HomeMy WebLinkAbout09385ORDINANCE NO. 9385
AN ORDINANCE APPROVING AND ACCEPTING GRANT
AGREEMENT 18-PUB-01 BETWEEN THE STATE OF
COLORADO, ACTING BY AND THROUGH THE
COLORADO DEPARTMENT OF TRANSPORTATION,
COLORADO AERONAUTICAL BOARD, DIVISION OF
AERONAUTICS, AND THE CITY OF PUEBLO, A
MUNICIPAL CORPORATION, AND BUDGETING AND
APPROPRIATING FUNDS IN THE AMOUNT OF $85,803 TO
BE RECEIVED FROM THE STATE, INCREASING THE
TOTAL AMOUNT IN THE REHAB PORTION OF AIRCRAFT
APRON PROJECT NO. AP1801 TO $3,432,135, AND
AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL
TO EXECUTE SAME
WHEREAS, the General Assembly of the State of Colorado declared in Title 43 of
the Colorado Revised Statutes, Article 10, 1991 in C.R.S. §43-10-101 (the Act) “…that
there exists a need to promote the safe operations and accessibility of general aviation in
this state; that improvements to general aviation transportation facilities will promote
diversified economic development across the state; and that accessibility to airport
facilities for residents of this state is crucial in the event of a medical or other type of
emergency…”; and
WHEREAS, the Act created the Colorado Aeronautical Board (“the Board”) to
establish policy and procedures for distribution of monies in the Aviation Fund and created
the Division of Aeronautics (“the Division”) to carry out the directives of the Board,
including technical and planning assistance to airports and the administration of the state
aviation system grant program (See C.R.S. §43-10-103 and C.R.S. §43-10-105 and
C.R.S. §43-10-108.5 of the Act); and
WHEREAS, any entity operating a public-accessible airport in the state may file an
application for and be recipient of a grant to be used solely for aviation purposes. The
Division is authorized to assist such airports as request assistance by means of a
Resolution or Ordinance passed by the applicant’s duly-authorized governing body, which
understands that all funds shall be used exclusively for aviation purposes and that it will
comply with all grant procedures and requirements as defined in the Division’s Program
and Procedures Manual, (“the Manual”); NOW, THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Grant Agreement CDAG #18-PUB-01 by and between the State of Colorado,
acting by and through the Colorado Department of Transportation, Colorado Aeronautical
Board, Division of Aeronautics, (“State”) and the City of Pueblo, a Municipal Corporation,
a true copy of which is attached hereto (the “Grant Agreement”), having been approved
as to form by the City Attorney, is hereby accepted and approved.
SECTION 2.
The City Council of the City of Pueblo, as a duly authorized governing body of the
grant applicant, hereby formally request assistance from the Colorado Aeronautical Board
and the Division of Aeronautics (“Division”) in the form of a state aviation system grant.
The City of Pueblo states that such grant shall be used solely for aviation purposes, as
determined by the State, and as generally described in the Application.
The City of Pueblo understands that each airport operating entity that applies for
and accepts a grant thereby makes a COMMITMENT:
a) to keep the airport facility accessible to, and open to, the public during the
entire useful life of the grant funded improvements/equipment; or
b) to reimburse the Division for any unexpired useful life of the
improvements/equipment, on a pro-rata basis.
By signing the Grant Agreement, the City of Pueblo commits to keep open and
accessible for public use all grant funded facilities, improvements and services for their
useful life, as determined by the Division and as stated in the Grant Agreement.
SECTION 3.
The City of Pueblo hereby designates the Director of Aviation as the Project
Director, as described in the Manual, and authorizes the Project Director to act in all
matters relating to the work project proposed in the Application in its behalf.
SECTION 4.
The City of Pueblo has appropriated all funds that are currently required to be
provided by the Applicant under the terms and conditions of the Grant Agreement. Any
and all financial obligations of the City of Pueblo payable after the current fiscal year are
contingent upon funds for that purpose being appropriated, budgeted, and otherwise
made available.
SECTION 5.
The City of Pueblo hereby accepts all guidelines, procedures, standards and
requirements described in the Manual as applicable to the performance of the grant work
and hereby approves the Grant Agreement submitted by the State, including all terms
and conditions contained therein.
SECTION 6.
Funds in the amount of $85,803.00 from the Grant Agreement are hereby
budgeted and appropriated to the Rehab Portion of Aircraft Apron Project No. AP1801.
SECTION 7.
Funding for the Rehab Portion of Aircraft Apron Project No. AP1801 is hereby
increased to $3,432,135.00.
SECTION 8.
The President of City Council is hereby authorized to execute the Grant Agreement
in the name and on behalf of the City of Pueblo, and the City Clerk is directed to attest
same.
SECTION 9.
The officers and staff of the City are directed and authorized to perform any and
all acts consistent with the intent of this Ordinance and the attached Grant Agreement to
effectuate the transactions described therein.
SECTION 10.
This Ordinance shall become effective immediately upon final passage and
approval.
INTRODUCED November 26, 2018
BY: Ed Brown
MEMBER OF CITY COUNCIL
APPROVED:
PRESIDENT OF CITY COUNCIL
ATTESTED BY:
ACTING DEPUTY CITY CLERK
PASSED AND APPROVED: December 10, 2018
City Clerk’s Office Item # R-1
Background Paper for Proposed
Ordinance
COUNCIL MEETING DATE:
November 26, 2018
TO: President Christopher A. Nicoll and Members of City Council
CC: Sam Azad, City Manager
VIA: Brenda Armijo, Acting City Clerk
FROM: Ian Turner, Director of Aviation
SUBJECT: AN ORDINANCE APPROVING AND ACCEPTING GRANT AGREEMENT
18-PUB-01 BETWEEN THE STATE OF COLORADO, ACTING BY AND
THROUGH THE COLORADO DEPARTMENT OF TRANSPORTATION,
COLORADO AERONAUTICAL BOARD, DIVISION OF AERONAUTICS,
AND THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND
BUDGETING AND APPROPRIATING FUNDS IN THE AMOUNT OF
$85,803 TO BE RECEIVED FROM THE STATE, INCREASING THE
TOTAL AMOUNT IN THE REHAB PORTION OF AIRCRAFT APRON
PROJECT NO. AP1801 TO $3,432,135, AND AUTHORIZING THE
PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME
SUMMARY:
Attached is an Ordinance approving and accepting a Colorado Department of
Transportation, Colorado Aeronautical Board, Division of Aeronautics (“State”) grant
agreement for the rehabilitation of a portion of the aircraft apron at the Pueblo Memorial
Airport (“Airport”) and budgeting the State grant funds into Project No. AP1801.
PREVIOUS COUNCIL ACTION:
City Council approved Resolution No. 13861 on December 26, 2017, authorizing the filing
of an application for federal assistance with the Federal Aviation Administration (“FAA”)
to rehabilitate the Airport’s aircraft apron. City Council also approved Resolution No.
13862 on December 26, 2017, authorizing the filing of an application for a State grant to
assist with the City’s matching funds required for the project. On August 13, 2018, City
Council approved Ordinance No. 9318, accepting the FAA grant and budgeting and
appropriating FAA and City funds to the project. Resolution No. 14029, on August 13,
2018 awarded the construction contract to Kiewit Infrastructure Company.
BACKGROUND
This project will rehabilitate a portion of the aircraft apron and construct turf island areas.
Existing asphalt pavement between Taxiway A and the apron will be removed to provide
safety separation between taxiing aircraft to meet FAA airport design standards. Access
points from Taxiway A to the aircraft parking apron will be rehabilitated and airfield lighting
will be installed. Storm drainage improvements will be made within the island areas as
part of the project.
FINANCIAL IMPLICATIONS:
The total project cost is $3,432,135.00. The Federal grant funds of $3,260,528.00 and
City funds of $85,804.00 were budgeted and appropriated into Project No. AP1801 on
August 13, 2018. The State grant is for $85,803.00 and, if approved, will be budgeted
into Project No. AP1801.
BOARD/COMMISSION RECOMMENDATION:
None.
STAKEHOLDER PROCESS:
Meetings with stakeholders were held on October 24, 2017, August 3, 2018, and, August
7, 2018.
ALTERNATIVES:
If City Council does not approve this Ordinance, the grant will be returned to the State
and the City will be responsible for funding the entire local share of the Federal Grant,
equal to $171,607.
RECOMMENDATION
The Department of Aviation recommends approval of this Ordinance.
Attachments:
State of Colorado Grant Agreement 18-PUB-01
Aviation Department Certification
Received
CDOT—Aeronautics Division
Received DEC 18 2018 CDAG#: 18-PUB-01
ROUTING#: 19-HAV-ZL-00121
PO#:491001815
d
ATE OF COLORADO GRANT AGREEMENT
SIGNATURE AND COVER PAGE
State Agency Agreement Number
Colorado Department of Transportation,Colorado 19-HAV-ZL-00121
Aeronautical Board,Division of Aeronautics
Grantee Agreement Performance Beginning Date
City of Pueblo The Effective Date
Initial Agreement Expiration Date
June 30,2021
Agreement Maximum Amount Fund Expenditure End Date
Funding Source Funding Amount June 30,2022
State: $85,803.00 Agreement Description
Element A. Participate in Federally Funded Apron Rehabilitation
(Construct Islands)and Lighting
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.
GRANTEE STATE OF COLORADO
City of Pueblo John W.Hickenlooper,Governor
Department of Transportation
By:David R.Ulane,Aeronautics Division Director
Christopher A.Nicoll,President of City Council for Michael P.Lewis,Executive Director
By: Print Name&Title of Person Signing for Grantee
Date: December 10,2018 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 JarACP• , BA,JD
YIP I
By:De,. "-nt of Transportation
Liliya Gers an,Accounting Controller
Effective Date: /01/01-/hcr°
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TABLE OF CONTENTS
SIGNATURE AND COVER PAGE 1
1. PARTIES 2
2. TERM AND EFFECTIVE DATE 2
3. AUTHORITY 4
4. PURPOSE 4
5. DEFINITIONS 4
6. STATEMENT OF WORK AND BUDGET 7
7. PAYMENTS TO GRANTEE 7
8. REPORTING -NOTIFICATION 9
9. GRANTEE RECORDS 10
10. CONFIDENTIAL INFORMATION-STATE RECORDS 11
11. CONFLICTS OF INTEREST 12
12. INSURANCE 12
13. BREACH 14
14. REMEDIES 14
15. DISPUTE RESOLUTION 16
16. NOTICES AND REPRESENTATIVES 17
17. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION 17
18. GOVERNMENTAL IMMUNITY 18
19. STATEWIDE CONTRACT MANAGEMENT SYSTEM 18
20. GENERAL PROVISIONS 19
21. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-1) 21
EXHIBIT A, DISCRETIONARY AVIATION GRANT APPLICATION 1
EXHIBIT B, RESOLUTION 1
EXHIBIT C, SAMPLE OPTION LETTER 1
1. PARTIES
This Agreement is entered into by and between Grantee named on the Signature and Cover Page
for this Agreement (the "Grantee"), 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",
or"Division"). Grantee and the State agree to the terms and conditions in this Agreement.
2. TERM AND EFFECTIVE DATE
A. Effective Date
This Agreement shall not be valid or enforceable until the Effective Date,and the Grant Funds
shall be expended by the Fund Expenditure End Date shown on the Signature and Cover Page
for this Agreement. The State shall not be bound by any provision of this Agreement before
the Effective Date, and shall have no obligation to pay Grantee for any Work performed or
expense incurred before the Effective Date,except as described in§7.C.(vi),or after the Fund
Expenditure End Date.
B. Initial Term
The Parties' respective performances under this Agreement shall commence on the
Agreement Performance Beginning Date shown on the Signature and Cover Page for this
Agreement and shall terminate on the Initial Agreement Expiration Date shown on the
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Signature and Cover Page for this Agreement (the "Initial Term") unless sooner terminated
or further extended in accordance with the terms of this Agreement.
C. Extension Terms - State's Option
The State, at its discretion, shall have the option to extend the performance under this
Agreement beyond the Initial Term for a period, or for successive periods, of 1 year or less
at the same rates and under the same terms specified in this Agreement(each such period an
"Extension Term"). In order to exercise this option, the State shall provide written notice to
Grantee in a form substantially equivalent to Exhibit C.
D. End of Term Extension
If this Agreement approaches the end of its Initial Term,or any Extension Term then in place,
the State,at its discretion,upon written notice to Grantee as provided in§16,may unilaterally
extend such Initial Term or Extension Term for a period not to exceed 2 months(an "End of
Term Extension"), regardless of whether additional Extension Terms are available or not.
The provisions of this Agreement in effect when such notice is given shall remain in effect
during the End of Term Extension. The End of Term Extension shall automatically terminate
upon execution of a replacement Agreement or modification extending the total term of this
Agreement.
E. Early Termination in the Public Interest
The State is entering into this Agreement to serve the public interest of the State of Colorado
as determined by its Governor, General Assembly, the Colorado Aeronautical Board, 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 Grantee, which shall be
governed by§14.A.i.
i. Method and Content
The State shall notify Grantee 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,Grantee shall
be subject to the rights and obligations set forth in§14.A.i.a.
iii. Payments
If the State terminates this Agreement in the public interest,the State shall pay
Grantee an amount equal to the percentage of the total reimbursement payable under
this Agreement that corresponds to the percentage of Work satisfactorily completed
and accepted, as determined by the State, less payments previously made.
Additionally, if this Agreement is less than 60% completed, as determined by the
State, the State may reimburse Grantee for a portion of actual out-of-pocket
expenses, not otherwise reimbursed under this Agreement, incurred by Grantee
which are directly attributable to the uncompleted portion of Grantee's obligations,
provided that the sum of any and all reimbursement shall not exceed the maximum
amount payable to Grantee hereunder.
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3. AUTHORITY
Authority to enter into this Agreement exists in the law as follows:
A. State Authority
Authority to enter into this Grant exists in CRS §43-10-108.5 and funds have been budgeted,
appropriated and otherwise made available pursuant to CRS §§39-27-112(2)(b), 43-10-109,
43-10-102 and a sufficient unencumbered balance thereof remains available for payment.
Required approvals, clearance, and coordination have been accomplished from and with
appropriate agencies.
4. PURPOSE
The General Assembly of the State of Colorado declared in Title 43 of the Colorado Revised
Statutes,Article 10, 1991 in CRS §43-10-101 (the Act) "... that there exists a need to promote
the safe operations and accessibility of general aviation in this state; that improvements to
general aviation transportation facilities will promote diversified economic development across
the state; and that accessibility to airport facilities for residents of this state is crucial in the event
of a medical or other type of emergency..."
The Act created the Colorado Aeronautical Board("the Board")to establish policy and
procedures for distribution of monies in the Aviation Fund and created the Division of
Aeronautics ("the Division")to carry out the directives of the Board, including technical and
planning assistance to airports and the administration of the state aviation system grant program.
SEE CRS §43-10-103 and C.R.S. §43-10-105 and CRS §43-10-108.5 of the Act.
Any entity operating a public-accessible airport in the state may file an application for and be
recipient of a grant to be used solely for aviation purposes. The Division is authorized to assist
such airports as request assistance by means of a Resolution passed by the applicant's duly-
authorized governing body,which understands that all funds shall be used exclusively for
aviation purposes and that it will comply with all grant procedures and requirements as defined in
the Division's Program and Procedures Manual, ("the Manual").
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. "Budget"means the budget for the Work described in Exhibit A.
C. "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.
D. "CJI" means criminal justice information collected by criminal justice agencies needed for
the performance of their authorized functions, including, without limitation, all information
defined as criminal justice information by the U.S. Department of Justice, Federal Bureau of
Investigation, Criminal Justice Information Services Security Policy, as amended and all
Criminal Justice Records as defined under §24-72-302, C.R.S.
E. "CORA"means the Colorado Open Records Act, §§24-72-200.1, et. seq., C.R.S.
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F. "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.
G. "End of Term Extension"means the time period defined in§2.D
H. "Exhibits"means the following exhibits attached to this Agreement:
i. Exhibit A, Colorado Discretionary Aviation Grant Program Application.
ii. Exhibit B, Resolution in accordance with General Assembly of the state of Colorado
declared in C.R.S. §43-10-101
iii. Exhibit C, Sample Option Letter
I. "Extension Term"means the time period defined in §2.0
J. "Goods" means any movable material acquired, produced, or delivered by Grantee as set
forth in this Agreement and shall include any movable material acquired, produced, or
delivered by Grantee in connection with the Services.
K. "Grant" means this Grant, its terms and conditions, attached exhibits, documents
incorporated by reference under the terms of this Grant, and any future modifications,
exhibits, attachments or reference incorporated herein pursuant to Colorado State law, Fiscal
Rules, and State Controller Policies.
L. "Grant Funds" means the funds that have been appropriated, designated, encumbered, or
otherwise made available for payment by the State under this Agreement.
M. "Incident"means any accidental or deliberate event that results in or constitutes an imminent
threat of the unauthorized access, loss, disclosure, modification, disruption,or destruction of
any communications or information resources of the State, which are included as part of the
Work, as described in §§24-37.5-401 et. seq. C.R.S. Incidents include, without limitation (i)
successful attempts to gain unauthorized access to a State system or State Information
regardless of where such information is located; (ii)unwanted disruption or denial of service;
(iii) the unauthorized use of a State system for the processing or storage of data; or (iv)
changes to State system hardware, firmware, or software characteristics without the State's
knowledge, instruction, or consent.
N. "Initial Term"means the time period defined in §2.B
O. "Local Funds means money provided by any city, county, or other private entity to fund
performance of the Work.
P. "Manual" means the Programs and Procedures Manual as approved by the Colorado
Aeronautical board that is available on the Colorado Division of Aeronautics' website.
Q. "Matching Funds"means the funds provided by Grantee as a match required to receive the
Grant Funds.
R. "Party"means the State or Grantee, and"Parties"means both the State and Grantee.
S. "PII" means personally identifiable information including, without limitation, any
information maintained by the State about an individual that can be used to distinguish or
trace an individual's identity, such as name, social security number, date and place of birth,
mother's maiden name, or biometric records; and any other information that is linked or
linkable to an individual, such as medical, educational, financial, and employment
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information. PII includes, but is not limited to, all information defined as personally
identifiable information in §24-72-501, C.R.S.
T. "Program"means the Colorado Discretionary Aviation Grant Program.
U. "Services" means the services to be performed by Grantee as set forth in this Agreement,
and shall include any services to be rendered by Grantee in connection with the Goods.
V. "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, PHI,
PCI, Tax Information, CJI, and State personnel records not subject to disclosure under
CORA. State Confidential Information shall not include information or data concerning
individuals that is not deemed confidential but nevertheless belongs to the State, which has
been communicated, furnished,or disclosed by the State to Contractor which(i) is subject to
disclosure pursuant to the CORA; (ii) is already known to Contractor without restrictions at
the time of its disclosure by Contractor; (iii) is or subsequently becomes publicly available
without breach of any obligation owed by Contractor to the State; (iv) is disclosed to
Contractor, without confidentiality obligations,by a third party who has the right to disclose
such information; or (v) was independently developed without reliance on any State
Confidential Information.
W. "State Fiscal Rules" means that fiscal rules promulgated by the Colorado State Controller
pursuant to §24-30-202(13)(a), C.R.S.
X. "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.
Y. "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.
Z. "Subcontractor" means third-parties, if any, engaged by Grantee to aid in performance of
the Work. "Subcontractor"also includes sub-grantees of grant funds.
AA. "Tax Information"means federal and State of Colorado tax information including,without
limitation, federal and State tax returns, return information, and such other tax-related
information as may be protected by federal and State law and regulation. Tax Information
includes, but is not limited to all information defined as federal tax information in Internal
Revenue Service Publication 1075.
BB. "Uniform Guidance"means the Office of Management and Budget Uniform Administrative
Requirements,Cost Principles,and Audit Requirements for Federal Awards,2 CFR Part 200,
commonly known as the "Super Circular, which supersedes requirements from OMB
Circulars A-21, A-87, A-110, A-122, A-89, A-102, and A-133, and the guidance in Circular
A-50 on Single Audit Act follow-up.
CC. "Work"means the Goods delivered and Services performed pursuant to this Agreement.
DD. "Work Product"means the tangible and intangible results of the Work,whether finished or
unfinished, including drafts. Work Product includes, but is not limited to, documents, text,
software (including source code), research, reports, proposals, specifications, plans, notes,
studies, data, images, photographs, negatives, pictures, drawings, designs, models, surveys,
maps, materials, ideas,concepts, know-how, information, and any other results of the Work.
"Work Product"does not include any material that was developed prior to the Effective Date
that is used, without modification, in the performance of the Work.
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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 AND BUDGET
Grantee shall complete the Work as described in this Agreement and in accordance with the
provisions of Exhibit A. The State shall have no liability to compensate Grantee for the delivery
of any goods or the performance of any services that are not specifically set forth in this Agreement.
7. PAYMENTS TO GRANTEE
A. Maximum Amount
Payments to Grantee are limited to the unpaid, obligated balance of the Grant Funds. The
State shall not pay Grantee any amount under this Agreement that exceeds the Agreement
Maximum shown on the Signature and Cover Page of this Agreement.
B. Increase/Decrease Work— State's Option
The State,at its discretion, shall have the option to increase or decrease the quantity of Goods
and Services provided under this Grant and increase the maximum amount payable and
update Exhibit A accordingly. In order to exercise this option,the State shall provide written
notice to Grantee in a form substantially equivalent to Exhibit C. Delivery of Goods and
performance of Services shall continue at the same rates and terms as described in this Grant.
C. Payment Procedures
i. Invoices and Payment
a. The State shall pay Grantee in the amounts and in accordance with the conditions
set forth in this Grant Agreement and its Exhibits.
b. Grantee 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 Grantee 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
Grantee shall make all changes necessary to correct that invoice.
d. The acceptance of an invoice shall not constitute acceptance of any Work
performed or deliverables provided under this Agreement.
ii. Interest
Amounts not paid by the State within 45 days of the State's acceptance of the invoice
shall bear interest on the unpaid balance beginning on the 45th day at the rate of 1%per
month, as required by §24-30-202(24)(a), C.R.S.,until paid in full; provided,however,
that interest shall not accrue on unpaid amounts that the State disputes in writing.
Grantee shall invoice the State separately for accrued interest on delinquent amounts,
and the invoice shall reference the delinquent payment, the number of day's interest to
be paid and the interest rate.
iii. Payment Disputes
If Grantee disputes any calculation, determination or amount of any payment, Grantee
shall notify the State in writing of its dispute within 30 days following the earlier to
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occur of Grantee's receipt of the payment or notification of the determination or
calculation of the payment by the State. The State will review the information presented
by Grantee and may make changes to its determination based on this review. The
calculation, determination or payment amount that results from the State's review shall
not be subject to additional dispute under this subsection. No payment subject to a
dispute under this subsection shall be due until after the State has concluded its review,
and the State shall not pay any interest on any amount during the period it is subject to
dispute under this subsection.
iv. Available Funds-Contingency-Termination
The State is prohibited by law from making commitments beyond the term of the
current State Fiscal Year. Payment to Grantee beyond the current State Fiscal Year is
contingent on the appropriation and continuing availability of Grant Funds in any
subsequent year (as provided in the Colorado Special Provisions). If federal funds or
funds from any other non-State funds constitute all or some of the Grant Funds, the
State's obligation to pay Grantee shall be contingent upon such non-State funding
continuing to be made available for payment. Payments to be made pursuant to this
Agreement shall be made only from Grant Funds, and the State's liability for such
payments shall be limited to the amount remaining of such Grant Funds. If State,federal
or other funds are not appropriated, or otherwise become unavailable to fund this
Agreement, the State may, upon written notice, terminate this Agreement, in whole or
in part, without incurring further liability. The State shall, however, remain obligated
to pay for Services and Goods that are delivered and accepted prior to the effective date
of notice of termination, and this termination shall otherwise be treated as if this
Agreement were terminated in the public interest as described in §2.E.
v. Erroneous Payments
The State may recover, at the State's discretion, payments made to Grantee in error for
any reason, including, but not limited to, overpayments or improper payments, and
unexpended or excess funds received by Grantee.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
Grantee,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 the Federal Awarding Agency
or the State to disallow costs and recover funds on the basis of a later audit or other
review. Any cost disallowance recovery is to be made within the Record Retention
Period, as defined below.
vi. Retroactive Payments
The State may reimburse Grantee for costs or expenses incurred or performance by the
Grantee prior to the Effective Date,only if(1)the Grant Funds involve federal funding,
(2) federal laws, rules and regulations applicable to the Work provide for such
retroactive payments to the Grantee, and (3) the State incurs no obligation to make
retroactive payments until after the Grant Effective Date. Any such retroactive
payments shall comply with State Fiscal Rules and be made in accordance with the
provisions of this Grant or any Exhibit. Grantee shall initiate any payment requests by
submitting invoices to the State in the form and manner set for the and approved by the
State.
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D. Matching Funds.
Grantee shall provide Matching Funds as provided in Exhibit A. Grantee shall have raised
the full amount of Matching Funds prior to the Effective Date and shall report to the State
regarding the status of such funds upon request. Grantee's obligation to pay all or any part of
any matching funds, whether direct or contingent, only extend to funds duly and lawfully
appropriated for the purposes of this Agreement by the authorized representatives of Grantee
and paid into Grantee's treasury or bank account. Grantee represents to the State that the
amount designated "Grantee's Matching Funds" in Exhibit A has been legally appropriated
for the purposes of this Agreement by its authorized representatives and paid into its treasury
or bank account.Grantee does not by this Agreement irrevocably pledge present cash reserves
for payments in future fiscal years, and this Agreement is not intended to create a multiple-
fiscal year debt of Grantee. Grantee shall not pay or be liable for any claimed interest, late
charges, fees, taxes or penalties of any nature, except as required by Grantee's laws or
policies.
E. Reimbursement of Grantee Costs.
The State shall reimburse Grantee's allowable costs, not exceeding the maximum total
amount described in Exhibit A and on the Signature and Cover Page for all allowable costs
described in this Grant and shown in the Budget, except that Grantee may adjust the amounts
between each line item of the Budget without formal modification to this Agreement as long
as the Grantee provides notice to the State of the change,the change does not modify the total
maximum amount of this Agreement, and the change does not modify any requirements of
the Work.
F. Close-Out.
Grantee shall close out this Award within 45 days after the Fund Expenditure End Date shown
on the Signature and Cover Page for this Agreement. To complete close-out, Grantee shall
submit to the State all deliverables (including documentation) as defined in this Agreement
and Grantee's final reimbursement request or invoice.
S. REPORTING - NOTIFICATION
A. Quarterly Reports.
In addition to any reports required pursuant to §19 or pursuant to any other Exhibit, for any
Agreement having a term longer than 3 months, Grantee shall submit, on a quarterly basis, a
written report specifying progress made for each specified performance measure and standard
in this Agreement. Such progress report shall be in accordance with the procedures developed
and prescribed by the State. Progress reports shall be submitted to the State not later than 5
Business Days following the end of each calendar quarter or at such time as otherwise
specified by the State.
B. Litigation Reporting
If Grantee is served with a pleading or other document in connection with an action before a
court or other administrative decision making body, and such pleading or document relates
to this Agreement or may affect Grantee's ability to perform its obligations under this
Agreement, Grantee shall, within 10 days after being served, notify the State of such action
and deliver copies of such pleading or document to the State's principal representative
identified in §16.
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C. Performance and Final Status
Grantee shall submit all financial,performance and other reports to the State no later than 45
calendar days after the end of the Initial Term if no Extension Terms are exercised, or the
final Extension Term exercised by the State,containing an evaluation and review of Grantee's
performance and the final status of Grantee's obligations hereunder.
D. Violations Reporting
Grantee shall disclose, in a timely manner, in writing to the State, all violations of federal or
State criminal law involving fraud, bribery, or gratuity violations potentially affecting this
Grant. The State may impose any penalties for noncompliance which may include, without
limitation suspension or debarment.
9. GRANTEE RECORDS
A. Maintenance
Grantee shall make, keep, maintain, and allow inspection and monitoring by the State of a
complete file of all records, documents, communications, notes and other written materials,
electronic 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. Grantee 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. The State may notify Grantee in writing that the Record Retention Period shall
be extended. For records for real property and equipment, the Record Retention Period shall
extend three years following final disposition of such property.
B. Inspection
Grantee shall permit the State to audit,inspect,examine,excerpt,copy and transcribe Grantee
Records during the Record Retention Period. Grantee shall make Grantee Records available
during normal business hours at Grantee's office or place of business, or at other mutually
agreed upon times or locations, upon no fewer than 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 Grantee's performance of its obligations under this Agreement using
procedures as determined by the State.The federal government and any other duly authorized
agent of a governmental agency, in its discretion, may monitor Contractor's performance of
its obligations under this Contract using procedures as determined by that governmental
entity. The State shall monitor Grantee's performance in a manner that does not unduly
interfere with Grantee's performance of the Work.
D. Final Audit Report
Grantee shall promptly submit upon request to the State a copy of any final audit report of an
audit performed on Grantee's records that relates to or affects this Agreement or the Work,
whether the audit is conducted by Grantee or a third party. Additionally, if Grantee is
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required to perform a single audit under 2 CFR 200.501, et. seq., then Grantee shall submit a
copy of the results of that audit to the State within the same timelines as the submission to
the federal government.
10. CONFIDENTIAL INFORMATION-STATE RECORDS
A. Confidentiality
Grantee shall keep confidential, and cause all Subcontractors to keep confidential, all State
Records, unless those State Records are publicly available. Grantee shall not, without prior
written approval of the State,use,publish, copy,disclose to any third party,or permit the use
by any third party of any State Records, except as otherwise stated in this Agreement,
permitted by law or approved in Writing by the State. Grantee shall provide for the security
of all State Confidential Information in accordance with all policies promulgated by the
Colorado Office of Information Security and all applicable laws,rules,policies,publications,
and guidelines. Grantee shall immediately forward any request or demand for State Records
to the State's principal representative.
B. Other Entity Access and Nondisclosure Agreements
Grantee may provide State Records to its agents, employees, assigns and Subcontractors as
necessary to perform the Work, but shall restrict access to State Confidential Information to
those agents, employees, assigns and Subcontractors who require access to perform their
obligations under this Agreement. Grantee shall ensure all such agents, employees, assigns,
and Subcontractors sign agreements containing nondisclosure provisions at least as protective
as those in this Contract, and that the nondisclosure provisions are in force at all times the
agent, employee, assign or Subcontractor has access to any State Confidential Information.
Grantee shall provide copies of those signed nondisclosure provisions to the State upon
execution of the nondisclosure provisions.
C. Use, Security, and Retention
Grantee shall use, hold and maintain State Confidential Information in compliance with any
and all applicable laws and regulations in facilities located within the United States,and shall
maintain a secure environment that ensures confidentiality of all State Confidential
Information wherever located. Grantee shall provide the State with access, subject to
Grantee'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, Grantee shall return State Records provided
to Grantee or destroy such State Records and certify to the State that it has done so,as directed
by the State. If Grantee is prevented by law or regulation from returning or destroying State
Confidential Information, Grantee warrants it will guarantee the confidentiality of, and cease
to use, such State Confidential Information.
D. Incident Notice and Remediation
If Grantee 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 Grantee can establish that none of Grantee or any of its
agents, employees, assigns or Subcontractors are the cause or source of the Incident, Grantee
shall be responsible for the cost of notifying each person who may have been impacted by
the Incident. After an Incident, Grantee shall take steps to reduce the risk of incurring a
similar type of Incident in the future as directed by the State, which may include, but is not
limited to, developing and implementing a remediation plan that is approved by the State at
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no additional cost to the State. The State may adjust or direct modifications to this plan, in its
sole discretion and Grantee shall make all modifications as directed by the State. If Grantee
cannot produce its analysis and plan within the allotted time, the State, in its sole discretion,
may perform such analysis and produce a remediation plan, and Grantee shall reimburse the
State for the reasonable costs thereof.
E. Compliance
Grantee shall review, on a semi-annual basis, all OIS policies and procedures which OIS has
promulgated pursuant to CRS §§ 24-37.5-401 through 406 and 8 CCR § 1501-5 and posted
at http://oit.state.co.us/ois, to ensure compliance with the standards and guidelines published
therein. Grantee shall cooperate, and shall cause its Subcontractors to cooperate, with the
performance of security audit and penetration tests by OIS or its designee.
F. Safeguarding PII
If Grantee or any of its Subcontractors will or may receive PII under this Contract, Grantee
shall provide for the security of such PII, in a form acceptable to the State, including,without
limitation,non-disclosure,use of appropriate technology, security practices,computer access
security, data access security,data storage encryption,data transmission encryption, security
inspections, and audits. Grantee shall take full responsibility for the security of all PII in its
possession or in the possession of its Subcontractors, and shall hold the State harmless for
any damages or liabilities resulting from the unauthorized disclosure or loss thereof.
11. CONFLICTS OF INTEREST
A. Actual Conflicts of Interest
Grantee shall not engage in any business or activities, or maintain any relationships that
conflict in any way with the full performance of the obligations of Grantee under this
Agreement. Such a conflict of interest would arise when a Grantee or Subcontractor's
employee, officer or agent were to offer or provide any tangible personal benefit to an
employee of the State, or any member of his or her immediate family or his or her partner,
related to the award of, entry into or management or oversight of this Agreement.
B. Apparent Conflicts of Interest
Grantee acknowledges that,with respect to this Agreement, even the appearance of a conflict
of interest shall be harmful to the State's interests. Absent the State's prior written approval,
Grantee shall refrain from any practices, activities or relationships that reasonably appear to
be in conflict with the full performance of Grantee's obligations under this Agreement.
C. Disclosure to the State
If a conflict or the appearance of a conflict arises,or if Grantee is uncertain whether a conflict
or the appearance of a conflict has arisen, Grantee shall submit to the State a disclosure
statement setting forth the relevant details for the State's consideration. Failure to promptly
submit a disclosure statement or to follow the State's direction in regard to the actual or
apparent conflict constitutes a breach of this Agreement.
12. INSURANCE
Grantee shall obtain and maintain, and ensure that each Subcontractor shall obtain and maintain,
insurance as specified in this section at all times during the term of this Agreement. All insurance
policies required by this Agreement that are not provided through self-insurance shall be issued by
insurance companies as approved by the State.
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A. Workers' Compensation
Workers' compensation insurance as required by state statute, and employers' liability
insurance covering all Grantee or Subcontractor employees acting within the course and
scope of their employment.
B. General Liability
Commercial general liability insurance covering premises operations, fire damage,
independent contractors, products and completed operations, blanket contractual liability,
personal injury, and advertising liability with minimum limits as follows:
i. $1,000,000 each occurrence;
ii. $1,000,000 general aggregate;
iii. $1,000,000 products and completed operations aggregate; and
iv. $50,000 any 1 fire.
C. Automobile Liability
Automobile liability insurance covering any auto (including owned, hired and non-owned
autos) with a minimum limit of$1,000,000 each accident combined single limit.
D. Additional Insured
The State shall be named as additional insured on all commercial general liability policies
(leases and construction contracts require additional insured coverage for completed
operations) required of Grantee and Subcontractors.
E. Primacy of Coverage
Coverage required of Grantee and each Subcontractor shall be primary over any insurance or
self-insurance program carried by Grantee or the State.
F. 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 Grantee and Grantee shall forward such notice to the State in accordance with
§16 within 7 days of Grantee's receipt of such notice.
G. Subrogation Waiver
All commercial insurance policies secured or maintained by Grantee or its Subcontractors in
relation to this Agreement shall include clauses stating that each carrier shall waive all rights
of recovery under subrogation or otherwise against Grantee or the State, its agencies,
institutions, organizations, officers, agents, employees, and volunteers.
H. Public Entities
If Grantee is a "public entity" within the meaning of the Colorado Governmental Immunity
Act, §24-10-101, et seq., C.R.S. (the "GIA"), Grantee shall maintain, in lieu of the liability
insurance requirements stated above,at all times during the term of this Contract such liability
insurance,by commercial policy or self-insurance,as is necessary to meet its liabilities under
the GIA. If a Subcontractor is a public entity within the meaning of the GIA, Grantee shall
ensure that the Subcontractor maintain at all times during the terms of this Grantee, in lieu of
the liability insurance requirements stated above, such liability insurance, by commercial
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policy or self-insurance, as is necessary to meet the Subcontractor's obligations under the
GIA.
I. Certificates
For each commercial insurance plan provided by Grantee under this Agreement,upon request
by State, Grantee shall provide to the State certificates evidencing Grantee's insurance
coverage required in this Agreement within 7 Business Days following the Effective Date.
Grantee 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 Grantee's subcontract is not in effect as of the Effective Date, Grantee shall provide
to the State certificates showing Subcontractor insurance coverage required under this
Agreement within 7 Business Days following Grantee's execution of the subcontract. No
later than 15 days before the expiration date of Grantee's or any Subcontractor's coverage,
Grantee shall deliver to the State certificates of insurance evidencing renewals of coverage.
At any other time during the term of this Agreement,upon request by the State,Grantee 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
Grantee,or the appointment of a receiver or similar officer for Grantee or any of its property,
which is not vacated or fully stayed within 30 days after the institution of such proceeding,
shall also constitute a breach.
B. Notice and Cure Period
In the event of a breach, the aggrieved Party shall give written notice of breach to the other
Party. If the notified Party does not cure the breach, at its sole expense, within 30 days after
the delivery of written notice,the Party may exercise any of the remedies as described in§14
for that Party. Notwithstanding any provision of this Agreement to the contrary, the State, in
its discretion, need not provide notice or a cure period and may immediately terminate this
Agreement in whole or in part or institute any other remedy in this Agreement in order to
protect the public interest of the State.
14. REMEDIES
A. State's Remedies
If Grantee is in breach under any provision of this Agreement and fails to cure such breach,
the State, following the notice and cure period set forth in §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 Grantee's uncured breach,the State may terminate this entire Agreement
or any part of this Agreement. Additionally, if Grantee fails to comply with any terms
of the Federal Award,then the State may,in its discretion or at the direction of a Federal
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Awarding Agency, terminate this entire Agreement or any part of this Agreement.
Grantee shall continue performance of this Agreement to the extent not terminated, if
any.
a. Obligations and Rights
To the extent specified in any termination notice, Grantee shall not incur further
obligations or render further performance past the effective date of such notice,
and shall terminate outstanding orders and subcontracts with third parties.
However, Grantee shall complete and deliver to the State all Work not cancelled
by the termination notice, and may incur obligations as necessary to do so within
this Contract's terms. At the request of the State, Grantee shall assign to the State
all of Grantee's rights, title, and interest in and to such terminated orders or
subcontracts. Upon termination, Grantee shall take timely, reasonable and
necessary action to protect and preserve property in the possession of Grantee but
in which the State has an interest. At the State's request, Grantee shall return
materials owned by the State in Grantee's possession at the time of any
termination. Grantee shall deliver all completed Work Product and all Work
Product that was in the process of completion to the State at the State's request.
b. Payments
Notwithstanding anything to the contrary, the State shall only pay Grantee for
accepted Work received as of the date of termination. If, after termination by the
State, the State agrees that Grantee was not in breach or that Grantee's action or
inaction was excusable, such termination shall be treated as a termination in the
public interest, and the rights and obligations of the Parties shall be as if this
Agreement had been terminated in the public interest under§2.E.
c. Damages and Withholding
Notwithstanding any other remedial action by the State, Grantee shall remain
liable to the State for any damages sustained by the State in connection with any
breach by Grantee,and the State may withhold payment to Grantee for the purpose
of mitigating the State's damages until such time as the exact amount of damages
due to the State from Grantee is determined. The State may withhold any amount
that may be due Grantee as the State deems necessary to protect the State against
loss including, without limitation, loss as a result of outstanding liens and excess
costs incurred by the State in procuring from third parties replacement Work as
cover.
ii. Remedies Not Involving Termination
The State, in its discretion, may exercise one or more of the following additional
remedies:
a. Suspend Performance
Suspend Grantee's performance with respect to all or any portion of the Work
pending corrective action as specified by the State without entitling Grantee to an
adjustment in price or cost or an adjustment in the performance schedule. Grantee
shall promptly cease performing Work and incurring costs in accordance with the
State's directive, and the State shall not be liable for costs incurred by Grantee
after the suspension of performance.
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b. Withhold Payment
Withhold payment to Grantee until Grantee corrects its Work.
c. Deny Payment
Deny payment for Work not performed, or that due to Grantee's actions or
inactions, cannot be performed or if they were performed are reasonably of no
value to the state; provided,that any denial of payment shall be equal to the value
of the obligations not performed.
d. Removal
Demand immediate removal of any of Grantee's employees, agents, or
Subcontractors from the Work whom the State deems incompetent, careless,
insubordinate, unsuitable, or otherwise unacceptable or whose continued relation
to this Agreement is deemed by the State to be contrary to the public interest or
the State's best interest.
e. Intellectual Property
If any Work infringes, or if the State in its sole discretion determines that any
Work is likely to infringe, a patent, copyright, trademark, trade secret or other
intellectual property right, Grantee shall, as approved by the State (i) secure that
right to use such Work for the State and Contractor; (ii) replace the Work with
noninfringing Work or modify the Work so that it becomes noninfringing;or,(iii)
remove any infringing Work and refund the amount paid for such Work to the
State.
B. Grantee's Remedies
If the State is in breach of any provision of this Agreement and does not cure such breach,
Grantee, following the notice and cure period in §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 Grantee for resolution.
B. Resolution of Controversies
If the initial resolution described in §15.A fails to resolve the dispute within 10 Business
Days, Grantee shall submit any alleged breach of this Agreement by the State to the
Procurement Official of Colorado Department of Transportation as described in §24-101-
301(30), C.R.S. for resolution following the same resolution of controversies process as
described in §§24-106-109, 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 Grantee wishes to challenge any decision rendered by the
Procurement Official, Grantee's challenge shall be an appeal to the executive director of the
Department of Personnel and Administration, or their delegate, in the same manner as
described in the Resolution Statutes before Grantee pursues any further action. Except as
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otherwise stated in this Section, all requirements of the Resolution Statutes shall apply
including, without limitation, time limitations regardless of whether the Colorado
Procurement Code applies to this Agreement.
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 (A) by hand with receipt required, (B) by certified or registered mail to such Party's
principal representative at the address set forth below or(C)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 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: For Grantee:
Kaitlyn Westendorf Ian Turner
Division of Aeronautics Pueblo Memorial Airport
5126 Front Range Parkway 31201 Bryan Circle
Watkins, CO 80137 Pueblo,CO 81001
kaitlyn.westendorf@state.co.us iturner@pueblo.us
(303) 512-5258 (719)553-2744
17. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION
A. Work Product
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, Grantee 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 Grantee cannot make any of the assignments required by this section,
Grantee hereby grants to the State a perpetual, irrevocable, royalty-free license to use,
modify, copy, publish, display, perform, transfer, distribute, sell, and create derivative
works of the Work Product and all works based upon, derived from, or incorporating
the Work Product by all means and methods and in any format now known or invented
in the future. The State may assign and license its rights under this license.
ii. Patents
In addition, Grantee 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
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the Work Product. Such license applies only to those patent claims licensable by
Grantee that are necessarily infringed by the Work Product alone,or by the combination
of the Work Product with anything else used by the State.
iii. Assignments and Assistance
Whether or not Grantee is under contract with the State at the time, Grantee shall
execute applications, assignments, and other documents, and shall render all other
reasonable assistance requested by the State, to enable the State to secure patents,
copyrights, licenses and other intellectual property rights related to the Work Product.
The Parties intend the Work Product to be works made for hire. Grantee assigns to the
State and its successors and assigns, the entire right, title, and interest in and to all
causes of action, either in law or in equity, for past, present, or future infringement of
intellectual property rights related to the Work Product and all works based on, derived
from, or incorporating the Work Product.
B. Exclusive Property of the State
Except to the extent specifically provided elsewhere in this Agreement,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 (collectively, "State Materials"). Grantee shall not use, willingly allow,cause or
permit Work Product or State Materials to be used for any purpose other than the performance
of Grantee's obligations in this Agreement without the prior written consent of the State.
Upon termination of this Agreement for any reason, Grantee shall provide all Work Product
and State Materials to the State in a form and manner as directed by the State.
C. Exclusive Property of Grantee
Grantee retains the exclusive rights,title, and ownership to any and all pre-existing materials
owned or licensed to Grantee including, but not limited to, all pre-existing software, licensed
products, associated source code, machine code, text images, audio and/or video, and third-
party materials, delivered by Grantee under this Contract, whether incorporated in a
Deliverable or necessary to use a Deliverable (collectively, "Grantee Property"). Grantee
Property shall be licensed to the State as set forth in this Contract or a State approved license
agreement: (i) entered into as exhibits to this Agreement, (ii) obtained by the State from the
applicable third-party vendor, or (iii) in the case of open source software, the license terms
set forth in the applicable open source license agreement.
18. 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 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 Grantee under this Agreement is $100,000 or greater, either on
the Effective Date or at anytime thereafter, this §19 shall apply. Grantee agrees to be governed by
and comply with the provisions of §§24-106-103, 24-102-206, 24-106-106, and 24-106-107,
C.R.S. regarding the monitoring of vendor performance and the reporting of Agreement
performance information in the State's Agreement management system ("Contract Management
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System" or "CMS"). Grantee'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
Grantee's rights and obligations under this Agreement are personal and may not be
transferred or assigned without the prior, written consent of the State. Any attempt at
assignment or transfer without such consent shall be void. Any assignment or transfer of
Grantee's rights and obligations approved by the State shall be subject to the provisions of
this Agreement.
B. Subcontracts
Grantee shall not enter into any subgrant or subcontract in connection with its obligations
under this Agreement.
C. Binding Effect
Except as otherwise provided in §20.A., all provisions of this Agreement, including the
benefits and burdens, shall extend to and be binding upon the Parties' respective successors
and assigns.
D. Authority
Each Party represents and warrants to the other that the execution and delivery of this
Agreement and the performance of such Party's obligations have been duly authorized.
E. Captions and References
The captions and headings in this Agreement are for convenience of reference only,and shall
not be used to interpret, define, or limit its provisions. All references in this Agreement to
sections (whether spelled out or using the § symbol), subsections, exhibits or other
attachments, are references to sections, subsections, exhibits or other attachments contained
herein or incorporated as a part hereof, unless otherwise noted.
F. Counterparts
This Agreement may be executed in multiple, identical, original counterparts, each of which
shall be 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.
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I. Modification
Except as otherwise provided in this Agreement, any modification to this Agreement shall
only be effective if agreed to in a formal amendment to this Agreement, properly executed
and approved in accordance with applicable Colorado State law and State Fiscal Rules.
Modifications permitted under this Agreement, other than Agreement amendments, shall
conform to the policies issued by the Colorado State Controller.
J. Statutes, Regulations, Fiscal Rules, and Other Authority.
Any reference in this Agreement to a statute, regulation, State Fiscal Rule, fiscal policy or
other authority shall be interpreted to refer to such authority then current, as may have been
changed or amended since the Effective Date of this Agreement.
K. 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 §21 of the main body of this Agreement.
ii. The provisions of the other sections of the main body of this Agreement.
iii. Exhibit A, Discretionary Aviation Grant Application.
iv. Exhibit B, Resolution.
v. Exhibit C, Sample Option Letter.
L. Severability
The invalidity or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement,which shall remain in full
force and effect,provided that the Parties can continue to perform their obligations under this
Agreement in accordance with the intent of this Agreement.
M. Survival of Certain Agreement Terms
Any provision of this Agreement that imposes an obligation on a Party after termination or
expiration of this Agreement shall survive the termination or expiration of this Agreement
and shall be enforceable by the other Party.
N. Taxes
The State is exempt from federal excise taxes under I.R.C. Chapter 32 (26 U.S.C., Subtitle
D,Ch.32)(Federal Excise Tax Exemption Certificate of Registry No. 84-730123K)and from
State and local government sales and use taxes under §§39-26-704(1), et seq., C.R.S.
(Colorado Sales Tax Exemption Identification Number 98-02565). The State shall not be
liable for the payment of any excise, sales, or use taxes, regardless of whether any political
subdivision of the state imposes such taxes on Grantee. Grantee shall be solely responsible
for any exemptions from the collection of excise, sales or use taxes that Grantee may wish to
have in place in connection with this Agreement.
O. Third Party Beneficiaries
Except for the Parties' respective successors and assigns described in§20.A.,this Agreement
does not and is not intended to confer any rights or remedies upon any person or entity other
than the Parties. Enforcement of this Agreement and all rights and obligations hereunder are
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reserved solely to the Parties. Any services or benefits which third parties receive as a result
of this Agreement are incidental to this Agreement,and do not create any rights for such third
parties.
P. Waiver
A Party's failure or delay in exercising any right, power, or privilege under this Agreement,
whether explicit or by lack of enforcement, shall not operate as a waiver,nor shall any single
or partial exercise of any right, power, or privilege preclude any other or further exercise of
such right, power, or privilege.
Q. CORA Disclosure
To the extent not prohibited by federal law, this Agreement and the performance measures
and standards required under §24-106-107, C.R.S., if any, are subject to public release
through the CORA.
R. Standard and Manner of Performance
Grantee shall perform its obligations under this Agreement in accordance with the degree of
care, skill and diligence in the industry, trades or profession and in the sequence and manner
set forth in this Grant.
S. Licenses, Permits, and Other Authorizations.
Grantee shall secure, prior to the Effective Date, and maintain at all times during the term of
this Agreement, at its sole expense, all licenses, certifications, permits, and other
authorizations required to perform its obligations under this Agreement, and shall ensure that
all employees, agents and Subcontractors secure and maintain at all times during the term of
their employment, agency or Subcontractor, all license, certifications, permits and other
authorizations required to perform their obligations in relation to this Agreement.
21. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-1)
These Special Provisions apply to all contracts except where noted in italics.
A. CONTROLLER'S APPROVAL. §24-30-202(1), C.R.S.
This Agreement shall not be valid until it has been approved by the Colorado State Controller
or designee.
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.
No term or condition of this Agreement shall be construed or interpreted as a waiver, express
or implied, of any of the immunities, rights, benefits, protections, or other provisions, of the
Colorado Governmental Immunity Act, §24-10-101, et seq., C.R.S., or the Federal Tort
Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b).
D. INDEPENDENT CONTRACTOR
Grantee shall perform its duties hereunder as an independent contractor and not as an
employee. Neither Grantee nor any agent or employee of Grantee shall be deemed to be an
agent or employee of the State. Grantee and its employees and agents are not entitled to
unemployment insurance or workers compensation benefits through the State and the State
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shall not pay for or otherwise provide such coverage for Grantee or any of its agents or
employees. Unemployment insurance benefits will be available to Grantee and its employees
and agents only if such coverage is made available by Grantee or a third party. Grantee shall
pay when due all applicable employment taxes and income taxes and local head taxes
incurred pursuant to this Agreement.Grantee shall not have authorization,express or implied,
to bind the State to any agreement, liability or understanding, except as expressly set forth
herein. Grantee shall(i)provide and keep in force workers'compensation and unemployment
compensation insurance in the amounts required by law, (ii) provide proof thereof when
requested by the State, and (iii)be solely responsible for its acts and those of its employees
and agents.
E. COMPLIANCE WITH LAW.
Grantee shall strictly 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.
Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the
interpretation, execution, and enforcement of this Agreement. Any provision included or
incorporated herein by reference which conflicts with said laws, rules, and regulations shall
be null and void. Any provision incorporated herein by reference which purports to negate
this or any other Special Provision in whole or in part shall not be valid or enforceable or
available in any action at law, whether by way of complaint, defense, or otherwise. Any
provision rendered null and void by the operation of this provision shall not invalidate the
remainder of this Agreement, to the extent capable of execution.
G. BINDING ARBITRATION PROHIBITED.
The State of Colorado does not agree to binding arbitration by any extra judicial body or
person. Any provision to the contrary in this Agreement or incorporated herein by reference
shall be null and void.
H. SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00.
State or other public funds payable under this Agreement shall not be used for the acquisition,
operation, or maintenance of computer software in violation of federal copyright laws or
applicable licensing restrictions. Grantee hereby certifies and warrants that, during the term
of this Agreement and any extensions, Grantee has and shall maintain in place appropriate
systems and controls to prevent such improper use of public funds. If the State determines
that Grantee is in violation of this provision, the State may exercise any remedy available at
law or in equity or under this Agreement, including, without limitation, immediate
termination of this Agreement and any remedy consistent with federal copyright laws or
applicable licensing restrictions.
I. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. §§24-18-201 and
24-50-507, C.R.S.
The signatories aver that to their knowledge, no employee of the State has any personal or
beneficial interest whatsoever in the service or property described in this Agreement. Grantee
has no interest and shall not acquire any interest,direct or indirect,that would conflict in any
manner or degree with the performance of Grantee's services and Grantee shall not employ
any person having such known interests.
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J. VENDOR OFFSET. §§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.
K. PUBLIC CONTRACTS FOR SERVICES. §§8-17.5-101,et seq.,C.R.S.
[Not applicable to agreements relating to the offer, issuance, or sale of securities,
investment advisory services or fund management services, sponsored projects,
intergovernmental agreements, or information technology services or products and
services/Grantee certifies,warrants,and agrees that it does not knowingly employ or contract
with an illegal alien who will perform work under this Agreement and will confirm the
employment eligibility of all employees who are newly hired for employment in the United
States to perform work under this Agreement, through participation in the E-Verify Program
established under Pub. L. 104-208 or the State verification program established pursuant to
§8-17.5-102(5)(c), C.R.S., Grantee shall not knowingly employ or contract with an illegal
alien to perform work under this Agreement or enter into a contract with a Subcontractor that
fails to certify to Grantee that the Subcontractor shall not knowingly employ or contract with
an illegal alien to perform work under this Agreement. Grantee (i) shall not use E-Verify
Program or State program procedures to undertake pre-employment screening of job
applicants while this Agreement is being performed, (ii) shall notify the Subcontractor and
the contracting State agency within 3 days if Grantee has actual knowledge that a
Subcontractor is employing or contracting with an illegal alien for work under this
Agreement, (iii) shall terminate the subcontract if a Subcontractor does not stop employing
or contracting with the illegal alien within 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 Grantee
participates in the State program, Grantee shall deliver to the contracting State agency,
Institution of Higher Education or political subdivision, a written, notarized affirmation,
affirming that Grantee has examined the legal work status of such employee, and shall
comply with all of the other requirements of the State program. If Grantee fails to comply
with any requirement of this provision or §§8-17.5-101 et seq., C.R.S., the contracting State
agency, institution of higher education or political subdivision may terminate this Agreement
for breach and, if so terminated, Grantee shall be liable for damages.
L. PUBLIC CONTRACTS WITH NATURAL PERSONS. §§24-76.5-101, et seq., C.R.S.
Grantee, if a natural person 18 years of age or older, hereby swears and affirms under penalty
of perjury that he or she (i) is a citizen or otherwise lawfully present in the United States
pursuant to federal law,(ii)shall comply with the provisions of§§24-76.5-101 et seq.,C.R.S.,
and (iii) has produced one form of identification required by §24-76.5-103, C.R.S. prior to
the Effective Date of this Agreement.
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EXHIBIT A, DISCRETIONARY AVIATION GRANT APPLICATION
CDOT
D O Colorado Division of Aeronautics
CO If Discretionary Aviation Grant Application
INFORMATION''''
APPLICANT SPONSOR: AIRPORT: IDENTIFIER:
City of Pueblo Pueblo Memorial Airport PUB
PROJECT DIRECTOR: Ian Turner
MAILING ADDRESS: EMAIL iturner@pueblo.us
31201 Bryan Circle ADDRESS:
Pueblo, CO 81001 PHONE (719) 553-2744
NUMBER:
TERMS
18-PUB-01 Execution Date: Expiration Date:
June 30, 2021
a
Funding Source Funding Amount
State Aviation Grant: $85,803.00
Local Cash: $85,804.00
Local In-Kind: $0.00
Federal Aviation Grant: $3,260,528.00
Total Project Funding: $3,432,135.00
a� n eft
ELEMENT STATE FUNDINfi LOCAL FUNDING FEDERAL FUNDING TOTAL
DESCRIPTION
A. Participate in
Federally Funded
Apron Rehabilitation $85,803.00 Up to $85,804.00 2.50 $3,260,528.00 95.00 $3,432,135.00
(Construct Islands) 2.50%
and Lighting
TOTALS $85,803.00 $85,804.00 $3,260,528.00 $3,432,135.00
Exhibit A Page 1 of 1
EXHIBIT B
ORDINANCE NO. 9385
AN ORDINANCE APPROVING AND ACCEPTING GRANT
AGREEMENT 18-PUB-01 BETWEEN THE STATE OF
COLORADO, ACTING BY AND THROUGH THE
COLORADO DEPARTMENT OF TRANSPORTATION,
COLORADO AERONAUTICAL BOARD, DIVISION OF
AERONAUTICS, AND THE CITY OF PUEBLO, A
MUNICIPAL CORPORATION, AND BUDGETING AND
APPROPRIATING FUNDS IN THE AMOUNT OF $85,803 TO
BE RECEIVED FROM THE STATE, INCREASING THE
TOTAL AMOUNT IN THE REHAB PORTION OF AIRCRAFT
APRON PROJECT NO. AP1801 TO $3,432,135, AND
AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL
TO EXECUTE SAME
WHEREAS, the General Assembly of the State of Colorado declared in Title 43 of
the Colorado Revised Statutes, Article 10, 1991 in C.R.S. §43-10-101 (the Act) "...that
there exists a need to promote the safe operations and accessibility of general aviation in
this state; that improvements to general aviation transportation facilities will promote
diversified economic development across the state; and that accessibility to airport
facilities for residents of this state is crucial in the event of a medical or other type of
emergency..."; and
WHEREAS, the Act created the Colorado Aeronautical Board ("the Board") to
establish policy and procedures for distribution of monies in the Aviation Fund and created
the Division of Aeronautics ("the Division") to carry out the directives of the Board,
including technical and planning assistance to airports and the administration of the state
aviation system grant program (See C.R.S. §43-10-103 and C.R.S. §43-10-105 and
C.R.S. §43-10-108.5 of the Act); and
WHEREAS, any entity operating a public-accessible airport in the state may file an
application for and be recipient of a grant to be used solely for aviation purposes. The
Division is authorized to assist such airports as request assistance by means of a
Resolution or Ordinance passed by the applicant's duly-authorized governing body, which
understands that all funds shall be used exclusively for aviation purposes and that it will
comply with all grant procedures and requirements as defined in the Division's Program
and Procedures Manual, ("the Manual"); NOW, THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Grant Agreement CDAG #18-PUB-01 by and between the State of Colorado,
acting by and through the Colorado Department of Transportation, Colorado Aeronautical
Board, Division of Aeronautics, ("State") and the City of Pueblo, a Municipal Corporation,
a true copy of which is attached hereto (the "Grant Agreement"), having been approved
as to form by the City Attorney, is hereby accepted and approved.
SECTION 2.
The City Council of the City of Pueblo, as a duly authorized governing body of the
grant applicant, hereby formally request assistance from the Colorado Aeronautical Board
and the Division of Aeronautics ("Division") in the form of a state aviation system grant.
The City of Pueblo states that such grant shall be used solely for aviation purposes, as
determined by the State, and as generally described in the Application.
The City of Pueblo understands that each airport operating entity that applies for
and accepts a grant thereby makes a COMMITMENT:
a) to keep the airport facility accessible to, and open to, the public during the
entire useful life of the grant funded improvements/equipment; or
b) to reimburse the Division for any unexpired useful life of the
improvements/equipment, on a pro-rata basis.
By signing the Grant Agreement, the City of Pueblo commits to keep open and
accessible for public use all grant funded facilities, improvements and services for their
useful life, as determined by the Division and as stated in the Grant Agreement.
SECTION 3.
The City of Pueblo hereby designates the Director of Aviation as the Project
Director, as described in the Manual, and authorizes the Project Director to act in all
matters relating to the work project proposed in the Application in its behalf.
SECTION 4.
The City of Pueblo has appropriated all funds that are currently required to be
provided by the Applicant under the terms and conditions of the Grant Agreement. Any
and all financial obligations of the City of Pueblo payable after the current fiscal year are
contingent upon funds for that purpose being appropriated, budgeted, and otherwise
made available.
SECTION 5.
The City of Pueblo hereby accepts all guidelines, procedures, standards and
requirements described in the Manual as applicable to the performance of the grant work
and hereby approves the Grant Agreement submitted by the State, including all terms
and conditions contained therein.
SECTION 6.
Funds in the amount of $85,803.00 from the Grant Agreement are hereby
budgeted and appropriated to the Rehab Portion of Aircraft Apron Project No. AP1801.
SECTION 7.
Funding for the Rehab Portion of Aircraft Apron Project No. AP1801 is hereby
increased to $3,432,135.00.
SECTION 8.
The President of City Council is hereby authorized to execute the Grant Agreement
in the name and on behalf of the City of Pueblo, and the City Clerk is directed to attest
same.
SECTION 9.
The officers and staff of the City are directed and authorized to perform any and
all acts consistent with the intent of this Ordinance and the attached Grant Agreement to
effectuate the transactions described therein.
SECTION 10.
This Ordinance shall become effective immediately upon final passage and
approval.
INTRODUCED November 26, 2018
BY: Ed Brown
MEMBER OF CITY COUNCIL
APPROVED:
TENT OF CITY COUNCIL
ATTESTED BY:
ACTING,, CLERK
Dep-+1
PASSED AND APPROVED: December 10, 2018
CDOT Aeronautics Division
CDAG#: 18-PUB-01
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EXHIBIT C, SAMPLE OPTION LETTER
State Agency Option Letter Number
Colorado Department of Transportation,Colorado Insert the Option Number(e.g. "1" for the first option)
Aeronautical Board,Division of Aeronautics
Grantee Original Agreement Number
City of Pueblo Insert CMS number or Other Contract Number of the Original Contract
Current Agreement Maximum Amount Option Agreement Number
Initial Funding Insert CMS number or Other Contract Number of this Option
State: $0.00
Modifications Agreement Performance Beginning Date
Option Letter 1 $0.00 The later of the Effective Date or Month Day,Year
Option Letter 2 $0.00
Option Letter 3 $0.00 Current Agreement Expiration Date
Option Letter 4 $0.00 Month Day,Year
Modified Agreement Maximum $0.00
Amount
1. OPTIONS:
A. Option to extend for an Extension Term and/or add additional funds.
2. REQUIRED PROVISIONS:
A. For use with Option 1(A): In accordance with Section(s)Number of the Original Agreement referenced above,
the State hereby exercises its option for an additional term,beginning Insert start date and ending on the current
Agreement expiration date shown above,at the rates stated in the Original Agreement,as amended.
B. For use with Options 1(A): In accordance with Section(s)Number of the Original Agreement referenced above,
the State hereby exercises its option to Increase/Decrease the grant maximum amount for a change in services as
stated in the Original Agreement,as amended.
C. For use with all Option Letters:The Agreement Maximum Amount table on the Agreement's Signature and
Cover Page is hereby deleted and replaced with the Current Agreement Maximum Amount table shown above and
Exhibit A is hereby deleted and replaced with Exhibit A-#incorporated and attached hereto.
3. OPTION EFFECTIVE DATE:
A. The effective date of this Option Letter is upon approval of the State Controller,whichever is later.
In accordance with §24-30-202,C.R.S.,this Option is not
STATE OF COLORADO valid until signed and dated below by the State Controller or
John W. Hickenlooper,Governor an authorized delegate.
Department of Transportation STATE CONTROLLER
Robert Jaros,CPA, MBA,JD
By: David R. Ulane,Aeronautics Division Director
for Michael P. Lewis, Executive Director By:
Department of Transportation
Liliya Gershman,Accounting Controller
Date:
Option Effective Date:
Exhibit C Page 1 of 1