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Home My WebLink About2020-04-20 (Special-Regular) Meeting Agenda Packet Please note: If you have a disability and need auxiliary aids or services, please notify the City of Englewood (303-762-2405) at least 48 hours in advance of when services are needed. Englewood, CO 80110 AGENDA Teleconferenced City Council Special/Regular Meeting Monday, April 20, 2020 ♦ 6:00 PM This City Council Special / Regular meeting will be held by teleconference. To view the meeting, please follow this link to our YouTube live stream link https://www.youtube.com/watch?v=49JsjIEmvVE 1. Call to Order 2. Roll Call 3. Study Session Topics a. Communications Manager Chris Harguth will be present to discuss the Flow it Forward Public Education Campaign. Pdf b. Finance and Administrative Director Maria Sobota will be present to discuss the Review Ballot Language for Lodger's Sales Tax Increase Pdf c. Deputy City Manager Dorothy Hargrove will be present to discuss Upcoming Study Session Agenda Items Pdf 4. Consideration of Minutes of Previous Session a. Minutes of the Special/Regular City Council Meeting of April 6, 2020. Teleconferenced City Council Special/Regular Meeting 06 Apr 2020 - Minutes - Pdf b. Minutes of the City Council Emergency meeting of April 8, 2020. City Council Emergency Meeting - 08 Apr 2020 - Minutes - Pdf 5. Appointments, Communications, Proclamations, and Recognition 6. Recognition of Scheduled Public Comment The deadline to sign up to speak for Scheduled Public Comment is Wednesday by 5 p.m., prior to the meeting, through the City Clerk’s Office. This is an opportunity for the public to address City Council. There is an expectation that the presentation will be conducted in a respectful manner. Council may ask questions for clarification, but there will not be any dialogue. Please limit your presentation to five minutes. Written materials for presentation to Council may be submitted to the City Clerk. a. Kathleen Bailey, an Englewood resident, addressed Council in the attached written public comment K.Bailey Public Comment 7. Recognition of Unscheduled Public Comment Page 1 of 436 Englewood City Council Regular Agenda April 20, 2020 Please note: If you have a disability and need auxiliary aids or services, please notify the City of Englewood (303-762-2405) at least 48 hours in advance of when services are needed. If you would like to sign-up to speak for public comment at the upcoming City Council meeting for Monday, April 20, please visit https://zoom.us/webinar/register/WN_32CiShzMTfSWNeJ8R0Lz3A and register! You will receive a unique and personalized invitation by email to join the meeting. Every speaker who wants to register should sign-up with their own email address. If you do not have an email address or if you have any questions regarding this process, please reach out to the City Clerk's Office at CityClerk@englewoodco.gov or call 303-762-2430. Citizens may also submit written public comments to the City Clerk's Office at CityClerk@englewoodco.gov until 12 p.m. Tuesday, April 21. This is an opportunity for the public to address City Council. There is an expectation that the presentation will be conducted in a respectful manner. Council may ask questions for clarification, but there will not be any dialogue. Please limit your presentation to 3 minutes. Currently, we are not able to accommodate public presentations, however, they can be submitted for the packet. Council Response to Public Comment. 8. Consent Agenda Items a. Approval of Ordinances on First Reading b. Approval of Ordinances on Second Reading. i. CB 13 - Tax for On-Line Sales for 3rd Party Vendors Pdf Staff recommends City Council approve, by Ordinance, providing for specific rules associated with marketplace retailers' collection and remittance of sales tax, all within the City of Englewood. Staff: Finance and Administrative Director Maria Sobota c. Resolutions and Motions 9. Public Hearing Items 10. Ordinances, Resolutions and Motions a. Approval of Ordinances on First Reading i. CB 15 - Subgrantee Agreement with Arapahoe County for 2019 CDBG funds Pdf Staff recommends City Council approve a Bill for an Ordinance for the execution of an Intergovernmental Subgrantee Agreement for the 2019 Community Page 2 of 436 Englewood City Council Regular Agenda April 20, 2020 Please note: If you have a disability and need auxiliary aids or services, please notify the City of Englewood (303-762-2405) at least 48 hours in advance of when services are needed. Development Block Grant (CDBG) program between Arapahoe County and the City of Englewood. Staff: Community Development Director Brad Power b. Approval of Ordinances on Second Reading c. Resolutions and Motions i. Award of Contract to Dream Builders, Inc. for Construction of the Englewood Recreation Center Water Main, Fire Hydrant Assembly and ADA Ramp Installation Pdf Staff recommends City Council approve, by Motion, a contract with Dream Builders, Inc. in the amount of $121,033.00 for the Englewood Recreation Center Fire Hydrant and Drainage Improvements. Staff: Capital Projects and Engineering Manager Tim Hoos ii. Approval for the Annual Purchase of Roadway Materials Pdf Staff recommends City Council approve, by Resolution, a series of purchase orders, as needed, for the purchase of sand, aggregate, and road materials under the terms of the city of Thornton, Colorado's Front Range Multiple Assembly of Procurement Officials (MAPO) Cooperative Purchasing Agreement in an amount not to exceed $300,000. Staff: Public Works Director Maria D'Andrea iii. Award of Contract to Sabell's Civil and Landscape, LLC for construction of the Romans Park Retaining Wall. Pdf Staff recommends City Council approve, by Motion, a contract with Sabell's Civil and Landscape, LLC in the amount of $248,600.20 for the Romans Park Retaining Wall Project. Staff: Capital Projects and Engineering Manager Tim Hoos 11. COVID-19 Update 12. General Discussion a. Mayor's Choice b. Council Members' Choice 13. City Manager’s Report 14. City Attorney’s Report 15. Adjournment Page 3 of 436 STUDY SESSION TO: Mayor and Council FROM: Chris Harguth DEPARTMENT: Communications DATE: April 20, 2020 SUBJECT: Flow it Forward Public Education Campaign DESCRIPTION: Flow it Forward Public Education Campaign RECOMMENDATION: Staff invites Council feedback on a public information campaign titled Flow it Forward to launch this summer including the upcoming issue of Englewood Citizen magazine. PREVIOUS COUNCIL ACTION: City Council has had various discussions over the past year regarding the extent of infrastructure needs in water, wastewater and stormwater systems. This public education campaign would use that information to educate the public regarding those needs. SUMMARY: Led by the Communications Department, staff has been working to summarize and synthesize the information in the stormwater masterplan and more recently the water and sewer masterplan that would benefit both City Council and the public. A public education campaign is being developed, with design assistance from Philosophy Communication, regarding the needs that exist in these utilities infrastructure throughout the city. Objectives To provide transparent communication around the utility initiatives taking place in Englewood; specifically, sewer, storm water and water Target Audience(s) • Business community / Partners • Residents Goals • Educate the public about the utility initiatives with a solid rationale • Gain public support for utility initiatives • Celebrate Englewood as a smart, innovative City that invests in the prosperity and sustainability of the City • Educate the public about what the city is doing to minimize costs Page 4 of 436 Key Performance Indicators (KPIs) • Reduced resident complaints from lack of information • Engagement on social platforms, at City Council meetings, with City employees, etc. Deliverables • Research: Conduct secondary research with adjacent and national cities. • Theme: Develop education campaign theme and present to key stakeholders. • Messaging: Develop a one-page message document that outlines the campaign theme’s attributes, strengths and key points to highlight. • Messaging Distribution: Create an eblast to be sent to City Council, employees and key stakeholders highlighting the campaign. • Content: Provide new messaging content for a website landing page (programming and landing page for education campaign to be executed by City of Englewood communication team). • Education Campaign Branding: Create the visual aesthetic to communicate the education campaign theme, e.g. sample ad, info graphic, etc. ANALYSIS: When discussing a potential public education campaign earlier this year it became increasingly clear that the issues were complex and challenging to articulate for average resident. COVID-19 has further complicated the issue as the extent of negative impact to the city's budget is unknown. The virus' impact has obviously not changed the need for infrastructure upgrades; and while funding is uncertain, this campaign is meant to illustrate the problems and the urgency to act. FINANCIAL IMPLICATIONS: Funding for the campaign comes equally from the utilities enterprise funds not to exceed $15,000. ALTERNATIVES: 1. Do not educate the public on the infrastructure needs of the city 2. Delay the public information campaign to a later date CONCLUSION: Staff will continue to update Council as the campaign progresses. Page 5 of 436 Page 6 of 436 While preparing content for the Englewood magazine, it became increasingly clear that we needed to launch a public education campaign regarding needed improvements to Englewood’s infrastructure.Page 7 of 436 We’ve been working since March to create the “Flow it Forward” campaign.Page 8 of 436 We expect the “Flow it Forward” campaign to be smart, memorable, engaging and, most importantly, informative. The challenge is taking complex issues and creating messaging that any resident can digest.Page 9 of 436 Objectives To provide transparent communication around the utility initiatives and needs in Englewood; specifically related to sewer, storm water and water.Page 10 of 436 Target Audience(s) • Business community / Partners • Residents Page 11 of 436 Goals • Educate the public about the utility initiatives with a solid rationale • Gain public support for utility initiatives • Celebrate Englewood as a smart, innovative City that invests in the prosperity and sustainability of the City • Educate the public about what the city is doing to minimize costs Page 12 of 436 Key Performance Indicators (KPIs) • Reduced resident complaints about lack of communication • Engagement on social platforms, at City Council meetings, with City employees, etc. • Media outreach • Quality of coverage • Earned traffic (web site, social media)Page 13 of 436 Strategies • Messaging meeting: Develop questions for messaging session. Meeting prep and coordination. Facilitate messaging meeting. • Research: Conduct secondary research with adjacent and national cities. • Theme: Develop education campaign theme and present to key stakeholders.Page 14 of 436 Strategies • Messaging: Develop a one-page message document that outlines the campaign theme’s attributes, strengths and key points to highlight. • Messaging Distribution: Create an eblast to be sent to City Council, employees and key stakeholders highlighting the campaign. • Content: Provide new messaging content for a website landing page and video (Executed by the Communications Department).Page 15 of 436 Strategies/Deliverables • Education Campaign Branding: Create the visual aesthetic to communicate the education campaign theme, e.g. sample ad, infographic, etc. • Two-page infographic (currently in design phase) will appear in the summer Englewood Citizen magazine. Page 16 of 436 Timeline • Eight weeks to create deliverables • Campaign will be ongoing Page 17 of 436 Questions?Page 18 of 436 STUDY SESSION TO: Mayor and Council FROM: Heather Driscoll DEPARTMENT: Finance & Administrative Services DATE: April 20, 2020 SUBJECT: Review Ballot Language for Lodger's Sales Tax Increase DESCRIPTION: Review Ballot Language for Lodger's Sales Tax Increase RECOMMENDATION: Staff requests City Council consider and provide consensus for draft ballot language to increase the sales tax assessed for short term lodging within the City; Staff also seeks the direction of the City Council to bring forth an ordinance to increase the lodger's tax for approval at a future Regular Meeting. PREVIOUS COUNCIL ACTION: At the March 2, 2020 Study Session, the Finance Director provided City Council with data, asking them to consider a 3.0% increase to the current 2% Lodging Tax; the increase would result in an 8.5% total City Lodging Tax. SUMMARY: If the City Council increases the current Lodging Tax Rate, the City could receive additional revenues. Lodging tax rates have been found to have negligible impact on hotel and STR visitor decision making. ANALYSIS: City Council asked Staff to provide the following information: Surrounding Municipalities' Rates (Relating Specifically to Lodging and Accommodations): City Sales Tax Rate Lodging/Accommodations Rate Total Combined Rate Aurora * 0.0% 8.0% 8.0% Centennial 2.5% 0.0% 2.5% Denver ** 0.0% 11.75% 11.75% Golden 3.0% 0.0% 3.0% Highlands Ranch 0.0% 0.0% 0.0% Lakewood 3.0% 3.0% 6.0% Page 19 of 436 Littleton 3.0% 0.0% 3.0% Longmont 3.53% 2.0% 5.53% Louisville 3.65% 3.0% 6.65% Northglenn 5.0% 0.0% 5.0% Thornton 0.0% 7.0% 7.0% Westminster 0.0% 7.0% 7.0% * $2.00 fee per room, per night on hotels with 75+ rooms ** Short Term Rentals are 10.75%, hotels with 50+ rooms are 11.75% What was the process other municipalities went through to establish new/increased rates? All municipalities had to seek voter approval to increase or establish Lodging Taxes pursuant to the Taxpayers Bill of Rights (TABOR). TABOR was approved by the voters in 1992 and serves to restrict the ability of government at any level to raise taxes or incur debt without taxpayer vote. What are the deadlines established for the November 3,2020 General Election? July 6, 2020 First reading of council bills calling for ballot questions/issues [regular meeting schedule; no time left for amendments] July 20, 2020 Final reading of ordinances calling for ballot questions/issues [regular meeting schedule (no time left to allow for amendments.) What guidance does staff need in order to draft an ordinance for Council (see attached)? 1. Confirm previous Council direction to increase the tax by 3% starting in 2021 (the tax could be increased incrementally each year up to a certain rate if Council so chooses). 2. Decide whether additional revenues should go into the General Fund for any lawful governmental purpose or be earmarked for a specific purpose. FINANCIAL IMPLICATIONS: The table below shows the impact of a 3% Lodging Tax increase based on historical data. Staff cannot make an assumption for short term rental revenues for the City of Englewood; there is no historical information available. Year Lodger’s Gross Sales- Actual Lodger’s Total Remitted- 2%- Actual Lodger’s Total- If 5% Rate Lodger’s Net increase from 2% to 5% 2017 $943,841.41 $18,876.83 $47,192.07 $28,315.24 2018 $1,130,518.34 $22,610.34 $56,525.92 $33,915.55 Page 20 of 436 2019 $1,290,589.91 $25,811.78 $64,529.50 $38,717.70 ALTERNATIVES: 1.) Propose no changes to the Lodging Tax. 2.) Propose a different rate than the rate discussed by Council March 2. CONCLUSION: Staff requests Council approve the language for a ballot question asking voters to approve an increase in the Lodging Tax from 2% to 5% for the November 2020 election. ATTACHMENTS: Attachment 1 - Draft Ordinance for Discussion Only Page 21 of 436 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. ______ SERIES OF 20____ INTRODUCED BY COUNCIL MEMBER __________ AN ORDINANCE SUBMITTING TO A VOTE OF THE REGISTERED ELECTORS OF THE CITY OF ENGLEWOOD AT THE NEXT MUNICIPAL ELECTION NOVEMBER 3, 2020 A BALLOT QUESTION AUTHORIZING THE CITY OF ENGLEWOOD SALES TAXES BE INCREASED BY $__________ ANNUALLY IN THE FIRST FULL FISCAL YEAR AND BY SUCH AMOUNTS AS ARE RAISED ANNUALLY THEREAFTER BY IMPOSING AN ADDITIONAL SALES TAX OF 3% ON THE SALE OF__________________________, WITH THE TAX REVENUES BEING USED TO FUND ANY LAWFUL GOVERNMENTAL PURPOSE DETERMINED BY THE CITY COUNCIL, WITH THE RATE OF THE TAX BEING ALLOWED TO BE INCREASED OR DECREASED BY ACTION OF THE CITY COUNCIL WITHOUT FURTHER VOTER APPROVAL SO LONG AS THE RATE OF TAXATION DOES NOT EXCEED ______% AND WITH THE RESULTING TAX REVENUE BEING ALLOWED TO BE COLLECTED AND SPENT NOTWITHSTANDING ANY LIMITATIONS PROVIDED BY LAW. WHEREAS, this bill for an ordinance would submit to the registered voters of the ity of Englewood a ballot question issue regarding increasing City taxes by imposing an additional Sales Tax on the sale of _____________, with the tax revenues used to fund any lawful governmental purpose determined by the City Council, with the rate of the tax being allowed to be increased or decreased without further voter approval so long as the rate of taxation does not exceed _____%, and with the resulting tax revenue being allowed to be collected and spent notwithstanding any limitations provided by law; and WHEREAS, Article X, Section 20 of the Colorado Constitution, commonly known as TABOR, requires that the City have voter approval prior to issuance of any multiple-fiscal year direct or indirect debt or other financial obligation whatsoever. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section 1. There is hereby submitted to the registered electors of the City of Englewood at the next scheduled municipal election November ___, 20____, the following ballot question authorizing the City of Englewood Sales Taxes be increased by imposing an additional Sales Tax of _____% on the sale of ____________________, with the tax revenues being used to fund any lawful governmental purpose determined by the City Council to read as follows: Commented [AMB1]: This percentage amount is based on the amount of revenue anticipated to be generated. Commented [AMB2]: The City Council can establish a specific purpose (such as infrastructure improvements, or economic development) or retain the funds for a general purpose. Commented [AMB3]: This method was used to implement the sales tax upon retail mj. It created a level of flexibility for the community to determine what factors might impact the level of tax. More often sales tax is set at an established rate and not changed. Page 22 of 436 STUDY SESSION TO: Mayor and Council FROM: Dorothy Hargrove DEPARTMENT: City Manager's Office DATE: April 20, 2020 SUBJECT: Discussion of Upcoming Study Session Agenda Items DESCRIPTION: Discussion of Upcoming Study Session Agenda Items RECOMMENDATION: Council has an opportunity to discuss and prioritize study session agenda items. PREVIOUS COUNCIL ACTION: Councilmembers have suggested that topics for future study sessions be included in a "parking lot" for consideration.for possible inclusion in the official Council agenda. During the weekly Mayor/Manager meeting these items have been added to the ongoing list of agenda topics. The Mayor and Mayor Pro Tem agreed during the April 14, 2020 Mayor/Manager meeting to seek Council input into prioritizing the listed study session agenda items. SUMMARY: Topics listed for consideration, in no priority order, include: • Body Cams for Police • Status of Homelessness Study • Pesticide/Insecticide Use • Traffic Code Update • Discussion of DRCOG regarding initiatives to support aging • EEF audit • Youth Vaping and Tobacco / Nicotine Use in the Community • Update on Municipal Court • Police Oversight Board • Review of Charter amendment process • Excel Presentation on Power Line Replacement • Discussion of process to facilitate public comment at Council meetings ANALYSIS: The following list provides a brief explanation and information to assist Council in understanding the purpose and scope of each agenda item: 1) Body Cams for Police - This discussion will include information from the Police Department, Information Technology and the City Attorney's office about possible addition Page 23 of 436 of body cameras for use by police. This topic is tentatively scheduled for the study session of May 18, 2020. 2) Tri-Cities Homelessness Study update -- The study authorized by Council through the Tri-Cities Homelessness group has been put on hold because of the COVID situation. Mayor Olson will present an update on progress to date and lead a brief discussion on the continuing efforts to address issues of homelessness in the community. 3) Pesticide Use -- The Parks division and Broken Tee golf course have been reducing the use of pesticides over the years. The goal is to use fewer pesticides while continuing to reduce the number of pests prevalent in our parks and at Broken Tee Golf Course. While some pesticide usage is necessary the overall goal is to continue to reduce pesticides as a department. 4) Traffic Code Update -- The City is currently utilizing the 1973 version of the Model Traffic Code, as amended by 1995 updates. Adopting the 2020 update will be the first comprehensive update to the traffic code in 25 years. Updates are currently under review by the City Attorney's office. 5) DRCOG / Aging in our Community -- This study session agenda item would include a presentation of current and proposed programs sponsored by DRCOG to address issues of aging, presented by, if possible, a speaker directly from DRCOG. 6) EEF audit -- During 2019, Eide Bailly audited EEF financial statements and transactions. The initial report and a supplement document are located on the city's website at: https://www.englewoodco.gov/inside-city-hall/city-departments/financial-services; Staff welcomes further discussion regarding this topic as requested by City Council. 7) Youth Vaping and Tobacco Use -- Invite a speaker from Tri-County Health Department to give information and lead a discussion about how best to address youth vaping and tobacco use in the community. 8) Update from Municipal Court -- Last fall, Council indicated that it preferred that any salary discussion with Judge Jefferson be done as part of the budgeting process and be separated from a presentation by Judge Jefferson on initiatives and accomplishments of the municipal court. .Judge Jefferson can be available to participate in these discussions at whatever point in time Council deems appropriate. 9) Police Oversight Board -- Councilmember Wink had asked for a report on development of a Police Oversight Board. There are a variety of models for police oversight authorities. Examples include: • Citizen volunteers may serve on a community board to provide police department general advice on direction/policy • Independent Monitor or Monitoring Authority empowered with authority to investigate and review police decisions after the fact. The Police Department and the City Attorney's office will present information on options for further discussion. Page 24 of 436 10) Review of Charter amendment process -- Councilmember Cuesta has asked for a report on the process to: 1. generally, amend the charter, 2. appoint a charter commission, and 3. specifically, what would be the process for amending the Charter to review the role of the City’s mayor, within the Council-Manager form of government. 11) Xcel presentation on power line replacement -- Xcel Energy has requested an opportunity to provide Council an update on Xcel projects in the community, including power line replacement initiatives. 12) Discussion of Public Comment during Council meetings: Council has consistently stated that public comments at Council meetings are both welcome and consistent with citizen rights. The virtual meetings necessary under the current COVID situation have only highlighted the importance of clarifying an easy, transparent process agreed upon by Council to facilitate public comment during the meeting process. A study session to discuss Council consensus on how best to include public comments in regular meetings will help provide guidance for the public, staff and Council. FINANCIAL IMPLICATIONS: N/A ALTERNATIVES: Council may amend, delete or add to the current list of topics in order set future study session agendas. CONCLUSION: Council may prioritize agenda topics and clarify the process for adding agenda topics for future consideration. Page 25 of 436 MINUTES Special/Regular Meeting Monday, April 6, 2020 6:00 PM 1 Call to Order The Special/Regular meeting of the Englewood City Council was called to order by Mayor Olson at 6:02 p.m. and held by teleconference. 2 Roll Call COUNCIL PRESENT: Mayor Linda Olson Mayor Pro Tem Othoniel Sierra Council Member Joe Anderson Council Member Dave Cuesta Council Member Rita Russell Council Member Cheryl Wink Council Member John Stone COUNCIL ABSENT: None STAFF PRESENT: City Manager Lewis City Attorney McKenney Brown Deputy City Manager Hargrove City Clerk Carlile Deputy City Clerk McKinnon Director Sobota, Finance and Administration Chief Building Official Montanez, Community Development Revenue and Tax Audit Supervisor Driscoll, Finance and Administration Deputy Director King, Information Technolog 3 Consideration of Minutes of Previous Session a) Minutes of the Special/Regular City Council Meeting of March 23, 2020. Moved by Council Member Othoniel Sierra Seconded by Council Member John Stone APPROVAL OF THE MINUTES OF THE SPECIAL/REGULAR CITY COUNCIL MEETING OF MARCH 23, 2020. For Against Abstained Page 1 of 6 Draft Page 26 of 436 City Council Regular April 6, 2020 Linda Olson x Othoniel Sierra (Moved By) x Joe Anderson x Dave Cuesta x Rita Russell x Cheryl Wink x John Stone (Seconded By) x 7 0 0 Motion CARRIED. 4 Study Session Topics a) Finance and Administrative Director Maria Sobota presented the 2021 Budget Revenue and Expense Forecast including a 5-year projection. 5 Appointments, Communications, Proclamations, and Recognition There were no Appointments, Communications, Proclamations or Recognition. 6 Recognition of Public Comment a) Kathleen Bailey, an Englewood resident, submitted written comments regarding Community Development. b) Vicki Hoffmann submitted written comments regarding employees salaries. c) Pamela Beets, an Englewood resident, submitted written comments regarding residential bulk plane, set back and lot coverage. Council Member Russell Responded to Public Comment. 7 Consent Agenda Items a) Approval of Ordinances on First Reading There were no additional Ordinances on First Reading (See Agenda Items 9(a)(i) and 10(a).) b) Approval of Ordinances on Second Reading. There were no additional Ordinances on Second Reading (See Agenda Item 9(b)(i).) c) Resolutions and Motions There were no additional Resolutions or Motions (See Agenda Items 9(c)(i-ii).) Page 2 of 6 Draft Page 27 of 436 City Council Regular April 6, 2020 8 Public Hearing Items No public hearing was scheduled before Council. 9 Ordinances, Resolutions and Motions a) Approval of Ordinances on First Reading i) CB 13 - Tax for On-Line Sales for 3rd Party Vendors Moved by Council Member Joe Anderson Seconded by Council Member Cheryl Wink COUNCIL BILL NO. 13, INTRODUCED BY COUNCIL MEMBER ANDERSON A BILL FOR AN ORDINANCE AMENDING TITLE 4, CHAPTER 4, SECTIONS 2 REGARDING DEFINITIONS APPLICABLE TO SALES AND USE TAX AND ADDING TITLE 4, CHAPTER 4, SECTION 4-9 REGARDING PAYMENT OF SALES TAX OWED BY MARKETPLACE FACILITATORS, ALL WITHIN THE CITY OF ENGLEWOOD, COLORADO. For Against Abstained Linda Olson x Othoniel Sierra x Joe Anderson (Moved By) x Dave Cuesta x Rita Russell x Cheryl Wink (Seconded By) x John Stone x 7 0 0 Motion CARRIED. b) Approval of Ordinances on Second Reading i) CB 11 - 2nd IGA amendment between Arapahoe County 911 Authority and COE Moved by Council Member Joe Anderson Seconded by Council Member Cheryl Wink ORDINANCE NO. 13, SERIES OF 2020 (COUNCIL BILL NO. 11, INTRODUCED BY COUNCIL MEMBER SIERRA) Page 3 of 6 Draft Page 28 of 436 City Council Regular April 6, 2020 AN ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT ENTITLED ”SECOND AMENDED INTERGOVERNMENTAL AGREEMENT FOR THE ESTABLISHMENT OF AN EMERGENCY COMMUNICATIONS SERVICE AUTHORITY” BETWEEN BENNETT FIRE PROTECTION DISTRICT, TOWN OF BOW MAR, BYERS FIRE PROTECTION DISTRICT, SOUTH METRO FIRE RESCUE, CITY OF CENTENNIAL, CITY OF CHERRY HILLS VILLAGE, TOWN OF COLUMBINE VALLEY, CUNNINGHAM FIRE PROTECTION DISTRICT, TOWN OF DEER TRAIL, DEER TRAIL FIRE PROTECTION DISTRICT, TOWN OF FOXFIELD, CITY OF GLENDALE, CITY OF GREENWOOD VILLAGE, CITY OF LITTLETON, SABLE-ALTURA FIRE PROTECTION DISTRICT, CITY OF SHERIDAN, STRASBURG FIRE PROTECTION DISTRICT AND THE CITY OF ENGLEWOOD, COLORADO PERTAINING TO THE ARAPAHOE COUNTY E-911 EMERGENCY TELEPHONE SERVICE AUTHORITY. For Against Abstained Linda Olson x Othoniel Sierra x Joe Anderson (Moved By) x Dave Cuesta x Rita Russell x Cheryl Wink (Seconded By) x John Stone x 6 1 0 Motion CARRIED. c) Resolutions and Motions i) Resolution to approve the Museum of Outdoor Arts Contract Renewal Moved by Council Member Cheryl Wink Seconded by Council Member Othoniel Sierra RESOLUTION NO. 14, SERIES OF 2020 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO APPROVING A PREMISES LEASE AGREEMENT WITH MUSEUM OF OUTDOOR ARTS (MOA). For Against Abstained Linda Olson x Othoniel Sierra (Seconded By) x Joe Anderson x Dave Cuesta x Rita Russell x Page 4 of 6 Draft Page 29 of 436 City Council Regular April 6, 2020 Cheryl Wink (Moved By) x John Stone x 5 2 0 Motion CARRIED. ii) Professional Services Agreement with AEC-West Moved by Council Member Joe Anderson Seconded by Council Member Othoniel Sierra Approval of Amendment No.1 for the Professional Services Agreement with AEC-West Code Consultants in an amount not to exceed $130,000. For Against Abstained Linda Olson x Othoniel Sierra (Seconded By) x Joe Anderson (Moved By) x Dave Cuesta x Rita Russell x Cheryl Wink x John Stone x 6 1 0 Motion CARRIED. The meeting recessed at 7:44 p.m. for a break. The meeting reconvened at 7:55 p.m. with all Council Members present. 10 COVID-19 Update a) Emergency Ordinance - IGA with Arapahoe County regarding Rental Assistance Program. Moved by Council Member John Stone Seconded by Council Member Joe Anderson COUNCIL BILL NO. 14, INTRODUCED BY COUNCIL MEMBER STONE A BILL FOR AN EMERGENCY ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF ENGLEWOOD AND ARAPAHOE COUNTY FOR THE PROVISION OF EMERGENCY RENTAL ASSISTANCE. For Against Abstained Linda Olson x Page 5 of 6 Draft Page 30 of 436 City Council Regular April 6, 2020 Othoniel Sierra x Joe Anderson (Seconded By) x Dave Cuesta x Rita Russell x Cheryl Wink x John Stone (Moved By) x 7 0 0 Motion CARRIED. 11 General Discussion a) Mayor's Choice i) City Council came to a consensus to postpone the Citizen of the Year Award and keep applications open until July 1, 2020. b) Council Members' Choice 12 City Manager’s Report 13 City Attorney’s Report 14 Adjournment Roll call was taken to adjourn the meeting - Seven Ayes. The meeting adjourned at 9:00 p.m. City Clerk Page 6 of 6 Draft Page 31 of 436 MINUTES City Council Regular Meeting Wednesday, April 8, 2020 Teleconferenced 6:00 PM 1 Call to Order The Emergency meeting of the Englewood City Council was called to order by Mayor Olson at 6:00 p.m. and held by teleconference. 2 Roll Call COUNCIL PRESENT: Mayor Linda Olson Mayor Pro Tem Othoniel Sierra Council Member Joe Anderson Council Member Dave Cuesta Council Member Rita Russell Council Member John Stone COUNCIL ABSENT: Council Member Cheryl Wink STAFF PRESENT: City Manager Lewis City Attorney McKenney Brown Deputy City Manager Hargrove City Clerk Carlile Deputy Director King, Information Technology 3 Approval of Ordinances on Second Reading a) Emergency Ordinance - IGA with Arapahoe County regarding Rental Assistance Program Moved by Council Member John Stone Seconded by Council Member Othoniel Sierra ORDINANCE NO. 14, SERIES 2020 (COUNCIL BILL NO. 14 INTRODUCED BY COUNCIL MEMBER STONE) AN EMERGENCY ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF ENGLEWOOD AND ARAPAHOE COUNTY FOR THE PROVISION OF EMERGENCY RENTAL ASSISTANCE. For Against Abstained Page 1 of 2 Draft Page 32 of 436 City Council Regular April 8, 2020 Joe Anderson x Dave Cuesta x Linda Olson x Othoniel Sierra (Seconded By) x Rita Russell x John Stone (Moved By) x 6 0 0 Motion CARRIED. 4 Adjournment MAYOR OLSON MOVED TO ADJOURN - 6 ayes. The meeting adjourned at 6:02 p.m. City Clerk Page 2 of 2 Draft Page 33 of 436 From:Kathleen B To:City Clerk Subject:My PUBLIC STATEMENT submitted for the 4/20/20 Public city council Meeting Date:Wednesday, April 15, 2020 11:38:54 AM 4/20/20 Public city council Meeting PUBLIC STATEMENT The first and last honest statement from a Community Development Staff Member regarding RESIDENTIAL Development was Dan Paremba’s 10/22/18 response to a Council Member expressing to him that “longtime residents are concerned!” He responded, “They have a right to be concerned. Owners will benefit from increasing values of their properties, and in some cases opportunities to stay in place. It may be a different type of residential unit, but still stay in the neighborhood.” Tonight I want to again RAISE THE ALARM TO ALL ENGLEWOOD Citizens living in the TARGETED RESIDENTIAL RESIDENTIAL TRANSITION AREAS IDENTIFIED IN BRIGHT YELLOW ON THE “City of Englewood Comprehensive Plan Land Use Intensity Map” in Districts R1C, R2A, R2B, including other Residential District Residents living within the areas of the DOWNTOWN DEVELOPMENT and planned DDA, and the Medical Districts, and R1C, R2A and R2B from Yale to Chenango Avenue. 2,828 Residences are Targeted: In R1C 1,232 residences targeted; in R2A 588 residences targeted; In R2B 1008 residences targeted. And Per the Englewood Historic Preservation Commission as of 11/20/19 - 80 demolition permits (all types) issued in 2016 90 demolition permits (all types) issued in 2017 71 demolition permits (all types) issued in 2018 44 demolition permits (all types) issued through October 31, 2019. The City Council and the City Staff have CLARIFIED AND ESTABLISHED where they stand in their intention to CONTINUE the targeted build-over and displacement of Residents and RESIDENTIAL NEIGHBORHOODS that they intentionally set in motion with their Targeted Strategic 2014/2015 Title 16 Amendments in support of their 2014/2016 Englewood Forward Comprehensive Plan. BASED ON ENGLEWOOD’s OWN RECORDS, THESE WERE MAJOR AMENDMENTS - AND STAFF CHOSE NOT TO REACH OUT TO INFORM THOSE DISTRICTS AND NEIGHBORHOODS WHO WERE TO BE IMPACTED. SO Don’t be FOOLED by ANY PRETENSE BY STAFF OF CARING OR CONCERN for your “thoughts” during Community Development’s upcoming 2020 Citizen “Outreach” for the upcoming 2021 Comprehensive Title 16 Review. Community Development and City Leaders WERE NOT HONEST with you in 2014, 2015, or 2016, and they WILL NOT BE HONEST WITH YOU NOW OR IN THE Page 34 of 436 FUTURE. And They have absolutely no intention of stopping what they intentionally set in motion in 2014/2015. I HOPE everyone living in the targeted Residential Transition Areas, from Yale to Chenango - will continue talking with your fellow targeted neighbors in each of these fellow targeted districts. IT WILL ONLY BE A COALITION OF R1C, R2A, R2B, MUR3A, MUR3B CITIZENS WHO CAN TAKE OUR CITY BACK. And for all of you who live in what had been a protected Single Family Zoned District - the R1C District, the LARGEST % of our Residential districts - you are no longer protected from these grotesque gargantuan Multi-Unit Developments replacing SINGLE FAMILY HOMES under the combined 2014/2015 “Bulk Plane“ and “Rezonings and PUD” Amendments. And, as evidenced by the results of Ellen’s DeNovo Appeal before this “COUNCIL“, now throughout R1C, as has already been inflicted on the R2A, R2B, MUR3A, MUR3B Residents, the previous protection of your rights to light, to privacy, and neighborhood character is OUT THE WINDOW. UNFORTUNATELY IT IS CLEAR OUR ENGLEWOOD “CITY COUNCILS” WILL “CONTINUE“ TO SERVE STAFF (THE CITY MANAGER AND DIRECTORS) - NOT THE CITIZENS. Just as (“despite” what City Attorney declares is in “Charter“ - As if Community Development adheres to Charter? Codes?), P&Z will also continue to serve Community Development and not Citizens. You would have to have your head DEEP in the sand to “pretend” that Community Development is not 100% intangled with P&Z. BOTH Bodies rely solely on direction from Staff - the City Manager with each Council Member “individually“ twice a month, and the CONSTANT engaged marketing of P&Z by the Community Development Staff. WITH THE ABSENCE OF ANY COUNCIL “OVERSIGHT“, our Englewood City STAFF have diminished in standard of INTEGRITY. Not only do STAFF ignore, neglect, Place at Risk, devalue CITIZENS, but STAFF devalue, neglect, ignore Federal and State Health & Safety Laws and Regulations, and their own Charter and Codes when convenient or cost effective - always at the risk and detriment to others. And always with the compliant BLESSING of Council. A number of years ago, after the shocking revelation that STAFF for over half a decade had illegally stockpiled high radionuclides concentration byproduct sludge onsite at the AWTP - ignoring ALL CDPHE Health and Safety Laws and Regs and without any question or concern from Council, I asked Council why they didn’t do their own self education on such a Major issue? Member Olson responded with indignation and confidence, “It is not our job, WE TRUST STAFF TO DO THAT.” (a similar mantra at P&Z) Page 35 of 436 This “Ignore Citizens“ and “Serve Staff“ Standard of practice has FACILITATED: • STAFFS‘ decades of risking life and property intentionally ignoring inadequate deteriorated Storm Water Infrastructure despite repeated floods and major Studies identifying major issues. Distraught Citizens experiencing the resulting devastation sought help from Council after the 2015 Flood, and after the deadly 2018 flood - and Council responding with belittling indifference every time. And in 2018 concentrated on committing $7 Million, that could have been loaned to the Storm Water, to the BIOGAS Project (Littleton had indicated they would cover Englewood’s half). It was CITIZENS not Council who have fought tooth and nail to get this City to ACT on the Storm Water Infrastructure. A young woman drowned in 2018 and Council pats themselves on the back on 4/14/20 and gives kudos to Staff for “cleaning out sediment” in 2020 on a system that was identified as not sufficiently sized in 1998! Way to go! And no rush on any real infrastructure since Citizens Basements will continue to be used as Detention Ponds, so the single home receiving any left over flow at the west end of Layton will be protected from the same fate. • STAFF illegally disposed hazardous material at the Lowery Landfill Superfund Site and was sued by the State in 2010. COUNCIL? • STAFF ILLEGALLY stockpiled high concentration radionuclides byproduct sludge onsite at the AWTP while ignoring ALL related CDPHE HEALTH AND SAFETY LAWS AND REGULATIONS until a CITIZEN Reported it to the CDPHE and the State issued Englewood a COMPLIANCE ADVISORY in 2016. While Council Members sat on the Water/Sewer Board the entire half decade of this illegal activity at the AWTP. And Council responding to Citizens and Employees with belittling indifference in PERFECT reflection of STAFF. And when STAFF provided 3 different lies to three different entities in their explaining/excusing/defending their illegal stockpiling, Council didn’t bat an eye. • STAFF CHOOSING NOT to REACH OUT TO INFORM CITIZENS OF THE MAJOR IMPACTFUL 2014/2015 AMENDMENTS STAFF WERE MAKING TO ENGLEWOOD’s LONG STANDING Title 16 UDC. Council & P&Z approved all of it. Distraught Citizens experiencing the resulting unexpected devastation sought help from Council in 2016, 2017, 2018, 2019, 2020 - and received Council‘s ongoing response of belittling indifference, in PERFECT reflection of STAFF. So believe me I understand that for Citizens to continue to stand before a Council who responds with belittling indifference - makes no sense. But it would STILL be powerful to at least get ALL of your CITIZEN voices recorded as “Public Statements” on the Public Record. HOWEVER - Replacing the City Manager Position with an elected Mayor IS THE ONLY RECOURSE to finally have the power of the voting booth in order to be heard. AND R1C, R2A, R2B, MUR3A, MUR3B Residents would be a POWERFUL VOTING BLOCK. The City would be Governed by the ELECTED MAYOR - NOT by the City Council. AND FOR CLARITY - I CERTAINLY DO NOT MEAN what was brought up by the CITY ATTORNEY during a recent Mayor/Manager Meeting referencing Member Cuesta’s reach out his first few months in office, for a potential “City Sanctioned” idea to have a separate Public election (popularity contest) for the “TITLE” of Mayor. The “current Council process“ of selecting a Mayor is petty backstabbing by Council Page 36 of 436 Members (including a coup attempt) to vie for fellow members votes or to block other members votes in order to secure the COVETED “TITLE” of MAYOR - which is the CHAIR of Council!?!?! IF THAT is not bad enough, NOW imagine this latest floated “STAFF sanctioned” idea of ALL Council Members NOW spending years PUBLICLY campaigning for the “TITLE” of Mayor - in addition to their Public campaigns for their Council Seats!?!? And they would still be “a one vote member of a 7 Member Council“ in the SAME City Council/City Manager form of Government we CURRENTLY have! ALL OF WHICH IS A PERFECT ACCURATE display of the “caliber” of the “self serving“ PRIORITIES of our Council Members! And a perfect delight for Staff in our EXISTING City Council/City Manager government. IT WILL ONLY BE A COALITION OF R1C, R2A, R2B, MUR3A, MUR3B CITIZENS WHO CAN TAKE OUR CITY BACK. Kathleen Bailey 30 year District 4 Resident Page 37 of 436 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Heather Driscoll DEPARTMENT: Finance & Administrative Services DATE: April 20, 2020 SUBJECT: CB #13 - Tax for On-Line Sales for 3rd Party Vendors DESCRIPTION: CB #13 - Tax for On-Line Sales for 3rd Party Vendors RECOMMENDATION: Staff is asking City Council to review and approve, by Ordinance, Council Bill 13, providing for specific rules associated with marketplace retailers' collection and remittance of sales tax, all within the City of Englewood. PREVIOUS COUNCIL ACTION: On March 4, 2019, the City Council approved Ordinance 11-19 updating Section 4-4-2 of the Englewood Municipal Code, providing for definitions in association with the assessment and collection of the City's sales tax. On or before the 1985 adoption of the Englewood Municipal Code, the City of Englewood provided for the assessment and collection of sales tax upon all retail sales and purchases of tangible personal property within the boundaries of the City, including delivery within the City. (EMC 4-4-4-1) SUMMARY: The State of Colorado and the City of Englewood separately impose sales tax on retail sales of tangible personal property, commodities, and certain services. A retailer making sales in Colorado and within Englewood is typically required to collect applicable state and local sales taxes. On June 21, 2018, the United States Supreme Court resolved the legal question regarding whether businesses without a physical presence in a State can be required to collect and remit sales taxes on transactions within the jurisdiction. It determined that out of jurisdiction on-line sellers can be held to the same standards as retailers located within a State. The Colorado General Assembly enacted legislation effective October 1, 2019, explicitly directing sales tax collection responsibilities to marketplace facilitators for sales within their marketplaces. A marketplace facilitator is an individual or legal entity that allows a marketplace seller to offer for sale tangible goods commodities, or services through a marketplace. A marketplace seller is an individual or legal entity who has an agreement with a marketplace facilitator and offers for sale tangible personal property, commodities, or services in or through the marketplace facilitator’s marketplace, and a multi-channel seller offers tangible personal Page 38 of 436 property, commodities, or services for sale through both marketplaces and other means—such as their own store, or on their own website. These collection responsibilities apply to any sales made in or through a marketplace facilitator’s marketplace as defined by the legislation. There is an exception for small marketplace facilitators who do less than $100,000 of business annually. All businesses and retailers, both brick and mortar and on-line, that are in compliance with the City’s sales and use tax provisions, seek fair and balanced participation by all businesses that sell products within the City of Englewood without advantage to marketplace or multi-channel sellers/retailers. ANALYSIS: Through this proposed action the City of Englewood seeks to maintain procedural conformity with the State of Colorado’s established sales tax definitions and requirements regarding on-line marketplace and multi-channel sellers/retailers, as set forth within C.R.S. 39-26-102, while clarifying the expectations set forth with Englewood Municipal Code § 4-4-4 which imposes a sales tax upon all retail sales and purchases of tangible personal property within the boundaries of the City, “including delivery within the boundaries of the City”. FINANCIAL IMPLICATIONS: Through research conducted by the Finance Department and City Attorney's Office, Staff anticipates a minimum increase in monthly sales tax revenue of $10,000. Staff is working towards implementing this requirement with multiple vendors and expects to have processes in place to collect tax beginning in July 2020. There will be a ramp up period and tax collected may not reach the minimum amount until later in 2020. ALTERNATIVES: Staff highly recommends City Council approve the Ordinance. CONCLUSION: Staff is asking City Council to review and approve, by Ordinance, Council Bill 13, providing for specific rules associated with marketplace retailers' collection and remittance of sales tax, all within the City of Englewood. Approving the Ordinance will enable the City to maintain procedural conformity with the State of Colorado’s established sales tax definitions and requirements. ATTACHMENTS: Council Bill #13 Page 39 of 436 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. 13 SERIES OF 2020 INTRODUCED BY COUNCIL MEMBER ANDERSON AN ORDINANCE AMENDING TITLE 4, CHAPTER 4, SECTIONS 2 REGARDING DEFINITIONS APPLICABLE TO SALES AND USE TAX AND ADDING TITLE 4, CHAPTER 4, SECTION 4-9 REGARDING PAYMENT OF SALES TAX OWED BY MARKETPLACE FACILITATORS, ALL WITHIN THE CITY OF ENGLEWOOD, COLORADO. WHEREAS, Englewood Municipal Code § 4-4-4 imposes a sales tax upon all retail sales and purchases of t angible personal property within the boundaries of the City, “including delivery within the boundaries of the City”; WHEREAS, Englewood Municipal Code § 4-4-5 imposes a use tax upon the initial privilege of storing, using or consuming within the boundaries of the City any articles of tangible personal property purchased at retail from sources outside the corporate limits of the City; WHEREAS, On June 21, 2018, the United States Supreme Court ruled that businesses without a physical presence in a State can be required to collect and remit sales taxes on transactions within the jurisdiction; WHEREAS, While most on-line retailers currently collect and remit Englewood sales tax for goods sold and delivered within City of Englewood boundaries for sales of their own products but may not collect sales tax for sale of products carried by retailers who sell their products through another on-line seller (marketplace or multichannel sellers/retailers); WHEREAS, A marketplace seller is an individual or legal entity who has an agreement with a marketplace facilitator and offers for sale tangible personal property, commodities, or services in or through the marketplace facilitator’s marketplace, and a multichannel seller offers tangible personal property, commodities, or services for sale through other means—such as their own store, or on their own website; WHEREAS, All businesses and retailers, both brick and mortar and on-line, that are in compliance with the City’s sales and use tax provisions, seek fair and balanced participation by all businesses that sell products within the City of Englewood without advantage to marketplace or multichannel sellers/retailers; and WHEREAS, The City o f Englewood seeks to maintain procedural conformity with the State of Colorado’s established sales tax definitions and requirements regarding on-line marketplace and multichannel sellers/retailers, as set forth within C.R.S. 39-26-102. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Page 40 of 436 2 In accordance with the provisions of the Englewood Municipal Code the following amendments to Title 4, Municipal Finances and Taxation, are hereby approved: Section 1. Amendment of Title 4, Chapter 4, Section 2. Title 4, Chapter 4, Section 2 of the Englewood Municipal Code shall be amended by adding the following: 4-4-2: Definitions. When used in this Chapter, the following words and phrases shall have the following meanings, unless from the context it clearly appears that a different meaning is indicated: Agricultural Producer means a person regularly engaged in the business of using land for the production of commercial crops or commercial livestock. The term includes farmers, market gardeners, commercial fruit growers, livestock breeders, dairymen, poultrymen, and other persons similarly engaged, but does not include a person who breeds or markets animals, birds, or fish for domestic pets nor a person who cultivates, grows, or harvests plants or plant products exclusively for that person's own consumption or casual sale. Auction means any sale where tangible personal property is sold by an auctioneer who is either the agent for the owner of such property or is in fact the owner thereof. Automotive Vehicle means any vehicle or device in, upon, or by which any person or property is or may be transported or drawn upon a public highway, or any device used or designed for aviation or flight in the air. Automotive Vehicle includes, but is not limited to, motor vehicles, trailers, semi -trailers, or mobile homes. Automotive Vehicle shall not include devices moved by human power or used exclusively upon stationary rails or tracks. Business means all activities engaged in or caused to be engaged in with the object of gain, benefit, or advantage, direct or indirect. Candy means a preparation of sugar, honey, or other natural or artificial sweeteners in combination with chocolate, fruit, nuts, or other ingredients or flavorings in the form of bars, drops, or pieces. Candy does not include any preparation containing flour, products that require refrigeration or marijuana infused products. Carrier Access Services means the services furnished by a local exchange company to its customers who provide telecommunications services which allow them to provide such telecommunications services. Charitable Organization means any entity which: (1) has been certified as a nonprofit organization under Section 501(c)(3) of the Internal Revenue Code, and (2) is an organization which exclusively, and in a manner consistent with existing laws and for the benefit of an indefinite number of persons or animals, freely and voluntarily ministers to the physical, mental, or spiritual needs of persons or animals, and thereby lessens the burden of government. City means the municipality of Englewood. Coin Operated Device means any device operated by coins or currency or any substitute therefor. Coins means monetized bullion or other forms of money manufactured from gold, silver, platinum, palladium or other such metals now, in the future or heretofore designated as a medium of exchange under the laws of this State, the United States or any foreign nation. Collection Costs shall include, but is not limited to, all costs of audit, assessment, bank fees, hearings, execution, lien filing, distraint, litigation, locksmith fees, auction fees and costs, prosecution and attorney fees. Commercial Packaging Materials means containers, labels, and/or cases, that become part of the finished product to the purchaser, used by or sold to a person engaged in manufacturing, compounding, wholesaling, jobbing, retailing, packaging, distributing or bottling for sale, profit or use, and is not returnable to said person for reuse. Commercial Packaging Materials does not include Commercial Shipping Materials. Commercial Shipping Materials means materials that do not become part of the finished product to the purchaser which are used exclusively in the shipping process. Commercial Shipping Materials include but Page 41 of 436 3 are not limited to containers, labels, pallets, banding material and fasteners, shipping cases, shrink wrap, bubble wrap or other forms of binding, padding or protection. Community Organization means a nonprofit entity organized and operated exclusively for the promotion of social welfare, primarily engaged in promoting the common good and general welfare of the community, so long as: (1) no part of the net earnings of which inures to the benefit of any private shareholder or individual; (2) no substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation; and (3) which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office. Construction Equipment means any equipment, including mobile machinery and mobile equipment, which is used to erect, install, alter, demolish, repair, remodel, or otherwise make improvements to any real property, building, structure or infrastructure. Construction Materials means tangible personal property which, when combined with other tangible personal property, loses its identity to become an integral and inseparable part of a structure or project including public and private improvements. Construction Materials include, but are not limited to, such things as: asphalt, bricks, builders' hardware, caulking material, cement, concrete, conduit, electric wiring and connections, fireplace inserts, electrical heating and cooling equipment, flooring, glass, gravel, insulation, lath, lead, lime, lumber, macadam, millwork, mortar, oil, paint, piping, pipe valves and pipe fittings, plaster, plumbing fixtures, putty, reinforcing mesh, road base, roofing, sand, sanitary sewer pipe, sheet metal, site lighting, steel, stone, stucco, tile, trees, shrubs and other landscaping materials, wall board, wall coping, wallpaper, weather stripping, wire netting and screen, water mains and meters, and wood preserver. The above materials, when used for forms, or other items which do not remain as an integral and inseparable part of completed structure or project are not construction materials. Consumer means any person in the City who purchases, uses, stores, distributes or otherwise consumes tangible personal property or taxable services, purchased from sources inside or outside the City. Contract Auditor means a duly authorized agent designated by the taxing authority and qualified to conduct tax audits on behalf of and pursuant to an agreement with the municipality. Contractor means any person who shall build, construct, reconstruct, alter, expand, modify, or improve any building, dwelling, structure, infrastructure, or other improvement to real property for another party pursuant to an agreement. For purposes of this definition, Contractor also includes subcontractor. Cover Charge means a charge paid to a club or similar entertainment establishment which may, or may not, entitle the patron paying such charge to receive tangible personal property, such as food and/or beverages. Data Processing Equipment means any equipment or system of equipment used in the storage, manipulation, management, display, reception or transmission of information. Digital Product means an electronic product including, but not limited to: (1) "digital images" which means works that include, but are not limited to, the following that are generally recognized in the ordinary and usual sense as "photographs," "logos," "cartoons," or "drawings," (2) "digital audio-visual works" which means a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any, (3) "digital audio works" which means works that result from the fixation of a series of musical, spoken, or other sounds, including ringtones. For purposes of the definition of "digital audio works", "ringtones" means digitized sound files that are downloaded onto a device and that may be used to alert the customer with respect to a communication, and (4) "digital books" which means works that are generally recognized in the ordinary and usual sense as "books". Distribution means the act of distributing any article of tangible personal property for use or consumption, which may include, but not be limited to, the distribution of advertising gifts, shoppers guides, catalogs, directories, or other property given as prizes, premiums, or for goodwill or in conjunction with the sales of other commodities or services. Page 42 of 436 4 Dual Residency means those situations including, but not limited to, where a person maintains a residence, place of business or business presence, both within and outside the City. A person shall be deemed to have established a legitimate residence, place of business or business presence outside of the City for purposes of dual residency if the person has a physical structure owned, leased or rented by such person which is designated by street number or road location outside of the City, has within it a telephone or telephones in the name of such person and conducts business operati ons on a regular basis at such location in a manner that includes the type of business activities for which the business (person), as defined in this Code, is organized. Dwelling Unit means a building or any portion of a building designed for occupancy as complete, independent living quarters for one (1) or more persons, having direct access from the outside of the building or through a common hall and having living, sleeping, kitchen and sanitary facilities for the exclusive use of the occupants. Engaged in Business in the City means performing or providing services or selling, leasing, renting, delivering or installing tangible personal property for storage, use or consumption, within the City. Engaged in Business in the City includes, but is not limited to, any one of the following activities by a person: (1) directly, indirectly, or by a subsidiary maintains a building, store, office, salesroom, warehouse, or other place of business within the taxing jurisdiction; (2) sends one or more employees, agents or commissioned sales persons into the taxing jurisdiction to solicit business or to install, assemble, repair, service, or assist in the use of its products, or for demonstration or other reasons; (3) maintains one or more employees, agents or commissioned sales persons on duty at a location within the taxing jurisdiction; (4) owns, leases, rents or otherwise exercises control over real or personal property within the taxing jurisdiction; (5) is required to collect and remit sales tax as a marketplace facilitator or (56) makes more than one delivery into the taxing jurisdiction within a twelve month period. Factory Built Housing means a manufactured home or modular home. Farm Closeout Sale means full and final disposition of all tangible personal property previously used by a farmer or rancher in farming or ranching operations which are being abandoned. Farm Equipment means any farm tractor, as defined in Section 42-1-102(33), C.R.S., any implement of husbandry, as defined in Section 42-1-102(44), C.R.S., and irrigation equipment having a per unit purchase price of at least one thousand dollars ($1,000.00). Farm Equipment also includes, regardless of purchase price, attachments and bailing wire, binders twine and surface wrap used primarily and directly in any farm operation. Farm Equipment also includes, regardless of purchase price, parts that are used in the repair or maintenance of the Farm Equipment described in this Paragraph, all shipping pallets, crates, or aids paid for by a farm operation, and aircraft designed or adapted to undertake agricultural applications. Farm Equipment also includes, regardless of purchase price, dairy equipment. Except for shipping pallets, crates or aids used in the transfer or shipping of agricultural products, Farm Equipment does not include: (1) vehicles subject to the registration requirements of Section 42-3-103, C.R.S., regardless of the purpose for which such vehicles are used; (2) machinery, equipment, materials, and supplies used in a manner that is incidental to a farm operation; (3) maintenance and janitorial equipment and supplies; and (4) tangible personal property used in any activity other than farming, such as office equipment and supplies and equipment and supplies used in the sale or distribution of farm products, research, or transportation. Farm Operation means the production of any of the following products for profit, including, but not limited to, a business that hires out to produce or harvest such products: (1) agricultural, viticultural, fruit, and vegetable products; (2) livestock; (3) milk; (4) honey; and (5) poultry and eggs. Finance Director means the Finance Director of the City of Englewood or such other person designated by the municipality; Finance Director shall also include such person's designee. Food For Home Consumption means food for domestic home consumption as defined in 7 U.S.C. Section 2012(k) (2014), as amended, for purposes of the supplemental nutrition assistance program, or any successor program, as defined in 7 U.S.C. Section 2012(t), as amended; except that "food" does not include carbonated water marketed in containers; chewing gum; seeds and plants to grow foods; prepared salads and salad bars; packaged and unpackaged cold sandwiches; deli trays; and hot or cold beverages served in unsealed containers or cups that are vended by or through machines or non-coin-operated coin collecting food and snack devices on behalf of a vendor. Page 43 of 436 5 Garage Sales means sales of tangible personal property, except automotive vehicles, occurring at the residence of the seller, where the property to be sold was originally purchased for use by members of the household where such sale is being conducted. The term includes, but is not limited to, yard sales, estate sales, and block sales. Gross Sales means the total amount received in money, credit, property or other consideration valued in money for all sales, leases, or rentals of tangible personal property or services. Internet Access Services means services that provide or enable computer access by multiple users to the Internet, but shall not include that portion of packaged or bundled services providing phone or television cable services when the package or bundle includes the sale of Internet Access Services. Internet Subscription Service means software programs, systems, data and applications available online through rental, lease or subscription, that provide information and services including, but not limited to, data linking, data research, data analysis, data filtering or record compiling. License means a City of Englewood sales and/or use tax license. Linen Services means services involving the provision and cleaning of linens, including but not limited to rags, uniforms, coveralls and diapers. Lodging Services means the furnishing of rooms or accommodations by any person, partnership, association, corporation, estate, representative capacity or any other combination of individuals by whatever name known to a person who for a consideration uses, possesses, or has the right to use or possess any room in a hotel, inn, bed and breakfast residence, apartment hotel, lodging house, motor hotel, guesthouse, guest ranch, trailer coach, mobile home, auto camp, or trailer court and park, short term rental, or similar establishment, for a period of less than thirty (30) days under any concession, permit, right of access, license to use, or other agreement, or otherwise. Machinery means any apparatus consisting of interrelated parts used to produce an article of tangible personal property. The term includes both the basic unit and any adjunct or attachment necessary for the basic unit to accomplish its intended function. Manufactured Home means any pre-constructed building unit or combination of pre-constructed building units, without motive power, where such unit or units are manufactured in a factory or at a location other than the residential site of the completed home, which is designed and commonly used for occupancy by persons for residential purposes, in either temporary or permanent locations, and which unit or units are not licensed as a vehicle. Manufacturing means the operation or performance of an integrated series of operations which places a product, article, substance, commodity, or other tangible personal property in a form, composition or character different from that in which it was acquired whether for sale or for use by a manufacturer. The change in form, composition or character must result in a different product having a distinctive name, character or use from the raw or prepared materials. Marketplace means a physical or electronic forum, including, but not limited to, a store, a booth, an internet website, a catalog, or a dedicated sales software application, where tangible personal property, commodities, or services are offered for sale. Marketplace Facilitator means a person who: (1) Contracts with a marketplace seller to facilitate for consideration, regardless of whether the consideration is deducted as fees from the transaction, the sale of the marketplace seller’s tangible personal property, commodities, or services through the person’s marketplace; (2) Engages directly or indirectly, through one or more affiliated persons, in transmitting or otherwise communicating the offer or acceptance between a purchaser and the marketplace seller; and (3) Either directly or indirectly, through agreements or arrangements with third parties, collects the payment from the purchaser and transmits the payment to the marketplace seller. Page 44 of 436 6 A Marketplace Facilitator” does not include a person that exclusively provides internet advertising services or lists products for sale, and that does not otherwise meet this definition. Marketplace Seller means a person, regardless of whether the person is doing business in this state, who has an agreement with a marketplace facilitator and offers for sale tangible personal property, commodities, or services through a marketplace owned, operated, or controlled by a marketplace facilitator. Multichannel Seller means a retailer that offers for sale tangible personal property, commodities, or services through a marketplace facilitator or through other means, such as their own store or their own website. Medical Marijuana means marijuana acquired, possessed, cultivated, manufactured, delivered, transported, supplied, sold, or dispensed to a person who qualifies as a patient with a debilitating medical condition(s) under Article XVIII, Section 14, of the Colorado Constitution, and which person holds a valid "registry identification card" issued by the State of Colorado pursuant to Colorado Constitution, Article XVIII, Section 14. Mobile Machinery and Self-Propelled Construction Equipment means those vehicles, self-propelled or otherwise, which are not designed primarily for the transportation of persons or cargo over the public highways, and those motor vehicles which may have originally been designed for the transportation of persons or cargo over the public highways, and those motor vehicles which may have originally been designed for the transportation of persons or cargo but which have been redesigned or modified by the mounting thereon of special equipment or machinery, and which may be only incidentally operated or moved over the public highways. This definition includes but is not limited to wheeled vehicles commonly used in the construction, maintenance, and repair of roadways, the drilling of wells, and the digging of ditches. Modular Home means any structure that consists of multiple sections fabricated, formed or assembled in manufacturing facilities for installation and assembly at the building site, and is constructed to the building codes adopted by the State Division of Housing, created in Section 24-32-706, C.R.S., and is designed to be installed on a permanent foundation. Motor Fuel means gasoline, casing head or natural gasoline, benzol, benzene and naphtha, gasohol and any other liquid prepared, advertised, offered for sale, sold for use or used or commercially usable in internal combustion engines for the generation of power for the propulsion of motor vehicles upon the public highways. The term does not include fuel used for the propulsion or drawing of aircraft or railroad cars or railroad locomotives. Newspaper means a publication, printed on newsprint, intended for general circulation, and published regularly at short intervals, containing information and editorials on current events and news of general interest. The term Newspaper does not include: magazines, trade publications or journals, credit bulletins, advertising inserts, circulars, directories, maps, racing programs, reprints, newspaper clipping and mailing services or listings, publications that include an updating or revision service, or books or pocket editions of books. Online Garage Sales means sales of tangible personal property, except automotive vehicles, occurring online, where the property to be sold was originally purchased for use by the seller or members of the seller's household. Park means any area used as a park, reservation, playground, beach, ballfield, shelter house, or any other area owned and used by the City and devoted or designated to active or passive recreation, either on a temporary or permanent basis. Person means any individual, firm, partnership, joint venture, corporation, limited liability company, estate or trust, receiver, trustee, assignee, lessee or any person acting in a fiduciary or representative capacity, whether appointed by court or otherwise, or any group or combination acting as a unit. Photovoltaic System means a power system designed to supply usable solar power by means of photovoltaics, a method of converting solar energy into direct current electricity using semiconducting materials that create voltage or electric current in a material upon exposure to light. It consists of an arrangement of several components, including solar panels to absorb and convert sunlight into electricity, Page 45 of 436 7 a solar inverter to change the electric current from DC to AC, as well as mounting, cabling, metering systems and other electrical accessories to set up a working system. Precious Metal Bullion means any precious metal, including but not limited to, gold, silver, platinum, palladium, that has been put through a process of refining and is in such a state or condition that its value depends upon its precious metal content and not its form. Prepress Preparation Material means all materials used by those in the printing industry including, but not limited to, airbrush color photos, color keys, dies, engravings, light-sensitive film, light-sensitive paper, masking materials, Mylar, plates, proofing materials, tape, transparencies, and veloxes, which are used by printers in the preparation of customer specific layouts or in plates used to fill customers' printing orders, which are eventually sold to a customer, either in their original purchase form or in an altered form, and for which a sales or use tax is demonstrably collected from the printer's customer, if applicable, either separately from the printed materials or as part of the inclusive price therefor. Materials sold to a printer which are used by the printer for the printer's own purposes, and are not sold, either directly or in an altered form, to a customer, are not included within this definition. Preprinted Newspaper Supplements shall mean inserts, attachments or supplements circulated in newspapers that: (1) are primarily devoted to advertising; and (2) the distribution, insertion, or attachment of which is commonly paid for by the advertiser. Prescription Drugs for Animals means a drug which, prior to being dispensed or delivered, is required by the federal Food, Drug, and Cosmetic Act, 21 U.S.C. Section 301, et seq., as amended, to state at a minimum the symbol "Rx Only", and is dispensed in accordance with any order in writing, dated and signed by a licensed veterinarian specifying the animal for which the medicine or drug is offered and directions, if any, to be placed on the label. Prescription Drugs for Humans means a drug which, prior to being dispensed or delivered, is required by the federal Food, Drug, and Cosmetic Act, 21 U.S.C. Section 301, et seq., as amended, to state at a minimum the symbol "Rx Only", and is dispensed in accordance with any written or electronic order dated and signed by a licensed practitioner of the healing arts, or given orally by a practitioner and immediately reduced to writing by the pharmacist, assistant pharmacist, or pharmacy intern, specifying the name and any required information of the patient for whom the medicine, drug or poison is offered and directions, if any, to be placed on the label. Price or Purchase Price means the aggregate value measured in currency paid or delivered or promised to be paid or delivered in consummation of a sale, without any discount from the price on account of the cost of materials used, labor or service cost, and exclusive of any direct tax imposed by the federal government or by this article, and, in the case of all retail sales involving the exchange of property, also exclusive of the fair market value of the property exchanged at the same time and place of the exchange, if: (1) such exchanged property is to be sold thereafter in the usual course of the retailer's business, or (2) such exchanged property is a vehicle and is exchanged for another vehicle and both vehicles are subject to licensing, registration, or certification under the laws of this state, including, but not limited to, vehicles operating upon public highways, off-highway recreation vehicles, watercraft, and aircraft. Any money or other consideration paid over and above the value of the exchanged property is subject to tax. "Price" or "Purchase Price" includes: (1) The amount of money received or due in cash and credits. (2) Property at fair market value taken in exchange but not for resale in the usual course of the retailer's business. (3) Any consideration valued in money, whereby the manufacturer or someone else reimburses the retailer for part of the purchase price and other media of exchange. (4) The total price charged on credit sales including finance charges which are not separately stated at the time of sale. An amount charged as interest on the unpaid balance of the purchase price is not part of the purchase price unless the amount added to the purchase price is included in the principal amount of a promissory note; except the interest or carrying charge set out separately from the unpaid balance of the purchase price on the face of the note is not part of the purchase Page 46 of 436 8 price. An amount charged for insurance on the property sold and separately stated at the time of sale is not part of the purchase price. (5) Installation, applying, remodeling or repairing the property, delivery and wheeling-in charges included in the purchase price and not separately stated. (6) Transportation and other charges to effect delivery of tangible personal property to the purchaser. (7) Indirect federal manufacturers' excise taxes, such as taxes on automobiles, tires and floor stock. (8) The gross purchase price of articles sold after manufacturing or after having been made to order, including the gross value of all the m aterials used, labor and service performed and the profit thereon. "Price" or "Purchase Price" shall not include: (1) Any sales or use tax imposed by the State of Colorado or by any political subdivision thereof. (2) The fair market value of property exchanged if such property is to be sold thereafter in the retailers' usual course of business. This is not limited to exchanges in Colorado. Out of state trade-ins are an allowable adjustment to the purchase price. (3) Discounts from the original price if such discount and the corresponding decrease in sales tax due is actually passed on to the purchaser, and the seller is not reimbursed for the discount by the manufacturer or someone else. An anticipated discount to be allowed for payment on or before a given date is not an allowable adjustment to the price in reporting gross sales. Private Communications Services means telecommunications services furnished to a subscriber, which entitles the subscriber to exclusive or priority use of any communication channel or groups of channels, or to the exclusive or priority use of any interstate intercommunications system for the subscriber's stations. Prosthetic Devices for Animals means any artificial limb, part, device or appliance for animal use which replaces a body part or aids or replaces a bodily function; is designed, manufactured, altered or adjusted to fit a particular patient; and is prescribed by a licensed veterinarian. Prosthetic devices include, but are not limited to, prescribed auditory, ophthalmic or ocular, cardiac, dental, or orthopedic devices or appliances, and oxygen concentrators with related accessories. Prosthetic Devices for Humans means any artificial limb, part, device or appliance for human use which replaces a body part or aids or replaces a bodily function; is designed, manufactured, altered or adjusted to fit a particular patient; and is prescribed by a licensed practitioner of the healing arts. Prosthetic devices include, but are not limited to, prescribed auditory, ophthalmic or ocular, cardiac, dental, or orthopedic devices or appliances, and oxygen concentrators with related accessories. Purchase or Sale means the acquisition for any consideration by any person of tangible personal property, other taxable products or taxable services that are purchased, leased, rented, or sold. These terms include capital leases, installment and credit sales, and property and services acquired by: (1) Transfer, either conditionally or absolutely, of title or possession or both to tangible personal property, other taxable products, or taxable services; (2) A lease, lease-purchase agreement, rental or grant of a license, including royalty agreements, to use tangible personal property, other taxable products, or taxable services; (3) Performance of taxable services; or (4) Barter or exchange for other tangible personal property, other taxable products, or services. The terms "Purchase" and "Sale" do not include: (1) A division of partnership assets among the partners according to their interests in the partnership; (2) The transfer of assets of shareholders in the formation or dissolution of professional corporations, if no consideration including, but not limited to, the assumption of a liability is paid for the transfer of assets; Page 47 of 436 9 (3) The dissolution and the pro rata distribution of the corporation's assets to its stockholders, if no consideration including, but not limited to, the assumption of a liability is paid for the transfer of assets; (4) A transfer of a partnership or limited liability company interest; (5) The transfer of assets to a commencing or existing partnership or limited liability company, if no consideration including, but not limited to, the assumption of a liability is paid for the transfer of assets; (6) The repossession of personal property by a chattel mortgage holder or foreclosure by a lienholder. Rail Carrier means as defined in Section 10102 of Title 49 of the United States Code as of October 10, 2013, and as it may be amended hereafter. Rail Carrier Part means any tangible personal property that is originally designed and intended to be permanently affixed or attached as a component part of a locomotive or rail car used by a rail carrier. Realty- means land and anything fixed, immovable, or permanently attached to it such as buildings, walls, fixtures, improvements, roads, trees, shrubs, fences, sewers, structures, and utility systems. Recreation Services means all services relating to athletic or entertainment participation events and/or activities including but not limited to pool, golf, billiards, skating, tennis, bowling, health/athletic club memberships, coin operated amusement devices, video games and video club memberships. Renewable Energy means any energy resource that is naturally regenerated over a short time scale and derived directly from the sun (such as thermal, photochemical, and photoelectric), indirectly from the sun (such as wind, hydropower, and photosynthetic energy stored in biomass), or from other natural movements and mechanisms of the environment (such as geothermal and tidal energy). Renewable Energy does not include energy resources derived from fossil fuels, waste products from fossil sources, or waste products from inorganic sources. Resident means a person who resides or maintains one or more places of business within the City, regardless of whether that person also resides or maintains a place of business outside of the City. Retail Sales means all sales except wholesale sales. Retailer means any person selling, leasing, renting, or granting a license to use tangible personal property or services at retail. Retailer shall include, but is not limited to, any: (1) aAuctioneer; (2) sSalesperson, representative, peddler or canvasser, who makes sales as a direct or indirect agent of or obtains such property or services sold from a dealer, distributor, supervisor or employer; (3) cCharitable organization or governmental entity which makes sales of tangible personal property to the public, notwithstanding the fact that the merchandise sold may have been acquired by gift or donation or that the proceeds are to be used for charitable or governmental purposes; (4) rRetailer-contractor, when acting in the capacity of a seller of building supplies, construction materials, and other tangible personal property.; and (5) Marketplace facilitator, a marketplace seller, and a multichannel seller engaged in business in the City. Retailer-Contractor means a contractor who is also a retailer of building supplies, construction materials, or other tangible personal property, and purchases, manufactures, or fabricates such property for sale (which may include installation), repair work, time and materials jobs, and/or lump sum contracts. Return means any form prescribed by the City of Englewood administration for computing and reporting a total tax liability. Page 48 of 436 10 Sale that Benefits a Colorado School means a sale of a commodity or service from which all proceeds of the sale, less only the actual cost of the commodity or service to a person or entity as described in this Code, are donated to a school or a school-approved student organization. Sales Tax means the tax that is collected or required to be collected and remitted by a retailer on sales taxed under this Code. School means a public or nonpublic school for students in kindergarten through 12th grade or any portion thereof. Security System Services means electronic alarm and/or monitoring services. Such term does not include non-electronic security services such as consulting or human or guard dog patrol services. Soft Drink means a nonalcoholic beverage that contains natural or artificial sweeteners. "Soft drink" does not include beverages that contain milk or milk products, soy, rice, or similar milk substitutes, or greater than fifty percent (50%) of vegetable or fruit juice by volume. Software Program means a sequence of instructions that can be measured, interpreted and executed by an electronic device (e.g., a computer, tablets, smart phones) regardless of the means by which it is accessed or the medium of conveyance. Software program includes: (1) custom software program, which is a software program prepared to the special order or specifications of a single customer; (2) pre-written software program, which is a software program prepared for sale or license to multiple users, and not to the special order or specifications of a single customer. Pre-written software is commonly referred to as "canned," "off-the-shelf ("COTS")," "mass produced" or "standardized;" (3) modified software, which means pre-written software that is altered or enhanced by someone other than the purchaser to create a program for a particular user; and (4) the generic term "software," "software application," as well as "updates," "upgrades," "patches," "user exits," and any items which add or extend functionality to existing software programs. Software as a Service means software that is rented, leased or subscribed to from a provider and used at the consumer's location, including but not limited to applications, systems or programs. Software License Fee means a fee charged for the right to use, access, or maintain software programs. Software Maintenance Agreement means an agreement, typically with a software provider, that may include (1) provisions to maintain the right to use the software; (2) provisions for software upgrades including code updates, version updates, code fix modifications, enhancements, and added or new functional capabilities loaded into existing software, or (3) technical support. Solar Thermal Systems means a system whose primary purpose is to use energy from the sun to produce heat or cold for: (1) heating or cooling a residential or commercial building; (2) heating or cooling water; or (3) any industrial, commercial, or manufacturing process. Sound System Services means the provision of broadcast or pre-recorded audio programming to a building or portion thereof. Such term does not include installation of sound systems where the entire system becomes the property of the building owner or the sound system service is for presentation of live performances. Special Fuel means kerosene oil, kerosene distillate, diesel fuel, all liquefied petroleum gases, and all combustible gases and liquids for use in the generation of power for propulsion of motor vehicles upon the public highways. The term does not include fuel used for the propulsion or drawing of aircraft, railroad cars or railroad locomotives. Special Sales Event means any sales event which includes more than three (3) vendors taking place at a single location for a limited period of time not to exceed seven (7) consecutive days. Storage means any keeping or retention of, or exercise dominion or control over, or possession of, for any length of time, tangible personal property not while in transit but on a stand still basis for future use when leased, rented or purchased at retail from sources either within or without the City from any person or vendor. Page 49 of 436 11 Tangible Personal Property means personal property that can be one or more of the following: seen, weighed, measured, felt, touched, stored, transported, exchanged, or that is in any other manner perceptible to the senses. Tax means the use tax due from a consumer or the sales tax due from a retailer or the sum of both due from a retailer who also consumes. Tax Deficiency or Deficiency means any amount of tax, penalty, interest, or other fee that is not reported and/or not paid on or before the date that any return or payment of the tax is required under the terms of this Code. Taxable Sales means gross sales less any exemptions and deductions specified in this Code. Taxable Services means services subject to tax pursuant to this Code. Taxpayer means any person obligated to collect and/or pay tax under the terms of this Code. Telecommunications Service means the service of which the object is the transmission of any two- way interactive electronic or electromagnetic communications including but not limited to voice, image, data and any other information, by the use of any means but not limited to wire, cable, fiber optical cable, microwave, radio wave, Voice over Internet Protocol (VoIP), or any combinations of such media, including any form of mobile two-way communication. Television and Entertainment Services means audio or visual content that can be transmitted electronically by any means, for which a charge is imposed. Therapeutic Device means devices, appliances, or related accessories that correct or treat a human physical disability or surgically created abnormality. Toll Free Telecommunications Service means a Telecommunications Service that allows a caller to dial a number without incurring an additional charge for the call. Total Tax Liability means the total of all tax, penalties and/or interest owed by a taxpayer and shall include sales tax collected in excess of such tax computed on total sales. Transient/Temporary Sale means a sale by any person who engages in a temporary business of selling and delivering goods within the city for a period of no more than seven (7) consecutive days. Transient/Temporary Vendor means any person who engages in the business of Transient/Temporary Sales. Use means the exercise, for any length of time by any person within the City of any right, power or dominion over tangible personal property or services when rented, leased or purchased at retail from sources either within or without the City from any person or vendor or used in the performance of a contract in the City whether such tangible personal property is owned or not owned by the taxpayer. Use also includes the withdrawal of items from inventory for consumption. Use Tax means the tax paid or required to be paid by a consumer for using, storing, distributing or otherwise consuming tangible personal property or taxable services inside the City. Wholesale Sales means a sale by wholesalers to retailers, jobbers, dealers, or other wholesalers for resale and does not include a sale by Wholesalers to users or consumers not for resale; latter types of sales shall be deemed to be Retail Sales and shall be subject to the provisions of this chapter. Wholesaler means any person doing an organized wholesale or jobbing business and selling to Retailers, jobbers, dealers, or other Wholesalers, for the purpose of resale, and not for storage, use, consumption, or distribution. Section 2: Title 4, Chapter 4, Section 4, Article 9. Title 4, Chapter 4, Section 4 shall be amended by adding Article 9 as follows: Page 50 of 436 12 4-4-4-9: Marketplace Facilitators. A. Duties of Marketplace Facilitators. With respect to sales of tangible personal property, commodities, or services made by marketplace sellers in or through a marketplace facilitator's marketplace, a marketplace facilitator has all of the liabilities, obligations, and rights of a retailer or vendor under Title 4 whether or not the marketplace seller, because the marketplace seller is a multichannel seller: 1. Has or is required to have a license under this Title 4; or 2. Would have been required to collect and remit tax under this Title 4 had the sale not been made in or through the marketplace. 3. Small marketplace facilitators and multichannel sellers who are exempt from collecting sales tax on behalf of the State of Colorado are also exempt from collecting sales tax on behalf of City . B. The liabilities, obligations, and rights set forth in this article are in addition to any requirements the marketplace facilitator has under this Title 4 if it also offers for sale tangible personal property, commodities, or services through other means. C. A marketplace seller, with respect to sales of tangible personal property, commodities, or services made in or through a marketplace facilitator's marketplace, does not have the liabilities, obligations, or rights of a retailer or vendor under Title 4 if the marketplace seller can show that such sale was facilitated by a marketplace facilitator: 1. With whom the marketplace seller has a contract that explicitly provides that the marketplace facilitator will collect and remit sales tax on all sales subject to tax under this Title 4; or 2. From whom the marketplace seller requested and received in good faith a certification that the marketplace facilitator is registered to collect sales tax and will collect sales tax on all sales subject to tax under Title 4 made in or through the marketplace facilitator's marketplace. D. If a marketplace facilitator demonstrates to the satisfaction of the Finance Director that the marketplace facilitator made a reasonable effort to obtain accurate information regarding the obligation to collect tax from the marketplace seller and that the failure to collect tax on any tangible personal property, commodities, or services sold was due to incorrect information provided to the marketplace facilitator by the marketplace seller, then the marketplace facilitator, but not the marketplace seller, is relieved of liability under Title 4 for the amount of the tax the marketplace facilitator failed to collect, plus applicable penalties and interest. 1. If a marketplace facilitator is relieved of liability under this section, the marketplace seller remains liable under this Title 4 for tax the marketplace facilitator failed to collect, plus applicable penalties and interest. 2. Subsection (D)(1) does not apply to any sale by a marketplace facilitator that is not facilitated on behalf of a marketplace seller or that is facilitated on behalf of a marketplace seller who is an affiliate of the marketplace facilitator. Section 3. Notice of general provisions and findings applicable to interpretation and application of this Ordinance: Applicability of Title 1, Chapter 2, Saving Clause. The provisions of E.M.C. Title 1, Chapter 2, Saving Clause apply to interpretation and application of this Ordinance, unless otherwise set forth above, including, but not limited to, the provisions regarding severability, inconsistent ordinances or code provisions, effect of repeal or modification, and legislation not affected by repeal. Enforcement. E.M.C. Title 4, Chapter 4, Section 20 provides that in addition to or in lieu of any other penalty or punishment prescribed in that Chapter, the following penalty may also be imposed for violation of any of the provisions of Title 4, Chapter 4: a five hundred dollar ($500.00) fine or one hundred eighty (180) days imprisonment, or both such fine and imprisonment. A separate offense shall be deemed committed upon each day or portion thereof during or on which any violation of any of the provisions of Title 4, Chapter 4 occurs or continues. Page 51 of 436 13 Safety Clauses. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Englewood, that it is promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. Introduced, read in full, and passed on first reading on the 6th day of April, 2020. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 9th day of April, 2020. Published as a Bill for an Ordinance on the City’s official website beginning on the 8th day of April, 2020 for thirty (30) days. Read by Title and passed on final reading on the 20 th day of April, 2020. Published by Title in the City’s official newspaper as Ordinance No. ___, Series of 2020, on the23rd day of April, 2020 Published by title on the City’s official website beginning on the 22 nd day of April, 2020 for thirty (30) days. This Ordinance shall take effect thirty (30) days after publication following final passage. Linda Olson, Mayor ATTEST: Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Ordinanc e passed on final reading and published by Title as Ordinance No. ___, Series of 2020. Stephanie Carlile Page 52 of 436 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Brad Power DEPARTMENT: Community Development DATE: April 20, 2020 SUBJECT: CB #15 - Subgrantee Agreement with Arapahoe County for 2019 CDBG funds DESCRIPTION: CB #15 - Subgrantee Agreement with Arapahoe County for 2019 CDBG funds RECOMMENDATION: Staff recommends that City Council approve, by Ordinance, the execution of an Intergovernmental Subgrantee Agreement for the 2019 Community Development Block Grant (CDBG) program between Arapahoe County and the City of Englewood. PREVIOUS COUNCIL ACTION: City Council approved Ordinance 12, Series 2018 authorizing the city's participation in the Urban County Entitlement Program for CDBG and HOME funds for fiscal years 2019 through 2021. Council approved Resolution 23, Series 2018 authorizing the Community Development Department to submit an application for 2019 CDBG funding. This type of action has been undertaken between the City of Englewood and Arapahoe County regarding CDBG funding for approximately 50 years. ANALYSIS: The federal CDBG program provides grants to units of local government and urban counties to meet housing and community development needs. The objective of the program is achieved through projects developed by the local governments that are designed to give priority to those activities that benefit low and moderate income families. Funds are allocated by statutory formula to each entitlement area. Arapahoe County is an approved entitlement area, and grant funds are distributed by Arapahoe County to each participating city within the county. For FY2019, funds were approved to support the following project: • $115,000 for the Energy Efficiency Englewood (E3) project to provide matching grants to 12 low to moderate income homeowners for energy efficiency interior and exterior home improvements. FINANCIAL IMPLICATIONS: Community Development staff are available to administer the project; their salaries and benefits are part of the city's contribution. The city will utilize approximately $9,400 of the CDBG administration budget from the project to partially offset those salaries and benefits. The remaining administration budget is dedicated for energy audits and lead based paint testings. Page 53 of 436 ATTACHMENTS: Council Bill 15 Sub-Grantee Agreement with Exhibit A - Scope of Services Resolution 23, Series 2018 Ordinance 12, Series 2018 Page 54 of 436 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. 15 SERIES OF 2020 INTRODUCED BY COUNCIL MEMBER _____________ A BILL FOR AN ORDINANCE AUTHORIZING THE EXECUTION OF AN INTERGOVERNMENTAL SUBGRANTEE AGREEMENT FOR 2019 COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) FUNDS BETWEEN THE ARAPAHOE BOARD OF COUNTY COMMISSIONERS AND THE CITY OF ENGLEWOOD WHEREAS, the City Council of the City of Englewood approved the execution of an Intergovernmental Agreement between the City of Englewood and Arapahoe County by passage of Ordinance No. 12, Series of 2018, for funding years 2019 through 2021; WHEREAS, the Englewood City Council passed Resolution No. 23, Series of 2018, that authorized Community Development to submit an application for 201 9 CDBG funding; and WHEREAS, the Energy Efficient Englewood (E3) Project has been categorized as a housing rehabilitation activity. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. The Subgrantee Agreement for Arapahoe County Community Development Block Grant Funds – Subgrantee: City of Englewood, Project Name: Energy Efficient Englewood (E3), Project Number: ENHS1904, attached hereto as Attachment 1, is hereby accepted and approved by the Englewood City Council. Section 2. Community Development Block Grant (CDBG) funds are Federal Housing and Urban Development funds which are administered through Arapahoe County, Colo rado. Section 3. The Mayor and City Clerk are authorized to execute and attest said Intergovernmental Agreement for and on behalf of the City of Englewood. Introduced, read in full, and passed on first reading on the 20th day of April, 2020. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 23rd day of April, 2020. Published as a Bill for an Ordinance on the City’s official website beginning on the 22nd day of April, 2020 for thirty (30) days. Page 55 of 436 2 Linda Olson, Mayor ATTEST: Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Bill for an Ordinance introduced, read in full, and passed on first reading on the 20th day of April, 2020. Stephanie Carlile Page 56 of 436 1 SUBGRANTEE AGREEMENT FOR ARAPAHOE COUNTY COMMUNITY DEVELOPMENT BLOCK GRANT FUNDS SUBGRANTEE: City of Englewood PROJECT NAME: Energy Efficient Englewood (E3) PROJECT NUMBER: ENHS1904 This Agreement is made by and between the Board of County Commissioners of the County of Arapahoe, State of Colorado, for the Community Development Block Grant Program in the Community Resources Department (hereinafter referred to as the County) and City of Englewood (hereinafter referred to as the SubGrantee) for the conduct of a Community Development Block Grant (CDBG) Project. I. PURPOSE The primary objective of Title I of the Housing and Community Development Act of 1974, as amended, and of the Community Development Block Grant (CDBG) Program under this Title is the development of viable urban communities, by providing decent housing, a suitable living environment and expanding economic opportunities, principally for low and moderate income persons. The project by the SubGrantee known as Energy Efficient Englewood (E3) (Project) will be carried out in accordance with the Scope of Services, attached to, and incorporated herein as Exhibit A. The SubGrantee may proceed to incur costs for the Project upon receipt of an official “Notice to Proceed” from the County. II. WORK TO BE COMPLETED BY THE SUBGRANTEE The grant funds are to be used only to provide services to Arapahoe County residents, excluding residents of the city of Aurora, per County CDBG guidelines. A. Payment It is expressly agreed and understood that the total amount to be paid by the County under this contract shall not exceed $115,000. Drawdowns for the payment of eligible expenses shall be made against the line item budgets specified in the Project Budget and in accordance with performance criteria established in Exhibit A Scope of Services. The parties expressly recognize that the SubGrantee is to be paid with CDBG funds received from the federal government, and that the obligation of the County to make payment to SubGrantee is contingent upon receipt of such funds. In the event that said funds, or any part thereof, are, or become, unavailable, then the County may immediately terminate or, amend this agreement. To the extent C.R.S. § 29-1-110 is applicable, any financial obligation of the County to the SubGrantee beyond the current fiscal year is also contingent upon adequate funds being appropriated, budgeted and otherwise available. Page 57 of 436 2 Upon expiration of this Agreement, as identified by the Agreement Date and Project Deadline (Deadline) in Exhibit A, the SubGrantee shall transfer to the County any CDBG funds on hand at the time of expiration and any accounts receivable attributable to the use of CDBG funds. These transferred funds shall revert to the County and be utilized for other purposes. B. Timeline All Project activities shall be completed and draw requests submitted by the Deadline unless the Subgrantee notifies the County in writing thirty (30) days prior to the Deadline that the funds cannot be disbursed. An extension may be granted, in writing, in which all draw requests be submitted and Project activities shall be completed by thirty (30) days following the Deadline. In the event that the completion deadline falls on a weekend or holiday, the Deadline will be considered the work day prior to the scheduled completion date. If the project requires additional time past the extended Deadline, the Agreement must be modified by mutual agreement of the County and the SubGrantee. C. Performance Criteria In accordance with the funding application submitted by the SubGrantee for the Project, the criteria listed below are to be met during the execution of the Project as identified in Exhibit A Scope of Services. 1. Quantifiable Goals 2. Community Impact 3. Monthly Performance Standards D. Reporting Requirements 1. Project reports will be due within twenty (20) days following the end of each reporting period as specified in Exhibit A Scope of Services until the Project is completed. 2. The official annual audit and/or Financial Statements for the SubGrantee in which both revenues and expenditures for the CDBG Projects described herein are detailed are due annually. The last completed official annual audit report and/or Financial Statements shall be due on May 31, and for four (4) years thereafter on May 31. 3. Non-profit organizations that expend $750,000 or more annually in federal funds shall comply with the Single Audit Act of 1984, as amended, as implemented in OMB Uniform Guidance §200.501, and other applicable federal regulations. Page 58 of 436 3 III. RESPONSIBILITIES OF THE SUBGRANTEE A. Federal Compliance The SubGrantee shall comply with all applicable federal laws, regulations and requirements, and all provisions of the grant agreements received from the U.S. Department of Housing and Urban Development (HUD) by the County. These include but are not limited to compliance with the provisions of the Housing and Community Development Act of 1974 and all rules, regulations, guidelines and circulars promulgated by the various federal departments, agencies, administrations and commissions relating to the CDBG Program. A listing of some of the applicable laws and regulations are as follows: 1. 2 CFR Part 200; 2. 24 CFR Part 570; 3. 24 CFR Parts 84 and 85 as applicable per 24 CFR 570.502; 4. Title VI of the Civil Rights Act of 1964; 5. Title VIII of the Civil Rights Act of 1968; 6. Sections 104(b) and 109 of the Housing and Community Development Act of 1974; 7. Fair housing regulations established in the Fair Housing Act, Public Law 90-284, and Executive Order 11063; 8. Section 504 of the Rehabilitation Act of 1973; 9. Asbestos guidelines established in CPD Notice 90-44; 10. The Energy Policy and Conservation Act (Public Law 94-163) and 24 CFR Part 39; 11. Non-discrimination in employment, established by Executive Order 11246; 12. Equal employment opportunity and minority business enterprise regulations established in 24 CFR part 570.904; 13. Section 3 of the Housing and Urban Development Act of 1968; The purpose of section 3 is to ensure that employment and other economic opportunities generated by certain HUD financial assistance shall, to the greatest extent feasible, and consistent with existing Federal, State and local laws and regulations, be directed to low- and very low income persons, particularly those who are recipients of government assistance for housing, and to business concerns which provide economic opportunities to low- and very low-income persons. 14. Federal procurement rules when purchasing services, supplies, materials, or equipment. The applicable federal regulations are contained in: 24 CFR Part 85 or through 24 CFR Part 84, as applicable; 15. Lead Based Paint regulations established in 24 CFR Parts 35 and 570.608; 16. Audit Requirements established in OMB Uniform Guidance §200.501; and 17. Cost principles established in OMB Uniform Guidance §200.430 and §200.431 as applicable per 24 CFR 570.502; 18. Conflict of Interest: a) Applicability. Page 59 of 436 4 (1) In the procurement of supplies, equipment, construction, and services by the County and by the SubGrantee, the conflict of interest provisions in 24 CFR 85.36 and 24 CFR 84.42, respectively shall apply. (2) In all cases not governed by 24 CFR 85.36 and 84.42, the provisions of 24 CFR 570.611 (2) shall apply. Such cases include the acquisition and disposition of real property and the provision of assistance by the County or by its SubGrantees to individuals, businesses, and other private entities under eligible activities that authorize such assistance (e.g., rehabilitation, preservation, and other improvements of private properties or facilities pursuant to 24 CFR 570.202; or grants, loans, and other assistance to businesses, individuals, and other private entities pursuant to 24 CFR 570.203, 570.204, 570.455, or 570.703 (i)). b) Conflicts prohibited. The general rule is that persons described in paragraph (c) of this section who exercise or have exercised any functions or responsibilities with respect to CDBG activities assisted under this part, or who are in a position to participate in a decision-making process or gain inside information with regard to such activities, may not obtain a financial interest or benefit from a CDBG-assisted activity, either for themselves or those with whom they have business or immediate family ties, during their tenure or for one year thereafter. c) Persons covered. The conflict of interest provisions of paragraph (b) of this section apply to any person who is an emplo yee, agent, consultant, officer, or elected official or appointed official of the County, or any designated public agencies, or of the SubGrantee that are receiving funds under this part. d) Exceptions. Upon the written request of the County, HUD may grant an exception to the provisions of paragraph (b) of this section on a case-by-case basis when it has satisfactorily met the threshold requirements of (d)(1) of this section, taking into account the cumulative effects of paragraph (d)(2) of this section. (1) Threshold requirements. HUD will consider an exception only after the County has provided the following documentation: i. A disclosure of the nature of the conflict, accompanied by an assurance that there has been public disclosure of the conflict and a description of how the public disclosure was made; and ii. An opinion of the County’s attorney that the interest for which the exemption is sought would not violate State or local law. (2) Factors to be considered for exceptions. In determining whether to grant a requested exception after the County has satisfactorily met the requirements of paragraph (d)(1) of this section, HUD shall conclude that such an exception will serve to further the Page 60 of 436 5 purposes of the Act and the effective and efficient administration of the County’s program or project, taking into account the following factors, as applicable: i. Whether the exception would provide a significant cost benefit or an essential degree of expertise to the program or project that would otherwise not be available; ii. Whether an opportunity was provided for open competitive bidding or negotiation; iii. Whether the person affected is a member of a group or class of low- or moderate-income persons intended to be the beneficiaries of the assisted activity, and the exception will permit such person to receive generally the same interests or benefits as are being made available or provided to the group or class; iv. Whether the affected person has withdrawn from his or her functions or responsibilities, or the decision making process with respect to the specific assisted activity in question; v. Whether the interest or benefit was present before the affected person was in a position as described in paragraph (b) of this section; vi. Whether undue hardship will result either to the County or the person affected when weighed against the public interest served by avoiding the prohibited conflict; and vii. Any other relevant considerations. 19. The SubGrantee cannot engage in a federally funded contract with any entity registered in the Lists of Parties Excluded From Federal Procurement or Nonprocurement Programs. 20. Labor Standards (Davis-Bacon) Except for the rehabilitation of residential property that contains less than eight (8) units, the SubGrantee, and its contractor and all subcontractors shall comply with the Davis-Bacon Act, 40 U.S.C. 276a to 276a-7, and applicable regulations of the Department of Labor under 29 C.F.R. Part 5, requiring the payment of wages at rates of not less than those prevailing on similar construction in the locality as determined by the Secretary of Labor, when the project costs total $2,000 or more and the work is financed in whole or in part with assistance provided under this Agreement. The applicable Davis-Bacon wage rate schedule must be included in all bid and contract documents, as well as the “Federal Labor Standards Provisions”, Form HUD-4010. Page 61 of 436 6 21. Lead Based Paint Regulations If the Project involves acquisition, construction, demolition, rehabilitation, or any other activity related to residential housing, and the building was built prior to 1978, Lead Based Paint Laws and Regulations apply, as established in 24 CFR Parts 35 and 24 CFR 570.608. Further, all applicable federal and state laws relating to lead- based paint must be followed, including such regulations promulgated by the U.S. Environmental Protection Agency and the State Department of Public Health and Environment, including regulations for non-housing buildings. If the SubGrantee does not follow and document lead based paint laws and regulation compliance, the SubGrantee will not be eligible for reimbursement. 22. Environmental Review Notwithstanding any provision of this Agreement, the parties hereto agree and acknowledge that this Agreement does not constitute a commitment of funds or site approval, and that such commitment of funds or approval may occur only upon satisfactory completion of environmental review and, if required, receipt by Arapahoe County of a release of funds from the U.S. Department of Housing and Urban Development under 24 CFR Part 58. The parties further agree that the provision of any funds to the project is conditioned on Arapahoe County’s determination to proceed with, modify, or cancel the project based on the results of a subsequent environmental review. 22. Uniform Relocation Act (URA) The Project is subject to the relocation and acquisition requirements of the Uniform Relocation Act of 1970, as amended, and implemented at 49 CFR Part 24; Section 104(d) of the Housing & Community Development Act, as amended, and implemented at 24 CFR Part 42; and Displacement, Relocation, Acquisition, and Replacement of Housing implemented at 24 CFR 570.606. The SubGrantee must comply with the County’s Anti Displacement and Relocation Assistance Plan on file and must pay all relocation expenses as applicable under the Act. Relocation payment calculations, records of Relocation payments and all other Relocation records are subject to County or federal review and monitoring. The SubGrantee agrees that it will pay any relocation expenses required by the Act and will reimburse the County for any relocation payments the County paid as a result of monitoring review by the County or any federal agency, as required by the Act. Page 62 of 436 7 B. Non-Appropriations Clause The SubGrantee agrees that it will include in every contract it enters, which relies upon CDBG monies for funding, a non-appropriation clause that will protect itself, and the County from any liability or responsibility or any suit which might result from the discontinuance of CDBG funding for any reason. Because this SubGrantee Agreement involves funds from a federal grant, to the extent there is a conflict the funding provisions of this SubGrantee Agreement, the federal grant and the federal statutes control rather than the provisions of Section 24-91- 103.6, C.R.S. with regard to any public work projects. C. Expenditure Restrictions All CDBG funds that are approved by HUD for expenditure under the County's grant agreement, including those that are identified for the SubGrantee's Projects and activities, shall be allocated to the specific projects and activities described and listed in the grant agreements. The allocated funds shall be used and expended only for the projects and activities for which the funds are identified. D. Agreement Changes No projects or activities, nor the amount allocated therefore, may be changed without approval by the County and acceptance of the revised Final Statement and/or Consolidated Plan by HUD, if required. Changes must be requested in writing and may not begin until a modification to this Agreement is fully executed. E. Direct Project Supervision and Administration The SubGrantee shall be responsible for the direct supervision and administration of its respective projects or activities. This task shall be accomplished through the use of the SubGrantee's staff, agency and employees. The SubGrantee shall be responsible for any injury to persons or damage to property resulting from the negligent acts or errors and omissions of its staff, agents and employees. Because the SubGrantee is responsible for the direct supervision and administration of its projects or activities, the County shall not be liable or responsible for cost overruns by the SubGrantee on any projects or activities. The County shall have no duty or obligation to provide any additional funding to the SubGrantee if its projects or activities cannot be completed with the funds allocated by the County to the SubGrantee. Any cost overruns shall be the sole responsibility of the SubGrantee. 1. The SubGrantee agrees that all funds allocated to it for approved projects or activities shall be used solely for the purposes approved by the County. Said funds shall not be used for any non-approved purposes. 2. The SubGrantee agrees that the funds allocated for any approved projects or activities shall be sufficient to complete said projects or activities without any additional CDBG funding. Page 63 of 436 8 F. Indemnity To the extent allowed by law, the SubGrantee shall indemnify and hold harmless the County and its elected and appointed officials, officers, employees and agents from and against any and all losses, damages, liabilities, claims, suits, actions or costs, including attorneys fees, made, asserted or incurred as a result of any damage or alleged damage to person or property occasioned by the acts or omissions of SubGrantee, its officers, employees, agents, contractors or subcontractors, arising out of or in any way connected with the Project or the performance of this contract. G. Bonding and Insurance If the SubGrantee's projects involve construction activities, any Contractor it uses for said activities shall be required to provide and maintain, until final acceptance by the SubGrantee of all work by such Contractor, the kinds and minimum amounts of insurance as follows: 1. Comprehensive General Liability: In the amount of not less than $1,000,000 combined single limit. Coverage to include: a. Premises Operations b. Products/Completed Operations c. Broad Form Contractual Liability d. Independent Contractors e. Broad Form Property Damage f. Employees as Additional Insured g. Personal Injury h. Arapahoe County and the SubGrantee as Additional Named Insured i. Waiver of Subrogation 2. Comprehensive Automobile Liability: In the amount of not less than $1,000,000 combined single limit for bodily injury and property damage. Coverage to include: a. Arapahoe County and the SubGrantee as additional Named Insured b. Waiver of Subrogation 3. Employers Liability and Workers Compensation: The Contractor shall secure and maintain employer's liability and Worker's Compensation Insurance that will protect it against any and all claims resulting from injuries to and death of workers engaged in work under any contract funded pursuant to this agreement. Coverage to include Waiver of Subrogation. 4. All referenced insurance policies and/or certificates of insurance shall be subject to the following stipulations: a. Underwriters shall have no rights of recovery subrogation against Arapahoe County or the SubGrantee; it being the intent of the parties that the insurance policies so effected shall protect the parties and be Page 64 of 436 9 primary coverage for any and all losses covered by the described insurance. b. The clause entitled "Other Insurance Provisions" contained in any policy including Arapahoe County as an additional named insured shall not apply to Arapahoe County, or the SubGrantee. c. The insurance companies issuing the policy or policies shall have no recourse against Arapahoe County, or the SubGrantee for payment of any premiums due or for any assessments under any form of any policy. d. Any and all deductibles contained in any insurance policy shall be assumed by and at the sole risk of the Contractor. 5. Certificate of Insurance: The Contractor shall not commence work under any contract funded pursuant to this Agreement until he has submitted to the SubGrantee, received approval thereof, certificates of insurance showing that he has complied with the foregoing insurance requirements. The SubGrantee shall also submit a copy of the Contractor's certificates of insurance to the County. 6. Notwithstanding the provisions contained in this paragraph (H) set forth hereinabove, the County reserves the right to modify or waive said provisions for projects or activities for which these provisions would prove prohibitive. The SubGrantee understands, however, that the decision to waive or modify those provisions is fully within the discretion of the County. In accordance with 24 CFR parts 84 and 85, the following bonding requirements shall apply to all projects exceeding the simplified acquisition threshold (currently $250,000): 1. A bid guarantee from each bidder equivalent to 5% of the bid price; 2. A performance bond on the part of the contractor for 100% of the contract price; and 3. A payment bond on the part of the contractor for 100% of the contract price. H. Records The SubGrantee shall maintain a complete set of books and records documenting its use of CDBG funds and its supervision and administration of the Project. Records are to include documentation verifying Project eligibility and national objective compliance, as well as financial and other administrative aspects involved in performing the Project. The SubGrantee shall provide full access to these books and records to the County, the Secretary of HUD or his designee, the Office of the Inspector General, and the General Accounting Office so that compliance with Federal laws and regulations may be confirmed. The SubGrantee further agrees to provide to the County upon request, a copy of any audit reports pertaining to the SubGrantee's financial operations during the term of this Agreement. All records pertaining to the Project are to be maintained for a minimum of five years following close-out of the Project. Page 65 of 436 10 I. Reporting The SubGrantee shall file all reports and other information necessary to comply with applicable Federal laws and regulations as required by the County and HUD. This shall include providing to the County the information necessary to complete annual Performance Reports in a timely fashion. J. Timeliness The SubGrantee shall comply with the performance standards established in Exhibit A of this Agreement. The SubGrantee understands that failure to comply with the established standards may lead to a cancellation of the Project and a loss of all unexpended funds. K. Reimbursement for Expenses The SubGrantee agrees that before the County can distribute any CDBG funds to it, the SubGrantee must submit to the County's Housing and Community Development Services Division documentation in the form required by that Division which properly and fully identifies the amount which the SubGrantee is requesting at that time. The County shall have ten (10) working days to review the request. Upon approval of the request, the County will distribute the requested funds to the SubGrantee as soon as possible. L. Program Income All program income directly derived from the Arapahoe County Community Development Block Grant Program received by the SubGrantee will be returned to the County unless authorized in Exhibit A Scope of Services to be retained by the SubGrantee and dispersed for its approved CDBG Project activities. If the retention and re-use of Program Income is Authorized, it must be dispersed for its approved CDBG Project activities before additional CDBG funds are requested from the County. Following completion of the SubGrantee's Arapahoe County CDBG Projects, all program income directly generated from the use of CDBG funds will be remitted to the County. M. Real Property Real property acquired in whole or in part with CDBG funds shall be utilized in accordance with the scope and goals identified in Exhibit A Scope of Services attached to and made a part of this Agreement. Should the property in question be sold or otherwise disposed of, or the approved property usage discontinued, the SubGrantee shall adhere to the requirements of 24 CFR Parts 84 or 85 (as applicable) regarding the use and disposition of real property. N. State and County Law Compliance All responsibilities of the SubGrantee enumerated herein shall be subject to applicable State of Colorado statutes and County ordinances, resolutions, rules, and regulations. Page 66 of 436 11 O. Subcontracts If subcontracts are used on the Project, the SubGrantee agrees that the provisions of this Agreement shall apply to any subcontract. P. Suspension or Termination This Agreement may be immediately suspended or terminated upon written notification from the County if the SubGrantee materially fails to comply with any term of this Agreement. This Agreement may also be terminated for convenience by mutual agreement of the County and the SubGrantee. Q. Urban County Designation In the event that the Unit of General Local Government should withdraw from the County's "Urban County" designation, this Agreement shall terminate as of the termination date of the County's CDBG grant Agreement with HUD. R. Certification The SubGrantee certifies that to the best of its knowledge and belief: 1. No Federal appropriated funds have been paid or will be paid, by or on behalf of it, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement; and, 2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, it will complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. S. Disallowance If it is determined by HUD or other federal agency that the expenditure, in whole or in part, for the SubGrantee's Project or activity was improper, inappropriate or ineligible for reimbursement, then the SubGrantee shall reimburse the County to the full extent of the disallowance. Page 67 of 436 12 T. Reversion of Assets Upon expiration of this Agreement, the SubGrantee shall transfer to the County any CDBG funds on hand at the time of expiration and any accounts receivable attributable to the use of CDBG funds. Any real property under the SubGrantee's control that was acquired or improved in whole or in part with CDBG funds (including CDBG funds provided to the SubGrantee in the form of a loan) in excess of $25,000 is either: (i) Used to meet one of the national objectives in §570.208 (formerly §570.901) until five years after expiration of the agreement, or for such longer period of time as determined to be appropriate by the County and specified in Exhibit A Scope of Services; or (ii) Not used in accordance with national objectives in §570.208 (formerly §570.901), in which event the SubGrantee shall pay to the County an amount equal to the current market value of the property less any portion of the value attributable to expenditures of non-CDBG funds for the acquisition of, or improvement to, the property. IV. RESPONSIBILITIES OF THE COUNTY A. Administrative Control The Parties recognize and understand that the County will be the governmental entity required to execute all grant agreements received from HUD pursuant to the County's requests for CDBG funds. Accordingly, the SubGrantee agrees that as to its projects or activities performed or conducted under any CDBG agreement, the County shall have the necessary administrative control required to meet HUD requirements. B. Performance and Compliance Monitoring The County's administrative obligations to the SubGrantee pursuant to paragraph A above shall be limited to the performance of the administrative tasks necessary to make CDBG funds available to the SubGrantee and to provide Housing and Community Development Services staff whose job it will be to monitor the various projects funded with CDBG monies to monitor compliance with applicable Federal laws and regulations. C. Reporting to HUD The County will be responsible for seeing that all necessary reports and information required of the County are filed with HUD and other applicable Federal agencies in a timely fashion. Page 68 of 436 13 V. EXTENT OF THE AGREEMENT This agreement, including any documents attached as exhibits which are hereby incorporated herein by reference, represents the entire and integrated agreement between the County, and SubGrantee and supersedes all prior negotiations, representations or agreements, either written or oral. Any amendments to this agreement must be in writing and signed by both the County, and SubGrantee. If any portion of this agreement is found by a court of competent jurisdiction to be void and/or unenforceable, it is the intent of the parties that the remaining portions of this agreement shall be of full force and effect. VI. NOTICES Notices to be provided under this Agreement shall be given in writing and either delivered by hand or deposited in the United States mail with sufficient postage to the addresses set forth: To the County: Arapahoe County Attorney 5334 S. Prince Street Littleton, CO 80120-1136 and Arapahoe County Housing and Community Development 1690 W. Littleton Blvd., #300 Littleton, CO 80120-2069 To the SubGrantee: City of Englewood 1000 Englewood Parkway Englewood, CO 80110 Attn: Nancy Fenton Page 69 of 436 14 In Witness Whereof, the Parties have caused this Agreement to be duly executed this _____________ day of _________________________________, ___________. SubGrantee: City of Englewood ________________________________________________ Signature ________________________________________________ Name & Title Board of County Commissioners Arapahoe County, Colorado ________________________________________________ Don Klemme on behalf of the Board of County Commissioners Pursuant to Resolution #190049 Page 70 of 436 1 EXHIBIT A SCOPE OF SERVICES FOR CDBG REHAB Subgrantee: City of Englewood Project Name: Energy Efficiency Englewood (E3) Project #: ENHS1904 Program Name: Community Development Block Grant (CDBG) CFDA #: CDBG 14.218 AGREEMENT AMOUNT: $115,000 AGREEMENT END DATE AND PROJECT DEADLINE: 12/31/2021 INTRODUCTION This Scope of Services is attached to and incorporated into the SubGrantee Agreement between the Board of County Commissioners of the County of Arapahoe, State of Colorado and the City of Englewood (SubGrantee) as referenced in the Agreement. The purpose of this Scope of Services is to further describe the project requirements referenced in Section II. C. - Performance Criteria of the SubGrantee Agreement. 1. FEDERAL REGULATORY INFORMATION CDBG National Objective1: Benefit to low- and moderate- income (LMI) housing HUD Matrix Code: 14A Rehab: Single Unit Residential Proposed Number of beneficiaries*: 12 Accomplishment Type: 10 LMC Household *Beneficiaries are to be counted by the number of total number of PEOPLE or HOUSEHOLDS who will benefit from the project (including all members of a household). The Project will be carried out under the: CDBG Area Benefit definition CDBG Limited Clientele definition For Limited Clientele Activities: Select which method of income verification will be used: Self-Certification Verification with supporting income documentation If income will be verified2, select the method that will be used to determine annual household income: HUD Income Calculator Part 5 Section 8 Census Long Form 1 Change to appropriate National Objective if necessary. 2 For descriptions of each income verification method and required documentation, go to: https://www.hudexchange.info/incomecalculator/ This website provides an on-line income calculator for each of the three verification methods. The use of the calculator is required and a print- out of the completed calculator for each household assisted must be maintained on file. Page 71 of 436 2 2. ACTIVITY DESCRIPTION/PERFORMANCE GOALS a. Purpose (short description of program purpose) The E3 project will provide grants up to $8,000 with a homeowner’s match of 20% for conservation and energy efficiency repairs and upgrades to preserve the existing housing stock in Englewood. Due to the fact that 66% of the houses in Englewood were built before 1970 and 83% of the houses were built prior to 1980, a significant number of these homes require energy efficiency repairs and upgrades to preserve the housing stock and keep residents housed in safe homes. The E3 program is only available to City of Englewood homeowners meeting low to moderate income requirements (0-80% AMI). The program provides an incentive to lower income families to encourage conservation and energy efficiency upgrades. b. Goals and Community Impact Provide grants to roughly 12 single family homeowners in Englewood, preserving the city housing stock supporting low to moderate income residents. c. Project Address-throughout Arapahoe County Sites within Englewood city limits; addresses are unknown at this time. d. Name of Organization Carrying out the Activity –City of Englewood Organization is: Another unit of local gov’t; Another public agency; CBDO only; Subrecipient only; CBDO designated as subrecipient e. Local Jurisdictions rules and regulations/ADA SubGrantee agrees that it has read and understands the local jurisdiction’s rules and regulations and local codes pertaining to the work and that all work will be permitted with the municipality and completed according to its rules and regulations. SubGrantee will perform the work in accordance with the Americans with Disabilities Act (ADA). f. Detailed Program Requirements The responsibilities of the City of Englewood for implementation of the program will include:  Market the program;  Review all applications;  Determine applicants’ eligibility;  Maintain a list of approved contractors;  Complete a Site Specific Environmental Review;  Refer clients to Arapahoe County Weatherization, when appropriate;  Determine client needs and develop comprehensive work specifications based on Energy Audit;  Prepare client documentation;  Monitor rehab activity;  Comply with lead-based paint regulations and ensure that tenants, owners and contractors are aware of their rights, responsibilities and options;  Maintain program activity records and produce reports as set forth in this contract;  Comply with State Historic Preservation Office (SHPO) Agreement for work completed on homes 50 years or older, or homes eligible for historic preservation designation;  Comply with Section 3 requirements;  To the greatest extent feasible, award contracts to Section 3, minority- owned, and women-owned businesses. Page 72 of 436 3  Contact SHPO for work on homes 50 years or older, or homes eligible for historic preservation that is not included in the programmatic agreement;  Homeowner selects company/individual to conduct work or purchase materials. Company name and/or individual name must be matched against the Federal Excluded Party List System by City staff to insure eligibility to receive federal funds. This is completed before any work begins. Once cleared the homeowner is instructed to proceed and to ensure appropriate permits are obtained, if required, by the Englewood Building and Safety Division.  Ensure that costs are reasonable: o Does not exceed that which would be incurred by a prudent person under the circumstances prevailing at the time the decision was made to incur the cost; o Is consistent with sound business practices; and o Is consistent with market prices for similar goods and services;  Payment may be made either directly to homeowner, upon receipt of paid invoices, or paid directly to company/individual. Reimbursement is 80% of the total invoice when a 20% match is required. Copies of checks and invoices are placed in file;  Items will meet or exceed energy standards set forth at www.energystar.gov; and  Homeowner sign-off on the job being completed as stated in the description of work.  Drawdown requests must be accompanied by monthly reports, including demographics (income, race/ethnicity) for persons served.  Final drawdown request must be accompanied by a year-end completion report highlighting project accomplishments, including demographics, as well as the annual SHPO report. g. Program Income Program income is the gross income received by the SubGrantee directly generated from the use of CDBG funds under this Agreement. Program income includes:  Proceeds from the sale or lease of property purchased or improved with CDBG funds until five years after the termination of this Agreement;  Proceeds from the sale or lease of equipment purchased with CDBG funds;  Gross income from the use or rental of real or personal property acquired, constructed or improved by the SubGrantee less costs incidental to the generation of income;  Payments of principal and interest on loans made by the SubGrantee using CDBG funds;  Proceeds from the sale of loans or obligations secured by loans made with CDBG funds;  Interest earned on program income pending its disposition (NOTE: interest earned on CDBG funds held in revolving loan funds is not program income and must be remitted to the U.S. Treasury at least annually); and  Funds collected through special assessments on properties not owned and occupied by LMI households in order to recover the CDBG portion of a public improvement. The County authorizes does not authorize the SubGrantee to retain Program Income to be used for eligible CDBG activities. If authorized, Program income may be used for the following purposes: N/A Reporting program income: Monthly, the SubGrantee must report to the County on the amount of Program Income received, less costs incidental to the generation of Program Income. Page 73 of 436 4 Any Program Income in excess of the amount of CDBG funds identified in Section i. Budget must be repaid to the County. i. Budget ITEM TOTAL BUDGET AMOUNT PAID BY COUNTY E3 Administration & Project Delivery, Including Lead Based Paint & Energy Audits $36,702 $19,000 Grants for Energy Efficiency $120,000 $96,000 TOTAL $156,702 $115,000 The amounts in each budget line item may be adjusted with the written approval of the County; provided, however, that the total amount of the award does not change. Retainage: Up to 5% of each draw may be retained to ensure that the work is completed satisfactorily. Retainage withheld will be paid within 60 days upon the completion and satisfactory inspection of the work. 3. DRAW REQUESTS Draw requests are due for each calendar month by the 20th day of the following month. Draw requests must include: a. Draw cover sheet showing itemized list of expenditures (HCDS form) b. Supporting documentation (check all that apply): Third-party invoices or receipts Check copies showing payment cashment (cancelled checks) Lien Waivers Davis-Bacon Certified Payrolls Federal Accountability and Transparency Act form (Attachment 1)* *Per the Federal Accountability and Transparency Act of 2006 as amended, compensation data for certain officials must be reported. The report form is attached herein as Attachment 1. This form must be submitted with the first draw request and updated if there are changes Site Specific Environmental Review checklists Note: Payments on draws submitted after May 20 may be delayed due to end-of-year HUD reporting 4. REPORTING Data collection must be completed demonstrating income eligibility and achievements met towards meeting the objectives described in Section 2 Activity Description. The disbursement of funds is contingent upon the receipt of the required information. Reports are due for each calendar month by the 20th day of the following month. Reports must include:  No. of beneficiaries served during the reporting period  Demographic information* for the individual served, or each household  Household income* (if applicable)  Brief narrative report on activities contained in Section 2 Page 74 of 436 5  Program Income *HCDS will provide a form for the collection of beneficiary income and demographic information; however, the SubGrantee may use its own form, or a form used for another fund source for the same program, provided that the following information is collected:  Unique identifier: Name and address  Whether the head of household is female and/or disabled  Whether the head of household is aged 62 years or older  Total number of household members  Total income of all household members  Ethnicity: Hispanic or Latino OR Not Hispanic or Latino of each household member  The race of each household member: White Black or African American Asian American Indian or Alaska Native Native Hawaiian or Other pacific Islander American Indian or Alaska Native and White Asian and White Black or African American and White American Indian or Alaska Native and Black or African American Other Multi-Racial NOTE: Both ethnicity AND race category must be selected for each household member  Signature attesting to the accuracy of the information submitted. 5. RECORD-KEEPING AND MONITORING SubGrantee shall retain on file the following documents for a period of five years beyond the final close- out of this grant. Files shall be made available to Arapahoe County, the Department of Housing and Urban Development, the Office of Inspector General, the General Accounting Office, or any other federal regulatory agency, upon request for monitoring purposes. Each property file must contain: 1. Agreement between County and Subrecipient 2. Draw Requests and supporting documentation (see Section 3 Draw Requests) 3. Annual audits 4. Homeowner application for assistance 5. Source documents used to determine income eligibility and income verification calculator print- out (if HUD income calculator is used) 6. Agreement between the SubRecipient and homeowner 7. Promissory Note and Deed of Trust, including any addenda, if applicable 8. Title check or copy of deed, documenting ownership of property 9. Site Specific environmental reviews approved by the County 10. EPLS check on contractor and subcontractors used 11. Copy of Flood Insurance Certificate or Policy, if property is located in a FEMA 100-year flood plan 12. Work write-up/scope of work 13. Documentation that the work was conducted per the approved rehab standards and the local jurisdiction’s housing codes 14. Copies of initial and final inspections and check-lists, performed by a licensed contractor Page 75 of 436 6 15. Lien waivers obtained for progress payments and final payment from all contractors and subcontractors 16. Beneficiary Data (see Section 4 Reporting) FFOORR CCOOUUNNTTYY UUSSEE OONNLLYY –– FFEEDDEERRAALL IIDDIISS RREEPPOORRTTIINNGG 1. Performance Goal: Create suitable living environments; Provide decent affordable housing; Create economic opportunities 2. Performance Outcome: Availability/Accessibility; Affordability; Sustainability 3. Check box if project address is to be marked as confidential 4. Activity Purpose: Prevent Homelessness; Help the Homeless; Help those with HIV/AIDS; Help persons with disabilities 5. Accomplishments to be reported at another activity: IDIS # 6. Activity being carried out by Grantee? yes; no If yes, activity is being carried out through: Employees; Contractors; Both 7. If Agreement is with another County department, the activity will be carried out by: County employees; Contractors; Both 8. Area Type: CDFO Area; Local Target Area; Strategy Area 9. Special Characteristics: Presidentially Declared major Disaster Area; Historic Preservation Area; Brownfield Redevelopment Area – indicate number of acres remediated: 10. Activity Information: One-for-One Replacement; Displacement; Favored Activity; Special Assessment; Revolving Fund; Float Funded Page 76 of 436 7 Attachment 1 Federal Funding Accountability and Transparency Act (FFATA) In accordance with Federal Acquisition Regulation Clause 52.204-10, reporting is required for awards of $25,000 or more. Information Field Definitions can be found on the reverse of this form. Response 1. Agency or Jurisdiction DUNS number: 2. Subrecipient name Receiving Award: 3. Subrecipient Parent DUNS number: (report if different from agency number above) 4. Location of Entity Receiving Award: (full street address) 5. Primary location of Performance of the Award: (City, State and Congressional District) Answer True or False (below) 6. In the preceding fiscal year, Contractor received: a.) $25,000,000 or more in annual gross revenues from federal procurement contracts/subcontracts and/or federal financial assistance awards or subawards subject to the Transparency Act. b.) 80% or more of its annual gross revenues from federal procurement contracts/subcontracts and/or federal financial assistance awards or subawards subject to the Transparency Act. c.) The public does not have access to information about the compensation of its five most highly compensated Executives through periodic reports filed through the Securities Exchange Act of 1934 or the IRS. An answer to question 7 is required ONLY when all answers to questions 6 are true. 7. Names and total compensation of the five (5) most highly compensated Executives for the preceding fiscal year: Print Name Compensation Amount ________________________________ ______________________________ ________________________________ ______________________________ ________________________________ ______________________________ ________________________________ ______________________________ ________________________________ ______________________________ By signing below, I certify the information contained in this report is complete and accurate to the best of my knowledge. ______________________________________________ _____________________________ City of Englewood 07-575-0133 1000 Englewood Pkwy Englewood, CO 8011-2373 Englewood, Colorado Congressional District #1 Arapahoe County Page 77 of 436 Page 78 of 436 Page 79 of 436 Page 80 of 436 Page 81 of 436 Page 82 of 436 Page 83 of 436 Page 84 of 436 .uu:_mE_.mEmaSE=_>>SE wmmu?m_oE .3En_m._woEwu._mEsowEo._uw.__:_uw._ m?.uw__ouE5wmmn?mu_mEm:.__me:5£52“:o_.m_nEou Uw_o.a wf ?at ___3 ._wmm_.:.._>_uum._o._n_w_._._. >OO..—ODOE,Hm=>_ZOFHUHAAOU<.—.<Q .._§_.a2cwgzc3:3E3ummmntam..3__u:m$55 .mEuE=uou_m_..Em=c:..:ozmu__nE< mumaom<.H<Q .mu_o:wm:9_ uo_2\3o._3.8gnaw>m..w:wEmu:wn.uu:_cm 3 _umu:uEEoum._mE2_€95 we:o:m_nEou 9:. ..—.Zm=>_m—~_Dw<H—>_HEOUHDO .uoo>>w_m:mwe35 m5 ._m_§£u2muo_Em mwEo._mmo?s&w_.:sowEo; mE3:_Bm._muoE_u:m26.39mEE_._._o>>>u:m_uEm$35 ucmcozmiwmcou 8:3:.2 Em._mmmu_>o._n .3HSOUHDO .. mwo_ouo£u_2 =o_.uu=oU Ema .u ou._=omSam .3 EuEu.=maoS_2.82:0 d uc_EoEammo....uEO3:O o_n_E:mmo2 :25 En .—....mmu..E.nM52.39:3 2:ma__u5 ma ._.u>._om 3:2.»_::..:o=u_.:_o._:952:.5m__3_.:oo._mm:_m=uo..Jo?__—=_b_==EE3 _.o::__u==n moEo8=ou_._.3._:m_..uE.uo_.o.E2:u=E_....3_.u>_.5:n=3+5 a oE>o._n_Page 85 of 436 \1OCHOOZH3 OCHOOEH§H>mCWH_SM2H U>.H>mocwnm U>._.>OOH.FHO.=OZ_sma:ouo..on< OCHOOKMkm OCHOOZH2=w>m:—~ESH2.—. U>A.>mocwnm Page 86 of 436 Page 87 of 436 0$6‘1'6S0S€'6$$0S'L'08E‘B‘S090IL E.wuma:2.:5ECU35 7.8:.»O.__En:=nm.83:53 :3 ===:::...::__.n..oo=BmaS. .=no=.n-n_.:._5n.._>..u_.u__oo02:5...emE2:m :3»:.=_.55....3.2:«Em u—Ee=._n_:.o..eR. mv.:.2=e_w.hos.res.2.2.3.:2o=.—.._<=coo...3-8,...2-3.x.v 8:. >2:>_<:>_<=>2: H a u 3:$8.;mama;Page 88 of 436 Page 89 of 436 _...&2:>n:<_J.o..1.53 _So==..<3... ma:2mama"§m<a.~oam 22.88Eonmma E_._m Noam _<_m1$::m_.§.m:nozm?zcoasooam ._::m I zo<m3cm_.~oam _3m2_ms::mmanm=m_E_:<_umnm_.3_:m:o:Eam NoamI.m:.._m«<~o~o 3;:~20:cmcan ._:_<NoamI >u_.__~o~o maans...>u..__mo.38 3033 <<m==..m=2.>n_n=zo3m_amncmR 3..mmmmnmznm<1:cm3%..3 3m <<m_z3m=3 o3 mm_,m7no3m. 3:323 cmW:3::._m23.3 8 P.onmmn_3._umm3..mnmm<m.__«33 En 9:33..>3 muu=nmzo3<3:cm no3u_mnmn_3 mun::o3moE3m_.33..o:mmmnmnommnm.3:..«<_m<<monE3m3:3mEa <m1w<_3mmun: muu_.nm33.mqommm33:m__3no..3m man.m=mE_m<<o_.x.335.>no3m:.:nzo3 mmn_.o..<mnnoci <5:cm mm~mc__m:mn_.3 man:mEu..o<m..._o<<3m...m3m=.m.>3 m3m_.n<2%<2:cm_.mn:__.mn_3..mun:muu=nm3n.30.. 3 23mmm...»2 no3mnEn:o3 3 n_mnm_.::3m Sm mama o?mnmmnmmnm3m..m<m3n_m3n<3mmn_.no3m:dn2o3 33%<<=_cmEmucama 8 23m3o_.3mo€3m..o_.no3:.mn8_.:33 03 amnm?nm3..Bmnmlmwmam_muo_. mxumammm. #5 :03 o<<3m_,u 1 .3 .3 _ :3.3 o 93 2::..3 m3 m<m3Qm3n<o2:m_1.o_.3mm ~33 _,mm__~mmm...<.3ma3:3 =m:_.m<3...2.m=3_u_.o<3..3"<3:3 _o3m_mmz3mman.m3no_.__.mmmm= _.mmEm3G 3 no3:3:m =3_uB<m_.3m3nc3 15:.923. >3 3833 <3:cm325 32 3 %.._.3a :..mmm2_nm u_.o<Emn__u<Sm >_.mum:omno:3n<s\mm3m_._~m:o3 U_<.m.o3.m u_.om_.m3.xmmm_.B_m<1:cm3mn_m 8 3m <<mm:.m_._~mzo3 Esau:3..mm_.<_.nmm.4Sm 333 muumma8n:m_:<5:3 2...:3333...._3no3m n.._Em=3mm. ._._3_m22.2.2.:no3:u_<<32.3m :3 no3mo_Em~ma ....mn_m_.m__.mm..._mmmmnP13"zmm:_m:o3:wmcmao3 mmEm3cm_.5.$3. 3.—...o<Eo«.3 82:338..::.n=3a 3..nc::._n:3n :3 —:.&on»9.13m=3 3:.«:2:was: 95¢. _.33 I >—=.=up ~33..=o__::=n..n_...<u.:._aa\_._Ea.Page 90 of 436 Page 91 of 436 19.Provide a detailed project budget (not organizational budget). Budget ltcms Description /Details CDBG Other Total Cost Source of Funds Secured UnsecuredRequestFundsFundsFunds Administration /Personnel dmin —Personnel Costs ‘Salariesandbenefits $10,180.0d_$17,702.0(f$27,882.0d City Budget $27,882.00 dmin-LBPTesting/Energy Audits ‘|:BPReport/Energy Audit Reports $8,820.00 $8,820.00 F J |_Operations Contract Services T‘ r F -0ProjectDelivery ‘GrantsforEnergy Efficiency 12 grants @ $3,000 each l $9a,ooo.od$24,ooo.oqs12o,ooo.odHomeowner Match $24,ooo| I‘ |TQT $115,000.0q$41,702.0q$156,702.00 %0F IOIAL 73%27%100%Page 92 of 436 Page 93 of 436 Page 94 of 436 Page 95 of 436 Page 96 of 436 Page 97 of 436 Page 98 of 436 Page 99 of 436 Page 100 of 436 Page 101 of 436 Page 102 of 436 Page 103 of 436 Page 104 of 436 Page 105 of 436 AZ Egg >:wn_=:n.:>u O_.m2:Nu:o=m_w.am..._ >zun_5.n_:mu wamaoo$8. >:mn_.=._n.:0”Fnoao m§n=._a_: >:mn_=:a3U”na_5o.<m88:._n_.: >:mn_.Em:~mu mB8:..n:.2 m_E_.o:oE2m.mn_==< >:uo_=:o.=T E:m:nE_>_.:.:.2::Zmzmmnani$2.... >.Bo_=:n_:Du >_.:o_nmom_:no€oE:o:wv._§<m >:uo_:.:o.:In Zo:.v3_.=Dn83.:=u:o:.37 m3:m n::._nu:o_._ >:un_.:._n.:7 25 >:mn_::n_:._”wom_.n_o:u:.no8_.m >:uo_=:Q:.0 Unmmmnuzoa%>.___§_~2_oaaa mmmz?onk_~omo_::o: >:mn_=:o.:r Oamniwmmoz0.5: >=un_:.:m.:in Newms:Wmmcanm >=mn_==n_:Z“m:.._u_ownnDonna.om__:n_.om~1o.:n< >§n_.=.:o_:O“_u_.oo_.=.n:._n:.3:3. >.Bn_:.:n=.P x&2...=§ >nmn_==n:_O”>mn:o<>E.:nu:o:_..o=:ea ca _:Srm won:3 0:9:mo_.<_nom >:mo_=:n:.F F.o.wnSmo_.<_nn>_.amEmu >amn_._=,_n=»mu $2.3 U::<.:mmea muoo=._om:o_._mc..:¢:n 3.2.5 ea ~:_._.mw:.:o.:_.$ >zmo_._.:n.:._.u OwE§_22%>mmomm_.=m=~ >§o_=:n:.C”rommo>m_.nn_=n=~ >=»n_.=.:n:.<u .3223 cm928: >:mn:3o_:E”>mn=8.m_.oo_=:omBE 22.3.5 Z_Bo1m_m >=mo_.==o:.X”_u..o.wno~_u_._o.om_.£u_.m >:mn_=_._n:»5 02.9.Wn_n<E.:_uon_.=:n_:m Page 106 of 436 Page 107 of 436 City of Englew cl,Colorado 2018 Budget Overview 2%2%2%1%1% 3»/..\ 6% 8% 7% 17% 15% General Fund Sources Amount %General Fund Uses Amount % Revenue Expenditure Sales 8 Use Taxes $27,922,380 60%5 Police Services $14,083,628 28“/'Charges for Services 2,939,487 6%'3‘Parks,Recreation &Library Services 7,609,755 17'’ 5‘Franchise Fees 3,294,000 7%City Manager's Office 7,133,210 15°5‘Property Tax 4,002,000 8%'Public Works 6,334,875 13" 'Cultural &Recreation Program Fees 2,844,600 6%'5'Finance &Administrative Services 1 494,052 3°'3 Intergovernmental Revenue 1,326,671 3%Community Development 2,644,501 6° Fines &Forfeitures 891,450 2%'3 lnforrnationTechnology 2,717,469 6°‘3 Speci?c Ownership &Cigarette Taxes 517,000 1%Debt Service 1,565,297 3°'Licenses &Permits 1,375,804 3%'3 Municipal Court 1,106,719 2'’ Component Units Contribution 1,548,000 3%5‘City Attorney's Of?ce 848,822 2%'Other 597,476 1%in Human Resources 771,274 2%5‘Interest 49,946 0%Communications _434,015 1% Total Revenue 47,308,814 Legislation-City Council &Boards 330,002 1% Contingencies 228,300 0%'3'Other Financing Sources 120,272 0%Total Expenditure 47,301,920 5‘Other Financing Uses 500,000 1%Total Sources of Funds $47,429,086 100%Total Uses of Funds $47,801,920 100% Net Sources (Uses)of Funds $(372,834) Estimated Fund Balance -January 1,2018 11,190,855 Estimated Fund Balance Before Reserves 10,818,021 Reserves (6,317,099)Estimated Unassigned Fund Balance -December 31,2018 $4,500,922Page 108 of 436 Page 109 of 436 Page 110 of 436 .32 .\.m 3 ..\..~.N $_..m :5 N .\.w mm .\.m.5 ..\........~ .\.$ .\....m #3 .>2:. newN3 8 mam2%v 3..:..nm. 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S5 8 $24“.\._ §.§.~Sm. 23 25.3 2.9:$2..Q35. 82.:E9 83.83.33 «$.33 §_§._$23..$3..§_§ 53.26 as 2 was mmmm 5.33 amms at: 838 oum._o_oo.uoQsm_m_._mB36 Page 117 of 436 City of Englew ,Colorado Proposed 2019 Budget Overview U 2%1%M 2%& 3% 8% 7% 15% 14% General Fund Sources Amount %General Fund Uses Amount %Revenue Expenditure Sales &Use Taxes $29,904,086 61%'3'Police Services $14,642,956 27%'Charges for Services 2,992,299 6%5‘Parks,Recreation &Library Services 7,899,809 15%'3'Franchise Fees 3,544,000 7%5‘City Managers Office 7,286,214 14%5'Property Tax 4,002,000 8%'PublicWorks 6,669,193 13%'Cultural &Recreation Program Fees 2,816,549 6%5‘Finance 8.AdministrativeServices 1,696,121 3%lntergovemmental Revenue 1,231,024 2%Community Development 2,525,060 5%Fines &Forfeitures 890,950 2%'5'Information Technology 3,367,836 6%'3'Speci?c Ownership &Cigarette Taxes 642,000 1%Debt Service 1,568,159 3%Licenses &Permits 1,329,743 3%5‘MunicipalCourt 1,154,896 2%Component Units Contribution 1,548,000 3%City Attorney's Office 914,043 2%'Other Income 518,457 1%:1 Human Resources 837,447 2%'3'Interest 59,946 0%Communications 486,312 1% n Legislation-CityCouncil &Boards 336,032 1% Contingencies 218,315 0%Total Revenue 49,479,054 Total Expenditure 49,602,392C’Other Financing Sources 123,599 0%'Other Financing Uses 3,100,000 6%Total Sources of Funds $49,602,653 100%Total Uses of Funds $52,702,392 100% Net Sources (Uses)of Funds $(3,099,739)Estimated Fund Balance -January 1,2019 15,241,922EstimatedFundBalanceBeforeReserves12,142,183Reserves(6,512,897)Estimated Unassigned Fund Balance -December 31,2019 $5,629,286 6 "/o ; 3% 13%Page 118 of 436 mR.~8hmm3.$E~_8~.m$_m2Bm.mmm.oo _m.o._.w_..E_._n___< -.--E5".m?ucummmo_Em «$.33Raaam;mm.....m$.»8o.~mu._.EusmmmcmsEm m8.w$...V3.23w$.moo.Fmagma;..._mEmum_mm.:mE E m_m._mo m3.~=.2m.3m.~eE.8¢.~_=m.Rm .2_.8_aum 83mumdmr8o.mm.mam.E,m3_2mm .250 Emma.m mm=EE..E :o.&E.£:mEE§omgm£o.EmEEmoms0mm?cmmwgom:mEtmQm_u35¢2>.u:mmw 3~:mEtmQ0bmzoAGbmh.SOgQmmpsgmmBmnoouuousuzmcu2:BaEzooummu::u_uu_>..um _m:._m«:_ «Nam:39$...:85?«$.33._o_§___.__£_3_m:_m:o: $38538..oowémm:~.m8 ___5 2228c n£.~S._.m2..mn~.~a8.8n.~28.89..om._:oo =00 «$.83835$38$33 m m:_m._n_ESE m8.mB..m~.8~.-2.2.85.m3.:m.v ._9som $w.8v.SSo.-m.2munommm..o~.$o.§§m>> .mmm.=B£m mmm:.B=a£W>.tQDu\m\..§m.52ME5b??mqo?tmbmucmtuw:o.em.mno.5.‘Ezooom mu.._:n_mm_._n..2:m wm._>._...._z:u_>m<.E_mn_om.. $19.?mR.o...m.$o8.m2vm~.oE.E:o_.o..:.m_._ooO:8__on_ mtmuu838.»e353...”Exam»m.uo.o._n__£_no snow?mmmdmoéo8.8~.v83$_.EmEm>o._E.2.25 .«mt:EE.Bm.....wmutebm.mtmEqoanon.:2:$5.:mm§u£_E?muBEE .6:o.a25m:ouBxucm:oEm.SuummammusommgEucmé3..Eaooum uou_o._..._.333 ~8.$m«.36.~.~8m.~o~.~..._.m.mBucom._o_.mm__._o.5259 G:ou__on_ ozxmv83:_.._.89.83BN5Eon Sam 30 _m.m:m0 antemm.:E£:mE3..nm?aeouw3%E392 5.5 .55.... .mQ2S_mQ.B=.:qEmu..Em..m:2.6EmE>.mubum=o.amSE:8mm5.3»Ezaouom wo_>._mw E38mmhvk39.3»$5.80 32_m cm 0 m~o.§.Sod83mwmdmv.mE._.:o_.me$m_Em ?an. $3.2So?aSo.»Swim_m_._._._..250 >235. 8o.Eomnwummwoé:33mm m...ocoo......_._uEo_m>mn__:=EEoo 2%_.mSoda835msx?u map co?z?coo .mmmoB:uumuxomqmgo...mssuzmqxm 8n2u.5mm:xsmmm‘EmE5mmugaom$29.9u?ummm*0mummuoimsheEaouommuss"._m_ounm 8_..~S..N_.~$.~2..~m...m....~8.$-m.:.~...:“Ea”._m._m_._m0 ?te.6£o:mE.‘uwuczooum$2 Omnmhaumgmmo? 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NEH Page 211 of 436 Page 212 of 436 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Tim Hoos DEPARTMENT: Public Works DATE: April 20, 2020 SUBJECT: Award of Contract to Dream Builders, Inc. for Construction of the Englewood Recreation Center Water Main, Fire Hydrant Assembly and ADA Ramp Installation DESCRIPTION: Award of Contract to Dream Builders, Inc. for Construction of the Englewood Recreation Center Water Main, Fire Hydrant Assembly and ADA Ramp Installation RECOMMENDATION: Staff recommends approving, by motion, a contract with Dream Builders, Inc. in the amount of $121,033.00 for the Englewood Recreation Center Fire Hydrant and Drainage Improvements with allowance for a 10% contingency in the amount of $12,103.00, to account for unknown circumstances that might be encountered on the project. This 10% contingency will only be utilized, if necessary, to account for items not already in the plans. PREVIOUS COUNCIL ACTION: N/A SUMMARY: The City issued an invitation for bids on February 20, 2020 and received six bids in response on March 19, 2020. The total bid from the low bidder, Dream Builders, Inc, was $11,620.30 less than the Engineer's Estimate. Dream Builders, Inc, has successfully performed similar work for other local municipalities in the past and staff feels that they will perform this work in accordance with the City's bid documents. Staff conducted reference checks and all returned favorable comments. ANALYSIS: This project will complete the following elements: • Installation of a new fire hydrant on along S Kalamath St. to the east of the Englewood Recreation Center to meet current fire code standards. • Installation of a new water main connection along S Kalamath St. to tie into the existing main under W Oxford Ave. This will provide a water line connection for the new fire hydrant as well as eliminate the dead end main that exists under S Kalamath St. • Installation of ADA ramps at the entrance of the Englewood Recreation Center. • Installation of a cross pan drain in the parking lot in front of the entrance to the Englewood Recreation Center in order to eliminate ponding water near the ADA parking spots. Page 213 of 436 • Replacement of broken and pot holed asphalt surrounding the ADA parking spots at the entrance of the Englewood Recreation Center. Bidding & Selection Process • Plans and specifications for this project were prepared by City staff. • Bids were solicited through a formal bidding process which was advertised on the Rocky Mountain BidNet site beginning on February 20, 2020. • Bids were opened and read publicly at 2:00 p.m. on March 19, 2020. • Six (6) bids were received. Project Schedule Per the contract terms, all work must be completed no later than 45 calendar days after the Notice to Proceed date. The Notice to Proceed is anticipated to be issued on or about April 28, 2020 which would result in a contract completion date of June 12, 2020. Project Communication A letter or post card will be mailed to all affected property owners in advance of the start of construction. This letter will be shared with City Council, via the weekly Council Update, at or around the same time as the letters are mailed to property owners. FINANCIAL IMPLICATIONS: Staff issued an Invitation to Bid (ITB) on February 20, 2020. Six bids were received on March 19, 2020 as summarized below. A detailed summary of the bid results is attached. Bidder Bid Amount Dream Builders, Inc. $121,033.00 Diaz Construction $149,465.00 Levi Contractors, Inc. $162,754.00 PEI $209,968.00 Hallmark, Inc. $266,471.00 Lobos Structures, LLC. $372,158.00 Engineer's Estimate $132,653.30 Amount under Engineer's Estimate $11,620.30 Dream Builder's total bid was approximately 9% less than the Engineer's Estimate amount. Approval of an additional 10% contingency to Dream Builders total bid is also recommended to account for unknowns that might be encountered on the project. This 10% will only be utilized, if necessary, to account for items not already in the plans. Dream Builders, Inc, Bid Amount $121,033.00 10% Contingency $12,103.30 Total Authorized Amount $133,136.30 The funding source is the Englewood Recreation Center (ERC) Upgrades project within the Public Improvements Fund. Page 214 of 436 ALTERNATIVES: An alternative would be to modify the amount of work being completed in order to expend less funds. This would result in fewer improvements being completed at one time. CONCLUSION: The bidding process resulted in a low bidder, Dream Builders, Inc, which was $11,620.30 less than the Engineer's Estimate. Based on previous work done for local municipalities and local land developers, staff is satisfied that they will perform satisfactorily. Staff verified references and all came back favorably. Staff recommends awarding a contract to Dream Builders in the amount of $121,033.00 for the ERC Water Main, Fire Hydrant Assembly and ADA Ramp Installation Project with an allowance for a 10% contingency, if needed. ATTACHMENTS: Contract Summary Form Dream Builders, Inc Contract Bid Tabulation 2019 ERC Project Plans Page 215 of 436 Contract Approval Summary 10/11/2019 Page | 1 Contact Identification Information (to be completed by the City Clerk) ID number: Authorizing Resolution/Ordinance: Recording Information: City Contact Information Staff Contact Person: Devin Keener Phone: (303) 913-8696 Title: Capital Projects Engineer Email: dkeener@englewoodco.gov Vendor Contact Information Vendor Name: Dream Builders Inc. Vendor Contact: Raul Martinez Vendor Address: 5940 W. Atlantic Drive Vendor Phone: (720) 345-2337 City: Lakewood Vendor Email: dbiinc19@gmail.com State: CO Zip Code: 80227 Contract Type Contract Type:Construction Agreement Description of Contract Work/Services: Attachments: ☒Contract -- ☐Original ☒Copy ☐Addendum(s) ☒Exhibit(s) ☐Certificate of Insurance Summary of Terms: Start Date: April 2020 End Date: June 2020 Total Years of Term: n/a Total Amount of Contract for term (or estimated amount if based on item pricing): $121,033.00 If Amended: Original Amount $ Amendment Amount $ Total as Amended: $ Renewal options available: Payment terms (please describe terms or attach schedule if based on deliverables): The City will pay Vendor for the work in accordance with the following payment schedule. This schedule will include monthly payments. Monthly payments will be made upon work completed and the approval of the invoice . Attachments: ☐Copy of original Contract if this is an amendment ☒Copies of related Contracts/Conveyances/Documents The City of Englewood will conduct its Englewood Recreation Center Water Main, Fire Hydrant Assembly and ADA Ramp Installation project. This contract will have the contractor perform demolition, site preparation, and the construction of a new water line, fire hydrant and assembly, ADA ramps, and concrete cross drain pan within the vicinity of the Englewood Recreation Center and S Kalamath St. Page 216 of 436 Contract Approval Summary 10/11/2019 Page | 2 Source of funds: Attachment (For Capital Items Only / Expense Line Item Detail is Located in Open Gov): ☐Prior Month-End Project Status and Fund Balance Report Process for Choosing Vendor: ☒Bid: ☐ Bid Evaluation Summary attached ☒ Bid Response of proposed awardee ☐RFP: ☐ RFP Evaluation Summary attached ☐ RFP Response of proposed awardee ☐Quotes: Copy of Quotes attached ☐Sole Source: Explain Need below ☐Other: Please describe The City issued an invitation to bid on February 20, 2020 and received six (6) bids in response on March 19th, 2020. The total from the lowest bidder, Dream Builders Inc, was $121,033.00 which was 9% less than City staff's estimate. Page 217 of 436 Pay Item #Description of Item Unit Quantity Cost Per Unit Total Cost of Item Cost Per Unit Total Variance%Cost Per Unit Total Variance%Cost Per Unit Total Variance%Cost Per Unit Total Variance%Cost Per Unit Total Variance%Cost Per Unit Total Variance% 01 Remove Shrubbery LS 1 $150.00 $150.00 $800.00 $800.00 433.33%$1,200.00 $1,200.00 700.00%$2,500.00 $2,500.00 1566.67%$675.00 $675.00 350.00%$1,610.00 $1,610.00 973.33%$500.00 $500.00 233.33% 02 Remove & Replace Concrete Curb & Gutter LF 87 $45.00 $3,915.00 $12.00 $1,044.00 -73.33%$70.00 $6,090.00 55.56%$88.00 $7,656.00 95.56%$62.00 $5,394.00 37.78%$140.00 $12,180.00 211.11%$110.00 $9,570.00 144.44% 03 Remove Concrete Sidewalks SQFT 835 $7.00 $5,845.00 $3.00 $2,505.00 -57.14%$4.00 $3,340.00 -42.86%$5.00 $4,175.00 -28.57%$1.00 $835.00 -85.71%$6.00 $5,010.00 -14.29%$2.00 $1,670.00 -71.43% 04 Remove Asphalt SQFT 2160 $7.00 $15,120.00 $2.25 $4,860.00 -67.86%$3.00 $6,480.00 -57.14%$5.00 $10,800.00 -28.57%$1.00 $2,160.00 -85.71%$4.00 $8,640.00 -42.86%$1.50 $3,240.00 -78.57% 05 Connect to Existing Water Main at W Oxford Ave EACH 1 $4,000.00 $4,000.00 $4,500.00 $4,500.00 12.50%$8,700.00 $8,700.00 117.50%$10,000.00 $10,000.00 150.00%$7,000.00 $7,000.00 75.00%$14,000.00 $14,000.00 250.00%$8,500.00 $8,500.00 112.50% 06 Furnish and Install 8" PVC Water Main LF 335 $68.00 $22,780.00 $69.00 $23,115.00 1.47%$92.00 $30,820.00 35.29%$165.00 $55,275.00 142.65%$108.00 $36,180.00 58.82%$116.00 $38,860.00 70.59%$95.00 $31,825.00 39.71% 07 Furnish and Install 6" Gate Valve EACH 1 $1,050.00 $1,050.00 $1,800.00 $1,800.00 71.43%$1,600.00 $1,600.00 52.38%$2,500.00 $2,500.00 138.10%$2,600.00 $2,600.00 147.62%$1,335.00 $1,335.00 27.14%$1,800.00 $1,800.00 71.43% 08 Furnish and Install 6" DIP Hydrant Lateral LF 35 $57.00 $1,995.00 $89.00 $3,115.00 56.14%$120.00 $4,200.00 110.53%$185.00 $6,475.00 224.56%$377.00 $13,195.00 561.40%$155.00 $5,425.00 171.93%$100.00 $3,500.00 75.44% 09 Furnish and Install Fire Hydrant Assembly with Kickblock EACH 1 $6,990.00 $6,990.00 $6,500.00 $6,500.00 -7.01%$6,400.00 $6,400.00 -8.44%$8,500.00 $8,500.00 21.60%$12,500.00 $12,500.00 78.83%$5,600.00 $5,600.00 -19.89%$100.00 $100.00 -98.57% 10 Install Temp Blow Off Assembly EACH 1 $1,250.00 $1,250.00 $1,200.00 $1,200.00 -4.00%$1,600.00 $1,600.00 28.00%$3,000.00 $3,000.00 140.00%$5,500.00 $5,500.00 340.00%$3,000.00 $3,000.00 140.00%$1,500.00 $1,500.00 20.00% 11 Chlorination and Pressure Test Water Main EACH 1 $1,000.00 $1,000.00 $750.00 $750.00 -25.00%$900.00 $900.00 -10.00%$3,500.00 $3,500.00 250.00%$7,400.00 $7,400.00 640.00%$3,275.00 $3,275.00 227.50%$1,500.00 $1,500.00 50.00% 12 Insert-A-Valve 8"EACH 1 $2,000.00 $2,000.00 $8,500.00 $8,500.00 325.00%$10,350.00 $10,350.00 417.50%$15,000.00 $15,000.00 650.00%$2,600.00 $2,600.00 30.00%$15,500.00 $15,500.00 675.00%$9,000.00 $9,000.00 350.00% 13 Connect to Existing Water Main under S Kalamath St EACH 1 $2,674.00 $2,674.00 $2,500.00 $2,500.00 -6.51%$3,800.00 $3,800.00 42.11%$6,850.00 $6,850.00 156.17%$3,500.00 $3,500.00 30.89%$7,000.00 $7,000.00 161.78%$2,500.00 $2,500.00 -6.51% 14 Flow Fill CY 50 $110.00 $5,500.00 $190.00 $9,500.00 72.73%$150.00 $7,500.00 36.36%$280.00 $14,000.00 154.55%$172.00 $8,600.00 56.36%$165.00 $8,250.00 50.00%$125.00 $6,250.00 13.64% 15 Temporary Asphalt Patching SQFT 450 $5.00 $2,250.00 $4.00 $1,800.00 -20.00%$3.00 $1,350.00 -40.00%$20.00 $9,000.00 300.00%$5.00 $2,250.00 0.00%$10.00 $4,500.00 100.00%$5.00 $2,250.00 0.00% 16 Asphalt Trench Patching SQFT 1,450 $5.00 $7,250.00 $6.00 $8,700.00 20.00%$11.00 $15,950.00 120.00%$14.00 $20,300.00 180.00%$12.00 $17,400.00 140.00%$11.00 $15,950.00 120.00%$10.00 $14,500.00 100.00% 17 Install ADA Compliant Sidewalks and Ramps SQFT 598 $13.00 $7,774.00 $18.00 $10,764.00 38.46%$20.00 $11,960.00 53.85%$26.00 $15,548.00 100.00%$13.00 $7,774.00 0.00%$14.00 $8,372.00 7.69%$19.00 $11,362.00 46.15% 18 Install Concrete Drainage Cross Pan, 8"SQFT 322 $24.00 $7,728.00 $22.00 $7,084.00 -8.33%$16.00 $5,152.00 -33.33%$22.00 $7,084.00 -8.33%$18.00 $5,796.00 -25.00%$18.00 $5,796.00 -25.00%$30.00 $9,660.00 25.00% 19 Asphalt Replacement Tie In SQFT 390 $5.00 $1,950.00 $9.00 $3,510.00 80.00%$12.00 $4,680.00 140.00%$18.00 $7,020.00 260.00%$7.00 $2,730.00 40.00%$13.00 $5,070.00 160.00%$10.00 $3,900.00 100.00% 20 Repaint Lines/Symbols LS 1 $500.00 $500.00 $1,200.00 $1,200.00 140.00%$1,500.00 $1,500.00 200.00%$6,670.00 $6,670.00 1234.00%$7,000.00 $7,000.00 1300.00%$1,265.00 $1,265.00 153.00%$2,000.00 $2,000.00 300.00% 21 Topsoil 6"CY 4 $250.00 $1,000.00 $65.00 $260.00 -74.00%$150.00 $600.00 -40.00%$250.00 $1,000.00 0.00%$200.00 $800.00 -20.00%$140.00 $560.00 -44.00%$200.00 $800.00 -20.00% 22 Sodding SQFT 234 $3.00 $702.00 $5.00 $1,170.00 66.67%$3.00 $702.00 0.00%$6.50 $1,521.00 116.67%$3.00 $702.00 0.00%$5.00 $1,170.00 66.67%$7.00 $1,638.00 133.33% 23 Install Detectable Warning Systems SQFT 48 $35.00 $1,680.00 $22.00 $1,056.00 -37.14%$35.00 $1,680.00 0.00%$58.00 $2,784.00 65.71%$35.00 $1,680.00 0.00%$50.00 $2,400.00 42.86%$25.00 $1,200.00 -28.57% 24 Remove and Reinstall ADA Handicap Parking Signs EACH 6 $150.00 $900.00 $150.00 $900.00 0.00%$200.00 $1,200.00 33.33%$500.00 $3,000.00 233.33%$200.00 $1,200.00 33.33%$300.00 $1,800.00 100.00%$200.00 $1,200.00 33.33% 25 Traffic Control & Protection LS 1 $5,000.00 $5,000.00 $1,200.00 $1,200.00 -76.00%$6,800.00 $6,800.00 36.00%$70,000.00 $70,000.00 1300.00%$60,000.00 $60,000.00 1100.00%$12,700.00 $12,700.00 154.00%$3,500.00 $3,500.00 -30.00% 26 Erosion and Sediment Control LS 1 $500.00 $500.00 $800.00 $800.00 60.00%$1,400.00 $1,400.00 180.00%$8,000.00 $8,000.00 1500.00%$1,000.00 $1,000.00 100.00%$1,200.00 $1,200.00 140.00%$1,000.00 $1,000.00 100.00% 27 Mobilization LS 1 $11,150.30 $11,150.30 $1,900.00 $1,900.00 -82.96%$6,800.00 $6,800.00 -39.02%$60,000.00 $60,000.00 438.10%$40,000.00 $40,000.00 258.73%$9,500.00 $9,500.00 -14.80%$5,000.00 $5,000.00 -55.16% 28 Minor Contract Revisions EACH 10,000 $1.00 $10,000.00 $1.00 $10,000.00 0.00%$1.00 $10,000.00 0.00%$1.00 $10,000.00 0.00%$1.00 $10,000.00 0.00%$1.00 $10,000.00 0.00%$1.00 $10,000.00 0.00% $132,653.30 $121,033.00 $162,754.00 $372,158.00 $266,471.00 $209,968.00 $149,465.00 P.E.I Diaz Construction Englewood Recreation Center Water Main, Fire Hydrant Assembly and ADA Ramp Installation CONSTRUCTION COSTS Dream Builders, Inc. (Low Bid)Engineer's Estimate Levi Contractors, Inc.Lobos Structures, LLC.Hallmark, Inc.Page 218 of 436 Page 219 of 436 Page 220 of 436 Page 221 of 436 Page 222 of 436 Page 223 of 436 Page 224 of 436 Page 225 of 436 TYPICAL TRENCH SECTIONPLAN, PROFILE & LOCATION FOR FIRE HYDRANTS, MAINS & VALVESTEMPORARY BLOWOFF INSTALLATIONPage 226 of 436 CONCRETE KICKBLOCKS BEARING SURFACES & INSTALLATION LENGTH OF RESTRAINED PIPEPOLYETHYLENE WRAP ON PIPE & TAP INSTALLATION VALVE OPERATIONPage 227 of 436 Page 228 of 436 Page 229 of 436 Page 230 of 436 D - i GENERAL CONDITIONS OF THE CONTRACT TABLE OF CONTENTS Article 1. DEFINITIONS AND INTERPRETATION ............................................................................... 1 1.1 Definitions .............................................................................................................................. 1 1.2 References .............................................................................................................................. 4 1.3 Intention of Terms ................................................................................................................. 4 1.4 Computation of Time ............................................................................................................. 4 1.5 Abbreviations ......................................................................................................................... 4 1.6 Interpretation ......................................................................................................................... 5 Article 2. PRELIMINARY MATTERS ................................................................................................. 6 2.1 Performance of the Work ...................................................................................................... 6 2.2 Notice to Proceed .................................................................................................................. 6 2.3 Authority of the City Manager ............................................................................................... 6 2.4 Plans and Specifications ......................................................................................................... 6 2.5 Special Work........................................................................................................................... 6 2.6 Pre-Construction Meeting ...................................................................................................... 6 2.7 Contractor’s Understanding of Work ..................................................................................... 7 2.8 Contractor’s Representation .................................................................................................. 7 2.9 Other Work ............................................................................................................................ 7 2.10 Notices ................................................................................................................................... 7 2.11 Contractor’s Signs .................................................................................................................. 7 2.12 Publicity and Advertising ........................................................................................................ 7 Article 3. PAYMENTS ..................................................................................................................... 7 3.1 Measurement of Work Performed ........................................................................................ 7 3.2 Payments to Contractor and Completion .............................................................................. 7 3.3 Appropriate of Funds ........................................................................................................... 12 3.4 Payment for Increased or Decreased Quantities ................................................................. 12 3.5 Payment for Omitted Items ................................................................................................. 12 3.6 Extra and Force Account Work ............................................................................................ 12 3.7 Partial Payments .................................................................................................................. 13 3.8 Taxes / Direct Purchase Option ............................................................................................ 13 3.9 Liens ..................................................................................................................................... 14 3.10 Deductions ........................................................................................................................... 15 Article 4. COMPLETION, TIME and DELAYS IN CONSTRUCTION .................................................... 15 4.1 Delays ................................................................................................................................... 15 4.2 Construction Schedule ......................................................................................................... 15 4.3 Subcontracting or Assigning of Contract .............................................................................. 16 4.4 Commencement of Work ..................................................................................................... 16 4.5 Limitation of Operations ...................................................................................................... 16 4.6 Progress Schedule ................................................................................................................ 16 4.7 Character of Workman and Equipment ............................................................................... 17 4.8 Suspension of Work ............................................................................................................. 17 4.9 Suspension of Work for City’s Convenience ........................................................................ 18 4.10 Suspension of Work Due to Order of City, County, State or Federal Court or Agency ........ 18 4.11 Suspension of Work Resulting from Contractor’s Failure to Perform ................................. 18 Page 231 of 436 D - ii 4.12 Contract Time ....................................................................................................................... 18 4.13 Liquidated Damages ............................................................................................................. 19 4.14 Adjustment for Suspended Work ......................................................................................... 20 4.15 Termination of Contract ....................................................................................................... 20 4.16 Termination for Cause .......................................................................................................... 20 4.17 Termination for Convenience of Owner .............................................................................. 21 4.18 Cooperation with Other Contractors ................................................................................... 23 4.19 Terminating of Contractor’s Responsibility ......................................................................... 24 Article 5. PROJECT AND CONSTRUCTION MANAGEMENT ............................................................. 24 5.1 Authority of Project Engineer or Project Manager .............................................................. 24 5.2 Communications .................................................................................................................. 24 5.3 Supervision ........................................................................................................................... 24 5.4 Contractor Performance ...................................................................................................... 25 5.5 Work Performed Under Adverse Weather Conditions ........................................................ 25 5.6 Use of Materials Found on the Work Site ............................................................................ 25 5.7 Final Cleaning Up .................................................................................................................. 25 5.8 Surveys ................................................................................................................................. 25 5.9 Lines and Grades .................................................................................................................. 26 5.10 Value Engineering ................................................................................................................ 26 5.11 Sanitary Regulations ............................................................................................................. 26 5.12 Staging and Storage ............................................................................................................. 26 5.13 Salvage ................................................................................................................................. 27 5.14 Materials and Equipment Furnished by the Contractor ...................................................... 27 5.15 Substitution of Materials and Equipment ............................................................................ 27 5.16 Cutting and Patching ............................................................................................................ 28 5.17 Samples and Testing ............................................................................................................. 28 5.18 Property Rights in Materials ................................................................................................ 29 Article 6. CHANGES IN THE WORK ............................................................................................... 29 6.1 Changes and Increased or Decreased Quantities of Work .................................................. 29 6.2 Adjustments to Contract Price ............................................................................................. 35 6.3 Omitted Items ...................................................................................................................... 37 6.4 Work Not Specified But Included ......................................................................................... 37 6.5 Extra Work – Force Account ................................................................................................. 37 6.6 Unauthorized Work .............................................................................................................. 37 Article 7. SUBCONTRCTORS, SUPPLIERS AND PERSONNEL ........................................................... 37 7.1 Subcontractor ....................................................................................................................... 37 7.2 Workforce ............................................................................................................................ 38 7.3 Illegal Aliens as Laborers ...................................................................................................... 38 7.4 Personnel & Civil Rights ....................................................................................................... 39 Article 8. INSPECTIONS; CORRECTION OF DEFECTS ...................................................................... 40 8.1 Defective Work and Materials ............................................................................................. 40 8.2 Substituted Performance ..................................................................................................... 40 8.3 Authority and Duties of Inspectors ...................................................................................... 41 8.4 Inspection ............................................................................................................................. 41 8.5 Removal of Defective and Unauthorized Work ................................................................... 42 8.6 Geotechnical and Other Design Professional Reports, Investigations & Tests .................... 42 Article 9. PROTECTION OF PERSONS, PROPERTY AND ENVIRONMENT ......................................... 43 9.1 Protection of Persons ........................................................................................................... 43 Page 232 of 436 D - iii 9.2 Protection of Property ......................................................................................................... 43 9.3 Protection of Historical Sites ................................................................................................ 44 9.4 Responsibility to Repair ....................................................................................................... 44 9.5 Traffic Control ...................................................................................................................... 44 9.6 Protection of Street Signs, Traffic Signs and Signals ............................................................ 45 9.7 Utilities ................................................................................................................................. 45 9.8 Coordination with Englewood Utilities ................................................................................ 46 9.9 Notification of Affected Utility and Property Owners ......................................................... 46 9.10 Pollution Control .................................................................................................................. 45 9.11 Public Convenience and Safety ............................................................................................ 47 9.12 Use of Explosives .................................................................................................................. 47 9.13 Restoration of Property ....................................................................................................... 47 Article 10. PERMITS AND LICENSES; COMPLIANCE WITH CURRENT LAWS ...................................... 48 10.1 Compliance with Laws, Licenses and Permits ...................................................................... 48 Article 11. BONDS ......................................................................................................................... 48 11.1 Bonds .................................................................................................................................... 48 Article 12. WARRANTY .................................................................................................................. 49 12.1 Scope of Warranty ............................................................................................................... 49 12.2 Owners Right to Correct ....................................................................................................... 49 12.3 Warranty Period ................................................................................................................... 50 12.4 Performance During Warranty Period ................................................................................. 50 Article 13. INSURANCE; RISK OF LOSS ............................................................................................ 50 13.1 General Requirements ......................................................................................................... 50 13.2 Required Policies and Limits ................................................................................................ 51 13.3 Terms of Insurance ............................................................................................................... 52 Article 14. INDEMNIFICATION ....................................................................................................... 53 14.1 Contractor to City ................................................................................................................. 53 14.2 Owner to Contractor ............................................................................................................ 53 14.3 No Personal Liability of the Project Engineer or Project Manager ...................................... 53 14.4 No Waiver of Legal Rights .................................................................................................... 53 Article 15. DEFAULTS, REMEDIES AND TERMINATION .................................................................... 54 15.1 Notice of Disputes and Objections ....................................................................................... 54 15.2 Negotiations of Disputes ...................................................................................................... 55 15.3 Decision ................................................................................................................................ 55 15.4 Waiver .................................................................................................................................. 55 15.5 Contractor’s Remedies ......................................................................................................... 55 15.6 Owner’s Remedies ............................................................................................................... 55 15.7 Owner’s Special Remedy for Delay ...................................................................................... 56 15.8 Attorney’s Fees .................................................................................................................... 56 Article 16. INDEPENDENT CONTRACTOR ........................................................................................ 56 Article 17. DISPOSAL; HAZARDOUS SUBSTANCES .......................................................................... 56 17.1 Removal and Disposal of Structures and Obstructions ........................................................ 56 17.2 Cleaning Up and Restorations .............................................................................................. 56 17.3 Removal of Condemned Materials and Work ...................................................................... 57 17.4 Pests & Vector Control ......................................................................................................... 57 Page 233 of 436 D - iv 17.5 Hazardous Substances ......................................................................................................... 57 17.6 Existing Facilities – Hazardous Substances May Exist .......................................................... 57 17.7 No Introduction of Hazardous Substances .......................................................................... 57 17.8 Suspected Hazardous Substances ........................................................................................ 57 17.9 Ordinary Course Materials ................................................................................................... 57 Article 18. ROYALTIES AND PATENTS ............................................................................................. 58 18.1 Patents and Copyrights ........................................................................................................ 58 Article 19. DRAWINGS, DETAIL AND INSTRUCTIONS ...................................................................... 58 19.1 Drawings and Specifications ................................................................................................ 58 19.2 Copies of Drawings and Specifications Furnished ................................................................ 59 19.3 Utilities ................................................................................................................................. 59 19.4 Requests for Clarification and Information .......................................................................... 59 19.5 Dimensions ........................................................................................................................... 59 19.6 Shop Drawings ...................................................................................................................... 59 19.7 Record Documents ............................................................................................................... 60 19.8 Operating Manuals and Parks Lists ...................................................................................... 61 19.9 Conformity With Plans and Allowable Deviations ............................................................... 61 19.10 Coordination of Specifications, Plans and Special Provisions .............................................. 61 19.11 Ownership to Work Product ................................................................................................ 61 Article 20. RIGHT-OF-WAY ............................................................................................................. 61 20.1 Acquisition of Right-of-Way ................................................................................................. 61 20.2 Access to Right-of-Way ........................................................................................................ 61 20.3 Rights-of-Way ....................................................................................................................... 61 Article 21. SUBMITTALS ................................................................................................................. 62 21.1 Schedule of Submittals ......................................................................................................... 62 21.2 Scope of Engineer’s Reviews ................................................................................................ 62 21.3 Review Process ..................................................................................................................... 62 Article 22. NOTICES ....................................................................................................................... 62 Article 23. OWNER’S GENERAL RESPONSIBILITIES .......................................................................... 62 23.1 Owner Performance ............................................................................................................. 62 23.2 Project Engineer or Project Manager ................................................................................... 63 23.3 Right to Bar Persons From the Work or Site ........................................................................ 63 23.4 Access to Work ..................................................................................................................... 63 23.5 Inspection ............................................................................................................................. 63 Article 24. CONCEALED CONDITIONS ............................................................................................. 63 24.1 Discovery of Concealed Physical Conditions ........................................................................ 63 24.2 Inspection and Drawing Update .......................................................................................... 63 24.3 Delays ................................................................................................................................... 63 24.4 Change Order ....................................................................................................................... 64 24.5 Costs ..................................................................................................................................... 64 Article 25. WAIVER ........................................................................................................................ 64 25.1 Waiver .................................................................................................................................. 64 25.2 No Waiver ............................................................................................................................ 64 Article 26. OTHER CONDITIONS ..................................................................................................... 64 Page 234 of 436 D - v 26.1 Binding Contract ................................................................................................................... 64 26.2 Legislative of Judicial Decisions ............................................................................................ 64 26.3 Superseding .......................................................................................................................... 64 26.4 Professional Standards ......................................................................................................... 64 26.5 Notification in Writing .......................................................................................................... 64 26.6 Headings for Reference Only ............................................................................................... 65 26.7 One Instrument .................................................................................................................... 65 26.8 Third Party Claims ................................................................................................................ 65 26.9 Calendar Days ....................................................................................................................... 65 26.10 Written Consent ................................................................................................................... 65 26.11 Reallocation of Resources .................................................................................................... 65 26.12 Disclosure of Confidential Information ................................................................................ 65 26.13 Audit ..................................................................................................................................... 65 26.14 Federal Aid Provisions .......................................................................................................... 65 26.15 Duties & Remedies ............................................................................................................... 66 26.16 Survival ................................................................................................................................. 66 26.17 Government Immunity ......................................................................................................... 66 26.18 Construction ......................................................................................................................... 66 26.19 No Implied Representations ................................................................................................ 66 26.20 Financial Obligations of the City .......................................................................................... 66 26.21 Assignment/Transference .................................................................................................... 66 26.22 Amendments ........................................................................................................................ 66 26.23 No Third-Party Beneficiaries ................................................................................................ 66 26.24 Independent Contract – No Partnership or Agency ............................................................. 66 26.25 Governing Law, Jurisdiction, Venue ..................................................................................... 66 26.26 Attorney’s Fees and Costs .................................................................................................... 66 Page 235 of 436 1 Article 1. DEFINITIONS AND INTERPRETATION 1.1 DEFINITIONS: Whenever the following terms or pronouns are used in the Specifications and Contract Documents, the intent and meaning shall be as follows Terms defined in the Agreement or other Contract Documents, and not defined within this Article, shall have the meaning given them in the Document where defined. 1) ADDENDA: Written changes to the Bid Documents issued before the opening of Bids that clarify, correct, or change the Contract or change the date set for the Opening of Bids. 2) AMENDMENT: A change to the original contract which sets forth additional work which is new, and is outside the scope of the original contract and/or proposal. Such Amendment may require additional funding and bonding, and will require approval in accordance with the Owner’s purchasing policy. 3) BID: The offer or proposal of the Bidder submitted on the prescribed forms setting forth the prices for the Work to be performed. 4) BIDDER: The individual or entity who submits a Bid directly to Owner. 5) BID SECURITY: The security, as designated in the “Instructions to Bidders” furnished with the Bid by the Bidder as a guarantee that the Bidder will enter into the Contract and Furnish Bond(s) as required if the work be awarded to such Bidder. 6) BONDS: Bid, performance, payment and material bonds, any warranty bond, or other instruments of security furnished by the Contractor and its Surety to the Owner according to the Contract. 7) CHANGE ORDER: A written order to the Contractor, signed by the Project Engineer, on behalf of Owner, ordering a change that has been found necessary in the Work from that originally shown in the Plans and Specifications but which is still within the general scope of the Contract. If the Work is of a nature involving an adjustment of unit prices, a Supplemental Agreement shall be executed. A change order set forth upon a change order form generated by Owner, and signed by both Owner and Contractor, authorizes modifications to the existing contract documents. 8) COMPLETION DATE: The date the Contract specifies the Work is to be completed. 9) CONSTRUCTION SCHEDULE: The schedule of Work approved by Owner in accordance with the Contract Documents. 10) CONTRACT OR CONTRACT DOCUMENTS: The written Agreement executed between the Owner and the successful Bidder (“Contractor”), covering the performance of the Work and the furnishing of labor and materials, which binds the Contractor to perform the Work and furnish the labor and materials and by which the Owner is obligated to provide compensation at a mutually established and accepted rate or price. The Contract shall include Contract Agreement, Request for Bid, Bidder’s response (“Bid”), Bid Bond, Performance Bond, Payment Bond, Material Bond, Notice of Award and Notice to Proceed, Final Acceptance and Warranty Initiation, Final Receipt, Notice of End of Basic Warranty Period, Special Provisions, General Provisions, Statements of Work, Technical Specifications, Plans, Specifications, Drawings and Addenda or Change Orders, and any and all Supplemental Agreements which may be subsequently entered into to complete the Work in an acceptable manner in accordance with the Plans and Specifications. 11) CONTRACT PRICE: The total monies payable to the Contractor under the terms and conditions of the Contract. 12) CONTRACT TIME: The number of days provided in the Contract for the completion of the Project from the date of the Notice to Proceed through and including the date of Final Acceptance. The Contract Documents may require completion on or before a certain specified date. 13) CONTRACTOR: The successful bidder, who may be an individual, partnership, firm, or corporation, who executes the Contract, acting directly or through lawful agents or employees, primarily liable for the acceptable performance of the Work for which contracted, and for the payment of all legal debts pertaining to the Work. 14) CRITICAL PATH: a sequence of project tasks that add up to the longest project duration. If any tasks on the critical path experience delays, the overall project schedule must be extended. 15) DATE OF CONTRACT (“Effective Date of Contract”): The execution date in the Agreement for a Construction Contract unless otherwise specified. 16) DAY: A calendar day of twenty-four hours, from midnight to midnight, unless otherwise specified herein. Page 236 of 436 2 17) DRAWINGS: The part of the Contract Documents prepared or approved by the Project Engineer which graphically shows the scope, extent, and character of the Work to be performed by Contractor, including plans, profiles, typical cross-sections, general cross-sections, elevations, schedules, and details which show locations, character, dimensions, and details of the Work. Shop drawings and other Contractor submittals are not Drawings as so defined. 18) E-VERIFY: (formerly known as the Basic Pilot/Employment Eligibility Verification Program) An internet based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees. 19) ENGINEER (“Project Engineer”): The Owner’s designated, authorized representative assigned to the Project. The Project Engineer may have day-to-day responsibility for managing the Contract, or may designate in writing a Project Manager to provide day-to-day responsibility for managing the Contract. 20) EQUIPMENT: All machinery, together with the necessary supplies for upkeep and maintenance, and all tools and apparatus necessary for the proper construction and acceptable completion of the Work. 21) EXTRA WORK: Work not provided for in the Contract as awarded but found to be essential to the satisfactory completion of the Contract, within its intended scope. 22) FIELD ORDER: A written order effecting minor change in the Work not involving an adjustment in the Contract Price or an extension of the Contract Time, issued by the Project Engineer to the Contractor during construction. 23) FINAL ACCEPTANCE: An acknowledgment made by the Owner that all Work, as defined in Paragraph 59 herein, has been completed. The Owner’s final acceptance of the Work completed according to the Contract requirements with all parts of the Work in good condition and in working order, including completion of all punch list items, cleanup work, and delivery of all required guarantees, warranties, licenses, releases, and other deliverables. 24) FINAL PAYMENT: The final and complete payment to the Contractor in accordance with the Contract Documents. 25) FORCE ACCOUNT: A method of payment, other than lump sum or unit price, for Work ordered by a Change Order. 26) INSPECTOR: An authorized designee of the Engineer or Project Manager, assigned to make all necessary inspection of the Work performed or being performed, or of the materials furnished or being furnished by the Contractor. 27) LABORATORY: The official testing laboratories of the Owner or such other laboratories as may be designated by the Project Engineer. 28) NOTICE OF AWARD: A written notice to the successful Bidder stating their Bid has been accepted and that, in accordance with the terms of the notice to Contractors and the Specifications, such Bidder is required to execute the Contract and furnish satisfactory Bonds. 29) NOTICE OF FINAL ACCEPTANCE: The written notice of the date, as certified by the Owner, of Final Acceptance. 30) NOTICE TO PROCEED: A written notice given by Owner to Contractor fixing the date upon which the Contract Times will commence to run and on which Contractor shall start to perform the Work under the Contract Documents. 31) NOTICE OF SUBSTANTIAL COMPLETION: The written notice of the date, as certified by the Owner, of Substantial Completion. 32) NOTICE OF TERMINATION: Written notice from the Owner to the Contractor to stop Work under the Contract on the date and to the extent specified in the Notice of Termination. 33) OWNER (“City”): The City of Englewood, Colorado. 34) PARTIES: The Owner and the Contractor. 35) PAYMENT BOND: The approved form of security furnished by the Contractor and the Contractor’s surety as a guarantee to pay in full all bills and accounts for materials and labor used in the construction of the Work, as provided by law. 36) PERFORMANCE BOND: The approved form of security furnished by the Contractor and the Contractor’s surety as a guarantee of good faith and ability on the part of the Contractor to Page 237 of 436 3 execute the Work in accordance with the terms of the Plans, Specifications, and Contract. In lieu of a separate Performance Bond, a combination Performance, Labor and Material Payment Bond may be supplied by the Contractor. 37) PERFORMANCE, LABOR AND MATERIAL PAYMENT BOND: Security furnished by the Contractor and his surety as a guarantee to pay in full all bills and accounts for materials and labor used in the Work and to execute the Work in accordance with the Contract. 38) PLANS: The official Plans, working drawings, or supplemental drawings or exact reproductions thereof, approved by the Project Engineer which show the locations, character, dimensions, and details of the Work to be done and which are to be considered part of the Contract, supplementary to these Specifications. 39) PROGRESS SCHEDULE: A construction schedule prepared by the Contractor in a bar- chart, critical path or other format acceptable to the Engineer which includes the start and completion dates of all salient features of the Work as specified in Paragraph 41 hereof. 40) PROJECT: The total construction of which the Work to be provided under the Contract Documents may be the whole or a part as indicated elsewhere in the Contract Documents, and may include construction by other contractors. 41) PROJECT MANAGER: A representative of Owner authorized in writing by the Project Engineer/Engineer, and reporting to the Project Engineer/Engineer, to oversee the Project through day-to-day responsibility for managing the Contract. 42) PROPOSAL: The written offer of the Proposer, when submitted on the approved Proposal form, to perform the contemplated Work and furnish the necessary materials in accordance with the provisions of the Plans and Specifications. 43) BID BOND: The security, as designated in the Request for Bids to guarantee the Bidder will accept the Work under the terms set forth within the Bid Documents and Bid Response if the Work is awarded to such Bidder. 44) BIDDER: Any individual, firm, or corporation, submitting a Proposal or Bid for the Work contemplated within the Bid Documents... 45) REASONABLY PREDICTABLE WEATHER DELAYS: Estimated Weather Day(s) where critical path activities cannot be performed in any month, within contract weather or temperature limitations, or due to weather related conditions. 46) SHOP DRAWINGS: All drawings, diagrams, illustrations, brochures, schedules and other data which are prepared by the Contractor, a subcontractor, manufacturer, supplier, or distributor, which illustrate how specific portions of the Work shall be fabricated or installed. 47) SPECIAL PROVISIONS: Specific clauses setting forth conditions or requirements particular to the Project as set forth in the Proposal, which are not stipulated in the General Provisions or Technical Specifications. 48) SPECIFICATIONS: A part of the Contract Documents consisting of written technical descriptions of materials, equipment, construction systems, standards, and workmanship. The directions, provisions, and requirements contained therein, and which may be supplemented by Special Provisions, pertaining to the method and manner of performing the Work, or to the quantities or the qualities of materials to be furnished under the Contract. 49) STRUCTURES: Bridges, culverts, sewers, catch basins, retaining walls, manholes, headwalls, buildings, valve vaults and other features which may be encountered or included in the Work and not otherwise classified herein. 50) SUBCONTRACTOR: Any person or entity having a subcontract with the Contractor (or any Subcontractor, of any tier, whether or not authorized by the Contractor) to furnish and perform work at the Work site, including the provision of labor, materials, equipment, supplies, tools, services, or any combination of these. This definition shall not limit the Contractor’s obligations, or alter any Subcontractor’s rights, under any law or contract. 51) SUBSTANTIAL COMPLETION: The date on which the Work has progressed to the point that the Owner can beneficially occupy or utilize the Work for the purpose for which it is intended, and the Work complies with all applicable codes and regulations, including, if required, issuance of a certificate of occupancy, or certificate of suitability for use from the appropriate governmental agencies, as determined by the Owner in its sole discretion 52) SUPERINTENDENT: The executive representative for the Contractor who is present on the Work at all times, authorized to receive and fulfill instructions from the Engineer or Project Manager Page 238 of 436 4 and capable of supervising the Work efficiently. 53) SUPPLEMENTAL AGREEMENT: A written Proposal and Agreement, including Amendments, executed by the Contractor and by the Owner, with increased bonding from the surety if such agreement results in an increase in the total contract amount, covering Work not included in the Plans and Proposal or as specified in Section 1.3 which is necessary to for the proper completion of the Project. A supplemental agreement includes addendums to the original agreement, amendments to the original agreement, or change orders if such change order modifies a cost or price agreed to within the original agreement. 54) SUPPLIER: Any person or organization who supplies materials or equipment for the Work, including that fabricated to a special design, but who does not perform labor at the site. This definition shall not limit the Contractor’s obligations, or alter any Supplier’s rights, under any law or contract. 55) SURETY: The corporate body or individuals who are bound by the Bid Bond, Performance Bond and the Payment Bond or the Performance, Labor and Material Payment Bond, with and for the Contractor and which engage to be responsible for the entire and satisfactory fulfillment of the Contract and for the payment of all debts incurred in fulfilling the Contract. 56) UNIT PRICE: An amount stated in the Proposal as a price per unit of measurement for materials or services as described in the Contract. Unit Prices are intended to cover all items of work to be done and materials to be furnished to fully complete the Work in accordance with the Contract Documents (including without limitation the cost of appurtenant items of work, labor, materials, fees, bond costs, supplies, utilities, royalties, tools, forms and equipment, and all other costs (including without limitation sales and use tax, insurance, licenses, permits, profit, and other overhead) not listed separately, not shown on the Plans and Specifications, or not specified but necessary to complete the Work in accordance with the Contract Documents). 57) WEATHER DAY: Any day on which Work is scheduled in the Construction Schedule but cannot be performed within contract weather or temperature limitations or due to weather related soil conditions, and where work on critical activities cannot be performed for more than fifty percent (50%) of the work day, including any day immediately following a Weather Day on which subsequent day Work was scheduled in the Construction Schedule but cannot be performed on scheduled critical path activities due to weather related site or soil conditions for more than fifty percent (50%) of the day (drying days). 58) WORK: The term "Work" shall be understood to mean the furnishing of all labor, materials, equipment, and other incidentals necessary or convenient to the successful completion of the Project and the carrying out of all the duties and obligations imposed by the Contract. 1.2 REFERENCES: Words describing materials or Work having a well-known technical or trade meaning in an industry, unless otherwise specifically defined, shall be construed in according to well-known meanings as recognized by engineers, architects, and the trades. All references to standard specifications, methods of testing materials, codes, practices, and requirements refer to the edition of each in effect on the date of the Request for Bids unless a specific edition or revision is referenced. 1.3 INTENTION OF TERMS: Any reference to a paragraph or subparagraph within a section shall include the general provision of the section or sections and paragraph pertinent thereto. 1.4 COMPUTATION OF TIME: Any period of time referred to in the Contract Documents will be computed as consecutive calendar days. 1.5 ABBREVIATIONS: When the following abbreviations appear in the documents, they are defined as follows: AASHTO American Association of State Highway and Transportation Officials ACI American Concrete Institute ACPA American Concrete Pipe Association AGC Associated General Contractors of America, Inc. AIA American Institute of Architects AIEE American Institute of Electrical Engineers AISC American Institute of Steel Construction ANSI American National Standards Institute APHA American Public Health Association APWA American Public Works Association ASA American Standards Association ASCE American Society of Civil Engineers ASME American Society of Mechanical Engineers ASTM American Society for Testing and Materials Page 239 of 436 5 AWS American Welding Society AWSC American Welding Society Code AWWA American Water Works Association CDOT Colorado Department of Transportation CPM Critical Path Method COE City of Englewood DHS U.S. Department of Homeland Security EPA U.S. Environmental Protection Agency EWD Englewood Water Department GESC Grading, Erosion and Sediment Control IEEE Institute of Electrical and Electronic Engineers MUTCD Manual on Uniform Traffic Control Devices NBS National Bureau of Standards NCPI National Clay Pipe Institute NEC National Electric Code NEMA National Electrical Manufacturer’s Association OSHA Occupational Safety & Health Administration RCRA Resource Conservation and Recovery Act SAME Society of American Military Engineers SPWRP South Platte Water Renewal Partners SAVE Systematic Alien Verification or Entitlement program WW-P Federal Specifications Prefix 1.6 INTERPRETATION 1.6.1 Whenever, in these Specifications, or upon the Plans, or within the Contract Documents the words "directed," "required," "permitted," "ordered," "designated," "prescribed," or words of like import, are used, it shall be understood that the direction, requirement, permission, order, designation, or prescription of the Engineer or Project Manager is intended; and similarly, the words "approved," "acceptable," "satisfactory," or words of like import shall mean approved by, or acceptable to or satisfactory to the Engineer or Project Manager, unless otherwise expressly stated, subject in each case to the final determination of the Owner. 1.6.2 “Including” shall, unless otherwise specifically stated, mean including, but not limited to. 1.6.3 Words such as “hereby,” “herein,” and “hereunder” and words of similar import shall be construed to refer to the Agreement in its entirety and the General Conditions of the Contract, subject to the provisions of the Agreement relating to resolution of differences between terms of different Contract Documents. 1.6.4 Where otherwise consistent with the context, the singular shall include the plural and the plural shall include the singular. 1.6.5 The titles of articles and sections used in the Agreement and these General Conditions of the Contract are primarily for the convenience of the reader but may be used as aids in interpreting any provision herein. If any of the provisions of the exhibits attached to the Agreement hereto or of any of the Contract Documents are inconsistent with the provisions of the Agreement, the provisions of the Agreement shall control. 1.6.6 Any references to “days” in any Contract Documents refer to calendar days. Any references in any Contract Documents or any communications between Owner and Contractor to “business days” refer to days when Owner’s administrative offices are open for the regular conduct of business. 1.6.7 When “furnish,” “install,” “perform,” or “provide” is not used in connection with services, materials, or equipment in a context clearly requiring an obligation of Contractor, “provide” is implied. 1.6.8 Unless stated otherwise in the Contract Documents, words or phrases which have a well-known technical or construction industry or trade meaning are used in the Contract Documents in accordance with such recognized meaning. Page 240 of 436 6 Article 2. PRELIMINARY MATTERS 2.1 DELIVERY OF BONDS AND EVIDENCE OF INSURANCE. When Contractor delivers the executed counterparts of the Contract to Owner, Contractor shall also deliver to Owner such bonds as Contractor may be required to furnish. Before any Work at the Site is started, Contractor and Owners shall each deliver to the other, with copies to each additional insured identified in the Article 13 below, certificates of insurance (and other evidence of insurance with either of them or any additional insured may reasonably request) which Contract and Owner respectively are required to purchase and maintain in accordance with Article 13 below. 2.2 NOTICE TO PROCEED: Owner will give the Contractor written Notice to Proceed with the Work after execution of the Contract by the Owner. The Contractor shall begin the Work by the date stated in the Notice to Proceed and diligently pursue the Work regularly and without interruption (unless otherwise directed in writing by the Engineer or Project Manager) with the work force necessary to complete the Work and achieve Substantial Completion within the Contract Time. The Contract Times will commence to run on the thirtieth day after the Effective Date of the Contract if no Notice to Proceed is provided. If any milestones are described in the Contract Documents or the approved Construction Schedule, the Work described by each milestone shall be accomplished on or before that milestone in accordance with the Contract Documents. 2.3 AUTHORITY OF THE PUBLIC WORKS DIRECTOR: The Project Engineer shall be the representative of the Owner in all matters concerning the Contract and the work to be performed thereunder, except the Public Works Director of the Owner shall have the authority to terminate the Contract as elsewhere herein provided. The Public Works Director shall make the final decision on all questions as to acceptable fulfillment of the Contract should a dispute between the Contractor and the Project Engineer occur. 2.4 PLANS AND SPECIFICATIONS: It is agreed by the parties hereto that the following list of instruments, drawings and documents which are attached or incorporated by reference constitute and shall be referred to either as the Contract Documents or the Contract and all of said instruments, drawings, and documents taken together as a whole constitute the Contract between the parties hereto and they are as fully a part of this agreement as if they were set out verbatim and in full:  Invitation to Bid and Supporting Documents  Contract (this instrument), including all Exhibits, Schedules, Attachments, and Specifications.  All Proposal Response Documents  Certificate of Insurance The Contractor shall perform all items of Work covered and stipulated in the Specifications, Proposal, Contract and Special Provisions, together with any authorized alterations, Extra Work and Supplemental Agreements, all in accordance with the Plans. The Contractor shall furnish, unless otherwise provided in the Specifications and/or Special Provisions, all materials, implements, machinery, equipment, tools, supplies, transportation and labor necessary to perform and complete the Work. The Contractor shall be responsible for taking all steps reasonably necessary to ascertain the nature and location of the Work, and the general and local conditions which can affect the Work or the cost of the work. Failure by the Contractor to do so will not relieve it from responsibility for successfully performing Work without additional expense to Owner. The Owner will not be responsible for any understanding or representations concerning conditions, unless such understanding or representations are expressly stated in the Contract. 2.5 SPECIAL WORK: Should any construction or conditions which are not thoroughly stipulated or set forth by the plans and specifications be anticipated on any proposed Project, Special Provisions for such Work may be prepared and attached hereto as Exhibit C, and shall be considered as part of the Specifications, the same as though contained fully therein. Should any Special Provision conflict with the Specifications, the Special Provision will govern. 2.6 PRE-CONSTRUCTION MEETING: Before any Work at the Site is started, a conference attended by the Project Engineer, Project Manager, Contractor, and others as appropriate, will be held to establish a working understanding among the parties as to the Work and to discuss the schedules for progress, milestones, and completion of Work, procedures for handling Shop Drawings, and other submittals, processing Applications for Payment, and maintaining required records. The Contractor may be asked to provide specific information as to labor, tools, supplies, equipment, materials and everything necessary for and required to do, perform and complete all the work described, drawn, set forth, shown and included in said Contract Documents. At this conference Owner and Contractor each shall designate, in writing, a specific individual to act as its representative with respect to the services and responsibilities under the Contract. Such individuals shall have the authority to transmit instructions, receive information, render decisions relative to the Contract, and otherwise act on behalf of each respective party. Page 241 of 436 7 2.7 CONTRACTOR’S UNDERSTANDING OF WORK The Contractor agrees that by careful examination it is satisfied as to the nature and location of the Work, 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 Work, the general and local conditions, and all other matters, which can in any way affect the Work under the Contract. No oral agreement with any officer, agent, or employee of the Owner either before or after the execution of the Contract shall affect or change any of the terms or obligations contained in the Contract. 2.8 CONTRACTOR’S REPRESENTATION: The Contractor represents and warrants that it has the knowledge, ability, experience, and expertise to perform the Work competently in accordance with the Contract Documents. The Contractor represents and warrants the capacity of the Contractor's construction plant, personnel, and its ability to complete the Work by the Completion Date. 2.9 OTHER WORK: The Owner reserves the right to award other contracts in connection with the Project or other activities. The Contractor must be prepared to accept the presence, on or adjacent to the construction site, of work forces of other contractors, subcontractors, tenants, government agencies and municipal, public service or utility personnel. The Contractor shall cooperate with and afford other contractors reasonable opportunity for the introduction and storage of their materials and the execution of their Work, and shall coordinate its Work with theirs. If it becomes impossible to proceed with the Work in a manner that permits all activities to progress at a reasonable pace, the Project Engineer, or Project Manager, will select the course of action that appears to best serve the Owner. 2.10 NOTICES: Except for routine communications, written notices required under this Contract and all other correspondence between the Parties will be deemed received when hand-delivered or three (3) days after being sent by certified mail, return receipt requested (unless the Parties consent to electronic delivery). The address in the Proposal will be the Contractor’s address for the delivery of notices, unless modified by the Contractor by written notice at least three (3) business days prior to the change. Notices to the Owner shall be delivered to the Project Engineer, except as provided in the Contract Documents. 2.11 CONTRACTOR’S SIGNS: No signs with Contractor’s name, logo, telephone number, address or, (etc.), shall be placed on any pole, road, structure or other surface, unless approved in writing, and in advance of such placement, by the City. 2.12 PUBLICITY AND ADVERTISING: Neither the Contractor nor its Subcontractors or Suppliers shall include any reference to the Contract nor to Work performed hereunder in any advertising or public relations materials without first obtaining the written approval of the Project Engineer. All information shall be factual, and shall in no way imply that the Owner endorses the Contractor or its services or product. The Owner shall have the right to photograph, videotape, film or in any other manner record the progress of the Work at any time and to use such materials for any purpose. Article 3. PAYMENTS 3.1 MEASUREMENT OF WORK PERFORMED: The determination of the amount of Work acceptably completed under the terms of the Contract, or as directed by the Project Engineer, or Project Manager, in writing, will be made by the Project Engineer, or Project Manager, based on measurements taken by him or his agents. These measurements will be taken according to the United States standard measure. All surface and linear measurements will be taken horizontally unless otherwise shown on Plans or specified. Structures shall be measured to the neat lines as shown on the Plans, or as ordered in writing by the Project Manager. Other acceptable methods could include noting a percentage completed or referencing the project schedule by milestone. 3.2 PAYMENTS TO CONTRACTOR AND COMPLETION 3.2.1 General - Unless expressly provided otherwise, the Unit Prices shown in the Contractor’s Proposal include the cost of all labor, materials, supplies, equipment, tools, forms, services, utilities, royalties, fees, taxes, profit, overhead, and any other thing or expense, whether temporary or permanent, necessary to complete the Project in accordance with the Contract Documents. Items not shown on the Contract Documents that are necessary to construct the Project will be considered a part of the Project whether specified or not and no separate payment will be made for these items. 3.2.2 Determination of Amounts and Quantities – The Project Engineer, or Project Manager, or his or her designee shall verify determinations of amounts and quantities of Work performed. The method of measurement of pay items subject to Unit Prices will be as specified in the Special Conditions. 3.2.3 Monthly Estimates & Progress Payments a) Before Work commences, Owner and Contractor shall designate a day of the month by which Page 242 of 436 8 Invoices for Payment shall be due. On or before such day of each month after the Construction Work has commenced (but not earlier than the first day of such month), Owner shall submit to Contractor a “Periodic Estimate for Partial Payment” based on the Schedule of Values, and such other materials and information as may be required by the Agreement. No “Periodic Estimate for Partial Payment” except the Application for Final Payment shall be made for an amount less than $1,000.00. b) The Contractor shall submit signed estimates for progress payments on a monthly basis based on “Periodic Estimate for Partial Payment” for all Work completed to date. Estimates shall be prepared by the Owner no later than ten (10) days after the end of the month for Work subject to the application. Estimates shall be produced in a format reflecting the line items for which payment is requested according to the Unit Price Form in the Proposal and any applicable Change Order, shall be dated as of the actual date of submittal (or revised submittal, as applicable), and shall reflect the Work completed and the date to which Work has been completed. The Contractor will provide support documentation for all estimates, as requested. c) Each Periodic Estimate for Partial Payment shall constitute a representation and warranty of Contractor (whether or not specifically stated) that Contractor is not in default hereunder, the amounts requested in the Periodic Estimate for Partial Payment are due hereunder, after payment of the amounts requested in the Periodic Estimate for Partial Payment, the amount remaining to be paid under the Contract is sufficient to pay for the balance of the Work, the Work performed to date is in accordance with that contemplated by the Milestone Schedule (or specifying the portions thereof that are not), Contractor has no claims hereunder and has no request for changes in the Milestone Schedule or the Contract Sum not provided for in the Periodic Estimate for Partial Payment. Each Periodic Estimate for Partial Payment shall further constitute the representation and warranty of Contractor (whether or not specifically stated) that the percentage of the Work represented to have been done in each category provided on the Schedule of Values has, in fact, been completed as of the last day of the period for which such Periodic Estimate for Partial Payment has been submitted. The period covered by an Periodic Estimate for Partial Payment shall end not earlier than ten (10) days before the due date for the Periodic Estimate for Partial Payment, unless Contractor and Owner agree otherwise in writing. d) Each Periodic Estimate for Partial Payment shall set forth the status of all Proposed Changes, Change Directives, and Change Orders. e) Contractor shall promptly submit such additional information and documents as Owner or Project Professionals may reasonably request in support of the Periodic Estimate for Partial Payment. f) The signature on each application is a representation by the Contractor to the Owner that the Work has progressed to the point indicated, that the Work covered by the application is in accordance with the Contract Documents, that the money received as a result of the application will be used to discharge the Contractor’s obligations under the Contract, and that the Contractor is entitled to payment in the amount requested. g) By signing a Periodic Estimate for Partial Payment, the Contractor warrants that: (i) the title to the Work covered by the estimate of Work completed will pass to the Owner by incorporation into the completed Work; (ii) the Work covered by previous estimates of Work completed 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 estimate of Work completed is subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller or otherwise imposed by the Contractor or any other person or entity. h) The Contractor shall provide notice and reason, to the subcontractor or supplier and the Owner, why the subcontractor or supplier is not being paid. The Contractor shall not include in its Periodic Estimate for Partial Payment 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. i) Applications may include the value of acceptable materials required in the construction which have been delivered on the site of the Work or to adjacent railway siding and for which acceptable provisions have been made for preservation and storage, providing the Contractor submits with its monthly estimate paid invoices in duplicate for the material for which payment is being requested. Material paid for by the Owner becomes the property of the Owner and, in the event of the default on the part of the Contractor, the Owner may use or cause to be used such materials in construction of the Work provided for in the Contract. Page 243 of 436 9 j) The authorized Owner representative(s) must approve the applications and estimates before progress payments will be made. The Owner will make payments within thirty (30) days after the receipt of a signed monthly estimate in proper form containing all required and requested information. Progress payments are payments on accounts and shall not be construed as acceptance by the Owner of any part of the Work. k) All progress payments, except for the Final Payment, shall be subject to correction on subsequent applications after the discovery of any error. Approval of an application for payment of Work completed or actual payment by the Owner shall not foreclose the right of the Owner to examine the books and records of the Contractor to determine the correctness and accuracy of any item. l) The Contractor shall make partial payments of the amount due and payable to each of its Subcontractors and Suppliers in the same manner as the Owner is required to pay the Contractor under this article. This provision shall not create any privity of contract between the Owner and any Subcontractor or Supplier, or make any Subcontractor or Supplier a third- party beneficiary of this Contract. 3.2.4 Retainage & Withheld Amounts a) The Owner will retain five percent (5%) of the total amount earned, including Change Orders, as indicated in each approved application until Final Payment. Securities are not acceptable to the Owner in lieu of retainage. b) If the Owner finds that satisfactory progress is being made in all phases of the Contract and work is more than 80% complete, it may, upon written request by the Contractor, authorize payment from the withheld percentage. Before such payment is made, the Owner shall determine that satisfactory and substantial reasons exist for the payment and shall require written approval from any Surety furnishing the Payment Bond or Performance Bond. c) The Owner may withhold, in addition to retained percentages from Contractor payments, such an amount or amounts from any progress payment or Final Payment as may be necessary to cover:  Claims for labor or materials furnished the Contractor or any Subcontractor or reasonable evidence indicating probable filing of such claims;  Failure of Contractor to carry out the Work in accordance with the Contract Documents  Failure of the Contractor to make proper payment to Subcontractors or Suppliers;  A reasonable doubt that the Contract can be completed for the balance then unpaid;  Evidence of damage to another contractor, utility, or private property;  Claims filed in connection with the Work or reasonable evidence indicating probable filing of claims.  Uncorrected defective Work or guarantees that have not been met;  Failure of the Contractor to submit cost breakdowns, schedules, reports and other information required under the Contract;  Persistent failure to carry out the Work according to the Contract;  Failure to keep a superintendent on the Site during Construction Work.  Reasonable evidence that the Work will not be completed within the Contract Time and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay;  Any tax delinquency, unpaid fee, or other unpaid financial obligation of the Contractor owed to the Owner;  Any request that the Owner pay additional compensation to another contractor as a result of delays in the performance of that contractor’s work caused by the Contractor’s acts or omissions; and  Any other amounts that the Owner is authorized to withhold under the Contract Documents. If the reason for withholding is removed, the Owner will make payment of the withheld sums with the next regular progress payment unless another basis for withholding exists d) Execution of the Contract by the Contractor shall constitute a waiver by the Contractor to claim any right of payment of interest upon any funds retained or withheld by the Owner pursuant to these General Conditions or C.R.S. § 38-26-107. 3.2.5 Substantial Completion a) When the Contractor considers the entire work ready for its intended use, the Contractor shall Page 244 of 436 10 notify the Project Engineer, or Project Manager, in writing that the entire Work is substantially complete, except for minor items specifically listed by Contractor as incomplete (the Contractor’s punch list), and request that the Project Engineer, or Project Manager, issue a Notice of Substantial Completion. b) Within seven (7) days after the receipt of such notice, the Contractor, Engineer, or Project Manager and any other appropriate Owner representatives shall inspect the Work to determine the status of completion and the Contractor’s punch list.  If the Project Engineer, or Project Manager, does not consider the Work substantially complete, the inspection will cease and the Project Engineer, or Project Manager, will notify the Contractor in writing giving the reasons for denial of the Notice of Substantial Completion and the Contractor will proceed with the Work. All costs associated with such premature inspection, including any compensation for additional design services and the Owner’s additional costs, shall be deducted from any payment due to the Contractor.  If the Project Engineer, or Project Manager, considers the Work substantially complete, the Project Engineer, or Project Manager, will prepare and deliver to the contractor a Notice of Substantial Completion. The Project Engineer, or Project Manager, shall attach to the notice a punch list of items to be completed or corrected before Final Acceptance. Failure to include any items on the punch list shall not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. 3.2.6 Right of Early Occupancy or Use a) The Owner shall have the right to take early possession of and to use any completed or partially completed portions of the Work, even if Substantial Completion of the Work has not occurred and even if the Work has not been fully accepted. Such possession and early occupancy shall not constitute Substantial Completion of such portions of the Work nor affect the Owner’s right to assess liquidated damages. b) If the Owner elects to take possession of and to use any completed or partially completed portions of the Work prior to Substantial Completion, an inspection shall be made by the Contractor and the Project Engineer, or Project Manager. Based upon such inspection, the Project Engineer, or Project Manager, will attempt to list all incomplete Work items observed, and shall provide the Contractor with such list. However, the absence of an item from the list shall not relieve the Contractor of responsibility to perform all of the Work. Any and all areas so occupied will be subject to a final inspection prior to Final Acceptance and the issuance of Certificate of Occupancy, if required. c) At the time of such inspection, the Parties shall also negotiate the responsibilities of the Owner and the Contractor for security, maintenance, heat, utilities, property insurance premiums, and damage to the Work. These negotiations are subject to the final approval of the Owner. d) If the Contractor believes there will be an additional cost or delay associated with completion of the Work while the Owner occupies the Work in whole or in part under this section, the Contractor shall advise the Project Engineer, or Project Manager, by Contractor Change Request of all such costs and delays at or before the time of such inspection. If the Contractor fails or refuses to furnish such cost or delay information, or fails or refuses to comply with the Contractor Change Request procedure, the Contractor shall be deemed to have waived any and all rights to assert any claim for such additional cost or delay. 3.2.7 Final Acceptance a) When the Work specified in the Contract (including all punch list items) is completed and the final cleanup has been performed, the Contractor shall notify the Project Engineer, or Project Manager, that all Work under the Contract has been completed and the Project Engineer, or Project Manager, shall, within seven (7) days after such notice, make the final inspection. b) If the Project Engineer, or Project Manager, finds that the Project has been completed according to the Contract requirements and that all parts of the Work are in good condition and in working order, the Owner, upon the recommendation of the Project Engineer, or Project Manager, shall issue a written Notice of Final Acceptance. Any Notice of Final Acceptance issued orally or without proper Owner authorization is void. c) If the Project Engineer, or Project Manager, finds that the Project has not been completed according to the Contract requirements and that not all parts of the Work are in good condition and in working order, the Project Engineer, or Project Manager, shall compile a punch list of corrective or replacement Work to be completed by the Contractor and Contract obligations yet to be satisfied that the Contractor shall complete or fulfill to the Project Page 245 of 436 11 Engineer, or Project Manager’s satisfaction, at the Contractor’s expense, as a condition precedent to the issuance of a Notice of Final Acceptance. 3.2.8 Final Settlement & Final Payment a) After Final Acceptance, the Project Engineer, Contractor, or other person designated by the Owner, as appropriate, will prepare a final estimate of the total value of all Work performed under the Contract. This will include all extra Work properly authorized and performed. All prior estimates and payments shall be subject to correction in the final estimate and payment. In the absence of error or fraud, all estimates, when approved by the Owner, shall be conclusive evidence of the Work performed and materials furnished. b) The Owner shall not authorize final payment until all items on the punch list have been completed, a Notice of Final Acceptance is issued, and the Notice of Final Settlement has been published. If the Work is substantially completed, but Final Acceptance is prevented by the unavailability of materials, or other causes beyond the control of the Contractor, and if consistent with any applicable bond, the Owner, in its sole discretion, may release to the Contractor all amounts due except for a retainage of two (2) times the cost of completing the unfinished Work as estimated by the Owner. c) Before the Owner will advertise final settlement, the Contractor shall demonstrate to the operating personnel of the Owner the proper operation and maintenance of all equipment and systems, and deliver to the Project Engineer, or Project Manager:  All guarantees and warranties;  Bound sets of required operations and maintenance manuals and instructions as required by the Contract Documents;  Record Documents required by the Contract Documents;  Satisfactory evidence that all payroll, material bills, taxes, and other indebtedness connected with the Work have been paid or otherwise satisfied;  A complete and final, unconditional waiver or release of any and all lien and claim rights from each Subcontractor, materialman, Supplier, manufacturer, and dealer for all labor, equipment and material used or furnished by each on the Work;  Consent of the Surety to final payment;  All submittals required by the Contract Documents; and  Any other documents required to be furnished by the Contract Documents d) The Work shall be advertised (Notice of Contractor’s Settlement) in accordance with C.R.S. § 38-26-107. This statute governs the maintenance and enforcement of claims for payment against the Project by Subcontractors, Suppliers and certain others. Final payment and settlement shall be made only after the Contractor has completed the foregoing requirements, and the Owner is satisfied that no claims by Subcontractors or Suppliers have been filed or remain pending. e) If any unpaid claim for labor, materials, rental machinery, tools, supplies, or equipment is filed prior to the date set for final settlement, the Owner shall withhold from payments to the Contractor sufficient funds to ensure the payment of such claim, until the same shall have been paid or withdrawn. Such payment or withdrawal shall be evidenced by filing with the Project Engineer, or Project Manager, an unconditional receipt in full or an order for withdrawal signed by the claimant or its duly authorized agent or assignee. The Owner will withhold from payment any funds it may be required by law to withhold or that it may in the determination of the Owner be entitled to withhold, and final payment will not be made until, in the sole determination of the Owner, all conditions of the Contract and of law have been met. f) If there are outstanding claims against the Contractor or its Subcontractors or for any other reason the Contractor is not able to fulfill one or more of the requirements of this section, the Owner may, at its sole discretion, waive the requirement, provided the Surety agrees to the Owner making final settlement without in any way lessening or modifying the Surety’s liability under such Bonds. g) If any overpayment was made by the Owner at any time, the Contractor shall immediately return all overpaid amounts. h) At the time of settlement, there shall be deducted from the final estimate (i) all previous payments made to the Contractor under the Contract, (ii) all amounts chargeable to the Contractor, (iii) all liquidated damages due the Owner; (iv) all unpaid taxes due and payable to the Owner; and (v) all damages and all other costs, expenses and charges properly chargeable to the Contractor under the terms of the Contract. Page 246 of 436 12 i) Subject to delays allowed by Colorado law and these General Conditions, the Owner shall make Final Payment after Final Acceptance, including the release of all retainage and withheld amounts, except as authorized by the Contract Documents. Final Payment shall constitute complete payment for all Work, labor, materials, equipment, and miscellaneous items in the Project. j) At the time of delivery to the Contractor of the final payment, the Contractor shall execute and give to the Owner a final receipt for the same. k) The acceptance of final payment shall constitute a waiver of all Claims by the Contractor except those previously made in accordance with these General Conditions which have been separately identified by the Contractor as unsettled in the final payment application, and which the Owner agrees in writing may be set over for resolution after final payment. l) All provisions of these Contract Documents, including without limitation those establishing obligations and procedures, shall remain in full force and effect notwithstanding the making or acceptance of final payment. 3.3 APPROPRIATION OF FUNDS: At present, the amount set forth in the Contract has been appropriated for the project. Notwithstanding anything contained in this Agreement to the contrary, the parties understand and acknowledge that each party is subject to Article X, § 20 of the Colorado Constitution (“TABOR”). The parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, notwithstanding anything in the Contract to the contrary, all payment obligations of the Owner are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the Owner’s current fiscal period ending upon the next succeeding December 31. Financial obligations of the Owner payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of the Owner and applicable law. Upon the failure to appropriate such funds, the Contract shall be deemed terminated. The Owner shall immediately notify the Contractor or its assignee of such occurrence in the event of such termination. 3.4 PAYMENT FOR INCREASED OR DECREASED QUANTITIES: When alterations in the Plans or quantities of Work not requiring Supplemental Agreements, as provided for above, are ordered and performed, the Contractor shall accept payment in full at the Contract unit price for the actual quantities of Work done. No allowance will be made for lost profits. Increased or decreased Work involving Supplemental Agreements will be paid for as stipulated in such agreements. 3.5 PAYMENT FOR OMITTED ITEMS: For any item omitted from the work under the provisions of Section 1.5, the Owner will pay the Contractor a fair and equitable amount for costs incurred directly related to such item prior to the date of the Owner's order to omit the item. No allowance will be made for lost profits in reimbursements to the Contractor for omitted items of Work. Acceptable materials ordered by the Contractor or delivered to the Work site prior to the date of cancellation, alteration, or suspension of the Work by order of the Project Engineer, or Project Manager, will be paid for at the actual cost to the Contractor and shall thereupon become the property of the Owner. The Contractor shall immediately submit certified statements covering all money expended in preparation for any omitted item, and he shall be reimbursed for any money expended in preparation for Work on any omitted item when such preparation has no value to the remaining items of the Contract, or for a proportionate amount based on the total Contract price over which such preparation would ordinarily be distributed when other items are included in such preparation. 3.6 EXTRA AND FORCE ACCOUNT WORK: Extra Work, for which no price is provided in the Proposal, shall be covered by a Supplemental Agreement which could be an addendum (additional work requested), amendment (change the terms of the agreement, or change order (change the specifications of original work) to be signed by both parties before such Work is commenced. Extra Work will be paid for either at a lump sum, or unit prices agreed upon, or on a Force Account basis. For all labor, teams, and foremen in direct charge of the specific operations accomplished on a Force Account basis, the Contractor shall receive the current local rate of wage, to be agreed upon before starting the Work, to which shall be added fifteen (15) percent of the sum thereof to cover cost of supervision, the rental of small tools and ordinary equipment, additional Bond, Unemployment Insurance, all overhead and any other costs not specifically stated. In addition, the Contractor shall be paid a sum equal to the Worker's Compensation insurance premium, the actual costs of Social Security taxes computed on the base rate for the class of Work involved for the actual amount of the payroll, and the public liability and property damage insurance premium; provided, however, that nothing in this Section will change the legal status of the relationship between the Parties to this Agreement. For all materials furnished and used by the Contractor on a Force Account basis, he shall receive the actual cost of such materials, including transportation charges as shown by original receipted bills, to which shall be added fifteen (15) percent of said actual cost. Page 247 of 436 13 For machine power tools or equipment, including fuel and lubricant, used on Force Account Work, payment for the same will be made on a rental basis at the rate agreed upon between the Contractor and the Project Engineer, or Project Manager, to which no rate or percentage shall be added. The compensation as herein provided shall be received by the Contractor as payment for Extra Work done on a Force Account basis. The Contractor shall make no claim for Force Account Work, unless performed on written order and in accordance therewith. The Contractor's representative and the Inspector shall compare records of Extra Work done on a Force Account basis at the end of each day. Copies of these records shall be made upon suitable forms provided for this purpose, and signed by both the Inspector and the Contractor's representative, one copy being forwarded to the Project Engineer, or Project Manager, and one copy to the Contractor. All claims for Extra Work done on a Force Account basis shall be submitted each month to the Project Engineer, or Project Manager, by the Contractor upon certified statements, or upon forms furnished by the Owner. Work performed prior to a written order by the Project Engineer, or Project Manager, will not be paid for. 3.7 PARTIAL PAYMENTS: The Project Engineer, or Project Manager, will make an estimate once each month, as the Work progresses, of the value of the Work performed and materials completed and in-place or delivered to the site in accordance with the Contract. On request of the Project Engineer, or Project Manager, the Contractor shall furnish a detailed estimate of the total Contract price showing the amount included therein for each category of Work, to provide a basis for determining the amount of progress payments. The market value of materials and equipment delivered to the construction site but not yet incorporated in the Work may, at the discretion of the Owner, be included with a progress payment. However, payment by the Owner for such materials and equipment shall not relieve the Contractor of the responsibility for the care of such materials and equipment because the Owner shall not be deemed to have assumed ownership of the materials or equipment until these are incorporated into the completed and accepted Work. Such increases to progress payments, if authorized, are intended only to reduce the cost of doing business with the Owner. The Owner, when awarding a contract exceeding one hundred fifty thousand dollars ($150,000) for the construction, alteration, or repair of any highway, public building, public work, or public improvement, structure, or system, including real property as defined in section 24-30-1301 (15), shall authorize partial payments of the amount due under such contract at the end of each calendar month, or as soon thereafter as practicable, to the contractor, if the contractor is satisfactorily performing the contract. The Owner shall pay at least ninety-five percent of the calculated value of completed work. The withheld percentage of the contract price of any contracted work, improvement, or construction may be retained until the contract is completed satisfactorily and finally accepted by the Owner. Where the Contract price does not exceed such amount, from the total of the estimate so ascertained will be deducted an amount equivalent to five (5) percent of the whole, to be retained by the Owner until acceptance of the entire Contract, and the balance of the sum equivalent to ninety (90) percent of the whole shall be certified by the Project Engineer, or Project Manager, for payment. In addition, Owner shall retain from all progress payments an amount equal to all statutory claims filed against Contractor. No partial payments except final payment will be made for a sum less than $l,000.00. The estimates will be approximate only, and all partial or monthly estimates and payments shall be subject to correction in the estimate and payment rendered following discovery of an error in any previous estimates or payments. Should any defective Work or material be discovered, or should a reasonable doubt arise as to the integrity of any part of the Work completed previous to the final acceptance and payment, there will be deducted from the first payment rendered after the discovery of such Work an amount equal in value to the defective or questioned Work, and this Work will not be included in a subsequent estimate or payment until the defects have been remedied or the causes for doubt removed. 3.8 TAXES / DIRECT PURCHASE OPTION 3.8.1 Sales and Use Tax - Contractor shall only include sales and use tax levied by the City of Englewood and Arapahoe County on materials in its Schedules of Values, and Subcontractors and Suppliers shall only include such amounts in their Bids. The Owner will furnish to Contractor, on request by the Contractor, the necessary exemption certificates to aid the Contractor in the recovery or avoidance of any such taxes paid or otherwise due to be paid by Contractor for materials and equipment built into the Project, or to support the Contractor's failure to pay such taxes, as the case may be. 3.8.2 Tax Exemption - In accordance with Colorado Revised Statutes Sections 39-26-114 and 39-26-203, and the related regulation of the Department of Revenue, State of Colorado, the Contractor shall apply to the Department of Revenue, and secure prior to commencing the Project an exemption certificate, which when issued by the Department of Revenue will enable the Contractor to purchase for the Project all materials free of State Sales and Use Taxes and Regional Transportation District (RTD) Tax, provided that any building permit fee shall be included in any Proposal with respect to the Project. Further, if awarded the Project, no Englewood sales and/or use tax shall be included in any billing with respect to the Project. This provision shall apply to all contractors, subcontractors and material suppliers. When Englewood sales tax is paid to licensed Englewood vendors for materials, which become part of the Project by a Contractor, the City of Englewood will refund that tax to the Contractor upon receipt of an application from the Contractor at the conclusion of the Project. Accompanying the application must be the material receipt(s) displaying a description of the items(s) purchased, date of purchase, amount of purchase, tax paid and any Page 248 of 436 14 other documentation and information which may be required by the Owner to substantiate the payment and help validate a refund. 3.8.3 Direct Purchase Option - At Owner’s option, Contractor and Owner shall cooperate with one another so that Owner may purchase or contract directly for such items or Contractor and Owner shall make other appropriate arrangements as necessary to avoid incurring taxes, fees, and other costs. In such circumstances, Contractor shall act as agent for Owner in effecting such purchasing and contracting, Contractor shall have all the responsibilities as to such portions of the Work as Contractor otherwise has with respect to the Work. Contractor shall be responsible to expedite, arrange for and receive delivery of all such purchases, regardless of whether made by Contractor or Owner, and shall promptly examine deliveries to ascertain whether or not they comply with the requirements of the Contract Documents. Contractor shall promptly notify the Owner and Architect of any delay in the delivery of such purchases, any failure to receive such purchases as needed and any failure of such purchases to comply with the Contract Documents 3.8.4 Direct Supplier Payment - To the extent that Owner makes any payments directly to Suppliers, such payments shall be credited against the payments due from Owner to Contractor hereunder and shown, as incurred, on all Applications for Payment. Owner shall promptly notify Contractor and Architect, on serially numbered forms, of any amount paid directly for materials, any discounts obtained by Owner, and the amount of the credit due to Owner. 3.8.5 Tax Payment - The Contractor shall pay all sales and use taxes required to be paid, shall maintain such records in respect to his Work, which shall be separate and distinct from all other records maintained by the Contractor and shall be available for inspection by the Owner at any and all reasonable times, and shall furnish the Owner with such data, as may be necessary to enable the Owner to obtain any refunds of such taxes which may be available to the Owner under the laws, ordinances, rules or regulations applicable to such taxes. The Contractor shall require each of his Subcontractors to pay all sales and use taxes required to be paid and to maintain such records and furnish the Contractor with such data as may be necessary to enable the Owner to obtain a refund of the taxes paid by such subcontractors. The Contractors or Subcontractors who purchase materials, which become part of the Project, from governmental entities, which do not honor the exemption and thereby pay sales tax will not be reimbursed for that tax payment by the City of Englewood. The Contractor shall bear the risk of any added or increased taxes occurring during the performance of the Work. A change in taxes shall under no circumstances entitle the Contractor to an adjustment under the Contract. 3.8.6 Discounts - All discounts for prompt payment obtained by Contractor shall accrue to Owner to the extent they apply to Costs of Work payable by Owner (whether paid directly or reimbursed to Contractor). To the extent that such discounts apply to costs paid by Contractor without reimbursement, such discounts shall accrue to Contractor. All trade discounts, rebates and refunds, and all returns from sale of surplus or salvage materials and equipment, shall accrue to the benefit of Owner, and the Contractor’s agreements with others shall provide for such credits to be applied either through credits from Subcontractors and Suppliers passed through to Owner by Contractor or by payment directly to Owner. 3.8.7 Adjustments - The Contract Sum may be adjusted by Agreed Change. Contractor is obligated to pay out of its own funds any overruns of the Contract Sum not approved by Agreed Change as provided in Article 6. 3.9 LIENS 3.9.1 Title - Nothing in this contract shall be construed as vesting in Contractor any right of property in any equipment, materials, supplies, and other items provided under this contract after they have been installed in, incorporated into, attached to, or affixed to, the work or the work site. All such equipment, materials, supplies, and other items shall, upon being so installed, incorporated, attached or affixed, become the property of Owner, but such title shall not release Contractor from its duty to insure and protect the Work in accordance with the requirements of this contract. 3.9.2 Waivers of Lien - Contractor shall, from time to time at Owner's request and in any event prior to final payment, furnish to Owner such receipts, releases, affidavits, certificates, and other evidence as may be necessary to establish, to the reasonable satisfaction of Owner, that no lien against the work or the public funds held by Owner exists in favor of any person whatsoever for or by reason of any equipment, material, supplies, or other item furnished, labor performed, or other thing done in connection with the work or this contract ("Lien") and that no right to file any Lien exists in favor of any person whatsoever. 3.9.3 Removal of Liens - If at any time any notice of any Lien is filed, then Contractor shall, promptly and without charge, discharge, remove, or otherwise dispose of such Lien. Until such discharge, removal, or Page 249 of 436 15 disposition, Owner shall have the right to retain from any money payable hereunder an amount that Owner, in its sole judgment, deems necessary to satisfy such Lien and to pay the costs and expenses, including attorneys' fees and administrative expenses, of any actions brought in connection therewith or by reason thereof. 3.9.4 Protection of Owner Only - This section shall not operate to relieve Contractor's surety or sureties from any of their obligations under the Bonds, nor shall it be deemed to vest any right, interest, or entitlement in any subcontractor or supplier. Owner's retention of funds pursuant to this section shall be deemed solely for the protection of its own interests pending removal of such Liens by Contractor, and Owner shall have no obligation to apply such funds to such removal but may, nevertheless, do so where Owner's interests would thereby be served. 3.10 DEDUCTIONS 3.10.1 Owner's Right to Withhold - Notwithstanding any other provision of this contract and without prejudice to any of Owner's other rights or remedies, Owner shall have the right at any time or times, whether before or after approval of any Pay Request, to deduct and withhold from any Progress or final payment that may be or become due under this contract such amount as may reasonably appear necessary to compensate Owner for any actual or prospective loss due to: a) Work that is defective, damaged, flawed, unsuitable, nonconforming, or incomplete; b) Damage for which Contractor is liable under this contract; c) State or local sales, use, or excise taxes from which Owner is exempt; d) Liens or claims of Lien regardless of merit; e) Claims of subcontractors, suppliers, or other persons regardless of merit; f) Delay in the progress or completion of the work; g) Inability of Contractor to complete the work; h) Failure of Contractor to properly complete or document any Pay Request; i) Any other failure of Contractor to perform any of its obligations under this contract; or j) The cost to Owner, including attorneys' fees and administrative costs, of correcting any of the aforesaid matters or exercising any one or more of Owner's remedies set forth in Section 3.2 of this contract. 3.10.2 Use of Withheld Funds - Owner shall be entitled to retain any and all amounts withheld pursuant to subsection 7.12 above until Contractor shall have either performed the obligations in question or furnished security for such performance satisfactory to Owner. Owner shall be entitled to apply any money withheld or any other money due Contractor under this contract to reimburse itself for any and all costs, expenses, losses, damages, liabilities, suits, judgments, awards, attorneys' fees and administrative expenses incurred, suffered, or sustained by Owner and chargeable to Contractor under this contract. Article 4. COMPLETION, TIME AND DELAYS IN CONSTRUCTION 4.1 DELAYS: No payment, compensation, damages, or adjustment of any kind, other than extension of the contract time if received in writing by Owner shall be made to, or claimed by, Contractor because of hindrances or delays from any cause in the commencement, prosecution, or completion of the work, whether caused by Owner or any other party and whether avoidable or unavoidable other than as set forth in a change order described fully above. 4.2 CONSTRUCTION SCHEDULE: Within the time specified in the Request for Bids, the Contractor shall submit to the Owner a proposed Construction Schedule using Primavera, MS Project or other comparable Critical Path Method (CPM) scheduling software. The Construction Schedule must include all Work activities to be performed under the Contract including any work to be performed by Subcontractors and must account for all Reasonably Predictable Weather Delays. All activities should be logically tied with a critical path clearly identified. The schedule must have sufficient detail to adequately plan and manage the Work. Contractual and key milestones are to be identified. The Construction Schedule must include a brief narrative including: a) A description of the schedule critical path (series of tasks that define the overall project schedule); b) Identification of non-work days such as weekends or holidays; c) A table showing calculated Reasonably Predictable Weather Days (including drying days for each month); and d) List of assumptions used while developing the Construction Schedule. Page 250 of 436 16 It will be presumed that the Contractor, at the time of Bid, took into account the number of days which might be unavailable for Work as a result of Reasonably Predictable Weather Delays during the Contract Time. The Contractor shall calculate the average number of lost weather days for each month of the Construction Schedule as defined in section 4.12.4 below. On a monthly basis with each pay application and as requested by the Project Engineer, or Project Manager, the Contractor shall update the Construction Schedule and provide a summary report of progress on the various parts of the Work, including the status, rate of progress, estimated completion date, and cause of delay, if any. This report shall not constitute a request or approval for any change in the Contract Time. Work shall normally not be done on Saturdays, Sundays, Owner observed holidays, or outside of the daytime working hours (7:00 a.m. to 7:00 p.m.), except for such work as may be necessary for proper care, maintenance, and protection of Work already done, or in cases when the Work would be endangered or when hazard to life or property would result. No work shall be done on Sundays, holidays, or at night outside of usual daytime working hours, except in emergencies beyond the Contractor’s control, whereby the work would be endangered, or hazards to life or property would result. If the Contractor believes it may be necessary to work on Saturdays, Sundays, holidays, or at night, the Contractor shall make prior arrangements with the Project Engineer, or Project Manager, and receive written approval at least forty-eight (48) hours before such work period so that proper inspection and engineering services can be provided. Such approval may be revoked by the Project Engineer, or Project Manager, if the Contractor fails to maintain adequate equipment and lighting at night for the proper prosecution, control and inspection of the Work. If Work is done outside of approved working hours, and the Project Engineer, or Project Manager, has not assigned Inspectors to the Work, the Work performed during those periods of time may be declared defective solely on the grounds that it was not properly inspected. 4.3 SUBCONTRACTING OR ASSIGNING OF CONTRACT: No Contractual relationship will be recognized under the Contract other than the Contractual relationship between the Owner and Contractor. Contractor shall not, at any time, assign any interest in this Agreement or the other Contract Documents to any person or entity without the prior written consent of the Owner specifically including, but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law). Any attempted assignment which is not in compliance with the terms hereof shall be null and void. Unless specifically stated to the contrary in any written consent to an Assignment, no Assignment will release or discharge the Assignor from any duty or responsibility under the Contract Documents. 4.4 COMMENCEMENT OF WORK: The Contractor agrees to undertake the performance of the work under this Contract within ten (10) days from being notified to commence work by the Director of Public Works, and agrees to fully complete said work within the schedule designated in the contract plus such extension or extensions of time as may be granted by the Director of Public Works in accordance with the provisions of the Contract Documents and Specifications. The Contractor shall notify the Project Engineer, or Project Manager, at least 48 hours in advance of the time he intends to begin Work. The Contractor shall conduct Work in such a manner and with sufficient materials, equipment, and labor as is considered necessary to insure its completion within the time limit set forth in the Contract. Should the prosecution of Work for any reason be discontinued by the Contractor, with the consent of the Project Engineer, or Project Manager, he shall notify the Project Engineer, or Project Manager, at least 48 hours in advance of resuming operations. 4.5 LIMITATION OF OPERATIONS: Each item of Work shall be performed to completion without delay and in no instance will the Contractor be permitted to transfer his force from uncompleted Work to new Work without the permission of the Project Engineer, or Project Manager. The Contractor shall not open up Work to the prejudice of Work already started. 4.6 PROGRESS SCHEDULE: The Contractor shall prepare and submit to the Project Engineer, or Project Manager, for approval five (5) calendar days prior to the Preconstruction Conference, a practicable schedule, showing the order in which the Contractor proposes to carry on the Work, the date on which he will start the several salient features (including procurement of materials and equipment) and the contemplated dates for completing the same. The schedule shall be in the form of a progress chart of suitable scale to indicate appropriately the percentage of Work scheduled for completion at any time. The Contractor shall enter on the chart the actual progress at such intervals as directed by the Engineer or Project Manager, and shall immediately deliver three copies thereof. If the Contractor fails to submit a progress schedule within the time herein prescribed, the Project Engineer, or Project Manager, may withhold approval of progress payment estimates until such time as the Contractor submits the required Page 251 of 436 17 progress schedule. The Contractor shall perform the Work in accordance with the latest approved progress Schedule. In the event that the progress of items along the critical path in the project schedule is delayed, the Contractor shall revise his planning to include additional forces, equipment, shifts or hours as necessary to meet the time or times of completion specified in this Contract. Additional costs resulting therefrom will be borne by the Contractor. The Contractor shall make such changes when his progress at any check period does not meet at least one of the following two tests: a. The percentage of dollar value of completed Work with respect to the total amount of the Contract is within ten percentage points of the percentage of the Contract time elapsed, or; b. The percentage of dollar value of completed Work is within ten percentage points of the dollar value which should have been performed according to the Contractors own network analysis previously approved by the Project Engineer, or Project Manager. Failure of the Contractor to comply with the requirements under this Section will be grounds for determination that the Contractor is not performing the Work with such diligence as will ensure completion within the time of completion specified in this Contract. Upon such determination, the Owner may terminate the Contractor's right to proceed with the Work, or any separate part thereof, in accordance with the provisions contained herein. The Owner may extend the time periods reflected by subparagraphs (a) and (b) above, if those subparagraphs do not reasonably reflect upon the Contractor’s prosecution of the Work. 4.7 CHARACTER OF WORKMEN AND EQUIPMENT: The Contractor shall employ such superintendents, foremen, and workmen as are careful and competent, and the Project Engineer, or Project Manager, may demand the dismissal of any person or persons employed by the Contractor in, about, or upon the Work who shall engage in acts of misconduct (as defined in the Federal Contractor Misconduct Database) or be incompetent or negligent in the proper performance of his or her duties, or neglects or refuses to comply with the directions given, and such person or persons shall not be employed again thereon without the written consent of the Project Engineer, or Project Manager. Should the Contractor continue to employ, or again employ such person or persons, the Project Engineer, or Project Manager, may withhold all payments which are or may become due, or the Project Engineer, or Project Manager, may suspend the Work until such orders are complied with. In the employment of labor, preference shall be given, other conditions being equal, to residents of the area wherein the Work is being done, but no other preference or discrimination among citizens of the United States shall be made, except as may be required by special labor provisions. The Contractor shall furnish such equipment as is considered necessary for the prosecution of the Work in an acceptable manner and at a satisfactory rate of progress. All equipment, tools, and machinery used for handling materials and executing any part of the Work shall be maintained in a satisfactory working condition. Equipment used on any portion of the Work shall be such that no injury to the workers, roadways, adjacent property, or other objects will result from its use. The Contract may be terminated if the Contractor fails to provide adequate equipment for the Work. 4.8 SUSPENSION OF WORK: The Owner may suspend all or any part of the Work by written order signed by the Project Engineer, or Project Manager, without invalidating the Contract, for such period or periods as it may deem necessary due to: a) Any reason for the convenience of the Owner, with or without cause, including but not limited to the availability of funding for the Project; b) An order from a state or federal court or administrative agency; or c) The Contractor’s failure to perform any provision of the Contract Documents. Upon receipt from the Project Engineer, or Project Manager, of an order to suspend the Work, the Contractor shall, within three (3) days, submit a suspension plan to the Project Engineer, or Project Manager, for acceptance. The plan shall describe how the Contractor will store all materials in a manner so that the materials will not become an obstruction or become damaged in any way, what cost effective methods it will employ to prevent damage to or deterioration of the Work and otherwise protect the Work, how suitable drainage will be provided, what temporary structures will be necessary, and how the Contractor will prepare for resuming the Work for the least possible remobilization cost. After the plan is accepted, the Contractor shall implement it in accordance with instructions received from the Project Engineer, or Project Manager. Under no circumstance shall a suspension absolve the Contractor or the Contractor’s sureties of the duties and responsibilities guaranteed under the Bonds. The Contractor shall again proceed with the Work when it is ordered to do so in writing by the Project Engineer, or Project Manager. Upon the resumption of the Work for all suspensions not involving the Contractor’s failure to perform in accord with the Contract Documents, adjustment of Contract Time, if appropriate, will be made in accordance with these General Conditions. Adjustment of the Contract Price, if any, will be within the Owner’s sole discretion and shall not in any Page 252 of 436 18 event, exceed the cost of the extra work resulting from such suspension. Such cost, if any, shall be determined in accordance with these General Conditions. 4.9 SUSPENSION OF WORK FOR OWNER’S CONVENIENCE: Upon decision to suspend the Work or any part of the Work for the Owner’s convenience, the order of suspension will extend the Contract Time for the number of days of such suspension if all Work is suspended. If the suspension applies to only a part of the Work, a time extension will not be authorized until the partial suspension has run and its effect on the entire Contract can be evaluated. In all cases of suspension for the Owner’s convenience, the costs to the Contractor will be determined in accordance with these General Conditions. Upon order of such suspension, the Contractor shall immediately begin to perform in a manner designed to minimize the costs of protecting the Work and maintaining it in a condition which will permit its resumption for the least possible remobilization cost. 4.10 SUSPENSION OF WORK DUE TO ORDER OF CITY, COUNTY, STATE or FEDERAL COURT OR AGENCY: If the suspension of work is due to an order from a City, County, State or Federal court, the order of suspension will identify the court or agency order which caused the suspension and will extend the Contract by the amount of time specified by the court or agency order. If the order causes suspension for an indefinite period of time and as a result a time extension cannot be established, the order of suspension will also be for an indefinite period of time. If the order is issued because of acts or omissions of the Contractor, the Contractor shall not be entitled to a time extension or payment for any additional costs it incurs. 4.11 SUSPENSION OF WORK RESULTING FROM CONTRACTOR’S FAILURE TO PERFORM: If a suspension order results from the Contractor’s failure to satisfactorily perform any of the provisions of the Contract, including but not limited to faulty workmanship, safety concerns, improper or inadequate manpower, equipment, supplies or supervision, or failure to perform the Work in a timely manner, the order will identify the reason, or reasons, for the order. In this circumstance, no time extension will be authorized for the Contractor and any costs to the Contractor resulting from such suspension order will not be reimbursed by the Owner. A suspension order issued under these circumstances will remain in effect until the Contractor has removed or corrected the grounds for the suspension, if applicable, or the order requiring such suspension expires by its terms. 4.12 CONTRACT TIME: Work shall be fully completed in a satisfactory and acceptable manner by the Completion Date as modified by Change Orders that may extend the project schedule due to excusable delays. 4.12.1 Delays - Delay claims fall into three categories: non-excusable; excusable/non-compensable; and excusable/compensable. Any payment for compensable delays or the granting of time extensions for excusable delays requires a properly executed Change Order. The Contractor agrees that time extensions shall constitute full compensation for any excusable/non-compensable delay, and the Contractor shall make no claim for monetary damages relating to any non-excusable delay or any excusable/non- compensable delay. 4.12.2 Non-Excusable Delay - Non-excusable delay is caused by factors within the Contractor’s reasonable control or by the Contractor’s fault. No additional time or additional compensation is allowed for non- excusable delays. Typical non-excusable delays, without limitation, include: a) Late submittal of Shop Drawings; b) Late procurement of materials or equipment; c) Insufficient personnel; d) Unqualified personnel; e) Inadequate coordination of Subcontractors or other contractors; f) Subcontractor delays; g) Late response to Owner, Project Engineer, or Project Manager, or Inspector inquiries; h) Failure to comply with the requirements of the Contract Documents; i) Construction not conforming to contract requirements making repeated re-working necessary; j) Delays resulting from the Contractor’s failure to take reasonable actions to mitigate or prevent further delays relating to any excusable delay; k) Failure to continue performance during the determination of any Contractor Change Request or claim; and l) Weather delays exceeding the Reasonably Predictable Weather Days identified on the approved Construction Schedule, unless approved as unusually severe weather days. 4.12.3 Excusable Delay a. Excusable/Non-compensable delay is caused by factors beyond the Contractor’s reasonable control, but is not the result of the Owner’s actions or omissions. An excusable/non-compensable delay entitles the Contractor to an extension of time but no additional compensation for the cost of the delay. Page 253 of 436 19 Typical excusable/non-compensable delays, without limitation, include strikes, lockouts, natural fires not caused by Contractor’s acts or omissions, unusual delay in transportation, unavoidable casualties, legal or administrative proceedings affecting the Work or the Project, and other causes beyond the Contractor’s control. b. Excusable/Compensable delay is caused by the Owner’s failure to meet an obligation within its control stated or implied in the Contract, but shall not include any action, omission, or exercise of any right under the Contract. If the Project Engineer, or Project Manager, considers a delay as compensable, the Owner will grant a time extension or reimburse the Contractor for the increased total cost of performance caused by the delay, or both, as appropriate. Typical excusable/compensable delays, without limitation, include: 1) Late approval of Shop Drawings and samples; 2) Delays in answers to field inquiries made by the Contractor; 3) Interference with the Contractor during construction: 4) Owner-caused schedule changes; 5) Design changes; or 6) Interference by another contractor’s or the Owner’s personnel. 4.12.4 Weather Delay - In order for a Weather Delay to occur, the total lost weather days must exceed the total number of such days included in the contract time as specified in the Special Provisions for the project. The Weather Delay, if any, shall be the number of days of such excess; provided that no Weather Delay shall have occurred except to the extent that Work which needs to be performed during the period of time affected by adverse weather is actually delayed in a manner that delays the critical path to completion of the Work. As used herein, a “lost weather day” shall mean a day during which actual adverse weather prevents work on activities that need to be performed on that day in accordance with the Project Schedule for fifty percent (50%) or more of Contractor’s scheduled Work for such day. Contractor shall report to Owner no later than 10:30 a.m. Mountain Time on each day Contractor claims to be a lost weather day or (ii) if Work on the Project has commenced for such day, within one hour of Contractor’s decision to suspend Work because of such adverse weather. Such report shall state that Contractor considers that a lost weather day is occurring and shall describe the weather conditions experienced and how the weather conditions have affected the Scheduled Work for such day. Unless Contractor gives such timely notice as to any day when work is adversely affected by adverse weather, Contractor shall not be entitled to claim such day as a lost weather day. 4.12.5 Time Adjustments for Weather Delays - The Project Engineer, or Project Manager, in his or her discretion, may deem weather-related delays as excusable/non-compensable if the net number of lost weather days in any month exceeds the number of Reasonably Predictable Weather Days for that month shown on the approved Construction Schedule. The Contractor must submit a weather time impact analysis supporting any request for time extensions due to unusually severe weather. If Contractor is delayed in the performance or progress of the Work by fire, flood, epidemic, abnormal weather conditions, acts of God, acts or failures to act of utility owners not under the control of Owner, or other causes not the fault of and beyond the control of Owner and Contractor, then Contractor shall be entitled to an equitable adjustment in Contract Times, if such adjustment is essential to Contractor’s ability to complete the Work within the Contract Time. Such an adjustment shall be Contractor’s sole and exclusive remedy for the delays described in this Paragraph. 4.13 LIQUIDATED DAMAGES: The Owner may permit the Contractor to proceed if the Contractor fails to advance the Work sufficiently to obtain a Notice of Substantial Completion on or before the Completion Date, as modified by Change Orders providing for additional time due to excusable delays. In such case, the Contractor will pay the sum of liquidated damages stipulated in the Special Conditions for each day that the Work remains uncompleted. This sum shall not be a penalty but is liquidated damages. The Parties agree that time is of the essence in the performance of this Contract and that actual damages for delay are incapable of calculation. The Parties agree that, under all of the circumstances, the daily basis and the amount set forth as liquidated damages is reasonable and equitable. The Owner expends additional personnel effort in administrating the Contract or portions of it that are not completed on time, and such efforts and the costs thereof are impossible to accurately compute. In addition, some, if not all, citizens of the City of Englewood incur personal inconvenience and lose confidence in their government as a result of public projects or parts of them not being completed on time, and the impact and damages, certainly serious in monetary as well as other terms, are impossible to measure. Permitting the Contractor to continue and finish the Work, or any part of it, after the Completion Date shall not operate as a waiver on the part of the Owner of liquidated damages or any of its rights under the Contract. Page 254 of 436 20 The Owner may deduct liquidated damages or any portion thereof due under this article from Final Payment and may sue for and recover such damages from the Contractor and the Surety. The Owner and Contractor agree that as liquidated damages for delay, but not as a penalty, Contractor shall pay the Owner the amount specified in the table below for each day that expires after the time specified for substantial completion until the Work is complete, and for each day that expires after the time specified for final completion until the Work is finally complete. Original Contract Amount Amount of Liquidated Damages Per Day Less than $150,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $500.00 $150,000 and less than $500,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,000.00 $500,000 and less than $1,000,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,600.00 $1,000,000 and less than $2,000,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,300.00 $2,000,000 and less than $4,000,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $4,100.00 $4,000,000 and over. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $5,800.00 In addition to liquidated damages, inspections required after the Contractual "Time of Completion" shall be charged to the Contractor at the rate of $50.00 per hour. The Owner shall recover said inspection charges and liquidated damages by deducting the amount thereof out of any moneys which may be due or may become due to the Contractor, and/or by an action at law against the Contractor or his Surety. It is understood and agreed that aside from any other penalty or damage, all costs of the Project Engineer, or Project Manager, and inspection on behalf of the Owner may be charged to the Contractor and be deducted from any estimate or payment otherwise due and payable to him 4.14 ADJUSTMENT FOR SUSPENDED WORK: In the event the Contractor is ordered by the Owner, in writing, to suspend Work for some unforeseen cause not provided for in the Contract, and over which the Contractor has no control, the Contractor may be reimbursed for actual money expended on the job during the period of shutdown. No allowance will be made for lost profits. The period of shutdown shall be computed from the date set out in the written order for Work to cease until the date of the order for Work to resume. Claims for such compensation shall be filed with the Owner within 10 days after date of order to resume Work or such claims will not be considered. The Contractor shall submit with his claim, substantiating papers covering the entire amount shown on the claim. The Owner shall take the claim under consideration, and may make such investigations as are deemed necessary, and shall be the sole judge as to the equitability of such claim and such decision shall be final. Notwithstanding any provisions of this Contract to the contrary, no provision of this section shall be construed as entitling the Contractor to compensation for delays due to inclement weather, delays due to failure of Surety, for suspensions made at the request of the Contractor, or for any other delay provided for in the Contract Documents, Specifications, Special Provisions, Proposal, Contract, Change Order, Field Order or Supplemental Agreement. 4.15 TERMINATION OF CONTRACT: The Contract may be terminated by the Owner for cause or convenience. Notwithstanding the below, the Contractor shall not be relieved of the liability to the Owner for damages sustained by the Owner by virtue of breach of the award by the Contractor and the Owner may withhold any payments to the Contractor for the purpose of set off until such time as the exact amount of damages due the Owner from the Contractor is determined. Owner reserves the right to take possession of any machinery, implements, tools, or materials of any description that shall be found upon the Work, to account for said equipment and materials, and to use the same to complete the Project. When the Work is thus finally completed, the total cost of the same will be computed. If the total cost is more than the Contract price, the difference shall be paid to the Owner either by the Contractor or his Surety. If the total cost is less than the Contract price, the difference will be paid by the Owner to the Contractor or his Surety. In case of termination all expenses incident to ascertaining and collecting losses under the bond, including Project Engineer, or Project Manager, and legal services, shall be assessed against the bond. 4.16 TERMINATION FOR CAUSE: The Owner may terminate the Contract for cause due to the actions or inactions of the Contractor. Cause includes, without limitation: a) If the Work to be performed under the Contract is assigned by the Contractor without written permission of the Owner; b) Contractor's disregard of Laws or Regulations of any public body having jurisdiction; c) Contractor's repeated disregard of the authority of the Project Engineer; ; d) If a general assignment of the Contractor’s assets is to be made for the benefit of its creditors; e) If a receiver is appointed for the Contractor or any of its property; Page 255 of 436 21 f) Substantial evidence of collusion for the purpose of illegally procuring a Contract or perpetrating fraud on the Owner in the construction of the Work under the Contract; g) If the Contractor has materially breached any of the conditions, provisions or covenants of the Contract; h) Failure of the Contractor to promptly repair, replace or remove any defects in materials or Work or any defects in materials or Work of any other nature, the correction of which has been directed in writing by the Project Engineer, or Project Manager; i) If, at any time, the performance of the Work under the Contract is being unnecessarily delayed or if the Contractor is willfully or deliberately violating any of the conditions, provisions, or covenants of the Contract Documents, or if the Contractor is executing the same in bad faith or otherwise not in accordance with terms of the Contract; j) Evidence that the progress being made by the Contractor is insufficient to complete the Work within the specified time; k) Failure of the Contractor to start the Work on the date given in the Notice to Proceed; l) If the Work or any part of the Work is not fully completed within the time or times named for its completion or within the time to which such completion date or dates have been extended; m) If the Contractor abandons the Work by failing to be at work site for two consecutive days, and performing work, on days upon which the schedule anticipates work to be performed; n) If the Contractor fails to maintain the required Bonds, licenses, permits, or insurance; o) Bankruptcy or insolvency of the Contractor, or if the Contractor shall allow any final judgment to stand against him unsatisfied for a period of ten (10) days or shall make an assignment for the benefit of creditors. p) 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, kickbacks, collusive proposing, bid-rigging, antitrust, fraud, undue influence, theft, racketeering, extortion or any offense of a similar nature, in connection with Contractor’s business; or q) If other just cause exists. 4.16.1 Written Notice - The Owner will send written notice to the Contractor and the Surety of the Owner’s intent to terminate for cause and will give the Contractor and Surety ten (10) days from the date the notice was sent to cure the default, if such default is subject to cure, or provide to the Owner in writing, a detailed plan of how it will remove the causes for termination, except that, if the Completion Date is less than ten (10) days away, the notice may specify less than ten (10) days. If the Contractor or Surety does not submit such plan within the time established, or if, in the judgment of the Owner, such plan will not ensure the satisfactory performance of the Work, the Owner may declare the Contract terminated on the effective date specified in the notice or any other date thereafter. 4.16.2 Discontinue Work - In the event of termination for cause, the Owner shall notify the Contractor to discontinue all Work under the Contract and the Contractor shall immediately respect such notice, stop all Work and cease to have any right to possession of the Work site. 4.16.3 Contract Forfeiture - In addition, the Contractor shall forfeit its Contract as of the specified effective date of termination. 4.16.4 Possession of Materials and Equipment - Upon such termination for cause, the Owner may take possession of all materials, equipment, tools, and temporary material manufacturing plants as may be on the site of the Work or necessary for completion of the Work and take over the Work and prosecute the same to completion, by Contract or otherwise, for the account and at the expense of the Contractor. 4.16.5 Cost Liability - If Owner proceeds as provided in Paragraph 4.16, Contractor shall not be entitled to receive any further payment until the Work is completed. If the unpaid balance of the Contract Price exceeds all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) sustained by Owner arising out of or relating to completing the Work, such excess will be paid to Contractor. If such claims, costs, losses, and damages exceed such unpaid balance, Contractor (and/or its surety) shall pay the difference to Owner. Such claims, costs, losses, and damages incurred by Owner will be reviewed by the Project Engineer as to their reasonableness and, when so approved by the Project Engineer, incorporated in a Change Order. When exercising any rights or remedies under this Paragraph, Owner shall not be required to obtain the lowest price for the Work performed. 4.17 TERMINATION FOR CONVENIENCE OF THE OWNER: The performance of Work under the Contract in whole or in part may be terminated without cause by the Owner whenever the Owner, in its sole discretion, shall determine Page 256 of 436 22 that such termination is in the best interest and convenience of the Owner or whenever the Owner is prohibited from completing the Work for any reason. Such termination shall be effected by giving not less than three (3) days’ written notice to the Contractor specifying the extent to which performance of the Work is terminated and the date upon which such termination becomes effective. 4.17.1 Contractor Responsibilities - Upon receipt of such notice of termination, the Contractor shall: a) Stop work under the Contract on the date and to the extent specified in the Notice of Termination; b) Place no further orders or subcontracts for materials, services or facilities, except as may be necessary for completion of such portion of the Work under the Contract as is not terminated; c) Terminate all orders and subcontracts except as necessary to complete Work which is not terminated; d) If directed in writing by the Owner to do so, assign all right, title, and interest in subcontracts and materials in progress, in which case the Owner will have the right, in its discretion, to settle or pay any or all Claims arising out of the termination of such subcontracts; e) Transfer title and deliver to the Owner in the manner, at the times, and to the extent, if any directed by it, (a) the fabricated or un-fabricated parts, Work in process, completed Work, supplies and other material procured as a part of, or acquired in connection with the performance of, the Work terminated by the Notice of Termination, and (b) the completed or partially completed Plans, drawings, information, and other property, which, if the Contract had been completed, would have been required to be furnished to the Owner; f) Settle outstanding liabilities and claims with the approval of the Owner; g) Complete performance of such part of the Work not terminated; and h) Take such other actions as may be necessary, or as may be directed by the Owner, for the protection and preservation of the property related to the Contract. 4.17.2 Payment for Work Performed - With respect to Contract Work performed prior to the effective date of the Notice of Termination, the total (without duplication of any items) of: a) The cost of such Work; b) The cost of settling and paying claims arising out of the termination of Work under subcontracts or orders as provided in subparagraph (d) above, exclusive of the amounts paid or payable on account of supplies or materials delivered or services furnished by the Subcontractor prior to the effective date of the Notice of Termination of Work under the Contract, which amounts shall be included in the cost on account of which payment is made under (a) above; c) A sum, as profit on the cost of such Work, determined by the Owner to be fair and reasonable; provided, however, that if it appears that the Contractor would have sustained a loss on the entire Contract had it been completed, no profit shall be included or allowed under this subparagraph and an appropriate adjustment shall be made by reducing the amount of the settlement to reflect the indicated rate of loss; d) The reasonable cost of the preservation and protection of property incurred pursuant to subparagraph (h) and any other reasonable cost incidental to termination of Work under this Contract, including expense incidental to the determination of the amount due to the Contractor as the result of the termination of Work under this Contract. 4.17.3 Remaining Inventory - Except as provided herein, any inventory paid for by the Owner but remaining upon the termination of the Contract may, with written approval of the Owner, be sold or acquired by the Contractor under the conditions prescribed by and at prices approved by the Owner. 4.17.4 Request for Final Payment - Upon receipt of notice of such termination, the Contractor shall submit to the Project Engineer, or Project Manager, a request for final payment, in a form and with certification prescribed by the Owner. Such request shall be submitted promptly but in no event later than sixty (60) days from the effective date of termination, unless extended in writing by the Project Engineer, or Project Manager, upon the written request of the Contractor within such sixty (60) day period, or such earlier date as is provided by law. 4.17.5 Profit - Subject to the provisions contained herein, the Contractor and the Owner may agree upon the whole or any part of the amount or amounts to be paid to the Contractor by reason of the total or partial termination of Work pursuant to this Section, which amount or amounts may include an allowance for profit on Work done; provided that such agreed amount or amounts, exclusive of settlement costs, shall not exceed the total Contract price as reduced by the amount of payments otherwise made and as further reduced by the Contract price of Work terminated. The Contract will be amended accordingly, and the Contractor will be paid the agreed amount. Page 257 of 436 23 4.17.6 Calculation of Final Payment - The final payment to the Contractor after a termination for convenience shall be calculated as follows: a) From the Contract Price, subtract the following: 1) The total amount paid to the Contractor to date; 2) The value of the Work completed since the last approved pay application; 3) The total amount of retainage withheld by the Owner to date; 4) The agreed price for, or the proceeds of sale of, any materials, supplies, or other things acquired or sold by the Contractor or sold pursuant to these General Conditions and not otherwise recovered by or credited to the Owner; 5) The total of all claims the Owner may have against the Contractor; and 6) Any outstanding claims pursuant to C.R.S. § 38-26-107, as amended or superseded. b) Multiply the number resulting by 0.05. The number resulting is the full and complete compensation for anticipated profits c) Add the following to the total resulting from the prior step: 1) Any actual costs incurred by the Contractor for restocking charges; 2) The agreed upon price of protecting the Work in the manner, if any, directed by the Owner; 3) The amount of retainage withheld by the Owner to date; and 4) The value of the Work completed since the last approved pay application. The sum calculated under this article, when paid to the Contractor, shall constitute full and final settlement of the Contract Price. 4.17.7 Defective Work - The settlement for the Work performed shall not relieve the Contractor, or its surety, from responsibility for defective Work and/or materials on the completed portion of the Work nor for labor and materials or any other items as guaranteed by the Bonds. 4.17.8 Owner Access - Unless otherwise provided for in this Contract, or by applicable statute, the Contractor, from the effective date of termination and for a period of three years after final settlement under this Contract, shall preserve and make available to the Owner at all reasonable times at the office of the Contractor, but without direct charge to the Owner, all books, records, documents and other evidence bearing on the costs and expenses of the Contractor under this Contract and related to the expenses of the Contractor under this Contract and related to the Work terminated hereunder, or to the extent approved by the Owner, photographs, micro-photographs, or other authentic reproductions thereof. 4.17.9 Right to File Claim - If the Parties fail to agree in whole or in part on the amount or amounts to be paid to the Contractor in connection with the termination of work pursuant to this article, the Contractor may submit a claim as provided in these General Conditions, except that, if the Contractor has failed to submit its request for payment within the time provided above and has failed to request an extension of such time, it shall have no such right. 4.17.10 Total Sum to be Paid - The total sum to be paid to the Contractor under subparagraph (a) above will not exceed the total Contract price as reduced by the amount of payments otherwise made and as further reduced by the Contract price of Work terminated. 4.17.11 Deduction for Claims - In arriving at the amount due the Contractor under this Section, there will be deducted (i) any claim which the Owner may have against the Contractor in connection with this Contract, (ii) the agreed price for, or the proceeds of sale, of materials, supplies or other things acquired by the Contractor or sold, pursuant to the provisions of this Section and not otherwise recovered by or credited to the Owner and (iii) the full amount of any statutory or other claim against the Contractor filed with the Owner. 4.17.12 Subcontractors - The Contractor shall insert in all subcontracts that the Subcontractor shall stop Work on the date of and to the extent specified in a Notice of Termination from the Owner and shall require that any tier subcontractors insert the same provision in any tier subcontracts. 4.18 COOPERATION WITH OTHER CONTRACTORS: In connection with the improvements under this Contract, the right is reserved by the Owner to award any Work not included in the Contract to another Contractor for performance during the progress of the Work, or to perform such Work with the Owner's forces, and the Contractor under this Contract shall cooperate and so conduct his operation as to minimize the interference therewith, as directed by the Project Engineer, or Project Manager. Page 258 of 436 24 4.19 TERMINATING OF CONTRACTOR'S RESPONSIBILITY: This Contract will be considered complete when all Work and final cleanup has been finished, the Work accepted by the Owner, and all claims for payment of labor, materials, or services of any kind used in connection with the Work have been settled for by the Contractor or his Surety. The Contractor will then be released from further obligation except as set forth in the Surety Bond and for his responsibility for injury to persons or property arising from his duties and obligations under Section 7. The Surety Bond executed for performance of this Contract shall be in full effect for a period of one year following acceptance of the Work, except that with regard to the representation regarding copyright infringement found in Article 18, the Surety shall remain in effect for three years and with regard to the representation regarding patent infringement found in Article 18, the Surety shall remain in effect for six years. Neither the final payment nor any provision in the Contract documents shall relieve the Contractor of the responsibility for negligence or faulty materials or workmanship. The Contractor shall warrant his work to be free from faulty materials or workmanship for the period of one year after final payment and upon written notice he shall remove any defect due thereto and pay for any damage due to other Work resulting there from which shall appear within the one-year period. Remedied Work shall carry the same warranty as the original Work starting with the date of acceptance of the replacement or repair. Payment to the Contractor will not relieve him of any obligation under this Contract. Article 5. PROJECT AND CONSTRUCTION MANAGEMENT 5.1 AUTHORITY OF PROJECT ENGINEER, OR PROJECT MANAGER: The Project Engineer, or Project Manager, shall decide any and all questions which may arise as to the quality and acceptability of the materials furnished, the Work performed, the manner of performance and the rate of progress of the Work. He/She shall decide all questions which may arise as to the interpretation of the Plans and Specifications, all questions as to acceptable fulfillment of the Contract, all disputes and mutual rights by the Contractors if there is more than one Contractor on the Work, and all questions as to compensation. The decision of the Project Engineer, or Project Manager, shall be final. He/She shall have executive authority to make effective such decisions and to enforce the Contractor to carry out all orders promptly. The Project Engineer, or Project Manager, shall be the primary interpreter of the meaning and intent of the Construction Documents and shall be, in the first instance, the judge of the performance of the Contract. The Project Engineer, or Project Manager, will visit the site at appropriate intervals to become familiar with its progress and quality and to determine in general if the Work is being performed in such a manner that it will, when fully completed, be in accordance with the Contract Documents. The Project Engineer, or Project Manager, shall, in a timely manner, evaluate and issue written determinations resolving any claims or disputes submitted to the Project Engineer, or Project Manager, for review under the Contract. Interpretations and decisions of the Project Engineer, or Project Manager, will be consistent with the intent of, and reasonably inferable from, the Contract Documents. The Project Engineer, or Project Manager’s decisions on matters relating to aesthetic effect shall be final if consistent with the intent expressed in the Contract Documents. In exercising its authority to make such determinations, the Project Engineer, or Project Manager, shall exercise independent professional judgment based on the Contract Documents and shall not favor Contractor or Owner. All such determinations shall be subject to judicial review, provided, however, that any matters designated as Disputes under the Contract shall be submitted to Dispute Resolution in accordance with the Contract before being made the subject of litigation unless the Contract specifically provides otherwise. 5.2 COMMUNICATIONS: Contractor shall furnish both Owner and Project Engineer copies of all notices Contractor gives to either the Project Engineer, Project Manager, or Owner under the Contract relating to Applications for Payment, Change Directives, Proposed Changes, Change Orders, Progress Payments, or claims for adjustment in the Contract Sum, Required Substantial Completion Date or Required Final Completion Date. Such duplicate notice shall also be given as to other matters requested in writing by Owner or Project Engineer, or Project Manager. 5.3 SUPERVISION: The Contractor shall supervise and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. The Contractor shall be solely responsible for the means, methods, techniques, sequences, and procedures of construction. The Contractor shall be responsible to see that the completed work complies with the Contract Documents. The Contractor shall designate and keep on the Work at all times during its progress a competent Superintendent who shall not be replaced without prior written notice to the Owner and Project Engineer. The Superintendent will be the Contractor's representative at the site and shall have authority to act on behalf of the Contractor. All communications given to the Superintendent shall be as binding as if given to the Contractor. During periods when the Work is suspended, the Contractor shall make appropriate arrangements for any emergency work which may be required. Page 259 of 436 25 Whenever the Superintendent is not present on any particular part of the Work where the Project Engineer, or Project Manager, may desire to inform the Contractor relative to interpretation of the Plans and Specifications or to disapproval or rejection of materials or Work performed, the Project Engineer, or Project Manager, may so inform the foreman or other worker in charge of the particular part of the Work in reference to which the information is given. Information so given shall be as binding as if given to the Superintendent. The Contractor will be supplied with four (4) copies of the Plans, and three (3) copies of the Specifications and Special Provisions. He shall have available at the job site, at all times, one copy each of said Plans, Specifications and Special Provisions, exclusive of the set designated for As-Built Drawings. Additional copies of Plans, Specifications and Special Provisions can be obtained by the Contractor for the cost of reproduction. 5.4 CONTRACTOR PERFORMANCE: The Contractor will perform the Work or cause the Work to be performed in a manner that is in compliance with the requirements of the Contract Documents. The Contractor shall perform the Work exactly as specified by the Contract Documents. Unless otherwise provided in the Contract Documents, for the Unit Prices, the Contractor shall provide and pay for all labor, materials, equipment, tools, supplies, construction equipment and machinery, water, heat, electricity, energy, utilities, transportation, any temporary construction easements not provided by the Owner, apparatus, permits, superintendence, maintenance, dismantling, removal, and other facilities and services, necessary for the proper execution and completion of the Work, whether temporary or permanent, and whether or not incorporated or to be incorporated into the Work. The Contractor shall be solely responsible for all construction means, methods, safety, techniques, sequences and procedures unless otherwise specified in the Contract Documents. There is a need for 24-hour access to the Contractor’s Superintendent in case of emergency. The contractor shall supply the Project Engineer, or Project Manager, with a contact telephone number through which the Superintendent may be reached at any time. When the work includes adjusting valve boxes, meter pits, manholes, pavement markings and/or striping, etc., the Contractor shall complete this work within ten (10) days of placing the final lift of asphalt. 5.5 WORK PERFORMED UNDER ADVERSE WEATHER CONDITIONS: Adverse weather conditions are those that can, depending on the Work to be performed, cause defective Work. Examples include: high or low temperatures, excessive moisture, unusual drying conditions, or high winds. Construction methods and practices that have been or may be developed for Work performed under such circumstances may only be used after the Project Engineer, or Project Manager, has approved the concept of such method or practice. If the Contractor does attempt Work during periods of adverse weather conditions without the Project Engineer’s, or Project Manager’s, approval, that Work shall be at the Contractor’s sole risk. 5.6 USE OF MATERIALS FOUND ON THE WORK SITE: The Contractor, with the approval of the Project Engineer, or Project Manager, may use in the proposed construction, any stone, sand, or gravel found on the site. The Contractor will not be paid for such excavation unless specifically stated in the Proposal, and he shall replace with other suitable material, without compensation, all of that portion of the material so removed. If it was intended that any or all of the material so excavated and used was to have been wasted, then the Contractor will not be required to replace it. The Contractor shall not excavate any material from the site which is not within the excavation as indicated by the slope and grade lines, without being authorized in writing by the Project Engineer, or Project Manager. 5.7 FINAL CLEANING UP: During the Project's final cleanup, the Contractor shall remove from the site all machinery, equipment, surplus and discarded materials, rubbish, temporary structures, and stumps or portions of trees. The streets and adjacent properties in the Project shall be repaired to as good or better condition than existed prior to construction. This shall include removal of all dirt or mud from streets and lawns. No extra payment shall be made for these items. The Contractor shall leave the Project in a neat and presentable condition. (See Article 17, below). 5.8 SURVEYS: The Contractor shall develop and arrange for all engineering surveys necessary, in the Owner’s judgment, to establish reference points for the construction of the Work. The Contractor assumes full responsibility for construction according to the established lines and grades. If the Contractor proceeds with the Work without having lines and grades set, the Contractor will not be relieved of strict compliance with the Contract Documents. Page 260 of 436 26 The Contractor shall carefully protect all monuments and property markers from disturbance or damage. The Contractor, at its expense, will replace any monuments or benchmarks destroyed by the Contractor using a professional land surveyor licensed in the State of Colorado. Unless otherwise stated in the Specifications or the Special Conditions, the Owner will provide all reference points shown on the Contract Drawings by coordinates and/or elevation. The Contractor must accurately transfer the survey control information to the points of application to ensure that all elements of the Work are correctly located. Requests by the Contractor to relocate survey reference points must be made ninety-six (96) hours prior to the time when the point will be disturbed in order to permit the Owner to accomplish such surveys on normal working days. Any Work that the Contractor begins before confirming the reference points provided may be rejected. Should the original reference points that the Owner provided be obliterated or dislodged by operations that the Contractor controls, the Owner will replace them and charge the Contractor for the resurvey. 5.9 LINES AND GRADES: Contractor shall survey and stake and shall be responsible for laying out the work. The Contractor shall preserve all stakes, bench marks, and any other survey points and shall pay for the replacement, in accordance with state law, of any stakes, benchmarks, or other survey points destroyed by the Contractor or any Subcontractor. 5.10 VALUE ENGINEERING: Value engineering is the independent review of a project during the planning and design phases to reduce costs, save time, improve operations, reduce environmental and other impacts, improve safety, and improve value and quality. Proposed changes in materials or methods used must be approved by the Project Engineer, or Project Manager, and any agency having jurisdiction over the affected work before such work is attempted. The Contractor shall be paid fifty percent (50%) of all identifiable cost savings resulting from said value engineering approved and accepted. A Change Order must be issued to effect such a value engineering task. 5.11 SANITARY REGULATIONS: The Contractor is responsible for providing proper health and sanitation facilities for its employees, in compliance with any rules and regulations of the Colorado Department of Public Health and Environment or any other agencies having jurisdiction. The Contractor shall provide and maintain in a neat, sanitary condition, such accommodations for the use of employees as may be necessary to comply with the requirements and regulations of the State Department of Health and the Occupational Safety and Health Administration (OSHA). As stated in OSHA Construction Standard 1926.51 C, the Contractor shall supply temporary sanitary facilities as per the following table: Number of Employees Minimum Toilet Facilities 20 or less 1 Toilet 21 to 50 1 Toilet and 1 Urinal 51 or more 1 Toilet and 1 Urinal for each 50 Employees This requirement to provide sanitary facilities will not be measured and paid for separately but shall be considered incidental to and included in the cost of the Work. At convenient places, the Contractor shall provide fly-proof outside toilets which are to be maintained in a sanitary condition. Toilets shall not be permitted in any reservoir area and shall not be permitted where they may pollute a water supply. The Contractor shall always provide an abundant supply of safe drinking water for Contractor’s employees and shall give orders against the drinking of any water known to be unsafe in the vicinity of the Project. The Contractor shall provide and empty daily a thirty (30) gallon or larger trash can near each toilet. 5.12 STAGING AND STORAGE: With the approval of the Project Engineer, or Project Manager, the Contractor may obtain sites of his/her choosing for equipment storage and/or materials stockpiling. The Contractor shall not occupy storage sites without prior written approval by the Project Engineer, or Project Manager. A list of such sites showing the proposed truck route for ingress and egress for each site shall be submitted to the Project Engineer, or Project Manager, for approval at least five (5) days prior to intended use. For all sites approved and used, Contractor shall be responsible for the following: a) Obtaining prior written permission of the owner. A copy of this permission shall be provided to the Owner; b) Keeping stockpiles and equipment confined within the approved area and in accordance with applicable erosion control requirements; c) Providing security for materials and equipment at the site; d) Providing for public safety at the site; Page 261 of 436 27 e) Keeping access roads clean and in good condition and in accordance to the Owner’s Erosion Control requirements; and f) At Contractor’s sole cost expense, restoring the site to its original or better condition at the completion of the Work. 5.13 SALVAGE: Items removed by Contractor shall become the property of Contractor unless other disposition or repositioning is required by the Contract Documents or needed for the Work. The Contractor may reuse such items elsewhere, sell such items with proceeds of said sale becoming the property of Contractor or otherwise dispose of such items from the site. Items removed by the Contractor that do not have any salvage value are to be disposed of by Contractor at an approved waste disposal site at the Contractor’s expense, except for any items that the Owner will take for recycling. 5.14 MATERIALS AND EQUIPMENT FURNISHED BY THE CONTRACTOR: Unless otherwise provided for in the Specifications, all workmanship, equipment, materials, and articles incorporated in the Project are to be new, suitable for the purpose used, of good quality, free from faults and defects and in conformance with the Contract Documents. The Contractor further warrants that it has full title to all parts, materials, components, equipment, and other items conveyed to the Owner under the terms of the Contract, that its transfer of such title to the Owner is rightful and that all such parts, materials, components, equipment, and other items shall be transferred free and clear from all security interests, liens, claims, or encumbrances whatsoever. Materials, supplies, and equipment to be incorporated into the Project shall not be purchased by the Contractor or any Subcontractor subject to chattel mortgage or under a conditional sales contract or other agreement by which an interest is retained by the seller. The Contractor agrees to warrant and defend such title against all persons claiming the whole or any part thereof, at no cost to the Owner. The Contractor shall furnish the Owner, for the Project Engineer, or Project Manager’s approval, the name of the manufacturer of machinery and other equipment for materials the Contractor contemplates incorporating in the Project. The Contractor shall also furnish information on capacities, efficiencies, sizes, etc., and other information as may be required by the Project Engineer, or Project Manager. All items shall be labeled to indicate the Contract and Project name, Contractor, source of supply, and manufacturer and shall be submitted in sufficient time to permit proper consideration by the Project Engineer, or Project Manager, without impacting the Construction Schedule. The Contractor shall have available for use when needed all necessary construction machinery and equipment. Such machinery and equipment shall comply with all applicable federal, state and local safety requirements and be in good working condition, adequate for the task, and in the numbers needed to maintain a rate of progress sufficient to complete the Work within the Contract Time and milestones. Whenever an operation is undertaken which must be accomplished without any slowdown or stoppage, or to avoid an inferior product, the Contractor shall provide standby equipment capability so that an equipment breakdown does not disrupt that activity. The Contractor shall give the Project Engineer, or Project Manager, three (3) copies of all shop manuals, operating manuals, parts lists, classifications, catalog cuts, specifications, warranties and guarantees for all equipment and machinery installed. Consideration of a product as an “equal” or “superior” by the Project Engineer, or Project Manager, may require that the manufacturer of such product furnish guarantees that extend beyond the usual product warranty time. The refusal of a manufacturer to provide such guarantees is sufficient reason for rejecting the product. The Contractor shall not incorporate any materials into the Project or cover any part of the Work until it has been inspected and approved according to the Contract Documents. Machinery, equipment, materials, and articles installed or used without the Project Engineer, or Project Manager’s approval are at the risk of subsequent rejection. The Contractor shall be responsible for materials delivered and Work performed until completion and final acceptance of the entire construction thereof. The Contractor shall bear the risk of injury, loss or damage to any and all parts of the Work for whatever cause, whether arising from the execution or from the non-execution of Work. The Contractor shall rebuild, repair or restore Work and materials which have been damaged or destroyed from any causes before completion and acceptance of the Work and shall bear the expense thereof. The Contractor shall provide security and drainage and erect temporary structures as necessary to protect the Work and materials from damage. The Contractor shall be responsible for materials not delivered to the site for which any progress payment has been made to the same extent as if the materials were so delivered. 5.15 SUBSTITUTION OF MATERIALS AND EQUIPMENT: After the award of the Contract, the Contractor may ask for substitution of specified material or equipment with equal or equivalent, or superior items only under the Page 262 of 436 28 following circumstances: (i) The Contractor provides evidence to the Project Engineer, or Project Manager, that, in the Project Engineer, or Project Manager’s sole opinion, establishes that an item of specified material is not available; (ii) the Contractor provides evidence to the Project Engineer, or Project Manager, that, in the Project Engineer, or Project Manager’s sole opinion, establishes that the specified item will have an unreasonable delivery time due to no fault of the Contractor; or (iii) acceptance of such substitution would result in a significant saving to the Owner without materially impairing the quality or performance of the Work. If any of these circumstances exist, the Contractor shall request approval for a substitution at least thirty (30) days before the material or equipment must be ordered. All requests for substitutions shall be made in writing as part of a submittal. The request shall describe all features of the requested substitution including any tie-in with other elements of the Work, including utilities and controls along with the size and capacity of substitute materials or equipment. The request must be submitted on a form provided by or otherwise acceptable to the Project Engineer, or Project Manager, and shall list all differences from the product described in the Specifications, include the price of the specified item and the requested substitution, and describe any advantages or disadvantages of the proposed substitution. The Contractor shall be responsible for any effect upon related Work in the Project of any substitution and shall pay any additional cost resulting from or relating to any substitution. If the “equal or equivalent” material or equipment costs less than that specified, the Contractor shall so state in its request for substitution and, if the Owner accepts the proposed substitution, it may issue a Change Order to reduce the Contract Price by the amount of the direct cost savings without markup to the Contractor. If the equal or equivalent material or equipment is accepted for unavailability or unreasonable delivery time due to no fault of the Contractor, the Owner may, if appropriate, issue a Change Order to increase the Contract Price by the resulting actual, direct cost increase, if any, to the Contractor, without markup. 5.16 CUTTING AND PATCHING: The Contractor shall be responsible for all cutting, fitting, or patching that may be required to complete the Work, to make its several parts fit together properly or to tie the Work into other work that is shown in the Contract Documents. The Contractor shall organize and plan the Work to reduce to a minimum the need for cutting or otherwise modifying or removing load-bearing structural elements to accommodate the installation of other elements of the Work. If two or more contractors are doing work in the same place, the Contractor shall be responsible for the coordination effort needed to avoid or to reduce the amount of cutting, modifying or removing of structural elements to accomplish such work. However, if modification or removal of structural elements is required because the Work could not be organized and planned to avoid that need, the Contractor shall inform the Project Engineer, or Project Manager, of the need so that the consequences of such modification or removal of structural elements can be assessed. No structural element shall be cut, drilled, bored or otherwise modified unless cutting, drilling, boring or other modification is indicated in the Contract Documents. If the Contractor needs to modify a structural element from its original design, the Contractor must submit to the Project Engineer, or Project Manager, a request to make the modification. The request must provide complete details including all necessary calculations performed by a professional engineer licensed in the State of Colorado to show that the structural elements can still function as originally designed. The request must be accepted by the Project Engineer, or Project Manager, before any modification is made. The Contractor shall be responsible for all repair, replacement, and patching that is necessary to restore the Work, other property, or work of others damaged by the Contractor or Subcontractor. 5.17 SAMPLES AND TESTING: All materials and equipment used in the Project will be subject to sampling and testing by an independent testing company acceptable to the Owner according to generally accepted standards and as required in the Contract Documents. In the absence of direct references, the sampling and testing of materials will be done according to current specifications of the ASTM or the AWWA. The Contractor shall furnish all samples without charge. The Contractor will cooperate with the Project Engineer, or Project Manager, in collecting, handling, storing, and forwarding required samples including the furnishing of manpower and equipment when necessary. The Contractor will pay the cost of the initial test except when the Contract states otherwise. The Contractor will pay the costs for repeated tests due to failure of the initial test. The costs of any testing and retesting may be deducted from any payment due to the Contractor under the Contract. The Contractor will provide the Project Engineer, or Project Manager, at least twenty-four (24) hours prior notice for any inspection involving testing or sampling. The Contractor shall be responsible for testing of concrete and soils and, unless otherwise specified, the Contractor shall perform testing of all other materials and equipment. The Contractor shall provide the Project Engineer, or Page 263 of 436 29 Project Manager, with satisfactory proof of compliance with the requirements of the Contract Documents of any materials or equipment tested. Satisfactory proof of compliance shall be submitted in one or more of the following ways: a) Manufacturer’s Certificate of Compliance. For standard labeled stock products of standard manufacture that have a record of satisfactory performance in similar work over a period of not less than two (2) years, the Project Engineer, or Project Manager, may accept a notarized statement from the manufacturer certifying that the product conforms to the applicable specifications. b) Mill Certificates. For materials where such practice is the usual standard, the Project Engineer, or Project Manager, may accept the manufacturer’s certified mill and laboratory certificate. c) Testing Laboratory Certificates. The Project Engineer, or Project Manager, may accept a certificate from an independent commercial testing laboratory satisfactory certifying that the product has been tested within a period acceptable to the Project Engineer, or Project Manager, and that it conforms to the requirements of the Plans and Specifications. d) Report of Actual Laboratory Test. The Project Engineer, or Project Manager, may require that Contractor make actual tests of any product and submit a report of the specified test. Such test shall be made by a commercial testing laboratory satisfactory to the Project Engineer, or Project Manager, at the Contractor’s sole expense. 5.18 PROPERTY RIGHTS IN MATERIALS: The Contractor shall have no property right in materials after they have been attached, affixed or incorporated in the Work or the soil, or after payment has been made by the Owner to the Contractor for materials delivered to the site of the Work or stored subject to or under the control of Owner. Article 6. CHANGES IN THE WORK 6.1 CHANGES AND INCREASED OR DECREASED QUANTITIES OF WORK 6.1.1 General - The Contractor shall perform the Work, as changed by any Change Order, as if originally specified. All changes shall be accomplished by either a written Change Order or a written Field Order issued in accordance with these General Conditions. If a Field Order is used, a Change Order will be executed when the terms of the change are agreed upon. Changes to the Contract Price and Contract Time are authorized only by Change Orders approved in conformance with the Owner’s adopted purchasing policies. Without invalidating the Contract, the Project Engineer, or Project Manager, and/or Owner reserves and shall have the right, without notice to any Sureties, by written Change Order, to make any changes, from time to time, to the character and quantity of the Work, including but not limited to, the Drawings, Specifications, Plans or Addenda, as may be considered necessary or desirable to complete fully and acceptably the proposed Contract in a satisfactory manner. Such Change Order shall set forth with specificity the changed Work to be done and shall set forth any changes or extensions to the time of completion. The total of all such Change Orders associated with a project shall not, whether for additional work or items for use upon/within the project, increase the total cost of the Contract, based on the original estimate of quantities and unit prices contained in the Proposal, by more than 10%. Contractor shall be entitled to the cost of said increased units at the original Proposal price, but not to an adjustment of unit price. In the event the total cost of all such Change Orders associated with a project increases the total cost of the Contract by more than 10%, an equitable adjustment will be made and the Contract modified accordingly by a written Supplemental Agreement, provided, however, that except for claims based on errors in the Contract, no claim for change hereunder will be allowed for costs incurred more than 20 days before the Contractor gives written notice as herein required; and in the case of errors in the Contract for which the Owner is responsible, the adjustment will be increased costs, reasonably incurred by the Contractor in attempting to comply with such errors in the Contract Any plan of action, method of work, or construction procedure suggested orally or in writing to the Contractor by any employee, agent or representative of the Owner, which is not set out in approved Change Orders or Field Orders issued in accordance with the Contract Documents, if adopted or followed by the Contractor in whole or in part, shall be performed at the Contractor’s sole risk and responsibility. No change order, or other form of order or directive by the Owner’s representative which requires additional compensable work to be performed, and which work causes the aggregate amount payable under this contract to exceed the amount appropriated for the original contract, shall be executed, or shall work be performed by the contractor, unless the Owner first gives written notice to the Contractor that lawful Page 264 of 436 30 appropriations to cover the costs of such additional work have been made or unless such work is covered under a remedy-granting provision of this contract. For purposes of this paragraph, "remedy-granting provision" shall be defined as set forth in 24-91-103.6(4), C.R.S. The Contractor shall not start Work on any alteration requiring a Supplemental Agreement until the Agreement setting forth the adjusted prices has been executed by the Owner and the Contractor. All changes or approvals for increasing the Work as required and authorized herein, shall be in written form and approved and signed by the Project Engineer, or Project Manager, prior to the Work being done. All such writings and approvals shall be specific as to the nature of the Work and the quantities involved. Any Work performed without prior written approval of the Project Engineer, or Project Manager, shall not be binding on the Owner. The Contractor may not treat any order, statement or conduct of the Project Engineer, or Project Manager, as a change under this article nor become entitled to an equitable adjustment in the Contract Price or Contract Time except as provided in this article. Claims for changes in the Contract Price or Contract Time of Performance will not be considered after the Final Payment has been made. Change Orders involving an increase in the Contract Price must be authorized in accordance with the City’s adopted purchasing policy, a copy of which is available upon request. Such purchasing policy provides that the total of all such Change Orders associated with a project that increases the total cost of the Contract by more than 10% must be approved by a supplemental agreement. 6.1.2 Owner Change Request - The Owner may, without notification to any Surety, require the Contractor to perform additive or deductive changes to the Work within the general scope of the Project without invalidating the Contract or any Bond. When the Owner desires to initiate a change, the Project Engineer, or Project Manager, will issue a change request informing the Contractor of the proposed change in the Work, and requesting the Contractor’s detailed price proposal for such change. The Contractor, at no expense to the Owner and within the time period specified in the Change Request, shall provide the Project Engineer, or Project Manager, with a complete and itemized proposal for the change in the Work, which shall include the estimated increase or decrease in the Contract Price or Contract Time. Such increase or decrease shall be based on the criteria and methods described in these General Conditions. The Contractor shall be responsible for any delays in the Work and any additional costs to the Owner caused by the Contractor’s failure to submit a complete price proposal within the time provided. The Contractor shall participate with the Owner in prompt joint analysis and negotiations to finalize a Change Order. The issuance of a Change Request by the Owner is not a prerequisite to the issuance of a Field Order. 6.1.3 Field Orders - The Project Engineer, or Project Manager, may make changes in the details of the Project at any time, by issuing a Field Order. Upon receipt of a Field Order, the Contractor shall promptly sign the Field Order and return it to the Project Engineer, or Project Manager, and shall promptly proceed with performing the change in the Work. The Field Order shall not involve an increase or decrease in the Contract amount and not involve a change in the time for completion. A Field Order may be used when: a) The Owner determines that the Contractor must proceed immediately to perform a change in the Work in order to avoid an adverse impact on the schedule or other work, or to avoid or correct a situation where the health or safety of persons may be affected, and sufficient time is not available to negotiate a Change Order; or b) The Owner and Contractor have not completed their negotiation and reached agreement on all of the terms of a Change Order, but the Owner requires the Contractor to proceed without such agreement. If the Contractor believes that such Field Order entitles it to a change in Contract Price or Contract Time, or both, the Contractor shall give the Project Engineer, or Project Manager, written notice within five (5) days after the receipt of the Field Order. Within twenty (20) days after receiving the Field Order, the Contractor shall provide the Project Engineer, or Project Manager, with a complete and itemized proposal that includes the estimated increase or decrease in the Contract Price or Contract Time, or both, attributable to the changes based on the criteria and methods described in these General Conditions. The Contractor shall be responsible for delays to the Work and any additional costs incurred by the Owner caused by its failure to submit complete pricing information within the time provided above. Page 265 of 436 31 a) If the maximum cost of the change in the Work to be performed under a Field Order has not been agreed upon and reduced to writing in the actual Field Order, or if such change is not fully described under a Unit Price set forth in the Contract Documents or the Field Order, the Contractor shall proceed with such Work on a time and materials basis. b) Whenever Work is performed on a time and materials basis, the Contractor shall fully document all costs associated with such Work. Beginning with the first day such Work is performed and on a daily basis thereafter, the Contractor shall submit to the Project Engineer, or Project Manager, a daily itemization of all such costs in such form as the Project Engineer, or Project Manager, may require. c) The final Contract adjustment for Field Order changes in the Work performed on a time and materials basis shall be calculated in accordance with these General Conditions. When the Owner and the Contractor reach agreement on an adjustment to the Contract Price or Contract Time, or both as appropriate, such agreement shall be promptly executed as a Change Order. If the Owner requires Contractor to perform additional compensable work under a Field Order prior to executing a Change Order, the Contractor shall submit its costs to perform the work as periodically completed in its monthly application for payment, and Owner shall reimburse such costs, subject to retainage and any applicable withholding. In no instance shall the Owner be required to periodically reimburse Contractor for such additional compensable work prior to Contractor submitting to Owner an estimate of the cost of the additional compensable work to be performed. 6.1.4 Contractor Change Requests - If the Contractor: (i) receives any instructions, interpretations or directives which it believes are at variance with the Contract Documents or would require the Contractor to accelerate or decelerate the Work; or (ii) identifies what it believes are errors or omissions of any kind, including design errors or omissions, in the Drawings or Specifications; or (iii) encounters a differing site condition; or (iv) is delayed in performing the Work; or (v) becomes aware of any other matter or circumstance that the Contractor believes might require a change in the Contract Documents, Contract Time, or Contract Price, the Contractor shall give the Project Engineer, or Project Manager, prompt written notice of such matter and request a Change Order in a document identified as a “Contractor Change Request.” Following submission of a Contractor Change Request, the Contractor shall diligently continue performance of the Contract to the maximum extent possible. All Contractor Change Requests shall be dated, numbered sequentially, and shall describe the action or event that the Contractor believes may require the issuance of a Change Order. The Contractor shall also provide a description of possible Contractor actions or solutions to minimize the cost of the Contractor Change Request and, when possible, provide an estimate of the adjustment in the Contract Time and Contract Price which the Contractor believes is appropriate. a) With respect to orders, instructions, directives, interpretations, determinations, or the discovery of any errors or omissions in the Contract Documents, a Contractor Change Request shall be submitted before the Contractor acts on them, but in no event more than five (5) days after they have been, or reasonably should have been, received or discovered. b) With respect to any differing site conditions, a Contractor Change Request shall be submitted before the conditions are disturbed, but in no event more than five (5) days after the conditions are first discovered or reasonably should have first been discovered. c) With respect to delays, as set out in these General Conditions, a Contractor Change Request shall be submitted as soon as the Contractor becomes aware, or reasonably should have become aware, of the delay, but in no event more than five (5) days therefrom. d) With respect to any other matter or circumstance that the Contractor believes would require a change, a Contractor Change Request shall be submitted as soon as the Contractor reasonably has knowledge of the matter or circumstance, but in no event more than five (5) days after the Contractor becomes aware, or reasonably should have become aware, of such circumstance or matter. 6.1.5 Submittal Requirements and Waiver of Claims a) If the Contractor does not submit a Contractor Change Request within the time required by these General Conditions, any action by the Contractor related to such order, direction, instruction, interpretation, determination, design error or omission, or other matter, including delays or differing site conditions, will not be considered by the Owner as a change to the Work and the Contractor waives any claim for an adjustment on the Contract Price or the Contract Time. b) The Contractor shall, within ten (10) days after submitting a Contractor Change Request, provide the Project Engineer, or Project Manager, with a complete and itemized proposal that Page 266 of 436 32 sets out as specifically as practicable the requested adjustments to Contract Price, Contract Time, or other Contract provisions, and contains the other information described in these General Conditions. c) The proposal shall also contain a detailed explanation, citing all applicable provisions in the Contract Documents that support the Contractor Change Request. If the Contractor does not submit its itemized proposal for a Change Order within the time described above or within such extension that the Project Engineer, or Project Manager, in his or her discretion may have granted in writing, the Contractor waives any claim for an adjustment in the Contract Price or Contract Time arising out of the act or event giving rise to or necessitating a Contractor Change Request. d) The Contractor shall furnish, upon request, all additional information and data that the Project Engineer, or Project Manager, determines is needed to assist the Owner in evaluating and resolving the Contractor Change Request through negotiation. The Contractor shall give the Owner access to its books, correspondence, records, electronic data bases and files, and other materials relating to the work described in the Contractor Change Request, shall require its Subcontractors and Suppliers to provide the Owner with such access, and shall make its personnel and that of its Subcontractors and Suppliers available to discuss and answer cost, schedule, and other questions related to such request. Clear and legible copies of all necessary supporting records shall be provided to the Owner at no cost. Failure to submit requested information may be a basis for denial of the request. e) In the event the Contractor is ordered to perform Work under this Section for which payments are not determined hereunder, which in the opinion of the Owner it is impracticable to have performed by the Contractor's own employees, the Contractor will, subject to the approval of the Owner, be paid the actual cost to him of such Work and, in addition thereto, an amount of ten (10) percent of the actual costs to cover the Contractor’s superintendence, administration and other overhead expenses. The terms and conditions of any subcontract which the Contractor may propose to enter into in connection with Work under the provisions of this Section, shall be subject to the written approval of the Owner before such subcontract is made. f) In cases other than those described above, the Owner and the Contractor (on his own behalf and on behalf of their Subcontractors) shall endeavor to negotiate a reasonable Contract price and line adjustment in a Change Order on terms appropriate to the changed Work. The Contractor will be required to submit a sufficiently detailed price proposal supported with sufficient documentation so that the Owner can determine that (1) the proposal reflects all impacts on the Contract from Work additions, deletions and modifications shown in the change order being priced, and (2) the proposed prices are set out in such a way that their reasonableness can be evaluated against prices based on adequate price competition, Proposal unit prices, established catalog or market prices of commercial items sold in substantial quantities to the general public, prices set by law or regulation, recognized published price lists and indices, independently developed cost estimate and other appropriate price comparisons and (3) Contract provisions relating to Contract changes costing over $100,000.00 are complied with. If any prices or other aspects are conditional, such as on firm orders being made by a certain date or the occurrence or non-occurrence of an event, the Contractor shall identify these aspects in his Proposal. A negotiated Change Order shall set out prices, scheduling requirements, time extensions and all costs of any nature arising out of the issuance of a Change Order except for those cost and time aspects explicitly reserved on the face of the Change Order. g) In the event the Contractor and the Owner are unable to agree upon the Contractor's entitlement to an equitable adjustment or upon the amount thereof, or in the event that it is in the best interest of the Owner to have the Work proceed pending negotiation of amount of an equitable adjustment, the Owner may direct the Contractor to perform the Work in accordance with the Change Order, direction, instruction, interpretation, or determination, with any Contract price adjustments and progress payments for the Work to be determined on a Force Account basis in accordance with Section 1.5. The Contractor shall continue diligently to perform the Contract in accordance with the Owner's order, direction, instruction, interpretation, or determination during negotiations with respect to the Contractor's entitlement to an equitable adjustment hereunder or to the amount of any Contract price adjustment hereunder or to the amount or any Contract price adjustment or time extension. The Contractor and the Owner may agree on certain aspects of an equitable adjustment and take those aspects out of operation of Force Account provisions. h) For Change Orders, the Owner, or its representative shall have the audit and inspection rights as described below:  Where the agreed payment method for any Contract changes is to be by cost reimbursement, time and material, labor, hours, or any combination thereof, the Contractor shall maintain and the Owner or its representatives shall have the right to examine books, records, documents and other evidence and accounting principles and Page 267 of 436 33 practices sufficient to reflect properly all direct and indirect costs of whatever nature claimed to have been incurred and anticipated to be incurred for the performance of the Contract changes under this Subsection.  Contract changes exceeding $100,000.00 in costs: For submitted cost and pricing data in connection with pricing a Contract modification referred to in this Subsection, unless such pricing is based on Proposal unit prices, adequate price competition, established catalog or market prices of commercial items sold in substantial quantities to the public, or prices set by law or regulation, the Owner or his representatives shall have the right to examine all books, records, documents and other data of the Contractor related to the negotiation of or performance under the Contract Change Orders for the purpose of evaluating the accuracy, completeness and currency of the cost or pricing data submitted. The right of examination shall extend to all documents necessary to permit adequate evaluation of the cost or pricing data submitted, along with the computations and projections used therein.  Contract changes exceeding $10,000.00 but not $100,000.00 in costs: The Owner or his representatives prior to the execution of any Contract Change order in this Subsection or for a period of twelve months after execution shall, unless such pricing is based on Proposal unit prices, adequate price competition, established catalog of market prices of commercial items sold in substantial quantities to the public, or prices set by law or regulation, have the right to examine all books, records, documents, and other data of the Contractor relating to the negotiation and Contract Change Order for the purpose of evaluating the accuracy, completeness, and currency of the data submitted upon which negotiation is or has been based. To the extent the examination reveals inaccurate, incomplete or non-current data, the Contracting Officer may renegotiate the Contract Change Order price based on such data.  Contract changes of less than $10,000.00 in costs: The Owner may require from the Contractor appropriate documentation to support the prices being negotiated for Contract changes under this Subsection, and may refuse to complete negotiation until satisfactory documentation is submitted. i) For the purpose of this Section, costs shall include fines which would be assessed if extension(s) of time were not granted by Contract Change Order. j) The requirements of this audits and records section are in addition to other audit, inspection and record keeping provisions elsewhere in the Contract documents. k) Changes involving aggregate increases and decreases in excess of $100,000.00 shall be subject to the following:  A change involves aggregate increases and decreases in excess of $100,000.00 if the total value of Work affected, without regard to any increases or decreases, exceeds this amount; for example, a Change Order adding Work in the amount of $75,000.00 and deleting Work in the amount of $50,000.00 will be considered to involve aggregate increases and decreases of $125,000.00.  The Contractor shall submit in support of all items not based upon unit prices or lump sum prices contained in the Contract or upon the established prices at which commercial items are sold in substantial quantities to the public, statements by his vendors that the prices charged the Contractor are not greater than the prices charged by the respective vendors to their most favored customers for the same items in similar quantities.  Price reductions for defective cost or pricing data--price adjustments: If any price, including profit and fee, negotiated in connection with any price adjustment was increased by any significant sums because: (1) The Contractor furnished cost or pricing data which were not complete, accurate, and current as certified in the contractor's certificate of current cost or pricing data; or (2) Adjustments or any subcontract provisions therein required, furnished costs or pricing data which were not complete, accurate, and current as certified in the Subcontractor's certificate of current cost or pricing data; or (3) The Subcontractor or his prospective subcontractor furnished cost or pricing data which were required to be complete, accurate, and current and to be submitted to support a subcontract cost estimate furnished by the Contractor but which were not complete, accurate and current; or (4) The Contractor or a Subcontractor or his prospective subcontractor furnished any data, which were not complete, accurate, and current as submitted; (5) Then the price shall be reduced accordingly and the Contract shall be modified in writing accordingly to reflect such reduction. Any reduction in the Contract price due to defective subcontract data of prospective subcontractor, when the subcontract was not subsequently awarded to such subcontractor, will be limited to the amount (plus applicable overhead and profit markup) by which the actual subcontract, was less than the prospective subcontract cost estimate submitted by the Contractor, Page 268 of 436 34 provided the actual subcontract price was not affected by defective cost or pricing data; or (6) The Contractor shall require Subcontractors to certify to the best of their knowledge and belief that the cost and pricing data submitted are accurate, complete, and current as of the date of execution, which date shall be as close as possible to the date of agreement on the negotiated price of the Contract Change Order. l) In case a satisfactory adjustment in price cannot be reached for any item requiring a Supplemental Agreement, the Owner reserves the right to terminate the Contract as to said item as it applies to the terms in question and make such arrangements as may be deemed necessary to complete the Work. Should any of the changes, not requiring Supplemental Agreements, be made as provided herein, the Contractor shall perform the Work as altered, increased or decreased at the Contract unit price or prices. 6.1.6 Claims for Concealed or Unknown Conditions - If conditions are encountered at the site which are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or (2) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then notice by the observing party shall be given to the other party promptly before conditions are disturbed and in no event later than seven (7) days after first observance of the conditions. Site conditions which an experienced and prudent contractor could have anticipated by visiting the site, familiarizing himself with the local conditions under which the work is to be performed and correlating his observations with the requirements of the Contract Documents shall not be considered as claims for concealed or unknown conditions, nor shall the locations of utilities which differ from locations provided by the utility companies. The Project Engineer, or Project Manager, will promptly investigate such conditions and, if they differ materially and cause an increase or decrease in the Contractor’s cost of, or the required time for, performance of any part of the Work, will recommend an equitable adjustment in the Contract Sum or Contract Time, or both. If the Project Engineer, or Project Manager, determines that the conditions at the site are not materially different from those indicated in the Contract Documents and that no change in the terms of the Contract is justified, the Project Engineer, or Project Manager, shall so notify the Owner and Contractor in writing, stating the reasons. Claims by either party in opposition to such determination must be made within twenty-one (21) days after the Project Engineer, or Project Manager, has given notice of the decision. If the Owner and Contractor cannot agree on an adjustment in the Contract Sum or Contract Time, the adjustment shall be subject to further proceedings pursuant to Section 1.3.8 and Section 1.3.10. Such sections shall apply to claims by either party, notwithstanding language in said sections that they apply only to claims brought by the Contractor. 6.1.7 Specific Provisions for Delay-Based Contractor Change Requests - If the Contractor Change Request is based in whole or in part on a delay of any kind or nature, the complete itemized proposal shall include the following information in addition to all other required information: a) The date, nature, and circumstances of each event regarded as a cause of the delay; b) The names of all individuals acting on behalf of the Owner who are known or believed by the Contractor to have direct knowledge of the delay; c) If the Contractor claims acceleration costs of scheduled performance or delivery, the basis upon which acceleration arose; d) The identification of any documents and the substance of any oral communications known to the Contractor which substantiate, refute, or concern such delay; e) A Critical Path Method (CPM) schedule corrected to reflect actual performance, showing delay impacts as separate tasks and Contractor’s mitigation of such impacts; and f) The specific elements of Contract performance for which the Contractor may seek an equitable adjustment, including: 1) Identification of each Contract or schedule line item that has been or may be affected by such delay; 2) To the extent practicable, identification of the delay and disruption in the manner and sequence of performance, and the effect on continued performance, that have been or may be caused by such delay; 3) Identification of labor, materials, or both, or other cost items including overhead and Subcontractor costs, that have been or may be added, deleted, or wasted by such delay; 4) A statement that the Contractor is maintaining records by some generally accepted accounting procedure that allows the separately identifiable direct costs due to the delay, and those not incurred as a result of the delay, to be readily identified and segregated; 5) Estimates of the necessary adjustments to Contract Price, Contract Time and any other Contract provisions affected by the delay. Page 269 of 436 35 6.1.8 Determination by Project Engineer, or Project Manager. a) The Project Engineer, or Project Manager, shall respond in writing to any timely Contractor Change Request within ten (10) days of receipt of the complete and itemized proposal in support of the request. Failure of the Project Engineer, or Project Manager, to respond within such time period shall be deemed a denial of the Contractor Change Request unless the Project Engineer, or Project Manager, notifies the Contractor that additional time is necessary to review the Contractor Change Request. b) If a Contractor Change Request is denied by the Project Engineer, or Project Manager, in whole or in part, any claim for an increase in the Contract Price or Contract Time arising out of the act or event described in the Contractor Change Request is waived unless the Contractor timely submits a protest or dispute in accordance with these General Conditions. 6.2 ADJUSTMENT TO CONTRACT PRICE 6.2.1 Contract Price Adjustments - All adjustments to the Contract Price shall be determined by using one or more of the following methods in descending order: a) Unit Prices (as stated in the Contract Documents or subsequently agreed upon) multiplied by final verified quantities of work performed and subject to the requirements of paragraph 10.7 below. b) A negotiated lump sum. If requested by the Owner, the Contractor shall promptly provide itemized and sufficient substantiating data, including calculations, measurements, cost records, production rates, equipment types and capacity, labor costs by craft and other information that the Owner may reasonably require the Contractor to produce in order to permit the Owner to evaluate any lump sum Contractor Change Request. In pricing such Bids, the Contractor shall include estimates of the type of costs described in this article. c) Costs as determined in a manner previously agreed upon by the Parties, which include markups that do not exceed those described in this article. d) Time and Material costs as determined in the manner described in this article. These amounts may be reduced where necessary to take into account the cost of base Work, Work included in approved Change Orders, Work described in other Field Orders, idle time for workers and/or equipment when Work could have been performed in other locations or when the number of workers or amount of equipment provided exceeded the number or amount required to perform the Work, unsatisfactory Work, or Work that may be or was performed concurrently with the changed Work and which cannot be easily segregated from the changed Work. 6.2.2 Calculation of the Contract Adjustment - In no event shall the charge or credit to the Owner associated with any change exceed the sum of the following: a) Direct Labor. The actual net, direct increase or decrease in the cost of the Contractor’s labor. Such cost shall include only the cost associated with the workers who actually perform the changed Work. The cost of supervision, management and field or office overhead shall not be included or calculated as a direct labor cost. For shop work, the direct labor cost shall include only those workers who work directly on the item being manufactured or the actual operators of the equipment being used to handle the items being manufactured. b) Labor Burden. Contractor’s actual costs for worker’s compensation and liability insurance, payroll taxes, social security and employees’ fringe benefits (including employer paid health insurance) imposed on the basis of payrolls, and any other benefits provided to employees (including under any applicable collective bargaining agreement). This burden must reflect the variability of some burdens, i.e., social security. The burden shall be itemized and include all small tools and miscellaneous supplies. The total labor burden for such small tools shall not exceed two percent (2%) of the Direct Labor cost. c) Direct Material, Supplies, Installed Equipment. The actual net, direct cost of materials, supplies and equipment incorporated into or consumed by the Work. If actual costs are not available, this cost shall be the lowest commercially available price including all discounts, rebates, shipping and restocking charges, and applicable taxes. Such cost shall be based on buying the material, supplies and equipment in the largest practical quantity to receive quantity discounts. d) Equipment Costs. Without markup or operator, the lesser of (i) the actual net cost to the Contractor of owned or rented equipment, other than small tools; or (ii) the rental rate for such equipment as determined by using the following method(s):  Equipment rental rates listed in the appropriate rental rate book currently in use by CDOT. If an item of equipment does not appear in the rental rate book currently in use by CDOT, the rental rates published by the Associated Equipment Dealers may be used as a basis for negotiating a rental rate for a particular piece of equipment. The Contractor shall provide all information necessary to determine the appropriate rental rate at the time the equipment is brought on the job. Page 270 of 436 36  Rental equipment costs shall be determined using actual invoiced rates, less all discounts for basic equipment rental.  Mobilization/demobilization costs will be paid if the equipment is mobilized for Work described in a Change Order and is not otherwise to be mobilized or demobilized for the Work at the time. If the equipment is also used on Base Contract Work, no mobilization or demobilization cost will be paid. Mobilization/demobilization costs will be based on using the least expensive means to mobilize or demobilize. Equipment shall be obtained from the nearest available source. When the least expensive methods are used, the costs shown in the actual invoice will be the basis for pricing. e) Mark Up for Overhead and Profit. The Contractor or Subcontractor of any tier who actually performs the Work shall be entitled to a reasonable markup of no more than ten percent (10%) on the actual costs for Direct Labor, Labor Burden, Direct Material, Supplies, Installed Equipment, and Equipment Costs, as described in this article. Bonds and insurance are compensated at direct cost without markup. f) Bonds, Insurance, Permits and Taxes. The actual increases or decreases in the cost of premiums for bonds and insurance, permit fees, and sales, use or similar taxes related to the Work. 6.2.3 Totals as Equitable Adjustment - The Contractor agrees that the total of the above items constitute an equitable adjustment for any and all costs or damages resulting from a change. 6.2.4 No Equitable Adjustment for Obstruction by Contractor - No equitable adjustment shall be made as a result of costs resulting from any act, hindrance, obstacle, obstruction, interference, or omission of the Contractor, its Subcontractors, Suppliers, or Surety, or any other entity or individual acting on behalf of the Contractor, or any Subcontractor, Supplier, or Surety. 6.2.5 Calculation of Certain Equitable Adjustments - in case of delay in completion of the entire Contract due to drawings, designs or specifications that are defective and for which the Owner is responsible, the equitable adjustment for delays or costs incurred prior to notification to the Owner of such defect shall only include the extra cost and time reasonably incurred by the Contractor in attempting to comply with the defective drawings, designs or specifications before the Contractor identified, or reasonably should have identified, such defect. An equitable adjustment shall not include increased costs for delay resulting from the Contractor’s failure to continue performance during determination of any Contractor Change Request or claim. 6.2.6 Price Reductions for Defective Cost or Pricing Data - If it is later determined that pricing adjustments to the Contract were not correct due to incomplete or inaccurate pricing data by the Contractor or any Subcontractor or Supplier or that lower prices were reasonably available, the price shall be reduced accordingly and the Contract Price modified by an appropriate Change Order. 6.2.7 Variations in Estimated Quantities - The Contractor shall understand that the quantities set forth on the Statement of Work, the Proposal or other Contract documents are only approximate and that during the progress of the work, the Owner may find it advisable and shall have the right to omit portions of the work and to increase or decrease the quantities and reserves the right to add to or take from any items as may be deemed necessary or desirable. Under no circumstances or conditions will the Contractor be paid anything on account of anticipated profits upon the work or any portion thereof covered by the Contract which is not actually performed. Where the quantity of a Unit Price pay item in the Contract is an estimated quantity and where the actual quantity of such pay item varies more than 25% below the estimated quantity stated in the Contract, the Contractor shall make an equitable adjustment in the Contract Price, upon demand of the Owner. The Contract Price adjustment will be based upon any decrease in costs due solely to the variation below 75% of the estimated quantity. Where the quantity of a Unit Price pay item in the Contract is an estimated quantity and the actual quantity of such pay item is more than 25% above the estimated quantity in the Contract, the Owner may elect to terminate the Contract for convenience or issue a Change Order to adjust the Contract Price. The Contract Price adjustment will be based upon any increase in costs due solely to the variation above 125% of the estimated quantity. If the quantity variation is such as to cause an increase in the time necessary for completing the Work, the Contractor may request, in writing, an extension of time in accordance with these General Conditions. Page 271 of 436 37 6.2.8 Disposition of Excess or Obsolete Property - When the cost of materials, supplies, equipment or other personal property made obsolete or excess as a result of a delay is included in the equitable adjustment, the Project Engineer, or Project Manager, shall have the right to prescribe the manner of disposition of such property. 6.3 OMITTED ITEMS: The Project Engineer, or Project Manager, may, in writing, order omitted from the Work any item other than Major Items, which are found by the Project Engineer, or Project Manager, or Owner to be unnecessary to the Project and such omission shall not be a waiver of any condition of the Contract nor invalidate any of the provisions thereof. Major Items may be omitted by Supplemental Agreements. The Contractor will be paid for all Work done toward the completion of the item prior to such omission as provided in Section 7-5. 6.4 WORK NOT SPECIFIED BUT INCLUDED: Any work not specifically set forth in the Plans and Specifications but which may be fairly implied as included in the opinion of the Project Engineer, or Project Manager, shall be done by the Contractor without extra charge. 6.5 EXTRA WORK--FORCE ACCOUNT: When Work is necessary for the proper completion of the Project for which no quantities or prices were given in the Proposal or Contract, the same shall be called Extra Work and shall be performed by the Contractor when so directed in writing by the Project Engineer, or Project Manager. Extra Work shall be performed by the Contractor in accordance with these Specifications in a skillful and workmanlike manner and as may be directed by the Project Engineer, or Project Manager. Prices for Extra Work shall be itemized and covered by a Supplemental Agreement in accordance with paragraph 3.6 above. Any supplemental agreement must be approved by the Owner prior to the actual starting of such Work. Should the parties be unable to agree on unit prices for the Extra Work or if this method of pricing is impractical, the Project Engineer, or Project Manager, may instruct the Contractor to proceed with the Work by day labor or Force Account as hereinafter provided in Section 7-6. Claims for Extra Work not authorized in writing by the Project Engineer, or Project Manager, prior to the Work being done will be rejected and shall not be compensated for. Extra Work shall not include materials, labor or equipment which is incidental or appurtenant to the Work indicated on the Drawings and in the Specifications. Such Work shall be completed and paid for as part of the Work to which it is appurtenant. 6.6 UNAUTHORIZED WORK: Work performed beyond the lines and grades shown on the Contract Drawings, approved Work and Shop Drawings and Extra Work done without written authorization will be considered unauthorized Work and the Contractor will receive no compensation therefore. If required by the Owner, unauthorized Work shall be remedied, removed or replaced by the Contractor at Contractor's expense. Upon failure of the Contractor to remedy, remove or replace unauthorized Work, the Owner may take action as provided in Section 2.9 Inspection. Article 7. SUBCONTRACTORS, SUPPLIERS AND PERSONNEL 7.1 SUBCONTRACTORS: The Contractor may use the services of specialty Subcontractors on those parts of the Work which, under normal contracting practices, are performed by specialty Subcontractors. 7.1.1 No Subcontracting - The Contractor shall not sublet or subcontract any portion of the Work to be done under the Contract to any Subcontractor or Supplier not identified in the Proposal until approval of such action has been obtained from the Owner. The Owner may disapprove of a Subcontractor for any reason deemed appropriate by the Project Engineer, or Project Manager, including without limitation: a) Default on a contract within the last five (5) years; b) Default on a contract that required that a surety complete the contract under payment or performance bonds issued by the surety; c) Debarment within the last five (5) years by a public entity or any organization that has formal debarment proceedings; d) Significant or repeated violations of Federal Safety Regulations (OSHA); e) Failure to have the specific qualifications listed in the Contract Documents for the work that the Subcontractor will perform; f) Failure to have the required Owner or Colorado licenses to perform the work described in the subcontract; g) Failure to pay workers the proper wage and benefits or to pay suppliers or subcontractors with reasonable promptness within the last five (5) years; h) Conviction, plea of nolo contendere, entry into a formal agreement admitting guilt or entry of a plea of guilty or otherwise admitting culpability to criminal offenses of bribery, kickbacks, collusive proposing, bid-rigging, anti-trust, fraud, undue influence, theft, racketeering, extortion or any offense of a similar nature in connection with Subcontractor’s business, on Page 272 of 436 38 the part of Subcontractor’s principal owners, officers, or employees, within the last five (5) years; i) Failure to pay taxes or fees; j) Evidence that the Subcontractor was selected by the Contractor through the process of Proposal shopping, dishonesty or buyout. 7.1.2 Rejection of Subcontractor - Rejection or acceptance of any Subcontractor shall not create in that Subcontractor a right to any subcontract or the right to perform any portion of the Work, nor shall acceptance or rejection relieve the Contractor of its responsibilities for the work of any Subcontractor. 7.1.3 Contractor Supervision - The Contractor shall also supervise, direct and be responsible for all work performed by its Subcontractors, their agents and employees and other persons performing any of the Work under a contract with the Contractor, Subcontractors of any tier, or Suppliers of any tier. The Contractor is fully responsible to the Owner for the acts and omissions of its Subcontractors, and of persons either directly or indirectly employed by them. 7.1.4 Contractor Obligations - The action or omission of any Subcontractor in violation of this Contract or any subcontract will not relieve the Contractor from any obligation under this Contract or at law. 7.1.5 Contractual Relationship - Nothing contained in the Contract or any exercise of rights under this Contract creates any contractual relationship or privity of contract tween any Subcontractor and the Owner. 7.1.6 Binding to Terms of Contract - The Contractor shall put appropriate provisions (including the indemnity and insurance provisions) in all Subcontracts relative to the Work to bind Subcontractors to the terms of the Contract insofar as applicable to the work of Subcontractors (even if not specifically required here), and to give the Contractor the same power to terminate any Subcontractor that the Owner may exercise over the Contractor. 7.1.7 Guarantees - The Contractor shall specifically stipulate in all Subcontractor or Supplier contracts and purchase order forms for all materials and systems that the guarantee period begins with the date of Substantial Completion. The Contractor shall, during the course of the Work, specifically instruct Subcontractors and Suppliers that all written guarantees, that are due to be submitted to the Owner, shall indicate the initiation of the guarantee period as being the date of Substantial Completion. 7.1.8 Availability of Contract Documents - The Contractor shall make available to each proposed Subcontractor, before the execution of the subcontract, complete and accurate copies of the Contract Documents to which the Subcontractor will be bound, and, upon written request of the Subcontractor, identify to the Subcontractor terms and conditions of the proposed subcontract agreement which may be at variance with the Contract Documents. Subcontractors shall similarly make copies of applicable portions of such documents available to their respective proposed Subcontractors. 7.2 WORKFORCE: The Contractor shall assign an adequate number of qualified, competent workers to each task to complete the Work on schedule and in accordance with the Contract Documents. 7.2.1 Corrective Action Plan - If the Owner believes that the Work is not proceeding satisfactorily or may not be satisfactorily completed by the Completion Date, the Project Engineer, or Project Manager, may, by letter to the Contractor, require the Contractor to submit a corrective action plan identifying steps to be taken, at no additional cost to the Owner, to raise the rate of progress to an acceptable level. 7.2.2 Competent Personnel - Competent personnel with experience and skills adequate for the assigned tasks are an absolute necessity for job safety and for the performance of quality work. The Contractor and any Subcontractor shall employ only foremen and workers skilled in the Work requiring special qualifications. The Contractor shall reassign or remove from the Project all personnel who are requested to be reassigned or removed by the Project Engineer, or Project Manager, or who are incompetent, uncooperative, refuse to comply with safety requirements, or are otherwise unfit to perform the assigned task. No increase in Contract Time or Contract Price is authorized as a result of the Owner’s exercise of this section. 7.3 ILLEGAL ALIENS AS LABORERS: The Contractor shall not knowingly employ or contract with an illegal alien to perform work under this contract nor enter into a contract with a subcontractor that fails to certify to the contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this contract. 7.3.1 Confirmation of Eligibility - The Contractor shall confirm or attempt to confirm the employment eligibility of all employees who are newly hired for employment in the United States through participation in the E-Verify Program. If the Contractor is not accepted into the E-Verify Program prior to executing this contract for services, the Contractor shall apply to participate in the E-Verify Program every three months until the contractor is accepted or this contract has been completed, whichever occurs first. This paragraph Page 273 of 436 39 shall not be effective if the E-Verify Program is discontinued. 7.3.2 Certification - The Contractor certifies that, as of the Effective Date, it does not knowingly employ or contract with an illegal alien who will perform work under this Contract and that the Contractor will participate in the E-verify Program or Department Program as defined in C.R.S. § 8-17.5-37 in order to confirm the eligibility of all employees who are newly hired to perform work under this Contract. 7.3.3 Notification of Owner and Subcontractor - If the Contractor obtains actual knowledge that a Subcontractor performing work under this Contract knowingly employs or contracts with an illegal alien, the Contractor will:  Notify the Subcontractor and the Owner within three (3) days that the Contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and  Terminate the subcontract with the Subcontractor if within three (3) days of receiving the notice required pursuant to this subparagraph d the Subcontractor does not stop employing or contracting with the illegal alien; provided, however, that the Contractor will not terminate the contract with the Subcontractor if during such three (3) days the Subcontractor provides information to establish that the Subcontractor has not knowingly employed or contracted with an illegal alien. 7.3.4 Complying With Investigation - The contractor must comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to C.R.S. 8-17.5-102(2). 7.3.5 Violation. If the Contractor violates this Section, the Owner may terminate this Contract for breach of contract and the Contractor will be liable for actual and consequential damages to the Owner. 7.3.6 Verification of Lawful Presence (C.R.S. § 24-76.5-103). (a) If the Contractor is a natural person, including a sole proprietor with or without employees (i.e., not a corporation, limited liability company, partnership or similar entity), and is 18 years of age or older, the Contractor must: (a) complete an affidavit containing the information required by C.R.S. § 24-76.5-103(4)(b); and (b) attach a photocopy of the front and back of a valid form of identification as required by C.R.S. § 24-76.5-103(4)(a). (b) If the Contractor executes the affidavit stating that he/she is an alien lawfully present in the United States, the Owner will verify his/her lawful presence through the federal systematic alien verification or entitlement program, known as the “SAVE Program,” operated by the U.S. Department of Homeland Security (“DHS”) or a successor program designated by DHS. If the Owner determines through the verification process that the Contractor is an alien not lawfully present in the United States, the Owner will terminate this Agreement without further obligation to Contractor. 7.4 PERSONNEL & CIVIL RIGHTS 7.4.1 Colorado Labor (C.R.S. § 8-17-101) - At least eighty percent (80%) of each type or class of labor employed by the Contractor and any Subcontractors to perform the Work shall be persons who, at time of employment, are residents of the State of Colorado, without discrimination as to race, color, creed, gender or sex, age, religion, national origin, veteran’s status or religion, except when minimum age is a bona fide occupational qualification. The Project Engineer, or Project Manager, if requested in writing by the Contractor and approved by the Project Engineer, or Project Manager, in writing, may waive this requirement in accordance with C.R.S. § 8-17-101. 7.4.2 Anti-Discrimination - While engaged in the performance of the Work, Contractor shall maintain employment practices consistent with the Colorado Antidiscrimination Act, C.R.S. § 24-34-301 through § 24-34-804, as amended. The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The Contractor will take affirmative action to ensure applicants are employed, and employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. 7.4.3 Civil Rights - In compliance with the Civil Rights Act of 1964, coupled with the Colorado Governor’s Executive Order dated July 6, 1972, Contractor, for itself and its assignees and successors in interest, agree as follows: (a) When applicable, the Contractor shall comply with the Regulations of the Department of Page 274 of 436 40 Transportation relative to nondiscrimination in Federally assisted programs of the Department of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the “Regulations”), which are herein incorporated by reference and made a part of this Contract. Contractor shall not participate either directly or indirectly in discrimination prohibited by Section 21.5 of the Regulations including employment practices when the Contract covers a program set forth in Appendix “C” of the Regulations. (b) The Contractor, with regard to the Work performed by it after award and prior to completion of the Work, shall not discriminate on the grounds of race, creed, color, gender or sex, age, religion, veteran status, national origin or ancestry in the selection and retention of Subcontractors, including procurements of materials and leases of equipment. (c) In all solicitations either by competitive Bid or negotiation made by Contractor for work to be performed under a subcontract, including procurements of materials or equipment, each potential Subcontractor or Supplier shall be notified by Contractor of Contractor’s obligations under this Contract and the regulations related to nondiscrimination on the grounds of race, creed, color, gender or sex, age, religion, veteran status, national origin or ancestry. (d) The Contractor shall take all affirmative actions necessary and appropriate to implement, not only the letter but also the spirit, of the policy of equality of opportunity as enunciated in the Constitution and the laws of the State of Colorado and as construed by the courts to prevent discrimination because of race, creed, color, gender or sex, age, religion, handicap, veterans status, national origin or ancestry. (e) The Contractor shall include the provisions of these subsections 1 through 5 in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, orders or instructions issued pursuant thereto. The Contractor shall take such action with respect to any subcontract or procurement as the Owner may direct as a means of enforcing such provisions; provided, however, that in the event the Contractor becomes involved in, or is threatened with, litigation with a Subcontractor or supplier as a result of such direction, the Contractor may request the Owner to enter into such litigation to protect the interest(s) of the Owner. 7.4.4 Americans with Disabilities Act - The Owner makes every attempt to comply with the Americans with Disabilities Act and requires all contractors to be aware of this law and to report immediately to the Project Engineer, or Project Manager, any requests or complaints based upon the Americans with Disabilities Act. This requirement applies to persons or groups who have identified themselves as disabled, or as someone with whom they associate as disabled, and who require a special accommodation. Article 8. INSPECTIONS; CORRECTIONS OF DEFECTS 8.1 DEFECTIVE WORK AND MATERIALS: Material and workmanship not conforming to the requirements of the Contract are deemed defective. The Contractor shall bear all costs of investigating and correcting such defective Work and materials, which includes design efforts necessary to correct such Work. 8.1.1 Determination of Defects - Whether or not the Work is defective will be determined by comparing it to the Contract Drawings, Specifications, accepted Shop Drawings and manufacturer’s literature and further measuring it against the standard of quality implied by the Contractor’s warranty. Also, should the appearance and performance of any element of the Work fail to conform to standards of the trade for such Work, that Work may be declared defective. 8.1.2 Repair and Removal of Defects - Defects discovered by any inspection process or testing, or otherwise made apparent during the Work, shall be repaired, removed, or replaced by the Contractor, at no cost to the Owner, as identified. The Owner shall have the right to charge the Contractor for its costs of re-inspecting the Work after the defective Work is corrected and any costs of verifying or determining the existence of latent defects 8.1.3 Failure to Repair or Remove Defects - If the Contractor fails to replace rejected materials or Work within ten (10) days after receipt of written notice, the Owner may replace or correct them and charge the cost to the Contractor and may terminate the right of the Contractor to proceed. 8.1.4 Failure to Detect Defects - Failure to detect previously installed defective materials or workmanship shall not impair the Owner’s right to receive the completed Work, which is free of defects and meets all of the requirements of the Contract Documents. Nothing in this section shall limit the Owner’s right to seek recovery for latent defects that are not observable until after any warranty or guaranty periods have run. 8.2 SUBSTITUTED PERFORMANCE: If the Contractor’s failure of exact performance does not appear to the Page 275 of 436 41 Owner to be deliberate or willful and if the Owner concludes that less than exact performance in some minor part of the Work will not result in a decrease in quality in the entire Work, the Owner may, at its sole option, accept substituted performance. Should the Owner accept substituted performance, the cost of the Work shall be reduced by the sum of money that the Owner determines to be a reasonable consideration for less than exact performance and the Owner may, at its discretion, require separate warranties for any substituted performance. 8.3 AUTHORITY AND DUTIES OF INSPECTORS: All Work shall be subject to inspection and testing by the Project Engineer, or Project Manager, Owner or their agent at all reasonable times and at all places prior to acceptance. Inspectors, employed by the Owner, are authorized to inspect all Work done and all material furnished. Such inspection may extend to all of any part of the Work and to the preparation, fabrication, or manufacture of the materials to be used. The Inspector is not authorized to revoke, alter, or waive any requirements of the Plans and Specifications. The Inspector is authorized to call to the attention of the Contractor any failure of the Work or materials to conform to the Specifications and Contract Documents. 8.3.1 Inspector Authority - The Inspector shall have the authority to reject materials or suspend the Work until any question at issue can be referred to and decided by the Project Engineer, or Project Manager. If the Contractor refuses to suspend operations on verbal order, the Inspector shall issue a written order giving the reason for shutting down the Work. After placing the order in the hands of the manager in charge, the Inspector shall immediately leave the job. Work done during the absence of the Inspector will not be accepted nor paid for. 8.3.2 Contractor Obligations - Inspections by the Project Engineer, or Project Manager, or the Owner, or any of their representatives, or others shall not relieve the Contractor from his obligations to perform the Work in accordance with the requirements of the Contract Documents and to also inspect his own Work. 8.3.3 Limitations of Inspector - The Inspector shall in no case act as foreman or perform other duties for the Contractor nor interfere with the management of the Work by the latter. Any advice which the Inspector may give the Contractor shall in no way be construed as binding to the Project Engineer, or Project Manager, in any way, or releasing the Contractor from fulfilling any of the terms of the Contract. 8.4 INSPECTION: Drawings and specifications defining the Work were prepared on the basis of interpretation by design professionals of information derived from investigations of the Work site. Such information and data are subject to sampling errors, and the interpretation of the information and data depends to a degree on the judgment of the design professional. Information about the degree of difficulty of the Work to be done cannot totally be derived from either the Drawings or Specifications or from the Project Engineer, or Project Manager. The Contractor shall not be entitled to an adjustment to the Contract Time or Contract Price for any condition that was or would have been evident at the time of a pre-Proposal site inspection. By executing the Contract, the Contractor represents that they have visited the site if and to the extent it believed necessary, familiarized itself with the location and conditions under which the Work is to be performed, and correlated its observations with the requirements of the Contract Documents. 8.4.1 Duties of Contractor - Contractor shall promptly, before such conditions are further disturbed, notify the Project Engineer, or Project Manager, in writing of: • Subsurface or latent physical conditions at the Work site differing materially from those indicated in the Contract; or • Unknown physical conditions at the Work site, of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract. 8.4.2 Duties of the Owner - Upon receipt of written notification from the Contractor of alleged differing site conditions, the Owner shall promptly investigate the conditions. If the Owner finds that the conditions materially differ and could not have been discovered, or reasonably inferred, from the Contract Documents or a thorough inspection of the Work site by the Contractor, and such conditions cause an increase or decrease in the Contractor’s cost of or the time required for performance of any related part of the Work under the Contract, an adjustment to the Contract Time or Contract Price, or both, may be made through a Change Order. 8.4.3 All Work Subject to Inspection - Until final payment, all parts of the work may be subject to inspection and testing by Owner or its designated representatives. Contractor may furnish, at its own expense, all reasonable access, assistance, and facilities required by Owner for such inspection and testing. The Contractor may furnish the Project Engineer, or Project Manager, with every reasonable facility for ascertaining whether or not the Work performed and materials used are in accordance with the requirements and intent of the Specifications and Contract. In the event of night Work, the Contractor may Page 276 of 436 42 furnish proper lighting to adequately perform and inspect the Work being performed. If the Project Engineer, or Project Manager, requests it, the Contractor may, at any time before acceptance of the Work, remove or uncover such portion of the finished Work as may be directed. After examination, the Contractor may restore said portions of the Work to the standard required by the Specifications. Should the Work thus exposed or examined prove acceptable, the uncovering, or removing, and the replacing of the coverage or making good of the parts removed, may be paid for as Extra Work; but should the Work so exposed or examined prove unacceptable, the uncovering, or removing, and the replacing of the covering or making good of the parts removed, shall be at the Contractor's expense. Any Work done or materials used by the Contractor without suitable supervision or inspection by the Project Engineer, or Project Manager, or his authorized representative may be ordered removed and replaced at the Contractor's expense. 8.4.4 Prompt Remedy - If Contractor does not promptly replace rejected material or correct rejected workmanship the Owner may: (a) by separate Contract or otherwise, replace such material or correct such workmanship and charge the cost thereof to the Contractor, or (b) terminate the Contractor's right to proceed in accordance with this Agreement pursuant to Section 6.9. Such inspection and test is for the sole benefit of Owner and may not relieve Contractor of the responsibility of providing quality control measures to assure that the Work strictly complies with the Contract. No inspection or test by the Owner, Project Engineer, or Project Manager, or their agent may be construed as constituting or implying acceptance. Inspection or test may not relieve Contractor of responsibility for damage to or loss of the material prior to acceptance, nor in any way affect the continuing rights of the Owner after acceptance of the completed Work. 8.4.5 Work Outside Normal Work Day - Any Work outside the normal five (5) day, forty (40) hour week may require the Project Engineer, or Project Manager, or Inspector on the job. All inspection so required shall be done at the Contractor's expense and the cost thereof may be deducted from the final payment. Overtime inspection may be done by the Owner at the Contractor's expense at $50.00 per hour. The payment by the Contractor of overtime inspection fees may not relieve the Contractor from the liquidated damages provisions as specified in Section 6-8 herein. 8.4.6 Change Order - If the Contractor has not fully complied with the notice and submittal requirements of this section or any part of the General Conditions pertaining to Change Orders, with particular attention to not disturbing the site prior to allowing the Owner to investigate the conditions, the Contractor shall be deemed to have waived its right to assert a claim for differing site conditions. 8.4.7 No Claim After Final Payment - No claim will be allowed under this section if Final Payment has been made. 8.5 REMOVAL OF DEFECTIVE AND UNAUTHORIZED WORK: All Work which has been rejected or condemned by Owner or Project Engineer, or Project Manager, shall be repaired, or if it cannot be satisfactorily repaired, be removed and replaced at the Contractor's expense. Work done without lines and grades having been given, Work done beyond the lines and grades shown on the Plans, or as given, except as herein provided, Work done without giving timely notice to the Project Engineer, or Project Manager, so the Project Engineer, or Project Manager, may, if he/she wishes, be present to observe the Work in progress, or any Extra or unclassified Work done without written authority and prior Agreement in writing as to prices, will be done at the Contractor's risk and will be considered unauthorized and at the option of the Project Engineer, or Project Manager, may not be measured and paid for and may be ordered removed and replaced at the Contractor's expense. Upon the failure of the Contractor to satisfactorily repair or to remove and replace, if so directed, rejected, unauthorized, or condemned Work immediately after receiving formal notice from the Project Engineer, or Project Manager, the Owner may, at its sole option, recover for such defective Work on the Contractor's bond or by action in a court having proper jurisdiction over such matters, or may employ labor and equipment and satisfactorily repair or remove and replace such Work and charge the cost of the same to the Contractor, which cost will be deducted from any money due him/her. 8.6 GEOTECHNICAL AND OTHER DESIGN PROFESSIONAL REPORTS, INVESTIGATIONS & TESTS: The Contractor acknowledges that certain soils reports, borings, and other geotechnical data, more particularly described or referenced in the Specifications of the Contract, have been made available for inspection and review. The borings were made for the use of the Owner in the design of the Project and are not intended to be interpreted for use in temporary construction facilities designed by the Contractor. The Owner in no way warrants the accuracy or reliability of said borings and other geotechnical data or of the data, information or interpretations contained in said soils reports, and is not responsible for any deduction, interpretation, or conclusion drawn therefrom by the Contractor. Said soil reports may contain interpretations by design professionals of borings and geotechnical data obtained at the Work site. Such borings and geotechnical data are subject to sampling errors, and any interpretations or conclusions based on such borings and data depend to a degree on the judgment of the design professionals. Page 277 of 436 43 The Contractor agrees that it will make no claims against the Owner if, in performing the Work, it finds that the actual conditions encountered do not conform to those indicated by said soil reports, borings and other geotechnical data, or those reasonably inferred therefrom or reasonably discoverable by a thorough inspection of the site by the Contractor. Article 9. PROTECTION OF PERSONS, PROPERTY AND ENVIRONMENT 9.1 PROTECTION OF PERSONS: The Contractor is responsible for the health and safety of all persons on or at the Work site and shall take all necessary and reasonable precautions and actions to protect all such persons from injury, death, or loss. 9.1.1 Safety Working Conditions - The Contractor and any Subcontractor shall not require any laborer, mechanic or other person employed in performance of the Work to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous to health or safety. The Contractor and all Subcontractors shall comply with all applicable safety rules and regulations adopted by the United States Department of Labor Occupational Safety and Health Administration (OSHA), the Industrial Commission of the State of Colorado or the City of Englewood, whichever is most restrictive. The Owner assumes no duty to ensure that the Contractor follows the safety regulations issued by OSHA or the State of Colorado. 9.1.2 Protective Devices and Precautions - The Contractor shall provide all necessary protective devices and safety precautions. Such devices and precautions may include but are not limited to: posting of danger signs and warnings against hazards such as, but not limited to, hoists, well holes, elevator hatchways, scaffolding, openings, stairways, trip and fall hazards and falling materials; placement of warning flares; equipment back-up alarms; installation of barricades; promulgation and application of safety regulations and employment of safety personnel and guards. Signs will not be considered to be an adequate substitute for physical protective barriers. The costs of all protective devices and the planning and implementing of safety precautions are considered to be included in the Unit Prices, even if not specified. If, in the opinion of the Project Engineer, or Project Manager, the Contractor has not supplied necessary and adequate barricades, warnings, or other safety devices, then the Owner may order additional devices and deduct the cost from the Contractor's payment. By taking such action, the Owner assumes no liability for the adequacy of such barricades, warnings or other safety devices. 9.1.3 Underground Work - For operations involving trenching, excavation or any other underground construction, the Contractor’s attention is specifically directed to and its work shall conform to the latest revision of the Construction Safety and Health Regulations, Part P Subparagraph 1926.6013-6016 by OSHA, as amended. 9.1.4 Protection of the Public - The Contractor and all Subcontractors shall always, whether or not so specifically directed by the Project Engineer, or Project Manager, take necessary precautions to ensure the protection of the public. The Contractor shall furnish, erect, and maintain at its own expense all necessary precautions for the protection of the Work and safety of the public through and around its construction operations. 9.1.5 Subcontractor - The Contractor shall make the provisions of this section a condition of each contract with any Subcontractor. 9.2 PROTECTION OF PROPERTY: The Contractor shall continuously take all reasonable precautions to protect from damage, injury or loss, all or any part of the Work and all or any part of materials or equipment to be incorporated in the Work, whether in storage on or off the Work site, under the care, custody, control of the Contractor or any Subcontractor or Supplier. The Contractor shall repair or replace at its expense any such damage, injury or loss, except such as may be directly due to error in the Contract or caused by agents or employees of the Owner. The Contractor shall provide and maintain at its expense all passageways, barricades, guard fences, lights, and other protection facilities required by any regulatory agency or public authority or local conditions. The Contractor is responsible for protection of all public and private property on and adjacent to any site of the Work. The Contractor shall use every precaution necessary to prevent damage to curbs, sidewalks, driveways, trees, shrubs, sod, mailboxes, fences, and other private and public improvements. The Contractor shall protect carefully from disturbance or damage all land monuments and property markers until an authorized agent has witnessed or otherwise referenced their locations, and shall not remove them until directed. Page 278 of 436 44 9.3 PROTECTION OF HISTORICAL SITES: When the Contractor’s operations encounter remains of prehistoric peoples, dwelling sites or artifacts of historical, archeological, or paleo-logical significance, the Contractor shall temporarily discontinue such operations and immediately advise the Project Engineer, or Project Manager. The Project Engineer, or Project Manager, will contact archeological authorities to determine the disposition of the items in question. When directed, the Contractor shall excavate the site in such a manner as to preserve the artifacts encountered and remove them for delivery to the custody of the proper authorities. Such excavation is considered, and paid for, as extra Work. 9.4 RESPONSIBILITY TO REPAIR: When any direct or indirect damage or injury is done to any public or private property or utility by or on account of any act, omission, neglect or misconduct in the execution of the Work, the Contractor shall restore the damaged property at its own expense to a condition equal to or better than that existing before such damage or injury. If any existing property is damaged in the Work as a result of Contractor’s non-performance, the Contractor shall immediately notify the property owner. The Contractor shall not attempt to make repairs unless authorized in writing by the property owner or directed by the Project Engineer, or Project Manager. Written authorization from the owner to make repairs must be so worded as to save the Owner harmless from any responsibility whatsoever relative to the sufficiency of the repairs. The Contractor shall give the Project Engineer, or Project Manager, a copy of the written authorization to make repairs. The Contractor shall replace any materials and equipment lost, stolen, damaged or otherwise rendered useless during the performance of Work on the Project. At the Contractor’s cost, the Owner may undertake any such repair or replacement required by this section when the Contractor fails to do so within a reasonable time. The Owner may deduct any such cost from any payment due the Contract or may recover such costs from the Contractor or the Surety. 9.5 TRAFFIC CONTROL: Unless the Contract specifically provides for the closing to traffic of any local road or highway while construction is in progress, such road or highway shall be kept open to all traffic by the Contractor. The Contractor shall also provide and maintain in a safe condition temporary approaches, crossings or intersections with roads and highways. The Contractor shall bear all expense of maintaining traffic over the section of road affected by the Work to be done under this Contract, and of constructing and maintaining such approaches, crossings, intersections and any accessory features without direct compensation, except as otherwise provided. The Contractor shall arrange Work to disrupt traffic as little as possible. All traffic Control Devices used shall conform to the latest edition of the Manual of Uniform Traffic Control Devices (MUTCD). Except as otherwise permitted, two way traffic shall be maintained at all times in public roadways. The Contractor shall provide, erect and maintain all necessary barricades, signs, danger signals and lights for the protection of the Work and the safety of the public. All barricades, signs and obstructions erected by the Contractor shall be illuminated at night and all devices for this purpose shall be kept illuminated from sunset to sunrise. The Contractor shall be held responsible for all damage to the Work due to failure of barricades, signs, lights and watchman to protect it, and whenever evidence of such damage is found prior to acceptance, the Project Engineer, or Project Manager, may order the damaged portion immediately removed and replaced by the Contractor without cost to the Owner if, in the opinion of the Project Engineer, or Project Manager, such action is justified. The Contractor's responsibility for the maintenance of barricades, signs and lights shall not cease until the Project has been accepted. 9.5.1 Closure of Street or Alley - No street or alley shall be closed to the public by the Contractor except as authorized by the City Traffic Engineer and in accordance with procedures outlined herein. Whenever, in the prosecution of the work, the Contractor finds it necessary to close a street to traffic, he/she shall advise the Police and Fire Departments forty-eight (48) hours in advance of the time when the street will require closing. The forty-eight (48) hour notice will be required in all cases involving the normal prosecution of the work and convenience of the Contractor. Twenty-four (24) hours prior to commencement of work, the Contractor shall furnish and install approved “No Parking” signs, giving day of the week; i.e. “No Parking in this block on Thursday.” At time of posting verbal notice of intent shall be given to occupants of premises involved. In cases of emergency, involving conditions over which the Contractor has no control, the street may be closed. In these cases, the Contractor is required to immediately notify the Police and Fire Departments and the City Traffic Engineer. 9.5.2 Detours - Wherever streets or alleys are closed as provide herein, it will be the sole responsibility of the Contractor to adequately mark and light the detours as determined by the Contractor and the City Traffic Engineer after consultation with the Police and Fire Departments, City Traffic Engineer, and in accordance with standard details indicated on plans for this project. The Contractor, at its cost, shall furnish and maintain all necessary signs, barricades, lights, and flaggers necessary to control traffic and provide for safety of the public, all in compliance with the MUTCD with subsequent revisions and additions, and to the satisfaction of the Public Works Director. No constructions signs shall be placed on sidewalks unless Page 279 of 436 45 construction is actually taking place on the sidewalk. During evening hours and when not in use, all signs shall be turned away from traffic and moved at least eight (8) feet away from the edge of the nearest traveled way. 9.5.3 Permission for Detours - Wherever detours are required over areas other than on established City streets, it shall be the responsibility of the Contractor to secure all necessary permission from the property owners involved, prior to establishing such detours. Traffic shall not be routed over such detour until it has been bladed and shaped in such a way as to provide a reasonably safe and convenient roadway to the traveling public. Full provision shall be made to the Contractor for minimizing inconvenience from dust. 9.5.4 Safe and Convenient Roadway - Where traffic is maintained along the street or alley under construction, particular care shall be used to shape and maintain the roadbed so that a safe and convenient roadway is available to the traveling public. Ramps from undisturbed streets into excavated areas shall be maintained for traffic on gradual grades and in no case shall a ramp be steeper than a 6:1 slope. The Contractor shall make full provisions for minimizing inconvenience from dust. Marking and lighting the route shall be in accordance with standard details indicated on the plans for the district. During periods when actual construction is not in progress, streets shall be properly maintained and dust control measures shall be employed. 9.5.5 Traffic Control Plan - At least seven (7) days before starting any Work in the City right-of-way, the Contractor shall submit a detailed traffic control plan for review by the City of Englewood Public Works Department, with a copy to the Police Department. The approval shall establish the requirements for closures related to the number of lanes and time of day lanes or streets may be closed in accordance with the MUTCD and other applicable criteria or regulations. The Traffic Control Plan (TC Plan) shall include the name of the Contractor, the name and phone number of the person responsible for the traffic control, the date for beginning and ending construction activity and hours of operation expected. The TC Plan should show the widths of streets involved, traffic lanes, the size and location of the Work area with distances from the curb, distance to the nearest intersection, detours, parking areas, access to private property, and the type and location of traffic control devices. No changes to the TC Plan shall be permitted without prior, written approval by the Public Works Director. The Contractor shall create its Traffic Control plans in concurrence with any Traffic Control requirements that may be specifically stated in the Special Conditions. 9.5.6 Need for Police Officer - Whenever a police officer is necessary for traffic control, the Contractor shall hire and pay a uniformed off-duty police officer with authority in the City to direct traffic. The police department will determine the rate of pay for the officers. 9.5.7 Incidents - The Owner may impose a price reduction charge for any recurrence of an incident under the TC Plan, after notification by the Project Engineer, or Project Manager, according to the following schedule. The price reduction charge will not be considered a penalty, but will be a price reduction for failure to perform traffic control in compliance with the Contract. For purposes of this section, an “incident” is any violation of the TC Plan lasting up to thirty (30) minutes; each successive or cumulative 30-minute period in violation of the TC Plan will be deemed a separate incident, as determined by the Project Engineer, or Project Manager. Incident Price Reduction Charge First None – Notice from Project Engineer, or Project Manager Second $150.00 Third $300.00 Fourth $600.00 Subsequent $1,200.00 9.6 PROTECTION OF STREET SIGNS, TRAFFIC SIGNS and SIGNALS: Street signs, traffic signs, signals and other traffic control devices erected by the City for information and to safeguard traffic must be protected by the Contractor. Where it is necessary to disturb or remove any of these items, the Contractor shall secure approval of the Traffic Engineer prior to any such work, this approval to be based on concurrence and requirements from the Traffic Engineer. 9.7 UTILITIES: The Contractor's attention is directed to the importance of protecting all public utilities encountered on all projects. Such utilities may include, but are not limited to: telephone, telegraph and power lines, water lines, sewer lines, gas lines, railroad tracks, and other overhead and underground utilities, cable television lines and facilities. Before any excavation is begun in the vicinity of water lines, railroad tracks or structures, sewer lines, cable television lines, gas lines or telephone conduits, each utility company concerned must be notified in Page 280 of 436 46 advance of such excavation, and such excavation shall not be made until an authorized representative of the utility company concerned is on the ground and has designated the location of their facilities. The Contractor shall support, and protect from injury, until completion of the Work any existing power lines, telephone lines, water mains, gas mains, sewers, storm sewers, cables, conduits, ditches, curbs, walks, pavements, driveways, and other structures in the vicinity of the Work that are not authorized to be removed. 9.7.1 Utility Coordination - The Contractor shall schedule and coordinate all Work with any utilities. The Contractor shall cooperate with utility owners (including electrical, gas, communication, water, sewer and railroad) to mitigate damage (including relocation or removal) whenever the Contractor’s work affects their utilities. The Contractor shall seek to expedite the progress of such work and minimize duplication of work and disruption of services. 9.7.2 Minimize Disruption - The Contractor shall conduct its operations in such a manner as to minimize the inconvenience to the public due to disconnected utilities. The Contractor shall not disconnect any utility without prior approval of the affected utility and the Project Engineer, or Project Manager. Such utility shall then not be disconnected before 9:00 A.M. and service shall be restored by 4:00 P.M. of the same day. If the Contractor’s operations require or cause utility service to be disconnected beyond the time limits stated above, the Contractor shall make arrangements suitable to the Project Engineer, or Project Manager, to provide temporary utility service. Such temporary service shall be at Contractor’s expense. The Contractor shall notify all affected properties regarding any utility disconnection, forty-eight (48) hours prior to the disconnection. 9.7.3 Delays - The Owner will not be responsible or liable for any delay or other impact to the Work caused by the acts or omissions of any utility or related agency. 9.8 COORDINATION WITH ENGLEWOOD UTILITIES: The Contractor shall always coordinate its Work with the South Platte Water Renewal Partners (SPWRP) and the Englewood Utilities Department (EUD). If it becomes necessary to close portions of any water or sewer system due to construction operations, the Contractor will provide at least seventy-two (72) hours prior notice to SPWRP and EUD. SPWRP and EUD shall have authority to dictate requirements of the closure. It is the Contractor’s responsibility to ensure continuity of the utilities. 9.9 NOTIFICATION OF AFFECTED UTILITY AND PROPERTY OWNERS: The Contractor shall not excavate without first notifying all owners, operators, or association of owners and operators having underground facilities in the area of such excavation. Notice may be given in person, by telephone or in writing. Notice to an association is notice to each member of the association. The Contractor shall contact the Utility Notification Center of Colorado before the start of any excavating. The Contractor shall give such notice of the commencement, extent, and duration of the excavation work at least forty- eight (48) hours before beginning Work affecting the area. If the Project affects fences, landscaping, mailboxes, driveways or other improvements, the Contractor shall notify the affected property owners or occupants IN WRITING at least forty-eight (48) hours before beginning Work. The Contractor shall cooperate with the owners or occupants to reduce inconvenience where reasonably possible. 9.10 POLLUTION CONTROL: The Contractor shall comply with all applicable Federal, State and City ordinances, laws, orders, and regulations concerning the control, prevention, and abatement of water pollution and air pollution in all operations pertaining to the Contract whether on right-of-way provided by the City or elsewhere. (See Article 17, below). 9.10.1 Pollution Prevention - The Contractor shall use construction methods that prevent release, entrance or accidental spillage of solid matter, contaminants, debris, and other objectionable pollutants and wastes including, but not restricted to refuse, garbage, cement, concrete, sewage effluent, industrial waste, radioactive substances, oil and other petroleum products, aggregate processing tailings, mineral salts, and thermal pollution. Non-regulated solid wastes shall be disposed of by methods approved under applicable laws and regulations, including, the Resource Conservation and Recovery Act (RCRA), Subtitle D, as administered by Colorado and local Health Departments and the EPA. 9.10.2 Contaminated and Hazardous Materials - Contaminated and hazardous materials are regulated by RCRA, Subtitles C and D. The Contractor shall notify the Colorado Department of Public Health and Environment, local health departments, and local fire departments, and the Owner if suspect materials are encountered. 9.10.3 Prevention of Atmospheric Discharges - The Contractor shall utilize methods and devices that are reasonably available to control, prevent, and otherwise minimize atmospheric emissions or discharges of air contaminants including dust in its construction activities and operation of equipment. Page 281 of 436 47 9.10.4 Prevention of Dust Emission - The Contractor shall not emit dust into the atmosphere during any operations, including but not limited to: grading; excavating; manufacturing, handling or storing of aggregates; trenching; or cement or pozzolans. The Contractor shall use the necessary methods and equipment to collect, deposit, and prevent dust from its operations from damaging crops, orchards, fields or dwellings or causing a nuisance to persons. The Contractor is liable for any damage resulting from dust. 9.10.5 Excessive Exhaust Gases - The Contractor may not operate equipment and vehicles with excessive emission of exhaust gases due to improper mechanical adjustments, or other inefficient operating conditions, until repairs or adjustments are made. 9.10.6 Burning - Burning trash, rubbish, trees, brush or other combustible construction materials is not permitted unless the Contractor has obtained a valid burning permit issued by the Tri-County District Health Department or successor agency, and the local fire department. Any such burning shall be conducted in accordance with permit requirements. 9.10.7 De-Watering - De-watering for structure foundations or earthwork operations adjacent to or encroaching on lakes, streams or watercourses shall be done in a manner which prevents muddy water and eroded materials from entering the lakes, streams or watercourses, by construction of intercepting ditches, bypass channels, barriers, settling ponds or by other approved means. Excavated materials may not be deposited or stored in or alongside lakes or watercourses where they can be washed away by high water or storm runoff. 9.10.8 Wastewater Runoff - The Contractor will not allow wastewater from aggregate processing, concrete batching or other construction operations to enter lakes, streams, watercourses or other surface waters without turbidity control methods such as settling ponds, gravel-filter entrapment dikes, approved flocculation processes that are not harmful to fish, recirculation systems for washing of aggregates or other approved methods. Any wastewaters discharged into surface waters shall conform to applicable discharge standards of any agency having jurisdiction over the discharge, including the Colorado Department of Public Health and Environment and any federal agency. 9.11 PUBLIC CONVENIENCE AND SAFETY: The Contractor shall fully comply with all applicable Federal, State and local laws governing safety. He shall provide all safeguards, safety devices and protective equipment and take any other needed actions on his own responsibility reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the Work. Materials stored upon the site shall be so placed and the Work shall, at all times, be so conducted as to cause no greater obstruction to traffic than is considered necessary by the Project Engineer, or Project Manager. The Contractor shall give to the Project Engineer, or Project Manager, full information in advance as to his plans for carrying out any part of the work. If at any time before the beginning or during the progress of the work, any part of the Contractor’s plant or equipment or any of his methods of executing the work appear to the Project Engineer, or Project Manager, to be unsafe, inefficient, or inadequate to insure the required quality, rate of progress or safety of the work, he may order the Contractor to increase or improve his facilities or methods, and the Contractor shall promptly comply with such orders; but neither compliance with such orders nor failure of the Project Engineer, or Project Manager, to issue such orders shall relieve the Contractor from his obligation to secure the degree of safety, the quality or work, and the rate of progress required by this Contract. The approval by the Project Engineer, or Project Manager, of any plan or method of work proposed by the Contractor shall not be considered as an assumption by the City, or any officer, agent or employee thereof, of a risk or liability, and the Contractor shall have no claim under this Contract for the failure or inefficiency of any plan or method so approved. Such approval shall be considered and shall mean that the Project Engineer, or Project Manager, has no objection to the Contractor’s use or adoption, at his own risk and responsibility, of the plan or method so proposed by the Contractor. 9.12 USE OF EXPLOSIVES: When the use of explosives is necessary for the prosecution of the Work, the Contractor shall use the utmost care so as not to endanger life or property, and whenever directed by the Project Engineer, or Project Manager, the number and size of the charges shall be reduced. The Contractor shall notify the proper representatives of any public services corporation, the Owner, any company, or any individual at least ten (10) working days in advance of any blasting which may damage his or their property on, along, or adjacent to the site. The Contractor shall comply with the requirements of Title 9, Article 7 of the Colorado Revised Statutes, as amended, titled "Explosive Permits". The Contractor shall also be required, at a minimum, to notify the Denver Fire Department and the Englewood Police Department, the City and the surrounding properties. All explosives shall be stored in a secure manner and all storage places shall be marked clearly "DANGEROUS EXPLOSIVES," and shall be in care of competent watchmen at all times. 9.13 RESTORATION OF PROPERTY: The Contractor shall not enter upon private property for any purpose without first obtaining permission, and he shall be responsible for the preservation of all public and private property, sod, trees, Page 282 of 436 48 fences, monuments, underground structures, etc., on and adjacent to the site and shall use every precaution necessary to prevent damage or injury thereto. He shall protect carefully, from disturbance or damage, all land monuments and property markers until an authorized agent has witnessed or otherwise referenced their location, and shall not remove them until directed. 9.13.1 Responsibility for Damage - Contractor shall be responsible for all damage or injury to public or private property of any character resulting from any act, omission, neglect or misconduct in his manner, or method of executing said Work, or due to his non- execution of said Work, or at any time due to defective Work or materials, and said responsibility shall not be released until the Work shall have been completed and accepted. 9.13.2 Property Restoration - When or where any direct or indirect damage or injury is done to public or private property by or on account of any act, omission, neglect or misconduct in the execution of the Work, or in consequence of the non-execution thereof on the part of the Contractor, he shall restore, at his own expense, such property to a condition similar or equal to that existing before such damage or injury was done by repairing, rebuilding, or otherwise restoring, as may be directed, or he shall make good such damage or injury in an acceptable manner. In case of the failure on the part of the Contractor to restore such property or to have started action to make good such damage or injury, the Owner may upon forty- eight (48) hours of notice, proceed to repair, rebuild or otherwise restore such property as may be deemed necessary and the cost thereof will be deducted from any moneys due or which may become due the Contractor under the Contract or prosecuted as a claim against the Contractor's Surety Bond. 9.13.3 Insurance - The cost of insurance for damages due to Contractor's operation or cost of protecting utilities where required to permit construction under this Contract shall be included in the original Contract prices for the Project. Article 10. PERMITS AND LICENSES; COMPLIANCE WITH CURRENT LAWS 10.1 COMPLIANCE WITH LAWS, LICENSES AND PERMITS: The Contractor, shall at all times, observe and comply with all Federal, State and local laws, codes, ordinances, and regulations, which pertain to and affect the conduct of the Work, and the Contractor and his Surety shall indemnify and save harmless the Owner and all its officers, agents, employees, or any of their heirs, successors or assigns against any claim, judgment, demand, costs, liability or expenses, including, but not limited to, attorney's fees and costs of suit arising from or based on the violation of any such law, ordinance, regulations, order, or decree, whether such claim, judgment, demand, costs, liability or expenses arises from actions by himself, his employees, or agents or subcontractors.. 10.1.1 Adherence to City Policies - The Contractor and its employees, agents and Subcontractors, while performing the Work or while on City property for any reason during the Term, shall adhere to the City’s policies applicable to City employees regarding drugs, alcohol and workplace violence. 10.1.2 Licenses and Permits - The Contractor will obtain, at its cost, all licenses and permits required to do the Work by the City, county, state, federal, or other applicable law or regulation. Any costs incurred for these permits and licenses must be included in the unit costs set forth in the Proposal for the Work. A Subcontractor shall also have the proper permits applicable to the Work to be performed by the Subcontractor. 10.1.3 Contract Law - This Contract shall be governed by, construed and enforced under the laws of the State of Colorado, excluding statutes related to conflict of laws between different jurisdictions. 10.1.4 Contractor Liability - Nothing contained herein shall be deemed to create liability for the contractor for any design defects not managed by the Contractor. 10.1.5 Colorado State Statute: If this project is for a public works project or public project, as defined in Section 8-49-102(2) C.R.S. the contractor shall comply with 8-17-101 C.R.S. which requires the contractor to use at least eighty percent (80%) Colorado labor for any public works project financed in a whole or in part by State, counties, school districts, or municipal monies. Article 11. BONDS 11.1 BONDS: The Contractor shall, within the time specified in the Request for Bids, and before the commencement of any Work, provide the Owner with a separate: a) Performance bond in an amount equal to 100% of the amount of the Contract Price as a guarantee of the Contractor’s faithful performance and completion of all undertakings, covenants, terms, Page 283 of 436 49 conditions, warranties, and agreements of the Contract; and b) Payment bond in an amount equal to 100% of the amount of the Contract Price, which bond shall conform to the requirements of C.R.S. § 38-26-101, et seq., as amended, as a guarantee of the Contractor’s prompt payment to all persons supplying labor and materials in the prosecution of the Work provided by the Contract. 11.1.1 The Contractor shall use the Bond forms included with the Request for Bids. Other forms may be used if approved by the City Attorney before the submission of the Proposal. 11.1.2 The Contractor bears the expense of all Bonds. 11.1.3 The Contractor shall secure an increase in the bonds in an amount equal to the cost of any additional work authorized pursuant to a duly executed Change Order or Contract Amendment that increases the Contract Price by ten percent (10%) or more, unless waived in writing by the Project Engineer, or Project Manager. 11.1.4 The Contractor and a Surety shall execute the Bonds. The Surety shall be corporate bonding company acceptable to the Owner, licensed to transact such business in the State of Colorado, and listed in the U.S. Department of the Treasury Circular 570 in effect on the date of the Request for Bids. Evidence of authority of an attorney-in-fact acting for the Surety shall be provided in the form of a certificate as to its power of attorney and to the effect that it is not terminated and remains in full force and effect on the rate of the Bonds. 11.1.5 If at any time a Surety on any Bond becomes irresponsible, is disqualified from doing business in the State of Colorado, or becomes insolvent or otherwise impaired, the Contractor shall furnish Bond(s) from an alternate Surety acceptable to the Owner. 11.1.6 The Bonds shall remain in effect until Final Acceptance. Article 12. WARRANTY 12.1 SCOPE OF WARRANTY: Contractor shall guarantee and warranty that the work and all of its components shall remain in good order and repair, be free from defects and flaws in design, workmanship, and materials; shall strictly conform to the requirements of this contract; and shall be fit, sufficient and suitable for the purposes expressed in, or reasonably inferred from, this contract, for a period of two (2) years from all causes arising from defective workmanship and materials, and to make all repairs arising from said causes during such period without further compensation. The warranty herein expressed shall be in addition to any other warranties expressed or implied by law, which are hereby reserved unto Owner. In all emergencies the Contractor shall immediately remedy, repair, or replace, without cost to the Owner and to the entire satisfaction of the Owner, defects, damages or imperfections due to faulty materials or workmanship appearing in said Work within said period of not less than one year. Remedied Work shall carry the same warranty as the original Work starting with the date of acceptance of the replacement or repair. Payment to the Contractor will not relieve him of any obligation under this Contract. 12.1.1 Damage Remedies - The Contractor, at no additional expense to the Owner, shall also remedy damage to equipment, the site, or the buildings or the contents thereof which is the result of any failure or defect in the Work, and restore any Work damaged in fulfilling the requirements of the Contract. Should the Contractor fail to remedy any such failure or defect within a reasonable time after receipt of notice thereof, the Owner will have the right to replace, repair, or otherwise remedy such failure or defect at the Contractor's expense. The determination of the necessity for the repair or replacement of said project, and associated incidentals or any portion thereof, shall rest entirely with the Director of Public Works whose decision upon the matter shall be final and obligatory upon the Contractor. 12.1.2 Subcontractors, Manufacturers and Suppliers - Subcontractors', manufacturers', and suppliers' warranties and guarantees, expressed or implied, respecting any part of the Work and any material used therein shall be deemed obtained and shall be enforced by the Contractor for the benefit of the Owner without the necessity of separate transfer or assignment thereof. 12.1.3 Waiver - The rights and remedies of the Owner provided in this Section are in addition to and do not limit any rights and remedies afforded by the Contract or by law. The Contractor specifically waives all the provisions of Chapter 8 of Article 20 of Title 13, Colorado Revised Statutes regarding defects in the Work under the Contract. 12.2 OWNER'S RIGHT TO CORRECT: If, within five (5) business days after Owner gives Contractor notice of any defect, damage, flaw, unsuitability, nonconformity, or failure to meet a warranty subject to correction by Contractor pursuant to Section 3.1 or Section 3.2 of this contract, or the Contractor neglects to make, or undertake with due diligence to make, the necessary corrections, then Owner shall be entitled to make, either with its own forces or Page 284 of 436 50 with contract forces, the corrections and to recover from Contractor all resulting costs, expenses, losses, or damages, including attorneys' fees and administrative expenses. 12.3 NONEMERGENCY WARRANTY WORK: In cases of warranty work which is not an emergency, all necessary repairs shall be made within a reasonable time not to exceed twenty (20) days after notice of the required repair is received by the contractor. For those items of warranty work which cannot be completed within said twenty (20) day period, the parties shall negotiate a reasonable period of time. 12.4 PERFORMANCE DURING WARRANTY PERIOD: The Project Engineer, or Project Manager, will notify the Contractor of defective Work that is found to be defective and fails to satisfy the warranties and guarantees described in this article, or elsewhere in the Contract Documents, and the Contractor shall, within ten (10) days or such longer time as may be requested and set forth in the notice, commence the repair, replacement, or correction of the defective Work. If the Contractor fails to complete such Work within a reasonable period, the Owner may make the repairs or replacements at the expense of the Contractor. If the Owner determines that immediate action to make repairs, replacements or other corrections is necessary because of emergency conditions or to prevent further loss or damage, the Owner may proceed without notice to the Contractor, but at the expense of the Contractor. 12.4.1 Failure to Correct - If the Contractor does not proceed with the correction of such defective Work within the time fixed by written notice from the Project Engineer, or Project Manager, or if an emergency condition exists, the Owner may remove and store any defective materials or equipment at the expense of the Contractor. If the Contractor does not pay the cost of the removal and storage within ten (10) days thereafter, the Owner may, upon ten (10) additional days’ written notice, sell the stored Work at auction. If the proceeds of sale do not cover all costs that the Owner has incurred and which the Contractor should have borne, the difference shall be charged to the Contractor and the Contractor and its surety shall be liable for and pay such difference to the Owner. 12.4.2 Disputes - If the Contractor does not agree that the Work is defective or the defective Work is its responsibility and if no emergency condition exists, the Contractor may request review, in writing, of the Project Engineer, or Project Manager’s decision by the Director of Public Works, in accordance with these General Conditions. If such review is not requested within ten (10) days of the notification of defective Work, the Contractor shall have waived the right to contest its responsibility for the correction of the defective Work. Under emergency conditions, the Contractor shall immediately correct the alleged defective Work, and the question of responsibility for the expense shall be determined by the Project Engineer, or Project Manager, subject to the right of the Contractor to seek review within ten (10) days of the Owner’s notice allocating responsibility for the expense. 12.4.3 Extension of Warranty Period - Should the Owner claim by written communication sent or mailed before the warranty or guarantee period expires that certain defective Work exists and that it requires repair or replacement, the warranty and guarantee period shall be automatically extended for as long as the defective Work exists. Article 13. INSURANCE; RISK OF LOSS 13.1 GENERAL REQUIREMENTS 13.1.1 Insurance Requirement - The Contractor, at its own cost, shall procure and maintain, and shall cause each Subcontractor to procure and maintain, policies containing the minimum insurance coverage listed in this article for the duration of the Work. Such coverage shall be procured and maintained with forms and insurers acceptable to the Owner. All coverage shall be continuously maintained from the date of commencement of Work. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. The Contractor shall not commence work under this Agreement until it has obtained all insurance required by the contract documents and such insurance has been approved by Owner. The Contractor shall not allow any subcontractor to commence work on this project until all similar insurance required of the subcontractor has been obtained and approved. 13.1.2 No Modification of Liability - The Contractor shall not be relieved of any liability, claims, demands or other obligations assumed pursuant to the Contract Documents by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, durations, or types. The insurance requirements contained in the Contract shall not limit or redefine the obligations of the Contractor as provided elsewhere in the Contract. The limits of any insurance required by this Agreement will not limit Contractor’s liability. Page 285 of 436 51 13.1.3 Evidence of Coverage - Before commencing Work, the Contractor will provide certificates of insurance policies and all necessary endorsements evidencing insurance coverage required by the Contract Documents and identifying the Project. The Owner will not be obligated under the Contract until Contractor provides acceptable such certificates of insurance and endorsements. If the Term extends beyond the period of coverage for any required insurance, the Contractor will, at least ten (10) days before the expiration of any such insurance coverage, provide the Owner with new certificates of insurance and endorsements evidencing either new or continuing coverage. 13.1.4 Breach - Failure on the part of the Contractor to procure or maintain policies providing the required coverage, conditions, and minimum limits shall constitute a material breach of contract upon which the Owner at its discretion may procure or renew any such policy or any extended connection therewith, and all monies so paid by the Owner shall be repaid by Contractor to the Owner upon demand, or the Owner may offset the cost of the premiums against any monies due to Contractor from the Owner. 13.2 REQUIRED POLICIES AND LIMITS: The Contractor agrees to procure and maintain, at its own cost, the following policy or policies of insurance. The Contractor shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to the contract documents by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, durations, or types. Contractor shall procure and maintain, and shall cause each Subcontractor of the Contractor to procure and maintain (or shall insure the activity of Contractor's Subcontractors in Contractor's own policy with respect to), the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurers acceptable to the Owner. All coverages shall be continuously maintained from the date of commencement of the Work. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. 13.2.1 Workers' Compensation Insurance - This will cover obligations imposed by the Workers' Compensation Act of Colorado and any other applicable laws for any employee engaged in the performance of Work under this contract, and Employers' Liability insurance with minimum limits of Five Hundred Thousand Dollars ($500,000) each accident, Five Hundred Thousand Dollars ($500,000) disease - policy limit, and Five Hundred Thousand Dollars ($500,000) disease - each employee. 13.2.2 Commercial General Liability Insurance - Comprehensive general liability insurance insuring against any liability for personal injury, bodily injury or death arising out of the performance of the Work with at least Three Million Dollars ($3,000,000) each occurrence and Three Million Dollars ($3,000,000) general aggregate, including the following coverages: broad form property damage; operations premises liability; personal and advertising injury liability, independent contractors coverage, contractual liability, completed operations/products liability; coverage for construction, means, and methods; and explosion, collapse, and underground liability (if the Work requires blasting, explosive conditions, collapse hazards or underground operations, this coverage shall contain no exclusion relative to property in the care, custody, or control of the insured). 13.2.3 Products and Completed Operations Insurance - Products and completed operations insurance insuring against any liability for bodily injury or property damage caused by the completed Work, with a combined single limit of at least One Million Dollars ($1,000,000) and Two Million Dollars ($2,000,000) general aggregate. 13.2.4 Builder’s Risk - Builder's Risk insurance with minimum limits of not less than the insurable value of the work to be performed under this contract at completion less the value of the materials and equipment insured under installation floater insurance. The policy shall be written in completed value form and shall protect the Contractor and the Owner against risks of damage to buildings, structures, and materials and equipment not otherwise covered under Installation Floater insurance, from the perils of fire and lightning, the perils included in the standard coverage endorsement, and the perils of vandalism and malicious mischief. Equipment such as pumps, engine-generators, compressors, motors, switch-gear, transformers, panel boards, control equipment, and other similar equipment shall be insured under Installation Floater insurance when the aggregate value of the equipment exceeds $10,000. The policy shall provide for losses to be payable to the Contractor and the Owner as their interests may appear. The policy shall contain a provision that in the event of payment for any loss under the coverage provided, the insurance company shall have no rights of recovery against the Contractor or the Owner. 13.2.5 Comprehensive Automobile Liability Insurance - Comprehensive automobile liability insurance insuring against any liability for personal injury, bodily injury or death arising out of the use of motor vehicles and covering operations on or off the site of all motor vehicles controlled by Contractor that are used in connection with performance of the Work, whether the motor vehicles are owned, non-owned, Page 286 of 436 52 hired, leased, or borrowed, with a combined single limit of at least Two Million Dollars ($2,000,000) each occurrence, Two Million Dollars aggregate and personal injury protection per Colorado law. 13.2.6 Installation Floater – Floater with minimum limits of not less than the insurable value of the work to be performed under this contract at completion, less the value of the materials and equipment insured under Builder's Risk insurance. The value shall include the aggregate value of any City furnished equipment and materials to be erected or installed by the Contractor not otherwise insured under Builder's Risk insurance. The policy shall protect the Contractor and the Owner from all insurable risks of physical loss or damage to materials and equipment not otherwise covered under Builder's Risk insurance, while in warehouses or storage areas, during installation, during testing, and after the work under this contract is completed. The policy shall be of the "all risks" type, with coverages designed for the circumstances which may occur in the particular work to be performed under this contract. The policy shall provide for losses to be payable to the Contractor and the Owner as their interests may appear. The policy shall contain a provision that in the event of payment for any loss under the coverage provided, the insurance company shall have no rights of recovery against the Contractor or the Owner. 13.2.7 Other Insurance - Any other insurance required by applicable law. 13.3 TERMS OF INSURANCE 13.3.1 Additional Insured - Except for the workers’ compensation policy, all required insurance policies shall name the Owner, its officers and employees and any additional person or entity identified by the Owner as an additional insured and will provide that the Owner or other additional insured, although named as an additional insured, will nevertheless be entitled to recovery under said policies for any loss occasioned to the City or its officers, employees or agents or other additional insured by reason of the negligence of Contractor or its officers, employees, agents, subcontractors or business invitees. The insurance policies will be for the mutual and joint benefit and protection of the Contractor and the City and other additional insured, if any. Such policies will be written as primary policies not contributing to and not in excess of coverages the City or other additional insured may carry. Every policy required above shall be primary insurance, and any insurance carried by the Owner, its officers, or its employees, shall be excess and not contributory insurance to that provided by Contractor. The additional insured endorsement for the Comprehensive General Liability insurance required above shall not contain any exclusion for bodily injury or property damage arising from completed operations. The Contractor shall be solely responsible for any deductible losses under each of the policies required above. 13.3.2 Certificates of Insurance - Certificates shall be completed by the Contractor's insurance agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect, and shall be subject to review and approval by the Owner. Each certificate shall identify the Project. If the words "endeavor to" appear in the portion of the certificate addressing cancellation, those words shall be stricken from the certificate by the agent(s) completing the certificate. The Owner reserves the right to request and receive a certified copy of any policy and any endorsement thereto. 13.3.3 Qualification; Deductible - Insurance required by this Section will be with companies qualified to do business in the State of Colorado and having an AM Best Rating of not less than B+ and/or VII. Insurance may provide for deductible amounts as the Contractor deems reasonable for the Services, but in no event greater than Twenty Thousand Dollars ($20,000.00) (unless waived by the Owner), and the Contractor will be responsible for the payment of any such deductible. 13.3.4 Cancellation - The coverages afforded under the policies shall not be cancelled, terminated or materially changed until at least 30 days prior written notice has been given to the Owner. 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 the Owner may immediately terminate the contract, or at its discretion 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 the Owner shall be repaid by Contractor to the Owner upon demand, or the Owner may offset the cost of the premiums against any monies due to Contractor from the Owner. 13.3.5 Coverage Type - Contractor will identify whether the type of coverage is “occurrence” or “claims made.” If the type of coverage is “claims made,” which at renewal Contractor changes to “occurrence,” the Contractor will carry a twelve (12) month tail. The Contractor will not do or permit to be done anything that will invalidate the policies. 13.3.6 No “Pollution Exclusion.” - The required insurance will cover any and all damages, claims or suits Page 287 of 436 53 arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants, and will not exclude from coverage any liability or expense arising out of or related to any form of pollution, whether intentional or otherwise. If the Contractor is unable to procure a policy of insurance in compliance with these provisions, the Contractor will secure and maintain either a rider or a separate policy insuring against liability for pollution related damages, claims or suits, as described in subsection ii(a), with at least Two Million Dollars ($2,000,000) each occurrence, subject to approval by the Owner. 13.3.7 The parties hereto understand and agree that the Owner is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101 et seq., as from time to time amended, or otherwise available to the Owner, its officers, or its employees. Article 14. INDEMNIFICATION 14.1 CONTRACTOR TO OWNER: The Contractor shall, only to the extent and for an amount represented by the degree or percentage of negligence or fault attributable to the Contractor, indemnify, save harmless, and defend the City, its officers and employees, from and in all suits, actions or claims of any character brought because of: any injuries or damage received or sustained by any person, persons or property because of operations for the City under the Contract; the Contractor’s failure to comply with the provisions of the Contract; the Contractor’s neglect of materials while constructing the Work; because of any act or omission, neglect or misconduct of the Contractor; because of any claims or amounts recovered from any infringements of patent, trademark, or copyright, unless the design, device, materials or process involved are specifically required by Contract; from any claims or amount arising or recovered under the “Workers’ Compensation Act,” by reason of the Contractor’s failure to comply with the act; pollution or environmental liability; or any failure of the Contractor to comply with any other law, ordinance, order or decree. Nothing in this article requires the Contractor to defend, indemnify, or hold harmless the City from the City’s own negligence. 14.1.1 The Contractor will include this article in all Subcontracts. 14.1.2 The City may retain so much of the money due the Contractor under the Contract as the City considers necessary to offset any damages for which Contractor may be liable under this paragraph. If no money is due, the Contractor’s Surety may be held until such suits, actions, claims for injuries or damages have been settled. Money due the Contractor will not be withheld when the Contractor produces satisfactory evidence that it and the City are adequately protected by public liability and property damage insurance. 14.1.3 The Contractor will pay the City all expenses incurred to enforce this article. If the insurer of the Contractor fails to provide or pay for the defense of the City of Englewood, its officers and employees, as additional insured, the Contractor agrees to pay for the cost of that defense. 14.1.4 This article will survive Final Acceptance and the termination of this Contract. 14.2 OWNER TO CONTRACTOR: The City cannot, under Article XI, Section 1 of the Colorado Constitution, and by this Agreement/Contract does not agree to indemnify, hold harmless, exonerate or assume the defense of the Contractor or any other person or entity, for any purpose The Contractor and his Surety shall indemnify and save harmless the Owner, its officers, agents, employees, successors and assigns from all suits, demands, actions, or claims of any nature whatsoever brought or made against the Owner, its officers, agents, employees, successors or assigns from any injuries or damages sustained by any person, firm or corporation or property or resulting from or arising out of any neglect in safeguarding the Work, or through the use of unacceptable materials in the construction of the improvement, or as a result of any act or omission by the said Contractor, or from the use, misuse, storage or handling of explosives or on account of any claims or amounts recovered for any infringement of patent, trade- mark, or copyright, or from any claims or amounts arising or recovered under the Workmen's Compensation Laws, or any other law, by-law, ordinance, order or decree, and so much of the money due the said Contractor under and by virtue of his Contract, as shall be considered necessary by the Owner, may be retained or, in case no money is due, his surety shall be held until such suit or suits, action or actions, claim or claims, for injuries or damages as aforesaid, shall have been settled and satisfactory evidence to that effect furnished to the Owner. 14.3 NO PERSONAL LIABILITY OF THE PROJECT ENGINEER, OR PROJECT MANAGER: The Project Engineer, or Project Manager, is an agent of Owner and the Project Engineer, or Project Manager, his agents, heirs, successors and assigns shall have no liability to any third party as a result of his performance of under this Contract. 14.4 NO WAIVER OF LEGAL RIGHTS: Inspection by the Project Engineer, or Project Manager, or by any of his duly authorized representatives, of any order, measurement, or certificate by the Project Engineer, or Project Manager; of any order by the Owner for the payment of money; of any payment for or acceptance of any Work or any extension Page 288 of 436 54 of time; or of any possession taken by the Owner, shall not operate as a waiver of any provision of the Contract, or any power therein provided. A waiver of any breach or term of the Contract shall not be deemed to be a waiver of any other or subsequent breach. The Owner reserves the right to correct any error that may be discovered in any estimate that may have been paid, and to adjust the same to meet the requirements of the Contract and Specifications. The Owner reserves the right to claim and recover, by process of law, sums as may be sufficient to correct any error or make good any deficit in the Work resulting from such error, dishonesty, or collusion upon proof of collusion or dishonesty between the Contractor or his agents and the Project Engineer, or Project Manager, or his assistants, discovered in the Work after the final payment has been made. Article 15. DEFAULTS, REMEDIES AND TERMINATION 15.1 NOTICE OF DISPUTES AND OBJECTIONS: If Contractor disputes or objects to any requirement, direction, instruction, interpretation, determination, or decision of Owner, Contractor may notify Owner in writing of its dispute or objection and of the amount of any equitable adjustment to the contract price or contract time to which Contractor claims it will be entitled as a result thereof; provided, however, that Contractor shall, nevertheless, proceed without delay to perform the work as required, directed, instructed, interpreted, determined, or decided by Owner, without regard to such dispute or objection. Unless Contractor so notifies Owner within two business days after receipt of such requirement, direction, instruction, interpretation, determination, or decision, Contractor shall be conclusively deemed to have waived all such disputes or objections and all claims based thereon. 15.1.1 Notice of Intent - The Contractor shall submit a “Notice of Intent to Claim” for any claim, dispute, or protest (“Claim”) of any decision or event arising out of or related to this Contract (other than those for which a specific procedure is set forth elsewhere in these General Conditions) in writing within ten (10) days of the later of the Contractor’s receipt of the Project Engineer, or Project Manager’s written instruction or decision (if applicable), deemed denial, or any other event giving rise to the claim, dispute, or other matter and shall include the basis for the Claim. The Notice of Intent to Claim shall be clearly titled as such, dated as of the actual date of submission, and numbered sequentially, and shall contain at a minimum: a) Project title and number; b) Date of the event giving rise to the claim, dispute, or protest; c) A description of the Claim and the events giving rise to the Claim, including any original request and the Project Engineer, or Project Manager’s decision or denial; and d) The reasons why the Contractor believes additional compensation or time is due or charges were wrongly assessed; e) An accounting or estimate of all additional costs associated with the Claim; f) The Contractor’s plan for mitigating costs or delays associated with the Claim. 15.1.2 Claim - Within twenty (20) days after submitting the Notice of Intent to Claim, the Contractor shall submit to the Project Engineer, or Project Manager, a complete and itemized Claim that includes any claimed increase in Contract Time or Contract Price, or both. The Contractor may request an extension of time to submit the Claim, which extension may be granted by the Project Engineer, or Project Manager, provided that good cause is shown. The Claim must be described in sufficient detail to allow the Owner to evaluate the basis of and costs associated with the Claim. a) A Claim for an increase in Contract Price shall be submitted based on actual costs whenever possible, rather than an estimate or opinion, shall be supported by invoices, time cards, and other business records commonly accepted in the industry, and shall comply with the requirements of these General Conditions concerning changes to the Contract Price. b) Any Claim for changes to the Contract Time shall include the information required by these General Conditions concerning changes to the Contract Time. The Claim shall be accompanied by copies of all Contract provisions or other documents supporting the Claim and a summary of the legal and factual theories supporting the Claim. A Claim for time extension must be accompanied by a revised Construction Schedule reflecting the effects of the delay on the completion of critical activities and showing actions that the Contractor has taken or proposes to take to minimize the effects of the delay. c) The Claim shall also identify any measures the Owner can take to minimize the Claim. d) The Contractor shall submit with its Claim a notarized certificate, executed under penalties of perjury, that:  The Claim is made in good faith;  All supporting data are accurate and complete to the best of the Contractor’s knowledge and belief;  The amount requested accurately reflects that Contract adjustment for which the Contractor believes the City is liable; and  The prices stated for material and equipment are the lowest reasonably available to the Page 289 of 436 55 Contractor and include all available discounts. e) If the Contractor is an individual, the certification shall be executed by that individual; if the Contractor is not an individual, the certification shall be executed by an officer or general partner of the Contractor or other person having written authority to sign the Claim. f) The Contractor shall furnish, upon request, all additional information and data that the Owner determines is needed to aid in resolving the Claim through negotiation or is required to complete an evaluation of the Claim. The Contractor shall give the City access to its books, correspondence, records, electronic files and data bases, and any other materials relating to the Claim, shall require its Subcontractors and Suppliers to provide the City with such access, and shall make its Personnel and that of its Subcontractors and Suppliers available to discuss and answer cost, schedule and other questions relating to the Claim. Clear copies of all necessary supporting records shall be provided to the City at no cost. Failure to submit requested information may be a basis for denial of the Claim. 15.2 NEGOTIATION OF DISPUTES: To avoid and settle without litigation any such dispute or objection, Owner and Contractor agree to engage in good faith negotiations. 15.3 DECISION: The Owner shall investigate, review, and evaluate the Claim and make a determination in writing within sixty (60) days of receipt of a completed and fully documented claim, unless special circumstances exist or the Claim is unusually complex, in which case the Contractor will be notified of any longer review period. If no determination is made within sixty (60) days, or by the end of any announced extended period of time, the claim is automatically denied. The Contractor shall proceed diligently with performance of the Contract, pending final resolution of any Claim made under this article. Failure to proceed with the Work shall be grounds for suspension or termination of the Contract. If the Contractor agrees with any determination or resolution by the City, such determination or resolution shall be processed as a Change Order 15.4 WAIVER: Failure to strictly meet any of the requirements of this article in a timely and complete manner shall constitute a waiver by the Contractor of any and all right to adjustments of Contract Time or Contract Price, either by administrative review or by any other action at law or equity. Strict compliance with all provisions of this article shall be a condition precedent to the Contractor’s ability to file any lawsuit in law or equity, or recover any damages, in connection any Claim. 15.5 CONTRACTOR'S REMEDIES: If Owner fails or refuses to satisfy a final demand made by Contractor pursuant to Section 9.3 of this contract, or to otherwise resolve the dispute which is the subject of such demand to the satisfaction of Contractor, within ten days following receipt of such demand, then Contractor shall be entitled to pursue such remedies, not inconsistent with the provisions of this contract, as it may have in law or equity. If the Contractor disagrees with the City’s determination of the Claim, the Parties shall first submit the dispute to non-binding mediation before seeking any remedy in any other forum. The mediator shall be a trained mediator having experience related to municipal construction projects. The Parties shall jointly select the mediator from a list of mediators proposed by the Parties. If the Parties are unable to agree on a mediator, the Parties shall submit three mediator names each and the mediator shall be selected by random drawing at which the Project Engineer, or Project Manager, and the Contractor are present. No discussions or statements of the mediator may be admitted as evidence in any subsequent litigation, nor may the mediator be called to testify in any litigation. The cost of the mediator shall be shared equally by the Parties. Mediation in accordance with this section shall be a condition precedent to filing any lawsuit relating to any Claim. 15.6 OWNER'S REMEDIES: If it should appear at any time prior to final payment that Contractor has failed or refused to prosecute, or has delayed in the prosecution of, the work with diligence at a rate that assures completion of the work in full compliance with the requirements of this contract on or before the completion date, or has attempted to assign this contract or Contractor's rights under this contract, either in whole or in part, or has falsely made any representation or warranty in this contract, or has otherwise failed, refused, or delayed to perform or satisfy any other requirement of this contract or has failed to pay its debts as they come due ("Event of Default"), and has failed to cure any such Event of Default within five business days after Contractor's receipt of written notice of such Event of Default, then Owner shall have the right, at its election and without prejudice to any other remedies provided by law or equity, to pursue any one or more of the following remedies: a) Owner may require Contractor, within such reasonable time as may be fixed by Owner, to complete Page 290 of 436 56 or correct all or any part of the work that is defective, damaged, flawed, unsuitable, nonconforming, or incomplete; to remove from the work site any such work; to accelerate all or any part of the work; and to take any or all other action necessary to bring Contractor and the work into strict compliance with this contract. b) Owner may perform or have performed all work necessary for the accomplishment of the results stated in Paragraph a above and withhold or recover from Contractor all the cost and expense, including attorneys' fees and administrative costs, incurred by Owner in connection therewith. c) Owner may accept the defective, damaged, flawed, unsuitable, nonconforming, incomplete, or dilatory Work or part thereof and make an equitable reduction in the contract price. d) Owner may terminate this contract without liability for further payment of amounts due or to become due under this contract. e) Owner may, without terminating this contract, terminate Contractor's rights under this contract and, for the purpose of completing or correcting the work, evict Contractor and take possession of all equipment, materials, supplies, tools, appliances, plans, specifications, schedules, manuals, drawings, and other papers relating to the work, whether at the work site or elsewhere, and either complete or correct the work with its own forces or contracted forces, all at Contractor's expense. f) Upon any termination of this contract or of Contractor's rights under this contract, and at Owner's option exercised in writing, any or all subcontracts and supplier contracts of Contractor shall be deemed to be assigned to Owner without any further action being required, but Owner shall not thereby assume any obligation for payments due under such subcontracts and supplier contracts for any Work provided or performed prior to such assignment. g) Owner may withhold from any Progress Payment or final payment, whether or not previously approved, or may recover from Contractor, any and all costs, including attorneys' fees and administrative expenses, incurred by Owner as the result of any Event of Default or as a result of actions taken by Owner in response to any Event of Default. h) Owner may recover any damages suffered by Owner. 15.7 OWNER'S SPECIAL REMEDY FOR DELAY: If the work is not completed by Contractor, in full compliance with, and as required by or pursuant to, this contract, within the contract time as such time may be extended by a Change Order, then Owner may invoke its remedies under Section 9.6 of this contract or may, in the exercise of its sole and absolute discretion, permit Contractor to complete the work but charge to Contractor, and deduct from any Progress or Final Payments, whether or not previously approved, administrative expenses and costs for each day completion of the work is delayed beyond the Completion Date, computed on the basis of the "Per Diem Administrative Charge" set forth in Section 4.8, as well as any additional damages caused by such delay. 15.8 ATTORNEY FEES: In the event there is any dispute between the Contractor or the Surety and the Owner, its officers, agents or employees, and the Owner, its officers, agents or employees prevail, the Owner, its officers, agents or employees shall be granted all of its costs, including but not limited to attorney's fees, court costs and expert witness fees. Article 16. INDEPENDENT CONTRACTOR The Contractor shall perform the Services as an independent contractor and shall not be deemed by virtue of this Contract to have entered into any partnership, joint venture, employer/employee or other relationship with the Owner other than as a contracting party and independent contractor. Article 17. DISPOSAL; HAZARDOUS SUBSTANCES 17.1 REMOVAL AND DISPOSAL OF STRUCTURES AND OBSTRUCTIONS: All structures or obstructions found on the site and shown on the Plans which are not to remain in place or which are not to be used in the new construction shall be removed as directed by the Project Engineer, or Project Manager. Unless specified in the Proposal, this Work will not be paid for separately but will be included in the price Proposal for that portion of the Work requiring the removal of the obstruction. All material found on the site or removed therefrom shall become the property of the Contractor unless otherwise indicated. Materials determined by the Project Engineer, or Project Manager, to be unsuitable for backfill shall be disposed of off the site at the Contractor's expense. 17.2 CLEANING UP AND RESTORATIONS: The Contractor shall clean up and lawfully dispose of all refuse or scrap materials so the site presents a neat, orderly, and workmanlike appearance at all times. The Contractor shall follow all direction from the Project Engineer, or Project Manager, as to the appearance of the site at all times. The Contractor shall remove all mud or other materials tracked or otherwise deposited on any roadway daily or as directed by the Project Engineer, or Project Manager. Upon completion of the Work, and before Final Inspection, the Contractor shall remove from the construction site and any occupied adjoining property all plants, buildings, refuse, unused materials, forming lumber, sanitary Page 291 of 436 57 facilities, and any other materials and equipment that belong to the Contractor or any Subcontractors. The Contractor shall clean and replace any broken or scratched windows, clean and repair all surfaces, and clean and adjust all units of equipment that are part of the Work. Final Payment will not be made until all cleanup is done to the Project Engineer, or Project Manager’s, satisfaction. At the Contractor’s cost, the Owner may clean up and restore the construction site satisfactorily when the Contractor fails to do so within two (2) days of the Project Engineer, or Project Manager’s, direction. The Owner may deduct any such cost from any payment due the Contract or may recover such costs from the Contractor or the Surety. 17.3 REMOVAL OF CONDEMNED MATERIALS AND WORK: The Contractor shall remove from the site of work without delay all rejected and condemned materials and work. Upon failure of the Contractor to remove and properly dispose of the rejected material or work immediately after receiving formal notice to do so, the Engineer may have such material or work removed and charge the cost of same to the Contractor. 17.4 PEST & VECTOR CONTROL: The Contractor will be responsible for pest control and vector control at the Work site until Substantial Completion. All pest and vector control activities shall be conducted in compliance with applicable laws, including ordinances, statutes and regulations governing the handling, storage and application of pesticides or other hazardous materials and substances. 17.5 HAZARDOUS SUBSTANCES: “Hazardous Substances” include any substance identified as a hazardous substance pursuant to any federal, state or local law or regulation regulating substances by reason of threats posed to public health and safety, including the Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the Emergency Planning and Community Right-to-Know Act of 1986, the Hazardous Substances Transportation Act, the Solid Waste Disposal Act, the Clean Water Act, the Clean Air Act, the Toxic Substances Control Act, the Safe Drinking Water Act, the Occupational Safety and Health Act, and the Asbestos Hazard Emergency Response Act, all as amended. 17.6 EXISTING FACILITIES – HAZARDOUS SUBSTANCES MAY EXIST: Contractor acknowledges that most existing structures owned or operated by Owner may contain asbestos-containing materials, and the Site may also contain other Hazardous Substances. 17.7 NO INTRODUCTION OF HAZARDOUS SUBSTANCES: Contractor, its contractors, its Subcontractors, its Sub- subcontractors, its Suppliers, and their respective agents, representatives and employees shall not introduce or cause the introduction of Hazardous Substances to the Project. Except as provided below as to Ordinary Course Materials, in the event that Contractor, its contractors, its Subcontractors, its Suppliers, or their respective agents, representatives and employees introduce or cause the introduction of Hazardous Substances to the Project, Contractor shall pay for removal of all such substances and shall indemnify Owner and its successors as owners of the Property for all liability resulting from the introduction of such Hazardous Substances to the Project. 17.8 SUSPECTED HAZARDOUS SUBSTANCES: Contractor acknowledges that other Hazardous Substances may exist in building materials, soils, or equipment used on the Site. Contractor shall not be primarily responsible to identify Hazardous Substances existing on the Site; provided that Contractor shall be responsible to comply with all recommendations and requirements of environmental consultants furnished to Contractor in writing. Except as provided above and except for Ordinary Course Materials, if Contractor encounters what Contractor reasonably believes may be Hazardous Substances, Contractor shall immediately stop Work in the area affected and immediately report the condition to Project Engineer, or Project Manager, and Owner in writing. If, in fact, the materials are Hazardous Substances, the Work in the affected area shall not thereafter be resumed, except by written agreement of Owner and Contractor, until the Hazardous Substances have been removed or rendered safe by Owner in accordance with all applicable laws at Owner’s expense, and Owner has provided reasonable evidence thereof to Contractor. The Work in the affected area shall be resumed in the absence of Hazardous Substances, when any Hazardous Substances have been rendered harmless, or when the conditions in the preceding sentence have been satisfied. Unless such materials were introduced to the Project by Contractor, Subcontractors, Sub- subcontractors, Suppliers, or their respective agents, representatives and employees, Owner shall be responsible for all reasonable costs related to any testing, removal, encapsulation, or remediation of any such substances or materials, and any additional cost of the Work arising out of any delay in the Work caused thereby. Except as to such materials introduced to the Project by Contractor, Subcontractors, Sub- subcontractors, Suppliers, or their respective agents, representatives and employees, any delays arising out of such testing, removal, encapsulation, or remediation shall be an Owner Delay, but only to the extent that the same causes actual delay in the Work that satisfies all the requirements necessary to be an Owner Delay under Section 3.4.1; provided, however, that if the Agreement is a GMGC Agreement, any increases in the Cost of Work (and any associated Construction Fee and General Conditions fee, if applicable) in connection with any such Owner Delay shall be charged to the Contingency, and an increase in the Guaranteed Maximum Price shall be allowed, if at all, only to the extent that such amounts exceed the balance of the Contingency. 17.9 ORDINARY COURSE MATERIALS: Nothing contained herein shall be deemed to preclude Contractor from using and bringing onto the Property materials and substances (which are otherwise Hazardous Substances) used in Page 292 of 436 58 the ordinary course of commercial construction in quantities typically and safely used for such purposes (“Ordinary Course Materials”). Contractor shall use all Ordinary Course Materials in accordance with all Current Laws and shall make sure that none of the Ordinary Course Materials are released or otherwise permitted to contaminate the Property or render the Property contaminated. Contractor shall defend and indemnify Owner against any claim, cost, loss, or damage resulting from the use of the Ordinary Course Materials in connection with the Project or resulting from the introduction of Hazardous Substances onto the Property in a manner not specifically permitted hereby. In the event Contractor recognizes any improper handling or storage of Hazardous Substances on the Site, including Ordinary Course Materials, or observes circumstances which contractor actually knows may result in the release or discharge of Hazardous Substances, whether or not by someone for whose acts Contractor is responsible, Contractor shall immediately notify Owner thereof. Article 18. ROYALTIES AND PATENTS 18.1 PATENTS AND COPYRIGHTS: The Contractor’s Proposal price shall be considered to include a sufficient sum to cover all fees, royalties and claims for any material, artist rights, process, patent rights, machine, appliance, copyright, trademark, or any arrangement that may be used upon or in any manner connected with or appurtenant to the Work. The Contractor shall provide a suitable legal agreement giving the Contractor the right to use any design, device, material, or process covered by letters patent or copyright, in the construction of the Project when the use has not been specified or required by the Drawings and Specifications. The Contractor shall file a copy of this agreement with the Owner, if requested. The Contractor and the Surety shall indemnify, defend and save harmless the Owner from all claims for infringements on patented design, devices, material, process or any trademark or copyright during the prosecution or after the completion of the Project. If any design, device, material, process or product of a particular manufacturer covered by letters patent or copyright is specified for use by the Drawings and Specifications, the Owner is responsible for any claims for infringement by reason of the use of such design, device, material, process or product of a particular manufacturer; but the Contractor shall pay any royalties or license fees required. No reports, graphics or other material produced specifically for the Owner under this Contract shall be the subject of an application for copyright or trademark by or on behalf of Contractor. Article 19. DRAWINGS, DETAIL AND INSTRUCTIONS 19.1 DRAWINGS AND SPECIFICATIONS: This Section 2.2 shall be included in all subcontracts hereunder at all times. (a) In the Drawings and Specifications, the Owner intends that the Contractor furnish all superintendence, labor, materials, tools, equipment, supplies, machinery and transportation necessary for the proper execution of the Work unless specifically noted otherwise. The Contractor shall do all the Work shown on the Drawings and described in the Specifications and all incidental Work reasonably necessary to complete the Project in a substantial and acceptable manner, and to complete fully the Work, ready for use, by the Owner. The Contractor shall complete all Work according to the Specifications and Drawings. (b) The Contract Documents are intended to be complementary, and Work called for on any Drawing and not mentioned in the Specifications, or Work described in the Specifications and not shown on any Drawing, is included under the Contract as if set forth in both the Specifications and Drawings. (c) Material and workmanship specified by the number, symbol, or title of a referenced standard shall comply with the latest edition or revision thereof and any amendments or supplements thereto in effect on the date the Proposal is received except where a particular issue or edition of a publication is indicated. In case of a conflict between the Drawings, Specifications and the referenced standard, the more stringent shall govern, as determined by the Project Engineer, or Project Manager. (d) If labor, materials or equipment, although not described by the Drawings or Specifications, is required to successfully complete the Work and can reasonably be inferred by competent contractors by virtue of common knowledge or customary practice in the construction industry from the Contract Documents as being necessary to produce the intended result, the Contractor shall perform that work or provide the materials or equipment as if they were specified. (e) Contractor shall carefully study the Contract Documents and, if Contractor identifies any discrepancies found between the Drawings and Specifications and site conditions and any adjacent work on which the Work is dependent and any errors or omissions in the Drawings or Specifications, shall promptly notify the Project Engineer, or Project Manager, of such discrepancies, errors, or omissions in writing, and any necessary changes shall be accomplished by issuance of an appropriate Change Order or Field Page 293 of 436 59 Order. Any Work done by the Contractor after discovery of such discrepancies, errors or omissions prior to the issuance of a Change Order or Field Order is done at the Contractor's risk. In all cases, the Project Engineer, or Project Manager, shall decide the intent of the Drawings and Specifications. In the event such discrepancies exist and the Project Engineer, or Project Manager, is not so notified, the Project Engineer, or Project Manager, shall reserve the right to exercise sole arbitration authority. It is mutually agreed that all authorized alterations affecting the requirements and information given on the Approved Plans shall be in writing and approved by the Project Engineer, or Project Manager. (f) If the Contractor or any of its Subcontractors or Suppliers, knows or reasonably should know by virtue of common knowledge or customary practice in the construction industry that any of the Contract Documents are at variance with applicable laws, statutes, ordinances, building codes, or rules or regulations, in any respect, the Contractor shall promptly notify the Project Engineer, or Project Manager, in writing, and any necessary changes shall be accomplished by issuance of an appropriate Change Order or Field Order. The Contractor shall assume full responsibility for, and shall bear all costs attributable to work performed by the Contractor or any Subcontractor prior to the issuance of a Change Order or Field Order when any of them know or reasonably should know that it is contrary to such laws, statutes, ordinances, building codes, rules or regulations. (g) The Contractor, before commencing work, shall verify all governing dimensions, and shall examine, to the extent reasonable, all adjoining work on which its Work is in any way dependent. No disclaimer of responsibility for defective or non-conforming adjoining work will be considered unless written notice of the same has been filed by the Contractor and agreed to in writing by the Project Engineer, or Project Manager, before the Contractor begins any part of the affected Work. (h) The Contractor shall perform no portion of the Work at any time without Contract Documents or, where required, approved Drawings, Specifications, instructions, Shop Drawings, product data, or samples for such portion of the Work. 19.2 COPIES OF DRAWINGS AND SPECIFICATIONS FURNISHED: The Project Engineer, or Project Manager, will furnish to the Contractor copies of Drawings and Specifications of the Work at reproduction costs (including labor) or electronic copies of Drawings and Specifications in electronic form at no charge. 19.3 UTILITIES: Delays relating to relocation of utilities should be anticipated for Work on or involving City rights- of-way. It is the Contractor’s responsibility to verify all locations of existing structures and utilities shown on the Drawings and to ascertain whether any other structures and utilities exist. The Drawings show available information on the location of existing underground, surface and overhead structures and utilities. However, the Owner does not guarantee the results of the investigations are accurate or complete. 19.4 REQUESTS FOR CLARIFICATION AND INFORMATION: The Contractor shall submit any requests for information or clarification of Drawings and Specifications to the Project Engineer, or Project Manager, or to the person who has been designated by the Project Engineer, or Project Manager, to receive such requests. When the City responds to such requests for information or clarification, it will issue a response which can consist of a written explanation with or without drawings or other information in the City’s sole discretion. Such requests and responses to such requests shall neither authorize nor constitute changes in the Contract Time or Contract Price. If the Contractor believes that the response to any request for information or clarification requires a change in Contract Time or Contract Price, it shall submit a Contractor Change Request in accordance with the Contract Documents. The Contractor shall review and attempt to answer requests for information or clarification from its Subcontractors and Suppliers. Such requests shall be encompassed within the Contractor’s request for information or clarification by the Contractor to the Project Engineer, or Project Manager, if the Contractor is unable to answer such requests. 19.5 DIMENSIONS: Figured dimensions shall govern over scaled dimensions. 19.6 SHOP DRAWINGS (a) The Plans will be supplemented by Shop Drawings as necessary to adequately control the Work or as specified. Shop Drawings are not part of the Contract documents. Shop Drawings may consist of drawings, diagrams, illustrations, schedules, calculations, and other data prepared by the Contractor, Subcontractor, manufacturer, supplier, or distributor, which will illustrate how specific portions of the Work shall be fabricated and/or installed in accordance with the Plan details and Specifications. The Contractor shall provide Shop Drawings, settings, schedules, and such other Drawings as may be necessary for the prosecution of the Work in the shop and in the field as required by the Drawings, Specifications or Project Engineer, or Project Manager’s instructions. (b) Any Work done prior to the Owner's approval of Shop Drawings will be at the Contractor's risk. (c) The Project Engineer, or Project Manager, may request additional details and require the Contractor to make changes in the design which are necessary to conform to the provisions and intent of these Page 294 of 436 60 Specifications without additional cost to the Owner. (d) The Contractor shall submit for approval three (3) hard copies and one electronic copy of all Shop Drawings and descriptive data as applicable showing all features not fully detailed on the Specifications but essential for a completely coordinated installation. After checking, one set will be returned to the Contractor. The Contractor will correct errors in Shop Drawings as directed by the Owner. (e) The Owner’s approval of Shop Drawings indicates only that the type and kind of equipment and general method of construction or detailing are satisfactory and in general compliance with the Contract Documents and design concept of the Project. The Contractor has the responsibility for incorporating into the Work satisfactory materials and equipment meeting the requirements of the Contract Documents, the proper dimensions, and the detailing of connections. Approval of the Shop Drawings by the Project Engineer, or Project Manager, shall not be construed as a complete check and verification, but will indicate that general conformance with the design concept and general compliance with the information given in the Contract has been achieved. Any information or action to be taken as set forth in the Shop Drawings is subject to the requirements of the Plans and Specifications. The Project Engineer, or Project Manager, shall be notified in writing of any information in the Shop Drawings that deviates from the requirements of the Contract documents. Appropriate action will then be taken by the Project Engineer, or Project Manager. (f) The Contractor may not construe such approval as a complete check and approval does not indicate the waiver of any Contract requirement. Changes in the Work are authorized only by separate written Change Order. (g) Shop Drawings being returned will be stamped to indicate the following: • Shop Drawings approved for use in construction will have one of the following statements checked: Approved, No Exception Taken, or Approved as Noted. • Shop Drawings to be corrected or redrawn and resubmitted for approval will have one of the following statements checked: Revise as Noted, Resubmit; or Rejected. (h) If Shop Drawings are returned for correction, corrections shall be made and the corrected drawings shall be resubmitted by the Contractor in the same manner as the first submittal. (i) The time required for approval of each submittal will not exceed four (4) weeks after Shop Drawings are received by the Project Engineer, or Project Manager. (j) It is the intent of these Specifications that no more than two submittals will be required. If, however, additional submittals are required by actions of the Contractor, the additional time for Shop Drawing approval will be borne by the Contractor. If additional submittals are required, or if Shop Drawing approval is delayed by actions of the Project Engineer, or Project Manager, and if the Contractor's controlling operations are delayed or interfered with by reason of the delay in Shop Drawing reviews, an extension of time commensurate with the delay in completion of the Work thus caused will be granted as provided in Subsection 6.7, Determination and Extension of Contract Time for completion (k) All Shop Drawings shall be 36 inches long and 22 inches wide overall. There shall be a two inch margin on the left side of the sheet and one-half inch margin on the other three sides. A blank space, six inches by three inches, shall be left near the lower right-hand corner for an approval stamp. (l) Where design notes or catalogue cuts are required, they may be submitted on 8-1/2 in. x 11 in. sheets in lieu of the size mentioned above. (m) There shall be a title block in the lower right-hand corner of each sheet. The title block shall show the Owner's name, structure number, the location of the structure, and the contents of the sheet. (n) The Contract price will include the cost of furnishing all Shop Drawings. Shop drawings and working drawings submitted to the Project Engineer, or Project Manager, by the Contractor, Subcontractor or any lower tier Subcontractor pursuant to the Work, may be duplicated by the Owner and the Owner may use and disclose, in any manner and for any purpose such Shop Drawings and Working Drawings delivered under this Contract. 19.7 RECORD DOCUMENTS: (a) The Contractor shall keep one complete set of all current Drawings and Specifications at the work site and available to the Owner and its representatives at all times. The Contractor shall also keep a set of “shop” drawings on-site that contain all changes or deviations from the original drawings neatly marked thereon in brightly contrasting color. This shall be a separate set of drawings, not used for construction purposes, which shall be kept up to date as the job progresses and shall be made available for inspection by the Project Engineer, or Project Manager, at all times. Upon completion of the Contract, this set of drawings shall be delivered to the Project Engineer, or Project Manager. (b) The Contractor shall keep one record copy of all Amendments, Change Orders, Drawings, Field Orders, Shop Drawings and Specifications in good order. (c) The Contractor shall record any changes made during construction and any discrepancies between the Contract Documents and Work actually performed on the record copies (however minor or seemingly insignificant). The Contractor shall make a set of “Record Drawings” by marking this set of prints with Page 295 of 436 61 all changes from the original Drawings as Proposal, including all Change Orders, alignment changes, depth changes of underground pipes and utilities, utility locations, and all other items that are not the same as originally drawn. The Contractor shall keep the Record Drawings up to date as the Project progresses. The Project Engineer, or Project Manager, may require, as a condition of the approval of any progress payment, periodic inspection of the Record Drawings. The Contractor will deliver the Record Drawings to the Project Engineer, or Project Manager, upon completion of the Project before Final Payment. (d) All Contract Documents are the property of the Owner and shall not be used by the Contractor for any purpose other than the Work to be performed under the Contract. At Final Acceptance, all Shop Drawings and Record Drawings, including all material in electronic format shall become the property of the Owner. The Contractor will be permitted to maintain a copy of the Drawings, Specifications and Shop Drawings as necessary to maintain a Contract record file. (e) The Contractor shall prepare and keep current a schedule of submittals that shall note all required submittals, submittal dates, required approval dates, and all required delivery dates. 19.8 OPERATING MANUALS AND PARTS LISTS: The Contractor shall submit four (4) complete operating manuals and parts lists to the Project Engineer, or Project Manager, for all items of mechanical and electrical equipment incorporated into the Work. 19.9 CONFORMITY WITH PLANS AND ALLOWABLE DEVIATIONS: Finished surfaces shall conform with lines, grades, cross sections and dimensions shown on the Approved Plans. Any deviation from the Plans and working drawings, as may be required by the demands of construction, will in all cases be determined by the Project Engineer, or Project Manager, and authorized in writing. 19.10 COORDINATION OF SPECIFICATIONS, PLANS AND SPECIAL PROVISIONS: The Specifications, the Plans, Special Provisions, and all supplementary Plans and documents are essential parts of the Contract, and a requirement occurring in one is as binding as though occurring in all. They are intended to be cooperative to describe and provide for a complete Work. In case of discrepancy, figured dimensions, unless obviously incorrect, shall govern over scaled dimensions. Plans shall govern over Specifications and Special Provisions shall govern over both Plans and Specifications. The Contractor shall not use to his advantage any apparent error or omission in the Plans or Specifications. In the event the Contractor discovers any apparent error or discrepancy, he shall immediately call upon the Project Engineer, or Project Manager, for his interpretation and decision and such decision shall be final. In the event contradiction and/or conflicts occur in the Specifications not otherwise covered by Special Provisions, the Specifications deemed by the Project Engineer, or Project Manager, to be most restrictive shall govern. 19.11 OWNERSHIP OF WORK PRODUCT: Contractor acknowledges that the Work Product and the copyright interest therein are owned by Owner. Contractor shall not be entitled to use the Work Product in connection with any construction other than the Project, and upon the completion of the Work or the termination of the Contract, Contractor shall return to Architect, at its request, all copies of the Work Product except one (1) signed record set of Construction Documents. Any technical models and/or computer files shall be the property of the Owner. Article 20. RIGHT-OF-WAY 20.1 ACQUISITION OF RIGHT-OF-WAY: Before issuance of Notice to Proceed, the Owner shall obtain all land and right-of-way necessary for carrying out and completion of the Work to be performed pursuant to the Contract, unless otherwise mutually agreed. The Owner shall provide to the Contractor information that delineates and describes the lands owned and rights-of-way acquired, when necessary. The Contractor shall confine its operations within the areas designated by the Project Engineer, or Project Manager. 20.2 ACCESS TO RIGHT-OF-WAY: The Owner will make best efforts to provide right of access to all places necessary for the performance of the Work in a timely manner. The Owner will not be liable to Contractor for any delay in providing access for reasons outside the Owner’s control. Nothing contained in the Contract shall give the Contractor exclusive occupancy of the area provided by the Owner. The Owner, other contractors of the Owner and utility companies may enter upon or occupy portions of the land furnished by the Owner for any purpose, but without unreasonably interfering with the completion of the Project. Joint occupancy or use of the territory shall not be the basis of any claim for delay or damages. If any part of the Project requires Work within the right-of-way of a roadway under the jurisdiction of the Colorado Department of Transportation (CDOT) the Contractor shall obtain the necessary permits from CDOT to perform such Work. The Contractor shall conform to all the requirements and restrictions indicated on the permit. The Contractor shall restore the area to its original condition, including reseeding if necessary, at the completion of the Project. The Contractor’s equipment shall not be stored on any traveled highway. 20.3 RIGHTS-OF-WAY: The Owner shall furnish all lands and rights-of-way required for completion of this Contract. In acquiring rights-of-way, the Owner will proceed as expeditiously as possible, but in the event all rights- Page 296 of 436 62 of-way or easements are not acquired prior to the beginning of construction, the Contractor shall begin Work on such lands and rights-of-way as have been acquired. No claim for damage will be allowed or shall be made by reason of the Owner's delay in obtaining lands, easements or rights-of-way. In the event of litigation or other delays in acquiring rights-of-way, the time allowed herein for completion will be extended to compensate for the time actually lost by such delay. Article 21. SUBMITTALS 21.1 SCHEDULE OF SUBMITTALS: Within thirty (30) days after the date of this Contract, Contractor and Engineer shall jointly prepare a schedule for submittals of shop drawings, samples, schedules and other submittals to be made by the Contractor, the review thereof by Engineer, and responses and resubmittals by Contractor based on the Engineer’s review. Contractor shall incorporate such schedule into the Project Schedule. 21.2 SCOPE OF ENGINEER’S REVIEW: Engineer shall review Contractor’s submittals of shop drawings, samples, schedules and other documents related to items to be incorporated in the Work for aesthetic effect. Contractor shall be responsible to ensure that such submittals conform to the Contract Documents, and the approval of such submittals by Engineer shall not relieve the Contractor from responsibility for any deviation of such submittals from the Contract Documents unless the Contractor gives the Engineer specific written notice of such deviation together with such submittal, nor shall it relieve the Contractor from responsibility for errors and omissions contained in such submittals. 21.3 REVIEW PROCESS: The review of Contractor’s submittals shall be conducted in accordance with the provisions of the specifications contained in the Construction Documents. Such specifications will be based on the Standards Article 22. NOTICES Notices required in this Contract shall be deemed to have been delivered five (5) business days after actual date of Notice of Award after having been placed in the U.S. mails, sent by certified mail, return receipt requested, addressed as set forth in the Contract Award page hereof, or to such other addresses as the parties may mutually designate in writing. All such notices shall be delivered to the parties at the addresses provided in the Agreement or at such other address as Contractor, Owner or Architect may determine for itself by notice given to the other parties. Each notice shall be deemed effective when actually delivered to the address for the party or delivery at such address is tendered and refused or, if the party has multiple addresses, when either actually delivered to, or delivery is tendered and refused at, each of the addresses for the party. Notwithstanding anything to the contrary herein, meeting notes and minutes prepared by Contractor shall not constitute notice of any fact regarding which notice is permitted or required to be given under the Contract, regardless of how such notes and minutes are delivered. Article 23. OWNER’S GENERAL RESPONSIBILITIES 23.1 OWNER PERFORMANCE: The Owner will furnish the data, perform acts, and make payments as required by the Contract Documents. The Owner shall not supervise, direct, or have authority or control over, nor be responsible for, the Contractor’s means, methods, techniques, sequences, or procedures of construction or safety precautions, or any failure of the Contractor to comply with any laws or regulations applicable to the Work. The Owner will not be responsible for the Contractor’s failure to perform or furnish the Work in accordance with the Contract Documents. The Owner’s promise to pay for the Work that the Contractor promises to perform is limited by the Owner’s Charter and its ordinances. A payment obligation of the Owner under this Contract, whether direct or contingent, shall extend only to funds appropriated by the Owner Council for the purpose of the Contract, encumbered for the purpose of the Contract and paid into the Owner or otherwise lawfully made available by the Owner. Unless authorized by law, (i) the Owner does not by this Contract irrevocably pledge present cash reserves for payments in future fiscal years, and (ii) this Contract is not intended to create a multiple-fiscal year direct or indirect debt or financial obligation of the Owner. Other limitations are found in the law that the Contractor is presumed to know. Three such limitations on payment are listed below: a) Under no circumstances will the Owner be liable for any extra Work that has not been authorized by a properly executed Change Order or Field Order. b) No Change Order, Field Order, or other form of directive to the Contractor shall be issued, and no such order or directive shall be binding if issued, if: (i) it would directly cause the aggregate amount payable under the Contract to exceed the amount appropriated or otherwise lawfully made available for the Contract, or (ii) it would require the Contractor to perform additional compensable work which would cause the aggregate amount payable to exceed such appropriated or provided amount. Page 297 of 436 63 c) It shall be the Contractor’s responsibility to verify that the amounts already appropriated or otherwise made available for the Contract are sufficient to cover the entire costs of the Work. Any work undertaken or performed in excess of the amount appropriated or otherwise made available is undertaken or performed in violation of the terms of the Contract, without the proper authorization, and at the Contractor’s own risk. Any limitations on the sources of funding for payments made under the Contract are stated in the Contract Documents. 23.2 PROJECT ENGINEER, OR PROJECT MANAGER: The Project Engineer, or Project Manager, is designated by the Owner to exercise all authority on its behalf under the Contract and to see that the Project is completed according to the Contract Documents. The Project Engineer, or Project Manager, may be changed by written notice to the Contractor. The Project Engineer, or Project Manager, may assume exclusive control of the performance of the Contractor in the case of non-performance or if there is an imminent threat to life or safety of persons or property. The Project Engineer, or Project Manager, will furnish all explanations, directions, stakes or markers, and inspections necessary to carry out and complete the Project. No inspection, explanation or direction by the Project Engineer, or Project Manager, shall be deemed authority for Contractor to deviate from the requirement that the Work be performed in accord with the Contract Documents. 23.3 RIGHT TO BAR PERSONS FROM THE WORK OR SITE: The Owner reserves the right to bar any person, including employees of the Contractor and Subcontractors, from the Work site by order of the Project Engineer, or Project Manager. This shall not be treated as a request for the employee’s termination but a request that the employee not be assigned to work on the Owner Work site. No increase in contract time or price is authorized as a result of the Owner’s exercise of this section. 23.4 ACCESS TO WORK: The Owner, its representatives, and participating federal or state agencies and other public authorities having jurisdiction established by law shall have access to the Project and Work site at any time for any purposes, including without limitation inspection, sampling, and testing. The Contractor shall provide proper facilities for access to the Project. Access means wherever and whenever the Work is in manufacture, preparation or progress and includes access to payrolls, records of personnel not protected from disclosure by law, invoices of materials, terms and conditions of sale of materials and equipment to be incorporated in the Project, files, records, books, correspondence, instructions, Drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and any other relevant data and records relating to the Contract. The Owner may, at reasonable times, inspect the part of the plant, place of business or worksite of the Contractor or Subcontractor at any tier that is pertinent to the performance of the Contract. 23.5 INSPECTION: The Owner shall appoint Inspectors to inspect the Project. Inspection may extend to all or any part of the Work. Inspectors are not authorized to alter any Contract Documents or to delay the fulfillment of the Contract by failure to inspect materials and Work with reasonable promptness. Inspectors are not authorized to act as foreman for the Contractor. Article 24. CONCEALED CONDITIONS 24.1 DISCOVERY OF CONCEALED PHYSICAL CONDITIONS: In the event Contractor encounters subsurface or otherwise concealed physical conditions that differ materially from those conditions reasonably inferable from observations of the exposed surfaces of the Site and reports, surveys, assessments, record drawings and other information furnished by Owner or obtained by Contractor, Contractor shall provide Engineer and Owner notice thereof within two (2) business days after first discovering the same and shall suspend those portions of the Work that conflict with such conditions until receipt of further directions from Owner. 24.2 INSPECTION AND DRAWING UPDATE: Contractor and Owner shall inspect and evaluate such conditions, and Owner shall cause the Project Engineer, or Project Manager, if necessary, to prepare appropriate supplemental drawings or instructions to address or accommodate the conditions discovered. 24.3 DELAYS: Delay resulting from the suspension of Work pending the investigation of unforeseen concealed conditions shall be an Owner Delay, but only to the extent that the same causes actual delay in the critical path to complete the Work that satisfies all the requirements necessary to be an Owner Delay under Section 3.4.1 and all the requirements of Section 15.1.5 below. Page 298 of 436 64 24.4 CHANGE ORDER: If the actions necessary to address such conditions of the Site increase the Cost of Work or adversely impact the critical path to completion of the Work, Contractor may request that an Agreed Change or Change Directive be issued for changes in the Work reflected in the supplemental drawings or instructions prepared to address such conditions, subject to the provisions of Section 15.1.5 below. 24.5 COSTS 24.5.1 Reasonable Inference - Notwithstanding anything to the contrary provided herein, Contractor shall not be entitled to any increase in the Contract Sum or extension of the Milestone Schedule, nor shall any Owner Delay be deemed to have occurred, on account of any condition of the Site that was indicated in or reasonably inferable from (i) observations of the exposed surfaces of the Site and reports, surveys, assessments, record drawings and other information furnished by Owner or obtained by Contractor, (ii) a thorough inspection of the Site prior to the commencement of the Work (regardless of whether such thorough inspection was actually conducted), or (iii) other information and documents furnished to Contractor by Owner or others. 24.5.2 GMGC Agreement - If the Agreement is a GMGC Agreement, increases in the Cost of Work (and any associated Construction Fee and General Conditions fee, if applicable) in connection with any Agreed Change or Change Directive under Section 15.1.4 shall be charged to the Contingency, and an increase in the Guaranteed Maximum Price shall be allowed, if at all, only to the extent that such costs exceed the balance of the Contingency. 24.5.3 Disputes - Any dispute as to whether Contractor is entitled to receive an increase in the Contract Sum or extension of the Milestone Schedule on account of concealed conditions of the Site shall be a Dispute and shall, at the request of either Contractor or Owner, be submitted to Dispute Resolution. Article 25. WAIVER 25.1 WAIVER: The waiver of any breach of a term, provision or requirement of this Contract, including the failure to insist on strict compliance or to enforce any right or remedy, shall not be construed or deemed as a waiver of: any subsequent breach of such term, provision or requirement or of any other term, provision or requirement; any right to insist on strict compliance with any term, provision or requirement; or any right to enforce any right or remedy with respect to that breach or any other prior, contemporaneous, or subsequent breach. 25.2 NO WAIVER: No inspection by the Project Engineer, or Project Manager, any other person acting on the Owner's behalf, nor any order, measurement, estimate or certificate by the Architect, nor any order by the Owner for the payment of money, nor any payment for or acceptance of any Work, nor any extension of time, nor any possession taken by the Owner, shall operate as a waiver of any right of Owner arising out of or related to the Contract. No waiver of any breach of the Contract shall be construed as a waiver of any other or subsequent breach thereof. Article 26. OTHER CONDITIONS 26.1 BINDING CONTRACT: The Contractor binds itself, its partners, successors, assigns and legal representatives to the other party to this Contract and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Contract. The Contractor shall not transfer, assign, or subcontract any interest in this Contract. It is agreed that this Contract shall be binding on and inure to the benefit of the parties hereto, their heirs, executors, administrators, assigns, and successors. 26.2 LEGISLATIVE OR JUDICIAL DECISIONS: If any provision of this Contract is subsequently declared by legislative or judicial authority to be unlawful, unenforceable, or not in accordance with applicable laws, statutes, and regulations of the United States of America and the State of Colorado, all other provisions of this Contract shall remain in full force and effect. 26.3 SUPERSEDING: This Contract represents the entire and integrated Agreement between the Owner and the Contractor and supersedes all prior negotiations, representations or agreements, either written or oral. This agreement may be amended only by written instrument signed by both Owner and Contractor. 26.4 PROFESSIONAL STANDARDS: Services and Work performed by Contractor under this Contract shall conform to reasonable and normal professional standards and the Contractor shall conduct himself at all times in a manner consistent with industry standards. 26.5 NOTIFICATION IN WRITING: No assignment of any claim or proceeds under this Contract shall be binding Page 299 of 436 65 upon the Owner unless it shall be first notified thereof in writing. 26.6 HEADINGS FOR REFERENCE ONLY: The headings of the article, clauses, and paragraphs of this Contract are inserted for reference purposes only and are not restrictive as to content. 26.7 ONE INSTRUMENT: This Contract and any subsequent amendment shall be deemed an original having identical legal effect, and all of which together constitute one and the same instrument. 26.8 THIRD PARTY CLAIMS: Nothing contained herein shall be deemed to give any third party any claim or right of action against the Owner which does not otherwise exist without regard to this Contract. 26.9 CALENDAR DAYS: Wherever a number of days is specified in this Contract it shall mean calendar days unless otherwise specified. 26.10 WRITTEN CONSENT: This Contract shall not be assigned, in whole or in part, without the written consent of the Owner and Contractor. 26.11 REALLOCATION OF RESOURCES: When a delay on any aspect of the Work occurs, the Contractor, to the maximum extent possible, shall utilize his resources elsewhere on the project. If the Contractor, after complying the maximum extent possible by the reassignment of his labor force, equipment and materials, alleges to have suffered damages due to delay, and the delay is caused in whole or in part by acts or omissions within the control of the Owner or persons acting on its behalf, then such a claim shall be treated as a change order request and shall be processed in accordance with the change order, audit and inspection requirements specified in the General Provisions or it shall be deemed forever waived. Nothing herein contained shall be interpreted so as to allow the Contractor to recover delay damages from the Owner for delays caused by acts of God, the acts or omissions of the Contractor, its subcontractors, employees or agents, or persons over which the Owner has no control. 26.12 DISCLOSURE OF CONFIDENTIAL INFORMATION: The Owner is a municipality organized within the State of Colorado, and as such is subject to the Colorado Open Records Act, C.R.S. 24-72-201 et. seq (CORA). All Contract Documents, and any documents or reports produced pursuant to this Contract, may be subject to public disclosure. In the event that a party to this Contract receives an Open Records request, they shall notify the other party to this Contract. Contractor may act to protect and defend any of Contractor’s information disclosed to the City and labeled with a recognized privilege against disclosure. 26.13 AUDIT 27.1.1 Records and Reports - The Contractor shall keep and maintain and shall cause its Subcontractors, Suppliers and outside consultants to keep and maintain books, records, accounts and other documents (“records”) that are sufficient to accurately and completely reflect all costs incurred pursuant to the Contract that may be the basis of a Contractor Change Request or a claim by the Contractor. Such records may include the Proposal estimate, receipts, memoranda, vouchers, and accounts of every kind and nature pertaining to the performance of the Work including but not limited to job cost ledgers, invoices from and payments to Subcontractors, Suppliers and materialmen, and records of home and field office overhead, as well as complete summaries and reports setting forth all reimbursable man hours expended and payroll records. All such records shall be maintained for a period of three (3) years from the date of Final Payment under the Contract in which the Work is completed. All Subcontractors shall keep and preserve such records accounts for a period of three (3) years from the date of Final Payment under the subcontract. 27.1.2 Access - The Contractor shall permit the Owner and the its auditors to have access to such records and any information or areas as provided in these General Conditions for the purpose of making such financial audits, or verifications as the Owner deems necessary or appropriate concerning the Contractor’s performance under the Contract. Access will be provided at the Contractor’s regular place of business in Colorado at reasonable times and upon reasonable notice. 26.14 FEDERAL AID PROVISIONS: When the United States of America, acting through any of its duly constituted departments or agencies, provides funds to pay for any portion of the costs of Work performed under the Contract, the provisions of the Constitution, Laws of the United States and the rules and regulations promulgated by the department or agency thereof, pertaining to the utilization of such funds, shall be incorporated by reference as a part of the terms and conditions of the Contract and shall be observed by the Contractor. When the United States of America is involved as a result of providing funds to support the Work of the Contract, it may assign observers or inspectors as it deems necessary to ensure that purposes for which the funds were provided are achieved. However, such activity by the United States does not make it a party to the Contract and shall not interfere with the rights of either the Owner or the Contractor. Page 300 of 436 66 26.15 DUTIES & REMEDIES: The duties and obligations imposed by, and rights and remedies available under, the Contract Documents shall be in addition to, and shall not be in any way construed to be a limitation of, any duties, obligations, rights, and remedies imposed by or available by law or contract. 26.16 SURVIVAL: All representations, warranties, and guarantees made in the Contract Documents shall survive Final Payment, Final Acceptance, and termination of the Contract for any reason. 26.17 GOVERNMENT IMMUNITY: The City is relying on, and does not waive or intend to waive by any provision of this Contract, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, §24-10-101, et seq., 10 C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. 26.18 CONSTRUCTION: The provisions of the Contract shall be construed as to the ordinary meaning of the words used so as to fairly accomplish the purposes and intentions of all Parties, and not for or against any party based upon any attributes to such party of the source of the language in question. No term of this Agreement will be construed or resolved in favor of or against the Owner or Contractor on the basis of which party drafted the uncertain or ambiguous language. Where appropriate, the singular includes the plural and neutral words and words of any gender will include the neutral and other gender. All headings, captions and titles are for convenience and reference only and of no meaning in the interpretation or effect of the Contract. 26.19 NO IMPLIED REPRESENTATIONS: No representations, agreements, covenant, warranties, or certifications, express or implied, exist as between the Parties, except as specifically set forth in the Contract. 26.20 FINANCIAL OBLIGATIONS OF OWNER: All financial obligations of the City under the Contract are contingent upon appropriation, budgeting, and availability of specific funds to discharge such obligations. Nothing in the Contract shall be deemed a pledge of the City's credit, or a payment guarantee by the City to the Contractor. 26.21 ASSIGNMENT / TRANSFERENCE: The Contractor may not assign or transfer any interest in the Contract, including any money due or to become due, without the express prior written consent of the City. 26.22 AMENDMENTS: The Parties shall only amend the Contract in writing with the proper official signatures and, if required elsewhere in this Contract, on the proper forms. 26.23 NO THIRD-PARTY BENEFICIARIES: The enforcement of the terms and conditions of the Contract and all rights of action relating to such enforcement shall be strictly reserved to the Parties. The Parties expressly intend that any person other than the Owner and the Contractor shall be deemed to be only an incidental beneficiary under this Agreement. 26.24 INDEPENDENT CONTRACT – NO PARTNERSHIP OR AGENCY: Notwithstanding any language in the Contract Documents or any representation or warranty to the contrary, the relationship between the Contractor and the Owner shall be as independent contractors, and neither the Owner nor the Contractor shall be deemed or constitute an employee, servant, agent, partner or joint venture of the other. The Contractor is obligated to pay federal and state income tax on any money earned pursuant to this Contract, and neither the Contractor nor its employees, agents, or representatives are entitled to workers’ compensation benefits unemployment compensation benefits, sick and annual leave benefits, medical insurance, life insurance, or pension or retirement benefits from the Owner. 26.25 GOVERNING LAW, JURISDICTION, VENUE: This Contract, and any amendments hereto are governed and to be construed according to the laws of the State of Colorado without regard to its conflicts of laws provisions. For all claims arising out of or related to this Contract, the Contractor consents to the jurisdiction of and exclusive venue in the state courts in the County of Arapahoe, State of Colorado. Contractor waives any exception to jurisdiction because of residence, including any right of removal based on diversity of citizenship. 26.26 ATTORNEY’S FEES AND COSTS: The prevailing party in any litigation to resolve a dispute between the Parties arising from this Contract will be entitled to recover court costs and reasonable attorney fees from the non-prevailing party. Page 301 of 436 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Maria D'Andrea DEPARTMENT: Public Works DATE: April 20, 2020 SUBJECT: Approval for the Annual Purchase of Roadway Materials DESCRIPTION: Approval for the Annual Purchase of Roadway Materials RECOMMENDATION: Staff recommends approving a resolution which would authorize issuance of a series of purchase orders, as needed, for the purchase of sand, aggregate, and road materials under the terms of the city of Thornton, Colorado's Front Range Multiple Assembly of Procurement Officials (MAPO) Cooperative Purchasing Agreement in an amount not to exceed $300,000. PREVIOUS COUNCIL ACTION: N/A SUMMARY: Staff would issue a series of purchase orders, as needed, for sand, aggregate, and road materials under the terms of the city of Thornton, Colorado's Front Range Multiple Assembly of Procurement Officials (MAPO) Cooperative Purchasing Agreement in an amount not to exceed $300,000. No specific contract is being awarded as the low bidder will vary by both material and by quarter. The city will purchase materials as needed, based on the low bidder for that quarter. Total expenditures for the year will not exceed the authorized amount. ANALYSIS: The Colorado Front Range Multiple Assembly of Procurement Officials (MAPO), through its member agencies, competitively bids various supplies and services. Other municipalities and the state of Colorado have the opportunity to utilize MAPO's bidding process in lieu of completing their own competitive bidding process. The city of Thornton solicited bids for various road materials in June, 2017. Materials include: various types of asphalt, sand, aggregate & rock, and cold mix patching material. The contract has been extended through December 31, 2020. Prices are provided by vendors and updated on a quarterly basis. Therefore the low bidder, by material type, may vary from quarter to quarter. Prices are provided based on the source/material location and options for delivery versus picking it up at the site. The city would issue one or more purchase orders with the low bidder(s) for the needed material in that quarter. The bid sheet for Q1 2020 is attached for reference. Page 302 of 436 FINANCIAL IMPLICATIONS: The Public Works Department budgets annually for repair of roads and bridges through the Road and Bridge account, 30-1001-001-1002. $300,000 was included in the 2020 budget for roadway repair materials. Some of these funds will also be used to provide asphalt millings and road base for use in the alley maintenance efforts currently underway. ALTERNATIVES: The city could issue an invitation to bid for materials itself. Prices may or may not be more favorable than those provided through the MAPO solicitation. Since the MAPO prices are updated quarterly and multiple bidders are involved, staff feels that the MAPO prices are very competitive and receiving a lower bid price for the city would be unlikely. CONCLUSION: Staff recommends approving the attached resolution which would authorize issuance of a series of purchase orders for the purchase of sand, aggregate, and road materials under the terms of the city of Thornton, Colorado's Front Range Multiple Assembly of Procurement Officials (MAPO) Cooperative Purchasing Agreement in an amount not to exceed $300,000. ATTACHMENTS: Resolution Fund Expenditure Summary Public Improvement Fund - Feb. 2020 2020 Q1 Bid Sheet City of Thornton/MAPO 2017 Bid Documents Page 303 of 436 1/2 RESOLUTION NO. _____ SERIES OF 2020 A RESOLUTION AWARDING A CONTRACT FOR THE PURCHASE OF SAND, AGGREGATE AND ROAD MATERIAL UNDER THE TERMS OF THE CITY OF THORNTON, COLORADO FRONT RANGE MULTIPLE ASSEMBLY OF PROCUREMENT OFFICIALS (MAPO) COOPERATIVE PURCHASING AGREEMENT. WHEREAS, Section 116(b) of the Englewood Home Rule Charter, allow contracts for public works, or improvements associated with capital improvement s to be negotiated, provided that contracts for which no competitive bids have been request ed are approved and accepted by Resolution setting forth the reason for the exception to the competitive bidding requirement; WHEREAS, the City of Englewood Public Works Department utilizes sand, aggregate and road materials to repair, maintain and replace roadways and alleys within the City of Englewood; WHEREAS, the City, as a municipality, has the opportunity to take advantage of the pricing offered through the Colorado Multiple Front Range Assembly of Procurement Officials (MAPO) contract which is a competitively bid or negotiated agreement utilized by various municipalities and the State of Colorado to take advantage of the pricing structure negotiated through the cooperative bidding process; WHEREAS, the funds for the purchase of the sand, aggregate and road materials come from the Public Works budget under line item 30-1001-001-1002, Road and Bridge Repairs Supplies; and WHEREAS, the cost of purchasing the sand, aggregate and road materials over the next year under the cooperative purchasing agreement is not to exceed $300,000.00. . NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. The Englewood City Council hereby authorizes the purchase of Sand, Aggregate and Road Materials for the repair, maintenance, and replacement of roadways and alleys in the City of Englewood, in lieu of the internal competitive bid process, in an amount not to exceed of $300,000.00. Page 304 of 436 2/2 ADOPTED AND APPROVED this 20th day of April, 2020. Linda Olson, Mayor ATTEST: __________________________________ Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk for the City of Englewood, Colorado, hereby certify the above is a true copy of Resolution No. _____, Series of 2020. ______________________________ Stephanie Carlile, City Clerk Page 305 of 436 Contract Approval Summary CAPITAL ONLY A B C 1 = A-B-C Capital Operating Year Tyler / New World Project # / Task#Fund Division Object Line Item Description Budget Spent to Date Contract Amount Budget Remaining O 2020 30 1001 1 1002 Road and Bridge 1,700,000.00$ 10,007.80$ 300,000.00$ 1,389,992.20$ O 2020 -$ -$ Total by Fund and Current Year 10,007.80$ 300,000.00$ 1,389,992.20$ C 2021 -$ -$ -$ -$ O 2021 -$ -$ -$ -$ Total by Fund and Next Year -$ -$ -$ -$ Grand Total 1,700,000.00$ 10,007.80$ 300,000.00$ 1,389,992.20$ NOTES (if needed): For Operating Expense Line Item Detail, please review information provided in OpenGov. For Capital items, please review Attachment - Prior Month Project Status and Fund Balance Report CAPITAL & OPERATING EXPENSE Page 306 of 436 A B C A+B+C D E D+E A+B+C-D-E New Project Fund Bal.Budget World G/L Start Project Carry Fwd.2020 BUDGET Amend REVISED 2020 2020 TOTAL APPROP. Project Task Division PROJECT Year End Date 12/31/2019 Approp.Amendments Notes BUDGET EXPEND.ENCUMB.EXP. AND ENC.BALANCE CITY MANAGER 30 0201 001 0201 Misc. Infrastructure Repairs Ongoing Ongoing 3,710.00 3,710.00 - 3,710.00 30 0201 002 0201 Building Systems Replacement 2014 Ongoing 10,648.70 10,648.70 - 10,648.70 30 0201 004 0201 Branding Monument & Building Signs 2017 134,895.00 134,895.00 3,998.53 19,940.00 23,938.53 110,956.47 SUBTOTAL 149,253.70 - - 149,253.70 3,998.53 19,940.00 23,938.53 125,315.17 COMMUNITY DEVELOPMENT 30 0801 002 0801 Broadway Improvements 2017 63,020.80 63,020.80 - 63,020.80 30 0801 006 0801 2020 Light Rail Corridor & Next Steps Study 2020 241,575.00 241,575.00 6,367.45 6,367.45 235,207.55 SUBTOTAL 304,595.80 - - - 304,595.80 6,367.45 - 6,367.45 298,228.35 PUBLIC WORKS 30 1001 001 1002 Road and Bridge / Bridge Repairs Ongoing Ongoing 811,128.86 1,700,000.00 2,511,128.86 10,007.80 260,984.27 270,992.07 2,240,136.79 30 1001 002 1002 Bridge Repairs 1994 Ongoing 166,256.63 166,256.63 - 166,256.63 30 1001 003 1004 Transportation System Upgrade 1997 Ongoing 268,192.40 200,000.00 468,192.40 177,181.08 77,638.00 254,819.08 213,373.32 30 1001 004 1003 Santa Fe Light Poles 2011 Ongoing 25,000.00 25,000.00 - 25,000.00 30 1001 005 1002 Dartmouth Bridge 2018 2019 1,064,346.69 1,064,346.69 560.00 12,236.59 12,796.59 1,051,550.10 30 1001 006 1002 Street Lights & Furniture Broadway 2016 Ongoing 190,000.00 100,000.00 290,000.00 35,202.25 35,202.25 254,797.75 30 1001 007 1003 Alley Construction 2016 Ongoing 176,918.08 420,000.00 596,918.08 176,918.08 176,918.08 420,000.00 30 1001 008 1001 Concrete Utility - City Share 1998 Ongoing - 300,000.00 300,000.00 - 300,000.00 30 1001 009 1002 US85 Planning and Environmental Linkage 2019 2019 65,000.00 65,000.00 - 65,000.00 30 1001 010 1001 Walk & Wheel Implementation 2019 2019 33,061.25 33,061.25 - 33,061.25 30 1001 011 1001 Broadway Median - Sprinkler electricity repair 2019 2019 256,000.00 256,000.00 - 256,000.00 30 1001 012 1001 Secure Plaza Pond 2019 2019 100,000.00 100,000.00 - 100,000.00 30 1001 013 1001 Signal Equipment Upgrade/Replace 2020 Ongoing 100,000.00 100,000.00 - 100,000.00 30 1001 014 1001 Dartmouth Rail Trail Bridge 2020 600,000.00 600,000.00 - 600,000.00 30 1001 100-01 1001 Oxford Avenue Pedestrian Bridge Grant 2020 - - - 30 1001 100-02 1001 Oxford Avenue Pedestrian Bridge Match 2020 400,000.00 400,000.00 - 400,000.00 30 1001 101-01 1001 Broadway/285 Interchange Grant 2020 - - - 30 1001 101-02 1001 Broadway/285 Interchange Match 2020 1,100,000.00 1,100,000.00 - 1,100,000.00 30 1002 001 1002 Concrete Program - Accessible Ramps 1996 Ongoing 77,951.91 220,000.00 297,951.91 5,543.76 5,543.76 292,408.15 30 1005 002 1005 Jefferson Facility Rehab / Repairs 2016 Ongoing 35,334.26 35,334.26 - 35,334.26 SUBTOTAL 3,269,190.08 5,140,000.00 - 8,409,190.08 187,748.88 568,522.95 756,271.83 7,652,918.25 RECREATION 30 1301 001 1301 Broadway Medians/Lighting/Flower Pots 2016 Ongoing - - 9,960.00 9,960.00 (9,960.00) 30 1301 1308 Golf Course Fiber 2016 0.00 0.00 - 0.00 30 1301 003 1301 Tree Maintenance 2017 4,755.00 4,755.00 - 4,755.00 30 1301 005 1302 ERC Upgrades 2017 1,450,864.46 1,450,864.46 110,329.14 110,329.14 1,340,535.32 30 1301 006 1301 Parking Lots / Asphalt -PW 2017 74,581.79 74,581.79 - 74,581.79 30 1301 007 1301 Concrete Paving Santa Fe & Hampden Medians 2020 450,000.00 450,000.00 - 450,000.00 30 1301 008 1301 Park Planning Design & Project Management 2020 400,000.00 400,000.00 - 400,000.00 SUBTOTAL 0 1,530,201.25 850,000.00 - - 2,380,201.25 - 120,289.14 120,289.14 2,259,912.11 GENERAL GOVERNMENT 1501 Transfer to Capital Projects Fund 2002 Ongoing - 700,000.00 700,000.00 700,000.00 700,000.00 - 1501 Transfer to General Fund 2004 Ongoing - 127,014.00 127,014.00 127,014.00 127,014.00 - SUBTOTAL - 827,014.00 - 827,014.00 827,014.00 - 827,014.00 - - TOTALS 5,253,240.83 6,817,014.00 - 12,070,254.83 1,025,128.86 708,752.09 1,733,880.95 10,336,373.88 198,114.86 PUBLIC IMPROVEMENT FUND PROJECT STATUS AND FUND BALANCE REPORT February 28, 2020 **PRELIMINARY AS OF 3/14/20** PIF-20.xlsx 12:50 PM 3/14/2020Page 307 of 436 A B C A+B+C D E D+E A+B+C-D-E New Project Fund Bal.Budget World G/L Start Project Carry Fwd.2020 BUDGET Amend REVISED 2020 2020 TOTAL APPROP. Project Task Division PROJECT Year End Date 12/31/2019 Approp.Amendments Notes BUDGET EXPEND.ENCUMB.EXP. AND ENC.BALANCE PUBLIC IMPROVEMENT FUND PROJECT STATUS AND FUND BALANCE REPORT February 28, 2020 **PRELIMINARY AS OF 3/14/20** Revenues YTD:Actual Estimate Balance Vehicle Use Tax 216,684.07$ 1,800,000.00$ 1,583,315.93$ Building Use Tax 611,017.07 1,800,000.00 1,188,982.93 County Road and Bridge 190,000.00 190,000.00 Safe Routes to School Grant - - Transfer from General Fund 41,575.00 41,575.00 - Interest 75,494.37 75,000.00 (494.37) Total revenues 944,770.51 3,906,575.00 2,961,804.49 Exp./Enc. Y-T-D 1,733,880.95 12,070,254.83 10,336,373.88 Net Income (789,110.44) (8,163,679.83) FUND BALANCE (1/1/20)8,536,711.18 8,536,711.18 FUND BALANCE 7,747,600.74 373,031.35 Plus: Remaining Revenues 2,961,804.49 Less: Project Approp. Bal.(10,336,373.88) Less: Proj. Bal. adj. for Neg.(9,960.00) (9,960.00) UNAPPROP. FUND BAL. 363,071.35$ 363,071.35$ PIF-20.xlsx 12:50 PM 3/14/2020Page 308 of 436 2020-1st-qtr-template-for-2017-160-2017-road-material-bid-tab-1-7-20 (1) 2020-1st-qtr-template-for-2017-160-2017-road-material-bid-tab-1-7-20 (1)Page 1 PRICING VARIES AMONGSt SUPPLIERS BASED ON PACKAGING AND LOAD SIZE,ETC.CHECK THE BID EXCEPTIONS TAB FOR THIS INFORMATION. Unit of Meas. 2017 estimate Crafco, Inc. Martin Marietta Materials Requirement 307-778-8610 720-245-6404 720-245-6432 Lisa Skrettingland Tonya Bargas Anne Waldschmidt Price per unit delivered, regular business hours Price per unit delivered after business hours Price per unit, picked up, regular business hours Price per unit picked up, after business hours Price per unit delivered, regular business hours Price per unit, picked up, regular business hours FOB Factory 6555 Huron, Denver Price per unit, picked up, regular business hours FOB Factory 11401 WCR 9 3/4, Firestone Price per unit picked up, after business hours Price per unit delivered, regular business hours Price per unit delivered after business hours Price per unit, picked up, regular business hours Price per unit picked up, after business hours Price per unit delivered, regular business hours Price per unit delivered after business hours Price per unit, picked up, regular business hours Price per unit picked up, after business hours Price per unit delivered, regular business hours Price per unit delivered after business hours Price per unit, picked up, regular business hours Price per unit picked up, after business hours Price per unit delivered, regular business hours Price per unit, picked up, regular business hours Price per unit, picked up or delivered, regular business hours. Price per unit delivered, regular business hours Price per unit, picked up, regular business hours Price per unit, picked up, regular business hours Price per unit delivered, regular business hours Price per unit, picked up, regular business hours Price per unit delivered, regular business hours Price per unit delivered after business hours Price per unit, picked up, regular business hours Price per unit picked up, after business hours 1. 15% Salt, sand, aggregate mix Brighton Ton 3,000 NB NB NB NB NB NB NB NB $33.90 NB $31.30 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB Broomfield Ton 150 NB NB NB NB NB NB NB NB $37.30 NB $31.30 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB 2.a Road base class 5 Turnpike Location Jefferson County Ton 5,000 NB NB $3.50 $13.50 NB NB $9.00 No longer available NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $8.75 NB NB NB NB NB NB 2.b. Road base class 6 Turnpike Location & Nelson Location Arvada Ton 2,500 $10.00 $21.00 $3.50 $13.50 $13.22 $6.15 $10.00 $10.00 NB NB $8.90 NB NB NB NB NB NB NB NB NB NB $5.50 NB NB NB $8.75 NB NB NB NB NB NB Thornton Ton 3,000 $10.50 $21.50 $12.00 $20.00 $12.88 $6.15 $10.00 $10.00 NB NB $8.90 NB NB NB NB NB NB NB NB NB NB $5.50 NB NB NB $8.75 NB NB NB NB NB NB Thornton - 12450 Washington Location Ton 3,000 $11.50 $22.50 $12.00 $20.00 $12.88 $6.15 $10.00 $10.00 NB NB $8.90 NB NB NB NB NB NB NB NB NB NB $5.50 NB NB NB $8.75 NB NB NB NB NB NB Westminster Ton 10,000 $11.75 $22.50 $3.50 $13.50 $12.70 $6.15 $10.00 $10.00 NB NB $8.90 NB NB NB NB NB NB NB NB NB NB $5.50 NB NB NB $8.75 NB NB NB NB NB NB Brighton Ton 450 $13.00 $23.00 $12.00 $20.00 $13.40 $6.15 $10.00 $10.00 NB NB $8.90 NB NB NB NB NB NB NB NB NB NB $5.50 NB NB NB $8.75 NB NB NB NB NB NB Broomfiled Ton 2,000 $12.50 $23.00 $3.50 $13.50 $13.30 $6.15 $10.00 $10.00 NB NB $8.90 NB NB NB NB NB NB NB NB NB NB $5.50 NB NB NB $8.75 NB NB NB NB NB NB Northglenn Ton 500 $12.50 $23.00 $3.50 $13.50 $12.40 $6.15 $10.00 $10.00 NB NB $8.90 NB NB NB NB NB NB NB NB NB NB $5.50 NB NB NB $8.75 NB NB NB NB NB NB Jefferson County Ton 5,000 NB NB $3.50 $13.50 NB $6.15 $10.00 $10.00 NB NB $8.90 NB NB NB NB NB NB NB NB NB NB $5.50 NB NB NB $8.75 NB NB NB NB NB NB 3. Recycled asphalt road base *Chavers Location **DADS Location Northglenn Ton 2,000 NB NB NB NB $12.74 $6.49 $10.50 $13.00 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $12.00 NB NB NB NB NB NB Wheat Ridge Ton 100 NB NB NB NB NB $6.49 $10.50 $13.00 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $12.00 NB NB NB NB NB NB Jefferson County Ton 5,000 NB NB NB NB NB $6.49 $10.50 $13.00 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $12.00 NB NB NB NB NB NB 4.a. Bituminous asphalt, Class SX (1/2") Hot Mix Arvada Ton 4,000 NB NB NB NB NB NB $51.00 $53.00 NB NB $44.00 e Exceptions NB NB $45.00 NB NB NB NB NB NB $48.00 NB NB NB $46.95 NB NB NB NB NB NB Northglenn Ton 1,200 NB NB NB NB NB NB $51.00 $53.00 NB NB $44.00 e Exceptions NB NB $45.00 NB NB NB NB NB NB $48.00 NB NB NB $46.95 NB NB NB NB NB NB Thornton Ton 4,800 NB NB NB NB NB NB $51.00 $53.00 NB NB $44.00 e Exceptions NB NB $45.00 NB NB NB NB NB NB $48.00 NB NB NB $46.95 NB NB NB NB NB NB Westminster Ton 8,000 NB NB $51.00 $53.00 NB NB $44.00 e Exceptions NB NB $45.00 NB NB NB NB NB NB $48.00 NB NB NB $46.95 NB NB NB NB NB NB Brighton Ton 600 NB NB NB NB NB NB $51.00 $53.00 NB NB $44.00 e Exceptions NB NB $45.00 NB NB NB NB NB NB $48.00 NB NB NB $46.95 NB NB NB NB NB NB Wheat Ridge Ton 60 NB NB NB NB NB NB $51.00 $53.00 NB NB $44.00 e Exceptions NB NB $45.00 NB NB NB NB NB NB $48.00 NB NB NB $46.95 NB NB NB NB NB NB Adams County Ton 12,500 NB NB NB NB NB NB $51.00 $53.00 NB NB $44.00 e Exceptions NB NB $45.00 NB NB NB NB NB NB $48.00 NB NB NB $46.95 NB NB NB NB NB NB Centennial Ton 3,300 NB NB NB NB NB NB $51.00 $52.00 NB NB $44.00 e Exceptions NB NB $45.00 NB NB NB NB NB NB $48.00 NB NB NB $46.95 NB NB NB NB NB NB 4.b. Bituminous Asphalt, Class SX (3/4") hot mix Arvada Ton 4,000 NB NB NB NB NB NB $47.00 $50.00 NB NB $42.00 e Exceptions NB NB $43.00 NB NB NB NB NB NB $48.00 NB NB NB $45.00 NB NB NB NB NB NB Thornton Ton 2,800 NB NB NB NB NB NB $47.00 $50.00 NB NB $42.00 e Exceptions NB NB $43.00 NB NB NB NB NB NB $48.00 NB NB NB $45.00 NB NB NB NB NB NB Westminster Ton 500 NB NB NB NB NB NB $47.00 $50.00 NB NB $42.00 e Exceptions NB NB $43.00 NB NB NB NB NB NB $48.00 NB NB NB $45.00 NB NB NB NB NB NB 4.c Bituminous Asphalt, Class SG Hot Mix Jeffco Schools Ton 200 NB NB NB NB NB NB $48.00 $51.00 NB NB $41.00 e Exceptions NB NB $42.00 NB NB NB NB NB NB NB NB NB NB $43.65 NB NB NB NB NB NB 4.d Bituminous Asphalt, 3/8” “Fines” Hot Mix Arvada Ton 100 NB NB NB NB NB NB NB NB NB NB NB e Exceptions NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB Northglenn Ton 10 NB NB NB NB NB NB NB NB NB NB NB e Exceptions NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB Thornton Ton 200 NB NB NB NB NB NB NB NB NB NB NB e Exceptions NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB 5. High Performance Cold Mix $NB Arvada Ton 50 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $145.00 $135.00 NB $588.00 $588.00 NB $130.00 $99.00 NB NB NB NB Northglenn Ton 20 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $145.00 $135.00 NB $588.00 $588.00 NB $130.00 $99.00 NB NB NB NB Thornton Ton 100 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $145.00 $135.00 NB $588.00 $588.00 NB $130.00 $99.00 NB NB NB NB Westminster Ton 100 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $145.00 $135.00 NB $588.00 $588.00 NB $130.00 $99.00 NB NB NB NB Brighton Ton 50 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $145.00 $135.00 NB $588.00 $588.00 NB $130.00 $99.00 NB NB NB NB Wheat Ridge Ton 10 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $145.00 $135.00 NB $588.00 $588.00 NB $130.00 $99.00 NB NB NB NB 6. Tack Coat CSSH1 Arvada Gal.4,000 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $2.09 $2.33 $1.97 $2.05 NB NB NB $7.20 $3.12 NB NB NB NB NB $1.95 NB Thornton Gal.6,800 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $2.08 $2.32 $1.97 $2.05 NB NB NB $7.20 $3.12 NB NB NB NB NB $1.84 NB Westminster Gal.3,000 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $2.10 $2.35 $1.97 $2.05 NB NB NB $7.20 $3.12 NB NB NB NB NB $1.95 NB Brighton Gal.200 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $4.50 $5.50 $1.97 $2.05 NB NB NB $7.20 $3.12 NB NB NB NB NB $3.21 NB Jeffco Schools Gal.1,000 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $2.20 $2.40 $1.97 $2.05 NB NB NB $7.20 $3.12 NB NB NB NB NB $1.95 NB Jefferson County Gal.45,000 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $2.00 $2.32 $1.95 $1.97 NB NB NB $7.20 $3.12 NB NB NB NB NB $1.84 NB Broomfield Gal.250 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $4.25 $5.50 $1.97 $2.05 NB NB NB $7.20 $3.12 NB NB NB NB NB $3.21 NB Wheat Ridge Gal.200 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $4.50 $5.50 $1.97 $2.05 NB NB NB $7.20 $3.12 NB NB NB NB NB $3.21 NB 7. ¼” Pea Gravel *Chavers Location Thornton Ton 50 NB NB NB NB NB NB $12.00 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB Longmont Ton 150 NB NB NB NB NB NB $12.00 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB 8. Top Soil Unclassified Thornton Ton 50 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB Longmont Ton 150 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB 9. Squeegee *Chavers Location Arvada Ton 600 $14.50 $22.00 $11.00 $20.00 NB NB $9.00 $9.00 NB NB $17.80 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB Northglenn Ton 1,000 $14.50 $22.00 $11.00 $20.00 NB NB $9.00 $9.00 NB NB $17.80 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB Thornton Ton 150 $14.50 $22.00 $11.00 $20.00 NB NB $9.00 $9.00 NB NB $17.80 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB Westminster Ton 8,000 $14.50 $22.00 $11.00 $20.00 NB NB $9.00 $9.00 NB NB $17.80 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB Brighton Ton 100 $14.00 $22.00 $11.00 $20.00 NB NB $9.00 $9.00 NB NB $17.80 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB Jefferson County Ton 30,000 NB NB $10.00 $20.00 NB NB $9.00 $9.00 NB NB $17.80 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB Jeffco Schools Ton 2,500 NB NB $10.00 $20.00 NB NB $9.00 $9.00 NB NB $17.80 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB 10. Washed concrete Sand Thornton Ton 20 NB NB NB NB NB NB No longer available No longer available NB NB $16.05 NB NB NB NB NB NB NB NB NB NB NB NB NB NB $11.00 NB NB NB NB NB NB Albert Frei and Sons 303-289-1837, after hours 303-913-6541 Joseph Frei Brannan Sand & Gravel, Pit R - Aggregates, Lipan, 62nd & I-76 - Asphalt Plants 303-853-5146 Quikrete Companies LLC, dba QPR 800-388-4338 Lloyd Washington Cobitco, Inc. 303-296-8575 Todd Mellema 303-289-3366 Russell Hawkins 303-902-5014, or 303-994-0408 303-853-5146 Allied Recycled Aggregates Jason Clark Myra Thornton Denver Industrial Sales & Service Co. 303-935-2485 Roy Kimble Asphalt Specialties Company, Inc. 303-505-1307 Colorado Asphalt Services, Inc.Vance Bros., Inc. 303-341-2604 Drew Vance Brannan Sand & Gravel, Rock Creek - Asphalt Plant Brett Schalamon, Gary Stillmunkes Rock Creek Asphalt Plant, 1240 Rock Creek Circle, Lafayette Page 309 of 436 2020-1st-qtr-template-for-2017-160-2017-road-material-bid-tab-1-7-20 (1) 2020-1st-qtr-template-for-2017-160-2017-road-material-bid-tab-1-7-20 (1)Page 2 PRICING VARIES AMONGSt SUPPLIERS BASED ON PACKAGING AND LOAD SIZE,ETC.CHECK THE BID EXCEPTIONS TAB FOR THIS INFORMATION. Unit of Meas. 2017 estimate Crafco, Inc. Martin Marietta Materials Requirement 307-778-8610 720-245-6404 720-245-6432 Lisa Skrettingland Tonya Bargas Anne Waldschmidt Price per unit delivered, regular business hours Price per unit delivered after business hours Price per unit, picked up, regular business hours Price per unit picked up, after business hours Price per unit delivered, regular business hours Price per unit, picked up, regular business hours FOB Factory 6555 Huron, Denver Price per unit, picked up, regular business hours FOB Factory 11401 WCR 9 3/4, Firestone Price per unit picked up, after business hours Price per unit delivered, regular business hours Price per unit delivered after business hours Price per unit, picked up, regular business hours Price per unit picked up, after business hours Price per unit delivered, regular business hours Price per unit delivered after business hours Price per unit, picked up, regular business hours Price per unit picked up, after business hours Price per unit delivered, regular business hours Price per unit delivered after business hours Price per unit, picked up, regular business hours Price per unit picked up, after business hours Price per unit delivered, regular business hours Price per unit, picked up, regular business hours Price per unit, picked up or delivered, regular business hours. Price per unit delivered, regular business hours Price per unit, picked up, regular business hours Price per unit, picked up, regular business hours Price per unit delivered, regular business hours Price per unit, picked up, regular business hours Price per unit delivered, regular business hours Price per unit delivered after business hours Price per unit, picked up, regular business hours Price per unit picked up, after business hours Albert Frei and Sons 303-289-1837, after hours 303-913-6541 Joseph Frei Brannan Sand & Gravel, Pit R - Aggregates, Lipan, 62nd & I-76 - Asphalt Plants 303-853-5146 Quikrete Companies LLC, dba QPR 800-388-4338 Lloyd Washington Cobitco, Inc. 303-296-8575 Todd Mellema 303-289-3366 Russell Hawkins 303-902-5014, or 303-994-0408 303-853-5146 Allied Recycled Aggregates Jason Clark Myra Thornton Denver Industrial Sales & Service Co. 303-935-2485 Roy Kimble Asphalt Specialties Company, Inc. 303-505-1307 Colorado Asphalt Services, Inc.Vance Bros., Inc. 303-341-2604 Drew Vance Brannan Sand & Gravel, Rock Creek - Asphalt Plant Brett Schalamon, Gary Stillmunkes Rock Creek Asphalt Plant, 1240 Rock Creek Circle, Lafayette Longmont Ton 50 NB NB NB NB NB NB No longer available No longer available NB NB $16.05 NB NB NB NB NB NB NB NB NB NB NB NB NB NB $11.00 NB NB NB NB NB NB 11. 1 ½” Washed rock Arvada Ton 150 $30.00 NB $26.00 NB NB NB NB NB NB NB $28.30 NB NB NB NB NB NB NB NB NB NB NB NB NB NB $28.00 NB NB NB NB NB NB Northglenn Ton 50 $30.00 NB $26.00 NB NB NB NB NB NB NB $28.30 NB NB NB NB NB NB NB NB NB NB NB NB NB NB $28.00 NB NB NB NB NB NB Thornton Ton 300 $30.00 NB $26.00 NB NB NB NB NB NB NB $28.30 NB NB NB NB NB NB NB NB NB NB NB NB NB NB $28.00 NB NB NB NB NB NB Westminster Ton 50 $30.00 NB $26.00 NB NB NB NB NB NB NB $28.30 NB NB NB NB NB NB NB NB NB NB NB NB NB NB $28.00 NB NB NB NB NB NB Aurora Ton 500 $30.00 NB $26.00 NB NB NB NB NB NB NB $28.30 NB NB NB NB NB NB NB NB NB NB NB NB NB NB $28.00 NB NB NB NB NB NB Jefferson County Ton 1,000 NB NB $26.00 NB NB NB NB NB NB NB $28.30 NB NB NB NB NB NB NB NB NB NB NB NB NB NB $28.00 NB NB NB NB NB NB 12. ¾” Crushed Rock Thornton Ton 300 $22.00 NB $16.00 NB NB NB NB NB NB NB $28.30 NB NB NB NB NB NB NB NB NB NB NB NB NB NB $21.50 NB NB NB NB NB NB Jeffco Schools Ton 1,000 NB NB $16.00 NB NB NB NB NB NB NB $28.30 NB NB NB NB NB NB NB NB NB NB NB NB NB NB $21.50 NB NB NB NB NB NB 13.a. Rip rap rock – type M, 12" Dia. Thornton Ton 300 $22.00 NB $16.00 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $20.00 NB NB NB NB NB NB Arvada Ton 100 $21.00 NB $16.00 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $20.00 NB NB NB NB NB NB Brighton Ton 15 $25.00 NB $16.00 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $20.00 NB NB NB NB NB NB Jefferson County Ton 500 NB NB $16.00 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $20.00 NB NB NB NB NB NB 13.b. Rip rap rock – type L, 9" Dia.$NB Jefferson County Ton 500 NB NB $16.00 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $20.00 NB NB NB NB NB NB 13.c. Rip rap rock – type H, 18" Dia. Arvada Ton 100 $23.00 NB $18.00 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $24.00 NB NB NB NB NB NB Thornton Ton 50 $24.00 NB $18.00 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $24.00 NB NB NB NB NB NB Jeffco Schools Ton 50 NB NB $18.00 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $24.00 NB NB NB NB NB NB Jefferson County Ton 500 NB NB $18.00 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $24.00 NB NB NB NB NB NB 14. Hot Poured Joint/Crack Seal Material Northglenn LBS.60,000 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $0.4445 $0.500 $0.500 NB $0.52 NB NB NB $0.50 NB Arvada LBS.50,000 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $0.4445 $0.500 $0.500 NB $0.52 NB NB NB $0.50 NB Thornton LBS.95,000 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $0.4445 $0.500 $0.500 NB $0.52 NB NB NB $0.50 NB Westminster LBS.100,000 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $0.4445 $0.500 $0.500 NB $0.52 NB NB NB $0.50 NB Jefferson County LBS.250,000 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $0.4445 $0.500 $0.500 NB $0.52 NB NB NB $0.50 NB 15.a Concrete Class A 4,500 PSI with Fiber Mesh (Delivered) Arvada CY 600 NB NB NB NB NB NB NB NB $195.00 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB Brighton CY 80 NB NB NB NB NB NB NB NB $195.00 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB 15.b. Concrete Class D 4500 PSI with Fiber Mesh (Delivered) Broomfield CY 800 NB NB NB NB NB NB NB NB $195.00 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB 16. Recycled Concrete Material (3/4”) Arvada Ton 3,000 NB NB NB NB $13.22 $6.15 $9.00 $11.00 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $8.50 NB NB NB NB NB NB Thornton Ton 200 NB NB NB NB $12.88 $6.15 $9.00 $11.00 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $8.50 NB NB NB NB NB NB Brighton Ton 120 NB NB NB NB $13.40 $6.15 $9.00 $11.00 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $8.50 NB NB NB NB NB NB Jeffco Schools Ton 200 NB NB NB NB NB $6.15 $9.00 $11.00 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $8.50 NB NB NB NB NB NB Broomfield Ton 600 NB NB NB NB $13.30 $6.15 $9.00 $11.00 NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB NB $8.50 NB NB NB NB NB NB 17. Crusher Fines Longmont Ton 150 $15.00 NB $6.00 NB No longer available No longer available NB NB NB NB $17.55 NB NB NB NB NB NB NB NB NB NB NB NB NB NB $4.50 NB NB NB NB NB NB * Chavers - 12367 WCR 8, Ft Lupton, CO 80621 ** DADS - 3500 S. Gun Club Rd, Aurora, CO 80010 Chavers Location & DADS Location Turnpike Pit-599 SH 52 Erie, CO 80516 Nelson Pit - 6755 CR 26 Longmont, CO 80504 Page 310 of 436 Page 311 of 436 Page 312 of 436 received time City horn sing Of?c Drive nton,802 www.RockyMountainBidSystem.corn sponsi Docum dden Purch ocated of C eceived after the deadline sgecified III.NOTICE INVITATION FOR BID The Agencies of the Cities of Northglenn,Thornton,Westminster,Brighton,Aurora, Wheat Ridge,and Longmont,as well as the City and County of Broomfield,Adams County,Jefferson County,and Jefferson County Schools,acting collectively through their authorized procurement officials,respectfully request separate sealed Bids for the purchase of "Sand,Aggregate and Road Materials,MAPO Bid No.2017-160”.Bids will be until 5:00 p.m.,local on June 22,2017,in the of T ton Purcha e,9500 Civic Center ,2”“Floor City Hall,Thor CO 29- 4326. Purchases will be authorized by issuance of a Purchase Order from the respective Agencies.Product is to be provided on an as-needed basis.Nothing herein shall guarantee a minimum purchase amount.The initial term of the resulting Purchase Orders shall terminate on December 31,2017;however,the participating MAPO agencies shall have the option of renewing for up to four (4)additional one (1)year terms. The awarded Vendor must hold the Bid prices quoted firm until September 30,2017,after which time the Vendor may request quarterly price adjustments for inflation based on the Denver-Boulder-Greeley Consumer Price Index (CPI)upon mutual agreement of the Parties. Thornton utilizes the Rocky Mountain E-Purchasing System (RMEPS)at to distribute official copies of the Invitation for Bid (“Bid Documents”)for use in preparing Bid.Bidders will be required to register with the website to download the Bid Documents and Addenda.If you experience problems with the RMEPS website,please call 1-800-835-4603 for assistance.There is no charge by Rocky Mountain E-Purchasing for this service.Bidders are required to acknowledge all Addenda with their Bid Proposal and are encouraged to either register with the website or to view the Addenda posted on the Contracts and Purchasing bulletin board prior to submission of a Bid Proposal.Bidders that do not acknowledge all Addenda may be considered non-re ve.The Bid ents,including A da,are also available for viewing at the asing Office I on the 2”“floor ity Hall at 9500 Civic Center Drive,Thornton,CO.Bidders that do not have download and/or printing capability in-house may contact a commercial reprographics company for assistance with downloading and printing the Bid Documents. Bids shall be submitted in a sealed envelope plainly marked on the outside with the Bidder’s name and address and “Sand,Aggregate and Road Materials,MAPO Bid No. 2017-160”.Bid delivered by mail or courier service shall be in the sealed envelope inserted into a separate mailing envelope.On the outside of the mailing envelope note “Bid Proposal Enclosed,Sand,Aggregate and Road Materials,MAPO Bid No.2017- 160". No Bids will be considered which are r .Any Bids received after the deadline will be returned to the Bidder unopened and will not be considered under any circumstances.Sole responsibility rests with the Bidder to see that its Bid is received by the deadline. Page 3 of 42 S:\SS\C-P\MAPO\2017-160 MAPO Sand 8:Aggregate\2017-1 60 MAPO IFB 5-30-17 Rev.4/2016 Page 313 of 436 dan.ga|anaugh@ciLyofthomton.net an Bids submitted must equal or exceed the specifications contained herein.Thornton reserves the right to reject any and all Bids,or any part thereof,and to waive any formalities or informaiities contained in a Bid,and to award the Purchase Order to the lowest responsive,responsible,and trustworthy Bidder,as deemed in the best interest of the participating Agencies. Any questions concerning this Invitation for Bid shall be directed in writing to:The City of Thornton,9500 Civic Center Drive,Thornton,CO 80229-4326,Attention:Dan Galanaugh,CPPB,Purchasing Manager,Fax No.303-538-7556,E-mail — ,between the hours of 8:00 a.m.and 5:00 p.m., Monday through Friday,excluding holidays. The deadline for submission of questions is seven (7)Calendar Days prior to the date set for submission of Bids. First Published:June 1,2017,Northglenn-Thornton Sentinel Last Published:June 8,2017,Northglenn-Thornton Sentinel BY Galanaugh,CPPB Purchasing Manager Page 4 of 42 S:\SS\C-P\MAPO\2017-160 MAPO Sand &Aggregate\2017-160 MAPO IFB 5-30-17 Rev.4/2016 Page 314 of 436 Page 315 of 436 Page 316 of 436 Page 317 of 436 ADDITL ,, W|T__,,,,,, , 9.SPECIFICATION DEVIATIONS BY THE BIDDER Any deviation from the specifications @ST be noted in detail and submitted i nwritingwiththeBid.Complete specifications should be attached for any substitutions offered,or when amplifications or clarifications are desirable or necessary.The absence of the specification deviation statement and accompanying specifications will hold the Bidder strictly accountable to the specifications as written herein.Failure to submit this document of specification deviation,if applicable,shall be grounds for rejection of the item(s)when offered for delivery.If specifications or descriptive papers are submitted with the Bid,the Bidder's name should be clearly shown on each document. The specifications,as listed herein,represent an estimation of acceptable product; however,the Agencies are fully cognizant that no two (2)products from different manufacturers are identical.Therefore,if Bidder’s products are similar and/or same in size,function,and operation,but some of the specifications do not completely coincide with the specifications as listed,Bidder shall list exceptions and explanations separately.Unless the product is identified as being a sole source specification,the Agencies do not intend to write specifications for a product for which only one (1)manufacturer can submit a Bid. 10.SPECIFICATION CHANGES AFTER AWARD Any changes in specifications after the Purchase Order has been awarded must be with the written consent of the Agency’s Purchasing Division. 11.BROCHURES Bids shall include adequate brochures,latest printed specifications and advertising literature describing the product(s)offered in such fashion as to permit ready comparison with the Agencies’specifications on an item-by-item basis,where applicable. 12.SPECIFICATION CHANGES.ONS.AND DELETIONS All changes in specifications made by the Agencies,prior to the submission o fBids,shall be in writing and furnished to Q Bidders in an Addendum.Verbal information obtained by Bidders will Q be considered,and Bidders shall not be entitled to rely on verbal information. 13.BID AMENDMENTS OR HDRAWAL REQUESTS Amendments to or withdrawal requests on Bids received after the deadline fo rsubmittingBidswillbevoidregardlessofwhentheyweremailed. Page 8 of 42 S:\SS\C-P\MAPO\2017-160 MAPO Sand 8.Aggregate\2017-160 MAPO IFB 5-30-17 Rev.4/2016 Page 318 of 436 r.Bob West S:\SS\C-P\MAPO\2017-160 MAPO Sand &Aggregate\2017-160 MAPO IFB 5-30-17 PRODUCT DELIVERY LOCATION Delivery shall be made F.O.B.destination to the following locations: City of Northglenn Attention:Mr.Gene Maypole or Mr.Scott Rafferty 12301 Claude Court Northglenn,CO 80233 Unloading Hours:7:00 a.m.—3:30 p.m Phone Number:303-280-7817 City of Thornton Municipal Service Center Attention:Mr.Dave Gonzales 8651 Colorado Boulevard Thornton,CO 80229 Unloading Hours:7:00 a.m.—4:00 p.m. Phone Number:720-977-6405 City of Westminster Municipal Service Center Attention:Mr.Dave Cantu 6575 West 88"‘Avenue Westminster,CO 80031 Unloading Hours:7:00 a.m.—5:00 p.m Phone Number:303-658-2520 City of Aurora Water T &D 13645 East Ellsworth Avenue Aurora,CO 80012 City and County of Broomfield Norman Smith Center Attention:Ms.Mary Hall,Utilities or M Gowey,Streets 3001 124"‘Avenue Broomfield,CO 80020 City of Thornton Infrastructure Maintenance Center Attention:Mr.Dave Gonzales 12450 Washington Street Thornton,CO 80241 Unloading Hours:7:00 a.m.—4:00 p.m Phone Number:720-977-6405 City of Brighton Street Division Attention:Mr.Bob Younger 401 Longspeak Street Brighton,CO 80601 Unloading Hours:8:00 a.m.—4:00 p.m Phone Number:303-655-2088 City of Longmont Public Works Department Attention:Mr.Nick Banfe 375 Airport Road Longmont,CO 80503 Unloading Hours:8:00 a.m.—4:00 p.m. Phone Number:303-651-8461 Material for the following shall be F.O.B.ship pointvia Agency truck: Jefferson County Jefferson County Schools Pick-up only Pick-up only City of Wheat Ridge Pick-up only Page 9 of 42 Rev.4/2016 Page 319 of 436 Page 320 of 436 Page 321 of 436 Page 322 of 436 Page 323 of 436 Page 324 of 436 Page 325 of 436 Material transgortation unloading other cost V.INSTRUCTIONS TO BIDDERS 1.Bidders shall submit the following Bid documents Exhibit 1 Bid Form. Exhibit 2 Acceptance of Conditions Statement and Addenda Acknowledgement Exhibit 3 Reference Authorization and Release Form Exhibit4 Reference Form Exhibit 5 Affidavit Product Specifications Sheets ."".F"'.U.0.W.> 2 The apparent successful Bidder,if it is an individual or sole proprietor,will be required to submit Exhibit 5,Affidavit,and the applicable identification prior to award of a Purchase Order. 3 The apparent successful Bidder will be required to submit a signed W-9 Form prio rtoanAgencyissuingaPurchaseOrder. 4 It is not necessary to include the entire Invitation for Bid that has been provided by Thornton in your response. SPECIAL INSTRUCTIONS TO BIDDERS COLLECTIVE 1.The Agencies of the Cities of Northglenn,Thornton,Westminster,Brighton,Aurora, Wheat Ridge,and Longmont,as well as the City and County of Broomfield,Adams County,Jefferson County,and Jefferson County Schools,hereinafter called the Agencies,invite you to Bid on 2017 Sand,Aggregate and Road Material.MAPO Bid No.2017-160.The quantities listed are estimates for the remainder of the 2017 Calendar Year requirements and are for Bid purposes only. 2.All Material shall be Bid on a per unit price.Such unit price shall reflect all costs for ,,,or any which will be incurred as a result of purchasing material from a particular supplier.Bids which do not include the unit prices shall be considered irregular,and at the option of the Agencies, may be eliminated from further consideration.All conditions under which additional charges may be incurred,i.e.,depositldemurrage,must be specifically stated on your Bid Form.Failure to specify these conditions may result in rejection of payment for such charges. 3.Contract Period -The term of the Contract shall be from the date of Award through December 31,2017,with the option to renew annually for up to four (4)one (1)year terms.The option to renew this will expire in December of 2021. Page 16 of 42 S:\SS\C-P\MAPO\2017-160 MAPO Sand 8-Aggregate\2017-160 MAPO IFB 5-30-17 Rev.4/2016 Page 326 of 436 Page 327 of 436 Page 328 of 436 Page 329 of 436 Page 330 of 436 TERMS _,_,,,,,, 10. 11. 12. S:\SS\C-P\MAPO\2017-160 MAPO Sand &Aggregate\2017-160 MAPO IFB 5-30-17 provided herein,the Vendor shall be paid for the product provided.If the Purchase Order is terminated due to the fault of the Vendor,the provisions governing termination for cause shall apply. TERMINATION FOR CAUSE If,through any cause,the Vendor fails to fulfill in a timely and proper manner its obligations,or if the Vendor violates any of the covenants,agreements or stipulations in a resulting Purchase Order,Agency shall have the right to terminate the Purchase Order for Cause by giving written notice to the Vendor of such termination and specifying the effective date of the termination.in that event,any product provided may,at Agency’s sole option,become Agency’s property and the Vendor shall be entitled to receive just,equitable compensation for any such product provided,or Agency may return any product provided to the Vendor at Vendor’s expense and Agency shall have no financial obligation to recompense the Vendor for any costs. Notwithstanding the above,Vendor shall not be relieved of liability to Agency for damage sustained by Agency by virtue of Vendor’s breach of the Invitation for Bi dorthePurchaseOrdertermsandconditions,and Agency may withhold any payments due,or that become due,to the Vendor for the purpose of set off unti lsuchtimeastheexactamountofdamagesincurredbyAgencyisdetermined. NON-APPROPRIATION OF FUNDS In the event the legislative body of any participating agency fails to appropriate funds for the continuation of a multi-term Purchase Order for any fiscal year past the first fiscal year,the Agency may,at the beginning of the fiscal year for which its legislative body does not appropriate funds and upon thirty (30)Calendar Days prior written notice,terminate the Purchase Order without penalty and thereupon be released of any further obligations. PATENT GUARANTEE Vendor shall,with respect to any device or composition of Vendor's design or standard manufacture,defend,indemnify and hold harmless Agency,its employees,officers,agents,and customers,from any costs and damages as finally determined by any court of competent jurisdiction for infringement of any United States Letters Patent,by reason of the sale or normal use of such device or composition. ACCEPTANCE OF BY SHIPMENT Shipment of all or any portion of the products covered by a resulting Purchase Order shall be deemed an acceptance by the Vendor of the Purchase Order upon the terms,conditions,and prices set forth herein. Page 21 of 42 Rev.4/2016 Page 331 of 436 Page 332 of 436 Page 333 of 436 AP.Invoices cit ofthorntonnet 16.INVOICES All invoices submitted shall show Agency’s Purchase Order Number. Thornton’s preference is for Vendors to e-mail a pdf version of invoices to or hard copies may be submitted to City of Thornton,Accounts Payable,9500 Civic Center Drive,Thornton,CO 80229- 4326.Invoices sent to anyone other than Accounts Payable are not considered to be properly submitted.Standard payment terms are net thirty (30)Calendar Days after receipt of an invoice. 17.INDEMNIFICATION To the fullest extent permitted by law,Vendor agrees to defend,indemnify and hold harmless Agency,its officers,agents and employees,from and against all liability,judgments,damages or losses which arise out of,result from,or are in any manner connected with the Services to be performed under this Agreement, to the extent it is determined such liability,judgments,damages or losses were caused by the negligent acts,errors,or omissions of Vendor,any subcontractor of Vendor,or any officer,employee or agent of Vendor,or anyone else employed directly or indirectly by any of them or anyone for whose acts any of them may be liable and will pay to Agency any expenses incurred by reason of such liability, judgments,damages or losses,including,but not limited to,court costs and reasonable attorneys’fees incurred in defending or investigating such claims. Such payments on behalf of Agency shall be in addition to any and all other legal remedies available to Agency and shall not be considered Agency’s exclusive remedy. 18.INSURANCE A The Vendor agrees to procure and maintain in force during the term of a resulting Purchase Order,at its own cost,the following coverages: 1 Workers‘Compensation insurance as required by the Labor Code of the State of Colorado and Employer's Liability Insurance.Evidence of qualified self-insured status may be substituted. 2.Commercial General Liability insurance (MINIMUMLIMITS) (1)Each Occurrence $1,000,000 (2)Products/Completed Operations Aggregate $1,000,000 (3)Personal and Advertising Injury $1,000,000 (4)General Aggregate $1,000,000 The policy shall include coverage protecting against bodily injury, property damage,and personal injury claims arising from the exposures of (1)premises-operations;(2)products and completed operations including materials designed,furnished,and/or modified in any way by Vendor;(3)independent subcontractors;(4)contractual Page 24 of 42 S:\SS\C-P\MAPO\2017-160 MAPO Sand &Aggregate\2017-160 MAPO IFB 5-30-17 Rev.4/2016 Page 334 of 436 Page 335 of 436 cerli?catesofinsurance@cityofthorntonnet obligations assumed by Vendor.The coverage shall not exclude faulty workmanship as a covered occurrence. C Vendor shall name Agency,its officer,agents,and employees as additional insureds with respect to the commercial general liabilit ycoverageabove.Certificates of Insurance shall be completed and forwarded,along with Additional Insured Endorsements,to Agency as evidence that policies providing the required coverages,conditions,and minimum limits are in full force and effect and shall be subject to review and approval by Agency prior to providing any product under a resulting Purchase Order.The initial completed Certificate(s)of Insurance and Additional Insured Endorsement(s)shall include the Vendor’s e-mail address for future inquiries and updates,and shall be sent to: City of Thornton Dan Galanaugh,CPPB,Purchasing Manager 9500 Civic Center Drive Thornton,CO 80229-4326 Subsequent Certificates of Insurance indicating renewal of coverage(s)shall be sent to Thornton’s Risk Manager at no later than thirty (30)Calendar Days prior to the expiration date.Indicate “Renewal CO|”and the Project Number in the e-mail subject line. D Failure on the part of Vendor or a subcontractor to procure or maintain policies providing the required coverages,conditions,and minimum limit sshallconstituteamaterialbreachofcontractuponwhichAgencymay immediately terminate their Purchase Order,or at its discretion,Agency 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 paid by Agency shall be repaid by Vendor upon demand,or Agency may offset the cost of the premiums against any monies due,or that become due to Vendor. E Agency reserves the right to request and receive a certified copy of any policy and any endorsement thereto.Vendor agrees to execute any and all documents necessary to allow Agency access to any and all insurance policies and endorsements pertaining to a resulting Purchase Order. F Every policy required above shall be primary insurance and any insurance carried by Agency,its officers,or its employees shall be excess and not contributory insurance to that provided by Vendor.Vendor shall be solely responsible for any deductible losses under the policies required above. Page 26 of 42 S:\SS\C-P\MAPO\2017-160 MAPOSand &Aggregate\2017-160 MAPO IFB 5-30-17 Rev.4/2016 Page 336 of 436 Page 337 of 436 Page 338 of 436 Page 339 of 436 Percent gassing VII.SPECIFICATIONS 1.Fifteen percent (15%)Salt/Sand Aggregate Mixture: Fifteen percent (15%)salt/sand aggregate:One hundred percent (100%) passing 3/8”sieve and two percent (2%)or less passing #100 sieve. Delivery shall be made in single,tandem axle dump trucks or end dump trailers.Shipments in belly dump trailers will not be accepted. Fifteen percent (15%)salt/sand aggregate shall be delivered within four (4) hours of notification,including weekends and holidays. Salt/sand aggregate shall meet Colorado Department of Health Regulation 16 regarding aggregate Specifications. Testing and Material certification reports shall be provided in accordance with Colorado Department of Health Regulation 16. Material shall be free flowing and void of any lumps or clods of solidifie dMaterial. 2 Class 2,4,5,and 6 Road Base:Material will be in accordance with all requirements of the Colorado Department of Transportation (CDOT)“Standard Specifications for Road and Bridge Construction”,Latest Edition,Section 309. 3 Recycled Asphalt Road Base:Material to be crushed asphalt graded at 3/4” Sieve Size 3/4”100% #4 30%-65% #8 25%-55% #200 3%-12% 4 Bituminous Asphalt:Material will be in accordance with all requirements of the CDOT “Standard Specifications for Road and Bridge Construction”,Latest Edition, Section 702 and 703. a) b) c) d) e) f) 9) Bituminous Asphalt Class SX Cold Mix Class SX Hot Mix Class S Hot Mix Class SG Hot Mix Class E Hot Mix 3/8”“Fines”Hot Mix 5 Half inch (‘/2’’)Aggregate Cold Mix:Open graded polymer emulsion mix.Emulsion will be a high float mixing grade type made from polymer-modified asphalt UPM or equal.Lightweight aggregate mixes shall conform to ASTM C-330. S:\SS\C-P\MAPO\2017-160 MAPO Sand &Aggregate\2017-160 MAPO IFB 5-30-17 Page 30 of 42 Rev.4/2016 Page 340 of 436 Percent Passing Percent Passing Percent Passing 100% 0%-5% Percent Passing Percent Passing 10 11. 12. 13. Asphalt content will be five percent (5%)—six percent (6%)based on mix weight. Aggregate will consist of a crushed limestone or approved equal,complying with the requirements of ASTM C-136 for stone size #9 or #89 in the following manner: #9 #89 Sieve size 100%3/8” 85%-100%#4 10%-40%#8 0%-10%#16 0%-5%#50 EZ Street Cold Mix Asphalt Polymer Modified Tack Coat:CSS1H. Pea Gravel:Approximately %”. Topsoil:Unclassified. 90%-100% 20°/o -55% 5%-30% 0%-10% 0%-5% Reference “USDA Triangle of Physical Characteristics of Soil”—loam sand forty percent (40%),silt forty-five percent (45%),clay fifteen percent (15%). Squeegee: Sieve Size 3/8” #200 Washed Concrete Sand:CDOT Standard Section 700 Washed Rock (1%”):CDOT Standard Section 700. Sieve Size 2,. 1W’ 1.. 1%.. %,. Crushed Rock (%”):CDOT Standard Section 700 Sieve Size 1., W W. W #4 Page 31 of 42 S:\SS\C-P\MAPO\2017-160 MAPO Sand &Aggregate\2017-160 MAPO IFB 5-30-17 100% 90%-100% 20%-55% 0%-15% 0%-5% 100°/o 90%-100% 20%-55% 0%-15% 0%-5% Rev.4/2016 Page 341 of 436 Percent Passing 14 15 16. 17. S:\SS\C-P\MAPO\2017-160 MAPO Sand 8-Aggregate\2017-160 MAPO IFB 5-30-17 Rip Rap Rock:Type L —9”diameter,Type M —12”diameter,Type H —18” diameter. Hot-Poured Joint/Crack Seal Material:This Material shall conform to ASTM D 3405- 78 for hot-poured joint sealant.The following requirements shall also apply: a)Each container shall not exceed fifty (50)pounds,including Material. b)Container shall not deform when exposed to ambient air temperature for a period of up to and including twelve (12)months. c)Percentage of crumb rubber shall be specified in your Bid. d)Material shall cure immediately upon cooling to ambient air temperature and shall not track or require the use of sand to prevent tracking. e)The Agencies may require a sample of the Material in sufficient quantity for evaluation purposes prior to purchase. f)Material may be ordered in one (1)or two (2)bulk purchases. g)Price Bid shall include delivery to designated locations. h)Material shall readily pour and penetrate cracks when heated to three hundred seventy-five degrees (375°)F —four hundred degrees (400°)F. Concrete:CDOT Standards Specifications for Road and Bridge Construction,Latest Edition,Class A,B,and D with 4,500 PSI with fiber mesh,Section 601 and related. Recycled Concrete Material (%”): Sieve Size 1"100% %”70% #4 50% #10 40% #40 20% #200 6% l.A.R.High Performance Cold Mix Repair Material.Substitutions are not allowed as this is for test purposes only. Crusher Fines:Small particles of crushed rock ground to a range of particle sizes from a fine dust up to a specified 3/8"maximum particle size. Page 32 of 42 Rev.4/2016 Page 342 of 436 Page 343 of 436 Page 344 of 436 Page 345 of 436 Page 346 of 436 ber: #1 Pit Number Pit Address Pit Phone Number: Contact: #2 Pit Number Pit Address Pit Phone Num Contact: #3 Pit Number Pit Address: Pit Phone Number Contact: #4 Pit Number Pit Address Pit Phone Number Contact: #5 Pit Number Pit Address Pit Phone Number Contact: Exceptions or deviations to specifications,or state "No Exceptions" PIT LOCATIONS Page 37 of 42 S:\SS\C-P\MAPO\2017-160 MAPO Sand 8:Aggregate\2017-160 MAPO IFB 5-30-17 Rev.4/2016 Page 347 of 436 Page 348 of 436 To: X.EXHIBIT “3” REFERENCE AUTHORIZATION AND RELEASE FORM A Corporation By:A Partnership whose address is (Bidder)An Individual Bidder has submitted a sealed Bid to the City of Thornton (Thornton)for procurement of “Sand,Aggregate and Road Material”,MAPO Bid No.2017-160. Bidder hereby authorizes Thornton to perform such investigation of Bidder as Thornton deems necessary to establish the qualifications,responsibility,trustworthiness and financial ability of Bidder.By its signature hereon,Bidder authorizes Thornton to obtain reference information concerning Bidder and releases the party providing such information named above and Thornton from any and all liability to Bidder as a result of any such reference information provided. Bidder further waives any right to receive copies of reference information provided to Thornton.A copy or facsimile of this executed Reference Authorization and Release Form may be used with the same effectiveness as an original. By: Title: Date: Page 39 of 42 S:\SS\C-P\MAPO\2017-160 MAPO Sand &Aggregate\2017-160 MAPO IFB 5-30-17 Rev.4/2016 Page 349 of 436 Page 350 of 436 Page 351 of 436 Page 352 of 436 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Tim Hoos DEPARTMENT: Public Works DATE: April 20, 2020 SUBJECT: Award of Contract to Sabell's Civil and Landscape, LLC for construction of the Romans Park Retaining Wall. DESCRIPTION: Award of Contract to Sabell's Civil and Landscape, LLC for construction of the Romans Park Retaining Wall. RECOMMENDATION: Staff recommends approving, by motion, a contract with Sabell's Civil and Landscape, LLC in the amount of $248,600.20 for the Romans Park Retaining Wall Project with allowance for a 10% contingency in the amount of $24,860 to account for unknown circumstances that might be encountered on the project. This 10% contingency will only be utilized, if necessary, to account for items not already in the plans. PREVIOUS COUNCIL ACTION: N/A SUMMARY: The City issued an invitation for bids on February 25, 2020 and received four bids in response on March 17, 2020. The total bid from the low bidder, Sabell's Civil and Landscape, LLC, was $39,516.50 more than the Engineer's Estimate. However, since another bid came in at nearly the same price as the low bidder, staff is confident that the low bid is a reasonable cost for this work. Sabell's Civil and Landscape, LLC, has successfully performed similar work in the past and staff feels that they will perform this work in accordance with the City's bid documents. Staff conducted reference checks and all came back favorable. ANALYSIS: This project will remove and replace an existing failed retaining wall with a new retaining wall for future integration into the proposed Romans Park tennis courts by the Parks and Recreation Department. All work will be completed prior to the installation of the new tennis courts. Bidding & Selection Process • Plans and specifications for this project were prepared by City staff and SDG Structural Engineers. • Bids were solicited through a formal bidding process which was advertised on the Rocky Mountain BidNet website beginning on February 25, 2020. Page 353 of 436 • One (1) addendum was issued in light of revised quantity estimates from SDG Structural Engineers. • Bids were opened publicly at 2:00 p.m. on March 17, 2020. • Four (4) bids were received. Project Schedule Per the contract terms, all work must be completed no later than 60 calendar days after the Notice to Proceed date. The Notice to Proceed is anticipated to be issued on or about April 28, 2020 which would result in a contract completion date of June 27, 2020. Project Communication A letter or post card will be mailed to all affected property owners in advance of the start of construction. This letter will be shared with City Council, via the weekly Council Update, at or around the same time as the letters are mailed to property owners. Door hangers will be distributed to individual properties, by the contractor, approximately 48 hours prior to the start of work on a particular segment. FINANCIAL IMPLICATIONS: Staff issued an Invitation to Bid (ITB) on February 25, 2020. Four bids were received on March 17, 2020 as summarized below. A detailed summary of the bid results is attached. Bidder Bid Amount Sabell's Civil and Landscape LLC $248,600.20 Hallmark, INC $251,498.80 Lobos Structures, LLC. $357,124.00 ABCO Contracting, INC $378,397.50 Engineer's Estimate $209,083.70 Amount Over Engineer's Estimate $39,516.50 Sabell's Civil and Landscape LLC's total bid was approximately 19% more than the Engineer's Estimate amount. Sufficient funding is available in the Open Space Fund projects listed in the attached Contract Approval Summary to account for this total cost. Approval of an additional 10% contingency to Sabell's Civil and Landscape LLC's total bid is also recommended to account for unknowns that might be encountered on the project. This 10% will only be utilized, if necessary, to account for items not already in the plans. Sabell's Civil and Landscape LLC's Bid Amount $248,600.20 10% Contingency $24,860.02 Total Authorized Amount $273,460.22 The funding sources are the Parks Landscape Improvements, Concrete Trail Replacement, and Park Renovation project funds within the Open Space Fund. Page 354 of 436 ALTERNATIVES: An alternative would be to modify the amount of work being completed. However, this may put the future tennis court installation behind schedule. CONCLUSION: The bidding process resulted in a low bidder, Sabell's Civil and Landscape LLC, which was $39,516.50 more than the Engineer's Estimate. However, as stated above, since another bid came in at nearly the same price as the low bidder, staff is confident that the low bid is a reasonable cost for this work. Based on previous work done for Arapahoe County and REI's Flagship store in downtown Denver, staff is satisfied that they will perform satisfactorily. Staff conducted reference checks and all came back favorable. Staff recommends awarding a contract to Sabell's Civil and Landscape LLC in the amount of $248,600.20 for the Romans Park Retaining Wall Project with an allowance for a 10% contingency, if needed. ATTACHMENTS: Contract Summary Form Sabell's Civil and Landscape, LLC Contract Bid Tabulation New Retaining Wall Plan and Elevation Page 355 of 436 Contract Approval Summary 10/11/2019 Page | 1 Contact Identification Information (to be completed by the City Clerk) ID number: Authorizing Resolution/Ordinance: Recording Information: City Contact Information Staff Contact Person: Devin Keener Phone: (303) 913-8696 Title: Capital Projects Engineer Email: dkeener@englewoodco.gov Vendor Contact Information Vendor Name: SaBell’s Civil and Landscape, LLC Vendor Contact: Laura Strauch Vendor Address: 12500 W. 58th Ave. Suite #250 Vendor Phone: (303) 505-3857 City: Arvada Vendor Email: lauras@sclcontractor.com State: CO Zip Code: 80002 Contract Type Contract Type:Construction Agreement Description of Contract Work/Services: Attachments: ☒Contract -- ☐Original ☒Copy ☐Addendum(s) ☒Exhibit(s) ☐Certificate of Insurance Summary of Terms: Start Date: April 2020 End Date: June 2020 Total Years of Term: n/a Total Amount of Contract for term (or estimated amount if based on item pricing): $248,600.20 If Amended: Original Amount $ Amendment Amount $ Total as Amended: $ Renewal options available: Payment terms (please describe terms or attach schedule if based on deliverables): The City will pay Vendor for the work in accordance with the following payment schedule. This schedule will include monthly payments. Monthly payments will be made upon work completed and the approval of the invoice . Attachments: ☐Copy of original Contract if this is an amendment The City of Englewood will conduct its Romans Park Retaining Wall project. This contract will have the contractor perform demolition, site preparation, and the construction of a new concrete retaining wall in Romans Park. Page 356 of 436 Contract Approval Summary 10/11/2019 Page | 2 ☒Copies of related Contracts/Conveyances/Documents Source of funds: Attachment (For Capital Items Only / Expense Line Item Detail is Located in Open Gov): ☐Prior Month-End Project Status and Fund Balance Report Process for Choosing Vendor: ☒Bid: ☐ Bid Evaluation Summary attached ☒ Bid Response of proposed awardee ☐RFP: ☐ RFP Evaluation Summary attached ☐ RFP Response of proposed awardee ☐Quotes: Copy of Quotes attached ☐Sole Source: Explain Need below ☐Other: Please describe The City issued an invitation to bid on February 25, 2020 and received four (4) bids in response on March 17th, 2020. The total from the lowest bidder, SaBell’s Civil and Landscape LLC, was $248,600.20 which was 19% more than City staff's estimate. Page 357 of 436 Pay Item #Description of Item Unit Quantity Cost Per Unit Total Cost of Item Cost Per Unit Total Variance%Cost Per Unit Total Variance%Cost Per Unit Total Variance%Cost Per Unit Total Variance% 01 Vehicle Tracking Control LS 1 $2,542.00 $2,542.00 $7,400.00 $7,400.00 191.11%$4,415.00 $4,415.00 73.68%$4,850.00 $4,850.00 90.79%$4,400.00 $4,400.00 73.09% 02 Concrete Washout Area LS 1 $2,225.00 $2,225.00 $2,600.00 $2,600.00 16.85%$1,500.00 $1,500.00 -32.58%$2,800.00 $2,800.00 25.84%$1,350.00 $1,350.00 -39.33% 03 Erosion and Sediment Control LS 1 $500.00 $500.00 $6,400.00 $6,400.00 1180.00%$12,000.00 $12,000.00 2300.00%$4,500.00 $4,500.00 800.00%$2,500.00 $2,500.00 400.00% 04 Demolition and Removal - Tennis Court Fence LF 195 $4.00 $780.00 $28.00 $5,460.00 600.00%$44.00 $8,580.00 1000.00%$36.00 $7,020.00 800.00%$15.00 $2,925.00 275.00% 05 Demolition and Removal - Timber Stair Case SQYD 4 $50.00 $200.00 $150.00 $600.00 200.00%$490.00 $1,960.00 880.00%$600.00 $2,400.00 1100.00%$160.00 $640.00 220.00% 06 Demolition and Removal - Rock Wall LF 11 $300.00 $3,300.00 $86.00 $946.00 -71.33%$150.00 $1,650.00 -50.00%$280.00 $3,080.00 -6.67%$150.00 $1,650.00 -50.00% 07 Demolition and Removal - Concrete Retaining Wall & Footing 6"LF 210 $50.00 $10,500.00 $55.00 $11,550.00 10.00%$65.00 $13,650.00 30.00%$150.00 $31,500.00 200.00%$18.00 $3,780.00 -64.00% 08 Demolition and Removal - Concrete 8"SQYD 59 $63.00 $3,717.00 $52.00 $3,068.00 -17.46%$60.00 $3,540.00 -4.76%$32.00 $1,888.00 -49.21%$62.00 $3,658.00 -1.59% 09 Demolition and Removal - Grouted Boulder Slope CY 40 $80.00 $3,200.00 $60.00 $2,400.00 -25.00%$605.00 $24,200.00 656.25%$300.00 $12,000.00 275.00%$92.00 $3,680.00 15.00% 10 Demolition and Removal - Timber Retaining Wall EACH 2 $100.00 $200.00 $450.00 $900.00 350.00%$1,785.00 $3,570.00 1685.00%$4,850.00 $9,700.00 4750.00%$300.00 $600.00 200.00% 11 Demolition and Removal - Remove Tennis Court Asphalt SQYD 273 $22.00 $6,006.00 $46.00 $12,558.00 109.09%$68.00 $18,564.00 209.09%$32.00 $8,736.00 45.45%$17.00 $4,641.00 -22.73% 12 Excavate Footing Foundation CY 135 $20.00 $2,702.00 $57.00 $7,700.70 185.00%$225.00 $30,397.50 1025.00%$100.00 $13,510.00 400.00%$48.00 $6,484.80 140.00% 13 Aggregate Base Course CY 300 $20.00 $6,000.00 $114.00 $34,200.00 470.00%$125.00 $37,500.00 525.00%$120.00 $36,000.00 500.00%$100.00 $30,000.00 400.00% 14 Construct Retaining Wall CY 83 $1,350.00 $112,050.00 $1,040.00 $86,320.00 -22.96%$1,575.00 $130,725.00 16.67%$1,350.00 $112,050.00 0.00%$1,100.00 $91,300.00 -18.52% 15 Wall Drain Pipe 4"LF 200 $30.00 $6,000.00 $34.00 $6,800.00 13.33%$36.00 $7,200.00 20.00%$36.00 $7,200.00 20.00%$45.00 $9,000.00 50.00% 16 Reinforced Concrete Paving with Valley 5"CY 26 $800.00 $20,800.00 $625.00 $16,250.00 -21.88%$755.00 $19,630.00 -5.63%$850.00 $22,100.00 6.25%$960.00 $24,960.00 20.00% 17 Install Safety Fence LF 193 $1.50 $289.50 $7.50 $1,447.50 400.00%$12.00 $2,316.00 700.00%$30.00 $5,790.00 1900.00%$10.00 $1,930.00 566.67% 18 Mobilization LS 1 $1.00 $18,072.20 $32,000.00 $32,000.00 77.07%$47,000.00 $47,000.00 160.07%$62,000.00 $62,000.00 243.07%$48,000.00 $48,000.00 165.60% 19 Minor Contract Revisions EACH 10000 $1.00 $10,000.00 $1.00 $10,000.00 0.00%$1.00 $10,000.00 0.00%$1.00 $10,000.00 0.00%$1.00 $10,000.00 0.00% $209,083.70 $248,600.20 $378,397.50 $357,124.00 $251,498.80 ROMANS PARK RETAINING WALL CONSTRUCTION COSTS Sabell's Civil and Landscape LLC. (Low Bid )Engineer's Estimate ABCO Contracting, INC.Lobos Structures, LLC.Hallmark, Inc.Page 358 of 436 Page 359 of 436 PACKY ROMANS PARK - NEW RETAINING WALL 1800 E. Floyd Avenue City of Englewood, COKnow what'sbelow.before you dig.CallRS1100% BID DRAWINGSNOT FOR CONSTRUCTIONPage 360 of 436 PACKY ROMANS PARK - NEW RETAINING WALL 1800 E. Floyd Avenue City of Englewood, COKnow what'sbelow.before you dig.CallRS2100% BID DRAWINGSNOT FOR CONSTRUCTIONPage 361 of 436 PACKY ROMANS PARK - NEW RETAINING WALL 1800 E. Floyd Avenue City of Englewood, COKnow what'sbelow.before you dig.CallRS3100% BID DRAWINGSNOT FOR CONSTRUCTIONPage 362 of 436 Page 363 of 436 Page 364 of 436 Page 365 of 436 D - i GENERAL CONDITIONS OF THE CONTRACT TABLE OF CONTENTS Article 1. DEFINITIONS AND INTERPRETATION ............................................................................... 1 1.1 Definitions .............................................................................................................................. 1 1.2 References .............................................................................................................................. 4 1.3 Intention of Terms ................................................................................................................. 4 1.4 Computation of Time ............................................................................................................. 4 1.5 Abbreviations ......................................................................................................................... 4 1.6 Interpretation ......................................................................................................................... 5 Article 2. PRELIMINARY MATTERS ................................................................................................. 6 2.1 Performance of the Work ...................................................................................................... 6 2.2 Notice to Proceed .................................................................................................................. 6 2.3 Authority of the City Manager ............................................................................................... 6 2.4 Plans and Specifications ......................................................................................................... 6 2.5 Special Work........................................................................................................................... 6 2.6 Pre-Construction Meeting ...................................................................................................... 6 2.7 Contractor’s Understanding of Work ..................................................................................... 7 2.8 Contractor’s Representation .................................................................................................. 7 2.9 Other Work ............................................................................................................................ 7 2.10 Notices ................................................................................................................................... 7 2.11 Contractor’s Signs .................................................................................................................. 7 2.12 Publicity and Advertising ........................................................................................................ 7 Article 3. PAYMENTS ..................................................................................................................... 7 3.1 Measurement of Work Performed ........................................................................................ 7 3.2 Payments to Contractor and Completion .............................................................................. 7 3.3 Appropriate of Funds ........................................................................................................... 12 3.4 Payment for Increased or Decreased Quantities ................................................................. 12 3.5 Payment for Omitted Items ................................................................................................. 12 3.6 Extra and Force Account Work ............................................................................................ 12 3.7 Partial Payments .................................................................................................................. 13 3.8 Taxes / Direct Purchase Option ............................................................................................ 13 3.9 Liens ..................................................................................................................................... 14 3.10 Deductions ........................................................................................................................... 15 Article 4. COMPLETION, TIME and DELAYS IN CONSTRUCTION .................................................... 15 4.1 Delays ................................................................................................................................... 15 4.2 Construction Schedule ......................................................................................................... 15 4.3 Subcontracting or Assigning of Contract .............................................................................. 16 4.4 Commencement of Work ..................................................................................................... 16 4.5 Limitation of Operations ...................................................................................................... 16 4.6 Progress Schedule ................................................................................................................ 16 4.7 Character of Workman and Equipment ............................................................................... 17 4.8 Suspension of Work ............................................................................................................. 17 4.9 Suspension of Work for City’s Convenience ........................................................................ 18 4.10 Suspension of Work Due to Order of City, County, State or Federal Court or Agency ........ 18 4.11 Suspension of Work Resulting from Contractor’s Failure to Perform ................................. 18 Page 366 of 436 D - ii 4.12 Contract Time ....................................................................................................................... 18 4.13 Liquidated Damages ............................................................................................................. 19 4.14 Adjustment for Suspended Work ......................................................................................... 20 4.15 Termination of Contract ....................................................................................................... 20 4.16 Termination for Cause .......................................................................................................... 20 4.17 Termination for Convenience of Owner .............................................................................. 21 4.18 Cooperation with Other Contractors ................................................................................... 23 4.19 Terminating of Contractor’s Responsibility ......................................................................... 24 Article 5. PROJECT AND CONSTRUCTION MANAGEMENT ............................................................. 24 5.1 Authority of Project Engineer or Project Manager .............................................................. 24 5.2 Communications .................................................................................................................. 24 5.3 Supervision ........................................................................................................................... 24 5.4 Contractor Performance ...................................................................................................... 25 5.5 Work Performed Under Adverse Weather Conditions ........................................................ 25 5.6 Use of Materials Found on the Work Site ............................................................................ 25 5.7 Final Cleaning Up .................................................................................................................. 25 5.8 Surveys ................................................................................................................................. 25 5.9 Lines and Grades .................................................................................................................. 26 5.10 Value Engineering ................................................................................................................ 26 5.11 Sanitary Regulations ............................................................................................................. 26 5.12 Staging and Storage ............................................................................................................. 26 5.13 Salvage ................................................................................................................................. 27 5.14 Materials and Equipment Furnished by the Contractor ...................................................... 27 5.15 Substitution of Materials and Equipment ............................................................................ 27 5.16 Cutting and Patching ............................................................................................................ 28 5.17 Samples and Testing ............................................................................................................. 28 5.18 Property Rights in Materials ................................................................................................ 29 Article 6. CHANGES IN THE WORK ............................................................................................... 29 6.1 Changes and Increased or Decreased Quantities of Work .................................................. 29 6.2 Adjustments to Contract Price ............................................................................................. 35 6.3 Omitted Items ...................................................................................................................... 37 6.4 Work Not Specified But Included ......................................................................................... 37 6.5 Extra Work – Force Account ................................................................................................. 37 6.6 Unauthorized Work .............................................................................................................. 37 Article 7. SUBCONTRCTORS, SUPPLIERS AND PERSONNEL ........................................................... 37 7.1 Subcontractor ....................................................................................................................... 37 7.2 Workforce ............................................................................................................................ 38 7.3 Illegal Aliens as Laborers ...................................................................................................... 38 7.4 Personnel & Civil Rights ....................................................................................................... 39 Article 8. INSPECTIONS; CORRECTION OF DEFECTS ...................................................................... 40 8.1 Defective Work and Materials ............................................................................................. 40 8.2 Substituted Performance ..................................................................................................... 40 8.3 Authority and Duties of Inspectors ...................................................................................... 41 8.4 Inspection ............................................................................................................................. 41 8.5 Removal of Defective and Unauthorized Work ................................................................... 42 8.6 Geotechnical and Other Design Professional Reports, Investigations & Tests .................... 42 Article 9. PROTECTION OF PERSONS, PROPERTY AND ENVIRONMENT ......................................... 43 9.1 Protection of Persons ........................................................................................................... 43 Page 367 of 436 D - iii 9.2 Protection of Property ......................................................................................................... 43 9.3 Protection of Historical Sites ................................................................................................ 44 9.4 Responsibility to Repair ....................................................................................................... 44 9.5 Traffic Control ...................................................................................................................... 44 9.6 Protection of Street Signs, Traffic Signs and Signals ............................................................ 45 9.7 Utilities ................................................................................................................................. 45 9.8 Coordination with Englewood Utilities ................................................................................ 46 9.9 Notification of Affected Utility and Property Owners ......................................................... 46 9.10 Pollution Control .................................................................................................................. 45 9.11 Public Convenience and Safety ............................................................................................ 47 9.12 Use of Explosives .................................................................................................................. 47 9.13 Restoration of Property ....................................................................................................... 47 Article 10. PERMITS AND LICENSES; COMPLIANCE WITH CURRENT LAWS ...................................... 48 10.1 Compliance with Laws, Licenses and Permits ...................................................................... 48 Article 11. BONDS ......................................................................................................................... 48 11.1 Bonds .................................................................................................................................... 48 Article 12. WARRANTY .................................................................................................................. 49 12.1 Scope of Warranty ............................................................................................................... 49 12.2 Owners Right to Correct ....................................................................................................... 49 12.3 Warranty Period ................................................................................................................... 50 12.4 Performance During Warranty Period ................................................................................. 50 Article 13. INSURANCE; RISK OF LOSS ............................................................................................ 50 13.1 General Requirements ......................................................................................................... 50 13.2 Required Policies and Limits ................................................................................................ 51 13.3 Terms of Insurance ............................................................................................................... 52 Article 14. INDEMNIFICATION ....................................................................................................... 53 14.1 Contractor to City ................................................................................................................. 53 14.2 Owner to Contractor ............................................................................................................ 53 14.3 No Personal Liability of the Project Engineer or Project Manager ...................................... 53 14.4 No Waiver of Legal Rights .................................................................................................... 53 Article 15. DEFAULTS, REMEDIES AND TERMINATION .................................................................... 54 15.1 Notice of Disputes and Objections ....................................................................................... 54 15.2 Negotiations of Disputes ...................................................................................................... 55 15.3 Decision ................................................................................................................................ 55 15.4 Waiver .................................................................................................................................. 55 15.5 Contractor’s Remedies ......................................................................................................... 55 15.6 Owner’s Remedies ............................................................................................................... 55 15.7 Owner’s Special Remedy for Delay ...................................................................................... 56 15.8 Attorney’s Fees .................................................................................................................... 56 Article 16. INDEPENDENT CONTRACTOR ........................................................................................ 56 Article 17. DISPOSAL; HAZARDOUS SUBSTANCES .......................................................................... 56 17.1 Removal and Disposal of Structures and Obstructions ........................................................ 56 17.2 Cleaning Up and Restorations .............................................................................................. 56 17.3 Removal of Condemned Materials and Work ...................................................................... 57 17.4 Pests & Vector Control ......................................................................................................... 57 Page 368 of 436 D - iv 17.5 Hazardous Substances ......................................................................................................... 57 17.6 Existing Facilities – Hazardous Substances May Exist .......................................................... 57 17.7 No Introduction of Hazardous Substances .......................................................................... 57 17.8 Suspected Hazardous Substances ........................................................................................ 57 17.9 Ordinary Course Materials ................................................................................................... 57 Article 18. ROYALTIES AND PATENTS ............................................................................................. 58 18.1 Patents and Copyrights ........................................................................................................ 58 Article 19. DRAWINGS, DETAIL AND INSTRUCTIONS ...................................................................... 58 19.1 Drawings and Specifications ................................................................................................ 58 19.2 Copies of Drawings and Specifications Furnished ................................................................ 59 19.3 Utilities ................................................................................................................................. 59 19.4 Requests for Clarification and Information .......................................................................... 59 19.5 Dimensions ........................................................................................................................... 59 19.6 Shop Drawings ...................................................................................................................... 59 19.7 Record Documents ............................................................................................................... 60 19.8 Operating Manuals and Parks Lists ...................................................................................... 61 19.9 Conformity With Plans and Allowable Deviations ............................................................... 61 19.10 Coordination of Specifications, Plans and Special Provisions .............................................. 61 19.11 Ownership to Work Product ................................................................................................ 61 Article 20. RIGHT-OF-WAY ............................................................................................................. 61 20.1 Acquisition of Right-of-Way ................................................................................................. 61 20.2 Access to Right-of-Way ........................................................................................................ 61 20.3 Rights-of-Way ....................................................................................................................... 61 Article 21. SUBMITTALS ................................................................................................................. 62 21.1 Schedule of Submittals ......................................................................................................... 62 21.2 Scope of Engineer’s Reviews ................................................................................................ 62 21.3 Review Process ..................................................................................................................... 62 Article 22. NOTICES ....................................................................................................................... 62 Article 23. OWNER’S GENERAL RESPONSIBILITIES .......................................................................... 62 23.1 Owner Performance ............................................................................................................. 62 23.2 Project Engineer or Project Manager ................................................................................... 63 23.3 Right to Bar Persons From the Work or Site ........................................................................ 63 23.4 Access to Work ..................................................................................................................... 63 23.5 Inspection ............................................................................................................................. 63 Article 24. CONCEALED CONDITIONS ............................................................................................. 63 24.1 Discovery of Concealed Physical Conditions ........................................................................ 63 24.2 Inspection and Drawing Update .......................................................................................... 63 24.3 Delays ................................................................................................................................... 63 24.4 Change Order ....................................................................................................................... 64 24.5 Costs ..................................................................................................................................... 64 Article 25. WAIVER ........................................................................................................................ 64 25.1 Waiver .................................................................................................................................. 64 25.2 No Waiver ............................................................................................................................ 64 Article 26. OTHER CONDITIONS ..................................................................................................... 64 Page 369 of 436 D - v 26.1 Binding Contract ................................................................................................................... 64 26.2 Legislative of Judicial Decisions ............................................................................................ 64 26.3 Superseding .......................................................................................................................... 64 26.4 Professional Standards ......................................................................................................... 64 26.5 Notification in Writing .......................................................................................................... 64 26.6 Headings for Reference Only ............................................................................................... 65 26.7 One Instrument .................................................................................................................... 65 26.8 Third Party Claims ................................................................................................................ 65 26.9 Calendar Days ....................................................................................................................... 65 26.10 Written Consent ................................................................................................................... 65 26.11 Reallocation of Resources .................................................................................................... 65 26.12 Disclosure of Confidential Information ................................................................................ 65 26.13 Audit ..................................................................................................................................... 65 26.14 Federal Aid Provisions .......................................................................................................... 65 26.15 Duties & Remedies ............................................................................................................... 66 26.16 Survival ................................................................................................................................. 66 26.17 Government Immunity ......................................................................................................... 66 26.18 Construction ......................................................................................................................... 66 26.19 No Implied Representations ................................................................................................ 66 26.20 Financial Obligations of the City .......................................................................................... 66 26.21 Assignment/Transference .................................................................................................... 66 26.22 Amendments ........................................................................................................................ 66 26.23 No Third-Party Beneficiaries ................................................................................................ 66 26.24 Independent Contract – No Partnership or Agency ............................................................. 66 26.25 Governing Law, Jurisdiction, Venue ..................................................................................... 66 26.26 Attorney’s Fees and Costs .................................................................................................... 66 Page 370 of 436 1 Article 1. DEFINITIONS AND INTERPRETATION 1.1 DEFINITIONS: Whenever the following terms or pronouns are used in the Specifications and Contract Documents, the intent and meaning shall be as follows Terms defined in the Agreement or other Contract Documents, and not defined within this Article, shall have the meaning given them in the Document where defined. 1) ADDENDA: Written changes to the Bid Documents issued before the opening of Bids that clarify, correct, or change the Contract or change the date set for the Opening of Bids. 2) AMENDMENT: A change to the original contract which sets forth additional work which is new, and is outside the scope of the original contract and/or proposal. Such Amendment may require additional funding and bonding, and will require approval in accordance with the Owner’s purchasing policy. 3) BID: The offer or proposal of the Bidder submitted on the prescribed forms setting forth the prices for the Work to be performed. 4) BIDDER: The individual or entity who submits a Bid directly to Owner. 5) BID SECURITY: The security, as designated in the “Instructions to Bidders” furnished with the Bid by the Bidder as a guarantee that the Bidder will enter into the Contract and Furnish Bond(s) as required if the work be awarded to such Bidder. 6) BONDS: Bid, performance, payment and material bonds, any warranty bond, or other instruments of security furnished by the Contractor and its Surety to the Owner according to the Contract. 7) CHANGE ORDER: A written order to the Contractor, signed by the Project Engineer, on behalf of Owner, ordering a change that has been found necessary in the Work from that originally shown in the Plans and Specifications but which is still within the general scope of the Contract. If the Work is of a nature involving an adjustment of unit prices, a Supplemental Agreement shall be executed. A change order set forth upon a change order form generated by Owner, and signed by both Owner and Contractor, authorizes modifications to the existing contract documents. 8) COMPLETION DATE: The date the Contract specifies the Work is to be completed. 9) CONSTRUCTION SCHEDULE: The schedule of Work approved by Owner in accordance with the Contract Documents. 10) CONTRACT OR CONTRACT DOCUMENTS: The written Agreement executed between the Owner and the successful Bidder (“Contractor”), covering the performance of the Work and the furnishing of labor and materials, which binds the Contractor to perform the Work and furnish the labor and materials and by which the Owner is obligated to provide compensation at a mutually established and accepted rate or price. The Contract shall include Contract Agreement, Request for Bid, Bidder’s response (“Bid”), Bid Bond, Performance Bond, Payment Bond, Material Bond, Notice of Award and Notice to Proceed, Final Acceptance and Warranty Initiation, Final Receipt, Notice of End of Basic Warranty Period, Special Provisions, General Provisions, Statements of Work, Technical Specifications, Plans, Specifications, Drawings and Addenda or Change Orders, and any and all Supplemental Agreements which may be subsequently entered into to complete the Work in an acceptable manner in accordance with the Plans and Specifications. 11) CONTRACT PRICE: The total monies payable to the Contractor under the terms and conditions of the Contract. 12) CONTRACT TIME: The number of days provided in the Contract for the completion of the Project from the date of the Notice to Proceed through and including the date of Final Acceptance. The Contract Documents may require completion on or before a certain specified date. 13) CONTRACTOR: The successful bidder, who may be an individual, partnership, firm, or corporation, who executes the Contract, acting directly or through lawful agents or employees, primarily liable for the acceptable performance of the Work for which contracted, and for the payment of all legal debts pertaining to the Work. 14) CRITICAL PATH: a sequence of project tasks that add up to the longest project duration. If any tasks on the critical path experience delays, the overall project schedule must be extended. 15) DATE OF CONTRACT (“Effective Date of Contract”): The execution date in the Agreement for a Construction Contract unless otherwise specified. 16) DAY: A calendar day of twenty-four hours, from midnight to midnight, unless otherwise specified herein. Page 371 of 436 2 17) DRAWINGS: The part of the Contract Documents prepared or approved by the Project Engineer which graphically shows the scope, extent, and character of the Work to be performed by Contractor, including plans, profiles, typical cross-sections, general cross-sections, elevations, schedules, and details which show locations, character, dimensions, and details of the Work. Shop drawings and other Contractor submittals are not Drawings as so defined. 18) E-VERIFY: (formerly known as the Basic Pilot/Employment Eligibility Verification Program) An internet based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees. 19) ENGINEER (“Project Engineer”): The Owner’s designated, authorized representative assigned to the Project. The Project Engineer may have day-to-day responsibility for managing the Contract, or may designate in writing a Project Manager to provide day-to-day responsibility for managing the Contract. 20) EQUIPMENT: All machinery, together with the necessary supplies for upkeep and maintenance, and all tools and apparatus necessary for the proper construction and acceptable completion of the Work. 21) EXTRA WORK: Work not provided for in the Contract as awarded but found to be essential to the satisfactory completion of the Contract, within its intended scope. 22) FIELD ORDER: A written order effecting minor change in the Work not involving an adjustment in the Contract Price or an extension of the Contract Time, issued by the Project Engineer to the Contractor during construction. 23) FINAL ACCEPTANCE: An acknowledgment made by the Owner that all Work, as defined in Paragraph 59 herein, has been completed. The Owner’s final acceptance of the Work completed according to the Contract requirements with all parts of the Work in good condition and in working order, including completion of all punch list items, cleanup work, and delivery of all required guarantees, warranties, licenses, releases, and other deliverables. 24) FINAL PAYMENT: The final and complete payment to the Contractor in accordance with the Contract Documents. 25) FORCE ACCOUNT: A method of payment, other than lump sum or unit price, for Work ordered by a Change Order. 26) INSPECTOR: An authorized designee of the Engineer or Project Manager, assigned to make all necessary inspection of the Work performed or being performed, or of the materials furnished or being furnished by the Contractor. 27) LABORATORY: The official testing laboratories of the Owner or such other laboratories as may be designated by the Project Engineer. 28) NOTICE OF AWARD: A written notice to the successful Bidder stating their Bid has been accepted and that, in accordance with the terms of the notice to Contractors and the Specifications, such Bidder is required to execute the Contract and furnish satisfactory Bonds. 29) NOTICE OF FINAL ACCEPTANCE: The written notice of the date, as certified by the Owner, of Final Acceptance. 30) NOTICE TO PROCEED: A written notice given by Owner to Contractor fixing the date upon which the Contract Times will commence to run and on which Contractor shall start to perform the Work under the Contract Documents. 31) NOTICE OF SUBSTANTIAL COMPLETION: The written notice of the date, as certified by the Owner, of Substantial Completion. 32) NOTICE OF TERMINATION: Written notice from the Owner to the Contractor to stop Work under the Contract on the date and to the extent specified in the Notice of Termination. 33) OWNER (“City”): The City of Englewood, Colorado. 34) PARTIES: The Owner and the Contractor. 35) PAYMENT BOND: The approved form of security furnished by the Contractor and the Contractor’s surety as a guarantee to pay in full all bills and accounts for materials and labor used in the construction of the Work, as provided by law. 36) PERFORMANCE BOND: The approved form of security furnished by the Contractor and the Contractor’s surety as a guarantee of good faith and ability on the part of the Contractor to Page 372 of 436 3 execute the Work in accordance with the terms of the Plans, Specifications, and Contract. In lieu of a separate Performance Bond, a combination Performance, Labor and Material Payment Bond may be supplied by the Contractor. 37) PERFORMANCE, LABOR AND MATERIAL PAYMENT BOND: Security furnished by the Contractor and his surety as a guarantee to pay in full all bills and accounts for materials and labor used in the Work and to execute the Work in accordance with the Contract. 38) PLANS: The official Plans, working drawings, or supplemental drawings or exact reproductions thereof, approved by the Project Engineer which show the locations, character, dimensions, and details of the Work to be done and which are to be considered part of the Contract, supplementary to these Specifications. 39) PROGRESS SCHEDULE: A construction schedule prepared by the Contractor in a bar- chart, critical path or other format acceptable to the Engineer which includes the start and completion dates of all salient features of the Work as specified in Paragraph 41 hereof. 40) PROJECT: The total construction of which the Work to be provided under the Contract Documents may be the whole or a part as indicated elsewhere in the Contract Documents, and may include construction by other contractors. 41) PROJECT MANAGER: A representative of Owner authorized in writing by the Project Engineer/Engineer, and reporting to the Project Engineer/Engineer, to oversee the Project through day-to-day responsibility for managing the Contract. 42) PROPOSAL: The written offer of the Proposer, when submitted on the approved Proposal form, to perform the contemplated Work and furnish the necessary materials in accordance with the provisions of the Plans and Specifications. 43) BID BOND: The security, as designated in the Request for Bids to guarantee the Bidder will accept the Work under the terms set forth within the Bid Documents and Bid Response if the Work is awarded to such Bidder. 44) BIDDER: Any individual, firm, or corporation, submitting a Proposal or Bid for the Work contemplated within the Bid Documents... 45) REASONABLY PREDICTABLE WEATHER DELAYS: Estimated Weather Day(s) where critical path activities cannot be performed in any month, within contract weather or temperature limitations, or due to weather related conditions. 46) SHOP DRAWINGS: All drawings, diagrams, illustrations, brochures, schedules and other data which are prepared by the Contractor, a subcontractor, manufacturer, supplier, or distributor, which illustrate how specific portions of the Work shall be fabricated or installed. 47) SPECIAL PROVISIONS: Specific clauses setting forth conditions or requirements particular to the Project as set forth in the Proposal, which are not stipulated in the General Provisions or Technical Specifications. 48) SPECIFICATIONS: A part of the Contract Documents consisting of written technical descriptions of materials, equipment, construction systems, standards, and workmanship. The directions, provisions, and requirements contained therein, and which may be supplemented by Special Provisions, pertaining to the method and manner of performing the Work, or to the quantities or the qualities of materials to be furnished under the Contract. 49) STRUCTURES: Bridges, culverts, sewers, catch basins, retaining walls, manholes, headwalls, buildings, valve vaults and other features which may be encountered or included in the Work and not otherwise classified herein. 50) SUBCONTRACTOR: Any person or entity having a subcontract with the Contractor (or any Subcontractor, of any tier, whether or not authorized by the Contractor) to furnish and perform work at the Work site, including the provision of labor, materials, equipment, supplies, tools, services, or any combination of these. This definition shall not limit the Contractor’s obligations, or alter any Subcontractor’s rights, under any law or contract. 51) SUBSTANTIAL COMPLETION: The date on which the Work has progressed to the point that the Owner can beneficially occupy or utilize the Work for the purpose for which it is intended, and the Work complies with all applicable codes and regulations, including, if required, issuance of a certificate of occupancy, or certificate of suitability for use from the appropriate governmental agencies, as determined by the Owner in its sole discretion 52) SUPERINTENDENT: The executive representative for the Contractor who is present on the Work at all times, authorized to receive and fulfill instructions from the Engineer or Project Manager Page 373 of 436 4 and capable of supervising the Work efficiently. 53) SUPPLEMENTAL AGREEMENT: A written Proposal and Agreement, including Amendments, executed by the Contractor and by the Owner, with increased bonding from the surety if such agreement results in an increase in the total contract amount, covering Work not included in the Plans and Proposal or as specified in Section 1.3 which is necessary to for the proper completion of the Project. A supplemental agreement includes addendums to the original agreement, amendments to the original agreement, or change orders if such change order modifies a cost or price agreed to within the original agreement. 54) SUPPLIER: Any person or organization who supplies materials or equipment for the Work, including that fabricated to a special design, but who does not perform labor at the site. This definition shall not limit the Contractor’s obligations, or alter any Supplier’s rights, under any law or contract. 55) SURETY: The corporate body or individuals who are bound by the Bid Bond, Performance Bond and the Payment Bond or the Performance, Labor and Material Payment Bond, with and for the Contractor and which engage to be responsible for the entire and satisfactory fulfillment of the Contract and for the payment of all debts incurred in fulfilling the Contract. 56) UNIT PRICE: An amount stated in the Proposal as a price per unit of measurement for materials or services as described in the Contract. Unit Prices are intended to cover all items of work to be done and materials to be furnished to fully complete the Work in accordance with the Contract Documents (including without limitation the cost of appurtenant items of work, labor, materials, fees, bond costs, supplies, utilities, royalties, tools, forms and equipment, and all other costs (including without limitation sales and use tax, insurance, licenses, permits, profit, and other overhead) not listed separately, not shown on the Plans and Specifications, or not specified but necessary to complete the Work in accordance with the Contract Documents). 57) WEATHER DAY: Any day on which Work is scheduled in the Construction Schedule but cannot be performed within contract weather or temperature limitations or due to weather related soil conditions, and where work on critical activities cannot be performed for more than fifty percent (50%) of the work day, including any day immediately following a Weather Day on which subsequent day Work was scheduled in the Construction Schedule but cannot be performed on scheduled critical path activities due to weather related site or soil conditions for more than fifty percent (50%) of the day (drying days). 58) WORK: The term "Work" shall be understood to mean the furnishing of all labor, materials, equipment, and other incidentals necessary or convenient to the successful completion of the Project and the carrying out of all the duties and obligations imposed by the Contract. 1.2 REFERENCES: Words describing materials or Work having a well-known technical or trade meaning in an industry, unless otherwise specifically defined, shall be construed in according to well-known meanings as recognized by engineers, architects, and the trades. All references to standard specifications, methods of testing materials, codes, practices, and requirements refer to the edition of each in effect on the date of the Request for Bids unless a specific edition or revision is referenced. 1.3 INTENTION OF TERMS: Any reference to a paragraph or subparagraph within a section shall include the general provision of the section or sections and paragraph pertinent thereto. 1.4 COMPUTATION OF TIME: Any period of time referred to in the Contract Documents will be computed as consecutive calendar days. 1.5 ABBREVIATIONS: When the following abbreviations appear in the documents, they are defined as follows: AASHTO American Association of State Highway and Transportation Officials ACI American Concrete Institute ACPA American Concrete Pipe Association AGC Associated General Contractors of America, Inc. AIA American Institute of Architects AIEE American Institute of Electrical Engineers AISC American Institute of Steel Construction ANSI American National Standards Institute APHA American Public Health Association APWA American Public Works Association ASA American Standards Association ASCE American Society of Civil Engineers ASME American Society of Mechanical Engineers ASTM American Society for Testing and Materials Page 374 of 436 5 AWS American Welding Society AWSC American Welding Society Code AWWA American Water Works Association CDOT Colorado Department of Transportation CPM Critical Path Method COE City of Englewood DHS U.S. Department of Homeland Security EPA U.S. Environmental Protection Agency EWD Englewood Water Department GESC Grading, Erosion and Sediment Control IEEE Institute of Electrical and Electronic Engineers MUTCD Manual on Uniform Traffic Control Devices NBS National Bureau of Standards NCPI National Clay Pipe Institute NEC National Electric Code NEMA National Electrical Manufacturer’s Association OSHA Occupational Safety & Health Administration RCRA Resource Conservation and Recovery Act SAME Society of American Military Engineers SPWRP South Platte Water Renewal Partners SAVE Systematic Alien Verification or Entitlement program WW-P Federal Specifications Prefix 1.6 INTERPRETATION 1.6.1 Whenever, in these Specifications, or upon the Plans, or within the Contract Documents the words "directed," "required," "permitted," "ordered," "designated," "prescribed," or words of like import, are used, it shall be understood that the direction, requirement, permission, order, designation, or prescription of the Engineer or Project Manager is intended; and similarly, the words "approved," "acceptable," "satisfactory," or words of like import shall mean approved by, or acceptable to or satisfactory to the Engineer or Project Manager, unless otherwise expressly stated, subject in each case to the final determination of the Owner. 1.6.2 “Including” shall, unless otherwise specifically stated, mean including, but not limited to. 1.6.3 Words such as “hereby,” “herein,” and “hereunder” and words of similar import shall be construed to refer to the Agreement in its entirety and the General Conditions of the Contract, subject to the provisions of the Agreement relating to resolution of differences between terms of different Contract Documents. 1.6.4 Where otherwise consistent with the context, the singular shall include the plural and the plural shall include the singular. 1.6.5 The titles of articles and sections used in the Agreement and these General Conditions of the Contract are primarily for the convenience of the reader but may be used as aids in interpreting any provision herein. If any of the provisions of the exhibits attached to the Agreement hereto or of any of the Contract Documents are inconsistent with the provisions of the Agreement, the provisions of the Agreement shall control. 1.6.6 Any references to “days” in any Contract Documents refer to calendar days. Any references in any Contract Documents or any communications between Owner and Contractor to “business days” refer to days when Owner’s administrative offices are open for the regular conduct of business. 1.6.7 When “furnish,” “install,” “perform,” or “provide” is not used in connection with services, materials, or equipment in a context clearly requiring an obligation of Contractor, “provide” is implied. 1.6.8 Unless stated otherwise in the Contract Documents, words or phrases which have a well-known technical or construction industry or trade meaning are used in the Contract Documents in accordance with such recognized meaning. Page 375 of 436 6 Article 2. PRELIMINARY MATTERS 2.1 DELIVERY OF BONDS AND EVIDENCE OF INSURANCE. When Contractor delivers the executed counterparts of the Contract to Owner, Contractor shall also deliver to Owner such bonds as Contractor may be required to furnish. Before any Work at the Site is started, Contractor and Owners shall each deliver to the other, with copies to each additional insured identified in the Article 13 below, certificates of insurance (and other evidence of insurance with either of them or any additional insured may reasonably request) which Contract and Owner respectively are required to purchase and maintain in accordance with Article 13 below. 2.2 NOTICE TO PROCEED: Owner will give the Contractor written Notice to Proceed with the Work after execution of the Contract by the Owner. The Contractor shall begin the Work by the date stated in the Notice to Proceed and diligently pursue the Work regularly and without interruption (unless otherwise directed in writing by the Engineer or Project Manager) with the work force necessary to complete the Work and achieve Substantial Completion within the Contract Time. The Contract Times will commence to run on the thirtieth day after the Effective Date of the Contract if no Notice to Proceed is provided. If any milestones are described in the Contract Documents or the approved Construction Schedule, the Work described by each milestone shall be accomplished on or before that milestone in accordance with the Contract Documents. 2.3 AUTHORITY OF THE PUBLIC WORKS DIRECTOR: The Project Engineer shall be the representative of the Owner in all matters concerning the Contract and the work to be performed thereunder, except the Public Works Director of the Owner shall have the authority to terminate the Contract as elsewhere herein provided. The Public Works Director shall make the final decision on all questions as to acceptable fulfillment of the Contract should a dispute between the Contractor and the Project Engineer occur. 2.4 PLANS AND SPECIFICATIONS: It is agreed by the parties hereto that the following list of instruments, drawings and documents which are attached or incorporated by reference constitute and shall be referred to either as the Contract Documents or the Contract and all of said instruments, drawings, and documents taken together as a whole constitute the Contract between the parties hereto and they are as fully a part of this agreement as if they were set out verbatim and in full:  Invitation to Bid and Supporting Documents  Contract (this instrument), including all Exhibits, Schedules, Attachments, and Specifications.  All Proposal Response Documents  Certificate of Insurance The Contractor shall perform all items of Work covered and stipulated in the Specifications, Proposal, Contract and Special Provisions, together with any authorized alterations, Extra Work and Supplemental Agreements, all in accordance with the Plans. The Contractor shall furnish, unless otherwise provided in the Specifications and/or Special Provisions, all materials, implements, machinery, equipment, tools, supplies, transportation and labor necessary to perform and complete the Work. The Contractor shall be responsible for taking all steps reasonably necessary to ascertain the nature and location of the Work, and the general and local conditions which can affect the Work or the cost of the work. Failure by the Contractor to do so will not relieve it from responsibility for successfully performing Work without additional expense to Owner. The Owner will not be responsible for any understanding or representations concerning conditions, unless such understanding or representations are expressly stated in the Contract. 2.5 SPECIAL WORK: Should any construction or conditions which are not thoroughly stipulated or set forth by the plans and specifications be anticipated on any proposed Project, Special Provisions for such Work may be prepared and attached hereto as Exhibit C, and shall be considered as part of the Specifications, the same as though contained fully therein. Should any Special Provision conflict with the Specifications, the Special Provision will govern. 2.6 PRE-CONSTRUCTION MEETING: Before any Work at the Site is started, a conference attended by the Project Engineer, Project Manager, Contractor, and others as appropriate, will be held to establish a working understanding among the parties as to the Work and to discuss the schedules for progress, milestones, and completion of Work, procedures for handling Shop Drawings, and other submittals, processing Applications for Payment, and maintaining required records. The Contractor may be asked to provide specific information as to labor, tools, supplies, equipment, materials and everything necessary for and required to do, perform and complete all the work described, drawn, set forth, shown and included in said Contract Documents. At this conference Owner and Contractor each shall designate, in writing, a specific individual to act as its representative with respect to the services and responsibilities under the Contract. Such individuals shall have the authority to transmit instructions, receive information, render decisions relative to the Contract, and otherwise act on behalf of each respective party. Page 376 of 436 7 2.7 CONTRACTOR’S UNDERSTANDING OF WORK The Contractor agrees that by careful examination it is satisfied as to the nature and location of the Work, 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 Work, the general and local conditions, and all other matters, which can in any way affect the Work under the Contract. No oral agreement with any officer, agent, or employee of the Owner either before or after the execution of the Contract shall affect or change any of the terms or obligations contained in the Contract. 2.8 CONTRACTOR’S REPRESENTATION: The Contractor represents and warrants that it has the knowledge, ability, experience, and expertise to perform the Work competently in accordance with the Contract Documents. The Contractor represents and warrants the capacity of the Contractor's construction plant, personnel, and its ability to complete the Work by the Completion Date. 2.9 OTHER WORK: The Owner reserves the right to award other contracts in connection with the Project or other activities. The Contractor must be prepared to accept the presence, on or adjacent to the construction site, of work forces of other contractors, subcontractors, tenants, government agencies and municipal, public service or utility personnel. The Contractor shall cooperate with and afford other contractors reasonable opportunity for the introduction and storage of their materials and the execution of their Work, and shall coordinate its Work with theirs. If it becomes impossible to proceed with the Work in a manner that permits all activities to progress at a reasonable pace, the Project Engineer, or Project Manager, will select the course of action that appears to best serve the Owner. 2.10 NOTICES: Except for routine communications, written notices required under this Contract and all other correspondence between the Parties will be deemed received when hand-delivered or three (3) days after being sent by certified mail, return receipt requested (unless the Parties consent to electronic delivery). The address in the Proposal will be the Contractor’s address for the delivery of notices, unless modified by the Contractor by written notice at least three (3) business days prior to the change. Notices to the Owner shall be delivered to the Project Engineer, except as provided in the Contract Documents. 2.11 CONTRACTOR’S SIGNS: No signs with Contractor’s name, logo, telephone number, address or, (etc.), shall be placed on any pole, road, structure or other surface, unless approved in writing, and in advance of such placement, by the City. 2.12 PUBLICITY AND ADVERTISING: Neither the Contractor nor its Subcontractors or Suppliers shall include any reference to the Contract nor to Work performed hereunder in any advertising or public relations materials without first obtaining the written approval of the Project Engineer. All information shall be factual, and shall in no way imply that the Owner endorses the Contractor or its services or product. The Owner shall have the right to photograph, videotape, film or in any other manner record the progress of the Work at any time and to use such materials for any purpose. Article 3. PAYMENTS 3.1 MEASUREMENT OF WORK PERFORMED: The determination of the amount of Work acceptably completed under the terms of the Contract, or as directed by the Project Engineer, or Project Manager, in writing, will be made by the Project Engineer, or Project Manager, based on measurements taken by him or his agents. These measurements will be taken according to the United States standard measure. All surface and linear measurements will be taken horizontally unless otherwise shown on Plans or specified. Structures shall be measured to the neat lines as shown on the Plans, or as ordered in writing by the Project Manager. Other acceptable methods could include noting a percentage completed or referencing the project schedule by milestone. 3.2 PAYMENTS TO CONTRACTOR AND COMPLETION 3.2.1 General - Unless expressly provided otherwise, the Unit Prices shown in the Contractor’s Proposal include the cost of all labor, materials, supplies, equipment, tools, forms, services, utilities, royalties, fees, taxes, profit, overhead, and any other thing or expense, whether temporary or permanent, necessary to complete the Project in accordance with the Contract Documents. Items not shown on the Contract Documents that are necessary to construct the Project will be considered a part of the Project whether specified or not and no separate payment will be made for these items. 3.2.2 Determination of Amounts and Quantities – The Project Engineer, or Project Manager, or his or her designee shall verify determinations of amounts and quantities of Work performed. The method of measurement of pay items subject to Unit Prices will be as specified in the Special Conditions. 3.2.3 Monthly Estimates & Progress Payments a) Before Work commences, Owner and Contractor shall designate a day of the month by which Page 377 of 436 8 Invoices for Payment shall be due. On or before such day of each month after the Construction Work has commenced (but not earlier than the first day of such month), Owner shall submit to Contractor a “Periodic Estimate for Partial Payment” based on the Schedule of Values, and such other materials and information as may be required by the Agreement. No “Periodic Estimate for Partial Payment” except the Application for Final Payment shall be made for an amount less than $1,000.00. b) The Contractor shall submit signed estimates for progress payments on a monthly basis based on “Periodic Estimate for Partial Payment” for all Work completed to date. Estimates shall be prepared by the Owner no later than ten (10) days after the end of the month for Work subject to the application. Estimates shall be produced in a format reflecting the line items for which payment is requested according to the Unit Price Form in the Proposal and any applicable Change Order, shall be dated as of the actual date of submittal (or revised submittal, as applicable), and shall reflect the Work completed and the date to which Work has been completed. The Contractor will provide support documentation for all estimates, as requested. c) Each Periodic Estimate for Partial Payment shall constitute a representation and warranty of Contractor (whether or not specifically stated) that Contractor is not in default hereunder, the amounts requested in the Periodic Estimate for Partial Payment are due hereunder, after payment of the amounts requested in the Periodic Estimate for Partial Payment, the amount remaining to be paid under the Contract is sufficient to pay for the balance of the Work, the Work performed to date is in accordance with that contemplated by the Milestone Schedule (or specifying the portions thereof that are not), Contractor has no claims hereunder and has no request for changes in the Milestone Schedule or the Contract Sum not provided for in the Periodic Estimate for Partial Payment. Each Periodic Estimate for Partial Payment shall further constitute the representation and warranty of Contractor (whether or not specifically stated) that the percentage of the Work represented to have been done in each category provided on the Schedule of Values has, in fact, been completed as of the last day of the period for which such Periodic Estimate for Partial Payment has been submitted. The period covered by an Periodic Estimate for Partial Payment shall end not earlier than ten (10) days before the due date for the Periodic Estimate for Partial Payment, unless Contractor and Owner agree otherwise in writing. d) Each Periodic Estimate for Partial Payment shall set forth the status of all Proposed Changes, Change Directives, and Change Orders. e) Contractor shall promptly submit such additional information and documents as Owner or Project Professionals may reasonably request in support of the Periodic Estimate for Partial Payment. f) The signature on each application is a representation by the Contractor to the Owner that the Work has progressed to the point indicated, that the Work covered by the application is in accordance with the Contract Documents, that the money received as a result of the application will be used to discharge the Contractor’s obligations under the Contract, and that the Contractor is entitled to payment in the amount requested. g) By signing a Periodic Estimate for Partial Payment, the Contractor warrants that: (i) the title to the Work covered by the estimate of Work completed will pass to the Owner by incorporation into the completed Work; (ii) the Work covered by previous estimates of Work completed 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 estimate of Work completed is subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller or otherwise imposed by the Contractor or any other person or entity. h) The Contractor shall provide notice and reason, to the subcontractor or supplier and the Owner, why the subcontractor or supplier is not being paid. The Contractor shall not include in its Periodic Estimate for Partial Payment 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. i) Applications may include the value of acceptable materials required in the construction which have been delivered on the site of the Work or to adjacent railway siding and for which acceptable provisions have been made for preservation and storage, providing the Contractor submits with its monthly estimate paid invoices in duplicate for the material for which payment is being requested. Material paid for by the Owner becomes the property of the Owner and, in the event of the default on the part of the Contractor, the Owner may use or cause to be used such materials in construction of the Work provided for in the Contract. Page 378 of 436 9 j) The authorized Owner representative(s) must approve the applications and estimates before progress payments will be made. The Owner will make payments within thirty (30) days after the receipt of a signed monthly estimate in proper form containing all required and requested information. Progress payments are payments on accounts and shall not be construed as acceptance by the Owner of any part of the Work. k) All progress payments, except for the Final Payment, shall be subject to correction on subsequent applications after the discovery of any error. Approval of an application for payment of Work completed or actual payment by the Owner shall not foreclose the right of the Owner to examine the books and records of the Contractor to determine the correctness and accuracy of any item. l) The Contractor shall make partial payments of the amount due and payable to each of its Subcontractors and Suppliers in the same manner as the Owner is required to pay the Contractor under this article. This provision shall not create any privity of contract between the Owner and any Subcontractor or Supplier, or make any Subcontractor or Supplier a third- party beneficiary of this Contract. 3.2.4 Retainage & Withheld Amounts a) The Owner will retain five percent (5%) of the total amount earned, including Change Orders, as indicated in each approved application until Final Payment. Securities are not acceptable to the Owner in lieu of retainage. b) If the Owner finds that satisfactory progress is being made in all phases of the Contract and work is more than 80% complete, it may, upon written request by the Contractor, authorize payment from the withheld percentage. Before such payment is made, the Owner shall determine that satisfactory and substantial reasons exist for the payment and shall require written approval from any Surety furnishing the Payment Bond or Performance Bond. c) The Owner may withhold, in addition to retained percentages from Contractor payments, such an amount or amounts from any progress payment or Final Payment as may be necessary to cover:  Claims for labor or materials furnished the Contractor or any Subcontractor or reasonable evidence indicating probable filing of such claims;  Failure of Contractor to carry out the Work in accordance with the Contract Documents  Failure of the Contractor to make proper payment to Subcontractors or Suppliers;  A reasonable doubt that the Contract can be completed for the balance then unpaid;  Evidence of damage to another contractor, utility, or private property;  Claims filed in connection with the Work or reasonable evidence indicating probable filing of claims.  Uncorrected defective Work or guarantees that have not been met;  Failure of the Contractor to submit cost breakdowns, schedules, reports and other information required under the Contract;  Persistent failure to carry out the Work according to the Contract;  Failure to keep a superintendent on the Site during Construction Work.  Reasonable evidence that the Work will not be completed within the Contract Time and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay;  Any tax delinquency, unpaid fee, or other unpaid financial obligation of the Contractor owed to the Owner;  Any request that the Owner pay additional compensation to another contractor as a result of delays in the performance of that contractor’s work caused by the Contractor’s acts or omissions; and  Any other amounts that the Owner is authorized to withhold under the Contract Documents. If the reason for withholding is removed, the Owner will make payment of the withheld sums with the next regular progress payment unless another basis for withholding exists d) Execution of the Contract by the Contractor shall constitute a waiver by the Contractor to claim any right of payment of interest upon any funds retained or withheld by the Owner pursuant to these General Conditions or C.R.S. § 38-26-107. 3.2.5 Substantial Completion a) When the Contractor considers the entire work ready for its intended use, the Contractor shall Page 379 of 436 10 notify the Project Engineer, or Project Manager, in writing that the entire Work is substantially complete, except for minor items specifically listed by Contractor as incomplete (the Contractor’s punch list), and request that the Project Engineer, or Project Manager, issue a Notice of Substantial Completion. b) Within seven (7) days after the receipt of such notice, the Contractor, Engineer, or Project Manager and any other appropriate Owner representatives shall inspect the Work to determine the status of completion and the Contractor’s punch list.  If the Project Engineer, or Project Manager, does not consider the Work substantially complete, the inspection will cease and the Project Engineer, or Project Manager, will notify the Contractor in writing giving the reasons for denial of the Notice of Substantial Completion and the Contractor will proceed with the Work. All costs associated with such premature inspection, including any compensation for additional design services and the Owner’s additional costs, shall be deducted from any payment due to the Contractor.  If the Project Engineer, or Project Manager, considers the Work substantially complete, the Project Engineer, or Project Manager, will prepare and deliver to the contractor a Notice of Substantial Completion. The Project Engineer, or Project Manager, shall attach to the notice a punch list of items to be completed or corrected before Final Acceptance. Failure to include any items on the punch list shall not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. 3.2.6 Right of Early Occupancy or Use a) The Owner shall have the right to take early possession of and to use any completed or partially completed portions of the Work, even if Substantial Completion of the Work has not occurred and even if the Work has not been fully accepted. Such possession and early occupancy shall not constitute Substantial Completion of such portions of the Work nor affect the Owner’s right to assess liquidated damages. b) If the Owner elects to take possession of and to use any completed or partially completed portions of the Work prior to Substantial Completion, an inspection shall be made by the Contractor and the Project Engineer, or Project Manager. Based upon such inspection, the Project Engineer, or Project Manager, will attempt to list all incomplete Work items observed, and shall provide the Contractor with such list. However, the absence of an item from the list shall not relieve the Contractor of responsibility to perform all of the Work. Any and all areas so occupied will be subject to a final inspection prior to Final Acceptance and the issuance of Certificate of Occupancy, if required. c) At the time of such inspection, the Parties shall also negotiate the responsibilities of the Owner and the Contractor for security, maintenance, heat, utilities, property insurance premiums, and damage to the Work. These negotiations are subject to the final approval of the Owner. d) If the Contractor believes there will be an additional cost or delay associated with completion of the Work while the Owner occupies the Work in whole or in part under this section, the Contractor shall advise the Project Engineer, or Project Manager, by Contractor Change Request of all such costs and delays at or before the time of such inspection. If the Contractor fails or refuses to furnish such cost or delay information, or fails or refuses to comply with the Contractor Change Request procedure, the Contractor shall be deemed to have waived any and all rights to assert any claim for such additional cost or delay. 3.2.7 Final Acceptance a) When the Work specified in the Contract (including all punch list items) is completed and the final cleanup has been performed, the Contractor shall notify the Project Engineer, or Project Manager, that all Work under the Contract has been completed and the Project Engineer, or Project Manager, shall, within seven (7) days after such notice, make the final inspection. b) If the Project Engineer, or Project Manager, finds that the Project has been completed according to the Contract requirements and that all parts of the Work are in good condition and in working order, the Owner, upon the recommendation of the Project Engineer, or Project Manager, shall issue a written Notice of Final Acceptance. Any Notice of Final Acceptance issued orally or without proper Owner authorization is void. c) If the Project Engineer, or Project Manager, finds that the Project has not been completed according to the Contract requirements and that not all parts of the Work are in good condition and in working order, the Project Engineer, or Project Manager, shall compile a punch list of corrective or replacement Work to be completed by the Contractor and Contract obligations yet to be satisfied that the Contractor shall complete or fulfill to the Project Page 380 of 436 11 Engineer, or Project Manager’s satisfaction, at the Contractor’s expense, as a condition precedent to the issuance of a Notice of Final Acceptance. 3.2.8 Final Settlement & Final Payment a) After Final Acceptance, the Project Engineer, Contractor, or other person designated by the Owner, as appropriate, will prepare a final estimate of the total value of all Work performed under the Contract. This will include all extra Work properly authorized and performed. All prior estimates and payments shall be subject to correction in the final estimate and payment. In the absence of error or fraud, all estimates, when approved by the Owner, shall be conclusive evidence of the Work performed and materials furnished. b) The Owner shall not authorize final payment until all items on the punch list have been completed, a Notice of Final Acceptance is issued, and the Notice of Final Settlement has been published. If the Work is substantially completed, but Final Acceptance is prevented by the unavailability of materials, or other causes beyond the control of the Contractor, and if consistent with any applicable bond, the Owner, in its sole discretion, may release to the Contractor all amounts due except for a retainage of two (2) times the cost of completing the unfinished Work as estimated by the Owner. c) Before the Owner will advertise final settlement, the Contractor shall demonstrate to the operating personnel of the Owner the proper operation and maintenance of all equipment and systems, and deliver to the Project Engineer, or Project Manager:  All guarantees and warranties;  Bound sets of required operations and maintenance manuals and instructions as required by the Contract Documents;  Record Documents required by the Contract Documents;  Satisfactory evidence that all payroll, material bills, taxes, and other indebtedness connected with the Work have been paid or otherwise satisfied;  A complete and final, unconditional waiver or release of any and all lien and claim rights from each Subcontractor, materialman, Supplier, manufacturer, and dealer for all labor, equipment and material used or furnished by each on the Work;  Consent of the Surety to final payment;  All submittals required by the Contract Documents; and  Any other documents required to be furnished by the Contract Documents d) The Work shall be advertised (Notice of Contractor’s Settlement) in accordance with C.R.S. § 38-26-107. This statute governs the maintenance and enforcement of claims for payment against the Project by Subcontractors, Suppliers and certain others. Final payment and settlement shall be made only after the Contractor has completed the foregoing requirements, and the Owner is satisfied that no claims by Subcontractors or Suppliers have been filed or remain pending. e) If any unpaid claim for labor, materials, rental machinery, tools, supplies, or equipment is filed prior to the date set for final settlement, the Owner shall withhold from payments to the Contractor sufficient funds to ensure the payment of such claim, until the same shall have been paid or withdrawn. Such payment or withdrawal shall be evidenced by filing with the Project Engineer, or Project Manager, an unconditional receipt in full or an order for withdrawal signed by the claimant or its duly authorized agent or assignee. The Owner will withhold from payment any funds it may be required by law to withhold or that it may in the determination of the Owner be entitled to withhold, and final payment will not be made until, in the sole determination of the Owner, all conditions of the Contract and of law have been met. f) If there are outstanding claims against the Contractor or its Subcontractors or for any other reason the Contractor is not able to fulfill one or more of the requirements of this section, the Owner may, at its sole discretion, waive the requirement, provided the Surety agrees to the Owner making final settlement without in any way lessening or modifying the Surety’s liability under such Bonds. g) If any overpayment was made by the Owner at any time, the Contractor shall immediately return all overpaid amounts. h) At the time of settlement, there shall be deducted from the final estimate (i) all previous payments made to the Contractor under the Contract, (ii) all amounts chargeable to the Contractor, (iii) all liquidated damages due the Owner; (iv) all unpaid taxes due and payable to the Owner; and (v) all damages and all other costs, expenses and charges properly chargeable to the Contractor under the terms of the Contract. Page 381 of 436 12 i) Subject to delays allowed by Colorado law and these General Conditions, the Owner shall make Final Payment after Final Acceptance, including the release of all retainage and withheld amounts, except as authorized by the Contract Documents. Final Payment shall constitute complete payment for all Work, labor, materials, equipment, and miscellaneous items in the Project. j) At the time of delivery to the Contractor of the final payment, the Contractor shall execute and give to the Owner a final receipt for the same. k) The acceptance of final payment shall constitute a waiver of all Claims by the Contractor except those previously made in accordance with these General Conditions which have been separately identified by the Contractor as unsettled in the final payment application, and which the Owner agrees in writing may be set over for resolution after final payment. l) All provisions of these Contract Documents, including without limitation those establishing obligations and procedures, shall remain in full force and effect notwithstanding the making or acceptance of final payment. 3.3 APPROPRIATION OF FUNDS: At present, the amount set forth in the Contract has been appropriated for the project. Notwithstanding anything contained in this Agreement to the contrary, the parties understand and acknowledge that each party is subject to Article X, § 20 of the Colorado Constitution (“TABOR”). The parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, notwithstanding anything in the Contract to the contrary, all payment obligations of the Owner are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the Owner’s current fiscal period ending upon the next succeeding December 31. Financial obligations of the Owner payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of the Owner and applicable law. Upon the failure to appropriate such funds, the Contract shall be deemed terminated. The Owner shall immediately notify the Contractor or its assignee of such occurrence in the event of such termination. 3.4 PAYMENT FOR INCREASED OR DECREASED QUANTITIES: When alterations in the Plans or quantities of Work not requiring Supplemental Agreements, as provided for above, are ordered and performed, the Contractor shall accept payment in full at the Contract unit price for the actual quantities of Work done. No allowance will be made for lost profits. Increased or decreased Work involving Supplemental Agreements will be paid for as stipulated in such agreements. 3.5 PAYMENT FOR OMITTED ITEMS: For any item omitted from the work under the provisions of Section 1.5, the Owner will pay the Contractor a fair and equitable amount for costs incurred directly related to such item prior to the date of the Owner's order to omit the item. No allowance will be made for lost profits in reimbursements to the Contractor for omitted items of Work. Acceptable materials ordered by the Contractor or delivered to the Work site prior to the date of cancellation, alteration, or suspension of the Work by order of the Project Engineer, or Project Manager, will be paid for at the actual cost to the Contractor and shall thereupon become the property of the Owner. The Contractor shall immediately submit certified statements covering all money expended in preparation for any omitted item, and he shall be reimbursed for any money expended in preparation for Work on any omitted item when such preparation has no value to the remaining items of the Contract, or for a proportionate amount based on the total Contract price over which such preparation would ordinarily be distributed when other items are included in such preparation. 3.6 EXTRA AND FORCE ACCOUNT WORK: Extra Work, for which no price is provided in the Proposal, shall be covered by a Supplemental Agreement which could be an addendum (additional work requested), amendment (change the terms of the agreement, or change order (change the specifications of original work) to be signed by both parties before such Work is commenced. Extra Work will be paid for either at a lump sum, or unit prices agreed upon, or on a Force Account basis. For all labor, teams, and foremen in direct charge of the specific operations accomplished on a Force Account basis, the Contractor shall receive the current local rate of wage, to be agreed upon before starting the Work, to which shall be added fifteen (15) percent of the sum thereof to cover cost of supervision, the rental of small tools and ordinary equipment, additional Bond, Unemployment Insurance, all overhead and any other costs not specifically stated. In addition, the Contractor shall be paid a sum equal to the Worker's Compensation insurance premium, the actual costs of Social Security taxes computed on the base rate for the class of Work involved for the actual amount of the payroll, and the public liability and property damage insurance premium; provided, however, that nothing in this Section will change the legal status of the relationship between the Parties to this Agreement. For all materials furnished and used by the Contractor on a Force Account basis, he shall receive the actual cost of such materials, including transportation charges as shown by original receipted bills, to which shall be added fifteen (15) percent of said actual cost. Page 382 of 436 13 For machine power tools or equipment, including fuel and lubricant, used on Force Account Work, payment for the same will be made on a rental basis at the rate agreed upon between the Contractor and the Project Engineer, or Project Manager, to which no rate or percentage shall be added. The compensation as herein provided shall be received by the Contractor as payment for Extra Work done on a Force Account basis. The Contractor shall make no claim for Force Account Work, unless performed on written order and in accordance therewith. The Contractor's representative and the Inspector shall compare records of Extra Work done on a Force Account basis at the end of each day. Copies of these records shall be made upon suitable forms provided for this purpose, and signed by both the Inspector and the Contractor's representative, one copy being forwarded to the Project Engineer, or Project Manager, and one copy to the Contractor. All claims for Extra Work done on a Force Account basis shall be submitted each month to the Project Engineer, or Project Manager, by the Contractor upon certified statements, or upon forms furnished by the Owner. Work performed prior to a written order by the Project Engineer, or Project Manager, will not be paid for. 3.7 PARTIAL PAYMENTS: The Project Engineer, or Project Manager, will make an estimate once each month, as the Work progresses, of the value of the Work performed and materials completed and in-place or delivered to the site in accordance with the Contract. On request of the Project Engineer, or Project Manager, the Contractor shall furnish a detailed estimate of the total Contract price showing the amount included therein for each category of Work, to provide a basis for determining the amount of progress payments. The market value of materials and equipment delivered to the construction site but not yet incorporated in the Work may, at the discretion of the Owner, be included with a progress payment. However, payment by the Owner for such materials and equipment shall not relieve the Contractor of the responsibility for the care of such materials and equipment because the Owner shall not be deemed to have assumed ownership of the materials or equipment until these are incorporated into the completed and accepted Work. Such increases to progress payments, if authorized, are intended only to reduce the cost of doing business with the Owner. The Owner, when awarding a contract exceeding one hundred fifty thousand dollars ($150,000) for the construction, alteration, or repair of any highway, public building, public work, or public improvement, structure, or system, including real property as defined in section 24-30-1301 (15), shall authorize partial payments of the amount due under such contract at the end of each calendar month, or as soon thereafter as practicable, to the contractor, if the contractor is satisfactorily performing the contract. The Owner shall pay at least ninety-five percent of the calculated value of completed work. The withheld percentage of the contract price of any contracted work, improvement, or construction may be retained until the contract is completed satisfactorily and finally accepted by the Owner. Where the Contract price does not exceed such amount, from the total of the estimate so ascertained will be deducted an amount equivalent to five (5) percent of the whole, to be retained by the Owner until acceptance of the entire Contract, and the balance of the sum equivalent to ninety (90) percent of the whole shall be certified by the Project Engineer, or Project Manager, for payment. In addition, Owner shall retain from all progress payments an amount equal to all statutory claims filed against Contractor. No partial payments except final payment will be made for a sum less than $l,000.00. The estimates will be approximate only, and all partial or monthly estimates and payments shall be subject to correction in the estimate and payment rendered following discovery of an error in any previous estimates or payments. Should any defective Work or material be discovered, or should a reasonable doubt arise as to the integrity of any part of the Work completed previous to the final acceptance and payment, there will be deducted from the first payment rendered after the discovery of such Work an amount equal in value to the defective or questioned Work, and this Work will not be included in a subsequent estimate or payment until the defects have been remedied or the causes for doubt removed. 3.8 TAXES / DIRECT PURCHASE OPTION 3.8.1 Sales and Use Tax - Contractor shall only include sales and use tax levied by the City of Englewood and Arapahoe County on materials in its Schedules of Values, and Subcontractors and Suppliers shall only include such amounts in their Bids. The Owner will furnish to Contractor, on request by the Contractor, the necessary exemption certificates to aid the Contractor in the recovery or avoidance of any such taxes paid or otherwise due to be paid by Contractor for materials and equipment built into the Project, or to support the Contractor's failure to pay such taxes, as the case may be. 3.8.2 Tax Exemption - In accordance with Colorado Revised Statutes Sections 39-26-114 and 39-26-203, and the related regulation of the Department of Revenue, State of Colorado, the Contractor shall apply to the Department of Revenue, and secure prior to commencing the Project an exemption certificate, which when issued by the Department of Revenue will enable the Contractor to purchase for the Project all materials free of State Sales and Use Taxes and Regional Transportation District (RTD) Tax, provided that any building permit fee shall be included in any Proposal with respect to the Project. Further, if awarded the Project, no Englewood sales and/or use tax shall be included in any billing with respect to the Project. This provision shall apply to all contractors, subcontractors and material suppliers. When Englewood sales tax is paid to licensed Englewood vendors for materials, which become part of the Project by a Contractor, the City of Englewood will refund that tax to the Contractor upon receipt of an application from the Contractor at the conclusion of the Project. Accompanying the application must be the material receipt(s) displaying a description of the items(s) purchased, date of purchase, amount of purchase, tax paid and any Page 383 of 436 14 other documentation and information which may be required by the Owner to substantiate the payment and help validate a refund. 3.8.3 Direct Purchase Option - At Owner’s option, Contractor and Owner shall cooperate with one another so that Owner may purchase or contract directly for such items or Contractor and Owner shall make other appropriate arrangements as necessary to avoid incurring taxes, fees, and other costs. In such circumstances, Contractor shall act as agent for Owner in effecting such purchasing and contracting, Contractor shall have all the responsibilities as to such portions of the Work as Contractor otherwise has with respect to the Work. Contractor shall be responsible to expedite, arrange for and receive delivery of all such purchases, regardless of whether made by Contractor or Owner, and shall promptly examine deliveries to ascertain whether or not they comply with the requirements of the Contract Documents. Contractor shall promptly notify the Owner and Architect of any delay in the delivery of such purchases, any failure to receive such purchases as needed and any failure of such purchases to comply with the Contract Documents 3.8.4 Direct Supplier Payment - To the extent that Owner makes any payments directly to Suppliers, such payments shall be credited against the payments due from Owner to Contractor hereunder and shown, as incurred, on all Applications for Payment. Owner shall promptly notify Contractor and Architect, on serially numbered forms, of any amount paid directly for materials, any discounts obtained by Owner, and the amount of the credit due to Owner. 3.8.5 Tax Payment - The Contractor shall pay all sales and use taxes required to be paid, shall maintain such records in respect to his Work, which shall be separate and distinct from all other records maintained by the Contractor and shall be available for inspection by the Owner at any and all reasonable times, and shall furnish the Owner with such data, as may be necessary to enable the Owner to obtain any refunds of such taxes which may be available to the Owner under the laws, ordinances, rules or regulations applicable to such taxes. The Contractor shall require each of his Subcontractors to pay all sales and use taxes required to be paid and to maintain such records and furnish the Contractor with such data as may be necessary to enable the Owner to obtain a refund of the taxes paid by such subcontractors. The Contractors or Subcontractors who purchase materials, which become part of the Project, from governmental entities, which do not honor the exemption and thereby pay sales tax will not be reimbursed for that tax payment by the City of Englewood. The Contractor shall bear the risk of any added or increased taxes occurring during the performance of the Work. A change in taxes shall under no circumstances entitle the Contractor to an adjustment under the Contract. 3.8.6 Discounts - All discounts for prompt payment obtained by Contractor shall accrue to Owner to the extent they apply to Costs of Work payable by Owner (whether paid directly or reimbursed to Contractor). To the extent that such discounts apply to costs paid by Contractor without reimbursement, such discounts shall accrue to Contractor. All trade discounts, rebates and refunds, and all returns from sale of surplus or salvage materials and equipment, shall accrue to the benefit of Owner, and the Contractor’s agreements with others shall provide for such credits to be applied either through credits from Subcontractors and Suppliers passed through to Owner by Contractor or by payment directly to Owner. 3.8.7 Adjustments - The Contract Sum may be adjusted by Agreed Change. Contractor is obligated to pay out of its own funds any overruns of the Contract Sum not approved by Agreed Change as provided in Article 6. 3.9 LIENS 3.9.1 Title - Nothing in this contract shall be construed as vesting in Contractor any right of property in any equipment, materials, supplies, and other items provided under this contract after they have been installed in, incorporated into, attached to, or affixed to, the work or the work site. All such equipment, materials, supplies, and other items shall, upon being so installed, incorporated, attached or affixed, become the property of Owner, but such title shall not release Contractor from its duty to insure and protect the Work in accordance with the requirements of this contract. 3.9.2 Waivers of Lien - Contractor shall, from time to time at Owner's request and in any event prior to final payment, furnish to Owner such receipts, releases, affidavits, certificates, and other evidence as may be necessary to establish, to the reasonable satisfaction of Owner, that no lien against the work or the public funds held by Owner exists in favor of any person whatsoever for or by reason of any equipment, material, supplies, or other item furnished, labor performed, or other thing done in connection with the work or this contract ("Lien") and that no right to file any Lien exists in favor of any person whatsoever. 3.9.3 Removal of Liens - If at any time any notice of any Lien is filed, then Contractor shall, promptly and without charge, discharge, remove, or otherwise dispose of such Lien. Until such discharge, removal, or Page 384 of 436 15 disposition, Owner shall have the right to retain from any money payable hereunder an amount that Owner, in its sole judgment, deems necessary to satisfy such Lien and to pay the costs and expenses, including attorneys' fees and administrative expenses, of any actions brought in connection therewith or by reason thereof. 3.9.4 Protection of Owner Only - This section shall not operate to relieve Contractor's surety or sureties from any of their obligations under the Bonds, nor shall it be deemed to vest any right, interest, or entitlement in any subcontractor or supplier. Owner's retention of funds pursuant to this section shall be deemed solely for the protection of its own interests pending removal of such Liens by Contractor, and Owner shall have no obligation to apply such funds to such removal but may, nevertheless, do so where Owner's interests would thereby be served. 3.10 DEDUCTIONS 3.10.1 Owner's Right to Withhold - Notwithstanding any other provision of this contract and without prejudice to any of Owner's other rights or remedies, Owner shall have the right at any time or times, whether before or after approval of any Pay Request, to deduct and withhold from any Progress or final payment that may be or become due under this contract such amount as may reasonably appear necessary to compensate Owner for any actual or prospective loss due to: a) Work that is defective, damaged, flawed, unsuitable, nonconforming, or incomplete; b) Damage for which Contractor is liable under this contract; c) State or local sales, use, or excise taxes from which Owner is exempt; d) Liens or claims of Lien regardless of merit; e) Claims of subcontractors, suppliers, or other persons regardless of merit; f) Delay in the progress or completion of the work; g) Inability of Contractor to complete the work; h) Failure of Contractor to properly complete or document any Pay Request; i) Any other failure of Contractor to perform any of its obligations under this contract; or j) The cost to Owner, including attorneys' fees and administrative costs, of correcting any of the aforesaid matters or exercising any one or more of Owner's remedies set forth in Section 3.2 of this contract. 3.10.2 Use of Withheld Funds - Owner shall be entitled to retain any and all amounts withheld pursuant to subsection 7.12 above until Contractor shall have either performed the obligations in question or furnished security for such performance satisfactory to Owner. Owner shall be entitled to apply any money withheld or any other money due Contractor under this contract to reimburse itself for any and all costs, expenses, losses, damages, liabilities, suits, judgments, awards, attorneys' fees and administrative expenses incurred, suffered, or sustained by Owner and chargeable to Contractor under this contract. Article 4. COMPLETION, TIME AND DELAYS IN CONSTRUCTION 4.1 DELAYS: No payment, compensation, damages, or adjustment of any kind, other than extension of the contract time if received in writing by Owner shall be made to, or claimed by, Contractor because of hindrances or delays from any cause in the commencement, prosecution, or completion of the work, whether caused by Owner or any other party and whether avoidable or unavoidable other than as set forth in a change order described fully above. 4.2 CONSTRUCTION SCHEDULE: Within the time specified in the Request for Bids, the Contractor shall submit to the Owner a proposed Construction Schedule using Primavera, MS Project or other comparable Critical Path Method (CPM) scheduling software. The Construction Schedule must include all Work activities to be performed under the Contract including any work to be performed by Subcontractors and must account for all Reasonably Predictable Weather Delays. All activities should be logically tied with a critical path clearly identified. The schedule must have sufficient detail to adequately plan and manage the Work. Contractual and key milestones are to be identified. The Construction Schedule must include a brief narrative including: a) A description of the schedule critical path (series of tasks that define the overall project schedule); b) Identification of non-work days such as weekends or holidays; c) A table showing calculated Reasonably Predictable Weather Days (including drying days for each month); and d) List of assumptions used while developing the Construction Schedule. Page 385 of 436 16 It will be presumed that the Contractor, at the time of Bid, took into account the number of days which might be unavailable for Work as a result of Reasonably Predictable Weather Delays during the Contract Time. The Contractor shall calculate the average number of lost weather days for each month of the Construction Schedule as defined in section 4.12.4 below. On a monthly basis with each pay application and as requested by the Project Engineer, or Project Manager, the Contractor shall update the Construction Schedule and provide a summary report of progress on the various parts of the Work, including the status, rate of progress, estimated completion date, and cause of delay, if any. This report shall not constitute a request or approval for any change in the Contract Time. Work shall normally not be done on Saturdays, Sundays, Owner observed holidays, or outside of the daytime working hours (7:00 a.m. to 7:00 p.m.), except for such work as may be necessary for proper care, maintenance, and protection of Work already done, or in cases when the Work would be endangered or when hazard to life or property would result. No work shall be done on Sundays, holidays, or at night outside of usual daytime working hours, except in emergencies beyond the Contractor’s control, whereby the work would be endangered, or hazards to life or property would result. If the Contractor believes it may be necessary to work on Saturdays, Sundays, holidays, or at night, the Contractor shall make prior arrangements with the Project Engineer, or Project Manager, and receive written approval at least forty-eight (48) hours before such work period so that proper inspection and engineering services can be provided. Such approval may be revoked by the Project Engineer, or Project Manager, if the Contractor fails to maintain adequate equipment and lighting at night for the proper prosecution, control and inspection of the Work. If Work is done outside of approved working hours, and the Project Engineer, or Project Manager, has not assigned Inspectors to the Work, the Work performed during those periods of time may be declared defective solely on the grounds that it was not properly inspected. 4.3 SUBCONTRACTING OR ASSIGNING OF CONTRACT: No Contractual relationship will be recognized under the Contract other than the Contractual relationship between the Owner and Contractor. Contractor shall not, at any time, assign any interest in this Agreement or the other Contract Documents to any person or entity without the prior written consent of the Owner specifically including, but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law). Any attempted assignment which is not in compliance with the terms hereof shall be null and void. Unless specifically stated to the contrary in any written consent to an Assignment, no Assignment will release or discharge the Assignor from any duty or responsibility under the Contract Documents. 4.4 COMMENCEMENT OF WORK: The Contractor agrees to undertake the performance of the work under this Contract within ten (10) days from being notified to commence work by the Director of Public Works, and agrees to fully complete said work within the schedule designated in the contract plus such extension or extensions of time as may be granted by the Director of Public Works in accordance with the provisions of the Contract Documents and Specifications. The Contractor shall notify the Project Engineer, or Project Manager, at least 48 hours in advance of the time he intends to begin Work. The Contractor shall conduct Work in such a manner and with sufficient materials, equipment, and labor as is considered necessary to insure its completion within the time limit set forth in the Contract. Should the prosecution of Work for any reason be discontinued by the Contractor, with the consent of the Project Engineer, or Project Manager, he shall notify the Project Engineer, or Project Manager, at least 48 hours in advance of resuming operations. 4.5 LIMITATION OF OPERATIONS: Each item of Work shall be performed to completion without delay and in no instance will the Contractor be permitted to transfer his force from uncompleted Work to new Work without the permission of the Project Engineer, or Project Manager. The Contractor shall not open up Work to the prejudice of Work already started. 4.6 PROGRESS SCHEDULE: The Contractor shall prepare and submit to the Project Engineer, or Project Manager, for approval five (5) calendar days prior to the Preconstruction Conference, a practicable schedule, showing the order in which the Contractor proposes to carry on the Work, the date on which he will start the several salient features (including procurement of materials and equipment) and the contemplated dates for completing the same. The schedule shall be in the form of a progress chart of suitable scale to indicate appropriately the percentage of Work scheduled for completion at any time. The Contractor shall enter on the chart the actual progress at such intervals as directed by the Engineer or Project Manager, and shall immediately deliver three copies thereof. If the Contractor fails to submit a progress schedule within the time herein prescribed, the Project Engineer, or Project Manager, may withhold approval of progress payment estimates until such time as the Contractor submits the required Page 386 of 436 17 progress schedule. The Contractor shall perform the Work in accordance with the latest approved progress Schedule. In the event that the progress of items along the critical path in the project schedule is delayed, the Contractor shall revise his planning to include additional forces, equipment, shifts or hours as necessary to meet the time or times of completion specified in this Contract. Additional costs resulting therefrom will be borne by the Contractor. The Contractor shall make such changes when his progress at any check period does not meet at least one of the following two tests: a. The percentage of dollar value of completed Work with respect to the total amount of the Contract is within ten percentage points of the percentage of the Contract time elapsed, or; b. The percentage of dollar value of completed Work is within ten percentage points of the dollar value which should have been performed according to the Contractors own network analysis previously approved by the Project Engineer, or Project Manager. Failure of the Contractor to comply with the requirements under this Section will be grounds for determination that the Contractor is not performing the Work with such diligence as will ensure completion within the time of completion specified in this Contract. Upon such determination, the Owner may terminate the Contractor's right to proceed with the Work, or any separate part thereof, in accordance with the provisions contained herein. The Owner may extend the time periods reflected by subparagraphs (a) and (b) above, if those subparagraphs do not reasonably reflect upon the Contractor’s prosecution of the Work. 4.7 CHARACTER OF WORKMEN AND EQUIPMENT: The Contractor shall employ such superintendents, foremen, and workmen as are careful and competent, and the Project Engineer, or Project Manager, may demand the dismissal of any person or persons employed by the Contractor in, about, or upon the Work who shall engage in acts of misconduct (as defined in the Federal Contractor Misconduct Database) or be incompetent or negligent in the proper performance of his or her duties, or neglects or refuses to comply with the directions given, and such person or persons shall not be employed again thereon without the written consent of the Project Engineer, or Project Manager. Should the Contractor continue to employ, or again employ such person or persons, the Project Engineer, or Project Manager, may withhold all payments which are or may become due, or the Project Engineer, or Project Manager, may suspend the Work until such orders are complied with. In the employment of labor, preference shall be given, other conditions being equal, to residents of the area wherein the Work is being done, but no other preference or discrimination among citizens of the United States shall be made, except as may be required by special labor provisions. The Contractor shall furnish such equipment as is considered necessary for the prosecution of the Work in an acceptable manner and at a satisfactory rate of progress. All equipment, tools, and machinery used for handling materials and executing any part of the Work shall be maintained in a satisfactory working condition. Equipment used on any portion of the Work shall be such that no injury to the workers, roadways, adjacent property, or other objects will result from its use. The Contract may be terminated if the Contractor fails to provide adequate equipment for the Work. 4.8 SUSPENSION OF WORK: The Owner may suspend all or any part of the Work by written order signed by the Project Engineer, or Project Manager, without invalidating the Contract, for such period or periods as it may deem necessary due to: a) Any reason for the convenience of the Owner, with or without cause, including but not limited to the availability of funding for the Project; b) An order from a state or federal court or administrative agency; or c) The Contractor’s failure to perform any provision of the Contract Documents. Upon receipt from the Project Engineer, or Project Manager, of an order to suspend the Work, the Contractor shall, within three (3) days, submit a suspension plan to the Project Engineer, or Project Manager, for acceptance. The plan shall describe how the Contractor will store all materials in a manner so that the materials will not become an obstruction or become damaged in any way, what cost effective methods it will employ to prevent damage to or deterioration of the Work and otherwise protect the Work, how suitable drainage will be provided, what temporary structures will be necessary, and how the Contractor will prepare for resuming the Work for the least possible remobilization cost. After the plan is accepted, the Contractor shall implement it in accordance with instructions received from the Project Engineer, or Project Manager. Under no circumstance shall a suspension absolve the Contractor or the Contractor’s sureties of the duties and responsibilities guaranteed under the Bonds. The Contractor shall again proceed with the Work when it is ordered to do so in writing by the Project Engineer, or Project Manager. Upon the resumption of the Work for all suspensions not involving the Contractor’s failure to perform in accord with the Contract Documents, adjustment of Contract Time, if appropriate, will be made in accordance with these General Conditions. Adjustment of the Contract Price, if any, will be within the Owner’s sole discretion and shall not in any Page 387 of 436 18 event, exceed the cost of the extra work resulting from such suspension. Such cost, if any, shall be determined in accordance with these General Conditions. 4.9 SUSPENSION OF WORK FOR OWNER’S CONVENIENCE: Upon decision to suspend the Work or any part of the Work for the Owner’s convenience, the order of suspension will extend the Contract Time for the number of days of such suspension if all Work is suspended. If the suspension applies to only a part of the Work, a time extension will not be authorized until the partial suspension has run and its effect on the entire Contract can be evaluated. In all cases of suspension for the Owner’s convenience, the costs to the Contractor will be determined in accordance with these General Conditions. Upon order of such suspension, the Contractor shall immediately begin to perform in a manner designed to minimize the costs of protecting the Work and maintaining it in a condition which will permit its resumption for the least possible remobilization cost. 4.10 SUSPENSION OF WORK DUE TO ORDER OF CITY, COUNTY, STATE or FEDERAL COURT OR AGENCY: If the suspension of work is due to an order from a City, County, State or Federal court, the order of suspension will identify the court or agency order which caused the suspension and will extend the Contract by the amount of time specified by the court or agency order. If the order causes suspension for an indefinite period of time and as a result a time extension cannot be established, the order of suspension will also be for an indefinite period of time. If the order is issued because of acts or omissions of the Contractor, the Contractor shall not be entitled to a time extension or payment for any additional costs it incurs. 4.11 SUSPENSION OF WORK RESULTING FROM CONTRACTOR’S FAILURE TO PERFORM: If a suspension order results from the Contractor’s failure to satisfactorily perform any of the provisions of the Contract, including but not limited to faulty workmanship, safety concerns, improper or inadequate manpower, equipment, supplies or supervision, or failure to perform the Work in a timely manner, the order will identify the reason, or reasons, for the order. In this circumstance, no time extension will be authorized for the Contractor and any costs to the Contractor resulting from such suspension order will not be reimbursed by the Owner. A suspension order issued under these circumstances will remain in effect until the Contractor has removed or corrected the grounds for the suspension, if applicable, or the order requiring such suspension expires by its terms. 4.12 CONTRACT TIME: Work shall be fully completed in a satisfactory and acceptable manner by the Completion Date as modified by Change Orders that may extend the project schedule due to excusable delays. 4.12.1 Delays - Delay claims fall into three categories: non-excusable; excusable/non-compensable; and excusable/compensable. Any payment for compensable delays or the granting of time extensions for excusable delays requires a properly executed Change Order. The Contractor agrees that time extensions shall constitute full compensation for any excusable/non-compensable delay, and the Contractor shall make no claim for monetary damages relating to any non-excusable delay or any excusable/non- compensable delay. 4.12.2 Non-Excusable Delay - Non-excusable delay is caused by factors within the Contractor’s reasonable control or by the Contractor’s fault. No additional time or additional compensation is allowed for non- excusable delays. Typical non-excusable delays, without limitation, include: a) Late submittal of Shop Drawings; b) Late procurement of materials or equipment; c) Insufficient personnel; d) Unqualified personnel; e) Inadequate coordination of Subcontractors or other contractors; f) Subcontractor delays; g) Late response to Owner, Project Engineer, or Project Manager, or Inspector inquiries; h) Failure to comply with the requirements of the Contract Documents; i) Construction not conforming to contract requirements making repeated re-working necessary; j) Delays resulting from the Contractor’s failure to take reasonable actions to mitigate or prevent further delays relating to any excusable delay; k) Failure to continue performance during the determination of any Contractor Change Request or claim; and l) Weather delays exceeding the Reasonably Predictable Weather Days identified on the approved Construction Schedule, unless approved as unusually severe weather days. 4.12.3 Excusable Delay a. Excusable/Non-compensable delay is caused by factors beyond the Contractor’s reasonable control, but is not the result of the Owner’s actions or omissions. An excusable/non-compensable delay entitles the Contractor to an extension of time but no additional compensation for the cost of the delay. Page 388 of 436 19 Typical excusable/non-compensable delays, without limitation, include strikes, lockouts, natural fires not caused by Contractor’s acts or omissions, unusual delay in transportation, unavoidable casualties, legal or administrative proceedings affecting the Work or the Project, and other causes beyond the Contractor’s control. b. Excusable/Compensable delay is caused by the Owner’s failure to meet an obligation within its control stated or implied in the Contract, but shall not include any action, omission, or exercise of any right under the Contract. If the Project Engineer, or Project Manager, considers a delay as compensable, the Owner will grant a time extension or reimburse the Contractor for the increased total cost of performance caused by the delay, or both, as appropriate. Typical excusable/compensable delays, without limitation, include: 1) Late approval of Shop Drawings and samples; 2) Delays in answers to field inquiries made by the Contractor; 3) Interference with the Contractor during construction: 4) Owner-caused schedule changes; 5) Design changes; or 6) Interference by another contractor’s or the Owner’s personnel. 4.12.4 Weather Delay - In order for a Weather Delay to occur, the total lost weather days must exceed the total number of such days included in the contract time as specified in the Special Provisions for the project. The Weather Delay, if any, shall be the number of days of such excess; provided that no Weather Delay shall have occurred except to the extent that Work which needs to be performed during the period of time affected by adverse weather is actually delayed in a manner that delays the critical path to completion of the Work. As used herein, a “lost weather day” shall mean a day during which actual adverse weather prevents work on activities that need to be performed on that day in accordance with the Project Schedule for fifty percent (50%) or more of Contractor’s scheduled Work for such day. Contractor shall report to Owner no later than 10:30 a.m. Mountain Time on each day Contractor claims to be a lost weather day or (ii) if Work on the Project has commenced for such day, within one hour of Contractor’s decision to suspend Work because of such adverse weather. Such report shall state that Contractor considers that a lost weather day is occurring and shall describe the weather conditions experienced and how the weather conditions have affected the Scheduled Work for such day. Unless Contractor gives such timely notice as to any day when work is adversely affected by adverse weather, Contractor shall not be entitled to claim such day as a lost weather day. 4.12.5 Time Adjustments for Weather Delays - The Project Engineer, or Project Manager, in his or her discretion, may deem weather-related delays as excusable/non-compensable if the net number of lost weather days in any month exceeds the number of Reasonably Predictable Weather Days for that month shown on the approved Construction Schedule. The Contractor must submit a weather time impact analysis supporting any request for time extensions due to unusually severe weather. If Contractor is delayed in the performance or progress of the Work by fire, flood, epidemic, abnormal weather conditions, acts of God, acts or failures to act of utility owners not under the control of Owner, or other causes not the fault of and beyond the control of Owner and Contractor, then Contractor shall be entitled to an equitable adjustment in Contract Times, if such adjustment is essential to Contractor’s ability to complete the Work within the Contract Time. Such an adjustment shall be Contractor’s sole and exclusive remedy for the delays described in this Paragraph. 4.13 LIQUIDATED DAMAGES: The Owner may permit the Contractor to proceed if the Contractor fails to advance the Work sufficiently to obtain a Notice of Substantial Completion on or before the Completion Date, as modified by Change Orders providing for additional time due to excusable delays. In such case, the Contractor will pay the sum of liquidated damages stipulated in the Special Conditions for each day that the Work remains uncompleted. This sum shall not be a penalty but is liquidated damages. The Parties agree that time is of the essence in the performance of this Contract and that actual damages for delay are incapable of calculation. The Parties agree that, under all of the circumstances, the daily basis and the amount set forth as liquidated damages is reasonable and equitable. The Owner expends additional personnel effort in administrating the Contract or portions of it that are not completed on time, and such efforts and the costs thereof are impossible to accurately compute. In addition, some, if not all, citizens of the City of Englewood incur personal inconvenience and lose confidence in their government as a result of public projects or parts of them not being completed on time, and the impact and damages, certainly serious in monetary as well as other terms, are impossible to measure. Permitting the Contractor to continue and finish the Work, or any part of it, after the Completion Date shall not operate as a waiver on the part of the Owner of liquidated damages or any of its rights under the Contract. Page 389 of 436 20 The Owner may deduct liquidated damages or any portion thereof due under this article from Final Payment and may sue for and recover such damages from the Contractor and the Surety. The Owner and Contractor agree that as liquidated damages for delay, but not as a penalty, Contractor shall pay the Owner the amount specified in the table below for each day that expires after the time specified for substantial completion until the Work is complete, and for each day that expires after the time specified for final completion until the Work is finally complete. Original Contract Amount Amount of Liquidated Damages Per Day Less than $150,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $500.00 $150,000 and less than $500,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,000.00 $500,000 and less than $1,000,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,600.00 $1,000,000 and less than $2,000,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,300.00 $2,000,000 and less than $4,000,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $4,100.00 $4,000,000 and over. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $5,800.00 In addition to liquidated damages, inspections required after the Contractual "Time of Completion" shall be charged to the Contractor at the rate of $50.00 per hour. The Owner shall recover said inspection charges and liquidated damages by deducting the amount thereof out of any moneys which may be due or may become due to the Contractor, and/or by an action at law against the Contractor or his Surety. It is understood and agreed that aside from any other penalty or damage, all costs of the Project Engineer, or Project Manager, and inspection on behalf of the Owner may be charged to the Contractor and be deducted from any estimate or payment otherwise due and payable to him 4.14 ADJUSTMENT FOR SUSPENDED WORK: In the event the Contractor is ordered by the Owner, in writing, to suspend Work for some unforeseen cause not provided for in the Contract, and over which the Contractor has no control, the Contractor may be reimbursed for actual money expended on the job during the period of shutdown. No allowance will be made for lost profits. The period of shutdown shall be computed from the date set out in the written order for Work to cease until the date of the order for Work to resume. Claims for such compensation shall be filed with the Owner within 10 days after date of order to resume Work or such claims will not be considered. The Contractor shall submit with his claim, substantiating papers covering the entire amount shown on the claim. The Owner shall take the claim under consideration, and may make such investigations as are deemed necessary, and shall be the sole judge as to the equitability of such claim and such decision shall be final. Notwithstanding any provisions of this Contract to the contrary, no provision of this section shall be construed as entitling the Contractor to compensation for delays due to inclement weather, delays due to failure of Surety, for suspensions made at the request of the Contractor, or for any other delay provided for in the Contract Documents, Specifications, Special Provisions, Proposal, Contract, Change Order, Field Order or Supplemental Agreement. 4.15 TERMINATION OF CONTRACT: The Contract may be terminated by the Owner for cause or convenience. Notwithstanding the below, the Contractor shall not be relieved of the liability to the Owner for damages sustained by the Owner by virtue of breach of the award by the Contractor and the Owner may withhold any payments to the Contractor for the purpose of set off until such time as the exact amount of damages due the Owner from the Contractor is determined. Owner reserves the right to take possession of any machinery, implements, tools, or materials of any description that shall be found upon the Work, to account for said equipment and materials, and to use the same to complete the Project. When the Work is thus finally completed, the total cost of the same will be computed. If the total cost is more than the Contract price, the difference shall be paid to the Owner either by the Contractor or his Surety. If the total cost is less than the Contract price, the difference will be paid by the Owner to the Contractor or his Surety. In case of termination all expenses incident to ascertaining and collecting losses under the bond, including Project Engineer, or Project Manager, and legal services, shall be assessed against the bond. 4.16 TERMINATION FOR CAUSE: The Owner may terminate the Contract for cause due to the actions or inactions of the Contractor. Cause includes, without limitation: a) If the Work to be performed under the Contract is assigned by the Contractor without written permission of the Owner; b) Contractor's disregard of Laws or Regulations of any public body having jurisdiction; c) Contractor's repeated disregard of the authority of the Project Engineer; ; d) If a general assignment of the Contractor’s assets is to be made for the benefit of its creditors; e) If a receiver is appointed for the Contractor or any of its property; Page 390 of 436 21 f) Substantial evidence of collusion for the purpose of illegally procuring a Contract or perpetrating fraud on the Owner in the construction of the Work under the Contract; g) If the Contractor has materially breached any of the conditions, provisions or covenants of the Contract; h) Failure of the Contractor to promptly repair, replace or remove any defects in materials or Work or any defects in materials or Work of any other nature, the correction of which has been directed in writing by the Project Engineer, or Project Manager; i) If, at any time, the performance of the Work under the Contract is being unnecessarily delayed or if the Contractor is willfully or deliberately violating any of the conditions, provisions, or covenants of the Contract Documents, or if the Contractor is executing the same in bad faith or otherwise not in accordance with terms of the Contract; j) Evidence that the progress being made by the Contractor is insufficient to complete the Work within the specified time; k) Failure of the Contractor to start the Work on the date given in the Notice to Proceed; l) If the Work or any part of the Work is not fully completed within the time or times named for its completion or within the time to which such completion date or dates have been extended; m) If the Contractor abandons the Work by failing to be at work site for two consecutive days, and performing work, on days upon which the schedule anticipates work to be performed; n) If the Contractor fails to maintain the required Bonds, licenses, permits, or insurance; o) Bankruptcy or insolvency of the Contractor, or if the Contractor shall allow any final judgment to stand against him unsatisfied for a period of ten (10) days or shall make an assignment for the benefit of creditors. p) 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, kickbacks, collusive proposing, bid-rigging, antitrust, fraud, undue influence, theft, racketeering, extortion or any offense of a similar nature, in connection with Contractor’s business; or q) If other just cause exists. 4.16.1 Written Notice - The Owner will send written notice to the Contractor and the Surety of the Owner’s intent to terminate for cause and will give the Contractor and Surety ten (10) days from the date the notice was sent to cure the default, if such default is subject to cure, or provide to the Owner in writing, a detailed plan of how it will remove the causes for termination, except that, if the Completion Date is less than ten (10) days away, the notice may specify less than ten (10) days. If the Contractor or Surety does not submit such plan within the time established, or if, in the judgment of the Owner, such plan will not ensure the satisfactory performance of the Work, the Owner may declare the Contract terminated on the effective date specified in the notice or any other date thereafter. 4.16.2 Discontinue Work - In the event of termination for cause, the Owner shall notify the Contractor to discontinue all Work under the Contract and the Contractor shall immediately respect such notice, stop all Work and cease to have any right to possession of the Work site. 4.16.3 Contract Forfeiture - In addition, the Contractor shall forfeit its Contract as of the specified effective date of termination. 4.16.4 Possession of Materials and Equipment - Upon such termination for cause, the Owner may take possession of all materials, equipment, tools, and temporary material manufacturing plants as may be on the site of the Work or necessary for completion of the Work and take over the Work and prosecute the same to completion, by Contract or otherwise, for the account and at the expense of the Contractor. 4.16.5 Cost Liability - If Owner proceeds as provided in Paragraph 4.16, Contractor shall not be entitled to receive any further payment until the Work is completed. If the unpaid balance of the Contract Price exceeds all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) sustained by Owner arising out of or relating to completing the Work, such excess will be paid to Contractor. If such claims, costs, losses, and damages exceed such unpaid balance, Contractor (and/or its surety) shall pay the difference to Owner. Such claims, costs, losses, and damages incurred by Owner will be reviewed by the Project Engineer as to their reasonableness and, when so approved by the Project Engineer, incorporated in a Change Order. When exercising any rights or remedies under this Paragraph, Owner shall not be required to obtain the lowest price for the Work performed. 4.17 TERMINATION FOR CONVENIENCE OF THE OWNER: The performance of Work under the Contract in whole or in part may be terminated without cause by the Owner whenever the Owner, in its sole discretion, shall determine Page 391 of 436 22 that such termination is in the best interest and convenience of the Owner or whenever the Owner is prohibited from completing the Work for any reason. Such termination shall be effected by giving not less than three (3) days’ written notice to the Contractor specifying the extent to which performance of the Work is terminated and the date upon which such termination becomes effective. 4.17.1 Contractor Responsibilities - Upon receipt of such notice of termination, the Contractor shall: a) Stop work under the Contract on the date and to the extent specified in the Notice of Termination; b) Place no further orders or subcontracts for materials, services or facilities, except as may be necessary for completion of such portion of the Work under the Contract as is not terminated; c) Terminate all orders and subcontracts except as necessary to complete Work which is not terminated; d) If directed in writing by the Owner to do so, assign all right, title, and interest in subcontracts and materials in progress, in which case the Owner will have the right, in its discretion, to settle or pay any or all Claims arising out of the termination of such subcontracts; e) Transfer title and deliver to the Owner in the manner, at the times, and to the extent, if any directed by it, (a) the fabricated or un-fabricated parts, Work in process, completed Work, supplies and other material procured as a part of, or acquired in connection with the performance of, the Work terminated by the Notice of Termination, and (b) the completed or partially completed Plans, drawings, information, and other property, which, if the Contract had been completed, would have been required to be furnished to the Owner; f) Settle outstanding liabilities and claims with the approval of the Owner; g) Complete performance of such part of the Work not terminated; and h) Take such other actions as may be necessary, or as may be directed by the Owner, for the protection and preservation of the property related to the Contract. 4.17.2 Payment for Work Performed - With respect to Contract Work performed prior to the effective date of the Notice of Termination, the total (without duplication of any items) of: a) The cost of such Work; b) The cost of settling and paying claims arising out of the termination of Work under subcontracts or orders as provided in subparagraph (d) above, exclusive of the amounts paid or payable on account of supplies or materials delivered or services furnished by the Subcontractor prior to the effective date of the Notice of Termination of Work under the Contract, which amounts shall be included in the cost on account of which payment is made under (a) above; c) A sum, as profit on the cost of such Work, determined by the Owner to be fair and reasonable; provided, however, that if it appears that the Contractor would have sustained a loss on the entire Contract had it been completed, no profit shall be included or allowed under this subparagraph and an appropriate adjustment shall be made by reducing the amount of the settlement to reflect the indicated rate of loss; d) The reasonable cost of the preservation and protection of property incurred pursuant to subparagraph (h) and any other reasonable cost incidental to termination of Work under this Contract, including expense incidental to the determination of the amount due to the Contractor as the result of the termination of Work under this Contract. 4.17.3 Remaining Inventory - Except as provided herein, any inventory paid for by the Owner but remaining upon the termination of the Contract may, with written approval of the Owner, be sold or acquired by the Contractor under the conditions prescribed by and at prices approved by the Owner. 4.17.4 Request for Final Payment - Upon receipt of notice of such termination, the Contractor shall submit to the Project Engineer, or Project Manager, a request for final payment, in a form and with certification prescribed by the Owner. Such request shall be submitted promptly but in no event later than sixty (60) days from the effective date of termination, unless extended in writing by the Project Engineer, or Project Manager, upon the written request of the Contractor within such sixty (60) day period, or such earlier date as is provided by law. 4.17.5 Profit - Subject to the provisions contained herein, the Contractor and the Owner may agree upon the whole or any part of the amount or amounts to be paid to the Contractor by reason of the total or partial termination of Work pursuant to this Section, which amount or amounts may include an allowance for profit on Work done; provided that such agreed amount or amounts, exclusive of settlement costs, shall not exceed the total Contract price as reduced by the amount of payments otherwise made and as further reduced by the Contract price of Work terminated. The Contract will be amended accordingly, and the Contractor will be paid the agreed amount. Page 392 of 436 23 4.17.6 Calculation of Final Payment - The final payment to the Contractor after a termination for convenience shall be calculated as follows: a) From the Contract Price, subtract the following: 1) The total amount paid to the Contractor to date; 2) The value of the Work completed since the last approved pay application; 3) The total amount of retainage withheld by the Owner to date; 4) The agreed price for, or the proceeds of sale of, any materials, supplies, or other things acquired or sold by the Contractor or sold pursuant to these General Conditions and not otherwise recovered by or credited to the Owner; 5) The total of all claims the Owner may have against the Contractor; and 6) Any outstanding claims pursuant to C.R.S. § 38-26-107, as amended or superseded. b) Multiply the number resulting by 0.05. The number resulting is the full and complete compensation for anticipated profits c) Add the following to the total resulting from the prior step: 1) Any actual costs incurred by the Contractor for restocking charges; 2) The agreed upon price of protecting the Work in the manner, if any, directed by the Owner; 3) The amount of retainage withheld by the Owner to date; and 4) The value of the Work completed since the last approved pay application. The sum calculated under this article, when paid to the Contractor, shall constitute full and final settlement of the Contract Price. 4.17.7 Defective Work - The settlement for the Work performed shall not relieve the Contractor, or its surety, from responsibility for defective Work and/or materials on the completed portion of the Work nor for labor and materials or any other items as guaranteed by the Bonds. 4.17.8 Owner Access - Unless otherwise provided for in this Contract, or by applicable statute, the Contractor, from the effective date of termination and for a period of three years after final settlement under this Contract, shall preserve and make available to the Owner at all reasonable times at the office of the Contractor, but without direct charge to the Owner, all books, records, documents and other evidence bearing on the costs and expenses of the Contractor under this Contract and related to the expenses of the Contractor under this Contract and related to the Work terminated hereunder, or to the extent approved by the Owner, photographs, micro-photographs, or other authentic reproductions thereof. 4.17.9 Right to File Claim - If the Parties fail to agree in whole or in part on the amount or amounts to be paid to the Contractor in connection with the termination of work pursuant to this article, the Contractor may submit a claim as provided in these General Conditions, except that, if the Contractor has failed to submit its request for payment within the time provided above and has failed to request an extension of such time, it shall have no such right. 4.17.10 Total Sum to be Paid - The total sum to be paid to the Contractor under subparagraph (a) above will not exceed the total Contract price as reduced by the amount of payments otherwise made and as further reduced by the Contract price of Work terminated. 4.17.11 Deduction for Claims - In arriving at the amount due the Contractor under this Section, there will be deducted (i) any claim which the Owner may have against the Contractor in connection with this Contract, (ii) the agreed price for, or the proceeds of sale, of materials, supplies or other things acquired by the Contractor or sold, pursuant to the provisions of this Section and not otherwise recovered by or credited to the Owner and (iii) the full amount of any statutory or other claim against the Contractor filed with the Owner. 4.17.12 Subcontractors - The Contractor shall insert in all subcontracts that the Subcontractor shall stop Work on the date of and to the extent specified in a Notice of Termination from the Owner and shall require that any tier subcontractors insert the same provision in any tier subcontracts. 4.18 COOPERATION WITH OTHER CONTRACTORS: In connection with the improvements under this Contract, the right is reserved by the Owner to award any Work not included in the Contract to another Contractor for performance during the progress of the Work, or to perform such Work with the Owner's forces, and the Contractor under this Contract shall cooperate and so conduct his operation as to minimize the interference therewith, as directed by the Project Engineer, or Project Manager. Page 393 of 436 24 4.19 TERMINATING OF CONTRACTOR'S RESPONSIBILITY: This Contract will be considered complete when all Work and final cleanup has been finished, the Work accepted by the Owner, and all claims for payment of labor, materials, or services of any kind used in connection with the Work have been settled for by the Contractor or his Surety. The Contractor will then be released from further obligation except as set forth in the Surety Bond and for his responsibility for injury to persons or property arising from his duties and obligations under Section 7. The Surety Bond executed for performance of this Contract shall be in full effect for a period of one year following acceptance of the Work, except that with regard to the representation regarding copyright infringement found in Article 18, the Surety shall remain in effect for three years and with regard to the representation regarding patent infringement found in Article 18, the Surety shall remain in effect for six years. Neither the final payment nor any provision in the Contract documents shall relieve the Contractor of the responsibility for negligence or faulty materials or workmanship. The Contractor shall warrant his work to be free from faulty materials or workmanship for the period of one year after final payment and upon written notice he shall remove any defect due thereto and pay for any damage due to other Work resulting there from which shall appear within the one-year period. Remedied Work shall carry the same warranty as the original Work starting with the date of acceptance of the replacement or repair. Payment to the Contractor will not relieve him of any obligation under this Contract. Article 5. PROJECT AND CONSTRUCTION MANAGEMENT 5.1 AUTHORITY OF PROJECT ENGINEER, OR PROJECT MANAGER: The Project Engineer, or Project Manager, shall decide any and all questions which may arise as to the quality and acceptability of the materials furnished, the Work performed, the manner of performance and the rate of progress of the Work. He/She shall decide all questions which may arise as to the interpretation of the Plans and Specifications, all questions as to acceptable fulfillment of the Contract, all disputes and mutual rights by the Contractors if there is more than one Contractor on the Work, and all questions as to compensation. The decision of the Project Engineer, or Project Manager, shall be final. He/She shall have executive authority to make effective such decisions and to enforce the Contractor to carry out all orders promptly. The Project Engineer, or Project Manager, shall be the primary interpreter of the meaning and intent of the Construction Documents and shall be, in the first instance, the judge of the performance of the Contract. The Project Engineer, or Project Manager, will visit the site at appropriate intervals to become familiar with its progress and quality and to determine in general if the Work is being performed in such a manner that it will, when fully completed, be in accordance with the Contract Documents. The Project Engineer, or Project Manager, shall, in a timely manner, evaluate and issue written determinations resolving any claims or disputes submitted to the Project Engineer, or Project Manager, for review under the Contract. Interpretations and decisions of the Project Engineer, or Project Manager, will be consistent with the intent of, and reasonably inferable from, the Contract Documents. The Project Engineer, or Project Manager’s decisions on matters relating to aesthetic effect shall be final if consistent with the intent expressed in the Contract Documents. In exercising its authority to make such determinations, the Project Engineer, or Project Manager, shall exercise independent professional judgment based on the Contract Documents and shall not favor Contractor or Owner. All such determinations shall be subject to judicial review, provided, however, that any matters designated as Disputes under the Contract shall be submitted to Dispute Resolution in accordance with the Contract before being made the subject of litigation unless the Contract specifically provides otherwise. 5.2 COMMUNICATIONS: Contractor shall furnish both Owner and Project Engineer copies of all notices Contractor gives to either the Project Engineer, Project Manager, or Owner under the Contract relating to Applications for Payment, Change Directives, Proposed Changes, Change Orders, Progress Payments, or claims for adjustment in the Contract Sum, Required Substantial Completion Date or Required Final Completion Date. Such duplicate notice shall also be given as to other matters requested in writing by Owner or Project Engineer, or Project Manager. 5.3 SUPERVISION: The Contractor shall supervise and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. The Contractor shall be solely responsible for the means, methods, techniques, sequences, and procedures of construction. The Contractor shall be responsible to see that the completed work complies with the Contract Documents. The Contractor shall designate and keep on the Work at all times during its progress a competent Superintendent who shall not be replaced without prior written notice to the Owner and Project Engineer. The Superintendent will be the Contractor's representative at the site and shall have authority to act on behalf of the Contractor. All communications given to the Superintendent shall be as binding as if given to the Contractor. During periods when the Work is suspended, the Contractor shall make appropriate arrangements for any emergency work which may be required. Page 394 of 436 25 Whenever the Superintendent is not present on any particular part of the Work where the Project Engineer, or Project Manager, may desire to inform the Contractor relative to interpretation of the Plans and Specifications or to disapproval or rejection of materials or Work performed, the Project Engineer, or Project Manager, may so inform the foreman or other worker in charge of the particular part of the Work in reference to which the information is given. Information so given shall be as binding as if given to the Superintendent. The Contractor will be supplied with four (4) copies of the Plans, and three (3) copies of the Specifications and Special Provisions. He shall have available at the job site, at all times, one copy each of said Plans, Specifications and Special Provisions, exclusive of the set designated for As-Built Drawings. Additional copies of Plans, Specifications and Special Provisions can be obtained by the Contractor for the cost of reproduction. 5.4 CONTRACTOR PERFORMANCE: The Contractor will perform the Work or cause the Work to be performed in a manner that is in compliance with the requirements of the Contract Documents. The Contractor shall perform the Work exactly as specified by the Contract Documents. Unless otherwise provided in the Contract Documents, for the Unit Prices, the Contractor shall provide and pay for all labor, materials, equipment, tools, supplies, construction equipment and machinery, water, heat, electricity, energy, utilities, transportation, any temporary construction easements not provided by the Owner, apparatus, permits, superintendence, maintenance, dismantling, removal, and other facilities and services, necessary for the proper execution and completion of the Work, whether temporary or permanent, and whether or not incorporated or to be incorporated into the Work. The Contractor shall be solely responsible for all construction means, methods, safety, techniques, sequences and procedures unless otherwise specified in the Contract Documents. There is a need for 24-hour access to the Contractor’s Superintendent in case of emergency. The contractor shall supply the Project Engineer, or Project Manager, with a contact telephone number through which the Superintendent may be reached at any time. When the work includes adjusting valve boxes, meter pits, manholes, pavement markings and/or striping, etc., the Contractor shall complete this work within ten (10) days of placing the final lift of asphalt. 5.5 WORK PERFORMED UNDER ADVERSE WEATHER CONDITIONS: Adverse weather conditions are those that can, depending on the Work to be performed, cause defective Work. Examples include: high or low temperatures, excessive moisture, unusual drying conditions, or high winds. Construction methods and practices that have been or may be developed for Work performed under such circumstances may only be used after the Project Engineer, or Project Manager, has approved the concept of such method or practice. If the Contractor does attempt Work during periods of adverse weather conditions without the Project Engineer’s, or Project Manager’s, approval, that Work shall be at the Contractor’s sole risk. 5.6 USE OF MATERIALS FOUND ON THE WORK SITE: The Contractor, with the approval of the Project Engineer, or Project Manager, may use in the proposed construction, any stone, sand, or gravel found on the site. The Contractor will not be paid for such excavation unless specifically stated in the Proposal, and he shall replace with other suitable material, without compensation, all of that portion of the material so removed. If it was intended that any or all of the material so excavated and used was to have been wasted, then the Contractor will not be required to replace it. The Contractor shall not excavate any material from the site which is not within the excavation as indicated by the slope and grade lines, without being authorized in writing by the Project Engineer, or Project Manager. 5.7 FINAL CLEANING UP: During the Project's final cleanup, the Contractor shall remove from the site all machinery, equipment, surplus and discarded materials, rubbish, temporary structures, and stumps or portions of trees. The streets and adjacent properties in the Project shall be repaired to as good or better condition than existed prior to construction. This shall include removal of all dirt or mud from streets and lawns. No extra payment shall be made for these items. The Contractor shall leave the Project in a neat and presentable condition. (See Article 17, below). 5.8 SURVEYS: The Contractor shall develop and arrange for all engineering surveys necessary, in the Owner’s judgment, to establish reference points for the construction of the Work. The Contractor assumes full responsibility for construction according to the established lines and grades. If the Contractor proceeds with the Work without having lines and grades set, the Contractor will not be relieved of strict compliance with the Contract Documents. Page 395 of 436 26 The Contractor shall carefully protect all monuments and property markers from disturbance or damage. The Contractor, at its expense, will replace any monuments or benchmarks destroyed by the Contractor using a professional land surveyor licensed in the State of Colorado. Unless otherwise stated in the Specifications or the Special Conditions, the Owner will provide all reference points shown on the Contract Drawings by coordinates and/or elevation. The Contractor must accurately transfer the survey control information to the points of application to ensure that all elements of the Work are correctly located. Requests by the Contractor to relocate survey reference points must be made ninety-six (96) hours prior to the time when the point will be disturbed in order to permit the Owner to accomplish such surveys on normal working days. Any Work that the Contractor begins before confirming the reference points provided may be rejected. Should the original reference points that the Owner provided be obliterated or dislodged by operations that the Contractor controls, the Owner will replace them and charge the Contractor for the resurvey. 5.9 LINES AND GRADES: Contractor shall survey and stake and shall be responsible for laying out the work. The Contractor shall preserve all stakes, bench marks, and any other survey points and shall pay for the replacement, in accordance with state law, of any stakes, benchmarks, or other survey points destroyed by the Contractor or any Subcontractor. 5.10 VALUE ENGINEERING: Value engineering is the independent review of a project during the planning and design phases to reduce costs, save time, improve operations, reduce environmental and other impacts, improve safety, and improve value and quality. Proposed changes in materials or methods used must be approved by the Project Engineer, or Project Manager, and any agency having jurisdiction over the affected work before such work is attempted. The Contractor shall be paid fifty percent (50%) of all identifiable cost savings resulting from said value engineering approved and accepted. A Change Order must be issued to effect such a value engineering task. 5.11 SANITARY REGULATIONS: The Contractor is responsible for providing proper health and sanitation facilities for its employees, in compliance with any rules and regulations of the Colorado Department of Public Health and Environment or any other agencies having jurisdiction. The Contractor shall provide and maintain in a neat, sanitary condition, such accommodations for the use of employees as may be necessary to comply with the requirements and regulations of the State Department of Health and the Occupational Safety and Health Administration (OSHA). As stated in OSHA Construction Standard 1926.51 C, the Contractor shall supply temporary sanitary facilities as per the following table: Number of Employees Minimum Toilet Facilities 20 or less 1 Toilet 21 to 50 1 Toilet and 1 Urinal 51 or more 1 Toilet and 1 Urinal for each 50 Employees This requirement to provide sanitary facilities will not be measured and paid for separately but shall be considered incidental to and included in the cost of the Work. At convenient places, the Contractor shall provide fly-proof outside toilets which are to be maintained in a sanitary condition. Toilets shall not be permitted in any reservoir area and shall not be permitted where they may pollute a water supply. The Contractor shall always provide an abundant supply of safe drinking water for Contractor’s employees and shall give orders against the drinking of any water known to be unsafe in the vicinity of the Project. The Contractor shall provide and empty daily a thirty (30) gallon or larger trash can near each toilet. 5.12 STAGING AND STORAGE: With the approval of the Project Engineer, or Project Manager, the Contractor may obtain sites of his/her choosing for equipment storage and/or materials stockpiling. The Contractor shall not occupy storage sites without prior written approval by the Project Engineer, or Project Manager. A list of such sites showing the proposed truck route for ingress and egress for each site shall be submitted to the Project Engineer, or Project Manager, for approval at least five (5) days prior to intended use. For all sites approved and used, Contractor shall be responsible for the following: a) Obtaining prior written permission of the owner. A copy of this permission shall be provided to the Owner; b) Keeping stockpiles and equipment confined within the approved area and in accordance with applicable erosion control requirements; c) Providing security for materials and equipment at the site; d) Providing for public safety at the site; Page 396 of 436 27 e) Keeping access roads clean and in good condition and in accordance to the Owner’s Erosion Control requirements; and f) At Contractor’s sole cost expense, restoring the site to its original or better condition at the completion of the Work. 5.13 SALVAGE: Items removed by Contractor shall become the property of Contractor unless other disposition or repositioning is required by the Contract Documents or needed for the Work. The Contractor may reuse such items elsewhere, sell such items with proceeds of said sale becoming the property of Contractor or otherwise dispose of such items from the site. Items removed by the Contractor that do not have any salvage value are to be disposed of by Contractor at an approved waste disposal site at the Contractor’s expense, except for any items that the Owner will take for recycling. 5.14 MATERIALS AND EQUIPMENT FURNISHED BY THE CONTRACTOR: Unless otherwise provided for in the Specifications, all workmanship, equipment, materials, and articles incorporated in the Project are to be new, suitable for the purpose used, of good quality, free from faults and defects and in conformance with the Contract Documents. The Contractor further warrants that it has full title to all parts, materials, components, equipment, and other items conveyed to the Owner under the terms of the Contract, that its transfer of such title to the Owner is rightful and that all such parts, materials, components, equipment, and other items shall be transferred free and clear from all security interests, liens, claims, or encumbrances whatsoever. Materials, supplies, and equipment to be incorporated into the Project shall not be purchased by the Contractor or any Subcontractor subject to chattel mortgage or under a conditional sales contract or other agreement by which an interest is retained by the seller. The Contractor agrees to warrant and defend such title against all persons claiming the whole or any part thereof, at no cost to the Owner. The Contractor shall furnish the Owner, for the Project Engineer, or Project Manager’s approval, the name of the manufacturer of machinery and other equipment for materials the Contractor contemplates incorporating in the Project. The Contractor shall also furnish information on capacities, efficiencies, sizes, etc., and other information as may be required by the Project Engineer, or Project Manager. All items shall be labeled to indicate the Contract and Project name, Contractor, source of supply, and manufacturer and shall be submitted in sufficient time to permit proper consideration by the Project Engineer, or Project Manager, without impacting the Construction Schedule. The Contractor shall have available for use when needed all necessary construction machinery and equipment. Such machinery and equipment shall comply with all applicable federal, state and local safety requirements and be in good working condition, adequate for the task, and in the numbers needed to maintain a rate of progress sufficient to complete the Work within the Contract Time and milestones. Whenever an operation is undertaken which must be accomplished without any slowdown or stoppage, or to avoid an inferior product, the Contractor shall provide standby equipment capability so that an equipment breakdown does not disrupt that activity. The Contractor shall give the Project Engineer, or Project Manager, three (3) copies of all shop manuals, operating manuals, parts lists, classifications, catalog cuts, specifications, warranties and guarantees for all equipment and machinery installed. Consideration of a product as an “equal” or “superior” by the Project Engineer, or Project Manager, may require that the manufacturer of such product furnish guarantees that extend beyond the usual product warranty time. The refusal of a manufacturer to provide such guarantees is sufficient reason for rejecting the product. The Contractor shall not incorporate any materials into the Project or cover any part of the Work until it has been inspected and approved according to the Contract Documents. Machinery, equipment, materials, and articles installed or used without the Project Engineer, or Project Manager’s approval are at the risk of subsequent rejection. The Contractor shall be responsible for materials delivered and Work performed until completion and final acceptance of the entire construction thereof. The Contractor shall bear the risk of injury, loss or damage to any and all parts of the Work for whatever cause, whether arising from the execution or from the non-execution of Work. The Contractor shall rebuild, repair or restore Work and materials which have been damaged or destroyed from any causes before completion and acceptance of the Work and shall bear the expense thereof. The Contractor shall provide security and drainage and erect temporary structures as necessary to protect the Work and materials from damage. The Contractor shall be responsible for materials not delivered to the site for which any progress payment has been made to the same extent as if the materials were so delivered. 5.15 SUBSTITUTION OF MATERIALS AND EQUIPMENT: After the award of the Contract, the Contractor may ask for substitution of specified material or equipment with equal or equivalent, or superior items only under the Page 397 of 436 28 following circumstances: (i) The Contractor provides evidence to the Project Engineer, or Project Manager, that, in the Project Engineer, or Project Manager’s sole opinion, establishes that an item of specified material is not available; (ii) the Contractor provides evidence to the Project Engineer, or Project Manager, that, in the Project Engineer, or Project Manager’s sole opinion, establishes that the specified item will have an unreasonable delivery time due to no fault of the Contractor; or (iii) acceptance of such substitution would result in a significant saving to the Owner without materially impairing the quality or performance of the Work. If any of these circumstances exist, the Contractor shall request approval for a substitution at least thirty (30) days before the material or equipment must be ordered. All requests for substitutions shall be made in writing as part of a submittal. The request shall describe all features of the requested substitution including any tie-in with other elements of the Work, including utilities and controls along with the size and capacity of substitute materials or equipment. The request must be submitted on a form provided by or otherwise acceptable to the Project Engineer, or Project Manager, and shall list all differences from the product described in the Specifications, include the price of the specified item and the requested substitution, and describe any advantages or disadvantages of the proposed substitution. The Contractor shall be responsible for any effect upon related Work in the Project of any substitution and shall pay any additional cost resulting from or relating to any substitution. If the “equal or equivalent” material or equipment costs less than that specified, the Contractor shall so state in its request for substitution and, if the Owner accepts the proposed substitution, it may issue a Change Order to reduce the Contract Price by the amount of the direct cost savings without markup to the Contractor. If the equal or equivalent material or equipment is accepted for unavailability or unreasonable delivery time due to no fault of the Contractor, the Owner may, if appropriate, issue a Change Order to increase the Contract Price by the resulting actual, direct cost increase, if any, to the Contractor, without markup. 5.16 CUTTING AND PATCHING: The Contractor shall be responsible for all cutting, fitting, or patching that may be required to complete the Work, to make its several parts fit together properly or to tie the Work into other work that is shown in the Contract Documents. The Contractor shall organize and plan the Work to reduce to a minimum the need for cutting or otherwise modifying or removing load-bearing structural elements to accommodate the installation of other elements of the Work. If two or more contractors are doing work in the same place, the Contractor shall be responsible for the coordination effort needed to avoid or to reduce the amount of cutting, modifying or removing of structural elements to accomplish such work. However, if modification or removal of structural elements is required because the Work could not be organized and planned to avoid that need, the Contractor shall inform the Project Engineer, or Project Manager, of the need so that the consequences of such modification or removal of structural elements can be assessed. No structural element shall be cut, drilled, bored or otherwise modified unless cutting, drilling, boring or other modification is indicated in the Contract Documents. If the Contractor needs to modify a structural element from its original design, the Contractor must submit to the Project Engineer, or Project Manager, a request to make the modification. The request must provide complete details including all necessary calculations performed by a professional engineer licensed in the State of Colorado to show that the structural elements can still function as originally designed. The request must be accepted by the Project Engineer, or Project Manager, before any modification is made. The Contractor shall be responsible for all repair, replacement, and patching that is necessary to restore the Work, other property, or work of others damaged by the Contractor or Subcontractor. 5.17 SAMPLES AND TESTING: All materials and equipment used in the Project will be subject to sampling and testing by an independent testing company acceptable to the Owner according to generally accepted standards and as required in the Contract Documents. In the absence of direct references, the sampling and testing of materials will be done according to current specifications of the ASTM or the AWWA. The Contractor shall furnish all samples without charge. The Contractor will cooperate with the Project Engineer, or Project Manager, in collecting, handling, storing, and forwarding required samples including the furnishing of manpower and equipment when necessary. The Contractor will pay the cost of the initial test except when the Contract states otherwise. The Contractor will pay the costs for repeated tests due to failure of the initial test. The costs of any testing and retesting may be deducted from any payment due to the Contractor under the Contract. The Contractor will provide the Project Engineer, or Project Manager, at least twenty-four (24) hours prior notice for any inspection involving testing or sampling. The Contractor shall be responsible for testing of concrete and soils and, unless otherwise specified, the Contractor shall perform testing of all other materials and equipment. The Contractor shall provide the Project Engineer, or Page 398 of 436 29 Project Manager, with satisfactory proof of compliance with the requirements of the Contract Documents of any materials or equipment tested. Satisfactory proof of compliance shall be submitted in one or more of the following ways: a) Manufacturer’s Certificate of Compliance. For standard labeled stock products of standard manufacture that have a record of satisfactory performance in similar work over a period of not less than two (2) years, the Project Engineer, or Project Manager, may accept a notarized statement from the manufacturer certifying that the product conforms to the applicable specifications. b) Mill Certificates. For materials where such practice is the usual standard, the Project Engineer, or Project Manager, may accept the manufacturer’s certified mill and laboratory certificate. c) Testing Laboratory Certificates. The Project Engineer, or Project Manager, may accept a certificate from an independent commercial testing laboratory satisfactory certifying that the product has been tested within a period acceptable to the Project Engineer, or Project Manager, and that it conforms to the requirements of the Plans and Specifications. d) Report of Actual Laboratory Test. The Project Engineer, or Project Manager, may require that Contractor make actual tests of any product and submit a report of the specified test. Such test shall be made by a commercial testing laboratory satisfactory to the Project Engineer, or Project Manager, at the Contractor’s sole expense. 5.18 PROPERTY RIGHTS IN MATERIALS: The Contractor shall have no property right in materials after they have been attached, affixed or incorporated in the Work or the soil, or after payment has been made by the Owner to the Contractor for materials delivered to the site of the Work or stored subject to or under the control of Owner. Article 6. CHANGES IN THE WORK 6.1 CHANGES AND INCREASED OR DECREASED QUANTITIES OF WORK 6.1.1 General - The Contractor shall perform the Work, as changed by any Change Order, as if originally specified. All changes shall be accomplished by either a written Change Order or a written Field Order issued in accordance with these General Conditions. If a Field Order is used, a Change Order will be executed when the terms of the change are agreed upon. Changes to the Contract Price and Contract Time are authorized only by Change Orders approved in conformance with the Owner’s adopted purchasing policies. Without invalidating the Contract, the Project Engineer, or Project Manager, and/or Owner reserves and shall have the right, without notice to any Sureties, by written Change Order, to make any changes, from time to time, to the character and quantity of the Work, including but not limited to, the Drawings, Specifications, Plans or Addenda, as may be considered necessary or desirable to complete fully and acceptably the proposed Contract in a satisfactory manner. Such Change Order shall set forth with specificity the changed Work to be done and shall set forth any changes or extensions to the time of completion. The total of all such Change Orders associated with a project shall not, whether for additional work or items for use upon/within the project, increase the total cost of the Contract, based on the original estimate of quantities and unit prices contained in the Proposal, by more than 10%. Contractor shall be entitled to the cost of said increased units at the original Proposal price, but not to an adjustment of unit price. In the event the total cost of all such Change Orders associated with a project increases the total cost of the Contract by more than 10%, an equitable adjustment will be made and the Contract modified accordingly by a written Supplemental Agreement, provided, however, that except for claims based on errors in the Contract, no claim for change hereunder will be allowed for costs incurred more than 20 days before the Contractor gives written notice as herein required; and in the case of errors in the Contract for which the Owner is responsible, the adjustment will be increased costs, reasonably incurred by the Contractor in attempting to comply with such errors in the Contract Any plan of action, method of work, or construction procedure suggested orally or in writing to the Contractor by any employee, agent or representative of the Owner, which is not set out in approved Change Orders or Field Orders issued in accordance with the Contract Documents, if adopted or followed by the Contractor in whole or in part, shall be performed at the Contractor’s sole risk and responsibility. No change order, or other form of order or directive by the Owner’s representative which requires additional compensable work to be performed, and which work causes the aggregate amount payable under this contract to exceed the amount appropriated for the original contract, shall be executed, or shall work be performed by the contractor, unless the Owner first gives written notice to the Contractor that lawful Page 399 of 436 30 appropriations to cover the costs of such additional work have been made or unless such work is covered under a remedy-granting provision of this contract. For purposes of this paragraph, "remedy-granting provision" shall be defined as set forth in 24-91-103.6(4), C.R.S. The Contractor shall not start Work on any alteration requiring a Supplemental Agreement until the Agreement setting forth the adjusted prices has been executed by the Owner and the Contractor. All changes or approvals for increasing the Work as required and authorized herein, shall be in written form and approved and signed by the Project Engineer, or Project Manager, prior to the Work being done. All such writings and approvals shall be specific as to the nature of the Work and the quantities involved. Any Work performed without prior written approval of the Project Engineer, or Project Manager, shall not be binding on the Owner. The Contractor may not treat any order, statement or conduct of the Project Engineer, or Project Manager, as a change under this article nor become entitled to an equitable adjustment in the Contract Price or Contract Time except as provided in this article. Claims for changes in the Contract Price or Contract Time of Performance will not be considered after the Final Payment has been made. Change Orders involving an increase in the Contract Price must be authorized in accordance with the City’s adopted purchasing policy, a copy of which is available upon request. Such purchasing policy provides that the total of all such Change Orders associated with a project that increases the total cost of the Contract by more than 10% must be approved by a supplemental agreement. 6.1.2 Owner Change Request - The Owner may, without notification to any Surety, require the Contractor to perform additive or deductive changes to the Work within the general scope of the Project without invalidating the Contract or any Bond. When the Owner desires to initiate a change, the Project Engineer, or Project Manager, will issue a change request informing the Contractor of the proposed change in the Work, and requesting the Contractor’s detailed price proposal for such change. The Contractor, at no expense to the Owner and within the time period specified in the Change Request, shall provide the Project Engineer, or Project Manager, with a complete and itemized proposal for the change in the Work, which shall include the estimated increase or decrease in the Contract Price or Contract Time. Such increase or decrease shall be based on the criteria and methods described in these General Conditions. The Contractor shall be responsible for any delays in the Work and any additional costs to the Owner caused by the Contractor’s failure to submit a complete price proposal within the time provided. The Contractor shall participate with the Owner in prompt joint analysis and negotiations to finalize a Change Order. The issuance of a Change Request by the Owner is not a prerequisite to the issuance of a Field Order. 6.1.3 Field Orders - The Project Engineer, or Project Manager, may make changes in the details of the Project at any time, by issuing a Field Order. Upon receipt of a Field Order, the Contractor shall promptly sign the Field Order and return it to the Project Engineer, or Project Manager, and shall promptly proceed with performing the change in the Work. The Field Order shall not involve an increase or decrease in the Contract amount and not involve a change in the time for completion. A Field Order may be used when: a) The Owner determines that the Contractor must proceed immediately to perform a change in the Work in order to avoid an adverse impact on the schedule or other work, or to avoid or correct a situation where the health or safety of persons may be affected, and sufficient time is not available to negotiate a Change Order; or b) The Owner and Contractor have not completed their negotiation and reached agreement on all of the terms of a Change Order, but the Owner requires the Contractor to proceed without such agreement. If the Contractor believes that such Field Order entitles it to a change in Contract Price or Contract Time, or both, the Contractor shall give the Project Engineer, or Project Manager, written notice within five (5) days after the receipt of the Field Order. Within twenty (20) days after receiving the Field Order, the Contractor shall provide the Project Engineer, or Project Manager, with a complete and itemized proposal that includes the estimated increase or decrease in the Contract Price or Contract Time, or both, attributable to the changes based on the criteria and methods described in these General Conditions. The Contractor shall be responsible for delays to the Work and any additional costs incurred by the Owner caused by its failure to submit complete pricing information within the time provided above. Page 400 of 436 31 a) If the maximum cost of the change in the Work to be performed under a Field Order has not been agreed upon and reduced to writing in the actual Field Order, or if such change is not fully described under a Unit Price set forth in the Contract Documents or the Field Order, the Contractor shall proceed with such Work on a time and materials basis. b) Whenever Work is performed on a time and materials basis, the Contractor shall fully document all costs associated with such Work. Beginning with the first day such Work is performed and on a daily basis thereafter, the Contractor shall submit to the Project Engineer, or Project Manager, a daily itemization of all such costs in such form as the Project Engineer, or Project Manager, may require. c) The final Contract adjustment for Field Order changes in the Work performed on a time and materials basis shall be calculated in accordance with these General Conditions. When the Owner and the Contractor reach agreement on an adjustment to the Contract Price or Contract Time, or both as appropriate, such agreement shall be promptly executed as a Change Order. If the Owner requires Contractor to perform additional compensable work under a Field Order prior to executing a Change Order, the Contractor shall submit its costs to perform the work as periodically completed in its monthly application for payment, and Owner shall reimburse such costs, subject to retainage and any applicable withholding. In no instance shall the Owner be required to periodically reimburse Contractor for such additional compensable work prior to Contractor submitting to Owner an estimate of the cost of the additional compensable work to be performed. 6.1.4 Contractor Change Requests - If the Contractor: (i) receives any instructions, interpretations or directives which it believes are at variance with the Contract Documents or would require the Contractor to accelerate or decelerate the Work; or (ii) identifies what it believes are errors or omissions of any kind, including design errors or omissions, in the Drawings or Specifications; or (iii) encounters a differing site condition; or (iv) is delayed in performing the Work; or (v) becomes aware of any other matter or circumstance that the Contractor believes might require a change in the Contract Documents, Contract Time, or Contract Price, the Contractor shall give the Project Engineer, or Project Manager, prompt written notice of such matter and request a Change Order in a document identified as a “Contractor Change Request.” Following submission of a Contractor Change Request, the Contractor shall diligently continue performance of the Contract to the maximum extent possible. All Contractor Change Requests shall be dated, numbered sequentially, and shall describe the action or event that the Contractor believes may require the issuance of a Change Order. The Contractor shall also provide a description of possible Contractor actions or solutions to minimize the cost of the Contractor Change Request and, when possible, provide an estimate of the adjustment in the Contract Time and Contract Price which the Contractor believes is appropriate. a) With respect to orders, instructions, directives, interpretations, determinations, or the discovery of any errors or omissions in the Contract Documents, a Contractor Change Request shall be submitted before the Contractor acts on them, but in no event more than five (5) days after they have been, or reasonably should have been, received or discovered. b) With respect to any differing site conditions, a Contractor Change Request shall be submitted before the conditions are disturbed, but in no event more than five (5) days after the conditions are first discovered or reasonably should have first been discovered. c) With respect to delays, as set out in these General Conditions, a Contractor Change Request shall be submitted as soon as the Contractor becomes aware, or reasonably should have become aware, of the delay, but in no event more than five (5) days therefrom. d) With respect to any other matter or circumstance that the Contractor believes would require a change, a Contractor Change Request shall be submitted as soon as the Contractor reasonably has knowledge of the matter or circumstance, but in no event more than five (5) days after the Contractor becomes aware, or reasonably should have become aware, of such circumstance or matter. 6.1.5 Submittal Requirements and Waiver of Claims a) If the Contractor does not submit a Contractor Change Request within the time required by these General Conditions, any action by the Contractor related to such order, direction, instruction, interpretation, determination, design error or omission, or other matter, including delays or differing site conditions, will not be considered by the Owner as a change to the Work and the Contractor waives any claim for an adjustment on the Contract Price or the Contract Time. b) The Contractor shall, within ten (10) days after submitting a Contractor Change Request, provide the Project Engineer, or Project Manager, with a complete and itemized proposal that Page 401 of 436 32 sets out as specifically as practicable the requested adjustments to Contract Price, Contract Time, or other Contract provisions, and contains the other information described in these General Conditions. c) The proposal shall also contain a detailed explanation, citing all applicable provisions in the Contract Documents that support the Contractor Change Request. If the Contractor does not submit its itemized proposal for a Change Order within the time described above or within such extension that the Project Engineer, or Project Manager, in his or her discretion may have granted in writing, the Contractor waives any claim for an adjustment in the Contract Price or Contract Time arising out of the act or event giving rise to or necessitating a Contractor Change Request. d) The Contractor shall furnish, upon request, all additional information and data that the Project Engineer, or Project Manager, determines is needed to assist the Owner in evaluating and resolving the Contractor Change Request through negotiation. The Contractor shall give the Owner access to its books, correspondence, records, electronic data bases and files, and other materials relating to the work described in the Contractor Change Request, shall require its Subcontractors and Suppliers to provide the Owner with such access, and shall make its personnel and that of its Subcontractors and Suppliers available to discuss and answer cost, schedule, and other questions related to such request. Clear and legible copies of all necessary supporting records shall be provided to the Owner at no cost. Failure to submit requested information may be a basis for denial of the request. e) In the event the Contractor is ordered to perform Work under this Section for which payments are not determined hereunder, which in the opinion of the Owner it is impracticable to have performed by the Contractor's own employees, the Contractor will, subject to the approval of the Owner, be paid the actual cost to him of such Work and, in addition thereto, an amount of ten (10) percent of the actual costs to cover the Contractor’s superintendence, administration and other overhead expenses. The terms and conditions of any subcontract which the Contractor may propose to enter into in connection with Work under the provisions of this Section, shall be subject to the written approval of the Owner before such subcontract is made. f) In cases other than those described above, the Owner and the Contractor (on his own behalf and on behalf of their Subcontractors) shall endeavor to negotiate a reasonable Contract price and line adjustment in a Change Order on terms appropriate to the changed Work. The Contractor will be required to submit a sufficiently detailed price proposal supported with sufficient documentation so that the Owner can determine that (1) the proposal reflects all impacts on the Contract from Work additions, deletions and modifications shown in the change order being priced, and (2) the proposed prices are set out in such a way that their reasonableness can be evaluated against prices based on adequate price competition, Proposal unit prices, established catalog or market prices of commercial items sold in substantial quantities to the general public, prices set by law or regulation, recognized published price lists and indices, independently developed cost estimate and other appropriate price comparisons and (3) Contract provisions relating to Contract changes costing over $100,000.00 are complied with. If any prices or other aspects are conditional, such as on firm orders being made by a certain date or the occurrence or non-occurrence of an event, the Contractor shall identify these aspects in his Proposal. A negotiated Change Order shall set out prices, scheduling requirements, time extensions and all costs of any nature arising out of the issuance of a Change Order except for those cost and time aspects explicitly reserved on the face of the Change Order. g) In the event the Contractor and the Owner are unable to agree upon the Contractor's entitlement to an equitable adjustment or upon the amount thereof, or in the event that it is in the best interest of the Owner to have the Work proceed pending negotiation of amount of an equitable adjustment, the Owner may direct the Contractor to perform the Work in accordance with the Change Order, direction, instruction, interpretation, or determination, with any Contract price adjustments and progress payments for the Work to be determined on a Force Account basis in accordance with Section 1.5. The Contractor shall continue diligently to perform the Contract in accordance with the Owner's order, direction, instruction, interpretation, or determination during negotiations with respect to the Contractor's entitlement to an equitable adjustment hereunder or to the amount of any Contract price adjustment hereunder or to the amount or any Contract price adjustment or time extension. The Contractor and the Owner may agree on certain aspects of an equitable adjustment and take those aspects out of operation of Force Account provisions. h) For Change Orders, the Owner, or its representative shall have the audit and inspection rights as described below:  Where the agreed payment method for any Contract changes is to be by cost reimbursement, time and material, labor, hours, or any combination thereof, the Contractor shall maintain and the Owner or its representatives shall have the right to examine books, records, documents and other evidence and accounting principles and Page 402 of 436 33 practices sufficient to reflect properly all direct and indirect costs of whatever nature claimed to have been incurred and anticipated to be incurred for the performance of the Contract changes under this Subsection.  Contract changes exceeding $100,000.00 in costs: For submitted cost and pricing data in connection with pricing a Contract modification referred to in this Subsection, unless such pricing is based on Proposal unit prices, adequate price competition, established catalog or market prices of commercial items sold in substantial quantities to the public, or prices set by law or regulation, the Owner or his representatives shall have the right to examine all books, records, documents and other data of the Contractor related to the negotiation of or performance under the Contract Change Orders for the purpose of evaluating the accuracy, completeness and currency of the cost or pricing data submitted. The right of examination shall extend to all documents necessary to permit adequate evaluation of the cost or pricing data submitted, along with the computations and projections used therein.  Contract changes exceeding $10,000.00 but not $100,000.00 in costs: The Owner or his representatives prior to the execution of any Contract Change order in this Subsection or for a period of twelve months after execution shall, unless such pricing is based on Proposal unit prices, adequate price competition, established catalog of market prices of commercial items sold in substantial quantities to the public, or prices set by law or regulation, have the right to examine all books, records, documents, and other data of the Contractor relating to the negotiation and Contract Change Order for the purpose of evaluating the accuracy, completeness, and currency of the data submitted upon which negotiation is or has been based. To the extent the examination reveals inaccurate, incomplete or non-current data, the Contracting Officer may renegotiate the Contract Change Order price based on such data.  Contract changes of less than $10,000.00 in costs: The Owner may require from the Contractor appropriate documentation to support the prices being negotiated for Contract changes under this Subsection, and may refuse to complete negotiation until satisfactory documentation is submitted. i) For the purpose of this Section, costs shall include fines which would be assessed if extension(s) of time were not granted by Contract Change Order. j) The requirements of this audits and records section are in addition to other audit, inspection and record keeping provisions elsewhere in the Contract documents. k) Changes involving aggregate increases and decreases in excess of $100,000.00 shall be subject to the following:  A change involves aggregate increases and decreases in excess of $100,000.00 if the total value of Work affected, without regard to any increases or decreases, exceeds this amount; for example, a Change Order adding Work in the amount of $75,000.00 and deleting Work in the amount of $50,000.00 will be considered to involve aggregate increases and decreases of $125,000.00.  The Contractor shall submit in support of all items not based upon unit prices or lump sum prices contained in the Contract or upon the established prices at which commercial items are sold in substantial quantities to the public, statements by his vendors that the prices charged the Contractor are not greater than the prices charged by the respective vendors to their most favored customers for the same items in similar quantities.  Price reductions for defective cost or pricing data--price adjustments: If any price, including profit and fee, negotiated in connection with any price adjustment was increased by any significant sums because: (1) The Contractor furnished cost or pricing data which were not complete, accurate, and current as certified in the contractor's certificate of current cost or pricing data; or (2) Adjustments or any subcontract provisions therein required, furnished costs or pricing data which were not complete, accurate, and current as certified in the Subcontractor's certificate of current cost or pricing data; or (3) The Subcontractor or his prospective subcontractor furnished cost or pricing data which were required to be complete, accurate, and current and to be submitted to support a subcontract cost estimate furnished by the Contractor but which were not complete, accurate and current; or (4) The Contractor or a Subcontractor or his prospective subcontractor furnished any data, which were not complete, accurate, and current as submitted; (5) Then the price shall be reduced accordingly and the Contract shall be modified in writing accordingly to reflect such reduction. Any reduction in the Contract price due to defective subcontract data of prospective subcontractor, when the subcontract was not subsequently awarded to such subcontractor, will be limited to the amount (plus applicable overhead and profit markup) by which the actual subcontract, was less than the prospective subcontract cost estimate submitted by the Contractor, Page 403 of 436 34 provided the actual subcontract price was not affected by defective cost or pricing data; or (6) The Contractor shall require Subcontractors to certify to the best of their knowledge and belief that the cost and pricing data submitted are accurate, complete, and current as of the date of execution, which date shall be as close as possible to the date of agreement on the negotiated price of the Contract Change Order. l) In case a satisfactory adjustment in price cannot be reached for any item requiring a Supplemental Agreement, the Owner reserves the right to terminate the Contract as to said item as it applies to the terms in question and make such arrangements as may be deemed necessary to complete the Work. Should any of the changes, not requiring Supplemental Agreements, be made as provided herein, the Contractor shall perform the Work as altered, increased or decreased at the Contract unit price or prices. 6.1.6 Claims for Concealed or Unknown Conditions - If conditions are encountered at the site which are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or (2) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then notice by the observing party shall be given to the other party promptly before conditions are disturbed and in no event later than seven (7) days after first observance of the conditions. Site conditions which an experienced and prudent contractor could have anticipated by visiting the site, familiarizing himself with the local conditions under which the work is to be performed and correlating his observations with the requirements of the Contract Documents shall not be considered as claims for concealed or unknown conditions, nor shall the locations of utilities which differ from locations provided by the utility companies. The Project Engineer, or Project Manager, will promptly investigate such conditions and, if they differ materially and cause an increase or decrease in the Contractor’s cost of, or the required time for, performance of any part of the Work, will recommend an equitable adjustment in the Contract Sum or Contract Time, or both. If the Project Engineer, or Project Manager, determines that the conditions at the site are not materially different from those indicated in the Contract Documents and that no change in the terms of the Contract is justified, the Project Engineer, or Project Manager, shall so notify the Owner and Contractor in writing, stating the reasons. Claims by either party in opposition to such determination must be made within twenty-one (21) days after the Project Engineer, or Project Manager, has given notice of the decision. If the Owner and Contractor cannot agree on an adjustment in the Contract Sum or Contract Time, the adjustment shall be subject to further proceedings pursuant to Section 1.3.8 and Section 1.3.10. Such sections shall apply to claims by either party, notwithstanding language in said sections that they apply only to claims brought by the Contractor. 6.1.7 Specific Provisions for Delay-Based Contractor Change Requests - If the Contractor Change Request is based in whole or in part on a delay of any kind or nature, the complete itemized proposal shall include the following information in addition to all other required information: a) The date, nature, and circumstances of each event regarded as a cause of the delay; b) The names of all individuals acting on behalf of the Owner who are known or believed by the Contractor to have direct knowledge of the delay; c) If the Contractor claims acceleration costs of scheduled performance or delivery, the basis upon which acceleration arose; d) The identification of any documents and the substance of any oral communications known to the Contractor which substantiate, refute, or concern such delay; e) A Critical Path Method (CPM) schedule corrected to reflect actual performance, showing delay impacts as separate tasks and Contractor’s mitigation of such impacts; and f) The specific elements of Contract performance for which the Contractor may seek an equitable adjustment, including: 1) Identification of each Contract or schedule line item that has been or may be affected by such delay; 2) To the extent practicable, identification of the delay and disruption in the manner and sequence of performance, and the effect on continued performance, that have been or may be caused by such delay; 3) Identification of labor, materials, or both, or other cost items including overhead and Subcontractor costs, that have been or may be added, deleted, or wasted by such delay; 4) A statement that the Contractor is maintaining records by some generally accepted accounting procedure that allows the separately identifiable direct costs due to the delay, and those not incurred as a result of the delay, to be readily identified and segregated; 5) Estimates of the necessary adjustments to Contract Price, Contract Time and any other Contract provisions affected by the delay. Page 404 of 436 35 6.1.8 Determination by Project Engineer, or Project Manager. a) The Project Engineer, or Project Manager, shall respond in writing to any timely Contractor Change Request within ten (10) days of receipt of the complete and itemized proposal in support of the request. Failure of the Project Engineer, or Project Manager, to respond within such time period shall be deemed a denial of the Contractor Change Request unless the Project Engineer, or Project Manager, notifies the Contractor that additional time is necessary to review the Contractor Change Request. b) If a Contractor Change Request is denied by the Project Engineer, or Project Manager, in whole or in part, any claim for an increase in the Contract Price or Contract Time arising out of the act or event described in the Contractor Change Request is waived unless the Contractor timely submits a protest or dispute in accordance with these General Conditions. 6.2 ADJUSTMENT TO CONTRACT PRICE 6.2.1 Contract Price Adjustments - All adjustments to the Contract Price shall be determined by using one or more of the following methods in descending order: a) Unit Prices (as stated in the Contract Documents or subsequently agreed upon) multiplied by final verified quantities of work performed and subject to the requirements of paragraph 10.7 below. b) A negotiated lump sum. If requested by the Owner, the Contractor shall promptly provide itemized and sufficient substantiating data, including calculations, measurements, cost records, production rates, equipment types and capacity, labor costs by craft and other information that the Owner may reasonably require the Contractor to produce in order to permit the Owner to evaluate any lump sum Contractor Change Request. In pricing such Bids, the Contractor shall include estimates of the type of costs described in this article. c) Costs as determined in a manner previously agreed upon by the Parties, which include markups that do not exceed those described in this article. d) Time and Material costs as determined in the manner described in this article. These amounts may be reduced where necessary to take into account the cost of base Work, Work included in approved Change Orders, Work described in other Field Orders, idle time for workers and/or equipment when Work could have been performed in other locations or when the number of workers or amount of equipment provided exceeded the number or amount required to perform the Work, unsatisfactory Work, or Work that may be or was performed concurrently with the changed Work and which cannot be easily segregated from the changed Work. 6.2.2 Calculation of the Contract Adjustment - In no event shall the charge or credit to the Owner associated with any change exceed the sum of the following: a) Direct Labor. The actual net, direct increase or decrease in the cost of the Contractor’s labor. Such cost shall include only the cost associated with the workers who actually perform the changed Work. The cost of supervision, management and field or office overhead shall not be included or calculated as a direct labor cost. For shop work, the direct labor cost shall include only those workers who work directly on the item being manufactured or the actual operators of the equipment being used to handle the items being manufactured. b) Labor Burden. Contractor’s actual costs for worker’s compensation and liability insurance, payroll taxes, social security and employees’ fringe benefits (including employer paid health insurance) imposed on the basis of payrolls, and any other benefits provided to employees (including under any applicable collective bargaining agreement). This burden must reflect the variability of some burdens, i.e., social security. The burden shall be itemized and include all small tools and miscellaneous supplies. The total labor burden for such small tools shall not exceed two percent (2%) of the Direct Labor cost. c) Direct Material, Supplies, Installed Equipment. The actual net, direct cost of materials, supplies and equipment incorporated into or consumed by the Work. If actual costs are not available, this cost shall be the lowest commercially available price including all discounts, rebates, shipping and restocking charges, and applicable taxes. Such cost shall be based on buying the material, supplies and equipment in the largest practical quantity to receive quantity discounts. d) Equipment Costs. Without markup or operator, the lesser of (i) the actual net cost to the Contractor of owned or rented equipment, other than small tools; or (ii) the rental rate for such equipment as determined by using the following method(s):  Equipment rental rates listed in the appropriate rental rate book currently in use by CDOT. If an item of equipment does not appear in the rental rate book currently in use by CDOT, the rental rates published by the Associated Equipment Dealers may be used as a basis for negotiating a rental rate for a particular piece of equipment. The Contractor shall provide all information necessary to determine the appropriate rental rate at the time the equipment is brought on the job. Page 405 of 436 36  Rental equipment costs shall be determined using actual invoiced rates, less all discounts for basic equipment rental.  Mobilization/demobilization costs will be paid if the equipment is mobilized for Work described in a Change Order and is not otherwise to be mobilized or demobilized for the Work at the time. If the equipment is also used on Base Contract Work, no mobilization or demobilization cost will be paid. Mobilization/demobilization costs will be based on using the least expensive means to mobilize or demobilize. Equipment shall be obtained from the nearest available source. When the least expensive methods are used, the costs shown in the actual invoice will be the basis for pricing. e) Mark Up for Overhead and Profit. The Contractor or Subcontractor of any tier who actually performs the Work shall be entitled to a reasonable markup of no more than ten percent (10%) on the actual costs for Direct Labor, Labor Burden, Direct Material, Supplies, Installed Equipment, and Equipment Costs, as described in this article. Bonds and insurance are compensated at direct cost without markup. f) Bonds, Insurance, Permits and Taxes. The actual increases or decreases in the cost of premiums for bonds and insurance, permit fees, and sales, use or similar taxes related to the Work. 6.2.3 Totals as Equitable Adjustment - The Contractor agrees that the total of the above items constitute an equitable adjustment for any and all costs or damages resulting from a change. 6.2.4 No Equitable Adjustment for Obstruction by Contractor - No equitable adjustment shall be made as a result of costs resulting from any act, hindrance, obstacle, obstruction, interference, or omission of the Contractor, its Subcontractors, Suppliers, or Surety, or any other entity or individual acting on behalf of the Contractor, or any Subcontractor, Supplier, or Surety. 6.2.5 Calculation of Certain Equitable Adjustments - in case of delay in completion of the entire Contract due to drawings, designs or specifications that are defective and for which the Owner is responsible, the equitable adjustment for delays or costs incurred prior to notification to the Owner of such defect shall only include the extra cost and time reasonably incurred by the Contractor in attempting to comply with the defective drawings, designs or specifications before the Contractor identified, or reasonably should have identified, such defect. An equitable adjustment shall not include increased costs for delay resulting from the Contractor’s failure to continue performance during determination of any Contractor Change Request or claim. 6.2.6 Price Reductions for Defective Cost or Pricing Data - If it is later determined that pricing adjustments to the Contract were not correct due to incomplete or inaccurate pricing data by the Contractor or any Subcontractor or Supplier or that lower prices were reasonably available, the price shall be reduced accordingly and the Contract Price modified by an appropriate Change Order. 6.2.7 Variations in Estimated Quantities - The Contractor shall understand that the quantities set forth on the Statement of Work, the Proposal or other Contract documents are only approximate and that during the progress of the work, the Owner may find it advisable and shall have the right to omit portions of the work and to increase or decrease the quantities and reserves the right to add to or take from any items as may be deemed necessary or desirable. Under no circumstances or conditions will the Contractor be paid anything on account of anticipated profits upon the work or any portion thereof covered by the Contract which is not actually performed. Where the quantity of a Unit Price pay item in the Contract is an estimated quantity and where the actual quantity of such pay item varies more than 25% below the estimated quantity stated in the Contract, the Contractor shall make an equitable adjustment in the Contract Price, upon demand of the Owner. The Contract Price adjustment will be based upon any decrease in costs due solely to the variation below 75% of the estimated quantity. Where the quantity of a Unit Price pay item in the Contract is an estimated quantity and the actual quantity of such pay item is more than 25% above the estimated quantity in the Contract, the Owner may elect to terminate the Contract for convenience or issue a Change Order to adjust the Contract Price. The Contract Price adjustment will be based upon any increase in costs due solely to the variation above 125% of the estimated quantity. If the quantity variation is such as to cause an increase in the time necessary for completing the Work, the Contractor may request, in writing, an extension of time in accordance with these General Conditions. Page 406 of 436 37 6.2.8 Disposition of Excess or Obsolete Property - When the cost of materials, supplies, equipment or other personal property made obsolete or excess as a result of a delay is included in the equitable adjustment, the Project Engineer, or Project Manager, shall have the right to prescribe the manner of disposition of such property. 6.3 OMITTED ITEMS: The Project Engineer, or Project Manager, may, in writing, order omitted from the Work any item other than Major Items, which are found by the Project Engineer, or Project Manager, or Owner to be unnecessary to the Project and such omission shall not be a waiver of any condition of the Contract nor invalidate any of the provisions thereof. Major Items may be omitted by Supplemental Agreements. The Contractor will be paid for all Work done toward the completion of the item prior to such omission as provided in Section 7-5. 6.4 WORK NOT SPECIFIED BUT INCLUDED: Any work not specifically set forth in the Plans and Specifications but which may be fairly implied as included in the opinion of the Project Engineer, or Project Manager, shall be done by the Contractor without extra charge. 6.5 EXTRA WORK--FORCE ACCOUNT: When Work is necessary for the proper completion of the Project for which no quantities or prices were given in the Proposal or Contract, the same shall be called Extra Work and shall be performed by the Contractor when so directed in writing by the Project Engineer, or Project Manager. Extra Work shall be performed by the Contractor in accordance with these Specifications in a skillful and workmanlike manner and as may be directed by the Project Engineer, or Project Manager. Prices for Extra Work shall be itemized and covered by a Supplemental Agreement in accordance with paragraph 3.6 above. Any supplemental agreement must be approved by the Owner prior to the actual starting of such Work. Should the parties be unable to agree on unit prices for the Extra Work or if this method of pricing is impractical, the Project Engineer, or Project Manager, may instruct the Contractor to proceed with the Work by day labor or Force Account as hereinafter provided in Section 7-6. Claims for Extra Work not authorized in writing by the Project Engineer, or Project Manager, prior to the Work being done will be rejected and shall not be compensated for. Extra Work shall not include materials, labor or equipment which is incidental or appurtenant to the Work indicated on the Drawings and in the Specifications. Such Work shall be completed and paid for as part of the Work to which it is appurtenant. 6.6 UNAUTHORIZED WORK: Work performed beyond the lines and grades shown on the Contract Drawings, approved Work and Shop Drawings and Extra Work done without written authorization will be considered unauthorized Work and the Contractor will receive no compensation therefore. If required by the Owner, unauthorized Work shall be remedied, removed or replaced by the Contractor at Contractor's expense. Upon failure of the Contractor to remedy, remove or replace unauthorized Work, the Owner may take action as provided in Section 2.9 Inspection. Article 7. SUBCONTRACTORS, SUPPLIERS AND PERSONNEL 7.1 SUBCONTRACTORS: The Contractor may use the services of specialty Subcontractors on those parts of the Work which, under normal contracting practices, are performed by specialty Subcontractors. 7.1.1 No Subcontracting - The Contractor shall not sublet or subcontract any portion of the Work to be done under the Contract to any Subcontractor or Supplier not identified in the Proposal until approval of such action has been obtained from the Owner. The Owner may disapprove of a Subcontractor for any reason deemed appropriate by the Project Engineer, or Project Manager, including without limitation: a) Default on a contract within the last five (5) years; b) Default on a contract that required that a surety complete the contract under payment or performance bonds issued by the surety; c) Debarment within the last five (5) years by a public entity or any organization that has formal debarment proceedings; d) Significant or repeated violations of Federal Safety Regulations (OSHA); e) Failure to have the specific qualifications listed in the Contract Documents for the work that the Subcontractor will perform; f) Failure to have the required Owner or Colorado licenses to perform the work described in the subcontract; g) Failure to pay workers the proper wage and benefits or to pay suppliers or subcontractors with reasonable promptness within the last five (5) years; h) Conviction, plea of nolo contendere, entry into a formal agreement admitting guilt or entry of a plea of guilty or otherwise admitting culpability to criminal offenses of bribery, kickbacks, collusive proposing, bid-rigging, anti-trust, fraud, undue influence, theft, racketeering, extortion or any offense of a similar nature in connection with Subcontractor’s business, on Page 407 of 436 38 the part of Subcontractor’s principal owners, officers, or employees, within the last five (5) years; i) Failure to pay taxes or fees; j) Evidence that the Subcontractor was selected by the Contractor through the process of Proposal shopping, dishonesty or buyout. 7.1.2 Rejection of Subcontractor - Rejection or acceptance of any Subcontractor shall not create in that Subcontractor a right to any subcontract or the right to perform any portion of the Work, nor shall acceptance or rejection relieve the Contractor of its responsibilities for the work of any Subcontractor. 7.1.3 Contractor Supervision - The Contractor shall also supervise, direct and be responsible for all work performed by its Subcontractors, their agents and employees and other persons performing any of the Work under a contract with the Contractor, Subcontractors of any tier, or Suppliers of any tier. The Contractor is fully responsible to the Owner for the acts and omissions of its Subcontractors, and of persons either directly or indirectly employed by them. 7.1.4 Contractor Obligations - The action or omission of any Subcontractor in violation of this Contract or any subcontract will not relieve the Contractor from any obligation under this Contract or at law. 7.1.5 Contractual Relationship - Nothing contained in the Contract or any exercise of rights under this Contract creates any contractual relationship or privity of contract tween any Subcontractor and the Owner. 7.1.6 Binding to Terms of Contract - The Contractor shall put appropriate provisions (including the indemnity and insurance provisions) in all Subcontracts relative to the Work to bind Subcontractors to the terms of the Contract insofar as applicable to the work of Subcontractors (even if not specifically required here), and to give the Contractor the same power to terminate any Subcontractor that the Owner may exercise over the Contractor. 7.1.7 Guarantees - The Contractor shall specifically stipulate in all Subcontractor or Supplier contracts and purchase order forms for all materials and systems that the guarantee period begins with the date of Substantial Completion. The Contractor shall, during the course of the Work, specifically instruct Subcontractors and Suppliers that all written guarantees, that are due to be submitted to the Owner, shall indicate the initiation of the guarantee period as being the date of Substantial Completion. 7.1.8 Availability of Contract Documents - The Contractor shall make available to each proposed Subcontractor, before the execution of the subcontract, complete and accurate copies of the Contract Documents to which the Subcontractor will be bound, and, upon written request of the Subcontractor, identify to the Subcontractor terms and conditions of the proposed subcontract agreement which may be at variance with the Contract Documents. Subcontractors shall similarly make copies of applicable portions of such documents available to their respective proposed Subcontractors. 7.2 WORKFORCE: The Contractor shall assign an adequate number of qualified, competent workers to each task to complete the Work on schedule and in accordance with the Contract Documents. 7.2.1 Corrective Action Plan - If the Owner believes that the Work is not proceeding satisfactorily or may not be satisfactorily completed by the Completion Date, the Project Engineer, or Project Manager, may, by letter to the Contractor, require the Contractor to submit a corrective action plan identifying steps to be taken, at no additional cost to the Owner, to raise the rate of progress to an acceptable level. 7.2.2 Competent Personnel - Competent personnel with experience and skills adequate for the assigned tasks are an absolute necessity for job safety and for the performance of quality work. The Contractor and any Subcontractor shall employ only foremen and workers skilled in the Work requiring special qualifications. The Contractor shall reassign or remove from the Project all personnel who are requested to be reassigned or removed by the Project Engineer, or Project Manager, or who are incompetent, uncooperative, refuse to comply with safety requirements, or are otherwise unfit to perform the assigned task. No increase in Contract Time or Contract Price is authorized as a result of the Owner’s exercise of this section. 7.3 ILLEGAL ALIENS AS LABORERS: The Contractor shall not knowingly employ or contract with an illegal alien to perform work under this contract nor enter into a contract with a subcontractor that fails to certify to the contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this contract. 7.3.1 Confirmation of Eligibility - The Contractor shall confirm or attempt to confirm the employment eligibility of all employees who are newly hired for employment in the United States through participation in the E-Verify Program. If the Contractor is not accepted into the E-Verify Program prior to executing this contract for services, the Contractor shall apply to participate in the E-Verify Program every three months until the contractor is accepted or this contract has been completed, whichever occurs first. This paragraph Page 408 of 436 39 shall not be effective if the E-Verify Program is discontinued. 7.3.2 Certification - The Contractor certifies that, as of the Effective Date, it does not knowingly employ or contract with an illegal alien who will perform work under this Contract and that the Contractor will participate in the E-verify Program or Department Program as defined in C.R.S. § 8-17.5-37 in order to confirm the eligibility of all employees who are newly hired to perform work under this Contract. 7.3.3 Notification of Owner and Subcontractor - If the Contractor obtains actual knowledge that a Subcontractor performing work under this Contract knowingly employs or contracts with an illegal alien, the Contractor will:  Notify the Subcontractor and the Owner within three (3) days that the Contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and  Terminate the subcontract with the Subcontractor if within three (3) days of receiving the notice required pursuant to this subparagraph d the Subcontractor does not stop employing or contracting with the illegal alien; provided, however, that the Contractor will not terminate the contract with the Subcontractor if during such three (3) days the Subcontractor provides information to establish that the Subcontractor has not knowingly employed or contracted with an illegal alien. 7.3.4 Complying With Investigation - The contractor must comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to C.R.S. 8-17.5-102(2). 7.3.5 Violation. If the Contractor violates this Section, the Owner may terminate this Contract for breach of contract and the Contractor will be liable for actual and consequential damages to the Owner. 7.3.6 Verification of Lawful Presence (C.R.S. § 24-76.5-103). (a) If the Contractor is a natural person, including a sole proprietor with or without employees (i.e., not a corporation, limited liability company, partnership or similar entity), and is 18 years of age or older, the Contractor must: (a) complete an affidavit containing the information required by C.R.S. § 24-76.5-103(4)(b); and (b) attach a photocopy of the front and back of a valid form of identification as required by C.R.S. § 24-76.5-103(4)(a). (b) If the Contractor executes the affidavit stating that he/she is an alien lawfully present in the United States, the Owner will verify his/her lawful presence through the federal systematic alien verification or entitlement program, known as the “SAVE Program,” operated by the U.S. Department of Homeland Security (“DHS”) or a successor program designated by DHS. If the Owner determines through the verification process that the Contractor is an alien not lawfully present in the United States, the Owner will terminate this Agreement without further obligation to Contractor. 7.4 PERSONNEL & CIVIL RIGHTS 7.4.1 Colorado Labor (C.R.S. § 8-17-101) - At least eighty percent (80%) of each type or class of labor employed by the Contractor and any Subcontractors to perform the Work shall be persons who, at time of employment, are residents of the State of Colorado, without discrimination as to race, color, creed, gender or sex, age, religion, national origin, veteran’s status or religion, except when minimum age is a bona fide occupational qualification. The Project Engineer, or Project Manager, if requested in writing by the Contractor and approved by the Project Engineer, or Project Manager, in writing, may waive this requirement in accordance with C.R.S. § 8-17-101. 7.4.2 Anti-Discrimination - While engaged in the performance of the Work, Contractor shall maintain employment practices consistent with the Colorado Antidiscrimination Act, C.R.S. § 24-34-301 through § 24-34-804, as amended. The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The Contractor will take affirmative action to ensure applicants are employed, and employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. 7.4.3 Civil Rights - In compliance with the Civil Rights Act of 1964, coupled with the Colorado Governor’s Executive Order dated July 6, 1972, Contractor, for itself and its assignees and successors in interest, agree as follows: (a) When applicable, the Contractor shall comply with the Regulations of the Department of Page 409 of 436 40 Transportation relative to nondiscrimination in Federally assisted programs of the Department of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the “Regulations”), which are herein incorporated by reference and made a part of this Contract. Contractor shall not participate either directly or indirectly in discrimination prohibited by Section 21.5 of the Regulations including employment practices when the Contract covers a program set forth in Appendix “C” of the Regulations. (b) The Contractor, with regard to the Work performed by it after award and prior to completion of the Work, shall not discriminate on the grounds of race, creed, color, gender or sex, age, religion, veteran status, national origin or ancestry in the selection and retention of Subcontractors, including procurements of materials and leases of equipment. (c) In all solicitations either by competitive Bid or negotiation made by Contractor for work to be performed under a subcontract, including procurements of materials or equipment, each potential Subcontractor or Supplier shall be notified by Contractor of Contractor’s obligations under this Contract and the regulations related to nondiscrimination on the grounds of race, creed, color, gender or sex, age, religion, veteran status, national origin or ancestry. (d) The Contractor shall take all affirmative actions necessary and appropriate to implement, not only the letter but also the spirit, of the policy of equality of opportunity as enunciated in the Constitution and the laws of the State of Colorado and as construed by the courts to prevent discrimination because of race, creed, color, gender or sex, age, religion, handicap, veterans status, national origin or ancestry. (e) The Contractor shall include the provisions of these subsections 1 through 5 in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, orders or instructions issued pursuant thereto. The Contractor shall take such action with respect to any subcontract or procurement as the Owner may direct as a means of enforcing such provisions; provided, however, that in the event the Contractor becomes involved in, or is threatened with, litigation with a Subcontractor or supplier as a result of such direction, the Contractor may request the Owner to enter into such litigation to protect the interest(s) of the Owner. 7.4.4 Americans with Disabilities Act - The Owner makes every attempt to comply with the Americans with Disabilities Act and requires all contractors to be aware of this law and to report immediately to the Project Engineer, or Project Manager, any requests or complaints based upon the Americans with Disabilities Act. This requirement applies to persons or groups who have identified themselves as disabled, or as someone with whom they associate as disabled, and who require a special accommodation. Article 8. INSPECTIONS; CORRECTIONS OF DEFECTS 8.1 DEFECTIVE WORK AND MATERIALS: Material and workmanship not conforming to the requirements of the Contract are deemed defective. The Contractor shall bear all costs of investigating and correcting such defective Work and materials, which includes design efforts necessary to correct such Work. 8.1.1 Determination of Defects - Whether or not the Work is defective will be determined by comparing it to the Contract Drawings, Specifications, accepted Shop Drawings and manufacturer’s literature and further measuring it against the standard of quality implied by the Contractor’s warranty. Also, should the appearance and performance of any element of the Work fail to conform to standards of the trade for such Work, that Work may be declared defective. 8.1.2 Repair and Removal of Defects - Defects discovered by any inspection process or testing, or otherwise made apparent during the Work, shall be repaired, removed, or replaced by the Contractor, at no cost to the Owner, as identified. The Owner shall have the right to charge the Contractor for its costs of re-inspecting the Work after the defective Work is corrected and any costs of verifying or determining the existence of latent defects 8.1.3 Failure to Repair or Remove Defects - If the Contractor fails to replace rejected materials or Work within ten (10) days after receipt of written notice, the Owner may replace or correct them and charge the cost to the Contractor and may terminate the right of the Contractor to proceed. 8.1.4 Failure to Detect Defects - Failure to detect previously installed defective materials or workmanship shall not impair the Owner’s right to receive the completed Work, which is free of defects and meets all of the requirements of the Contract Documents. Nothing in this section shall limit the Owner’s right to seek recovery for latent defects that are not observable until after any warranty or guaranty periods have run. 8.2 SUBSTITUTED PERFORMANCE: If the Contractor’s failure of exact performance does not appear to the Page 410 of 436 41 Owner to be deliberate or willful and if the Owner concludes that less than exact performance in some minor part of the Work will not result in a decrease in quality in the entire Work, the Owner may, at its sole option, accept substituted performance. Should the Owner accept substituted performance, the cost of the Work shall be reduced by the sum of money that the Owner determines to be a reasonable consideration for less than exact performance and the Owner may, at its discretion, require separate warranties for any substituted performance. 8.3 AUTHORITY AND DUTIES OF INSPECTORS: All Work shall be subject to inspection and testing by the Project Engineer, or Project Manager, Owner or their agent at all reasonable times and at all places prior to acceptance. Inspectors, employed by the Owner, are authorized to inspect all Work done and all material furnished. Such inspection may extend to all of any part of the Work and to the preparation, fabrication, or manufacture of the materials to be used. The Inspector is not authorized to revoke, alter, or waive any requirements of the Plans and Specifications. The Inspector is authorized to call to the attention of the Contractor any failure of the Work or materials to conform to the Specifications and Contract Documents. 8.3.1 Inspector Authority - The Inspector shall have the authority to reject materials or suspend the Work until any question at issue can be referred to and decided by the Project Engineer, or Project Manager. If the Contractor refuses to suspend operations on verbal order, the Inspector shall issue a written order giving the reason for shutting down the Work. After placing the order in the hands of the manager in charge, the Inspector shall immediately leave the job. Work done during the absence of the Inspector will not be accepted nor paid for. 8.3.2 Contractor Obligations - Inspections by the Project Engineer, or Project Manager, or the Owner, or any of their representatives, or others shall not relieve the Contractor from his obligations to perform the Work in accordance with the requirements of the Contract Documents and to also inspect his own Work. 8.3.3 Limitations of Inspector - The Inspector shall in no case act as foreman or perform other duties for the Contractor nor interfere with the management of the Work by the latter. Any advice which the Inspector may give the Contractor shall in no way be construed as binding to the Project Engineer, or Project Manager, in any way, or releasing the Contractor from fulfilling any of the terms of the Contract. 8.4 INSPECTION: Drawings and specifications defining the Work were prepared on the basis of interpretation by design professionals of information derived from investigations of the Work site. Such information and data are subject to sampling errors, and the interpretation of the information and data depends to a degree on the judgment of the design professional. Information about the degree of difficulty of the Work to be done cannot totally be derived from either the Drawings or Specifications or from the Project Engineer, or Project Manager. The Contractor shall not be entitled to an adjustment to the Contract Time or Contract Price for any condition that was or would have been evident at the time of a pre-Proposal site inspection. By executing the Contract, the Contractor represents that they have visited the site if and to the extent it believed necessary, familiarized itself with the location and conditions under which the Work is to be performed, and correlated its observations with the requirements of the Contract Documents. 8.4.1 Duties of Contractor - Contractor shall promptly, before such conditions are further disturbed, notify the Project Engineer, or Project Manager, in writing of: • Subsurface or latent physical conditions at the Work site differing materially from those indicated in the Contract; or • Unknown physical conditions at the Work site, of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract. 8.4.2 Duties of the Owner - Upon receipt of written notification from the Contractor of alleged differing site conditions, the Owner shall promptly investigate the conditions. If the Owner finds that the conditions materially differ and could not have been discovered, or reasonably inferred, from the Contract Documents or a thorough inspection of the Work site by the Contractor, and such conditions cause an increase or decrease in the Contractor’s cost of or the time required for performance of any related part of the Work under the Contract, an adjustment to the Contract Time or Contract Price, or both, may be made through a Change Order. 8.4.3 All Work Subject to Inspection - Until final payment, all parts of the work may be subject to inspection and testing by Owner or its designated representatives. Contractor may furnish, at its own expense, all reasonable access, assistance, and facilities required by Owner for such inspection and testing. The Contractor may furnish the Project Engineer, or Project Manager, with every reasonable facility for ascertaining whether or not the Work performed and materials used are in accordance with the requirements and intent of the Specifications and Contract. In the event of night Work, the Contractor may Page 411 of 436 42 furnish proper lighting to adequately perform and inspect the Work being performed. If the Project Engineer, or Project Manager, requests it, the Contractor may, at any time before acceptance of the Work, remove or uncover such portion of the finished Work as may be directed. After examination, the Contractor may restore said portions of the Work to the standard required by the Specifications. Should the Work thus exposed or examined prove acceptable, the uncovering, or removing, and the replacing of the coverage or making good of the parts removed, may be paid for as Extra Work; but should the Work so exposed or examined prove unacceptable, the uncovering, or removing, and the replacing of the covering or making good of the parts removed, shall be at the Contractor's expense. Any Work done or materials used by the Contractor without suitable supervision or inspection by the Project Engineer, or Project Manager, or his authorized representative may be ordered removed and replaced at the Contractor's expense. 8.4.4 Prompt Remedy - If Contractor does not promptly replace rejected material or correct rejected workmanship the Owner may: (a) by separate Contract or otherwise, replace such material or correct such workmanship and charge the cost thereof to the Contractor, or (b) terminate the Contractor's right to proceed in accordance with this Agreement pursuant to Section 6.9. Such inspection and test is for the sole benefit of Owner and may not relieve Contractor of the responsibility of providing quality control measures to assure that the Work strictly complies with the Contract. No inspection or test by the Owner, Project Engineer, or Project Manager, or their agent may be construed as constituting or implying acceptance. Inspection or test may not relieve Contractor of responsibility for damage to or loss of the material prior to acceptance, nor in any way affect the continuing rights of the Owner after acceptance of the completed Work. 8.4.5 Work Outside Normal Work Day - Any Work outside the normal five (5) day, forty (40) hour week may require the Project Engineer, or Project Manager, or Inspector on the job. All inspection so required shall be done at the Contractor's expense and the cost thereof may be deducted from the final payment. Overtime inspection may be done by the Owner at the Contractor's expense at $50.00 per hour. The payment by the Contractor of overtime inspection fees may not relieve the Contractor from the liquidated damages provisions as specified in Section 6-8 herein. 8.4.6 Change Order - If the Contractor has not fully complied with the notice and submittal requirements of this section or any part of the General Conditions pertaining to Change Orders, with particular attention to not disturbing the site prior to allowing the Owner to investigate the conditions, the Contractor shall be deemed to have waived its right to assert a claim for differing site conditions. 8.4.7 No Claim After Final Payment - No claim will be allowed under this section if Final Payment has been made. 8.5 REMOVAL OF DEFECTIVE AND UNAUTHORIZED WORK: All Work which has been rejected or condemned by Owner or Project Engineer, or Project Manager, shall be repaired, or if it cannot be satisfactorily repaired, be removed and replaced at the Contractor's expense. Work done without lines and grades having been given, Work done beyond the lines and grades shown on the Plans, or as given, except as herein provided, Work done without giving timely notice to the Project Engineer, or Project Manager, so the Project Engineer, or Project Manager, may, if he/she wishes, be present to observe the Work in progress, or any Extra or unclassified Work done without written authority and prior Agreement in writing as to prices, will be done at the Contractor's risk and will be considered unauthorized and at the option of the Project Engineer, or Project Manager, may not be measured and paid for and may be ordered removed and replaced at the Contractor's expense. Upon the failure of the Contractor to satisfactorily repair or to remove and replace, if so directed, rejected, unauthorized, or condemned Work immediately after receiving formal notice from the Project Engineer, or Project Manager, the Owner may, at its sole option, recover for such defective Work on the Contractor's bond or by action in a court having proper jurisdiction over such matters, or may employ labor and equipment and satisfactorily repair or remove and replace such Work and charge the cost of the same to the Contractor, which cost will be deducted from any money due him/her. 8.6 GEOTECHNICAL AND OTHER DESIGN PROFESSIONAL REPORTS, INVESTIGATIONS & TESTS: The Contractor acknowledges that certain soils reports, borings, and other geotechnical data, more particularly described or referenced in the Specifications of the Contract, have been made available for inspection and review. The borings were made for the use of the Owner in the design of the Project and are not intended to be interpreted for use in temporary construction facilities designed by the Contractor. The Owner in no way warrants the accuracy or reliability of said borings and other geotechnical data or of the data, information or interpretations contained in said soils reports, and is not responsible for any deduction, interpretation, or conclusion drawn therefrom by the Contractor. Said soil reports may contain interpretations by design professionals of borings and geotechnical data obtained at the Work site. Such borings and geotechnical data are subject to sampling errors, and any interpretations or conclusions based on such borings and data depend to a degree on the judgment of the design professionals. Page 412 of 436 43 The Contractor agrees that it will make no claims against the Owner if, in performing the Work, it finds that the actual conditions encountered do not conform to those indicated by said soil reports, borings and other geotechnical data, or those reasonably inferred therefrom or reasonably discoverable by a thorough inspection of the site by the Contractor. Article 9. PROTECTION OF PERSONS, PROPERTY AND ENVIRONMENT 9.1 PROTECTION OF PERSONS: The Contractor is responsible for the health and safety of all persons on or at the Work site and shall take all necessary and reasonable precautions and actions to protect all such persons from injury, death, or loss. 9.1.1 Safety Working Conditions - The Contractor and any Subcontractor shall not require any laborer, mechanic or other person employed in performance of the Work to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous to health or safety. The Contractor and all Subcontractors shall comply with all applicable safety rules and regulations adopted by the United States Department of Labor Occupational Safety and Health Administration (OSHA), the Industrial Commission of the State of Colorado or the City of Englewood, whichever is most restrictive. The Owner assumes no duty to ensure that the Contractor follows the safety regulations issued by OSHA or the State of Colorado. 9.1.2 Protective Devices and Precautions - The Contractor shall provide all necessary protective devices and safety precautions. Such devices and precautions may include but are not limited to: posting of danger signs and warnings against hazards such as, but not limited to, hoists, well holes, elevator hatchways, scaffolding, openings, stairways, trip and fall hazards and falling materials; placement of warning flares; equipment back-up alarms; installation of barricades; promulgation and application of safety regulations and employment of safety personnel and guards. Signs will not be considered to be an adequate substitute for physical protective barriers. The costs of all protective devices and the planning and implementing of safety precautions are considered to be included in the Unit Prices, even if not specified. If, in the opinion of the Project Engineer, or Project Manager, the Contractor has not supplied necessary and adequate barricades, warnings, or other safety devices, then the Owner may order additional devices and deduct the cost from the Contractor's payment. By taking such action, the Owner assumes no liability for the adequacy of such barricades, warnings or other safety devices. 9.1.3 Underground Work - For operations involving trenching, excavation or any other underground construction, the Contractor’s attention is specifically directed to and its work shall conform to the latest revision of the Construction Safety and Health Regulations, Part P Subparagraph 1926.6013-6016 by OSHA, as amended. 9.1.4 Protection of the Public - The Contractor and all Subcontractors shall always, whether or not so specifically directed by the Project Engineer, or Project Manager, take necessary precautions to ensure the protection of the public. The Contractor shall furnish, erect, and maintain at its own expense all necessary precautions for the protection of the Work and safety of the public through and around its construction operations. 9.1.5 Subcontractor - The Contractor shall make the provisions of this section a condition of each contract with any Subcontractor. 9.2 PROTECTION OF PROPERTY: The Contractor shall continuously take all reasonable precautions to protect from damage, injury or loss, all or any part of the Work and all or any part of materials or equipment to be incorporated in the Work, whether in storage on or off the Work site, under the care, custody, control of the Contractor or any Subcontractor or Supplier. The Contractor shall repair or replace at its expense any such damage, injury or loss, except such as may be directly due to error in the Contract or caused by agents or employees of the Owner. The Contractor shall provide and maintain at its expense all passageways, barricades, guard fences, lights, and other protection facilities required by any regulatory agency or public authority or local conditions. The Contractor is responsible for protection of all public and private property on and adjacent to any site of the Work. The Contractor shall use every precaution necessary to prevent damage to curbs, sidewalks, driveways, trees, shrubs, sod, mailboxes, fences, and other private and public improvements. The Contractor shall protect carefully from disturbance or damage all land monuments and property markers until an authorized agent has witnessed or otherwise referenced their locations, and shall not remove them until directed. Page 413 of 436 44 9.3 PROTECTION OF HISTORICAL SITES: When the Contractor’s operations encounter remains of prehistoric peoples, dwelling sites or artifacts of historical, archeological, or paleo-logical significance, the Contractor shall temporarily discontinue such operations and immediately advise the Project Engineer, or Project Manager. The Project Engineer, or Project Manager, will contact archeological authorities to determine the disposition of the items in question. When directed, the Contractor shall excavate the site in such a manner as to preserve the artifacts encountered and remove them for delivery to the custody of the proper authorities. Such excavation is considered, and paid for, as extra Work. 9.4 RESPONSIBILITY TO REPAIR: When any direct or indirect damage or injury is done to any public or private property or utility by or on account of any act, omission, neglect or misconduct in the execution of the Work, the Contractor shall restore the damaged property at its own expense to a condition equal to or better than that existing before such damage or injury. If any existing property is damaged in the Work as a result of Contractor’s non-performance, the Contractor shall immediately notify the property owner. The Contractor shall not attempt to make repairs unless authorized in writing by the property owner or directed by the Project Engineer, or Project Manager. Written authorization from the owner to make repairs must be so worded as to save the Owner harmless from any responsibility whatsoever relative to the sufficiency of the repairs. The Contractor shall give the Project Engineer, or Project Manager, a copy of the written authorization to make repairs. The Contractor shall replace any materials and equipment lost, stolen, damaged or otherwise rendered useless during the performance of Work on the Project. At the Contractor’s cost, the Owner may undertake any such repair or replacement required by this section when the Contractor fails to do so within a reasonable time. The Owner may deduct any such cost from any payment due the Contract or may recover such costs from the Contractor or the Surety. 9.5 TRAFFIC CONTROL: Unless the Contract specifically provides for the closing to traffic of any local road or highway while construction is in progress, such road or highway shall be kept open to all traffic by the Contractor. The Contractor shall also provide and maintain in a safe condition temporary approaches, crossings or intersections with roads and highways. The Contractor shall bear all expense of maintaining traffic over the section of road affected by the Work to be done under this Contract, and of constructing and maintaining such approaches, crossings, intersections and any accessory features without direct compensation, except as otherwise provided. The Contractor shall arrange Work to disrupt traffic as little as possible. All traffic Control Devices used shall conform to the latest edition of the Manual of Uniform Traffic Control Devices (MUTCD). Except as otherwise permitted, two way traffic shall be maintained at all times in public roadways. The Contractor shall provide, erect and maintain all necessary barricades, signs, danger signals and lights for the protection of the Work and the safety of the public. All barricades, signs and obstructions erected by the Contractor shall be illuminated at night and all devices for this purpose shall be kept illuminated from sunset to sunrise. The Contractor shall be held responsible for all damage to the Work due to failure of barricades, signs, lights and watchman to protect it, and whenever evidence of such damage is found prior to acceptance, the Project Engineer, or Project Manager, may order the damaged portion immediately removed and replaced by the Contractor without cost to the Owner if, in the opinion of the Project Engineer, or Project Manager, such action is justified. The Contractor's responsibility for the maintenance of barricades, signs and lights shall not cease until the Project has been accepted. 9.5.1 Closure of Street or Alley - No street or alley shall be closed to the public by the Contractor except as authorized by the City Traffic Engineer and in accordance with procedures outlined herein. Whenever, in the prosecution of the work, the Contractor finds it necessary to close a street to traffic, he/she shall advise the Police and Fire Departments forty-eight (48) hours in advance of the time when the street will require closing. The forty-eight (48) hour notice will be required in all cases involving the normal prosecution of the work and convenience of the Contractor. Twenty-four (24) hours prior to commencement of work, the Contractor shall furnish and install approved “No Parking” signs, giving day of the week; i.e. “No Parking in this block on Thursday.” At time of posting verbal notice of intent shall be given to occupants of premises involved. In cases of emergency, involving conditions over which the Contractor has no control, the street may be closed. In these cases, the Contractor is required to immediately notify the Police and Fire Departments and the City Traffic Engineer. 9.5.2 Detours - Wherever streets or alleys are closed as provide herein, it will be the sole responsibility of the Contractor to adequately mark and light the detours as determined by the Contractor and the City Traffic Engineer after consultation with the Police and Fire Departments, City Traffic Engineer, and in accordance with standard details indicated on plans for this project. The Contractor, at its cost, shall furnish and maintain all necessary signs, barricades, lights, and flaggers necessary to control traffic and provide for safety of the public, all in compliance with the MUTCD with subsequent revisions and additions, and to the satisfaction of the Public Works Director. No constructions signs shall be placed on sidewalks unless Page 414 of 436 45 construction is actually taking place on the sidewalk. During evening hours and when not in use, all signs shall be turned away from traffic and moved at least eight (8) feet away from the edge of the nearest traveled way. 9.5.3 Permission for Detours - Wherever detours are required over areas other than on established City streets, it shall be the responsibility of the Contractor to secure all necessary permission from the property owners involved, prior to establishing such detours. Traffic shall not be routed over such detour until it has been bladed and shaped in such a way as to provide a reasonably safe and convenient roadway to the traveling public. Full provision shall be made to the Contractor for minimizing inconvenience from dust. 9.5.4 Safe and Convenient Roadway - Where traffic is maintained along the street or alley under construction, particular care shall be used to shape and maintain the roadbed so that a safe and convenient roadway is available to the traveling public. Ramps from undisturbed streets into excavated areas shall be maintained for traffic on gradual grades and in no case shall a ramp be steeper than a 6:1 slope. The Contractor shall make full provisions for minimizing inconvenience from dust. Marking and lighting the route shall be in accordance with standard details indicated on the plans for the district. During periods when actual construction is not in progress, streets shall be properly maintained and dust control measures shall be employed. 9.5.5 Traffic Control Plan - At least seven (7) days before starting any Work in the City right-of-way, the Contractor shall submit a detailed traffic control plan for review by the City of Englewood Public Works Department, with a copy to the Police Department. The approval shall establish the requirements for closures related to the number of lanes and time of day lanes or streets may be closed in accordance with the MUTCD and other applicable criteria or regulations. The Traffic Control Plan (TC Plan) shall include the name of the Contractor, the name and phone number of the person responsible for the traffic control, the date for beginning and ending construction activity and hours of operation expected. The TC Plan should show the widths of streets involved, traffic lanes, the size and location of the Work area with distances from the curb, distance to the nearest intersection, detours, parking areas, access to private property, and the type and location of traffic control devices. No changes to the TC Plan shall be permitted without prior, written approval by the Public Works Director. The Contractor shall create its Traffic Control plans in concurrence with any Traffic Control requirements that may be specifically stated in the Special Conditions. 9.5.6 Need for Police Officer - Whenever a police officer is necessary for traffic control, the Contractor shall hire and pay a uniformed off-duty police officer with authority in the City to direct traffic. The police department will determine the rate of pay for the officers. 9.5.7 Incidents - The Owner may impose a price reduction charge for any recurrence of an incident under the TC Plan, after notification by the Project Engineer, or Project Manager, according to the following schedule. The price reduction charge will not be considered a penalty, but will be a price reduction for failure to perform traffic control in compliance with the Contract. For purposes of this section, an “incident” is any violation of the TC Plan lasting up to thirty (30) minutes; each successive or cumulative 30-minute period in violation of the TC Plan will be deemed a separate incident, as determined by the Project Engineer, or Project Manager. Incident Price Reduction Charge First None – Notice from Project Engineer, or Project Manager Second $150.00 Third $300.00 Fourth $600.00 Subsequent $1,200.00 9.6 PROTECTION OF STREET SIGNS, TRAFFIC SIGNS and SIGNALS: Street signs, traffic signs, signals and other traffic control devices erected by the City for information and to safeguard traffic must be protected by the Contractor. Where it is necessary to disturb or remove any of these items, the Contractor shall secure approval of the Traffic Engineer prior to any such work, this approval to be based on concurrence and requirements from the Traffic Engineer. 9.7 UTILITIES: The Contractor's attention is directed to the importance of protecting all public utilities encountered on all projects. Such utilities may include, but are not limited to: telephone, telegraph and power lines, water lines, sewer lines, gas lines, railroad tracks, and other overhead and underground utilities, cable television lines and facilities. Before any excavation is begun in the vicinity of water lines, railroad tracks or structures, sewer lines, cable television lines, gas lines or telephone conduits, each utility company concerned must be notified in Page 415 of 436 46 advance of such excavation, and such excavation shall not be made until an authorized representative of the utility company concerned is on the ground and has designated the location of their facilities. The Contractor shall support, and protect from injury, until completion of the Work any existing power lines, telephone lines, water mains, gas mains, sewers, storm sewers, cables, conduits, ditches, curbs, walks, pavements, driveways, and other structures in the vicinity of the Work that are not authorized to be removed. 9.7.1 Utility Coordination - The Contractor shall schedule and coordinate all Work with any utilities. The Contractor shall cooperate with utility owners (including electrical, gas, communication, water, sewer and railroad) to mitigate damage (including relocation or removal) whenever the Contractor’s work affects their utilities. The Contractor shall seek to expedite the progress of such work and minimize duplication of work and disruption of services. 9.7.2 Minimize Disruption - The Contractor shall conduct its operations in such a manner as to minimize the inconvenience to the public due to disconnected utilities. The Contractor shall not disconnect any utility without prior approval of the affected utility and the Project Engineer, or Project Manager. Such utility shall then not be disconnected before 9:00 A.M. and service shall be restored by 4:00 P.M. of the same day. If the Contractor’s operations require or cause utility service to be disconnected beyond the time limits stated above, the Contractor shall make arrangements suitable to the Project Engineer, or Project Manager, to provide temporary utility service. Such temporary service shall be at Contractor’s expense. The Contractor shall notify all affected properties regarding any utility disconnection, forty-eight (48) hours prior to the disconnection. 9.7.3 Delays - The Owner will not be responsible or liable for any delay or other impact to the Work caused by the acts or omissions of any utility or related agency. 9.8 COORDINATION WITH ENGLEWOOD UTILITIES: The Contractor shall always coordinate its Work with the South Platte Water Renewal Partners (SPWRP) and the Englewood Utilities Department (EUD). If it becomes necessary to close portions of any water or sewer system due to construction operations, the Contractor will provide at least seventy-two (72) hours prior notice to SPWRP and EUD. SPWRP and EUD shall have authority to dictate requirements of the closure. It is the Contractor’s responsibility to ensure continuity of the utilities. 9.9 NOTIFICATION OF AFFECTED UTILITY AND PROPERTY OWNERS: The Contractor shall not excavate without first notifying all owners, operators, or association of owners and operators having underground facilities in the area of such excavation. Notice may be given in person, by telephone or in writing. Notice to an association is notice to each member of the association. The Contractor shall contact the Utility Notification Center of Colorado before the start of any excavating. The Contractor shall give such notice of the commencement, extent, and duration of the excavation work at least forty- eight (48) hours before beginning Work affecting the area. If the Project affects fences, landscaping, mailboxes, driveways or other improvements, the Contractor shall notify the affected property owners or occupants IN WRITING at least forty-eight (48) hours before beginning Work. The Contractor shall cooperate with the owners or occupants to reduce inconvenience where reasonably possible. 9.10 POLLUTION CONTROL: The Contractor shall comply with all applicable Federal, State and City ordinances, laws, orders, and regulations concerning the control, prevention, and abatement of water pollution and air pollution in all operations pertaining to the Contract whether on right-of-way provided by the City or elsewhere. (See Article 17, below). 9.10.1 Pollution Prevention - The Contractor shall use construction methods that prevent release, entrance or accidental spillage of solid matter, contaminants, debris, and other objectionable pollutants and wastes including, but not restricted to refuse, garbage, cement, concrete, sewage effluent, industrial waste, radioactive substances, oil and other petroleum products, aggregate processing tailings, mineral salts, and thermal pollution. Non-regulated solid wastes shall be disposed of by methods approved under applicable laws and regulations, including, the Resource Conservation and Recovery Act (RCRA), Subtitle D, as administered by Colorado and local Health Departments and the EPA. 9.10.2 Contaminated and Hazardous Materials - Contaminated and hazardous materials are regulated by RCRA, Subtitles C and D. The Contractor shall notify the Colorado Department of Public Health and Environment, local health departments, and local fire departments, and the Owner if suspect materials are encountered. 9.10.3 Prevention of Atmospheric Discharges - The Contractor shall utilize methods and devices that are reasonably available to control, prevent, and otherwise minimize atmospheric emissions or discharges of air contaminants including dust in its construction activities and operation of equipment. Page 416 of 436 47 9.10.4 Prevention of Dust Emission - The Contractor shall not emit dust into the atmosphere during any operations, including but not limited to: grading; excavating; manufacturing, handling or storing of aggregates; trenching; or cement or pozzolans. The Contractor shall use the necessary methods and equipment to collect, deposit, and prevent dust from its operations from damaging crops, orchards, fields or dwellings or causing a nuisance to persons. The Contractor is liable for any damage resulting from dust. 9.10.5 Excessive Exhaust Gases - The Contractor may not operate equipment and vehicles with excessive emission of exhaust gases due to improper mechanical adjustments, or other inefficient operating conditions, until repairs or adjustments are made. 9.10.6 Burning - Burning trash, rubbish, trees, brush or other combustible construction materials is not permitted unless the Contractor has obtained a valid burning permit issued by the Tri-County District Health Department or successor agency, and the local fire department. Any such burning shall be conducted in accordance with permit requirements. 9.10.7 De-Watering - De-watering for structure foundations or earthwork operations adjacent to or encroaching on lakes, streams or watercourses shall be done in a manner which prevents muddy water and eroded materials from entering the lakes, streams or watercourses, by construction of intercepting ditches, bypass channels, barriers, settling ponds or by other approved means. Excavated materials may not be deposited or stored in or alongside lakes or watercourses where they can be washed away by high water or storm runoff. 9.10.8 Wastewater Runoff - The Contractor will not allow wastewater from aggregate processing, concrete batching or other construction operations to enter lakes, streams, watercourses or other surface waters without turbidity control methods such as settling ponds, gravel-filter entrapment dikes, approved flocculation processes that are not harmful to fish, recirculation systems for washing of aggregates or other approved methods. Any wastewaters discharged into surface waters shall conform to applicable discharge standards of any agency having jurisdiction over the discharge, including the Colorado Department of Public Health and Environment and any federal agency. 9.11 PUBLIC CONVENIENCE AND SAFETY: The Contractor shall fully comply with all applicable Federal, State and local laws governing safety. He shall provide all safeguards, safety devices and protective equipment and take any other needed actions on his own responsibility reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the Work. Materials stored upon the site shall be so placed and the Work shall, at all times, be so conducted as to cause no greater obstruction to traffic than is considered necessary by the Project Engineer, or Project Manager. The Contractor shall give to the Project Engineer, or Project Manager, full information in advance as to his plans for carrying out any part of the work. If at any time before the beginning or during the progress of the work, any part of the Contractor’s plant or equipment or any of his methods of executing the work appear to the Project Engineer, or Project Manager, to be unsafe, inefficient, or inadequate to insure the required quality, rate of progress or safety of the work, he may order the Contractor to increase or improve his facilities or methods, and the Contractor shall promptly comply with such orders; but neither compliance with such orders nor failure of the Project Engineer, or Project Manager, to issue such orders shall relieve the Contractor from his obligation to secure the degree of safety, the quality or work, and the rate of progress required by this Contract. The approval by the Project Engineer, or Project Manager, of any plan or method of work proposed by the Contractor shall not be considered as an assumption by the City, or any officer, agent or employee thereof, of a risk or liability, and the Contractor shall have no claim under this Contract for the failure or inefficiency of any plan or method so approved. Such approval shall be considered and shall mean that the Project Engineer, or Project Manager, has no objection to the Contractor’s use or adoption, at his own risk and responsibility, of the plan or method so proposed by the Contractor. 9.12 USE OF EXPLOSIVES: When the use of explosives is necessary for the prosecution of the Work, the Contractor shall use the utmost care so as not to endanger life or property, and whenever directed by the Project Engineer, or Project Manager, the number and size of the charges shall be reduced. The Contractor shall notify the proper representatives of any public services corporation, the Owner, any company, or any individual at least ten (10) working days in advance of any blasting which may damage his or their property on, along, or adjacent to the site. The Contractor shall comply with the requirements of Title 9, Article 7 of the Colorado Revised Statutes, as amended, titled "Explosive Permits". The Contractor shall also be required, at a minimum, to notify the Denver Fire Department and the Englewood Police Department, the City and the surrounding properties. All explosives shall be stored in a secure manner and all storage places shall be marked clearly "DANGEROUS EXPLOSIVES," and shall be in care of competent watchmen at all times. 9.13 RESTORATION OF PROPERTY: The Contractor shall not enter upon private property for any purpose without first obtaining permission, and he shall be responsible for the preservation of all public and private property, sod, trees, Page 417 of 436 48 fences, monuments, underground structures, etc., on and adjacent to the site and shall use every precaution necessary to prevent damage or injury thereto. He shall protect carefully, from disturbance or damage, all land monuments and property markers until an authorized agent has witnessed or otherwise referenced their location, and shall not remove them until directed. 9.13.1 Responsibility for Damage - Contractor shall be responsible for all damage or injury to public or private property of any character resulting from any act, omission, neglect or misconduct in his manner, or method of executing said Work, or due to his non- execution of said Work, or at any time due to defective Work or materials, and said responsibility shall not be released until the Work shall have been completed and accepted. 9.13.2 Property Restoration - When or where any direct or indirect damage or injury is done to public or private property by or on account of any act, omission, neglect or misconduct in the execution of the Work, or in consequence of the non-execution thereof on the part of the Contractor, he shall restore, at his own expense, such property to a condition similar or equal to that existing before such damage or injury was done by repairing, rebuilding, or otherwise restoring, as may be directed, or he shall make good such damage or injury in an acceptable manner. In case of the failure on the part of the Contractor to restore such property or to have started action to make good such damage or injury, the Owner may upon forty- eight (48) hours of notice, proceed to repair, rebuild or otherwise restore such property as may be deemed necessary and the cost thereof will be deducted from any moneys due or which may become due the Contractor under the Contract or prosecuted as a claim against the Contractor's Surety Bond. 9.13.3 Insurance - The cost of insurance for damages due to Contractor's operation or cost of protecting utilities where required to permit construction under this Contract shall be included in the original Contract prices for the Project. Article 10. PERMITS AND LICENSES; COMPLIANCE WITH CURRENT LAWS 10.1 COMPLIANCE WITH LAWS, LICENSES AND PERMITS: The Contractor, shall at all times, observe and comply with all Federal, State and local laws, codes, ordinances, and regulations, which pertain to and affect the conduct of the Work, and the Contractor and his Surety shall indemnify and save harmless the Owner and all its officers, agents, employees, or any of their heirs, successors or assigns against any claim, judgment, demand, costs, liability or expenses, including, but not limited to, attorney's fees and costs of suit arising from or based on the violation of any such law, ordinance, regulations, order, or decree, whether such claim, judgment, demand, costs, liability or expenses arises from actions by himself, his employees, or agents or subcontractors.. 10.1.1 Adherence to City Policies - The Contractor and its employees, agents and Subcontractors, while performing the Work or while on City property for any reason during the Term, shall adhere to the City’s policies applicable to City employees regarding drugs, alcohol and workplace violence. 10.1.2 Licenses and Permits - The Contractor will obtain, at its cost, all licenses and permits required to do the Work by the City, county, state, federal, or other applicable law or regulation. Any costs incurred for these permits and licenses must be included in the unit costs set forth in the Proposal for the Work. A Subcontractor shall also have the proper permits applicable to the Work to be performed by the Subcontractor. 10.1.3 Contract Law - This Contract shall be governed by, construed and enforced under the laws of the State of Colorado, excluding statutes related to conflict of laws between different jurisdictions. 10.1.4 Contractor Liability - Nothing contained herein shall be deemed to create liability for the contractor for any design defects not managed by the Contractor. 10.1.5 Colorado State Statute: If this project is for a public works project or public project, as defined in Section 8-49-102(2) C.R.S. the contractor shall comply with 8-17-101 C.R.S. which requires the contractor to use at least eighty percent (80%) Colorado labor for any public works project financed in a whole or in part by State, counties, school districts, or municipal monies. Article 11. BONDS 11.1 BONDS: The Contractor shall, within the time specified in the Request for Bids, and before the commencement of any Work, provide the Owner with a separate: a) Performance bond in an amount equal to 100% of the amount of the Contract Price as a guarantee of the Contractor’s faithful performance and completion of all undertakings, covenants, terms, Page 418 of 436 49 conditions, warranties, and agreements of the Contract; and b) Payment bond in an amount equal to 100% of the amount of the Contract Price, which bond shall conform to the requirements of C.R.S. § 38-26-101, et seq., as amended, as a guarantee of the Contractor’s prompt payment to all persons supplying labor and materials in the prosecution of the Work provided by the Contract. 11.1.1 The Contractor shall use the Bond forms included with the Request for Bids. Other forms may be used if approved by the City Attorney before the submission of the Proposal. 11.1.2 The Contractor bears the expense of all Bonds. 11.1.3 The Contractor shall secure an increase in the bonds in an amount equal to the cost of any additional work authorized pursuant to a duly executed Change Order or Contract Amendment that increases the Contract Price by ten percent (10%) or more, unless waived in writing by the Project Engineer, or Project Manager. 11.1.4 The Contractor and a Surety shall execute the Bonds. The Surety shall be corporate bonding company acceptable to the Owner, licensed to transact such business in the State of Colorado, and listed in the U.S. Department of the Treasury Circular 570 in effect on the date of the Request for Bids. Evidence of authority of an attorney-in-fact acting for the Surety shall be provided in the form of a certificate as to its power of attorney and to the effect that it is not terminated and remains in full force and effect on the rate of the Bonds. 11.1.5 If at any time a Surety on any Bond becomes irresponsible, is disqualified from doing business in the State of Colorado, or becomes insolvent or otherwise impaired, the Contractor shall furnish Bond(s) from an alternate Surety acceptable to the Owner. 11.1.6 The Bonds shall remain in effect until Final Acceptance. Article 12. WARRANTY 12.1 SCOPE OF WARRANTY: Contractor shall guarantee and warranty that the work and all of its components shall remain in good order and repair, be free from defects and flaws in design, workmanship, and materials; shall strictly conform to the requirements of this contract; and shall be fit, sufficient and suitable for the purposes expressed in, or reasonably inferred from, this contract, for a period of two (2) years from all causes arising from defective workmanship and materials, and to make all repairs arising from said causes during such period without further compensation. The warranty herein expressed shall be in addition to any other warranties expressed or implied by law, which are hereby reserved unto Owner. In all emergencies the Contractor shall immediately remedy, repair, or replace, without cost to the Owner and to the entire satisfaction of the Owner, defects, damages or imperfections due to faulty materials or workmanship appearing in said Work within said period of not less than one year. Remedied Work shall carry the same warranty as the original Work starting with the date of acceptance of the replacement or repair. Payment to the Contractor will not relieve him of any obligation under this Contract. 12.1.1 Damage Remedies - The Contractor, at no additional expense to the Owner, shall also remedy damage to equipment, the site, or the buildings or the contents thereof which is the result of any failure or defect in the Work, and restore any Work damaged in fulfilling the requirements of the Contract. Should the Contractor fail to remedy any such failure or defect within a reasonable time after receipt of notice thereof, the Owner will have the right to replace, repair, or otherwise remedy such failure or defect at the Contractor's expense. The determination of the necessity for the repair or replacement of said project, and associated incidentals or any portion thereof, shall rest entirely with the Director of Public Works whose decision upon the matter shall be final and obligatory upon the Contractor. 12.1.2 Subcontractors, Manufacturers and Suppliers - Subcontractors', manufacturers', and suppliers' warranties and guarantees, expressed or implied, respecting any part of the Work and any material used therein shall be deemed obtained and shall be enforced by the Contractor for the benefit of the Owner without the necessity of separate transfer or assignment thereof. 12.1.3 Waiver - The rights and remedies of the Owner provided in this Section are in addition to and do not limit any rights and remedies afforded by the Contract or by law. The Contractor specifically waives all the provisions of Chapter 8 of Article 20 of Title 13, Colorado Revised Statutes regarding defects in the Work under the Contract. 12.2 OWNER'S RIGHT TO CORRECT: If, within five (5) business days after Owner gives Contractor notice of any defect, damage, flaw, unsuitability, nonconformity, or failure to meet a warranty subject to correction by Contractor pursuant to Section 3.1 or Section 3.2 of this contract, or the Contractor neglects to make, or undertake with due diligence to make, the necessary corrections, then Owner shall be entitled to make, either with its own forces or Page 419 of 436 50 with contract forces, the corrections and to recover from Contractor all resulting costs, expenses, losses, or damages, including attorneys' fees and administrative expenses. 12.3 NONEMERGENCY WARRANTY WORK: In cases of warranty work which is not an emergency, all necessary repairs shall be made within a reasonable time not to exceed twenty (20) days after notice of the required repair is received by the contractor. For those items of warranty work which cannot be completed within said twenty (20) day period, the parties shall negotiate a reasonable period of time. 12.4 PERFORMANCE DURING WARRANTY PERIOD: The Project Engineer, or Project Manager, will notify the Contractor of defective Work that is found to be defective and fails to satisfy the warranties and guarantees described in this article, or elsewhere in the Contract Documents, and the Contractor shall, within ten (10) days or such longer time as may be requested and set forth in the notice, commence the repair, replacement, or correction of the defective Work. If the Contractor fails to complete such Work within a reasonable period, the Owner may make the repairs or replacements at the expense of the Contractor. If the Owner determines that immediate action to make repairs, replacements or other corrections is necessary because of emergency conditions or to prevent further loss or damage, the Owner may proceed without notice to the Contractor, but at the expense of the Contractor. 12.4.1 Failure to Correct - If the Contractor does not proceed with the correction of such defective Work within the time fixed by written notice from the Project Engineer, or Project Manager, or if an emergency condition exists, the Owner may remove and store any defective materials or equipment at the expense of the Contractor. If the Contractor does not pay the cost of the removal and storage within ten (10) days thereafter, the Owner may, upon ten (10) additional days’ written notice, sell the stored Work at auction. If the proceeds of sale do not cover all costs that the Owner has incurred and which the Contractor should have borne, the difference shall be charged to the Contractor and the Contractor and its surety shall be liable for and pay such difference to the Owner. 12.4.2 Disputes - If the Contractor does not agree that the Work is defective or the defective Work is its responsibility and if no emergency condition exists, the Contractor may request review, in writing, of the Project Engineer, or Project Manager’s decision by the Director of Public Works, in accordance with these General Conditions. If such review is not requested within ten (10) days of the notification of defective Work, the Contractor shall have waived the right to contest its responsibility for the correction of the defective Work. Under emergency conditions, the Contractor shall immediately correct the alleged defective Work, and the question of responsibility for the expense shall be determined by the Project Engineer, or Project Manager, subject to the right of the Contractor to seek review within ten (10) days of the Owner’s notice allocating responsibility for the expense. 12.4.3 Extension of Warranty Period - Should the Owner claim by written communication sent or mailed before the warranty or guarantee period expires that certain defective Work exists and that it requires repair or replacement, the warranty and guarantee period shall be automatically extended for as long as the defective Work exists. Article 13. INSURANCE; RISK OF LOSS 13.1 GENERAL REQUIREMENTS 13.1.1 Insurance Requirement - The Contractor, at its own cost, shall procure and maintain, and shall cause each Subcontractor to procure and maintain, policies containing the minimum insurance coverage listed in this article for the duration of the Work. Such coverage shall be procured and maintained with forms and insurers acceptable to the Owner. All coverage shall be continuously maintained from the date of commencement of Work. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. The Contractor shall not commence work under this Agreement until it has obtained all insurance required by the contract documents and such insurance has been approved by Owner. The Contractor shall not allow any subcontractor to commence work on this project until all similar insurance required of the subcontractor has been obtained and approved. 13.1.2 No Modification of Liability - The Contractor shall not be relieved of any liability, claims, demands or other obligations assumed pursuant to the Contract Documents by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, durations, or types. The insurance requirements contained in the Contract shall not limit or redefine the obligations of the Contractor as provided elsewhere in the Contract. The limits of any insurance required by this Agreement will not limit Contractor’s liability. Page 420 of 436 51 13.1.3 Evidence of Coverage - Before commencing Work, the Contractor will provide certificates of insurance policies and all necessary endorsements evidencing insurance coverage required by the Contract Documents and identifying the Project. The Owner will not be obligated under the Contract until Contractor provides acceptable such certificates of insurance and endorsements. If the Term extends beyond the period of coverage for any required insurance, the Contractor will, at least ten (10) days before the expiration of any such insurance coverage, provide the Owner with new certificates of insurance and endorsements evidencing either new or continuing coverage. 13.1.4 Breach - Failure on the part of the Contractor to procure or maintain policies providing the required coverage, conditions, and minimum limits shall constitute a material breach of contract upon which the Owner at its discretion may procure or renew any such policy or any extended connection therewith, and all monies so paid by the Owner shall be repaid by Contractor to the Owner upon demand, or the Owner may offset the cost of the premiums against any monies due to Contractor from the Owner. 13.2 REQUIRED POLICIES AND LIMITS: The Contractor agrees to procure and maintain, at its own cost, the following policy or policies of insurance. The Contractor shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to the contract documents by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, durations, or types. Contractor shall procure and maintain, and shall cause each Subcontractor of the Contractor to procure and maintain (or shall insure the activity of Contractor's Subcontractors in Contractor's own policy with respect to), the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurers acceptable to the Owner. All coverages shall be continuously maintained from the date of commencement of the Work. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. 13.2.1 Workers' Compensation Insurance - This will cover obligations imposed by the Workers' Compensation Act of Colorado and any other applicable laws for any employee engaged in the performance of Work under this contract, and Employers' Liability insurance with minimum limits of Five Hundred Thousand Dollars ($500,000) each accident, Five Hundred Thousand Dollars ($500,000) disease - policy limit, and Five Hundred Thousand Dollars ($500,000) disease - each employee. 13.2.2 Commercial General Liability Insurance - Comprehensive general liability insurance insuring against any liability for personal injury, bodily injury or death arising out of the performance of the Work with at least Three Million Dollars ($3,000,000) each occurrence and Three Million Dollars ($3,000,000) general aggregate, including the following coverages: broad form property damage; operations premises liability; personal and advertising injury liability, independent contractors coverage, contractual liability, completed operations/products liability; coverage for construction, means, and methods; and explosion, collapse, and underground liability (if the Work requires blasting, explosive conditions, collapse hazards or underground operations, this coverage shall contain no exclusion relative to property in the care, custody, or control of the insured). 13.2.3 Products and Completed Operations Insurance - Products and completed operations insurance insuring against any liability for bodily injury or property damage caused by the completed Work, with a combined single limit of at least One Million Dollars ($1,000,000) and Two Million Dollars ($2,000,000) general aggregate. 13.2.4 Builder’s Risk - Builder's Risk insurance with minimum limits of not less than the insurable value of the work to be performed under this contract at completion less the value of the materials and equipment insured under installation floater insurance. The policy shall be written in completed value form and shall protect the Contractor and the Owner against risks of damage to buildings, structures, and materials and equipment not otherwise covered under Installation Floater insurance, from the perils of fire and lightning, the perils included in the standard coverage endorsement, and the perils of vandalism and malicious mischief. Equipment such as pumps, engine-generators, compressors, motors, switch-gear, transformers, panel boards, control equipment, and other similar equipment shall be insured under Installation Floater insurance when the aggregate value of the equipment exceeds $10,000. The policy shall provide for losses to be payable to the Contractor and the Owner as their interests may appear. The policy shall contain a provision that in the event of payment for any loss under the coverage provided, the insurance company shall have no rights of recovery against the Contractor or the Owner. 13.2.5 Comprehensive Automobile Liability Insurance - Comprehensive automobile liability insurance insuring against any liability for personal injury, bodily injury or death arising out of the use of motor vehicles and covering operations on or off the site of all motor vehicles controlled by Contractor that are used in connection with performance of the Work, whether the motor vehicles are owned, non-owned, Page 421 of 436 52 hired, leased, or borrowed, with a combined single limit of at least Two Million Dollars ($2,000,000) each occurrence, Two Million Dollars aggregate and personal injury protection per Colorado law. 13.2.6 Installation Floater – Floater with minimum limits of not less than the insurable value of the work to be performed under this contract at completion, less the value of the materials and equipment insured under Builder's Risk insurance. The value shall include the aggregate value of any City furnished equipment and materials to be erected or installed by the Contractor not otherwise insured under Builder's Risk insurance. The policy shall protect the Contractor and the Owner from all insurable risks of physical loss or damage to materials and equipment not otherwise covered under Builder's Risk insurance, while in warehouses or storage areas, during installation, during testing, and after the work under this contract is completed. The policy shall be of the "all risks" type, with coverages designed for the circumstances which may occur in the particular work to be performed under this contract. The policy shall provide for losses to be payable to the Contractor and the Owner as their interests may appear. The policy shall contain a provision that in the event of payment for any loss under the coverage provided, the insurance company shall have no rights of recovery against the Contractor or the Owner. 13.2.7 Other Insurance - Any other insurance required by applicable law. 13.3 TERMS OF INSURANCE 13.3.1 Additional Insured - Except for the workers’ compensation policy, all required insurance policies shall name the Owner, its officers and employees and any additional person or entity identified by the Owner as an additional insured and will provide that the Owner or other additional insured, although named as an additional insured, will nevertheless be entitled to recovery under said policies for any loss occasioned to the City or its officers, employees or agents or other additional insured by reason of the negligence of Contractor or its officers, employees, agents, subcontractors or business invitees. The insurance policies will be for the mutual and joint benefit and protection of the Contractor and the City and other additional insured, if any. Such policies will be written as primary policies not contributing to and not in excess of coverages the City or other additional insured may carry. Every policy required above shall be primary insurance, and any insurance carried by the Owner, its officers, or its employees, shall be excess and not contributory insurance to that provided by Contractor. The additional insured endorsement for the Comprehensive General Liability insurance required above shall not contain any exclusion for bodily injury or property damage arising from completed operations. The Contractor shall be solely responsible for any deductible losses under each of the policies required above. 13.3.2 Certificates of Insurance - Certificates shall be completed by the Contractor's insurance agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect, and shall be subject to review and approval by the Owner. Each certificate shall identify the Project. If the words "endeavor to" appear in the portion of the certificate addressing cancellation, those words shall be stricken from the certificate by the agent(s) completing the certificate. The Owner reserves the right to request and receive a certified copy of any policy and any endorsement thereto. 13.3.3 Qualification; Deductible - Insurance required by this Section will be with companies qualified to do business in the State of Colorado and having an AM Best Rating of not less than B+ and/or VII. Insurance may provide for deductible amounts as the Contractor deems reasonable for the Services, but in no event greater than Twenty Thousand Dollars ($20,000.00) (unless waived by the Owner), and the Contractor will be responsible for the payment of any such deductible. 13.3.4 Cancellation - The coverages afforded under the policies shall not be cancelled, terminated or materially changed until at least 30 days prior written notice has been given to the Owner. 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 the Owner may immediately terminate the contract, or at its discretion 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 the Owner shall be repaid by Contractor to the Owner upon demand, or the Owner may offset the cost of the premiums against any monies due to Contractor from the Owner. 13.3.5 Coverage Type - Contractor will identify whether the type of coverage is “occurrence” or “claims made.” If the type of coverage is “claims made,” which at renewal Contractor changes to “occurrence,” the Contractor will carry a twelve (12) month tail. The Contractor will not do or permit to be done anything that will invalidate the policies. 13.3.6 No “Pollution Exclusion.” - The required insurance will cover any and all damages, claims or suits Page 422 of 436 53 arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants, and will not exclude from coverage any liability or expense arising out of or related to any form of pollution, whether intentional or otherwise. If the Contractor is unable to procure a policy of insurance in compliance with these provisions, the Contractor will secure and maintain either a rider or a separate policy insuring against liability for pollution related damages, claims or suits, as described in subsection ii(a), with at least Two Million Dollars ($2,000,000) each occurrence, subject to approval by the Owner. 13.3.7 The parties hereto understand and agree that the Owner is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101 et seq., as from time to time amended, or otherwise available to the Owner, its officers, or its employees. Article 14. INDEMNIFICATION 14.1 CONTRACTOR TO OWNER: The Contractor shall, only to the extent and for an amount represented by the degree or percentage of negligence or fault attributable to the Contractor, indemnify, save harmless, and defend the City, its officers and employees, from and in all suits, actions or claims of any character brought because of: any injuries or damage received or sustained by any person, persons or property because of operations for the City under the Contract; the Contractor’s failure to comply with the provisions of the Contract; the Contractor’s neglect of materials while constructing the Work; because of any act or omission, neglect or misconduct of the Contractor; because of any claims or amounts recovered from any infringements of patent, trademark, or copyright, unless the design, device, materials or process involved are specifically required by Contract; from any claims or amount arising or recovered under the “Workers’ Compensation Act,” by reason of the Contractor’s failure to comply with the act; pollution or environmental liability; or any failure of the Contractor to comply with any other law, ordinance, order or decree. Nothing in this article requires the Contractor to defend, indemnify, or hold harmless the City from the City’s own negligence. 14.1.1 The Contractor will include this article in all Subcontracts. 14.1.2 The City may retain so much of the money due the Contractor under the Contract as the City considers necessary to offset any damages for which Contractor may be liable under this paragraph. If no money is due, the Contractor’s Surety may be held until such suits, actions, claims for injuries or damages have been settled. Money due the Contractor will not be withheld when the Contractor produces satisfactory evidence that it and the City are adequately protected by public liability and property damage insurance. 14.1.3 The Contractor will pay the City all expenses incurred to enforce this article. If the insurer of the Contractor fails to provide or pay for the defense of the City of Englewood, its officers and employees, as additional insured, the Contractor agrees to pay for the cost of that defense. 14.1.4 This article will survive Final Acceptance and the termination of this Contract. 14.2 OWNER TO CONTRACTOR: The City cannot, under Article XI, Section 1 of the Colorado Constitution, and by this Agreement/Contract does not agree to indemnify, hold harmless, exonerate or assume the defense of the Contractor or any other person or entity, for any purpose The Contractor and his Surety shall indemnify and save harmless the Owner, its officers, agents, employees, successors and assigns from all suits, demands, actions, or claims of any nature whatsoever brought or made against the Owner, its officers, agents, employees, successors or assigns from any injuries or damages sustained by any person, firm or corporation or property or resulting from or arising out of any neglect in safeguarding the Work, or through the use of unacceptable materials in the construction of the improvement, or as a result of any act or omission by the said Contractor, or from the use, misuse, storage or handling of explosives or on account of any claims or amounts recovered for any infringement of patent, trade- mark, or copyright, or from any claims or amounts arising or recovered under the Workmen's Compensation Laws, or any other law, by-law, ordinance, order or decree, and so much of the money due the said Contractor under and by virtue of his Contract, as shall be considered necessary by the Owner, may be retained or, in case no money is due, his surety shall be held until such suit or suits, action or actions, claim or claims, for injuries or damages as aforesaid, shall have been settled and satisfactory evidence to that effect furnished to the Owner. 14.3 NO PERSONAL LIABILITY OF THE PROJECT ENGINEER, OR PROJECT MANAGER: The Project Engineer, or Project Manager, is an agent of Owner and the Project Engineer, or Project Manager, his agents, heirs, successors and assigns shall have no liability to any third party as a result of his performance of under this Contract. 14.4 NO WAIVER OF LEGAL RIGHTS: Inspection by the Project Engineer, or Project Manager, or by any of his duly authorized representatives, of any order, measurement, or certificate by the Project Engineer, or Project Manager; of any order by the Owner for the payment of money; of any payment for or acceptance of any Work or any extension Page 423 of 436 54 of time; or of any possession taken by the Owner, shall not operate as a waiver of any provision of the Contract, or any power therein provided. A waiver of any breach or term of the Contract shall not be deemed to be a waiver of any other or subsequent breach. The Owner reserves the right to correct any error that may be discovered in any estimate that may have been paid, and to adjust the same to meet the requirements of the Contract and Specifications. The Owner reserves the right to claim and recover, by process of law, sums as may be sufficient to correct any error or make good any deficit in the Work resulting from such error, dishonesty, or collusion upon proof of collusion or dishonesty between the Contractor or his agents and the Project Engineer, or Project Manager, or his assistants, discovered in the Work after the final payment has been made. Article 15. DEFAULTS, REMEDIES AND TERMINATION 15.1 NOTICE OF DISPUTES AND OBJECTIONS: If Contractor disputes or objects to any requirement, direction, instruction, interpretation, determination, or decision of Owner, Contractor may notify Owner in writing of its dispute or objection and of the amount of any equitable adjustment to the contract price or contract time to which Contractor claims it will be entitled as a result thereof; provided, however, that Contractor shall, nevertheless, proceed without delay to perform the work as required, directed, instructed, interpreted, determined, or decided by Owner, without regard to such dispute or objection. Unless Contractor so notifies Owner within two business days after receipt of such requirement, direction, instruction, interpretation, determination, or decision, Contractor shall be conclusively deemed to have waived all such disputes or objections and all claims based thereon. 15.1.1 Notice of Intent - The Contractor shall submit a “Notice of Intent to Claim” for any claim, dispute, or protest (“Claim”) of any decision or event arising out of or related to this Contract (other than those for which a specific procedure is set forth elsewhere in these General Conditions) in writing within ten (10) days of the later of the Contractor’s receipt of the Project Engineer, or Project Manager’s written instruction or decision (if applicable), deemed denial, or any other event giving rise to the claim, dispute, or other matter and shall include the basis for the Claim. The Notice of Intent to Claim shall be clearly titled as such, dated as of the actual date of submission, and numbered sequentially, and shall contain at a minimum: a) Project title and number; b) Date of the event giving rise to the claim, dispute, or protest; c) A description of the Claim and the events giving rise to the Claim, including any original request and the Project Engineer, or Project Manager’s decision or denial; and d) The reasons why the Contractor believes additional compensation or time is due or charges were wrongly assessed; e) An accounting or estimate of all additional costs associated with the Claim; f) The Contractor’s plan for mitigating costs or delays associated with the Claim. 15.1.2 Claim - Within twenty (20) days after submitting the Notice of Intent to Claim, the Contractor shall submit to the Project Engineer, or Project Manager, a complete and itemized Claim that includes any claimed increase in Contract Time or Contract Price, or both. The Contractor may request an extension of time to submit the Claim, which extension may be granted by the Project Engineer, or Project Manager, provided that good cause is shown. The Claim must be described in sufficient detail to allow the Owner to evaluate the basis of and costs associated with the Claim. a) A Claim for an increase in Contract Price shall be submitted based on actual costs whenever possible, rather than an estimate or opinion, shall be supported by invoices, time cards, and other business records commonly accepted in the industry, and shall comply with the requirements of these General Conditions concerning changes to the Contract Price. b) Any Claim for changes to the Contract Time shall include the information required by these General Conditions concerning changes to the Contract Time. The Claim shall be accompanied by copies of all Contract provisions or other documents supporting the Claim and a summary of the legal and factual theories supporting the Claim. A Claim for time extension must be accompanied by a revised Construction Schedule reflecting the effects of the delay on the completion of critical activities and showing actions that the Contractor has taken or proposes to take to minimize the effects of the delay. c) The Claim shall also identify any measures the Owner can take to minimize the Claim. d) The Contractor shall submit with its Claim a notarized certificate, executed under penalties of perjury, that:  The Claim is made in good faith;  All supporting data are accurate and complete to the best of the Contractor’s knowledge and belief;  The amount requested accurately reflects that Contract adjustment for which the Contractor believes the City is liable; and  The prices stated for material and equipment are the lowest reasonably available to the Page 424 of 436 55 Contractor and include all available discounts. e) If the Contractor is an individual, the certification shall be executed by that individual; if the Contractor is not an individual, the certification shall be executed by an officer or general partner of the Contractor or other person having written authority to sign the Claim. f) The Contractor shall furnish, upon request, all additional information and data that the Owner determines is needed to aid in resolving the Claim through negotiation or is required to complete an evaluation of the Claim. The Contractor shall give the City access to its books, correspondence, records, electronic files and data bases, and any other materials relating to the Claim, shall require its Subcontractors and Suppliers to provide the City with such access, and shall make its Personnel and that of its Subcontractors and Suppliers available to discuss and answer cost, schedule and other questions relating to the Claim. Clear copies of all necessary supporting records shall be provided to the City at no cost. Failure to submit requested information may be a basis for denial of the Claim. 15.2 NEGOTIATION OF DISPUTES: To avoid and settle without litigation any such dispute or objection, Owner and Contractor agree to engage in good faith negotiations. 15.3 DECISION: The Owner shall investigate, review, and evaluate the Claim and make a determination in writing within sixty (60) days of receipt of a completed and fully documented claim, unless special circumstances exist or the Claim is unusually complex, in which case the Contractor will be notified of any longer review period. If no determination is made within sixty (60) days, or by the end of any announced extended period of time, the claim is automatically denied. The Contractor shall proceed diligently with performance of the Contract, pending final resolution of any Claim made under this article. Failure to proceed with the Work shall be grounds for suspension or termination of the Contract. If the Contractor agrees with any determination or resolution by the City, such determination or resolution shall be processed as a Change Order 15.4 WAIVER: Failure to strictly meet any of the requirements of this article in a timely and complete manner shall constitute a waiver by the Contractor of any and all right to adjustments of Contract Time or Contract Price, either by administrative review or by any other action at law or equity. Strict compliance with all provisions of this article shall be a condition precedent to the Contractor’s ability to file any lawsuit in law or equity, or recover any damages, in connection any Claim. 15.5 CONTRACTOR'S REMEDIES: If Owner fails or refuses to satisfy a final demand made by Contractor pursuant to Section 9.3 of this contract, or to otherwise resolve the dispute which is the subject of such demand to the satisfaction of Contractor, within ten days following receipt of such demand, then Contractor shall be entitled to pursue such remedies, not inconsistent with the provisions of this contract, as it may have in law or equity. If the Contractor disagrees with the City’s determination of the Claim, the Parties shall first submit the dispute to non-binding mediation before seeking any remedy in any other forum. The mediator shall be a trained mediator having experience related to municipal construction projects. The Parties shall jointly select the mediator from a list of mediators proposed by the Parties. If the Parties are unable to agree on a mediator, the Parties shall submit three mediator names each and the mediator shall be selected by random drawing at which the Project Engineer, or Project Manager, and the Contractor are present. No discussions or statements of the mediator may be admitted as evidence in any subsequent litigation, nor may the mediator be called to testify in any litigation. The cost of the mediator shall be shared equally by the Parties. Mediation in accordance with this section shall be a condition precedent to filing any lawsuit relating to any Claim. 15.6 OWNER'S REMEDIES: If it should appear at any time prior to final payment that Contractor has failed or refused to prosecute, or has delayed in the prosecution of, the work with diligence at a rate that assures completion of the work in full compliance with the requirements of this contract on or before the completion date, or has attempted to assign this contract or Contractor's rights under this contract, either in whole or in part, or has falsely made any representation or warranty in this contract, or has otherwise failed, refused, or delayed to perform or satisfy any other requirement of this contract or has failed to pay its debts as they come due ("Event of Default"), and has failed to cure any such Event of Default within five business days after Contractor's receipt of written notice of such Event of Default, then Owner shall have the right, at its election and without prejudice to any other remedies provided by law or equity, to pursue any one or more of the following remedies: a) Owner may require Contractor, within such reasonable time as may be fixed by Owner, to complete Page 425 of 436 56 or correct all or any part of the work that is defective, damaged, flawed, unsuitable, nonconforming, or incomplete; to remove from the work site any such work; to accelerate all or any part of the work; and to take any or all other action necessary to bring Contractor and the work into strict compliance with this contract. b) Owner may perform or have performed all work necessary for the accomplishment of the results stated in Paragraph a above and withhold or recover from Contractor all the cost and expense, including attorneys' fees and administrative costs, incurred by Owner in connection therewith. c) Owner may accept the defective, damaged, flawed, unsuitable, nonconforming, incomplete, or dilatory Work or part thereof and make an equitable reduction in the contract price. d) Owner may terminate this contract without liability for further payment of amounts due or to become due under this contract. e) Owner may, without terminating this contract, terminate Contractor's rights under this contract and, for the purpose of completing or correcting the work, evict Contractor and take possession of all equipment, materials, supplies, tools, appliances, plans, specifications, schedules, manuals, drawings, and other papers relating to the work, whether at the work site or elsewhere, and either complete or correct the work with its own forces or contracted forces, all at Contractor's expense. f) Upon any termination of this contract or of Contractor's rights under this contract, and at Owner's option exercised in writing, any or all subcontracts and supplier contracts of Contractor shall be deemed to be assigned to Owner without any further action being required, but Owner shall not thereby assume any obligation for payments due under such subcontracts and supplier contracts for any Work provided or performed prior to such assignment. g) Owner may withhold from any Progress Payment or final payment, whether or not previously approved, or may recover from Contractor, any and all costs, including attorneys' fees and administrative expenses, incurred by Owner as the result of any Event of Default or as a result of actions taken by Owner in response to any Event of Default. h) Owner may recover any damages suffered by Owner. 15.7 OWNER'S SPECIAL REMEDY FOR DELAY: If the work is not completed by Contractor, in full compliance with, and as required by or pursuant to, this contract, within the contract time as such time may be extended by a Change Order, then Owner may invoke its remedies under Section 9.6 of this contract or may, in the exercise of its sole and absolute discretion, permit Contractor to complete the work but charge to Contractor, and deduct from any Progress or Final Payments, whether or not previously approved, administrative expenses and costs for each day completion of the work is delayed beyond the Completion Date, computed on the basis of the "Per Diem Administrative Charge" set forth in Section 4.8, as well as any additional damages caused by such delay. 15.8 ATTORNEY FEES: In the event there is any dispute between the Contractor or the Surety and the Owner, its officers, agents or employees, and the Owner, its officers, agents or employees prevail, the Owner, its officers, agents or employees shall be granted all of its costs, including but not limited to attorney's fees, court costs and expert witness fees. Article 16. INDEPENDENT CONTRACTOR The Contractor shall perform the Services as an independent contractor and shall not be deemed by virtue of this Contract to have entered into any partnership, joint venture, employer/employee or other relationship with the Owner other than as a contracting party and independent contractor. Article 17. DISPOSAL; HAZARDOUS SUBSTANCES 17.1 REMOVAL AND DISPOSAL OF STRUCTURES AND OBSTRUCTIONS: All structures or obstructions found on the site and shown on the Plans which are not to remain in place or which are not to be used in the new construction shall be removed as directed by the Project Engineer, or Project Manager. Unless specified in the Proposal, this Work will not be paid for separately but will be included in the price Proposal for that portion of the Work requiring the removal of the obstruction. All material found on the site or removed therefrom shall become the property of the Contractor unless otherwise indicated. Materials determined by the Project Engineer, or Project Manager, to be unsuitable for backfill shall be disposed of off the site at the Contractor's expense. 17.2 CLEANING UP AND RESTORATIONS: The Contractor shall clean up and lawfully dispose of all refuse or scrap materials so the site presents a neat, orderly, and workmanlike appearance at all times. The Contractor shall follow all direction from the Project Engineer, or Project Manager, as to the appearance of the site at all times. The Contractor shall remove all mud or other materials tracked or otherwise deposited on any roadway daily or as directed by the Project Engineer, or Project Manager. Upon completion of the Work, and before Final Inspection, the Contractor shall remove from the construction site and any occupied adjoining property all plants, buildings, refuse, unused materials, forming lumber, sanitary Page 426 of 436 57 facilities, and any other materials and equipment that belong to the Contractor or any Subcontractors. The Contractor shall clean and replace any broken or scratched windows, clean and repair all surfaces, and clean and adjust all units of equipment that are part of the Work. Final Payment will not be made until all cleanup is done to the Project Engineer, or Project Manager’s, satisfaction. At the Contractor’s cost, the Owner may clean up and restore the construction site satisfactorily when the Contractor fails to do so within two (2) days of the Project Engineer, or Project Manager’s, direction. The Owner may deduct any such cost from any payment due the Contract or may recover such costs from the Contractor or the Surety. 17.3 REMOVAL OF CONDEMNED MATERIALS AND WORK: The Contractor shall remove from the site of work without delay all rejected and condemned materials and work. Upon failure of the Contractor to remove and properly dispose of the rejected material or work immediately after receiving formal notice to do so, the Engineer may have such material or work removed and charge the cost of same to the Contractor. 17.4 PEST & VECTOR CONTROL: The Contractor will be responsible for pest control and vector control at the Work site until Substantial Completion. All pest and vector control activities shall be conducted in compliance with applicable laws, including ordinances, statutes and regulations governing the handling, storage and application of pesticides or other hazardous materials and substances. 17.5 HAZARDOUS SUBSTANCES: “Hazardous Substances” include any substance identified as a hazardous substance pursuant to any federal, state or local law or regulation regulating substances by reason of threats posed to public health and safety, including the Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the Emergency Planning and Community Right-to-Know Act of 1986, the Hazardous Substances Transportation Act, the Solid Waste Disposal Act, the Clean Water Act, the Clean Air Act, the Toxic Substances Control Act, the Safe Drinking Water Act, the Occupational Safety and Health Act, and the Asbestos Hazard Emergency Response Act, all as amended. 17.6 EXISTING FACILITIES – HAZARDOUS SUBSTANCES MAY EXIST: Contractor acknowledges that most existing structures owned or operated by Owner may contain asbestos-containing materials, and the Site may also contain other Hazardous Substances. 17.7 NO INTRODUCTION OF HAZARDOUS SUBSTANCES: Contractor, its contractors, its Subcontractors, its Sub- subcontractors, its Suppliers, and their respective agents, representatives and employees shall not introduce or cause the introduction of Hazardous Substances to the Project. Except as provided below as to Ordinary Course Materials, in the event that Contractor, its contractors, its Subcontractors, its Suppliers, or their respective agents, representatives and employees introduce or cause the introduction of Hazardous Substances to the Project, Contractor shall pay for removal of all such substances and shall indemnify Owner and its successors as owners of the Property for all liability resulting from the introduction of such Hazardous Substances to the Project. 17.8 SUSPECTED HAZARDOUS SUBSTANCES: Contractor acknowledges that other Hazardous Substances may exist in building materials, soils, or equipment used on the Site. Contractor shall not be primarily responsible to identify Hazardous Substances existing on the Site; provided that Contractor shall be responsible to comply with all recommendations and requirements of environmental consultants furnished to Contractor in writing. Except as provided above and except for Ordinary Course Materials, if Contractor encounters what Contractor reasonably believes may be Hazardous Substances, Contractor shall immediately stop Work in the area affected and immediately report the condition to Project Engineer, or Project Manager, and Owner in writing. If, in fact, the materials are Hazardous Substances, the Work in the affected area shall not thereafter be resumed, except by written agreement of Owner and Contractor, until the Hazardous Substances have been removed or rendered safe by Owner in accordance with all applicable laws at Owner’s expense, and Owner has provided reasonable evidence thereof to Contractor. The Work in the affected area shall be resumed in the absence of Hazardous Substances, when any Hazardous Substances have been rendered harmless, or when the conditions in the preceding sentence have been satisfied. Unless such materials were introduced to the Project by Contractor, Subcontractors, Sub- subcontractors, Suppliers, or their respective agents, representatives and employees, Owner shall be responsible for all reasonable costs related to any testing, removal, encapsulation, or remediation of any such substances or materials, and any additional cost of the Work arising out of any delay in the Work caused thereby. Except as to such materials introduced to the Project by Contractor, Subcontractors, Sub- subcontractors, Suppliers, or their respective agents, representatives and employees, any delays arising out of such testing, removal, encapsulation, or remediation shall be an Owner Delay, but only to the extent that the same causes actual delay in the Work that satisfies all the requirements necessary to be an Owner Delay under Section 3.4.1; provided, however, that if the Agreement is a GMGC Agreement, any increases in the Cost of Work (and any associated Construction Fee and General Conditions fee, if applicable) in connection with any such Owner Delay shall be charged to the Contingency, and an increase in the Guaranteed Maximum Price shall be allowed, if at all, only to the extent that such amounts exceed the balance of the Contingency. 17.9 ORDINARY COURSE MATERIALS: Nothing contained herein shall be deemed to preclude Contractor from using and bringing onto the Property materials and substances (which are otherwise Hazardous Substances) used in Page 427 of 436 58 the ordinary course of commercial construction in quantities typically and safely used for such purposes (“Ordinary Course Materials”). Contractor shall use all Ordinary Course Materials in accordance with all Current Laws and shall make sure that none of the Ordinary Course Materials are released or otherwise permitted to contaminate the Property or render the Property contaminated. Contractor shall defend and indemnify Owner against any claim, cost, loss, or damage resulting from the use of the Ordinary Course Materials in connection with the Project or resulting from the introduction of Hazardous Substances onto the Property in a manner not specifically permitted hereby. In the event Contractor recognizes any improper handling or storage of Hazardous Substances on the Site, including Ordinary Course Materials, or observes circumstances which contractor actually knows may result in the release or discharge of Hazardous Substances, whether or not by someone for whose acts Contractor is responsible, Contractor shall immediately notify Owner thereof. Article 18. ROYALTIES AND PATENTS 18.1 PATENTS AND COPYRIGHTS: The Contractor’s Proposal price shall be considered to include a sufficient sum to cover all fees, royalties and claims for any material, artist rights, process, patent rights, machine, appliance, copyright, trademark, or any arrangement that may be used upon or in any manner connected with or appurtenant to the Work. The Contractor shall provide a suitable legal agreement giving the Contractor the right to use any design, device, material, or process covered by letters patent or copyright, in the construction of the Project when the use has not been specified or required by the Drawings and Specifications. The Contractor shall file a copy of this agreement with the Owner, if requested. The Contractor and the Surety shall indemnify, defend and save harmless the Owner from all claims for infringements on patented design, devices, material, process or any trademark or copyright during the prosecution or after the completion of the Project. If any design, device, material, process or product of a particular manufacturer covered by letters patent or copyright is specified for use by the Drawings and Specifications, the Owner is responsible for any claims for infringement by reason of the use of such design, device, material, process or product of a particular manufacturer; but the Contractor shall pay any royalties or license fees required. No reports, graphics or other material produced specifically for the Owner under this Contract shall be the subject of an application for copyright or trademark by or on behalf of Contractor. Article 19. DRAWINGS, DETAIL AND INSTRUCTIONS 19.1 DRAWINGS AND SPECIFICATIONS: This Section 2.2 shall be included in all subcontracts hereunder at all times. (a) In the Drawings and Specifications, the Owner intends that the Contractor furnish all superintendence, labor, materials, tools, equipment, supplies, machinery and transportation necessary for the proper execution of the Work unless specifically noted otherwise. The Contractor shall do all the Work shown on the Drawings and described in the Specifications and all incidental Work reasonably necessary to complete the Project in a substantial and acceptable manner, and to complete fully the Work, ready for use, by the Owner. The Contractor shall complete all Work according to the Specifications and Drawings. (b) The Contract Documents are intended to be complementary, and Work called for on any Drawing and not mentioned in the Specifications, or Work described in the Specifications and not shown on any Drawing, is included under the Contract as if set forth in both the Specifications and Drawings. (c) Material and workmanship specified by the number, symbol, or title of a referenced standard shall comply with the latest edition or revision thereof and any amendments or supplements thereto in effect on the date the Proposal is received except where a particular issue or edition of a publication is indicated. In case of a conflict between the Drawings, Specifications and the referenced standard, the more stringent shall govern, as determined by the Project Engineer, or Project Manager. (d) If labor, materials or equipment, although not described by the Drawings or Specifications, is required to successfully complete the Work and can reasonably be inferred by competent contractors by virtue of common knowledge or customary practice in the construction industry from the Contract Documents as being necessary to produce the intended result, the Contractor shall perform that work or provide the materials or equipment as if they were specified. (e) Contractor shall carefully study the Contract Documents and, if Contractor identifies any discrepancies found between the Drawings and Specifications and site conditions and any adjacent work on which the Work is dependent and any errors or omissions in the Drawings or Specifications, shall promptly notify the Project Engineer, or Project Manager, of such discrepancies, errors, or omissions in writing, and any necessary changes shall be accomplished by issuance of an appropriate Change Order or Field Page 428 of 436 59 Order. Any Work done by the Contractor after discovery of such discrepancies, errors or omissions prior to the issuance of a Change Order or Field Order is done at the Contractor's risk. In all cases, the Project Engineer, or Project Manager, shall decide the intent of the Drawings and Specifications. In the event such discrepancies exist and the Project Engineer, or Project Manager, is not so notified, the Project Engineer, or Project Manager, shall reserve the right to exercise sole arbitration authority. It is mutually agreed that all authorized alterations affecting the requirements and information given on the Approved Plans shall be in writing and approved by the Project Engineer, or Project Manager. (f) If the Contractor or any of its Subcontractors or Suppliers, knows or reasonably should know by virtue of common knowledge or customary practice in the construction industry that any of the Contract Documents are at variance with applicable laws, statutes, ordinances, building codes, or rules or regulations, in any respect, the Contractor shall promptly notify the Project Engineer, or Project Manager, in writing, and any necessary changes shall be accomplished by issuance of an appropriate Change Order or Field Order. The Contractor shall assume full responsibility for, and shall bear all costs attributable to work performed by the Contractor or any Subcontractor prior to the issuance of a Change Order or Field Order when any of them know or reasonably should know that it is contrary to such laws, statutes, ordinances, building codes, rules or regulations. (g) The Contractor, before commencing work, shall verify all governing dimensions, and shall examine, to the extent reasonable, all adjoining work on which its Work is in any way dependent. No disclaimer of responsibility for defective or non-conforming adjoining work will be considered unless written notice of the same has been filed by the Contractor and agreed to in writing by the Project Engineer, or Project Manager, before the Contractor begins any part of the affected Work. (h) The Contractor shall perform no portion of the Work at any time without Contract Documents or, where required, approved Drawings, Specifications, instructions, Shop Drawings, product data, or samples for such portion of the Work. 19.2 COPIES OF DRAWINGS AND SPECIFICATIONS FURNISHED: The Project Engineer, or Project Manager, will furnish to the Contractor copies of Drawings and Specifications of the Work at reproduction costs (including labor) or electronic copies of Drawings and Specifications in electronic form at no charge. 19.3 UTILITIES: Delays relating to relocation of utilities should be anticipated for Work on or involving City rights- of-way. It is the Contractor’s responsibility to verify all locations of existing structures and utilities shown on the Drawings and to ascertain whether any other structures and utilities exist. The Drawings show available information on the location of existing underground, surface and overhead structures and utilities. However, the Owner does not guarantee the results of the investigations are accurate or complete. 19.4 REQUESTS FOR CLARIFICATION AND INFORMATION: The Contractor shall submit any requests for information or clarification of Drawings and Specifications to the Project Engineer, or Project Manager, or to the person who has been designated by the Project Engineer, or Project Manager, to receive such requests. When the City responds to such requests for information or clarification, it will issue a response which can consist of a written explanation with or without drawings or other information in the City’s sole discretion. Such requests and responses to such requests shall neither authorize nor constitute changes in the Contract Time or Contract Price. If the Contractor believes that the response to any request for information or clarification requires a change in Contract Time or Contract Price, it shall submit a Contractor Change Request in accordance with the Contract Documents. The Contractor shall review and attempt to answer requests for information or clarification from its Subcontractors and Suppliers. Such requests shall be encompassed within the Contractor’s request for information or clarification by the Contractor to the Project Engineer, or Project Manager, if the Contractor is unable to answer such requests. 19.5 DIMENSIONS: Figured dimensions shall govern over scaled dimensions. 19.6 SHOP DRAWINGS (a) The Plans will be supplemented by Shop Drawings as necessary to adequately control the Work or as specified. Shop Drawings are not part of the Contract documents. Shop Drawings may consist of drawings, diagrams, illustrations, schedules, calculations, and other data prepared by the Contractor, Subcontractor, manufacturer, supplier, or distributor, which will illustrate how specific portions of the Work shall be fabricated and/or installed in accordance with the Plan details and Specifications. The Contractor shall provide Shop Drawings, settings, schedules, and such other Drawings as may be necessary for the prosecution of the Work in the shop and in the field as required by the Drawings, Specifications or Project Engineer, or Project Manager’s instructions. (b) Any Work done prior to the Owner's approval of Shop Drawings will be at the Contractor's risk. (c) The Project Engineer, or Project Manager, may request additional details and require the Contractor to make changes in the design which are necessary to conform to the provisions and intent of these Page 429 of 436 60 Specifications without additional cost to the Owner. (d) The Contractor shall submit for approval three (3) hard copies and one electronic copy of all Shop Drawings and descriptive data as applicable showing all features not fully detailed on the Specifications but essential for a completely coordinated installation. After checking, one set will be returned to the Contractor. The Contractor will correct errors in Shop Drawings as directed by the Owner. (e) The Owner’s approval of Shop Drawings indicates only that the type and kind of equipment and general method of construction or detailing are satisfactory and in general compliance with the Contract Documents and design concept of the Project. The Contractor has the responsibility for incorporating into the Work satisfactory materials and equipment meeting the requirements of the Contract Documents, the proper dimensions, and the detailing of connections. Approval of the Shop Drawings by the Project Engineer, or Project Manager, shall not be construed as a complete check and verification, but will indicate that general conformance with the design concept and general compliance with the information given in the Contract has been achieved. Any information or action to be taken as set forth in the Shop Drawings is subject to the requirements of the Plans and Specifications. The Project Engineer, or Project Manager, shall be notified in writing of any information in the Shop Drawings that deviates from the requirements of the Contract documents. Appropriate action will then be taken by the Project Engineer, or Project Manager. (f) The Contractor may not construe such approval as a complete check and approval does not indicate the waiver of any Contract requirement. Changes in the Work are authorized only by separate written Change Order. (g) Shop Drawings being returned will be stamped to indicate the following: • Shop Drawings approved for use in construction will have one of the following statements checked: Approved, No Exception Taken, or Approved as Noted. • Shop Drawings to be corrected or redrawn and resubmitted for approval will have one of the following statements checked: Revise as Noted, Resubmit; or Rejected. (h) If Shop Drawings are returned for correction, corrections shall be made and the corrected drawings shall be resubmitted by the Contractor in the same manner as the first submittal. (i) The time required for approval of each submittal will not exceed four (4) weeks after Shop Drawings are received by the Project Engineer, or Project Manager. (j) It is the intent of these Specifications that no more than two submittals will be required. If, however, additional submittals are required by actions of the Contractor, the additional time for Shop Drawing approval will be borne by the Contractor. If additional submittals are required, or if Shop Drawing approval is delayed by actions of the Project Engineer, or Project Manager, and if the Contractor's controlling operations are delayed or interfered with by reason of the delay in Shop Drawing reviews, an extension of time commensurate with the delay in completion of the Work thus caused will be granted as provided in Subsection 6.7, Determination and Extension of Contract Time for completion (k) All Shop Drawings shall be 36 inches long and 22 inches wide overall. There shall be a two inch margin on the left side of the sheet and one-half inch margin on the other three sides. A blank space, six inches by three inches, shall be left near the lower right-hand corner for an approval stamp. (l) Where design notes or catalogue cuts are required, they may be submitted on 8-1/2 in. x 11 in. sheets in lieu of the size mentioned above. (m) There shall be a title block in the lower right-hand corner of each sheet. The title block shall show the Owner's name, structure number, the location of the structure, and the contents of the sheet. (n) The Contract price will include the cost of furnishing all Shop Drawings. Shop drawings and working drawings submitted to the Project Engineer, or Project Manager, by the Contractor, Subcontractor or any lower tier Subcontractor pursuant to the Work, may be duplicated by the Owner and the Owner may use and disclose, in any manner and for any purpose such Shop Drawings and Working Drawings delivered under this Contract. 19.7 RECORD DOCUMENTS: (a) The Contractor shall keep one complete set of all current Drawings and Specifications at the work site and available to the Owner and its representatives at all times. The Contractor shall also keep a set of “shop” drawings on-site that contain all changes or deviations from the original drawings neatly marked thereon in brightly contrasting color. This shall be a separate set of drawings, not used for construction purposes, which shall be kept up to date as the job progresses and shall be made available for inspection by the Project Engineer, or Project Manager, at all times. Upon completion of the Contract, this set of drawings shall be delivered to the Project Engineer, or Project Manager. (b) The Contractor shall keep one record copy of all Amendments, Change Orders, Drawings, Field Orders, Shop Drawings and Specifications in good order. (c) The Contractor shall record any changes made during construction and any discrepancies between the Contract Documents and Work actually performed on the record copies (however minor or seemingly insignificant). The Contractor shall make a set of “Record Drawings” by marking this set of prints with Page 430 of 436 61 all changes from the original Drawings as Proposal, including all Change Orders, alignment changes, depth changes of underground pipes and utilities, utility locations, and all other items that are not the same as originally drawn. The Contractor shall keep the Record Drawings up to date as the Project progresses. The Project Engineer, or Project Manager, may require, as a condition of the approval of any progress payment, periodic inspection of the Record Drawings. The Contractor will deliver the Record Drawings to the Project Engineer, or Project Manager, upon completion of the Project before Final Payment. (d) All Contract Documents are the property of the Owner and shall not be used by the Contractor for any purpose other than the Work to be performed under the Contract. At Final Acceptance, all Shop Drawings and Record Drawings, including all material in electronic format shall become the property of the Owner. The Contractor will be permitted to maintain a copy of the Drawings, Specifications and Shop Drawings as necessary to maintain a Contract record file. (e) The Contractor shall prepare and keep current a schedule of submittals that shall note all required submittals, submittal dates, required approval dates, and all required delivery dates. 19.8 OPERATING MANUALS AND PARTS LISTS: The Contractor shall submit four (4) complete operating manuals and parts lists to the Project Engineer, or Project Manager, for all items of mechanical and electrical equipment incorporated into the Work. 19.9 CONFORMITY WITH PLANS AND ALLOWABLE DEVIATIONS: Finished surfaces shall conform with lines, grades, cross sections and dimensions shown on the Approved Plans. Any deviation from the Plans and working drawings, as may be required by the demands of construction, will in all cases be determined by the Project Engineer, or Project Manager, and authorized in writing. 19.10 COORDINATION OF SPECIFICATIONS, PLANS AND SPECIAL PROVISIONS: The Specifications, the Plans, Special Provisions, and all supplementary Plans and documents are essential parts of the Contract, and a requirement occurring in one is as binding as though occurring in all. They are intended to be cooperative to describe and provide for a complete Work. In case of discrepancy, figured dimensions, unless obviously incorrect, shall govern over scaled dimensions. Plans shall govern over Specifications and Special Provisions shall govern over both Plans and Specifications. The Contractor shall not use to his advantage any apparent error or omission in the Plans or Specifications. In the event the Contractor discovers any apparent error or discrepancy, he shall immediately call upon the Project Engineer, or Project Manager, for his interpretation and decision and such decision shall be final. In the event contradiction and/or conflicts occur in the Specifications not otherwise covered by Special Provisions, the Specifications deemed by the Project Engineer, or Project Manager, to be most restrictive shall govern. 19.11 OWNERSHIP OF WORK PRODUCT: Contractor acknowledges that the Work Product and the copyright interest therein are owned by Owner. Contractor shall not be entitled to use the Work Product in connection with any construction other than the Project, and upon the completion of the Work or the termination of the Contract, Contractor shall return to Architect, at its request, all copies of the Work Product except one (1) signed record set of Construction Documents. Any technical models and/or computer files shall be the property of the Owner. Article 20. RIGHT-OF-WAY 20.1 ACQUISITION OF RIGHT-OF-WAY: Before issuance of Notice to Proceed, the Owner shall obtain all land and right-of-way necessary for carrying out and completion of the Work to be performed pursuant to the Contract, unless otherwise mutually agreed. The Owner shall provide to the Contractor information that delineates and describes the lands owned and rights-of-way acquired, when necessary. The Contractor shall confine its operations within the areas designated by the Project Engineer, or Project Manager. 20.2 ACCESS TO RIGHT-OF-WAY: The Owner will make best efforts to provide right of access to all places necessary for the performance of the Work in a timely manner. The Owner will not be liable to Contractor for any delay in providing access for reasons outside the Owner’s control. Nothing contained in the Contract shall give the Contractor exclusive occupancy of the area provided by the Owner. The Owner, other contractors of the Owner and utility companies may enter upon or occupy portions of the land furnished by the Owner for any purpose, but without unreasonably interfering with the completion of the Project. Joint occupancy or use of the territory shall not be the basis of any claim for delay or damages. If any part of the Project requires Work within the right-of-way of a roadway under the jurisdiction of the Colorado Department of Transportation (CDOT) the Contractor shall obtain the necessary permits from CDOT to perform such Work. The Contractor shall conform to all the requirements and restrictions indicated on the permit. The Contractor shall restore the area to its original condition, including reseeding if necessary, at the completion of the Project. The Contractor’s equipment shall not be stored on any traveled highway. 20.3 RIGHTS-OF-WAY: The Owner shall furnish all lands and rights-of-way required for completion of this Contract. In acquiring rights-of-way, the Owner will proceed as expeditiously as possible, but in the event all rights- Page 431 of 436 62 of-way or easements are not acquired prior to the beginning of construction, the Contractor shall begin Work on such lands and rights-of-way as have been acquired. No claim for damage will be allowed or shall be made by reason of the Owner's delay in obtaining lands, easements or rights-of-way. In the event of litigation or other delays in acquiring rights-of-way, the time allowed herein for completion will be extended to compensate for the time actually lost by such delay. Article 21. SUBMITTALS 21.1 SCHEDULE OF SUBMITTALS: Within thirty (30) days after the date of this Contract, Contractor and Engineer shall jointly prepare a schedule for submittals of shop drawings, samples, schedules and other submittals to be made by the Contractor, the review thereof by Engineer, and responses and resubmittals by Contractor based on the Engineer’s review. Contractor shall incorporate such schedule into the Project Schedule. 21.2 SCOPE OF ENGINEER’S REVIEW: Engineer shall review Contractor’s submittals of shop drawings, samples, schedules and other documents related to items to be incorporated in the Work for aesthetic effect. Contractor shall be responsible to ensure that such submittals conform to the Contract Documents, and the approval of such submittals by Engineer shall not relieve the Contractor from responsibility for any deviation of such submittals from the Contract Documents unless the Contractor gives the Engineer specific written notice of such deviation together with such submittal, nor shall it relieve the Contractor from responsibility for errors and omissions contained in such submittals. 21.3 REVIEW PROCESS: The review of Contractor’s submittals shall be conducted in accordance with the provisions of the specifications contained in the Construction Documents. Such specifications will be based on the Standards Article 22. NOTICES Notices required in this Contract shall be deemed to have been delivered five (5) business days after actual date of Notice of Award after having been placed in the U.S. mails, sent by certified mail, return receipt requested, addressed as set forth in the Contract Award page hereof, or to such other addresses as the parties may mutually designate in writing. All such notices shall be delivered to the parties at the addresses provided in the Agreement or at such other address as Contractor, Owner or Architect may determine for itself by notice given to the other parties. Each notice shall be deemed effective when actually delivered to the address for the party or delivery at such address is tendered and refused or, if the party has multiple addresses, when either actually delivered to, or delivery is tendered and refused at, each of the addresses for the party. Notwithstanding anything to the contrary herein, meeting notes and minutes prepared by Contractor shall not constitute notice of any fact regarding which notice is permitted or required to be given under the Contract, regardless of how such notes and minutes are delivered. Article 23. OWNER’S GENERAL RESPONSIBILITIES 23.1 OWNER PERFORMANCE: The Owner will furnish the data, perform acts, and make payments as required by the Contract Documents. The Owner shall not supervise, direct, or have authority or control over, nor be responsible for, the Contractor’s means, methods, techniques, sequences, or procedures of construction or safety precautions, or any failure of the Contractor to comply with any laws or regulations applicable to the Work. The Owner will not be responsible for the Contractor’s failure to perform or furnish the Work in accordance with the Contract Documents. The Owner’s promise to pay for the Work that the Contractor promises to perform is limited by the Owner’s Charter and its ordinances. A payment obligation of the Owner under this Contract, whether direct or contingent, shall extend only to funds appropriated by the Owner Council for the purpose of the Contract, encumbered for the purpose of the Contract and paid into the Owner or otherwise lawfully made available by the Owner. Unless authorized by law, (i) the Owner does not by this Contract irrevocably pledge present cash reserves for payments in future fiscal years, and (ii) this Contract is not intended to create a multiple-fiscal year direct or indirect debt or financial obligation of the Owner. Other limitations are found in the law that the Contractor is presumed to know. Three such limitations on payment are listed below: a) Under no circumstances will the Owner be liable for any extra Work that has not been authorized by a properly executed Change Order or Field Order. b) No Change Order, Field Order, or other form of directive to the Contractor shall be issued, and no such order or directive shall be binding if issued, if: (i) it would directly cause the aggregate amount payable under the Contract to exceed the amount appropriated or otherwise lawfully made available for the Contract, or (ii) it would require the Contractor to perform additional compensable work which would cause the aggregate amount payable to exceed such appropriated or provided amount. Page 432 of 436 63 c) It shall be the Contractor’s responsibility to verify that the amounts already appropriated or otherwise made available for the Contract are sufficient to cover the entire costs of the Work. Any work undertaken or performed in excess of the amount appropriated or otherwise made available is undertaken or performed in violation of the terms of the Contract, without the proper authorization, and at the Contractor’s own risk. Any limitations on the sources of funding for payments made under the Contract are stated in the Contract Documents. 23.2 PROJECT ENGINEER, OR PROJECT MANAGER: The Project Engineer, or Project Manager, is designated by the Owner to exercise all authority on its behalf under the Contract and to see that the Project is completed according to the Contract Documents. The Project Engineer, or Project Manager, may be changed by written notice to the Contractor. The Project Engineer, or Project Manager, may assume exclusive control of the performance of the Contractor in the case of non-performance or if there is an imminent threat to life or safety of persons or property. The Project Engineer, or Project Manager, will furnish all explanations, directions, stakes or markers, and inspections necessary to carry out and complete the Project. No inspection, explanation or direction by the Project Engineer, or Project Manager, shall be deemed authority for Contractor to deviate from the requirement that the Work be performed in accord with the Contract Documents. 23.3 RIGHT TO BAR PERSONS FROM THE WORK OR SITE: The Owner reserves the right to bar any person, including employees of the Contractor and Subcontractors, from the Work site by order of the Project Engineer, or Project Manager. This shall not be treated as a request for the employee’s termination but a request that the employee not be assigned to work on the Owner Work site. No increase in contract time or price is authorized as a result of the Owner’s exercise of this section. 23.4 ACCESS TO WORK: The Owner, its representatives, and participating federal or state agencies and other public authorities having jurisdiction established by law shall have access to the Project and Work site at any time for any purposes, including without limitation inspection, sampling, and testing. The Contractor shall provide proper facilities for access to the Project. Access means wherever and whenever the Work is in manufacture, preparation or progress and includes access to payrolls, records of personnel not protected from disclosure by law, invoices of materials, terms and conditions of sale of materials and equipment to be incorporated in the Project, files, records, books, correspondence, instructions, Drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and any other relevant data and records relating to the Contract. The Owner may, at reasonable times, inspect the part of the plant, place of business or worksite of the Contractor or Subcontractor at any tier that is pertinent to the performance of the Contract. 23.5 INSPECTION: The Owner shall appoint Inspectors to inspect the Project. Inspection may extend to all or any part of the Work. Inspectors are not authorized to alter any Contract Documents or to delay the fulfillment of the Contract by failure to inspect materials and Work with reasonable promptness. Inspectors are not authorized to act as foreman for the Contractor. Article 24. CONCEALED CONDITIONS 24.1 DISCOVERY OF CONCEALED PHYSICAL CONDITIONS: In the event Contractor encounters subsurface or otherwise concealed physical conditions that differ materially from those conditions reasonably inferable from observations of the exposed surfaces of the Site and reports, surveys, assessments, record drawings and other information furnished by Owner or obtained by Contractor, Contractor shall provide Engineer and Owner notice thereof within two (2) business days after first discovering the same and shall suspend those portions of the Work that conflict with such conditions until receipt of further directions from Owner. 24.2 INSPECTION AND DRAWING UPDATE: Contractor and Owner shall inspect and evaluate such conditions, and Owner shall cause the Project Engineer, or Project Manager, if necessary, to prepare appropriate supplemental drawings or instructions to address or accommodate the conditions discovered. 24.3 DELAYS: Delay resulting from the suspension of Work pending the investigation of unforeseen concealed conditions shall be an Owner Delay, but only to the extent that the same causes actual delay in the critical path to complete the Work that satisfies all the requirements necessary to be an Owner Delay under Section 3.4.1 and all the requirements of Section 15.1.5 below. Page 433 of 436 64 24.4 CHANGE ORDER: If the actions necessary to address such conditions of the Site increase the Cost of Work or adversely impact the critical path to completion of the Work, Contractor may request that an Agreed Change or Change Directive be issued for changes in the Work reflected in the supplemental drawings or instructions prepared to address such conditions, subject to the provisions of Section 15.1.5 below. 24.5 COSTS 24.5.1 Reasonable Inference - Notwithstanding anything to the contrary provided herein, Contractor shall not be entitled to any increase in the Contract Sum or extension of the Milestone Schedule, nor shall any Owner Delay be deemed to have occurred, on account of any condition of the Site that was indicated in or reasonably inferable from (i) observations of the exposed surfaces of the Site and reports, surveys, assessments, record drawings and other information furnished by Owner or obtained by Contractor, (ii) a thorough inspection of the Site prior to the commencement of the Work (regardless of whether such thorough inspection was actually conducted), or (iii) other information and documents furnished to Contractor by Owner or others. 24.5.2 GMGC Agreement - If the Agreement is a GMGC Agreement, increases in the Cost of Work (and any associated Construction Fee and General Conditions fee, if applicable) in connection with any Agreed Change or Change Directive under Section 15.1.4 shall be charged to the Contingency, and an increase in the Guaranteed Maximum Price shall be allowed, if at all, only to the extent that such costs exceed the balance of the Contingency. 24.5.3 Disputes - Any dispute as to whether Contractor is entitled to receive an increase in the Contract Sum or extension of the Milestone Schedule on account of concealed conditions of the Site shall be a Dispute and shall, at the request of either Contractor or Owner, be submitted to Dispute Resolution. Article 25. WAIVER 25.1 WAIVER: The waiver of any breach of a term, provision or requirement of this Contract, including the failure to insist on strict compliance or to enforce any right or remedy, shall not be construed or deemed as a waiver of: any subsequent breach of such term, provision or requirement or of any other term, provision or requirement; any right to insist on strict compliance with any term, provision or requirement; or any right to enforce any right or remedy with respect to that breach or any other prior, contemporaneous, or subsequent breach. 25.2 NO WAIVER: No inspection by the Project Engineer, or Project Manager, any other person acting on the Owner's behalf, nor any order, measurement, estimate or certificate by the Architect, nor any order by the Owner for the payment of money, nor any payment for or acceptance of any Work, nor any extension of time, nor any possession taken by the Owner, shall operate as a waiver of any right of Owner arising out of or related to the Contract. No waiver of any breach of the Contract shall be construed as a waiver of any other or subsequent breach thereof. Article 26. OTHER CONDITIONS 26.1 BINDING CONTRACT: The Contractor binds itself, its partners, successors, assigns and legal representatives to the other party to this Contract and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Contract. The Contractor shall not transfer, assign, or subcontract any interest in this Contract. It is agreed that this Contract shall be binding on and inure to the benefit of the parties hereto, their heirs, executors, administrators, assigns, and successors. 26.2 LEGISLATIVE OR JUDICIAL DECISIONS: If any provision of this Contract is subsequently declared by legislative or judicial authority to be unlawful, unenforceable, or not in accordance with applicable laws, statutes, and regulations of the United States of America and the State of Colorado, all other provisions of this Contract shall remain in full force and effect. 26.3 SUPERSEDING: This Contract represents the entire and integrated Agreement between the Owner and the Contractor and supersedes all prior negotiations, representations or agreements, either written or oral. This agreement may be amended only by written instrument signed by both Owner and Contractor. 26.4 PROFESSIONAL STANDARDS: Services and Work performed by Contractor under this Contract shall conform to reasonable and normal professional standards and the Contractor shall conduct himself at all times in a manner consistent with industry standards. 26.5 NOTIFICATION IN WRITING: No assignment of any claim or proceeds under this Contract shall be binding Page 434 of 436 65 upon the Owner unless it shall be first notified thereof in writing. 26.6 HEADINGS FOR REFERENCE ONLY: The headings of the article, clauses, and paragraphs of this Contract are inserted for reference purposes only and are not restrictive as to content. 26.7 ONE INSTRUMENT: This Contract and any subsequent amendment shall be deemed an original having identical legal effect, and all of which together constitute one and the same instrument. 26.8 THIRD PARTY CLAIMS: Nothing contained herein shall be deemed to give any third party any claim or right of action against the Owner which does not otherwise exist without regard to this Contract. 26.9 CALENDAR DAYS: Wherever a number of days is specified in this Contract it shall mean calendar days unless otherwise specified. 26.10 WRITTEN CONSENT: This Contract shall not be assigned, in whole or in part, without the written consent of the Owner and Contractor. 26.11 REALLOCATION OF RESOURCES: When a delay on any aspect of the Work occurs, the Contractor, to the maximum extent possible, shall utilize his resources elsewhere on the project. If the Contractor, after complying the maximum extent possible by the reassignment of his labor force, equipment and materials, alleges to have suffered damages due to delay, and the delay is caused in whole or in part by acts or omissions within the control of the Owner or persons acting on its behalf, then such a claim shall be treated as a change order request and shall be processed in accordance with the change order, audit and inspection requirements specified in the General Provisions or it shall be deemed forever waived. Nothing herein contained shall be interpreted so as to allow the Contractor to recover delay damages from the Owner for delays caused by acts of God, the acts or omissions of the Contractor, its subcontractors, employees or agents, or persons over which the Owner has no control. 26.12 DISCLOSURE OF CONFIDENTIAL INFORMATION: The Owner is a municipality organized within the State of Colorado, and as such is subject to the Colorado Open Records Act, C.R.S. 24-72-201 et. seq (CORA). All Contract Documents, and any documents or reports produced pursuant to this Contract, may be subject to public disclosure. In the event that a party to this Contract receives an Open Records request, they shall notify the other party to this Contract. Contractor may act to protect and defend any of Contractor’s information disclosed to the City and labeled with a recognized privilege against disclosure. 26.13 AUDIT 27.1.1 Records and Reports - The Contractor shall keep and maintain and shall cause its Subcontractors, Suppliers and outside consultants to keep and maintain books, records, accounts and other documents (“records”) that are sufficient to accurately and completely reflect all costs incurred pursuant to the Contract that may be the basis of a Contractor Change Request or a claim by the Contractor. Such records may include the Proposal estimate, receipts, memoranda, vouchers, and accounts of every kind and nature pertaining to the performance of the Work including but not limited to job cost ledgers, invoices from and payments to Subcontractors, Suppliers and materialmen, and records of home and field office overhead, as well as complete summaries and reports setting forth all reimbursable man hours expended and payroll records. All such records shall be maintained for a period of three (3) years from the date of Final Payment under the Contract in which the Work is completed. All Subcontractors shall keep and preserve such records accounts for a period of three (3) years from the date of Final Payment under the subcontract. 27.1.2 Access - The Contractor shall permit the Owner and the its auditors to have access to such records and any information or areas as provided in these General Conditions for the purpose of making such financial audits, or verifications as the Owner deems necessary or appropriate concerning the Contractor’s performance under the Contract. Access will be provided at the Contractor’s regular place of business in Colorado at reasonable times and upon reasonable notice. 26.14 FEDERAL AID PROVISIONS: When the United States of America, acting through any of its duly constituted departments or agencies, provides funds to pay for any portion of the costs of Work performed under the Contract, the provisions of the Constitution, Laws of the United States and the rules and regulations promulgated by the department or agency thereof, pertaining to the utilization of such funds, shall be incorporated by reference as a part of the terms and conditions of the Contract and shall be observed by the Contractor. When the United States of America is involved as a result of providing funds to support the Work of the Contract, it may assign observers or inspectors as it deems necessary to ensure that purposes for which the funds were provided are achieved. However, such activity by the United States does not make it a party to the Contract and shall not interfere with the rights of either the Owner or the Contractor. Page 435 of 436 66 26.15 DUTIES & REMEDIES: The duties and obligations imposed by, and rights and remedies available under, the Contract Documents shall be in addition to, and shall not be in any way construed to be a limitation of, any duties, obligations, rights, and remedies imposed by or available by law or contract. 26.16 SURVIVAL: All representations, warranties, and guarantees made in the Contract Documents shall survive Final Payment, Final Acceptance, and termination of the Contract for any reason. 26.17 GOVERNMENT IMMUNITY: The City is relying on, and does not waive or intend to waive by any provision of this Contract, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, §24-10-101, et seq., 10 C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. 26.18 CONSTRUCTION: The provisions of the Contract shall be construed as to the ordinary meaning of the words used so as to fairly accomplish the purposes and intentions of all Parties, and not for or against any party based upon any attributes to such party of the source of the language in question. No term of this Agreement will be construed or resolved in favor of or against the Owner or Contractor on the basis of which party drafted the uncertain or ambiguous language. Where appropriate, the singular includes the plural and neutral words and words of any gender will include the neutral and other gender. All headings, captions and titles are for convenience and reference only and of no meaning in the interpretation or effect of the Contract. 26.19 NO IMPLIED REPRESENTATIONS: No representations, agreements, covenant, warranties, or certifications, express or implied, exist as between the Parties, except as specifically set forth in the Contract. 26.20 FINANCIAL OBLIGATIONS OF OWNER: All financial obligations of the City under the Contract are contingent upon appropriation, budgeting, and availability of specific funds to discharge such obligations. Nothing in the Contract shall be deemed a pledge of the City's credit, or a payment guarantee by the City to the Contractor. 26.21 ASSIGNMENT / TRANSFERENCE: The Contractor may not assign or transfer any interest in the Contract, including any money due or to become due, without the express prior written consent of the City. 26.22 AMENDMENTS: The Parties shall only amend the Contract in writing with the proper official signatures and, if required elsewhere in this Contract, on the proper forms. 26.23 NO THIRD-PARTY BENEFICIARIES: The enforcement of the terms and conditions of the Contract and all rights of action relating to such enforcement shall be strictly reserved to the Parties. The Parties expressly intend that any person other than the Owner and the Contractor shall be deemed to be only an incidental beneficiary under this Agreement. 26.24 INDEPENDENT CONTRACT – NO PARTNERSHIP OR AGENCY: Notwithstanding any language in the Contract Documents or any representation or warranty to the contrary, the relationship between the Contractor and the Owner shall be as independent contractors, and neither the Owner nor the Contractor shall be deemed or constitute an employee, servant, agent, partner or joint venture of the other. The Contractor is obligated to pay federal and state income tax on any money earned pursuant to this Contract, and neither the Contractor nor its employees, agents, or representatives are entitled to workers’ compensation benefits unemployment compensation benefits, sick and annual leave benefits, medical insurance, life insurance, or pension or retirement benefits from the Owner. 26.25 GOVERNING LAW, JURISDICTION, VENUE: This Contract, and any amendments hereto are governed and to be construed according to the laws of the State of Colorado without regard to its conflicts of laws provisions. For all claims arising out of or related to this Contract, the Contractor consents to the jurisdiction of and exclusive venue in the state courts in the County of Arapahoe, State of Colorado. Contractor waives any exception to jurisdiction because of residence, including any right of removal based on diversity of citizenship. 26.26 ATTORNEY’S FEES AND COSTS: The prevailing party in any litigation to resolve a dispute between the Parties arising from this Contract will be entitled to recover court costs and reasonable attorney fees from the non-prevailing party. Page 436 of 436