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HomeMy WebLinkAboutC09-354 Senate Bill-1 Contract Leadville Ops & Bus StorageCM S RoutingNo: 10-HTD-02437 SAP PO No: 291000677 Grant Agreement ~ ~.: ~ ~~ ~~ ~ THIS GRANT AGREEMENT made thrs `_"day of '~~ i%#' ?- ~ 20~ ~_~ /~by and between the State of Colorado for the use and benefit of the Colorado Department of Transportation hereinafter referred to as the State and Eagle County Transportation Authority, Eagle, Colorado, 81631, CDOT Vendor #: 2000124, 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 17076.15.03, Fund 400, Functional Area 1510, Funds Center DT510-O10, for a total available funds of $895,000. The maximum amount payable by the Department shall not exceed $580,000, which is 65% of the total available funds. The local match will be $315,000 which is 35°Io 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(VII)(2)(a)(I) 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 65% of the funding and the Local Agency will provide the 35% local match for the work. I. 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. Page 1 of 36 ~,a-~~ CM S RoutingNo: 10-HTD-0243 7 SAP PO No: 291000677 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: Scction 1. Scopc of Work and Conditions The Project or the Work under this Agreement shall consist of the construction of a transit facility, in Lake County, Colorado, as more specifically described in Exhibit A. The Local Agency has estimated the total cost the work to be $895,000, which is to be funded as follows: State funds: Local Funds: Other Funds (if applicable): Total Funds: Section 2. Order of Precedence $580,000 $315,500 $5,000 in SB 1 funding to be added when available. $900,000 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) Page 2 of 36 CM S RoutingNo: 10-HTD-0243 7 SAP PO No: 291000677 Section 3. Term This Agreement shall be effective upon approval of the State Controller or designee, or on the date made, whichever is later. For construction related projects, the term of this Agreement shall continue through the completion and final acceptance of the Project by the State and the Local Agency. For all other projects, the initial term will expire on June 30, 2010, 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 1 of this Agreement) 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 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 $585,000. 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 65% State to 35°Io Local Match, with the State share not to exceed the amount in Section l. 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 ternunation 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. Page 3 of 36 CMSRoutingNo: I 0-HTD-02437 SAP PO No: 291000677 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 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 terms 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 cunent 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, including any approved services contributed by the Local Agency or others, shall be supported by properly executed payrolls, time records, 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, payrolls, 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 docun~ents. 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 erpenses. The invoices ~vill ~e prepared in accordance with the State's standard policies, procedures and standardized billing format to be supplied by the State. Page 4 of 36 CM SRoutingNo: 10-HTD-0243 7 SAP PO No: 291000677 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. 1. 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 current 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 any real property, or 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 real property or 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 be required to assure compliance with this Section. Page 5 of 36 CMSRoutingNo: 10-HTD-02437 SAP PO No: 291000677 D. Encumbrance of Project Property. The Local Agency agrees to maintain satisfactory continuing control of Project property as follows: 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. 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. 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: Page 6 of 36 CM S RoutingNo: 10-HTD-0243 7 SAP PO No: 291000677 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 casualty loss. 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) Real Property. The Local Agency agrees that the fair market value of real property shall be determined either by competent appraisal based on an appropriate date approved by the State, or by straight line depreciation, whichever is greater. (3) 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 Page 7 of 36 CMSRoutingNo: 10-HTD-02437 SAP PO No: 291000677 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: (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 H 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 equipmentpurchased with Project funds as directed by the State in Exhibit H 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 replacing the damaged or destroyed Project property taken out of service, or Return to the State an amount equal to the remaining State interest in the damaged or destroyed Project property. I. 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. Page 8 of 36 CMSRoutingNo: 10-HTD-02437 SAP PO No: 291000677 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. 2. Commercial General Liability Insurance written on ISO occurrence form CG 00 O1 10/93 or equivalent, covering premises operations, fire damage, independent contractors, products and completed operations, blanket contractual liability, personal injury, and advertising liabiliry 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 certi~cate or other document satisfactory to the State showing compliance with this provision. 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, institutians, organizations, officers, agents, emp:cyees ar.d volunteers. Page 9 of 36 CM SRoutingNo : 10-HTD-02437 SAP PO No: 291000677 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 amended ("Act'), the Local Agency shall at all times during the term of this Agreement maintain only such liability insurance, by commercial 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 8. Utilities, Access, Right of Way If necessary, the Local Agency will be responsible for obtaining the proper clearance or approval from any utility company, Local, State, or Federal Government Agency, or other entity which may become involved in this Project. Prior to this Project being advertised for bids, the Responsible Party will certify in writing to the State that all such clearances have been obtained. 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 Environmenta? Policy Act (NEPA) regardless of whether or not there is federal funding involved, as is consistent with CDOT's Environmental Stewardship Guide. Page 10 of 36 CMSRoutingNo: 10-HTD-02437 SAP PO No: 291000677 If any federal funds are used in financing the project, then the Local Agency is responsible to ensure compliance with applicable federal rules and regulations, including but not limited to, Uniform Administrative Requirements for Grants (49 CFR Part 18) and the National Environmental Policy Act. 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: IltTp:llwww.dot.state.co.us/Desi~nSuppoi-t/Loeal%20A~ency~I~~20Manual/2006cIo20Local~Ie20A~e iicy%n20Manual/2006°Io20LoeaI~Ic20AQe~ncy°Io20Manual.htm . 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. If the Local Agency is also receiving federal funds for use with the Project, all funds will be subject to federal DBE requirements per 49 CFR 26.3, and the Local Agency will be responsible for ensuring compliance with the DBE requirements of that federal agency. 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 Page 11 of 36 CMS RoutingNo: 10-HTD-02437 SAP PO No: 291000677 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. In the event of termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs and reports or other material prepared by the Local Agency under this Agreement shall, at the option of the State, become its property, and the Local Agency shall be entitled to receive just and equitable compensation for any materials delivered and accepted. The Local Agency shall be obligated to return any payments advanced under the provisions of this Agreement. 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 detennined. 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. Page 12 of 36 CM SRoutingNo: 10-HTD-0243 7 SAP PO No: 291000677 C. Termination Due to Loss of Fundin~. 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 Bene~ciaries 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. Section 21. Governmental Immunity Notwithstanding any other provision of this Agreement to the contrary, no term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, 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 Page 13 of 36 CM SRoutingNo: 10-HTD-02437 SAP PO No: 291000677 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 tern~ 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 terms and conditions of this Agreement and the exhibits and attachments hereto which may require continued performance, compliance or effect 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. Moditication 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. Page 14 of 36 CM S Routi n g N o: 10-HT D-024 3 7 SAP PO No: 291000677 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 ~inder this Agreement which is not disposed of by agreement will be decided by the Executive Director or authorizecl designee of the Department of Transportation. The decision will be tinal 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 Directar 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 acCion by the Executive Director. ~ Page 15 of 36 CMSRoutingNo: 10-HTD-02437 SAP PO No: 291000677 immediate termination of this contract and any remedy consistent with federal copyright ]aws or applicable licensing restrictions. 9. EMPI,OYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. CRS §§24-18-201 and 24-50-507. The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest wha[soever 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. 10. 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 arrearages; (b) unpaid balances of tax, accrued interest, or other charges specified in CRS §39-21-101, et seq.; (c) unpaid loans due to the Swdent Loan Division of-the Department of Higher 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 or judicial act~on. 11. PUBLIC CONTRACTS FOR SERVICES. CRS §8-17.5-1OL [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, warran[s, 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. Con[ractor (a) shall not use E-Verify Program or Department program procedures to undertake pre- employment screening of job applicants while this contract is being performed, (b) shall notify [he subcontractor and the contracting State agency wi[hin three days if Con[ractor has actual knowledge that a subcontractor is employing or contracting with an illegal alien for work under this contract, (c) shall [ernunate the subcontract if a subcontractor does not stop employing or contracting with the illegal alien within three days of receiving the noticc, and (d) shall comply wi[h reasonable requests made in the course of an investigation, undertaken pursuant [o CRS §8-17.5-102(5), by [he 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, affirnung 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 tertninate this contract for breach and, if so termina[ed, 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 affirrns 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 et sey., and (c) has produced one forn~ of identification required by CRS §24-76.5-]03 prior to the effective date of this contract. Revised 1-1-09 Page 17 of 36 CM SRoutingNo: 10-HTD-02437 SAP PO No: 291000677 THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT * Persons signing for Contractor hereby swear and affirm that they are authorized to act on Contractor's behalf and acknowledge that the State is relying on their representations to that effect. GRANTEE STATE OF COLORADO Eagte County Bill Ritter, Jr. GOVERNOR ' - ~~~ l B ` ~ ~'~ i~~ Colorado Department of Transportation . ._ y: (:I ,_ ;>i .. i Title:f, ~~, l.~-~ ~'~ ~,'~ 1~~~~L,l~.`~L I l,~' i i;. `` ~. u i~' , ~:'~ ~, , ~"r ~~!L 'y 1 By: (for) the Executive Director ~ Signatory avers to the State Controller or delegate that ignature Grantee has not begun performance or that a Statutory , Violation waiver has been requested under Fiscal Rules ~ -.ti " -~.' / ~ %~ Date: ~ " ~ ' ~~~ .,1..1 Date: 2nd Grantee Signature if Needed LEGAL REVIEW By: INSERT-Name of Authorized Individual John W. Suthers, Attorney General Title: INSERT-Official Title of Authorized Individual By: Signature - Assistant Attorney General *Signature Date: Date: ALL CONTRACTS REOUIRE APPROVAL bv the STATE CONTROLLER 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 pertorming prior thereto, the State ot Colorado is not obligated to pay Contractor for such pertormance or for any goods and/or services provided hereunder. STATE CONTROLLER David J• McDermott, CPA By: Controller-Colorado Department of Transportation Date: Revised: April 1, 2009 Page 18 of 36 CMSRouti ngNo: 10-HTD-02437 SAP PO No: 291000677 EXHIBIT A SCOPE OF WORK AND CONDITIONS Page 19 of 36 CMSRoutingNo: 10-HTD-02437 SAP PO No: 291000677 EXHIBIT A- SCOPE OF WORK AND CONDITIONS Recipient Organization: Eagle County Regional Transportation Authority 3289 Cooley Mesa Road, Box 1070 Gypsum, CO 81637-1070 Project Contact Information: Harry N. Taylor Director of Regional Transportation (970) 328-3521 Office (970) 328-3539 Fax Harry.Taylor@ eaglecounty.us CDOT Contact Information: Tom Mauser Modal Programs Manager, Division of Transportation Development 4201 E. Arkansas Avenue Denver, CO 80222 Ph: (303) 757-9768 Fax: (303) 757-9727 Email: Tom.Mauser@dot.state.co.us Project Overview: The Local Agency will design and construct a 6-bay storage facility in Leadville to succeed the current facility, which the Local Agency leases. The project location is a 2-acre site purchased by the Local Agency with local funds at the southeast corner of Highway 24 and County Road 6 in Lake County, CO. The facility will be dedicated almost entirely to bus storage; maintenance activities will be minimal, and there will be a small office and a restroom. The building will occupy 4,627 square feet, which comprises approximately one-third of the project property footprint. The other two-thirds will be comprised of parking and circulation. The final project will be a 6-bay storage facility, a 12-space parking area, and circulation. A finished building with heating/ventilation, secure doors and surfaces for parking and circulation will constitute a finished product. Project Budget and Funding: The total funding sources for this particular contract are: State SB 1 Funding: $580,000 Local Agency Required 20°Io match: $145,000 Local Agency Additional 15°Io Overmatch: $170,000 Total: $895,000 Page 20 of 36 CMSRoutingNo: 10-HTD-02437 SAP PO No: 291000677 Funding for the facility is 65% Senate Bill 1 funds and 35°Io Local Agency, with the State contribution not to exceed $585,000 for the entire project. The Local Agency will provide the required 20°Io local match but has agreed to also provide an additional 15°Io overmatch. For contracting purposes, only the 20°Io local match is referenced in the Recitals of this agreement to avoid processing delays by the State, but for reimbursement purposes the Local Agency is required to provide a minimum 35°Io local match. A remaining balance of $5,000 has been budgeted for contracting by the State. The remaining funds will be offered by the State when funds become available for budgeting. The Local Agency will provide a local match of $1,250 for these funds to make a total project budget of $900,000 for the entire project. SB 1 Funds will be dedicated to construction of the facility. The Local Agency's required 35% match will derive from design, engineering and construction. The Local Agency agrees to submit invoices for reimbursement no more than monthly. Contractor Selection Process: The design contractor and the construction contractor will be selected through an RFP or an IFB process that meets the State procurement guidelines. Environmental Clearances: The Local Agency is responsible for receiving all relevant environmental clearances from CDOT Region 3 prior to construction. Project Timeframe: The Local Agency expects to complete the project in the spring of calendar 2009. This will be dependent on the planning and environmental work required and the successful selection of a design contractor and construction contractor. State Interest: The State's interest in the facility is for the duration of 10 years. If during that period, the Local Agency wishes to withdraw the facility from the stated use, the Local Agency agrees to follow disposition procedures outlined in Section 6 of this Agreement and to notify and confer with the S tate. Project Measurement and Reporting: The Local Agency will submit annual documentation certifying that the project property is still being utilized for the purposes set forth herein. Page 21 of 36 CMSRouti ngNo: 10-HTD-02437 SAP PO No: 291000677 EXHIBIT B LOCAL AGENCY ORDINANCE or RES OLUTION Page 22 of 36 CM S Routi ngNo: 10-HTD -02437 SAP PO No: 291000677 EXHIB IT C 49 C.F.R. 18 SUBPART C Page 23 of 36 CMSKoutingNo: 10-HTD-02437 SAP PO No: 291000677 49 CFR 18 Subpart C-- Post-Award Requirements Financial Administration Sec. 18.20 Standards for financial management systems. (a) A State must expand and account for grant funds in accordance with State laws and procedures for expending and accounting for its own funds. Fiscal control and accounting procedures of the State, as well as its subgrantees and cost-type contractors, must be sufficient to- (1) Permit preparation of reports required by this part and the statutes authorizing the grant, and (2) Permit the tracing of funds to a level of expenditures adequate to establish that such funds have not been used in violation of the restrictions and prohibitions of applicable statutes. (b) The financial management systems of other grantees and subgrantees must meet the following standards: (1) Financial reporting. Accurate, cui-rent, aud complete disclosure of the financial results of financially-assisted activities must be made in accordance with the financial reporting requirements of the grant or subgrant. (2) Accounting records. Grantees and subgrantees must maintain records which adequately identify the source and application of funds provided for financiallyassisted activities. These records must contain information pertaining to grant or subgrant awards and authorizations, obligations, unobligated balances, assets, liabilities, outlays or expenditures, and income. (3) Internal control. Effective control and accountability must be maintained for all grant and subgrant cash, real and personal property, and other assets. Grantees and subgrantees must adequately safeguard all such property and must assure that it is used solely for authorized purposes. (4) Budget control. Actual expenditures or outlays must be compared with budgeted amounts for each grant or subgrant. Financial information must be related to performance or productivity data, including the development of unit cost information whenever appropriate or specifically required in the grant or subgrant agreement. If unit cost data are required, estimates based on available documentation will be accepted whenever possible. (5) Allowable cost. Applicable OMB cost principles, agency program regulations, and the terms of grant and subgrant agreements will be followed in determining the reasonableness, allowability, and allocability of costs. (6) Source documentation. Accounting records must be supported by such source documentation as cancelled checks, paid bills, payrolls, time and attendance records, contract and subgrant award documents, etc. (7) Cash management. [NOT APPLICABLE] (c) [NOT APPLICABLE] (d) [NOT APPLICABI,I~: ~ Page 24 of 36 CM S RoutingNo: 10-HTD-0243 7 SAP PO No: 291000677 Sec. 18.21 Payment. [NOT APPLICABLE] Sec. 18.22 Allowable costs. (a) Limitation on use of funds. Grant funds may be used only for: (1) The allowable costs of the grantees, subgrantees and cost-type contractors, including allowable costs in the form of payments to fixed-price contractors; and (2) Reasonable fees or profit to cost-type contractors but not any fee or profit (or other increment above allowable costs) to the grantee or subgrantee. (b) Applicable cost principles. For each kind of organization, there is a set of Federal principles for determining allowable costs. Allowable costs will be determined in accordance with the cost principles applicable to the organization incurring the costs. The following chart lists the kinds of organizations and the applicable cost principles. For the costs of a Use the principles in-- State, local or Indian tribal government. OMB Circular A-87. Private nonprofit organization other than an (1) OMB Circular A-122. institution of higher education, (2) hospital, or (3) organization named in OMB Circular A122 as not subject to that circular. Educational institutions. For-profit organization other than a hospital and an organization named in OMB Circular A122 as not subject to that circular. OMB Circular A-21. 48 CFR part 31. Contract Cost Principles and Procedures, or uniform cost accounting standards that comply with cost principles acceptable to the Federal agency. (c) [NOT APPLICABLE] (d) [NOT APPLICABLE] (e) [NOT APPLICABLr:, ~ Page 25 of 36 CMSRoutingNo: 10-HTD-02437 SAP PO I~'o: 291000677 EXHIBIT D GENERAL PROCUREMENT STANDARDS Page 26 of 36 CM SRoutin gNo: 10-HTD-02437 SAP PO No: 291000677 General Procurement Standards 1. Maintain a contract administration system which ensures that contractors perform in accordance with the terms, conditions, and specifications of the contract or purchase order. 2. Maintain a written code of standards of conduct governing the performance of their employees engaged in the award and administration of contracts. 3. Maintain procedures that provide for the review of proposed procurements to avoid purchase of unnecessary or duplicative items. 4. Use value engineering clauses in contracts for construction projects of sufficient size to offer reasonable opportunities for cost reductions. 5. Make awards only to responsible contractors possessing the ability to perform successfully under the terms and conditions of the proposed procurement. Consideration shall be given to such matters as contractor integrity, compliance with public policy, record of past performance, and financial and technical resources. 6. Maintain records sufficient to detail the significant history of the procurement. Including: a. Rationale for the method of procurement b. Selection of contract type c. Contractor selection or rejection d. Basis for the contract price e. Other 7. Maintain protest procedures to handle and resolve disputes relating to procurements. 8. All procurement transactions shall be conducted in a manner providing full and open competition. 9. Maintain written selection procedures for procurement transactions 10. Ensure that all pre-qualified list of persons, firms, or products which are used in acquiring goods and services are cunent and include enough qualified sources to ensure maximum open and free competition. 11. Method of procurements to be followed: a. Small Purchase - are those relatively simple and informal procurement methods for securing services, supplies, or other property that do not cost more than $150,000.00. If small purchase procedures are used, price or rate quotation shall be obtained from at lease three sources. Quotations will be in writing if for goods in excess of $10,000 and if for services in excess of $25,000.00. b. Formal Sealed Bids - Bids are publicly solicited and a firm-fixed-price contract (lur.~g sum cr unit price) is awarded to the responsible bidder whose bid, conforming with all the material terms and conditions of the invitation for bids, is the lowest in price. This method is preferred for procuring construction. If this method is used the following requirements apply: Page 27 of 36 CM SRoutingNo : 10-HTD-02437 SAP PO No: 291000677 i. Must be publicly advertised ii. Must give at least 14 days for bidders to respond iii. Must include any specifications and pertinent attachments to all bidders to respond properly iv. All bids will be publicly opened at the time and place prescribed in the invitation for bid v. A firm fixed-price contract award will be made in writing to the lowest responsive and responsible bidder. vi. Any or all bids may be rejected if there is a sound documented reason c. Competitive Proposals - is generally used when conditions are not appropriate for the use o~ sealed bids. If this method is used the following requirements apply: i. Request for proposals will be publicized ii. Identify all evaluation factors and their relative importance iii. Proposals will be solicited from an adequate number of qualified sources iv. Have a method for conducting technical evaluation of the proposals received and for selecting awardees v. Awards will be made to the responsible firm whose proposal is most advantageous to the program, with price and other factors considered vi. May be used for qualifications-based procurement of architectural/engineering professional services whereby competitors' qualifications are evaluated and the most qualified competitor is selected. Note - the method, where price is not used as a selection factor, can only be used in procurement of A/E professional services. It cannot be used to purchase other types of services through A/E firms. d. Noncompetitive Proposals - may be used only when the award of a contract is infeasible under the other three methods and the following circumstances applies: i. The item is available only from a single source; ii. The public exigency or emergency for the requirement will not permit a delay resulCing from competitive solicitation iii. The awarding agency authorizes noncompetitive proposals; or iv. After solicitation of a number of sources, competition is determined inadequate. 12. Small, Minority and Women owned business enterprise and labor surplus area firms - Take affirmative sieps to assure that minority and women business enterprises, and labor surplus area firms are used when possible. i. Placing qualified firms on solicitation lists; Page 28 of 36 L TERM SHEET 1) 2) For County Mana~er si~nature: N/A ~_~ ~~~/ED 3) Repuestin~ department: ~CO Transit ~~~ ~ ~ ~p09 ~AGL~ ~:ouiv~lY ATTORNEY 4) Title: Senate Bill-1 Contract for Leadville Operations and Bus Storage Facility 5) Check one: Consent: X On the Record: 6) Staff submittin~: Harry N. Taylor, Director, ECO Transit 7) Purpose: ECO Transit received a$585,000 Grant Award from the Colorado Department of Transportation Senate Bill 1 funding pot applied for by ECO in 2006. Project Description: purchase land and construct a satellite bus storage and light maintenance facility in Leadville, Lake County, Colorado. The facility will provide storage for six buses, with room for expansion. 8) Schedule: ECO Transit purchased the land in 2007, received rezoning approval from Leadville and Lake County in 2007, developed the design with the approval of the Leadville P& Z Board in 2007, bid and awarded the project in 2008. The Facility was completed in January of 2009 and reimbursement of funding was scheduled by CDOT following the second quarter of 2009. 9) Financial considerations: Total cost of the new Bus Storage Facility in Leadville was $1,200,000 with $580,000 coming from the CDOT SB 1 award. The $580,000 to be reimbursed by CDOT will go to replenish the ECO Transit 1151 Fund Balance as intended. This project was coordinated through the Eagle County Project Management Department. ~~ .~ '~ ~~ G~ "~ ~ "U~ _--__ A PROVED A~ F~RM_--~ - By: _ ~z---- ~a~le ~;nunty Attorney's Office Sy' --- -- Eagle County Commissloners' Office