Bid Package.pdf

City of Delta Administration Department 360 Main Street Delta, CO 81416

INVITATION FOR BID

HEAVY EQUIPMENT ON-CALL SERVICES - BID #2025-7

Issue Date: April 21, 2025 Agent/Contact: David Hood, davidhood@cityofdelta.net Submissions must be received by: May 16, 2025, at 11:00 am

Introduction:

The City of Delta is accepting sealed bids for heavy equipment on-call services.

Administrative Instructions:

Bids shall be submitted electronically to lindsay@cityofdelta.net. All electronic submissions must be ADA-compliant and are subject to the Colorado Open Records Act.

Bids will be publicly opened at 11:00 am on May 16, 2025, in the City of Delta Conference Room located on the ground floor of City Hall. LATE BIDS WILL NOT BE ACCEPTED AND IT IS THE

RESPONSIBILITY OF THE RESPONDENT TO ENSURE THAT BIDS (INCLUDING SIGNED

ADDENDA IF ISSUED) ARRIVE BY 11:00 AM ON MAY 16, 2025.

Complete bid packets can be downloaded from the City webpage at City of Delta RFP. ADDENDA

WILL BE POSTED TO THE WEBSITE, AND IT IS THE BIDDER’S RESPONSIBILITY TO

DOWNLOAD, REVIEW, SIGN, AND INCLUDE ADDENDA WITH THEIR BID.

The City reserves the right to amend this IFB by an addendum at any time prior to the date set for receipt of bids. Addenda will be posted on the City website under the “Bids and RFP” tab at City of Delta RFP.

The City reserves the right to reject any or all bids without disclosing the reason, to waive any informalities in the bids received, and to accept the bid deemed most advantageous and in the best interest of the City.

mailto:davidhood@cityofdelta.net mailto:lindsay@cityofdelta.net https://cityofdelta.net/rfps https://cityofdelta.net/rfp.html

SCOPE OF WORK

The City of Delta is requesting bids from qualified contractors to provide on-call heavy equipment support services for excavation, removal, and support work related to City utilities. These services will be required in situations where the City is unable to perform the work due to the size, scope, or location of the utility infrastructure.

The awarded contractor(s) will provide services on an as-needed, on-call basis. This contract may be extended for future years by mutual agreement of both parties, provided pricing and service terms remain agreeable. The City requires a maximum response time of 90 minutes.

The scope of this work shall include, but is not limited to:

● Excavation and removal of City-owned utilities

● Equipment mobilization to and from job sites

● Operation of equipment with qualified personnel

● Emergency and scheduled on-call support

● Coordination with City staff on the job site

A bid tab is attached to list the size and type of equipment, hourly rate, minimum hours, and mobilization fee for each piece of equipment. Contractors may propose additional comparable equipment on the bid tab.

Each proposal must include:

● Hourly rate per piece of equipment, including operator

● Mobilization fee (if applicable)

● Minimum call-out hours

GENERAL TERMS AND CONDITIONS

These General Terms and Conditions apply to all offers made to the City of Delta (hereafter “City”) by all prospective vendors (hereinafter referred to as “Bidder”) regarding City solicitations, including but not limited to Invitations to Bid, Requests for Proposals, Requests for Quotes, and Requests for Qualifications. The following "Project Special Conditions" shall govern in case of any discrepancies in any or all of the following specifications, and the intent, either expressed or implied in these General Terms and Conditions, shall govern in the interpretation of the plans and specifications.

Contents of Bid

It is the responsibility of each Bidder before submitting a Bid to: (a) Examine the Contract Documents thoroughly, (b) Visit the site(s) to become familiar with local conditions that may affect the cost, progress, performance, or furnishing of the Work, (c) Consider federal, state, and local Laws and Regulations that may affect cost, progress, performance, or furnishing of the Work, (d) Study and carefully correlate Bidder's Observations with the Contract Documents, and (e) Notify City Engineer/Project Manager of all conflicts, errors, or discrepancies in the Contract Documents.

Bidders are responsible for confirming and verifying all project lines, grades, dimensions, specifications, plans, and project areas prior to submitting a bid.

Complete sets of Bidding Documents must be used in preparing Bids. The Owner does not assume any responsibility for errors or misinterpretations resulting from the use of incomplete sets of Bidding Documents.

Clarification and Modification of Bid Solicitation

Interpretations or clarifications considered necessary by the Engineer in response to such questions will be issued by Addenda and posted to the City webpage. Questions must be submitted in writing to David Hood, City Engineer (davidhood@cityofdelta.net). Only questions answered by formal written Addenda will be binding. Oral and other interpretations or clarifications will be without legal effect. Addenda may also be issued to modify the Bidding Documents as deemed advisable by the City. The City reserves the right to amend this IFB by an addendum at any time prior to the date set for receipt of bids. ADDENDA WILL BE POSTED ON THE CITY

WEBSITE UNDER THE NEWS “RFP” TAB AT CITY OF DELTA RFP.

Pricing Collusion and Taxes

All lump sum, alternate, and unit prices must include all required General Conditions line items necessary to complete the Work, including but not limited to the following (as required): all permits, insurance, supervision; layout and survey as needed; equipment and personnel; off-site management and administrative assistance; trash removal/demo material disposal/haul off to a separate dumpster or off-site location; miscellaneous equipment; mobilization; as-built drawings;

fuel, watchmen, flagmen, and site security; scheduling; small tools; drawings and printing expenses, and mailing costs.

https://www.cityofdelta.net/rfps

The City is exempt from Colorado State Sales and Use Taxes on materials and equipment to be incorporated in the work. Said taxes shall not be included in the bid price.

Preparation and Submission of Bid

The Bid Form is included with the Bidding Documents; additional copies may be obtained on the City of Delta website at City of Delta RFP.

Bids by corporations must be executed in the corporate name by the president or a vice president (or other corporate officer accompanied by evidence of authority to sign) and the corporate seal must be affixed and attested by the secretary or an assistant secretary. The corporate address and state of incorporation must be shown below the signature.

Bids by partnerships must be executed in the partnership name and signed by a partner whose title must appear under the signature and the official address of the partnership must be shown below the signature. All names must be typed or printed below the signature.

The Bid shall contain an acknowledgment of receipt of all Addenda, if applicable, on the Bid Form.

The address and telephone number for communications regarding the Bid must be shown.

Bid Security

All bid submissions for more than $50,000 shall include bid security in an amount equal to at least five percent (5%) of the amount of the bid. Bid security shall be accompanied by a certified check or bid bond equal to five percent (5%) of the bid amount, which shall also be enclosed within a sealed envelope, to be forfeited to the City if a bid is accepted and the bidder fails to sign a contract within fifteen (15) days of acceptance; provided, however, that this deadline may be extended by the Purchasing Agent in their discretion. All bids submitted without the necessary bid security will be rejected as nonresponsive

Modification of Withdrawal of Legitimate Offers

Bids may be modified or withdrawn by an appropriate document duly executed (in the manner that a Bid must be executed) and delivered to the place where Bids are to be submitted at any time prior to the Opening of Bids.

If within twenty-four (24) hours after Bids are opened any Bidder files a duly signed written notice with City and Engineer and promptly thereafter demonstrates to the reasonable satisfaction of City and Engineer that there was a material and substantial mistake in the presentation of its Bid, that Bidder may withdraw its Bid.

No bids may be withdrawn after the opening of bids without consent of the City of Delta for a period of sixty (60) days after the scheduled time of opening of bids. The successful bidder or bidders will be required to furnish satisfactory performance and payment bonds equal to the full amount of each bid or proposal https://www.cityofdelta.net/rfps

Evaluation of Offers and Criteria

City reserves the right to reject any and all Bids, to waive any and all informalities not involving price, time, or changes in the work, and the right to disregard all nonconforming, nonresponsive, unbalanced, or conditional Bids. Also, City reserves the right to reject the Bid of any Bidder if City believes that it would not be in the best interest of the Project to make an award to that Bidder, whether because the Bid is not responsive or the Bidder is unqualified or of doubtful financial ability or fails to meet any other pertinent standard or criteria established by City. Discrepancies in the multiplication of units of Work and unit prices will be resolved in favor of the unit prices.

Discrepancies between the indicated sum of any column of figures and the correct sum thereof will be resolved in favor of the correct sum.

In evaluating Bids, City will consider the qualifications of the Bidders, whether or not the Bids comply with the prescribed requirements, and such alternates, unit prices, and other data as may be requested herein and/or in the Bid Form or prior to the Notice of Award.

City will consider the qualifications and experience of Subcontractors, Suppliers, and other persons and organizations through the request of written documentation of relevant experience with reference to a minimum of three (3) projects of similar scope and size. The statement shall include equipment and manpower available for utilization on the project. City also may consider the operating costs, maintenance requirements, performance data, and guarantees of major items of materials and equipment proposed for incorporation in the Work when such data is required to be submitted prior to the Notice of Award.

The City reserves the right to reject any or all proposals without disclosing the reason, to waive any information in the proposals received, and to accept the proposal deemed most advantageous and in the best interest of the City. The City will refer to the Evaluation Guide below in evaluating each Bidder. The criteria below will be weighted in the evaluation of the bids accordingly. Although some of the elements listed below will be weighted more heavily than others, all requirements are considered necessary for evaluation.

City of Delta Request for Proposals Evaluation Guide

Assessment Criteria Firm A Firm B Firm C Firm D

Pricing (1-10 points)

Experience and Qualifications (1-10 points)

Understanding of the Project (1-10 points)

Capacity to fulfill Contract Terms & Conditions (1-10 points)

Reference (1-10 points)

Total Maximum Points (Total Points - 50) 0 0 0 0

Award of Contract

When the City gives a Notice of Award to the successful Bidder, it will be accompanied by the required number of unsigned counterparts of the Agreement with all other written Contract Documents attached. Within ten business days thereafter, Contractor shall sign and deliver the required number of counterparts of the Agreement and attached documents to the Owner with the required Bonds. The City shall deliver one fully signed counterpart to the Contractor after approval by City Council at the next regularly scheduled meeting.

If the contract is to be awarded, it will be awarded to the lowest Bidder whose evaluation by City indicates that the award will be in the best interests of the Project.

Local Contractor Preference

Whenever competitive bidding is required by law for any contract involving materials, services, and/or labor furnished to the City for which appropriation or expenditure may be reasonably expected not to exceed five hundred thousand dollars ($500,000) in the aggregate for any fiscal year, preference shall be given to each qualified local business in the manner more particularly described in this Section.

A qualified local business means an individual or entity who, at the time of submitting a bid for a contract relating to a City of Delta purchase or work project, maintains a principal place of business located within the City for primary preference or within Delta County for secondary preference. Businesses which maintain satellite offices within the City shall not be considered local for purposes of this definition.

Notwithstanding other provisions of this Chapter, in the course of evaluating bids or proposals pertaining to any contract for the purchase or lease of supplies, materials, equipment, or other personal property, and/or any contract for labor to be performed on a public works project, and/or any professional services contract, the City shall provide the following percentage preferences for local goods and services provided by local vendors when quality, delivery time, and services are judged by the Purchasing Agent to be essentially equal: five percent (5%) primary preference for goods/services in the City and two point five percent (2.5%) secondary preference for goods/services in Delta County.

Each otherwise eligible contract bidder must sufficiently demonstrate ownership of a qualified local business in the related bid proposal documents.

When applying this provision to specific contract settings, the City will continue to give appropriate consideration and weight to all other relevant information and factors customarily used for comparison of bids in the process of selecting the lowest responsible bidder, including but not limited to the following:

● The relative quality of any proposed material items and their conformity with pertinent contract specifications.

● The relative benefit to the City of proposed delivery and discount terms and conditions, and proposed terms of warranty and repair for material items.

● The overall experience, qualification, and reputation of the bidder for performance of similar contracts.

SPECIAL TERMS AND CONDITIONS

IFB Package: Available April 21, 2025, online at the City of Delta RFP web page City of Delta

RFP.

Question Deadline: April 30, 2025, at 4:00 pm. All questions regarding this IFB are to be emailed to davidhood@cityofdelta.net. Any questions received after the deadline will not be addressed.

Written responses to questions will be posted on the City webpage via addendum no later than May 2, 2025, at 4:00 pm.

Bid Submission Cut-Off: May 16, 2025, at 11:00 am. All bids shall be submitted electronically via email to lindsay@cityofdelta.net. The subject line must state “BID ENCLOSED -ON-CALL SERVICES”. Do not include any bid information in the body of the email.

Public Bid Opening: Bids will be opened publicly on May 16, 2025, at 11:00 am in the downstairs conference room of Delta City Hall at 360 Main Street, Delta, CO 81416.

Rejection of Bids: The City of Delta reserves the right to reject any or all bids without disclosing the reason.

Late Bids: Bids not received by the Bid Submission deadline of May 16, 2025, at 11:00 am are late and will not be accepted. The City Council reserves the right to reject any or all bids, waive any informalities in bids, and accept the bid that is in the best interest of the City of Delta, Colorado.

Compliance with OSHA

Bidder agrees that all item(s) offered comply with all applicable Federal and State Occupational Safety and Health Act laws, standards, and regulations, and that Bidder will indemnify and hold the City of Delta harmless for any failure to so conform.

BID FORM

PROJECT IDENTIFICATION: Heavy Equipment On-Call Services

Bid Submission Cut-Off: May 16, 2025, at 11:00 am. All bids shall be submitted electronically via email to lindsay@cityofdelta.net, must be ADA-compliant, and are subject to the Colorado Open Records Act.

Public Bid Opening: May 16, 2025, at 11:00 am at the City of Delta City Hall, 360 Main Street, Delta, CO 81416.

Name of Vendor: _____________________________________________

SUBMITTED on: _________________________________________ 2025

End Bid Form

ADDITIONAL REQUIREMENTS (if applicable):

PERFORMANCE AND PAYMENT BONDS: The successful bidder must furnish satisfactory performance and payment bonds equal to the full amount of each bid or proposal.

BID SECURITY: All bid submissions for more than $50,000 shall include bid security in an amount equal to at least five percent (5%) of the amount of the bid.

INSURANCE REQUIREMENTS: The successful bidder must provide proof of insurance coverage, including general liability and workers' compensation, as specified in the procurement code.

SUBCONTRACTOR LIST: The bid must include a list of all subcontractors who will be performing work on the project, along with their qualifications and experience.

REFERENCES: The bid must include 3 references of equal type and scope within the past 3 years.

PROJECT SCHEDULE: The bid must include a proposed project schedule, detailing the timeline for completion of the work.

Equipment Size/ Type Hourly Rate Minimum Hours Mobilization Fee

Dozer $ $

Loader $ $

Mini Excavator $ $

Excavator $ $

Dump Truck $ $

Truck and Dump Trailer $ $

Trailer‐Mounted Pump $ $

List Additional Items Below

Bid Tab ‐ Heavy Equipment Fees

PROFESSIONAL SERVICES AGREEMENT

THIS AGREEMENT is entered into as of this _____ day of ___________________, 2025, by and between CITY OF DELTA, a Colorado home rule municipality (the "City") and_____________________________, a ___________________ (the "Professional")

WITNESSETH

In consideration of the mutual covenants and obligations herein expressed, it is agreed by and between the parties hereto as follows:

1. SCOPE OF PROFESSIONAL SERVICES

Professional agrees to provide services in accordance with the Scope of Professional Services and Fee Schedule attached hereto as Exhibit A and incorporated herein by this reference (the “Services”).

2. TIME OF COMMENCEMENT AND COMPLETION OF SERVICES

The Services to be performed pursuant to this Agreement shall be initiated upon execution of this Agreement and completed with due diligence thereafter. Time is of the essence in this Agreement. Provided, however, that any payment obligations of the City for fiscal years after the year in which this Agreement is executed is subject to and contingent upon annual budgeting and appropriation by City.

3. PROFESSIONAL RESPONSIBILITY

Professional shall be responsible for the professional quality, technical accuracy, timely completion and coordination of all Services rendered by Professional, and shall, without additional compensation, promptly remedy and correct any errors, omissions or other deficiencies. Professional represents that it has the special expertise and background necessary to provide the City with the Services listed on Exhibit A, and the City is expressly relying on the technical and professional expertise of Professional.

4. COMPLETION

In consideration of the Services to be performed pursuant to this Agreement, the City agrees to pay Professional in accordance with the Fee Schedule included in Exhibit A, including the not-to-exceed amount, if applicable. Monthly partial payments based upon Professional's billings are permissible. The amounts of all such partial payments shall be based upon Professional's progress in completing the Services. Final payment shall be made following acceptance by the City of the completed scope of work of the Services.

5. CITY REPRESENTATIVE

The City hereby designates David Hood as its representative and authorizes them to make all necessary and proper decisions with reference to this Agreement. All requests for contract interpretations, changes, clarifications, or instructions shall be directed to the City representative.

2975795.2

6. INDEPENDENT CONTRACTOR STATUS

Professional and any persons employed or retained by Professional for the performance of Services hereunder shall be independent contractors and not agents or employees of the City. Any provisions in this Agreement that may appear to give the City the right to direct Professional as to details of doing work or to exercise a measure of control over the work mean that Professional shall follow the direction of the City as to end results of the work only.

A. Professional is providing Services independently and, therefore, is not an employee, partner, or joint venturer with the City, and neither party has the authority to bind the other in any respect. Professional warrants to the City that Professional understands the difference in status between an independent contractor and an employee, and Professional acknowledges and stipulates that Professional is neither eligible nor entitled to statutory or legal benefits or provisions of labor codes or other such similar statutes. The parties further agree that the City shall not withhold from Professional unemployment insurance, social security, taxes or any other withholdings. Professional agrees to be responsible for all such payments required by law.

B. Taxes. Professional acknowledges and agrees to report all payments received from the City on its federal and state income tax returns and is obligated to pay any and all resulting federal and state income tax obligations. Professional will indemnify the City for any such payments required but not paid.

C. No Insurance or Benefits. Professional acknowledges and agrees that it is not covered by any of the City's insurance, including the City’s workers' compensation coverage, and is not entitled to any benefits otherwise provided to the City's employees, including vacation pay, sick leave, retirement benefits, social security, disability benefits, employee health benefits of any kind, and workers' compensation benefits. During the Term of this Agreement, Professional will carry any insurance required by law, including, without limitation, professional liability insurance and general liability insurance.

7. PERSONAL SERVICES

It is understood that the City enters into this Agreement based on the special abilities of Professional and that this Agreement shall be considered as an agreement for personal services.

Accordingly, Professional shall neither assign any responsibilities nor delegate any duties arising under this Agreement without the prior written consent of the City.

8. ACCEPTANCE NOT WAIVER

The City's approval of drawings, designs, plans, specifications, reports and incidental work or materials furnished hereunder shall not in any way relieve Professional of responsibility for the technical accuracy of the Services. The City's approval or acceptance of, or payment for, any Services shall not be construed or operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement.

9. DEFAULT

Each and every term and condition shall be deemed to be a material element of this Agreement. In the event either party should fail or refuse to perform according to the terms of this Agreement, such party may be declared in default thereof by written notice from the other party.

10. REMEDIES

In the event a party has been declared in default hereof, such defaulting party shall be allowed a period of five (5) days within which to cure said default. In the event the default remains uncorrected, the non-defaulting party may elect to (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance; or (c) avail himself of any other remedy at law or equity. In the event Professional fails or neglects to carry out the Services in accordance with this Agreement, the City may elect to make good such deficiencies and charge Professional therefor.

11. TERMINATION BY THE CITY

The City may terminate this contract at any time for its convenience. Professional shall be paid pro rata for Services completed to the date of termination pursuant to Exhibit A.

12. LIMITATION ON DAMAGES

The partes agree that Professional’s remedies for any claims asserted against the City shall be limited to proven direct damages in an amount not to exceed amounts due under this Agreement and that the City shall not be liable for indirect, incidental, special, consequential, or punitive damages, including but not limited to lost profits.

13. INSURANCE

Professional agrees to procure and maintain, at its own cost, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by Professional under this Agreement in accordance with this Section 13. Such insurance shall be in addition to any other insurance requirements imposed by this Agreement or by law.

Professional shall not be relieved of any liability, claims, demands, or other obligations assumed in this Agreement 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.

Professional shall procure and maintain, and shall cause any subcontractor of the Professional to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurers acceptable to the City. All coverages shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by Professional pursuant to this Section 13. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage.

A. Workers’ Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this Agreement, 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. Evidence of qualified self-insured status may be substituted for the Worker's Compensation requirements of this paragraph. Regardless of the limitations set forth herein, such insurance shall at a minimum meet the required limits under Colorado law.

B. Commercial General Liability insurance with a minimum combined single limits of ONE MILLION ONE HUNDRED NINETY-FIVE THOUSAND DOLLARS ($1,195,000) aggregate for each occurrence (FOUR HUNDRED TWENTY-FOUR THOUSAND DOLLARS, $424,000, per injured person), but in no event shall the policy reflect amounts less than those set forth in the Colorado Governmental Immunity Act (“CGIA”), C.R.S. § 24-10-114, as may be adjusted from time to time. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall contain a severability of interests provision.

C. Comprehensive Automobile Liability insurance with a minimum combined single limits for bodily injury and property damage of not less than FIVE HUNDRED THOUSAND ($500,000) each occurrence and ONE MILLION DOLLARS ($1,000,000) aggregate with respect to each of Professional's owned, hired, and non-owned vehicles assigned to or used in performance of the Services. The policy shall contain a severability of interests provision. If Professional has no owned automobiles, the requirements of this Paragraph (C) shall be met by each employee of the Professional providing Services to the City under this Agreement.

D. Errors and Omissions insurance in the amount of $500,000 per claim, as applicable.

The policy required by Paragraph (B) above shall be endorsed to include the City and its officers and employees as additional insureds. Every policy required above shall be primary insurance and any insurance carried by the City, its officers, or its employees, shall be excess and not contributory insurance to that provided by Professional. No additional insured endorsement to any policy shall contain any exclusion for bodily injury or property damage arising from completed operations. Professional shall be solely responsible for any deductible losses under any policy required above.

The certificate of insurance required by the City shall be completed by Professional's insurance agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City prior to commencement of the Agreement. No other form of certificate shall be used.

The certificate shall identify this Agreement and shall provide that the coverages afforded under the policies shall not be cancelled, terminated or materially changed until at least thirty (30) days’ prior written notice has been given to the City. The completed certificate of insurance shall be sent to the City.

Failure on the part of Professional to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of contract upon which the City may immediately terminate this Agreement, or at its discretion the City may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by the City shall be repaid by Professional to the City upon demand, or the City may offset the cost of the premiums against any monies due to Professional from the City. The City reserves the right to request and receive a certified copy of any policy and any endorsement thereto.

The parties hereto understand and agree that the City is relying on, and does not waive or intend to waive by any provision of this agreement, the monetary limitations and any other rights, immunities, or protections provided by the Colorado Governmental Immunity Act, C.R.S.

§ 24-10-101, et seq., or otherwise available to the City, its officers, or its employees.

14. INDEMNIFICATION

Professional agrees to indemnify and hold harmless the City, its officers, employees, and insurers, from and against all liability, claims, and demands, including costs of defense and attorney fees, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this contract, if such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the omission, error, professional error, mistake, or negligence, of Professional, any subcontractor of Professional, or any officer, employee, representative, or agent of Professional or of any subcontractor of Professional, or which arise out of any workers’ compensation claim of any employee of Professional or of any employee of any subcontractor of Professional, except to the extent caused by the negligent acts or omissions of the City, its officers or employees. This indemnification provision shall survive the completion of the Services and the satisfaction, expiration, or termination of this Agreement.

15. OPEN RECORDS

The City and its duly authorized representatives shall have access to any books, documents, papers, and records of Professional and its subcontractors that are related to this Agreement for the purpose of making audit, examination, excerpts, and transcriptions.

The City is subject to and bound by the Colorado Open Records Act, C.R.S. § 24-72-101, et seq. Any and all documents Professional prepares pursuant to this Agreement may be subject to production and/or reproduction pursuant to those statutes, irrespective of any copyrights held by Professional. Professional hereby waives any claims of any kind whatsoever against the City for the City’s compliance or attempted compliance with the provisions of the Open Records Act.

16. APPROPRIATION

No provision of this Agreement shall be construed or interpreted: i) to directly or indirectly obligate the City to make any payment in any year in excess of amounts appropriated for such year; ii) as creating a debt or multiple fiscal year direct or indirect debt or other financial obligation whatsoever within the meaning of Article X, Section 20 of the Colorado Constitution or any other constitutional or statutory limitation or provision; or iii) as a donation or grant by the City to or in aid of any person, company or corporation under applicable Colorado law.

17. NOTICE

Any notices required or permitted under this Agreement shall be in writing and shall be deemed given when personally delivered or, if mailed, three (3) days after being deposited in the United States certified mail, postage prepaid, return receipt requested, and addressed as follows. Either party may change the address to which notices should be delivered by providing notice in accordance with this Section.

TO CITY: City of Delta

360 Main Street Delta, Colorado 81416 Attn: David Hood Email: davidhood@cityofdelta.net

TO PROFESSIONAL: _____________________________

Email: _______________________

18. GOVERNING LAW; VENUE

This Agreement is being executed and is to be performed in the State of Colorado and shall be enforced and construed according to the laws of the State of Colorado. Venue for any dispute arising out of this Agreement shall be in the District Court for Delta County, Colorado.

19. ATTORNEY FEES

Should this Agreement become the subject of legal action to resolve a claim of default in performance by any party, including the collection of past due amounts, the non-prevailing party shall pay the prevailing party’s reasonable attorneys’ fees, expenses, and court costs. All rights concerning remedies and/or attorneys’ fees shall survive any termination of this Agreement.

20. SEVERABILITY

In the event any part of this Agreement is found to be void, illegal, invalid or unenforceable under present or future laws, then, in such event, the remaining provisions of this Agreement shall nevertheless be binding with the same effect as though such part was deleted and shall be construed to effectuate, as nearly as possible, the original intentions of the parties based upon the entire contract, including the invalidated provision.

21. REPRESENTATION

Each person signing this Agreement represents and warrants that said person is fully authorized to enter into and execute this Agreement and to bind the party it represents to the terms and conditions hereof.

[Remainder of page intentionally left blank.]

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

CITY OF DELTA, COLORADO PROFESSIONAL

By: _________________________ By: _________________________ Name: Name:

Title: Title:

ATTEST:

City Clerk

EXHIBIT A

Scope of Professional Services and Fee Schedule