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ORDINANCE NO. 9665
AN ORDINANCE ESTABLISHING THE COLORADO ENERGY
OFFICE CHARGE AHEAD COLORADO PROJECT NO. PL2002,
BUDGETING AND APPROPRIATING FUNDS IN THE AMOUNT
$27,000 FOR THE SAID PROJECT, APPROVING THE TERMS
AND CONDITIONS OF THE STATE OF COLORADO SMALL
DOLLAR GRANT AWARD FROM THE COLORADO ENERGY
OFFICE, APPROVING AN AGREEMENT BETWEEN THE CITY
OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND
BLACK HILLS ENERGY RELATING TO SAID PROJECT AND
AUTHORIZING THE MAYOR TO EXECUTE SAME
WHEREAS, the Colorado Energy Office has offered funds through the Charge Ahead
Colorado Grant to construct three (3) Electric Vehicle Charging Stations; NOW THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Contract between the City of Pueblo, a Colorado Municipal Corporation, and the
Colorado Energy Office (hereinafter referred to as the “Contract”), a copy of which is attached,
having been approved as to form by the City Attorney, is hereby approved.
SECTION 2.
The Agreement between the City of Pueblo, a Colorado Municipal Corporation, and Black
Hills Energy, (hereinafter referred to as the “Agreement), a copy of which is attached, having been
approved as to form by the City Attorney, is hereby approved.
SECTION 3.
The Mayor is authorized to execute and deliver the Contract and the Agreement in the
name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same.
SECTION 4.
Project No. PL2002, for the Colorado Energy Office Charge Ahead Colorado Project is
hereby established.
SECTION 5.
Funds in the amount of $27,000 are hereby budgeted and appropriated for said Project.
SECTION 6.
The officers and staff of the City are authorized and directed to perform any and all acts
consistent with the intent of the Ordinance and Agreement to implement the policies and
procedures described therein.
SECTION 7.
This Ordinance shall become effective immediately upon final passage and approval.
Action by City Council:
Introduced and initial adoption of Ordinance by City Council on February 10, 2020.
Final adoption of Ordinance by City Council on February 24, 2020.
President of City Council
Action by the Mayor:
☒ Approved on February 2 6, 2020 .
☐ Disapproved on based on the following objections:
Mayor
Action by City Council After Disapproval by the Mayor:
☐ Council did not act to override the Mayor's veto.
☐ Ordinance re-adopted on a vote of , on
☐ Council action on __________________failed to override the Mayor’s veto.
President of City Council
ATTEST
City Clerk
City Clerk’s Office Item # R-3
BACKGROUND PAPER FOR PROPOSED
ORDINANCE
COUNCIL MEETING DATE: February 10, 2020
TO: President Dennis E. Flores and Members of City Council
CC: Nicholas Gradisar, Mayor
VIA: Brenda Armijo, City Clerk
FROM: Scott Hobson, Acting Director of Planning and Community Development
SUBJECT: AN ORDINANCE ESTABLISHING THE COLORADO ENERGY OFFICE
CHARGE AHEAD COLORADO PROJECT NO. PL2002, BUDGETING AND
APPROPRIATING FUNDS IN THE AMOUNT $27,000 FOR THE SAID
PROJECT, APPROVING THE TERMS AND CONDITIONS OF THE STATE OF
COLORADO SMALL DOLLAR GRANT AWARD FROM THE COLORADO
ENERGY OFFICE, APPROVING AN AGREEMENT BETWEEN THE CITY OF
PUEBLO, A COLORADO MUNICIPAL CORPORATION AND BLACK HILLS
ENERGY RELATING TO SAID PROJECT AND AUTHORIZING THE MAYOR TO
EXECUTE SAME
SUMMARY:
This Ordinance budgets and appropriates $27,000 and approves the Terms and Conditions of
the Charge Ahead Colorado Grant Award. This Ordinance also approves an Agreement between
the City of Pueblo and Black Hills Energy related to the procurement and installation of three (3)
level-II Electric Vehicle Charging Stations.
PREVIOUS COUNCIL ACTION:
On February 13, 2017, Pueblo City Council Passed Resolution No. 13612 adopting a vision of
100% renewable energy powering the City of Pueblo’s electric needs by 2035.
BACKGROUND:
The City of Pueblo has a long reputation of environmental stewardship and conservation. In 2017,
the City made national news with its commitment to 100% renewable energy by the year 2035.
On the macro level, this is a commitment to both minimize our dependence of fossil fuels and
reduce our carbon footprint in energy production. On the micro level, electric vehicles aim to meet
this same goal. Providing the necessary infrastructure for electric vehicle technology is consistent
with the City’s long-term sustainability goals.
In October 2019, Black Hills Energy approached the City about a partnership in applying for the
State of Colorado Charge Ahead Grant. Black Hills would handle procurement and installation,
and any cost exceeding the grant amount of $27,000. The City would in turn dedicated parking
spaces, take ownership of the units after installation, enter into an agreement with a vendor that
provides billing, service delivery, and handles maintenance needs. After reviewing the Project
with senior staff, including those representing the Mayor, the grant request was submitted in
October 2019.
ChargePoint, the service vendor, is operated through a mobile application which tracks data and
collects payments. Those payments are then delivered to the City via check or direct deposit. As
part of the grant, the City will enter a 5-year service contract with ChargePoint, which includes
support and maintenance of the charging stations. At the end of the grant, the City may choose
to continue with ChargePoint, change vendors, or develop its own interface with the charging
stations. These electric vehicle charging stations will be managed by City’s Parking Enterprise.
FINANCIAL IMPLICATIONS:
The City will be billed by Black Hills Energy for the electricity that each station pulls. In order to
offset this cost, the rate for charging at these stations should reflect a ten percent (10%) vendor
fee, an admin fee collected by the City, and a charging rate the recuperates all electrical
expenses.
The total Project budget, PL 2002 will be funded through the following sources:
Colorado Energy Office – Charge Ahead Grant $ 27,000.00
$ 27,000.00
BOARD/COMMISSION RECOMMENDATION:
Not applicable.
STAKEHOLDER PROCESS:
Not applicable.
ALTERNATIVES:
The Project will not move forward if the Ordinance is not approved.
RECOMMENDATIONS:
Approval of the Ordinance.
Attachments: Proposed Ordinance
Grant Award Letter
Grant Award Terms and Conditions Contract
Black Hills Energy Agreement
CEO Statement of Work and Location Map
COLORADO
CEO Energy Office
Bart Mikitowicz
Planner
The City of Pueblo
211 E D Street
Pueblo, CO 81003
Wednesday, December 4, 2019
RE: Charge Ahead Colorado, Grant Application, October 2019, Intent to Award Letter
This letter serves as the formal notification of the Colorado Energy Office's (CEO) intent to award The
City of Pueblo for three level II multi-port EVSE, per the grant announcement released through the Charge
Ahead Colorado program from October 1st, 2019 - October 30th, 2019. The award amount is $27,000, or
80% of project costs, whichever is lower.
We would like to thank you for your time and efforts in preparing a response to this solicitation. An
affirmative, written response to this letter will indicate your formal acceptance of the award, at which
point we will begin the contracting process. As a reminder, awardees are instructed not to begin work,
purchase materials, or enter into subcontracts relating to the project until the Purchase Order is
executed by the State.
We invite you to contact Program Associate, Addison Phillips, directly at 303-866-2128 or
Addison.phillips@state.co.us if you would like additional information or have any questions about the
evaluation process.
Lastly, congratulations. On behalf of the Colorado Energy Office, we look forward to working with you in
strengthening our state's EV charging network.
Sincerely,
A• 041.4420_
Zachary Owens
Program Manager, Transportation Fuels and Technology
Colorado Energy Office
P 303.866.3279
E zachary.owens@state.co.us
State of Colorado Small Dollar Grant Award Terms and Conditions
I. Offer/Acceptance. This Small Dollar Grant Award, together with these terms and conditions
(including, if applicable, Addendum 1: Additional Terms and Conditions for Information Technology
below), and any other attachments, exhibits, specifications, or appendices, whether attached or
incorporated by reference (collectively the "Agreement") shall represent the entire and exclusive
agreement between the State of Colorado, by and through the agency identified on the face of the Small
Dollar Grant Award("State") and the Subrecipient identified on the face of the Small Dollar Grant Award
("Grantee"). If this Agreement refers to Grantee's bid or proposal, this Agreement is an ACCEPTANCE
of Grantee's OFFER TO PERFORM in accordance with the terms and conditions of this Agreement. If a
bid or proposal is not referenced, this Agreement is an OFFER TO ENTER INTO AGREEMENT, subject
to Grantee's acceptance, demonstrated by Grantee's beginning performance or written acceptance of this
Agreement. Any COUNTER-OFFER automatically CANCELS this Agreement, unless a change order is
issued by the State accepting a counter-offer. Except as provided herein,the State shall not be responsible
or liable for any Work performed prior to issuance of this Agreement. The State's financial obligations to
the Grantee are limited by the amount of Grant Funds awarded as reflected on the face of the Small Dollar
Grant Award.
2. Order of Precedence. In the event of a conflict or inconsistency within this Agreement, such conflict or
inconsistency shall be resolved by giving preference to the documents in the following order of priority:
(1) the Small dollar Grant Award document; (2) these terms and conditions (including, if applicable,
Addendum I below); and(3) any attachments, exhibits, specifications, or appendices, whether attached or
incorporated by reference. Notwithstanding the above, if this Agreement has been funded, in whole or in
part, with a Federal Award, in the event of a conflict between the Federal Grant and this Agreement, the
provisions of the Federal Grant shall control. Grantee shall comply with all applicable Federal provisions
at all times during the term of this Agreement. Any terms and conditions included on Grantee's forms or
invoices not included in this Agreement are void.
3. Changes. Once accepted in accordance with §1,this Agreement shall not be modified, superseded or
otherwise altered,except in writing by the State and accepted by Grantee.
4. Definitions. The following terms shall be construed and interpreted as follows: (a) "Award" means an
award by a Recipient to a Subrecipient; (b) "Budget" means the budget for the Work described in this
Agreement; (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
CRS §24-11-101(1); (d) "UCC" means the Uniform Commercial Code in CRS Title 4; (e) `'Effective
Date" means the date on which this Agreement is issued as shown on the face of the Small Dollar Grant
Award; (t) "Federal Award" means an award of federal financial assistance or a cost-reimbursement
contract, , by a Federal Awarding Agency to the Recipient. "Federal Award" also means an agreement
setting forth the terms and conditions of the Federal Award, which terms and conditions shall flow down
to the Award unless such terms and conditions specifically indicate otherwise. The term does not include
payments to a contractor or payments to an individual that is a beneficiary of a Federal program; (g)
"Federal Awarding Agency" means a Federal agency providing a Federal Award to a Recipient; (h)
"Grant Funds" means the funds that have been appropriated, designated, encumbered, or otherwise made
available for payment by the State under this Agreement; (i)"Matching Funds" mean the funds provided
by the Grantee to meet cost sharing requirements described in this Agreement; (j) "Recipient" means the
State agency identified on the face of the Small Dollar Grant Award; (k) "Subcontractor" means third
parties, if any, engaged by Grantee to aid in performance of the Work; (I) "Subrecipient" means a non-
Federal entity that receives a sub-award from a Recipient to carry out part of a program, but does not
include an individual that is a beneficiary of such program; (m) "Uniform Guidance" means the Office of
Management and Budget Uniform Administrative Requirements, Cost Principles,and Audit Requirements
for Federal Awards, identified as the 2 C.F.R. (Code of Federal Regulations) 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; and (n)
"Work" means the goods delivered or services, or both, performed pursuant to this Agreement and
identified as Line Items on the face of the Small Dollar Grant Award.
5. Delivery. Grantee shall furnish the Work in strict accordance with the specifications and price set forth
in this Agreement. The State shall have no liability to compensate Grantee for the performance of any
Work not specifically set forth in the Agreement.
6. Rights to Materials. [Not Applicable to Agreements issued either in whole in part for Information
Technology, as defined in CRS § 24-37.5-102(2); in which case Addendum 1 §2 applies in lieu of this
section.] Unless specifically stated otherwise in this Agreement, all materials, including without limitation
supplies, equipment, documents, content, information, or other material of any type, whether tangible or
intangible(collectively "Materials"), furnished by the State to Grantee or delivered by Grantee to the State
in performance of its obligations under this Agreement shall be the exclusive property the State. Grantee
shall return or deliver all Materials to the State upon completion or termination of this Agreement.
7. Grantee Records. 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 (including, but not limited to the
operation of programs) performed under this Agreement (collectively "Grantee Records"). Unless
otherwise specified by the State, the Grantee shall retain Grantee 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 finding 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 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. Grantee shall permit the State, the federal government, and any other duly
authorized agent of a governmental agency to audit, inspect, examine, excerpt, copy and transcribe
Grantee Records during the Record Retention Period. Grantee shall make Grantee Records available
during normal business hours at Grantee's office or place of business, or at other mutually agreed upon
times or locations, upon no fewer than two Business Days' notice from the State, unless the State
determines that a shorter period of notice, or no notice, is necessary to protect the interests of the State.
The State, in its discretion, may 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, Grantee shall allow the State to perform all monitoring
required by the Uniform Guidance, based on the State's risk analysis of Grantee and this Agreement, and
the State shall have the right, in its discretion, to change its monitoring procedures and requirements at
any time during the term of this Agreement. The State will monitor Grantee's performance in a manner
that does not unduly interfere with Grantee's performance of the Work. Grantee shall promptly submit to
the State a copy of any final audit report of an audit performed on Grantee Records that relates to or
affects this Agreement or the Work, whether the audit is conducted by Grantee, a State agency or the
State's authorized representative, or a third party. If applicable, the Grantee may be required to perform a
single audit under 2 CFR 200.501, et seq. 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.
8. 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. Grantee shall disclose, in a timely manner, in writing to the State and the Federal
Awarding Agency, all violations of federal or State criminal law involving fraud, bribery, or gratuity
violations potentially affecting the Award. The State or the Federal Awarding Agency may impose any
penalties for noncompliance allowed under 2 CFR Part 180 and 31 U.S.C. 3321, which may include,
without limitation, suspension or debarment.
9. Conflicts of Interest. Grantee acknowledges that with respect to this Agreement, even the appearance of
a conflict of interest is harmful to the State's interests. Absent the State's prior written approval, Grantee
shall refrain from any practices, activities, or relationships that reasonably may appear to be in conflict
with the full performance of Grantee's obligations to the State under this Agreement. If a conflict or
appearance of a conflict of interest exists, or if Grantee is uncertain as to such, 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. Grantee certifies 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.
10. Taxes. The State is exempt from federal excise taxes and from State and local sales and use taxes.
The State shall not be liable for the payment of any excise, sales, of use taxes imposed on Grantee. A tax
exemption certificate will be made available upon Grantee's request. 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.
II. Payment. 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 Document Total shown on
the face of the Small Dollar Grant Award. The State shall pay Grantee in the amounts and in accordance
with the schedule and other conditions set forth in this Agreement. Grantee shall initiate payment requests
by invoice to the State, in a form and manner approved by the State. The State shall pay Grantee for all
amounts due within 45 days after receipt of an Awarding Agency's approved invoicing request, or in
instances of reimbursement grant programs a request for reimbursement, compliant with Generally
Accepted Accounting Principles (GAAP) and, if applicable Government Accounting Standards Board
(GASB) of amount requested. 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 set forth in CRS
§24-30-202(24) until paid in full. Interest shall not accrue if a good faith dispute exists as to the State's
obligation to pay all or a portion of the amount due. Grantee shall invoice the State separately for interest
on delinquent amounts due, referencing the delinquent payment, number of day's interest to be paid, and
applicable interest rate. The acceptance of an invoice shall not constitute acceptance of any Work
performed under this Agreement. Except as specifically agreed in this Agreement, Grantee shall be solely
responsible for all costs, expenses, and other charges it incurs in connection with its performance under
this Grantee.
12. Term. The parties' respective performances under this Agreement shall commence on the "Service
From" date identified on the face of the Small Dollar Grant Award, unless otherwise specified, and shall
terminate on the "Service To" date identified on the face of the Small Dollar Grant Award unless sooner
terminated in accordance with the terms of this Agreement.
13. Payment Disputes. If Grantee disputes any calculation, determination or amount of any payment,
Grantee shall notify the State in writing of its dispute within 30 days following the earlier to occur of
Grantee's receipt of the payment or notification of the determination or calculation of the payment by the
State. The State will review the information presented by Grantee and may make changes to its
determination based on this review. The calculation, determination or payment amount that results from
the State's review shall not be subject to additional dispute under this subsection. No payment subject to a
dispute under this subsection shall be due until after the State has concluded its review, and the State shall
not pay any interest on any amount during the period it is subject to dispute under this subsection.
14. Matching Funds. Grantee shall provide Matching Funds, if required by this Agreement. If permitted
under the terms of the grant and per this Agreement, Grantee may be permitted to provide Matching
Funds prior to or during the course of the project or the match will be an in-kind match. Grantee 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" pursuant to this Agreement, 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.
15. Reimbursement of Grantee Costs. If applicable, the State shall reimburse Grantee's allowable costs,
not exceeding the maximum total amount described in this Agreement for all allowable costs described in
the grant 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, and received approval
from 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. If applicable, the State shall reimburse
Grantee for the properly documented allowable costs related to the Work after review and approval
thereof, subject to the provisions of this Agreement. However, any costs incurred by Grantee prior to the
Effective Date shall not be reimbursed absent specific allowance of pre-award costs. Grantee's costs for
Work performed after the "Service To" date identified on the face of the Small Dollar Grant Award, or
after any phase performance period end date for a respective phase of the Work, shall not be reimbursable.
The State shall only reimburse allowable costs described in this Agreement and shown in the Budget if
those costs are(a) reasonable and necessary to accomplish the Work, and (b) equal to the actual net cost to
Grantee (i.e. the price paid minus any items of value received by Grantee that reduce the costs actually
incurred).
16. Close-Out. Grantee shall close out this Award within 45 days after the "Service To" date identified on
the face of the Small Dollar Grant Award, including any modifications. 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. In accordance with the Agreement, the State may
withhold a percentage of allowable costs until all final documentation has been submitted and accepted by
the State as substantially complete.
17. Assignment. Grantee's rights and obligations under this Agreement may not be transferred or assigned
without the prior, written consent of the State and execution of a new agreement. Any attempt at
assignment or transfer without such consent and new agreement 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.
18. Subcontracts. Grantee shall not enter into any subcontract in connection with its obligations under this
Agreement without the prior, written approval of the State. Grantee shall submit to the State a copy of
each subcontract upon request by the State. All subcontracts entered into by Grantee in connection with
this Agreement shall comply with all applicable federal and state laws and regulations, shall provide that
they are governed by the laws of the State of Colorado, and shall be subject to all provisions of this
Agreement.
19. 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 in accordance with the intent of
the Agreement.
20. 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.
21. Third Party Beneficiaries. Except for the parties' respective successors and assigns, 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.
22. 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.
23. Indemnification. [Not Applicable to Inter-governmental agreements] Grantee shall indemnify, save,
and hold harmless the State, its employees, agents and assignees (the "Indemnified Parties"), against any
and all costs, expenses, claims, damages, liabilities, court awards and other amounts (including attorneys'
fees and related costs) incurred by any of the Indemnified Parties in relation to any act or omission by
Grantee, or its employees, agents, Subcontractors, or assignees in connection with this Agreement. This
shall include, without limitation, any and all costs, expenses, claims, damages, liabilities, court awards
and other amounts incurred by the Indemnified Parties in relation to any claim that any work infringes a
patent, copyright, trademark, trade secret, or any other intellectual property right or any claim for loss or
improper disclosure of any confidential information or personally identifiable information. If Grantee is a
public agency prohibited by applicable law from indemnifying any party,then this section shall not apply.
24. Notice. All notices given under this Agreement shall be in writing, and shall be delivered to the
contacts for each party listed on the face of the Small Dollar Grant Award. Either party may change its
contact or contact information by notice submitted in accordance with this section without a formal
modification to this Agreement.
25. Insurance. Except as otherwise specifically stated in this Agreement or any attachment or exhibit to
this Agreement, Grantee shall obtain and maintain insurance as specified in this section at all times during
the term of the Agreement: (a) workers' compensation insurance as required by state statute, and
employers' liability insurance covering all Grantee employees acting within the course and scope of their
employment, (b) Commercial general liability insurance written on an Insurance Services Office
occurrence form, covering premises operations, fire damage, independent contractors, products and
completed operations, blanket contractual liability, personal injury, and advertising liability with
minimum limits as follows: $1,000,000 each occurrence; $1,000,000 general aggregate; $1,000,000
products and completed operations aggregate; and $50,000 any one fire, and (c) 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. If Grantee will or may have access to any protected
information, then Grantee shall also obtain and maintain insurance covering loss and disclosure of
protected information and claims based on alleged violations of privacy right through improper use and
disclosure of protected information with limits of $1,000,000 each occurrence and $1,000,000 general
aggregate at all times during the term of the Small Dollar Grant Award. Additional insurance may be
required as provided elsewhere in this Agreement or any attachment or exhibit to this Agreement. All
insurance policies required by this Agreement shall be issued by insurance companies with an AM Best
rating of A-VIII or better. If Grantee is a public agency within the meaning of the Colorado Governmental
Immunity Act, then this section shall not apply and Grantee shall instead comply with the Colorado
Governmental Immunity Act.
26. Termination Prior to Grantee Acceptance. If Grantee has not begun performance under this
Agreement,the State may cancel this Agreement by providing written notice to the Grantee.
27. Termination for Cause. If Grantee refuses or fails to timely and properly perform any of its obligations
under this Agreement with such diligence as will ensure its completion within the time specified in this
Agreement, the State may notify Grantee in writing of non-performance and, if not corrected by Grantee
within the time specified in the notice, terminate Grantee's right to proceed with the Agreement or such
part thereof as to which there has been delay or a failure. Grantee shall continue performance of this
Agreement to the extent not terminated. Grantee shall be liable for excess costs incurred by the State in
procuring similar Work and the State may withhold such amounts, as the State deems necessary. If after
rejection, revocation, or other termination of Grantee's right to proceed under the Colorado Uniform
Commercial Code (CUCC) or this clause, the State determines for any reason that Grantee was not in
default or the delay was excusable,the rights and obligations of the State and Grantee shall be the same as
if the notice of termination had been issued pursuant to termination under §28.
28. Termination in Public Interest. The State is entering into this Agreement for the purpose of carrying
out the public interest of the State, as determined by its Governor, General Assembly, Courts, or Federal
Awarding Agency. If this Agreement ceases to further the public interest of the State as determined by its
Governor, General Assembly, Courts, or Federal Awarding Agency, the State, in its sole discretion, may
terminate this Agreement in whole or in part and such termination shall not be deemed to be a breach of
the State's obligations hereunder. This section shall not apply to a termination for cause, which shall be
governed by §27. A determination that this Small Dollar Grant Award should be terminated in the public
interest shall not be equivalent to a State right to terminate for convenience. The State shall give written
notice of termination to Grantee specifying the part of the Agreement terminated and when termination
becomes effective. Upon receipt of notice of termination, Grantee shall not incur further obligations
except as necessary to mitigate costs of performance. The State shall pay the Agreement price or rate for
Work performed and accepted by State prior to the effective date of the notice of termination. The State's
termination liability under this section shall not exceed the total Agreement price.
29. Termination for Funds Availability. 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 Work performed 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 §28.
30. Grantee's Termination Under Federal Requirements. If the Grant Funds include any federal funds,
then Grantee may request termination of this Grant by sending notice to the State,or to the Federal
Awarding Agency with a copy to the State, which includes the reasons for the termination and the
effective date of the termination. If this Grant is terminated in this manner, then Grantee shall return any
advanced payments made for Work that will not be performed prior to the effective date of the
termination.
31. 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, CRS §24-10-101, et seq., 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, CRS §§24-30-1501, et seq. No term or condition of
this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities,
rights, benefits, protections, or other provisions, contained in these statutes.
32. Grant Recipient. Grantee shall perform its duties hereunder as a grant recipient 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 shall not have authorization, express or implied, to bind the State to any
agreement, liability or understanding, except as expressly set forth herein. Grantee and its employees and
agents are not entitled to unemployment insurance or workers compensation benefits through the State
and the State shall not pay for or otherwise provide such coverage for Grantee or any of its agents or
employees. Grantee shall pay when due all applicable employment taxes and income taxes and local head
taxes incurred pursuant to this Agreement. Grantee shall (a) provide and keep in force workers'
compensation and unemployment compensation insurance in the amounts required by law, (b) provide
proof thereof when requested by the State, and (c) be solely responsible for its acts and those of its
employees and agents.
33. Compliance with Law. Grantee shall comply with all applicable federal and State laws, rules, and
regulations in effect or hereafter established, including, without limitation, laws applicable to
discrimination and unfair employment practices.
34. Choice of Law, Jurisdiction and Venue. [Not Applicable to Inter-governmental agreements] Colorado
law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution,
and enforcement of this Agreement. Any provision included or incorporated herein by reference which
conflicts with said laws, rules, and regulations shall be null and void. All suits or actions related to this
Agreement shall be filed and proceedings held in the State of Colorado and exclusive venue shall be in
the City and County of Denver. Any provision incorporated herein by reference which purports to negate
this or any other provision in this Agreement 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 or for any other reason shall not invalidate the
remainder of this Agreement, to the extent capable of execution. Grantee shall exhaust administrative
remedies in CRS §24-109-106, prior to commencing any judicial action against the State regardless of
whether the Colorado Procurement Code applies to this Agreement.
35. Prohibited Terms. Nothing in this Agreement shall be construed as a waiver of any provision of CRS
§24-106-109. Any term included in this Agreement that requires the State to indemnify or hold Grantee
harmless; requires the State to agree to binding arbitration; limits Grantee's liability for damages
resulting
from death, bodily injury, or damage to tangible property; or that conflicts with that statute in any way
shall be void ab initio.
36. Public Contracts for Services. [Not Applicable to offer, issuance, or sale of securities, investment
advisory services, fund management services, sponsored projects, intergovernmental grant agreements, or
information technology services or products and services] Grantee certifies, warrants, and agrees that it
does not knowingly employ or contract with an illegal alien who will perform work under this Agreement
and will confirm the employment eligibility of all employees who are newly hired for employment in the
United States to perform work under this Agreement,through participation in the E-Verify Program or the
Department program established pursuant to CRS §8-17.5-102(5)(c), Grantee shall not knowingly employ
or contract with an illegal alien to perform work under this Agreement or enter into a contract or
agreement 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 shall (a) not use
E-Verify Program or Department program procedures to undertake pre-employment screening of job
applicants during performance of this Agreement, (b) notify Subcontractor and the State within three days
if Grantee has actual knowledge that Subcontractor is employing or contracting with an illegal alien for
work under this Agreement, (c) terminate the subcontract if Subcontractor does not stop employing or
contracting with the illegal alien within three days of receiving notice, and (d) comply with reasonable
requests made in the course of an investigation, undertaken pursuant to CRS §8-17.5-102(5), by the
Colorado Department of Labor and Employment. If Grantee participates in the Department program,
Grantee shall deliver to the State a written, notarized affirmation that Grantee has examined the legal work
status of such employee, and shall comply with all of the other requirements of the Department program.
If Grantee fails to comply with any requirement of this provision or CRS §8-17.5-101 et seq., the State
may terminate this Agreement for breach and, if so terminated, Grantee shall be liable for damages.
37. Public Contracts with Natural Persons. Grantee, if a natural person 18 years of age or older, hereby
swears and affirms under penalty of perjury that the person(a) is a citizen or otherwise lawfully present in
the United States pursuant to federal law, (b) shall comply with the provisions of CRS §24-76.5-101 et
seq., and(c)has produced a form of identification required by CRS §24-76.5-103 prior to the date Grantee
begins Work under terms of the Agreement.
ADDENDUM l:
Additional Terms&Conditions for Information Technology
IF ANY PART OF THE SUBJECT MATTER OF THIS AGREEMENT IS INFORMATION
TECHNOLOGY, AS DEFINED IN CRS § 24-37.5-102 (2), THE FOLLOWING PROVISIONS ALSO
APPLY TO THIS AGREEMENT.
A. Definitions. The following terms shall be construed and interpreted as follows: (a) `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 CRS §24-72-302; (b)
"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, pursuant to CRS §§24-37.5-401 et seq.; (c)"PCI" means payment card
information including any data related to credit card holders' names, credit card numbers, or the other
credit card information as may be protected by state or federal law; (d) "PHI" means any protected health
information, including, without limitation any information whether oral or recorded in any form or
medium that relates to the past, present or future physical or mental condition of an individual; the
provision of health care to an individual; or the past, present or future payment for the provision of health
care to an individual; and that identifies the individual or with respect to which there is a reasonable basis
to believe the information can be used to identify the individual including, without limitation, any
information defined as Individually Identifiable Health Information by the federal Health Insurance
Portability and Accountability Act; (e) "PI1" 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, including, without limitation, all information defined as personally
identifiable information in CRS §24-72-501; (t) "State Confidential Information" means any and all State
Records not subject to disclosure under the Colorado Open Records Act and includes, without limitation,
P11, PHI, PCI, Tax Information, CJI, and State personnel records not subject to disclosure under the
Colorado Open Records Act, (g) "State Fiscal Rules" means those fiscal rules promulgated by the
Colorado State Controller pursuant to CRS §24-30-202(13)(a); (h) "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; (i)
"State Records" means any and all State data, information, and records, regardless of physical form; (j)
"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, including, without limitation all information defined as
federal tax information in Internal Revenue Service Publication 1075; and (k) "Work Product" means the
tangible and intangible results of the delivery of goods and performance of services, 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, but does not include any material that was
developed prior to the Effective Date that is used, without modification, in the performance of the Work.
B. Intellectual Property. Except to the extent specifically provided elsewhere in this Agreement, any State
information, including without limitation pre-existing State software, research, reports, studies, data,
photographs, negatives or other documents, drawings, models, materials; or Work Product prepared by
Grantee in the performance of its obligations under this Agreement shall be the exclusive property of the
State (collectively, "State Materials"). All State Materials shall be delivered to the State by Grantee upon
completion or termination of this Agreement. The State's exclusive rights in any Work Product prepared
by Grantee shall include, but not be limited to, the right to copy, publish, display, transfer, and prepare
derivative works. Grantee shall not use, willingly allow, cause or permit any State Materials to be used for
any purpose other than the performance of Grantee's obligations hereunder without the prior written
consent of the State. The State shall maintain complete and accurate records relating to (a) its use of all
Grantee and third party software licenses and rights to use any Grantee or third party software granted
under this Agreement and its attachments to which the State is a party and (b) all amounts payable to
Grantee pursuant to this Agreement and its attachments and the State's obligations under this Agreement
or any amounts payable to Grantee in relation to this Agreement, which records shall contain sufficient
information to permit Grantee to confirm the State's compliance with the use restrictions and payment
obligations under this Agreement or to any third party use restrictions to which the State is a party.
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, video, and third party materials, delivered by Grantee
under the Agreement, whether incorporated in a deliverable or necessary to use a deliverable
(collectively, "Grantee Property"). Grantee Property shall be licensed to the State as set forth in a State-
approved license agreement (a) entered into as exhibits or attachments to this Agreement, (b) obtained by
the State from the applicable third party Grantee, or (c) in the case of open source software, the license
terms set forth in the applicable open source license agreement. Notwithstanding anything to the contrary
herein, the State shall not be subject to any provision incorporated in any exhibit or attachment attached
hereto, any provision incorporated in any terms and conditions appearing on any website, any provision
incorporated into any click through or online agreements, or any provision incorporated into any other
document or agreement between the parties that(a) requires the State or the State to indemnify Grantee or
any other party, (b) is in violation of State laws, regulations, rules, State Fiscal Rules, policies, or other
State requirements as deemed solely by the State,or(c) is contrary to this Agreement.
C. Information 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. If Grantee will or may have access to any State Confidential
Information or any other protected information, Grantee shall provide for the security of all State
Confidential Information in accordance with all applicable laws, rules, policies, publications, and
guidelines. Grantee shall comply with all Colorado Office of Information Security ("OIS") policies and
procedures which OIS has issued pursuant to CRS §§24-37.5-401 through 406 and 8 CCR §1501-5 and
posted at http://oit.state.co.us/ois, all information security and privacy obligations imposed by any federal,
state, or local statute or regulation, or by any industry standards or guidelines, as applicable based on the
classification of the data relevant to Grantee's performance under this Agreement. Such obligations may
arise from: Health Information Portability and Accountability Act(HIPAA); IRS Publication 1075;
Payment Card Industry Data Security Standard (PCI-DSS); FBI Criminal Justice Information Service
Security Addendum; Centers for Medicare & Medicaid Services (CMS) Minimum Acceptable Risk
Standards for Exchanges; and Electronic Information Exchange Security Requirements and Procedures
for State and Local Agencies Exchanging Electronic Information with The Social Security
Administration. Grantee shall immediately forward any request or demand for State Records to the
State's principal representative.
D. Other Entity Access and Nondisclosure Agreements. Grantee may provide State Records to its agents,
employees, assigns and Subcontractors as necessary to perform the work, but shall restrict access to State
Confidential Information to those agents, employees, assigns, and Subcontractors who require access to
perform their obligations under this Agreement. Grantee shall ensure all such agents, employees, assigns,
and Subcontractors sign agreements containing nondisclosure provisions at least as protective as those in
this Agreement, and that the nondisclosure provisions are in force at all times the agent, employee, assign,
or Subcontractors has access to any State Confidential Information. Grantee shall provide copies of those
signed nondisclosure provisions to the State upon execution of the nondisclosure provisions if requested
by the State.
E. Use, Security, and Retention. Grantee shall use, hold, and maintain State Confidential Information in
compliance with any and all applicable laws and regulations only in facilities located within the United
States, and shall maintain a secure environment that ensures confidentiality of all State Confidential
Information. Grantee shall provide the State with access, subject to Grantee's reasonable security
requirements, for purposes of inspecting 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.
F. 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 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 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 actual costs thereof.
G. Data Protection and Handling. Grantee shall ensure that all State Records and Work Product in the
possession of Grantee or any Subcontractors are protected and handled in accordance with the
requirements of this Agreement at all times. Upon request by the State made any time prior to 60 days
following the termination of this Agreement for any reason, whether or not this Agreement is expiring or
terminating, Grantee shall make available to the State a complete and secure download file of all data that
is encrypted and appropriately authenticated. This download file shall be made available to the State
within 10 Business Days following the State's request, and shall contain, without limitation, all State
Records, Work Product, and any other information belonging to the State. Upon the termination of
Grantee's services under this Agreement, Grantee shall, as directed by the State, return all State Records
provided by the State to Grantee, and the copies thereof, to the State or destroy all such State Records and
certify to the State that it has done so. If legal obligations imposed upon Grantee prevent Grantee from
returning or destroying all or part of the State Records provided by the State, Grantee shall guarantee the
confidentiality of all State Records in Grantee's possession and will not actively process such data. The
State retains the right to use the established operational services to access and retrieve State Records
stored on Grantee's infrastructure at its sole discretion and at any time.
H. Compliance. If applicable, 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.
I. Safeguarding PII. If Grantee or any of its Subcontractors will or may receive PII under this Agreement,
Grantee shall provide for the security of such PII, in a manner and form acceptable to the State, including,
without limitation, all State requirements relating to 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. Grantee
shall be a "Third-Party Service Provider" as defined in CRS §24-73-103(1)(i) and shall maintain security
procedures and practices consistent with CRS §§24-73-101 et seq.
J. Software Piracy Prohibition. The 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.
K. Information Technology. To the extent that Grantee provides physical or logical storage of State
Records; Grantee creates, uses, processes, discloses, transmits, or disposes of State Records; or Grantee is
otherwise given physical or logical access to State Records in order to perform Grantee's obligations
under this Agreement, the following terms shall apply. Grantee shall, and shall cause its Subcontractors,
to: Provide physical and logical protection for all hardware, software, applications, and data that meets or
exceeds industry standards and the requirements of this Agreement; Maintain network, system, and
application security, which includes, but is not limited to, network firewalls, intrusion detection (host and
network), annual security testing,and improvements or enhancements consistent with evolving industry
standards; Comply with State and federal rules and regulations related to overall security, privacy,
confidentiality, integrity, availability, and auditing; Provide that security is not compromised by
unauthorized access to workspaces, computers, networks, software, databases, or other physical or
electronic environments; Promptly report all Incidents, including Incidents that do not result in
unauthorized disclosure or loss of data integrity, to a designated representative of the 01S; Comply with
all rules, policies, procedures, and standards issued by the Governor's Office of Information Technology
(OIT), including project lifecycle methodology and governance, technical standards, documentation, and
other requirements posted at www.oit.state.co.us/about/policies. Grantee shall not allow remote access to
State Records from outside the United States, including access by Grantee's employees or agents,
without the prior express written consent of OIS. Grantee shall communicate any request regarding non-
U.S. access to State Records to the State. The State, acting by and through OIS, shall have sole discretion
to grant or deny any such request.
ATTEST: PUEBLO, A COLORADO MUNICIPAL CORPORATION
4t/A-,cLek 6.1 (1,14.k.A6
City Clerk-Brenda Armijjo Mayor-Nicholas A. radisar
Approved as to form:
City Attorney
AGREEMENT k
THIS AGREEMENT ("Agreement') is made and entered into effective thea L1 day of
February,2020 by and between the City of Pueblo, a Colorado municipal corporation("City")and
Black Hills Colorado Electric, LLC, a Delaware limited liability company ("Black Hills"). The
City and Black Hills may be individually referred to as "Party" or collectively referred to as
"Parties."
WITNESSETH
WHEREAS, Black Hills is an investor owned public utility engaged in the generation,
transmission,distribution and sale of electric energy and electric service within the corporate limits
of the City; and
WHEREAS, City is a Colorado home rule city organized and existing under and by virtue
of Article XX of the Colorado Constitution; and
WHEREAS, the City in cooperation with Black Hills applied for a Charge Ahead
Colorado, State of Colorado Small Dollar Grant funding pursuant to the competitive Electric
Vehicle Supply Equipment Incentives Request for Applications issued by the Colorado Energy
Office to install three level II dual-port EV chargers within the City of Pueblo. Each party will
benefit by the installation of the three level II dual-port EV chargers as contemplated by the grant
agreement;
NOW THEREFOR, in consideration of the foregoing recitals and of the mutual promises
and covenants contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
Article 1. Definitions.
1.1 As used in this Agreement, the following words shall have the following
meanings:
"CEO" mean the State of Colorado acting by and through the Colorado Energy
Office.
"Final Project Report" shall mean all documentation required pursuant to
subsection IV.vii of Exhibit A to the Grant Agreement.
"Grant Agreement" shall mean the grant agreement to be executed between the
City and CEO with respect to procurement and installation of three level II dual-
port EV chargers within the City of Pueblo. A copy of said agreement is attached
hereto, labelled Exhibit 1 and incorporated herein.
"Reimbursements" shall mean payments made to City by CEO pursuant to the
terms of the Grant Agreement.
Article 2. Obligations of the Parties.
2.1 Black Hills will procure and install three level II dual-port EV chargers within the
City of Pueblo and in accordance with all conditions and requirements of the Grant Agreement.
The EV chargers shall be owned by the City and the specific installation sites shall be at City
owned locations that are reviewed and approved by City prior to installation and shall be generally
located at the following locations: (a) City Transit Center located at the Fred Weisbrod Parking
Facility, 227 Court St, Pueblo, CO 81003; (b) City of Pueblo Municipal Campus, 118 South Main
Street, Pueblo, CO 81003; and(c)City of Pueblo Rio Grande Freight Station, 301 W B St. Pueblo,
CO 81003.
2.2 The City shall pay to Black Hills all Reimbursements received by City from CEO
pursuant to the Grant Agreement within 30 days of receipt. Black Hills is aware of and understands
all conditions and requirements imposed under the Grant Agreement to receive such
Reimbursements and shall cooperate with City and provide any and all assistance to City
reasonably necessary to obtain the Reimbursements including but not limited to preparation of the
Final Project Report.
2.3 Payment of the Reimbursements received by City shall be the only compensation
Black Hills shall receive under this Agreement. It is expressly understood and agreed that City
shall not be liable in any manner to Black Hills if any Reimbursements are not received by City
from CEO pursuant to the Grant Agreement.
2.4 Upon receipt of a Final Project Report approved by City, and payment of the
Reimbursements to Black Hills, City shall become the owner of the three level II dual-port EV
chargers. At such time as City becomes the owner, Black Hills has no further obligations pursuant
to this Agreement.
Article 3. Miscellaneous.
3.1 This Agreement may not be assigned by either Party without the prior written
consent of the other Party. Any attempted assignment in violation of this provision shall be void.
3.2 This Agreement constitutes the entire agreement between the Parties relating to the
subject matter hereof. All prior or contemporaneous oral agreements and discussions among the
Parties or their respective agents or representatives relating to the subject matter are merged into
this Agreement. This Agreement may be altered, amended, or revoked only by an instrument in
writing signed by the Parties. Email and all other electronic (including voice) communications
from either Party in connection with this Agreement are for informational purposes only. No such
communication is intended by any Party to constitute either an electronic record or an electronic
signature,or to constitute any agreement by any Party to conduct a transaction by electronic means.
Any such intention or agreement is hereby expressly disclaimed.
3.3 This Agreement shall be governed by the laws of the State of Colorado. Venue for
any action arising under this Agreement or for the enforcement of this Agreement shall be in a
state court with jurisdiction located in Pueblo County, Colorado.
3.4 The failure of either of the Parties to insist upon the strict performance of any
provisions of this Agreement or to exercise any right, power, or remedy upon a breach thereof
shall not constitute a waiver of that or any other provision of this Agreement or limit that Party's
right thereafter to enforce any provision or exercise any right.
3.5 If any portion of this Agreement is held invalid or unenforceable for any reason by
a court of competent jurisdiction as to any Party or as to all Parties, the Parties will immediately
negotiate valid alternative portion(s)that as nearly as possible give effect to any stricken portion(s).
3.6 Nothing in this Agreement is intended, nor should it be construed, to create any
rights, claims, or benefits or assume any liability for or on behalf of any third party, or to waive
any immunities or limitations conferred under federal or state law, including but not limited to the
Colorado Governmental Immunity Act, § 24-10-101 et seq., C.R.S.
3.7 Each person signing this Agreement on behalf of a party represents and warrants
that he or she has the requisite power and authority to enter into, execute, and deliver this
Agreement on behalf of such party and that this Agreement is a valid and legally binding obligation
of such party enforceable against it in accordance with its terms.
IN WITNESS WHEREOF, the City and Black Hills have executed this Agreement as of
the date first above written.
ATTEST: BI,71hLS nOLORADO ELECTRIC, LLC,
V ? — 33RC
[Title] [Title]
ATTEST: PUEBLO, A MUNICIPAL CORPORATION,
,j)k-lbh d1/4/CL aAAAAAT _2(64ea//egeeeigtio.;
City Clerk Mayor
Approved as to form:
>' A - fl< o r✓,Q2 Ic
City Attorney