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ORDINANCE NO. 10255
AN ORDINANCE APPROVING A GRANT AWARD AGREEMENT
BETWEEN PUEBLO, A MUNICIPAL CORPORATION, AND
STATE OF COLORADO, ACTING BY AND THROUGH THE
COLORADO DEPARTMENT OF NATURAL RESOURCES, AND
AUTHORIZING THE MAYOR TO EXECUTE SAME
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO that:
SECTION 1.
The Grant Award Agreement (“Agreement”) between and Pueblo, a municipal corporation,
and the State of Colorado, acting by and through the Colorado Department of Natural Resources,
attached hereto, having been approved as to form by the City Attorney, is hereby approved.
SECTION 2.
The Mayor is hereby authorized to execute said Agreement for and on behalf of the City
and the City Clerk is authorized to affix the seal of the City thereto and attest same.
SECTION 3.
The officers and staff of the City are authorized to perform any and all acts consistent with
this Ordinance and the attached Agreement to implement the policies and procedures described
therein.
SECTION 4.
This Ordinance shall become effective on the date of final action by the Mayor and City
Council.
Action by City Council:
Introduced and initial adoption of Ordinance by City Council on August 8, 2022 .
Final adoption of Ordinance by City Council on August 22, 2022 .
President of City Council
Action by the Mayor:
☒ Approved on August 24, 2022 .
□ 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-4
BACKGROUND PAPER FOR PROPOSED
ORDINANCE
.
COUNCIL MEETING DATE: August 8, 2022
TO: President Heather Graham and Members of City Council
CC: Nicholas A. Gradisar, Mayor
VIA: Marisa Stoller, City Clerk
FROM: Barb Huber, Fire Chief
SUBJECT: AN ORDINANCE APPROVING A GRANT AWARD AGREEMENT BETWEEN
PUEBLO, A MUNICIPAL CORPORATION, AND STATE OF COLORADO,
ACTING BY AND THROUGH THE COLORADO DEPARTMENT OF NATURAL
RESOURCES, AND AUTHORIZING THE MAYOR TO EXECUTE SAME
SUMMARY:
A grant providing a Department of Corrections crew to reduce wildland risk by cutting vegetation
for six weeks within the City of Pueblo.
PREVIOUS COUNCIL ACTION:
None.
BACKGROUND:
Approving and accepting a grant awarded to the City of Pueblo in an effort to reduce wildfire risk
within the city limits. This grant will allow for wildland fire mitigation to take place along the
Fountain and the Arkansas rivers.
FINANCIAL IMPLICATIONS:
None.
BOARD/COMMISSION RECOMMENDATION:
None.
STAKEHOLDER PROCESS:
None.
ALTERNATIVES:
None.
RECOMMENDATION:
Approval of the Ordinance.
DocuSign Envelope ID:DFA0026C-153E-48EE-96B7-8DA5C7FDBF42
GRANT AWARD AGREEMENT
SUMMARY OF GRANT AWARD TERMS AND CONDITIONS
State Agency Agreement Number
Department of Natural Resources CMS 179019
1313 Sherman Street
Denver,Colorado 80203
Grantee Agreement Performance Beginning Date
City of Pueblo The Effective Date
I City Hall PI. Initial Agreement Expiration Date
Pueblo,CO 81003 12/31/2023
State In-Kind Contribution Agreement CMS
CMS 179019
State In-Kind Contribution Agreement CORE ID
PAAA CTGGI 2023*2456
Agreement Amount Fund Expenditure/Crew Time End Date
12/31/2023 or upon Project Completion,whichever occurs
earlier
Crew Time Grant(Weeks) Agreement Authority
06 This grant is authorized by section 24-33-117,C.R.S..
Agreement Purpose
The purpose of this Grant Agreement is to provide a grant of either cash or service in the form of crew time to implement
wildfire mitigation projects or complete wildfire mitigation workforce training
Exhibits and Order of Precedence
The following Exhibits and attachments are included with this Agreement:
1. Exhibit A, Statement of Work.
In the event of a conflict or inconsistency between this Agreement and any Exhibit or attachment,such conflict or
inconsistency shall be resolved by reference to the documents in the following order of priority:
1. The provisions of the main body of this Agreement.
2. Exhibit A, Statement of Work
Principal Representatives
For the State: For Grantee:
Angela Boag Chris Harper
Department of Natural Resources City of Pueblo Fire Department
1313 Sherman Street I City Hall PI.
Suite 719
Denver,CO 80203 Pueblo, CO 81003
angela.boag(a,state.co.us gharner a,pueblo.us
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3. SIGNATURE PAGE
THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT
Each person signing this Agreement represents and warrants that the signer is duly authorized to
execute this Agreement and to bind the Party authorizing such signature
Grantee STATE OF COLORADO
City of Pueblo Jared S. Polis,Governor
Department of Natural Resources
e—Docusigned by: Dan Gibbs
i\-4(144.S a )a�ta �Docu3lgned,Qby,:
Signature. —211
4BB77C1ACSF448_ ' 0.1A.I�t.� IIDotI�
Signature: s81Bs€26F6B4.4-D_.
Nicholas Gradisar
Printed Name: Angela Boag
Printed Name:
Title: Mayor
Title: Assi stant Di rector
September 27, 2022 5:07 PM MDT
Date: September 26, 2022 12:29 PM MDT
Date:
In accordance with §24-30-202,C.R.S.,this Agreement is not valid until signed and dated below by the State Controller or an
authorized delegate.
STATE CONTROLLER
Robert Jaros,CPA,MBA,JD
e —DocuSigned by:
Signature:
'-70E3DF1B09EE4E8_.
Printed Name: Becca Kreski
Title: DNR Deputy Procurement Director
Effective Date eptember 28, 2022 I 10:46 AM MDT
4.
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TABLE OF CONTENTS
SUMMARY OF GRANT AWARD TERMS AND CONDITIONS 1
SIGNATURE PAGE 2
I. GRANT 3
2. TERM 3
3. DEFINITIONS
4. STATEMENT OF WORK 6
5. PAYMENTS TO GRANTEE 6
6. REPORTING AND NOTIFICATION 8
7. GRANTEE RECORDS 8
8. CONFIDENTIAL INFORMATION-STATE RECORDS
9. CONFLICTS OF INTEREST 10
10. INSURANCE 10
11. BREACH OF AGREEMENT 10
12. REMEDIES 10
13. DISPUTE RESOLUTION .12
14. NOTICES AND REPRESENTATIVES 13
15. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION 13
16. STATEWIDE CONTRACT MANAGEMENT SYSTEM 14
17. GENERAL PROVISIONS 14
1. GRANT
As of the Grant Issuance Date, the State Agency shown on the first page of this Grant Award
Letter (the "State") hereby obligates and awards to Grantee shown on the first page of this Grant
Award Letter (the "Grantee") an award of Grant Funds in the amounts shown on the first page of
this Grant Award Letter. By accepting the Grant Funds provided under this Grant Award Letter,
Grantee agrees to comply with the terms and conditions of this Grant Award Letter and
requirements and provisions of all Exhibits to this Grant Award Letter.
2. TERM
A. Initial Grant Term and Extension
The Parties' respective performances under this Grant Award Letter shall commence on the
Grant Issuance Date and shall terminate on the Grant Expiration Date unless sooner
terminated or further extended in accordance with the terms of this Grant Award Letter.
Upon request of Grantee, the State may, in its sole discretion, extend the term of this Grant
Award Letter by providing Grantee with an updated Grant Award Letter showing the new
Grant Expiration Date.
B. Early Termination in the Public Interest
The State is entering into this Grant Award Letter to serve the public interest of the State of
Colorado as determined by its Governor, General Assembly, or Courts. If this Grant Award
Letter ceases to further the public interest of the State or if State, or other funds used for
this Grant Award Letter are not appropriated, or otherwise become unavailable to fund this
Grant Award Letter, the State, in its discretion, may terminate this Grant Award Letter in
whole or in part by providing written notice to Grantee that includes, to the extent
practicable, the public interest justification for the termination. If the State terminates this
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Grant Award Letter in the public interest, the State shall pay Grantee an amount equal to the
percentage of the total reimbursement payable under this Grant Award Letter that
corresponds to the percentage of Work satisfactorily completed, as determined by the State,
less payments previously made. Additionally, the State, in its discretion, may reimburse
Grantee for a portion of actual, out-of-pocket expenses not otherwise reimbursed under this
Grant Award Letter that are incurred by Grantee and are directly attributable to the
uncompleted portion of Grantee's obligations, provided that the sum of any and all
reimbursements shall not exceed the maximum amount payable to Grantee hereunder. If
this Agreement is a Crew Time grant and the State terminates this Agreement in the public
interest, the State shall provide crew time for the remainder of the Crew Week in the week
that termination notice is given pursuant to this section 2.B. Grantee will not be entitled to
any additional crew time provided by the State. Crew Time grants shall have no cash value
to Grantees.
3. DEFINITIONS
The following terms shall be construed and interpreted as follows:
A. "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.
B. '`CORA" means the Colorado Open Records Act, §x§'24-72-200.1 et. seq., C.R.S.
C. "Crew Week" means the time increments for Crew Time grants. A Crew Week for grants
of time from a conservation corps constitutes five (5) consecutive days. A Crew Week for
grants of time from a SWIFT crew constitutes four(4) consecutive days.
D. "Grant Award Letter" means this letter which offers Grant Funds to Grantee, including all
attached Exhibits, all documents incorporated by reference, all referenced statutes, rules and
cited authorities, and any future updates thereto.
E. "Grant Funds" means the funds that have been appropriated, designated, encumbered, or
otherwise made available for payment by the State under this Grant Award Letter.
F. "Grant Expiration Date" means the Grant Expiration Date shown on the first page of this
Grant Award Letter.
G. "Grant Issuance Date" means the Grant Issuance Date shown on the first page of this
Grant Award Letter".
H. "Exhibits" exhibits and attachments included with this Grant as shown on the first page of
this Grant
I. "Extension Term" means the period of time by which the Grant Expiration Date is
extended by the State through delivery of an updated Grant Award Letter
J. "Goods" means any movable material acquired, produced, or delivered by Grantee as set
forth in this Grant Award Letter and shall include any movable material acquired, produced,
or delivered by Grantee in connection with the Services.
K. "Incident" means any accidental or deliberate event that results in or constitutes an
imminent threat of the unauthorized access or disclosure of State Confidential Information
or of the unauthorized modification, disruption, or destruction of any State Records.
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L. "Initial Term" means the time period between the Grant Issuance Date and the Grant
Expiration Date.
M. "Matching Funds" means the funds provided Grantee as a match required to receive the
Grant Funds.
N. "Party" means the State or Grantee, and "Parties" means both the State and Grantee.
O. '`PII" means personally identifiable information including, without limitation, any
information maintained by the State about an individual that can be used to distinguish or
trace an individual's identity, such as name, social security number, date and place of birth,
mother's maiden name, or biometric records; and any other information that is linked or
linkable to an individual, such as medical, educational, financial, and employment
information. PII includes, but is not limited to, all information defined as personally
P. "Services" means the services to be performed by Grantee as set forth in this Grant Award
Letter, and shall include any services to be rendered by Grantee in connection with the
Goods.
Q. "State Confidential Information" means any and all State Records not subject to
disclosure under CORA. State Confidential Information shall include, but is not limited to,
PII, and State personnel records not subject to disclosure under CORA. State Confidential
Information shall not include information or data concerning individuals that is not deemed
confidential but nevertheless belongs to the State, which has been communicated,
furnished, or disclosed by the State to Grantee which (i) is subject to disclosure pursuant to
CORA; (ii) is already known to Grantee without restrictions at the time of its disclosure to
Grantee; (iii) is or subsequently becomes publicly available without breach of any
obligation owed by Grantee to the State; (iv) is disclosed to Grantee, without confidentiality
obligations, by a third party who has the right to disclose such information; or (v) was
independently developed without reliance on any State Confidential Information.
R. "State Fiscal Rules" means the fiscal rules promulgated by the Colorado State Controller
pursuant to §24-30-202(13)(a), C.R.S.
S. "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.
T. ``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.
U. "SubGrantee" means third-parties, if any, engaged by Grantee to aid in performance of
V. "Work" means the delivery of the Goods and performance of the Services described in this
Grant Award Letter.
W. "Work Product" means the tangible and intangible results of the Work, whether finished or
unfinished, including drafts. Work Product includes, but is not limited to, documents, text,
software (including source code), research, reports, proposals, specifications, plans, notes,
studies, data, images, photographs, negatives, pictures, drawings, designs, models, surveys,
maps, materials, ideas, concepts, know-how, and any other results of the Work. "Work
Product" does not include any material that was developed prior to the Grant Issuance Date
that is used, without modification, in the performance of the Work.
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Any other term used in this Grant Award Letter that is defined in an Exhibit shall be construed
and interpreted as defined in that Exhibit.
4. STATEMENT OF WORK
Grantee shall complete the Work as described in this Grant Award Letter and in accordance with
the provisions of Exhibit A. The State shall have no liability to compensate or reimburse Grantee
for the delivery of any goods or the performance of any services that are not specifically set forth
in this Grant Award Letter. The State does not guarantee that crew time awards will be sufficient
to complete the entire statement of work.
5. 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 Grant that exceeds the Grant Amount for
each State Fiscal Year shown on the first page of this Grant Award Letter. 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. The State
shall not be liable to pay or reimburse Grantee for any Work performed or expense incurred
before the Grant Issuance Date or after the Grant Expiration Date. Crew Time grantees
receive no cash value equivalent for crew time awards.
B. Crew Time Awards
Grantees receiving Crew Time grant awards are not entitled to any cash payment
equivalents of the grant award. The State will pay the Conservation Youth Corps
Association (CYCA) or the Colorado Department of Corrections, State Wildland Inmate
Fire Teams (SWIFT) for Crew Weeks dedicated to the project described in Exhibit A in
accordance with the terms of the respective agreement between the State and CYCA and
SWIFT. The State will provide the Crew Weeks provided in the Cover Sheet of this
Agreement to Grantee to be scheduled in accordance with Exhibit A and in coordination
with Grantee and CYCA or SWIFT.
i. Available Crew Time
This Agreement confirms that CYCA or SWIFT has agreed that the Crew Weeks
granted are available for the Work described in Exhibit A. Any enlargement of Crew
Weeks that become necessary during implementation of the Work described in Exhibit
A must be approved by amendment of this Agreement in writing in advance of any
additional Crew Weeks.
ii. Emergency Crew Duties
SWIFT crews have duties to provide firefighting services in the event of a wildfire. If
a wildfire occurs during a grantee Crew Week will supersede the State's obligation to
provide the Crew Weeks in consecutive time. Any Crew Week interrupted due to
wildfire emergencies will be completed by the SWIFT crew at the earliest possible
date following completion of the SWIFT crew's firefighting duties. If a SWIFT crew's
firefighting duties result in an inability of Grantee to complete the Work by the Fund
Expenditure/Crew Time End Date, the State may extend the Term of this Agreement
by amendment or may terminate this Agreement in the public interest as provided in
§2.B.
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iii. Crew Time - Failure to Perform
Timing and availability of Crew Weeks will be scheduled after Grantee and the State
enter into this Agreement in accordance with Exhibit A. In the event that a
conservation crew or SWIFT crew are unable to perform or performance of a Crew
Week is interrupted due to unforeseen circumstances, including but not limited to
crew illnesses, the Crew Week(s) will be completed by the crew at the earliest
possible date following performance interruption. If the crew performance
interruption results in an inability of Grantee to complete the Work by the Fund
Expenditure/Crew Time End Date, the State may extend the Term of this Agreement
by amendment or may terminate this Agreement in the public interest as provided in
§2.B. Nothing in this Agreement guarantees that the crew time award if fully satisfied
will complete all Work described in Exhibit A. This Agreement provides crew for an
allotted period of time, not the guarantee of a completed Work.
iv. Available Funds - Contingency - Termination
The State is prohibited by law from making commitments beyond the term of the
current State Fiscal Year. Payment 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 provide Crew Time 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 Crew Time that was 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.B.
C. Close-Out.
Grantee shall close out this Grant within 30 days upon Project Completion or after the
Grant Expiration Date, whichever occurs first. To complete close out, Grantee shall submit
to the State all deliverables (including documentation) as defined in this Grant Award Letter
and Grantee's final reimbursement request or invoice. The State will withhold 5% of
allowable costs until all final documentation has been submitted and accepted by the State
as substantially complete.
6. REPORTING AND NOTIFICATION
A. Performance and Final Status
Grantee shall submit all financial, performance and other reports to the State no later than
the end of the close out described in §5.C, containing an evaluation and review of Grantee's
performance and the final status of Grantee's obligations hereunder.
B. 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. The State may impose
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any penalties for noncompliance which may include, without limitation, suspension or
debarment.
7. GRANTEE RECORDS
A. Maintenance and Inspection
Grantee shall make, keep, and maintain, all records, documents, communications, notes and
other written materials, electronic media files, and communications, pertaining in any
manner to this Grant for a period of three years following the completion of the close out of
this Grant. Grantee shall permit the State to audit, inspect, examine, excerpt, copy and
transcribe all such records during normal business hours at Grantee's office or place of
business, unless the State determines that an audit or inspection is required without notice at
a different time to protect the interests of the State.
B. Monitoring
The State will monitor Grantee's performance of its obligations under this Grant Award
Letter using procedures as determined by the State. The State shall have the right, in its sole
discretion, to change its monitoring procedures and requirements at any time during the
term of this Agreement. The State shall monitor Grantee's performance in a manner that
does not unduly interfere with Grantee's performance of the Work.
C. Final Audit Report
Grantee shall promptly submit to the State a copy of any final audit report of an audit
performed on Grantee's records that relates to or affects this Grant or the Work, whether the
audit is conducted by Grantee or a third party.
8. CONFIDENTIAL INFORMATION-STATE RECORDS
A. Confidentiality
Grantee shall hold and maintain, and cause all SubGrantees to hold and maintain, any and
all State Records that the State provides or makes available to Grantee for the sole and
exclusive benefit of the State, unless those State Records are otherwise publically available
at the time of disclosure or are subject to disclosure by Grantee under CORA. Grantee shall
not, without prior written approval of the State, use for Grantee's own benefit, publish,
copy, or otherwise disclose to any third party, or permit the use by any third party for its
benefit or to the detriment of the State, any State Records, except as otherwise stated in this
Grant Award Letter. 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 SubGrantees as
necessary to perform the Work, but shall restrict access to State Confidential Information to
those agents, employees, assigns and SubGrantees who require access to perform their
obligations under this Grant Award Letter. Grantee shall ensure all such agents. employees,
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assigns, and SubGrantees sign nondisclosure agreements with provisions at least as
protective as those in this Grant, and that the nondisclosure agreements are in force at all
times the agent, employee, assign or SubGrantee has access to any State Confidential
Information. Grantee shall provide copies of those signed nondisclosure restrictions to the
State upon request.
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 Grant, 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. 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.
E. Safeguarding P11
If Grantee or any of its SubGrantees will or may receive P11 under this Agreement, Grantee
shall provide for the security of such PII, in a manner and form acceptable to the State,
including, without limitation, State non-disclosure requirements, use of appropriate
technology, security practices, computer access security, data access security, data storage
encryption, data transmission encryption, security inspections, and audits. Grantee shall be
a "Third-Party Service Provider" as defined in §24-73-103(1)(i), C.R.S. and shall maintain
security procedures and practices consistent with §§24-73-101 et seq., C.R.S.
9. CONFLICTS OF INTEREST
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 Grant. Grantee
acknowledges that, with respect to this Grant, even the appearance of a conflict of interest shall
be harmful to the State's interests and 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 Grant. 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.
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10. INSURANCE
Grantee shall maintain at all times during the term of this Grant such liability insurance, by
commercial policy or self-insurance, as is necessary to meet its liabilities under the Colorado
Governmental Immunity Act, §24-10-10I, ei seq., C.R.S. (the "GIA"). Grantee shall ensure that
any SubGrantees maintain all insurance customary for the completion of the Work done by that
SubGrantee and as required by the State or the GIA.
11. BREACH OF AGREEMENT
In the event of a Breach of Agreement, the aggrieved Party shall give written notice of breach to
the other Party. If the notified Party does not cure the Breach of Agreement, at its sole expense,
within 30 days after the delivery of written notice, the Party may exercise any of the remedies as
described in §12 for that Party. Notwithstanding any provision of this Agreement to the contrary,
the State, in its discretion, need not provide notice or a cure period and may immediately
terminate this Agreement in whole or in part or institute any other remedy in this Agreement in
order to protect the public interest of the State; or if Grantee is debarred or suspended under
§24-109-I 05, C.R.S., the State, in its discretion, need not provide notice or cure period and may
terminate this Agreement in whole or in part or institute any other remedy in this Agreement as
of the date that the debarment or suspension takes effect. Failure of a crew to complete the Work
described in Exhibit A in the crew time award allotted or as a result of termination in the public
interest shall not constitute breach of this Agreement.
12. REMEDIES
A. State's Remedies
If Grantee is in breach under any provision of this Agreement and fails to cure such breach,
the State, following the notice and cure period set forth in §11, shall have all of the
remedies listed in this section in addition to all other remedies set forth in this Agreement or
at law. The State may exercise any or all of the remedies available to it, in its discretion,
concurrently or consecutively.
i. Termination for Breach
In the event of Grantee's uncured breach, the State may terminate this entire
Agreement or any part of this Agreement. Grantee shall continue performance of this
Agreement to the extent not terminated, if any
a. Obligations and Rights
To the extent specified in any termination notice, Grantee shall not incur further
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 canceled
by the termination notice, and may incur obligations as necessary to do so within
this Agreement's terms. At the request of the State, Grantee shall assign to the
State all of Grantee's rights, title, and interest in and to such terminated orders or
subcontracts. Upon termination, Grantee shall take timely, reasonable and
necessary action to protect and preserve property in the possession of Grantee
but in which the State has an interest. At the State's request, Grantee shall return
materials owned by the State in Grantee's possession at the time of any
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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. lf, 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.B.
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.
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
SubGrantees 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
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e. Intellectual Property
If any Work infringes, or if the State in its sole discretion determines that any
Work is likely to infringe, a patent, copyright, trademark, trade secret or other
intellectual property right, Grantee shall, as approved by the State (i) secure that
right to use such Work for the State and Grantee; (ii) replace the Work with
noninfringing Work or modify the Work so that it becomes 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 §11 and the dispute resolution process in
§13 shall have all remedies available at law and equity. Failure of a crew to complete the
entire scope of Work described in Exhibit A in the crew time allotted by this Agreement
shall not constitute a breach of this Agreement by the State.
13. DISPUTE RESOLUTION
A. Initial Resolution
Except as herein specifically provided otherwise, disputes concerning the performance of
this Agreement which cannot be resolved by the designated Agreement representatives
shall be referred in writing to a senior departmental management staff member designated
by the State and a senior manager designated by Grantee for resolution.
B. Resolution of Controversies
If the initial resolution described in §13.A fails to resolve the dispute within 10 Business
Days, Grantee shall submit any alleged breach of this Agreement by the State to the
Procurement Official of the State Agency named on the Cover Page of this Agreement as
described in §24-102-202(3), C.R.S. for resolution in accordance with the provisions of
§§24-I06-109, and 24-109-101.1 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, under the Resolution Statutes before
Grantee pursues any further action as permitted by such statutes. Except as otherwise stated
in this Section, all requirements of the Resolution Statutes shall apply including, without
limitation, time limitations.
14. NOTICES AND REPRESENTATIVES
Each individual identified as a Principal Representative on the Cover Page for this Agreement
shall be the principal representative of the designating Party. All notices required or permitted to
be given under this Agreement shall be in writing, and shall be delivered (A) by hand with
receipt required, (B) by certified or registered mail to such Party's principal representative at the
address set forth below or (C) as an email with read receipt requested to the principal
representative at the email address, if any, set forth on the Cover Page for this Agreement. If a
Party delivers a notice to another through email and the email is undeliverable, then, unless the
Party has been provided with an alternate email contact, the Party delivering the notice shall
deliver the notice by hand with receipt required or by certified or registered mail to such Party's
principal representative at the address set forth on the Cover Page for this Agreement. Either
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Party may change its principal representative or principal representative contact information, or
may designate specific other individuals to receive certain types of notices in addition to or in
lieu of a principal representative by notice submitted in accordance with this section without a
formal amendment to this Agreement
1.5. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION
A. Work Product
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. Whether or not Grantee is under
Agreement 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. To the extent that Work Product would fall under the definition
of"works made for hire" under 17 U.S.C.S. §10I, the Parties intend the Work Product to be
a work made for hire
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 the 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 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 this Agreement or
a State approved license agreement: (i) entered into as exhibits to this Agreement; (ii)
obtained by the State from the applicable third-party vendor; or (iii) in the case of open
source software, the license terms set forth in the applicable open source license agreement
16. 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 any time thereafter, this §16 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 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.
17. GENERAL PROVISIONS
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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 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 such 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
C. Binding Effect
Except as otherwise provided in §17.A, all provisions of this Agreement, including the
benefits and burdens, shall extend to and be binding upon the Parties' respective successors
and assigns.
D. Authority
Each Party represents and warrants to the other that the execution and delivery of this
Agreement and the performance of such Party's obligations have been duly authorized
E. Captions and References
The captions and headings in this Agreement are for convenience of reference only, and
shall not be used to interpret, define, or limit its provisions. All references in this
Agreement to sections (whether spelled out or using the § symbol), subsections, exhibits or
other attachments, are references to sections, subsections, exhibits or other attachments
contained herein or incorporated as a part hereof, unless otherwise noted.
F. Counterparts
This Agreement may be executed in multiple, identical, original counterparts, each of
which shall be deemed to be an original, but all of which, taken together, shall constitute
one and the same agreement.
G. Entire Understanding
This Agreement represents the complete integration of all understandings between the
Parties related to the Work, and all prior representations and understandings related to the
Work, oral or written, are merged into this Agreement. Prior or contemporaneous additions,
deletions, or other changes to this Agreement shall not have any force or effect whatsoever,
unless embodied herein
H. Digital Signatures
If any signatory signs this agreement using a digital signature in accordance with the
Colorado State Controller Agreement, Grant and Purchase Order Policies regarding the use
of digital signatures issued under the State Fiscal Rules, then any agreement or consent to
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use digital signatures within the electronic system through which that signatory signed shall
be incorporated into this Agreement by reference
I. Modifications
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. 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.
L. 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 this Agreement
and shall be enforceable by the other Party
M. 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
N. Third Party Beneficiaries
Except for the Parties' respective successors and assigns described in §17.A, this
Agreement does not and is not intended to confer any rights or remedies upon any person or
entity other than the Parties. Enforcement of this Agreement and all rights and obligations
hereunder are reserved solely to the Parties. Any services or benefits which third parties
receive as a result of this Agreement are incidental to this Agreement, and do not create any
rights for such third parties
O. Waiver
A Party's failure or delay in exercising any right, power, or privilege under this Agreement,
whether explicit or by lack of enforcement, shall not operate as a waiver, nor shall any
single or partial exercise of any right, power, or privilege preclude any other or further
exercise of such right, power, or privilege
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P. CORA Disclosure
To the extent not prohibited by federal law, this Agreement and the performance measures
and standards required under X24-I06-107, C.R.S., if any, are subject to public release
through the CORA.
Q. Standard Manner of Performance
Grantee shall perform its obligations under this Agreement in accordance with the highest
standards of care, skill and diligence in Grantee's industry, trade, or profession
R. 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 SubGrantees secure and maintain at all times during the term
of their employment, agency or subcontract, all license, certifications, permits and other
authorizations required to perform their obligations in relation to this Agreement.
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Exhibit A
GRANTEE and FISCAL AGENT (if different)
City of Pueblo Fire Department
PRIMARY CONTACT
Chris Hamer
ADDRESS
1 City Hall P1. Pueblo, CO 81003
PHONE
(719)553-2830
EMAIL
gharner@pueblo.us
PROJECT NAME
City of Pueblo Mitigation
GRANT AMOUNT
Award is for six weeks of a DOC-SWIFT crew
FUND EXPENDITURE/CREW TIME END DATE
12/31/2023 or upon completion of the crew's contracted days or weeks of service.
INTRODUCTION AND BACKGROUND
The Colorado Strategic Wildfire Action Program (COSWAP) Workforce Development grant
was created to address wildfire mitigation needs through the engagement of workforce
development organizations including the Colorado Youth Corps Association and Department of
Corrections SWIFT crews.
OBJECTIVES
1. Thin the brushy type fuels to reduce flame spread through these fuels.
2. Create a defensible space between the drainage and the occupied properties adjacent
to the space.
3. Remove dead fuels.
SCOPE OF WORK
Task#1 - Removal of brush type fuels:
Description of Task and Methods: Remove brush type fuels from the treatment areas by cutting
and chipping material. Thinning of ladder fuels to any live standing trees in the treatment area
and chipping.
Deliverable: Reduce the fuel loads in the treatment area.
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Task#2 -Removal of biomass fuels:
Description of Task and methods: Through hand fed chipping piles of fuel will be created. These
chips should be spread throughout the treatment area to a depth less than 4 inches.
Task #3 -Thinning of standing fuels:
Description of Task and Methods: Removal of ladder fuels to a level of 6 feet above ground.
PAYMENTS
No payments will be made to the grantee. Grantee and the workforce development partner will
work together to schedule the mitigation work and COSWAP will be invoiced for the mitigation
work directly.
RESPONSIBILITIES
The Grantee will provide the following:
I) Technical project assistance as required.
2) Maps and camping locations if needed.
3) Specialty work tools and project supplies
5) Complete project site evaluations for analysis of the work completed.
6) Access to all work sites for DNR, the Work Crew Supplier, and the Work Crews.
7) Other pertinent technical support.