements for a Transit Vehicle Manufacturer (TVM). The Subrecipient agrees that: (a) TVM Certification. Each TVM, as a condition of being authorized to bid or propose on FTA-assisted transit vehicle procurements, must certify that it has complied with the requirements of 49 C.F.R. part 26, and (b) Reporting TVM Awards. Within 30 days of any third -party contract award for a vehicle purchase, the Subrecipient must submit to FTA the name of the TVM contractor and the total dollar value of the third party contract, and notify FTA that this information has been attached to FTA’s electronic award management system. The Subrecipient must also submit additional notifications if options are exercised in subsequent years to ensure that the TVM is still in good standin g. (4) Assurance. As required by 49 C.F.R. § 26.13(a): (a) Recipient Assurance. The Subrecipient agrees and assures that: DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 42 of 44 Version 10/23/19 1 It must not discriminate on the basis of race, color, national origin, or sex in the award and performance of any FTA or U.S. DOT-assisted contract, or in the administration of its DBE program or the requirements of 49 C.F.R. part 26, 2 It must take all necessary and reasonable steps under 49 C.F.R. part 26 to ensure nondiscrimination in the award and administration of U.S. DOT assisted contracts, 3 Its DBE program, as required under 49 C.F.R. part 26 and as approved by U.S. DOT, is incorporated by reference and made part of the Underlying Agreement, and 4 Implementation of its DBE program approved by U.S. DOT is a legal obligation and failure to carry out its terms shall be treated as a violation of the Master Agreement (FTA MA(23)). (b) Subrecipient/Third Party Contractor/Third Party Subcontractor Assurance. The Subrecipient agrees and assures that it will include the following assurance in each subagreement and third-party contract it signs with a Subrecipient or Third-Party Contractor and agrees to obtain the agreement of each of its Subrecipients, Third Party Contractors, and Third Party Subcontractors to include the following assurance in every subagreement and third party contract it signs: 1 The Subrecipient, each Third-Party Contractor, and each Third-Party Subcontractor must not discriminate on the basis of race, color, national origin, or sex in the award and performance of any FTA or U.S. DOT-assisted subagreement, third party contract, and third party subcontract, as applicable, and the administration of its DBE program or the requirements of 49 C.F.R. part 26, 2 The Subrecipient, each Third-Party Contractor, and each Third-Party Subcontractor must take all necessary and reasonable steps under 49 C.F.R. part 26 to ensure nondiscrimination in the award and administration of U.S. DOT-assisted subagreements, third party contracts, and third party subcontracts, as applicable, 3 Failure by the Subrecipient and any of its Third Party Contractors or Third Party Subcontractors to carry out the requirements of subparagraph 12.e(4)(b) (of FTA MA(23)) is a material breach of their subagreement, third party contract, or third party subcontra ct, as applicable, and 4 The following remedies, or such other remedy as the Subrecipient deems appropriate, include, but are not limited to, withholding monthly progress payments; assessing sanctions; liquidated damages; and/or disqualifying the Subrecipient, Third Party Contractor, or Third -Party Subcontractor from future bidding as non-responsible. (5) Remedies. Upon notification to the Subrecipient of its failure to carry out its approved program, FTA or U.S. DOT may impose sanctions as provided for under 49 C.F.R. part 26, and, in appropriate cases, refer the matter for enforcement under either or both 18 U.S.C. § 1001, and/or the Program Fraud Civil Remedies Act of 1986, 31 U.S.C. § 3801 et seq. From Section 12. Civil Rights. b. Nondiscrimination on the Basis of Disability. The Subrecipient agrees to comply with the following federal prohibitions against discrimination on the basis of disability: (1) Federal laws, including: (a) Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, which prohibits discrimination on the basis of disability in the administration of federally assisted Programs, Projects, or activities, (b) The Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. § 12101 et seq., which requires that accessible facilities and services be made available to individuals with disabilities: 1 For FTA Recipients generally, Titles I, II, and III of the ADA apply, but 2 For Indian Tribes, Titles II and III of the ADA apply, but Title I of the ADA does not apply because it exempts Indian Tribes from the definition of “employer,” (c) The Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq., which requires that buildings and public accommodations be accessible to individuals with disabilities, (d) Federal transit law, specifically 49 U.S.C. § 5332, which now includes disability as a prohibited basis for discrimination, and (e) Other applicable federal laws, regulations, and requirements pertaining to access for seniors or individuals with disabilities. (2) Federal regulations and guidance, including: (a) U.S. DOT regulations, “Transportation Services for Individuals with Disabilities (ADA),” 49 C.F.R. part 37, (b) U.S. DOT regulations, “Nondiscrimination on the Basis of Disability in Programs and Activities Receiving or Benefiting from Federal Financial Assistance,” 49 C.F.R. part 27, (c) Joint U.S. Architectural and Transportation Barriers Compliance Board (U.S. ATBCB) and U.S. DOT regulations, “Americans With Disabilities (ADA) Accessibility Specifications for Transportation Vehicles,” 36 C.F.R. part 1192 and 49 C.F.R. part 38, DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 43 of 44 Version 10/23/19 (d) U.S. DOT regulations, “Transportation for Individuals with Disabilities: Passenger Vessels,” 49 C.F.R. part 39, (e) U.S. DOJ regulations, “Nondiscrimination on the Basis of Disability in State and Local Government Services,” 28 C.F.R. part 35, (f) U.S. DOJ regulations, “Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities,” 28 C.F.R. part 36, (g) U.S. EEOC, “Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act,” 29 C.F.R. part 1630, (h) U.S. Federal Communications Commission regulations, “Telecommunications Relay Services and Related Customer Premises Equipment for Persons with Disabilities,” 47 C.F.R. part 64, Subpart F, (i) U.S. ATBCB regulations, “Electronic and Information Technology Accessibility Standards,” 36 C.F.R. part 1194, (j) FTA regulations, “Transportation for Elderly and Handicapped Persons,” 49 C.F.R. part 609, (k) FTA Circular 4710.1, “Americans with Disabilities Act: Guidance,” and (l) Other applicable federal civil rights and nondiscrimination regulations and guidance . Section 16. Procurement. For Assignability a. Federal Laws, Regulations, Requirements, and Guidance. The Subrecipient agrees: (1 To comply with the requirements of 49 U.S.C. chapter 53 and other applicable federal laws, regulations, and requirements in effect now or later that affect its third-party procurements, (2) To comply with the applicable U.S. DOT Common Rules, and (3) To follow the most recent edition and any revisions of FTA Circular 4220.1, “Third Party Contracting Guidance,” to the extent consistent with applicable federal laws, regulations, requirements, and guidance. State Requirements Section 37. Special Notification Requirements for States. a. Types of Information. To the extent required under federal law, the State, agrees to provide the following information about federal assistance awarded for its State Program, Project, or related activities: (1) The Identification of FTA as the federal agency providing the federal assistance for a State Program or Project, (2) The Catalog of Federal Domestic Assistance Number of the program from which the federal assistance for a State Program or Project is authorized, and (3) The amount of federal assistance FTA has provided for a State Program or Project. b. Documents. The State agrees to provide the information required under this provision in the following documents: (1) applications for federal assistance, (2) requests for proposals, or solicitations, (3) forms, (4) notifications, (5) press releases, and (6) other publications.. DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement Contract Number: 21-HTR-ZL-00302/491002604 Page 44 of 44 Version 10/23/19 EXHIBIT E, VERIFICATION OF PAYMENT This checklist is to assist the Subrecipient in preparation of its billing packets to State. This checklist is provided as guidance and is subject to change by State. State shall provide notice of any such changes to Subrecipient. All items may not apply to your particular entity. State’s goal is to reimburse Subrecipients as quickly as possible and a well organized and complete billing packet helps to expedite payment. Verification of Payment –  General Ledger Report must have the following:  Identify check number or EFT number;  If no check number is available, submit Accounts Payable Distribution report with the General Ledger;  In-Kind (must be pre-approved by State) and/or cash match;  Date of the report;  Accounting period;  Current period transactions; and  Account coding for all incurred expenditures.  If no General Ledger Report, all of the following are acceptable :  copies of checks;  check registers; and  paycheck stub showing payment number, the amount paid, the check number or electronic funds transfer (EFT), and the date paid.  State needs to ensure that expenditures incurred by the local agencies have been paid by Party before State is invoiced by Party.  Payment amounts should match the amount requested on the reimbursement. Additional explanation and documentation is required for any variances. In-Kind or Cash Match – If an entity wishes to use these types of match, they must be approved by State prior to any Work taking place.  If in-kind or cash match is being used for the Local Match, the in-kind or cash match portion of the project must be included in the project application and the statement of work attached to the Agreement or purchase order. FTA does not require pre-approval of in-kind or cash match, but State does.  General ledger must also show the in-kind and/or cash match. Indirect costs – If an entity wishes to use indirect costs, the rate must be approved by State prior to applying it to the reimbursements.  If indirect costs are being requested, an approved indirect letter from State or your cognizant agency for indirect costs, as defined in 2 CCR §200. 19, must be provided. The letter must state what indirect costs are allowed, the approved rate and the time period for the approval. The indirect cost plan must be reconciled ann ually and an updated letter submitted each year thereafter. Fringe Benefits- Considered part of the Indirect Cost Rate and must be reviewed and approved prior to including these costs in the reimbursements.  Submit an approval letter from the cognizant agency for indirect costs, as defined in 2 CCR §200. 19, that verifies fringe benefit, or  Submit the following fringe benefit rate proposal package to State Audit Division:  Copy of Financial Statement;  Personnel Cost Worksheet;  State of Employee Benefits; and  Cost Policy Statement. DocuSign Envelope ID: 116DE335-0848-44CA-9CFD-E0EC582770E0 ATTACHMENT: State of Colorado Grant Agreement 970-390-2014 ewilson@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Eva Wilson, Mobility Director RE: MOU – The Colorado EV Rental Car Program DATE: June 14, 2020 SUMMARY: The Colorado Energy Office and the Office of Economic Development and International Trade, Colorado Tourism Office have partnered with the Electrification Coalition to develop an electric vehicle (“EV”) Rental Car Program in Eagle County. The Colorado EV Rental Car Program will provide an opportunity for consumers to experience the thrill of driving an electric vehicle for an extended period of time and reduce the GHG impact of rental car fleets. By utilizing the EV rental car network at Eagle County Regional Airport, Colorado visitors will have the opportunity to become familiar with the capabilities and benefits of EVs, ultimately increasing the likelihood that they will purchase their own EV in the future. Further, consumers will have the chance to experience the performance and utility of electric vehicles in mountainous terrain and winter weather, thereby helping to bust the myth that EVs do not perform well in the cold and for outdoor recreation. Renting an EV will also allow tourists to enjoy Colorado’s mountains while reducing the carbon footprint of their trip. This program will deliver an opportunity for a trial run on EVs in a rental car application before scaling to other parts of the state, as well as larger airports such as Denver International Airport. Avon Recreation Center will provide two one-day passes as an EV rental incentive at a retail value of $30. This partnership will not only encourage EV use and reduce carbon emissions, but it will also showcase one of Avon’s flagship amenities, the Avon Recreation Center. FINANCIAL CONSIDERATIONS: The retail value for two (2) one-day Rec Center passes is $30. At this planning stage, the number of EVs for rental has not been determined. For discussion purposes, assuming 10 EVs available for rental with a 5-day average rental term, the monthly retail value could be $1,800/month. We anticipate sales/revenue from EV visitors once they have been introduced to the Rec Center. RECOMMENDATION: I recommend participating in the Colorado EV Rental Program. PROPOSED MOTION : “I move to enter into a Memorandum of Understanding for the Colorado EV Car Program.” Thanks, Eva ATTACHMENTS: Memorandum of Understanding. MEMORANDUM OF UNDERSTAND ING between the COLORADO ENERGY OFFICE, the COLORADO TOURISM OFFICE and the TOWN of AVON. THIS MEMORANDUM OF UNDERSTANDING (“MOU”) is entered into by and between the STATE OF COLORADO (the “State”), acting by and through the Colorado En ergy Office (the “CEO”), the Office of Economic Development and International Trade, Colorado Tourism Office (the “CTO”) and the Town of Avon (the “Perk Partner”). “Party” means the State, CEO, CTO, or Perk Partner and “Parties” means both the State/CEO/CTO and the Perk Partner. RECITALS WHE REAS, the Parties are working together collaboratively to accelerate the rental of electric vehicles at Eagle County Airport and adhere to terms that are mutually beneficial. NOW, THEREFORE, for and in consideration of the mutual covenants and the representations and covenants contained herein, the parties hereto agree as follows: 1. Effective Date of MOU. This MOU shall become effective up on the later date on which the Director or auth orized designee of the CEO, the CTO or the representative for the Rental Car Agency has signed it. 2. Term of MOU. The Parties’ respective performances under this MOU shall commence on the Effective Date and expire three years from date of signature or at the end of the term of services. 3. Responsibilities of the CEO to Perk Partner. The responsibilities of the CEO include, but are not limited to: a. Upon execution of this MOU, the CEO will assign a staff person to provide advice and technical assistance throughout the lifecycle of EV Rental Car Program; b. The CEO will provide information on electric vehicles and the charging station funding opportunities and infrastructure available; c. The CEO will provide personalized electric vehicle and electric vehicle charging consulting through its ReCharge Colorado program 4. Responsibilities of the CTO to Perk Partner. The responsibilities of the CTO include, but are not limited to: a. Upon execution of this MOU, the CTO will assign a staff person to participate in partner meetings and provide guidance throughout the lifecycle of EV Rental Car Program; b. CTO will include promotion of the EV Rental Car Program into its promotion of electric vehicle tourism on Colorado.com and other communication channels ATTACHMENT: MOU Colorado Energy Office owned by the CTO; c. CTO will include the EV Rental Car Program as an option for earned media promotion for publications that are seeking low impact travel experiences in Colorado. 5. Responsibilities of the Perk Partner. The responsibilities of the Perk Partner include: a. By executing this MOU, Perk Partner agrees to program participation in the CEO/CTO EV Rental Car Program and engage the CEO and the CTO for assistance in all stages of the Program, including project development; b. Perk Partner will provide two (2) one-day passes to the Avon Recreation Center; c. Perk Partner will cover the cost of the perk for the duration of the agreement; d. Perk Partner will provide education to staff and renters about the program as needed; e. Perk Partner will update its business listing on Colorado.com to reflect their participation in the EV Rental Car Program and the perk(s) they are providing to support it; f. During project reviews and any other reviews, Perk Partner will endeavor to address recommendations from the CEO and the CTO; g. As requested by the CEO or the CTO and as needed, Perk Partner agrees to provide the CEO and the CTO with information regarding metrics and activities on uptake of perks, consumer satisfaction, and other EV-related program elements. 6. THIS MOU IS NOT INT ENDED TO CREATE, NOR WILL THIS MOU BE CONSTRUED OR INTERPRETED AS CREATING A LEGALLY BINDING AND EN FORCEABLE CONTRACT BET WEEN THE PARTIES. IN THE EVENT EITHER PARTY FAILS TO FULLY COMPLY WITH THE PROVISIONS OF THIS MOU, THERE WILL BE NO LEGAL OR EQUITABLE REME DIES AVAILABLE TO EITHER PARTY. THE SOLE REMEDY AVAILABLE TO THE PARTIES FOR FAILURE TO FULLY COMPLY WITH THE PROVISIONS O F THIS MOU IS TO TER MINATE THIS MOU. THE RENTAL CAR AGENCY ACK NOWLEDGES AND AGREES THAT CEO’S AND CTO’s SERVICES MAY INCLUDE ADVICE AND RECOMMENDATIONS, BUT ALL DE CISIONS IN CONNECTION WITH THE RENTAL CAR AGENCY’S PROJECT SHALL BE THE SOLE RESPONSIBILITY OF THE RENTAL CAR AGENCY, ITS AGENTS AND CONTRACTOR S. 7. Notwithstanding any provision of this MOU to the contrary, in the event the State violates any provision of this MOU, the State shall suffer no financial penalty or consequence. ATTACHMENT: MOU Colorado Energy Office 8. Signatures. IN WITNESS WHEREOF, the Parties have executed this MOU as of the Effective Date. STATE OF COLORADO, acting by and through the COLORADO ENERGY OFFICE and the COLORADO TOURISM OFFICE: Town of Avon: Will Toor, Director Colorado Energy Office Date Perk Partner Representative Name: Eric Heil Title: Town Manager Date _X_ Yes! I have reviewed this MOU and accept the terms. ___ No thank you. I have reviewed this MOU and decline the terms. Jill Corbin, Interim Director Colorado Tourism Office Date ATTACHMENT: MOU Colorado Energy Office 970-748-4413 mpielsticker@avon.org TO: Honorable Mayor Smith Hymes and Council Members FROM: Matt Pielsticker, AICP, Planning Director RE: Riverfront Lane Revocable License Agreement DATE: June 15, 2021 INTRODUCTION: The Planning and Zoning Commission (“PZC”) recently approved a Minor Development Plan application for improvements within the Riverfront Lane Right-of-Way (“ROW”). The improvements include parking and landscaping and are further described below. Council can authorize the construction and on-going maintenance of these improvements by taking action on the attached (“Exhibit A”) Revocable License Agreement. SUMMARY: Developing 42 Riverfront Lane will include the removal of the large vehicle and delivery pull-off area located immediately east of the Westin loading dock. That parking area was constructed for the benefit of the Westin Hotel but is located on the adjacent 42 Riverfront property. Development plans for a condominium building on 42 Riverfront Lane were approved on May 11, 2021, by Town Council. That approval included the following condition: “A new design for parking on Riverfront Lane will be implemented before any closure of the current short-term parking area related to building on 42 Riverfront Lane.” PZC ACTION: Public hearings with PZC were conducted to review these improvements. The plans include providing a parallel parking area on the north side of Riverfront Lane, and a pull off on the south side of Riverfront Lane on the west side of the Westin loading dock. A skier shuttle pull off was included in the design plans. The skier shuttle pull off design was modified based upon PZC input, and moved further east to the area where it currently stages within the Riverfront Lane ROW. • May 18, 2021 - PZC approved the north and south parking areas, and associated landscaping and lighting. • June 1, 2021 – PZC approved a revised design for the Skier Shuttle pull off area. Final approved plans are attached (“Exhibit B”) to this staff report. These plans are intended to become an exhibit to the Revocable License Agreement. . Page 2 of 2 RECOMMENDATION: I recommend that the Town Council approve the Revocable License Agreement and authorize the construction of the improvements as designed and approved by PZC. In order to proceed with construction a Registered and Licensed Contractor would need to receive a ROW permit through the Public Works Department. OPTIONS: The Town Council has the following optional actions related to this agreement: • Continue action to future meeting; • Approve as drafted; • Approve with amendments; or • Deny the request. PROPOSED MOTION: “I move to approve Revocable License Agreement with Riverfront Village Hotel, LLC for Riverfront Lane Right-of-Way improvements.” Thank you, Matt ATTACHMENTS: Exhibit A – Revocable License Agreement between Town of Avon and Riverfront Village Hotel, LLC Exhibit B – (Graphic) Exhibit A to Revocable License Agreement AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND RIVERFRONT VILLAGE HOTEL, LLC FOR THE GRANT OF A REVOCABLE LICENSE TO INSTALL, CONSTRUCT, AND MAINTAIN HOTEL SKIER SHUTTLE AND LARGE VEHICLE PARKING AND LANDSCAPE IMPROVEMENTS ON TOWN-OWNED RIGHT-OF-WAY and PROPERTY. 1.0 PARTIES. The parties to this agreement (“Agreement”) are the TOWN OF AVON, COLORADO, a Colorado home rule municipality (the “Town”) and RIVERFRONT VILLAGE HOTEL, LLC, a Delaware limited liability company (the “Licensee”). This Agreement is effective upon execution by the Licensee and following execution by the Town Manager on the date indicated below. 2.0 RECITALS AND PURPOSE. 2.1. The Town is the owner of certain property located in the Town of Avon, Eagle County, Colorado, commonly known as “Riverfront Lane” as depicted on the Final Plat, Riverfront Subdivision, recorded June 15, 2006, at Reception No. 200615950, Eagle County, Colorado (“Town Property”). 2.2. The Licensee intends to construct certain parking improvements on the Town Property for the purpose of parking and landscape improvements in the area depicted on Exhibit A attached hereto. 2.3. The Town acknowledges that the parking improvements enhance roadway efficiency and safety, which is a valuable public benefit and promote goals of the Town’s Comprehensive Plan. Town further finds that the landscaping enhancements to the Town Property provide benefits and value which equal or exceed the value of the Town Property that the Town is providing for use by Licensee for parking use. 2.4. Licensee agrees to install landscaping improvements in the Town Property as depicted in Exhibit A. 2.5. The Town is willing to grant the revocable license to the Licensee under the terms and conditions as hereinafter specified in this Agreement provided that nothing in this agreement shall waive or modify any obligation to seek building permits, variances, or other approval necessary to meet any obligation imposed by law. The Licensee remains obligated to apply for and obtain all necessary permits and approvals, pay all required fees, and comply with all applicable local laws, including but not limited to any applicable provisions in the Avon Municipal Code. 3.0 TERMS AND CONDITIONS. 3.1. The Town hereby grants to the Licensee of a revocable license for the construction, use, repair, maintenance and improvement described as follows: skier shuttle parking area and large vehicle parking area and landscape plantings (trees, shrubs, and ground cover) (“Public Improvements”), as such Pulic Improvements are depicted in Exhibit A attached hereto; provided, however, that nothing in this Agreement is intended to waive, alter, modify, or permit any violation of any local law applicable within the Town of Avon. To the extent that the location or other specifications of this License or any exhibit conflicts with local laws, the Exhibit A local law shall govern. Except for the Public Improvements, no other encroachment, structure, improvement, vehicle, fence, wall, landscaping, or any other real or personal property shall be erected, installed, constructed, parked, stored, kept, or maintained in any way or fashion on the Town Property, including but not limited to storage sheds, carports, playground equipment, motor vehicles, snowmobiles or other recreational equipment. 3.2. The Public Improvements shall continue from the date of this Agreement to the time that this Agreement is terminated. Due to the significant investment by the Licensee, the Town intends that the initial period of this license will run for a minimum of five years from the date this License Agreement is executed and, following such initial five year period, this license shall automatically renew and extend for successive five year periods until terminated as provided in this Section. Notwithstanding the foregoing, the Town may terminate this Agreement at any time if the Town Council, following a duly noticed public hearing, makes a legislative determination that removal of the Public Improvements is necessary to protect the public health, safety, or welfare of the Avon community. At such time as the Town Council makes a determination that removal of the Public Improvements is necessary, the Town Council shall also make a legislative determination regarding the reasonable period of time within which the Public Improvements must be removed. Except in the case of a public safety emergency or where a shorter period of time is justified due to the nature of the Public Improvements, the Licensee shall customarily not be required to remove the Public Improvements within less than thirty (30) days of notice to the Licensee. The Town may also terminate this Agreement at any time in the case of a declaration by the Town Council for the Town of Avon that a public safety emergency exists by giving written notice to the Licensee five (5) days in advance of the effective date of termination. 3.3. The Licensee expressly agrees to, and shall, indemnify and hold harmless the Town and any of its officers, agents, or employees from any and all claims, damages, liability, or court awards, including costs and attorney’s fees that are or may be awarded as a result of any loss, injury or damage sustained or claimed to have been sustained by anyone, including but not limited to, any person, firm, partnership, or corporation, in connection with or arising out of any omission or act of commission by the Licensee or any of its employees, agents, partners, or lessees, in encroaching upon the Town Property. In particular and without limiting the scope of the foregoing agreement to indemnify and hold harmless, the Licensee shall indemnify the Town for all claims, damages, liability, or court awards, including costs and attorney’s fees that are or may be awarded as a result of any loss, injury or damage sustained or claimed to have been sustained by anyone, including but not limited to, any person, firm, partnership, or corporation, in connection with or arising out of any claim in whole or in part that all or any portion of the Public Improvements permitted by this Agreement constitutes a dangerous and/or unsafe condition within a public right-of-way. 3.4. The Licensee agrees that it will never institute any action or suit at law or in equity against the Town or any of its officers or employees, nor institute, prosecute, or in any way aid in the institution or prosecution of any claim, demand, or compensation for or on account of any damages, loss, or injury either to person or property, or both, known or unknown, past, present or future, arising as a result of or from the revocable license granted to the Licensee by this Agreement. This provision Exhibit A includes but is not limited to claims relating to road maintenance, snow removal or other public works activities performed by or on behalf of the Town. 3.5. The Licensee agrees to construct, maintain, and repair the Public Improvements placed or located on the Town Property by the Licensee or its lessees, agents, employees, or other persons under the control or direction of the Licensee pursuant to this Agreement at the cost and expense of the Licensee and at no cost or expense to the Town. The Licensee agrees to remove or cover graffiti or other damage caused to the improvement(s) within a reasonable time following notice or knowledge of such damage or within forty-eight (48) hours of delivery to the Licensee of a written demand by the Town, whichever is earlier. The Licensee shall not erect, cause to be erected or permit the erection of any sign, advertising object, or illustration upon any improvement, structure, fence, or wall placed or located within the Town Property pursuant to this Agreement and shall promptly remove any such sign or advertising. 3.6. The Licensee agrees to maintain the landscaping in a healthy condition at all times and shall be responsible for ensuring the proper pruning or replacement as necessary to present a healthy landscape condition. 3.7. The Licensee agrees that the Town is not liable, and will not assume any liability, responsibility, or costs for any damage, maintenance, or repair of any Public Improvements erected or maintained by the Licensee under this Agreement. 3.8. The Licensee agrees to repair and reconstruct any damage to the Town Property upon termination of this Agreement or removal of the Public Improvements described in paragraph 3.1 and any other improvements erected by the Licensee on the Town Property and the Licensee shall return the Town Property to its original condition at the cost and expense of the Licensee and at no cost or expense to the Town. In the event that Licensee does not remove the Public Improvements and repair and restore Town Property to the condition prior to this Agreement within the time period determined in ¶ 3.2 above, then Licensee shall be deemed to have abandoned the Public Improvements and any rights thereto and the Town may proceed to remove the Public Improvements. The Town may seek recovery of all costs incurred for the removal of Public Improvements from Town Property, repair of damages to Town Property, and restoration of Town Property, including legal costs and attorney fees. 3.9. The Licensee agrees to procure and maintain, at its own cost, a policy or policies of insurance protecting against injury, damage or loss occurring on the licensed premises in the minimum amount of $600,000.00 per occurrence. Such policy or policies shall name the Town as an “additional insured”. However, the Licensee’s failure to take such steps to insure the premises shall not waive, affect, or impair any obligation of the Licensee to indemnify or hold the Town harmless in accordance with this Agreement. 4.0 ASSIGNMENT. This Agreement shall not be assigned by the Licensee without the prior written consent of the Town which may withhold its consent for any reason; provided that the Town encourages the Licensee to inform any purchaser of the Licensee’s property or interests of the existence of this Agreement and the Town will promptly consider any request by the Licensee for assignment of this Agreement to such subsequent purchaser. Exhibit A 5.0 NOTICES. Any notice required or permitted by this Agreement shall be in writing and shall be deemed to have been sufficiently given for all purposes if personally served or if sent by certified mail or registered mail, postage and fees prepaid, addressed to the party to whom such notice is to be given at the address set forth on the signature page below, or at such other address as has been previously furnished in writing, to the other party or parties. Such notice shall be deemed to have been given when deposited in the United States Mail. 6.0 INTEGRATION AND AMENDMENT. This Agreement represents the entire agreement between the parties and there are no oral or collateral agreements or understandings. This Agreement may be amended only by an instrument in writing signed by the parties. If any other provision of this Agreement is held invalid or unenforceable, no other provision shall be affected by such holding, and all of the remaining provisions of this Agreement shall continue in full force and effect. Invalidation of the Agreement in its entirety shall revoke any authorization, whether explicit or implied to the continuing use and occupancy of the Town Property for the Public Improvements. 7.0 GOVERNING LAW AND VENUE. This Agreement shall be governed by the laws of the State of Colorado and venue for any action arising under this agreement shall be in the appropriate court for Eagle County, Colorado. 8.0 WAIVER OF BREACH. A waiver by any party to this Agreement of the breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either party. 9.0 BINDING EFFECT. This Agreement shall inure to the benefit of, and be binding upon, the parties, their respective legal representatives, successors, heirs, and assigns; provided, however, that nothing in this paragraph shall be construed to permit the assignment of this Agreement except as otherwise expressly authorized herein. 10.0 UNDERLYING INTENT AND SCOPE. It is the intent of this Agreement that the Town shall incur no cost or expense attributable to or arising from the construction, maintenance, or operation of the Public Improvements permitted by this Agreement and that, in all instances, the risk of loss, liability, obligation, damages, and claims associated with the Public Improvements shall be borne by the Licensee. This Agreement does not confer upon the Licensee any other right, permit, license, approval, or consent other than that expressly provided for herein and this Agreement shall not be construed to waive, modify, amend, or alter the application of any other federal, state, or local laws, including laws governing zoning, land use, property maintenance, or nuisance. 11.0 AUTHORITY TO BIND PARTY. The undersigned persons represent that they are expressly authorized to execute this Agreement on behalf of the Parties and to bind their respective Parties and that the Parties may rely upon such representation of authority. 12.0 LEGAL FEES AND COSTS. In the event the Town seeks legal action to enforce this Agreement or to recover reimbursement costs for removal of Public Improvements from, repair of any damages, and/or restoration of Town property subject to this Agreement, Town shall be entitled to recover any and all legal costs and attorney’s fees incurred. [SIGNATURE PAGE FOLLOWS] Exhibit A DATED THIS ______ DAY OF _____________, 2021. TOWN OF AVON: By: ________________________________ Eric J. Heil, Town Manger ATTEST: Approved as to Form: _________________________________ ______________________________ Deputy Town Clerk Town Attorney LICENSEE: RIVERFRONT VILLAGE HOTEL, LLC, a Delaware limited liability company By: _________________________________ Address: STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this ________ day of _______________, 2021, by ___________________ as ___________________of RIVERFRONT VILLAGE HOTEL, LLC, a Delaware limited liability company. ___________________________________ Notary Public (SEAL) Commission expires: _____________ Exhibit A Zehren and Associates, Inc. June 2, 2021 RIVERFRONT LANE - Parking Improvements1 Overall Illustrative Plan One Riverfront Riv e r f r o n t L a n e Gondola Plaza Drop-off Rail r o a d T r a c k s Avon Road Eagle River E c o - T r a i l Ri v e r f r o n t L a n e Hotel Large Vehicle Parking Area Skier Shuttle Parking Area Westin Mountain Villas Westin Hotel Loading Dock North Not to Scale Zehren and Associates, Inc. June 2, 2021 RIVERFRONT LANE - Parking Improvements2 North Not to Scale Skier Shuttle Parking Area Zehren and Associates, Inc. June 2, 2021 RIVERFRONT LANE - Parking Improvements3 Loading Dock Parking Area North Not to Scale AVON REGULAR MEETING MINUTES TUESDAY JUNE 8, 2021 SETUP AS A HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM 1. CALL TO ORDER AND ROLL CALL Video Start Time: 00:02:07 The meeting was hosted in a Hybrid format, in person at Avon Town Hall and using Zoom.us. Mayor Smith Hymes called the Liquor Authority meeting to order at 5:01 p.m. and the Council regular meeting to order at 5:15 p.m. A roll call was taken, and Council members present in person were Lindsay Hardy, Scott Prince, Tamra Underwood, Amy Phillips, Chico Thuon, and RJ Andrade. Also present were Public Works Director Gary Padilla, Mobility Director Eva Wilson, Chief of Police Greg Daily, Town Manager Eric Heil, Town Attorney Paul Wisor, General Government Manager Ineke de Jong, and Town Clerk Brenda Torres. 2. APPROVAL OF AGENDA Video Start Time: 00:14:33 Mayor Pro Tem Phillips moved to approve the agenda as presented. Councilor Thuon seconded the motion and the motion passed unanimously. 3. DISCLOSURE OF ANY CONFLICTS OF INTEREST RELATED TO AGENDA ITEMS Video Start Time: 00:14:53 Town Attorney Paul Wisor recused from agenda item 5.3 Forest Service Road 779 discussion, as his parents live adjacent to this road and have participated on this topic. 4. PUBLIC COMMENT Video Start Time: 00:15:35 Mayor Smith Hymes explained to the public that comments in person will be taken first, then those via Zoom. No public comments were made. 5. BUSINESS ITEMS 5.1. AVON PD SWEARING IN AND BADGE PINNING OF OFFICER LOPEZ, OFFICER VILLEGAS, DETECTIVE HERNANDEZ AND SERGEANT HERRERA (POLICE CHIEF GREG DALY) Video Start Time: 00:16:16 Mayor Smith Hymes mentioned that this is a first for the Avon Police Department to swear in four Latinx police department officers at the same time and presided over tonight's swearing in and badge pinning of Officer Lopez, Officer Villegas, Detective Hernandez and Sergeant Herrera. The Oath of Office was administered by Town Clerk Brenda Torres. Their families were present to pin their badges. 5.2. AVON PD AWARDS PRESENTATION (POLICE CHIEF GREG DALY) Video Start Time: 00:26:16 Chief Greg Daly presented the awards as outlined in the packet: Lifesaving Medal – Awarded to members directly responsible for saving/prolonging a human life (extended by days or weeks): Master Police Officer Mike Lundblade and Officer Al Zepeda . Medal of Merit – Recognition of outstanding leadership during a major incident or over a period of time: Deputy Chief of Police Coby Cosper. AVON REGULAR MEETING MINUTES TUESDAY JUNE 8, 2021 SETUP AS A HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM Department Teamwork Citation – For a group of employees that came together as a team and achieved exceptional results relating to a specific incident or event: Sergeant Matt Jamison, Detective Sergeant Jon Lovins, Sergeant Bal Herrera, Officer Al Zepeda, Officer Corey Baldwin, Deputy Chief Co by Cosper and Chief Greg Daly . Certificate of Appreciation – An award presented to a citizen or employee that should be recognized for their service. First to Gary Padilla, Drew Isaacson, Kevin Fontana, Steve Maestas, Paul Lampe, Joe Gilles, Steven Huesto n, Arnulfo Galvez, Jessie Sipkovsky, Hugo Castillo, Martin Reza, Nathan Anderson, Moises Medina, Timothy Milligan, Angelo Rivera, and Trevor Dinkel. Second to Craig Wilmers, Lancer Cooke, Vern Velasquez, Dillon McClure, John McDade, Michael Keenan, Nevada Wilde, Samuel Farnen and Kate Franklin. Third to the men and women of the Avon Mobility Department, led by Eva Wilson, Jim Shoun and Simon Williams. 5.5. FIRST READING OF ORDINANCE 21-08 MODEL TRAFFIC CODE (TOWN PROSECUTOR ELIZABETH PIERCE- DURANCE ) Video Start Time: 00:40:20 As Council was a little ahead of schedule, Council decided to skip agenda items 5.3 and 5.4 and discuss 5.5 first. Town Prosecutor Elizabeth Pierce -Durance introduced the Ordinance and explained that the Town needs to update its Ordinance to reflect the changes by the Department of Transportation . She mentioned that the m ain change is on the penalty section and that the Penalty Assessment still has a 2-point auto-reduction if the fine is paid within 20 days of the summons issuance date. Mayor Smith Hymes asked for public comments and no public comments were made. Councilor Underwood moved to approve First Reading of Ordinance 21 -08 Adopting the 2020 Model Traffic Code by Reference for Use Within the Town of Avon with the changes proposed . Mayor Pro Tem Phillips seconded the motion and the motion passed unanimously. 5.3. WORK SESSION: FOREST SERVICE ROAD 779 (PLANNING DIRECTOR MATT PIELSTICKER) Video Start Time: 00:49:49 Town Attorney Paul Wisor was recused and left the meeting at 5:52 p.m. Planning Director Matt Pielsticker virtually joined the meeting and introduced the topic. Leanne Veldhuis, the new district ranger with the US Forest Service , joined the meeting in person in the Council Chambers to answer Council questions. She confirmed that it is not unusual for local jurisdictions/governments to participate financially and sign an agreement with the USFS to keep these roads open. Mayor Smith Hymes asked for public comments and there were several public comments: Devon DeCrausaz, present as a Wildridge homeowner, mentioned that she is the founder and president of the Wildridge Trail Coalition, and expressed that she is present to of fer help and thank Council for spending time on this topic. Rick Smith , present as a Wildridge homeowner , expressed how recreation on these roads create vibrancy and energy for the community and is happy to assist clearing trees. AVON REGULAR MEETING MINUTES TUESDAY JUNE 8, 2021 SETUP AS A HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM Charley Viola, present as a Wildridge homeowner , complimented Council for taking this on and expressed that there would only be two areas need ing attention to get this road in good shape. Spencer Ball, virtually present as a Wildridge homeowner and representing the Rocky Mountain Sport Riders ’ Group, thanked Council for listening to the dialogue and listening to all the opinions and looks forward t o working with Leanne . He asked Council to please help get the District ’s attention on motorized use. David Dantas , virtually present as a member of the public , expressed how he previously served on the Avon Town Council and commented that the Town appealed past closures. He commented on what is happening with trail closures around us. Charlie Sherwood, virtually present as a Wildridge Resident , expressed that he has seen the dust getting bigger and keeping more access is better than reducing access to spread use across many roads. He said use of the trails is one of the reasons to live in Wildridge. Town Manager Eric Heil explained that staff is working with t he USFS to preserve the status quo and work on a simple MOU to agree to work together and explore cost sharing arrangements for the road maintenance. He said that this maintenance will be to control the challenging sections that have some erosion with some light maintenance and that the Town is not working on parking arrangements on Wildridge Road. Councilor Underwood wanted to inform the public to look into the "SHRED" Act to support the ski area retention bill and to send letters of support to keep a port ion of the ski area fees in the area. Town Attorney Paul Wisor rejoined at 6:52 p.m. 5.4. WORK SESSION: EMERGENCY SIREN WILDRIDGE (TOWN MANAGER ERIC HEIL) Video Start Time: 01:45:48 Town Manager Eric Heil introduced the topic and expressed how he takes responsibility for not including this in the 2020 CIP plan or staff report and not having a public process. He explained how the idea for the siren came up after the 2019 Wildridge evacuation drill where it took too long to notify all the residents and where the Town learned that Bachelor Gulch has a siren for this reason. Town Engineer Justin Hildreth was present to answer Council questions about the position. Council asked if staff could look into camouflaging the white generator and to study other locations that are cheaper to run power to and that are less obstructive to the neighborhood. Council also asked if the acoustics could be reevaluated and if more money could be spent on more sirens where we already have electrical infrastructure instead of having just this one and spending the $40K on the electrical service to that location. Chief Greg Daly was also present to answer Council questions on the use of this siren. Mayor Smith Hymes asked for public comments and there were several public comments: Charley Viola, present as a Wildridge homeowner, expressed that for the Water District antenna, there was a public process. He mentioned how it was flawed, but it was still a process and there was a compromise reached at the end of it. He said for this siren, there was no process and there should have been, and the lack of process is what got us here. He suggested that a series of lower profile sirens may be the right direction to go and asked Council to please study alternatives and take it through a public process. AVON REGULAR MEETING MINUTES TUESDAY JUNE 8, 2021 SETUP AS A HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM Devon DeCrausaz, present as a Wildridge resident, mentioned that she lives 8 houses down from Charley Viola and expressed that she did not hear the siren and would much prefer to use technology that is already out there instead of spending money on this siren and power source. Debbie Lathram, virtually present as a Wildridge resident, said she lives next door to Charley Viola. She said she hopes the Town can go through a process for this and if it turns out that a tower is really needed, then the Town needs to shield it and make it more aesthetically attractive. She expressed how it sounded like a low vacuum in her house and was very hard to hear and questions if this is the best solution. Mayor Smith Hymes wanted to express that she is on the Water Authority Board and predictions on wildfires this summer will be dire and evacuation through Wildridge is a major concern. Deputy Chief Cosper joined to answer Council questions. Councilor Andrade suggested to keep in place what the Town has for now and to work on a remedy and a public process which will take time. Councilor Thuon asked when and how the public process will take place. Councilors Hardy and Prince said this should go to the Planning and Zoning Commission first. Town Manager Eric Heil said staff can send this to Community Development Department as a new application and take it from the start. Chief Daly said this needs to be tested again as it was only tested once. 5.6. EXTENSION REQUEST FOR A DEVELOPMENT PLAN APPROVALS – LOT B HOTEL / 130 W. BEAVER CREEK BOULEVARD (PLANNING D IRECTOR MATT P IELSTICKER ) Video Start Time: 02:47:19 Planning Director Matt Pielsticker joined virtually together with Josh Brewton and Peter Evers and they answered Council questions. Planning Director Matt Pielsticker said the recommended motion in the packet should read December 15 th and September 15 th. Mayor Smith Hymes asked for public comments and no public comments were made. Councilor Underwood moved to approve the six (6) month extension to the Development Approvals for the Avon Hotel on Lot B, Avon Center at Beaver Creek Subdivision, now set to expire December 15, 2021, with direction to address and incorporate Inclusionary Zoning, Landscaping, Electric Vehicle Charging, and Solar Ready code provisions. Mayor Pro Tem Phillips seconded th e motion and the motion passed unanimously. 5.7. RESOLUTION 21-14 ADOPTING THE UPDATED CLIMATE ACTION PLAN (TOWN ATTORNEY PAUL WISOR) Video Start Time: 02:56:28 Town Attorney Paul Wisor explained how Council heard a full presentation on the updated CAP from Kim Schlaepfer at the last meeting and how this Resolution incorporates those updates into the current plan. Mayor Smith Hymes asked for public comments and no public comments were made. AVON REGULAR MEETING MINUTES TUESDAY JUNE 8, 2021 SETUP AS A HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM Councilor Thuon moved to approve Resolution 21-14 Adopting the Updated Climate Action Plan 2020. Mayor Pro Tem Phillips seconded th e motion and the motion passed unanimously. 5.8. RESOLUTION 21-15 AMENDING AND RE-ADOPTING THE SIMPLIFIED RULES OF ORDER FOR AVON TOWN COUNCIL MEETINGS TO REFLECT REMOTE ATTENDANCE POLICY (TOWN ATTORNEY PAUL WISOR AND TOWN MANAGER ERIC HEIL) Video Start Time: 02:58:55 Town Manager Eric Heil started by thanking Robert McKenner and JK and Arjun with High Five Media for making this hybrid meeting platform possible. He expressed how this took a lot of work, energy and time and that it is working great. He and Town Attorney Paul Wisor then explained how the pandemic has changed remote participation standards. He said it is up to Council to decide on the guidelines for regular meetings, quasi-judicial hearings, and executive sessions. After Council discussion, Town Attorney Paul Wisor suggested to bring back a range of approaches with respect to absences and how those are addressed for Council to adopt by resolution at the next meeting, if appropriate. In addition, he will bring back a draft of an Ordinance addressing attendance generally and Council can also consider that at first reading at the next meeting. Council agreed with that recommendation. Councilor Underwood made some suggestions regarding the proposed rules. Councilor Thuon moved to continue Resolution 21-15 Amending and Re-Adopting the Simplified Rules of Order for Avon Town Council Meetings to Reflect Remote Attendance Police to the June 22nd meeting. Councilor Underwood seconded the motion and the motion passed unanimously. 6. MINUTES 6.1. APPROVAL OF MAY 6, 2021 SPECIAL COUNCIL MEETING MINUTES (TOWN ATTORNEY PAUL WISOR) Video Start Time: 03:34:14 Councilor Underwood requested to update the numbering of the headers. Councilor Underwood moved to approve the minutes from the May 6th Special meeting with those two changes. Mayor Pro Tem Phillips seconded the motion and the motion passed unanimously. 6.2. APPROVAL OF MAY 25, 2021 REGULAR COUNCIL MEETING MINUTES (TOWN CLERK BRENDA TORRES) Video Start Time: 03:35:16 Councilor Prince asked to please double check the spelling of Kim Schlaepfer's last name. Councilor Thuon moved to approve the minutes from the May 25th Regular meeting as presented. Mayor Pro Tem Phillips seconded the motion and the motion passed with a vote of 6 to 0. Councilor Andrade abstained from the vote as he was not present for the May 25th meeting. 6.3. APPROVAL OF JUNE 2, 2021 SPECIAL COUNCIL MEETING MINUTES (GENERAL GOVERNMENT MANAGER INEKE DE JONG) Video Start Time: 03:35:53 Councilor Thuon moved to approve the minutes from the June 2nd Special meeting as presented. Mayor Pro Tem Phillips seconded the motion and the motion passed unanimously. AVON REGULAR MEETING MINUTES TUESDAY JUNE 8, 2021 SETUP AS A HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM 7. WRITTEN REPORTS 7.1. June 1st Planning and Zoning Commission Meeting Abstract (Planner David McWilliams) 7.2. May 20th CASE Committee Draft Meeting Minutes (General Government Intern Emily Myler) 8. MAYOR AND COUNCIL COMMENTS & MEETING UPDATES Video Start Time: 03:36:41 Mayor Pro Tem Phillips provided some updates from the EGE Air alliance and said that almost all thousand $100 rebates have been used up. The alliance has received proposals for additional airlines next winter and are 80% confirmed on a grant opportunity. She said that the airport is recovering better than other airports. Secondly, she reported that she attended the VVP success awards at the Eagle-Vail Pavilion, which was wonderful. She mentioned how Heath Harmon was given the top award and a lot of awards went to Eagle County Health & Vail Health. Councilor Andrade commented that he likes the No Parking signs on West Beaver Creek Boulevard but would like to see a sign to show people where they can park. Councilor Hardy asked to disperse signs about sharrows (shared lane markings). Councilor Thuon commented about pet's waste, saying there is no "poop-fairy". Secondly, he asked everyone to practice kindness. Thirdly, he encouraged as many people as possible to get vaccinated. Councilor Underwood expressed that she attended the NWCCOG meeting. She said she was very happy to see that Leanne Veldhuis attended tonight's meeting. She said that Eric has proposed to write a letter of support for the "SHRED" act for Council to discuss and sign off on. The letter will support keeping federal ski area fees in the local forest area. Councilor Prince expressed how he likes receiving the PZC Abstracts in the Council packets and he requested that moving forward there be hyperlinks to the items discussed. He also requested to schedule an executive session to discuss security protocols with new Council members. Councilor Hardy commented that some residents indicated they want to bike to work but need a place to shower and asked if there is something better than a $14 fee to shower at the rec center. She then asked what is going on at the white-water park. Town Manager Eric Heil explained that the Town had to perform repairs and modifications and that these safety modifications make it 'unspectacular' at lower water levels. Councilor Hardy then said that California recently passed a law for new homes to be solar or EV ready and said that perhaps Council can look into that for Avon. she ended with saying that she is excited to see the pride flag up on roundabout 4, and is also proud of all Avon Council members being open minded. Mayor Pro Tem Phillips reminded the public of the Art Walk exposition located at a total of 9 places around Town, that will be coming on June 11th at 6:00 p.m. AVON REGULAR MEETING MINUTES TUESDAY JUNE 8, 2021 SETUP AS A HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM Mayor Smith Hymes said that she will recap the legislative work of the CC4CA board retreat meeting soon, once it is wrapped up. She said that the plastic bill (Colorado HB21-1162) passed today which includes a repeal of the prohibition on local control in 2024. She explained how staff did a great job at the May 26th business meeting at the Westin. It was not well attended but it was a good meeting. She then expressed the dire water situation and that Avon has to embrace its environment and a new way to landscape. She said lawns and annual flowers are not sustainable in this area, that water outside for irrigation is lost and does not flow back to the system, and that Avon has to really be conservative with water. 9. ADJOURN There being no further business before Council, Mayor Smith Hymes moved to adjourn the regular meeting. The time was 9:01 p.m. These minutes are only a summary of the proceedings of the meeting. They are not intended to be comprehensive or to include each statement, person speaking or to portray with complete accuracy. The most accurate records of the meeting are the audio of the meeting, which is housed in the Town Clerk' s office, and the video of the meeting, which is available at www.highfivemedia.org. RESPECTFULLY SUBMITTED: Brenda Torres, Town Clerk APPROVED: Sarah Smith Hymes ___________________________________ Amy Phillips Chico Thuon Scott Prince Tamra Underwood Lindsay Hardy RJ Andrade 970-748-4019 jmccracken@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Joel McCracken, Senior Accountant RE: Financial Report April and May 2021 Revenues DATE: June 17th, 2021 SUMMARY: The content of this report will reflect the revenues for sales, accommodations, tobacco and cigarette tax for the period of April 2021. Further, revenues for real estate transfer tax and recreation admissions & program fees for the period of May 2021 will be reported upon. This is submitted as a written report and no action by Council is being requested. BACKGROUND: The Town’s 2021 budget was adopted in December 2020. The percentage variance, or comparative change is reflected in the analysis portion of this report in respect to each individual section for the periods of April and May revenues in 2021. Tax revenues are not budgeted on a monthly basis. However, for purposes of analysis, monthly budget variances are based on a 5-year average of actual revenues. ANALYSIS: Sales Tax Revenues – April 2021 April 2021: April sales tax revenues totaled $591,350. This is an increase of $242,161 or 69.42% compared to April 2020 sales tax revenue of $349,051. APRIL 2020 v APRIL 2021 SALES TAX COMPARISON BY INDUSTRY April 2020 April 2021 Increase/Decrease Home/Garden $49,108.90 $85,218.80 $36,109.90 Grocery/Specialty/Health $129,486.41 $147,040.08 $17,553.67 Sporting Goods Retail/Rental $13,664.06 $43,904.91 $30,240.85 Miscellaneous Retail $8,150.26 $23,073.02 $14,922.76 Accommodations $6,966.81 $70,557.66 $63,590.85 Restaurants/Bars $30,312.49 $101,060.06 $70,747.57 Other $2,528.02 $7,761.64 $5,233.62 Service Related $13,288.26 $19,989.76 $6,701.50 Liquor Stores $17,470.27 $19,295.49 $1,825.22 E-Commerce Retail $8,672.89 $31,245.11 $22,572.22 Manufacturing/Wholesale $5,997.42 $6,499.80 $502.38 Construction Related Services $58,290.94 $28,011.96 ($30,278.98) Digital Media Suppliers/Sellers $4,773.17 $7,043.71 $2,270.54 Page 2 of 7 Commercial/Industrial Equipment $452.42 $648.43 $196.01 Special Events $27.20 $0.00 ($27.20) TOTAL $349,189.52 $591,350.43 $242,160.91 April 2021 Proposed Budget v Actual Collections: April 2021 sales tax revenues totaled $591,350. This is an increase of $158,428 over the proposed April 2021 estimates of $432,922. This is 36.63% over the 2021 proposed budget, which is calculated based on a 5-year average. APRIL 2020 v APRIL 2021 PROPOSED BUDGET v ACTUAL COLLECTIONS - SALES TAX 2021 Budget 2021 Actual Dollar Variance Percentage Variance Sales Tax $432,821.93 $591,350.43 $158,428.50 36.63% 425,727.85 394,986.15 424,685.32 349,051.52 591,350.43 -7.22% 7.52% -17.81% 69.42% $0 $100,000 $200,000 $300,000 $400,000 $500,000 $600,000 2017 2018 2019 2020 2021 2017 -2021 April Sales Tax Revenue Trend Page 3 of 7 Accommodation Tax Revenues – April 2021 April 2021: Accommodation tax revenues totaled $73,465 for the month of April. This is an increase of $64,834 or 751.18% compared to April 2020 accommodation tax revenues, which totaled $8,631. Accommodation tax collections by industry type for April 2021 compared to April 2020 reported a decrease for Vacation Rentals, Time Shares and Hotels. APRIL 2020 v APRIL 2021 ACCOMMODATION TAX COMPARISON BY INDUSTRY April 2020 April 2021 Increase/(Decrease) Timeshares $1,138 $18,867.24 $17,729.24 Hotels $3,619.15 $20,096.17 $16,477.02 Vacation Rentals $3,873.81 $34,501.25 $30,627.44 TOTAL $8,630.96 $73,464.66 $64,833.70 April 2021 Proposed Budget v Actual Collections: April 2021 accommodation tax revenues totaled $73,465. This is an increase of $41,843 over the proposed April 2021 estimates of $31,622. This is 132.32% over the 2021 proposed budget. 2021 PROPOSED BUDGET v ACTUAL COLLECTIONS - ACCOMMODATIONS TAX 2021 Budget 2021 Actual Dollar Variance Percentage Variance Acc. Tax $31,622.14 $73,464.66 $41,842.52 $132.32 Page 4 of 7 Tobacco & Cigarette Tax Revenues – April 2021 April 2021: Tobacco tax revenues totaled $19,194 and cigarette tax revenues totaled $18,798 for April 2021. Compared to April 2020 revenues, this is an increase of $7,037 for tobacco tax revenues, which totaled $12,157 and an increase of $2,610 for cigarette tax revenues, which totaled $16,188. 38,340 33,275 31,825 8,631 73,465 -13.21%-4.36% -72.88% 751.18% $0 $10,000 $20,000 $30,000 $40,000 $50,000 $60,000 $70,000 $80,000 2017 2018 2019 2020 2021 2017-2021 April Accommodation Tax Revenue Trend 18,392 16,188 18,798 -11.98% 16.12% 14,500 15,000 15,500 16,000 16,500 17,000 17,500 18,000 18,500 19,000 2019 2020 2021 2019-2021 April Cigarette Excise Tax Revenue Trend Page 5 of 7 April 2021 Proposed Budget v Actual Collections: April 2021 tobacco and cigarette tax revenues totaled $19,194 and $18,798, respectively. This is an increase of $2,029 over the proposed April 2021 budget for tobacco tax and a decrease of $463 over for the proposed April 2021 budget for cigarette tax estimates, which is based on a 5-year average. 2021 PROPOSED BUDGET v ACTUAL COLLECTIONS - TOBACCO AND CIGARETTE TAX REVENUES 2021 Budget 2021 Actual Dollar Variance Percentage Variance Tobacco $17,165.34 $19,194.34 $2,029 11.82% Cigarettes 19,261.44 $18,798 ($463.44) -2.41% $1,565.56 NOTE: We believe the adoption of similar tobacco and cigarette taxes in neighboring jurisdiction resulted of purchasers to Avon. Real Estate Transfer Tax Revenues – May 2021 May 2021 May 2021 Real estate transfer tax totaled $304,523. Compared to May 2020, which totaled $100,256, this is an increase of $204,267. 15,416 12,340 19,194 -19.95% 55.54% - 5,000 10,000 15,000 20,000 25,000 2019 2020 2021 2019-2021 April Tobacco Tax Revenue Trend Page 6 of 7 Recreation Center Revenues – May 2021 Admissions & Program Fees May 2021: Recreation admission revenues for May 2021 totaled $27,693, an increase of $26,979 compared to May 2020, which totaled $714. This is $2,241 under the original 2021 budget estimates of $29,220. Recreation program fee revenues for May 2021 totaled $24,791. This is an increase of $17,042 compared to 2020, which totaled $7,749. This is $5,825 under the original 2021 budget estimates, which is $30,616 which is calculated based on a 5-year average. $377,491 $351,237 $278,242 $100,257 $304,523 -7.47% -26.23% -177.53% 67.08% $0 $50,000 $100,000 $150,000 $200,000 $250,000 $300,000 $350,000 $400,000 2017 2018 2019 2020 2021 Real Estate Transfer Tax May Revenue Trends 54,337 50,253 63,563 714 27,693 -8.13%20.94% -8808.62% 97.42% - 10,000 20,000 30,000 40,000 50,000 60,000 70,000 2017 2018 2019 2020 2021 Recreation Admissions May Revenue Trends Page 7 of 7 FINANCIAL CONSIDERATIONS: This is submitted as a written report and there are no financial considerations for Council. RECOMMENDATION: This is submitted as a written report; therefore, I have no recommendations for Council. Thank you, Joel McCracken $44,605 $37,300 $31,336 $7,749 $24,791 -16.38% -15.99% -75.27% 219.94% $0 $5,000 $10,000 $15,000 $20,000 $25,000 $30,000 $35,000 $40,000 $45,000 $50,000 2017 2018 2019 2020 2021 Recreation Program Fees May Revenue Trends AVON PLANNING AND ZONING COMMISSION MEETING ABSTRACT AVON TOWN HALL - 100 MIKAELA WAY, AVON, CO 1. CALL TO ORDER AND ROLL CALL Chairperson Jared Barnes called the meeting to order at 5:03 p.m. A roll call was taken, and Planning Commission members present were Steve Nusbaum, Donna Lang, Trevor MacAllister, Marty Golembiewski, and Anthony Sekinger. Also present were Town Planner David McWilliams, Planning Director Matt Pielsticker, Town Manager Eric Heil, and Town Attorney Paul Wisor. 2. APPROVAL OF AGENDA Action: Commissioner Golembiewski motioned to approve the agenda. Commissioner Lang seconded the motion and it carried unanimously 7-0. 3. DISCLOSURE OF ANY CONFLICTS OF INTEREST RELATED TO AGENDA ITEMS Action: No conflicts were disclosed. 4. BUSINESS ITEMS 4.1. 540 NOTTINGHAM ROAD – LOT 70A, BLOCK 1, BENCHMARK AT BEAVER CREEK SUBDIVISION – CONTINUED PUBLIC HEARING – MAJOR DEVELOPMENT PLAN FOR A NEW DUPLEX BUILDING (TOWN PLANNER DAVID MCWILLIAMS AND ERIK LILLYDAHL ). LINK Public Comment: Angela Dalton commented on the application. Action: Commissioner Golembiewski motioned to approve the conditions of approval for MJR21005 with the following findings and conditions: Findings: 1. The proposed application was reviewed pursuant to §7.16.080(f), Development Plan, §7.16.090(f), Design Review. The design meets the development and design standards established in the Avon Development Code; 2. The application is complete; 3. The application provides sufficient information to allow the PZC to determine that the application complies with the relevant review criteria; 4. The application complies with the goals and policies of the Avon Comprehensive Plan; 5. The demand for public services or infrastructure exceeding current capacity is mitigated by the application; and 6. The design relates the development to the character of the surrounding community. Conditions: 1. An irrigation plan will be approved by staff before a building permit is issued; 2. The northern retaining wall materials will be approved by staff before a building permit is issued; and 3. The applicant will provide evidence of approval from the Bristol Pines HOA for the relocation of trees. Commissioner Lanious seconded the motion and it carried unanimously 7-0. 4.2. 5743 WILDRIDGE ROAD – LOT 85, BLOCK 4, WILDRIDGE SUBDIVISION – CONTINUED PUBLIC HEARING – MAJOR DEVELOPMENT PLAN FOR ADDITION TO A SINGLE -FAMILY RESIDENCE (TOWN PLANNER DAVID MC WILLIAMS AND R ICHARD WHEELOCK). LINK Public Comment: Angela Dalton commented on the application. Action: Commissioner Golembiewski motioned to approve the conditions of approval for MJR21005 with the following findings and condition: Findings: 1. The proposed application was reviewed pursuant to §7.16.080(f), Development Plan, §7.16.090(f), Design Review. The design meets the development and design standards established in the Avon Development Code; 2. The application is complete; 3. The application provides sufficient information to allow the PZC to determine that the application complies with the relevant review criteria; 4. The application complies with the goals and policies of the Avon Comprehensive Plan; 5. The demand for public services or infrastructure exceeding current capacity is mitigated by the application; and 6. The design relates the development to the character of the surrounding community. Condition: 1. The Town Engineer will determine if the retaining wall meets the four (4) foot height requirement, and the Applicant shall modify such corner if deemed over four (4) feet. Commissioner Nusbaum seconded the motion and it carried unanimously 7 -0. 4.3. ONE LAKE STREET - WORK SESSION – REVIEW FOUR (4) CONCEPT SITE PLAN DIAGRAMS FOR THE EAST HARRY A. NOTTINGHAM PARK DESIGN IMPROVEMENTS. INPUT AND RECOMMENDATIONS WILL BE FORWARDED TO TOWN COUNCIL (COMMUNITY DEVELOPMENT DIRECTOR MATT PIELSTICKER). LINK Commissioner Lang left the meeting. Action: Commissioners commented on various design features for the next design iteration. 4.4. WILDRIDGE EMERGENCY SIRENS – W ORK SESSION – WILDRIDGE EMERGENCY SIREN ON TRACT J OR OTHER LOCATIONS WITHIN WILDRIDGE (TOWN MANAGER ERIC HEIL). LINK Action: Commissioners commented on the future design process for siren placement in Wildridge and potentially Mountain Star. 5. CONSENT AGENDA, 1.1.1. APPROVAL OF MINUTES FROM JUNE 1, 2021 PZC MEETING 1.1.2. APPROVAL OF CONDITIONS OF APPROVAL FOR MNR21019 FOR SHUTTLE PARKING ON 126 RIVERFRONT LANE 1.1.3. APPROVAL OF REFERRAL COMMENT LETTER TO VILLAGE (AT AVON) DRB FOR HOTEL ON PLANNING AREA J – E. SWIFT GULCH RD 1.1.4. APPROVAL OF CODE TEXT AMENDMENT RECOMMENDATION TO TOWN COUNCIL FOR CTA21001 Action: Commissioner Nusbaum motioned to approve the consent agenda. Commissioner MacAllister seconded the motion and it carried unanimously 6-0. 6. STAFF UPDATES 6.1. J UNE 29, 2021 PZC MEETING / JULY 6, 2021 PZC CANCELLED 6.2. APA COLORADO CONFERENCE - SEPTEMBER 8-10, KEYSTONE 6.3. VILLAGE (AT AVON) DRB REPRESENTATION 6.4. PZC NAME TAGS 7. ADJOURN The meeting was adjourned at 8:06 pm. These meeting notes are only a summary of the proceedings of the meeting. They are not intended to be comprehensive or to include each statement, person speaking or to portray with complete accuracy. The most accurate records of the meeting are the audio of the meeting, which is housed in the Town Clerk' s office. RESPECTFULLY SUBMITTED: _________________________________ David McWilliams, Town Planner     MEMORANDUM TO: Board of Directors FROM: Beth Doliboa, District Administrator DATE: May 27, 2021 RE: Summary of Authority’s May 27, 2021, virtual Board Meeting The following is a summary of items discussed at the May 27, 2021, Authority Board Meeting: Board members present and acting were Chair George Gregory, Vice-Chair Sarah Smith Hymes, Treasurer Geoff Dreyer, Pam Elsner, Kim Bell Williams, and Mick Woodworth. Introductions Assessing Late Fees New employees Beth Doliboa and Christine Heimerl of the administration department were introduced, and Jim Cannava of the finance department was introduced. The board approved the reinstatement of late fees for past due accounts for customers. Coverage Based Irrigation Rates Termination of Joint Emergency Disaster Declaration The board approved revisions of the Coverage Based Irrigation Rate to accommodate a move from three to five tiers. This will better align irrigation rate tiers to the Authority’s residential water use tiers and promote water efficiency goals for irrigation accounts. The board approved the termination of the emergency disaster declaration, which was in place since March 2020. The declaration was rescinded due to the decline in local and statewide COVID-19 cases. Drought Update Len Wright presented on current drought conditions. Diane Johnson updated on drought mitigation outreach strategies to inform customers of the importance of reducing water use. She also discussed the letter distributed to Tiers 4 and 5 users encouraging more efficient water use. Best Place to Work Award Eagle River Water and Sanitation District received the Vail Valley Partnership’s Best Place to Work Award for 2020. Catherine Hayes discussed the application process, which highlighted employee culture and specifically the efforts of the IT and HR departments, especially during the pandemic. Dowd Junction Collection System Project Update Jeff Schneider, Niko Nemcanin, and Jenna Beairsto updated the board on the Dowd Junction Collection System Projects. Permitting has been a major component of these projects due to the location. The recreation path at the Minturn Interceptor Aerial Crossing will be open to the public August 16. Wolford Mountain Reservoir Dam Safety Len Wright briefly updated on ongoing issues with the Wolford Mountain Reservoir Dam. A comprehensive dam safety evaluation identified elevated levels of risk associated with the dam that will require mitigation. The Authority and District have Summary of Authority’s May 27, 2021, virtual Board Meeting Page 2 of 2 some contract water supplies in Wolford, but other sources are available if the reservoir needs to be lowered for risk mitigation or repairs. Authority Water Rights Report Glenn Porzak reported he will begin work on the Authority’s water rights report, which is updated at least every two years. (970) 748-4049 gdaly@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Greg Daly, Chief of Police RE: Avon Police Department Disposition on Forfeited Properties for 2020 DATE: June 22, 2021 SUMMARY: In accordance with Avon Town Resolution 2000-12, “Section 4. The committee shall, each year, submit a written report to the Town Council concerning forfeited moneys or property received during the year and an accounting of how such monies were expended during the year.” The forfeited monies in the Forfeiture Account can only be used for law enforcement training or equipment expenditures only. These monies accrue from adjudicated criminal cases or through civil forfeiture processes. The opening balance for 2020 was $86.94. There were no expenditures in 2020. The closing balance for 2020 was $86.94. Respectfully Submitted, Greg Daly Chief of Police ### 970 748 4034 rmckenner@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Robert McKenner, IT Manager RE: Guest Wireless Network Security DATE: 06/17/2021 SUMMARY: Town has recently experienced issues with unauthorized activity on the Town’s guest wireless network, including illegal download of movies. The current wireless network system cannot identify and or block the unwanted activity on our public facing wireless system. Town Attorney Paul Wisor has received correspondence demanding the Town not permit illegal download of movies. The report provides an update to Council on intended wireless system upgrades to prevent unauthorized and illegal activity on our public wireless system. BACKGROUND: Avon provides free guest wireless internet access in all the Town’s facilities and in portions of Nottingham Park. This access has been unsecure and unfiltered allowing access to the internet without passwords or restrictions. It is common for municipalities to provide some level of public internet access within its facilities and in public areas. Up to recently not having security on the guest wireless network has not been an issue. However, over the last couple months the Town has receiving several notifications from Comcast that someone is using the guest network to illegally downloading content using BitTorrent. Comcast has notified the Town that if this continues that they will cancel the Town’s internet service. There is also the risk of litigation brought by the owners of the stolen content. Options: The Town has several options that it can take, but only one option that will allow for the Town to continue offer free internet service to our guest and stop possible future litigation. • Leaving the guest network access as is. Obviously, this is not a real solution. • Adding a password to the guest network and providing the password to guest when requested. At the surface, this solution sounds good, but as the password circulates through the community the offender could and will offend again. This solution does not deter future offense. (Staff is exploring the registration and password requirement as a potential good practice for other reasons.) • Discontinue providing free guest wireless internet services. Although this solution stops possible future litigation it would discontinue a public amenity offered by the Town which most towns offer to residents and guests. Access to internet is one of the top amenities that is looked for by guests. • Implement firewall and software solution that is like other resort communities that prevents access to BitTorrent and similar sites. STAFF RECOMMENDS THIS OPTION. FIREWALL SOLUTION: The firewall solution implements intrusion prevention services that will stop unauthorized activity. The solution will be configured so guest will have to login with an email address and accept an internet usage agreement. The solution gives the Town the tools to manage and track access. This solution also prevent access to inappropriate and known bad sites. Town can set time access to reduce piggybacking of internet services. COST: The cost proposal for this solution is $11,370 (see attachment). MANAGER’S COMMENT: This is an important improvement to our public wireless system which other communities have implemented to address similar concerns. Unless Council has questions or objections, we will proceed with implementing this solution and will include the cost in the next proposed budget amendment to be presented to Council in August. Thank you, Robert ATTACHMENT A: PEI Guest Wireless Firewall Proposal Town of Avon Statement of Work Guest Wireless Firewall Implementation Version 1.0 Project number: 21020202 Date: June 16th, 2021 Account Manager: Martin Feehan Technical Certification: Jason Howe, Jacob Eker Presented by: Martin Feehan ATTACHMENT A: Guest Wireless Firewall Proposal Guest Wireless Firewall SOW Version 1.0 6/16/2021 SOW Expires 30 Days From Date of Submittal Page 2 of 9 Copyright 2021, PEI Confidential- Not to be Viewed, Copied, or Distributed Without Written Consent Revision Log Revision Log Date Version Author Description 6/16/2021 1.0 MF/JH/JE Initial Proposal The information in this Statement of Work shall not be disclosed outside Town of Avon and shall not be duplicated, used, or disclosed in whole or in part for any purpose other than to evaluate the products and services to be provided by PEI. ATTACHMENT A: Guest Wireless Firewall Proposal Guest Wireless Firewall SOW Version 1.0 6/16/2021 SOW Expires 30 Days From Date of Submittal Page 3 of 9 Copyright 2021, PEI Confidential- Not to be Viewed, Copied, or Distributed Without Written Consent Executive Summary Town of Avon has experienced issues with unauthorized activity on the town’s guest wireless network. The current solution cannot identify and block the unwanted activity, so town leadership would like to implement a new firewall dedicated to protecting the guest network. PEI has architected a new network architecture that allows for secure connectivity for guest users, as well as the necessity to authenticate through a password for all guest users, which can be updated by the town. This Statement of Work defines the consulting services and deliverables that PEI will provide to Town of Avon. The purpose of these services is to assist Town of Avon in their effort to implement a new firewall for the guest network. Goals In prior discussions with Town of Avon, PEI has been able to perform a basic needs analysis that addresses both business and technical considerations, as related to conducting these phases of the work. These phases of work are in line with the PEI recommendations presented to Town of Avon in the PEI Network Documentation and Suggestions. PEI foresees the goals of the project to be: Firewall Solution • Lab, testing, configuration of the following equipment • One (1) Cisco ASA 5508 firewall • Installation of a Cisco ASA-X Firewall with IDS/IPS and URL filtering into the Guest Wireless Network • Setup of password protection policy for accessing the guest wireless network • On-site after-hours installation for one (1) firewall at Town of Avon • Validation of services passing through the firewall • Second day support of any issues happening due to the firewall replacement Training and Documentation • Documentation of updated as built architecture ATTACHMENT A: Guest Wireless Firewall Proposal Guest Wireless Firewall SOW Version 1.0 6/16/2021 SOW Expires 30 Days From Date of Submittal Page 4 of 9 Copyright 2021, PEI Confidential- Not to be Viewed, Copied, or Distributed Without Written Consent Scope Overview Solution Overview PEI performed a network assessment of the current wireless needs of the Town of Avon. This assessment highlighted a series of recommendations to improve security around activity on the guest network. Town of Avon would like to implement the recommendations provided. This Scope of Work outlines the architecture plan as well as the steps needed to implement and validate the solution. Firewall Solution PEI will implement a new Cisco ASA 5508 firewall. The firewall will be configured to run Intrusion Prevention Services to stop unauthorized activity. The solution will also be configured to enforce a password on all guest wireless services, ensuring the town can update access to the network as needed. Administrative Training and Documentation PEI will provide direct and indirect training throughout the implementation of the new network architecture. Indirect training will be provided by working together with the Town of Avon IT team throughout the deployment. Direct training will be facilitated by providing thorough administrative training. At the conclusion of the project, PEI will also provide documentation of the architecture implemented and of the work performed to implement the solution. Scope Details The consultative services provided by PEI will affect the following areas of Town of Avon environment. Platform Affected Description Firewall Solution • Lab, testing, configuration of the following equipment • One (1) Cisco ASA 5508 firewall • Installation of a Cisco ASA-X Firewall with IDS/IPS and URL filtering into the Guest Wireless Network • Connecting the firewall to the Avon Firepower Security Management server • Setup base policies for IPS to block BitTorrent and p2p file sharing • On-site after-hours installation for one (1) firewall at Town of Avon • Validation of services passing through the firewall • Second day support of any issues happening due to the firewall replacement Training and Documentation • Documentation of updated as built architecture ATTACHMENT A: Guest Wireless Firewall Proposal Guest Wireless Firewall SOW Version 1.0 6/16/2021 SOW Expires 30 Days From Date of Submittal Page 5 of 9 Copyright 2021, PEI Confidential- Not to be Viewed, Copied, or Distributed Without Written Consent Scope of Work Deliverables Each phase outlined in this SOW has specified deliverables. The following deliverables will be developed throughout the project with the involvement of Town of Avon IT team. A final version will be delivered within 14 business days of completion of any work. Phase 1 – Initial deployment plan and modifications to labor and materials estimations Phase 2 – Project timelines and task assignments and Production deployment Phase 3 – Documentation and training updates as requested All documents will be provided in electronic format. Out of Scope Details It is our mutual desire to properly understand the needs of this project, and to deliver the intended outcome. To that end, we must control changes to the deliverables and the requirements at the onset of the work. Changes to those initial, agreed upon parameters, are referred to as “out of scope”. Out of scope items will require a Change Order to be processed and typically are subject to additional charges. PEI will make every effort to identify such items and to discuss them prior to execution of the additional tasks. It is customary to have “out of scope” issues arise but, through timely and comprehensive communications, it is our intention to have mutual agreement on desired “extra” project tasks, and consent prior to additional engineering. Any area that is not explicitly listed as “within scope” is out of scope for this engagement. Assumptions and Responsibilities Assumptions: • Town of Avon will provide all software unless identified within the project quotation. Software provided must be legally licensed. Proof of licensing is required. • Town of Avon will provide all server and storage hardware necessary to complete this project unless identified within the project quotation. Server specifications will be provided by PEI. • Due to the complexity of the project and the time required to complete the project, this Scope of Work was created with the intent for work to be performed remotely from PEI offices in Colorado. If remote access is not capable, additional costs may apply. • This Scope of Work was built with the intent of PEI engineers working independently within Town of Avon’s environment. If this is not possible, additional costs may apply. ATTACHMENT A: Guest Wireless Firewall Proposal Guest Wireless Firewall SOW Version 1.0 6/16/2021 SOW Expires 30 Days From Date of Submittal Page 6 of 9 Copyright 2021, PEI Confidential- Not to be Viewed, Copied, or Distributed Without Written Consent • All work performed will be subject to PEI’s Professional Services Agreement. PEI will invoice services on a weekly basis unless an alternative billing schedule is mutually agreed upon. • This Statement-of-Work includes data that shall not be disclosed outside Town of Avon and shall not be duplicated, used, or disclosed - in whole or in part - for any purpose other than to evaluate this SOW or quotation. • All work must be scheduled with the PEI project manager. The PEI project manager will require no less than two weeks’ notice, ten (10) business days, prior to deployment; otherwise additional travel and expense cost may be incurred. Cancellations must be made one week in advance of the work schedule. Any travel related expenses purchased prior to cancellation shall be reimbursed by the client. • Client is responsible for all travel costs occurred with training (flight, ground transportation, hotel, per diem). Town of Avon Responsibilities: • Will provide appropriate administrative credentials to the affected environments. This may include Active Directory, Office 365, Azure, etc. • Will provide appropriate remote access for PEI to meet the objectives of this Scope of Work. Access may include VPN (or other) remote access, domain admin credentials. • Will provide base server, whether virtual or physical, needed for the success of this project. Preferred operating system for the base server(s) is Windows Server 2012 R2 or higher. • Will provide key personnel for network and infrastructure administration. • Will review and provide feedback on all submitted documentation within a timeframe mutually deemed acceptable to meet project schedule. • Will be responsible for end user training unless these services are specified as part of the SOW. • Will provide documentation of existing environment. Documentation should include user quantities, LAN/WAN documentation, VLAN configuration, voice configuration, etc. • Shall ensure that all environmental (power, cooling, etc.) and physical (cabling, rack config, etc.) requirements are met prior to deployment. • Will provide adequate workspace when on site, and proper access to facilities, systems and infrastructure needed to successfully deliver the solution. PEI Responsibilities: • Will provide the appropriate engineering resources for each phase in the SOW. • Will provide appropriate project management throughout the lifecycle of this project. • Will provide proper notification when accessing systems remotely. • Will provide customer and stakeholders the information and guidance with the system planning and configuration. • Will perform all work during business hours unless scheduled in advance (After hours work will be billed at a higher rate). ATTACHMENT A: Guest Wireless Firewall Proposal Guest Wireless Firewall SOW Version 1.0 6/16/2021 SOW Expires 30 Days From Date of Submittal Page 7 of 9 Copyright 2021, PEI Confidential- Not to be Viewed, Copied, or Distributed Without Written Consent Project Costs PEI Quote Worksheet - Town of Avon Description - Guest Wireless Firewall Price Qty Extended Version - 1.0 Avon, CO Consulting Services Consulting Services SUBTOTAL $6,679 Equipment and Materials Cisco ASA 5508-X with FirePOWER services, 8GE, AC, 3DES/AES $2,119 1 $2,119 Cisco ASA5508 FirePOWER IPS and URL 3YR Subs $2,033 1 $2,033 Equipment and Materials SUBTOTAL $4,152 Support Services Cisco SOLN SUPP 8X5XNBD ASA 5508-X with FirePOWER services 8GE A, 1 Year $539 1 $539 Support Services SUBTOTAL $539 PROJECT TOTAL $11,370 Labor Description : Professional Services consist of architecture and design, configuration, deployment, second day support, documentation, training and project management. ATTACHMENT A: Guest Wireless Firewall Proposal Guest Wireless Firewall SOW Version 1.0 6/16/2021 SOW Expires 30 Days From Date of Submittal Page 8 of 9 Copyright 2021, PEI Confidential- Not to be Viewed, Copied, or Distributed Without Written Consent Scope of Work Acceptance Bid: Note that all pricing listed on the proposal is priced as “Bid”. Proposal does not include sales tax or freight. All freight is FOB Origin. Tax and freight may appear on a separate invoice. Any quotes for labor or consulting during the various phases are based on a Bid. PEI will invoice for labor at the Bid amount on the proposal. Any changes in project scope may generate a Change Order that will be separate from the Bid amount and provided as a supplemental Bid. PEI requests a deposit of 50% of the Labor Total reflected in the Scope of Work in order to commence with an engagement. PEI will invoi ce 100% of the total of equipment, licensing, and support/maintenance reflected in the Scope of Work upon equipment, licensing, and support/maintenance. The remaining balance of the project will be invoiced based on the completion of project milestones. Project completion milestones will be mutually agreed to prior to the inception of a project. The proposed milestones completion schedule is as follows: Labor Milestones Milestone Description Percentage 1 Initial Deposit 50% 2 Lab integration & base configuration of Cisco equipment in PEI’s lab 20% 3 Installation of Cisco equipment in Avon headquarters 20% 4 Project Completion 10% Hardware Milestones Milestone Description Percentage 1 Shipping of Cisco Equipment 100% ATTACHMENT A: Guest Wireless Firewall Proposal 6/16/2021 SOW Expires 30 Days From Date of Submittal Page 9 of 9 Copyright 2021, PEI Confidential- Not to be Viewed, Copied, or Distributed Without Written Consent About PEI PEI, a Cisco Certified Partner, is a technology consultancy and service provider. We focus on several core areas of technology: Infrastructure, Networking, Unified Communications, Virtualization and Managed Services, with security always top of mind. By partnering with industry-leading companies, we enable our clients to realize the competitive value of technology solutions that drive real business results. We map a solution set that ensures your company has the essential tools needed to competitively succeed. Our mission is to architect and deliver technology solutions that effectively address our customers' business challenges. Founded in 1988, we have over 30 years of experience driving value for our customers by increasing efficiency, reducing costs, and delivering successful outcomes. Our highly experienced and professional engineering team is second to none with experience on more than 7,000 successful IT projects. Signatures By signing the approval, you acknowledge that this document serves as your purchase order, and that you have the authority at your organization to order goods and services. Authorized Agent (signature) Date Printed Name Title Purchase Order THIS QUOTATION IS VALID FOR 30 DAYS FROM THE DATE OF QUOTATION. UNIT PRICES AND DISCOUNTS APPLY TO THE SPECIFIC QUANTITIES QUOTED. DELIVERY INDICATED IS PEI'S BEST ESTIMATE AT THE TIME OF QUOTATION. PRICES QUOTED ARE EXCLUSIVE OF ANY APPLICABLE TAXES OR SHIPPING. ALL PRODUCTS ARE FOB ORIGIN. PEI'S TERMS AND CONDITIONS OF SALE APPLY TO ALL TRANSACTIONS. ATTACHMENT A: Guest Wireless Firewall Proposal