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HomeMy WebLinkAbout2021-070-06/15/2021-Authorizing the execution of an intergovernmental agreement between the city of Fort Collins, Colorajl Ii, RESOLUTION 202 1-070 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF FORT COLLINS,COLORADO,AND THE COLORADO DEPARTMENT OF TRANSPORTATION FOR A MULTI-MODAL OPTION PROGRAM GRANT TO FUND THE PURCHASE OF THREE COMPRESSED NATURAL GAS BUSES WHEREAS,in 2016,the City’s Transfort Department was awarded Congestion Mitigation and Air Quality (“CMAQ”)in the amount of $950,000 to be used in the federal funding years 2020 and 2021;and WHEREAS,the CMAQ funding was appropriated through the City’s 2021 budget cycle and will fund Transfort’s purchase of two Compressed Natural Gas (“CNG”)buses;and WHEREAS,the Transfort Department subsequently applied for,and was selected to receive,Multimodal Options Funds (“MMOF”)in the amount of $908,091,which were also appropriated through the City’s 2021 budget cycle;and WHEREAS,the MMOF funds will fund the required local match for the CMAQ grant and will enable Transfort to purchase a third CNG bus;and WHEREAS,City Council believes it is in the City’s best interests to approve the Intergovernmental Agreement between the City and the Colorado Department of Transportation so that the City can receive the award of the MMOF funds,purchase all three buses,and keep the City’s bus fleet up to date and in a state of good repair. NOW,THEREFORE,BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1.That the City Council hereby makes any and all determinations and findings contained in the recitals set forth above. Section 2.That City Council authorizes the Mayor to execute,on behalf of the City, the State of Colorado Grant Agreement attached hereto as Exhibit “A”,with such additional or modified terms and conditions as the City Manager,in consultation with the City Attorney, determines to be necessary and appropriate to protect the interests of the City or effectuate this Resolution. S 1~’ Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 15th day of June,A.D.2021. 0 ATTEST: City Clerk/pA. Grantee CITY OF FORT COLLINS EXHIBIT A Docusign Envelope ID 93178C30-EFBF-4D92-8113-660716E9695D STATE OF COLORADO GRANT AGREEMENT COVER PAGE State Agency Agreement Number/PO Number Department of Transportation 21 -HTR-ZL-00 109/491002346 Agreement Performance Beginning Date The Effective Date _______________________________________________________Initial Agreement Expiration Date Grant Agreement Amount May 01,2023 MMOF Funds Maximum Amount Fund Expenditure End Date State Fiscal Year 2021 $908,091.00 May 0 I,2023 Local Funds $950,000.00 Agreement Authority Authority to enter into this Agreement exists in Total for all State Fiscal Years $908,091.00 CRS §~43-l-i06,43-1-110,43-1-ll7,43-2- I0l(4)(c),43-4-811(2),SBI8-00I,5817-228 and SB 17-267. Agreement Purpose The purpose of this Grant is for CDOT to disburse Multi-Modal Option Program Funds (MMOF)to Grantee to conduct work within the provisions of this Grant. Exhibits and Order of Precedence The following Exhibits and attachments are included with this Agreement: I.Exhibit A,Statement of Work and Budget. 2.Exhibit B,Sample Option Letter. 3.Exhibit C,Title VI-Civil Rights. In the event of a conflict or inconsistency between this Agreement and any Exhibit or attachment,such conflict or inconsistency shall be resolved by reference to the documents in the following order of priority: I.Exhibit C,Title VI-Civil Rights. 2.Colorado Special Provisions in §17 of the main body of this Agreement. 3.The provisions of the other sections of the main body of this Agreement. 4.Exhibit A,Statement of Work and Budget. 5.Executed Option Letters (if any). Principal Representatives For the State:For Grantee: Moira Moon Katlyn Kelly Division of Transit and Rail CITY OF FORT COLLINS 2829 W.Howard Place P0 BOX 580 Denver,CO 80204 FORT COLLINS,CO 80522-0580 moira.moon@state.co.us kkelly©fcgov.com Contract Number;21 -HTR-ZL-OO 109/491002346 Page I of 25 Version 10/30/19 EXHIBIT A DocuSign Envelope ID 93175C30-EFBF4D92-81 13-660716E9695D TABLE OF CONTENTS I.PARTIES 3 2.TERM AND EFFECTIVE DATE 3 3.DEFINITIONS 4 4.STATEMENT OF WORK 6 5.PAYMENTS TO GRANTEE 6 6.REPORTING -NOTIFICATION 7 7.GRANTEE RECORDS 8 8.CONFIDENTIAL INFORMATION -STATE RECORDS 9 9.CONFLICTS OF INTEREST 10 10.INSURANCE 10 II.BREACHOFAGREEMENT 12 12.REMEDIES 12 13.DISPUTE RESOLUTION 13 14.NOTICESandREPRESENTATIVES 13 15 RIGI-ITS IN WORK PRODUCT AND OTHER INFORMATION 14 16.GENERAL PROVISIONS 14 17 COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3)16 1.PARTIES This Agreement is entered into by and between Grantee named on the Cover Page for this Agreement (the “Grantee”),and the STATE OF COLORADO acting by and through the State agency named on the Cover Page for this Agreement (the “State”).Grantee and the State agree to the terms and conditions in this Agreement. 2.TERM AND EFFECTIVE DATE A.Effective Date This Agreement shall not be valid or enforceable until the Effective Date,and the Grant Funds shall be expended by the Fund Expenditure End Date shown on the Cover Page for this Agreement.The State shall not be bound by any provision of this Agreement before the Effective Date,and shall have no obligation to pay Grantee for any Work performed or expense incurred before the Effective Date,except as described in §5.D,or after the Fund Expenditure End Date.If the Work will be performed in multiple phases,the period of performance start and end date of each phase is detailed under the Project Schedule in Exhibit A. B.Initial Term The Parties’respective performances under this Agreement shall commence on the Agreement Performance Beginning Date shown on the Cover Page for this Agreement and shall terminate on the Initial Agreement Expiration Date shown on the Cover Page for this Agreement (the “Initial Term”)unless sooner terminated or fttrther extended in accordance with the terms of this Agreement. C.Extension Terms .State’s Option The State,at its discretion,shall have the option to extend the performance under this Agreement beyond the Initial Term for a period,or for successive periods,of one year or less at the same rates and under the same terms specified in this Agreement (each such period an “Extension Term”).In order to exercise this option, the State shall provide written notice to Grantee in a form substantially equivalent to Sample Option Letter attached to this Agreement. D.End of Term Extension If this Agreement approaches the end of its Initial Term,or any Extension Term then in place,the State,at its discretion,upon written notice to Grantee in a form substantially equivalent to the Sample Option Letter attached to this Agreement,may unilaterally extend such Initial Term or Extension Term for a period not to exceed two months (an “End of Term Extension”),regardless of whether additional Extension Terms are available or not.The provisions of this Agreement in effect when such notice is given shall remain in effect during the End of Term Extension.The End ofTerm Extension shall automatically terminate upon execution of a replacement Agreement or modification extending the total term of this Agreement. contnci Number:21-I-ITR-ZL.00109 491002346 Page 3 of 25 Version 10/30/19 EXHIBIT A Docusign Envelope ID 93178C30-EFBF-4D92-81 1 3-660716E9695D I.“Exhibits”means the exhibits and attachments included with this Agreement as shown on the Cover Page for this Agreement. 3.“Extension Term”means the time period defined in §2.C. K.“Goods”means any movable material acquired,produced,or delivered by Grantee as set forth in this Agreement and shall include any movable material acquired,produced,or delivered by Grantee in connection with the Services. L.“Grant Funds”means the funds that have been appropriated,designated,encumbered,or otherwise made available for payment by the State under this Agreement. M.“Grant Maximum Amount”means an amount equal to the total of Grant Funds for this Agreement. N.“Incident”means any accidental or deliberate event that results in or constitutes an imminent threat of the unauthorized access,loss,disclosure,modification,disruption,or destruction of any communications or information resources of the State,which are included as part of the Work,as described in §~24-37.5-401,et seq.,C.R.S.Incidents include,without limitation (i)successful attempts to gain unauthorized access to a State system or State Records regardless of where such information is located;(ii)unwanted disruption or denial of service;(iii)the unauthorized use of a State system for the processing or storage of data;or (iv)changes to State system hardware,firmware,or software characteristics without the State’s knowledge,instruction, or consent. 0.“Initial Term”means the time period defined in §2.8. P.“Matching Funds”(Local Funds)means the funds provided by Grantee as a match required to receive the Grant Funds. Q.“Party”means the State or Grantee,and “Parties”means both the State and Grantee. R.“PIT”means personally identifiable information including,without limitation,any information maintained by the State about an individual that can be used to distinguish or trace an individual’s identity,such as name, social security number,date and place of birth,mother’s maiden name,or biometric records.P11 includes, but is not limited to,all information defined as personally identifiable information in §~24-72-50l and 24- 73-101,C.R.S. S.“Services”means the services to be performed by Grantee as set forth in this Agreement,and shal include any services to be rendered by Grantee in connection with the Goods. T.“State Confidential Information”means any and all State Records not subject to disclosure under CORA. State Confidential Information shall include,but is not limited to P11,and State personnel records not subject to disclosure under COPS.State Confidential Information shall not include information or data concerning individuals that is not deemed confidential but nevertheless belongs to the State,which has been communicated,furnished,or disclosed by the State to Grantee which (i)is subject to disclosure pursuant to CORA;(H)is already known to Grantee without restrictions at the time of its disclosure to Grantee;(Hi)is or subsequently becomes publicly available without breach of any obligation owed by Grantee to the State;(iv) is disclosed to Grantee,without confidentiality obligations,by a third party who has the right to disclose such information;or (v)was independently developed without reliance on any State Confidential Information. U.“State Fiscal Rules”means the fiscal rules promulgated by the Colorado State Controller pursuant to §24- 30-202(13)(a),C.R.S. V.“State Fiscal Year”means a 12 month period beginning on July I of each calendar year and ending on June 30 of the following calendar year.If a single calendar year follows the term,then it means the State Fiscal Year ending in that calendar year. W.“State Records”means any and all State data,information,and records,regardless of physical form. X.“Subcontractor”means any third party engaged by Grantee to aid in performance of the Work. “Subcontractor”also includes sub-grantees of Grant Funds. Y.“Work”means the Goods delivered and Services performed pursuant to this Agreement. Z.“Work Product”means the tangible and intangible results of the Work,whether finished or unfinished, including drafts.Work Product includes,but is not limited to,documents,text,software (including source code),research,reports,proposals,specifications,plans,notes,studies,data,images,photographs,negatives, pictures,drawings,designs,models,surveys,maps,materials,ideas,concepts,know-how,information,and Contract Number:2i.KTR.ZL-00i09 491002346 PageS of 25 Version iO/30/19 EXHIBIT A DocuSign Envelope ID 93178C30-EFOF-4D92-8l I 3-660716E9695D Funds,the State’s obligation to pay Grantee shall be contingent upon such non-State funding continuing to be made available for payment.Payments to be made pursuant to this Agreement shall be made only from Grant Funds,and the State’s liability for such payments shall be limited to the amount remaining of such Grant Funds.If State,federal or other hinds are not appropriated,or otherwise become unavailable to fund this Agreement,the State may,upon written notice,terminate this Agreement,in whole or in part,without incurring further liability.The State shall,however,remain obligated to pay for Services and Goods that are delivered and accepted prior to the effective date of notice of termination, and this termination shall otherwise be treated as if this Agreement were terminated in the public interest as described in §2.E. C.Matching Funds Grantee shall provide Matching Funds as provided in §5.A and Exhibit A.Grantee shall have raised the hill amount of Matching Funds prior to the Effective Date and shall report to the State regarding the status of such hinds upon request.Grantee’s obligation to pay all or any part of any Matching Funds,whether direct or contingent,only extends to hinds duly and lawfully appropriated for the purposes of this Agreement by the authorized representatives of Grantee and paid into Grantee’s treasury or bank account.Grantee represents to the State that the amount designated “Grantee’s Matching Funds”in Exhibit A has been legally appropriated for the purposes of this Agreement by its authorized representatives and paid into its treasury or bank account.Grantee does not by this Agreement irrevocably pledge present cash reserves for payments in future fiscal years,and this Agreement is not intended to create a multiple-fiscal year debt of Grantee.If Grantee is a public entity,Grantee shall not pay or be liable for any claimed interest,late charges,fees,taxes or penalties of any nature,except as required by Grantee’s laws or policies. D.Reimbursement of Grantee Costs i.Any costs incurred by Grantee prior to the Effective Date shall not be reimbursed ii.The State shall reimburse Grantee’s allowable costs,not exceeding the Grant Maximum Amount shown on the Cover Page of this Agreement and on Exhibit A for all allowable costs described in this Agreement and shown in Exhibit A,except that Grantee may adjust the amounts between each line item of Exhibit A without formal modification to this Agreement as long as theGrantee provides notice to the State of the change,the change does not modify the Grant Maximum Amount of this Agreement or the Grant Maximum Amount for any State Fiscal Year,and the change does not modify any requirements of the Work. iii.The State shall only reimburse allowable costs described in this Agreement and shown in the Budget if those costs are: a.Reasonable and necessary to accomplish the Work and for the Goods and Services provided;and b.Equal to the actual net cost to Grantee (i.e.the price paid minus any items of value received by Grantee that reduce the cost actually incurred.) iv.Grantee’s costs for Work performed after the Fund Expenditure End Date shown on the Signature and Cover Page for this Agreement,or after any phase performance period end date for a respective phase of the Work,shall not be reimbursable.Grantee shall initiate any payment request by submitting invoices to the State in the form and manner set forth and approved by the State. E.Close-Out Grantee shall close out this Award within 45 days after the Fund Expenditure End Date shown on the Cover Page for this Agreement.To complete close-out,Grantee shall submit to the State all Deliverables (including documentation)as defined in this Agreement and Grantee’s final reimbursement request or invoice.The State will withhold 5%of allowable costs until all final documentation has been submitted and accepted by the State as substantially complete. 6.REPORTING -NOTIFICATION A.Quarterly Reports En addition to any reports required pursuant to any other Exhibit,for any Agreement having a term longer than three months,Grantee shall submit,on a quarterly basis,a written report specifying progress made for each specified performance measure and standard in this Agreement.Such progress report shall be in accordance with the procedures developed and prescribed by the State.Progress reports shall be submitted Contract Number 21 -HTR-zL-0O 109/491002346 Page 7 or 25 Version 10)30/19 EXHIBIT A DocuSign Envelope ID 93178C30-EFBF-4D9241 13-660716E9695D 8.CONFIDENTIAL INFORMATION -STATE RECORDS A.Confidentiality Grantee shall keep confidential,and cause all Subcontractors to keep confidential,all State Records,unless those State Records are publicly available.Grantee shall not,without prior written approval of the State,use, publish,copy,disclose to any third party,or permit the use by any third party of any State Records,except as otherwise stated in this Agreement,permitted by law or approved in writing by the State.Grantee shall provide for the security of all State Confidential Information in accordance with all applicable laws,rules, policies,publications,and guidelines.Grantee shall immediately forward any request or demand for State Records to the State’s Principal Representative identified on the Cover Page of this Agreement. B.Other Entity Access and Nondisclosure Agreements Grantee may provide State Records to its agents,employees,assigns and Subcontractors as necessary to perform the Work,but shall restrict access to State Confidential Information to those agents,employees, assigns and Subcontractors who require access to perform their obligations under this Agreement.Grantee shall ensure all such agents,employees,assigns,and Subcontractors sign agreements containing nondisclosure provisions at least as protective as those in this Agreement,and that the nondisclosure provisions are in force at all times the agent,employee,assign or Subcontractor has access to any State Confidential Information.Grantee shall provide copies of those signed nondisclosure provisions to the State upon execution of the nondisclosure provisions if requested by the State. C.Use,Security,and Retention Grantee shall use,hold and maintain State Confidential Information in compliance with any and all applicable laws and regulations only in facilities located within the United States,and shall maintain a secure environment that ensures confidentiality of all State Confidential Information.Grantee shall provide the State with access,subject to Grantee’s reasonable security requirements,for purposes of inspecting and monitoring access and use of State Confidential Information and evaluating security control effectiveness.Upon the expiration or termination of this Agreement,Grantee shall return State Records provided to Grantee or destroy such State Records and certify to the State that it has done so,as directed by the State.If Grantee is prevented by law or regulation from returning or destroying State Confidential Information,Grantee warrants it will guarantee the confidentiality of,and cease to use,such State Confidential Information. D.Incident Notice and Remediation If Grantee becomes aware of any Incident,Grantee shall notif~’the State immediately and cooperate with the State regarding recovery,remediation,and the necessity to involve law enforcement,as determined by the State.Unless Grantee can establish that Grantee,and its agents,employees,and Subcontractors are not the cause or source of the Incident,Grantee shall be responsible for the cost of notifying each person who may have been impacted by the Incident.After an Incident,Grantee shall take steps to reduce the risk of incurring a similar type of Incident in the fi.iture as directed by the State,which may include,but is not limited to, developing and implementing a remediation plan that is approved by the State at no additional cost to the State.The State may adjust or direct modifications to this plan,in its sole discretion and Grantee shall make all modifications as directed by the State.If Grantee cannot produce its analysis and plan within the allotted time,the State,in its sole discretion,may perform such analysis and produce a remediation plan,and Grantee shall reimburse the State for the reasonable costs thereof.The State may,in its sole discretion and at Grantee’s sole expense,require Grantee to engage the services of an independent,qualified,State-approved third party to conduct a security audit.Grantee shall provide the State with the results of such audit and evidence of Grantee’s planned remediation in response to any negative findings. E.Data Protection and Handling Grantee shall ensure that all State Records and Work Product in the possession of Grantee or any Subcontractors are protected and handled in accordance with the requirements of this Agreement,including the requirements of any Exhibits hereto,at all times.As used in this section,the protections afforded Work Product only apply to Work Product that requires confidential treatment. F.Safeguarding P11 If Grantee or any of its Subcontractors will or may receive P11 under this Agreement,Grantee shall provide for the security of such P11,in a manner and form acceptable to the State,including,without limitation,State non-disclosure requirements,use of appropriate technology,security practices,computer access security, data access security,data storage encryption,data transmission encryption,security inspections,and audits. Contract Number 21 -HTR-ZL-O0 109/491002346 Page 9 of 25 version 10/30/19 EXHIBIT A DocuSign Envelope ID 93178C30-EFBF-4D92-81 13-660716696950 D.Protected Information Liability insurance covering all loss of State Confidential Information,such as P11,PHI,PCI,Tax Information,and CS!,and claims based on alleged violations of privacy rights through improper use or disclosure of protected information with minimum limits as follows: i.$1,000,000 each occurrence;and ii.$2,000,000 general aggregate. E.Professional Liability Insurance Professional liability insurance covering any damages caused by an error,omission or any negligent act with minimum limits as follows: i.$1,000,000 each occurrence;and ii.$1,000,000 general aggregate. F.Crime Insurance Crime insurance including employee dishonesty coverage with minimum limits as follows: i.$1,000,000 each occurrence;and ii.$1,000,000 general aggregate. G.Additional Insured The State shall be named as additional insured on all commercial general liability policies (leases and construction contracts require additional insured coverage for completed operations)required of Grantee and Subcontractors. I-I.Primacy of Coverage Coverage required of Grantee and each Subcontractor shall be primary over any insurance or self-insurance program carried by Grantee or the State. L.Cancellation All insurance policies shall include provisions preventing cancellation or non-renewal,except for cancellation based on non-payment of premiums,without at least 30 days prior notice to Grantee and Grantee shall forward such notice to the State in accordance with *14 within 7 days of Grantee’s receipt of such notice. S.Subrogation Waiver All insurance policies secured or maintained by Grantee or its Subcontractors in relation to this Agreement shall include clauses stating that each carrier shall waive all rights of recovery under subrogation or otherwise against Grantee or the State,its agencies,institutions,organizations,officers,agents,employees,and volunteers. K.Public Entities If Grantee is a “public entity”within the meaning of the Colorado Governmental Immunity Act,§24-10-101, et seq.,CR5.(the “GIN’),Grantee shall maintain,in lieu of the liability insurance requirements stated above,at all times during the term of this Agreement such liability insurance,by commercial policy or self- insurance,as is necessary to meet its liabilities under the GIA.If a Subcontractor is a public entity within the meaning of the GIA,Grantee shall ensure that the Subcontractor maintain at all times during the terms of this Grantee,in lieu of the liability insurance requirements stated above,such liability insurance,by commercial policy or self-insurance,as is necessary to meet the Subcontractor’s obligations under the GIA. L.Certificates For each insurance plan provided by Grantee under this Agreement,Grantee shall provide to the State certificates evidencing Grantee’s insurance coverage required in this Agreement prior to the Effective Date. Grantee shall provide to the State certificates evidencing Subcontractor insurance coverage required under this Agreement prior to the Effective Date,except that,if Grantee’s subcontract is not in effect as of the Effective Date,Grantee shall provide to the State certificates showing Subcontractor insurance coverage required under this Agreement within seven Business Days following Grantee’s execution of the subcontract. No later than 15 days before the expiration date of Grantee’s or any Subcontractor’s coverage,Grantee shall deliver to the State certificates of insurance evidencing renewals of coverage.At any other time during the Contract Number:21 -HTR-ZL-OO 109491002346 Page ii or25 Version i 0/30/i 9 EXHIBIT A Docusign Envelope ID 93178C30-EFBF4D92-81 I 3-660716E9695D a.Suspend Performance Suspend Grantee’s performance with respect to all or any portion of the Work pending corrective action as specified by the State without entitling Grantee to an adjustment in price or cost or an adjustment in the performance schedule.Grantee shall promptly cease performing Work and incurring costs in accordance with the State’s directive,and the State shall not be liable for costs incurred by Grantee after the suspension of performance. b.Withhold Payment Withhold payment to Grantee until Grantee corrects its Work. c.Deny Payment Deny payment for Work not performed,or that due to Grantee’s actions or inactions,cannot be performed or if they were performed are reasonably of no value to the State;provided,that any denial of payment shall be equal to the value of the obligations not performed. d.Removal Demand immediate removal of any of Grantee’s employees,agents,or Subcontractors from the Work whom the State deems incompetent,careless,insubordinate,unsuitable,or otherwise unacceptable or whose continued relation to this Agreement is deemed by the State to be contrary to the public interest or the State’s best interest. e.Intellectual Property If any Work infringes,or if the State in its sole discretion determines that any Work is likely to infringe,a patent,copyright,trademark,trade secret or other intellectual property right,Grantee shall,as approved by the State (i)secure that right to use such Work for the State and Grantee,(ii) replace the Work with noninfringing Work or modify the Work so that it becomes noninfringing; or,(iii)remove any infringing Work and refund the amount paid for such Work to the State. B.Grantee’s Remedies If the State is in breach of any provision of this Agreement and does not cure such breach,Grantee,following the notice and cure period in §11 and the dispute resolution process in §13 shall have all remedies available at law and equity. 13.DISPUTE RESOLUTION A.Initial Resolution Except as herein specifically provided otherwise,disputes concerning the performance of this Agreement which cannot be resolved by the designated Agreement representatives shall be refened in writing to a senior departmental management staff member designated by the State and a senior manager designated by Grantee for resolution. B.Resolution of Controversies If the initial resolution described in §13.A fails to resolve the dispute within 10 Business Days,Grantee shall submit any alleged breach of this Agreement by the State to the Procurement Official of the State Agency named on the Cover Page of this Agreement as described in §24-101-301(30),CR5.,for resolution following the same resolution of controversies process as described in §~24-l06-l09,and 24-109-101.1 through 24-109-505,C.R.S.,(collectively,the “Resolution Statutes”),except that if Grantee wishes to challenge any decision rendered by the Procurement Official,Grantee’s challenge shall be an appeal to the executive director of the Department of Personnel and Administration,or their delegate,in the same manner as described in the Resolution Statutes before Grantee pursues any further action.Except as otherwise stated in this Section,all requirements of the Resolution Statutes shall apply including,without limitation,time limitations regardless of whether the Colorado Procurement Code applies to this Agreement. 14.NOTICES and REPRESENTATIVES Each individual identified as a Principal Representative on the Cover Page for this Agreement shall be the principal representative of the designating Party.All notices required or permitted to be given under this Agreement shall be in writing,and shall be delivered (A)by hand with receipt required,(B)by certified or registered mail to such Party’s principal representative at the address set forth on the Cover Page for this Agreement or (C)as an email with read receipt requested to the principal representative at the email address,if ContraccNumber 21.IITR.ZL-o0109/49Io02346 Page 13 of 25 Version 10/30/19 EXHIBIT A Docusign Envelope ID 93178C30-EFBF4D92-81 1 3-660716E9695D C.Binding Effect Except as otherwise provided in §16.A.,all provisions of this Agreement,including the benefits and burdens, shall extend to and be binding upon the Parties’respective successors and assigns. D.Authority Each Party represents and warrants to the other that the execution and delivery of this Agreement and the performance of such Party’s obligations have been duly authorized. E.Captions and References The captions and headings in this Agreement are for convenience of reference only,and shall not be used to interpret,define,or limit its provisions.All references in this Agreement to sections (whether spelled out or using the §symbol),subsections,exhibits or other attachments,are references to sections,subsections, exhibits or other attachments contained herein or incorporated as a pan hereof,unless otherwise noted. F.Counterparts This Agreement may be executed in multiple,identical,original counterparts,each of which shall be deemed to be an original,but all of which,taken together,shall constitute one and the same agreement. G.Entire Understanding This Agreement represents the complete integration of all understandings between the Parties related to the Work,and all prior representations and understandings related to the Work,oral or written,are merged into this Agreement.Prior or contemporaneous additions,deletions,or other changes to this Agreement shall not have any force or effect whatsoever,unless embodied herein. H.Digital Signatures If any signatory signs this Agreement using a digital signature in accordance with the Colorado State Controller Contract,Grant and Purchase Order Policies regarding the use of digital signatures issued under the State Fiscal Rules,then any agreement or consent to use digital signatures within the electronic system through which that signatory signed shall be incorporated into this Agreement by reference. I.Modification Except as otherwise provided in this Agreement,any modification to this Agreement shall only be effective if agreed to in a formal amendment to this Agreement,properly executed and approved in accordance with applicable Colorado State law and State Fiscal Rules.Modifications permitted under this Agreement,other than Agreement amendments,shall conform to the policies issued by the Colorado State Controller. 1.Statutes,Regulations,Fiscal Rules,and Other Authority Any reference in this Agreement to a statute,regulation,State Fiscal Rule,fiscal policy or other authority shall be interpreted to refer to such authority then current,as may have been changed or amended since the Effective Date of this Agreement. K.External Terms and Conditions Notwithstanding anything to the contrary herein,the State shall not be subject to any provision included in any terms,conditions,or agreements appearing on Grantee’s or a Subcontractor’s website or any provision incorporated into any click-through or online agreements related to the Work unless that provision is specifically referenced in this Agreement. L.Severability The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement,which shall remain in full force and effect,provided that the Parties can continue to perform their obligations under this Agreement in accordance with the intent of this Agreement. M.Survival of Certain Agreement Terms Any provision of this Agreement that imposes an obligation on a Party after termination or expiration of this Agreement shall survive the termination or expiration of this Agreement and shall be enforceable by the other Party. N.Taxes The State is exempt from federal excise taxes under 1.R.C.Chapter 32(26 U.S.C.,Subtitle D,Ch.32)(Federal Excise Tax Exemption Certificate of Registry No.84-730123K)and from State and local government sales and use taxes under §~39-26-7O4(I),etseq.,C.R.S.(Colorado Sales Tax Exemption Identification Number Coniract Number 2i-l-JTR-ZL-00i09 491002346 Page 5 or25 Version 10/30/19 r r EXHIBIT A Docusign Envelope ID 93178C30-EFBF-4D92-81 13-660716E96950 interpreted as a waiver,express or implied,of any of the immunities,rights,benefits,protections,or other provisions,contained in these statutes. D.INDEPENDENT CONTRACTOR. Grantee shall perform its duties hereunder as an independent contractor and not as an employee.Neither Grantee nor any agent or employee of Grantee shall be deemed to be an agent or employee of the State. Grantee shall not have authorization,express or implied,to bind the State to any agreement,liability or understanding,except as expressly set forth herein.Grantee and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise provide such coverage for Grantee or any of its agents or employees.Grantee shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this Agreement.Grantee shall (i)provide and keep in force workers’compensation and unemployment compensation insurance in the amounts required by law,(ii)provide proof thereof when requested by the State,and (iii)be solely responsible for its acts and those of its employees and agents. E.COMPLIANCE WITH LAW. Grantee shall comply with all applicable federal and State laws,rules,and regulations in effect or hereafter established,including,without limitation,laws applicable to discrimination and unfair employment practices. F.CHOICE OF LAW,JURISDICTION,AND VENUE. Colorado law,and rules and regulations issued pursuant thereto,shall be applied in the interpretation, execution,and enforcement of this Agreement.Any provision included or incorporated herein by reference which conflicts with said laws,rules,and regulations shall be null and void.All suits or actions related to this Agreement shall be filed and proceedings held in the State olColorado and exclusive venue shall be in the City and County of Denver. G.PROHIBITED TERMS. Any term included in this Agreement that requires the State to indemni&or hold Grantee harmless;requires the State to agree to binding arbitration;limits Grantee’s liability for damages resulting from death,bodily injury,or damage to tangible property;or that conflicts with this provision in any way shall be void ab initio. Nothing in this Agreement shall be construed as a waiver of any provision of §24-106-109,CR5. H SOFTWARE PIRACY PROHIBITION. State or other public funds payable under this Agreement shall not be used for the acquisition,operation,or maintenance of computer software in violation of federal copyright laws or applicable licensing resirictions. Grantee hereby certifies and warrants that,during the term of this Agreement and any extensions,Grantee has and shall maintain in place appropriate systems and controls to prevent such improper use of public fUnds. If the State determines that Grantee is in violation of this provision,the State may exercise any remedy available at law or in equity or under this Agreement,including,without limitation,immediate termination of this Agreement and any remedy consistent with federal copyright laws or applicable licensing restrictions. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST.§~24-I8-201 and 24-50-507, C.R.S. The signatories aver that to their know edge,no emp oyee of the State has any personal or beneficial interest whatsoever in the service or property described in this Agreement.Grantee has no interest and shall not acquire any interest,direct or indirect,that would conflict in any manner or degree with the performance of Grantee’s services and Grantee shall not employ any person having such known interests. J.VENDOR OFFSET AND ERRONEOUS PAYMENTS.§~24-3O-202(1)and 24-30-202.4,C.R.S. [Not applicable to intergovernmental agreements~Sub ect to §24-30-202.4(3.5),CR5.,the State Controller may withhold payment under the State’s vendor offset intercept system for debts owed to State agencies for: (i)unpaid child support debts or child support arrearages;(ii)unpaid balances of tax,accrued interest,or other charges specified in §~39-2l-l0l,et seq.,CR5.;(iii)unpaid loans due to the Student Loan Division of the Department of Higher Education;(iv)amounts required to be paid to the Unemployment Compensation Fund;and (v)other unpaid debts owing to the State as a result of final agency determination orjudicial action. The State may also recover,at the State’s discretion,payments made to Grantee in error for any reason, including,but not limited to,overpayments or improper payments,and unexpended or excess funds received by Grantee by deduction from subsequent payments under this Agreement,deduction from any payment due Conimct Number:2i-HTR-ZL-001091491002346 Page 17 of 25 version 10/30/19 C r Docusign Envelope 0 93178C30-EFBF-4D92-81 13-660716696950 EXHIBIT A,STATEMENT OF WORK AND BUDGET EXHIBIT A Project Description FTCO 202!MMOF Three (3)CNG buses Project End Date May I,2023 Subrecipient Fort Collins,City of DUNS ft 078362597 Contact Name Katlyn Kelly Vendor ft 2000023 Address P0 Box 580 Phone # Fort Collins,CO 80522-0580 Email kkeIly~fcgov.com Indirect Rate N/A WBS*23993.10.50 ALl 11.12.02 Total Project Budget $1,858,091.00 Total Eligible MMOF Project Budget $1,816,382.00 State MMOF Funds (at 50%or less)$908,091.00 Local Funds (at 50%or more)$908,091.00 Local Overmatch $41,909.00 Total Project Amount Encumbered via this Grant Agreement $908,091.00 The WBS numbers may be replaced without changing the amount of the grant at CDOT’s discretion. A.Project Description City of Fort Collins shall use 2021 MMOF funds,along with local matching funds and local overmatch funds,to purchase FTCO 2021 FASTER MMOF Three (3)CNG buses as more fully described below.The purchase will support the goals of the Statewide Transit Plan. City of Fort Collins shall use capital funds to purchase the following ADA compliant vehicles: ALL QTY Fuel Type Description MMOF Amount 11.12.02 3 CNG 35’CNG BUS $908,091 The Capital Asset(s)being purchased is/are to replace the following existing fleet vehicle(s): VIN COTRAMS Inventory Year Model Make I N93 I 0098 BA 140596 INV-000 17600 2014 31 LF NAB -North American Bus Industries Inc.(form.lkarus USA lnc./LKU) 1N94045009A140137 INV-00006613 2009 4OLF NAB -North American Bus Industries Inc.(form.Ikarus USA lnc./IKU) 1N90351088A140273 INV-00006612 2008 35LFW3510.Ol NAB -North American Bus Industries Inc.(form.Ikarus USA rnc./IKU) Contract Number;21 -IITR-ZL-00I09 491002346 Page 19 o125 Version 10/30)19 r (r EXHIBIT A Docusign Envelope ID 93178C30-EFBF-4D92-81 1 3-660716E9695D 1.The first step in the procurement process will be to obtain an Independent Cost Estimate ([CE). 2.The second step will be to obtain a Procurement Concurrence Reguest (PCR)approval from the COOT Project Manager through COTRAMS. 3.Prior to entering into a purchasing agreement with the selected vendor,City of Fort Collins shall request a Purchase Authorization (PA),and submit a purchase order for the Capital Asset(s)in COTRAMS. 4.Upon delivery,City of Fort Collins shall be responsible for having the Capital Asset(s)inspected and accepted within fifteen (15)calendar days of delivery.If defects prevent acceptance of the Capital Asset(s),City of Fort Collins will contact the vendor to resolve any defects and noti&CDOT. 5.City of Fort Collins shall be responsible for reimbursing the selected vendor within forty-five (45)calendar days after acceptance of the Capital Asset(s). E.Reimbursement Eligibility Requests for reimbursement for eligible project costs will be paid to City of Fort Collins upon submission of a complete reimbursement packet in COTRAMS for those eligible costs incurred during the Grant Agreement effective dates. Project expenses incurred prior to the contract execution date are not eligible for reimbursement Accepted reimbursement packets will include the following completed documents: •Independent Cost Estimate (ICE) •Procurement Concurrence Request (PCR) •Purchase Authorization (PA) •Signed Notice of Acceptance (NA) •Signed Security Agreement (SA) •Application for Title showing “Colorado Department of Transportation”as the lienholder •Invoice •Proof of Payment to Vendor •Post Delivery Certifications City of Fort Collins must submit the final invoice before May 1,2023,within sixty (60)calendar days of acceptance of the Capital Asset(s),and submit a Grant Closeout and Liquidation (GCL)Form in COTR.AtvIS within fifteen (IS) calendar days of issuance of the final reimbursement payment. F.State Interest-Service Life COOT maintains its share of the remaining state interest upon disposition of state assisted property before the end of its useful life or for a value greater than $5,000 after the useful life has been met,according to the provisions of the State Management Plan The useful life of rolling stock begins on the date the vehicle is placed in revenue service and continues until it is removed from revenue service The minimum useful life in years refers to total time in transit revenue service,not time spent stockpiled or otherwise unavailable for regular transit use.The minimum useful life in miles refers to total miles in transit revenue service.Non-revenue miles and periods of extended removal from service do not count towards useful life.Changes in operating circumstances,including unforeseen difficulty maintaiifng vehicles, higher cost of fuel,and changes in local law limiting where vehicles can be operated are not exemptions from minimum useful life requirements. Minimum useful life is determined by years of service or accumulation of miles,whichever comes first,in accordance with the State Management Plan. City of Fort Collins shall not dispose or otherwise release the Capital Asset(s)to any other party while there is state interest in the Capital Asset(s)without approval from the COOT Project Manager Contract Number:2 I-IITR-ZL-0O 1091491002346 Page 21 of 25 Version 10/30/19 EXHIBIT A Docusign Envelope D 93178C30-EFBF-4D92-81 13-660716E9695D 9.City of Fort Collins shall ensure that it will comply with the Americans with Disabilities Act,Section 504 of the Rehabilitation Act,FTA guidance,and any other federal,state,and/or local laws,rules and or regulations.In any contract utilizing federal funds,land,or other federal aid,City of Fort Collins shall require its subrecipients and/or contractors to provide a statement of written assurance that they will comply with Section 504 and not discriminate on the basis of disability. 10.City of Fort Collins shall agree to produce and maintain documentation that supports compliance with the Americans with Disabilities Act to CDOT upon request. Contract Number:21-IITR-ZL-00109 491002346 Page 23 of 25 Version 10130/19 C C EXHIBIT A Docusign Envelope ID 93l78C30-EFBF-4D92-81 13-660716696950 EXHIBIT C,TITLE VI-CIVIL RIGHTS Nondiscrimination Requirements The Parties shall not exclude from participation in,deny the benefits of,or subject to discrimination any person in the United States on the ground of race,color,national origin,sex,age or disability. During the performance of this Agreement,the Grantee,for itself,its assignees and successors in interest (hereinafter referred to as the “Grantee”)agrees as follows: (I)Compliance with Regulations:The Grantee shall comply with the Regulation relative to nondiscrimination in federally-assisted programs of the Department of Transportation (hereinafter,“DOT”)Title 49,Code of Federal Regulations,Part 21,as they may be amended from time to time,(hereinafter referred to as the “Regulations”),which are herein incorporated by reference and made a part of this Agreement. (2)Nondiscrimination:The Grantee,with regard to the Work performed by it during the Agreement,shall not discriminate on the grounds of race,color,national origin,or sex in the selection and retention of subgrantees,including procurements of materials and leases of equipment The Grantee shall not participate either directly or indirectly in the discrimination prohibited by section 21.5 of the Regulations,including employment practices when the Agreement covers a program set forth in Appendix B of the Regulations. (3)Solicitations for Subgrantees,Including Procurements of Materials and Equipment:In all solicitations either by competitive bidding or negotiation made by the Grantee for Work to be performed under a subcontract,including procurements of materials or leases of equipment,each potential subgrantee or supplier shall be notified by the Grantee of the Grantee’s obligations under this Agreement and the Regulations relative to nondiscrimination on the grounds of race,color,national origin or sex. (4)Information and Reports:The Grantee shall provide all information and reports required by the Regulations or directives issued pursuant thereto,and shall permit access to its books,records,accounts,other sources of information,and its facilities as may be determined by the Colorado Department of Transportation to be pertinent to ascertain compliance with such Regulations,orders and instructions.Where any information required of a Grantee is in the exclusive possession of another who fails or refuses to furnish this information the Grantee shall so certify to the Colorado Department of Transportation as appropriate,and shall set forth what efforts it has made to obtain the information. (5)Sanctions for Noncompliance:In the event of the Grantee’s noncompliance with the nondiscrimination provisions of this Agreement,the Colorado Department of Transportation shall impose such contract sanctions as it may determine to be appropriate, including,but not limited to: (a)withholding of payments to the Grantee under the Agreement until the Grantee complies,and/or (b)cancellation,termination or suspension of the Agreement,in whole or in part. (6)Incorporation of Provisions:The Grantee shall include the provisions of paragraphs (I) through (6)in every subcontract,including procurements of materials and leases of equipment,unless exempt by the Regulations,or directives issued pursuant thereto. The Grantee shall take such action with respect to any subcontract or procurement as the Colorado Department of Transportation may direct as a means of enforcing such provisions including sanctions for non-compliance;provided,however,that,in the event a Grantee becomes involved in, or is threatened with,litigation with a subgrantee or supplier as a result ofsuch direction,the Grantee may request the Colorado Department of Transportation to enter into such litigation to protect the interests of the Colorado Department of Transportation. Contrac Number:2141TR.ZL.00109/491002346 Page 25 of 25 Version 10/30/19