Attachment C Model Contract OPS with Exhibits for RFP.pdf

State of Colorado Department of Labor and Employment

Petroleum Storage Tank Assessment, Remediation and Emergency Response

Request for Proposals KATA 2016000249-P

Attachment C

Model Contract

CDLE Routing # 2017-XXXX

STATE OF COLORADO

COLORADO DEPARTMENT OF LABOR AND EMPLOYMENT

MASTER CONTRACT WITH

TABLE OF CONTENTS

1. PARTIES

2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY

3. RECITALS

4. DEFINITIONS

5. TERM

6. TWO-MONTH EXTENSION

7. WORK PLAN

8. TASK ORDERS

9. WORK UNDER A TASK ORDER LETTER

10. EXTENSION OF TASK ORDER PERFORMANCE-TASK ORDER AMENDMENT

11. UNANTICIPATED EXPENSES

12. EMERGENCY WORK

13. ADDITIONAL REQUIREMENTS AND RESPONSIBILITIES OF CONTRACTOR

14. TASK ORDER TERMINATION

15. PAYMENTS TO CONTRACTOR

16. INVOICING

17. REPORTING - NOTIFICATION

18. CONTRACTOR RECORDS

19. CONFIDENTIAL INFORMATION-STATE RECORDS

20. CONFLICTS OF INTEREST

21. CONTRACTOR REPRESENTATIONS AND WARRANTIES

22. INDEMNIFICATION

23. NONDISCRIMINATION

24. MBE/WBE REPORTING

25. INSURANCE

26. BREACH

27. REMEDIES

28. REMEDIES NOT INVOLVING TERMINATION

29. NOTICES AND REPRESENTATIVES

30. KEY PERSONNEL

31. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE

32. GOVERNMENTAL IMMUNITY

33. STATEWIDE CONTRACT MANAGAEMENT SYSTEM

34. CRIMINAL BACKGROUND CHECKS

35. GOVERNOR'S EXECUTIVE ORDERS FOR GREENING OF STATE

GOVERNMENT

36. GENERAL PROVISIONS

37. COLORADO SPECIAL PROVISIONS

38. SIGNATURE PAGE

PARTIES 1.

This Master Contract (“Contract” or “Master Contract”) is entered into by and between , (“Contractor” or “ ”), and the STATE OF COLORADO acting by and through the Colorado Department of Labor and Employment, on behalf of the Division of Oil and Public Safety (“State” or “OPS”). Contractor and the State agree to the following terms and conditions.

EFFECTIVE DATE AND NOTICE OF NONLIABILITY 2.

This Contract shall not be effective or enforceable until it is approved and signed by the Colorado State Controller or designee (“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.

RECITALS 3.

AUTHORITY, APPROPRIATION, AND APPROVAL A.

Authority to enter into this Contract exists in C.R.S. §§ 8-20.5-206(3) and §§ 303(3), and funds have been budgeted, appropriated and otherwise made available pursuant to C.R.S. §§ 8-20.5- 206(3) and 303(3), the Environmental Protection Agency (EPA), and the LUST (Leaking Underground Storage Tanks) Trust Fund, and a sufficient unencumbered balance thereof remains available for payment. Required approvals, clearance, and coordination have been accomplished from and with appropriate agencies.

CONSIDERATION B.

The Parties acknowledge that the mutual promises and covenants contained herein and other good and valuable consideration are sufficient and adequate to support this Contract.

CONTRACT PURPOSE C.

This Contract is for the retention of qualified Contractors who will potentially perform i.

services related to assessment, monitoring, and remediation of Petroleum Contamination for specific sites in the State of Colorado, with funding and specific tasks for services initiated through executed Task Orders, Emergency Work, and Unanticipated Expenses (collectively ““Commitment Method”“) , as defined further herein.

Nothing in this Master Contract shall apply to hazardous waste or hazardous materials as ii.

defined in the U.S. Code of Federal Regulations 40 CFR Parts 238-282, except those encountered as a part of investigative work and further handled as specified in this Contract.

This Contract is not exclusive to Contractor. The State reserves the right to award iii.

particular site work to any one or more of the Contractors that State has awarded pursuant to Paragraph E below.

Contractor understands and agrees that there is no guaranteed minimum by the State to iv.

issue work to Contractor under this Master Agreement.

REFERENCES D.

All references in this Contract 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.

CONTRACTOR AWARD E.

State issued an award to Contractor for the provision of possible services as authorized under C.R.S. § 8-20.5-206(3) and §8-20.5 303(3), in accordance with the applicable provisions of the Colorado Procurement Code, CRS § 24-103-203, and Request for Proposal (“RFP”)

#KATA2016000249-P.

DEFINITIONS 4.

The following terms as used herein shall be construed and interpreted as follows:

COMMITMENT METHOD A.

"Commitment Method" means the method of authorization by the State for Contractor's Services at a designated site, and collectively includes Task Orders, Emergency Work, and Unanticipated Expenses.

CONTRACT B.

“Contract” means this Contract and its terms and conditions, attached exhibits and documents incorporated by reference herein under the terms of this Contract, and any future modifying agreements, exhibits, attachments or references incorporated herein pursuant to Colorado State law, Fiscal Rules, and State Controller Policies. All references to “Contract” shall have the same definition as “Master Contract”.

CONTRACT FUNDS C.

“Contract Funds” means funds available for payment by the State to Contractor pursuant to this Contract.

DAYS D.

“Days” means calendar days, unless otherwise specified.

ECONOMIC FEASIBILITY SUMMARY OR EFS E.

“Economic Feasibility Summary” or “EFS” means a detailed listing of costs for a Work Plan proposal.

EMERGENCY WORK F.

“Emergency Work” means emergency response and initial abatement activities to protect human health and prevent further migration of contaminants into the environment. Initial abatement activities are also performed under Task Orders.

EVALUATION G.

“Evaluation” means the process of examining Contractor’s Work and rating it based on criteria established in §6 and Exhibits A and B.

EXHIBITS AND OTHER ATTACHMENTS H.

The following Exhibits are attached hereto and incorporated by reference herein:

• Exhibit A - Statement of Work and Contractor's Rates

• Exhibit B -Task Order (Letter)

• Exhibit C -Task Order (Amendment)

• Exhibit D - Notice to Proceed

• Exhibit E - Model Invoice

• Exhibit F - Key Personnel and Verbal Authorization

• Exhibit G - Option Letter

• Exhibit H - Vendor/Contractor Disclosure Statement

• Exhibit I - Federal Assurances and Certifications

• Exhibit J - Federal Funding Accountability and Transparency Act of 2006 (FFATA), as amended.

GOODS I.

“Goods” means tangible material acquired, produced, or delivered by Contractor either separately or in conjunction with the Services Contractor provides under this Contract.

MASTER CONTRACT J.

“Master Contract” means this Contract, its terms and conditions, attached exhibits, and any future modifying agreements, exhibits, attachments or references incorporated herein pursuant to

Colorado State law, Fiscal Rules, and State Controller Policies. All references to “Master Contract” in this agreement shall have the same definition as “Contract”.

NOTICE TO PROCEED K.

“Notice to Proceed” means the written notice to Contractor from the State authorizing Contractor to begin Work under authorized Task Orders.

OPTION LETTER L.

“Option Letter” means the State’s commitment document, in form substantially similar to Exhibit G, unilaterally signed by the State, authorizing the extension of the initial term of this Contract under the same terms and conditions.

PARTY OR PARTIES M.

“Party” means the State or Contractor and “Parties” means both the State and Contractor.

PETROLEUM CONTAMINATION N.

“Petroleum Contamination” means contamination of any media (e.g. soil, water, or air) caused by the release of petroleum products (including, but not limited to, motor fuels, jet fuels, distillate fuel oils, residual fuel oils, lubricants, petroleum solvents, and used oils).

REASONABLE COST GUIDELINES O.

“Reasonable Cost Guidelines” (“RCG”) means a guidance document set forth by the the Colorado Petroleum Storage Tank Committee, as amended from time to time, to control costs in order to preserve the solvency of the Colorado Petroleum Storage Tank Fund (“PSTF”).

REVIEW P.

“Review” means examining Contractor’s Work to ensure that it is adequate, accurate, correct and in accordance with the requirements of this Contract, and with the criteria established in §7 and Exhibit A and Exhibit B.

RFP Q.

"RFP" means Request for Proposal # KATA 2016000249-P, relevant provisions of which are incoporated into Exhibit A, Statement of Work.

SERVICES R.

“Services” means the required services to be performed by Contractor pursuant to this Contract, including, but not limited to Site Assessment/Characterization, Corrective Action/Remediation, and Emergency Work.

STATE SITE MANAGER S.

"State Site Manager" means the Director of the Division of Oil and Public Safety or their designee responsible for overseeing the remediation at a site.

SUBCONTRACTOR T.

“Subcontractor” means a third-party, if any, engaged by Contractor to aid in performance of its obligations.

TASK ORDERS U.

“Task Orders” means, collectively, the Task Order Letters and Task Order Amendments that are issued in writing by the State under the provisions of this Contract, and shall be Contractor’s authorization for Services. Model Task Order Letters and Task Order Amendments are attached as Exhibits B & C, and may be modified from time to time by the State.

UNANTICIPATED EXPENSES V.

“Unanticipated Expenses” means unforeseen Work that must be performed outside the Task Order while Contractor is mobilized onsite.

WORK W.

“Work” means the tasks and activities Contractor is required to perform to fulfill its obligations under this Contract and under a Commitment Method, including the performance of the Services and delivery of the Goods.

WORK PLAN X.

“Work Plan” means Contractor’s proposedactivities, site map(s), and Economic Feasibility Study (“EFS”) that is approved by the State and attached to and incoporated into a Commitment Method.

WORK PRODUCT Y.

“Work Product” means the tangible or intangible results of Contractor’s Work, including, but not limited to, software, research, reports, studies, data, photographs, or other finished or unfinished documents, drawings, models, surveys, maps, materials, or work product of any type, including drafts.

TERM 5.

CONTRACT INITIAL TERM-WORK COMMENCEMENT A.

The Parties’ respective potential performance under this Contract will on the later of either the Effective Date or November 1, 2016. This Contract shall terminate on October 31, 2019 unless sooner terminated or further extended as specified elsewhere herein. If Commitment Methods are authorized to Contractor under this Contract, Work shall be performed in accordance with this Contract including without limitation, §§7, 8, and 9 below and Exhibit A.

STATE’S OPTION TO EXTEND B.

The State may require continued performance for a period of two (2) years at the same rates and same terms specified in the Contract. If the State exercises this option, it shall provide written notice to Contractor at least 30 days prior to the end of the current contract term in form substantially equivalent to Exhibit G. If exercised, the provisions of the Option Letter shall become part of and be incorporated into this Contract. The total duration of this Contract, including the exercise of any options under this clause, shall not exceed five (5) years.

TWO-MONTH EXTENSION. 6.

The State, at its sole discretion, upon written notice to Contractor as provided in §29, may unilaterally extend the term of this Contract for a period not to exceed two months if the Parties are negotiating a replacement Contract (and not merely seeking a term extension) at or near the end of any initial term or renewal term. The provisions of this Contract in effect when such notice is given, including, but not limited to prices, rates, and delivery requirements, shall remain in effect during said two-month extension. The two-month extension shall immediately terminate when and if a replacement Contract is approved and signed by the Colorado State Controller.

WORK PLAN 7.

COMPLETION A.

Contractor shall complete the Work and its other obligations as described herein and as specifically described in a Task Order and or Work Plan on or before the date indicated in the Task Order, or as verbally authorized by the State under Emergency and/or Unanticipated Expenses work. The State shall not be liable to compensate Contractor for any Work performed prior to the Effective Date of the Contract, a Notice to Proceed under a Task Order, or under the State's verbal authorization as described further herein.

GOODS AND SERVICES B.

Contractor shall procure Goods and Services necessary to complete the Work. Such procurement shall be accomplished using Task Order funds and shall not increase the maximum amount payable under an executed Task Order, or Work Plan for Emergency Response and Unanticipated Expense Work.

TASK ORDERS 8.

This §8 applies to Task Order Letters and Task Order Amendments unless specifically noted otherwise.

The Task Order and any attachments to the Task Order shall specifically identify the Work to be performed at a petroleum contaminated site. All work shall comply with the terms and conditions of this Contract and Exhibit A. The Parties agree that Contractor’s signature on the Work Plan and the State’s signature on the Task Order shall bind the Parties to perform.

WORK PLAN REQUIREMENTS AND TASK ORDER ISSUANCE A.

In the event that the State requests a Work Plan from Contractor, Contractor shall, within 14 days of the State’s request, or within such other period as may be negotiated by the Parties, submit to the State a Work Plan that includes:

• estimated number of hours to complete the Work,

• material costs,

• employees and subcontractors assigned to the tasks and their responsibilites,

• employee and subcontractor responsibilities, and

• Economic Feasibility Summary (EFS) with pricing based on the lesser of rates and prices presented in Exhibit A and the RCG.

SIGNATURES B.

Contractor shall sign a Work Plan submitted by Contractor to the State. If the State approves the Work Plan, the State will issue a Task Order to Contractor. Task Orders shall bind the Parties to the performance of the Work. The Parties agree that Work Plans and Task Orders under this Contract shall be considered signed when such signed Work Plan or Task Order is delivered by scanned image (e.g.

.pdf or .tiff file extension name) as an attachment to electronic mail (email) to the other Party at such Party’s fax number or email address as stated in §29, so long as the original wet signature document is mailed by Contractor and received by State in a timely manner.

The State shall not be required to approve any Work Plan submitted by Contractor that is deemed by the State to be unacceptable. Contractor shall not be reimbursed for costs related to the development of unaccepted Work Plans. If the Parties cannot agree upon a Work Plan the State may request quotes for the proposed work from three (3) awarded entities under Contract for the provisions of such services, and hire the Contractor with the lowest price and accepted quote.

WORK COMMENCEMENT C.

A Task Order shall be deemed fully executed when the Contractor has signed the Work Plan and the State has signed the Task Order. Contractor's services shall commence only when the State issues a Notice to Proceed, as described in Paragraph E below, under the fully executed Task Order. All Work, once begun, shall be completed in accordance with the requirements and time schedules set forth in the Task Order. No new Task Orders shall be executed after the date this Contract terminates.

NOTICE TO PROCEED D.

After State approval of the Contractor signed Work Plan, the State will execute a Task Order for Work and issue Contractor a Notice to Proceed (“NTP”), in a form substantially equivalent to Exhibit D. Work shall begin under the Task Order only after issuance by the State of the NTP to Contractor as provided in §29. The assigned State Site Manager or Director designee detailed in the NTP will provide direction to Contractor’s representative who shall act on behalf of Contractor.

COST OF WORK E.

Contractor invoices shall not exceed the costs approved in the Work Plan and stated in the Notice to Proceed, when such Notice is given under a Task Order.

SUBCONTRACTED WORK F.

Contractor shall only subcontract work not normally performed by Contractor in Contractor’s course of business. Contractor shall perform at least fifty (50) percent of all work, as determined by the dollar amount, unless pre-approved by OPS. Contractor may be reimbursed for subcontracted work at subcontractor cost plus a handling/oversight charge that shall not exceed 15%, and which must be included in the Work Plan separately and indicated as such. Contractor shall submit all subcontractor invoices with its invoice.

9. WORK UNDER A TASK ORDER LETTER

SITE CHARACTERIZATION/ASSESSMENT (“SC/A”) A.

Contractor shall perform activities for SC/A Work in accordance with the Contract, Exhibit A, and any specific terms of the Task Order Letter.

CORRECTIVE ACTION/REMEDIATION (“CA/R”) B.

Contractor shall perform activities for CA/R Work in accordance with the Contract, Exhibit A, and any specific terms of the Task Order Letter.

HAZARDS C.

The Contractor shall not perform any Work related to a Hazard. For purposes of this Contract, “Hazard” shall mean a fire, the presence of an explosive, or other circumstance that may include an immediate life or safety risk. If site conditions appear to require intervention by authorities due to the presence of a Hazard, the Contractor shall notify the State Site Manager immediately.

Contractor shall begin Work, or may continue Work under a Task Order only after the appropriate authorities’ have mitigated any Hazard.

EXTENSION OF TASK ORDER PERFORMANCE-TASK ORDER AMENDMENT 10.

Should additional work be ordered by the State, the Task Order Letter shall be amended.

Contractor shall submit a signed Work Plan with an amended not to exceed amount to the State Site Manager and follow the procedures set forth in §§8 and 9 above. A Task Order Amendment shall not be made for any work covered by the Task Order Letter or another Task Order Amendment.

UNANTICIPATED EXPENSES 11.

When the Contractor is mobilized to a site and a written Task Order is not possible with respect to unforseen Work that must be performed outside the Task Order, the Contractor shall obtain the State’s verbal authorization to perform the Workas Unanticiapated Expense. Contractor shall send a Work Plan to the State, no later than 5:00 p.m. on the day that Work is being performed, documenting the Unanticipated Expenses. State will initially accept scanned signatures on the Work Plan; however, Contractor shall mail the Work Plan with wet signature to the State as soon as practicable after submittal of the Work Plan. In no event shall the Contractor incur costs in excess of the verbally approved Unanticipated Expenses.

EMERGENCY WORK 12.

When a written Task Order is not possible with respect to Emergency Work, the State may i.

verbally authorize the Contractor to perform the Emergency Work. State authorized personnel listed in Exhibit F may verbally authorize Emergency Work.

The Contractor shall only perform Emergency Work specifically approved by the State ii.

under a verbal authorization. In no event shall the Contractor incur costs in excess of $25,000 under a verbal authorization for Emergency Work. No later than 5:00 p.m. of the working day following the day of verbal authorization, Contractor shall send a Work Plan to the State documenting the Emergency Work performed. State will initially accept scanned signatures on the Work Plan”; however, Contractor shall mail the Work Plan with wet signature to the State as soon as practicable after submittal of the electronic Work Plan.

ADDITIONAL REQUIREMENTS AND RESPONSIBILITIES OF CONTRACTOR 13.

Contractor shall also comply with Exhibit A, §§ 2 and 3, in the performance of all Work under this Contract, and specifically:

For Contractor’s investigation of utilities responsibilities, OPS shall not assume any i.

responsibility or liability for damages or loss of utility service as a result of any investigation Work by the Contractor, and Contractor agrees to accept all responsibility and liability for any damages or loss of service.

Neither the State nor the Contractor shall be responsible for the transportation and ii.

disposal of any hazardous waste. All responsibility for the transportation and disposal of hazardous waste shall be borne by the property owner.

TASK ORDER TERMINATION 14.

A Task Order terminates when Work is completed, which shall occur before or on the Task Order end date indicated in the Task Order or Task Order Amendment, if applicable. If this Contract expires prior to completion of a Task Order, Work shall continue under the terms of the Task Order and the Contract terms shall remain in full force and effect until completion of the Work, which term shall not exceed one (1) year from Contract expiration. Task Orders can be terminated as described in §26 without terminating the Contract.

PAYMENTS TO CONTRACTOR 15.

Contractor shall initiate any payment requests by submitting invoices to the State in the form and manner set forth below in §16 below. Contractor shall receive compensation in accordance with the approved Work Plan.

INTEREST A.

For Work completed under a Commitment Method and accepted by the State, The State shall pay approved invoices within 45 days of receipt by OPS. If the State cannot make payment within 45 days, and should Contractor elect to do so, uncontested amounts not paid by the State within 45 days may bear interest on the unpaid balance beginning on the 46th day at a rate not to exceed one percent per month until paid in full; provided, however, that interest shall not accrue on unpaid amounts that are subject to a good faith dispute. Contractor shall invoice the State separately for accrued interest on delinquent amounts. The billing shall reference the delinquent payment, the number of day’s interest to be paid and the interest rate.

AVAILABLE FUNDS-CONTINGENCY-TERMINATION B.

The State is prohibited by law from making commitments beyond the term of the State’s current fiscal year. Therefore, Contractor’s compensation beyond the State’s current Fiscal Year is contingent upon the continuing availability of State appropriations as provided in the Colorado Special Provisions. Contractor’s compensation is also contingent upon the continuing availability of federal funds. Payments pursuant to this Contract shall be made only from available funds encumbered under a Task Order, and the State’s liability for such payments shall be limited to the amount remaining of such encumbered funds. If State or federal funds are not appropriated or become unavailable to fund a Commitment Method, the State may terminate this Contract immediately, in whole or in part, without further liability in accordance with the provisions hereof.

ERRONEOUS PAYMENTS C.

At the State’s sole discretion, payments made to Contractor in error for any reason, including, but not limited to overpayments or improper payments, and unexpended or excess funds received by Contractor, may be recovered from Contractor by deduction from subsequent payments under this Contract or other contracts, grants or agreements between the State and Contractor or by other appropriate methods and collected as a debt due to the State. Such funds shall not be paid to any Party other than the State.

TOTAL COMPENSATION D.

Total compensation to be paid Contractor under a Commitment Method shall not exceed the total cost stated by Contractor in the Work Plan accepted by the State unless prior State approval is obtained.

INVOICING 16.

Contractor should submit invoices within 30 days after the Task Order end date or within 30 days of completion of Work if the Work is performed under an alternate Commitment Method.

Contractor shall submit an invoice in the format of Exhibit E and shall clearly identify the Task Order number or other Commitment Method. Contractor shall submit invoices to cdle_ops_subcontractor@state.co.us.

RATES A.

RCG rates are subject to periodic review and amendment by the Petroleum Storage Tank Committee (““Committee”“). Contractor’s Exhibit B rates, which are based on the RCGs in effect at the time of Contractor’s RFP Response, may be adjusted by an amendment to this Contract, if RCG rates are adjusted and approved by the Committee.

SUPPORTING DOCUMENTATION B.

Supporting documentation shall include, but not be limited to manifests and Contractor’s internal documents related to the Work under a Commitment Method.

RELEASE OF CLAIMS C.

Upon satisfactory completion of all Work under a Commitment Method, and prior to final i.

payment in accordance with the terms of this Contract for the Work, Contractor shall execute and deliver to the Director of Oil and Public Safety or designee, a release of all claims against the State arising out of or by virtue of the Work performed under a Commitment Method.

The State's review, approval, acceptance of, or payment for any of the Services shall not ii.

be construed to operate as a waiver for fraud, latent defects, or non-payment of subcontractors and suppliers discovered, and the Contractor shall be and remain liable in accordance with all applicable laws for all damages to the State caused by such fraud, defects, or non-payment.

REPORTING - NOTIFICATION 17.

Reports, Evaluations and Reviews required under this §17 shall be in accordance with the procedures of and in such form as prescribed by the State.

PERFORMANCE, PROGRESS, PERSONNEL, AND FUNDS A.

State shall submit a report to the Contractor upon expiration or sooner termination of this Contract, containing an Evaluation and Review of Contractor’s performance and the final status of Contractor's obligations hereunder. In addition, Contractor shall comply with all reporting requirements set forth in Exhibit A.

LITIGATION REPORTING B.

Within ten (10) days after being served with any pleading in a legal action filed with a court or administrative agency, related to this Contract 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 in §29. If the State’s principal representative is not then serving, such notice, and copies shall be delivered to the Executive Director of the Colorado Department of Labor and Employment.

NONCOMPLIANCE C.

Contractor’s failure to provide reports and notify the State in a timely manner in accordance with this §17 may result in the delay of payment of funds and/or termination as provided under this Contract.

SUBCONTRACTS D.

Copies of any subcontracts entered into by Contractor to perform its obligations hereunder shall be submitted to the State or its principal representative upon request by the State. Any subcontracts entered into by Contractor related to its performance hereunder shall comply with all applicable Federal and State laws, and shall provide that the laws of the State of Colorado govern such subcontracts. Contractor shall ensure that any of Contractor’s subcontractor(s) performing work under this Contract shall:

• Adhere to all requirements of this Contract and any Commitment Method.

• Allow the State and Federal government to inspect work performed or audit the books and records of any subcontractor(s) performing work under this Contract, to the extend that the books and records relate to the performance of this Contract.

• Maintain any books and records relating to this Contract for a period of six (6) years after the date of final payment under the subcontract, unless a shorter period of time is otherwise authorized in writing.

ADDITIONAL REPORTING REQUIREMENTS E.

Contractor shall also comply with all reporting requirements as set forth Exhibit A.

CONTRACTOR RECORDS 18.

MAINTENANCE A.

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:

(i) a period of six (6) years after the date this Contract expires or is sooner terminated, or (ii) final payment is made hereunder, or (iii) the resolution of any pending Contract matters, or (iv) 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”).

INSPECTION B.

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 Contract during the Record Retention Period for a period of five (5) years following termination of this Contract or final payment hereunder, whichever is later, to assure compliance with the terms hereof or to evaluate performance hereunder.

CONFORMANCE OF WORK C.

The State reserves the right, and Contractor authorizes the State, to inspect the Work at all reasonable times and places during the term of this Contract, including any extensions or renewals.

If the Work fails to conform with the requirements of this Contract, the State may require Contractor promptly to bring the Work into conformity with Contract 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 Contract requirements and exercise the remedies available under this Contract, at law or in equity, in lieu of or in conjunction with such corrective measures.

MONITORING D.

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 Contract 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.

FINAL AUDIT REPORT E.

If an audit is performed on Contractor’s records for any fiscal year covering a portion of the term of this Contract, Contractor shall notify the State and submit a copy of the final audit report to the State upon request.

CONFIDENTIAL INFORMATION-STATE RECORDS 19.

Contractor shall comply with the provisions on this §19 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, C.R.S. §24-72-101, et seq.

CONFIDENTIALITY A.

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.

NOTIFICATION B.

Contractor shall notify its agent, employees, subcontractors, and assigns who may come into contact with State records and confidential information that each is subject to the confidentiality requirements set forth herein.

USE, SECURITY, AND RETENTION C.

Confidential information of any kind shall not be distributed or sold to any third party or used by Contractor or its agents in any way, except as authorized by this Contract 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 Contract or approved in writing by the State.

DISCLOSURE-LIABILITY D.

Disclosure of State records or other confidential information by Contractor for any reason i.

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 §19.

Any breach of confidentiality by the Contractor, or third party agents of the Contractor, ii.

shall constitute good cause for the State to cancel this Contract, without liability to the State.

Any State waiver of an alleged breach of confidentiality by the Contractor, or third party iii.

agents of the Contractor, does not constitute a waiver of any subsequent breach by the Contractor, or third party agents of the Contractor.

CONFLICTS OF INTEREST 20.

Contractor and it’s subcontractors shall not engage in any business or personal activities or practices or maintain any relationships which conflict in any way with the full performance of Contractor’s obligations hereunder. Contractor acknowledges that with respect to this Contract, even the appearance of a conflict of interest is harmful to the State’s interests. Absent the State’s prior written approval, Contractor shall refrain from any practices, activities or relationships that reasonably appear to be in conflict with the full performance of Contractor’s obligations to the State hereunder. If a conflict or appearance exists, or if Contractor is uncertain whether a conflict or the appearance of a conflict of interest exists, Contractor shall submit to the State a disclosure statement setting forth the relevant details for the State’s consideration. Failure to promptly submit a disclosure statement or to follow the State’s direction in regard to the apparent conflict constitutes a breach of this Contract.

CONTRACTOR REPRESENTATIONS AND WARRANTIES 21.

Contractor acknowledges and agrees to the specific representations and warranties listed below, each of which was relied on by the State in entering into this Contract.

STANDARD AND MANNER OF PERFORMANCE A.

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 Contract and Task Orders. Contractor shall use all commercially reasonable efforts to perform services within the time specified in a Task Order. If circumstances arise that prohibit the Contractor from completing performance within that period, or the system provided by the Contractor is subjected to a material change in use or function different from that in the approved design, Contractor shall immediately notify the State Site Manager.

LEGAL AUTHORITY – CONTRACTOR SIGNATORY B.

Contractor represents and warrants that it possesses the legal authority to enter into this Contract 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 Contract, 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 Contract within fifteen (15) days of receiving such request.

LICENSES, PERMITS, ETC. C.

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.

Contractor warrants that it shall maintain all necessary licenses, certifications, approvals, insurance, permits, and other authorizations required to properly perform this Contract, without reimbursement by the State or other adjustment in Contract Funds. Additionally, all employees, agents, and subcontractors of Contractor performing Services under this Contract 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 Contract is a material breach by Contractor and constitutes grounds for termination of this Contract.

RATE CERTIFICATION D.

Contractor represents and warrants that its cost and pricing data are based on current, accurate, and complete data supported by its books and records. If State determines that pricing (including profit) in connection with this Contract was increased by any significant sums because the data Contractor provided was inaccurate, incomplete, or not current at the time of Contractor’s proposal submission, then such price, cost or profit shall be reduced accordingly.

WARRANTY OF WORK E.

Contractor represents and warrants that the Work performed hereunder shall be free from defects in materials and workmanship for a periof of two (2) years after completion of the Work under a Commitment Method. Contractor shall correct any defects in materials and workmanship during the two (2) year period that directly arise from Contractor’s action or inactions in the performance of the Work. Such warranty shall also extend to Contractor’s subcontractors performing Work.

INDEMNIFICATION 22.

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 the terms of this Contract; however, the provisons 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 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.

NONDISCRIMINATION 23.

Contractor shall comply with all applicable federal, state, local laws, ordinances, executive orders, and regulations that prohibit discrimination on the basis of race, color, national origin, religion, and sex, including but not limited to: TITLE VI of the Civil Rights Act of 1964, as amended (p.l. 88- 352), 42 U.S.C. § 2000d et seq., and TITLE VII of the Civil Rights Act of 1964, as amended.

Unless required by federal law or regulation, employers may not automatically bar applicants or employees with an arrest or conviction record from employment.

MBE/WBE REPORTING 24.

The State's EPA Grant has the following current fair share objectives/goals:

• •MBE (Minority Business Enterprise):

CONSTRUCTION 6.1%; SUPPLIES 6.1%; SERVICES 6.1%; EQUIPMENT 6.1%.

• •WBE (Woman –owned Business Enterprise):

CONSTRUCTION 6.6%; SUPPLIES 6.6%; SERVICES 6.6%; EQUIPMENT 6.6%.

Contractor shall endeavor to utilize MBE/WBE businesses in the performance of Services under this Contract. Contractor shall submit written quarterly documentation to the State Monitor regarding small, minority and women owned business enterprises utilized during the term of this Contract. Minimum documentation shall include the company name and the quarterly percentage of Work performed under the Contract.

INSURANCE 25.

Contractor and its Subcontractors shall obtain and maintain insurance as specified in this section at all times during the term of this Contract. All policies evidencing the insurance coverage required hereunder shall be issued by insurance companies satisfactory to Contractor and the State.

If Contractor is a "public entity" within the meaning of the Colorado Governmental i.

Immunity Act, CRS §24-10-101, et seq., as amended (the “GIA”), then Contractor shall maintain at all times during the term of this Contract 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.

If Contractor is not a "public entity" within the meaning of the GIA, Contractor shall ii.

obtain and maintain during the term of this Contract insurance coverage and policies meeting the same requirements set forth below.

WORKER’S COMPENSATION A.

Worker’s Compensation Insurance as required by State statute, and Employer’s Liability Insurance covering all of Contractor or subcontractors’ employees acting within the course and scope of their employment.

GENERAL LIABILITY B.

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, Subcontractor 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.

AUTOMOBILE LIABILITY C.

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.

COMMERCIAL ENVIRONMENTAL IMPAIRMENT LIABILITY INSURANCE D.

Contractor shall maintain Commercial Environmental Impairment Liability Insurance (or Pollution Liability Insurance), which covers Contractor’s liability for bodily injury, property damage and environmental damage resulting from pollution and related cleanup costs incurred, all arising out of the work or services to be performed under this Contract. Coverage shall be provided for both work performed on site, as well as during the transport and disposal of hazardous materials. Minimum limit of coverage of $5,000,000 per occurrence. Such insurance shall include coverage for Completed Operations extending two (2) years after the final acceptance of Task Orders by the State

PROFESSIONAL LIABILITY E.

Professional Liability Insurance covering errors and omissions for all contractual work performed by Contractor’s employee, consultants, or agents. A minimum limit of $1,000,000 shall be required. If written on a claims-made basis, coverage shall remain in effect for two years after the completion of the contract or a two year extended reporting policy must be purchased.

ADDITIONAL INSURED F.

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 and any subcontractors hereunder.

SUBROGATION WAIVER G.

All insurance policies in any way related to this Contract and secured and maintained by Contractor or its Subcontractors 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.

PRIMACY OF COVERAGE H.

Coverage required of Contractor and subcontractor shall be primary over any insurance or self-insurance program carried by Contractor or the State.

CANCELLATION I.

The above insurance policies shall include provisions preventing cancellation or non-renewal without at least 45 days prior notice to the State and Contractor shall forward such notice to the State in accordance with §29 (Notices and Representatives) within seven days of Contractor’s receipt of such notice.

CERTIFICATES J.

Contractor and all subcontractors shall provide certificates showing insurance coverage required hereunder to the State within seven business days of the Effective Date of this Contract. No later than fifteen (15) days prior to the expiration date of any such coverage, Contractor and each subcontractor shall deliver to the State or Contractor certificates of insurance evidencing renewals thereof. In addition, upon request by the State at any other time during the term of this Contract or any sub-contract, Contractor and each subcontractors shall, within ten (10) days of such request, supply to the State evidence satisfactory to the State of compliance with the provisions of this §25.

BREACH 26.

DEFINED A.

In addition to any breach specified in other sections of this Contract, 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.

NOTICE AND CURE PERIOD B.

In the event of a breach, notice of such shall be given in writing by the aggrieved Party to the other Party in the manner provided in §29. If such breach is not cured within 30 days of receipt of written notice, or if a cure cannot be completed within 30 days, or if cure of the breach has not begun within 30 days and pursued with due diligence, the State may exercise any of the remedies set forth in §27 &

28. Notwithstanding anything to the contrary herein, the State, in its sole discretion, need not provide advance notice of a cure period and may immediately terminate this Contract in whole or in part if reasonably necessary to preserve public safety or to prevent immediate public crisis.

REMEDIES 27.

For purposes of this §27, the reference to Contract shall also mean Commitment Method.

If Contractor is in breach under any provision of this Contract, the State shall have all of the remedies listed in this §27 in addition to all other remedies set forth in other sections of this Contract following the notice and cure period set forth in §26(B). The State may exercise any or all of the remedies available to it, in its sole discretion, concurrently or consecutively.

TERMINATION FOR CAUSE AND/OR BREACH A.

The State may terminate this entire Contract or any part of this Contract. Exercise by the State of this right shall not be a breach of its obligations hereunder. Contractor shall continue performance of this Contract to the extent not terminated, if any.

Obligations and Rights i.

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 Contract’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.

Payments ii.

The State shall reimburse Contractor only for accepted performance up to the date of termination.

If, after termination by the State, it is determined that Contractor was not in breach or that Contractor's action or inaction was excusable, such termination shall be treated as a termination in the public interest and the rights and obligations of the Parties shall be the same as if this Contract had been terminated in the public interest, as described herein.

Damages and Withholding iii.

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 Contract by Contractor and the State may withhold any payment to Contractor for the purpose of mitigating the State’s damages, until such time as the exact amount of damages due to the…