RFP-PW-25-017 Materials Testing.pdf

City of Commerce City

RFP-PW-25-017, Materials Testing Rev. Nov. 2022

August 14, 2025

REQUEST FOR PROPOSALS

Construction Materials Testing Services MSA

RFP-PW-25-017

Meeting Notes-Agenda

Date

City of Commerce City, Colorado Public Works - Facilities

TABLE OF CONTENTS

Section Page

1. INVITATION 3

2. SELECTION SCHEDULE/KEY DATES 4

3. COMMERCE CITY INFORMATION 5

4. SCOPE OF SERVICES 6

5. PROPOSAL FORM 8

6. EVALUATION CRITERIA & SELECTION PROCESS 11

7. MISCELLANEOUS 12

8. METHOD OF SUBMITTAL 13

9. DRAFT CONTRACT (Attachment A) 14

RFP-PW-25-017, Materials Testing Rev. Nov. 2022

1. INVITATION

The City of Commerce City (“City”) is soliciting proposals from qualified vendors

(“Respondents”) to provide material testing services and inspections in support of various City capital construction projects as described in this Request for Proposals (“RFP”). The selected

Respondent is expected to provide soil, concrete, steel testing and material observations as more fully detailed in the Scope of Services section of this RFP (“Services”)

This RFP provides a general description of services anticipated, submittal requirements, outlines selection criteria and the selection process. A response to this RFP (“Proposal”) should serve as a complete approach to providing the services. Joint submittals are encouraged to ensure the ability to provide all services requested in this scope. Any proposed subcontractors/team members must be identified and their roles clearly defined in the Proposal.

The City intends to execute a contract with an anticipated notice to proceed date of October 17, 2025, with the selected Respondent (“Consultant”) on a non-exclusive basis for a term that encompasses the length of time the Services are anticipated to require, subject to annual appropriation. Any selected Respondent will be expected to enter into a Master Services

Agreement (Attachment A) with the City consistent with the terms of this RFP.

Submission requirements and deadlines are detailed in Sections 2 and 6 of this RFP:

• The City uses the Rocky Mountain E-Purchasing System (BidNet) in the advertisement and facilitation of solicitations. Respondents must only rely on documents provided online through BidNet or received directly from the Procurement official.

www.bidnetdirect.com//city-of-commerce-city

• Questions regarding RFP requirements must be submitted online through BidNet by the deadline included in Section 2.

The City reserves the right to modify this RFP or the selection process, to cancel this RFP, to reject or accept any Proposal, and to waive any informalities or irregularities in any Proposal, without liability, at any time.

http://www.bidnetdirect.com/city-of-commerce-city

RFP-PW-25-017, Materials Testing Rev. Nov. 2022

2. SELECTION SCHEDULE /KEY DATES

The solicitation and selection process includes the following steps and schedule:

Publication and distribution of RFP: Thursday, August 14, 2025

Question submission deadline: Thursday, September 04, 2025

(5:00 p.m. MT)

Responses to questions posted (anticipated):

Within two (2) business days after question being posted

Proposal submission deadline: Thursday, September 11, 2025

(2:00 p.m. MT)

Review period (anticipated): 2 week(s)

Interviews (if any) (anticipated): Week of October 13, 2025

Selection (anticipated): Friday, October 17, 2025

Respondent submits insurance and other required documentation:

Within ten (10) calendar days of Notice of

Intent to Award

Execute contract (anticipated): Friday, October 31, 2025

The City reserves the right to modify this schedule as needed. Date for responses to questions and dates after the submission deadline are anticipated dates; modifications of those will not be posted.

3. COMMERCE CITY INFORMATION

Community Context

The City of Commerce City, Colorado is located in the rapidly growing Denver-metro area, just eight miles northeast of Denver in Adams County. The city is surrounded by the communities of

Brighton, Denver, Aurora, and Thornton, several wildlife parks (Barr Lake State Park to the north and the Rocky Mountain Arsenal National Wildlife Refuge to the east), and the Denver

International Airport (DIA). A key feature of the city is its location along major regional travel routes (roadways (I-76, I-270, and E-470), railways (Burlington Northern/Santa Fe and Union

Pacific), and air (Denver International Airport), which has helped to retain a strong industrial base for the city’s economy.

About Commerce City

As one of the state’s fastest growing cities, Commerce City is redefining itself for the next generation, building on historic values of community, industry, agriculture and family. Centrally located Colorado’s bustling Front Range, Commerce City is a Quality Community for a Lifetime, with 25 miles of trails, a championship golf course, 840 acres of open space and parks, one of the country’s largest soccer complexes and the nation’s largest urban wildlife refuge. Learn more at www.c3gov.com.

http://www.c3gov.com/

4. SCOPE OF SERVICES

Project Goals

Consultant will perform construction testing services to assist the City in achieving material testing and inspections for various City capital construction projects; this will be 3-year contract for on demand services under a Master Services Agreement not to exceed $500,000.00.

General Project Requirements

Consultant will prepare and deliver the following: material testing and inspections. All work shall be completed in accordance with the applicable City standards and applicable within the agreed timeline. Completion of the work includes but is not limited to items listed in this section.

Materials testing and inspections shall include, but is not limited to, the following:

1. Soil sample testing including proctors, gradations, and soil classification

2. In-situ materials testing including compaction, density, and moisture

3. Concrete testing including air and slump testing and cylinder breaks

4. Asphalt testing including density, binder content, gradation, and coring

5. Structural Steel weld inspections in field and fabrication shops, steel inspections.

6. Masonry Inspections, including collecting and testing grout cubes, and rebar inspections.

7. Building Code Inspections.

Key Deliverables & Tasks

The tasks identified below shall conform to the City’s branding, formatting, and case project processing.

The awarded vendor must:

1. Provide field and laboratory materials testing services and on-site visual inspection, including related manpower and equipment necessary.

2. Provide reporting as required by the City in a format acceptable to the City.

Materials Laboratory Requirements

The materials lab must have a current Certificate of Accreditation from AASHTO indicating compliance with AASHTO R18 "Recommended Practice for Establishing and Implementing a

Quality System for Construction Materials Testing Laboratories", and accreditation that recognizes compliance with ASTM 3666 and ASTM 3740 standards.

Personnel Requirements - Sampling and testing shall be performed by qualified personnel. Testing shall be the required materials test per the individual project specifications. Test results are to be returned to City in 24 hours or less so that Contractors may adjust their work and materials to be within specification with minimal delay. The testing technician shall bring non-conforming items to the immediate attention of the City and contractor.

RFP-PW-25-017, Materials Testing Rev. Nov. 2022

City Oversight

A designated individual will be responsible for management of the contract for the City (“Project

Manager”). The City will provide reasonable assistance to Consultant in the scheduling of meetings, interpretation of policy and procedural requirements, research relating to internal documents, coordination with outside agencies and City staff, but the City’s obligation will not limit Consultant’s obligations to perform the Services. The City will rely on the personnel, experience, and expertise of Consultant to ensure all necessary components of the scope of work are completed. City shall provide individual project specifications and drawings to testing firm for their use and compliance check.

Timeline and Budget

Consultant must complete all deliverables within the agreed-upon schedule and within the limits provided by the executed contract.

City Holidays

City Holidays currently include New Year's Day; Martin Luther King Day; President's Day;

Memorial Day; Juneteenth; Independence Day; Labor Day; Veteran's Day; Thanksgiving Day;

Day After Thanksgiving; Christmas Day.

Safety

Consultant shall be responsible for all safety training, procedures and requirements.

Contract Requirements

Consultant will perform all Services in accordance with the executed Master Services Agreement.

Please refer to Attachment A for all contract requirements, including insurance, indemnification, compensation, termination, and payment standards.

5. PROPOSAL FORM

The Proposal must be typed or computer generated and submitted in the format described below.

Proposals (not including examples of previous work) shall be no more than 20 pages (8.5” x 11”) with a minimum font size of 11 point. Marketing materials are discouraged and will count toward the 20-page maximum. The City requests that only information relevant to the Proposal be included. Proposals that do not meet the mandatory requirements herein may be considered non-compliant and may be rejected.

Respondents may request parts of their Proposals to remain confidential and must indicate such in the Proposals and on the appropriate proprietary or financial pages; provided, under no circumstances may an entire Proposal be marked or identified as proprietary. The City will take reasonable steps to keep confidential only documents actually prevented from disclosure under the Colorado Open Records Act (“CORA” or “Act”), C.R.S. § 24-72-201, et seq., which efforts may include notifying the Respondent of a CORA request and allowing the Respondent to take steps to prevent disclosure, where and when it is reasonably possible to do so. By submitting a Proposal, each Respondent releases the City from any claim of damage or loss arising from the release of confidential or proprietary information not clearly designated as such by a

Respondent, from the City’s disclosure of such information following the City’s prior notification to the Respondent, and from any claims arising from the release of documents not protected from disclosure under the Act.

Proposals shall include the following items in the order listed:

A. Cover Letter: A cover letter indicating the Respondent’s interest and identifying the entity or entities submitting the Proposal. The letter must identify the name, address, email address, and telephone number of the person to contact, along with other contact information for those authorized to represent the Respondent. The letter should also include:

• A signature by a representative of the Respondent authorized to bind the Respondent for the terms proposed.

• Any criteria expected by the City that Respondent will not provide.

• Any proposed changes to the draft Master Services Agreement (Attachment A).

• Any other information not appropriately contained in the body of the Proposal.

B. Experience & Qualifications

1. Provide a summary of your firm’s experience providing services similar to those outlined in this RFP.

RFP-PW-25-017, Materials Testing Rev. Nov. 2022

2. Identify key personnel proposed for this and briefly describe their role. Include resumes for each team member. This information must be provided for partners and subcontractors that may be involved in completing this work.

3. Include 3 to 5 client references along with a description of the services provided by your firm. Include:

a. Name of the agency and primary contact

b. Contact information, including email address

C. Methodology & Approach

1. A detailed description of the approach that will be used to deliver the Services and deliverables. The approach should follow the Scope of Services using a format of primary tasks with subtasks to provide context of the requested/proposed item. An example is as follows:

1. Scope Item

a. Description

b. Expectations

i. Meetings

ii. Deliverables

c. Key Respondent staff to perform the duties

D. Cost Proposal: Submit financial proposal with hourly rates for technicians, project manager, and engineer of record. Provide rate per required tests listed in Section 4 which includes:

1. Soil sample testing including proctors, gradations, and soil classification

2. In-situ materials testing including compaction, density, and moisture

3. Concrete testing including air and slump testing and cylinder breaks

4. Asphalt testing including density, binder content, gradation, and coring

5. Structural Steel weld inspections in field and fabrication shops, steel inspections.

6. Masonry Inspections, including collecting and testing grout cubes, and rebar inspections.

7. Building Code Inspections

E. Affirmative Participation Plans: An outline of affirmative steps that Respondent will take to assure that minority businesses, women’s business enterprises, and labor surplus area firms are used when possible. Affirmative steps must include: (1) placing qualified small and minority businesses and women's business enterprises on solicitation lists; (2) assuring

RFP-PW-25-017, Materials Testing Rev. Nov. 2022 that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources; (3) dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses, and women's business enterprises; (4) establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women's business enterprises; and (5) using the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Minority

Business Development Agency of the Department of Commerce.

F. Potential Conflicts of Interest: List any work that your firm or your proposed sub-consultants are currently performing for the City or for entities within the City.

G. Miscellaneous: Any supplemental information and attachments relevant to the Proposal, Respondent’s qualifications, or Respondent’s approach. Respondents are encouraged to expand upon the specifications to give additional evidence of their ability to provide the

Services.

RFP-PW-25-017, Materials Testing Rev. Nov. 2022

6. SELECTION & INTERVIEW PROCESS

The City will use a qualitative-based selection process to award the contract, where cost is one of several factors considered. Selection, if any, will be based on the Proposal deemed to be the best value to the City at the City’s sole discretion using the following criteria:

• Experience & Qualifications 30%

• Methodology & Approach 40%

• Proposed Cost 30%

The City may also consider the fact that a Respondent is located within the City.

All proposals will be reviewed and evaluated by the Selection Committee consisting of staff members of various city departments. The City reserves the right to request clarification or additional information from individual Respondents. The City may also consult additional resources for subject matter, expertise, and reference. By submitting a Proposal, Respondent authorizes the City to undertake such investigation as may be necessary to a verify Respondent’s qualifications and reputation. Respondents will execute releases as requested by the City to enable the City to obtain necessary information.

As part of the evaluation process, the City expects to interview some, but not necessarily all, of the Respondents. If selected for an interview, presentations will be limited in time with additional time for questions. Respondents may also be asked to supplement their submittals.

In addition to the criteria stated above, the City may consider without limitation, a Respondent’s financial resources, ability to comply with all legal and regulatory requirements, ability to perform the work and complete all work on time, history of performance, reputation ability to obtain necessary equipment, data, and facilities, and any other factor deemed important by the City, including location within the City. The City may select multiple Respondents to provide Services as needed by the City. Contracts involving expenditures exceeding $250,000 are subject to approval by the City Council; those exceeding $75,000 are subject to approval by the City

Manager; those up to $75,000 are subject to approval by a department director.

The City will enter into a negotiation with the selected Respondent(s) regarding fees and Scope of

Services. If an agreement cannot be reached with the chosen Respondent(s), the City may initiate negotiations with other Respondent(s). This process may continue until an agreement is reached with a Respondent(s). If the chosen Respondent(s) do not execute a contract within a specific deadline, the City reserves the right to award the contract to other Respondent(s).

The successful Respondent(s) shall commence work only after execution of an acceptable contract and direction from the City to proceed. The Respondent(s) must submit insurance documentation, a completed W-9, and additional documentation as requested by the City before the execution of any contract.

7. MISCELLANEOUS

A. NO COMMITMENT BY THE CITY. This RFP does not commit the City to award any contract, to pay any costs associated with this RFP, including the preparation or submission of a Proposal, interviews, supplemental Proposals or the negotiation of a contract, or to procure or contract for any services. The decisions of the City with respect to this RFP are final and without recourse to any Respondent. In acceptance of Proposals, the City reserves the right to negotiate further with one or more Respondents in the best interest of the City.

B. CHANGES TO RFP. Revisions to this RFP will be made through addenda published and made available to all Respondents on the City’s website and on the Rocky Mountain E-Purchasing

System (RMEPS). Any other communication, spoken and written, formal and informal, received by any representative of any Respondent from sources other than official addendum shall not be effective to vary any term of the RFP.

C. SUBSTANTIVE PROPOSALS. By submitting a Proposal, a Respondents certifies that: (a) the

Proposal is genuine and is not made in the interest of, or on behalf of and undisclosed person, firm, or corporation; (b) the Respondent has not directly or indirectly induced or solicited any other

Respondents to put in a false Proposal; (c) the Respondent has not solicited or induced any other person, firm, or corporation to refrain or abstain from proposing a Proposal; and (d) the Respondent has not sought by collusion to obtain for themselves any advantage over any other Respondents.

D. RESERVATION OF RIGHTS. The City reserves the right to reject any or all Proposals, in its sole discretion. The City reserves the right to modify this RFP or the selection process, to cancel this

RFP, and to waive any informalities or irregularities in any Proposal or in the selection process, without liability, at any time.

E. REQUIRED DOCUMENTS. The selection of any Respondent, and the award of any contract, is dependent on the completion of the Master Services Agreement, the receipt of the required

Certificate of Insurance and applicable endorsements, and the City’s receipt of a completed

Certificate of Compliance from the successful Respondent.

F. PROPERTY OF CITY. All Proposals shall become the property of the City, will not be returned, and will become a public record.

G. CONDUCT. Respondents are cautioned not to undertake any activities or actions to promote or advertise their submittals, other than discussions with City staff as described in this RFP. After the release of this RFP, Respondents are not permitted to make any direct or indirect contact with members the City Council, City staff, or media on the subject of this RFP, except in the course of

City-sponsored presentations. Violation of these rules is grounds for disqualification of the

Respondent.

H. DEBARMENT. Respondents will be qualified, and must disclose to the City, if the Respondent or any of its principals are debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any contract by any Federal department or agency.

H. CONTRACT TERMS. By submitting a Proposal, each Respondent confirms that it has reviewed and accepts the terms and conditions of Attachment A subject to explicit revisions identified in the

Respondent’s Proposal. No proposed changes shall be deemed accepted by the City unless explicitly incorporated into the agreement.

8. METHOD OF SUBMITTAL

Each Respondent must submit a complete Proposal including all information requested in this

RFP.

The City utilizes the Rocky Mountain E-purchasing System (BidNet®) in the advertisement and facilitation of solicitations; therefore, Respondents must submit proposals through the Rocky

Mountain E-purchasing System (BidNet®) website. Only rely on this web address:

www.bidnetdirect.com//city-of-commerce-city

Proposals that do not meet RFP requirements may be considered non-compliant and rejected.

It is the sole responsibility of each Respondent to ensure its Proposal is received by the City by the date and time stated in this RFP. Proposals not received by the deadline will be considered late and not accepted. Proposals shall not be submitted via facsimile or e-mail.

http://www.bidnetdirect.com/city-of-commerce-city

9. DRAFT CONTRACT

The contract between a selected Respondent(s) and the City will be substantially in the form of the draft contract contained in Attachment A. Respondents must review the draft contract and identify any proposed changes as “Proposed Changes to the Contract” in the Proposal. The City may consider any proposed changes in selecting a Respondent and awarding the contract but may reject the Proposals and condition the award of the contract on acceptance of a contract without the proposed changes.

A G R E E M E N T

THIS AGREEMENT is made between the CITY OF COMMERCE CITY, a municipal corporation of the State of Colorado (the “City”) and [NAME], a Colorado _________ company whose address is [address] (the “Contractor”), jointly (“the Parties”).

The Parties agree as follows:

1. COORDINATION AND LIAISON: The Contractor shall fully coordinate all services under the Agreement with the Director of Public Works or delegatee (the “Department

Director”).

2. SERVICES TO BE PERFORMED:

a. As the City directs, the Contractor shall diligently undertake, perform, and complete the services and produce all the deliverables set forth on Exhibit A, Scope of Services

(the “Services”) and pursuant to all Work Orders, as defined below, to the City’s satisfaction. The terms and conditions of this Agreement shall apply to the performance of all Services under this

Agreement, whether performed with or without a Work Order.

A “Work Order” is an order to establish specific Services to be performed

(including scope of Services, schedule, and total price) executed by the City and Contractor prior to Contractor commencing the Services described in the Work Order. Work Orders must be in the form of Exhibit B.

b. The Contractor is ready, willing, and able to provide the services on a non-exclusive, as-needed basis pursuant to this Agreement. This Agreement does not grant Contractor any exclusive privilege or right to supply the Services to the City.

c. The Contractor shall faithfully perform the services in accordance with the standards of care, skill, training, diligence, and judgment provided by highly competent individuals performing services of a similar nature to those described in the Agreement and in accordance with the terms of the Agreement. Contractor further warrants that all work performed under this

Agreement will be free from defects in workmanship, equipment, and materials. Upon acceptance of the work, Contractor will transfer the benefit of any applicable manufacturer’s warranty to the

City. If related to construction, all Services will be performed in accordance with the City’s

Engineering Standards and Specifications. The City’s Engineering Standards and Specifications are available on the City’s website.

d. This paragraph applies if the Services involve construction, erection, repair, maintenance, or improvement of any public works (excluding professional services).

(1) Any progress payments are payments on accounts and shall not be construed as acceptance by the City or any part of the work. All such progress payments, except for the final payment, shall be subject to correction on subsequent invoices after the discovery of any error.

Approval of an invoice shall not foreclose the right of the City to examine Contractor’s books and records to determine the correctness and accuracy of any item.

(2) At the time of delivery of the final payment to Contractor, Contractor shall execute and give to the City a final receipt for the same. The acceptance of final payment shall constitute a waiver of all claims by Contractor.

(3) The City may withhold amounts from any payment as may be necessary to cover:

(a) any liquidated damages; (b) claims for labor or materials furnished Contractor or any subcontractor or reasonable evidence indicating probable filing of such claims; (c) failure of the

Contractor to make proper payment to subcontractors or suppliers; (d) evidence of damage to another contractor, utility, or private property; (e) uncorrected defective work or guarantees that have not been met; (f) reasonable evidence that the work will not be completed within the allowed time and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or (g) any other amounts that the City is authorized to withhold. If the reason for withholding is removed, the City will make payment of the withheld sums with the next regular progress payment unless another basis for withholding exists. Execution of this Agreement by

Contractor shall constitute a waiver by Contractor to claim any right of payment of interest upon any funds retained or withheld by the City pursuant to this Agreement or C.R.S. § 38-26-107.

e. Contractor is satisfied as to the nature and location of the Services, the conformation of the ground, the character, quality, and quantity of the materials to be encountered, the character of equipment and facilities needed before beginning and for the Services, the general and local conditions, and all other matters, which can in any way affect the performance of the

Services. Contractor specifically waives any claim for additional compensation for any changed condition arising out of any one or more of the following, unless such changed condition is caused in whole or in part by acts or omissions within the City’s control: (1) a physical condition of the site of an unusual nature; (2) any condition differing materially from those ordinarily encountered and generally recognized as inherent in work or services of the character and at the location provided for in this Agreement; or (3) any force majeure.

3. TERM: The Agreement will commence on the date on the signature page of this

Agreement and will expire on _____________, 2028 (the “Term”). The term of this Agreement may be extended by the City under the same terms and conditions by a written amendment to this

Agreement. Subject to the City’s prior written authorization, the Contractor shall complete any work in progress as of the expiration date and the Term of the Agreement will extend until the work is completed or earlier terminated by the Department Director.

4. COMPENSATION AND PAYMENT:

a. Budget. The City shall pay, and the Contractor shall accept as the sole compensation for services rendered and costs incurred under the Agreement the line-item amounts set forth in the budget contained in Exhibit A. Amounts billed may not exceed the budget set forth in Exhibit A.

b. Reimbursable Expenses: There are no reimbursable expenses allowed under the Agreement. All of the Contractor’s expenses are contained in the budget in Exhibit A.

c. Invoicing: Contractor shall provide the City with invoices for all Services performed pursuant to a Work Order monthly in a format and with a level of detail acceptable to the City including all supporting documentation required by the City. By submitting an invoice, Contractor warrants that: (i) the work covered by previous invoices is free and clear of liens, claims, security interests or encumbrances, except for any interest created by retainage; and (iii) no work covered by the invoice is subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller or otherwise imposed by Contractor or any other person or entity. Contractor shall not include in its invoice any billing for defective work or for work performed by subcontractors or suppliers if it does not intend to pay the subcontractors or suppliers for such work pursuant to this Agreement.

d. Maximum Contract Amount:

(1) Notwithstanding any other provision of the Agreement, the City’s maximum payment obligation will not exceed ____________________________ DOLLARS

AND NO CENTS ($________________.00) (the “Maximum Contract Amount”). The City is not obligated to execute an Agreement or any amendments for any further services, including any services performed by Contractor beyond that specifically described in Exhibit A. Any services performed beyond those in Exhibit A are performed at Contractor’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 Commerce City’s City Council, paid into the

Treasury of the City, and encumbered for the purpose of the Agreement. The City does not by this

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.

5. STATUS OF CONTRACTOR: The Contractor is an independent contractor retained to perform professional or technical services for limited periods of time. Neither the

Contractor nor any of its employees are employees or directors of the City.

6. TERMINATION:

a. The City has the right to terminate the Agreement with cause upon written notice effective immediately, and without cause upon thirty (30) days prior written notice to the

Contractor. However, nothing gives the Contractor the right to perform services under the

Agreement beyond the time when its services become unsatisfactory to the City.

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

Agreement if the Contractor 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, kick backs, collusive bidding, bid-rigging, antitrust, fraud, undue influence, theft, racketeering, extortion or any offense of a similar nature in connection with Contractor’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, the Contractor 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 the Contractor’s possession, custody, or control by whatever method the City deems expedient. The Contractor 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. The Contractor shall mark all copies of work product that are incomplete at the time of termination “DRAFT-INCOMPLETE”.

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 the Agreement constitutes a waiver of any other breach.

8. INSURANCE:

a. General Conditions: 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. Contractor 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. 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, 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. 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: Before commending work under this Agreement, Contractor will provide certificates of insurance policies and all necessary endorsements evidencing insurance coverage required by this Agreement. The City will not be obligated under this Agreement until Contractor provides acceptable certificates of insurance and endorsements.

If the Term extends beyond the period of coverage for any required insurance, Contractor will, at least ten (10) days before the expiration of any such insurance coverage, provide the City with new certificates of insurance and endorsements evidencing either new or continuing coverage.

c. Additional Insureds: For Commercial General Liability, Business Auto

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

d. Waiver of Subrogation: For all coverages required under this

Agreement, Contractor’s insurer shall waive subrogation rights against the City.

e. Subcontractors and Subconsultants: 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 and Employer’s Liability Insurance:

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: Contractor shall maintain a

Commercial General Liability insurance policy with minimum limits of $1,000,000 for each bodily injury and property damage occurrence, $2,000,000 products and completed operations aggregate (if applicable), and $2,000,000 policy aggregate. Policy shall not contain an exclusion for sexual abuse, molestation or misconduct.

h. Business Automobile Liability: 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.

i. Contractors Pollution Liability: Contractor shall maintain 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): Contractor 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.

9. DEFENSE AND INDEMNIFICATION:

a. Contractor will be liable and responsible for any and all damages to persons or property caused by or arising out of the negligent or willful actions or omissions in the performance of the Services by Contractor, its employees, agents, or other persons acting under the Contractor’s direction or control. Contractor will indemnify and hold harmless the City, as well as its elected and appointed officials current and former officers and employees, servants, volunteers, agents, attorneys, representatives, insurance carriers, and self-insurance pools

(“Indemnified Parties”), from any and all liability claims, demands, actions, damages, losses judgments, costs or expenses, including, but not limited to, attorney fees, which may be made or brought or which may result against any of the Indemnified parties as a result of or on account of the negligent, grossly negligent, willful and wanton, or intentional actions or omissions of or failure to observe any applicable standard of care by Contractor and/or its employees, agents, or representatives or other persons acting under Contractor’s direction or control. Contractor will include the provisions of this Section in any such subcontracts engaged to perform any part of the

Services. The provisions set forth in this Section will survive the completion of the Services and the satisfaction, expiration or termination of this Agreement.

b. 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.

10. TAXES, CHARGES AND PENALTIES: The Contractor 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. Contractor and each subcontractor must obtain all required licenses and permits, including a City Contractor’s license, if required. Contractor shall pay for all license and permit fees.

11. ASSIGNMENT; SUBCONTRACTING: The Contractor shall not voluntarily or involuntarily assign any of its rights or obligations, or subcontract performance obligations, under this Agreement without obtaining the City’s prior written consent. Any assignment or subcontracting without such consent will be ineffective and void and will be cause for termination of this Agreement by the City. The City 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) the Contractor shall remain responsible to the City; and (ii) no contractual relationship shall be created between the City and any sub-contractor, subcontractor or assign.

12. 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.

13. 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 the Contractor receiving services or benefits pursuant to the Agreement is an incidental beneficiary only.

14. NO AUTHORITY TO BIND CITY TO CONTRACTS: The Contractor 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 Commerce City Revised Municipal Code.

15. 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.

16. 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. The Contractor shall not hire, or contract for services with, any employee or officer of the City that would be in violation of any City laws, rules or policies.

b. The Contractor shall not engage in any transaction, activity or conduct that would result in a conflict of interest under the Agreement. The Contractor 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 the Contractor by placing the Contractor’s own interests, or the interests of any party with whom the Contractor 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 if it determines a conflict exists, after it has given the Contractor written notice describing the conflict.

17. 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 Contractor at the address first above written, and if to the City at:

Director of Public Works

City of Commerce City

8602 Rosemary Street

Commerce City, CO 80022

With a copy of any such notice to:

City Attorney

7887 East 60th Avenue

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.

18. GOVERNING LAW; 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 and regulations of the City of Commerce City, which are expressly incorporated into the Agreement. Unless otherwise specified, any reference to statutes, laws, regulations, charter or code provisions, ordinances, or related memoranda, includes amendments or supplements to same. Venue for any legal action relating to the Agreement will be Adams County, Colorado.

19. COMPLIANCE WITH ALL LAWS: 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 and regulations of the City of Commerce City. Contractor and its employees and agents, while performing the

Services or while on City property for any reason during the Term, will adhere to the City’s policies applicable to City employees regarding drugs, alcohol, workplace violence, and harassment.

Policies will be made available to Contractor upon request.

20. LEGAL AUTHORITY: Contractor 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 Contractor represents and warrants that he has been fully authorized by Contractor to execute the Agreement on behalf of Contractor and to validly and legally bind Contractor 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 Contractor or the person signing the Agreement to enter into the

Agreement.

21. 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.

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

23. INTELLECTUAL PROPERTY RIGHTS: The City and Contractor 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 the Contractor and paid for by the City pursuant to this Agreement, in preliminary or final form and on any media whatsoever (collectively, “Materials”), shall belong to the City. The Contractor shall disclose all such items to the City and shall assign such rights over to the City upon completion of the Project. 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,” the Contractor (by this

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.

24. 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, the

Contractor’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.

25. ADVERTISING AND PUBLIC DISCLOSURE: The Contractor shall not include any reference to the Agreement or to services performed pursuant to the Agreement in any of the Contractor’s advertising or public relations materials without first obtaining the written approval of the City. 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. The

Contractor shall notify the City in advance of the date and time of any presentation. Nothing in this provision precludes the transmittal of any information to City officials.

26. CONFIDENTIAL INFORMATION:

a. City Information: Contractor acknowledges and accepts that, in performance of all work under the terms of this Agreement, Contractor 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.

Contractor agrees that all Proprietary Data, confidential information or any other data or information provided or otherwise disclosed by the City to Contractor shall be held in confidence and used only in the performance of its obligations under this Agreement.