No preview available
HomeMy WebLinkAbout2023-08-07 (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. 1000 Englewood Pkwy - Council Chambers Englewood, CO 80110 AGENDA City Council Regular Meeting Monday, August 7, 2023 ♦ 6:00 PM Council Dinner will be available at 5:30 p.m. Study Session begins at 6:00 p.m. Regular Council meeting begins at 7:00 p.m. To view the meeting, please follow this link to our YouTube live stream link: YouTube 1. Study Session Topic a. Director of Finance Jackie Loh will be present to discuss the June 2023 Monthly Financial Report. 6:00 p.m. to 6:10 p.m. Information Presentation: 5 minutes Discussion: 5 minutes 1a b. City Attorney Tamara Niles will be present to discuss proposed Council policies, public comment amendments. 6:10 p.m. to 6:40 p.m. Information and Direction Presentation: 10 minutes Discussion: 20 minutes 1b 2. Call to Order 3. Pledge of Allegiance 4. Roll Call 5. Consideration of Minutes of Previous Session a. Minutes of the Regular City Council Meeting of July 24, 2023. 5a 6. Appointments, Communications, Proclamations, and Recognition a. Recognition of the City reaching SolSmart Bronze designation 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. Page 1 of 553 Englewood City Council Regular Agenda August 7, 2023 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. a. Benjamin Ben-David, an Englewood resident, will address Council. b. C. Ann Dickerson, an Englewood resident, will address Council. c. Pamela Beets, an Englewood resident, will address Council. d. Kathleen Bailey, an Englewood resident, will address Council. 8. Recognition of Unscheduled Public Comment If you would like to sign-up to speak virtually for public comment at the upcoming City Council meeting on Monday, July 19th, please visit Zoom to register or plan to attend the meeting in person. If registering to speak virtually, you will receive a unique and personalized invitation by email to join the meeting. Every speaker who wants to register should sign-up with their own email address. If you do not have an email address or if you have any questions regarding this process, please reach out to the City Clerk's Office at CityClerk@englewoodco.gov or call 303- 762-2430. Citizens may also submit written public comments to the City Clerk's Office at CityClerk@englewoodco.gov until 12 p.m. Tuesday, August 8, 2023. 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. Council Response to Public Comment. 9. Consent Agenda Items a. Approval of Ordinances on First Reading b. Approval of Ordinances on Second Reading. i. CB-33 Recall Special Election 9bi Staff recommends City Council approve an Ordinance for Recall Special Election. Staff: City Clerk Stephanie Carlile ii. CB-35 Approval of the City of Englewood (City) Utilities Department's partnership in the Environmental Protection Agency’s (EPA) WaterSense Program. 9bii Staff recommends City Council approve a an Ordinance EPA WaterSense Program Partnership. Staff: Director of Utilities and South Platte Renew Pieter Van Ry and Utilities Deputy Director Sarah Stone iii. CB 36 - IGA with Arapahoe County for Coordinated Election Services 9biii Page 2 of 553 Englewood City Council Regular Agenda August 7, 2023 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 an Ordinance for an Intergovernmental Agreement between the City of Englewood and Arapahoe County for the November 7, 2023 Coordinated Election. Staff: City Clerk Stephanie Carlile c. Resolutions and Motions i. Contract for Englewood Recreation Center (ERC) Front Desk, Offices and Restroom Renovation 9ci Staff recommends City Council approve, by Motion, Construction Contract for Englewood Recreation Center (ERC) Front Desk, Offices and Restroom Renovation. Staff: City Architect, Melinda Goblirsch 10. Public Hearing Items 11. Ordinances, Resolutions and Motions a. Approval of Ordinances on First Reading i. CB-34 Memorandum of Understanding between the City of Englewood and the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives 11ai Staff recommends City Council approve a Bill for an Ordinance for an MOU between the City of Englewood, and the Bureau of Alcohol, Tobacco, Firearms and Explosives. There are two MOUs attached to this ordinance. Staff: Deputy Chief of Police Vance Fender ii. CB-37 Amending Englewood Municipal Code for the City’s Lead Reduction Program. 11aii Staff recommends City Council approve a Bill for an Ordinance to amend City Municipal Code Title 12, Chapter 1 to give the City the right to access customer properties for the purpose of verifying water service line material for the City’s Lead Reduction Program. Staff: Director of Utilities and South Platte Renew Pieter Van Ry iii. CB-38 Recall Special Election 11aiii Staff recommends City Council approve an Ordinance for District 3 Recall Special Election. Staff: City Clerk Stephanie Carlile b. Approval of Ordinances on Second Reading i. CB-30 Assignment of Private Activity Bonds to Colorado Housing and Finance Authority 11bi Staff recommends City Council approve an Ordinance authorizing an IGA to Assign Private Activity Bonds (PAB) to Colorado Housing and Finance Authority (CHFA) Staff: Director of Community Development Brad Power, and Economic Development Manager Darren Hollingsworth Page 3 of 553 Englewood City Council Regular Agenda August 7, 2023 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. ii. CB-31 Establishing ballot questions to revise City Charter 11bii Staff recommends City Council approve an Ordinance establishing ballot questions to revise City Charter, pursuant to Phase II of the Charter Review Project. Staff: City Attorney Tamara Niles, and outside legal consultants Kathryn Sellers, Hoffman, Parker c. Resolutions and Motions i. Award of Contract to West Fork Construction for the 2023 Alley Grading & Stabilization Project 11ci Staff recommends City Council approve, by Motion, Award of Contract to West Fork Construction for the 2023 Alley Grading Project in the amount of $491,612.50. Staff: Capital Project Engineer II, Devin Keener, and Deputy Director of Public Works - Engineering, Tim Hoos ii. Approval of Change order to CFC #23-083, 2023 Mill and Overlay 11cii Staff recommends City Council approve, by Motion, Approval of Change order to CFC #23-083, 2023 Mill and Overlay. Staff: Deputy Director - Engineering Tim Hoos, and Capital Projects Engineer Devin Keener iii. Approval of a contract with Englewood Arts for use of a portion of the Englewood Civic Center 11ciii Staff recommends City Council approve, by Motion, Approval of a contract with Englewood Arts for use of a portion of the Englewood Civic Center. Staff: City Manager Shawn Lewis, and Deputy City Manager Tim Dodd 12. General Discussion a. Mayor's Choice i. Discuss City Council vacancy applicants and interview selection. ii. Executive Session pursuant to C.R.S. Section 24-6-402(4)(b) for a conference with the City attorney for the purpose of receiving legal advice on specific legal questions regarding pending litigation. b. Council Members' Choice 13. City Manager’s Report 14. Adjournment Page 4 of 553 STUDY SESSION TO: Mayor and Council FROM: Jackie Loh DEPARTMENT: Finance DATE: August 7, 2023 SUBJECT: June 2023 Monthly Financial Report DESCRIPTION: June 2023 Monthly Financial Report RECOMMENDATION: The Monthly Financial Report is informational only and staff seeks input from City Council to clarify or verify the information provided. PREVIOUS COUNCIL ACTION: Staff provides financial updates to City Council each month. During the Study Session discussion, the Director of Finance will review the 2023 June General Fund financials by revenues and expenditures. Sales & Use Tax slides by area are also included in the Appendix of the attached presentation. SUMMARY: Through June 2023, the City of Englewood's General Fund revenues total $33,621,000 which is 52.3% of budgeted revenues, or $3,482,000 higher than the same period in 2022. Total revenue YTD is tracking 11.6% higher than the same period in 2022. Expenditures YTD are $30,624,000 or 47.3% of the budgeted expenditures. Total expenditures YTD are $2,046,000 or 7.2%, higher than those in 2022. Per Council request, any one-time revenues and expenditures for 2023 and 2022 have been adjusted as noted. Please note that the budget column includes the new revenues from the sales & use tax increases and corresponding additional expenditures from 2023 budget supplemental #1 and #2. ANALYSIS: Revenue highlights are below: • Through June 2023, the city has received $6,216,000 in property taxes. Of that total, $3,760,000 went to the General Fund, $465,000 to the EDDA, and the rest to debt service for the Parks and Recreation and Police Building General Obligation (GO) bonds. Page 5 of 553 • Sales & Use Tax remittances total $21,157,000 and are 49.1% of fiscal budgeted revenue; Sales & Use Tax revenue is $1,844,000 higher than the same time last year. Additionally, the Sales & Use Tax audits and voluntary disclosure collections amount to $48,059. • Marijuana Sales Tax accounts for $734,000 of the total Sales & Use Tax revenue YTD and is ($90,000) lower than 2022. • Intergovernmental revenues are higher due to State Highway User Taxes returning to normal collection schedule. 2022 was paused to correct a prior year overpayment. • Charges for services are higher due to the 2022 increase in Water and Sewer administrative fees that were not implemented until July 2022 of nearly $250,000. Also, the new IT cost allocation of $369,000 for software and licenses directly attributable to enterprise funds were recorded in June 2023. • American Rescue Plan Act (ARPA)-the city has been awarded $8,776,000 which was received in two allocations of $4,338,000 each. The second allocation was received on July 5th 2022. For 2022, the General Fund still restricts $360,000 of ARPA funds to be used for homelessness related projects. ARPA funds already spent from the General Fund include $33,000 for Workforce Training, $17,000 for the Vaccine program and $22,000 for Homelessness. 2023 Budget Supplemental #1 authorized spending an additional $79,000 for the Homelessness Action plan and related projects. • Investment Earnings are $548,000 higher than 2022. The 2022 losses were due to a rapid rise in interest rates which resulted in Unrealized Losses. The portfolio, predominantly invested in bonds, is valued at market value each month, so earnings can fluctuate when interest rates move in either direction. Please note that the 2022 December YTD one-time revenues of $188,000 for the sale of the Fire Training Academy, and $138,000 for health insurance savings and $1,119,000 Football Stadium tax refund are subtracted. Expenditures highlights are below: • Across all departments, part of the variance is due to a 5% salary increase for all staff and an additional 2% inflationary increase approved by Council in June 2023. • 2022 debt service included $2,812,000 for the COP payoff. Paying off the COP debt one year early saved the city $30,000 in interest costs. • Expenditure variances for Police, PW and PRLG are also partially due to an increase in internal billings for the yearly vehicle maintenance and CERF charges. The internal rates were temporarily lowered in 2021 and 2022 but have been returned to normal in 2023. Please note that the 2022 December YTD one-time expenditures of ($235,000) for pension contribution credits and $1,418,000 for debt service to pay off the COP’s early have both been subtracted from the operating figures. The YTD Operating surplus (Excess Revenues over/(under) Expenditures) is $2,997,000, compared to the Amended Budgeted Operating Deficit of ($462,000). There is a $138,000 transfer from the Public Improvement Fund for Debt Service and transfers out of ($1,000,000) for capital projects and ($2,175,000) for the Dartmouth Bridge approved by Council as part of 2023 budget supplemental #1. Page 6 of 553 The General Fund – Fund Balance Composition, slide #13, shows a YTD change in total fund balance of ($40,000), which includes the total surplus of $2,997,000 and a net transfer out of ($3,037,000). This deficit includes all one-time items. COUNCIL ACTION REQUESTED: Staff will review the current financial report with Council monthly and welcomes questions and discussion. FINANCIAL IMPLICATIONS: Information included above. CONNECTION TO STRATEGIC PLAN: Governance: Assist the City to become fiscally accountable, effective and efficient. ATTACHMENTS: 2023 June Financial Report Page 7 of 553 June 2023 Monthly Financial Report Presented By: Jackie Loh, Director of Finance Page 8 of 553 General Fund Revenues •Through June 2023, year-to-date revenues are 52.3% of the Fiscal Year 2023 budget. •Through June 2022, year-to-date revenues were 47.0% of the total Fiscal Year 2022 revenues. •Sales and Use Tax Revenue is higher in 2023 than at this time of the year in both 2022 and 2021. •General Fund revenues exclude one-time items as noted.Page 9 of 553 General Fund Revenues •2023 –no one-time adjustments •2022 excludes $188,000 for sale of Fire Training Academy •2022 excludes $138,000 for health insurance savings 2023 2022 Budget Jun-23 % Budget Dec-22 Jun-22 % YTD $ Diff % Diff Revenues Property Tax 5,171,000 3,760,000 72.7%5,237,000 3,793,000 72.4%(33,000) 0.0% Specific Ownership Tax 530,000 222,000 41.9%541,000 221,000 40.9%1,000 0.0% Sales & Use Taxes 41,601,000 20,423,000 49.1%38,772,000 18,489,000 47.7%1,934,000 10.5% Sales Tax - Marijuana - 734,000 1,898,000 824,000 (90,000) -10.9% Cigarette Tax 170,000 38,000 22.4%111,000 41,000 36.9%(3,000) -7.3% Franchise Fees 3,915,000 1,805,000 46.1%3,920,000 1,723,000 44.0%82,000 4.8% Hotel/Motel Tax 25,000 32,000 128.0%64,000 29,000 45.3%3,000 10.3% Licenses & Permits 1,379,000 1,350,000 97.9%3,196,000 1,334,000 41.7%16,000 1.2% Intergovernmental Revenue 1,220,000 482,000 39.5%1,259,000 261,000 20.7%221,000 84.7% Charges for Services 3,830,000 1,884,000 49.2%3,290,000 1,253,000 38.1%631,000 50.4% Parks and Recreation 3,124,000 989,000 31.7%2,420,000 919,000 38.0%70,000 7.6% Fines & Forfeitures 501,000 168,000 33.5%373,000 197,000 52.8%(29,000) -14.7% Investment Earnings 155,000 288,000 185.8%(247,000) (260,000) 105.3%548,000 -210.8% EMRF Rents 1,800,000 951,000 52.8%1,765,000 911,000 51.6%40,000 4.4% Miscellaneous 913,000 495,000 54.2%2,159,000 730,000 33.8%(235,000) -32.2% Total Revenues 64,334,000 33,621,000 52.3%64,758,000 30,465,000 47.0%3,156,000 10.4% One-time Revenues noted below - - (1,445,000) (326,000) 326,000 Total Revenues less one-time items 64,334,000 33,621,000 52.3%63,313,000 30,139,000 47.6%3,482,000 11.6% 2023 vs 2022 Page 10 of 553 Sales and Use Tax Revenues Page 11 of 553 Sales and Use Tax Revenues Page 12 of 553 YTD Sales and Use Tax Collections by Area Business Area $ YTD Variance CY vs PY % YTD Variance CY vs PY YTD New Businesses YTD Closed Businesses YTD Net New (Closed) Businesses Comments Area 1 (7,881) -0.45%14 (10) 4 Area 2 (89,976) 9.33%8 (8) - Area 3 168,390 11.17%11 (11) - Area 4 162,963 20.83%10 - 10 Area 5 (188,390) 23.06%5 (3) 2 Area 6 387,702 24.77%62 (41) 21 Area 7 484,867 17.07%389 (185) 204 Contains opened and closed businesses that are not within the city limits. Area 8 257,657 11.18%- - - Area 13 247,694 -14.76%3 - 3 Area 14 327,615 300.00%7 (2) 5 Marketplace Facilitators were added to this area in 2022. Regular Use (25,538) -4.84%N/A N/A N/A Use tax revenue fluctuates depending on the timing of when businesses replace large ticket items such as operating machinery and equipment. If items purchased outside of Englewood at a local tax rate less than 3.5%, then the tax payer is liable for the difference between the local tax paid and 3.5% tax due. Totals 1,725,102 8.88%509 (260) 249 Page 13 of 553 YTD Sales and Use Tax Collections by Area 2019-2023 2022 2023 % Change $ Change Total Sales & Use Tax Collected 19,422,483$ 21,147,584$ 8.9%1,725,102$ Refunds 84,087$ -$ -100.0%(84,087)$ Unearned Sales Tax 2,100,000$ 2,100,000$ 0.0%-$ Page 14 of 553 General Fund Expenditures •Through June 2023, year-to-date expenditures are 47.3% of the Fiscal Year 2023 budget. •Through June 2022, year-to-date expenditures were 51.7% of the total Fiscal Year 2022 expenditures. •To date, a net of ($3,037,000) has been transferred out of the General Fund. •General Fund expenditures exclude one-time items if noted.Page 15 of 553 General Fund Expenditures •2023 –no one-time adjustments through May •2022 –excludes a one-time credit made for health insurance savings $235,000. •2022 –excludes the one-time debt service payment to pay off the COP’s early ($1,418,000). 2023 2022 Budget Jun-23 % Budget Dec-22 Jun-22 % YTD $ Diff % Diff Expenditures Legislation 296,000 115,000 38.9%276,000 141,000 51.1%(26,000) -18.4% Administration 1,563,000 674,000 43.1%1,229,000 528,000 43.0%146,000 27.7% City Attorney 1,191,000 477,000 40.1%1,002,000 454,000 45.3%23,000 5.1% Court 1,572,000 651,000 41.4%1,171,000 546,000 46.6%105,000 19.2% Human Resources 946,000 526,000 55.6%1,483,000 574,000 38.7%(48,000) -8.4% Finance 2,162,000 859,000 39.7%1,883,000 864,000 45.9%(5,000) -0.6% Information Technology 4,678,000 2,500,000 53.4%3,779,000 2,056,000 54.4%444,000 21.6% Community Development 3,100,000 1,362,000 43.9%3,086,000 1,347,000 43.6%15,000 1.1% Public Works 11,126,000 4,909,000 44.1%7,943,000 4,009,000 50.5%900,000 22.4% Police 18,619,000 8,876,000 47.7%15,923,000 7,794,000 48.9%1,082,000 13.9% Fire and Emergency Management 7,704,000 4,350,000 56.5%7,423,000 4,242,000 57.1%108,000 2.5% Parks, Recreation and Library 9,208,000 4,566,000 49.6%8,303,000 3,834,000 46.2%732,000 19.1% Communications 914,000 401,000 43.9%829,000 321,000 38.7%80,000 24.9% Debt Service 138,000 72,000 52.2%2,974,000 2,911,000 97.9%(2,839,000) -97.5% Contingency 1,579,000 286,000 18.1%228,000 140,000 61.4%146,000 0.0% Total Expenditures 64,796,000 30,624,000 47.3%57,532,000 29,761,000 51.7%863,000 2.9% One-time Expenditures noted below - - (1,183,000) (1,183,000) 1,183,000 Total Expenditures less one-time items 64,796,000 30,624,000 47.3%56,349,000 28,578,000 50.7%2,046,000 7.2% 2023 vs 2022 Page 16 of 553 General Fund Expenditures by Category •The Contractual Services Expenditure category includes items such as the fire and emergency services contract, software maintenance agreements and insurance costs. •The Commodities Expenditure category includes items such as fuel, chemicals and building supplies. •The General Fund Capital Expenditure category is primarily CERF vehicle replacement costs. Expenditures Budget Jun-23 % Budget 12/31/2022-Actual Jun-22 % YTD $ Diff % Diff Personnel 38,532,000 17,164,000 44.5%33,532,000 15,180,000 45.3%1,984,000 13.1% Commodities 2,415,000 1,061,000 43.9%2,262,000 952,000 42.1%109,000 11.4% Contractual Services 20,697,000 11,269,000 54.4%17,777,000 9,903,000 55.7%1,366,000 13.8% Capital 3,014,000 1,056,000 35.0%987,000 815,000 82.6%241,000 29.6% Debt Service 138,000 74,000 53.6%2,974,000 2,911,000 97.9%(2,837,000) -97.5% Total Expenditures 64,796,000 30,624,000 47.3%57,532,000 29,761,000 51.7%863,000 2.9% One-time Expenditures - - (1,183,000) (1,183,000) 1,183,000 Total Expenditures less one-time items 64,796,000 30,624,000 47.3%56,349,000 28,578,000 50.7%2,046,000 7.2% 2023 vs 202220232022 Page 17 of 553 General Fund Operating Surplus (Deficit) •Through June 2023, year-to-date operating revenues exceeded operating expenditures by $2,997,000. •Through June 2022, year-to-date operating revenues exceeded operating expenditures by $1,561.000. 2023 2022 Revenues Budget Jun-23 % Budget 12/31/2022-Actual Jun-22 % YTD $ Diff % Diff Total Revenues 64,334,000 33,621,000 52.3%64,758,000 30,465,000 47.0%3,156,000 10.4% One-time Revenues - - (1,445,000) (326,000) 326,000 Total Revenues less one-time items 64,334,000 33,621,000 52.3%63,313,000 30,139,000 47.6%3,482,000 11.6% Expenditures Budget Jun-23 % Budget 12/31/2022-Actual Jun-22 % YTD $ Diff % Diff Total Expenditures 64,796,000 30,624,000 47.3%57,532,000 29,761,000 51.7%863,000 2.9% One-time Expenditures - - (1,183,000) (1,183,000) 1,183,000 Total Expenditures less one-time items 64,796,000 30,624,000 47.3%56,349,000 28,578,000 50.7%2,046,000 7.2% Operating Surplus (Deficit)(462,000) 2,997,000 6,964,000 1,561,000 2023 vs 2022 2023 vs 202220232022 Page 18 of 553 General Fund Transfers 2023 Transfers into the General Fund From the Public Improvement Fund for debt service 138,000$ Total transfers into the General Fund 138,000 2023 Transfers out of the General Fund To the Public Improvement Fund for Dartmouth Bridge 2,175,000 To the Public Improvement Fund for other capital projects 1,000,000 Total transfers out of the General Fund 3,175,000$ Net General Fund Transfers (3,037,000)$ Page 19 of 553 General Fund –Fund Balance Composition 2019 2020 2021 2022 2023 YTD Beginning total fund balance $ 20,418,000 $ 22,131,000 $ 24,936,000 $ 17,043,000 $ 24,158,000 Net change in fund balance 1,713,000 2,805,000 (7,893,000) 7,115,000 (40,000) Ending total fund balance 22,131,000 24,936,000 17,043,000 24,158,000 24,118,000 Designated fund balance TABOR - Restricted (1,730,000) (1,720,000) (1,800,000) (2,100,000) (2,100,000) LTAR - Committed (4,995,000) (4,995,000) (95,000) (95,000) (95,000) ARPA funding - Restricted for specific projects - - (404,000) (360,000) (360,000) Stadium District refund - Restricted for youth activities - - - (1,119,000) (1,119,000) Unrestricted Reserve = 16.7% of total revenues (8,614,000) (8,985,000) (9,258,000) (10,840,000) (10,821,000) Total designated fund balance (15,339,000) (15,700,000) (11,557,000) (14,514,000) (14,495,000) Unassigned fund balance 6,792,000$ 9,236,000$ 5,486,000$ 9,644,000$ 9,623,000$ $6.8 $9.2 $5.5 $9.6 $9.6 $8.6 $9.0 $9.3 $10.8 $10.8 $- $- $- $1.1 $1.1 $0.4 $0.4 $5.0 $5.0 $0.1 $1.7 $1.7 $1.8 $2.1 $2.1 $0.0 $2.5 $5.0 $7.5 $10.0 $12.5 $15.0 $17.5 $20.0 $22.5 $25.0 2019 2020 2021 2022 2023 YTD Unassigned fund balance Unrestricted Reserve = 16.7% of total revenues Stadium District refund - Restricted for youth activities ARPA funding-Restricted LTAR - Committed TABOR - Restricted Page 20 of 553 Appendix -Area Sales Tax Slides Page 21 of 553 City of Englewood Sales Tax Area Map Page 22 of 553 Area 1 Sales Tax CityCenter (Formerly Cinderella City) 1,574,052 1,708,154 1,840,014 1,763,927 1,756,046 0 250,000 500,000 750,000 1,000,000 1,250,000 1,500,000 1,750,000 2,000,000 2019 2020 2021 2022 2023 Page 23 of 553 Area 2 Sales Tax South of Yale, north & south side of Jefferson Ave/US 285 between Bannock and Sherman 1,176,997 1,148,795 1,318,352 1,441,317 1,351,341 0 200,000 400,000 600,000 800,000 1,000,000 1,200,000 1,400,000 2019 2020 2021 2022 2023 Page 24 of 553 Area 3 Sales Tax South of Jefferson Ave/US 285 between Bannock & Sherman -north side of Belleview between Logan & Delaware 1,263,038 1,318,543 1,562,957 1,737,475 1,905,865 0 250,000 500,000 750,000 1,000,000 1,250,000 1,500,000 1,750,000 2,000,000 2019 2020 2021 2022 2023 Page 25 of 553 Area 4 Sales Tax Broadway and Belleview (Between Fox and Sherman and south of Belleview and to the southern City Limits) 614,897 570,783 588,830 711,479 874,442 0 125,000 250,000 375,000 500,000 625,000 750,000 875,000 1,000,000 2019 2020 2021 2022 2023 Page 26 of 553 Area 5 Sales Tax Federal and Belleview west of Santa Fe Drive 889,142 1,095,529 788,758 970,671 782,282 0 200,000 400,000 600,000 800,000 1,000,000 1,200,000 2019 2020 2021 2022 2023 Page 27 of 553 Area 6 Sales Tax All other City locations 1,984,357 1,873,806 1,974,728 2,463,770 2,851,471 0 500,000 1,000,000 1,500,000 2,000,000 2,500,000 3,000,000 2019 2020 2021 2022 2023 Page 28 of 553 Area 7 Sales Tax Outside City limits 5,675,231 5,788,725 6,230,813 7,294,266 7,779,133 0 1,000,000 2,000,000 3,000,000 4,000,000 5,000,000 6,000,000 7,000,000 8,000,000 2019 2020 2021 2022 2023 Page 29 of 553 Area 8 Sales Tax Public Utilities 780,057 685,469 793,006 881,662 1,139,319 0 150,000 300,000 450,000 600,000 750,000 900,000 1,050,000 1,200,000 2019 2020 2021 2022 2023 Page 30 of 553 Area 13 Sales Tax Hampden Avenue (US 285) and University Boulevard 221,617 199,265 200,441 170,851 418,544 0 100,000 200,000 300,000 400,000 500,000 2019 2020 2021 2022 2023 Page 31 of 553 Area 14 Sales Tax Online Sales 73,647 56,462 79,534 912,786 1,240,401 0 250,000 500,000 750,000 1,000,000 1,250,000 2019 2020 2021 2022 2023 Page 32 of 553 Regular Use Tax 1,742,873 1,411,335 1,128,967 1,074,279 1,048,742 0 250,000 500,000 750,000 1,000,000 1,250,000 1,500,000 1,750,000 2019 2020 2021 2022 2023 Page 33 of 553 STUDY SESSION TO: Mayor and Council FROM: Tamara Niles DEPARTMENT: City Attorney's Office DATE: August 7, 2023 SUBJECT: Discussion of proposed Council policies, public comment amendments DESCRIPTION: Staff annually reviews the Council policies manual and identifies potential revisions for Council discussion and consideration. This agenda item provides that annual review for Council consideration. RECOMMENDATION: Consider proposed revisions to council policies SUMMARY: City Council annually reviews its council policies, and considers amendments. This year's proposed amendments are: Council bill publications Addressing City Council Council Member mailings Electronic meetings for boards Grant applications Please see attached powerpoint for details. COUNCIL ACTION REQUESTED: Provide direction to staff, to bring this item to City Council for action FINANCIAL IMPLICATIONS: None anticipated OUTREACH/COMMUNICATIONS: The City Attorney's office consulted with staff and council members regarding proposed revisions ATTACHMENTS: Powerpoint Proposed redlines to policies Page 34 of 553 Council Policy Updates Presented By Tamara Niles, City Attorney Page 35 of 553 Background •City Council has policy manual to guide members and staff on various matters not delineated in Charter or Municipal Code •City Council requested City staff propose various amendments, and City staff independently identified proposed amendments •Council Policies are adopted by Motion approved by a Council majority present Page 36 of 553 Publication of Council Bills •Clarified to mirror ordinance language, that staff—in addition to publishing on the City website—may publish by title in official newspaper •Removes requirement of newspaper publication •Per Council discussion and ordinance authority approximately 6 months ago, the City stopped publishing by title in the newspaper •City has received no contact or comments in opposition to this money-saving measure Page 37 of 553 Addressing City Council •Clarifies no one may speak unless and until recognized by the Chair •Omits provisions that could be construed as an attempt to regulate content of public comment •Due to security concerns with computer virus risk in inserting unvetted flash drives into City computers, notes public comment presenters only have access to City microphone and supporting materials must be in hard copy •Formalizes current process that questions raised may be addressed by designated Councilperson •Formalizes authority that those interrupting a meeting will receive a warning, and then may be removed Page 38 of 553 Municipal Code re Addressing Council •EMC 1-5-2-9(C) Manner of Addressing, Time Limit.Each person addressing the Council shall give his name and address or cross streets, or if not a resident of the City then the name of the City where they reside for the record, and shall limit his address to a reasonable time. The length of such remarks may be specifically limited by the presiding officer. All remarks shall be addressed to the Council as a body and not to any member thereof. No person other than the Council and the person having the floor, shall be permitted to enter into any discussion, either directly or through a member of the Council, without the permission of the presiding officer. No question shall be asked a Councilman except through the presiding officer. •Recommend slight revision via ordinance to remove regulation of public comment content, as we don’t regulate content Page 39 of 553 Council Member mailings •Clarifies council members may request City staff assist in preparation and mailing of responses to constituent communications, from the City Council postage and printing budget line items (rather than Council Member budgeted discretionary funds)Page 40 of 553 Board electronic meetings •Applies City Council electronic meeting policy to City boards, commissions, committees •A majority and the chair must attend in person; electronic participation by appointed board members is allowed on an infrequent basis •Citizens may participate electronically •In practice, to reduce the staff required for a hybrid meeting, this could be accomplished by starting a Zoom or Teams meeting on a laptop in the meeting room or through a City conference room Page 41 of 553 Grant applications •Creates a proposed grant applications policy: City staff has a long and successful history of applying for, and obtaining, grant awards to fund City operations and special projects. Applying for a grant, and then refusing to accept a grant award however, may impair the City’s ability to obtain similar grant awards in the future. Therefore, City Council considers and evaluates the following grant applications prior to submission: an application that binds the City to take future action/spend its own funds if the grant is awarded; grants in excess of $100,000; grants likely to be contentious or controversial within the community or among City Council members; if the failure to accept a grant award would likely negatively affect the success of a future grant application; grants that require City Council approval prior to application; or any other application requested for prior review and approval by City staff. Page 42 of 553 Proposed revisions or additions? Questions?Page 43 of 553     City of Englewood       City Council Policies  2022‐ 22023    CITY OF ENGLEWOOD | 1000 Englewood Pkwy, Englewood, CO 80110  Approved 5‐16‐2022INSERT DATE  Page 44 of 553   City of Englewood/Council Policy and Procedures Page 1 | 25   TABLE OF CONTENTS Page # I. Establishment of City Council Policies 4 Establishment 4 Amendment 4 Suspension of Rules 4 II. Officers and Employees 4 Presiding Officer 4 Mayor 4 Mayor Pro Tem 5 Temporary Chairperson 5 Officers and Employees to Attend City Council Meetings 5 City Manager 5 City Attorney 5 City Clerk 5 Department Directors/Employees 5 III. Meetings 6 Order of Business 6 Meetings – Open to the public 6 Distribution of Agenda and Agenda Packet 7 Minutes of the Meeting 7 Roll Call 7 Quorum 7 Summary of Minutes 7 Consent Agenda 8 Ordinances, Resolutions, Motions 8 Preliminary Matters 8 Ordinances 8 Emergency Ordinances 9 Resolutions 9 Motions 9 Addressing City Council 9 Verbal Communications 9 Scheduled Public Comment 10 Unscheduled Public Comment 10 Written Communication 10 Off-agenda Topics 10 Manner of Addressing Council/Time Limit 10 Public Hearing 11 Voting 11 IV. Policy Regarding Rules of Decorum 11 General 11 Seating Arrangement 11 Personal Privilege 12 Excusal during Meeting 12 Obtaining the Floor/Recognition by Chairperson 12 Page 45 of 553   City of Englewood/Council Policy and Procedures Page 2 | 25   Interruptions 12 Dissents and Protests 12 Study Session Policy 12 Provide Material in Advance 12 City Council and Citizen Requests 13 City Council Communications 13 Direction by Consensus 13 Garrett Rule 13 Woodward Rule 13 Public Meeting Policy 13 Agenda Materials 13 Burns Rule 13 Consent Agenda Protocols 13 Debate Decorum 13 Be Gracious and Respectful at all Times 13 Remain Silent 13 Interpersonal Behavior 14 Be Attentive 14 Take Time to Negotiate 14 Personality Conflicts 14 Use of Electronic Devices 14 V. Discretionary Funds 14 Allocation 14 Limitation on out-of-state travel 14 Publications/Printed Materials 14 Membership Dues 14 Meals 14 Computer Supplies/Technology 14 City Issued Credit Cards and Receipts 15 Reimbursements 15 Fair Campaign Practices Act 15 Charitable Contributions 15 Constituency Communication 15 Blackout Period 16 Postage Costs– Mass Mailings 16 Holiday Greetings prohibited 16 Pre-stamped envelopes 16 VI. Travel 16 Approval 16 Documentation 16 Fiscal Responsibility 16 Reconciliation of Prior Travel 16 Monitoring Policy 16 Publication of Expenditures 16 Out-of-State Travel 16 Expense Repayment 16 Page 46 of 553   City of Englewood/Council Policy and Procedures Page 3 | 25   VII. Communications Policy 17 Private E-mail Service 17 Official Custodian 17 CORA Statement 17 E-mail Communications 17 Retention Policies Applicable to E-mail Communications 18 E-mail Management Policy 18 VIII. City Council Vacancies 18 Resignation of a City Council Seat 18 Vacancies 18 Vacancy created by Mayor 19 Date of mandatory vacation of office 19 Procedure for selecting a successor 19 Term of Successor 19 Multiple Vacancies 19 IX. Electronic Participation 19 Purpose 19 Statement of Policy 20 Procedures 20 Quorum 20 Chairperson 20 Executive Session 20 X. Personnel 21 Annual Evaluation of City Officers 21 Annual Wage Adjustment 21 Timeline/Procedure 21 Meeting with City Officer 21 Municipal Court Judge/Municipal Court Budgetary Issues 21 XI. Agenda Setting 21 Mayor/City Manager meeting 21 City Manager: Authority to set agenda items 21 City Council Members: Authority to set agenda items 22 Proclamations 22 XII. Admonition and Censure of Council Members 23 Policy of Legal Compliance 23 Authorized Actions of City Council 23 Public Censure 24   Page 47 of 553   City of Englewood/Council Policy and Procedures Page 4 | 25   I. ESTABLISHMENT OF CITY COUNCIL POLICY AND PROCEDURE A. Establishment. The City Council shall adopt a Policy Manual. Adoption of Council policy shall be by Motion in public session and shall thereafter be included in a Council Policy Manual. B. Amendment. These rules may be amended or new rules adopted by majority vote of all members of the City Council. It is preferred that any such amendment(s) shall be submitted in writing at the preceding regular meeting and shall be placed on the agenda of the City Council. Any change to Council Policy shall be accomplished in the same fashion as a new policy. C. Suspension of Rules. Any provision of these rules not governed by the City Charter or City Code may be temporarily suspended, amended, or changed at any meeting of the City Council by a majority vote of all members of the City Council. The vote on any such suspension shall be taken by ayes and nays and entered in the record. Resolution No. 48, Series of 1990 II. OFFICERS AND EMPLOYEES A. The Presiding Officer. 1. Mayor. a. Charter § 24. After each general municipal election, the City Council shall elect from their own number a Mayor who will be the presiding officer entitled to vote. The Mayor shall have no veto power and shall serve at the will of the City Council. The Mayor shall be recognized as head of the City Government for all ceremonial purposes and shall execute and authenticate legal instruments requiring their signature as such official. b. Term. A Mayor shall serve for two years unless removed by action of a majority of the City Council. c. Election Procedure. The presiding officer of the City Council shall be the Mayor who shall be elected by majority vote of the members of the City Council. Generally, such election shall take place at the second meeting in November after each general municipal election, or following an action to remove the Mayor, or after a Mayor should resign from such position, or as needed. d. Duties and Authority. 1) Rules of Procedure and Decorum. The presiding officer shall preserve strict order and decorum at all regular and special meetings of the City Council. The presiding officer shall conduct the meetings in conformance with the adopted Rules of Procedure. 2) Duties. The Mayor shall call every meeting of the City Council to order. The Mayor shall, in conformance with the adopted Rules of Procedure, state every question coming before the City Council, announce the decision of the City Council on all subjects, and decide all questions of order, subject to the adopted Rules of Procedure. 3) Appointments by the Mayor. Except when otherwise provided by State law, nominations to boards/commissions/committees shall be by general consensus of the body. An action to approve and accept such nomination by regular motionresolution shall be placed on the agenda for the next regular meeting and approved by majority vote of the body present. The effective date of such Page 48 of 553   City of Englewood/Council Policy and Procedures Page 5 | 25   appointment shall be as provided by law, or as determined by action of the City Council. 4) Voting. The Mayor shall vote on all questions, their name being called last in roll- call votes. 5) Communications. The Mayor shall supply copies of all mailings/communications sent on behalf of the City or City Council to the City Council for informational purposes and comment prior to mailing or publicizing such mailings/communications. The City Manager or Mayor or City Council may designate staff to compose or prepare letters sent on behalf of the City over the mayor's signature. 2. Mayor Pro Tem. a. Election. The Mayor Pro Tem shall be elected by the members of the City Council at the second meeting in November after each general municipal election, or as needed. b. Authority. The Mayor Pro Tem shall serve as Mayor during the absence or disability of the Mayor and, in case of a vacancy in the office of the Mayor, pending a selection of a new Mayor. c. Duties. While serving in the capacity of Mayor, the Mayor Pro Tem shall have all powers of the Mayor, including signing all ordinances and contracts approved at any meeting over which the Mayor Pro Tem did preside. 3. Temporary Chairperson. In the absence of the Mayor and Mayor Pro Tem, the City Clerk or Deputy City Clerk shall call the City Council to order, whereupon a temporary chairperson shall be elected by the members of the City Council. Such temporary chairperson shall serve as presiding officer of the City Council until the arrival of the Mayor or the Mayor Pro Tem, at which time the temporary chairperson shall relinquish the chair upon the conclusion of the business immediately before the City Council. When necessary, the temporary chairperson shall serve until the election of a new Mayor and Mayor Pro Tem. B. Officers and Employees to Attend City Council Meetings. 1. City Manager. The City Manager, or the Manager’s designated representative, shall attend all meetings of the City Council posted in accordance with the Colorado Open Meetings Law, unless excused by the City Council. The Manager shall carry out all duties as set forth by Charter, and within the established job description. The Manager may make recommendations to the City Council upon any matter requiring action of the City Council, and may take part in discussions on all matters concerning the welfare of the City. 2. City Attorney. The City Attorney, or the Attorney’s designated representative, shall attend all meetings of the City Council posted in accordance with the Colorado Open Meetings Law, except the City Attorney may be excused by the City Council from study sessions where no official business of the City is anticipated to occur, including meetings with elected State or Federal representatives, interviews for volunteer positions, and similar meetings. The City Attorney is the legal representative of the City, and advises the City Council and City Officials in matters related to their official duties and powers. 3. City Clerk. The City Clerk is the clerk of the City Council. The City Clerk, or the Clerk’s designee, shall attend all meetings of the City Council, unless excused by the City Council. The City Clerk shall be responsible for providing agenda packets to members of the City Council, provide draft minutes to the members of the City Council the Thursday before such minutes are to be approved, assisting the Mayor with monitoring parliamentary matters, taking and announcing the vote upon all actions of the City Council, keeping the minutes of the meeting, and such other and further duties in the meeting as may be ordered by the Mayor, City Manager or City Council. 4. Department Directors/Employees. Department directors, city officers, or any employee of the City, when requested by the City Manager, shall attend any regular or special meeting, or study session, Page 49 of 553   City of Englewood/Council Policy and Procedures Page 6 | 25   and confer with the City Council on matters relating to the business of the City. In conformance with Charter §32, officers and employees reporting to the City Manager shall not interact with the presiding officer, unless the presiding officer or the City Manager specifically authorizes direct interaction. III. MEETINGS A. Order of Business. The agenda of the City Council shall be as follows except where otherwise decided by a majority vote of City Council members present at said meeting: 1. Call to order. 2. Pledge of Allegiance. 3. Roll Call. 4. Consideration of minutes of previous session. 5. Recognition of Scheduled Public Comment. 6. Recognition of Unscheduled-Public Comment 7. Communications Proclamations and Appointments. 8. Consent Agenda items. 9. Public Hearing items. 10. Ordinances, Resolutions and Motions. 11. General Discussion: (the order of the following at discretion of Mayor) a. Mayor’s Choice. b. Council Member's Choice. 12. City Manager's report. 13. City Attorney's report (if requested by City Attorney). 14. Adjournment B. Meetings - open to public. All meetings of a quorum or three or more members of any local public body, whichever is fewer, at which any public business is discussed, or at which any formal action may be taken are declared to be public meetings open to the public. 1. "Meeting" means any kind of gathering, convened to discuss public business, in person, by telephone, electronically, or by other means of communication. See C.R.S. 24-6-402. 2. "Local public body" means any board, committee, commission, authority, or other advisory, policy- making, rule-making, or formally constituted body of any political subdivision of the state and any public or private entity to which a political subdivision, or an official thereof, has delegated a governmental decision-making function but does not include persons on the administrative staff of the local public body. 3. Regular Meeting. Regular meetings of the City Council shall be held in the City Hall on the first and third Mondays of each month at the time designed by City Council, or at such other time and day as the City Council may, from time to time, designate; provided, however, that when the day fixed for any regular meeting falls upon a day designated by the City Council or law as a local, legal, or national holiday, such meeting shall be held at the same hour on the next succeeding day not a holiday. 4. Special meetings. Special meetings of the City Council may be called in the manner and at the time provided for by Bob’s Rules of Order, the rules of procedure of the City Council. a. Authority to Convene. The Mayor shall call special meetings of the City Council whenever in the Mayor’s opinion the public business may require it, or at the express written request of any three (3) members of the City Council. b. Notice. Whenever a special meeting shall be called, a summons or a notice in writing signed by the Mayor or City Manager shall be served upon each member of the City Page 50 of 553   City of Englewood/Council Policy and Procedures Page 7 | 25   Council, either in person, or by both telephone and e-mail, or by notice left at their place of residence, stating the date and hour of the meeting and the purpose for which such meeting is called, and no business shall be transacted except such as is stated in the notice. Members of the City Council may notify the City Clerk of their preferred method of notice. Notice of a special City Council meeting may be announced by the Mayor at any regular City Council meeting and when so announced, a written notice shall not be required. Notice of a special City Council meeting, whether written or oral, shall be served upon each Council Member at least twenty-four (24) hours before the special meeting is to be held; except that if, after diligent effort is made to give notice of any such meeting to all members of the City Council, notice of the same cannot be given due to an inability to locate any member, a majority of the City Council may waive notice of a special City Council meeting in writing or by affirmative vote at the special meeting and such waiver shall be specifically noted in the minutes of the meeting. Notice may be waived by the entire membership of the City Council in any case. 5. Executive Session. The City Council may call an executive session in conformance with C.R.S. 24-6-402. C. Distribution of Agenda and Agenda Packets. On the Thursday preceding a regular City Council meeting, or at such other day as the City Manager shall determine, the City Manager will make available to each Council Member an agenda showing the order of business and indicating the public hearings to be anticipated as a result of previous action of the City Council, planning or other commissions. Also listed will be ordinances for first or second reading, petitions previously presented to the Clerk’s office and a list of the reports of special committees, the City Manager or City Attorney. The City Clerk shall make agenda packets available to members of the City Council in electronic format by 5:00 p.m. on the Thursday prior to any scheduled meeting of the City Council. Upon request by any Council Member, printed materials will be made available at the same time, or as soon thereafter as practicable. 1. Rita Russell Rule – All Council Members shall receive the same information at the same time in the Council Packet. D. Minutes of the Meeting. Minutes of the meeting shall be action minutes. In conformance with the adopted Rules of Procedure, the Clerk may be directed by the Mayor to enter a synopsis in the minutes of the discussion on any question coming regularly before the City Council. A City Council Member may request, through the presiding officer, the privilege of having an abstract of their statement on any subject under consideration by the City Council entered in the minutes. E. Roll Call. Before proceeding with the business of the City Council, the City Clerk, or their deputy, shall call the roll of the members, and the names of those present shall be entered in the minutes. The time at which any member joins or leaves a meeting after it has convened shall also be noted within the minutes. F. Quorum. Pursuant to City Charter, five (5) members of the City Council shall constitute a quorum at any regular or special meeting of the City Council. In the absence of a quorum, the presiding officer may, or at the instance of any three (3) members present, shall, compel the attendance of absent members. G. Summary of Minutes. At each meeting it shall be asked by the presiding officer if there are objections or are corrections to be made to the summary of minutes of the preceding meeting as published. If there are no objections, the summary of minutes shall be approved. Page 51 of 553   City of Englewood/Council Policy and Procedures Page 8 | 25   H. Consent Agenda. The consent agenda is a tool used to streamline City Council meeting procedures by collecting and grouping routine, noncontroversial topics into a single agenda item that can be discussed and passed with a single motion and vote. I. Ordinances, Resolution, and Motions. The City Council shall act only by ordinance, resolution or motion. All legislative enactments must be in the form of ordinances, all other procedures may be in the form of resolutions or motions. All ordinances and resolutions shall be confined to one subject, except in case of repealing ordinances, and the ordinances making appropriations shall be confined to the subject of appropriations. 1. Preliminary Matters. a. Sponsorship. All ordinances and resolutions shall be introduced to the City Council in printed or written form, either electronically or hard copy. b. Attorney Review. All proposed ordinances shall be reviewed by the City Attorney’s Office and bear the certification of the City Attorney that such document is in correct form. c. City Manager. The City Manager shall attach to each proposed ordinance a brief digest of the provision thereof and where it is proposed to amend an existing ordinance (if applicable). Said digest shall indicate the change sought to be made and shall also show the name of the department or party at whose request the proposed ordinance was prepared. 2. Ordinances. Ordinances are used primarily for legislative actions. In addition, by City Charter, certain agreements and certain budgetary matters must be approved by ordinance. a. First reading. At first reading a proposed ordinance is referred to as a “Council Bill.” At second and subsequent readings it is referred to as a “bill for an ordinance.” b. Introduction. A Council Bill may be introduced at any regular meeting, or by petition of the people as provided by the City Charter. c. Sponsor. If a Council Member has requested a Council Bill for an ordinance that person’s name should appear on the ordinance as the sponsor of the Council Bill. d. Action. At the first reading, the Council Bill will have a previously assigned Council Bill number on the document. After a Council Bill is presented to the City Council, it becomes an official document which must be acted upon through approval, failure to approve, tabling, etc. e. Amendment. After introduction and prior to voting upon approval of the Council Bill, the Council Bill may be amended by majority vote of the City Council. A motion must be made to amend the ordinance with the specifics of the amendment identified and stated in the motion. f. Voting. Every ordinance shall require an affirmative vote of the majority of all members of the City Council for approval, even when all members of the City Council are not present at such meeting. g. Motion Form. Ordinances are always dealt with in the positive, therefore the action is always a “motion to approve." The motion is never made to disapprove. h. Publication. Upon approval, the Council Bill, including all amendments, shall be published in full on the City’s official website, and staff may publish by title at other locations, including only in the City’s legal newspaper. i. Public Hearing. The City Council may set a day and hour at which the City Council, or a committee of the City Council, shall hold an administrative public hearing thereon. 1) Kells Rule - Second reading of an ordinance shall not be heard on the same evening as a public hearing. Page 52 of 553   City of Englewood/Council Policy and Procedures Page 9 | 25   j. Bill for Ordinance. A bill for an ordinance shall be presented for approval at one additional meeting of the City Council, which meeting must be held no earlier than seven days after publication of the Council Bill. k. Second Consideration. Publication dates and notice requirements may dictate that a bill for an ordinance not come back at the next meeting of City Council. l. Second Reading Procedure. Generally, the bill for an ordinance is presented for second reading under the Consent Agenda. All items previously approved may be approved in a batch, or they may be removed from the Consent Agenda. Ordinances approved under the Consent Agenda are automatically assigned a number by the City Attorney’s Office and/or City Clerk and are not individually read by title. m. Consent Agenda Removal. Removal from the consent agenda does not require a motion or vote. Those items removed are considered, individually, after all other consent agenda items have been approved. The procedure for acting upon items removed from the consent agenda should be to deal with the items in the same order as they appear on the agenda, each to be debated and voted upon separately. n. Voting After Consent Agenda Removal. Any bill for an ordinance removed from the consent agenda is procedurally acted upon in the same manner as the initial approval procedure. o. Amendment on Second Reading. The City Council may amend a bill for an ordinance. Approving an amended bill for an ordinance requires the amended bill be treated the same as a Council Bill, requiring re-publication and an additional consideration by the City Council as a bill for an ordinance. p. Approval Twice. Each ordinance of the City must be presented to the City Council and approved in the same form twice, regardless of the number of times a bill for ordinance is amended. q. Second Publication. After the second action to approve, an ordinance shall again be published, by reference or in full at the discretion of the City Council, and such publication shall be made by publishing on the City’s official website or by publication in the newspaper designated by the City Council as the City’s official newspaper. r. Summary Publication. Any publication by reference shall contain a summary of the subject matter of the ordinance and a notice that copies of the ordinance are available at the office of the City Clerk. s. Referendum. The referendum period shall apply to all ordinances passed by the City Council, except ordinances making the tax levy, the annual appropriation ordinance, or the ordering of improvements initiated by petition and to be paid for in whole or part by special assessments. t. Effective Date. Except in cases of a filed referendum, all ordinances shall take effect thirty days after publication following final passage. 3. Emergency Ordinances. Emergency ordinances necessary for the immediate preservation of public property, health, peace or safety, must be approved in accordance with City Charter § 41. 4. Resolutions. Resolutions are used for formal approval of non-legislative measures. A resolution is passed upon approval by a majority of the quorum present at the meeting. 5. Motions. Motions are the most common form of official action by the City Council. Motions shall be carried out in conformance with Bob’s Rules of Order as adopted by the City Council and in conformance with Charter § 27. Unless otherwise dictated by applicable law or procedure, a motion is passed upon approval by a majority of the quorum present at the meeting. J. Addressing the City Council. 1. Verbal Communications. Formal verbal communications to the City Council as a body are allowed only at those times provided in the Agenda of a regular meeting, including public comment and Page 53 of 553   City of Englewood/Council Policy and Procedures Page 10 | 25   public hearings. Interested parties may address the City Council by verbal communications on any matter concerning the City’s business. Speakers should not expect an immediate response. Issues raised may be referred to City staff for follow-up and reported back to the City Council. a. Scheduled Public Comment. Any private individual who desires to appear before the City Council on any matter other than the subject of a public hearing on the same agenda may be scheduled to appear by advising the City Manager (or their designee) of such request not later than 5:00 p.m. the Wednesday preceding the next regular meeting. Future meetings may not be scheduled in advance. Scheduled public speakers shall be given up to five minutes to present to the City Council. b. Unscheduled Public Comment. Any person who did not make a request to address the City Council as a scheduled speaker the week prior to such regular meeting who desires to address the City Council on any matter other than the subject of a public hearing on the same agenda as an unscheduled speaker shall first secure the permission of the presiding officer to do so. Unscheduled speakers shall be limited to three minutes. Note: The time available for unscheduled public comment may be limited to assure the matters included in the agenda, upon which the public has been notified action is to be considered, are completed. If unscheduled public comment time is limited, the time available for unscheduled public comment shall be allotted in accordance with the order in which individuals signed the list requesting to be an unscheduled speaker. c. No speaker may yield their allotted time to another speaker, or speak more than once during a meeting’s public comment. 2. Written Communications. Interested parties may address the City Council by written communication upon matters for consideration by sending such written communication to the City Clerk (or their designee) for inclusion in the agenda packet not later than 5:00 p.m. the Wednesday preceding the next regular meeting. 3. Off-agenda Topics. In conformance with Open Meetings Law, City Council members shall not respond to community comments upon topics not noted in the agenda. During that portion of the agenda called “Council Member’s Choice” any member of the City Council may 1) request staff research such matter and provide such research to the City Council in the form of a “Council Request,” 2) make a motion to bring any unscheduled matter introduced during public comment to a future study session for study, or 3) make a motion to bring any unscheduled matter to a regular meeting for a defined action. Following approval of the motion by a majority vote, the matter shall be scheduled for a future meeting. 4. Manner of Addressing the City Council /Time Limit. a. No person may address City Council or otherwise interrupt a meeting unless and until recognized by the presiding officer. a.b. Each person addressing the City Council shall give their name. Each speaker shall also provide information identifying themselves as either a guest of the City, resident of the City, business owner, or non-resident landlord. This information may be provided through the speaker’s residential address, the major intersection nearest the speaker’s residential address, the name of the speaker’s business, the City Council district where the speaker resides, or the name of a city other than Englewood where the speaker resides. b. All remarks shall be addressed to the City Council as a body and not to any member thereof. Remarks intended for a single member of the body should be conveyed directly to that member through personal communication. c. If a member of the City Council asks clarifying questions of the speaker, no person other than the City Council member and the speaker shall be permitted to enter into the discussion, either directly or through invitation of a member of the City Council, without the permission of the presiding officer. c.d. Presenters may provide City Councilmembers with hardcopies of presentation materials, handouts, or other written materials by providing such materials to the City Clerk in Page 54 of 553   City of Englewood/Council Policy and Procedures Page 11 | 25   advance of the meeting or just before they address City Council. The City of Englewood will not provide presenters with access to audio-visual equipment except for access to a microphone. d.e. No question shall be asked of a City Council Member as an individual except through the presiding officer. While City Council has no obligation to respond to questions asked during public comment, a Council Member may respond by making a request to staff during Council Member’s choice as described above, as the designated responding Council Member after the close of all public comment, or if recognized and authorized by the presiding officer. e.f. While the First Amendment rights of all speakers are recognized and respected, and the City does not regulate any content of public comment, all speakers shall respect the public nature of the forum, and the purpose of the forum to conduct the business of the City, by conveying their message to the City Council in language that avoids profanity and expletives. f.g. No speaker shall use fighting words or commit any acts that violate the law, such as making or conveying threats of violence or harm, committing disorderly conduct, or attempting to influence a public servant in violation of CRS 18-8-306. g.h. In order to ensure that all City Council meetings are conducted democratically and effectively, and so that City Council and all members of the public have a full, fair, and equal opportunity to be heard, no person shall boo, clap, yell, speak off-mic, or speak in response to or during a speaker’s comments without being recognized by the presiding officer. h.i. The presiding officer shall advise any speaker of a violation of these rules; any speaker interrupting a meeting may be given a verbal warning where practicable, and if repeated, may be removed from the meeting without further warning. K. Public Hearings. 1. Speakers. All persons desiring to be heard on a particular issue at a public hearing before the City Council shall sign up in advance of the public hearing. They shall provide their names, addresses, and indicate whether they are speaking for or against an issue, or are neutral. Each person on the list will be called to the podium (or recognized virtually), and before speaking will attest/swear to the truthfulness of the testimony presented. Speakers at public hearings are limited to the presentation of testimony, or other evidence, upon the pending matter, and may not question others in the room, call others to testify, or cede their time to other speakers. 2. Time Limits. The standard time limit allotted to each speaker shall be three (3) minutes, but the presiding officer, with approval of a majority of the City Council, may modify the length of time to be allotted to all speakers heard upon any subject. 3. Rebuttal. Following the presentations of all speakers, the petitioner, if any, will be given time for rebuttal. Following the rebuttal of the petitioner, the presiding officer will declare the hearing closed. After the public hearing is closed the matter is remanded to the City Council for consideration. 4. City Council Requests. If any City Council Member wishes more information from any individual who spoke at the hearing, they may direct questions only through the presiding officer, to the individual and the response solicited from the speaker by the presiding officer will be limited to the answer of the question as stated. 5. Quasi-Judicial Hearings. Quasi-judicial hearings shall be conducted in strict conformance with the standards set forth within the Englewood Municipal Code provisions authorizing such quasi- judicial hearing, and E.M.C. 1-10-2-7. All other public hearings are administrative in nature and shall be conducted in conformance with Title 1, Chapter 10 of the Englewood Municipal Code. After opening a quasi-judicial public hearing, the presiding officer shall state into the record, Page 55 of 553   City of Englewood/Council Policy and Procedures Page 12 | 25   “Council members use electronic devices to access the materials relevant to the public hearing before us. Except for the sole purpose of obtaining attorney advice to ensure legal compliance, is a violation of this Council’s policy for these devices to be used for texting, e-mailing, internet research, or other communications during quasi-judicial public hearings.” L. Voting. 1. Calling the Vote. After conclusion of discussion upon a matter, or after a matter has been “called”, the presiding officer shall call for a vote. Votes shall be indicated verbally or through operation of voting lights or other electronic system that individually records the vote of each Council Member. Votes shall be “Aye” or “Nay”. The City Clerk, or designee, shall read into the permanent record the "Aye” and "Nay” votes, and shall indicate whether a measure has passed or failed. 2. Abstention. Abstentions shall be in conformance with Bob’s Rules of Order, as may be modified by ordinance from time to time. IV. RULES OF DECORUM A. General. While the City Council is in session, the members must preserve order and decorum. A member shall neither, by conversation or otherwise, delay nor interrupt the proceedings, nor the peace of the City Council, nor disturb any member while speaking, nor refuse to obey the orders of the City Council or its presiding officer. 1. Seating Arrangement. City Council members shall occupy their respective assigned seats in the City Council Chamber, or any forum at which the City Council shall convene as a body. Assignments will be made by the presiding officer. Any two or more members may exchange seats by joining in a written notice to the presiding officer to that effect. Such notice should be received by the presiding officer a minimum of twenty-four hours prior to the scheduled meeting. The seat exchange shall remain in effect until the presiding officer receives appropriate written notice of a further seat exchange. In recognition of the need to make internet viewing of City meetings more standardized for the public, the presiding officer may request consensus approval of a request for seat exchange if more than one seat exchange is requested by any one member during a calendar year. 2. Personal Privilege. The right of a member to address the City Council on a question of personal privilege shall be limited to cases in which their integrity, character, or motives are assailed, questioned, or impugned. 3. Excusal During Meeting. No member may leave the City Council Chamber while in regular session without permission from the presiding officer. If the presiding officer leaves the City Council Chamber during a regular session the Mayor Pro Tem shall assume the role of presiding officer until the Mayor’s return. 4. Obtaining the Floor/Recognition by Chairperson. Every member desiring to speak shall address the chairperson and, upon recognition by the presiding officer, shall confine themselves to the question under debate. The member shall hold the floor without interruption until the member cedes the floor back to the presiding officer. The member shall cede the floor to the presiding officer immediately upon direction of the presiding officer in conformance with Bob’s Rules of Order. A member who fails to abide by the directive of the presiding officer shall be deemed to have ceded the floor, and the presiding officer may recognize another speaker. 5. Interruptions. A member once recognized shall not be interrupted when speaking except in conformance with Bob’s Rules of Order. If a member, while speaking, is called to order for a violation of these rules, they shall cease speaking until the question of order is determined. The member may resume speaking upon the direction of the presiding officer. Other than to make a privileged motion, no member of the City Council shall interrupt another member of the City Page 56 of 553   City of Englewood/Council Policy and Procedures Page 13 | 25   Council while such member holds the floor. If a member of the City Council is interrupted inappropriately while such member holds the floor, the member shall request that the presiding officer enforce the rules of decorum. 6. Dissents and Protests. Any member shall have the right to express dissent from, or protest against, any ordinance or resolution of the City Council and may have the reason therefore entered in the minutes. Such dissent or protest must be in respectful language and presented to the City Council not later than the next regular meeting following the date of passage of the ordinance or resolution in question. B. Study Session Policy. 1. Provide Material in Advance. Material on new information must be received before study session to allow discussion in an educated fashion. No information presented without backup material can be presented. No decision will be made until all members have had an opportunity to review the information. 2. Council and Citizen Requests. Requests for information from City Council members or written response to a citizen’s concern must go through the City Manager's Office. Requests for information made by a City Council member to staff should result in information provided to all of members of the City Council. 3. Council Communications. During Council communications, City Council members may request a status update as to a matter previously acted upon by the City Council. City Council members also may request a matter be placed back upon a future agenda as a result of new information becoming available. To place such a matter on a future agenda, the City Council must assent by consensus to proceed. 4. Direction by Consensus. During a study session, consent by consensus may be used by the City Council to clarify direction to the City Manager or City Attorney, or to establish procedural matters, such as placing matters upon future agendas. Additionally, efforts to arrive at a consensus position for the purpose of developing subsequent legislative action shall be permitted. Agreeing by consensus to place a matter upon a future agenda, or guide the actions of City staff in crafting future legislation, does not bind any member of the body to vote in favor of such measure when it is brought before the body for formal action. A consensus agreement is merely a procedural step for allowing the body to formally consider a matter. 5. Garrett Rule- A matter is not to be considered at a study session and at the formal City Council meeting on the same evening. This is to allow the City Council time to consider all information presented at the study session and to contemplate that information. 6. Woodward Rule- To allow full consideration of matters coming from boards and commissions, matters will not be presented at a study session until the minutes have been approved and submitted to the City Council. C. Public Meeting Policy. 1. Agenda Materials. a. Burns Rule – Information shall not be handed out at the meeting but rather shall be distributed through the City Council Packet. b. Presentation of last-minute information should be avoided whenever possible. New information related to an emergency situation should be made available to the City Council but may be disregarded by the City Council upon a majority vote. c. The City Manager or the City Clerk shall provide all information associated with any issue upon the agenda to the City Council in an equal and timely fashion. 2. Consent Agenda Protocols. Members should notify the City Council through the City Manager (or their designee) prior to a public session when they plan to remove an item from the consent agenda. Page 57 of 553   City of Englewood/Council Policy and Procedures Page 14 | 25   Members should contact the City Manager (or their designee) prior to the meeting whenever possible regarding questions upon matters placed on a consent agenda on first reading. The City Manager will forward all notices of intent to pull a matter from the consent agenda, and responses to requests for information concerning consent agenda items, to all City Council members by 3:00 p.m. on the day of a meeting. 3. Debate Decorum. Debate occurs between and among City Council members, but should be limited to making a point or stating a position. Redundancy, grandstanding, and personal attacks will be addressed by the chairperson as being out of order or inappropriate. The City Council may appoint a “Sergeant at Arms” to provide a friendly reminder of exceeding a reasonable time limit. 4. Be Gracious and Respectful at all Times. It is the responsibility of each City Council member to display common courtesies at all times. Respect differences of opinions and perspectives. For example: avoid interruptions, avoid personalizing the issue, avoid grandstanding, avoid argumentative behavior including repetitive restatements of a position, and avoid filibustering. 5. Remain Silent. Do not speak without being recognized by the chairperson. 6. Interpersonal Behavior. Focus on the issue, not on the member presenting the issue. Treat each other and each person coming before the City Council with respect. 7. Be attentive. Listen and understand before judging and making a commitment. Give a speaker your entire attention. Shuffling papers, looking at phones, finding reasons to never make eye contact with the speaker telegraphs to the speaker and all members of the audience that you have already decided the matter and are disinterested in new information. 8. Take time to negotiate. As a seven-member board, things work best through consensus or compromise. Work together as a team on issues as they relate to what’s best for the City as a whole. 9. Personality Conflicts. Personal problems or concerns with individual City Council members should be discussed directly with that individual outside of an open meeting, and not aired in a public forum. 10. Use of Electronic Devices during Public Meetings. City Council members use electronic devices to access the materials relevant to the public meeting. It is a violation of the City Council’s policy for these devices to be used for texting, e-mailing, or other communications during public meetings, except communications with the City Attorney and/or the City Attorney’s designee regarding matters that arise during the meeting to ensure legal compliance. Communications received during open meetings may be subject to the Colorado Open Records Act. [Resolution No. 44, Series of 1991 V. CITY COUNCIL DISCRETIONARY FUNDS POLICY A. Allocation. Discretionary funds in the sum of $6001000.00 shall be allocated for each City Council Member per annum. Those funds not used in any calendar year shall revert to the general fund. B. Limitation on Out of State Travel. It is the intention of the City Council that discretionary funds be used in the metropolitan area surrounding the City of Englewood. Because the City funds one out-of- state conference per year for City Council members (see below), discretionary funds shall not be used for additional out-of-state expenses unless approved by the City Council. An application for use of discretionary funds for an out-of-state trip may be applied for after the fact, but if the City Council disapproves of the expenditure the City Council Member must return discretionary funds used during the trip. C. Publications. Discretionary funds may be used for the purchase of books, publications, newspapers, or materials directly related to the responsibilities of the City Council. Materials purchased with discretionary funds are not personal property, and shall be made available to other City Council Page 58 of 553   City of Englewood/Council Policy and Procedures Page 15 | 25   members on request. Materials (tapes, publications, etc.) obtained at a conference or purchased with discretionary funds shall be made available to all City Council members and City staff on request. D. Membership Dues. Individual memberships to an organization (service clubs, etc.) may be paid from discretionary funds, provided the City Council member states the City-related purpose for the membership. E. Meals. Discretionary funds may be used for meals that are directly related to the responsibilities of the City Council. Expenditures for alcoholic beverages shall only be as part of a meal as opposed to separate expenditure. Where it is necessary as a part of the establishment’s policy to have separate tickets for food and beverage purchases, compliance shall be satisfied so long as noted on the receipts by the City Council Member. F. Computer Supplies/Technology. Discretionary funds may be used to purchase a tablet computer, laptop computer, printer ink, or other technical equipment to be used for City business. The computer equipment provided to each City Council Member for use at City Council meetings, and regular member business, shall be a standard expense of the City and not associated with City discretionary funds. Upon leaving the City Council, members shall have the right to purchase the personal computer equipment they utilized as City Council Member. Other technology expenses, including cellular telephone reimbursement, are permitted. All cellular telephone numbers paid for with City funds shall be made available to the public. G. City Issued Credit Cards and Receipts. All expenditures made by City Council members should be by P-card. Receipts for expenditures shall be submitted to the City Manager’s Office within one week of incurring such expenditure. The City Manager’s Office will upload the receipts into the Purchasing Card system. Expenditures without a correlating receipt will not be paid. H. Reimbursements. Occasionally an expenditure may not be made through P-card. For example, cash purchase of parking at a parking meter, or purchase at places that do not accept the card. Requests for reimbursement require a receipt submitted within one week of the expenditure, and completion of an expenditure form. Such expenditure form shall be uploaded into the City’s online finance reporting system. I. Fair Campaign Practices Act. Discretionary funds shall not be used in a manner that would violate the Fair Campaign Practices Act or any other law. J. Charitable Contributions. Discretionary Funds shall not be used for individual charitable contributions as such contributions are made by the City Council as a body. K. Constituency Communications. A member may utilize discretionary funds to communicate with constituents, including but not limited to: mail, e-mail, faxes, newspaper inserts, posters, flyers, banners, signs, telephone conference calls, videoconferencing, automated telephone calls, audio and video messaging, advertisements, public service announcements and handouts, and “coffee” with a constituent(s). If using discretionary funds, these communications should seek to improve citizen outreach and engagement, by soliciting input, encouraging citizen participation, and generally providing accurate information regarding issues, events, legislation, and policies of the City of Englewood. Use of discretionary funds must comply with the Fair Campaign Practices Act, including its limitations on expenditure of public funds regarding ballot questions. City Councilmember mailings/communications in direct response to mail/communications from constituents and other stakeholders may to requested from the City Manager’s Office one week in Page 59 of 553   City of Englewood/Council Policy and Procedures Page 16 | 25   advance of when the response is expected, with postage and printing provided from the City Council’s postage and printing budget line items rather than discretionary funds. K.L. Blackout Period. No discretionary funds shall be used in association with constituency communications in the ninety (90) days prior to any election date upon which individuals are running for a seat upon the City Council. L.M. Postage Costs for Mass Mailings. City Council members may use their discretionary funds to pay the postage associated with a mass mailing. A mass mailing is an unsolicited mailing initiated by a member to their constituency totaling 25 or more pieces of substantially identical content, whether such mail pieces are deposited to USPS as single pieces or in bulk, or at the same time (single drop) or different times (cumulative) over the course of a single budget year. The term "mass mailing" and "mass communication" do not apply to mailings/communications in direct response to mail/communications from persons to whom the matter is transmitted, i.e., a solicited response. 1. Submission to City Manager. A copy of the document to be mass mailed must be submitted to the City Manager (or their designee) for inclusion in the City Council packet for informational purposes at least two weeks prior to the date of intended mailing. At such City Council meeting prior to the mailing, the City Council may by majority vote direct the City Manager to deny use of discretionary funds to pay the costs of the proposed mailing if such mailing is in violation of any law. Any City Council Member commenting on such mailing at a public meeting will do so in strict compliance with the Rules of Decorum provided in Section IV of this policy manual. 2. Mail Statement. Any mail distributed using discretionary funds will contain be clearly marked "Mass Mail Statement", and shall include the following statement: "This mailing was prepared, published, and mailed at taxpayer expense." The statement must appear on page one of a document or on the address side of the envelope or mailing panel/label; must be prominently displayed; and not be printed in smaller than a 7-point typeface. M.N. Holiday Greetings. Discretionary funds shall not be used to send any card expressing holiday greetings from a member, although, in an otherwise official mailing, a member may make an incidental holiday greeting. For example, in the salutation or signature in an official mailing, the member could say “happy holidays” or some other appropriate brief greeting. Holiday colors and illustrations and are not considered incidental. No birthday, anniversary, wedding, birth, retirement, or condolence messages may be sent by an individual member using discretionary funds. N.O. Pre-stamped Envelopes. Members are not permitted to send a stamped envelope paid for by discretionary funds to a constituent, including as part of a request to return anything from a constituent to such member. VI. TRAVEL POLICY A. Approval. Each City Council Member shall formally request approval of all City-related travel thirty (30) days prior to attendance. If a City Council Member fails to request approval by this deadline, the member may request late approval by the City Council; any travel not approved will be at the personal expense of the member. B. Documentation. The formal request shall include a summary explaining the nature of their participation, how it will benefit or affect the City, and anticipated costs. The member shall provide documentation and receipts to the City Manager reconciling expenditures within thirty (30) days after their return from an event. Page 60 of 553   City of Englewood/Council Policy and Procedures Page 17 | 25   C. Fiscal Responsibility. Members shall make a diligent effort to be fiscally prudent in their expenditures by purchasing lowest available air fare, securing economy hotel accommodations, and implementing other cost saving measures whenever possible. D. Reconciliation of Prior Travel. City Council Members will not be allowed to travel for the City until their previous travel expenses have been reconciled. E. Monitoring Policy. The City Council shall continually monitor travel expenditures throughout the year. F. Out of State Travel. A City Council Member may attend only one (1) out-of-state conference per year at the City’s expense, unless approved by a super-majority vote of five (5) City Council members. G. Repayment of Expenses to City. Any City Council Member who cannot travel after expenses have already been paid may be asked to repay all or a portion of these expenses. Repayment may be withheld from such member’s salary, if directed by a super-majority vote of the City Council. Resolution No. 48, Series of 2014 was amended to reflect changes in Council Travel Policy publications. VII. COMMUNICATIONS POLICY A. Private E-mail Service. Members of the City Council are strongly discouraged from using private e-mail services to conduct City business. Private e-mail services utilized to conduct the business of the City shall be subject to Colorado Open Records Act. The City will not make public on its website(s) the private e-mail address of any member of the City Council. B. Official Custodian. The City Clerk’s Office is the official custodian of records held by the City and may request copies of e-mails sent or received through private e-mail accounts in association with the business of the City. In accordance with C.R.S. 24-72-202(2), "official custodian" means and includes any officer or employee of . . . any local government-financed entity, who is responsible for the maintenance, care, and keeping of public records, regardless of whether the records are in their actual personal custody and control. C. CORA Statement. All City Council members shall include a statement at the bottom of all outgoing e-mail messages in the following form, unless otherwise required by CORA or applicable law: Under the Colorado Open Records Act (CORA) all e-mails to and from City Council are subject to public disclosure, with limited exceptions. To promote transparency, e-mails are available for review upon request. E- mails which contain “private” in the subject line of the e-mail will not be automatically available to the public, however, the City of Englewood can't guarantee that e-mail to or from Council marked “private” will remain private under CORA. D. E-mail Communications. 1. E-mail deliberation between three or more elected officials concerning public business and/or pending legislation are declared to be a public meeting under the Colorado Open Meetings Law and are prohibited. Page 61 of 553   City of Englewood/Council Policy and Procedures Page 18 | 25   a. Chain communications are prohibited, i.e. deliberative communication between an elected official and another member of the body, upon the same matter as was previously communicated upon in a deliberative manner with a different member of the City Council. b. City Council members shall not “reply all” to any communication received by such City Council member that was also sent to two or more other members of the City Council. c. City Council members shall not copy and paste a communication received from another City Council member regarding a matter of City business and distribute such communication to another member(s) of the City Council. 2. The following e-mail communications from or to an elected official or officials are permitted: a. Communication or deliberation from or to the City Manager, the City Attorney, or community members. b. Deliberation between fewer than three elected officials in which other elected officials are not copied and which are not forwarded to other elected officials. c. Communication between elected officials that does not include deliberation related to pending legislation or other public business. d. “Deliberation” means the discussion and/or exchange of viewpoints and opinions on a subject. It specifically does not include the distribution, but not discussion, of information. E. Retention Policies Applicable to E-mail Communications. 1. E-mail communications of elected officials may be considered public records under the Colorado Open Records Act. The City’s Records Retention Schedule applies to e-mail communications in the same manner as other records. 2. Certain types of correspondence are expressly not a public record, including that which is a “work product,” as well as correspondence that is “without a demonstrable connection to the exercise of functions required or authorized by law or administrative rule and does not involve the receipt or expenditure of public funds”. Examples include drafts and worksheets, desk notes, copies of materials circulated for informational “read-only” purposes, and other records with preliminary or short-term informational value. These e-mails should be deleted as soon as they are read and are no longer useful. 3. Correspondence of elected officials designated as a public record fall into one of two categories: a. Enduring Long-Term Value: Documentation or correspondence with enduring and long-term administrative, policy, legal, fiscal, historical or research value; records that relate to policy issues and actions or activities in which an important precedent is set; records of historic events relating to the municipality or the community; and other similar records and documentation. The retention period for these records is permanent. b. Routine Value: Operating documentation that is routine and contains no significant administrative, legal, fiscal, historical, information or statistical value. Includes routine communications sent and received, communications containing duplicates of information that is filed elsewhere, routine requests for information, transmittal documents, etc. The retention period for these records is two years. F. E-mail Management Policy. In order to ensure that the e-mails of elected officials are properly managed, the following e-mail management policy should be followed: Page 62 of 553   City of Englewood/Council Policy and Procedures Page 19 | 25   1. All e-mails sent to or from an elected officials’ e-mail account will be automatically archived. 2. Archived e-mails will be managed according to the City’s retention policy by the City Clerk. 3. Original e-mails in the elected officials’ e-mail accounts may be saved or deleted as the elected official finds most useful. VIII. COUNCIL VACANCIES A. Resignation of a City Council Seat. An individual may choose to resign a seat on the Englewood City Council. As the Englewood City Charter does not establish procedures for resignation of a City Council seat, resignations shall be addressed by the remaining members of the City Council and staff in accordance with this policy. B. Vacancies. Certain situations mandate vacating a City Council seat. City Charter § 23 prohibits members of the City Council from dual office holding. City Charter § 28 provides that an elective office shall become vacant whenever any officer becomes incapacitated, or if a City Council Member shall remove from or become a non-resident of the district from which elected during the term of their office. C. Vacancy created by Mayor. If the City Council Member serving as Mayor resigns from the City Council or creates a vacancy by reason of becoming a non-resident of the district from which elected, a vacancy in the City Council position is created and a separate vacancy is created in the Office of Mayor. The remaining City Council members shall elect a new Mayor at any time from the point that the vacancy occurs in conformance with the Englewood City Charter. The City Council may wait until the new City Council Member is installed before electing a new Mayor. If that should occur, then the Mayor Pro Tem will fulfill the functions of the Mayor until a new Mayor is elected. D. Date of mandatory vacation of office. A seat must be vacated at the same time as the cause for the vacancy occurs. For example, if a City Council Member is elected to another office, merely qualifying to take the second office does not constitute a vacation of the first office. Vacancy in the first office occurs only upon actual assumption of the duties of second office or resignation from the first office. E. Procedure for Selecting a Successor. 1. In case of a vacancy, the remaining City Council members shall choose, by majority vote and within thirty days after such vacancy occurs, a duly qualified person to fill such vacancy. 2. At the direction of a majority of the City Council, the City Manager shall advertise the vacancy and make available an application for City Council Member appointment. Such application shall be made available on-line, or may be requested at the Office of the City Clerk. Copies may be mailed to interested applicants if such applicant provides a stamped and self-addressed envelope to the City Clerk. 3. The City Council shall call a special meeting to interview all candidates no less than one week before the regular City Council meeting where the appointment is scheduled to occur. The interviews shall be open to the public but the public shall not participate in the interview process. The interviews shall be recorded, archived, and retained in the same manner as other City Council special meetings. There shall be no ver batim minutes taken of the interviews. 4. If the City Council does not fill the vacancy by appointment within thirty (30) days after the vacancy occurs as required by the City Charter, it shall order an election, subject to the municipal election code, as soon as practicable to fill the vacancy until the term of office of a successor elected at the next regular election has commenced. See C.R.S. 31-4-108. Page 63 of 553   City of Englewood/Council Policy and Procedures Page 20 | 25   F. Term of Successor. The successor shall serve until their successor is elected for the remainder of the term at the next ensuing general municipal election and such individual has been duly qualified. G. Multiple vacancies. If three or more vacancies exist in the City Council simultaneously, such vacancies shall be filled for the respective unexpired terms at a special election. IX. ELECTRONIC PARTICIPATION A. Purpose. The purpose of this City Council Policy is to specify the circumstances under which a member of the City Council, any member of a City board, commission or committee (collectively “board”),, City staff, and the public may participate in regular and special meetings, quasi-judicial proceedings, and executive sessions by telephone, online conferencing methods, video conferencing, or other electronic means (“electronic participation”). With advancements in communication and videoconference equipment and capabilities, electronic meeting participation has become wide-spread within many local governments. However, electronic participation has inherent limitations because electronic participation is subject to internet bandwidth limitations, technological difficulties, and may preclude an elected or appointed member City Council Member from viewing documentary information presented during meetings, from fully evaluating a speaker's non-verbal language in assessing veracity or credibility, and from observing nonverbal explanations (e.g., pointing at graphs and charts) during a speaker's presentation or testimony. In addition, electronic participation during executive sessions prevents the City from ensuring compliance with state law regarding confidentiality of matters discussed. The City Council finds that these limitations inherent in electronic participation may produce inefficiencies in meetings, increase the expense of meetings, and may undermine the decision-making process. B. Statement of Policy. Members of the City Council, appointed member of a board, City staff, and the public may electronically participate in meetings of the City Council or City board only in accordance with this Policy. Electronic participation shall be made available and shall be limited as follows: 1. Electronic participation is intended to be an infrequent or occasional substitution for physical attendance by members of the City Council, members of a board, the City Manager, the City Attorney, City board staff liaisons, and the City Clerk. Electronic participation encourages participation in City government by citizens, and therefore members of the public and City staff members (except those specifically described above, whose in-person attendance is preferred) may electronically participate in all City Council meetings open to the public. 2. The preferred method of electronic participation is through videoconference with the camera on but microphone muted, except when the participant is actually speaking. This allows the participant to hear, speak, and see presentations during the meeting. 3. Electronic participation must permit clear, uninterrupted, and two-way communication. The City Council or a City board may discontinue the use of electronic participation by one or more participants during a meeting where the participation results in delays or interference in the meeting process; e.g., where the connection is repeatedly lost, the quality of the connection is unduly noisy, or the participant is unable to hear speakers using a normal speaking voice amplified to a level suitable for the meeting audience in attendance. C. Procedures. To arrange to participate electronically, a participant shall: 1. Complete the City on-line form for electronic participation or contact the City Clerk or City staff liaison to arrange for electronic participation and receive electronic participation directions, which may include call-in instructions, a link to participate by videoconference, or otherwise. All City Page 64 of 553   City of Englewood/Council Policy and Procedures Page 21 | 25   Council members or City board members shall endeavor to advise the City Clerk or staff liaison of their intent to participate electronically, along with the reason for the in-person absence, at the earliest possible time and not less than three (3) business days prior to the requested participation. 2. Log in and/or call in at the designated time, pursuant to directions received from the City Clerk or City staff liaison. D. Quorum. Electronic participation shall constitute actual attendance for purposes of establishing a quorum or for any other purpose, even during quasi-judicial proceedings. Despite the foregoing, a majority of an appointed board or at least four members of the City Council must be physically present and in-person at every City Council meeting, unless the presiding chairperson Mayor (or Mayor Pro Tem in the Mayor’s absence) calls an electronic participation meeting at which a majority of a quorum of City Council or the board present declares an in-person meeting by at least four Council Members is not feasible due to emergency (such as a public health crisis, weather, natural disaster, or other similar circumstance) (hereafter an “approved fully-electronic meeting”). E. Chairperson. The chairperson of all City Council meetings shall be a person physically present at the meeting, except at a meeting called to consider whether to approve a fully-electronic meeting and at an approved fully-electronic meeting. F. Executive Session. No one may electronically participate in executive session, except at an approved fully-electronic meeting. Any City Council or board member that was unable to attend an executive session may review the audio recording at the City Clerk’s Office, within 90 days of the executive session. If executive session is held during an approved fully-electronic meeting, to ensure the confidentiality of matters presented, each City Council or board Member electronically participating shall verbally confirm that no third party is in the member’s presence, such that they could see and/or hear the contents of the executive session. X. PERSONNEL A. Annual Evaluation of City Officers. The City Council shall evaluate the performance of the City Manager and City Attorney annually, or as otherwise required by contract. The annual performance evaluation shall provide the City officer with information to allow such officer to act in conformance with the goals and expectations of the City Council. 1. Annual Wage Adjustment. The City Manager and City Attorney shall receive an annual wage adjustment as set by formal action of the City Council. 2. Timeline/Procedure. The job performance of the City Manager and City Attorney, officers of the City, are typically evaluated annually in accordance with the terms of their employment contracts. The City Council will participate in a review of each officer and will be afforded the opportunity to provide comments and feedback on performance and process. The Human Resources Director may assist the City Council as requested. If the information is compiled in written format, the applicable officer will be given a copy of the written review and will meet in executive session with the City Council to go over the review, discuss any points of concern and develop performance measures/job directives for the subsequent year. 3. Meeting with City Officers. At least one time per year, the City Council will meet with the City Attorney in executive session for attorney client privilege. The City Attorney shall present an annual report of activities and legal services rendered by the City Attorney’s office and any outside legal counsel. B. Municipal Court Judge/ Municipal Court Budgetary Review. The Municipal Court Judge of the City of Englewood, as an elected official, shall meet annually with the City Council to discuss Page 65 of 553   City of Englewood/Council Policy and Procedures Page 22 | 25   budgetary matters for the municipal court. The Municipal Court Judge, in coordination with the City Manager and the Human Resources Department, shall conduct an annual salary survey of similar highest-ranking judge of courts of comparable operations located within the Denver metropolitan area. The Municipal Court Judge shall provide the list of comparables to the City Manager and Human Resources for completion of the survey. The City Council shall annually determine the appropriate compensation for the Municipal Court Judge by resolution after consideration of the annual survey but prior to the end of the calendar year. The Municipal Court Judge shall be invited to participate in any such discussions which shall take place in open session. XI. AGENDA SETTING A. Mayor/Manager Meeting. The Mayor and Mayor Pro Tem shall meet with the City Manager weekly, or as often as shall be necessary, to set the agenda for regular meetings, special meetings, and study sessions. B. City Manager: Authority to Set Agenda Items. The City Manager through the course of managing city business and under direction of the City Council puts forth agenda items that ensure the efficient and uninterrupted services that residents expect and depend upon. C. City Council Members: Authority to Set Agenda Items. City Council members may submit requests for agenda items during their Council Communication at the end of any regular meeting or study session of the body. If a consensus of members agree that such matter should be placed upon an upcoming agenda, the matter will be scheduled for an appropriate City Council meeting within thirty days of the date of the request or within a reasonable time thereafter, if thirty days is not practicable for complex matters. If the body does not reach consensus to place such matter on an upcoming agenda, the requesting member may either choose not to pursue such request or may submit a written request to the City Clerk. The written request shall provide at a minimum a description of the request, the goal or objective that the request aims to fulfill, and a self- assessment as to the urgency of the matter. The City Clerk shall provide such request to the City Manager who will provide such request to the Mayor and Mayor Pro Tem to schedule such matter accordingly. D. Proclamations. 1. Requesting a Proclamation. Proclamations may be requested by: City Council members; individual community members; community organizations; City staff; and/or regional/national organizations. 2. Pre-Approved Proclamations. At or prior to the beginning of each calendar year, City Council will hold a study session to review proposed proclamations for the current year and will, based on past proclamations, by consensus create a list of priority proclamations City Council anticipates will be approved in the coming year. These pre-approved proclamations will be on the designated meeting agenda, and unless at least four City Council members voice an objection when the proclamation is presented, the proclamation will be read into the record without additional City Council action. 3. Process to Request Other Proclamations. For proclamations other than pre-approved proclamations, eligible parties may submit a proclamation request through an electronic proclamation request form. For those without access to a computer/the internet, requests may be submitted in writing to the City Clerk’s Office. Requests must include: contact name; address; city, state, and zip code; phone number; e-mail address; proclamation title; name of individual who will present the proclamation; date to be printed on the proclamation; and proclamation text, including whereas statements and therefore statements. Page 66 of 553   City of Englewood/Council Policy and Procedures Page 23 | 25   i. Proclamation Timeframe. Proclamation requests should be submitted at least three weeks before the start of the day/week/month being recognized. Every attempt will be made to ensure that proclamations are issued just before or at the very beginning of the time period being recognized. ii. Reasons for a Proclamation. Proclamations should be utilized to meaningfully celebrate persons, groups, and events with specific intended actions. They may be requested for the following reasons: recognition of a local event; to honor persons or groups who impact the City of Englewood; regionally, state-wide, or nationally recognized events or activities with local interest; to bring public attention to an issue or opportunity important for the community overall; and/or to declare a policy stance as a City. iii. Proclamation Review Process. The review process will include: 1. Proclamation requests pursuant to this policy may be made throughout the year; 2. Requests will be received and reviewed by the City Clerk’s Office to ensure (through a checklist) that all requirements of this policy are met; 3. If policy requirements are met, the draft proclamation will be sent to the City Council for feedback and concerns to be expressed during Council Members’ Choice the week before inclusion on the City Council Agenda; and 4. If there is no consensus when discussed during Council Members’ Choice, the proposed proclamation will not move forward. If there is a consensus, the proclamation will be placed on the next agenda of the City Council regular meeting, and treated as a pre-approved proclamation for purposes of reading into the record pursuant to the provisions above. XII. ADMONITION AND CENSURE OF COUNCIL MEMBERS A. Policy of Legal Compliance. City Council members shall abide by federal and state law, City ordinances, and City policies, including Colorado Constitution Article XXIX Ethics in Government, C.R.S. § 24-18-109 Rules of conduct for local government officials and employees, and Englewood Municipal Code Title 1, Chapter 11 Code of Ethics. Violations of such law or policy undermine the public trust, and the effectiveness of City Council as a whole. Depending on the circumstances of alleged violations of law or policy, the Council may initiate an investigation of allegations prior to the filing of a request for any of the actions described in this policy. Nothing in this policy, however, shall preclude individual Council Members from making public statements regarding such alleged conduct or taking other actions authorized by law. This policy is not intended to replace, delay or otherwise impede any concurrent investigation from any other body or agency. Therefore, at any point during any of the processes described in this policy, the Council (or any member thereof) may refer the matter for investigation to the Englewood Police Department, Arapahoe County District Attorney, the Colorado Independent Ethics Commission, and/or other appropriate agency. Such a referral does not impact any action the Council may undertake under this policy. B. Authorized Actions by City Council. While City Council has broad discretion in deciding actions it may choose to take in response to violations of law or policy, this policy provides Page 67 of 553   City of Englewood/Council Policy and Procedures Page 24 | 25   definitions and procedures related to two types of action: admonition and censure. This policy does not limit or otherwise affect any other potential City Council action. 1. Admonition. An admonition is typically directed to all members of City Council, reminding them that a particular action or type of behavior is in violation of law or City policy or is otherwise inappropriate for a member of City Council, and that, if it occurs or is found to have occurred, could make a member subject to censure or other further action. An admonition may or may not be issued in response to a particular alleged action or actions. An admonition may be issued by City Council prior to any findings of fact regarding allegations, and because it is a warning or reminder, would not necessary require an investigation or separate hearing to determine whether the allegation is true. An admonition also may criticize a specific Council Member’s conduct. The right to criticize is protected by the First Amendment, and therefore an admonition may be made individually by a Council Member during Council Member’s Choice, or formally issued by City Council if approved by motion as a scheduled agenda item. While an admonition generally is verbal and memorialized only in the minutes of a meeting, an admonition may be in writing and included in the meeting record. 2. Public Censure. Censure, specifically authorized by EMC 1-11-9(B), is an official reprimand or condemnation made by City Council in response to specified conduct by one of its own members. Censure is disciplinary in nature, and requires the formal adoption of a Resolution setting forth the Council Member’s alleged violations of law and/or policies. A Resolution of Censure may require a Member to recuse themselves from a vote in which they are found to have a personal/private conflict of interest. Censure may require an investigation and/or public hearing pursuant EMC 1-10-2-7 prior to issuance, and must protect the due process rights of the Council Member. In order to protect Council Members from unfounded allegations and/or defamatory claims/actions, upon direction of four or more Council Members, allegations may be investigated administratively to determine probable cause prior to inclusion on a Council agenda. If a formal censure action is placed on a Council agenda, the City Clerk shall provide notice of the action to the subject Council Member. The notice shall describe the specific allegation(s) upon which the proposed censure is based. Upon request by the subject Council Member, City Council shall schedule a quasi-judicial hearing to receive evidence and weigh testimony prior to consideration of a Resolution of Censure. The subject Council Member has a conflict of interest, and therefore can only participate as the subject of the quasi-judicial hearing and proposed Resolution, and not as a fact-finding Council Member in the hearing, deliberation, or Resolution issuance. Censure carries no fine or suspension of the rights of the Council Member as an elected official but a censure is a punitive action that serves as a public notice of wrongdoing. XIII. GRANT APPLICATIONS POLICY Formatted: Font: Bold Page 68 of 553   City of Englewood/Council Policy and Procedures Page 25 | 25   City staff has a long and successful history of applying for, and obtaining, grant awards to fund City operations and special projects. Applying for a grant, and then refusing to accept a grant award however, may impair the City’s ability to obtain similar grant awards in the future. Therefore, City Council considers and evaluates the following grant applications prior to submission: an application that binds the City to take future action/spend its own funds if the grant is awarded; grants in excess of $100,000; grants likely to be contentious or controversial within the community or among City Council members; if the failure to accept a grant award would likely negatively affect the success of a future grant application; grants that require City Council approval prior to application; or any other application requested for prior review and approval by City staff. Formatted: Font: (Default) Times New Roman Formatted: Font: (Default) Times New Roman Formatted: Font: (Default) Times New Roman Page 69 of 553 MINUTES City Council Regular Meeting Monday, July 24, 2023 1000 Englewood Parkway - 2nd Floor Council Chambers 6:00 PM 1 Study Session Topic a) City Manager Shawn Lewis, Deputy City Manager Tim Dodd, and Tri-Cities Homelessness Coordinator Mike Sandgren were present to provide an update on the Tri-Cities Homelessness Plan of Action. b) City Manager Shawn Lewis, Deputy City Manager Tim Dodd, and Tri Cities Homelessness Coordinator Mike Sandgren were present to discuss Safe Parking Pilot Program. c) Director of Finance Jackie Loh was scheduled to present the June 2023 Monthly Financial Report. This item was tabled until the August 7, 2023 City Council meeting. 2 Call to Order The regular meeting of the Englewood City Council was called to order by Mayor Pro- Tem Ward at 7:00 p.m. 3 Pledge of Allegiance The Pledge of Allegiance was led by Mayor Pro-Tem Ward 4 Roll Call COUNCIL PRESENT: Mayor Pro Tem Steven Ward Council Member Joe Anderson Council Member Chelsea Nunnenkamp Council Member Rita Russell Council Member Jim Woodward COUNCIL ABSENT: Mayor Othoniel Sierra STAFF PRESENT: City Manager Lewis City Attorney Niles City Clerk Carlile Deputy City Clerk Harkness Deputy City Manager Dodd Page 1 of 7 Draft Page 70 of 553 City Council Regular July 24, 2023 Director of Community Development Power Director of Finance Loh Director of Parks, Recreation, Library, and Golf Underhill Director of Public Works Rachael Chief of Police Watson Deputy Director Roach, Utilities System Administrator Munnell, Information Technology Network Administrator Hunnicutt, Information Technology Officer Roberts, Police Department 5 Consideration of Minutes of Previous Session a) Minutes of the Regular City Council Meeting of July 17, 2023. Moved by Council Member Chelsea Nunnenkamp Seconded by Council Member Joe Anderson APPROVAL OF THE MINUTES OF THE REGULAR CITY COUNCIL MEETING OF JULY 17, 2023. For Against Abstained Chelsea Nunnenkamp (Moved By) x Joe Anderson (Seconded By) x Steven Ward x Rita Russell x Jim Woodward x 5 0 0 Motion CARRIED. 6 Appointments, Communications, Proclamations, and Recognition a) City Council recognized new Board and Commission Member appointees. • C. Ann Dickerson • James Horan • Peter Eckel • Juneyer (Jay) Knight • Carson Green • Robert Watson • Sonja Strom • Shane Smith • Theresa Adams • Lia Moran • Erica Krysl • Diane Reinhard • Brad Nixon Page 2 of 7 Draft Page 71 of 553 City Council Regular July 24, 2023 • Mary Mills Lambert • Madison Andrews • Sherri Stinson • Mitchell Waldman • Emma Wood • Jena Biondolilo • Camille Keyes • Chris Rey • Shelly Oren • Patrick Fitzgerald • Tracy Csavina • Shane Smith b) City Council recognized the Englewood Library. 7 Recognition of Scheduled Public Comment a) Kevin Wright, an Englewood resident, addressed Council regarding storm water drainage and infrastructure. b) Kim Wright, an Englewood resident, addressed Council regarding privacy concerns, the special election, and held a moment of silence for a woman who lost her life in a flood five years ago in Englewood. 8 Recognition of Unscheduled Public Comment a) Mary Colecchi, an Englewood resident, addressed Council regarding homelessness. b) C. Ann Dickerson, an Englewood resident, addressed Council regarding the proposed Englewood Arts contract and the special election. c) Jan Weipert, an Englewood resident, addressed Council regarding the special election, affordable housing, the recall, and infrastructure. d) Regan Benson addressed Council regarding homelessness. e) Gary Kozacek, an Englewood resident, addressed Council regarding his notice of intent to sue the City of Englewood. f) Carson Green addressed Council regarding Code Next, density, development, quality of life and to tender his resignation from the Code Enforcement Advisory Committee. g) Nicolas Young, an Englewood resident, addressed Council regarding lack of enforcement of Federal Disability Rights laws in regards to accessibility. h) Vicki Hoffman, addressed Council regarding storm drainage and infrastructure concerns. Council Member Russell responded to Public Comment. The meeting recessed at 8:05 p.m. for a break. The meeting reconvened at 8:14 p.m. all Council Members were present. Page 3 of 7 Draft Page 72 of 553 City Council Regular July 24, 2023 9 Consent Agenda Items a) Approval of Ordinances on First Reading There were no additional Ordinances on First Reading (See Agenda Items 11 (a)(i).) b) Approval of Ordinances on Second Reading. There were no Ordinances on Second Reading. c) Resolutions and Motions There were no additional Resolutions or Motions (See Agenda Item 11 (c) (i)- (iii).) 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 Retail sales ban of live dogs and cats Moved by Council Member Jim Woodward Seconded by Council Member Steven Ward COUNCIL BILL NO. 32, INTRODUCED BY COUNCIL MEMBER WOODWARD A BILL FOR AN ORDINANCE CREATING TITLE 7 CHAPTER 1C SECTION 7-1C-7 OF ENGLEWOOD MUNICIPAL CODE PROHIBITING RETAIL SALE OF DOGS AND CATS. For Against Abstained Chelsea Nunnenkamp x Joe Anderson x Steven Ward (Seconded By) x Rita Russell x Jim Woodward (Moved By) x 3 2 0 Motion FAILED Page 4 of 7 Draft Page 73 of 553 City Council Regular July 24, 2023 b) Approval of Ordinances on Second Reading There were no Ordinances on Second reading. c) Resolutions and Motions i) Contract with Englewood Arts for use of a portion of the Englewood Civic Center Moved by Council Member Rita Russell Seconded by Council Member Chelsea Nunnenkamp Motion to table item 11ci to August 7, 2023 For Against Abstained Chelsea Nunnenkamp (Seconded By) x Joe Anderson x Steven Ward x Rita Russell (Moved By) x Jim Woodward x 3 2 0 Motion CARRIED. ITEM TABLED ii) Contract with Historic Englewood for use of a portion of the Englewood Civic Center Moved by Council Member Jim Woodward Seconded by Council Member Chelsea Nunnenkamp Approval of contract with Historic Englewood for use of a portion of the Englewood Civic Center. For Against Abstained Chelsea Nunnenkamp (Seconded By) x Joe Anderson x Steven Ward x Rita Russell x Jim Woodward (Moved By) x 5 0 0 Motion CARRIED. iii) Contract for election services for recall special election Page 5 of 7 Draft Page 74 of 553 City Council Regular July 24, 2023 Moved by Council Member Jim Woodward Seconded by Council Member Steven Ward Approval of a contract with Community Resource Services of Colorado, LLC for recall special election administration. For Against Abstained Chelsea Nunnenkamp x Joe Anderson x Steven Ward (Seconded By) x Rita Russell x Jim Woodward (Moved By) x 5 0 0 Motion CARRIED. 12 General Discussion a) Mayor's Choice i) Council discussed process for filling At Large Council vacancy. ii) Executive Session Moved by Council Member Steven Ward Seconded by Council Member Rita Russell Motion to move into Executive Session for a conference with the City attorney for the purpose of receiving legal advice on specific legal questions under C.R.S. Section 24-6-402(4)(b). For Against Abstained Chelsea Nunnenkamp x Joe Anderson x Steven Ward (Moved By) x Rita Russell (Seconded By) x Jim Woodward x 5 0 0 Motion CARRIED. The meeting recessed at 9:19 p.m. to go into Executive Session with 5 members, Mayor Sierra was absent. The meeting reconvened at 9:56 p.m. with 5 Council Members present. Moved by Council Member Rita Russell Seconded by Council Member Joe Anderson Page 6 of 7 Draft Page 75 of 553 City Council Regular July 24, 2023 Motion to close the Executive Session. For Against Abstained Chelsea Nunnenkamp x Joe Anderson (Seconded By) x Steven Ward x Rita Russell (Moved By) x Jim Woodward x 5 0 0 Motion CARRIED. b) Council Members' Choice 13 City Manager’s Report 14 Adjournment MAYOR PRO-TEM WARD MOVED TO ADJOURN. The meeting adjourned at 10:14 p.m. City Clerk Page 7 of 7 Draft Page 76 of 553 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Stephanie Carlile DEPARTMENT: City Clerk's Office DATE: August 7, 2023 SUBJECT: CB-33 Recall Special Election DESCRIPTION: Recall Special Election RECOMMENDATION: Staff recommends Council approve an Ordinance setting October 3, 2023 as the date for a recall election and designate that the election be conducted by mail ballot. SUMMARY: On April 19, 2023 affidavits to recall District 1 Council Member (Mayor) Othoniel Sierra, District 2 Council Member Chelsea Nunnenkamp, District 3 Council Member Joe Anderson and At- Large Council Member Cheryl Wink were filed with the City Clerk. Approved petitions began to circulate on May 7, 2023. The recall petition for District 2 was timely filed and deemed sufficient on June 15, 2023, the recall petition for District 1 was timely filed and deemed sufficient on June 23, 2023, and the recall petition for At-Large was timely filed and deemed sufficient on July 5, 2023. A recall petition for District 3 Council Member Joe Anderson was timely filed and deemed sufficient, however, it will be presented to Council on August 7 following the protest period. Per State law and City Charter §34, the municipal clerk shall submit a filed recall petition, together with a certificate of its sufficiency, to the governing body at the first meeting following expiration of the period within which a protest may be filed or at the first meeting of such body following the determination of a hearing officer that a petition is sufficient, whichever is later. Council shall set a date for a recall election to be held not less than sixty (60) days nor more than one hundred twenty (120) days after filing of the recall petition unless within said period of time a general municipal election, a special municipal election or a general state election is to be held. A copy of the recall petitions are on file and available for review in the City Clerk's office. The recommended date to hold a special election within said timeframe is Tuesday, October 3, 2023, to be conducted by mail in ballot only. ANALYSIS: In accordance with the Englewood Charter, the recall elections can be held between August 7, 2023 and October 6, 2023. State Statute 31-10-108 does not allow an election to be held 32 days prior to a General Election so the recall election must be held prior to October 6, 2023. Page 77 of 553 After taking into consideration the preparation time to administer an election, staff is recommending a mail ballot election be held on October 3, 2023. COUNCIL ACTION REQUESTED: Staff is requesting City Council set October 3, 2023 for a Special Election by mail ballot for the voters to determine whether Chelsea Nunnenkamp shall be recalled from the office of Englewood City Council Member representing District 2, Othoniel Sierra shall be recalled from the office of Englewood City Council Member representing District 1, and Cheryl Wink shall be recalled from the office of Englewood City Council Member At-Large. FINANCIAL IMPLICATIONS: The cost for this special election will depend on many variables including the programming of ballot (multiple districts), number of ballots mailed out, election equipment costs and overall election administration fees. The special election is estimated to cost $137,000. If a Council Member is recalled by the majority vote, the office is deemed vacant and shall be filled at an election called by Council not less than 60 days nor more than 120 days after the recall election (December 2, 2023 - January 31, 2024). ATTACHMENTS: Council Bill #33 Page 78 of 553 1 ORDINANCE COUNCIL BILL NO. 33 NO. _____________ INTRODUCED BY COUNCIL SERIES OF 2023 MEMBER WOODWARD AN ORDINANCE CALLING A SPECIAL MUNICIPAL MAIL BALLOT ELECTION FOR OCTOBER 3, 2023, TO DETERMINE WHETHER THE FOLLOWING CITY COUNCIL MEMBERS WILL BE RECALLED FROM OFFICE: CHELSEA NUNNENKAMP, DISTRICT 2; OTHONIEL SIERRA, DISTRICT 1. WHEREAS, Englewood Home Rule Charter §34, as supplemented by C.R.S. § 31-4-501 et seq., provides for the process of creating, authorizing, circulating, signing and filing petitions to call for a recall election for any elected official within the City; and WHEREAS, on June 8, 2023, a petition for recall for Council Member Chelsea Nunnenkamp was filed with the City Clerk; and WHEREAS, on June 15, 2023, the City Clerk determined the petition contained the requisite information and signatures numbering at least twenty-five percent (25%) of the registered electors voting for all the candidates for the elected officer’s respective office in the last preceding general municipal election; and WHEREAS, on June 16, 2023, a petition for recall for Mayor Othoniel Sierra was filed with the City Clerk; and WHEREAS, on June 23, 2023, the City Clerk determined the petition contained the requisite information and signatures numbering at least twenty-five percent (25%) of the registered electors voting for all the candidates for the elected officer’s respective office in the last preceding general municipal election; and WHEREAS, pursuant to City Charter §34 and C.R.S. § 31-4-501 et seq., the City Clerk shall submit a filed recall petition, together with a certificate of its sufficiency, to the governing body of such municipality at the first regular meeting of such body following the date of filing, and City Council shall set a date for a recall election to be held not less than sixty (60) days nor more than one hundred twenty (120) days after filing of the recall petition unless within said period of time a general municipal election, a special municipal election or a general state election is to be held; and WHEREAS, to act in accordance with the provisions of City Charter §34 and C.R.S. § 31-4-501 et seq. regarding setting the date for special elections, the City Council must set a date for a special election to take place within the 60 to 120 days following the date of filing of the petition, less the 32 days prior to the general election of November 7, 2023, during which no special election may take place in accordance with C.R.S. § 31-10-108. Page 79 of 553 2 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. The City Council of the City of Englewood, Colorado, hereby calls a Special Election by mail ballot for October 3, 2023 for the registered electors of City Council District 2 to determine whether Chelsea Nunnenkamp shall be recalled from the office of Englewood City Council Member representing District 2. Section 2. The following ballot title and ballot question is hereby set: SHALL CHELSEA NUNNENKAMP BE RECALLED FROM THE OFFICE OF CITY COUNCIL MEMBER? Section 3. The City Council of the City of Englewood, Colorado, hereby calls a Special Election by mail ballot for October 3, 2023 for the registered electors of City Council District 1 to determine whether Othoniel Sierra shall be recalled from the office of Englewood City Council Member representing District 1. Section 4. The following ballot title and ballot question is hereby set: SHALL OTHONIEL SIERRA BE RECALLED FROM THE OFFICE OF CITY COUNCIL MEMBER? Section 5. The Special Elections shall be held in accordance with the applicable provisions of Englewood Home Rule Charter §14, §34, and applicable provisions of the Colorado Revised Statutes. Section 6. General Provisions Applicable to this Ordinance The following general provisions and findings are applicable to the interpretation and application of this Ordinance: A. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this Ordinance or its application to other persons or circumstances. B. Publication. Publication of this Ordinance may be in the City’s official newspaper, the City’s official website, or both. Publication shall be effective upon the first publication by either authorized method. C. Actions Authorized to Effectuate this Ordinance. The Mayor is hereby authorized and directed to execute all documents necessary to effectuate the approval authorized by this Ordinance, and the City Clerk is hereby authorized and directed to attest to such execution by the Mayor where necessary. In the absence of the Mayor, the Mayor Pro Tem is hereby authorized to execute the above-referenced documents. The execution of any documents by said officials shall be conclusive evidence of the approval by the City Page 80 of 553 3 of such documents in accordance with the terms thereof and this Ordinance. City staff is further authorized to take additional actions as may be necessary to implement the provisions of this Ordinance, and has authority to correct formatting and/or typographical errors discovered during codification. Introduced and passed on first reading on the 17th day of July, 2023; and on second reading, in identical form to the first reading, on the ___ day of ____________, 2023. Othoniel Sierra, 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 an Ordinance, introduced and passed in identical form on first and second reading on the dates indicated above; and published two days after each passage on the City’s official website for at least thirty (30) days thereafter. The Ordinance shall become effective thirty (30) days after first publication on the City’s official website. Stephanie Carlile Page 81 of 553 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Pieter Van Ry, Sarah Stone DEPARTMENT: Utilities DATE: August 7, 2023 SUBJECT: CB 35 - EPA WaterSense Program Partnership DESCRIPTION: Utilities staff is seeking City Council approval of the City of Englewood (City) Utilities Department's partnership in the Environmental Protection Agency’s (EPA) WaterSense Program. RECOMMENDATION: Utilities staff recommends City Council approve, by Ordinance, the City of Englewood Utilities Department’s partnership in the EPA WaterSense Program. The Water and Sewer Board recommended City Council approve the City's partnership during its July 11, 2023 meeting. PREVIOUS COUNCIL ACTION: None. SUMMARY: As a recommendation of the City’s 2022 Water Efficiency Plan, Utilities staff is seeking opportunities to provide customer education about smart water use. The EPA created WaterSense as a credible, national brand with a strong and consistent water-efficiency message. WaterSense aims to help consumers and businesses use water resources more efficiently to preserve them for future generations and to reduce water and wastewater infrastructure costs by reducing water consumption. The WaterSense program is a no-cost partnership that can enhance the City’s ability to promote the value of water and educate consumers and organizations to make smart choices regarding water use and water fixtures. ANALYSIS: This partnership provides numerous benefits to the City in context of the Utilities Department’s commitment to Sustainability. Obstacles in promoting demand-side resource management often include the lack of staff or resources to develop materials designed for communicating the need to use water more efficiently. WaterSense facilitates strategies to address this by providing access to materials such as public service announcements, fact sheets, brochures, press releases, and water-efficiency messages for utility customers. WaterSense also communicates information that details how other partners are promoting water efficiency for their organizations. Partnership includes adherence to requirements listed in WaterSense’s Partnership Pledge, as follows: Page 82 of 553 • Promotional partners assist EPA in educating others about the value of water, water efficiency and the WaterSense brand • Promote value of water efficiency and the meaning of the WaterSense label • Encourage eligible constituents to participate in WaterSense • Agree to provide a brief annual update about promotional activities involving water efficiency • Adhere to WaterSense Program Mark Guidelines • Feature WaterSense on website/related promotional materials • Allow EPA to promote partner’s participation in program • Support water efficiency programs; promote the WaterSense brand through education and awareness; sponsor rebates and financial incentives; conduct public outreach and business education; and provide water supply and conservation program data on an annual basis • Provide data on the results of any promotional activities and/or rebates offered (e.g., number of rebates processed). EPA uses these data to inform future program planning and document water savings associated with rebate programs Utilities staff believes that the Partnership Pledge is well within the capabilities of Utilities to adhere to and is worth the effort to maintain membership due to the associated benefits listed above. COUNCIL ACTION REQUESTED: Motion to approve an Ordinance authorizing a Council Bill for the City of Englewood Utilities Department’s partnership in the EPA’s WaterSense water efficiency promotional program. FINANCIAL IMPLICATIONS: The WaterSense Partnership is a no-cost program. CONNECTION TO STRATEGIC PLAN: Sustainability: • Water Protection: Protection of water resources, including rivers and streams Infrastructure: • Drinking Water Infrastructure Resiliency: Proactively in a cost-effective manner invests, maintains, improves and plans to protect water infrastructure ATTACHMENTS: Ordinance for Council Bill Contract Approval Summary (CAS) WaterSense Guidelines WaterSense Agreement WaterSense Promotional Partnership Terms & Conditions PowerPoint Presentation Page 83 of 553 ORDINANCE NO. ____ COUNCIL BILL NO. 35 SERIES OF 2023 INTRODUCED BY COUNCIL MEMBER WOODWARD AN ORDINANCE APPROVING THE CITY OF ENGLEWOOD’S FREE MEMBERSHIP IN THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY'S WATERSENSE PROGRAM AS A PROMOTIONAL PARTNER, TO HELP REDUCE MUNICIPAL WATER USE THROUGH WATER-EFFICIENT PRODUCTS AND CONSTRUCTION OF WATER-EFFICIENT NEW HOMES, AND AUTHORIZING THE CITY TO EXECUTE A WATERSENSE PARTNERSHIP AGREEMENT ON BEHALF OF THE CITY. WHEREAS, Article XIV, Section 18(2)(a) of the Constitution of the State of Colorado, and Part 2, Article 1, Title 29, C.R.S. encourages and authorizes intergovernmental agreements; and WHEREAS, Sections 29-1-203 and 29-1-203.5, C.R.S. authorize governments to cooperate and contract with one another to provide any function, service, or facility lawfully authorized to each; and WHEREAS, State and federal mandates require the City to review ways to reduce water demands in its service area; and WHEREAS, in June 2006 the United States Environmental Protection Agency (EPA) established the WaterSense program; and WHEREAS, WaterSense is a national voluntary partnership program designed to help reduce municipal water use across the country through water-efficient products and construction of water efficient new homes; and WHEREAS, the City of Englewood can become a promotional partner of the EPA WaterSense Program and thereby help promote the use of water-efficient tools in homes and businesses in the City and enhance its public education and outreach programs. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. The City Council of the City of Englewood hereby authorizes and approves the City of Englewood to enter into a Promotional Partnership Agreement with the U.S. EPA WaterSense Program with no cost to the City, in the form substantially the same as attached hereto as Exhibit A. Section 2. Staff is authorized to take all necessary actions to comply with the Agreement in order to achieve membership in WaterSense, including reporting data on Page 84 of 553 the results of promotional activities and aggregate data on rebates offered and processed as requested by WaterSense of utility and government partners. Section 3. The following general provisions and findings are applicable to the interpretation and application of this Ordinance: A. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this Ordinance or its application to other persons or circumstances. B. Inconsistent Ordinances. All other Ordinances or portions thereof inconsistent or conflicting with this Ordinance or any portion hereof are hereby repealed to the extent of such inconsistency or conflict. C. Effect of repeal or modification. The repeal or modification of any provision of the Code of the City of Englewood by this Ordinance shall not release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such provision, and each provision shall be treated and held as still remaining in force for the purposes of sustaining any and all proper actions, suits, proceedings, and prosecutions for the enforcement of the penalty, forfeiture, or liability, as well as for the purpose of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in such actions, suits, proceedings, or prosecutions. D. Safety Clauses. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Englewood, that it is promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. This Safety Clause is not intended to affect a Citizen right to challenge this Ordinance through referendum pursuant to City of Englewood Charter 47. E. Publication. Publication of this Ordinance may be in the City’s official newspaper, the City’s official website, or both. Publication shall be effective upon the first publication by either authorized method. F. Actions Authorized to Effectuate this Ordinance. The Mayor is hereby authorized and directed to execute all documents necessary to effectuate the approval authorized by this Ordinance, and the City Clerk is hereby authorized and directed to attest to such execution by the Mayor where necessary. In the absence of the Mayor, the Mayor Pro Tem is hereby authorized to execute the above-referenced documents. The execution of any documents by said officials shall be conclusive evidence of the approval by the City of such documents in accordance with the terms thereof and this Ordinance. Page 85 of 553 City staff is further authorized to take additional actions as may be necessary to implement the provisions of this Ordinance. G. Enforcement. To the extent this ordinance establishes a required or prohibited action punishable by law, unless otherwise specifically provided in Englewood Municipal Code or applicable law, violations shall be subject to the General Penalty provisions contained within EMC § 1-4-1. Introduced and passed on first reading on the 17th day of July, 2023; and on second reading, in identical form to the first reading, on the ___ day of ____________, 2023. Othoniel Sierra, 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 an Ordinance, introduced and passed in identical form on first and second reading on the dates indicated above; and published two days after each passage on the City’s official website for at least thirty (30) days thereafter. The Ordinance shall become effective thirty (30) days after first publication on the City’s official website. Stephanie Carlile Page 86 of 553 Contract Number City Contact Information: Staff Contact Person Phone Title Email Summary of Terms: Original Contract Amount Start Date 7/18/2023 Amendment Amount End Date n/a Amended Contract Amount Total Term in Years n/a Payment or Revenue terms (please describe terms or attached schedule if based on deliverables) The WaterSense Partnership is a no-cost program. City of Englewood, Colorado CONTRACT APPROVAL SUMMARY EPA WaterSense Partnership Agreement $ - $ - $ - 303.783.6852Sarah Stone SStone@EnglewoodCO.gov Utilities Deputy Director - Business Solutions and Engineering Renewal options available Both parties concur that this agreement is wholly voluntary and can be terminated by either party at any time and for any reason with no penalty. Termination will begin effective immediately upon written notice to or from the EPA WaterSense program. Upon termination from the program, partners agree to remove the WaterSense Page 87 of 553 CONTRACT APPROVAL SUMMARY Vendor Contact Information: Name Contact Address Phone Email City State Zip Code Contract Type: Please select from the drop down list Descripiton of Contract Work/Services Procurement Justification of Contract Work/Services EPA PSA-Professional Services Agreement As a recommendation of the City’s 2022 Water Efficiency Plan, Utilities staff is seeking opportunities to provide customer education about smart water use. The EPA created WaterSense as a credible, national brand with a strong and consistent water-efficiency message. WaterSense aims to help consumers and businesses use water resources more efficiently to preserve them for future generations and to reduce water and wastewater infrastructure costs by reducing water consumption. The WaterSense program is a no-cost partnership that can enhance the City’s ability to promote the value of water and educate consumers and organizations to make smart choices regarding water use and water fixtures. This partnership provides numerous benefits to the City in context of the Utilities Department’s commitment to Sustainability. Obstacles in promoting demand-side resource management often include the lack of staff or resources to develop materials designed for communicating the need to use water more efficiently. WaterSense facilitates strategies to address this by providing access to materials such as public service announcements, fact sheets, brochures, press releases, and water-efficiency messages for utility customers. WaterSense also communicates information that details how other partners are promoting water efficiency for their organizations. Partnership includes adherence to requirements listed in WaterSense’s Partnership Pledge, as follows: • Promotional partners assist EPA in educating others about the value of water, water efficiency and the WaterSense brand • Promote value of water efficiency and the meaning of the WaterSense label • Encourage eligible constituents to participate in WaterSense • Agree to provide a brief annual update about promotional activities involving water efficiency • Adhere to WaterSense Program Mark Guidelines • Feature WaterSense on website/related promotional materials • Allow EPA to promote partner’s participation in program Support water efficiency programs; promote the WaterSense brand through education and awareness; sponsor rebates and financial incentives; conduct public outreach and business education; and provide water supply and conservation program data on an annual basis • Provide data on the results of any promotional activities and/or rebates offered (e.g., number of rebates processed). EPA uses these data to inform future program planning and document water savings associated with rebate programs Utilities staff believes that the Partnership Pledge is well within the capabilities of Utilities to adhere to and is worth the effort to maintain membership due to the associated benefits listed above. Page 88 of 553 CONTRACT APPROVAL SUMMARY Source of Funds: Revenue CAPITAL ONLY A B C 1=A-B-C Capital Tyler New World Spent To Contract Budget Operating Year Project # / Task #Fund Division Account Line Item Description Budget Date Amount Remaining C 2023 -$ -$ -$ -$ C 2023 -$ -$ -$ -$ O -$ -$ -$ -$ Total Current Year -$ -$ -$ -$ C -$ -$ -$ -$ C -$ -$ -$ -$ O -$ -$ -$ -$ Total - Year Two -$ -$ -$ -$ GRAND TOTAL -$ -$ -$ -$ Process for Choosing Contractor: Solicitation Name and Number Attachment (For Capital Items Only / Expense Line Item Detail is Located in OpenGov): All Other Attachments: n/a NOTES/COMMENTS (if needed): For Operating Line Item Detail, please review information provided in Tyler New World For Capital Items, please review Prior Month's Project Status and Fund Balance Report General Ledger Account String Solicitation:Evaluation Summary/Bid Tabulation Attached Response of Proposed Awardee Prior Month-End Project Status and Fund Balance Report Evaluation Summary/Bid Tabulation AttachedEvaluation Summary/Bid Tabulation AttachedEvaluation Summary/Bid Tabulation AttachedContract Copy of Original Contract if this is an Amendment Copies of Related Contracts/Conveyances/Documents Addendum(s) Exhibit(s) Certificate of Insurance Page 89 of 553 WaterSense® Program Guidelines Version 5.5 May 2020 Page 90 of 553 WaterSense® Program Guidelines Version 5.5 2 May 2020 WaterSense® Program Guidelines 1. Introduction ........................................................................................................................3 1.1. Changes From the Previous Version.............................................................................3 2. General Program Information ...........................................................................................3 2.1. Program Overview ........................................................................................................3 2.2. Authority .......................................................................................................................4 2.3. Roles and Functions .....................................................................................................4 2.4. Third-Party Certification ................................................................................................6 3. WaterSense Specifications ...............................................................................................6 3.1. Evaluation Factors ........................................................................................................6 3.1.1. Evaluation Factors for Products and Homes ..........................................................6 3.1.2. Evaluation Factors for Professional Certification Programs ....................................8 3.2. Specification Development Process ..............................................................................8 3.3. Revisions to Specifications ...........................................................................................9 3.3.1. Technical Clarifications ..........................................................................................9 3.3.2. Editorial Revisions .................................................................................................9 3.3.3. Technical Revisions ...............................................................................................9 4. WaterSense Program Marks: Process, Use, and Monitoring and Enforcement ..........11 4.1. Process for Obtaining the WaterSense Label ..............................................................11 4.1.1. Products ..............................................................................................................11 4.1.2. Homes .................................................................................................................11 4.1.3. Programs .............................................................................................................12 4.2. Using the WaterSense Label.......................................................................................13 4.2.1. Products ..............................................................................................................13 4.2.2. Homes .................................................................................................................13 4.2.3. Programs .............................................................................................................14 4.3. Monitoring and Enforcement of Proper Label Use .......................................................14 4.3.1. Products ..............................................................................................................15 4.3.2. Homes .................................................................................................................16 4.3.3. Programs .............................................................................................................17 4.4. Monitoring and Enforcement of Proper Use of Other Program Marks..........................17 5. Partnerships .....................................................................................................................19 5.1. Partner Eligibility .........................................................................................................19 5.2. Partnership Agreements .............................................................................................20 5.3. Recognition .................................................................................................................24 5.4. Dispute Resolution and Partnership Termination ........................................................24 6. Measurement, Data Reporting, and Confidential Business Information ......................26 6.1. Program Measurement ...............................................................................................26 6.2. Data Reporting and Confidential Business Information ...............................................26 6.3. Ongoing Product/Program Certification .......................................................................27 7. Definitions ........................................................................................................................27 Appendix A - America’s Water Infrastructure Act.................................................................31 Page 91 of 553 WaterSense® Program Guidelines Version 5.5 3 May 2020 1. Introduction The U.S. Environmental Protection Agency (EPA) developed the WaterSense Program Guidelines to provide guidance on eligibility criteria, conditions for participation, and general information about WaterSense. These guidelines are also intended to be a road map for navigating various aspects of WaterSense, including partnership with EPA, the speci fication development process, use of the WaterSense label and other program marks, and program measurement. The WaterSense Program Guidelines serve as one of the controlling documents for WaterSense, along with the following: • WaterSense Product Certification System1 • WaterSense Home Certification System • WaterSense Professional Certification Program Labeling System • WaterSense Program Mark Guidelines These documents answer many questions participants might have about the program. For definitions of terms used throughout the WaterSense Program Guidelines, see Section 7. Participants with more in-depth questions about the WaterSense Program Guidelines should contact the WaterSense Helpline at watersense@epa.gov or (866) WTR-SENS (987-7367). 1.1. Changes From the Previous Version In Version 5.5 of the WaterSense Program Guidelines, the following content has been added or changed to reflect program updates: WaterSense reorganized the structure and roles involved in the administration of the Homes program and the certification and labeling of homes WaterSense will only alter this document when significant changes have been made to the program. Minor changes to wording or items not affecting the implementation of the program might be held until they can be consolidated into a substantive revision. 2. General Program Information 2.1. Program Overview WaterSense is a partnership program sponsored by EPA that is designed to protect the future of our nation’s water supply by promoting and enhancing the market for water-efficient products, homes, and professional certification programs (hereafter referred to as “programs”). WaterSense aims to help consumers and businesses use water resources more efficiently to preserve them for future generations and to reduce water and wastewater infrastructure costs by decreasing unnecessary water consumption. Through this program, EPA provides reliable information on water-efficient, high-performing products, homes, and practices; raises awareness about the importance of water efficiency; ensures water-efficient product performance; helps consumers and businesses identify products and services that use less water; promotes innovation in product development; and supports state and local water efficiency efforts.2 1 Any reference to controlling program documents refers to the most current version posted on the WaterSense website. 2 Note: WaterSense is not a technology development program; rather, it focuses on ready-for-market products. Page 92 of 553 WaterSense® Program Guidelines Version 5.5 4 May 2020 2.2. Authority • Section 4306 of the America’s Water Infrastructure Act (AWIA) of 2018 (Public Law No: 115-270) establishes the WaterSense Program as a voluntary program within EPA to identify and promote water-efficient products, buildings, landscapes, facilities, processes, and services in order to sensibly: reduce water use; reduce the strain on public water systems, community water systems, and wastewater and stormwater infrastructure; conserve energy used to pump, heat, transport, and treat water; and preserve water resources for future generations. A full copy of the provision is available in Appendix A. • Sections 104(a) and (b) of the Clean Water Act (CWA) broadly authorize the EPA Administrator to “establish national programs” for the reduction of pollution, which might include cooperation with, encouragement of, and assistance for public and private efforts to prevent, reduce, and eliminate pollution. • Section 104(o) of the CWA also authorizes the EPA Administrato r to conduct research on methods of reducing the total flow of sewage, including unnecessary water consumption, which is a recognition by Congress as directly related to sewage flow and thus, to potential water pollution. • Sections 1442(a)(1) and (2) of the Safe Drinking Water Act (SDWA) authorize the EPA Administrator to provide demonstrations relating to the provision of a dependably safe supply of drinking water. Because both a dependable and a safe supply of drinking water depend upon water availability, water conservation demonstrations could be authorized under these sections. 2.3. Roles and Functions To achieve the mission of the WaterSense program, EPA establishes partnerships with interested stakeholders, such as product manufacturers, retailers, builders, water utilities, and other organizations. EPA provides and maintains the WaterSense brand and develops national specifications for water-efficient products, homes, and programs. Partners develop products and programs meeting the specifications an d promote and distribute them to customers. Partners also assist EPA in promoting water efficiency in general as well as the WaterSense brand specifically. Following are the roles anticipated for each participant category. For more information about partnership eligibility, see Section 5.1. Partner Eligibility. • EPA: Sponsors WaterSense; promotes the WaterSense brand and water efficiency; recruits partners; updates stakeholders on the program; develops product , home, and program specifications; approves organizations that administer WaterSense certifications as described in the WaterSense Product Certification System, WaterSense Home Certification System, or WaterSense Professional Certification Program Labeling System; licenses certifying bodies and home certification organizations; evaluates applications submitted by professional certifying organizations and home certification organizations; signs WaterSense partnership agreements; maintains the web registry of labeled products and certification programs; monitors use of the WaterSense program logos and labels; and recognizes participants. • Manufacturers (e.g., companies that manufacture, produce, assemble, or import products that meet WaterSense specifications): Promote technology; improve product performance; make or brand products certified to meet WaterSense criteria; maintain Page 93 of 553 WaterSense® Program Guidelines Version 5.5 5 May 2020 product certification; advertise/promote WaterSense labeled products; and provide product shipment data on an annual basis. Manufacturers agree to abide by the WaterSense Program Mark Guidelines. Specifically, all manufacturer partners must include the WaterSense label on product packaging and online and printed specification sheets for all products certified to meet a WaterSense specification unless the packaging is too small. Manufacturer partners must also display the WaterSense label in association with any labeled product listed on the organization’s website or other promotional materials. • Professional certifying organizations: Administer professional certification programs that meet WaterSense criteria; provide water efficiency education; promote certified professionals; maintain and provide to EPA up-to-date contact and business information on professionals certified by the professional certifying organization’s labeled program(s); report program activity and statistics to EPA on an annual basis; help promote WaterSense and water efficiency ; and provide other support as specified in the WaterSense Professional Certification Program Labeling System . • Retailers/distributors: Provide shelf space and in-store promotion and identification of WaterSense labeled products; train sales staff; conduct consumer workshops; encourage cross-promotion and advertising/discounts; and provide product sales data on an annual basis. Retailers/distributors wishing to sell WaterSense labeled products under their own brand (e.g., private labeled products) agree to work with the manufacturer(s) of any labeled products to ensure that both the retailer/distributor’s and the manufacturer’s information are included in the WaterSense certification file and that the WaterSense Program Mark Guidelines are followed. • Utilities, water boards, and local governments: Support water efficiency programs; promote the WaterSense brand through education and awareness; sponsor rebates and financial incentives; conduct public outreach and business education; and provide water supply and conservation program data on an annual basis. • Associations, nonprofit organizations, and state and federal government agencies: Conduct water efficiency education and awareness campaigns; raise awareness of the WaterSense program; assist EPA with recruitment; distribute and publish water efficiency materials; provide data on an annual basis; and conduct constituent surveys. • Builders: Build, renovate, or otherwise produce homes in accordance with the WaterSense Specification for Homes; promote WaterSense labeled products and WaterSense labeled homes to consumers; report data on the number of homes built on an annual basis; and provide other support as specified in the WaterSense Home Certification System. • Other organizations (e.g., organizations with which EPA does not have partnership agreements, but with which it may sign other types of agreements or have other relationships to help implement the program ): o Accreditation bodies: Convey formal demonstration that licensed certifying bodies are competent to carry out product certification activities in accordance with WaterSense product specifications and the WaterSense Product Certification System. o Home certification organizations: Train and authorize verifiers; oversee the verification, certification, and labeling of homes in accordance with the WaterSense Homes Certification System and the WaterSense Specification for Page 94 of 553 WaterSense® Program Guidelines Version 5.5 6 May 2020 Homes; maintain and report to EPA information about authorized verifiers and certified homes; and authorize the use and distribution of the WaterSense label for homes. The home certification organization must signify their commitment by signing a licensing agreement with WaterSense. o Licensed certifying bodies: Conduct product testing and certification to demonstrate that a product meets and continues to meet WaterSense requirements for water efficiency and performance in accordance with the WaterSense Product Certification System and the relevant WaterSense product specification. Licensed certifying bodies also authorize manufacturers of certified products to use the WaterSense label ; provide a list of certified products to EPA; and police the label in the marketplace. o WaterSense home verifiers: Verify homes in accordance with the WaterSense Specification for Homes. 2.4. Third-Party Certification Products and homes bearing the WaterSense label are certified to meet the relevant WaterSense specification by third parties that are approved under the WaterSense Product Certification System or the WaterSense Home Certification System. Under no circumstances can a first or second party (see definitions below) serve as the third party in relation to a specific product or home (e.g., a manufacturer or builder is not eligible to certify its own product or home under any circumstances). • First party: The party responsible for the creation of a product or home. Manufacturers, manufacturer private labelers, and builders are considered first parties for purposes of the WaterSense program. • Second party: The person or organization that has a user interest in the object (e.g., procurer, purchaser, or user). Consumers, retailers, retailer/distributor private labelers, and other entities involved but not directly affiliated with f irst-party producers are considered second parties for purposes of the WaterSense program. • Third party: An entity independent of the first or second party. Licensed certifying bodies and home certification organizations are both third-party entities that perform assessments, tests, verifications, and other services to determine if a given product or home meets the criteria necessary to earn the WaterSense label. 3. WaterSense Specifications WaterSense evaluates, selects, and develops voluntary specifications for water -efficient products, homes, and programs based on a variety of factors and in accordance with specific guidelines outlined in this section. EPA can revise a specification or issue technical clarifications at any time after a specification is final. 3.1. Evaluation Factors WaterSense has adopted overarching evaluation factors that guide EPA in selecting products, homes, and programs for specification development and labeling. 3.1.1. Evaluation Factors for Products and Homes In general, when developing specifications, WaterSense evaluates products and homes for: Page 95 of 553 WaterSense® Program Guidelines Version 5.5 7 May 2020 • Water savings: Provides significant water savings on a national basis. • Performance: Performs as well as or better than standard models or homes, assuming proper installation, operation, maintenance, and/or construction. Products and homes will be easy to find and require no consumer sacrifice in terms of convenience, comfort, hygiene, health, safety, or availability. • Variety of technological options: Achieves water efficiency through several technology options. WaterSense will not label a category or specify a technology that has only one proprietary product or design. • Efficiency differentiation: Be effectively differentiated from standard models or homes by a label that purchasers can recognize. Typically, the specification is set to label products or homes that are at least 20 percent more water -efficient than conventional or standard products or homes in that category. • Independent third-party certification: Products and homes must be certified by an EPA-licensed certifying body or EPA-licensed home certification organization, respectively, to confirm that the product or home meets EPA’s criteria for efficiency and performance. • Measurable results: Provides measurable results, quantifiable in terms of water saved/water use avoided compared to standard models as well as level of desired performance achieved. • Cost-effectiveness: Provides a cost-effective alternative to consumers to the extent possible. • Stakeholder support: Supported by a broad set of stakeholders, meaning there is a general consensus that the efficient products or homes will be promoted by a cross - section of stakeholders (e.g., manufacturers, retailers, distributors, utilities, builders, irrigation professionals, etc.). As the evaluation factors listed above demonstrate, WaterSense will direct its limited resources to areas where the program can have a significant impact on improving the efficiency of products that use or directly control the use of water. As it evaluates performance of products, WaterSense also takes into consideration potential impacts beyond water efficiency , including environmental and economic impacts. This includes requesting and reviewing data to determine if there are any unintended or negative impacts that could be caused by anticipated specification requirements. There are often alternative technologies that serve a similar purpose as labeled products but use no water as part of the process. Because WaterSense has no basis to propose improvements to the existing water use, the program has chosen not to use its limited funding to develop specifications for these products. In addition, WaterSense evaluates whether a product can deliver both water efficiency and expected performance. Certain retrofit or component products that are designed to modify or control the water use of a base product but that cannot ensure an expected level of performance of the base product are generally not candidates for specification development. All labeled products must be able to deliver all the efficiency and performance criteria established in the WaterSense specification. Manufacturers of these products (e.g., non-water-using, retrofit devices) should note that it is not the intent of the WaterSense program to place these products at any disadvantage in the marketplace nor to affect their eligibility for water conservation incentives , purchasing guidelines, or specifications. EPA recognizes that many of these products might meet applicable national standards and can be appropriate water efficiency options. Decision makers should consider them Page 96 of 553 WaterSense® Program Guidelines Version 5.5 8 May 2020 as equally eligible for the same rebates, tax incentives, procurement guidelines, and other conservation incentives as WaterSense labeled products. Where a product category is covered by a WaterSense specification, EPA requires the use of the WaterSense label on product packaging to identify certified products. 3.1.2. Evaluation Factors for Professional Certification Programs In general, when developing specifications, WaterSense evaluates programs for: • Water savings: Promotes efficient practices resulting in water savings (e.g., professionals in the given industry must employ practices that address the efficient use of water). • Performance: Promotes efficient industry practices resulting in a system that does not sacrifice performance (e.g., an irrigation system must perform well). Services provid ed by certified professionals will be easy to find, and practices will require no sacrifice in terms of convenience, hygiene, health, safety, or availability. • Availability of relevant certification programs: The industry category must offer at least one certification program to industry professionals that results in demonstrated knowledge of water efficiency related to the professionals ’ practice. • Stakeholder support: Supported by a broad set of stakeholders, meaning there is a general consensus that the programs and professionals in this category will be promoted by a cross-section of stakeholders (e.g., retailers, distributors, builders, architects, utilities). 3.2. Specification Development Process EPA develops specifications that describe the attribute s required for products, homes, or programs to earn the WaterSense label. Specifications for products or homes generally describe both water use and performance attributes. Specifications for programs describe the attributes that must be followed to demonstrate compliance with the requirements described in the specification. All specifications are developed with stakeholder input. The process is described in detail below. After conducting initial technical and market research, EPA applies the evaluation fa ctors above to determine if a specification should be developed. If enough support exists to consider a specification, EPA typically issues a notice of intent (NOI) announcing its plans to develop a specification for a given product, home, or program. The NOI outlines the efficiency and performance criteria WaterSense is working to define and the technical issues that still need to be resolved related to the given product, home, or program. There is no commitment on the part of the Agency to develop a specification within a certain time period after release of the NOI, if at all. If the Agency receives information to answer remaining technical issues, EPA then prepares a draft specification based on market research and discussions with industry and interested stakeholders. Where possible, WaterSense might work with voluntary consensus standards bodies (e.g., American Society of Agricultural and Biological Engineers [ASABE], American Society of Mechanical Engineers [ASME], American Society for Testing and Materials [ASTM International], Canadian Standards Association [CSA]) or other industry groups to help develop the efficiency and Page 97 of 553 WaterSense® Program Guidelines Version 5.5 9 May 2020 performance criteria.3 Once a draft specification is complete, EPA releases it publicly via the WaterSense website, holds conference calls and/or public meetings, and requests written public comments. EPA considers all comments, refines the specification as appropriate, and then re - releases the specification in eithe r a revised draft or final form. The number of rounds of public review before the specification is finalized depends upon the nature and extent of comments on the prior draft. EPA considers all comments on key technical issues and requirements in the development of the final specification, as it strives to maintain a balance between environmental benefits and market factors. EPA has the ultimate authority in setting specification requirements after carefully considering all stakeholder input. 3.3. Revisions to Specifications EPA reserves the right to issue technical clarification(s) or revise WaterSense specifications should technological and/or market changes affect the relevance and/or effectiveness of current specifications to consumers, industry, or the environment. Revisions or clarifications made to specifications would include discussions with industry and other interested parties and would adhere to the following guiding principles. 3.3.1. Technical Clarifications In some cases, a technical clarification might be issued instead of a specification revision. From time to time, EPA receives questions regarding the applicability of existing specifications or the intended meaning of specification requirements. In an effort to answer such questions and c larify the intent of the specifications, EPA publishes technical clarification on the WaterSense website twice per year, usually December and June. EPA notifies stakeholders and licensed certifying bodies by email when clarification documents are posted to the WaterSense website. 3.3.2. Editorial Revisions EPA might sometimes find it necessary to issue an editorial update to an existing specification. These updates will generally include changes to citations in the specification, previously released technical clarifications, and/or other changes to content not directly related to the efficiency or performance criteria. When it becomes necessary to make an editorial change, WaterSense will work with affected stakeholders but, at its discretion, might not request public comment on the changes. 3.3.3. Technical Revisions At its discretion, EPA might choose to revise a specification. Any final decision to revise a specification is also contingent upon the resources available to the WaterSense program to undertake the technical work needed to complete a revision. Of note, AWIA requires that, not more frequently than every six years after adoption or major revision of any WaterSense performance criteria, EPA review and, if appropriate, revise the performance cri teria to achieve additional water savings. Conditions that might trigger a technical revision to a specification are described below. 3 The National Technology Transfer and Advancement Act (NTTAA) and OMB Circular A-119 direct the federal government to use, participate in the development of, and reference standards developed in voluntary consensus processes, where those standards meet government needs. Page 98 of 553 WaterSense® Program Guidelines Version 5.5 10 May 2020 3.3.3.1. Product Specifications • WaterSense labeled products in a specific category comprise a significant portion of the market share based on the number of units shipped as reported by WaterSense partners. In this instance, market share means the ratio of WaterSense labeled units to non-WaterSense labeled units sold in the same product category. • EPA identifies significant and broadly available improvements in technology or product design in any labeled product category that improves the product’s water efficiency. In this context, significantly improved products would be products that are approximately 10 percent more efficient or higher performing than current WaterSense labeled products, are offered by multiple manufacturers, and/or capture approximately 10 percent or more of the total market share for that product category. • EPA becomes aware of performance issues associated with products that are currently labeled under the specification. • A water efficiency standard is adopted nationally that would mandate product efficiency equivalent to that in the specification, such that the WaterSense label would no longer be able to differentiate products that were more efficient than those meeting the national standard. 3.3.3.2. Home Specification • EPA becomes aware of performance issues associated with products, systems, technologies, or designs that could impact consumer satisfaction with a WaterSense labeled home. • Likewise, if a WaterSense specification is finalized for a residential product or certification program, and adequate time has elapsed to ensure availability of that product or certified service professionals to builders in the marketplace. • Market factors that dictate the need for revisiting the current WaterSense Homes Program organization. 3.3.3.3. Program Specifications • EPA identifies significant and broadly available improvements in technolo gy or professional practice in any labeled professional certification program category that positively impact its ability to deliver water efficiency. • The requirement of certified professionals is adopted as a national standard, such that the WaterSense labeled programs would no longer be able to differentiate professional proficiency. Revisions will only be made to specifications after open dialogue with interested stakeholders and provided that the more water-efficient products, homes, or programs contin ue to meet the WaterSense product evaluation factors contained in this section. Any proposed technical revisions to a specification will undergo public review and comment. For existing labeled products and programs, EPA will provide a grace period for compliance with the revised specification, during which time they can continue to bear the WaterSense label. The timeline for compliance for any revision will be specified in the revised specification or supporting documentation, after careful consideration of the concerns of all interested parties. The length of the grace period is dependent upon the impact of the specification change to the associated sector (e.g., manufacturer or Page 99 of 553 WaterSense® Program Guidelines Version 5.5 11 May 2020 professional certification program) and will take into account the timing neces sary for the manufacture, marketing, training, and distribution of the product for which a specification change is being made. Following the expiration date of the grace period, products or programs will be required to meet the revised specification criteria in order to bear the WaterSense label. For those products or programs that do not meet the revised specification, the same requirements and timeframes for removal of the WaterSense label shall apply as when the WaterSense label is withdrawn, as described in Section 4.3. Monitoring and Enforcement of Proper Label Use. 4. WaterSense Program Marks: Process, Use, and Monitoring and Enforcement The WaterSense program has several different program marks used for differ ent purposes. The WaterSense label was created as the cornerstone to differentiate products, homes, and programs in the marketplace that meet EPA’s criteria for efficiency and performance. The WaterSense label itself looks significantly different than other WaterSense program marks, such as the WaterSense program logo, partner logo, and promotional labels, and it varies among products, homes, and programs. See the WaterSense Program Mark Guidelines for illustrations and usage instructions for the various WaterSense program marks. 4.1. Process for Obtaining the WaterSense Label The following sections describe the specific requirements for obtaining the WaterSense label for products, homes, and programs: 4.1.1. Products To ensure the integrity of the WaterSense label for products in the marketplace, EPA has established specific requirements to control how it is accessed and used. Use of the WaterSense label on products is limited to manufacturers, retailers, and distributors under the following conditions: • Manufacturers and retailers and/or distributors that private ly label or rebrand WaterSense labeled products must have a signed a partnership agreement with EPA that includes an agreement to abide by the WaterSense Program Mark Guidelines. • Any product that receives the label must have been certified to conform to the relevant WaterSense specification by a licensed certifying body in accordance with the WaterSense Product Certification System. The licensed certifying body provides the WaterSense label and authorization for its use to manufacturers, retailers, and distributors that have met the above criteria. Procedures for product certification and labeling, including the certification of private labeled or rebranded products, are described in the WaterSense Product Certification System. 4.1.2. Homes To ensure the integrity of the WaterSense label applied to homes, use of the label is limited to builders under the following conditions: • Builders must have a signed partnership agreement with EPA that includes an agreement to abide by the WaterSense Program Mark Guidelines. Page 100 of 553 WaterSense® Program Guidelines Version 5.5 12 May 2020 • The homes must be located in the United States, its territories, or Canada. • The homes must be certified to by an EPA-licensed home certification organization to conform to the WaterSense Specification for Homes in accordance with the WaterSense Home Certification System. WaterSense approves and licenses home certification organizations to certify homes to the WaterSense Specification for Homes. The home certification organization issues the WaterSense label in the form of a certificate and optional sticker to builders who have met the above criteria and constructed homes that meet the WaterSense Specification for Homes. Procedures for home verification, certification, and labeling are described in the WaterSense Home Certification System. 4.1.3. Programs To ensure the integrity of the WaterSense label with regard to programs, EPA has established specific requirements to control how the label is accessed and used. For more details, see the WaterSense Program Mark Guidelines. Use of the WaterSense label in relation to programs is limited to professional certifying organizations under the following conditions: • Professional certifying organizations must be generally approved by EPA according to the WaterSense Professional Certification Program Labeling System. • Professional certifying organizations must have a program that conforms to the relevant WaterSense specification. • Professional certifying organizations must have a signed partnership agreement with EPA. Organizations wishing to earn the WaterSense label for a certification program must be an EPA - approved professional certifying organization as described in the WaterSense Professional Certification Program Labeling System. Organizations must then submit an application to EPA requesting the label for its professional certification program and include all documentation required by the specification applicable to its program. EPA accepts forms and documentation that are submitted via email and mail. EPA (or its agent) will acknowledge receipt of the application packet and notify applicants of the Agency’s acceptance or rejection of the program for WaterSense labeling. If the program is accepted, the professional certifying organization shall complete and sign a WaterSense partnership agreement with EPA. EPA will then provide the professional certifying organization with the label and associated materials. If a professional certifying organization’s application to label a certification program is rejected, EPA will explain the deficiencies in the application so the deficiencies can be resolved. EPA updates the WaterSense web registry on a monthly basis to add newly labeled programs. EPA does not publish information about non -qualifying certification programs. Partners are responsible for informing EPA when their programs are no longer available or compliant with WaterSense specifications and should be removed from the web registry. Page 101 of 553 WaterSense® Program Guidelines Version 5.5 13 May 2020 4.2. Using the WaterSense Label EPA has established specific guidelines for using the WaterSense label to identify water -efficient, high-performing products, homes, and programs. For more details, see the WaterSense Program Mark Guidelines. 4.2.1. Products When using the WaterSense label to identify products that have been independently certified to meet EPA’s criteria for efficiency and performance, the manufacturer, retailer, and distributor partners must adhere to the following requirements: • In all instances, the manufacturer of a WaterSense labeled product is responsible for ensuring that the label is used in accordance with the WaterSense Program Mark Guidelines. • Any manufacturer partner wishing to use the label must have received the appropriate notification of third-party certification for the relevant product(s). • Specifically, for all products certified to meet a WaterSense specification, manufacturers must include the WaterSense label on product packaging and in online and printed specification sheets. Manufacturers should display the WaterSense label in association with any labeled product on the organization’s website or other promotional materials. The label can be used in promotional literature published about the product by the manufacturer or private labeler, as long as it is in direct association with a certified product. • Distributors and retailers who are distributing or selling WaterSense labeled products for which they are not a private labeler are only allowed to use the label when it is supplied directly by a WaterSense manufacturer partner. Alternatively, distributors and retailers are allowed to use the WaterSense promotional label to designate WaterSense labeled products in retail or distributor point-of-purchase, advertising, or internet sites. All parties should review the WaterSense Program Mark Guidelines prior to using the WaterSense label. To ensure the integrity of the WaterSense brand and as a service to assist manufacturers, distributors, and retailers with proper use of the WaterSense label, EPA encourages each participating manufacturer, distributor, or retailer to provide WaterSense electronic pre-publication samples of any promotional materials used to promote its WaterSense labeled product(s). EPA will provide review within five business days of any materials provided to the Agency prior to publishing. EPA also provides a promotional label to all of its partn ers to promote WaterSense labeled products when a specific product label is not available or appropriate. When using the WaterSense promotional label, partners should adhere to the WaterSense Program Mark Guidelines. 4.2.2. Homes The WaterSense label is provided to builders in the form of a certificate and optional sticker to identify homes that have been independently inspected and certified to meet EPA’s specification criteria for homes. The WaterSense label in the form of a certificate or sticker must b e used in accordance with the WaterSense Program Mark Guidelines. Page 102 of 553 WaterSense® Program Guidelines Version 5.5 14 May 2020 In addition to the WaterSense label certificate and optional sticker, EPA allows builders to use the WaterSense promotional labels to identify themselves as builders of WaterSense labeled h omes. The house-shaped WaterSense “we build” promotional label should only be used by WaterSense builder partners who are building in accordance with the WaterSense Specification for Homes. When using a WaterSense promotional label, builder partners must a dhere to the WaterSense Program Mark Guidelines. In addition to the builder promotional label, EPA allows home verifiers approved by a home certification organization to identify themselves as verifiers of WaterSense labeled homes. The house-shaped WaterSense “we verify” promotional label should only be used by verifiers who are verifying in accordance with the WaterSense Specification for Homes . When using a WaterSense promotional label, verifiers must adhere to the WaterSense Program Mark Guidelines. To ensure the integrity of the WaterSense brand , and as a service to assist builder partners with proper use of the builder promotional label, EPA encourages participating builder partner s to provide WaterSense electronic pre-publication samples of any promotional materials used to promote and identify themselves as builders of WaterSense labeled homes. EPA will provide review within five business days of any materials provided to the Agency prior to publishing. 4.2.3. Programs When using the WaterSense label to identify programs that have been approved by EPA, professional certifying organizations must adhere to the terms of the WaterSense Program Mark Guidelines. Specific requirements include: • Any professional certifying organ ization partner must have received appropriate notification of WaterSense program acceptance. • The WaterSense label can be used on promotional materials, brochures, advertisements, and websites promoting certification program(s) that meet EPA’s WaterSense criteria, in direct association with the qualified program. • The label cannot be used to imply direct endorsement of a certification program or organization by EPA. EPA requests that professional certifying organization partners provide WaterSense electronic pre- publication samples of any promotional materials using the WaterSense label to promote its recognized certification program. EPA will provide review within five business days of any materials provided to the Agency prior to publishing. Individuals certified by a WaterSense labeled certification program cannot use the WaterSense label or partner logo but are free to use the promotional label as described in the WaterSense Program Mark Guidelines. The promotional label can be used anywhere in promotional materials to generally promote WaterSense labeled products and programs. 4.3. Monitoring and Enforcement of Proper Label Use EPA will monitor and enforce proper use of the WaterSense label in relation to products, homes, and programs. In the case of products and homes, the licensed certifying body or home certification organization that conducted the certification will provide additional oversight. Specific procedures for monitoring and enforcing the use of other WaterSense program marks are Page 103 of 553 WaterSense® Program Guidelines Version 5.5 15 May 2020 described in more detail in Section 4.4. Monitoring and Enforcement of Proper Use of Other Program Marks. 4.3.1. Products 4.3.1.1. Label Use Monitoring As described in the WaterSense Product Certification System, licensed certifying bodies monitor and enforce the use of the WaterSense label for the products that they certify in accordance with the WaterSense Program Mark Guidelines. Licensed certifying bodies monitor th e use of the label through: • Annual post-market product surveillance, such as facility/warehouse audits, product retesting, and retail outlet audits. • Review of pre-publication materials. • Follow-up on alerts from manufacturers, EPA, and stakeholders. EPA reserves the right to conduct additional oversight of the product certification and labeling process as necessary, which might include but is not limited to: • Review of accreditation body and certification body documents. • Accompanying inspectors and/or auditors on site visits. • Retesting of products. • Discussions with consumers, building owners, or other users of WaterSense labeled products. EPA also conducts its own label use monitoring activities, including: • Literature/website reviews. • Review of media clips. • Internet image searches. • Follow-up on alerts and reports from stakeholders, licensed certifying bodies, and partners. • Periodic visits to retail establishments across the country to review use of program marks on product packaging and in stores. 4.3.1.2. Label Use Enforcement EPA and the licensed certifying bodies are responsible for handling corrective actions for label misuses identified from the monitoring activities described above. The specific instances when EPA and/or the licensed certifying bodies handle corrective action are described in the WaterSense Product Certification System. For any label misuse or violations that come to EPA’s attention, the Agency will notify the licensed certifying body that authorized the use of the WaterSense label for the product in question. The licensed certifying body will then investigate and resolve the complaint in accordance with the WaterSense Product Certification System and the licensed certifying body’s policies and procedures. If no licensed certifying body is associated with the program mark or label used, EPA will follow up with the violating organization directly. Page 104 of 553 WaterSense® Program Guidelines Version 5.5 16 May 2020 In addition, the licensed certifying body retains the right to suspend or withdraw the use of the WaterSense label for any products that it certifies, as described in the WaterSense Product Certification System, if it discovers product nonconformance during ongoing surveillance, improper use of the WaterSense label on products or promotional materials, or infringement of the certification requirements. Unresolved, egregious, or protracted issues will be referred to the EPA Office of General Counsel or the U.S. Department of Justice for resolution. 4.3.2. Homes 4.3.2.1. Label Use Monitoring EPA is responsible for ensuring proper use of the WaterSense label for homes and the builder and verifier promotional labels. EPA has several mechanisms for monitoring label use. EPA reserves the right to conduct oversight of the home certification and labeling process as necessary, which might include but is not limited to: • Review of home certification organization documents. • Accompanying WaterSense home verifiers on site visits. • Re-verification of sites. • Discussions with residents of WaterSense labele d homes. EPA will also monitor use of the builder and verifier promotional labels in accordance with the WaterSense Program Mark Guidelines and determine whether uses of this and other WaterSense promotional labels are appropriate. Specifically, EPA’s Wat erSense promotional label use monitoring activities include: • Literature/website reviews. • Review of media clips. • Internet image searches. • Follow-up on alerts and reports from stakeholders, home certification organizations, and other partners. 4.3.2.2. Label Use Enforcement If, during its label use monitoring activities, EPA discovers a misuse of the WaterSense label or promotional label, EPA will follow up with the offending party in writing or by phone. If EPA discovers nonconformance or certification and labeling issues, it will notify the home certification organization that issued the WaterSense label to coordinate corrective action as described in the WaterSense Home Certification System. Violators will be given time to correct the error(s), depending upon the severity of the violation and the medium in which the violation appeared. EPA reserves the right to suspend or withdraw the WaterSense label from homes that have previously been certified but have not been sold and occupied. The conditions and p rocedures for false claims, nonconformance, label suspension, reinstatement, and withdrawal are described in the WaterSense Home Certification System. EPA also reserves the right to suspend or withdraw a builder’s WaterSense partnership or the rights to use the WaterSense marks based on issues of nonconformity, including misuse of the WaterSense label or other marks. Any builder partner whose partnership agreement or use of the Page 105 of 553 WaterSense® Program Guidelines Version 5.5 17 May 2020 WaterSense program marks has been revoked for any reason must remove any progra m marks from its print and web-based materials. Unresolved, egregious, or protracted issues will be referred to the EPA Office of General Counsel or the U.S. Department of Justice for resolution. 4.3.3. Programs 4.3.3.1. Label Use Monitoring EPA is responsible for ensuring proper use of the WaterSense label for professional certification programs and the promotional label for certified professionals. Note: Certified professionals cannot use the WaterSense label nor the WaterSense partner logo; they can only use the promotional label to promote WaterSense, the program(s) through which they earned their certification(s), and water efficiency in general. EPA routinely monitors use of the WaterSense label, including, but not limited to, the review of professio nal certification program documents. EPA will also monitor use of the promotional label for certified professionals in accordance with the WaterSense Program Mark Guidelines and determine whether uses of this and other WaterSense program marks are appropriate. Specifically, EPA’s WaterSense promotional label use monitoring activities include: • Literature/website reviews. • Review of media clips. • Internet image searches. • Follow-up on alerts and reports from stakeholders, professional certifying organizations, and other partners. 4.3.3.2. Label Use Enforcement For any use violations of the WaterSense label that come to EPA’s attention, the Agency sends a letter to the professional certifying organization asking that improper uses cease immediately. EPA might request proof of such a change within 90 days of the request. If a certification program is disqualified from EPA’s WaterSense program for any reason, the professional certify ing organization must immediately cease to use the label in conjunction with that certification program, and the label must be eliminated from all promotional materials within six months. Unresolved, egregious, or protracted issues will be referred to the EPA Office of General Counsel or the U.S. Department of Justice for resolution. 4.4. Monitoring and Enforcement of Proper Use of Other Program Marks Proper use of the WaterSense program marks (e.g., WaterSense logo, WaterSense partner logo , WaterSense builder and verifier promotional labels) will be monitored and enforced by EPA using the procedures outlined in the WaterSense Program Mark Guidelines and summarized in Table 2. Page 106 of 553 WaterSense® Program Guidelines Version 5.5 18 May 2020 Table 2. WaterSense Non-Label Mark4 Policing and Corrective Action Decision Diagram for Promotional Activities EPA Mechanisms for Identifying Program Mark Misuse • Encourage partners to alert EPA as to mark misuse by other partners. • Annually review partner submittal of sample printed material. • Ask partners to report any mark misrepresentations by non-partners. • Conduct monitoring activities including water efficiency listservs, announcements, and consulting websites. • Review pre-printed materials. • Review current and future partners’ websites. • Conduct Google image searches. • Utilize media tracking services. • Notification from licensed certifying bodies or home certification organizations. 4 Refers to all WaterSense marks with the exception of the WaterSense label for products, programs, and homes. Types of Mark Misuse Certified professional uses program or partner logo Use of WaterSense program logo on websites/printed material Manufacturer/builder associates another program, mark with product instead of label Use of partner logo prior to EPA approval of partnership agreement Mark used to imply EPA endorsement of a company, organization, professional or program Program logo used on specification sheets, product web pages, product advertisements, or other promotions Any use of mark not consistent with the WaterSense Program Mark Guidelines Misuse of the label by a partner or non- partner in promotional materials Resolution for Partners Send email notice to violating organization After 30 days, if not resolved, send second email and place a follow-up call After 60 days, if not resolved, send third email, second call, and certified letter After 90 days, if not resolved, begin partnership agreement termination and notify via certified letter Resolution for Non-Partners Send email notice to violating organization After 30 days, if not resolved, send second email and place a follow-up call After 60 days, if not resolved, send third email, second call, and certified letter After 90 days, if issue not resolved, send second certified letter indicating EPA is initiating legal actions. Forward request for legal action to EPA Office of General Counsel and then the U.S. Department of Justice. Page 107 of 553 WaterSense® Program Guidelines Version 5.5 19 May 2020 5. Partnerships As described earlier, EPA partners with numerous organizations to ensure the success of the WaterSense program. 5.1. Partner Eligibility The following categories reflect the types of organizations that are currently eligible to become WaterSense partners. Promotional Partners: Promotional partners assist EPA in educating others about the value of water, water efficiency, and the WaterSense brand. Organizations are prohibited from earning a profit from the use of WaterSense program tools and materials. To be eligible to become WaterSense partners, organizations must educate or work with consumers or organizations located in the United States and Canada. These partners fall into one or more of the following organization types: • Nonprofit organizations: Examples include environmental organizations, nonprofit professional certifying organizations, homeowners’ associations, homebuilders’ associations, and consumer advocacy groups. • Professional and trade associations: Associations whose members are eligible to join as a WaterSense partner can also join as promotional partners. For example, because water utilities are eligible for partnership, the American Water Works Association, whose membership includes several thousand utilities, is also eligible. Trade associations that promote water-efficient products and practices to commercial and institutional facilities, such as green hotel or restaurant n etworks, are also eligible to partner with WaterSense. • Utilities, water districts, and government agencies: Environmental departments, municipal programs, water agencies, water districts, wholesalers, public utilities, private utilities, energy utilities, wastewater treatment facilities, water boards, and public utility commissions of federal, state, provincial, and local agencies can join. Manufacturers: Upon issuance of specifications for new product categories, EPA will announce a timeline for organizations that produce products in those categories to join as partners. This timeline might be released with the draft or final specification , depending upon the product category. All manufacturing partners must manufacture or brand at least one WaterSense la beled product that will be sold in the United States or Canada within 12 months of execution of a partnership agreement. Manufacturers often produce “private labeled” products that are sold under the brand name of a separate organization. In this case, the organization branding/selling the product (e.g., the private labeler) is treated as a separate manufacturer or retailer/distributor partner/application from the original product manufacturer. Manufacturers of component parts of a labeled product category are not eligible to sign on as WaterSense partners. Retailers/distributors: Upon issuance of specifications for new product categories, EPA will announce a timeline for organizations that sell products in those categories to join as partners. This timeline might be released with the draft or final specification depending on the product category. All retailer and distributor partners must sell, market, and encourage the use of WaterSense labeled products to customers in the United States or Canada within 12 months of execution of a partnership agreement. Partners must sell products without requiring installation or consulting Page 108 of 553 WaterSense® Program Guidelines Version 5.5 20 May 2020 services. Types of eligible organizations include, but are not limited to, home improvement stores, hardware stores, appliance retaile rs and distributors, plumbing supply houses, decorator showrooms/specialty stores, and commercial irrigation distributors. Professional certifying organizations: Organizations that sponsor professional certification programs in the United States or Canada, meet all organizational requirements of the Professional Certification Program Labeling System, and offer programs that meet EPA criteria under an existing WaterSense specification for certification programs. Builders: Home builders that construct or plan to construct homes in accordance with the WaterSense Specification for Homes, promote WaterSense labeled products and WaterSense labeled homes to customers, and provide other support as specified in the certification system can join WaterSense. To be eligible for partnership, the builder must commit to build at least one home that is certified to conform to the WaterSense Specification for Homes within 12 months of execution of the partnership agreement and at least one home in the United States or Canada each year thereafter. Home certification organizations: Organizations with a structure, processes, and procedures in place to conduct the verification, certification , and labeling of homes, consistent with the WaterSense Homes Certification System. The home certification organization must signify their commitment by signing a licensing agreement. Ineligible organizations and entities: In the future, EPA might invite additional types of organizations and entities to partner with the WaterSense program. However, the following organizations and entities are currently ineligible for participation as WaterSense partners and will not be eligible until such time when EPA has established a formal role and/or draft specification (s) that are applicable to these organizations and entities : • Consultants • Home verifiers • Realtors • Commercial, institutional, and industrial facility owners and operators (unless they qualify under another category such as retailers) • Plumbers and plumbing designers • Landscaping professionals • Irrigation professionals In the interim, EPA encourages ineligible stakeholders to sign up to receive the WaterSense Current newsletter, participate in the specification development process, and/or contact the WaterSense Helpline at watersense@epa.gov or (866) WTR-SENS (987-7367) to discuss other ways they would like to collaborate with EPA on water efficiency. 5.2. Partnership Agreements Each organization interested in promoting the WaterSense brand, earning the WaterSense label for its products or homes, working with EPA to promote sales of WaterSense labeled products, and labeling certification programs that promote water efficiency are required to sign a WaterSense partnership agreement with EPA in order to be considered WaterSense partners. Partnership agreements are tailored to each partner type and outline the requirements of participating in the Page 109 of 553 WaterSense® Program Guidelines Version 5.5 21 May 2020 program for each category type. Each organization signing a partnership agreement agrees to uphold the requirements of this document and the WaterSense Program Mark Guidelines. WaterSense partnership agreements include a discussion of the WaterSense program goals, a partner pledge, EPA’s commitment to WaterSense partners, and general terms and disclaimers. The partner pledge varies slightly, depending upon the type of partner. Table 3 briefly describes the differences in expectations for different partner types. Page 110 of 553 WaterSense® Program Guidelines Version 5.5 22 May 2020 Table 3. Partnership Pledge Partnership Pledge: Nonprofit Organizations Utilities & Governments Trade Associations Manufacturers Retailers & Distributors Professional Certifying Organizations Builders Home Certification Organizations Produce product(s), home(s) or program(s). x x x Promote value of water efficiency and the meaning of the WaterSense label. x x x x x x x x Sell and market WaterSense labeled products. x x x Encourage eligible constituents to participate in WaterSense. x x x x x x x x Provide data on shipment or sale of labeled products. x x Provide annual data about water efficiency promotional activities. x x x x x x Provide data on WaterSense labeled products x x x x x Provide data on WaterSense labeled homes and authorized verifiers. x x Provide data on certified professionals. x Train staff on WaterSense program. x x Adhere to WaterSense Program Mark Guidelines. x x x x x x x x Feature WaterSense on website/related promotional materials. x x x x x x x x Update EPA on continued availability of labeled product(s), home(s), or program(s). x x x x Allow EPA to promote partner’s participation in program. x x x x x x x x Page 111 of 553 WaterSense® Program Guidelines Version 5.5 23 May 2020 In addition to partner pledges, WaterSense partnership agreements include the following EPA commitments to partners: • Develop national specifications for water-efficient products/programs. • Increase awareness of water efficiency and the WaterSense brand. • Provide current WaterSense program news. • Provide public recognition to partners. • Respond swiftly to partner requests for information. • Provide materials, templates, and marks for promotional use. • Review WaterSense promotional materials developed by partne rs. • Provide tools for training sales staff on WaterSense labeled products • Provide tools for training WaterSense home verifiers on verification of homes. • Provide guidelines on appropriate use of the WaterSense label and advertisement of WaterSense labeled homes. The following general terms and disclaimers are included in WaterSense partnership agreements: • The partner will not construe, claim, or imply that its participation in the EPA WaterSense program constitutes federal government (EPA) approval, acceptance, or endorsement of anything other than the partner’s commitment to the program. • Nothing in the agreements, in and of themselves, obligates EPA to expend appropriations or enter into any contract, assistance agreement, or interagency agreement or to incur other financial obligations that would be inconsistent with Agency budget priorities. The partner agrees not to submit a claim for compensation for services rendered to EPA or any federal agency in connection with any activities it carries out in furtherance of this agreement. • Manufacturers, retailers, distributors, and professional certifying organizations cannot sign WaterSense partnership agreements with EPA unless there has been a draft specification released for a product they produce/sell or for a relevant professional program. EPA reserves the right to delay partnerships for some categories of products. If additional WaterSense partner categories become available, affected organizations will be required to reapply for partnership in the new category. • The partner will adhere to all requirements contained in this document. • No product, program, home, or other structure will be labeled as a result of signing a partnership agreement. • The partner and the EPA WaterSense program will assume good faith as a general principle for resolving conflict and will seek to resolve all matters informally, so as to preserve maximum public confidence in the program. • Failure to comply with any of the terms of the partnership agreement can result in its termination and cessation of access to the benefits of the program, including use of the WaterSense label or partner logo. • The EPA WaterSense program will actively pursue resolution of noncompliance related to the use of the program marks. • Both parties concur that this agreement is wholly voluntary and can be terminated by either party at any time and for any reason with no penalty. Termination will begin effective immediately upon written notice to or from the EPA WaterSense program. Upon termination from the program, partners agree to remove the WaterSense Page 112 of 553 WaterSense® Program Guidelines Version 5.5 24 May 2020 program marks in a timely manner, consistent with the WaterSense Program Mark Guidelines. 5.3. Recognition EPA recognizes WaterSense partners for their achievements in manufacturing, promoting, buildin g with, and using water-efficient products and practices. By signing a WaterSense partnership agreement, each partner agrees to share information, when appropriate, with EPA and allows the Agency the right to publish its partner status on the WaterSense we bsite. For more in-depth case studies, awards, and other promotions, EPA allows partners to review information before it is made public. EPA’s awards program recognizes WaterSense partners who help advance the overall mission of WaterSense and increase awareness of the WaterSense brand in a measurable way. Application materials, information on eligibility, evaluation criteria, and the schedule for the current award cycle are posted to the WaterSense partner website. A team of EPA staff evaluates applicatio ns submitted by eligible partners according to the criteria described in the application instructions. Specific criteria and point distributions might change from year to year, but broad examples of evaluation criteria include: • Demonstrating measurable results. • Showing creativity and innovation in promoting the program and WaterSense labeled products or homes. • Collaborating WaterSense, partners, and stakeholders on specific campaigns or research. • Furthering WaterSense goals and leveraging the national Wa terSense brand. • Enhancing product labeling efforts. • Achieving effectiveness in outreach designed to educate consumers and organizations about the WaterSense program. EPA holds an annual ceremony to recognize award winners; posts a list of award winners on the WaterSense website; and publicizes award winners in EPA materials, journal articles, newsletters, and other announcements when possible. Winners are allowed to promote their award via press releases and in paid advertisements. WaterSense Partners of the Year, Sustained Excellence Award winners, and Excellence Award winners also receive a special logo to use for promotional purposes. 5.4. Dispute Resolution and Partnership Termination Partners and EPA assume good faith as a general principle for resolving conflicts under the WaterSense program. Both parties endeavor to resolve all matters informally, so as to preserve maximum public confidence in the WaterSense program. In the event that informal channels do not produce a mutually agreeable resolution to a matter in dispute, either party should notify t he other in writing as to the nature of the dispute, the specific corrective action sought, and its intent to terminate the partnership agreement, unless specific corrective actions sought are undertaken. Termination initiated by EPA for failure to meet terms of agreement: Within 20 days of receiving formal notification from EPA indicating intent to terminate the partnership agreement, the partner should reply, agreeing to either (1) undertake in a timely and effective manner the Page 113 of 553 WaterSense® Program Guidelines Version 5.5 25 May 2020 corrective actions sought by EPA or (2) terminate the partnership agreement. If the partner fails to respond within 20 days or fails to undertake the requested corrective actions in a timely manner, the partnership agreement will be terminated. Termination initiated by a partner for failure to meet terms of agreement: Within 20 days of receiving formal notification from the partner indicating its intent to terminate the partnership agreement, EPA will reply either by (1) agreeing to undertake in a timely and effective manner the corrective actions sought by the partner or (2) explaining why such corrective actions cannot be undertaken. Termination for failure to label a product or home within the required timeframe: Within 90 days of receiving notification from EPA indicating intent to terminate the partnership agreement, the partner should reply, agreeing to either (1) undertake in a timely and effective manner the corrective actions sought by EPA or (2) terminate the partnership agreement. If the partner fails to respond within 90 days or fails to undertake the requested corrective actions in a timely manner, the partnership agreement will be terminated. Additional requirements and procedures apply to professional certifying organizations and associated WaterSense labeled programs: Program disqualification: Labeled certification programs can be disqualified from the WaterSense program after presentation and evaluation of credible evidence that the program does not conform to the applicable WaterSense specification. EPA staff will evaluate evidence that supports claims of nonconformance. If there is sound, credible evidence that the program does not conform to the specification, EPA submits a request to the professional certifying organization seeking explanation and satisfactory resolution of the issue. The professional certifying organization has 20 days to successfully resolve the nonconformance issue or refute the claim of nonconformance with sound, credible supporting evidence. If not satisfactorily addressed within that timeframe, the program in question will be disqualified and removed fr om the web registry of WaterSense labeled certification programs. If a certification program is disqualified from EPA’s WaterSense program for any reason, the professional certifying organization, as well all organizations that have adopted the labeled program, must immediately cease to use the label in conjunction with that certification program, and the label must be eliminated from all promotional materials within six months. Such disqualification also might trigger termination of the partnership agreement of the professional certifying organization. Program requalification: Disqualified certification programs can be requalified into the program upon submittal and approval of a new application to label a professional certification program . The application for requalification should be supported with documentation proving that the factors leading to initial disqualification have been remedied. Programs will be requalif ied at EPA’s discretion upon such a successful demonstration. Page 114 of 553 WaterSense® Program Guidelines Version 5.5 26 May 2020 6. Measurement, Data Reporting, and Confidential Business Information 6.1. Program Measurement EPA has developed a series of performance measures for the WaterSense program. EPA focuses on measuring national water and energy savings associated with labeled products as well as ot her program outputs, such as the number of program partners and labeled products. In addition to the savings and output metrics, EPA also tracks changes in awareness and understanding of the WaterSense label; changes in market share for labeled versus non -labeled products, as reported by WaterSense manufacturer partners; and avoided costs on consumer water, wastewater, and energy utility bills. Additionally, the Agency examines customer satisfaction with the WaterSense program and reviews trends in national daily water usage. EPA also assesses program efficiency (e.g., value of earned media/investment in media outreach). 6.2. Data Reporting and Confidential Business Information EPA relies on partners to provide data to enable it to estimate water savings and the associated avoided costs related to WaterSense labeled products and homes. EPA understands that, as part of their participation in this program, partners might provide the Agency with confidential business information (CBI), including product shipment/sales data. Partners can claim such information as CBI under 40 Code of Federal Regulations (CFR) Part 2, Subpart B. CBI is protected from public disclosure according to 40 CFR Part 2, Subpart B. Specifically, WaterSense asks selected partners to submit the following data on an annual basis: • Product data: Manufacturers agree to make data or other marketing indicators available to EPA on an annual basis to assist in estimating the savings associated with WaterSense labeled products, including unit shipm ent data and, where appropriate, aggregate product data. For example, manufacturers might be asked to provide unit shipment data for WaterSense labeled products, total unit shipments for each model in the product line, and number of total unit shipments that are WaterSense labeled. The data is treated as CBI. EPA does not release individual manufacturer data but instead will report aggregated industry-wide data. • Sales data: Retailers and distributors agree to provide data on sales of water -efficient products (e.g., WaterSense labeled and non-WaterSense labeled) or other market indicators to assist in determining the impact of the program in promoting labeled products. The data is treated as CBI. EPA does not release individual retailer or distributor data but instead might report aggregate industry-wide data if desired. • Utility data: WaterSense asks utility and government partners to report data on the results of promotional activities and aggregate data on rebates offered (e.g., number of rebates processed). EPA uses these data to inform future program planning and document water savings associated with rebate programs. • Homes data: WaterSense requires home certification organizations to submit quarterly data on homes labeled, verifiers authorized, and marketing activities undertaken to track the market penetration of the program. • Professional certification data: WaterSense asks professional certifying organization partners to provide quarterly and annual data on the individuals certified by the organization’s labeled program(s). Page 115 of 553 WaterSense® Program Guidelines Version 5.5 27 May 2020 In addition to the above annual data, EPA might also request historical data on product shipments from manufacturers and/or industry experts to assess a baseline of market penetration of water - using products. EPA uses the historical shipments data and reported data from partners to estimate the annual water savings associated with the program, and the Agency will calculate the associated environmental and economic benefits associated with these water savings. EPA also uses these figures to calculate the program’s efficiency. In addition to the above, EPA might also request data on partners’ satisfaction with the program to improve program services. 6.3. Ongoing Product/Program Certification On an ongoing basis, EPA requests that licensed certifying bodies, home certification organizations, and professional certifying organizations update EPA on the status of WaterSense labeled products, homes, and programs, respectively. In particular, EPA requires that the licensed certifying bodies and home certification organizations inform EPA if labeled products or homes lose their certification. For products, this information allows EPA to keep the WaterSense web registry up-to-date. EPA also checks the licensed certifying body websites periodically to ensure that the WaterSense web registry is up to date. As necessary, EPA also requests data from professional certifying organizations to determine the implementation status of WaterSense labeled professional certification programs. 7. Definitions Accreditation body: An authoritative body approved by EPA that performs accreditation of licensed certifying bodies in accordance with the WaterSense Product Certification System. The accreditation body's accreditation conveys formal demonstration that the licensed certifying body is competent to carry out product certification activities in accordance with WaterSense product specifications. Builder/builder partner: For purposes of this program, WaterSense defines a builder as a building company or developer responsible for the design and construction of a home. Builder partners construct homes in accordance with the WaterSense Specification for Homes, promote WaterSense labeled homes to consumers, and provide other support as specified in the WaterSense Home Certification System. See Section 5.1 Partner Eligibility. Certification program/professional certification program: A certification program that requires a combination of experience and testing to verify a professional’s knowledge. Home: A single-family or multi-family residence. (See WaterSense Specification for Homes for details.) Home certification organization: An independent organization approved and licensed by EPA to certify and label homes. Label certificate: A document signed by a home certification organization and home verifier upon certification of a home and given to a builder partner, signifying the home meets the WaterSense Specification for Homes. Page 116 of 553 WaterSense® Program Guidelines Version 5.5 28 May 2020 Label sticker: An optional sticker issued by a home certification organization upon certification of a home and given to a builder partner, signifying the home meets the WaterSense Specification for Homes. Labeling: The act of applying the WaterSense label (see definition below) to products, product packaging, homes, and/or accompanying promotional materials to market a specific product, home, or professional certification program. Licensed certifying body: An independent third party that is licensed by EPA to conduct product certification to demonstrate that a product meets and continues to meet WaterSense's requirements for water efficiency and performance in accordance with the WaterSense Product Certification System and the relevant WaterSense product specification. Licensed certifying bodies also authorize manufacturers of certified products to use the WaterSense label and pr ovide a list of certified products to EPA. Manufacturer: See Section 5.1. Partner Eligibility. Nonconformity: Failure of a WaterSense labeled product, home, or program to conform to the terms of the applicable WaterSense specification. Partner: Any eligible organization that voluntarily signs a partnership agreement with EPA to participate in WaterSense, upon EPA acceptance of the agreement. See Section 5.1. Partner Eligibility. Partnership agreement: The formal agreement between EPA and its WaterSense partners that delineates activities to be conducted by each party and benefits and exclusions. Partners hip agreements are signed by appropriate representatives at EPA and organizations outlined in Section 5.1. Partner Eligibility. Performance criteria: A benchmark by which products are measured for both water ef ficiency and functionality for intended use. Performance criteria might address water use, flow capacity, efficiency, or other product functions and factors. Private labeled product: Any product produced by a manufacturer for labeling under a separate operation/brand from the manufacturer’s operation/brand. Private labeled products are treated as separate from a manufacturer’s products for purposes of partnership agreement signing. A consumer product bears a private label if: • The product or its container is labeled with the brand or trademark of an entity other than a manufacturer of such product. • The entity with whose brand or trademark a product or container is labeled has authorized or caused the product to be so labeled. • The brand or trademark of a manufacturer of the product does not appear on the product or container label. Private labeler: An owner of a brand or trademark on the label of a consumer product for market that might be eligible to meet WaterSense criteria for efficiency and performance and that is private labeled. A private labeler is included as an additional company on a WaterSense certification file or has its own WaterSense certification file (as a multiple listee) that is linked to the manufacturer’s/submitter’s WaterSense certifica tion file. To be included on a WaterSense Page 117 of 553 WaterSense® Program Guidelines Version 5.5 29 May 2020 certification file, a private labeler must have either an EPA -signed manufacturer partnership agreement (manufacturer private labeler) or retailer/distributor partnership agreement (retailer/distributor private labeler) with EPA. Product: Merchandise, ware, or commodity offered for sale. WaterSense plans to consider the following categories of products during the lifetime of the program: commercial and residential plumbing products; commercial and residential irriga tion products (e.g., controllers, sensors); and other mechanical and commercial water-using products and processes. Product Specification: A document describing the water use and product performance attributes of products eligible to earn the WaterSense label, as well as how the attributes should be measured. Professional certified by a WaterSense labeled program (i.e., certified professional): A professional certified by a WaterSense labeled program who has demonstrated expertise in water - efficient technologies and techniques. Promotional partners: Entities that partner with WaterSense to assist EPA in educating others about the value of water, water efficiency, and the WaterSense brand. See Section 5.1. Partner Eligibility. Promotional materials: Brochures, advertisements, fliers, catalogs, circulars, websites, displays, and related materials used to sell products, programs, or homes. Professional certifying organization: An organization that certifies individuals on a professional level. A professional certifying organization’s certification program can earn the WaterSense label if it meets a WaterSense specification for certification programs. Retailer/distributor: See Section 5.1. Partner Eligibility. Product Specifications: A document describing the water use and product performance attributes of products eligible to earn the WaterSense label as well as how the attributes sh ould be measured. WaterSense home verifier (verifier): An individual who is trained and authorized by a home certification organization to verify homes in accordance with the WaterSense Specification for Homes. See Section 2.3. Roles and Responsibilities. WaterSense label: A service mark that contains the words “WaterSense” and “Meets EPA Criteria” in a circular pattern around the EPA WaterSense graphic “water drop” image. In conjunction with a product, the WaterSense label must also include the words “Certified by” and the name of a licensed certifying body underneath the circle. For more information on appropriate usage, refer to the WaterSense Program Mark Guidelines. WaterSense labeled home: A home that has been independently certified via procedures described in the WaterSense Home Certification System and found to meet WaterSense criteria for efficiency and performance, as defined in the WaterSense Specification for Homes. Page 118 of 553 WaterSense® Program Guidelines Version 5.5 30 May 2020 WaterSense labeled product: A product that has been independently certified via procedures described in the WaterSense Product Certification System and found to meet WaterSense criteria for efficiency and performance, as defined in product -specific specifications. WaterSense labeled certification program: A program that has been approved by EPA as meeting the criteria outlined in the WaterSense program specifications. WaterSense label suspension: Temporary invalidation of product certification and subsequent WaterSense labeling as a result of product nonconformity, improper use of the WaterSense label, or infringement of the certification requirements, as described in the WaterSense Product Certification System. The manufacturer is prohibited from identifying as certified or associating the WaterSense label in conjunction with a product for which the WaterSense label has been suspended. WaterSense label withdrawal: Revocation of product certification and use of the WaterSense label as a result of severe or repeated instances of product nonconformance or misuse of the WaterSense label. The manufacturer is prohibited from identifying a product as certified or associating the WaterSense label in conjun ction with a product for which the label has been withdrawn. In addition, once the label is withdrawn, the manufacturer is ineligible for reinstatement of the WaterSense label for the product in question. WaterSense program logo: A logo defined by a combination leaf/water droplet and the words “WaterSense” and “EPA,” used to promote and brand the WaterSense program. For more information on appropriate usage, refer to the WaterSense Program Mark Guidelines. WaterSense partner logo: A logo made up of the WaterSense program logo and the word “Partner,” for use by organizations or individuals that have signed partnership agreements with EPA. For more information on appropriate usage, refer to the WaterSense Program Mark Guidelines. WaterSense promotional label: A promotional mark that encompasses the WaterSense label with a box that includes the words “look for,” “we verify,” or “we build.” For more information on appropriate usage, refer to the WaterSense Program Mark Guidelines. Web listing/registry: A listing of WaterSense labeled products and programs on the EPA website, including name/model numbers of products; certification programs; and links to manufacturers or organizations. Page 119 of 553 WaterSense® Program Guidelines Version 5.5 31 May 2020 Appendix A - America’s Water Infrastructure Act Authorizing Language for the WaterSense Program, America’s Water Infrastructure Act (AWIA) of 2018 (Public Law No: 115-270) SEC. 4306. WATERSENSE. (a) WATERSENSE.—The Energy Policy and Conservation Act (42 U.S.C. 6201 et seq.) is amended by adding after section 324A the following: “SEC. 324B. WATERSENSE PROGRAM. “(a) Establishment Of WaterSense Program .— “(1) IN GENERAL.—There is established within the Environmental Protection Agency a voluntary program, to be known as the WaterSense program, to identify and promote water-efficient products, buildings, landscapes, facilities, processes, and services in order to, through voluntary labeling of, or other forms of communications regarding, such products, buildings, landscapes, facilities, processes, and services while meeting strict performance criteria, sensibly — “(A) reduce water use; “(B) reduce the strain on public water systems, community water systems, and wastewater and stormwater infrastructure; “(C) conserve energy used to pump, heat, transport, and treat water; and “(D) preserve water resources for future generations. “(2) INCLUSIONS.—Categories of products, buildings, landscapes, facilities, processes, and services that may be included under the program include — “(A) irrigation technologies and services; “(B) point-of-use water treatment devices; “(C) plumbing products; “(D) water reuse and recycling technologies; “(E) landscaping and gardening products, including moisture control or water enhancing technologies; “(F) xeriscaping and other landscape conversions that reduce water use; “(G) whole house humidifiers; and “(H) water-efficient buildings or facilities. “(b) Duties.—The Administrator of the Environmental Protection Agency, in coordination with the Secretary of Energy as appropriate, shall— “(1) establish— “(A) a WaterSense label to be used for products, buildings, landscapes, facilities, processes, and services meeting the certification criteria established pursuant to this section; and “(B) the procedure, including the methods and mea ns, and criteria by which products, buildings, landscapes, facilities, processes, and services may be certified to display the WaterSense label; “(2) enhance public awareness regarding the WaterSense label through outreach and public education; “(3) preserve the integrity of the WaterSense label by— “(A) establishing and maintaining feasible performance criteria so that products, buildings, landscapes, facilities, processes, and services certified Page 120 of 553 WaterSense® Program Guidelines Version 5.5 32 May 2020 to display the WaterSense label perform as well or better than less water- efficient counterparts; “(B) overseeing WaterSense certifications made by third parties, which shall be independent third-party product certification bodies accredited by an accreditation entity domiciled in the United States; “(C) using testing protocols, from the appropriate, applicable, and relevant consensus standards, for the purpose of determining compliance with performance criteria; and “(D) auditing the use of the WaterSense label in the marketplace and preventing cases of misuse; “(4) not more frequently than every 6 years after adoption or major revision of any WaterSense performance criteria, review and, if appropriate, revise the performa nce criteria to achieve additional water savings; “(5) in revising any WaterSense criteria— “(A) provide reasonable notice to interested parties and the public of any changes, including effective dates, and an explanation of the changes; “(B) solicit comments from interested parties and the public prior to any changes; “(C) as appropriate, respond to comments submitted by interested parties and the public; and “(D) provide an appropriate transition time prior to the applicable effective date of any changes, taking into account the timing necessary for the manufacture, marketing, training, and distribut ion of the specific product, building, landscape, process, or service category being addressed; and “(6) not later than December 31, 2019, consider for review and revise, if necessary, any WaterSense performance criteria adopted before January 1, 2012. “(c) Transparency.—The Administrator of the Environmental Protection Agency shall, to the extent practicable and not less than annually, estimate and make available to the public the relative water and energy savings attributable to the use of WaterSense -labeled products, buildings, landscapes, facilities, processes, and services. “(d) Distinction Of Authorities.—In setting or maintaining specifications and criteria for Energy Star pursuant to section 324A, and WaterSense under this section, the Secretary of Energy and the Administrator of the Environmental Protection Agency shall coordinate to prevent duplicative or conflicting requirements among the respective programs. “(e) No Warranty.—A WaterSense label shall not create any express or implied warranty. “(f) Methods For Establishing Performance Criteria .—In establishing performance criteria for products, buildings, landscapes, facilities, processes, or services pursuant to this section, the Administrator of the Environmental Protection Agency shall use t echnical specifications and testing protocols established by voluntary consensus standards organizations relevant to specific products, buildings, landscapes, facilities, processes, or services, as appropriate. “(g) Definition Of Feasible.—The term ‘feasible’ means feasible with the use of the best technology, techniques, and other means that the Administrator of the Environmental Page 121 of 553 WaterSense® Program Guidelines Version 5.5 33 May 2020 Protection Agency finds, after examination for efficacy under field conditions and not solely under laboratory conditions, are available (taking cost into consideration).”. (b) Table Of Contents.—The table of contents for the Energy Policy and Conservation Act is amended by adding after the item relating to section 324A the following: “Sec. 324B. WaterSense program.”. Page 122 of 553 Page 123 of 553 OMB Control Number 2040-0272 Partnership Agreement: Promotional Partners Section I: EPA WaterSense® Program Goals EPA’s WaterSense program aims to use water resources more efficiently to preserve them for future generations and to reduce water and wastewater infrastructure costs by reducing unnecessary water consumption. Through this program, EPA provides reliable information on high-performing, water-efficient products and practices, raises awareness about the importance of water efficiency, ensures water-efficient product performance, helps consumers identify products and services that use less water, promotes innovation in product development, and supports state and local water-efficiency efforts. Section II: Partnership Pledge As an EPA WaterSense promotional partner, my organization shares EPA’s goals as outlined above and is proud to commit to the following activities to further these goals: 1.Educate consumers, residents, businesses, and institutions located in the United States and Canada on the value of water efficiency, the importance of saving water, and the meaning of the WaterSense label. Where feasible, under- take activities and events to achieve mutual WaterSense goals. 2.As appropriate, encourage eligible constituents, members, or affiliates to participate as partners in EPA’s WaterSense program. 3.On an annual basis, provide data to EPA on promotional activities and incentive programs to assist in determining the impact of the program in promoting labeled products. 4.For applicable trade associations: If asked, provide aggregate data to EPA on market share of WaterSense labeled products and programs in relevant industry. Compile data submitted by members who are also WaterSense part- ners into a summary report to assist EPA in evaluating market trends and the success of the WaterSense program, without disclosing any proprietary information from members. 5.Adhere to all policies and procedures contained in the Program Guidelines. 6.Feature the WaterSense promotional label and partner logo on website and in other promotional materials. 7.Adhere to WaterSense program mark guidelines and ensure that authorized representatives, such as advertising agencies, distributors, and subcontractors, also comply. Help EPA maintain program integrity by alerting EPA to possible misuse(s) of the WaterSense program marks. 8.Grant EPA’s WaterSense program permission to include partner’s name on a list of participating partners on the WaterSense website, program materials, and announcements. Partners understand that from time to time, EPA will be interested in profiling partner accomplishments in case studies and articles. If selected for such promotion, partners will have the opportunity to provide input and review the final print or Web document before EPA releas- es it to the public. Further, the partner understands that EPA might refer media contacts interested in publicizing water efficiency to partners for information about products and accomplishments. Section III: EPA WaterSense Program’s Commitments to Partners 1. Develop national specifications for water-efficient new homes, products, and programs through an open, public process. 2.Increase awareness of the WaterSense brand by distributing key messages on the benefits of labeled products and programs, and the importance of water efficiency. 3.Provide current EPA WaterSense program news, information, and reference documents (via the program website, WaterSense Helpline, email, or other means), including a listing of labeled products and programs on the website. 4.Provide WaterSense partners with public recognition for their involvement in the program and role in protecting the environment through online listing of partners, special awards, publications, and other efforts. 5.Respond swiftly to partner requests for information or clarification on EPA WaterSense program policies. 6.Provide materials, templates, and program marks for promotional use, consistent with the WaterSense Program Guidelines. 7.Review pre-press promotional items, draft websites, packaging, or other materials that use the WaterSense marks upon request. EPA Form Number 6100-06 Page 124 of 553 Section IV: General Terms and Disclaimers 1. The partner will not construe, claim, or imply that its participation in the EPA WaterSense program constitutes federal gov- ernment (EPA) approval, acceptance, or endorsement of anything other than the partner’s commitment to the program. 2.Nothing in this agreement, in and of itself, obligates the EPA to expend appropriations or to enter into any con- tract, assistance agreement, interagency agreement, or incur other financial obligations that would be inconsistent with Agency budget priorities. The partner agrees not to submit a claim for compensation for services rendered to EPA or any federal agency in connection with any activities it carries out in furtherance of this agreement. 3.The partner and the EPA WaterSense program will assume good faith as a general principle for resolving conflict and will seek to resolve all matters informally, so as to preserve maximum public confidence in the program. 4.No building, facility, or structure will be WaterSense labeled as a result of this agreement. If additional WaterSense part- ner categories become available, affected organizations will be asked to reapply for partnership in the new category. 5.Failure to comply with any of the terms of this partnership agreement can result in its termination and cessation of access to the benefits of the program, including use of the program marks. 6.The EPA WaterSense program will actively pursue resolution of noncompliance related to the use of the program marks. 7.Both parties concur that this agreement is wholly voluntary and may be terminated by either party at any time, and for any reason, with no penalty. Termination will begin effective immediately upon written notice to or from the EPA WaterSense program. Upon termination of this agreement, partners agree to remove program marks in a timely manner, consistent with the WaterSense program mark guidelines. EPA Form Number 6100-06 Page 125 of 553 WaterSense Program Presented By Utilities Deputy Director – Business Solutions and Engineering, Sarah Stone Page 126 of 553 WaterSense Background & Local Partners •EPA Program •Partners with water providers across the nation •Promotes water-efficiency •Local Partners •Denver Water •Aurora Water •Castle Pines •City of Arvada •City of Fort Collins •City of Thornton •City of Westminster •Colorado Springs Utilities Page 127 of 553 Benefits & Requirements •Benefits •No-cost program •Promotional materials •Water efficiency information from other partners •Requirements •Promote knowledge on the value of water •Update EPA on promotional activities •Adhere to WaterSense Program Mark Guidelines •Feature WaterSense brand •EPA promotes Englewood's participationPage 128 of 553 Recommendation •Water Efficiency Plan •Customer education and technical guidance •Fulfills commitment in current plan •Strategic Plan •Sustainability – Water Protection •Infrastructure – Drinking Water Infrastructure Resiliency •City partnership with WaterSense supports these initiatives •Water and Sewer Board recommended City Council approval during its July 11, 2023 meeting Page 129 of 553 Questions?Page 130 of 553 Thank you Page 131 of 553 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Stephanie Carlile DEPARTMENT: City Clerk's Office DATE: August 7, 2023 SUBJECT: CB-36 IGA with Arapahoe County for Coordinated Election Services DESCRIPTION: CB 36 - IGA with Arapahoe County for Coordinated Election Services RECOMMENDATION: Staff recommends Council approve an Ordinance for an Intergovernmental Agreement between the City of Englewood and Arapahoe County for the November 7, 2023 Coordinated Election. PREVIOUS COUNCIL ACTION: The City of Englewood has participated with Arapahoe County in conducting coordinated elections for every City of Englewood General Municipal Election since 1993. SUMMARY: Because of State Legislation and the Taxpayer’s Bill of Rights (TABOR) amendment approved by the voters in 1992, coordinated elections are to be conducted throughout the State by County Clerks. The County has the capability of coordinating this election and including the City of Englewood. The Election Commission has agreed that it is in the best interest of the electors of Englewood to conduct future elections jointly with the other political entities within the County. In order to participate in the 2023 Coordinated Election, the City of Englewood must enter into an Intergovernmental Agreement with Arapahoe County. ANALYSIS: Staff has reviewed the proposed Intergovernmental Agreement Between Arapahoe County Clerk and Recorder and City of Englewood regarding the Conduct and Administration of the November 7, 2023 General Election and concurs with the Commission’s recommendation. COUNCIL ACTION REQUESTED: Approve an Intergovernmental Agreement between the City of Englewood and Arapahoe County for the November 7, 2023 Coordinated Election. FINANCIAL IMPLICATIONS: Since costs are based on several variables, e.g. the number of registered electors in the City of Englewood at the time of the election, the number of entities participating in the election, the financial impact is only an estimate. The County's estimate of our final cost is $ 16,072.09. Page 132 of 553 ATTACHMENTS: Council Bill #36 IGA Cost Estimate IGA Calendar of dates Page 133 of 553 1 ORDINANCE NO. ______ COUNCIL BILL NO. 36 SERIES OF 2023 INTRODUCED BY COUNCIL MEMBER RUSSELL 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 7, 2023. WHEREAS, pursuant to the Uniform Election Code of 1992 (Articles 1 to 13 of Title 1, C.R.S.) as amended, governmental entities are encouraged to cooperate and consolidate elections in order to reduce taxpayer expenses; WHEREAS, the City of Englewood has participated with Arapahoe County in conducting coordinated elections since 1993; WHEREAS, Arapahoe County and the City of Englewood have determined that it is in the best interest of the taxpayers and the electors to conduct a Coordinated Election on November 7, 2023; WHEREAS, the City shall provide the Coordinated Election Official with a copy of the ordinance stating that the City has adopted the exclusive use of Title 1 of the Colorado Election Code and that the City will participate in the Coordinated Election in accordance with the terms and conditions of this Agreement; WHEREAS, the ordinance shall further authorize the Mayor to execute this Agreement; and WHEREAS, Arapahoe County and the City of Englewood desire to set forth their respective responsibilities for the Coordinated Election pursuant to the Intergovernmental Agreement. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section 1. The Intergovernmental Agreement for Coordinated Election is attached hereto as “Exhibit A”. The Intergovernmental Agreement for Coordinated Election is hereby accepted and approved by the Englewood City Council. Section 2. General Provisions Applicable to this Ordinance. The following general provisions and findings are applicable to the interpretation and application of this Ordinance: Page 134 of 553 2 A. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this Ordinance or its application to other persons or circumstances. B. Inconsistent Ordinances. All other Ordinances or portions thereof inconsistent or conflicting with this Ordinance or any portion hereof are hereby repealed to the extent of such inconsistency or conflict. C. Effect of repeal or modification. The repeal or modification of any provision of the Code of the City of Englewood by this Ordinance shall not release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such provision, and each provision shall be treated and held as still remaining in force for the purposes of sustaining any and all proper actions, suits, proceedings, and prosecutions for the enforcement of the penalty, forfeiture, or liability, as well as for the purpose of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in such actions, suits, proceedings, or prosecutions. D. Safety Clauses. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Englewood, that it is promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. This Safety Clause is not intended to affect a Citizen right to challenge this Ordinance through referendum pursuant to City of Englewood Charter 47. E. Publication. Publication of this Ordinance may be in the City’s official newspaper, the City’s official website, or both. Publication shall be effective upon the first publication by either authorized method. F. Actions Authorized to Effectuate this Ordinance. The Mayor is hereby authorized and directed to execute all documents necessary to effectuate the approval authorized by this Ordinance, and the City Clerk is hereby authorized and directed to attest to such execution by the Mayor where necessary. In the absence of the Mayor, the Mayor Pro Tem is hereby authorized to execute the above-referenced documents. The execution of any documents by said officials shall be conclusive evidence of the approval by the City of such documents in accordance with the terms thereof and this Ordinance. City staff is further authorized to take additional actions as may be necessary to implement the provisions of this Ordinance. G. Enforcement. To the extent this ordinance establishes a required or prohibited action punishable by law, unless otherwise specifically provided in Englewood Municipal Code or applicable law, violations shall be subject to the General Penalty provisions contained within EMC § 1-4-1. Page 135 of 553 3 Introduced and passed on first reading on the 17th day of July, 2023; and on second reading, in identical form to the first reading, on the ___ day of ____________, 2023. Othoniel Sierra, 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 an Ordinance, introduced and passed in identical form on first and second reading on the dates indicated above; and published two days after each passage on the City’s official website for at least thirty (30) days thereafter. The Ordinance shall become effective thirty (30) days after first publication on the City’s official website. Stephanie Carlile Page 136 of 553 Contract Number City Contact Information: Staff Contact Person Phone Title Email Summary of Terms: Original Contract Amount Start Date 8/7/2023 Amendment Amount End Date 12/31/2023 Amended Contract Amount Total Term in Years 0.40 Vendor Contact Information: Name Contact Address Phone Email Littleton CO City State Zip Code Contract Type: Please select from the drop down list Description of Contract Work/Services Procurement Justification of Contract Work/Services CONTRACT APPROVAL SUMMARY Arapahoe County Elections Division 5334 S Prince St IGA-Intergovernmental Agreement $ 16,072 $ - $ 16,072 303-762-2405Stephanie Carlile scarlile@englewoodco.govCity Clerk Renewal options available None Coordinated Election Services The City of Englewood has participated with Arapahoe County in conducting coordinated elections for every City of Englewood General Municipal Election since 1993. 80110 Payment or Revenue terms (please describe terms or attached schedule if based on deliverables) 303-738-8093 wmast@arapahoegov.com Bill Mast - Deputy Director of Elections Payment due upon completion of November 7, 2023 election. Page 137 of 553 CONTRACT APPROVAL SUMMARY Source of Funds: Revenue CAPITAL ONLY A B C 1=A-B-C Capital Tyler New World Spent To Contract Budget Operating Year Project # / Task #Fund Division Account Line Item Description Contract Title Budget Date Amount Remaining C -$ -$ -$ -$ C -$ -$ -$ -$ O 23 02 0602 54102 35,000$ -$ 16,072$ 18,928$ O -$ -$ -$ -$ O -$ -$ -$ -$ Total Current Year 35,000$ -$ 16,072$ 18,928$ C -$ -$ -$ -$ C -$ -$ -$ -$ O -$ -$ -$ -$ O -$ -$ -$ -$ O -$ -$ -$ -$ Total - Year Two -$ -$ -$ -$ GRAND TOTAL 35,000$ -$ 16,072$ 18,928$ Process for Choosing Contractor: Solicitation Name and Number Attachment (For Capital Items Only / Expense Line Item Detail is Located in OpenGov): All Other Attachments: NOTES/COMMENTS (if needed): For Operating Line Item Detail, please review information provided in Tyler New World For Capital Items, please review Prior Month's Project Status and Fund Balance Report Election General Ledger Account String Solicitation:Evaluation Summary/Bid Tabulation Attached Proposal/Bid Attached Prior Month-End Project Status and Fund Balance Report Evaluation Summary/Bid Tabulation AttachedEvaluation Summary/Bid Tabulation AttachedEvaluation Summary/Bid Tabulation AttachedContract Copy of Original Contract if this is an Amendment Copies of Related Contracts/Conveyances/Documents Addendum(s) Exhibit(s) Certificate of Insurance Page 138 of 553 Arapahoe County Elections IGA Page 1    INTERGOVERNMENTAL AGREEMENT      BETWEEN      ARAPAHOE COUNTY CLERK AND RECORDER      AND    CITY OF ENGLEWOOD    REGARDING THE CONDUCT AND ADMINISTRATION OF THE    NOVEMBER 7, 2023    COORDINATED ELECTION               PREPARED BY:    ARAPAHOE COUNTY CLERK AND RECORDER’S OFFICE    ELECTIONS DIVISION    5334 S. PRINCE STREET    LITTLETON, COLORADO 80120    303‐795‐4511  Page 139 of 553 Arapahoe County Elections IGA Page 2    THIS AGREEMENT is made by and between the Board of County Commissioners of the County of  Arapahoe, State of Colorado, on behalf of the Arapahoe County Clerk and Recorder (hereinafter referred  to as the "County") and City of Englewood (hereinafter referred to as the “Jurisdiction") (hereinafter  collectively referred to as the “Parties”); and    WHEREAS, pursuant to the Uniform Election Code of 1992 (Articles 1 to 13 of Title 1, C.R.S.) as  amended, governmental entities are encouraged to cooperate and consolidate elections in order to  reduce taxpayer expenses; and  WHEREAS, pursuant to section 1‐7‐116, C.R.S. if more than one jurisdiction holds an election on  the same day in November and the eligible electors for each such election are the same or the  boundaries overlap, the County Clerk and Recorder is the coordinated election official and, pursuant to  section 1–5–401, C.R.S. shall conduct the elections on behalf of all jurisdictions whose elections are part  of the coordinated election utilizing the mail ballot procedures set forth in article 7.5 of title 1; and  WHEREAS, the County and Jurisdiction have determined that section 1‐7‐116, C.R.S. applies and  it is in the best interest of the taxpayers and the electors to enter into this Agreement to conduct a  Coordinated Election on November 7, 2023; and  WHEREAS, such agreements are authorized by State law.  WHEREAS, the County and the Jurisdiction have a history of successful coordinated elections  and have therewith established certain practices and procedures to preserve the integrity of the  election process; and    WHEREAS, the Parties understand and agree that conducting coordinated elections   subjects all Parties participating in the process to the strictures of Article XXIX of the Colorado  Constitution pertaining to Ethics in Government, including that all Parties must: hold the respect and  confidence of the people; carry out their duties for the benefit of the people; and avoid conduct that is  in violation of their public trust or that creates a justifiable impression in the public that such trust is  being violated.    NOW, THEREFORE, for and in consideration of the promises herein contained, the sufficiency of  which is hereby acknowledged, the Parties hereto agree as follows:  This election shall be conducted as a Coordinated Election in accordance with the Uniform Election Code  of 1992 (Articles 1‐13 of Title 1, C.R.S.).  The election participants will execute agreements with  Arapahoe County for this purpose and may include municipalities, school districts, and special districts  within the Arapahoe County limits and the State of Colorado.  The Arapahoe County Clerk and Recorder shall be designated as the Coordinated Election Official  (hereinafter “CEO”) and the Jurisdiction hereby identifies Stephanie Carlile as its Designated Election  Official (hereafter “DEO).  FURTHER, the Parties agree as follows:  Page 140 of 553 Arapahoe County Elections IGA Page 3    SECTION I.  PURPOSE AND GENERAL MATTERS  1.01 DEFINITIONS.  A. “Address Library Report” means the address report from the Secretary of State voter registration  system that defines street addresses and precincts within the jurisdiction.  B. “Coordinated Election Official” (hereinafter “CEO”) shall mean the County Clerk and Recorder who  shall act as the “coordinated election official,” as defined within the Code and Rules and, as such,  shall conduct the election for the Jurisdiction for all matters in the Code and the Rules which require  action by the CEO.  C. "Colorado Election Code" or “Code” means any part of the Uniform Election Code of 1992, (Articles 1‐ 13 of Title 1, C.R.S.) or any other Title of C.R.S governing participating Jurisdiction's election matters,  as well as the Colorado Constitution, and the State of Colorado Secretary of State (SOS) Rules.  D. “Coordinated Election" means an election where more than one jurisdiction with overlapping  boundaries or the same electors holds an election on the same day and the eligible electors are all  registered electors, and the County Clerk is the Coordinated Election Official for the jurisdictions.  E.  “Contact Officer” means the individual who shall act as the primary liaison or contact between the  Jurisdiction and the County Clerk.  The Contact Officer shall be that person under the authority of  the County Clerk who will have primary responsibility for the coordination of the election for the  Jurisdiction and the procedures to be completed by the County Clerk hereunder.  F. “Designated Election Official" (hereinafter “DEO”) means the individual who shall be identified by the  Jurisdiction to act as the primary liaison between the Jurisdiction and the Contact Officer and who  will have primary responsibility for the conduct of election procedures to be handled by the  Jurisdiction hereunder.  To the extent that the Code requires that an Election Official of the  Jurisdiction conduct a task, the DEO shall conduct same.  G.  “IGA” or “Agreement” means this Intergovernmental Agreement between the County and the  Jurisdiction for election coordination.  H. “Jurisdiction” means a political subdivision as defined in § 1‐7.5‐103(6), C.R.S. and referenced in the  Code and, in this Agreement, is interpreted to refer to the City of Englewood.  I.   “Logic and Accuracy Test” means a test of all electronic and electromagnetic voting equipment to  test mail, provisional and audio ballots, in accordance with § 1‐7‐509, C.R.S. by processing a  preaudited group of ballots.   J.  “Mail Ballot Packet” means the packet of information provided by the CEO to eligible electors in the  mail ballot election. The packet includes the ballot, instructions for completing the ballot, and a  return envelope. § 1‐7.5‐103(5), C.R.S.    Page 141 of 553 Arapahoe County Elections IGA Page 4    K. “Post Election Audit” means such audit as set forth substantially in the Colorado Election Code.  L.  “Precinct” means an area with established boundaries within a political jurisdiction used to establish  election districts.  M. “Proposed Jurisdiction” means a jurisdiction which may be formed pursuant to this election which is  not yet identified by a tax authority code in the County Assessor database. When the context of this  Agreement so requires, a Proposed Jurisdiction will simply be referred to as a Jurisdiction.  N.  “SOS” means the Colorado Secretary of State.  O. “Election Calendar” means the “2023 Coordinated Election – Abridged Calendar Key Dates for  Coordinating Jurisdictions,” attached hereto as Attachment B, which is based upon and incorporates  the most recent election calendar as published on the SOS website located at www.sos.state.co.us.  P. “TABOR” means a ballot issue that is governed by article X, § 20 of the Colorado Constitution.   Q.  “UOCAVA voters” means military personnel and overseas civilians who are registered to vote and  receive services under the Uniformed and Overseas Citizens Absentee Voting Act of 1986 and the  Military and Overseas Voter Empowerment Act of 2009.  1.02 JURISDICTIONAL LIMITATION.  A. The Jurisdiction encompasses territory within Arapahoe County.  This Agreement shall be construed  to apply only to that portion of the Jurisdiction within Arapahoe County.  SECTION II.  COUNTY/JURISDICTION RESPONSIBILITIES  2.01 JOINT RESPONSIBILITIES.  Nothing herein shall be deemed or construed to relieve the County or the Jurisdiction from their official  responsibilities for the conduct of the election as generally set forth in the Colorado Election Code.   All parties shall:   A. Familiarize themselves and adhere to all applicable provisions and timelines of the Colorado Election  Code while performing their official responsibilities for the conduct of the election, unless superseded  by other legal authority.  B. Enforce all applicable provisions of the Fair Campaign Practices Act.  C. Review and execute this IGA with all required signatures on or before the deadline set forth in § 1‐7‐ 116(2), C.R.S.  D. Confirm they have sufficient funds available and appropriated in an approved budget to pay their  expenses for this election.  Page 142 of 553 Arapahoe County Elections IGA Page 5    E.  All parties shall remain cognizant of their obligations under article XXIX of the Colorado  Constitution at all times during the election process, from the signing of this IGA to final certification  of election results to the SOS.  2.02 COUNTY RESPONSIBILITIES.  The County shall perform the following duties:  A. Designate a Contact Officer to provide assistance and information to the DEO of the Jurisdiction on  matters relating to the conduct of this election. Such information shall not include legal advice.  B. Maintain voter records and an address library for Arapahoe County voters within the Colorado SCORE  voter registration database. Comply with Colorado SOS and Arapahoe County cyber‐security  recommendations to protect confidential voter information.   C. Send a certified list of registered voters to the Jurisdiction via secure online method if requested by  the DEO of the Jurisdiction.  D. In order to identify which addresses are eligible to receive and vote on the Jurisdiction’s ballot  question, the County shall perform the following duties for the Address Library:   a. Use the Colorado SCORE voter registration database to produce an Address Library Report that  indicates residential street ranges included within the boundaries of the Jurisdiction.  b. Provide the Jurisdiction with the Address Library Report in an electronic format, along with an  Acknowledgement Form that the Jurisdiction should use to confirm the accuracy of the ranges,  the accuracy of the map of the Jurisdiction’s boundaries as found on ArapaMAP or note any  errors, omissions, and/or corrections.   c. Verify any errors, omissions, and/or corrections identified by the Jurisdiction against County  Assessor data, and where appropriate, modify street ranges to accurately define the eligible  electors within the Jurisdiction.  E. Receive certified ballot content from the Jurisdiction in electronic format. Layout the text of the  official ballot using the certified content without any modifications or formatting changes. Provide an  electronic proof of the ballot to the Jurisdiction’s DEO via email for written approval prior to final  production. Post a sample ballot to www.arapahoevotes.gov .  a. Pursuant to § 1‐5‐905, C.R.S., and SOS Rule 4.1.2, the County is required to provide in‐person and  sample ballot translations for all ballot content in Spanish in Coordinated Elections using a  translator subject to the requirements of the Code and SOS Rules 4.8.8 and 4.8.9.   b. The County will be responsible for obtaining a Spanish translation of the Jurisdiction’s ballot  content from the County’s certified translation vendor. Cost of Spanish translation will be included  in shared election cost calculations.   Page 143 of 553 Arapahoe County Elections IGA Page 6    c. To the extent that the Jurisdiction includes territory in more than one county, the County will  coordinate with the Jurisdiction and the other county or counties to determine responsibility for  obtaining a Spanish translation so that only one translation is completed for each ballot issue or  question and that the same translated version is used by each county.  F. Determine the number and letter of each ballot issue and question for the Jurisdiction and any other  coordinating jurisdictions participating in the election, in accordance with SOS Rule 4.5.2:   a. If the Jurisdiction is entirely contained within Arapahoe County, the County has authority to set  the ballot measure order and number.  b. If the Jurisdiction includes territory in more than one county, the County will coordinate with the  other applicable counties for purpose of determining the controlling county and agreeing upon  ballot measure numbers for shared issues and questions.  G. Conduct a Logic and Accuracy Test in accordance with § 1‐7‐509, C.R.S. Invite the Jurisdiction to  participate along with the Testing Board to verify the accuracy of electronic vote tabulation equipment.  Post a public notice of the Test seven (7) days in advance.   H. Provide a candidate hotline at 303‐734‐5365, which every candidate running for office in the  Jurisdiction (if applicable) shall call to provide the phonetic pronunciation of their name as it appears on  their Statement of Intent, title of the office, and Jurisdiction for which they are running.   I. Prepare an accessible audio ballot for the electronic ballot marking devices to be made available to  voters upon request at any Voter Service and Polling Center.  J. Contract with a vendor acceptable to the SOS to print and send Mail Ballot Packets to every active  registered voter and transmit ballots electronically to every active registered UOCAVA voter.  K. Publish and post the required legal notice of election pursuant to § 1‐5‐205(1), C.R.S., for the  Jurisdiction’s ballot issues, ballot questions, and/or candidates.  L. If the Jurisdiction’s election includes a TABOR issue, the County shall perform the following duties  relative to the TABOR Notice:  a. Provide a Microsoft Word document template for the TABOR Notice to the Jurisdiction with  instructions to submit its certified ballot language, pro/con statements and financial summary for  each ballot question or issue governed by TABOR by the deadline listed in Attachment B.   b. Prepare the TABOR Notice using the certified content provided by the Jurisdiction, without revision.   c. Contract with a printing vendor to produce and mail one copy of the TABOR Notice to every  household where an active registered voter of the Jurisdiction resides at the least cost possible in the  time frame as required by law. If the Jurisdiction is a special district, the TABOR Notice also will be  mailed to every eligible property owner who is not already a registered voter in Arapahoe County.  The County may send the TABOR Notice to persons other than electors of the Jurisdiction in an effort  to mail the TABOR Notice package at the “least cost.”  Page 144 of 553 Arapahoe County Elections IGA Page 7    d. Post the TABOR Notice on www.arapahoevotes.gov.   e. Keep a careful and accurate accounting of time, supplies, printing costs and salaries attributable to  the County’s TABOR Notice services for the Jurisdiction.  The Jurisdiction’s proportional share of  actual costs shall be based on the County’s total expenditures relative to the TABOR Notice.  M. Hire, instruct and oversee election judges and temporary workers necessary for the conduct of the  election.   N. Establish and maintain mail ballot 24‐hour drop‐boxes, and designate and operate Voter Service and  Polling Centers as required by the Code.  O. Provide trained personnel to pick up sealed ballot containers containing voted ballots from every  Voter Service and Polling Center and 24‐hour drop‐box each business day. Provide a replacement sealed  empty ballot container(s), except if the location is a stand‐alone 24‐hour drop‐box.  P. Provide the necessary equipment, the adequately trained personnel, and the secure facility, and  conduct and oversee the process to receive, verify voter signatures, open, tabulate and store ballots.  Q. Maintain a record of every eligible voter’s registration and every ballot sent, received, voided and  cast using the Colorado SCORE voter registration and election management system. A SCORE download  providing an update on every eligible voter’s registration and ballot status will be posted on  www.arapahoevotes.gov  daily during the voting period. No person will be given preferential treatment  regarding the receipt of updated SCORE information, except that the Clerk’s Office may respond to  lawful records requests made pursuant to the Colorado Open Records Act.     R. Send letters to voters whose mail ballot envelopes are missing a signature, missing identification or  have a signature discrepancy, and provide instructions and an affidavit to cure this issue within eight (8)  days of Election Day for the ballot to be counted. Conduct the process to receive and verify voter  affidavits and where appropriate, cure and count these ballots.   S. Maintain the following reports for all Arapahoe County eligible voters, and publish a public version  (excluding confidential voters) on www.arapahoevotes.gov :     a. A registered voter list, including the names of eligible electors;  b. A turnout list, including the names of eligible electors, precinct number, date mail ballot was sent,  and date ballot was issued at a Voter Service and Polling Center.   T. Accept public inquiries by phone at 303‐795‐4511 and by email at elections@arapahoegov.com.  Respond to all correspondence and calls within the County’s expertise relating to election procedures.   Refer members of the public and news media to the DEO for any matters pertaining to the Jurisdiction’s  race, questions, measures or operations.  U. Post unofficial election results by ballot question after the polls close on Election Night at  www.arapahoevotes.gov , and regularly update the unofficial results as more eligible ballots are  counted. Election results will not be shared before the online posting.  Page 145 of 553 Arapahoe County Elections IGA Page 8    V. Conduct a recount of the ballots cast if required by law or if requested by the Jurisdiction pursuant to  state law. In either scenario, the cost of the recount will be charged to the Jurisdiction. If more than one  Jurisdiction is involved in the recount, the cost will be pro‐rated among the participating Jurisdictions  equally.  W. Prepare and run the required Post Election Risk Limiting Audit in accordance with the Code before  certifying election results.  X. Appoint a Canvass Board and conduct a canvass of the votes in order to certify the results of the  Jurisdiction's election pursuant to § 1‐10‐101, C.R.S. Provide the Jurisdiction with a copy of all election  statements and certificates which are to be created under the Code.  Y. Keep a careful and accurate accounting of time, supplies, printing costs and salaries attributable to  the County’s administration of the election.    Z. Submit to the Jurisdiction a good faith preliminary cost estimate at the time of this Agreement, an  updated cost estimate after the deadline for ballot content to be submitted has passed pursuant to  state law, and an itemized invoice for all expenses incurred under this Agreement post‐election.   a. The County allocates costs using a Weighted Population Average, which reflects the proportionate  number of active registered voters in each Jurisdiction on Election Day compared to the sum of all  active registered voters in all coordinating jurisdictions for that election (including the County  itself).  b. The total shared costs attributable to the County’s administration of the election are multiplied by  the Weighted Population Average to determine the Jurisdiction’s allocation based on this formula.   The final invoice detailing the Jurisdiction’s portion of shared election costs will reflect actual cost  totals as well as any changes in the total number of coordinating jurisdictions participating in the  election and any increases in active voter count between the cost estimates and Election Day.  AA. Store all election records as required by the Code for 25 months in such a manner that they may be  accessed by the Jurisdiction, if necessary, to resolve any challenges or other legal questions that might  arise regarding the election.  2.03 JURISDICTION RESPONSIBILITIES.  The Jurisdiction shall perform the following duties:  A. Identify a Designated Election Official to act as liaison between the Jurisdiction and the County.  B. Notify the County prior to executing this IGA if the Jurisdiction’s boundaries include property in any  other county.  C. Review the Address Library Report provided by the County, which determines which residential  addresses are within the jurisdiction. View the street ranges in a map format at:   http://gis.arapahoegov.com/ArapaMAP/. Confirm the street ranges and/or map are correct and identify  any errors, omissions or deletions if necessary. Provide the County with certification of any annexations,  Page 146 of 553 Arapahoe County Elections IGA Page 9    inclusions, and/or exclusions to the Jurisdiction, including all supporting documents. Return via email a  signed copy of the provided Acknowledgement Form to the County, including any corrections if  necessary, by the date set forth in Attachment B.    a. If the Jurisdiction is a Proposed Jurisdiction not already identified by a tax authority code in the  County Assessor’s records, the Jurisdiction shall provide the County with a certified legal  description, map, and a list of street ranges for all streets within the Proposed Jurisdiction on or  before eighty (80) days prior to Election Day.  If residential addresses are not available, provide a  list of the land parcel numbers that are within the boundaries of the Proposed Jurisdiction.  D. For elections where owning property in the Jurisdiction is a requirement for voting in the election,  the Jurisdiction must perform the following tasks relating to the property owners list:  a. Coordinate directly with the Arapahoe County Assessor’s Office to order and pay for an initial and  a supplemental certified list of all recorded owners of taxable real and personal property within  the Jurisdiction’s boundaries in Arapahoe County, in accordance with § 1‐5‐304, C.R.S. and by the  deadlines in Attachment B.   b. Contact Minerva Padron at the Colorado SOS’s Office to receive access to DEO SCORE lookup.  (Minerva Padron, 855‐428‐3555 ext. 6332, minerva.padron@sos.state.co.us).  c. Using the list from the Assessor’s Office:   i. Remove from the list non‐person entities and persons not living in the State of Colorado.   ii. Look up the remaining names using the SOS SCORE look‐up tool to determine if each  person is a registered voter. Remove from the list those individuals who are not registered  to vote.  iii. Remove from the list persons who reside in the district, as they will already receive a mail  ballot.   iv. Deliver to the County via email an initial and a supplemental list of property owners who  are property owners in the district, registered to vote in the state of Colorado, and not  physically residing in the district. Each list should be delivered by the deadline indicated in  Attachment B. The list should be a Microsoft Excel spreadsheet and must contain no more  than one (1) eligible elector’s name per line.  Each line must consist of the following  separated fields: eligible elector’s voter identification number, last name, first name,  middle name, mailing address, city, state, zip, parcel number, and phone number, if  available.  E. Directly manage the responsibilities defined in § 1‐4‐901 to 912, C.R.S. for all candidate petitions for  all local election races held by the Jurisdiction, including but not limited to: reviewing the petition  format, receiving petitions that are filed, verifying voter validity, determining sufficiency, notifying  candidates of sufficiency, responding to protest filings, and cures if applicable.  Page 147 of 553 Arapahoe County Elections IGA Page 10    F. Determine the title and text of the Jurisdiction’s ballot races, measures and/or issues using plain, non‐ technical language, worded with simplicity and clarity. Determine the order of candidates in each race  by lot drawing, or if applicable, city/town charter.  G. Defer to the County to determine the number and letter of each ballot issue and question, as  outlined in Section 2.02. Abstain from communicating or publicizing a ballot issue or question in  conjunction with a letter or number before it has been officially determined by the County on the date  of ballot content certification under the Code.    H. Submit the Jurisdiction’s certified ballot content, verbatim, as it should appear on the ballot for the  Jurisdiction’s races, questions and issues to the County. Submit the ballot content via email to Corene  Henage at chenage@arapahoegov.com on or before the deadline as set forth within Attachment B.  Format the ballot content in a Microsoft Word document in plain text; do not include bold, italic,  underline, bullets, tables, strikethrough or indentation. Titles should indicate whether the question is a  referred measure or an initiative from a citizen petition.  TABOR issues must be in all caps. All other  measures and races must be mixed case. (Ballot content submitted to the County after the deadline will  not appear on the ballot.)    I. Within one business day of receipt from the County, proofread the layout and the text of the  Jurisdiction’s portion of the official ballots and provide written notice of acceptance to the County via  email to Corene Henage at chenage@arapahoegov.com.  J. If the Jurisdiction’s election includes a race, contact all candidates on the ballot and ask them to call  the County’s candidate hotline at 303‐734‐5365 by the deadline indicated in Attachment B and record a  voicemail with the phonetic pronunciation of their name, the title of the race and jurisdiction for which  they are running.   K.  If the Jurisdiction’s election includes a TABOR issue, the Jurisdiction shall perform the following duties  relative to the TABOR Notice by the relevant deadlines indicated in Attachment B:  a. Receive petition representative’s written summary of comments relating to ballot issues/ballot  questions. Receive and compile community members’ written summary of pro/con statements  relating to ballot issues/ballot questions.   b. Prepare a financial summary for each ballot question or issue.  c. Prepare a Microsoft Word document using the template provided by the County for the TABOR  Notice with the final and exact text of its certified ballot language, pro/con statements and financial  summary for each ballot question or issue governed by TABOR by the deadline in Attachment B,  delivered to Briana Kacinski at bkacinski@arapahoegov.com.     d. Defend and resolve, at the Jurisdiction’s sole expense, all challenges related to the candidates,  ballot issues and/or ballot questions, or to the TABOR Notice if applicable, as certified to the  County.  Page 148 of 553 Arapahoe County Elections IGA Page 11    L. Publish and post any required legal notices for the Jurisdiction’s candidates, ballot issues and/or ballot  questions, other than the notice published by the County in conformance with § 1‐5‐205, C.R.S.  A copy  of such published legal notice shall be submitted to the County for its records.  M. Respond to all correspondence and calls for any matters pertaining to the Jurisdiction’s race,  question or measures or operations. Refer members of the public and news media to the County for any  matters outside of the DEO’s expertise relating to election procedures.   N. Notify the CEO by the statutory deadline whether a recount is required or desired.  The Jurisdiction  shall reimburse the County for the full cost of the recount. If other Jurisdictions are included in the  recount, the cost of the recount will be prorated among the participating Jurisdictions as per § 1‐10.5‐ 101, C.R.S.  O. Remit to the County the total payment for the Jurisdiction’s prorated share of costs for the printing  and mailing of ballots, TABOR Notice (if required), any additional or unique election costs resulting from  Jurisdiction delays and/or special preparations or cancellations, and all other election expenses within  sixty (60) days from the date of receipt of an invoice from the County.   SECTION III.  CANCELLATION OF ELECTIONS  3.01 CANCELLATION OF ELECTION BY THE JURISDICTION.  In the event that the Jurisdiction resolves not to hold the election, notice of such resolution shall be  provided to the CEO immediately.  The Jurisdiction shall be liable for the full actual costs of the activities  of the CEO relating to the election incurred before receipt of such notice and activities of the CEO  relating to cancelling the election after the receipt of such notice.  The Jurisdiction shall provide and post  notice by publication as defined in the Code.  In the event that the Jurisdiction resolves not to hold the  election after the last day for the DEO to certify the ballot order and content to the CEO (see  Attachment B), the text provided by the Jurisdiction cannot be removed from the ballot and/or the  Ballot Issue notice (TABOR Notice).  SECTION IV.   MISCELLANEOUS  4.01 NOTICES.  Any and all notices required to be given by this Agreement are deemed to have been received and to be  effective: (1) three days after they have been mailed by certified mail, return receipt requested; (2)  immediately upon hand delivery; or (3) immediately upon receipt of confirmation that an email or fax  was received; to the address of a Party as set forth below or to such Party or addresses as may hereafter  be designated in writing:    To County:  Joan Lopez    Arapahoe County Clerk and Recorder’s Office  Page 149 of 553 Arapahoe County Elections IGA Page 12      Elections Division    5334 S. Prince St.    Littleton, Colorado 80120    Fax: (303) 794‐4625  Email: jlopez@arapahoegov.com      To Jurisdiction:  Stephanie Carlile    Designated Election Official    1000 Englewood Parkway    Englewood CO 80110    Email: scarlile@englewoodco.gov    Phone: 303‐762‐2405     4.02 TERM OF AGREEMENT.  The term of this Agreement shall continue until all statutory requirements concerning the conduct of  the election and the creation, printing, and distribution of the TABOR Notice, if needed, are fulfilled.  4.03 AMENDMENT.  This Agreement may be amended only in writing, and following the same formality as the execution of  the initial Agreement.  4.04 INTEGRATION.  The Parties acknowledge that this Agreement constitutes the sole and entire Agreement between them  relating to the subject matter hereof and that no Party is relying upon any oral representation made by  another Party or employee, agent or officer of that Party.    4.05 CONFLICT OF LAW.  In the event that any provision in this Agreement conflicts with the Code or other statute, this  Agreement shall be modified to conform to such law.     4.06 TIME OF ESSENCE.  Time is of the essence for this Agreement.  The time requirements of the Code shall apply to completion  of the tasks required by this Agreement. Failure to comply with the terms of this Agreement and/or the  deadlines in Attachment B or the Code may result in consequences up to and including termination of  this Agreement.    4.07 GOOD FAITH.  Page 150 of 553 Arapahoe County Elections IGA Page 13    The parties shall implement this Agreement in good faith, including acting in good faith in all matters  that require joint or general action.  4.08 NO WAIVER OF GOVERNMENTAL IMMUNITY ACT.  The Parties understand and agree that the County, its commissioners, officials, officers, directors,  agents, and employees, are relying on, and do not waive or intend to waive by any provisions of this  Agreement, the monetary limitations or any other rights, immunities, protections or defenses provided  by the Colorado Governmental Immunity Act (the “CGIA”), §§ 24‐10‐101 to 120, C.R.S., or otherwise  available to the County or the Jurisdiction.  To the extent the CGIA imposes varying obligations or  contains different waivers for cities and counties, both the Jurisdiction and the County agree that they  will remain liable for their independent obligations under the CGIA, and neither party shall be the agent  of the other or liable for the obligations of the other.  4.09 NO THIRD PARTY BENEFICIARIES.  The enforcement of the terms and conditions of this Agreement and all rights of action relating to such  enforcement shall be strictly reserved to the County and the Jurisdiction, and nothing contained in this  Agreement shall give or allow any such claim or right of action by any other or third person under such  Agreement.  4.10 GOVERNING LAW: JURISDICTION AND VENUE.  Unless otherwise agreed in writing, this Agreement and the interpretation thereof shall be governed by  the laws of the State of Colorado. Venue for any and all legal actions arising under this IGA shall lie in the  District Court in and for the County of Arapahoe, State of Colorado.  4.11 SEVERABILITY.  Should any provision of this Agreement be determined by a court of competent jurisdiction to be  unconstitutional or otherwise null and void, it is the intent of the parties hereto that the remaining  provisions of this Agreement shall be of full force and effect.  4.12 ATTACHMENTS.  The following attachments are incorporated herein by this reference.  Attachment A – 2023 Preliminary Cost Estimate  Attachment B – Key Dates for Coordinating Jurisdictions (subject to updates)    END OF PAGE  Page 151 of 553 Arapahoe County Elections IGA Page 14    Arapahoe County    _______________________________________      _____________________  Joan Lopez, Coordinated Election Official    Date  Clerk and Recorder          _______________________________________      _____________________  Stephanie Carlile,City Clerk     Date  Designated Election Official       Page 152 of 553 Jurisdiction's Share of Total Election Costs Based On: Total Jurisdiction Active Registered Voters 22,696 ÷ Sum of Active Registered Voters for all Coordinating Entities 1,187,579 = Weighted Population Average (WPA)0.019111 Election Expenses for Coordinated Election Total Cost County Staff Permanent staff overtime compensation (after 9/09/2023) 20,000.00$ Temporary election staff compensation (after 9/09/2023) 10,000.00$ Total 30,000.00$ Election Judges Election Judge training materials 5,000.00$ Election Judge compensation (VSPCs & ballot processing) 145,000.00$ Election Judge communications 300.00$ Total 150,300.00$ Ballot and Envelope Printing (Mail, in-person, test, etc.) Mail Ballot Printing 140,000.00$ Ballot envelopes (outgoing, return and labels) 90,000.00$ Voter instructions, secrey sleeves, inserts 80,000.00$ Ballot shipping fees 25,000.00$ Ballot-on-Demand supplies (card stock, toner, etc) 8,000.00$ Total 343,000.00$ Ballot Printing, Programming & Insertion Vendor onsite election support (3rd party vendor only) -$ Ballot layout and programming (3rd party vendor only) -$ Ballot insertion and mailing fees (3rd party vendor only) 125,000.00$ BOD Ballot Programming (3rd party vendor only) -$ Total 125,000.00$ VSPC Location Costs VSPC set up expenses 5,000.00$ VSPC location rental expenses -$ Signage 2,000.00$ Office Supplies (pens, forms, etc.) 2,500.00$ Electronic equipment for VSPCs purchased/leased 10,000.00$ Vehicle expenses (rentals, mileage etc) 8,000.00$ Ballot and equipment delivery/collection 8,500.00$ Remote connectivity expenses (Wifi) 1,200.00$ Total 37,200.00$ Security Expenses related to Judges and VSPCs Transfer cases and portable ballot boxes -$ Security personnel costs 1,200.00$ CBI background checks for Election Judges/temp staff 9,000.00$ ATTACHMENT A - PRELIMINARY COST ESTIMATE City of Englewood NOV. 7, 2023 ELECTION COORDINATING COSTS (with TABOR) Page 153 of 553 Total 10,200.00$ Election Notices Statutory notice of election 280.00$ TABOR Notice - printing and production 50,000.00$ Total 50,280.00$ Postage Mail Ballot Postage 70,000.00$ TABOR Notice Postage 25,000.00$ Mail Ballot Undeliverable/Return Postage Due n/a Total 95,000.00$ Total Election Expense 840,980.00$ x Weighted Population Average (WPA) 0.0191$ Total Due to Arapahoe County 16,072.09$ Page 154 of 553 1 Revised May 2023 2023 Coordinated Election - Abridged Calendar Key Dates for Coordinating Jurisdictions Resource provided by Arapahoe County Elections. Use this as a reference guide only. Always refer to the Colorado Constitution, Revised Statutes and Secretary of State rules for applicable provisions. Find a complete election calendar at: https://www.sos.state.co.us/pubs/elections/calendars/2023ElectionCalendar.pdf Date Event Reference Accountable July 2023 20-Jul Deadline for County Clerk to provide Election Plan to the Secretary of State (110 days prior) 1-7.5-105(1) Rule 7.1.1 County Clerk 28-Jul Deadline for Jurisdiction to notify County Clerk of intent to coordinate in the election (100 days prior) 1-1-106(5) 1-7-116(5) Jurisdiction August 2023 29-Aug Deadline for Jurisdiction to return Address Library Report acknowledgment form with any necessary revisions to County Clerk (70 days prior) IGA Jurisdiction 29-Aug Deadline for County Clerk and coordinating jurisdictions to sign intergovernmental agreement (70 days prior) 1-7-116(2), Rule 4.1.2 Jurisdiction, County Clerk 29-Aug Deadline for candidates to record their name on a phone voice mail provided by County Clerk for the audio ballot Rule 4.6.2. IGA Candidates September 2023 8-Sep Deadline for Jurisdiction to certify ballot content to County Clerk (60days prior) 1-5-203(1) 1-1-106(5) Jurisdiction 8-Sep Deadline for Jurisdiction to order initial property owner list from County Assessor (60 days prior) IGA Jurisdiction 22-Sep Last day for Jurisdiction to accept pro/con comments pertaining to local ballot issues for the TABOR Notice (by noon the Friday before 45th day before the election) 1-7-901(4)Voters, Petition Reps, Jurisdiction 23-Sep Deadline to send mail ballots to military and overseas electors. (No later than 45 days before the election) 1-1-106(5) 1-8.3-110(1) County Clerk 25-Sep Deadline for Jurisdiction to provide initial list to County Clerk of eligible property owners to receive ballots and TABOR notice (43 days prior) IGA Jurisdiction 25-Sep Deadline for Jurisdiction to deliver full text of TABOR issue notices to County Clerk (43 days prior) 1-7-904 Jurisdiction October 2023 6-Oct Deadline for County Clerk to mail TABOR Notice to registered voter households on behalf of all coordinating jurisdictions (30 days prior) Art. X, Sec. 20(3)(b) 1-1-106(5) Rule 4.3.1 County Clerk 6-Oct Deadline for Jurisdiction to order supplemental list of property owners from County Assessor (30 days prior) IGA Jurisdiction Page 155 of 553 2 Revised May 2023 13-Oct Deadline for Jurisdiction to withdraw a ballot issue or question from the ballot (25 days prior) 1-5-208(2)Jurisdiction 13-Oct Deadline for Jurisdiction to provide supplemental list of eligible property owners to County Clerk (25 days prior) IGA Jurisdiction 16-Oct First day County Clerk can mail ballots to voters, excluding UOCAVA voters (22 days prior) 24-hour ballot drop boxes will be open for ballot return 1-7.5-107(3)(a)(I) Rule 7.2.3 County Clerk 16-Oct Deadline to register to vote through a Voter Registration Drive and receive a mail ballot (22 days prior or day after holiday) 1-2-201(3)(b)(I)Voters 17-Oct Deadline for County Clerk to conduct the public Logic and Accuracy Test (21 days prior) Rule 11.3.2(a) County Clerk 18-Oct Deadline for County Clerk to publish notice of election in newspaper (20 days prior) 1-1-104(34) 1-5-205(1)(a) County Clerk 23-Oct First day that County may count ballots. (15 days prior) No results may be disclosed until 7 p.m., Election Day 1-7.5-107.5 County Clerk 30-Oct First day Voter Service & Polling Centers must be open (Beginning at least 8 days before and continuing through election day, except Sundays) 1-5-102.9(2) Rule 7.8.1 County Clerk 30-Oct Deadline for voters to register to vote or make updates and still receive a mail ballot (Through the 8th day prior) 1-2-201(3)(b)(III) 1-2-201(4) 1-2-508(3)(a)(1) Voters 3-Nov Deadline to return a completed Certificate of Appointment to County Clerk to appoint watchers observe election activities on Election Day (earlier if want to observe earlier days) 1-7-107 Candidate, Ballot Issue Proponents or Opponents November 2023 7-Nov Coordinated Election (Voter Service and Polling Centers and Ballot Drop-Off locations open 7 a.m. - 7 p.m.) 1-1-104(17) 1-4-201 Rule 7.9.1(b) County Clerk, Voters 15-Nov Deadline for UOCAVA (military and overseas) ballots to be received by Clerk to be received (8 days after) 1-8.3-111 and 113 Rule 16.1.5 Voters 15-Nov Deadline for voters to cure signature discrepancy or missing signature, and/or to provide missing ID for mail and provisional ballots (8 days after) 1-7.5-107(3.5)(d) 1-7.5-107.3 (2)(a) 1-8.5-105(3)(a) Voters 28-Nov Deadline for County Clerk to complete risk-limiting audit (21 days after) Rule 25.2.3(d) County Clerk 29-Nov Deadline for County Clerk to canvass and certify the election (22 days after) 1-10-102(1) 1-10-103(1) Rule 10 County Clerk 30-Nov Last day for Jurisdiction to provide written notice to Clerk to waive an automatic recount of a referred ballot issue or question that failed (23 days after) 1-10.5-103 Jurisdiction Page 156 of 553 3 Revised May 2023 December 2023 5-Dec Deadline for interested parties to request a recount of election results at their own expense (28 days after) 1-10.5-106(2)Any eligible individual 12-Dec Deadline for County Clerk to complete a statutory recount of any race (35 days after) 1-10.5-102(2) 1-10.5-103 County Clerk 14-Dec Deadline for County Clerk to complete a requested recount (37 days after) 1-10.5-106(2)County Clerk Note on Comput ation of Time If the last day for any act to be done or the last day of any period is a Saturday, Sunday, or legal holiday and completion of the act involves a filing or other action during business hours, the period is extended to include the next day which is not a Saturday, Sunday, or legal holiday. 1-1-106(4) NOTE If a statute or rule requires doing an act in "not less than" or "no later than" or "at least" a certain number of days or "prior to" a certain number of days or a certain number of months before the date of an election, the period is shortened to and ends on the prior business day that is not a Saturday, Sunday, or legal holiday. 1-1-106(5) Page 157 of 553 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Melinda Goblirsch DEPARTMENT: Public Works DATE: August 7, 2023 SUBJECT: Construction Contract for Englewood Recreation Center (ERC) Front Desk, Offices and Restroom Renovation DESCRIPTION: Construction Contract for Englewood Recreation Center (ERC) Front Desk, Offices and Restroom Renovation RECOMMENDATION: Staff recommends that City Council approve, by consent, a professional services agreement with Rhinotrax Construction, Inc. in the amount of $750,000.00 for construction of the Front Desk, Offices and Restroom Renovations at the Englewood Recreation Center (ERC). PREVIOUS COUNCIL ACTION: NA SUMMARY: The design and construction documents (CD) for this project were completed in April 2021. The project will entail the renovation of the front desk, offices / training room, and restrooms. This will include general conditions, architectural, structural, mechanical, plumbing, and electrical modifications, as described in the 100% CD Set. A Request for Proposal (RFP) was issued May 4, 2023, and seven (7) proposals were received. ANALYSIS: Of the seven (7) proposals received, three (3) responses were disqualified due to incomplete documents being submitted. The selection process involved staff members reviewing each proposal based on a pre-defined criteria and shortlisting four (4) contractors who submitted complete proposal documents. Scores were available from 1-4 (1 being the best). Company Name Final Score A.D. Miller 2.53 Rhinotrax Construction, Inc 1.44 SCS.inc 2.75 Wakaya Construction 3.29 Page 158 of 553 The contractors' proposals were scored based on Professional Qualifications, work on Similar Projects, Project Approach, Schedule, and Fee Proposal. The staff recommends Rhinotrax Construction, Inc. because: •Rhinotrax Construction has the professional qualifications for the scope of services required •they have extensive experience providing construction services to municipalities •their history of providing similar project types and working in occupied settings •they proposed a work plan that responds specifically to this project •they use a method of selecting the most qualified subcontractors specific to our project type •the superintendent will be on site full time COUNCIL ACTION REQUESTED: Staff recommends that City Council approve a professional services agreement with Rhinotrax Construction, Inc. in the amount of $750,000.00 to provide Construction Services for the Englewood Recreation Center (ERC) Front Desk, Offices and Restroom Renovation FINANCIAL IMPLICATIONS: Funding Source: 30-1301-005 PIF - ERC Upgrades in the amount of $750,000.00 CONNECTION TO STRATEGIC PLAN: Infrastructure OUTREACH/COMMUNICATIONS: NA ATTACHMENTS: CFS-23-112 ERC Front Desk, Office, Restroom Renovation - redacted Contract Approval Summary PowerPoint Presentation Page 159 of 553 ______________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 1 CONTRACT FOR SERVICES AGREEMENT NUMBER CFS-23-112 ENGLEWOOD RECREATION CENTER FRONT DESK, OFFICE AND RESTROOM RENOVATIONS Not to exceed $750,000.00 THIS CONTRACT made and entered into on by and between Rhinotrax Construction Inc. Hereinafter called the CONTRACTOR and the CITY OF ENGLEWOOD, hereinafter called the CITY. WITNESSETH; The parties do hereby contract and agree as follows: 1. The CONTRACTOR shall furnish the CITY the following services: The project will entail the renovation of the front desk, offices / training room, and restrooms. This will include general conditions, architectural, structural, mechanical, plumbing, and electrical modifications, as described in the 100% CD Set. Per RFP-23-013 _______________________________________________________________________ At the location of: Englewood Recreation Center for a total contract price of: Not to exceed seven-hundred fifty-thousand ($ 750,000.00) Dollars 2. The initial term of this contract is for one year. The term of this contract shall begin upon the date that both parties have signed the contract with the work to be completed upon the date set forth in the Statement of Work attached hereto, but at no time shall the contract be longer than a one-year period. In the event that the parties desire to extend the contract beyond the one-year period, written notice shall be given to the City no later than thirty (30) days prior to the end of the contract by the Contractor. If the City agrees to the request for renewal, the parties shall then enter into an amendment extending this Contract including an amended Statement of Work, if necessary. Any renewal of this contract is subject to approval by the Englewood City Council. 3. The Contractor shall not commence work under this Contract until the insurance required under Paragraph 20 of the General Terms and Conditions has been acquired and satisfactory proof of such insurance has been submitted to the City. 4. The project or services being provided hereunder shall be supervised or inspected by the Project Manager for the City, or his or her authorized designee. 5. 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 the entire and only compensation therefore, such sum or sums of money as may be proper in accordance with the total estimated price or prices set forth in the Contractor’s proposal attached hereto and made a part hereof. Payment shall be made in a lump sum upon final completion of the project unless other payment terms are agreed to by the parties and set forth in the Statement of Work attached hereto. A 5% retainage of the awarded project amount will be withheld until final inspection and acceptance by the Project Manager. Page 160 of 553 Page 161 of 553 ______________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org CFS-23-112 3 ATTACHMENT A – GENERAL TERMS AND CONDITIONS GENERAL TERMS AND CONDITIONS 1. PROPOSAL ACCEPTANCE. Proposals are subject to acceptance by the signing of a contract and issuance of an appropriate purchase order at any time within sixty (60) days after the receipt of quotes unless otherwise stipulated. The City reserves the right to accept or reject any and all quotes and reserves the right to waive any informality in any quote. All contracts over $100,000 are subject to approval by City Council. This contract and any attachments are not valid until such approval has been obtained. 2. SITE EXAMINATION. If applicable, Contractor must examine the site and certify all measurements, specifications and conditions affecting the work to be performed at the site. By submitting their quote, the Contractor warrants that he or she (hereinafter he or his) made such site examination as they deem necessary regarding the condition of the site; its accessibility for materials, workmen and utilities and the Contractor’s ability to protect existing surface and subsurface improvements. No claim for allowance of time or money will be allowed as to such matters or for any other undiscovered conditions on the site. 3. EQUIPMENT AND LABOR. The Contractor shall furnish all tools, equipment, apparatus, facilities, transportation, labor, and material necessary to furnish the services herein described. The services shall be performed at such times and places as directed by the authorized City representative as indicated in the work specifications or statement of work attached hereto. 4. SUBCONTRACTORS. Contractor agrees to bind every subcontractor to the terms of this contract as far as such terms are applicable to subcontractor's work. If Contractor shall subcontract any part of this contract, Contractor shall be fully responsible to the City for acts and omissions of his subcontractor and of persons either directly or indirectly employed by himself. Nothing contained in the contract documents shall create any contractual relations between any subcontractor and the City. 5. DEFAULT BY CONTRACTOR. When Contractor, or any subcontractor, or vendor shall fail to deliver any article or service or shall deliver any article or service which does not conform to the work specifications or the Statement of Work, the City may, upon five (5) business days’ prior written notice describing the default, at its option, annul and set aside the contract entered into with said Contractor, subcontractor or vendor either in whole or in part, and enter into a new contract in such a manner which would be to the best advantage of the City. The City reserves the right to cancel any articles or services which the Contractor may be unable to furnish because of economic conditions, governmental regulations or other similar causes beyond the control of the Contractor provided satisfactory proof is furnished to the City, if requested. 6. CONTRACT CHANGES. No changes or alterations to this contract shall be made without specific prior written approval by both parties. 7. WORKERS. Contractor shall at all times enforce strict discipline and good order among his employees and shall not employ on work any unfit person or anyone not skilled in work assigned to him or her. Any person in the employ of the Contractor who the City may deem incompetent or unfit shall be dismissed from the job site and shall not again be employed at the site without written consent from the City. 8. SUBSTITUTIONS. No substitutions of materials or persons from those specified in the Statement of Work shall be made without the prior written approval of the City. 9. CONTRACTOR SUPERVISION. Contractor shall provide competent supervision of personnel employed on the job site, use of equipment, and quality of workmanship. 10. CLEAN UP. Debris shall be removed from the premises. The job site shall be kept in good order at all times when work is not actually being performed and shall be maintained in a safe and clean condition. 11. ACCESS TO WORK. City representatives shall at all times have access to work wherever it is in preparation or progress. Contractor shall provide safe and proper facilities for such access. 12. PROTECTION OF WORK AND PROPERTY. The Contractor shall erect and properly maintain at all times, as required by conditions and progress of work, all necessary safeguards, signs, barriers, lights, and watchmen for protection of workmen and the public, and shall post danger signs warning against hazards created by such features in the course of the construction. 13. OCCUPANCY. The City reserves the right to occupy buildings at any time before formal contract completion and such occupancy shall not constitute final acceptance or approval of any part of the work covered by this contract, nor shall such occupancy extend the date specified for substantial completion of the work. 14. ASSIGNMENT OF CONTRACT AND PURCHASE ORDER. The Contractor shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties, or obligations under this contract without the prior written consent of the City. 15. FORCE MAJEURE CLAUSE. The parties to the Contract shall be excused from performance hereunder during the time and to the extent that they are prevented from obtaining, delivering, or performing by an act of God, fire, strike, loss, shortage of transportation facilities, lock-out, or the commandeering of materials, products, plants or facilities by the government; when satisfactory evidence thereof is presented to the other party(ies), provided that it is satisfactorily established that the non-performance is not due to the fault or neglect of the party not performing. 16. HOLD HARMLESS CONTRACT. The Contractor shall save, defend, hold harmless and indemnify the City from and against any and all losses, damages, liabilities, claims, and costs of whatsoever kind and nature for injury to or death of any person and for loss or damage to any property occurring in connection with or in any way incident to or arising out of the occupancy, use, service, operations, or performance of work on property under the terms of this contract by any employee, agent, or representative of Contractor and/or its subcontractors unless such loss was a result of the negligent acts or omissions of the City. 17. PAYMENT. Unless otherwise specified, the Contractor shall render invoices for materials delivered or services performed under the Contract or Purchase Order. The City shall make payment for materials, supplies or other services furnished under this Contract in lump sum on completion of the work within thirty (30) days after delivery to and approval by the authorized City representative of all invoices and other documentary evidence Page 162 of 553 ______________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org CFS-23-112 4 reasonably required by the City including the satisfactory release of all liens or claims for liens by subcontractors, laborers, and material suppliers for work or materials provided under this Contract or Purchase Order (which approval shall not be unreasonably withheld). 18. PERMITS AND LICENSES. The Contractor and all of his employees, agents, and subcontractors shall secure and maintain in force, at Contractor’s sole cost and expense, such licenses and permits as are required by law, including any licenses or permits required by the City in connection with the furnishing of materials, supplies, or services herein listed. 19. CONTRACTOR NOT AN OFFICER, EMPLOYEE, OR AGENT OF THE CITY. While engaged in or carrying out other terms and conditions of the Contract or Purchase Order, the Contractor is an independent Contractor, and not an officer, employee, agent, partner, or joint venture of the City. 20. CONTRACTOR'S AND SUBCONTRACTOR'S INSURANCE. The Contractor shall not commence work under this contract until he has obtained the insurance required under this paragraph and satisfactory proof of such insurance has been submitted to City. Except for worker’s compensation insurance, the policy shall not be amended or modified and the coverage amounts shall not be reduced without the City’s prior written consent. The City shall be named as an additional insured and be furnished thirty (30) days written notice prior to cancellation. The Contractor shall not allow any subcontractor, employee or agent to commence work on this contract or any subcontract until this insurance has been obtained. a) INSURANCE TYPES AND AMOUNTS. The City requires the following minimum amounts of insurance coverage: Commercial General Liability in the amount of $3,000,000 per occurrence; Professional Liability Errors and Omissions in the amount of $1,000,000 per occurrence; and Employee Dishonesty and Computer Fraud in the amount of $1,000,000 per occurrence. The above amounts may be amended upward or downward depending on the overall cost of the services provided, and only with the approval of the City. b) WORKER'S COMPENSATION INSURANCE. The Contractor shall procure and shall maintain during the life of this contract, Worker's Compensation Insurance on all of his employees to be engaged in work on the project under this contract and in case of any such work subcontracted, the Contractor shall require the subcontractor provide Worker's Compensation Insurance for all of the subcontractors employees to be engaged in such work unless such employees are covered by the Contractor's Worker's Compensation Insurance. c) CONTRACTOR'S PUBLIC LIABILITY AND PROPERTY DAMAGE INSURANCE. The Contractor and any subcontractor shall procure and shall maintain during the life of this contract, Contractor’s Public Liability Insurance in an amount not less than $1,000,000 for injuries, including accidental death to any one person, and subject to the same limit for each person, in an amount not less than $1,000,000 on account of one accident, and shall also maintain Contractor’s Property Damage Insurance in an amount not less than $1,000,000. 21. WARRANTY/QUALITY. The Contractor, manufacturer, or their assigned agents shall guarantee the workmanship, product or service performed against defects or failures of materials for a minimum period of one (1) year from delivery or the final completion date for the work. All workmanship and merchandise must be warranted to be in compliance with applicable Colorado energy, conservation, and environmental standards; unless a longer minimum period is required in the statement of work. Contractor shall furnish all manufactures’ and supplier’ written guarantees and warrantees covering materials and equipment furnished pursuant to this Contract or Purchase Order. 22. ASSIGNMENT OF CLAIMS. In submitting a quote on this project, the Contractor or any subcontractor agreeing to supply goods, services, or materials, and entering into this contract, the Contractor and/or subcontractor do offer and agree to assign to the City all rights, title, and interest in and to all causes of action it may have pursuant this contract or subcontract. This assignment shall be made and become effective at the time the City tenders final payment to the Contractor without further acknowledgment by the parties. 23. COMPLIANCE WITH LAWS. Contractor shall give all notices and comply with all laws, ordinances, rules and regulations bearing on conduct or work as indicated or specified in the Statement of Work. If Contractor observes that any of the work required by this contract is at variance with any such laws, ordinances, rules or regulations, Contractor shall notify the City, in writing, and, at the sole option of the City, any necessary changes to the scope of work shall be made and this contract shall be appropriately amended, in writing, or this contract shall be terminated effective upon Contractor’s receipt of a written termination notice from the City. If Contractor performs any work knowing it to be in violation of such laws, ordinances, rules or regulations and without first notifying the City of such violation, Contractor shall bear all costs arising therefrom. 24. TIME IS OF THE ESSENCE. Time is of the essence in the performance of and compliance with each of the provisions and conditions of this contract. 25. GOVERNING LAW. This contract shall be governed by and construed in accordance with the laws of the State of Colorado. Venue will be proper in Arapahoe County, CO. 26. NO ORAL MODIFICATION. Any waiver, amendment, modification, consent or acquiescence with respect to this contract or any provision of this contract or with respect to any failure to perform in accordance therewith shall be set forth in writing and duly executed by or on behalf of the party to be bound thereby. 27. TABOR. The parties understand and acknowledge that each party is subject to Article X, § 20 of the Colorado Constitution ("TABOR"). Any provision of this contract or its attachments which imposes upon the City, directly or indirectly, any financial obligation whatsoever to be performed or which may be performed in any fiscal year subsequent of the year of execution of this contract is expressly made contingent upon and subject to funds for such financial obligation being appropriated, budgeted and otherwise made available. 28. PROVISIONS REQUIRED BY LAW DEEMED INSERTED. Each and every provision of law and clause required by law to be inserted in this contract shall be deemed to be inserted herein and this contract shall be read and enforced as though it were included therein. 29. DISCLOSURE OF CONFIDENTIAL INFORMATION. The City as an arm of the state is governed by the terms of the Colorado Open Records Act, C.R.S. 24-72-201 et. seq. In the event a Disclosing Party receives an Open Records request, the Disclosing Party shall notify the other party to this Contract of such request. 30. ATTORNEY’S FEES. In the event that either party to this Contract shall commence any action against the other party arising out of or in connection with this Contract, or contesting the validity of the Contract or any provisions of the Contract, the Page 163 of 553 ______________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org CFS-23-112 5 prevailing party shall be entitled to recover from the other party reasonable attorney’s fees and related costs, and fees and expenses incurred by the prevailing party in connection with such action or proceeding. 31. COMPLIANCE WITH THE IMMIGRATION REFORM AND CONTROL ACT OF 1986. Contractor certifies that Contractor has complied with the United States Immigration Reform and Control Act of 1986. All persons employed by Contractor for the performance of this Contract have completed and signed Form I-9 verifying their identities and authorization for employment. 32. USE OF CITY NAME OR LOGO. Except as otherwise provided in this Contract, the Contractor shall not refer to this Contract or the City of Englewood in any advertising or promotions in such a manner as to state or imply that the product or service provided is endorsed or preferred by the City of Englewood, its employees, or its Departments, or is considered by these entities to be superior to other products or services. Any use of the name, image, or logo of the City of Englewood in advertising or promotions must be approved in writing by the City prior to such use. 33. INCORPORATION BY REFERENCE. This Contract is made under and conformable to the provisions of Section 4-1-3-4 of Englewood Municipal Code, which provides standard contract provisions for all contractual agreements with the City. Insofar as applicable, the provisions of EMC Section 4-1-3-4 are incorporated herein and made a part hereof by this reference and shall supersede any apparently conflicting provision otherwise contained in this Contract. (REMAINDER OF PAGE INTENTIONALLY LEFT BLANK) Page 164 of 553 ______________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 6 ATTACHMENT B STATEMENT OF WORK 1. GENERAL The City of Englewood (City) is contracting for the Englewood Recreation Center (ERC) Front Desk, Offices and Restroom Renovation. This document will outline the scope of work and deliverables for Rhinotrax Construction, Inc., the payment schedule, and contract amount to be paid for the services provided to the City for the materials, construction, and coordination of this project to completion and final acceptance. Per RFP-23-013 2. NAMES, PHONE NUMBERS AND EMAILS OF PROJECT COORDINATORS For the City of Englewood: Melinda Goblirsch, City Architect mgoblirsch@englewoodco.gov, 303-762-2511 For Rhinotrax Construction, Michele King, President michele@ rhinotrax.com, 303 682-9906 3. SUMMARY OF PURPOSE FOR STATEMENT OF WORK The project will entail the renovation of the front desk, offices / training room, and restrooms. This will include general conditions, architectural, structural, mechanical, plumbing, and electrical modifications, as described in the 100% CD Set. This project will be phased to allow for minimal closures of facility during construction. Rhinotrax Construction to supply all labor, equipment, materials, and services necessary to complete the work in accordance with the Contract Document plans and specifications, addendum and building department requirements. This work includes, but is not limited to: Front Desk: a. Interior remodel of existing reception desk space (approximately 2000 SF). Includes removing existing floor tile and sealing the concrete floor. b. Refer to Englewood Renovation – Front Desk 04/09/2021 100% CD Set. Office and Training Room: a. Interior office remodel of existing office space (approximately 950 SF). b. Refer to Englewood Renovation – Office & Training Room 04/09/2021 100% CD Set. Page 165 of 553 ______________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org CFS-23-112 7 Rest Room – Add Alternate 1 is accepted as a part of this contract and scope of work: a. Interior remodel of existing restroom space (approximately 500 SF). Existing restrooms being remodeled do not meet accessibility set forth by IBC/ANSI. The intent of the remodel is to bring the existing restrooms to IBC/IEBC 2018 and ADA/ANSI standards. The restrooms will remain in their existing location and will retain their existing accessible route to a building exit. b. Refer to Englewood Renovation – Rest Room 04/09/2021 100% CD Set. General Information for Projects: a. Contractor shall have conditional use of premises for construction operations during construction period. Owner reserves the right to occupy and to place and to install equipment in completed areas of the building, before Substantial Completion, provided such occupancy does not interfere with completion of the Work. Such placement of equipment and partial occupancy shall not constitute acceptance of the total Work. After Owner occupancy of premises, coordinate access to site by various trades for correction of defective work and work not in accordance with Contract Documents, to minimize disruption of Owner’s activities. 4. EQUIPMENT AND PROGRAMMING TO BE PROVIDED BY CITY (IF ANY) The vending machines in Lobby 20 will be relocated by City of Englewood staff. The temporary front desk will be provided and installed by the City of Englewood. 5. OTHER CONTRACTOR RESOURCES A preconstruction meeting shall be held by the Contractor with the Architect, City of Englewood, and any other project staff to outline and identify the following: Project Schedule including working hours during the day/week Permit requirements Coordination and communication protocol Contractor’s Superintending including 24/7 contact information Submittal requirements / submittal schedule Final inspection and Project Closeout Page 166 of 553 ______________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org CFS-23-112 8 The Owner, Architect and Contractor (OAC) meetings shall be scheduled weekly after contract approval and Notice to Proceed (anticipated on or after week of August 7, 2023). The contractor will administer and provide agenda and meeting minutes for the OAC meetings. The Contractor shall provide the following services on an ongoing basis throughout the duration of the project: 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. Protection of existing building components to remain is required. Submit information that indicates the measures proposed for protecting individuals and property from dust and noise during construction. Indicate proposed locations and construction of barriers for each project. Proposed phasing to allow for building to remain open / minimal closures to be proposed and coordinated with ERC staff and PW representative. 6. DESCRIPTION OF WORK PRODUCT AND DELIVERABLES The detailed plans and specifications, designated 04/09/2021 – 100% CD Set for General, Architecture, Mechanical, Plumbing and Electrical; as provided by Barker, Rinker, Seacat (BRS) Architecture, KL&A Engineers & Builders, 360 Engineering, Inc. and AE Design for: Englewood Renovation – Front Desk Sheet List with Sheet No. and Sheet Name on Cover Sheet 000D Englewood Renovation – Office & Training Room Sheet List with Sheet No. and Sheet Name on Cover Sheet 000D Englewood Renovation – Rest Room Sheet List with Sheet No. and Sheet Name on Cover Sheet 000D Project Manual – Front Desk Architecture Specifications Project Manual – Office & Training Room Architecture Specifications Project Manual – Restroom Architecture Specifications Page 167 of 553 ______________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org CFS-23-112 9 Addendum No. 1 - issued May 25, 2023 Division 1 of the Specifications – issued as a part of the addendum May 25, 2023 These documents shall govern the materials to be furnished, and the work to be performed, in the execution of the contract for construction. 7. SPECIAL TERMS, IF ANY 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. Estimated Quantities The Contractor agrees, accepts, and acknowledges 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 on account of anticipated profits upon the work, or any portion thereof covered by the Contract which is not actually performed. Construction Permits The Contractor is responsible for obtaining all required construction permits and licensing prior to commencement of any work on the project. The Contractor is to acquire permits from the City of Englewood, 1000 Englewood Parkway, Englewood, Colorado 80110, at no cost. EMC Title 8 – Section 8-1.5 Any construction work governed by this title, in or on property owned by the Englewood Housing Authority (EHA), City, State or Federal government shall be exempt from all permit fee assessments which would normally be required. Waiver of permit fees does not exempt the EHA or City from having all necessary permits, licenses, and approvals prior to commencement of construction work. All work performed shall be in conformance with the current adopted building codes, local amendments, and other state, and federal requirements. Refer to code analysis, code plans and general requirements on the architectural and engineering documents. A plan review fee is required when drawings are submitted for review. This fee is based on construction cost. Substitutions Alternatives to any discontinued items will be provided at the time the material submittals are being processed. Page 168 of 553 ______________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org CFS-23-112 10 Finishes specified were based on product lines available 04/09/2021; the finishes will be finalized based on manufacturer’s current product lines and will be selected at time of material submittals. Supervision of Work The Contractor shall provide and continually maintain on the work site during the project’s progress, adequate and competent supervision of all operations for and in connection with the work being performed under this Contract, either personally 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 receive direction given by the Public Works (PW) Representative. The Contractor shall be responsible for the coordination of all trades and the prevention of conflict between all trades. Brad Hicks, Project Manager, will be assigned to this project. Justin Leon, Superintendent will be assigned to this project full time. 8. MODE OF PAYMENT Check issued by the City of Englewood after submittal of final approval of Schedule of Values / Application for Payment. 9. PAYMENT SCHEDULE City will pay Contractor for the work in accordance with the following payment schedule. All payments to Contractor are contingent on Contractor’s satisfying the Deliverables/Milestones set forth in the Payment Schedule. Payments shall be made upon City’s written confirmation to Contractor that the Deliverables-Milestones have been satisfied. A Schedule of Values / Application for Payment for work completed will be submitted for approvals and payment monthly. 10. SCHEDULE AND PERFORMANCE MILESTONES This schedule sets for the target dates and performance milestones for the preparation and delivery of the Deliverables by Contractor. Preliminary Schedule is included. Final schedule will be determined upon City Councils contract approval and the City’s Notice to Proceed. 11. ACCEPTANCE AND TESTING PROCEDURES Page 169 of 553 Page 170 of 553 ______________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org CFS-23-112 12 ATTACHMENT C CONTRACTORS PROPOSAL Page 171 of 553 ______________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org CFS-23-112 13 ATTACHMENT D CERTIFICATE OF INSURANCE Page 172 of 553 DIVISION 1 - COMPANY INFORMATION & EXECUTIVE SUMMARY: a. R --9906 b. is in • - • at . • . • • • - bu • c. - SIGNATURE FORMS AND REQUIRED DOCUMENTATION a. Page 173 of 553 b. DIVISION 3 –– a. • : • : Construction Man construction. • : • Sub--contractors: b. J • -r • • Our t . • Th • 10 on c. Page 174 of 553 • •-- • • Rhinotrax is a 100% • • subcontractors subcontractors. • Rhinotrax – – a. – • hinotrax. • -- -- - - DIVISION 5 – – – a. b. c. . Rhino Page 175 of 553 r - Rhinotrax Construction. DIVISION 6 – – 15 POINTS a. b. c. – FEE PROPOSAL – a. • – Page 176 of 553 Page 177 of 553 Page 178 of 553 Page 179 of 553 Page 180 of 553 Page 181 of 553 June 8th, 2023 Trudi Peepgrass Procurement Supervisor City of Englewood, Procurement Division RE: Englewood Recreation Center Renovation Project RFP Dear Ms. Peepgrass: Pursuant to the RFP issued for the above referenced project, Rhinotrax Construction is pleased to submit the following pricing response and informational package for the above reference project. We possess the qualifications necessary to successfully complete this project from beginning to end. Rhinotrax can commit to the obligations required in the draft agreement. Michele King, President, would be the signatory to any contract documents executed within the City. Rhinotrax has had the privilege of offering construction services and completed a variety of Renovation, Tenant Finish and Remodel projects with the specific requirements of this proposed project. Clients such as the City of County of Denver, the Cities of Longmont and Westminster, the Town of Eaton, the Fitzsimmons Redevelopment Authority, United Airlines, the Safeway Albertsons, and the University of Colorado Denver have found that we have continuously exceeded their expectations. We understand what it takes to successfully complete renovation projects within community space settings that are occupied, and the level of care and attention to detail that is mandatory with these types of projects. Our unique ability to listen to the client’s needs and deliver, starting with the pre-construction phase and following through to the completion of the project, makes us stand out! Our extensive project management and field experience coupled with our history of working within occupied sites makes us a perfect choice for this project. Please do not hesitate to contact us with any questions. Sincerely, Michele L. King President michele@rhinotrax.com 1035 Coffman Street, Longmont, Colorado 80501 (303) 682-9906 Office (303) 532-0106 Fax Page 182 of 553 Jim King brings a strong and long record of successful project management in many types of commercial construction. Before moving into a project manager position, Jim spent 15 years in the field as a project superintendent, which gives him the advantage of seeing both sides of the construction process. Jim King Vice President of Operations / Senior Project Executive Experience: 4 years in construction as a superintendent, estimator, and project manager Strengths: Extensive field knowledge brought to his role as project manager Detailed and Organized Aggressive Scheduling Demands accountability of all team members Jim s prior successes include ground up, renovations and tenant finishes. His experience includes large shopping mall renovations each valued at $3.5 million, historic preservation projects, multi- family housing and residential group homes, restaurant construction and remodels, warehouse and office construction. Jim is very hands-on in his style of project management. He believes that strict adherence to budget, schedule and quality are the only acceptable practices, and he will allow only these processes on all projects completed by Rhinotrax Construction; some are highlighted below. UCD 6th & 11th Floor Remodel Remodel of existing office space at the Lawrence Street Center. UCD Remote Yard Storage Enclose existing yard storage facility to include masonry infill, overhead doors, man doors and flashing to provide a fully enclosed storage area. Safeway Beverage Fire Code Compliance Renovation and addition to beverage production plant to meet current fire code requirements. Regis Northern Colorado Tenant finish of classrooms and offices in 12,400 sf core and shell. Project was completed in 45 days from permit to substantial completion. RMC Pharmaceuticals Tenant Renovation Tenant renovation of existing office space to accommodate new client needs. CSU VTH Small Animal Isolation -Construction of three isolation rooms and nurse station at the CSU Veterinary Teaching Hospital. Regis University Colorado Springs Remodel Renovation of existing classroom and chapel into computer laboratory, office, and classroom spaces at the Regis Colorado Springs facility. Denver Water Moffat Treatment Plant Access Door and Hoist Cut access door into 44-inch thick structural concrete wall for access into storage facility, installation of manual hoist and structural steel support system. Page 183 of 553 Brad Hicks Project Manager Experience: 3 years as Superintendent, Project Manager, Engineer and Estimator Strengths: Schedule driven Strong Leadership Skills Commitment to Quality Attention to Detail Client Relationships Certifications: OSHA 30 Hour Certification CPR/First Aid Supplementary Safety Training 2 Hour Asbestos Awareness Erosion Control Specialist Safeway Training for Operators of Class I-V Forklifts Aerial Work Platform Safety Course Education: BS in Construction Management: Colorado State University After earning a degree in Construction Management from Colorado State University, Brad has built an impressive resume. Working his way from carpenter to Project Engineer, Assistant Superintendent, Project Manager, Estimator, and Project Superintendent, his skill set matches his experience in all facets of commercial construction. Brad s commitment to quality, schedule, and safety are enhanced by his attention to detail and cost control, trade relationships, and leadership ability. Building strong client relationships further strengthens his success. No problem is too much of a challenge and Brad uses his education and experience to find workable solutions. As Superintendent, Brad has extensive experience in ground up construction,,metal buildings and additions. His experience includes many tenant interior construction projects with high levels of finish. He has worked as a project manager for Rhinotrax at the University of Colorado Denver, The Denver Zoo, Kaiser Permanente, Safeway Albertsons, and many more. University of Colorado Denver Center for Surgical Innovations in Bioscience Building Build Out Project Build out of new lab space and conference room at the new Bio Science building, including all finished and M s. Regis University DTC Tenant Finish Tenant finish of 32,000 SF core and shell space completed in 90 days; high end interior finish of classrooms, laboratories, offices, reception, break rooms and theater- style auditorium. Page 184 of 553 Page 185 of 553 Beth Sayles Project Coordinator Experience: Over years in commercial construction project coordination administration. Over years in executive administration Strengths: Excellent organizational and communication skills Strong information technology and systems skills Knowledgeable in OSHA regulations and safety certification requirements Knowledgeable in LEED support acquisition and submissions Education: Central Michigan University, MI Beth has over years of experience in project administration and executive customer service roles. As a project coordinator, she supports multiple project managers simultaneously on numerous projects, while serving as the main administrative contact for subcontractors and vendors during the contracting, phase, construction, and closeout phases. She has worked on projects ranging from $25,000 to 3 million dollars. Her experience includes new construction, tenant finishes and renovations for higher education, retail, office, airport, medical, food service, industrial, civil projects and public projects. Having completed numerous construction projects, she has a thorough understanding of the specific requirements, forms, policies and procedures required by various organizations, along with other public entities. Each project receives close attention to administrative requirements, including participation in the estimating and procurement process, coordination of contracts, boding and insurance requirements; assistance with submittal procurement; tracking of requests for clarification; tracking change order documentation; updated plan logs; material safety data sheets; safety documentation; and closeout documentation. Beth s strong administrative skills and her diligence in getting the proper documentation from subcontractors from start to finish make her a perfect fit for any contract- from municipal work to privately funded projects. Page 186 of 553 Relevant Project Examples: The Riveter Coworking Space: Denver, Colorado Project Architect:UNUM Collaborative Jim Pfeiffer, NCARB, Principal 610-442-1739 jim@unum-collab.com Project Owner: The Riveter is no longer in business as a result of COVID. This 12,500 SF renovation was completed in downtown Denver, Colorado. The work progressed over two phases so that the client could gain occupancy to a portion of the building prior to completing the entire project. This innovative coworking space took and old building and converted it into an expressive and creative space for clients to work and mingle. Communal spaces were created using soft at home features. The scope of work included demolition, carpentry, millwork, insulation, roof patch, doors, frames and hardware, drywall, ceramic tile, flooring, painting, specialties, fire sprinkler, plumbing, mechanical, and electrical work. The exterior was modified to include a new ADA ramp, sidewalk and parking reconfiguration. Page 187 of 553 Center for Surgical Innovations: Denver, Colorado Project Owner: Doug Derber, UCD Project Manager 303-263-6093 (now retired, number current) Project Architect:MOA Architecture Paul Gibson Senior Associate 303-308-1190 PGibson@moaarch.com This 7,800 SF tenant finish project was completed from a core and shell space. This project was located on the Anschutz Medical Campus in the Fitzsimons Redevelopment Authority Bioscience III building. The project included the complete build out of a large meeting/conference/training area, locker rooms, bathrooms, showers, mechanical spaces, training medical procedure room, kitchen, and multiple offices. Work included demolition, concrete patching, structural steel, carpentry, millwork, doors/frames/hardware, access controls, glazing, framing/drywall, acoustical ceilings, painting, flooring, specialties, laboratory casework and equipment, fire sprinkler, lab gasses, HVAC, plumbing, electrical and fire alarm. This facility is used to train physicians on new and innovative transplant techniques for various medical devices. Page 188 of 553 Roccor/Redwire: Longmont, Colorado Project Owner: Heather Kuhar 303-478-7750 Project Architect:Hampton Architecture, Ethan Hampton 720-206-4122 ethan@2hampton.com Roccor now a Redwire Space Company creates components for a rapidly changing aerospace and defense community. This 36,000 SF Tenant Finish Two Phased Project was located in Longmont. The work included renovations to existing office and lab spaces along with expansion office space and a new testing laboratory. Scopes of work included demolition, floor grinding, millwork, doors, frames and hardware, glazing, acoustical ceiling tile, drywall and framing, painting, flooring, specialties, window coverings, plumbing, mechanical, fire sprinkler, electrical, and fire alarm work. This space remained actively occupied during both phases of construction. Page 189 of 553 Project Name Building Owner/Client Architect Project Description Contract Amount Completion Date RTC StaffSafeway Albertsons, Denver Milk Plant Equipment Canopy Safeway Albertsons N/ANew canopy installation to protect equipment at the Denver Safeway Milk Plant.$58,000.00 8/1/2021Michele King, PM and SuperintendentSafeway Albertsons, San Leandro Milk Plant AdditionSafeway Albertsons TranSystemsNew 2000 SF addition of the milk processing plant at the San Leandro, California Milk Plant location.$4,118,038.00 12/15/2021Jim King, PM and Kent Poland, SuperintendentSafeway Albertsons, Denver DC Electrical InvestigationSafeway Albertsons N/AElectrical Investigation to anilyze existing electrical gear on campus.$43,735.00 5/15/2021 Brad HicksUniversity of Colorado Denver R1 S Lab Renovation Rm L18-1308RDG Planning and DesignRemove and replace flooring and paint $24,917.00 7/15/2021Brad Hicks, PM and Rich Swartwood, Superintendent4225 Mariposa Street, Denver Duplex New Build4225 Mariposa LLCRed Pencil ArchitectureDemolition of existing structure and new build of a Duplex.$1,216,907.00 10/15/2021Michele King, PM and Sean Krebs, SuperintendentUS Bank Decommision US Bank N/AReturn tenant space within a King Soopers store back to a vanilla box. $56,966.00 6/1/2021 Michele KingUmoja Biopharma Lab and Office RemodelUmoja Biopharma DLR GroupRemodel of laboratory and office space to include all finishes, HVAC, medical gas, plumbing and fire alarm.$1,556,029.00 11/1/2021 Michele KingPage 1 Page 190 of 553 Project Name Building Owner/Client Architect Project Description Contract Amount Completion Date RTC StaffFRA Atara Biotherapeutics Ste 275 Tenant FinishFitzsimons Redevelopment AuthorityOz ArchitectureTenant Finish within a laboratory space on the UCD Campus.$513,627.95 9/1/2021Brad Hicks, PM and Rich Swartwood, SuperintendentFRA 1st Floor Restroom RepairFitzsimons Redevelopment AuthorityN/ARemodel of restroom to include finishes and plumbing.$69,831.66 5/31/2021Brad Hicks, PM, and Rich Swartwood, SuperintendentHappy Hounds Dog Daycare Kennel and Boarding Facility, LongmontHappy Hounds Dog DaycareMarshall Architecture PCGround up metal building project to include site work, landscaping, all finishes, mechanical, plumbing, and electrical work. $1,417,354.00 5/1/2020Brad Hicks, PM and Kent Wall, SuperintendentFRA BS1 Gates Tenant Finish on the UCD CampusFitzsimmons Redevelopment AuthorityRDG Planning and DesignTenant Finish to remodel existing space for new tenant's use. Includes demo, all finishes, MEP, lab casework, and fire alarm modifications. $439,582.00 6/15/2021Brad Hicks, PM, and Rich Swartwood, SuperintendentDenver International Airport Concourse B Expansion - Furniture InstallationOfficescapes N/AInstallation of all new furniture on the Concourse B West Project at the Denver International Airport.$21,980.00 11/1/2020Michele King, PM and Kent Wall, SuperintendentBoulder County Large Vehicle Wash BayBoulder County JVA IncorporatedRenovation to three bay concrete washing structures for large county vehicles.$71,106.00 9/25/2020Brad Hicks, PM, and Kent Poland, SuperintendentSafeway Albertsons Grocery Freezer Renovations Safeway AlbertsonsDesign / Build ProjectRenovation to the Grocery Freezer to alleviate ice build up$200,000.00 8/15/2020 Brad Hicks, PM Garbanzo Mediterranean Fresh Tenant FinishDelaware North (Concessions Owner) Frontline Design & Development CMFrontline Design & Development CMFit out for concessions space at DEN $1,233,468.00 8/1/2020Jim King PM, and Kent Poland, SuperintendentPeak CaféFitzsimmons Redevelopment AuthorityMOATenant finish of a 1,400 SF café in the Bioscience III building.$353,381.00 8/1/2020Brad Hicks, PM Robert Fisher, SuperintendentCenter for Surgical InnovationsFitzsimmons Redevelopment AuthorityMOATenant finish of a 7,800 SF office and research laboratory space in the Bioscience III building.$1,211,517.00 8/1/2020Brad Hicks, PM Robert Fisher, SuperintendentPage 2 Page 191 of 553 Project Name Building Owner/Client Architect Project Description Contract Amount Completion Date RTC StaffThe Riveter The RiveterUNUM : collaborativeDesign/Build for 12,500 SF building completed in two phases. Demo, all finishes, MEP including kitchen, office spaces, Parent's Room and restrooms$823,260.00 1/15/2019Michele King, PM and Rich Swartwood SuperintendentRoccor Roccor AerospaceHampton Architecture, Inc.Design/Build : 21,000 sf Tenant Finish to include break room, restrooms, offices, and multiple research and production/manufacturing labs. Areas of work include demolition, all finishes, and MEP's.$667,980.00 7/15/2019Michele King, PM and Kent Poland SuperintendentMotherlode Provisions Acme Industries Intergroup ArchitectsMotherlode Provisions is relocating from Longmont to their new building in Hudson where they will resume their production of their all natural and preservative free barbeque, steak and hot sauces. Their new facility is a 45,000 sq. ft. warehouse building with at grade and loading dock height overhead doors. Areas of work include: doors, frames and hardware, drywall, painting, flooring, acoustical ceilings, plumbing, and electrical.$1,506,758.00 7/15/2019Brad Hicks, PM and Walter Howard SuperintendentMortenson Water WellnessMortenson Company RNL ArchitectsThe 7,376 SF ground up construction of the administrative building with scope to include: concrete foundations, masonry, steel structural and misc., rough carpentry, millwork, metal panels, roofing, flashing, and steel metal, joint sealants, doors, frames, and hardware, glazing, drywall and exterior framing, acoustical ceilings, flooring, painting, specialties, breakroom appliances, window coverings, mechanical, plumbing, fire protection, electrical, and audio visual.$2,673,414 4/15/2019Jim King PM, and Ray Rauh, SuperintendentLFP BroadcastingIvy 6000 Spine Property LLCUp ArchitectureTenant Finish for sf office suite in Boulder. Demolition, framing, drywall, painting, and glazing scopes included. $48,081.10 Feb-19Jim King PM Kent Poland SuperintendentPage 3 Page 192 of 553 Project Name Building Owner/Client Architect Project Description Contract Amount Completion Date RTC StaffCircadence TICircadence Cyber SecurityOZ Architecture20,000 s/f renovation project. Scope includes: select demolition, millwork, doors/frames/hardware, glazing, acoustical ceiling, flooring, drywall, painting, plumbing, mechanical, fire sprinkler and alarm, and electrical work.$352,036 1/7/2019Brad Hicks, PM, and Chris Connolly, SuperintendentPage 4 Page 193 of 553 Page 194 of 553 8th June 2023 Page 195 of 553 Page 196 of 553 Page 197 of 553 Page 198 of 553 Page 199 of 553 Contract Number City Contact Information: Staff Contact Person Phone Title Email Summary of Terms: Original Contract Amount Start Date 8/1/2023 Amendment Amount End Date 3/1/2024 Amended Contract Amount Total Term in Years 0.59 Vendor Contact Information: Name Contact Address Phone Email Longmont CO City State Zip Code Contract Type: Please select from the drop down list Descripiton of Contract Work/Services Procurement Justification of Contract Work/Services CONTRACT APPROVAL SUMMARY Rhinotrax Construction, Inc. 1035 Coffman Street, Ste. 110 CFS-Contract for Services CFS-23-112 $ 750,000 $ - $ 750,000 303 762-2511Melinda Goblirsch mgoblirsch@englewoodco.govCity Architect Renewal options available The project will entail the renovation of the front desk, offices / training room, and restrooms. This will include general conditions, architectural, structural, mechanical, plumbing, and electrical modifications, as described in the 100% CD Set. Scope of Services (Sch A) / Sealed Bid / Publication / Contract Rhinotrax ConstrucƟon have the qualificaƟons for the scope of services required; experience providing construction services to municipalities; a history of similar project types and working in occupied settings; a proposed work plan that responds specifically to this project; select the most qualified subcontractors specific 80501 Payment or Revenue terms (please describe terms or attached schedule if based on deliverables) 303 682-9906 michele@ rhinotrax.com Michele King A Schedule of Values / Application for Payment for work completed will be submitted for approvals and payment monthly. Page 200 of 553 CONTRACT APPROVAL SUMMARY Source of Funds: Revenue CAPITAL ONLY A B C 1=A-B-C Capital Tyler New World Spent To Contract Budget Operating Year Project # / Task #Fund Division Account Line Item Description Budget Date Amount Remaining C 2023 30 1301 005 1,268,923$ 109,339$ 750,000$ 409,584$ C -$ -$ -$ -$ O -$ -$ -$ -$ O -$ -$ -$ -$ O -$ -$ -$ -$ Total Current Year 1,268,923$ 109,339$ 750,000$ 409,584$ C -$ -$ -$ -$ C -$ -$ -$ -$ O -$ -$ -$ -$ O -$ -$ -$ -$ O -$ -$ -$ -$ Total - Year Two -$ -$ -$ -$ GRAND TOTAL 1,268,923$ 109,339$ 750,000$ 409,584$ Process for Choosing Contractor: Solicitation Name and Number Attachment (For Capital Items Only / Expense Line Item Detail is Located in OpenGov): All Other Attachments: RFP No: RFP 23-013 NOTES/COMMENTS (if needed): For Operating Line Item Detail, please review information provided in Tyler New World For Capital Items, please review Prior Month's Project Status and Fund Balance Report PIF - ERC Upgrades General Ledger Account String Solicitation:Evaluation Summary/Bid Tabulation Attached Response of Proposed Awardee Prior Month-End Project Status and Fund Balance Report Evaluation Summary/Bid Tabulation AttachedEvaluation Summary/Bid Tabulation AttachedEvaluation Summary/Bid Tabulation AttachedContract Copy of Original Contract if this is an Amendment Copies of Related Contracts/Conveyances/Documents Addendum(s) Exhibit(s) Certificate of Insurance Page 201 of 553 Approval of a Contract for the Englewood Recreation Center Architectural Renovation Presented By Victor Rachael – Director of Public Works Melinda Goblirsch – City Architect Page 202 of 553 Purpose of the Project •The goals are to renovate the Front Desk and Office / Training Room to improve function, aesthetics and to better monitor patrons' entering / exiting the facility. •Restroom upgrade for ADA compliance and updated interior.Page 203 of 553 Summary •A Request for Proposal (RFP) was issued May 4, 2023 •The project includes the renovation of the front desk, offices / training room, and restrooms.Page 204 of 553 Analysis •Seven (7) proposals were received. •Staff members reviewed each proposal based on a pre-defined criteria shortlisting four (4) contractors. •Rhinotrax Construction was selected, with the best overall score. •They have extensive experience working with municipalities •Their history of similar project types and working in occupied buildings •They presented a project specific workplan •The superintendent will be on site full time Page 205 of 553 Financial Implications •Funding Source: Fund No.Fund Title Amount 30-1301-005 PIF – ERC Upgrades $ 750,000.00 Total $ 750,000.00 Page 206 of 553 Summary •Staff recommends that City Council approve a professional services agreement with Rhinotrax Construction, Inc. in the amount of $750,000.00 for construction of the Englewood Recreation Center Front Desk, Office / Training Room and Restrooms.Page 207 of 553 Questions?Page 208 of 553 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Vance Fender DEPARTMENT: Police DATE: August 7, 2023 SUBJECT: MOU between the City of Englewood, and the Bureau of Alcohol, Tobacco, Firearms and Explosives. DESCRIPTION: This is a bill for an ordinance for an MOU between the COE and the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives approving the Englewood Police Department assigning an investigator to the Regional Anti-Violence Enforcement Network (RAVEN) Task Force. RECOMMENDATION: Police Department staff recommends council approve this ordinance as written. PREVIOUS COUNCIL ACTION: There has been no previous council actions on this topic. SUMMARY: The Police Department has worked with the R.A.V.E.N. Task Force to assign an investigator to this task force in 2024 and beyond. Because this requires a memorandum of understanding between two governmental agencies, it requires council approval. There are two MOU;s attached to this ordinance. One with the A.T.F and one with the participating governmental agencies. ANALYSIS: Due to the prevalence of firearms and gun related violence throughout the Denver Metropolitan Region, to include the City of Englewood, the Police Department is allocating an Investigator to the Regional Anti-Violence Enforcement Network (R.A.V.E.N.) Task Force. This task force is made up of Federal Investigators, as well as County and Municipal Investigators from the Denver Metro area. This team of Investigators focuses efforts as a key intervention strategy due to it's ability to target violent offenders in a collaborative manner with various law enforcement agencies sharing municipal borders and the transient nature of these crimes and criminals. The goals of this task force is to increase identification of firearms used in the commission of crimes, a higher clearance rate for violent crimes, increased gun interdiction, reducing violent crimes involving firearms, increased effective deployment of law enforcement resources, and increased prosecution of violent gun crime. These crimes include and crimes in which a firearm may be involved or if the offenders are armed with a firearm. These may be assaults, motor Page 209 of 553 vehicle thefts, possession or distribution of illegal narcotics, and many other types of criminal activity. This is not an increase of any sworn officers of the police department, but is a re-deployment of sworn resources. COUNCIL ACTION REQUESTED: The Police Department respectfully recommends council approve this ordinance for the M.O.U. FINANCIAL IMPLICATIONS: There are no financial implications to the Police Department, yet may yield an increase in federally distributed forfeiture funds based on the federal rules of disbursement of seized property in criminal investigations. CONNECTION TO STRATEGIC PLAN: These M.O.U.s are directly related to Safety in the Strategic Plan. OUTREACH/COMMUNICATIONS: There has been no community outreach regarding these M.O.U.s. ATTACHMENTS: C.B. #34 Memorandum of Understanding between the A.T.F. and E. and the Englewood Police Department. Memorandum of Understanding between all participating agencies of R.A.V.E.N. Page 210 of 553 1 ORDINANCE COUNCIL BILL NO. 34 NO. _____________ INTRODUCED BY COUNCIL SERIES OF 2023 MEMBER _________________ A BILL FOR AN ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF ENGLEWOOD AND THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES FOR A MEMORANDUM OF UNDERSTANDING BETWEEN THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES (ATF), AND ENGLEWOOD POLICE DEPARTMENT, ENGLEWOOD, CO WHEREAS, the ATF and other regional law enforcement agencies formed the Regional Anti-Violence Enforcement Network to combat firearms trafficking and firearms related violent crime; and WHEREAS, the Regional Anti-Violence Enforcement Network was formed after the merger of the Regional Gun Enforcement Team and the Metro Gang Task Force; and WHEREAS, the ATF and other regional law enforcement agencies will work together across multiple jurisdictions to share resources, intelligence, and investigate crimes; and WHEREAS, the Englewood Police Department has been approved to have an officer join the Regional Anti-Violence Enforcement Network; and WHEREAS, having an officer on the task force would grant the Englewood Police Department additional resources to investigate violent crime; and WHEREAS, the goals of the Regional Anti-Violence Enforcement Network are to increase matches in the National Integrated Ballistic Information Network, clear a higher rate of violent crimes, increased interdiction, reduce violent crime rates involving firearms, increase deployment of law enforcement resources, and increased prosecution of violent gun crime; and WHEREAS, Article XIV, Section 18(2)(a) of the Constitution of the State of Colorado, and Part 2, Article 1, Title 29, C.R.S. encourages and authorizes intergovernmental agreements; and WHEREAS, Sections 29-1-203 and 29-1-203.5, C.R.S. authorize governments to cooperate and contract with one another to provide any function, service, or facility lawfully authorized to each. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Page 211 of 553 2 Section 1. The City Council of the City of Englewood, Colorado hereby authorizes execution by the City of an Intergovernmental Agreement with The Bureau of Alcohol, Tobacco, Firearms and Explosives for a Memorandum of Understanding Between The Bureau Of Alcohol, Tobacco, Firearms And Explosives (ATF), and Englewood Police Department, Englewood, CO, in the form substantially the same as that attached hereto. Section 2. General Provisions Applicable to this Ordinance The following general provisions and findings are applicable to the interpretation and application of this Ordinance: A. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this Ordinance or its application to other persons or circumstances. B. Inconsistent Ordinances. All other Ordinances or portions thereof inconsistent or conflicting with this Ordinance or any portion hereof are hereby repealed to the extent of such inconsistency or conflict. C. Effect of repeal or modification. The repeal or modification of any provision of the Code of the City of Englewood by this Ordinance shall not release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such provision, and each provision shall be treated and held as still remaining in force for the purposes of sustaining any and all proper actions, suits, proceedings, and prosecutions for the enforcement of the penalty, forfeiture, or liability, as well as for the purpose of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in such actions, suits, proceedings, or prosecutions. D. Safety Clauses. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Englewood, that it is promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. This Safety Clause is not intended to affect a Citizen right to challenge this Ordinance through referendum pursuant to City of Englewood Charter 47. E. Publication. Publication of this Ordinance may be in the City’s official newspaper, the City’s official website, or both. Publication shall be effective upon the first publication by either authorized method. F. Actions Authorized to Effectuate this Ordinance. The Mayor is hereby authorized and directed to execute all documents necessary to effectuate the approval authorized by this Ordinance, and the City Clerk is hereby authorized and directed to attest to such execution by the Mayor where necessary. In the absence of the Mayor, the Mayor Pro Page 212 of 553 3 Tem is hereby authorized to execute the above-referenced documents. The execution of any documents by said officials shall be conclusive evidence of the approval by the City of such documents in accordance with the terms thereof and this Ordinance. City staff is further authorized to take additional actions as may be necessary to implement the provisions of this Ordinance, and has authority to correct formatting and/or typographical errors discovered during codification. G. Enforcement. To the extent this ordinance establishes a required or prohibited action punishable by law, unless otherwise specifically provided in Englewood Municipal Code or applicable law, violations shall be subject to the General Penalty provisions contained within EMC § 1-4-1. Page 213 of 553 ATF JLEO Task Force MOU – March 2022 Page 1 MEMORANDUM OF UNDERSTANDING BETWEEN THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES (ATF), And Englewood Police Department, Englewood, CO This Memorandum of Understanding (“MOU”) is entered into by and between the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) and the Englewood Police Department (“participating agency”) as it relates to the Regional Anti-Violence Enforcement Network (RAVEN) Task Force (herein referred to as the “Task Force”).  The MOU is specific to the task force being referenced and applies only to the above- named participating agency, although other agencies may also be taking part on the same task force. BACKGROUND  The regional Crime Gun Enforcement Team (CGET) fills a need in Colorado and for regional law enforcement agencies for a proactive, intelligence-based targeting of violent criminal offenders in the District of Colorado. The CGET will produce timely, precise, and objective intelligence data (via NIBIN and crime gun tracing) to focus the efforts of federal and state law enforcement, forensic, and prosecutorial resources on the most violent offenders in the Denver metropolitan area. The CGET concept was selected as a key intervention strategy due to its ability to target violent offenders in a collaborative manner with various law enforcement agencies sharing municipal borders and the transient nature of these crimes and criminals. On January 2, 2019 the ATF CGET merged with the Metro Gang Task Force and formed the Regional Anti-Violence Enforcement Network (RAVEN). AUTHORITIES The authority to investigate and enforce offenses under provisions of this MOU are found at 28 U.S.C. § 599A, 28 C.F.R. §§ 0.130, 0.131, and 18 U.S.C. § 3051. PURPOSE The Task Force will perform the activities and duties described below: a. Investigate firearms trafficking b. Investigate firearms related violent crime Page 214 of 553 ATF JLEO Task Force MOU – March 2022 Page 2 c. Gather and report intelligence data relating to trafficking in firearms d. Conduct undercover operations where appropriate and engage in other traditional methods of investigation in order that the Task Force's activities will result in effective prosecution before the courts of the United States and the State of Colorado. MEASUREMENT OF SUCCESS The success of RAVEN will be measured by the participating agencies willingness to share certain information, such as crime statistics and NIBIN results. Success of RAVEN will involve increased multiple NIBIN matches, a higher clearance rate for violent crimes, increased crime gun interdiction, reducing violent crime rates involving firearms, increased crime gun interdiction, reducing violent crime rates involving firearms, increased effective deployment of law enforcement resources, and increased prosecution of violent gun crime.  Combat and Deter Violent Firearm Crime and Illegal Firearms Trafficking  Firearms Criminal Possession and Use  Combat Criminal Organizations  Utilize Industry Operations to identify and combat straw purchasing and FFL’s responsible for crime guns PHYSICAL LOCATION Officers/troopers/agents assigned to this Task Force by their employer shall be referred to as task force officers (TFOs). TFOs will be assigned to the ATF Denver IV Field Office through the RAVEN Task Force and will be located at the RAVEN office in Aurora, CO. SUPERVISION AND CONTROL The day-to-day supervision and administrative control of TFOs will be the mutual responsibility of the participants, with the ATF Special Agent in Charge or his/her designee having operational control over all operations related to this Task Force. TFOs shall remain subject to their respective agencies' policies and shall report to their respective agencies regarding matters unrelated to this agreement/task force. With regard to matters related to the Task Force, TFOs will be subject to Federal law and Department of Justice and ATF orders, regulations and policies, including those related to standards of conduct, sexual harassment, equal opportunity issues and Federal disclosure laws. Failure to comply with this section could result in a TFO’s dismissal from the Task Force.  RAVEN Task Force is governed by a board that is headed by the Aurora Police Department. The day-to-day operations of the Task Force are run by the Task Force Commander and by state and local supervisors assigned to the Task Force and designated as supervisors. Page 215 of 553 ATF JLEO Task Force MOU – March 2022 Page 3 PERSONNEL, RESOURCES AND SUPERVISION To accomplish the objectives of the Task Force, ATF will assign Special Agents to the Task Force. ATF will also, subject to the availability of funds, provide necessary funds and equipment to support the activities of the ATF Special Agents and TFOs assigned to the Task Force. This support may include office space, office supplies, travel funds, funds for the purchase of evidence and information, investigative equipment, training, and other support items. Each participating agency agrees to make available to its assigned task members any equipment ordinarily assigned for use by that agency. In the event ATF supplies equipment (which may include vehicles, weapons, or radios), TFOs must abide by any applicable ATF property orders or policy and may be required to enter into a separate agreement for their use. To accomplish the objectives of the Task Force, the Englewood Police Department agrees to detail an Investigator(s) as a fulltime TFOs and/or part time TFOs to the Task Force for a period of not less than two (2) years. All full-time TFOs shall qualify with their respective firearms by complying with ATF’s Firearms and Weapons Policy. SECURITY CLEARANCES All TFOs will undergo a security clearance and background investigation, and ATF shall bear the costs associated with those investigations. TFOs must not be the subject of any ongoing investigation by their department or any other law enforcement agency, and past behavior or punishment, disciplinary, punitive, or otherwise, may disqualify one from eligibility to join the Task Force. ATF has final authority as to the suitability of TFOs for inclusion on the Task Force. DEPUTATIONS ATF, as the sponsoring Federal law enforcement agency, may request at its sole discretion that the participating agency’s TFOs be deputized by the U.S. Marshals Service to extend their jurisdiction, to include applying for and executing Federal search and arrest warrants, and requesting and executing Federal grand jury subpoenas for records and evidence involving violations of Federal laws. Such requests will be made on an individual basis as determined by ATF. A TFO will not be granted Department of Justice legal representation if named as a defendant in a private-capacity lawsuit alleging constitutional violations unless all deputation paperwork has been completed prior to the event(s) at issue in the lawsuit. The participating agencies agree that any Federal authority that may be conferred by a deputation is limited to activities supervised by ATF and will terminate when this MOU is terminated or when the deputized TFOs leave the Task Force, or at the discretion of ATF. Page 216 of 553 ATF JLEO Task Force MOU – March 2022 Page 4 ASSIGNMENTS, REPORTS, AND INFORMATION SHARING An ATF supervisor or designee will be empowered with designated oversight for investigative and personnel matters related to the Task Force and will be responsible for opening, monitoring, directing, and closing Task Force investigations in accordance with ATF policy and the applicable United States Attorney General’s Guidelines. Assignments will be based on, but not limited to, experience, training, and performance, in addition to the discretion of the ATF or other supervisor. All investigative reports will be prepared utilizing ATF’s investigative case management system, (N-Force) utilizing ATF case report numbers. The participating agency will share investigative reports, findings, intelligence, etc., in furtherance of the mission of this agreement, to the fullest extent allowed by law. For the purposes of uniformity, there will be no duplication of reports, but rather a single report prepared by a designated individual which can be duplicated as necessary. Every effort should be made to document investigative activity on ATF Reports of Investigation (ROI), unless otherwise agreed to by ATF and the participating agency(ies). This section does not preclude the necessity of individual TFOs to complete forms required by their employing agency. Information will be freely shared among the TFOs and ATF personnel with the understanding that all investigative information will be kept strictly confidential and will only be used in furtherance of criminal investigations. No information gathered during the course of the Task Force, to include informal communications between TFOs and ATF personnel, may be disseminated to any third party, non-task force member by any task force member without the express permission of the ATF Special Agent in Charge or his/her designee. Any public requests for access to the records or any disclosures of information obtained by task force members during Task Force investigations will be handled in accordance with applicable statutes, regulations, and policies pursuant to the Freedom of Information Act and the Privacy Act and other applicable federal and/or state statutes and regulations. INVESTIGATIVE METHODS The parties agree to utilize Federal standards pertaining to evidence handling and electronic surveillance activities to the greatest extent possible. However, in situations where state or local laws are more restrictive than comparable Federal law, investigative methods employed by state and local law enforcement agencies shall conform to those requirements, pending a decision as to a venue for prosecution. The use of other investigative methods (search warrants, interceptions of oral communications, etc.) and reporting procedures in connection therewith will be consistent with the policy and Page 217 of 553 ATF JLEO Task Force MOU – March 2022 Page 5 procedures of ATF. All Task Force operations will be conducted and reviewed in accordance with applicable ATF and Department of Justice policy and guidelines. None of the parties to this MOU will knowingly seek investigations under this MOU that would cause a conflict with any ongoing investigation of an agency not party to this MOU. It is incumbent upon each participating agency to notify its personnel regarding the Task Force’s areas of concern and jurisdiction. All law enforcement actions will be coordinated and cooperatively carried out by all parties to this MOU. INFORMANTS ATF guidelines and policy regarding the operation of informants and cooperating witnesses will apply to all informants and cooperating witnesses directed by TFOs. Informants developed by TFOs may be registered as informants of their respective agencies for administrative purposes and handling. The policies and procedures of the participating agency for handling informants will apply to all informants that the participating agency registers. In addition, it will be incumbent upon the registering participating agency to maintain a file with respect to the performance of all informants or witnesses it registers. All information obtained from an informant and relevant to matters within the jurisdiction of this MOU will be shared with all parties to this MOU. The registering agency will pay all reasonable and necessary informant expenses for each informant that a participating agency registers. DECONFLICTION Each participating agency agrees that the deconfliction process requires the sharing of certain operational information with the Task Force, which, if disclosed to unauthorized persons, could endanger law enforcement personnel and the public. As a result of this concern, each participating agency agrees to adopt security measures set forth herein: a. Each participating agency will assign primary and secondary points of contact. b. Each participating agency agrees to keep its points of contact list updated. The points of contact for this Task Force are: ATF: Group Supervisor Jason Cole Participating Agency: EPD Tracy Jones, Division Chief EVIDENCE Evidence will be maintained by the lead agency having jurisdiction in the court system intended for prosecution. Evidence generated from investigations initiated by a TFO or ATF special agent intended for Federal prosecution will be placed in the ATF designated vault, using the procedures found in ATF orders. Page 218 of 553 ATF JLEO Task Force MOU – March 2022 Page 6 All firearms seized by a TFO must be submitted for fingerprint analysis and for a National Integrated Ballistic Information Network (NIBIN) examination. Once all analyses are completed, all firearms seized under Federal law shall be placed into the ATF designated vault for proper storage. All firearms information/descriptions taken into ATF custody must be submitted to ATF’s National Tracing Center. JURISDICTION/PROSECUTIONS Cases will be reviewed by the ATF Special Agent in Charge or his/her designee in consultation with the participating agency and the United States Attorney’s Office and appropriate state’s attorney offices, to determine whether cases will be referred for prosecution to the U.S. Attorney’s Office or to the relevant state’s attorney’s office. This determination will be based upon which level of prosecution will best serve the interests of justice and the greatest overall benefit to the public. Any question that arises pertaining to prosecution will be resolved through discussion among the investigative agencies and prosecuting entities having an interest in the matter. In the event that a state or local matter is developed that is outside the jurisdiction of ATF or it is decided that a case will be prosecuted on the state or local level, ATF will provide all relevant information to state and local authorities, subject to Federal law. Whether to continue investigation of state and local crimes is at the sole discretion of the state or local participating agency. USE OF FORCE All TFOs will comply with ATF and the Department of Justice’s (DOJ’s) Use of Force orders and policies. TFOs must be briefed on ATF’s and DOJ’s Use of Force policy by an ATF official and will be provided with a copy of such policy. BODY WORN CAMERAS AND TASK FORCE OFFICERS In accordance with DOJ policy, dated October 29, 2020, Body Worn Cameras (BWCs) may be worn by TFOs operating on a Federal Task Force when their parent agency mandates their use by personnel assigned to the task force. In such cases, the parent agency must request to participate in the TFO BWC program and, upon approval, shall comply with all DOJ and ATF policies, and the required procedures, documentation, and reporting while participating on the task force. MEDIA Media relations will be handled by ATF and the U.S. Attorney’s Office’s public information officers in coordination with each participating agency. Information for press releases will be reviewed and mutually agreed upon by all participating agencies, who will take part in press conferences. Assigned personnel will be informed not to give statements to the media concerning any ongoing investigation or prosecution under this MOU without the concurrence of the other participants and, when appropriate, the relevant prosecutor’s office. Page 219 of 553 ATF JLEO Task Force MOU – March 2022 Page 7 All personnel from the participating agencies shall strictly adhere to the requirements of Title 26, United States Code, § 6103. Disclosure of tax return information and tax information acquired during the course of investigations involving National Firearms Act (NFA) firearms as defined in 26 U.S.C., Chapter 53 shall not be made except as provided by law. SALARY/OVERTIME COMPENSATION During the period of the MOU, participating agencies will provide for the salary and employment benefits of their respective employees. All participating agencies will retain control over their employees’ work hours, including the approval of overtime. ATF may have funds available to reimburse overtime to the state and local TFO’s agency, subject to the guidelines of the Department of Justice Asset Forfeiture Fund. This funding would be available under the terms of a memorandum of agreement (MOA) established pursuant to the provisions of 28 U.S.C. section 524. The participating agency agrees to abide by the applicable Federal law and policy with regard to the payment of overtime from the Department of Justice Asset Forfeiture Fund. The participating agency must be recognized under state law as a law enforcement agency and their officers/ troopers/investigators as sworn law enforcement officers. If required or requested, the participating agency shall be responsible for demonstrating to the Department of Justice that its personnel are law enforcement officers for the purpose of overtime payment from the Department of Justice Asset Forfeiture Fund. This MOU is not a funding document. In accordance with these provisions and any MOA on asset forfeiture, the ATF Special Agent in Charge or designee shall be responsible for certifying reimbursement requests for overtime expenses incurred as a result of this agreement. AUDIT INFORMATION Operations under this MOU are subject to audit by ATF, the Department of Justice’s Office of the Inspector General, the Government Accountability Office, and other Government-designated auditors. Participating agencies agree to permit such audits and to maintain all records relating to Department of Justice Asset Forfeiture Fund payments for expenses either incurred during the course of this Task Force or for a period of not less than three (3) years and, if an audit is being conducted, until such time that the audit is officially completed, whichever is greater. FORFEITURES/SEIZURES All assets seized for administrative forfeiture will be seized and forfeited in compliance with the rules and regulations set forth by the U.S. Department of Justice Asset Forfeiture guidelines. When the size or composition of the item(s) seized make it impossible for ATF to store it, any of the participating agencies having the storage facilities to handle the seized property agree to store the property at no charge and to maintain the property in the same condition as when it was first taken into custody. The agency storing said seized property agrees not to dispose of the property until authorized to do so by ATF. Page 220 of 553 ATF JLEO Task Force MOU – March 2022 Page 8 The MOU provides that proceeds from forfeitures will be shared, with sharing percentages based upon the U.S. Department of Justice Asset Forfeiture policies on equitable sharing of assets, such as determining the level of involvement by each participating agency. Task Force assets seized through administrative forfeiture will be distributed in equitable amounts based upon the number of full-time persons committed by each participating agency. Should it become impossible to separate the assets into equal shares, it will be the responsibility of all the participating agencies to come to an equitable decision. If this process fails and an impasse results ATF will become the final arbitrator of the distributive shares for the participating agencies DISPUTE RESOLUTION In cases of overlapping jurisdiction, the participating agencies agree to work in concert to achieve the Task Force’s goals and objectives. The parties to this MOU agree to attempt to resolve any disputes regarding jurisdiction, case assignments and workload at the lowest level possible. LIABILITY ATF acknowledges that the United States is liable for the wrongful or negligent acts or omissions of its officers and employees, including TFOs, while on duty and acting within the scope of their federal employment, to the extent permitted by the Federal Tort Claims Act. Claims against the United States for injury or loss of property, personal injury, or death arising or resulting from the negligent or wrongful act or omission of any Federal employee while acting within the scope of his or her office or employment are governed by the Federal Tort Claims Act, 28 U.S.C. sections 1346(b), 2672-2680 (unless the claim arises from a violation of the Constitution of the United States, or a violation of a statute of the United States under which other recovery is authorized). Except as otherwise provided, the parties agree to be solely responsible for the negligent or wrongful acts or omissions of their respective employees and will not seek financial contributions from the other for such acts or omissions. Legal representation by the United States is determined by the United States Department of Justice on a case-by-case basis. ATF cannot guarantee the United States will provide legal representation to any state or local law enforcement officer. Liability for any negligent or willful acts of any agent or officer undertaken outside the terms of this MOU will be the sole responsibility of the respective agent or officer and agency involved. DURATION This MOU is effective with the signatures of all parties and terminates at the close of business on September 30, 2027. This MOU supersedes previously signed MOUs and shall remain in effect until the aforementioned expiration date or until it is terminated in writing (to include electronic mail and Page 221 of 553 ATF JLEO Task Force MOU – March 2022 Page 9 facsimile), whichever comes first. All participating agencies agree that no agency shall withdraw from the Task Force without providing ninety (90) days written notice to other participating agencies. If any participating agency withdraws from the Task Force prior to its termination, the remaining participating agencies shall determine the distributive share of assets for the withdrawing agency, in accordance with Department of Justice guidelines and directives. This MOU shall be deemed terminated at the time all participating agencies withdraw and ATF elects not to replace such members, or in the event ATF unilaterally terminates the MOU upon 90 days written notice to all the remaining participating agencies. MODIFICATIONS This agreement may be modified at any time by written consent of all participating agencies. Modifications shall have no force and effect unless such modifications are reduced to writing and signed by an authorized representative of each participating agency. SIGNATURES _______________________/___________ ___________________/_________ Sam Watson Date C. Brent Beavers Date Chief of Police Special Agent in Charge, ATF Englewood Police Department Denver Field Division Page 222 of 553 1 MEMORANDUM OF UNDERSTANDING REGIONAL ANTI-VIOLENCE NETWORK (RAVEN) 2021 PARTIES 1. This Memorandum of Understanding (MOU) is entered into by and between the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Homeland Security Investigations (HSI), Special Agent in Charge (SAC), Denver, Colorado office and undersigned Denver metropolitan area law enforcement agencies participating in the Regional Anti-Violence Network task force (RAVEN). Nothing in this MOU should be construed as limiting or impeding the basic spirit of cooperation which exists between these agencies. NO ASSIGNMENT 2. No assignment of rights, duties, or obligations of this MOU shall be made by any party without the express written approval of a duly authorized representative of all other parties. AUTHORITIES 3. 28 U.S.C. sec 599A; 28 CFR sec. 0.130. Specifically, the Gun Control Act of 1968, 18 U.S.C. §§ et seq., and the National Firearms Act, 26 U.S.C. §§ 5861 et seq. 4. Homeland Security Act of 2002, as amended, 116 Stat. 2135, Pub. L. No. 107-296, Nov. 25, 2002, codified in Title 6, U.S. Code. PURPOSE 5. The purpose of this MOU is to delineate the responsibilities of RAVEN personnel, formalize relationships between participating agencies for policy guidance, planning, training, public and media relations, and maximize inter-agency cooperation. This MOU is not intended, and should not be construed, to create any right or benefit, substantive or procedural, enforceable at law or otherwise by any third party against the parties, the United States, or the officers, employees, agents, or other associated personnel thereof. MISSION 6. The mission of RAVEN is to identify, and target for prosecution, criminal enterprise groups responsible for violent gangs and drug trafficking. RAVEN will enhance the effectiveness of federal/state/local law enforcement resources through a well-coordinated initiative seeking the most effective investigative and prosecutive avenues by which to convict and incarcerate dangerous criminal offenders. It is not the mission of RAVEN to enforce federal statutes related to immigration or to conduct civil immigration enforcement of any kind. ORGANIZATIONAL STRUCTURE 7. RAVEN will consist of a combined enforcement body of agencies participating in this MOU ("Participating Agencies”). The Participating Agencies, identified below, will provide full-time assigned personnel. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) County of Adams, Sheriff’s Office Page 223 of 553 2 County of Arapahoe, Sheriff’s Office City of Aurora, Aurora Police Department City and County of Denver, Denver Police Department Denver District Attorney's Office County of Douglas Sheriff’s Office Department of Corrections – Parole Homeland Security Investigations (HSI) County of Jefferson, Sheriff’s Office City of Lakewood, Lakewood Police Department City of Englewood, Englewood Police Department Ex-officio Representatives: - Rocky Mountain High Intensity Drug Trafficking Area (RMHIDTA) - US Attorney’s Office DIRECTION, EXECUTIVE BOARD ROLE 8. The Participating Agencies acknowledge that RAVEN is a joint operation in which all Participating Agencies act as full partners in the operation of the RAVEN task force. An “Executive Board,” made up of the Aurora Police Chief, the ATF Special Agent in Charge of the Denver Field Division, the HSI Special Agent in Charge of the Denver office, and each Participating Agency’s department/agency heads will be responsible for the strategy and direction of RAVEN. The Executive Board will meet on a regular basis to provide policy oversight and ensure that RAVEN meets the goals and objectives of all Participating Agencies. Unresolved issues and conflicts involving RAVEN should be brought to the Executive Board for consultation to assist in the decision-making process. Each Participating Agency head is authorized to delegate Membership on the Executive Board to a management level subordinate. SUPERVISION 9. Ultimate oversight, supervision, and administrative control of RAVEN will be the responsibility of the Executive Board of RAVEN. 10. The day-to-day operation, coordination, and execution of RAVEN will be the responsibility of a Task Force Commander (TFC). The TFC will be selected from the Aurora Police Department and ratified by the Executive Board. The TFC shall hold the rank of lieutenant or above and have administrative and operational authority of RAVEN. 11. Pursuant to 19 U.S.C. § 507(a)(2), HSI Special Agents (SA) may demand the assistance of any person in the conduct of their duties. Pursuant to 19 U.S.C. §§ 1401(i) and 1589a, the HSI SAC may authorize sworn law enforcement officers to assist HSI SAs with enforcing violations of the federal code such as Title 18. 12. ATF, as the sponsoring Federal law enforcement agency, may request at its sole discretion that the Participating Agency’s Task Force Officers (TFO) be deputized by the U.S. Marshals Service to extend their jurisdiction, to include applying for and executing Federal search and arrest warrants, and requesting and executing Federal grand jury subpoenas for records and evidence involving violations of Federal laws. Such requests will be made on an individual basis as determined by ATF. 13. Conduct undertaken outside the scope of an individual's RAVEN duties and assignments under this MOU shall not fall within the oversight responsibility of any Participating Agency that is not the individual’s Participating Agency. Page 224 of 553 3 14. RAVEN personnel will be subject to the laws, regulations, policies, and personnel rules applicable to their respective Participating Agency as well as RAVEN’s policies and procedures. Responsibility for the conduct of RAVEN members, both personally and professionally, shall remain with the respective Participating Agency heads. Should there be a conflict in Participating Agency and RAVEN policies, the more restrictive policy shall control. 15. Acknowledging that RAVEN personnel will need to commit some time for non-RAVEN matters, personnel assigned to RAVEN by the Participating Agencies will be committed full time to the RAVEN assignment. As a general rule, continued assignment of personnel to RAVEN will be based on performance and at the discretion of the appropriate Participating Agency. Should a dispute arise between a Participating Agency and the TFC regarding the continued assignment of a RAVEN TFO, the matter will be brought to the Executive Board for a final determination. CASE ASSIGNMENTS 16. The TFC will be responsible for opening, monitoring, directing, and closing all RAVEN investigations. 17. Assignments of cases to personnel will be based on, but not limited to, experience, training and performance, in addition to the discretion of the TFC. 18. All RAVEN personnel will have equal responsibility for each case assigned. All RAVEN personnel assigned to each case will be responsible for completing investigations from predication to resolution. OPERATIONS 19. It is agreed that matters designated to be handled by RAVEN will not knowingly be subject to non-RAVEN law enforcement efforts by any of the Participating Agencies. It is incumbent on each Participating Agency to make proper internal notification regarding RAVEN’s existence and areas of concern. 20. RAVEN investigative leads outside of the geographic areas of responsibility for ATF SAC- Denver or HSI SAC-Denver will be communicated to other ATF and HSI offices or other task forces for appropriate investigation. CONFIDENTIAL HUMAN SOURCES 21. In handling Confidential Human Sources (CHS), all TFOs will, at a minimum, follow the policies and procedures of RAVEN. 22. Any payment issued by HSI to or for the benefit of a CHS must be documented pursuant to HSI guidelines and policies, which will be provided to all TFOs immediately upon their assignment to RAVEN and Participating Agencies upon request. REPORTS AND RECORDS 23. Personnel assigned to RAVEN may utilize report forms and reporting formats required by their Participating Agencies. Subject to pertinent legal and/or policy restrictions, copies of pertinent documents created by RAVEN personnel will be made available for inclusion in the respective Participating Agency's files as appropriate. Page 225 of 553 4 INFORMATION SHARING 24. The Parties agree that information and data shared under this MOU are to be treated and used with an express understanding of confidentiality. Such information, as well as inquiries and requests for information, received by a Participating Agency under this MOU, is to be accorded protection from disclosure to third parties to the greatest extent permissible under the Colorado Rules of Criminal Procedure, the Federal Rules of Criminal Procedure, the Freedom of Information Act, 5 U.S.C. § 552, the Colorado Criminal Justice Records Act, C.R.S. § 24-72-301 et seq. (“CCJRA”), and other applicable federal and/or state statutes and regulations; and subject to disclosure restrictions contained in the Privacy Act, 5 U.S.C. § 552a and the CCJRA. 25. A Participating Agency that discloses Personally Identifiable Information (Pll) is responsible for making reasonable efforts to ensure that the information disclosed is accurate, complete, timely and relevant. 26. Each Participating Agency is responsible for ensuring that information it discloses was not knowingly obtained or maintained in violation of any law or policy applicable to the disclosing party, and that information is only made available to the receiving party as may be permitted by laws, regulations, policies, or procedures applicable to the disclosing party. 27. Participating Agencies will immediately report to the other Participating Agencies each instance in which investigative information received from the other Participating Agencies is used, disclosed, or accessed in an unauthorized manner (including any data losses or breaches). 28. The Participating Agency agrees that each may audit the handling and maintenance of investigative information in electronic and paper recordkeeping systems to ensure appropriate security and privacy protections are in place. Requests for audits shall go through the Executive Board, which will oversee any such audit, including the procedures for such audit, acknowledging that any audit will be strictly limited to the examination of security and privacy for confidential information. The Executive Board may designate a person or persons to coordinate the audit on behalf of the Executive Board and work directly with the Participating Agencies involved. 29. All personnel from the Participating Agencies shall strictly adhere to the requirements of Title 26, United States Code, § 6103. Disclosure of tax return information and tax information acquired during the course of investigations involving National Firearms Act (NFA) firearms as defined in 26 U.S.C., Chapter 53, shall not be made except as provided by law. PROSECUTIONS 30. RAVEN investigative procedures, whenever practicable, are to conform to the requirements which would allow for either federal or state prosecution. 31. A determination will be made on a case-by-case basis whether the prosecution of RAVEN cases will be at the state or federal level. This determination will be based on the evidence obtained and a consideration of which level of prosecution would be of the greatest benefit to the overall objectives of RAVEN, in consultation with appropriate prosecuting authorities. Page 226 of 553 5 INVESTIGATIVE METHODS 32. For RAVEN investigations that contemplate federal prosecution at any point during the investigation, the Participating Agencies agree to conform to ATF policies and procedures concerning investigative methods, evidence collection, processing, storage, and electronic surveillance. However, in situations where the investigation will be prosecuted in the Colorado state court system, the investigative methods employed by ATF SAs and TFOs shall conform to the requirements of Colorado state law, if they do not conflict with federal law. USE OF LESS-LETHAL DEVICES 33. The Participating Agency of each individual assigned to RAVEN will ensure that while the individual is participating in RAVEN operations as a RAVEN officer, the individual will carry only less-lethal devices that the Participating Agency issued to the individual, and that the individual has been trained in accordance with their Participating Agency's policies and procedures. DEADLY FORCE AND SHOOTING INCIDENT POLICIES 34. RAVEN personnel will follow their own Participating Agency's policies concerning firearms discharge and use of deadly force. TITLE 19 TFO CUSTOMS OFFICER CROSS-DESIGNATION 35. The Participating Agencies agree that any Federal authority that may be conferred by a deputation is limited to activities supervised by ATF and will terminate when the MOU is terminated or when the deputized TFOs leave the task force, or at the discretion of ATF. 36. Sworn investigators assigned full-time to RAVEN will be cross-designated by HSI as Title 19 TFOs with certain authorities of a federal Customs Officer. The cross-designation requires the HSI SAC to execute a separate MOU (Form 73-002) with the employing Participating Agency. This MOU will outline the HSI duties and Customs authorities that the cross-designated Title 19 TFO will be authorized to perform upon successful completion of an HSI TFO Course; however, the duties may be restricted on each Title 19 TFO’s Designation Form (Form 73-001). VEHICLES 37. Vehicles will be provided to TFOs by RAVEN on an as-needed basis subject to availability. Each TFO and their Participating Agency is responsible for general upkeep of their assigned vehicle(s), including fuel, and ensuring the vehicle is in safe working order. Maintenance on the vehicle will be the responsibility of the Participating Agency who pays for the lease on the vehicle. Auto-physical damage insurance coverage for the vehicle will be the responsibility of the Participating Agency who pays for the lease on the vehicle. Auto-liability insurance coverage for the TFO will be the responsibility of the TFO’s employing Participating Agency. Nothing in this MOU precludes a Participating Agency from providing a vehicle to its assigned TFO. 38. Any damage occurring to an assigned vehicle supplied by RAVEN as a result of a TFO’s negligence shall be the responsibility of the assigned TFO’s home agency. Page 227 of 553 6 SALARY/OVERTIME COMPENSATION 39. The Participating Agencies remain responsible for all personnel costs for their RAVEN representatives, including salaries, overtime payments and fringe benefits consistent with their respective Participating Agency, except as described below. 40. Subject to funding availability and authorization, HSI may reimburse Participating Agencies for the cost of overtime worked by sworn law enforcement personnel assigned full-time to RAVEN in accordance with the individual Memorandum of Understanding Between Immigration and Customs Enforcement and Local, County, or State Law Enforcement Agency for the Reimbursement of Joint Operations Expenses from the Treasury Forfeiture Fund (SLOT MOU) entered into with each Participating Agency, provided overtime expenses were incurred as a result of RAVEN-related duties. Additionally, overtime costs may be reimbursed by RMHIDTA or from the federal seizure funds. Otherwise, overtime shall be compensated in accordance with applicable overtime provisions for the Participating Agencies and shall be subject to the prior approval of appropriate personnel. PROPERTY AND EQUIPMENT 41. Property utilized by RAVEN in connection with authorized investigations and/or operations and in the custody and control and used at the direction of RAVEN will be maintained in accordance with the policies and procedures of the Participating Agency supplying the equipment. Property damaged or destroyed which was utilized by RAVEN in connection with authorized investigations and/or operations and is in the custody and control and used at the direction of RAVEN will be the financial responsibility of the Participating Agency supplying said property. Property and equipment damaged as a result of a normal operational incident in conjunction with an authorized investigation may be repaired or replaced utilizing RAVEN operational funds. FUNDING 42. This MOU is not an obligation or commitment of funds, nor a basis for transfer of funds, but rather is a basic statement of the understanding between the Participating Agencies hereto of the tasks and methods for performing the tasks described herein. Unless otherwise agreed in writing, each Participating Agency shall bear its own costs in relation to this MOU. Expenditures by each party will be subject to its budgetary processes and to the availability of funds and resources pursuant to applicable laws, regulations, and policies. The Participating Agencies expressly acknowledge that the above language in no way implies that Congress or other relevant governing bodies will appropriate funds for such expenditures. 43. Procurements by RAVEN through funds acquired through grants or otherwise by RAVEN become the property of RAVEN (“RAVEN Item”). The City of Aurora divests any ownership interest in any RAVEN Item procured after January 1, 2021. In the event RAVEN disbands and procured items are split between the Participating Agencies, Aurora will not have any right or interest in RAVEN Items procured after January 1, 2021. 44. The Participating Agencies to this MOU understand and agree that any expenditure of the City and County of Denver shall extend only to funds appropriated by the Denver City Council for the purpose of the types of law enforcement activities contemplated by this MOU, encumbered for the types of law enforcement activities contemplated by this MOU, and paid into the Treasury of the City and County of Denver. Page 228 of 553 7 FORFEITURES 45. Asset forfeitures will be conducted in accordance with federal forfeiture laws, regulations, and guidelines, and in accordance with the direction of the RAVEN Executive Board. DISPUTE RESOLUTION 46. In cases of overlapping jurisdiction, the Participating Agencies agree to work in concert to achieve RAVEN's objectives. 47. The Participating Agencies agree to attempt to resolve any disputes regarding jurisdiction, case assignments, workload, etc., at the task force level first before referring the matter to supervisory personnel for resolution. MEDIA RELEASES 48. All media releases and statements will be mutually agreed upon and jointly handled according, when practicable, to Participating Agency guidelines. LIABILITY 49. The Participating Agencies acknowledge that this MOU does not alter the applicable law governing civil liability, if any, arising from the conduct of personnel assigned to RAVEN. 50. Each Participating Agency shall immediately notify the other Participating Agencies of any complaint, discovery request, or other request for information of which the agency receives notice, concerning or arising from the conduct of personnel assigned to RAVEN or otherwise relating to RAVEN. All parties agree to cooperate fully with one another in the event of any investigation arising from alleged negligence or misconduct arising from acts related to this MOU. Nothing in this paragraph prevents any Participating Agency from conducting an independent administrative review of any incident giving rise to a claim. Each Participating Agency acknowledges that, with the exception of auto-physical damage as stated in paragraph 37 above, financial and civil liability, if any, and in accordance with applicable law, for the acts and omissions of each employee detailed to RAVEN remains vested with their employing agency. 51. Liability for any conduct by RAVEN personnel undertaken outside of the scope of their assigned duties and responsibilities under this MOU shall not be the responsibility of any of the non-employing Participating Agencies and their governing bodies. Liability shall be the sole responsibility of the respective employee and/or the employing Participating Agency. DURATION 52. The term of this MOU is for the duration of RAVEN, contingent upon approval of necessary funding, but may be terminated at any time upon written mutual consent of the Participating Agencies. 53. Any Participating Agency may withdraw from RAVEN at any time by written notification to the Executive Board and the Task Force Commander at least thirty (30) days prior to withdrawal. 54. Upon termination of this MOU, all equipment provided to RAVEN will be returned to the supplying agency/agencies. In addition, when a Participating Agency withdraws from the MOU, the Participating Agency will return equipment to the supplying agency/agencies. Page 229 of 553 8 Similarly, remaining agencies will return to a withdrawing agency any unexpended equipment supplied by the withdrawing agency during any RAVEN participation. MODIFICATIONS 55. This MOU may be modified at any time by written consent of all involved Participating Agencies. 56. Except as stated below, modifications to this MOU shall have no force and effect unless such modifications are reduced to writing and signed by an authorized representative of each Participating Agency. The addition of other law enforcement agencies and the provision of funds or equipment by those agencies can be completed when approved by a majority of the Executive Board. DISCLOSURE OF MOU 57. In the event that any of the Colorado governmental parties receive a records request for a copy of the MOU pursuant to the Colorado Open Records Act. C.R.S. §§ 24-72-200.1, et seq., or the Colorado Criminal Justice Records Act, C.R.S. § 24-72-301, et seq., the Colorado governmental parties will provide notification to the ATF SAC-Denver office and the HSI SAC- Denver office prior to releasing the MOU. THE REMAINDER OF THE PAGE LEFT BLANK Page 230 of 553 9 SIGNATORIES The signature below indicates that the individual has received and read a copy of this agreement and has the proper authority to, as a representative their agency/governmental entity, to agree to the terms and conditions therein Date Bureau of Alcohol, Tobacco, Firearms and Explosives Date County of Adams, Sheriff’s Office Date County of Arapahoe, Sheriff’s Office See signature page below City of Aurora, Aurora Police Department Date City and County of Denver, Denver Police Department Date Denver District Attorney's Office Date County of Douglas, Sheriff’s Office Date Department of Corrections - Parole Date Department of Homeland Security, Homeland Security Investigations Date County of Jefferson, Sheriff’s Office See signature page below City of Lakewood, Lakewood Police Department Date Rocky Mountain High Intensity Drug Trafficking Area (RMHIDTA) U.S. Attorney’s Office Date City of Arvada, Arvada Police Department Page 231 of 553 10 Date City of Englewood, Englewood Police Department Page 232 of 553 11 Dated this day of , 2021. CITY OF AURORA, COLORADO MIKE COFFMAN, Mayor ATTEST: KADEE RODRIGUEZ, City Clerk APPROVED AS TO FORM: MEGAN PLATT, Assistant City Attorney Page 233 of 553 12 Dated this day of , 2021. CITY OF LAKEWOOD, COLORADO ATTEST: DANIEL J. MCCASKY, Chief of Police Lakewood Police Department City Clerk APPROVED AS TO FORM: Office of the City Attorney Page 234 of 553 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Pieter Van Ry, Sarah Stone DEPARTMENT: Utilities DATE: August 7, 2023 SUBJECT: CB-37 City Municipal Code Changes – Lead Reduction Program DESCRIPTION: Consideration of a Council Bill to amend Englewood Municipal Code to give the City the right to access customer properties for the purpose of verifying water service line material for the City’s Lead Reduction Program. RECOMMENDATION: Utilities staff recommends City Council approve amendments to City Municipal Code Title 12, Chapter 1 to give the City the right to access customer properties for the purpose of verifying water service line material for the City’s Lead Reduction Program (LRP). The Water and Sewer Board recommended City Council approve the amendments to City's Municipal Code Title 12, Chapter 1 during its July 11, 2023 meeting. PREVIOUS COUNCIL ACTION: • July 17, 2023 – Utilities staff reviewed the proposed City Municipal Code changes with City Council during Study Session SUMMARY: The Englewood Utilities Department has initiated its Lead Reduction Program to remove all lead service lines from the City’s distribution system to reduce the potential for lead exposure and promote the safety of the City’s distribution system. The City has contracted with Hazen and Sawyer (Hazen) as its LRP Program Manager and plans to begin lead service line replacement in March 2024. The Environmental Protection Agency’s (EPA) Lead and Copper Rule Revisions (LCRR) requires public water systems to prepare and maintain an inventory of service line materials by October 16, 2024. The rule requires the City to verify service line material on the customer-owned and Utility-owned portions of the service line. Verifying the customer-owned portion of the service line will require the City’s contractors to access to private properties. The proposed amendments to Englewood Municipal Code Title 12, Chapter 1 are crucial for supporting the City's LRP and meeting the requirements of the LCRR. Additionally, the recommended amendments better define unauthorized use of water and where customer responsibility for the service line begins. Also, various Englewood Municipal Code sections within Title 12, Chapter 1 are inconsistent in style and terminology, and therefore the code sections containing updated terminology will be revised simultaneously to implement consistent style and succinct language. The proposed amendments include Englewood Municipal Code Page 235 of 553 Sections: 12-1-1, 12-1-4, 12-1A-3, 12-1A-5, 12-1A-6, 12-1A-7, 12-1A-8, 12-1A-9, 12-1A-10, 12- 1A-11, 12-1B-1, 12-1B-2, 12-1B-4, 12-1B-6, 12-1B-9, 12-1D-1, and 12-1D-3. ANALYSIS: The EPA has established best practices for investigating and verifying service line materials. Additionally, the Colorado Department of Public Health and Environment (CDPHE), acting as the EPA’s primacy agency for the LCRR, requires at least three points of physical verification on a single service line to accurately identify the service line material. Beginning in September 2023, Hazen will coordinate visual inspection inside customer homes, as well as vacuum excavation (potholing) to verify service line material. Hazen will use the results of physical verification of approximately 400 to 500 homes to continuously train a predictive geostatistical model. This model will estimate the probability of service line materials throughout the rest of the City’s service area, thereby saving significant costs to the City. This predictive modeling is a non-physical method of completing a service line inventory that is generally accepted by the EPA. The proposed amendments to City Code Title 12, Chapter 1 defines the City’s right to access properties where the City’s water is used for the purpose of inspecting service line materials. Additionally, the recommended amendments better define unauthorized use of water and where customer responsibility for the service line begins. As lead reduction programs are initiated across the country, water providers have implemented similar changes to operating rules or municipal codes, including Denver Water, Phoenix, Arizona, and Madison, Wisconsin. Englewood Utilities intends to propose additional amendments to the Englewood Municipal Code over the next several months to further support the LRP, however, an accurate service line inventory is necessary to determine the path forward. COUNCIL ACTION REQUESTED: Motion to approve an Ordinance authorizing a Council Bill amending the City of Englewood’s Municipal Code Title 12, Chapter 1 to give the City of Englewood the right to access customer properties for the purpose of verifying water service line material for the City’s Lead Reduction Program. FINANCIAL IMPLICATIONS: The proposed amendments to the City’s Municipal Code does not have financial implications. CONNECTION TO STRATEGIC PLAN: Safety: • Ensure safe drinking water is delivered to customers that meet State and Federal Regulations • Protect public health Infrastructure: • Proactively invest, maintain, and improve the water system infrastructure ATTACHMENTS: Ordinance for Council Bill PowerPoint Presentation Page 236 of 553 1 ORDINANCE COUNCIL BILL NO. 37 NO. _____________ INTRODUCED BY COUNCIL SERIES OF 2023 MEMBER _________________ A BILL FOR AN ORDINANCE AMENDING ENGLEWOOD MUNICIPAL CODE SECTIONS 12-1-1, 12-1-4, 12-1A-3, 12-1A-5, 12-1A-6, 12-1A-7, 12-1A- 8, 12-1A-9, 12-1A-10, 12-1A-11, 12-1B-1, 12-1B-2, 12-1B-4, 12-1B-6, 12- 1B-9, 12-1D-1, AND 12-1D-3 TO ADDRESS CITY RIGHT TO ACCESS PROPERTY FOR INSPECTIONS OF CUSTOMER-SIDE CONNECTIONS AND TO REVISE LANGUAGE OF THOSE CODE SECTIONS FOR CONSISTENT TERMINOLOGY WHEREAS, under Englewood Municipal Code Section 12-1-2, the City Council of the City of Englewood may alter rules and regulations regarding the Municipal Water System to promote public peace, health, and safety; and WHEREAS, the City Council seeks to address the needs of the City and take proactive measures to ensure the water quality at every tap of Utility customers meets the water quality standards specified by the Federal Safe Drinking Water Act, the Environmental Protection Agency (“EPA”), and the Colorado Department of Public Health and Environment (“CDPHE”); and WHEREAS, as a first step in a multi-phase project to achieve these goals, the City requires the ability to access customer property to assess the material and specifications comprising the customer-side service line connecting to the City’s utility system as well as to access other areas of customer property to supply water service consistent with Englewood Municipal Code; and WHEREAS, various Englewood Municipal Code sections are inconsistent in style and terminology or are inefficient to administer, and therefore the code sections containing updated terminology and updates for more efficient administration will be revised simultaneously to implement consistent style, succinct language, and efficiency; and WHEREAS, the Water and Sewer Board has recommended Council adopt changes to Englewood Municipal Code to achieve these goals; and WHEREAS, the Englewood City Council finds and declares that the adoption of amendments to Title 12, Chapter 1 to the Englewood Municipal Code as set forth herein are needed to facilitate the first step of a multi-phase effort at the reduction of lead and Page 237 of 553 2 copper service lines and are proper for the reasonable needs and desires of the City and in the promotion of the public health, safety, and welfare of the City’s residents and visitors. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. Amendment of Englewood Municipal Code Title 12, Chapter 1, Section 12-1-1 of Englewood Municipal Code is hereby amended to read as follows (deleted provisions struck through; new provisions underlined): 12-1-1: Definitions. The following definitions shall apply to As used in this Chapter, the following words and phrases shall have the following meanings: A. Air Gap: A physical separation of the potable and the nonpotable water systems by an air space (air gap). This will be a vertical distance between a supply pipe or faucet supplying potable water and the flood rim of a tank, pumping fixture or other device that holds or collects nonpotable water. The distance between the two (2) will be at least two (2) times the diameter of the potable outlet but never less than one inch (1″). In the case where an emergency bypass of an air gap is needed, an approved reduced pressure principle device shall be installed within the bypass. B. Approved: Accepted by the City as meeting the specification stated or cited in this Chapter. C. Auxiliary Water Supply: Any water supply on or available to the premises other than the purveyor's approved public potable water supply. This auxiliary supply may include water from another purveyor's public potable water supply or any natural source(s) such as a well, spring, river, stream, etc., or reused waters or "industrial fluids." These supplies may be polluted or contaminated or may be objectionable and constitute an unacceptable water source over which the City does not have sanitary control. D. Back Pressure: Backflow caused by a pump, elevated tank, boiler or means that could create pressure within the system greater than the supply pressure. E. Back Siphonage: The flow of water or other liquids, mixtures, or substances into the distribution system of the potable water supply system from any source caused by the sudden reduction of pressure in the potable water supply system. F. Backflow Preventor: A device or means designed to prevent backflow or back siphonage. Bonded Plumber: A person licensed as a master plumber under the laws of the State of Colorado and under bond to the City as provided herein. Page 238 of 553 3 G. Certified Inspector and Tester: A State certified tester from the City will inspect, test, and certify all approved devices. If additional inspectors and testers are needed, the City will provide a list of certified inspectors and testers. H. Check Valve: A self-closing device which is designed to permit the flow of fluids in one direction and to close if there is a reversal of flow. The single check valve is considered to be an approved backflow prevention device only in limited instances and only on individual review by the City. City: The City of Englewood, Arapahoe County, Colorado, vested with the authority and responsibility for the enactment and enforcement of this Chapter, acting by and through its City Council under the home rule charter, statutes and ordinances of said City of Englewood. City Manager: Chief administrative officer of the City of Englewood. I. Contamination: An impairment of the quality of the potable water by sewage, industrial fluids or waste liquids, compounds or other materials to a degree which creates an actual hazard to the public health through poisoning or through the spread of disease. J. Critical Level: Level C-L or C/L marking on a backflow prevention device or vacuum breaker which is a point conforming to approved standards and established by the testing laboratory (usually stamped on the device by the manufacturer) which determines the minimum elevation above the flood-level rim of the fixture or receptacle served at which the device may be installed. When a backflow prevention device does not bear a critical level marking, the bottom of the vacuum breaker, combination valve, or the bottom of any such approved device shall constitute the critical level. K. Cross Connection: Any physical arrangement whereby a public water supply is connected, directly or indirectly, with any other water supply system, sewer, drain, conduit, pool, storage reservoir, plumbing fixture, or other device which contains, or may contain, contaminated water, sewage, or other waste or liquid of unknown or unsafe quality which may be capable of contamination to the public water supply as a result of backflow. Bypass arrangements, jumper connections, removable sections, swivel or changeover devices, and other temporary or permanent devices through which, or because of which, backflow could occur are considered to be a cross connection. L. Cross Connections Controlled: A connection between a potable water supply system and a nonpotable water system with an approved backflow prevention device properly installed that will continuously afford the protection commensurate with the degree of hazard. M. Customer's-Side Service Line System: 1. Residential. The water service line from the curb line stop box into the structure to the first shut-off valve inside the property. 2. Industrial and Commercial. The water line from the water main to the structure. Page 239 of 553 4 3. All of the building's plumbing is part of the Ccustomer's-sSide Sservice Lline system. N. Degree of hazard: The evaluation of the potential risk to public health and the adverse effect of the hazard upon the potable water system. There are several categories, some of which are health hazard, plumbing hazard, pollutional hazard and system hazard. O. Distribution System: The network of water pipes, hydrants, valves and appurtenances including mains and service lines, owned and operated by the City and/or Utility Includes the network of conduits used for the delivery of water from the Ssource to the Ccustomer's sSide Service Line system. P. Double Check Valve Assembly: An assembly of two (2) independently operating, approved check valves in one casing with tightly closing shut-off valves on each side of the check valves, plus properly located test cocks for the testing of each check valve. The entire assembly shall meet the City's approval. Q. Flood-Level Rim: The edge of the receptacle from which water overflows. R. Galvanized Requiring Replacement (“GRR”): A water service line constructed of galvanized iron or steel, that is currently or has previously been connected to lead material. The Utility will assume all galvanized material in the distribution system to be classified as GRR. The term includes the Customer-Side Service Line and/or the Utility-Side Service Line. S. Hose Connection Vacuum Breakers: A single check with atmospheric vacuum breaker vent. Installation is directly on hose bibbs, service sinks and wall hydrants, not for continuous pressure. T. Industrial Fluids System: Any system containing a fluid or solution which may be chemically, biologically or otherwise contaminated or polluted in a form or concentration such as would constitute a health, system, pollutional, or plumbing hazard if introduced into an approved water supply. This may include, but not be limited to: polluted or contaminated waters; all types of process waters and reused waters originating from the public potable water system which may have questionable sanitary quality; chemicals in fluid form; plating acids and alkalies; circulated cooling waters that are chemically or biologically treated or stabilized with toxic substances; contaminated natural waters such as from wells, springs, streams, rivers, irrigation canals or systems, etc.; oils, gases, glycerine, paraffins, caustic and acid solutions and other liquid and gaseous fluids used in industrial or other purposes or for fire fighting purposes. U. Irrigation System: An automated or mechanical means of watering (turf, shrubs, trees, plants or any organic growth). V. Lead Service Line (“LSL”): A water service line constructed of lead. The term includes the Customer-Side Service Line and/or the Utility-Side Service Line. Page 240 of 553 5 W. License: The permission to use water for the purpose specified in the authority to use. X. Licensee: Any person, corporation, governmental authority or agency authorized to use water under a license. Y. Nonpotable Water: Water that is not safe for human consumption or that is of questionable potability. Z. Plumbing Contractor: A person, firm, corporation or other entity licensed by the State of Colorado as a master plumber and under bond to the City to perform plumbing work in the City. AA. Pollution: The presence of any foreign substance (organic, inorganic, radiological or biological) in the water that may degrade the water quality so as to constitute a hazard. BB. Potable Water: Water free from impurities in amounts sufficient to cause disease or harmful physiological effects, conforming with State of Colorado drinking water regulations. CC. Premises: A tract of land with buildings thereon. DD. Property: Property as defined in EMC § 15-1-2. EE. Property Owner: A person or legal entity having a possessory interest, legal or equitable, in property, which defined term includes an estate, trust or lien. FF. Reduced Pressure Principle Device: An assembly of two (2) independently operating, approved check valves in one casing with an automatically operating differential relief valve between the two (2) check valves, tightly closing shut-off valves on either side of the check valves plus properly located test cocks for the testing of the check and relief valves. The entire assembly shall meet the design and performance specifications and approval of the City. GG. Reuse Water: Any or all water that has been from the potable water supply and mixed, used or altered in any way that or would constitute a health or potential hazard. HH. Service Line or Pipe: All piping lawfully installed between the water main (or an extension thereof) and the licensee's property lines. II. Source: Includes all components of the facilities utilized in the production, treatment, storage, and delivery of water to the distribution system. JJ. Submerged Inlet: A water pipe or extension thereto from a public water supply terminating in a tank, vessel, fixture or appliance which may contain water of questionable quality, waste or other contaminant and which is unprotected against backflow. KK. Utility-Side Service Line: The City-owned portion of the water service line from the water main to the inlet of the curb stop, including the curb stop. Page 241 of 553 6 LL. Utility System: The source facilities and the distribution system and shall include all those facilities of the water system under the complete control of the utility up to the point where the customer-side service line system begins. MM. Vacuum: Any pressure less than that exerted by the atmosphere. NN. Vacuum Breaker, Atmospheric Nonpressure, Type: A vacuum pressure breaker designed so as not to be subjected to static line pressure or installed where it would be under pressure for not more than twelve (12) hours in any twenty four (24) hour period. OO. Vacuum Breaker, Pressure Type: A vacuum breaker designed so as to be subjected to static line pressure. The single unit will be supplied with shut-off valve on each side and ball type test cocks. PP. Water Service Connection: The terminal end of a service connection from the public potable water system where the water purveyor utility loses jurisdiction and sanitary control over the water system (see definition of customer's -side service line system). There shall be no unprotected takeoffs from the service line ahead of any meter or backflow prevention device located at the point of delivery to the customer's water system. Service connection shall also include water service connection from a fire hydrant and all other temporary or emergency water service connections from the public potable water system. QQ. Water System: All plant facilities and distribution mains owned and operated by the City of Englewood that are involved in the production, treatment, or distribution of water to the City’s customers. and shall be considered as made up of two (2) parts: the utility system and the customer system. Section 2. Amendment of Englewood Municipal Code Title 12, Chapter 1, Section 12-1-4 of Englewood Municipal Code is hereby amended to read as follows (deleted provisions struck through; new provisions underlined): 12-1-4: Work to be Done by Plumbers. All work on water pipes or fixtures which are connected to the City's potable water distribution system and which are located from the curb stop to a point one foot (1') inside the building shall be accomplished by a licensed pPlumbering Contractor under bond to the City. Section 3. Amendment of Englewood Municipal Code Title 12, Chapter 1A, Section 12-1A-3 of Englewood Municipal Code is hereby amended to read as follows (deleted provisions struck through; new provisions underlined): 12-1A-3: Rights Under License. A License shall only grant the Licensee the right to utilize water under the terms of the License, and creates no ownership or other rights. The City may revoke a License by sending notice via first class mail to the affected property for: violation of any term of the License; violation of any provision of this Chapter, EMC regarding the City’s Water Page 242 of 553 7 System or Utility System, or applicable City regulations; Neither the granting of such license nor any act, circumstance or condition shall operate to create any vested or proprietary right whatsoever in the licensee, but shall give the licensee the right to use water for the purposes specified in the license, subject to termination of such license as herein provided. Every license to use water shall be subject to revocation and shut-off by the City and shall be subject to the charge of reasonable expenses after notice for items required by this Title pertaining to use of water when the property owner refuses to comply with the Englewood Municipal Code, without obligation upon the City to refund or repay any consideration which may have been given for the granting of such license, and without any obligation upon the City whatsoever, for any one or more of the following reasons: A. Ffailure to pay proper charges when due; B. Failure to comply with this Chapter and applicable rules and regulations of the City. C. Use of water for a purpose not authorized by license. D. Wwaste of water; or any other basis authorized by law. When a License is so revoked, the City shall retain any consideration paid to obtain a License, and the Licensee shall reimburse the City its reasonable expenses. Section 4. Amendment of Englewood Municipal Code Title 12, Chapter 1A, Section 12-1A-5 of Englewood Municipal Code is hereby amended to read as follows (deleted provisions struck through; new provisions underlined): 12-1A-5: Turning on of Water. A. The City will turn water on at any premises lawfully entitled to be served, upon request. Except upon written order of the City, no one other than a duly authorized employee of the City under any condition or circumstance shall turn on water for use in any premises when the water shall have been turned off by the City, or at its order; provided, however, that a licensed plumber Plumbing Contractor may turn on water to the minimum extent necessary for the purpose of testing work, after which the same shall be turned off. The City shall not be liable for any damages resulting in the turning on of the water either by City employees or a licensed plumber Plumbing Contractor. B. Any Person violating this section shall pay the City unauthorized use fee, double the City’s costs and labor to repair any damage caused, and double the cost of water that would have been payable for the lawful use of water Section 5. Amendment of Englewood Municipal Code Title 12, Chapter 1A, Section 12-1A-6 of Englewood Municipal Code is hereby amended to read as follows (deleted provisions struck through; new provisions underlined): 12-1A-6: Sprinkling Irrigation Privileges. Page 243 of 553 8 A. Unless water is used through a City meter, a License shall be required A sprinkling irrigation privilege to irrigate lawns, shrubs and gardens, will not be granted unless a license is taken for all purposes for which water is used on the premises served, and no privilege for irrigation will be issued for less than the season rate unless the licensee is receiving and paying for water through a meter, in which case no separate sprinkling privilege is required. B. City Council (or the City Manager’s designee, in times of emergency) may impose restrictions on water usage and/or irrigation While it is the purpose of the City to maintain a water supply adequate to meet all needs of the inhabitants of the City, including irrigation without restrictions, there are many elements which make it uncertain whether the supply can always be adequate for all, and therefore, in times of extreme shortage or operation difficulties, water service for irrigation shall be curtailed by such restrictions as are deemed necessary by the City Council in the case of shortage, or by the City Manager or designee in the case of operation difficulties, or emergencies. Section 6. Amendment of Englewood Municipal Code Title 12, Chapter 1A, Section 12-1A-7 of Englewood Municipal Code is hereby amended to read as follows (deleted provisions struck through; new provisions underlined): 12-1A-7: Unauthorized Use, Waste of Water. A. Unauthorized Use. Any unauthorized use of water supplied by the City shall be paid for at the same rate as if the same had been authorized, together with the cost incurred by the City in discovering and eliminating the unauthorized use. Such payment shall not in any way affect any liability or penalty which may be imposed for such unauthorized use. Unauthorized use of water from the distribution system is prohibited, including using water before a meter is set, tampering with a meter, illegally diverting water, or using water the City has turned off under EMC § 12-1-D4 before the City restores service. In addition to any applicable liability or penalties under law, any unauthorized water use will be charged at the same rate as authorized use, the unauthorized use of water fee set by City Council, plus any additional costs incurred by the City arising out of the unauthorized use. B. Waste. Water shall be used only for beneficial purposes and shall never be wasted. Water shall not be left running to keep pipes from freezing. Water for irrigation of lawns shall only be used during the hours and in the manner specified by the City Manager’s or designee. No spray or sprinkler shall be placed in a position to throw water on a public walk, driveway, street or alley while irrigating adjacent areas, unless except insofar as may be absolutely necessary. Section 7. Amendment of Englewood Municipal Code Title 12, Chapter 1A, Section 12-1A-8 of Englewood Municipal Code is hereby amended to read as follows (deleted provisions struck through; new provisions underlined): 12-1A-8: Damage to Fixtures, Responsibility. Page 244 of 553 9 The City, in any capacity, shall not be responsible or liable for damages to the Customer-Side Service Line or any privately owned piping or fixtures served by or connected to the water system, whether located in or upon public or private property, nor for damage to any person whomsoever or property whatsoever resulting from the existence, use, arrangement of or accident to such water system; except, however, under the following conditions: A. Residential Water Lines. 1. The City shall repair, replace, lower or thaw residential service lines within the public right of way as defined under § EMC 11-7-2, and under the following conditions: a. A leak exists or occurs in that section of the licensee's service within the public right of way, i.e., between the curb stop and the supply main. b. The service line within the public right of way shall freeze or fail as a result of freezing. 2. Should the City determine that the licensee or the consumer service line in the public right of way must be lowered because of exposure to damage from freezing, the licensee or consumer shall take necessary precautions to either: a. Lower the service line from curb stop to the premises served, or b. Take whatever precautions would be necessary to avoid service line failure between curb stop and the licensed premises by means approved by the City. 3. Should the licensee or consumer fail or refuse to take such necessary precautions to avoid failure of the service line from curb stop to the licensed premises, then the City shall not be held liable or accountable for damages because or on account of such failure. 4. In the event that the licensee or consumer desires or shall desire to lower the service line from the licensed premises to the curb stop, the City shall also lower the service line from curb stop to the supply main in order to avoid failure of said line in the public right of way. The City may take such other or different action to provide that the service line in the public right of way shall not fail as a result of the lowering of the service line from the licensed premises to the curb stop. 5. In the event that the City is requested to and does thaw or otherwise provide related services for a frozen or cold-damaged residential service line that is not in the public right of way but is on a licensee's private property, the licensee shall pay a fee to the City amounting to the fair market value of the services provided for thawing or other aid in restoring service to the Page 245 of 553 10 property, but in no event less than one hundred dollars ($100.00). This fee shall not be imposed if the licensee's request for thawing or other services is his or her first such request and if the licensee has followed any and all previous recommended precautions from the City regarding the location of the lines and the risk of freezing. B. Commercial Service Lines. The City shall not be responsible for the repair or replacement of service lines to commercial properties, or properties with combined residential and commercial use where these lines are a part of the Ccustomer's-Side Service Line system as defined in this Title. C. Permittee Responsibility. In any event, the City is not obligated to perform such services nor to provide any protection from leaks or freezing on either residential or commercial property, which is solely the responsibility of the permittee. Section 8. Amendment of Englewood Municipal Code Title 12, Chapter 1A, Section 12-1A-9 of Englewood Municipal Code is hereby amended to read as follows (deleted provisions struck through; new provisions underlined): 12-1A-9: Right to Shut Off Water for Repairs. The City reserves the right at any time, but after reasonable notice to all concerned, to shut off the water in its mains for the purpose of making repairs, extension or for other useful or necessary purposes. In case of emergency, reasonable notice is waived. No water user shall be entitled to any damages or to have any portion of payment refunded for any stoppage of water supply, however the same may be occasioned. All persons having boilers or other appliances on their premises, depending on pressure of water in pipes, or upon a continual supply of water, shall provide at their own expense suitable safety appliances to protect their property in case of stoppage of water supply or loss or pressure. Section 9. Amendment of Englewood Municipal Code Title 12, Chapter 1A, Section 12-1A-10 of Englewood Municipal Code is hereby amended to read as follows (deleted provisions struck through; new provisions underlined): 12-1A-10: Protection from Freezing. All licensees shall keep their service pipes Customer-Side Service Lines, stop valves, heaters, fixtures and other apparatus for the use of water in good repair and protected from freezing or any other damage at their own expense. The property owner shall place and maintain a brass stop and waste valve inside the basement of any building in which water is to be used, at the lowest point practicable on the Customer-Side Service Lineservice pipe entering the building and as close as feasible to the wall through which said Customer-Side Service Lineservice pipe enters and easily accessible so that the water may be turned on or off by the user or occupant. When necessary, the licensee shall cut off the water supply from the premises at the stop and waste valve, and drain the water from the pipes to prevent freezing and other damage. Section 10. Amendment of Englewood Municipal Code Page 246 of 553 11 Title 12, Chapter 1A, Section 12-1A-11 of Englewood Municipal Code is hereby amended to read as follows (deleted provisions struck through; new provisions underlined): 12-1A-11: Inspection; Access to Premises Property. For inspection of Customer-Side Service Lines, meter installation, and meter reading purposes, duly authorized employees of the City shall be allowed free access at all reasonable hours to any building or premises property where water is used. All such employees shall carry a City identification card signed by the City Manager and shall display the same upon request to the occupant of any premises to which access is sought. The Areas of the property deemed reasonably necessary by the City to conduct such inspection, including the Ccustomer's-Side Service Line, system shall be open for inspection at all reasonable times to authorized representatives of the City to inspect for safety hazards, Customer-Side Service Line material and specifications, and violation of EMC.to determine whether cross-connections or other structural or sanitary hazards, including violations of these regulations, exist. When such a condition becomes known, Should access be denied or the City discover a violation of EMC, or State or Federal statutes relating to plumbing and water supplies or the regulations adopted pursuant thereto, the City may deny or immediately discontinue service to the premises by providing for a physical break in the service line until the customer has corrected the condition(s) in conformance with State and City statutes relating to plumbing and water supplies and the regulations adopted pursuant thereto. The City shall not be liable for any damages resulting from any inspection or disconnection of service under this Chapter. Section 11. Amendment of Englewood Municipal Code Title 12, Chapter 1B, Section 12-1B-1 of Englewood Municipal Code is hereby amended to read as follows (deleted provisions struck through; new provisions underlined): 12-1B-1: Permit and Notice Required. A. Permit. Except as herein otherwise specifically authorized, no person shall it shall be unlawful for any person to make any physical connection to any of the pipes or facilities of the City water system Water System, or to any privately owned or publicly owned extensions thereof, without the property owner (or owner’s authorized agent) of the Property to be served first applying for a City permit making application therefor. Such application shall be in writing and shall be filed with the City by the owner of the property to be served or his authorized agent. Such application shall contain a full description of the premises to be served and the fixtures to be supplied. A permit for the work will be granted upon the condition that all rules and specifications respecting connections shall be fully observed. B. Notice. Any person shall give notice to the City about to install service pipe shall give notice at the City fixing the day on which he wishes the City main to be tapped. Such notice shall be given at least twenty four (24) WORKING hours before tapping a City main to install a Customer-Side Service Line the tap is to be made. The corporation Page 247 of 553 12 valve inserted in the distribution main and the Customer-Side Service Line service pipe to be laid must be of the size specified in the permit. Section 12. Amendment of Englewood Municipal Code Title 12, Chapter 1B, Section 12-1B-2 of Englewood Municipal Code is hereby amended to read as follows (deleted provisions struck through; new provisions underlined): 12-1B-2: Tapping and Cutting Off Mains. A. At the applicant’s expense, the City shall tap all mains. The corporation valve inserted in the main and the service pipe Customer-Side Service Line laid must be the size specified in the permit. B. Only the City or a licensed and bonded plumber Plumbing Contractor may cut off from mains. Should the applicant request the City perform this work, the applicant shall pay double the City’s costs for the cutoff, including the City's labor and materials. If an abandoned water service is not disconnected by the owner or by the City at the owner’s request at the main in a timely manner, the property owner shall pay double the City’s costs, including labor and materials, plus the City fee to disconnect service from the main. Section 13. Amendment of Englewood Municipal Code Title 12, Chapter 1B, Section 12-1B-4 of Englewood Municipal Code is hereby amended to read as follows (deleted provisions struck through; new provisions underlined): 12-1B-4: Service Pipe Specifications. A. Specifications of Service Pipe: Customer-Side Service Lines and Utility-Side Service Lines service pipe must be of the following specifications: 1. Copper Pipe: All service pipe shall be not less than Type "K" soft copper tubing conforming to standard specifications. 2. Service Pipes: Service pipes shall extend into the premises or riser as specified, and in no case shall be smaller than three-fourths inch (¾") diameter. All sillcocks, faucets or hydrants used for irrigation purposes shall be fed through a three-fourths inch (¾") pipe or larger. 3. Other materials may be used only upon the express approval of the City. B. Placement of Service Pipe: All service pipes must be laid at least five feet (5') below the established grade of the street in which they shall be laid and in all places at least five feet (5') below the surface of the ground. All service pipes shall be located such that there is a five foot (5') minimum horizontal and an eighteen inch (18') minimum vertical separation from all other underground utilities including, but not limited to, sewer pipes, gas pipes, electrical, telephone and other cables. All plumbing shall be so installed and of such material as to withstand safely the perils surrounding their condition of operation and use. Section 14. Amendment of Englewood Municipal Code Page 248 of 553 13 Title 12, Chapter 1B, Section 12-1B-6 of Englewood Municipal Code is hereby amended to read as follows (deleted provisions struck through; new provisions underlined): 12-1B-6: User to Provide Curb Stop. Every owner of property using water shall provide a curb valve stop on the service pipe outside of his/her their premises protected by a valve box, by means of which the water may be turned on or off from the premises by any employee of the City, and shall maintain the same in good working order. In the case of properties where the domestic water supply is connected to a fire line, the domestic water connection to the fire line shall be at the property line and both the fire line and the domestic water service shall be protected with curb valves by which the two services may be shut off independently at property line. The valve box shall be so maintained that at all times it will be conveniently accessible in good order for turning water on and off with the cover at the level of the adjacent ground. If the Property Owner fails to maintain the curb stop in working order, the City will replace the curb stop and a fee for labor shall be assessed as set by City Council, which shall be due and payable by the Property Owner and shall be billed to the property by the City within thirty (30) days after the service has been performed. If City personnel are required to clean out a Property Owner's valve box, for whatever reason, either at the request of the Property Owner for an emergency or for a delinquent turn-off, a fee as set by City Council for labor shall be assessed, which of thirty dollars ($30.00) shall be due and payable by the Property Owner and shall be billed to the Property by the City within thirty (30) days after the service has been performed. The City does not assume any obligation nor acquire any liability whatsoever for damage to the connecting Property or any portion thereof or to any other properties caused by or resulting from any maintenance or construction work undertaken under this Section. Section 15. Amendment of Englewood Municipal Code Title 12, Chapter 1B, Section 12-1B-9 of Englewood Municipal Code is hereby amended to read as follows (deleted provisions struck through; new provisions underlined): 12-1B-9: Street Cuts. Any licensed plumber Plumbing Contractor who shall make a cut or excavation in a street for the purpose of installing a service pipe shall first obtain a permit from the City and shall pay the charges established by Section EMC § 11-3C-3 of this Code to cover replacement of the pavement or other surfacing. Section 16. Amendment of Englewood Municipal Code Title 12, Chapter 1D, Section 12-1D-1 of Englewood Municipal Code is hereby amended to read as follows (deleted provisions struck through; new provisions underlined): 12-1D-1: Rates. Page 249 of 553 14 A. Flat Rate. A licensee on scheduled flat rate shall pay the full rate as set shall be fixed by resolution of the City Council and in effect at the time, for all the uses and purposes for which water may be used under thehis/her license without respect to the quantity of water which shall be used. No deduction will be made from the rates on account of any fixture not being used. If fixtures have been installed that are not wanted, a bonded plumber Plumbing Contractor, upon obtaining a proper permit, may completely disconnect them from service pipes and waste pipes, whereupon, after inspection, the charge for their use will cease during the time they shall remain so disconnected. B. Metered Rate. The rates for metered service shall be fixed by resolution of the City Council; provided, however, that one bill, for all water used, composed of the sum of minimum charges for each meter used and a single quantitative charge for all water used, may be issued in the following cases: 1. Where water service is taken through a combination of meters, or through meters on two (2) or more service pipes, if water serviced through each of such meters and service pipes shall be delivered and used on the same property holding in the prosecution of one general purpose, or a single enterprise on an integrated holding of land, undivided by public streets, roads or alleys; and 2. For all public schools, even though the meters may be situated on separate properties. Section 17. Amendment of Englewood Municipal Code Title 12, Chapter 1D, Section 12-1D-3 of Englewood Municipal Code is hereby amended to read as follows (deleted provisions struck through; new provisions underlined): 12-1D-3: Refund of Charges. Refunds of scheduled charges will be made for any portion of a property which shall have been vacant, provided such vacancy shall have been reported to the City in writing and athe vacancy inspection shall have been made. Refunds shall date from receipt of notice. Refunds shall also be allowed in cases where services are turned off by the City and proper charge for such turnoff shall have been paid. In the event of excessive consumption caused by leaking pipes and fixtures on the customer's side of the meter, up to a fifty-percent (50%) credit for loss of water over normal consumption recorded for similar prior periods will be given if a plumber Plumbing Contractor is under a contract to make repairs within seventy-two (72) hours after discovery of such leak or if the owner can provide documentation or proof of repairs performed by owner within seventy-two (72) hours after discovery of the leak. Section 18. General Provisions Applicable to this Ordinance Page 250 of 553 15 The following general provisions and findings are applicable to the interpretation and application of this Ordinance: A. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this Ordinance or its application to other persons or circumstances. B. Inconsistent Ordinances. All other Ordinances or portions thereof inconsistent or conflicting with this Ordinance or any portion hereof are hereby repealed to the extent of such inconsistency or conflict. C. Effect of repeal or modification. The repeal or modification of any provision of the Code of the City of Englewood by this Ordinance shall not release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such provision, and each provision shall be treated and held as still remaining in force for the purposes of sustaining any and all proper actions, suits, proceedings, and prosecutions for the enforcement of the penalty, forfeiture, or liability, as well as for the purpose of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in such actions, suits, proceedings, or prosecutions. D. Safety Clauses. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Englewood, that it is promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. This Safety Clause is not intended to affect a Citizen right to challenge this Ordinance through referendum pursuant to City of Englewood Charter 47. E. Publication. Publication of this Ordinance may be in the City’s official newspaper, the City’s official website, or both. Publication shall be effective upon the first publication by either authorized method. F. Actions Authorized to Effectuate this Ordinance. The Mayor is hereby authorized and directed to execute all documents necessary to effectuate the approval authorized by this Ordinance, and the City Clerk is hereby authorized and directed to attest to such execution by the Mayor where necessary. In the absence of the Mayor, the Mayor Pro Tem is hereby authorized to execute the above-referenced documents. The execution of any documents by said officials shall be conclusive evidence of the approval by the City of such documents in accordance with the terms thereof and this Ordinance. City staff is further authorized to take additional actions as may be necessary to implement the Page 251 of 553 16 provisions of this Ordinance, and has authority to correct formatting and/or typographical errors discovered during codification. G. Enforcement. To the extent this ordinance establishes a required or prohibited action punishable by law, unless otherwise specifically provided in Englewood Municipal Code or applicable law, violations shall be subject to the General Penalty provisions contained within EMC § 1-4-1. Page 252 of 553 Lead Reduction Program: City Code Amendments Presented By Utilities Deputy Director – Business Solutions and Engineering, Sarah Stone Page 253 of 553 Lead Reduction Program Schedule 1st 100 DAYS LSL Inventory Development LSL Replacement Plan Development Initial LSL Replacement Construction Phase January 2024 March 2024 December 2024July 2023 Aug. 2023 – City Code Amendments Phase 1 Early Sept. 2023 – Public Meeting Mid Sept. 2023 – Service Line Verification: 500 homes Hazen & Sawyer Notice to Proceed March 2023 Oct. 2024 – Regulatory Deadline for Service Line Inventory and LSL Replacement Plan Page 254 of 553 Physical Verification of Service Lines PotholeVisual 400 to 500 homes: Sept 2023 to Dec 2023 > 3 points of physical verification required Customers to sign an acknowledgement Brita filter pitchers available upon request Example of Vacuum Excavation, or “potholing”Page 255 of 553 Proposed Code Amendments Today (Phase 1): Required to meet federal regulations Access private property for service line potholing and visual inspection Clearly define customer’s side of the service line Add definitions to support the LRP Define unauthorized use and waste of water Future (Phase 2): Establish financial conditions of the LRP Define City and customer responsibilities regarding service line replacements Water and Sewer Board recommended City Council approval during its July 11, 2023 meeting Page 256 of 553 Questions?Page 257 of 553 Thank you Page 258 of 553 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Stephanie Carlile DEPARTMENT: City Clerk's Office DATE: August 7, 2023 SUBJECT: CB-38 District 3 Recall Special Election Certification DESCRIPTION: Recall Special Election RECOMMENDATION: Staff recommends Council approve Bill for an Ordinance adding a District 3 recall to the Recall Special Election set for October 3, 2023. PREVIOUS COUNCIL ACTION: On July 17, 2023, Council approved on first reading to set a recall special election date of October 3, 2023 for District 1 and District 2. On July 24, 2023, Council approved a contract with Community Resource Services of Colorado, LLC for election administration for the recall special election. SUMMARY: On April 19, 2023 affidavits to recall District 1 Council Member (Mayor) Othoniel Sierra, District 2 Council Member Chelsea Nunnenkamp, District 3 Council Member Joe Anderson and At- Large Council Member Cheryl Wink were filed with the City Clerk. Approved petitions began to circulate on May 7, 2023. A recall petition for District 3 Council Member Joe Anderson was timely filed, deemed sufficient, and has been certified. Per State law and City Charter §34, the municipal clerk shall submit a filed recall petition, together with a certificate of its sufficiency, to the governing body at the first meeting following expiration of the period within which a protest may be filed or at the first meeting of such body following the determination of a hearing officer that a petition is sufficient, whichever is later. Council shall set a date for a recall election to be held not less than sixty (60) days nor more than one hundred twenty (120) days after filing of the recall petition unless within said period of time a general municipal election, a special municipal election or a general state election is to be held. A copy of the recall petitions are on file and available for review in the City Clerk's office. The recommended date to hold a special election within said timeframe is Tuesday, October 3, 2023, to be conducted by mail in ballot only. This will include District 1, 2, and 3. ANALYSIS: Page 259 of 553 City Council (pending 2nd reading) set October 3, 2023 for a Special Election by mail ballot for the voters to determine whether Chelsea Nunnenkamp shall be recalled from the office of Englewood City Council Member representing District 2, Othoniel Sierra shall be recalled from the office of Englewood City Council Member representing District 1. Council Member Cheryl Wink resigned office on July 17, 2023 and will not be included in the recall election. An additional recall question must be added to the October 3, 2023 Recall Special Election date for voters to determine whether Joe Anderson shall be recalled from the office of Englewood City Council Member District 3. COUNCIL ACTION REQUESTED: Approve a Bill for an Ordinance adding a District 3 recall question to the October 3, 2023 Special Election ballot. FINANCIAL IMPLICATIONS: The additional costs were approved by council in Budget Supplemental #3 on July 17 and the contract with Community Resource Services of Colorado on July 24. If a Council Member is recalled by the majority vote, the office is deemed vacant and shall be filled at an election called by Council not less than 60 days nor more than 120 days after the recall election (December 2, 2023 - January 31, 2024). ATTACHMENTS: Council Bill #38 District 3 Recall Certification Page 260 of 553 .lewoodCITYCLERK'S OFFICE MEMORAN DUM TO:Mayor Sierra and City Council Members FROM:Stephanie Carlile,City Clerk DATE:July 13,2023 SUBJECT:Recall Petition —District Ill State of Colorado ) )ss County of Arapahoe ) I,the undersigned,do hereby certify,pursuant to Englewood Charter Section 34, that the District 3 Recall Petition filed with the City Clerk's Office on July 6,2023 has been reviewed and it has been determined to be valid r/rd’ufficient. / ftép~anieCarlile,City Clerk Attest: Jacldé non,Senior Deputy City Clerk /, :1 cc:Shawn Lewis,City Manager Tamara Niles,City Attorney Page 261 of 553 1 ORDINANCE COUNCIL BILL NO. 38 NO. _____________ INTRODUCED BY COUNCIL SERIES OF 2023 MEMBER _________________ A BILL FOR AN ORDINANCE CALLING A SPECIAL MUNICIPAL MAIL BALLOT ELECTION FOR OCTOBER 3, 2023, TO DETERMINE WHETHER THE FOLLOWING CITY COUNCIL MEMBER WILL BE RECALLED FROM OFFICE: JOE ANDERSON, DISTRICT 3. WHEREAS, Englewood Home Rule Charter §34, as supplemented by C.R.S. § 31-4-501 et seq., provides for the process of creating, authorizing, circulating, signing and filing petitions to call for a recall election for any elected official within the City; and WHEREAS, on July 6, 2023, a petition for recall for Council Member Joe Anderson was filed with the City Clerk; and WHEREAS, on July 13, 2023, the City Clerk determined the petition contained the requisite information and signatures numbering at least twenty-five percent (25%) of the registered electors voting for all the candidates for the elected officer’s respective office in the last preceding general municipal election; and WHEREAS, pursuant to City Charter §34 and C.R.S. § 31-4-501 et seq., the City Clerk shall submit a filed recall petition, together with a certificate of its sufficiency, to the governing body of such municipality at the first regular meeting of such body following the date of filing, and City Council shall set a date for a recall election to be held not less than sixty (60) days nor more than one hundred twenty (120) days after filing of the recall petition unless within said period of time a general municipal election, a special municipal election or a general state election is to be held; and WHEREAS, to act in accordance with the provisions of City Charter §34 and C.R.S. § 31-4-501 et seq. regarding setting the date for special elections, the City Council must set a date for a special election to take place within the 60 to 120 days following the date of filing of the petition, less the 32 days prior to the general election of November 7, 2023, during which no special election may take place in accordance with C.R.S. § 31-10-108. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. The City Council of the City of Englewood, Colorado, hereby calls a Special Election by mail ballot for October 3, 2023 for the registered electors of City Council District 3 to determine whether Joe Anderson shall be recalled from the office of Englewood City Council Member representing District 3. Page 262 of 553 2 Section 2. The following ballot title and ballot question is hereby set: SHALL JOE ANDERSON BE RECALLED FROM THE OFFICE OF CITY COUNCIL MEMBER? Section 3. General Provisions Applicable to this Ordinance The following general provisions and findings are applicable to the interpretation and application of this Ordinance: A. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this Ordinance or its application to other persons or circumstances. B. Publication. Publication of this Ordinance may be in the City’s official newspaper, the City’s official website, or both. Publication shall be effective upon the first publication by either authorized method. C. Actions Authorized to Effectuate this Ordinance. The Mayor is hereby authorized and directed to execute all documents necessary to effectuate the approval authorized by this Ordinance, and the City Clerk is hereby authorized and directed to attest to such execution by the Mayor where necessary. In the absence of the Mayor, the Mayor Pro Tem is hereby authorized to execute the above-referenced documents. The execution of any documents by said officials shall be conclusive evidence of the approval by the City of such documents in accordance with the terms thereof and this Ordinance. City staff is further authorized to take additional actions as may be necessary to implement the provisions of this Ordinance, and has authority to correct formatting and/or typographical errors discovered during codification. Page 263 of 553 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Darren Hollingsworth DEPARTMENT: Community Development DATE: August 7, 2023 SUBJECT: Second Reading of Ordinance to Assign Englewood's 2023 Private Activity Bond Allocation to Colorado Housing and Finance Authority DESCRIPTION: The Colorado Housing and Finance Authority (CHFA) has requested the city to assign its 2023 Private Activity Bond (PAB) allocation to their organization. In previous years, the city has allowed its PAB to revert back to the statewide pool. RECOMMENDATION: Staff recommends that council authorize an Ordinance authorizing the assignment of Englewood's 2023 Private Activity Bond (PAB) capacity to the Colorado Housing and Finance Authority (CHFA) to support first-time homebuyer programs and affordable housing opportunities in Englewood. PREVIOUS COUNCIL ACTION: Since 2016, Englewood has not received an allocation request for PAB assignment and the bonding capacity has reverted to the Colorado Department of Local Affairs (DOLA) for use by the statewide pool. In 2015, Englewood assigned its PAB capacity to CHFA to support first-time homebuyer programs and affordable housing opportunities. SUMMARY: Each year DOLA allocates the annual PAB bonding capacity to jurisdictions based on population. This year Englewood has a $2,037,821 PAB allocation and is required to use or assign the allocation by September 15, 2023. What is a Private Activity Bond? A PAB is not cash; rather it is a mechanism to finance a private sector project using tax exempt bonding authority. Eligible projects include a variety of community and economic development projects such as housing, infrastructure, manufacturing, and higher education. Since 2016 Englewood allowed the PAB allocation to revert to DOLA for use in the statewide pool. This action was taken because no eligible projects came forward and an eligible recipient did not request Englewood’s allocation. ANALYSIS: Assignment options: Page 264 of 553 1. Assign the 2023 PAB allocation to an eligible agency, such as CHFA. This year CHFA is requesting Englewood's 2023 PAB allocation to support local affordable housing projects and initiatives. 2. Assign the 2023 PAB allocation to an eligible project or development project that is requesting the bonding capacity to support an eligible project in Englewood. This year an eligible project has not requested the city’s 2023 PAB allocation. 3. Allow the 2023 PAB allocation to revert back to DOLA. No further action is necessary to allow this to happen and the bonding capacity will revert back to the statewide pool. COUNCIL ACTION REQUESTED: Staff recommends authorizing the assignment of Englewood's 2023 PAB allocation in the amount of $2,037,821 to CHFA to support and enhance affordable housing options in Englewood. FINANCIAL IMPLICATIONS: There are no direct financial costs to the City of Englewood associated with this council action. CONNECTION TO STRATEGIC PLAN: Community Wellbeing Goal: Explore and implement opportunities to increase affordable housing opportunities in Englewood, specifically opportunities for funding affordable housing programs from the State of Colorado, including Proposition 123. Assigning Englewood's 2023 PAB bonding capacity to CHFA supports first-time homebuyer programs and affordable multi- family projects that apply for resources in Englewood. Attached is a chart showing CHFA's PAB activity for single family and multi-family affordable housing projects in Englewood since 2020. ATTACHMENTS: CHFA PAB Activity in Englewood 2020 - 2022 Ordinance Page 265 of 553 Geography Year of Funding Date Single Family Tax-exempt Production Loan Count Production Amount Related Second Median Gross Yearly Income Median Economic AMI Median Original Loan Amount Total number of people in households 2020 $5,033,996 16 $173,388 $65,290 86% $299,475 34 2021 $1,983,756 6 $79,503 $71,049 88% $328,932 15 2022 $3,575,935 9 $143,115 $94,353 107% $407,483 22 Geography Year of Funding Date Multifamily 4% project Total PAB used CHFA carryforward PAB used Other PAB Englewood 2022 Trails at Lehow $17,480,650 $17,480,650 $0 Englewood Colorado Housing and Finance Authority (CHFA) Private Acitivty Bond (PAB) Activity in Englewood 2020 - 2022 Page 266 of 553 1 ORDINANCE COUNCIL BILL NO. 30 NO. _____________ INTRODUCED BY COUNCIL SERIES OF 2023 MEMBER NUNNENKAMP AN ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF ENGLEWOOD AND THE COLORADO HOUSING AND FINANCE AUTHORITY FOR THE ASSIGNMENT OF A PRIVATE ACTIVITY BOND ALLOCATION PURSUANT TO THE COLORADO PRIVATE ACTIVITY BOND CEILING ALLOCATION ACT WHEREAS, the City of Englewood (“City”) is authorized and empowered under the laws of the State of Colorado (the "State") to issue revenue bonds for the purpose of financing qualified residential rental projects for low- and moderate-income persons and families; and WHEREAS, the City is authorized and empowered under the laws of the State to issue revenue bonds for the purpose of providing single-family mortgage loans to low- and moderate-income persons and families; and WHEREAS, the Internal Revenue Code of 1986, as amended (the "Code"), restricts the amount of tax-exempt bonds ("Private Activity Bonds") which may be issued in the State to provide such mortgage loans and for certain other purposes; and WHEREAS, pursuant to the Code, the Colorado legislature adopted the Colorado Private Activity Bond Ceiling Allocation Act, Part 17 of Article 32 of Title 24, Colorado Revised Statutes (the "Allocation Act"), providing for the allocation of the State Ceiling among the Colorado Housing and Finance Authority (the "Authority") and other governmental units in the State, and further providing for the assignment of such allocations from such other governmental units to the Authority; and WHEREAS, pursuant to an allocation under Section 24-32-1706 of the Allocation Act, the City has an allocation of the 2023 State Ceiling for the issuance of a specified principal amount of Private Activity Bonds prior to September 15, 2023 (the "2023 Allocation"); and WHEREAS, the City has determined that, in order to increase the availability of adequate affordable housing for low- and moderate-income persons and families within the City and elsewhere in the State, it is necessary or desirable to provide for the utilization of all or a portion of the 2023 Allocation; and WHEREAS, the City has determined that the 2023 Allocation, or a portion thereof, can be utilized most efficiently by assigning it to the Authority to issue Private Activity Bonds for the purpose of financing one or more multi-family rental housing projects for low- and moderate-income persons and families or to issue Private Activity Page 267 of 553 2 Bonds for the purpose of providing single-family mortgage loans to low- and moderate- income persons and families ("Revenue Bonds") or for the issuance of mortgage credit certificates; and WHEREAS, the City Council for the City of Englewood has determined to assign $2,037,821.00 of its 2023 Allocation to the Authority, which assignment is to be evidenced by an Assignment of Allocation between the City and the Authority (the "Assignment of Allocation"); and WHEREAS, Article XIV, Section 18(2)(a) of the Constitution of the State of Colorado, and Part 2, Article 1, Title 29, C.R.S. encourages and authorizes intergovernmental agreements such as the Assignment Allocation; and WHEREAS, Sections 29-1-203 and 29-1-203.5, C.R.S. authorize governments to cooperate and contract with one another to provide any function, service, or facility lawfully authorized to each. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. The City Council of the City of Englewood, Colorado hereby authorizes execution by the City of an Intergovernmental Agreement with the Colorado Housing and Finance Authority for an Assignment of Allocation in the form substantially the same as that attached hereto. Section 2. General Provisions Applicable to this Ordinance The following general provisions and findings are applicable to the interpretation and application of this Ordinance: A. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this Ordinance or its application to other persons or circumstances. B. Inconsistent Ordinances. All other Ordinances or portions thereof inconsistent or conflicting with this Ordinance or any portion hereof are hereby repealed to the extent of such inconsistency or conflict. C. Effect of repeal or modification. The repeal or modification of any provision of the Code of the City of Englewood by this Ordinance shall not release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such provision, and each provision shall be treated and held as still remaining in force for the purposes of sustaining any and all proper actions, suits, proceedings, and prosecutions for the enforcement of the penalty, forfeiture, or liability, as well as for the purpose of sustaining Page 268 of 553 3 any judgment, decree, or order which can or may be rendered, entered, or made in such actions, suits, proceedings, or prosecutions. D. Safety Clauses. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Englewood, that it is promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. This Safety Clause is not intended to affect a Citizen right to challenge this Ordinance through referendum pursuant to City of Englewood Charter 47. E. Publication. Publication of this Ordinance may be in the City’s official newspaper, the City’s official website, or both. Publication shall be effective upon the first publication by either authorized method. F. Actions Authorized to Effectuate this Ordinance. The Mayor is hereby authorized and directed to execute all documents necessary to effectuate the approval authorized by this Ordinance, and the City Clerk is hereby authorized and directed to attest to such execution by the Mayor where necessary. In the absence of the Mayor, the Mayor Pro Tem is hereby authorized to execute the above-referenced documents. The execution of any documents by said officials shall be conclusive evidence of the approval by the City of such documents in accordance with the terms thereof and this Ordinance. City staff is further authorized to take additional actions as may be necessary to implement the provisions of this Ordinance, and has authority to correct formatting and/or typographical errors discovered during codification. G. Enforcement. To the extent this ordinance establishes a required or prohibited action punishable by law, unless otherwise specifically provided in Englewood Municipal Code or applicable law, violations shall be subject to the General Penalty provisions contained within EMC § 1-4-1. Introduced and passed on first reading on the 17th day of July, 2023; and on second reading, in identical form to the first reading, on the ___ day of ____________, 2023. Othoniel Sierra, 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 an Ordinance, introduced and passed in identical form on first and second reading on the dates indicated above; and published two days after each passage on the City’s official website for at least thirty (30) days thereafter. The Ordinance shall become effective thirty (30) days after first publication on the City’s official website. Page 269 of 553 4 Stephanie Carlile Page 270 of 553 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Tamara Niles DEPARTMENT: City Attorney's Office DATE: August 7, 2023 SUBJECT: Second reading of Ordinance establishing ballot questions to revise City Charter, pursuant to Phase II of the Charter Review Project DESCRIPTION: After 6 presentations reviewing City Charter from beginning to end, this ordinance creates ballot questions for voters to consider in making substantive changes to the City Charter RECOMMENDATION: Consider potential ballot questions for voter approval PREVIOUS COUNCIL ACTION: Council has received a series of study session presentations on charter provisions, and considered which provisions should be considered for amendment by the voters SUMMARY: The following ballot questions are proposed, after a series of presentations and comments received from City Council: Question 1. To ensure consistency with TABOR and other provisions of the Charter, shall the City of Englewood Home Rule Charter be amended to exclude voter-approved taxes from right to challenge ordinances through referendum with new language shown in bold underline and deleted language shown in strikethrough? Section 78 Council may levy such taxes and excises as may be necessary to obtain revenue for the operation of the City subject to Article X Section 20 of the Colorado Constitution, subject to the right of referendum as in this Charter provided. Question 2. Shall the restrictions on timing and topics for special elections in Sections 14(2) and (3) of the City of Englewood Home Rule Charter, be repealed to allow the City to conduct special elections with more flexibility and responsiveness to citizens seeking voter action through initiative and referendum and to conform with TABOR concerning questions for approval of general obligation bonds and shall Sections 6, 34, 48, and 77 of the City of Englewood Home Rule Charter be amended to conform with the repeal of Sections 14(2) and (3)?? Page 271 of 553 Question 3. Shall Section 34 of the City of Englewood Home Rule Charter be amended to require one election for recalls, allowing for the question whether an elected officer should be recalled and the election of new elected officers to be considered at the same election and to remove the requirement that circulators for nomination petitions be residents of the City of Englewood to comply with state and federal law, with new language shown in bold underline and deleted language shown in strikethrough? Section 34 (only portion of) Persons, who are at least 18 years of age, may circulate the authorized petition .The authorized petition may be circulated and signed by registered electors who would be entitled to vote for the successor of the incumbent sought to be recalled. The recall petition shall be filed with the requisite information and signatures with the City Clerk within sixty (60) days after authorization by the City Clerk. Failure to file a petition within this period shall render the recall petition null and void. If said petition is filed within the time specified and is proper in all respects, the Council shall set a date for a recall election to be held not less than sixty (60) days nor more than one hundred twenty (120) days after filing of the recall petition unless within said period of timeone hundred and eighty (180) days a general municipal election, a special municipal election or a general state election is to be held, then the recall election shall be held as part of said general municipal election, a special municipal election or a general state election. In the event that an officer is recalled by a majority vote of those voting on the question, the office shall be deemed vacant and shall be filled at an election called by Council not less than sixty (60) days nor more than one hundred twenty (120) days after the recall election unless within said period of time a general municipal election, a special municipal election, or a general state election is to be held. Should a general municipal election, a special municipal election, or a general state election be held within the 60th to 120th day after the recall election, the election to fill the vacancy shall be held in conjunction therewith. On such ballots, under each question, there must also be print ed the names of those persons who have been nominated as candidates to succeed the person sought to be recalled. The name of the person against whom the petition is filed shall not appear on the ballot as a candidate for the office. All candidates on the ballot must be listed in alphabetical order. Candidates for the office at a recall election may be nominated by petition as provided in applicable election code; except that candidates shall have not less than ten (10) calendar days beginning on the first calendar day after the governing body sets the date for the recall election within which to circulate nominating petitions, and such petitions shall be filed no later than forty-five (45) days prior to such recall election. A recall petition may not be circulated or filed against an elected officer whose office is up for election within six (6) months. Question 4. Shall the portion of Section 58 of the City of Englewood Home Rule Charter describing the Duties of the City Planning and Zoning Commission be repealed in part to allow City Council to designate decision-making authority for subdivision plats by ordinance with deleted language shown in strikethrough? Section 58 (only portion of) Page 272 of 553 The City Planning and Zoning Commission shall prepare and submit to the Council for its approval a master plan, and current modifications thereof, for the physical development of the City. All plats of proposed subdivisions shall be submitted to the City Planning and Zoning Commission for its recommendations to Council with respect thereto. The Commission shall submit annually to the City Manager, not less than ninety days prior to the submission of the budget, a list of recommended capital improvements, arranged in order of preference, which in the opinion of the Commission are necessary or desirable to be constructed during the forthcoming five-year period. Question 5. Shall Section 71 of the City of Englewood Home Rule Charter be amended to allow City Council to delegate authority to sign contracts and land conveyances with new language shown in bold underline and deleted language shown in strikethrough? Section 71 Except as otherwise authorized by Council, Aall contracts in writing binding the City and all conveyances of an interest in land by the City shall be signed by the Mayor and attested by the City Clerk under the seal of the City. COUNCIL ACTION REQUESTED: Adopt council bill/ordinance setting those questions for November general election. FINANCIAL IMPLICATIONS: None anticipated ATTACHMENTS: Council Bill Powerpoint Page 273 of 553 Proposed Charter Ballot Questions Presented By Tamara Niles, City Attorney Kathryn Sellars, Hoffman Parker Page 274 of 553 Question 1 •To ensure consistency with TABOR and other provisions of the Charter, shall the City of Englewood Home Rule Charter be amended to exclude voter- approved taxes from right to challenge ordinances through referendum with new language shown in bold underline and deleted language shown in strikethrough? Section 78 •Council may levy such taxes and excises as may be necessary to obtain revenue for the operation of the City subject to Article X Section 20 of the Colorado Constitution, subject to the right of referendum as in this Charter provided.Page 275 of 553 Question 2 Shall the restrictions on timing and topics for special elections in Sections 14(2) and (3) of the City of Englewood Home Rule Charter, be repealed to allow the City to conduct special elections with more flexibility and responsiveness to citizens seeking voter action through initiative and referendum and to conform with TABOR concerning questions for approval of general obligation bonds and shall Sections 6, 34, 48, and 77 of the City of Englewood Home Rule Charter be amended to conform with the repeal of Sections 14(2) and (3)?Page 276 of 553 Question 3 •Shall Section 34 of the City of Englewood Home Rule Charter be amended to require one election for recalls, allowing for the question whether an elected officer should be recalled and the election of new elected officers to be considered at the same election and to remove the requirement that circulators for nomination petitions be residents of the City of Englewood to comply with state and federal law, with new language shown in bold underline and deleted language shown in strikethrough? •Section 34 (only portion of) •Persons, who are at least 18 years of age, may circulate the authorized petition. The authorized petition may be circulated and signed by registered electors who would be entitled to vote for the successor of the incumbent sought to be recalled. Page 277 of 553 Question 3 (cont’d) •The recall petition shall be filed with the requisite information and signatures with the City Clerk within sixty (60) days after authorization by the City Clerk. Failure to file a petition within this period shall render the recall petition null and void. If said petition is filed within the time specified and is proper in all respects, the Council shall set a date for a recall election to be held not less than sixty (60) days nor more than one hundred twenty (120) days after filing of the recall petition unless within said period of time one hundred and eighty (180) days a general municipal election, a special municipal election or a general state election is to be held, then the recall election shall be held as part of said general municipal election, a special municipal election or a general state election. •In the event that an officer is recalled by a majority vote of those voting on the question, the office shall be deemed vacant and shall be filled at an election called by Council not less than sixty (60) days nor more than one hundred twenty (120) days after the recall election unless within said period of time a general municipal election, a special municipal election, or a general state election is to be held. Should a general municipal election, a special municipal election, or a general state election be held within the 60th to 120th day after the recall election, the election to fill the vacancy shall be held in conjunction therewith. Page 278 of 553 Question 3 (cont’d) •On such ballots, under each question, there must also be printed the names of those persons who have been nominated as candidates to succeed the person sought to be recalled. The name of the person against whom the petition is filed shall not appear on the ballot as a candidate for the office. All candidates on the ballot must be listed in alphabetical order. •Candidates for the office at a recall election may be nominated by petition as provided in applicable election code; except that candidates shall have not less than ten (10) calendar days beginning on the first calendar day after the governing body sets the date for the recall election within which to circulate nominating petitions, and such petitions shall be filed no later than forty-five (45) days prior to such recall election. A recall petition may not be circulated or filed against an elected officer whose office is up for election within six (6) months.Page 279 of 553 Question 4 •Shall the portion of Section 58 of the City of Englewood Home Rule Charter describing the Duties of the City Planning and Zoning Commission be repealed in part to allow City Council to designate decision-making authority for subdivision plats by ordinance with deleted language shown in strikethrough? •Section 58 (only portion of) •The City Planning and Zoning Commission shall prepare and submit to the Council for its approval a master plan, and current modifications thereof, for the physical development of the City. All plats of proposed subdivisions shall be submitted to the City Planning and Zoning Commission for its recommendations to Council with respect thereto. The Commission shall submit annually to the City Manager, not less than ninety days prior to the submission of the budget, a list of recommended capital improvements, arranged in order of preference, which in the opinion of the Commission are necessary or desirable to be constructed during the forthcoming five-year period.Page 280 of 553 Question 5 •Shall Section 71 of the City of Englewood Home Rule Charter be amended to allow City Council to delegate authority to sign contracts and land conveyances with new language shown in bold underline and deleted language shown in strikethrough? •Section 71 •Except as otherwise authorized by Council, Aall contracts in writing binding the City and all conveyances of an interest in land by the City shall be signed by the Mayor and attested by the City Clerk under the seal of the City.Page 281 of 553 Questions?Page 282 of 553 1 ORDINANCE NO. ____ COUNCIL BILL NO. 31 SERIES OF 2023 INTRODUCED BY COUNCIL MEMBER WOODWARD AN ORDINANCE CALLING A MUNICIPAL ELECTION FOR NOVEMBER 7, 2023, TO COINCIDE WITH THE STATE GENERAL ELECTION; DECLARING THE CITY’S INTENT TO COORDINATE SUCH ELECTION WITH ARAPAHOE COUNTY; SUBMITTING TO THE REGISTERED ELECTORS OF THE CITY PROPOSED AMENDMENTS TO THE CITY OF ENGLEWOOD HOME RULE CHARTER; AND SETTING BALLOT TITLES THEREON WHEREAS, pursuant to Sections 8 and 14 of the City of Englewood Home Rule Charter (the “Charter”), proposed amendments to the Charter may be submitted to the electors by City Council on its own initiative at regular or special municipal elections in accordance with Article XX of the Colorado Constitution; WHEREAS, Article XX, Section 5, of the Colorado Constitution recognizes the city council may, on its own initiative, submit any charter amendment at any general or special state or municipal election held not less than 30 days after the effective date of the ordinance or resolution submitting such question to the voters; WHEREAS, pursuant to § 31-2-210(1)(b), C.R.S., proceedings to amend a home rule charter may be initiated by an ordinance adopted by the governing body submitting the proposed amendments to a vote of the registered electors of the municipality and such ordinance shall also adopt ballot titles for the proposed amendments; WHEREAS, pursuant to §§ 1-5-401 and 1-7-116, C.R.S., if more than one political subdivision holds an election on the same day in November and the eligible electors for each such election are the same or the boundaries overlap, the elections shall be coordinated by the county clerk and recorder as the coordinated election official; WHEREAS, the City must take formal action to participate in an election that will be coordinated by the county clerk and recorder and must notify the county clerk and recorder in writing of such decision; and WHEREAS, the November 7, 2023 state general election will be held more than 30 days after the effective date of this ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. The City Council will hold its general municipal election to be coordinated with Arapahoe County on Tuesday, November 7, 2023. Page 283 of 553 2 Section 2. At the general municipal election to be held on Tuesday, November 7, 2023, ballot questions regarding proposed amendments to the Charter shall be submitted to the registered electors of the City. Section 3. The following ballot titles and ballot questions are hereby set: Question 1. To ensure consistency with TABOR and other provisions of the Charter, shall the City of Englewood Home Rule Charter be amended to exclude voter-approved taxes from right to challenge ordinances through referendum with new language shown in bold underline and deleted language shown in strikethrough? Section 78 Council may levy such taxes and excises as may be necessary to obtain revenue for the operation of the City subject to Article X Section 20 of the Colorado Constitution, subject to the right of referendum as in this Charter provided. Question 2. Shall the restrictions on timing and topics for special elections in Sections 14(2) and (3) of the City of Englewood Home Rule Charter, be repealed to allow the City to conduct special elections with more flexibility and responsiveness to citizens seeking voter action through initiative and referendum and to conform with TABOR concerning questions for approval of general obligation bonds and shall Sections 6, 34, 48, and 77 of the City of Englewood Home Rule Charter be amended to conform with the repeal of Sections 14(2) and (3)? Question 3. Shall Section 34 of the City of Englewood Home Rule Charter be amended to require one election for recalls, allowing for the question whether an elected officer should be recalled and the election of new elected officers to be considered at the same election and to remove the requirement that circulators for nomination petitions be residents of the City of Englewood to comply with state and federal law, with new language shown in bold underline and deleted language shown in strikethrough? Section 34 (only portion of) Persons, who are at least 18 years of age, may circulate the authorized petition. The authorized petition may be circulated and signed by registered electors who would be entitled to vote for the successor of the incumbent sought to be recalled. The recall petition shall be filed with the requisite information and signatures with the City Clerk within sixty (60) days after authorization by the City Clerk. Failure to file a petition within this period shall render the recall petition null and void. If said petition is filed within the time specified and is proper in all respects, the Council shall set a date for a recall election to be held not less than sixty (60) days nor more than one hundred twenty (120) days after filing of the recall petition unless within said period of time one hundred and eighty (180) Page 284 of 553 3 days a general municipal election, a special municipal election or a general state election is to be held, then the recall election shall be held as part of said general municipal election, a special municipal election or a general state election. In the event that an officer is recalled by a majority vote of those voting on the question, the office shall be deemed vacant and shall be filled at an election called by Council not less than sixty (60) days nor more than one hundred twenty (120) days after the recall election unless within said period of time a general municipal election, a special municipal election, or a general state election is to be held. Should a general municipal election, a special municipal election, or a general state election be held within the 60th to 120th day after the recall election, the election to fill the vacancy shall be held in conjunction therewith. On such ballots, under each question, there must also be printed the names of those persons who have been nominated as candidates to succeed the person sought to be recalled. The name of the person against whom the petition is filed shall not appear on the ballot as a candidate for the office. All candidates on the ballot must be listed in alphabetical order. Candidates for the office at a recall election may be nominated by petition as provided in applicable election code; except that candidates shall have not less than ten (10) calendar days beginning on the first calendar day after the governing body sets the date for the recall election within which to circulate nominating petitions, and such petitions shall be filed no later than forty-five (45) days prior to such recall election. A recall petition may not be circulated or filed against an elected officer whose office is up for election within six (6) months. Question 4. Shall the portion of Section 58 of the City of Englewood Home Rule Charter describing the Duties of the City Planning and Zoning Commission be repealed in part to allow City Council to designate decision-making authority for subdivision plats by ordinance with deleted language shown in strikethrough? Section 58 (only portion of) The City Planning and Zoning Commission shall prepare and submit to the Council for its approval a master plan, and current modifications thereof, for the physical development of the City. All plats of proposed subdivisions shall be submitted to the City Planning and Zoning Commission for its recommendations to Council with respect thereto. The Commission shall submit annually to the City Manager, not less than ninety days prior to the submission of the budget, a list of recommended capital improvements, arranged in order of preference, which in the opinion of the Commission are Page 285 of 553 4 necessary or desirable to be constructed during the forthcoming five-year period. Question 5. Shall Section 71 of the City of Englewood Home Rule Charter be amended to allow City Council to delegate authority to sign contracts and land conveyances with new language shown in bold underline and deleted language shown in strikethrough? Section 71 Except as otherwise authorized by Council, Aall contracts in writing binding the City and all conveyances of an interest in land by the City shall be signed by the Mayor and attested by the City Clerk under the seal of the City. Section 4. The following general provisions and findings are applicable to the interpretation and application of this Ordinance: A. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this Ordinance or its application to other persons or circumstances. B. Inconsistent Ordinances. All other Ordinances or portions thereof inconsistent or conflicting with this Ordinance or any portion hereof are hereby repealed to the extent of such inconsistency or conflict. C. Effect of repeal or modification. The repeal or modification of any provision of the Code of the City of Englewood by this Ordinance shall not release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such provision, and each provision shall be treated and held as still remaining in force for the purposes of sustaining any and all proper actions, suits, proceedings, and prosecutions for the enforcement of the penalty, forfeiture, or liability, as well as for the purpose of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in such actions, suits, proceedings, or prosecutions. D. Safety Clauses. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Englewood, that it is promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. This Safety Clause is not intended to affect a Citizen right to challenge this Ordinance through referendum pursuant to City of Englewood Charter 47. E. Publication. Publication of this Ordinance may be in the City’s official newspaper, the City’s official website, or both. Publication shall be effective upon the first publication by either authorized method. Page 286 of 553 5 F. Actions Authorized to Effectuate this Ordinance. The Mayor is hereby authorized and directed to execute all documents necessary to effectuate the approval authorized by this Ordinance, and the City Clerk is hereby authorized and directed to attest to such execution by the Mayor where necessary. In the absence of the Mayor, the Mayor Pro Tem is hereby authorized to execute the above-referenced documents. The execution of any documents by said officials shall be conclusive evidence of the approval by the City of such documents in accordance with the terms thereof and this Ordinance. City staff is further authorized to take additional actions as may be necessary to implement the provisions of this Ordinance. Introduced and passed on first reading on the 17th day of July, 2023; and on second reading, in identical form to the first reading, on the ___ day of ____________, 2023. Othoniel Sierra, 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 an Ordinance, introduced and passed in identical form on first and second reading on the dates indicated above; and published two days after each passage on the City’s official website for at least thirty (30) days thereafter. The Ordinance shall become effective thirty (30) days after first publication on the City’s official website. Stephanie Carlile Page 287 of 553 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Devin Keener, Tim Hoos DEPARTMENT: Public Works DATE: August 7, 2023 SUBJECT: Award of Contract to West Fork Construction for the 2023 Alley Grading & Stabilization Project in the amount of $491,612.50 DESCRIPTION: Award of Contract to West Fork Construction for the 2023 Alley Grading & Stabilization Project in the amount of $491,612.50 RECOMMENDATION: Staff recommends that the City Council approve, by motion, a contract with West Fork Construction in the amount of $491,612.50 for the 2023 Alley Grading and Stabilization Project. PREVIOUS COUNCIL ACTION: The 2022 Alley Grading & Stabilization project was approved, funded and completed in the amount of $514,074.00. SUMMARY: On June 20, 2023, the City issued an Invitation To Bid (ITB) for the 2023 Alley Grading & Stabilization project, encompassing pavement maintenance Zones 1, 2, 3, and 4. West Fork Construction, a recently established company led by former staff members of the City's previous alley grading contractor, Summers Construction Inc., submitted the sole bid on July 6, 2023, quoting a total amount of $697,650.00, exceeding the Engineer's Estimate by 39%. To align the project with the available budget, staff conducted a thorough review of the project scope and initiated negotiations with West Fork Construction. Through effective collaboration, the scope of work was reduced resulting in a reduction in cost of $206,037.50 and a total revised bid of $491,612.50. To preserve the project's intended objectives while achieving this cost reduction, the additional grading work will be completed by the City's street maintenance team and as part of the alleys incorporated into the 2023 Mill and Overlay Project that are scheduled to be surfaced with recycled asphalt millings. It is important to note that the approach for this year's project differs from the past four years of contractor alley grading efforts. The focus this year has shifted from grading every alley in a specific pavement maintenance zone to establish the 'v' channel to addressing specific alleys in disrepair citywide. At the end of the 2022 project, all alleys have now been graded with a 'v' channel, leading to efforts now being concentrated on alleys in need of grading adjustments, either requiring engineered solutions or surpassing the capability of the internal street maintenance team to maintain the 'v' channel grading. The completion of 'v' channel grading has yielded positive outcomes, evidenced by a substantial reduction in alley complaints over the past few years, with a notable 56% decrease from 2019 to 2022. Recent alley inspections Page 288 of 553 further confirm the durability of numerous alleys, a significant portion still meeting specifications even four years after initial 'v' grading efforts started. Moving forward, the selection of alleys for contractor support for alley grading will be based on a yearly visual inspection of all alleys, evaluating specific criteria and assigning a condition score. The criteria includes evaluation of cleanliness, potholes, rutting, drainage, dust control, overgrown vegetation and weeds in the flowline. Spot repairs and touch-ups will be handled by the City's street maintenance team, allowing the City to only allocate contractor resources to alleys in need of more substantial adjustments. This strategic course of action is expected to curtail the costs associated with annual contractor alley grading and minimize expenditures by focusing resources only on alleys truly requiring further grading adjustments. Furthermore, as a longer-term solution to dirt alley surface deterioration, all alleys in the City will continue to be surfaced with recycled asphalt millings from the annual mill and overlay projects, further extending the life of the alley surface and reducing the scope and necessity for an annual contractor alley grading project. In conclusion, this comprehensive approach aims to optimize alley grading and maintenance results while prudently managing costs and fostering the sustainable maintenance of City alleys in the 'v' channel configuration. ANALYSIS: Contract Scope: This project encompasses the grading and stabilization of 40 aggregate base alleys located in pavement maintenance Zones 1, 2, 3, and 4. Additionally within the contract price of $491,612.50, an allocation has been designated for surveying and fine grading alleys intended to receive millings from the 2023 Mill and Overlay Project. This ensures that the 2023 Mill and Overlay Contractor installs the millings correctly and ensures that any unforeseen alley deteriorations or other issues that may arise during the contractor's presence on site are corrected prior to the application of the asphalt millings. Background: Unpaved alleys citywide are susceptible to deterioration due to factors such as erosion from rain, annual snow melt, and regular alley traffic. Poor grading practices can lead to suboptimal drainage conditions and standing water, resulting in prolonged high moisture content in the aggregate base. Such trapped moisture facilitates particle movement within the aggregate under loading conditions, contributing to rutting, potholing, and progressive deterioration. Therefore, improving and maintaining adequate drainage conditions is critical for extending the functional lifespan of these alleys. Alley Grading & Stabilization Approach: The alley grading work entails transforming the alleys into a "v" channel cross-section, facilitating the flow of stormwater that accumulates in the alleys toward the nearest cross street. This alteration is aimed at significantly improving surface drainage and enhancing the overall rideability of the alleys. Moreover, a surface stabilization product will be applied to bind the aggregate particles and reduce surface permeability. Consequently, this treatment will mitigate rutting, pumping, and erosion that the aggregate may otherwise experience. Page 289 of 553 Bidding & Selection Process • Plans and specifications for this project were prepared by City Staff based off inspections and known trouble spots. • Bids were solicited through a formal bidding process which was advertised on the Rocky Mountain BidNet website beginning on June 20, 2023. • Bids were opened and read publicly at 2:00 p.m. on July 6, 2023. • One (1) bid was received from West Fork Construction • Negotiations were entered into with West Fork Construction to reduce the scope to match the budget available. Project Schedule Per the contract terms, all work must be completed by the end of the 2023 calendar year. COUNCIL ACTION REQUESTED: The bid process resulted in one bidder, West Fork Construction, that submitted a bid exceeding the Engineer's Estimate by $197,650, or 39%. Subsequently, negotiations were undertaken, leading to a revised contract price of $491,612.50 using the same unit pricing contained in the original bid. The proposed unit pricing aligns favorably with previous contractor rates for similar alley grading projects. Drawing upon the City's past experience with West Fork Construction staff, many of them former employees of Summers Construction (last year's alley grading contractor), staff is satisfied with their past performance and anticipates the satisfactory execution of the work on this project. Therefore, based on careful evaluation, negotiations, and considerations, staff recommends awarding the contract for the 2023 Alley Grading and Stabilization project to West Fork Construction in the amount of $491,612.50. FINANCIAL IMPLICATIONS: Staff issued an Invitation to Bid (ITB) on June 20,2023. One bid was received on July 6, 2023, as summarized below. A detailed summary of the bid results is attached. Original Bid Original Bid Amount West Fork Construction $697,650.00 Engineer's Estimate $500,000.00 Amount over Engineer's Estimate $197,650.00 Staff negotiated the scope of work with West Fork Construction and arrived at a contract total price of $491,612.50 as shown in the table below: Revised Bid Revised Bid Amount West Fork Construction $491,612.50 Engineer's Estimate $500,000.00 Amount under Engineer's Estimate $8,387.50 West Fork Construction's total revised bid was approximately 1.7% less than the original Engineer's Estimate amount. No contingency is requested for authorization. Page 290 of 553 West Fork Construction's revised Bid Amount $491,612.50 Total Authorized Amount $491,612.50 The funding source for this work is the 2023 Public Improvement Fund project number 30 1001- 007 Alley Construction and 30 1001 031 Pavement Maintenance by Area. $50,000.00 from the Pavement Maintenance by Area budget has been added to this project within the $491,612.50 contract amount to only be utilized as necessary to ensure that the millings placed in the alleys by the Mill and Overlay Contractor are installed correctly. Adequate funding is available in these Public Improvement Funds as shown on the attached Contract Approval Summary. CONNECTION TO STRATEGIC PLAN: Strategic Outcome: Infrastructure A city that proactively, and in a cost-effective manner, invests in, maintains, and plans to protect its infrastructure All alleys in the city are being graded to drain storm water runoff to the streets, thus limiting the impact of potential flooding on adjacent properties. This is part of a larger overall goal to ensure proper storm water drainage within the city limits. OUTREACH/COMMUNICATIONS: Notification post cards will be mailed to affected residents prior to the start of construction. Per the contract terms, the contractor will also place notification signs at the end of each alley 48 hours prior to the date they begin work on a given alley. ATTACHMENTS: Presentation Bid Tabulation CFC-23-113 Contract Approval Summary Construction Contract General Conditions Construction Specifications 2023 Alley Grading & Stabilization Plans Qalert comparison by year Alleys removed from project Page 291 of 553 2023 Alley Grading & Stabilization Award of Contract to West Fork Construction Presented By: Tim Hoos –Deputy Director, Engineering and Asset Management Devin Keener -Capital Projects Engineer Page 292 of 553 Purpose of the Project •Alley Maintenance •Improved Drainage •Improved Durability •Improved Access Page 293 of 553 Changes from last year Previous Year’s Approach This Year’s Approach Zone-wide alley grading Targeted alley grading based on OCI rating Limited ability for adding additional alleys during the project.Ability to address additional alley issues that may arise while the contractor is on site. No-preplanned tree and weed trimming Defined tree and weed trimming map based on visual inspections of all alleys. Alley Condition Rating Solution 0-20 Severe/Impassable with low clearance vehicle To be graded by Contractor. Engineered solutions required. City Staff to provide short term repair. 20-40 Poor/Large potholes, ponding or rutting To be graded by Contractor. City Staff to provide short term repair. 40-60 Fair/Some potholes and rutting To be graded by City Staff as routine maintenance. (Spot repair work) 60-80 Good/Normal wear and tear To be graded by City Staff only as needed. 80-100 Excellent/No Issues No work needed. Monitor for potential future needs. •Rating System/OCI Score Page 294 of 553 Alley Condition Ratings •Evaluation Criteria: •Cleanliness •Potholes •Rutting •Drainage •Dust Control •Vegetation Overgrowth •Weeds in Flowline Page 295 of 553 Project Scope Inspection and OCI ratings show that the majority of project resources need to be directed to this zone. •Zone 1 •Primary focus of the 2023 alley grading project. •Contains the majority of the lowest OCI ratings. •Zone 2 •Scheduled for placement of the majority of the asphalt millings from the 2023 Mill and Overlay Project. •Minor regrading based on OCI scores. •Zone 3 •Minor regrading based on OCI scores. •Zone 4 •Minor regrading based on OCI scores. Inspection and OCI ratings show minimal alleys need to be regraded. Inspection and OCI ratings show minimal alleys need to be regraded. Inspection and OCI ratings show minimal alleys need to be regraded.Page 296 of 553 Analysis of Contractor Cost Proposal West Fork Construction’s Original Bid: $697,650.00 Engineer Estimate: $500,000.00 West Fork Construction’s Revised Bid:$491,612.50 Note: West Fork Construction is a new company run by former employees of Summers Construction, the alley grading contractor in 2022.Page 297 of 553 Schedule •Construction Start: August 2023 •Construction Complete: December 2023 Page 298 of 553 Summary •Staff recommends City Council approve the 2023 Alley Grading & Stabilization contract with West Fork Construction.Page 299 of 553 Questions?Page 300 of 553 Schedule A - Original Project Work BID ITEM / M&P DESCRIPTION QUANTITY UNIT UNIT PRICE COST 31.01 Project Mobilization 1 LS $140,000.00 $140,000.00 31.02 Alley Grading (11' Wide) (Non-Aspahlt Milling Alleys) 25,000 LF $3.25 $81,250.00 31.03 Alley Grading (11' Wide) (Asphalt Milling Alleys) 14,275 LF $3.50 $49,962.50 31.04 Removal and Disposal of Excess Alley Base 20 CY $65.00 $1,300.00 31.05 Removal & Disposal of Unsuitable Alley Base 400 CY $65.00 $26,000.00 31.06 Recycle Alley Base 25 CY $100.00 $2,500.00 31.07 Haul & Place Asphalt Millings 200 CY $75.00 $15,000.00 31.08 Install Aggregate Pan 5,000 LF $8.50 $42,500.00 31.09 Install Aggregate 50 CY $88.00 $4,400.00 31.10 Apply Soil Stabilizer (.2 gal/SY) 10,000 GAL $2.25 $22,500.00 31.11 Structure Adjustment (Lowering)2 EA $750.00 $1,500.00 31.12 Structure Adjustment (Raising)2 EA $850.00 $1,700.00 31.13 Tree and Bush Trimming 16 HR $500.00 $8,000.00 31.14 Weed Removal 10,000 LF $1.50 $15,000.00 31.15 Erosion & Sediment Control 1 LS $15,000.00 $15,000.00 31.16 Work Zone Traffic Control 1 LS $20,000.00 $20,000.00 31.17 Minor Contract Revisions 1 EA $45,000.00 $45,000.00 Total Bid: $491,612.50 Page 301 of 553 _____________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 1 CFC# 23-113 CONTRACT # CFC-23-113 2023 ALLEY GRADING PROJECT Not to exceed $491,612.50 THIS CONTRACT is, made and entered into this _____________, by and between the City of Englewood, a municipal corporation of the State of Colorado hereinafter referred to as the “City”, and West Fork Construction, LLC. whose address is 10635 Thomas Road, Colorado Springs, CO 80908 hereinafter referred to as (“Contractor”). (THIS CONTRACT IS NOT VALID UNTIL APPROVED, SIGNED, AND DATED ABOVE BY THE CITY.) Commencing on the _______________, 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: PROJECT: 2023 Alley Grading Project Per ITB-23-020 WHEREAS, proposals pursuant to said advertisement have been received by the City and have been certified by the Director of Public Works 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 only reliable and responsible bidder therefore; and WHEREAS, pursuant to said recommendation, the City Council has approved the Contract, and the Contract has been awarded to the above-named Contractor, and said Contractor is now willing and able to perform all of the work in accordance with the advertisement, and attached bid and 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 incorporated into the ensuing terms and conditions and shall make up the Contract Documents: i. Winning Bid and documents supporting the award of the Bid. ii. Spread sheet of all Bids received and amounts bid for the above project. iii. All Exhibits, Schedules, Attachments and Statements of Work necessary to outline the scope and timeline of the project. iv. Certificate of Insurance Page 302 of 553 _____________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 2 CFC# 23-113 All additional documents shall be clearly marked and delineated as an Exhibit. Invitation to Bid and Supporting Documents Contract (this instrument) including Exhibits, Schedules, Attachments and Statements of Work All Bid Response Documents Certificate of Insurance B. Scope of Work: The Contractor agrees to and shall furnish all labor, tools, supplies, equipment, materials and everything necessary for and required to perform and complete all the work described, drawn, set forth, shown, and as set forth in the Attachment A – Statement of Work, and made a part of this Contract. 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. D. Initial Term of Contract: The initial term of this contract shall be for one year. The term of this contract shall begin upon the date that both parties have signed the contract with the work to be completed upon the date set forth in the Attachment A - Statement of Work attached hereto, but at no time shall the contract be longer than a one-year period. In the event that the parties desire to extend the contract beyond the one-year period, written notice shall be given to the City no later than thirty (30) days prior to the end of the contract by the Contractor. If the City agrees to the request for renewal, the parties shall then enter into an amendment extending this Contract, including an amended Attachment A – Statement of Work, if necessary. Any renewal of this contract is subject to approval by the Englewood City Council. E. Indemnification: The City cannot and by this 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. F. Contractor's and Subcontractor's Insurance. The Contractor shall not commence work under this contract until he has obtained the insurance required under this paragraph and satisfactory proof of such insurance has been submitted to City. Except for worker’s compensation insurance, the policy shall not be amended or modified and the coverage amounts shall not be reduced without the City’s prior written consent. The City shall be named as an additional insured and be furnished thirty (30) days written notice prior to cancellation. The Contractor shall not allow any subcontractor, employee Page 303 of 553 _____________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 3 CFC# 23-113 or agent to commence work on this contract or any subcontract until this insurance has been obtained. i) Insurance Types and Amounts. The City requires the following minimum amounts of insurance coverage: Commercial General Liability in the amount of $2,000,000 per occurrence with $3,000,000 general aggregate; pollution legal liability with $1,000,000 per occurrence with $1,000,000 general aggregate; Completed Operations Insurance in the amount of $1,000,000 per occurrence with $2,000,000 general aggregate, Builder’s Risk – minimum limits of not less than the insurable value of the work to be performed under this contract at completion, Comprehensive Automobile Liability Insurance – combined single limit of $2,000,000 each occurrence and $2,000,000 aggregate and personal injury protection per Colorado Law, Installation Floater with minimum limits of not less than the insurable value of the work and Workers Compensation – with coverage amounts imposed by the Workers Compensation Act of Colorado. The above amounts may be amended upward or downward depending on the overall cost of the services provided, the type of project for which this contract has been awarded, and only with the approval of the City. G. 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 the City’s property. If the award is terminated by the City as provided herein, the Contractor will be paid for the materials and services provided up to the termination date, 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, below in subsection H, shall apply. H. 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 or any of the terms and conditions contained in this Contract, the City shall have the right to terminate the award by giving written notice, no less than thirty (30) days, 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 compensation for any satisfactory actual work completed, documents prepared and completed, or materials 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 a breach of the Contract 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. I. 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 Page 304 of 553 _____________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 4 CFC# 23-113 made a part hereof, the total cost thereof being five-hundred seventy-one thousand three-hundred sixty Dollars. ($571,360.00). A 5% retainage of the awarded project amount will be withheld until final inspection and acceptance by the Project Manager. J. Appropriation of Funds: At present, $628,496.00 has been appropriated for the project. Notwithstanding anything else 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. K. 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 and Attachment A – Statement of Work, plus any extensions thereof that have been agreed to by the Parties. The Parties 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 completed 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 $1,600.00 for each day that expires after the time specified for substantial completion until the Work is complete, and $ 1,600.00 for each day that expires after the time specified for final completion of the Work. L. 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. $1,000 TV $1,000 TV Page 305 of 553 _____________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 5 CFC# 23-113 M. 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. N. State Statute: In accord with the Keep Jobs in Colorado Act, codified at sections 8-17-101, et seq., C.R.S., Colorado labor shall be employed to perform the work to the extent of not less than eighty percent (80%) of each type or class of labor in the several classifications of skilled and common labor employed on this Project, provided however, that this paragraph shall not apply if the Project receives federal funding. O. 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 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 Public Works whose decision upon the matter shall be final and obligatory upon the Contractor. P. 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. Q. 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. R. Attorney Fees: In the event that either party to this Contract shall commence any action against the other party arising out of or in connection with this Contract, or contesting the validity of the Contract or any provision of this Contract, the prevailing party shall be entitled to recover from the other party reasonable attorney’s fees and related costs, fees and expenses incurred by the prevailing party in connection with such action or proceeding. S. Compliance with the Immigration Reform And Control Act Of 1986. Contractor certifies that Contractor has complied with the United States Immigration Reform and Control Act of 1986. All persons employed by Contractor for the performance of this Contract have completed and signed Form I-9 verifying their identities and authorization for employment. T. Use of City Name or Logo. Except as otherwise provided in this Contract, the Contractor shall not refer to this Contract or the City of Englewood in any advertising or promotions in such a manner as to state or imply that the product or service provided is endorsed or preferred by the City of Englewood, its employees, or its Departments, or is considered by these entities to be superior to other products or services. Any use of the name, image, or logo of the City of Englewood in advertising or promotions must be approved in writing by the City prior to such use. Page 306 of 553 _____________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 6 CFC# 23-113 U. Incorporation by Reference. This Contract is made under and conformable to the provisions of Section 4-1-3-4 of Englewood Municipal Code, which provides standard contract provisions for all contractual agreements with the City. Insofar as applicable, the provisions of EMC Section 4-1-3-4 are incorporated herein and made a part hereof by this reference and shall supersede any apparently conflicting provision otherwise contained in this Contract. IN WITNESS WHEREOF, the parties hereto have executed this Contract the day and year first written above. CITY OF ENGLEWOOD By: ________________________________ Date: ___________________ (Director) By: ________________________________ Date: ___________________ (City Manager) By: ________________________________ Date: ____________________ (Mayor) Attest: ______________________________________________________ (City Clerk) WEST FORK CONSTRUCTION, LLC. Contractor (print company name) By: ________________________________ Date: ____________________ (Signature) _______________________________________________________ (Print name and Title) 7/27/2023 Tim Valdez - Project Manager Page 307 of 553 _____________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 7 CFC# 23-113 ATTACHMENT A STATEMENT OF WORK 1. GENERAL The City of Englewood is renewing the contract for services of West Fork Construction, LLC. to perform alley maintenance in pavement maintenance zones 1,2, 3, and 4. Alley maintenance includes: grading, adding road base, disposing of soil, adding asphalt millings, trimming trees, and applying a topical stabilizer. 2. NAMES, PHONE NUMBERS AND EMAILS OF PROJECT COORDINATORS Tim Valdez Devin Keener West Fork Construction, LLC. City of Englewood Project Manager Capital Projects Engineer (719) 491-4495 (303) 913-8696 tim@westforkconstruction.co dkeener@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 road base, adding asphalt millings, disposing of alley base, 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 will provide asphalt millings for the project at the City Yard. The Contractor shall be responsible for coordinating entry and exit into the City Yard and all activities related to placing the millings into their trucks for export to the alleys. 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 308 of 553 _____________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 8 CFC# 23-113 7. SPECIAL TERMS, IF ANY The special provisions referenced in ITB-23-020, beginning on page 30, will be replaced with the Special Provisions attached to this contract. 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 Work shall be complete 90 days after the start date as outlined on the Notice to Proceed. 11. ACCEPTANCE AND TESTING PROCEDURES The City shall be responsible for Project Quality Assurance (QA) testing. The Contractor shall be responsible for Project Quality Control (QC) testing which will be used along with City test results in determining the responsible party in the event of failures during construction or warranty period. The Contractor’s cost of testing shall be considered included in the cost of the associated pay item and will not be paid for separately. 12. LOCATION OF WORK FACILITIES Contractor at its regular office located at 10635 Thomas Rd, Colorado Springs, CO 80908 and will conduct substantially all of the work. Page 309 of 553 _____________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 9 CFC# 23-113 IN WITNESS WHEREOF, pursuant and in accordance with the Contract for Construction between the parties hereto dated _______________, the parties have executed this Statement of Work as of this _____________________. CITY OF ENGLEWOOD, COLORADO By: (Signature) _________________________________ (Print Name) Title: Date: _______________________________ WEST FORK CONSTRUCTION, LLC. Consultant Name By: (Signature) _________________________________ (Print Name) Title: Date: _______________________________ Page 310 of 553 _____________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 10 CFC# 23-113 ATTACHMENT B CONTRACTOR’S PROPOSAL Page 311 of 553 _____________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 11 CFC# 23-113 ATTACHMENT C CERTIFICATE OF INSURANCE Page 312 of 553 Schedule A - Original Project Work BID ITEM / M&P DESCRIPTION QUANTITY UNIT UNIT PRICE COST 31.01 Project Mobilization 1 LS $140,000.00 $140,000.00 31.02 Alley Grading (11' Wide) (Non-Aspahlt Milling Alleys) 25,000 LF $3.25 $81,250.00 31.03 Alley Grading (11' Wide) (Asphalt Milling Alleys) 14,275 LF $3.50 $49,962.50 31.04 Removal and Disposal of Excess Alley Base 20 CY $65.00 $1,300.00 31.05 Removal & Disposal of Unsuitable Alley Base 400 CY $65.00 $26,000.00 31.06 Recycle Alley Base 25 CY $100.00 $2,500.00 31.07 Haul & Place Asphalt Millings 200 CY $75.00 $15,000.00 31.08 Install Aggregate Pan 5,000 LF $8.50 $42,500.00 31.09 Install Aggregate 50 CY $88.00 $4,400.00 31.10 Apply Soil Stabilizer (.2 gal/SY) 10,000 GAL $2.25 $22,500.00 31.11 Structure Adjustment (Lowering)2 EA $750.00 $1,500.00 31.12 Structure Adjustment (Raising)2 EA $850.00 $1,700.00 31.13 Tree and Bush Trimming 16 HR $500.00 $8,000.00 31.14 Weed Removal 10,000 LF $1.50 $15,000.00 31.15 Erosion & Sediment Control 1 LS $15,000.00 $15,000.00 31.16 Work Zone Traffic Control 1 LS $20,000.00 $20,000.00 31.17 Minor Contract Revisions 1 EA $45,000.00 $45,000.00 Total Bid: $491,612.50 Page 313 of 553 1 31.0 Special Provisions. The following specifications apply directly to the contract bid items. 31.01 MOBILIZATION General This work consists of the mobilization of personnel, equipment and supplies at the project site in preparation for work on the planned project as shown in Attachment A: Project Map. This item shall also include the establishment of the Contractor's offices, buildings and other necessary facilities, and all other costs incurred or labor and operations which must be performed prior to beginning the other items under the Contract. Method of Measurement and Basis of Payment This work will be paid for at the contract unit price per LUMP SUM for MOBILIZATION. This unit price shall include all labor, materials, and equipment necessary to complete the work as described herein. Measurement and payment shall be made in accordance with Article 626.02 of the 2022 edition of the Colorado Department of Transportation Standard Specification for Road and Bridge Construction. 31.02 ALLEY GRADING (11’ WIDE) (Non-Asphalt Milling Alleys) General This item shall consist of surveying, grading and re-compacting alleys to improve drainage and rideability. Specifically, this bid item is to grade alleys that did not receive millings from the 2023 Mill and Overlay Project. Construction Requirements Contractor shall grade straight line profiles from bounding adjacent street to bounding adjacent street, with smooth transitions where crest and sag curves are necessary. Contractor shall survey two points with leveling rod and total station on each alley to ensure positive fall to the street or alley inlets as needed. Grading shall result in a troughed alley cross-section, with each half of the alley pitched between 5.0% and 7.0% 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 private access facilities (driveways, sidewalks, fence gates, etc.) throughout the alley and to match the cross-section at paved alley entrance aprons. Where driveways are not immediately adjacent to the 11’ travel path, the contractor shall make necessary grading adjustm ents outside the 11’ to match the existing driveway grades within the alley right of way. Windrows or berms created from grading shall not be higher that 1” in front of driveways. Contractor shall remove excess alley base in front of driveways and charge to REMOVAL AND DISPOSAL OF EXCESS ALLEY MATERIAL. 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 and have locates on the ground. The Contractor shall use extreme caution around areas that have locates down. All damage to existing utility lines or adjacent facilities shall be repaired promptly at the Contractor’s expense. Page 314 of 553 2 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 to the satisfaction of the Engineer or until the top 6” below the finished surface has a density of at least 95 percent of the maximum as determined by AASHTO T 180 modified by CP 23. The moisture content shall be at ± 2 percent of optimum moisture content. Alleys shall be compacted immediately after grading is complete. After compaction, Contractor shall perform a proof roll under the supervision of the Engineer or Inspector. The proof roll shall be performed with a suitable piece of construction equipment that exerts a minimum 18-kip axle load. If an alley does not pass a proof roll test, then the Inspector or Engineer will mark out the area that didn’t pass with marking paint. The Engineer will then determine the proper alley improvement necessary. Additional alley improvement measures shall be the following bid items: • REMOVAL & DISPOSAL OF UNSUITABLE MATERIAL • FURNISH & PLACE ROADWAY BASE • HAUL & PLACE ASPHALT MILLINGS • INSTALL AGGREGATE PAN • INSTALL AGGREGATE • INSTALL RECYCLE ALLEY BASE Method of Measurement and Basis of Payment This work shall be paid for as ALLEY GRADING (11’ WIDE) (Non-Asphalt Milling Alleys) at the contract unit price per LINEAL FOOT. ALLEY GRADING (11’ WIDE) (Non-Asphalt Milling Alleys) 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 (11’ WIDE) (Non-Asphalt Milling Alleys). The contract unit price shall include any surveying or layout necessary to meet the grading requirements. 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 (11’ WIDE) (Non-Asphalt Milling Alleys). Grading outside the 11’ width to tie into driveways, sidewalks, or other private access facilities shall be incidental to ALLEY GRADING (11’ WIDE) (Non-Asphalt Milling Alleys). An alley will not be accepted as complete until it is graded properly and had the stabilizer applied. If an alley deteriorates after it is graded and prior to the stabilizer application, the contractor shall re-grade at no additional cost to the contract prior to stabilizer application. Removal of weeds, grass, shrubs, or other plant material within the 11’ grading area shall be included in the cost ALLEY GRADING (11’ WIDE) (Non-Asphalt Milling Alleys). 31.03 ALLEY GRADING (11’ WIDE) (Asphalt Milling Alleys) General This item shall consist of surveying, grading and re-compacting alleys to improve drainage and rideability. Specifically, this bid item is to grade the alleys that received asphalt millings Page 315 of 553 3 from the 2023 mill and overlay project. The intent is to ensure that these alleys are surveyed, graded, and compacted properly. These alleys and linear footage of grading length shall be determined and chosen by the City Engineer. Construction Requirements Contractor shall grade straight line profiles from bounding adjacent street to bounding adjacent street, with smooth transitions where crest and sag curves are necessary. Contractor shall survey two points with leveling rod and total station on each alley to ensure positive fall to the street or alley inlets as needed. Grading shall result in a troughed alley cross-section, with each half of the alley pitched between 5.0% and 7.0% 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 private access facilities (driveways, sidewalks, fence gates, etc.) throughout the alley and to match the cross-section at paved alley entrance aprons. Where driveways are not immediately adjacent to the 11’ travel path, the contractor shall make necessary grading adjustments outside the 11’ to match the existing driveway grades within the alley right of way. Windrows or berms created from grading shall not be higher that 1” in front of driveways. Contractor shall remove excess alley base in front of driveways and charge to REMOVAL AND DISPOSAL OF EXCESS ALLEY MATERIAL. 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 and have locates on the ground. The Contractor shall use extreme caution around areas that have locates down. All damage to existing utility lines or adjacent facilities shall be repaired promptly at the Contractor’s expense. 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 to the satisfaction of the Engineer or until the top 6” below the finished surface has a density of at least 95 percent of the maximum as determined by AASHTO T 180 modified by CP 23. The moisture content shall be at ± 2 percent of optimum moisture content. Alleys shall be compacted immediately after grading is complete. After compaction, Contractor shall perform a proof roll under the supervision of the Engineer or Inspector. The proof roll shall be performed with a suitable piece of construction equipment that exerts a minimum 18-kip axle load. If an alley does not pass a proof roll test, then the Inspector or Engineer will mark out the area that didn’t pass with marking paint. The Engineer will then determine the proper alley improvement necessary. Method of Measurement and Basis of Payment This work shall be paid for as ALLEY GRADING (11’ WIDE) (Asphalt Milling Alleys) at the contract unit price per LINEAL FOOT. ALLEY GRADING (11’ WIDE) (Asphalt Milling Alleys) 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 (11’ WIDE) Page 316 of 553 4 (Asphalt Milling Alleys). The contract unit price shall include any surveying or layout necessary to meet the grading requirements. 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 (11’ WIDE) (Asphalt Milling Alleys). Grading outside the 11’ width to tie into driveways, sidewalks, or other private access facilities shall be incidental to ALLEY GRADING (11’ WIDE) (Asphalt Milling Alleys). Removal of weeds, grass, shrubs, or other plant material within the 11’ grading area shall be included in the cost ALLEY GRADING (11’ WIDE) (Asphalt Milling Alleys). 31.04 REMOVAL AND DISPOSAL OF EXCESS ALLEY BASE General This item shall consist of removal and disposal of excess alley material generated by grading only. Excess Alley Material is collected by removing berms (if any) that are created in front of alley garage pads, or along the edges of the alley, as a result of grading the “V” Channel. For a standard 600’ alley within the City of Englewood, this amount is approximately 0.5 cubic yards per alley based off past year’s projects. For amounts greater than 0.5 CY/alley, Contractor must provide justification through documentation of truckloads or soil volume calculations. Construction Requirements Spoils generated by alley grading shall be stockpiled, removed before the end of the working day, and disposed of offsite by the contractor. Contractor shall at their digression, keep track of the excess alley base generated as some bid items include soil removal in their price. This may require the contractor to perform soil volume calculations to determine the amount in their truck that is not base material and can’t be billed for. Disposal is assumed to utilize a 5 cubic yard truck. Measurement and Payment This work shall be paid for as REMOVAL AND DISPOSAL OF EXCESS ALLEY BASE per CUBIC YARD. This unit price shall include all labor, material, and equipment necessary to complete the work as described herein. The measurement shall be 0.5 CY per alley where material is removed, unless the contractor supplies detailed information regarding the actual soil volume removed. Contractor and City shall come to an agreed-to volume-per-load of material. All truck loads shall be verified for fullness by the Engineer or Inspector prior to leaving the site. If no removal and disposal of excess alley material was performed on an alley, no payment shall be made for that alley. 31.05 REMOVAL AND DISPOSAL OF UNSUITABLE ALLEY BASE General This item is for the removal and disposal of in-situ soil amounts removed for alley improvement bid items: - HAUL & PLACE ASPHALT MILLINGS - INSTALL AGGREGATE PAN Page 317 of 553 5 - INSTALL AGGREGATE OR as directed by Inspector or Engineer. Truck loads will not be considered. Construction Requirements Contractor shall remove unsuitable material down to the depth designated by the Engineer or Inspector. 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. Disposal is assumed to utilize a 5 cubic yard truck. Contractor may temporarily store limited material at the City Yard in Englewood with the City’s permission. The City may elect to keep some of the unsuitable alley base stored in the City Yard at the City’s digression. Contractor shall plan and or be prepared to dispose of all unsuitable alley base at a disposal site outside of the Englewood City Limits. All unsuitable base not kept on the City yard must be disposed of by the contractor outside of the Englewood City Limits. Measurement and Payment This work shall be paid for as REMOVAL AND DISPOSAL OF UNSUITABLE ALLEY BASE at the contract unit price per CUBIC YARD. This unit price shall include all labor, material, and equipment necessary to complete the work as described herein. Quantity for payment shall be based on the in-situ volume of material designated for removal by the Engineer or Inspector. 31.06 RECYCLE ALLEY BASE General This item is intended for the relocation, placement, and compaction of suitable alley base material from one alley to another. Recycled Alley Base is used to raise alleys to ensure proper drainage, or to fill potholes that become visible due to the soil stabilizer application. Construction Requirements At the discretion of the engineer, the contractor shall stockpile excess suitable 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. Recycled alley base shall be installed to match existing alley grade. Stockpiled material shall be clearly and safely cordoned off. The contractor shall submit a plan to the engineer of how excess material shall be counted so as not to interfere with quantities of material hauled off site and disposed of. The contractor shall supply to the engineer an up-to-date weekly quantification of material re- used. The contractor shall supply detailed information regarding the hauling equipment’s capacity, shall allow City staff to measure the equipment or loads at any time, and shall come to an agreed-to volume-per-load of material. All loads shall be verified for fullness by the Engineer or Inspector prior to being transported. Page 318 of 553 6 City staff will specify a depth of placement on a case-by-case basis, based on site conditions. Depth shall be specified between 2” and 4”. Recycled material shall be installed to match existing alley grade. Recycled material shall be installed and compacted to conform to the slopes and grades for alleys as shown on the plans. Method of Measurement and Basis of Payment This work will be paid for as RECYCLE ALLEY 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. No change in price shall be made for material hauling distance. Material moved within a single alley shall not be paid for as RECYCLE ALLEY BASE but shall be included in the cost of ALLEY GRADING (11’ WIDE) (Non-Asphalt Milling Alleys) 31.07 HAUL & PLACE ASPHALT MILLINGS General This item shall consist of loading asphalt millings from the City of Englewood Service Yard, delivering to a designated alley, and grading the millings. The City’s Service Center is located at 2800 S Platte River Drive in Englewood, CO. Construction Requirements Contractor shall coordinate with the Engineer and Service Center staff to gain access to the service center where the millings are stockpiled. City equipment will be available to load millings onto a Contractor provided truck. Contractor shall load and haul the millings from the City’s service yard to the designated alley. The contractor shall supply detailed information regarding the hauling truck’s capacity, shall allow City staff to measure the truck’s bed or hauled material at any time, and shall come to an agreed-to volume-per-load of material. All truck loads shall be verified for fullness by the Engineer or Inspector prior to leaving the site. City Inspector or Engineer will specify a depth on a case-by-case basis, based on site conditions. Depth shall be specified between 2” and 4”. Asphalt millings shall be graded and compacted to the same requirements specified under the ALLEY GRADING (11’ WIDE) item. Grading and compaction shall be considered incidental to this bid item. Material shall be installed at the graded alley elevation. Method of Measurement and Basis of Payment This work shall be paid for as HAUL & PLACE ASPHALT MILLINGS at the contract unit price per CY for the amount of material placed. The unit price shall include all labor, equipment, and material necessary to complete the work as described herein. Quantity for payment shall be the based on the in-place volume of material installed and compacted. 31.08 INSTALL AGGREGATE PAN General Page 319 of 553 7 This item shall consist of furnishing, placing, and compacting an aggregate pan in alley centerline as shown on the plans or as designated by the Inspector or Engineer. Material Furnished aggregate must be CDOT Class A Filter Material, (1.5” Crushed Rock) according to Article 703.09 of the Colorado Department of Transportation Standard Specifications for Road and Bridge Construction (2022). Construction Requirements Soil excavation shall be removed and disposed of as the bid item: Removal and Disposal of Unsuitable Alley Base. Contractor shall excavate a trench centered at the alley flowline which is 6” in depth and 18” in width. Contractor shall furnish the material and place at locations designated by the engineer. Contractor shall compact the aggregate to the satisfaction of the Engineer by means of a vibratory roller. Other acceptable means of compaction would be two tire passes over the rock with a water truck that is no less than half full. Method of Measurement and Basis of Payment This work shall be paid for as INSTALL AGGREGATE PAN at the contract unit price per LF for the length of aggregate pan installed. The unit price shall include all labor, equipment, and material necessary to complete the work as described herein. Contractor shall supply load tickets for all material placed. 31.09 INSTALL AGGREGATE General This item shall consist of furnishing, placing, and compacting aggregate in alleys as designated by the Inspector or Engineer. The intent of this bid item to install crushed rock in sag curves with no drain. The rock will essentially act as a large French drain and give ponded water somewhere to collect and filter into the subgrade. Material Furnished aggregate must be CDOT Class A Filter Material, (1.5” Crushed Rock) according to Article 703.09 of the Colorado Department of Transportation Standard Specifications for Road and Bridge Construction (2022). Construction Requirements Contractor shall furnish the material and place at locations designated by the engineer. Contractor shall compact the aggregate to the satisfaction of the Engineer by means of a vibratory roller. Page 320 of 553 8 Soil excavation shall be removed and disposed of as the bid item: Removal and Disposal of Unsuitable Alley Base. Method of Measurement and Basis of Payment This work shall be paid for as INSTALL AGGREGATE at the contract unit price per CY (cubic yard) for the volume of aggregate installed. The unit price shall include all labor, equipment, and material necessary to complete the work as described herein. Contractor shall supply load tickets for all material placed. 31.10 APPLY SOIL STABILIZER (.2 gal/sy) General This item shall consist of applying a magnesium chloride dust control and soil stabilization product. Typical application covers 28 alleys per truck at .20 gallons per square yard. Contractor shall not apply stabilizer on millings. Contractor may be required to create a map of alleys suitable for soil stabilizer application and shall be responsible for ensuring the application is not applied on millings in the field. Material Contractor shall use Envirotech Services, Inc. Durablend™ or approved equivalent. Durablend™ application rate is 0.20 gallons per square yard. 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. Contractor shall make efforts to ensure none of the product ends up on the streets or sidewalks. If any of the product ends up on the street or sidewalk, the contractor shall clean it immediately after the application process is complete. Contractor shall ensure that the application is applied 1’ away from the back of sidewalks. Puddles are a sign that the alley wasn’t graded properly and there are low spots. The contractor will be notified of any puddles seen by the inspector. Due to the typically small size of stabilizer ponding, the puddles shall be filled with RECYLED ALLEY BASE utilizing 5 gal buckets. Delivery Tickets shall be provided to the Engineer on a daily basis which verify the quantity (volume) 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 STABILIZER (.2 gal/sy) at the contract unit price per SY. This unit price shall include all labor, material, and equipment necessary to complete the Page 321 of 553 9 work described herein. Payment will be contingent upon verification of the specified application rate. 31.11 STRUCTURE ADJUSTMENT (LOWERING) General This work shall consist of adjusting existing utility manhole structures and frames. 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 1’ below the bottom of the existing frame. 31.12 STRUCTURE ADJUSTMENT (RAISING) General This work shall consist of adjusting existing manhole 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 Page 322 of 553 10 Contractor shall fully expose the top of the manhole or inlet frame and lid. Contractor shall cle ar 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 height 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 structure up to 1’ above the existing structure grade. 31.13 TREE AND BUSH TRIMMING General This work shall consist of trimming miscellaneous bushes and trees that extend into the alley right of way as shown on the plans or as designated by the City Engineer or City Inspector. Construction Requirements Contractor shall trim all trees, bushes, and brush per the typical alley section. 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. Tree and bush trimming measurement shall include trimming on both sides of the alley. All trimmings must be removed and disposed of offsite at the end of each workday. Contractor shall use hedgers, clippers, pole saws, or chain saws. Contractor must get approval from Engineer prior to the use of any other method of vegetation control not listed in this specification. Contractor shall cut branches of bushes and trees flush. Contractor shall not cut trees outside of the ROW or on the private side of fences. Contractor shall be responsible for damages done to vegetation on private property. Method of Measurement and Basis of Payment This work shall be paid for as TREE AND BUSH TRIMMING at the contract unit price per HOUR. This unit price shall include all labor, equipment, and material necessary to complete the work described herein. The unit price shall include trimming any branches which hang into the alley from above 15’. 31.14 WEED REMOVAL General This work shall consist of removing and disposing of weeds located in the alley centerlines. This bid item only applies to alleys that are not scheduled for grading. Construction Requirements Attachment A – Project Map provides a list of alleys that have weeds in their centerlines that need to be removed. This bid item shall begin after all alleys have been graded. Weed removal and offsite disposal shall be performed with the contractors means and methods without altering the channel centerline. If the channel centerline is affected during weed removal, contractor shall ensure the v-channel is reshaped and compacted to the typical alley section as shown on the cover of the plans Attachment A – Project Map. Page 323 of 553 11 Method of Measurement and Basis of Payment This work shall be paid for as WEED REMOVAL at the contract unit price per LINEAR FOOT (LF) as marked out by the inspector in the field. This unit price shall include all labor, equipment, and material necessary to complete the work described herein. 31.15 EROSION & SEDIMENT CONTROL General 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; - Rock (curb) Socks (x40 minimum) - Inlet Protection Device (x6) 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. 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. Contractor shall place rock (curb) socks on the downstream sides of each alley opening during grading and stabilization operations. 20 Alleys should be stabilized at a time, so the Contractor can expect a minimum of 40 rock (curb) socks. Known inlets to be protected are shown on the plans denoted as a blue square. If alley inlet is found that is not marked on the plan sheet, Contractor shall protect the inlet prior to and during construction operations. Other erosion control measures shall be at the contractor’s discretion to ensure sediment from the project site does not leave the site. 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. Results to be documented in writing. 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. 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 Page 324 of 553 12 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. 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. Payment for EROSION & SEDIMENT CONTROL as a lump sum will be made as a percentage of the total work completed, rounded to the nearest 10%. 32.16 WORK ZONE TRAFFIC CONTROL 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. Traffic control is expected to be limited to traffic cones and public notifications attached to traffic cones. Material All traffic control equipment shall conform to applicable portions of the most recent edition of the Manual on Uniform Traffic Control Devices. - Large Traffic Cones (x2 minimum). One at each end of the alley being worked on. - Large Traffic Cones. (x40 minimum) One at each end of the alleys during stabilizer application. - Small to Medium sized traffic cones (x10 minimum) around equipment parked on street. Construction Requirements The City has provided the minimum required traffic control above based on working one alley at a time and applying stabilizer to 20 alleys at a time. Contractor will need to adjust number of traffic devices depending on how many alleys they work at a time. Contractor shall submit a traffic control plan at least 10 days prior to construction. During grading operations, alleys must remain open to local traffic unless otherwise approved by the Engineer. Contractor will only need to close alleys during the application of the stabilizer. Contractor will be required to post information signs informing the public of the upcoming alley work at the entrances of alleys. Signs shall be posted at each alley entrance at least 48 hours prior and not more than 72 hours prior to performing any work in the alley. Signs must be weather resistant and shall be a minimum of 24” x 36” unless otherwise approved by the Engineer. 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. Updated signs shall be placed for each operation that passes through or disrupts accessibility to the alleys. Signs must contain the following information: Page 325 of 553 13 • City of Englewood Logo • Contractor Name or Logo with contractor phone number • What work will be taking place • What Date the work will be taking place Information signs must be approved by the Engineer prior to use. Signs can be placed on Traffic Cones at the entrances of each alley. Method of Measurement and Basis of Payment This work will be paid for as WORK ZONE TRAFFIC CONTROL 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. 31.17 MINOR CONTRACT REVISIONS General Miscellaneous modifications in the work, ordered by the Project Engineer in the form of a written or verbal field order, will be considered a minor contract revision. If the contractor feels that a field order issued by the Engineer entitles the contractor to a change in the total contract price or time, or both, (i.e. the contractor feels that the field order involves costs over and above the amount available in the Minor Contract Revisions bid item) then the Contractor shall notify the Engineer, in writing, within 5 days after receipt of the field order. The Contractor shall not execute any such field order changes ordered by the Engineer pending the receipt of a written Change Order document executed either by the Director of Public Works, City Manager or Mayor authorizing an increase in the total contract price. Any such work completed by the contractor prior to receipt of an executed Change Order will be at the contractor’s risk and be subject to removal by the contractor should a Change Order not be approved and executed by the City Manager or Mayor for such work. Page 326 of 553 i GENERAL CONDITIONS OF THE CONTRACT TABLE OF CONTENTS Article 1. DEFINITIONS AND INTERPRETATION .............................................................................. 1 1.1 Definitions .............................................................................................................................. 1 1.2 References .............................................................................................................................. 4 1.3 Intention of Terms .................................................................................................................. 4 1.4 Computation of Time ............................................................................................................. 4 1.5 Abbreviations ......................................................................................................................... 4 1.6 Interpretation ......................................................................................................................... 5 Article 2. PRELIMINARY MATTERS ................................................................................................ 6 2.1 Delivery of Bonds and Evidence of Insurance ........................................................................ 6 2.2 Notice to Proceed................................................................................................................... 6 2.3 Authority of the City Manager ............................................................................................... 6 2.4 Plans and Specifications ......................................................................................................... 6 2.5 Special Work ........................................................................................................................... 6 2.6 Pre-Construction Meeting ...................................................................................................... 6 2.7 Contractor’s Understanding of Work ..................................................................................... 7 2.8 Contractor’s Representation .................................................................................................. 7 2.9 Other Work ............................................................................................................................ 7 2.10 Notices ................................................................................................................................... 7 2.11 Contractor’s Signs .................................................................................................................. 7 2.12 Publicity and Advertising ........................................................................................................ 7 Article 3. PAYMENTS ................................................................................................................... 7 3.1 Measurement of Work Performed......................................................................................... 7 3.2 Payments to Contractor and Completion .............................................................................. 7 3.3 Appropriate of Funds ........................................................................................................... 12 3.4 Payment for Increased or Decreased Quantities ................................................................. 12 3.5 Payment for Omitted Items ................................................................................................. 12 3.6 Extra and Force Account Work ............................................................................................. 12 3.7 Partial Payments .................................................................................................................. 13 3.8 Taxes / Direct Purchase Option ............................................................................................ 13 3.9 Liens ..................................................................................................................................... 14 3.10 Deductions ........................................................................................................................... 15 Article 4. COMPLETION, TIME and DELAYS IN CONSTRUCTION .................................................... 15 4.1 Delays ................................................................................................................................... 15 4.2 Construction Schedule ......................................................................................................... 15 4.3 Subcontracting or Assigning of Contract .............................................................................. 16 4.4 Commencement of Work ..................................................................................................... 16 4.5 Limitation of Operations ...................................................................................................... 16 4.6 Progress Schedule ................................................................................................................ 16 4.7 Character of Workman and Equipment ............................................................................... 17 4.8 Suspension of Work ............................................................................................................. 17 4.9 Suspension of Work for City’s Convenience ........................................................................ 18 4.10 Suspension of Work Due to Order of City, County, State or Federal Court or Agency ........ 18 4.11 Suspension of Work Resulting from Contractor’s Failure to Perform ................................. 18 Page 327 of 553 ii 4.12 Contract Time ....................................................................................................................... 18 4.13 Liquidated Damages ............................................................................................................. 19 4.14 Adjustment for Suspended Work ......................................................................................... 20 4.15 Termination of Contract ....................................................................................................... 20 4.16 Termination for Cause .......................................................................................................... 20 4.17 Termination for Convenience of Owner .............................................................................. 21 4.18 Cooperation with Other Contractors ................................................................................... 23 4.19 Terminating of Contractor’s Responsibility .......................................................................... 24 Article 5. PROJECT AND CONSTRUCTION MANAGEMENT ............................................................ 24 5.1 Authority of Project Engineer or Project Manager .............................................................. 24 5.2 Communications .................................................................................................................. 24 5.3 Supervision ........................................................................................................................... 24 5.4 Contractor Performance ...................................................................................................... 25 5.5 Work Performed Under Adverse Weather Conditions ........................................................ 25 5.6 Use of Materials Found on the Work Site ............................................................................ 25 5.7 Final Cleaning Up .................................................................................................................. 25 5.8 Surveys ................................................................................................................................. 25 5.9 Lines and Grades .................................................................................................................. 26 5.10 Value Engineering ................................................................................................................ 26 5.11 Sanitary Regulations ............................................................................................................. 26 5.12 Staging and Storage .............................................................................................................. 26 5.13 Salvage ................................................................................................................................. 27 5.14 Materials and Equipment Furnished by the Contractor ...................................................... 27 5.15 Substitution of Materials and Equipment ............................................................................ 27 5.16 Cutting and Patching ............................................................................................................ 28 5.17 Samples and Testing ............................................................................................................. 28 5.18 Property Rights in Materials ................................................................................................. 29 Article 6. CHANGES IN THE WORK .............................................................................................. 29 6.1 Changes and Increased or Decreased Quantities of Work ................................................... 29 6.2 Adjustments to Contract Price ............................................................................................. 35 6.3 Omitted Items ...................................................................................................................... 37 6.4 Work Not Specified But Included ......................................................................................... 37 6.5 Extra Work – Force Account ................................................................................................. 37 6.6 Unauthorized Work .............................................................................................................. 37 Article 7. SUBCONTRCTORS, SUPPLIERS AND PERSONNEL ........................................................... 37 7.1 Subcontractors ..................................................................................................................... 37 7.2 Workforce ............................................................................................................................ 38 7.3 Workers without Authorization as Laborers ........................................................................ 38 7.4 Personnel & Civil Rights ....................................................................................................... 39 Article 8. INSPECTIONS; CORRECTION OF DEFECTS ...................................................................... 40 8.1 Defective Work and Materials ............................................................................................. 40 8.2 Substituted Performance ..................................................................................................... 41 8.3 Authority and Duties of Inspectors ...................................................................................... 41 8.4 Inspection ............................................................................................................................. 41 8.5 Removal of Defective and Unauthorized Work.................................................................... 42 8.6 Geotechnical and Other Design Professional Reports, Investigations & Tests .................... 43 Article 9. PROTECTION OF PERSONS, PROPERTY AND ENVIRONMENT ......................................... 43 9.1 Protection of Persons ........................................................................................................... 43 Page 328 of 553 iii 9.2 Protection of Property ......................................................................................................... 44 9.3 Protection of Historical Sites ................................................................................................ 44 9.4 Responsibility to Repair ....................................................................................................... 44 9.5 Traffic Control ...................................................................................................................... 44 9.6 Protection of Street Signs, Traffic Signs and Signals ............................................................ 46 9.7 Utilities ................................................................................................................................. 46 9.8 Coordination with Englewood Utilities ................................................................................ 46 9.9 Notification of Affected Utility and Property Owners .......................................................... 46 9.10 Pollution Control .................................................................................................................. 46 9.11 Public Convenience and Safety ............................................................................................ 47 9.12 Use of Explosives .................................................................................................................. 47 9.13 Restoration of Property ........................................................................................................ 47 Article 10. PERMITS AND LICENSES; COMPLIANCE WITH CURRENT LAWS ...................................... 47 10.1 Compliance with Laws, Licenses and Permits ...................................................................... 48 Article 11. BONDS ........................................................................................................................ 49 11.1 Bonds .................................................................................................................................... 49 Article 12. WARRANTY ................................................................................................................ 49 12.1 Scope of Warranty................................................................................................................ 49 12.2 Owners Right to Correct ....................................................................................................... 50 12.3 Non-Emergency Warranty Work .......................................................................................... 50 12.4 Performance During Warranty Period ................................................................................. 50 Article 13. INSURANCE; RISK OF LOSS ........................................................................................... 50 13.1 General Requirements ......................................................................................................... 50 13.2 Required Policies and Limits ................................................................................................ 51 13.3 Terms of Insurance ............................................................................................................... 52 Article 14. INDEMNIFICATION ...................................................................................................... 53 14.1 Contractor to Owner ............................................................................................................ 53 14.2 Owner to Contractor ............................................................................................................ 53 14.3 No Personal Liability of the Project Engineer or Project Manager ...................................... 54 14.4 No Waiver of Legal Rights .................................................................................................... 54 Article 15. DEFAULTS, REMEDIES AND TERMINATION ................................................................... 54 15.1 Notice of Disputes and Objections ....................................................................................... 54 15.2 Negotiations of Disputes ...................................................................................................... 55 15.3 Decision ................................................................................................................................ 55 15.4 Waiver .................................................................................................................................. 55 15.5 Contractor’s Remedies ......................................................................................................... 55 15.6 Owner’s Remedies ............................................................................................................... 56 15.7 Owner’s Special Remedy for Delay ...................................................................................... 56 15.8 Attorney’s Fees .................................................................................................................... 56 Article 16. INDEPENDENT CONTRACTOR ...................................................................................... 56 Article 17. DISPOSAL; HAZARDOUS SUBSTANCES .......................................................................... 57 17.1 Removal and Disposal of Structures and Obstructions ........................................................ 57 17.2 Cleaning Up and Restorations .............................................................................................. 57 17.3 Removal of Condemned Materials and Work ...................................................................... 57 17.4 Pests & Vector Control ......................................................................................................... 57 Page 329 of 553 iv 17.5 Hazardous Substances ......................................................................................................... 57 17.6 Existing Facilities – Hazardous Substances May Exist .......................................................... 57 17.7 No Introduction of Hazardous Substances ........................................................................... 57 17.8 Suspected Hazardous Substances ........................................................................................ 57 17.9 Ordinary Course Materials ................................................................................................... 58 Article 18. ROYALTIES AND PATENTS ............................................................................................ 58 18.1 Patents and Copyrights ........................................................................................................ 58 Article 19. DRAWINGS, DETAIL AND INSTRUCTIONS ..................................................................... 58 19.1 Drawings and Specifications ................................................................................................ 58 19.2 Copies of Drawings and Specifications Furnished ................................................................ 59 19.3 Utilities ................................................................................................................................. 59 19.4 Requests for Clarification and Information .......................................................................... 59 19.5 Dimensions ........................................................................................................................... 60 19.6 Shop Drawings ...................................................................................................................... 60 19.7 Record Documents ............................................................................................................... 61 19.8 Operating Manuals and Parks Lists ...................................................................................... 61 19.9 Conformity With Plans and Allowable Deviations ............................................................... 61 19.10 Coordination of Specifications, Plans and Special Provisions .............................................. 61 19.11 Ownership to Work Product ................................................................................................ 61 Article 20. RIGHT-OF-WAY ........................................................................................................... 61 20.1 Acquisition of Right-of-Way ................................................................................................. 61 20.2 Access to Right-of-Way ........................................................................................................ 62 20.3 Rights-of-Way ....................................................................................................................... 62 Article 21. SUBMITTALS ............................................................................................................... 62 21.1 Schedule of Submittals ......................................................................................................... 62 21.2 Scope of Engineer’s Reviews ................................................................................................ 62 21.3 Review Process ..................................................................................................................... 62 Article 22. NOTICES ..................................................................................................................... 62 Article 23. OWNER’S GENERAL RESPONSIBILITIES ......................................................................... 62 23.1 Owner Performance ............................................................................................................. 62 23.2 Project Engineer or Project Manager ................................................................................... 63 23.3 Right to Bar Persons From the Work or Site ........................................................................ 63 23.4 Access to Work ..................................................................................................................... 63 23.5 Inspection ............................................................................................................................. 63 Article 24. CONCEALED CONDITIONS ............................................................................................ 64 24.1 Discovery of Concealed Physical Conditions ........................................................................ 64 24.2 Inspection and Drawing Update ........................................................................................... 64 24.3 Delays ................................................................................................................................... 64 24.4 Change Order ....................................................................................................................... 64 24.5 Costs ..................................................................................................................................... 64 Article 25. WAIVER ...................................................................................................................... 64 25.1 Waiver .................................................................................................................................. 64 25.2 No Waiver ............................................................................................................................ 64 Article 26. OTHER CONDITIONS .................................................................................................... 64 Page 330 of 553 v 26.1 Binding Contract ................................................................................................................... 64 26.2 Legislative of Judicial Decisions ............................................................................................ 65 26.3 Superseding .......................................................................................................................... 65 26.4 Professional Standards ......................................................................................................... 65 26.5 Notification in Writing .......................................................................................................... 65 26.6 Headings for Reference Only ............................................................................................... 65 26.7 One Instrument .................................................................................................................... 65 26.8 Third Party Claims ................................................................................................................ 65 26.9 Calendar Days ....................................................................................................................... 65 26.10 Written Consent ................................................................................................................... 65 26.11 Reallocation of Resources .................................................................................................... 65 26.12 Disclosure of Confidential Information ................................................................................ 66 26.13 Audit ..................................................................................................................................... 66 26.14 Federal Aid Provisions .......................................................................................................... 66 26.15 Duties & Remedies ............................................................................................................... 66 26.16 Survival ................................................................................................................................. 66 26.17 Government Immunity ......................................................................................................... 66 26.18 Construction ......................................................................................................................... 66 26.19 No Implied Representations ................................................................................................ 66 26.20 Financial Obligations of the City ........................................................................................... 66 26.21 Assignment/Transference .................................................................................................... 66 26.22 Amendments ........................................................................................................................ 66 26.23 No Third-Party Beneficiaries ................................................................................................ 66 26.24 Independent Contract – No Partnership or Agency ............................................................. 66 26.25 Governing Law, Jurisdiction, Venue ..................................................................................... 66 26.26 Attorney’s Fees and Costs .................................................................................................... 67 Page 331 of 553 1 Article 1. DEFINITIONS AND INTERPRETATION 1.1 DEFINITIONS: Whenever the following terms or pronouns are used in the Specifications and Contract Documents, the intent and meaning shall be as follows Terms defined in the Agreement or other Contract Documents, and not defined within this Article, shall have the meaning given them in the Document where defined. 1) ADDENDA: Written changes to the Bid Documents issued before the opening of Bids that clarify, correct, or change the Contract or change the date set for the Opening of Bids. 2) AMENDMENT: A change to the original contract which sets forth additional work which is new, and is outside the scope of the original contract and/or proposal. Such Amendment may require additional funding and bonding, and will require approval in accordance with the Owner’s purchasing policy. 3) BID: The offer or proposal of the Bidder submitted on the prescribed forms setting forth the prices for the Work to be performed. 4) BIDDER: The individual or entity who submits a Bid directly to Owner. 5) BID SECURITY: The security, as designated in the “Instructions to Bidders” furnished with the Bid by the Bidder as a guarantee that the Bidder will enter into the Contract and Furnish Bond(s) as required if the work be awarded to such Bidder. 6) BONDS: Bid, performance, payment and material bonds, any warranty bond, or other instruments of security furnished by the Contractor and its Surety to the Owner according to the Contract. 7) CHANGE ORDER: A written order to the Contractor, signed by the Project Engineer, on behalf of Owner, ordering a change that has been found necessary in the Work from that originally shown in the Plans and Specifications but which is still within the general scope of the Contract. If the Work is of a nature involving an adjustment of unit prices, a Supplemental Agreement shall be executed. A change order set forth upon a change order form generated by Owner, and signed by both Owner and Contractor, authorizes modifications to the existing contract documents. 8) COMPLETION DATE: The date the Contract specifies the Work is to be completed. 9) CONSTRUCTION SCHEDULE: The schedule of Work approved by Owner in accordance with the Contract Documents. 10) CONTRACT OR CONTRACT DOCUMENTS: The written Agreement executed between the Owner and the successful Bidder (“Contractor”), covering the performance of the Work and the furnishing of labor and materials, which binds the Contractor to perform the Work and furnish the labor and materials and by which the Owner is obligated to provide compensation at a mutually established and accepted rate or price. The Contract shall include Contract Agreement, Request for Bid, Bidder’s response (“Bid”), Bid Bond, Performance Bond, Payment Bond, Material Bond, Notice of Award and Notice to Proceed, Final Acceptance and Warranty Initiation, Final Receipt, Notice of End of Basic Warranty Period, Special Provisions, General Provisions, Statements of Work, Technical Specifications, Plans, Specifications, Drawings and Addenda or Change Orders, and any and all Supplemental Agreements which may be subsequently entered into to complete the Work in an acceptable manner in accordance with the Plans and Specifications. 11) CONTRACT PRICE: The total monies payable to the Contractor under the terms and conditions of the Contract. 12) CONTRACT TIME: The number of days provided in the Contract for the completion of the Project from the date of the Notice to Proceed through and including the date of Final Acceptance. The Contract Documents may require completion on or before a certain specified date. 13) CONTRACTOR: The successful bidder, who may be an individual, partnership, firm, or corporation, who executes the Contract, acting directly or through lawful agents or employees, primarily liable for the acceptable performance of the Work for which contracted, and for the payment of all legal debts pertaining to the Work. 14) CRITICAL PATH: a sequence of project tasks that add up to the longest project duration. If any tasks on the critical path experience delays, the overall project schedule must be extended. 15) DATE OF CONTRACT (“Effective Date of Contract”): The execution date in the Agreement for a Construction Contract unless otherwise specified. 16) DAY: A calendar day of twenty-four hours, from midnight to midnight, unless otherwise specified herein. Page 332 of 553 2 17) DRAWINGS: The part of the Contract Documents prepared or approved by the Project Engineer which graphically shows the scope, extent, and character of the Work to be performed by Contractor, including plans, profiles, typical cross-sections, general cross-sections, elevations, schedules, and details which show locations, character, dimensions, and details of the Work. Shop drawings and other Contractor submittals are not Drawings as so defined. 18) E-VERIFY: (formerly known as the Basic Pilot/Employment Eligibility Verification Program) An internet based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees. 19) ENGINEER (“Project Engineer”): The Owner’s designated, authorized representative assigned to the Project. The Project Engineer may have day-to-day responsibility for managing the Contract, or may designate in writing a Project Manager to provide day-to-day responsibility for managing the Contract. 20) EQUIPMENT: All machinery, together with the necessary supplies for upkeep and maintenance, and all tools and apparatus necessary for the proper construction and acceptable completion of the Work. 21) EXTRA WORK: Work not provided for in the Contract as awarded but found to be essential to the satisfactory completion of the Contract, within its intended scope. 22) FIELD ORDER: A written order effecting minor change in the Work not involving an adjustment in the Contract Price or an extension of the Contract Time, issued by the Project Engineer to the Contractor during construction. 23) FINAL ACCEPTANCE: An acknowledgment made by the Owner that all Work, as defined in Paragraph 59 herein, has been completed. The Owner’s final acceptance of the Work completed according to the Contract requirements with all parts of the Work in good condition and in working order, including completion of all punch list items, cleanup work, and delivery of all required guarantees, warranties, licenses, releases, and other deliverables. 24) FINAL PAYMENT: The final and complete payment to the Contractor in accordance with the Contract Documents. 25) FORCE ACCOUNT: A method of payment, other than lump sum or unit price, for Work ordered by a Change Order. 26) INSPECTOR: An authorized designee of the Engineer or Project Manager, assigned to make all necessary inspection of the Work performed or being performed, or of the materials furnished or being furnished by the Contractor. 27) LABORATORY: The official testing laboratories of the Owner or such other laboratories as may be designated by the Project Engineer. 28) NOTICE OF AWARD: A written notice to the successful Bidder stating their Bid has been accepted and that, in accordance with the terms of the notice to Contractors and the Specifications, such Bidder is required to execute the Contract and furnish satisfactory Bonds. 29) NOTICE OF FINAL ACCEPTANCE: The written notice of the date, as certified by the Owner, of Final Acceptance. 30) NOTICE TO PROCEED: A written notice given by Owner to Contractor fixing the date upon which the Contract Times will commence to run and on which Contractor shall start to perform the Work under the Contract Documents. 31) NOTICE OF SUBSTANTIAL COMPLETION: The written notice of the date, as certified by the Owner, of Substantial Completion. 32) NOTICE OF TERMINATION: Written notice from the Owner to the Contractor to stop Work under the Contract on the date and to the extent specified in the Notice of Termination. 33) OWNER (“City”): The City of Englewood, Colorado. 34) PARTIES: The Owner and the Contractor. 35) PAYMENT BOND: The approved form of security furnished by the Contractor and the Contractor’s surety as a guarantee to pay in full all bills and accounts for materials and labor used in the construction of the Work, as provided by law. 36) PERFORMANCE BOND: The approved form of security furnished by the Contractor and the Contractor’s surety as a guarantee of good faith and ability on the part of the Contractor to Page 333 of 553 3 execute the Work in accordance with the terms of the Plans, Specifications, and Contract. In lieu of a separate Performance Bond, a combination Performance, Labor and Material Payment Bond may be supplied by the Contractor. 37) PERFORMANCE, LABOR AND MATERIAL PAYMENT BOND: Security furnished by the Contractor and his surety as a guarantee to pay in full all bills and accounts for materials and labor used in the Work and to execute the Work in accordance with the Contract. 38) PLANS: The official Plans, working drawings, or supplemental drawings or exact reproductions thereof, approved by the Project Engineer which show the locations, character, dimensions, and details of the Work to be done and which are to be considered part of the Contract, supplementary to these Specifications. 39) PROGRESS SCHEDULE: A construction schedule prepared by the Contractor in a bar- chart, critical path or other format acceptable to the Engineer which includes the start and completion dates of all salient features of the Work as specified in Paragraph 41 hereof. 40) PROJECT: The total construction of which the Work to be provided under the Contract Documents may be the whole or a part as indicated elsewhere in the Contract Documents, and may include construction by other contractors. 41) PROJECT MANAGER: A representative of Owner authorized in writing by the Project Engineer/Engineer, and reporting to the Project Engineer/Engineer, to oversee the Project through day-to-day responsibility for managing the Contract. 42) PROPOSAL: The written offer of the Proposer, when submitted on the approved Proposal form, to perform the contemplated Work and furnish the necessary materials in accordance with the provisions of the Plans and Specifications. 43) BID BOND: The security, as designated in the Request for Bids to guarantee the Bidder will accept the Work under the terms set forth within the Bid Documents and Bid Response if the Work is awarded to such Bidder. 44) BIDDER: Any individual, firm, or corporation, submitting a Proposal or Bid for the Work contemplated within the Bid Documents... 45) REASONABLY PREDICTABLE WEATHER DELAYS: Estimated Weather Day(s) where critical path activities cannot be performed in any month, within contract weather or temperature limitations, or due to weather related conditions. 46) SHOP DRAWINGS: All drawings, diagrams, illustrations, brochures, schedules and other data which are prepared by the Contractor, a subcontractor, manufacturer, supplier, or distributor, which illustrate how specific portions of the Work shall be fabricated or installed. 47) SPECIAL PROVISIONS: Specific clauses setting forth conditions or requirements particular to the Project as set forth in the Proposal, which are not stipulated in the General Provisions or Technical Specifications. 48) SPECIFICATIONS: A part of the Contract Documents consisting of written technical descriptions of materials, equipment, construction systems, standards, and workmanship. The directions, provisions, and requirements contained therein, and which may be supplemented by Special Provisions, pertaining to the method and manner of performing the Work, or to the quantities or the qualities of materials to be furnished under the Contract. 49) STRUCTURES: Bridges, culverts, sewers, catch basins, retaining walls, manholes, headwalls, buildings, valve vaults and other features which may be encountered or included in the Work and not otherwise classified herein. 50) SUBCONTRACTOR: Any person or entity having a subcontract with the Contractor (or any Subcontractor, of any tier, whether or not authorized by the Contractor) to furnish and perform work at the Work site, including the provision of labor, materials, equipment, supplies, tools, services, or any combination of these. This definition shall not limit the Contractor’s obligations, or alter any Subcontractor’s rights, under any law or contract. 51) SUBSTANTIAL COMPLETION: The date on which the Work has progressed to the point that the Owner can beneficially occupy or utilize the Work for the purpose for which it is intended, and the Work complies with all applicable codes and regulations, including, if required, issuance of a certificate of occupancy, or certificate of suitability for use from the appropriate governmental agencies, as determined by the Owner in its sole discretion 52) SUPERINTENDENT: The executive representative for the Contractor who is present on the Work at all times, authorized to receive and fulfill instructions from the Engineer or Project Manager Page 334 of 553 4 and capable of supervising the Work efficiently. 53) SUPPLEMENTAL AGREEMENT: A written Proposal and Agreement, including Amendments, executed by the Contractor and by the Owner, with increased bonding from the surety if such agreement results in an increase in the total contract amount, covering Work not included in the Plans and Proposal or as specified in Section 1.3 which is necessary to for the proper completion of the Project. A supplemental agreement includes addendums to the original agreement, amendments to the original agreement, or change orders if such change order modifies a cost or price agreed to within the original agreement. 54) SUPPLIER: Any person or organization who supplies materials or equipment for the Work, including that fabricated to a special design, but who does not perform labor at the site. This definition shall not limit the Contractor’s obligations, or alter any Supplier’s rights, under any law or contract. 55) SURETY: The corporate body or individuals who are bound by the Bid Bond, Performance Bond and the Payment Bond or the Performance, Labor and Material Payment Bond, with and for the Contractor and which engage to be responsible for the entire and satisfactory fulfillment of the Contract and for the payment of all debts incurred in fulfilling the Contract. 56) UNIT PRICE: An amount stated in the Proposal as a price per unit of measurement for materials or services as described in the Contract. Unit Prices are intended to cover all items of work to be done and materials to be furnished to fully complete the Work in accordance with the Contract Documents (including without limitation the cost of appurtenant items of work, labor, materials, fees, bond costs, supplies, utilities, royalties, tools, forms and equipment, and all other costs (including without limitation sales and use tax, insurance, licenses, permits, profit, and other overhead) not listed separately, not shown on the Plans and Specifications, or not specified but necessary to complete the Work in accordance with the Contract Documents). 57) WEATHER DAY: Any day on which Work is scheduled in the Construction Schedule but cannot be performed within contract weather or temperature limitations or due to weather related soil conditions, and where work on critical activities cannot be performed for more than fifty percent (50%) of the work day, including any day immediately following a Weather Day on which subsequent day Work was scheduled in the Construction Schedule but cannot be performed on scheduled critical path activities due to weather related site or soil conditions for more than fifty percent (50%) of the day (drying days). 58) WORK: The term "Work" shall be understood to mean the furnishing of all labor, materials, equipment, and other incidentals necessary or convenient to the successful completion of the Project and the carrying out of all the duties and obligations imposed by the Contract. 1.2 REFERENCES: Words describing materials or Work having a well-known technical or trade meaning in an industry, unless otherwise specifically defined, shall be construed in according to well-known meanings as recognized by engineers, architects, and the trades. All references to standard specifications, methods of testing materials, codes, practices, and requirements refer to the edition of each in effect on the date of the Request for Bids unless a specific edition or revision is referenced. 1.3 INTENTION OF TERMS: Any reference to a paragraph or subparagraph within a section shall include the general provision of the section or sections and paragraph pertinent thereto. 1.4 COMPUTATION OF TIME: Any period of time referred to in the Contract Documents will be computed as consecutive calendar days. 1.5 ABBREVIATIONS: When the following abbreviations appear in the documents, they are defined as follows: AASHTO American Association of State Highway and Transportation Officials ACI American Concrete Institute ACPA American Concrete Pipe Association AGC Associated General Contractors of America, Inc. AIA American Institute of Architects AIEE American Institute of Electrical Engineers AISC American Institute of Steel Construction ANSI American National Standards Institute APHA American Public Health Association APWA American Public Works Association ASA American Standards Association ASCE American Society of Civil Engineers ASME American Society of Mechanical Engineers ASTM American Society for Testing and Materials Page 335 of 553 5 AWS American Welding Society AWSC American Welding Society Code AWWA American Water Works Association CDOT Colorado Department of Transportation CPM Critical Path Method COE City of Englewood DHS U.S. Department of Homeland Security EPA U.S. Environmental Protection Agency EWD Englewood Water Department GESC Grading, Erosion and Sediment Control IEEE Institute of Electrical and Electronic Engineers MUTCD Manual on Uniform Traffic Control Devices NBS National Bureau of Standards NCPI National Clay Pipe Institute NEC National Electric Code NEMA National Electrical Manufacturer’s Association OSHA Occupational Safety & Health Administration RCRA Resource Conservation and Recovery Act SAME Society of American Military Engineers SPWRP South Platte Water Renewal Partners SAVE Systematic Alien Verification or Entitlement program WW-P Federal Specifications Prefix 1.6 INTERPRETATION 1.6.1 Whenever, in these Specifications, or upon the Plans, or within the Contract Documents the words "directed," "required," "permitted," "ordered," "designated," "prescribed," or words of like import, are used, it shall be understood that the direction, requirement, permission, order, designation, or prescription of the Engineer or Project Manager is intended; and similarly, the words "approved," "acceptable," "satisfactory," or words of like import shall mean approved by, or acceptable to or satisfactory to the Engineer or Project Manager, unless otherwise expressly stated, subject in each case to the final determination of the Owner. 1.6.2 “Including” shall, unless otherwise specifically stated, mean including, but not limitedto. 1.6.3 Words such as “hereby,” “herein,” and “hereunder” and words of similar import shall be construed to refer to the Agreement in its entirety and the General Conditions of the Contract, subject to the provisions of the Agreement relating to resolution of differences between terms of different Contract Documents. 1.6.4 Where otherwise consistent with the context, the singular shall include the plural and the plural shall include the singular. 1.6.5 The titles of articles and sections used in the Agreement and these General Conditions of the Contract are primarily for the convenience of the reader but may be used as aids in interpreting any provision herein. If any of the provisions of the exhibits attached to the Agreement hereto or of any of the Contract Documents are inconsistent with the provisions of the Agreement, the provisions of the Agreement shall control. 1.6.6 Any references to “days” in any Contract Documents refer to calendar days. Any references in any Contract Documents or any communications between Owner and Contractor to “business days” refer to days when Owner’s administrative offices are open for the regular conduct of business. 1.6.7 When “furnish,” “install,” “perform,” or “provide” is not used in connection with services, materials, or equipment in a context clearly requiring an obligation of Contractor, “provide” is implied. 1.6.8 Unless stated otherwise in the Contract Documents, words or phrases which have a well-known technical or construction industry or trade meaning are used in the Contract Documents in accordance with such recognized meaning. Page 336 of 553 6 Article 2. PRELIMINARY MATTERS 2.1 DELIVERY OF BONDS AND EVIDENCE OF INSURANCE. When Contractor delivers the executed counterparts of the Contract to Owner, Contractor shall also deliver to Owner such bonds as Contractor may be required to furnish. Before any Work at the Site is started, Contractor and Owners shall each deliver to the other, with copies to each additional insured identified in the Article 13 below, certificates of insurance (and other evidence of insurance with either of them or any additional insured may reasonably request) which Contract and Owner respectively are required to purchase and maintain in accordance with Article 13 below. 2.2 NOTICE TO PROCEED: Owner will give the Contractor written Notice to Proceed with the Work after execution of the Contract by the Owner. The Contractor shall begin the Work by the date stated in the Notice to Proceed and diligently pursue the Work regularly and without interruption (unless otherwise directed in writing by the Engineer or Project Manager) with the work force necessary to complete the Work and achieve Substantial Completion within the Contract Time. The Contract Times will commence to run on the thirtieth day after the Effective Date of the Contract if no Notice to Proceed is provided. If any milestones are described in the Contract Documents or the approved Construction Schedule, the Work described by each milestone shall be accomplished on or before that milestone in accordance with the Contract Documents. 2.3 AUTHORITY OF THE PUBLIC WORKS DIRECTOR: The Project Engineer shall be the representative of the Owner in all matters concerning the Contract and the work to be performed thereunder, except the Public Works Director of the Owner shall have the authority to terminate the Contract as elsewhere herein provided. The Public Works Director shall make the final decision on all questions as to acceptable fulfillment of the Contract should a dispute between the Contractor and the Project Engineer occur. 2.4 PLANS AND SPECIFICATIONS: It is agreed by the parties hereto that the following list of instruments, drawings and documents which are attached or incorporated by reference constitute and shall be referred to either as the Contract Documents or the Contract and all of said instruments, drawings, and documents taken together as a whole constitute the Contract between the parties hereto and they are as fully a part of this agreement as if they were set out verbatim and in full: • Invitation to Bid and Supporting Documents • Contract (this instrument), including all Exhibits, Schedules, Attachments, and Specifications. • All Proposal Response Documents • Certificate of Insurance The Contractor shall perform all items of Work covered and stipulated in the Specifications, Proposal, Contract and Special Provisions, together with any authorized alterations, Extra Work and Supplemental Agreements, all in accordance with the Plans. The Contractor shall furnish, unless otherwise provided in the Specifications and/or Special Provisions, all materials, implements, machinery, equipment, tools, supplies, transportation and labor necessary to perform and complete the Work. The Contractor shall be responsible for takingall steps reasonablynecessary to ascertain the nature and location of the Work, and the general and local conditions which can affect the Work or the cost of the work. Failure by the Contractor to do so will not relieve it from responsibility for successfully performing Work without additional expense to Owner. The Owner will not be responsible for any understanding or representations concerning conditions, unless such understanding or representations are expressly stated in the Contract. 2.5 SPECIAL WORK: Should any construction or conditions which are not thoroughly stipulated or set forth by the plans and specifications be anticipated on any proposed Project, Special Provisions for such Work may be prepared and attached hereto as Exhibit C, and shall be considered as part of the Specifications, the same as though contained fully therein. Should any Special Provision conflict with the Specifications, the Special Provision will govern. 2.6 PRE-CONSTRUCTION MEETING: Before any Work at the Site is started, a conference attended by the Project Engineer, Project Manager, Contractor, and others as appropriate, will be held to establish a working understanding among the parties as to the Work and to discuss the schedules for progress, milestones, and completion of Work, procedures for handling Shop Drawings, and other submittals, processing Applications for Payment, and maintaining required records. The Contractor may be asked to provide specific information as to labor, tools, supplies, equipment, materials and everything necessary for and required to do, perform and complete all the work described, drawn, set forth, shown and included in said Contract Documents. At this conference Owner and Contractor each shall designate, in writing, a specific individual to act as its representative with respect to the services and responsibilities under the Contract. Such individuals shall have the authority to transmit instructions, receive information, render decisions relative to the Contract, and otherwise act on behalf of each respective party. Page 337 of 553 7 2.7 CONTRACTOR’S UNDERSTANDING OF WORK The Contractor agrees that by careful examination it is satisfied as to the nature and location of the Work, the conformation of the ground, the character, quality, and quantity of the materials to be encountered, the character of equipment and facilities needed before beginning and for the Work, the general and local conditions, and all other matters, which can in any way affect the Work under the Contract. No oral agreement with any officer, agent, or employee of the Owner either before or after the execution of the Contract shall affect or change any of the terms or obligations contained in the Contract. 2.8 CONTRACTOR’S REPRESENTATION: The Contractor represents and warrants that it has the knowledge, ability, experience, and expertise to perform the Work competently in accordance with the Contract Documents. The Contractor represents and warrants the capacity of the Contractor's construction plant, personnel, and its ability to complete the Work by the Completion Date. 2.9 OTHER WORK: The Owner reserves the right to award other contracts in connection with the Project or other activities. The Contractor must be prepared to accept the presence, on or adjacent to the construction site, of work forces of other contractors, subcontractors, tenants, government agencies and municipal, public service or utility personnel. The Contractor shall cooperate with and afford other contractors reasonable opportunity for the introduction and storage of their materials and the execution of their Work, and shall coordinate its Work with theirs. If it becomes impossible to proceed with the Work in a manner that permits all activities to progress at a reasonable pace, the Project Engineer, or Project Manager, will select the course of action that appears to best serve the Owner. 2.10 NOTICES: Except for routine communications, written notices required under this Contract and all other correspondence between the Parties will be deemed received when hand-delivered or three (3) days after being sent by certified mail, return receipt requested (unless the Parties consent to electronic delivery). The address in the Proposal will be the Contractor’s address for the delivery of notices, unless modified by the Contractor by written notice at least three (3) business days prior to the change. Notices to the Owner shall be delivered to the Project Engineer, except as provided in the Contract Documents. 2.11 CONTRACTOR’S SIGNS: No signs with Contractor’s name, logo, telephone number, address or, (etc.), shall be placed on any pole, road, structure or other surface, unless approved in writing, and in advance of such placement, by the City. 2.12 PUBLICITY AND ADVERTISING: Neither the Contractor nor its Subcontractors or Suppliers shall include any reference to the Contract nor to Work performed hereunder in any advertising or public relations materials without first obtaining the written approval of the Project Engineer. All information shall be factual, and shall in no way imply that the Owner endorses the Contractor or its services or product. The Owner shall have the right to photograph, videotape, film or in any other manner record the progress of the Work at any time and to use such materials for any purpose. Article 3. PAYMENTS 3.1 MEASUREMENT OF WORK PERFORMED: The determination of the amount of Work acceptably completed under the terms of the Contract, or as directed by the Project Engineer, or Project Manager, in writing, will be made by the Project Engineer, or Project Manager, based on measurements taken by him or his agents. These measurements will be taken according to the United States standard measure. All surface and linear measurements will be taken horizontally unless otherwise shown on Plans or specified. Structures shall be measured to the neat lines as shown on the Plans, or as ordered in writing by the Project Manager. Other acceptable methods could include noting a percentage completed or referencing the project schedule by milestone. 3.2 PAYMENTS TO CONTRACTOR AND COMPLETION 3.2.1 General - Unless expressly provided otherwise, the Unit Prices shown in the Contractor’s Proposal include the cost of all labor, materials, supplies, equipment, tools, forms, services, utilities, royalties, fees, taxes, profit, overhead, and any other thing or expense, whether temporary or permanent, necessary to complete the Project in accordance with the Contract Documents. Items not shown on the Contract Documents that are necessary to construct the Project will be considered a part of the Project whether specified or not and no separate payment will be made for these items. 3.2.2 Determination of Amounts and Quantities – The Project Engineer, or Project Manager, or his or her designee shall verify determinations of amounts and quantities of Work performed. The method of measurement of pay items subject to Unit Prices will be as specified in the Special Conditions. 3.2.3 Monthly Estimates & Progress Payments a) Before Work commences, Owner and Contractor shall designate a day of the month by which Page 338 of 553 8 Invoices for Payment shall be due. On or before such day of each month after the Construction Work has commenced (but not earlier than the first day of such month), Owner shall submit to Contractor a “Periodic Estimate for Partial Payment” based on the Schedule of Values, and such other materials and information as may be required by the Agreement. No “Periodic Estimate for Partial Payment” except the Application for Final Payment shall be made for an amount less than $1,000.00. b) The Contractor shall submit signed estimates for progress payments on a monthly basis based on “Periodic Estimate for Partial Payment” for all Work completed to date. Estimates shall be prepared by the Owner no later than ten (10) days after the end of the month for Work subject to the application. Estimates shall be produced in a format reflecting the line items for which payment is requested according to the Unit Price Form in the Proposal and any applicable Change Order, shall be dated as of the actual date of submittal (or revised submittal, as applicable), and shall reflect the Work completed and the date to which Work has been completed. The Contractor will provide support documentation for all estimates, as requested. c) Each Periodic Estimate for Partial Payment shall constitute a representation and warranty of Contractor (whether or not specifically stated) that Contractor is not in default hereunder, the amounts requested in the Periodic Estimate for Partial Payment are due hereunder, after payment of the amounts requested in the Periodic Estimate for Partial Payment, the amount remaining to be paid under the Contract is sufficient to pay for the balance of the Work, the Work performed to date is in accordance with that contemplated by the Milestone Schedule (or specifying the portions thereof that are not), Contractor has no claims hereunder and has no request for changes in the Milestone Schedule or the Contract Sum not provided for in the Periodic Estimate for Partial Payment. Each Periodic Estimate for Partial Payment shall further constitute the representation and warranty of Contractor (whether or not specifically stated) that the percentage of the Work represented to have been done in each category provided on the Schedule of Values has, in fact, been completed as of the last day of the period for which such Periodic Estimate for Partial Payment has been submitted. The period covered by a Periodic Estimate for Partial Payment shall end not earlier than ten (10) days before the due date for the Periodic Estimate for Partial Payment, unless Contractor and Owner agree otherwise in writing. d) Each Periodic Estimate for Partial Payment shall set forth the status of all Proposed Changes, Change Directives, and Change Orders. e) Contractor shall promptly submit such additional information and documents as Owner or Project Professionals may reasonably request in support of the Periodic Estimate for Partial Payment. f) The signature on each application is a representation by the Contractor to the Owner that the Work has progressed to the point indicated, that the Work covered by the application is in accordance with the Contract Documents, that the money received as a result of the application will be used to discharge the Contractor’s obligations under the Contract, and that the Contractor is entitled to payment in the amount requested. g) By signing a Periodic Estimate for Partial Payment, the Contractor warrants that: (i) the title to the Work covered by the estimate of Work completed will pass to the Owner by incorporation into the completed Work; (ii) the Work covered by previous estimates of Work completed is free and clear of liens, claims, security interests or encumbrances, except for any interest created by retainage; and (iii) no Work covered by the estimate of Work completed is subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller or otherwise imposed by the Contractor or any other person or entity. h) The Contractor shall provide notice and reason, to the subcontractor or supplier and the Owner, why the subcontractor or supplier is not being paid. The Contractor shall not include in its Periodic Estimate for Partial Payment any billing for defective Work or for work performed by Subcontractors or Suppliers if it does not intend to pay the Subcontractors or Suppliers for such work. i) Applications may include the value of acceptable materials required in the construction which have been delivered on the site of the Work or to adjacent railway siding and for which acceptable provisions have been made for preservation and storage, providing the Contractor submits with its monthly estimate paid invoices in duplicate for the material for which payment is being requested. Material paid for by the Owner becomes the property of the Owner and, in the event of the default on the part of the Contractor, the Owner may use or cause to be used such materials in construction of the Work provided for in the Contract. Page 339 of 553 9 j) The authorized Owner representative(s) must approve the applications and estimates before progress payments will be made. The Owner will make payments within thirty (30) days after the receipt of a signed monthly estimate in proper form containing all required and requested information. Progress payments are payments on accounts and shall not be construed as acceptance by the Owner of any part of the Work. k) All progress payments, except for the Final Payment, shall be subject to correction on subsequent applications after the discovery of any error. Approval of an application for payment of Work completed or actual payment by the Owner shall not foreclose the right of the Owner to examine the books and records of the Contractor to determine the correctness and accuracy of any item. l) The Contractor shall make partial payments of the amount due and payable to each of its Subcontractors and Suppliers in the same manner as the Owner is required to pay the Contractor under this article. This provision shall not create any privity of contract between the Owner and any Subcontractor or Supplier, or make any Subcontractor or Supplier a third- party beneficiary of this Contract. 3.2.4 Retainage & Withheld Amounts a) The Owner will retain five percent (5%) of the total amount earned, including Change Orders, as indicated in each approved application until Final Payment. Securities are not acceptable to the Owner in lieu of retainage. b) If the Owner finds that satisfactory progress is being made in all phases of the Contract and work is more than 80% complete, it may, upon written request by the Contractor, authorize payment from the withheld percentage. Before such payment is made, the Owner shall determine that satisfactory and substantial reasons exist for the payment and shall require written approval from any Surety furnishing the Payment Bond or Performance Bond. c) The Owner may withhold, in addition to retained percentages from Contractor payments, such an amount or amounts from any progress payment or Final Payment as may be necessary to cover: • Claims for labor or materials furnished the Contractor or any Subcontractor or reasonable evidence indicating probable filing of such claims; • Failure of Contractor to carry out the Work in accordance with the Contract Documents • Failure of the Contractor to make proper payment to Subcontractors or Suppliers; • A reasonable doubt that the Contract can be completed for the balance then unpaid; • Evidence of damage to another contractor, utility, or private property; • Claims filed in connection with the Work or reasonable evidence indicating probable filing of claims. • Uncorrected defective Work or guarantees that have not been met; • Failure of the Contractor to submit cost breakdowns, schedules, reports and other information required under the Contract; • Persistent failure to carry out the Work according to the Contract; • Failure to keep a superintendent on the Site during Construction Work. • Reasonable evidence that the Work will not be completed within the Contract Time and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; • Any tax delinquency, unpaid fee, or other unpaid financial obligation of the Contractor owed to the Owner; • Any request that the Owner pay additional compensation to another contractor as a result of delays in the performance of that contractor’s work caused by the Contractor’s acts or omissions; and • Any other amounts that the Owner is authorized to withhold under the Contract Documents. If the reason for withholding is removed, the Owner will make payment of the withheld sums with the next regular progress payment unless another basis for withholding exists d) Execution of the Contract by the Contractor shall constitute a waiver by the Contractor to claim any right of payment of interest upon any funds retained or withheld by the Owner pursuant to these General Conditions or C.R.S. § 38-26-107. 3.2.5 Substantial Completion a) When the Contractor considers the entire work ready for its intended use, the Contractor shall Page 340 of 553 10 notify the Project Engineer, or Project Manager, in writing that the entire Work is substantially complete, except for minor items specifically listed by Contractor as incomplete (the Contractor’s punch list), and request that the Project Engineer, or Project Manager, issue a Notice of Substantial Completion. b) Within seven (7) days after the receipt of such notice, the Contractor, Engineer, or Project Manager and any other appropriate Owner representatives shall inspect the Work to determine the status of completion and the Contractor’s punch list. • If the Project Engineer, or Project Manager, does not consider the Work substantially complete, the inspection will cease and the Project Engineer, or Project Manager, will notify the Contractor in writing giving the reasons for denial of the Notice of Substantial Completion and the Contractor will proceed with the Work. All costs associated with such premature inspection, including any compensation for additional design services and the Owner’s additional costs, shall be deducted from any payment due to the Contractor. • If the Project Engineer, or Project Manager, considers the Work substantially complete, the Project Engineer, or Project Manager, will prepare and deliver to the contractor a Notice of Substantial Completion. The Project Engineer, or Project Manager, shall attach to the notice a punch list of items to be completed or corrected before Final Acceptance. Failure to include any items on the punch list shall not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. 3.2.6 Right of Early Occupancy or Use a) The Owner shall have the right to take early possession of and to use any completed or partially completed portions of the Work, even if Substantial Completion of the Work has not occurred and even if the Work has not been fully accepted. Such possession and early occupancy shall not constitute Substantial Completion of such portions of the Work nor affect the Owner’s right to assess liquidated damages. b) If the Owner elects to take possession of and to use any completed or partially completed portions of the Work prior to Substantial Completion, an inspection shall be made by the Contractor and the Project Engineer, or Project Manager. Based upon such inspection, the Project Engineer, or Project Manager, will attempt to list all incomplete Work items observed, and shall provide the Contractor with such list. However, the absence of an item from the list shall not relieve the Contractor of responsibility to perform all of the Work. Any and all areas so occupied will be subject to a final inspection prior to Final Acceptance and the issuance of Certificate of Occupancy, if required. c) At the time of such inspection, the Parties shall also negotiate the responsibilities of the Owner and the Contractor for security, maintenance, heat, utilities, property insurance premiums, and damage to the Work. These negotiations are subject to the final approval of the Owner. d) If the Contractor believes there will be an additional cost or delay associated with completion of the Work while the Owner occupies the Work in whole or in part under this section, the Contractor shall advise the Project Engineer, or Project Manager, by Contractor Change Request of all such costs and delays at or before the time of such inspection. If the Contractor fails or refuses to furnish such cost or delay information, or fails or refuses to comply with the Contractor Change Request procedure, the Contractor shall be deemed to have waived any and all rights to assert any claim for such additional cost or delay. 3.2.7 Final Acceptance a) When the Work specified in the Contract (including all punch list items) is completed and the final cleanup has been performed, the Contractor shall notify the Project Engineer, or Project Manager, that all Work under the Contract has been completed and the Project Engineer, or Project Manager, shall, within seven (7) days after such notice, make the final inspection. b) If the Project Engineer, or Project Manager, finds that the Project has been completed according to the Contract requirements and that all parts of the Work are in good condition and in working order, the Owner, upon the recommendation of the Project Engineer, or Project Manager, shall issue a written Notice of Final Acceptance. Any Notice of Final Acceptance issued orally or without proper Owner authorization is void. c) If the Project Engineer, or Project Manager, finds that the Project has not been completed according to the Contract requirements and that not all parts of the Work are in good condition and in working order, the Project Engineer, or Project Manager, shall compile a punch list of corrective or replacement Work to be completed by the Contractor and Contract obligations yet to be satisfied that the Contractor shall complete or fulfill to the Project Page 341 of 553 11 Engineer, or Project Manager’s satisfaction, at the Contractor’s expense, as a condition precedent to the issuance of a Notice of Final Acceptance. 3.2.8 Final Settlement & Final Payment a) After Final Acceptance, the Project Engineer, Contractor, or other person designated by the Owner, as appropriate, will prepare a final estimate of the total value of all Work performed under the Contract. This will include all extra Work properly authorized and performed. All prior estimates and payments shall be subject to correction in the final estimate and payment. In the absence of error or fraud, all estimates, when approved by the Owner, shall be conclusive evidence of the Work performed and materials furnished. b) The Owner shall not authorize final payment until all items on the punch list have been completed, a Notice of Final Acceptance is issued, and the Notice of Final Settlement has been published. If the Work is substantially completed, but Final Acceptance is prevented by the unavailability of materials, or other causes beyond the control of the Contractor, and if consistent with any applicable bond, the Owner, in its sole discretion, may release to the Contractor all amounts due except for a retainage of two (2) times the cost of completing the unfinished Work as estimated by the Owner. c) Before the Owner will advertise final settlement, the Contractor shall demonstrate to the operating personnel of the Owner the proper operation and maintenance of all equipment and systems, and deliver to the Project Engineer, or Project Manager: • All guarantees and warranties; • Bound sets of required operations and maintenance manuals and instructions as required by the Contract Documents; • Record Documents required by the Contract Documents; • Satisfactory evidence that all payroll, material bills, taxes, and other indebtedness connected with the Work have been paid or otherwise satisfied; • A complete and final, unconditional waiver or release of any and all lien and claim rights from each Subcontractor, materialman, Supplier, manufacturer, and dealer for all labor, equipment and material used or furnished by each on the Work; • Consent of the Surety to final payment; • All submittals required by the Contract Documents; and • Any other documents required to be furnished by the Contract Documents d) The Work shall be advertised (Notice of Contractor’s Settlement) in accordance with C.R.S. § 38-26-107. This statute governs the maintenance and enforcement of claims for payment against the Project by Subcontractors, Suppliers and certain others. Final payment and settlement shall be made only after the Contractor has completed the foregoing requirements, and the Owner is satisfied that no claims by Subcontractors or Suppliers have been filed or remain pending. e) If any unpaid claim for labor, materials, rental machinery, tools, supplies, or equipment is filed prior to the date set for final settlement, the Owner shall withhold from payments to the Contractor sufficient funds to ensure the payment of such claim, until the same shall have been paid or withdrawn. Such payment or withdrawal shall be evidenced by filing with the Project Engineer, or Project Manager, an unconditional receipt in full or an order for withdrawal signed by the claimant or its duly authorized agent or assignee. The Owner will withhold from payment any funds it may be required by law to withhold or that it may in the determination of the Owner be entitled to withhold, and final payment will not be made until, in the sole determination of the Owner, all conditions of the Contract and of law have been met. f) If there are outstanding claims against the Contractor or its Subcontractors or for any other reason the Contractor is not able to fulfill one or more of the requirements of this section, the Owner may, at its sole discretion, waive the requirement, provided the Surety agrees to the Owner making final settlement without in any way lessening or modifying the Surety’s liability under such Bonds. g) If any overpayment was made by the Owner at any time, the Contractor shall immediately return all overpaid amounts. h) At the time of settlement, there shall be deducted from the final estimate (i) all previous payments made to the Contractor under the Contract, (ii) all amounts chargeable to the Contractor, (iii) all liquidated damages due the Owner; (iv) all unpaid taxes due and payable to the Owner; and (v) all damages and all other costs, expenses and charges properly chargeable to the Contractor under the terms of the Contract. Page 342 of 553 12 i) Subject to delays allowed by Colorado law and these General Conditions, the Owner shall make Final Payment after Final Acceptance, including the release of all retainage and withheld amounts, except as authorized by the Contract Documents. Final Payment shall constitute complete payment for all Work, labor, materials, equipment, and miscellaneous items in the Project. j) At the time of delivery to the Contractor of the final payment, the Contractor shall execute and give to the Owner a final receipt for the same. k) The acceptance of final payment shall constitute a waiver of all Claims by the Contractor except those previously made in accordance with these General Conditions which have been separately identified by the Contractor as unsettled in the final payment application, and which the Owner agrees in writing may be set over for resolution after final payment. l) All provisions of these Contract Documents, including without limitation those establishing obligations and procedures, shall remain in full force and effect notwithstanding the making or acceptance of final payment. 3.3 APPROPRIATION OF FUNDS: At present, the amount set forth in the Contract has been appropriated for the project. Notwithstanding anything contained in this Agreement to the contrary, the parties understand and acknowledge that each party is subject to Article X, § 20 of the Colorado Constitution (“TABOR”). The parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, notwithstanding anything in the Contract to the contrary, all payment obligations of the Owner are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the Owner’s current fiscal period ending upon the next succeeding December 31. Financial obligations of the Owner payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of the Owner and applicable law. Upon the failure to appropriate such funds, the Contract shall be deemed terminated. The Owner shall immediately notify the Contractor or its assignee of such occurrence in the event of such termination. 3.4 PAYMENT FOR INCREASED OR DECREASED QUANTITIES: When alterations in the Plans or quantities of Work not requiring Supplemental Agreements, as provided for above, are ordered and performed, the Contractor shall accept payment in full at the Contract unit price for the actual quantities of Work done. No allowance will be made for lost profits. Increased or decreased Work involving Supplemental Agreements will be paid for as stipulated in such agreements. 3.5 PAYMENT FOR OMITTED ITEMS: For any item omitted from the work under the provisions of Section 1.5, the Owner will pay the Contractor a fair and equitable amount for costs incurred directly related to such item prior to the date of the Owner's order to omit the item. No allowance will be made for lost profits in reimbursements to the Contractor for omitted items of Work. Acceptable materials ordered by the Contractor or delivered to the Work site prior to the date of cancellation, alteration, or suspension of the Work by order of the Project Engineer, or Project Manager, will be paid for at the actual cost to the Contractor and shall thereupon become the property of the Owner. The Contractor shall immediately submit certified statements covering all money expended in preparation for any omitted item, and he shall be reimbursed for any money expended in preparation for Work on any omitted item when such preparation has no value to the remaining items of the Contract, or for a proportionate amount based on the total Contract price over which such preparation would ordinarily be distributed when other items are included in such preparation. 3.6 EXTRA AND FORCE ACCOUNT WORK: Extra Work, for which no price is provided in the Proposal, shall be covered by a Supplemental Agreement which could be an addendum (additional work requested), amendment (change the terms of the agreement, or change order (change the specifications of original work) to be signed by both parties before such Work is commenced. Extra Work will be paid for either at a lump sum, or unit prices agreed upon, or on a Force Account basis. For all labor, teams, and foremen in direct charge of the specific operations accomplished on a Force Account basis, the Contractor shall receive the current local rate of wage, to be agreed upon before starting the Work, to which shall be added fifteen (15) percent of the sum thereof to cover cost of supervision, the rental of small tools and ordinary equipment, additional Bond, Unemployment Insurance, all overhead and any other costs not specifically stated. In addition, the Contractor shall be paid a sum equal to the Worker's Compensation insurance premium, the actual costs of Social Security taxes computed on the base rate for the class of Work involved for the actual amount of the payroll, and the public liability and property damage insurance premium; provided, however, that nothing in this Section will change the legal status of the relationship between the Parties to this Agreement. For all materials furnished and used by the Contractor on a Force Account basis, he shall receive the actual cost of such materials, including transportation charges as shown by original receipted bills, to which shall be added fifteen (15) percent of said actual cost. Page 343 of 553 13 For machine power tools or equipment, including fuel and lubricant, used on Force Account Work, payment for the same will be made on a rental basis at the rate agreed upon between the Contractor and the Project Engineer, or Project Manager, to which no rate or percentage shall be added. The compensation as herein provided shall be received by the Contractor as payment for Extra Work done on a Force Account basis. The Contractor shall make no claim for Force Account Work, unless performed on written order and in accordance therewith. The Contractor's representative and the Inspector shall compare records of Extra Work done on a Force Account basis at theend of eachday. Copies of these records shall be made upon suitable forms provided for this purpose, and signed by both the Inspector and the Contractor's representative, one copy being forwarded to the Project Engineer, or Project Manager, and one copy to the Contractor. All claims for Extra Work done on a Force Account basis shall be submitted each month to the Project Engineer, or Project Manager, by the Contractor upon certified statements, or upon forms furnished by the Owner. Work performed prior to a written order by the Project Engineer, or Project Manager, will not be paid for. 3.7 PARTIAL PAYMENTS: The Project Engineer, or Project Manager, will make an estimate once each month, as the Work progresses, of the value of the Work performed and materials completed and in-place or delivered to the site in accordance with the Contract. On request of the Project Engineer, or Project Manager, the Contractor shall furnish a detailed estimate of the total Contract price showing the amount included therein for each category of Work, to provide a basis for determining the amount of progress payments. The market value of materials and equipment delivered to the construction site but not yet incorporated in the Work may, at the discretion of the Owner, be included with a progress payment. However, payment by the Owner for such materials and equipment shall not relieve the Contractor of the responsibility for the care of such materials and equipment because the Owner shall not be deemed to have assumed ownership of the materials or equipment until these are incorporated into the completed and accepted Work. Such increases to progress payments, if authorized, are intended only to reduce the cost of doing business with the Owner. The Owner, when awarding a contract exceeding one hundred fifty thousand dollars ($150,000) for the construction, alteration, or repair of any highway, public building, public work, or public improvement, structure, or system, including real property as defined in section 24-30-1301 (15), shall authorize partial payments of the amount due under such contract at the end of each calendar month, or as soon thereafter as practicable, to the contractor, if the contractor is satisfactorily performing the contract. The Owner shall pay at least ninety-five percent of the calculated value of completed work. The withheld percentage of the contract price of any contracted work, improvement, or construction may be retained until the contract is completed satisfactorily and finally accepted by the Owner. Where the Contract price does not exceed such amount, from the total of the estimate so ascertained will be deducted an amount equivalent to five (5) percent of the whole, to be retained by the Owner until acceptance of the entire Contract, and the balance of the sum equivalent to ninety (90) percent of the whole shall be certified by the Project Engineer, or Project Manager, for payment. In addition, Owner shall retain from all progress payments an amount equal to all statutory claims filed against Contractor. No partial payments except final payment will be made for a sum less than $l,000.00. The estimates will be approximate only, and all partial or monthly estimates and payments shall be subject to correction in the estimate and payment rendered following discovery of an error in any previous estimates or payments. Should any defective Work or material be discovered, or should a reasonable doubt arise as to the integrity of any part of the Work completed previous to the final acceptance and payment, there will be deducted from the first payment rendered after the discovery of such Work an amount equal in value to the defective or questioned Work, and this Work will not be included in a subsequent estimate or payment until the defects have been remedied or the causes for doubt removed. 3.8 TAXES / DIRECT PURCHASE OPTION 3.8.1 Sales and Use Tax - Contractor shall only include sales and use tax levied by the City of Englewood and Arapahoe County on materials in its Schedules of Values, and Subcontractors and Suppliers shall only include such amounts in their Bids. The Owner will furnish to Contractor, on request by the Contractor, the necessary exemption certificates to aid the Contractor in the recovery or avoidance of any such taxes paid or otherwise due to be paid by Contractor for materials and equipment built into the Project, or to support the Contractor's failure to pay such taxes, as the case may be. 3.8.2 Tax Exemption - In accordance with Colorado Revised Statutes Sections 39-26-114 and 39-26-203, and the related regulation of the Department of Revenue, State of Colorado, the Contractor shall apply to the Department of Revenue, and secure prior to commencing the Project an exemption certificate, which when issued by the Department of Revenue will enable the Contractor to purchase for the Project all materials free of State Sales and Use Taxes and Regional Transportation District (RTD) Tax, provided that any building permit fee shall be included in any Proposal with respect to the Project. Further, if awarded the Project, no Englewood sales and/or use tax shall be included in any billing with respect to the Project. This provision shall apply to all contractors, subcontractors and material suppliers. When Englewood sales tax is paid to licensed Englewood vendors for materials, which become part of the Project by a Contractor, the City of Englewood will refund that tax to the Contractor upon receipt of an application from the Contractor at the conclusion of the Project. Accompanying the application must be the material receipt(s) displaying a description of the items(s) purchased, date of purchase, amount of purchase, tax paid and any Page 344 of 553 14 other documentation and information which may be required by the Owner to substantiate the payment and help validate a refund. 3.8.3 Direct Purchase Option - At Owner’s option, Contractor and Owner shall cooperate with one another so that Owner may purchase or contract directly for such items or Contractor and Owner shall make other appropriate arrangements as necessary to avoid incurring taxes, fees, and other costs. In such circumstances, Contractor shall act as agent for Owner in effecting such purchasing and contracting, Contractor shall have all the responsibilities as to such portions of the Work as Contractor otherwise has with respect to the Work. Contractor shall be responsible to expedite, arrange for and receive delivery of all such purchases, regardless of whether made by Contractor or Owner, and shall promptly examine deliveries to ascertain whether or not they comply with the requirements of the Contract Documents. Contractor shall promptly notify the Owner and Architect of any delay in the delivery of such purchases, any failure to receive such purchases as needed and any failure of such purchases to comply with the Contract Documents 3.8.4 Direct Supplier Payment - To the extent that Owner makes any payments directly to Suppliers, such payments shall be credited against the payments due from Owner to Contractor hereunder and shown, as incurred, on all Applications for Payment. Owner shall promptly notify Contractor and Architect, on serially numbered forms, of any amount paid directly for materials, any discounts obtained by Owner, and the amount of the credit due to Owner. 3.8.5 Tax Payment - The Contractor shall pay all sales and use taxes required to be paid, shall maintain such records in respect to his Work, which shall be separate and distinct from all other records maintained by the Contractor and shall be available for inspection by the Owner at any and all reasonable times, and shall furnish the Owner with such data, as may be necessary to enable the Owner to obtain any refunds of such taxes which may be available to the Owner under the laws, ordinances, rules or regulations applicable to such taxes. The Contractor shall require each of his Subcontractors to pay all sales and use taxes required to be paid and to maintain such records and furnish the Contractor with such data as may be necessary to enable the Owner to obtain a refund of the taxes paid by such subcontractors. The Contractors or Subcontractors who purchase materials, which become part of the Project, from governmental entities, which do not honor the exemption and thereby pay sales tax will not be reimbursed for that tax payment by the City of Englewood. The Contractor shall bear the risk of any added or increased taxes occurring during the performance of the Work. A change in taxes shall under no circumstances entitle the Contractor to an adjustment under the Contract. 3.8.6 Discounts - All discounts for prompt payment obtained by Contractor shall accrue to Owner to the extent they apply to Costs of Work payable by Owner (whether paid directly or reimbursed to Contractor). To the extent that such discounts apply to costs paid by Contractor without reimbursement, such discounts shall accrue to Contractor. All trade discounts, rebates and refunds, and all returns from sale of surplus or salvage materials and equipment, shall accrue to the benefit of Owner, and the Contractor’s agreements with others shall provide for such credits to be applied either through credits from Subcontractors and Suppliers passed through to Owner by Contractor or by payment directly to Owner. 3.8.7 Adjustments - The Contract Sum may be adjusted by Agreed Change. Contractor is obligated to pay out of its own funds any overruns of the Contract Sum not approved by Agreed Change as provided in Article 6. 3.9 LIENS 3.9.1 Title - Nothing in this contract shall be construed as vesting in Contractor any right of property in any equipment, materials, supplies, and other items provided under this contract after they have been installed in, incorporated into, attached to, or affixed to, the work or the work site. All such equipment, materials, supplies, and other items shall, upon being so installed, incorporated, attached or affixed, become the property of Owner, but suchtitle shall not release Contractor from its duty to insure and protect the Work in accordance with the requirements of thiscontract. 3.9.2 Waivers of Lien - Contractor shall, from time to time at Owner's request and in any event prior to final payment, furnish to Owner such receipts, releases, affidavits, certificates, and other evidence as may be necessary to establish, to the reasonable satisfaction of Owner, that no lien against the work or the public funds held by Owner exists in favor of any person whatsoever for or by reason of any equipment, material, supplies, or other item furnished, labor performed, or other thing done in connection with the work or this contract ("Lien") and that no right to file any Lien exists in favor of any person whatsoever. 3.9.3 Removal of Liens - If at any time any notice of any Lien is filed, then Contractor shall, promptly and without charge, discharge, remove, or otherwise dispose of such Lien. Until such discharge, removal, or Page 345 of 553 15 disposition, Owner shall have the right to retain from any money payable hereunder an amount that Owner, in its sole judgment, deems necessary to satisfy such Lien and to pay the costs and expenses, including attorneys' fees and administrative expenses, of any actions brought in connection therewith or by reason thereof. 3.9.4 Protection of Owner Only - This section shall not operate to relieve Contractor's surety or sureties from any of their obligations under the Bonds, nor shall it be deemed to vest any right, interest, or entitlement in any subcontractor or supplier. Owner's retention of funds pursuant to this section shall be deemed solely for the protection of itsown interests pendingremoval of such Liens by Contractor, and Owner shall have no obligation to apply such funds to such removal but may, nevertheless, do so where Owner's interests would thereby be served. 3.10 DEDUCTIONS 3.10.1 Owner's Right to Withhold - Notwithstanding any other provision of this contract and without prejudice to any of Owner's other rights or remedies, Owner shall have the right at any time or times, whether before or after approval of any Pay Request, to deduct and withhold from any Progress or final payment that may be or become due under this contract such amount as may reasonably appear necessary to compensate Owner for any actual or prospective loss due to: a) Work that is defective, damaged, flawed, unsuitable, nonconforming, or incomplete; b) Damage for which Contractor is liable under this contract; c) State or local sales, use, or excise taxes from which Owner is exempt; d) Liens or claims of Lien regardless of merit; e) Claims of subcontractors, suppliers, or other persons regardless of merit; f) Delay in the progress or completion of the work; g) Inability of Contractor to complete the work; h) Failure of Contractor to properly complete or document any Pay Request; i) Any other failure of Contractor to perform any of its obligations under this contract; or j) The cost to Owner, including attorneys' fees and administrative costs, of correcting any of the aforesaid matters or exercising any one or more of Owner's remedies set forth in Section 3.2 of this contract. 3.10.2 Use of Withheld Funds - Owner shall be entitled to retain any and all amounts withheld pursuant to subsection 7.12 above until Contractor shall have either performed the obligations in question or furnished security for such performance satisfactory to Owner. Owner shall be entitled to apply any money withheld or any other money due Contractor under this contract to reimburse itself for any and all costs, expenses, losses, damages, liabilities, suits, judgments, awards, attorneys' fees and administrative expenses incurred, suffered, or sustained by Owner and chargeable to Contractor under this contract. Article 4. COMPLETION, TIME AND DELAYS IN CONSTRUCTION 4.1 DELAYS: No payment, compensation, damages, or adjustment of any kind, other than extension of the contract time if received in writing by Owner shall be made to, or claimed by, Contractor because of hindrances or delays from any cause in the commencement, prosecution, or completion of the work, whether caused by Owner or any other party and whether avoidable or unavoidable other than as set forth in a change order described fully above. 4.2 CONSTRUCTION SCHEDULE: Within the time specified in the Request for Bids, the Contractor shall submit to the Owner a proposed Construction Schedule using Primavera, MS Project or other comparable Critical Path Method (CPM) scheduling software. The Construction Schedule must include all Work activities to be performed under the Contract including any work to be performed by Subcontractors and must account for all Reasonably Predictable Weather Delays. All activities should be logically tied with a critical path clearly identified. The schedule must have sufficient detail to adequately plan and manage the Work. Contractual and key milestones are to be identified. The Construction Schedule must include a brief narrative including: a) A description of the schedule critical path (series of tasks that define the overall project schedule); b) Identification of non-work days such as weekends or holidays; c) A table showing calculated Reasonably Predictable Weather Days (including drying days for each month); and d) List of assumptions used while developing the Construction Schedule. Page 346 of 553 16 It will be presumed that the Contractor, at the time of Bid, took into account the number of days which might be unavailable for Work as a result of Reasonably Predictable Weather Delays during the Contract Time. The Contractor shall calculate the average number of lost weather days for each month of the Construction Schedule as defined in section 4.12.4 below. On a monthly basis with each pay application and as requested by the Project Engineer, or Project Manager, the Contractor shall update the Construction Schedule and provide a summary report of progress on the various parts of the Work, including the status, rate of progress, estimated completion date, and cause of delay, if any. This report shall not constitute a request or approval for any change in the Contract Time. Work shall normally not be done on Saturdays, Sundays, Owner observed holidays, or outside of the daytime working hours (7:00 a.m. to 7:00 p.m.), except for such work as may be necessary for proper care, maintenance, and protection of Work already done, or in cases when the Work would be endangered or when hazard to life or property would result. No work shall be done on Sundays, holidays, or at night outside of usual daytime working hours, except in emergencies beyond the Contractor’s control, whereby the work would be endangered, or hazards to life or property would result. If the Contractor believes it may be necessary to work on Saturdays, Sundays, holidays, or at night, the Contractor shall make prior arrangements with the Project Engineer, or Project Manager, and receive written approval at least forty-eight (48) hours before such work period so that proper inspection and engineering services can be provided. Such approval may be revoked by the Project Engineer, or Project Manager, if the Contractor fails to maintain adequate equipment and lighting at night for the proper prosecution, control and inspection of the Work. If Work is done outside of approved working hours, and the Project Engineer, or Project Manager, has not assigned Inspectors to the Work, the Work performed during those periods of time may be declared defective solely on the grounds that it was not properly inspected. 4.3 SUBCONTRACTING OR ASSIGNING OF CONTRACT: No Contractual relationship will be recognized under the Contract other than the Contractual relationship between the Owner and Contractor. Contractor shall not, at any time, assign any interest in this Agreement or the other Contract Documents to any person or entity without the prior written consent of the Owner specifically including, but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law). Any attempted assignment which is not in compliance with the terms hereof shall be null and void. Unless specifically stated to the contrary in any written consent to an Assignment, no Assignment will release or discharge the Assignor from any duty or responsibility under the Contract Documents. 4.4 COMMENCEMENT OF WORK: The Contractor agrees to undertake the performance of the work under this Contract within ten (10) days from being notified to commence work by the Director of Public Works, and agrees to fully complete said work within the schedule designated in the contract plus such extension or extensions of time as may be granted by the Director of Public Works in accordance with the provisions of the Contract Documents and Specifications. The Contractor shall notify the Project Engineer, or Project Manager, at least 48 hours in advance of the time he intends to begin Work. The Contractor shall conduct Work in such a manner and with sufficient materials, equipment, and labor as is considered necessary to insure its completion within the time limit set forth in the Contract. Should the prosecution of Work for any reason be discontinued by the Contractor, with the consent of the Project Engineer, or Project Manager, he shall notify the Project Engineer, or Project Manager, at least 48 hours in advance of resuming operations. 4.5 LIMITATION OF OPERATIONS: Each item of Work shall be performed to completion without delay and in no instance will the Contractor be permitted to transfer his force from uncompleted Work to new Work without the permission of the Project Engineer, or Project Manager. The Contractor shall not open up Work to the prejudice of Work alreadystarted. 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 therequired Page 347 of 553 17 progress schedule. The Contractor shall perform the Work in accordance with the latest approved progress Schedule. In the event that the progress of items along the critical path in the project schedule is delayed, the Contractor shall revise his planning to include additional forces, equipment, shifts or hours as necessary to meet the time or times of completion specified in this Contract. Additional costs resulting therefrom will be borne by the Contractor. The Contractor shall make such changes when his progress at any check period does not meet at least one of the following two tests: a. The percentage of dollar value of completed Work with respect to the total amount of the Contract is within ten percentage points of the percentage of the Contract time elapsed,or; b. The percentage of dollar value of completed Work is within ten percentage points of the dollar value which should have been performed according to the Contractors own network analysis previously approved by the Project Engineer, or Project Manager. Failure of the Contractor to comply with the requirements under this Section will be grounds for determination that the Contractor is not performing the Work with such diligence as will ensure completion within the time of completion specified in this Contract. Upon such determination, the Owner may terminate the Contractor's right to proceed with the Work, or any separate part thereof, in accordance with the provisions contained herein. The Owner may extend thetime 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 arecareful andcompetent, and the Project Engineer, or Project Manager, may demand the dismissal of any person or persons employed by the Contractor in, about, or upon the Work who shall engage in acts of misconduct (as defined in the Federal Contractor Misconduct Database) or be incompetent or negligent in the proper performance of his or her duties, or neglects or refuses to comply with the directions given, and such person or persons shall not be employed again thereon without the written consent of the Project Engineer, or Project Manager. Should the Contractor continue to employ, or again employ such person or persons, the Project Engineer, or Project Manager, may withhold all payments which are or may become due, or the Project Engineer, or Project Manager, may suspend the Work until such orders are complied with. In the employment of labor, preference shall be given, other conditions being equal, to residents of the area wherein the Work is being done, but no other preference or discrimination among citizens of the United States shall be made, except as may be required by special labor provisions. The Contractor shall furnish such equipment as is considered necessary for the prosecution of the Work in an acceptable manner and at a satisfactory rate of progress. All equipment, tools, and machinery used for handling materials and executing any part of the Work shall be maintained in a satisfactory working condition. Equipment used on any portion of the Work shall be such that no injury to the workers, roadways, adjacent property, or other objects will result from its use. The Contract may be terminated if the Contractor fails to provide adequate equipment for the Work. 4.8 SUSPENSION OF WORK: The Owner may suspend all or any part of the Work by written order signed by the Project Engineer, or Project Manager, without invalidating the Contract, for such period or periods as it may deem necessary due to: a) Any reason for the convenience of the Owner, with or without cause, including but not limited to the availability of funding for the Project; b) An order from a state or federal court or administrative agency; or c) The Contractor’s failure to perform any provision of the Contract Documents. Upon receipt from the Project Engineer, or Project Manager, of an order to suspend the Work, the Contractor shall, within three (3) days, submit a suspension plan to the Project Engineer, or Project Manager, for acceptance. The plan shall describe how the Contractor will store all materials in a manner so that the materials will not become an obstruction or become damaged in any way, what cost effective methods it will employ to prevent damage to or deterioration of the Work and otherwise protect the Work, how suitable drainage will be provided, what temporary structures will be necessary, and how the Contractor will prepare for resuming the Work for the least possible remobilization cost. After the plan is accepted, the Contractor shall implement it in accordance with instructions received from the Project Engineer, or Project Manager. Under no circumstance shall a suspension absolve the Contractor or the Contractor’s sureties of the duties and responsibilities guaranteed under the Bonds. The Contractor shall again proceed with the Work when it is ordered to do so in writing by the Project Engineer, or Project Manager. Upon the resumption of the Work for all suspensions not involving the Contractor’s failure to perform in accord with the Contract Documents, adjustment of Contract Time, if appropriate, will be made in accordance with these General Conditions. Adjustment of the Contract Price, if any, will be within the Owner’s sole discretion and shall not in any Page 348 of 553 18 event, exceed the cost of the extra work resulting from such suspension. Such cost, if any, shall be determined in accordance with these General Conditions. 4.9 SUSPENSION OF WORK FOR OWNER’S CONVENIENCE: Upon decision to suspend the Work or any part of the Work for the Owner’s convenience, the order of suspension will extend the Contract Time for the number of days of such suspension if all Work is suspended. If the suspension applies to only a part of the Work, a time extension will not be authorized until the partial suspension has run and its effect on the entire Contract can be evaluated. In all cases of suspension for the Owner’s convenience, the costs to the Contractor will be determined in accordance with these General Conditions. Upon order of such suspension, the Contractor shall immediately begin to perform in a manner designed to minimize the costs of protecting the Work and maintaining it in a condition which will permit its resumption for the least possible remobilization cost. 4.10 SUSPENSION OF WORK DUE TO ORDER OF CITY, COUNTY, STATE or FEDERAL COURT OR AGENCY: If the suspension of work is due to an order from a City, County, State or Federal court, the order of suspension will identify the court or agency order which caused the suspension and will extend the Contract by the amount of time specified by the court or agency order. If the order causes suspension for an indefinite period of time and as a result a time extension cannot be established, the order of suspension will also be for an indefinite period of time. If the order is issued because of acts or omissions of the Contractor, the Contractor shall not be entitled to a time extension or payment for any additional costs it incurs. 4.11 SUSPENSION OF WORK RESULTING FROM CONTRACTOR’S FAILURE TO PERFORM: If a suspension order results from the Contractor’s failure to satisfactorily perform any of the provisions of the Contract, including but not limited to faulty workmanship, safety concerns, improper or inadequate manpower, equipment, supplies or supervision, or failure to perform the Work in a timely manner, the order will identify the reason, or reasons, for the order. In this circumstance, no time extension will be authorized for the Contractor and any costs to the Contractor resulting from such suspension order will not be reimbursed by the Owner. A suspension order issued under these circumstances will remain in effect until the Contractor has removed or corrected the grounds for the suspension, if applicable, or the order requiring such suspension expires by its terms. 4.12 CONTRACT TIME: Work shall be fully completed in a satisfactory and acceptable manner by the Completion Date as modified by Change Orders that may extend the project schedule due to excusable delays. 4.12.1 Delays - Delay claims fall into three categories: non-excusable; excusable/non-compensable; and excusable/compensable. Any payment for compensable delays or the granting of time extensions for excusable delays requires a properly executed Change Order. The Contractor agrees that time extensions shall constitute full compensation for any excusable/non-compensable delay, and the Contractor shall make no claim for monetary damages relating to any non-excusable delay or any excusable/non- compensable delay. 4.12.2 Non-Excusable Delay - Non-excusable delay is caused by factors within the Contractor’s reasonable control or by the Contractor’s fault. No additional time or additional compensation is allowed for non- excusable delays. Typical non-excusable delays, without limitation, include: a) Late submittal of Shop Drawings; b) Late procurement of materials or equipment; c) Insufficient personnel; d) Unqualified personnel; e) Inadequate coordination of Subcontractors or other contractors; f) Subcontractor delays; g) Late response to Owner, Project Engineer, or Project Manager, or Inspector inquiries; h) Failure to comply with the requirements of the Contract Documents; i) Construction not conforming to contract requirements making repeated re-working necessary; j) Delays resulting from the Contractor’s failure to take reasonable actions to mitigate or prevent further delays relating to any excusable delay; k) Failure to continue performance during the determination of any Contractor Change Request or claim; and l) Weather delays exceeding the Reasonably Predictable Weather Days identified on the approved Construction Schedule, unless approved as unusually severe weather days. 4.12.3 Excusable Delay a. Excusable/Non-compensable delay is caused by factors beyond the Contractor’s reasonable control, but is not the result of the Owner’s actions or omissions. An excusable/non-compensable delay entitles the Contractor to an extension of time but no additional compensation for the cost of the delay. Page 349 of 553 19 Typical excusable/non-compensable delays, without limitation, include strikes, lockouts, natural fires not caused by Contractor’s acts or omissions, unusual delay in transportation, unavoidable casualties, legal or administrative proceedings affecting the Work or the Project, and other causes beyond the Contractor’s control. b. Excusable/Compensable delay is caused by the Owner’s failure to meet an obligation within its control stated or implied in the Contract, but shall not include any action, omission, or exercise of any right under the Contract. If the Project Engineer, or Project Manager, considers a delay as compensable, the Owner will grant a time extension or reimburse the Contractor for the increased total cost of performance caused by the delay, or both, as appropriate. Typical excusable/compensable delays, without limitation, include: 1) Late approval of Shop Drawings and samples; 2) Delays in answers to field inquiries made by the Contractor; 3) Interference with the Contractor during construction: 4) Owner-caused schedule changes; 5) Design changes; or 6) Interference by another contractor’s or the Owner’s personnel. 4.12.4 Weather Delay - In order for a Weather Delay to occur, the total lost weather days must exceed the total number of such days included in the contract time as specified in the Special Provisions for the project. The Weather Delay, if any, shall be the number of days of such excess; provided that no Weather Delay shall have occurred except to the extent that Work which needs to be performed during the period of time affected by adverse weather is actually delayed in a manner that delays the critical path to completion of the Work. As used herein, a “lost weather day” shall mean a day during which actual adverse weather prevents work on activities that need to be performed on that day in accordance with the Project Schedule for fifty percent (50%) or more of Contractor’s scheduled Work for such day. Contractor shall report to Owner no later than 10:30 a.m. Mountain Time on each day Contractor claims to be a lost weather day or (ii) if Work on the Project has commenced for such day, within one hour of Contractor’s decision to suspend Work because of such adverse weather. Such report shall state that Contractor considers that a lost weather day is occurring and shall describe the weather conditions experienced and how the weather conditions have affected the Scheduled Work for such day. Unless Contractor gives such timely notice as to any day when work is adversely affected by adverse weather, Contractor shall not be entitled to claim such day as a lost weather day. 4.12.5 Time Adjustments for Weather Delays - The Project Engineer, or Project Manager, in his or her discretion, may deem weather-related delays as excusable/non-compensable if the net number of lost weather days in any month exceeds the number of Reasonably Predictable Weather Days for that month shown on the approved Construction Schedule. The Contractor must submit a weather time impact analysis supporting any request for time extensions due to unusually severe weather. If Contractor is delayed in the performance or progress of the Work by fire, flood, epidemic, abnormal weather conditions, acts of God, acts or failures to act of utility owners not under the control of Owner, or other causes not the fault of and beyond the control of Owner and Contractor, then Contractor shall be entitled to an equitable adjustment in Contract Times, if such adjustment is essential to Contractor’s ability to complete the Work within the Contract Time. Such an adjustment shall be Contractor’s sole and exclusive remedy for the delays described in this Paragraph. 4.13 LIQUIDATED DAMAGES: The Owner may permit the Contractor to proceed if the Contractor fails to advance the Work sufficiently to obtain a Notice of Substantial Completion on or before the Completion Date, as modified by Change Orders providing for additional time due to excusable delays. In such case, the Contractor will pay the sum of liquidated damages stipulated in the Special Conditions for each day that the Work remains uncompleted. This sum shall not be a penalty but is liquidated damages. The Parties agree that time is of the essence in the performance of this Contract and that actual damages for delay are incapable of calculation. The Parties agree that, under all of the circumstances, the daily basis and the amount set forth as liquidated damages is reasonable and equitable. The Owner expends additional personnel effort in administrating the Contract or portions of it that are not completed on time, and such efforts and the costs thereof are impossible to accurately compute. In addition, some, if not all, citizens of the City of Englewood incur personal inconvenience and lose confidence in their government as a result of public projects or parts of them not being completed on time, and the impact and damages, certainly serious in monetary as well as other terms, are impossible to measure. Permitting the Contractor to continue and finish the Work, or any part of it, after the Completion Date shall not operate as a waiver on the part of the Owner of liquidated damages or any of its rights under the Contract. Page 350 of 553 20 The Owner may deduct liquidated damages or any portion thereof due under this article from Final Payment and may sue for and recover such damages from the Contractor and the Surety. The Owner and Contractor agree that as liquidated damages for delay, but not as a penalty, Contractor shall pay the Owner the amount specified in the table below for each day that expires after the time specified for substantial completion until the Work is complete, and for each day that expires after the time specified for final completion until the Work is finally complete. Original Contract Amount Amount of Liquidated Damages Per Day Less than $150,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $500.00 $150,000 and less than $500,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,000.00 $500,000 and less than $1,000,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,600.00 $1,000,000 and less than $2,000,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,300.00 $2,000,000 and less than $4,000,000 .............................................................................................................. $4,100.00 $4,000,000 and over. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $5,800.00 In addition to liquidated damages, inspections required after the Contractual "Time of Completion" shall be charged to the Contractor at the rate of $50.00 per hour. The Owner shall recover said inspection charges and liquidated damages by deducting the amount thereof out of any moneys which may be due or may become due to the Contractor, and/or by an action at law against the Contractor or his Surety. It is understood and agreed that aside from any other penalty or damage, all costs of the Project Engineer, or Project Manager, and inspection on behalf of the Owner may be charged to the Contractor and be deducted from any estimate or payment otherwise due and payable to him 4.14 ADJUSTMENT FOR SUSPENDED WORK: In the event the Contractor is ordered by the Owner, in writing, to suspend Work for some unforeseen cause not provided for in the Contract, and over which the Contractor has no control, the Contractor may be reimbursed for actual money expended on the job during the period of shutdown. No allowance will be made for lost profits. The period of shutdown shall be computed from the date set out in the written order for Work to cease until the date of the order for Work to resume. Claims for such compensation shall be filed with the Owner within 10 days after date of order to resume Work or such claims will not be considered. The Contractor shall submit with his claim, substantiating papers covering the entire amount shown on the claim. The Owner shall take the claim under consideration, and may make such investigations as are deemed necessary, and shall be the sole judge as to the equitability of such claim and such decision shall be final. Notwithstanding any provisions of this Contract to the contrary, no provision of this section shall be construed as entitling the Contractor to compensation for delays due to inclement weather, delays due to failure of Surety, for suspensions made at the request of the Contractor, or for any other delay provided for in the Contract Documents, Specifications, Special Provisions, Proposal, Contract, Change Order, Field Order or Supplemental Agreement. 4.15 TERMINATION OF CONTRACT: The Contract may be terminated by theOwner 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 theOwner to the Contractor or his Surety. In case of termination all expenses incident to ascertaining and collecting losses under the bond, including Project Engineer, or Project Manager, and legal services, shall be assessed against the bond. 4.16 TERMINATION FOR CAUSE: The Owner may terminate the Contract for cause due to the actions or inactions of the Contractor. Cause includes, without limitation: a) If the Work to be performed under the Contract is assigned by the Contractor without written permission of the Owner; b) Contractor's disregard of Laws or Regulations of any public body having jurisdiction; c) Contractor's repeated disregard of the authority of the Project Engineer; ; d) If a general assignment of the Contractor’s assets is to be made for the benefit of its creditors; e) If a receiver is appointed for the Contractor or any of its property; Page 351 of 553 21 f) Substantial evidence of collusion for the purpose of illegally procuring a Contract or perpetrating fraud on the Owner in the construction of the Work under the Contract; g) If the Contractor has materially breached any of the conditions, provisions or covenants of the Contract; h) Failure of the Contractor to promptly repair, replace or remove any defects in materials or Work or any defects in materials or Work of any other nature, the correction of which has been directed in writing by the Project Engineer, or Project Manager; i) If, at any time, the performance of the Work under the Contract is being unnecessarily delayed or if the Contractor is willfully or deliberately violating any of the conditions, provisions, or covenants of the Contract Documents, or if the Contractor is executing the same in bad faith or otherwise not in accordance with terms of the Contract; j) Evidence that the progress being made by the Contractor is insufficient to complete the Work within the specified time; k) Failure of the Contractor to start the Work on the date given in the Notice to Proceed; l) If the Work or any part of the Work is not fully completed within the time or times named for its completion or within the time to which such completion date or dates have been extended; m) If the Contractor abandons the Work by failing to be at work site for two consecutive days, and performing work, on days upon which the schedule anticipates work to be performed; n) If the Contractor fails to maintain the required Bonds, licenses, permits, or insurance; o) Bankruptcy or insolvency of the Contractor, or if the Contractor shall allow any final judgment to stand against him unsatisfied for a period of ten (10) days or shall make an assignment for the benefit of creditors. p) If the Contractor or any of its officers or employees are convicted, plead nolo contendere, enter into a formal agreement in which they admit guilt, enter a plea of guilty, or otherwise admit culpability to criminal offenses of bribery, kickbacks, collusive proposing, bid-rigging, antitrust, fraud, undue influence, theft, racketeering, extortion or any offense of a similar nature, in connection with Contractor’s business; or q) If other just cause exists. 4.16.1 Written Notice - The Owner will send written notice to the Contractor and the Surety of the Owner’s intent to terminate for cause and will give the Contractor and Surety ten (10) days from the date the notice was sent to cure the default, if such default is subject to cure, or provide to the Owner in writing, a detailed plan of how it will remove the causes for termination, except that, if the Completion Date is less than ten (10) days away, the notice may specify less than ten (10) days. If the Contractor or Surety does not submit such plan within the time established, or if, in the judgment of the Owner, such plan will not ensure the satisfactory performance of the Work, the Owner may declare the Contract terminated on the effective date specified in the notice or any other date thereafter. 4.16.2 Discontinue Work - In the event of termination for cause, the Owner shall notify the Contractor to discontinue all Work under the Contract and the Contractor shall immediately respect such notice, stop all Work and cease to have any right to possession of the Work site. 4.16.3 Contract Forfeiture - In addition, the Contractor shall forfeit its Contract as of the specified effective date of termination. 4.16.4 Possession of Materials and Equipment - Upon such termination for cause, the Owner may take possession of all materials, equipment, tools, and temporary material manufacturing plants as may be on the site of the Work or necessary for completion of the Work and take over the Work and prosecute the same to completion, by Contract or otherwise, for the account and at the expense of the Contractor. 4.16.5 Cost Liability - If Owner proceeds as provided in Paragraph 4.16, Contractor shall not be entitled to receive any further payment until the Work is completed. If the unpaid balance of the Contract Price exceeds all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) sustained by Owner arising out of or relating to completing the Work, such excess will be paid to Contractor. If such claims, costs, losses, and damages exceed such unpaid balance, Contractor (and/or its surety) shall pay the difference to Owner. Such claims, costs, losses, and damages incurred by Owner will be reviewed by the Project Engineer as to their reasonableness and, when so approved by the Project Engineer, incorporated in a Change Order. When exercising any rights or remedies under this Paragraph, Owner shall not be required to obtain the lowest price for the Work performed. 4.17 TERMINATION FOR CONVENIENCE OF THE OWNER: The performance of Work under the Contract in whole or in part may be terminated without cause by the Owner whenever the Owner, in its sole discretion, shall determine Page 352 of 553 22 that such termination is in the best interest and convenience of the Owner or whenever the Owner is prohibited from completing the Work for any reason. Such termination shall be effected by giving not less than three (3) days’ written notice to the Contractor specifying the extent to which performance of the Work is terminated and the date upon which such termination becomes effective. 4.17.1 Contractor Responsibilities - Upon receipt of such notice of termination, the Contractor shall: a) Stop work under the Contract on the date and to the extent specified in the Notice of Termination; b) Place no further orders or subcontracts for materials, services or facilities, except as may be necessary for completion of such portion of the Workunder the Contract as isnotterminated; c) Terminate all orders and subcontracts except as necessary to complete Work which is not terminated; d) If directed in writing by the Owner to do so, assign all right, title, and interest in subcontracts and materials in progress, in which case the Owner will have the right, in its discretion, to settle or pay any or all Claims arising out of the termination of such subcontracts; e) Transfer title and deliver to the Owner in the manner, at the times, and to the extent, if any directed by it, (a) the fabricated or un-fabricated parts, Work in process, completed Work, supplies and other material procured as a part of, or acquired in connection with the performance of, the Work terminated by the Notice of Termination, and (b) the completed or partially completed Plans, drawings, information, and other property, which, if the Contract had been completed, would have been required to be furnished to the Owner; f) Settle outstanding liabilities and claims with the approval of the Owner; g) Complete performance of such part of the Work not terminated; and h) Take such other actions as may be necessary, or as may be directed by the Owner, for the protection and preservation of the property related to the Contract. 4.17.2 Payment for Work Performed - With respect to Contract Work performed prior to the effective date of the Notice of Termination, the total (without duplication of any items) of: a) The cost of such Work; b) The cost of settling and paying claims arising out of the termination of Work under subcontracts or orders as provided in subparagraph (d) above, exclusive of the amounts paid or payable on account of supplies or materials delivered or services furnished by the Subcontractor prior to the effective date of the Notice of Termination of Work under the Contract, which amounts shall be included in the cost on account of which payment is made under (a) above; c) A sum, as profit on the cost of such Work, determined by the Owner to be fair and reasonable; provided, however, that if it appears that the Contractor would have sustained a loss on the entire Contract had it been completed, no profit shall be included or allowed under this subparagraph and an appropriate adjustment shall be made by reducing the amount of the settlement to reflect the indicated rate of loss; d) The reasonable cost of the preservation and protection of property incurred pursuant to subparagraph (h) and any other reasonable cost incidental to termination of Work under this Contract, including expense incidental to the determination of the amount due to the Contractor as the result of the termination of Work under this Contract. 4.17.3 Remaining Inventory - Except as provided herein, any inventory paid for by the Owner but remaining upon the termination of the Contract may, with written approval of the Owner, be sold or acquired by the Contractor under the conditions prescribed by and at prices approved by the Owner. 4.17.4 Request for Final Payment - Upon receipt of notice of such termination, the Contractor shall submit to the Project Engineer, or Project Manager, a request for final payment, in a form and with certification prescribed by the Owner. Such request shall be submitted promptly but in no event later than sixty (60) days from the effective date of termination, unless extended in writing by the Project Engineer, or Project Manager, upon the written request of the Contractor within such sixty (60) day period, or such earlier date as is provided by law. 4.17.5 Profit - Subject to the provisions contained herein, the Contractor and the Owner may agree upon the whole or any part of the amount or amounts to be paid to the Contractor by reason of the total or partial termination of Work pursuant to this Section, which amount or amounts may include an allowance for profit on Work done; provided that such agreed amount or amounts, exclusive of settlement costs, shall not exceed the total Contract price as reduced by the amount of payments otherwise made and as further reduced by the Contract price of Work terminated. The Contract will be amended accordingly, and the Contractor will be paid the agreed amount. Page 353 of 553 23 4.17.6 Calculation of Final Payment - The final payment to the Contractor after a termination for convenience shall be calculated as follows: a) From the Contract Price, subtract the following: 1) The total amount paid to the Contractor to date; 2) The value of the Work completed since the last approved pay application; 3) The total amount of retainage withheld by the Owner to date; 4) The agreed price for, or the proceeds of sale of, any materials, supplies, or other things acquired or sold by the Contractor or sold pursuant to these General Conditions and not otherwise recovered by or credited to the Owner; 5) The total of all claims the Owner may have against the Contractor; and 6) Any outstanding claims pursuant to C.R.S. § 38-26-107, as amended or superseded. b) Multiply the number resulting by 0.05. The number resulting is the full and complete compensation for anticipated profits c) Add the following to the total resulting from the prior step: 1) Any actual costs incurred by the Contractor for restocking charges; 2) The agreed upon price of protecting the Work in the manner, if any, directed by the Owner; 3) The amount of retainage withheld by the Owner to date; and 4) The value of the Work completed since the last approved pay application. The sum calculated under this article, when paid to the Contractor, shall constitute full and final settlement of the Contract Price. 4.17.7 Defective Work - The settlement for the Work performed shall not relieve the Contractor, or its surety, from responsibility for defective Work and/or materials on the completed portion of the Work nor for labor and materials or any other items as guaranteed by the Bonds. 4.17.8 Owner Access - Unless otherwise provided for in this Contract, or by applicable statute, the Contractor, from the effective date of termination and for a period of three years after final settlement under this Contract, shall preserve and make available to the Owner at all reasonable times at the office of the Contractor, but without direct charge to the Owner, all books, records, documents and other evidence bearing on the costs and expenses of the Contractor under this Contract and related to the expenses of the Contractor under this Contract and related to the Work terminated hereunder, or to the extent approved by the Owner, photographs, micro-photographs, or other authentic reproductions thereof. 4.17.9 Right to File Claim - If the Parties fail to agree in whole or in part on the amount or amounts to be paid to the Contractor in connection with the termination of work pursuant to this article, the Contractor may submit a claim as provided in these General Conditions, except that, if the Contractor has failed to submit its request for payment within the time provided above and has failed to request an extension of such time, it shall have no such right. 4.17.10 Total Sum to be Paid - The total sum to be paid to the Contractor under subparagraph (a) above will not exceed the total Contract price as reduced by the amount of payments otherwise made and as further reduced by the Contract price of Work terminated. 4.17.11 Deduction for Claims - In arriving at the amount due the Contractor under this Section, there will be deducted (i) any claim which the Owner may have against the Contractor in connection with this Contract, (ii) the agreed price for, or the proceeds of sale, of materials, supplies or other things acquired by the Contractor or sold, pursuant to the provisions of this Section and not otherwise recovered by or credited to the Owner and (iii) the full amount of any statutory or other claim against the Contractor filed with the Owner. 4.17.12 Subcontractors - The Contractor shall insert in all subcontracts that the Subcontractor shall stop Work on the date of and to the extent specified in a Notice of Termination from the Owner and shall require that any tier subcontractors insert the same provision in any tier subcontracts. 4.18 COOPERATION WITH OTHER CONTRACTORS: In connection with the improvements under this Contract, the right is reserved by the Owner to award any Work not included in the Contract to another Contractor for performance during the progress of the Work, or to perform such Work with the Owner's forces, and the Contractor under this Contract shall cooperate and so conduct his operation as to minimize the interference therewith, as directed by the Project Engineer, or Project Manager. Page 354 of 553 24 4.19 TERMINATING OF CONTRACTOR'S RESPONSIBILITY: This Contract will be considered complete when all Work and final cleanup has been finished, the Work accepted by the Owner, and all claims for payment of labor, materials, or services of any kind used in connection with the Work have been settled for by the Contractor or his Surety. The Contractor will then be released from further obligation except as set forth in the Surety Bond and for his responsibility for injury to persons or property arising from his duties and obligations under Section 7. The Surety Bond executed for performance of this Contract shall be in full effect for a period of one year following acceptance of the Work, except that with regard to the representation regarding copyright infringement found in Article 18, the Surety shall remain in effect for three years and with regard to the representation regarding patent infringement found in Article 18, the Surety shall remain in effect for six years. Neither the final payment nor any provision in the Contract documents shall relieve the Contractor of the responsibility for negligence or faulty materials or workmanship. The Contractor shall warrant his work to be free from faulty materials or workmanship for the period of one year after final payment and upon written notice he shall remove any defect due thereto and pay for any damage due to other Work resulting there from which shall appear within the one-year period. Remedied Work shall carry the same warranty as the original Work starting with the date of acceptance of the replacement or repair. Payment to the Contractor will not relieve him of any obligation under this Contract. Article 5. PROJECT AND CONSTRUCTION MANAGEMENT 5.1 AUTHORITY OF PROJECT ENGINEER, OR PROJECT MANAGER: The Project Engineer, or Project Manager, shall decide any and all questions which may arise as to the quality and acceptability of the materials furnished, the Work performed, the manner of performance and the rate of progress of the Work. He/She shall decide all questions which may arise as to the interpretation of the Plans and Specifications, all questions as to acceptable fulfillment of the Contract, all disputes and mutual rights by the Contractors if there is more than one Contractor on the Work, and all questions as to compensation. The decision of the Project Engineer, or Project Manager, shall be final. He/She shall have executive authority to make effective such decisions and to enforce the Contractor to carry out all orders promptly. The Project Engineer, or Project Manager, shall be the primary interpreter of the meaning and intent of the Construction Documents and shall be, in the first instance, the judge of the performance of the Contract. The Project Engineer, or Project Manager, will visit the site at appropriate intervals to become familiar with its progress and quality and to determine in general if the Work is being performed in such a manner that it will, when fully completed, be in accordance with the Contract Documents. The Project Engineer, or Project Manager, shall, in a timely manner, evaluate and issue written determinations resolving any claims or disputes submitted to the Project Engineer, or Project Manager, for review under the Contract. Interpretations and decisions of the Project Engineer, or Project Manager, will be consistent with the intent of, and reasonably inferable from, the Contract Documents. The Project Engineer, or Project Manager’s decisions on matters relating to aesthetic effect shall be final if consistent with the intent expressed in the Contract Documents. In exercising its authority to make such determinations, the Project Engineer, or Project Manager, shall exercise independent professional judgment based on the Contract Documents and shall not favor Contractor or Owner. All such determinations shall be subject to judicial review, provided, however, that any matters designated as Disputes under the Contract shall be submitted to Dispute Resolution in accordance with the Contract before being made the subject of litigation unless the Contract specifically provides otherwise. 5.2 COMMUNICATIONS: Contractor shall furnish both Owner and Project Engineer copies of all notices Contractor gives to either the Project Engineer, Project Manager, or Owner under the Contract relating to Applications for Payment, Change Directives, Proposed Changes, Change Orders, Progress Payments, or claims for adjustment in the Contract Sum, Required Substantial Completion Date or Required Final Completion Date. Such duplicate notice shall also be given as to other matters requested in writing by Owner or Project Engineer, or Project Manager. 5.3 SUPERVISION: The Contractor shall supervise and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. The Contractor shall be solely responsible for the means, methods, techniques, sequences, and procedures of construction. The Contractor shall be responsible to see that the completed work complies with the Contract Documents. The Contractor shall designate and keep on the Work at all times during its progress a competent Superintendent who shall not be replaced without prior written notice to the Owner and Project Engineer. The Superintendent will be the Contractor's representative at the site and shall have authority to act on behalf of the Contractor. All communications given to the Superintendent shall be as binding as if given to the Contractor. During periods when the Work is suspended, the Contractor shall make appropriate arrangements for any emergency work which may be required. Page 355 of 553 25 Whenever the Superintendent is not present on any particular part of the Work where the Project Engineer, or Project Manager, may desire to inform the Contractor relative to interpretation of the Plans and Specifications or to disapproval or rejection of materials or Work performed, the Project Engineer, or Project Manager, may so inform the foreman or other worker in charge of the particular part of the Work in reference to which the information is given. Information so given shall be as binding as if given to the Superintendent. The Contractor will be supplied with four (4) copies of the Plans, and three (3) copies of the Specifications and Special Provisions. He shall have available at the job site, at all times, one copy each of said Plans, Specifications and Special Provisions, exclusive of the set designated for As-Built Drawings. Additional copies of Plans, Specifications and Special Provisions can be obtained by the Contractor for the cost of reproduction. 5.4 CONTRACTOR PERFORMANCE: The Contractor will perform the Work or cause the Work to be performed in a manner that is in compliance with the requirements of the Contract Documents. The Contractor shall perform the Work exactly as specified by the Contract Documents. Unless otherwise provided in the Contract Documents, for the Unit Prices, the Contractor shall provide and pay for all labor, materials, equipment, tools, supplies, construction equipment and machinery, water, heat, electricity, energy, utilities, transportation, any temporary construction easements not provided by the Owner, apparatus, permits, superintendence, maintenance, dismantling, removal, and other facilities and services, necessary for the proper execution and completion of the Work, whether temporary or permanent, and whether or not incorporated or to be incorporated into the Work. The Contractor shall be solely responsible for all construction means, methods, safety, techniques, sequences and procedures unless otherwise specified in the Contract Documents. There is a need for 24-hour access to the Contractor’s Superintendent in case of emergency. The contractor shall supply the Project Engineer, or Project Manager, with a contact telephone number through which the Superintendent may be reached at any time. When the work includes adjusting valve boxes, meter pits, manholes, pavement markings and/or striping, etc., the Contractor shall complete this work within ten (10) days of placing the final lift of asphalt. 5.5 WORK PERFORMED UNDER ADVERSE WEATHER CONDITIONS: Adverse weather conditions are those that can, depending on the Work to be performed, cause defective Work. Examples include: high or low temperatures, excessive moisture, unusual drying conditions, or high winds. Construction methods and practices that have been or may be developed for Work performed under such circumstances may only be used after the Project Engineer, or Project Manager, has approved the concept of such method or practice. If the Contractor does attempt Work during periods of adverse weather conditions without the Project Engineer’s, or Project Manager’s, approval, that Work shall be at the Contractor’s sole risk. 5.6 USE OF MATERIALS FOUND ON THE WORK SITE: The Contractor, with the approval of the Project Engineer, or Project Manager, may use in the proposed construction, any stone, sand, or gravel found on the site. The Contractor will not be paid for such excavation unless specifically stated in the Proposal, and he shall replace with other suitable material, without compensation, all of that portion of the material so removed. If it was intended that any or all of the material so excavated and used was to have been wasted, then the Contractor will not be required to replace it. The Contractor shall not excavate any material from the site which is not within the excavation as indicated by the slope and grade lines, without being authorized in writing by the Project Engineer, or Project Manager. 5.7 FINAL CLEANING UP: During the Project's final cleanup, the Contractor shall remove from the site all machinery, equipment, surplus and discarded materials, rubbish, temporary structures, and stumps or portions of trees. The streets and adjacent properties in the Project shall be repaired to as good or better condition than existed prior to construction. This shall include removal of all dirt or mud from streets and lawns. No extra payment shall be made for these items. The Contractor shall leave the Project in a neat and presentable condition. (See Article 17, below). 5.8 SURVEYS: The Contractor shall develop and arrange for all engineering surveys necessary, in the Owner’s judgment, to establish reference points for the construction of the Work. The Contractor assumes full responsibility for construction according to the established lines and grades. If the Contractor proceeds with the Work without having lines and grades set, the Contractor will not be relieved of strict compliance with the Contract Documents. Page 356 of 553 26 The Contractor shall carefully protect all monuments and property markers from disturbance or damage. The Contractor, at its expense, will replace any monuments or benchmarks destroyed by the Contractor using a professional land surveyor licensed in the State of Colorado. Unless otherwise stated in the Specifications or the Special Conditions, the Owner will provide all reference points shown on the Contract Drawings by coordinates and/or elevation. The Contractor must accurately transfer the survey control information to the points of application to ensure that all elements of the Work are correctly located. Requests by the Contractor to relocate survey reference points must be made ninety-six (96) hours prior to the time when the point will be disturbed in order to permit the Owner to accomplish such surveys on normal working days. Any Work that the Contractor begins before confirming the reference points provided may be rejected. Should the original reference points that the Owner provided be obliterated or dislodged by operations that the Contractor controls, the Owner will replace them and charge the Contractor for the resurvey. 5.9 LINES AND GRADES: Contractor shall survey and stake and shall be responsible for laying out the work. The Contractor shall preserve all stakes, bench marks, and any other survey points and shall pay for the replacement, in accordance with state law, of any stakes, benchmarks, or other survey points destroyed by the Contractor or any Subcontractor. 5.10 VALUE ENGINEERING: Value engineering is the independent review of a project during the planning and design phases to reduce costs, save time, improve operations, reduce environmental and other impacts, improve safety, and improve value and quality. Proposed changes in materials or methods used must be approved by the Project Engineer, or Project Manager, and any agency having jurisdiction over the affected work before such work is attempted. The Contractor shall be paid fifty percent (50%) of all identifiable cost savings resulting from said value engineering approved and accepted. A Change Order must be issued to effect such a value engineering task. 5.11 SANITARY REGULATIONS: The Contractor is responsible for providing proper health and sanitation facilities for its employees, in compliance with any rules and regulations of the Colorado Department of Public Health and Environment or any other agencies having jurisdiction. The Contractor shall provide and maintain in a neat, sanitary condition, such accommodations for the use of employees as may be necessary to comply with the requirements and regulations of the State Department of Health and the Occupational Safety and Health Administration (OSHA). As stated in OSHA Construction Standard 1926.51 C, the Contractor shall supply temporary sanitary facilities as per the following table: Number of Employees Minimum Toilet Facilities 20 or less 1 Toilet 21 to 50 1 Toilet and 1 Urinal 51 or more 1 Toilet and 1 Urinal for each 50 Employees This requirement to provide sanitary facilities will not be measured and paid for separately but shall be considered incidental to and included in the cost of the Work. At convenient places, the Contractor shall provide fly-proof outside toilets which are to be maintained in a sanitary condition. Toilets shall not be permitted in any reservoir area and shall not be permitted where they may pollute a water supply. The Contractor shall always provide an abundant supply of safe drinking water for Contractor’s employees and shall give orders against the drinking of any water known to be unsafe in the vicinity of the Project. The Contractor shall provide and empty daily a thirty (30) gallon or larger trash can near each toilet. 5.12 STAGING AND STORAGE: With the approval of the Project Engineer, or Project Manager, the Contractor may obtain sites of his/her choosing for equipment storage and/or materials stockpiling. The Contractor shall not occupy storage sites without prior written approval by the Project Engineer, or Project Manager. A list of such sites showing the proposed truck route for ingress and egress for each site shall be submitted to the Project Engineer, or Project Manager, for approval at least five (5) days prior to intended use. For all sites approved and used, Contractor shall be responsible for the following: a) Obtaining prior written permission of the owner. A copy of this permission shall be provided to the Owner; b) Keeping stockpiles and equipment confined within the approved area and in accordance with applicable erosion control requirements; c) Providing security for materials and equipment at the site; d) Providing for public safety at the site; Page 357 of 553 27 e) Keeping access roads clean and in good condition and in accordance to the Owner’s Erosion Control requirements; and f) At Contractor’s sole cost expense, restoring the site to its original or better condition at the completion of the Work. 5.13 SALVAGE: Items removed by Contractor shall become the property of Contractor unless other disposition or repositioning is required by the Contract Documents or needed for the Work. The Contractor may reuse such items elsewhere, sell such items with proceeds of said sale becoming the property of Contractor or otherwise dispose of such items from the site. Items removed by the Contractor that do not have any salvage value are to be disposed of by Contractor at an approved waste disposal site at the Contractor’s expense, except for any items that the Owner will take for recycling. 5.14 MATERIALS AND EQUIPMENT FURNISHED BY THE CONTRACTOR: Unless otherwise provided for in the Specifications, all workmanship, equipment, materials, and articles incorporated in the Project are to be new, suitable for the purpose used, of good quality, free from faults and defects and in conformance with the Contract Documents. The Contractor further warrants that it has full title to all parts, materials, components, equipment, and other items conveyed to the Owner under the terms of the Contract, that its transfer of such title to the Owner is rightful and that all such parts, materials, components, equipment, and other items shall be transferred free and clear from all security interests, liens, claims, or encumbrances whatsoever. Materials, supplies, and equipment to be incorporated into the Project shall not be purchased by the Contractor or any Subcontractor subject to chattel mortgage or under a conditional sales contract or other agreement by which an interest is retained by the seller. The Contractor agrees to warrant and defend such title against all persons claiming the whole or any part thereof, at no cost to the Owner. The Contractor shall furnish the Owner, for the Project Engineer, or Project Manager’s approval, the name of the manufacturer of machinery and other equipment for materials the Contractor contemplates incorporating in the Project. The Contractor shall also furnish information on capacities, efficiencies, sizes, etc., and other information as may be required by the Project Engineer, or Project Manager. All items shall be labeled to indicate the Contract and Project name, Contractor, source of supply, and manufacturer and shall be submitted in sufficient time to permit proper consideration by the Project Engineer, or Project Manager, without impacting the Construction Schedule. The Contractor shall have available for use when needed all necessary construction machinery and equipment. Such machinery and equipment shall comply with all applicable federal, state and local safety requirements and be in good working condition, adequate for the task, and in the numbers needed to maintain a rate of progress sufficient to complete the Work within the Contract Time and milestones. Whenever an operation is undertaken which must be accomplished without any slowdown or stoppage, or to avoid an inferior product, the Contractor shall provide standby equipment capability so that an equipment breakdown does not disrupt that activity. The Contractor shall give the Project Engineer, or Project Manager, three (3) copies of all shop manuals, operating manuals, parts lists, classifications, catalog cuts, specifications, warranties and guarantees for all equipment and machinery installed. Consideration of a product as an “equal” or “superior” by the Project Engineer, or Project Manager, may require that the manufacturer of such product furnish guarantees that extend beyond the usual product warranty time. The refusal of a manufacturer to provide such guarantees is sufficient reason for rejecting the product. The Contractor shall not incorporate any materials into the Project or cover any part of the Work until it has been inspected and approved according to the Contract Documents. Machinery, equipment, materials, and articles installed or used without the Project Engineer, or Project Manager’s approval are at the risk of subsequent rejection. The Contractor shall be responsible for materials delivered and Work performed until completion and final acceptance of the entire construction thereof. The Contractor shall bear the risk of injury, loss or damage to any and all parts of the Work for whatever cause, whether arising from the execution or from the non-execution of Work. The Contractor shall rebuild, repair or restore Work and materials which have been damaged or destroyed from any causes before completion and acceptance of the Work and shall bear the expense thereof. The Contractor shall provide security and drainage and erect temporary structures as necessary to protect the Work and materials from damage. The Contractor shall be responsible for materials not delivered to the site for which any progress payment has been made to the same extent as if the materials were so delivered. 5.15 SUBSTITUTION OF MATERIALS AND EQUIPMENT: After the award of the Contract, the Contractor may ask for substitution of specified material or equipment with equal or equivalent, or superior items only under the Page 358 of 553 28 following circumstances: (i) The Contractor provides evidence to the Project Engineer, or Project Manager, that, in the Project Engineer, or Project Manager’s sole opinion, establishes that an item of specified material is not available; (ii) the Contractor provides evidence to the Project Engineer, or Project Manager, that, in the Project Engineer, or Project Manager’s sole opinion, establishes that the specified item will have an unreasonable delivery time due to no fault of the Contractor; or (iii) acceptance of such substitution would result in a significant saving to the Owner without materially impairing the quality or performance of the Work. If any of these circumstances exist, the Contractor shall request approval for a substitution at least thirty (30) days before the material or equipment must be ordered. All requests for substitutions shall be made in writing as part of a submittal. The request shall describe all features of the requested substitution including any tie-in with other elements of the Work, including utilities and controls along with the size and capacity of substitute materials or equipment. The request must be submitted on a form provided by or otherwise acceptable to the Project Engineer, or Project Manager, and shall list all differences from the product described in the Specifications, include the price of the specified item and the requested substitution, and describe any advantages or disadvantages of the proposed substitution. The Contractor shall be responsible for any effect upon related Work in the Project of any substitution and shall pay any additional cost resulting from or relating to any substitution. If the “equal or equivalent” material or equipment costs less than that specified, the Contractor shall so state in its request for substitution and, if the Owner accepts the proposed substitution, it may issue a Change Order to reduce the Contract Price by the amount of the direct cost savings without markup to the Contractor. If the equal or equivalent material or equipment is accepted for unavailability or unreasonable delivery time due to no fault of the Contractor, the Owner may, if appropriate, issue a Change Order to increase the Contract Price by the resulting actual, direct cost increase, if any, to the Contractor, without markup. 5.16 CUTTING AND PATCHING: The Contractor shall be responsible for all cutting, fitting, or patching that may be required to complete the Work, to make its several parts fit together properly or to tie the Work into other work that is shown in the Contract Documents. The Contractor shall organize and plan the Work to reduce to a minimum the need for cutting or otherwise modifying or removing load-bearing structural elements to accommodate the installation of other elements of the Work. If two or more contractors are doing work in the same place, the Contractor shall be responsible for the coordination effort needed to avoid or to reduce the amount of cutting, modifying or removing of structural elements to accomplish such work. However, if modification or removal of structural elements is required because the Work could not be organized and planned to avoid that need, the Contractor shall inform the Project Engineer, or Project Manager, of the need so that the consequences of such modification or removal of structural elements can be assessed. No structural element shall be cut, drilled, bored or otherwise modified unless cutting, drilling, boring or other modification is indicated in the Contract Documents. If the Contractor needs to modify a structural element from its original design, the Contractor must submit to the Project Engineer, or Project Manager, a request to make the modification. The request must provide complete details including all necessary calculations performed by a professional engineer licensed in the State of Colorado to show that the structural elements can still function as originally designed. The request must be accepted by the Project Engineer, or Project Manager, before any modification is made. The Contractor shall be responsible for all repair, replacement, and patching that is necessary to restore the Work, other property, or work of others damaged by the Contractor or Subcontractor. 5.17 SAMPLES AND TESTING: All materials and equipment used in the Project will be subject to sampling and testing by an independent testing company acceptable to the Owner according to generally accepted standards and as required in the Contract Documents. In the absence of direct references, the sampling and testing of materials will be done according to current specifications of the ASTM or the AWWA. The Contractor shall furnish all samples without charge. The Contractor will cooperate with the Project Engineer, or Project Manager, in collecting, handling, storing, and forwarding required samples including the furnishing of manpower and equipment when necessary. The Contractor will pay the cost of the initial test except when the Contract states otherwise. The Contractor will pay the costs for repeated tests due to failure of the initial test. The costs of any testing and retesting may be deducted from any payment due to the Contractor under the Contract. The Contractor will provide the Project Engineer, or Project Manager, at least twenty-four (24) hours prior notice for any inspection involving testing or sampling. The Contractor shall be responsible for testing of concrete and soils and, unless otherwise specified, the Contractor shall perform testing of all other materials and equipment. The Contractor shall provide the Project Engineer, or Page 359 of 553 29 Project Manager, with satisfactory proof of compliance with the requirements of the Contract Documents of any materials or equipment tested. Satisfactory proof of compliance shall be submitted in one or more of the following ways: a) Manufacturer’s Certificate of Compliance. For standard labeled stock products of standard manufacture that have a record of satisfactory performance in similar work over a period of not less than two (2) years, the Project Engineer, or Project Manager, may accept a notarized statement from the manufacturer certifying that the product conforms to the applicable specifications. b) Mill Certificates. For materials where such practice is the usual standard, the Project Engineer, or Project Manager, may accept the manufacturer’s certified mill and laboratory certificate. c) Testing Laboratory Certificates. The Project Engineer, or Project Manager, may accept a certificate from an independent commercial testing laboratory satisfactory certifying that the product has been tested within a period acceptable to the Project Engineer, or Project Manager, and that it conforms to the requirements of the Plans and Specifications. d) Report of Actual Laboratory Test. The Project Engineer, or Project Manager, may require that Contractor make actual tests of any product and submit a report of the specified test. Such test shall be made by a commercial testing laboratory satisfactory to the Project Engineer, or Project Manager, at the Contractor’s sole expense. 5.18 PROPERTY RIGHTS IN MATERIALS: The Contractor shall have no property right in materials after they have been attached, affixed or incorporated in the Work or the soil, or after payment has been made by the Owner to the Contractor for materials delivered to the site of the Work or stored subject to or under the control of Owner. Article 6. CHANGES IN THE WORK 6.1 CHANGES AND INCREASED OR DECREASED QUANTITIES OFWORK 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 fullyand 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 theoriginal 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 Page 360 of 553 30 under a remedy-granting provision ofthiscontract.Forpurposesof thisparagraph,"remedy-granting provision" shall be defined as set forth in 24-91-103.6(4), C.R.S. The Contractor shall not start Work on any alteration requiring a Supplemental Agreement until the Agreement setting forth the adjusted prices has been executed by the Owner and the Contractor. All changes or approvals for increasing the Work as required and authorized herein, shall be in written form and approved and signed by the Project Engineer, or Project Manager, prior to the Work being done. All such writings and approvals shall be specific as to the nature of the Work and the quantities involved. Any Work performed without prior written approval of the Project Engineer, or Project Manager, shall not be binding on the Owner. The Contractor may not treat any order, statement or conduct of the Project Engineer, or Project Manager, as a change under this article nor become entitled to an equitable adjustment in the Contract Price or Contract Time except as provided in this article. Claims for changes in the Contract Price or Contract Time of Performance will not be considered after the Final Payment has been made. Change Orders involving an increase in the Contract Price must be authorized in accordance with the City’s adopted purchasing policy, a copy of which is available upon request. Such purchasing policy provides that the total of all such Change Orders associated with a project that increases the total cost of the Contract by more than 10% must be approved by a supplemental agreement. 6.1.2 Owner Change Request - The Owner may, without notification to any Surety, require the Contractor to perform additive or deductive changes to the Work within the general scope of the Project without invalidating the Contract or any Bond. When the Owner desires to initiate a change, the Project Engineer, or Project Manager, will issue a change request informing the Contractor of the proposed change in the Work, and requesting the Contractor’s detailed price proposal for such change. The Contractor, at no expense to the Owner and within the time period specified in the Change Request, shall provide the Project Engineer, or Project Manager, with a complete and itemized proposal for the change in the Work, which shall include the estimated increase or decrease in the Contract Price or Contract Time. Such increase or decrease shall be based on the criteria and methods described in these General Conditions. The Contractor shall be responsible for any delays in the Work and any additional costs to the Owner caused by the Contractor’s failure to submit a complete price proposal within the time provided. The Contractor shall participate with the Owner in prompt joint analysis and negotiations to finalize a Change Order. The issuance of a Change Request by the Owner is not a prerequisite to the issuance of a Field Order. 6.1.3 Field Orders - The Project Engineer, or Project Manager, may make changes in the details of the Project at any time, by issuing a Field Order. Upon receipt of a Field Order, the Contractor shall promptly sign the Field Order and return it to the Project Engineer, or Project Manager, and shall promptly proceed with performing the change in the Work. The Field Order shall not involve an increase or decrease in the Contract amount and not involve a change inthetime 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 Page 361 of 553 31 fully described under a Unit Price set forth in the Contract Documents or the Field Order, the Contractor shall proceed with such Work on a time and materials basis. b) Whenever Work is performed on a time and materials basis, the Contractor shall fully document all costs associated with such Work. Beginning with the first day such Work is performed and on a daily basis thereafter, the Contractor shall submit to the Project Engineer, or Project Manager, a daily itemization of all such costs in such form as the Project Engineer, or Project Manager, may require. c) The final Contract adjustment for Field Order changes in the Work performed on a time and materials basis shall be calculated in accordance with these General Conditions. When the Owner and the Contractor reach agreement on an adjustment to the Contract Price or Contract Time, or both as appropriate, such agreement shall be promptly executed as a Change Order. If the Owner requires Contractor to perform additional compensable work under a Field Order prior to executing a Change Order, the Contractor shall submit its costs to perform the work as periodically completed in its monthly application for payment, and Owner shall reimburse such costs, subject to retainage and any applicable withholding. In no instance shall the Owner be required to periodically reimburse Contractor for such additional compensable work prior to Contractor submitting to Owner an estimate of the cost of the additional compensable work to be performed. 6.1.4 Contractor Change Requests - If the Contractor: (i) receives any instructions, interpretations or directives which it believes are at variance with the Contract Documents or would require the Contractor to accelerate or decelerate the Work; or (ii) identifies what it believes are errors or omissions of any kind, including design errors or omissions, in the Drawings or Specifications; or (iii) encounters a differing site condition; or (iv) is delayed in performing the Work; or (v) becomes aware of any other matter or circumstance that the Contractor believes might require a change in the Contract Documents, Contract Time, or Contract Price, the Contractor shall give the Project Engineer, or Project Manager, prompt written notice of such matter and request a Change Order in a document identified as a “Contractor Change Request.” Following submission of a Contractor Change Request, the Contractor shall diligently continue performance of the Contract to the maximum extent possible. All Contractor Change Requests shall be dated, numbered sequentially, and shall describe the action or event that the Contractor believes may require the issuance of a Change Order. The Contractor shall also provide a description of possible Contractor actions or solutions to minimize the cost of the Contractor Change Request and, when possible, provide an estimate of the adjustment in the Contract Time and Contract Price which the Contractor believes is appropriate. a) With respect to orders, instructions, directives, interpretations, determinations, or the discovery of any errors or omissions in the Contract Documents, a Contractor Change Request shall be submitted before the Contractor acts on them, but in no event more than five (5) days after they have been, or reasonably should have been, received or discovered. b) With respect to any differing site conditions, a Contractor Change Request shall be submitted before the conditions are disturbed, but in no event more than five (5) days after the conditions are first discovered or reasonably should have first been discovered. c) With respect to delays, as set out in these General Conditions, a Contractor Change Request shall be submitted as soon as the Contractor becomes aware, or reasonably should have become aware, of the delay, but in no event more than five (5) days therefrom. d) With respect to any other matter or circumstance that the Contractor believes would require a change, a Contractor Change Request shall be submitted as soon as the Contractor reasonably has knowledge of the matter or circumstance, but in no event more than five (5) days after the Contractor becomes aware, or reasonably should have become aware, of such circumstance or matter. 6.1.5 Submittal Requirements and Waiver of Claims a) If the Contractor does not submit a Contractor Change Request within the time required by these General Conditions, any action by the Contractor related to such order, direction, instruction, interpretation, determination, design error or omission, or other matter, including delays or differing site conditions, will not be considered by the Owner as a change to the Work and the Contractor waives any claim for an adjustment on the Contract Price or the Contract Time. b) The Contractor shall, within ten (10) days after submitting a Contractor Change Request, provide the Project Engineer, or Project Manager, with a complete and itemized proposal that sets out as specifically as practicable the requested adjustments to Contract Price, Contract Page 362 of 553 32 Time, or other Contract provisions, and contains the other information described in these General Conditions. c) The proposal shall also contain a detailed explanation, citing all applicable provisions in the Contract Documents that support the Contractor Change Request. If the Contractor does not submit its itemized proposal for a Change Order within the time described above or within such extension that the Project Engineer, or Project Manager, in his or her discretion may have granted in writing, the Contractor waives any claim for an adjustment in the Contract Price or Contract Time arising out of the act or event giving rise to or necessitating a Contractor Change Request. d) The Contractor shall furnish, upon request, all additional information and data that the Project Engineer, or Project Manager, determines is needed to assist the Owner in evaluating and resolving the Contractor Change Request through negotiation. The Contractor shall give the Owner access to its books, correspondence, records, electronic data bases and files, and other materials relating to the work described in the Contractor Change Request, shall require its Subcontractors and Suppliers to provide the Owner with such access, and shall make its personnel and that of its Subcontractors and Suppliers available to discuss and answer cost, schedule, and other questions related to such request. Clear and legible copies of all necessary supporting records shall be provided to the Owner at no cost. Failure to submit requested information may be a basis for denial of the request. e) In the event the Contractor is ordered to perform Work under this Section for which payments are not determined hereunder, which in the opinion of the Owner it is impracticable to have performed by the Contractor's own employees, the Contractor will, subject to the approval of the Owner, be paid the actual cost to him of such Work and, in addition thereto, an amount of ten (10) percent of the actual costs to cover the Contractor’s superintendence, administration and other overhead expenses. The terms and conditions of any subcontract which the Contractor may propose to enter into in connection with Work under the provisions of this Section, shall be subject to the written approval of the Owner before such subcontract is made. f) In cases other than those described above, the Owner and the Contractor (on his own behalf and on behalf of their Subcontractors) shall endeavor to negotiate a reasonable Contract price and line adjustment in a Change Order on terms appropriate to the changed Work. The Contractor will be required to submit a sufficiently detailed price proposal supported with sufficient documentation so that the Owner can determine that (1) the proposal reflects all impacts on the Contract from Work additions, deletions and modifications shown in the change order being priced, and (2) the proposed prices are set out in such a way that their reasonableness can be evaluated against prices based on adequate price competition, Proposal unit prices, established catalog or market prices of commercial items sold in substantial quantities to the general public, prices set by law or regulation, recognized published price lists and indices, independently developed cost estimate and other appropriate price comparisons and (3) Contract provisions relating to Contract changes costing over $100,000.00 are complied with. If any prices or other aspects are conditional, such as on firm orders being made by a certain date or the occurrence or non-occurrence of an event, the Contractor shall identify these aspects in his Proposal. A negotiated Change Order shall set out prices, scheduling requirements, time extensions and all costs of any nature arising out of the issuance of a Change Order except for those cost and time aspects explicitly reserved on the face of the Change Order. g) In the event the Contractor and the Owner are unable to agree upon the Contractor's entitlement to an equitable adjustment or upon the amount thereof, or in the event that it is in the best interest of the Owner to have the Work proceed pending negotiation of amount of an equitable adjustment, the Owner may direct the Contractor to perform the Work in accordance with the Change Order, direction, instruction, interpretation, or determination, with any Contract price adjustments and progress payments for the Work to be determined on a Force Account basis in accordance with Section 1.5. The Contractor shall continue diligently to perform the Contract in accordance with the Owner's order, direction, instruction, interpretation, or determination during negotiations with respect to the Contractor's entitlement to an equitable adjustment hereunder or to the amount of any Contract price adjustment hereunder or to the amount or any Contract price adjustment or time extension. The Contractor and the Owner may agree on certain aspects of an equitable adjustment and take those aspects out of operation of Force Account provisions. h) For Change Orders, the Owner, or its representative shall have the audit and inspection rights as described below: • Where the agreed payment method for any Contract changes is to be by cost reimbursement, time and material, labor, hours, or any combination thereof, the Contractor shall maintain and the Owner or its representatives shall have the right to Page 363 of 553 33 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. • 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; Page 364 of 553 34 (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 orpricing 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 thedate of agreement on thenegotiated price of the Contract Change Order. l) In case a satisfactory adjustment in price cannot be reached for any item requiring a Supplemental Agreement, the Owner reserves the right to terminate the Contract as to said item as it applies to the terms in question and make such arrangements as may be deemed necessary to complete the Work. Should any of the changes, not requiring Supplemental Agreements, be made as provided herein, the Contractor shall perform the Work as altered, increased or decreased at the Contract unit price or prices. 6.1.6 Claims for Concealed or Unknown Conditions - If conditions are encountered at the site which are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or (2) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then notice by the observing party shall be given to the other party promptly before conditions are disturbed and in no event later than seven (7) days after first observance of the conditions. Site conditions which an experienced and prudent contractor could have anticipated by visiting the site, familiarizing himself with the local conditions under which the work is to be performed and correlating his observations with the requirements of the Contract Documents shall not be considered as claims for concealed or unknown conditions, nor shall the locations of utilities which differ from locations provided by the utility companies. The Project Engineer, or Project Manager, will promptly investigate such conditions and, if they differ materially and cause an increase or decrease in the Contractor’s cost of, or the required time for, performance of any part of the Work, will recommend an equitable adjustment in the Contract Sum or Contract Time, or both. If the Project Engineer, or Project Manager, determines that the conditions at the site are not materially different from those indicated in the Contract Documents and that no change in the terms of the Contract is justified, the Project Engineer, or Project Manager, shall so notify the Owner and Contractor in writing, stating the reasons. Claims by either party in opposition to such determination must be made within twenty-one (21) days after the Project Engineer, or Project Manager, has given notice of the decision. If the Owner and Contractor cannot agree on an adjustment in the Contract Sum or Contract Time, the adjustment shall be subject to further proceedings pursuant to Section 1.3.8 and Section 1.3.10. Such sections shall apply to claims by either party, notwithstanding language in said sections that they apply only to claims brought by the Contractor. 6.1.7 Specific Provisions for Delay-Based Contractor Change Requests - If the Contractor Change Request is based in whole or in part on a delay of any kind or nature, the complete itemized proposal shall include the following information in addition to all other required information: a) The date, nature, and circumstances of each event regarded as a cause of the delay; b) The names of all individuals acting on behalf of the Owner who are known or believed by the Contractor to have direct knowledge of the delay; c) If the Contractor claims acceleration costs of scheduled performance or delivery, the basis upon which acceleration arose; d) The identification of any documents and the substance of any oral communications known to the Contractor which substantiate, refute, or concern such delay; e) A Critical Path Method (CPM) schedule corrected to reflect actual performance, showing delay impacts as separate tasks and Contractor’s mitigation of such impacts; and f) The specific elements of Contract performance for which the Contractor may seek an equitable adjustment, including: 1) Identification of each Contract or schedule line item that has been or may be affected by such delay; 2) To the extent practicable, identification of the delay and disruption in the manner and sequence of performance, and the effect on continued performance, that have been or Page 365 of 553 35 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 Page 366 of 553 36 material, supplies and equipment in the largest practical quantity to receive quantity discounts. d) Equipment Costs. Without markup or operator, the lesser of (i) the actual net cost to the Contractor of owned or rented equipment, other than small tools; or (ii) the rental rate for such equipment as determined by using the following method(s): • Equipment rental rates listed in the appropriate rental rate book currently in use by CDOT. If an item of equipment does not appear in the rental rate book currently in use by CDOT, the rental rates published by the Associated Equipment Dealers may be used as a basis for negotiating a rental rate for a particular piece of equipment. The Contractor shall provide all information necessary to determine the appropriate rental rate at the time the equipment is brought on the job. • 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 Page 367 of 553 37 demand of the Owner. The Contract Price adjustment will be based upon any decrease in costs due solely to the variation below 75% of the estimated quantity. Where the quantity of a Unit Price pay item in the Contract is an estimated quantity and the actual quantity of such pay item is more than 25% above the estimated quantity in the Contract, the Owner may elect to terminate the Contract for convenience or issue a Change Order to adjust the Contract Price. The Contract Price adjustment will be based upon any increase in costs due solely to the variation above 125% of the estimated quantity. If the quantity variation is such as to cause an increase in the time necessary for completing the Work, the Contractor may request, in writing, an extension of time in accordance with these General Conditions. 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 Page 368 of 553 38 debarment proceedings; d) Significant or repeated violations of Federal Safety Regulations (OSHA); e) Failure to have the specific qualifications listed in the Contract Documents for the work that the Subcontractor will perform; f) Failure to have the required Owner or Colorado licenses to perform the work described in the subcontract; g) Failure to pay workers the proper wage and benefits or to pay suppliers or subcontractors with reasonable promptness within the last five (5) years; h) Conviction, plea of nolo contendere, entry into a formal agreement admitting guilt or entry of a plea of guilty or otherwise admitting culpability to criminal offenses of bribery, kickbacks, collusive proposing, bid-rigging, anti-trust, fraud, undue influence, theft, racketeering, extortion or any offense of a similar nature in connection with Subcontractor’s business, on 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, Page 369 of 553 39 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 WORKERS WITHOUT AUTHORIZATION AS LABORERS: The Contractor shall not knowingly employ or contract with a Worker without Authorization 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 knowinglyemploy or contract with a Worker without Authorization to perform work under this contract. 7.3.1 Confirmation of Eligibility - The Contractor shall confirm or attempt to confirm the employment eligibility of all employees who are newly hired for employment in the United States through participation in the E-Verify Program. If the Contractor is not accepted into the E-Verify Program prior to executing this contract for services, the Contractor shall apply to participate in the E-Verify Program every three months until the contractor is accepted or this contract has been completed, whichever occurs first. This paragraph 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 a Worker without Authorization 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 a Worker without Authorization, 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 a Worker without Authorization; 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 Worker without Authorization; 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 a Worker without Authorization. 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 Page 370 of 553 40 requirement in accordance with C.R.S. § 8-17-101. 7.4.2 Anti-Discrimination - While engaged in the performance of the Work, Contractor shall maintain employment practices consistent with the Colorado Antidiscrimination Act, C.R.S. § 24-34-301 through § 24-34-804, as amended. The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The Contractor will take affirmative action to ensure applicants are employed, and employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. 7.4.3 Civil Rights - In compliance with the Civil Rights Act of 1964, coupled with the Colorado Governor’s Executive Order dated July 6, 1972, Contractor, for itself and its assignees and successors in interest, agree as follows: (a) When applicable, the Contractor shall comply with the Regulations of the Department of 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. Page 371 of 553 41 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. 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 Workinaccordance with therequirements 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 Contractornorinterfere 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 Page 372 of 553 42 • 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 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 asgiven, except as herein provided, Workdonewithout 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 theWorkinprogress,or anyExtraor unclassified Workdonewithout written authorityand prior Agreement inwritingasto prices, willbe 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, Page 373 of 553 43 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 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. Page 374 of 553 44 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. 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 andobstructions erected bythe Contractorshallbe illuminated at night andalldevices for thispurpose 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, mayorder thedamaged portionimmediatelyremovedandreplaced 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 Page 375 of 553 45 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. 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 Page 376 of 553 46 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 (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 Page 377 of 553 47 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. 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 Page 378 of 553 48 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 anypublic services corporation, the Owner, anycompany, 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 shallalso 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 anypurpose without first obtainingpermission, and he shall beresponsible 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 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 anyclaim, 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 Page 379 of 553 49 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 anydesign 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 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 conformto 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 underthis 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 Page 380 of 553 50 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 Statutesregarding 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. 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 Page 381 of 553 51 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. 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) Page 382 of 553 52 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. 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 Page 383 of 553 53 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 anyother 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 itsemployees. Article 14. INDEMNIFICATION 14.1 CONTRACTOR TO OWNER: The Contractor shall, only to the extent and for an amount represented by the degree or percentage of negligence or fault attributable to the Contractor, indemnify, save harmless, and defend the City, its officers and employees, from and in all suits, actions or claims of any character brought because of: any injuries or damage received or sustained by any person, persons or property because of operations for the City under the Contract; the Contractor’s failure to comply with the provisions of the Contract; the Contractor’s neglect of materials while constructing the Work; because of any act or omission, neglect or misconduct of the Contractor; because of any claims or amounts recovered from any infringements of patent, trademark, or copyright, unless the design, device, materials or process involved are specifically required by Contract; from any claims or amount arising or recovered under the “Workers’ Compensation Act,” by reason of the Contractor’s failure to comply with the act; pollution or environmental liability; or any failure of the Contractor to comply with any other law, ordinance, order or decree. Nothing in this article requires the Contractor to defend, indemnify, or hold harmless the City from the City’s own negligence. 14.1.1 The Contractor will include this article in all Subcontracts. 14.1.2 The City may retain so much of the money due the Contractor under the Contract as the City considers necessary to offset any damages for which Contractor may be liable under this paragraph. If no money is due, the Contractor’s Surety may be held until such suits, actions, claims for injuries or damages have been settled. Money due the Contractor will not be withheld when the Contractor produces satisfactory evidence that it and the City are adequately protected by public liability and property damage insurance. 14.1.3 The Contractor will pay the City all expenses incurred to enforce this article. If the insurer of the Contractor fails to provide or pay for the defense of the City of Englewood, its officers and employees, as additional insured, the Contractor agrees to pay for the cost of that defense. 14.1.4 This article will survive Final Acceptance and the termination of this Contract. 14.2 OWNER TO CONTRACTOR: The City cannot, under Article XI, Section 1 of the Colorado Constitution, and by this Agreement/Contract does not agree to indemnify, hold harmless, exonerate or assume the defense of the Contractor or any other person or entity, for any purpose The Contractor and his Surety shall indemnify and save Page 384 of 553 54 harmless the Owner, its officers, agents, employees, successors and assigns from all suits, demands, actions, or claims of any nature whatsoever brought or made against the Owner, its officers, agents, employees, successors or assigns from any injuries or damages sustained by any person, firm or corporation or property or resulting from or arising out of any neglect in safeguarding the Work, or through the use of unacceptable materials in the construction of the improvement, or as a result of any act or omission by the said Contractor, or from the use, misuse, storage or handling of explosives or on account of any claims or amounts recovered for any infringement of patent, trade- mark, or copyright, or from any claims or amounts arising or recovered under the Workmen's Compensation Laws, or any other law, by-law, ordinance, order or decree, and so much of the money due the said Contractor under and by virtue of his Contract, as shall be considered necessary by the Owner, may be retained or, in case no money is due, his surety shall be held until such suit or suits, action or actions, claim or claims, for injuries or damages as aforesaid, shall have been settled and satisfactory evidence to that effect furnished to the Owner. 14.3 NO PERSONAL LIABILITY OF THE PROJECT ENGINEER, OR PROJECT MANAGER: The Project Engineer, or Project Manager, is an agent of Owner and the Project Engineer, or Project Manager, his agents, heirs, successors and assigns shall have no liability to any third party as a result of his performance of under this Contract. 14.4 NO WAIVER OF LEGAL RIGHTS: Inspection by the Project Engineer, or Project Manager, or by any of his duly authorized representatives, of any order, measurement, or certificate by the Project Engineer, or Project Manager; of any order by the Owner for the payment of money; of any payment for or acceptance of any Work or any extension 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 Page 385 of 553 55 business records commonly accepted in the industry, and shall comply with the requirements of these General Conditions concerning changes to the Contract Price. b) Any Claim for changes to the Contract Time shall include the information required by these General Conditions concerning changes to the Contract Time. The Claim shall be accompanied by copies of all Contract provisions or other documents supporting the Claim and a summary of the legal and factual theories supporting the Claim. A Claim for time extension must be accompanied by a revised Construction Schedule reflecting the effects of the delay on the completion of critical activities and showing actions that the Contractor has taken or proposes to take to minimize the effects of the delay. c) The Claim shall also identify any measures the Owner can take to minimize the Claim. d) The Contractor shall submit with its Claim a notarized certificate, executed under penalties of perjury, that: • The Claim is made in good faith; • All supporting data are accurate and complete to the best of the Contractor’s knowledge and belief; • The amount requested accurately reflects that Contract adjustment for which the Contractor believes the City is liable; and • The prices stated for material and equipment are the lowest reasonably available to the 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 Page 386 of 553 56 mediator names each and the mediator shall be selected by random drawing at which the Project Engineer, or Project Manager, and the Contractor are present. No discussions or statements of the mediator may be admitted as evidence in any subsequent litigation, nor may the mediator be called to testify in any litigation. The cost of the mediator shall be shared equally by the Parties. Mediation in accordance with this section shall be a condition precedent to filing any lawsuit relating to any Claim. 15.6 OWNER'S REMEDIES: If it should appear at any time prior to final payment that Contractor has failed or refused to prosecute, or has delayed in the prosecution of, the work with diligence at a rate that assures completion of the work in full compliance with the requirements of this contract on or before the completion date, or has attempted to assign this contract or Contractor's rights under this contract, either in whole or in part, or has falsely made any representation or warranty in this contract, or has otherwise failed, refused, or delayed to perform or satisfy any other requirement of this contract or has failed to pay its debts as they come due ("Event of Default"), and has failed to cure any such Event of Default within five business days after Contractor's receipt of written notice of such Event of Default, then Owner shall have the right, at its election and without prejudice to any other remedies provided by law or equity, to pursue any one or more of the following remedies: a) Owner may require Contractor, within such reasonable time as may be fixed by Owner, to complete 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. Page 387 of 553 57 Article 17. DISPOSAL; HAZARDOUS SUBSTANCES 17.1 REMOVAL AND DISPOSAL OF STRUCTURES AND OBSTRUCTIONS: All structures or obstructions found on the site and shown on the Plans which are not to remain in place or which are not to be used in the new construction shall be removed as directed by the Project Engineer, or Project Manager. Unless specified in the Proposal, this Work will not be paid for separately but will be included in the price Proposal for that portion of the Work requiring the removal of the obstruction. All material found on the site or removed therefrom shall become the property of the Contractor unless otherwise indicated. Materials determined by the Project Engineer, or Project Manager, to be unsuitable for backfill shall be disposed of off the site at the Contractor's expense. 17.2 CLEANING UP AND RESTORATIONS: The Contractor shall clean up and lawfully dispose of all refuse or scrap materials so the site presents a neat, orderly, and workmanlike appearance at all times. The Contractor shall follow all direction from the Project Engineer, or Project Manager, as to the appearance of the site at all times. The Contractor shall remove all mud or other materials tracked or otherwise deposited on any roadway daily or as directed by the Project Engineer, or Project Manager. Upon completion of the Work, and before Final Inspection, the Contractor shall remove from the construction site and any occupied adjoining property all plants, buildings, refuse, unused materials, forming lumber, sanitary 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 Page 388 of 553 58 believes may be Hazardous Substances, Contractor shall immediately stop Work in the area affected and immediately report the condition to Project Engineer, or Project Manager, and Owner in writing. If, in fact, the materials are Hazardous Substances, the Work in the affected area shall not thereafter be resumed, except by written agreement of Owner and Contractor, until the Hazardous Substances have been removed or rendered safe by Owner in accordance with all applicable laws at Owner’s expense, and Owner has provided reasonable evidence thereof to Contractor. The Work in the affected area shall be resumed in the absence of Hazardous Substances, when any Hazardous Substances have been rendered harmless, or when the conditions in the preceding sentence have been satisfied. Unless such materials were introduced to the Project by Contractor, Subcontractors, Sub- subcontractors, Suppliers, or their respective agents, representatives and employees, Owner shall be responsible for all reasonable costs related to any testing, removal, encapsulation, or remediation of any such substances or materials, and any additional cost of the Work arising out of any delay in the Work caused thereby. Except as to such materials introduced to the Project by Contractor, Subcontractors, Sub- subcontractors, Suppliers, or their respective agents, representatives and employees, any delays arising out of such testing, removal, encapsulation, or remediation shall be an Owner Delay, but only to the extent that the same causes actual delay in the Work that satisfies all the requirements necessary to be an Owner Delay under Section 3.4.1; provided, however, that if the Agreement is a GMGC Agreement, any increases in the Cost of Work (and any associated Construction Fee and General Conditions fee, if applicable) in connection with any such Owner Delay shall be charged to the Contingency, and an increase in the Guaranteed Maximum Price shall be allowed, if at all, only to the extent that such amounts exceed the balance of the Contingency. 17.9 ORDINARY COURSE MATERIALS: Nothing contained herein shall be deemed to preclude Contractor from using and bringing onto the Property materials and substances (which are otherwise Hazardous Substances) used in 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 Page 389 of 553 59 Drawings. (b) The Contract Documents are intended to be complementary, and Work called for on any Drawing and not mentioned in the Specifications, or Work described in the Specifications and not shown on any Drawing, is included under the Contract as if set forth in both the Specifications and Drawings. (c) Material and workmanship specified by the number, symbol, or title of a referenced standard shall comply with the latest edition or revision thereof and any amendments or supplements thereto in effect on the date the Proposal is received except where a particular issue or edition of a publication is indicated. In case of a conflict between the Drawings, Specifications and the referenced standard, the more stringent shall govern, as determined by the Project Engineer, or Project Manager. (d) If labor, materials or equipment, although not described by the Drawings or Specifications, is required to successfully complete the Work and can reasonably be inferred by competent contractors by virtue of common knowledge or customary practice in the construction industry from the Contract Documents as being necessary to produce the intended result, the Contractor shall perform that work or provide the materials or equipment as if they were specified. (e) Contractor shall carefully study the Contract Documents and, if Contractor identifies any discrepancies found between the Drawings and Specifications and site conditions and any adjacent work on which the Work is dependent and any errors or omissions in the Drawings or Specifications, shall promptly notify the Project Engineer, or Project Manager, of such discrepancies, errors, or omissions in writing, and any necessary changes shall be accomplished by issuance of an appropriate Change Order or Field 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. Page 390 of 553 60 The Contractor shall review and attempt to answer requests for information or clarification from its Subcontractors and Suppliers. Such requests shall be encompassed within the Contractor’s request for information or clarification by the Contractor to the Project Engineer, or Project Manager, if the Contractor is unable to answer such requests. 19.5 DIMENSIONS: Figured dimensions shall govern over scaled dimensions. 19.6 SHOP DRAWINGS (a) The Plans will be supplemented by Shop Drawings as necessary to adequately control the Work or as specified. Shop Drawings are not part of the Contract documents. Shop Drawings may consist of drawings, diagrams, illustrations, schedules, calculations, and other data prepared by the Contractor, Subcontractor, manufacturer, supplier, or distributor, which will illustrate how specific portions of the Work shall be fabricated and/or installed in accordance with the Plan details and Specifications. The Contractor shall provide Shop Drawings, settings, schedules, and such other Drawings as may be necessary for the prosecution of the Work in the shop and in the field as required by the Drawings, Specifications or Project Engineer, or Project Manager’s instructions. (b) Any Work done prior to the Owner's approval of Shop Drawings will be at the Contractor's risk. (c) The Project Engineer, or Project Manager, may request additional details and require the Contractor to make changes in the design which are necessary to conform to the provisions and intent of these 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. Anyinformation 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 actionwill 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; orRejected. (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. Page 391 of 553 61 (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 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 Page 392 of 553 62 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. 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 Page 393 of 553 63 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. 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 Page 394 of 553 64 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 ofthe Site shall be a Dispute and shall, at the request of either Contractor or Owner, be submitted to Dispute Resolution. Article 25. WAIVER 25.1 WAIVER: The waiver of any breach of a term, provision or requirement of this Contract, including the failure to insist on strict compliance or to enforce any right or remedy, shall not be construed or deemed as a waiver of: any subsequent breach of such term, provision or requirement or of any other term, provision or requirement; any right to insist on strict compliance with any term, provision or requirement; or any right to enforce any right or remedy with respect to that breach or any other prior, contemporaneous, or subsequent breach. 25.2 NO WAIVER: No inspection by the Project Engineer, or Project Manager, any other person acting on the Owner's behalf, nor any order, measurement, estimate or certificate by the Architect, nor any order by the Owner for the payment of money, nor any payment for or acceptance of any Work, nor any extension of time, nor any possession taken by the Owner, shall operate as a waiver of any right of Owner arising out of or related to the Contract. No waiver of any breach of the Contract shall be construed as a waiver of any other or subsequent breach thereof. Article 26. OTHER CONDITIONS Page 395 of 553 65 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 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. Page 396 of 553 66 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 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. Page 397 of 553 67 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 398 of 553 Contract Number City Contact Information: Staff Contact Person Phone Title Email Summary of Terms: Original Contract Amount Start Date TBD Amendment Amount End Date TBD Amended Contract Amount Total Term in Years .25 Years Vendor Contact Information: Name Contact Address Phone Email Colorado Springs CO City State Zip Code Contract Type: Please select from the drop down list Descripiton of Contract Work/Services Procurement Justification of Contract Work/Services CONTRACT APPROVAL SUMMARY West Fork Construction 10635 Thomas Rd CFC-Contract for Construction CFC 23-113 $ 491,612.50 $ - $ 491,612.50 303-913-8696Devin Keener dkeener@englewoodco.govCapital Projects Engineer Renewal options available NA 2023 Alley Grading Project The City issued an invitation for bid entitled "ITB 23-020 2023 Alley Grading Project" and received 1 bid from West Fork Construction. That bid was higher than the City has budgeted for this project, so City Staff renegotiated the project scope and pricing with West Fork Construction to come to an agreement on a limited scope that fits within the project budget. 80908 Payment or Revenue terms (please describe terms or attached schedule if based on deliverables) (719) 491-4495 tim@westforkconstruction.co Tim Valdez 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. Page 399 of 553 CONTRACT APPROVAL SUMMARY Source of Funds: Revenue CAPITAL ONLY A B C 1=A-B-C Capital Tyler New World Spent To Contract Budget Operating Year Project # / Task #Fund Division Account Line Item Description Contract Title Budget Date Amount Remaining C 2023 30 1001 007 Alley Construction Contract 445,410.69$ 2,800.00$ 441,612.50$ 998.19$ C 2023 30 1001 031 Pavement Maintenance by Area Contract 5,271,818.08$ $3,514,058.00 50,000.00$ 1,707,760.08$ -$ -$ -$ -$ Total Current Year Total 5,717,228.77$ 3,516,858.00$ 491,612.50$ 1,708,758.27$ GRAND TOTAL 5,717,228.77$ 3,516,858.00$ 491,612.50$ 1,708,758.27$ Process for Choosing Contractor: Solicitation Name and Number Attachment (For Capital Items Only / Expense Line Item Detail is Located in OpenGov): All Other Attachments: ITB 23-020 2023 Alley Grading Project NOTES/COMMENTS (if needed): For Operating Line Item Detail, please review information provided in Tyler New World For Capital Items, please review Prior Month's Project Status and Fund Balance Report General Ledger Account String Solicitation:Evaluation Sum mary/B id Tabulation Attached Proposal/Bid Atta ched Prior M onth-E nd Project Status a nd Fund B ala nce R ep ort E valua tion Sum mary/Bid Tabulation Atta chedE valua tion Sum mary/Bid Tabulation Atta chedE valua tion Sum mary/Bid Tabulation Atta chedC ontra ct C opy of O riginal C ontract if this is a n Amendm ent C opies of Related C ontra cts/C onveya nces/D ocuments Addendum(s) E xhibit(s) Certificate of Insurance Page 400 of 553 i GENERAL CONDITIONS OF THE CONTRACT TABLE OF CONTENTS Article 1. DEFINITIONS AND INTERPRETATION .............................................................................. 1 1.1 Definitions .............................................................................................................................. 1 1.2 References .............................................................................................................................. 4 1.3 Intention of Terms .................................................................................................................. 4 1.4 Computation of Time ............................................................................................................. 4 1.5 Abbreviations ......................................................................................................................... 4 1.6 Interpretation ......................................................................................................................... 5 Article 2. PRELIMINARY MATTERS ................................................................................................ 6 2.1 Delivery of Bonds and Evidence of Insurance ........................................................................ 6 2.2 Notice to Proceed................................................................................................................... 6 2.3 Authority of the City Manager ............................................................................................... 6 2.4 Plans and Specifications ......................................................................................................... 6 2.5 Special Work ........................................................................................................................... 6 2.6 Pre-Construction Meeting ...................................................................................................... 6 2.7 Contractor’s Understanding of Work ..................................................................................... 7 2.8 Contractor’s Representation .................................................................................................. 7 2.9 Other Work ............................................................................................................................ 7 2.10 Notices ................................................................................................................................... 7 2.11 Contractor’s Signs .................................................................................................................. 7 2.12 Publicity and Advertising ........................................................................................................ 7 Article 3. PAYMENTS ................................................................................................................... 7 3.1 Measurement of Work Performed......................................................................................... 7 3.2 Payments to Contractor and Completion .............................................................................. 7 3.3 Appropriate of Funds ........................................................................................................... 12 3.4 Payment for Increased or Decreased Quantities ................................................................. 12 3.5 Payment for Omitted Items ................................................................................................. 12 3.6 Extra and Force Account Work ............................................................................................. 12 3.7 Partial Payments .................................................................................................................. 13 3.8 Taxes / Direct Purchase Option ............................................................................................ 13 3.9 Liens ..................................................................................................................................... 14 3.10 Deductions ........................................................................................................................... 15 Article 4. COMPLETION, TIME and DELAYS IN CONSTRUCTION .................................................... 15 4.1 Delays ................................................................................................................................... 15 4.2 Construction Schedule ......................................................................................................... 15 4.3 Subcontracting or Assigning of Contract .............................................................................. 16 4.4 Commencement of Work ..................................................................................................... 16 4.5 Limitation of Operations ...................................................................................................... 16 4.6 Progress Schedule ................................................................................................................ 16 4.7 Character of Workman and Equipment ............................................................................... 17 4.8 Suspension of Work ............................................................................................................. 17 4.9 Suspension of Work for City’s Convenience ........................................................................ 18 4.10 Suspension of Work Due to Order of City, County, State or Federal Court or Agency ........ 18 4.11 Suspension of Work Resulting from Contractor’s Failure to Perform ................................. 18 Page 401 of 553 ii 4.12 Contract Time ....................................................................................................................... 18 4.13 Liquidated Damages ............................................................................................................. 19 4.14 Adjustment for Suspended Work ......................................................................................... 20 4.15 Termination of Contract ....................................................................................................... 20 4.16 Termination for Cause .......................................................................................................... 20 4.17 Termination for Convenience of Owner .............................................................................. 21 4.18 Cooperation with Other Contractors ................................................................................... 23 4.19 Terminating of Contractor’s Responsibility .......................................................................... 24 Article 5. PROJECT AND CONSTRUCTION MANAGEMENT ............................................................ 24 5.1 Authority of Project Engineer or Project Manager .............................................................. 24 5.2 Communications .................................................................................................................. 24 5.3 Supervision ........................................................................................................................... 24 5.4 Contractor Performance ...................................................................................................... 25 5.5 Work Performed Under Adverse Weather Conditions ........................................................ 25 5.6 Use of Materials Found on the Work Site ............................................................................ 25 5.7 Final Cleaning Up .................................................................................................................. 25 5.8 Surveys ................................................................................................................................. 25 5.9 Lines and Grades .................................................................................................................. 26 5.10 Value Engineering ................................................................................................................ 26 5.11 Sanitary Regulations ............................................................................................................. 26 5.12 Staging and Storage .............................................................................................................. 26 5.13 Salvage ................................................................................................................................. 27 5.14 Materials and Equipment Furnished by the Contractor ...................................................... 27 5.15 Substitution of Materials and Equipment ............................................................................ 27 5.16 Cutting and Patching ............................................................................................................ 28 5.17 Samples and Testing ............................................................................................................. 28 5.18 Property Rights in Materials ................................................................................................. 29 Article 6. CHANGES IN THE WORK .............................................................................................. 29 6.1 Changes and Increased or Decreased Quantities of Work ................................................... 29 6.2 Adjustments to Contract Price ............................................................................................. 35 6.3 Omitted Items ...................................................................................................................... 37 6.4 Work Not Specified But Included ......................................................................................... 37 6.5 Extra Work – Force Account ................................................................................................. 37 6.6 Unauthorized Work .............................................................................................................. 37 Article 7. SUBCONTRCTORS, SUPPLIERS AND PERSONNEL ........................................................... 37 7.1 Subcontractors ..................................................................................................................... 37 7.2 Workforce ............................................................................................................................ 38 7.3 Workers without Authorization as Laborers ........................................................................ 38 7.4 Personnel & Civil Rights ....................................................................................................... 39 Article 8. INSPECTIONS; CORRECTION OF DEFECTS ...................................................................... 40 8.1 Defective Work and Materials ............................................................................................. 40 8.2 Substituted Performance ..................................................................................................... 41 8.3 Authority and Duties of Inspectors ...................................................................................... 41 8.4 Inspection ............................................................................................................................. 41 8.5 Removal of Defective and Unauthorized Work.................................................................... 42 8.6 Geotechnical and Other Design Professional Reports, Investigations & Tests .................... 43 Article 9. PROTECTION OF PERSONS, PROPERTY AND ENVIRONMENT ......................................... 43 9.1 Protection of Persons ........................................................................................................... 43 Page 402 of 553 iii 9.2 Protection of Property ......................................................................................................... 44 9.3 Protection of Historical Sites ................................................................................................ 44 9.4 Responsibility to Repair ....................................................................................................... 44 9.5 Traffic Control ...................................................................................................................... 44 9.6 Protection of Street Signs, Traffic Signs and Signals ............................................................ 46 9.7 Utilities ................................................................................................................................. 46 9.8 Coordination with Englewood Utilities ................................................................................ 46 9.9 Notification of Affected Utility and Property Owners .......................................................... 46 9.10 Pollution Control .................................................................................................................. 46 9.11 Public Convenience and Safety ............................................................................................ 47 9.12 Use of Explosives .................................................................................................................. 47 9.13 Restoration of Property ........................................................................................................ 47 Article 10. PERMITS AND LICENSES; COMPLIANCE WITH CURRENT LAWS ...................................... 47 10.1 Compliance with Laws, Licenses and Permits ...................................................................... 48 Article 11. BONDS ........................................................................................................................ 49 11.1 Bonds .................................................................................................................................... 49 Article 12. WARRANTY ................................................................................................................ 49 12.1 Scope of Warranty................................................................................................................ 49 12.2 Owners Right to Correct ....................................................................................................... 50 12.3 Non-Emergency Warranty Work .......................................................................................... 50 12.4 Performance During Warranty Period ................................................................................. 50 Article 13. INSURANCE; RISK OF LOSS ........................................................................................... 50 13.1 General Requirements ......................................................................................................... 50 13.2 Required Policies and Limits ................................................................................................ 51 13.3 Terms of Insurance ............................................................................................................... 52 Article 14. INDEMNIFICATION ...................................................................................................... 53 14.1 Contractor to Owner ............................................................................................................ 53 14.2 Owner to Contractor ............................................................................................................ 53 14.3 No Personal Liability of the Project Engineer or Project Manager ...................................... 54 14.4 No Waiver of Legal Rights .................................................................................................... 54 Article 15. DEFAULTS, REMEDIES AND TERMINATION ................................................................... 54 15.1 Notice of Disputes and Objections ....................................................................................... 54 15.2 Negotiations of Disputes ...................................................................................................... 55 15.3 Decision ................................................................................................................................ 55 15.4 Waiver .................................................................................................................................. 55 15.5 Contractor’s Remedies ......................................................................................................... 55 15.6 Owner’s Remedies ............................................................................................................... 56 15.7 Owner’s Special Remedy for Delay ...................................................................................... 56 15.8 Attorney’s Fees .................................................................................................................... 56 Article 16. INDEPENDENT CONTRACTOR ...................................................................................... 56 Article 17. DISPOSAL; HAZARDOUS SUBSTANCES .......................................................................... 57 17.1 Removal and Disposal of Structures and Obstructions ........................................................ 57 17.2 Cleaning Up and Restorations .............................................................................................. 57 17.3 Removal of Condemned Materials and Work ...................................................................... 57 17.4 Pests & Vector Control ......................................................................................................... 57 Page 403 of 553 iv 17.5 Hazardous Substances ......................................................................................................... 57 17.6 Existing Facilities – Hazardous Substances May Exist .......................................................... 57 17.7 No Introduction of Hazardous Substances ........................................................................... 57 17.8 Suspected Hazardous Substances ........................................................................................ 57 17.9 Ordinary Course Materials ................................................................................................... 58 Article 18. ROYALTIES AND PATENTS ............................................................................................ 58 18.1 Patents and Copyrights ........................................................................................................ 58 Article 19. DRAWINGS, DETAIL AND INSTRUCTIONS ..................................................................... 58 19.1 Drawings and Specifications ................................................................................................ 58 19.2 Copies of Drawings and Specifications Furnished ................................................................ 59 19.3 Utilities ................................................................................................................................. 59 19.4 Requests for Clarification and Information .......................................................................... 59 19.5 Dimensions ........................................................................................................................... 60 19.6 Shop Drawings ...................................................................................................................... 60 19.7 Record Documents ............................................................................................................... 61 19.8 Operating Manuals and Parks Lists ...................................................................................... 61 19.9 Conformity With Plans and Allowable Deviations ............................................................... 61 19.10 Coordination of Specifications, Plans and Special Provisions .............................................. 61 19.11 Ownership to Work Product ................................................................................................ 61 Article 20. RIGHT-OF-WAY ........................................................................................................... 61 20.1 Acquisition of Right-of-Way ................................................................................................. 61 20.2 Access to Right-of-Way ........................................................................................................ 62 20.3 Rights-of-Way ....................................................................................................................... 62 Article 21. SUBMITTALS ............................................................................................................... 62 21.1 Schedule of Submittals ......................................................................................................... 62 21.2 Scope of Engineer’s Reviews ................................................................................................ 62 21.3 Review Process ..................................................................................................................... 62 Article 22. NOTICES ..................................................................................................................... 62 Article 23. OWNER’S GENERAL RESPONSIBILITIES ......................................................................... 62 23.1 Owner Performance ............................................................................................................. 62 23.2 Project Engineer or Project Manager ................................................................................... 63 23.3 Right to Bar Persons From the Work or Site ........................................................................ 63 23.4 Access to Work ..................................................................................................................... 63 23.5 Inspection ............................................................................................................................. 63 Article 24. CONCEALED CONDITIONS ............................................................................................ 64 24.1 Discovery of Concealed Physical Conditions ........................................................................ 64 24.2 Inspection and Drawing Update ........................................................................................... 64 24.3 Delays ................................................................................................................................... 64 24.4 Change Order ....................................................................................................................... 64 24.5 Costs ..................................................................................................................................... 64 Article 25. WAIVER ...................................................................................................................... 64 25.1 Waiver .................................................................................................................................. 64 25.2 No Waiver ............................................................................................................................ 64 Article 26. OTHER CONDITIONS .................................................................................................... 64 Page 404 of 553 v 26.1 Binding Contract ................................................................................................................... 64 26.2 Legislative of Judicial Decisions ............................................................................................ 65 26.3 Superseding .......................................................................................................................... 65 26.4 Professional Standards ......................................................................................................... 65 26.5 Notification in Writing .......................................................................................................... 65 26.6 Headings for Reference Only ............................................................................................... 65 26.7 One Instrument .................................................................................................................... 65 26.8 Third Party Claims ................................................................................................................ 65 26.9 Calendar Days ....................................................................................................................... 65 26.10 Written Consent ................................................................................................................... 65 26.11 Reallocation of Resources .................................................................................................... 65 26.12 Disclosure of Confidential Information ................................................................................ 66 26.13 Audit ..................................................................................................................................... 66 26.14 Federal Aid Provisions .......................................................................................................... 66 26.15 Duties & Remedies ............................................................................................................... 66 26.16 Survival ................................................................................................................................. 66 26.17 Government Immunity ......................................................................................................... 66 26.18 Construction ......................................................................................................................... 66 26.19 No Implied Representations ................................................................................................ 66 26.20 Financial Obligations of the City ........................................................................................... 66 26.21 Assignment/Transference .................................................................................................... 66 26.22 Amendments ........................................................................................................................ 66 26.23 No Third-Party Beneficiaries ................................................................................................ 66 26.24 Independent Contract – No Partnership or Agency ............................................................. 66 26.25 Governing Law, Jurisdiction, Venue ..................................................................................... 66 26.26 Attorney’s Fees and Costs .................................................................................................... 67 Page 405 of 553 1 Article 1. DEFINITIONS AND INTERPRETATION 1.1 DEFINITIONS: Whenever the following terms or pronouns are used in the Specifications and Contract Documents, the intent and meaning shall be as follows Terms defined in the Agreement or other Contract Documents, and not defined within this Article, shall have the meaning given them in the Document where defined. 1) ADDENDA: Written changes to the Bid Documents issued before the opening of Bids that clarify, correct, or change the Contract or change the date set for the Opening of Bids. 2) AMENDMENT: A change to the original contract which sets forth additional work which is new, and is outside the scope of the original contract and/or proposal. Such Amendment may require additional funding and bonding, and will require approval in accordance with the Owner’s purchasing policy. 3) BID: The offer or proposal of the Bidder submitted on the prescribed forms setting forth the prices for the Work to be performed. 4) BIDDER: The individual or entity who submits a Bid directly to Owner. 5) BID SECURITY: The security, as designated in the “Instructions to Bidders” furnished with the Bid by the Bidder as a guarantee that the Bidder will enter into the Contract and Furnish Bond(s) as required if the work be awarded to such Bidder. 6) BONDS: Bid, performance, payment and material bonds, any warranty bond, or other instruments of security furnished by the Contractor and its Surety to the Owner according to the Contract. 7) CHANGE ORDER: A written order to the Contractor, signed by the Project Engineer, on behalf of Owner, ordering a change that has been found necessary in the Work from that originally shown in the Plans and Specifications but which is still within the general scope of the Contract. If the Work is of a nature involving an adjustment of unit prices, a Supplemental Agreement shall be executed. A change order set forth upon a change order form generated by Owner, and signed by both Owner and Contractor, authorizes modifications to the existing contract documents. 8) COMPLETION DATE: The date the Contract specifies the Work is to be completed. 9) CONSTRUCTION SCHEDULE: The schedule of Work approved by Owner in accordance with the Contract Documents. 10) CONTRACT OR CONTRACT DOCUMENTS: The written Agreement executed between the Owner and the successful Bidder (“Contractor”), covering the performance of the Work and the furnishing of labor and materials, which binds the Contractor to perform the Work and furnish the labor and materials and by which the Owner is obligated to provide compensation at a mutually established and accepted rate or price. The Contract shall include Contract Agreement, Request for Bid, Bidder’s response (“Bid”), Bid Bond, Performance Bond, Payment Bond, Material Bond, Notice of Award and Notice to Proceed, Final Acceptance and Warranty Initiation, Final Receipt, Notice of End of Basic Warranty Period, Special Provisions, General Provisions, Statements of Work, Technical Specifications, Plans, Specifications, Drawings and Addenda or Change Orders, and any and all Supplemental Agreements which may be subsequently entered into to complete the Work in an acceptable manner in accordance with the Plans and Specifications. 11) CONTRACT PRICE: The total monies payable to the Contractor under the terms and conditions of the Contract. 12) CONTRACT TIME: The number of days provided in the Contract for the completion of the Project from the date of the Notice to Proceed through and including the date of Final Acceptance. The Contract Documents may require completion on or before a certain specified date. 13) CONTRACTOR: The successful bidder, who may be an individual, partnership, firm, or corporation, who executes the Contract, acting directly or through lawful agents or employees, primarily liable for the acceptable performance of the Work for which contracted, and for the payment of all legal debts pertaining to the Work. 14) CRITICAL PATH: a sequence of project tasks that add up to the longest project duration. If any tasks on the critical path experience delays, the overall project schedule must be extended. 15) DATE OF CONTRACT (“Effective Date of Contract”): The execution date in the Agreement for a Construction Contract unless otherwise specified. 16) DAY: A calendar day of twenty-four hours, from midnight to midnight, unless otherwise specified herein. Page 406 of 553 2 17) DRAWINGS: The part of the Contract Documents prepared or approved by the Project Engineer which graphically shows the scope, extent, and character of the Work to be performed by Contractor, including plans, profiles, typical cross-sections, general cross-sections, elevations, schedules, and details which show locations, character, dimensions, and details of the Work. Shop drawings and other Contractor submittals are not Drawings as so defined. 18) E-VERIFY: (formerly known as the Basic Pilot/Employment Eligibility Verification Program) An internet based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees. 19) ENGINEER (“Project Engineer”): The Owner’s designated, authorized representative assigned to the Project. The Project Engineer may have day-to-day responsibility for managing the Contract, or may designate in writing a Project Manager to provide day-to-day responsibility for managing the Contract. 20) EQUIPMENT: All machinery, together with the necessary supplies for upkeep and maintenance, and all tools and apparatus necessary for the proper construction and acceptable completion of the Work. 21) EXTRA WORK: Work not provided for in the Contract as awarded but found to be essential to the satisfactory completion of the Contract, within its intended scope. 22) FIELD ORDER: A written order effecting minor change in the Work not involving an adjustment in the Contract Price or an extension of the Contract Time, issued by the Project Engineer to the Contractor during construction. 23) FINAL ACCEPTANCE: An acknowledgment made by the Owner that all Work, as defined in Paragraph 59 herein, has been completed. The Owner’s final acceptance of the Work completed according to the Contract requirements with all parts of the Work in good condition and in working order, including completion of all punch list items, cleanup work, and delivery of all required guarantees, warranties, licenses, releases, and other deliverables. 24) FINAL PAYMENT: The final and complete payment to the Contractor in accordance with the Contract Documents. 25) FORCE ACCOUNT: A method of payment, other than lump sum or unit price, for Work ordered by a Change Order. 26) INSPECTOR: An authorized designee of the Engineer or Project Manager, assigned to make all necessary inspection of the Work performed or being performed, or of the materials furnished or being furnished by the Contractor. 27) LABORATORY: The official testing laboratories of the Owner or such other laboratories as may be designated by the Project Engineer. 28) NOTICE OF AWARD: A written notice to the successful Bidder stating their Bid has been accepted and that, in accordance with the terms of the notice to Contractors and the Specifications, such Bidder is required to execute the Contract and furnish satisfactory Bonds. 29) NOTICE OF FINAL ACCEPTANCE: The written notice of the date, as certified by the Owner, of Final Acceptance. 30) NOTICE TO PROCEED: A written notice given by Owner to Contractor fixing the date upon which the Contract Times will commence to run and on which Contractor shall start to perform the Work under the Contract Documents. 31) NOTICE OF SUBSTANTIAL COMPLETION: The written notice of the date, as certified by the Owner, of Substantial Completion. 32) NOTICE OF TERMINATION: Written notice from the Owner to the Contractor to stop Work under the Contract on the date and to the extent specified in the Notice of Termination. 33) OWNER (“City”): The City of Englewood, Colorado. 34) PARTIES: The Owner and the Contractor. 35) PAYMENT BOND: The approved form of security furnished by the Contractor and the Contractor’s surety as a guarantee to pay in full all bills and accounts for materials and labor used in the construction of the Work, as provided by law. 36) PERFORMANCE BOND: The approved form of security furnished by the Contractor and the Contractor’s surety as a guarantee of good faith and ability on the part of the Contractor to Page 407 of 553 3 execute the Work in accordance with the terms of the Plans, Specifications, and Contract. In lieu of a separate Performance Bond, a combination Performance, Labor and Material Payment Bond may be supplied by the Contractor. 37) PERFORMANCE, LABOR AND MATERIAL PAYMENT BOND: Security furnished by the Contractor and his surety as a guarantee to pay in full all bills and accounts for materials and labor used in the Work and to execute the Work in accordance with the Contract. 38) PLANS: The official Plans, working drawings, or supplemental drawings or exact reproductions thereof, approved by the Project Engineer which show the locations, character, dimensions, and details of the Work to be done and which are to be considered part of the Contract, supplementary to these Specifications. 39) PROGRESS SCHEDULE: A construction schedule prepared by the Contractor in a bar- chart, critical path or other format acceptable to the Engineer which includes the start and completion dates of all salient features of the Work as specified in Paragraph 41 hereof. 40) PROJECT: The total construction of which the Work to be provided under the Contract Documents may be the whole or a part as indicated elsewhere in the Contract Documents, and may include construction by other contractors. 41) PROJECT MANAGER: A representative of Owner authorized in writing by the Project Engineer/Engineer, and reporting to the Project Engineer/Engineer, to oversee the Project through day-to-day responsibility for managing the Contract. 42) PROPOSAL: The written offer of the Proposer, when submitted on the approved Proposal form, to perform the contemplated Work and furnish the necessary materials in accordance with the provisions of the Plans and Specifications. 43) BID BOND: The security, as designated in the Request for Bids to guarantee the Bidder will accept the Work under the terms set forth within the Bid Documents and Bid Response if the Work is awarded to such Bidder. 44) BIDDER: Any individual, firm, or corporation, submitting a Proposal or Bid for the Work contemplated within the Bid Documents... 45) REASONABLY PREDICTABLE WEATHER DELAYS: Estimated Weather Day(s) where critical path activities cannot be performed in any month, within contract weather or temperature limitations, or due to weather related conditions. 46) SHOP DRAWINGS: All drawings, diagrams, illustrations, brochures, schedules and other data which are prepared by the Contractor, a subcontractor, manufacturer, supplier, or distributor, which illustrate how specific portions of the Work shall be fabricated or installed. 47) SPECIAL PROVISIONS: Specific clauses setting forth conditions or requirements particular to the Project as set forth in the Proposal, which are not stipulated in the General Provisions or Technical Specifications. 48) SPECIFICATIONS: A part of the Contract Documents consisting of written technical descriptions of materials, equipment, construction systems, standards, and workmanship. The directions, provisions, and requirements contained therein, and which may be supplemented by Special Provisions, pertaining to the method and manner of performing the Work, or to the quantities or the qualities of materials to be furnished under the Contract. 49) STRUCTURES: Bridges, culverts, sewers, catch basins, retaining walls, manholes, headwalls, buildings, valve vaults and other features which may be encountered or included in the Work and not otherwise classified herein. 50) SUBCONTRACTOR: Any person or entity having a subcontract with the Contractor (or any Subcontractor, of any tier, whether or not authorized by the Contractor) to furnish and perform work at the Work site, including the provision of labor, materials, equipment, supplies, tools, services, or any combination of these. This definition shall not limit the Contractor’s obligations, or alter any Subcontractor’s rights, under any law or contract. 51) SUBSTANTIAL COMPLETION: The date on which the Work has progressed to the point that the Owner can beneficially occupy or utilize the Work for the purpose for which it is intended, and the Work complies with all applicable codes and regulations, including, if required, issuance of a certificate of occupancy, or certificate of suitability for use from the appropriate governmental agencies, as determined by the Owner in its sole discretion 52) SUPERINTENDENT: The executive representative for the Contractor who is present on the Work at all times, authorized to receive and fulfill instructions from the Engineer or Project Manager Page 408 of 553 4 and capable of supervising the Work efficiently. 53) SUPPLEMENTAL AGREEMENT: A written Proposal and Agreement, including Amendments, executed by the Contractor and by the Owner, with increased bonding from the surety if such agreement results in an increase in the total contract amount, covering Work not included in the Plans and Proposal or as specified in Section 1.3 which is necessary to for the proper completion of the Project. A supplemental agreement includes addendums to the original agreement, amendments to the original agreement, or change orders if such change order modifies a cost or price agreed to within the original agreement. 54) SUPPLIER: Any person or organization who supplies materials or equipment for the Work, including that fabricated to a special design, but who does not perform labor at the site. This definition shall not limit the Contractor’s obligations, or alter any Supplier’s rights, under any law or contract. 55) SURETY: The corporate body or individuals who are bound by the Bid Bond, Performance Bond and the Payment Bond or the Performance, Labor and Material Payment Bond, with and for the Contractor and which engage to be responsible for the entire and satisfactory fulfillment of the Contract and for the payment of all debts incurred in fulfilling the Contract. 56) UNIT PRICE: An amount stated in the Proposal as a price per unit of measurement for materials or services as described in the Contract. Unit Prices are intended to cover all items of work to be done and materials to be furnished to fully complete the Work in accordance with the Contract Documents (including without limitation the cost of appurtenant items of work, labor, materials, fees, bond costs, supplies, utilities, royalties, tools, forms and equipment, and all other costs (including without limitation sales and use tax, insurance, licenses, permits, profit, and other overhead) not listed separately, not shown on the Plans and Specifications, or not specified but necessary to complete the Work in accordance with the Contract Documents). 57) WEATHER DAY: Any day on which Work is scheduled in the Construction Schedule but cannot be performed within contract weather or temperature limitations or due to weather related soil conditions, and where work on critical activities cannot be performed for more than fifty percent (50%) of the work day, including any day immediately following a Weather Day on which subsequent day Work was scheduled in the Construction Schedule but cannot be performed on scheduled critical path activities due to weather related site or soil conditions for more than fifty percent (50%) of the day (drying days). 58) WORK: The term "Work" shall be understood to mean the furnishing of all labor, materials, equipment, and other incidentals necessary or convenient to the successful completion of the Project and the carrying out of all the duties and obligations imposed by the Contract. 1.2 REFERENCES: Words describing materials or Work having a well-known technical or trade meaning in an industry, unless otherwise specifically defined, shall be construed in according to well-known meanings as recognized by engineers, architects, and the trades. All references to standard specifications, methods of testing materials, codes, practices, and requirements refer to the edition of each in effect on the date of the Request for Bids unless a specific edition or revision is referenced. 1.3 INTENTION OF TERMS: Any reference to a paragraph or subparagraph within a section shall include the general provision of the section or sections and paragraph pertinent thereto. 1.4 COMPUTATION OF TIME: Any period of time referred to in the Contract Documents will be computed as consecutive calendar days. 1.5 ABBREVIATIONS: When the following abbreviations appear in the documents, they are defined as follows: AASHTO American Association of State Highway and Transportation Officials ACI American Concrete Institute ACPA American Concrete Pipe Association AGC Associated General Contractors of America, Inc. AIA American Institute of Architects AIEE American Institute of Electrical Engineers AISC American Institute of Steel Construction ANSI American National Standards Institute APHA American Public Health Association APWA American Public Works Association ASA American Standards Association ASCE American Society of Civil Engineers ASME American Society of Mechanical Engineers ASTM American Society for Testing and Materials Page 409 of 553 5 AWS American Welding Society AWSC American Welding Society Code AWWA American Water Works Association CDOT Colorado Department of Transportation CPM Critical Path Method COE City of Englewood DHS U.S. Department of Homeland Security EPA U.S. Environmental Protection Agency EWD Englewood Water Department GESC Grading, Erosion and Sediment Control IEEE Institute of Electrical and Electronic Engineers MUTCD Manual on Uniform Traffic Control Devices NBS National Bureau of Standards NCPI National Clay Pipe Institute NEC National Electric Code NEMA National Electrical Manufacturer’s Association OSHA Occupational Safety & Health Administration RCRA Resource Conservation and Recovery Act SAME Society of American Military Engineers SPWRP South Platte Water Renewal Partners SAVE Systematic Alien Verification or Entitlement program WW-P Federal Specifications Prefix 1.6 INTERPRETATION 1.6.1 Whenever, in these Specifications, or upon the Plans, or within the Contract Documents the words "directed," "required," "permitted," "ordered," "designated," "prescribed," or words of like import, are used, it shall be understood that the direction, requirement, permission, order, designation, or prescription of the Engineer or Project Manager is intended; and similarly, the words "approved," "acceptable," "satisfactory," or words of like import shall mean approved by, or acceptable to or satisfactory to the Engineer or Project Manager, unless otherwise expressly stated, subject in each case to the final determination of the Owner. 1.6.2 “Including” shall, unless otherwise specifically stated, mean including, but not limitedto. 1.6.3 Words such as “hereby,” “herein,” and “hereunder” and words of similar import shall be construed to refer to the Agreement in its entirety and the General Conditions of the Contract, subject to the provisions of the Agreement relating to resolution of differences between terms of different Contract Documents. 1.6.4 Where otherwise consistent with the context, the singular shall include the plural and the plural shall include the singular. 1.6.5 The titles of articles and sections used in the Agreement and these General Conditions of the Contract are primarily for the convenience of the reader but may be used as aids in interpreting any provision herein. If any of the provisions of the exhibits attached to the Agreement hereto or of any of the Contract Documents are inconsistent with the provisions of the Agreement, the provisions of the Agreement shall control. 1.6.6 Any references to “days” in any Contract Documents refer to calendar days. Any references in any Contract Documents or any communications between Owner and Contractor to “business days” refer to days when Owner’s administrative offices are open for the regular conduct of business. 1.6.7 When “furnish,” “install,” “perform,” or “provide” is not used in connection with services, materials, or equipment in a context clearly requiring an obligation of Contractor, “provide” is implied. 1.6.8 Unless stated otherwise in the Contract Documents, words or phrases which have a well-known technical or construction industry or trade meaning are used in the Contract Documents in accordance with such recognized meaning. Page 410 of 553 6 Article 2. PRELIMINARY MATTERS 2.1 DELIVERY OF BONDS AND EVIDENCE OF INSURANCE. When Contractor delivers the executed counterparts of the Contract to Owner, Contractor shall also deliver to Owner such bonds as Contractor may be required to furnish. Before any Work at the Site is started, Contractor and Owners shall each deliver to the other, with copies to each additional insured identified in the Article 13 below, certificates of insurance (and other evidence of insurance with either of them or any additional insured may reasonably request) which Contract and Owner respectively are required to purchase and maintain in accordance with Article 13 below. 2.2 NOTICE TO PROCEED: Owner will give the Contractor written Notice to Proceed with the Work after execution of the Contract by the Owner. The Contractor shall begin the Work by the date stated in the Notice to Proceed and diligently pursue the Work regularly and without interruption (unless otherwise directed in writing by the Engineer or Project Manager) with the work force necessary to complete the Work and achieve Substantial Completion within the Contract Time. The Contract Times will commence to run on the thirtieth day after the Effective Date of the Contract if no Notice to Proceed is provided. If any milestones are described in the Contract Documents or the approved Construction Schedule, the Work described by each milestone shall be accomplished on or before that milestone in accordance with the Contract Documents. 2.3 AUTHORITY OF THE PUBLIC WORKS DIRECTOR: The Project Engineer shall be the representative of the Owner in all matters concerning the Contract and the work to be performed thereunder, except the Public Works Director of the Owner shall have the authority to terminate the Contract as elsewhere herein provided. The Public Works Director shall make the final decision on all questions as to acceptable fulfillment of the Contract should a dispute between the Contractor and the Project Engineer occur. 2.4 PLANS AND SPECIFICATIONS: It is agreed by the parties hereto that the following list of instruments, drawings and documents which are attached or incorporated by reference constitute and shall be referred to either as the Contract Documents or the Contract and all of said instruments, drawings, and documents taken together as a whole constitute the Contract between the parties hereto and they are as fully a part of this agreement as if they were set out verbatim and in full: • Invitation to Bid and Supporting Documents • Contract (this instrument), including all Exhibits, Schedules, Attachments, and Specifications. • All Proposal Response Documents • Certificate of Insurance The Contractor shall perform all items of Work covered and stipulated in the Specifications, Proposal, Contract and Special Provisions, together with any authorized alterations, Extra Work and Supplemental Agreements, all in accordance with the Plans. The Contractor shall furnish, unless otherwise provided in the Specifications and/or Special Provisions, all materials, implements, machinery, equipment, tools, supplies, transportation and labor necessary to perform and complete the Work. The Contractor shall be responsible for takingall steps reasonablynecessary to ascertain the nature and location of the Work, and the general and local conditions which can affect the Work or the cost of the work. Failure by the Contractor to do so will not relieve it from responsibility for successfully performing Work without additional expense to Owner. The Owner will not be responsible for any understanding or representations concerning conditions, unless such understanding or representations are expressly stated in the Contract. 2.5 SPECIAL WORK: Should any construction or conditions which are not thoroughly stipulated or set forth by the plans and specifications be anticipated on any proposed Project, Special Provisions for such Work may be prepared and attached hereto as Exhibit C, and shall be considered as part of the Specifications, the same as though contained fully therein. Should any Special Provision conflict with the Specifications, the Special Provision will govern. 2.6 PRE-CONSTRUCTION MEETING: Before any Work at the Site is started, a conference attended by the Project Engineer, Project Manager, Contractor, and others as appropriate, will be held to establish a working understanding among the parties as to the Work and to discuss the schedules for progress, milestones, and completion of Work, procedures for handling Shop Drawings, and other submittals, processing Applications for Payment, and maintaining required records. The Contractor may be asked to provide specific information as to labor, tools, supplies, equipment, materials and everything necessary for and required to do, perform and complete all the work described, drawn, set forth, shown and included in said Contract Documents. At this conference Owner and Contractor each shall designate, in writing, a specific individual to act as its representative with respect to the services and responsibilities under the Contract. Such individuals shall have the authority to transmit instructions, receive information, render decisions relative to the Contract, and otherwise act on behalf of each respective party. Page 411 of 553 7 2.7 CONTRACTOR’S UNDERSTANDING OF WORK The Contractor agrees that by careful examination it is satisfied as to the nature and location of the Work, the conformation of the ground, the character, quality, and quantity of the materials to be encountered, the character of equipment and facilities needed before beginning and for the Work, the general and local conditions, and all other matters, which can in any way affect the Work under the Contract. No oral agreement with any officer, agent, or employee of the Owner either before or after the execution of the Contract shall affect or change any of the terms or obligations contained in the Contract. 2.8 CONTRACTOR’S REPRESENTATION: The Contractor represents and warrants that it has the knowledge, ability, experience, and expertise to perform the Work competently in accordance with the Contract Documents. The Contractor represents and warrants the capacity of the Contractor's construction plant, personnel, and its ability to complete the Work by the Completion Date. 2.9 OTHER WORK: The Owner reserves the right to award other contracts in connection with the Project or other activities. The Contractor must be prepared to accept the presence, on or adjacent to the construction site, of work forces of other contractors, subcontractors, tenants, government agencies and municipal, public service or utility personnel. The Contractor shall cooperate with and afford other contractors reasonable opportunity for the introduction and storage of their materials and the execution of their Work, and shall coordinate its Work with theirs. If it becomes impossible to proceed with the Work in a manner that permits all activities to progress at a reasonable pace, the Project Engineer, or Project Manager, will select the course of action that appears to best serve the Owner. 2.10 NOTICES: Except for routine communications, written notices required under this Contract and all other correspondence between the Parties will be deemed received when hand-delivered or three (3) days after being sent by certified mail, return receipt requested (unless the Parties consent to electronic delivery). The address in the Proposal will be the Contractor’s address for the delivery of notices, unless modified by the Contractor by written notice at least three (3) business days prior to the change. Notices to the Owner shall be delivered to the Project Engineer, except as provided in the Contract Documents. 2.11 CONTRACTOR’S SIGNS: No signs with Contractor’s name, logo, telephone number, address or, (etc.), shall be placed on any pole, road, structure or other surface, unless approved in writing, and in advance of such placement, by the City. 2.12 PUBLICITY AND ADVERTISING: Neither the Contractor nor its Subcontractors or Suppliers shall include any reference to the Contract nor to Work performed hereunder in any advertising or public relations materials without first obtaining the written approval of the Project Engineer. All information shall be factual, and shall in no way imply that the Owner endorses the Contractor or its services or product. The Owner shall have the right to photograph, videotape, film or in any other manner record the progress of the Work at any time and to use such materials for any purpose. Article 3. PAYMENTS 3.1 MEASUREMENT OF WORK PERFORMED: The determination of the amount of Work acceptably completed under the terms of the Contract, or as directed by the Project Engineer, or Project Manager, in writing, will be made by the Project Engineer, or Project Manager, based on measurements taken by him or his agents. These measurements will be taken according to the United States standard measure. All surface and linear measurements will be taken horizontally unless otherwise shown on Plans or specified. Structures shall be measured to the neat lines as shown on the Plans, or as ordered in writing by the Project Manager. Other acceptable methods could include noting a percentage completed or referencing the project schedule by milestone. 3.2 PAYMENTS TO CONTRACTOR AND COMPLETION 3.2.1 General - Unless expressly provided otherwise, the Unit Prices shown in the Contractor’s Proposal include the cost of all labor, materials, supplies, equipment, tools, forms, services, utilities, royalties, fees, taxes, profit, overhead, and any other thing or expense, whether temporary or permanent, necessary to complete the Project in accordance with the Contract Documents. Items not shown on the Contract Documents that are necessary to construct the Project will be considered a part of the Project whether specified or not and no separate payment will be made for these items. 3.2.2 Determination of Amounts and Quantities – The Project Engineer, or Project Manager, or his or her designee shall verify determinations of amounts and quantities of Work performed. The method of measurement of pay items subject to Unit Prices will be as specified in the Special Conditions. 3.2.3 Monthly Estimates & Progress Payments a) Before Work commences, Owner and Contractor shall designate a day of the month by which Page 412 of 553 8 Invoices for Payment shall be due. On or before such day of each month after the Construction Work has commenced (but not earlier than the first day of such month), Owner shall submit to Contractor a “Periodic Estimate for Partial Payment” based on the Schedule of Values, and such other materials and information as may be required by the Agreement. No “Periodic Estimate for Partial Payment” except the Application for Final Payment shall be made for an amount less than $1,000.00. b) The Contractor shall submit signed estimates for progress payments on a monthly basis based on “Periodic Estimate for Partial Payment” for all Work completed to date. Estimates shall be prepared by the Owner no later than ten (10) days after the end of the month for Work subject to the application. Estimates shall be produced in a format reflecting the line items for which payment is requested according to the Unit Price Form in the Proposal and any applicable Change Order, shall be dated as of the actual date of submittal (or revised submittal, as applicable), and shall reflect the Work completed and the date to which Work has been completed. The Contractor will provide support documentation for all estimates, as requested. c) Each Periodic Estimate for Partial Payment shall constitute a representation and warranty of Contractor (whether or not specifically stated) that Contractor is not in default hereunder, the amounts requested in the Periodic Estimate for Partial Payment are due hereunder, after payment of the amounts requested in the Periodic Estimate for Partial Payment, the amount remaining to be paid under the Contract is sufficient to pay for the balance of the Work, the Work performed to date is in accordance with that contemplated by the Milestone Schedule (or specifying the portions thereof that are not), Contractor has no claims hereunder and has no request for changes in the Milestone Schedule or the Contract Sum not provided for in the Periodic Estimate for Partial Payment. Each Periodic Estimate for Partial Payment shall further constitute the representation and warranty of Contractor (whether or not specifically stated) that the percentage of the Work represented to have been done in each category provided on the Schedule of Values has, in fact, been completed as of the last day of the period for which such Periodic Estimate for Partial Payment has been submitted. The period covered by a Periodic Estimate for Partial Payment shall end not earlier than ten (10) days before the due date for the Periodic Estimate for Partial Payment, unless Contractor and Owner agree otherwise in writing. d) Each Periodic Estimate for Partial Payment shall set forth the status of all Proposed Changes, Change Directives, and Change Orders. e) Contractor shall promptly submit such additional information and documents as Owner or Project Professionals may reasonably request in support of the Periodic Estimate for Partial Payment. f) The signature on each application is a representation by the Contractor to the Owner that the Work has progressed to the point indicated, that the Work covered by the application is in accordance with the Contract Documents, that the money received as a result of the application will be used to discharge the Contractor’s obligations under the Contract, and that the Contractor is entitled to payment in the amount requested. g) By signing a Periodic Estimate for Partial Payment, the Contractor warrants that: (i) the title to the Work covered by the estimate of Work completed will pass to the Owner by incorporation into the completed Work; (ii) the Work covered by previous estimates of Work completed is free and clear of liens, claims, security interests or encumbrances, except for any interest created by retainage; and (iii) no Work covered by the estimate of Work completed is subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller or otherwise imposed by the Contractor or any other person or entity. h) The Contractor shall provide notice and reason, to the subcontractor or supplier and the Owner, why the subcontractor or supplier is not being paid. The Contractor shall not include in its Periodic Estimate for Partial Payment any billing for defective Work or for work performed by Subcontractors or Suppliers if it does not intend to pay the Subcontractors or Suppliers for such work. i) Applications may include the value of acceptable materials required in the construction which have been delivered on the site of the Work or to adjacent railway siding and for which acceptable provisions have been made for preservation and storage, providing the Contractor submits with its monthly estimate paid invoices in duplicate for the material for which payment is being requested. Material paid for by the Owner becomes the property of the Owner and, in the event of the default on the part of the Contractor, the Owner may use or cause to be used such materials in construction of the Work provided for in the Contract. Page 413 of 553 9 j) The authorized Owner representative(s) must approve the applications and estimates before progress payments will be made. The Owner will make payments within thirty (30) days after the receipt of a signed monthly estimate in proper form containing all required and requested information. Progress payments are payments on accounts and shall not be construed as acceptance by the Owner of any part of the Work. k) All progress payments, except for the Final Payment, shall be subject to correction on subsequent applications after the discovery of any error. Approval of an application for payment of Work completed or actual payment by the Owner shall not foreclose the right of the Owner to examine the books and records of the Contractor to determine the correctness and accuracy of any item. l) The Contractor shall make partial payments of the amount due and payable to each of its Subcontractors and Suppliers in the same manner as the Owner is required to pay the Contractor under this article. This provision shall not create any privity of contract between the Owner and any Subcontractor or Supplier, or make any Subcontractor or Supplier a third- party beneficiary of this Contract. 3.2.4 Retainage & Withheld Amounts a) The Owner will retain five percent (5%) of the total amount earned, including Change Orders, as indicated in each approved application until Final Payment. Securities are not acceptable to the Owner in lieu of retainage. b) If the Owner finds that satisfactory progress is being made in all phases of the Contract and work is more than 80% complete, it may, upon written request by the Contractor, authorize payment from the withheld percentage. Before such payment is made, the Owner shall determine that satisfactory and substantial reasons exist for the payment and shall require written approval from any Surety furnishing the Payment Bond or Performance Bond. c) The Owner may withhold, in addition to retained percentages from Contractor payments, such an amount or amounts from any progress payment or Final Payment as may be necessary to cover: • Claims for labor or materials furnished the Contractor or any Subcontractor or reasonable evidence indicating probable filing of such claims; • Failure of Contractor to carry out the Work in accordance with the Contract Documents • Failure of the Contractor to make proper payment to Subcontractors or Suppliers; • A reasonable doubt that the Contract can be completed for the balance then unpaid; • Evidence of damage to another contractor, utility, or private property; • Claims filed in connection with the Work or reasonable evidence indicating probable filing of claims. • Uncorrected defective Work or guarantees that have not been met; • Failure of the Contractor to submit cost breakdowns, schedules, reports and other information required under the Contract; • Persistent failure to carry out the Work according to the Contract; • Failure to keep a superintendent on the Site during Construction Work. • Reasonable evidence that the Work will not be completed within the Contract Time and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; • Any tax delinquency, unpaid fee, or other unpaid financial obligation of the Contractor owed to the Owner; • Any request that the Owner pay additional compensation to another contractor as a result of delays in the performance of that contractor’s work caused by the Contractor’s acts or omissions; and • Any other amounts that the Owner is authorized to withhold under the Contract Documents. If the reason for withholding is removed, the Owner will make payment of the withheld sums with the next regular progress payment unless another basis for withholding exists d) Execution of the Contract by the Contractor shall constitute a waiver by the Contractor to claim any right of payment of interest upon any funds retained or withheld by the Owner pursuant to these General Conditions or C.R.S. § 38-26-107. 3.2.5 Substantial Completion a) When the Contractor considers the entire work ready for its intended use, the Contractor shall Page 414 of 553 10 notify the Project Engineer, or Project Manager, in writing that the entire Work is substantially complete, except for minor items specifically listed by Contractor as incomplete (the Contractor’s punch list), and request that the Project Engineer, or Project Manager, issue a Notice of Substantial Completion. b) Within seven (7) days after the receipt of such notice, the Contractor, Engineer, or Project Manager and any other appropriate Owner representatives shall inspect the Work to determine the status of completion and the Contractor’s punch list. • If the Project Engineer, or Project Manager, does not consider the Work substantially complete, the inspection will cease and the Project Engineer, or Project Manager, will notify the Contractor in writing giving the reasons for denial of the Notice of Substantial Completion and the Contractor will proceed with the Work. All costs associated with such premature inspection, including any compensation for additional design services and the Owner’s additional costs, shall be deducted from any payment due to the Contractor. • If the Project Engineer, or Project Manager, considers the Work substantially complete, the Project Engineer, or Project Manager, will prepare and deliver to the contractor a Notice of Substantial Completion. The Project Engineer, or Project Manager, shall attach to the notice a punch list of items to be completed or corrected before Final Acceptance. Failure to include any items on the punch list shall not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. 3.2.6 Right of Early Occupancy or Use a) The Owner shall have the right to take early possession of and to use any completed or partially completed portions of the Work, even if Substantial Completion of the Work has not occurred and even if the Work has not been fully accepted. Such possession and early occupancy shall not constitute Substantial Completion of such portions of the Work nor affect the Owner’s right to assess liquidated damages. b) If the Owner elects to take possession of and to use any completed or partially completed portions of the Work prior to Substantial Completion, an inspection shall be made by the Contractor and the Project Engineer, or Project Manager. Based upon such inspection, the Project Engineer, or Project Manager, will attempt to list all incomplete Work items observed, and shall provide the Contractor with such list. However, the absence of an item from the list shall not relieve the Contractor of responsibility to perform all of the Work. Any and all areas so occupied will be subject to a final inspection prior to Final Acceptance and the issuance of Certificate of Occupancy, if required. c) At the time of such inspection, the Parties shall also negotiate the responsibilities of the Owner and the Contractor for security, maintenance, heat, utilities, property insurance premiums, and damage to the Work. These negotiations are subject to the final approval of the Owner. d) If the Contractor believes there will be an additional cost or delay associated with completion of the Work while the Owner occupies the Work in whole or in part under this section, the Contractor shall advise the Project Engineer, or Project Manager, by Contractor Change Request of all such costs and delays at or before the time of such inspection. If the Contractor fails or refuses to furnish such cost or delay information, or fails or refuses to comply with the Contractor Change Request procedure, the Contractor shall be deemed to have waived any and all rights to assert any claim for such additional cost or delay. 3.2.7 Final Acceptance a) When the Work specified in the Contract (including all punch list items) is completed and the final cleanup has been performed, the Contractor shall notify the Project Engineer, or Project Manager, that all Work under the Contract has been completed and the Project Engineer, or Project Manager, shall, within seven (7) days after such notice, make the final inspection. b) If the Project Engineer, or Project Manager, finds that the Project has been completed according to the Contract requirements and that all parts of the Work are in good condition and in working order, the Owner, upon the recommendation of the Project Engineer, or Project Manager, shall issue a written Notice of Final Acceptance. Any Notice of Final Acceptance issued orally or without proper Owner authorization is void. c) If the Project Engineer, or Project Manager, finds that the Project has not been completed according to the Contract requirements and that not all parts of the Work are in good condition and in working order, the Project Engineer, or Project Manager, shall compile a punch list of corrective or replacement Work to be completed by the Contractor and Contract obligations yet to be satisfied that the Contractor shall complete or fulfill to the Project Page 415 of 553 11 Engineer, or Project Manager’s satisfaction, at the Contractor’s expense, as a condition precedent to the issuance of a Notice of Final Acceptance. 3.2.8 Final Settlement & Final Payment a) After Final Acceptance, the Project Engineer, Contractor, or other person designated by the Owner, as appropriate, will prepare a final estimate of the total value of all Work performed under the Contract. This will include all extra Work properly authorized and performed. All prior estimates and payments shall be subject to correction in the final estimate and payment. In the absence of error or fraud, all estimates, when approved by the Owner, shall be conclusive evidence of the Work performed and materials furnished. b) The Owner shall not authorize final payment until all items on the punch list have been completed, a Notice of Final Acceptance is issued, and the Notice of Final Settlement has been published. If the Work is substantially completed, but Final Acceptance is prevented by the unavailability of materials, or other causes beyond the control of the Contractor, and if consistent with any applicable bond, the Owner, in its sole discretion, may release to the Contractor all amounts due except for a retainage of two (2) times the cost of completing the unfinished Work as estimated by the Owner. c) Before the Owner will advertise final settlement, the Contractor shall demonstrate to the operating personnel of the Owner the proper operation and maintenance of all equipment and systems, and deliver to the Project Engineer, or Project Manager: • All guarantees and warranties; • Bound sets of required operations and maintenance manuals and instructions as required by the Contract Documents; • Record Documents required by the Contract Documents; • Satisfactory evidence that all payroll, material bills, taxes, and other indebtedness connected with the Work have been paid or otherwise satisfied; • A complete and final, unconditional waiver or release of any and all lien and claim rights from each Subcontractor, materialman, Supplier, manufacturer, and dealer for all labor, equipment and material used or furnished by each on the Work; • Consent of the Surety to final payment; • All submittals required by the Contract Documents; and • Any other documents required to be furnished by the Contract Documents d) The Work shall be advertised (Notice of Contractor’s Settlement) in accordance with C.R.S. § 38-26-107. This statute governs the maintenance and enforcement of claims for payment against the Project by Subcontractors, Suppliers and certain others. Final payment and settlement shall be made only after the Contractor has completed the foregoing requirements, and the Owner is satisfied that no claims by Subcontractors or Suppliers have been filed or remain pending. e) If any unpaid claim for labor, materials, rental machinery, tools, supplies, or equipment is filed prior to the date set for final settlement, the Owner shall withhold from payments to the Contractor sufficient funds to ensure the payment of such claim, until the same shall have been paid or withdrawn. Such payment or withdrawal shall be evidenced by filing with the Project Engineer, or Project Manager, an unconditional receipt in full or an order for withdrawal signed by the claimant or its duly authorized agent or assignee. The Owner will withhold from payment any funds it may be required by law to withhold or that it may in the determination of the Owner be entitled to withhold, and final payment will not be made until, in the sole determination of the Owner, all conditions of the Contract and of law have been met. f) If there are outstanding claims against the Contractor or its Subcontractors or for any other reason the Contractor is not able to fulfill one or more of the requirements of this section, the Owner may, at its sole discretion, waive the requirement, provided the Surety agrees to the Owner making final settlement without in any way lessening or modifying the Surety’s liability under such Bonds. g) If any overpayment was made by the Owner at any time, the Contractor shall immediately return all overpaid amounts. h) At the time of settlement, there shall be deducted from the final estimate (i) all previous payments made to the Contractor under the Contract, (ii) all amounts chargeable to the Contractor, (iii) all liquidated damages due the Owner; (iv) all unpaid taxes due and payable to the Owner; and (v) all damages and all other costs, expenses and charges properly chargeable to the Contractor under the terms of the Contract. Page 416 of 553 12 i) Subject to delays allowed by Colorado law and these General Conditions, the Owner shall make Final Payment after Final Acceptance, including the release of all retainage and withheld amounts, except as authorized by the Contract Documents. Final Payment shall constitute complete payment for all Work, labor, materials, equipment, and miscellaneous items in the Project. j) At the time of delivery to the Contractor of the final payment, the Contractor shall execute and give to the Owner a final receipt for the same. k) The acceptance of final payment shall constitute a waiver of all Claims by the Contractor except those previously made in accordance with these General Conditions which have been separately identified by the Contractor as unsettled in the final payment application, and which the Owner agrees in writing may be set over for resolution after final payment. l) All provisions of these Contract Documents, including without limitation those establishing obligations and procedures, shall remain in full force and effect notwithstanding the making or acceptance of final payment. 3.3 APPROPRIATION OF FUNDS: At present, the amount set forth in the Contract has been appropriated for the project. Notwithstanding anything contained in this Agreement to the contrary, the parties understand and acknowledge that each party is subject to Article X, § 20 of the Colorado Constitution (“TABOR”). The parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, notwithstanding anything in the Contract to the contrary, all payment obligations of the Owner are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the Owner’s current fiscal period ending upon the next succeeding December 31. Financial obligations of the Owner payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of the Owner and applicable law. Upon the failure to appropriate such funds, the Contract shall be deemed terminated. The Owner shall immediately notify the Contractor or its assignee of such occurrence in the event of such termination. 3.4 PAYMENT FOR INCREASED OR DECREASED QUANTITIES: When alterations in the Plans or quantities of Work not requiring Supplemental Agreements, as provided for above, are ordered and performed, the Contractor shall accept payment in full at the Contract unit price for the actual quantities of Work done. No allowance will be made for lost profits. Increased or decreased Work involving Supplemental Agreements will be paid for as stipulated in such agreements. 3.5 PAYMENT FOR OMITTED ITEMS: For any item omitted from the work under the provisions of Section 1.5, the Owner will pay the Contractor a fair and equitable amount for costs incurred directly related to such item prior to the date of the Owner's order to omit the item. No allowance will be made for lost profits in reimbursements to the Contractor for omitted items of Work. Acceptable materials ordered by the Contractor or delivered to the Work site prior to the date of cancellation, alteration, or suspension of the Work by order of the Project Engineer, or Project Manager, will be paid for at the actual cost to the Contractor and shall thereupon become the property of the Owner. The Contractor shall immediately submit certified statements covering all money expended in preparation for any omitted item, and he shall be reimbursed for any money expended in preparation for Work on any omitted item when such preparation has no value to the remaining items of the Contract, or for a proportionate amount based on the total Contract price over which such preparation would ordinarily be distributed when other items are included in such preparation. 3.6 EXTRA AND FORCE ACCOUNT WORK: Extra Work, for which no price is provided in the Proposal, shall be covered by a Supplemental Agreement which could be an addendum (additional work requested), amendment (change the terms of the agreement, or change order (change the specifications of original work) to be signed by both parties before such Work is commenced. Extra Work will be paid for either at a lump sum, or unit prices agreed upon, or on a Force Account basis. For all labor, teams, and foremen in direct charge of the specific operations accomplished on a Force Account basis, the Contractor shall receive the current local rate of wage, to be agreed upon before starting the Work, to which shall be added fifteen (15) percent of the sum thereof to cover cost of supervision, the rental of small tools and ordinary equipment, additional Bond, Unemployment Insurance, all overhead and any other costs not specifically stated. In addition, the Contractor shall be paid a sum equal to the Worker's Compensation insurance premium, the actual costs of Social Security taxes computed on the base rate for the class of Work involved for the actual amount of the payroll, and the public liability and property damage insurance premium; provided, however, that nothing in this Section will change the legal status of the relationship between the Parties to this Agreement. For all materials furnished and used by the Contractor on a Force Account basis, he shall receive the actual cost of such materials, including transportation charges as shown by original receipted bills, to which shall be added fifteen (15) percent of said actual cost. Page 417 of 553 13 For machine power tools or equipment, including fuel and lubricant, used on Force Account Work, payment for the same will be made on a rental basis at the rate agreed upon between the Contractor and the Project Engineer, or Project Manager, to which no rate or percentage shall be added. The compensation as herein provided shall be received by the Contractor as payment for Extra Work done on a Force Account basis. The Contractor shall make no claim for Force Account Work, unless performed on written order and in accordance therewith. The Contractor's representative and the Inspector shall compare records of Extra Work done on a Force Account basis at theend of eachday. Copies of these records shall be made upon suitable forms provided for this purpose, and signed by both the Inspector and the Contractor's representative, one copy being forwarded to the Project Engineer, or Project Manager, and one copy to the Contractor. All claims for Extra Work done on a Force Account basis shall be submitted each month to the Project Engineer, or Project Manager, by the Contractor upon certified statements, or upon forms furnished by the Owner. Work performed prior to a written order by the Project Engineer, or Project Manager, will not be paid for. 3.7 PARTIAL PAYMENTS: The Project Engineer, or Project Manager, will make an estimate once each month, as the Work progresses, of the value of the Work performed and materials completed and in-place or delivered to the site in accordance with the Contract. On request of the Project Engineer, or Project Manager, the Contractor shall furnish a detailed estimate of the total Contract price showing the amount included therein for each category of Work, to provide a basis for determining the amount of progress payments. The market value of materials and equipment delivered to the construction site but not yet incorporated in the Work may, at the discretion of the Owner, be included with a progress payment. However, payment by the Owner for such materials and equipment shall not relieve the Contractor of the responsibility for the care of such materials and equipment because the Owner shall not be deemed to have assumed ownership of the materials or equipment until these are incorporated into the completed and accepted Work. Such increases to progress payments, if authorized, are intended only to reduce the cost of doing business with the Owner. The Owner, when awarding a contract exceeding one hundred fifty thousand dollars ($150,000) for the construction, alteration, or repair of any highway, public building, public work, or public improvement, structure, or system, including real property as defined in section 24-30-1301 (15), shall authorize partial payments of the amount due under such contract at the end of each calendar month, or as soon thereafter as practicable, to the contractor, if the contractor is satisfactorily performing the contract. The Owner shall pay at least ninety-five percent of the calculated value of completed work. The withheld percentage of the contract price of any contracted work, improvement, or construction may be retained until the contract is completed satisfactorily and finally accepted by the Owner. Where the Contract price does not exceed such amount, from the total of the estimate so ascertained will be deducted an amount equivalent to five (5) percent of the whole, to be retained by the Owner until acceptance of the entire Contract, and the balance of the sum equivalent to ninety (90) percent of the whole shall be certified by the Project Engineer, or Project Manager, for payment. In addition, Owner shall retain from all progress payments an amount equal to all statutory claims filed against Contractor. No partial payments except final payment will be made for a sum less than $l,000.00. The estimates will be approximate only, and all partial or monthly estimates and payments shall be subject to correction in the estimate and payment rendered following discovery of an error in any previous estimates or payments. Should any defective Work or material be discovered, or should a reasonable doubt arise as to the integrity of any part of the Work completed previous to the final acceptance and payment, there will be deducted from the first payment rendered after the discovery of such Work an amount equal in value to the defective or questioned Work, and this Work will not be included in a subsequent estimate or payment until the defects have been remedied or the causes for doubt removed. 3.8 TAXES / DIRECT PURCHASE OPTION 3.8.1 Sales and Use Tax - Contractor shall only include sales and use tax levied by the City of Englewood and Arapahoe County on materials in its Schedules of Values, and Subcontractors and Suppliers shall only include such amounts in their Bids. The Owner will furnish to Contractor, on request by the Contractor, the necessary exemption certificates to aid the Contractor in the recovery or avoidance of any such taxes paid or otherwise due to be paid by Contractor for materials and equipment built into the Project, or to support the Contractor's failure to pay such taxes, as the case may be. 3.8.2 Tax Exemption - In accordance with Colorado Revised Statutes Sections 39-26-114 and 39-26-203, and the related regulation of the Department of Revenue, State of Colorado, the Contractor shall apply to the Department of Revenue, and secure prior to commencing the Project an exemption certificate, which when issued by the Department of Revenue will enable the Contractor to purchase for the Project all materials free of State Sales and Use Taxes and Regional Transportation District (RTD) Tax, provided that any building permit fee shall be included in any Proposal with respect to the Project. Further, if awarded the Project, no Englewood sales and/or use tax shall be included in any billing with respect to the Project. This provision shall apply to all contractors, subcontractors and material suppliers. When Englewood sales tax is paid to licensed Englewood vendors for materials, which become part of the Project by a Contractor, the City of Englewood will refund that tax to the Contractor upon receipt of an application from the Contractor at the conclusion of the Project. Accompanying the application must be the material receipt(s) displaying a description of the items(s) purchased, date of purchase, amount of purchase, tax paid and any Page 418 of 553 14 other documentation and information which may be required by the Owner to substantiate the payment and help validate a refund. 3.8.3 Direct Purchase Option - At Owner’s option, Contractor and Owner shall cooperate with one another so that Owner may purchase or contract directly for such items or Contractor and Owner shall make other appropriate arrangements as necessary to avoid incurring taxes, fees, and other costs. In such circumstances, Contractor shall act as agent for Owner in effecting such purchasing and contracting, Contractor shall have all the responsibilities as to such portions of the Work as Contractor otherwise has with respect to the Work. Contractor shall be responsible to expedite, arrange for and receive delivery of all such purchases, regardless of whether made by Contractor or Owner, and shall promptly examine deliveries to ascertain whether or not they comply with the requirements of the Contract Documents. Contractor shall promptly notify the Owner and Architect of any delay in the delivery of such purchases, any failure to receive such purchases as needed and any failure of such purchases to comply with the Contract Documents 3.8.4 Direct Supplier Payment - To the extent that Owner makes any payments directly to Suppliers, such payments shall be credited against the payments due from Owner to Contractor hereunder and shown, as incurred, on all Applications for Payment. Owner shall promptly notify Contractor and Architect, on serially numbered forms, of any amount paid directly for materials, any discounts obtained by Owner, and the amount of the credit due to Owner. 3.8.5 Tax Payment - The Contractor shall pay all sales and use taxes required to be paid, shall maintain such records in respect to his Work, which shall be separate and distinct from all other records maintained by the Contractor and shall be available for inspection by the Owner at any and all reasonable times, and shall furnish the Owner with such data, as may be necessary to enable the Owner to obtain any refunds of such taxes which may be available to the Owner under the laws, ordinances, rules or regulations applicable to such taxes. The Contractor shall require each of his Subcontractors to pay all sales and use taxes required to be paid and to maintain such records and furnish the Contractor with such data as may be necessary to enable the Owner to obtain a refund of the taxes paid by such subcontractors. The Contractors or Subcontractors who purchase materials, which become part of the Project, from governmental entities, which do not honor the exemption and thereby pay sales tax will not be reimbursed for that tax payment by the City of Englewood. The Contractor shall bear the risk of any added or increased taxes occurring during the performance of the Work. A change in taxes shall under no circumstances entitle the Contractor to an adjustment under the Contract. 3.8.6 Discounts - All discounts for prompt payment obtained by Contractor shall accrue to Owner to the extent they apply to Costs of Work payable by Owner (whether paid directly or reimbursed to Contractor). To the extent that such discounts apply to costs paid by Contractor without reimbursement, such discounts shall accrue to Contractor. All trade discounts, rebates and refunds, and all returns from sale of surplus or salvage materials and equipment, shall accrue to the benefit of Owner, and the Contractor’s agreements with others shall provide for such credits to be applied either through credits from Subcontractors and Suppliers passed through to Owner by Contractor or by payment directly to Owner. 3.8.7 Adjustments - The Contract Sum may be adjusted by Agreed Change. Contractor is obligated to pay out of its own funds any overruns of the Contract Sum not approved by Agreed Change as provided in Article 6. 3.9 LIENS 3.9.1 Title - Nothing in this contract shall be construed as vesting in Contractor any right of property in any equipment, materials, supplies, and other items provided under this contract after they have been installed in, incorporated into, attached to, or affixed to, the work or the work site. All such equipment, materials, supplies, and other items shall, upon being so installed, incorporated, attached or affixed, become the property of Owner, but suchtitle shall not release Contractor from its duty to insure and protect the Work in accordance with the requirements of thiscontract. 3.9.2 Waivers of Lien - Contractor shall, from time to time at Owner's request and in any event prior to final payment, furnish to Owner such receipts, releases, affidavits, certificates, and other evidence as may be necessary to establish, to the reasonable satisfaction of Owner, that no lien against the work or the public funds held by Owner exists in favor of any person whatsoever for or by reason of any equipment, material, supplies, or other item furnished, labor performed, or other thing done in connection with the work or this contract ("Lien") and that no right to file any Lien exists in favor of any person whatsoever. 3.9.3 Removal of Liens - If at any time any notice of any Lien is filed, then Contractor shall, promptly and without charge, discharge, remove, or otherwise dispose of such Lien. Until such discharge, removal, or Page 419 of 553 15 disposition, Owner shall have the right to retain from any money payable hereunder an amount that Owner, in its sole judgment, deems necessary to satisfy such Lien and to pay the costs and expenses, including attorneys' fees and administrative expenses, of any actions brought in connection therewith or by reason thereof. 3.9.4 Protection of Owner Only - This section shall not operate to relieve Contractor's surety or sureties from any of their obligations under the Bonds, nor shall it be deemed to vest any right, interest, or entitlement in any subcontractor or supplier. Owner's retention of funds pursuant to this section shall be deemed solely for the protection of itsown interests pendingremoval of such Liens by Contractor, and Owner shall have no obligation to apply such funds to such removal but may, nevertheless, do so where Owner's interests would thereby be served. 3.10 DEDUCTIONS 3.10.1 Owner's Right to Withhold - Notwithstanding any other provision of this contract and without prejudice to any of Owner's other rights or remedies, Owner shall have the right at any time or times, whether before or after approval of any Pay Request, to deduct and withhold from any Progress or final payment that may be or become due under this contract such amount as may reasonably appear necessary to compensate Owner for any actual or prospective loss due to: a) Work that is defective, damaged, flawed, unsuitable, nonconforming, or incomplete; b) Damage for which Contractor is liable under this contract; c) State or local sales, use, or excise taxes from which Owner is exempt; d) Liens or claims of Lien regardless of merit; e) Claims of subcontractors, suppliers, or other persons regardless of merit; f) Delay in the progress or completion of the work; g) Inability of Contractor to complete the work; h) Failure of Contractor to properly complete or document any Pay Request; i) Any other failure of Contractor to perform any of its obligations under this contract; or j) The cost to Owner, including attorneys' fees and administrative costs, of correcting any of the aforesaid matters or exercising any one or more of Owner's remedies set forth in Section 3.2 of this contract. 3.10.2 Use of Withheld Funds - Owner shall be entitled to retain any and all amounts withheld pursuant to subsection 7.12 above until Contractor shall have either performed the obligations in question or furnished security for such performance satisfactory to Owner. Owner shall be entitled to apply any money withheld or any other money due Contractor under this contract to reimburse itself for any and all costs, expenses, losses, damages, liabilities, suits, judgments, awards, attorneys' fees and administrative expenses incurred, suffered, or sustained by Owner and chargeable to Contractor under this contract. Article 4. COMPLETION, TIME AND DELAYS IN CONSTRUCTION 4.1 DELAYS: No payment, compensation, damages, or adjustment of any kind, other than extension of the contract time if received in writing by Owner shall be made to, or claimed by, Contractor because of hindrances or delays from any cause in the commencement, prosecution, or completion of the work, whether caused by Owner or any other party and whether avoidable or unavoidable other than as set forth in a change order described fully above. 4.2 CONSTRUCTION SCHEDULE: Within the time specified in the Request for Bids, the Contractor shall submit to the Owner a proposed Construction Schedule using Primavera, MS Project or other comparable Critical Path Method (CPM) scheduling software. The Construction Schedule must include all Work activities to be performed under the Contract including any work to be performed by Subcontractors and must account for all Reasonably Predictable Weather Delays. All activities should be logically tied with a critical path clearly identified. The schedule must have sufficient detail to adequately plan and manage the Work. Contractual and key milestones are to be identified. The Construction Schedule must include a brief narrative including: a) A description of the schedule critical path (series of tasks that define the overall project schedule); b) Identification of non-work days such as weekends or holidays; c) A table showing calculated Reasonably Predictable Weather Days (including drying days for each month); and d) List of assumptions used while developing the Construction Schedule. Page 420 of 553 16 It will be presumed that the Contractor, at the time of Bid, took into account the number of days which might be unavailable for Work as a result of Reasonably Predictable Weather Delays during the Contract Time. The Contractor shall calculate the average number of lost weather days for each month of the Construction Schedule as defined in section 4.12.4 below. On a monthly basis with each pay application and as requested by the Project Engineer, or Project Manager, the Contractor shall update the Construction Schedule and provide a summary report of progress on the various parts of the Work, including the status, rate of progress, estimated completion date, and cause of delay, if any. This report shall not constitute a request or approval for any change in the Contract Time. Work shall normally not be done on Saturdays, Sundays, Owner observed holidays, or outside of the daytime working hours (7:00 a.m. to 7:00 p.m.), except for such work as may be necessary for proper care, maintenance, and protection of Work already done, or in cases when the Work would be endangered or when hazard to life or property would result. No work shall be done on Sundays, holidays, or at night outside of usual daytime working hours, except in emergencies beyond the Contractor’s control, whereby the work would be endangered, or hazards to life or property would result. If the Contractor believes it may be necessary to work on Saturdays, Sundays, holidays, or at night, the Contractor shall make prior arrangements with the Project Engineer, or Project Manager, and receive written approval at least forty-eight (48) hours before such work period so that proper inspection and engineering services can be provided. Such approval may be revoked by the Project Engineer, or Project Manager, if the Contractor fails to maintain adequate equipment and lighting at night for the proper prosecution, control and inspection of the Work. If Work is done outside of approved working hours, and the Project Engineer, or Project Manager, has not assigned Inspectors to the Work, the Work performed during those periods of time may be declared defective solely on the grounds that it was not properly inspected. 4.3 SUBCONTRACTING OR ASSIGNING OF CONTRACT: No Contractual relationship will be recognized under the Contract other than the Contractual relationship between the Owner and Contractor. Contractor shall not, at any time, assign any interest in this Agreement or the other Contract Documents to any person or entity without the prior written consent of the Owner specifically including, but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law). Any attempted assignment which is not in compliance with the terms hereof shall be null and void. Unless specifically stated to the contrary in any written consent to an Assignment, no Assignment will release or discharge the Assignor from any duty or responsibility under the Contract Documents. 4.4 COMMENCEMENT OF WORK: The Contractor agrees to undertake the performance of the work under this Contract within ten (10) days from being notified to commence work by the Director of Public Works, and agrees to fully complete said work within the schedule designated in the contract plus such extension or extensions of time as may be granted by the Director of Public Works in accordance with the provisions of the Contract Documents and Specifications. The Contractor shall notify the Project Engineer, or Project Manager, at least 48 hours in advance of the time he intends to begin Work. The Contractor shall conduct Work in such a manner and with sufficient materials, equipment, and labor as is considered necessary to insure its completion within the time limit set forth in the Contract. Should the prosecution of Work for any reason be discontinued by the Contractor, with the consent of the Project Engineer, or Project Manager, he shall notify the Project Engineer, or Project Manager, at least 48 hours in advance of resuming operations. 4.5 LIMITATION OF OPERATIONS: Each item of Work shall be performed to completion without delay and in no instance will the Contractor be permitted to transfer his force from uncompleted Work to new Work without the permission of the Project Engineer, or Project Manager. The Contractor shall not open up Work to the prejudice of Work alreadystarted. 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 therequired Page 421 of 553 17 progress schedule. The Contractor shall perform the Work in accordance with the latest approved progress Schedule. In the event that the progress of items along the critical path in the project schedule is delayed, the Contractor shall revise his planning to include additional forces, equipment, shifts or hours as necessary to meet the time or times of completion specified in this Contract. Additional costs resulting therefrom will be borne by the Contractor. The Contractor shall make such changes when his progress at any check period does not meet at least one of the following two tests: a. The percentage of dollar value of completed Work with respect to the total amount of the Contract is within ten percentage points of the percentage of the Contract time elapsed,or; b. The percentage of dollar value of completed Work is within ten percentage points of the dollar value which should have been performed according to the Contractors own network analysis previously approved by the Project Engineer, or Project Manager. Failure of the Contractor to comply with the requirements under this Section will be grounds for determination that the Contractor is not performing the Work with such diligence as will ensure completion within the time of completion specified in this Contract. Upon such determination, the Owner may terminate the Contractor's right to proceed with the Work, or any separate part thereof, in accordance with the provisions contained herein. The Owner may extend thetime 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 arecareful andcompetent, and the Project Engineer, or Project Manager, may demand the dismissal of any person or persons employed by the Contractor in, about, or upon the Work who shall engage in acts of misconduct (as defined in the Federal Contractor Misconduct Database) or be incompetent or negligent in the proper performance of his or her duties, or neglects or refuses to comply with the directions given, and such person or persons shall not be employed again thereon without the written consent of the Project Engineer, or Project Manager. Should the Contractor continue to employ, or again employ such person or persons, the Project Engineer, or Project Manager, may withhold all payments which are or may become due, or the Project Engineer, or Project Manager, may suspend the Work until such orders are complied with. In the employment of labor, preference shall be given, other conditions being equal, to residents of the area wherein the Work is being done, but no other preference or discrimination among citizens of the United States shall be made, except as may be required by special labor provisions. The Contractor shall furnish such equipment as is considered necessary for the prosecution of the Work in an acceptable manner and at a satisfactory rate of progress. All equipment, tools, and machinery used for handling materials and executing any part of the Work shall be maintained in a satisfactory working condition. Equipment used on any portion of the Work shall be such that no injury to the workers, roadways, adjacent property, or other objects will result from its use. The Contract may be terminated if the Contractor fails to provide adequate equipment for the Work. 4.8 SUSPENSION OF WORK: The Owner may suspend all or any part of the Work by written order signed by the Project Engineer, or Project Manager, without invalidating the Contract, for such period or periods as it may deem necessary due to: a) Any reason for the convenience of the Owner, with or without cause, including but not limited to the availability of funding for the Project; b) An order from a state or federal court or administrative agency; or c) The Contractor’s failure to perform any provision of the Contract Documents. Upon receipt from the Project Engineer, or Project Manager, of an order to suspend the Work, the Contractor shall, within three (3) days, submit a suspension plan to the Project Engineer, or Project Manager, for acceptance. The plan shall describe how the Contractor will store all materials in a manner so that the materials will not become an obstruction or become damaged in any way, what cost effective methods it will employ to prevent damage to or deterioration of the Work and otherwise protect the Work, how suitable drainage will be provided, what temporary structures will be necessary, and how the Contractor will prepare for resuming the Work for the least possible remobilization cost. After the plan is accepted, the Contractor shall implement it in accordance with instructions received from the Project Engineer, or Project Manager. Under no circumstance shall a suspension absolve the Contractor or the Contractor’s sureties of the duties and responsibilities guaranteed under the Bonds. The Contractor shall again proceed with the Work when it is ordered to do so in writing by the Project Engineer, or Project Manager. Upon the resumption of the Work for all suspensions not involving the Contractor’s failure to perform in accord with the Contract Documents, adjustment of Contract Time, if appropriate, will be made in accordance with these General Conditions. Adjustment of the Contract Price, if any, will be within the Owner’s sole discretion and shall not in any Page 422 of 553 18 event, exceed the cost of the extra work resulting from such suspension. Such cost, if any, shall be determined in accordance with these General Conditions. 4.9 SUSPENSION OF WORK FOR OWNER’S CONVENIENCE: Upon decision to suspend the Work or any part of the Work for the Owner’s convenience, the order of suspension will extend the Contract Time for the number of days of such suspension if all Work is suspended. If the suspension applies to only a part of the Work, a time extension will not be authorized until the partial suspension has run and its effect on the entire Contract can be evaluated. In all cases of suspension for the Owner’s convenience, the costs to the Contractor will be determined in accordance with these General Conditions. Upon order of such suspension, the Contractor shall immediately begin to perform in a manner designed to minimize the costs of protecting the Work and maintaining it in a condition which will permit its resumption for the least possible remobilization cost. 4.10 SUSPENSION OF WORK DUE TO ORDER OF CITY, COUNTY, STATE or FEDERAL COURT OR AGENCY: If the suspension of work is due to an order from a City, County, State or Federal court, the order of suspension will identify the court or agency order which caused the suspension and will extend the Contract by the amount of time specified by the court or agency order. If the order causes suspension for an indefinite period of time and as a result a time extension cannot be established, the order of suspension will also be for an indefinite period of time. If the order is issued because of acts or omissions of the Contractor, the Contractor shall not be entitled to a time extension or payment for any additional costs it incurs. 4.11 SUSPENSION OF WORK RESULTING FROM CONTRACTOR’S FAILURE TO PERFORM: If a suspension order results from the Contractor’s failure to satisfactorily perform any of the provisions of the Contract, including but not limited to faulty workmanship, safety concerns, improper or inadequate manpower, equipment, supplies or supervision, or failure to perform the Work in a timely manner, the order will identify the reason, or reasons, for the order. In this circumstance, no time extension will be authorized for the Contractor and any costs to the Contractor resulting from such suspension order will not be reimbursed by the Owner. A suspension order issued under these circumstances will remain in effect until the Contractor has removed or corrected the grounds for the suspension, if applicable, or the order requiring such suspension expires by its terms. 4.12 CONTRACT TIME: Work shall be fully completed in a satisfactory and acceptable manner by the Completion Date as modified by Change Orders that may extend the project schedule due to excusable delays. 4.12.1 Delays - Delay claims fall into three categories: non-excusable; excusable/non-compensable; and excusable/compensable. Any payment for compensable delays or the granting of time extensions for excusable delays requires a properly executed Change Order. The Contractor agrees that time extensions shall constitute full compensation for any excusable/non-compensable delay, and the Contractor shall make no claim for monetary damages relating to any non-excusable delay or any excusable/non- compensable delay. 4.12.2 Non-Excusable Delay - Non-excusable delay is caused by factors within the Contractor’s reasonable control or by the Contractor’s fault. No additional time or additional compensation is allowed for non- excusable delays. Typical non-excusable delays, without limitation, include: a) Late submittal of Shop Drawings; b) Late procurement of materials or equipment; c) Insufficient personnel; d) Unqualified personnel; e) Inadequate coordination of Subcontractors or other contractors; f) Subcontractor delays; g) Late response to Owner, Project Engineer, or Project Manager, or Inspector inquiries; h) Failure to comply with the requirements of the Contract Documents; i) Construction not conforming to contract requirements making repeated re-working necessary; j) Delays resulting from the Contractor’s failure to take reasonable actions to mitigate or prevent further delays relating to any excusable delay; k) Failure to continue performance during the determination of any Contractor Change Request or claim; and l) Weather delays exceeding the Reasonably Predictable Weather Days identified on the approved Construction Schedule, unless approved as unusually severe weather days. 4.12.3 Excusable Delay a. Excusable/Non-compensable delay is caused by factors beyond the Contractor’s reasonable control, but is not the result of the Owner’s actions or omissions. An excusable/non-compensable delay entitles the Contractor to an extension of time but no additional compensation for the cost of the delay. Page 423 of 553 19 Typical excusable/non-compensable delays, without limitation, include strikes, lockouts, natural fires not caused by Contractor’s acts or omissions, unusual delay in transportation, unavoidable casualties, legal or administrative proceedings affecting the Work or the Project, and other causes beyond the Contractor’s control. b. Excusable/Compensable delay is caused by the Owner’s failure to meet an obligation within its control stated or implied in the Contract, but shall not include any action, omission, or exercise of any right under the Contract. If the Project Engineer, or Project Manager, considers a delay as compensable, the Owner will grant a time extension or reimburse the Contractor for the increased total cost of performance caused by the delay, or both, as appropriate. Typical excusable/compensable delays, without limitation, include: 1) Late approval of Shop Drawings and samples; 2) Delays in answers to field inquiries made by the Contractor; 3) Interference with the Contractor during construction: 4) Owner-caused schedule changes; 5) Design changes; or 6) Interference by another contractor’s or the Owner’s personnel. 4.12.4 Weather Delay - In order for a Weather Delay to occur, the total lost weather days must exceed the total number of such days included in the contract time as specified in the Special Provisions for the project. The Weather Delay, if any, shall be the number of days of such excess; provided that no Weather Delay shall have occurred except to the extent that Work which needs to be performed during the period of time affected by adverse weather is actually delayed in a manner that delays the critical path to completion of the Work. As used herein, a “lost weather day” shall mean a day during which actual adverse weather prevents work on activities that need to be performed on that day in accordance with the Project Schedule for fifty percent (50%) or more of Contractor’s scheduled Work for such day. Contractor shall report to Owner no later than 10:30 a.m. Mountain Time on each day Contractor claims to be a lost weather day or (ii) if Work on the Project has commenced for such day, within one hour of Contractor’s decision to suspend Work because of such adverse weather. Such report shall state that Contractor considers that a lost weather day is occurring and shall describe the weather conditions experienced and how the weather conditions have affected the Scheduled Work for such day. Unless Contractor gives such timely notice as to any day when work is adversely affected by adverse weather, Contractor shall not be entitled to claim such day as a lost weather day. 4.12.5 Time Adjustments for Weather Delays - The Project Engineer, or Project Manager, in his or her discretion, may deem weather-related delays as excusable/non-compensable if the net number of lost weather days in any month exceeds the number of Reasonably Predictable Weather Days for that month shown on the approved Construction Schedule. The Contractor must submit a weather time impact analysis supporting any request for time extensions due to unusually severe weather. If Contractor is delayed in the performance or progress of the Work by fire, flood, epidemic, abnormal weather conditions, acts of God, acts or failures to act of utility owners not under the control of Owner, or other causes not the fault of and beyond the control of Owner and Contractor, then Contractor shall be entitled to an equitable adjustment in Contract Times, if such adjustment is essential to Contractor’s ability to complete the Work within the Contract Time. Such an adjustment shall be Contractor’s sole and exclusive remedy for the delays described in this Paragraph. 4.13 LIQUIDATED DAMAGES: The Owner may permit the Contractor to proceed if the Contractor fails to advance the Work sufficiently to obtain a Notice of Substantial Completion on or before the Completion Date, as modified by Change Orders providing for additional time due to excusable delays. In such case, the Contractor will pay the sum of liquidated damages stipulated in the Special Conditions for each day that the Work remains uncompleted. This sum shall not be a penalty but is liquidated damages. The Parties agree that time is of the essence in the performance of this Contract and that actual damages for delay are incapable of calculation. The Parties agree that, under all of the circumstances, the daily basis and the amount set forth as liquidated damages is reasonable and equitable. The Owner expends additional personnel effort in administrating the Contract or portions of it that are not completed on time, and such efforts and the costs thereof are impossible to accurately compute. In addition, some, if not all, citizens of the City of Englewood incur personal inconvenience and lose confidence in their government as a result of public projects or parts of them not being completed on time, and the impact and damages, certainly serious in monetary as well as other terms, are impossible to measure. Permitting the Contractor to continue and finish the Work, or any part of it, after the Completion Date shall not operate as a waiver on the part of the Owner of liquidated damages or any of its rights under the Contract. Page 424 of 553 20 The Owner may deduct liquidated damages or any portion thereof due under this article from Final Payment and may sue for and recover such damages from the Contractor and the Surety. The Owner and Contractor agree that as liquidated damages for delay, but not as a penalty, Contractor shall pay the Owner the amount specified in the table below for each day that expires after the time specified for substantial completion until the Work is complete, and for each day that expires after the time specified for final completion until the Work is finally complete. Original Contract Amount Amount of Liquidated Damages Per Day Less than $150,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $500.00 $150,000 and less than $500,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,000.00 $500,000 and less than $1,000,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,600.00 $1,000,000 and less than $2,000,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,300.00 $2,000,000 and less than $4,000,000 .............................................................................................................. $4,100.00 $4,000,000 and over. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $5,800.00 In addition to liquidated damages, inspections required after the Contractual "Time of Completion" shall be charged to the Contractor at the rate of $50.00 per hour. The Owner shall recover said inspection charges and liquidated damages by deducting the amount thereof out of any moneys which may be due or may become due to the Contractor, and/or by an action at law against the Contractor or his Surety. It is understood and agreed that aside from any other penalty or damage, all costs of the Project Engineer, or Project Manager, and inspection on behalf of the Owner may be charged to the Contractor and be deducted from any estimate or payment otherwise due and payable to him 4.14 ADJUSTMENT FOR SUSPENDED WORK: In the event the Contractor is ordered by the Owner, in writing, to suspend Work for some unforeseen cause not provided for in the Contract, and over which the Contractor has no control, the Contractor may be reimbursed for actual money expended on the job during the period of shutdown. No allowance will be made for lost profits. The period of shutdown shall be computed from the date set out in the written order for Work to cease until the date of the order for Work to resume. Claims for such compensation shall be filed with the Owner within 10 days after date of order to resume Work or such claims will not be considered. The Contractor shall submit with his claim, substantiating papers covering the entire amount shown on the claim. The Owner shall take the claim under consideration, and may make such investigations as are deemed necessary, and shall be the sole judge as to the equitability of such claim and such decision shall be final. Notwithstanding any provisions of this Contract to the contrary, no provision of this section shall be construed as entitling the Contractor to compensation for delays due to inclement weather, delays due to failure of Surety, for suspensions made at the request of the Contractor, or for any other delay provided for in the Contract Documents, Specifications, Special Provisions, Proposal, Contract, Change Order, Field Order or Supplemental Agreement. 4.15 TERMINATION OF CONTRACT: The Contract may be terminated by theOwner 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 theOwner to the Contractor or his Surety. In case of termination all expenses incident to ascertaining and collecting losses under the bond, including Project Engineer, or Project Manager, and legal services, shall be assessed against the bond. 4.16 TERMINATION FOR CAUSE: The Owner may terminate the Contract for cause due to the actions or inactions of the Contractor. Cause includes, without limitation: a) If the Work to be performed under the Contract is assigned by the Contractor without written permission of the Owner; b) Contractor's disregard of Laws or Regulations of any public body having jurisdiction; c) Contractor's repeated disregard of the authority of the Project Engineer; ; d) If a general assignment of the Contractor’s assets is to be made for the benefit of its creditors; e) If a receiver is appointed for the Contractor or any of its property; Page 425 of 553 21 f) Substantial evidence of collusion for the purpose of illegally procuring a Contract or perpetrating fraud on the Owner in the construction of the Work under the Contract; g) If the Contractor has materially breached any of the conditions, provisions or covenants of the Contract; h) Failure of the Contractor to promptly repair, replace or remove any defects in materials or Work or any defects in materials or Work of any other nature, the correction of which has been directed in writing by the Project Engineer, or Project Manager; i) If, at any time, the performance of the Work under the Contract is being unnecessarily delayed or if the Contractor is willfully or deliberately violating any of the conditions, provisions, or covenants of the Contract Documents, or if the Contractor is executing the same in bad faith or otherwise not in accordance with terms of the Contract; j) Evidence that the progress being made by the Contractor is insufficient to complete the Work within the specified time; k) Failure of the Contractor to start the Work on the date given in the Notice to Proceed; l) If the Work or any part of the Work is not fully completed within the time or times named for its completion or within the time to which such completion date or dates have been extended; m) If the Contractor abandons the Work by failing to be at work site for two consecutive days, and performing work, on days upon which the schedule anticipates work to be performed; n) If the Contractor fails to maintain the required Bonds, licenses, permits, or insurance; o) Bankruptcy or insolvency of the Contractor, or if the Contractor shall allow any final judgment to stand against him unsatisfied for a period of ten (10) days or shall make an assignment for the benefit of creditors. p) If the Contractor or any of its officers or employees are convicted, plead nolo contendere, enter into a formal agreement in which they admit guilt, enter a plea of guilty, or otherwise admit culpability to criminal offenses of bribery, kickbacks, collusive proposing, bid-rigging, antitrust, fraud, undue influence, theft, racketeering, extortion or any offense of a similar nature, in connection with Contractor’s business; or q) If other just cause exists. 4.16.1 Written Notice - The Owner will send written notice to the Contractor and the Surety of the Owner’s intent to terminate for cause and will give the Contractor and Surety ten (10) days from the date the notice was sent to cure the default, if such default is subject to cure, or provide to the Owner in writing, a detailed plan of how it will remove the causes for termination, except that, if the Completion Date is less than ten (10) days away, the notice may specify less than ten (10) days. If the Contractor or Surety does not submit such plan within the time established, or if, in the judgment of the Owner, such plan will not ensure the satisfactory performance of the Work, the Owner may declare the Contract terminated on the effective date specified in the notice or any other date thereafter. 4.16.2 Discontinue Work - In the event of termination for cause, the Owner shall notify the Contractor to discontinue all Work under the Contract and the Contractor shall immediately respect such notice, stop all Work and cease to have any right to possession of the Work site. 4.16.3 Contract Forfeiture - In addition, the Contractor shall forfeit its Contract as of the specified effective date of termination. 4.16.4 Possession of Materials and Equipment - Upon such termination for cause, the Owner may take possession of all materials, equipment, tools, and temporary material manufacturing plants as may be on the site of the Work or necessary for completion of the Work and take over the Work and prosecute the same to completion, by Contract or otherwise, for the account and at the expense of the Contractor. 4.16.5 Cost Liability - If Owner proceeds as provided in Paragraph 4.16, Contractor shall not be entitled to receive any further payment until the Work is completed. If the unpaid balance of the Contract Price exceeds all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) sustained by Owner arising out of or relating to completing the Work, such excess will be paid to Contractor. If such claims, costs, losses, and damages exceed such unpaid balance, Contractor (and/or its surety) shall pay the difference to Owner. Such claims, costs, losses, and damages incurred by Owner will be reviewed by the Project Engineer as to their reasonableness and, when so approved by the Project Engineer, incorporated in a Change Order. When exercising any rights or remedies under this Paragraph, Owner shall not be required to obtain the lowest price for the Work performed. 4.17 TERMINATION FOR CONVENIENCE OF THE OWNER: The performance of Work under the Contract in whole or in part may be terminated without cause by the Owner whenever the Owner, in its sole discretion, shall determine Page 426 of 553 22 that such termination is in the best interest and convenience of the Owner or whenever the Owner is prohibited from completing the Work for any reason. Such termination shall be effected by giving not less than three (3) days’ written notice to the Contractor specifying the extent to which performance of the Work is terminated and the date upon which such termination becomes effective. 4.17.1 Contractor Responsibilities - Upon receipt of such notice of termination, the Contractor shall: a) Stop work under the Contract on the date and to the extent specified in the Notice of Termination; b) Place no further orders or subcontracts for materials, services or facilities, except as may be necessary for completion of such portion of the Workunder the Contract as isnotterminated; c) Terminate all orders and subcontracts except as necessary to complete Work which is not terminated; d) If directed in writing by the Owner to do so, assign all right, title, and interest in subcontracts and materials in progress, in which case the Owner will have the right, in its discretion, to settle or pay any or all Claims arising out of the termination of such subcontracts; e) Transfer title and deliver to the Owner in the manner, at the times, and to the extent, if any directed by it, (a) the fabricated or un-fabricated parts, Work in process, completed Work, supplies and other material procured as a part of, or acquired in connection with the performance of, the Work terminated by the Notice of Termination, and (b) the completed or partially completed Plans, drawings, information, and other property, which, if the Contract had been completed, would have been required to be furnished to the Owner; f) Settle outstanding liabilities and claims with the approval of the Owner; g) Complete performance of such part of the Work not terminated; and h) Take such other actions as may be necessary, or as may be directed by the Owner, for the protection and preservation of the property related to the Contract. 4.17.2 Payment for Work Performed - With respect to Contract Work performed prior to the effective date of the Notice of Termination, the total (without duplication of any items) of: a) The cost of such Work; b) The cost of settling and paying claims arising out of the termination of Work under subcontracts or orders as provided in subparagraph (d) above, exclusive of the amounts paid or payable on account of supplies or materials delivered or services furnished by the Subcontractor prior to the effective date of the Notice of Termination of Work under the Contract, which amounts shall be included in the cost on account of which payment is made under (a) above; c) A sum, as profit on the cost of such Work, determined by the Owner to be fair and reasonable; provided, however, that if it appears that the Contractor would have sustained a loss on the entire Contract had it been completed, no profit shall be included or allowed under this subparagraph and an appropriate adjustment shall be made by reducing the amount of the settlement to reflect the indicated rate of loss; d) The reasonable cost of the preservation and protection of property incurred pursuant to subparagraph (h) and any other reasonable cost incidental to termination of Work under this Contract, including expense incidental to the determination of the amount due to the Contractor as the result of the termination of Work under this Contract. 4.17.3 Remaining Inventory - Except as provided herein, any inventory paid for by the Owner but remaining upon the termination of the Contract may, with written approval of the Owner, be sold or acquired by the Contractor under the conditions prescribed by and at prices approved by the Owner. 4.17.4 Request for Final Payment - Upon receipt of notice of such termination, the Contractor shall submit to the Project Engineer, or Project Manager, a request for final payment, in a form and with certification prescribed by the Owner. Such request shall be submitted promptly but in no event later than sixty (60) days from the effective date of termination, unless extended in writing by the Project Engineer, or Project Manager, upon the written request of the Contractor within such sixty (60) day period, or such earlier date as is provided by law. 4.17.5 Profit - Subject to the provisions contained herein, the Contractor and the Owner may agree upon the whole or any part of the amount or amounts to be paid to the Contractor by reason of the total or partial termination of Work pursuant to this Section, which amount or amounts may include an allowance for profit on Work done; provided that such agreed amount or amounts, exclusive of settlement costs, shall not exceed the total Contract price as reduced by the amount of payments otherwise made and as further reduced by the Contract price of Work terminated. The Contract will be amended accordingly, and the Contractor will be paid the agreed amount. Page 427 of 553 23 4.17.6 Calculation of Final Payment - The final payment to the Contractor after a termination for convenience shall be calculated as follows: a) From the Contract Price, subtract the following: 1) The total amount paid to the Contractor to date; 2) The value of the Work completed since the last approved pay application; 3) The total amount of retainage withheld by the Owner to date; 4) The agreed price for, or the proceeds of sale of, any materials, supplies, or other things acquired or sold by the Contractor or sold pursuant to these General Conditions and not otherwise recovered by or credited to the Owner; 5) The total of all claims the Owner may have against the Contractor; and 6) Any outstanding claims pursuant to C.R.S. § 38-26-107, as amended or superseded. b) Multiply the number resulting by 0.05. The number resulting is the full and complete compensation for anticipated profits c) Add the following to the total resulting from the prior step: 1) Any actual costs incurred by the Contractor for restocking charges; 2) The agreed upon price of protecting the Work in the manner, if any, directed by the Owner; 3) The amount of retainage withheld by the Owner to date; and 4) The value of the Work completed since the last approved pay application. The sum calculated under this article, when paid to the Contractor, shall constitute full and final settlement of the Contract Price. 4.17.7 Defective Work - The settlement for the Work performed shall not relieve the Contractor, or its surety, from responsibility for defective Work and/or materials on the completed portion of the Work nor for labor and materials or any other items as guaranteed by the Bonds. 4.17.8 Owner Access - Unless otherwise provided for in this Contract, or by applicable statute, the Contractor, from the effective date of termination and for a period of three years after final settlement under this Contract, shall preserve and make available to the Owner at all reasonable times at the office of the Contractor, but without direct charge to the Owner, all books, records, documents and other evidence bearing on the costs and expenses of the Contractor under this Contract and related to the expenses of the Contractor under this Contract and related to the Work terminated hereunder, or to the extent approved by the Owner, photographs, micro-photographs, or other authentic reproductions thereof. 4.17.9 Right to File Claim - If the Parties fail to agree in whole or in part on the amount or amounts to be paid to the Contractor in connection with the termination of work pursuant to this article, the Contractor may submit a claim as provided in these General Conditions, except that, if the Contractor has failed to submit its request for payment within the time provided above and has failed to request an extension of such time, it shall have no such right. 4.17.10 Total Sum to be Paid - The total sum to be paid to the Contractor under subparagraph (a) above will not exceed the total Contract price as reduced by the amount of payments otherwise made and as further reduced by the Contract price of Work terminated. 4.17.11 Deduction for Claims - In arriving at the amount due the Contractor under this Section, there will be deducted (i) any claim which the Owner may have against the Contractor in connection with this Contract, (ii) the agreed price for, or the proceeds of sale, of materials, supplies or other things acquired by the Contractor or sold, pursuant to the provisions of this Section and not otherwise recovered by or credited to the Owner and (iii) the full amount of any statutory or other claim against the Contractor filed with the Owner. 4.17.12 Subcontractors - The Contractor shall insert in all subcontracts that the Subcontractor shall stop Work on the date of and to the extent specified in a Notice of Termination from the Owner and shall require that any tier subcontractors insert the same provision in any tier subcontracts. 4.18 COOPERATION WITH OTHER CONTRACTORS: In connection with the improvements under this Contract, the right is reserved by the Owner to award any Work not included in the Contract to another Contractor for performance during the progress of the Work, or to perform such Work with the Owner's forces, and the Contractor under this Contract shall cooperate and so conduct his operation as to minimize the interference therewith, as directed by the Project Engineer, or Project Manager. Page 428 of 553 24 4.19 TERMINATING OF CONTRACTOR'S RESPONSIBILITY: This Contract will be considered complete when all Work and final cleanup has been finished, the Work accepted by the Owner, and all claims for payment of labor, materials, or services of any kind used in connection with the Work have been settled for by the Contractor or his Surety. The Contractor will then be released from further obligation except as set forth in the Surety Bond and for his responsibility for injury to persons or property arising from his duties and obligations under Section 7. The Surety Bond executed for performance of this Contract shall be in full effect for a period of one year following acceptance of the Work, except that with regard to the representation regarding copyright infringement found in Article 18, the Surety shall remain in effect for three years and with regard to the representation regarding patent infringement found in Article 18, the Surety shall remain in effect for six years. Neither the final payment nor any provision in the Contract documents shall relieve the Contractor of the responsibility for negligence or faulty materials or workmanship. The Contractor shall warrant his work to be free from faulty materials or workmanship for the period of one year after final payment and upon written notice he shall remove any defect due thereto and pay for any damage due to other Work resulting there from which shall appear within the one-year period. Remedied Work shall carry the same warranty as the original Work starting with the date of acceptance of the replacement or repair. Payment to the Contractor will not relieve him of any obligation under this Contract. Article 5. PROJECT AND CONSTRUCTION MANAGEMENT 5.1 AUTHORITY OF PROJECT ENGINEER, OR PROJECT MANAGER: The Project Engineer, or Project Manager, shall decide any and all questions which may arise as to the quality and acceptability of the materials furnished, the Work performed, the manner of performance and the rate of progress of the Work. He/She shall decide all questions which may arise as to the interpretation of the Plans and Specifications, all questions as to acceptable fulfillment of the Contract, all disputes and mutual rights by the Contractors if there is more than one Contractor on the Work, and all questions as to compensation. The decision of the Project Engineer, or Project Manager, shall be final. He/She shall have executive authority to make effective such decisions and to enforce the Contractor to carry out all orders promptly. The Project Engineer, or Project Manager, shall be the primary interpreter of the meaning and intent of the Construction Documents and shall be, in the first instance, the judge of the performance of the Contract. The Project Engineer, or Project Manager, will visit the site at appropriate intervals to become familiar with its progress and quality and to determine in general if the Work is being performed in such a manner that it will, when fully completed, be in accordance with the Contract Documents. The Project Engineer, or Project Manager, shall, in a timely manner, evaluate and issue written determinations resolving any claims or disputes submitted to the Project Engineer, or Project Manager, for review under the Contract. Interpretations and decisions of the Project Engineer, or Project Manager, will be consistent with the intent of, and reasonably inferable from, the Contract Documents. The Project Engineer, or Project Manager’s decisions on matters relating to aesthetic effect shall be final if consistent with the intent expressed in the Contract Documents. In exercising its authority to make such determinations, the Project Engineer, or Project Manager, shall exercise independent professional judgment based on the Contract Documents and shall not favor Contractor or Owner. All such determinations shall be subject to judicial review, provided, however, that any matters designated as Disputes under the Contract shall be submitted to Dispute Resolution in accordance with the Contract before being made the subject of litigation unless the Contract specifically provides otherwise. 5.2 COMMUNICATIONS: Contractor shall furnish both Owner and Project Engineer copies of all notices Contractor gives to either the Project Engineer, Project Manager, or Owner under the Contract relating to Applications for Payment, Change Directives, Proposed Changes, Change Orders, Progress Payments, or claims for adjustment in the Contract Sum, Required Substantial Completion Date or Required Final Completion Date. Such duplicate notice shall also be given as to other matters requested in writing by Owner or Project Engineer, or Project Manager. 5.3 SUPERVISION: The Contractor shall supervise and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. The Contractor shall be solely responsible for the means, methods, techniques, sequences, and procedures of construction. The Contractor shall be responsible to see that the completed work complies with the Contract Documents. The Contractor shall designate and keep on the Work at all times during its progress a competent Superintendent who shall not be replaced without prior written notice to the Owner and Project Engineer. The Superintendent will be the Contractor's representative at the site and shall have authority to act on behalf of the Contractor. All communications given to the Superintendent shall be as binding as if given to the Contractor. During periods when the Work is suspended, the Contractor shall make appropriate arrangements for any emergency work which may be required. Page 429 of 553 25 Whenever the Superintendent is not present on any particular part of the Work where the Project Engineer, or Project Manager, may desire to inform the Contractor relative to interpretation of the Plans and Specifications or to disapproval or rejection of materials or Work performed, the Project Engineer, or Project Manager, may so inform the foreman or other worker in charge of the particular part of the Work in reference to which the information is given. Information so given shall be as binding as if given to the Superintendent. The Contractor will be supplied with four (4) copies of the Plans, and three (3) copies of the Specifications and Special Provisions. He shall have available at the job site, at all times, one copy each of said Plans, Specifications and Special Provisions, exclusive of the set designated for As-Built Drawings. Additional copies of Plans, Specifications and Special Provisions can be obtained by the Contractor for the cost of reproduction. 5.4 CONTRACTOR PERFORMANCE: The Contractor will perform the Work or cause the Work to be performed in a manner that is in compliance with the requirements of the Contract Documents. The Contractor shall perform the Work exactly as specified by the Contract Documents. Unless otherwise provided in the Contract Documents, for the Unit Prices, the Contractor shall provide and pay for all labor, materials, equipment, tools, supplies, construction equipment and machinery, water, heat, electricity, energy, utilities, transportation, any temporary construction easements not provided by the Owner, apparatus, permits, superintendence, maintenance, dismantling, removal, and other facilities and services, necessary for the proper execution and completion of the Work, whether temporary or permanent, and whether or not incorporated or to be incorporated into the Work. The Contractor shall be solely responsible for all construction means, methods, safety, techniques, sequences and procedures unless otherwise specified in the Contract Documents. There is a need for 24-hour access to the Contractor’s Superintendent in case of emergency. The contractor shall supply the Project Engineer, or Project Manager, with a contact telephone number through which the Superintendent may be reached at any time. When the work includes adjusting valve boxes, meter pits, manholes, pavement markings and/or striping, etc., the Contractor shall complete this work within ten (10) days of placing the final lift of asphalt. 5.5 WORK PERFORMED UNDER ADVERSE WEATHER CONDITIONS: Adverse weather conditions are those that can, depending on the Work to be performed, cause defective Work. Examples include: high or low temperatures, excessive moisture, unusual drying conditions, or high winds. Construction methods and practices that have been or may be developed for Work performed under such circumstances may only be used after the Project Engineer, or Project Manager, has approved the concept of such method or practice. If the Contractor does attempt Work during periods of adverse weather conditions without the Project Engineer’s, or Project Manager’s, approval, that Work shall be at the Contractor’s sole risk. 5.6 USE OF MATERIALS FOUND ON THE WORK SITE: The Contractor, with the approval of the Project Engineer, or Project Manager, may use in the proposed construction, any stone, sand, or gravel found on the site. The Contractor will not be paid for such excavation unless specifically stated in the Proposal, and he shall replace with other suitable material, without compensation, all of that portion of the material so removed. If it was intended that any or all of the material so excavated and used was to have been wasted, then the Contractor will not be required to replace it. The Contractor shall not excavate any material from the site which is not within the excavation as indicated by the slope and grade lines, without being authorized in writing by the Project Engineer, or Project Manager. 5.7 FINAL CLEANING UP: During the Project's final cleanup, the Contractor shall remove from the site all machinery, equipment, surplus and discarded materials, rubbish, temporary structures, and stumps or portions of trees. The streets and adjacent properties in the Project shall be repaired to as good or better condition than existed prior to construction. This shall include removal of all dirt or mud from streets and lawns. No extra payment shall be made for these items. The Contractor shall leave the Project in a neat and presentable condition. (See Article 17, below). 5.8 SURVEYS: The Contractor shall develop and arrange for all engineering surveys necessary, in the Owner’s judgment, to establish reference points for the construction of the Work. The Contractor assumes full responsibility for construction according to the established lines and grades. If the Contractor proceeds with the Work without having lines and grades set, the Contractor will not be relieved of strict compliance with the Contract Documents. Page 430 of 553 26 The Contractor shall carefully protect all monuments and property markers from disturbance or damage. The Contractor, at its expense, will replace any monuments or benchmarks destroyed by the Contractor using a professional land surveyor licensed in the State of Colorado. Unless otherwise stated in the Specifications or the Special Conditions, the Owner will provide all reference points shown on the Contract Drawings by coordinates and/or elevation. The Contractor must accurately transfer the survey control information to the points of application to ensure that all elements of the Work are correctly located. Requests by the Contractor to relocate survey reference points must be made ninety-six (96) hours prior to the time when the point will be disturbed in order to permit the Owner to accomplish such surveys on normal working days. Any Work that the Contractor begins before confirming the reference points provided may be rejected. Should the original reference points that the Owner provided be obliterated or dislodged by operations that the Contractor controls, the Owner will replace them and charge the Contractor for the resurvey. 5.9 LINES AND GRADES: Contractor shall survey and stake and shall be responsible for laying out the work. The Contractor shall preserve all stakes, bench marks, and any other survey points and shall pay for the replacement, in accordance with state law, of any stakes, benchmarks, or other survey points destroyed by the Contractor or any Subcontractor. 5.10 VALUE ENGINEERING: Value engineering is the independent review of a project during the planning and design phases to reduce costs, save time, improve operations, reduce environmental and other impacts, improve safety, and improve value and quality. Proposed changes in materials or methods used must be approved by the Project Engineer, or Project Manager, and any agency having jurisdiction over the affected work before such work is attempted. The Contractor shall be paid fifty percent (50%) of all identifiable cost savings resulting from said value engineering approved and accepted. A Change Order must be issued to effect such a value engineering task. 5.11 SANITARY REGULATIONS: The Contractor is responsible for providing proper health and sanitation facilities for its employees, in compliance with any rules and regulations of the Colorado Department of Public Health and Environment or any other agencies having jurisdiction. The Contractor shall provide and maintain in a neat, sanitary condition, such accommodations for the use of employees as may be necessary to comply with the requirements and regulations of the State Department of Health and the Occupational Safety and Health Administration (OSHA). As stated in OSHA Construction Standard 1926.51 C, the Contractor shall supply temporary sanitary facilities as per the following table: Number of Employees Minimum Toilet Facilities 20 or less 1 Toilet 21 to 50 1 Toilet and 1 Urinal 51 or more 1 Toilet and 1 Urinal for each 50 Employees This requirement to provide sanitary facilities will not be measured and paid for separately but shall be considered incidental to and included in the cost of the Work. At convenient places, the Contractor shall provide fly-proof outside toilets which are to be maintained in a sanitary condition. Toilets shall not be permitted in any reservoir area and shall not be permitted where they may pollute a water supply. The Contractor shall always provide an abundant supply of safe drinking water for Contractor’s employees and shall give orders against the drinking of any water known to be unsafe in the vicinity of the Project. The Contractor shall provide and empty daily a thirty (30) gallon or larger trash can near each toilet. 5.12 STAGING AND STORAGE: With the approval of the Project Engineer, or Project Manager, the Contractor may obtain sites of his/her choosing for equipment storage and/or materials stockpiling. The Contractor shall not occupy storage sites without prior written approval by the Project Engineer, or Project Manager. A list of such sites showing the proposed truck route for ingress and egress for each site shall be submitted to the Project Engineer, or Project Manager, for approval at least five (5) days prior to intended use. For all sites approved and used, Contractor shall be responsible for the following: a) Obtaining prior written permission of the owner. A copy of this permission shall be provided to the Owner; b) Keeping stockpiles and equipment confined within the approved area and in accordance with applicable erosion control requirements; c) Providing security for materials and equipment at the site; d) Providing for public safety at the site; Page 431 of 553 27 e) Keeping access roads clean and in good condition and in accordance to the Owner’s Erosion Control requirements; and f) At Contractor’s sole cost expense, restoring the site to its original or better condition at the completion of the Work. 5.13 SALVAGE: Items removed by Contractor shall become the property of Contractor unless other disposition or repositioning is required by the Contract Documents or needed for the Work. The Contractor may reuse such items elsewhere, sell such items with proceeds of said sale becoming the property of Contractor or otherwise dispose of such items from the site. Items removed by the Contractor that do not have any salvage value are to be disposed of by Contractor at an approved waste disposal site at the Contractor’s expense, except for any items that the Owner will take for recycling. 5.14 MATERIALS AND EQUIPMENT FURNISHED BY THE CONTRACTOR: Unless otherwise provided for in the Specifications, all workmanship, equipment, materials, and articles incorporated in the Project are to be new, suitable for the purpose used, of good quality, free from faults and defects and in conformance with the Contract Documents. The Contractor further warrants that it has full title to all parts, materials, components, equipment, and other items conveyed to the Owner under the terms of the Contract, that its transfer of such title to the Owner is rightful and that all such parts, materials, components, equipment, and other items shall be transferred free and clear from all security interests, liens, claims, or encumbrances whatsoever. Materials, supplies, and equipment to be incorporated into the Project shall not be purchased by the Contractor or any Subcontractor subject to chattel mortgage or under a conditional sales contract or other agreement by which an interest is retained by the seller. The Contractor agrees to warrant and defend such title against all persons claiming the whole or any part thereof, at no cost to the Owner. The Contractor shall furnish the Owner, for the Project Engineer, or Project Manager’s approval, the name of the manufacturer of machinery and other equipment for materials the Contractor contemplates incorporating in the Project. The Contractor shall also furnish information on capacities, efficiencies, sizes, etc., and other information as may be required by the Project Engineer, or Project Manager. All items shall be labeled to indicate the Contract and Project name, Contractor, source of supply, and manufacturer and shall be submitted in sufficient time to permit proper consideration by the Project Engineer, or Project Manager, without impacting the Construction Schedule. The Contractor shall have available for use when needed all necessary construction machinery and equipment. Such machinery and equipment shall comply with all applicable federal, state and local safety requirements and be in good working condition, adequate for the task, and in the numbers needed to maintain a rate of progress sufficient to complete the Work within the Contract Time and milestones. Whenever an operation is undertaken which must be accomplished without any slowdown or stoppage, or to avoid an inferior product, the Contractor shall provide standby equipment capability so that an equipment breakdown does not disrupt that activity. The Contractor shall give the Project Engineer, or Project Manager, three (3) copies of all shop manuals, operating manuals, parts lists, classifications, catalog cuts, specifications, warranties and guarantees for all equipment and machinery installed. Consideration of a product as an “equal” or “superior” by the Project Engineer, or Project Manager, may require that the manufacturer of such product furnish guarantees that extend beyond the usual product warranty time. The refusal of a manufacturer to provide such guarantees is sufficient reason for rejecting the product. The Contractor shall not incorporate any materials into the Project or cover any part of the Work until it has been inspected and approved according to the Contract Documents. Machinery, equipment, materials, and articles installed or used without the Project Engineer, or Project Manager’s approval are at the risk of subsequent rejection. The Contractor shall be responsible for materials delivered and Work performed until completion and final acceptance of the entire construction thereof. The Contractor shall bear the risk of injury, loss or damage to any and all parts of the Work for whatever cause, whether arising from the execution or from the non-execution of Work. The Contractor shall rebuild, repair or restore Work and materials which have been damaged or destroyed from any causes before completion and acceptance of the Work and shall bear the expense thereof. The Contractor shall provide security and drainage and erect temporary structures as necessary to protect the Work and materials from damage. The Contractor shall be responsible for materials not delivered to the site for which any progress payment has been made to the same extent as if the materials were so delivered. 5.15 SUBSTITUTION OF MATERIALS AND EQUIPMENT: After the award of the Contract, the Contractor may ask for substitution of specified material or equipment with equal or equivalent, or superior items only under the Page 432 of 553 28 following circumstances: (i) The Contractor provides evidence to the Project Engineer, or Project Manager, that, in the Project Engineer, or Project Manager’s sole opinion, establishes that an item of specified material is not available; (ii) the Contractor provides evidence to the Project Engineer, or Project Manager, that, in the Project Engineer, or Project Manager’s sole opinion, establishes that the specified item will have an unreasonable delivery time due to no fault of the Contractor; or (iii) acceptance of such substitution would result in a significant saving to the Owner without materially impairing the quality or performance of the Work. If any of these circumstances exist, the Contractor shall request approval for a substitution at least thirty (30) days before the material or equipment must be ordered. All requests for substitutions shall be made in writing as part of a submittal. The request shall describe all features of the requested substitution including any tie-in with other elements of the Work, including utilities and controls along with the size and capacity of substitute materials or equipment. The request must be submitted on a form provided by or otherwise acceptable to the Project Engineer, or Project Manager, and shall list all differences from the product described in the Specifications, include the price of the specified item and the requested substitution, and describe any advantages or disadvantages of the proposed substitution. The Contractor shall be responsible for any effect upon related Work in the Project of any substitution and shall pay any additional cost resulting from or relating to any substitution. If the “equal or equivalent” material or equipment costs less than that specified, the Contractor shall so state in its request for substitution and, if the Owner accepts the proposed substitution, it may issue a Change Order to reduce the Contract Price by the amount of the direct cost savings without markup to the Contractor. If the equal or equivalent material or equipment is accepted for unavailability or unreasonable delivery time due to no fault of the Contractor, the Owner may, if appropriate, issue a Change Order to increase the Contract Price by the resulting actual, direct cost increase, if any, to the Contractor, without markup. 5.16 CUTTING AND PATCHING: The Contractor shall be responsible for all cutting, fitting, or patching that may be required to complete the Work, to make its several parts fit together properly or to tie the Work into other work that is shown in the Contract Documents. The Contractor shall organize and plan the Work to reduce to a minimum the need for cutting or otherwise modifying or removing load-bearing structural elements to accommodate the installation of other elements of the Work. If two or more contractors are doing work in the same place, the Contractor shall be responsible for the coordination effort needed to avoid or to reduce the amount of cutting, modifying or removing of structural elements to accomplish such work. However, if modification or removal of structural elements is required because the Work could not be organized and planned to avoid that need, the Contractor shall inform the Project Engineer, or Project Manager, of the need so that the consequences of such modification or removal of structural elements can be assessed. No structural element shall be cut, drilled, bored or otherwise modified unless cutting, drilling, boring or other modification is indicated in the Contract Documents. If the Contractor needs to modify a structural element from its original design, the Contractor must submit to the Project Engineer, or Project Manager, a request to make the modification. The request must provide complete details including all necessary calculations performed by a professional engineer licensed in the State of Colorado to show that the structural elements can still function as originally designed. The request must be accepted by the Project Engineer, or Project Manager, before any modification is made. The Contractor shall be responsible for all repair, replacement, and patching that is necessary to restore the Work, other property, or work of others damaged by the Contractor or Subcontractor. 5.17 SAMPLES AND TESTING: All materials and equipment used in the Project will be subject to sampling and testing by an independent testing company acceptable to the Owner according to generally accepted standards and as required in the Contract Documents. In the absence of direct references, the sampling and testing of materials will be done according to current specifications of the ASTM or the AWWA. The Contractor shall furnish all samples without charge. The Contractor will cooperate with the Project Engineer, or Project Manager, in collecting, handling, storing, and forwarding required samples including the furnishing of manpower and equipment when necessary. The Contractor will pay the cost of the initial test except when the Contract states otherwise. The Contractor will pay the costs for repeated tests due to failure of the initial test. The costs of any testing and retesting may be deducted from any payment due to the Contractor under the Contract. The Contractor will provide the Project Engineer, or Project Manager, at least twenty-four (24) hours prior notice for any inspection involving testing or sampling. The Contractor shall be responsible for testing of concrete and soils and, unless otherwise specified, the Contractor shall perform testing of all other materials and equipment. The Contractor shall provide the Project Engineer, or Page 433 of 553 29 Project Manager, with satisfactory proof of compliance with the requirements of the Contract Documents of any materials or equipment tested. Satisfactory proof of compliance shall be submitted in one or more of the following ways: a) Manufacturer’s Certificate of Compliance. For standard labeled stock products of standard manufacture that have a record of satisfactory performance in similar work over a period of not less than two (2) years, the Project Engineer, or Project Manager, may accept a notarized statement from the manufacturer certifying that the product conforms to the applicable specifications. b) Mill Certificates. For materials where such practice is the usual standard, the Project Engineer, or Project Manager, may accept the manufacturer’s certified mill and laboratory certificate. c) Testing Laboratory Certificates. The Project Engineer, or Project Manager, may accept a certificate from an independent commercial testing laboratory satisfactory certifying that the product has been tested within a period acceptable to the Project Engineer, or Project Manager, and that it conforms to the requirements of the Plans and Specifications. d) Report of Actual Laboratory Test. The Project Engineer, or Project Manager, may require that Contractor make actual tests of any product and submit a report of the specified test. Such test shall be made by a commercial testing laboratory satisfactory to the Project Engineer, or Project Manager, at the Contractor’s sole expense. 5.18 PROPERTY RIGHTS IN MATERIALS: The Contractor shall have no property right in materials after they have been attached, affixed or incorporated in the Work or the soil, or after payment has been made by the Owner to the Contractor for materials delivered to the site of the Work or stored subject to or under the control of Owner. Article 6. CHANGES IN THE WORK 6.1 CHANGES AND INCREASED OR DECREASED QUANTITIES OFWORK 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 fullyand 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 theoriginal 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 Page 434 of 553 30 under a remedy-granting provision ofthiscontract.Forpurposesof thisparagraph,"remedy-granting provision" shall be defined as set forth in 24-91-103.6(4), C.R.S. The Contractor shall not start Work on any alteration requiring a Supplemental Agreement until the Agreement setting forth the adjusted prices has been executed by the Owner and the Contractor. All changes or approvals for increasing the Work as required and authorized herein, shall be in written form and approved and signed by the Project Engineer, or Project Manager, prior to the Work being done. All such writings and approvals shall be specific as to the nature of the Work and the quantities involved. Any Work performed without prior written approval of the Project Engineer, or Project Manager, shall not be binding on the Owner. The Contractor may not treat any order, statement or conduct of the Project Engineer, or Project Manager, as a change under this article nor become entitled to an equitable adjustment in the Contract Price or Contract Time except as provided in this article. Claims for changes in the Contract Price or Contract Time of Performance will not be considered after the Final Payment has been made. Change Orders involving an increase in the Contract Price must be authorized in accordance with the City’s adopted purchasing policy, a copy of which is available upon request. Such purchasing policy provides that the total of all such Change Orders associated with a project that increases the total cost of the Contract by more than 10% must be approved by a supplemental agreement. 6.1.2 Owner Change Request - The Owner may, without notification to any Surety, require the Contractor to perform additive or deductive changes to the Work within the general scope of the Project without invalidating the Contract or any Bond. When the Owner desires to initiate a change, the Project Engineer, or Project Manager, will issue a change request informing the Contractor of the proposed change in the Work, and requesting the Contractor’s detailed price proposal for such change. The Contractor, at no expense to the Owner and within the time period specified in the Change Request, shall provide the Project Engineer, or Project Manager, with a complete and itemized proposal for the change in the Work, which shall include the estimated increase or decrease in the Contract Price or Contract Time. Such increase or decrease shall be based on the criteria and methods described in these General Conditions. The Contractor shall be responsible for any delays in the Work and any additional costs to the Owner caused by the Contractor’s failure to submit a complete price proposal within the time provided. The Contractor shall participate with the Owner in prompt joint analysis and negotiations to finalize a Change Order. The issuance of a Change Request by the Owner is not a prerequisite to the issuance of a Field Order. 6.1.3 Field Orders - The Project Engineer, or Project Manager, may make changes in the details of the Project at any time, by issuing a Field Order. Upon receipt of a Field Order, the Contractor shall promptly sign the Field Order and return it to the Project Engineer, or Project Manager, and shall promptly proceed with performing the change in the Work. The Field Order shall not involve an increase or decrease in the Contract amount and not involve a change inthetime 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 Page 435 of 553 31 fully described under a Unit Price set forth in the Contract Documents or the Field Order, the Contractor shall proceed with such Work on a time and materials basis. b) Whenever Work is performed on a time and materials basis, the Contractor shall fully document all costs associated with such Work. Beginning with the first day such Work is performed and on a daily basis thereafter, the Contractor shall submit to the Project Engineer, or Project Manager, a daily itemization of all such costs in such form as the Project Engineer, or Project Manager, may require. c) The final Contract adjustment for Field Order changes in the Work performed on a time and materials basis shall be calculated in accordance with these General Conditions. When the Owner and the Contractor reach agreement on an adjustment to the Contract Price or Contract Time, or both as appropriate, such agreement shall be promptly executed as a Change Order. If the Owner requires Contractor to perform additional compensable work under a Field Order prior to executing a Change Order, the Contractor shall submit its costs to perform the work as periodically completed in its monthly application for payment, and Owner shall reimburse such costs, subject to retainage and any applicable withholding. In no instance shall the Owner be required to periodically reimburse Contractor for such additional compensable work prior to Contractor submitting to Owner an estimate of the cost of the additional compensable work to be performed. 6.1.4 Contractor Change Requests - If the Contractor: (i) receives any instructions, interpretations or directives which it believes are at variance with the Contract Documents or would require the Contractor to accelerate or decelerate the Work; or (ii) identifies what it believes are errors or omissions of any kind, including design errors or omissions, in the Drawings or Specifications; or (iii) encounters a differing site condition; or (iv) is delayed in performing the Work; or (v) becomes aware of any other matter or circumstance that the Contractor believes might require a change in the Contract Documents, Contract Time, or Contract Price, the Contractor shall give the Project Engineer, or Project Manager, prompt written notice of such matter and request a Change Order in a document identified as a “Contractor Change Request.” Following submission of a Contractor Change Request, the Contractor shall diligently continue performance of the Contract to the maximum extent possible. All Contractor Change Requests shall be dated, numbered sequentially, and shall describe the action or event that the Contractor believes may require the issuance of a Change Order. The Contractor shall also provide a description of possible Contractor actions or solutions to minimize the cost of the Contractor Change Request and, when possible, provide an estimate of the adjustment in the Contract Time and Contract Price which the Contractor believes is appropriate. a) With respect to orders, instructions, directives, interpretations, determinations, or the discovery of any errors or omissions in the Contract Documents, a Contractor Change Request shall be submitted before the Contractor acts on them, but in no event more than five (5) days after they have been, or reasonably should have been, received or discovered. b) With respect to any differing site conditions, a Contractor Change Request shall be submitted before the conditions are disturbed, but in no event more than five (5) days after the conditions are first discovered or reasonably should have first been discovered. c) With respect to delays, as set out in these General Conditions, a Contractor Change Request shall be submitted as soon as the Contractor becomes aware, or reasonably should have become aware, of the delay, but in no event more than five (5) days therefrom. d) With respect to any other matter or circumstance that the Contractor believes would require a change, a Contractor Change Request shall be submitted as soon as the Contractor reasonably has knowledge of the matter or circumstance, but in no event more than five (5) days after the Contractor becomes aware, or reasonably should have become aware, of such circumstance or matter. 6.1.5 Submittal Requirements and Waiver of Claims a) If the Contractor does not submit a Contractor Change Request within the time required by these General Conditions, any action by the Contractor related to such order, direction, instruction, interpretation, determination, design error or omission, or other matter, including delays or differing site conditions, will not be considered by the Owner as a change to the Work and the Contractor waives any claim for an adjustment on the Contract Price or the Contract Time. b) The Contractor shall, within ten (10) days after submitting a Contractor Change Request, provide the Project Engineer, or Project Manager, with a complete and itemized proposal that sets out as specifically as practicable the requested adjustments to Contract Price, Contract Page 436 of 553 32 Time, or other Contract provisions, and contains the other information described in these General Conditions. c) The proposal shall also contain a detailed explanation, citing all applicable provisions in the Contract Documents that support the Contractor Change Request. If the Contractor does not submit its itemized proposal for a Change Order within the time described above or within such extension that the Project Engineer, or Project Manager, in his or her discretion may have granted in writing, the Contractor waives any claim for an adjustment in the Contract Price or Contract Time arising out of the act or event giving rise to or necessitating a Contractor Change Request. d) The Contractor shall furnish, upon request, all additional information and data that the Project Engineer, or Project Manager, determines is needed to assist the Owner in evaluating and resolving the Contractor Change Request through negotiation. The Contractor shall give the Owner access to its books, correspondence, records, electronic data bases and files, and other materials relating to the work described in the Contractor Change Request, shall require its Subcontractors and Suppliers to provide the Owner with such access, and shall make its personnel and that of its Subcontractors and Suppliers available to discuss and answer cost, schedule, and other questions related to such request. Clear and legible copies of all necessary supporting records shall be provided to the Owner at no cost. Failure to submit requested information may be a basis for denial of the request. e) In the event the Contractor is ordered to perform Work under this Section for which payments are not determined hereunder, which in the opinion of the Owner it is impracticable to have performed by the Contractor's own employees, the Contractor will, subject to the approval of the Owner, be paid the actual cost to him of such Work and, in addition thereto, an amount of ten (10) percent of the actual costs to cover the Contractor’s superintendence, administration and other overhead expenses. The terms and conditions of any subcontract which the Contractor may propose to enter into in connection with Work under the provisions of this Section, shall be subject to the written approval of the Owner before such subcontract is made. f) In cases other than those described above, the Owner and the Contractor (on his own behalf and on behalf of their Subcontractors) shall endeavor to negotiate a reasonable Contract price and line adjustment in a Change Order on terms appropriate to the changed Work. The Contractor will be required to submit a sufficiently detailed price proposal supported with sufficient documentation so that the Owner can determine that (1) the proposal reflects all impacts on the Contract from Work additions, deletions and modifications shown in the change order being priced, and (2) the proposed prices are set out in such a way that their reasonableness can be evaluated against prices based on adequate price competition, Proposal unit prices, established catalog or market prices of commercial items sold in substantial quantities to the general public, prices set by law or regulation, recognized published price lists and indices, independently developed cost estimate and other appropriate price comparisons and (3) Contract provisions relating to Contract changes costing over $100,000.00 are complied with. If any prices or other aspects are conditional, such as on firm orders being made by a certain date or the occurrence or non-occurrence of an event, the Contractor shall identify these aspects in his Proposal. A negotiated Change Order shall set out prices, scheduling requirements, time extensions and all costs of any nature arising out of the issuance of a Change Order except for those cost and time aspects explicitly reserved on the face of the Change Order. g) In the event the Contractor and the Owner are unable to agree upon the Contractor's entitlement to an equitable adjustment or upon the amount thereof, or in the event that it is in the best interest of the Owner to have the Work proceed pending negotiation of amount of an equitable adjustment, the Owner may direct the Contractor to perform the Work in accordance with the Change Order, direction, instruction, interpretation, or determination, with any Contract price adjustments and progress payments for the Work to be determined on a Force Account basis in accordance with Section 1.5. The Contractor shall continue diligently to perform the Contract in accordance with the Owner's order, direction, instruction, interpretation, or determination during negotiations with respect to the Contractor's entitlement to an equitable adjustment hereunder or to the amount of any Contract price adjustment hereunder or to the amount or any Contract price adjustment or time extension. The Contractor and the Owner may agree on certain aspects of an equitable adjustment and take those aspects out of operation of Force Account provisions. h) For Change Orders, the Owner, or its representative shall have the audit and inspection rights as described below: • Where the agreed payment method for any Contract changes is to be by cost reimbursement, time and material, labor, hours, or any combination thereof, the Contractor shall maintain and the Owner or its representatives shall have the right to Page 437 of 553 33 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. • 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; Page 438 of 553 34 (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 orpricing 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 thedate of agreement on thenegotiated price of the Contract Change Order. l) In case a satisfactory adjustment in price cannot be reached for any item requiring a Supplemental Agreement, the Owner reserves the right to terminate the Contract as to said item as it applies to the terms in question and make such arrangements as may be deemed necessary to complete the Work. Should any of the changes, not requiring Supplemental Agreements, be made as provided herein, the Contractor shall perform the Work as altered, increased or decreased at the Contract unit price or prices. 6.1.6 Claims for Concealed or Unknown Conditions - If conditions are encountered at the site which are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or (2) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then notice by the observing party shall be given to the other party promptly before conditions are disturbed and in no event later than seven (7) days after first observance of the conditions. Site conditions which an experienced and prudent contractor could have anticipated by visiting the site, familiarizing himself with the local conditions under which the work is to be performed and correlating his observations with the requirements of the Contract Documents shall not be considered as claims for concealed or unknown conditions, nor shall the locations of utilities which differ from locations provided by the utility companies. The Project Engineer, or Project Manager, will promptly investigate such conditions and, if they differ materially and cause an increase or decrease in the Contractor’s cost of, or the required time for, performance of any part of the Work, will recommend an equitable adjustment in the Contract Sum or Contract Time, or both. If the Project Engineer, or Project Manager, determines that the conditions at the site are not materially different from those indicated in the Contract Documents and that no change in the terms of the Contract is justified, the Project Engineer, or Project Manager, shall so notify the Owner and Contractor in writing, stating the reasons. Claims by either party in opposition to such determination must be made within twenty-one (21) days after the Project Engineer, or Project Manager, has given notice of the decision. If the Owner and Contractor cannot agree on an adjustment in the Contract Sum or Contract Time, the adjustment shall be subject to further proceedings pursuant to Section 1.3.8 and Section 1.3.10. Such sections shall apply to claims by either party, notwithstanding language in said sections that they apply only to claims brought by the Contractor. 6.1.7 Specific Provisions for Delay-Based Contractor Change Requests - If the Contractor Change Request is based in whole or in part on a delay of any kind or nature, the complete itemized proposal shall include the following information in addition to all other required information: a) The date, nature, and circumstances of each event regarded as a cause of the delay; b) The names of all individuals acting on behalf of the Owner who are known or believed by the Contractor to have direct knowledge of the delay; c) If the Contractor claims acceleration costs of scheduled performance or delivery, the basis upon which acceleration arose; d) The identification of any documents and the substance of any oral communications known to the Contractor which substantiate, refute, or concern such delay; e) A Critical Path Method (CPM) schedule corrected to reflect actual performance, showing delay impacts as separate tasks and Contractor’s mitigation of such impacts; and f) The specific elements of Contract performance for which the Contractor may seek an equitable adjustment, including: 1) Identification of each Contract or schedule line item that has been or may be affected by such delay; 2) To the extent practicable, identification of the delay and disruption in the manner and sequence of performance, and the effect on continued performance, that have been or Page 439 of 553 35 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 Page 440 of 553 36 material, supplies and equipment in the largest practical quantity to receive quantity discounts. d) Equipment Costs. Without markup or operator, the lesser of (i) the actual net cost to the Contractor of owned or rented equipment, other than small tools; or (ii) the rental rate for such equipment as determined by using the following method(s): • Equipment rental rates listed in the appropriate rental rate book currently in use by CDOT. If an item of equipment does not appear in the rental rate book currently in use by CDOT, the rental rates published by the Associated Equipment Dealers may be used as a basis for negotiating a rental rate for a particular piece of equipment. The Contractor shall provide all information necessary to determine the appropriate rental rate at the time the equipment is brought on the job. • 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 Page 441 of 553 37 demand of the Owner. The Contract Price adjustment will be based upon any decrease in costs due solely to the variation below 75% of the estimated quantity. Where the quantity of a Unit Price pay item in the Contract is an estimated quantity and the actual quantity of such pay item is more than 25% above the estimated quantity in the Contract, the Owner may elect to terminate the Contract for convenience or issue a Change Order to adjust the Contract Price. The Contract Price adjustment will be based upon any increase in costs due solely to the variation above 125% of the estimated quantity. If the quantity variation is such as to cause an increase in the time necessary for completing the Work, the Contractor may request, in writing, an extension of time in accordance with these General Conditions. 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 Page 442 of 553 38 debarment proceedings; d) Significant or repeated violations of Federal Safety Regulations (OSHA); e) Failure to have the specific qualifications listed in the Contract Documents for the work that the Subcontractor will perform; f) Failure to have the required Owner or Colorado licenses to perform the work described in the subcontract; g) Failure to pay workers the proper wage and benefits or to pay suppliers or subcontractors with reasonable promptness within the last five (5) years; h) Conviction, plea of nolo contendere, entry into a formal agreement admitting guilt or entry of a plea of guilty or otherwise admitting culpability to criminal offenses of bribery, kickbacks, collusive proposing, bid-rigging, anti-trust, fraud, undue influence, theft, racketeering, extortion or any offense of a similar nature in connection with Subcontractor’s business, on 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, Page 443 of 553 39 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 WORKERS WITHOUT AUTHORIZATION AS LABORERS: The Contractor shall not knowingly employ or contract with a Worker without Authorization 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 knowinglyemploy or contract with a Worker without Authorization to perform work under this contract. 7.3.1 Confirmation of Eligibility - The Contractor shall confirm or attempt to confirm the employment eligibility of all employees who are newly hired for employment in the United States through participation in the E-Verify Program. If the Contractor is not accepted into the E-Verify Program prior to executing this contract for services, the Contractor shall apply to participate in the E-Verify Program every three months until the contractor is accepted or this contract has been completed, whichever occurs first. This paragraph 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 a Worker without Authorization 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 a Worker without Authorization, 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 a Worker without Authorization; 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 Worker without Authorization; 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 a Worker without Authorization. 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 Page 444 of 553 40 requirement in accordance with C.R.S. § 8-17-101. 7.4.2 Anti-Discrimination - While engaged in the performance of the Work, Contractor shall maintain employment practices consistent with the Colorado Antidiscrimination Act, C.R.S. § 24-34-301 through § 24-34-804, as amended. The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The Contractor will take affirmative action to ensure applicants are employed, and employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. 7.4.3 Civil Rights - In compliance with the Civil Rights Act of 1964, coupled with the Colorado Governor’s Executive Order dated July 6, 1972, Contractor, for itself and its assignees and successors in interest, agree as follows: (a) When applicable, the Contractor shall comply with the Regulations of the Department of 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. Page 445 of 553 41 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. 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 Workinaccordance with therequirements 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 Contractornorinterfere 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 Page 446 of 553 42 • 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 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 asgiven, except as herein provided, Workdonewithout 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 theWorkinprogress,or anyExtraor unclassified Workdonewithout written authorityand prior Agreement inwritingasto prices, willbe 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, Page 447 of 553 43 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 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. Page 448 of 553 44 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. 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 andobstructions erected bythe Contractorshallbe illuminated at night andalldevices for thispurpose 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, mayorder thedamaged portionimmediatelyremovedandreplaced 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 Page 449 of 553 45 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. 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 Page 450 of 553 46 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 (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 Page 451 of 553 47 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. 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 Page 452 of 553 48 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 anypublic services corporation, the Owner, anycompany, 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 shallalso 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 anypurpose without first obtainingpermission, and he shall beresponsible 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 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 anyclaim, 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 Page 453 of 553 49 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 anydesign 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 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 conformto 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 underthis 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 Page 454 of 553 50 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 Statutesregarding 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. 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 Page 455 of 553 51 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. 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) Page 456 of 553 52 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. 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 Page 457 of 553 53 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 anyother 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 itsemployees. Article 14. INDEMNIFICATION 14.1 CONTRACTOR TO OWNER: The Contractor shall, only to the extent and for an amount represented by the degree or percentage of negligence or fault attributable to the Contractor, indemnify, save harmless, and defend the City, its officers and employees, from and in all suits, actions or claims of any character brought because of: any injuries or damage received or sustained by any person, persons or property because of operations for the City under the Contract; the Contractor’s failure to comply with the provisions of the Contract; the Contractor’s neglect of materials while constructing the Work; because of any act or omission, neglect or misconduct of the Contractor; because of any claims or amounts recovered from any infringements of patent, trademark, or copyright, unless the design, device, materials or process involved are specifically required by Contract; from any claims or amount arising or recovered under the “Workers’ Compensation Act,” by reason of the Contractor’s failure to comply with the act; pollution or environmental liability; or any failure of the Contractor to comply with any other law, ordinance, order or decree. Nothing in this article requires the Contractor to defend, indemnify, or hold harmless the City from the City’s own negligence. 14.1.1 The Contractor will include this article in all Subcontracts. 14.1.2 The City may retain so much of the money due the Contractor under the Contract as the City considers necessary to offset any damages for which Contractor may be liable under this paragraph. If no money is due, the Contractor’s Surety may be held until such suits, actions, claims for injuries or damages have been settled. Money due the Contractor will not be withheld when the Contractor produces satisfactory evidence that it and the City are adequately protected by public liability and property damage insurance. 14.1.3 The Contractor will pay the City all expenses incurred to enforce this article. If the insurer of the Contractor fails to provide or pay for the defense of the City of Englewood, its officers and employees, as additional insured, the Contractor agrees to pay for the cost of that defense. 14.1.4 This article will survive Final Acceptance and the termination of this Contract. 14.2 OWNER TO CONTRACTOR: The City cannot, under Article XI, Section 1 of the Colorado Constitution, and by this Agreement/Contract does not agree to indemnify, hold harmless, exonerate or assume the defense of the Contractor or any other person or entity, for any purpose The Contractor and his Surety shall indemnify and save Page 458 of 553 54 harmless the Owner, its officers, agents, employees, successors and assigns from all suits, demands, actions, or claims of any nature whatsoever brought or made against the Owner, its officers, agents, employees, successors or assigns from any injuries or damages sustained by any person, firm or corporation or property or resulting from or arising out of any neglect in safeguarding the Work, or through the use of unacceptable materials in the construction of the improvement, or as a result of any act or omission by the said Contractor, or from the use, misuse, storage or handling of explosives or on account of any claims or amounts recovered for any infringement of patent, trade- mark, or copyright, or from any claims or amounts arising or recovered under the Workmen's Compensation Laws, or any other law, by-law, ordinance, order or decree, and so much of the money due the said Contractor under and by virtue of his Contract, as shall be considered necessary by the Owner, may be retained or, in case no money is due, his surety shall be held until such suit or suits, action or actions, claim or claims, for injuries or damages as aforesaid, shall have been settled and satisfactory evidence to that effect furnished to the Owner. 14.3 NO PERSONAL LIABILITY OF THE PROJECT ENGINEER, OR PROJECT MANAGER: The Project Engineer, or Project Manager, is an agent of Owner and the Project Engineer, or Project Manager, his agents, heirs, successors and assigns shall have no liability to any third party as a result of his performance of under this Contract. 14.4 NO WAIVER OF LEGAL RIGHTS: Inspection by the Project Engineer, or Project Manager, or by any of his duly authorized representatives, of any order, measurement, or certificate by the Project Engineer, or Project Manager; of any order by the Owner for the payment of money; of any payment for or acceptance of any Work or any extension 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 Page 459 of 553 55 business records commonly accepted in the industry, and shall comply with the requirements of these General Conditions concerning changes to the Contract Price. b) Any Claim for changes to the Contract Time shall include the information required by these General Conditions concerning changes to the Contract Time. The Claim shall be accompanied by copies of all Contract provisions or other documents supporting the Claim and a summary of the legal and factual theories supporting the Claim. A Claim for time extension must be accompanied by a revised Construction Schedule reflecting the effects of the delay on the completion of critical activities and showing actions that the Contractor has taken or proposes to take to minimize the effects of the delay. c) The Claim shall also identify any measures the Owner can take to minimize the Claim. d) The Contractor shall submit with its Claim a notarized certificate, executed under penalties of perjury, that: • The Claim is made in good faith; • All supporting data are accurate and complete to the best of the Contractor’s knowledge and belief; • The amount requested accurately reflects that Contract adjustment for which the Contractor believes the City is liable; and • The prices stated for material and equipment are the lowest reasonably available to the 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 Page 460 of 553 56 mediator names each and the mediator shall be selected by random drawing at which the Project Engineer, or Project Manager, and the Contractor are present. No discussions or statements of the mediator may be admitted as evidence in any subsequent litigation, nor may the mediator be called to testify in any litigation. The cost of the mediator shall be shared equally by the Parties. Mediation in accordance with this section shall be a condition precedent to filing any lawsuit relating to any Claim. 15.6 OWNER'S REMEDIES: If it should appear at any time prior to final payment that Contractor has failed or refused to prosecute, or has delayed in the prosecution of, the work with diligence at a rate that assures completion of the work in full compliance with the requirements of this contract on or before the completion date, or has attempted to assign this contract or Contractor's rights under this contract, either in whole or in part, or has falsely made any representation or warranty in this contract, or has otherwise failed, refused, or delayed to perform or satisfy any other requirement of this contract or has failed to pay its debts as they come due ("Event of Default"), and has failed to cure any such Event of Default within five business days after Contractor's receipt of written notice of such Event of Default, then Owner shall have the right, at its election and without prejudice to any other remedies provided by law or equity, to pursue any one or more of the following remedies: a) Owner may require Contractor, within such reasonable time as may be fixed by Owner, to complete 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. Page 461 of 553 57 Article 17. DISPOSAL; HAZARDOUS SUBSTANCES 17.1 REMOVAL AND DISPOSAL OF STRUCTURES AND OBSTRUCTIONS: All structures or obstructions found on the site and shown on the Plans which are not to remain in place or which are not to be used in the new construction shall be removed as directed by the Project Engineer, or Project Manager. Unless specified in the Proposal, this Work will not be paid for separately but will be included in the price Proposal for that portion of the Work requiring the removal of the obstruction. All material found on the site or removed therefrom shall become the property of the Contractor unless otherwise indicated. Materials determined by the Project Engineer, or Project Manager, to be unsuitable for backfill shall be disposed of off the site at the Contractor's expense. 17.2 CLEANING UP AND RESTORATIONS: The Contractor shall clean up and lawfully dispose of all refuse or scrap materials so the site presents a neat, orderly, and workmanlike appearance at all times. The Contractor shall follow all direction from the Project Engineer, or Project Manager, as to the appearance of the site at all times. The Contractor shall remove all mud or other materials tracked or otherwise deposited on any roadway daily or as directed by the Project Engineer, or Project Manager. Upon completion of the Work, and before Final Inspection, the Contractor shall remove from the construction site and any occupied adjoining property all plants, buildings, refuse, unused materials, forming lumber, sanitary 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 Page 462 of 553 58 believes may be Hazardous Substances, Contractor shall immediately stop Work in the area affected and immediately report the condition to Project Engineer, or Project Manager, and Owner in writing. If, in fact, the materials are Hazardous Substances, the Work in the affected area shall not thereafter be resumed, except by written agreement of Owner and Contractor, until the Hazardous Substances have been removed or rendered safe by Owner in accordance with all applicable laws at Owner’s expense, and Owner has provided reasonable evidence thereof to Contractor. The Work in the affected area shall be resumed in the absence of Hazardous Substances, when any Hazardous Substances have been rendered harmless, or when the conditions in the preceding sentence have been satisfied. Unless such materials were introduced to the Project by Contractor, Subcontractors, Sub- subcontractors, Suppliers, or their respective agents, representatives and employees, Owner shall be responsible for all reasonable costs related to any testing, removal, encapsulation, or remediation of any such substances or materials, and any additional cost of the Work arising out of any delay in the Work caused thereby. Except as to such materials introduced to the Project by Contractor, Subcontractors, Sub- subcontractors, Suppliers, or their respective agents, representatives and employees, any delays arising out of such testing, removal, encapsulation, or remediation shall be an Owner Delay, but only to the extent that the same causes actual delay in the Work that satisfies all the requirements necessary to be an Owner Delay under Section 3.4.1; provided, however, that if the Agreement is a GMGC Agreement, any increases in the Cost of Work (and any associated Construction Fee and General Conditions fee, if applicable) in connection with any such Owner Delay shall be charged to the Contingency, and an increase in the Guaranteed Maximum Price shall be allowed, if at all, only to the extent that such amounts exceed the balance of the Contingency. 17.9 ORDINARY COURSE MATERIALS: Nothing contained herein shall be deemed to preclude Contractor from using and bringing onto the Property materials and substances (which are otherwise Hazardous Substances) used in 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 Page 463 of 553 59 Drawings. (b) The Contract Documents are intended to be complementary, and Work called for on any Drawing and not mentioned in the Specifications, or Work described in the Specifications and not shown on any Drawing, is included under the Contract as if set forth in both the Specifications and Drawings. (c) Material and workmanship specified by the number, symbol, or title of a referenced standard shall comply with the latest edition or revision thereof and any amendments or supplements thereto in effect on the date the Proposal is received except where a particular issue or edition of a publication is indicated. In case of a conflict between the Drawings, Specifications and the referenced standard, the more stringent shall govern, as determined by the Project Engineer, or Project Manager. (d) If labor, materials or equipment, although not described by the Drawings or Specifications, is required to successfully complete the Work and can reasonably be inferred by competent contractors by virtue of common knowledge or customary practice in the construction industry from the Contract Documents as being necessary to produce the intended result, the Contractor shall perform that work or provide the materials or equipment as if they were specified. (e) Contractor shall carefully study the Contract Documents and, if Contractor identifies any discrepancies found between the Drawings and Specifications and site conditions and any adjacent work on which the Work is dependent and any errors or omissions in the Drawings or Specifications, shall promptly notify the Project Engineer, or Project Manager, of such discrepancies, errors, or omissions in writing, and any necessary changes shall be accomplished by issuance of an appropriate Change Order or Field 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. Page 464 of 553 60 The Contractor shall review and attempt to answer requests for information or clarification from its Subcontractors and Suppliers. Such requests shall be encompassed within the Contractor’s request for information or clarification by the Contractor to the Project Engineer, or Project Manager, if the Contractor is unable to answer such requests. 19.5 DIMENSIONS: Figured dimensions shall govern over scaled dimensions. 19.6 SHOP DRAWINGS (a) The Plans will be supplemented by Shop Drawings as necessary to adequately control the Work or as specified. Shop Drawings are not part of the Contract documents. Shop Drawings may consist of drawings, diagrams, illustrations, schedules, calculations, and other data prepared by the Contractor, Subcontractor, manufacturer, supplier, or distributor, which will illustrate how specific portions of the Work shall be fabricated and/or installed in accordance with the Plan details and Specifications. The Contractor shall provide Shop Drawings, settings, schedules, and such other Drawings as may be necessary for the prosecution of the Work in the shop and in the field as required by the Drawings, Specifications or Project Engineer, or Project Manager’s instructions. (b) Any Work done prior to the Owner's approval of Shop Drawings will be at the Contractor's risk. (c) The Project Engineer, or Project Manager, may request additional details and require the Contractor to make changes in the design which are necessary to conform to the provisions and intent of these 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. Anyinformation 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 actionwill 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; orRejected. (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. Page 465 of 553 61 (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 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 Page 466 of 553 62 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. 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 Page 467 of 553 63 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. 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 Page 468 of 553 64 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 ofthe Site shall be a Dispute and shall, at the request of either Contractor or Owner, be submitted to Dispute Resolution. Article 25. WAIVER 25.1 WAIVER: The waiver of any breach of a term, provision or requirement of this Contract, including the failure to insist on strict compliance or to enforce any right or remedy, shall not be construed or deemed as a waiver of: any subsequent breach of such term, provision or requirement or of any other term, provision or requirement; any right to insist on strict compliance with any term, provision or requirement; or any right to enforce any right or remedy with respect to that breach or any other prior, contemporaneous, or subsequent breach. 25.2 NO WAIVER: No inspection by the Project Engineer, or Project Manager, any other person acting on the Owner's behalf, nor any order, measurement, estimate or certificate by the Architect, nor any order by the Owner for the payment of money, nor any payment for or acceptance of any Work, nor any extension of time, nor any possession taken by the Owner, shall operate as a waiver of any right of Owner arising out of or related to the Contract. No waiver of any breach of the Contract shall be construed as a waiver of any other or subsequent breach thereof. Article 26. OTHER CONDITIONS Page 469 of 553 65 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 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. Page 470 of 553 66 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 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. Page 471 of 553 67 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 472 of 553 1 31.0 Special Provisions. The following specifications apply directly to the contract bid items. 31.01 MOBILIZATION General This work consists of the mobilization of personnel, equipment and supplies at the project site in preparation for work on the planned project as shown in Attachment A: Project Map. This item shall also include the establishment of the Contractor's offices, buildings and other necessary facilities, and all other costs incurred or labor and operations which must be performed prior to beginning the other items under the Contract. Method of Measurement and Basis of Payment This work will be paid for at the contract unit price per LUMP SUM for MOBILIZATION. This unit price shall include all labor, materials, and equipment necessary to complete the work as described herein. Measurement and payment shall be made in accordance with Article 626.02 of the 2022 edition of the Colorado Department of Transportation Standard Specification for Road and Bridge Construction. 31.02 ALLEY GRADING (11’ WIDE) (Non-Asphalt Milling Alleys) General This item shall consist of surveying, grading and re-compacting alleys to improve drainage and rideability. Specifically, this bid item is to grade alleys that did not receive millings from the 2023 Mill and Overlay Project. Construction Requirements Contractor shall grade straight line profiles from bounding adjacent street to bounding adjacent street, with smooth transitions where crest and sag curves are necessary. Contractor shall survey two points with leveling rod and total station on each alley to ensure positive fall to the street or alley inlets as needed. Grading shall result in a troughed alley cross-section, with each half of the alley pitched between 5.0% and 7.0% 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 private access facilities (driveways, sidewalks, fence gates, etc.) throughout the alley and to match the cross-section at paved alley entrance aprons. Where driveways are not immediately adjacent to the 11’ travel path, the contractor shall make necessary grading adjustm ents outside the 11’ to match the existing driveway grades within the alley right of way. Windrows or berms created from grading shall not be higher that 1” in front of driveways. Contractor shall remove excess alley base in front of driveways and charge to REMOVAL AND DISPOSAL OF EXCESS ALLEY MATERIAL. 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 and have locates on the ground. The Contractor shall use extreme caution around areas that have locates down. All damage to existing utility lines or adjacent facilities shall be repaired promptly at the Contractor’s expense. Page 473 of 553 2 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 to the satisfaction of the Engineer or until the top 6” below the finished surface has a density of at least 95 percent of the maximum as determined by AASHTO T 180 modified by CP 23. The moisture content shall be at ± 2 percent of optimum moisture content. Alleys shall be compacted immediately after grading is complete. After compaction, Contractor shall perform a proof roll under the supervision of the Engineer or Inspector. The proof roll shall be performed with a suitable piece of construction equipment that exerts a minimum 18-kip axle load. If an alley does not pass a proof roll test, then the Inspector or Engineer will mark out the area that didn’t pass with marking paint. The Engineer will then determine the proper alley improvement necessary. Additional alley improvement measures shall be the following bid items: • REMOVAL & DISPOSAL OF UNSUITABLE MATERIAL • FURNISH & PLACE ROADWAY BASE • HAUL & PLACE ASPHALT MILLINGS • INSTALL AGGREGATE PAN • INSTALL AGGREGATE • INSTALL RECYCLE ALLEY BASE Method of Measurement and Basis of Payment This work shall be paid for as ALLEY GRADING (11’ WIDE) (Non-Asphalt Milling Alleys) at the contract unit price per LINEAL FOOT. ALLEY GRADING (11’ WIDE) (Non-Asphalt Milling Alleys) 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 (11’ WIDE) (Non-Asphalt Milling Alleys). The contract unit price shall include any surveying or layout necessary to meet the grading requirements. 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 (11’ WIDE) (Non-Asphalt Milling Alleys). Grading outside the 11’ width to tie into driveways, sidewalks, or other private access facilities shall be incidental to ALLEY GRADING (11’ WIDE) (Non-Asphalt Milling Alleys). An alley will not be accepted as complete until it is graded properly and had the stabilizer applied. If an alley deteriorates after it is graded and prior to the stabilizer application, the contractor shall re-grade at no additional cost to the contract prior to stabilizer application. Removal of weeds, grass, shrubs, or other plant material within the 11’ grading area shall be included in the cost ALLEY GRADING (11’ WIDE) (Non-Asphalt Milling Alleys). 31.03 ALLEY GRADING (11’ WIDE) (Asphalt Milling Alleys) General This item shall consist of surveying, grading and re-compacting alleys to improve drainage and rideability. Specifically, this bid item is to grade the alleys that received asphalt millings Page 474 of 553 3 from the 2023 mill and overlay project. The intent is to ensure that these alleys are surveyed, graded, and compacted properly. These alleys and linear footage of grading length shall be determined and chosen by the City Engineer. Construction Requirements Contractor shall grade straight line profiles from bounding adjacent street to bounding adjacent street, with smooth transitions where crest and sag curves are necessary. Contractor shall survey two points with leveling rod and total station on each alley to ensure positive fall to the street or alley inlets as needed. Grading shall result in a troughed alley cross-section, with each half of the alley pitched between 5.0% and 7.0% 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 private access facilities (driveways, sidewalks, fence gates, etc.) throughout the alley and to match the cross-section at paved alley entrance aprons. Where driveways are not immediately adjacent to the 11’ travel path, the contractor shall make necessary grading adjustments outside the 11’ to match the existing driveway grades within the alley right of way. Windrows or berms created from grading shall not be higher that 1” in front of driveways. Contractor shall remove excess alley base in front of driveways and charge to REMOVAL AND DISPOSAL OF EXCESS ALLEY MATERIAL. 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 and have locates on the ground. The Contractor shall use extreme caution around areas that have locates down. All damage to existing utility lines or adjacent facilities shall be repaired promptly at the Contractor’s expense. 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 to the satisfaction of the Engineer or until the top 6” below the finished surface has a density of at least 95 percent of the maximum as determined by AASHTO T 180 modified by CP 23. The moisture content shall be at ± 2 percent of optimum moisture content. Alleys shall be compacted immediately after grading is complete. After compaction, Contractor shall perform a proof roll under the supervision of the Engineer or Inspector. The proof roll shall be performed with a suitable piece of construction equipment that exerts a minimum 18-kip axle load. If an alley does not pass a proof roll test, then the Inspector or Engineer will mark out the area that didn’t pass with marking paint. The Engineer will then determine the proper alley improvement necessary. Method of Measurement and Basis of Payment This work shall be paid for as ALLEY GRADING (11’ WIDE) (Asphalt Milling Alleys) at the contract unit price per LINEAL FOOT. ALLEY GRADING (11’ WIDE) (Asphalt Milling Alleys) 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 (11’ WIDE) Page 475 of 553 4 (Asphalt Milling Alleys). The contract unit price shall include any surveying or layout necessary to meet the grading requirements. 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 (11’ WIDE) (Asphalt Milling Alleys). Grading outside the 11’ width to tie into driveways, sidewalks, or other private access facilities shall be incidental to ALLEY GRADING (11’ WIDE) (Asphalt Milling Alleys). Removal of weeds, grass, shrubs, or other plant material within the 11’ grading area shall be included in the cost ALLEY GRADING (11’ WIDE) (Asphalt Milling Alleys). 31.04 REMOVAL AND DISPOSAL OF EXCESS ALLEY BASE General This item shall consist of removal and disposal of excess alley material generated by grading only. Excess Alley Material is collected by removing berms (if any) that are created in front of alley garage pads, or along the edges of the alley, as a result of grading the “V” Channel. For a standard 600’ alley within the City of Englewood, this amount is approximately 0.5 cubic yards per alley based off past year’s projects. For amounts greater than 0.5 CY/alley, Contractor must provide justification through documentation of truckloads or soil volume calculations. Construction Requirements Spoils generated by alley grading shall be stockpiled, removed before the end of the working day, and disposed of offsite by the contractor. Contractor shall at their digression, keep track of the excess alley base generated as some bid items include soil removal in their price. This may require the contractor to perform soil volume calculations to determine the amount in their truck that is not base material and can’t be billed for. Disposal is assumed to utilize a 5 cubic yard truck. Measurement and Payment This work shall be paid for as REMOVAL AND DISPOSAL OF EXCESS ALLEY BASE per CUBIC YARD. This unit price shall include all labor, material, and equipment necessary to complete the work as described herein. The measurement shall be 0.5 CY per alley where material is removed, unless the contractor supplies detailed information regarding the actual soil volume removed. Contractor and City shall come to an agreed-to volume-per-load of material. All truck loads shall be verified for fullness by the Engineer or Inspector prior to leaving the site. If no removal and disposal of excess alley material was performed on an alley, no payment shall be made for that alley. 31.05 REMOVAL AND DISPOSAL OF UNSUITABLE ALLEY BASE General This item is for the removal and disposal of in-situ soil amounts removed for alley improvement bid items: - HAUL & PLACE ASPHALT MILLINGS - INSTALL AGGREGATE PAN Page 476 of 553 5 - INSTALL AGGREGATE OR as directed by Inspector or Engineer. Truck loads will not be considered. Construction Requirements Contractor shall remove unsuitable material down to the depth designated by the Engineer or Inspector. 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. Disposal is assumed to utilize a 5 cubic yard truck. Contractor may temporarily store limited material at the City Yard in Englewood with the City’s permission. The City may elect to keep some of the unsuitable alley base stored in the City Yard at the City’s digression. Contractor shall plan and or be prepared to dispose of all unsuitable alley base at a disposal site outside of the Englewood City Limits. All unsuitable base not kept on the City yard must be disposed of by the contractor outside of the Englewood City Limits. Measurement and Payment This work shall be paid for as REMOVAL AND DISPOSAL OF UNSUITABLE ALLEY BASE at the contract unit price per CUBIC YARD. This unit price shall include all labor, material, and equipment necessary to complete the work as described herein. Quantity for payment shall be based on the in-situ volume of material designated for removal by the Engineer or Inspector. 31.06 RECYCLE ALLEY BASE General This item is intended for the relocation, placement, and compaction of suitable alley base material from one alley to another. Recycled Alley Base is used to raise alleys to ensure proper drainage, or to fill potholes that become visible due to the soil stabilizer application. Construction Requirements At the discretion of the engineer, the contractor shall stockpile excess suitable 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. Recycled alley base shall be installed to match existing alley grade. Stockpiled material shall be clearly and safely cordoned off. The contractor shall submit a plan to the engineer of how excess material shall be counted so as not to interfere with quantities of material hauled off site and disposed of. The contractor shall supply to the engineer an up-to-date weekly quantification of material re- used. The contractor shall supply detailed information regarding the hauling equipment’s capacity, shall allow City staff to measure the equipment or loads at any time, and shall come to an agreed-to volume-per-load of material. All loads shall be verified for fullness by the Engineer or Inspector prior to being transported. Page 477 of 553 6 City staff will specify a depth of placement on a case-by-case basis, based on site conditions. Depth shall be specified between 2” and 4”. Recycled material shall be installed to match existing alley grade. Recycled material shall be installed and compacted to conform to the slopes and grades for alleys as shown on the plans. Method of Measurement and Basis of Payment This work will be paid for as RECYCLE ALLEY 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. No change in price shall be made for material hauling distance. Material moved within a single alley shall not be paid for as RECYCLE ALLEY BASE but shall be included in the cost of ALLEY GRADING (11’ WIDE) (Non-Asphalt Milling Alleys) 31.07 HAUL & PLACE ASPHALT MILLINGS General This item shall consist of loading asphalt millings from the City of Englewood Service Yard, delivering to a designated alley, and grading the millings. The City’s Service Center is located at 2800 S Platte River Drive in Englewood, CO. Construction Requirements Contractor shall coordinate with the Engineer and Service Center staff to gain access to the service center where the millings are stockpiled. City equipment will be available to load millings onto a Contractor provided truck. Contractor shall load and haul the millings from the City’s service yard to the designated alley. The contractor shall supply detailed information regarding the hauling truck’s capacity, shall allow City staff to measure the truck’s bed or hauled material at any time, and shall come to an agreed-to volume-per-load of material. All truck loads shall be verified for fullness by the Engineer or Inspector prior to leaving the site. City Inspector or Engineer will specify a depth on a case-by-case basis, based on site conditions. Depth shall be specified between 2” and 4”. Asphalt millings shall be graded and compacted to the same requirements specified under the ALLEY GRADING (11’ WIDE) item. Grading and compaction shall be considered incidental to this bid item. Material shall be installed at the graded alley elevation. Method of Measurement and Basis of Payment This work shall be paid for as HAUL & PLACE ASPHALT MILLINGS at the contract unit price per CY for the amount of material placed. The unit price shall include all labor, equipment, and material necessary to complete the work as described herein. Quantity for payment shall be the based on the in-place volume of material installed and compacted. 31.08 INSTALL AGGREGATE PAN General Page 478 of 553 7 This item shall consist of furnishing, placing, and compacting an aggregate pan in alley centerline as shown on the plans or as designated by the Inspector or Engineer. Material Furnished aggregate must be CDOT Class A Filter Material, (1.5” Crushed Rock) according to Article 703.09 of the Colorado Department of Transportation Standard Specifications for Road and Bridge Construction (2022). Construction Requirements Soil excavation shall be removed and disposed of as the bid item: Removal and Disposal of Unsuitable Alley Base. Contractor shall excavate a trench centered at the alley flowline which is 6” in depth and 18” in width. Contractor shall furnish the material and place at locations designated by the engineer. Contractor shall compact the aggregate to the satisfaction of the Engineer by means of a vibratory roller. Other acceptable means of compaction would be two tire passes over the rock with a water truck that is no less than half full. Method of Measurement and Basis of Payment This work shall be paid for as INSTALL AGGREGATE PAN at the contract unit price per LF for the length of aggregate pan installed. The unit price shall include all labor, equipment, and material necessary to complete the work as described herein. Contractor shall supply load tickets for all material placed. 31.09 INSTALL AGGREGATE General This item shall consist of furnishing, placing, and compacting aggregate in alleys as designated by the Inspector or Engineer. The intent of this bid item to install crushed rock in sag curves with no drain. The rock will essentially act as a large French drain and give ponded water somewhere to collect and filter into the subgrade. Material Furnished aggregate must be CDOT Class A Filter Material, (1.5” Crushed Rock) according to Article 703.09 of the Colorado Department of Transportation Standard Specifications for Road and Bridge Construction (2022). Construction Requirements Contractor shall furnish the material and place at locations designated by the engineer. Contractor shall compact the aggregate to the satisfaction of the Engineer by means of a vibratory roller. Page 479 of 553 8 Soil excavation shall be removed and disposed of as the bid item: Removal and Disposal of Unsuitable Alley Base. Method of Measurement and Basis of Payment This work shall be paid for as INSTALL AGGREGATE at the contract unit price per CY (cubic yard) for the volume of aggregate installed. The unit price shall include all labor, equipment, and material necessary to complete the work as described herein. Contractor shall supply load tickets for all material placed. 31.10 APPLY SOIL STABILIZER (.2 gal/sy) General This item shall consist of applying a magnesium chloride dust control and soil stabilization product. Typical application covers 28 alleys per truck at .20 gallons per square yard. Contractor shall not apply stabilizer on millings. Contractor may be required to create a map of alleys suitable for soil stabilizer application and shall be responsible for ensuring the application is not applied on millings in the field. Material Contractor shall use Envirotech Services, Inc. Durablend™ or approved equivalent. Durablend™ application rate is 0.20 gallons per square yard. 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. Contractor shall make efforts to ensure none of the product ends up on the streets or sidewalks. If any of the product ends up on the street or sidewalk, the contractor shall clean it immediately after the application process is complete. Contractor shall ensure that the application is applied 1’ away from the back of sidewalks. Puddles are a sign that the alley wasn’t graded properly and there are low spots. The contractor will be notified of any puddles seen by the inspector. Due to the typically small size of stabilizer ponding, the puddles shall be filled with RECYLED ALLEY BASE utilizing 5 gal buckets. Delivery Tickets shall be provided to the Engineer on a daily basis which verify the quantity (volume) 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 STABILIZER (.2 gal/sy) at the contract unit price per SY. This unit price shall include all labor, material, and equipment necessary to complete the Page 480 of 553 9 work described herein. Payment will be contingent upon verification of the specified application rate. 31.11 STRUCTURE ADJUSTMENT (LOWERING) General This work shall consist of adjusting existing utility manhole structures and frames. 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 1’ below the bottom of the existing frame. 31.12 STRUCTURE ADJUSTMENT (RAISING) General This work shall consist of adjusting existing manhole 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 Page 481 of 553 10 Contractor shall fully expose the top of the manhole or inlet frame and lid. Contractor shall cle ar 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 height 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 structure up to 1’ above the existing structure grade. 31.13 TREE AND BUSH TRIMMING General This work shall consist of trimming miscellaneous bushes and trees that extend into the alley right of way as shown on the plans or as designated by the City Engineer or City Inspector. Construction Requirements Contractor shall trim all trees, bushes, and brush per the typical alley section. 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. Tree and bush trimming measurement shall include trimming on both sides of the alley. All trimmings must be removed and disposed of offsite at the end of each workday. Contractor shall use hedgers, clippers, pole saws, or chain saws. Contractor must get approval from Engineer prior to the use of any other method of vegetation control not listed in this specification. Contractor shall cut branches of bushes and trees flush. Contractor shall not cut trees outside of the ROW or on the private side of fences. Contractor shall be responsible for damages done to vegetation on private property. Method of Measurement and Basis of Payment This work shall be paid for as TREE AND BUSH TRIMMING at the contract unit price per HOUR. This unit price shall include all labor, equipment, and material necessary to complete the work described herein. The unit price shall include trimming any branches which hang into the alley from above 15’. 31.14 WEED REMOVAL General This work shall consist of removing and disposing of weeds located in the alley centerlines. This bid item only applies to alleys that are not scheduled for grading. Construction Requirements Attachment A – Project Map provides a list of alleys that have weeds in their centerlines that need to be removed. This bid item shall begin after all alleys have been graded. Weed removal and offsite disposal shall be performed with the contractors means and methods without altering the channel centerline. If the channel centerline is affected during weed removal, contractor shall ensure the v-channel is reshaped and compacted to the typical alley section as shown on the cover of the plans Attachment A – Project Map. Page 482 of 553 11 Method of Measurement and Basis of Payment This work shall be paid for as WEED REMOVAL at the contract unit price per LINEAR FOOT (LF) as marked out by the inspector in the field. This unit price shall include all labor, equipment, and material necessary to complete the work described herein. 31.15 EROSION & SEDIMENT CONTROL General 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; - Rock (curb) Socks (x40 minimum) - Inlet Protection Device (x6) 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. 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. Contractor shall place rock (curb) socks on the downstream sides of each alley opening during grading and stabilization operations. 20 Alleys should be stabilized at a time, so the Contractor can expect a minimum of 40 rock (curb) socks. Known inlets to be protected are shown on the plans denoted as a blue square. If alley inlet is found that is not marked on the plan sheet, Contractor shall protect the inlet prior to and during construction operations. Other erosion control measures shall be at the contractor’s discretion to ensure sediment from the project site does not leave the site. 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. Results to be documented in writing. 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. 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 Page 483 of 553 12 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. 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. Payment for EROSION & SEDIMENT CONTROL as a lump sum will be made as a percentage of the total work completed, rounded to the nearest 10%. 32.16 WORK ZONE TRAFFIC CONTROL 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. Traffic control is expected to be limited to traffic cones and public notifications attached to traffic cones. Material All traffic control equipment shall conform to applicable portions of the most recent edition of the Manual on Uniform Traffic Control Devices. - Large Traffic Cones (x2 minimum). One at each end of the alley being worked on. - Large Traffic Cones. (x40 minimum) One at each end of the alleys during stabilizer application. - Small to Medium sized traffic cones (x10 minimum) around equipment parked on street. Construction Requirements The City has provided the minimum required traffic control above based on working one alley at a time and applying stabilizer to 20 alleys at a time. Contractor will need to adjust number of traffic devices depending on how many alleys they work at a time. Contractor shall submit a traffic control plan at least 10 days prior to construction. During grading operations, alleys must remain open to local traffic unless otherwise approved by the Engineer. Contractor will only need to close alleys during the application of the stabilizer. Contractor will be required to post information signs informing the public of the upcoming alley work at the entrances of alleys. Signs shall be posted at each alley entrance at least 48 hours prior and not more than 72 hours prior to performing any work in the alley. Signs must be weather resistant and shall be a minimum of 24” x 36” unless otherwise approved by the Engineer. 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. Updated signs shall be placed for each operation that passes through or disrupts accessibility to the alleys. Signs must contain the following information: Page 484 of 553 13 • City of Englewood Logo • Contractor Name or Logo with contractor phone number • What work will be taking place • What Date the work will be taking place Information signs must be approved by the Engineer prior to use. Signs can be placed on Traffic Cones at the entrances of each alley. Method of Measurement and Basis of Payment This work will be paid for as WORK ZONE TRAFFIC CONTROL 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. 31.17 MINOR CONTRACT REVISIONS General Miscellaneous modifications in the work, ordered by the Project Engineer in the form of a written or verbal field order, will be considered a minor contract revision. If the contractor feels that a field order issued by the Engineer entitles the contractor to a change in the total contract price or time, or both, (i.e. the contractor feels that the field order involves costs over and above the amount available in the Minor Contract Revisions bid item) then the Contractor shall notify the Engineer, in writing, within 5 days after receipt of the field order. The Contractor shall not execute any such field order changes ordered by the Engineer pending the receipt of a written Change Order document executed either by the Director of Public Works, City Manager or Mayor authorizing an increase in the total contract price. Any such work completed by the contractor prior to receipt of an executed Change Order will be at the contractor’s risk and be subject to removal by the contractor should a Change Order not be approved and executed by the City Manager or Mayor for such work. Page 485 of 553 N1. ALL WORK IN THE RIGHT OF WAY SHALL BE PER THE CONSTRUCTION STANDARDS AND CONCRETE SPECIFICATIONS FORTHE CITY OF ENGLEWOOD, COLORADO AND THE CITY OF ENGLEWOOD STORM DRAINAGE CRITERIA MANUAL. CONTACT THEPUBLIC WORKS DEPARTMENT AT (303)-762-2500 FOR ADDITIONAL INFORMATION.2.THE CONTRACTOR IS RESPONSIBLE FOR THE LOCATION AND PROTECTION OF ALL UTILITIES. CALL 811 PRIOR TOCONSTRUCTION.3.ONLY RUBBER TRACK EXCAVATORS ARE TO BE USED. CONTRACTOR IS FINANCIALLY RESPONSIBLE FOR ANY DAMAGESDONE TO ROADWAY, PARKING LOT AND WALKWAYS.4.ANY OCCUPANCY OR CONSTRUCTION ACTIVITY ON THE PUBLIC RIGHT-OF-WAY REQUIRES A PERMIT FROM THE PUBLICWORKS DEPARTMENT. ANY WORK CONDUCTED WITHOUT A PERMIT IS SUBJECT TO A DOUBLE FEE.5.REQUESTS FOR INSPECTION SHALL BE MADE PRIOR TO 12:00 PM THE DAY PRIOR TO THE INSPECTION (NO EXCEPTIONS).6.ALL TRAFFIC CONTROL PLANS, DEVICES AND OPERATIONS SHALL BE IN CONFORMANCE WITH THE LATEST MANUAL OFUNIFORM TRAFFIC CONTROL DEVICES.7.WORK HOURS IN THE PUBLIC RIGHT OF WAY ARE MONDAY-FRIDAY 7:00 AM TO 7:00 PM. WORK HOURS FOR ARTERIALS ANDCOLLECTOR STREETS WILL BE 9:00 AM TO 3:30 PM. PUBLIC WORKS MUST BE NOTIFIED ONE WEEK PRIOR TO CONSTRUCTIONFOR ANY WORK SCHEDULED ON A SATURDAY.8.NO WORK IS ALLOWED BETWEEN THE HOURS OF 7:00 PM AND 7:00 AM PER ENGLEWOOD MUNICIPAL CODE SECTION 6-2-5(E)OR ON SUNDAYS OR ANY RECOGNIZED CITY HOLIDAY.9.ALL DAMAGE TO EXISTING PUBLIC IMPROVEMENTS CAUSED BY THE CONTRACTOR'S OPERATIONS, AS DETERMINED BY THECITY OF ENGLEWOOD INSPECTOR, WILL BE REPAIRED BY THE CONTRACTOR TO CITY STANDARDS.10.THE USE OF THE CITY OF ENGLEWOOD'S RIGHTS-OF-WAY FOR THE PURPOSE OF STAGING IS STRICTLY FORBIDDEN.STAGING IS DEFINED AS THE STORAGE OF (BUT NOT LIMITED TO) MATERIAL, EQUIPMENT, OR VEHICLES OUTSIDE OF THEWORK ZONE.11.CONSTRUCTION FENCING, INCLUDING GATES SHALL NOT ENCROACH OR OPEN INTO THE PUBLIC RIGHT OF WAY.12.CONTRACTOR SHALL NOTIFY ALL ADJACENT PROPERTY OWNERS OF ANY ROAD OR ALLEY CLOSURES OR PARKINGRESTRICTIONS THAT IMPACTS THE ADJACENT PROPERTIES BY. NOTIFICATION SHALL INCLUDE A DESCRIPTION OF THEWORK, THE TIMES AND DURATION THAT THE CLOSURE OR RESTRICTIONS WILL BE IN EFFECT AND THE COMPANY NAME ANDEMERGENCY CONTACT NUMBER. CONTRACTOR SHALL SUBMIT THEIR NOTIFICATION FLYER WITH THE PERMIT APPLICATIONFOR APPROVAL.13.ALL BUILDING AND SITE DRAINAGE MUST BE DIRECTED TO STREET OR ALLEY. NO DRAINAGE IS PERMITTED TO FLOW ONTOADJACENT PROPERTIES.14.SITE GRADING SHALL MAINTAIN CONVEYANCE OF ALL EXISTING, TRIBUTARY OFF-SITE RUNOFF.15.ALL MONUMENTED LOT CORNERS SHALL BE PROTECTED DURING CONSTRUCTION OR REPLACED BY A COLORADO LICENSEDPROFESSIONAL LAND SURVEYOR IF DAMAGED.16.NO STEEL OR METAL TRACKED VEHICLES SHALL BE PERMITTED ON STREETS UNLESS APPROVED BY THE CITY. THE CITYMAY REQUIRE THAT ANY SCARRED AREA TO BE RESTORED AT THE CONTRACTOR'S EXPENSE. RUBBER TRACKED VEHICLESARE ALLOWED.17.ALL EXCAVATED MATERIAL SHALL BE STOCKPILED IN A MANNER THAT DOES NOT ENDANGER THE WORK OR WORKERS. ALLWORK SHALL BE PROPERLY BACKFILLED PRIOR TO THE END OF THE WORKDAY. NO OPEN HOLES ARE ALLOWEDOVERNIGHT. THE CONTRACTOR SHALL DISPOSE OF THE REMOVED MATERIALS DIRECTLY INTO TRUCKS OR BINS. PILING OFREMOVED ASPHALT WITHIN THE STREET RIGHT-OF-WAY OUTSIDE OF NORMAL WORKING HOURS WILL NOT BE ALLOWED.18.MOISTURE DENSITY CONTROL SHALL BE APPLIED FULL DEPTH FOR ALL EMBANKMENTS, SUBGRADE RECONDITIONING ANDTRENCH BACKFILL. BACKFILL SHALL BE COMPACTED TO A MINIMUM OF 95% STANDARD PROCTOR DENSITY (AASHTO T-180).THE CITY OF ENGLEWOOD WILL TEST THE COMPACTURE OF THE SOIL AT ITS OWN EXPENSE.19.ERECT AND MAINTAIN ADEQUATE EROSION PROTECTION FOR THE DURATION OF THE PROJECT. NO MATERIAL WILL BEALLOWED TO LEAVE SITE. ALL EROSION CONTROL BMP'S SHALL BE PER THE LATEST ISSUE OF VOLUME 3 OF THE URBANSTORM DRAINAGE CRITERIA MANUAL AS APPROVED BY THE CITY.20.THE CONTRACTOR SHALL BE RESPONSIBLE FOR CLEANING ALL PAVED AREAS OF MUD AND DEBRIS DUE TO CONSTRUCTIONACTIVITIES ON A DAILY BASIS OR AS DIRECTED BY THE CITY OF ENGLEWOOD.21.EROSION CONTROL BMP'S SHALL REMAIN IN PLACE AND IN WORKING CONDITION UNTIL FINAL STABILIZATION OF THE SITE ISACHIEVED.22.SOIL ON THE SITE SHALL NOT BE LEFT EXPOSED FOR MORE THAN 60 DAYS. ALL DISTURBED AREAS ON THE SITE SHALL BESTABILIZED WITH SEEDING/MULCHING, PAVING OR OTHER APPROVED METHOD.23.ALL TEMPORARY TRAFFIC CONTROL DEVICES SHALL BE REMOVED AS SOON AS PRACTICAL WHEN THEY ARE NO LONGERNEEDED. WHEN WORK IS SUSPENDED FOR SHORT PERIODS OF TIME, TRAFFIC CONTROL DEVICES THAT ARE NO LONGERAPPROPRIATE SHALL BE REMOVED OR COVERED.24. FAILURE TO COMPLY WITH ANY CITY CODES, RULES AND REGULATIONS MAY RESULT IN THE STOPPAGE OF WORK, AND/ORA SUMMONS ISSUED BY CODE ENFORCEMENT.25. IF ROOTS ARE ENCOUNTERED, CUT OUT FLUSH AND DISPOSE.OVERALL SITE PLANSCALE: NTSSTANDARD CONSTRUCTION NOTES:JURISDICTION:ENGINEER:TIM HOOS, P.E.CITY OF ENGLEWOOD1000 ENGLEWOOD PARKWAYENGLEWOOD, CO 80110303.762.2500CITY OF ENGLEWOOD1000 ENGLEWOOD PARKWAYENGLEWOOD, CO 80110303.762.2635Approved By:Director of Public WorksCapital Projects and Engineering ManagerTraffic EngineerDateDateDate2021 Alley Grading & StabilizationZone 3, Englewood, ColoradoALLEY GRADING STEPS:1.TREE TRIMMINGTREE AND BUSH TRIMMING2.GRADE ALLEYS AND PROOF ROLL EACH ALLEYALLEY GRADING (11’ WIDE) REMOVAL & DISPOSAL OF EXCESS ALLEY MATERIALEXISTING CALL OUTS WERE BASED ON A VISUAL INSPECTION OF THE ALLEYS IN THE WORST SHAPE. IMPROVEMENTS TO ALLEYS WITHOUT A CALL OUT SHALL BE DETERMINED BY THE RESULT OF THEPROOF ROLL OF THAT ALLEY. IF AN ALLEY FAILS A PROOF ROLL, THE CITY ENGINEER OR CITY INSPECTOR SHALLDETERMINE THE ADDITIONAL ALLEY IMPROVEMENT NEEDED.3.PERFORM ALLEY IMPROVEMENTS AS IDENTIFIED AFTER PROOF ROLLREMOVAL & DISPOSAL OF UNSUITABLE MATERIALFURNISH & PLACE ROADWAY BASEHAUL & PLACE ASPHALT MILLINGS (SUPPLIED BY CITY)INSTALL RECYCLE ALLEY BASEINSTALL AGGREGATE PAN4.PERFORM ANY NECESSARY STRUCTURE ADJUSTMENTSSTRUCTURE ADJUSTMENT (LOWERING)STRUCTURE ADJUSTMENT (RAISING)5.APPLY STABILIZER APPLY SOIL STABILIZERLIST OF SHEETS:1COVERSHEET2ZONE 3 MAPPage 486 of 553 ! ! !!! !! ! ! !!! ! ! !! !!! ! !!! !! ! !! ! ! !!! !!!! !! !! !!! !!! ! !!! ! ! ! ! ! ! !! ! ! ! !! !! ! !! !!! ! ! ! ! ! ! !! !! !! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! !! ! !! ! ! !! ! ! ! !!! ! !! ! ! !!! ! ! ! !!!! !! !! ! ! ** **** 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 487 of 553 !! ! ! ! ! ! ! ! ! !! ! ! !! !!! ! ! ! ! ! ! ! !! ! !!! ! !! ! ! !!! ! ! !!! ! ! !!!! !!! ! ! ! ! ! ! ! !! ! !!! ! ! ! !! ! !! ! ! ! !! ! ! ! ! !! ! ! ! ! ! ! ! !! ! ! ! ! !!! !! ! ! ! ! ! "" " "CITYDITCHO X F O R D P R I N C E T O N Q U I N C Y R A D C L I F F S TA N F O R D T U F T S U N I O N L A Y T O N C H E N A N G O G R A N D B E L L E V I E WBROADWAYSANTA FE DRKALAMATHHURONDELAWAREWINDERMERENAVAJOJASONFOXBANNOCKACOMACHEROKEEELATIGALAPAGOINCALIPANHURONDELAWAREJASONINCABANNOCK41004200430044001200 1000 800 600 400 200 4500460047001500 480049005000PRINTED: 2019-08-30 13:17 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 1 9 Typical Alley Section 11.0' Average Width 16' ROW (typical)ROWROWMinimum CrossfallMaximum Crossfall = 2.5%= 4.5% Quantities Number of alleys = 58Number of inlets = 4±Number of ma nholes = 10 9±Total length = 33,980 ft ± (unpaved alleys)Legend Inlet" Street Alley (unpaved) !Manhole Alley (paved) DATE: Aug ust 30, 2019 ¶N SCALE:1 inch = 750 feet Page 488 of 553 YALE MANSFIELD LEHIGH KENYON HAMPDEN GIRARD DARTMOUTH EASTMAN FLOYD NASSAU AMHERST BATES CORNELL BROADWAYHURONGALAPAGOFOXELATIDELAWARECHEROKEEBANNOCKACOMAINCAHAMPDEN OXFORDJASONHURONHURONELATICHEROKEEGALAPAGOBROADWAYDARTMOUTHSANTA FE DRIVEDRAWN BY: JDLPRINTED: 2021-08-02 15:38 ¶NDATE: August 2, 2021 SCALE:1 inch = 750 feet Number of alleys = 61 Number of inlets = 6 ± Number of manholes = 86 ± Total length = 32,488 LF ± (unpaved alleys)Quantities Inlet" Street Alley (unpaved) !Manhole Alley (paved) City Limits Legend Alley Grading & Stabilization — Zone 3 Page 489 of 553 US_285 ShermanBelleview Je f f e r s o n LoganChenango Kenyon Layton Lehigh Mansfield Nassau Oxford Princeton Quincy Radcliff Stanford Tufts UnionBroadway Bellewood GrandGrantAcomaBannockLincolnPennsylvania Centennial PearlClarksonWashingtonEmersonOgdenPennwoodLehow ¶NDATE: February 1, 2021 SCALE:1 inch = 750 feet Quantities Number of alleys = 80 Number of inlets = ??± Number of manholes = 155± Total length = 43,426 ft ± (unpaved alleys) Legend Inlet" Street Alley (unpaved) !Manhole Alley (paved) Private Alley (do not treat) preliminary Alley Grading & Stabilization 2021 — Zone 4 Page 490 of 553 5/4/23, 3:50 PM Trees ROW 1 https://cgweb13.cartegraphoms.com/englewoodco/Map/Printout?title=Trees ROW 1&timestamp=1683237005&orientation=landscape&printoutGuid=0…1/1 Page 491 of 553 5/4/23, 3:50 PM Trees ROW 2 https://cgweb13.cartegraphoms.com/englewoodco/Map/Printout?title=Trees ROW 2&timestamp=1683237042&orientation=landscape&printoutGuid=8…1/1 Page 492 of 553 5/4/23, 3:47 PM Weeds Centerline https://cgweb13.cartegraphoms.com/englewoodco/Map/Printout?title=Weeds Centerline&timestamp=1683236819&orientation=landscape&printoutGui…1/1 Page 493 of 553 5/4/23, 3:48 PM Weeds Centerline 2 https://cgweb13.cartegraphoms.com/englewoodco/Map/Printout?title=Weeds Centerline 2&timestamp=1683236889&orientation=landscape&printoutG…1/1 Page 494 of 553 ZuniVallejoTejonRaritanPecosElatiDelawareCherokeeBannockAcomaBroadwayLincolnShermanGrantLoganPennsylvaniaPearlWashingtonClarksonEmersonOgdenCoronaDowningPlatte R i v e r Drive MarionLafayetteHumboldtFranklinVineVine CtGaylordYorkSanta Fe DriveClayFederalWyandotUmatillaLipan CtShoshoneGilpinWilliamsHighRaceUniversityClayLowellLindenKeenlandJulianIrvingHookerHawthorneGroveJasonIncaHuronLehow WindermereHickoryBroadwayKingKnoxJulianEvans Adriatic Warren Iliff Wesley Harvard Hillside Vassar College Yale Amherst Bates Cornell Dartmouth Ithaca Jefferson Radcliff Tufts Pimlico Tanforan Santa Fe CircleLayton Saratoga Chenango Grand Monmouth Belleview Prentice Rafferty Baltic Caspian Baker Amherst Bates Cornell Dartmouth Eastman Floyd Floyd Pl Englewood Pkwy US 285 Kenyon Lehigh Mansfield Nassau Oxford Princeton Quincy Radcliff Stanford Decatur Tufts Union Union Layton Chenango GrandBellewood Belleview Centennial DRAWN BY: JDLPRINTED: 2022-12-29 15:24 DATE: December 29, 2022 1 inch = 2,500 feetSCALE:N¶ 2019 2020 2021 2022 (278) (64) (163) (123) year, # alerts Legend QAlerts 2019 thru 2022 Page 495 of 553 ! ! !!! !! ! ! !!! ! ! !! !!! ! !!! !! ! !! ! ! !!! !!!! !! !! !!! !!! ! !!! ! ! ! ! ! ! !! ! ! ! !! !! ! !! !!! ! ! ! ! ! ! !! !! !! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! !! ! !! ! ! !! ! ! ! !!! ! !! ! ! !!! ! ! ! !!!! !! !! ! ! ** **** 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 496 of 553 !! ! ! ! ! ! ! ! ! !! ! ! !! !!! ! ! ! ! ! ! ! !! ! !!! ! !! ! ! !!! ! ! !!! ! ! !!!! !!! ! ! ! ! ! ! ! !! ! !!! ! ! ! !! ! !! ! ! ! !! ! ! ! ! !! ! ! ! ! ! ! ! !! ! ! ! ! !!! !! ! ! ! ! ! "" " "CITYDITCHO X F O R D P R I N C E T O N Q U I N C Y R A D C L I F F S TA N F O R D T U F T S U N I O N L A Y T O N C H E N A N G O G R A N D B E L L E V I E WBROADWAYSANTA FE DRKALAMATHHURONDELAWAREWINDERMERENAVAJOJASONFOXBANNOCKACOMACHEROKEEELATIGALAPAGOINCALIPANHURONDELAWAREJASONINCABANNOCK41004200430044001200 1000 800 600 400 200 4500460047001500 480049005000PRINTED: 2019-08-30 13:17 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 1 9 Typical Alley Section 11.0' Average Width 16' ROW (typical)ROWROWMinimum CrossfallMaximum Crossfall = 2.5%= 4.5% Quantities Number of alleys = 58Number of inlets = 4±Number of ma nholes = 10 9±Total length = 33,980 ft ± (unpaved alleys)Legend Inlet" Street Alley (unpaved) !Manhole Alley (paved) DATE: Aug ust 30, 2019 ¶N SCALE:1 inch = 750 feet Page 497 of 553 YALE MANSFIELD LEHIGH KENYON HAMPDEN GIRARD DARTMOUTH EASTMAN FLOYD NASSAU AMHERST BATES CORNELL BROADWAYHURONGALAPAGOFOXELATIDELAWARECHEROKEEBANNOCKACOMAINCAHAMPDEN OXFORDJASONHURONHURONELATICHEROKEEGALAPAGOBROADWAYDARTMOUTHSANTA FE DRIVEDRAWN BY: JDLPRINTED: 2021-08-02 15:38 ¶NDATE: August 2, 2021 SCALE:1 inch = 750 feet Number of alleys = 61 Number of inlets = 6 ± Number of manholes = 86 ± Total length = 32,488 LF ± (unpaved alleys)Quantities Inlet" Street Alley (unpaved) !Manhole Alley (paved) City Limits Legend Alley Grading & Stabilization — Zone 3 Page 498 of 553 US_285 ShermanBelleview Je f f e r s o n LoganChenango Kenyon Layton Lehigh Mansfield Nassau Oxford Princeton Quincy Radcliff Stanford Tufts UnionBroadway Bellewood GrandGrantAcomaBannockLincolnPennsylvania Centennial PearlClarksonWashingtonEmersonOgdenPennwoodLehow ¶NDATE: February 1, 2021 SCALE:1 inch = 750 feet Quantities Number of alleys = 80 Number of inlets = ??± Number of manholes = 155± Total length = 43,426 ft ± (unpaved alleys) Legend Inlet" Street Alley (unpaved) !Manhole Alley (paved) Private Alley (do not treat) preliminary Alley Grading & Stabilization 2021 — Zone 4 Page 499 of 553 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Devin Keener, Tim Hoos DEPARTMENT: Public Works DATE: August 7, 2023 SUBJECT: Approval of Change order to CFC #23-083, 2023 Mill and Overlay DESCRIPTION: Approval of Change order to CFC #23-083, 2023 Mill and Overlay RECOMMENDATION: Staff recommends approving a change order with Elite Surface Infrastructure for the 2023 Mill and Overlay project to include additional streets with the project. The revised contract amount would be $5,238,603.02, which includes the original contract amount of $3,179,301.60 and the proposed change order amount of $2,059,301.42. Additionally, staff recommends maintaining the approved 10% contingency allowance of $317,930.16 to address any unforeseen circumstances that may arise during the project. PREVIOUS COUNCIL ACTION: A contract (CFC 23-83) with Elite Surface Infrastructure for the 2023 Mill and Overlay was approved at the June 5, 2023 City Council meeting. SUMMARY: The City issued an Invitation To Bid (ITB) on April 27, 2023 for the 2023 Mill and Overlay project and received 5 bids in response on May 16, 2023. The total bid from the low bidder, Elite Surface Infrastructure, was $3,179,301.60, which was $856,098.40 (21.2%) lower than the Engineer's Estimate. Given the lower than anticipated pricing received for the project, additional streets can be paved with the savings along with the additional funding still available in the City's 2023 budget for pavement maintenance, including funding from the 2022 street maintenance sales tax initiative proceeds as shown in the Financial Implications section below. After review of the Overall Condition Index (OCI) scores of all pavement segments in the city, staff has identified several streets that are recommended to be included in the change order work as listed below. These streets all have some of the lowest OCI scores in the city street network and were previously scheduled to have the necessary concrete replacement work done prior to repaving: Additional Streets: Pavement Zone 5 • S Tejon St north of Dartmouth Ave • S Vallejo St between Amherst Ave and Yale Ave • W Harvard Ave between Zuni St. and Tejon St Page 500 of 553 • W Bates Ave between Vallejo St and Tejon St Pavement Zone 4 • S Lincoln St between Layton Ave and Union Ave • E Layton Ave between Broadway and Lincoln Ave Pavement Zone 3 • W Mansfield Ave between Jason St and Kalamath St Pavement Zone 2 • W Stanford Dr between Stanford Pl and Stanford Ave Broadway • Dartmouth Ave to Floyd Ave • Belleview Ave to Hampden Ave/Hwy 285 (Driving Lanes Only) While the driving lanes on South Broadway between Belleview Ave and Hampden Ave/Hwy 285 are proposed to be included in the change order, the turn lanes and parking lanes in this segment are recommended to be resurfaced separately after the completion of the Broadway Complete Streets grant funded project in 2024. This approach ensures that the new pavement will not be affected by any adjacent concrete curb, gutter, sidewalk or ADA ramp work needed as part of the Complete Streets project. Staff engaged in discussions with Elite Surface Infrastructure (ESI) to determine the total cost for this change order based on the increased quantities of work and unit prices contained in their original bid. Lump sum pricing has been prorated based on the percentage of quantities included in the change order compared to the original work. The total change order amount of $2,059,301.42 allows for the inclusion of these additional streets within the total budget amount still available for pavement maintenance in 2023. All work will be completed at the unit prices contained in the original bid except for bid item #24, Asphalt Material Surface Course Stone Matrix Asphalt (SMA) which was increased slightly due to an increase in costs of the asphalt material passed on to the contractor. The adjusted unit price is still below the next lowest bidder's unit price for the original bid item. All original work, including the extra streets included in this change order streets, are expected to be completed by November 7, 2023. ANALYSIS: Staff selected additional street segments primarily by evaluating the pavement segment Overall Condition Index (OCI) ratings along with previous maintenance efforts and a visual assessment of the pavement condition. The additional work to be performed on each street segment is the same as the original contract work which includes the removal of the top 2 inches of the street via rotomilling, followed by full-depth asphalt patching in damaged localized areas as necessary. Repaving of all milled areas will then take place and the new pavement will be restriped as necessary. This change order also includes the removal and replacement of failed concrete curb, gutter, sidewalks, and non-compliant ADA ramps along a small segment of South Broadway between Dartmouth and Floyd Avenues prior to resurfacing that segment in order to avoid having to cut the new asphalt at a later time to replace any failed concrete. Longer life Stone Matrix Asphalt (SMA) will be utilized on the selected sections of South Broadway rather than typical Hot Mix Asphalt (HMA). SMA is a high-performance asphalt mix Page 501 of 553 that incorporates stone-on-stone contact and a higher asphalt binder content. This composition enhances the durability and longevity of the road surface, making it particularly suitable for heavily trafficked thoroughfares like South Broadway. SMA provides improved resistance to rutting, cracking, and aging, thus ensuring a sustainable and reliable wearing surface. The utilization of SMA on South Broadway demonstrates the City's commitment to implementing innovative and efficient technologies that enhance the quality and longevity of roadway surfaces. Approximate Additional blocks of Resurfacing Pavement Maintenance Zone 5 - 14 Blocks Pavement Maintenance Zone 4 - 2 Blocks Pavement Maintenance Zone 3 - 1 Block Pavement Maintenance Zone 2 - 1 Block South Broadway - 16 Blocks Project Schedule Per the terms of the change order, all work must be completed no later than November 7, 2023. This is an additional 30 days beyond the original contract end date. COUNCIL ACTION REQUESTED: Staff recommends City Council approve this change order to the 2023 Mill and Overlay project.with Elite Surface Infrastructure in the amount of $2,059,301.42 for the added scope of work described above. FINANCIAL IMPLICATIONS: City Council approved Elite Surface Infrastructure's contract CFC 23-83 on June 5, 2023 as shown in the table below. Elite Surface Infrastructure's Approved Contract Amount $3,179,301.60 +10% Contingency $317,930.16 Total Authorized Amount $3,497,231.76 A change order to the original contract in the amount of $2,059,301.42 is being proposed which is detailed in the table below: Elite Surface Infrastructure's Approved Contract Amount $3,179,301.60 +10% Contingency $317,930.16 +Change Order #001* $2,059,301.42 Total Authorized Amount $5,556,533.18 *Change Order #001 does not include an additional contingency on top of the $317,930.16 that was approved with the original contract. Page 502 of 553 Funding Sources, based on the bid quantities, are summarized here as follows and on the attached Contract Approval Summary: Item Funding Source Current Balance (as of 06/30/2023) Spent to Date Contract Amount Remaining Balance Mill and Overlay Pavement Maintenance By Area PIF project 30 1001 031 $5,271,818.08 $3,514,058.00 $57,186.09 $1,700,573.99 Mill and Overlay 02 1003- 61201 Streets & Drainage – Other Improvements $1,957,596.00 $1,957,596.00 $0.00 Concrete (Broadway from Dartmouth to Floyd) 44-1006- 61601 Concrete Utility Fund $925,000.00 $61,323.65 $29,136.00 $834,540.35 Mill and Overlay (Layton and Lincoln Storm Trench) 42-1607- 61201 - Storm Drainage Fund - Other Improvements. $18,000,000.00 $1,570,224.47 $15,383.33 $16,414,392.20 Change Order #001 Total $2,059,301.42 CONNECTION TO STRATEGIC PLAN: Strategic Outcome: Infrastructure A city that proactively and cost-effectively invests in, maintains, and protects its infrastructure. OUTREACH/COMMUNICATIONS: In preparation for the start of construction, a letter or postcard will be mailed to all affected property owners, providing advance notice. This letter will also be shared with City Council Page 503 of 553 through the weekly Council Update, aligning with the timing of mail distribution to property owners. Additionally, the contractor will post a flyer at each residence or business adjacent to the work locations, at least 24-48 hours before commencing work on a particular street segment. ATTACHMENTS: Presentation Attachment A - Change Order Bid Tab Attachment B – Additional Mill and Overlay Streets Contract Approval Summary CFC 23-83 Change Order 001 Page 504 of 553 2023 Mill and Overlay Project: Change Order Presented By: Tim Hoos –Deputy Director -Engineering and Asset Management, Public Works Department Devin Keener –Capital Projects Engineer II, Public Works Department Page 505 of 553 Purpose and Project Background •Corrective Pavement Maintenance Cycle •Remove and Replace top 2" of asphalt on each street segment •Extended Lifespan of Streets •Original bid received was $856,000 less than expected •Allows more streets to be repaved without additional budget required •Utilizes the following street maintenance budget funding sources •Sales tax ballot initiative funds •Public Improvement Fund (PIF) pavement maintenance funds •Includes ARPA Funds Page 506 of 553 Project Location •Additional Mill and Overlay •Broadway driving lanes from Belleview to HWY 285 •Broadway from Dartmouth to Floyd •Selected Zone 2,3,4 & 5 Streets •Additional Concrete Restoration •Removal and replacement of concrete along Broadway from Dartmouth to Floyd Page 507 of 553 Project Funding Funding Source Contract Amount Pavement Maintenance By Area 30-1001 031 $57,186.09 Concrete Utility Fund 44-1006-6160 $29,136.00 02 1003-61201 Streets & Drainage –Other Improvements $1,957,596.00 42-1607-61201 -Storm Drainage Fund - Other Improvements $15,383.33 Total:$2,059,301.42 Page 508 of 553 Summary •Staff recommends City Council approve a change order to the contract for construction with Elite Surface Infrastructure Inc. for the addition of selected streets to be resurfaced as part of the 2023 Mill and Overlay Project.Page 509 of 553 Questions/Comments?Page 510 of 553 Item # SPEC Item Units Quantity Unit Price Total Cost Change Order #001 1 31.01 MOBILIZATION LS 1 $116,020.00 $116,020.00 2 31.02 EROSION & SEDIMENT CONTROL LS 1 $2,015.00 $2,015.00 3 31.03 WORK ZONE TRAFFIC CONTROL LS 1 $184,555.00 $184,555.00 4 31.04 PORTABLE VARIABLE MESSAGE SIGN EA 2 $7,480.00 $14,960.00 5 31.05 RESIDENT NOTIFICATIONS LS 1 $3,195.00 $3,195.00 18 31.18 PAVEMENT REMOVAL-PLANING, 2"DEPTH SY 98,557 $1.15 $113,340.55 22 31.22 ASPHALT MATERIAL (SURFACE COURSE, NON-BROADWAY, NON DARTMOUTH AND NON FLOYD STREETS, PG 58-28 (SX) (75))SY 39,026 $9.85 $384,406.10 24 31.24 ASPHALT MATERIAL (SURFACE COURSE, BROADWAY, SMA PG 76-28 (SX) (75))SY 59,531 $15.19 $904,275.89 26 31.26 EMULSIFIED TACK COAT GAL 9,856 $3.40 $33,509.38 27 31.27 PREFORMED THERMOPLASTIC PAVEMENT MARKINGS SF 5,000 $18.10 $90,500.00 28 31.28 PAVEMENT MARKING PAINT (HIGH BUILD)SF 10,000 $1.20 $12,000.00 30 31.3 HAUL AND DISPOSE OF MILLINGS CY 5,475 $17.40 $95,265.00 6 31.06 REMOVE CONCRETE SIDEWALK 6"SY 260 $22.40 $5,824.00 7 31.07 REMOVE ADA RAMP SY 130 $26.45 $3,438.50 8 31.08 REMOVE CONCRETE CURB AND GUTTER LF 40 $11.75 $470.00 15 31.15 CONCRETE SIDEWALK 6"SY 260 $81.70 $21,242.00 13 31.13 CONCRETE ADA RAMP SY 130 $174.50 $22,685.00 16 31.16 CONCRETE CURB AND GUTTER LF 40 $40.00 $1,600.00 47 31.47 MINOR CONTRACT REVISIONS EA 1 $50,000.00 $50,000.00 Change Order #001 Total Cost $2,059,301.42 CHANGE ORDER #001 2023 MILL & OVERLAY PROJECT EXTRA STREETS Elite Surface Infrastructre Page 511 of 553 Page 512 of 553 Page 513 of 553 Page 514 of 553 Page 515 of 553 Page 516 of 553 Contract Number City Contact Information: Staff Contact Person Phone Title Email Summary of Terms: Original Contract Amount Start Date 7/10/2023 Amendment Amount End Date 11/7/2023 Amended Contract Amount Total Term in Years 0.33 Vendor Contact Information: Name Contact Address Phone Email Englewood CO City State Zip Code Contract Type: Please select from the drop down list Descripiton of Contract Work/Services Procurement Justification of Contract Work/Services CONTRACT APPROVAL SUMMARY RME Ltd, LLC dba Elite Surface Infrastructure 115 Inverness Drive East, Suite 100, Englewood, CO 80112 CFC-Contract for Construction CFC 23-083 $ 2,059,301.42 303-913-8696Devin Keener dkeener@englewoodco.govCapital Projects Engineer Renewal options available NA Van Miranda 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. $ - $ 2,059,301.42 This is a change order that adds additional mill and overlay streets to the 2023 Mill and Overlay Contract 'CFC 23-083'. The City issued an invitation for bid entitled "ITB 23-016 2023 Mill and Overlay" and received 5 bids. The lowest qualified bidder, RME Ltd, LLC dba Elite Surface Infrastructure, was selected for intent to award. 80112 Payment or Revenue terms (please describe terms or attached schedule if based on deliverables) 303-841-0292 van.miranda@eliteesi.com Page 517 of 553 CONTRACT APPROVAL SUMMARY Source of Funds: Revenue CAPITAL ONLY A B C 1=A-B-C Capital Tyler New World Spent To Contract Budget Operating Year Project # / Task #Fund Division Account Line Item Description Contract Title Budget Date Amount Remaining C 2023 02 1003-61201 Streets & Drainage – Other Improvements Contract 1,957,596.00$ -$ 1,957,596.00$ -$ C 2023 30 1001 -031 Pavement Maintenance by Area Contract 5,271,818.08$ 3,514,058.00$ 57,186.09$ 1,700,573.99$ C 2023 44-1006-61601 Concrete Utility Fund Contract 925,000.00$ 61,323.65$ 29,136.00$ 834,540.35$ C 2023 42-1607-61201 - Storm Drainage Fund - Other Improvements.Contract 18,000,000.00$ 1,570,224.47$ 15,383.33$ 16,414,392.20$ -$ -$ -$ -$ Total Current Year Total 26,154,414.08$ 5,145,606.12$ 2,059,301.42$ 18,949,506.54$ GRAND TOTAL 26,154,414.08$ 5,145,606.12$ 2,059,301.42$ 18,949,506.54$ Process for Choosing Contractor: Solicitation Name and Number Attachment (For Capital Items Only / Expense Line Item Detail is Located in OpenGov): All Other Attachments: ITB 23-016 2023 Mill and Overlay NOTES/COMMENTS (if needed): For Operating Line Item Detail, please review information provided in Tyler New World For Capital Items, please review Prior Month's Project Status and Fund Balance Report General Ledger Account String Solicitation:Evaluation Sum m ary/B id Tabulation Attached Proposal/B id Attached Prior M onth-End Project Status and Fund B alance R ep ort Evalua tion Sum ma ry/B id Tabulation AttachedEvalua tion Sum ma ry/B id Tabulation AttachedEvalua tion Sum ma ry/B id Tabulation AttachedC ontract C opy of O riginal C ontract if this is an Amendment C opies of R elated C ontracts/C onveya nces/D ocum ents Addendum(s) Exhibit(s) Certificate of Insurance Page 518 of 553 Page 519 of 553 Page 520 of 553 Page 521 of 553 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Shawn Lewis, Tim Dodd DEPARTMENT: City Manager's Office DATE: August 7, 2023 SUBJECT: Approval of a contract with Englewood Arts for use of a portion of the Englewood Civic Center DESCRIPTION: Approval of a contract with Englewood Arts for use of a portion of the Englewood Civic Center RECOMMENDATION: Staff requests that Council consider the approval of an amendment to the existing agreement between the City of Englewood ("the City") and Englewood Arts ("E-Arts") for the partial use of the former Museum of Outdoor Arts (MOA) space. PREVIOUS COUNCIL ACTION: • October 17, 2005- The City enters into an agreement with E-Arts for the use of Hampden Hall • May 21, 2018- Englewood Arts Hampden Hall Update • December 3, 2019- E-Arts renewed the agreement for an additional five years, running through the end of 2025 • May 15, 2023- Approval of a contract with Englewood Arts for use of a portion of the Englewood Civic Center (Tabled) • June 5, 2023- Approval of a contract with Englewood Arts for use of a portion of the Englewood Civic Center (Tabled) • June 26, 2023- Study Session on the proposals of Englewood Arts and Historic Englewood for the possible use of portions of the second floor of the Englewood Civic Center • July 24, 2023- Approval of a contract with Englewood Arts for use of a portion of the Englewood Civic Center (Tabled) SUMMARY: When the Museum of Outdoor Arts (MOA) left their space in the Civic Center, staff reached out to community groups, namely Englewood Arts (E-Arts) and Historic Englewood for the use of space. The two organizations met and provided a proposal for the use of the space which was then reviewed by the City. Staff proposes that Council consider approval of an amendment to an existing agreement with E-Arts for the use of a portion of the space, which will primarily be used to expand their ability to offer classes and programs. ANALYSIS: Page 522 of 553 Commitments of the City Under the terms of the agreement, the City agrees to: • Provide use of a portion of the former MOA space to E-Arts. All of these areas will be for the exclusive use of E-Arts, with the exception of a meeting space ("Room A") and a conference room, with the City retaining use of Room A before 3:30PM on weekdays and of the conference room before 5:00PM on weekdays • Provide routine (non-event related) maintenance and cleaning of the space; • Make improvements in Room A, which may include paint, flooring, cabinetry, and plumbing • Install a door that allows for visibility into the White Box Room within 90 days of the execution of the amendment Commitments of E-Arts Under the terms of the agreement, E-Arts agrees to: • Utilize the space to promote the arts in Englewood; • Maintain a Master Schedule for the annual use of the space; and • Schedule all rental uses of the space. Changes made after Study Session After the Study Session in June, the City Attorney's Office made the following changes: • Added language relative to the closing of doors; • Added language relative to reporting requirements of E-Arts; and • Added language relative to detailing what the Space means to E-Arts. COUNCIL ACTION REQUESTED: Staff requests that Council consider the approval of an amendment to the existing agreement between the City and E-Arts for the partial use of the former MOA space. FINANCIAL IMPLICATIONS: Under the terms of the agreement, the City will make small modifications to one room (such as paint, flooring, and cabinetry) that will be used by both the City and E-Arts, and will purchase and install a door for one of the rooms that will be utilized by E-Arts. While pricing may change with inflation and supply change challenges, staff estimates that the cost for these modifications will be under $20,000. OUTREACH/COMMUNICATIONS: Staff reached out to E-Arts and Historic Englewood, two community-driven organizations in the City of Englewood. Programs sponsored by E-Arts are available and open to members of the Englewood community. ATTACHMENTS: Contract Amendment- E-Arts E-Arts Contract- 2016 Amended Version Contract Approval Summary- Englewood Arts Presentation- E-Arts Contract Hamden Hall Use Data & Application Form E-Arts- Board Member Letter of Support Page 523 of 553 1 AMENDMENT NUMBER 1 TO HAMPDEN HALL USE/MANAGEMENT AGREEMENT THIS AMENDMENT NUMBER 1 to the Hampden Hall Use/Management Agreement, made and entered into on this ________ day of ________________, 2023, (the “Effective Date”) by and between the City of Englewood, a Colorado Municipal Corporation (hereafter referred to as the “City”) and the Englewood Cultural Arts Center Association, a Colorado not-for-profit corporation, doing business as Englewood Arts (hereafter referred to as “E-Arts”), and collectively referred to as the “Parties”. WHEREAS, the City developed a cultural arts space for performances, events, and meetings on the second floor of the Civic Center; and WHEREAS, on October 17, 2005, the City entered into an Agreement with E-Arts for the use of Hampden Hall to provide cultural and artistic programs; and WHEREAS, the initial term of the Agreement expired on February 29, 2016; and WHEREAS, On December 3, 2019, E-Arts renewed the Agreement for another 5 years from January 1, 2021 through December 31, 2025; and WHEREAS, the space formally occupied by the Museum of Outdoor Arts (MOA) is currently vacant; and WHEREAS, The City's desires to maximize the use of the Space and the former MOA space, thereby attracting increased numbers of visitors to Englewood and the Civic Center; and WHEREAS, The City desires to enter into this Amendment with E-Arts to assist E-Arts in the conduct of its activities and operations in the Space as expanded herein and to clarify the rights and duties granted by the City and accepted by E-Arts. NOW, THEREFORE, the City and E-Arts hereby enter into this Amendment Number 1 as follows: 1. AMENDMENT TERMS This Amendment is entered into to modify the terms of the original Agreement. 2. MODIFICATIONS AND AMENDMENTS Page 524 of 553 2 A. Section 1.3.1 is added to the Agreement: The City provides use of the following rooms and facilities in the former portion of the former MOA space as shown on Exhibit A attached hereto and incorporated herein: • “Green Room” • “Office” • “Kitchenette Area” • “Closet areas behind museum display walls,” excluding small shelving area in • “White Box Gallery” • “Room A” (After 3:30 P.M. on weekdays and all day on weekends) B. Section 3.1.3 Space Scheduling is modified as follows: E-Arts shall create and maintain a Master Schedule for annual usage of the Space. The Master Schedule shall be developed on a timely basis in order to accommodate the annual event schedule of E-Arts, the City, and other users. The up- to-date Master Schedule must be available to the City at all times in an electronic or print format. E-Arts shall create and maintain a Master Schedule for use of Room A the former MOA space for after 3:30 P.M. on weekdays (Monday through Friday) and all day on weekends (Saturday and Sunday). The up-to-date Master Schedule must be available to the City at all times in an electronic or print format. C. Section 3.1.4 Maintenance is modified as follows: The City, at its own expense, shall provide routine (non-event related) maintenance and cleaning of the facility, per current City standards for the Civic Center. The repair of faulty electrical wiring, not the result of misuse by E-Arts, shall be included in routine maintenance. Also included in routine maintenance shall be the replacement of burned out light bulbs, with the exception of theatrical lighting. The City shall, subject to appropriation, make repairs to the standard equipment, when deemed necessary, in a timely manner, so as to avoid harm to E-Arts events. The City, at its own expense, shall make improvements that it sees fit for the use of Room A in the former MOA space. Improvements may include paint, flooring, cabinetry, and plumbing. E-Arts will have a ten day period to provide feedback to the City on any proposed modifications, with final decisions to be made by the City. The City also agrees to install a door, at its own expense, in the front of the White Box Room within 90 days of the execution of this agreement. D. Section 3.2 Rental Uses and Fees is modified as follows: E-Arts shall be responsible for scheduling all rental uses of the Space and shall retain 100 per cent (100%) of the rental fees. Rental rates shall be established by E-Arts. The City shall not be charged rental fees for its use of the Space, nor shall the City receive rental fees for any of its uses of the Space. All rental inquiries received by the City shall be directed to E- Arts. Page 525 of 553 3 E. Section 3.2.5 Non-competitive use is modified as follows: E-Arts agrees that its uses of the Space will not directly compete with programs offered by the City. F. Section 4.1 City Priority is modified as follows: As lessee of the Space, the City has first priority for scheduling dates for the use of the Space for City or City sponsored functions, and Room A in the former MOA space before 3:30 P.M. on weekdays. G. Section 4.3 MOA priority is stricken from the Agreement. H. Section 8.8 Notices is modified as follows: Museum of Outdoor Arts is removed. I. The following section 8.10 is added to the Agreement Incorporation by Reference: This Agreement is made under and conformable to the provisions of Englewood Municipal Code (EMC) § 4-1-3-4, which provides standard contract provisions for all contractual agreements with the City. Insofar as applicable, the provisions of EMC § 4-1-3-4 are incorporated by reference. J. The following section 8.11 is added to the Agreement: The Parties to this Agreement recognize that EEF will dissolve during the term of this Agreement, and the City of Englewood will acquire ownership of the leased premises, the City of Englewood will automatically become the sole lessor and any obligations of EEF hereunder shall be automatically terminated. K. The following section 8.12 is added to the Agreement Rental Records: E-Arts shall create and maintain rental records for each rental of the Space. The rental records shall detail rental rates, purpose of rental, policy regarding rental discounts, and names of individuals or groups renting the Space. The E-Arts rental records shall be made available to the Public and the City and shall be provided upon the request of the Public or the City. L. The following section 8.13 is added to the Agreement Security: E-Arts shall insure that all doors to the Space are closed and secure when the Space is not in use and afterhours. 3. INCORPORATION BY REFERENCE OF AGREEMENT, ANY PRIOR AMENDMENTS Except as specifically modified herein, all other terms and conditions of the Agreement and any prior amendments thereto are incorporated by reference as if fully set forth herein and shall continue in full force and effect until the expiration of the term or termination of the Agreement. Page 526 of 553 4 CITY OF ENGLEWOOD, COLORADO By: __________________________________ Date: ________________________________ ENGLEWOOD CULTURAL ARTS CENTER ASSOCIATION By: __________________________________ (Signature) ________________________ (Print Name) Title: ___________________________ Date: ____________________________ Page 527 of 553 RESOLUTION NO. SERIES OF 2016 A RESOLUTION AUTHORIZING AN AGREEMENT BETWEEN ENGLEWOOD CUL111RAL ARTS CENTER ASSOCIATION (dba E-Asts), AND THE CITY OF ENGLEWOOD, COLORADO PERTAINING TO THE MANAGEMENT OF HAMPDEN HALL AT THE ENGLEWOOD CIVIC CENTER. WHEREAS, on October 17, 2005 the City entered into an agreement with E-Arts for the use of Hampden Hall, to provide cultural and artistic programs; and WHEREAS, the initial tenn of the agreement expires on February 29, 2016, E-Arts has requested to enter into a new five year agreement; and WHEREAS, in 2015 there were a total of 76 events held at Hampden Hall, all of which were booked and managed by the Englewood Public Library; and WHEREAS, the Englewood Public Library currently manages the booking and oversight of Hampden Hall spending 300 hours aruiually, and cost of approximately $9,700.00 in routine maintenance and event related costs; and WHEREAS, E-Arts proposes to assume the responsibility for scheduling all rental uses of Hampden Hall, including all routine maintenance and event related costs and in return will retain all rental fees; and WHEREAS, the City would incur a loss ofS3,000 to $5,000 in annual revenue, this loss would be offset by the time and expense currently provided by Public Works facility maintenance and Library staff time spent on booking and management; and WHEREAS, the City and Museum of Outdoor Arts shall have use of Hampden Hall at no cost, with each party responsible for its event related staffing including pre and post event related activities; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section 1. The agreement between the Englewood Cultural Arts Center Association (dba E-Arts) and the City of Englewood, Colorado pertaining to the management of Hampden Hall, attached hereto as Exhibit I, is hereby accepted and approved by the Englewood City Council Section 2. The Mayor and City Clerk are authorized to execute and attest said Use Agreement for and on behalf of the City of Englewood. ADOPTED AND APPROVED this 4th day of January, 201 Page 528 of 553 I, Loucrishio. A. Ellis, City Clerk for the City ofEnglew cl. Colorado, hereby certify the above is a true copy of Resolution No. Series of 201 . .. 0 Page 529 of 553 '• Hampden Hall Use/Management Agreement This USE/MANAGEMENT AGREEMENT (her$!pfJ efe d to in its entirety as "Agreement''), made and entered into this _4-,-,«idf::la,y o 016, by and be, een the City of Englewood, a Colorado Municipal Corporati (herea er referred to as "L ty"); the Englewood Cultural Arts Center Association, a Colorado not-for-profit corporation, doing business as Englewood Arts (hereafter referred to as E-Arts), and the Museum of Outdoor Arts (hereafter referred to as MOA). RECITALS The City developed, on the second floor of its Civic Center building, a Cultural Arts Space (hereafter referred to as "the Space"), as a cultural performance venue for community arts performances, as well as other events and meeting uses. The CITY leases the Civic Center from the Englewood Environmental Foundation and has fu]) authority and discretion for its use. E-Arts is an Internal Revenue Code 501 (c) 3 organization engaged in developing and presenting cultural and artistic programs for Englewood and the surrounding communities. It is the City's desire to maximize the use of the Space, thereby attracting increased numbers of visitors to Englewood and the Civic Center. The City desires to enter into this Agreement with E-Arts to assist E-Arts in the conduct of its activities and operations in the Space and to clarify the rights and duties granted by the CITY and accepted by E-Arts. The Museum of Outdoor Arts is aware of this agreement and agrees to its current priority use of the Space as defined in Section 4.3. The City Council of the City of Englewood has resolved to enter into this Agreement in accordance with the following terms. NOW, THEREFORE, in consideration of the foregoing Recitals and the covenants and the promises hereinafter contained, the parties agree as follows: ARTICLE l Ifil!M 1.1 Premises. The CITY does hereby permit the non-exclusive right to E-Arts to use the Space located in the Civic Center and named Hampden Hal1, located at 1000 Englewood Parkway, Englewood, as shown on Exhibit A attached hereto and incorporated herein. The premises, known as the Space contains approximately 4,000 square feet 1.1.2 Utilities. As lessee of the building, the CITY shall be responsible, at no cost to E- Arts, for the cost of utilities, such as heating, cooling and electricity for the Space .. Page 530 of 553 .. 1.2 Term of Use. The Term of Use, which is the subject of this Agreement, shall commence upon the first day of January 2016, and shall expire on the final day of December 2020. In addition, a joint option to extend the Term of the Agreement for five (5) additional one (1) year periods shall be granted, subject to the following condition: 1.2.1 Written notice of E-Arts election to exercise an option term shall be given no later than twelve months prior to the expiration of the existing term. The CITY shall either accept or deny the extension within thirty (30) days of E-Arts written notice. ARTICLE II FEES 2.1 In recognition of E-Arts' initial contribution of eighty-three thousand dollars ($83,000) toward the construction of the Space, and in recognition of the successful efforts by E-Arts to create and present artistic programs attracting thousands of visitors to the Space during the past ten (10) years, the CITY shall not require E-Arts to pay fees for the right to manage the Space. ARTICLE Ill FACILITY AND STORAGE SPACE 3.1 Facility Equipment. An initial complement of equipment (Attachment Exhibit BJ for the Space has been provided by the CITY and shall be made available to E- Arts. An inventory of the Hampden Hall equipment and furnishings shall be conducted jointly by the City and E-Arts. The condition of the equipment and furnishings provided by the City shall be on a "where is, as is" basis.. The equipment available is to include production equipment, such as lighting fixtures, sound equipment, video projector, drop- down screen and audience related items, such as chairs and tables. Any additional equipment required beyond the standard compliment of equipment for particular events shall be provided by E-Arts, subject to approval by the ClTY. The CITY shall grant favorable consideration to E-Arts for the installation of additional equipment, but it shall not be the responsibility of the ClTY to pay for the equipment or its continued maintenance not included in Attachment A. The parties shall annually assess the compliment of equipment and determine if replacement or upgrades are required; funding of such equipment shall be determined by negotiation between the parties. Replacement or addition by the City of equipment or furnishings is subject to appropriation. 3.1.2 Storage Space. Subject to availability, the CITY shall make space available to E- Arts for the purpose of temporary storage. Only those spaces specifically designated by the CITY for use by E-Arts may be used on an on-going basis. 3.1.3 Space Scheduling. E-Arts shall create and maintain a Master Schedule for annual usage of the Space. The Master Schedule shall be developed on a timely basis in order to accommodate the annual event schedule of E-Arts, the CITY, MOA and other users. The up- to-date Master Schedule must be available to the City at all times in an electronic or print format. 3.1.4. Maintenance. The CITY, at its own expense, shall provide routine (non-event related) maintenance and cleaning of the facility, per current CITY standards for the Civic Page 531 of 553 Center. The repair of faulty electrical wiring, not the result of misuse by E-Arts, shall be included in routine maintenance. Also included in routine maintenance shall be the replacement of burned out light bulbs, with the exception of theatrical lighting. The CITY shall, subject to appropriation, make repairs to the standard equipment, when deemed necessary, In a timely manner, so as to avoid harm to E-Arts events. 3.1.5. Staffing. Each party to this Agreement shall have the sole responsibility for providing staffing for its uses of the Space, including all pre - and post-event chair placement, equipment adjustments, ticketing, event attendants, sound and lighting technicians and post event cleaning, including the public restrooms and rotunda. E-Arts may request assistance from City staff, but shall reimburse the City for any staffing costs so incurred. 3.2 Rental Uses and Fees. E-Arts shall be responsible for scheduling all rental uses of the Space and shall retain 100 per cent (100%) of the rental fees. Rental rates shall be established by E-Arts. The City nor MOA shall not be charged rental fees for its use of the Space, nor shall the City or MOA receive rental fees for any of its uses of the Space. All rental inquiries received by the CITY or MOA shall be directed to E-Arts. 3.2.1 Use Commitment E-Arts shall commit to produce a minimum of thirty (30) uses each year. E-Arts shall make Its best efforts to promote the use of the Space to other performing groups, arts organizations, businesses, organizations and individuals. 3.2.2 Rental Applications. E-Arts shall use the existing or any revised rental application (approved by the CITY) for all uses scheduled by E-Arts and shall provide copies of the completed applications to the CITY. 3.2.3 Food and Beverage Service. Subject to the availability of food and beverage service facilities in the Space, E-Arts shall be granted permission to serve food and beverages to its patrons during its events. E-Arts shall be responsible for obtaining any required health department permits and City and State sales tax licenses required for the sale of food and beverages. Addition of any temporary or permanent food and beverage service facilities shall be subject to the advance approval by the City. 3.2.4 Equipment Use. E-Arts shall engage experienced, skilled sound and/or lighting persons to operate the CITY-owned equipment in the Space. 3.2.S Non-competitive Use. E-Arts agrees that its uses of the Space will not directly compete with programs offered by the City or the Museum of Outdoor Arts. 3.2.6 Civic Center Entrances. The CITY agrees to keep all Civic Center public entrance doors open during the times of E-Arts uses of the Space. E-Arts shall be responsible for notifying the City of event dates and times, or any cancellations or changes in event dates and times, at least 48 hours in advance of any event Page 532 of 553 ARTICLE IV SCHEDULING PRIORITY 4.1 City Priority. As lessee of the Space, the CITY has first priority for scheduling dates for the use of the Space for City or City sponsored functions 4.2 E-Arts Priority. The second priority for scheduling will be programs that are offered and/or presented by E-Arts or jointly by the CITY and E-Arts. 4.3 MOA Priority. MOA agrees to having third priority for the scheduling of it events in the Space and shall provide E-Arts with copies of the Use Applications for inclusion in the Master Schedule. 4.4 Requests for Event Date. The CITY may request a date for use of the Space based on an anticipated event, but for which an "Event Use Application" has not yet been completed. This shall be designated an "Event Hold." If E-Arts requests the same date and is prepared to enter into a formal "Event Use Application," the CITY must, within 48 hours, submit an "Event Use Applicationn or lose its priority for that date. E-Arts and the CITY shall mutually resolve disputes over dates. ARTICLEV SIGNAGE, PROMOTION AND NAMING RIGHTS 5.1 Signage. The CITY has provided appropriate signage on the south outside wall of the Civic Center and in various locations within the Civic Center to direct patrons to the Space. 5.2 Promotion. E-Arts will be responsible for providing, on a timely basis, information about its events for appropriate placement within the Civic Center and the City Center Englewood. In addition, as appropriate, the CITY may, subject to time and availability include E-Arts performance information on the City's website and Citizen Newsletter. 5.3 Naming Rights. The CITY and E-Arts may enter into discussions regarding potential revenue generation to fund capital and/or operating expenses of the Space in exchange for naming rights. Such discussions shall include consideration of the appropriateness, the level of contribution to be so honored and what portion of the Space should be defined as a naming opportunity. Final approval for naming rights shall remain solely with the City of Englewood. ARTICLE VI INSURANCE AND INDEMNITY 6.1 E-Arts Liability Insurance. 6.1.1 Public Liability. E-Arts shall, during the term of this Agreement. keep in full force and affect a policy of commercial general public liability insurance with personal injury and property damage limits in an amount of not less than $1,000,000 per occurrence and $2,000,000 aggregate. The policy shall name the CITY and the Englewood Environmental Page 533 of 553 .. Foundation (EEFJ as additional insured and shall contain a clause that the insurer will not cancel or change the insurance without first giving the CITY ten (10) days prior written notice. The insurance shall be with a company qualified to do business in Colorado, and a copy of the policy or evidence of insurance, in a form approved by the CITY, shall be delivered to the CITY within thirty (30) days of the execution of this Agreement 6.1.2 Worker's Compensation. To the extent required by law, E-Arts shall procure and maintain worker's compensation coverage for its employees. 6.2 E•Arts Property Insurance, E-Arts agrees that it shall keep its furniture, fixtures, merchandise, equipment and all items it is obliged to maintain and repair under this agreement insured against loss or damage by fire and all risk endorsements. It is understood and agreed that E-Arts assumes alJ risk of damage to its own property arising from any cause whatsoever, including, but without limitation, loss by theft or otherwise. 6.3 8-Arts Indemnity. E-Arts shall indemnify and hold harmless the CITY and the Englewood Environmental Foundation harmless from and against any and all losses, claims and damages arising from E -Arts' use of the Space, or the conduct of its business or from any act or omission or activity, work or thing done, permitted or suffered by E-Arts in the Space, and sha)) further indemnify and hold the CITY harmless from and against any and all claims arising from any breach or default in the performance of any obligation of E-Arts to be performed under the terms of this Agreement, or arising from any act or negligence of E- Arts or any of its agents, contractors or employees, and from and against all costs, attorneys' fees, expenses and liabilities incurred in connection therewith. The CITY shall not be liable for injury or damage, which may be sustained by the person, goods, wares, merchandise or property of E -Arts, its employees, invitees or customers, or any other person in the Space however caused. 6.4 E-Art Third Party Use. E-Arts shall be responsible for all third party use of the Space and shall require certifications of insurance from those third party users naming the CITY and EEF as additional insureds. ARTICLE VII DEFAULT 7.1 Default by E-Art. Subject to the E-Arts' notice and cure rights set forth below, the CITY may terminate this Agreement upon default by E-Arts under this Agreement Notice of default determination, which shall state the designated date of the default, shall be in writing, delivered by certified U. S. Mail, Return Receipt Requested, at least thirty (30) days prior to the designated date for default determination of this Agreement. E-Arts shall have ten (10) business days from receipt of a default determination notice to correct or commence such correction if such correction cannot be reasonably corrected within such ten (10) days. If so corrected, or commenced and corrected, within a reasonable time then this Agreement shall not terminate. Upon termination for default, E-Arts shaJI reimburse any and all charges due to the CITY for which it is entitled under this Agreement 7.2 Annual Performance Review. The City shall, on an annual basis following the completion of the E-Arts season (on or about July 1) evaluate and assess the E-Art's Page 534 of 553 .. compliance with all contract terms and performance standards. Any deficiencies noted shall be subject to the default provision in 7.1. 7.3 Termination, In the event that the building in which the Space is located is sold or vacated prior to the termination of this Agreement, or any subsequent renewal period, the parties hereby acknowledge that this Agreement and the parties' duties under this Agreement shall terminate. 7.4 Notification of Termination. In the event that Hampden Hall is sold or the City requires E-Arts to vacate the premises prior to the termination of this agreement, or any subsequent renewal, the City shall provide E-Arts with written notice at least 360 days prior to the required vacation. ARTICLE VII MISCELLANEOUS 8.1 Time of Essence. Time is of the essence. 8.2 Assignment. E-Arts shall not assign this agreement or any interest herein, without the prior written consent of the CITY, in its sole and subjective discretion. 8.3 Severability. The validity of a provision of this Agreement, as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof. 8.4 Entire Agreement. This Agreement, along With any exhibits or attachments hereto, constitutes the entire agreement between the parties relative to the Space and Programming, and there are no oral agreements or representations between the parties with respect to the subject matter thereof. This Agreement supersedes and cancels all prior agreements and understandings with respect to the subject matter thereof. The Agreement may be modified only in writing, signed by the parties in interest at the time of modification. 8.5 Third- Party Beneficiary. Nothing herein shall be construed as giving rise to any rights or benefits to any third party. E-Arts and the CITY expressly disclaim any intent to create any third-party beneficiary status or rights in any person or entity not a party to this Agreement 8.6 Binding Effect: Choice of Law. Subject to any provision hereof restricting assigning by E-Arts, this Agreement shal) bind the parties, their successors and assigns. The laws of the State of Colorado shall govern this Agreement. 8.7 Authority, Each individual signing this Agreement on behalf of the respective parties represents and warrants that he/she is duly authorized to sign and deliver this Agreement on behalf of such party and that this Agreement is binding upon each party in accordance with its terms. Page 535 of 553 8.8 Notices. All notices, coordination, and other communication required or permitted by this Agreement shall be made to the following persons: CITY OF ENGLEWOOD City Manager City of Englewood 1000 Englewood Parkway Eng]ewood, CO 80110 Englewood Cultural Arts Center Executlve Director 1000 Englewood Parkway Englewood, CO 80110 Museum of Outdoor Arts Executive Director 1000 Englewood Parkway Englewood, CO 80110 8.9 Nondiscrimination. E•Arts shall make its services and programs available to all persons, regardless of race, color, age, creed, national origin, sex, or disability. IN WITNESS WHEREOF, the parties hereto have affixed their signatures to the Agreement the day and year first above written. ENGLEWOOD CULTURAL ARTS CENTER ASSOCIATION By: , Its: &K ec.vf,ve Oicet!f,;,..- MUSEUM OF OUTDOOR ARTS By: -_y;. Its: Page 536 of 553 Page 537 of 553 Contract Number City Contact Information: Staff Contact Person Phone Title Email Summary of Terms: Original Contract Amount Start Date 1/1/2022 Amendment Amount End Date 12/31/2022 Amended Contract Amount Total Term in Years 1.00 Vendor Contact Information: Name Contact Address Phone Email Englewood CO City State Zip Code Contract Type: Please select from the drop down list Description of Contract Work/Services Procurement Justification of Contract Work/Services CONTRACT APPROVAL SUMMARY Eric Bertoluzzi 1000 Englewood Parkway Lease $ - $ - $ - (303)-762-2317Tim Dodd tdodd@englewoodco.govDeputy City Manager Renewal options available Contract expires on December 31, 2023 The City seeks to amend its existing agreement with Englewood Arts, a local nonprofit. The amendment will provide Englewood Arts with the use of additional space on the second floor of the Englewood Civic Center. The City will incur the cost to modify the space in the amount of approximately $20,000. The city has agreed to modify the space on the second floor of the Englewood Civic Center for Englewood Arts use at a cost of approximately $20,000. Staff recommends using funds set aside in the Captial Projects Fund Facilities and Operations Project 31 1005-001. 80110 Payment or Revenue terms (please describe terms or attached schedule if based on deliverables) (303)-762-2317 ebertoluzzi@hotmail.com The City will provide Englewood Arts with the use of space on the second floor of the Englewood Civic Center, amending the existing contract which allows for the use of Hampden Hall. In return, Englewood Arts will offer arts-related programming for the City community. Page 538 of 553 CONTRACT APPROVAL SUMMARY Source of Funds: Revenue CAPITAL ONLY A B C 1=A-B-C Capital Tyler New World Spent To Contract Budget Operating Year Project # / Task #Fund Division Account Line Item Description Contract Title Budget Date Amount Remaining C -$ -$ -$ -$ C 2023 31 1005-001 Englewood Arts 1,750,902$ 134,635$ 20,000$ 1,596,267$ O -$ -$ -$ -$ O -$ -$ -$ -$ O -$ -$ -$ -$ Total Current Year 1,750,902$ 134,635$ 20,000$ 1,596,267$ C -$ -$ -$ -$ C -$ -$ -$ -$ O -$ -$ -$ -$ O -$ -$ -$ -$ O -$ -$ -$ -$ Total - Year Two -$ -$ -$ -$ GRAND TOTAL 1,750,902$ 134,635$ 20,000$ 1,596,267$ Process for Choosing Contractor: Solicitation Name and Number Attachment (For Capital Items Only / Expense Line Item Detail is Located in OpenGov): All Other Attachments: NOTES/COMMENTS (if needed): For Operating Line Item Detail, please review information provided in Tyler New World For Capital Items, please review Prior Month's Project Status and Fund Balance Report General Ledger Account String Solicitation:Evaluation Summary/Bid Tabulation Attached Proposal/Bid Attached Prior Month-End Project Status and Fund Balance Report Evaluation Summary/Bid Tabulation AttachedEvaluation Summary/Bid Tabulation AttachedEvaluation Summary/Bid Tabulation AttachedContract Copy of Original Contract if this is an Amendment Copies of Related Contracts/Conveyances/Documents Addendum(s) Exhibit(s) Certificate of Insurance Page 539 of 553 Contract Amendment with Englewood Arts-Partial Use of the Second Floor of the Civic Center Page 540 of 553 Englewood Arts •Founded in 2002 •Community resource dedicated to enriching the lives of children and adults through art education, performance, and partnership •Holds a music performance series presenting top artists and performers including musicians from the Colorado Symphony Orchestra and dance Page 541 of 553 Agreement Terms The City agrees to: •Provide use of a portion of the former MOA space to Englewood Arts. All of these areas will be for the exclusive use of E-Arts, with the exception of a meeting space (“Room A”) and a conference room, with the City retaining use of Room A before 3:30PM on weekdays and of the conference room before 5:00PM on weekdays •Provide routine (non-event related maintenance and cleaning of the space •Make improvements to Room A, which may include paint, flooring, cabinetry, and plumbing; and •Install a door that allow for visibility into the White Box Room within 90 days of the execution of the contract amendmentPage 542 of 553 Agreement Terms E-Arts will: •Utilize the space to promote the arts in Englewood; •Maintain a Master Schedule for the annual use of the space; and •Schedule all rental uses of the space. Page 543 of 553 Page 544 of 553 Questions?Page 545 of 553 2022 Hamden Hall Community Uses Group Date Hours used Total paid Price per Hour paid CJ Cullinan Birthday party 16-Jan 6 460 76.66666667 Denver Chapter/American Harp Society 5-Feb 3 400 133.3333333 Colorado Symphony sensory Friendly concert 2-Mar 3 300 100 Spanish Congregation/ Jehovah’s Witnesses 15-Apr 5 675 135 Derek The Magician 22-Apr 9 700 77.77777778 Colorado Genealogical Society 23-Apr 8 925 115.625 Rocky Mountain Arts Association choral concert 30-Apr 5 675 135 Vocal Arts Academy recital 15-May 3 300 100 Denver Mile High Barber Shop Choruses 18-Jun 5 600 120 Lisa Trujillo Dance Recital 24-Jun 3 300 100 Wedding Reception 14-Jul 5 400 80 Derek The Magician 15-Jul 8 700 87.5 Sheridan Police Department Award Ceremony 17-Aug 6 600 100 Ukraine Aid Fund concert 6-Sep 4 0 0 My Dream Global Foundation Beauty Pageant 1-Oct 5 400 80 Harvard Graduate School of Education info session 18-Oct 3 500 166.6666667 Life Line Screening 28-Oct 8 500 62.5 Movement Disorders Foundation 29-Oct 8 1050 131.25 Ukraine Aid Fund concert 4-Nov 4 200 50 Global Musical Bridges 6-Nov 3 400 133.3333333 The Sacred Grace of Englewood Prayer Meeting 10-Nov 2 200 100 International Leadership Foundation 19-Nov 3 380 126.6666667 India Fashion Show 3-Dec 4 400 100 Sherer memorial service 11-Dec 4 525 131.25 Vocal Arts Academy 18-Dec 3 300 100 Lisa Trujillo dance recital 19-Dec 3 300 100 The Sacred Grace Englewood Christmas Eve 24-Dec 3 0 0 Derek The Magician 28-Dec 9 0 0 Bob Baker concert (deposit only) 30-Dec 0 0 0 Page 546 of 553 NOTES The above list includes uses other than the Sunday morning uses by The sacred Grace Englewood (TSGE) TSGE began using Hampden Hall on March 13, 2022. The original agreed upon fee was $350 for 3 hours each Sunday morning. The fee was increased to $400 each Sunday morning, when TSGE requested an additional 45 minutes each Sunday. The TSGE paid this total amount for all its Sunday morning uses in 2022: $17,550.00. The standard rental fee is $150 per hour. However, with few exceptions, users negotiate a reduced rate. In addition to the hours of use, nearly every user requests and receives a tour or several tours of the room, which include directions for the use of the sound and lighting boards, Mics and mic stands, music stands, how to set chairs and tables, etc. Also, each user has unique needs, which is why the flexibility of the room and the rates is necessary. E-Arts is fortunate that only one user since January of 2016 failed to pay the agreed upon fee. Users reserving the room multiple times usually receive a reduced rate. Grand Total for 2022: $29,719.00 Englewood Arts Uses (no rental fees charged or collected) Twelve Englewood Arts Chamber Music concerts (one per month) One Board of Trustees Meeting Three Strings Attached Recitals Page 547 of 553 ENGLEWOOD CULTURAL ARTS CENTER ASSOCIATION (Englewood Arts) HAMPDEN HALL USE APPLICATION 1000 Englewood Parkway, Englewood, Colorado 80110 englewoodarts.org Organization (“Event Holder”): Contact Person: Address: City/Zip: Phone: _____________________________E-Mail ________________________________________________ Name of Event: ______________________________________________________ Event Date: ________________________ Type of Use: Musical/Dance Performance Lecture/Presentation Theater Production Other: ______________________________ Projected Attendance: Times Requested (incl. setup and closing-up time): ________________________________________ Event Start Time: ____________________ Event End Time: __________________________ SETUP NEEDED: Standard Room Setup: Lecture/Theater Style for 194 people with center aisle. 4 tables (2’ x 6’) and 4 cocktail tables are available. Chairs: Standard Chair Setup Alternate Chair Setup (Please describe in Notes) Other: 2 x 6’ tables _____________________ (qty) Cocktail tables ___________________ (qty) Page 548 of 553 Music Shells ________Yes _______No OTHER EQUIPMENT/ACCOMODATIONS: Music Shells Sound Board Screen Mics/Mic Stands Podium CD Player Light Board (spotlights) Food/Beverage Internet Access Handicap Access for Performer Merchandise Sales Box Office *Please write additional needs or comments in the Notes section at the end of the application. Page 549 of 553 PLEASE NOTE: • The Event Holder may not make changes to the sound/light boards. The Event Holder has the option to pay for a sound/lighting technician to operate the sound/light boards. • Food and beverages may be provided by the Event Holder. However, no food preparation area is available. Sale or service of alcohol is allowed only with approved license. Contact Deputy City Clerk for liquor licensing information at 303-762-2405. • Merchandise and Food Sales are subject to Englewood Sales Tax. Contact the City Finance Department at 303-762-2409 for information. • A maximum of 50 parking spaces is available Monday through Thursday from 8 am to 5 pm. Outside of business hours there is more, ample parking available. • No dressing or Green Room is available. Changing may be accommodated in adjacent public restrooms. • Hampden Hall is designed to support cultural arts events for the Englewood community. Englewood Arts, the Hampden Hall manager, reserves the right to accept or decline any rental request subject to availability and suitability of the intended use. Englewood Arts assumes no role or responsibility for the marketing of your event or ticket sales services. • Glitter and confetti are absolutely forbidden! • Additional fees will be charged for changes to the standard settings of the theatre lights. Only City and Englewood Arts personnel are authorized to make changes to the settings. FACILITY FEES: Event Rate — $150.00 per hour (2-hour minimum) Additional Charges — $150 to rearrange/move chairs (if requested) Excess cleaning fee/damage — Charges will be assessed based on actual cost for cleaning/repair. Additional charges may apply for special requests. Payment — Deposit of $75.00 is due with submission of application. Balance is due no later than the date of the event. Method of Payment: Checks made payable to Englewood Arts. Major credit cards accepted. INSURANCE: The Event Holder shall provide a certificate of insurance for the event(s) in the amounts listed below: Minimum Limits: Public Liability $1,000,000 Property Damage $1,000,000 Liquor Liability $1,000,000 (required with liquor license only) Page 550 of 553 All Certificates of Insurance shall be provided to Englewood Arts at least two weeks prior to the event and shall list the City of Englewood and Englewood Arts as “Additional Insured. Indemnification: The Event Holder shall indemnify and save harmless the City and Englewood Arts against any and all damages to property or injuries to or death to any person or persons, including property and employees or agents of the City, and shall defend, indemnify and save harmless the City from any and all claims, demands, suits, actions, or proceedings of any kind, or nature, including Workmen's Compensation claims, of or by any whomsoever, in any way resulting from or arising out of the operation in connection herewith, including operations of subcontractors and acts or omissions of employees or agents of the Event Holder. Notice: Hampden Hall exists in the Englewood Civic Center, which is owned by the Englewood Environmental Foundation and leased by the City of Englewood. Englewood Arts, under contract with the City of Englewood, manages Hampden Hall. Any changes in that contract may impact the event terms of this Use Application, and the parties understand and agree that changes may occur. I have read, understand, and accept all responsibility for the Terms and Conditions of this Use Agreement for Hampden Hall. Event Holder Signature _____________________________________Date______________________ Englewood Arts by Executive Director Signature_________________________________ Date___________ Hampden Hall Event Representative 303-806-8196 englewoodarts.org ADDITIONAL NOTES: Page 551 of 553 _ _______ _ _______ _ _______ _ _______ _ Page 552 of 553 From: Gina Cutright <gbertoluzzi@hotmail.com> Date: August 2, 2023 at 9:53:01 AM EDT To: Dad <ebertoluzzi@hotmail.com> Subject: Englewood Arts Dear Englewood City Council, My name is Gina Cutright and I would like to explain to you the importance of the Englewood Arts and Strings Attached Programs. I am honored to be a board member of such a special organization. An organization that can change the lives of our youth. Have you looked into the Strings Attached program? If you have not looked into this program in depth, please allow me to show you. Strings Attached provides music lessons to the most under privileged youths in the Englewood community. Some of these children do not have existent parents. There are some who live in hotels, basements, shelters or vehicles. These children do not have any realization that they have a purpose or talent. They just believe that they exist. But when they pick up a musical instrument and play music, they suddenly realize that they have a purpose. They have a talent. They have a reason to feel some sort of self- confidence. Strings Attached teachers are some of the most talented and dedicated musicians. Teachers who want to change the lives of children who feel they do not have a chance in life. How does Englewood Arts connect to this? It helps raise funds to provide musical instruments and pay the teachers. It provides the much needed supplies. I would like to speak on my own childhood and the affect that playing a musical instrument had on me. I felt a sense of pride and self worth when I played music. This gave me a reason to not feel worried of depressed. It is my belief that these emotions in a child will be carried into adulthood. That could result into a happier adult who is contributing to a better society. I’m thrilled that this program exists and I know that the impact it has can positively affect the future generations. Sincerely, Gina Marie Cutright Page 553 of 553