Exhibit H_Sample Contract - Roofing (No DSBO Program).pdf

IFB Emergency On-Call (various) 1 Roofing

GENRL-202580235-00

EMERGENCY ON CALL REPAIR CONTRACT

Roofing

THIS EMERGENCY ON CALL REPAIR CONTRACT (this “Agreement”) is by and between the CITY AND COUNTY OF DENVER, a municipal corporation of the State of

Colorado (the “City”), and ________________________, a [State of formation] [type of entity

(e.g., corporation)], with a principal place of business address of ______________________ (the

“Contractor”). For purposes of this Agreement, the City and the Contractor are individually referred to as a “Party” and collectively as the “Parties.”

RECITALS

The City has identified a need for a qualified and competent contractor to perform, as assigned, emergency repairs as directed by the City on an “on-call” or “as needed” basis (the

“Program”). Program work will generally consist of performance of such emergency repair services required on a variety of as yet to be identified projects as assigned by the City (the

“Projects”).

The work shall consist of emergency roofing repair and maintenance services at multiple locations throughout the City and County of Denver.

The Work may be required during Standard Work Hours and Non-Standard work hours as defined and described herein.

The Contractor is willing and able and has the present capacity to perform all of the services required under this Agreement.

AGREEMENT

The recitals set forth above are incorporated herein as set forth in their entirety. In consideration of the premises and the mutual covenants herein contained, and subject to the terms and conditions in this Agreement, the Parties agree as follows

1. DEFINITIONS. The capitalized terms used in this Agreement and any and all exhibits hereto, will have the meanings given such terms in the paragraph in which such terms are parenthetically defined. The meanings given to terms defined will be equally applicable to the singular and plural forms of such terms. In addition, the following capitalized terms shall have the following meanings:

A. “City” means and refers to the City and County of Denver or a person authorized to act on its behalf.

B. “Contractor” means and refers to the Contractor, its agents, employees, officers, and anyone acting on its behalf.

C. “Exhibit A” or “Scope of Work” means the Contractor’s scope of work under this Agreement, and as further defined in each specific work order assigned hereunder (the “Work

Order”).

Exhibit E

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D. “Non-Standard Work Hours” means Monday through Friday, Weekends, and City of Denver Holidays, 5:00 P.M. to 7:00 A.M. as described in Exhibit A.

E. “Standard Work Hours” means Monday through Friday, 7:00 A.M to 5:00

P.M.

F. “Subcontractor” means an entity, other than the Contractor, that furnished or furnishes to the City or the Contractor services or supplies (other than standard office supplies, office space or printing services) pursuant to this Agreement.

G. “Work Order” means the specific emergency task given to the Contractor for execution as contemplated under this Agreement.

2. WORK TO BE PERFORMED.

A. Work: The Contractor shall furnish all labor, tools, supplies, equipment, materials and everything necessary for and required to do, perform and complete all of the work described in the Scope of Work, Technical Requirements and General Conditions attached hereto as Exhibit A and incorporated herein by reference (the “Work”). The Contractor shall perform

Work in a highly skilled manner consistent with the performance standards and technical requirements set forth in Exhibit A. When called for services, the Contractor will first determine the number of workers and the type of equipment, and supplies required and respond to the site within two (2) hours. The Contractor will commence work as soon as practical, but no later than the next business day, and will provide a “not-to-exceed” cost estimate to the using agency. The

Contractor shall complete the Project within the time period specified in the Work Order for the

Project. The Contractor shall diligently prosecute the Work to completion using its best efforts, highly skilled work effort and attention. The Contractor shall be solely responsible for all means, methods and techniques of performance, protection of property and safety. The Contractor shall be responsible to the City for the acts and omissions of the Contractor’s employees and any other persons performing any of the work or furnishing materials.

B. Oversight: The Contractor shall conduct the Work under the general direction of and in coordination with the Executive Director of the Department of General Services

(the “Executive Director”) or other designated representative (“Designee”) and the Department employee(s) assigned to manage the Project (the “Department”) and make every reasonable effort to fully coordinate the Project with any City agency or any person or firm under contract with the

City doing work which affects the Contractor’s Project. The Contractor agrees to allow the City to review any of the procedures used by it in doing the Work under this Agreement and to make available for inspection all notes and other documents used in performing the Work.

C. Cooperation and Coordination: The Contractor shall make every reasonable effort to fully coordinate the Work with any City agency or any person or firm under contract with the City doing work which affects the Work on any particular Work Order. The

Contractor agrees to allow the City to review any of the procedures used by it in doing the Work under this Agreement and to make available for inspection all notes and other documents used in performing the Work.

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D. Non-exclusivity: The Contractor acknowledges and agrees that this

Agreement does not create an exclusive right to perform all Work for which the City may contract for the type of service described in Exhibit A. The City may enter into contracts with other contractors to perform the same or similar services and reserves the right to select, at the discretion of the Executive Director or Designee, the contractor that is the most cost effective, best suited, and/or most readily able to perform a specific Project.

E. Work Order: As the Department determines the need for emergency services, the City will issue an emergency authorization code followed by a written Work Order to the Contractor detailing the nature and extent of services to be provided, the location of the

Project, and the timeframes within which the Project is to be performed, with a projected amount to be paid to the Contractor (the “Project Amount”) based on the Work items described in the

Scope. Exhibit B attached hereto and incorporated herein by reference contains the Billing Rates, which the Contractor acknowledges and affirms that the City may rely upon in the preparation of

Work Orders as provided herein. Exhibit C attached to this Agreement and incorporated herein by reference substantially reflects the form of the Work Order to be issued by the City. The

Contractor shall, within two (2) hours and in good faith, confirm the scope of services detailed therein and the associated Project Amount, all of which must be in accordance with the terms and conditions of this Agreement, and respond back in writing to the Department as to the Contractor’s ability to initiate and complete the Project in the timeframes specified in the Work Order. The

Contractor assumes all responsibility and risks, including any additional work or additional costs, for failure to confirm the completeness and accuracy of the Work Order and the Project Amount, including any inquiries with the Department as to any directions or specification in the Work Order which are not clear. Confirmation includes, but is not restricted to, inspections of the Project site and inquiries with the Department as to any directions or specifications in the Work Order which are not clear. Upon the Contractor executing the Work Order, the Department shall finalize and execute the Work Order for the Project and return a copy of the executed Work Order to the

Contractor which shall include a purchase order number and the temporary authorization code for each Project. The Department will not execute the Work Order unless any material changes proposed by the Contractor to the terms of the issued Work Order and/or additions to the Project

Amount are deemed acceptable by the Executive Director or Designee and incorporated into the

Work Order and until funding adequate to cover the entire Project Amount is available.

F. Work Order Change: If, after execution of a Work Order and commencement on the Project, additions, deletions or modifications to the Work described in the

Work Order, along with any associated changes in the Project Amount, are required by the

Department or are requested by the Contractor and approved in advance by the Department, an

Work Order Change, in substantially the form as set forth in Exhibit D attached to this Agreement and incorporated herein by reference, may be issued in accordance to the same standards and procedures prescribed for Work Orders. The Contractor shall promptly and thoroughly review and respond to the proposed changes, in accordance to the same standards and procedures prescribed for Work Orders and notify the Department that the Contractor is ready and willing to perform the

Project in the manner and timeframes as modified by the Work Order Change. The Department will not execute the Work Order Change unless any material changes proposed by the Contractor to the terms of the issued Work Order and/or additions to the Project Amount are deemed acceptable by the Executive Director or Designee and incorporated into the Work Order Change and until funding adequate to cover the entire Project Amount, if modified, is available.

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G. Field Order Directive: A Field Order Directive is a written order (Exhibit

E) signed by the Executive Director or Designee, which directs the Contractor to commence emergency services. A Field Order Directive may be used when:

1) The City determines that the Contractor must proceed immediately to perform the service in order to avoid or correct a situation where the health or safety of persons may be affected, and sufficient time is not available to negotiate the Services;

2) The City and Contractor have not yet completed their negotiation of

Services but in the interest of safety, the City requires the Contractor to proceed without an executed Order or authorization in place.

Upon receipt of a Field Order Directive the Contractor shall promptly sign the

Order and return it to the Department and shall promptly proceed with performing the emergency

Services. Within five (5) days after completing the Services the Contractor shall provide the

Executive Director or Designee with an itemized invoice attributable to the emergency.

H. Inspection of the Work: Persons who are employees of the City or who are under contract to the City will be assigned to inspect and test the Work. These persons may perform any tests and observe the Work to determine whether or not materials used, manufacturing and construction processes and methods applied, and equipment installed satisfy the requirements of the technical specifications, all other contract requirements, and the Contractor’s warranties and guarantees. The Contractor shall permit these inspectors unlimited access to the Work and provide means of safe access to the Work, which cost shall be included in the Contractor’s price for the

Work. In addition, the Contractor shall provide whatever access and means of access are needed to off-site facilities used to store or manufacture materials and equipment to be incorporated into the Work and shall respond to any other reasonable request to further the inspector’s ability to observe or complete any tests. Such inspections shall not relieve the Contractor of any of its quality control responsibilities or any other obligations under this Agreement. All inspections and all tests conducted by the City are for the convenience and benefit of the City. These inspections and tests do not constitute acceptance of the materials or Work tested or inspected, and the City may reject or accept any Work or materials at any time prior to the inspections, whether or not previous inspections or tests were conducted by the inspector or a City representative.

I. Warranties; Correction of Work: The Contractor warrants that all parts, materials, components, equipment, systems and other items incorporated into the Work (“Items”) shall be new, unless otherwise specified, and suitable for the purpose used, and will be of good quality, free from faults and defects, and in keeping with common industry standards and that said

Items shall be properly installed or incorporated into the Work in accordance with manufacturer’s specifications and standard practices for said Items, and all of this shall be in conformance with the specifications and requirements of this Agreement. The Contractor’s warranty shall be effective for a one-year period following the completion of the Work and shall be extended for one year following any repair, replacement or corrective action required under the warranty. The

Contractor, when requested, shall furnish the Executive Director or Designee with satisfactory evidence of the kind and quality of Items proposed to be incorporated into the Work. At any time while this Agreement is in effect or during the warranty period, the Contractor shall, at no cost to the City, promptly investigate, repair, replace, or otherwise correct any of its workmanship and/or

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Items in the Work which contain fault(s) or defect(s), whether such failure(s) are observed by the

City or the Contractor, and promptly repair, replace, otherwise correct any damage to any personal or real property owned by the City or another person resulting from said fault(s) or defect(s) or from the repair, replacement, or correction of the fault(s) or defect(s).

J. Title: The Contractor warrants that it has full title to all items incorporated into the Work, that its transfer of such title to the City is rightful and free and clear from all security interests, liens, claims, or encumbrances whatsoever, and that the Contractor will defend such title against all persons claiming the whole or part of any Item, at no cost to the City.

K. Completion; Deficiency: The Contractor shall promptly notify the Project

Manager as to the completion of the Work so that inspection of the Work may be made by the

City. If a Completion Notice is specified in the Work Order, the Contractor shall not submit a request for payment for the Work performed until a Completion Notice is issued by the Executive

Director or Designee or ten (10) calendar days after the City is notified of Work completion, whichever is sooner. If the Work performed is determined by the Executive Director or Designee to be defective, deficient or incomplete, whether or not a Completion Notice is required, the

Contractor shall correct or complete the Work, at no additional cost to the City, within the timeframe specified in a Notice of Deficiency issued by the Executive Director or Designee, and promptly notify the Executive Director or Designee upon correction or completion of the Work.

L. Time is of the Essence: The Work is time sensitive. The Contractor acknowledges and affirms that it is imperative that the Contractor exercise due diligence and actively and expeditiously undertake all measures necessary: 1) in initiating, making good progress, and completing the Project, all within the timeframes specified in this Agreement and applicable Work Order (the “Performance Period”), and 2) in promptly and fully correcting or completing any Work noted in a Notice of Deficiency. Failure or refusal by the Contractor to initiate, make good progress, or complete the Work within the Performance Period may result, at the discretion of the Executive Director or Designee, in termination of this Agreement, or in assessment of liquidated damages at the discretion of the Designee under Section 6 of Agreement.

M. Subcontracting: Except as approved by the Executive Director or

Designee in advance and in writing, or in emergency situations, through a Field Order Directive, the Contractor shall not subcontract with another contractor to perform the Work. The Contractor is prohibited from hiring any subcontractor currently debarred by the City in accordance with

Section 20-77 of the Denver Revised Municipal Code.

3. METHODS OF WORK.

A. Resources, Personnel, and Time Commitment: The Work shall be promptly commenced and actively prosecuted with the optimum complement of workers and equipment in order to complete the Work in an effective and expeditious manner. The Contractor shall furnish all labor, tools, supplies, equipment, materials and everything necessary for and required to perform and complete the Work. The Work shall be undertaken by workers skilled, proficient, and experienced in the trades required by this Agreement and shall be performed in an orderly and responsible manner in accordance with recognized standards and the plans and specifications contained in this Agreement or provided to the Contractor by the City. If the City

IFB Emergency On-Call (various) 6 Roofing reasonably believes that the Work is not proceeding satisfactorily or timely because the Contractor has not utilized an adequate number of qualified and skilled personnel or workers or provided sufficient tools, supplies, equipment, or materials, then the City may require the Contractor, at no additional cost to the City, to utilize additional qualified and skilled personnel or workers or provide additional tools, supplies, equipment, or materials to perform the Work in a manner reasonably acceptable to the City.

B. Permits and Licenses: Any tasks specified under this Agreement that require the employment of licensed or registered personnel shall be performed by licensed or registered personnel. The Contractor shall obtain, at its own expense, and maintain all permits or licenses, including any prescribed governmental authorizations or approvals, required for the performance of the Work and shall demonstrate, if requested, what actions the Contractor has taken to comply with the required permits, licenses, authorizations or approvals.

C. Work Site Conditions: Work sites and nearby locations shall be kept clean and neat. Equipment, vehicles, and materials no longer needed at the site shall be promptly removed from the site, and any such items lawfully stored for use on the site shall be so placed and secured as to protect the public health and safety. All scraps, debris, trash, excess soil, and other waste materials shall be regularly removed and properly disposed of. Disposal in solid waste containers provided by the City is prohibited unless written authorization is obtained.

D. Protection of Property: The Contractor shall assume full responsibility and expense for the protection of all public and private property, including but not limited to structures, street improvements, pathways, irrigation systems, landscaping, water lines, sewers, and other utilities, both above and below ground, at or near the site or sites of the Work or at any other location affected by the prosecution of the Work or the transportation or utilization of workers, equipment, or materials in connection with the Work. The Contractor shall provide, in a timely manner and in advance, written notice to: 1) the City department having charge of any property, right of way, or utility affected by the Work; 2) any utility having charge of any utility affected by the Work; and 3) any private property owner whose property or improvements will be affected by the Work, and shall make all necessary arrangements with such City department, utility, or private property owner for the removal and replacement or the protection of such property. The Contractor shall arrange and obtain any utility locations required by law or necessary to protect utilities or underground facilities on public or private property and shall be liable for any failure to obtain or comply with such utility locations. To the extent that any permit or license is required by a City department or other governmental entity for any work on public property, said permit or license shall be obtained and paid for by the Contractor in advance of performing the

Work and shall be complied with in the performance of the Work. If the Contractor or its employees, agents, or subcontractors destroy or damage any property, public or private, the

Contractor shall promptly repair or replace such property, to the reasonable satisfaction of the

Department, before the City will accept or pay for the Work performed. If the Contractor fails to make such repairs or replacement, the Executive Director or Designee may, at the Executive

Director’s or Designee’s discretion, undertake such repair or replacement and deduct the cost of the same from amounts payable to the Contractor under this Agreement.

E. Safety: The Contractor is responsible for the health and safety of every person on or at the Work site and shall take all necessary and appropriate precautions and actions

IFB Emergency On-Call (various) 7 Roofing to protect such persons from injury, death or loss. The Contractor shall be responsible for being fully familiar with and complying with all applicable City, state or federal laws, ordinances, rules and regulations, requirements and guidelines, including the Occupational Safety and Health Act and any regulations or directives adopted thereunder (“Safety Laws”). The Contractor shall promptly notify the City in writing of any violations of said Safety Laws, along with copies of any injury reports, and any citations, orders, or warnings issued by governmental agencies in the enforcement of said Safety Laws. The Contractor shall provide and properly locate all necessary protective devices and safety precautions, including warning signs, barricades, or other devices or precautions as required by Safety Laws or the City. For all operations requiring the placement and movement of equipment or materials, the Contractor shall observe and exercise, and shall direct its employees or agents to observe and exercise, all appropriate and prudent caution so as to avoid injury to persons or damage to property and to minimize annoyance to or undue interference with the movement of the public and the performance of City functions. All ladders, scaffolding, or other devices used to reach objects not otherwise accessible, shall be of sound construction, firm and stable and shall be maintained in good, operable condition. All such equipment shall be moved, placed, shifted, and removed from work areas in such a manner as to provide maximum safety to persons and property and cause the least possible interference with the normal usage of such areas by the public and City personnel.

F. Disposal of Non-Hazardous Waste at DADS: In accordance with the

Landfill Agreement made between the City and Waste Management of Colorado, Inc., the

Contractor will be required to haul dedicated loads (non-hazardous entire loads of waste) to the

Denver-Arapahoe Disposal Site (“DADS”) for disposal. DADS is located at Highway 30 and

Hampden Avenue in Arapahoe County, Colorado. The City will pay all fees associated with such disposal but the Contractor shall be responsible for the costs of transporting the loads. Non-hazardous waste is defined as those substances and materials not defined or classified as hazardous by the Colorado Hazardous Waste Commission pursuant to C.R.S. §25-15-207, as amended from time to time, and includes construction debris, soil and asbestos. Proposals shall not use Gun Club

Road between I-70 and Mississippi Avenue as a means of access to DADS.

G. Prohibition on Use of CCA-Treated Wood Products: The use of any wood products pressure-treated with chromated copper arsenate (CCA) is prohibited. Examples of

CCA-treated wood products include wood used in play structures, decks, picnic tables, landscaping timbers, fencing, patios, walkways and boardwalks.

H. Waiver of Part 8 of Article 20 of Title 13, Colorado Revised Statutes:

The Contractor specifically waives all the provisions of Part 8 of Article 20 of Title 13, Colorado

Revised Statutes regarding defects in the Work under Agreement.

I. Liens and Other Encumbrances: The Contractor shall not permit any mechanic’s or materialman’s liens or any other liens to be imposed and remain for more than ninety (90) days upon any City-owned property, or any part thereof, by reason of any worker labor performed or materials or equipment furnished by any person or legal entity to or on behalf of the

Contractor, either pursuant to C.R.S. § 38-26-107 or by any other authority. The Contractor shall promptly pay when due all bills, debts and obligations incurred in connection with this Agreement and shall not permit the same to become delinquent. The Contractor shall not permit any lien, mortgage, judgment, execution or adjudication of bankruptcy which will in any way impair the

IFB Emergency On-Call (various) 8 Roofing rights of the City under this Agreement. The Contractor will indemnify and save harmless the City for the extent of any and all payments, interests, and penalties resulting from failure to comply with this Section. The Contractor’s obligations set out in this Section shall survive the termination of this Agreement.

J. Environmental Compliance: The Contractor shall obtain all necessary federal, state, and local environmental permits and comply with all applicable federal, state, and local environmental permit requirements relating to the Work. The Contractor shall comply with all applicable local, state, and federal environmental guidelines, rules, regulations, statutes, laws, and orders (collectively, “Environmental Requirements”), including but not limited to

Environmental Requirements regarding the storage, use, transportation, and disposal of Hazardous

Materials and regarding releases or threatened releases of Hazardous Materials to the environment.

The term “Hazardous Materials” shall mean asbestos and asbestos-containing materials, special wastes, polychlorinated biphenyls (PCBs), any petroleum products, natural gas, radioactive source material, pesticides, any hazardous waste as defined at 42 U.S.C. § 6903(5) of the Solid Waste

Disposal Act, any hazardous substance as defined at 42 U.S.C. § 9601(14) of the Comprehensive

Environmental Response, Compensation and Liability Act, and chemical substance as defined at

15 U.S.C.§ 2602(2) of the Toxic Substances Control Act, and any guidelines issued and rules or regulations promulgated pursuant to such statutes or any other applicable federal or state statute.

K. Attorney’s Fees: Colorado Revised Statute 38-26-107 requires that in the event any person or company files a verified statement of amounts due and unpaid in connection with a claim for labor and materials supplied on this project the City shall withhold from payments to the Contractor sufficient funds to insure the payment of any such claims. Should the City and

County of Denver be made a party to any lawsuit to enforce such unpaid claims or any lawsuit arising out of or relating to such withheld funds, the Contractor agrees to pay to the City its costs and reasonable attorney’s fee which cost shall be included as a Cost of the Work. Because the City

Attorney Staff does not bill the City for legal services on an hourly basis, the Contractor agrees a reasonable fee shall be computed at the rate of two hundred dollars per hour of City Attorney time.

L. Environmental Sustainability: The Contractor shall demonstrate commitment to and experience in environmental sustainability and public health protection practices applicable to its line of services including, but not limited to, construction waste recycling and energy efficiency. The Contractor shall work to reduce landfill waste by recycling and/or salvaging recyclable materials. Where applicable, contractor shall procure and install fixtures and equipment that reduce energy use.

4. TERM. The term of this Agreement will commence upon ______________, 20___, and will continue until _________________, 20___ (the “Term”). The Term may be extended on the same terms and conditions, for two (2) one (1) year renewal terms, upon written amendment to this Agreement prior to the expiration of the current term. The Contractor agrees to comply with all applicable Contract close-out procedures and requirements set forth in the Contract and as otherwise directed by the Executive Director or Designee.

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5. COMPENSATION AND PAYMENT.

A. Maximum Contract Amount: Each Project will be assigned and authorized separately by Work Order and the maximum liability of the City for any one Work

Order shall not exceed the sum of _____________________ ($___________.00), including all authorized Work Order changes, without the prior written approval of the Executive Director or

Designee. The Maximum Contract Amount to be paid by the City to the Contractor for satisfactory completion of all Work Orders authorized by the City and performed by the Contractor under this

Agreement shall in no event exceed the sum of ______________________ AND __/100

DOLLARS ($__________.__), unless this Agreement is modified to increase said amount by a duly authorized and written amendment to Agreement executed by the Parties in the same manner as Agreement. The Maximum Contract Amount stated herein is not intended, and shall not be construed, as a promise or guarantee to the Contractor that the final price payable to the Contractor for all of the authorized Work will equal the Maximum Contract Amount.

B. Conditions of Payment: Payment shall be made upon satisfactory completion of the Work in accordance with the Work Order issued and this Agreement. A properly issued and signed final receipt and lien waiver shall be a condition precedent to any obligation for the City to make final payment for Work performed by the Contractor. The request for payment submitted by the Contractor must fully document and itemize the Work rendered and all equipment, supplies, materials, labor, and other authorized and actually incurred costs. The request for payment shall affirmatively represent that: i) all of the Work specified in the Work Order has been fully performed and completed and any Deficiency Notice has been satisfied; ii) no claims, liens, or amounts owed to employees, suppliers, or materialmen are outstanding and all requirements and conditions of Section 12 below have been fully complied with; iii) all rights, title and interests to the materials or improvements provided or installed as the result of the Work have transferred to the City; and iv) no interest or encumbrance of any kind associated with the Work will be asserted, has been acquired, or will be made by the Contractor or any other person or entity.

If the request for payment does not contain these representations, the representations are hereby deemed to contain them. The request for payment must be approved by the Executive Director or

Designee in writing in order to be eligible for compensation under this Agreement. Any payment may be reduced by any liquidated damages assessed by the Executive Director or Designee under

Subsection 6.D.2 below.

C. Subject to Appropriation; No Multiple Year Obligation: It is understood and agreed that any payment obligation of the City hereunder, whether direct or contingent, shall extend only to funds appropriated by the Denver City Council for the purpose of this Agreement, encumbered for the purpose of this Agreement and paid into the Treasury of the City. The

Contractor acknowledges that (i) the City does not by this Agreement, irrevocably pledge present cash reserves for payments in future fiscal years, and (ii) this Agreement is not intended to create a multiple-fiscal year direct or indirect debt or financial obligation of the City.

D. Amendments: The Contractor acknowledges that the City is not obligated to execute an amendment to this Agreement, and that any work performed by Contractor beyond that specifically described or allowed under Agreement or without a fully and properly executed amendment to this Agreement is performed at Contractor’s risk and without authorization under this Agreement.

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6. TERMINATION & REMEDIES.

A. Termination for Convenience of the City: The Executive Director or

Designee, upon giving twenty (20) calendar days written notice (unless a longer period is given), may terminate this Agreement, in whole or part, when it is in the best interest of the City as determined by the Executive Director or Designee. To the extent that the Contractor has initiated or completed Work for which the Contractor has not yet been compensated in accordance with this

Agreement, appropriate compensation for all such authorized Work shall be paid to the Contractor in accordance with this Agreement.

B. Termination, With Cause, by the City: The occurrence of any one or more of the following shall constitute a breach of Agreement (“Breach”), for which the Executive

Director may, at the Executive Director’s option, either terminate this Agreement or withdraw a

Work Order, with cause, upon written notice to the Contractor:

1) The Contractor fails or refuses, within three (3) calendar days of being notified, to expeditiously and actively undertake or substantially or timely perform its responsibilities and obligations or fails or refuses to make adequate progress in performing its responsibilities and obligations under this Agreement, including the due diligence obligations set forth in Section 1 of this Agreement or the Work methods under Section 2 of this Agreement, provided that the failure or refusal to undertake, make good progress, or complete the Work is not due to matters beyond the Contractor’s control such as weather disaster or persistent bad weather, floods, or other acts of God, civil unrest, acts of the public enemy, national calamity, or strike at a manufacturer or supplier for the Work Project;

2) There is substantial evidence that it has been or will be impossible for the Contractor to perform the Work required due to matters within the Contractor’s control such as voluntary bankruptcy, strikes, boycotts, and labor disputes involving Contractor’s employees or closure or suspension of operations by regulatory order of a governmental entity or an order of a court due to violations or infractions by the Contractor or Contractor’s employees;

3) The Contractor has persistently or flagrantly failed to perform the

Work or failed to timely perform the Work or to comply with the specifications and requirements as set forth in the Scope of Work in Exhibit A to this Agreement;

4) The Contractor has submitted one or more requests for payment under this Agreement that are fraudulent or persistently or flagrantly erroneous or misleading;

5) The Contractor has made an assignment or transfer of, or subcontracted, its responsibilities and obligations under this Agreement without obtaining the

Executive Director’s written consent or not in conformance with this Agreement;

6) The Contractor fails to obtain, renew, replace, or maintain the insurance coverage required by Agreement or causes or is at fault for damage to property or injury to persons that is not covered or not adequately covered by insurance and the Contractor fails to remedy the situation to the satisfaction of the Executive Director or Designee;

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7) The Contractor fails to obtain or properly and timely maintain any financial assurances required by this Agreement;

8) Any lien is filed against City property because of any act or omission of the Contractor and is not timely discharged, unless the Contractor furnishes to the City such bond or other financial assurance reasonably acceptable to the Executive Director or Designee to protect the interests of the City;

9) The Contractor has failed to obtain or maintain any required permit or license or has utilized personnel or workers not licensed or registered as required by law;

10) The Contractor has failed to deliver title or warranties or has failed to honor warranties as required by this Agreement;

11) The Contractor fails, within three (3) calendar days of being notified, to comply with, or fails to compel its subcontractors to comply with, the prevailing wage requirements or other City ordinances applicable to the type and nature of Work being performed under this Agreement; or

12) The Contractor or any of its officers or employees are convicted, plead nolo contendere, enter into a formal contract in which they admit guilt, enter a plea of guilty, or otherwise admit culpability to criminal offenses of bribery, kickbacks, collusive bidding, bid-rigging, antitrust, fraud, undue influence, theft, racketeering, extortion or any offense of a similar nature, in connection with the Contractor’s business.

C. Compensation: Upon termination of this Agreement by the City, with cause, under Subsection 6.B above, the Contractor shall be compensated for the Work that the

Executive Director or Designee determines to have been satisfactorily completed, except that the

City shall be entitled to keep any unpaid amount owing to the Contractor to the extent that said amount or some portion of said amount is needed to compensate the City for: 1) liquidated damages, if specified under Subsection 6.E below; 2) the costs of releasing any liens or satisfying any claims related to the Work; and 3) the costs of paying a new contractor for those services necessary to complete or rectify the Work or to repair or replace any damaged or lost property caused by the Breach. The Contractor shall have no claim of any kind whatsoever against the City for any termination with cause, except for compensation for the Work satisfactorily performed as described herein.

D. Remedies:

1) Termination: For any termination with cause of this Agreement, the

City shall have the right to any or all of the following remedies through the courts or other means of legal recourse available to the City: a) cancellation of this Agreement; b) actual damages or costs caused by Breach of the Contractor; and c) recovery of costs incurred by the City itself in paying for the release of liens related to the Work or in completing or rectifying the Work or in retaining and compensating another contractor to complete or rectify the Work, to the extent not covered in Subsection 6.C. above. In any legal action brought by the Contractor, the Contractor shall not be entitled to recover any more than the full amount, not previously paid, of any Work

Orders executed with and performed in whole or part by the Contractor. The City and the

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Contractor understand and agree that the rights of specific performance and to incidental, consequential, or punitive damages have been hereby expressly waived and released by both

Parties.

2) Liquidated Damages: If the Executive Director or Designee determines, for a Breach under Subsection 6.B above, not to terminate this Agreement but to apply liquidated damages as provided in this paragraph, the Contractor shall be liable to the City for liquidated damages in the amount of one hundred dollars ($100.00) per day, calculated from the day that the Executive Director or Designee issues notice to the Contractor of a Breach under

Subsection 6.B through a) the day before the Breach is remedied, or the day before a new Work

Order or new agreement is executed with another contractor to perform the Work, as so determined by the Executive Director or Designee. The Contractor and City hereby acknowledges and agrees that it would be impractical and extremely difficult to estimate the damages which the City might incur for said breach, and that, in the interest of assuring that the Work is timely and properly performed, the liquidated damages provided herein is the most fair and reasonable way to compensate the City for any delay or inadequate performance without termination of this

Agreement or litigation.

7. WHEN RIGHTS AND REMEDIES NOT WAIVED. In no event will any payment or other action by the City constitute or be construed to be a waiver by the City of any breach of covenant or default that may then exist on the part of the Contractor. No payment, other action, or inaction by the City when any breach or default exists will impair or prejudice any right or remedy available to it with respect to any breach or default. No assent, expressed or implied, to any breach of any term of this Agreement constitutes a waiver of any other breach.

8. INDEPENDENT CONTRACTOR. The Contractor is an independent contractor retained to perform services for limited periods of time. Neither the Contractor nor any of its employees are employees or officers of the City under Chapter 18 of the Denver Revised

Municipal Code, or for any purpose whatsoever. The Contractor is responsible for the operational management, errors and omissions of the Contractor’s employees, agents, and subcontractors.

Without limiting the foregoing, the Contractor understands and acknowledges that the Contractor and the Contractor’s employees, agents and subcontractors: a) are not entitled to workers’ compensation benefits through the City; b) are not entitled to unemployment insurance benefits unless unemployment compensation coverage is provided by the Contractor or some other entity besides the City; and c) are obligated to pay federal and state taxes on any monies earned pursuant to this Agreement. Furthermore, it is understood and agreed that nothing in this Agreement is intended, or shall be construed, to constitute a joint venture between the Parties.

9. INSURANCE.

A. General Conditions: The Contractor agrees to secure, at or before the time of execution of this Agreement, the following insurance covering all operations, goods or services provided pursuant to this Agreement. The Contractor shall keep the required insurance coverage in force at all times during the term of this Agreement, including any extension thereof, and during any warranty period. The required insurance shall be underwritten by an insurer licensed or authorized to do business in Colorado and rated by A.M. Best Company as “A-VIII" or better.

Each policy shall require notification to the City in the event any of the required policies are

IFB Emergency On-Call (various) 13 Roofing canceled or non-renewed before the expiration date thereof. Such written notice shall be sent to the parties identified in the Notices section of this Agreement. Such notice shall reference the City contract number listed on the signature page of this Agreement. Said notice shall be sent thirty

(30) days prior to such cancellation or non-renewal unless due to non-payment of premiums for which notice shall be sent ten (10) days prior. If such written notice is unavailable from the insurer, the Contractor shall provide written notice of cancellation, non-renewal and any reduction in coverage to the parties identified in the Notices section by certified mail, return receipt requested within three (3) business days of such notice by its insurer(s) and referencing the City’s contract number. The Contractor shall be responsible for the payment of any deductible or self-insured retention. The insurance coverages specified in this Agreement are the minimum requirements, and these requirements do not lessen or limit the liability of the Contractor. The Contractor shall maintain, at its own expense, any additional kinds or amounts of insurance that it may deem necessary to cover its obligations and liabilities under this Agreement.

B. Proof of Insurance: The Contractor may not commence services or work relating to this Agreement prior to placement of coverages required under this Agreement. The

Contractor certifies that the certificate of insurance attached as Exhibit F, preferably an ACORD form, complies with all insurance requirements of this Agreement. The City requests that the City’s contract number be referenced on the certificate of insurance. The City’s acceptance of a certificate of insurance or other proof of insurance that does not comply with all insurance requirements set forth in this Agreement shall not act as a waiver of the Contractor’s breach of this Agreement or of any of the City’s rights or remedies under this Agreement. The City’s Risk Management Office may require additional proof of insurance, including but not limited to policies and endorsements.

C. Additional Insureds: Additional Insureds: For Commercial General

Liability, Auto Liability and Excess Liability/Umbrella (if required), the Contractor and subcontractor’s insurer(s) shall include the City and County of Denver, its elected and appointed officials, employees and volunteers as additional insured.

D. Waiver of Subrogation: For all coverages required under this Agreement, the Contractor’s insurer shall waive subrogation rights against the City.

E. Subcontractors and Subconsultants: The Contractor shall confirm and document that all subcontractors and subconsultants (including independent contractors, suppliers or other entities providing goods or services required by this Agreement) procure and maintain coverage as approved by the Contractor and appropriate to their respective primary business risks considering the nature and scope of services provided.

F. Workers’ Compensation/Employer’s Liability Insurance: The

Contractor shall maintain the coverage as required by statute for each work location and shall maintain Employer’s Liability insurance with limits of $100,000 per occurrence for each bodily injury claim, $100,000 per occurrence for each bodily injury caused by disease claim, and

$500,000 aggregate for all bodily injuries caused by disease claims.

G. Commercial General Liability: The Contractor shall maintain a

Commercial General Liability insurance policy with minimum limits of $1,000,000 for each bodily

IFB Emergency On-Call (various) 14 Roofing injury and property damage occurrence, $2,000,000 products and completed operations aggregate

(if applicable), and $2,000,000 policy aggregate.

H. Business Automobile Liability: The Contractor shall maintain Automobile

Liability with minimum limits of $1,000,000 combined single limit applicable to all owned, hired and non-owned vehicles used in performing services under this Agreement.

10. DEFENSE AND INDEMNIFICATION.

A. The Contractor hereby agrees to defend, indemnify, reimburse and hold harmless the City, its appointed and elected officials, agents and employees for, from and against all liabilities, claims, judgments, suits or demands for damages to persons or property arising out of, resulting from, or relating to the work performed under this Agreement (“Claims”), unless such

Claims have been specifically determined by the trier of fact to be the sole negligence or willful misconduct of the City. This indemnity shall be interpreted in the broadest possible manner to indemnify the City for any acts or omissions of the Contractor or its subcontractors either passive or active, irrespective of fault, including the City’s concurrent negligence whether active or passive, except for the sole negligence or willful misconduct of the City.

B. The Contractor’s duty to defend and indemnify the City shall arise at the time written notice of the Claim is first provided to the City regardless of whether Claimant has filed suit on the Claim. The Contractor’s duty to defend and indemnify the City shall arise even if the City is the only party sued by claimant and/or claimant alleges that the City’s negligence or willful misconduct was the sole cause of claimant’s damages.

C. The Contractor will defend any and all Claims which may be brought or threatened against the City and will pay on behalf of the City any expenses incurred by reason of such Claims including, but not limited to, court costs and attorney fees incurred in defending and investigating such Claims or seeking to enforce this indemnity obligation. Such payments on behalf of the City shall be in addition to any other legal remedies available to the City and shall not be considered the City’s exclusive remedy.

D. Insurance coverage requirements specified in this Agreement shall in no way lessen or limit the liability of the Contractor under the terms of this indemnification obligation.

The Contractor shall obtain, at its own expense, any additional insurance that it deems necessary for the City’s protection.

E. This defense and indemnification obligation shall survive the expiration or termination of this Agreement.

11. COLORADO GOVERNMENTAL IMMUNITY ACT. The Parties hereto understand and agree that the City is relying upon, and has not waived, the monetary limitations and all other rights, immunities and protection provided by the Colorado Governmental Act, § 24-

10-101 et seq., C.R.S.

12. TAXES, CHARGES AND PENALTIES. The City is not liable for the payment of taxes, late charges or penalties of any nature, except for any additional amounts that the City may be required to pay under the City’s prompt payment ordinance D.R.M.C. § 20-107, et seq.

IFB Emergency On-Call (various) 15 Roofing

The Contractor shall promptly pay when due, all taxes, bills, debts and obligations it incurs performing the services under this Agreement and shall not allow any lien, mortgage, judgment or execution to be filed against City property.

13. COMPLIANCE WITH ALL LAWS. The Contractor shall perform or cause to be performed all services in full compliance with all applicable laws, rules, regulations and codes of the United States, the State of Colorado; and with the Charter, ordinances, rules, regulations and

Executive Orders of the City and County of Denver.

14. COMPLIANCE WITH DENVER WAGE LAWS.