HomeMy WebLinkAbout2015-26 IGA with CO Dept. Revenue for CDL Driver Testing AgreementRESOLUTION NO. 26
Series of 2015
A RESOLUTION APPROVING AN INTERGOVERNMENTAL AGREEMENT (THE "IGA")
BETWEEN THE TOWN OF VAIL AND COLORADO DEPARTMENT OF REVENUE,
DIVISION OF MOTOR VEHICLES REGARDING CDL DRIVER TESTING; AND SETTING
FORTH DETAILS IN REGARD THERETO.
WHEREAS, the Town of Vail (the "Town"), in the County of Eagle and State of
Colorado is a home rule municipal corporation duly organized and existing under the
laws of the State of Colorado and the Town Charter (the "Charter");
WHEREAS, the members of the Town Council of the Town (the "Council") have
been duly elected and qualified;
WHEREAS, the Colorado Department of Revenue, Division of Motor Vehicles
("DOR") desires to authorize the Town to administer and provide CDL testing on behalf of
DOR;
WHEREAS, the Council's approval of Resolution No. 2 6, Series 2015, is
required to enter into the IGA.
NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF VAIL, COLORADO THAT:
Section 1. The Council hereby approves the IGA and authorizes the Town
Manager to enter into the IGA with DOR on behalf of the Town in substantially the same
form as attached hereto as Exhibit A and in a form approved by the Town Attorney.
Section 2. This Resolution shall take effect immediately upon its passage.
INTRODUCED, PASSED AND ADOPTED at a regular meeting of the Town
Council of the Town of Vail held this 15th day of September, 2015.
1 g
Andrew P. Daly
Town Mayor
ATTEST:
y Kenny
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Resolution No. 26, Series of 2015
Routing # TAA 16/83169
STATE OF COLORADO
Colorado Department of Revenue
Division of Motor Vehicles
Inter -Governmental CDL Driver Testing Agreement
with
Town of Vail
TABLE OF CONTENTS
1. PARTIES......................................................................................................................................................................1
2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY..........................................................................................1
3. RECITALS....................................................................................................................................................................1
4. DEFINITIONS..............................................................................................................................................................2
5. TERM...........................................................................................................................................................................
2
6. STATEMENT OF WORK............................................................................................................................................
3
7. NO COST AGREEMENT............................................................................................................................................
3
8. REPORTING — NOTIFICATION................................................................................................................................
3
9. CONTRACTOR RECORDS........................................................................................................................................
4
10. CONFIDENTIAL INFORMATION -STATE RECORDS............................................................................................
5
11. REPRESENTATIONS AND WARRANTIES.............................................................................................................
5
12. SURETY BONDS.........................................................................................................................................................
6
13. INSURANCE................................................................................................................................................................
6
14. BREACH......................................................................................................................................................................
8
16. REMEDIES...................................................................................................................................................................8
17. NOTICES and REPRESENTATIVES..........................................................................................................................
9
18. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE...................................................................10
19. GOVERNMENTAL IMMUNITY ..............................................................................................................................10
20. GENERAL PROVISIONS..........................................................................................................................................10
21. COLORADO SPECIAL PROVISIONS.....................................................................................................................12
22. SIGNATURE PAGE...................................................................................................................................................15
EXHIBITA — STATEMENT OF WORK...........................................................................................................................
1
EXHIBIT B — OPTION RENEWAL LETTER...................................................................................................................
1
1. PARTIES
This Agreement ("Agreement") is entered into by and between Town of Vail ("Contractor"), and the
STATE OF COLORADO acting by and through the Colorado Department of Revenue, Division of Motor
Vehicles, Driver Testing and Education ("DOR", "DMV" or "State"). Contractor and the State hereby agree
to the following terms and conditions.
2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY
This Agreement shall not be effective or enforceable until it is approved and signed by DOR (hereinafter
called the "Effective Date"). The State shall not be liable to pay or reimburse Contractor for any
performance hereunder including, but not limited to, costs or expenses incurred, or be bound by any
provision hereof prior to the Effective Date.
3. RECITALS
A. Authority, Appropriation, and Approval
Authority to enter into this Agreement exists in CRS §24-35-105. Authority to certify appropriate third
parties to test and train applicants for licensing exists in CRS §42-2-111(1)(b). Required approvals,
clearance and coordination have been accomplished from and with appropriate agencies.
B. Consideration
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The Parties acknowledge that the mutual promises and covenants contained herein and other good and
valuable consideration are sufficient and adequate to support this Agreement.
C. Purpose
The State desires to authorize Contractor to administer and provide CDL testing on behalf of the State
as provided in 1 CCR 204-30 Rule 7 as currently written or hereafter amended.
D. References
All references in this Agreement to sections (whether spelled out or using the § symbol), subsections,
exhibits or other attachments, are references to sections, subsections, exhibits or other attachments
contained herein or incorporated as a part hereof, unless otherwise noted.
4. DEFINITIONS
The following terms shall have the meanings ascribed to them below. Capitalized terms used in this
Agreement but not defined shall have the meanings ascribed to them in 1 CCR 204-30 as currently written
or hereafter amended.
CDL Driving Skills Tester: A person licensed by the State under the provisions of CRS §42-2-407 to
administer CDL Skills Test.
CDL Testing Unit or Testing Unit: Either a business, association, or governmental entity licensed by the
State under the provisions of CRS §42-2-407 to administer CDL Skills Test.
Commercial Driver's License or CDL : A license issued to an individual in accordance with the
requirements of the federal Commercial Motor Vehicle Safety Act of 1986 and State laws, rules and
regulations, including CRS § 42-2401 et seq., as currently written or hereafter amended. A card issued by
the State which entitles the holder while having such document in his or her immediate possession, to drive
a motor vehicle of certain classes and endorsements upon the highways without supervision.
Agreement: This base document and all exhibits, attachments, and amendments.
Goods: A tangible material acquired, produced, or delivered by Contractor either separately or in
conjunction with the Services;
Party or Parties: "Party" means the State or Contractor and "Parties" means both the State and Contractor.
Renewal Term - The extension of the Initial Term pursuant to an Option Letter as provided in §S.C.
Services: The required services to be performed by Contractor pursuant to this Agreement.
Work: The tasks and activities Contractor is required to perform to fulfill its obligations under this
Agreement, Exhibit A, and 1 CCR 204-30 Rule 7, as currently written or hereafter amended, including the
performance of the Services and delivery of the Goods.
Work Product: The tangible or intangible results of Contractor's Work, including, but not limited to,
software, research, reports, studies, data, photographs, negatives or other finished or unfinished documents,
drawings, models, surveys, maps, materials, or work product of any type, including drafts.
5. TERM
A. Initial Term -Work Commencement
Performance under this Agreement shall commence on the later of either the Effective Date or August
21, 2015. This Agreement shall terminate on August 20, 2018, unless sooner terminated or further
extended as specified elsewhere herein.
Notwithstanding anything in this Agreement to the contrary, the license of a Testing Unit may be
revoked, canceled or suspended in accordance with 1 CCR 204-30 Rule 7, including without limitation
7(0), as currently written or hereafter amended. The term of this Agreement is contingent upon the
issuance and continuous maintenance of valid licensing of the Testing Unit to provide Services. Absent
valid licensing, Contractor may not provide Services. Any loss of license shall be sufficient cause for
immediate termination of this Agreement. Permanent loss of license shall immediately terminate this
Agreement.
B. Two Month Extension
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The State, at its sole discretion upon written notice to Contractor as provided in §17, may unilaterally
extend the term of this Agreement for a period not to exceed two months if the Parties are negotiating a
replacement term. The provisions of this Agreement in effect when such notice is given, including, but
not limited to prices, rates, and delivery requirements, shall remain in effect during the two-month
extension. The two month extension shall immediately terminate when and if a replacement Agreement
is approved and signed by the DOR.
C. State's Option to Extend
The State, at its sole discretion, may extend the term of this Agreement for a period of two (2) additional
one-year renewal periods on the same terms specified in this Agreement. If the State exercises this
option, it shall provide written notice to Contractor at least thirty (30) days prior to the end of the current
Contract term in form substantially equivalent to Exhibit B. If exercised, the provisions of the Option
Letter shall become part of and be incorporated into this Agreement.
6. STATEMENT OF WORK
A. Completion
Contractor shall complete the Work and its other obligations as described herein and in Exhibit A,
Statement of Work, at no cost to the State.
B. Goods and Services
Contractor shall procure Goods and Services necessary to complete the Work. Such procurement shall
be at the expense of the Contractor without compensation from or reimbursement by the State.
C. Employees
All persons employed by Contractor to perform Work under this Agreement shall be Contractor's
employee(s) for all purposes hereunder and shall not be employees of the State for any purpose as a
result of this Agreement.
D. Authorization
The State hereby authorizes Contractor to provide the Services described herein, in Exhibit A, and I
CCR 204-30 Rule 7, as currently written or hereafter amended, in accordance with the terms and subject
to the obligations set forth herein and therein. This Agreement incorporates by reference 1 CCR 204-30
Rule 7.
E. Subcontractors Not Permitted
The use of subcontractors in the performance of this Agreement is not allowed. Pursuant to CRS §42-2-
407(1) CDL Driving Tests may be performed only by employees of DOR or by CDL Driving Skills
Tester(s) employed by licensed CDL Testing Units.
F. Within the Boundaries of Colorado
Contractor must maintain required licensing in Colorado and certification required by DMV. All testing
services provided by Contractor must be conducted within the boundaries of the State of Colorado.
7. NO COST AGREEMENT
The State shall have no financial obligations under this Agreement. Contractor shall be solely liable for the
costs associated with the implementation or continued operation of this Agreement, including but not
limited to post -audit costs, costs of computer hardware, software, services, personnel, networks, State
audits, licenses, transportation, mileage, travel, insurance, bonds, or administration.
8. REPORTING — NOTIFICATION
Reports, evaluations, and reviews required under this §8 shall be in accordance with the procedures of and
in such form as prescribed by the State.
A. Performance, Progress, Personnel, and Funds
The State shall submit an annual audit report to Contractor, containing an evaluation and review of
Contractor's performance and status of Contractor's obligations hereunder. Contractor shall comply
with all reporting requirements, if any, set forth in Exhibit A and 1 CCR 204-30 Rule 7, as currently
written or hereafter amended.
B. Litigation Reporting
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Within 10 days after being served with any pleading in a legal action filed with a court or administrative
agency, related to this Agreement or which may affect Contractor's ability to perform its obligations
hereunder, Contractor shall notify the State of such action and deliver copies of such pleadings to the
State's principal representative as identified herein. If the State's principal representative is not then
serving, such notice and copies shall be delivered to the Executive Director of Colorado Department of
Revenue.
C. Performance Outside the State of Colorado and/or the United States
[Not applicable if Contract Funds include any federal funds] Following the Effective Date,
Contractor shall provide written notice to the State, in accordance with §17 (Notices and
Representatives), within 20 days of the earlier to occur of Contractor's decision to perform, or its
execution of an agreement with a Subcontractor to perform, Services outside the State of Colorado
and/or the United States. Such notice shall specify the type of Services to be performed outside the
State of Colorado and/or the United States and the reason why it is necessary or advantageous to
perform such Services at such location or locations. All notices received by the State pursuant to this
§8.0 shall be posted on the Colorado Department of Personnel & Administration's website. Knowing
failure by Contractor to provide notice to the State under this §8.0 shall constitute a material breach of
this Agreement.
D. Noncompliance
Contractor's failure to provide reports and notify the State in a timely manner in accordance with this §8
constitutes a breach of this Agreement and may result in termination of this Agreement as provided
under this Agreement.
9. CONTRACTOR RECORDS
A. Maintenance
Contractor shall make, keep, maintain, and allow inspection and monitoring by the State of a complete
file of all records, documents, communications, notes and other written materials, electronic media files,
and communications, pertaining in any manner to the Work or the delivery of Services or Goods
hereunder. Contractor shall maintain such records until the last to occur of: (a) a period of three years
after the date this Agreement expires or is sooner terminated, or (b) the resolution of any pending
Agreement matters, or (c) if an audit is occurring, or Contractor has received notice that an audit is
pending, until such audit has been completed and its findings have been resolved (collectively, the
"Record Retention Period").
B. Inspection
Contractor shall permit the State, the federal government and any other duly authorized agent of a
governmental agency to audit, inspect, examine, excerpt, copy and/or transcribe Contractor's records
related to this Agreement during the Record Retention Period for a period of three years following
termination of this Agreement or final payment hereunder, whichever is later, to assure compliance with
the terms hereof or to evaluate performance hereunder. The State reserves the right to inspect the Work
at all reasonable times and places during the term of this Agreement, including any extensions or
renewals. If the Work fails to conform to the requirements of this Agreement, the State may require
Contractor promptly to bring the Work into conformity with Agreement requirements, at Contractor's
sole expense. If the Work cannot be brought into conformance by re -performance or other corrective
measures, the State may require Contractor to take necessary action to ensure that future performance
conforms to Agreement requirements and exercise the remedies available under this Agreement, at law
or in equity, in lieu of or in conjunction with such corrective measures.
C. Monitoring
Contractor shall permit the State, the Federal Government, and governmental agencies having
jurisdiction, in their sole discretion, to monitor all activities conducted by Contractor pursuant to the
terms of this Agreement using any reasonable procedure, including, but not limited to: internal
evaluation procedures, examination of program data, special analyses, on-site checking, formal audit
examinations, or any other procedures. All monitoring controlled by the State shall be performed in a
manner that shall not unduly interfere with Contractor's performance hereunder.
D. Final Audit Report
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If an audit is performed on Contractor's records for any fiscal year covering a portion of the term of this
Agreement, Contractor shall submit a signed copy of the final audit report to the State or its principal
representative at the address specified herein.
E. Additional Recording and Auditing Requirements
The Contractor shall comply with the recording and auditing requirements described in 1 CCR 204-30
Rule 7, as currently written or hereafter amended, including, without limitation, Rule 7(M).
10. CONFIDENTIAL INFORMATION -STATE RECORDS
Contractor shall comply with the provisions of this §10 if it becomes privy to confidential information in
connection with its performance hereunder. Confidential information includes, but is not necessarily limited
to, any state records, personnel records, and information concerning individuals. Such information shall not
include information required to be disclosed pursuant to the Colorado Open Records Act, CRS §24-72-
200.1 et seq.
A. Confidentiality
Contractor shall keep all State records and information confidential at all times and comply with all laws
and regulations concerning confidentiality of information. Any request or demand by a third party for
State records and information in the possession of Contractor shall be immediately forwarded to the
State's principal representative.
B. Notification
Contractor shall notify its agent, employees and assigns who may come into contact with State records
and confidential information that each is subject to the confidentiality requirements set forth herein, and
shall provide each with a written explanation of such requirements before permitting them to access
such records and information.
C. Use, Security, and Retention
Confidential information of any kind shall not be distributed or sold to any third party or used by
Contractor or its agents in anyway, except as authorized by this Agreement or approved in writing by
the State. Contractor shall provide and maintain a secure environment that ensures confidentiality of all
State records and other confidential information wherever located. Confidential information shall not be
retained in any files or otherwise by Contractor or its agents, except as permitted in this Agreement or
approved in writing by the State.
D. Disclosure -Liability
Disclosure of State records or other confidential information by Contractor for any reason may be cause
for legal action by third parties against Contractor, the State or their respective agents. Contractor shall
indemnify, save, and hold harmless the State, its employees and agents, against any and all claims,
damages, liability and court awards including costs, expenses, and attorney fees and related costs,
incurred as a result of any act or omission by Contractor, or its employees, agents, subcontractors, or
assignees pursuant to this §10.
11. REPRESENTATIONS AND WARRANTIES
Contractor makes the following specific representations and warranties, each of which was relied on by the
State in entering into this Agreement.
A. Standard and Manner of Performance
Contractor shall perform its obligations hereunder in accordance with the highest standards of care, skill
and diligence in Contractor's industry, trade, or profession and in the sequence and manner set forth in
this Agreement. Without limitation, Contractor shall comply with all requirements of 1 CCR 204-30
Rule 7, as currently written or hereafter amended, and other applicable provisions and laws.
B. Legal Authority — Contractor Signatory
Contractor warrants that it possesses the legal authority to enter into this Agreement and that it has taken
all actions required by its procedures, and by-laws, and/or applicable laws to exercise that authority, and
to lawfully authorize its undersigned signatory to execute this Agreement, or any part thereof, and to
bind Contractor to its terms. If requested by the State, Contractor shall provide the State with proof of
Contractor's authority to enter into this Agreement within fifteen (15) days of receiving such request.
C. Licenses, Permits, Etc.
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Contractor represents and warrants that as of the Effective Date it has, and that at all times during the
term hereof it shall have and maintain, at its sole expense, all licenses, certifications, approvals,
insurance, permits, and other authorizations required by law to perform its obligations hereunder,
without reimbursement by the State. Additionally, all employees of Contractor performing Services
under this Agreement shall hold all required licenses or certifications, if any, to perform their
responsibilities. Contractor, if a foreign corporation or other foreign entity transacting business in the
State of Colorado, further warrants that it currently has obtained and shall maintain any applicable
certificate of authority to transact business in the State of Colorado and has designated a registered agent
in Colorado to accept service of process. Any revocation, withdrawal or non -renewal of licenses,
certifications, approvals, insurance, permits or any such similar requirements necessary for Contractor
to properly perform the terms of this Agreement is a material breach by Contractor and constitutes
grounds for termination of this Agreement.
L The Contractor shall comply with the licensing requirements described in 1 CCR 204-30 Rule 7, as
currently written or hereafter amended.
D. Application
The information, representations, and warranties set forth in the application for approval or renewal of
certification submitted by Contractor to the State remain true and correct as of the Effective Date.
12. SURETY BONDS
This Agreement incorporates by reference Code of Federal Regulations, Title 49, Subtitle B, Chapter I,
Subchapter C, parts 171 and 172, and Code of Federal Regulations, Title 49, Subtitle B, Chapter III in
their current form and as they may be hereafter amended. As an agency of government or Colorado
school district that will administer CDL driving tests outside of their unit, Contractor must maintain a
bond in the amount of five thousand dollars ($5,000). A surety company authorized to do business with
the State must execute the bond. The coverage required hereunder shall be issued by insurance
companies satisfactory to Contractor and the State. Such bond must inure to the benefit of the State and
shall be in force through the term of the Agreement, including any extensions. A certificate evidencing
coverage must be delivered to the State prior to execution of the Agreement and prior to each
subsequent renewal. The bond must be for the use and benefit of the State in the event of a monetary
loss within the limitations of the bond, attributable to the willful, intentional, or negligent conduct of the
Testing Unit or its agent(s) or employees(s). If the amount of the bond is decreased or terminated, or if
there is a final judgment outstanding on the bond, the testing unit cannot test outside their unit. The
bond contract shall contain a provision that indicates that any modifications or cancellation of such bond
can occur only sixty (60) days after written notice to the State. Failure of Contractor to maintain the
required surety bond may result, in the State's sole discretion, in the immediate termination of this
Agreement. The bond shall be for the use and benefit of the State in the event of a monetary loss within
the limitations of the bond attributable to the willful, intentional, or negligent conduct of Contractor, or
its agents or employees. The Contractor shall comply with the bond requirements described in 1 CCR
204-30 Rule 7, as currently written or hereafter amended, including, without limitation, Rule 7(N).
A. The bond may be used to indemnify against loss or damage arising out of the Contractor's breach of any
contract between the Contractor and a CDL candidate.
B. If the amount of the bond is decreased or terminated, or if there is a final judgment outstanding on the
bond, the Contractor's certification shall be suspended. The suspension shall continue until satisfactory
steps are taken to restore the original amount of the bond.
C. The State shall be named as the beneficiary on the bond and the bond must be held in the name of the
State.
13. INSURANCE
Contractor shall obtain and maintain insurance as specified in this section at all times during the term of this
Agreement. All policies evidencing the insurance coverage required hereunder shall be issued by insurance
companies satisfactory to Contractor and the State.
A. Contractor - Public Entities
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If Contractor is a "public entity" within the meaning of the Colorado Governmental Immunity Act, CRS
§24-10-101, et.seq., as amended (the "GIA"), then Contractor shall maintain 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. Contractor shall show proof of such insurance satisfactory to the State, if
requested by the State. Contractor shall require each contract with a Subcontractor that is a public entity, to
include the insurance requirements necessary to meet such Subcontractor's liabilities under the GIA.
ff. Non -Public Entities
If Contractor is not a "public entity" within the meaning of the GIA, Contractor shall obtain and
maintain during the term of this Agreement insurance coverage and policies meeting the same
requirements set forth in §14.B with respect to Subcontractors that are not "public entities".
B. Contractors — Subcontractors
Contractor shall require each contract with Subcontractors other than those that are public entities,
providing Goods or Services in connection with this Agreement, to include insurance requirements
substantially similar to the following:
i. Worker's Compensation
Worker's Compensation Insurance as required by State statute, and Employer's Liability Insurance
covering all of Contractor's employees acting within the course and scope of their employment.
ii. General Liability
Commercial General Liability Insurance written on ISO occurrence form CG 00 01 10/93 or
equivalent, covering premises operations, fire damage, independent contractors, products and
completed operations, blanket contractual liability, personal injury, and advertising liability with
minimum limits as follows: (a) $1,000,000 each occurrence; (b) $1,000,000 general aggregate; (c)
$1,000,000 products and completed operations aggregate; and (d) $50,000 any one fire.
If any aggregate limit is reduced below $1,000,000 because of claims made or paid, Contractor shall
immediately obtain additional insurance to restore the full aggregate limit and furnish to Contractor
a certificate or other document satisfactory to Contractor showing compliance with this provision.
iii. Automobile Liability
Automobile Liability Insurance covering any auto (including owned, hired and non -owned autos)
with a minimum limit of $1,000,000 each accident combined single limit.
iv. Additional Insured
The State shall be named as additional insured on all Commercial General Liability and Automobile
Liability Insurance policies (leases and construction contracts require additional insured coverage
for completed operations on endorsements CG 2010 11/85, CG 2037, or equivalent) required of
Contractor hereunder.
v. Primacy of Coverage
Coverage required of Contractor shall be primary over any insurance or self-insurance program
carried by the State.
vi. Cancellation
The above insurance policies shall include provisions preventing cancellation or non -renewal
without at least thirty (30) days prior notice to Contractor and Contractor shall forward such notice
to the State in accordance with §17 (Notices and Representatives) within seven days of
Contractor's receipt of such notice.
vii. Subrogation Waiver
All insurance policies in any way related to this Agreement and secured and maintained by
Contractor as required herein shall include clauses stating that each carrier shall waive all rights of
recovery, under subrogation or otherwise, against Contractor or the State, its agencies, institutions,
organizations, officers, agents, employees, and volunteers.
C. Certificates
Contractor shall provide certificates showing insurance coverage or affidavits of self-insurance required
hereunder to the State within seven (7) business days if the State so requests. No later than fifteen (15)
days prior to the expiration date of any such coverage, Contractor shall deliver to the State certificates of
insurance evidencing renewals thereof. In addition, upon request by the State at any other time during
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the term of this Agreement, Contractor shall, within ten (10) days of such request, supply to the State
evidence satisfactory to the State of compliance with the provisions of this §14.
14. BREACH
A. Defined
In addition to any breaches specified in other sections of this Agreement, the failure of either Party to
perform any of its material obligations hereunder, in whole or in part or in a timely or satisfactory
manner, constitutes a breach. The institution of proceedings under any bankruptcy, insolvency,
reorganization or similar law, by or against Contractor, or the appointment of a receiver or similar
officer for Contractor or any of its property, which is not vacated or fully stayed within 20 days after the
institution or occurrence thereof, shall also constitute a breach.
B. Notice and Cure Period
In the event of a breach, notice of such shall be given in writing by the State to Contractor in the manner
provided in §17 and the State may exercise any of the remedies set forth in §16 or 1 CCR 204-30 Rule
7, as currently written or hereafter amended. Notwithstanding anything to the contrary herein, the State,
in its sole discretion, need not provide advance notice and may immediately terminate this Agreement in
whole or in part if reasonably necessary to preserve public safety or to prevent immediate public crisis.
16. REMEDIES
If Contractor is in breach under any provision of this Agreement, the State shall have all of the remedies
listed in this §16 in addition to all other remedies set forth in other sections of this Agreement following
the notice set forth in §15.B. The State may exercise any or all of the remedies available to it, in its sole
discretion, concurrently or consecutively. Without limitation, the State's remedies include those
described in this §16 as well as those remedies provided for in I CCR 204-30 Rule 7, as currently
written or hereafter amended, including Rule 7(0).
A. Termination for Cause and/or Breach
The State may terminate this entire Agreement or any part of this Agreement. Exercise by the State of
this right shall not be a breach of its obligations hereunder. Contractor shall continue performance of
this Agreement to the extent not terminated, if any.
i. Obligations and Rights
To the extent specified in any termination notice, Contractor shall not incur further obligations or
render further performance hereunder past the effective date of such notice, and shall terminate
outstanding orders and subcontracts with third parties. However, Contractor shall complete and
deliver to the State all Work, Services and Goods not cancelled by the termination notice and may
incur obligations as are necessary to do so within this Agreement's terms. At the sole discretion of
the State, Contractor shall assign to the State all of Contractor's right, title, and interest under such
terminated orders or subcontracts. Upon termination, Contractor shall take timely, reasonable and
necessary action to protect and preserve property in the possession of Contractor in which the State
has an interest. All materials owned by the State in the possession of Contractor shall be
immediately returned to the State. All Work Product, at the option of the State, shall be delivered
by Contractor to the State and shall become the State's property.
IL Damages and Withholding
Notwithstanding any other remedial action by the State, Contractor shall remain liable to the State
for any damages sustained by the State by virtue of any breach under this Agreement by Contractor.
Contractor shall be liable for excess costs incurred by the State in procuring from third parties
replacement Work, Services or substitute Goods as cover.
B. Early Termination in the Public Interest
The State is entering into this Agreement for the purpose of carrying out the public policy of the State of
Colorado, as determined by its Governor, General Assembly, and/or Courts. If this Agreement ceases to
further the public policy of the State, the State, in its sole discretion, may terminate this Agreement in
whole or in part. Exercise by the State of this right shall not constitute a breach of the State's
obligations hereunder. This subsection shall not apply to a termination of this Agreement by the State
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for cause or breach by Contractor, which shall be governed by §15 or as otherwise specifically provided
for herein.
i. Method and Content
The State shall notify Contractor of such termination in accordance with §17. The notice shall
specify the effective date of the termination and whether it affects all or a portion of this Agreement.
ii. Obligations and Rights
Upon receipt of a termination notice, Contractor shall be subject to and comply with the same
obligations and rights set forth in §16.A.i.
C. Remedies Not Involving Termination
The State, in its sole discretion, may exercise one or more of the following remedies in addition to other
remedies available to it:
i. Suspend Performance
Suspend Contractor's performance with respect to all or any portion of this Agreement pending
necessary corrective action as specified by the State. Contractor shall promptly cease performance
in accordance with the State's directive.
ii. Removal
Notwithstanding any other provision herein, the State may demand immediate removal of any of
Contractor's employees whom the State deems incompetent, careless, insubordinate, unsuitable, or
otherwise unacceptable, or whose continued relation to this Agreement is deemed to be contrary to
the public interest or the State's best interest.
iii. Intellectual Property
If Contractor infringes on a patent, copyright, trademark, trade secret or other intellectual property
right while performing its obligations under this Agreement, Contractor shall, at the State's option
(a) obtain for the State or Contractor the right to use such products and services; (b) replace any
Goods, Services, or other product involved with non -infringing products or modify them so that
they become non -infringing; or (c) if neither of the foregoing alternatives are reasonably available,
remove any infringing Goods, Services, or products and refund the price paid therefore to the State.
17. NOTICES and REPRESENTATIVES
Each individual identified below is the principal representative of the designating Party. All notices
required to be given hereunder shall be hand delivered with receipt required or sent by certified or registered
mail to such Party's principal representative at the address set forth below. In addition to, but not in lieu of
a hard -copy notice, notice also may be sent by e-mail to the e-mail addresses, if any, set forth below. Either
Party may from time to time designate by written notice substitute addresses or persons to whom such
notices shall be sent. Unless otherwise provided herein, all notices shall be effective upon receipt.
A. DMV:
State of Colorado/Department of Revenue
Driver's License
1881 Pierce Street, Room 128
Lakewood, CO 80214
Attn: Carol Olds
Phone: 303-205-8412
carol. of ds@state.co.us
With a Copy To:
State of Colorado/Department of Revenue
EDO/PACS
Contract Services
1375 Sherman St, Room 429
Denver, CO 80203
B. Contractor:
Routing # TAA 16/83169
Town of Vail
241 S Frontage Rd., STE 4
Vail, CO 81657
18. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE
Any software, research, reports, studies, data, photographs, negatives or other documents, drawings, models,
materials, or Work Product of any type, including drafts, prepared by Contractor in the performance of its
obligations under this Agreement shall be the exclusive property of the State and, all Work Product shall be
delivered to the State by Contractor upon completion or termination hereof. The State's exclusive rights in
such Work Product shall include, but not be limited to, the right to copy, publish, display, transfer, and
prepare derivative works. Contractor shall not use, willingly allow, cause or permit such Work Product to
be used for any purpose other than the performance of Contractor's obligations hereunder without the prior
written consent of the State.
19. GOVERNMENTAL IMMUNITY
Liability for claims for injuries to persons or property arising from the negligence of the State of Colorado,
its departments, institutions, agencies, boards, officials, and employees is controlled and limited by the
provisions of the Governmental Immunity Act, CRS §24-10-101, et seq. and the risk management statutes,
CRS §24-30-1501, et seq., as amended.
20. GENERAL PROVISIONS
A. Assignment and Subcontracts
Contractor's rights and obligations hereunder are personal and may not be transferred, assigned or
subcontracted without the prior, written consent of the State. Any attempt at assignment, transfer, or
subcontracting without such consent shall be void. All assignments, subcontracts, or Subcontractors
approved by the State are subject to all of the provisions hereof. Contractor shall be solely responsible
for all aspects of subcontracting arrangements and performance.
B. Binding Effect
Except as otherwise provided in §20.A, all provisions herein contained, including the benefits and
burdens, shall extend to and be binding upon the Parties' respective heirs, legal representatives,
successors, and assigns.
C. Captions
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.
D. Counterparts
This Agreement may be executed in multiple identical original counterparts, all of which shall constitute
one agreement.
E. Entire Understanding
This Agreement represents the complete integration of all understandings between the Parties and all
prior representations and understandings, oral or written, are merged herein. Prior or contemporaneous
additions, deletions, or other changes hereto shall not have any force or affect whatsoever, unless
embodied herein.
F. Indemnification
Contractor shall indemnify, save, and hold harmless the State, its employees and agents, against any and
all claims, damages, liability and court awards including costs, expenses, and attorney fees and related
costs, incurred as a result of any act or omission by Contractor, or its employees pursuant to the terms of
this Agreement; however, the provisions hereof shall not be construed or interpreted as a waiver,
express or implied, of any of the immunities, rights, benefits, protection, or other provisions, of the
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Routing # TAA 16/83169
Colorado Governmental Immunity Act, CRS §24-10-101 et seq., or the Federal Tort Claims Act, 28
U.S.C. 2671 et seq., as applicable, as now or hereafter amended.
G. Jurisdiction and Venue
All suits or actions related to this Agreement shall be filed and proceedings held in the State of Colorado
and exclusive venue shall be in the City and County of Denver.
H. Modification
i. By the Parties
Except as specifically provided to the contrary in this Agreement, modifications of this Agreement
shall not be effective unless agreed to in writing by the Parties in an amendment to this Agreement,
signed and approved in accordance with applicable Colorado State law.
ii. By Operation of Law
This Agreement is subject to such modifications as may be required by changes in federal or
Colorado State law, or their implementing regulations. Any such required modification
automatically shall be incorporated into and be part of this Agreement on the effective date of such
change, as if fully set forth herein.
I. Order of Precedence
The provisions of this Agreement shall govern the relationship of the Parties. In the event of conflicts
or inconsistencies between this Agreement and its exhibits and attachments, including, but not limited
to, those provided by Contractor, such conflicts or inconsistencies shall be resolved by reference to the
documents in the following order of priority:
I. Colorado Special Provisions,
u. The provisions of the main body of this Agreement,
iii. Exhibit A.
J. Severability
Provided this Agreement can be executed and performance of the obligations of the Parties
accomplished within its intent, the provisions hereof are severable and any provision that is declared
invalid or becomes inoperable for any reason shall not affect the validity of any other provision hereof,
provided that the Parties can continue to perform their obligations under this Agreement in accordance
with its intent.
K. Survival of Certain Agreement Terms
Notwithstanding anything herein to the contrary, provisions of this Agreement requiring continued
performance, compliance, or effect after termination hereof, shall survive such termination and shall be
enforceable by the State if Contractor fails to perform or comply as required.
L. Taxes
The State is exempt from all federal excise taxes under IRC Chapter 32 (No. 84-730123K) and from all
State and local government sales and use taxes under CRS §§39-26-101 and 201 et seq. Such
exemptions apply when materials are purchased or services are rendered to benefit the State; provided
however, that certain political subdivisions (e.g., City of Denver) may require payment of sales or use
taxes even though the product or service is provided to the State. Contractor shall be solely liable for
paying such taxes as the State is prohibited from paying or reimbursing Contractor for such taxes.
M. Third Party Beneficiaries
Enforcement of this Agreement and all rights and obligations hereunder are reserved solely to the
Parties. Except as provided to the contrary in §18, any services or benefits which third parties receive as
a result of this Agreement are incidental to the Agreement, and do not create any rights for such third
parties.
N. Waiver
Waiver of any breach under a term, provision, or requirement of this Agreement, or any right or remedy
hereunder, whether explicitly or by lack of enforcement, 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.
O. CORA Disclosure
11
Routing # TAA 16/83169
To the extent not prohibited by federal law, this Agreement and the performance measures and
standards under CRS §24-103.5-101, if any, are subject to public release through the Colorado Open
Records Act, CRS §24-72-101, et. seq.
P. Gifts / Gratuities
i. The Contractor shall not, by itself or through any officer, director, employee, agent, partner,
subcontractor or other representative, offer, give, grant, or otherwise deliver any gift, gratuity, or
anything of monetary or non -monetary value to any employee of the State or to any member of
his/her immediate family or anyone living in his/her household. Failure by Contractor to ensure
compliance with this provision may result, in the State's sole discretion, in immediate termination
of the Agreement or other remedies available in the Agreement.
ii. Contractor shall not, by itself or through any officer, director, employee, agent, partner,
subcontractor or other representative, receive or accept any gift, gratuity, or anything of monetary or
non -monetary value from any recipient of Contractor's services related to the performance of its
contractual duties or from any member of such client's immediate family or anyone living in his/her
household. Failure by Contractor to ensure compliance with this provision may result, in the State's
sole discretion, in immediate termination of the Contract or other remedies available in the
Agreement.
Q. Non -Exclusive Rights
It is understood and agreed by the Contractor that the State does not grant the Contractor exclusive
rights to provide services under this Agreement. The State reserves the right to contract with and
authorize the provision of equivalent services from persons and entities other than the Contractor, as
may be in the best interest of the State. This Agreement shall remain in full force and effect should the
State enter into other contracts for the same or similar goods and services as provided under this
Agreement.
R. Press Contacts/News Releases
Contractor shall not initiate any press and/or media contact nor respond to press/media requests
regarding this Agreement and/or any related matters concerning the State without the prior written
approval of the State.
S. Cooperation of the Parties
Contractor and the State agree to cooperate fully, to work in good faith, and to mutually assist each
other in the performance of this Agreement. In connection herewith, the Parties shall meet to resolve
problems associated with this Agreement. Neither party will unreasonably withhold its approval of any
act or request of the other to which the party's approval is necessary or desirable.
21. COLORADO SPECIAL PROVISIONS
These Special Provisions apply to all Agreements except where noted in italics.
A. CONTROLLER'S APPROVAL. CRS §24-30-202 (1).
[State Controller's Designee has reviewed and determined that this is a no -cost contract and does not
require further State Controller approval unless modifications are made within this document] This
Agreement shall not be valid until it has been approved by the Colorado State Controller or designee.
B. FUND AVAILABILITY. CRS §24-30-202(5.5).
Financial obligations of the State payable after the current fiscal year are contingent upon funds for that
purpose being appropriated, budgeted, and otherwise made available.
C. GOVERNMENTAL IMMUNITY
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, protections, or other provisions, of the Colorado
Governmental Immunity Act, CRS §24-10-101 et seq., or the Federal Tort Claims Act, 28 U.S.C.
§§ 1346(b) and 2671 et seq., as applicable now or hereafter amended.
D. INDEPENDENT CONTRACTOR
Contractor shall perform its duties hereunder as an independent contractor and not as an employee.
Neither Contractor nor any agent or employee of Contractor shall be deemed to be an agent or employee
of the State. Contractor and its employees and agents are not entitled to unemployment insurance or
12
Roudag # TAA 16/83169
workers compensation benefits through the State and the State shall not pay for or otherwise provide
such coverage for Contractor or any of its agents or employees. Unemployment insurance benefits will
be available to Contractor and its employees and agents only if such coverage is made available by
Contractor or a third party. Contractor shall pay when due all applicable employment taxes and income
taxes and local head taxes incurred pursuant to this Agreement. Contractor shall not have authorization,
express or implied, to bind the State to any agreement, liability or understanding, except as expressly set
forth herein. Contractor shall (a) provide and keep in force workers' compensation and unemployment
compensation insurance in the amounts required by law, (b) provide proof thereof when requested by
the State, and (c) be solely responsible for its acts and those of its employees and agents.
E. COMPLIANCE WITH LAW
Contractor shall strictly comply with all applicable federal and State laws, rules, and regulations in
effect or hereafter established, including, without limitation, laws applicable to discrimination and
unfair employment practices.
F. CHOICE OF LAW
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. Any provision
incorporated herein by reference which purports to negate this or any other Special Provision in whole
or in part shall not be valid or enforceable or available in any action at law, whether by way of
complaint, defense, or otherwise. Any provision rendered null and void by the operation of this
provision shall not invalidate the remainder of this Agreement, to the extent capable of execution.
G. BINDING ARBITRATION PROHIBITED
The State of Colorado does not agree to binding arbitration by any extra judicial body or person. Any
provision to the contrary in this Agreement or incorporated herein by reference shall be null and void.
H. SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00.
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
restrictions. Contractor hereby certifies and warrants that, during the term of this Agreement and any
extensions, Contractor has and shall maintain in place appropriate systems and controls to prevent such
improper use of public funds. If the State determines that Contractor is in violation of this provision, the
State may exercise any remedy available at law or in equity or under this Agreement, including, without
limitation, immediate termination of this Agreement and any remedy consistent with federal copyright
laws or applicable licensing restrictions.
1. EMPLOYEE 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 whatsoever in the service or property described in this Agreement. 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.
J. 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
Student 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 action.
K. PUBLIC CONTRACTS FOR SERVICES. CRS §8-17.5-101.
(Not applicable to agreements relating to the offer, issuance, or sale of securities, investment advisory
services or fund management services, sponsored projects, intergovernmental agreements, or
information technology services or products and services) Contractor certifies, warrants, and agrees
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Routing # TAA 16/93169
that it does not knowingly employ or contract with an illegal alien who will perform work under this
Agreement and will confirm the employment eligibility of all employees who are newly hired for
employment in the United States to perform work under this Agreement, through participation in the E -
Verify Program or the State 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 Agreement 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 Agreement. Contractor
(a) shall not use E -Verify Program or State program procedures to undertake pre-employment screening
of job applicants while this Agreement is being performed, (b) shall notify the Subcontractor and the
contracting State agency within three days if Contractor has actual knowledge that a Subcontractor is
employing or contracting with an illegal alien for work under this Agreement, (c) shall terminate the
subcontract if a Subcontractor does not stop employing or contracting with the illegal alien within three
days of receiving the notice, and (d) shall comply with reasonable requests made in the course of an
investigation, undertaken pursuant to CRS §8-17.5-102(5), by the Colorado Department of Labor and
Employment. If Contractor participates in the State program, Contractor shall deliver to the contracting
State agency, Institution of Higher Education or political subdivision, a written, notarized affirmation,
affirming that Contractor has examined the legal work status of such employee, and shall comply with
all of the other requirements of the State program. If Contractor fails to comply with any requirement of
this provision or CRS §8-17.5-101 et seq., the contracting State agency, institution of higher education
or political subdivision may terminate this Agreement for breach and, if so terminated, Contractor shall
be liable for damages.
L. PUBLIC CONTRACTS WITH NATURAL PERSONS. CRS §24-76.5-101
Contractor, if a natural person eighteen (18) years of age or older, hereby swears and affirms under
penalty of perjury that he or she (a) is a citizen or otherwise lawfully present in the United States
pursuant to federal law, (b) shall comply with the provisions of CRS §24-76.5-101 et seq., and (c) has
produced one form of identification required by CRS §24-76.5-103 prior to the effective date of this
Agreement.
SPs Effective 1/1/09
THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK
14
22. SIGNATURE PAGE
Contract Routing Number TAA 16/83169
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.
CONTRACTOR
Town of Vail
By:
Title: 7 -own mAMA;jd V
Date:
By:
Title:
•Signature
2nd Contractor Signature if Needed
Date:
*Signature
15
STATE OF COLORADO
John W. Hickenlooper, Governor
Colorado Department of Revenue
Barbara J. Brohl, Executive Director
By:
Mike Dixon, Senior Director
Division of Motor Vehicles
Date:
EXHIBIT A — STATEMENT OF WORK
This Exhibit A — Statement of Work is part of that certain contract, CMS #TAA 16/83169 ("Agreement"), by
and between Town of Vail ("Contractor"), and the State of Colorado acting by and through the Colorado
Department of Revenue, Division of Motor Vehicles, Driver Testing and Education ("DOR", "DMV" or
"State"). In the event of a conflict or inconsistency between the Agreement and its exhibits and attachments,
such conflict or inconsistency shall be resolved in the manner specified in §20.I Order of Precedence of the
main body of the Agreement. Any references to defined terms that are not specifically defined herein shall have
the same meaning as those set forth in the Agreement and its Exhibits.
The Contractor shall provide the following testing services to the State and applicants in accordance with this
Exhibit A, 1 CCR 204-30 Rule 7, as currently written or hereafter amended, State laws, and pursuant to the
terms of this Agreement.
A. On behalf of the State, Contractor shall competently provide CDL driving skills testing services to the
State and applicants pursuant to and consistent with the intent of all applicable federal and State laws,
the terms of this Agreement; the Rules and Regulations for the Commercial Driver's License Program, 1
CCR 204-30, Rule 7, as currently written or hereafter amended, and the current CDL Tester's manual,
as currently written or hereafter updated, and is hereby incorporated by reference. The CDL Tester's
manual is available by request through the DMV.
B. Contractor shall at all times have a valid signed Agreement with the State prior to providing the services
pursuant to this Agreement. Additionally, Contractor and the CDL Driving Skills Tester shall be in
possession of a valid license in accordance with 1 CCR 204-30 Rule 7, as currently written or hereafter
amended, prior to providing Services authorized by this Agreement.
C. The Contractor shall have written permission from the landowner to administer the CDL vehicle basic
control tests on areas not owned by the Contractor. This written permission, substantially in a form
equivalent to Attachment A, attached and incorporated herein, shall be submitted to the State for
approval prior to testing.
A-1
Attachment A
LAND USE AUTHORIZATION
The land used for the purposes of driver skill testing is not owned by the CDL Testing Unit and requires written
permission from the respective landlord or land owner. Please complete this form and submit to DMV in
accordance with §17 of the Agreement for approval prior to conducting driver skill testing on this property.
This authorization confirms that
lawful property owner of the land located at:
be used for the purposes of CDL driver skill testing.
of Motor Vehicles for inspections at any time.
(name of property owner) is the
This property will
Access to the testing area is granted to Colorado Division
(property owner) hereby grants permission to
(Testing Organization), for the use of his/her land for the above stated purposes.
Landowner (signature)
Date:
This authorization expires on
Phone Number
(Date, if applicable)
For: CDL Compliance Section
A-2
EXHIBIT B — OPTION RENEWAL LETTER
Date:
Original Contract CMS #:
Option Letter # _
1
CMS Routing #:
TAA 16/83169
TAA /
1. In accordance with §5.0 of the Original Agreement, CMS #TAA 16/83169 ("Agreement") by and between
Town of Vail ("Contractor") and the State of Colorado acting by and through the Colorado Department of
Revenue, Division of Motor Vehicles ("DMV" or "State"), the State hereby exercises its option for an
additional term beginning and ending on under the same terms and
conditions specified in the Agreement. This is the of two renewals available.
2. The effective date of this Option Letter is upon approval of DOR.
STATE OF COLORADO
John W. Hickenlooper, Governor
Colorado Department of Revenue
Barbara J. Brohl, Executive Director
By: Mike Dixon, Senior Director
Division of Motor Vehicles
Date:
B-1