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
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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.
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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.
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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
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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
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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.
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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:
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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:
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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:
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(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.
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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
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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
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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
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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.
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