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HomeMy WebLinkAboutresolution.council.073-93 '. -. .. I.. ~ ~~ --- RESOLUTION NO. 73 (Series of 1993) A RESOLUTION APPROVING A PROFESSIONAL SERVICES AGREEMENT BETWEEN RAINMAKER INC. AND THE CITY OF ASPEN, COLORADO, FOR THE INSTALLATION OF MAXI 5 IRRIGATION CONTROL SYSTEM AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a professional services agreement between Rainmaker Inc. and the City of Aspen, a true and accurate copy of which is attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the city of Aspen hereby approves that professional services agreement between Rainmaker, Inc. and the City of Aspen, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the city Manager of the city of Aspen to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the city '1~ day of ~A-L / - Council of the city of Aspen on the 1993. 1.4- 7, ;7~- Johl S. Bennett, Mayor I, Kathryn S. Koch, duly appointed and acting city Clerk do certify that the foregoing is a true and accurate copy of that Colorado, ata meeting held -..-.. -_.< e\ '4; '. ,.It; * "1;". Ie Ill. '\<c. -- ---. SERVICE AGREEMENT THIS AGREEMENT made this311~day of So/fetIJier , between the City of Aspen ("City") and the Contractor Identified hereinbelow. C- " ,SC:<A !, c'~'1' G:.-. ~.""- S'" ... '--r,.....,........ \ <:",/"''-;<:''.1, ~:.. .. kL",...,r'::,- ~""h..."_~ '~, 1993", by and WITNESSETH, that whereas the City wishes to purchase the services described hereinbelow and Contractor wishes to provide said services to the City as specified herein. NOW THEREFORE, in consideration of the following covenants, the parties agrt'.,e as follows: CONTRACTOR NAME: Rainmaker, Inc. 27 North Willerup Montrose. Colorado CONTACT PERSON: Dennis Vanderwist ADDRESS: 81401 PHONE NUMBERS ""'E: OOj) 249~S618 IIORK: (101) 249-RORl SOCIAL SECURITY NUMBER OR FEDERAL I~D~ NUMBER: DESCRIPTION OF SERVICE 'ccdlQllj DURATION OF AGREEMENT AND SCHEDULE OF SERVICES TO BE PROVIDED ..r'..'.;,...... "; "~':',, " },j',: ':>:c"i," '-;,'i::J"",. . .(.\;'}e:'~~i" 0'(,,&;:..." .~-" ',' :-, fA ., DESCRIPTION OF AMOU T. METHOD OR MANNER OF COMPENSATION S~~ r~Y\J/G Please invoice usinq City's Purchase Order Number: AMENDMENTS TO GENERAL CONDITIONS References to Contract Documents shall include the Service A~reement. General Conditions to Service Agreement. Specifications (Scope of York). and Contractor's Proposal or Bid with accomoanvinq Exhibits. . @e" \ ,,< . . . . The parties acknowledge and understand that this Service Agreement is, except as specifically amended hereinabove, subject to all of the terms and conditions set forth in the City of Aspen General Conditions for Service Agreements, a copy of which is appended hereto as Appendix "A" and by this reference made a part hereof. Having agreed to the above and foregoing, the parties hereto do affix their signatures. By: Contractor: By: 9~ o.../J~~~ (j Title: PIZesIO~/ Approved by the City of e By: Gollin.sI.Agr _ ~~n~,~~.~~:_,.~._: ."~<~'~~~_ " "lg{Si~~:;~~J~i1.~ ''r,-~-;,> ~:~~....-.;..:.r""'fi:K~'Oo~..~#,-y.J~~:;'*~t..;::~~,~~~~..E;;:;~&"j;$'~"""""'~~~~.r.,*,,)i:i";~':::Z;.%'*~lf~';;::-*~i::'::~~~"i~ tit ~. ~- ,e CITY OF ASPEN GENERAL CONDITIONS FOR SERVICE AGREEMENTS These General Conditions have been prepared by the City of Aspen to be incorporated by reference into Service Agreements entered into between service providers ("Contractor") and the City of Aspen ("City"). The provisions herein may be interrelated with standard provisions of the Service Agreement customarily used by the City of Aspen to contract for services. A change in one document may necessitate a change in the other. Any amendments to the following terms and conditions mutually agreed to by the Contractor and the City shall be specifically noted on the Service Agreement. 1. Completion. Contractor shall commence the provision of services as described the Service Agreement in a timely manner. Upon request of the City. Contractor shall submit, for the City's approval, a schedule for the performance of Contractor's services which shall be adjusted as required. This schedule. when approved by the City, shall not, except for reasonable cause, be altered by the Contractor. 2. Payment. In consideration of the services provided, City shall pay Contractor the amounts set forth in the Service Agreement. Contractor shall submit, in timely fashion, invoices for services performed. The City shall review such invoices and, if they are considered incorrect or untimely, the City shall review the matter with Contractor within ten days from receipt of the Contractor's billing. Contractor's invoice shall be for the period ending the last day of each month and s.ubmitted to the City no later than the 5th day of each month. 3. Non-Assignability. Both parties recognize that this contract is one for personal services and cannot be transferred, assigned, or sublet by either party without prior written consent of the other. Sub-Contracting, if authorized, shall not relieve the Contractor of any of the responsibilities or obligations under this agreement. Contractor shall be and remain solely responsible to the City for the acts. errors, omissions or neglect of any subcontractor's officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Contractor to the extent of the subcontract. The City shall not be obligated to payor be liable for payment of any sums due which may be due to any subcontractor unless agreed to in writing beforehand by the City. 4. Termination. The Contractor or the City may terminate this Agreement upon thirty (30) days notice, without specifying the reason therefor, by giving notice, in writing. addressed to the other party, specifying the effective date of the termination. The City shall have the right to terminate the Service Agreement upon three (3) days notice if Contractor fails to comply with the terms and conditions set forth in Sections 1,3,5.6.7,110, 13, 14, 16, 19 or 21. For breach of any other term and condition of the Service Agreement, City may terminate the Service Agreement with ten (10) days prior notice to cure and failure by Contractor to so cure. . ' ~ 'I. e (A . ..";,,....;.'"'.;;..~-~"";w<'~.,...-. No compensation shall be earned after the effective date of the termination. Notwithstanding the above, Contractor shall not be relieved of any liability to the City for damages sustained by the City by virtue of any breach of this Agreement by the Contractor, and the City may withhold any payments to the Contractor for the purposes of set-off until such time as the exact amount of damages due the City from the Contractor may be determined. 5. Covenant Against Contingent Fees. The Contractor warrants that s/he has not been employed or retained any company or person, other than a bona fide employee working for the Contractor, to solicit or secure this contract, that s/he has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gifts or any other consideration contingent upon or resulting from the award or making of this contract. For a breach or violation of this contract without liability, or in its discretion to deduct from the contract price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. 6. Equipment. Materials and Supplies. Unless otherwise agreed to by the City, Contractor shall acquire, provide, maintain, and repair at Contractor's expense such equipment, materials, supplies, etc., as necessary for the proper conduct of the services to be provided in accordance with the Service Agreement. 7. Contract Monitoring. Contractor agrees to allow City to reasonably monitor the services to be provided in accordance with the Service Agreement. 8. Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this agreement shall result in, or be construed as establishing an employment relationship. Contractor shall be, and shall perform as, an independent contractor who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or servant of Contractor shall be, or shall be deemed to be, the employee, agent or servant of the City. City is interested only in the results obtained underthis contract. The manner and means of conducting the work are under the sole control of Contractor. None of the benefits provided .by City to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, are available from City to the employees, agents or servants of Contractor. Contractor shall be solely and entirely responsible for its acts and for the acts of Contractor's agents, employees, servants land subcontractors during the performance of this contract. Contractor shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with rqpect to Contractor and/or Contractpr's employees engaged in the performance of the services agreed to herein. 9. Indemnification. Contractor agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this SerVice Agreement, if such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, or other fault of the Contractor, any subcontractor of the Contractor, or any officer, employee, representative, or agent of the Contractor or of any subcontractor of the Contractor, or which 2 ~.. .. t* ~. ~ ~. __;hC'~'.~"~."""~~_'~. ~~. ~,~~~~;;~L~-~~1i~:~W\:~~#;~~; arises out of any workmen's compensation claim of any employee of the Contractor or of any employee of any subcontractor of the Contractor. The Contractor agrees to investigate. handle, respond to, and to provide defense for and defend against, any such liability. claims or demands at the sole expense of the Contractor, or at the option of the City, agrees to pay the City or reimburse the City for the defense costs incurred by the City in connection with. any such liability, claims, or demands. The Contractor also agrees to bear all other costs and expenses related thereto, including court costs and attorney fees, whether or not any such liability, claims, or demands alleged are groundless, false. or fraudulent. If it is determined by the final judgment of a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the act, omission, or other fault of the City, its officers. or its employees. the City shall reimburse the Contractor for the portion of the judgment attributable to such act, omi3sion, or other fault of the City, its officers, or employees. 10. Contractor's Insurance. (a) Contractor agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability. claims, demands, and other obligations assumed by the Contractor pursuant to Section 9 above. Such insurance shall be in addition to any other insurance requirements imposed by the Service Agreement or by law. The Contractor shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 9 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. (b) Contractor shall procure and maintain Workmen's Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under the Service Agreement, and Employers' Liability insurance with minimum limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - policy limit, and FIVE HUND~ED THOUSAND DOLLARS ($500,000.00) disease - each employee. Evidence of qualified self- insured status may be sub.stituted for the Workmen's Compensation requirements of this paragraph. (c) Contractor shall procure and maintain Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall in.clude coverage for explosion, collapse, and undergraound hazards. The policy shall contain a severability of interests provision, (d) Contractor shall procure and maintain Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000.000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate with respect to each Contractor's owned, hired and non- owned vehicles assigned to or used in performance of the services. The policy shall contain a severability of interests provision. If the Contractor has no owned automobiles, the requirements of this section shall be met by each employee of the Contractor providing services to the City under this contract. ~ '. e, 11,.. ~\" ";'~ ~.. '%. -- -. ...>....,"_~"... _"~' "".._.......~.~:.ti~~~,.~.~,~"....~~11i~:::~~,';~~~~i;:t~ii;~~, (e) If the S~rvice Agreement requires any insurance in addition to that referenced above at subsections (a) through (d), or a particular type of coverage, Contractor shall procure and maintain, and shall cause any subcontractor of the Contractor to procure and maintain. the minimum insurance coverages referenced in the Service Agreement. All insurance coverages shall be procured and maintained with forms and insurance acceptable to the City. All coverages shall be continuously maintained to cover all liability, claims. demands, and other obligations assumed by the Contractor pursuant to Section 9 above. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. (f) The policy or policies required above shall be endorsed to include the City and the City's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the City, its officers or employees, or carJjed by or provided through any insurance pool of the City. shall be excess and not contributbry insurance to that provided by Contractor. No additional insured endorsement to the policies required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Contractor shall be solely responsible for any deductible losses under any policy required above. (g) The certificate of insurance provided by the City shall be completed .by the Contractor's insurance agent as evidence that policies providing the required coverages, condi- tions, and minimum limits are in full force iInd effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identify the Service Agreement and shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City. (h) Failure on the part of the Contractor to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of contract upon which City may terminate the Service Agreement as provided by Section 4 above, or at its discretion City may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith. and all monies so paid! by City shall be repaid by Contractor to City upon demand, or City may offset the cost of the premiums against monies due to Contractor from City. (i) City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. Ul The parties hereto understand and agree that City is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently $150,000.00 per person and $600,000 per occurrence) or any other rights, immunities, and protection provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seq.. C,R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. 11. City's Insurance. The parties hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the ClRSA Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Department and are available to Contractor for inspection during normal 4 .~ - tit ". '. -_, . .', '... -~._...., ~'-""~""-"~"""~ -'-'~-..'.... ",~ :- ,;..~<-:." ~'X?~~:<:"-" -:.,,' .:" ',",.:.: :;~:~:,~~~~)::;:;::t.~.: ...,-,...._,;;."'"'~:.......~~~~~oWlU~t.<.~~ business hours. City makes no representations whatsoever with respect to specific covefll.ges offered by CIRSA. City shall provide Contractor reasonable notice of any changes in its membership or participation in C1RSA. 12. Waiver of Presumption. The Service Agreement was negotiated and reviewed through the mutual efforts of the parties hereto and the parties agree that no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status of the parties in the negotiation, review or drafting of the Service Agreement. 13. Certification Regarding Debarment. Suspension. Ineligibility. and Voluntary Exclusion. Contractor certifies, by acceptance of the Service Agreement, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any transaction with a Federal or State department or agency. It further certifies that prior to submitting its Bid that it did include this cla.use without modification in all lower tier transactions, solicitations. proposals, contracts 'and subcontracts. In the event that vendor or any lower tier participant was unable to certify to this statement, an explanation was attached to the Bid and was determined by the City to! be satisfactory to the City. 14. Warranties Against Contingent Fees. Gratuities. Kickbacks and Conflicts ofInterest. Contractor warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. Contractor agrees not to give any employee or former employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommen- dation, preparation of any part of a program requirement or a purchase request, influencing'the content of any specification or procurement standard, rendering advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefor. Contractor represents that no official, officer. employee or representative of the City during the term of the Service Agreement has or one (I) year thereafter shall have any interest, direct or indirect, in the Service Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of the Service Agreement. In addition to other emedies it amy have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to : 1. 2. Cancel the Service Agreement without any liability by the City; Debar or suspend the offending parties from being a Contractor. vendor, or sub-contractor under City contracts; Deduct from the contract price or consideration, or otherwise recover,lthe value of anything transferred or received by the Contractor; and Recover such value from the offending parties. 3. 4. (It ~e..'... ~ '~ e, , '4" . \" -- ___I 15. Termination for Default or for Convenience of City. The services contemplated by the Service Agreement may be canceled by the City prior to acceptance by the City whenever for any reason and in its sole discretion the City shall determine that such cancellation is in its best interests and convenience. 16. Fund Availability. Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If the Service Agreement contemplates the City utilizing state or federal funds to meet its obligations herein, the Service Agreement shall be contingent upon the availability of those funds for payment pursuant to the terms of the Service Agreement. 17. City Council Approval. If the Service Agreement requires the City to pay an amollnt of money in excess of $25,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. 18. Notices. Any written notices as called for herein may be hand delivered or mail~d by certified mail, return receipt requested to the respective person or address listed for the Contractor in the Service Agreement. 19. Non-Discrimination: penalD'. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform services under this contract. Contractor agrees to meet all of the requirements of City's municipal code, Section 13-98. pertaining to non-discrimination in employment. 20. ~ of Aspen Procurement Code. Notwithstanding anything to the contrary contained herein or in the Contract Documents, the Service Agreement shall be subject to the City of Aspen Procurement Code, Chapter 3 of the Aspen Municipal Code. 21. Compliance With All Laws and Ree:ulations. Contractor shall give all notices and comply with all laws, regulations, and ordinances applicable to the provision of the services contemplated by the Service Agreement. Contractor shall obtain all necessary business licenses and permits, and shall pay all requisite occupation taxes levied by the City of Aspen upon persons engaged in business within the City limits. 22. Waiver. The waiver by the City of any term, covenant, or condition heTeof shall not operate as a waiver of any subsequent breach of the same or any other term, No term, covenant, or condition of the Service Agreement can be waived except by the written consent of the City, and forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant, or condition to be performed by C:ontractor to which the same may apply and, until complete performance by Contractor of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under the Service Agreement or by law despite any such forbearance or indulgence. 23. Execution of Service Agreement by City. The Service Agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding anything to the contrary contained herein, the Service Agreement shall not be binding upon the City unless duly executed by the City Manager of the City of Aspen (or a duly authorized official in his or her absence). 6 -. \;t. ~.'.. \;~~ ,ie. ~, \:!!, - 24. Warranty. (a) Contractor warrants and guarantees to City that the provlSlon of services contemplated by the Service Agreement (the "Work") will be in accordance with this Agreement and will not be Defective. All Defective Work, whether or not in place, may be rejected, corrected or accepted by City. Work shall be performed in a skillful and workmanlike manner. Except where longer periods of warranty are indicated for certain items, Contractor warrants Work to be free from faulty materials and workmanship for a period of not less than one year from date of Final Acceptance, which one year period. (b) Contractor, at no additional expense to City, shall remedy damage to equipment, the site, or the buildings or the contents thereof which is the result of any failure or defectin the Work, and restore any work damaged in fulfilling the requirements of the Agreement. (c) All representatives of City, testing agencies and governmental agencies with jurisdictional interests will have access to the Work at reasonable times for their observation, inspecting and testing. Contractor shall provide proper and safe conditions for such access. (d) Contractor shall give City timely notice of readiness of the Work for all required inspections, tests or approvals. (e) If Laws or Regulations of any public body having jurisdiction require any Work (or part thereof) to specifically be inspected, tested or approved, Contractor shall assume full responsibility therefor, pay all costs in connection therewith and furnish City the required certificates of inspection, testing or approval. Contractor shall also be responsible for and shall pay all costs in connection with any inspection or testing required in connection with City's acceptance of a Supplier of materials or equipment proposed to be incorporated in the Work, or of materials or equipment submitted for approval prior to Contractor's purchase thereof for incorporation in the Work. The cost of all inspections, tests and approvals in addition to the above which are required by the Contract Documents shall be paid by Contractor (unless otherwise specified). (f) All inspections, tests or approvals other than those required by Laws !or Regulations of any public body having jurisdiction shall be perfoTmed by organizations acceptable to City. (g) If any Work (including the work of others) that is to be inspected, tested or approved is covered without written concurrence of City, it must, if requested by City, be uIlcovered for observation. Such uncovering shall be at Contractor's expense unless Contractor has given City timely Ilotice of Contractor's intention to cover the same and City has not acted with reasonable promptness in response to such notice. (h) Neither observations by City nor inspections, tests or approvals by others shall relieve Contractor from Contractor's obligations to perform the Work in accordance with the Contract Documents. (i) If any Work is covered contrary to the written request of City it must, if requested by City, be uncovered for City's observation and replaced at Contractor's expense. - e, ;'1... 'i, I~_' -I{i . 'iC", (j) If City considers it necessary or advisable that covered Work be observed by City or inspected or tested by others, Contractor. at City's request, shall uncover. expose or otherwise make available for observation. inspection or testing as City may require, that portipn of the Work in question, furnishing aU necessary labor, material and equipments. If it is fOUnd that such Work is Defective, Contractor shall bear all direct; indirect and consequential costs of such uncovering, exposure, observation, inspection and testing and of satisfactory reconstruction, (including but not limited to fees and charges of engineers, architects, attorneys and other professionals), and City shall be entitled to an appropriate decrease in the Contract Price. (k) If the work is defective, or Contractor fails to supply sufficient skilled workers or suitable materials or equipment, or fails to furnish or perform the Work in such a way that the completed Work will conform to the Contract Documents, City may order Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of City to stop the Work shall not give rise to any duty on the part of City to exercise this right for the benefit of Contractor or any other party. (I) If required by City, Contractor shall promptly, as directed, either correct all Defective Work, whether or not fabricated, installed or completed, or, if the Work has been rejected by City, remove it from the site and replace it with non defective Work. Contractor shall bear all direct, indirect and consequential costs of such correction or removal (including but not limited to fees and charges of engineers, architects, attorneys and other professionals) made necessary thereby. (m) If within one year after the date of substantial completion or such longer period of time as may be prescribed by Laws or Regulations or by the terms of any applicable special guarantee required by the Contract Documents or by any specific provision of the Contract Documents, any Work is found to be Defective, Contractor shall promptly without cost to City and in accordance with City's written instructions, either correct such Defective Work, or, iif it has been rejected by City, remove it from the site and replace it with nondefective Work. If Contractor does not promptly comply with the terms of such instructions, or in an emergency where delay would cause serious risk of loss or damage, City may have the Defective Work corrected or the rejected Work removed and replaced, and all direct, indirect and consequential costs of such removal and replacement (including but not limited to fees and charges of engineers, architects, attorneys and other professionals) will be paid by Contractor. (n) If, instead of requiring correction or removal and replacement of Defective Work, City prefers to accept it, City may do so. Contractor shall bear all direct, indirect and consequential costs attributable to City's evaluation qf and determination to accept such Defective Work. (0) If Contractor fails within a reasonable time after written notice of City to proceed to correct and to correct Defective Work or to remove and replace rejected Work as required by City, or if Contractor fails to perform the Work in accordance with the Contract Documents, or if Contractor fails to comply with any other provision of the Contract Documents, City may, after seven days' written notice to Contractor, correct and remedy any such deficiency. In exercising the rights and remedies under this paragraph City shall proceed expeditiously to the extent necessary to complete corrective and remedial action. City may exclude Contractor from all or part of the site, take possession of all or part of the Work, and suspend Contractor's x , ,. . , "e "~'\~ '- ,.'tIt'. ~ Ill", ~a 'Q" - services related thereto, take possession of Contractor's tools, appliances, construction equipment and machinery at the site and incorporate in the Work all materials and equipment stored at the site or for which City has paid Contractor but which are stored elsewhere. Contractor shall allow City, City's representatives, agents and employees such access to the site as may Ibe necessary to enable City to exercise the rights and remedies under this paragraph. All direct. indirect and consequential costs of City in exercising such rights and remedies will be charged against Contractor. Such direct, indirect and consequential costs will include but not be limited to fees and charges of engineers, architects, attorneys and other professionals, all court costs and all costs of repair and replacement of work of others destroyed or damaged by correction. removal or replacement of Contractor's Defective Work. 25. General Terms. (a) It is agreed that neither the Service Agreement nor any of its terms, proVISIOns, conditions, representations or covenants can be modified, changed, terminated i or amended, waived, superseded or extended except by appropriate written instrument fl\lly executed by the parties. (b) If any of the provisions of the Service Agreement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision. (c) The parties acknowledge and understand that there are no conditions or limitations to this understanding except those as contained herein at the time of the execution hereof and that after execution no alteration, change or modification shall be made except upon a writing signed by the parties. (d) The Service Agreement shall be governed by the laws of the State of Colorado as from time to time in effect. 9