Loading...
HomeMy WebLinkAbout07994ORDINANCE NO. 7994 AN ORDINANCE APPROVING AND ACCEPTING A GRANT AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION, AND THE STATE OF COLORADO DEPARTMENT OF TRANSPORTATION, AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE THE SAME, AND BUDGETING AND APPROPRIATING GRANT FUNDS FOR THE ACQUISITION OF THREE ACCESSIBLE TRANSIT COACHES WHEREAS, City of Pueblo has received a grant from the State of Colorado, Department of Transportation, to fund the procurement of three (3) transit vehicles, subject to the execution of a grant agreement; now Therefore BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO. that: SECTION 1. The Grant Agreement between the City of Pueblo, a Municipal Corporation and the State of Colorado, Department of Transportation, making available $780,000 State funds for the purpose of purchasing three (3) 35 -40 foot accessible transit coaches for replacement, the "Project', a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. SECTION 2. The President of City Council is hereby authorized to execute said Grant Agreement on behalf of Pueblo, a Municipal Corporation, and the City Clerk shall affix the Seal of the City to the Grant Agreement and attest the same. SECTION 3. Grant funds in the amount of $780,000 are budgeted and appropriated for the Project. City funds in the amount of $195,000 have been appropriated for the Project. SECTION 4 The City of Pueblo is authorized to accept an assignment of a procurement option of three (3) accessible transit coaches from the Akron, OH Contract under its contract with Gillig Corporation. The City Purchasing Agent is authorized to issue a purchase order to Gillig Corporation in the amount of $975,000 for the purchase of three (3) accessible transit coaches. A77TSTDD SY: CITY CLERK INTRODUCED: March 23, 2009 BY: Judy Weaver COUNCILPERSON APPR D' } �- PRESIDENTaf Cfty Council PASSED AND APPROVED: April 13, 2009 L) 4 Background Paper for Proposed ORDINANCE AGENDA ITEM # 35 DATE: March 23, 2009 DEPARTMENT: PUEBLO TRANSIT BRENDA BROYLES TRANSIT SUPERINTENDENT TITLE AN ORDINANCE APPROVING AND ACCEPTING A GRANT AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION, AND THE STATE OF COLORADO DEPARTMENT OF TRANSPORTATION, AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE THE SAME, AND BUDGETING AND APPROPRIATING GRANT FUNDS FOR THE ACQUISITION OF THREE ACCESSIBLE TRANSIT COACHES 61.11] o Should the City Council enter into a Grant Agreement with the State of Colorado Department of Transportation to accept certain unencumbered State funds from Senate Bill 97 -001 for the purpose of purchasing three ADA buses for the provision of public transportation services. RECOMMENDATION Approval of Ordinance - file] :(c3:loll] 0 f The State of Colorado, State Department of Transportation, Division of Transportation Development, has obtained certain unencumbered State funds from the Senate Bill 97 -001 strategic transportation program for the purchase of capital rolling stock for the provision of public transportation. The City of Pueblo has appropriated a total of $195,000 into the Pueblo Transit 2009 budget for the purchase of three ADA buses. FINANCIAL IMPACT The total project cost is $975,000. The state match at 80% is $780,000 and the appropriated City match at 20% is $195,000. CLIN: 09 -HTD -00051 PO #:291000601 GRAN A THIS GRANT AGREEMENT made this _ O Pay of •(`(1 20_Q� by and between the State of Colorado for the use and benefit of the Colorado Departmen of Transportation hereinafter referred to as the State and the City of Pueblo, Colorado, CDOT Vendor #: 2000036, hereinafter referred to as the "Contractor" or the "Local Agency." RECITALS A. WHEREAS, authority exists in the Law and Funds have been budgeted, appropriated and otherwise made available and a sufficient unencumbered balance thereof remains available for payment in G/L Account 4510000010, Company Code 1000, CO Area 1000, WBS Element 16972.15.03, Fund 400, Functional Area 1510, Funds Center DT510 -010, for a total available funds of $975,000. The maximum amount payable by the Department shall not exceed $780,000, which is 80% of the total available funds. The local match will be $195,000 which is 20% of the total available funds. B. Required approval, clearance and coordination have been accomplished from and with appropriate agencies. C. Pursuant to 43- 4- 206(Vll)(2)(a)(1) CRS, the State has received approval and funding for implementation of Strategic Transit Project Funds from the Colorado Legislature and/or its Joint Budget Committee. D. By Resolution Number TC -1401, the Transportation Commission of Colorado established a Task Force to recommend to the Commission a process for project selection and prioritization. E. The State has solicited and reviewed project Applications in accordance with such program criteria and determined which agencies or entities' projects would be most appropriate for funding. F. The Local Agency has submitted a funding Application to carry out a strategic transit project, hereinafter referred to as the Project. G. The Task Force recommended to the Commission a list of strategic transit projects for approval and by Resolution Number TC -1455, the Commission approved the list. H. The State has funds available and will provide 80% of the funding and the Local Agency will provide the 20% local snatch for the work. 1. The Local Agency shall comply with all state and other applicable requirements, including the State's general administration of the project through this Agreement, in order to obtain state funds for the project. 1 of 28 CLIN: 09 -HTD -00051 PO #:291000601 J. The Local Agency shall perform the Work described in the Scope of Work and Conditions attached hereto as Exhibit A. K. The Local Agency has estimated the total cost of the work and is prepared to accept the state funding for the work, as evidenced by an appropriate ordinance or resolution duly passed and adopted by the authorized representatives of the Local Agency, which confirms availability of local match, and expressly authorizes the Local Agency to enter into this Agreement and to complete the work under the project. A copy of this ordinance or resolution is attached hereto and incorporated herein as Exhibit B. L. The Local Agency is adequately staffed and suitably equipped to undertake and satisfactorily complete all of the Work. THE PARTIES NOW AGREE THAT: Section 1. Scope of Work and Conditions The Project or the Work under this Agreement shall consist of the purchase of rolling stock vehicles, in Pueblo, Colorado, as more specifically described in Exhibit A. The Local Agency has estimated the total cost the work to be $975,000, which is to be funded as follows: State funds: $780,000 Local Funds: $195,000 Other Funds (if applicable): Total Funds: $975,000 Section 2. Order of Precedence In the event of conflicts or inconsistencies between this Agreement and its exhibits, such conflicts or inconsistencies shall be resolved by reference to the documents in the following order of priority: 1. Special Provisions contained in Section 29 of this Agreement 2. This Agreement 3. Exhibit A (Scope of Work) 4. Exhibit F (Project Application) 5. Exhibit G (Security Agreement), if used 2 of 28 CLIN: 09 -I ITD -00051 PO #:291000601 Section 3. Term This Agreement shall be effective upon approval of the State Controller or designee, or on the date made, whichever is later. The initial term will expire on June 30, 2009, with the option to extend this time period as outlined in Section 27 of this Agreement. Section 4. Project Funding Provisions A. The Local Agency has estimated the total cost of the work (as outlined in Section I of this Agreement) and is prepared to accept the state funding for the work, as evidenced by an appropriate ordinance or resolution duty passed and adopted by the authorized representatives of the Local Agency, which confirms availability of local match, and expressly authorizes the Local Agency to enter into this Agreement and to complete the Project. A copy of this ordinance or resolution is attached hereto and incorporated herein as Exhibit B. B. The maximum amount payable by the State to the Local Agency under this Agreement shall be $780,000. It is understood and agreed by the parties hereto that the total cost of the work stated hereinbefore is the best estimate available. If the actual total project costs are less than the estimated total project costs, including as a result of the Local Agency's failure to supply the entire estimated Local share, the state's share shall be reduced proportionately. The term "proportionately" means the ratio of actual expenditures to total planned expenditures for both State and Local Agency shares. In this Agreement, the ratio shall be based on 80% State to 20 % Local Match, with the State share not to exceed the amount in Section 1. The Local Agency may increase the Local share without further State approval, but this increase shall not increase the State share. C. The parties hereto agree that this Agreement is contingent upon all funds designated for the project herein being made available from state sources, as applicable. Should these sources fail to provide necessary funds as agreed upon herein, the Agreement may be terminated by either party, provided that any party terminating its interest and obligations herein shall not be relieved of any obligations which existed prior to the effective date of such termination or which may occur as a result of such termination. Section 5. Project Payment Provisions A. The State will reimburse the Local Agency for incurred costs relative to the project following the State's review and approval of such charges, subject to the terms and conditions of this Agreement. Provided, however, that charges incurred by the Local Agency prior to the date this Agreement is executed by the State Controller will not be charged by the Local Agency to the project, and will not be reimbursed by the State. B. The State will reimburse the Local Agency's reasonable, allocable, allowable costs of performance of the Work, not exceeding the maximum total amount described in Section 4. The applicable principles described in 49 C.F.R. 18 Subpart C (Exhibit C) shall govern the 3 of 28 CLIN: 09 -I -ITD -00051 PO #:291000601 allowability and allocability of costs under this Agreement. The Local Agency shall comply with all such principles. To be eligible for reimbursement, costs by the Local Agency shall be: 1. in accordance with the provisions of Section 5 and with the terns and conditions of this Agreement; 2. necessary for the accomplishment of the Work; 3. reasonable in the amount for the goods and services provided; 4. actual net cost to the Local Agency (i.e. the price paid minus any refunds, rebates, or other items of value received by the Local Agency that have the effect of reducing the cost actually incurred); 5. incurred for Work performed after the effective date of this Agreement; 6. satisfactorily documented. Examples of ineligible costs include: 1. Staff or administrative overhead costs of the Local Agency, unless specifically allowed for in the Scope of Work; 2. Fines and penalties; 3. Entertainment expenses. C. The Local Agency shall establish and maintain a proper accounting system in accordance with generally accepted accounting standards and principles(a separate set of accounts, or as a separate and integral part of its current accounting scheme) to assure that project funds are expended and costs accounted for in a manner consistent with this Agreement and project objectives. All allowable costs charged to the project shall be supported by properly executed invoices, agreements or vouchers evidencing in detail the nature of the charges. Any check or order drawn up by the Local Agency, including any item which is or will be chargeable against the project account shall be drawn up only in accordance with a properly signed voucher then on file in the office of the Local Agency, which will detail the purpose for which said check or order is drawn. All checks, invoices, agreements, vouchers, orders or other accounting documents shall be clearly identified, readily accessible, and to the extent feasible, kept separate and apart from all other such documents. D. The Local Agency will prepare and submit to the State, no more than monthly, charges for costs incurred relative to the project. The Local Agency's invoices shall include a description of the amounts of services performed, the dates of performance and the amounts and description of reimbursable expenses. The invoices will be prepared in accordance with the State's standard policies, procedures and standardized billing format to be supplied by the State. 4 of 28 CLAN: 09 -IITD -00051 PO #: 291000601 E. To be eligible for payment, billings must be received within 60 days after the period for which payment is being requested and final billings on this Agreement must be received by the State within 60 days after the end of the Agreement term. L Payments pursuant to this Agreement shall be made as earned, in whole or in part, from available funds, encumbered for the purchase of the described services. The liability of the State, at any time, for such payments shall be limited to the amount remaining of such encumbered funds. 2. In the event this Agreement is terminated, final payment to the Local Agency may be withheld at the discretion of the State until completion of final audit. 3. Incorrect payments to the Local Agency due to omission, error, fraud or defalcation shall be recovered from the Local Agency by deduction from subsequent payment under this Agreement or other agreements between the State and Local Agency, or by the State as a debt due to the State. 4. Any costs incurred by the Local Agency that are not allowable under 49 C.F.R. 18 shall be reimbursed by the Local Agency, or offset against cun obligations due by the State to the Local Agency, at the State's election. Section 6. State Interest [Not applicable to studies] The Local Agency understands and agrees that the State retains a State interest in equipment financed with State assistance (Project property) until, and to the extent that the State relinquishes its State interest in that Project property, as described in Exhibit A. All State interests in equipment shall survive termination, expiration or cancellation of this Agreement. With respect to any Project property financed with State assistance under this Grant Agreement, the Local Agency agrees to comply with the following: A. Use of Project Property. The Local Agency agrees to use Project property for appropriate Project purposes for the duration of the useful life of that property, as required by the State and set forth in the scope. Should the Local Agency unreasonably delay or fail to use Project property during the useful life of that property, the Local Agency agrees that it may be required to return the entire amount of the State assistance expended on that property. The Local Agency further agrees to notify the State immediately when any Project property is withdrawn from Project use or when any Project property is used in a manner substantially different from the representations the Local Agency has made in its Application or in the Project Description for the Grant Agreement. . B. Maintenance. The Local Agency agrees to maintain Project property in good operating order to the State's satisfaction. C. Records. The Local Agency agrees to keep satisfactory records pertaining to the use of Project property, and submit to the State upon request such information as may berequired to assure compliance with this Section. D. Encumbrance of Project Property. The Local Agency agrees to maintain satisfactory continuing control of Project property as follows: 5 of 28 I OLIN: 09 -IITD -00051 PO #:291000601 Written Transactions. The Local Agency agrees that it will not execute any transfer of title, lease, lien, pledge, mortgage, encumbrance, third party agreement, subagreement, grant anticipation note, alienation, innovative finance arrangement (such as a cross border lease, leveraged lease, or otherwise), or any other obligation pertaining to Project property, that in any way would affect the continuing State interest in that Project property. 2. Oral Transactions. The Local Agency agrees that it will not obligate itself in any manner to any third party with respect to Project property. 3. Other Actions. The Local Agency agrees that it will not take any action adversely affecting the State interest in or impair the Local Agency's continuing control of the use of Project property. E. Transfer of Project Property. The Local Agency understands and agrees as follows: Local Agency Request. The Local Agency may transfer any Project property financed with State assistance to another public body or private nonprofit entity to be used for the same purpose set forth herein with no further obligation to the State Government, provided the transfer is approved by the State in writing. 2. State Government Direction. The Local Agency agrees that the State may direct the disposition of, and even require the Local Agency to transfer, title to any Project property financed with State assistance under this Grant Agreement if it is found that the Project is not being used for the intended purpose as stated in the Scope of Work. 3. Leasing Project Property to Another Party. If the Local Agency leases any Project property to another party, the Local Agency agrees to retain ownership of the leased Project property, and assure that the lessee will use the Project property appropriately, either through a written lease between the Local Agency and lessee, or another similar document, consistent with the project purpose set forth herein. Upon request by the State, the Local Agency agrees to provide a copy of any relevant documents. F. Disposition of Project Property, The Local Agency agrees that the State may establish the useful life of Project property, and that it will use Project property continuously and appropriately throughout the useful life of that property. Project Property Prematurely Withdrawn from Use. For Project property withdrawn from appropriate use before its useful life has expired, the Local Agency agrees as follows: 6 of 28 CLIN: 09 -HTD -00051 PO4: 291000601 a) Notification Requirement. The Local Agency agrees to notify the State immediately when any Project property is prematurely withdrawn from appropriate use, whether by planned withdrawal, misuse, or casualtyloss. b) Calculating the Fair Market Value of Prematurely Withdrawn Project Property. The Local Agency agrees that the State retains a State interest in the fair market value of Project property prematurely withdrawn from appropriate use. The amount of the State interest in the Project property shall be determined by the ratio of the State assistance awarded for the property to the actual cost of the property. The Local Agency agrees that the fair market value of Project property prematurely withdrawn from use will be calculated as follows: (1) Equipment The Local Agency agrees that the fair market value of Project equipment and supplies shall be calculated by straight -line depreciation of that property, based on the useful life of the equipment as established or approved by the State. The fair market value of Project equipment shall be the value immediately before the occurrence prompting the withdrawal of the equipment or supplies from appropriate use. In the case of Project equipment lost or damaged by fire, casualty, or natural disaster, the fair market value shall be calculated on the basis of the condition of that equipment or supplies immediately before the fire, casualty, or natural disaster, irrespective of the extent of insurance coverage. (2) Exceptional Circumstances The Local Agency agrees that the State may require the use of another method to determine the fair market value of Project property. In unusual circumstances, the Local Agency may request that another reasonable valuation method be used including, but not limited to, accelerated depreciation, comparable sales, or established market values. In determining whether to approve such a request, the State may consider any action taken, omission made, or unfortunate occurrence suffered by the Local Agency with respect to the preservation of Project property withdrawn from appropriate use. c) Financial Obligations to the State. The Local Agency agrees to remit to the State the State interest in the fair market value of any Project property prematurely withdrawn from appropriate use. In the case of fire, casualty, or natural disaster, the Local Agency may fulfill its obligations to remit the State interest by either: 7 of 28 CLIN: 09 -HTD -00051 PO #:291000601 (1) Investing an amount equal to the remaining State interest in like -kind property that is eligible for assistance within the scope of the Project that provided State assistance for the Project property prematurely withdrawn from use; or (2) Returning to the State an amount equal to the remaining State interest in the withdrawn Project property. G. The State shall protect its interest in the equipment being obtained with Project funds. The State and the Local Agency shall enter into the Security Agreement set forth in Exhibit G (if used) upon delivery and acceptance of the Project equipment. The Local Agency agrees to provide titles of the Project equipment to the State and to return all Project equipment purchased with Project funds as directed by the State in Exhibit G if the Project equipment is not used for the purposes set forth herein. H. Insurance Proceeds. If the Local Agency receives insurance proceeds as a result of damage or destruction to the Project property, the Local Agency agrees to: Apply those insurance proceeds to the cost of replacingthe damaged or destroyed Project property taken out of service, or 2. Return to the State an amount equal to the remaining State interest in the damaged or destroyed Project property. Misused or Damaged Project Property. If any damage to Project property results from abuse or misuse occurring with the Local Agency's knowledge and consent, the Local Agency agrees to restore the Project property to its original condition or refund the value of the State interest in that property, as the State may require. J. Responsibilities After Project Closeout. The Local Agency agrees that Project closeout by the State will not change the Local Agency's Project property management responsibilities as stated in this Section of the Grant Agreement. Section 7. Insurance [If applicable] At a minimum, the Local Agency agrees to comply with the insurance requirements normally imposed by State and local laws. A. The Local Agency shall obtain, and maintain at all times during the term of this Agreement and for the term of State Interest, insurance in the following kinds and amounts: Workers' Compensation Insurance as required by state statute and Employer's Liability Insurance covering all of Local Agency's and subcontractor's employees acting within the course and scope of their employment. 8 of 28 CLIN: 09 -I ITD -00051 PO #:291000601 2. Commercial General Liability Insurance written on ISO occurrence form CG 00 01 10/93 or equivalent, covering premises operations, fire damage, independent contractors, products and completed operations, blanket contractual liability, personal injury, and advertising liability with minimum limits as follows: a. $1,000,000 each occurrence; b. $1,000,000 general aggregate; c. $1,000,000 products and completed operations aggregate; and d. $50,000 any one fire. If any aggregate limit is reduced below $1,000,000 because of claims made or paid, the Local Agency shall immediately obtain additional insurance to restore the full aggregate limit and furnish to the State a certificate or other document satisfactory to the State showing compliance with this provision. 3. Automobile Liability Insurance covering any auto (including owned, hired and non - owned autos) with a minimum limit as follows. $1,000,000 each accident combined single limit. B. The State of Colorado shall be named as additional insured on the Commercial General Liability and Automobile Liability Insurance policies (leases and construction contracts will require the additional insured coverage for completed operations on endorsements CG 2010 11/85, CG 2037, or equivalent). Coverage required of the Agreement will be primary over any insurance or self - insurance program carried by the State of Colorado. C. The Insurance shall include provisions preventing cancellation or non - renewal without at least 45 days prior notice to the State by certified mail. D. The Local Agency will require all insurance policies in any way related to the Agreement and secured and maintained by the Local Agency to include clauses stating that each carrier will waive all rights of recovery, under subrogation or otherwise, against the State of Colorado, its agencies, institutions, organizations, officers, agents, employees and volunteers. E. All policies evidencing the insurance coverages required hereunder shall be issued by insurance companies satisfactory to the State. F. The Local Agency shall provide certificates showing insurance coverage required by this Agreement to the State within 7 business days of the effective date of the Agreement, but in no event later than the commencement of the services or delivery of the goods under the Agreement. No later than 15 days prior to the expiration date of any such coverage, the Local Agency shall deliver the State certificates of insurance evidencing renewals thereof. At any time during the term of this Agreement, the State may request in writing, and the Local Agency shall thereupon within 10 days supply to the State, evidence satisfactory to the State of compliance with the provisions of this section. G. Notwithstanding subsection A of this section, if the Local Agency is a "public entity" within the meaning of the Colorado Governmental Immunity Act CRS 24 -10 -101, et seq ., as 9 of 28 CLIN: 09 -HTD -00051 PO# 291000601 amended ( "Act'), the Local Agency shall at all times during the term of this Agreement maintain only such liability insurance, bycommercial policy or self - insurance, as is necessary to meet its liabilities under the Act. Upon request by the State, the Local Agency shall show proof of such insurance satisfactory to the State. Section 9. Subcontracting Obligations The Local Agency agrees that any subcontract entered into under this Agreement shall meet all applicable state and federal requirements prior to execution. The Local Agency shall not assign this Agreement without prior written approval to the State; any assignment without such approval shall be void. Section 10. Procurement Standards The Local Agency agrees to carry out its procurements consistent with the general procurement standards of the State. The Local Agency agrees to follow the general procurement standards set forth in Exhibit D. Section 11. Conformance with Law The Local Agency and its agent(s) will adhere to all applicable state and federal laws, Executive Orders and implementing regulations as they currently exist and may hereafter be amended. Further, the Local Agency agrees to comply with the intent and requirements of the National Environmental Policy Act (NEPA) regardless of whether or not there is federal funding involved, as is consistent with CDOT's Environmental Stewardship Guide. Section 12. Non Discrimination The Local Agency agrees to comply with and ensure any subcontractors comply with, the requirements of: A. The American with Disabilities Act, Title II, and its implementing regulations - -28 CFR Part 35, and 49 CFR parts 27, 37 and 38; and B. The Civil Rights Act of 1964, Titles VI and VII, and their implementing regulations. Section 13. Disadvantaged Business Enterprise Efforts The Local Agency acknowledges that it is in the best interest of the people of Colorado to promote and encourage the utilization of minority and women -owned business enterprises. The Local Agency agrees to encourage the retention of qualified minority and women -owned businesses in carrying out the Project. The Local Agency agrees to utilize the resources of CDOT's Center for Equal Opportunity, including its local agency manual at: http:/ /www.ctotstate.co. us /Dcsi enSupl2ort/l.,oc,il "I >20A venc v° o20Marival /20o64'c20Loc,11'%Ir,20A ncy %20Manual /2006cI, 201- ocal'7�20Agencv %o20Manual.htun . In addition, the Local Agency shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of this Project. 10 of 28 C1.,1N: 09 -HTD -00051 PO #:291000601 Section 14. Maintenance Obligations [Not applicable to studies] The Local Agency will maintain and operate the improvements constructed under this Agreement at its own cost and expense during their useful life, in a manner satisfactory to the State. The Local Agency will make proper provisions for such maintenance obligations each year. Such maintenance and operations shall be conducted in accordance with all applicable statutes, ordinances and regulations which define the Local Agency's obligations to maintain such improvements. The State may make periodic inspections of the project to verify that such improvements are being adequately maintained. Section 15. Record Keeping, Performance Monitoring and Audits. The Local Agency shall maintain a complete file of all records, documents, communications, and other written materials, which pertain to the costs incurred under this Agreement. The Local Agency shall maintain such records for a period of three (3) years after the date of termination of this Agreement or final payment hereunder, whichever is later, or for such further period as may be necessary to resolve any matters which may be pending. The Local Agency shall make such materials available for inspection at all reasonable times and shall permit duly authorized agents and employees of the State to inspect the project and to inspect, review and audit the project records. The Local Agency shall also permit these same described entities to monitor all activities conducted by the Local Agency pursuant to the terms of this Agreement. As the monitoring agency may in its sole discretion deem necessary or appropriate, such monitoring may consist of internal evaluation procedures, examination of program data, special analyses, on -site check, or any other reasonable procedure. Further, the Local Agency shall submit periodic and final reports to the State according to the reporting requirements outlined in the Scope of Work. Section 16. Termination Provisions This Agreement may be terminated as follows A. Termination for Convenience. The State may terminate this Agreement at any time the State determines that the purposes of the distribution of moneys under the Agreement would no longer be served by completion of the project. The State shall effect such termination by giving written notice of termination to the Local Agency and specifying the effective date thereof, at least twenty (20) days before the effective date of such termination. B. Termination for Cause. If, through any cause, the Local Agency shall fail to fulfill, in a timely and proper manner, its obligations under this Agreement, or if the Local Agency shall violate any of the covenants, agreements, or stipulations of this Agreement, the State shall thereupon have the right to terminate this Agreement for cause by giving written notice to the Local Agency of its intent to terminate and at least ten (10) days opportunity to cure the default or show cause why termination is otherwise not appropriate. Notwithstanding the above, the Local Agency shall not be relieved of liability to the State for any damages sustained by the State by virtue of any breach of the Agreement by the Local Agency, and the State may withhold payment to the Local Agency for the purposes of mitigating its damages until such time as the exact amount of damages due to the State from the Local Agency is determined. 1 1 of 28 CLIN: o9 -HTD -00051 PO #:291000601 If after such termination it is determined, for any reason, that the Local Agency was not in default or that the Local Agency's action /inaction was excusable, such termination shall be treated as a termination for convenience, and the rights and obligations of the parties shall be the same as if the Agreement had been terminated for convenience, as described herein. C. Termination Due to Loss of Funding. The parties hereto expressly recognize that the Local Agency is to be paid, reimbursed, or otherwise compensated with State funds which are available to the State for the purposes of contracting for the Project provided for herein, and therefore, the Local Agency expressly understands and agrees that all its rights, demands and claims to compensation arising under this Agreement are contingent upon availability of such funds to the State. In the event that such funds or any part thereof are not available to the State, the State may immediately terminate or amend this Agreement. Section 17. Legal Authority The Local Agency warrants that it possesses the legal authority to enter into this Agreement and that it has taken all actions required by its procedures, by -laws, and /or applicable law to exercise that authority, and to lawfully authorize its undersigned signatory to execute this Agreement and to bind the Local Agency to its terms. The person(s) executing this Agreement on behalf of the Local Agency warrants that such person(s) has full authorization to execute this Agreement, as further represented by the resolution/ordinance executed by the governing body of the Local Agency. Section 18. Representatives and Notice For the purposes of this Agreement, the representative for each party is as designated in the Scope of Work. Any notice required or permitted may be delivered in person or sent by registered or certified mail, return receipt requested, to the party at the address provided, and if sent by mail it is effective when posted in a U.S. Mail Depository with sufficient postage attached thereto. Notice of change of address or change or representative shall be treated as any other notice. Section 19. Successors Except as herein otherwise provided, this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Section 20. Third Party Beneficiaries It is expressly understood and agreed that the enforcement of the terms and conditions of this Agreement and all rights of action relating to such enforcement, shall be strictly reserved to the State and the Local Agency. Nothing contained in this Agreement shall give or allow any claim or right of action whatsoever by any other third person. It is the express intention of the State and the Local Agency that any such person or entity, other than the State or the Local Agency receiving services or benefits under this Agreement shall be deemed an incidental beneficiary only. 12 of 28 CLIN: 09 -I-ITD -00051 POft 291000601 Section 21. Governmental Immunity Notwithstanding any other provision of this Agreement to the contrary, no tern or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protection, or other provisions of the Colorado Governmental immunity Act, § 24 -10 -101, et seq., C.R.S., as now or hereafter amended. The parties understand and agree that liability for claims for injuries to persons or property arising out of negligence of the State of Colorado, its departments, institutions, agencies, boards, officials and employees is controlled and limited by the provisions of § 24 -10 -101, et seq., C.R.S., as now or hereafter amended and the risk management statutes, §§ 24 -30 -1501, et seq., C.R.S., as now or hereafter amended. Section 22. Severability To the extent that this Agreement may be executed and performance of the obligations of the parties may be accomplished within the intent of the Agreement, the terms of this Agreement are severable, and should any term or provision hereof be declared invalid or become inoperative for any reason, such invalidity or failure shall not affect the validity of any other term or provision hereof. Section 23. Waiver The waiver of any breach of a term, provision, or requirement of this Agreement shall not be construed or deemed as a waiver of any subsequent breach of such term, provision, or requirement, or of any other term, provision or requirement. Section 24. Entire Understanding This Agreement is intended as the complete integration of all understandings between the parties. No prior or contemporaneous addition, deletion, or other amendment hereto shall have any force or affect whatsoever, unless embodied herein by writing. No subsequent novation, renewal, addition, deletion, or other amendment hereto shall have any force or effect unless embodied in a writing executed and approved pursuant to the State Fiscal Rules. Section 25. Survival of Agreement Terms Notwithstanding anything herein to the contrary, the parties understand and agree that all terns and conditions of this Agreement and the exhibits and attachments hereto which may require continued performance, compliance oreffect beyond the termination date of the Agreement shall survive such termination date and shall be enforceable by the State as provided herein in the event of such failure to perform or comply by the Local Agency. Section 26. Modification and Amendment This Agreement is subject to such modifications as may be required by changes in State law or implementing regulations. Any such required modification shall automatically be incorporated into and be part of this Agreement on the effective date of such change as if fully set forth herein. Except as provided above, no modification of this Agreement shall be effective unless agreed to in writing by both parties. 13 of 28 CLIN: 09 -HTD -0005 l PO #:291000601 Section 27. Option Letters Option Letters may be used to extend Agreement term, increase or decrease amount of goods /services, and increase or decrease total contract value. A. For use when extending services: The State may require continued performance for services at the rates and terms specified in the Agreement. The State may exercise the option by written notice to the Local Agency within 30 days prior to the end of the current Agreement term in a form substantially equivalent to Exhibit E. If the State exercises this option, the extended Agreement will be considered to include this option provision. The total duration of this Agreement, including the exercise of any options under this clause, shall not exceed 5 years. B. For use when increasing quantities: The State may increase the quantity of goods /services described in paragraph/schedule /exhibit at the unit prices established in the Agreement. The State may exercise the option by written notice to the Local Agency within 30 days before the option begins in a form substantially equivalent to Exhibit E. Delivery /performance of the goods /service shall continue at the same rate and under the same terms as established in the Agreement. C. For use when increasing or decreasing the total Agreement price: The state may unilaterally increase /decrease the maximum amount payable under this Agreement based upon the unit prices established in the Agreement and the schedule of services required, as set by the State. The State may exercise the option by providing a fully executed option to the Local Agency, in a form substantially equivalent to Exhibit E, immediately upon signature of the State Controller or his delegate. Performance of the service shall continue at the same rate and under the same terms as established in the Agreement. Section 28. Disputes Except as otherwise provided in this Agreement, any dispute concerning a question of fact arising under this Agreement which is not disposed of by agreement will be decided by the Executive Director or authorized designee of the Department of Transportation. The decision will be final and conclusive unless, within 30 calendar days after the date of receipt of a copy of such written decision, the Local Agency mails or otherwise furnishes to the State a written appeal addressed to the Executive Director of the Department of Transportation. In connection with any appeal proceeding under this clause, the Local Agency shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the Local Agency shall proceed diligently with the performance of the Agreement in accordance with the decision. The decision of the Executive Director or designee for the determination of such appeals will be final and conclusive and serve as final agency action. This dispute clause does not preclude consideration of questions of law in connection with decisions provided for herein. Nothing in this Agreement, however, shall be construed as making final the decision of any administrative official, representative, or board on a question of law. Further, the Parties agree to follow this dispute resolution procedure prior to filing any action on a dispute in any court of law, and the Parties deem any applicable statute of limitation or repose to be tolled until sixty (60) days after final agency action by the Executive Director. 14 of 28 CLIN: 09 -HTD -00051 P0#:291000601 Section 29. SPECIAL PROVISIONS FOR THE STATE OF COLORADO These Special Provisions apply to all contracts except where noted in italics. L CONTROLLER'S APPROVAL. CRS §24 -30- 202(1). This contract shall not be valid until it has been approved by the Colorado State Controller or designee. 2. FUND AVAILABILITY. CRS §24 -30- 202(5.5). Financial obligations of the State payable after the cument fiscal year are contingent upon funds tar that purpose being appropriated, budgeted, and otherwise made available. 3. GOVERNMENTAL IMMUNITY. No term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, of the Colorado Governmental Immunity Act, CRS §24 -10 -101 et seq., or the Federal Tort Claims Act, 28 U.S.C. §§ 1346(6) and 2671 et seq., as applicable now or hereafter amended. 4. INDEPENDENT CONTRACTOR. Contractor shall perform its duties hereunder as an independent contractor and not as an employee. Neither Contractor nor any agent or employee of Contractor shall be deemed to be an agent or employee of the State. Contractor and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise provide such coverage for Contractor or any of its agents or employees. Unemployment insurance benefits will be available to Contractor and its employees and agents only if such coverage is made available by Contractor or a third party. Contractor shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this contract. Contractor shall not have authorization, express or implied, to hind the State to any agreement, liability or understanding, except as expressly set forth herein. Contractor shall (a) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (h) provide proof thereof when requested by the State, and (c) be solely responsible for its acts and those of its employees and agents. 5. COMPLIANCE WITH LAW. Contractor shall strictly comply with all applicable federal and State laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices. 6. CHOICE OF LAW. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this contract. Any provision included or incorporated herein by reference which conflict% with said laws, rules, and regulations shall be null and void. Any provision incorporated herein by reference which purports to negate this or tiny other Special Provision in whole or in part shall not be valid or enforceable or available in any action at law, whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision shall not invalidate the remainder of this contract, to the extent capable of execution. 7. BINDING ARBITRATION PROHIBITED. The State of Colorado does not agree to binding arbitration by any extra judicial body or person. Any provision to the contrary in this contact or incorporated herein by reference shall be null and void. 8. SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00. State or other public funds payable under this contract shall not be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. Contractor hereby certifies and warrants that, during the term of this contract and any extensions, Contractor has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that Contractor is in violation of this provision, the State may exercise any remedy available at law or in equity or under this contract, including, without limitation, immediate termination of this contract and any remedy consistent with federal copyright laws or applicable licensing restrictions. 16 of 28 CLIN: 09 -I ITD -00051 1 291000601 9. EMPLOYEE FINANCIAL. INTEREST /CONFLICT OF INTEREST. CRS § §24 -18 -201 and 24 -50 -507. The signatories over that to their knowledge, no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this contract. Contractor has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of Contractor's services and Contractor shall not employ any person having such known interests. 11). VENDOR OFFSET. CRS § §24 -30 -202 (1) and 24- 30- 202.4. [Not Applicable to intergovernmental agreements] Subject to CRS §24 -30 -202.4 (3.5), the State Controller may withhold payment under the State's vendor offset intercept system for debts owed to State agencies for: (a) unpaid child support debts or child support arrearagcs; (h) unpaid balances of tax, accrued interest, or other charges specified in CRS §39 -21 -101, et seq.; (c) unpaid loans due to the Student Loan Division of the Department of Itigher Education; (d) amounts required to be paid to the Unemployment Compensation Fund; and (e) other unpaid debts owing to the State as a result of final agency determination cr judicial action. 11. PUBLIC CONTRACTS FOR SERVICES. CRS §8- 17.5 -101. [Not Applicable to agreements relating to the offer, issuance, or sale of securities, investment advisory services or fund management services, sponsored projects, intergovernmental agreements, or information technology services or products and services] Contractor certifies, warrants, and agrees that it does not knowingly employ or contract with an illegal alien who will perform work under this contract and will confirm the employment eligibility of all employees who are newly hired for employment in the United States to perform work under this contract, through participation in the E- Verify Program or the Department program established pursuant to CRS §8- 17.5-102(5)(c), Contractor shall not knowingly employ or contract with an illegal alien to perform work under this contract or enter into a contract with a subcontractor that fails to certify to Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this contract. Contractor (a) shall not use 1 Program or Department program procedures to undertake pre- employment screening of job applicants while this contract is being performed, (b) shall notify the subcontractor and the contracting State agency within three days if Contractor has actual knowledge that a subcontractor is employing or contracting with an illegal alien for work under this contract, (c) shall terminate the subcontract if a subcontractor does not stop employing or contracting with the illegal alien within three days of receiving the notice, and (d) shall 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 Contractor participates in the Department program, Contractor shall deliver to the contracting State agency, institution of Higher Education or political subdivision a written, notarized affirmation, affirming that Contractor has examined the legal work status of such employee, and shall comply with all of the other requirements of the Department program. If Contractor fails to comply with any requirement of this provision or CRS §8- 17.5 -101 et seq., the contracting State agency, institution of higher education or political subdivision may terminate this contract for breach and, if so terminated, Contractor shall be liable for damages. 12. PUBLIC CONTRACTS WITH NATURAL PERSONS. CRS §24- 76.5 -101. Contractor, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that he or she (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 of seq., and (e) has produced one form of identification required by CRS §24- 76.5 -103 prior to the effective date of this contract. Revised 1 -1 -09 17 of 28 OLIN: 09 -IITD -00051 PO #: 291000601 THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT Persons sianing for Contractor herebv swear and arlinn that they are authorized to act on Contractor's behalf and acknowledge that the State is retying on their representations to that effect. CONTRACTOR: STATE OF COLORADO: BIL ER, JR. V RNOR City of Pueblo By f�la7 Insert Legal Name of Contracting Entity Executive Director Departm of Transportation Date �! - ZLFA Signature of Authorized Of fcer Vera Ortegon President of the Citv Council (Print) Name & Title of Authorized Officer Date April 13, 2009 CORPORATIONS: (A corporate attestation is required.) LEGAL REVIEW: Attorne General, John W. Suthers D @Lt . Date Attest (Seal) By (Corporate secretary or Equib jent, or Town/City /County Clerk) (Place corporate seal here, If available) ALL CONTRACTS REOUIRE APPROVAL by the STATE CON'T'ROLLER CRS §24 -30 -202 requires the State Controller to approve all State Contracts. This Contract is not valid until signed and dated below by the State Controller or delegate. Contractor is not authorized to begin performance until such time. If Contractor begins performing prior thereto, the State of Colorado is not obligated to pay Contractor for such performance or for any goods and/or services provided hereunder. STATE CONTROLLER Dq vid J. McDermott, CPA / , BYI. Control ler -C orado Department of Transportation Date S' (a A)5 Revised: April 1, 2008 18 of 28 CUN: 09 -HTD -00051 P()#: 291000601 Exhibit A EXHIBIT A SCOPE OF WORK AND CONDITIONS Recipient Organization Information: City of Pueblo /Pueblo Transit 350 S. Grand Avenue Pueblo, CO 81003 Project Contact Information: Brenda Broyles - Transit Superintendent 350 S. Grand Avenue Pueblo, CO 81003 (7 19) 553 -2725 (719) 553 -2724 fax bbroyles @pueblo.us Project Overview: The Local Agency will purchase a total of three (3) vehicles for replacement purposes. These vehicles will be utilized on the fixed route system within the City of Pueblo. The vehicles being purchased will be diesel fuel, heavy -duty transit coaches, 35' -40' with wheelchair lifts. They will also have security cameras and electronic fareboxes. The Vehicle Identification Numbers (VIN) of the vehicles to be replaced by The Local Agency is as follow: Unit # 170 VIN #: 1TUPDT9A5NR828788 Unit # 180 VIN #: 1 TUPDT9A7NR82 Unit# 190 VIN #: 1TUPDT9A5NR82 The Local Agency attests that said vehicles would be sold under the Federal Transit Administration guidelines. Project Budget and Funding: The funding sources for this Project are as follows: Total Project Cost: $975,000 Local Match (20 %) from City General Fund: $195,000 Senate Bill I Match (80 %): $780,000 19 of 28 CLIN: 09 -HTD -00051 POft:291000601 Exhibit A The Local Agency will procure the vehicle by means of a valid procurement already conducted by Metro Regional Transit Authority in Akron, OFI allowing a "piggyback purchase. Such procurement allowed for purchase of additional equipment, and Metro Regional Transit Authority has indicated in writing its approval of The Local Agency procuring such additional equipment under the terms and conditions of its procurement documents. Project Timeframe: The time frame for completion will be twelve (12) months. Project Measurement and Certification: The Local Agency will submit an annual certification for the vehicles for project measurement, as directed by the State. This annual document will certify that The Local Agency continues to use the equipment for the purposes set forth herein and will provide basic operating data for the equipment, including vehicle miles traveled. Service (Useful) Life of Vehicles: For purposes of this Agreement, the Service Life for the vehicles purchased through this contract will follow the Federal Transit Administration's useful life guidelines of the lesser of 12 years or 500,000 vehicle miles. The State will maintain an interest in the purchased vehicles for the entire Service Life of the vehicles. 20 of 28