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HomeMy WebLinkAbout2020-06-01 (Special-Regular) Meeting Agenda Packet Please note: If you have a disability and need auxiliary aids or services, please notify the City of Englewood (303-762-2405) at least 48 hours in advance of when services are needed. Teleconferenced Englewood, CO 80110 AGENDA Teleconferenced City Council Special/Regular Meeting Monday, June 1, 2020 ♦ 6:00 PM This City Council Special / Regular meeting will be held by teleconference. To view the meeting, please follow this link to our YouTube live stream link https://www.youtube.com/watch?v=u955EIOCl6U 1. Call to Order 2. Pledge of Allegiance 3. Roll Call 4. Study Session Topics a. Police Chief John Collins will be present to discuss instituting body worn cameras within the Englewood Police Department. Pdf 5. Consideration of Minutes of Previous Session a. Minutes of the Special/Regular City Council Meeting of May 18, 2020. Pdf b. Minutes of the Special Emergency City Council Meeting of May 20, 2020. Pdf c. Minutes of the Special Meeting/Study Session City Council Meeting of May 26, 2020. Pdf 6. Appointments, Communications, Proclamations, and Recognition a. Director of Parks, Rec and Library Christina Underhill will be present to recognize and celebrate Englewood's Library 100th Anniversary with a proclamation. Pdf 7. Recognition of Scheduled Public Comment The deadline to sign up to speak for Scheduled Public Comment is Wednesday by 5 p.m., prior to the meeting, through the City Clerk’s Office. This is an opportunity for the public to address City Council. There is an expectation that the presentation will be conducted in a respectful manner. Council may ask questions for clarification, but there will not be any dialogue. Please limit your presentation to five minutes. Written materials for presentation to Council may be submitted to the City Clerk. 8. Recognition of Unscheduled Public Comment If you would like to sign-up to speak for public comment at the upcoming City Council meeting for Monday, June 1, please visit Page 1 of 202 Englewood City Council Regular Agenda June 1, 2020 Please note: If you have a disability and need auxiliary aids or services, please notify the City of Englewood (303-762-2405) at least 48 hours in advance of when services are needed. https://englewoodco.zoom.us/webinar/register/WN_l9sUJE2VRZ2cuKBEylziZw and register! You will receive a unique and personalized invitation by email to join the meeting. Every speaker who wants to register should sign-up with their own email address. If you do not have an email address or if you have any questions regarding this process, please reach out to the City Clerk's Office at CityClerk@englewoodco.gov or call 303-762-2430. Citizens may also submit written public comments to the City Clerk's Office at CityClerk@englewoodco.gov until 12 p.m. Tuesday, June 2. This is an opportunity for the public to address City Council. There is an expectation that the presentation will be conducted in a respectful manner. Council may ask questions for clarification, but there will not be any dialogue. Please limit your presentation to 3 minutes. Currently, we are not able to accommodate public presentations, however, they can be submitted for the packet. Council Response to Public Comment. 9. Consent Agenda Items a. Approval of Ordinances on First Reading b. Approval of Ordinances on Second Reading. i. CB18 - Approval of Intergovernmental Agreement with CDOT for the Design and Reconstruction of the US-285 and S Broadway Interchange. Pdf Staff recommends that City Council approve, by Ordinance, the Intergovernmental Agreement with CDOT for the Design and Reconstruction of the US-285 and S Broadway Interchange. Staff: Capital Projects Engineer Jacob Warren ii. CB 20 - Approval of IGA with the Urban Drainage and Flood Control District d/b/a Mile High Flood District for Major Drainageway Planning Pdf Staff recommends that City Council approve, by Ordinance, an Intergovernmental Agreement (IGA) with the Urban Drainage and Flood Control District d/b/a Mile High Flood District (MHFD) for Major Drainageway Planning. Staff: Capital Projects and Engineering Manager Tim Hoos c. Resolutions and Motions 10. Public Hearing Items 11. Ordinances, Resolutions and Motions a. Approval of Ordinances on First Reading i. CB 22 - Ordinance to submit a ballot issue to electors, re: C.R.S 29-27-101 et seq Page 2 of 202 Englewood City Council Regular Agenda June 1, 2020 Please note: If you have a disability and need auxiliary aids or services, please notify the City of Englewood (303-762-2405) at least 48 hours in advance of when services are needed. Pdf Staff recommends City Council approve a Bill for an Ordinance to submit a ballot issue to electors allowing the City to opt out of C.R.S. 29-27-101, et seq., an action that would exempt Englewood from State limitations on provision of broadband services. Staff: Information Technology Director Margaret Brocklander b. Approval of Ordinances on Second Reading c. Resolutions and Motions i. Professional Services Agreement to Prepare a Risk Assessment for Critical Water Assets. Pdf Staff recommends City Council approve, by Resolution, a Professional Services Agreement with CDM Smith in an amount not to exceed $107,258 to conduct a Risk and Resilience Assessment (RRA) and update the City’s 2004 Emergency Response Plan (ERP) for critical water assets. Staff: Deputy Director of Utilities Steve Simon and Director of South Platte Water Renewal Partners & Utilities Pieter Van Ry ii. Motion to approve Pre-Development Agreement with SKB Pdf Staff recommends City Council approve, by Motion, the execution of a Predevelopment Agreement (PDA) between the City/EEF and SKB of Portland, Oregon (also known as Scanlan Kemper Bard). Staff: Redevelopment Manager Dan Poremba and Senior Planner John Voboril 12. Covid-19 Update 13. General Discussion a. Mayor's Choice b. Council Members' Choice 14. City Manager’s Report 15. City Attorney’s Report 16. Adjournment Page 3 of 202 STUDY SESSION TO: Mayor and Council FROM: John Collins DEPARTMENT: Police DATE: June 1, 2020 SUBJECT: Body Worn Cameras DESCRIPTION: Body Worn Cameras RECOMMENDATION: Staff seeks direction from the City Council regarding whether to identify resources for the purchase and ongoing technical and legal requirements associated with instituting body worn cameras within the Police Department. PREVIOUS COUNCIL ACTION: The City Council has previously been advised about the topic of body cameras worn by the police. A member of the City Council has requested an updated discussion of the topic to take place during a study session. SUMMARY: Cameras worn on the person of police officers (BWCs) provide an after the fact review of police interactions with citizens, victims, witnesses, and suspects. The cameras provide a video feed which is recorded and securely preserved for retrieval at a later date. BWCs have proven to be a useful tool in other jurisdictions for police administration, prosecutors, and city administrative officials seeking proof concerning criminal activity, review of police administrative protocols, and the means to respond to citizen complaints and allegations. While local governments and police departments benefit greatly from Body Worn Cameras, the substantial cost associated with both the initial investment in the equipment and training, as well as the costs associated with maintaining and retrieving the videos in conformance with court requirements and open records requests, place BWC outside the fiscal resources of many municipalities. ANALYSIS: Sergeant Mark McKay, with assistance from Information Technology, has conducted research on this topic and his memorandum is attached. FINANCIAL IMPLICATIONS: Please see attached memo for detailed analysis of the costs anticipated to be associated with providing body worn cameras to the police department. Page 4 of 202 ATTACHMENTS: Memo: Sergeant Mark McKay, May 14, 2020 Page 5 of 202 To: John Collins, Chief of Police From: Mark McKay, Sergeant Date: May 14, 2020 Subject: Body Worn Camera (BWC) Program The technological advancements of our society have driven industries and professions to explore options to increase production and services in the most efficient and effective manner. With the continued improvements of video records and digital cameras, police agencies across the nation have implemented or explored the establishment of a Body Worn Camera (BWC) program. BWCs donned by officers allows for the interaction of police encounters with citizen, victims, witness, and suspects to be recorded via video and securely preserved for retrieval at a later date. BWCs have proven to be useful in administrative investigations mitigating frivolous allegations of police misconduct and lawsuits. BWCs play a vital roll in criminal investigations providing quality real-time evidence for criminal prosecution and increases court plea bargains, guilty pleas, and is instrumental regarding domestic violence arrests and prosecutions. Body Worn Cameras require a substantial commitment of finances, resources and logistics. There are recurring monetary costs of hardware, repairs and replacements, (cameras, mounting equipment, docking stations) along with the annual inflation of software, secure storage, redaction programs, and licensing. Additionally, commitment of staff resources from the Information Technology (I.T.) Department in consort with the City Attorney’s Office to ensure cyber security and compliance with Colorado Open Records Act (CORA), Colorado Criminal Justice Records Act (CCJRA), and Civil Rights legal requirements is necessary. The minimum time obligation from each department would be 10-15 hours per week for implementation and training along with 5-8 hours per week on an ongoing basis. For any BWC program to be successful, there must be detailed policies and procedures in place including officer training, privacy rights and legal considerations. The estimated budget to implement a Body Worn Camera program are as follows: Hiring three full time Police Digital Media Technicians – Base Salary Range $45,000. – $61,000 Annually. Description of Work Under general supervision of the Records Supervisor, provides complete case files of discoverable materials to the District Attorney’s Office and duplicated digital media as requested in accordance with the Colorado Open Records Act (CORA) and Colorado Criminal Justice Records Act (CCJRA). Performs duties in a manner consistent with stated values of the organization. Media Technician Estimated Full-Time Employee Base Salary X 3 = $183,000 Annually Page 6 of 202 Option 1 Based on 80 users. Cloud Solution (Vendors Equipment) Hardware Purchase (Includes Cameras and Docks) = Total $104,000 Non-Sworn Software Licenses: $7,600 Sworn Officer Software Licenses and storage costs: $155 per month per sworn. = $148,800 a year. Equipment and Storage Year 1 Costs = $260,400 Media Technician Salary = $183,000 First Year Annual Cost $443,400 *Recurring Annual Cloud Solution costs (Includes Software and Hardware, Maintenance) = $158,800 per year with a compounded estimated 3-5% inflation rate. Option 2 Based on 80 users. On Premise Solution (City owned Equipment) SAN/Storage Solution. Would need storage and backup hardware. The estimated usage would be 263TB per year needed = Upwards of $500,000 Software Licensing per device = $16,000 Hardware for Cameras = $104,000 Equipment and Storage Year 1 Costs = $620,000 Media Technician Salary = $183,000 First Year Annual Cost $ 803,000 *Recurring Annual On-Prem Solution costs for camera and storage = $60,000 per year with a compounded estimated 3-5% inflation rate. A list of Pros and Cons of Body Worn Cameras are listed. Pros: Easy to research by case, officer and date. Easy to make cases and add evidence to the case. Easy to add case numbers and officer name. Able to review photos and videos. Able to sort and review by officer, video only and photo’s individually. Able to add evidence to the case after the data is uploaded. Page 7 of 202 You can select who you want to share the evidence with and how long it is stored. Restrict editing rights, view only mode. Establishes an audit trial to determine who has viewed the case, lists download users. Ability to view video footage in internal investigations such as officer complaints. Public perception of departmental transparency. Officer accountability. Officers may feel additional protection from false allegations of misconduct. Drafting Policy and Procedures. Mitigates vicarious liability. Evidentiary value with cases filed. Easy connectivity to DA’s office for criminal prosecution. Cons: Financial costs committed to support the program long term. Hiring two to three full-time employees to manage and support the program. Costs to purchase new equipment as a recurring cost. New and improved technology is surpassing current equipment. Commitment of staff resources from the I.T. department. Commitment of staff resources from the City Attorney’s Office. Officer did not classify (tag) the evidence correctly it could be deleted and not recoverable. The redaction software is constantly improving. Redacted video rendering is a long process and if a correction is made, it is difficult to determine the original from the amended video. It takes time to download video media from the BWC. When criminal charges are added, felony, misdemeanor, state traffic, etc., a code number is required to amend the charges to the case. Captures specific details of the BWC and may not represent the totality of the incident. Requires the direct support of I.T. and subject matter experts. Drafting Policy and Procedures, special considerations, ACLU requirements, mandating use, bathroom breaks… Time to draft Policy and Procedures. (Policy and Procedure) Who and how you release video footage requests. (Policy and Procedure) Video retention policy and video storage. (Police and Procedure) Once the BWC program is implemented, it may be difficult to discontinue its use due to public perception, media outlets, and officers supporting the program. Training on the camera systems. Time and training personnel. Increasing data storage cost annually. Costs to create a backup storage venue of video files. Recommendation: The implementation of a body-worn camera program is a major long-term financial commitment. The Cloud Based Solution may be beneficial over the On-Premise Solution due to the fact technology is Page 8 of 202 advancing at a remarkable pace. The constant improvements with software and hardware may render current products obsolete in short order. I would defer Solution recommendation to the subject matter experts in our information technology department. Once a BWC camera program is established, it may be extremely difficult to terminate based on public, media and police officer’s opposition. Page 9 of 202 MINUTES City Council Regular Meeting Monday, May 18, 2020 Teleconferenced 6:00 PM 1 Call to Order The Special/Regular meeting of the Englewood City Council was called to order by Mayor Olson at 6:01 p.m. and held by teleconference 2 Pledge of Allegiance The Pledge of Allegiance was led by Mayor Olson 3 Roll Call COUNCIL PRESENT: Mayor Linda Olson Mayor Pro Tem Othoniel Sierra Council Member Joe Anderson Council Member Dave Cuesta Council Member Rita Russell Council Member Cheryl Wink Council Member John Stone COUNCIL ABSENT: None STAFF PRESENT: City Manager Lewis City Attorney McKenney Brown Deputy City Manager Hargrove City Clerk Carlile Deputy City Clerk Truscott Reed Director Brocklander, Information Technology Director Sobota, Finance and Administration Revenue and Tax Audit Supervisor Driscoll, Finance and Administration Director Power, Community Development Director Van Ry, South Platte Water Renewal Partners, and Utilities Deputy Director of Engineering Woo, South Platte Water Renewal Partners Engineer II Schroeder, South Platte Water Renewal Partners Director D'Andrea, Public Works Maintenance and Operations Manager Ortega, Public Works Capital Projects and Engineering Manager Hoos, Public Works Construction Manager Main, Public Works Page 1 of 8 Draft Page 10 of 202 City Council Regular May 18, 2020 Capital Projects Engineer Warren, Public Works Deputy Director King, Information Technology 4 Study Session Topics a) City Attorney McKenney Brown and Information Technology Director Brocklander discussed C.R.S 29-27-101 et seq. Opt Out Ballot Question. b) Finance and Administrative Director Sobota discussed the Review of Lodger's Sales Tax Increase. c) Finance and Administrative Director Sobota discussed the April 2020 Financial Review and Fiscal Year 2019 Financial Update. d) City Attorney McKenney Brown discussed the Charter Amendment Process regarding Selection of Mayor. e) City Council discussed Public Comment at Council Meetings. 5 Consideration of Minutes of Previous Session a) Minutes of the Regular City Council Meeting of May 4, 2020. Moved by Council Member Othoniel Sierra Seconded by Council Member Joe Anderson APPROVAL OF THE MINUTES OF THE SPECIAL/REGULAR CITY COUNCIL MEETING OF MAY 4, 2020 For Against Abstained Linda Olson x Othoniel Sierra (Moved By) x Joe Anderson (Seconded By) x Dave Cuesta x Rita Russell x Cheryl Wink x John Stone x 7 0 0 Motion CARRIED. 6 Appointments, Communications, Proclamations, and Recognition There were no Appointments, Communications, Proclamations or Recognition. 7 Recognition of Scheduled Public Comment a) Nicole Bigelow, an Englewood Resident, was scheduled to speak but was not present to address Council. 8 Recognition of Unscheduled Public Comment Page 2 of 8 Draft Page 11 of 202 City Council Regular May 18, 2020 There were no speakers present for Council to respond to. 9 Consent Agenda Items Moved by Mayor Pro Tem Sierra seconded by Council Member Stone to approve Consent Agenda Items 9 (b)(i-ii). a) Approval of Ordinances on First Reading There were no additional Ordinances on First Reading (See Agenda Items 11(a)(i-ii).) b) Approval of Ordinances on Second Reading. i) CB 17 - SPWRP Gas Recovery Facility Permanent Easement ORDINANCE NO. 17 SERIES OF 2020 (COUNCIL BILL NO. 17, INTRODUCED BY COUNCIL MEMBER ANDERSON) AN ORDINANCE AUTHORIZING A GRANT OF A BIOGAS PIPELINE AND CUSTODY TRANSFER STATION PERMANENT EASEMENT BETWEEN THE CITIES OF ENGLEWOOD AND LITTLETON, COLORADO AND PUBLIC SERVICE COMPANY OF COLORADO, LOCATED ON THE SOUTH PLATTE WATER RENEWAL PARTNERS TREATMENT PLANT PROPERTY ii) CB 19 - Approval of IGA with CDOT to Construct the Oxford Pedestrian Bridge ORDINANCE NO. 18 SERIES OF 2020 (COUNCIL BILL NO. 19, INTRODUCED BY COUNCIL MEMBER SIERRA) AN ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE COLORADO DEPARTMENT OF TRANSPORTATION (CDOT) AND THE CITY OF ENGLEWOOD FOR THE CONSTRUCTION OF THE OXFORD AVENUE PEDESTRIAN BRIDGE, PROJECT #STU M395-020 (23571) Moved by Council Member Othoniel Sierra Seconded by Council Member John Stone Motion to approve Consent Agenda Items 9(b)(i-ii). For Against Abstained Linda Olson x Othoniel Sierra (Moved By) x Page 3 of 8 Draft Page 12 of 202 City Council Regular May 18, 2020 Joe Anderson x Dave Cuesta x Rita Russell x Cheryl Wink x John Stone (Seconded By) x 7 0 0 Motion CARRIED. c) Resolutions and Motions There were no additional Resolutions or Motions (See Agenda Items 11(c)(i- ii).) 10 Public Hearing Items No public hearing was scheduled before Council. 11 Ordinances, Resolutions and Motions a) Motion to approve Pre-Development Agreement with SKB Moved by Council Member Othoniel Sierra Seconded by Council Member John Stone In accordance with a recommendation from the Board of the Englewood Environmental Foundation (EEF), approved by motion at the May 7, 2020 EEF Board Meeting, Community Development staff recommends that the City Council approve by motion the execution of a Predevelopment Agreement (PDA) between the City/EEF and SKB of Portland, Oregon (also known as Scanlan Kemper Bard). If approved, the City and EEF will each be a party to the PDA which reflects the selection of SKB as the preferred master developer for the City to partner with in redeveloping the “City Property” at Englewood City Center. This is the property owned or controlled by the City and EEF as shown in blue on the attached site plan. For Against Abstained Linda Olson x Othoniel Sierra (Moved By) x Joe Anderson x Dave Cuesta x Rita Russell x Cheryl Wink x John Stone (Seconded By) x 7 0 0 Motion TABLED Page 4 of 8 Draft Page 13 of 202 City Council Regular May 18, 2020 a) Approval of Ordinances on First Reading i) CB 18 - Approval of Intergovernmental Agreement with CDOT for the Design and Reconstruction of the US-285 and S Broadway Interchange. Moved by Council Member Cheryl Wink Seconded by Council Member John Stone COUNCIL BILL NO. 18, INTRODUCED BY COUNCIL MEMBER WINK A BILL FOR AN ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE COLORADO DEPARTMENT OF TRANSPORTATION (CDOT) AND THE CITY OF ENGLEWOOD FOR THE RECONSTRUCTION OF THE BROADWAY/US 285 INTERCHANGE PROJECT #STU 2854-145 (23553) For Against Abstained Linda Olson x Othoniel Sierra x Joe Anderson x Dave Cuesta x Rita Russell x Cheryl Wink (Moved By) x John Stone (Seconded By) x 7 0 0 Motion CARRIED. ii) CB 20 - Approval of IGA with the Urban Drainage and Flood Control District d/b/a Mile High Flood District for Major Drainageway Planning. Moved by Council Member Cheryl Wink Seconded by Council Member Joe Anderson COUNCIL BILL NO. 20, INTRODUCED BY COUNCIL MEMBER WINK A BILL FOR AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT (IGA) “AGREEMENT REGARDING FUNDING OF MAJOR DRAINAGEWAY PLANNING FOR CITY OF ENGLEWOOD” - AGREEMENT NO. 20-02.11 PROJECT NO. 108025, BETWEEN THE URBAN DRAINAGE AND FLOOD CONTROL DISTRICT AND THE CITY OF ENGLEWOOD. For Against Abstained Page 5 of 8 Draft Page 14 of 202 City Council Regular May 18, 2020 Linda Olson x Othoniel Sierra x Joe Anderson (Seconded By) x Dave Cuesta x Rita Russell x Cheryl Wink (Moved By) x John Stone x 7 0 0 Motion CARRIED. b) Approval of Ordinances on Second Reading There were no additional Ordinances on Second Reading (See Agenda Item 9(b)(i)-(ii).) c) Resolutions and Motions i) Contract Approval for the 2020 Sidewalk Trip Hazard Elimination Program Moved by Council Member Cheryl Wink Seconded by Council Member Joe Anderson RESOLUTION NO. 18, SERIES OF 2020 A RESOLUTION AWARDING AN OPTIMAL SOURCE CONTRACT TO PRECISION CONCRETE CUTTING FOR THE 2020 SIDEWALK TRIP HAZARD ELIMINATION PROGRAM For Against Abstained Linda Olson x Othoniel Sierra x Joe Anderson (Seconded By) x Dave Cuesta x Rita Russell x Cheryl Wink (Moved By) x John Stone x 7 0 0 Motion CARRIED. 12 COVID-19 Update a) City of Englewood COVID-19 Recovery Manager Brad Power will provided an update. Page 6 of 8 Draft Page 15 of 202 City Council Regular May 18, 2020 b) CB 21 - Approval of an emergency ordinance authorizing the CARES Act Moved by Council Member John Stone Seconded by Council Member Joe Anderson COUNCIL BILL NO. 21, INTRODUCED BY COUNCIL MEMBER ANDERSON A BILL FOR AN EMERGENCY ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE BOARD OF COUNTY COMMISSIONERS OF ARAPAHOE COUNTY, COLORADO, AND THE CITY OF ENGLEWOOD, COLORADO, REGARDING “CARES ACT” LOCAL GOVERNMENT DISTRIBUTION. For Against Abstained Linda Olson x Othoniel Sierra x Joe Anderson (Seconded By) x Dave Cuesta x Rita Russell x Cheryl Wink x John Stone (Moved By) x 7 0 0 Motion CARRIED. 13 General Discussion a) Mayor's Choice b) Council Members' Choice 14 City Manager’s Report 15 City Attorney’s Report 16 Adjournment Roll call was taken to adjourn the meeting - Seven Ayes. The meeting adjourned at 9:18 p.m City Clerk Page 7 of 8 Draft Page 16 of 202 City Council Regular May 18, 2020 Page 8 of 8 Draft Page 17 of 202 MINUTES City Council Special Meeting Wednesday, May 20, 2020 Teleconferenced 6:00 PM COUNCIL PRESENT: Linda Olson Dave Cuesta Othoniel Sierra Rita Russell John Stone Joe Anderson COUNCIL ABSENT: Cheryl Wink STAFF PRESENT: City Manager Lewis City Attorney McKenney Brown Deputy City Manager Hargrove Deputy City Clerk Truscott Reed Deputy Director King, Information Technology 1 Call to Order The Special Emergency meeting of the Englewood City Council was called to order by Mayor Olson at 6:05 p.m. and held by teleconference. 2 Roll Call COUNCIL PRESENT: Mayor Linda Olson Mayor Pro Tem Othoniel Sierra Council Member Joe Anderson Council Member Dave Cuesta Council Member Rita Russell Council Member John Stone COUNCIL ABSENT: Council Member Cheryl Wink STAFF PRESENT: City Manager Lewis City Attorney McKenney Brown Deputy City Manager Hargrove Deputy City Clerk Truscott Reed Deputy Director King, Information Technology Page 1 of 3 Draft Page 18 of 202 City Council Special May 20, 2020 3 Approval of Ordinances on Second Reading a) CB 21 - Approval of an emergency ordinance authorizing the CARES Act Moved by Council Member Othoniel Sierra Seconded by Council Member Rita Russell Moved by Council Member Othoniel Sierra Seconded by Council Member Rita Russell Motion to approve Ordinance 21, Series 2020 (CB 21) as amended to conform to the version approved by Arapahoe County on May 19th, 2020 COUNCIL BILL NO. 21, INTRODUCED BY COUNCIL MEMBER ANDERSON A BILL FOR AN EMERGENCY ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE BOARD OF COUNTY COMMISSIONERS OF ARAPAHOE COUNTY, COLORADO, AND THE CITY OF ENGLEWOOD, COLORADO, REGARDING “CARES ACT” LOCAL GOVERNMENT DISTRIBUTION. . For Against Abstained Linda Olson x Dave Cuesta x Othoniel Sierra (Moved By) x Rita Russell (Seconded By) x John Stone x Joe Anderson x 6 0 0 Motion CARRIED. Moved by Council Member Rita Russell Seconded by Council Member John Stone Motion to add an additional reading of Ordinance 21, Series 2020 (CB 21) to the Special Meeting/ Study Session of May 26th, 2020. For Against Abstained Linda Olson x Dave Cuesta x Othoniel Sierra x Rita Russell (Moved By) x John Stone (Seconded By) x Joe Anderson x Page 2 of 3 Draft Page 19 of 202 City Council Special May 20, 2020 6 0 0 Motion CARRIED. 4 Adjournment Roll call was taken to adjourn the meeting - Six Ayes. The meeting adjourned at 6:15 p.m. City Clerk Page 3 of 3 Draft Page 20 of 202 MINUTES City Council Special/Study Session Meeting Tuesday, May 26, 2020 Teleconferenced 6:00 PM COUNCIL PRESENT: Joe Anderson Dave Cuesta Rita Russell Othoniel Sierra John Stone Cheryl Wink Linda Olson COUNCIL ABSENT: None STAFF PRESENT: City Manager Lewis City Attorney McKenney Brown Deputy City Manager Hargrove City Clerk Carlile Director D'Andrea, Public Works Court Administrator Wolfe, Municipal Court Director Henger, Human Resources Director Sobota, Finance Director Brocklander, Information Technology Director Power, Community Development Chief Collins, Police Department Director Underhill, Parks, Recreation and Library Director Harguth, Communications Director Van Ry, South Platte Water Renewal Partners/ Utilities 1 Call to Order The Special/Study Session meeting of the Englewood City Council was called to order by Mayor Olson at 6:01 p.m. and held by teleconference. 2 Roll Call 3 Approval of an Emergency Ordinance authorizing the CARES Act a) Council Bill No. 21 - An Emergency Ordinance authorizing the CARES Act. Moved by Council Member John Stone Seconded by Council Member Joe Anderson ORDINANCE NO. 19, SERIES OF 2020 (COUNCIL BILL NO. 21 Page 1 of 2 Draft Page 21 of 202 City Council Study Session May 26, 2020 INTRODUCED BY COUNCIL MEMBER STONE) AN EMERGENCY ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE BOARD OF COUNTY COMMISSIONERS OF ARAPAHOE COUNTY, COLORADO, AND THE CITY OF ENGLEWOOD, COLORADO, REGARDING “CARES ACT” LOCAL GOVERNMENT DISTRIBUTION. For Against Abstained Joe Anderson (Seconded By) x Dave Cuesta x Rita Russell x Othoniel Sierra x John Stone (Moved By) x Cheryl Wink x Linda Olson x 7 0 0 Motion CARRIED. 4 2021 City Council Budget Workshop a) Finance and Administrative Director Maria Sobota and all Department Directors presented the 2021 City Council Budget Workshop. The meeting recessed at 7:35 p.m. for a break. The meeting reconvened at 7:42 p.m. with all Council Members present. 5 Council Member’s Choice 6 City Manager’s Choice 7 City Attorney’s Choice 8 Adjournment MAYOR OLSON MOVED TO ADJOURN. The meeting adjourned at 10:17 p.m. City Clerk Page 2 of 2 Draft Page 22 of 202 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Christina Underhill DEPARTMENT: Parks, Recreation & Library DATE: June 1, 2020 SUBJECT: Library 100th Anniversary DESCRIPTION: Library 100th Anniversary RECOMMENDATION: Staff recommends Council to proclaim June 1, 2020 as the day to recognize and celebrate Englewood's Library 100th Anniversary. SUMMARY: On June 1, 2020 the Library will be celebrating the 100th year of being a part of the Englewood community. Library staff has many events, give away and promotional items planned to celebrate this milestone. Here are the plans to celebrate 100 years. The plans have been modified to accommodate closures due to COVID 19: • 100th Birthday stickers for Library cards – The stickers will be available for purchase. If a sticker is purchased the cardholder could have fines waived, as well as, they will be entered into a raffle for prizes. • Monthly Programs: o June (Mon) –Council Recognition at the June 1st Council meeting o July (Sat) – Historical Society Presentation on the history of the library and possibly key events in the City. This could be done virtually. o August (Sat) – Silent Movies. We will show a few short silent movies from the 1920s. We are looking into the cost of having a live pianist play along with the movies. We also want to sell popcorn, soda, and 1920s style candy. o September (Sat) – 1920’s Gala. Advanced ticket sales, reasonable for families to attend. Live entertainment, food and non-alcoholic refreshments. All activities at the Gala will revolve around 1920's. • Fundraising efforts (stickers, Gala Tickets, Silent auction, and donation drive) would go towards replacing or repairing & wrapping the book drops with the library card image. Page 23 of 202 FINANCIAL IMPLICATIONS: The library will utilize funds from the SCFD, Library Board donation and general fund. Total funding to support the Library's 100th Anniversary will be around $3,500. CONCLUSION: The Library Staff are thrilled to celebrate the Library's 100th year in service. We look forward to providing library services to the Englewood community for the next 100 years. ATTACHMENTS: Englewood Library's 100th anniversary proclamation Page 24 of 202 P R O C L A M A T I O N Celebrating the 100th Anniversary of the Englewood Public Library WHEREAS, the Englewood Public Library traces its history to the tragic story of Anna Dell Spencer, a small child who was killed prior to World War I, when her mother took the girl’s life savings of $1.50 and donated it as a foundation to a library; and WHEREAS, the Englewood Public Library opened its doors to the public on June 1st, 1920, when the first Librarian and Custodian assumed her duties; and WHEREAS, the Englewood Public Library has been supported by the City of Englewood since 1921, when the City Council agreed to pay $100 per month in support of the library; and WHEREAS, from these modest beginnings the library grew with the community, moving to the Chrysler Building in 1929, and moving with City Hall in 1934, 1951, and 1965, and finally in 2000 into the Englewood Civic Center; and WHEREAS, the Englewood Public Library now serves over 26,000 patrons and holds a collection of over 70,000 items, as well as a broad range of digital resources; and WHEREAS, the Englewood Public Library’s value to the community goes beyond its collection of materials, serving as a center of learning and recreation through programs and classes for families, children, seniors, students, job seekers, and the intellectually curious; and WHEREAS, the Englewood Public Library will celebrate its 100th anniversary on June 1st, 2020 NOW THEREFORE, BE IT PROCLAIMED that the Englewood City Council does hereby proclaim June 1st, 2020, as a day to celebrate the 100th anniversary of the Englewood Public Library. GIVEN under my hand and seal this 1st day of June, 2020 Linda Olson, Mayor Page 25 of 202 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Jacob Warren DEPARTMENT: Public Works DATE: June 1, 2020 SUBJECT: CB #18 - Approval of Intergovernmental Agreement with CDOT for the Design and Reconstruction of the US-285 and S Broadway Interchange. DESCRIPTION: CB #18 - Approval of Intergovernmental Agreement with CDOT for the Design and Reconstruction of the US-285 and S Broadway Interchange. RECOMMENDATION: City staff recommends approval of an ordinance. PREVIOUS COUNCIL ACTION: The city signed a letter of support, dated February 19, 2019, committing $1,100,000 towards the local match from the City. SUMMARY: City staff applied for a federal grant to reconstruct the US-285 and South Broadway Interchange through the Denver Regional Council of Governments (DRCOG) Transportation Improvement Program (TIP). A grant was awarded to the City in the amount of $7.6 million. In order to receive the federal grant money, the City is required to enter into an Intergovernmental Agreement (IGA) with the Colorado Department of Transportation (CDOT) as well as commit to a local match of 20% of the total project cost. The local match will be met through a $1,100,000 commitment from the City of Englewood and an $800,000 commitment of state funds from CDOT. The $800,000 commitment from CDOT is contingent on this project modifying access to US-285 from local streets at one or more signalized intersections near the US-285 and South Broadway interchange. This would likely include removal of the traffic signal and modifying the median at the intersection of Sherman Street, thereby, limiting access to right turning movements only. An IGA is required as CDOT is responsible for overseeing and administering all federal transportation funds in the state on behalf of the Federal Highway Administration (FHWA). The IGA defines roles and responsibilities for each party and details the funding and disbursements process. The IGA also details federal bidding and construction requirements such as compliance with wage provisions in the Davis-Bacon Act, a minimum Disadvantaged Business Enterprise goal, etc. ANALYSIS: This project will give the City the opportunity to improve cross-sectional elements on the South Broadway bridge over US-285. Such improvements will include: an improved pedestrian and Page 26 of 202 bicycle experience through wider sidewalks and a buffer zone between pedestrian and vehicle traffic, improved aesthetics on a keynote piece of infrastructure in the downtown district, and narrower lanes promoting safer driving as traffic enters the pedestrian dense downtown district. Furthermore, this project will significantly relieve congestion on US-285 by adding an additional through lane in each direction under the bridge, reducing commute times for Englewood residents and improving regional access to Englewood's downtown district. A sidewalk or trail along US 285 will also be constructed. Currently, there is a significant missing section of sidewalk along the south side of US 285 in the vicinity of the interchange. The design phase for this project is anticipated to last through 2021. The construction phase is anticipated to begin in early 2022 and continue through the end of 2023. FINANCIAL IMPLICATIONS: Funding in the amount of $1,100,000 for the city's portion of the local match has been budgeted in the 2020 Public Improvement Fund. A summary of the project funding sources is shown below: Funding Source Amount % of Total Federal Transportation Grant (DRCOG) $7,600,000 80% CDOT State Matching Funds $800,000 8.4% City of Englewood $1,100,000 11.6% Total $9,500,000 100% CONCLUSION: Staff recommends that the City Council approve an Ordinance to enter into an Intergovernmental Agreement with the Colorado Department of Transportation to facilitate the design and re-construction of the US-285 & South Broadway Interchange. ATTACHMENTS: Council Bill #18 Englewood-CDOT Intergrovernmental Agreement US-285 & South Broadway Interchange Aerial View Public Improvement Fund Budget Sheet Page 27 of 202 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. 18 SERIES OF 2020 INTRODUCED BY COUNCIL MEMBER WINK AN ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE COLORADO DEPARTMENT OF TRANSPORTATION (CDOT) AND THE CITY OF ENGLEWOOD FOR THE RECONSTRUCTION OF THE BROADWAY/US 285 INTERCHANGE PROJECT #STU 2854-145 (23553) WHEREAS, the Colorado Department of Transportation (CDOT) administers federal and state funds to provide monies for the development of enhanced transportation projects throughout the State of Colorado; WHEREAS, CDOT currently administers Fixing America’s Surface Transportation Act (FAST Act) which allocates certain federal funds for transportation projects requested by Local Agencies and eligible under the Surface Transportation Improvement Program; WHEREAS, the State is responsible for the general administration and supervision of performance of projects in the Program, including the administration of federal funds for a Program project performed by a Local Agency under a contract with the State; WHEREAS, the Federal funds will assist the City in reconstructing the South Broadway and US 285 Interchange; WHEREAS, Article XIV, Section 18(2)(a) of the Constitution of the State of Colorado, and Part 2, Article 1, Title 29, C.R.S. encourages and authorizes intergovernmental agreements; WHEREAS, Sections 29-1-203 and 29-1-203.5, C.R.S. authorize governments to cooperate and contract with one another to provide any function, service, or facility lawfully authorized to each; WHEREAS, Federal funds will pay for 80% of the project in the amount of $7,600,000.00 with the City of Englewood contributing 11.58% in matching funds in the amount of $1,100,000.00 from the Public Works Department’s Public Improvement Fund 30-1001 100-02; and 8.42% in State Matching Funds in the amount of $800,000; and Page 28 of 202 2 WHEREAS, the passage of this Ordinance will authorize the Colorado Department of Transportation (CDOT) to release the federal funds for the reconstruction of the South Broadway and US 285 Interchange. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section 1. The City Council of the City of Englewood, Colorado hereby authorizes the Intergovernmental Agreement entitled Reconstruction of the Broadway US 285 Interchanges # STU 2854-145 (23553), and the City of Englewood, a copy of which is marked as “Exhibit A” and attached hereto. Section 2. The Mayor is hereby authorized to sign and accept Federal Funds administered through the Colorado Department of Transportation for and on behalf of the City of Englewood, Colorado, attached hereto as Exhibit A. Introduced, read in full, and passed on first reading on the 18th day of May, 2020. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 21st day of May, 2020. Published as a Bill for an Ordinance on the City’s official website beginning on the 20th day of May, 2020 for thirty (30) days. Read by Title and passed on final reading on the 1st day of June, 2020. Published by Title in the City’s official newspaper as Ordinance No. ___, Series of 2020, on the 4th day of June, 2020 Published by title on the City’s official website beginning on the 3rd day of June, 2020 for thirty (30) days. This Ordinance shall take effect thirty (30) days after publication following final passage. Linda Olson, Mayor Page 29 of 202 3 ATTEST: Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Ordinance passed on final reading and published by Title as Ordinance No. ___, Series of 2020. Stephanie Carlile Page 30 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 1 of 25 STATE OF COLORADO INTERGOVERNMENTAL AGREEMENT Signature and Cover Page State Agency Department of Transportation Agreement Routing Number 20-HA1-XC-03044 Local Agency City of Englewood Agreement Effective Date The later of the effective date or March 25, 2020 Agreement Description Reconstruction of Broadway/US 285 Interchange Agreement Expiration Date March 24, 2030 Project # STU 2854- 145 (23553) Region # 1 Contract Writer JH Agreement Maximum Amount $9,500,000.00 THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT Each person signing this Agreement represents and warrants that he or she is duly authorized to execute this Agreement and to bind the Party authorizing his or her signature. LOCAL AGENCY City of Englewood ___________________________________________ Signature ___________________________________________ By: (Print Name and Title) Date: _________________________ STATE OF COLORADO Jared S. Polis, Governor Department of Transportation Shoshana M. Lew, Executive Director ___________________________________________ Stephen Harelson, P.E., Chief Engineer Date: _________________________ 2nd State or Local Agency Signature if Needed ___________________________________________ Signature ___________________________________________ By: (Print Name and Title) Date: _________________________ LEGAL REVIEW Philip J. Weiser, Attorney General ___________________________________________ Assistant Attorney General ___________________________________________ By: (Print Name and Title) Date: _________________________ In accordance with §24-30-202 C.R.S., this Agreement is not valid until signed and dated below by the State Controller or an authorized delegate. STATE CONTROLLER Robert Jaros, CPA, MBA, JD By:___________________________________________ Department of Transportation Effective Date:_____________________ Page 31 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 2 of 25 TABLE OF CONTENTS 1. PARTIES ................................................................................................................................................. 2 2. TERM AND EFFECTIVE DATE ........................................................................................................... 2 3. AUTHORITY .......................................................................................................................................... 3 4. PURPOSE ............................................................................................................................................... 3 5. DEFINITIONS ........................................................................................................................................ 4 6. STATEMENT OF WORK ...................................................................................................................... 6 7. PAYMENTS ........................................................................................................................................... 9 8. REPORTING - NOTIFICATION ......................................................................................................... 13 9. LOCAL AGENCY RECORDS ............................................................................................................. 14 10. CONFIDENTIAL INFORMATION-STATE RECORDS .................................................................... 15 11. CONFLICTS OF INTEREST ............................................................................................................... 15 12. INSURANCE ........................................................................................................................................ 16 13. BREACH ............................................................................................................................................... 17 14. REMEDIES ........................................................................................................................................... 18 15. DISPUTE RESOLUTION ..................................................................................................................... 19 16. NOTICES AND REPRESENTATIVES ............................................................................................... 19 17. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION ...................................................... 20 18. GOVERNMENTAL IMMUNITY ........................................................................................................ 21 19. STATEWIDE CONTRACT MANAGEMENT SYSTEM ................................................................... 21 20. GENERAL PROVISIONS .................................................................................................................... 21 21. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3) ..................................... 23 22. FEDERAL REQUIREMENTS ............................................................................................................. 25 23. DISADVANTAGED BUSINESS ENTERPRISE (DBE) ..................................................................... 25 24. DISPUTES ............................................................................................................................................ 25 EXHIBIT A, STATEMENT OF WORK EXHIBIT B, SAMPLE OPTION LETTER EXHIBIT C, FUNDING PROVISIONS EXHIBIT D, LOCAL AGENCY RESOLUTION EXHIBIT E, LOCAL AGENCY AGREEMENT ADMINISTRATION CHECKLIST EXHIBIT F, CERTIFICATION FOR FEDERAL-AID AGREEMENTS EXHIBIT G, DISADVANTAGED BUSINESS ENTERPRISE EXHIBIT H, LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES EXHIBIT I, FEDERAL-AID AGREEMENT PROVISIONS FOR CONSTRUCTION AGREEMENTS EXHIBIT J, ADDITIONAL FEDERAL REQUIREMENTS EXHIBIT K, FFATA SUPPLEMENTAL FEDERAL PROVISIONS EXHIBIT L, SAMPLE SUBRECIPIENT MONITORING AND RISK ASSESSMENT FORM EXHIBIT M, OMB UNIFORM GUIDANCE FOR FEDERAL AWARDS 1. PARTIES This Agreement is entered into by and between Local Agency named on the Signature and Cover Page for this Agreement (“Local Agency”), and the STATE OF COLORADO acting by and through the State agency named on the Signature and Cover Page for this Agreement (the “State” or “CDOT”). Local Agency and the State agree to the terms and conditions in this Agreement. 2. TERM AND EFFECTIVE DATE A. Effective Date This Agreement shall not be valid or enforceable until the Effective Date, and Agreement Funds shall be expended within the dates shown in Exhibit C for each respective phase (“Phase Performance Period(s)”). The State shall not be bound by any provision of this Agreement before the Effective Date, and shall have no obligation to pay Local Agency for any Work performed or expense incurred before 1) the Effective Date of this original Agreement; 2) before the encumbering document for the respective phase and the official Notice to Proceed for the respective phase; or 3) after the Final Phase Performance Page 32 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 3 of 25 End Date, as shown in Exhibit C. B. Initial Term The Parties’ respective performances under this Agreement shall commence on the Agreement Effective Date shown on the Signature and Cover Page for this Agreement and shall terminate on the date of notice of CDOT final acceptance (“Agreement Expiration Date”) shown on the Signature and Cover Page for this Agreement, unless sooner terminated or further extended in accordance with the terms of this Agreement. C. Early Termination in the Public Interest The State is entering into this Agreement to serve the public interest of the State of Colorado as determined by its Governor, General Assembly, or Courts. If this Agreement ceases to further the public interest of the State, the State, in its discretion, may terminate this Agreement in whole or in part. This subsection shall not apply to a termination of this Agreement by the State for breach by Local Agency, which shall be governed by §14.A.i. i. Method and Content The State shall notify Local Agency of such termination in accordance with §16. The notice shall specify the effective date of the termination and whether it affects all or a portion of this Agreement. ii. Obligations and Rights Upon receipt of a termination notice for termination in the public interest, Local Agency shall be subject to §14.A.i.a iii. Payments If the State terminates this Agreement in the public interest, the State shall pay Local Agency an amount equal to the percentage of the total reimbursement payable under this Agreement that corresponds to the percentage of Work satisfactorily completed and accepted, as determined by the State, less payments previously made. Additionally, if this Agreement is less than 60% completed, as determined by the State, the State may reimburse Local Agency for a portion of actual out-of- pocket expenses, not otherwise reimbursed under this Agreement, incurred by Local Agency which are directly attributable to the uncompleted portion of Local Agency’s obligations, provided that the sum of any and all reimbursement shall not exceed the maximum amount payable to Local Agency hereunder. 3. AUTHORITY Authority to enter into this Agreement exists in the law as follows: A. Federal Authority Pursuant to Title I, Subtitle A, of the “Fixing America’s Surface Transportation Act” (FAST Act) of 2015, and to applicable provisions of Title 23 of the United States Code and implementing regulations at Title 23 of the Code of Federal Regulations, as may be amended, (collectively referred to hereinafter as the “Federal Provisions”), certain federal funds have been and are expected to continue to be allocated for transportation projects requested by Local Agency and eligible under the Surface Transportation Improvement Program that has been proposed by the State and approved by the Federal Highway Administration (“FHWA”). B. State Authority Pursuant to CRS §43-1-223 and to applicable portions of the Federal Provisions, the State is responsible for the general administration and supervision of performance of projects in the Pr ogram, including the administration of federal funds for a Program project performed by a Local Agency under a contract with the State. This Agreement is executed under the authority of CRS §§29-1-203, 43-1-110; 43-1-116, 43-2-101(4)(c) and 43-2-104.5. 4. PURPOSE The purpose of this Agreement is to disburse Federal funds to the Local Agency pursuant to CDOT’s Stewardship Agreement with the FHWA. Page 33 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 4 of 25 5. DEFINITIONS The following terms shall be construed and interpreted as follows: A. “Agreement” means this agreement, including all attached Exhibits, all documents incorporated by reference, all referenced statutes, rules and cited authorities, and any future modifications thereto. B. “Agreement Funds” means the funds that have been appropriated, designated, encumbered, or otherwise made available for payment by the State under this Agreement. C. “Award” means an award by a Recipient to a Subrecipient funded in whole or in part by a Federal Award. The terms and conditions of the Federal Award flow down to the Award unless the terms and conditions of the Federal Award specifically indicate otherwise. D. “Budget” means the budget for the Work described in Exhibit C. E. “Business Day” means any day in which the State is open and conducting business, but shall not include Saturday, Sunday or any day on which the State observes one of the holidays listed in §24 -11-101(1) C.R.S. F. “Consultant” means a professional engineer or designer hired by Local Agency to design the Work Product. G. “Contractor” means the general constructio n contractor hired by Local Agency to construct the Work. H. “CORA” means the Colorado Open Records Act, §§24-72-200.1 et. seq., C.R.S. I. “Effective Date” means the date on which this Agreement is approved and signed by the Colorado State Controller or designee, as shown on the Signature and Cover Page for this Agreement. J. “Evaluation” means the process of examining Local Agency’s Work and rating it based on criteria established in §6, Exhibit A and Exhibit E. K. “Exhibits” means the following exhibits attached to this Agreement: i. Exhibit A, Statement of Work. ii. Exhibit B, Sample Option Letter. iii. Exhibit C, Funding Provisions iv. Exhibit D, Local Agency Resolution v. Exhibit E, Local Agency Contract Administration Checklist vi. Exhibit F, Certification for Federal-Aid Contracts vii. Exhibit G, Disadvantaged Business Enterprise viii. Exhibit H, Local Agency Procedures for Consultant Services ix. Exhibit I, Federal-Aid Contract Provisions for Construction Contracts x. Exhibit J, Additional Federal Requirements xi. Exhibit K, The Federal Funding Accountability and Transparency Act of 2006 (FFATA) Supplemental Federal Provisions xii. Exhibit L, Sample Sub-Recipient Monitoring and Risk Assessment Form xiii. Exhibit M, Supplemental Provisions for Federal Awards Subject to The Office of Management and Budget Uniform Administrative Requirements, Cost principles, and Audit Requirements for Federal Awards (the “Uniform Guidance”) L. “Federal Award” means an award of Federal financial assistance or a cost-reimbursement contract under the Federal Acquisition Requirements by a Federal Awarding Agency to a Recipient. “Federal Award” also means an agreement setting forth the terms and conditions of the Federal Award. The term does not include payments to a contractor or payments to an individual that is a beneficiary of a Federal program. Page 34 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 5 of 25 M. “Federal Awarding Agency” means a Federal agency providing a Federal Award to a Recipient. N. “FHWA” means the Federal Highway Administration, which is one of the twelve administrations under the Office of the Secretary of Transportation at the U.S. Department of Transportation. FHWA provides stewardship over the construction, maintenance and preservation of the Nation’s highways and tunnels. FHWA is the Federal Awarding Agency for the Federal Award which is the subject of this Agreement. O “Goods” means any movable material acquired, produced, or delivered by Local Agency as set forth in this Agreement and shall include any movable material acquired, produced, or delivered by Local Agency in connection with the Services. P. “Incident” means any accidental or deliberate event that results in or constitutes an imminent threat of the unauthorized access or disclosure of State Confidential Information or of the unauthorized modification, disruption, or destruction of any State Records. Q. “Initial Term” means the time period defined in §2.B R. “Notice to Proceed” means the letter issued by the State to the Local Agency stating the date the Local Agency can begin work subject to the conditions of this Agreement. S. “OMB” means the Executive Office of the President, Office of Management and Budget. T. “Oversight” means the term as it is defined in the Stewardship Agreement between CDOT and the FHWA. U. “Party” means the State or Local Agency, and “Parties” means both the State and Local Agency. V. “PII” means personally identifiable information including, without limitation, any information maintained by the State about an individual that can be used to distinguish or trace an in dividual‘s identity, such as name, social security number, date and place of birth, mother‘s maiden name, or biometric records; and any other information that is linked or linkable to an individual, such as medical, educational, financial, and employment information. PII includes, but is not limited to, all information defined as personally identifiable information in §24 -72-501 C.R.S. W. “Recipient” means the Colorado Department of Transportation (CDOT) for this Federal Award. X. “Services” means the services to be performed by Local Agency as set forth in this Agreement, and shall include any services to be rendered by Local Agency in connection with the Goods. Y. “State Confidential Information” means any and all State Records not subject to disclosure under CORA. State Confidential Information shall include, but is not limited to, PII and State personnel records not subject to disclosure under CORA. Z. “State Fiscal Rules” means the fiscal rules promulgated by the Colorado State Controller pursuant to §24-30-202(13)(a). AA. “State Fiscal Year” means a 12 month period beginning on July 1 of each calendar year and ending on June 30 of the following calendar year. If a single calendar year follows the term, then it means the State Fiscal Year ending in that calendar year. BB. “State Purchasing Director” means the position described in the Colorado Procurement Code and its implementing regulations. CC. “State Records” means any and all State data, information, and records, regardless of physical form, including, but not limited to, information subject to disclosure under CORA. DD. “Subcontractor” means third-parties, if any, engaged by Local Agency to aid in performance of the Work. EE. “Subrecipient” means a non-Federal entity that receives a sub-award from a Recipient to carry out part of a Federal program, but does not include an individual that is a beneficiary of such program. A Subrecipient may also be a recipient of other Federal Awards directly from a Federal Awarding Agency. FF. “Uniform Guidance” means the Office of Management and Budget Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, which supersedes requirements from OMB Circulars A-21, A-87, A-110, A-122, A-89, A-102, and A-133, and the Page 35 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 6 of 25 guidance in Circular A-50 on Single Audit Act follow-up. GG. “Work” means the delivery of the Goods and performance of the Services in compliance with CDOT’s Local Agency Manual described in this Agreement. HH. “Work Product” means the tangible and intangible results of the Work, whether finished or unfinished, including drafts. Work Product includes, but is not limited to, documents, text, software (including source code), research, reports, proposals, specifications, plans, notes, studies, data, images, photographs, negatives, pictures, drawings, designs, models, surveys, maps, materials, ideas, concepts, know-how, and any other results of the Work. “Work Product” does not include any material that was developed prior to the Effective Date that is used, without modification, in the performance of the Work. Any other term used in this Agreement that is defined in an Exhibit shall be construed and interpreted as defined in that Exhibit. 6. STATEMENT OF WORK Local Agency shall complete the Work as described in this Agreement and in accordance with the provisions of Exhibit A, and the Local Agency Manual. The State shall have no liability to compensate Local Agency for the delivery of any Goods or the performance of any Services that are not specifically set forth in this Agreement. Work may be divided into multiple phases that have separate periods of performance. The State may not compensate for Work that Local Agency performs outside of its designated phase p erformance period. The performance period of phases, including, but not limited to Design, Construction, Right of Way, Utilities, or Environment phases, are identified in Exhibit C. The State may unilaterally modify Exhibit C from time to time, at its sole discretion, to extend the period of performance for a phase of Work authorized under this Agreement. To exercise this phase performance period extension option, the State will provide written notice to Local Agency in a form substantially equivalent to Exhibit B. The State’s unilateral extension of phase performance periods will not amend or alter in any way the funding provisions or any other terms specified in this Agreement, notwithstanding the options listed under §7.E A. Local Agency Commitments i. Design If the Work includes preliminary design, final design, design work sheets, or special provisions and estimates (collectively referred to as the “Plans”), Local Agency shall ensure that it and its Contractors comply with and are responsible for satisfying the following requirements: a. Perform or provide the Plans to the extent required by the nature of the Work. b. Prepare final design in accordance with the requirements of the latest edition of the American Association of State Highway Transportation Officials (AASHTO) manual or other standard, such as the Uniform Building Code, as approved by the State. c. Prepare provisions and estimates in accordance with the most current version of the State’s Roadway and Bridge Design Manuals and Standard Specifications for Road and Bridge Construction or Local Agency specifications if approved by the State. d. Include details of any required detours in the Plans in order to prevent any interference of the construction Work and to protect the traveling public. e. Stamp the Plans as produced by a Colorado registered professional engineer. f. Provide final assembly of Plans and all other necessary documents. g. Ensure the Plans are accurate and complete. h. Make no further changes in the Plans following the award of the construction contract to Contractor unless agreed to in writing by the Parties. The Plans shall be considered final when approved in writing by CDOT, and when final, they will be deemed incorporated herein. ii. Local Agency Work a. Local Agency shall comply with the requirements of the Americans With Disabilities Act (ADA) 42 U.S.C. § 12101, et. seq., and applicable federal regulations and standards as contained in the document “ADA Accessibility Requirements in CDOT Transportation Page 36 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 7 of 25 Projects”. b. Local Agency shall afford the State ample opportunity to review the Plans and shall make any changes in the Plans that are directed by the State to comply with FHWA requirements. c. Local Agency may enter into a contract with a Consultant to perform all or any po rtion of the Plans and/or construction administration. Provided, however, if federal -aid funds are involved in the cost of such Work to be done by such Consultant, such Consultant contract (and the performance provision of the Plans under the contract) must comply with all applicable requirements of 23 C.F.R. Part 172 and with any procedures implementing those requirements as provided by the State, including those in Exhibit H. If Local Agency enters into a contract with a Consultant for the Work: 1) Local Agency shall submit a certification that procurement of any Consultant contract complies with the requirements of 23 C.F.R. 172.5(1) prior to entering into such Consultant contract, subject to the State’s approval. If not approved by the State, Local Agen cy shall not enter into such Consultant contract. 2) Local Agency shall ensure that all changes in the Consultant contract have prior approval by the State and FHWA and that they are in writing. Immediately after the Consultant contract has been awarded, one copy of the executed Consultant contract and any amendments shall be submitted to the State. 3) Local Agency shall require that all billings under the Consultant contract comply with the State’s standardized billing format. Examples of the billing formats are available from the CDOT Agreements Office. 4) Local Agency (and any Consultant) shall comply with 23 C.F.R. 172.5(b) and (d) and use the CDOT procedures described in Exhibit H to administer the Consultant contract. 5) Local Agency may expedite any CDOT approval of its procurement process and/or Consultant contract by submitting a letter to CDOT from Local Agency’s attorney/authorized representative certifying compliance with Exhibit H and 23 C.F.R. 172.5(b)and (d). 6) Local Agency shall ensure that the Consultant contract complies with the requirements of 49 CFR 18.36(i) and contains the following language verbatim: (a) The design work under this Agreement shall be compatible with the requirements of the contract between Local Agency and the State (which is incorporated herein by this reference) for the design/construction of the project. The State is an intended third - party beneficiary of this agreement for that purpose. (b) Upon advertisement of the project work for construction, the consultant sha ll make available services as requested by the State to assist the State in the evaluation of construction and the resolution of construction problems that may arise during the construction of the project. (c) The consultant shall review the construction Contractor’s shop drawings for conformance with the contract documents and compliance with the provisions of the State’s publication, Standard Specifications for Road and Bridge Construction, in connection with this work. (d) The State, in its sole discretion, may review construction plans, special provisions and estimates and may require Local Agency to make such changes therein as the State determines necessary to comply with State and FHWA requirements. iii. Construction If the Work includes construction, Local Agency shall perform the construction in accordance with the approved design plans and/or administer the construction in accordance with Exhibit E. Such administration shall include Work inspection and testing; approving sources of materials ; performing required plant and shop inspections; documentation of contract payments, testing and inspection activities; preparing and approving pay estimates; preparing, approving and securing the funding for contract modification orders and minor contrac t revisions; processing construction Contractor claims; construction supervision; and meeting the quality control requirements of the FHWA/CDOT Stewardship Agreement, as described in Exhibit E. Page 37 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 8 of 25 a. The State may, after providing written notice of the reason for the suspension to Local Agency, suspend the Work, wholly or in part, due to the failure of Local Agency or its Contractor to correct conditions which are unsafe for workers or for such periods as the State may deem necessary due to unsuitable weather, or for conditions considered unsuitable for the prosecution of the Work, or for any other condition or reason deemed by the State to be in the public interest. b. Local Agency shall be responsible for the following: 1) Appointing a qualified professional engineer, licensed in the State of Colorado, as Local Agency Project Engineer (LAPE), to perform engineering administration. The LAPE shall administer the Work in accordance with this Agreement, the requirements of the construction contract and applicable State procedures, as defined in the CDOT Local Agency Manual (https://www.codot.gov/business/designsupport/bulletins_manuals/2006- local-agency-manual). 2) For the construction Services, advertising the call for bids, following its approval by the State, and awarding the construction contract(s) to the lowest responsible bidder(s). (a) All Local Agency’s advertising and bid awards pursuant to this Agreement shall comply with applicable requirements of 23 U.S.C. §112 and 23 C.F.R. Parts 633 and 635 and C.R.S. § 24-92-101 et seq. Those requirements include, without limitation, that Local Agency and its Contractor(s) incorporate Form 1273 (Exhibit I) in its entirety, verbatim, into any subcontract(s) for Services as terms and conditions thereof, as required by 23 C.F.R. 633.102(e). (b) Local Agency may accept or reject the proposal of the apparent low bidder for Work on which competitive bids have been received. Local Agency must accept or reject such bids within 3 working days after they are publicly opened. (c) If Local Agency accepts bids and makes awards that exceed the amount of available Agreement Funds, Local Agency shall provide the additional funds necessary to complete the Work or not award such bids. (d) The requirements of §6.A.iii.b.2 also apply to any advertising and bid awards made by the State. (e) The State (and in some cases FHWA) must approve in advance all Force Account Construction, and Local Agency shall not initiate any such Services until the State issues a written Notice to Proceed. iv. Right of Way (ROW) and Acquisition/Relocation a. If Local Agency purchases a ROW for a State highway, including areas of influence, Local Agency shall convey the ROW to CDOT promptly upon the completion of the project/construction. b. Any acquisition/relocation activities shall comply with all applicable federal and State statutes and regulations, including but not limited to, the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, the Uniform Relocation Assistance and Real Property Acquisition Policies for Federal and Federally Assisted Programs, as amended (49 C.F.R. Part 24), CDOT’s Right of Way Manual, and CDOT’s Policy and Procedural Directives. c. The Parties’ respective responsibilities for ensuring compliance with acquisition, relocation and incidentals depend on the level of federal participation as detailed in CDOT’s Right of Way Manual (located at http://www.codot.gov/business/manuals/right-of-way); however, the State always retains oversight responsibilities. d. The Parties’ respective responsibilities at each level of federal participation in CDOT’s Right of Way Manual, and the State’s reimbursement of Local Agency costs will be determined pursuant the following categories: 1) Right of way acquisition (3111) for federal participation and non-participation; 2) Relocation activities, if applicable (3109); 3) Right of way incidentals, if applicable (expenses incidental to acquisition/relocation of right of way – 3114). Page 38 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 9 of 25 v. Utilities If necessary, Local Agency shall be responsible for obtaining the proper clearance or approval from any utility company that may become involved in the Work. Prior to the Work being advertised for bids, Local Agency shall certify in writing to the State that all such clearances have been obtained. vi. Railroads If the Work involves modification of a railroad company’s facilities and such modification will be accomplished by the railroad company, Local Agency shall make timely application to the Public Utilities Commission (“PUC”) requesting its order providing for the installation of the proposed improvements. Local Agency shall not proceed with that part of the Work before obtaining the PUC’s order. Local Agency shall also establish contact with the railroad company involved for the purpose of complying with applicable provisions of 23 C.F.R. 646, subpart B, concerning federal - aid projects involving railroad facilities, and: a. Execute an agreement with the railroad company setting out what work is to be accomplished and the location(s) thereof, and which costs shall be eligible for federal participation. b. Obtain the railroad’s detailed estimate of the cost of the Work. c. Establish future maintenance responsibilities for the proposed installation. d. Proscribe in the agreement the future use or dispositions of the proposed improvements in the event of abandonment or elimination of a grade crossing. e. Establish future repair and/or replacement responsibilities, as between the railroad company and the Local Agency, in the event of accidental destruction or damage to the installation. vii. Environmental Obligations Local Agency shall perform all Work in accordance with the requirements of current federal and State environmental regulations, including the National Environmental Polic y Act of 1969 (NEPA) as applicable. viii. Maintenance Obligations A separate maintenance agreement, executed by the Parties, shall detail the maintenance and operations responsibilities for the Work constructed under this Contract. The Work constructed under this Contract shall be maintained in a manner satisfactory to the State and FHWA, and the Responsible Party shall provide for such maintenance and operations obligations each year. Such maintenance and operations shall be conducted in accordance with all applicable statutes, ordinances and regulations pertaining to maintaining such improvements. The State and FHWA may make periodic inspections to verify that such improvements are being adequately maintained. ix. Monitoring Obligations Local Agency shall respond in a timely manner to and participate fully with the monitoring activities described in §7.F.vi. B. State’s Commitments i. The State will perform a final project inspection of the Work as a quality control/assurance activity. When all Work has been satisfactorily completed, the State will sign the FHWA Form 1212. ii. Notwithstanding any consents or approvals given by the State for the Plans, the State shall not be liable or responsible in any manner for the structural design, details or construction of any Work constituting major structures designed by, or that are the responsibility of, Local Agency, as identified in Exhibit E. 7. PAYMENTS A. Maximum Amount Payments to Local Agency are limited to the unpaid, obligated balance of the Agreement Funds set forth in Exhibit C. The State shall not pay Local Agency any amount under this Agreement that exceeds the Agreement Maximum set forth in Exhibit C. B. Payment Procedures Page 39 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 10 of 25 i. Invoices and Payment a. The State shall pay Local Agency in the amounts and in accordance with conditions set forth in Exhibit C. b. Local Agency 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 Local Agency 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 Local Agency 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 the Agreement. ii. Interest Amounts not paid by the State within 45 days after the State’s acceptance of the invoice shall bear interest on the unpaid balance beginning on the 46th 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. Local Agency 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 Local Agency disputes any calculation, determination, or amount of any payment, Local Agency shall notify the State in writing of its dispute within 30 days following the earlier to occur of Local Agency’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 Local Agency 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 Local Agency beyond the current State Fiscal Year is contingent on the appropriation and continuing availability of Agreement 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 Agreement Funds, the State’s obligation to pay Local Agency 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 Agreement Funds, and the State’s liability for such payments shall be limited to the amount remaining of such Agreement Funds. If State, federal or other funds are no t 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.C v. Erroneous Payments The State may recover, at the State’s discretion, payments made to Local Agency in error for any reason, including, but not limited to, overpayments or improper payments, and unexpended or excess funds received by Local Agency. The State may recover such payments by deduction from subsequent payments under this Agreement, deduction from any payment due under any other contracts, grants or agreements between the State and Local Agency, or by any other appropriate method for collecting debts owed to the State. The close out of a Federal Award does not affect the right of FHWA or the State to disallow costs and recover funds on the basis of a later audit or other Page 40 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 11 of 25 review. Any cost disallowance recovery is to be made within the Record Retention Period (as defined below in §9.A.). C. Matching Funds Local Agency shall provide matching funds as provided in §7.A. and Exhibit C. Local Agency shall have raised the full amount of matching funds prior to the Effective Date and shall report to the State regarding the status of such funds upon request. Local Agency’s obligation to pay all or any part of any matching funds, whether direct or contingent, only extend to funds duly and lawfully appropriated for the purposes of this Agreement by the authorized representatives of Local Agency and paid into Local Agency’s treasury. Local Agency represents to the State that the amount designa ted “Local Agency Matching Funds” in Exhibit C has been legally appropriated for the purpose of this Agreement by its authorized representatives and paid into its treasury. Local Agency may evidence such obligation by an appropriate ordinance/resolution or other authority letter expressly authorizing Local Agency to enter into this Agreement and to expend its match share of the Work. A copy of any such ordinance/resolution or authority letter is attached hereto as Exhibit D. Local Agency does not by this Agreement irrevocably pledge present cash reserves for payments in future fiscal years, and this Agreement is not intended to create a multiple-fiscal year debt of Local Agency. Local Agency shall not pay or be liable for any claimed interest, late charges, fees, taxes, or penalties of any nature, except as required by Local Agency’s laws or policies. D. Reimbursement of Local Agency Costs The State shall reimburse Local Agency’s allowable costs, not exceeding the maximum total amount described in Exhibit C and §7. The applicable principles described in 2 C.F.R. Part 200 shall govern the State’s obligation to reimburse all costs incurred by Local Agency and submitted to the State for reimbursement hereunder, and Local Agency shall comply with all such princip les. The State shall reimburse Local Agency for the federal-aid share of properly documented costs related to the Work after review and approval thereof, subject to the provisions of this Agreement and Exhibit C. Local Agency costs for Work performed prior to the Effective Date shall not be reimbursed absent specific allowance of pre-award costs and indication that the Federal Award funding is retroactive. Local Agency costs for Work performed after any Performance Period End Date for a respective phase of the Work, is not reimbursable. Allowable costs shall be: i. Reasonable and necessary to accomplish the Work and for the Goods and Services provided. ii. Actual net cost to Local Agency (i.e. the price paid minus any items of value received by Local Agency that reduce the cost actually incurred). E. Unilateral Modification of Agreement Funds Budget by State Option Letter The State may, at its discretion, issue an “Option Letter” to Local Agency to add or modify Work phases in the Work schedule in Exhibit C if such modifications do not increase total budgeted Agreement Funds. Such Option Letters shall amend and update Exhibit C, Sections 2 or 4 of the Table, and sub- sections B and C of the Exhibit C. Option Letters shall not be deemed valid until signed by the State Controller or an authorized delegate. Modification of Exhibit C by unilateral Option Letter is permitted only in the specific scenarios listed below. The State will exercise such options by providing Local Agency a fully executed Option Letter, in a form substantially equivalent to Exhibit B. Such Option Letters will be incorporated into this Agreement. i. Option to Begin a Phase and/or Increase or Decrease the Encumbrance Amount The State may require by Option Letter that Local Agency begin a new Work phase that may include Design, Construction, Environmental, Utilities, ROW Incidentals or Miscellaneous Work (but may not include Right of Way Acquisition/Relocation or Railroads) as detailed in Exhibit A. Such Option Letters may not modify the other terms and conditions stated in this Agreement, and must decrease the amount budgeted and encumbered for one or more other Work phases so that the total amount of budgeted Agreement Funds remains the same. The State may also issue a unilateral Option Letter to simultaneously increase and decrease the total encumbrance amount of two or more existing Work phases, as long as the total amount of budgeted Agreement Funds remains the same, replacing the original Agreement Funding exhibit (Exhibit C) with an updated Exhibit C-1 (with subsequent exhibits labeled C-2, C-3, etc.). Page 41 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 12 of 25 ii. Option to Transfer Funds from One Phase to Another Phase. The State may require or permit Local Agency to transfer Agreement Funds from one Work phase (Design, Construction, Environmental, Utilities, ROW Incidentals or Miscellaneous) to another phase as a result of changes to State, federal, and local match funding. In such case, the original funding exhibit (Exhibit C) will be replaced with an updated Exhibit C-1 (with subsequent exhibits labeled C-2, C-3, etc.) attached to the Option Letter. The Agreement Funds transferred from one Work phase to another are subject to the same terms and conditions stated in the original Agreement with the total budgeted Agreement Funds remaining the same. The State may unilaterally exercise this option by providing a fully executed Option Letter to Local Agency within thirty (30) days before the initial targeted start date of the Work phase, in a form substantially equivalent to Exhibit B. iii. Option to Exercise Options i and ii. The State may require Local Agency to add a Work phase as detailed in Exhibit A, and encumber and transfer Agreement Funds from one Work phase to another. The original funding exhibit (Exhibit C) in the original Agreement will be replaced with an updated Exhibit C-1 (with subsequent exhibits labeled C-2, C-3, etc.) attached to the Option Letter. The addition of a Work phase and encumbrance and transfer of Agreement Funds are subject to the same terms and conditions stated in the original Agreement with the total budgeted Agreement Funds remaining the same. The State may unilaterally exercise this option by providing a fully executed Option Letter to Local Agency within 30 days before the initial targeted start date of the Work phase, in a form substantially equivalent to Exhibit B. iv. Option to Update a Work Phase Performance Period and/or modify information required under the OMB Uniform Guidance, as outlined in Exhibit C. The State may update any information contained in Exhibit C, Sections 2 and 4 of the Table, and sub-sections B and C of the Exhibit C. F. Accounting Local Agency shall establish and maintain accounting systems in accordance with generally accepted accounting standards (a separate set of accounts, or as a separate and integral part of its current accounting scheme). Such accounting systems shall, at a minimum, provide as follows: i. Local Agency Performing the Work If Local Agency is performing the Work, it shall document all allowable costs, including any approved Services contributed by Local Agency or subcontractors, using payrolls, time records, invoices, contracts, vouchers, and other applicable records. ii. Local Agency-Checks or Draws Checks issued or draws made by Local Agency shall be made or drawn against properly signed vouchers detailing the purpose thereof. Local Agency shall keep on file all checks, payrolls, invoices, contracts, vouchers, orders, and other accounting documents in the office of Local Agency, clearly identified, readily accessible, and to the extent feasible, separate and apart from all other Work documents. iii. State-Administrative Services The State may perform any necessary administrative support services required hereunder. Local Agency shall reimburse the State for the costs of any such services from the budgeted Agreement Funds as provided for in Exhibit C. If FHWA Agreement Funds are or become unavailable, or if Local Agency terminates this Agreement prior to the Work being approved by the State or otherwise completed, then all actual incurred costs of such services and assistance provided by the State shall be reimbursed to the State by Local Agency at its sole expense. iv. Local Agency-Invoices Local Agency’s invoices shall describe in detail the reimbursable costs incurre d by Local Agency for which it seeks reimbursement, the dates such costs were incurred and the amounts thereof, and Local Agency shall not submit more than one invoice per month. Page 42 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 13 of 25 v. Invoicing Within 60 Days The State shall not be liable to reimburse Local Agency for any costs invoiced more than 60 days after the date on which the costs were incurred, including costs included in Local Agency’s final invoice. The State may withhold final payment to Local Agency at the State’s sole discretion until completion of final audit. Any costs incurred by Local Agency that are not allowable under 2 C.F.R. Part 200 shall be Local Agency’s responsibility, and the State will deduct such disallowed costs from any payments due to Local Agency. The State will not reimburse co sts for Work performed after the Performance Period End Date for a respective Work phase. The State will not reimburse costs for Work performed prior to Performance Period End Date, but for which an invoice is received more than 60 days after the Performance Period End Date. vi. Risk Assessment & Monitoring Pursuant to 2 C.F.R. 200.331(b), – CDOT will evaluate Local Agency’s risk of noncompliance with federal statutes, regulations, and terms and conditions of this Agreement. Local Agency shall complete a Risk Assessment Form (Exhibit L) when that may be requested by CDOT. The risk assessment is a quantitative and/or qualitative determination of the potential for Local Agency’s non-compliance with the requirements of the Federal Award. The risk assessment will evaluate some or all of the following factors: 1. Experience: Factors associated with the experience and history of the Subrecipient with the same or similar Federal Awards or grants. 2. Monitoring/Audit: Factors associated with the results of the Subrecipient’s previous audits or monitoring visits, including those performed by the Federal Awarding Agency, when the Subrecipient also receives direct federal funding. Include audit results if Subrecipient receives single audit, where the specific award being assessed was selected as a major program. 3. Operation: Factors associated with the significant aspects of the Subrecipient’s operations, in which failure could impact the Subrecipient’s ability to perform and account for the contracted goods or services. 4. Financial: Factors associated with the Subrecipient’s financial stability and ability to comply with financial requirements of the Federal Award. 5. Internal Controls: Factors associated with safeguarding assets and resources, deterring and detecting errors, fraud and theft, ensuring accuracy and completeness of accounting data, producing reliable and timely financial and management information, and ensuring adherence to its policies and plans. 6. Impact: Factors associated with the potential impact of a Subrecipient’s non-compliance to the overall success of the program objectives. 7. Program Management: Factors associated with processes to manage critical personnel, approved written procedures, and knowledge of rules and regulations regarding federal -aid projects. Following Local Agency’s completion of the Risk Assessment Tool (Exhibit L), CDOT will determine the level of monitoring it will apply to Local Agency’s performance of the Work. This risk assessment may be re-evaluated after CDOT begins performing monitoring acti vities. G. Close Out Local Agency shall close out this Award within 90 days after the Final Phase Performance End Date. Close out requires Local Agency’s submission to the State of all deliverables defined in this Agreement, and Local Agency’s final reimbursement request or invoice. The State will withhold 5% of allowable costs until all final documentation has been submitted and accepted by the State as substantially complete. If FHWA has not closed this Federal Award within 1 year and 90 days after the Final Phase Performance End Date due to Local Agency’s failure to submit required documentation, then Local Agency may be prohibited from applying for new Federal Awards through the State until such documentation is submitted and accepted. 8. REPORTING - NOTIFICATION A. Quarterly Reports In addition to any reports required pursuant to §19 or pursuant to any exhibit, for any contract having a Page 43 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 14 of 25 term longer than 3 months, Local Agency 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 (5) Business Days following the end of each calendar quarter or at such time as otherwise specified by the State. B. Litigation Reporting If Local Agency is served with a pleading or other document in connection with an action before a court or other administrative decision making body, and such pleading or document relates to this Agreement or may affect Local Agency’s ability to perform its obligations under this Agreement, Local Agency shall, within 10 days after being served, notify the State of such action and deliver copies of such pleading or document to the State’s principal representative identified in §16. C. Performance and Final Status Local Agency shall submit all financial, performance and other reports to the State no later than 60 calendar days after the Final Phase Performance End Date or sooner termination of this Agreement, containing an Evaluation of Subrecipient’s performance and the final status of Subrecipient’s obligations hereunder. D. Violations Reporting Local Agency must disclose, in a timely manner, in writing to the State and FHWA, all violations of federal or State criminal law involving fraud, bribery, or gratuity violations potentially affecting the Federal Award. Penalties for noncompliance may include suspension or debarment (2 CFR Part 180 and 31 U.S.C. 3321). 9. LOCAL AGENCY RECORDS A. Maintenance Local Agency shall make, keep, maintain, and allow inspection and monitoring by the State of a complete file of all records, documents, communications, notes and other written materials, elect ronic media files, and communications, pertaining in any manner to the Work or the delivery of Services (including, but not limited to the operation of programs) or Goods hereunder. Local Agency shall maintain such records for a period (the “Record Retention Period”) of three years following the date of submission to the State of the final expenditure report, or if this Award is renewed quarterly or annually, from the date of the submission of each quarterly or annual report, respectively. If any litigation , claim, or audit related to this Award starts before expiration of the Record Retention Period, the Record Retention Period shall extend until all litigation, claims, or audit findings have been resolved and final action taken by the State or Federal Awarding Agency. The Federal Awarding Agency, a cognizant agency for audit, oversight or indirect costs, and the State, may notify Local Agency in writing that the Record Retention Period shall be extended. For records for real property and equipment, the Reco rd Retention Period shall extend three years following final disposition of such property. B. Inspection Local Agency shall permit the State to audit, inspect, examine, excerpt, copy, and transcribe Local Agency Records during the Record Retention Period. Local Agency shall make Local Agency Records available during normal business hours at Local Agency’s office or place of business, or at other mutually agreed upon times or locations, upon no fewer than 2 Business Days’ notice from the State, unless the State determines that a shorter period of notice, or no notice, is necessary to protect the interests of the State. C. Monitoring The State will monitor Local Agency’s performance of its obligations under this Agreement using procedures as determined by the State. The State shall monitor Local Agency’s performance in a manner that does not unduly interfere with Local Agency’s performance of the Work. D. Final Audit Report Local Agency shall promptly submit to the State a copy of any final audit report of a n audit performed Page 44 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 15 of 25 on Local Agency’s records that relates to or affects this Agreement or the Work, whether the audit is conducted by Local Agency or a third party. 10. CONFIDENTIAL INFORMATION-STATE RECORDS A. Confidentiality Local Agency shall hold and maintain, and cause all Subcontractors to hold and maintain, any and all State Records that the State provides or makes available to Local Agency for the sole and exclusive benefit of the State, unless those State Records are otherwise publicly available at the time of disclosure or are subject to disclosure by Local Agency under CORA. Local Agency shall not, without prior written approval of the State, use for Local Agency’s own benefit, publish, copy, or otherwise disclose to any third party, or permit the use by any third party for its benefit or to the detriment of the State, any State Records, except as otherwise stated in this Agreement. Local Agency shall provide for the security of all State Confidential Information in accordance with all policies p romulgated by the Colorado Office of Information Security and all applicable laws, rules, policies, publications, and guidelines. Local Agency shall immediately forward any request or demand for State Records to the State’s principal representative. B. Other Entity Access and Nondisclosure Agreements Local Agency may provide State Records to its agents, employees, assigns and Subcontractors as necessary to perform the Work, but shall restrict access to State Confidential Information to those agents, employees, assigns and Subcontractors who require access to perform their obligations under this Agreement. Local Agency shall ensure all such agents, employees, assigns, and Subcontractors sign nondisclosure agreements with provisions at least as protective as those in this Agreement, and that the nondisclosure agreements are in force at all times the agent, employee, assign or Subcontractor has access to any State Confidential Information. Local Agency shall provide copies of those signed nondisclosure agreements to the State upon request. C. Use, Security, and Retention Local Agency shall use, hold and maintain State Confidential Information in compliance with any and all applicable laws and regulations in facilities located within the United States, and sha ll maintain a secure environment that ensures confidentiality of all State Confidential Information wherever located. Local Agency shall provide the State with access, subject to Local Agency’s reasonable security requirements, for purposes of inspecting and monitoring access and use of State Confidential Information and evaluating security control effectiveness. Upon the expiration or termination of this Agreement, Local Agency shall return State Records provided to Local Agency or destroy such State Recor ds and certify to the State that it has done so, as directed by the State. If Local Agency is prevented by law or regulation from returning or destroying State Confidential Information, Local Agency warrants it will guarantee the confidentiality of, and cease to use, such State Confidential Information. D. Incident Notice and Remediation If Local Agency becomes aware of any Incident, it shall notify the State immediately and cooperate with the State regarding recovery, remediation, and the necessity to involve law enforcement, as determined by the State. Unless Local Agency can establish that none of Local Agency or any of its agents, employees, assigns or Subcontractors are the cause or source of the Incident, Local Agency shall be responsible for the cost of notifying each person who may have been impacted by the Incident. After an Incident, Local Agency shall take steps to reduce the risk of incurring a similar type of Incident in the future as directed by the State, which may include, but is not limited to, developing and implementing a remediation plan that is approved by the State at no additional cost to the State. 11. CONFLICTS OF INTEREST A. Actual Conflicts of Interest Local Agency shall not engage in any business or activities, or maintain any relation ships that conflict in any way with the full performance of the obligations of Local Agency under this Agreement. Such a conflict of interest would arise when a Local Agency or Subcontractor’s employee, officer or agent were to offer or provide any tangible personal benefit to an employee of the State, or any member of his or her immediate family or his or her partner, related to the award of, entry into or management or oversight of this Agreement. Officers, employees and agents of Local Agency may neither solicit nor accept Page 45 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 16 of 25 gratuities, favors or anything of monetary value from contractors or parties to subcontracts. B. Apparent Conflicts of Interest Local Agency acknowledges that, with respect to this Agreement, even the appearance of a conflict of interest shall be harmful to the State’s interests. Absent the State’s prior written approval, Local Agency shall refrain from any practices, activities or relationships that reasonably appear to be in conflict with the full performance of Local Agency’s obligations under this Agreement. C. Disclosure to the State If a conflict or the appearance of a conflict arises, or if Local Agency is uncertain whether a conflict or the appearance of a conflict has arisen, Local Agency shall submit to the State a disclosure statement setting forth the relevant details for the State’s consideration. Failure to promptly submit a disclosure statement or to follow the State’s direction in regard to the actual or apparent conflict constitutes a breach of this Agreement. 12. INSURANCE Local Agency shall obtain and maintain, and ensure that each Subcontractor shall obtain and 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 with an AM Best rating of A-VIII or better. A. Local Agency Insurance Local Agency is a "public entity" within the meaning of the Colorado Governmental Immunity Act, §24 - 10-101, et seq., C.R.S. (the “GIA”) and shall maintain at all times during the term of this Agreement such liability insurance, by commercial policy or self-insurance, as is necessary to meet its liabilities under the GIA. B. Subcontractor Requirements Local Agency shall ensure that each Subcontractor that is a public entity within the meaning of the GIA, maintains at all times during the terms of this Agreement, such liability insurance, by commercial policy or self-insurance, as is necessary to meet the Subcontractor’s obligations under the GIA. Local Agency shall ensure that each Subcontractor that is not a public entity within the meaning of the GIA, maintains at all times during the terms of this Agreement all of the following insurance policies: i. Workers’ Compensation Workers’ compensation insurance as required by state statute, and employers’ liability insurance covering all Local Agency or Subcontractor employees acting within the course and scope of their employment. ii. General Liability Commercial general liability insurance written on an Insurance Services Office occurrence form, covering premises operations, fire damage, independent contractors, products and completed operations, blanket contractual liability, personal injury, and advertising liability with mi nimum limits as follows: a. $1,000,000 each occurrence; b. $1,000,000 general aggregate; c. $1,000,000 products and completed operations aggregate; and d. $50,000 any 1 fire. iii. Automobile Liability Automobile liability insurance covering any auto (including owned, hired and non-owned autos) with a minimum limit of $1,000,000 each accident combined single limit. iv. Protected Information Liability insurance covering all loss of State Confidential Information, such as PII, PHI, PCI, Tax Information, and CJI, and claims based on alleged violations of privacy rights through improper use or disclosure of protected information with minimum limits as follows: Page 46 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 17 of 25 a. $1,000,000 each occurrence; and b. $2,000,000 general aggregate. v. Professional Liability Insurance Professional liability insurance covering any damages caused by an error, omission or any negligent act with minimum limits as follows: a. $1,000,000 each occurrence; and b. $1,000,000 general aggregate. vi. Crime Insurance Crime insurance including employee dishonesty coverage with minimum limits as follows: a. $1,000,000 each occurrence; and b. $1,000,000 general aggregate. C. Additional Insured The State shall be named as additional insured on all commercial general liab ility policies (leases and construction contracts require additional insured coverage for completed operations) required of Local Agency and Subcontractors. In the event of cancellation of any commercial general liability policy, the carrier shall provide at least 10 days prior written notice to CDOT. D. Primacy of Coverage Coverage required of Local Agency and each Subcontractor shall be primary over any insurance or self- insurance program carried by Local Agency or the State. E. Cancellation All commercial insurance policies shall include provisions preventing cancellation or non -renewal, except for cancellation based on non-payment of premiums, without at least 30 days prior notice to Local Agency and Local Agency shall forward such notice to the State in accordance with §16 within 7 days of Local Agency’s receipt of such notice. F. Subrogation Waiver All commercial insurance policies secured or maintained by Local Agency or its Subcontractors in relation to this Agreement shall include clauses stating that each carrier shall waive all rights of recovery under subrogation or otherwise against Local Agency or the State, its agencies, institutions, organizations, officers, agents, employees, and volunteers. G. Certificates For each commercial insurance plan provided by Local Agency under this Agreement, Local Agency shall provide to the State certificates evidencing Local Agency’s insurance coverage required in this Agreement within 7 Business Days following the Effective Date. Local Agency shall provide to the State certificates evidencing Subcontractor insurance coverage required under this Agreement within 7 Business Days following the Effective Date, except that, if Local Agency’s subcontract is not in effect as of the Effective Date, Local Agency shall provide to the State certificates showing Subcontractor insurance coverage required under this Agreement within 7 Business Days following Local Agency’s execution of the subcontract. No later than 15 days before the expiration date of Local Agency’s or any Subcontractor’s coverage, Local Agency shall deliver to the State certificates of insurance evidencing renewals of coverage. At any other time during the term of this Agreement, upon request by the State, Local Agency shall, within 7 Business Days following the request by the State, supply to the State evidence satisfactory to the State of compliance with the provisions of this §12. 13. BREACH A. Defined The failure of a Party to perform any of its obligations in accordance with this Agreement, in whole or in part or in a timely or satisfactory manner, shall be a breach. The institution of proceedings under any bankruptcy, insolvency, reorganization or similar law, by or against Local Agency, or the appointment of a receiver or similar officer for Local Agency or any of its property, which is not vacated or fully Page 47 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 18 of 25 stayed within 30 days after the institution of such proceeding, shall also constitute a breach. B. Notice and Cure Period In the event of a breach, the aggrieved Party shall give written notice of breach to the other Party. If the notified Party does not cure the breach, at its sole expense, within 30 days after the delivery of written notice, the Party may exercise any of the remedies as described in §14 for that Party. Notwithstanding any provision of this Agreement to the contrary, the State, in its discretion, need not provide notice or a cure period and may immediately terminate this Agreement i n whole or in part or institute any other remedy in the Agreement in order to protect the public interest of the State. 14. REMEDIES A. State’s Remedies If Local Agency is in breach under any provision of this Agreement and fails to cure such breach, the State, following the notice and cure period set forth in §13.B, shall have all of the remedies listed in this §14.A. in addition to all other remedies set forth in this Agreement or at law. The State may exercise any or all of the remedies available to it, in its discretion, concurrently or consecutively. i. Termination for Breach In the event of Local Agency’s uncured breach, the State may terminate this entire Agreement or any part of this Agreement. Local Agency shall continue performance of this Agreement to the extent not terminated, if any. a. Obligations and Rights To the extent specified in any termination notice, Local Agency shall not incur further obligations or render further performance past the effective date of such notice, and shall terminate outstanding orders and subcontracts with third parties. However, Local Agency shall complete and deliver to the State all Work not cancelled by the termination notice, and may incur obligations as necessary to do so within this Agreement’s terms. At the request of the State, Local Agency shall assign to the State all of Local Agency's rights, title, and interest in and to such terminated orders or subcontracts. Upon termination, Local Agency shall take timely, reasonable and necessary action to protect and pres erve property in the possession of Local Agency but in which the State has an interest. At the State’s request, Local Agency shall return materials owned by the State in Local Agency’s possession at the time of any termination. Local Agency shall deliver all completed Work Product and all Work Product that was in the process of completion to the State at the State’s request. b. Payments Notwithstanding anything to the contrary, the State shall only pay Local Agency for accepted Work received as of the date of termination. If, after termination by the State, the State agrees that Local Agency was not in breach or that Local Agency's action or inaction was excusable, such termination shall be treated as a termination in the public interest, and the rights and obligations of the Parties shall be as if this Agreement had been terminated in the public interest under §2.C. c. Damages and Withholding Notwithstanding any other remedial action by the State, Local Agency shall remain liable to the State for any damages sustained by the State in connection with any breach by Local Agency, and the State may withhold payment to Local Agency for the purpose of mitigating the State’s damages until such time as the exact amount of damages due to the State from Local Agency is determined. The State may withhold any amount that may be due Local Agency as the State deems necessary to protect the State against loss including, without limitation, loss as a result of outstanding liens and excess costs incurred by the State in procuring from third parties replacement Work as cover. ii. Remedies Not Involving Termination The State, in its discretion, may exercise one or more of the following additional remedies: a. Suspend Performance Suspend Local Agency’s performance with respect to all or any portion of the Work pending Page 48 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 19 of 25 corrective action as specified by the State without entitling Local Agency to an adjustment in price or cost or an adjustment in the performance schedule. Local Agency shall promptly cease performing Work and incurring costs in accordance with the State’s directive, and the State shall not be liable for costs incurred by Local Agency after the suspension of performance. b. Withhold Payment Withhold payment to Local Agency until Local Agency corrects its Work. c. Deny Payment Deny payment for Work not performed, or that due to Local Agency’s actions or inactions, cannot be performed or if they were performed are reasonably of no value to the state; provided, that any denial of payment shall be equal to the value of the obligations not performed. d. Removal Demand immediate removal from the Work of any of Local Agency’s employees, agents, or Subcontractors from the Work whom the State deems incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable or whose continued relation to this Agreement is deemed by the State to be contrary to the public interest or the State’s best interest. e. Intellectual Property If any Work infringes a patent, copyright, trademark, trade secret, or other intellectual property right, Local Agency shall, as approved by the State (a) secure that right to use such Work for the State or Local Agency; (b) replace the Work with noninfringing Work or modify the Work so that it becomes noninfringing; or, (c) remove any infringing Work and refund the amount paid for such Work to the State. B. Local Agency’s Remedies If the State is in breach of any provision of this Agreement and does not cure such breach, Local Agency, following the notice and cure period in §13.B and the dispute resolution process in §15 shall have all remedies available at law and equity. 15. DISPUTE RESOLUTION A. Initial Resolution Except as herein specifically provided otherwise, disputes concerning the performance of this Agreement which cannot be resolved by the designated Agreement representatives shall be referred in writing to a senior departmental management staff member designated by the State and a senior manager designated by Local Agency for resolution. B. Resolution of Controversies If the initial resolution described in §15.A fails to resolve the dispute within 10 Business Days, Contractor shall submit any alleged breach of this Contract by the State to the Procurement Official of CDOT as described in §24-101-301(30), C.R.S. for resolution in accordance with the provisions of §§24- 106-109, 24-109-101.1, 24-109-101.5, 24-109-106, 24-109-107, 24-109-201 through 24-109-206, and 24-109-501 through 24-109-505, C.R.S., (the “Resolution Statutes”), except that if Contractor wishes to challenge any decision rendered by the Procurement Official, Contractor’s challenge shall be an appeal to the executive director of the Department of Personnel and Administration, or their delegate, under the Resolution Statutes before Contractor pursues any further action as permitted by such statutes. Except as otherwise stated in this Section, all requirements of the Resolution Statutes shall apply including, without limitation, time limitations. 16. NOTICES AND REPRESENTATIVES Each individual identified below shall be the principal representative of the designating Party. All notices required or permitted to be given under this Agreement shall be in writing, and shall be delivered (i) by hand with receipt required, (ii) by certified or registered mail to such Party’s principal representative at the address set forth below or (iii) as an email with read receipt requested to the principal representative at the email address, if any, set forth below. If a Party delivers a notice to another through email and the email is undeliverable, then, unless the Party has been provided with an alternate email contact, the Party delivering the notice shall deliver the notice by hand with receipt required or by certified or registered mail to such Party’s principal representative at the address set forth below. Either Party may change its principal representative or principal representative Page 49 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 20 of 25 contact information by notice submitted in accordance with this §16 without a formal amendment to this Agreement. Unless otherwise provided in this Agreement, notices shall be effective upon delivery of the written notice. For the State Colorado Department of Transportation (CDOT) Nick Cheng, Project Manager Region 1 2829 W. Howard Place Denver, CO 80204 720-561-1346 hsu-kun.cheng@state.co.us For the Local Agency City of Englewood Jacob Warren, Project Manager 1000 Englewood Parkway Englewood, CO 80110-2373 303-903-0766 jwarren@englewoodco.gov 17. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION A. Work Product Local Agency assigns to the State and its successors and assigns, the entire right, title, and interest in and to all causes of action, either in law or in equity, for past, present, or future infringement of intellectual property rights related to the Work Product and all works based on, derived from, or incorporating the Work Product. Whether or not Local Agency is under contract with the State at the time, Local Agency shall execute applications, assignments, and other documents, and shall render all other reasonable assistance requested by the State, to enable the State to secure patents, copyrights, licenses and other intellectual property rights related to the Work Product. The Parties intend the Work Product to be works made for hire. i. Copyrights To the extent that the Work Product (or any portion of the Work Product) would not be considered works made for hire under applicable law, Local Agency hereby assigns to the State, the entire right, title, and interest in and to copyrights in all Work Product and all works based upon, derived from, or incorporating the Work Product; all copyright applications, registrations, extensions, or renewals relating to all Work Product and all works based upon, derived from, or incorporating the Work Product; and all moral rights or similar rights with respect to the Work Product throughout the world. To the extent that Local Agency cannot make any of the assignments required by this section, Local Agency hereby grants to the State a perpetual, irrevocable, royalty-free license to use, modify, copy, publish, display, perform, transfer, distribute, sell, and create derivative works of the Work Product and all works based upon, derived from, or incorporating the Work Product by all means and methods and in any format no w known or invented in the future. The State may assign and license its rights under this license. ii. Patents In addition, Local Agency grants to the State (and to recipients of Work Product distributed by or on behalf of the State) a perpetual, worldwide, no-charge, royalty-free, irrevocable patent license to make, have made, use, distribute, sell, offer for sale, import, transfer, and otherwise utilize, operate, modify and propagate the contents of the Work Product. Such license applies only to those p atent claims licensable by Local Agency that are necessarily infringed by the Work Product alone, or by the combination of the Work Product with anything else used by the State. Page 50 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 21 of 25 B. Exclusive Property of the State Except to the extent specifically provided elsewhere in this Agreement, any pre-existing State Records, State software, research, reports, studies, photographs, negatives, or other documents, drawings, models, materials, data, and information shall be the exclusive property of the State (collectiv ely, “State Materials”). Local Agency shall not use, willingly allow, cause or permit Work Product or State Materials to be used for any purpose other than the performance of Local Agency’s obligations in this Agreement without the prior written consent of the State. Upon termination of this Agreement for any reason, Local Agency shall provide all Work Product and State Materials to the State in a form and manner as directed by the State. 18. GOVERNMENTAL IMMUNITY Liability for claims for injuries to persons or property arising from the negligence of the Parties, their departments, boards, commissions committees, bureaus, offices, employees and officials shall be controlled and limited by the provisions of the GIA; the Federal Tort Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b), and the State’s risk management statutes, §§24 -30-1501, et seq. C.R.S. 19. STATEWIDE CONTRACT MANAGEMENT SYSTEM If the maximum amount payable to Local Agency under this Agreement is $100,000 or greater, either on the Effective Date or at anytime thereafter, this §19 shall apply. Local Agency agrees to be governed by and comply with the provisions of §24-102-205, §24-102-206, §24-103-601, §24-103.5-101 and §24-105-102 C.R.S. regarding the monitoring of vendor performance and the reporting of contract performance information in the State’s contract management system (“Contract Management System” or “CMS”). Local Agency’s performance shall be subject to evaluation and review in accordance with the terms and conditions of this Agreement, Colorado statutes governing CMS, and State Fiscal Rules and State Controller policies. 20. GENERAL PROVISIONS A. Assignment Local Agency’s rights and obligations under this Agreement are personal and may not be transferred or assigned without the prior, written consent of the State. Any attempt at assignment or transfer without such consent shall be void. Any assignment or transfer of Local Agency’s rights and obligations approved by the State shall be subject to the provisions of this Agreement B. Subcontracts Local Agency shall not enter into any subcontract in connection with its obligations under this Agreement without the prior, written approval of the State. Local Agency shall submit to the State a copy of each such subcontract upon request by the State. All subcontracts entered into by Local Agency in connection with this Agreement shall comply with all applicable federal and state laws and regulations, shall provide that they are governed by the laws of the State of Colorado, and shall be subject to all provisions of this Agreement. C. Binding Effect Except as otherwise provided in §20.A. all provisions of this Agreement, including the benefits and burdens, shall extend to and be binding upon the Parties’ respective successors and assigns. D. Authority Each Party represents and warrants to the other that the execution and delivery of this Agreement and the performance of such Party’s obligations have been duly authorized. E. Captions and References The captions and headings in this Agreement are for convenience of reference only, and shall not be used to interpret, define, or limit its provisions. All references in this Agreement to sections (whether spelled out or using the § symbol), subsections, exhibits or other attachments, are references to sec tions, 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 Page 51 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 22 of 25 deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. G. Entire Understanding This Agreement represents the complete integration of all understandings between the Parties related to the Work, and all prior representations and understandings related to the Work, oral or written, are merged into this Agreement. Prior or contemporaneous additions, deletions, or other changes to this Agreement shall not have any force or effect whatsoever, unless embodied herein. H. Jurisdiction and Venue All suits or actions related to this Agreement shall be filed and proceedings held in the State of Colorado and exclusive venue shall be in the City and County of Denver. I. Modification Except as otherwise provided in this Agreement, any modification to this Agreement shall only be effective if agreed to in a formal amendment to this Agreement, properly executed and approved in accordance with applicable Colorado State law and State Fiscal Rules. Modifications permitted under this Agreement, other than contract amendments, shall conform to the policies promulgated by the Colorado State Controller. J. Statutes, Regulations, Fiscal Rules, and Other Authority. Any reference in this Agreement to a statute, regulation, State Fiscal Rule, fiscal policy or other authority shall be interpreted to refer to such authority then current, as may have been changed or amended since the Effective Date of this Agreement. K. Order of Precedence In the event of a conflict or inconsistency between this Agreement and any exhibits or attachment such conflict or inconsistency shall be resolved by reference to the documents in the following order of priority: i. Colorado Special Provisions in the main body of this Agreement. ii. The provisions of the other sections of the main body of this Agreement. iii Exhibit A, Statement of Work. iv. Exhibit D, Local Agency Resolution. v. Exhibit C, Funding Provisions. vi. Exhibit B, Sample Option Letter. vii. Exhibit E, Local Agency Contract Administration Checklist. viii. Other exhibits in descending order of their attachment. L. Severability The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in fu ll force and effect, provided that the Parties can continue to perform their obligations under this Agreement in accordance with the intent of the Agreement. M. Survival of Certain Agreement Terms Any provision of this Agreement that imposes an obligation on a Party after termination or expiration of the Agreement shall survive the termination or expiration of the Agreement and shall be enforceable by the other Party. N. Third Party Beneficiaries Except for the Parties’ respective successors and assigns described in §20.C, this Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than the Parties. Enforcement of this Agreement and all rights and obligations hereunder are reserved solely to the Parties. Any services or benefits which third parties receive as a result of this Agreement are incidental to the Agreement, and do not create any rights for such third parties. Page 52 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 23 of 25 O. Waiver A Party’s failure or delay in exercising any right, power, or privilege under thi s Agreement, whether explicit or by lack of enforcement, shall not operate as a waiver, nor shall any single or partial exercise of any right, power, or privilege preclude any other or further exercise of such right, power, or privilege. P. CORA Disclosure To the extent not prohibited by federal law, this Agreement and the performance measures and standards required under §24-103.5-101 C.R.S., if any, are subject to public release through the CORA. Q. Standard and Manner of Performance Local Agency shall perform its obligations under this Agreement in accordance with the highest standards of care, skill and diligence in Local Agency’s industry, trade, or profession. R. Licenses, Permits, and Other Authorizations. Local Agency shall secure, prior to the Effective Date, and maintain at all times during the term of this Agreement, at its sole expense, all licenses, certifications, permits, and other authorizations required to perform its obligations under this Agreement, and shall ensure that all employees, age nts and Subcontractors secure and maintain at all times during the term of their employment, agency or subcontract, all license, certifications, permits and other authorizations required to perform their obligations in relation to this Agreement. 21. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3) These Special Provisions apply to all contracts except where noted in italics. A. STATUTORY APPROVAL. §24-30-202(1), C.R.S. This Contract shall not be valid until it has been approved by the Colorado State Controller or designee. If this Contract is for a Major Information Technology Project, as defined in §24 -37.5-102(2.6), then this Contract shall not be valid until it has been approved by the State’s Chief Information Officer or designee. B. FUND AVAILABILITY. §24-30-202(5.5), C.R.S. Financial obligations of the State payable after the current State Fiscal Year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. C. GOVERNMENTAL IMMUNITY. Liability for claims for injuries to persons or property arising from the negligence of the State, its departments, boards, commissions committees, bureaus, offices, employees and officials shall be controlled and limited by the provisions of the Colorado Governmental Immunity Act, §24-10-101, et seq., C.R.S.; the Federal Tort Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b), and the State’s risk management statutes, §§24 -30-1501, et seq. C.R.S. No term or condition of this Contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, contained in these statutes. D. INDEPENDENT CONTRACTOR Contractor shall perform its duties hereunder as an independent contractor and not as an employee. Neither Contractor nor any agent or employee of Contractor shall be deemed to be an agent or employee of the State. Contractor shall not have authorization, express or implied, to bind the State to any agreement, liability or understanding, except as expressly set forth herein. Contractor and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise provide such coverage for Contractor or any of its agents or employees. Contractor shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this Contract. Contractor shall (i) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (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. Contractor shall comply with all applicable federal and State laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices. F. CHOICE OF LAW, JURISDICTION, AND VENUE. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Contract. Any provision included or incorporated herein by reference which conflicts with said laws, Page 53 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 24 of 25 rules, and regulations shall be null and void. All suits or actions related to this Contract 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 Contract that requires the State to indemnify or hold Contractor harmless; requires the State to agree to binding arbitration; limits Contractor’s liability for damages resulting from death, bodily injury, or damage to tangible property; or that conflicts with this provision in any way shall be void ab initio. Nothing in this Contract shall be construed as a waiver of any provision of §24-106-109 C.R.S. Any term included in this Contract that limits Contractor’s liability that is not void under this section shall apply only in excess of any insurance to be maintained under this Contract, and no insurance policy shall be interpreted as being subject to any limitations of liability of this Contract . H. SOFTWARE PIRACY PROHIBITION. State or other public funds payable under this Contract shall not be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. Contractor hereby certifies and warrants that, during the term of this Contract and any extensions, Contractor has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that Contractor is in violation of this provision, the State may exercise any remedy available at law or in equity or under this Contract, including, without limitation, immediate termination of this Contract and any remedy consistent with federal copyright laws or applicable licensing restrictions. I. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. §§24-18-201 and 24-50-507, C.R.S. The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this Contract. Contractor has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of Contractor’s services and Contractor shall not employ any person having such known interests. J. VENDOR OFFSET AND ERRONEOUS PAYMENTS. §§24-30-202(1) and 24-30-202.4, C.R.S. [Not applicable to intergovernmental agreements] Subject to §24-30-202.4(3.5), C.R.S., the State Controller may withhold payment under the State’s vendor offset intercept system for debts owed to State agencies for: (i) unpaid child support debts or child support arrearages; (ii) unpaid balances of tax, accrued interest, or other charges specified in §§39- 21-101, et seq., C.R.S.; (iii) unpaid loans due to the Student Loan Division of the Department of Higher Education; (iv) amounts required to be paid to the Unemployment Compensation Fund; and (v) other unpaid debts owing to the State as a result of final agency determination or judicial action. The State may also recover, at the State’s discretion, payments made to Contractor in error for any reason, including, but not limited to, overpayments or improper payments, and unexpended or excess funds received by Contractor by deduction from subsequent payments under this Contract, deduction from any payment due under any other contracts, grants or agreements between the State and Contractor, or by any other appropriate method for collecting debts owed to the State. K. PUBLIC CONTRACTS FOR SERVICES. §§8-17.5-101, et seq., C.R.S. [Not applicable to agreements relating to the offer, issuance, or sale of securities, investment advisory services or fund management services, sponsored projects, intergovernmental agreements, or information technology services or products and services] Contractor certifies, warrants, and agrees that it does not knowingly employ or contract with an illegal alien who will perform work under this Contract and will confirm the employment eligibility of all employees who are newly hired for employment in the United States to perform work under this Contract, through participation in the E-Verify Program or the State verification program established pursuant to §8-17.5-102(5)(c), C.R.S., Contractor shall not knowingly employ or contract with an illegal alien to perform work under this Contract or enter into a contract with a Subcontractor that fails to certify to Contractor that the Subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Contract. Contractor (i) shall not use E-Verify Program or the program procedures of the Colorado Department of Labor and Employment (“Department Program”) to undertake pre- employment screening of job applicants while this Contract is being performed, (ii) shall notify the Subcontractor and the contracting State agency or institution of higher education within 3 days if Contractor has actual knowledge that a Subcontractor is employing or contracting with an illegal alien for work under this Contract, (iii) shall terminate the subcontract if a Subcontractor does not stop employing or contracting with the illegal alien within 3 days of receiving the notice, and (iv) shall comply with reasonable requests made in the course of an investigation, undertaken pursuant to §8-17.5-102(5), C.R.S., by the Colorado Department of Labor and Employment. If Contractor participates in the Department program, Contractor shall deliver to the contracting State agency, Institution of Higher Education or political subdivision, a written, notarized affirmation, affirming that Contractor has examined the legal work status of such employee, and shall comply with all of the other requirements of the Department program. If Contractor fails to comply with any requirement of this provision or §§8-17.5-101, et seq., C.R.S., the contracting State agency, institution of higher education or political subdivision may terminate this Contract for breach and, if so terminated, Contractor shall be liable for damages. L. PUBLIC CONTRACTS WITH NATURAL PERSONS. §§24-76.5-101, et seq., C.R.S. Page 54 of 202 OLA #: 331002116 Routing #: 20-HA1-XC-03044 Document Builder Generated Rev. 12/09/2016 Page 25 of 25 Contractor, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that Contractor (i) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (ii) shall comply with the provisions of §§24-76.5-101, et seq., C.R.S., and (iii) has produced one form of identification required by §24- 76.5-103, C.R.S. prior to the Effective Date of this Contract. Revised 11 -1 -18 22. FEDERAL REQUIREMENTS Local Agency and/or their contractors, subcontractors, and consultants shall at all times during the execution of this Agreement strictly adhere to, and comply with, all applicable federal and State laws, and their implementing regulations, as they currently exist and may hereafter be amended. A summary of applicable federal provisions are attached hereto as Exhibit F, Exhibit I, Exhibit J, Exhibit K and Exhibit M are hereby incorporated by this reference. 23. DISADVANTAGED BUSINESS ENTERPRISE (DBE) Local Agency will comply with all requirements of Exhibit G and Local Agency Contract Administration Checklist regarding DBE requirements for the Work, except that if Local Agency desires to use its own DBE program to implement and administer the DBE provisions of 49 C.F.R. Part 26 under this Agreement, it must submit a copy of its program’s requirements to the State for review and approval before the execution of this Agreement. If Local Agency uses any State- approved DBE program for this Agreement, Local Agency shall be solely responsible to defend that DBE program and its use of that program against all legal and other challenges or complaints, at its sole cost and expense. Such responsibility includes, without limitation, determinations concerning DBE eligibility requirements and certification, adequate legal a nd factual bases for DBE goals and good faith efforts. State approval (if provided) of Local Agency’s DBE program does not waive or modify the sole responsibility of Local Agency for use of its program. 24. DISPUTES Except as otherwise provided in this Agreement, any dispute concerning a question of fact arising under this Agreement which is not disposed of by agreement shall be decided by the Chief Engineer of the Department of Transportation. The decision of the Chief Engineer will be final and conclusive unless, within 30 calendar days after the date of receipt of a copy of such written decision, Local Agency mails or otherwise furnishes to the State a written appeal addressed to the Executive Director of CDOT. In connection with any appeal proceeding under this clause, Local Agency shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, Local Agency shall proceed diligently with the performance of this Agreement in accordance with the Chief Engineer’s decision. The decision of the Executive Director or his duly authorized representative for the determination of such appeals shall be final and conclusive and serve as final agency action. This dispute clause does not preclude consideration of questions of law in connection with decisions provided for herein. Nothing in this Agreement, however, shall be construed as making final the decision of any administrative official, representative, or board on a question of law. THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK Page 55 of 202 Exhibit A – Page 1 of 1 EXHIBIT A, STATEMENT OF WORK This project is intended to reconstruct the interchange of US-285 and South Broadway in Englewood, CO. The new interchange will include a wider cross-section on South Broadway to facilitate additional or improved bicycle and pedestrian mobility through the Broadway corridor. The Broadway Bridge will also be lengthened to accommodate an additional lane in each direction on US-285, thereby, eliminating a critical bottleneck on the major East-West corridor. To further improve mobility on US-285, this project will investigate access modifications to US-285 from multiple nearby cross-streets. This project will involve design and construction related to bridges, arterial roadways, ROW acquisition, retaining walls, traffic signals, grade changes, access modification, water main relocation, storm sewers, sanitary sewers, landscaping, multi-use paths, bike lanes, and sidewalks. The design phase will include studies and analysis of alternative interchange designs. The scope for this project will include work in the phases of Project Development, Project Design, and Project Construction. The City of Englewood is anticipating utilizing the Design-Bid-Build project delivery method, but intends to leave the option of bringing in a Construction Manager/General Contractor at 30% plan completion. The primary reason for bringing in a CM/GC would be to better address traffic control and staging concerns for both US-285 and South Broadway during the design phase. THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK Page 56 of 202 Exhibit B - Page 1 of 2 EXHIBIT B, SAMPLE OPTION LETTER State Agency Department of Transportation Option Letter Number ZOPTLETNUM Local Agency ZVENDORNAME Agreement Routing Number ZSMARTNO Agreement Maximum Amount Initial term State Fiscal Year ZFYY_1 Extension terms State Fiscal Year ZFYY_2 State Fiscal Year ZFYY_3 State Fiscal Year ZFYY_4 State Fiscal Year ZFYY_5 Total for all state fiscal years $ ZFYA_1 $ ZFYA_2 $ ZFYA_3 $ ZFYA_4 $ ZFYA_5 $ ZPERSVC_MAX_ AMOUNT Agreement Effective Date The later of the effective date or ZSTARTDATEX Current Agreement Expiration Date ZTERMDATEX 1. OPTIONS: A. Option to extend for an Extension Term B. Option to unilaterally authorize the Local Agency to begin a phase which may include Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous ONLY (does not apply to Acquisition/Relocation or Railroads) and to update encumbrance amounts (a new Exhibit C must be attached with the option letter and shall be labeled C-1, future changes for this option shall be labeled as follows: C-2, C-3, C-4, etc.). C. Option to unilaterally transfer funds from one phase to another phase (a new Exhibit C must be attached with the option letter and shall be labeled C-1, future changes for this option shall be labeled as follows: C-2, C-3, C- 4, etc.). D. Option to unilaterally do both A and B (a new Exhibit C must be attached with the option letter and shall be labeled C-1, future changes for this option shall be labeled as follows: C-2, C-3, C-4, etc.). E. Option to update a Phase Performance Period and/or Modify OMB Uniform Guidance Information. 2. REQUIRED PROVISIONS: Option A In accordance with Section 2, C of the Original Agreement referenced above, the State hereby exercises its option for an additional term, beginning on (insert date) and ending on the current contract expiration date shown above, under the same funding provisions stated in the Original Contract Exhibit C, as amended. Option B In accordance with Section 7, E of the Original Agreement referenced above, the State hereby excerises its option to authorize the Local Agency to begin a phase that will include (describe which phase will be added and include all that apply – Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous) and to encumber previously budgeted funds for the phase based upon changes in funding availability and authorization. The encumbrance for (Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous)is (insert dollars here). A new Exhibit C-1 is made part of the original Agreement and replaces Exhibit C. (The following is a NOTE only, please delete when using this option. Future changes for this option for Exhibit C shall be labled as follows: C-2, C-3, C-4, etc.). Option C In accordance with Section 7, E of the Original Agreement referenced above, the State hereby excerises its option to Page 57 of 202 Exhibit B - Page 2 of 2 authorize the Local Agency to transfer funds from (describe phase from which funds will be moved) to (describe phase to which funds will be moved) based on variance in actual phase costs and original phase estimates. A new Exhibit C-1 is made part of the original Agreement and replaces Exhibit C. Option D In accordance with Section 7, E of the Original Agreement referenced above, the State hereby excerises its option to authorize the Local Agency to begin a phase that will include (describe which phase will be added and include all that apply – Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous); 2) to encumber funds for the phase based upon changes in funding availability and authorization; and 3) to transfer funds from (describe phase from which funds will be moved) to (describe phase to which funds will be moved) based on variance in actual phase costs and original phase estimates. A new Exhibit C-1 is made part of the original Agreement and replaces Exhibit C. (The following language must be included on ALL options): The Agreement Maximum Amount table on the Contract’s Signature and Cover Page is hereby deleted and replaced with the Current Agreement Maximum Amount table shown above. Option E In accordance with Section 7, E of the Original Agreement referenced above, the State hereby excerises its option to authorize the Local Agency to update a Phase Performance Period and/or Modify OMB Uniform Guidance Information. A new Exhibit C-1 is made part of the original Agreement and replaces Exhibit C. 3. OPTION EFFECTIVE DATE: The effective date of this option letter is upon approval of the State Controller or delegate. APPROVALS: State of Colorado: Jared S. Polis, Governor By: _____________________________________________ Date: __________________ Executive Director, Colorado Department of Transportation ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER CRS §24-30-202 requires the State Controller to approve all State Contracts. This Agreement is not valid until signed and dated below by the State Controller or delegate. Contractor is not authorized to begin performance until such time. If the Local Agency begins performing prior thereto, the State of Colorado is not obligated to pay the Local Agency for such performance or for any goods and/or services provided hereunder. State Controller Robert Jaros, CPA, MBA, JD By: __________________________________ Date: ________________________________ Page 58 of 202 Exhibit C – Page 1 of 2 EXHIBIT C – FUNDING PROVISIONS STU 2854-145 (23553) A. Cost of Work Estimate The Local Agency has estimated the total cost the Work to be $9,500,000.00, which is to be funded as follows: 1. BUDGETED FUNDS a. Federal Funds (80% of Participating Costs) $7,600,000.00 b. Local Agency Matching Funds (11.58% of Participating Costs) $1,100,000.00 c. State Matching Funds (8.42% of Participating Costs) $800,000.00 TOTAL BUDGETED FUNDS $9,500,000.00 2. OMB UNIFORM GUIDANCE a. Federal Award Identification Number (FAIN): TBD b. Federal Award Date: TBD c. Amount of Federal Funds Obligated: $0.00 d. Total Amount of Federal Award: $7,600,000.00 e. Name of Federal Awarding Agency: FHWA f. CFDA Number CFDA 20.205 g. Is the Award for R&D? No h. Indirect Cost Rate (if applicable) N/A 3. ESTIMATED PAYMENT TO LOCAL AGENCY a. Federal Funds Budgeted $7,600,000.00 b. State Matching Funds $800,000.00 c. Less Estimated Federal Share of CDOT-Incurred Costs $0.00 TOTAL ESTIMATED PAYMENT TO LOCAL AGENCY $8,400,000.00 4. FOR CDOT ENCUMBRANCE PURPOSES a. Total Encumbrance Amount $9,500,000.00 b. Less ROW Acquisition 3111 and/or ROW Relocation 3109 $0.00 Net to be encumbered as follows: $9,500,000.00 Note: Design and Construction phase funds are currently not available. Design and construction and Construction funds will be added when they become available by either an option letter or formal amendment. WBS Element 23553.10.30 Performance Period Start*/End Date TBD / TBD Design 3020 $0.00 WBS Element 23553.20.10 Performance Period Start*/End Date TBD / TBD Const. 3301 $0.00 *The Local Agency should not begin work until all three of the following are in place: 1) Phase Performance Period Start Date; 2) the execution of the document encumbering funds for the respective phase; and 3) Local Agency receipt of the official Notice to Proceed. Any work performed before these three milestones are achieved will not be reimbursable. Page 59 of 202 Exhibit C – Page 2 of 2 B. Matching Funds The matching ratio for the federal participating funds for this Work is 80% federal-aid funds to 11.6% Local Agency funds to 8.4% State funds, it being understood that such ratio applies only to the $9,500,000.00 that is eligible for federal participation, it being further understood that all non-participating costs are borne by the Local Agency at 100%. If the total participating cost of performance of the Work exceeds $9,500,000.00, and additional federal funds are made available for the Work, the Local Agency shall pay 11.6% of all such costs eligible for federal participation and 100% of all non -participating costs; if additional federal funds are not made available, the Local Agency shall pay all such excess costs. If the total participating cost of performance of the Work is less than $9,500,000.00, then the amounts of Local Agency, State and federal-aid funds will be decreased in accordance with the funding ratio described herein. C. Maximum Amount Payable The maximum amount payable to the Local Agency under this Agreement shall be $8,400,000.00 (For CDOT accounting purposes, the federal funds of $7,600,000.00, the Local Agency matching funds of $1,100,000.00 and the State funds of $800,000.00 will be encumbered for a total encumbrance of $9,500,000.00), unless such amount is increased by an appropriate written modification to this Agreement executed before any increased cost is incurred. It is understood and agreed by the parties hereto that the total cost of the Work stated hereinbefore is the best estimate available, based on the design data as approved at the time of execution of this Agreement, and that such cost is subject to revisions (in accord with the procedure in the previous sentence ) agreeable to the parties prior to bid and award. The maximum amount payable shall be reduced without amendment when the actual amount of the Local Agency’s awarded contract is less than the budgeted total of the federal participating funds and the Local Agency matching funds. The maximum amount payable shall be reduced through the execution of an Option Letter as described in Section 7. E. of this contract. D. Single Audit Act Amendment All state and local government and non-profit organizations receiving more than $750,000 from all funding sources defined as federal financial assistance for Single Audit Act Amendment purposes shall comply with the audit requirements of 2 CFR part 200, subpart F (Audit Requirements) see also, 49 C.F.R. 18.20 through 18.26. The Single Audit Act Amendment requirements applicable to the Local Agency receiving federal funds are as follows: i. Expenditure less than $750,000 If the Local Agency expends less than $750,000 in Federal funds (all federal sources, not just Highway funds) in its fiscal year then this requirement does not apply. ii. Expenditure of $750,000 or more-Highway Funds Only If the Local Agency expends $750,000 or more, in Federal funds, but only received federal Highway funds (Catalog of Federal Domestic Assistance, CFDA 20.205) then a program specific audit shall be performed. This audit will examine the “financial” procedures and processes for this program ar ea. iii. Expenditure of $750,000 or more-Multiple Funding Sources If the Local Agency expends $750,000 or more in Federal funds, and the Federal funds are from multiple sources (FTA, HUD, NPS, etc.) then the Single Audit Act applies, which is an audit on the e ntire organization/entity. iv. Independent CPA Single Audit shall only be conducted by an independent CPA, not by an auditor on staff. An audit is an allowable direct or indirect cost. Page 60 of 202 Exhibit D – Page 1 of 1 EXHIBIT D, LOCAL AGENCY RESOLUTION NOT APPLICABLE Page 61 of 202 Exhibit E – Page 1 of 5 EXHIBIT E, LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST Page 62 of 202 Exhibit E – Page 2 of 5 Page 63 of 202 Exhibit E – Page 3 of 5 Page 64 of 202 Exhibit E – Page 5 of 5 Page 65 of 202 Exhibit F - Page 1 of 1 EXHIBIT F, CERTIFICATION FOR FEDERAL-AID CONTRACTS The Local Agency certifies, by signing this Agreement, to the best of its knowledge and belief, that: No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, Agreement, loan, or cooperative agreement. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer of Congress, or an employee of a Member of Congress in connection with this Federal contract, Agreement, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. The prospective participant also agree by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such sub - recipients shall certify and disclose accordingly. Page 66 of 202 Exhibit G - Page 1 of 1 EXHIBIT G SECTION 1. Policy. It is the policy of the Colorado Department of Transportation (CDOT) that disadvantaged business enterprises shall have the maximum opportunity to participate in the performance of contracts financed in whole or in part with Federal funds under this agreement, pursuant to 49 CFR Part 26. Consequently, the 49 CFR Part IE DBE requirements the Colorado Department of Transportation DBE Program (or a Local Agency DBE Program approved in advance by the State) apply to this agreement. SECTION 2. DBE Obligation. The recipient or its the Local Agency agrees to ensure that disadvantaged business enterprises as determined by the Office of Certification at the Colorado Department of Regulatory Agencies have the maximum opportunity to participate in the performance of contracts and subcontracts financed in whole or in part with Federal funds provided under this agreement. In this regard, all participants or contractors shall take all necessary and reasonable steps in accordance with the CDOT DBE program (or a Local Agency DBE Program approved in advance by the State) to ensure that disadvantaged business enterprises have the maximum opportunity to compete for and perform contracts. Recipients and their contractors shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of CDOT assisted contracts. SECTION 3 DBE Program. The Local Agency (sub-recipient) shall be responsible for obtaining the Disadvantaged Business Enterprise Program of the Colorado Department of Transportation, 1988, as amended, and s hall comply with the applicable provisions of the program. (If applicable). A copy of the DBE Program is available from and will be mailed to the Local Agency upon request: Civil Rights & Business Resource Center Colorado Department of Transportation 2829 W. Howard Place Denver, Colorado 80204 Phone: (303) 757-9234 REVISED 1/22/98 REQUIRED BY 49 CFR PART Page 67 of 202 Exhibit H - Page 1 of 2 EXHIBIT H, LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES Title 23 Code of Federal Regulations (CFR) 172 applies to a federally funded Local Agency project agreement administered by CDOT that involves professional consultant services. 23 CFR 172.1 states “The policies and procedures involve federally funded contracts for engineering and design related services for projects subject to the provisions of 23 U.S.C. 112(a) and are issued to ensure that a qualified consultant is obtained through an equitable selection process, that prescribed work is properly accomplished in a timely manner, and at fair and reasonable cost” and according to 23 CFR 172.5 “Price shall not be used as a factor in the analysis and selection phase.” Therefore, local agencies must comply with these CFR requirements when obtaining professional c onsultant services under a federally funded consultant contract administered by CDOT. CDOT has formulated its procedures in Procedural Directive (P.D.) 400.1 and the related operations guidebook titled "Obtaining Professional Consultant Services". This directive and guidebook incorporate requirements from both Federal and State regulations, i.e., 23 CFR 172 and CRS §24-30-1401 et seq. Copies of the directive and the guidebook may be obtained upon request from CDOT's Agreements and Consultant Management Unit. [Local agencies should have their own written procedures on file for each method of procurement that addresses the items in 23 CFR 172]. Because the procedures and laws described in the Procedural Directive and the guidebook are quite lengthy, the subsequent steps serve as a short-hand guide to CDOT procedures that a Local Agency must follow in obtaining professional consultant services. This guidance follows the format of 23 CFR 172. The steps are: 1. The contracting Local Agency shall document the need for obtaining professional services. 2. Prior to solicitation for consultant services, the contracting Local Agency shall develop a detailed scope of work and a list of evaluation factors and their relative importance. The evaluation factors are those identified in C.R.S. 24-30-1403. Also, a detailed cost estimate should be prepared for use during negotiations. 3. The contracting agency must advertise for contracts in conformity with the requirements of C.R.S. 24 -30- 1405. The public notice period, when such notice is required, is a minimum of 15 days prior to the selection of the three most qualified firms and the advertising should be done in one or more daily newspapers of general circulation. 4. The Local Agency shall not advertise any federal aid contract without prior review by the CDOT Regional Civil Rights Office (RCRO) to determine whether the contract shall be subject to a DBE contract goal. If the RCRO determines a goal is necessary, then the Local Agency shall include the goal and the applicable provisions within the advertisement. The Local Agency shall not award a contract to any Contractor or Consultant without the confirmation by the CDOT Civil Rights and Business Resource Center that the Contractor or Consultant has demonstrated good faith efforts. The Local Agency shall work with the CDOT RCRO to ensure compliance with the established terms during the performance of the contract. 5. The Local Agency shall require that all contractors pay subcontractors for satisfactory performance of work no later than 30 days after the receipt of payment for that work from the contractor. For construction projects, this tiem period shall be reduced to seven days in accordance with Colorado Revised Statute 24-91-103(2). If the Local Agency withholds retainage from contractors and/or allows contractors to withhold retainage fr om subcontractors, such retainage provisions must comply with 49 CFR 26.29. 6. Payments to all Subconsultants shall be made within thirty days of receipt of payment from [the Local Agency] or no later than ninety days from the date of the submission of a complete invoice from the Subconsultant, whichever occurs first. If the Consultant has good cause to dispute an amount invoiced by a Subconsultant, the Consultant shall notify [the Local Agency] no later than the required date for payment. Such notification shall include the amount disputed and justification for the withholding. The Consultant shall maintain records of payment that show amounts paid to all Subconsultants. Good cause does not include the Consultant’s failure to submit an invoice to the Local Agency or to deposit payments made. 7. The analysis and selection of the consultants shall be done in accordance with CRS §24-30-1403. This section of the regulation identifies the criteria to be used in the evaluation of CDOT pre-qualified prime consultants and their team. It also shows which criteria are used to short-list and to make a final selection. The short-list is based on the following evaluation factors: a. Qualifications, Page 68 of 202 Exhibit H - Page 2 of 2 b. Approach to the Work, c. Ability to furnish professional services. d. Anticipated design concepts, and e. Alternative methods of approach for furnishing the professional services. Evaluation factors for final selection are the consultant's: a. Abilities of their personnel, b. Past performance, c. Willingness to meet the time and budget requirement, d. Location, e. Current and projected work load, f. Volume of previously awarded contracts, and g. Involvement of minority consultants. 8. Once a consultant is selected, the Local Agency enters into negotiations with the consultant to obtain a fair and reasonable price for the anticipated work. Pre -negotiation audits are prepared for contracts expected to be greater than $50,000. Federal reimbursements for costs are limited to those costs allowable under the cost principles of 48 CFR 31. Fixed fees (profit) are determined with consideration given to size, complexit y, duration, and degree of risk involved in the work. Profit is in the range of six to 15 percent of the total direct and indirect costs. 9. A qualified Local Agency employee shall be responsible and in charge of the Work to ensure that the work being pursued is complete, accurate, and consistent with the terms, conditions, and specifications of the contract. At the end of Work, the Local Agency prepares a performance evaluation (a CDOT form is available) on the consultant. CRS §§24-30-1401 THROUGH 24-30-1408, 23 CFR PART 172, AND P.D. 400.1, PROVIDE ADDITIONAL DETAILS FOR COMPLYING WITH THE PRECEEDING EIGHT (8) STEPS. Page 69 of 202 Exhibit I - Page 1 of 12 EXHIBIT I, FEDERAL-AID CONTRACT PROVISIONS FOR CONSTRUCTION CONTRACTS Page 70 of 202 Exhibit I - Page 2 of 12 Page 71 of 202 Exhibit I - Page 3 of 12 Page 72 of 202 Exhibit I - Page 4 of 12 Page 73 of 202 Exhibit I - Page 5 of 12 Page 74 of 202 Exhibit I - Page 6 of 12 Page 75 of 202 Exhibit I - Page 7 of 12 Page 76 of 202 Exhibit I - Page 8 of 12 Page 77 of 202 Exhibit I - Page 9 of 12 Page 78 of 202 Exhibit I - Page 10 of 12 Page 79 of 202 Exhibit I - Page 11 of 12 Page 80 of 202 Exhibit I - Page 12 of 12 Page 81 of 202 Exhibit J - Page 1 of 11 EXHIBIT J, ADDITIONAL FEDERAL REQUIREMENTS Federal laws and regulations that may be applicable to the Work include: Executive Order 11246 Executive Order 11246 of September 24, 1965 entitled "Equal Employment Opportunity," as amended by Executive Order 11375 of October 13, 1967 and as supplemented in Department of Labor regulations (41 CFR Chapter 60) (All construction contracts awarded in excess of $10,000 by the Local Agencys and their contractors or the Local Agencys). Copeland "Anti-Kickback" Act The Copeland "Anti-Kickback" Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29 CFR Part 3) (All contracts and sub-Agreements for construction or repair). Davis-Bacon Act The Davis-Bacon Act (40 U.S.C. 276a to a-7) as supplemented by Department of Labor regulations (29 CFR Part 5) (Construction contracts in excess of $2,000 awarded by the Local Agencys and the Local Agencys when required by Federal Agreement program legislation. This act requires that all laborers and mechanics employed by contractors or sub-contractors to work on construction proj ects financed by federal assistance must be paid wages not less than those established for the locality of the project by the Secretary of Labor). Contract Work Hours and Safety Standards Act Sections 103 and 107 of the Contract Work Hours and Safety Stand ards Act (40 U.S.C. 327-330) as supplemented by Department of Labor regulations (29 CFR Part 5). (Construction contracts awarded by the Local Agency’s in excess of $2,000, and in excess of $2,500 for other contracts which involve the employment of mechanics or laborers). Clear Air Act Standards, orders, or requirements issued under section 306 of the Clear Air Act (42 U.S.C. 1857(h), section 508 of the Clean Water Act (33 U.S.C. 1368). Executive Order 11738, and Environmental Protection Agency regulations (40 CFR Part 15) (contracts, subcontracts, and sub-Agreements of amounts in excess of $100,000). Energy Policy and Conservation Act Mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94 -163). OMB Circulars Office of Management and Budget Circulars A-87, A-21 or A-122, and A-102 or A-110, whichever is applicable. Hatch Act The Hatch Act (5 USC 1501-1508) and Public Law 95-454 Section 4728. These statutes state that federal funds cannot be used for partisan political purposes of any kind by any person or organization involved in the administration of federally-assisted programs. Nondiscrimination The Local Agency shall not exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States on the ground of race, color national origin, sex, age or disability. Prior to the receipt of any Federal financial assistance from CDOT, the Local Agency shall execute the attached Standard DOT Title VI assurance. As appropriate, the Local Agency shall include Appendix A, B, or C to the Standard DOT Title VI assurance in any contract utilizing federal funds, land or other aid. The Local Agency shall also include the following in all contract advertisements: The [Local Agency], in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (79 Stat. 252, 42 US.C. §§ 2000d to 2000d-4) and the Regulations, hereby notifies all bidders that it will affirmatively ensure that any contract entered into pursuant to this advertisement, DBEs will be afforded full and fair opportunity to submit bids in response to this invitation and will not be discriminated against on the grouds of race, color, or national origin in consideration for any award. Page 82 of 202 Exhibit J - Page 2 of 11 ADA In any contract utilizing federal funds, land, or other federal aid, the Local Agency shall require the federal- aid recipient or contractor to provide a statement of written assurance that they will comply with Section 504 and not discriminate on the basis of disability. Uniform Relocation Assistance and Real Property Acquisition Policies Act The Uniform Relocation Assistance and Real Property Acquisition Policies Act, as amended (P ublic Law 91-646, as amended and Public Law 100-17, 101 Stat. 246-256). (If the contractor is acquiring real property and displacing households or businesses in the performance of the Agreement). Drug-Free Workplace Act The Drug-Free Workplace Act (Public Law 100-690 Title V, subtitle D, 41 USC 701 et seq.). Age Discrimination Act of 1975 The Age Discrimination Act of 1975, 42 U.S.C. Sections 6101 et. seq. and its implementing regulation, 45 C.F.R. Part 91; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, as amended, and implementing regulation 45 C.F.R. Part 84. 23 C.F.R. Part 172 23 C.F.R. Part 172, concerning "Administration of Engineering and Design Related Contracts". 23 C.F.R Part 633 23 C.F.R Part 633, concerning "Required Contract Provisions for Federal-Aid Construction Contracts". 23 C.F.R. Part 635 23 C.F.R. Part 635, concerning "Construction and Maintenance Provisions". Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973 Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973. The requirements for which are shown in the Nondiscrimination Provisions, which are attached hereto and made a part hereof. Nondiscrimination Provisions: In compliance with Title VI of the Civil Rights Act of 1964 and with Section 162(a) of the Federal Aid Highway Act of 1973, the Contractor, for itself, its assignees and successors in interest, agree as follows: v. Compliance with Regulations The Contractor will comply with the Regulations of the Department of Transportation relative to nondiscrimination in Federally assisted programs of the Department of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the "Regulations"), which are herein incorporated by reference and made a part of this Agreement. vi. Nondiscrimination The Contractor, with regard to the work performed by it after award and prior to completion of the contract work, will not discriminate on the ground of race, color, sex, mental or phys ical handicap or national origin in the selection and retention of Subcontractors, including procurement of materials and leases of equipment. The Contractor will not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix C of the Regulations. vii. Solicitations for Subcontracts, Including Procurement of Materials and Equipment In all solicitations either by competitive bidding or negotiation made by the Contractor for work to be performed under a subcontract, including procurement of materials or equipment, each potential Subcontractor or supplier shall be notified by the Contractor of the Contractor's obligations under this Agreement and the Regulations relative to nondiscrimination on the ground of race, color, sex, mental or physical handicap or national origin. viii. Information and Reports The Contractor will provide all information and reports required by the Regulations, or orders and instructions issued pursuant thereto and will permit access to its books, records, accounts, other sources of information and its facilities as may be determined by the State or the FHWA to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of the Contractor is in the exclusive possession of another who fails or refuses to furnish this information, the Contractor shall so certify to the State, or the FHWA as appropriate and shall set forth what efforts have been made to obtain the information. Page 83 of 202 Exhibit J - Page 3 of 11 ix. Sanctions for Noncompliance In the event of the Contractor's noncompliance with the nondiscrimination provisions of this Agreement, the State shall impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: a. Withholding of payments to the Contractor under the contract until the Contractor complies, and/or b. Cancellation, termination or suspension of the contract, in whole or in part. Incorporation of Provisions §22 The Contractor will include the provisions of this Exhibit J in every subcontract, including procurement of materials and leases of equipment, unless exempt by the Regulations, orders, or instructions issued pursuant thereto. The Contractor will take such action with respect to any subcontract or procurement as the State or the FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance; provided, however, that, in the event the Contractor becomes involved in, or is threatened with, litigation with a Subcontractor or supplier as a result of such direction, the Contractor may request the State to enter into such litigation to protect the interest of the State and in addition, the Contractor ma y request the FHWA to enter into such litigation to protect the interests of the United States. THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK Page 84 of 202 Exhibit J - Page 4 of 11 SAMPLE The United States Department of Transportation (USDOT) Standard Title VI/Non -Discrimination Assurances for Local Agencies DOT Order No. 1050.2A The [Local Agency] (herein referred to as the "Recipient"), HEREBY AGREES THAT, as a condition to receiving any Federal financial assistance from the U.S. Department of Transportation (DOT), through the Colorado Department of Transportation and the Federal Highway Administration (FHWA), Federal Transit Administration (FTA), and Federal Aviation Administration (FAA), is subject to and will comply with the following: Statutory/Regulatory Authorities  Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin);  49 C.F.R. Part 21 (entitled Non-discrimination In Federally-Assisted Programs Of The Department Of Transportation-Effectuation Of Title VI Of The Civil Rights Act Of 1964);  28 C.F.R. section 50.3 (U.S. Department of Justice Guidelines for Enforcement of Title VI o f the Civil Rights Act of 1964); The preceding statutory and regulatory cites hereinafter are referred to as the "Acts" and "Regulations," respectively. General Assurances In accordance with the Acts, the Regulations, and other pertinent directives, circulars, policy, memoranda, and/or guidance, the Recipient hereby gives assurance that it will promptly take any measures necessary to ensure that: "No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity, "for which the Recipient receives Federal financial assistance from DOT, including the FHWA, FTA, or FAA. The Civil Rights Restoration Act of 1987 clarified the original intent of Congress, with respect to Title VI and other Non-discrimination requirements (The Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973), by restoring the broad, institutional-wide scope and coverage of these non- discrimination statutes and requirements to include all programs and activities of the Recipient, so long as any portion of the program is Federally assisted. Specific Assurances More specifically, and without limiting the above general Assurance, the Recipient agrees with and gives the following Assurances with respect to its Federally assisted FHWA, FTA, and FAA assisted programs: 1. The Recipient agrees that each "activity," "facility," or "program," as defined in §§ 21.2 3(b) and 21.23(e) of 49 C.F.R. § 21 will be (with regard to an "activity") facilitated, or will be (with regard to a "facility") operated, or will be (with regard to a "program") conducted in compliance with all requirements imposed by, or pursuant to the Acts and the Regulations. 2. The Recipient will insert the following notification in all solicitations for bids, Requests For Proposals for work, or material subject to the Acts and the Regulations made in connection with all FHWA, FTA and FAA programs and, in adapted form, in all proposals for negotiated agreements regardless of funding source: 3. "The [Local Agency] in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 US.C. §§ 2000d to 2000d-4) and the Regulations, hereby notifies all bidders that it will affirmatively ensure that any contract entered into pursuant to this advertisement, disadvantaged business enterprises will be afforded full and fair opportunity Page 85 of 202 Exhibit J - Page 5 of 11 4. to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, or national origin in consideration for an award." 5. The Recipient will insert the clauses of Appendix A and E of this Assurance in every contract or agreement subject to the Acts and the Regulations. 6. The Recipient will insert the clauses of Appendix B of this Assurance, as a covenant running with the land, in any deed from the United States effecting or recording a transfer of real property, structures, use, or improvements thereon or interest therein to a Recipient. 7. That where the Recipient receives Federal financial assistance to construct a facility, or part of a facility, the Assurance will extend to the entire facility and facilities operated in connection therewith. 8. That where the Recipient receives Federal financial assistance in the form, or for the acquisition of real property or an interest in real property, the Assurance will extend to rights to space on, over, or under such property. 9. That the Recipient will include the clauses set forth in Appendix C and Appendix D of this Assurance, as a covenant running with the land, in any future deeds, leases, licenses, permits, or similar instruments entered into by the Recipient with other parties: a. for the subsequent transfer of real property acquired or improved under the applicable activity, project, or program; and b. for the construction or use of, or access to, space on, over, or under real property acquired or improved under the applicable activity, project, or program. 10. That this Assurance obligates the Recipient for the period during which Federal financial assistance is extended to the program, except where the Federal financial assistance is to provide, or is in the form of, personal property, or real property, or interest therein, or structures or improvements thereon, in which case the Assurance obligates the Recipient, or any transferee for the longer of the following periods: a. the period during which the property is used for a purpose for which the F ederal financial assistance is extended, or for another purpose involving the provision of similar services or benefits; or b. the period during which the Recipient retains ownership or possession of the property. 11. The Recipient will provide for such methods of administration for the program as are found by the Secretary of Transportation or the official to whom he/she delegates specific authority to give reasonable guarantee that it, other recipients, sub-recipients, sub-grantees, contractors, subcontractors, consultants, transferees, successors in interest, and other participants of Federal financial assistance under such program will comply with all requirements imposed or pursuant to the Acts, the Regulations, and this Assurance. 12. The Recipient agrees that the United States has a right to seek judicial enforcement with regard to any matter arising under the Acts, the Regulations, and this Assurance. By signing this ASSURANCE, the [Local Agency] also agrees to comply (and require any sub-recipients, sub- grantees, contractors, successors, transferees, and/or assignees to comply) with all applicable provisions governing the FHWA, FTA, and FAA’s access to records, accounts, documents, information, facilities, and staff. You al so recognize that you must comply with any program or compliance reviews, and/or complaint investigations conducted by CDOT, FHWA, FTA, or FAA. You must keep records, reports, and submit the material for review Page 86 of 202 Exhibit J - Page 6 of 11 upon request to CDOT, FHWA, FTA, or FAA, or its designee in a timely, complete, and accurate way. Additionally, you must comply with all other reporting, data collection, and evaluation requirements, as prescribed by law or detailed in program guidance. [Local Agency] gives this ASSURANCE in consideration of and for obtaining any Federal grants, loans, contracts, agreements, property, and/or discounts, or other Federal-aid and Federal financial assistance extended after the date hereof to the recipients by the U.S. Department of Transportation under the FHWA, FTA, and FAA. This ASSURANCE is binding on [Local Agency], other recipients, sub-recipients, sub-grantees, contractors, subcontractors and their subcontractors', transferees, successors in interest, and any other participants in the FHWA, FTA, and FAA funded programs. The person(s) signing below is authorized to sign this ASSURANCE on behalf of the Recipient. _____________________________________ (Name of Recipient) by ___________________________________ (Signature of Authorized Official) DATED________________________________ Page 87 of 202 Exhibit J - Page 7 of 11 APPENDIX A During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees as follows: 1. Compliance with Regulations: The contractor (hereinafter includes consultants) will comply with the Acts and the Regulations relative to Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation, FHWA, as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract. 2. Non-discrimination: The contractor, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations , including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR Part 21. 3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment : In all solicitations, either by competitive bidding, or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the contractor of the contractor's obligations under this contract and the Acts and the Regulations relative to Non-discrimination on the grounds of race, color, or national origin. 4. Information and Reports: The contractor will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the [Local Agency], CDOT or FHWA to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information, the contractor will so certify to the [Local Agency], CDOT or FHWA, as appropriate, and will set forth what efforts it has made to obtain the information. 5. Sanctions for Noncompliance: In the event of a contractor's noncompliance with the Non- discrimination provisions of this contract, the [Local Agency] will impose such contract sanctions as it, CDOT or FHWA may determine to be appropriate, including, but not limited to: a. withholding payments to the contractor under the contract until the contractor complies; and/or b. cancelling, terminating, or suspending a contract, in whole or in part. 6. Incorporation of Provisions: The contractor will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The contractor will take action with respect to any subcontract or procurement as the Recipient or the [Local Agency], CDOT or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the contractor may request the Recipient to enter into any litigation to protect t he interests of the Recipient. In addition, the contractor may request the United States to enter into the litigation to protect the interests of the United States. Page 88 of 202 Exhibit J - Page 8 of 11 APPENDIX B CLAUSES FOR DEEDS TRANSFERRING UNITED STATES PROPERTY The following clauses will be included in deeds effecting or recording the transfer of real property, structures, or improvements thereon, or granting interest therein from the United States pursuant to the provisions of Assurance 4: NOW, THEREFORE, the U.S. Department of Transp ortation as authorized by law and upon the condition that the [Local Agency] will accept title to the lands and maintain the project constructed thereon in accordance with (Name of Appropriate Legislative Authority), the Regulations for the Administration of (Name of Appropriate Program), and the policies and procedures prescribed by the FHWA of the U.S. Department of Transportation in accordance and in compliance with all requirements imposed by Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S Department of Transportation pertaining to and effectuating the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. § 2000d to 2000d-4), does hereby remise, release, quitclaim and convey unto the [Local Agency] all the right, title and interest of the U.S. Department of Transportation in and to said lands described in Exhibit A attached hereto and made a part hereof. (HABENDUM CLAUSE) TO HAVE AND TO HOLD said lands and interests therein unto [Local Agency] and its successors forever, subject, however, to the covenants, conditions, restrictions and reservations herein contained as follows, which will remain in effect for the period during which the real property or structures are used for a purpose for which Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits and will be binding on the [Local Agency] its successors and assigns. The [Local Agency], in consideration of the conveyance of said lands and interests in lands, does hereby covenant and agree as a covenant running with the land for itself, its successors and assigns, that (1) no person wi ll on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination with regard to any facility located wholly or in part on, over, or under such lands hereby conveyed [,] [and]* (2) that the [Local Agency] will use the lands and interests in lands and interests in lands so conveyed, in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation, Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations and Acts may be amended [, and (3) that in the event of breach of any of the above-mentioned non-discrimination conditions, the Department will have a right to enter or re-enter said lands and facilities on said land, and that above described land and facilities will thereon revert to and v est in and become the absolute property of the U.S. Department of Transportation and its assigns as such interest existed prior to this instruction].* (*Reverter clause and related language to be used only when it is determined that such a clause is neces sary in order Page 89 of 202 Exhibit J - Page 9 of 11 APPENDIX C CLAUSES FOR TRANSFER OF REAL PROPERTY ACQUIRED OR IMPROVED UNDER THE ACTIVITY, FACILITY, OR PROGRAM The following clauses will be included in deeds, licenses, leases, permits, or similar instruments entered into by the [Local Agency] pursuant to the provisions of Assurance 7(a): A. The (grantee, lessee, permittee, etc. as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree [in the case of deeds and leases add "as a covenant running with the land"] that: 1. In the event facilities are constructed, maintained, or otherwise operated on the property described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S. Department of Transportation activity, facility, or program is extended or for another purpose involving the provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.) will maintain and operate such facilities and services in compliance with all requirements imposed by the Acts and Regulations (as may be amended) such that no person on the grounds of race, color, or national origin, will be excluded from par ticipation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities. B. With respect to licenses, leases, permits, etc., in the event of breach of any of the above Non-discrimination covenants, [Local Agency] will have the right to terminate the (lease, license, permit, etc.) and to enter, re-enter, and repossess said lands and facilities thereon, and hold the same as if the (lease, license, permit, etc.) had never been made or issued.* C. With respect to a deed, in the event of breach of any of the above Non-discrimination covenants, the [Local Agency] will have the right to enter or re-enter the lands and facilities thereon, and the above described lands and facilities will there upon revert to and vest in and become the absolute property of the [Local Agency] and its assigns.* (*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.) Page 90 of 202 Exhibit J - Page 10 of 11 APPENDIX D CLAUSES FOR CONSTRUCTION/USE/ACCESS TO REAL PROPERTY ACQUIRED UNDER THE ACTIVITY, FACILITY OR PROGRAM The following clauses will be included in deeds, licenses, permits, or similar instruments/agreements entered into by [Local Agency] pursuant to the provisions of Assurance 7(b): A. The (grantee, licensee, permittee, etc., as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby co venant and agree (in the case of deeds and leases add, "as a covenant running with the land") that (1) no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under such land, and the furnishing of services thereon, no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, (3) that the (grantee, licensee, lessee, permittee, etc.) will use the premises in compliance with all other requirements imposed by or pursuant to the Acts and Regulations, as a mended, set forth in this Assurance. B. With respect to (licenses, leases, permits, etc.), in the event of breach of any of the above Non- discrimination covenants, [Local Agency] will have the right to terminate the (license, permit, etc., as appropriate) a nd to enter or re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, permit, etc., as appropriate) had never been made or issued.* C. With respect to deeds, in the event of breach of any of the above Non-discrimination covenants, [Local Agency] will there upon revert to and vest in and become the absolute property of [Local Agency] of Transportation and its assigns.* (*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.) Page 91 of 202 Exhibit J - Page 11 of 11 APPENDIX E During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees to comply with the following non-discrimination statutes and authorities; including but not limited to: Pertinent Non-Discrimination Authorities:  Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21.  The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects);  Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of sex);  Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR Part 27;  The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age);  Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex);  The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not);  Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 -12189) as implemented by Department of Transportation regulations at 49 C.F.R. parts 37 and 38;  The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex);  Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations;  Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of Limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonabl e steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);  Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq). Page 92 of 202 Exhibit K - Page 1 of 4 EXHIBIT K, FFATA SUPPLEMENTAL FEDERAL PROVISIONS State of Colorado Supplemental Provisions for Federally Funded Contracts, Grants, and Purchase Orders Subject to The Federal Funding Accountability and Transparency Act of 2006 (FFATA), As Amended Revised as of 3-20-13 The contract, grant, or purchase order to which these Supplemental Provisions are attached has been funded, in whole or in part, with an Award of Federal funds. In the event of a conflict between the provisions of these Supplemental Provisions, the Special Provisions, the contract or any attachments or exhibits incorporated into and made a part of the contract, the provisions of these Supplemental Provisions shall control. 1. Definitions. For the purposes of these Supplemental Provisions, the following terms shall have the meanings ascribed to them below. 1.1. “Award” means an award of Federal financial assistance that a non-Federal Entity receives or administers in the form of: 1.1.1. Grants; 1.1.2. Contracts; 1.1.3. Cooperative agreements, which do not include cooperative research and development agreements (CRDA) pursuant to the Federal Technology Transfer Act of 1986, as amended (15 U.S.C. 3710); 1.1.4. Loans; 1.1.5. Loan Guarantees; 1.1.6. Subsidies; 1.1.7. Insurance; 1.1.8. Food commodities; 1.1.9. Direct appropriations; 1.1.10. Assessed and voluntary contributions; and 1.1.11. Other financial assistance transactions that authorize the expenditure of Federal funds by non-Federal Entities. Award does not include: 1.1.12. Technical assistance, which provides services in lieu of money; 1.1.13. A transfer of title to Federally-owned property provided in lieu of money; even if the award is called a grant; 1.1.14. Any award classified for security purposes; or 1.1.15. Any award funded in whole or in part with Recovery funds, as defined in section 1512 of the American Recovery and Reinvestment Act (ARRA) of 2009 (Public Law 111 -5). 1.2. “Contract” means the contract to which these Supplemental Provisions are attached and includes all Award types in §1.1.1 through 1.1.11 above. 1.3. “Contractor” means the party or parties to a Contract funded, in whole or in part, with Federal financial assistance, other than the Prime Recipient, and includes grantees, subgrantees, Subrecipients, and borrowers. For purposes of Transparency Act reporting, Contractor does not include Vendors. 1.4. “Data Universal Numbering System (DUNS) Number” means the nine-digit number established and assigned by Dun and Bradstreet, Inc. to uniquely identify a business entity. Dun and Bradstreet’s website may be found at: http://fedgov.dnb.com/webform. 1.5. “Entity” means all of the following as defined at 2 CFR part 25, subpart C; 1.5.1. A governmental organization, which is a State, local government, or Indian Tribe; 1.5.2. A foreign public entity; 1.5.3. A domestic or foreign non-profit organization; Page 93 of 202 Exhibit K - Page 2 of 4 1.5.4. A domestic or foreign for-profit organization; and 1.5.5. A Federal agency, but only a Subrecipient under an Award or Subaward to a non -Federal entity. 1.6. “Executive” means an officer, managing partner or any other employee in a management position. 1.7. “Federal Award Identification Number (FAIN)” means an Award number assigned by a Federal agency to a Prime Recipient. 1.8. “FFATA” means the Federal Funding Accountability and T ransparency 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.” 1.9. “Prime Recipient” means a Colorado State agency or institution of higher education that receives an Award. 1.10. “Subaward” means a legal instrument pursuant to which a Prime Recipient of Award funds awards all or a portion of such funds to a Subrecipient, in exchange for the Subrecipient’s support in the performance of all or any portion of the substantive p roject or program for which the Award was granted. 1.11. “Subrecipient” means a non-Federal Entity (or a Federal agency under an Award or Subaward to a non - Federal Entity) receiving Federal funds through a Prime Recipient to support the performance of the Federal project or program for which the Federal funds were awarded. A 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 Subgrantee. 1.12. “Subrecipient Parent DUNS Number” means the subrecipient parent organization’s 9-digit Data Universal Numbering System (DUNS) number that appears in the subrecipient’s System for Award Management (SAM) profile, if applicable. 1.13. “Supplemental Provisions” means these Supplemental Provisions for Federally Funded Contracts, Grants, and Purchase Orders subject to the Federal Funding Accountability and Transparency Act of 2006, As Amended, as may be revised pursuant to ongoing guidance from the relevant Federal or State of Colorado agency or institution of higher education. 1.14. “System for Award Management (SAM)” means the Federal repository into which an Entity must enter the information required under the Transparency Act, which may be found at http://www.sam.gov. 1.15. “Total Compensation” means the cash and noncash dollar value earned by an Executive during the Prime Recipient’s or Subrecipient’s preceding fiscal year and includes the following: 1.15.1. Salary and bonus; 1.15.2. Awards of stock, stock options, and stock appreciation rights, using the dollar amount recognized for financial statement reporting purposes with respect to the fiscal year in accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2005) (FAS 123R), Shared Based Payments; 1.15.3. Earnings for services under non-equity incentive plans, not including group life, health, hospitalization or medical reimbursement plans that do not discriminate in favor of Executives and are available generally to all salaried employees; 1.15.4. Change in present value of defined benefit and actuarial pension plans; 1.15.5. Above-market earnings on deferred compensation which is not tax-qualified; 1.15.6. Other compensation, if the aggregate value of all such other compensation (e.g. severance, termination payments, value of life insurance paid on behalf of the employee, perquisites or property) for the Executive exceeds $10,000. 1.16. “Transparency Act” means the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109-282), as amended by §6202 of Public Law 110-252. The Transparency Act also is referred to as FFATA. 1.17 “Vendor” means a dealer, distributor, merchant or other seller providing property or services required for a project or program funded by an Award. A Vendor is not a Prime Recipient or a Subrecipient and is not subject to the terms and conditions of the Federal award. Program compliance requirements do not pass through to a Vendor. Page 94 of 202 Exhibit K - Page 3 of 4 2. Compliance. Contractor shall comply with all applicable provisions of the Transparency Act and the regulations issued pursuant thereto, including but not limited to these Supplemental Provisions. Any revisions to such provisions or regulations shall automatically become a part of these Supplemental Provisions, without the necessity of either party executing any further instrument. The State of Colorado may provide written notification to Contractor of such revisions, but such notice shall not be a condition precedent to the effectiveness of such revisions. 3. System for Award Management (SAM) and Data Universal Numbering System (DUNS) Requirements. 3.1. SAM. Contractor shall maintain the currency of its information in SAM until the Contractor submits the final financial report required under the Award or receives final payment, whichever is later. Contractor shall review and update SAM information at least annually after the initial registrati on, and more frequently if required by changes in its information. 3.2. DUNS. Contractor shall provide its DUNS number to its Prime Recipient, and shall update Contractor’s information in Dun & Bradstreet, Inc. at least annually after the initial registration, and more frequently if required by changes in Contractor’s information. 4. Total Compensation. Contractor shall include Total Compensation in SAM for each of its five most highly compensated Executives for the preceding fiscal year if: 4.1. The total Federal funding authorized to date under the Award is $25,000 or more; and 4.2. In the preceding fiscal year, Contractor received: 4.2.1. 80% or more of its annual gross revenues from Federal procurement contracts and subcontracts and/or Federal financial assistance Awards or Subawards subject to the Transparency Act; and 4.2.2. $25,000,000 or more in annual gross revenues from Federal procurement contracts and subcontracts and/or Federal financial assistance Awards or Subawards subject to the Transparency Act; and 4.3. The public does not have access to information about the compensation of such Executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d) or § 6104 of the Internal Revenue Code of 1986. 5. Reporting. Contractor shall report data elements to SAM and to the Prime Recipient as required in §7 below if Contractor is a Subrecipient for the Award pursuant to the Transparency Act. No direct payment shall be made to Contractor for providing any reports required under these Supplemental Provisions and the cost of producing such reports shall be included in the Contract price. The reporting requirements in §7 below are based on guidance from the US Office of Management and Budget (OMB), and as such are subject to change at any time by OMB. Any such changes shall be automatically incorporated into this Contract and shall become part of Contractor’s obligations under this Contract, as provided in §2 above. The Colorado Office of the State Controller will provide summaries of revised OMB reporting requirements at http://www.colorado.gov/dpa/dfp/sco/FFATA.htm. 6. Effective Date and Dollar Threshold for Reporting. The effective date of these Supplemental Provisions apply to new Awards as of October 1, 2010. Reporting requir ements in §7 below apply to new Awards as of October 1, 2010, if the initial award is $25,000 or more. If the initial Award is below $25,000 but subsequent Award modifications result in a total Award of $25,000 or more, the Award is subject to the reporti ng requirements as of the date the Award exceeds $25,000. If the initial Award is $25,000 or more, but funding is subsequently de-obligated such that the total award amount falls below $25,000, the Award shall continue to be subject to the reporting requirements. 7. Subrecipient Reporting Requirements. If Contractor is a Subrecipient, Contractor shall report as set forth below. Page 95 of 202 Exhibit K - Page 4 of 4 7.1 ToSAM. A Subrecipient shall register in SAM and report the following data elements in SAM for each Federal Award Identification Number no later than the end of the month following the month in which the Subaward was made: 7.1.1 Subrecipient DUNS Number; 7.1.2 Subrecipient DUNS Number + 4 if more than one electronic funds transfer (EFT) account; 7.1.3 Subrecipient Parent DUNS Number; 7.1.4 Subrecipient’s address, including: Street Address, City, State, Country, Zip + 4, and Congressional District; 7.1.5 Subrecipient’s top 5 most highly compensated Executives if the criteria in §4 above are met; and 7.1.6 Subrecipient’s Total Compensation of top 5 most highly compensated Executives if criteria in §4 above met. 7.2 To Prime Recipient. A Subrecipient shall report to its Prime Recipient, upon the effective date of the Contract, the following data elements: 7.2.1 Subrecipient’s DUNS Number as registered in SAM. 7.2.2 Primary Place of Performance Information, including: Street Address, City, State, Country, Zip code + 4, and Congressional District. 8. Exemptions. 8.1. These Supplemental Provisions do not apply to an individual who receives an Award as a natural person, unrelated to any business or non-profit organization he or she may own or operate in his or her name. 8.2 A Contractor with gross income from all sources of less than $300,000 in the previous tax year is exempt from the requirements to report Subawards and the Total Compensation of its most highly compensated Executives. 8.3 Effective October 1, 2010, “Award” currently means a grant, cooperative agreement, or other arrangement as defined in Section 1.1 of these Special Provisions. On future dates “Award” may include other items to be specified by OMB in policy memoranda available at the OMB Web site; Award also will include other types of Awards subject to the Transparency Act. 8.4 There are no Transparency Act reporting requirements for Vendors. Event of Default. Failure to comply with these Supplemental Provisions shall constitute an event of default under the Contract and the State of Colorado may terminate the Contract upon 30 days prior written notice if 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. Page 96 of 202 Exhibit L - Page 1 of 3 EXHIBIT L, SAMPLE SUBRECIPIENT MONITORING AND RISK ASSESSMENT Page 97 of 202 Exhibit L - Page 2 of 3 Page 98 of 202 Exhibit L - Page 3 of 3 Page 99 of 202 Exhibit M - Page 1 of 5 EXHIBIT M, OMB Uniform Guidance for Federal Awards Subject to The Office of Management and Budget Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (“Uniform Guidance”), Federal Register, Vol. 78, No. 248, 78590 The agreement to which these Uniform Guidance Supplemental Provisions are attached has been funded, in whole or in part, with an award of Federal funds. In the event of a conflict between the provisions of these Supplemental Provisions, the Special Provisions, the agreement or any attachments or exhibits incorporated into and made a part of the agreement, the provisions of these Uniform Guidance Supplemental Provisions shall control. In th e event of a conflict between the provisions of these Supplemental Provisions and the FFATA Supplemental Provisions, the FFATA Supplemental Provisions shall control. 9. Definitions. For the purposes of these Supplemental Provisions, the following terms shall have the meanings ascribed to them below. 9.1. “Award” means an award by a Recipient to a Subrecipient funded in whole or in part by a Federal Award. The terms and conditions of the Federal Award flow down to the Award unless the terms and conditions of the Federal Award specifically indicate otherwise. 2 CFR §200.38 9.2. “Federal Award” means an award of Federal financial assistance or a cost-reimbursement contract under the Federal Acquisition Requirements by a Federal Awarding Agency to a Recipient. “Federal Award” also means an agreement setting forth the terms and conditions of the Federal Award. The term does not include payments to a contractor or payments to an individual that is a beneficiary of a Federal program. 9.3. “Federal Awarding Agency” means a Federal agency providing a Federal Award to a Recipient. 2 CFR §200.37 9.4. “FFATA” means the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109 - 282), as amended by §6202 of Public Law 110 -252. 9.5. “Grant” or “Grant Agreement” means an agreement setting forth the terms and conditions of an Award. The term does not include an agreement that provides only direct Federal cash assistance to an individual, a subsidy, a loan, a loan guarantee, insurance, or acquires property or services for the direct benefit of use of the Federal Awarding Agency or Recipient. 2 CFR §200.51. 9.6. “OMB” means the Executive Office of the President, Office of Management and Budget. 9.7. “Recipient” means a Colorado State department, agency or institution of higher education that receives a Federal Award from a Federal Awarding Agency to carry out an activ ity under a Federal program. The term does not include Subrecipients. 2 CFR §200.86 9.8. “State” means the State of Colorado, acting by and through its departments, agencies and institutions of higher education. 9.9. “Subrecipient” means a non-Federal entity receiving an Award from a Recipient to carry out part of a Federal program. The term does not include an individual who is a beneficiary of such program. 9.10. “Uniform Guidance” means the Office of Management and Budget Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, which supersedes requirements from OMB Circulars A-21, A-87, A-110, and A-122, OMB Circulars A-89, A-102, and A- 133, and the guidance in Circular A-50 on Single Audit Act follow-up. The terms and conditions of the Uniform Guidance flow down to Awards to Subrecipients unless the Uniform Guidance or the terms and conditions of the Federal Award specifically indicate otherwise. 9.11. “Uniform Guidance Supplemental Provisions” means these Supplemental Provisions for Federal Awards subject to the OMB Uniform Guidance, as may be revised pursuant to ongoing guidance from relevant Federal agencies or the Colorado State Controller. 10. Compliance. Subrecipient shall comply with all applicable provisions of the Uniform Guidan ce, including but not limited to these Uniform Guidance Supplemental Provisions. Any revisions to such provisions Page 100 of 202 Exhibit M - Page 2 of 5 automatically shall become a part of these Supplemental Provisions, without the necessity of either party executing any further instrument. The State of Colorado may provide written notification to Subrecipient of such revisions, but such notice shall not be a condition precedent to the effectiveness of such revisions. 11. Procurement Standards. 3.1 Procurement Procedures. Subrecipient shall use its own documented procurement procedures which reflect applicable State, local, and Tribal laws and regulations, provided that the procurements conform to applicable Federal law and the standards identified in the Uniform Guidance, including without limitation, §§200.318 through 200.326 thereof. 3.2 Procurement of Recovered Materials. If Subrecipient is a State Agency or an agency of a political subdivision of a state, its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines. 4. Access to Records. Subrecipient shall permit Recipient and auditors to have access to Subrecipient’s records and financial statements as necessary for Recipient to meet the requirements of §200.331 (Requirements for pass-through entities), §§200.300 (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). 5. Single Audit Requirements. If Subrecipient expends $750,000 or more in Federal Awards during Subrecipient’s fiscal year, Subrecipient shall procure or arrange for a single or program -specific audit conducted for that year in accordance with the provisions of Subpart F-Audit Requirements of the Uniform Guidance, issued pursuant to the Single Audit Act Amendments of 1996, (31 U.S.C. 7501 -7507). 2 CFR §200.501. 5.1 Election. Subrecipient shall have a single audit conducted in accordance with Uniform G uidance §200.514 (Scope of audit), except when it elects to have a program-specific audit conducted in accordance with §200.507 (Program-specific audits). Subrecipient may elect to have a program-specific audit if Subrecipient expends Federal Awards under only one Federal program (excluding research and development) and the Federal program's statutes, regulations, or the terms and conditions of the Federal award do not require a financial statement audit of Recipient. A program-specific audit may not be elected for research and development unless all of the Federal Awards expended were received from Recipient and Recipient approves in advance a program-specific audit. 5.2 Exemption. If Subrecipient expends less than $750,000 in Federal Awards during its fiscal year, Subrecipient shall be exempt from Federal audit requirements for that year, except as 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. 5.3 Subrecipient Compliance Responsibility. Subrecipient shall procure or otherwise arrange for the audit required by Part F of the Uniform Guidance and ensure it is properly performed and submitte d when due in accordance with the Uniform Guidance. Subrecipient shall prepare appropriate financial statements, including the schedule of expenditures of Federal awards in accordance with Uniform Guidance §200.510 (Financial statements) and provide the auditor with access to personnel, accounts, books, records, supporting documentation, and other information as needed for the auditor to perform the audit required by Uniform Guidance Part F-Audit Requirements. 6. Contract Provisions for Subrecipient Contracts. Subrecipient shall comply with and shall include all of the following applicable provisions in all subcontracts entered into by it pursuant to this Grant Agreement. Page 101 of 202 Exhibit M - Page 3 of 5 6.1 Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of “federally assisted construction contract” in 41 CFR Part 60 -1.3 shall include the equal opportunity clause provided under 41 CFR 60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 CFR Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 CFR part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.” “During the performance of this contract, the contractor agrees as follows: (1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause. (2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. (3) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (4) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (5) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with suc h rules, regulations, and orders. (6) In the event of the contractor's non-compliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be canceled, terminated or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Exe cutive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (7) The contractor will include the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States.” 4.2 Davis-Bacon Act. Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non -Federal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 3141-3144, and 3146- Page 102 of 202 Exhibit M - Page 4 of 5 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 agen cy. 4.3 Rights to Inventions Made Under a Contract or Agreement. If the Federal Award meets the definition of “funding agreement” under 37 CFR §401.2 (a) and Subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” Subrecipient must comply with the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency. 4.4 Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251-1387), as amended. Contracts and subgrants of amounts in excess of $150,000 must contain a 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). 4.5 Debarment and Suspension (Executive Orders 12549 and 12689). A contract award (see 2 CFR 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), “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. 4.6 Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or 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. 7. Certifications. Unless prohibited by Federal statutes or regulations, Recipient may require Subrecipient to submit certifications and representations required by Federal statutes or regulations on an annual basis. 2 CFR §200.208. Submission may be required more frequently if Subrecipient fails to meet a requirement of the Federal award. Subrecipient shall certify in writing to the State at the end of the Award t hat the project or activity was completed or the level of effort was expended. 2 CFR §200.201(3). If the required level of activity or effort was not carried out, the amount of the Award must be adjusted. 2. 8. Event of Default. Failure to comply with these Uniform Guidance Supplemental Provisions shall constitute an event of default under the Grant Agreement (2 CFR §200.339) and the State may terminate the Grant upon 30 Page 103 of 202 Exhibit M - Page 5 of 5 days prior written notice if the default remains uncured five calendar days following the termination of the 30 day notice period. This remedy will be in addition to any other remedy available to the State of Colorado under the Grant, at law or in equity. 9. Effective Date. The effective date of the Uniform Guidance is December 26, 2013. 2 CFR §200.110. The procurement standards set forth in Uniform Guidance §§200.317 -200.326 are applicable to new Awards made by Recipient as of December 26, 2015. The standards set forth in Uniform Guidance Subpart F -Audit Requirements are applicable to audits of fiscal years beginning on or after December 26, 2014. 10. Performance Measurement The Uniform Guidance requires completion of OMB -approved standard information collection forms (the PPR). The form focuses on outcomes, as related to the Federal Award Performance Goals that awarding Federal agencies are required to detail in the Awards. Section 200.301 provides guidance to Federal agencies to measure performance in a way that will help the Federal awarding agency and other non-Federal entities to improve program outcomes. The Federal awarding agency is required to provide recipients with clear performance goals, indicators, and milestones (200.210). Also, must require the recipient to relate financial data to performance accomplishments of the Federal award. Page 104 of 202 US-285 & S Broadw ay Interchang e 400 ft N➤➤N © 2020 Google © 2020 Google © 2020 GooglePage 105 of 202 A B C A+B+C D E D+E A+B+C-D-E New Project Fund Bal.Budget World G/L Start Project Carry Fwd.2020 BUDGET Amend REVISED 2020 2020 TOTAL APPROP. Project Task Division PROJECT Year End Date 12/31/2019 Approp.Amendments Notes BUDGET EXPEND.ENCUMB.EXP. AND ENC.BALANCE CITY MANAGER 30 0201 001 0201 Misc. Infrastructure Repairs Ongoing Ongoing 3,710.00 3,710.00 - 3,710.00 30 0201 002 0201 Building Systems Replacement 2014 Ongoing 10,648.70 10,648.70 - 10,648.70 30 0201 004 0201 Branding Monument & Building Signs 2017 134,895.00 134,895.00 3,998.53 19,940.00 23,938.53 110,956.47 SUBTOTAL 149,253.70 - - 149,253.70 3,998.53 19,940.00 23,938.53 125,315.17 COMMUNITY DEVELOPMENT 30 0801 002 0801 Broadway Improvements 2017 63,020.80 63,020.80 - 63,020.80 30 0801 006 0801 2020 Light Rail Corridor & Next Steps Study 2020 241,575.00 241,575.00 6,367.45 6,367.45 235,207.55 SUBTOTAL 304,595.80 - - - 304,595.80 6,367.45 - 6,367.45 298,228.35 PUBLIC WORKS 30 1001 001 1002 Road and Bridge / Bridge Repairs Ongoing Ongoing 811,128.86 1,700,000.00 2,511,128.86 10,007.80 260,984.27 270,992.07 2,240,136.79 30 1001 002 1002 Bridge Repairs 1994 Ongoing 166,256.63 166,256.63 - 166,256.63 30 1001 003 1004 Transportation System Upgrade 1997 Ongoing 268,192.40 200,000.00 468,192.40 177,181.08 77,638.00 254,819.08 213,373.32 30 1001 004 1003 Santa Fe Light Poles 2011 Ongoing 25,000.00 25,000.00 - 25,000.00 30 1001 005 1002 Dartmouth Bridge 2018 2019 1,064,346.69 1,064,346.69 560.00 12,236.59 12,796.59 1,051,550.10 30 1001 006 1002 Street Lights & Furniture Broadway 2016 Ongoing 190,000.00 100,000.00 290,000.00 35,202.25 35,202.25 254,797.75 30 1001 007 1003 Alley Construction 2016 Ongoing 176,918.08 420,000.00 596,918.08 176,918.08 176,918.08 420,000.00 30 1001 008 1001 Concrete Utility - City Share 1998 Ongoing - 300,000.00 300,000.00 - 300,000.00 30 1001 009 1002 US85 Planning and Environmental Linkage 2019 2019 65,000.00 65,000.00 - 65,000.00 30 1001 010 1001 Walk & Wheel Implementation 2019 2019 33,061.25 33,061.25 - 33,061.25 30 1001 011 1001 Broadway Median - Sprinkler electricity repair 2019 2019 256,000.00 256,000.00 - 256,000.00 30 1001 012 1001 Secure Plaza Pond 2019 2019 100,000.00 100,000.00 - 100,000.00 30 1001 013 1001 Signal Equipment Upgrade/Replace 2020 Ongoing 100,000.00 100,000.00 - 100,000.00 30 1001 014 1001 Dartmouth Rail Trail Bridge 2020 600,000.00 600,000.00 - 600,000.00 30 1001 100-01 1001 Oxford Avenue Pedestrian Bridge Grant 2020 - - - 30 1001 100-02 1001 Oxford Avenue Pedestrian Bridge Match 2020 400,000.00 400,000.00 - 400,000.00 30 1001 101-01 1001 Broadway/285 Interchange Grant 2020 - - - 30 1001 101-02 1001 Broadway/285 Interchange Match 2020 1,100,000.00 1,100,000.00 - 1,100,000.00 30 1002 001 1002 Concrete Program - Accessible Ramps 1996 Ongoing 77,951.91 220,000.00 297,951.91 5,543.76 5,543.76 292,408.15 30 1005 002 1005 Jefferson Facility Rehab / Repairs 2016 Ongoing 35,334.26 35,334.26 - 35,334.26 SUBTOTAL 3,269,190.08 5,140,000.00 - 8,409,190.08 187,748.88 568,522.95 756,271.83 7,652,918.25 RECREATION 30 1301 001 1301 Broadway Medians/Lighting/Flower Pots 2016 Ongoing - - 9,960.00 9,960.00 (9,960.00) 30 1301 1308 Golf Course Fiber 2016 0.00 0.00 - 0.00 30 1301 003 1301 Tree Maintenance 2017 4,755.00 4,755.00 - 4,755.00 30 1301 005 1302 ERC Upgrades 2017 1,450,864.46 1,450,864.46 110,329.14 110,329.14 1,340,535.32 30 1301 006 1301 Parking Lots / Asphalt -PW 2017 74,581.79 74,581.79 - 74,581.79 30 1301 007 1301 Concrete Paving Santa Fe & Hampden Medians 2020 450,000.00 450,000.00 - 450,000.00 30 1301 008 1301 Park Planning Design & Project Management 2020 400,000.00 400,000.00 - 400,000.00 SUBTOTAL 0 1,530,201.25 850,000.00 - - 2,380,201.25 - 120,289.14 120,289.14 2,259,912.11 GENERAL GOVERNMENT 1501 Transfer to Capital Projects Fund 2002 Ongoing - 700,000.00 700,000.00 700,000.00 700,000.00 - 1501 Transfer to General Fund 2004 Ongoing - 127,014.00 127,014.00 127,014.00 127,014.00 - SUBTOTAL - 827,014.00 - 827,014.00 827,014.00 - 827,014.00 - - TOTALS 5,253,240.83 6,817,014.00 - 12,070,254.83 1,025,128.86 708,752.09 1,733,880.95 10,336,373.88 198,114.86 PUBLIC IMPROVEMENT FUND PROJECT STATUS AND FUND BALANCE REPORT February 28, 2020 **PRELIMINARY AS OF 3/14/20** PIF-20.xlsx 12:50 PM 3/14/2020Page 106 of 202 A B C A+B+C D E D+E A+B+C-D-E New Project Fund Bal.Budget World G/L Start Project Carry Fwd.2020 BUDGET Amend REVISED 2020 2020 TOTAL APPROP. Project Task Division PROJECT Year End Date 12/31/2019 Approp.Amendments Notes BUDGET EXPEND.ENCUMB.EXP. AND ENC.BALANCE PUBLIC IMPROVEMENT FUND PROJECT STATUS AND FUND BALANCE REPORT February 28, 2020 **PRELIMINARY AS OF 3/14/20** Revenues YTD:Actual Estimate Balance Vehicle Use Tax 216,684.07$ 1,800,000.00$ 1,583,315.93$ Building Use Tax 611,017.07 1,800,000.00 1,188,982.93 County Road and Bridge 190,000.00 190,000.00 Safe Routes to School Grant - - Transfer from General Fund 41,575.00 41,575.00 - Interest 75,494.37 75,000.00 (494.37) Total revenues 944,770.51 3,906,575.00 2,961,804.49 Exp./Enc. Y-T-D 1,733,880.95 12,070,254.83 10,336,373.88 Net Income (789,110.44) (8,163,679.83) FUND BALANCE (1/1/20)8,536,711.18 8,536,711.18 FUND BALANCE 7,747,600.74 373,031.35 Plus: Remaining Revenues 2,961,804.49 Less: Project Approp. Bal.(10,336,373.88) Less: Proj. Bal. adj. for Neg.(9,960.00) (9,960.00) UNAPPROP. FUND BAL. 363,071.35$ 363,071.35$ PIF-20.xlsx 12:50 PM 3/14/2020Page 107 of 202 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Tim Hoos DEPARTMENT: Public Works DATE: June 1, 2020 SUBJECT: CB #20 - Approval of IGA with the Urban Drainage and Flood Control District d/b/a Mile High Flood District for Major Drainageway Planning DESCRIPTION: CB #20 - Approval of IGA with the Urban Drainage and Flood Control District d/b/a Mile High Flood District for Major Drainageway Planning RECOMMENDATION: Staff recommends approval of an ordinance for an Intergovernmental Agreement (IGA) with the Urban Drainage and Flood Control District d/b/a Mile High Flood District (MHFD) for Major Drainageway Planning. PREVIOUS COUNCIL ACTION: This project has been reviewed with City Council as a part of the Storm Water Program Master Plan reviews on February 10 and March 9, 2020. SUMMARY: City staff applied for Mile High Flood District (MHFD) funding to manage and participate in the cost of updating the City's Major Drainageway Plan (MDP) document. The last update to the document was in 1999. The MHFD will manage and oversee the project including hiring an engineering consultant to complete the detailed engineering work and prepare the final report. In order for MHFD to proceed with the update, the City must enter into an IGA with MHFD. The updated MDP will be a detailed study of the City's drainageways using current hydrology and hydraulic information and design methodology. This work will build upon the work recently completed by Calibre Engineering. The results of the study will be used by MHFD and the city to identify future funding needs and will assist in prioritizing future storm water project phasing. ANALYSIS: The MDP document is the drainageway master plan document that MHFD uses to prioritize and allocate funding to the City for storm drainage improvement projects. Having an updated document not only provides more detailed information and prioritization of future storm drainage projects but also allows the City to be eligible for MHFD funding for the improvements recommended in the report. FINANCIAL IMPLICATIONS: Page 108 of 202 The total cost to update the document is not expected to exceed $200,000. MHFD awarded the City $100,000 for this effort with the City contributing the other half of the total cost. Funding for this work is available in the Storm Drainage Fund Professional Services budget G/L account number 42-1606-54201 that was made available through the $3,000,000 loan to the Storm Drainage Fund. ALTERNATIVES: The alternative would be to continue to rely on the 1999 report for prioritization of work in the city. The 1999 report does not have updated hydrology and hydraulic design information nor does it reflect current City storm drainage improvement priorities. This means that MHFD funding would not be available for current City storm drainage priorities. CONCLUSION: Staff recommends that the City Council approve a Bill for an Ordinance to enter into an Intergovernmental Agreement with the Mile High Flood District to contract and manage the update to the City's Major Drainageway Plan. ATTACHMENTS: Council Bill #20 Intergovernmental Agreement Page 109 of 202 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. 20 SERIES OF 2020 INTRODUCED BY COUNCIL MEMBER WINK AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT (IGA) “AGREEMENT REGARDING FUNDING OF MAJOR DRAINAGEWAY PLANNING FOR CITY OF ENGLEWOOD” - AGREEMENT NO. 20-02.11 PROJECT NO. 108025, BETWEEN THE URBAN DRAINAGE AND FLOOD CONTROL DISTRICT AND THE CITY OF ENGLEWOOD. WHEREAS, the District in a policy statement previously adopted (Resolution No. 14, Series of 1970), expressed an intent to assist public bodies which have heretofore enacted floodplain zoning measures; WHEREAS, the District has previously established a Work Program for 2020 (Resolution No. 64, Series of 2019) which includes master planning; WHEREAS, the Parties now desire to proceed with development of a Drainage Way Master Plan report for the City of Englewood (hereinafter called "Project"); WHEREAS, the District’s Board of Directors has authorized District financial participation for Project (Urban Drainage and Flood Control District - Resolution No. 45, Series of 2020); WHEREAS, the Parties desire to acquire mapping needed to conduct the engineering studies for Project; WHEREAS, the Parties desire to engage an engineer to render certain technical and professional advice and to compile information, evaluate, study, and recommend design solutions to such drainage problems for Project which are in the best interest of Parties; WHEREAS, the cost of the master plan is $200,000 dollars with Englewood’s share being $100,000 dollars, and coming from the Storm Water Fund 42-1607-54201 – Professional Services. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. The City Council of Englewood, Colorado, hereby approves the Intergovernmental Agreement Regarding Funding of Major Drainage Way Planning for City of Englewood – Agreement No. 20-01.11 Project No. 108025, between the Urban Drainage and Flood Control District and the City of Englewood, a copy of which is attached hereto as Exhibit 1. Page 110 of 202 2 Section 2. The Mayor and City Clerk are hereby authorized to sign and attest, the agreement regarding Funding of Major Drainage Way Planning for the City of Englewood, for and on behalf of the City Council of the City of Englewood, Colorado. Section 3. There are no federal funds being used by Englewood on this Project. Introduced, read in full, and passed on first reading on the 18th day of May, 2020. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 21st day of May, 2020 Published as a Bill for an Ordinance on the City’s official website beginning on the 20th day of May, 2020 for thirty (30) days. Read by Title and passed on final reading on the 1st day of June, 2020. Published by Title in the City’s official newspaper as Ordinance No. ___, Series of 2020, on the 4th day of June, 2020 Published by title on the City’s official website beginning on the 3rd day of June, 2020 for thirty (30) days. This Ordinance shall take effect thirty (30) days after publication following final passage. Linda Olson, Mayor ATTEST: Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Ordinance passed on final reading and published by Title as Ordinance No. ___, Series of 2020. Stephanie Carlile Page 111 of 202 Agreement No. 20-02.11 Project No. 108025 1 AGREEMENT REGARDING FUNDING OF MAJOR DRAINAGEWAY PLANNING FOR CITY OF ENGLEWOOD Agreement No. 20-02.11 Project No. 108025 Agreement Amount $200,000 THIS AGREEMENT, by and between URBAN DRAINAGE AND FLOOD CONTROL DISTRICT (hereinafter called "DISTRICT") and CITY OF ENGLEWOOD (hereinafter called "ENGLEWOOD"); (hereinafter ENGLEWOOD shall be known as "PROJECT SPONSOR" and DISTRICT and PROJECT SPONSOR shall be collectively known as "PARTIES"); WITNESSETH THAT: WHEREAS, DISTRICT in a policy statement previously adopted (Resolution No. 14, Series of 1970), expressed an intent to assist public bodies which have heretofore enacted floodplain zoning measures; and WHEREAS, DISTRICT has previously established a Work Program for 2020 (Resolution No. 64, Series of 2019) which includes master planning; and WHEREAS, PARTIES now desire to proceed with development of a drainageway master plan report for the City of Englewood (hereinafter called "PROJECT"); and WHEREAS, DISTRICT’s Board of Directors has authorized DISTRICT financial participation for PROJECT (Resolution No. 45, Series of 2020); and WHEREAS, PARTIES desire to acquire mapping needed to conduct the engineering studies for PROJECT; and WHEREAS, PARTIES desire to engage an engineer to render certain technical and professional advice and to compile information, evaluate, study, and recommend design solutions to such drainage problems for PROJECT which are in the best interest of PARTIES. NOW, THEREFORE, in consideration of the mutual promises contained herein, PARTIES hereto agree as follows: 1. SCOPE OF AGREEMENT This Agreement defines the responsibilities and financial commitments of PARTIES with respect to PROJECT. 2. PROJECT AREA DISTRICT shall engage an engineer and obtain mapping as needed to perform or supply necessary services in connection with and respecting the planning of PROJECT of the area and watershed shown on the attached Exhibit A dated March 26, 2020 (hereinafter called "AREA"). 3. SCOPE OF PROJECT The purpose of PROJECT is to develop a drainageway master plan, including hydrologic information and the locations, alignments, and sizing of storm sewers, channels, detention/retention basins, and other facilities and appurtenances needed to provide efficient stormwater drainage Page 112 of 202 Agreement No. 20-02.11 Project No. 108025 2 within AREA. The proposed work shall include, but not be limited to, mapping; compilation of existing data; necessary field work; and development and consistent evaluation of all reasonable alternatives so that the most feasible drainage and flood control master plan can be determined and justified for AREA. Consideration shall be given to costs, existing and proposed land use, existing and proposed drainage systems, known drainage or flooding problems, known or anticipated erosion problems, stormwater quality, right-of-way needs, existing wetlands and riparian zones, open space and wildlife habitat benefits, and legal requirements. Schematic alternative plans shall be developed such that comparison with other alternatives can be made. Drainage system planning shall be done in three phases by the engineer engaged by DISTRICT, culminating in a drainage master plan report. During the first phase, the selected engineer shall perform all data gathering and modeling needed to prepare the baseline hydrology section of the master plan report containing an introduction, study area description and hydrologic analysis description. During the second phase, the engineer shall perform all studies and data gathering needed to prepare the alternatives analysis sections of the master plan report containing a hydraulic analysis discussion, schematics of alternatives developed and their costs along with a discussion of the pros and cons of each alternative and a recommended plan. A single alternative will be selected by PARTIES after the review and evaluation of the alternatives analysis report. During the third phase, the engineer shall be directed to prepare a conceptual design for the selected alternative and prepare the conceptual design section of the master plan report. 4. PUBLIC NECESSITY PARTIES agree that the work performed pursuant to this Agreement is necessary for the health, safety, comfort, convenience, and welfare of all the people of the State, and is of particular benefit to the inhabitants of PARTIES and to their property therein. 5. PROJECT COSTS PARTIES agree that for the purposes of this Agreement PROJECT costs shall consist of, and be limited to, mapping, master planning, and contingencies mutually agreeable to PARTIES. Project costs are estimated not to exceed $200,000. 6. FINANCIAL COMMITMENTS OF PARTIES PARTIES shall each contribute the following percentages and maximum amounts for PROJECT costs as defined in Paragraphs 5: Master Plan Maximum Percentage Share Contribution DISTRICT 50.00% $100,000 ENGLEWOOD 50.00% $100,000 TOTAL 100.00% $200,000 Each PARTY’S payment obligation, whether direct or contingent, extends only to funds appropriated annually by each PARTY’S governing body, paid into the treasury of that PARTY, and encumbered for the purpose of this AGREEMENT. Each PARTY does not by this Agreement Page 113 of 202 Agreement No. 20-02.11 Project No. 108025 3 irrevocably pledge present cash reserves for payment or performance in future fiscal years. This Agreement does not and is not intended to create a multiple-fiscal year direct or indirect debt or financial obligation of each PARTY. 7. MANAGEMENT OF FINANCES As set forth in DISTRICT policy (Resolution No. 11, Series of 1973, Resolution No. 49, Series of 1977, and Resolution No. 37, Series of 2009), the funding of a local body's one-half share may come from its own revenue sources or from funds received from state, federal, or other sources of funding without limitation and without prior DISTRICT approval. Payment of each party's full share (CITY - $100,000; DISTRICT - $100,000) shall be made to DISTRICT subsequent to execution of this Agreement and within 30 days of request for payment by DISTRICT. The payments by PARTIES shall be held by DISTRICT in a special fund to pay for increments of PROJECT as authorized by PARTIES, and as defined herein. DISTRICT shall provide a periodic accounting of PROJECT funds as well as a periodic notification to CITY of any unpaid obligations. Any interest earned by the monies contributed by PARTIES shall be accrued to the special fund established by DISTRICT for PROJECT and such interest shall be used only for PROJECT upon approval by the contracting officers (Paragraph 13). Within one year of completion of PROJECT if there are monies including interest earned remaining which are not committed, obligated, or disbursed, each party shall receive a share of such monies, which shares shall be computed as were the original shares; or, at CITY request, CITY share of remaining monies shall be transferred to another special fund held by DISTRICT. 8. PROJECT MAPPING Upon execution of this Agreement DISTRICT will solicit priced proposals for mapping services and engage the mapping firm submitting the lowest priced proposal that is also judged by DISTRICT to be responsible and qualified to perform the work. DISTRICT reserves the right to reject any proposal and to waive any formal requirements during the evaluation of the proposals. DISTRICT will administer the contract with the mapping firm. The mapping services contracted by DISTRICT will provide for topographic mapping at a two-foot contour interval and a scale of 1-inch = 100-feet. 9. MASTER PLANNING Upon execution of this Agreement, PARTIES shall select an engineer mutually agreeable to PARTIES. DISTRICT, with the approval of PROJECT SPONSOR, shall contract with the selected engineer, shall administer the contract, and shall supervise and coordinate the planning for the development of alternatives and of conceptual design. 10. PUBLISHED REPORTS AND PROJECT DATA DISTRICT will provide to PROJECT SPONSOR access to the draft and final electronic report files. Page 114 of 202 Agreement No. 20-02.11 Project No. 108025 4 Upon completion of PROJECT, electronic files of all mapping, drawings, and hydrologic and hydraulic calculations developed by the engineer contracted for PROJECT shall be provided to PROJECT SPONSOR upon request. 11. TERM OF THE AGREEMENT The term of this Agreement shall commence upon the execution by all PARTIES and shall terminate two years after the final master planning report is delivered to DISTRICT and the final accounting of funds on deposit at DISTRICT is provided to all PARTIES pursuant to Paragraph 7 herein. 12. LIABILITY Each party hereto shall be responsible for any suits, demands, costs or actions at law resulting from its own acts or omissions and may insure against such possibilities as appropriate. 13. CONTRACTING OFFICERS A. The contracting officer for PROJECT SPONSOR shall be the Capital Projects Administrator, 1000 Englewood Parkway, Englewood, CO 80110. B. The contracting officer for DISTRICT shall be the Executive Director, 2480 West 26th Avenue, Suite 156B, Denver, Colorado 80211. C. The contracting officers for PARTIES each agree to designate and assign a PROJECT representative to act on the behalf of said PARTIES in all matters related to PROJECT undertaken pursuant to this Agreement. Each representative shall coordinate all PROJECT- related issues between PARTIES, shall attend all progress meetings, and shall be responsible for providing all available PROJECT-related file information to the engineer upon request by DISTRICT or PROJECT SPONSOR. Said representatives shall have the authority for all approvals, authorizations, notices, or concurrences required under this Agreement. However, in regard to any amendments or addenda to this Agreement, said representative shall be responsible to promptly obtain the approval of the proper authority. 14. RESPONSIBILITIES OF PARTIES DISTRICT shall be responsible for coordinating with PROJECT SPONSOR the information developed by the various consultants hired by DISTRICT and for obtaining all concurrences from PROJECT SPONSOR needed to complete PROJECT in a timely manner. PROJECT SPONSOR agrees to review all draft reports and to provide comments within 21 calendar days after the draft reports have been provided by DISTRICT to PROJECT SPONSOR. PROJECT SPONSOR also agrees to evaluate the alternatives presented in the alternatives analysis sections of the report, to select an alternative, and to notify DISTRICT of their decision(s) within 30 calendar days after the alternatives analysis report is provided to PROJECT SPONSOR by DISTRICT. 15. AMENDMENTS This Agreement contains all of the terms agreed upon by and among PARTIES. Any amendments to this Agreement shall be in writing and executed by PARTIES hereto to be valid and binding. Page 115 of 202 Agreement No. 20-02.11 Project No. 108025 5 16. SEVERABILITY If any clause or provision herein contained shall be adjudged to be invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable law, such invalid or unenforceable clause or provision shall not affect the validity of the Agreement as a whole and all other clauses or provisions shall be given full force and effect. 17. APPLICABLE LAWS This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. Jurisdiction for any and all legal actions regarding this Agreement shall be in the State of Colorado and venue for the same shall lie in the County where the Project is located. 18. ASSIGNABILITY No party to this Agreement shall assign or transfer any of its rights or obligations hereunder without the prior written consent of the nonassigning party or parties to this Agreement. 19. BINDING EFFECT The provisions of this Agreement shall bind and shall inure to the benefit of PARTIES hereto and to their respective successors and permitted assigns. 20. ENFORCEABILITY PARTIES hereto agree and acknowledge that this Agreement may be enforced in law or in equity, by decree of specific performance or damages, or such other legal or equitable relief as may be available subject to the provisions of the laws of the State of Colorado. 21. TERMINATION OF AGREEMENT This Agreement may be terminated upon thirty (30) days’ written notice by any party to this Agreement, but only if there are no contingent, outstanding contracts. If there are contingent, outstanding contracts, this Agreement may only be terminated upon the cancellation of all contingent, outstanding contracts. All costs associated with the cancellation of the contingent contracts shall be shared between PARTIES in the same ratio(s) as were their contributions. 22. PUBLIC RELATIONS It shall be at PROJECT SPONSOR’s sole discretion to initiate and to carry out any public relations program to inform the residents in PROJECT area as to the purpose of PROJECT and what impact it may have on them. Technical information shall be presented to the public by the selected engineer. In any event DISTRICT shall have no responsibility for a public relations program, but shall assist PROJECT SPONSOR as needed and appropriate. 23. GOVERNMENTAL IMMUNITIES The PARTIES hereto intend that nothing herein shall be deemed or construed as a waiver by any PARTY of any rights, limitations, or protections afforded to them under the Colorado Governmental Immunity Act (§ 24-10-101, et seq., C.R.S.) as now or hereafter amended or otherwise available at law or equity. Page 116 of 202 Agreement No. 20-02.11 Project No. 108025 6 24. NO DISCRIMINATION IN EMPLOYMENT In connection with the performance of work under this Agreement, PARTIES agree not to refuse to hire, discharge, promote or demote, or to discriminate in matters of compensation against any person otherwise qualified on the basis of race, color, ancestry, creed, religion, national origin, gender, age, military status, sexual orientation, marital status, or physical or mental disability and further agrees to insert the foregoing provision in all subcontracts hereunder. 25. APPROPRIATIONS Notwithstanding any other term, condition, or provision herein, each and every obligation of PROJECT SPONSOR and/or DISTRICT stated in this Agreement is subject to the requirement of a prior appropriation of funds therefore by the appropriate governing body of PROJECT SPONSOR and/or DISTRICT. 26. NO THIRD PARTY BENEFICIARIES It is expressly understood and agreed that enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to PARTIES, and nothing contained in this Agreement shall give or allow any such claim or right of action by any other or third person on such Agreement. It is the express intention of PARTIES that any person or party other than PROJECT SPONSOR or DISTRICT receiving services or benefits under this Agreement shall be deemed to be an incidental beneficiary only. 27. ILLEGAL ALIENS A. PARTIES agree that any public contract for services executed as a result of this intergovernmental agreement shall prohibit the employment of illegal aliens in compliance with §8-17.5-101 C.R.S. et seq. The following language shall be included in any contract for public services: 1. At the time of execution of this Agreement, CONTRACTOR does not knowingly employ or contract with an illegal alien who will perform work under this Agreement. 2. CONTRACTOR shall participate in the E-Verify Program, as defined in § 8 17.5- 101(3.7), C.R.S., to confirm the employment eligibility of all employees who are newly hired for employment to perform work under this Agreement. 3. CONTRACTOR shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. 4. CONTRACTOR shall not enter into a contractor with a subconsultant or subcontractor that fails to certify to CONTRACTOR that it shall not knowingly employ or contact with an illegal alien to perform work under this Agreement. 5. CONTRACTOR shall confirm the employment eligibility of all employees who are newly hired for employment to perform work under this Agreement through participation in the E-Verify Program. 6. CONTRACTOR is prohibited from using the E-Verify Program procedures to undertake pre-employment screening of job applicants while performing its obligation Page 117 of 202 Agreement No. 20-02.11 Project No. 108025 7 under this Agreement, and that otherwise requires CONTRACTOR to comply with any and all federal requirements related to use of the E-Verify Program including, by way of example, all program requirements related to employee notification and preservation of employee rights. 7. If CONTRACTOR obtains actual knowledge that a subconsultant or subcontracctor performing work under this Agreement knowingly employs or contract with an illegal alien, it will notify such subconsultant or subcontractor and PARTIES within three (3) days. CONTRACTOR shall also then terminate such subconsultant or subcontractor if within three (3) days after such notice the subconsultant or subcontractor does not stop employing or contracting with the illegal alien, unless during such three (3) day period the subconsultant or subcontractor provides information to establish that the subconsultant or subcontractor has not knowingly employed or contracted with an illegal alien. 8. CONTRACTOR shall comply with any reasonable request made in the course of an investigation by the Colorado Department of Labor and Employment under authority of § 8-17.5-102(5), C.R.S 9. CONTRACTOR shall, within twenty days after hiring an employee who is newly hired for employment to perform work under this Agreement, affirms that it has examined the legal work status of such employees, retained file copies of the documents required by 8 U.S.C. Section 1324a, and not altered or falsified the identification documents for such employees. CONTRACTOR shall provide a written, notarized copy of the affirmation to PARTIES. 28. EXECUTION IN COUNTERPARTS – ELECTRONIC SIGNATURES This Agreement, and all subsequent documents requiring the signatures of PARTIES to this Agreement, may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. PARTIES approve the use of electronic signatures for execution of this Agreement, and all subsequent documents requiring the signatures of PARTIES to this Agreement. Only the following two forms of electronic signatures shall be permitted to bind PARTIES to this Agreement, and all subsequent documents requiring the signatures of PARTIES to this Agreement. A. Electronic or facsimile delivery of a fully executed copy of a signature page; or B. The image of the signature of an authorized signer inserted onto PDF format documents. Documents requiring notarization may also be notarized by electronic signature, as provided above. All use of electronic signatures shall be governed by the Colorado Uniform Electronic Transactions Act, §§ 24-71.3-101-121, C.R.S. WHEREFORE, PARTIES hereto have caused this instrument to be executed by properly authorized signatories as of the date and year written below. Page 118 of 202 Agreement No. 20-02.11 Project No. 108025 8 URBAN DRAINAGE AND FLOOD CONTROL DISTRICT D/B/A MILE HIGH FLOOD DISTRICT By ___________ Name Ken A. MacKenzie Checked By Title Executive Director Date CITY OF ENGLEWOOD By Name Title Date Page 119 of 202 AGREEMENT REGARDING FUNDING OF MAJOR DRAINAGEWAY PLANNING FOR CITY OF ENGLEWOOD Agreement No. 20-02.11 Project No. 108025 Agreement Amount $200,000 Page 120 of 202 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Margaret Brocklander DEPARTMENT: Information Technology DATE: June 1, 2020 SUBJECT: CB 22 - Ordinance to submit a ballot issue to electors, re: C.R.S 29-27-101 et seq DESCRIPTION: CB 22 - Ordinance to submit a ballot issue to electors, re: C.R.S 29-27-101 et seq RECOMMENDATION: Staff requests City Council consider and approve at first reading an ordinance to submit a ballot issue to electors allowing the City to opt out of C.R.S. 29-27-101, et seq., an action that would exempt Englewood from State limitations on provision of broadband services. PREVIOUS COUNCIL ACTION: On May 18, 2020, at the regularly scheduled study session, Margaret Brocklander, Director of Information Technology, provided the City Council with information regarding the statutory limitations within C.R.S. 29-27-101, et seq, and explained how the provisions of that statute could be interpreted to prohibit the City from providing public access to WiFi in public places, including the parks, library, and future planned outdoor public areas. SUMMARY: A voter-approved exemption from C.R.S. 29-27-101 et seq, would restore the Through 2005. to prior had and that autonomy cable a telecommunications Englewood successful C.R.S. 29-27-101 et seq, election, the city will have the option to provide a wide spectrum of services, including: • free Internet service in city facilities, parks and community centers; • leverage government infrastructure and partner with private businesses to provide affordable and high-speed Internet service throughout the community; and • future options of partnering with private businesses to provide broadband services throughout the community. ANALYSIS: Prior to 2005, local governments had authority to construct communications networks, and to use those networks for whatever purposes deemed appropriate by the local governing body. In 2005, at the urging of telecommunications service providers, the General Assembly passed SB- 152 (codified at C.R.S. §29-27-101, et seq.). The statute prohibits local governments from providing cable, telecommunications or advanced services (basically defined as anything slightly faster than dial-up) with limited exceptions. C.R.S. 29-27-101 et seq. does not simply prohibit a local government from being a communications service provider. The statute broadly defines the provision of service to include entering into public-private partnerships, where a local government might lease conduit or fiber to private companies to utilize in their own networks, Page 121 of 202 when those companies sell services to end users. With limited exceptions, these public-private partnerships are also prohibited by the statute. Even the provision of WiFi service in government buildings is technically prohibited by the statute. In the fifteen years since this State law was enacted more than 100 municipalities have successfully passed questions related to exempting out from the restrictions of C.R.S. 29-27- 101 et seq. in order to better serve the needs of their communities. C.R.S. 29-27-201 provides in pertinent part: Before a local government may engage or offer to engage in providing cable television service, telecommunications service, or advanced service, an election shall be called on whether or not the local government shall provide the proposed cable television service, telecommunications service, or advanced service. The provisions of a ballot measure would include references to the following concerns: 1. Without increasing taxes, 2. Authorize the City to provide, either directly or indirectly, all services restricted since 2005 by Title 29, Article 27 of the Colorado Revised Statutes, 3. Describe the possible services as high-speed internet, telecommunication services, and/or cable televisions services, 4. With the goal of enhancing economic development and improving high bandwidth services, 5. Benefiting residents, businesses, schools, libraries, nonprofit entities and other users of such services, 6. With no limitation upon existing home rule authority. FINANCIAL IMPLICATIONS: None initially, other than the general costs associated with an election. The financial implications of any proposed projects considered in accordance with this ballot measure would have to be evaluated on a project-by-project basis. ALTERNATIVES: Status Quo, possibly removing public WiFi access from public spaces. CONCLUSION: With voter approval, Englewood would be exempted from the state law that otherwise limits the city from improving the community’s broadband capabilities, and providing access to WiFi in public spaces. ATTACHMENTS: Page 122 of 202 Ordinance regarding Ballot measure to exempt out from C.R.S. 29-27-101 C.R.S. 29-27-101 et seq, as originally adopted in 2005 as Senate Bill 152 Page 123 of 202 1 BY AUTHORITY ORDINANCE NO. ____ SERIES OF 2020 COUNCIL BILL NO. 22 INTRODUCED BY COUNCIL MEMBER __________ A BILL FOR AN ORDINANCE SUBMITTING TO A VOTE OF THE REGISTERED ELECTORS OF THE CITY OF ENGLEWOOD AT THE NOVEMBER 3, 2020 GENERAL ELECTION A BALLOT ISSUE TO AUTHORIZE, BUT NOT OBLIGATE, THE CITY OF ENGLEWOOD, WITHOUT INCREASING TAXES, TO PROVIDE HIGH-SPEED INTERNET SERVICES (ADVANCED SERVICES), TELECOMMUNICATION SERVICES, AND/OR CABLE TELEVISION SERVICES AS DEFINED BY ARTICLE 27 OF TITLE 29 OF THE COLORADO REVISED STATUTES. WHEREAS, this bill for an ordinance would submit to the registered voters of the City of Englewood a ballot question regarding authorizing, but not obligating, the City of Englewood to provide high-speed internet services (advanced services), telecommunication services, and/or cable television services as defined by Article 27 of Title 29 of the Colorado Revised Statutes, including but not limited to, any new and improved high bandwidth services based on future technologies, to residents, businesses, schools, libraries, nonprofit entities, and other users of such services, either directly, or indirectly with or without public and/or private sector partners, without limiting its home rule authority; and WHEREAS, C.R.S. 29-27-101 provides that cable television service, telecommunications service, and high-speed internet access (a.k.a. advanced service) are a matter of statewide concern; WHEREAS, C.R.S. 29-27-201 allows local governments to submit to its voters a ballot measure exempting such local government from the limits of Title 29, Article 27, and WHEREAS, C.R.S. 29-27-201 requires that the ballot measure shall pose the question as a single subject and shall include a description of the nature of the proposed service, the role that the local government will have in provision of the service, and the intended subscribers of such service. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section 1. The following ballot issue shall be submitted to the registered electors of the City of Englewood at the general election on November 3, 2020: SHALL THE CITY OF ENGLEWOOD, WITHOUT INCREASING TAXES, BE AUTHORIZED BUT NOT OBLIGATED TO PROVIDE HIGH-SPEED INTERNET SERVICES (ADVANCED SERVICES), TELECOMMUNICATION SERVICES, Page 124 of 202 2 AND/OR CABLE TELEVISION SERVICES AS DEFINED BY ARTICLE 27 OF TITLE 29 OF THE COLORADO REVISED STATUTES, INCLUDING BUT NOT LIMITED TO, ANY NEW AND IMPROVED HIGH BANDWIDTH SERVICES BASED ON FUTURE TECHNOLOGIES, TO RESIDENTS, BUSINESSES, SCHOOLS, LIBRARIES, NONPROFIT ENTITIES, AND OTHER USERS OF SUCH SERVICES WITHIN THE BOUNDARIES OF THE CITY, EITHER DIRECTLY OR INDIRECTLY, WITH OR WITHOUT PUBLIC AND/OR PRIVATE SECTOR PARTNERS, WITHOUT LIMITING ITS HOME RULE AUTHORITY? YES __ NO __ Section 2. For purposes of C.R.S. § 1-11-203.5, this Ordinance shall serve to set the title and content of the ballot issue set forth herein and the ballot title for such question shall be the text of the question itself. Section 3. If any section, paragraph, clause, or other portion of this Ordinance is for any reason held to be invalid or unenforceable, the invalidity or unenforceability shall not affect any of the remaining portions of this Ordinance. Introduced, read in full, and passed on first reading on the 1st day of June, 2020. Published by Title as a Bill for an Ordinance in the City's official newspaper on the 4th day of June, 2020. _______________________________ Linda Olson, Mayor ATTEST: ______________________________ Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Bill for Ordinance introduced, read in full, and passed on first reading on the 1st day of June, 2020. ______________________________ Stephanie Carlile, City Clerk Page 125 of 202 ________ Capital letters indicate new material added to existing statutes; dashes through words indicate deletions from existing statutes and such material not part of act. SENATE BILL 05-152 BY SENATOR(S) Veiga, and Mitchell; also REPRESENTATIVE(S) Jahn, Crane, Harvey, Kerr, and Sullivan. CONCERNING LOCAL GOVERNMENT COMPETITION IN THE PROVISION OF SPECIFIED COMMUNICATIONS SERVICES. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. Title 29, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW ARTICLE to read: ARTICLE 27 Competition in Utility and Entertainment Services PART 1 COMPETITION IN UTILITY AND ENTERTAINMENT SERVICES 29-27-101. Legislative declaration. (1) THE GENERAL ASSEMBLY HEREBY FINDS AND DECLARES THAT IT IS THE POLICY OF THIS STATE TO ENSURE THAT CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, AND HIGH SPEED INTERNET ACCESS, OTHERWISE KNOWN AS ADVANCED SERVICE, ARE EACH PROVIDED WITHIN A CONSISTENT, COMPREHENSIVE, AND NOTE: This bill has been prepared for the signature of the appropriate legislative officers and the Governor. To determine whether the Governor has signed the bill or taken other action on it, please consult the legislative status sheet, the legislative history, or the Session Laws. Page 126 of 202 PAGE 2-SENATE BILL 05-152 NONDISCRIMINATORY FEDERAL, STATE, AND LOCAL GOVERNMENT FRAMEWORK. (2) THE GENERAL ASSEMBLY FURTHER FINDS AND DECLARES THAT: (a) THERE IS A NEED FOR STATEWIDE UNIFORMITY IN THE REGULATION OF ALL PUBLIC AND PRIVATE ENTITIES THAT PROVIDE CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, AND ADVANCED SERVICE. (b) MUNICIPAL ORDINANCES, RULES, AND OTHER REGULATIONS GOVERNING THE PROVISION OF CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, AND ADVANCED SERVICE BY A LOCAL GOVERNMENT IMPACT PERSONS LIVING OUTSIDE THE MUNICIPALITY. (c) REGULATING THE PROVISION OF CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, AND ADVANCED SERVICE BY A LOCAL GOVERNMENT IS A MATTER OF STATEWIDE CONCERN. 29-27-102. Definitions. AS USED IN THIS ARTICLE, UNLESS THE CONTEXT OTHERWISE REQUIRES: (1) "ADVANCED SERVICE" MEANS HIGH-SPEED INTERNET ACCESS CAPABILITY IN EXCESS OF TWO HUNDRED FIFTY-SIX KILOBITS PER SECOND BOTH UPSTREAM AND DOWNSTREAM. (2) "CABLE TELEVISION SERVICE" MEANS THE ONE-WAY TRANSMISSION TO SUBSCRIBERS OF VIDEO PROGRAMMING OR OTHER PROGRAMMING SERVICE, AS WELL AS SUBSCRIBER INTERACTION, IF ANY, THAT IS REQUIRED FOR THE SELECTION OR USE OF THE VIDEO PROGRAMMING OR OTHER PROGRAMMING SERVICE. (3) "LOCAL GOVERNMENT" MEANS ANY CITY, COUNTY, CITY AND COUNTY, SPECIAL DISTRICT, OR OTHER POLITICAL SUBDIVISION OF THIS STATE. (4) "PRIVATE PROVIDER" MEANS A PRIVATE ENTITY THAT PROVIDES CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, OR ADVANCED SERVICE. (5) "SUBSCRIBER" MEANS A PERSON THAT LAWFULLY RECEIVES Page 127 of 202 PAGE 3-SENATE BILL 05-152 CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, OR ADVANCED SERVICE. A PERSON THAT UTILIZES CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, OR ADVANCED SERVICE PROVIDED BY A LOCAL GOVERNMENT FOR LOCAL GOVERNMENTAL OR INTERGOVERNMENTAL PURPOSES AND IS USED BY PERSONS ACCESSING GOVERNMENT SERVICES IS NOT A SUBSCRIBER FOR PURPOSES OF THIS ARTICLE. (6) "TELECOMMUNICATIONS SERVICE" HAS THE SAME MEANING AS SET FORTH IN SECTION 40-15-102 (29), C.R.S. 29-27-103. Limitations on providing cable television, telecommunications, and advanced services. (1) EXCEPT AS PROVIDED IN THIS ARTICLE, A LOCAL GOVERNMENT SHALL NOT: (a) PROVIDE TO ONE OR MORE SUBSCRIBERS CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, OR ADVANCED SERVICE; OR (b) PURCHASE, LEASE, CONSTRUCT, MAINTAIN, OR OPERATE ANY FACILITY FOR THE PURPOSE OF PROVIDING CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, OR ADVANCED SERVICE TO ONE OR MORE SUBSCRIBERS. (2) FOR PURPOSES OF THIS ARTICLE, A LOCAL GOVERNMENT PROVIDES CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, OR ADVANCED SERVICE IF THE LOCAL GOVERNMENT PROVIDES THE CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, OR ADVANCED SERVICE TO ONE OR MORE SUBSCRIBERS: (a) DIRECTLY; (b) INDIRECTLY BY MEANS THAT INCLUDE BUT ARE NOT LIMITED TO THE FOLLOWING: (I) THROUGH AN AUTHORITY OR INSTRUMENTALITY ACTING ON BEHALF OF THE LOCAL GOVERNMENT OR FOR THE BENEFIT OF THE LOCAL GOVERNMENT BY ITSELF; (II) THROUGH A PARTNERSHIP OR JOINT VENTURE; (III) THROUGH A SALE AND LEASEBACK ARRANGEMENT; Page 128 of 202 PAGE 4-SENATE BILL 05-152 (c) BY CONTRACT, INCLUDING A CONTRACT WHEREBY THE LOCAL GOVERNMENT LEASES, SELLS CAPACITY IN, OR GRANTS OTHER SIMILAR RIGHTS TO A PRIVATE PROVIDER TO USE LOCAL GOVERNMENTAL FACILITIES DESIGNED OR CONSTRUCTED TO PROVIDE CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, OR ADVANCED SERVICE FOR INTERNAL LOCAL GOVERNMENT PURPOSES IN CONNECTION WITH A PRIVATE PROVIDER'S OFFERING OF CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, OR ADVANCED SERVICE; OR (d) THROUGH SALE OR PURCHASE OF RESALE OR WHOLESALE CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, OR ADVANCED SERVICE FOR THE PURPOSE OF PROVIDING CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, OR ADVANCED SERVICE TO ONE OR MORE SUBSCRIBERS. (3) NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO LIMIT THE AUTHORITY OF A LOCAL GOVERNMENT TO LEASE TO A PRIVATE PROVIDER PHYSICAL SPACE IN OR ON ITS PROPERTY FOR THE PLACEMENT OF EQUIPMENT OR FACILITIES THE PRIVATE PROVIDER USES TO PROVIDE CABLE TELEVISION, TELECOMMUNICATIONS, OR ADVANCED SERVICES. PART 2 CONDITIONS FOR PROVIDING SERVICES 29-27-201. Vote - referendum. (1) BEFORE A LOCAL GOVERNMENT MAY ENGAGE OR OFFER TO ENGAGE IN PROVIDING CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, OR ADVANCED SERVICE, AN ELECTION SHALL BE CALLED ON WHETHER OR NOT THE LOCAL GOVERNMENT SHALL PROVIDE THE PROPOSED CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, OR ADVANCED SERVICE. (2) THE BALLOT AT AN ELECTION CONDUCTED PURSUANT TO THIS SECTION SHALL POSE THE QUESTION AS A SINGLE SUBJECT AND SHALL INCLUDE A DESCRIPTION OF THE NATURE OF THE PROPOSED SERVICE, THE ROLE THAT THE LOCAL GOVERNMENT WILL HAVE IN PROVISION OF THE SERVICE, AND THE INTENDED SUBSCRIBERS OF SUCH SERVICE. THE BALLOT PROPOSITION SHALL NOT TAKE EFFECT UNTIL SUBMITTED TO THE ELECTORS AND APPROVED BY THE MAJORITY OF THOSE VOTING ON THE BALLOT. 29-27-202. Exemption for unserved areas. (1) A LOCAL GOVERNMENT SHALL BE EXEMPT FROM THE REQUIREMENTS OF THIS PART 2 Page 129 of 202 PAGE 5-SENATE BILL 05-152 AND MAY ENGAGE OR OFFER TO ENGAGE IN PROVIDING CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, OR ADVANCE SERVICE IF: (a) NO PRIVATE PROVIDER OF CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, OR ADVANCED SERVICE PROVIDES THE SERVICE ANYWHERE WITHIN THE BOUNDARIES OF THE LOCAL GOVERNMENT; (b) THE GOVERNING BODY OF THE LOCAL GOVERNMENT HAS SUBMITTED A WRITTEN REQUEST TO PROVIDE THE SERVICE TO ANY INCUMBENT PROVIDER OF CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, OR ADVANCED SERVICE WITHIN THE BOUNDARIES OF THE LOCAL GOVERNMENT; AND (c) THE INCUMBENT PROVIDER HAS NOT AGREED WITHIN SIXTY DAYS OF THE RECEIPT OF A REQUEST SUBMITTED PURSUANT TO PARAGRAPH (b) OF THIS SUBSECTION (1) TO PROVIDE THE SERVICE OR, IF THE PROVIDER HAS AGREED, IT HAS NOT COMMENCED PROVIDING THE SERVICE WITHIN FOURTEEN MONTHS OF THE RECEIPT OF THE REQUEST. PART 3 COMPLIANCE WITH LOCAL, STATE, AND FEDERAL REGULATIONS 29-27-301. General operating limitations. (1) A LOCAL GOVERNMENT THAT PROVIDES CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, OR ADVANCED SERVICE UNDER THIS ARTICLE SHALL COMPLY WITH ALL STATE AND FEDERAL LAWS, RULES, AND REGULATIONS GOVERNING PROVISION OF SUCH SERVICE BY A PRIVATE PROVIDER; EXCEPT THAT NOTHING HEREIN SHALL BE CONSTRUED TO AFFECT THE JURISDICTION OF THE PUBLIC UTILITIES COMMISSION WITH RESPECT TO MUNICIPAL UTILITIES. (2) (a) A LOCAL GOVERNMENT SHALL NOT MAKE OR GRANT ANY UNDUE OR UNREASONABLE PREFERENCE OR ADVANTAGE TO ITSELF OR TO ANY PRIVATE PROVIDER OF CABLE TELEVISION SERVICES, TELECOMMUNICATIONS SERVICES, OR ADVANCED SERVICES. (b) A LOCAL GOVERNMENT SHALL APPLY WITHOUT DISCRIMINATION AS TO ITSELF AND TO ANY PRIVATE PROVIDER THE LOCAL GOVERNMENT'S ORDINANCES, RULES, AND POLICIES, INCLUDING THOSE RELATING TO: Page 130 of 202 PAGE 6-SENATE BILL 05-152 (I) OBLIGATION TO SERVE; (II) ACCESS TO PUBLIC RIGHTS-OF-WAY; (III) PERMITTING; (IV) PERFORMANCE BONDING WHERE AN ENTITY OTHER THAN THE LOCAL GOVERNMENT IS PERFORMING THE WORK; (V) REPORTING; AND (VI) QUALITY OF SERVICE. 29-27-302. Scope of article. (1) NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO AUTHORIZE ANY LOCAL GOVERNMENT TO: (a) PROVIDE, DIRECTLY OR INDIRECTLY, CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, OR ADVANCED SERVICE; OR (b) PURCHASE, LEASE, CONSTRUCT, MAINTAIN, OR OPERATE A FACILITY FOR THE PURPOSE OF PROVIDING, DIRECTLY OR INDIRECTLY, CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, OR ADVANCED SERVICE. (2) NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO APPLY TO A LOCAL GOVERNMENT PURCHASING, LEASING, CONSTRUCTING, MAINTAINING, OR OPERATING FACILITIES THAT ARE DESIGNED TO PROVIDE CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, OR ADVANCED SERVICE THAT THE LOCAL GOVERNMENT USES FOR INTERNAL OR INTERGOVERNMENTAL PURPOSES. (3) NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO APPLY TO THE SALE OR LEASE BY A LOCAL GOVERNMENT TO PRIVATE PROVIDERS OF EXCESS CAPACITY, PROVIDED: (a) SUCH EXCESS CAPACITY IS INSUBSTANTIAL IN RELATION TO THE CAPACITY UTILIZED BY THE LOCAL GOVERNMENT FOR ITS OWN PURPOSES; AND (b) THE OPPORTUNITY TO PURCHASE AND THE OPPORTUNITY TO USE SUCH EXCESS CAPACITY IS MADE AVAILABLE TO ANY PRIVATE PROVIDER IN Page 131 of 202 PAGE 7-SENATE BILL 05-152 A NONDISCRIMINATORY, NONEXCLUSIVE, AND COMPETITIVELY NEUTRAL MANNER. (4) NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO LIMIT EITHER THE AUTHORITY OF THE STATEWIDE INTERNET PORTAL AUTHORITY CREATED IN SECTION 24-37.7-102, C.R.S., TO CARRY OUT ITS MISSION OR TO INTEGRATE THE ELECTRONIC INFORMATION DELIVERY SYSTEMS OF LOCAL GOVERNMENTS INTO THE STATEWIDE INTERNET PORTAL AS DEFINED IN ARTICLE 37.7 OF TITLE 24, C.R.S. 29-27-303. Enforcement and appeal. (1) BEFORE AN INDIVIDUAL SUBSCRIBER OR A PRIVATE PROVIDER THAT COMPETES WITH A LOCAL GOVERNMENT IN THE GEOGRAPHIC BOUNDARIES OF THE LOCAL GOVERNMENT MAY FILE AN ACTION IN DISTRICT COURT FOR VIOLATION OF THIS ARTICLE, THAT PERSON SHALL FILE A WRITTEN COMPLAINT WITH THE LOCAL GOVERNMENT. THE FAILURE BY THE LOCAL GOVERNMENT TO ISSUE A FINAL DECISION REGARDING THE COMPLAINT WITHIN FORTY-FIVE DAYS SHALL BE TREATED AS AN ADVERSE DECISION FOR PURPOSES OF APPEAL. (2) AN APPEAL OF AN ADVERSE DECISION FROM THE LOCAL GOVERNMENT MAY BE TAKEN TO THE DISTRICT COURT FOR A DE NOVO PROCEEDING. 29-27-304. Applicability. THIS ARTICLE SHALL APPLY TO CABLE TELEVISION SERVICE, TELECOMMUNICATIONS SERVICE, AND ADVANCED SERVICE AND TO THE PURCHASE, LEASE, CONSTRUCTION, MAINTENANCE, OR OPERATION OF ANY FACILITY FOR THE PURPOSE OF PROVIDING SUCH SERVICE, FOR WHICH A LOCAL GOVERNMENT HAS NOT ENTERED INTO AN AGREEMENT OR OTHERWISE TAKEN ANY SUBSTANTIAL ACTION PRIOR TO MARCH 1, 2005, TO PROVIDE SUCH SERVICE OR PURCHASE, LEASE, CONSTRUCT, MAINTAIN, OR OPERATE SUCH FACILITIES. SECTION 2. Safety clause. The general assembly hereby finds, Page 132 of 202 PAGE 8-SENATE BILL 05-152 determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety. ____________________________ ____________________________ Joan Fitz-Gerald Andrew Romanoff PRESIDENT OF SPEAKER OF THE HOUSE THE SENATE OF REPRESENTATIVES ____________________________ ____________________________ Karen Goldman Marilyn Eddins SECRETARY OF CHIEF CLERK OF THE HOUSE THE SENATE OF REPRESENTATIVES APPROVED________________________________________ _________________________________________ Bill Owens GOVERNOR OF THE STATE OF COLORADO Page 133 of 202 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Pieter Van Ry, Steve Simon DEPARTMENT: Utilities DATE: June 1, 2020 SUBJECT: Utilities - Professional Services Agreement to Prepare a Risk Assessment for Critical Water Assets. DESCRIPTION: Utilities - Professional Services Agreement to Prepare a Risk Assessment for Critical Water Assets. RECOMMENDATION: Staff recommends City Council approve a Professional Services Agreement with CDM Smith in an amount not to exceed $107,258 to conduct a Risk and Resilience Assessment (RRA) and update the City’s 2004 Emergency Response Plan (ERP) for critical water assets. The goal of the project is compliance with the America’s Water Infrastructure Act and to ensure safe, secure, and reliable water operations and deliveries. PREVIOUS COUNCIL ACTION: None. SUMMARY: On October 23, 2018, the America’s Water Infrastructure Act (AWIA) was signed into law. Section 2013 of AWIA requires drinking water system providers serving more than 3,300 people to develop or update risk assessments and emergency response plans. The purpose of this project is to perform a risk and resiliency assessment (RRA) and update the City’s 2004 Emergency Response Plan (ERP) to comply with requirements and assure secure and sustainable critical water assets into the future. The RRA and ERP update will be conducted under ANSI/AWWA guidelines and will evaluate physical and cyber security risk and threat assessment, identify and assess critical water treatment and delivery assets, update and enhance existing emergency operations plans, assess vulnerabilities, develop a risk matrix, and prepare a risk management strategy. The RRA shall be submitted to the EPA no later than December 31, 2020. The ERP update shall be submitted to the EPA no later than June 30, 2021. Page 134 of 202 ANALYSIS: Consultant services are required to execute the work due to the specialized expertise and resources needed to develop the RRA and ERP update. A Request for Proposal (RFP) was developed and advertised on the Rocky Mountain E-Purchasing System. Eight (8) proposals were received. The eight firms and cost submittals are provided in alphabetical order in Table 1. Table 1 – AWIA Proposing Firms and Fees Consultant Name Total Fee AARC Consultants $96,300 Burns and McDonnell $224,777 CDM Smith $107,258 National Hazards Research and Consulting $55,890 Stantec $149,820 Tetra Tech $112,438 Thornton Tomasetti $234,630 Witt O’Brien’s $166,100 The selection panel consisted of City Utilities and Public Works staff who evaluated and ranked the proposals based on the firm providing the greatest experience, value, and approach to complete the work. The panel agreed that CDM Smith was the highest ranked firm and recommends proceeding with a professional services agreement to execute the work. This recommendation is based on the vast experience CDM Smith has throughout the country in performing AWIA assessments, their familiarity with City infrastructure based on prior work performed (including the 2004 Emergency Response Plan), and value provided by their cost proposal. Two firms submitted lower bids; however, the panel felt these firms did not have the requisite experience, resources, and/or approach to successfully execute the scope and meet schedule needs. FINANCIAL IMPLICATIONS: Approved 2020 Budget in account 1607-5420, Administration, Professional Services in the amount of $107,258. ALTERNATIVES: The alternative to not approving the staff recommendation is not performing the work. This will result in non-compliance with state and federal requirements under the America’s Water Infrastructure Act and elevated risk and increased vulnerability of critical water assets CONCLUSION: The creation of a Risk and Resiliency Assessment (RRA) and Emergency Response Plan (ERP) update is necessary to comply AWIA requirements and mitigate risk and vulnerability of critical water assets. Therefore, staff recommends City Council approval of a Professional Services Agreement in an amount not to exceed $107,258 with CDM Smith to execute the work. CDM Smith has extensive experience in the water industry in risk assessment and developed the City’s 2004 Emergency Response Plan. Page 135 of 202 ATTACHMENTS: Attachment 1 - Contract Approval Summary Attachment 2 - Professional Services Agreement Attachment 3 - RFP Proposal Response – CDM Smith Page 136 of 202 Contract Approval Summary May 2020 Update Page | 1 Contact Identification Information (to be completed by the City Clerk) ID number: Authorizing Resolution/Ordinance: Recording Information: City Contact Information Staff Contact Person: Steve Simon Phone: 303-762-2654 Title: Engineering Deputy Director - Utilities Email: ssimon@englewoodco.gov Vendor Contact Information Vendor Name: CDM Smith Vendor Contact: Josh Baile Vendor Address: 555 17th Street Vendor Phone: 303-383-2300 City: Denver Vendor Email: bailejl@cdmsmith.com State: CO Zip Code: 80202 Contract Type Contract Type:Professional Services Description of ‘Other’ Contract Type: Description of Contract Work/Services: Attachments: ☒Contract -- ☐Original ☐Copy ☐Addendum(s) ☐Exhibit(s) ☐Certificate of Insurance Prepare a Risk and Resilience Assessment and Mitigation Plan and update the City’s 2004 Emergency Response Plan for critical water assets. The goal of the project is compliance with the America’s Water Infrastructure Act and to assure safe, secure, and reliable water operations and deliveries. Page 137 of 202 Contract Approval Summary May 2020 Update Page | 2 Summary of Terms: Start Date: 6-08-2020 End Date: 9-30-2021 Total Years of Term: 2 Total Amount of Contract for term (or estimated amount if based on item pricing): $107,258 If Amended: Original Amount Amendment Amount Total as Amended: Renewal options available: No Payment terms (please describe terms or attach schedule if based on deliverables): Net 30 Attachments: ☐Copy of original Contract if this is an Amendment ☒Copies of related Contracts/Conveyances/Documents Source of Funds (Insert Excel Document Image): Page 138 of 202 Contract Approval Summary May 2020 Update Page | 3 Attachment (For Capital Items Only / Expense Line Item Detail is Located in Open Gov): ☐Prior Month-End Project Status and Fund Balance Report Process for Choosing Vendor (Check Box): ☐Bid: ☐ Bid Evaluation Summary attached ☐ Bid Response of Proposed Awardee ☒RFP: ☐ RFP Evaluation Summary Attached ☒ RFP Response of Proposed Awardee ☐Quotes: Copy of Quotes attached ☐Optimal Source: Provide Detailed Explanation: ☐ Sole Source (Use as much space as necessary for detailed explanation): ☐ Qualification Based Selection / Best Value* (Continue on Next Page): Page 139 of 202 � Efi °F lewood � g PROCUREMENT DIVISION PROFESSIONAL SERVICES AGREEMENT Contract Number PSA/20-17 Professional Services $107,258.00 This Professional Services Agreement (the "Agreement") is made as of this 19th day of May , 20..20., (the "Effective Date") by and between COM Smith, Inc., a Colorado corporation ("Consultant"), and The City of Englewood, Colorado, a municipal corporation organized under the laws of the State of Colorado ("City"). City desires that Consultant, from time to time, provide certain consulting services, systems integration services, data conversion services, training services, and/or related services as described herein, and Consultant desires to perform such services on behalf of City on the terms and conditions set forth herein. In consideration of the foregoing and the terms hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: 1.Definitions. The terms set forth below shall be defined as follows: (a)"Intellectual Property Rights" shall mean any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing (1)rights associate with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask­ works, (2) trademark and trade name rights and similar rights, (3) trade secret rights, (4) patents, designs, algorithms and other industrial property rights, (5) all other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated) (including logos, "rental" rights and rights to remuneration), whether arising by operation of law, contract, license, or otherwise, and (6) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing). (b)"Work Product" shall mean all patents, patent applications, inventions, designs, mask works, processes, methodologies, copyrights and copyrightable works, trade secrets including confidential information, data, designs, manuals, training materials and documentation, formulas, knowledge of manufacturing processes, methods, prices, financial and accounting data, products and product specifications and all other Intellectual Property Rights created, developed or prepared, documented and/or delivered by Consultant, pursuant to the provision of the Services. 2.Statements of Work. During the term hereof and subject to the terms and conditions contained herein, Consultant agrees to provide, on an as requested basis, the consulting services, systems integration services, data conversion services, training services, and related services (the "Services") as further described in Attachment A (the "Statement of Work") for City, and in such additional Statements of Work as may be 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303)762-2300 www.englewoodgov.org PSA#20-17 Page 140 of 202 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 2 PSA # 20-17 executed by each of the parties hereto from time to time pursuant to this Agreement. Each Statement of Work shall specify the scope of work, specifications, basis of compensation and payment schedule, estimated length of time required to complete each Statement of Work, including the estimated start/finish dates, and other relevant information and shall incorporate all terms and conditions contained in this Agreement 3. Performance of Services. (a) Performance. Consultant shall perform the Services necessary to complete all projects outlined in a Statement of Work in a timely and professional manner consistent with the specifications, if any, set forth in the Statement of Work, and in accordance with industry standards. Consultant agrees to utilize its professional engineering expertise and creative talents in completing the projects outlined in a Statement of Work. (b) Delays. Consultant agrees to notify City promptly of any factor, occurrence, or event coming to its attention that may affect Consultant’s ability to meet the requirements of the Agreement, or that is likely to occasion any material delay in completion of the projects contemplated by this Agreement or any Statement of Work. Such notice shall be given in the event of any loss or reassignment of key employees, threat of strike, or major equipment failure. (c) Discrepancies. If anything necessary for the clear understanding of the Services has been omitted from the Agreement specifications or it appears that various instructions are in conflict, Consultant shall secure written instructions from City’s project director before proceeding with the performance of the Services affected by such omissions or discrepancies. 4. Invoices and Payment. Unless otherwise provided in a Statement of Work, City shall pay the amounts agreed to in a Statement of Work within thirty (30) days following the acceptance by City of the work called for in a Statement of Work by City. Acceptance procedures shall be outlined in the Statement of Work. If City disputes all or any portion of an invoice for charges, then City shall pay the undisputed portion of the invoice by the due date and shall provide the following notification with respect to the disputed portion of the invoice. City shall notify Consultant as soon as possible of the specific amount disputed and shall provide reasonable detail as to the basis for the dispute. The parties shall then attempt to resolve the disputed portion of such invoice as soon as possible. Upon resolution of the disputed portion, City shall pay to Consultant the resolved amount. 5. Taxes. City is not subject to taxation. No federal or other taxes (excise, luxury, transportation, sales, etc.) shall be included in quoted prices. City shall not be obligated to pay or reimburse Consultant for any taxes attributable to the sale of any Services which are imposed on or measured by net or gross income, capital, net worth, franchise, privilege, any other taxes, or assessments, nor any of the foregoing imposed on or payable by Consultant. Upon written notification by City and subsequent verification by Consultant, Consultant shall reimburse or credit, as applicable, City in a timely manner, for any and all taxes erroneously paid by City. City shall provide Consultant with, and Consultant shall accept in good faith, resale, direct pay, or other exemption certificates, as applicable. 6. Out of Pocket Expenses. Consultant shall be reimbursed only for expenses which are expressly provided for in a Statement of Work or which have been approved in advance in writing by City, provided Consultant has furnished such documentation for authorized expenses as City may reasonably request. 7. Audits. Consultant shall provide such employees and independent auditors and inspectors as City may designate with Page 141 of 202 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 3 PSA # 20-17 reasonable access to all sites from which Services are performed for the purposes of performing audits or inspections of Consultant’s operations and compliance with this Agreement. Consultant shall provide such auditors and inspectors any reasonable assistance that they may require. Such audits shall be conducted in such a way so that the Services or services to any other customer of Consultant are not impacted adversely. 8. Term and Termination. The term of this Agreement shall commence on the date when both parties have signed the Agreement, and shall continue for one year, unless this Agreement is terminated as provided in this Section 8. At the end of the initial one year period, if the parties desire to extend this Agreement beyond the one year period, written notice shall be given to the City no later than thirty (30) days prior to the end of the one year period by the Contractor. If the City agrees to the request for renewal, the parties shall then enter into an amendment extending this Agreement including an amended Statement of Work, if necessary. The parties understand and acknowledge that any renewal of this Agreement is subject to the approval of the Englewood City Council. The parties also understand and acknowledge that the extension of this contract beyond the initial one year period is contingent upon the City appropriating adequate funds for each fiscal year. (a) Convenience. City may, without cause and without penalty, terminate the provision of Services under any or all Statements of Work upon thirty (30) days prior written notice. Upon such termination, City shall, upon receipt of an invoice from Consultant, pay Consultant for Services actually rendered prior to the effective date of such termination. Charges will be based on time expended for all incomplete tasks as listed in the applicable Statement of Work, and all completed tasks will be charged as indicated in the applicable Statement of Work. (b) No Outstanding Statements of Work. Either party may terminate this Agreement by providing the other party with at least thirty (30) days prior written notice of termination if there are no outstanding Statements of Work. (c) Material Breach. If either party materially defaults in the performance of any term of a Statement of Work or this Agreement with respect to a specific Statement of Work (other than by nonpayment) and does not substantially cure such default within thirty (30) days after receiving written notice of such default, then the non-defaulting party may terminate this Agreement or any or all outstanding Statements of Work by providing ten (10) days prior written notice of termination to the defaulting party. (d) Bankruptcy or Insolvency. Either party may terminate this Agreement effective upon written notice stating its intention to terminate in the event the other party: (1) makes a general assignment of all or substantially all of its assets for the benefit of its creditors; (2) applies for, consents to, or acquiesces in the appointment of a receiver, trustee, custodian, or liquidator for its business or all or substantially all of its assets; (3) files, or consents to or acquiesces in, a petition seeking relief or reorganization under any bankruptcy or insolvency laws; or (4) files a petition seeking relief or reorganization under any bankruptcy or insolvency laws is filed against that other party and is not dismissed within sixty (60) days after it was filed. (e) TABOR. The parties understand and acknowledge that each party 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, notwithstanding anything in this Agreement to the contrary, all payment Page 142 of 202 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 4 PSA # 20-17 obligations of City are expressly dependent and conditioned upon the continuing availability of funds beyond the term of City's current fiscal period ending upon the next succeeding December 31. Financial obligations of City 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 City and applicable law. Upon the failure to appropriate such funds, this Agreement shall be deemed terminated. (f) Return of Property. Upon termination of this Agreement, both parties agree to return to the other all property (including any Confidential Information, as defined in Section 11) of the other party that it may have in its possession or control. 9. City Obligations. City will provide timely access to City personnel, systems and information required for Consultant to perform its obligations hereunder. City shall provide to Consultant’s employees performing its obligations hereunder at City’s premises, without charge, a reasonable work environment in compliance with all applicable laws and regulations, including office space, furniture, telephone service, and reproduction, computer, facsimile, secretarial and other necessary equipment, supplies, and services. With respect to all third party hardware or software operated by or on behalf of City, City shall, at no expense to Consultant, obtain all consents, licenses and sublicenses necessary for Consultant to perform under the Statements of Work and shall pay any fees or other costs associated with obtaining such consents, licenses and sublicenses. 10. Staff. Consultant is an independent consultant and neither Consultant nor Consultant’s staff is, or shall be deemed to be employed by City. City is hereby contracting with Consultant for the Services described in a Statement of Work and Consultant reserves the right to determine the method, manner and means by which the Services will be performed. The Services shall be performed by Consultant or Consultant’s staff, and City shall not be required to hire, supervise or pay any assistants to help Consultant perform the Services under this Agreement. Except to the extent that Consultant’s work must be performed on or with City’s computers or City’s existing software, all materials used in providing the Services shall be provided by Consultant. 11. Confidential Information. (a) Obligations. Each party hereto may receive from the other party information which relates to the other party’s business, research, development, trade secrets or business affairs (“Confidential Information”). Subject to the provisions and exceptions set forth in the Colorado Open Records Act, CRS Section 24-72-201 et. seq., each party shall protect all Confidential Information of the other party with the same degree of care as it uses to avoid unauthorized use, disclosure, publication or dissemination of its own confidential information of a similar nature, but in no event less than a reasonable degree of care. Without limiting the generality of the foregoing, each party hereto agrees not to disclose or permit any other person or entity access to the other party’s Confidential Information except such disclosure or access shall be permitted to an employee, agent, representative or independent consultant of such party requiring access to the same in order to perform his or her employment or services. Each party shall insure that their employees, agents, representatives, and independent consultants are advised of the confidential nature of the Confidential Information and are precluded from taking any action prohibited under this Section 11. Further, each party agrees not to alter or remove any identification, copyright or other proprietary rights notice which indicates the ownership of any part of such Confidential Information by the other party. A party hereto shall undertake to immediately notify the other Page 143 of 202 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 5 PSA # 20-17 party in writing of all circumstances surrounding any possession, use or knowledge of Confidential Information at any location or by any person or entity other than those authorized by this Agreement. Notwithstanding the foregoing, nothing in this Agreement shall restrict either party with respect to information or data identical or similar to that contained in the Confidential Information of the other party but which (1) that party rightfully possessed before it received such information from the other as evidenced by written documentation; (2) subsequently becomes publicly available through no fault of that party; (3) is subsequently furnished rightfully to that party by a third party without restrictions on use or disclosure; or (4) is required to be disclosed by law, provided that the disclosing party will exercise reasonable efforts to notify the other party prior to disclosure. (b) Know -How. For the avoidance of doubt neither City nor Consultant shall be prevented from making use of know-how and principles learned or experience gained of a non-proprietary and non-confidential nature. (c) Remedies. Each of the parties hereto agree that if, their officers, employees or anyone obtaining access to the Confidential Information of the other party by, through or under them, breaches any provision of this Section 11, the non-breaching party shall be entitled to an accounting and repayment of all profits, compensation, commissions, remunerations and benefits which the breaching party, its officers or employees directly or indirectly realize or may realize as a result of or growing out of, or in connection with any such breach. In addition to, and not in limitation of the foregoing, in the event of any breach of this Section 11, the parties agree that the non-breaching party will suffer irreparable harm and that the total amount of monetary damages for any such injury to the non-breaching party arising from a violation of this Section 11 would be impossible to calculate and would therefore be an inadequate remedy at law. Accordingly, the parties agree that the non-breaching party shall be entitled to temporary and permanent injunctive relief against the breaching party, its officers or employees and such other rights and remedies to which the non-breaching party may be entitled to at law, in equity or under this Agreement for any violation of this Section 11. The provisions of this Section 11 shall survive the expiration or termination of this Agreement for any reason. 12. Project Managers. Each party shall designate one of its employees to be its Project Manager under each Statement of Work, who shall act for that party on all matters under the Statement of Work. Each party shall notify the other in writing of any replacement of a Project Manager. The Project Managers for each Statement of Work shall meet as often as either one requests to review the status of the Statement of Work. 13. Warranties. (a) Authority. Consultant represents and warrants that: (1) Consultant has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (2) the execution of this Agreement by Consultant, and the performance by Consultant of its obligations and duties hereunder, do not and will not violate any agreement to which Consultant is a party or by which it is otherwise bound under any applicable law, rule or regulation; (3) when executed and delivered by Consultant, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and (4) Consultant acknowledges that City makes no representations, warranties or agreements related to the subject matter hereof that are not expressly provided for in this Agreement (b) Service Warranty. Consultant warrants that its employees and consultants shall have sufficient skill, knowledge, and Page 144 of 202 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 6 PSA # 20-17 training to perform Services and that the Services shall be performed in a professional and workmanlike manner. (c) Personnel. Unless a specific number of employees is set forth in the Statement of Work, Consultant warrants it will provide sufficient employees to complete the Services ordered within the applicable time frames established pursuant to this Agreement or as set forth in the Statement of Work. During the course of performance of Services, City may, for any or no reason, request replacement of an employee or a proposed employee. In such event, Consultant shall, within five (5) working days of receipt of such request from City, provide a substitute employee of sufficient skill, knowledge, and training to perform the applicable Services. Consultant shall require employees providing Services at a City location to comply with applicable City security and safety regulations and policies. (d) Compensation and Benefits. Consultant shall provide for and pay the compensation of employees and shall pay all taxes, contributions, and benefits (such as, but not limited to, workers’ compensation benefits) which an employer is required to pay relating to the employment of employees. City shall not be liable to Consultant or to any employee for Consultant’s failure to perform its compensation, benefit, or tax obligations. Consultant shall indemnify, defend and hold City harmless from and against all such taxes, contributions and benefits and will comply with all associated governmental regulations, including the filing of all necessary reports and returns. 14. Indemnification. (a) Consultant Indemnification. Consultant shall indemnify, defend and hold harmless City, its directors, officers, employees, and agents and the heirs, executors, successors, and permitted assigns of any of the foregoing (the “City Indemnitees”) from and against all losses, claims, obligations, demands, assessments, fines and penalties (whether civil or criminal), liabilities, expenses and costs (including reasonable fees and disbursements of legal counsel and accountants), bodily and other personal injuries, damage to tangible property, and other damages, of any kind or nature, suffered or incurred by a City Indemnitee to the extent directly or indirectly arising from or related to: (1) any negligent or intentionally wrongful act or omission by Consultant or its representatives in the performance of Consultant’s obligations under this Agreement, or (2) any material breach in a representation, warranty, covenant or obligation of Consultant contained in this Agreement. (b) Infringement. Consultant will indemnify, defend, and hold City harmless from all Indemnifiable Losses arising from any third party claims that any Work Product or methodology supplied by Consultant infringes or misappropriates any Intellectual Property rights of any third party; provided, however, that the foregoing indemnification obligation shall not apply to any alleged infringement or misappropriation based on: (1) use of the Work Product in combination with products or services not provided by Consultant to the extent that such infringement or misappropriation would have been avoided if such other products or services had not been used; (2) any modification or enhancement to the Work Product made by City or anyone other than Consultant or its sub-consultants; or (3) use of the Work Product other than as permitted under this Agreement. (c) Indemnification Procedures. Notwith-standing anything else contained in this Agreement, no obligation to indemnify which is set forth in this Section 14 shall apply unless the party claiming indemnification notifies the other party as soon as practicable to avoid any prejudice in the claim, suit or proceeding of any matters in respect of which the indemnity may apply and of which the notifying party has knowledge and gives the Page 145 of 202 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 7 PSA # 20-17 other party the opportunity to control the response thereto and the defense thereof; provided, however, that the party claiming indemnification shall have the right to participate in any legal proceedings to contest and defend a claim for indemnification involving a third party and to be represented by its own attorneys, all at such party’s cost and expense; provided further, however, that no settlement or compromise of an asserted third- party claim other than the payment/money may be made without the prior written consent of the party claiming indemnification. (d) Immunity. City, its officers, and its employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. 24-10-101 et seq., as from time to time amended, or otherwise available to City, its officers, or its employees. 15. Insurance. (a) Requirements. Consultant agrees to keep in full force and effect and maintain at its sole cost and expense the following policies of insurance during the term of this Agreement: (1) The Consultant shall comply with the Workers’ Compensation Act of Colorado and shall provide compensation insurance to protect the City from and against any and all Workers’ Compensation claims arising from performance of the work under this contract. Workers’ Compensation insurance must cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, as well as the Employers’ Liability within the minimum statutory limits. (2) Commercial General Liability Insurance and auto liability insurance (including contractual liability insurance) providing coverage for bodily injury and property damage with a combined single limit of not less than three million dollars ($3,000,000) per occurrence. (3) Professional Liability/Errors and Omissions Insurance covering acts, errors and omissions arising out of Consultant’s operations or Services in an amount not less than one million dollars ($1,000,000) per occurrence. (4) Employee Dishonesty and Computer Fraud Insurance covering losses arising out of or in connection with any fraudulent or dishonest acts committed by Consultant personnel, acting alone or with others, in an amount not less than one million dollars ($1,000,000) per occurrence. (b) Approved Companies. All such insurance shall be procured with such insurance companies of good standing, permitted to do business in the country, state or territory where the Services are being performed. (c) Certificates. Consultant shall provide City with certificates of insurance evidencing compliance with this Section 15 (including evidence of renewal of insurance) signed by authorized representatives of the respective carriers for each year that this Agreement is in effect. Certificates of insurance will list the City of Englewood as an additional insured. Each certificate of insurance shall provide that the issuing company shall not cancel, reduce, or otherwise materially change the insurance afforded under the above policies unless thirty (30) days’ notice of such cancellation, reduction or material change has been provided to City. 16. Rights in Work Product. (a) Generally. Except as specifically agreed to the contrary in any Statement of Work, all Intellectual Property Rights in and to the Work Product produced or provided by Consultant under any Statement of Work shall remain the property of Consultant. With Page 146 of 202 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 8 PSA # 20-17 respect to the Work Product, Consultant unconditionally and irrevocably grants to City during the term of such Intellectual Property Rights, a non-exclusive, irrevocable, perpetual, worldwide, fully paid and royalty-free license, to reproduce, create derivative works of, distribute, publicly perform and publicly display by all means now known or later developed, such Intellectual property Rights. (b) Know-How. Notwithstanding anything to the contrary herein, each party and its respective personnel and consultants shall be free to use and employ its and their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course of any assignment, so long as it or they acquire and apply such information without disclosure of any Confidential Information of the other party. 17. Relationship of Parties. Consultant is acting only as an independent consultant and does not undertake, by this Agreement, any Statement of Work or otherwise, to perform any obligation of City, whether regulatory or contractual, or to assume any responsibility for City’s business or operations. Neither party shall act or represent itself, directly or by implication, as an agent of the other, except as expressly authorized in a Statement of Work. 18. Complete Agreement. This Agreement contains the entire agreement, including all Exhibits, Statements of Work and other Attachments that have been executed by the parties, and are attached hereto and made a part of this Agreement. 19. Applicable Law. Consultant shall comply with all applicable laws in performing Services but shall be held harmless for violation of any governmental procurement regulation to which it may be subject but to which reference is not made in the applicable Statement of Work. This Agreement shall be construed in accordance with the laws of the State of Colorado. Any action or proceeding brought to interpret or enforce the provisions of this Agreement shall be brought before the state or federal court situated in Arapahoe County, Colorado and each party hereto consents to jurisdiction and venue before such courts. 20. Scope of Agreement. If the scope of any provisions of this Agreement is too broad in any respect whatsoever to permit enforcement to its fullest extent, then such provision shall be enforced to the maximum extent permitted by law, and the parties hereto consent to and agree that such scope may be judicially modified accordingly and that the whole of such provision of this Agreement shall not thereby fail, but that the scope of such provision shall be curtailed only to the extent necessary to conform to law. 21. Additional Work. After receipt of a Statement of Work, City, with Consultant’s consent, may request Consultant to undertake additional work with respect to such Statement of Work. In such event, City and Consultant shall execute an addendum to the Statement of Work specifying such additional work and the compensation to be paid to Consultant for such additional work. 22. Sub-consultants. Consultant may not subcontract any of the Services to be provided hereunder without the prior written consent of City. In the event of any permitted subcontracting, the agreement with such third party shall provide that, with respect to the subcontracted work, such sub-consultant shall be subject to all of the obligations of Consultant specified in this Agreement. 23. Notices. Any notice provided pursuant to this Agreement shall be in writing to the parties at the addresses set forth below and shall be deemed given (1) if by hand delivery, upon receipt thereof, (2) three (3) days after deposit in the United States mails, postage prepaid, certified mail, return receipt requested or (3) one (1) day after deposit with a Page 147 of 202 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 9 PSA # 20-17 nationally-recognized overnight courier, specifying overnight priority delivery. Either party may change its address for purposes of this Agreement at any time by giving written notice of such change to the other party hereto. 24. Assignment. This Agreement may not be assigned by Consultant without the prior written consent of City. Except for the prohibition of an assignment contained in the preceding sentence, this Agreement shall be binding upon and inure to the benefit of the heirs, successors and assigns of the parties hereto. 25. Third Party Beneficiaries. This Agreement is entered into solely for the benefit of the parties hereto and shall not confer any rights upon any person or entity not a party to this Agreement. 26. Headings. The section headings in this Agreement are solely for convenience and shall not be considered in its interpretation. The recitals set forth on the first page of this Agreement are incorporated into the body of this Agreement. The exhibits referred to throughout this Agreement and any Statement of Work prepared in conformance with this Agreement are incorporated into this Agreement. 27. Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall not effect in any way the full right to require such performance at any subsequent time; nor shall the waiver by either party of a breach of any provision of this Agreement be taken or held to be a waiver of the provision itself. 28. Force Majeure. If performance by Consultant of any service or obligation under this Agreement is prevented, restricted, delayed or interfered with by reason of labor disputes, strikes, acts of God, floods, lightning, severe weather, shortages of materials, rationing, utility or communications failures, earthquakes, war, revolution, civil commotion, acts of public enemies, blockade, embargo or any law, order, proclamation, regulation, ordinance, demand or requirement having legal effect of any governmental or judicial authority or representative of any such government, or any other act whether similar or dissimilar to those referred to in this clause, which are beyond the reasonable control of Consultant, then Consultant shall be excused from such performance to the extent of such prevention, restriction, delay or interference. If the period of such delay exceeds thirty (30) days, City may, without liability, terminate the affected Statement of Work(s) upon written notice to Consultant. 29. Permits. Consultant shall at its own expense secure any and all licenses, permits or certificates that may be required by any federal, state or local statute, ordinance or regulation for the performance of the Services under the Agreement. Consultant shall also comply with the provisions of all Applicable Laws in performing the Services under the Agreement. At its own expense and at no cost to City, Consultant shall make any change, alteration or modification that may be necessary to comply with any Applicable Laws that Consultant failed to comply with at the time of performance of the Services. 30. Media Releases. Except for any announcement intended solely for internal distribution by Consultant or any disclosure required by legal, accounting, or regulatory requirements beyond the reasonable control of Consultant, all media releases, public announcements, or public disclosures (including, but not limited to, promotional or marketing material) by Consultant or its employees or agents relating to this Agreement or its subject matter, or including the name, trade mark, or symbol of City, shall be coordinated with and approved in writing by City prior to the release thereof. Consultant shall not represent directly or indirectly that any Services provided by Consultant to City has been approved or endorsed by City or include Page 148 of 202 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 10 PSA # 20-17 the name, trade mark, or symbol of City on a list of Consultant’s customers without City’s express written consent. 31. Nonexclusive Market and Purchase Rights. It is expressly understood and agreed that this Agreement does not grant to Consultant an exclusive right to provide to City any or all of the Services and shall not prevent City from acquiring from other suppliers services similar to the Services. Consultant agrees that acquisitions by City pursuant to this Agreement shall neither restrict the right of City to cease acquiring nor require City to continue any level of such acquisitions. Estimates or forecasts furnished by City to Consultant prior to or during the term of this Agreement shall not constitute commitments. 32. Survival. The provisions of Sections 5, 8(g), 10, 11, 13, 14, 16, 17, 19, 23, 25 and 31 shall survive any expiration or termination for any reason of this Agreement. 33. Verification of Compliance with C.R.S. 8-17.5-101 ET.SEQ. Regarding Hiring of Illegal Aliens: (a) Employees, Consultants and Sub-consultants: Consultant shall not knowingly employ or contract with an illegal alien to perform work under this Contract. Consultant shall not contract with a sub- consultant that fails to certify to the Consultant that the sub-consultant will not knowingly employ or contract with an illegal alien to perform work under this Contract. [CRS 8- 17.5-102(2)(a)(I) & (II).] (b) Verification: Consultant will participate in either the E-Verify program or the Department program, as defined in C.R.S. 8- 17.5-101 (3.3) and 8-17.5-101 (3.7), respectively, in order to confirm the employment eligibility of all employees who are newly hired for employment to perform work under this public contract for services. Consultant is prohibited from using the E-Verify program or the Department program procedures to undertake pre-employment screening of job applicants while this contract is being performed. (c) Duty to Terminate a Subcontract: If Consultant obtains actual knowledge that a sub-consultant performing work under this Contract knowingly employs or contracts with an illegal alien, the Consultant shall; (1) notify the sub-consultant and the City within three days that the Consultant has actual knowledge that the sub-consultant is employing or contracting with an illegal alien; and (2) terminate the subcontract with the sub-consultant if, within three days of receiving notice required pursuant to this paragraph the sub- consultant does not stop employing or contracting with the illegal alien; except that the Consultant shall not terminate the contract with the sub-consultant if during such three days the sub- consultant provides information to establish that the sub-consultant has not knowingly employed or contracted with an illegal alien. (d) Duty to Comply with State Investigation: Consultant shall comply with any reasonable request of the Colorado Department of Labor and Employment made in the course of an investigation by that the Department is undertaking pursuant to C.R.S. 8-17.5-102 (5) (e) Damages for Breach of Contract: The City may terminate this contract for a breach of contract, in whole or in part, due to Consultant’s breach of any section of this paragraph or provisions required pursuant to CRS 8-17.5-102. Consultant shall be liable for actual and consequential damages to the City in addition to any other legal or equitable remedy the City may be entitled to for a breach of this Contract under this Paragraph 34. Page 149 of 202 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 11 PSA # 20-17 34. Mutual Waiver of Consequential Damages. Notwithstanding any other provision of this Agreement to the contrary, neither party including their officers, agents, servants and employees shall be liable to the other for lost profits or any special or indirect, incidental, or consequential damages in any way arising out of this Agreement however caused under a claim of any type or nature based on any theory of liability (including, but not limited to: contract, tort, or warranty) even if the possibility of such damages has been communicated. 35. Limitation of Liability. In no event shall Consultant’s total liability to City and/or any of the City’s officers, employees, agents, contractors or subcontractors for any and all injuries, claims, losses, expenses or damages whatsoever arising from cause or causes, including but not limited to, Consultant’s wrongful act, omission, negligence, errors, strict liability, breach of warranty, express or implied, exceed the total amount of fee paid to Consultant under this Agreement or $500,000, whichever is greater. Page 150 of 202 Page 151 of 202 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 13 PSA # 20-17 ATTACHMENT A OUTLINE OF STATEMENT OF WORK Risk and Resiliency Assessment and Emergency Response Plan 1.GENERAL The Water Treatment Plant is required to conduct a risk and resiliency assessment and revise their emergency response plan in accordance with the America’s Water Infrastructure Act (AWIA). The contractor will be responsible for modifying the existing Emergency Response Plan (ERP) and using prior condition & vulnerability assessments, while conducting additional assessments for physical and cyber assets and business processes to defend against current and future risks and hazards. 2.NAMES OF PROJECT COORDINATORS Contractor: Josh Baile CDM Smith, Inc. (303) 383-2357 BaileJL@cdmsmith.com City of Englewood: Steve Simon Deputy Director, Utilities Engineering (303) 762-2654 ssimon@englewoodco.gov 3.SUMMARY OF PURPOSE FOR STATEMENT OF WORK Per the America’s Water Infrastructure Act, enacted October 23, 2018, all drinking water systems must conduct a risk and resiliency assessment and revise their emergency response plan. This project will complete the work associated with this requirement. 4.EQUIPMENT AND PROGRAMMING TO BE PROVIDED BY CITY (IF ANY) N/A 5.OTHER RESOURCES Access to the Allen Water Treatment Plant for review and analysis of components. 6.DESCRIPTION OF WORK PRODUCT AND DELIVERABLES Phase 1: •Review the organizational framework •Complete necessary data collection •Prioritize critical assets Deliverables-Phase 1: •Draft list of assets •Prioritized list of assets Page 152 of 202 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 14 PSA # 20-17 Phase 2: • Review of potential threat scenarios • Perform consequence analyses o Develop metrics (financial, casualties, time frames, etc.) RAMCAP methodology, define range of consequence o Perform a consequence analysis for each critical asset following the RAMPCAP 5-step process • Perform vulnerability analysis of each critical asset or system • Threat analysis • Calculate risk matrix for critical assets & resilience of utility • Develop risk management activities • Reporting and continuous improvement planning • Update emergency response plan Deliverables-Phase 2: • Draft risk and vulnerability assessment for each critical asset • Maps, site plans, and sketches for each critical asset • Recommended list and planning level cost for options identified • Action plans for threats to high risk critical assets • Update emergency response plan • Prepare two letters of Certification to the EPA-one for risk assessment and one for emergency response plan 7. SPECIAL TERMS, IF ANY N/A 8. MODE OF PAYMENT Payment will be processed within 30 days of receipt of a monthly invoice that has been reviewed and approved for payment. 9. PAYMENT SCHEDULE Invoices shall be submitted monthly and shall detail the hours utilized, at the contract rates, shown in the contractor’s proposal. . 10. SCHEDULE AND PERFORMANCE MILESTONES • Completion of Phase 1 by December 31, 2020 • Completion of Phase 2 by June 30, 2021 Page 153 of 202 Page 154 of 202 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 16 PSA # ATTACHMENT B Terms and Conditions Applicable to Risk Assessments and Emergency Response Plans The parties acknowledge and agree that the Performance of a Risk Assessment and assessment and development of an emergency response plan will not address or eliminate all risk to the Client’s facility from natural hazards or malevolent acts. The parties further acknowledge and agree that managing the security of information technology and operational technology systems (including hardware and software) is a continuously evolving endeavor. New threats arise every day as malicious actors are continuously developing new strategies to defeat existing security systems and gain both physical and electronic access to systems. No security system exists that can protect against all intrusion. The parties acknowledge and agree that any deficiencies or weaknesses in Client’s facilities identified by CDM Smith and the implementation of any recommended changes is meant to reduce vulnerability thereby decreasing overall risk but will not eliminate the risk entirely. The following terms and conditions apply to all Risk Assessments and Emergency Response Plans type services and any additional or subsequent services performed by or on behalf of CDM Smith Inc. pursuant to the [project name, TO etc.]. 1. LIMITATION OF LIABILITY IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR (1) LOST PROFITS; (2) LOSS OF BUSINESS; (3) LOSS OF DATA OR INTERRUPTION OF CORRUPTIUON OF DATA; OR (4) FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S SOLE LIABILITY TO THE OTHER PARTYY IF ANY, FOR ANY AND ALL DAMAGES UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE FEES PAID OR THE FEES WHICH SHOULD HAVE BEEN PAID BY CLIENT TO CDM SMITH UNDER THE APPLICABLE STATEMENT OF WORK AT THE TIME THE CLAIM WAS MADE. NEITHER PARTY MAY COMMENCE ANY ACTION OR PROCEEDING UNDER THIS AGREEMENT, REGARDLESS OF FORM, MORE THAN TWO (2) YEARS AFTER THE DATE THE CAUSE OF ACTION OCCURRED. IF UNDER THE LAW RULED APPLICABLE TO THIS AGREEMENT ANY PART OF THIS SECTION IS INVALID, THEN EACH PARTY LIMITS ITS LIABILITY TO THE MAXIMUM EXTENT ALLOWED BY SAID LAW. 2. DISCLAIMER OF ALL WARRANTIES CDM SMITH DOES NOT MAKE ANY AND HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Page 155 of 202 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 17 PSA # 3. DISCLAIMER OF GUARANTEE CDM SMITH DOES NOT MAKE AND HEREY DISCLAIMS ALL GUARANTEES INCLUDING BUT NOT LIMTIED TO ANY GUARANTEE THAT CLIENT WILL NOT EXPERIENCE A SECURITY BREACH EITHER BEFORE OR AFTER THE IMPLEMENTATION OF ANY RECOMMENDATIONS MADE BY CDM SMITH. ASSESSMENTS AND RECOMMENDATIONS REPRESENT A SNAPSHOT ON TIME WHEN THE SERVICES ARE PERFORMED AND DO NOT OFFER A GUARANTEE OF FUTURE SECRUITY VULNERABILITIES. 4. SERVICES EXCLUDED a. CDM Smith’s services do not include any type of audit requiring CDM Smith to sample or test or otherwise validate the technical information provided to it by Client. b. CDM Smith’s services do not in include actual remediation of any compliance/security gaps. 5. LANGUAGE TO BE INCLUDED IN ASSESSMENT The parties agree that the following language will be included in the final document prepared by CDM Smith. The opinions, conclusions, and recommendations contained in this report and Client’s implementation of any recommended changes are meant to reduce the risk to the Client’s facilities from natural hazards and malevolent acts but will not eliminate the risk entirely. CDM Smith does not make and hereby disclaims all warranties and guarantees including but not limited to any warranty/guarantee that Client will not experience or be impacted by a natural hazard or malevolent act at its facilities described in this report either before or after the implementation of any recommendations made by CDM Smith. Page 156 of 202 DRINKING WATER RISK & RESILIENCY EMERGENCY PLANNING CITY OF ENGLEWOOD REQUEST FOR PROPOSAL RISK & RESILIENCY ASSESSMENT & EMERGENCY RESPONSE PLAN October 4, 2019 Submitted by: DRINKING WATER SUPPLY RISK & RESPONSE EXPERTS EXPERTISE & INSIGHT DEPTH & AVAILABILITY QUALITY & COMMITMENT CDM Smith has provided engineering and planning support to the City, including the City’s Emergency Response Plan in 2004. Through our work on multiple projects, we know your team and your systems and will quickly and thoroughly to complete the Risk and Resiliency Assessment. We will leverage the expertise of local and national experts—as well as previous City insights—to efficiently investigate, assess, and recommend solutions that you can trust to protect your system and community in the years to come. Page 157 of 202 Cover Letter 555 17th Street Suite 500 Denver, CO 80202 (303) 383-2300 www.cdmsmith.com City of Englewood Eva Boyd, Procurement Administrator 1000 Englewood Parkway Englewood, CO 80110-1407 RE: City of Englewood Risk and Resiliency Assessment and Emergency Response Plan (RFP-19-50) Dear Ms. Boyd and Selection Committee Members, The City of Englewood (City) has a well-established track record of proactively planning for the long-term maintenance, improvement, and security of its facilities. The recent passing of the America’s Water Infrastructure Act (AWIA) by the Federal government aligns naturally with how you operate—allowing you to build upon your existing Emergency Response Plan (ERP) and prior condition assessments and vulnerability assessments, while conducting additional assessments for physical and cyber assets and business processes to defend against current and future risks and hazards. We encourage you to consider the following reasons that CDM Smith is the right firm to support the City in this work: A Familiar and Knowledgeable Team. CDM Smith has provided engineering and planning support to the City since 1978, including the City’s ERP in 2004 in response to the 2002 Bioterrorism Act. Through our work on multiple projects, we have come to know your systems and standards, and will quickly and thoroughly prepare the Risk and Resiliency Assessment (RRA). We will leverage the expertise of local and national experts, as well as City insights, to efficiently investigate, assess, and recommend solutions that you can trust to protect your system and community in the years to come. We have completed more than 200 resiliency projects across the firm, including RRAs and ERPs across the Front Range for clients and systems large and small. We are currently completing similar assignments across the country with members of our AWIA-dedicated team specialists and resources who will assist in providing the City with a streamlined approach to the broad scope of services and narrow timeframes in which to accomplish. Implementable Resiliency Solutions. We will work with you to develop and deliver implementable resiliency strategies and solutions to identify safety and security improvements for the water system to provide long-term protection of public health. The CDM Smith Team has delivered similar scopes of work and has the expertise to cover the wide range of focus, including water supply, treatment, and quality; source water protection, water quality, compliance, treatment capacity; risk assessments and emergency planning; security assessments and risk mitigation strategies—both cyber and physical. The CDM Smith Team will conduct site visits for all facilities to document physical security features as required by the AWIA. Should the City prefer to self-perform and document conditions at a portion of the facilities (e.g. identified as less critical), CDM Smith will provide support documentation and guidance and will coordinate to accurately document for inclusion in the RRA. Valuable Local Knowledge and Insight. The CDM Smith Team will be led by Project Manager, Brian Daw and Officer-in- Charge, Josh Baile, and Risk & Resilience Lead Paniz Miesen—representing over 50 years of combined local experience leading and supporting all aspects of water system, treatment, and infrastructure improvements. Mr. Baile and Ms. Miesen have played key roles in several resilience projects and are both certified by the American Water Works Association (AWWA) Utility Risk & Resilience and will be able to effectively facilitate the City’s compliance with AWIA requirements and deadlines. Our Denver-based CDM Smith team is committed to delivering these high-quality services to the City in a collaborative way, while meeting schedule and budget requirements for successful completion of the RRA. CDM Smith is reviewing the City’s Professional Services Agreement, and notes that we have successfully come to mutually agreeable terms during past projects with the City and anticipate the same on this project. Should you have any questions or desire a discussion in person, feel free to contact either Josh Bailes at (303) 383-2357 / BaileJL@cdmsmith.com or Brian Daw at (303) 383-2370 / DawBC@cdmsmith.com. Sincerely, Josh Baile, CWP Brian Daw, PE Client Service Leader Project Manager CDM Smith Inc. CDM Smith Inc. October 4, 2019 Page 158 of 202 02 City of Englewood AWIA Risk & Resiliency Assessment & Emergency Response Plan Project Understanding The CDM Smith Team brings the expertise and experience to support the City of Englewood (City) in complying with the requirements of AWIA and continuing to protect your valuable resources and assets through efficient updates to complement the work the City has completed via your prior vulnerability assessment, and emergency response plans (ERP). We understand this project will add to the security and resiliency of the City’s Allen Water Filtration Plant and related infrastructure assets. We will deliver a tailored approach to identifying the City’s potential vulnerabilities, presenting options for mitigating related threats, and prioritizing responses to secure your assets in compliance with AWIA requirements by June 30, 2021. Our approach is based on an understanding that the City owns and operates the following critical assets, on which the Risk and Resilience Assessment (RRA) will focus on the following: ƒAllen Water Filter Plant ƒTreated Water Distribution System ƒTwo Treated Water Storage Tanks (3-mgd each) ƒTwo Booster Pump Stations ƒSource Water Supply and Diversions ƒProcess Control and SCADA Systems ƒBusiness and Billing Systems More broad than other assessments related to risks and resilience, the AWIA specifically calls out an all-hazards approach for identifying the risks of “natural hazards” and malevolent acts, along with cybersecurity gaps that have not been typically assessed by utilities in the past during required vulnerability assessments. In the end, CDM Smith will provide the City with a balanced approach that leverages previous insights and fresh perspectives to accurately assess what is currently in place, identify gaps, and provide recommendations for improvements to improve long-term confidence and security. Business Profile & Experience Firm Capabilities & Areas of Focus Founded in 1947, CDM Smith is a full-service consulting firm that provides engineering, architectural, construction, transportation, and environmental services. With more than 5,000 multidisciplinary staff across 130 offices worldwide, CDM Smith maintains the size, stability, and resources necessary to successfully undertake a diverse range of projects. While we offer the experience and resources of a large firm, our local leadership team will consist of local staff who have the experience, availability, and commitment to meet the City’s requirements, objectives, and timeframes. Founded in 1947 employee-owned.70years OUR HISTORY OUR RESOURCES OUR STAFF 125+ oices worldwide. Full-service planning, engineering, construction, and consulting portfolio under ONE roof. , EMPLOYEES OVER Designed and/or constructed more than 400 water treatment facili- ties providing clean and reliable water supplies to more than 350 communities across the country Delivered more than 200 federal and municipal vulnerability and response plan-related projects, many of which were in response to the Bioterrorism Preparedness and Response Act of 2002 Provided the City of Englewood with planning and design services since 1978 to implement, expand, and/or repair a variety of water treatment, storage, distribution, emergency response, and residuals management facilities Figure 1 – CDM Smith Snapshot Page 159 of 202 03 City of Englewood AWIA Risk & Resiliency Assessment & Emergency Response Plan Local Experience & Insights CDM Smith has been rooted in the Denver community for more than 40 years and has been a longstanding City of Englewood partner since 1978. Denver’s office has since grown significantly and offers a wealth of local insight into expectations, needs, and standards. Our local office is comprised of 165 technical and support resources specializing in delivering planning, engineering, design, and construction projects both locally and throughout the United States. This includes providing the City with a variety of planning, design, and construction services necessary to quickly address issues related to infrastructure improvements and regulatory compliance. These tasks ranged from improving raw and treated water quality to conducting scientific risk assessments on disposal water treatment residuals with trace amounts of radioactive materials. Our Denver office will serve as our delivery hub for the project and offers a full range of capabilities related to water and environmental services, CDM Smith has in-house construction and a wealth of ancillary support services (including electrical, mechanical, architectural, and HVAC). With a full portfolio of service offerings under “one roof,” we are able to leverage these diverse capabilities to incorporate innovative and value-added solutions while maintaining both budget and schedule. Technical Capabilities & Expertise CDM Smith is a one-stop-shop that can provide the full spectrum of water solutions from water management, infrastructure rehabilitation, and water treatment processes. Figure 2 – Facility & System Risk & Resilience: CDM Smith is a proven leader in water treatment, process, and facility analysis and design and remain on the forefront of drinking water resiliency planning. We have delivered more than 200 federal/municipal vulnerability and response plan-related projects during the last 20 years, including the previous City of Englewood ERP update in 2004. Many of these project were related to the original Bioterrorism Preparedness and Response Act of 2002 and assisted water providers identifying and prioritizing threats to drinking water and wastewater infrastructure; evaluating vulnerabilities and estimating consequences; and planning for countermeasures to reduce risk. Water Treatment Overview CDM Smith has been providing water treatment, source water protection, and water infrastructure planning, design, permitting, construction, and operations support since 1947. Since then, we have designed more than 400 water treatment facilities providing clean, reliable water supplies to more than 350 communities across the country. Over the years, we have worked on virtually every aspect of water facility inspections, water quality investigations, treatment technologies, and approaches to treatment plant design. This expertise allows us to guide clients through the complex maze of conflicting and ever-changing regulations with confidence. We can build upon our extensive experience in source water, water treatment, and delivery systems to identify a list of potential risks and vulnerabilities associated with the City’s water system by identifying essential planning, design upgrades, and improvements with your operation plans and contingency plans for power, emergency access, and continuous operations while saving you money. CDM Smith’s drinking water treatment consulting services range from pilot plant studies and specialized consultation to large complex projects requiring design, services during construction, startup/operations assistance and operator training. CDM Smith offers the experience gained from the study and design of hundreds of WTPs across the globe, and has designed new, retrofitted, or expanded water treatment plants ranging in size from less than 1 mgd to 1,260 mgd. These capabilities allow our teams to design facilities to meet complex drinking water needs while crafting integrated water resources management strategies into a variety of solutions to help stakeholders make the most of their limited resources. Risk Assessments & Emergency Planning CDM Smith provides RRAs and ERP services through the hands-on experience of our security assessment trainers and assessors, O&M specialists, process engineers, technicians, and health and safety specialists. CDM Smith has been involved with preparing more than 200 ERPs, risk management plans and vulnerability assessments locally and across the United States, including many projects in response to the 2002 Bioterrorism Act, as well as recent AWIA-related projects. Page 160 of 202 04 City of Englewood AWIA Risk & Resiliency Assessment & Emergency Response Plan Our Denver office is also heavily supporting related work efforts for Federal Emergency Management Agency (FEMA) Headquarters and multiple FEMA regions with emergency and disaster preparedness and mitigation efforts through program risk analysis, development of flood hazard mapping, post-event assessments, and building science evaluation. These risk assessments and evaluations involve similar scopes of service and skill sets to complete, and have helped CDM Smith develop information and tools that better protects citizens, public facilities, and communities. CDM Smith has completed RRAs for hundreds of large and small water systems throughout the United States. These assessments and ERP services include assessment training, security risk and threat assessment, evaluation of existing physical protection systems and procedures, security system design, and development of emergency operations plans (EOPs). CDM Smith provides system hardening recommendations and implementations by providing design and bidding services, contract management, and start-up and training services. Our experience also includes using our internal tools, as well as AWWA-approved processes and guidelines such as the Cybersecurity Use-Case Tool and the seven-step RAMCAP approach (see Section D – Figure 11, page 17) which adhere to AWWA, ASME-ITI and ANSI in the J100 and G430 guidance while facilitating compliance with AWIA. This tool was designed to be intuitive for our clients as well as our technical experts, so that our clients can utilize the tool after completion of AWIA assessment. Figure 3 – Cybersecurity Expertise & Insight: CDM Smith’s Jim Livermore is an AWWA member and a key contributor on AWWA Subject Matter Expert Panel on Cybersecurity, which recently released Water Sector Cybersecurity Risk Management Guidance document and updated the Cybersecurity Use- Case Tool—both of which support compliance with AWIA while aligning with AWWA’s J100 and G430 policies and NIST cybersecurity standards. Security Design – Cyber & Physical Water systems, chemical and industrial plants, refineries, colleges and universities are all vulnerable to both physical and cyber attacks. CDM Smith provides detailed engineering services in the assessment of threats and implementation of the means and methods to minimize risk related to these threats by providing our clients a unique blend of physical and cybersecurity innovations. The knowledge of what is being secured, as well as the latest technologies and regulatory requirements for security, allows us to provide these services, ranging from simple intrusion detection systems to complex scenario-based threat deterrent systems. Our varied expertise allows us to meet the needs of a wide variety of clients. Since 1990, CDM Smith has been committed to providing clients with value added solutions in control system configuration and implementation. Control system security is always a critical element and often times includes surveillance system analysis and design features. CDM Smith has the capability to perform detailed vulnerability assessments to identify potential weaknesses in the client’s existing infrastructure. This assessment provides the framework for developing secure systems that meet industry recommendations and requirements. CDM Smith is knowledgeable in the latest industry recommendations (including ISA 99, TR99.00.02, and NIST SP 800-82, among others) and is active in helping to develop these recommendations through strong partnerships. Our knowledge of these recommendations and requirements of certain industries allows us to provide unparalleled service. CDM Smith minimizes risk to threats by providing our clients with a unique blend of physical and cybersecurity innovations, intrusion detection and access control, tailoring custom solutions that address specific needs. Our security offerings include: ƒSecurity and risk assessments ƒRisk management framework ƒInformation security controls ƒPolicies and procedures ƒSecure software development ƒOperation and maintenance ƒVulnerability testing ƒMonitoring and incident response ƒEducation and training Page 161 of 202 05 City of Englewood AWIA Risk & Resiliency Assessment & Emergency Response Plan Asset Management Increased public and regulatory scrutiny is raising the importance of understanding how to maximize value and minimize costs of maintaining infrastructure assets. A sustainable asset management program creates a transparent and defensible capital improvement/repair and replace program with prioritized maintenance activities. It identifies how mid- and long- term requirements will change well beyond those of typical planning programs and highlights the consequences of deferring maintenance and replacement. As organizations are forced to do more with less, asset management is a highly effective method to determine needs, prioritize investments, and provide public officials an assessment of the consequences of not meeting funding needs. CDM Smith focuses on implementing asset management solutions and programs within the water, environment, transportation, energy, and facilities industries. With over six decades of experience in infrastructure management, we have assisted organizations of all sizes develop and implement successful, self-sustaining asset management programs that balance people, process, finance and technology. Our team of nationally-recognized asset management specialists works closely with our diverse client base to help implement sustainable asset management programs that benefit all levels of the organization. Enterprise-wide Business & Technology Consulting Adds Value CDM Smith’s approach to asset management program implementation considers the entire organization. Our management consulting, information technology and organizational strategy experts work in consultation with our asset management specialists. This collaboration is critical in defining and implementing more efficient business processes, proper technology solutions, and optimized organizational and training practices. Our comprehensive approach drives greater value that helps organizations achieve key business goals, lower costs, and reduce risk. Our clients expect asset management programs to enhance systems understanding and customer expectations for costs and services, while providing an approach to balance the two. Our asset management programs have enabled clients to reduce emergency repairs and system failures, increase maintenance activity and obtain increased funding. The result is reduced service failures, improved staff morale, improved regulatory performance, and effective management of costs and rates over the short and long-term. Figure 4 – Asset Management Process Foundation Elements Asset Register Level of Service & Performance Measures Business Requirements Asset Conditions Asset Criticality Remaining Life Replacement Date & Costs (Upper Limits) Renewal Plan (20-yr min) Business Case for New Investments Asset Management Outcomes Rate Stability Defensible Budget Long-Term Financial Plan System Reliability Maintenance Strategy Operations & Maintenance Page 162 of 202 06 City of Englewood AWIA Risk & Resiliency Assessment & Emergency Response Plan Project Team & Resources Project Manager Brian Daw will lead CDM Smith’s effort and will be supported by a variety of experts and support staff, including 2018 AWIA specialists Lauren Miller, Paniz Miesen, Josh Baile, and cybersecurity expert, Jim Livermore. These specialists will be supported by additional engineers and experts who have previous City experience on projects that includes Allen WTP UV Disinfection Improvements, East Clarkson Tank Repairs, Allen WTP Pump Station Upgrades, Zuni and Sherman Tank Rehabilitation, GIS Database Development, and a variety of on-call support as needs arise. This experience and insight will enable our team to effectively support and guide the City through this RRA to meet the rapidly approach deadlines. Because of the accelerated schedule, the project will require every bit of efficiency and resource depth to deliver a RRA and an ERP that are compliant, effective, and trustworthy. Together, this team will work arm-in-arm with the City to gather, review, and update necessary information prior to submittal to ensure compliance. In the end, we will develop and apply sound risk and resilience management strategies to improve and/or maintain the integrity of your drinking water supply infrastructure. Figure 5: Most Qualified Team – The structure and staffing of the CDM Smith Team is based on the premise that the most important asset the CDM Smith team brings to this project is a professional staff with the expertise to serve as the City’s advocate to develop and apply sound risk and resilience management strategies in compliance with AWIA deadlines and with standards and associated resources (e.g., G430, G440, J100, AWWA M19, and Cybersecurity Guidance.) * Certified by AWWA in Utility Risk & Resilience Figure 6 – Organizational Chart PROJECT MANAGER Brian Daw, PE CLIENT SERVICE LEADER Josh Baile, CWP * RISK & RESILIENCE ASSESSMENT & ERP Paniz Miesen* WORKSHOP FACILITATION Josh Baile, CWP * FACILITIES EVALUATION Brian McKee, PE CYBERSECURITY ASSESSMENT Jim Livermore, CISA, CIRSC SUBJECT MATTER EXPERTS Watershed Management Eli Gruber, PE Pipelines & Pump Stations Tom Charles, PE, BCEE Cost-Benefit Analysis Greg Dye, PE, PMP Water Treatment Planning, Design & Construction Doug Brown, PE, BCEE Water Supply Quality & Resource Management Brian Bennett Structural Brian O’Connor, PE Cyber Risk Assessment Matt Lick, PE Geographical Information Systems Mike Schultz, GISP, CFM Cost Estimating Todd Stalnaker TECHNICAL ADVISORS Lauren Miller* Sue Morea Page 163 of 202 07 City of Englewood AWIA Risk & Resiliency Assessment & Emergency Response Plan BRIAN DAW, PE | PROJECT MANAGER Experience: 24 years | Location: Denver, CO Brian is a civil and environmental engineer with 24 years of experience in planning, designing, and constructing a variety of water and wastewater systems. He specializes in potable water treatment and disinfection processes, and distribution and storage system modeling and regularly leads multi-disciplined teams to deliver effective and trustworthy decisions. He is a proven leader who regularly provides guidance and design support related to site-civil, distribution and collection systems, water/ wastewater pump stations, treatment, and storage. He also promotes respectful dialogue, transparency, accountability, and trust— from start to finish—and has the technical know-how and availability to lead the City’s risk and resiliency project. He is excited to once again work with the City to assist staff in meeting critical deadlines, requirements, and expectations. JOSH BAILE, CWP | CLIENT SERVICE & TASK LEADER – WORKSHOP FACILITATION Experience: 25 years | Location: Denver, CO Josh has 25 years of experience in utility and resource management—both as a consultant and a public-sector manager, administrator, and operator. In addition to an MBA, Josh is certified by AWWA in Utility Risk and Resilience and is also a Class-A Water Treatment Facility and Class-4 Distribution Operator. He also has extensive experience operating, maintaining, and managing utility CIP programs and projects, organizational structures, and regulatory affairs; and is routinely involved in promoting sustainable efforts in the continuous improvement of drinking water supplies, infrastructures, and watershed protection. As the Client Service and Task Lead for Workshop Facilitation, Josh will be responsible for facilitating an interactive workshop that will be instrumental in identifying value-added and/or sustainable solutions and alternatives. He will also be responsible for overall City satisfaction and delivering the project in alignment with the City’s levels-of-service and performance measures; and will support Project Manager Brian Daw by ensuring that project has the necessary resources to respond to the project’s needs throughout both phases. PANIZ MIESEN | TASK LEADER – RISK & RESILIENCE ASSESSMENT & ERP Experience: 10 years | Location: Denver, CO Paniz is an environmental scientist with 10 years of experience in water quality and watershed management, specializing in source water protection, vulnerability assessment, hazard mitigation planning, pollution source identification, stormwater management, water quality assessment, and watershed planning. She is also certified by AWWA in Utility Risk and Resilience and by HAZWOPER in Occupational Health and Safety, and understands the ins-and-outs associated with improving facility and worker safety, planning, and resiliency. She will bring these skills to bear as the Task Leader for the Risk and Resilience Assessment and ERP Update and will provide the City with a trustworthy ERP that identifies the City’s risks and the best means possible in which to eliminate, reduce, and/or respond to threats along with priorities, costs, and alternatives. BRIAN M c KEE, PE | TASK LEADER – FACILITIES EVALUATION Experience: 21 years | Location: Denver, CO McKee is a structural project manager/engineer with 21 years of experience in structural engineering and the environmental, water, and wastewater industry. He works primarily on the structural design and rehabilitation/expansion of water and wastewater treatment plants (WTP and WWTP), water storage reservoirs and distribution systems. He has extensive City experience that includes a variety of inspections and improvements associated with Allen WTP UV disinfection, elevated storage tanks and pipeline rehabilitation, pump station upgrades, and reservoir inspections. Brian will lean on this experience insight to effectively guide the City’s facilities evaluation associated with the RRA and ERP update. Page 164 of 202 08 City of Englewood AWIA Risk & Resiliency Assessment & Emergency Response Plan Key Staff / Resources Name / Location Role Qualifications Lauren Miller Boston, MA Technical Advisor – AWIA / Risk & Resilience Assessment ƒ15 years of experience specializing vulnerability assessments, risk and resiliency plans, adaptation plans, and greenhouse gas mitigation strategies ƒCertified by AWWA in Utility Risk & Resilience and is a subject matter expert in the 2018 AWIA Sue Morea Denver, CO Technical Advisor – Drinking Water Quality & Regulations ƒWater resources specialist with 34 years of experience and specializes in water supply planning and water quality improvement strategies ƒServed as Technical Director for statewide water plans in CO, AR, MO, OK, CT, GA, and SC Jim Livermore, CISA, CRISC Boston, MA Task Leader – Cyber & Physical Security Assessment ƒCybersecurity expert with 30 years of experience specializing in IT operations, compliance, security, and risk management ƒIndustry leader regarding security risk assessments, compliance requirements, data protection, emerging technologies, and security awareness training Eli Gruber, PE Denver, CO SME – Watershed Management ƒWater resources engineer with 10 years of experience specializing in H&H modeling/design, stormwater modeling/design, river master planning, and Colorado water rights analysis ƒServes as the technical leader and SME for large FEMA H&H modeling and floodplain analysis projects for 2D hydraulic modeling in FEMA Region VIII Tom Charles, PE, BCEE Denver, CO SME – Pipelines & Pump Stations ƒCivil engineer with 34 years of experience specializing in water supply and water and wastewater conveyance systems throughout the Front Range ƒUnderstands engineering principles to evaluate potential problems and recommend/implement solutions associated with drinking water supply, treatment and transport infrastructure Doug Brown, PE, BCEE Denver, CO SME – Treatment Planning, Design & Construction ƒNationally recognized water treatment expert with 36 years of experience and specializes in a wide variety of treatment technologies and system planning/design ƒServed as project manager for the preliminary design and pilot testing of the City of Englewood’s 28-mgd UV disinfection system, which included pilot testing for both medium-pressure and low- pressure high-output UV systems Greg Dye, PE, PMP Denver, CO SME – Cost-Benefit Analysis ƒCivil and environmental engineer with 34 years of experience planning, designing, and constructing water infrastructure and advanced water treatment processes ƒServed as the project manager for the City of Englewood Allen WTP Upgrades, which included preliminary design, final design and construction support Table 1 – Staff Qualifications Page 165 of 202 09 City of Englewood AWIA Risk & Resiliency Assessment & Emergency Response Plan Key Staff / Resources (continued) Name / Location Role Qualifications Brian Bennett Denver, CO SME – Water Supply Quality & Resource Management ƒEnvironmental scientist with 15 years of experience as a project manager, task leader, and project scientist focused on resolving water quality and environmental contamination issues ƒSpecializes in surface/groundwater quality assessments, contaminated sediment assessments, environmental impact statements, water supply planning, stream restoration, litigation support, TMDL evaluations, and NPDES permitting Brian O’Connor, PE Denver, CO Task Leader - Facility Evaluation ƒStructural engineer with 11 years of experience in utility inspection, design, and construction ƒHeavily involved in facility condition assessments, and supported the firm’s FEMA teams in related efforts Matt Lick, PE Boston, MA SME – Cybersecurity Risk Assessment ƒAutomation engineer with eight years of experience in I&C system analysis and design with in-depth cybersecurity/ automation knowledge-base to help assess risks and responses Mike Schultz, GISP, CFM Denver, CO SME – Geographical Information Systems ƒGIS and floodplain/mapping specialist with 15 years of experience developing complex data for GIS projects, including flood hazard mapping, environmental assessments, and regulatory compliance Todd Stalnaker Denver, CO SME – Cost Estimating ƒCost estimator with 25 years of experience in water and wastewater treatment plant and conveyance construction specializing in preparing conceptual, preliminary design, and final design estimates Project Experience & References CDM Smith is a proven leader in water treatment, process, and facility analysis and design. We are also industry leaders in resiliency planning and have successfully delivered more than 200 federal/municipal vulnerability and response plan-related projects during the last 20 years, many of which were related to the original Bioterrorism Preparedness and Response Act of 2002 and assisted water providers identifying and prioritizing threats to drinking water and wastewater infrastructure; evaluating vulnerabilities and estimating consequences; creating modeling tools for vulnerability and consequence assessment; and improving risk management; and planning for countermeasures to reduce risk. As a result of this experience, we have been involved with preparing and tailoring a wide variety of vulnerability assessments and response plans locally and across the United States and are well prepared to address all threats and hazards identified in the recently passed 2018 AWIA and as new guidelines are announced. In addition to recent AWIA-related projects such as the City of Fort Worth (TX), North Texas Municipal District (NTMWD), Lee County (FL), and Middlesex Water (NJ), CDM Smith developed a water security and ERP training programs for the Texas Commission for Environmental Quality (TCEQ). We are also heavily involved in supporting Federal Emergency Management Agency (FEMA) Headquarters and multiple FEMA regions with emergency and disaster preparedness and mitigation efforts through program risk analysis, development of flood hazard mapping, post-event assessments, and building science evaluation. These assessments and evaluations involve very similar scopes of services and skill sets to complete, and ultimately lead to the development of information and tools to better protect citizens, public facilities, and communities. Page 166 of 202 10 City of Englewood AWIA Risk & Resiliency Assessment & Emergency Response Plan Honolulu AWIA Risk & Resiliency Assessment & ERP Update Honolulu Board of Water Supply (HI) – 2019 Due to the island’s sensitivity to threats and changing conditions, CDM Smith was selected based on our ability to guide the assessment and ERPs process in accordance with the latest industry guidelines provided by ANSI/ and AWWA, including J100 RAMCAP, AWWA G430 AWWA Security Practices for Operation and Management. Figure 7 – CDM Smith’s Vulnerability, Risk, and Resiliency Planning Experience Fort Worth Risk & Resiliency Assessment & ERP Fort Worth Water Department (TX) – 2019 CDM Smith was selected to perform a RRA, develop/updated an ERP, and achieve EPA certification while adhering to AWWA guideline manuals including J100 RAMCAP and G440. WA OR ID MT ND MN IA WI IL IN MI OH WV PA MD DEDC NJ NY VT NH MA CT RI ME SD NB KS OK MO AR LA MS AL FL GA SC NCTN KY VA WY NV UT AZ NM CO TX CA = 2018 AWIA Act = Bioterrorism Act of 2002 = Resiliency Experience Englewood Vulnerability Assessment in Response to the Bioterrorism Act of 2002 City of Englewood (CO) – 2004 CDM Smith was selected to provide the City with a vulnerability assessment and ERP that identified and prioritized specific threats— particularly terrorist scenarios—associated with City’s water system infrastructure. CDM Smith guided the overall process, developed an executive summary, and assisted with EPA certification Lee County Risk & Resiliency Assessment & ERP Lee County Public Utilities (FL) – 2019 CDM Smith supports Lee County through a program management contract, which included a vulnerability assessment, ERP update, and adherence to AWIA and AWWA guideline manuals (J100, G430, and G440). CDM Smith has completed more than 200 vulnerability, risk, and resiliency-related projects. This map does not reflect all 200 projects, but highlights those projects that have similar component(s) to the current scope of work. It demonstrates our breadth of experience and ability to evaluate natural hazards and malevolent acts. Figure 8 – CDM Smith’s Proprietary Risk & Resiliency Planning Tool: A screenshot of just one of the tailor-made tools we have developed for each individual community where we provide risk planning, mitigation, and resiliency solutions with priorities and alternatives to address vulnerabilities, priorities, cost, and timeframe. Page 167 of 202 11 City of Englewood AWIA Risk & Resiliency Assessment & Emergency Response Plan 2 PROJECT Middlesex Water AWIA Risk & Resilience Assessment CDM Smith is serving as a collaborative partner to guide, support, and assess Middlesex Water Company’s robust network of assets that collectively provide consumers with high-quality, good-tasting drinking water. By combining knowledge of Middlesex Water Company’s systems/processes with our insights into water system infrastructure and physical/cybersecurity, CDM Smith is providing Middlesex Water Company with a tailored approach to identify specific recommendations to maximize facility, system, and network security. CDM Smith has a longstanding history with Middlesex Water Company and was selected to provide engineering and specialty analysis services in response to the 2018 AWIA’s mandated RRA and ERP requirements, which requires public drinking water suppliers to assess the security and resiliency of their systems in response to “natural hazards” that had not been previously assessed under previously required vulnerability assessments and focuses on natural disasters, site contaminations, acts of vandalism, facility break-ins, drone attacks, acts of terrorism, physical altercations, and other forms of malevolent acts. CDM Smith will prepare an ERP within six months of the certification of the RRA that will also be certified as complete by the EPA. This work will follow the AWWA guideline manuals including J100, G430, and G440. Key elements include: Pipes and constructed conveyance systems, physical barriers, source waters, water collection and intake, pretreatment, treatment, storage/distribution facilities, electronic/automated systems; monitoring practices; financial infrastructure (such as billing mechanisms); chemical usage, storage, and handling practices; operation and maintenance; and capital and operational needs for risk management. Reference Middlesex Water Company Robert Fullagar, Assistant Vice President of Operations 485 C Route 1 South, Suite 400, Iselin, NJ 08830 / (732) 644-1500 / RFullagar@middlesexwater.com Reference Honolulu Board of Water Supply Barry Usagawa, Water Resources Program Administrator 630 S Beretania St, Honolulu, HI 96843 / (808) 748-5900 / BUsagawa@hbws.org 1 PROJECT Honolulu AWIA Risk & Resiliency Assessment & ERP Update One of CDM Smith’s for AWIA response project for the Honolulu Board of Water Supply’s (BWS) is under a fully comprehensive update to its 2002 RRA and ERP to comply with AWIA. Due to the island’s sensitivity to threats and changing conditions, CDM Smith was selected based on our ability to guide the assessment and ERPs process in accordance with the latest industry guidelines provided by ANSI/ and AWWA, including J100 Risk Analysis and Management for Critical Asset Protection (RAMCAP), AWWA G430 AWWA Security Practices for Operation and Management. CDM Smith is developing the work in a two-phased approach. Phase I includes collection of information and updating the goals/objectives, applying the new EPA-identified threats and locally identified threats, and establishing a draft list of assets and a prioritized list of critical assets. Phase II will assess the priority list for vulnerabilities and risk to natural and human threats and update the ERP. Other deliverables include maps, site plans, and sketches for each critical asset; a recommended list and planning level cost for options identified as risk management activities; action plans for threats to high risk critical assets; and “certification letters” confirming compliance with EPA requirements—one for risk assessment and one for ERP update. Along with following the RAMCAP Process, tools being used in this assessment include: Risk Assessment Methodology, Vulnerability Self-Assessment Tool (VSAT), and Security and Environmental Management System (SEMS). Page 168 of 202 12 City of Englewood AWIA Risk & Resiliency Assessment & Emergency Response Plan 4 PROJECT TCEQ Water Security Training Program & ERP In early 2018, CDM Smith developed and hosted a webinar for the TCEQ to guide participants through the US EPA’s risk assessment application for water, wastewater, and combined utilities: the Vulnerability Self-Assessment Tool (VSAT). VSAT employs the Risk Analysis and Management for Critical Asset Protection (RAMCAP) methodology to quantify risk from natural and manmade hazards. The webinar was designed to be followed by a workshop to instruct participants on how to utilize the results of their vulnerability assessment to complete an ERP. With the passage of the 2018 AWIA, TCEQ sole-sourced CDM Smith to expand their training and education scope to address new requirements for ERPs, RRAs, and develop Regional Water Resiliency workshops. CDM Smith held the expanded ERP workshops at strategic locations across Texas in order to be accessible for smaller municipalities in underserved areas. CDM Smith also coordinated with the TCEQ to provide four hours of continuing education credits (CEUs) for drinking water. The ERP workshops were designed with an interactive and small group format to facilitate collaboration amongst attendees, who represented both large and small utilities as well as local regulatory agencies and consultancies. The innovative format also included a participant workbook which provides registrants with an outline and examples for completing each section of an ERP. Both the ERP workshops, the Regional Water Risk & Resiliency workshops, will be held in Fall 2019 at strategic locations across the state with emergency response partners from the region. The round table discussion format will allow water utility personnel to interact with emergency response partners from their region, providing invaluable information and the opportunity for coordination before an incident occurs. Through this partnership, CDM Smith has also been invited to present and the TCEQ’s annual Public Drinking Water conference for the last two years. Reference Texas Commission on Environmental Quality Leticia De Leon, Team Leader 12100 Park 35 Circle, Austin, TX 78753 / (512) 239-4978 / Leticia.Deleon@tceq.texas.gov PROJECT 3 NTMWD AWIA Risk & Resiliency Assessment & ERP Having supported NTMWD for nearly 20 years, CDM Smith was selected to provide specialty analysis services in response to the 2018 AWIA-mandated RRA requirements. The District owns and operates three water treatment plants totaling more than 800 mgd in capacity and serves a rapidly-growing population in the north and east Dallas suburbs of approximately 1.7M people. In addition to the WTP evaluation, CDM Smith is assessing the NTMWD’s raw water storage, intake, and transmission systems including assets associated with Lake Texoma, the new Bois d’Arc Lake, and the assets associated with the three existing WTPs. CDM Smith is also evaluating capital and operational needs, risk, and resilience and will identify priorities, cost estimates, and opportunities for third-party funding to assist with any necessary solutions. Within six months of delivering the assessment, we will develop an ERP that adheres to AWWA guideline manuals, including J100 and G440. The ERP will include findings from the risk assessment, as well as strategies and resources required to improve system resilience and preparedness—for both physical and cybersecurity. Due to the increasing likelihood of cyber threats in the future, we have partnered with Gupta and Associates to provide a fully comprehensive assessment of the District’s cybersecurity vulnerabilities to help drinking system operators prepare for the increasingly inevitable cybersecurity attacks. Reference North Texas Municipal Water District Galen Roberts, Water Operations & Tech Support Manager 501 E Brown Street, Wylie, TX 75098 / (972) 442-5405 / GRoberts@ntmwd.com Page 169 of 202 13 City of Englewood AWIA Risk & Resiliency Assessment & Emergency Response Plan Project Approach CDM Smith Approach to Project Management – Phases 1 & 2 CDM Smith will begin the work with a kickoff meeting with the City to review the scope of work tasks, data needs, staff coordination, and schedule milestones to be achieved. CDM Smith will facilitate that meeting with the City’s Project Manager and representatives to confirm project goals and key stakeholders for the project. CDM Smith will perform project management tasks throughout the project, to include the day-to-day administrative, technical, and financial management of the project activities to ensure that the project budget, schedule, scope, and quality objectives are achieved. This effort will include invoicing and progress, and quality assurance/quality control (QA/QC) review of the work. CDM Smith’s designated Project Manager Brian Daw will keep the City’s Project Manager informed of the status of the project work and will coordinate activities with the City’s Project Manager. ƒCDM Smith will prepare a detailed project schedule that provides the different project tasks, activities and key project milestones. This schedule will be developed for Phase 1 and Phase 2 tasks, respectively, and updated monthly. Monthly invoices will be prepared and submitted based upon the work performed the previous month. A monthly status report that includes the invoice, list of work performed during the month, and an updated project schedule will be provided. ƒCDM Smith will employ its firm’s written QA/QC procedures throughout the course of the Project and work assignment. ƒCDM Smith’s Project Manager will coordinate with the City’s Project Manager throughout the course of the project to keep the City’s Project Manager up to date on project status and schedule. It is anticipated that brief bi-weekly meetings or calls will be conducted between the two project managers. ƒCDM Smith will return all copies of the City’s documents collected by CDM Smith as part of Phase 1 at the completion of Phase 2 of the project. Deliverables: Detailed project schedule; Project invoices with monthly status report and schedule update Figure 9 – Key Project Phases PHASE 01 PHASE 02 Project Management & Kicko Meeting Detailed Project Schedule Review Framework & Data Collection for the Allen Water Filter Plant’s Existing Materials Prioritize Critical Assets Review of Threat Scenarios & Development of Threat-Asset Pairs Consequence & Vulnerability Workshops Threat Likelihood Analysis Risk & Resilience Assessment Develop Risk Management Activities & Mitigation Strategies Page 170 of 202 14 City of Englewood AWIA Risk & Resiliency Assessment & Emergency Response Plan Phase 1 – Scope of Services CDM Smith will perform the following scope of services inventory and prioritize critical assets for the City’s RRA. These activities will be conducted in accordance with American Water Works Association (AWWA) standards – specifically the “Risk and Resilience Management or Water and Wastewater Systems” (ANSI/AWWA J100-10 (R13)) and the “Emergency Preparedness Practices” (ANSI/AWWA G440-17) for guidance. Phase 1 results will identify and prioritize critical assets and will be used to establish Phase 2 and the ultimate completion of the City’s Allen Water Filter Plant’s AWIA-compliant RRA and ERP update. Task 2: Review Framework & Data Collection for the Allen Water Filter Plant’s Existing Materials CDM Smith will facilitate a kickoff meeting to be held in person with City representatives to confirm project goals and key stakeholders for the project. Prior to the kickoff meeting, CDM Smith will prepare a questionnaire to be introduced at the meeting to include documentation of the City staff’s institutional knowledge and understanding of system redundancies and vulnerabilities. The City staff will complete the questionnaires and return them to CDM Smith within two weeks following the kickoff meeting. CDM Smith will summarize the following existing information to be provided by the City at the start of the project: ƒGIS/asset management program underground assets, ƒLocations and facility descriptions of above-ground assets, ƒLocations and descriptions of source water resources ƒOperating plans, costs, and data (e.g., labor, power, chemicals, residuals disposal, etc.), ƒWater quality and production data (to address potential changes/costs from threats and hazards), ƒPreviously prepared vulnerability assessments, ƒPreviously prepared ERPs and associated annexes or documents; and ƒBusiness Continuity Plans and associated appendices and annexes. CDM Smith will perform an initial review of the above documents then prepare a data needs list of additional information needed for this effort. CDM Smith will also review existing data based on the AWWA J100 and G440 guidelines and the additional guidance released by the EPA in August 2019 to identify additional criteria and procedures needed to be included in the AWIA RRA or ERP. As part of this task, CDM Smith will prepare and submit a brief Data Collection Memorandum documenting existing information collected and its applicability in completion of the remaining tasks under Phase 1 and 2 of the scope of services. CDM Smith will also identify potential data gaps and additional tasks to address the data gaps. At the completion of the project, CDM Smith will return all hardcopies of project files to the City. Deliverables: Data Collection and Evaluation memo with a list of potential data gaps and action items to address potential gaps Task 3: Prioritize Critical Assets As part of this task, CDM Smith will use the data and information collected under Task 2 to identify critical assets at the City’s treatment and distribution infrastructure. During initial asset identification, the following will be performed: ƒIdentification of critical assets, critical functions, and supporting infrastructure. ƒIdentification of the critical internal and external supporting infrastructure which will include Operations & Maintenance, Monitoring Practices and Financial Infrastructure. This includes identifying existing protective countermeasures and mitigation measures/features. CDM Smith proposes modifying the assets to match categories required under the AWIA (e.g., as pipes and constructed conveyances, physical barriers, treatment facilities, storage). Upon approval of the draft list of critical assets, CDM Smith will prioritize the identified critical assets using the following metrics: ƒFacilities’ individual impact on meeting the City’s mission to deliver potable water to its customers by integrating prioritization decisions with the City’s Levels of Service and Performance measures. ƒFacilities’ baseline consequence of failure analysis. Page 171 of 202 15 City of Englewood AWIA Risk & Resiliency Assessment & Emergency Response Plan CDM Smith will facilitate a half-day meeting with the City to review the list of assets, evaluate the asset impact on meeting the City’s mission to deliver safe potable drinking water, and conduct a baseline consequence of failure analysis. The Phase 1 baseline consequence of failure analysis will provide a high-level estimate of the reasonable worst-case monetary consequence resulting from the failure or loss of each asset, without regard to threat. This baseline dollar value associated with the failure of each identified critical asset may include an evaluation of factors such as revenue losses per day and potential repair or rebuild costs upon asset failure. Results from the Phase 1 baseline consequence of failure analysis will be further refined during Phase 2 of the project to account for a more detailed consequence of failure evaluation for each threat-asset pair using the RAMCAP methodology. Upon completion of the half-day meeting with the City, CDM Smith will develop a technical memorandum summarizing the work done under Task 3 with a final list of prioritized critical assets. The prioritized assets will be further assessed in accordance with AWIA requirements during Phase 2 of the project. Deliverables: Draft list of critical assets and a technical memo with a list of prioritized assets based on baseline consequence of failure analysis results Phase 2 – Scope of Services In coordination with Phase 1 tasks, CDM Smith proposes the following scope of services to complete Phase 2 of the RRA. Phase 1 results will inform Phase 2 of the assessment. Upon completion of Phase 2, CDM Smith will provide the City with RRA and ERP update that conforms to AWIA requirements for the City’s self-certification with the EPA. The following scope may be revised dependent on Phase 1 results. Task 2: Review of Threat Scenarios & Development of Threat-Asset Pairs CDM Smith will conduct an initial threat characterization based on the information in the questionnaires and CDM Smith’s knowledge of the City’s Allen Water Filter Plant acquired through Phase 1 of the project. The initial threat characterization will identify threats to the water system from a comprehensive “all-hazards” list of malicious acts and natural hazards in the J100 Appendix E guidance. Other resources that will be used to help characterize threats to the City’s water system include EPA guidance documents, local county-wide hazard mitigation and emergency response / operations plans, and additional vulnerabilities and threats as identified by the City. In addition, the characterization will include an evaluation of threats to: ƒSupervisory Control and Data Acquisition (SCADA) System and Power Supply Systems ƒFinancial Systems, Customer Billing Systems, Work Order Systems, and Call Center Technologies ƒAssets and systems related to ensuring the City facilities can treat water to meet or exceed the Colorado Primary Drinking Water Regulations. Once an initial threat characterization is complete, CDM Smith will work with the City to identify for those threats associated with the identified assets. A final list of initial threat-asset pairs will be submitted to the City for review and approval and will be the basis for the risk and resiliency analyses throughout the rest of the J100 Risk Analysis and Management for Critical Asset Protection (RAMCAP) process. Deliverables: Introduction to the Excel based AWIA RRA Tool; Initial threat characterization matrix; List of initial threat-asset pairings Tasks 3 and 4: Consequence & Vulnerability Workshops Following completion of the initial threat characterization and threat-asset pairings, CDM Smith will facilitate a workshop with City leadership and subject matter experts across the production, transmission, water treatment plants, SCADA and financial sections. CDM Smith will provide a workshop agenda and preliminary information to participants prior to the meeting. The workshop will focus on discussing and evaluating threat vulnerabilities for the identified high-priority threat-asset pairs. Additionally, the baseline consequence of failure results from Phase 1 will be revised as appropriate using the RAMCAP methodology for each threat-asset pair. Information gathered during the workshop will provide the basis for evaluating threat vulnerabilities and calculating threat-based worst reasonable potential consequences for each threat-asset pairing. Page 172 of 202 16 City of Englewood AWIA Risk & Resiliency Assessment & Emergency Response Plan Assets may be categorized into broad groups as necessary to move the discussion forward. In order to conduct the vulnerability and consequence analyses for the identified threat-asset pairs, the following will be discussed during the workshops: ƒVulnerability Assessment: For the high priority threat-asset pairs, vulnerability is determined by estimating the likelihood of an occurrence to the ‘‘all-hazards’’ threat. The output for a vulnerability analysis of malevolent incidents is the likelihood of success of the adversary for each specified attack scenario on each threat–asset pair, given that the attack is carried out. The parallel concept for natural hazards is the likelihood that the hazard will produce the consequences already estimated, given that the hazard occurs. This is expressed in a numerical value from zero (the threat is unlikely to occur and produce the consequence) to one (the threat is very likely to occur and produce the consequence). ƒConsequence Analysis: Evaluate the defined consequence metrics or criteria (such as financial, casualties, loss of revenue, or regional economic impact) for each threat-asset pair. The RAMCAP methodology is used to define ranges of consequence and analyze based on the consequence metrics for each threat-asset pair following the RAMCAP process and are measured in dollars. This evaluation will build on the baseline consequence of analysis results from Phase 1. The J100 guidance recommends that a core team of the City staff collaborate at the workshop, including members from the City’s security, safety, treatment/distribution, O&M, IT and finance sections. Additional stakeholders that may attend include legal, HR, customer service, finance, laboratory, interconnected systems, and local first responders. This workshop will provide an efficient method to gather and refine institutional knowledge about hazards, risks, and resilience from the City by: ƒUnderstanding connections between ongoing issues and challenges, hazards, and current plans or actions ƒIdentifying vulnerabilities to inform the risk and resilience profiles for the threat-asset pairs under J100 ƒDeveloping and prioritizing actions to improve resilience that inform the ERP The “all-hazards” approach should include both short-term and long-term consequences for at least the following hazards (or threats): ƒMalevolent acts, both internal and external: »Assault on Utility – Physical »Contamination of Finished Water – Accidental or Intentional »Theft or Diversion – Physical »Cyber Attack on Business Enterprise Systems »Cyber Attack on Process Control Systems »Sabotage – Physical, such as vandalism, arson, or facility intrusions. »Contamination of Source Water – Accidental or Intentional ƒNatural hazards (as applicable), such as Climate Change, Floods, and Wildfires Deliverables: Workshop agenda with background materials; Workshop summary notes; Populated risk matrix for hazards and critical assets resulting from the workshop Tasks 5: Threat Likelihood Analysis Threat likelihood is expressed in a numerical value from nearly zero (the threat is unlikely to occur) to one (the threat is certain to occur) and is the final component needed to complete the RRA calculations. CDM Smith will use the information gathered from Phase 1 of the project, communications with the City, and results from the workshop to conduct the threat analysis using J100 guidance to estimate the likelihood or frequency of “all-hazards” threats using the proxy measure, best estimate, or conditional assignment and the probability of natural hazards and likelihood of dependency or proximity hazards. When evaluating the threat likelihood of natural hazards to the water system, CDM Smith will compare maps of the City facilities against available natural hazard maps (e.g., flood maps, wildfire maps, seismic maps) to estimate a threat likelihood for the high-priority critical assets. For malevolent acts, baseline threat likelihood values from the EPA guidance document “Baseline Information on Malevolent Acts for Community Water Systems”, released in August 2019, will be used in the RRA calculations. Deliverables: Updated risk matrix for hazards and critical assets to include results from the threat likelihood analysis Page 173 of 202 17 City of Englewood AWIA Risk & Resiliency Assessment & Emergency Response Plan Task 6: Risk & Resilience Assessment After the completion of the workshop and threat likelihood analysis, CDM Smith will conduct the formal RRA. This will be conducted using the Excel based CDM Smith AWIA RRA tool, which is consistent with the AWWA J100 and AWIA requirements, to provide documents in a consistent manner. This RRA will build off the vulnerability, threat likelihood, and consequence analyses conducted during Tasks 3, 4, and 5. The final product will include a report with an executive summary of the methods and results. The tool will follow the RAMCAP method in the AWWA J100 guidance. Key components include: ƒCalculate risk for each threat-asset pair as the product of the results from Consequence Analysis, Vulnerability Analysis, and Threat Analysis. ƒThe methodology, findings, costs, and recommendations of the RRA will be documented in a report format, including an executive summary. ƒAn electronic copy of the draft RRA Report will be provided to the City for review. CDM Smith will meet with the City to review these draft reports during a half-day meeting prior to completion of the final reports. ƒCDM Smith will incorporate the City’s written comments on these draft reports into the final RRA Report. ƒCDM Smith will assist the City in completing the required EPA certification process. CDM Smith will provide the City with the needed documentation for review by November 1, 2020 with the understanding that the City will review and return a consolidated set of comments and modifications that meet the December 31, 2020 deadline. Deliverables: Half-day meeting agenda; Meeting summary notes; Draft and Final RRA Report in Microsoft Word format; AWIA RRA Tool update Task 7: Develop Risk Management Activities & Mitigation Strategies Based on the findings of the RRA, CDM Smith will work with the City to develop methods to minimize risk to high-risk system components. Risk management strategies will only be developed for the highest risk assets. Development of mitigation strategies will be based on AWWA G430, NIST 800 and ISO 27001 standards as well as input from the City. Risk management activities included in the existing ERP and operations plans will also inform the development of appropriate mitigation strategies for the City’s high-risk assets. A Benefit Cost Analysis (BCA) for the mitigation strategies will be calculated to assess the feasibility of performing the identified measures. Figure 10 – AWIA Risk Tool Based on the results of the risk management assessment, CDM Smith will provide BCA calculations for each identified mitigation strategy for the City to consider. Information about the mitigation strategies and BCAs will be incorporated into the CDM Smith RRA Tool. The defined mitigation strategies and BCA calculations will inform the ERP update under Task 9. Deliverables: Updated AWIA RRA Tool with results from risk management assessment Page 174 of 202 18 City of Englewood AWIA Risk & Resiliency Assessment & Emergency Response Plan Task 8: Reporting and Continuous Improvement Planning Upon completion of Task 6, CDM Smith will prepare documentation of the means and methods for performing the RRA, including implementation and full use of the CDM Smith AWIA RRA Tool. This documentation will be provided for the City to use in the future. CDM Smith will also provide the City staff training on the use of the RRA Tool including the methods used for assessment. A one-day training session will be provided for the City staff. The training and documentation will provide the tools necessary to allow the City staff to update AWIA RRA Tool as facilities are added to the system or conditions change, and will provide the means for the City staff to update the RRA in- house for the next 5-year assessment that must be performed and certified to the EPA. Deliverables: Training documents; Documentation for using the AWIA RRA Tool Task 9: Emergency Response Plan Update As part of this task, CDM Smith will review and update the current ERPs for the City’s facilities to incorporate additional items from the AWIA not currently covered in the plans. No new ERPs will be developed. This will build upon existing ERP and associated infrastructure. CDM Smith will provide guidance and input on actions that may be taken on by the water system based on the outcome of the RRA and risk reduction assessment from Tasks 6 and 7, respectively. The City’s ERPs will be updated based on the most current AWWA and EPA standards and will incorporate the findings from the RRA not currently included in the ERPs to include: ƒStrategies and resources to improve resilience, including physical security and cybersecurity; ƒPlans, procedures, and equipment for responding to a malevolent act or natural hazard; ƒActions, procedures, and equipment to lessen the impact of a malevolent act or natural hazard (e.g., alternative source water, intake relocation, and flood protection barriers); ƒStrategies to detect malevolent acts or natural hazards. It is anticipated that the City will provide Word documents for use in updating the existing ERPs. An electronic copy of the updated draft ERP will be provided to the City for review by May 1, 2021. The City will review and return a consolidated set of comments and modifications to CDM Smith by May 31, 2021. CDM Smith will incorporate the City’s written comments on this draft report into a final ERP to be provided to the City by June 15, 2021. CDM Smith will assist the City to complete the EPA certification process for the ERP no later than six months following certification of the RRA but no later than June 30, 2021. Deliverables: Draft and Final ERPs in Microsoft Word format Cost Estimate & Schedule CDM Smith has provided pricing / fee estimate based (see Table 2) on the preliminary scope of work, AWIA requirements, and AWWA and industry guidance documents. The estimate includes a breakdown by phase/task, project team member and other direct costs.We have also developed a preliminary schedule (see Table 3) based on the scope of work and AWIA requirements. However, we remain open to further negotiating specific dates and project acceleration where needed and/or feasible. CDM Smith has a history with the City of Englewood dating back to 1978 and includes preparing the City’s 2004 Emergency Response Plan. A lot has changed since then in terms of threats, infrastructure, and solutions. We also remain at the forefront of the industry in assessing drinking water risks and AWIA compliance requirements. We will leverage the expertise of local and national experts, as well as City insights, to efficiently investigate, assess, and recommend solutions that you can trust to protect your system and community in the years to come. Page 175 of 202 19 City of Englewood AWIA Risk & Resiliency Assessment & Emergency Response Plan Table 2 – Fee Estimate Task Description CSL PM Advisors RRA Lead Facility Eval Lead Cyber Lead Cyber Support GIS Support Cost Estimating Structural Engineer Engineer 3 & 4 Engineer 1 & 2 Cont. Admin PCS Support Admin Support Total Labor Direct Expenses Total Cost $199.26 $236.45 $146.96 $102.86 $174.92 $270.99 $151.46 $150.47 $109.64 $84.37 $100.35 $79.94 $90.23 $55.00 $83.08 Baile Daw Miller, Morea Miesen McKee Livermore Lick Schultz Stalnaker O’Connor TBD TBD TBD TBD TBD PHASE 1 – REVIEW EXISTING DOCUMENTS Task 1 – Project Management & Deliverables -6 -4 --------6 6 -$3,025 $191 $3,216 Task 2 – Document Review & Data Collection 6 -32 4 4 -12 --20 ----$11,157 $639 $11,796 Task 3 – Prioritize Critical Assets 8 4 -24 4 ----8 8 ----$8,084 $341 $8,425 PHASE 1 – SUBTOTAL 14 hrs 10 hrs -60 hrs 8 hrs 4 hrs -12 hrs -8 hrs 28 hrs -6 hrs 6 hrs -$22,267 $1,171 $23,438 PHASE 2 – CONDUCT RISK & RESILIENCE ASSESSMENT Phase 2 Estimate 76 38 16 160 10 10 20 8 20 -60 52 12 8 16 $80,080 $3,740 $83,820 PHASE 2 – SUBTOTAL 76 hrs 38 hrs 16 hrs 160 hrs 10 hrs 10 hrs 20 hrs 8 hrs 20 hrs -60 hrs 52 hrs 12 hrs 8 hrs 16 hrs $80,080 $3,740 $83,820 TOTAL 90 hrs 48 hrs 16 hrs 220 hrs 18 hrs 14 hrs 20 hrs 20 hrs 20 hrs 8 hrs 88 hrs 52 hrs 18 hrs 14 hrs 16 hrs $102,347 $4,911 $107,258 Table 3 – Project Schedule Phase / Task 2020 2021 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun Jul PHASE 1 – REVIEW EXISTING DOCUMENTS Task 1 – Project Management & Deliverables Task 2 – Document Review & Data Collection Task 3 – Prioritize Critical Assets PHASE 2 – CONDUCT RISK & RESILIENCE ASSESSMENT Task 1 – Project Management & Deliverables Task 2 – Threat Characterization & Threat-Asset Pairing Task 3 & 4 – Consequence & Vulnerability Analyses (Workshops) Task 5 – Threat Liklihood Analyses Task 6 – Risk & Resilience Assessment Task 7 – Risk Reduction Assessment & Mitigation Strategy Task 8 – Reporting & Continuous Improvement Planning Task 9 – Update Emergency Response Plan EPA RISK ASSESSMENT DEADLINEEPA EMERGENCY RESPONSE PLAN DEADLINEPage 176 of 202 Page 177 of 202 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Dan Poremba DEPARTMENT: Community Development DATE: June 1, 2020 SUBJECT: Motion to approve Pre-Development Agreement with SKB DESCRIPTION: Motion to approve Pre-Development Agreement with SKB RECOMMENDATION: In accordance with a recommendation from the Board of the Englewood Environmental Foundation (EEF), approved by motion at the May 7, 2020 EEF Board Meeting, Community Development staff recommends that the City Council approve by motion the execution of a Predevelopment Agreement (PDA) between the City/EEF and SKB of Portland, Oregon (also known as Scanlan Kemper Bard). If approved, the City and EEF will each be a party to the PDA which reflects the selection of SKB as the preferred master developer for the City to partner with in redeveloping the “City Property” at Englewood City Center. This is the property owned or controlled by the City and EEF as shown in blue on the attached site plan. PREVIOUS COUNCIL ACTION: On February 18, 2020, City Council approved by motion an Exclusive Negotiation Agreement (ENA) between the City/EEF and SKB. On May 4, 2020, staff provided Council with an informational update on the positive progress being achieved by SKB and the City in accordance with the provisions of the ENA. The PDA is the second of three anticipated agreements between the City/EEF and SKB, each requiring Council review and approval. This item was initially scheduled for Council’s consideration at the May 18, 2020 Regular Council Meeting. However, a drafting error was discovered after the PDA had already been included in the Council packet and the decision was made to defer the submittal of the corrected agreement for Council consideration to June 1,2020 (corrected document is attached). The City initiated exploration of the redevelopment of the City Property in connection with the August 2018 foreclosure of the adjacent three-square block former Weingarten Realty property at CityCenter, shown in red on the attached site plan. This led to a Council-authorized, year- long, multi-step master developer procurement process culminating in the selection of SKB as Englewood’s preferred master developer partner. Council was updated by staff throughout the process. SUMMARY: This PDA recommendation is consistent with the formal competitive procurement process authorized by City Council and managed by staff to identify a preferred master developer for the City to partner with in redeveloping the City Property at Englewood CityCenter. Council’s considerations regarding CityCenter redevelopment included the following key points. Page 178 of 202 • CityCenter currently presents a dated and fading image and the need for redevelopment has been documented in multiple City-sponsored planning studies, and in two recent independent studies of the Urban Land Institute. • Englewood has a timely opportunity to guide the redevelopment of CityCenter to re- establish it as Englewood’s “central place” with a viable and sustainable future. • Redevelopment can significantly improve CityCenter’s mix of uses, activity levels, walkability, financial sustainability, property values and contribution to City revenues. • Englewood is receiving no current income from its CityCenter property interests and redevelopment will enable the City to generate new revenues from these interests. The specific factors that supported Englewood’s selection of SKB for the master developer role on the City Property included: • SKB’s specific experience partnering with municipalities on complex, mixed-use and transit-oriented development (TOD) projects, including redevelopments, • Due to SKB’s continuing interest in also acquiring the former Weingarten property, the selection of SKB preserves the possibility that the City Property and former Weingarten property could be combined under common ownership, a favorable scenario for the City, • SKB’s demonstrated commitment to the high level of public outreach the City requires. ANALYSIS: Staff and SKB have been working through the predevelopment and planning tasks outlined in the ENA. Staff is pleased with SKB’s progress and the evolving relationship between the SKB and the City. SKB has performed its obligations in a timely and partner-like manner, including the following select tasks, all of which will continue under the terms and time frame of the PDA: • SKB has become an important member of the Downtown Matters Steering Committee and, working with the City’s consulting team, is contributing its special districts expertise, • SKB sponsored an initial space planning analysis of the Civic Center building to evaluate possibilities for the most efficient and cost-effective use of the building and to evaluate potential alternative locations to house City government functions, • To formulate parking solutions, SKB retained Fehr & Peers, a national transportation engineering firm with experience working on other TOD projects involving RTD, • SKB and the City have met with RTD to begin to discuss ideas for rearranging and possibly reducing the shared RTD parking currently provided by the City, • SKB and staff have communicated with the current interim owner of the former Weingarten property (LNR Partners) to explore possibilities for SKB acquiring the property or specific portions and to discuss general coordination matters. Page 179 of 202 FINANCIAL IMPLICATIONS: Collaborating with SKB to formulate a mutually acceptable redevelopment plan for the City Property at CityCenter will likely require that certain professional consultants’ fees be funded from the approved 2020 Community Development professional services budget. As previously approved by Council, EEF is funding special counsel legal fees (up to $150,000 in 2020). These pre-development expenditures support the City’s proactive efforts to protect and enhance property values, property taxes and sales taxes within and adjacent to CityCenter. These expenditures should allow Englewood to generate new net revenues from its CityCenter property interests as redevelopment takes place in the coming years. CONCLUSION: Subject to approval by Council, the recommended PDA will guide the process of formulating the redevelopment plan and negotiating the definitive Master Development Agreement (MDA) between the City/EEF and SKB. Subject to EEF Board and City Council approval, the MDA would then govern the parties’ long-term public/private partnership relationship. It is expected that the MDA could be completed by year-end 2020, however, there could be some COVID- related impacts that may extend the final consideration of the MDA to 2021. ATTACHMENTS: CityCenter Site Plan (City Property in blue and the former Weingarten property in red) Predevelopment Agreement (PDA) between the City/EEF and SKB Page 180 of 202 1 CityCenter Site Plan (City Property shown in blue and the former Weingarten property is shown in red (still labelled as the C-III Property) /Former Weingarten Prop. Page 181 of 202 PRELIMINARY DEVELOPMENT AGREEMENT This PRELIMINARY DEVELOPMENT AGREEMENT (this PDA”) is made and entered into this _____day of _________, 2020 (the “Effective Date”), by and between CITY OF ENGLEWOOD, a Colorado home-rule municipality (“Englewood”), ENGLEWOOD ENVIRONMENTAL FOUNDATION , a tax-exempt political subdivision of Englewood (“EEF” and collectively with Englewood, the “City”) and SCANLANKEMPERBARD COMPANIES , LLC, an Oregon limited liability company (“Master Developer”). Englewood, EEF and Mast er Developer are sometimes hereinafter collectively referred to as the “Parties” and individually as a “Party.” Recitals A. City is pursuing a mixed -use, transit -oriented redevelopment project (the “Project”) on approximately 10.6 acres of property located adjacent to the Englewood light rail and multi - modal transit station (the “Project Area”). The Project Area is identified on the map attached as Exhibit A hereto. The property that comprises the Project Area is owned or controlled by the City or EEF. B. On Mar ch 28, 2019, City published a Request for Qualifications (“RFQ”) from interested master developers, and in response to the RFQ, Master Developer submitted its qualifications for the Project. C. On April 24, 2019, City published a Request for Proposals (“RFP”) from the respondents of the RFQ, and in response to the RFP, Master Developer submitted its proposal for the Project dated May 15, 2019. D. Following additional procurement process steps, including multiple interviews and meetings participated in by senior City staff from multiple departments, City staff recommended Master Developer to the City Council as the preferred master developer for the Project. Based on City staff’s recommendation, at its meeting on January 27, 2020, the City Council directed staff to prepare an exclusive negotiating agreement with Master Developer. E. On January 27, 2020, the Englewood City Council approved City execution of an Exclusive Negotiating Agreement (“ENA”). The purpose of the ENA was to enable the Parties to negotiate exclu sively and proceed with the studies, due diligence and next steps necessary to establish the terms and conditions of this PDA and a subsequent Master Development Agreement (“MDA”) that will facilitate development of the Project. F. Since executing the ENA, the Parties have been working collaboratively on the tasks identified in the ENA, and now are prepared to enter into this PDA to set forth their understanding about the obligations and tasks of each Party that will be necessary in order for the Parties to enter into the MDA. The Parties acknowledge that the City and the Master Developer have fulfilled their relative obligations under the ENA. Without limitation, Master Developer commenced community outreach activities by contacting surrounding property ow ners and provided to the City market information relevant to the proposed uses in the Project Area together with a draft vision plan for the Project Area. Page 182 of 202 2 G. The Parties continue to acknowledge that robust public outreach and communication conducted in collaboration with appropriate City staff will be necessary to understand the needs and desires of the Englewood community and key stakeholders with regard to the Project. The Parties acknowledge that due to COVID -19 circumstances, some public outreach and input may need to occur via online communication methods. H. The Parties acknowledge that the Project will be a multi -phase project to be constructed over a significant period of time. The Project is expected to include public infrastructure improvements which enable discreet, vertical development opportunities consisting of a mix of land uses. The public infrastructure improvements are expected to support and compliment multiple adjacent properties including, but not limited to, property owned or controlled by the City or EEF and other property owners. I. The Parties desire to enter into this PDA on the terms set forth below to address the Parties’ obligations related to major development, entitlement, property acquisition and financial matters, and to set the next milestones necessary to advance the Project, including an appropriate public outreach component, all as further described herein. This PDA provides the basis for the negotiation of the MDA and other agreements necessary to develop the Project. Agreement NOW, THEREFORE, FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby acknowledged, the Parties mutually agree as follows: I. Mutual Agreement to Negotiate Exclusively; Good Faith Negotiations A. During the PDA Negotiation Period (as defined in Section II below), Master Developer and City shall continue to negotiate exclusively and in good faith with each other concerning the proposed development of the Project and the terms and conditions of the contemplated MDA. B. Each Party shall continue to use commercially reasonable efforts to attend scheduled meetings, direct its respective consultants to cooperate with the other Parties, to provide information to the other Parties that may be necessary to further comple tion of the MDA, and to promptly review and return with comments all correspondence, reports, documents, or agreements received from the other Parties that require such comments. The Parties shall establish weekly meetings to update each other and discuss progress on the tasks described in Section III below. The Parties acknowledge that due to COVID -19 circumstances, such meetings may need to occur online as opposed to in person. C. City and Master Developer shall continue to use commercially reasonable efforts to ensure those staff, principals and consultants that each respective Party identifies as authorized to speak responsibly and authoritatively for each Party participate in meetings and communications by and among the Parties. D. The City will not negotiate with any other person or entity or investigate the feasibility of the development of a competing project similar to the Project as described in Master Developer’s RFP submittal for a portion of the Englewood CityCenter Redevelopment, dated May Page 183 of 202 3 15, 2019, within the City’s boundaries without Master Developer’s approval. Notwithstanding the foregoing, the City may continue to negotiate with LNR regarding the sale and redevelopment of the LNR Property, but the City will, in any event, keep Master Developer apprised of the status of ongoing discussions and will not enter into agreement or arrangement with LNR that will materially interfere with Master Developer’s obligations under this PDA or the proposed MDA. E. The Parties acknowledge their mutual desire to work cooperatively towards a successful redevelopment of Englewood CityCenter which will require Master Developer to be fully engaged and aligned with the City in achieving this outcome. Accordingly, prior to executing a letter of intent or any other written agreement related to the acquisition of real property intended for ground-up redevelopment (“Related Property”) located within the boundaries of the area described in Exhibit B (the “Related Area”), Master Developer will notify the City of its desire to acquire such Related Property and the parties will meet within five (5) days thereafter to confer about how and why redevelopment of the Related Property would further the parties’ mutual redevelopment goals for the Project. If, within three (3) days after such conferral, the City notifies the Master Developer of any good faith, commercially reasonable objection it has to the Master Developer’s acquisition and/or redevelopment of the Related Property, the Parties will meet again within three (3) days thereafter to attempt to resolve the City’s objection. If the Parties are unable to resolve the City’s objection and the Master Developer executes a letter of intent or other agreement related to such purchase and sale agreement for the acquisition and redeve lopment of the Related Property and delivers notice to the City that it intends to proceed over the City’s objection, the City may terminate this PDA by delivering to Master Developer written notice of such termination within five business days following i ts receipt of notice from the Master Developer. If the Parties satisfactorily resolve the objection or the City does not timely object, then the Master Developer may independently pursue acquisition and redevelopment of the Related Property in the manner set forth in the notice. The Master Developer is not required to notify the City of its intent to acquire any real property either (i) located outside of the Related Area or (ii) not intended for ground-up redevelopment. II. PDA Term A. The “PDA Term” will commence on the Effective Date and terminate one- hundred eighty (180) days after the Effective Date, provided, however, the PDA Term shall automatically extend for successive thirty (30) day periods if on the final day of the PDA Term or any successive thirty (30) day term , any of the following has occurred (“each, an “Extension Event”): (i) the Parties have not executed the MDA, but are nevertheless continuing to negotiate in good faith; (2) the DDA Election (as defined below) has not yet occurred; or (iii) the Rezoning Initiation (as defined below) has not occurred . In the event that an Extension Event still exists at the end of two successive 30 -day periods, either Party shall have the option to terminate this PDA by notice to the other Party at any time thereafter, in which event the City shall return to Master Developer all of the Deposit described below in Section III(B)(1). In addition, if on the final day of the PDA Term as the same may be extended, the Master Developer has executed the MDA and submitted it to the City for approval, this PDA shall not terminate until the City Council either approves, executes and delivers the MDA to the Master Developer or rejects the PDA . B. Any Party may terminate this PDA at any time following c onsultation with the other Parties and upon fifteen (15) days’ notice, if such Party determines in its reasonable Page 184 of 202 4 discretion that (i) the other Party is not negotiating the MDA in good faith or fulfilling its obligations under this PDA or (ii) despite both Parties negotiating in good faith, the Parties cannot agree on the terms of the MDA. In addition, the Parties may mutually agree to terminate this PDA if they determine after consultation with each other, that the Project is not financially feasible. Al ternatively, this PDA shall automatically terminate if the City Council rejects the MDA as executed by the Master Developer. If the City terminates this PDA pursuant to Section II(B)(i), the City shall return to Master Developer one half of the Deposit de scribed below in Section II(B)(1). Otherwise, the City shall return to Master Developer all of the Deposit described below in Section III(B)(1). C. Unless the Parties otherwise agree in writing, any amounts expended by either Party during the PDA Term, other than the Deposit, shall be that Party’s expense and shall not be reimbursed by any other Party to this PDA. III. Performance During PDA Term. During the PDA Term, the Parties shall use good faith, commercially reasonable efforts to achieve the benchmarks set forth below with the goal of reaching agreement on the terms of the MDA. Unless otherwise provided, City shall perform City’s Obligations at its sole cost and expense and Master Developer shall perform Master Developer’s Obligations at its sole cost and expense. A. City Obligations 1. City will continue to provide Master Developer with all relevant information regarding the Project and the Project Area in the City’s possession or control that will be useful to Master Developer in performing Master Developer’s obligations under this Sect ion III. City has provided Master Developer and Master Developer’s consultants access to review the City’s project files related to the Project Area and to catalog and copy those materials as appropriate (the “City Materials”). 2. The Parties have agreed on a form of access agreement (the “Access Agreement”) that allows Master Developer physical access to the Project Area, to enable Master Developer to perform investigations to inform its obligations under this Section III. A form of the Access Agreement is attached hereto as Exhibit C. By execution of this PDA, the Parties agree to the terms of the Access Agreement. 3. City will continue to cooperate fully in providing the Master Developer with appropriate information and assistance to enable Master Developer to prepare the information and plans listed in Section III(B) below. 4. City has provided and will continue to provide all GIS files relevant to the Project Area in its possession. 5. City will continue to include a representative of Master Developer on the Englewood Downtown Matters Initiative Steering Committee. 6. City will undertake all reasonable efforts to cause the authorizing election for creation of the Downtown Development Authority (“DDA”) encompassing the Project Page 185 of 202 5 Area (or por tion thereof as acceptable to Master Developer (the “DDA Election”) to occur on November 3, 2020. 7. City will undertake all reasonable efforts to initiate a legislative rezoning (the “Rezoning”) of the Project Area (and perhaps the entire area currently zon ed PUD as determined in cooperation with the Master Developer) to either a new zone district or an existing zone district in a form commercially reasonably acceptable to Master Developer that accommodates development of the Project. Further, the City will seek to process the Rezoning to a point in the City process where it has been considered by and received a recommendation of approval from the Englewood Planning and Zoning Commission. The activities in this Section III(A)(7) shall be referred to as the “Rezoning Initiation”. The Parties acknowledge that the Englewood Planning and Zoning Commission acts as an independent body and that the City cannot dictate or presuppose the Planning and Zoning Commission’s recommendation regarding the Rezoning. 8. City will provide Master Developer with an estimate of its occupancy costs for the City’s use of space for municipal purposes within the Project Area. B. Master Developer Obligations 1. Pursuant to the ENA, Master Developer has delivered to Englewood a cash deposit in the amount of Fifty Thousand and no/100 Dollars ($50,000.00). Upon execution of this PDA, Master Developer shall deliver an additional Fifty Thousand and no/100 Dollars ($50,000.00) (the ENA deposit, together with the additional $50,000.00 deposit, incl uding any interest earned on the total deposits, shall hereinafter be referred to as the “Deposit.”) The Deposit shall be deposited in an interest bearing account acceptable to City and Master Developer and returned to the Master Developer or partially released to the City as set forth above in Section II.B. 2. Master Developer has begun to conduct an internal evaluation of the City Materials and will finalize its internal evaluation. 3. The Parties acknowledge that Master Developer has completed and provided to the City a market analysis evaluating multi -family residential, office and retail uses in the Project Area. 4. Master Developer will continue to work on a third -party feasibility study for a hotel in the Project Area, to be completed during the term of the PDA, being mindful such feasibility study cannot be accurately completed in the current COVID -19 conditions. 5. Master Developer will perform all investigations with respect to the Project Area zoning and property ownership and such other studies as Master Developer deems necessary to determine whether to move forward with a MDA . 6. Master Developer shall complete the following additional plans and information to inform the MDA: (a) A holistic evaluation of transportation management and parking availability and needs associated with the Project Area, including the need for additional Page 186 of 202 6 and altered transportation infrastructur e and the availability of parking within the existing Englewood Station parking structure, which evaluation to result in an overall transportation and parking plan for the Project to be completed by Master Developer’s consultant, Fehr and Peers; (b) An assessment of ideas for reconfiguring the existing Civic Center parking garage to facilitate early phase development on this parcel; (c) A project schedule which identifies at a minimum the anticipated timing for property acquisition, leasing/sales commitments, fina ncing, public and private improvement construction, and initial vertical improvements being commissioned or placed in service, which schedule shall be more developed and refined through the MDA process; (d) An evaluation of potential occupants and uses for the Project and potential vertical developers for the various vertical components of the Project, especially the hotel; (e) A traffic plan indicating the flow and circulation of traffic related to the Project and identifying necessary traffic improvements ; (f) An understanding of the current utilities serving the Project Area, including potential modifications and/or improvements necessary to serve the Project; (g) Preliminary cost estimates, development schedule and possible economic impacts of Master Developer’s program; and (h) Steps for potentially unwinding EEF and converting EEF’s responsibilities to the Master Developer. 7. Master Developer will work with the City to develop a preliminary financing plan for the Project, which financing plan shall include, but not be limite d to, the Parties’ preliminary understanding of the public and private financing component of the Project. Master Developer will provide information as required for preparation of such plan, including, but not limited to, such information regarding costs, development schedule and potential economic impacts of Master Developer’s program as are reasonably identifiable based on the preliminary information contemplated in Section III(6) above. 8. Master Developer shall share all information or reports with the City. C. Joint Obligations 1. The Parties shall work to finalize their agreement on the matters set forth below, all of which will be memorialized in the MDA, which shall address the long term relationship of the Parties regarding the Project. During their weekl y meetings, the Parties will agree on expected dates for completing the tasks listed in this Section III, which schedule may be updated from time to time. The Parties will agree on cost sharing for PDA activities – each Party shall be responsible for funding its obligations. Page 187 of 202 7 2. Financial Obligations (a) The Parties will develop an agreeable valuation approach for Master Developer’s acquisition or ground lease of the real property and potential acquisition of additional development rights. Based on such approach, the Parties will agree on a basic transaction structure for Master Developer’s acquisition or ground lease and development rights. Such minimum price will be reasonably supported by available market data as agreed upon by the Parties and will encompass both immediate property acquisition or lease, as well as future property acquisitions. Potential valuation approaches may include, but are not limited to: (i) Valuation of Property ‘as-is’ – where the price at which Master Developer would acquire real property or development rights is calculated based on current value, providing Master Developer the opportunity to resell at fully entitled and improvement values; (ii) Valuation of fully entitled and improved Property – where Master Developer wou ld acquire based on expected future values, as adjusted by deductions for 3rd party entitlement costs, and costs of improvements to be constructed. (iii) Valuation of fully entitled and improved Property, with a fixed Master Developer fee. (b) The basic transacti on structure for Master Developer’s acquisition of development rights may anticipate fee simple land sale, land lease structure, and air rights acquisitions. The Parties acknowledge that the City’s historically preferred transaction is a ground lease and Master Developer has indicated that they could make this work if necessary, however, it would likely result in a slower redevelopment schedule and lower financial proceeds for the City. It is generally anticipated that City staff will work closely with the Englewood City Council to make sure they fully understand the relative costs/benefits of a ground lease vs. land sale approach. (c) The Parties understand and agree that a key City goal is to receive some amount of up-front payment, to be credited against one or more subsequent transactions on individual parcels. (d) The Parties acknowledge that Master Developer may serve as the parcel buyer/vertical developer of individual projects, sell parcels to vertical developers of individual projects or joint venture the development of individual projects. The applicable valuation approach for each individual parcel transaction will take Master Developer’s role in the subsequent vertical development into account in accordance with the guidelines to be formulated by the Parties and incorporated in the MDA. The MDA will generally define the timing of transaction closings. (e) The Parties understand and agree that there is a long -term public-private partnership role expected of the Master Developer, including but not limited to a sset management, marketing, and programming, to achieve the critical redevelopment placemaking goals of both Parties, which role will be further defined in the MDA. Page 188 of 202 8 (f) The Parties will agree on City’s expected financial and public improvement commitments and refine the evaluation of public/private financial opportunities, including, as appropriate, the formation of potential Title 32 Special District(s) and the DDA; (g) The Parties agree that the Project encompasses multiple development parcels, and includes public improvements that will benefit multiple adjacent property owners within the Project Area, including unrelated property owners. (h) The Parties will work collaboratively on evaluating and pursuing a buyout or modification of the Selbe property lease such that the Selbe property is unencumbered by the lease and otherwise available for redevelopment. 3. Development (a) Master Developer shall provide a plan for the phasing and timing of development of the Project components. Such plan shal l address: (i) Project components phasing and timing; (ii) Master Developer’s plan to attract appropriate vertical developers for Project components the Master Developer does not anticipate self -developing; (iii) property ground lease or acquisition, lease up, and potential dispositi on of the property included in the Project; (iv) identifications of operational requirements related to the Project, which will include restrictions applicable during design and construction; (iv) project governance, including Project delivery team and Project operational management and / or governance . (b) The Parties will continue to discuss a variety of changes to the streets and/or streetscapes (Floyd Avenue, Englewood Parkway, Inca Street) that currently provide access to the Project Area (but that are partially outside of the Project Area) that could eventually evolve into accepted elements of a mutually acceptable redevelopment plan. (c) The Parties will discuss potential covenants on the development and use of the Property as a mechanism for City control over future development. This may also include City approval of SKB arranged sales, resales or vertical joint ventures. (d) The Parties will discuss development of design guidelines, to be implemented either in connection with the Rezoning or as private design guidelines, or both, to insure high quality design of both the public realm and private elements of the Project. 4. Stakeholder Engagement (a) The Parties have begun to develop a strategy to engage the Regional Transportation Authority on the Project. (b) The Parties will develop a strategy to engage with Walmart as necessary on the Project to obtain necessary approvals. (c) The Parties have begun to develop a strategy to engage with LNR or the yet to be determined purchaser of the LNR Property. Page 189 of 202 9 (d) The Parties will develop a strategy to engage City elected officials and other City staff with periodic briefings regarding the Project. (e) The Parties will develop and execute on a robust community engagement process to understand the needs and desires of the Englewood communit y and key stakeholders with regard to the Project. Master Developer has already engaged surrounding property owners on the Project. 5. The Parties will frankly and honestly communicate concerning all meetings and discussions held concerning the Project. 6. The Parties will establish a regular meeting schedule and use their best efforts to meet on a regular basis and coordinate all activities. 7. Any public announcements concerning the Project will be handled by the City unless otherwise agreed. No public announcem ent concerning the Master Developer, Project concept or potential tenants will be made without the mutual written consent of the Parties. All negotiations between the Parties under this PDA shall be confidential to the extent permitted by law. Upon any termination of this PDA, no Party shall make any announcement or public comment of any kind that in any way is critical of or disparages any other Party. The terms of this Section III(C)(7) shall survive a termination of this PDA. IV. Further Duties and Obligations. Except as expressly provided herein, no Party shall have any obligations nor duties to another Party in the event the Parties fail for any reason to timely execute and deliver the MDA. Nothing herein shall be construed as a binding commitment by any Party to proceed with the Project. V. Amendment; Attorneys’ Fees; Time. This PDA may not be amended except in writing signed by all of the Parties. If any Party brings an action or files a proceeding in connection with the enforcement of its respective r ights or as a consequence of any breach by any other Party of its obligations hereunder, then the prevailing Party (as determined by the officiant of such action), in such action or proceeding shall be entitled to have its reasonable attorneys’ fees and co sts and other out -of-pocket expenditures paid by the losing Party. Time is of the essence in thi s PDA. VI. General . If any provision of this PDA is held invalid or unenforceable in accordance with its express terms in any legal proceeding, such invalidity or unenforceability shall not affect the validity and enforceability of any other part of this PDA. Nothing contained in this PDA shall be deemed to constitute a joint venture or partnership relationship or any other arrangement, business, financial or otherwise, between City and Master Developer. This PDA shall be governed by and construed in accordance with the laws of the State of Colorado. VII. Remedies; Termination. Termination of this PDA shall be the sole and exclusive remedy in the event of default. In the event of a default under this PDA, any non -defaulting Party shall provide written notice (a “Default Notice”) to the defaulting Party, and the defaulting Party will have fourteen (14) days from receipt of the Default Notice to cure the default. During such time period, the Parties will work diligently with one another to help mutually cure the default, including meeting at least two (2) times to discuss and seek to resolve the issues associated with Page 190 of 202 10 the Default Notice. If after such meetings and the end of such 14 -day cure period, the Parties are unable to reach agreement regarding the subject default, any Party may terminate this PDA by written notice to the other Parties. In the event this PDA is terminated in accordance with this Section VII, the Deposit shall be returned to the Master Developer or partially released to the City as set forth in Section II.B. If the Parties are unable to agree on the release of the Deposit, either party may request expedited arbitration on only this issue by delivering written notice to the other Party of its intent to pursue such arbitration within five (5) business days following the expiration of the 14-day cure period. In the event either Party requests expedited arbitration, the Parties shall agree on a single arbitrator within three (3) business days. If the Parties cannot so agree, each Party will select an arbitrator and those two arbitrators shall select the arbitrator. The arbitration shall be set within 5 business days following selection of arbitrator and shall follow the JAMS arbitration rules. VIII. Ownership of Work. Master Developer retains the ownership rights to all work materials created by Master Developer in the performance of its obligations under this PDA. If this PDA is terminated with no MDA being mutually executed and delivered to all Parties, provided (a) Master Developer has not terminated this PDA for the City’s failure to negotiate in good faith or (b) City has not failed to approve the MDA, execute and deliver it to the Master Developer, then Master Developer shall assign to City the Master Developer’s right title and interest in the information or plans contained in the work materials without warranty or representations of any kind. Otherwise, the City shall have no right to such information or plans contained in the work materials. IX. Notices. All notices required or permitted hereunder shall be in writing and shall be delivered in person or by email, by overnight courier, or by registered or certified mail, postage prepaid, return receipt requested, to such Party at its address shown below, or to any other place designated in writing by such Party: Englewood / EEF: City of Englewood Daniel Poremba Chief Redevelopment Officer Englewood Civic Center 1000 Englewood Parkway Englewood, Colorado 80110 (720) 480-2139 dporemba@englewoodco.gov With a copy to: Brad Power Director of Community Development Englewood Civic Center 1000 Englewood Parkway Englewood, Colorado 80110 (303) 762-2342 bpower@englewoodco.gov Page 191 of 202 11 And a copy to: Sarah Rockwell, Esq. Kaplan Kirsch & Rockwell LLP 1675 Broadway, Suite 2300 Denver, CO 80202 (303) 825-7000 srockwell@kaplankirsch.com Master Developer: Todd Gooding, President John Olivier, Senior Vice President c/o ScanlanKemperBard 222 SW Columbia Street, Suite 700 Portland, OR 97201 (503)552-3594 tgooding@skbcos.com jolivier@skbcos.com With a copy to: Jim Johnson, Esq. Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 Seventeenth Street, Suite 1600 Denver, CO 80202 (303) 825-8400 jjohnson@ottenjohnson.com Any such notice shall be deemed received upon delivery, if delivered personally, upon delivery with email confirmation by receipt, if by email, one (1) day after delivery to the courier, if delivered by courier, and three (3) days after deposit into the United States mail, if delivered by registered or certified mail. X. Assignment. This PDA and all rights and obligations of the Parties hereunder are personal to the Parties and may not be transferred or assigned without the prior written consent of the other Parties. Notwithstanding the foregoing, City hereby consents to Master Developer assigning its right s and obligations hereunder to a wholly owned subsidiary of Master Developer or to a new entity under the same ownership and control of Master Developer . Page 192 of 202 Page 193 of 202 A-1 EXHIBIT A PROJECT AREA The “Project Area” is depicted in blue. The LNR Property is depicted in red. The yellow boundary depicts the original Englewood CityCenter transit -oriented development project. Page 194 of 202 B-1 EXHIBIT B RELATED AREA Page 195 of 202 C-1 EXHIBIT C FORM OF ACCESS AGREEMENT ACCESS AGREEMENT This ACCESS AGREEMENT (this “Agreement”) is made and entered into this [__] day of ________, 2020 (the “Effective Date”), by and between CITY OF ENGLEWOOD, a Colorado home-rule municipality (“Englewood”), ENGLEWOOD ENVIRONMENTAL FOUNDATION, a tax-exempt political subdivision of Englewood (“EEF” and collectively with Englewood, the “Licensor”) and SCANLANKEMPERBARD COMPANIES, LLC , an Oregon limited liability company (“Licensee”). Englewood, EEF and Master Developer are sometimes hereinafter collectively referred to as the “Parties” and individually as a “Party.” Recitals This Agreement is made with respect to the following facts: A. Licensor and Licensee have entered into an Exclusive Negotiating Agreement (“ENA”) dated as of _____________ related to potential redevelopment of a mixed -use, transit oriented redevelopment project on approximately 10.6 acres of property (the “Property”) located adjacent to the Englewood light rail and multi -modal transit station. The Property is depicted on Exhibit A attached hereto and made a part hereof. B. Licensee has requested permission to enter the Property to conduct surveys, non- invasive geotechnical investigations, architectural and engineering studies, and other non-invasive investigations (the “Investigations”) relating to determining the feasibility of Licensee’s potential acquisition and redevelopment of the Property. C. Licensor has agreed to allow Licensee to enter the Property to conduct the Investigations on the terms and conditions set forth below. Agreement NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Grant of License. Subject to the terms and conditions set forth in this Agreement, Licensor hereby grants a license (“License”) to Licensee and Licensee’s employees, contractors, subcontractors, and agents (collectively, “Licensee’s Agents”) to enter the Property during the Term (as defined in Section 2 below) for purposes of conducting the Investigations. 2. Term. The term of the License (the “Term”) shall commence on the Effective Date and shall expire on _____________; provided, however, that if Licensee is in default of any of Licensee’s obligations under this Agreement, then Licensor shall have the right to terminate the License effective immediately upon notice to Licensee. Page 196 of 202 C-2 3. Licensee’s Obligations. Licensee (a) shall control, administer, operate, manage and maintain the conduct of all the Investigations on the Property in a professional, businesslike manner, and in accordance with all applicable legal requirements and any rules imposed by Licensor; (b) shall not make any alterations to or construct any improvements on the Property and shall not conduct any invasive testing of the Property without Licensor’s prior written consent; (c) shall be responsible for obtaining, at Licensee’s expense, any and all permits and appro vals required in connection with the Investigations; (d) shall give Licensor notice of any entry onto the Property at least two (2) business days in advance of the entry so that Licensor may have a representative present during such entry, and provide Lice nsor with copies of all studies, reports and written materials resulting from any such entry onto the Property; (e) shall promptly pay all costs relating to the Investigations; (f) shall, at Licensee’s expense, promptly repair any damage to the Property that is caused by Licensee or Licensee’s Agents, and clean up any spills or contamination of the Property resulting from the activities of Licensee or any of Licensee’s Agents; (g) shall keep the Property free from all debris and in a clean and orderly condi tion, (h) shall not stockpile, or allow to be stockpiled, any soils or other materials of any kind on the Property; and (i) shall not allow any servicing of any vehicles or equipment, or storage of any fuel, oil, lubricant, equipment or other items to occu r on the Property. Prior to the expiration of the Term, Licensee shall, at Licensee's expense, (1) remove all materials and any and all equipment and other items of Licensee’s personal property from the Property; (2) clean up all debris and any spills or contamination of the Property resulting from the activities of Licensee or any of Licensee’s Agents, and(3) restore the Property to its condition prior to conducting the Investigations. 4. Exculpation of Licensor ; Indemnity. Licensee agrees that Licensor shall not be responsible in any way for any loss of or damage to any person, vehicle, its contents or accessories, or any other property of any kind left on the Property, including all tools, equipment and the like, resulting from theft, vandalism, accident, conduct of other persons, fire, or any other casualty or cause whatsoever. Licensee understands that Licensor will not provide any traffic control or security protection for the Property. Licensee further understands and agrees that Licensee and Licensee’s Agents use the Property at their own risk, and Licensee assumes all risks in connection with such use of the Property. Licensee, as a material part of the consideration to Licensor for the License, hereby waives all claims against Licensor with respec t to all matters arising out of or relating to the Property and/or the use thereof by Licensee and Licensee's Agents, and Licensee shall indemnify, defend and hold Licensor harmless from and against any and all claims, liabilities, losses, damages, actions, fines, penalties, costs and expenses of any kind or nature (including without limitation, reasonable attorneys’ fees and disbursements), in any way arising out of or related to (a) the use of the Property by Licensee and Licensee's Agents, (b) any act or omission of Licensee or any of Licensee's Agents, and/or (c) any breach or default in the performance of any obligation of Licensee under this Agreement. 5. Insurance. Licensee shall, at Licensee’s sole cost and expense, at all times during the Term maintain a policy of general liability insurance with minimum limits of $1,000,000 each occurrence and $2 million general and products/completed operations aggregate, aut o liability in the amount of $1,000,000 combined single limit per occurrence/accident covering all owned, leased, hired and non-owned automobiles, umbrella/excess liability in the amount of $2,000,000 each occurrence excess of and following form with the general liability and auto insurance, and employer's liability insurance in the minimum amount of $1,000,000, all with an insurance Page 197 of 202 C-3 company having minimum credit rating of at least A-VII from A.M. Best Rating Services and on a form reasonably acceptable to Licensor, and naming the Licensor as additional insured. The amount of the deductible or self-insured retention under such policy shall not exceed $10,000. Such insurance shall be primary, and not contributing with any insurance that Licensor may maintain, and shall include contractual liability coverage insuring Licensee's indemnification obligations under this Agreement and a waiver of subrogation against the Licensor. Prior to entering onto the Property, and thereafter at least thirty days prior to the expiration of any policy, Licensee shall provide Licensor with a certificate of insurance evidencing that Licensor is named as an additional insured and providing that such policy cannot be canceled or amended without 30 days prior written notice to Licensor. In addition, Licensee shall maintain workers compensati on insurance in the amount required under applicable law, and provide evidence thereof to Licensor prior to entering onto the Property . Licensee shall also ensure that all of Licensee's Agents carry insurance meeting the requirements of this Section 5 nam ing the Licensor as an additional insured under such policies, and provide evidence thereof to Licensor prior to entering onto the Property. 6. No Liens. Licensee shall keep the Property free from all liens of mechanics or materialmen or others arising out of or relating to the Investigations. If any such lien shall be filed, Licensee shall cause the lien to be discharged of record within thirty (30) days after it is filed by payment, posting of a statutory bond with the appropriate court, or otherwise. If a final judgment establishing the validity or existence of a lien for any amount is entered, Licensee shall pay and satisfy the same at once. Licensee shall indemnify, hold harmless and defend Licensor against such liens, and shall pay and satisfy any adv erse judgment that may be rendered before the enforcement thereof against Licensor or the Property. If Licensee fails to pay any charge for which any such lien has been filed and the lien is not discharged of record as described above, Licensor, at its option, may pay such charge and related costs and interest, or may obtain and post a statutory bond to remove the lien from the Property, and the amount paid by Licensor, together with reasonable attorneys’ fees incurred in connection therewith, shall be imm ediately due from Licensee to Licensor. Any such amounts not paid when due shall accrue interest at the rate of 15% per annum from the date due until paid in full. 7. No Hazardous Materials. Licensee shall not suffer or allow any Hazardous Materials to be placed or stored anywhere within the Property or to be Released from or onto the Property. For purposes of the foregoing, (a) “Hazardous Material” means any substance which is (i) designated, defined, classified or regulated as a hazardous substance, hazar dous material, hazardous waste, pollutant or contaminant under any Environmental Law, as currently in effect or as hereafter amended or enacted, (ii) a petroleum hydrocarbon, including crude oil or any fraction thereof and all petroleum products, (iii) PCBs, (iv) lead, (v) asbestos, (vi) flammable explosives, (vii) infectious materials or (viii) radioactive materials, (b) “Environmental Law” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601, et seq ., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901 et seq., the Toxic Substances Control Act, 15 U.S.C. Sections 2601, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801 et seq., the Clean Water Act, 33 U.S.C. Sections 1251 et seq., the Clean Air Act, 42 U.S.C. Section 7401 et seq., the Safe Drinking Water Act, 42 U.S.C. Sections 300f et seq., as said laws have been, or may hereafter be, supplemented or amended, the regulations promulgated pursuant to said laws and any other federal, state or local law, statute, rule, regulation or ordinance relating to protection of health, safety or the environment, Page 198 of 202 C-4 and (c) “Release” means any spilling. leaking, pumping, pouring, remitting, discharging, injecting, escaping, leaching, dumping or disposing into the environment of any Hazardous Material. 8. Condition of Property. Licensee accepts the Property in its current condition, AS IS, with all faults, latent or patent. Licensee acknowledges and agrees that Licensee has examined or has been afforded a reasonable opportunity to examine all matters concerning the Property that Licensee deems material to this License and Licensee’s use of the Property, and that Licensee is relying solely upon its own judgment and expertise as to such matters, the condition of the Property and its suitability for use. Licensor has not made and does not hereby make any representations or warranties to Licensee that the Property is suitable or adequate in any respect for the activities or uses that Licensee intends to conduct or may conduct thereon. All express and implied warranties are hereby disclaimed. Licensee acknowledges that there are no promises, representations, agreements, warranties (whether express or implied), conditions or understandings, whether oral or written, between the parties other than those expressly stated in this Agreement. 9. Notices. All notices required or permitted hereunder shall be in writing and shall be delivered in person or by email, by overnight courier, or by registered or certified mail, postage prepaid, return receipt requested, to such Party at its address shown below, or to any other place designated in writing by such Party: Englewood / EEF: City of Englewood Mr. Daniel Poremba Chief Redevelopment Officer Englewood Civic Center 1000 Englewood Parkway Englewood, Colorado 80110 (720) 480-2139 dporemba@englewoodco.gov With a copy to: Sarah Rockwell, Esq. Kaplan, Kirsch & Rockwell LLP 1675 Broadway, Suite 2300 Denver, CO 80202 (303) 825-7000 srockwell@kaplankirsch.com Master Developer: Todd Gooding, President John Olivier, Senior Vice President c/o ScanlanKemperBard 222 SW Columbia Street, Suite 700 Portland, OR 97201 (503)552-3594 tgooding@skbcos.com jolivier@skbcos.com Page 199 of 202 C-5 With a copy to: Jim Johnson, Esq. Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 Seventeenth Street, Suite 1600 Denver, CO 80202 (303) 825-8400 jjohnson@ottenjohnson.com Any such notice shall be deemed received upon delivery, if delivered personally, one (1) day after delivery to the courier, if delivered by courier, and three (3) days after deposit into the United States mail, if delivered by registered or certified mail. 10. Enforcement . Licensor shall be entitled to all remedies at law or in equity for the enforcement of this Agreement. In any action brought to enforce or contest any provision of th is Agreement, Licensor shall be awarded all costs and expenses (including, without limitation, reasonable attorneys’ fees and disbursements) incurred by Licensor in connection with such action. 11. Governing Law. This Agreement shall be governed by, and const rued and enforced in accordance with, the laws of the State of Colorado. 12. Survival. All obligations of Licensee under this Agreement shall survive the expiration or termination of the License. 13. Headings. The section headings used in this Agreement are for convenience only and shall not be considered in construing the meaning of any provision of this Agreement. 14. No Implied Waivers. The failure or delay of Licensor to exercise any of its rights under this Agreement shall not constitute a waiver of any such rights. Licensor shall not be deemed to have waived any right under this Agreement unless such waiver is made expressly and in writing, and no waiver made as to any instance or any particular right shall be deemed a waiver as to any other instance or any other right. 15. No Recording. This Agreement shall not be recorded in the real property records of the County in which the Property is located, and this Agreement and the License shall automatically terminate upon any such recordation. Licensor and Licensee each expressly directs and authorizes any title examiner to ignore any recorded version of this Agreement. 16. No Assignment. This Agreement and the License may not be assigned by Licensee, without the prior written consent of Licensor, which Licensor may wi thhold or make conditional in its sole and absolute discretion. 17. Counterparts; Facsimile Signatures. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, all of which together shall constitut e one and the same instrument. Signatures transmitted by facsimile transmission or email shall be effective for all purposes. [Signature page follows.] Page 200 of 202 C-6 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. ENGLEWOOD: CITY OF ENGLEWOOD, COLORADO By: __________________________ Linda Olson, Mayor MASTER DEVELOPER: SCANLANKEMPERBARD COMPANIES, LLC, an Oregon limited liability company By: ______________________________ Title: ____________________________ ATTEST: By: __________________________ Stephanie Carlile, City Clerk Page 201 of 202 C-7 EXHIBIT A Depiction of the Property (The Property is the area shown in blue) Page 202 of 202