RFP 50009_Exhibit D - Sample Agreement.pdf

ENTITY NAME

Environmental and Asbestos Consultant Agreement

ESEQD-202476430-00

AGENCY MANAGED CITY-WIDE MASTER

ENVIRONMENTAL AND ASBESTOS CONSULTANT AGREEMENT

THIS AGENCY MANAGED CITY-WIDE MASTER ENVIRONMENTAL

ASBESTOS CONSULTANT AGREEMENT (the “Agreement”) is made and entered into between the CITY AND COUNTY OF DENVER, a municipal corporation of the State of

Colorado (the “City”), and [NAME], [FORMATION], whose business address is [ADDRESS]

(the “Consultant”), jointly (“the Parties.”).

WHEREAS, the City is seeking to act with urgency to retain Consultant for on-call abatement and remediation services, including asbestos containing material inspections, air monitoring and oversight, lead-based paint and industrial hygiene services; and

WHEREAS, the Consultant is capable of performing such abatement and remediation services;

WHEREAS, the City awarded the Agreement to the Consultant as a result of a competitive selection process conducted by the City in accordance with its rules and procedures; and

WHEREAS, the City wishes such work to be performed on an on-call, as needed emergency basis.

NOW THEREFORE, the Parties agree as follows:

1. COORDINATION AND LIAISON:

a. Consultant shall fully coordinate all services performed under the

Agreement through the Executive Director of the Department of Public Health and Environment

(“DDPHE”) (“Executive Director”), or the Executive Director’s designee. The Executive Director

SAMPLE AGREEMENT

Exhibit D

Environmental and Asbestos Consultant Agreement

ESEQD-202476430-00

hereby designates the DDPHE Environmental Quality Asbestos Program Manager (“EQ Program

Manager”) as the Executive Director’s authorized representative to issue all notices to proceed and administering, coordinating, and initially approving the day-to-day services to be performed by

Consultant under the Agreement. Consultant shall submit correspondence, invoices, reports, and submittals to the project manager identified in a particular notice to proceed (“Project Manager”).

b. For work performed at the Denver International Airport (“DEN”), Consultant shall fully coordinate all services performed through the DEN Chief Executive Officer

(“CEO”), or the CEO designee, or successor in function following approval from or coordination with the EQ Program Manager. Until otherwise notified by the CEO, the Director of

Environmental Programs or his successor-in-interest is the (“DEN Project Manager”) for this

Agreement and is designated as the authorized representative of the CEO through whom services performed for DEN under this Agreement shall be directed and coordinated. Consultant shall submit correspondence, invoices, reports, and submittals in a particular notice to proceed to the

DEN Project Manager. All references in the Agreement to “EQ Program Manager” and “Project

Manager” shall mean the “DEN Project Manager” where work is being performed at DEN.

c. Consultant shall designate an account manager to serve as a single point of contact for the EQ Program Manager. As requested, Consultant shall provide the account manager’s contact information to the Project Manager.

2. TERM: The term of the Agreement shall commence on the date of execution set forth on the City’s signature page and shall expire five (5) years thereafter (the “Term”). Subject to the Executive Director’s prior written authorization, Consultant shall complete any Services in progress as of the expiration date and the Term of the Agreement will extend until the Services is completed or earlier terminated by the Executive Director. At the City’s sole discretion, the City may extend the Agreement under the same terms and conditions set forth in the Agreement by a written amendment to the Agreement. Contractor hereby agrees that if the City elects to extend the

Agreement as stated above, that it shall extend the Agreement under the same terms and conditions set forth in the Agreement.

3. SERVICES TO BE PERFORMED:

As the Executive Director or the EQ Program Manager directs, the Consultant shall diligently undertake, perform, and complete all of the services and produce all the deliverables set forth in

Exhibit A, the Scope of Work, and other related services as requested (collectively the “Services” or “Work”) to the City’s satisfaction.

4. PROJECT AWARDS:

a. To initiate work hereunder, the City may award service requests (“Service

Request”) by mini-bid process for competitive bidding when warranted. Alternatively, the work may be awarded as a direct selection if an emergency exists or at the EQ Program Manager’s discretion. Either way, the Consultant will be directed by the EQ Program Manager whether to submit a lump sum cost proposal or time and materials not to exceed cost proposal. The selected

Consultant shall provide detailed pricing information prior to executing a Service Request no matter the circumstances.

b. In response to the City’s Service Request or direct selection and within the time period and manner requested by the EQ Program Manager, Consultant shall provide a proposed statement of work, including a project timeline, all costs, and if applicable, estimated quantities and costs of materials, and any other information requested, to the EQ Program

Manager.

c. Services will be authorized by issuance of a notice to proceed (“NTP”).

Consultant shall not commence any work until it receives the NTP from the EQ Program Manager authorizing the performance of any services. The City will not encumber funds for any services until it issues an NTP. Notwithstanding any other term or condition of the Agreement, nothing in the Agreement places any obligation on the City to proceed with any phase beyond the latest phase authorized by a written NTP (or amendment thereto) or guarantees Consultant any minimum amount of work.

5. COMPENSATION AND PAYMENT:

a. Fee: As full compensation for Services and reimbursable expenses incurred, the City will pay Consultant the lesser of the maximum fee to be set forth in the corresponding NTP or an amount based on Consultant’s periodic invoices. Amounts billed for

Services rendered and expenses incurred may not exceed the hourly rates and unit costs provided in Exhibit B.

b. Markup for Overhead and Profit:

(1) The Consultant shall be an entitled up to 15% markup on direct costs for:

A. Subcontractor’s work, including labor;

B. Materials and Supplies – incorporated in or consumed by the work; and

C. Equipment – owned and/or rented (other than small tools) and incorporated in or consumed by the work.

(2) Rates and Markup are nonnegotiable for a period of five years.

(3) Consultant’s percentage markup on subcontractor work shall be considered to support the full cost of office supervisors and assistants, including all clerical and general office help; review and coordination; estimating; expediting; office equipment and supplies, telephone, fax, conformance to OSHA requirements, safety programs, and all other general contractor company expenses. These percentage markups shall be applied one time only for each Service Request or Service Request Change and shall not pyramid in any way.

(4) Bonds, Insurance, Permits, and Taxes shall be reimbursed at the actual cost associated with all required bond riders, insurance, permits, licenses, and sales, use or other taxes related to the Work.

(5) A Total Price to perform or complete the Work, the sum of all covered and uncovered work amount, must be in each Service Request.

(6) If it is later determined that the pricing was not correct due to inaccurate or incomplete pricing data by the Consultant or any subcontractor or supplier, the price shall be reduced accordingly and the Service Request cost modified by a Service Request Change.

c. Reimbursable Expenses: The reimbursable expenses identified in Exhibit

B are the only expenses permitted under the Agreement, and subject to subparagraph 5.a., will be reimbursed at the rates set forth in Exhibit B. Consultant shall include the anticipated cost of reimbursable expenses in its proposed statement of services. No other reimbursable expenses are permitted under the Agreement and Consultant is responsible for any other expense it incurs as its cost of doing business.

d. Invoicing: Consultant shall provide the City with a monthly invoice in a format and with a level of detail acceptable to the City including all supporting documentation required by the City, which is stated in the issued NTP by the EQ Program Manager. The City’s

Prompt Payment Ordinance, §§ 20-107 to 20-118, D.R.M.C., applies to invoicing and payment under this Agreement.

e. Maximum Contract Amount:

(1) Notwithstanding any other provision of the Agreement, the City’s maximum payment obligation will not exceed [AMOUNT] DOLLARS AND NO CENTS

($000,000.00) (the “Maximum Contract Amount”). The City is not obligated to execute an

Agreement or any amendments for any further services, including any services Consultant beyond those specifically described in Exhibit A, Scope of Work. Any services performed beyond those in Exhibit A, Scope of Work are performed at Consultant’s risk and without authorization under the Agreement.

(2) The City’s payment obligation, whether direct or contingent, extends only to funds appropriated annually by the Denver City Council, paid into the Treasury of the City, and encumbered for the purpose of the Agreement. The City does not by the Agreement irrevocably pledge present cash reserves for payment or performance in future fiscal years. The

Agreement does not and is not intended to create a multiple-fiscal year direct or indirect debt or financial obligation of the City.

6. QUALIFIED PERSONNEL: Consultant shall utilize the qualified personnel required for the project as described in Exhibit A. If the City determines that the performance of personnel is not acceptable, it shall notify Consultant and may give Consultant notice of the period of time that the City considers reasonable to correct this performance. If the City notifies

Consultant that certain of its personnel should be reassigned, Consultant shall use its best efforts to obtain adequate substitute personnel within ten (10) days from the date of the City’s notice.

Consultant shall provide experienced personnel to perform and complete all Services under the

Agreement.

7. ACCESS TO NON-CITY OWNED REAL PROPERTY: When access to real property owned by third-parties must be gained to perform work under the Agreement, Consultant is responsible for obtaining the necessary permission and releases from the property owner to allow

Consultant to gain access and work on non-City property. For access to private property temporarily under control of Denver Police or Fire departments, Consultant must obtain permission to enter from the on-site commander and comply with all requested precautions

8. STATUS OF CONSULTANT: Consultant is an independent Consultant retained to perform professional or technical services for limited periods of time. Neither Consultant 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.

9. TERMINATION:

a. The City has the right to terminate the Agreement with cause upon written notice effective immediately, and without cause upon twenty (20) days prior written notice to

Consultant. However, nothing gives Consultant the right to perform services under the Agreement beyond the time when its services become unsatisfactory to the Executive Director.

b. Notwithstanding the preceding paragraph, the City may terminate the

Agreement if Consultant or any of its officers or employees are convicted, plead nolo contendere, enter into a formal agreement 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 Consultant’s business. Termination for the reasons stated in this paragraph is effective upon receipt of notice.

c. Upon termination of the Agreement, with or without cause, Consultant shall have no claim against the City by reason of, or arising out of, incidental or relating to termination, except for compensation for work duly requested and satisfactorily performed as described in the

Agreement.

d. If the Agreement is terminated, the City is entitled to and will take possession of all materials, equipment, tools and facilities it owns that are in Consultant’s possession, custody, or control by whatever method the City deems expedient. Consultant shall deliver all documents in any form that were prepared under the Agreement and all other items, materials and documents that have been paid for by the City to the City. These documents and materials are the property of the City. Consultant shall mark all copies of work product that are incomplete at the time of termination “DRAFT- INCOMPLETE”.

9. EXAMINATION OF RECORDS AND AUDITS:

a. Any authorized agent of the City, including the City Auditor or his or her representative, has the right to access, and the right to examine, copy and retain copies, at City’s election in paper or electronic form, any pertinent books, documents, papers and records related to

Consultant’s performance pursuant to this Agreement, provision of any goods or services to the

City, and any other transactions related to this Agreement. Consultant shall cooperate with City representatives and City representatives shall be granted access to the foregoing documents and information during reasonable business hours and until the latter of three (3) years after the final payment under the Agreement or expiration of the applicable statute of limitations. When conducting an audit of this Agreement, the City Auditor shall be subject to government auditing standards issued by the United States Government Accountability Office by the Comptroller

General of the United States, including with respect to disclosure of information acquired during the course of an audit. No examination of records and audits pursuant to this paragraph shall require

Consultant to make disclosures in violation of state or federal privacy laws. Consultant shall at all times comply with D.R.M.C. 20-276.

10. 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 Consultant. 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 the Agreement constitutes a waiver of any other breach.

11. INSURANCE:

a. General Conditions. Consultant 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. Consultant shall keep the required insurance coverage in force at all times during the term of the 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 be 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, Consultant 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. Consultant 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 Consultant. The

Consultant 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. Consultant may not commence services or work relating to this Agreement prior to placement of coverages required under this Agreement.

Consultant certifies that the certificate of insurance attached as Exhibit C, 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 Consultant’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. For Commercial General Liability, Business Auto

Liability, Consultants Pollution Liability, and Excess Liability/Umbrella (if required). Consultant and subcontractor’s insurer(s) shall name the City and County of Denver, its elected and appointed officials, employees and volunteers as additional insured and any other person or entity upon written request by the City.

d. Waiver of Subrogation. For all coverages required under the

Agreement, with the exception of Professional Liability, Consultant’s insurer shall waive subrogation rights against the City.

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

f. Workers’ Compensation and Employer’s Liability Insurance.

Consultant 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. Consultant shall maintain a

Commercial General Liability insurance policy with limits of $1,000,000 for each occurrence, $1,000,000 for each personal and advertising injury claim, $2,000,000 products and completed operations aggregate, and $2,000,000 policy aggregate.

h. Business Automobile Liability. Consultant shall maintain Business

Automobile Liability, or its equivalent, 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. If transporting wastes, hazardous material, or regulated substances, Consultant shall carry a pollution coverage endorsement and an MCS 90 endorsement on their policy. Transportation coverage under the Consultants Pollution Liability policy shall be an acceptable replacement for a pollution endorsement to the Business Automobile Liability policy.

i. Consultant’s Pollution Liability. Consultant shall maintain minimum limits of $1,000,000 per occurrence and $2,000,000 policy aggregate. Policy to include bodily injury;

property damage including loss of use of damaged property; defense costs including costs and expenses incurred in the investigation, defense or settlement of claims; and clean-up costs. Policy shall include a severability of interest or separation of insured provision (no insured vs. insured exclusion) and a provision that coverage is primary and non-contributory with any other coverage or self-insurance maintained by the City.

j. Professional Liability (Errors & Omissions): Consultant shall maintain minimum limits of $1,000,000 per claim and $1,000,000 policy aggregate limit. The policy shall be kept in force, or a Tail policy placed, for three (3) years for all contracts except construction contracts for which the policy or Tail shall be kept in place for eight (8) years.

k. Additional Provisions.

(1) For Commercial General Liability, the policy must provide the following:

(i) That this Agreement is an Insured Contract under the policy;

(ii) Defense costs are outside the limits of liability;

(iii) A severability of interests, separation of insureds provision (no insured vs. insured exclusion); and

(iv) A provision that coverage is primary and non-contributory with other coverage or self-insurance maintained by the City.

(2) For claims-made coverage:

(a) The retroactive date must be on or before the contract date or the first date when any goods or services were provided to the City, whichever is earlier.

(b) Consultant shall advise the City in the event any general aggregate or other aggregate limits are reduced below the required per occurrence limits. At their own expense, and where such general aggregate or other aggregate limits have been reduced below the required per occurrence limit, the Consultant will procure such per occurrence limits and furnish a new certificate of insurance showing such coverage is in force.

12. DEFENSE AND INDEMNIFICATION:

a. Consultant hereby agrees to defend, indemnify, reimburse and hold harmless 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 City for any acts or omissions of Consultant or its subcontractors either passive or active, irrespective of fault, including City’s concurrent negligence whether active or passive, except for the sole negligence or willful misconduct of City.

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

c. Consultant will defend any and all Claims which may be brought or threatened against City and will pay on behalf of 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 City shall be in addition to any other legal remedies available to City and shall not be considered City’s exclusive remedy.

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

The Consultant 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.

13. TAXES, CHARGES AND PENALTIES:

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

b. Consultant is solely liable and responsible for and shall pay all fines, fees, penalties, and any other monetary infraction of any nature arising out of or related to Services, including, without limitation, failure to comply with laws and regulations applicable to the

Services and failure to comply with the deadlines imposed for Services. This obligation survives the expiration or termination of the Agreement.

14. ASSIGNMENT; SUBCONTRACTING: Consultant shall not voluntarily or involuntarily assign any of its rights or obligations, or subcontract performance obligations, under the Agreement without obtaining the Executive Director’s prior written consent. Any assignment or subcontracting without such consent will be ineffective and void,and shall be cause for termination of the Agreement by the City. The Executive Director has sole and absolute discretion whether to consent to any assignment or subcontracting, or to terminate the Agreement because of unauthorized assignment or subcontracting. In the event of any subcontracting or unauthorized assignment: (i) Consultant shall remain responsible to the City; and (ii) no contractual relationship shall be created between the City and any subcontractor or assign.

15. INUREMENT: The rights and obligations of the Parties to the Agreement inure to the benefit of and shall be binding upon the Parties and their respective successors and assigns, provided assignments are consented to in accordance with the terms of the Agreement.

16. NO THIRD PARTY BENEFICIARY: Enforcement of the terms of the

Agreement and all rights of action relating to enforcement are strictly reserved to the Parties.

Nothing contained in the Agreement gives or allows any claim or right of action to any third person or entity. Any person or entity other than the City or Consultant receiving services or benefits pursuant to the Agreement is an incidental beneficiary only.

17. NO AUTHORITY TO BIND CITY TO CONTRACTS: Consultant lacks any authority to bind the City on any contractual matters. Final approval of all contractual matters that purport to obligate the City must be executed by the City in accordance with the City’s Charter and the Denver Revised Municipal Code.

18. SEVERABILITY: Except for the provisions of the Agreement requiring appropriation of funds and limiting the total amount payable by the City, if a court of competent jurisdiction finds any provision of the Agreement or any portion of it to be invalid, illegal, or unenforceable, the validity of the remaining portions or provisions will not be affected, if the intent of the Parties can be fulfilled.

19. CONFLICT OF INTEREST:

a. No employee of the City shall have any personal or beneficial interest in the services or property described in the Agreement. Consultant shall not hire, or contract for services with, any employee or officer of the City that would be in violation of the City’s Code of Ethics, D.R.M.C. §2-51, et seq. or the Charter §§ 1.2.8, 1.2.9, and 1.2.12.

b. Consultant shall not engage in any transaction, activity or conduct that would result in a conflict of interest under the Agreement. Consultant represents that it has disclosed any and all current or potential conflicts of interest. A conflict of interest shall include transactions, activities or conduct that would affect the judgment, actions or work of Consultant by placing Consultant’s own interests, or the interests of any party with whom Consultant has a contractual arrangement, in conflict with those of the City. The City, in its sole discretion, will determine the existence of a conflict of interest and may terminate the Agreement in the event it determines a conflict exists, after it has given Consultant written notice describing the conflict.

20. NOTICES: All notices required by the terms of the Agreement must be hand delivered, sent by overnight courier service, mailed by certified mail, return receipt requested, or mailed via United States mail, postage prepaid, if to Consultant at the address first above written, and if to the City at:

Executive Director of Public Health and Environment or Designee 201 W. Colfax Avenue, 8th Floor Denver, Colorado 80202

With a copy of any such notice to:

Denver City Attorney’s Office 1437 Bannock St., Room 353 Denver, Colorado 80202

Notices hand delivered or sent by overnight courier are effective upon delivery. Notices sent by certified mail are effective upon receipt. Notices sent by mail are effective upon deposit with the

U.S. Postal Service. The Parties may designate substitute addresses where or persons to whom notices are to be mailed or delivered. However, these substitutions will not become effective until actual receipt of written notification.

21. DISPUTES: All disputes between the City and Consultant arising out of or regarding the Agreement will be resolved by administrative hearing pursuant to the procedure established by D.R.M.C. § 56- 106(b)-(f). For the purposes of that administrative procedure, the

City official rendering a final determination shall be the Executive Director as defined in this

Agreement.

22. SENSITIVE SECURITY INFORMATION: Consultant acknowledges that, in the course of performing its work under this Agreement, that it may be given access to Sensitive

Security Information (“SSI”), as that material is described in federal regulations, 49 C.F.R. Part

520. Consultant specifically agrees to comply with all requirements of the applicable federal regulations and DEN Standard Policy and Procedure 6003. Consultant understands any questions it may have regarding its obligations with respect to SSI must be referred to the DEN Project

Manager or his or her designated representative.

24. AIRPORT SECURITY:

a. It is a material requirement of this Agreement that when performing work at DEN under this Agreement the Consultant shall comply with all rules, regulations, written policies and authorized directives from the City and/or the Transportation Security Administration with respect to Airport security. Consultant shall conduct all of its activities at the Airport in compliance with the Airport security program, which is administered by the Security Section of the Airport Operations Division, Department of Aviation. Violation by Consultant or any of its employees or subcontractors of any rule, regulation, or authorized directive from the City or the

Transportation Security Administration with respect to Airport Security shall be grounds for immediate termination by the City of this Contract for cause.

b. Upon execution of this Agreement, Consultant shall promptly meet with the

Airport’s Assistant Security Manager to establish badging requirements for Consultant’s operations under this Agreement. Consultant shall obtain the proper access authorizations for all of its employees and subcontractors who will enter the Airport to perform work or make deliveries, and shall be responsible for each such person’s compliance with all Airport rules and regulations, including without limitation those pertaining to security. Any person who violates such rules may be subject to revocation of his/her access authorization. The failure of Consultant to complete any required services hereunder shall not be excused on account of the revocation for good cause of access authorization of any person.

c. The security status of the Airport is subject to change without notice. If the security status of the Airport changes at any time during the term of this Agreement, Consultant shall take immediate steps to comply with security modifications which occur as a result of the changed status. Consultant may at any time obtain current information from the Airport Security

Office regarding the Airport’s security status in relation to Consultant’s operations at the Airport.

d. Consultant shall return to the City at the expiration or termination of this

Agreement, or upon demand by the City, all access keys or access badges issued to it for any area of the Airport, whether or not restricted. If Consultant fails to do so, Consultant shall be liable to reimburse the City for all the City’s costs for work required to prevent compromise of the Airport security system. The City may withhold funds in the amount of such costs from any amounts due and payable to Consultant under this Agreement.

25. DISPUTES: All disputes between the City and Consultant arising out of or regarding the Agreement will be resolved by administrative hearing pursuant to the procedure established by D.R.M.C. § 56-106(b)-(f). For the purposes of that administrative procedure, the

City official rendering a final determination shall be the Executive Director as defined in this

Agreement.

26. GOVERNING LAW; BOND ORDINANCES; VENUE: The Agreement will be construed and enforced in accordance with applicable federal law, the laws of the State of

Colorado, and the Charter, Revised Municipal Code, ordinances, regulations and Executive Orders of the City and County of Denver, which are expressly incorporated into the Agreement. Unless otherwise specified, any reference to statutes, laws, regulations, charter or code provisions, ordinances, executive orders, or related memoranda, includes amendments or supplements to same. This Agreement is in all respects subject and subordinate to any and all City bond ordinances applicable to the Denver Municipal Airport System and to any other bond ordinances which amend, supplement, or replace such bond ordinances. Venue for any legal action relating to the Agreement will be in the District Court of the State of Colorado, Second Judicial District

(Denver District Court).

27. NO DISCRIMINATION IN EMPLOYMENT: In connection with the performance of work under the Agreement, the Consultant may not refuse to hire, discharge, promote, demote, or discriminate in matters of compensation against any person otherwise qualified, solely because of race, color, religion, national origin, ethnicity, citizenship, immigration status, gender, age, sexual orientation, gender identity, gender expression, marital status, source of income, military status, protective hairstyle, or disability. The Consultant shall insert the foregoing provision in all subcontracts.

28. COMPLIANCE WITH ALL LAWS: Consultant 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.

30. FEDERAL AND SPECIAL FUND REQUIREMENTS: When federal or special funds are used for NTPs, either directly or indirectly, the Consultant is subject to all terms and conditions set forth in the source fund as identified by and incorporated into the NTP.

31. LEGAL AUTHORITY: Consultant represents and warrants that it possesses the legal authority, pursuant to any proper, appropriate and official motion, resolution or action passed or taken, to enter into the Agreement. Each person signing and executing the Agreement on behalf of Consultant represents and warrants that he has been fully authorized by Consultant to execute the Agreement on behalf of Consultant and to validly and legally bind Consultant to all the terms, performances and provisions of the Agreement. The City shall have the right, in its sole discretion, to either temporarily suspend or permanently terminate the Agreement if there is a dispute as to the legal authority of either Consultant or the person signing the Agreement to enter into the

Agreement.

32. NO CONSTRUCTION AGAINST DRAFTING PARTY: The Parties and their respective counsel have had the opportunity to review the Agreement, and the Agreement will not be construed against any party merely because any provisions of the Agreement were prepared by a particular party.

33. ORDER OF PRECEDENCE: In the event of any conflicts between the language of the Agreement and the exhibits, the language of the Agreement controls.

34. INTELLECTUAL PROPERTY RIGHTS: The City and Consultant intend that all property rights to any and all materials, text, logos, documents, booklets, manuals, references, guides, brochures, advertisements, URLs, domain names, music, sketches, web pages, plans, drawings, prints, photographs, specifications, software, data, products, ideas, inventions, and any other work or recorded information created by Consultant and paid for by the City pursuant to the

Agreement, in preliminary or final form and on any media whatsoever (collectively, “Materials”), shall belong to the City. Consultant shall disclose all such items to the City and shall register such items in the name of the City and County of Denver unless the Executive Director directs otherwise in writing. To the extent permitted by the U.S. Copyright Act, 17 USC § 101, et seq., the Materials are a “work made for hire” and all ownership of copyright in the Materials shall vest in the City at the time the Materials are created. To the extent that the Materials are not a “work made for hire,”

Consultant (by the Agreement) sells, assigns and transfers all right, title and interest in and to the

Materials to the City, including the right to secure copyright, patent, trademark, and other intellectual property rights throughout the world and to have and to hold such rights in perpetuity.

35. SURVIVAL OF CERTAIN PROVISIONS: The terms of the Agreement and any exhibits and attachments that by reasonable implication contemplate continued performance, rights, or compliance beyond expiration or termination of the Agreement survive the Agreement and will continue to be enforceable. Without limiting the generality of this provision, Consultant’s obligations to provide insurance and to indemnify the City will survive for a period equal to any and all relevant statutes of limitation, plus the time necessary to fully resolve any claims, matters, or actions begun within that period.

36. ADVERTISING AND PUBLIC DISCLOSURE: Consultant shall not include any reference to the Agreement or to services performed pursuant to the Agreement in any of

Consultant’s advertising or public relations materials without first obtaining the written approval of the Executive Director. Any oral presentation or written materials related to services performed under the Agreement will be limited to services that have been accepted by the City. Consultant shall notify the Executive Director in advance of the date and time of any presentation. Nothing in this provision precludes the transmittal of any information to City officials.

37. CONFIDENTIAL INFORMATION:

a. City Information: Consultant acknowledges and accepts that, in performance of all work under the terms of this Agreement, Consultant may have access to

Proprietary Data or confidential information that may be owned or controlled by the City, and that the disclosure of such Proprietary Data or information may be damaging to the City or third parties.

Consultant agrees that all Proprietary Data, confidential information or any other data or information provided or otherwise disclosed by the City to Consultant shall be held in confidence and used only in the performance of its obligations under this Agreement. Consultant shall exercise the same standard of care to protect such Proprietary Data and information as a reasonably prudent Consultant would to protect its own proprietary or confidential data. “Proprietary Data” shall mean any materials or information which may be designated or marked “Proprietary” or

“Confidential”, or which would not be documents subject to disclosure pursuant to the Colorado

Open Records Act or City ordinance, and provided or made available to Consultant by the City.

Such Proprietary Data may be in hardcopy, printed, digital or electronic format.

38. CITY EXECUTION OF AGREEMENT: The Agreement will not be effective or binding on the City until it has been fully executed by all required signatories of the City and

County of Denver, and if required by Charter, approved by the City Council.

39. AGREEMENT AS COMPLETE INTEGRATION-AMENDMENTS: The

Agreement is the complete integration of all understandings between the Parties as to the subject matter of the Agreement. No prior, contemporaneous or subsequent addition, deletion, or other modification has any force or effect, unless embodied in the Agreement in writing. No oral representation by any officer or employee of the City at variance with the terms of the Agreement or any written amendment to the Agreement will have any force or effect or bind the City.

40. USE, POSSESSION OR SALE OF ALCOHOL OR DRUGS: Consultant shall cooperate and comply with the provisions of Executive Order 94 and its Attachment A concerning the use, possession or sale of alcohol or drugs. Violation of these provisions or refusal to cooperate with implementation of the policy can result in contract personnel being barred from City facilities and from participating in City operations.

41. COMPLIANCE WITH DENVER WAGE LAWS: To the extent applicable to the Consultant’s provision of Services hereunder, the Consultant shall comply with, and agrees to be bound by, all rules, regulations, requirements, conditions, and City determinations regarding the City’s Minimum Wage and Civil Wage Theft Ordinances, Sections 58-1 through 58-26

D.R.M.C., including, but not limited to, the requirement that every covered worker shall be paid all earned wages under applicable state, federal, and city law in accordance with the foregoing

D.R.M.C. Sections. By executing this Agreement, the Consultant expressly acknowledges that the

Consultant is aware of the requirements of the City’s Minimum Wage and Civil Wage Theft

Ordinances and that any failure by the Consultant, or any other individual or entity acting subject to this Agreement, to strictly comply with the foregoing D.R.M.C. Sections shall result in the penalties and other remedies authorized therein.

42. ELECTRONIC SIGNATURES AND ELECTRONIC RECORDS: Consultant consents to the use of electronic signatures by the City. The Agreement, and any other documents requiring a signature under the Agreement, may be signed electronically by the City in the manner specified by the City. The Parties agree not to deny the legal effect or enforceability of the

Agreement solely because it is in electronic form or because an electronic record was used in its formation. The Parties agree not to object to the admissibility of the Agreement in the form of an electronic record, or a paper copy of an electronic document, or a paper copy of a document bearing an electronic signature, on the ground that it is an electronic record or electronic signature or that it is not in its original form or is not an original.

Exhibit List

EXHIBIT A – Scope of Work.

EXHIBIT B - Rates.

EXHIBIT C - Certificate of Insurance.

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