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HomeMy WebLinkAbout2020-09-08 (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. Teleconferenced Englewood, CO 80110 AGENDA City Council Regular Meeting Tuesday, September 8, 2020 ♦ 6:00 PM City Offices will be closed on September 7, 2020, for the Labor Day Holiday. The City Council Meeting will be held on Tuesday, September 8, 2020. 1. Call to Order 2. Pledge of Allegiance 3. Roll Call 4. Study Session Topic a. Communications Director Chris Harguth and the Communications Department will be present to update Council on major ongoing initiatives and projects. Presentation: 20 minutes Discussion: 30 minutes Pdf 5. Consideration of Minutes of Previous Session a. Minutes of the Regular City Council Meeting of August 17, 2020. Teleconferenced City Council Special Regular - 17 Aug 2020 - Minutes - Pdf 6. Appointments, Communications, Proclamations, and Recognition a. 2020 Citizen of the Year Proclamation 2020 Citizen of the Year Proclamation Chiles Freidman nomination 7. 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. Eric Dunker and Julie Beggs will address Council regarding a new partnership with Englewood to assist displaced workers into pathways for new employment. b. Kevin Fasing, an Englewood resident, will address Council regarding responsible land use during a crisis in housing affordability. c. Kathleen Bailey, an Englewood resident, has submitted a written public comment. K.Bailey Public Statement 9.8.20 8. Recognition of Unscheduled Public Comment Page 1 of 206 Englewood City Council Regular Agenda September 8, 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, September 8th, please visit https://englewoodco.zoom.us/webinar/register/WN_HGvqqP-WRYKM1A4WmoAgxg 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. Wednesday, September 9. 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. 9. Consent Agenda Items a. Approval of Ordinances on First Reading b. Approval of Ordinances on Second Reading. c. Resolutions and Motions i. Resolution to approve a salary increase for the Municipal Court Judge Pdf A Resolution approving a 2.5% salary adjustment for the Municipal Court Judge to go into effect at the first pay period in January 2021. Staff: Municipal Court Judge Joe Jefferson ii. Resolution to approve a salary increase for the City Attorney Pdf A Resolution approving a 2.5% salary adjustment for the City Attorney to go into effect at the first pay period in January 2021. Staff: Human Resources Director Ronda Henger iii. Resolution to approve a salary increase for the City Manager Pdf A Resolution approving a 2.5% salary adjustment for the City Manager to go into effect at the first pay period in January 2021. Staff: Human Resources Director Ronda Henger iv. Renewal of 2019 Alley Grading & Stabilization Contract with Colt & Steel Corporation Pdf Page 2 of 206 Englewood City Council Regular Agenda September 8, 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. Staff recommends City Council approve, by Motion, a Supplemental Agreement to the 2019 Alley Grading & Stabilization contract with Colt & Steel Corporation (Colt & Steel) to perform Zone 1 alley maintenance, in the amount of $392,735.65. Staff: Capital Projects and Engineering Manager Tim Hoos and Capital Project Engineer Jacob Warren 10. Public Hearing Items a. Public Hearing for Amendments to Englewood Municipal Code Title 16, Chapter 4 - Floodplain Regulations Pdf 11. Ordinances, Resolutions and Motions a. Approval of Ordinances on First Reading b. Approval of Ordinances on Second Reading i. CB 32 - Valley Sanitation District has a need for a 3/4 inch water line located at Centennial Park. Pdf Staff recommends City Council approve, by Ordinance, for the Grant of Water Line Easement at Centennial Park. Staff: Open Space Manager Dave Lee c. Resolutions and Motions i. Resolution authorizing the application for grant funds from identified grantor authorities Pdf Staff recommends City Council approve, by Resolution, to authorize the application for grant funds from identified grantor authorities. Staff: Director of Finance Maria Sobota ii. Resolution authorizing submittal of a grant application to the Bureau of Reclamation. Pdf Staff recommends City Council approve, by Resolution, to authorize submittal of a grant application to the Bureau of Reclamation in the amount of $500,000 to provide financial assistance for converting flat rate water customers to metered service. Staff: Deputy Director of Utilities Steve Simon iii. Change of Life and Supplemental Insurance Plan from Voya to Unum Staff: Human Resources Director Ronda Henger Pdf Staff recommends City Council approve, by Motion, the Unum Life & Supplemental Insurance contract. Staff: Human Resources Director Ronda Henger iv. Ultimate Software Benefits module Pdf Staff recommends City Council approve, by Motion, the Benefits Prime Contract. Page 3 of 206 Englewood City Council Regular Agenda September 8, 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. Staff: Human Resources Director Ronda Henger 12. General Discussion a. Mayor's Choice i. Executive Session for Attorney Client Communications regarding legal matters arising in association with redevelopment matters. Pdf b. Council Members' Choice 13. Covid-19 Update 14. City Manager’s Report 15. City Attorney’s Report 16. Adjournment Page 4 of 206 STUDY SESSION TO: Mayor and Council FROM: Chris Harguth DEPARTMENT: Communications DATE: September 8, 2020 SUBJECT: Communications Department Update DESCRIPTION: The Communications Department will update Council on major ongoing initiatives and projects in Communications. RECOMMENDATION: Staff welcomes comments and direction regarding projects and initiatives. PREVIOUS COUNCIL ACTION: Council approved the creation of the Communications Department in 2017. SUMMARY: The Communications Department will present and discuss major ongoing initiatives and projects within the three sections of the Communications Department: 1. Marketing & Media Relations 2. Community Relations & Events 3. Neighborhood Resources The attached PowerPoint outlines these projects and initiatives. ANALYSIS: The Communications Department provides a centralized communication sharing strategy for city employees and the community. The Communications Department has a large focus on public outreach. Ongoing public outreach projects include the Englewood Citizen Magazine, which is published quarterly and a video series titled ‘Moments in Englewood History’ (which is posted to our social channels every month). The department is working on several marketing campaigns. Currently, those campaigns include “We’ve Got This,” “Englewood Unleashed’ and “Flow it Forward.” The City of Englewood’s social media following has grown immensely over the past six months. The city has gained hundreds of followers and increased engagement on pages. The website is currently being redesigned and an updated site is scheduled to launch in April 2021. The Neighborhood Resources Program is focused on building strong neighborhoods and communities in Englewood. The program has established relationships with neighborhood group leaders and continues to work with motivated residents to organize their neighborhoods. The NRP has created a grant program and has encouraged neighbors to host small socially distanced get-togethers. Page 5 of 206 FINANCIAL IMPLICATIONS: N/A ATTACHMENTS: PowerPoint Page 6 of 206 Communications Department Update Chris Harguth, Director of Communications Lucia Magnuson, Digital Marketing & Content Specialist Ann Lauricello, Communications Specialist Toni Arnoldy, Community Relations Coordinator Madeline Hinkfuss, Neighborhood Resources Coordinator Page 7 of 206 Flow it Forward o A communications plan has been created o An infographic was published in the spring magazine o 3 postcards have been made and sent to residents o 2 videos were produced and released -History video on water rights and their importance (5k views) -Informational video on the project (3.5k views) Downtown Development Authority o Communications has been working with the DDA committee to execute their communications plan Public Outreach Page 8 of 206 Off-Leash Dog Program o Communications created and has been executing a communications plan o Community survey on Input Now (75 responses) o Weekly social media posts (Facebook Reach:29,002 Engagement: 3,181) o Plastic dog bones with waste bags and flyer given to first offenders Universal Business License o Communications is currently working with Finance on a public information campaign Public Works Education Video Series –Frank on Main o First video (Slurry Sealing had 5,500 views) o Next edition is in production Public Outreach Page 9 of 206 Englewood Citizen Magazine (ongoing) o We’ll continue to publish four, quarterly o A special COVID-19 has been created (publication date TBD) Englewood E-Citizen o City of Englewood monthly email newsletter launched August 3 o 115 Subscribers Moments in Englewood History (ongoing) o We produce these videos monthly and release on the third Thursday of each month Wayfinding and Placemaking Master Plan o Our consultant Architerra presented design concepts to our committee August 26. o The public engagement phase will begin soon Other Projects Page 10 of 206 “We’ve Got This” Economic Recovery Marketing Campaign (ongoing) -Highlights include: o Business storytelling program o Marketing and reopening grants o Stay-Cations promotion o Special edition of the Englewood magazine o Drive-in summer movie/concert series o Englewood Pops (pop up entertainment) o Neighborhood Happy Hour boxes o Downtown banner program and more! Other Projects Page 11 of 206 Community Engagement Task Force -Desired Outcomes 1.Develop a community engagement plan that increases community participation in policymaking, community events, social media, volunteer opportunities, and neighborhood associations; 2.Develop an implementation strategy 3.Identify resource needs Citizen Survey o Survey concluded on July 31 o The NRC will present results to Council this fall Other Projects Page 12 of 206 •Monthly Junction newsletter •e-Citizen •Departmental update emails •Employee surveys Internal Communications Page 13 of 206 •Communications is the city liaison for all non-public safety media inquiries •Assists the Police Department as requested •We monitor the press and send weekly updates to the City Manager and City Council Media Relations Page 14 of 206 •June 15 –City Council approved moving forward with a website re-design at $32,000 •July 6 –With the City Attorney’s approval the agreement was signed •July 22 –Had the kick-off meeting with Granicus NEXT STEPS: •Stakeholder survey for the web committee and council members •Provide graphic design feedback to guide the graphic designer •Community survey that go out to citizens –97 responses •Have a UX meeting to discuss findings and determine steps to move forward DATE TO BE COMPLETED:April 2021 Website Re-design Page 15 of 206 Page 16 of 206 Followers Gained Since January 1, 2020: •Facebook: +724 (Currently 4,614) •Twitter: +207 •LinkedIn: +699 •Instagram: +629 •Nextdoor: Current Count 13,660 Engagement Since January 1, 2020: •Facebook: 68,335 •Twitter: 2,089 •LinkedIn: 2,016 •Instagram: 6,010 •Nextdoor: 2,019 Video Views Since January 1, 2020: •Facebook: 168,889 •Instagram: 4,185 •YouTube: 19,849 Social Media Update Page 17 of 206 •Online town hall platform •Implemented on April 10, 2020 •633 Total Subscribers SURVEYS SO FAR: •Off-Leash Dog Privileges -75 Responses •Temporary Closure to Traffic of the 3400 Block of Broadway –292 Responses •Temporary Street Closures –34 Responses •City of Englewood 2020 Community Survey –259 Responses •OPT-IN City of Englewood 2020 Community Survey –72 Responses •Dartmouth Traffic Calming Corridor –193 Responses Input Now! (POLCO)Page 18 of 206 o Speaking with Neighborhood Group Leaders in 7 different neighborhoods Neighborhood Resources Program Update Page 19 of 206 Get to Know Your Neighbor Grant o 8 applications Good in Englewood o 14 submissions Happy Hour Boxes o 33 delivered Neighborhood Resources Program Update Page 20 of 206 Upcoming Plans: o Upcoming meeting for Neighborhood Group Leaders o Monthly neighborhood newsletter o Block Party Trailer purchased o Create process for neighborhoods registration o Recently launched free mediation service for residents Neighborhood Resources Program Update Page 21 of 206 Thank you! Questions?Page 22 of 206 MINUTES City Council Regular Meeting Monday, August 17, 2020 1000 Englewood Pkwy – Council Chambers 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 Pledge of Allegiance The Pledge of Allegiance was led by Mayor Olson. 3 Roll Call COUNCIL PRESENT: Mayor Linda Olson Mayor Pro Tem Othoniel Sierra Council Member Joe Anderson Council Member Dave Cuesta Council Member Rita Russell, joined at 6:07 p.m. Council Member John Stone Council Member Cheryl Wink COUNCIL ABSENT: None STAFF PRESENT: City Manager Lewis City Attorney McKenney Brown City Clerk Carlile Deputy City Clerk McKinnon Director D'Andrea, Public Works Director Sobota, Finance Director Underhill, Parks, Recreation, and Library Judge Jefferson, Municipal Court Capital Projects and Engineering Manager Hoos, Public Works Network Administrator Hunnicutt, Information Technology Manager of Open Space Lee, Parks, Recreation and Library Maintenance and Operations Manager Ortega, Public Works Community Relations Coordinator Arnoldy, Communications Department Deputy Police Chief Watson, Police Department 4 Study Session Topic Page 1 of 7 Draft Page 23 of 206 City Council Regular August 17, 2020 a) Community Relations Coordinator Toni Arnoldy was present to discuss the nomination and celebration for the 2020 Citizen of the Year. Consensus was reached by Council to bring forward a Proclamation with Chiles Freidman as Citizen of the Year. b) Director of Public Works Maria D'Andrea and Capital Projects and Engineering Manager Tim Hoos were present to discuss recommendations for improvements to the storm water system in the South Drainage Basin. c) Judge Jefferson was present to discuss with City Council a salary adjustment for the Municipal Judge. Consensus was reached by Council to bring a Resolution forward on the Consent Agenda of the Special/Regular City Council meeting of September 8, 2020 to allow a 2.5% salary increase for Judge Jefferson. d) City Council discussed a salary adjustment for the City Attorney. Consensus was reached by Council to bring a Resolution forward on the Consent Agenda of the Special/Regular City Council meeting of September 8, 2020 to allow a 2.5% salary increase for City Attorney Alison McKenney Brown. e) City Council discussed a salary adjustment for the City Manager. Consensus was reached by Council to bring a Resolution forward on the Consent Agenda of the Special/Regular City Council meeting of September 8, 2020 to allow a 2.5% salary increase for City Manager Shawn Lewis. The meeting recessed at 8:02 p.m. for a break. The meeting reconvened at 8:08 p.m. with all Council Members present. 5 Consideration of Minutes of Previous Session a) Minutes of the Regular City Council Meeting of August 3, 2020. Moved by Council Member Othoniel Sierra Seconded by Council Member Joe Anderson APPROVAL OF THE MINUTES OF THE SPECIAL/REGULAR CITY COUNCIL MEETING OF AUGUST 3, 2020. For Against Abstained Linda Olson x Othoniel Sierra (Moved By) x Joe Anderson (Seconded By) x Dave Cuesta x Rita Russell x Cheryl Wink x Page 2 of 7 Draft Page 24 of 206 City Council Regular August 17, 2020 John Stone x 7 0 0 Motion CARRIED. 6 Appointments, Communications, Proclamations, and Recognition a) Resolution appointing Klaralee R. Charlton, Benjamin Todd Figa, and Jonathan Marc Lucero, each to serve a 4-year term as Associate Judge for the City of Englewood, commencing August 17, 2020 and expiring August 16, 2024. Moved by Council Member Othoniel Sierra Seconded by Council Member Cheryl Wink RESOLUTION NO. 23, SERIES OF 2020 A RESOLUTION FOR THE APPOINTMENT OF KLARALEE R. CHARLTON, BENJAMIN TODD FIGA, AND JONATHAN MARC LUCERO, AS ASSOCIATE MUNICIPAL JUDGES FOR THE CITY OF ENGLEWOOD, COLORADO. For Against Abstained Linda Olson x Othoniel Sierra (Moved By) x Joe Anderson x Dave Cuesta x Rita Russell x Cheryl Wink (Seconded By) x John Stone x 7 0 0 Motion CARRIED. 7 Recognition of Scheduled Public Comment There were no speakers scheduled for public comment. 8 Recognition of Unscheduled Public Comment There were no speakers for unscheduled public comment. 9 Consent Agenda Items Moved by Council Member Sierra, seconded by Council Member Anderson to approve Consent Agenda Items 9(b)(i-ii) and 9(c)(i). a) Approval of Ordinances on First Reading Page 3 of 7 Draft Page 25 of 206 City Council Regular August 17, 2020 There were no additional Ordinances on First Reading (See Agenda Item 11 (a)(i).) b) Approval of Ordinances on Second Reading. i) CB 29 - Arapahoe County Open Spaces Grant Award for Romans Park Improvements Phase 2 ORDINANCE NO. 28, SERIES OF 2020 (COUNCIL BILL NO. 29, INTRODUCED BY COUNCIL MEMBER SIERRA). AN ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL GRANT AGREEMENT BETWEEN THE CITY OF ENGLEWOOD, COLORADO AND THE BOARD OF COUNTY COMMISSIONERS OF ARAPAHOE, STATE OF COLORADO, PERTAINING TO THE ROMANS PARK IMPROVEMENTS PHASE II. ii) CB 30 - IGA with Arapahoe County for 2020 Coordinated General Election Services. ORDINANCE NO. 29, SERIES OF 2020 (COUNCIL BILL NO. 30, INTRODUCED BY COUNCIL MEMBER WINK). AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN ARAPAHOE COUNTY CLERK AND RECORDER AND THE CITY OF ENGLEWOOD, COLORADO, TO CONDUCT A COORDINATED ELECTION ON NOVEMBER 3, 2020. c) Resolutions and Motions i) Purchase of two articulating bucket trucks for the Traffic Division. Moved by Council Member Othoniel Sierra Seconded by Council Member Joe Anderson RESOLUTION NO. 24, SERIES OF 2020 A RESOLUTION AWARDING A CONTRACT FOR THE PURCHASE OF TWO DODGE BUCKET TRUCKS FROM ALTEC INDUSTRIES, INC. UNDER THE TERMS OF THE SOURCEWELL/NJPA COOPERATIVE PURCHASING AGREEMENT. Motion to approve Consent Agenda Items 9(b)(i-ii) and 9(c)(i). For Against Abstained Linda Olson x Othoniel Sierra (Moved By) x Joe Anderson (Seconded By) x Page 4 of 7 Draft Page 26 of 206 City Council Regular August 17, 2020 Dave Cuesta x Rita Russell x Cheryl Wink x John Stone x 7 0 0 Motion CARRIED. 10 Public Hearing Items No public hearing was scheduled before Council. 11 Ordinances, Resolutions and Motions a) Approval of Ordinances on First Reading i) CB 32 - Valley Sanitation District has a need for a water line located at Centennial Park. Moved by Council Member Cheryl Wink Seconded by Council Member John Stone COUNCIL BILL NO. 32, INTRODUCED BY COUNCIL MEMBER WINK A BILL FOR AN ORDINANCE GRANTING A WATER LINE EASEMENT TO THE VALLEY SANITATION DISTRICT FOR THE SANITARY SEWER LIFT STATION LOCATED IN THE NORTH PARKING LOT OF CENTENNIAL PARK. For Against Abstained Linda Olson x Othoniel Sierra x Joe Anderson x Dave Cuesta x Rita Russell x Cheryl Wink (Moved By) x John Stone (Seconded By) x 7 0 0 Motion CARRIED. b) Approval of Ordinances on Second Reading There were no additional Ordinances on Second Reading (See Agenda Items 9(b)(i-ii).) Page 5 of 7 Draft Page 27 of 206 City Council Regular August 17, 2020 c) Resolutions and Motions i) Police Headquarters Building Change Order with AP Mountain States, LLC Moved by Council Member Othoniel Sierra Seconded by Council Member Cheryl Wink Approval of a change order with the project contractor, AP Mountain States, LLC (aka Adolfson & Peterson) to address several remaining items related to the Police Headquarters Building Project in the amount of $118,686.00. For Against Abstained Linda Olson x Othoniel Sierra (Moved By) x Joe Anderson x Dave Cuesta x Rita Russell x Cheryl Wink (Seconded By) x John Stone x 7 0 0 Motion CARRIED. 12 General Discussion a) Mayor's Choice b) Council Members' Choice 13 City Manager’s Report a) Staff presented recommendations for Police Reform Task Force for Council input and approval. Consensus was reached by Council to approve the Police Reform Task Force as amended. 14 City Attorney’s Report 15 Adjournment Roll call was taken to adjourn the meeting - Six Ayes, Council Member Russell had already exited the meeting. The meeting adjourned at 9:34 p.m. Page 6 of 7 Draft Page 28 of 206 City Council Regular August 17, 2020 City Clerk Page 7 of 7 Draft Page 29 of 206 P R O C L A M A T I O N Each year the City Council of the City of Englewood, Colorado honors a Citizen of the Year who has made significant contributions to the community of Englewood WHEREAS, Chiles Friedman is a long-time Englewood resident who works ceaselessly and tirelessly for everyone who calls Englewood home. Chiles has devoted countless hours of volunteer service to the City of Englewood; WHEREAS, Mr. Friedman has sacrificially dedicated his time to the City of Englewood through his service over the years; WHEREAS, if Mr. Friedman’s years and hours of volunteer service on Englewood’s were combined, they would total more than two decades of service to the community; WHEREAS, Mr. Friedman is a the person that gathers and mobilizes many other Englewood residents to contribute to these efforts, exponentially multiplying the impact to our community and inspiring us all to work a little harder, do a little more, care a little more. Chiles organized nearly 200 volunteer events in the past three years; and WHEREAS, the Englewood City Council wishes to honor Chiles Friedman for his many contributions to the City and community of Englewood; NOW, THEREFORE, we, the City Council of the City of Englewood, Colorado hereby take great pride in proclaiming Chiles Friedman 2020 Citizen of the Year ADOPTED AND APPROVED this 8th day of September, 2020. Linda Olson, Mayor Page 30 of 206 Name of Nominee: Address of Nominee: Nominee Phone: Nominee Email: Your Name: Phone: Address: Email: Nomination Letter: Page 31 of 206 Documentation of volunteer/philanthropic service: amount of time serving the community, value of service, variety of contribution, impact of service given: Support for nomination: type of support given, groups/individuals supporting nomination: Page 32 of 206 From: Kathleen B <kbecology@hotmail.com> Sent: Monday, August 31, 2020 5:43 PM To: Stephanie Carlile <scarlile@Englewoodco.gov> Cc: Linda Olson <LOlson@Englewoodco.gov>; Othoniel Sierra <OSierra@englewoodco.gov>; Dave Cuesta <dcuesta@englewoodco.gov>; Joe Anderson <JAnderson@englewoodco.gov>; John Stone <JStone@englewoodco.gov>; Cheryl Wink <cwink@englewoodco.gov>; Rita Russell <RRussell@Englewoodco.gov>; Maria D'Andrea <mdandrea@englewoodco.gov> Subject: My 9/08/20 Public City Council Public Statement  9/08/20 Public City Council Meeting Public Statement City Council, July 2018, per City Staff, Englewood experienced a devastating and deadly 50 to 100 year rain event. From June 10, 2019 until the 8/17/20 Study Session, the “majority“ of Council were determined and committed to UPGRADE to a 25 Year Rain Event Capacity Pipe Infrastructure BECAUSE a 25 year rain event capacity infrastructure was the maximum that our City Streets can hold (as compared to the 100 year Rain Event Capacity “currently” sought as the goal around the Country for New Development) And a 25 year rain event capacity was the largest capacity the City can install to reduce the impact of the next 50 to 100 year Rain Event while fully protecting South Englewood Basin residents from 5, 10, and 25 Year Rain Events. Then in Just ONE 8/17/20 STUDY SESSION Staff successfully convinced ALL of you - (Some of you who had expressed you would instal even greater capacity then 25 year rain event capacity if there were room to do so) - that it is not even necessary to replace the existing system - NOT EVEN WITH A 10 YEAR RAIN EVENT SYSTEM LET ALONE A 25 RAIN EVENT SYSTEM! And in a stunning about face, NOW THE GOAL IS TO LEAVE THE EXISTING 45/50 YEAR OLD 2 YEAR RAIN EVENT SYSTEM, AND TWEAK IT SO AS “TO NOT ALLOW ANY MORE THAN 8 INCHES OF SURFACE WATER TO REMAIN ON THE SURFACE” IN THE EVENT OF A 25 YEAR RAIN EVENT!?! So, EXACTLY WHAT RAIN EVENT “CAPACITY“ DOES THIS NEW PLAN PROVIDE “IN AND OF ITSELF“? IT IS NEITHER A 10 YEAR OR 25 YEAR RAIN EVENT SYSTEM. IS IT A 2 YEAR RAIN EVENT SYSTEM UPGRADED TO A 5 YEAR RAIN EVENT SYSTEM? WHAT IS IT? Thank you, Kathleen Bailey District 4 Page 33 of 206 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Joe Jefferson DEPARTMENT: Municipal Court DATE: September 8, 2020 SUBJECT: Resolution to approve a salary increase for the Municipal Court Judge DESCRIPTION: Resolution to approve a salary increase for the Municipal Court Judge RECOMMENDATION: City Council will be asked to approve a 2.5% salary adjustment for the Municipal Court Judge to go into effect at the first pay period in January, 2021. PREVIOUS COUNCIL ACTION: On July 27, 2020, the City Council was provided a municipal court update by Judge Jefferson. On August 17, 2020, the City Council conducted a salary review for the position and determined the Municipal Court Judge shall receive a 2.5% salary increase beginning January 1, 2021. SUMMARY: Article IX, Part II, of the Englewood Home Rule Charter places responsibility for establishing the salary for the Municipal Court Judge with the City Council. ANALYSIS: Not Applicable FINANCIAL IMPLICATIONS: A 2.5% salary increase beginning January 1, 2021 will add $3,739.60 to the 2021 budget. ALTERNATIVES: Not Applicable CONCLUSION: Not Applicable ATTACHMENTS: Resolution Page 34 of 206 RESOLUTION NO. SERIES OF 2020 A RESOLUTION ESTABLISHING THE ANNUAL SALARY FOR THE MUNICIPAL COURT JUDGE OF THE CITY OF ENGLEWOOD, COLORADO. WHEREAS, Article IX, Part II, of the Englewood Home Rule Charter places responsibility for establishing the salary for the Municipal Court Judge with the City Council; WHEREAS, on July 27, 2020, the City Council was provided a municipal court update by Judge Jefferson; WHEREAS, on August 17, 2020, the City Council conducted a salary review for the position and determined the Municipal Court Judge shall receive a 2.5% salary increase beginning January 1, 2021, a salary adjustment of $3,739.60 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section 1. The annual base pay for the Municipal Court Judge shall be $153,323.60 commencing with the first pay period of January, 2021. ADOPTED AND APPROVED this 8th day of September, 2020. ATTEST: _______________________________ Linda Olson, Mayor __________________________________ 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 35 of 206 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Ronda Henger DEPARTMENT: Human Resources DATE: September 8, 2020 SUBJECT: Resolution to approve a salary increase for the City Attorney DESCRIPTION: Resolution to approve a salary increase for the City Attorney RECOMMENDATION: City Council will be asked to approve a 2.5% salary adjustment for the City Attorney to go into effect at the first pay period in January, 2021. PREVIOUS COUNCIL ACTION: On August 3, 2020, the City Council conducted the annual review of the City Attorney. On August 17, 2020, the City Council conducted a salary review for the position and determined the City Attorney shall receive a 2.5% salary increase beginning January 1, 2021. SUMMARY: Article IX, Part I, of the Englewood Home Rule Charter places responsibility for establishing the salary of the City Attorney with the City Council. ANALYSIS: Not Applicable FINANCIAL IMPLICATIONS: A 2.5% salary increase beginning January 1, 2021 will add $4,461.68 to the 2021 budget. ALTERNATIVES: Not Applicable CONCLUSION: Not Applicable ATTACHMENTS: Resolution Page 36 of 206 RESOLUTION NO. SERIES OF 2020 A RESOLUTION ESTABLISHING THE ANNUAL SALARY FOR THE CITY ATTORNEY OF THE CITY OF ENGLEWOOD, COLORADO. WHEREAS, Article IX, Part I, of the Englewood Home Rule Charter places responsibility for establishing the salary of the City Attorney with the City Council; WHEREAS, on August 3, 2020, the City Council conducted the annual review of the City Attorney; and WHEREAS, on August 17, 2020, the City Council conducted a salary review for the position and determined the City Attorney shall receive a 2.5% salary increase beginning January 1, 2021, a salary adjustment of $4,461.68. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section 1. The annual salary for the City Attorney shall be $182,928.80 commencing with the first pay period of January, 2021. ADOPTED AND APPROVED this 8th day of September, 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 37 of 206 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Ronda Henger DEPARTMENT: Human Resources DATE: September 8, 2020 SUBJECT: Resolution to approve a salary increase for the City Manager DESCRIPTION: Resolution to approve a salary increase for the City Manager RECOMMENDATION: City Council will be asked to approve a 2.5% salary adjustment for the City Manager to go into effect at the first pay period in January, 2021. PREVIOUS COUNCIL ACTION: On August 3, 2020, the City Council conducted the annual review of the City Manager. On August 17, 2020, the City Council conducted a salary review for the position and determined the City Manager shall receive a 2.5% salary increase beginning January 1, 2021. SUMMARY: Article VII of the Englewood Home Rule Charter places responsibility for establishing the salary for the City Manager with the City Council. ANALYSIS: Not Applicable FINANCIAL IMPLICATIONS: A 2.5% salary increase beginning January 1, 2021 will add $4,312.51 to the 2021 budget. ALTERNATIVES: Not Applicable CONCLUSION: Not Applicable ATTACHMENTS: Resolution Page 38 of 206 RESOLUTION NO. SERIES OF 2020 A RESOLUTION ESTABLISHING THE ANNUAL SALARY FOR THE CITY MANAGER OF THE CITY OF ENGLEWOOD, COLORADO. WHEREAS, Article VII of the Englewood Home Rule Charter places responsibility for establishing the salary for the City Manager with the City Council; WHEREAS, on August 3, 2020, the City Council conducted the annual review of the City Manager; and WHEREAS, on August 17, 2020, the City Council conducted a salary review for the position and determined the City Manager shall receive a 2.5% salary increase beginning January 1, 2021, a salary adjustment of $4,312.51. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section 1. The annual salary for the City Manager shall be $176,812.73 commencing with the first pay period of January, 2021. ADOPTED AND APPROVED this 8th day of September, 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 39 of 206 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Jacob Warren, Tim Hoos DEPARTMENT: Public Works DATE: September 8, 2020 SUBJECT: Renewal of 2019 Alley Grading & Stabilization Contract with Colt & Steel Corpoation for Zone 1 Work DESCRIPTION: Renewal of 2019 Alley Grading & Stabilization Contract with Colt & Steel Corporation to Perform Zone 1 Work RECOMMENDATION: Staff recommends that the City Council approve, by motion, a Supplemental Agreement to the 2019 Alley Grading & Stabilization contract with Colt & Steel Corporation (Colt & Steel) to perform Zone 1 alley maintenance, in the amount of $392,735.65. PREVIOUS COUNCIL ACTION: On October 21, 2019, the City Council approved a construction contract with Colt & Steel Corp. for the 2019 Alley Grading & Stabilization Project in the amount of $259,208.27. SUMMARY: The City issued an invitation for bids on July 6, 2020 for the 2020 Alley Grading & Stabilization Project. A public Bid Opening was held on July 28, 2020. No bids were submitted to the city. After the bid opening, staff reached out to numerous contractors who had downloaded the bid package to solicit comments & feedback on the bid package. Three contractors responded, including Colt & Steel, and explained that they did not have the workforce available during the project time frame to perform the work. Colt & Steel informed staff that they did not bid the project due to a tight deadline on another project they were working on. They were concerned that they may not be able to complete the work as stipulated by the city's contract time frame, given their commitments to other on-going projects. Staff discussed with Colt & Steel the option of a contract renewal based on the advertised bid package for the 2020 Alley Grading & Stabilization project. Colt & Steel provided unit prices for the 2020 Alley Grading & Stabilization along with a modified schedule. The modified schedule has them completing 75% of the alley grading in 2020 and the remaining 25% in the Spring of 2021. ANALYSIS: The City Council allocated $420,000.00 in the 2020 Capital Improvements program budget for this more extensive alley maintenance work. Page 40 of 206 The original 2019 contract consisted of grading and stabilizing 58 unpaved alleys in Zone 2, (see attached map). The proposed contract renewal for 2020 consists of grading and stabilizing 88 unpaved alleys in Zone 1. The grading is intended to improve the drainage and rideability of the alleys. Then a stabilization product will be sprayed on the surface of the graded alley in order to bind the aggregate particles and decrease permeability of the base which will in turn decrease the amount of rutting, pumping, and erosion that the aggregate undergoes. FINANCIAL IMPLICATIONS: City staff had prepared an Engineer's Estimate for the 2020 work, based upon the unit prices received in 2019. The Engineer's Estimate was $435,315.00. Colt and Steel submitted a proposed price for the 2020 work of $392,735.65 or $42,579.35 less than the Estimate. Total Amount Colt & Steel $392,735.65 Engineer's Estimate $435,315.00 Difference $42,579.35 Staff compared Colt & Steel's 2020 proposed price to their 2019 competitively bid price and found that the proposed price was less expensive on a "per alley" basis. This is to be expected due to the economies of scale involved when comparing a project that included 35,000 lineal feet (LF) of alley grading (2019, Zone 2) to a project that includes 55,000 LF of alley grading (2020, Zone 1). The cost savings is roughly $340 per alley, for a total savings of roughly $30,000 over the unit costs received in 2019. ALTERNATIVES: The alternative is to wait on re-grading the alleys in Zone 1 and re-bid the contract with construction scheduled for Spring and Summer of 2021. The prices received may be more or less than the prices submitted by Colt and Steel. CONCLUSION: Funds for this project, in the amount of $420,000, have been budgeted in the 2020 Capital Project Budget. Colt & Steel's proposed cost of $392,735.65 is less than both 1) the Engineer's Estimate, and 2) the pro-rated cost from their 2019 bid. Staff feels this is a responsible price for this work and recommends that the City Council approve the renewal of the 2019 Alley Grading & Stabilization contract to perform the 2020 scheduled alley maintenance in Zone 1 at a cost of $392,735.65. ATTACHMENTS: Supplemental Agreement 2019 Alley Grading & Stabilization Contract Approval Summary 2020 Contract Renewal Schedule A Statement of Work 2019 Alley Grading and Stabilization Contract Renewal 2019 Alley Grading & Stabilization - Original Contract Pavement Management Zones Alley Grading 2020 Alley Grading & Stabilization - Zone 1 Map & Cross-Section Zone 1 Alley Maintenance - C&S Cost Proposal Zone 1 Proposed Construction Schedule 2019 Alley Grading Stabilization - Contract Renewal Cost Comparison Page 41 of 206 Page 42 of 206 Page 43 of 206 573// P COLT AND STEEL By: Signature res;§Uv\V Date: Page 44 of 206 Contract Approval Summary 9/8/2020 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: Jacob Warren Phone: (303) 762-2517 Title: Capital Projects Engineer Email: jwarren@englewoodco.gov Vendor Contact Information Vendor Name: Colt & Steel Corp. Vendor Contact: James Egan Vendor Address: 2150 W 6th Ave. Vendor Phone: (303) 442-2888 City: Broomfield Vendor Email: jegan@coltandsteel.com State: CO Zip Code: 80020 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: September 2020 End Date: May 2021 Total Years of Term: n/a Total Amount of Contract for term (or estimated amount if based on item pricing): $392,735.65 If Amended: Original Amount $ 259,208.27 Amendment Amount $392,735.65 Total as Amended: $651,943.92 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 2019 Alley Grading & Stabilization project. This contract will have the contractor grading and stabilizing 58 aggregate base alleys in Zone 2. The grading is intended to improve drainage and rideability of the alleys. The stabilization product will bind the aggregate particles and decrease permeability of the base which will in turn decrease the amount of rutting, pumping, and erosion that the aggregate undergoes. Page 45 of 206 Contract Approval Summary 9/8/2020 Page | 2 Source of funds (Insert Excel Document Image): 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 Staff Prepared Bid documents and quantity estimates for the 2020 Alley Grading & Stabilization Project. The project was publicly advertised on July 6th, 2020 and the bid opening was July 28th, 2020. No bids were received. Colt & Steel Corp. provided a cost to perform the work with an adjustment to the schedule. Their proposed schedule has them completing 75% of the alleys before winter and the remaining 25% in April of 2021. Page 46 of 206 SCHEDULE A OUTLINE OF STATEMENT OF WORK 1. GENERAL The City of Englewood is renewing the contract for services of Colt & Steel Corp. to perform alley maintenance. The original contract was to perform alley maintenance in Pavement Management Zone 2, while the renewed contract will have Colt & Steel performing alley maintenance in Pavement Management Zone 1. Alley maintenance includes: grading, adding roadbase, adding asphalt millings, trimming trees, and applying a topical stabilizer. 2. NAMES, PHONE NUMBERS AND EMAILS OF PROJECT COORDINATORS James Egan Jacob Warren Colt & Steel Corp. City of Englewood Project Manager Capital Projects Engineer (303) 442-2888 (303) 762-2517 jegan@coltandsteel.com jwarren@englewoodco.gov 3. SUMMARY OF PURPOSE FOR STATEMENT OF WORK The work to be performed under these documents, the Construction Specifications and the Project Map hereof consists of furnishing all labor, tools, equipment, traffic control, flaggers, materials, and supplies for the grading of alleys, adding roadbase, adding asphalt millings, trimming of trees and bushes, and the application of a soil stabilization. 4. EQUIPMENT AND PROGRAMMING TO BE PROVIDED BY CITY (IF ANY) The City shall provide an operator and loader to load asphalt millings into the Contractor’s hauling equipment. The city shall provide inspection 5. OTHER CONSULTANT RESOURCES N/A 6. DESCRIPTION OF WORK PRODUCT AND DELIVERABLES Alleys will be graded to improve drainage and to remove rutting, potholing, and points of erosion. A soil stabilization product will be applied to improve the drainage and stability of the alley base material. Drainage structures will be adjusted as necessary to accommodate finished grade. Trees and bushes will be trimmed to provide a clear and fully accessible public right of way. The contract line items and estimated quantities for this work are as follows: Page 47 of 206 Item # M&P Item Units Contract Quantity 01 CR 32.01 Mobilization LS 1.00 02 CR 32.02 Alley Grading (11' Wide) LF 55,000 03 CR 32.03 Disposal of Excess Alley Base CY 100 04 CR 32.04 Removal & Disposal of Unsuitable Alley Base CY 600 05 CR 32.05 Recycle Alley Base CY 250 06 CR 32.06 Haul & Place Asphalt Millings CY 400 07 CR 32.07 Furnish & Place Roadway Base TN 400 08 CR 32.08 Aggregate Pan LF 5,000 09 CR 32.09 Apply Soil Stabilizer GAL 26,900 10 CR 32.10 Structure Adjustment (Lowering) EA 5 11 CR 32.11 Structure Adjustment (Raising) EA 10 12 CR 32.12 Tree and Bush Trimming LF 600 13 CR 32.13 Work Zone Traffic Control LS 1 14 CR 32.14 Erosion & Sediment Control LS 1 15 CR 31.0 Minor Contract Revisions EA 10,000 7. SPECIAL TERMS, IF ANY Work shall be completed according to the schedule proposed by the Contractor. This schedule shows a 75% completion by November 15th, 2020 and 100% Completion by April 15th, 2021, This milestone and completion date are contingent on suitable weather conditions. 8. MODE OF PAYMENT Payment will be made by Check or ACH. 9. PAYMENT SCHEDULE Monthly payments will be made upon work completed and accepted by the City of Englewood Project Manager for previous month. 10. SCHEDULE AND PERFORMANCE MILESTONES Colt & Steel shall perform the work according to their submitted proposed schedule. 11. ACCEPTANCE AND TESTING PROCEDURES Per COE Inspection and acceptance. 12. LOCATION OF WORK FACILITIES Vendor at its regular office located at 2150 W 6th Ave., Broomfield, CO 80020 and will conduct substantially all of the work. Page 48 of 206 IN WITNESS WHEREOF, pursuant and in accordance with the Professional Services Agreement between the parties hereto dated _______________, 20__, the parties have executed this Statement of Work as of this ______ day of ________________, 20__. CITY OF ENGLEWOOD, COLORADO By: (Signature) _________________________________ (Print Name) Title: Date: _______________________________ ____________________________________ Consultant Name By: (Signature) _________________________________ (Print Name) Title: Date: _______________________________ Page 49 of 206 Page 50 of 206 Page 51 of 206 Page 52 of 206 Page 53 of 206 Page 54 of 206 Page 55 of 206 Page 56 of 206 Page 57 of 206 Page 58 of 206 Page 59 of 206 Page 60 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 1 CITY OF ENGLEWOOD, COLORADO DEPARTMENT OF PUBLIC WORKS CONSTRUCTION SPECIFICATIONS 2019 Alley Grading and Stabilization ITB No. 19-052 Bid Opening October 9th, 2019 2:00 P.M. Page 61 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 2 TABLE OF CONTENTS FOR CITY OF ENGLEWOOD PROJECT ITB-19-052 2019 Alley Grading and Stabilization General Conditions of the Contract 3 Special Construction Requirements 67 Sample Contract Agreement Form 79 Sample Notice to Proceed Form 86 Sample Change Order Form 87 Page 62 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 3 GENERAL CONDITIONS OF THE CONTRACT TABLE OF CONTENTS Article 1. DEFINITIONS AND INTERPRETATION ......................................................................................... 4 Article 2. PRELIMINARY MATTERS .............................................................................................................. 8 Article 3. PAYMENTS ................................................................................................................................... 10 Article 4. COMPLETION, TIME AND DELAYS IN CONSTRUCTION .......................................................... 17 Article 5. PROJECT AND CONSTRUCTION MANAGEMENT .................................................................... 25 Article 6. CHANGES IN THE WORK ............................................................................................................ 31 Article 7. SUBCONTRACTORS, SUPPLIERS AND PERSONNEL ............................................................. 38 Article 8. INSPECTIONS; CORRECTIONS OF DEFECTS .......................................................................... 41 Article 9. PROTECTION OF PERSONS, PROPERTY AND ENVIRONMENT ............................................. 43 Article 10. PERMITS AND LICENSES; COMPLIANCE WITH CURRENT LAWS ......................................... 49 Article 11. BONDS .......................................................................................................................................... 49 Article 12. WARRANTY .................................................................................................................................. 50 Article 13. INSURANCE; RISK OF LOSS ...................................................................................................... 51 Article 14. INDEMNIFICATION ....................................................................................................................... 53 Article 15. DEFAULTS, REMEDIES AND TERMINATION ............................................................................ 54 Article 16. INDEPENDENT CONTRACTOR ................................................................................................... 56 Article 17. DISPOSAL; HAZARDOUS SUBSTANCES .................................................................................. 56 Article 18. ROYALTIES AND PATENTS ........................................................................................................ 58 Article 19. DRAWINGS, DETAIL AND INSTRUCTIONS ............................................................................... 58 Article 20. RIGHT-OF-WAY ............................................................................................................................ 61 Article 21. SUBMITTALS ................................................................................................................................ 61 Article 22. NOTICES ....................................................................................................................................... 62 Article 23. OWNER’S GENERAL RESPONSIBILITIES ................................................................................. 62 Article 24. CONCEALED CONDITIONS ......................................................................................................... 63 Article 25. WAIVER ......................................................................................................................................... 64 Article 26. OTHER CONDITIONS ................................................................................................................... 64 Page 63 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 4 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. 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. Page 64 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 5 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 Contract 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 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 Page 65 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 6 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 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 Page 66 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 7 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 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 Page 67 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 8 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. 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 Page 68 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 9 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. 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. Page 69 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 10 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 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 Page 70 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 11 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. 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; Page 71 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 12 • 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 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 Page 72 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 13 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 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 Page 73 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 14 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. 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 Page 74 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 15 which shall be added fifteen (15) percent of said actual cost. 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 ten (10) 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 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 Page 75 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 16 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 from governmental entities which become part of the Project and 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 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 Page 76 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 17 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. 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 Page 77 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 18 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 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 Page 78 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 19 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 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. Page 79 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 20 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. 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 Page 80 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 21 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. 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. Page 81 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 22 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; 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. Page 82 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 23 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 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. Page 83 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 24 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. 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 Page 84 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 25 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. 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. Page 85 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 26 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. 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 Page 86 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 27 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. 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 Page 87 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 28 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; 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 Page 88 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 29 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 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. Page 89 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 30 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 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 Page 90 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 31 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 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. Page 91 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 32 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. 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 Page 92 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 33 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 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 Page 93 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 34 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 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. Page 94 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 35 • 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, 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 Page 95 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 36 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. 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 Page 96 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 37 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. • 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 Page 97 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 38 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. 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; Page 98 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 39 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 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. Page 99 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 40 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 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: Page 100 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 41 (a) When applicable, the Contractor shall comply with the Regulations of the Department of 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 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. Page 101 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 42 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 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 Page 102 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 43 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. 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 Page 103 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 44 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. 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. Page 104 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 45 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 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. Page 105 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 46 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 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 Page 106 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 47 (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. 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. Page 107 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 48 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, 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 Page 108 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 49 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, 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 Page 109 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 50 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 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. Page 110 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 51 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. 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. Page 111 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 52 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, 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. Page 112 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 53 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 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 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, Page 113 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 54 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 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 Page 114 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 55 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 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. Page 115 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 56 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 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. Page 116 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 57 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 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 Page 117 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 58 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 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 Page 118 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 59 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 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 Page 119 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 60 the design which are necessary to conform to the provisions and intent of these 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 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 Page 120 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 61 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-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. Page 121 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 62 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. 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. Page 122 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 63 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. 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 Page 123 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 64 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 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 Page 124 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 65 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. 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 Page 125 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 66 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 126 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 67 SPECIAL CONSTRUCTION REQUIREMENTS 1.0 Specification Basis. Engineering specifications for this Project shall be the latest editions of the following except as modified by the Contract Documents for this project and all other local, state and federal requirements; • Design and Construction Standards and Specifications for the City of Englewood, Colorado • City of Englewood Colorado Storm Drainage Criteria Manual • Colorado Department of Transportation Standard Specifications for Road and Bridge Construction, sections 200-700 • Colorado Department of Transportation M&S Standard Plans • Manual on Uniform Traffic Control Devices for Streets and Highways, and the latest revision of the Colorado Supplement thereto. The presence of a conflicting provision in any article, paragraph or subparagraph shall not have any effect on any other provisions of the same article, paragraph, or subparagraph which do not conflict and such other provisions shall remain in full force and effect. The more restrictive provisions shall govern. 2.0 Detailed Plans and Specifications. The detailed plans and specifications designated 2019 Alley Grading and Stabilization and addendum(s) included herein, shall govern the materials to be furnished, and the work to be performed in the execution of the contract. 3.0 Right to Reduce Scope of Contract. The City of Englewood reserves the right to delete portions of the work if the bid exceeds available funding. 4.0 Estimated Quantities. The Contractor shall understand that the quantities set forth on the Bid Schedule are only approximate and that during the progress of the work, the City 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. 5.0 Construction Permits. All construction permits necessary for this project shall be the responsibility of the Contractor to acquire from the City of Englewood, 1000 Englewood Parkway, at no cost or from the Colorado Department of Transportation for projects within Belleview Ave, Federal Blvd. and S. Santa Fe Dr. ROW. 6.0 Substitutions. Substitution of specified materials shall be submitted for review and approval prior to bid opening. 7.0 Traffic Control. All traffic control plans are to be submitted by contractor and approved by the City of Englewood Traffic Engineer prior to the start of construction. TCS shall be present on site (or be available) at all times during the duration of the project. All high profile traffic areas that are identified as critical routes or streets may require alternate traffic control approvals from other entities, as well as abnormal or adjusted work hours. The Engineer and City of Englewood Traffic Division have identified these areas as follows: • N/A 8.0 Closing of Streets. No street or alley shall be closed to the public by the Contractor except as authorized by the 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 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. At least twenty-four (24) hours prior to commencement of work, the Contractor shall furnish and Page 127 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 68 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 Engineer. 9.0 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 Engineer after consultation with the Police and Fire Departments, Traffic Engineer, and in accordance with standard details indicated on plans for this project. 10.0 Street and Traffic Signs. In the event that any stop signs or traffic direction signs are required to be removed during the progress of construction and traffic is permitted across the intersection so affected, the Contractor shall furnish such portable signs or other protection as may be necessary for the proper handling of the traffic, including the furnishing of flagmen at particularly dangerous intersections. No separate payment will be made to the Contractor for this protection. 11.0 School zones: The following locations have been identified as school zones for work on this project. Work at these locations will require additional coordination with the City of Englewood. Contractor may be limited to certain working hours on these alleys. This additional coordination and scheduling effort will not be paid for separately, but shall be included in the total value of the contract. • Alleys accessible from Tufts Ave and Union Ave between Galapago St and Cherokee St • Alleys accessible from Chenango Ave between Elati St and Delaware St 12.0 Staging: The use of City of Englewood’s rights-of-way for staging is strictly forbidden. Staging is defined as the storage of material, equipment, or vehicles outside of the normal working area allowed per the permit. The contractor shall provide for full containment of all labor, material and equipment within the work zone limits, and shall protect adjacent traffic and/ or obtain traffic control if required. 13.0 Floodplain areas. All work located in floodplain identified areas will require contractor to apply for a Floodplain Development Permit from the City of Englewood. Costs for associated permit will be covered by the City of Englewood. Floodplain identified areas for this project are as follows: • N/A 14.0 Superintendence of Work. The Contractor shall provide and maintain continually on the site of the work during its progress, adequate and competent superintendence of all operations for and in connection with the work being performed under this Contract, either personal or by a duly authorized superintendent or other representative. The superintendent or other representative of the Contractor on the work shall be fully authorized to act for the Contractor and to receive direction given by the Engineer. 15.0 Relations With Other Contractors. The Contractor shall cooperate with all other contractors, including construction forces of the City Public Works Department, Utilities Department, and all public utility company forces, who may be performing other work at or in the vicinity of the work hereby contracted. Any conflict which may arise between the Contractor and such other contractors or workmen in regard to their work shall be adjusted as determined by the Engineer. If the work of the Contractor is delayed because of any acts or omissions of other contractors or workmen, the Contractor shall have no claim against the City other than for an extension of time. When work under more than one contractor is being executed at the same time in such a manner that work on one contract may interfere with performance of another contract, the Engineer shall decide which contractor shall continue work and which shall cease work, or whether the work on both contracts shall progress simultaneously and in what manner. The privilege of access for transport of men, equipment or materials from one contract area to another contract area may be granted by the Engineer, to the extent, manner and time which may be reasonably necessary. Page 128 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 69 16.0 Accident Prevention. The Contractor shall give to the Engineer 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 Engineer 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 Engineer 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 Engineer 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 Engineer 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. 17.0 Suggestions to Contractor. Any plan or method of work suggested by the Engineer, or his representative, to the Contractor, shall be used at the risk and responsibility of the Contractor; and the Engineer and the City will assume no responsibility therefore. 18.0 Preconstruction Meeting. A preconstruction meeting shall be held by the contractor with the City of Englewood, the Engineer, and any other project staff to outline and identify the following: • Project Schedule including working hours during the day/week • Traffic control plan • Permit requirements • Coordination and communication protocol • Contractor’s Superintendent including 24//7 contact information • Submittal requirements • Erosion control plan • Final Inspection and Project Closeout Contractor Supervisor must track quantities with City Inspector on site for each location. Total installed bid quantities shall be agreed upon before moving to another location to begin work in order to track project budget for each location. Contractor shall contact any customers of planned service outages or access restrictions at least 48 hours in advance. Contractor shall also distribute City provided door hangers to each of the impacted residences or businesses. The City shall review and approve all material prior to distribution. 19.0 Project Signs. This item shall consist of the manufacture of project signs and their placement at locations designated by the Engineer. They shall be moved from time to time as the work progresses and care shall be taken in their handling to assure their continued good appearance. Damaged or defaced signs shall be replaced at the Contractor’s expense. No payment shall be made for the manufacture, placing, moving, or replacing of these signs. 20.0 Monuments, Benchmarks, Stakes The Contractor shall be held responsible for the proper preservation of all monuments, bench marks, reference points, and stakes. The City of Englewood Engineer will identify these if possible. In the event that the location is not identified in the scope of work , then the contractor shall notify the City of Englewood Engineer immediately to record and approve the removal. Known locations included in this project are as follows: • N/A The Contractor shall provide the following services on an ongoing basis throughout the duration Page 129 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 70 of the project: (a) A contact person for the project shall be designated by the Contractor at the preconstruction conference. This individual shall be primarily responsible for maintaining communications with the City’s designated representative and impacted residents/businesses; provide information on a regular basis to private individuals, local organizations interested in the project and the affected agencies. (b) The following agencies shall be coordinated with on an ongoing basis: City of Englewood Fire Districts- Denver Fire Department Emergency Response- Englewood Police Department Adjacent Businesses/Residents Adjacent Schools and Englewood Public Schools RTD All costs incidental to the foregoing requirements will not be measured and paid for separately, but shall be included in the total value of the contract. Full sidewalk panel replacement required for pothole repair in concrete 21.0 Lowering Water Services. When directed by the Engineer, water services encroaching on construction shall be lowered to conform to requirements of the new cross-section and other construction details. This work shall be performed by the City of Englewood Utilities Department. Any work involving the cutting or tapping of water mains in connection with this item or with other items in the Contract shall be done by the City of Englewood Utilities Department. 22.0 Relocation of Curb Stops and Water Meters. Should either of these items be encountered during the course of construction, proper notice should be given to the Engineer. Upon receipt of notice, the City of Englewood Utilities Department will take immediate steps to remove, relocate or adjust the obstacle. 23.0 Relocation of Fire Hydrants. Fire hydrants which interfere with construction will be relocated by the City of Englewood Utilities Department. 24.0 Utility Adjustments: The contractor shall adjust all manholes, cleanouts and valve boxes to finish grade. 25.0 Holidays: Holidays recognized by the City of Englewood are as follows: • January 1, 2019 New Year’s Day • January 21, 2019 Martin Luther King Jr. Day • February 18, 2019 Presidents Day • May 27, 2019 Memorial Day • July 4, 2019 Independence Day Page 130 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 71 • September 4, 2019 Labor Day • November 11, 2019 Veteran’s Day • November 28, 2019 Thanksgiving Day • November 29, 2019 Day After Thanksgiving • December 25, 2019 Christmas Day When New Year’s Day, Independence Day, or Christmas Day falls on a Sunday, the following Monday shall be considered a holiday. When one of these days falls on a Saturday, the preceding Friday shall be considered a holiday. 26.0 Pay Item Specifications. The following specifications apply directly to bid items. 26.1 ALLEY GRADING (5.5’ WIDE) General This item shall consist of grading and re-compacting alleys to improve drainage and rideability. Construction Requirements The engineer shall provide the contractor points from which to grade to along the length of the alley. Contractor shall grade straight line profiles from point to point, with smooth transitions where crest and sag curves are necessary. Grading shall result in a troughed alley cross-section, with each half of the alley pitched between 2.5% and 4.5% down to the centerline of the alley unless otherwise directed by the Engineer. Contractor shall adjust profile and cross-slope as necessary or as directed by the engineer to match driveway access throughout the alley and to match the cross-section at paved alley entrance aprons. It is the Contractor’s responsibility to contact Utility Notification Center of Colorado (Ph. 1-800-922-1987 or 811); and City Traffic Division (Ph. 303-762-2514) for all utility locates prior to construction. The Contractor shall acquire necessary permits, locate utilities, excavate all materials of whatever character required to expose the utilities, survey the location of the utilities, and backfill the excavation to existing grade lines with the excavated or other approved materials. The Contractor shall use extreme caution during this work. All damage to existing utility lines or adjacent facilities shall be repaired promptly at the Contractor’s expense. This work shall include final placement and grading of any additional roadway base material- whether furnished by the contractor or recycled from another alley- in order to achieve the desired profile and cross-section. Any surplus created by the grading operation shall be hauled off by the end of each day. No spoil piles will be allowed in public right of way after normal working hours unless otherwise approved by the engineer. This work shall include compaction to the satisfaction of the Engineer by means of a vibratory roller. Alley base shall be moist during compaction. Watering of the alley base for compaction shall be at the direction of the engineer. Compaction shall occur until a density of at least 95 percent of the maximum density has been achieved as determined in accordance with AASHTO T 180 as modified by CP 23. The moisture content shall be at ± 2 percent of optimum moisture content. Method of Measurement and Basis of Payment Page 131 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 72 This work shall be paid for as ALLEY GRADING (5.5’ WIDE) at the contract unit price per LINEAL FOOT. ALLEY GRADING (5.5 FT WIDE) shall be measured along the alley centerline. Compaction efforts, including watering, shall not be paid for separately, but shall be included in the contract unit price for ALLEY GRADING (5.5 FT WIDE). The contract unit price shall include any surveying or layout deemed necessary by the contractor to meet the grading requirements directed by the Engineer. Any effort by the contractor necessary to locate utilities shall not be paid for separately, but shall be included in the cost of ALLEY GRADING (5.5’ WIDE). Haul-out and disposal of surplus material will be paid for as REMOVAL OF EXCESS ALLEY MATERIAL. Furnished roadway base material will be paid for as FURNISH ROADWAY BASE. Manhole frame and lid adjustments will be paid for as STRUCTURE ADJUSTMENT. Loading, transporting, and distributing alley base material to be re-used in other alleys shall be paid for as RECYCLE ALLEY BASE. 26.2 FURNISH ROADWAY BASE General This item shall consists of furnishing roadway base material for placement in alleys. Material Furnished aggregate must be CDOT Class 6, according to Article 703.03 of the Colorado Department of Transportation Standard Specifications for Road and Bridge Construction (2017). Construction Requirements Contractor shall deliver material to the site and distribute to designated locations as necessary to meet alley grading requirements. No material shall be stockpiled in city ROW outside normal working hours. Method of Measurement and Basis of Payment This work shall be paid for as FURNISH ROADWAY BASE at the contract unit price per TON for the amount of material used to grade the alleys. The unit price shall include all labor, equipment, and material necessary to complete the work as described herein. Spreading, grading, and compaction of furnished roadway base material shall be included in the cost of ALLEY GRADING (5.5’ WIDE). 26.3 REMOVAL AND DISPOSAL OF EXCESS ALLEY MATERIAL General This item shall consists of removal and disposal of excess alley base material generated by the alley grading operation. Page 132 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 73 Construction Requirements Contractor shall remove excess material in alleys beyond what is necessary to provide desired alley profile in each alley. Contractor shall consolidate material during working hours so as to have minimal impact to the public. Spoils shall be removed before the end of the working day and disposed of offsite by the contractor. Excess clean alley base material that is removed may be reused in other alley locations at the discretion of the engineer. Measurement and Payment This work shall be paid for as REMOVAL AND DISPOSAL OF EXCESS ALLEY MATERIAL per LOAD. This unit price shall include all labor, material, and equipment necessary to complete the work as described herein. When material is designated to be re-used, the associated work shall be paid for as RECYCLE ALLEY BASE. 26.4 RECYCLE ALLEY BASE General This item is intended for the relocation of re-useable alley base material from one alley to another. Construction Requirements At the discretion of the engineer, the contractor shall stockpile excess material generated by alley grading. Where grading requirements in other alleys necessitate additional material, the stockpiled material shall be transported to the alley and used as fill. Stockpiled material shall be clearly and safely cordoned off. Method of Measurement and Basis of Payment This work will be paid for as RECYCLE ROADWAY BASE at the contract unit price per CUBIC YARD. This unit price shall include all labor, material, and equipment necessary to complete the work described herein. Final spreading, grading, and compacting of the recycled material shall be included in the cost of ALLEY GRADING (5.5’ WIDE). 26.5 APPLY SOIL STABILIZATION General This item shall consist of applying a magnesium chloride dust control and soil stabilization product. Material Page 133 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 74 Contractor shall use Envirotech Services, Inc. Durablend™ or approved equivalent. Construction Requirements Contractor, or subcontractor, shall be certified or approved by the manufacturer to apply the product. Contractor shall follow all manufacturer’s recommendations for preparation, rate of application, and follow-up procedures related to the application of the dust control and soil stabilization product unless otherwise approved by the engineer. This shall include additional compaction and watering both before and after application. Delivery Tickets shall be provided to the engineer on a daily basis which verify the quantity of dust control and soil stabilization product actually applied. Tickets shall include the date of delivery, product identification, quantity delivered, and where the material is sourced from. Method of Measurement and Basis of Payment This work shall be paid for as APPLY SOIL STABILIZATION at the contract unit price per GALLON. This unit price shall include all labor, material, and equipment necessary to complete the work described herein. Payment will be contingent upon verification of the specified application rate. 26.6 STRUCTURE ADJUSTMENT (LOWERING) General This work shall consist of adjusting existing utility structure frames and grates to new grades. Material Contractor shall use precast concrete adjusting rings no less than 2” in thickness from a CDOT approved supplier. Contractor shall use a CDOT approved mortar. Construction Requirements Contractor shall excavate around and remove existing frame and lid or frame and grate as well as any deteriorated concrete, bricks, or adjusting rings. A bed of mortar shall be laid on the existing structure to ensure a level surface to set adjusting rings and frames on. The existing frame shall be set to grade at the direction of the engineer. Frame shall be set level unless otherwise directed by the engineer. After the frame is set, mortar will be applied to the inside face of all adjusting rings, such that the entire section between the structure and the frame is continuously sealed. Contractor may backfill around the frame using the excavated material with approval from the engineer. Material designated as unsuitable for backfill shall be disposed of by the contractor. Additional material required for backfill shall be furnished and installed by the contractor. Any material used to backfill around frames shall be compacted to the satisfaction of the engineer. Method of Measurement and Basis of Payment This work shall be paid for as STRUCTURE ADJUSTMENT (LOWERING) at the contract unit price per EACH. This work shall include all labor, material, and equipment necessary to complete the work described herein. The contract unit price shall include any necessary removal of the existing concrete, bricks, or adjusting rings up to 2’ below the bottom of the existing frame. Page 134 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 75 26.7 STRUCTURE ADJUSTMENT (RAISING) General This work shall consist of adjusting existing utility structure frames, rings, and lids to a grade higher than its existing grade. Material Contractor shall use new cast iron or steel risers from a reputable manufacturer. Construction Requirements Contractor shall fully expose the top of the manhole or inlet frame and lid. Contractor shall clear off any debris from the frame and set new riser rings to an elevation as directed by the engineer. Contractor shall use the largest available ring sizes to reach finished grade. Method of Measurement and Basis of Payment This work shall be paid for as STRUCTURE ADJUSTMENT (RAISING) at the contract unit price per EACH. This unit price shall include all labor, material, and equipment necessary to complete the work described herein. The contract unit price shall include any necessary riser rings to bring the finished grade up to 1’ above the existing grade. 26.8 TREE AND BUSH TRIMMING General This work shall consist of trimming miscellaneous bushes and trees that extend out into or over the alley right of way. Construction Requirements Contractor shall trim all trees, bushes, and brush to a line defined by the engineer. Contractor shall trim to a vertical plane from the ground to a height of 15 FT above the ground. Contractor shall remove and dispose of all brush, branches, twigs, leaves, etc. which result from the trimming. Method of Measurement and Basis of Payment This work shall be paid for as TREE AND BUSH TRIMMING at the contract unit price per LINEAL FOOT. This unit price shall include all labor, equipment, and material necessary to complete the work described herein. Measurement shall be made along the horizontal line to which the trees and brush are trimmed to. The endpoints of the line shall be defined by the maximum horizontal distance from one end of a continuous trimming segment to another, regardless of distance above ground. This line may consist of a single plant or a thicket of miscellaneous plants, however only one line will be measured for a given segment. Page 135 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 76 26.9 TRAFFIC CONTROL & PROTECTION General This work shall consist of furnishing, placing, monitoring, and maintaining any and all necessary traffic control equipment for the work included in the contract. Material All signs, barricades, and other traffic control equipment shall conform to applicable portions of the most recent edition of the Manual on Uniform Traffic Control Devices. Construction Requirements Contractor shall determine all equipment necessary to safely execute all work included in the contract. Contractor shall submit a traffic control plan at least 10 days prior to construction. Alleys must remain open to local traffic unless otherwise approved by the engineer. Contractor may close an alley entrance if the following requirements are met: • An alternate alley entrance remains accessible • The contractor provides signage directing traffic to use alternate alley entrance Contractor will be required to post information signs informing the public of the upcoming alley work. Signs shall be posted at each alley entrance 48 hours prior to performing any work in the alley. Signs may be posted on utility poles, barricades, stakes, or other equipment as approved by the engineer. Signs must be water proof and legible from 10’ away. Signs must remain in place until all work is completed at a given alley. Signs must be removed from alley entrances once work on that alley is complete. Signs must contain the following text: City of Englewood 2019 Alley Grading and Stabilization WORK WILL BEGIN ON THIS ALLEY ON <DATE> Method of Measurement and Basis of Payment This work will be paid for as TRAFFIC CONTROL & PROTECTION at the contract unit price per LUMP SUM. This unit price shall include all labor, materials, and equipment necessary to complete the work as described herein. 26.10 EROSION & SEDIMENT CONTROL General Page 136 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 77 This section details the labor, materials and equipment and procedures required to manage erosion and sedimentation from construction sites. All work shall be in conformance with the latest editions of the Englewood Storm Drainage Criteria Manual and Volume 3, Best Management Practices, Drainage Criteria Manual from the Urban Drainage and Flood Control District. Materials Erosion control devises and procedures to be utilized include, but are not limited to; Check Dams Curb Socks Street Sweeping Inlet Protection Sediment Control Log Fuel/Chemical Handling Sanitary Facilities Inlet protection in the right-of-way shall be made from a manufactured, heavy duty geotextile filter bag or sleeve to protect the grate and curb opening and shall be installed to allow overflow into the inlet. Construction Requirements The contractor shall place all erosion control devices as necessary to meet standard Best Management Practices (BMP’s) or as directed by the Engineer. The Contractor shall monitor the performance of the erosion control devices and other (BMP’s) on a regular basis. Inspections shall be made by the contractor at least once every fourteen calendar days and after every rainfall event. Contractor shall adjust, repair or replace all erosion control BMP’s when necessary. The contractor shall be responsible for cleaning all paved areas of mud and debris due to construction activities on a daily basis or as directed by the City of Englewood. Erosion Control BMP’s in and around a given alley shall remain in place and in working condition until final stabilization of the alley is complete. All work shall be completed in conformance with the approved Erosion Control Plan and/or Stormwater Management Plan (SWMP) and the requirements of the Colorado Discharge Permit System (CDPS) along with the City of Englewood Storm Drainage Criteria Manual. No material will be allowed to leave site. All erosion control BMP’s shall be per the latest issue of Volume 3 of the Urban Storm Drainage Criterial Manual. The contractor shall be responsible for cleaning all paved areas of mud and debris due to construction activities on a daily basis or as directed by the City of Englewood. Inlet protection in the right-of-way shall be made from a manufactured, heavy duty geotextile filter bag or sleeve to protect the grate and curb opening and shall be installed to allow overflow into the inlet. Method of Measurement and Basis of Payment This work will be paid for as EROSION & SEDIMENT CONTROL at the contract unit price per LUMP SUM. The unit price shall include all furnishing, erecting, cleaning, maintaining, resetting, repairing, replacing, moving, removing and disposing of the erosion control devices. Page 137 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 78 Payment for EROSION & SEDIMENT CONTROL as a lump sum will be made as a percentage of the total work completed. 27.0 Time of Completion The Contractor shall commence work on the Notice to Proceed Date provided by the City and shall fully complete in every detail all the work to be done under the Contract within 40 consecutive calendar days thereafter, or any extension or extensions thereof as provided for under “Suspension of Work” and “Extension of Time”. This includes an allowance for five (5) weather delay days. A Notice to Proceed is expected to be issued on or about October 28th, 2019. The Contractor shall agree to pay to the Owner, as liquidated damages, the sum of $1,000 for each consecutive calendar day that the work exceeds the allotted contract time. 28.0 Schedule Requirements The contractor shall provide a detailed construction schedule and submit to the City no less than 10 business days prior to commencing work. The City shall have three business days to review and provide comments to the Contractor. The Contractor shall provide a revised/final schedule within two business days. A preliminary construction schedule shall be submitted with the bid. The sequence of construction shall generally follow or include: • Obtain necessary ROW Perrmit type(s) • Obtain utility locates • Install erosion control BMP’s • Set up temporary traffic control • Begin structure adjustments • Begin grading alleys • Begin application of soil stabilization • Complete structure adjustments • Complete grading of Alleys • Complete application of soil stabilization • Remove all erosion control BMP’s • Remove all traffic control Page 138 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 79 CONTRACT CITY OF ENGLEWOOD, COLORADO THIS CONTRACT is, made and entered into this _____ day of ___________, 20__, by and between the City of Englewood, a municipal corporation of the State of Colorado hereinafter referred to as the “City”, and _______________________________________________________, whose address is _________________________________________, (“Contractor”), Commencing on the day of ________ __, 20__, and continuing for at least ten (10) days thereafter the City advertised that sealed bids and proposals would be received for furnishing all labor, tools, supplies, equipment, materials and everything necessary and required for the following: PROJECT: 2019 Alley Grading and Stabilization WHEREAS, proposals pursuant to said advertisement have been received by the City and have been certified by the Director of ________________ and forwarded to the Mayor and City Council with a recommendation that a contract for work be awarded to the above named Contractor who was the lowest reliable and responsible bidder therefore, and WHEREAS, pursuant to said recommendation, the Contract has been awarded to the above named Contractor by the Mayor and City Council and said Contractor is now willing and able to perform all of said work in accordance with said advertisement and the attached proposal. NOW THEREFORE, in consideration of the compensation to be paid and the work to be performed under this contract, the parties mutually agree as follows: A. Contract Documents: 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, and Attachments. All Bid Response Documents Certificate of Insurance Page 139 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 80 B. Scope of Work: The Contractor agrees to and shall furnish all 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. C. Terms of Performance: 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 by 40 consecutive calendar days 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. D. Indemnification: The city cannot 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 shall defend, indemnify and save harmless the City, its officers, agents and employees from any and all claims, demands, suits, actions or proceedings of any kind or nature including Worker’s Compensation claims, in any way resulting from or arising out of this Agreement/Contract: provided, however, that the Contractor need not indemnify or save harmless the City, its officers, agents and employees from damages resulting from the sole negligence of the City’s officers, agents and Employees. E. Termination of Award for Convenience: The City may terminate the award at any time by giving written notice to the Contractor of such termination and specifying the effective date of such termination, at least thirty (30) days before the effective date of such termination. In that event all finished or unfinished service, reports, material (s) prepared or furnished by the Contractor after the award shall, at the option of the City, become its property. If the award is terminated by the City as provided herein, the Contractor will be paid that amount which bears the same ratio to the total compensation as the services actually performed or material furnished bear to the total services/materials the successful firm agreed to perform under this award, less payments of compensation previously made. If the award is terminated due to the fault of the Contractor the clause relating to termination of the award for cause shall apply. F. Termination of Award for Cause: If, through any cause, the Contractor shall fail to fulfill in a timely and proper manner its obligations or if the Contractor shall violate any of the covenants, agreements or stipulations of the award, the City shall have the right to terminate the award by giving written notice to the Contractor of such termination and specifying the effective date of termination. In that event, all furnished or unfinished services, at the option of the City, become its property, and the Contractor shall be entitled to receive just, equitable compensation for any satisfactory work documents, prepared completed or materials as furnished. Notwithstanding the above, the Contractor shall not be relieved of the liability to the City for damages sustained by the City by virtue of breach of the award by the Contractor and the City may withhold any payments to the Contractor for the purpose of set off until such time as the exact amount of damages due the City from the Contractor is determined. G. Terms of Payment: The City agrees to pay the Contractor for the performance of all the work required under this contract, and the Contractor agrees to accept as his full and only compensation therefore, such sum or sums of money as may be proper in accordance with the price or prices set forth in the Contractor’s proposal attached and made a part hereof, the total estimated cost thereof being _______________________________________________ Page 140 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 81 ________________________________________________($___________). A 5% retainage of the awarded project amount will be withheld until final inspection and acceptance by the Project Manager. H. Appropriation of Funds: At present, $________________________ 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 this Agreement/Contract to the contrary, all payment obligations of the City are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the City’s current fiscal period ending upon the next succeeding December 31. Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of the City and applicable law. Upon the failure to appropriate such funds, this Agreement shall be deemed terminated. The City shall immediately notify the Contractor or its assignee of such occurrence in the event of such termination. I. Liquidated Damages: The City and Contractor recognize that time is of the essence in this Agreement because of the public interest in health and safety, and that the City will suffer financial loss, and inconvenience, if the Work is not complete within the time specified in the bid documents, plus any extensions thereof allowed in accordance with the General Conditions. They also recognize the delays, expense and difficulties involved in proving, in a legal proceeding, the actual loss suffered by the City if the Work is not complete on time. Accordingly, instead of requiring any such proof, the City and Contractor agree that as liquidated damages for delay, but not as a penalty, Contractor shall pay the City $1,000.00 for each day that expires after the time specified for substantial completion until the Work is complete, and $1,000.00 for each day that expires after the time specified for final completion until the Work is finally complete. J. Assignment: 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 City 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. K. Contract Binding: 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. L. 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. M. Contractors Guarantee: The Contractor shall guarantee that work and associated incidentals shall remain in good order and repair 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 Page 141 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 82 further compensation. 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 _________ whose decision upon the matter shall be final and obligatory upon the Contractor. N. Governing 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. O. Disclosure of Confidential Information: The City as an arm of the state is subject to the Colorado Open Records Act, C.R.S. 24-72-201 et. seq. In the event that a Disclosing Party receives an Open Records request, the Disclosing Party shall notify the other party to this Contract. VERIFICATION OF COMPLIANCE WITH C.R.S. 8-17.5-101 ET.SEQ. REGARDING HIRING OF ILLEGAL ALIENS (a) Employees, Contractors and Subcontractors: Contractor shall not knowingly employ or contract with an illegal alien to perform work under this Contract. Contractor shall not contract with a subcontractor that fails to certify to the Contractor that the subcontractor will not knowingly employ or contract with an illegal alien to perform work under this Contract. [CRS 8-17.5-102(2)(a)(I) & (II).] (b) Verification: Contractor will participate in either the E-Verify program or the Department program, as defined in C.R.S. 8-17.5-101 (3.3) and 8-17.5-101 (3.7) respectively, in order to confirm the employment eligibility of all employees who are newly hired for employment to perform work under this public contract. Contractor is prohibited from using the E-Verify program or the Department program procedures to undertake pre-employment screening of job applicants while this contract is being performed. (c) Duty to Terminate a Subcontract: If Contractor obtains actual knowledge that a subcontractor performing work under this Contract knowingly employs or contracts with an illegal alien, the Contractor shall: (1) notify the subcontractor and the City within three days that the Contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and (2) terminate the sub-contract with the subcontractor if, within three days of receiving notice required pursuant to this paragraph the subcontractor does not stop employing or contracting with the illegal alien; except that the Contractor shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with the illegal alien. Page 142 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 83 (d) Duty to Comply with State Investigation: Contractor shall comply with any reasonable request of the Colorado Department of Labor and Employment made in the course of an investigation by that the Department is undertaking pursuant to C.R.S. 8-17.5-102 (5). (e) Damages for Breach of Contract: The City may terminate this contract for a breach of contract, in whole or in part, due to Contractor’s breach of any section of this paragraph or provisions required pursuant to C.R.S. 8-17.5-102. Contractor shall be liable for actual and consequential damages to the City in addition to any other legal or equitable remedy the City may be entitled to for a breach of this Contract under this Paragraph. IN WITNESS WHEREOF, the parties hereto have executed this Contract the day and year first written above. CITY OF ENGLEWOOD By: Date: (Department Director) By: ________________________________ Date: ___________________ (City Manager) By: ________________________________ Date: ___________________ (Mayor) ATTEST: (City Clerk) _______________________________ Contractor (print company name) By: _____ Date: (Signature) _______________________________ (Print name and Title) Page 143 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 84 SCHEDULE A OUTLINE OF STATEMENT OF WORK 1. GENERAL 2. NAMES OF PROJECT COORDINATORS 3. SUMMARY OF PURPOSE FOR STATEMENT OF WORK 4. EQUIPMENT AND PROGRAMMING TO BE PROVIDED BY CITY 5. OTHER RESOURCES 6. DESCRIPTION OF WORK PRODUCT AND DELIVERABLES 7. SPECIAL TERMS, IF ANY 8. MODE OF PAYMENT 9. PAYMENT SCHEDULE 10. SCHEDULE AND PERFORMANCE MILESTONES 11. ACCEPTANCE AND TESTING PROCEDURES 12. LOCATION OF WORK FACILITIES Page 144 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 85 IN WITNESS WHEREOF, pursuant and in accordance with the Services Agreement between the parties hereto dated _______________, 20____, the parties have executed this Statement of Work as of this ______ day of __________________, 20____. CITY OF ENGLEWOOD, COLORADO By: (Signature) _____________________________ (Print Name) Title: _______________________________ Date: _______________________________ ____________________________________ Company Name By: __________________________________ (Signature) _________________________________ (Print Name) Title: Date:_______________________________ Page 145 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 86 NOTICE TO PROCEED DATE: TO: RE: Project Name and Number Dear Representative of _________________________: You are hereby notified to commence work on referenced Project, in accordance with the Contract dated _____________ and you are to complete the Work, including cleanup within _______ calendar days thereafter. The date of completion of all Work is therefore . CITY OF ENGLEWOOD, COLORADO ___________________________________ Director of Public Works BIDDER Receipt of this Notice to Proceed is hereby acknowledged this _______day of , 20____. Company By: Title: Page 146 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 87 CHANGE ORDER Date: Change Order #: Project Name: Contract #: Departmen t: PO #: Project Manager: Original Agreement Date: Contractor: Location: CHANGE ORDER TYPE Select the best description of this Change Order (Check one) : Standard Change Order Emergency (Authorization attached) Unforeseen Site Conditions (Justification attached) Substantial (Authorization attached) CONTRACT SUMMARY Original Contract Amount: Original completion date: Previous Change Order(s): Previous change in time: Contract Amount Prior to this Change Order: Completion Date Prior to this Change Order: Page 147 of 206 City of Englewood September 18th, 2019 2019 Alley Grading and Stabilization 88 Amount of this Change Order: Change in contract time: New Contract Amount: New Completion Date: CHANGE ORDER SUMMARY The following changes are hereby made to the contract documents: Ref # Summary Description Change in Contract Price Change in Contract Time Initi ated By: *If the amount of the change order is 10% or more of the original contract, the City Manager must approve. *If the amount of the change order is over $24,999.99 the change order will require City Council approval. PCM: Proposed Contract Modification APPROVALS REQUIRED The parties understand and agree that this Change Order does not amend or change the terms of the original contract/agreement entered into by the parties on: (Original Agreement Date) Approved by Engineer: Date: Accepted by Contractor: Date: *Accepted & Approved by Owner: Date: Page 148 of 206 Zone 2 alley maintenance was contracted under the 2019 Alley Grading & Stabilization Zone 1 alley maintenance is scheduled for 2020 Page 149 of 206 ! ! !!! !! ! ! !!! ! ! !! !!! ! !!! !! ! !! ! ! !!! !!!! !! !! !!! !!! ! !!! ! ! ! ! ! ! !! ! ! ! !! !! ! !! !!! ! ! ! ! ! ! !! !! !! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! !! ! !! ! ! !! ! ! ! !!! ! !! ! ! !!! ! ! ! !!!! !! !! ! ! ** **** Y A L E A M H E R S T B AT E S C O R N E L L D A R T M O U T H D A R T M O U T H P L F L O Y D F L O Y D P L G I R A R D P L U S 2 8 5CORONABROADWAYGRANTWASHINGTONLINCOLNPENNSYLVANIAEMERSONOGDENCLARKSONPEARLLOGANSHERMANDOWNINGGILPINHIGHRACEWILLIAMSUNIVERSITYBATES PKWYFRANKLINGILPINMARIONHUMBOLDTFRANKLINLAFAYETTEE A S T M A N GIRARD PLYORKCLARKSONA M H E R S T VINELOGAN2700280029003000200 400 600 800 1000 1200 1400 1600 1800 2000 2300 310032003300340034003500PRINTED: 2020-06-30 16:03 DRAWN BY: JDL A l l e y G r a d i n g & S t a b i l i z a t i o n 2 0 2 0 — Z o n e 1 Quantities Number o f a lleys = 88±Number o f manholes = 146±Total length = 51,200 ft± (unpaved public alleys) f o r r e v i e w REV ISE D: June 30 , 2020 ¶N SCALE:1 inch = 750 feet Legend Street Unpaved Alley Paved Alley !Manhole /Utility structure City Ditch City Ditch, piped Private Alley Unpaved Alley (reduced ROW) (no work) ***Page 150 of 206 COLT STEEL l:.\\JR()_\.‘-|L.\.'l.—\l.RLSIUR ‘-.1[US 303.442.2888 l:..;:i.~:(1.4.1..*. To:City Of Englewood Address:1000 Englewood Parkway Englewood,CO 80110 USA Project Name:2020 Englewood Alley Grading And Stabilization Project Location: Item #Item Description 01 Mobilization 02 Alley Grading 03 Disposal Of Excess Alleyway Material 04 Removal And Disposal Of Unsuitable Alley Base 05 Recycle Alleybase 06 Haul And Place Asphalt Millings 07 Furnish And Place Roadway Base 08 Aggregate Pan 09 Apply Soil Stabilizer 10 Structure Adjustment (Lowering) 11 Structure Adjustment (raising) 12 Tree And Brush Trimming 13 Work Zone Traf?c Control 14 Erosion And Sediment Control 15 Minor Contract Revisions ACCEPTED: The above prices,specifications and conditions are satisfactory and hereby accepted. Buyer: Signature: Date of Acceptance: Estimated Quantity 1.00 55,000.00 100.00 600.00 250.00 400.00 400.00 5,000.00 26,900.00 5.00 10.00 600.00 1.00 1.00 10,000.00 CONFIRMED: Colt &Steel Estimator: Contact: Phone: Fax: Bid Number: Bid Date: Unit LS LF CY CY CY CY TON LF GAL EACH EACH LF LS LS EACH 303-762-2412 303-783-6896 Unit Price $9,505.02 $1.26 $206.38 $91.45 $48.80 $52.90 $58.16 $10.83 $1.58 $1,096.77 $932.83 $6.01 $48,605.43 $8,123.05 $1.00 Total Bid Price: Authorized Signature: Total Price $9,505.02 $69,300.00 $20,638.00 $54,870.00 $12,200.00 $21,160.00 $23,264.00 $54,150.00 $42,502.00 $5,483.85 $9,328.30 $3,606.00 $48,605.43 $8,123.05 $10,000.00 $392,735.65 \§____b__.-.— Page 1 of Page 151 of 206 nEmu 33% _um&_ Page 152 of 206 Page 153 of 206 Page 154 of 206 Item # Item Units Contract Quantity Unit Cost Cost Unit Cost Cost Percentage Cost1 MobilizationLS 1.00 $40,000.00 $40,000.00 $9,505.02 $9,505.02 -76% -$30,494.982 Alley Grading (11' Wide)LF 55,000.00 $1.40 $77,000.00 $1.26 $69,300.00 -10% -$7,700.003 Disposal of Excess Alley BaseCY 100.00 $50.00 $5,000.00 $206.38 $20,638.00 313% $15,638.004 Removal & Disposal of Unsuitable Alley BaseCY 600.00 $90.00 $54,000.00 $91.45 $54,870.00 2% $870.005 Recycle Alley BaseCY 250.00 $55.00 $13,750.00 $48.80 $12,200.00 -11% -$1,550.006 Haul & Place Asphalt MillingsCY 400.00 $90.00 $36,000.00 $52.90 $21,160.00 -41% -$14,840.007 Furnish & Place Roadway BaseTN 400.00 $75.00 $30,000.00 $58.16 $23,264.00 -22% -$6,736.008 Aggregate PanLF 5,000.00 $16.00 $80,000.00 $10.83 $54,150.00 -32% -$25,850.009 Apply Soil StabilizerGAL 26,900.00 $1.85 $49,765.00 $1.58 $42,502.00 -15% -$7,263.0010 Structure Adjustment (Lowering)EA 5.00 $600.00 $3,000.00 $1,096.77 $5,483.85 83% $2,483.8511 Structure Adjustment (Raising)EA 10.00 $200.00 $2,000.00 $932.83 $9,328.30 366% $7,328.3012 Tree and Bush TrimmingLF 600.00 $8.00 $4,800.00 $6.01 $3,606.00 -25% -$1,194.0013 Work Zone Traffic ControlLS 1.00 $15,000.00 $15,000.00 $48,605.43 $48,605.43 224% $33,605.4314 Erosion & Sediment ControlLS 1.00 $15,000.00 $15,000.00 $8,123.05 $8,123.05 -46% -$6,876.9515 Minor Contract RevisionsEA 10,000.00 $1.00 $10,000.00 $1.00 $10,000.00 0% $0.00$435,315.00 $392,735.65-10% -$42,579.35Engineer's Estimate Contractor's Cost Difference2020 Alley Grading & Stabilization "Bid" ComparisonPage 155 of 206 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Devin Keener, Tim Hoos DEPARTMENT: Public Works DATE: September 8, 2020 SUBJECT: Amendment to Englewood Municipal Code Title 16, Chapter 4 - Floodplain Regulations DESCRIPTION: Public Hearing for Amendments to Englewood Municipal Code Title 16, Chapter 4 - Floodplain Regulations RECOMMENDATION: City staff recommends utilizing the Federal Emergency Management Agency's (FEMA's) suggested auto-adoption ordinance language. City staff also recommends the modification of subsection F as presented. PREVIOUS COUNCIL ACTION: The previous Flood Insurance Study updates were adopted by Ordinance at the April 2, 2018 City Council Meeting. SUMMARY: In order to remain eligible for the National Flood Insurance Program's (NFIP) Community Rating System (CRS), a community must revise their Floodplain Ordinance to reflect the dates of the most current FEMA Flood Insurance Studies. In order to remain in effect, FEMA has suggested that all communities consider auto-adoption language. Auto-adoption language removes the need for communities to continually update their Floodplain Ordinance to reflect the latest study date and ensures that no community loses status in the CRS due to having an outdated Floodplain Ordinance. Also included in this action is a modification to the language in Title 16-4-2 subsection F which provides more clarity to the Warning and Disclaimer Liability statement in regards to the City Ordinance Chapter on flooding. ANALYSIS: Every few years, FEMA revises Flood Insurance Studies across the country to provide more accurate flood maps. When the study is revised, each affected community must revise their Floodplain Ordinance to reflect the most current study date. If a community does not update their ordinance by the time the new study is effective, that community can lose status in the National Flood Insurance Program's (NFIP) Community Rating System (CRS). The CRS is a voluntary incentive program that recognizes and encourages community floodplain management activities that exceed the minimum program requirements. As a result, flood insurance premium rates in the community are discounted to reflect the reduced flood risk resulting from the community actions meeting the three goals of the CRS: Page 156 of 206 1. Reduce flood damage to insurable property 2. Strengthen and support the insurance aspects of the National Flood Insurance Program 3. Encourage a comprehensive approach to floodplain management FEMA began to realize over the past few years that it takes a significant amount of time to adopt the ordinance change necessary for compliance with Flood Insurance Study updates. So, they have suggested that all communities move to auto-adoption language. Auto-adoption language removes the need for communities to continually update their Floodplain Ordinance to reflect the latest study date and ensures that no community loses status in the CRS due to having an outdated Floodplain Ordinance. By utilizing auto adoption language, the process of adopting future Flood Insurance Study updates is streamlined. Without auto-adoption language, time and resources must be spent modifying the Floodplain Ordinance each time new Flood Insurance Studies are adopted by FEMA. The update to the language in Title 16-4-2 subsection F provides more clarity to the Warning and Disclaimer Liability statement in regards to the City Ordinance Chapter on flooding. As written, subsection F notes that flood protection is based on engineering and scientific considerations, however larger floods can occur if man-man obstacles or natural debris clog up drainage openings. The addition of the words “culvert and drainage” to the language provide further clarification as to what constitutes an “opening” that can be restricted and clogged by debris. Any drainage opening, no matter the size, is subject to failure by man-made or natural debris restricting the flow of water. FINANCIAL IMPLICATIONS: None ALTERNATIVES: The alternative would be to continue to change the City's Floodplain Ordinance to reflect the latest FEMA Flood Insurance Study date each time they are adopted by FEMA. Not modifying subsection F would have no negative legal implications, but would leave the language in the subsection less clear than it could be. CONCLUSION: City staff recommends utilizing FEMA's suggested auto-adoption ordinance language that many communities across the United States are moving towards. City staff also recommends the modification of subsection F to expand the Warning and Disclaimer Liability statement. ATTACHMENTS: Planning & Zoning Commission Findings of Fact Englewood Municipal Code Section 16-4-2 Proposed Update Language Presentation Title 16, Chapter 4 Page 157 of 206 CITY OF ENGLEWOOD PLANNING AND ZONING COMMISSION IN THE MATTER OF CASE #2020-06, ) FINDINGS OF FACT, CONCLUSIONS ) AND RECOMMENDATIONS RELATING TO ) FINDINGS OF FACT AND AMENDMENTS TO TITLE 16, SECTION 2 OF THE ) CONCLUSIONS OF THE ENGLEWOOD MUNICIPAL CODE REGARDING ) CITY PLANNING AND UPDATES TO THE JURISDICTION APPLICABILITY ) ZONING COMMISSION OF THE FLOOD PLAIN REGULATIONS ) ) ) ) INITIATED BY: ) Public Works Department ) 1000 Englewood Parkway ) Englewood, CO 80110 ) Commission Members Present: Kinton, Freemire, Haggerty, Browne, Fuller, Townley, Austin, Atkins, Lipovsky Commission Members Absent: None This matter was heard virtually via Zoom before the City Planning and Zoning Commission on August 18, 2020. Testimony was received from staff. The Commission received notice of Public Hearing, the Staff Report, and a copy of the proposed amendments to Title 16 Unified Development Code, which were incorporated into and made a part of the record of the Public Hearing. After considering sworn testimony and reviewing the pertinent documents, the members of the City Planning and Zoning Commission made the following Findings and Conclusions. FINDINGS OF FACT 1. THAT the Public Hearing on the Unified Development Code Flood Plain Amendments was brought before the Planning Commission by the Department of Public Works, a department of the City of Englewood. 2. THAT notice of the Public Hearing was published in the Englewood Herald on August 6, 2020 and notice of the Public Hearing was on the City of Englewood’s website from August 3, 2020 through August 18, 2020. 3. THAT the staff report was made part of the record. 4. THAT the amendments provide automatic adoption of the latest Flood Insurance Study. Page 158 of 206 5. THAT with the amendments, it will no longer be necessary to make changes to Title 16, Flood Plain Regulation for FEMA updates. CONCLUSIONS 1. THAT the Public Hearing on the Unified Development Code Flood Plain Amendments was brought before the Planning Commission by the Department of Public Works, a department of the City of Englewood. 2. THAT notice of the Public Hearing was published in the Englewood Herald on August 6, 2020 and notice of the Public Hearing was on the City of Englewood’s website from August 3, 2020 through August 18, 2020. 3. THAT it is more efficient to adopt the flood plain amendments to allow for automatic adoption of the most current Flood Insurance Study. DECISION THEREFORE, it is the decision of the City Planning and Zoning Commission that Case #2020- Unified Development Code Housekeeping Amendments should be referred to the City Council with a favorable recommendation. The decision was reached upon a vote on a motion made at the meeting of the City Planning and Zoning Commission on August 18, 2020, by Haggerty, seconded by Browne, which states: MOTION TO RECOMMEND CASE 2020-06 AMENDMENTS TO TITLE 16, SECTON 2 OF THE ENGLEWOOD MUNICIPAL CODE TO CITY COUNCIL FOR APPROVAL. AYES: Kinton, Freemire, Haggerty, Browne, Fuller, Townley, Austin, Atkins, Lipovsky NAYS: None ABSTAIN: None ABSENT: None Motion carried. These Findings and Conclusions are effective as of the meeting on August 18, 2020 BY ORDER OF THE CITY PLANNING & ZONING COMMISSION Michael Freemire, Chair /s/ Michael Freemire Page 159 of 206 16-4-2: Jurisdiction and Applicability A. Applicability. The provisions of this Chapter shall apply to all land within the City defined as: 1. The special flood hazard areas identified by the Federal Emergency Management Agency “FEMA” in a scientific and engineering report entitled “Flood Insurance Study – Arapahoe County, Colorado, and Incorporated Areas” with accompanying Flood Insurance Rate Maps and Flood Boundary-Floodway Maps (“FIRM and/or FBFM”) and any revisions thereto. All revisions to the FIRM’s and/or FBFM’s applicable to land within the City and issued by FEMA through a Letter of Map Revision (“LOMR”) or Physical Map Revision (“PMR”) are hereby deemed adopted by the City as of the effective date of the LOMR or PMR. 2. The boundaries of the West Harvard Gulch Flood Hazard Area as shown on Sheets 13 and 14 in a report entitled "Flood Hazard Area Delineation, Harvard Gulch, West Harvard Gulch, and Dry Gulch" dated December 1979 by Gingery Associates, Inc., and approved by the Colorado Water Conservation Board on January 30, 1980. 3. Flood Hazard Area delineated as Harvard Gulch and Dry Gulch prepared by Matrix Design Group in February of 2017, and approved by the Colorado Water Conservation Board on January 23, 2018. The above Official Flood Studies are hereby adopted by reference and declared to a part of this Title. B. Basis for Establishing Special Flood Hazard Areas. The City hereby establishes floodplains and floodways whose boundaries are those of the designated 100-year floodplain, special flood hazard areas and the designated floodways as are shown or tabulated in the Flood Insurance Study for the City of Englewood. C. Compliance. No structure or land located in a special flood hazard area shall hereafter be constructed, located, extended, converted, altered or have its use changed without full compliance with the terms of this Chapter and all other applicable regulations. These regulations meet the minimum requirements set forth by the Colorado Water Conservation Board and the National Flood Insurance Program. 1. Floodplain Development Permit. A Floodplain Development Permit shall be required prior to commencement of any construction or other development to ensure conformance with the provisions of this Chapter. 2. Certificate of Compliance. a. No vacant land shall be occupied or used and no building shall hereafter erected, altered, or moved on the floodplain of any watercourse, nor shall such buildings be occupied, until a certificate of compliance has been issued by the Floodplain Administrator. b. The applicant shall submit a certification by a registered Colorado professional engineer to the Floodplain Administrator that the finished Page 160 of 206 fill and building floor elevations, floodproofing measures, or other protection factors were accomplished in compliance with the provisions of this Chapter. This certification shall also state whether or not the structure contains a basement. Within ten (10) days after receipt of such certification from the applicant, the Floodplain Administrator shall issue a certificate of compliance only if the building or premises and proposed use thereof, conform with all of the requirements of this Chapter. D. Abrogation and Greater Restrictions. The regulations of this Chapter shall be construed as being supplementary to the regulations imposed on the same lands by the underlying zone classification. This Chapter is no intended to repeal, abrogate, or impair any existing easement, covenants, or deed restrictions. However, where this Chapter and other ordinance, easement, covenant, or deed restriction conflict or overlap, whichever imposed the more stringent restrictions, shall apply. E. Interpretation. In their interpretation and application, the provisions of this Chapter shall be held to be minimum requirements, shall be liberally construed in favor of the City, and shall be deemed neither to limit or repeal any other powers granted under State Statutes. F. Warning and Disclaimer Liability. The degree of flood protection intended to be provided by this Chapter is considered reasonable for regulatory purposes and is based on engineering and scientific considerations. Larger floods may occur on occasions, or the flood height may be increased by man-made obstacles or natural causes, such as ice jams, and bridge, culvert, and drainage openings restricted by debris. This Chapter does not imply that the areas outside of special flood hazard areas or land uses permitted within such areas will always be free from flooding or flood damages. This Chapter shall not create liability on the part of the City or any officer or employee thereof for any flood damages that result from reliance on this Chapter or any administrative decision lawfully made thereunder. G. Severability. See Section 16-1-10 EMC, (Severability). Page 161 of 206 Englewood Municipal Code Proposed Title 16 Updates Chapter 4 – Floodplain Regulations September 8, 2020 Page 162 of 206 Purpose of the Language Updates 16-4-2-A Background: -FEMA requires communities to regulate, enforce and adopt the latest Flood Insurance Study (FIS). -Sanctions (for not following FEMA guidelines): -Loss of status in the Community Rating System (CRS) -Loss of ability to purchase flood insurance or receive disaster relief aid. -FEMA is encouraging all communities in the U.S. to move to auto adoption language in their ordinances. Title 16-4-2 A: -The proposed auto adoption language addition would do the following: 1.Ensure that the City never risks its status in the CRS program. 2.Do away with the need for meetings to continually readopt the latest FIS. Page 163 of 206 Title 16-4-2-A Proposed Language (FEMA Approved) Key language additions suggested and approved by FEMA. All revisions to the FIRM’s and/or FBFM’s applicable to land within the City and issued by FEMA through a Letter of Map Revision (“LOMR”) or Physical Map Revision (“PMR”) are hereby deemed adopted by the City as of the effective date of the LOMR or PMR. Page 164 of 206 Purpose of the Language Updates 16-4-2-F Background: -The City of Englewood’s build out predates FEMA -Many drainage paths exist in underground infrastructure -Potential flood hazards exist, and will continue to exist, regardless of future infrastructure modification. Title 16-4-2 F: -Addition of “Culvert and Drainage” encompasses all openings that could become clogged. 1.The City cannot guarantee that stormwater infrastructure will be restriction-free. 2.Man-made or natural debris can make a flood higher and wider than mapped. 3.The addition of the two words, while not necessary, would call attention to other types of drainage openings that can become compromised. Page 165 of 206 Title 16-4-2-F Proposed Language Warning and Disclaimer Liability. The degree of flood protection intended to be provided by this Chapter is considered reasonable for regulatory purposes and is based on engineering and scientific considerations. Larger floods may occur on occasions, or the flood height may be increased by man-made obstacles or natural causes, such as ice jams, and bridge, culvert, and drainage openings restricted by debris. *This Chapter shall not create liability on the part of the City or any officer or employee thereof for any flood damages that result from reliance on this Chapter or any administrative decision lawfully made thereunder. Page 166 of 206 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Dave Lee DEPARTMENT: Parks, Recreation & Library DATE: September 8, 2020 SUBJECT: CB 32 - Grant of Water Line Easement DESCRIPTION: CB 32 - Valley Sanitation District has a need for a 3/4 inch water line located at Centennial Park in the northwest parking lot of the park. RECOMMENDATION: Staff recommends Council approve an Ordinance for the Grant of Water Line Easement at Centennial Park. PREVIOUS COUNCIL ACTION: City Council approved Ordinance No. 8, Series of 2019 awarding a grant of permanent easement and temporary construction easements to Valley Sanitation District. SUMMARY: Valley Sanitation District is currently constructing approximately 3000 feet of pressure and gravity sever lines with a new lift station to replace the current interceptor sewer line. As part of the ongoing maintenance of the lift station equipment, the District is in need of a 3/4 inch water line to provide potable water to the lift station for washing down equipment and floors during maintenance operations. All water used during these operations will be disposed of through the collection system within the lift station building. ANALYSIS: The potable water line will be located underground within the Easement area as set forth in Exhibit A along with any surface appurtenances necessary for the operation of the water line. In the future, if it becomes necessary to move the water line, the cost of relocation will be borne by the District. FINANCIAL IMPLICATIONS: The City of Englewood shall be solely responsible for any maintenance to the surface area of the Easement Agreement, including any public street surfacing, curbs, gutters and permitted landscaping within the Easement area. The District is required to return the Easement area to its original state upon completion of the construction project. CONCLUSION: Staff recommends that Council approve a Bill for an Ordinance for Grant of Water Line Easement to Valley Sanitation District. Page 167 of 206 ATTACHMENTS: Council Bill #32 Valley Water Line Easement and Exhibit A Page 168 of 206 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. 32 SERIES OF 2020 INTRODUCED BY COUNCIL MEMBER WINK AN ORDINANCE GRANTING A WATER LINE EASEMENT TO THE VALLEY SANITATION DISTRICT FOR THE SANITARY SEWER LIFT STATION LOCATED IN THE NORTH PARKING LOT OF CENTENNIAL PARK WHEREAS, the Valley Sanitation District (“Valley”) provides sanitary sewer service to approximately 565 customers in the City of Englewood representing exactly twenty-five percent (25%) of the billing accounts for Valley; WHEREAS, Valley owns and maintains a network of collection pipes to move wastewater to the South Platte Water Renewal Partners plant for treatment; WHEREAS, the Englewood City Council passed Ordinance No. 8, Series of 2019, on February 4, 2019 awarding the grant of a permanent easement and temporary construction easement to the District to locate a new sewer line and lift station in the North parking lot of Centennial Park; WHEREAS, as part of the ongoing maintenance and operation of the lift station equipment, the District has a need for a three-quarter inch (3/4") water line; WHEREAS, the water line is necessary to provide potable water to the lift station operations for washing down equipment and floors during the repairs, maintenance and replacement of lift station equipment. All water used in these operations is disposed of via a collection system located within the lift station building. WHEREAS, after the installation of the water line, the District shall, at its cost, restore the property to its original condition to the extent reasonably practicable; WHEREAS, the City retains all of its rights to the undisturbed use and occupancy of the Water Line Easement area, except as necessary to accommodate the District’s lift station facility located therein; WHEREAS, the District shall be solely responsible and at its own cost for the construction, operation, maintenance, repair and replacement, and all restoration work associated with the water line; and WHEREAS, if the District abandons its rights under the Water Line Easement, such easement shall revert back to the City of Englewood; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Page 169 of 206 2 Section 1. The “Grant of Water Line Easement” from the City of Englewood, Colorado to the Valley Sanitation District, attached hereto as Exhibit A, is hereby granted, accepted and approved by the Englewood City Council. Section 2. The Mayor is authorized to execute and the City Clerk attest and seal the Grant of Water Line Easement Agreement for and on behalf of the City of Englewood, Colorado. Introduced, read in full, and passed on first reading on the 17th day of August, 2020. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 20th day of August, 2020. Published as a Bill for an Ordinance on the City’s official website beginning on the 19th day of August, 2020 for thirty (30) days. Read by Title and passed on final reading on the 7th day of September, 2020. Published by Title in the City’s official newspaper as Ordinance No. ___, Series of 2020, on the 10th day of September, 2020 Published by title on the City’s official website beginning on the 9th day of September, 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 Ordinance passed on final reading and published by Title as Ordinance No. ___, Series of 2020. Stephanie Carlile Page 170 of 206 GRANT OF WATER LINE EASEMENT THIS WATER LINE EASEMENT is made this� day of_��,.., 2020 between the CITY OF ENGLEWOOD, (hereinafter referred to as the "City" or "G7 ntor") and VALLEY SANITATION DISTRICT, (hereinafter referred to as the "District"). WHEREAS, the District is currently constructing approximately 3,000 feet of pressure and gravity interceptor sewer pipe and a new lift station to replace the current interceptor sewer line; WHEREAS, the Parties entered into a Permanent Easement and Temporary Construction Easement Agreement in 2019 to construct_a.sewer lift station and install a sanitary sewer line; WHEREAS, the Englewood City Council passed Ordinance No. 8, Series of 2019, on February 4, 2019 awarding the grant of permanent and temporary construction easements to the District to locate the new sewer line and lift station in a portion of the southwest parking lot at Centennial Park; WHEREAS, as part of the ongoing maintenance of the lift station equipment, the District has a need for a three-quarter inch (3/4") water line which will be located in Lot 2, Block 3, Centennial Industrial Park Subdivision, also known as Centennial Park, City of Englewood, County of Arapahoe; and WHEREAS, the water line is necessary to provide potable water to the lift station operations for washing down equipment and floor during repairs, maintenance and replacement of lift station equipment. All water used in these operations is disposed of via a collection system located within the lift station building. NOW THEREFORE, the City hereby, without warranty of its title or interest whatsoever, grants the District a water line easement over and across that portion of City property described on Exhibit A as attached hereto, upon the following conditions. I. Grant of Easement. Subject to the terms and conditions set forth in this Agreement, Grantor does hereby grant and convey unto the District, its successors and assigns the following Easement: (a)An Easement as set forth in Exhibit A, as attached hereto, for the purpose of constructing, installing, operating, maintaining, repairing and replacing a three-quarter inch (3/4") water service line to the District's lift station. 2. Location of Water Line. The water line shall be located underground within the Easement area, as set forth in Exhibit A, together with any and all surface appurtenances necessary for the operation of the water line. In the event that the City is required, or it is necessary for the water line to be moved, the cost of such relocation shall be borne by the District. 3. Existing Improvements. Grantor and District recognize that over time, Grantor, or Grantor's predecessors, have installed improvements including, without limitation, trees, sod, shrubs, flowers, and parking improvements within the Easement area, as set forth in Exhibit A. After installation of the water line, and any subsequent repair, alteration, inspection or other work performed on the water line, pursuant to this Agreement, the District shall leave the Grantor's property, and the easement area, and all portions thereof, in a clean, sightly, and safe condition, with all rubbish and debris removed therefrom and shall repair and/or restore Grantor's property, to the extent reasonably practicable. Exhibit A Page 171 of 206 4.Notice of Work.Except in the case of emergencies,the District will,during the life of the Easement herein granted,provide the Grantor reasonable advance notice before the District commences any substantial mater.In the event of an emergency,the District shall provide the Grantor notice of such activity as soon as it is reasonably practicable. 5.Reservation of Rights.Grantor retains the right to the undisturbeduse and occupancy of the Easement Area is so far as such use and occupancy is consistent with,and does not impair,the operation,maintenance,and security of the District’s facilities located within the Easement Area. 6.Maintenance of Surface.Grantor,at Grantor’s sole expense shall solely be responsible for the maintenance of the surface of the Easement Area,including any public street surfacing, curbs,gutters and permitted landscapingwithin the Easement Area. 7.Abandonment.In the case the District shall abandon its rights herein granted,either in whole or in part,all right,title and interest of the District hereundershall cease and terminate and shall revert back to the Grantor,or the then owner of the real property burdened by the Easement or the portion therein abandoned,as the case may be,and shall hold the abandoned Easement Area as the same may then be,free from any right,title or claim of the District,but nothing herein contained shall be construed as causing a forfeiture or abandonment of any interest hereunder not owned by the District at the time of such abandonment. 8.District Maintenance Responsibilities.All water line construction,operation, maintenance,repair and replacement and all restoration work shall performed at the District’s sole cost and expense;in a good workman-like manner;and in accordance with all applicable legal requirements. 9.Subiacentand Lateral Support.The District shall have and exercise the right of subjacent and lateral support,to whatever extant is reasonably necessary,for the full,complete and unmolested enjoyment of the District’s rights herein granted.Grantor shall take no action which would impair the earth overburden or subjacent or lateral support of the water line;provided, however,that upon obtaining the speci?c written permission of the District,the earth overburden of the water line may be modified,but it is understood that normally will not be granted for a modi?cation involving a cover of less than 4.5 feet,nor greater than 15 feet,measured vertically from the top of the water line. 8.Entire Agreement.Unless special provisions are attached hereto,the above and foregoing constitutes the whole Agreement between the Parties;and no additional or different oral representation,promise or agreement shall be binding on any of the Parties hereto,with respect to the subject matter hereof,to the extent that any such provisions added hereto conflict with any other provision hereof,such special provision shall control. 9.Miscellaneous.All provisions of this Agreement,including all benefits,shall run with the land and be binding upon,and inure,to the benefit to the successors and assigns of the Parties hereto,subject to the provisions hereof. 10.Assignment.Subject to the provisions of Paragraph 9 above,the Easement Area nor this Agreement shall be assigned by either Party without the prior written consent of the other Party. Any purported assignment without the prior written consent shall be deemed null and void. 11.Severabilig.The invalidity of any one provision of this Agreement will not affect the validity or binding effect of the remaining provisions. Page 172 of 206 12.Governing Law.This Agreement shall be governed and construed under the laws of the State of Colorado.Any actions shall be ?led in the District Courts of Arapahoe County. 13.Indemni?cation.The District,to the extent authorized by law and subject to all of the limitations,defenses,immunities and other protections afforded the District under the Colorado Governmental Immunity Act,24-10-101 et seq.C.R.S.,shall indemnify,save and hold harmless the Grantor against any and all claims,damages,liability and court awards including costs, expenses and reasonable attorney fees incurred as a result of any negligent or wrongful act or omission of the District,its employees,agents and subcontractors pursuant to the terms of this Agreement. Such indemni?cation shall be for all spill,leaks,subsidence of the Basement Area,or any other water line event impacting private or public property,wherein the origin of the event is due to the District’s water line which is the subject of this Agreement. IN WITNESS WHEREOF,the Parties have executed this Water Line Easement Agreement,as of the day and year first above written. GRANTOR: CITY OF ENGLEWOOD,a Colorado Municipal Corporation By: Na1ne: Title: Attest: ACKNOWLEDGEMENT STATE OF COLORADO ) )ss. COUNTY OF ARAPAOE ) The above and foregoing instrument was acknowledged before me this ,2020,by of the City of Englewood,Colorado. Witness my hand and of?cial seal. My Commission expires: Notary Public Page 173 of 206 DISTRICT: VALLEY SANITATION DISTRICT,a quasi-municipal corporation and political subdivision of the State of Colorado.7 _. Chai?i ‘Name:0 ACKNOWLEDGEMENT STATE OF COLORADO ) )ss. COUNTY OF ARAPAHOE ) The foregoing instrument was acknowledged before me this day of JD‘%, 2020,byKr/‘C1130’(%'wa’u%/¢Ld ,by 7/w51//is C'7QQQi.0//l as Chairman of the Valley Sanitation District. WITNESS my hand and official seal. My Commission Expireszl/)/)6},‘ii[IO ',7.0 Notary Pub’ic U BRIDGETBlJ"iTERFlEl.D NOTARYPUBLIC STATE OF COLORADO NOTARYID 20194017937 ‘_ MY COhI£4‘lu£_‘aiLC3[*JmgPIRE$MAY10,2023 Page 174 of 206 EXHIBIT"A" _._l ___l _ E CENTENNIALTRADE CENTER __.\ \I LOT 3 __s2o'2s’5o"w 17502’BLOCK 3 "NW'LYLINE OF LOT 3 \BASIS OF BEARING \ S36'O2'.'56"E é’|‘§“$‘E§E\ sIIso'(TIE)\ENGLEWOOD T __ B BEGINNING PERMANENTEASEMENT AREA=758 S.F.:I: OR 0.017 ACRES:|: BLOCK 1 CENTENNIAL INDUSTRIALPARK OWNER:‘\cm’or ENGLEWOOD AIN:2077—08—1—03—-009 \ /\ (I) 'J_-' § > E: 0. Ir \/ I_E E ________ 'NE1/4SEC.8 T58,R68W,6TH P.M. o’> _I In _I <n: I.|.I D LIJ I.|_ vi S.DECATUR ST.(eo’R 0 w) LINE TABLE L|NE#BEARING DISTANCE L1 N90'OO'00"E 40.06' L2 S12'15'17"W 20.47’ BLOCK 2 L3 N90'0O'00"W 35.74’ 1 inch =100 ft.L4 N00'O4'21"E 20.00’ 1.)PARCEL OWNERSHIPIS BASED ON THE RECORDSOF THE COUNTYASSESSOR. 2.)ACCORDINGTO COLORADOLAW,YOU MUST COMMENCEANY LEGALACTIONBASED UPON ANY DEFECTIN THIS SURVEY WITHINTHREEYEARS AFTERYOU FIRST DISCOVERSUCH DEFECT.IN NO EVENTMAY ANY ACTIONBASED UPON ANY DEFECT IN THIS SURVEYBE COMMENCEDMORE THAN TEN YEARS AFTERTHE DATE OF THE CERTIFICATIONSHOWNHEREON. 3.)THE ONLY PURPOSE OF THIS EXHIBITIS TO SHOW THE LOCATIONOF THE EASEMENT(S). 4.)THIS DOCUMENTSHALL BE CONSIDEREDNULLAND VOID IF IT DOES NOT BEAR THE ORIGINALSIGNATUREAND SEAL OF THE PROFESSIONALLANDSURVEYOROR IF ALTEREDIN ANY WAY. PrecisionSurvey8Mapping,Inc.J;______P M E pmI:~saIunaI Imm suIveyInr_I cmsuImnIs .(19025EKenyonAm,S1I’I|a 159,Denver,co30257 DATE‘05,,28 2°,E E M E N ITeI.'(5D3)7554799 ScALE:_l_=_1_°£_ LOT 3 BLOCK 1 Page 175 of 206 LEGAL DESCIPTION A PARCEL OF LAND LOCATED IN NORTHEASTQUARTER OF SECTION 8,TOWNSHIP5 SOUTH,RANGE 68 WEST OF THE SIXTH PRINCIPAL MERIDIAN,COUNTY OF ARAPAHOE, STATE OF COLORADO,ALSO BEING A PORTION OF VACATED WEST TUFTS AVENUE, CENTENNIALINDUSTRIALPARK SUBDIVISION,FILED IN THE ARAPAHOECOUNTY CLERK AND RECORDER'SOFFICE,SAID PARCEL OF LAND BEING MORE PARTICULARLY DESCRIBEDAS FOLLOWS: BASIS OF BEARING OF THIS DESCRIPTIONIS ALONG THE NORTHWESTERLYLINE OF LOT 3,BLOCK 3 OF SAID PLAT.ASSUMED TO BEAR S20'26'50"W A DISTANCE OF 175.02 FEET; BEGINNINGAT A POINT WHICH BEARS S36'02'36"E A DISTANCEOF 61.60 FEET FROM THE SOUTHWESTCORNER OF SAID LOT 3,BLOCK 3; THENCE N90'0O'O0"EA DISTANCEOF 40.06 FEET;THENCE S12'15'17"W A DISTANCE OF 20.47 FEET;THENCE N90'O0'00"WA DISTANCEOF 35.74 FEET TO THE EASTERLY RIGHT—OF—WAYOF SOUTH DECATURSTREET;THENCE N00’04'2I"E ALONG SAID EASTERLYR|GHT—OF—WAY,A DISTANCEOF 20.00 FEET TO THE POINT OF BEGINNING; WHENCE THE NORTHWESTCORNER OF SAID LOT 3,BLOCK 3 BEARS N06'38'30"E A DISTANCEOF 215.25 FEET; SAID PARCEL CONTAINS 758 SQUARE FEET OR 0.017 ACRES,MORE OR LESS. I,THE UNDERSIGNED,A REGISTEREDLAND SURVEYOR IN THE STATE OF COLORADO,DO HEREBYSTATE THAT THIS EXHIBITWAS PREPARED BY ME OR UNDER MY SUPERVISION AND IS TRUE AND ACCURATE TO THE BEST OF MY KNOWLEDGE. 05/23/2o .I '"° I P E R MANENTnosEenyon:1-IJi;a7z:,9ver,conow ::fL‘E:0:,2:3;),sHEET:_Z_E._E E M E Page 176 of 206 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Maria Sobota DEPARTMENT: Finance DATE: September 8, 2020 SUBJECT: A resolution authorizing the application for grant funds from identified grantor authorities DESCRIPTION: A resolution authorizing the application for grant funds from identified grantor authorities RECOMMENDATION: Staff recommends city council approve a resolution authorizing the application for grant funds from identified grantor authorities. PREVIOUS COUNCIL ACTION: Council meetings regularly include action items to authorize the staff to apply for grant funds from federal, state, and local governmental entities and not for profit organizations. SUMMARY: In accordance with sound fiscal practices and to more efficiently conduct business in city council meetings for items requiring direction, staff has developed a resolution authorizing application for grants by administrative departments and boards and commissions, under the direction of the city manager. ANALYSIS: Grantor organizations provide grants to municipalities and historically make funds available within a limited time frame, sometimes limiting the city's ability to seek out and apply for those funds. Typically, grants are sought from the same grantors every year and the city often has experience working with these organizations. The re-engagement of city council to discuss items that staff has already been authorized to act upon, including budgeted items and items within departmental purchasing authority, results in a less efficient work process. However, many grantor organizations require proof of authorization to apply for grants as part of the application process. The attached resolution authorizes city administrative departments, and boards and commissions, to apply for grants throughout the 2020, 2021 and 2022 fiscal years, subject to certain limitations. Section 1. IN-KIND SERVICES. The Administrative Departments of the City of Englewood, including Boards and Commissions, under the direction of the City Manager or his designee, is hereby authorized to apply for grants from Colorado Department of Transportation(CDOT), Denver Regional Council of Governments (DRCOG), Arapahoe County Open Space, Great Outdoors Colorado (GOCO), Federal, State, Local and Not For Profit organizations for participation in traffic safety education and enforcement, planning, recreation, cultural Page 177 of 206 arts/education/interpretation, land use, and other projects that benefit the City of Englewood, when such grants do not require investment of City funds other than in-kind services, all during the years 2020, 2021 and 2022. Section 2. MATCHING FUNDS. The Administrative Departments of the City of Englewood, under the direction of the City Manager, are hereby authorized to apply for grant funds from CDOT, DRCOG, Arapahoe County Open Space, GOCO, Federal, State, Local and Not for Profit organizations for participation in traffic safety education and enforcement, planning, recreation, cultural arts/education/interpretation, land use, and similar projects that benefit the City of Englewood, when such grants require matching funds if such matching funds are both within the City Manager’s spending approval authority as detailed within the City of Englewood Purchasing Policy and approved within the City’s budget, all during the years 2020, 2021 and 2022. The resolution authorizes city administrative departments to seek reimbursement of expenses associated with grant funded projects throughout the 2020, 2021 and 2022 fiscal years, subject to certain limitations. Section 3. REIMBURSEMENT. The City of Englewood, under the direction of the City Manager or his designee, is hereby authorized to apply for reimbursement for grant funds from CDOT, DRCOG, Arapahoe County Open Space, GOCO, for participation in traffic safety education and enforcement, planning, recreation, cultural arts/education/interpretation, land use, and similar projects that benefit the City of Englewood, when such grants do not require investment of City funds other than in-kind services, all during the years 2020, 2021 and 2022. FINANCIAL IMPLICATIONS: If approved, the resolution will enable staff to more efficiently apply for grants and may result in securing additional funding for critical projects. ALTERNATIVES: The city can continue to seek council's approval prior to applying for individual grants. CONCLUSION: Approval of the attached resolution will streamline the grant application process. ATTACHMENTS: Resolution Page 178 of 206 1 RESOLUTION NO. ___ SERIES OF 2020 A RESOLUTION AUTHORIZING THE APPLICATION FOR GRANT FUNDS FROM IDENTIFIED GRANTOR AUTHORITIES. WHEREAS, the Colorado Department of Transportation (CDOT) administers some of the State’s grants and funding programs associated with traffic safety education and enforcement programs, including: Transportation Alternative Program, Multi-Modal Options Fund, and Safe Routes to School; WHEREAS, the Denver Regional Council of Governments (DRCOG) administers several pools of grant funds through the DRCOG TIP, as well as grants to meet needs associated with regional transportation planning, regional growth and development planning, older adult programs, and regionalized planning; WHEREAS, Arapahoe County Open Spaces oversees funds generated by the Open Space sales and use tax for the development and enhancement of local parks, trails and open spaces, environmental and cultural education/interpretation and planning projects; WHEREAS, Great Outdoors Colorado (GOCO) offers competitive grants for outdoor recreation and land conservation projects in the State of Colorado; WHEREAS, other Federal, State, Local governmental agencies and not for profit organizations also provide competitive grants and grant funds, including the Arapahoe County 18th Judicial District, Federal Bureau of Reclamation, Colorado State Historical Fund and Keep America Beautiful; WHEREAS, the Englewood City Council has historically approved the application for and acceptance of grant funds from these organizations; WHEREAS, these organizations often provide little notice when they announce the availability of grant monies; WHEREAS, this Resolution will authorize the City of Englewood, including Boards and Commissions, to apply for and accept grants that do not require investment of City funds other than in-kind services, such grants to be sought from the identified grantor organizations for various City projects related to traffic safety education and enforcement, planning, recreation, cultural arts/ education/interpretation, land use, and similar projects that benefit the City of Englewood for the 2020, 2021 and 2022 fiscal years; WHEREAS, this Resolution will authorize the Administrative Departments under the authority of the City Manager of the City of Englewood to apply for grants that require matching funds, if such matching funds are both within the City Manager’s spending approval authority as detailed within the City of Englewood Purchasing Policy and approved within the City’s budget; and WHEREAS, application for any grant funds not otherwise described herein shall require approval from the City Council. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section 1. IN-KIND SERVICES. The Administrative Departments of the City of Englewood, Page 179 of 206 2 including Boards and Commissions, under the direction of the City Manager or his designee, are hereby authorized to apply for grants from CDOT, DRCOG, Arapahoe County Open Space, GOCO, Federal Bureau of Reclamation, Arapahoe County 18th Judicial District, Colorado State Historical Fund, Keep America Beautiful, and other Federal, State, Local and Not For Profit organizations providing grants to fund traffic safety education and enforcement, planning, recreation, cultural arts/education/interpretation, land use, and other projects that benefit the City of Englewood, when such grants do not require investment of City funds other than in-kind services, all during the years 2020, 2021 and 2022. Section 2. MATCHING FUNDS. The Administrative Departments of the City of Englewood, under the direction of the City Manager, are hereby authorized to apply for grant funds from CDOT, DRCOG, Arapahoe County Open Space, GOCO, Arapahoe County 18th Judicial District, Colorado State Historical Fund and Keep America Beautiful, and other Federal, State, Local and Not for Profit organizations providing grants to fund traffic safety education and enforcement, planning, recreation, cultural arts/education/interpretation, land use, and similar projects that benefit the City of Englewood, when such grants require matching funds if such matching funds are both within the City Manager’s spending approval authority as detailed within the City of Englewood Purchasing Policy and approved within the City’s budget, all during the years 2020, 2021 and 2022. Section 3. REIMBURSEMENT. The City of Englewood, under the direction of the City Manager or his designee, is hereby authorized to apply for reimbursement for grant funds from CDOT, DRCOG, Arapahoe County Open Space, GOCO, Arapahoe County 18th Judicial District, Colorado State Historical Fund, Keep America Beautiful and other Federal, State, Local and Not for Profit organizations providing grants to fund participation in traffic safety education and enforcement, planning, recreation, cultural arts/education/interpretation, land use, and similar projects that benefit the City of Englewood, all during the years 2020, 2021 and 2022. ADOPTED AND APPROVED this 8th day of September, 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 __, Series of 2020. Stephanie Carlile, City Clerk Page 180 of 206 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Steve Simon DEPARTMENT: Utilities DATE: September 8, 2020 SUBJECT: Bureau of Reclamation Grant Application Resolution DESCRIPTION: Resolution authorizing submittal of a grant application in the amount of $500,000 to the Bureau of Reclamation for funding of flat rate to metered water service conversion. RECOMMENDATION: Utilities Deputy Director, Steve Simon, will present to council and recommend city council authorize, by resolution, submittal of a grant application to the Bureau of Reclamation in the amount of $500,000 to provide financial assistance for converting flat rate water customers to metered service. PREVIOUS COUNCIL ACTION: None SUMMARY: The U.S. Bureau of Reclamation’s WaterSMART Water and Energy Efficiency Grant program provides funding to support water conservation and efficiency projects. The funding is provided on a 50% matching basis. In 2019, the Bureau awarded 54 projects – a total of $41,000,000 in grant funds. Staff is recommending a grant application of $500,000 to provide financial assistance in support of the City’s important initiative to take a more proactive approach in converting flat rate customers to metered service. The $500,000 funding request represents the maximum funding level that staff believes provides the best opportunity for successful award. Approved grant- funded projects require completion within two years of execution of the grant agreement. The inclusion of the City’s 50% match to the $500,000 funding request results in a total program budget of $1,000,000. It is anticipated that this amount will convert approximately 500 customers from flat rate to metered service, which is about 40% of the remaining flat rate customers. The conversions will be conducted over a two-year period pending successful award of the grant funds. It is intended that City of Englewood in-house meters division staff will perform all of the grant funded conversions. If competing priorities prevent internal completion of the work within the two-year requirement, external contracted resources can be engaged to assist. Current City ordinance requires flat rate conversion only when property ownership changes. When this occurs, the customer is financially responsible for all parts required for the conversion Page 181 of 206 plus a 20 percent escalator. City staff performs the labor for installation at no cost to the customer. Flat rate customers can also voluntarily seek conversion to metered service. ANALYSIS: Grant funding will allow the City to take a more proactive approach in converting flat rate customers to metered service. With 50% matching grant funds, the City can offset some of the costs associated with the conversion. Staff will identify the highest priority flat rate accounts and initiate the conversion in a cooperative outreach program with affected customers. In addition to the conservation benefit, the project will also benefit many of the converted customers by potentially reducing their water bill. FINANCIAL IMPLICATIONS: The 2021 proposed water enterprise fund budget includes $840,000 for conversion of flat rate customers to metered service. This budget amount exceeds the minimum matching requirement for the grant of $500,000. ALTERNATIVES: The alternative to not authorizing the Resolution is to rely exclusively on city and customer funding for flat rate to meter conversions. This reduces the annual number of flat rate to meter conversions that can be executed within the available funding. CONCLUSION: Staff recommends city council approve, by Resolution, authorization to submit an application in the amount of $500,000 to the Bureau of Reclamation grant funding. If successful, the City will be obligated to match $500,000 for the work. The 2021 proposed budget includes $840,000 in funding for flat rate to meter conversions. ATTACHMENTS: Resolution Page 182 of 206 1 RESOLUTION NO. ____ SERIES OF 2020 A RESOLUTION AUTHORIZING THE CITY OF ENGLEWOOD, COLORADO, TO FILE AN APPLICATION WITH THE UNITED STATES DEPARTMENT OF INTERIOR, BUREAU OF RECLAMATION, FOR WATERSMART GRANT FUNDS WHEREAS, the United States Department of Interior, Bureau of Reclamation leverages F ederal and non-F ederal funds to support efforts to stretch scarce water supplies and avoid conflicts over water; WHEREAS, through the WaterSMART Water and E nergy Efficiency Grant program, the Bureau of Reclamation provides financial assistance to states, tribes, irrigation districts, water districts, and other entities with water delivery authority to undertake projects that result in quantifiable and sustained water savings and reliability benefits; WHEREAS, the City of Englewood (“City”) desires to apply for $500,000 in grant funds through the Water and Energy Efficiency Grant Program; WHEREAS, the grant funds will provide financial assistance to support the conversion of the City's flat rate water customers to metered service, by the installation of meters at homes and businesses; WHEREAS, the City is required to pay $500,000, a 50% funding match, to the requested grant funds ; WHEREAS, the City has included $840,000 in the 2021 budget to fund the work, which is subject to City Council approval in October 2020; WHEREAS, in the event that a minimum of $500,000 of matching funds in the 2021 budget is not appropriated, the City can withdraw its application without consequences to the City; WHEREAS, the application is due with the Bureau of Reclamation no later than September 17, 2020; WHEREAS, the City will have two (2 ) years from the award date to complete grant-funded work; WHEREAS, conversion of flat rate customers to metered service was identified as a high priority initiative by City leadership and the City's most recent Water Efficiency Plan; WHEREAS, conversion of flat rate customers to metered service has proven to yield substantial conservation savings through financial incentive to reduce consumption and the identification of undetected leaks; and WHEREAS, conversion from flat rate to metered service will benefit many City customers by reducing their overall water bill. Page 183 of 206 2 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT Section 1. The City of Englewood, Colorado, through the Utilities Department is hereby authorized to file an application with the United States Department of Interior, Bureau of Reclamation for WaterSMART grant funds, attached hereto as Exhibit A. ADOPTED AND APPROVED this 8th day of September, 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 ____, Series of 2020. Stephanie Carlile, City Clerk Page 184 of 206 September 3, 2020 Bureau of Reclamation Financial Assistance Operations Attn: Mr. Ned Weakland P.O. Box 25007 MS: 84-27815 Denver, CO 80225 Re: Letter of Support - City of Englewood’s Flat Rate to Metering Conversion Project Dear Mr. Weakland: On behalf of the City of Englewood and its city council, I would like to express the City’s support for the Flat Rate to Metering Conversion Project application under the Bureau of Reclamation’s WaterSMART Water and Energy Efficiency Grants program. The City of Englewood is a vibrant and diverse community of approximately 35,000 residents in the Denver metropolitan area. The City is keenly aware of its important role in managing the water challenges facing the region. One of the most important ways the City believes this to be possible is through improved water conservation and efficiency programs. Converting flat rate customers to metered service is an established approach to improving water efficiency. It provides financial incentive to customers to use less water and identifies system leakage that goes undetected in non-metered systems. The City’s funding request of $500,000, along with the $500,000 match, will allow the City to convert approximately 500 flat rate customers to metered service. The water conserved through this project benefits the City of Englewood and the region by reducing water demands on the South Platte River. The City of Englewood and its council support this important project. Converting the City’s flat rate customers to metered service provides an immediate near-term benefit to Englewood and positions the City well for future planned modernization of our overall metering infrastructure. City leadership has identified this project as a high priority initiative and the City urges your favorable consideration of Englewood’s grant application. Sincerely, Mayor Linda Olson City of Englewood Page 185 of 206 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Kendra Boyd, Ronda Henger DEPARTMENT: Human Resources DATE: September 8, 2020 SUBJECT: Approval of Unum Life & Supplemental Insurance Contract DESCRIPTION: Request to change current Life and Supplemental Insurance Plan from Voya to Unum in order to save the City money RECOMMENDATION: Staff recommends Council approve, by Motion, the Unum Life & Supplemental Insurance contract. SUMMARY: Currently, the City uses Voya as our third party administrator for Life and Supplemental Insurance Plans. Recently, Voya submitted the renewal rates for 2021 indicating that rates would be increasing by 7.6%. As part of our due diligence to ensure cost competitiveness, we went to Market to compare benefits that are currently offered by Voya (Life Insurance, Accidental Death & Dismemberment (AD&D), Long Term Disability (LTD), Critical Illness and Accident). Negotiated proposals were provided by Voya, Unum, Sun Life and Lincoln Financial. Unum’s proposal, of matched or exceeded plan designs, came back with a 25% savings to both the City and Employees compared to our current plan (see Figure 1). Unum also provides additional services: 1. Leave & Absence Management - a service that provides expert assistance with complicated Leave of Absences like Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), Paid Family Leave (PFL) and Families First Coronavirus Response Act (FFCRA). Unum can ensure that the City is in compliance with the ever- changing laws and make sure that our employees are getting the time off they're entitled to - helping us avoid costly fines and legal fees. 2. Employee Assistance Program (EAP) - a service that provides a comprehensive package of work/life support services to employees and their immediate family members. The EAP is designed to help employees cope with simple questions to complex issues, by giving them information and confidential practical support on a range of everyday issues including work, family, relationships, money and health. This program also includes expert legal advice and face-to-face counselling sessions. We are recommending that we also add these two valuable services to our contract, still saving the City almost 10% on the service overall (see Figure 2). Page 186 of 206 Both Ronda Henger, Human Resources Director and Kendra Boyd, Senior Benefits Administrator have worked with Unum at previous employers and have had excellent experiences with the company. ANALYSIS: Figure 1: Figure 2: FINANCIAL IMPLICATIONS: By switching from Voya to Unum, we can save the City almost 10% over our current spend. CONCLUSION: Based on the information shared during Unum’s finalist presentation, their competitive financial offer, Kendra’s and Ronda’s prior experience with them, and Gallagher’s (our insurance broker) experiences working with them on behalf of other clients, we are recommending we change from Voya to Unum for our life, disability, accident and critical illness programs and EAP for a January 1, 2021 effective date. We’re further recommending we outsource our Leaves Administration to Unum for the same effective date. Page 187 of 206 Unum is a registered trademark and marketing brand of Unum Group and its insuring subsidiaries. CS-1062- Unum August 3, 2020 City of Englewood & Unum Contract – Long Term Disability Insurance, Basic Life and Accidental Death & Dismemberment (AD&D), Voluntary Life and Accidental Death & Dismemberment, Family Medical Leave Administration and EAP Effective date 1/1/2021 Long Term Disability Insurance • Rate .32 per $100 covered payroll, current payroll volume $1,962,248/month, estimated annual premium $75,350. • Rate guarantee to 1/1/2023. • Class 1: MSC/MSCH Employees including Fire Marshall, Police Chief and EEA Employees. Class 2 Police Officers when they reach age 55 years old, 25 years of service and are not FPPA eligible. • Elimination Period 90 days Class 1, 180 days Class 2. • Maximum benefit duration to age 65. • Benefit amount: 60% of earnings to a maximum monthly benefit of $7,000. • Proportionate Benefit for Partial/Residual disabilities. • 3/12 preexisting condition limitation. • 24 month mental illness limitation. • Additional benefit of 10% to $5,000/month for loss of 2 Activities of Daily Living or Cognitive Impairment. Basic Life/AD&D • Rates .12 per $1,000 Life, .02 per $1,000 AD&D, estimated annual premium $40,611 Life and $6,768 AD&D. • Rate guarantee to 1/1/2023. • Benefit 1x earnings to a maximum of $250,000, minimum $35,000. • Guaranteed Issue amount $250,000. • Waiver of Premium included. • Age reductions to 65% at age 65, to 50% at age 70. Voluntary Life/AD&D • Age Banded rates, estimated annual premium $120,000 (depends on enrollment). • Rate guarantee to 1/1/2024. • Employee benefit options in $10,000 increments to 5x earnings or $500,000. Guaranteed Issue $200,000. • Spouse benefit options in $5,000 increments to 100% of employee elected amount or $250,000. Guaranteed Issue $50,000. Kenneth W Kelley Unum, Plaza Tower One 6400 South Fiddler’s Green Circle Suite 1800 Greenwood Village, CO 80111 Tel 303.218.5103 Fax 303.218.5102 Toll Free 800.784.8689 ext 85103 kkelley@unum.com Page 188 of 206 Page 189 of 206 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Kendra Boyd, Ronda Henger DEPARTMENT: Human Resources DATE: September 8, 2020 SUBJECT: Approval of Ultimate Software Benefits Prime Contract DESCRIPTION: Request to change Ultimate Software Benefits module from a basic module to Benefits Prime module in order to save the City money RECOMMENDATION: Staff recommends Council approve, by Motion, the Benefits Prime Contract. SUMMARY: Our current contract with Ultimate Software includes a basic Benefits Admin module that will provide web based open enrollment for employees, automated life event management, and automated interfaces with third parties. The module is very basic though, and many of our current manual processes will continue if we choose to move forward with this module. UltiPro Benefits Prime will enhance service for an additional $20,000 and allow the City to discontinue Liaison which currently costs the City $30,000. ANALYSIS: UltiPro Benefits Prime module provides a modern and intuitive benefits experience and delivers an easy, seamless user experience that simplifies benefits selection. It also allows employees to access helpful educational tools, receive personalized recommendations, and navigate toward smarter benefits choices for themselves and their families. This will increase engagement and keep employees informed about their enrollment progress. With Benefits Prime, our employees will have access to decision-support tools to choose the right benefits and a personalized dashboard with robust reporting capabilities. Additionally, our Benefits Administrator will save time with automated processes and billing- reconciliation tools. Having this module will allow us to discontinue our contract with Liazon. Liazon is a broker company that operates private benefits exchanges for businesses. They help to simplify the process of selecting benefits with technology and education so that people can make informed decisions. Benefits Prime will provide these services (and more) for our employees. We are recommending that we switch to Benefits Prime for a better employee/employer experience. If approved, we'd like to implement Benefits Prime this month so we can prepare of open-enrollment in early November 2020. Page 190 of 206 Add Benefits Prime - $20,000 annual subscription fee Discontinue Liazon - $30,000 annual service fee FINANCIAL IMPLICATIONS: Annual savings to the City of $10,000 CONCLUSION: Based on the information above and attached, we are recommending we change from Benefits Admin to Benefits Prime for our benefits administration with a September 9, 2020 effective date. Page 191 of 206 BENEFITS ADMINISTRATION & BENEFITS PRIME FEATURE COMPARISON ADMINISTRATION Configure content for new hires vs. Open Enrollment vs. Life Event changes Integration with Carriers for Evidence of Insurability process Updates based on changes to eligibility criteria such as job, salary, address, etc. Ability to hide dependent plans or options in a contingency situation until the parent plan is selected Evidence of Insurability Administration Different Evidence of Insurability conditions for late entrant vs. new hire Automatic reinstatement of benefits when rehired Qualified Medical Child Support Order management COVERAGE Update life event after OE elections Support COBRA events for loss of coverage Future dating life Event elections Only display HSA Plans when HSA qualified medical elections have been made Present life insurance amounts Define contribution amounts BENEFITS ADMIN BENEFITS PRIME SAME FOR ALL YES, FOR SOME— — MANUAL AUTOMATIC MANUAL SINGLE EOI FOR ALL — WITH QLE COMPLETION CURRENT YEAR ONLY CURRENT & FUTURE YEARS REQUIRES ADDITIONAL INTERVENTION — — MULTIPLES OF SALARY — 800.432.1729 | ultiproinfo@ultimatesoftware.com | www.ultimatesoftware.com © The Ultimate Software Group, Inc. 2020. All rights reserved. Ultimate Software™ is a trademark of The Ultimate Software Group, Inc. | UltiPro® is a registered trademark of The Ultimate Software Group, Inc. Page 192 of 206 ACCESSIBILITY & SUPPORT Provide benefits coverage via mobile device Embedded benefits education for employees Email confirmation statements Electronic Data Interchange history Access to historical benefit elections Only display contingent plans when parent plan is elected Decision Support for employees BILLING Support Life Calculation costs Calculate benefits with multiple salaries Access to Audit History Bill Reconciliation tools Connection to payroll schedule for deduction calculations of FSA, HSA Salary banded premiums Maximum spouse benefits elections as a percent of employee election - life insurance coverage Life benefit maximum is lesser of fixed amount or multiple of salary Support Age Reduction Schedule BENEFITS ADMIN BENEFITS PRIME — LINKS CAN BE INCLUDED VIEW ELECTIONS & COVERAGE — SOME FILE TYPES ARE VIEWABLE — REQUIRES COMBINATION OF AUDIT AND BENEFIT HISTORY ENROLL IN AND VIEW ELECTIONS & COVERAGE — — BASED ON EE AND/OR SPOUSE DOB CAN BE ENTERED BY A PER PAY PERIOD AMOUNT OR ANNUAL AMT WITH LOOKING AT YTD CAN REFER TO A PAYROLL CALENDAR BUT DOESN’T LOOK AT PAYROLL YTD MANUAL WORK NEEDED NO, MUST BE MANUALLY AUDITED NO, MAX IS A FLAT AMOUNT BASED ON EMPLOYEE DOB BASED ON EE AND/OR SPOUSE DOB 800.432.1729 | ultiproinfo@ultimatesoftware.com | www.ultimatesoftware.com © The Ultimate Software Group, Inc. 2020. All rights reserved. Ultimate Software™ is a trademark of The Ultimate Software Group, Inc. | UltiPro® is a registered trademark of The Ultimate Software Group, Inc. Page 193 of 206 2019 1 UltiPro Benefits Prime Supplement to The Ultimate Software Group, Inc. SaaS Agreement \ap_4_\ This UltiPro Benefits Prime Supplement (the “Supplement”) dated as of July 16, 2020 (“Effective Date”), by and between The Ultimate Software Group, Inc. (hereafter “Ultimate Software”) and City of Englewood (hereafter “Customer”). Whereas, Ultimate Software and Customer entered into The Ultimate Software Group, Inc. SaaS Agreement Agreement with an effective date of February 11, 2020 (hereafter “Agreement”). Whereas, Customer desires to purchase UltiPro Benefits Prime (‘Services”) from Ultimate Software in accordance with the terms and conditions set forth below. Now Therefore, it is agreed as follows: 1. Pricing Schedule: Current Number of Compensated Employees: 405 Current Number of Part-Time/ Seasonal Employees: 160 A. Subscription Fee $3.00 per Compensated Employee per month Plus $3.00 per Part-Time/ Seasonal Employee per month The Subscription Fee above is part of the Subscription Offering and is quoted on a Per Employee Per Month (herein referred to as “PEPM”) basis. The computed monthly subscription amount (number of Compensated Employees and Part-Time/ Seasonal Employee multiplied by the Subscription Fee) may increase or decrease if the number of Compensated Employees and Part- Time/ Seasonal Employee increases or decreases but in no event, shall the monthly Subscription Fee be calculated on less than 405 Compensated Employees and 160 Part-Time/ Seasonal Employees per month. After the Initial Term (as defined in the Agreement), Ultimate Software may increase the fees herein pursuant to the increase provision as set forth in the Agreement. B. UltiPro Launch Fee $10.00 per Compensated Employee (not including travel and expenses) Plus $10.00 per Part-Time/ Seasonal Employee (not including travel and expenses) UltiPro Launch shall be provided to Customer for only the services as set forth in the UltiPro Launch Overview–UltiPro Benefits Prime document which is made a part hereof and incorporated by reference as Exhibit A. Services outside of the scope of the UltiPro Launch Overview – UltiPro Benefits Prime document shall be provided for a flat fee that shall be quoted to Customer. Said services will not be provided without a work order executed by both parties. 2. Payment Terms: A. Subscription Fee The Subscription Fees are due monthly in arrears based upon the actual number of employees, subject to the minimums as set forth in this Agreement, and invoiced on or about five (5) days following the end of each month commencing on the Commencement Date. DocuSign Envelope ID: 702EEB3A-F13B-49C9-AED8-F312A53BBE4C In Process Page 194 of 206 2019 2 B. Subscription Fee - Direct Debit a. Customer agrees that it shall allow Ultimate Software to direct debit its designated bank account for the applicable invoice amount on the twenty first (21) day of Customer’s receipt of invoice; and b. Customer must provide Ultimate Software with written notification of any disputed amount with regard to any invoice no later than ten (10) days from its receipt of invoice; and c. Customer shall provide Ultimate Software with banking information and a ll other required information needed to facilitate the invoicing process within five (5) days from the Effective Date of this Supplement. B. UltiPro Launch Fee (i) The amount due on the Effective Date of this Supplement. $5,650.00 3. Term and Termination: This Supplement will begin on the Effective Date as set forth above and shall be coterminous with the Agreement. Either party shall have the right to terminate this Supplement upon thirty (30) days prior written notice upon any breach hereof by the other party, provided the party in breach shall not have cured such breach during such thirty (30) day period. Upon termination of this Supplement, all rights granted to Customer will terminate and revert to Ultimate Software. 4. Notwithstanding anything to the contrary, although Ultimate Software remains responsible for UltiPro Benefits Prime; (i) Ultimate Software reserves the right to have Customer’s Confidential Information processed, managed, and/or stored with PlanSource Benefits Administration, Inc. and its subcontractors, and (ii) UltiPro Benefits Prime shall be provided to Customer in accordance with the standard SaaS environment, security set up, and other policies and procedures of PlanSource Benefits Administration, Inc. and its subcontractors, and not those of Ultimate Software. 5. The Warranty provisions as set forth in the Agreement shall include the addition of the following: ULTIMATE SOFTWARE WARRANTS THAT ULTIPRO BENEFITS PRIME WILL SUBSTANTIALLY PERFORM IN ACCORDANCE WITH THE ULTIPRO BENEFITS PRIME ON LINE DOCUMENTATION. 6. The UltiPro Benefits Prime launch services project team is assembled using team members from Ultimate Software, Ultimate Software Certified Partner and/or PlanSource Benefits Administration, Inc. and its subcontractors to assist in the performance of the UltiPro Benefits Prime launch or consulting services under this Agreement. Customer hereby authorizes access by Ultimate Software, Ultimate Software Certified Partner, and PlanSource Benefits Administration, Inc. and its subcontractors to the Customer information necessary to perform such services, which may include access to Customer data (including Customer Confidential Information). 7. All other terms and conditions of the Agreement are reaffirmed and remain unchanged by this Supplement. In the event of a conflict between the terms of this Supplement and the Agreement, the terms of this Supplement will govern. 8. The parties agree that any signature (including but not limited to any electronic symbol attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record) hereto shall have the same legal validity and enforceability as a manually executed signature to the fullest extent permitted by applicable law, and the parties hereby waive any objection to the contrary. This Supplement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original of this Supplement but all counterparts together, shall constitute one and the same instrument. Each counterpart may be executed by electronic signature or manual signature. Delivery of an executed counterpart of this Supplement by telecopier or facsimile transmission or other electronic means shall be effective as delivery of a manually executed counterpart of this Supplement. DocuSign Envelope ID: 702EEB3A-F13B-49C9-AED8-F312A53BBE4C In Process Page 195 of 206 2019 3 IN WITNESS WHEREOF, the Parties have hereto by their duly authorized representatives executed this Supplement. City of Englewood The Ultimate Software Group, Inc. By: \s1\ By: \s3\ Name: \n1\ Name: \n3\ Title: \t1\ Title: \t3\ Date: \d1\ Date: \d3\ CIT1034 DocuSign Envelope ID: 702EEB3A-F13B-49C9-AED8-F312A53BBE4C Ronda Henger In Process Page 196 of 206 2019 4 Exhibit A UltiPro Launch Overview – UltiPro Benefits Prime Ultimate Software’s UltiPro Launch methodology provides proven and repeatable processes that enable project teams to measure progress and results and offers a solid knowledge transfer from Ultimate Software to the Customer. It is supported with standard tools, templates and proven training paths that deliver a successful launch of the UltiPro Software (“Launch” or “UltiPro Launch”). Ultimate Software partners with the Customer throughout the UltiPro Launch process performing tasks such as a business requirements analysis through discovery workshops, system configuration, data conversion, interface development, testing cycles, production support, and project management. With UltiPro Launch, Ultimate Software uses its proven methodology to provide training and services to deploy the UltiPro Software. UltiPro Launch will be delivered as described in this document. Roles and Responsibilities: UltiPro Launch assumes Customer participation throughout the process as defined in the Roles and Responsibilities and Project Team Composition sections of this document. Ultimate Software and Customer’s roles and responsibilities are defined below. Please note that Ultimate Software provides training services during each phase of the UltiPro Launch as needed. Customer is expected to attend appropriate training during the UltiPro launch process. To maximize the value of the UltiPro Software, standard training services are included throughout the life of the UltiPro Software solution. Ultimate Software Responsibilities Project Management  Manage the project tasks and deliverables.  Resolve project issues.  Provide Customer communications and general project-related management activities. Planning and Discover Phases  Provide access to UltiPro Benefits Prime.  Facilitate analysis meetings. Build Phase  Configure UltiPro Benefits Prime.  Determine plan for updating UltiPro Benefits Prime with demographic and coverage data where applicable.  Execute data conversion plan.  Coordinate benefit interfaces (if purchased) Test Phase  Perform testing with Customer. Deploy Phase  Provide administrator user support for the first production use of UltiPro Benefits Prime.  Perform project wrap-up activities, including, closing open issues. Customer Responsibilities Project Management  Coordinate all Customer deliverables to ensure they are being met per the project timeline.  Manage all roll-out activities to employees. Planning and Discover Phases  Gather all available policy documentation related to benefits. DocuSign Envelope ID: 702EEB3A-F13B-49C9-AED8-F312A53BBE4C In Process Page 197 of 206 2019 5  Participate in analysis meeting with Ultimate Software.  Facilitate rapid review, feedback, and signoff on all project documentation. Build Phase  Review configuration performed by Ultimate Software.  Participate in plan for data conversion.  Provide data test files and final conversion files as agreed upon in planning  Provide carrier contact details and carrier file requirements (if purchasing interfaces) Test Phase  Perform testing with Ultimate Software. Deploy Phase  Assure that adequate end-user training has been completed before the start of production oper ations.  Share project wrap-up activities, including reviewing and finalizing the open issues list. Project Team Composition: Resource allocation and commitment are key drivers for a successful UltiPro Launch of UltiPro Benefits Prime. Anticipated resources for this project are listed below. Ultimate Software Resources – The Ultimate Software project team is comprised of experienced industry experts specializing in specific areas of the UltiPro Launch. The team roles and key responsibilities are listed be low: Benefits Prime Consultant - This consultant will be the primary Ultimate Software representative assigned to Customer’s project to assist with the UltiPro Launch of UltiPro Benefits Prime. His or her involvement varies from project to project based upon the Customer requirements and complexities. The analysis process and project plan will define the level of effort for this resource on the project. Customer Resources – Average Resource Allocation for Typical Project* Benefits Specialist - The Benefits specialist is the Customer’s primary HR representative and designated decision maker in the area of benefit requirements. System Administrator - The system administrator is the Customer’s primary resource for system configuration, system knowledge, and application security. UltiPro Launch Guidelines/Assumptions:  Customer will exercise services within the defined services period. The typical UltiPro Launch of UltiPro Benefits Prime is four (4) months. UltiPro Launch shall expire six (6) months after the kick-off of the Benefits Prime UltiPro Launch. If additional services are required, they will be contracted separately.  Ultimate Software Customer will complete tasks as indicated in the roles and responsibilities of this document and as assigned in the final project plan by mutually agreed upon due dates.  The UltiPro Launch of UltiPro Benefits Prime do not include the creation of benefit interfaces. Benefit interfaces are $4,000.00 each. Customer will authorize such services via a work order.  In some instances, a customer’s current configuration must be changed and historical data must be modified to support this change. Data conversion services are not included in the scope of this project and will be quoted separately if needed. DocuSign Envelope ID: 702EEB3A-F13B-49C9-AED8-F312A53BBE4C In Process Page 198 of 206 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Alison McKenney Brown DEPARTMENT: City Attorney's Office DATE: September 8, 2020 SUBJECT: Executive Session under C.R.S. Section 24-6-402(4)(a) (real property transfer), C.R.S. Section 24-6-402(4)(e)(1) (negotiations), and C.R.S. Section 24-6-402(4)(b) (conference with attorney). DESCRIPTION: Executive Session for Attorney Client Communications regarding legal matters arising in association with redevelopment matters. RECOMMENDATION: City Manager Shawn Lewis recommends adjourning into executive session for the following purposes: To discuss the purchase, acquisition, lease, transfer, or sa le of real, 24Section C.R.S. under personal, property other or interest -6-402(4)(a); determining positions relative to matters that may be subject to negotiations; developing strategy for negotiations; and instructing negotiators pursuant to C.R.S. Sectio n 24-6- 402(4)(e)(I); and a conference with an attorney for the local public body for the purpose of receiving legal advice on contracts pursuant to C.R.S. Section 24-6- 402(4)(b). SUMMARY: Following the bankruptcy/foreclosure sale of the Weingarten CityCenter property, the City Council retained the law firm of Kaplan Kirsch Rockwell (KKR) to advise upon and assist in matters that would arise in association with the anticipated redevelopment of a significant portion of the CityCenter development by the part y that would eventually purchase the Weingarten property. Sarah Rockwell has served as the lead counsel in association with the anticipated redevelopment project. The City Council has not yet met with Ms. Rockwell to hear her provide an overview of the legal issues KKR has encountered in this project and will need to address as this project moves forward. This executive session is intended to be an opportunity to receive guidance on negotiations and contracts regarding real property. ____1_____ To discuss the purchase, acquisition, lease, transfer, or sale of real, personal, or other property interest under C.R.S. Section 24-6-402(4)(a); ____2____ Determining positions relative to matters that may be subject to negotiations; developing strategy for negotiations; and instructing negotiators pursuant to C.R.S. Section 24-6-402(4)(e)(I); Page 199 of 206 ____3_____ Conferences with an attorney for the local public body for the purpose of receiving legal advice on contracts pursuant to C.R.S. Section 24-6- 402(4)(b) ATTACHMENTS: Form for recessing into executive session. Page 200 of 206 1 SUGGESTED PROCEDURES FOR EXECUTIVE SESSIONS A. Minutes of each executive session shall be kept by tape recording. B. If a different tape recorder will be used than the tape recorder normally used in Council/Board meetings, the tape recorder shall be tested before going into executive session to make sure it is operating. The tape shall be labeled with the name of the body and the date. C. Because executive session minutes are kept by tape recording, they shall stand approved with no further action. D. The tape recording shall be maintained by the City Clerk in a secured and locked location. E. The tape recording of the executive session shall be maintained for 90 days after the date of the executive session, and shall not be disclosed to any person except as required by law. F. After 90 days the tape recording of the executive session shall be destroyed in conformance with law. Page 201 of 206 2 EXECUTIVE SESSION MOTION FORM September 8, 2020 AT THE REGULAR MEETING Mayor: I MOVE TO GO INTO EXECUTIVE SESSION for the purpose of: ____1_____ To discuss the purchase, acquisition, lease, transfer, or sale of real, personal, or other property interest under C.R.S. Section 24-6-402(4)(a); ____2____ Determining positions relative to matters that may be subject to negotiations; developing strategy for negotiations; and instructing negotiators pursuant to C.R.S. Section 24-6-402(4)(e)(I); ____3_____ Conferences with an attorney for the local public body for the purpose of receiving legal advice on contracts pursuant to C.R.S. Section 24-6-402(4)(b) Present at the executive session will be the following persons: 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 Member Cheryl Wink City Attorney Alison McKenney Brown City Manager Shawn Lewis Attorney Sarah Rockwell, Brad Power, Director of Community Development, Dan Poremba, Chief Redevelopment Officer MAY I HAVE A SECOND? PLEASE VOTE: Note: 2/3 quorum present must vote yes to pass any motion to go into executive session. An executive session may only occur at a regular or special meeting of the body. Council please exit from this Zoom session and join me in your Teams Link. Linda’s Teams Link: Dismiss into executive session Page 202 of 206 3 IN THE EXECUTIVE CHAMBER/MEETING ANNOUNCEMENT 1 - BEFORE EXECUTIVE SESSION COMMENCES The following announcement is to be made by presiding officer at the beginning of the executive session. (MAKE SURE THE TAPE RECORDER IS TURNED ON; DO NOT TURN OFF DURING THE EXECUTIVE SESSION UNLESS SO ADVISED BY THE CITY ATTORNEY) When all are present: City Manager Lewis can you please begin the recording of this Exec. Session? Today’s date is September 8, 2020, and the time is ______________________. For the record, I am Mayor Linda Olson. As required by the Open Meetings Law, this executive session is being electronically recorded. Also present at this executive session are the following persons: Mayor Pro Tem Othoniel Sierra Council Member Joe Anderson Council Member Dave Cuesta Council Member Rita Russell Council Member John Stone Council Member Cheryl Wink City Attorney Alison McKenney Brown City Manager Shawn Lewis Attorney Sarah Rockwell, Brad Power, Director of Community Development, Dan Poremba, Chief Redevelopment Officer This is an executive session for the following purposes: 1) to discuss matters subject to negotiation under C.R.S. Section 24- 6402(4)(a), focusing upon the purchase, acquisition, lease, transfer, or sale of any real, personal, or other property interest; 2) to discuss matters subject to negotiation under C.R.S. Section 24- 6402(4)(e), focusing upon determining positions relative to matters that may Page 203 of 206 4 be subject to negotiations; developing strategy for negotiations; and instructing negotiators; And 3) Receiving legal advice on specific legal questions under C.R.S. Section 246-402(4)(b), focusing upon matters associated with the legal implications associated with the terms of contracts. I caution each participant to confine all discussion to the stated purpose of the executive session, and that no formal action may occur in the executive session. If at any point in the executive session any participant believes that the discussion is going outside the proper scope of the executive session, please interrupt the discussion and make an objection. ANNOUNCEMENT 2 - ATTORNEY CLIENT PRIVILEGED SESSION ANNOUNCEMENTS TO BE MADE AT THE BEGINNING OF EXECUTIVE SESSION FOR LEGAL ADVICE, OR FOR THE DISCUSSION OF LEGAL ADVICE DURING AN EXECUTIVE SESSION WHOSE STATED PURPOSE IS A SUBJECT OTHER THAN LEGAL ADVICE (make sure Announcement No. 1 has been made first) Read by City Attorney: As City Attorney, it is my opinion that the discussion of the matter announced in the motion to go into executive session constitutes a privileged attorney-client communication. I am therefore recommending that no further record be kept of this executive session, unless or until the privileged communication is concluded. If the communication changes from its primary purpose of Attorney/Client Communication into one of the two stated secondary purposes, I will request that the tape recorder be turned back on for those purposes. Mayor: The City Attorney has recommended that no tape recording be made of any portion of this executive session that pertains to information which is privileged as an attorney-client communication. The time is now__________ and I am turning off the tape recorder. Page 204 of 206 5 (turn off tape recorder at this time) (Once the attorney-client communication has finished TURN THE TAPE RECORDER BACK ON) Mayor: The time is now ________________and I have turned the tape recorder back on because the privileged attorney-client communication is concluded. ANNOUNCENMENT 3 - CONCLUDING AN EXECUTIVE SESSION (ANNOUNCEMENT TO BE MADE BY THE PRESIDING OFFICER BEFORE CONCLUDING THE EXECUTIVE SESSION WHILE THE TAPE RECORDER IS RECORDING). Mayor: I hereby attest that this recording reflects the actual contents of the discussion at the executive session and has been made in lieu of any written minutes to satisfy the recording requirements of the Open Meetings Law. The tape will be retained by the City Clerk for a 90-day period. The time now is _______________, and this executive session is concluded. The Governing Body will now return to the open meeting. (turn off tape and return to open meeting) AFTER RETURNING TO THE REGULAR MEETING Page 205 of 206 6 ANNOUNCEMENT 4 - RETURN TO OPEN MEETING STATEMENT TO BE MADE BY THE PRESIDING OFFICER UPON RETURNING TO THE OPEN MEETING The time is now ____________________and the executive session has been concluded. The participants in the executive session were: Mayor Pro Tem Othoniel Sierra Council Member Joe Anderson Council Member Dave Cuesta Council Member Rita Russell Council Member John Stone Council Member Cheryl Wink City Attorney Alison McKenney Brown City Manager Shawn Lewis Attorney Sarah Rockwell, Brad Power, Director of Community Development, Dan Poremba, Chief Redevelopment Officer For the record, if any person who participated in the executive session believes that any substantial discussion of any matters not included in the motion to go into the executive session occurred during the executive session, or that any improper action occurred during the executive session in violation of the Open Meetings Law, I would ask that you state your concerns for the record. Either: 1) Seeing none, may I have a motion to end this executive session? Second: Thank you, please vote. 2) The next agenda item is: (13 b. 1. Council Members Choice) Or 3) Your concern is noted for the record. May I have a motion to end this executive session? Second: Thank you, please vote. 4) The next agenda item is: (13 b. 1. Council Members Choice) Page 206 of 206